- (1.) This is an appeal by special leave from a judgment of the Mysore High court giving certain reliefs to the respondent who was in the police service of the State in a petition filed by him under Art. 226 of the Constitution.
(2.) The respondent, G. N. Lingappa, was appointed in the year 1936 as a Sub-Inspector on probation. He was later on confirmed as a permanent Sub-Inspector. In the Gradation list in respect of the cadre of Sub-Inspectors he was assigned the 3rd position. K. S. Ramachandra rao respondent No. 3 was at the 4th position: in other words he was one place below Lingappa. It appears that when a list was prepared for promotion to the post of Inspector of police, Lingappa's name was not included in it. The result was that those junior to him including ramchandra Rao were promoted as Inspectors and later on as Assistant superintendents of Police before he was promoted as Inspector in August, 1942. Lingappa took the matter by appropriate proceedings before the government on 5/01/1955. The government directed that he should be restored to his original place which he occupied above ramchandra Rao in the Gradation List of 1940. In spite of the order that lingappa should be restored to the original position which he occupied above Ramchandra Rao it seems that the latter and certain other persons who were junior to him still continued to occupy the senior posts; for instance Ramchandra Rao had been promoted as Assistant Superintendent of Police in November, 1952 and it was in April, 1955 that Lingappa came to be promoted to that post.
(3.) A number of questions were raised in the writ petition filed by lingappa but the arguments were confined only to the following narrow questions: (l) Whether Lingappa's promotion as Assistant Superintendent of police which was actually made in April, 1955 should be made to relate back to 11/11/1952 when Ramachandra Rao was promoted to the post. (2) Whether Lingappa was not entitled to a higher rank that assigned to respondent No. 11 Billimoria in the inter-State seniority list. The High court considered the order made by the government in January, 1955 and the apparant conflict in that order inasmuch as although Lingappa had been ordered to be restored to his original position certain officers including Ramachandra Rao still continued to occupy senior posts. The high court felt that the only way the two parts of the government order could be reconciled was to take the order to mean that while Ramachandra rao and others who were promoted as Assistant Supdts. of Police were intended to continue in their positions with a higher rank. Lingappa became entitled to the pecuniary advantages flowing from the original seniority. It was pointed out by the Special government pleader who appeared for the State that higher emoluments which would have been earned by Lingappa as Inspector of Police if he had been promoted when ramachandra Rao bad been promoted to that post had been paid to him. On behalf of Lingappa it was stated that higher emoluments had not been paid to the period prior to 11/11/1952. The High court, therefore, made an order in the following terms :- "So the direction that we make is that even with respect to the period-antecedent to November 11, 1952 every pecuniary advantage or benefit which is attributable to the restoration of the original higher rank shall be made available to him to the extent it has not already been made available. We also direct that the higher emoluments which would have been earned by the petitioner if he had been promoted as an Assistant superintendent of Police on 11/11/1952 should bepaid to him now in the post of an Assistant Superintendent of police as long as the petitioner was called by that name and in the post of the Deputy Superintendent of Police after the post used to be called by that designation". On the second question the High court found that respondent Billimoria had been absorbed in the I. P. S. cadre when he was promoted as a superintendent of Police. Lingappa did not belong to that. cadre and had not been absorbed in it. The High court therefore expressed the view that Lingappa could not have any higher right to promotion to the post of Superintendent of police to which only those whose names appeared in the cadre of the 1. P. S. could be promoted. But in spite of this the High court made the following direction in the matter :- "since the matter is not one in respect of which there is common ground it would be enough to direct that if the petitioner could have been promoted to the post of a Superintendent to which a person whose name had not been in the selection list could have been promoted, the petitioner shall be promoted from the date on which one who was junior to him and whose seniority was not, preserved by the 1955 government Order was promoted and when that promotion is made it should be made to relate back to the date when that junior was promoted". The only points which have been pressed before on behalf of the state of Mysore, which is the appellant, are that the High court could not have made the two directions set out above even though it was open to make a declaration that Lingappa was entitled to the benefit and advantages which flowed from the order made by the government that he was to be treated for all purposes as if he occupied the same position which was assigned to hi in the Gradation List of Sub-Inspectors made in the year 1940. But there was no prayer for emoluments being paid to him for the period prior to November 11, 1952 nor could the other direction be made which was purely of a hypothetical nature and related to a situation which might never arise.;