Ayyangar, J. - (1.) A very short question regarding the proper construction of Rule 50 (b) of the Bombay Civil Services Rules is involved in this appeal which comes before us by a certificate of fitness granted by the High Court of Mysore under Art. 133 of the Constitution.
(2.) The facts giving rise to this appeal which are necessary to be narrated to appreciate the only point urged before us were these:The respondent 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. 350-30650 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 was, 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 loss 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 regular promotion. Before, however, final orders were passed on his representations by Government of Bombay, the States Reorganisation Act, 1956 came into form 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 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. 210-13-300. 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 Rule 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 Nadkani.
(3.) The appellant raised a preliminary objection to the writ petition, the objection being that the complaint of the petitioner was not justiciable. This was primarily based upon the fact 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 runs: "It has come to the notice of Government that Government servants when deputed to other Departments or offices often draw pay in time scales which are identical with the time-scales 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 Department under Note 4 below Bombay Civil Service Rules 41. Government is pleased to direct that all such cases should be regulated under Bombay Civil Service Rule 51 and that only that portion 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 the Rule 22 whether in a substantive or officiating capacity, service on deputation and leave other than extraordinary leave count 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 cause beyond the Goverment 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 pendency of these proceedings in the High Court the respondent had retired on account of superannuation and the only question, therefore, was whether he would be entitled to the remuneration to which he would hive been entitled under the rule in question. The appellant-State applied to the High Court 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.;