# [1968] 3 S.C.R. 363

- **Citation:** [1968] 3 S.C.R. 363
- **Court:** Supreme Court of India
- **Decided:** 1968-03-04
- **Case number:** Civil Appeals Nos. 31 and 32 of 1968
- **Bench:** J. c. SHAH, R. s. BACHAWAT, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1968-3-s-c-r-363-4398
- **Pages:** 4

## Headnote

Mysore State CivU Services General Recruitment Rules, 1951, r, 4(3)
(b)-Promotion to next grade-P1Tsons eligible no/ considered and juniors
in seniorit,v promoted-High Court directs their promotion-Vclldlty.
Rule 4(3)(b) of the Mys0re State Civil Services General Recruitment
Rules, 1957 requires promotion to be made by selection on the basis of
seniority..,um-merit, that is seniority subject to the fitness of the candidate
to discharge the duties of the post from among persons eligible for pro.
molioo.
While making selections for promotions to the posts of .Uor
statistical assistants from the cadre of junior statistical assistants, the State
Governmen did not consider the case of the respondents' who were junior
alatistical assistsnts, and published a list promoting persom ranking below
them in point of seniority. The respondents filed writ petitions, in which
the High Court refused to quash the seniority list but directed the appellantState to promote the respondents as from the dates on which their juniors
were promoted and treat their promotion as effective from that date.
Allowing the appeal, this Court,
HELD : While making sei..ctions for promotion to the posts of senior
statistical assistants ftom the cadre of junior statistical assiatants in 1959,
the State Government was under a duty to consider whether having regard
to their seniority and fitness they should be promoted. The promotions
were irregularly made and they were, therefore, entitled to ask tho State
Government to reconsider their case, In the circumstanceo, tho High Court
could issue a writ to the State Government compelling it to perform its duty
and to t'ODSider whether having regard to their seniority and fitness they
should have been promoted on the relevant dates when officers junior to
them were promoted.
Instead of issuin1: such a writ, the Hiah Court
wrongly issued writs directing the State Govetnment to promote them with
retrospective effect. The High Court ought not to have issued sucli writs
without giving the State ·Government an opportunity in the first insfance
to consider their fitness for promotion in 1959. [365 B-DJ
Promotion to the post of senior statistical assistant was
based on
soniority..,um-merit. In spite of their seniority, offioers junior to them
could he promoted if they were unfit to dischar!I" the duties of th~ post;
Promotion could not be claimed as a matter of right by virtue of seniority
alone. [366 C-D)
··
State of Mysore v. H. M. Bal/ary, [1964) 7 S.C.R. 471, distinguished,
CML APPELLATE JURISDICTION : Civil Appeals Nos. 31 and
32 of 1968.
Appeals by special leave from the judgment and order dated
January 25, 1967 of the Mysore High Court in Writ Petitions
Nos. 774 and 2171 of 1965.
R. H. Dhebar, Shyamala Pappu and S. P. Nayar, for the
appella11ts (in both the appeals).
S. S. Java/I and M. Veerappa for respondent No. - (in both
the appeals).
364
SUPREME COURT REPORTS
[1968] 3 S.CR.

## Text

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STATE OF MYSORE AND ANR.
11.
SYED MAHMOOD AND ORS.
March 4, 1968
[J. c. SHAH, R. s. BACHAWAT AND G. K. MITTER, JJ.]
Mysore State CivU Services General Recruitment Rules, 1951, r, 4(3)
(b)-Promotion to next grade-P1Tsons eligible no/ considered and juniors
in seniorit,v promoted-High Court directs their promotion-Vclldlty.
Rule 4(3)(b) of the Mys0re State Civil Services General Recruitment
Rules, 1957 requires promotion to be made by selection on the basis of
seniority..,um-merit, that is seniority subject to the fitness of the candidate
to discharge the duties of the post from among persons eligible for pro.
molioo.
While making selections for promotions to the posts of .Uor
statistical assistants from the cadre of junior statistical assistants, the State
Governmen did not consider the case of the respondents' who were junior
alatistical assistsnts, and published a list promoting persom ranking below
them in point of seniority. The respondents filed writ petitions, in which
the High Court refused to quash the seniority list but directed the appellantState to promote the respondents as from the dates on which their juniors
were promoted and treat their promotion as effective from that date.
Allowing the appeal, this Court,
HELD : While making sei..ctions for promotion to the posts of senior
statistical assistants ftom the cadre of junior statistical assiatants in 1959,
the State Government was under a duty to consider whether having regard
to their seniority and fitness they should be promoted. The promotions
were irregularly made and they were, therefore, entitled to ask tho State
Government to reconsider their case, In the circumstanceo, tho High Court
could issue a writ to the State Government compelling it to perform its duty
and to t'ODSider whether having regard to their seniority and fitness they
should have been promoted on the relevant dates when officers junior to
them were promoted.
Instead of issuin1: such a writ, the Hiah Court
wrongly issued writs directing the State Govetnment to promote them with
retrospective effect. The High Court ought not to have issued sucli writs
without giving the State ·Government an opportunity in the first insfance
to consider their fitness for promotion in 1959. [365 B-DJ
Promotion to the post of senior statistical assistant was
based on
soniority..,um-merit. In spite of their seniority, offioers junior to them
could he promoted if they were unfit to dischar!I" the duties of th~ post;
Promotion could not be claimed as a matter of right by virtue of seniority
alone. [366 C-D)
··
State of Mysore v. H. M. Bal/ary, [1964) 7 S.C.R. 471, distinguished,
CML APPELLATE JURISDICTION : Civil Appeals Nos. 31 and
32 of 1968.
Appeals by special leave from the judgment and order dated
January 25, 1967 of the Mysore High Court in Writ Petitions
Nos. 774 and 2171 of 1965.
R. H. Dhebar, Shyamala Pappu and S. P. Nayar, for the
appella11ts (in both the appeals).
S. S. Java/I and M. Veerappa for respondent No. - (in both
the appeals).
364
SUPREME COURT REPORTS
[1968] 3 S.CR.
The Judgment of the Court was delivered by
Bachawat, J, On the reorganisation of States on November
I, 1956, the services of Syed Mahmood and Bhao Rao were allotted
to the State of Mysore and they wen~ employed there as junior
statistical assistants. On January 16, 1958 the Head of the
Department of Statistics under the directions of the Government
of State of Mysore prepared a tentative seniority list of nongazetted staff of that department treating junior statistical assistants and senior statistical inspectors of the former State of Hyderabad, junior statistical assistants and senior compilers of the former
State of Mysore, statistical assistants and statistical inspectors
from Bombay and the head compiler of Coorg as holding the
equivalent posts of junior statistical assistants in the State of
Mysore. In 1959, before revising this tentative seniority list the
State Government directed that all the statistical assistants and
statistical inspectors of Bombay State and the head compiler of
Coorg should be treated and promoted as senior statistical assistants.
As a result of this direction officers ranking below Syed
Mahmood and Bhao Rao in the seniority list published on January 16, 1958 were promoted to the higher posts. In making
their promotions, the State Government did not consider the
fitness of Syed Mahmood and Bhao Rao for promotion at all. At
a much later date, they were promoted as senior statistical assistants.
On May 3, 1963, the State Government published a
revised seniority list placing inspectors from Bombay and head
compilers from Coorg in the category of senior statistical assistants. · Syed Mahmood and Bhao Rao filed separate writ petitions in the High Court of Mysore asking for appropriate writs
quashing the seniority list published on May 3, 1963, and direct·
ing the State Government to consider their case for promotion
as senior statistical assistants with retrospective effect.
As the
·Objections to the seniority list published on May 3, 1963 were
still under consideration by the State Government the High Courl
refused to quash this seniority list but it directed the State Government to promote Syed l14ahmood and Bhao Rao as from the
respective dates on which respondents junior to them were promoted as senior statistical assistants and to treat such promotions
as effective up to May 3, 1963. The State of Mysore has filed
the present appeals from the orders directing the promotion of
Syed Mahmood and Bhao Rao after obtaining special leave.
Promotion to the posts of senior statistical assistants is made
from the cadre of junior statistical assistants and progress assis·
tants.
Rule 4(3)(b) of tlie Mysore State Civil Services General
Recruitment Rules, 1957 requires such promotions to be made
by selection on the basis of seniority-cum-merit, that is seniority
subject to the fitness of the candidate to discharge the duties of
the post from among persons eligible for promotion. In 1959 .
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MYSORE v. SYED MAHMOOD (Bachawat, I.)
36&
the seniority of junior statistical assistants was governed by the
seniority list published on January 16, 1958. Syed Mahmood
and Bhao Rao were junior statistical assistants.
While making
selections for promotion to the posts of senior statistical assistants
from the cadre of junior statistical assistants in 1959, the State
Government was under a duty to consider whether having regard
to their seniority and fitness they should be promoted. But.without considering their case at all, the State Government promoted
junior statistical assistants ranking below them in point of seniority.
The promotions were irregularly made and they were,
therefore, entitled to ·ask the State Government to reconsider their
case. In the circumstances, the High Court could issue a writ
to the State Government compelling it to perform its duty and
to consider whether having regard to their seniority and fitness
they should have been promoted on the relevant dates when officers junior to them were promoted. Instead of issuing such a
writ,
the High Court wrongly issued writs directing the State
Government to promote them with retrospective effect. The High
Court ought not to have issued such writs without giving the
State Government an opportunity in the first instance to consider
their fitness for promotion in 1959.
Mr. Javali submitted that Syed Mahmood and Bhao Rao by
virtue of their seniority were entitled to promotion at the time
when persons junior to tliem were promoted. The argument overlooks the fact that promotion to the post of senior statistical assistant was based on seniority-cum-merit. In spite of their seniority
officers junior to them could be promoted if they were unfit to
discharge the duties of the post. Promotion could not be. claimed
as a matter of right by virtue of seniority alone.
Mr. Javali argued that even in the case of promotion based
on seniority-cum-merit, an officer is entitled to promotion by
virtue of seniority alone, and he relied on the decision in State
of Mysore v. H. M. Be/lary('). In that cast, an officer of the
Bombay Government was sent ·on deputation from his parent
department to another department. After long and satisfactory
service and a number of promotions in the new department, he
was reverted to his parent department and was posted in a lower
grade though in the meantime an officer next below him in the
parent department had been promoted to a higher grade.
The
promotion to the higher grade was based on seniority-cum-merit.
The Court held that under r. 50(b) of the Bombay Civil Services
Rules and the circular of the Government of Bombay dated October 31, 1950, an officer on deputation in another department
on reversion to his parent department was entitled to be restored
to the position he would have occupied in his parent department
had he not been deputed. Rule SO(b) treated the service of an
(1) (1964]7 S.C.R. 471.
366
SUPREME COURT REPOJ.TS
[1968] 3 S, C.R.
officer on deputation in the new department as equivalent to
service in the parent department.
As he rendered satisfactory
service and was considered fit for obtiiining increments and promotions in the new department, he should be deemed to be fit
for promotion in the parent department and was entitled to promotion in that department when an officer next below him there
was getting promotion based on seniority-cum-merit. In· official
language, this is the ''next below rule" under which aa officer
on deputation is given a paper promotion and shown as holding a
higher post in the parent department if the officer next below him
there is being promoted. In our opinion, this case is entirely
distinguishable. It decided that under the relevant service rules
the fitness for promotion of an officer on deputation in the uew
department was equivalent to fitness for promotion in the parent
department and the officer was entitled to promotion in the parent
department when the officer next below him there was obtaining
promotion based on seniority-cum-merit. But it is not an authority for the proposition that the officer on deputation is entitled
to promotion in either the new or the parent department as .a
matter of right by virtue of his seniority alone, or that he should
be deemed to be promoted whenever the officer next below him
is being promoted. Where the promotion is based on senioritycum·merit the officer cannot claim promotion as a matter of
right by virtue of his seniority alone.
H he is found unfit to
discharge the duties of the higher post, he may be passed over and
an officer junior to him may be promoted;
We are of the opinion that the State Government should be
directed at this stage to consider the fitness of Syed Mahmood
and Bhao Rao for promotion in 1959. If on such examination
the State Government arbitrarily refuses to promote them, different considerations would arise.
The State Government would
upon such consideration be under a duty to promote them as
from 1959 if they were then fit to discharGe the duties of the
higher post and if it fails to perform itS duty, the Court may
direct it, to promote them as from 1959.
In the result, we allow the appeals and set aside the orders
passed by the High Court. We direct the State Government to
consider whether Syed Mahmood and Bhao Rao should have
been promoted to the posts of senior statistical assistants on the
relevant dates when officers junior to them were promoted, and
if so, what consequential monetary benefits should be allowed
· to them. While granting special leave, this Court directed that
the appellants shall pay the costs of the respondents in any event.
Accordingly, the appellants are directed to pay the costs of these
appeals to the respondents.
One hearing fee.
Y.P.
Appeals allowed.
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