# [1967] 2 S.C.R. 70

- **Citation:** [1967] 2 S.C.R. 70
- **Court:** Supreme Court of India
- **Decided:** 1965-09-30
- **Case number:** Civil Appeals Nos. 2174 and 2175 of 1966
- **Bench:** K. N. Wanchoo, G. K. Mitter, C. A. Vaidiaungam, Jj.)
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-2-s-c-r-70-4172
- **Pages:** 7

## Headnote

B
Conrtitution of India, 1950, Art. 226--Writ
of mandamus-Conct.r-
.-slons shown by State to some officus-·When could be claimed by oth..rs.
In the State of Mysore, before it waa reorgani!ed under the States
Reorganisation Act, 1956, surveyors who were posted .. omcera io charge
.of sub-divisions were promoted aa Assistant Bngioeera. The petitionera
·were placed io charge of sub-divisions between December 1945 and NovC
ember 19491 and the then
Government, by
a ootillcation dated
12th
December 1949, ordered that their promotions were to take elfect from
that date irnspective of the dates oo which they were put in charge of the
sub-divisions. But, by a notification dated 17th May 1950, the Oovemmelll showed a concession to a different batch of 41 surveyon, who bad
been placed io charge of different sub-divisions between March 1944 and
January 1946, by promoting them aa As•istant Bngintera, with effect from
the dates of occurrence of vacancies, according to oeniority.
Io November
D
1958, another batch of 107 peraons were promoted as Assistant Engineen
.and they also were shown
a concession
by giving their appointmenl.9
retrospective effect from !st November, 1956, when the new State of
Mysore emerged under the States Reorganisation Act.
The petitioners filed a writ petition io the High Coun, io 1964, contending that there was nothing io the service rules which preventd the Government from granting such concessions to the petitioners also, aod for
E
the issue of a writ of mandamus directing the State to llx their seniority
also, oo the basis that they had become Assistant Eogioeen from the dates
<>n which the vacancies to which they bad been posted uad occurred.
The petition was dismissed.
Oo appeal to this Court,
HELD : (a) The concessions shown to the batch of 41 persons who
bad been appointed before the petitioners and to the batch of I 07 penons
who had been appointed thereafter, were mere ad hoc concessions and not
"Something
which they could claim as of riflht. The Coun, tl>erefore,
-could not issue a writ of maudamus commanding the State to show such a
concession or other indulgence to the petitioners because, there waa no
service rule which the State had transgressed, nor bad the State evolved
'Boy principle to be followed in respect of penoos who were promoted to
the rank of Assistant Engineers from surveyors. [75 H-76 BJ
(~) The petitiooen, not having filed the petition within a reaS<'oable
time after 17th May 1950 were guilty of !aches, and were not entitled to
any relief. 176 11-C]

## Text

K. V. RAJALAKSHMIAH SETIY & ANR.
.\
1'.
STATE OF MYSORE AND ANR.
November 7, 1966J
(K. N. WANCHOO, G. K. MITTER AND C. A. VAIDIAUNGAM, JJ.)j
B
Conrtitution of India, 1950, Art. 226--Writ
of mandamus-Conct.r-
.-slons shown by State to some officus-·When could be claimed by oth..rs.
In the State of Mysore, before it waa reorgani!ed under the States
Reorganisation Act, 1956, surveyors who were posted .. omcera io charge
.of sub-divisions were promoted aa Assistant Bngioeera. The petitionera
·were placed io charge of sub-divisions between December 1945 and NovC
ember 19491 and the then
Government, by
a ootillcation dated
12th
December 1949, ordered that their promotions were to take elfect from
that date irnspective of the dates oo which they were put in charge of the
sub-divisions. But, by a notification dated 17th May 1950, the Oovemmelll showed a concession to a different batch of 41 surveyon, who bad
been placed io charge of different sub-divisions between March 1944 and
January 1946, by promoting them aa As•istant Bngintera, with effect from
the dates of occurrence of vacancies, according to oeniority.
Io November
D
1958, another batch of 107 peraons were promoted as Assistant Engineen
.and they also were shown
a concession
by giving their appointmenl.9
retrospective effect from !st November, 1956, when the new State of
Mysore emerged under the States Reorganisation Act.
The petitioners filed a writ petition io the High Coun, io 1964, contending that there was nothing io the service rules which preventd the Government from granting such concessions to the petitioners also, aod for
E
the issue of a writ of mandamus directing the State to llx their seniority
also, oo the basis that they had become Assistant Eogioeen from the dates
<>n which the vacancies to which they bad been posted uad occurred.
The petition was dismissed.
Oo appeal to this Court,
HELD : (a) The concessions shown to the batch of 41 persons who
bad been appointed before the petitioners and to the batch of I 07 penons
who had been appointed thereafter, were mere ad hoc concessions and not
"Something
which they could claim as of riflht. The Coun, tl>erefore,
-could not issue a writ of maudamus commanding the State to show such a
concession or other indulgence to the petitioners because, there waa no
service rule which the State had transgressed, nor bad the State evolved
'Boy principle to be followed in respect of penoos who were promoted to
the rank of Assistant Engineers from surveyors. [75 H-76 BJ
(~) The petitiooen, not having filed the petition within a reaS<'oable
time after 17th May 1950 were guilty of !aches, and were not entitled to
any relief. 176 11-C]
CIVIL APPELLATE JuRISDICTION : Civil Appeals Nos. 2174
and 2175 of 1966.
Appeals by special leave from the judgment and order dated
September 30, 1965 of the Mysore High Court in Writ Petitions
NOS. 1745 and 1779 of 1964.
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RAJALAKSHMIAH SETTY v. MYSORE (Mitter, J.)
71
A
S. V. Gupte, Solicitor-General and R. B. Dattar, for the
appellants.
B. R. L. Iyengar, S. S. Javali and S. F. Nayar, for the respondents.
B, P. Singh and R. B. Dater, for the interveners.
B
The Jm~gment of the Court was delivered by
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Mitter, J. These are two appeals from a common judgment
and order of the High Court of Mysore covering a number of
Writ Petitions filed in that Court on special leave granted ty this
Court.
The appellants are two out of a total number of 43 persons
who filed separate petitions under Art. 226 of the Constitution
before the Mysore High Court on October I, 1964. The main
. prayer in all the petitions was that a writ of mandamus should
be issued commanding the State of Mysore to promote each petitioner to the cadre of Assistant Engineers from the date on which
the petitioner was placed in charge of a sub-division with all consequential benefits. To put in short, the demand of the petitioners
was that they should all receive benefits which others p~omoted
before and after them had received. According to the petitions,
some of these persons had received such benefits before the petitioners and some had been accorded similar advantages although
they were promoted as Assistant Engineers Jong after the petitioners, but the State of Mysore had, without any reason, jeciined
to give similar benefits to the petitioners.
The facts as they emerge from the affidavits and the documents referred to therein are as follows. The State c>f Mysore,
before the States Reorganisation
Act 1956, used to employ
engineering graduates for a long time past designating them as
surveyors. The State
had another cadre of engineers known as
Assistant Engineers. Surveyors who were posted as officers in
charge of sub-divisions were from time to time promoted to the
cadre of Assistant Engineers. Between March 24, 1944 and
December 15, 1944, a batch of 27 surveyors were placed in charge of
different sub-divisions in the State. This batch was promoted
to the cadre of Assistant Engineers with effect from May 21, 1945.
Another batch of officers who were placed in charge of sub-divisions
between May 11, 1945 and January 2, 1946 were similarly promote<:'.
with effect from January 17, 1947. By a notification dated May 17,
1950 the Government of Mysore decided to give all these 41 persons
the benefit of promotion as Assistant Engineers with effect from
the dates of occurrence of vacancies according to seniority. They
were further to have the benefit of the grant of initial pay witt
weightage from October 1, 1948 in the revised scale of pay. The
petitioners comprising a batch of 63 surveyors were placed in charge
72
SUPB.EMB
COURT llEPOll TS
[1967] 2 S.C.ll.
of sub-divisions on diverse dates between December 28, 1945 and
November 13, 1949. With regard to most of these, the Chief
Engineer of the State recommended to the Government of Mysore
that they should be promoted as Assistant Engineers with retrospective effect from the dates they ·.vere placed in charge of subdivisions.
By a letter dated Decembe1 5, 1948 addressed by t"e
Secretary to the Governme.1t of lvlysore to the Chief Engineer, the
latter was requested to post most of this batch of surveyors including one Siddaveerappa in charge of sub-divisions as shown in
the accompanying statement pending issue of orders on the question of filling up vacancies existing in the Assistant Engineers'
cadre. By notification dated December 21, 1949 these 63 persons
were directed to be promoted as temporary Assistant Engineers
in the Public Works Department against existing vacancies. On
the same date, the Chief Engineer was requested to forward to
Government an allocation statement showing the vacancies against
which the newly promoted Assistant Engineers were counted, the
dates from which the posts were vacant and the dates on which
they had been in charge of sub-divisions. On March 7, 1950
the Chief Engineer by his communication No. 1839-40 Est. supplied particulars to Government of the dates on which each of
these 63 persons had assumed charge of a sub-division. On September 28, 1953, the Chief Engineer addressed D.O. letters to all the
63 Assistant Engineers for particulars of dates on which each of
them had taken such charge. This was complied with by all the
addressees.
By a letter dated December 13, 1956, the Chief Engineer drew the attention of the State Government to the fact that
these 63 persons had been promoted in respect of vacancies which
had existed long prior to December 21, 1949 (the date of notification
mentioned above) and that some of :i1e vacancies
had
existed
for over four years prior to that date. According to the Chief
Engineer, had these persons been promoted as and when vacancies occurred, they would not only nave been in receipt of a much
higher pay in their progressive grade but also would have been senior
to many of the Assistant Engineers who had come in from the newly
merged areas of Hyderabad, Bombay and Madras. The Chief
Engineer also cor..mented that in addition to this double disadvantage co which these persons had been exposed, they were also
going to lose all chances of promotion to the higher ranks because
the Assistant Engineers from the merged areas were all younger
to them in age. The attention of the Government was drawn to
the promotion of a previous batch of 41 supervisors already mentioned. The letter ended with a recommendation that a similar
consideration should be extended to these 63 persons and their
ranks in the common civil list he fixed with reference to the date
of occurrence of the vacancies.
It appears that the Chief Engineer
pursued this subject from time to time mal-ing his recommendation about these persons.
By letter dated July IO, 1957 the Chief
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RAJALAKSHMIAH SETTY v. MYSORE (Mitter, I.)
73
Engineer pointed out that as the Inter-State seniority list of Assistant Engineers was soon to be finalised and the service in the cadre
was to be the criterion for fixing relative ranks, it was right
that these 63 persons should be reckoned as promoted from the
dates of occurrence of :'ie vacancies and their relative ranks in the
integrated seniority list be fixed accordingly. Another .Jetter on
the subject was addressed by the Chief Engineer to the State Government on December 28, 1957. With regard to the recommendation already made by him, the Chief Engineer enclosed a
modified Inter-State seniority list from serial numbers 28 to. 92
to show that only a few Deputy Engineers of Bombay who were
far junior in age and service would be ra11ked below these 63 persons of the erstwhile Mysore State and this would not affect these
men from Bombay inasmuch as the 63 Mysore Engineers were very
much older and would not bar the prospects of promotion of the
juniors.
There was another batch of 107 persons who were promoted
to the cadre of Assistant Engineers by notification dated November
15, 1958. Their appointments were given retrospective effect
not from the dates on which they had assumed charge but from
November 1, 1956. Although these officers did not receive the
benefit of promotion from the dates on which the vacancies had
occurred, they certainly received some benefit which had been
denied to these 63 persons. Similarly, two batches of 32 surveyors
and 124 surveyors were promoted by notifications dated July 3,
1963 and Octoher 9, 1963.
During the argument, our attention was drawn by the learned
Solicitor-General appearing for the appellants to another instance
where some clerks had received benefit of promotion with retrospective effect.
According to the appellants, they had been clearly discriminated against considering the case of 41 persons who had been
appointed before them as well as the subsequent batches of surveyors who had been promoted after them. The petitioners' complaint was that the order of May 17, 1950 gave special concession
to these 41 officers to which they were not entitled under the rules.
G
At the same time, it was argued that there was nothing in the service rules which prevented the Government from granting such
concessions to the petitioners and the sum and substance of the
argument of the learned Solicitor-General was that if such conceBsions could be gi·ven to persons who had been appointed before
these 63 persons as well as persons who had been appointed subseH
quently, there was no reason why such concessions should have
been withheld from his clients. In c9nclusion, it was urged that
it was just and proper that the State of Mysore should be directed
to fix the scale of seniority of these 63 persons on the basis that
Ml9Sup.Clf66-6
74
SUPREME COURT JlBrORTS
(1967) 2 S.C.11..
they bad become Assistant Engineers from the dates on which the
A
vacancies to which they bad been posted had c,..:curred so that they
would not lose their chances of promotion in higher posts, for if
the seniority list was allowed to remain as it is, persons who were
younger in age and junior in service to this batch of 63 persons
would receive promotions ahead of them for no fault of theirs.
According to the counter affidavit of the State of Mysore used
before the Higl• Court, the idea behind giving some concession
•o the batch of 41 persons was to give them some financial benefit
ns from a particular date, viz., 1-10-1948 and no more. This does
not appear to be strictly accurate in view of the order dated May 17,
1950. With regard to the batch of 63 persons, it was said that the
necessary details regarding their seniority and dates of occurrence
of vacancies were not available when the notification dated December 12, 1949 was published. According to Government, these
people could not be given promotion with retrospective effect
as the dates of assumption of charge in sub-divisions by them was
not strictly in accordance with the seniority. Antedating their
promotions to the dates on which they had taken charge would
resuit in some junior officers being ranked above some senior persons and it was for this reason that Government had ordered the
promotion of these 63 persons to take effect from the date of notification irrespective of the dates from which they were put in charge
of the sub-divisions. It was also said that the promotion of this
batch was subject to the condition that they should be ranked in
the order of seniority as per gradation list that obtained just before
promotion. This state of affairs continued right up to the date
of Reorganisation of the States in November 1956. The affidavit
goes on to state that
"· · ·in view of the Re-organisation of the State ...
and the statutory recognition of the position of several
officers as on 31-10-1956, it was no longer open to the new
Mysore Government to re-open the issue settled in 1949."
With regard to the batch of 107 persons it was said that Go.vernment had ordered their promotion only from November 1, 1956
and it was not competent to order the same from an earlier date. In
regard to the two batches of 32 surveyors and 124 surveyors promoted in 1963, it was said that they were all in charge of sub-divi-
~ion:; from the dates subesquent to November 1, 1956 and there
•· ·s no difficulty in promoting them from the dates on which they
t.u assumed charge of sub-divisions. According to the State as:
"· these incidents occurred after the Reorganisation
and the formation of a new State, the new State of
Mysore was perfectly justified in giving effect to their
promotions accordingly."
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RAJALAKSHMIAH SETTY v. MYSORE (Mitter, J.)
75
With regard to the 63 persons, the point of view of the State
of Mysore is that the new State which emerged after the Reorganisation of States in 1956 was not competent to interfere with the
state of affairs prior to 1-11-1956 and Government had no power
to re-open their cases.
According to Mr. Iyengar who appeared for the State, assuming that law il)cluded executive directions for the purpose of Art.
14 of the Constitution, we have to see : (a) whether there is a rule
which has been unevenly applied as among equals ; (b) if a principle has been evolved, whether it has been unevenly applied ; and
(c) whether there has been an equal treatment in applying executive
orders.
Mr. Iyengar argued that there was no rule which had been
violated in this case nor any principle had been evolved which
could be said to have been unevenly applied nor was there any executive order which has been given effect to in different ways in
different cases. Mr. Iyengar's sec©nd submission was that if the
63 persons were to be fixed in the cadre with respect to the dates
on which they wen first put in charge of sub-divisions, the seniority
list with regard to the whole cadre of engineers would have to be
altered thus affecting persons who are not before us and who would
be condemned unheard. His thlrd submission was that giving effect
to the contention of the appellants would be projecting Art. 14
to a date before the Constitution came into force and thls could
not be allowed. He also argued that the appellants had been
guilty of !aches in making their applications in 1964 when they
were really complaining of an order whlch had been passed as
far back as May 17, 1950. It was contended that the appellants
had been able to give no explanation as to why they did not apply
in between the date of the impugned order and the !st of November
1956 when the Reorganisation of States became effective.
Mr. Iyengar further contended that in reality a concession
had been shown to some persons and the petitioner/appellants
had no legal right to claim such concession. He also argued
that giving effect to the contention of the petitioners would be
going against s. 115 sub-s. (7) of the States Re-organisation Act,
1956.
There is some force in some of the contentions put forward
on behalf of the State of Mysore. It is not necessary to test them as
we find ourselves unable to uphold the contention of the
appellants. No doubt some concession had been shown to the
first batch of 41 penons and the batches of persons who had come
in after the batch of 63 persons also received some concession, but
after all these we~e concessions and not something which they
could claim as of right. The State of Mysore might have shown
76
SUPRBMB COURT RBPORTS
(1967) 2 S.C.R.
some indulgence to this batch of 63 persons but we cannot issue
A
a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved
any principle to be followed in respect of persons who were promoted
to the rank of Assistant Engineers from surveyors. The indulgences
shown to the different batches of persons were really ad hoc and
we are not in a position to say what, if any, ad hoc indulgence
B
should be meted out to the appellants before us.
There is also a good deal ~f force behind the contention that
the appellants are guilty of !aches. After the passing of the order
of May 17, 1950, they should have made an application within a
reasonable time thereafter.
Merely because the Chief Engineer
had espoused their cause and was writing letters from time to time
C
to the State Government to do something for them did not mean
that they could rest upon their oars if they were really being dis.-
criminatcd against. As we cannot hold that the appellants were
entitled to any particular indulgence or concession, the only way
of meting out equality to all surveyors who had been promoted
to the cadre of Assistant Engineers would be to say that promotions
D
should in all cases be effective from the dd!e of the notification.
This is obviously beyond our powers.
In the ·result, the appeal fails and is dismissed, but on the facts
of this case, we make no order as to costs of this appeal. This
order will also govern the case of S.A. Mur.i Reddy who alone
out of 37 persons was allowed to intervene in this appeal by our
E
order made on I Ith October, 1966.
V.P.S.
Appeal dismissed.