PETITIONER: STATE OF MYSORE Vs. RESPONDENT: C. R. SESHADRI & ORS. DATE OF JUDGMENT10/01/1974 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH CITATION: 1974 AIR 460 1974 SCR (3) 87 1974 SCC (4) 308 ACT: Civil Service--Promotion--Duty of Executive and Courts in relation thereto. HEADNOTE: The respondent came into Class I post. from October 27, 1946. From that day till July 23, 1954, he was Private Secretary to three ministers. Without giving credit for his service as Private Secretary his immediate junior was promoted as Deputy secretary. The respondent field 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 directions for payment of such amounts as he would have got had his due inter se seniorty and promotion been accorded to him. The High Court granted both the In appeal to this Court, HELD : (i) The High Court was right in holding that the respondent was entitled to count his service from October 27, 1946, for fixation of his seniority in the gradation 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 which his junior secured such Promotion and for payment of the excess salary accruing to him on that footing. The power to promote an officer belongs 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 promotion. If the service 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 have to be assessed if length of service is equal, or an outstanding junior is available for promotion. [88F] (3) The appellant State should apply to the respondent the same rule of promotion as was applied to his junior and not to act adversely without giving him an opportunity. Since the respondent had retired from service, the appellant should also consider promptly his claim and make payment to him of what is due to him without further delay. [91A] State of Mysore v. Syed Mahmood, [1968] 3 S. C. R. 363, 366 and State of Mysore v. P. N. Nanjundiah, [1969] 3 S. C. C. 633,637 followed. (4) The appellant's inexplicable indifference is not placing before the Court the relevant 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. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 875 of 1968.
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. Veerappa, for the appellant.
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B.R.L. Iyangar, S.S.Javali and A.G. Ratnaparkhi, for respon-
dent No. 1.
The judgment of the Court was delivered by
KRisHNA IYER, J. The State of Karnataka, appellant before
us, has raised two contentions, the first being the more
material 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 made
Assistant Secretary, and (b) a direction for payment of such
amounts as he would have got had Ms due inter se seniority
and promotion 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 his claim to service since then runnine
continuously, is undeniable. Learned counsel for the
appellant 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 post 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 his service from October 27,
1946 for fixation in the gradation list.
Flowing from this finding is the direction by the High Court
to give the petitioner 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 beyond
the power of the Court. We see the soundness of this sub-
mission. In our constitutional scheme, a broad three-fold
division exists. The power to promote an officer belongs 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 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
order of Government or order reconsideration on correct
principles. What has been done here is in excess of its
jurisdiction. Assuming the petitioner’s seniority over
Venkataraman, how can the Court say that the former would
have been, for certain, promoted ? Basically, it is in
government’s discretionary power, fairly exercised to
promote a government servant. If the rule of promotion is
one of sheer seniority it may well be that promotion is a
matter of course. On the other 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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that by efflux 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 retroactive ,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-merit, 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 enough, 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 aside the second part of the
High Court’s order in the judicial hope that justice will be
done to the petitioner.
The pragmatic limitation on judicial power we have set is
not novel but traditional, as is evident from the two recent
rulings of this Court–both 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(1). Bachawat J.,
speaking for 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 duly, 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 officers junior to them were prom
oted, and
if so, what consequential monetary benefits
should be allowed to them.”
(1) [1968] 3 S.C.R. 363, 366.
90
.lm0
Similarly, in State of Mysore v. P. N.
Nunjundiah(1), Ramaswami, J., speaking for the
Court, dealt with a service dispute and while
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 The 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 proce-
dure 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. 1 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.
1″.
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 Executive to reconsider and doing it on its own,
venturing into an area of surmise 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
(1) [1969] 3 S.C.C. 633, 637.
91
expectation of the superannuated public servant-not unusual
it? 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 Court the 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 directions regarding costs just stated.
Appeal partly allowed.
V.P.S.
92