Judgment

GROVER, J. :- This is an appeal by special leave from a judgment of the Mysore High Court allowing a petition filed under Article 226 of the Constitution by Respondent No. 1 and granting him certain reliefs.

2. The facts may be briefly stated. Respondent No. 1 joined as a Veterinary Inspector in December 1953. In September, 1961, he was posted as Lecturer in Clinical Medicine in the Medical College of Bangalore. On 25th October, 1961, he was temporarily promoted "without prejudice to the seniority of others" as General Manager, Hubli-Dharwar Milk Supply Scheme in the scale of Rs. 250-20-360-25-500 (revised scale) with immediate effect. On 13th December, 1962, Respondent No. 2 was promoted as Dairy Extension Officer in the grade of Rs. 175-400. On 2nd April, 1963, Respondent No. 2 was posted as General Manager of the Dharwar Milk Supply Scheme in the grade of Rs. 250-500. By another order made on the 15th May, 1966 in modification of the previous order, Respondent No. 2 was posted as Superintendent, Bangalore Milk Supply Scheme on his own pay and scale of General Manager. That was a Class II post. On 19th October, 1963, the grade of Class II was given to Respondent No. 2 in the scale of Rs. 275-600. It may be mentioned that all these postings were done in an officiating capacity. In December, 1964, the post of General Manager of the Hubli-Dharwar Milk Supply Scheme was upgraded to Class II. The Respondent represented that although he was occupying a Class II post he was drawing a salary of Class III post and, therefore, he should be given the salary in the grade of Rs. 275-600 being the salary of Class II grade. His claim was negatived by an order dated July 23, 1966. Ultimately, he filed a petition under Article 226 challenging the order negativing his claim and asking for other reliefs.

3. The High Court took the view that when Respondent No. 1 became a Dairy Development Officer in the year 1962 which was a Class II post, he could not be given the emoluments less than those payable to the occupant of Class II post . Rule 32 of the Mysore Civil Services Rules was held to be inapplicable to him. The High Court does not appear to have gone into the question which had been raised in the petition that Respondent No. 2 who was junior to him was given the promotions and other benefits which offended the fundamental right of the equality of opportunity in the matter of promotion. In addition to quashing the impugned order, the High Court issued a direction for payment to Respondent No. 1 of the emoluments of Class II post from the appropriate date.

4. On behalf of the State, which is the Appellant before us, it had been pointed out that Respondents Nos. 1 and 2 did not belong to one cadre and that the appointments which had been made from time to time were purely on ad hoc and temporary basis. It was further argued that the real claim of Respondent No. 1 was that he should be considered as Class II Officer because the post of General Manager, Hubli-Dharwar Milk Supply Scheme, was upgraded in December, 1964. That contention, it is said, is wholly untenable but what has to be seen are the terms of appointment of Respondent No. 1. Although on 5th October, 1962, the Respondent No. 1 was transferred and posted as Dairy Development Officer, Headquarters, but that was on his own pay and grade. The mere fact that he was holding a Class II post did not entitle him in these circumstances to claim the emoluments of a person holding a Class II post. There was no order ever made by any competent authority by which the Respondent No. 1 was appointed to Class II service that as per the existing cadre and Recruitment Rules of the Department the gazetted posts were to be filled up in the ratio of 60 per cent by promotion from the officials in the cadre of Veterinary Assistant Surgeons on seniority-cum-merit basis and 40 per cent by direct recruitment through the Public Service Commission. The promotion of Respondent No. 1 was only on a temporar