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M. Munivenkatappa Vs. Commissioner of Corporation of City of Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1546 of 1964
Judge
Reported inAIR1967Kant253; AIR1967Mys253; (1967)1MysLJ102
ActsMysore Civil Service Rules - Rule 60; Constitution of India - Articles 310 and 311
AppellantM. Munivenkatappa
RespondentCommissioner of Corporation of City of Bangalore and ors.
Appellant AdvocateP. Subba Rao, Adv.
Respondent AdvocateS.V. Subramaniam, ;Rangaswamy Rao, Advs. for ;Spl. Govt. Pleader and ;P.K. Shamsundar, Adv. for ;Spl. Govt. Pleader
Excerpt:
- .....in which he worked until august 17, 1964, and on his return to the corporation he was promoted as revenue inspector by an order made by the corporation on august 19, 1964.3. the petitioner complains that since he was senior to respondent 2, he should have been promoted as revenue inspector when respondent 2 was promoted.4. the only ground on which mr. subramanyam appearing for the corporation defends the promotion of respondent 2 is that when he was in the service of the social welfare department of the state, the commissioner had 'seconded' his appointment as revenue inspector on january 7, 1959. it has been explained to us that the expression 'seconded' means that in the opinion of the commissioner respondent 2 was eligible for promotion to the post of a revenue inspector. so it was.....
Judgment:
ORDER

1. The petitioner was appointed as mutsaddi in the service of the Bangalore City Municipal Council on November 20, 1943 Respondent 2 was appointed to that post on November 30, 1951. In a gradation list prepared by the Corporation of the City of Bangalore the petitioner was assigned the 40th rank and respondent 2 was assigned rank 79 (a)

2. At a particular stage respondent 2 was deputed to the Social Welfare Department of the State in which he worked until August 17, 1964, and on his return to the Corporation he was promoted as revenue inspector by an order made by the Corporation on August 19, 1964.

3. The petitioner complains that since he was senior to respondent 2, he should have been promoted as revenue inspector when respondent 2 was promoted.

4. The only ground on which Mr. Subramanyam appearing for the Corporation defends the promotion of respondent 2 is that when he was in the service of the Social Welfare Department of the State, the Commissioner had 'seconded' his appointment as revenue inspector on January 7, 1959. It has been explained to us that the expression 'seconded' means that in the opinion of the Commissioner respondent 2 was eligible for promotion to the post of a Revenue Inspector. So it was urged that this process of seconding entitled respondent 2 to preferential promotion.

5. We do not think so. It is not disputed that, until now the seniority of the petitioner who had been assigned the 40th rank in the gradation list has not been displaced, and that respondent 2 continues in the gradation list to hold the rank 79(a). Mr. Subramanyam Informed us that there was no reason why the petitioner should not have been promoted as revenue inspector when respondent 2 was promoted. Mr Subramanyam also stated that there was no ground for the preference of respondent 2 except the 'seconding'

6. When the petitioner continued to stay in the Corporation and respondent 2 was sent to the Social Welfare Department, although the two spheres in which these two persons were functioning were different, the fact that they worked in two distinct spheres could not affect the seniority of the petitioner in the parent sphere, the Corporation, in which both of them were working. The fortuitous advancement in the department to which respondent 2 was deputed, could not result in the deprivation of the seniority in the rank of the petitioner, when respondent 2 returned to the Corporation.

7. The principle which the rule known as, the 'next below' rule which is Rule 60 of the Mysore Civil Services Rules incorporates, is equally applicable to employment in the Corporation The principle of that rule is that, if a person working in one sphere of employment is deputed to work in another, every advancement which the person immediately next below him in his parent department acquires or secures must also be equally made available to the person who was sent on deputation. Conversed it should follow that if a person was senior in the parent department to the person deputed, he would continue to be senior to him even when the person deputed returns to the parent department, whatever might have been the position occupied by him in the department from which he so returned. On his return he does not acquire a preferential claim to promotion, unless the person above him is found un-worthy of promotion for any reason whatsoever. An act of 'seconding' by the Commissioner can make no difference in the true position.

8. Since it is not alleged on behalf of the Corporation that the petitioner was unworthy of promotion, and on the other hand since it is submitted to us that there was no ground for refusal of that preferential promotion to which the petitioner was entitled, it should follow that when respondent 2 was promoted, the petitioner should have been promoted in preference to him.

9. Mr. Subramanyam appearing for the Corporation and Mr. Rangaswamy Rao appearing for Respondent 2 state that, in that situation, they would have no objection to our issuing a direction to the Corporation that the petitioner should be promoted as a revenue inspector with effect from the date on which respondent 2 was promoted, and should be placed above him We make a direction accordingly

10. Mr. Rangaswamy Rao however submits that, during the pendency of this writ petition, many others have been promoted and that some of them are juniors to respondent 2. He therefore submits that it is just possible that In consequence of the direction that we have now made in this writ petition, his seniority vis-a-vis himself and his juniors is likely to be affected. It is however clear that there will be no deprivation of the seniority in that way. If any person who is junior to respondent 2 has been promoted it should follow that respondent 2 should be retained in the post of a revenue inspector and that the rank that should he assigned to him should be a rank immediately above his junior who has been so promoted Thai is what the Corporation should do

11. The petitioner will now be promoted by the Corporation as directed by this order and he will be assigned a rank above those who are juniors to him in the gradation list. The promotion will take effect from the date on which respondent 2 was promoted and the petitioner shall be entitled to all the benefits which flow from this order which we have made

12. No costs.

13. Petition allowed


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