# STATE OF MYSORE v. M. H. BELLARY

- **Citation:** [1964] 7 S.C.R. 471
- **Court:** Supreme Court of India
- **Decided:** 1961-03-31
- **Case number:** Civil Appeal No. 677 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-mysore-v-m-h-bellary-3152
- **Pages:** 6

## Headnote

7 S.C.R.
SUPREME COURT REPORTS
471
STATE OF MYSORE
v.
M. H. BELLARY
IP. B. GAJENDRAGADKAR. C.J .• K. N. WANCHOO, J. c. SHAH,
N. RAJAGOPALA AYYANGAR AND S. M. SIKRI, JJ.J
Bombay Civil Service Rules-Government Servant of one
department sent on deputation to another department-On reversion entitled to the promotions based on merit-cum seniority
basis in the parent department-Breach of Statutory Rule
under Art. 309 gives rise to cause of action-Constituticn of
India, Art. 309, 313-Bombay Civil Service Rules, R. 50(b).
The respondent was a Government servant in one of the
departments of the Bombay Go\'ernment. He was sent on
, ~eoutation to another department and after serving there for
a long period and getting a number of promotions he was reverted back to his parent department and ordered to be posted
at. > considerably lower grade,
while
another
Government
servant who was below his rank was promot·ed as Assistant
Secretary. Thereupon the respondent file".! a petition under
Art. 226 of the Constitution challenging the order of his posting. A preliminary objection was raised by the appellant that
the petition was not maintainable. But the High Court held
that the respondent was entitled to invoke the jurisdiction
of the Court when there is a violation of a statutory rule and
on merits it held that the respondent was entitled to the relief claimed. The present appeal was filed on a certificate
granted by the High Court under Art. 133 of the Constitution.
Before this Court in view of the decision State of UP. v.
Babu Ram Upadhya. [1961] 2 S.C.R. 679 it was not disputed
that if there was a breach of a statutory rule framed under
Art. 309 or continued under Art. 313 in relation to the condition of service the aggrieved GoV'ernment servant could have
recourse to the Court.
The main contention on behalf of the appellant was that
the respondent was not entitled to be appointed to any
higher post than as a Senior Assistant or to receive a salary
·higher than that which had been granted to him bv the impugned order.
·
Held: (i) Assuming that this was a case where the respondent had a lien and his lien had not been suspended it was
not possible to interpret Rule 50(b) of the Bombay Civil Service Rules as providing different criteria to cases where a
Government servant had a lien and where his lien has been
suspended.
The Rule and the circular make it abundantly clear that
an officer on deputation in another department shall be restored to the position he would have occupied in his parent
department had he not been deputed.
(ii\. Where promotions are based on seniority-cum-merit
basis an officer on deputation has a legal right to claim promotion to a higher post in his parent department provided his
service in the department to which he is lent is satisfactory.
This may not be the case in regard to selection posts.
1964
March25
472
SUPREME COURT REPORTS
[1964)
1964
State of My801't

## Text

7 S.C.R.
SUPREME COURT REPORTS
471
STATE OF MYSORE
v.
M. H. BELLARY
IP. B. GAJENDRAGADKAR. C.J .• K. N. WANCHOO, J. c. SHAH,
N. RAJAGOPALA AYYANGAR AND S. M. SIKRI, JJ.J
Bombay Civil Service Rules-Government Servant of one
department sent on deputation to another department-On reversion entitled to the promotions based on merit-cum seniority
basis in the parent department-Breach of Statutory Rule
under Art. 309 gives rise to cause of action-Constituticn of
India, Art. 309, 313-Bombay Civil Service Rules, R. 50(b).
The respondent was a Government servant in one of the
departments of the Bombay Go\'ernment. He was sent on
, ~eoutation to another department and after serving there for
a long period and getting a number of promotions he was reverted back to his parent department and ordered to be posted
at. > considerably lower grade,
while
another
Government
servant who was below his rank was promot·ed as Assistant
Secretary. Thereupon the respondent file".! a petition under
Art. 226 of the Constitution challenging the order of his posting. A preliminary objection was raised by the appellant that
the petition was not maintainable. But the High Court held
that the respondent was entitled to invoke the jurisdiction
of the Court when there is a violation of a statutory rule and
on merits it held that the respondent was entitled to the relief claimed. The present appeal was filed on a certificate
granted by the High Court under Art. 133 of the Constitution.
Before this Court in view of the decision State of UP. v.
Babu Ram Upadhya. [1961] 2 S.C.R. 679 it was not disputed
that if there was a breach of a statutory rule framed under
Art. 309 or continued under Art. 313 in relation to the condition of service the aggrieved GoV'ernment servant could have
recourse to the Court.
The main contention on behalf of the appellant was that
the respondent was not entitled to be appointed to any
higher post than as a Senior Assistant or to receive a salary
·higher than that which had been granted to him bv the impugned order.
·
Held: (i) Assuming that this was a case where the respondent had a lien and his lien had not been suspended it was
not possible to interpret Rule 50(b) of the Bombay Civil Service Rules as providing different criteria to cases where a
Government servant had a lien and where his lien has been
suspended.
The Rule and the circular make it abundantly clear that
an officer on deputation in another department shall be restored to the position he would have occupied in his parent
department had he not been deputed.
(ii\. Where promotions are based on seniority-cum-merit
basis an officer on deputation has a legal right to claim promotion to a higher post in his parent department provided his
service in the department to which he is lent is satisfactory.
This may not be the case in regard to selection posts.
1964
March25
472
SUPREME COURT REPORTS
[1964)
1964
State of My801't
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 677
of 1963. Appeal from the judgment and order dated March
31, 1961 of the Mysore High Court in Writ Petition No. 283
of 1959.
v.
M.H. Bellary
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant
S. V. Venkataranga Iyengar, M. Rama Jois and A. G.
Ratnaparkhi, for the respondent.
March 25, 1964. The judgment of the· Court was
delivered by
.AyyafllJM,
J.
AYYANGAR, J.-A very short question regarding the proper construction of Rule 50(b) of the Bombay Civil Services
Ruks is involved in this appeal which comes before us by
a certificate of fitness granted by the High Court of Mysore
und~r Art. 133 of the Constitution.
'
The facts giving rise to this appeal which are necessary
to be narrated to appreciate the only point urged before us
weri: these: The resporn;lent was recruited as an Upper
Division Clerk by the Government of Bombay ,in .1931 and
was later appointed substantively as a Junior Assistant in
the Political Department. While so, on September 17, .1943
his services were transferred on deputation to the office of
the Controller of Rationing,. Bombay to work as a Senior
Assistant in the newly started Rationing department which
was a temporary department. He obtained successive promotions in this department and by March, 1954 he was drawing a pay of Rs. 460/- p.m. in the grade Rs. 350-30-650 as
Rationing Officer. That department was abolished in March,
1954 and thereafter he was reverted to his parent department. Though his parent department was the Political Department, the respondent wa:;, after he ceased to be a Rationing Officer, posted first to the Labour Department and then
to the Public Works Department. When this reversion took
place his pay was fixed at Rs. 120/- p.m. The petitioner
protested against this reversion and this Joss of his emoluments on the ground that this fixation of pay was contrary
to the Rules framed by Government in regard to the service
Conditions of a Government servant who was appointed on
deputation in another department. He also pointed out that
the officer next below him in his parent department had been
appointed as an Assistant Secretary by virtue of normal and
re~ular promotion. Before. however. final orders were passed. on his representation by the Government of Bombay,
the States Reorganisation Act, 1956 came into force and the
respondent was allotted to the State of Mysore. On November 27, 1958 the Government of Mysore informed the respondent through an official memorandum that in view of
78.C.R.
SUPREME COURT REPORTS
473
certain communications received by that Government from
the Government of Bombay· in answer to his representations
he should be considered to have held the post of Senior
Assistant on June 1, 1954 on a salary of Rs. 225/- in the
grade Rs. 210-15-300. The petitioner's complaint, however,
was that even this order was in violation of the conditions of
his service and he claimed that when he was reverted to
the parent department he was entitled to be posted as an
Assistant Secretary-a post which according to him, he
would have held on that date had he not been deputed to
the department of Civil Supplies on September 17, 1943.
There was no dispute that subject to an argument to which
we shall refer presently, the respondent would have held
the post of Assistant Secretary because the person next below him-one Nadkarni-actually held that post on that
day. The respondent claimed that on the basis of the Service Rules to which we shall immediately make reference
he should, on his return to the parent department, have been
posted as an Assistant Secretary and been allowed the scale
of emoluments applicable to that post. As the Government
of Mysore refused to accede to his demand the respondent
filed a petition under Art. 226 for inter alia a writ of mandamus directing the appellant-State to include the petitioner
in the grade-pay of an Assistant Secretary and fix him above
Nadkarni.
The appellant raised a preliminary objection to the writ
petition, the objection being that the complaint of the peti·
tioner was not justiciable. This was primarily based upon thefact that the respondent relied upon a circular of the Government of Bombay dated October- 31, 1950 in support of his
plea that he was entitled to the benefit that he claimed on reversion to the parent department from his service on deputation.
The material part of that circular ran:
"It has come to the notice of Government that
Government
~ervants when deputed to o.ther
Departments or offices often draw pay in
time scales which are identical with the timescales in their parent Departments. The question·
therefore, arises on their reversion to their parent
Department whether the service rendered in an
identical time scale in the Department to which
their service had been lent, should be allowed
to count for increments in the parent Depart~
ment under' Note 4 below Bombay Civil .Service
Rule 4 I. Government is pleased to direct that
all such cases should be regulated under Bombay
Civil Service Rule 51 and that only that ·portion
1964
Btatt of Myaore
v.
M.H. Bellarg
Ayyangar,
J.
1964
Suite of ... lf ysore
v.
M.H.
Bellary
Ayyangar, J.
474
SUPREME COURT REPORTS
[1964]
of service in the foreign Department or office
should be allowed to count for increments in the
parent Department during which 'the person concerned would have drawn pay in the time scale
applicable to the post he holds on reversion, but
for his deputation to another Department or
office, i.e., the case should be so regulated as to
restore the position the person concerned would
have occupied in his parent Department had he
not been deputed."
The question as to whether this circular which was treated as an administrative instruction could confer rights enforceable in a court on a Government servant was referred
to a Full Bench for its opinion. Before the learned Judges
of the Full Bench the learned Advocate-General, however,
brought to the notice of the Court that this circular merely
gave effect to a statutory rule framed by the Government. of
Bombay. The relevant rule in this respect was rule 50(b)' of
the Bombay Civil Services Rules which ran:
"50(b) Service in another post, other than a post carrying less pay referred to in clause (a) of rule 22
whether in a substantive or officiating capacity,
service on deputation and leave other than extraordinary leave counts for increments in the time
scale applicable to the post on which the Government servant holds a lien as well as in time scale
applicable to the post or posts. if any, on
which he would hold a lien had his lien not been
suspended:
Provided that Government may, in any case in which
they are satisfied that the leave was taken on
account of illness or for any other came beyond
the Government servant's control, direct that
extraordinary leave shall be counted for increment under this clause."
The position, therefore, that emerged after this was whether
an infraction of a statutory rule could give rise to a cause of
action to an aggrieved Government servant. The learned
Judges answered this question in the affirmative and thereafter the Division Bench which heard the petition allowed
the writ and granted the respondent the relief that he sought.
It might be mentioned that even by the date of the pendency
of these proceedings in the High Court the respond.en! had
retired on account of superannuation and the only question,
therefore, was whether he would be entitled to the remuneration to which he would have been entitled under the rule
in question. The appellant-State applied to the High Court
<
78.C.R.
SUPREME COURT REPORTS
475
for a certificate to enable an appeal to be filed to this Court.
and on this having been granted the appeal is now before
us.
In view of the decisions of this Court of which it is
sufficient to refer to State of U.P. v. Babu Ram U padhya(')
it was not disputed that if there was a breach of a statutory
rule framed under Art. 309 or which was continued under
Art. 313 in relation to the clonditions of service the aggrieved Government servant could have recourse to the Court
for redress.
Learned Counsel for the Appellant, however, urged two
contentions in support of the stand that the respondent was
not entitled to be appointed to any higher post than as a
Senior Assistant or to receive a salary higher than Rs. 225 /-
. in the scale Rs. 210-15-300 which had been granted to him
by the impugned order of November, 1958. The first was
that on a proper construction of Rule 50(b), an officer who
after serving on deputation in another department is revert'
ed to his parent department is entitl.ed to nothing more than
the increments allowable in the time scale applicable to the
substantive appointment which he held at the time of the
transfer. In this connection stress was laid on the words
"increments in the time scale applicable to the post on which
the Government servant holds a lien" occurring in the subrule. We are unable to accept this contention. In the first
place, it is not clear whether the case of the respondent was
one where he held a lien or one where the lien was suspended, and no material was placed before the Court in this regard, the point .in this form not being urged in the High
Court. But even assuming that it was a case where the respondent had a lien and his lien had not been suspended it
is difficult to see what logic there could be in interpreting
the rule as providing different criteria in the two cases.
Where the lien is suspended the rule speaks of the "post
or posts, if any he would !).ave held if his lien had not been
1'Uspended". By the use of the plural, it is clear that the rule
<:ontemplated the suspended lien being transferred from one
post to another-in other words, to a promotion from one
post to another during the period of the service in another
department. If there was any ambiguity in what the rule
meant it is wholly dispelled by reference to the circular
which ensures to the officer on deputation in another department that he shall be restored to the position he "would
have occupied in his parent department had he not been deputed". It was not suggested that there was any ambiguity
in the wording of this circular which, in our opinion, gives
proper effect to the provisions of Rule 50(b) ..
('l [1961] 2 S.C.R. 679.
1964
State of My-~ore
•.
M. H. Bellary
Ayya'tll}ar, J,
. 1964
Stale of JrJy.sore
v.
M. H. Bella1y
Ayyan3ar, J.
476
SUPREME COURT REPORTS
(1964)
The other submission of learned Counsel was tnat a
Government servant though he had a right to increments in
a time scale applicable to the post that he held on the date
of his transfer on deputation and on which he had a lien,
had no legal right to be promoted to a higher post and that
the construction adopted by the High Court virtually conceded or guaranteed to officers on deputation· a right to an
automatic promotion which they would not have had if they
had not been posted on deputation. We see no force in this
cont,!ntion either. Learned Counsel is right only in so far
as the promotion involved relates to a selection post. But
where it is based on seniority-cum-merit, those considerations
are not relevant. The servir,e of an officer on deputation
in another department is treated by the rule as equivalent to
service in the parent department and it is this equation between the services in the two departments that forms the
basis of Rule 50(b). So long therefore as the service of the
employee in the new department is satisfactory and he is
obtaining the increments and promotions in that department.
it sl:ands to reason that that satisfactory service and the manner
of '.ts discharge in the post he actually fills, should be deemed
to be rendered in the parent. department also so as to entitle
him to · promotions, which are often on seniority-cummerit basis. What is indicated here is precisely what is termed
in official language the "next below rule" under which an
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. If there are
adverse remarks against him in the new department or punishm!nts inflicted on him there, different considera.tions would.
arise and these adverse remarks etc. would and could certainly
be taken into account in the parent department also,
but that is not the position here. In view. of the facts of the
cast.> ii is not necessary to discuss this aspect in any detail or
any further.
The appeal fails and is dismissed with costs.
Appeal dismissed.