ORDER
Sadasivayya, J.
1. The petitioner, who was the Joint Director of Public Instruction, has since retired during the pendency of this writ petition. The facts and circumstances which have led to this writ petition, briefly stated, are as follows.
2. The petitioner who was in Bombay educational Service was confirmed in September, 1951 in class I (Administrative Branch) of that service. In July, 1953, while he was occupying the post of the Educational Inspector, Dharwar, he made a speech, in consequence of which he was placed under suspension and disciplinary proceedings were taken by the Government of Bombay. As a result of those proceedings, the Government of Bombay passed an order in October, 1954 directing
(i) that the petitioner's increments be withheld for a period of three years with out permanent effect, and
(ii) that he should not be appointed as Educational Inspector or as Principal of any training college during that period.
3. On 12 November, 1954, the petitioner was further informed by the Government of Bombay that his full pay during the period of suspension would not be granted. Consequent on the reorganization of the States, the petitioner, who, at that time, was a Professor of Education in S.T. College, Belgaum, was allotted to the State of Mysore. He continued to hold post till 16 October, 1957 when by the Government notification (as per annexure O) dated 16 October, 1957, he was, on an officiating basis, posted as Deputy Director of Public Instruction, Chitaldrug Division. (In the meanwhile all the steps which the petitioner had taken to have set aside the punishment which had been imposed upon him by the State of Bombay, had proved unsuccessful) In November, 1959, the petitioner filed a petition under Art, 32 of the Constitution in the supreme Court challenging the validity of the order of punishment which had been imposed by the State of Bombay, on the ground that it operated as an unreasonable restriction on his fundamental right of freedom of speech; there were also other grounds which had been urged in that petition, against the validity of the said order. That was in Write Petition No. 55 of 1960 on the file of the Supreme Court [vide 1962 - I L.L.J. 134]. That write petition was decided in favour of the petitioner in August, 1961 (as per annexure Y) and the Supreme Court set aside the order of punishment which had been passed by the erstwhile Government of Bombay. By its order dated 2/3 January, 1962 (annexure F), the government of Mysore directed that, in view of the judgment of the Supreme Court quashing the order of punishment which had been passed by the Government of Bombay, the withheld increment of the petitioner be restored and that 'he be deemed to have been promoted on an officiating basis' as Deputy Director of Education, ex-Bombay State, with effect from 22 June, 1954 till the date of reorganization and as Deputy Director of Public Instruction thereafter until further orders. By a notification (annexure G) dated 2 January, 1962, the petitioner was promoted temporarily as Joint Director of Public Instruction vice Vasudevayya (responded 2) who (till then was a temporary Joint Director) was appointed as Additional Joint Director of Public Instruction vice Sivaram (respondent 3) who was reverted as Deputy Director of Public Instruction vice the petitioner. The fact of the petitioner having made several representations to the Government and the details of the relief prayed for by him have been set out in Para. 12 of his affidavit.
4. The petitioner was not satisfied with the reliefs given to him under the orders as per annexures F and G. In the present writ petition (which was filed on 4 June, 1963), the petitioner sought for a writ or direction in the nature of mandamus against the State of Mysore. The prayer portion is as follows :
'(i) to fix me in the scale of Rs. 1,800-100-2,000, the scale of the Director of Education, Bombay State, Poona, with effect from 6 October, 1960;
(ii) to fix my relative seniority above T. Vasudevayya and G. P. Sivaram, as the State of Mysore is bound to by the combined operation of the order of the Supreme Court and the State Reorganization Act and the Government of India directions issued in that behalf;
(iii) to direct the respondent State of Mysore to pay me the special pay of Rs. 150 per month, attached to the post of the Deputy Director of Education, Bombay State, Poona, with effect from 22 June, 1954 which has been denied to me so far, though I have been deemed to be the Deputy Director of Education, Bombay State, Poona as per G.O. No. ED 112 DTO 61, dated 2/3 January, 1962 (annexure G); and
(iv) to direct the respondent State of Mysore to pay me the costs of the Court proceedings and such other reliefs or benefits which this Court may, in the ends of justice and in the circumstances of the case, deem fit and proper for which act of kindness, I as in duty bound shall further pray.'
5. Respondent 2 is ex parte. Respondent 1 as well as respondent 3 have not admitted the claim put forward by the petitioner. Respondent 3 has further stated in his counter-affidavit that the order of the State Government equating the posts of Deputy Directors of Education of the State of Bombay with the posts of the Deputy Directors of Public Instruction of the old State of Mysore, was not justified and that the latter posts ought to have been placed on a higher category. It is further alleged inn his counter-affidavit that he has made a representation to the Central Government about this matter and also in regard to his seniority in relation to one Sri Raichur who was officer from the Bombay Educational Service allotted to the State of Mysore (and who has since died). While he has not denied the seniority of respondent 2, he has disputed the petitioner's claim for seniority. By way of answer to these counter-affidavits, the petitioner has also filed reply-affidavits. Subsequently, the Government passed an order as per annexure Q (dated 10 June, 1963), allowing the petitioner's claim in regard to the special pay of Rs. 150 attached to the post of Deputy Director of Education. Consequently, the petitioner filed a memorandum dated 24 June, 1963 praying for permission to amend the writ petition by withdrawing the prayer for relief in respect of the said special pay. On being permitted to amend, he deleted the prayer 3 of the writ petition which pertained to his claim for the said special pay.
6. In view of the appointment of the petitioner as Deputy Director of Education from 22 June, 1964 (the date on which his junior Sri V. K. Chowdhari was promoted as Deputy Director of Education in the State of Bombay) and the claim of the petitioner for the payment of the with-held increments and the special pay of Rs. 150 which has been attached to the post of the Deputy Director of Education, having been allowed by the State, there remain only two main questions for consideration in this petition.
7. The first one is the claim of the petitioner that as from the date of his promotion as the Joint Director, he would be entitled to the pay-scale attached to the post of the Director of Education in the State of Bombay as immediately prior to the date of the States Reorganization. This claim is based on the option to a Government servant affected by reorganization to claim promotion to a post one stage above, in the new State in the scale of pay that would have been admissible to him on such promotion in his parent State before reorganization. That option has been set out in Para. 5 under the heading 'VI. Dearness pay' in the directive issued by the Government of India under S. 115(7) of the States Reorganization Act which has been referred to in O.M. No. SRDI-1 APM 57, dated 11 May, 1957.
8. The second question is whether the petitioner was entitled to promotion as Joint Director of Public Instruction from 6 October, 1960, the date on which respondents 2 and 3 were promoted as Joint Directors. This question has not been expressly or separately raised in the affidavit annexed to the writ petition. But it is stated on behalf of the petitioner that this question is implicit in the second prayer in the writ petition, wherein the petitioner has sought for the fixation of his seniority above respondents 2 and 3. The contention of the petitioner is that while respondent 2 became a Deputy Director of Public Instruction on 17 January, 1955 and respondent 3 on 29 July 1955 (as per annexure A), he (the petitioner) was their senior as he had become Deputy Director of Education on 22 June, 1954 (as per annexure F). The argument on his behalf is that he was senior to respondents 2 and 3 on the date of their promotion and as his claim for promotion was not considered at that time, because erroneously he had not, at that time, been shown in the category of Deputy Directors of Public Instruction, there is no reason to deny his promotion to the post of Joint director as from 6 October, 1960. Though the date on which the petitioner was factually promoted as Joint Director is 2 January, 1962 (as per annexure G), it is now contended that the petitioner must be deemed to have been promoted as Joint Director on 6 October, 1960 and that he would be entitled to the pay of a Joint Director, as from that date.
9. Before proceeding to a discussion of the questions above referred to, it would be useful to set out certain undisputed facts. Immediately prior to 1 November, 1956, the date on which the reorganization of the States came into force, the petitioner was a class I (Bombay Educational Service) officer holding the post of a professor in S.T. College, Belgaum. As per annexure A, that post was shown as being equated to the post of a District Educational Officer of the old State of Mysore. As per the same annexure, the post of the Deputy Director of Public Instruction in the State of Mysore was in a higher category to the post of the District Educational Officer (and the posts equated to the post of District Educational Officer). On 16 October, 1957, the petitioner was given an officiating appointment as a Deputy Director of Public Instruction as per annexure O. By the subsequent Government order (as per annexure F) dated 2/3 January, 1962, the Government ordered that the petitioner
'be deemed to have been promoted on an officiating basis as Deputy Director of Education, ex-Bombay State, with effect from 22 June, 1954 till the date of reorganization and as Deputy Director of Public Instruction thereafter untill further orders.'
By another order as per annexure G dated 2 January, 1962, the petitioner was promoted as Joint Director of Public Instruction.
10. The claim of the petitioner that on his being promoted to the post of the Joint Director of Public Instruction as per annexure G, he would be entitled to the payscale of the Director of Education as in Bombay immediately prior to the date of the States Reorganization, is founded on a portion of Para. 5 under the heading 'VI. Dearness pay' in the Government of India's letter dated 27 March, 1957 which had been referred to in the Mysore Government official Memo-random No. SRDI-1 APM 57, dated 11 May, 1957. The relevant part of the said Para. 5 (which has been extracted in annexure V) is as follows :
'5. It will be recalled that one point on which agreed conclusion could not be reached at either of the two conferences of State representatives is the question of pay to be allowed to a person affected by reorganization on subsequent promotion in the new or reorganized state to which he is allotted i.e. whether on such promotion, he should be allowed the benefit, if any, of the scale of pay to which he would have been entitled on such promotion in his parent state. The Government of India have given very careful thought to this question in the light of the views expressed by State representatives at the two conferences mentioned earlier. They have come to the conclusion that it would be equitable to allow every person affected by reorganization, the limited protection of drawing pay on promotion to a post on stage above the one held by him in a substantive capacity or in which he had officiated continuously for a minimum period of three years immediately before the date of reorganization, on the scale of pay that would have been admissible to him on such promotion in his parent State before reorganization, if such scale is more favourable than the scale attached to the post it the new or reorganized State to which he is allotted ...'
(This directive will be hereinafter referred to as Para. 5 directive.)
11. The contention of Sri Keshava Ayyangar is that immediately prior to the date of the re-organization of the States, the petitioner was holding, in a substantive capacity, a post in class I of the Bombay Educational Service, and that in relation to such posts the post of the Director of Education being a promotional one, the petitioner on his promotion to the post of a Joint Director of Public instruction in the new State of Mysore, would be entitled under Para. 5 directive, to the pay-scale of the Director of Education as immediately prior to the reorganization of the States. In this connexion it is sought to be explained that the post of the Deputy Director of Education, Bombay, was only one of the posts in the Bombay Educational Service, class I, that it was not promotional in relation to the post which the petitioner had been holding, that the so-called promotion to the post of Deputy Director of Education as per annexure F is in reality, no promotion at all and that the first real promotion which the petitioner got in the new State of Mysore was only when he was promoted as Joint Director of Public Instruction as per annexure G. It is urged that, therefore, on the petitioner being promoted as Joint Director of Public Instruction he would be entitled to the pay-scale of the post of Director of Education as that was, in the former State of Bombay, the next stage promotional post in relation to the post which the petitioner had been holding in a substantive capacity in the Bombay Educational Service, class I immediately prior to the date of reorganization.
12. By way of answer to the above contentions, Sri Mahendra, on behalf of the State, has urged the following points. That the petitioner had repeatedly urged that he should be promoted to the post of the Deputy Director of Education in the State of Bombay and of the Deputy Director of Public Instruction in the new State of Mysore and had led the Government by such representations to pass the order as per annexure F promoting the petitioner to those posts. The petitioner, who had so held out that the post was a promotional one, has not established that the post of Deputy director of Education in Bombay was not a promotional one in relation to the post which the petitioner had been holding in the State of Bombay; by his own conduct the petitioner is precluded from now contending that the post of the Deputy Director of Public Instruction in Bombay was not a promotional one in relation to the post which he had been holding in the State of Bombay. That, according to the equation of posts, the correctness of which has not been challenged by the petitioner, the post of the Deputy Director of Public Instruction in the State of Mysore was a promotional one in relation to the lower post of District Educational Officer to which had been equated the post of the Professor of the S.T. College, Belgaum, which had been held by the petitioner immediately prior to the date of the reorganization. Factually, the first promotion of the petitioner was when he was posted in an officiating capacity, as per annexure O, to the post of Deputy Director of Public Instruction Chitaldrug Division, on 16 October, 1957. He did not, then, dispute the fact that he was promoted to that post. Nor did he challenge the action of the State when it subsequently purported to promote him to the post of Deputy Director of Education, with retrospective effect, by its order as per annexure F. Therefore, it is not open to the petitioner to contend now that his first promotion in the State of Mysore was not to the post of the Deputy Director of Education and that the first promotion was only when he was promoted to the post of Joint Director of Public Instruction. That, in any event, he does not satisfy the requirement of Para. 5 directive, because the period for which he had officiated in the post of Deputy Director of Education (and the equivalent post of Deputy Director of Public Instruction) was less than the minimum period of three years specified in that directive.
13. In order to avail himself of the limited protection given by Pare. 5 directive, the promoted Government servant must show that the post from which he was promoted had been held by him either in a substantive capacity or that he had officiated in that post for a minimum period of three years immediately before the date of reorganization, viz., 1 November, 1956. That much seems to be clear from the language of that directive. In the present case, immediately prior to the appointment of the petitioner as Joint Director of Public Instruction as per annexure G, he was holding the post of a Deputy Director of Public Instruction. By reason of the terms of the Government order as per annexure F, the petitioner was deemed to be holding with effect from 22 June, 1954, the post of Deputy Director of Education in Bombay and after 1 November, 1956 the post of deputy Director of public Instruction in Mysore, only on an officiating basis. The period between 22 June, 1954 and 1 November, 1956, during which he was holding the said posts on an officiating basis, falls short of the minimum period of three years required under Para. 5 directive to entitle the promotee to claim the benefit of the limited protection given thereunder. One of the contentions on behalf of the State, therefore, is that as the petitioner had officiated in the post of the Deputy Director of Public Instruction (and its equivalent post of Deputy director of Education) for a period of less than three year, immediately prior to the date of reorganization, he is not entitled, on his promotion as Joint Director of Public Instruction, to claim the pay-scale of the post of the Director of Education in Bombay. It is in order to get over this objection put forward by the State that the stand has been taken on behalf of the petitioner that despite the terms of the order as per annexure F, he had been really holding the post of the Deputy Director of Education, in a substantive capacity only. The argument addressed in this connexion by Sri Keshava Ayyangar is that the post of the Deputy Director of Education in Bombay was a post in the Bombay Educational Service, class I, just like the post of a Professor or an Educational Inspector in the same class of service. The post of a Deputy Director of Education was not a promotional one, in relation to the post of a Professor or an Inspector of Education. As the petitioner had been holding the post of a Professor in the Bombay Educational Service, class I, in a substantive capacity, he, on his being transferred to the post of the Deputy Director of Education, held that post in a substantive capacity as it was not in any way higher to the post of a Professor or an Educational Inspector. There was no authority for the Government to limit the character of his holding that post to an officiating capacity. The contention is that having regard to the relevant service rules, if the true position is that the posting of the petitioner to the post of a Deputy Director of Education was really a transfer and not a promotion, it cannot become either a promotion or holding that post in an officiating capacity, merely because the Government order as per annexure F states so.
14. Though the above stand has now been taken by the petitioner, there is abundant material to show that in urging his claims before the State Government, he had proceeded on the basis that he was entitled to promotion as Deputy Director of Education. Sri Keshava Ayyangar does not dispute the fact that at one time the petitioner had been claiming that he should be promoted as Deputy Director of Education. It is stated that this was due to a mistaken impression on the part of the petitioner that the post of the Deputy Director of Education was a promotional on in relation to the post of a Professor or an Inspector of Education in the Bombay Educational Service, class I. It is argued by Sri Keshava Ayyangar that on the principle that there is no estopped against statute, the petitioner is not precluded from showing that the post of the Deputy Director of Education was really not a promotional one in relation to the post of a Professor or an Inspector of Education in the Bombay Educational Service, class I. Sri Mahendra for the State, while not disputing the proposition that there is no estopped against the statue, has argued that there being no specific provision to the effect that the post of Deputy Director of Education is not a promotional one, the numerous admissions on the part of the petitioner that the post of Deputy Director of Public Instruction was a promotional one, show that the petitioner was fully aware of the fact that appointments to that post were made by promotion from lower posts in class I of the Bombay Educational Service. It is also contended that when there is no definite rule in the Bombay Civil Services Rules to the effect that this post was not a promotional one and when, as a matter of fact, the promotion of the petitioner to this post was made at his own instance, the petitioner is bound by his own admissions which are not established to have been made under some mistaken impression.
15. We shall presently refer to some of the admissions and the other material which have a bearing on the above contention.
16. Annexure M is a letter dated 18 July, 1955 from the Director or Education to the petitioner, in reply to representations dated 15 and 18 April, 1855 which had been made by the petitioner. (This letter has been produced by the petitioner, as an annexure to his writ petition.) Paragraph 2(2) of annexure M is as follows :
'2. (2) As regards your request that you should be considered for higher promotion on the basis of seniority, Government decided not to appoint you in a position of independent responsibility for a period of three years for which your increments are withheld and your claims for promotion as Deputy Director of Education or Principal were not, therefore, considered. Your claim for promotion in the Bombay Educational service, class I (Administrative Branch), will be considered on merits after the expiry of the period.'
17. In para. 20 of the petition which he had filed before the Supreme Court, the petitioner had stated as follows :
'20. That the petitioner made several representations on the following dates : 9 November, 1954, 15 April, 1955, 18 April, 1955, 15 September, 1955, 20 November, 1955, 12 January, 1956 and 23 March, 1956 and requested the Government to modify the order of punishment, to treat the period of suspension as one of duty, to promote him to the post of a Deputy Director of Education and to transfer him under a senior officer. But none of his requests was granted.'
Again, in Para. 2 of ground (IX) of the same petition, he had stated as follows :
'Because your petitioner has been by reason of the punishment imposed suffered immediate pecuniary injury and has been deprived of his chances of promotion as Deputy Director of Education in the Bombay State with a special pay of Rs. 150 per month, his increments have been withheld and by reason of the disability imposed on him to hold certain posts which carry additional allowances and other emoluments he has been deprived of further prospects.'
18. It is clear from Para. 2(2) of annexure M that the petitioner had put forward claims for promotion in the Bombay Educational Service, class I (Administrative Branch), and also for promotion as Deputy Director of Education or Principal. He was informed that as the Government of Bombay had decided not to appoint him in a position of independent responsibility for a period of three years (for which period his increments has been withheld), his claims for promotion would be considered on merits after the expiry of that period. This shows that the factual position as understood both by the petitioner and by the Director of Education was that there were promotions in the Bombay Educational Service, class I (Administrative Branch), and that the posts of Deputy Directors of Education and Principal were promotional ones in relation to the post held by the petitioner at that time (namely, the post of a Professor of Education). As can be seen from the above extracted promotion of Para. 20 and ground (IX) of he petition filed before the Supreme Court, the petitioner had asserted that he had been deprived of his chances of promotion as Deputy Director of Education. Nothing has been stated in the affidavit filed in support of the present writ petition, to show that it was under some mistake that he had made the above statements to the effect that the post of the Deputy Director to Education was promotional one or that his claim for promotion in the Bombay Educational Service, class I (Administrative Branch) was due to his misunderstanding of any relevant rules or practice. On the other hand, as Para. 4(A) of his additional affidavit, the petitioner, while adverting to the letter as per annexure M, done not state that the factual position in regard to the post of a Deputy Director of Education being a pro-motional one, was really different from what had been stated in that letter. Again in Para. 9(A) of that additional affidavit, it is stated that but for the punishment imposed by the State of Bombay and which was subsequently set aside by the Supreme Court he would have been promoted as Deputy Director of Education in the State of Bombay.
19. In view of the above admission of the petitioner and having regard to the undisputed fact that there is no specific rule indicating the contrary position, namely, that the post of Deputy Director of Education was not a promotional one in relation to the post of a Professor in the Bombay Educational Service, class I, the present contention of the petitioner would have been liable to be summarily rejected. But what has been urged by Sri Keshava Ayyangar is that any admission made by the petitioner ought not to be held against him, having regard to certain factors which, broadly stated, are as follows :
(1) that when there is no rule in the Bombay Civil Service (Classification and Recruitment) Rules providing for promotion for the category of Professors or Inspectors of Education in the Bombay Educational Service, class I (Administrative Branch), to the post of a Deputy Director of Education, it cannot be presumed to be a promotional post, especially when it also is a post in the Bombay Educational Service, class I;
(2) that a Professor or an Inspector of Education in the Bombay Educational service, class I, on appointment to the post of a Deputy Director of Education, continues to get the same pay as before except for the special pay of Rs. 150 attached to the post of a Deputy Director of Education [it is explained that this special pay not being included in the definition of 'pay' as per rule 9(39)(a) of the Bombay Civil Services Rules Manual (Vol. I) the grant of the special pay of Rs. 150 attached to that post cannot be viewed as an increase in the pay which the appointed had already been getting whether as a Professor or an Inspector of Education of the Bombay Educational Service, class I];
(3) that, apart from being an Assistant to the Director of Education, there is nothing in the rules to indicate that the post of a Deputy Director of Education is one of higher responsibility in relation to the post of a Professor or an Inspector of Education in the Bombay Educational Service, class I; and
(4) that there have been some instances as indicated by some of the entries in the 1956 and earlier Bombay civil list and history of services to show that after holding the position of a Deputy Director of Education some officers have been appointed as professor; from this, it is argued that the inference can be drawn that the post of Deputy Director of Education could not be a promotional one in relation to the post of professors.
20. Even though the above points were argued at considerable length by Sri Keshava Ayyangar, we are satisfied that none of there can be of much assistance to the petitioner, having regard to all the circumstances in the case. The mere fact that there are some entries in the civil list and in the history of services showing that an officer held certain posts at certain times, cannot itself be decisive of whether the positing of that officer to a particular post was or was not by of promotion. In all such cases. It is the order appointing the officer to a particular post that has to be looked into for finding out whether the posting was or was not by way of promotion. So far as special pay of Rs. 150 per month is concerned, there seems to be some force in the argument that this cannot be viewed as an increase in the monthly pay which the officer appointed to the post of a Deputy Director of Education, had already been getting as an officer in the Bombay Educational Service, class I, before that appointment. While this special pay may be an addition to his emoluments, it would not become part of his monthly pay in view of the definition of 'pay' in rule 9(39)(a) wherein, amongst other things, it is stated that 'pay' means the amount drawn monthly by a Government servant, other than special pay. But when an officer is transferred from one post to another, from the mere that the latter post does not carry a monthly pay higher than that of the former post it does not always necessarily follow that the latter post could not be promotional in relation to the former. Because, even though ordinarily a promotional post may carry a higher pay, it is not inconceivable that the pay-scales may be such that an officer holding a lower post may be drawing a higher amount as his monthly pay than the starting pay in the pay-scale of a higher post. Therefore, the mere fact that the special pay of Rs. 150 attached to the post of a Deputy Director of Education would not amount to an increase in the monthly pay of he officer holding that post, need not necessarily have the effect of making that post a non promotional one in relational to the post which an officer had been holding immediately prior to his being posted as a Deputy Director. The contention that the post of the Deputy Director of Education is not one of greater responsibility in relation to the post of a Professor of Education or an Inspector of Education in the Bombay Educational Service, class I, does not find any basis in the service rules. Sri Keshava Ayyangar pointed out para. 4 in Chap. II of the Educational Manual of the State of Bombay, where it is stated that the Inspectors are directly responsible to the Director except in cases where the control and responsibility have been delegated to other officer. It was argued by him that the Deputy Director did not have any controlling power over the Inspectors of Educational. This argument assume that merely because the inspecting staff was directly responsible to the Director, the responsibility of the Deputy Directors cannot be higher or greater than those of an Inspector. Such an assumption appears to be fallacious. The Director who is the administrative head of the department, has to be assisted (as can be seen from the said Para. 4) in the work of administration by six Deputy Directors and an inspecting staff. The State had been divided into twenty-five inspectorates, each being in charge of an Educational Inspector, as can be seen from Paras. 5 of the said Chap. II. There is nothing shown in this arrangement, from which it can be legitimately inferred that the six Deputy Director who also had to assist the director in the work of administration, could not be vested with a greater degree of responsibility than an Educational Inspector. Form the fact that a Deputy Director of Education as a class I Educational Inspector were both in the same service, it need not necessary follows that their responsibility must have been the same either in degree or in extent. It is pointed out by Sri Mahendra in the hierarchy of authorities set out in the Administrative Branch of the Bombay Educational Service, class I, at p. 7 of the Bombay Civil Service (Classification and Recruitment) Rules, the Deputy Director of Public Instruction comes immediately after the Director of Public Instruction. Further, it has been urged by him that the special pay attached to that post may very well have been due to additional work or responsibility. Rule 9(49) of the Bombay Civil Services Rules Manual (vol. I) defines 'special pay' as follows :
'9. (49) 'Special pay' means an addition, of the nature of pay, to the emoluments of a post or of a Government servant granted in consideration of -
(a) the specially arduous nature of the duties; or
(b) a specific addition to the work of responsibility; or
(c) the unhealthiness of the locality in which the work is performed.'
21. The special pay, in the present case, being one attached to the post, the above Clause (c) would not be applicable. The addition by way of special pay may be because of the arduous nature of the duties or because of addition to the work or responsibility. In these circumstances, it cannot be said that the petitioner has made out his contents that the post of a Deputy Director of Education was not one of greater responsibility in relation to the post of a professor or the post of an Inspector of Education.
22. Rules 48 and 49 of the Bombay Civil Services (Classification and Recruitment Rules run as follows :
'48. There are two branches of the educational service, viz., the collegiate branch and the administrative branch. The personnel is divided in two classes class I and class II.
49. Appointments shall be made either -
(a) by direct recruitment from among candidates possessing the qualification specified in rules 50 and 51; or
(b) by promotion of officers already in service under the Government of Bombay, provided that seniority by itself shall not constitute a ground for preference.'
23. It is pointed out by Sri Mahendra that when rule 48 is read together with rule 49(b), it becomes clear that appointment to posts in class I of the Bombay Education service may be made by promotion of officers already in the service of the Government of Bombay. The point that is stressed by Sri Mahendra is that rule 49(b) does not confine promotions to posts in class I, only to officers in class II, and that therefore it was quite possible to fill some posts in class I, even by promotion from certain other lower posts in the same service. It is further argued by him that it was because the factual position was such in regard to the post of a Deputy Director of Education in Bombay, that the petitioner had knowingly urged repeatedly that he was entitled to be promoted to that post. It is pointed out that even from the materials furnished by the petitioner himself, it is clear that appointments by promotion were being made in the State of Bombay, to the post of Deputy Director of Education Annexure H filed by the petitioner purports to be a copy of a letter dated 10 February, 1962 addressed to the Director of Public Instruction in Mysore, Bangalore, by the Director of Education, Maharashtra State. As can be seen from annexure H, this was a reply to a letter from the Director of Public Instruction in Mysore Pertaining to the Petitioner's claim for being appointed to the post of the Deputy Director of Education, with retrospective effect from 22 June, 1954 which was the date from which his junior Sri V. K. Choudhari was promoted in Bombay State to that post. Sri Mahendra has drawn out attention particularly to para. 2 of that letter which is as follows :
'2. As regards the first request, it cannot be definitely said whether or not Dr. Javali would have been appointed as Deputy Director of Education, since appointment to the posts of Deputy Director of Education are made on the basis of seniority-cum-merit. As such, even though the Supreme Court has quashed the order passed by the Director of Education on 14 October, 1954, Dr. Javali cannot be deemed to have been appointed as Deputy Director of Education with effect from 22 June, 1954.'
24. It is contended by Sri Mahendra, with considerable force that this is an authoritative statement by the Director of Education of the Maharashtra State (successor to Bombay State) in regard to the practice of making appointments to the posts of Deputy Directors of Education on the basis of seniority-cum-merit. It is therefore argued on behalf of the state that by mere seniority the petitioner could not have claims appointment to the post of a Deputy Director, as under rule 49(b) of the Bombay Civil Services (Classification and Recruitment) Rules, seniority by itself could not constitute a ground for preference. In the court of his arguments Sri Mahendra also referred to a letter dated 27 July, 1963 from the Government of India, Ministry of Home Affairs, to the Accountant-General in Mysore, wherein it has been made clear that the practice in Bombay State was to make promotions within the Bombay Educational Service, class I, itself. A copy of that letter has been since field by Sri Mahendra. The relevant portion of that letter is as follows :
25. 'I am directed to refer to your letter No. G.A.D.-IV Edn. III/372, dated 9 July, 1963, on the above subject and to say that from the material available it is observed that the post in the Bombay State Educational Services class I, was in the pay-scale of Rs. 350-1,100. The first stage of promotion for a class I officer of the Bombay Educational Services, class I branch, was that of a principal of the training college, the second stage being the post of Deputy Director of Educational. The promotions to the posts in the first stage and the second stage were also on the same pay-scale but special pay of Rs. 100 and Rs. 150, respectively, was granted to the promotees. Promotion were made on the basis of the seniority-cum-merit ...'
26. Annexure I is a copy of letter dated 22 August, 1962 from the Accountant-General, Maharashtra, Bombay, to the Accountant-General in Mysore, Bangalore. In Para. (iii) of that letter it is stated that Sri V. K. Choudhari had been so promoted to officiate as Deputy Director of Education, Poona, on 22 June, 1954. The fact that Sri Choudhari has been so promoted to officiate as Deputy Director is not undisputed but it has been further admitted in Para. 3 of the prayer portion of the reply-affidavit by the petitioner in the Supreme Court Civil Writ Petition No. 55 of 1960 that Sri Choudhari had been posted to officiated as Deputy Director of Education, Poona. It is clear from these materials that promotions were being made even on an officiating basis to the post of the Deputy Director of Education in the State of Bombay. The instance of Sri V. K. Choudhari himself is a complete answer to the petitioner's contention that promotion from the Bombay Educational Services, class I, were not being made to the post of a Deputy Director of Education. Therefore, it follows that it was competent for the State of Mysore to make an order promoting (conditionally or otherwise), the petitioner who was holding the substantive post of a Professor of Education, to the post of a Deputy Director of Education. Factually he was promoted for the first time, as per annexure O, on 16 October, 1957. No doubt, that order does not state expressly that it was a promotion. But, as be seen from annexure A, in the question of post, the post of a Professor of Education was in a category which lower to the in which was the post of the Deputy Director of Education. Therefore, the posting of the petitioner from that post in the lower category to one in a higher category was in reality, a promotion. That the petitioner also had understood his posting to Chitaldurg Division as Deputy Director of Publics Instruction to be a promotion, is clear from his letter dated 6 October, 1958 addressed to the Accountant-General, a copy of which has been filed by Sri Mahendra after the arguments had been could. In that letter, the petitioner has clearly stated that after the bar period of three years terminated on 30 September, 1957, he was promoted as the Deputy Director of Public Instruction and Posted to Chitaldrug Division. That pro-motion was of a temporary nature. While that was so, the order as per annexure F was passed promoting the petition, which retrospective effect, on an officiating basis, to the post of Deputy Director of Education. The State was competent to make such an order and the validity of neither the order as per annexure O nor the order as per annexure F was Challenged by the petitioner. On the other hand, he has accepted the benefits arising thereunder. In these circumstances, he is bound by the qualification in annexure F that the promotion as Deputy Director of Education was on an officiating basis. We find no substance in the contention that in spite of this limitation in annexure F, he must be considered to have been holding that post in a substantive capacity. Therefore, when he was holding this post in an officiating capacity for a period is less than the required period of three years for getting the benefit Para. 5 directive, his claim for the pay-scale attached to the post of Director of Education in Bombay (as immediately prior to 1 November, 1956) is found to be untenable.
27. In the course of his arguments Sri Keshava Ayyangar indicated that Accountant-General, Mysore, in a letter dated 27 August, 1963 addressed to the Secretary to the Government of Mysore, Education Department, had expressed a view which was favourable to the contention of the petitioner. Sri Keshava Ayyangar wanted the State to produce that letter. Sri Mahendra has since filed a copy of that letter. The relevant portion of that letter which is helpful to the claim of the petitioner is as follows :
'In this connexion the protection of scale of pay of the parent state to Dr. V. K. Javali on his promotion to the post of the Joint Director was also Examined. Dr. Javali is a confirmed Bombay Educational Service, class I, officer and he has been given promotion as Deputy Director from 22 June, 1954 under the order of the Supreme Court. As per the remarks mentioned in the above paragraph he has to be deemed to be a substantive holder of the post of Deputy Director of Public Instruction as on 31 October, 1956. On his promotion to the post of Joint Director with effect from 2 January, 1962, he would be entitled to the protection to the scale of pay of the post of Director of Public Instruction (Rs. 1,800-100-2,000) which was the post available for promotion in ex-Bombay State for a Deputy Director, since this is the first promotion and since he has to be deemed to be holding the post of Deputy Director in a substantive capacity. Special order of Government for allowing the above said scale of pay to Dr. V. K. Javali with effect from 2 January, 1962 are necessary.'
28. This is, at best, option of the Accountant-General. It must be pointed out that this view overlook the fact that the promotion of the petitioner as per annexure F, was only on an officiating basis and that the length of the period during which he held the post of Deputy Director of Education on an officiating basis fell short of the period of three years required under Para. 5 directive. Even though the petitioner might have been a confirmed officer in the Bombay Educational Service, class I, it did not mean that the could not be appointed temporarily or on officiating basis to a higher post in same class. We have already stated above the fact that the State Government was competent to make the order as per annexure F. In view of these circumstances, we are not inclined to accept as correct the above view expressed by the Accountant-General.
29. There now remains only the claim of the petitioner that by reasons of the order as per annexure F, his case for promotion to the post of joint Director of Public Instruction as the new State of Mysore, had to be desired along with the case of respondents 2 and 3 at the time when the latter two were promoted as Joint Director and Additional Joint Director, respectively. It is no doubt true, as pointed out by Sri Mehendra, that on the dated on which the cases of the respondents 2 and 3 were considered for promotion to the post of Joint Director and Additional Joint Director, the case of the petitioner could not, as a matter of fact, be considered for the reason that, at that time he was in a lower category. It is not quite clear from the facts of the case as to whether, after the order a per Annexure F, the petitioner had represented to the Government that there should be a consideration of his claim for promotion as from the date on which respondents 2 and 3 were promoted as Joint Director and Additional Joint Director. This claim has not been clearly and specifically set out even in the affidavit filed in support of the present writ petition. In these circumstances, all that can be said in the present case is that petitioner may make a representation to the Government in that behalf and that it would be open to the State Government to consider that claim of the petitioner. Sri Mahendra has stated that off such a representation is made, the State Government would deal with the same, according to law. Both the petitioner as well as respondent 3 have since retire from Government service and the question of seniority as between them is of no importance except in connexion with the petitioner's claim for promotion the post of a Joint Director of Public Instruction as from the date on which respondent 2 and 3 were promoted as Joint Director and Additional Joint Director, respectively. In these circumstances we see no necessity to express any opinion in regard to the said claim of seniority and we leave it open for Government.
30. In the result, this writ petition fails and is dismissed. We direct that the parties shall bear their own costs.