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Shariyat Ali Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1755 of 1966
Judge
Reported inAIR1970Kant112; AIR1970Mys112
ActsStates Reorganisation Act, 1956 - Sections 116 and 117
AppellantShariyat Ali
RespondentState of Mysore
Appellant AdvocateS. Rangaraj, Adv.
Respondent AdvocateN.S. Chandrashekhar, High Court Govt. Pleader
Excerpt:
.....of power of subordinate legislation, whereas section 84 is a provision under the act and it confers power on the commissioner to make appointment. even, if the rules state that the state government is an authority, that will not have any overriding effect on the provisions of the act. irrespective of the validity of the rule, the provisions of the legislation will prevail over the subordinate legislation. - hence a person in the lower post cannot complain that a higher post carries higher salary; nor can he make any grievance of the fact that if he is promoted to the lower of the two posts, he is not paid the salary of the higher post, he can complain of prejudice only if the pay scale of a post to which he is promoted in the new state is lower than the pay scale of a similar or..........promotion was the first promotion after he got allotted to this state, he was entitled to the pay scale attached to the post of hakeem class ii of his parent state of hyderabad as that would have been the post to which he would have been promoted had he continued in hyderabad, because that was the post immediately next higher to his post and therefore the first promotional post with reference to him. 3. the protection of service conditions in respect of pay scales which he depends upon is one set out in paragraph 5 of the official memorandum dated 12th may 1957 which is extracted in the judgment of this court reported in n. a. kulkarni v. state of mysore, (1965) 1 law rep. 93 at p. 96. the relevant portion reads as follows:-- 'they have come to the conclusion that it would be equitable.....
Judgment:

Narayana Pai, J.

1. This is a writ petition for a direction in the nature of mandamus to be issued to the State Government for fixing the pay of the petitioner on promotion as Inspecting Officer in the Department of Indian Medicine with effect from 23-9-1958 in the pay scale of Rs. 350-600 OS equal to Rs. 250 to 550 IG.

2. The petitioner is an allottee from the erstwhile State of Hyderabad to the New State of Mysore. At the time of allotment upon the Reorganisation of the States Act, i.e., 1-11-1956, he was holding the position of Mustanad Attiba on a pay scale of Rs. 205 to 450 OS, equivalent to Rs. 176 to 375 IG. After reorganisation, he was promoted as Inspecting Officer on 23-9-1958. The claim of the petitioner is that because the said promotion was the first promotion after he got allotted to this State, he was entitled to the pay scale attached to the post of Hakeem Class II of his parent State of Hyderabad as that would have been the post to which he would have been promoted had he continued in Hyderabad, because that was the post immediately next higher to his post and therefore the first promotional post with reference to him.

3. The protection of service conditions in respect of pay scales which he depends upon is one set out in paragraph 5 of the Official Memorandum dated 12th May 1957 which is extracted in the judgment of this Court reported in N. A. Kulkarni v. State of Mysore, (1965) 1 Law Rep. 93 at p. 96. The relevant portion reads as follows:--

'They have come to the conclusion that it would be equitable to allow every person affected by reorganisation the limited protection of drawing pay on promotion to a post one stage above the one held by him in a substantive capacity or on which he had officiated continuously for a minimum period of three years immediately before the date of reorganisation, on the scale of pay that would have been admissible to him on such promotion in his parent State before reorganisation if such scale is favourable than the scale attached to the post in the new or reorganised State to which he is allotted.'

4. The argument of Mr. Rangaraj, learned counsel for the petitioner is that the position of Inspecting Officer to which his client has been promoted is the immediately superior promotional post in the State of Mysore above Mustanad Attiba, that the post immediately above the said position of Mustanad Attiba in the erstwhile State of Hyderabad was that of Unani Hakeem Class II on a pay scale of Rs. 250 to Rs. 550 IG. That the position of Mustanad Attiba was equivalent to that of senior Hakeem Class III of Hyderabad is not disputed. Nor is it now disputed, having regard to the provisions of the Cadre and Recruitment Rules of the Hyderabad Medical and Health Services, now produced as Annexure A to the petitioner's affidavit of 7/8th August 1969, that recruitment to the post of Class II Hakeems was made to the extent of 50 per cent by promotion from Class III Hakeems.

5. The question, however, is whether the mere fact that the post of Hakeems Class II was the first promotional post above the post held by the petitioner on 1-11-1956 is by itself sufficient to entitle him to the pay scale attached to that post on being promoted as Inspecting Officer in this State. It appears to us that such a proposition does not flow from the paragraph extracted above. It will be seen that the essence of the paragraph is that the benefit of higher pay scale which a Government Servant would have got in his parent State had he continued there is not to be taken away from him for reason only of the fact that he has got allotted to another State under the States Reorganisation Act. The said protection is also limited to the first promotion in the new State. Before one could say that a pay scale is higher than another pay scale with reference to posts, there must first be an equivalence in the matter of functions and responsibilities of the posts. If post 'A' is undoubtedly superior to post 'B', the fact that the former post has a higher pay scale is the natural consequence of the difference between the two posts. Hence a person in the lower post cannot complain that a higher post carries higher salary; nor can he make any grievance of the fact that if he is promoted to the lower of the two posts, he is not paid the salary of the higher post, He can complain of prejudice only if the pay scale of a post to which he is promoted in the new State is lower than the pay scale of a similar or equivalent post in his parent State, to which he would have been promoted. If the post in the parent State which carries higher salary is a superior post whose functions and responsibilities are more important and heavier than those of the post to which he is promoted in the new State, he cannot complain of any prejudice at all. What the paragraph cited above proposes to do is to meet a grievance or to avoid a prejudice. If prejudice or grievance can arise only if the two posts are of equal importance and the salary of the post in the parent State is higher than the salary of the post in the new State, then, that is the only situation sought to be met by the said paragraph.

6. Before, therefore, we can accept the petitioner's contention that he is entitled to the pay scale of Rs. 250 to 550 IG attached to Class II Hakeems in erstwhile Hyderabad State, it must be shown that the functions and responsibilities attached to the said post are same as, or similar to, those attached to the post of Inspecting Officers in the new State of Mysore. The matter does not appear to have been examined either by the petitioner or by the State Government from this point of view.

7. Hence, the only direction that we can issue, in the circumstances, is that the State Government do examine the question whether the post of Hakeems Class II in erstwhile State of Hyderabad is a post equivalent to the post of Inspecting Officers of this State in the matter of functions and responsibilities attached to them and that if they find that there is such equivalence, they do give to the petitioner the benefit of the scale of pay Rs. 250 to Rs. 550 IG, attached to the post of Class II Hakeem in erstwhile Hyderabad State, with effect from the date of his promotion in this State as Inspecting Officer, i.e., 23-9-1958.

8. We make a direction accordingly.

9. Order accordingly.


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