STATE OF MYSORE Vs. C R SHESHADRI

JUDGEMENT

(1.) The State of Mysore, appellant before us, has raised two contentions, the first being the more material but less meritorious and the second secondary but substantial. The first respondent herein filed a petition under Art. 226 seeking several reliefs including (a) the quashing of an order denying him credit for service while he was private Secretary to three Ministers beginning from October 27, 1946 till July 23, 1954 (with minor interruptions when he served in other capacities, an inconsequential circumstance in this case) when he was made Assistant Secretary, and (b) a direction for payment of such amounts as he would have got had his due inter se seniority and promotion been accorded to him. The High Court granted both reliefs and they are challenged in this Court. There is no doubt, on the pleadings and indubitable evidence on record, that the petitioner came into a Class I post from October 27, 1946 and his claim to service since then running continuously, in undeniable. Learned counsel for the appellant has fairly and rightly conceded the legitimacy of this claim. Indeed, the State Government had accepted the petitioner's right based on the equivalence of the post of Private Secretary and of Assistant Secretary but the Central Government did not agree, and when confronted in Court with overwhelming proof pleaded apologetically that they were not in possession of the full facts when rejecting the petitioner's seniority plea. We affirm that the first respondent is entitled to court his service from October 27, 1946 for fixation in the gradation list.

(2.) Flowing from this finding is the direction by the High Court to give the petitioner notional promotion as Deputy Secretary with effect from the date on which one R. Venkataraman, next below him, secured such promotion and for payment of the excess salary accruing to him on that footing. This part of the judgment is attacked as beyond the power of the Court. We see the soundless of this submission. In our constitutional scheme, a broad three-fold division exists. The power to promote an officer belongs to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. What has been done here is in excess of its jurisdiction. Assuming the petitioner's seniority over Venkataraman, how can the Court say that the former would have been for certain promoted Basically, it is in Government's discretionary power, fairly exercised, to promote a Government servant. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand if seniority-cum-merit is the rule, as in the Supreme-Court decisions cited before us, promotion is probelmatical. In the absence of positive proof of the relevant service rules, it is hazardous to assume that by efflux of time the petitioner would have spiralled up to December Secretaryship. How could we speculate in retrospect what the rule was and whether the petitioner would have been selected on merit, and on the strength of such dubious hypothesis direct retroactive promotion and back pay The frontiers of judicial power cannot be stretched thus far. The proper direction can only be that Government will re-consider the case of the petitioner afresh for purposes of notional promotion. If the service rule entitles him to promotion on the ground of seniority alone, Government will, except for the strongest reason, grant the benefit of promotion with effect from the date Venkataraman became Deputy Secretary. Nothing has been suggested against the petitioner in his career to disentitle him to promotion and we have no doubt Government will give him his meed. However, if the criterion for promotion is one of seniority-cum-merit, comparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is no reason to regard the petitioner's eligibility on merit for Deputy Secretaryship to be denied or delayed when Venkataraman was promoted.

(3.) Counsel for the State made reasonable efforts to help the Court with the relevant rule but his client's co-operation was not forthcoming. We direct the appellant to apply to the first respondent the same rule of promotion as was applied to Venkataraman and to be fair enough not to act adversely without giving him an opportunity. In the light of the State's reluctance to produce the rule we almost think the High Court order is substantially just. Even so, it is for the Government to promote with retrospective effect. We, therefore, set aside the second part of the High Court's order in the judicial hope that justice will be done to the petitioner.