SANGAPPA BASAPPA UPNAL Vs. STATE OF MYSORE

JUDGEMENT

(1.) Petitioner Sangappa Basappa Upnal who had been an officiating aval karkun or sheristedar had been reverted in consequence of an order dated 11 March, 1959, made by the Government of Mysore, to his substantive post of a clerk. (It would appear that subsequent to the said order of reversion the petitioner has been again promoted on an officiating basis to the post of an aval karkun in due course; but, this is not material for the purposes of the present writ petition.) The present writ petition has been filed for the purpose of getting an order from this Court quashing the said Government order dated 11 March 1959 (which is to be found in annexure H). Respondent 1 is the State of Mysore; respondent 2 is the Divisional Commissioner of Belgaum Division and respondent 3 is one Kalpavrix who also is an aval karkun and it is at his instance that the order as per annexure H was passed by the Government of Mysore. It may be stated that annexure H does not in terms refer to the petitioner, but it refers to a category of persons amongst whom is included the present petitioner.

(2.) It may be necessary, to understand the question arising in this case, to briefly set out certain material facts of the case. Prior to the reorganization of the States (which took place on 1 November, 1956), the petitioner was an official in the service of the Bombay Government. He was appointed, for the first time, as a clerk in the Bijapur Collector's Office, on 13 September, 1942. After he passed the sub-service examination, he was confirmed as a clerk, on 8 October, 1949. He appears to have been a satisfactory and efficient official; consequently, he was selected for serving in the Divisional Commissioner's Office at Belgaum. During that period, there was one examination called the Revenue Qualifying Examination, which these clerks had to pass in order to become eligible for being promoted as aval karkuns. The practice appeared to be that clerks who were found to be efficient and suitable were being selected for appearing for this examination. This was in addition to the necessary qualification, viz., that in the case of graduates, they should have put in a qualifying service of at least five years and in the case of non-graduates, they should have put in a qualifying service of seven years. Though the ordinary rule was that the officials should be permitted in the order of their seniority, for appearing for the said examination, occasionally junior clerks were also selected, for various reasons, to appear for this examination even though their seniors had not secured such a permission. The permission which was being so given to juniors on account of some special consideration, was being referred to as an out-of-turn permission. Anyhow, the petitioner was able to obtain such an out-of-turn permission to appear for the revenue qualifying examination. Accordingly, in October, 1950 he appeared for that examination and succeeded in passing the examination at the first attempt. According to the rules pertaining to seniority, as indicated by annexure C (which is a copy of the resolution of the Government of Bombay dated 13 January, 1949), the position, briefly stated, was as follows. The mere fact that a clerk who was relatively junior passed the examination while his seniors had not passed it, did not, by itself alter their seniorities. As long as his seniors succeeded in passing the revenue qualifying examination at the first or the second attempt (even though it be at an examination subsequent to that in which the junior had passed), the seniority as it obtained in the lower grade was maintained. It was only when the junior official had passed the revenue qualifying examination and his senior had either failed to pass that examination in two attempts or had claimed an exemption from passing, that the junior would be maintained even though the senior passed the revenue qualifying examination only subsequently, but in the first or second attempt. This position appears to have prevailed till the Bombay Government resolution dated 13 January, 1949 as per annexure D. By this resolution as per annexure D, the Government of Bombay directed that as from the revenue qualifying examination held in February 1952, the seniorities of the concerned officials would be regulated in the order of their passing the said examination. In respect of those officials who have passed this examination prior to the examination in February 1952, the Government of Bombay directed in this very same resolution as per annexure D, that they should obtain and maintain their seniority for promotion, according to the existing order. What the Government of Bombay appears to have meant by this is that those officials who had passed the revenue qualifying examination or some examination held prior to February 1952 would continue to be governed by the rules applicable to them prior to the order as per annexure D.

(3.) While such was the position which obtained under the relevant rules governing the conditions of the petitioner's service, at that time in the State of Bombay, the petitioner seems to have been promoted on an officiating basis as aval karkun, consequently on his passing the revenue qualifying examination held in October, 1950. While he was continuing to hold that post, the Government of Bombay passed another order dated 24 January, 1952 as per annexure E. It stated that the junior clerks were being granted permission to appear for the revenue qualifying examination while their seniors were not granted such permission. Indicating its disapproval to such out-of-turn permission being granted, the Government of Bombay directed that the clerks who had been appointed as aval karkuns in consequence of having passed the revenue qualifying examination after getting out-of-turn permissions, should not be confirmed as aval karkun until their immediate seniors were confirmed. A statement showing the names of the clerks who, in consequence of having been granted out-of-turn permissions, had passed the revenue qualifying examination and had been appointed as aval karkuns and in respect of whom the Government had directed that they should not be confirmed while their seniors were still unconfirmed, was appended to the order as per annexure E. Amongst the names mentioned in that statement is also to be found the name of the present petitioner. In consequence of this Government order as per annexure E, the Collector of Bijapur district wrote the letter dated 2 March, 1952, as per annexure E, to the Secretary to the Government in the Revenue Department of the State of Bombay. Adverting to the Government order as per annexure E, the Collector pointed out with reference to the officials whose names had been set out in the statement appended to the order as per annexure E, and asked for a confirmation of his presumption that if these officials had been already confirmed as aval karkuns, the same had to be cancelled. He also indicated in that letter the particular examination (by the year) at which those persons would have been eligible to appear had they been granted the permission in the normal course, with due regard to the claims of their seniors. In respect of the present petitioner, the Collector stated that he would have been eligible to appear at the examination held in October 1952. In reply, to the above query by the Collector, the Government of Bombay stated in their letter dated 29 April, 1952 that the presumption made by the Collector was correct. The position which resulted from this correspondence, was that the revenue qualifying examination for which the petitioner could have been permitted in the normal course, to appear, was that held in October 1952; secondly, the petitioner could not be confirmed as an aval karkun while his seniors remained unconfirmed. In consequence of the Government order as per annexure E and the correspondence between the Collector and the Government, above referred to, the petitioner was one of the persons who was reverted from the position of aval karkun to his substantive post as a clerk. From what has been stated by the petitioner at Para. III of his affidavit, the petitioner's representations to the Government of Bombay to cancel the order reverting him from the position of an aval karkun to his substantive post as a clerk, proved unsuccessful. This position continued until 1 November, 1956, the date of the reorganization of the States. The petitioner was one of the officials allotted to the new State of Mysore under the provisions of the States Reorganization Act. The petitioner thereafter continued to be holding the substantive post of a clerk in the new State of Mysore. Then, one Kadrolimath, who also had been a clerk in the State of Bombay and had been allotted to the new State of Mysore, under the provisions of the States Reorganization Act, made a representation to the Government of Mysore. His grievance appears to have been that for the purpose of fixation of seniority, the date that had to be taken into account was the actual date on which the revenue qualifying examination was passed by the concerned clerks; and not the deemed date which was being given by the Government of Bombay (in order to maintain the seniority of the other senior clerks who passed that examination at the first or second attempt, though at a subsequent date). The representation made by the said Kadrolimath found acceptance at the hands of the Government of Mysore which passed the order dated 10 March, 1958, a copy of which has been produced as annexure G. By this order, the Government of Mysore stated as follows :