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K. Shama Rao Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 47 of 1962
Judge
Reported inAIR1963Mys208
ActsConstitution of India - Article 311; Civil Services Rules
AppellantK. Shama Rao
RespondentState of Mysore
Appellant AdvocateGulur Srinivasa Rao, Adv.
Respondent AdvocateB.S. Keshava Iyengar, High Court Govt. Pleader
Excerpt:
.....of filing of protest petition and thereafter pass appropriate orders in accordance with law. - government pleader has explained to us that the real reason why the first notification was revoked was that although the government was satisfied when the first notification was issued that the petitioner's record of service was satisfactory and this conclusion was reached on the materials which the government had then before it, it was subsequently discovered that there were facts and circumstances which justified the view that the petitioner's record of service was not as satisfactory as it was supposed to be......of birth should be granted if the government servant was physically fit and had a satisfactory record of service. on the 13th of december 1961, government made an order under the provisions of this official memorandum that the petitioner's services should be extended for 11 months and 20 days from the 14th of december 1961. in consequence of this notification, petitioner continued in service even after the 13th of december 1961, and the 4th of december 1962 would have been the date on which he would have retired after the expiry of the period during which his services had been extended. but within about a fortnight after the extended period of service commenced, government issued a second notification recalling with immediate effect the previous notification by which the petitioner's.....
Judgment:

A.R. Somnath Iyer, J.

1. The petitioner before us was an Assistant Engineer in the Public Works Department, and the 14th of December, 1961 was the date on which he would have normally retired after attaining the age of superannuation in accordance with the determination in regard to his real date of birth. But by an Official Memorandum of the 14th of August, 1958, it was provided that in all cases in which there was a review of the date of birth given by a Government servant, and some other date was determined to be the real date of birth, extension of service equal to half the period of difference between the date of birth as originally indicated in the government records and the revised date of birth should be granted if the government servant was physically fit and had a satisfactory record of service. On the 13th of December 1961, Government made an order under the provisions of this official memorandum that the petitioner's services should be extended for 11 months and 20 days from the 14th of December 1961. In consequence of this notification, petitioner continued in service even after the 13th of December 1961, and the 4th of December 1962 would have been the date on which he would have retired after the expiry of the period during which his services had been extended. But within about a fortnight after the extended period of service commenced, government issued a second notification recalling with immediate effect the previous notification by which the petitioner's services had been extended. This notification was issued on the 26th of December 1961. In consequence the petitioner was relieved from his post on the 4th of January 1962.

2. Mr. Srinivasa Rao appearing on behalf of the petitioner has submitted before us that once the petitioner's service, was extended under the provisions of the official memorandum of the 14th of August, 1958, it was impossible for the government to terminate the petitioner's services except under the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 after affording him the two opportunities as directed by Article 311 of the Constitution, It has been pointed out to us that in the second notification issued by the government on the 26th of December, 1961, no reason has been assigned for revoking the previous notification issued by which petitioner's service was extended and that that being so, this is a case in which we should quash the second notification which was issued without the authority of law.

3. Mr. Government Pleader has explained to us that the real reason why the first notification was revoked was that although the government was satisfied when the first notification was issued that the petitioner's record of service was satisfactory and this conclusion was reached on the materials which the government had then before it, it was subsequently discovered that there were facts and circumstances which justified the view that the petitioner's record of service was not as satisfactory as it was supposed to be. Mr. Government Pleader has made available to us the relevant communication addressed to the Advocate General by a Secretary to the Government in which it is stated that this was the reason for the revocation of the first notification.

4. It does not appear to us that we should or cart embark in this case on the investigation of the question whether the supposition made by the government in the first notification that the petitioner's record of service was satisfactory was not a correct supposition and whether the view taken by the government after the petitioner's service was extended that his record of service was not quite satisfactory, was justified. That, is a matter which, in my opinion, besides being irrelevant is not what we can properly investigate. It is enough to say that once the government extended the services of the petitioner after reaching the conclusion that his record of service was satisfactory, the petitioner acquired the right to continue in service during the extended period unless he was removed from his post by a process known to Jaw. If, as it transpires in this case, there was admittedly an application of the mind of the government to the question whether the petitioner's record of service was satisfactory, and the government was of opinion that his record of service was generally satisfactory and that his service therefore could be extended under the official memorandum of the 14th of August 1958, it seems to us that after his service was extended by that process, it was too late for the government to revoke the order by which his service was extended even if it discovered subsequently certain facts which, had they been before the government on the first occasion, might have justified a view different from that which was then taken. Although Mr. Government Pleader claimed for the government the power to review a decision taken by the government in the circumstances in which that review according to him was made in this case, it is clear to our mind that that power which the Government Pleader claims is unavailable. The official memorandum of the 14th of August 1953 which contains exhaustive provisions on the question of extension of service does Rot reserve for the government the power to recall the extension granted under it. What the government can do after it grants an extension is to treat the civil servant whose services have been extended as a civil servant whose tenure of service has not yet come to an end, with the result that the civil servant has the same rights and the same privileges which he had before his service was extended. That being the position, he could not be removed from his post except under the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, and after affording to him the two opportunities guaranteed by Article 311 of the Constitution. That not having been done in this case. It is clear that the second notification issued by the government on the 26th of December 1961 recalling the notification by which the petitioner's service was extended cannot be sustained and is accordingly set aside.

5. The resultant position which emerges from this order would be that the petitioner would be entitled to reinstatement. Mr. Srinivasa Rao has told us that the petitioner is not anxious to obtain an order of reinstatement provided he is paid the salary for that part of the period of 11 months and 20 days during which his service was extended but during which he was not permitted to continue as an Assistant Engineer. The order that we therefore make is, that if the government is willing to reinstate the petitioner, he may be reinstated, in which event, the petitioner must enter upon his duties as an Assistant Engineer until the 4th of December 1968. The option to reinstate the petitioner will therefore be with the government and it will be for the government to exercise its choice in this matter. However that might be, the petitioner will be entitled to the emoluments which would have been payable to him from the 4th of January 19S2 on which day he was relieved until he is reinstated. If the petitioner is not reinstated, he will be entitled to the emoluments for the entire period which expires on the 4th of December 1962. We should add, it would also be open to the government to grant the petitioner if he is entitled to it such leave as may be granted to him under the relevant service rules.

6. Mr. Srinivasa Rao at one stage contended that if the petitioner had been continued in service, he would have been entitled to be promoted as an Executive Engineer, and we should therefore say that he should be paid emoluments higher than the emoluments he would have got as an Assistant Engineer. But the question whether he would have been promoted as an Executive Engineer is a matter upon which it is not for us to speculate since as pointed out by this Court on more than one occasion, no civil servant has a right to promotion which a civil servant may earn on the establishment of multitude of factors in his favour.

7. In the circumstances, we cannot therefore direct the payment to the petitioner any emoluments higher than those which he would have drawn as an Assistant Engineer.

8. In the circumstances, there will be no order as to costs.


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