Supreme Court Dismisses State Appeal in Deputation Reversion Case; Government Servant Entitled to Promotion in Parent Department. Rule 50(b) of Bombay Civil Services Rules Mandates Restoration of Position Had Deputation Not Occurred.

Case Note & Summary

The Supreme Court of India heard an appeal by the State of Mysore against a judgment of the Mysore High Court which had granted relief to the respondent, M.H. Bellary, a government servant originally employed by the Government of Bombay. The dispute concerned the respondent's reversion from deputation and the fixation of his pay and seniority in his parent department. The respondent was recruited as an Upper Division Clerk in 1931 and later appointed substantively as a Junior Assistant in the Political Department of the Bombay Government. In 1943, he was sent on deputation to the office of the Controller of Rationing, Bombay, as a Senior Assistant. He received successive promotions in the rationing department and by March 1954 was drawing a pay of Rs. 460 per month in the grade of Rs. 350-30-650 as Rationing Officer. When that temporary department was abolished in March 1954, he was reverted to his parent department. Instead of being restored to his original position, he was first posted to the Labour Department and then to the Public Works Department, with his pay fixed at Rs. 120 per month. He protested against this reversion, claiming that under the relevant rules, he should have been restored to the position he would have held in his parent department had he not been deputed. He emphasized that the officer next below him in his parent department, Nadkarni, had been promoted to the post of Assistant Secretary. After the States Reorganisation Act of 1956, the respondent was allotted to the State of Mysore. On November 27, 1958, the Government of Mysore informed him that he should be considered to have held the post of Senior Assistant from June 1, 1954, with a salary of Rs. 225 in the grade of Rs. 210-15-300. The respondent still found this unsatisfactory and claimed that on reversion he was entitled to be posted as Assistant Secretary with the applicable scale of pay, since his junior had been promoted to that post. When the Government refused, he filed a writ petition under Article 226 of the Constitution seeking a writ of mandamus to include him in the grade pay of Assistant Secretary and to fix his seniority above Nadkarni. The State raised a preliminary objection that the petition was not maintainable because the respondent relied on an administrative circular dated October 31, 1950, which, it argued, did not confer enforceable rights. The High Court referred the question of maintainability to a Full Bench. Before the Full Bench, the Advocate-General clarified that the circular merely gave effect to a statutory rule, specifically Rule 50(b) of the Bombay Civil Services Rules. The High Court held that the respondent was entitled to invoke the jurisdiction of the court when there was a violation of a statutory rule and granted relief. The State of Mysore appealed to the Supreme Court on a certificate granted by the High Court under Article 133. Before the Supreme Court, it was not disputed, in view of the decision in State of U.P. v. Babu Ram Upadhya, that a breach of a statutory rule framed under Article 309 or continued under Article 313 relating to conditions of service could give rise to a cause of action. The main contention of the appellant State was that the respondent was not entitled to a post higher than Senior Assistant or a salary higher than that fixed by the impugned order. The Supreme Court rejected this contention. It held that assuming the respondent had a lien and his lien had not been suspended, it was not possible to interpret Rule 50(b) as providing different criteria for cases where a lien existed and where it had been suspended. The rule and the circular made it clear that an officer on deputation should be restored to the position he would have occupied in his parent department had he not been deputed. The Court further held that where promotions are based on seniority-cum-merit, an officer on deputation has a legal right to claim promotion to a higher post in his parent department provided his service in the department to which he was lent was satisfactory. This right might not apply to selection posts. Accordingly, the Supreme Court dismissed the appeal and affirmed the High Court's decision, holding that the respondent was entitled to be considered for the post of Assistant Secretary and the applicable pay scale, with seniority above Nadkarni.

Headnote

Issue of Consideration

Final Decision

Supreme Court dismissed the appeal and affirmed the High Court's decision, holding that the respondent was entitled to be considered for promotion to Assistant Secretary and pay scale applicable to that post, with seniority above Nadkarni.

Law Points