1. The petitioner who is a Commercial Tax Officer has presented this petition under Article 226 of the Constitution requesting this Court (1) to quash the Notification No. FD 105 CSE 60, dated the 19th November 1962, issued by Respondent 1, by issuing a Writ of Certiorari or any other appropriate Writ, order or direction; and (2) to direct Respondent-1 to promote the petitioner as Inspector of Commercial Taxes with, effect from 19-11-1962 by issuing a Writ of Mandamus or any other appropriate writ, order or? direction as this court may deem fit under the circumstances of the case.
2. The petitioner states that he is a double graduate of the University of Bombay and was appointed on 24th April 1946 as Sales Tax Inspector in the Sales Tax Department of the erstwhile State of Bombay. On and March 1953 he was promoted as Sales Tax Officer, Grade in, on the scale of pay of Rs. 250-15-400-EB-20 500.
3. In the Sales Tax Department of the former State of Bombay, though there were two grades of Sales Tax Officers, viz., Sales Tax Officers Grades II and III -- there were no separate posts for each of those two grades and the posts were interchangeable. The officers belonged to the same cadreand wore discharging the same duties, powers and responsibilities and enjoying the same territorial and pecuniary jurisdiction. He (petitioner) was holding the substantive post of Sales Tax Officer Grade III -- at Hubli, for the Districts of Dharwar and North Kanara on 1-11-1956 when his services were allotted to the new State of Mysore consequent on the Reorganisation of States. Thereafter he continued to work in those two Districts till 17-5-1957 when he was transferred to Bangalore as Headquarters Assistant to the Commissioner of Commercial Taxes in Mysore. At present, he is holding the post of a Commercial Tax Officer.
4. It is further stated that in consequence of the Reorganisation of States, the new State Of Mysore took up the question of integration of officers coming from the different states and prepared a, provisional Inter-State Seniority list of officers of the Commercial Taxes Department in the new State of Mysore and published the same in the official gazette dated 6-6-1957. In that list, the posts of Sales Tax Officers of Grade III of the former State of Bombay were deemed to be equated to those of the Assistant Sales Tax Officers of the former State of Mysore. To this, the petitioner and other Government servants aggrieved by that equation submitted their representations to the Secretary to the Government, Revenue Department (of Respondent 1) and simultaneously sent copies thereof the Special Secretary to the State Reorganisation Department and Commissioner for Commercial Taxes.
5. Respondent 1 appointed a Committee to enquire into the representations made by the petitioner and others, and on the recommendations of that Committee, revised the said provisional Inter-State Seniority list and placed the petitioner along with other Grade III and Grade II Sales Tax Officers of the Bombay State and the Sales Tax Officers of the Mysore State in the cadre of Commercial Tax Officers, with the result that, in the revised list, he was placed at Sl. No. 11 and respondent 2 was placed at Sl. No. 12. This revised seniority list was embodied in the Civil List published by Respondent 1 in the year 1959, as corrected upto 1st April 1958.
6. Respondent 1, however, altered this revised seniority list and published the same in the official gazette of 5th May 1960. The petitioner challenged this altered list before this Court in W.P. 540/60, and this Court quashed the said altered list, with the result that the revised list as published in the official gazette of the year 1959 stood unaltered.
7. Respondent 1 thereafter promoted Respondent 2, who is a Commercial Tax Officer and whose rank is just below that of the petitioner in the seniority list published in the Civil List of 1959, to the cadre of Inspecting Officers of Commercial Taxes, by issuing a Notification No. FP 105 CSE 60, dated the 19th November 1962.
8. The petitioner further states that the cadre of Inspecting Officers of Commercial Taxes is the next higher cadre to which he is entitled to be promoted in preference to his juniors.
9. In the revised seniority list published inthe year 1959, petitioner's tank is 11 while that of the 2nd respondent, is 12; i.e., the petitioner is senior to him by one place. He states that when promotion was due to him on 19th November 1962, his claims were superseded and respondent 2 was promoted without assigning any reasons nor was he heard before the order of promotion came to be passed. He also states that on account of his seniority and merit, he is entitled to the promotion which was due to him on eigth November 1962 and that he should not have been denied the promotion in the absence of any special and valid reason for superseding him. He has therefore, presented this writ petition praying for the relief's set forth above.
10. The petitioner has made these allegations on an affidavit and there is no counter affidavit filed either by the first or the second respondent.
11. Annexure 'A' is the notification dated 19th November 1962 issued by the Government of Mysore by which respondent 2 viz., Sri K. Marappa Reddy, Commercial Tax Officer, Bellary Circle, has been promoted as Inspecting Officer of Commercial Taxes. This notification states that this promotion is on a purely temporary basis pending finalisation of the Inter-State Seniority List. Annexure 'B' is the Inter-State Seniority List of officers of the Commercial Taxes Department, published in the civil list as it stood on 1st April 1958. From the latter we find that the place assigned to the petitioner is '11' while that assigned to respondent 2, is '12'. Thus there is no dispute/that the petitioner is senior to Respondent 2.
12. But the question is whether the petitioner can claim promotion merely on the basis that he is senior to respondent 2. It has been pointed out in a series of decisions that promotion cannot be claimed as of right but that it is based on a multitude of considerations which the Government or the promoting authorities are entitled to take into consideration before deciding whether or not to promote an official to a particular post.
This Court in M. A. Moqeem v. State of Mysore, AIR 1963 Mys 219, has considered what are the requisite essentials for promoting an official, and observed thus:
'Among the wellknown attributes of public service, one that is least subject to exception is that no employee can claim as of right a promotion from one position to another unless he could do so under a statutory provision or an enforceable condition of service. A variety of considerations govern the promotion of an employee, none of which alone could render an employee suitable for promotion. Ordinarily, it would be for the State or the promoting authority to determine such suitability after an assessment of all relevant considerations, such as seniority, competence, rectitude, and antecedent official records, none of which is less important than the other, for the preservation of purity and efficiency in public service. The basic or governing consideration in all promotions is what may be shortly described as merit or suitability. Seniority is in substance one of the elements in the assessment of merit. It may be that, having regard to the fact that seniority normally engenders some expectations of preferment or promotion in the minds of Government Servants,the State, which is interested in having contented service for good and efficient administration, hardly if ever totally disregards all considerations of seniority. That does not mean, however, that political expediency which may govern the actions of the State necessarily confers a right on the Civil Servant. Equality of opportunity under Article 16 of the Constitution can never be taken to exclude the idea of selection. It only requires that while making the selection, the State should apply same standards to all persons similarly situated with respect to the question on hand....... Seniority byitself can never confer an absolute right to promotion irrespective of other considerations.' In support of these Observations, reliance was placed upon another decision of this Court reported In Rudraradhya v. State of Mysore, AIR 1961 Mys 247 as also the decision of their Lordships of the Supreme Court reported in General Manager, Southern Rly. v. Ranga Chari, : (1970)IILLJ289SC . We are with great respect, in full agreement with the above observations.
13. Therefore what emerges is, firstly that the promotion of an employee' depends on a multitude of considerations, and secondly, in the normal Cause of things, when he, on account of his seniority, expects a promotion as being due to him, he would be promoted unless he is otherwise found unfit. Hence all that he is entitled, to, when a promotion is due, is that he has a right to ask for the consideration of his claim for a promotion along with other persons who are Similarly situate and if the promoting authority overlooks his claim for promotion or does not apply its mind as to whether he is fit or not for promotion, but supersedes his claim by promoting his junior, then such an employee, in our opinion, is entitled to com-plain to this Court that the promoting authority has violated the principle of equality of opportunity embodied in Article 16 of the Constitution, and to request that such order superseding his claim for promotion should be quashed and that the promoting authority directed to consider his claim for promotion. This principle is now well-established, and I do not think it necessary to cite any authority in support of this proposition.
14. It could be seen from Annexure 'B' produced in the case i.e., the Inter-State SeniorityList, published in the Civil List, as it stood on1st of April 1958, that there are 20 Officers amongwhom the petitioner's rank is No. 11 and that ofrespondent 2, is 12. Respondent 1, acting on thislist, has promoted Sl. Nos. 4, 5, and 6 by itsnotification dated 26th December 1957 (vide RD183 SXE 57). Thereafter, by another notification-No. RD 105 CSE 60, dated 29th September 1961,published in the Mysore Gazette dated 5th October 1961, Shri G. S. Siddamallappa and Shri K. S.Srinivasan, who are Sl. Nos. 8 and 9 respectively,have been promoted to officiate as Inspecting Officers.
According to the petitioners, as already stated, the cadre of Inspecting Officers of Commercial Taxes is the next higher cadre to which he was entitled to be promoted on 19th November 1962, and Respondent 1 by promoting, respondent 2, who was one rank below him, has superseded his claim for promotion. It is there that the petitioner complains that his claim for promotion due to himhas not been considered by respondent 1 while promoting his junior respondent 2, and consequently the order dated 19th November 1962 is in violation of the principles of Article 16 of the Constitution.
15. All that the petitioner contends is that his claim for promotion should have been considered when a promotion was due to him and that with-out such consideration he ought not to Lave been superseded by promoting his junior respondent 2, It is stated that if his claim for promotion had been considered and that respondent 1 found him unfit for promotion, then perhaps he could have no complaint to make. He has stated in his affidavit that he has got the necessary qualifications for promotion which, shortly put, could be stated as 'seniority cum merit', and that respondent 1 has not considered his claim. This statement has not been denied by respondent 1.
16. The question, therefore, in such circumstances, is whether, when the petitioner's claim for promotion was not considered on 19th November 1962 when it was due to him and the second respondent was promoted, there has been an infraction of the principle of equality of opportunity embodied in Article 16 of the Constitution.
17. On 19th November 1962, the Inter-State Seniority List of Officers in the Department of Commercial Taxes had not been finalised, and all promotions made before the finalisation of the list were made on the basis of the provisional Inter-State Seniority list prepared by the Stale Government, and such promotions were subject to the revision consequent on the finalisation of the Inter-State Seniority list by the Central Government under Section 115(5) of the States Reorganisation Act. The first respondent, as stated before, had prompted the Officers against Sl. Nos. 4, 5, 6, 8 and 9 on the basis of the provisional Inter-State Seniority list published by the State Government in 1957, and all those promotions were temporary and subject to revision after the finalisation of the Inter-State Seniority list by the Central Government. When the occasion for consideration of the case of the petitioner for promotion arose on the 19th of November 1962, the first respondent, however, ignored the seniority list of 1957 and promoted the second respondent who is just below the petitioner in the Seniority list which was in force at the relevant time.
18. A promotion, even temporary, gives an advantage and benefit to the concerned Government servant. As a result of any revision either I in equation or seniority of the officers in the final, | inter-State Seniority list, all temporary promotions made on the basis of the provisional Inter-State . Seniority list will have to be reconsidered and the petitioner along with the persons similarly situated could be assigned the rank due to him. On 19th November 1962, when the first respondent promoted the second respondent, the petitioner was senior to the second respondent according to the provisional Inter-State Seniority list of 1957 which was given effect to, for the purpose 'of promotions in the Department. If, on consideration of the petitioner's case on the basis of seniority-cum -merit, there was nothing against the petitioner on merit, he should have been promoted instead ofthe second respondent, though such promotion was temporary and subject to revision consequent on the finalisation of the Inter-State Seniority list by the Central Government. '
19. Therefore, in such circumstances, the supersession of the petitioner by promoting the second respondent, who was below him, and with-out consideration of his claim for promotion when due to him, is, in our opinion, clearly in violation of the principle of equality of opportunity embodied in Article 16 of the Constitution, and consequently, the order dated the 19th November 1962, promoting respondent 2, who was junior to him. cannot be sustained.
20. On behalf of respondent 1, the learned High Court Government Pleader, however, contended that the petitioner has no right or claim for promotion simply because he is shown as senior in the Inter-State Seniority list which was published in the official gazette of the year 1959 inasmuch as it was only a provisional list. We do not see how the learned Government Pleader can legitimately contend that the petitioner cannot rely upon this list to urge that he is senior to respondent 2 when, relying upon the very list, respondent 1 has promoted serial Nos. 4, 5, 6, 8 and 9. No counter-affidavit has been filed, as already stated, either by respondent 1 or respondent 2.
21. Mr. E. S. Venkataramiah, appearing for respondent 2, has made a serious grievance against respondent 1 for not placing the necessary material before the Court and not filing the necessary affidavit. During the hearing of this case, the learned Government Pleader produced before us a bundle of papers and stated that the Inter-State Seniority list of the Commercial Taxes Department has since been finalised by the Central Government and that respondent T has received the same in the month of May. If so, we are unable to see why respondent 1, did not file any counter-affidavit placing the necessary materials before the Court. Further we may state that the first respondent is not entitled to rely, to justify its order dated 19-11-1962, on the final Inter-State Seniority list which will have to be prepared on the decision of the Central Government long after the 19th November 1962, without considering the claim of the petitioner for promotion as on 19-11-1962.
We, therefore, told the learned Government Pleader that justice in this case demands that the claim of the petitioner for promotion should be considered subject to the finalised Inter-State Seniority list by the Central Government. We thought that this would meet the ends of justice. But the learned Government Pleader expressed his inability to do anything in the matter. Mr. E. S. Venkataramiah for respondent 2 has vehemently urged that the failure on the part of respondent 1 to place the necessary material before the Court should not prejudice the case of his client. There is, no doubt, some force in his argument. He further states that there are posts vacant to be filled up by promotion and that respondent 1 might avoid injustice to all by promoting the petitioner and thus helping his client to retain the post and avoid his reversal. That is what we suggested to the learned Government Pleader but his attitude was unhelpful. In such circumstances.
we do not see how we could help him on the materials placed before us.
22. In our opinion, the notification dated the 19th November 1962, whereby respondent 2 is promoted, is clearly in violation of the principle embodied in Article 16 of the Constitution and, therefore, the promotion of respondent 2 has got to be quashed, and we order accordingly.
23. This then takes us to the form of order , that we should make in this case. As already pointed out, respondent 1 has not filed any counter-affidavit challenging the averments made by the petitioner in his affidavit. The petitioner therefore contends that since there is nothing which is found against him by respondent I warranting the supersession of his claim and that he has got all the necessary qualifications for promotion, we should issue a writ of mandamus directing respondent 1 to promote him. But, in our opinion, ordinarily it is respondent 1 who is the authority to promote the petitioner and all that this Court would do, unless circumstances otherwise compel, is to ask respondent 1 to consider the claim of the petitioner since it has not been considered when promotion was due to him. But the petitioner, relying on the decision of this Court in Writ Petition No. 654 of 1962, E. Rajasekhar v. State of Mysore, decided on 16-1-1963 (Mys), requests that in the circumstances which are similar to those in the case cited, we should direct respondent 1 to promote him.
In our view, the decision reached in that Writ Petition on facts was to avoid what the Court seems to have considered the special hardship caused to the petitioner. Though it is stated by the petitioner in his affidavit that he has all the necessary qualifications for promotion and that Respondent 1 has failed to consider his claim and there is no statement to the contrary, yet, in our opinion, the proper order to make is to direct respondent 1 to consider the claim of the petitioner for promotion due to him as Inspector Officer of Commercial Taxes as on 19th November 1962, and we order accordingly.
24. For the reasons stated above, this writ petition is allowed. Respondent 1 will pay the costs of the petitioner, Advocate's fee Rs. 100/-.
25. Petition allowed.