1. The only relief pressed at the time of hearing, by Sri. H. B. Datar, the learned Counsel for the petitioner, in this Writ Petition, under Article 226 of the Constitution is that we should direct the State of Mysore and the Director of Printing, Stationery and Publication, Bangalore (Respondents 1 and 2 respectively) to promote the petitioner as an Overseer with effect from 1-12-1961 and as a Supervisor with effect from 1-4-1963, and further to give him all consequential benefits, by the issue of a Writ of Mandamus or any other appropriate Writ, order or direction as this court deems fit.
2. The material facts of this case are these: The petitioner joined service in the Government Central Press, Bangalore, as a Compositor in the year 1941. In 1945, he was promoted as a Computer. On 1-7-1950, he was deputed to work in the Central Jail Press Bangalore, as Officiating Foreman, He occupied that position as an O. O. D. On 13-11-57, the Mysore Public Service Commission, selected the petitioner as Foreman. Thereafter, he was relieved from his post as Foreman in the Central Jail Press and he joined the Government Central Press on 5-12-1957 as Foreman. From these facts, it is clear that the petitioner was working as Foreman from 1-7-1950 though his selection as Foreman by the Public Service Commission, was effected only on 5-12-1957.
3. Two posts of Overseers fell vacant on 1-12-1961. One of them was reserved for being filled up by promotion. The petitioner's case is mat he should have been promoted to that post. He alleges that instead of promoting him, thesecond respondent had improperly promoted the third respondent, who was junior to him. It appears that the petitioner made several representations in that regard. But they went unheeded. Even when the petitioner's representations were pending consideration, the second respondent, by his office Order No. 727/62-63 dated 29-3-1963 promoted the third respondent as a Supervisor. The third respondent joined service as Works Clerk on 20-4-1955. The Public Service Commission selected the petitioner as Foreman on 13-11-1957. The third respondent was selected as Foreman by the Public Service Commission on 9-1-1958. He officiated as a Foreman only from 10-9-1956. The petitioner, without doubt, was senior to the third respondent as Foreman. Hence, prima facie, the petitioner's case should have been considered for promotion before considering the case of the third respondent.
4. In support of his contention that his case should have been considered for promotion before the third respondent's case was considered for promotion, the petitioner relies on Rule 2(a) of the Mysore Government Servants' (Seniority) Rules, 1957, issued by the Government as per No. GAD (OM) 14 GRR 57, dated 7th February 1958. That Rule provides :
'Subject to the provisions hereinafter contained the seniority or a person in a particular cadre of service or class of post shall be determined as follows :
(a) Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post;.....'
5. The petitioner contends that both himself and the third respondent were borne on the same cadre of service and therefore, his substantive appointment as Foreman being earlier than that of the third respondent, his claim for promotion was superior to that of the third respondent. It was urged on behalf of the petitioner that the action of the second respondent in promoting the third respondent ignoring the superior claims of the petitioner is violative of Articles 14 and 16 of the Constitution.
6. In the counter-affidavit filed on behalf of the first respondent, the only defence taken is that in computing the length of services of the petitioner as Foreman, his services as Foreman in the Press attached to the Central Jail, cannot be taken into consideration and if that service is left out, he had not the required qualification on 1-12-1961 for being promoted as an Overseer. In other words, the case for the State is that the petitioner was not promoted on 1-12-1961 because he did not possess the necessary qualification. We have to see whether the contention taken on behalf of the Government is correct.
7. The counter-affidavit filed on behalf of the third respondent does not raise any additional legal plea. The other averments found in that counter affidavit are not relevant for our present purpose.
8. Mysore General Service (Printing, Stationery and Publications Branch) Cadre and Recruitment Rules, 1960, framed under Article 309of the Constitution provide that the posts of Overseers should be filled up partly by direct recruitment and partly by promotion. 50% of the posts are reserved for the promotees from the Cadre of Foreman and the other 50% being available for direct recruitment. The qualifications prescribed for the promotion are : (i) all the Higher Grade Examination in printing (Madras) or a Diploma in printing and allied subjects; and (ii) five years service as Foreman in the Department.
9. There is no dispute that the petitioner possessed on the relevant date, the first of the two qualifications prescribed. The question for decision is whether on that date he had five years service as Foreman in the Department. The petitioner contends that he had, whereas the respondents assert that he did not have. If he was qualified for being promoted as Overseer on 1-12-1961, there is no dispute that he was qualified to be promoted as Supervisor thereafter. Hence the crucial question for decision is whether the petitioner was qualified for promotion as Overseer on 1-12-1961, the date on which the third respondent was promoted.
10. If the petitioner's service as Foreman in the Press attached to the Central Jail has to be taken into consideration there is no dispute that the petitioner was qualified to be promoted as Overseer on 1-12-1961. But it was urged on behalf of the respondents that the service cannot be taken into consideration as it is not a service rendered 'in the department', thereby meaning in the Department of Printing, Stationery and Publication.
11. The post of Foreman attached to the Central Jail Press is required to be filled up by deputation from the Government Press, as could be seen from the Mysore fail Service Cadre and Recruitment Rules, 1959, which means that the officer has to be borne on the cadre of the Printing, Stationery and Publication Branch, but at the same time serve as an O. O. D. in the Department of the Mysore Jail Services. That being so, his permanent place will be in the Department of Printing, Stationery and Publication.
12. Rule 53(b)(i) of the Mysore Civil Services Rules provides :
'Service in another post, other than a post carrying less pay referred to in Clause (i) of Rule 20(A), whether in a substantive or officiating capacity, service on deputation out of India and leave except extraordinary leave taken otherwise than on Medical Certificate shall count for increments in the time-scale applicable to the post on which the Government servant holds a lien, as well as in the time-scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended.' To the present case, Rule 20 (A) does not apply.
13. In the State of Mysore v. M. H. Bel-lary, : (1966)ILLJ50SC , the Supreme Court was called upon to consider the true scope of Rule 50 (b) of the Bombay Civil Service Rules. That Rule is similar to Rule 53(b)(1) referred to ear-liar. Interpreting that Rule, the Supreme Courtlaid down that the service of an officer on deputation in another Department is treated by the rule as equivalent to service in the parent Department and it is this equation between the services in the two Departments that forms the basis of Rule 50(b) ; so long, therefore, as the service of the employee in the new Department is satisfactory and he is obtaining the increments and promotions in that Department, it stands to reason that that satisfactory service and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotions which are open on seniority-cum-merit basis. That decision governs the facts of the present case.
14 Therefore, it is clear that respondents 1 and 2 erred in not taking into consideration the services of the petitioner as Foreman in the Press attached to the Central Jail while considering the question of promotion to the post of Overseer. It that service had been taken into consideration, as it ought to have been, there is no doubt that the petitioner was far senior to the third respondent as a Foreman, It is nor the case of respondents 1 and 2 that the petitioner was not suitable for promotion. Promotion had been denied to the petitioner solely on the ground that the services rendered by him as Foreman, as an O. O. D. in the Press attached to the Central Jail, cannot be taken into consideration. This view is obviously wrong.
15. But, what is disturbing in this case Is the attitude of the second respondent. He persistently preferred to promote the third respondent over the head of the petitioner without any just cause. That is not all. In response to the representations made by the petitioner, the Government wrote to the second respondent on 31-1-1963 as follows :
'Sub: Representation from Sri P. M. Nan-jundiah, and Sri M. P. Bommanniah, Foreman, in the matter of promotion as Overseer.
I am directed to refer to the correspondence resting with your letter No. A-651 dated 17-10-1962, on the subject noted above and to state that according to Rule 30 of the Rules accompanying G. O. No. 6.105 C. R. B. 1-34-1, D/- 3-7-1964,' a member of a service shall take rank in any grade of the service according to the date on which he is substantively appointed to such grade. Therefore, the late of appointments of Sri. P. M. Nanjundiah and Sri. M. P. Bommanniah, as Foreman will have to be taken for fixing the seniority as both of them were select, ed by the P. S. C. provided further none of them has been confirmed so far. The Mysore Government Servants Seniority Rules 57 published on 7-2-1958 under G. No. No, G. A. D. (OM) 14 G. R. R. 57 dated 7-2-58 do not have retrospective effect, seniority not settled till that date, will have to be settled in accordance with these rules.
(2) I am therefore to request you to take immediate action to fix the seniority of the two officials in the light of the principles stated above. After this is done, the senior of the two officials may be promoted to the promotional vacancy of Overseer provided he is qualifiedfor such promotion under cadre and Recruitment Rules of your Department.
Sd/- Jayakumar Anagol
Under Secretary to Government
In that letter the Government took a correct stand. It required the second respondent to take immediate action to fix the inter se seniority of the petitioner and the third respondent in the light of the principles enunciated in that letter. It further asked the second respondent that after fixing the seniority, the senior of the two officials may be promoted to the promotional vacancy of Overseer provided he is qualified for such promotion under the Cadre and Recruitment Rules of the Department. It is not known whether the Government's directive was obeyed. This matter requires investigation.
16. In the counter-affidavit filed by the Government, in this case, it took the stand, as mentioned earlier, that on 1-12-1961, the petitioner was not qualified to be promoted as Overseer. That counter-affidavit was filed on 18-6-1965. It may be remembered that M. H. Bellary case : (1966)ILLJ50SC referred to earlier, to which the Government of Mysore was a party, had been decided by the Supreme Court on 25-3-1964. But, even thereafter the Government and the Director did not become wiser. The Director persisted in his unreasonable attitude and the Government continued to be callous.
17. For the reasons mentioned above, this petition is allowed. A Writ of Mandamus will be issued to respondents 1 and 2 directing them to promote the petitioner as an Overseer with effect from 1-12-1961 and as a supervisor with effect from 1-4-1963 and to give him all consequential benefits.
18. The petitioner is entitled to his costs of this petition. Advocate's fee Rs. 100.
19. A copy of this judgment will be sent to the Chief Secretary to me Government of Mysore, for information.