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1969 DIGILAW 78 (KAR)

RAMAMURTHY v. STATE OF MYSORE

1969-08-06

HONNAIH, TUKOL

body1969
( 1 ) THE petitioner who was promoted to the post of a Head Munshi in the court of the Munsiff, on 25-8-1966, has filed this writ petition for a writ of certiorari to' quash the Circular (Exhibit C) dated 29th February 1st march 1968 issued by the Registrar of the High Court and for a writ of mandamus directing the respondents to fix the pay of the petitioner jiving him the benefit of Rule 42-B of the Mysore Civil Services Rules, 1958, as amended from time to time. ( 2 ) THE case of the petitioner is that he entered the service of the mysore Government in the former State of Mysore in the year 1944. It is unnecessary to mention the various departments in which he served prior to the transfer of his services to the Judicial Department with effect from june 1, 1956. The petitioner was promoted as Head Munshi temporarily by the order of the High Court bearing No. R. O. C. 1573/1964 dated 25th august 1966 and posted to' work as Head Munshi in the First Munsiff's court, Bangalore. His contention is that appointment of a First Division clerk as Head Munshi amounts to promotion under the relevant rules and that he is entitled to have his pay fixed in puruance to Rule 42-B of the aforesaid rules. It appears that the Accountant General, Mysore, took the view that the fixation of the pay of an official at the next stage on his promotion as Head Munshi was irregular on the ground that the post of a head Munshi does not involve assumption of higher duties and responsibilities. This view was reiterated in the circular issued by the Registrar at Exhibit 'c'. The petitioner submits that the post of Head Munshi involves duties and responsibilities of higher importance than those of the first Division Clerk and that denial of the benefit of Rule 42-B was arbitrary and illegal. ( 3 ) BEFORE referring to Rule-42-B of the Rules, it is necessary to refer to the Mysore Judicial Services (Class III and Class IV posts) (Recruitment) 'rules, 1960. The schedule to these rules indicates the categories of posts, the method of recruitment, minimum qualifications and period of probation etc. , in columns 1, 2 and 3 respectively. ( 3 ) BEFORE referring to Rule-42-B of the Rules, it is necessary to refer to the Mysore Judicial Services (Class III and Class IV posts) (Recruitment) 'rules, 1960. The schedule to these rules indicates the categories of posts, the method of recruitment, minimum qualifications and period of probation etc. , in columns 1, 2 and 3 respectively. As against the post of head Munshi of Munsiff's Court, it has been shown in column No. 2 that the method of recruitment is "by promotion from a common list of I Dn. Clerks, Head Record-Keepers, Nazirs Gr. I scale Rs. 75-5-90-6-150-10-180 and Translators who are in same grade pay. " It is necessary to mention that this scale df pay has now been revised to Rs. 110-5-150-6"-180-10-220, which is also the scale of pay of First Division Clerk, Translators, Record- keepers etc. According to' the Cadre and Recruitment Rules, the post is undoubtedly one of promotion, though the scale of pay remains unchanged. ( 4 ) THE petitioner has stated in paragraph 15 df his affidavit that the duties and responsibilities of the post of a Head Munshi are of greater importance than those attached to any of the posts in the cadre of First division Clerks. It is obvious from the provisions contained in the Mysore civil Rules of Practice, 1967 that the Head Munshi of a Munsiff's Court is the Chief Ministerial Officer of the Court. It is he who has to receive the plaint and the written statement, examine the pleadings, register them, remain in custody of the documents, sign all processes except the proces- ses df warrants, swearing to affidavits, and discharge all functions which are of a supervisory character. All the officials in that Court in Classes iii and IV are subject to his supervision. Even some of the First Division clerks who would be working in that Court would be subject to his supervisory jurisdiction subject to the over all control of the Presiding Officer. These averments have not been disputed and, in our opinion, cannot be disputed. ( 5 ) IT is against this background that we have to examine the applicability of rule 42-B, as it stood at the date of the petitioner's promotion. These averments have not been disputed and, in our opinion, cannot be disputed. ( 5 ) IT is against this background that we have to examine the applicability of rule 42-B, as it stood at the date of the petitioner's promotion. It reads:-"notwithstanding anything contained in these Rules, where a government servant holding a po'st in a temporary or officiating capacity is promoted or appointed in a temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher po'st shall be fixed at the stage next above the pay drawn in the lower post. "before an official can claim the benefit of this rule, it should "be shown that he is promoted or appointed, whether tempdrarily or in officiating capacity, to another post; it should be further shown that the latter post td which he is appointed or promoted carries duties and responsibilities of greater importance than those attaching to the post from which he is appointed or promoted. If these requirements are satisfied, then,. his initial pay in the higher po'st shall be fixed at the stage next above the pay drawn by him in the lower post. ( 6 ) MR. B. K. Ramachandra Rao, learned Advocate appearing for the State, submits that the post of Head Munshi is not a post of higher responsibility, that even if it is a post of higher responsibility the question has to be determined with reference to Rule 44 of the Rules and that the petitioner had been rightly denied the benefit of Rule 42b of the Rules. We are unable to agree with this contention. It is unnecessary to read rule 44. Because that rule opens with the words " Subject to the provisions of Chapter III a Government servant who is appointed. . . . . . . . . . ". Chapter III contains Rules 31 to 62. In other words, even Rule 42b is a provision contained in Chapter III. Therefore Rule 44 cannot override rule 42b. On the other hand, it is subject to what is contained in Rule 42b. This view is further fortified by the non-obstan^e clause with which Rule 42b opens, viz. , " notwithstanding anything contained in these Rules ". In other words, even Rule 42b is a provision contained in Chapter III. Therefore Rule 44 cannot override rule 42b. On the other hand, it is subject to what is contained in Rule 42b. This view is further fortified by the non-obstan^e clause with which Rule 42b opens, viz. , " notwithstanding anything contained in these Rules ". The effect of the non-o'bstante clause is to indicate that Rule 42b in Chapter iii is not controlled by any other Rule in respect of the matter covered by rule 42b. To say that the question whether a particular post carries duties and responsibilities of greater importance should be construed with reference to what is contained in Rule 44, is tantamount to reading Rule 42b, as being subject to what is contained in Rule 44. Such a construction is inconsistent not only with what is contained in Rule 44 itself, but also with the non-obstante clause with which Rule 42b opens. ( 7 ) FOR these reasons we are of the opinion that the petitioner is clearly entitled to the benefit of Rule 42b and have his pay on the date of promotion fixed at the next stage above the pay that he was drawing as First division Clerk. A direction to that effect shall issue to the respondents. The petitioner shall get his costs from the respondents. Advocate's fee Rs. 100. 00. --- *** --- .