Govinda Bhat, J.
1. The petitioner, who is Lay Secretary Grade II, working in the Medical College, Bellary, has, in this Writ Petition preferred under Article 226 of the Constitution, challenged the order made by the Director of Medical Services in Mysore, Bangalore (Respondent 2), dated 18th January 1965. relieving him from the post of Grade I Lay Secretary, in which post he had been placed, consequent on the order of the Government in letter No. PLM 14 MSM 64, dated 25th July 1964, to wait for one year to get his further promotion.
2. The relevant facts material for the decision of the case briefly stated, are:
The petitioner was a Head Clerk in the Medical Department in the erstwhile State of Bombay on the day immediately prior to the Reorganisation of States, and on 1-11-1956, he was allotted to serve in the reorganised State of Mysore In the provisional inter-State Seniority list of the ministerial establishment of the Medical Department as on 1st November 1956, published by the State Government on 20th August 1964. the petitioner's ranking is at Sl. No. 5 while respondents 3 and 4 were ranked at Sl. Nos 15 and 17 respectively In the year 1958. the petitioner was promoted as Special Division Clerk with effect from 21st March 1958 on the scale of Rs 100-200 On the 11th January 1961, he was further promoted as Manager Grade I in the scale of Rs. 150-10-250 and posted to duty in the Government Hospital at Hubli, which hospital is attached to the Medical College Hubli On 4th March 1964. the petitioner obtained his third promotion from the grade of Manager Grade I to the grade of Lay Secretary. Hospitals. Grade II. with effect from 26th June 1963 on the scale of Rs 220-440. By order made by the 2nd respondent on 10th June 1964. the petitioner was placed in charge of Lay Secretary Grade I, Medical College Bellary, on his own pay scale i.e., the pay scale of Lay Secretary Grade II It is relevant to state that the scale of pay of Lay Secretary Grade I is Rs 250 500. which is a promotional post from Lay Secretary Grade II. The petitioner was working in the post of Lay Secretary Grade I on his own pay scale from 1st July 1964 until 18th January 1965 when the Director of Medical Services issued the impugned memo which reads:
The Direction of Medical
No. CLT 236-1 CR/64-65.
Sri P. V. Munavalli, Lay Secretary Grade 11, who is ordered to wait for one year in Government letter No. PLM 14 MSM 64 dated 25-7-1964 to get his further promotion is posted to Civil Hospital, Belgaum, in the vacancy released by the postings of Sri B. M. Tejramsingh.
He may be relieved and directed to join duty at Civil Hospital Belgaum, forthwith.
Sd/ A. Thimmayya,
for Director of Medical Services.'
3. B. H. Tejramsingh, referred to in the above memo, is respondent No. 4 in the above writ petition On the same day, respondent 2 issued another memorandum posting respondents 3 and 4 as Lay Secretaries, Grade I on their own pay scales, pending receipt of Government Orders regarding their regular promotions, and they were posted to the Medical College, Bellary, and Winlock Hospital Mangalore, South Kanara respectively.
4. Government Order dated 25th July 1964, on the basis of which the petitioner was relieved of the charge of his Grade I post, copy of which was produced before us by the learned Government Pleader reads:
'Govt. letter No. PLM 14 MSM 64. dated 25th July 1964 from the Secretary to the Govt of Mysore. P. H. Labour and Municipal Admn. Dept., Bangalore, to the Director of Medical Services, Bangalore.
Sub:--Conversion of Non Gazetted Lay Secretaries to that of Gazetted Cadre.
With reference to correspondence ending with your letter No. CLT 661/CR. 11847 dated 7-4-1964 on the above subject, I am directed to convey approval of Govt. to the inclusion of the names of Sriyuths B Umanath & G. H. Katti, Lay Secretaries Class III in the eligibility list for promotion to Class II Cadre of Gazetted Lay Secretaries. They may be posted early if there are vacancies As regards Sri Surath Singh orders for his promotion to the post of Class II Gazetted Lay Secretary have been issued in the Notification No. PLM 14 MSM 64 dated 25th July 1964.
Sri P. V . Munavalli should wait for one more year since his Confidential Report for the year 1961 is damaging and that for 1963 is unsatisfactory, as observed by the Public Service Commission.
The Confidential reports as noted in the margin Sriyuths:
1. Surat Singh for the year1961 to 63.
2. B. Umanath for the yearl961 to 63.
3. G. H. Katti for the yearsfrom 1-1-61 to 30-10-61. 17 11-1961 to 31-12-61, 62 and upto 6-4-63 and1963-94.
4. P. V. Munavallf for theyears 1961 to 63.
received with your letterNo. C.L.T 661 C.R. 11847 dated 10-3-1964 are returned herewith and itsreceipts may please be acknowledged immediately.'
P. V. Munavalli, referred to in the above letter, to the petitioner.
5. In this Writ Petition the petitioner has prayed for an appropriate writ or order quashing the memo dated 18th January 1965. relieving him of the charge of his 1st Grade post, and the above cited Government order withholding promotion for one year and for a mandamus directing respondent 1 to consider his case for promotion to the post of Lay Secretary Grade I.
6. The aforesaid order of the Government and the memo issued by the Director of Medical Services in Mysore, based on the said order,have been challenged by the petitioner on two grounds, as formulated by Sri Datar, his learned counsel.
7. The 1st ground was that the order made by the Government that the petitioner should wait for one year for promotion since his confidential report for the year 1961 is damaging and that for 1963 is unsatisfactory, amounts to imposition of a penalty of withholding promotion without affording a reasonable opportunity to show cause The 2nd ground was that while promoting his juniors, respondents 3 and 4. and superseding the petitioner, respondent 1 has taken into consideration irrelevant matters such as his confidential report for the year 1961.
8. The petitioner has alleged in his affidavit that the record of his service was throughout satisfactory and in fact, he has earned three promotions after he came to the reorganized State of Mysore and that the report for the year 1961 was made by one Dr. B. N. Lingaraju the Dean of the Hubli Medical College, who was inimically disposed towards him and that the said confidential report was actuated by bias Dr Lingaraju has filed a counter-affidavit refuting the averment made by the petitioner The Director of Medical Services who promoted the petitioner, by his order made on 4th March 1964. to the post of Lay Secretary Hospitals Grade II. with effect from 16th June 1963 did not consider from the confidential report for the year 1961 that the petitioner was unsuitable for promotion After promotion to the post of Lay Secretary, Hospitals Grade II he was placed in charge of Grade I and continued in that charge for a period of over six months When the question of further promotion to a higher post arose one of the relevant matters for consideration was the confidential reports after he was posted as Lay Secretary. Hospitals Grade II at Bellary with effect from 26th June 1963.
9. The learned Government Pleader placed before us (a) the copy of the confidential report for the year 1961-62 (1-4-61 to 31-3-1962) which is stated in the Government order to be damaging, (b) the copy of the report from the period 1-4-62 to 31-12-62 and (c) the copy of the report for the year 1963.
10. From a perusal of the confidential report made by Dr. Lingaraju for the year1961-62. it may be seen that certain irrelevant facts have been mentioned by him e.g. under Section II, requiring to state if the petitioner was not yet qualified for further promotion, it isstated that the petitioner has 'evaded payment of house rent' In our view, mentioning of such and similar facts is irrelevant. Therefore, when Dr. Lingaraju mentions such facts in the confidential report and if the petitioner, insuch circumstances, complains that Dr. Lingaraju had made certain adverse remarks against him because he had bias against him, it cannot be said that such a complaint is baseless,
11. In the copy of the confidential report for the period 1-4-62 to 31-12-1962; under every heading mentioned therein, the work of the petitioner is shown as satisfactory, and no damaging or adverse remarks appear. In the copy of the confidential report for the year 1963, under all the heads falling under Section I, the remark is that his work is 'satisfactory'; the 'General remarks' falling under col. 16 are that he is 'hard working and reliable, quiet and unassuming ' But under Section II. which relates to the degree of fitness for promotion, the general remark reads:
'His personality and work is not impressive, Otherwise, he is qualified for promotion.'
The remark that petitioner's work is not impressive it too vague; the said observation is opposed to the remark under col. 16 in Section 1 that he is 'hard working and reliable, quiet and unassuming.' A person who is unassuming, quiet and hard working, even if unimpressive, cannot besaid to be unsuitable to hold a post. Further the learned Government pleader has not shown from the relevant Recruitment Rules that personality is one of the relevant matters for consideration for promotion to the post of Lay Secretary Grade I. The impugned Government order states that the petitioner's confidential report for the year 1963 is unsatisfactory. The learned Government pleader did not point out any remark in the said report to the effect that the petitioner's work was unsatisfactory during 1963; on the contrary, the remarks are to the effect that his work was satisfactory Though we are not sitting in appeal over the action of the Government, which is the appropriate authority for consideration of the case of its officials for promotion the right of an official for consideration for promotion is one of the fundamental rights guaranteed by Article 16 of the Constitution. When a citizen complains to this Court that he has been arbitrarily dealt with and his fundamental right has been violated, it is the duty of this court to examine his case whether, the complaint is justified The sole reason for withholding promotion of the petitioner for one year was according to the impugned Govt. Order, that his confidential report for 1961 was damaging and that for 1968 it was unsatisfactory. In the counter affidavit filed by the Under Secretary to Government,the action of the Government it sought to be justified on the very same ground. This is what the counter-affidavit states:
'The petitioner's contention that his work was quite satisfactory and that there was no adverse remarks at any time by his superiors, is not correct The confidential reports for the years 1961 and 1963 were unsatisfactory The petitioner's case was referred to the Public Service Commission. The Public Service Commission after considering the confidential reports was of the opinion that the confidential report for the year 1961 was damaging and for the year 1963 It was unsatisfactory. In view of this opinion, 'the Government after considering the case of the petitioner for promotion to the post of Gazetted Lay Secretary (250-500) thought it fit to withhold the promotion of the petitioner' ......'
(Underlining (here in ' ') ours). On behalf of the Stale, it was not contended that the petitioner's confidential report for the years 1962 and 1964 was unsatisfactory or that there were any adverse remarks against him, or that there was any justifiable ground for withholding his promotion for one year. It was also not contended in the counter-affidavit filed on behalf of the State that the petitioner, in the opinion of the Government, was unsuitable to hold the post of Lay Secretary, Grade I, when the occasion for his promotion arose in 1966. In our opinion, for the reasons already stated, the petitioner's confidential report for the year 1961 was not relevant; not only that, but even the promoting authority Itself considered it irrelevant and insufficient to withhold petitioner's promotion when it was given to him on earlier occasions. Further the statement in the Government Order that his confidential report for 1963 was unsatisfactory is not supported by the document placed before us. The petitioner's promotion was in our judgment withheld on irrelevant and nonexistent grounds.
12. The learned Government Pleader contended that the action of the Government withholding promotion is not justiciable; his argument was that withholding of promotion merely amounts to a case of non-promotion. In support of the said contention, he relied on Clause (3) to the Explanation to Rule 8 of the Mysore Civil Services (Classification Control and Appeal) Rules. 1957, which states that non-promotion of a Government Servant after consideration of his case for promotion to which he is eligible shall not amount to a penalty within the meaning of the said Rule. He also sought support for his contention from the decision in High Court, Calcutta v. Amal Kumar Roy, : 1SCR437 . In the said case the respondent, who was in the Cadre Munsiffs on the West Bengal Judicial Service, challenged the order of the Calcutta High Court, promoting his juniors to the cadre of Subordinate Judges.
From the facts of the said case, it appears, that on or about the 16th December 1954, thecases of several Munsiffs came up for consideration before the High Court for inclusion of names in the Penal of Officers to officiate as Subordinate Judges, that the respondent's name was excluded from the said panel and it was decided that after the special report from the District Judge was received, his case would be considered a year later. The respondent challenged his supersession by Munsiffs juniors to him in the Civil List, on various grounds, and one of the around was, that the action of the High Court amounted to withholding promotion within the meaning of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules -- which rule corresponds to Rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957. The said contention was repelled by the Supreme Court on the ground that Rule 49 comes into play only while proceedings are taken by way of disciplinary action against a public servant, and in such disciplinary proceedings, the Government servant proceeded against has a right to insist upon the procedure being strictly followed, and since there was no such disciplinary proceedings against the respondent. Rule 49 was not applicable.
It is relevant to state that the respondent Amalkumar Roy did not challenge the reason given by the High Court for his supersession by Munsiffs junior to him and deferring consideration of his case after the special report from the District Judge was received a year later. The circumstances under which the High Court excluded the respondent's name from the names in the panel of Munsiffs suitable for promotion appear from the facts of the case. The Supreme Court was satisfied that the respondent's case was considered along with that of other Munsiffs and the High Court after consideration of the relative fitness of the Munsiffs chose to place a number of them on the panel for appointment as Subordinate Judges as and when the vacancies occurred, and the High Court had exercised its power, after fully considering the respondent's case for promotion, to pass him over for a year and that his case was later considered and he was promoted to higher rank. The facts of the case before the Supreme Court are therefore, clearly distinguishable from the facts in the instant case. In the instant case, the petitioner has challenged his supersession by respondents 3 and 4 who are juniors to him in the Provisional Inter-State Seniority List. Apart from the stated reasons, the respondent had not contended that the petitioner is not suitable to hold the post of lay Secretary Grade 1.
13. It is settled law that no Government servant has a right to promotion; his right is only to have his case for promotion considered, which is a right guaranteed under Article 16 of the Constitution That right can be withheld by Imposition of a penalty in accordance with Rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957; the consideration of his case for promotion may be deferred where for instance disciplinary proceedings are pending enquiry until the conclusion of such enquiry. In the absence of any such penalty or order of postponement of consideration for promotion, he is entitled to have his case considered whenever the occasion for promotion arises.
14. It is not the case of the State that there were any disciplinary proceedings against the petitioner to defer consideration of his case for one year. If the Government, after the consideration of the relative fitness of the petitioner and respondents 3 and 4, had superseded the petitioner and promoted respondents 3 and 4, such action would have been non-justiciable. After withholding petitioner's promotion for one year respondents 3 and 4 were posted as Lay Secretaries, Grade I, pending decision of the Government regarding their regular promotions, which clearly establishes that when the Impugned orders were made, the relative fitness of the petitioner and respondents 3 and 4 were not considered and thereby, the equality of opportunity guaranteed by Article 16 was denied to the petitioner. The action of the Government directing withholding promotion of the petitioner for one year and promoting respondents 3 and 4 without considering the relative fitness of the petitioner and his Juniors when the occasion for promotion arose clearly amounts to the imposition of a penalty; and such a penalty can be imposed only following the procedure prescribed by Rule 12 of the Mysore Civil Services (Classification. Control and Appeal) Rules, 1957. For these reasons, we hold that the order withholding the petitioner's promotion is illegal and cannot be sustained. The learned counsel for the petitioner submitted that if the impugned orders are quashed, the relief of mandamus prayed for is unnecessary.
15. For the reasons stated above, we allow the writ petition and quash the impugned order of Respondent 1 made on 25th July 1964, and the Memo issued on 18-1-1965 by respondent 2 relieving petitioner of the charge of his post and posting respondents 3 and 4 to the said post. Respondents 1 and 2 will pay the costs of this petition. Advocate's fee Rs 100.
16. Petition allowed.