STATE OF MYSORE Vs. M H BELLARY

JUDGEMENT

(1.) A very short question regarding the proper construction of Rule 50 (b) of the Bombay Civil Services Rules is involved in this appeal which comes before us by a certificate of fitness granted by the High Court of Mysore under Art. 133 of the Constitution.

(2.) The facts giving rise to this appeal which are necessary to be narrated to appreciate the only point urged before us were these:The respondent was recruited as an Upper Division Clerk by the Government of Bombay in 1931 and was later appointed substantively as a Junior Assistant in the Political Department. While so, on September 17, 1943 his services were transferred on deputation to the office of the Controller of Rationing, Bombay to work as a Senior Assistant in the newly started Rationing department which was a temporary department. He obtained successive promotions in this department and by March, 1954 he was drawing a pay of Rs. 460 - p.m. in the grade Rs. 350-30650 as Rationing officer. That department was abolished in March, 1954 and thereafter he was reverted to his parent department. Though his parent department was the Political Department, the respondent was, after he ceased to be a Rationing Officer, posted first to the Labour Department and then to the Public Works Department. When this reversion took place his pay was fixed at Rs. 120/- p.m. The petitioner protested against this reversion and this loss of his emoluments on the ground that this fixation of pay was contrary to the Rules framed by Government in regard to the service conditions of a Government servant who was appointed on deputation in another department. He also pointed out that the officer next below him in his parent Department had been appointed as an Assistant Secretary by virtue of normal and regular promotion. Before, however, final orders were passed on his representations by Government of Bombay, the States Reorganisation Act, 1956 came into form and the respondent was allotted to the State of Mysore. On November 27, 1958 the Government of Mysore informed the respondent through an official memorandum that in view of certain communications received by that Government from the Government of Bombay in answer to his representations he should be considered to have held the post of Senior Assistant on June 1, 1954 on a salary of Rs. 225/- in the grade Rs. 210-13-300. The petitioner's complaint; however was that even this order was in violation of the conditions of his service and he claimed that when he was reverted to the parent department he was entitled to be posted as an Assistant Secretary -a post which according to him, he would have held on that date had he not been deputed to the department of Civil Supplies on September 17, 1943. There was no dispute that subject to an argument to which we shall refer presently, the respondent would have held the post of Assistant Secretary because the person next below him one Nadkarni - actually held that post on that day. The respondent claimed that on the basis of the Service Rule to which we shall immediately make reference he should, on his return to the parent department, have been posted as (an Assistant Secretary and been allowed the scale of emoluments applicable to that post. As the Government of Mysore refused to accede to his demand the respondent filed a petition under Art. 226 for inter alia a writ of mandamus directing the appellant State to include the petitioner in the grade-pay of an Assistant Secretary and fix him above Nadkani.

(3.) The appellant raised a preliminary objection to the writ petition, the objection being that the complaint of the petitioner was not justiciable. This was primarily based upon the fact that the respondent relied upon a circular of the Government of Bombay dated October 31, 1950 in support of his plea that he was entitled to the benefit that he claimed on reversion to the parent department from his service on deputation. The material part of that circular runs: