# STATE OF MYSORE v. C. R. SESHADRI & ORS

- **Citation:** [1974] 3 S.C.R. 87
- **Court:** Supreme Court of India
- **Decided:** 1974-01-10
- **Case number:** Writ Petition No. 2378 of 1965
- **Bench:** V.R. Krishna Iyer, R.S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-mysore-v-c-r-seshadri-ors-6104
- **Pages:** 5

## Headnote

87
Civil Serrice-Promotion-Duty of Executive and Courts ill rt/Mtion thereto.
The respondent came into Class I post from October 2.,, 1946. From that daY
till July 23, 1954, he was Private Secretary to three ministers. Without giving credit
for bis service as Private Secretary his immediate junior was promoted as Deputy
Secretary, The respondent filed a writ petition in the High Court praying that the
order denying him credit for service as Private Secretary may be quashed and for a
direction for payment of such amounts as he would have got had bis due inttr 1;e
seniority and promotion been accorded to him. The High. Court granted both the
reliefs,
Jn appeal to this Court,
HELD : (i) The High Court was right in holding that the respondent '6'as catitlcd to count his service from October 27, 1~6, for fixation of his seniority in the
gradatioo list. •
(2) The High Court, however, erred in directing the appellant to give the respondent notional promotion as Deputy Secretary with effect from the date on whiclt
his junior secured such promotion and for payment of the excess salary accruini
to him on that footing.
The power to promote an officer bClongs 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 proper direction therefore, can only be that the government
should reconsider the case of the respondent afresh for purposes of notional pi:omotion. If the set\licc rule entitles him to promotion on the ground of seniority
alone, Government should, except for the strongest reason, grant the benefit of
promotion with effect from the date when his junior became Deputy Secretary especially, because, nothing had been suggested against the respondent in his career
to disentitle him to promotion. However, if the criterion for promotion is one of
seniority-cum-merit comparative merit may ha,•e to be assessed if length of service
is equal, or an outstandmg junior is available for promotion. [88F)
(3) The appellant State should apply to the respondent the same rule of pro·
motion as was applied to his junior and not to act adversely without giving him u
opportunity. Since the respondent had retired from service, the appellant shoultl ·
a1so consider promptly bis claim and make payment to hint of what is due to hi.a
without further delay. [91A]
Stace of Mysore v. Syed Malunood, [1968) 3 S. C.R. 363, 366 and State nf MysDl't
v. P. N. Nanjlllldiah, [1969] 3 S. C. C. 633,637 followed.
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(4) The appellant's inexplicable indifference is not placing before the Court the
relC\'ant rule regarding Promotion to the post of Deputy Secretary merits the order
that the appellant should pay the costs of the respondent even though the appeal
is partly allowed.
CIVIL
APPELLATE
JURISDICTION
of 1968.
Civil Appeal No. 175
H
From the judgment and order dated the 28th July 1967 of the
Mysore High Court at Bangalore in Writ Petition No. 2378 of 1965.
V.S .. Desai and M. Vurappa, for the appellant.
88
SUPREME COURT REPORTS
[1974] 3 S.C.R.
B.R.L. Jyangar, S.S. Javali and A.G. Ratnaparkhi, for respondent No. J.

## Text

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STATE OF MYSORE
v.
C. R. SESHADRI & ORS.
January 10, 1974
(V.R. KRISHNA IYER AND R.S. SARKARIA, JJ.]
87
Civil Serrice-Promotion-Duty of Executive and Courts ill rt/Mtion thereto.
The respondent came into Class I post from October 2.,, 1946. From that daY
till July 23, 1954, he was Private Secretary to three ministers. Without giving credit
for bis service as Private Secretary his immediate junior was promoted as Deputy
Secretary, The respondent filed a writ petition in the High Court praying that the
order denying him credit for service as Private Secretary may be quashed and for a
direction for payment of such amounts as he would have got had bis due inttr 1;e
seniority and promotion been accorded to him. The High. Court granted both the
reliefs,
Jn appeal to this Court,
HELD : (i) The High Court was right in holding that the respondent '6'as catitlcd to count his service from October 27, 1~6, for fixation of his seniority in the
gradatioo list. •
(2) The High Court, however, erred in directing the appellant to give the respondent notional promotion as Deputy Secretary with effect from the date on whiclt
his junior secured such promotion and for payment of the excess salary accruini
to him on that footing.
The power to promote an officer bClongs 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 proper direction therefore, can only be that the government
should reconsider the case of the respondent afresh for purposes of notional pi:omotion. If the set\licc rule entitles him to promotion on the ground of seniority
alone, Government should, except for the strongest reason, grant the benefit of
promotion with effect from the date when his junior became Deputy Secretary especially, because, nothing had been suggested against the respondent in his career
to disentitle him to promotion. However, if the criterion for promotion is one of
seniority-cum-merit comparative merit may ha,•e to be assessed if length of service
is equal, or an outstandmg junior is available for promotion. [88F)
(3) The appellant State should apply to the respondent the same rule of pro·
motion as was applied to his junior and not to act adversely without giving him u
opportunity. Since the respondent had retired from service, the appellant shoultl ·
a1so consider promptly bis claim and make payment to hint of what is due to hi.a
without further delay. [91A]
Stace of Mysore v. Syed Malunood, [1968) 3 S. C.R. 363, 366 and State nf MysDl't
v. P. N. Nanjlllldiah, [1969] 3 S. C. C. 633,637 followed.
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(4) The appellant's inexplicable indifference is not placing before the Court the
relC\'ant rule regarding Promotion to the post of Deputy Secretary merits the order
that the appellant should pay the costs of the respondent even though the appeal
is partly allowed.
CIVIL
APPELLATE
JURISDICTION
of 1968.
Civil Appeal No. 175
H
From the judgment and order dated the 28th July 1967 of the
Mysore High Court at Bangalore in Writ Petition No. 2378 of 1965.
V.S .. Desai and M. Vurappa, for the appellant.
88
SUPREME COURT REPORTS
[1974] 3 S.C.R.
B.R.L. Jyangar, S.S. Javali and A.G. Ratnaparkhi, for respondent No. J.
The Judgment of the Court was delivered by
KRISHNA IYER, J. The State of Karnataka, appellant bcforo
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ns
has
raised two contentions,
the first being
the
more
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m~terial 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 n1ade
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Assistant Secretary, and (b) a direction for payment of such amounts
as he would have got had his due inter se seniority and promolio11
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 hi.s claim to service since then running continuously, is undeniable. Learned counsel for the appellant
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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 past 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 count hh serE
vice from October 27, 1946 for fixation in the gradntion list.
Flowing from this finding is the direction by the High Court
to give the p•titioner notional promotion as Deputy Secretary with
effect from the date on which one P. 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
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beyond the power of the Court. We see the soundness of this submission. In our constitutional scheme, a broad three-fold division
exists. The power to promote an officer belongs 10 the Executive and
the judicial po\ver 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
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order of Government or order reconsideration on correct principles.
What has been done here is in excess of its jurisdiction. Assuming the
p.!titioner's seniority over Venk.ataraman, how can the Court sav that
the former would have been, for certain, promoted ? Basica1!);. it is
in governn1ent's discretionary power, fairly exercised to pro1note
a government servant. If the rule of promotion is one of sheer senio~
rity it may well be that promotion is a matter of course. On the other
11
hand if seniority-cum-merit is the rule, as in the Supreme Court decisions cited before us, promotion is problematical. In the absence of
positive proof of the relevant service rules, it is hazardous to assume
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MYSORE V. C. R. SESHADRI (KRISHKA IYER, J.)
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that by effiux of time the petitioner would have spiralled up to Deputy
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 retro-active
promotion and back pay? The frontiers of judicial power cannot
be stretched thus for. 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 carrier 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-rneriti 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.
Counsel for,the State made reasonable efforts to help the Court
with the relevant rule but his client's cooperation 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 enougl1,
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 aoide the second part of the High Court's order in the judicial hope
that justice wi\\ be done to the petitioner.
1,
The pragmatic limitation on judicial power we have set is not novel
but traditional, as is evident from the two recent rulings of this Courtboth rendered in appeals from the Mysore High Court-where probably
judicial promotion of executive officers was perhaps not viewed as
an avoidable encroachment.
In State of Mysore v. Syed Mahmood(!). Bachawat J., speaking
Jor the Court, held in a case where the promotion of an officer -was
involved that the proper direction should be that the State Government
should "consider the fitness of Syed Mahmood and Bhao Rao for
promotion in 1959 .... 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."
The Court concluded in that case thus :
"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 of!i,-crs junior to them were promoted, and
if so, what ~nsequential monetary benefits should he allowed
to thCnl\"
'(iJ [1968)3 S.C.R. 3~. 366.
90
SUPREME COURT REPORTS
119741 3 S.C.R.
Similarly, in State of Mysore v. P. N. Nunjundioh(I), Ramaswami,
J., speaking for the Court, dealt with a service dispute and wbilc
agreeing with the substantive conclusion of the High Court_modified
the order in so far as the promotion was ordered by the Court. The
learned Judge observed :
"The argument. was stressed on behalf of the appellants
that in any event the High Court was not right in issuing a
writ of mandamus "directing the appellants to promote res·
pondent No. 1 as Overseer with effect from February 1, 1961 and
as Supervisor with effect from April 1, 1963 and to give him
all consequential benefits. In our opinion there is justification
for this argument. It has been pointed out by this Court in
Tire State of Mysore v. Syed Mahmood and others (supra)
that in matters of this description the High Court ought not
to issue writs directing the State Government to promote the
aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether
having regard to his seniority and fitness the 1st respondent
should have been promoted on the relevant date and so what consequential
benefits should be allowed to him. In the
present case we are informed that both respondent No. I
and respondent No. 2 have been promoted as Overseers after
the filing of the writ petition. In the circumstances we consider that proper course is to issue a direction to the appellants to
consider whether the respondent No. 1 should have been promoted to the post of Overseer with effect from December 1,
1961 and as a Supervisor with effect from April 1, 1963, what
should be the relative seniority as between respondent No: 1
and respondent No. 2 and what consequential benefits should
be allowed to respondent No. I".
We respectfully agree with the guideline furnished by these two decisions which fortify the view we have taken.
While we agree that the High Court has been impelled by a right
judicial instinct to undo injustice to an individual, we feel that a finer
perception of the limits of judicial review would have forbidden it
from going beyond directing the Jlxecutive to reconsider and doing
it on its own, venturing into an area of sunnisc and speculation in regard
. to the possibilities of escalation in service of the appellant. Judicial
expansionism, like allowing the judicial sword to rust in its armoury
where it needs to be used, can upset the constitutional symmetry and
damage the constitutional design of our founding document.
The length of this litigation has really disappointed the petitioner
by denying him the enjoyment of likely promotion. He retired the
day before the judgment of the High Court. No one in service would
be affected by the allowance 'of the petitioner's claim and what was
a service issue has now been reduced. to one of money payment. A
retired government official is sensitive to delay in drawing monetary
benefits. And to avoid posthumous satisfaction of the pecuniary
(l) [196913 s.c.c. 633, 637.
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MYSORE v .. C. R. SESHADRI (KRISHNA !Yl!I\, J.)
91
expectation of the superannuated public servant-not unusual ill'
government-we direct the appellant to consider promptly the claim
of the petitioner in the light of our directions and make payment of
what is his due-if so found-on or before April 15, 1974. The·
government's inexplicable indifference in not placing before the Cour~
(he relevant rule regarding promotion to the post of Deputy
Secretary merits the order that the appellant pay the costs of the
petitioner/ first respondent ; for, the wages of winner's sloth is denial
of costs, and something more.
In the result the appeal fails in the first part and is allowed in the
latter part on the lines indicated above and subject to the direction&
regarding costs just stated.
·
Apptal partly aUowtd:-
V.P.S.