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Malleshappa Hanamappa Bellary Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 288 of 1959
Judge
Reported inAIR1962Kant146; AIR1962Mys146; ILR1961KAR1027
ActsGovernment Servants-Service Rules; Bombay Civil Service Rules - Rule 3; Constitution of India - Article 226
AppellantMalleshappa Hanamappa Bellary
RespondentThe State of Mysore
Appellant AdvocateS.K. Venkataranga Iyengar, Adv.
Respondent AdvocateC. Chennappa, Asst. Adv. General
Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 48a & karnataka land reforms rules, 1974, rule 19: [h.v.g. ramesh, j] grant of occupancy right - form of application rejection of second form no.7 in respect of different properties - challenge to held, rule 19 envisages that applicant shall furnish particulars of all the lands held under each separate tenancy in one or more than one taluk in which the applicant claims to be registered as an occupant. the requirement that the application must be exhaustive of all the lands claimed by the applicant obviously is based on certain purpose and preventing piece meal applications so that there may be consolidated enquiry and hearing by the tribunal competent to decide a particular application and such rule is based on order 2, rule.....somnath iyer, j. (1) the petitioner was on november 1, 1942, a junior assistant in the political and services department, in the state of bombay. on september 17, 1943, he was sent on deputation, to the department of civil supplies. by an order made by the controller of civil supplies on september 23, 1943, he was appointed with effect from september 18, 1943 a senior assistant. in that department, to which he was deputed, the petitioner rose to the position of a rational officer. on march 1, 1954, when the department of civil supplies was abolished, he reverted to the department of public works. when he so reverted, he was drawing in the department of ?civil supplies a pay of rs. 460/- in the grade 350-30-650. (2) but, on his reversion to the department of public works, the petitioner.....
Judgment:

Somnath Iyer, J.

(1) The petitioner was on November 1, 1942, a Junior Assistant in the Political and Services Department, in the state of Bombay. On September 17, 1943, he was sent on deputation, to the Department of Civil Supplies. By an order made by the Controller of Civil Supplies on September 23, 1943, he was appointed with effect from September 18, 1943 a senior Assistant. In that Department, to which he was deputed, the petitioner rose to the position of a Rational Officer. On March 1, 1954, when the Department of Civil Supplies was abolished, he reverted to the Department of Public Works. When he so reverted, he was drawing in the Department of ?Civil Supplies a pay of Rs. 460/- in the grade 350-30-650.

(2) But, on his reversion to the Department of Public Works, the petitioner was appointed to the post of a Junior Assistant in a pay of Rs. 120/-.

(3) On the representations made by the petitioner against the fixation of his rank and pay in that way, to final decision was taken by the State of Bombay and when that matter was still pending, he was allotted under the provisions of the State of Mysore of which he became a civil servant on November, 1956.

(4) On November 27, 1958, the petitioner was informed by the Government of the New State of Mysore, through an official memorandum that it had been determined that he should be considered to have held the post of a senior assistant as on June1, 1954, on a salary of Rs. 225/- in the grade Rs. 210-15-300.

(5) The petitioner complains that this determination amounts to a violation of a condition of his service incorporated in a Circular of the Government of the State of Bombay, issued on October 31, 1950. He claims that on March1, 1954. When he reverted to the Department of Public Works, he was entitled to be posted as an Assistant Secretary which post according to him, he would have held on that day had he not been deputed to the Department of Civil Supplies, on September 27, 1945.

(6) When this case was heard by us on a former occasion , it was commended on behalf order the State Government by the learned Assistant Advocate General that the claim of the petitioner under the Circular of the Government of Bombay did not rose on a justifiable right. The following question was, therefore, referred by us for determination by a Full Bench of this Court.

'Whether the claim made by the petitioner under the Circular of the Government at Bombay (Circular No. 7573/33) dated October 31, 1950, that his case should be so regulated as to restore to whom the position he would have occupied in his parent department of Civil Supplies, tests on a justifiable right in respect of which relief is obtainable under the provisions of Article 226 of this Constitution?'

(7) The answer of the Full Bench to this question was:

'The claim by the peer's under the Circular of the Government of Bombay (Circular No. 7573/33) dated 32 stated October 1050. That his case should be so regulated as to restore to him the position he would have occupied in his parent department of Civil Supplies, rests on adjustable right in respect of which relief is obtainable under the provisions of Article 236 of the Constitution.'

(8) What remains to be done by us in this case which was sent back to this Bench for final decision, is to determine by the application of the Circular, the position which the petitioner would have occupied in his parent department had he not been deputed to the Department of Civil Supplies.

(9) The petitioner's case is that on September 1`7, 1943, he was a Senior Assistant in the Political and services Department. But this position is controverted on behalf of the State Government according to which he was only a Junior Assistant on that date in that department. It was argued by the learned Assistant Advocate General that the petitioner became a Senior Assistant only in the Department or Civil Supplies by which he was sent on deputation, and that the post held by him in his parent department before he was sent on deputation was only the post of a Junior Assistant.

(10) It seems to me that the question whether the petitioner was a Junior or Senior Assistant before his deputation to the Department of Civil supplies, has little bearing on the question as to the applicability of the Circular on which the petitioner depends. What position the petitioner would have occupied in the Political and Services Department on March 1, 1954, had be remained in the department and had not been sent to he department of Civil Supplies, is the real material question.

(11) It is not disputed that one K. P. Nadkarni was also a Junior Assistant in the Political and Services , Department on September 17, 1943, and on that date, he was Junior in rank to the petitioner and immediately next below him. Two other persons Nayak and Telang were, it has been pointed out , similarly junior to the petitioner. Nankarni Nayak and Telang continued to serve in the Political and Services Department after the peer left that department on deputation to the Department of Civil Supplies. It is stated that Nadkarni became a Superintendent in the Political and Services Department on March1, 1948, and it is admitted that he became an assistant secretary in that department on April 15, 1953. Nayak and Telang, we have been told, also became similarly Superintendents and Assistant Secretaries in the Political and services Department. On March 1, 1948, and it is admitted that he became as Assistant secretary in that department on April 15, 1953. Nayak and Telang we have been told, also became similarly Superintendents and Assistant Secretaries in the Political and Services Department

(12) The petitioner contends that if he had not been deputed to the Department of Civil Supplies he would have become a Superintendent in the political and Services Department before Nadkarni became one, and that he would have similarly become as Assistant secretary before Nadkarni became each Assistant secretary . It is, therefore, urged that the petitioner would have in the normal ours of events become a Superintendent on March 1, 1948, when Nadkarni became a Superintendent and that he would have become an Assistant Secretary before April 15, 1953, on which date Nadkarni became an Assistant Secretary .

(13) The argument advanced therefore in that by March 1, 1954, until which date the petitioner was serving as a Rationing Officer on the Temporary department of Civil supply, he would have, if he had remained in his parent department namely, in the Political and Services Department , become a Superintendent in the first instance and an Assistant Secretary . It is urged, is the post to which the Circular entitled the petitioner on his revision from the Sep of Civil Supplies.

(14) It is admitted that when the petitioner reverted from the department of Civil Supplies, he was holding in final department the post of a Rationing Officer, on a pay of Rs. 450/- In the pay scale of Rs. 350-30-650. As the original Service Register produced before us shows, although the peer commenced has career in the Department of Civil Supplies, only as a Senior Assistant , on pay of Rs. 180/- he rose in this department from position to position until he became a rationing officer on a salary of Rs. 460/- before he reverted from that department . Not-withstanding that being the position, quite surprisingly, on his reversion from that department . The peer who was posted to the Department of Public Works was appointed as a Junior Assistant on a pay of Rs. 120/- and not unnaturally, the peer protested against it. But he was informed by the Government of Bombay on August 23, 1954, as follows:

'With reference to your oral representation to the chief Secretary on the 30th July 1954, in connection with your appointment in the Public Works Department . I amend directed to state that the statement made by you before the Chief Secretary that it was proposed to appoint you in the lower division is not correct. It has been decided to appoint you in the Upper Division just below the member of the Lower Division confirmed in the Upper Division, who had joined prior to you in the Lower Division. I amend to state that it is the fairest treatment that can be gives on the circumstances and that there is no Justification for your reference.'

(15) But, before the Government of Bombay issued a revised pay petitioner, there was the organisation of the States, as a consequence of which, the peer was allotted for service under the new state of Mysore. It was only on November 27, 1958, that the Government of the new state of Mysore took a final decision on the question of the fixation of the rank and pay of the peer. The official memorandum recording that determination reads:

GOVERNMENT OF MYSOREMysore GovernmentSecretariat, Vidhana Soudha, Bangalore, D/- 27 Nov, 1958, Kartika SE 1880.NO cad 144 REP 58.OFFICIAL MEMORANDUM In continuation of the O. M. of even number dated the 10th October, 1958, it is to state that the Government of Bombay who were requested to these a revised Last Pay Certificate in view of the refixation of the pay of Shri M. H. Bellary, As , have now intimated that the Bombay Government is not composed to issue any other rods in respect of the official regarding his parts service and also agree to issue the revised Last Pay Certificate as he has been allotted to the Mysore state and they also agree to accept the debit of its share of the arrears, if any, payable to the official prior to the 1 stated November 1958. As such necessary orders in the matter are to be issued by this Government for finalising the question of fixation of pay of the official as per Government of India letter No. 36/9/56 SR-1 dated the 12th September, 1958.

The pay of Shri M. H. Bellary, Assistant is therefore, regulated as follows in accordance with the orders issued by the government of Bombay whereby he is treated as Senior Assistant in the scale of Rs. 210-15-300, with effect from 1 art June 1954.

Date on which fixed. Amount of pay fixed 1. On 1 - 6 - 1954 Rs. 225 As fixed by the Govt.2. On 26 - 2 - 1955 Rs. 240 of Bombay under 3. On 26 - 2 - 1956 Rs. 255 their letter No. M. H. B.. 4. On 4 - 6 - 1957 Rs. 270 1057, 20 - 4 - 1958. 'The increment due on 20th February 1957, has been postponed by 99 days as official has availed leave without allowance during the incremental period. (Sd/-) Khala Gulam Gobor Ali Khan. Under Secretary to Government, General Administration,Department (Administration 2)'

(16) It is clear from this official memorandum that the Government of Bombay recognised the authority of the Government of the new State of Mysore top finally determine the pay and rank of the peer and its own incompetence to make any order even in respect of the peer's service in the State of Bombay, before his allotment to the new state of Mysore. The order made by the Government of the new state of Mysore, also makes it plain that the anterior order made by the Government of Bombay on August 23, 1954, stood superseded and was retrospectively substituted with effect from June 1, 1954, by the order made by the Government of the new state of Mysore.

(17) The question is whether the determination of the rank and pay of the peer by the impugned official memorandum of the Government of the new state of Mysore transgresses the provision of the Circular made by the Government of Bombay on October 31, 1950, which as pronounced by a Full Bench of this Court, treaties a participle right.

(18) The part of the government Circular, while referring to Government servants deputed to other Department, states:

'Government is pleased to direct that appeal such cases should be regulated under Bombay Civil Service Rule 51 and that only that portion of the service in the foreign Department or Office should be allowed to count for increments in the parent department during which the person concerned would have drawn pay in the time scale applicable to the post be holds on revision, but for his disputation to another department or office .............................'

(19) The interpretation suggested by the learned Assistant Advocate General on this part of the Circular is that the Circular does no more than to guarantee to the concerned Government servant the increments relating to the post held by him at the point of time when he was disputed to another department and that the Circular does not ensure to the Governing Servant the promotions which he would have secured from that rest to the higher posts in his parent department .

(20) I amend not prepared to accept this as a correct construction of the Circular. The meaning of the first part of the Circular which I have see out above is clearly explained by another part of it and that part reads,

'............. the case should be so regulated us to restore the position the person concerned would have occupied in his parent department had he not been deputed.'

(21) Although in the first part of the Circular the reference is to the increments in the parent Department , it seems to me that the intendment of the Circular, was that the deputed Government servant should not only become entitled at the time of deputation but also to the restoration to him of appeal the higher positions which would have been normally within his reach if he had not been sent away on deputation from his parent department . That in Mysore opinion, is how we have to understand the Circular.'

(22) So, if a Government servant was holding a particular post in his parent department , and was sent to another department to his parent department he becomes entitled in Mysore opinion, according to the Circular, not only to appeal the increments which he would have secured in his parent department but also to the restoration to him of every one of the higher posts which he would have in the normal course of events occupied in his parent department had be remained in it, without having been deputing to another.

(23) Any other interpretation such as the one suggested by the learned Assistant advocate General, would be production of unjust and incongruous results. If a civil servant on the occasion of his deputation to another department is drawing a salary of Rs. 180/- in his parent department and if the maximum salary he would have drawn in that post after obtaining appeal the increments application to that post would for have exceeded Rs. 240/- and if the serves in the department , to which he is deputed during a period of twenty years and reaches in that department a position with a salary of a thousand rupees, and if it is further clear that if he had remained in the parent department he would have also attained the same or similar position with the same or similar salary, it would he too unreasonable for anyone to suggest that what the Circular of the government of Bombay does is to ensure to that Government servant nothing more than the payment to him on his reversion of the maximum salary of Rs. 240/- which he would have draws in the post from which he was sent on deputation. A construction lending to such hardship and absurdity, in Mysore opinion, should be discarded, particularly, when it does not accord with the elucidation of the principle, contained in the latter part of the very Circular.

(24) I amend, therefore, of the view that the peer should have been period on his reversion from the department of the Civil Supplies to the post which he would have held in the political and services department if he had not been disturbed from that department and sent to another.

(25) The claim made on behalf of the peer is that that post on March 1, 1954. When he was reverted, would have been at state the post of its Assistant Secretary .

(26) The question whether the petitioner would have occupied the post of an Assistant Secretary in the Political and Services Department in that way is, depending on Probabilities. But, that the petitioner would have occupied in his patent department when he rested to it, at least that post which was held at the time of his reversion by one who was junior to him in the parent department when he left it is, in my opinion, irrefutable in the absence of materials indicating the contrary Ordinarily, and in the absence if misconduct, inefficiency or incompetence, or the like it is reasonable to presume that a civil servant would have risen in his are not department to the same position reached by one who was junior to him.

(27) So tested, it is obvious that other things being equal, the petitioner would have become a Superintendent in his parent department which was the political and services department on March, 1, 1948, and an Assistant Secretary on April 15, 1953. If Nadkarni who was his junior could believe a Superintendent on march 1, 1`948, and as Assistant Secretary on April 15, 1953, as he did, there is no reason which set should hesitate to think that the petitioner who was senior to Nadkarni would have also become a Superintendent and an assistant Secretary on those dates. It is not suggested that there is which adverse official record or any other reason justifying the view that the petitioner who rose to the position of a Rationing Officers in the department of Civil Supplies which he would not have been able to attain if he had not been satisfactorily discharging his official duties, would not have been similarly able to attain official advancement in his own parent department.

(28) The learned Assistant Advocate Counsel however, submitted that the petitioner could not found his claim to the position of an Assistant Secretary on the achievements of Nadkarni in the petition and Services Department. He pointed out to us that when the petitioner was sent on deputation to the Department of Civil Supplies, he was only an officiating junior Assistant and that although Nadkarni was also at that time an officiating Junior Assistant, he was confirmed as a Junior Assistant in his parent department before Nadkarni was so confirmed. Nadkarni must be regarded to have somehow gained ascendancy over the petitioner in that department , making if impossible for the petitioner to claim the post which Nadkarni reached as a Superintendent in 1948, and as an Assistant Secretary in 1953.

(29) The fallacy in this process of reasoning is that or overlooks the fact that if the petitioner had confirmed in his parent department, he would have been undoubtedly confirmed in his post as junior Assistant before Nadkatrni was so continued. Likewise if the petitioner and reversed to his parent department on August 2, 1964. It would not have been possible for the state Government to place him below Nadkarni, merely on the ground that Nadkarni had been confirmed the previous day. The fact that petitioner reverted to his parent department after the confirmation of Nadkarni would have been no ground whatsoever for assigning to Nadkarni a rank Higher than that of the petitioner.

(30) It was not urged that the petitioner would not have, as a matter of course, been able to secure promotion to the post of a Superintendent since such promotion was not possible unless the petitioner passed a departmental examination.

(31) This submission rested on certain rules made by the Government of the State of Bombay, for the holding of a departmental examination for the members of the Upper Division of the Subordinate Secretarial Service. A Junior Assistant in the State of Bombay was member of Upper Division of the Subordinate Secretarial Service. Rule 1 of those rules required a candidate recruited to the Upper Division of the subordinate Secretarial Service to pass within five years of his joining service a department examination according to the prescribed syllabus examination ineligible for promotion title the post of a Junior Superintendent or for further promotions.

(32) But what makes those rules inapplicable for the petitioner is the first proviso to rule 1 which reads '(1) Persons who have completed at least 5 years service in the Upper Division of the subordinate Secretarial service of which 2 years are as Senior assistant on the 1 stated January 1951 will not be required to pass the examination',

The petitioner was on January 1, 1951, in service in the Upper Division of the Subordinate Secretarial Service for more than five years he was a senior Assistant. He was, therefore, clearly exempt from securing a pass in the departmental examination to become eligible for promotion to his post of a Superintendent.

(33) It is therefore, not established that there was any departmental in the way of the petitioner becoming a Superintendent, like Nadkarni, on March 1, 1948.

(34) The said contention urged was that the Department of Civil Supplies in which the petitioner was working as a Senior Assistant for two years was not part of the subordinate Secretarial Service and that therefore, the proviso referred to above was inapplicable to the petitioner.

(35) The answer to this argument is that contained is a resolution of the government of Bombay of August 22, 1951. Paragraph 2 of that resolution reads:

'Resolution of Government.

* * * * * * * * * * * * 2. All Departments of the Secretarial except the Civil Supplies Department should bring these rules to the notice of their respective assistants'

(36) It was argued and in my opinion very cogently, that unless the Civil Supplies Department was also a department of the Secretarial this part of the resolution becomes amending.

(37) It is therefore clear that in his parent department, the petitioner would have become a Superintendent on March1, 1948.

(38) The question is whether he would have been able to secure a higher position after that date.

(39) It is not disputed that in the State of Bombay, the appointment to the post of an Assistant Secretary was always made by promoting the Senior-most superintendent to that post. The position, therefore, was that the senior most superintendent, unless found unworthy was entitled to be promoted as an Assistant Secretary. It must have been by that process that Nadkarni became an Assistant Secretary on April 14. 1953, There is nothing to show that if the petitioner had been in his parent department he would not have become an Assistant Secretary before Nadkarni became one.

(40) It is my opinion, therefore, incontestable that in the normal course of events, the petitioner who had an unblemished official career in the Department of Civil Supplies would have if he had remained in his parent department, become an Assistant Secretary on April 15, 1953, when Nadkarni became one.

(41) It is to this post of an Assistant Secretary that the Circular of the Government of Bombay of October 31, 1950 required from the Department of Civil Supplies on March 1, 1954, in the rank and on the salary which he would have reached or drawn in that post on that date.

(42) But, an attempt was made to sustain the impugned Government Order on what I regard as a novel ground. It was pointed out to us that after the petitioner was sent on deputation department, namely, the political and Services Department was bifurcated on March 1, 1948, into two departments. One of those departments was the Political Department and the there was the Department of Labour and Housing. We have been informed that even that Department of Labour and Housing was subsequently abolished and substituted by the Department of Public Works. When the petitioner was serving in the Department of Civil Supplies, we have been told that the petitioner was nationally allotted from the Political and Services Department in the first instance, and then to the Department of Public work after the abolition of the Labour and Housing Department.

(43) ON these facts, it was urged that the only post for which the petitioner could aspire on his reversion, under the Circular of the Government of Bombay was the post which he would have occupied in the Department of Public Works after his allotment to that Department, and not in the Political and Services Department from which he was deputed. It is urged that since the impugned order of the Government restores the petitioner to the position which he would have occupied, if he had continued in the Department of Public Works, after his allotment to that Department , it is not open to the criticism that it transgress the provisions of that Circular.

(44) The difficulty in accepting this argument is that , the parent department of the petitioner, within the meaning of the Circular of the Government of Bombay, is the Political and Services Department, and not the Labour and Housing Department which was carved out of the that parent department or the Department of Public Works, which replaced the Labour and Housing Department . It is with reference to the Political and Services Department that the portable advancement in the official career of the petitioner should be measured and determined, and not with reference to the Labour and Housing Department or the Department of Public Works. It was not permissible for the Government of the State of Bombay to defeat the provisions of the Circular by nationally allotting the peter five years after he was sent in deputation, to another department in which his position was made interior to that of Nadkarni in the political and services Department.

(45) Even the allotment so made was partly notional and for the purposes of the circular the petitioner should in my opinion, be deemed to be serving throughout the period of his deputation in the political and services Department, irrespective of such allotment to another.

(46) It is in that way that the position which the petitioner would have reached in his parent department has to be worked out, and not by the method suggested by the learned Assistant Advocate General.

(47) In that view of the matter what s material for the purpose if the circular us the potentiality of the post held by the petitioner in the Political and services Department when he was sent n deputation and as pointed out by me, I have not the slightest doubt that post would have led the petitioner to the post of all Assistant Secretary on April 15, 1958, and it is that post to which he should have been restored when he reverted from the Department of civil Supplies.

(48) The arguments next advanced was that the right to intercept the Bombay Civil Services Rules, on one Government and that rule having been interpreted in the manner specified in the impugned order, it was not open to the petitioner to ask us to intercept it differently.

(49) Rule 3 of the Bombay Civil Services Rules on which this argument years reads:

'S. Government reserve to themselves the right of intercepting these rules.

Instruction, Communication, regarding the interpretation of these rules should be addressed to the Finance Department'.

(50) It seem, to me that this rule has hardly say relevance. The circular of the Government of Bombay on which the petitioner depends is an interpretation of the rules relevant to its subject matter and that interpret the post of an Assistant Secretary, when he reverted from the Department of Civil Supplies on march 1, 1954. What the petitioner complains against in this case s not the interpretation placed by any one on any of the Bombay Civil Service Rules, but against a misapplication of those rules and their interpretation which has already been made by the government of Bombay. In a situation like that any arguments on the provisions of Rule 3 would be plainly unavailable.

(51) Further, it is clear that it is not open to the Government to place an incorrect interpretation on a rule incorporating a service condition and claim immunity from the challenge made to that interpretation in an application presented to this Court under Article 226 of the constitution. If on a proper construction of the relevant rule, this Court sees reasons to think that the interpretation placed by the Government has the affect of defeating a right created by has the effect of defeating that rule, it is clear that rule 3 can hardly be pleaded as a bar to the exercise of jurisdiction by this court, under the revisions of Art, 286.

(52) Even so, it was contended that if we came to the conclusion that the impugned order rests on a misconstruction of the Circular, all that we could do is to direct the Government to make a fresh determination of the post to which the petitioner should have been restored on his reversion from the Department of Civil Supplies, instead of ourselves making such determination.

(53) The acceptance of this argument would only lead to interminable litigation. If what this Court can do is only to direct obedience the Circular, and the Circular is, on each occasion after such direction is given, again and again disobeyed or disregarded, the petitioner could only have the satisfaction order getting quashed on each occasion the determination made by the State Government without the being able to secure any tangible benefit or redress. A contention resulting in such consequence should, in my opinion, be repelled.

(54) What was next pressed on us is that a mandamus by us directing the petitioner to be restored to the post or to the benefits of the port of an Assistant Secretary with effect from March 1, 1954, would result in transferring to the new State of Mysore, a burden which untill the reorganisation of the States was entirely that of the State of Bombay.

(55) The difficulty, it seems to me, is illusory and not real, as is indicated by the impugned order itself. That order makes it clear that the Government of Bombay left the determination of the salary of the petitioner to the Government of the new state of Mysore, and unreservedly agreed 'to accept the debit of its share of the arrears, i any, payable to the official prior to the 1st November 1956'. If that is what was assented to by the Government of the State of Bombay, the complaint that the new State of Mysore will be exposed to be a liability which is properly that of the State of Bombay has it be dismissed as entirely groundless.

(56) In the view that I take the order made by the new State of Mysore on November 27, 1953, treating the petitioner as a Senior Assistant in the scale of Rs. 210-15-300, with effect from June 1, 1954, is liable to be quashed, as offending against the Circular of the Government of Bombay, issued on October 31, 1950.

(57) The petitioner, when he was reverted from the Department of Civil Supplies was a rationing officer drawing a salary of Rs. 460/- in the pay scale of Rs. 350-30-650. How, the petitioner who was drawing the salary of Rs. 460/-, on march 1, 1954, in the pay scale of Rs. 350-30-650 could be asked to start on a salary of Rs. 225/- with effect from June 1, 1954, in the pay scale of Rs. 210-15-300 is what I find difficulty to understand, particularly, when it is ardently clear that if he had not been sent from his parent department of Civil Supplies, he would have become, as Nadakarni became, an Assistant Secretary, even as early as on April 15, 1953, in the pay scale of Rs. 650-50-950.

(58) The impugned order of the Government of the new State of Mysore, determining the pay of the petitioner to be Rs. 225/- on June 1, 1954 is as unreasonable or as a unjust as the order by which he was posted as a Junior Assistant on a pay of Rs. 120/- When how was reverted from the Department of Civil of Supplies, at a time when he was drawing a salary of Rs. 460/-.

(59) Those orders clearly amount to an infraction of the right created by the Circular of the Government of Bombay, whose plain object is to protect and preserve the rights of a civil servant sent in deputation to another department, against inroads such as those made by the impugned order in this case.

(60) What remains is to settle the form of the order which weight should make in this case. The petitioner who was still in service when the application was made to this Court has, we have been told, since retried. He was, therefore, never able to secure, while in the service the benefits of the provisions of the Circular on which his claims entirely depends. If the Circular had his claims been properly implemented, he would have been posted as an Assistant Secretary in the service of the Government others Bombay on March 1, 1954. That not a having been done, he continued as a Junior Assistant in the State of Bombay, and thereafter, by virtue order the impugned order, he became a Senior Assistant with effect from June 1, 1954, on a considerably smaller scale of pay than that to which he had a right.

(61) In those circumstances, the proper order that we should in my opinion, make in the writ petition is to quash the impugned order as to direct the new State of Mysore, which is the respondent in this case, to regulate the petitioner's case in the following manner :-

(a) The petitioner should , in the first instance be appointed with effect form March 1, 1954, as an Assistant Secretary in the rank which K. P. Nadkarni held on that date, in the State of Bombay, and on the pay and emolument which he (K. P. Nadkarni) was then drawing;

(b) The petitioner should be regarded as having held on March 1, 1954, the post of an Assistant Secretary above that of K. P. Nadkarni , in the State of Bombay, on the same salary which K. P. Nadkarni was drawing on that by, as such Assistant Secretary;

(c) The petitioner should further be regarded as having earned all the increment in the time scale of that post of Assistant Secretary, as and when those increments became due;

(d) The aggregate of all such amounts which the petitioner became so entitled either in the shape of salary or in the shape of increments between March 1, 1954, and the date of which he retried from the service of the next State of Mysore, should now be paid by the Government of that State to the petitioner after deducting therefrom the salaries so far received by him.

I make an order accordingly.

(62) The costs of this writ petition must be paid by the respondent to the petitioner, Advocate's fee Rs. 100/-.

Das Gupta, C.J.

(63) I Agree.

(64) Petition Allowed.


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