P. S. RAO v. UNION GOVERNMENT — 1972 DIGILAW 77 (KAR)

MALIMATH, J. ( 1 ) DR. P. S. RAO, the petitioner in this Writ Petition, holds the post of the Head of Utilisation Research, Forest Research Laboratory, Bangalore under the Union Government. Though differently worded, the prayer of the petitioner is for a direction to respondent No. 1, the Union government, to promote him to the post of Director of Biological Research with effect from 15-7-1964, the date from which Dr. A. Pumshotham respondent No. 2 was appointed to the post of Director of Biological research in the Forest Research Institute and College, Dehra Dun, if necessary, amending the Forest Research Institute and Colleges (Class I and II non-tenure posts) Recruitment Rules, 1966, framed by the President in exercise of his powers under the proviso to Art. 309 of the Constitution of India. ( 2 ) THE petitioner joined service as a Class II officer in the Chemistry and Minor Forest Products Branch of the Forest Research Institute and colleges, Dehra Dun (hereafter referred to as the Institute) in March, 1945. It is not disputed that respondent No. 2 was appointed to a similar post earlier than the petitioner. In the year 1960, the petitioner and respondent no. 2 were holding the post of Senior Research Officers in the Selection grade at the Institute at Dehra Dun. It is not disputed that respondent no. 2 was senior to the petitioner in the cadre of Senior Research officers in the Selection Grade. ( 3 ) IN the year 1960, the post of Chief Research Officer at the Forest laboratory, Bangalore was advertised for being filleld up, through the union Public Service Commission by direct recruitment. The petitioner was selected and appointed to the said post in the scale of Rs. 1000-1400 with effect from 30th November, 1960. The post of Chief Research Officer at the Forest Research Laboratory, Bangalore was re-designated as the post of the Head of Utilisation Research by the order of the Government of India dt. 9th July, 1963. The scale of pay attached to the said post was also subsequently revised to the scale of Rs. 1300-60-1600. The petitioner continues to hold the said post till today. ( 4 ) ON the 25th of July, 1961, respondent No. 2 was promoted to the post of Chief Research Officer at the Institute at Dehra Dun in the pay scale of Rs. 1300-60-1600. 1300-60-1600. The petitioner continues to hold the said post till today. ( 4 ) ON the 25th of July, 1961, respondent No. 2 was promoted to the post of Chief Research Officer at the Institute at Dehra Dun in the pay scale of Rs. 1300-60-1600. Respondent No. 3 was similarly promoted on 15th July, 1963. The Union Government, by its order dt. 9th July, 1963, re-designated the 7 permanent posts of Chief Research Officers (Rs. 1300- 60-1600) as Senior Research Officers in the Selection Grade in the Scale of rs. 1300-60-1600. Thereafter respondent No. 2 who was holding the post of Senior Research Officer in the Selection Grade at the Institute at Dehra dun was appointed as Director of Biological Research in addition to his own duties, with effect from 15th July, 1964 by the order of the Union government dt. 7th September, 1964. ( 5 ) THE principal grievance of the petitioner is that respondent No. 2 is junior to him and that therefore his 'promotion', without considering the case of the petitioner, is violative of Art. 16 of the Constitution of India. ( 6 ) SRI B. Ramachandra Rao learned Counsel appearing for the Union government, raised a preliminary objection regarding maintainability of the writ petition in this Court. His contention is that this Court has no jurisdiction to entertain the writ petition for issuing any direction to the union Government, as the cause of action has not arisen wholly or in part within the territory in relation to which this High Court exercises jurisdiction. Clause (1a) was added to Art. 226 of the Constitution by the Constitution (Fifteenth Amendment) Act, 1963 with effect from 6th October, 1963. The object of the amendment is to confer jurisdiction on the High courts within whose territory the cause of action arises wholly or in part to entertain petitions under Art. 226 of the Constitution against the Union of India or any other body located outside its territorial jurisdiction. The object of the amendment is to confer jurisdiction on the High courts within whose territory the cause of action arises wholly or in part to entertain petitions under Art. 226 of the Constitution against the Union of India or any other body located outside its territorial jurisdiction. It is clear from clause (1a) of Art. 226 of the Constitution that if the cause of action wholly or in part arises within the territory in respect of which the high Court exercises jurisdiction, the said High Court can exercise powers conferred by clause (1) of Art. 226, notwithstanding that the seat of the government or authority or the residence of the person is not within the territory in respect of which the High Court exercises jurisdiction. ( 7 ) THE only question for consideration, therefore, is as to whether the cause of action has arisen wholly or in part within the territory in respect of which this High Court exercises jurisdiction. ( 8 ) THE expression 'cause of action' haa not been defined in the Constitution. The same expression occurs in clause (c) of S. 20 of the CPC. Though the said expression has not been denned in the Code of Civil Procedure, the meaning to be given to the said expression is well settled by judicial pronouncements in the country. 'cause of action' means a bundle of essential facts, which it is necessary for the party seeking relief to prove if traversed by the opposite party, in order to secure the relief prayed for. Therefore, if the petitioner is able to show that at least one of such essential facts required to be proved to secure an order in his favour has arisen within the territory of this Court, this Court will have jurisdiction to entertain the writ petition. ( 9 ) THE case of the petitioner is that the Union Government was not competent to promote respondent No. 2 without considering the case of the petitioner who holds the post of Head of Utilisation Research at the forest Research Laboratory, Bangalore. The very basis for claiming relief in the writ petition is that the petitioner is the holder of the aforesaid post in Bangalore. If this fact was controverted by the respondents, the petitioner would have been required to prove that fact in order to secure the relief prayed for. The very basis for claiming relief in the writ petition is that the petitioner is the holder of the aforesaid post in Bangalore. If this fact was controverted by the respondents, the petitioner would have been required to prove that fact in order to secure the relief prayed for. If the petitioner fails to establish the fact that at the relevant time he was holding the above mentioned post at Bangalore, he will not be entitled to any relief in this writ petition. It is therefore, clear that the holding of the post of Head of Utilisation Research at the forest Research Laboratory, Bangalore is an essential fact, which the petitioner is required to prove in order to secure relief in the writ petition. It is clear that the cause of action has partly arisen within the territory in respect of which this High Court exercises jurisdiction. We, therefore, overrule the preliminary objection raised by Sri Ramachandra Rao and hold that this Court has jurisdiction to entertain this writ petition. ( 10 ) AS rgeards the merits of HIP case, the principal contention of sri S. K. Venkataranga Iyengar, laerned Counsel for the petitioner, is that the 'promotion' of Respt. No. 2 to the post of Director of Biological Research at the Institute at Dehra Dun is violative of Art. 16 of the Constitution, on the ground that the case of the petitioner who is senior to respondent-2 was not considered by the Union Government on the footing that the holder of the post of Head of Utilisation Research at the Forest Research laboratory, Bangalore is not entitled to be considered for promotion to the post of Director of Biological Research. It may be stated that the holder of the post of Director of Biological Research gets an additional amount of Rs. 100 per month in addition to the pay in the scale of Rs. 1300-60-1600. As already mentioned, the scale of pay of the post held by the petitioner is also Rs. 1300-60-1600. It may be stated that the holder of the post of Director of Biological Research gets an additional amount of Rs. 100 per month in addition to the pay in the scale of Rs. 1300-60-1600. As already mentioned, the scale of pay of the post held by the petitioner is also Rs. 1300-60-1600. ( 11 ) IN the counter-affidavit filed on behalf of the Union Government, it is stated that the holder of the post of Head of Utilisation research, Forest Research Laboratory, Bangalore is not entitled to be considered for appointment to the post of Director of Biological Research at the Institute at Dehra Dun as the only persons who can be considered for appointment to the post of Director of Biological Research are those holding the seven posts of Senior Research Officers in the Selection Grade at the Institute at Dehra Dun. As the petitioner was not holding the post of Senior Research Officer in the Selection Grade, it is stated that the petitioner was not considered for appointment to the post of Director of biological Research. As reliance was placed in the counter-affidavit filed on behalf of the Union Government on an order passed by the Unoin. Government dt. 9th July, 1963 and as the said order was not produced along with the counter-affidavit, we requested Sri Ramachandra Rao appearing for the Union Government to make available a copy of the said order. ( 12 ) THE relevant portion of the order contained in the letter addressed by Sri V. D. Gangal, Deputy Secretary to the Government of India to the President, Forest Research Institute and Colleges, Dehra Dun is extracted below. ". . . . . . . . . . . . . . . As a result of further re-organisation, the President has been pleased to decide as follows : (i) The seven permanent posts of Chief Research Officer (Rs. 1300- 60-1600) are abolished and replaced by an equal number of permanent posts of Senior Research Officer in the Selection Grade of Rs. 1300- 60-1600. (ii) The seven posts of Senior Research Officer in the Selection grade sanctioned vide (1) above, will be filled, subject to the provisions of the recruitment rules prescribed for such appointment, by senior Research Officers (in the Senior Class I Scale) who hold scientific and technical posts at the Institute and distinct from Forest officers. 1300- 60-1600. (ii) The seven posts of Senior Research Officer in the Selection grade sanctioned vide (1) above, will be filled, subject to the provisions of the recruitment rules prescribed for such appointment, by senior Research Officers (in the Senior Class I Scale) who hold scientific and technical posts at the Institute and distinct from Forest officers. (iii) Of the seven selection grade posts of Senor Research Officer, one wll be designated as Director of Forest Products Research and one as Director of Biological Research. The Director of Forest Products research and the Director of Biological Research will be granted a special pay of Rs. 100 p. m. (Rupees one hundred only per mnnth) over and above their grade pay with effect from the date of issue of this letter. ****** (x) The post of Chief Research Officer, Forest Research Laboratory, research will be redesignated as Head of Utilisation Research forest Laboratory, Bangalore. . . . . . . . . . . " ( 13 ) IT is not disputed that in the year 1964 when respondent NO. 2 was promoted to the post of Director of Biological Research, no rules were framed by the President under the proviso to Art. 309 of the Constitution, regulating the appointment to the post of Director of Biological Research. Therefore, the appointment to the post of Director of Biological Research was governed by the executive order made by the Union Government under Art. 73 of the Constitution,. the relevant portion of which has been extracted above. The effect of the order of the Union Government dt. 9th july, 1963 is that seven posts of Chief Research Officers in the grade of rs. 1300-60-1600 were abolished and replaced by an equal number of permanent posts of Senior Research Officers in the Selection Grade of rs. 1300-60-1600. Respondent No. 2 who was already holding one of the seven permanent posts of Chief Research Officers in the grade Rs. 1300-60- 1600 was continued as Senior Research Officer in the Selection Grade of rs. 1300-60-1600. It is also clear from the aforesaid order of the Union government that of the seven selection grade posts of Senior Research officers, one is designated as Director of Forest Products Research and one as Director of Biological Research. 1300-60- 1600 was continued as Senior Research Officer in the Selection Grade of rs. 1300-60-1600. It is also clear from the aforesaid order of the Union government that of the seven selection grade posts of Senior Research officers, one is designated as Director of Forest Products Research and one as Director of Biological Research. Though the holders of all the seven posts of Senior Research Officers in the Selection Grade continue in the pay scale of Rs. 1300-60-1600, the holders of the posts of Director of forest Products Research and the Director of Biological research only are granted an additional special pay of Rs. 100 per month. Though in some correspondence and orders, the appointment to the post of Director of Biological Research is described as a promotion from the post of Senior Research Officer in the Selection Grade, the order of the Union Government referred to above makes it clear that the post of Director of Biological Research and the Director of Forest products Research are not promotional posts from the cadre of Senior research Officers. A special pav of Rs. 100 per month is payable to anyone of the seven Senior Research Officers in the Selection Grade who is ordered to hold the post of Dirctor of Forest Products Research or the post of director of Biological Research. The legal effect of the order of the Union government dt. 9th July, 1963 is not to constitute the post of Director of biological Research as a promotional post. As the post of Director of Biological research, in the year 1964 when respondent No. 2 was appointed to the said post, was not a promotional post, the question of the case of the petitioner not being considered for promotion to the said post does not arise. Besides, it is clear from the order of the Union Government dt. 9th July, 1963 that the special pay of Rs. 100 is available only to the senior Research Officer at the Institute who holds the post of Director of biological Research. As the petitioner is admittedly not the holder of any one of the seven posts of Senior Research Officers in the Institute, he is not entitled to claim that he should be considered for the appointment to the post of Director of Biological Research and paid a special pay of rs. 100 per month. As the petitioner is admittedly not the holder of any one of the seven posts of Senior Research Officers in the Institute, he is not entitled to claim that he should be considered for the appointment to the post of Director of Biological Research and paid a special pay of rs. 100 per month. The entire case of the petitioner has been constructed on the assumption that the cost of Director of Biological Research is a promotional post from the cadre of Senior Research Officers in the Selection grade and that the petitioner being holder of a post equivalent to the post of Senior Research Officer, he is entitled to be considered for promotion to the post of Director of Biological Research. As the basic assumption is proved to be wrong, the petitioner is not entitled to any relief. ( 14 ) THE petitioner's prayer for a direction to amend the Forest research Institute and Colleges (Class I and Class II non-tenure posts) recruitment Rules, 1966, is misconceived inasmuch as no such direction, can be issued to the President to amend the rules framed by him in exercise of his powers under the proviso to Art. 309 of the Constitution. The question of considering the effect of these rules also does not arise in this case, inasmuch as the impugned appointment of respondent No. 2 was made in the year 1964, long prior to the framing of the aforesaid rules. ( 15 ) FOR the reasons stated above, this writ petition fails and the same is dismissed. --- *** --- .