PETITIONER:
STATE OF MAHARASHTRA & ANR.
Vs.
RESPONDENT:
VINAYAK
DATE OF JUDGMENT06/01/1977
BENCH:
CHANDRACHUD, Y.V.
SHINGAL, P.N.
CITATION:
1977 AIR 505 1977 SCR (2) 587
1977 SCC (3) 332
ACT
Seniority and arrears of salary--Respondent Government
servant in Madhya Pradesh on Reorganisation of States was
allotted to Bombay and then to Maharashtra--Supersession
in seniority list. grievance about--Circular No.
SRV-1O64-D dt. 25.2.1965 of the Maharashtra Government does
not govern questions of seniority and supersession arising
from Reorganisation of States Circular No. SH-INT-1059-VI-9
dt. 10.3.1960 alone applies to the respondent’s case. The
1965 circular does not take away the rights, if any, under
Rule 21 of the Allocated Government Servants (Absorption,
Seniority, Pay and Allowances) Rules 1957--Scope of Rule 21.
HEADNOTE
Consequent to reorganisation of States, the Maharash-
tra Government published seniority lists from time to time,
erroneously according to the respondent a lower place of
seniority with the result that juniors got promoted and his
promotion was unduly delayed. The respondent filed a writ
petition asking for due recognition of his seniority, and
later amended his petition, claiming arrears of pay and
allowances retrospectively from the date on which he ought
to have been promoted according to the final gradation list
wherein he was placed correctly and which was approved by
the Central Government. The writ petition was allowed by the
High Court.
Before this Court the respondent contended that under
rule 21 of the Allocated Government Servants (Absorption,
Seniority, Pay and Allowances) Rules, 1957, he was entitled
to draw his pay and allowances from the date of his promo-
tion including the deemed date of promotion.
Allowing the appeal by Special Leave, the Court,
HELD: (1) The Maharashtra Government circular No. SRV
1064 dt. 25.2.1965 does not have the effect of altering the
respondent’s conditions of service to his prejudice since
the said circular issued by the State Government does not
fall within the mischief of proviso to s. 115(7) of the
States Reorganisation Act. [592 A]
(2) The circular deals with cases where Government
servants who were superseded for promotion to the higher
post are later promoted on orders of higher authorities who
considered the supersession unjustified and who having power
to set aside orders of supersession have set aside such
orders. [590 D]
(3) The circular dt. 25.2.1965 is not intended to
govern questions of seniority and supersession arising as
a result of Reorganisation of States. That circular by its
language is designed to meet cases in which a Government
servant apart from the provisions of States Reorganisation
Act and apart from the problems arising out of reorganisa-
tion of States was denied his rightful seniority but is
later accorded a due and appropriate place in the seniority
list. [590 F-G]
(4) The circular issued by the Government of Maharashtra
on February 25, 1965 does not take away from the respondent
the right, if any, which was available to him under rule
21. Rule 21 is not in the nature of an entitlement. On
the other hand, it restricts the right of the allocated
Government servant to receive pay and allowances "only with
effect from the date" from which he became available for
service or would have been so available except for the
causes mentioned in rule 2(d). [592 B-D]
588
(5) The respondent’s case must fall within the Bombay
Government Circular No. SR-INT-1059-VI dt. 10.3.1960 in
which case he would not be entitled to the arrears for
salary for the period prior to the date of his actual’
promotion. [591 G]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 651 of
1976.
(Appeal by Special Leave from the Judgment and Order
dated 19-6-1974 of the Bombay High Court in S.C.A. No.
1251 of 1970.)
M.N. Phadke, Girish Chandra and M.N. Shroff, for the
appellants.
S.V. Gupte, N. Kamalakar and A.G. Ratnaparkhi, for the
respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. On the reorganisation of States on
November 1, 1956 the respondent who was working as an Agri-
cultural Overseer in the then State of Madhya Pradesh was
allocated first to the State of Bombay and later to the
State of Maharashtra. By a resolution dated February 17,
1958 the Government of Bombay equated the post of Agricul-
tural Overseer with that of an Agricultural Assistant, Grade
II. In July 1958 the respondent was promoted as an Agricul-
tural Supervisor and in April 1967 he was appointed to the
post of an Agricultural Officer.
On the reorganisation of States, a provisional combined
seniority list of Agricultural Assistants, Grade II, was
published by the Government of Maharashtra in 1961. That
list was revised from time to time, and ultimately the
Government of India approved the final seniority list which
came to be published on May 29, 1973. The respondent has no
grievance against’ his placement in that list, but his case
is that under the seniority lists prepared from time to time
by the State Government, he was erroneously accorded a lower
place of seniority with the result that persons who were in
fact junior to him came to be promoted on the assumption
that they were senior to him. The respondent therefore filed
the present writ petition on October 14, 1970 asking for due
recognition of his seniority. He later amended that peti-
tion and asked for arrears of pay and allowances retrospece-
tively from the date on which he ought to have been promoted
in accordance with the seniority list approved by the Cen-
tral Government. The writ petition having been allowed by
the Nagpur Bench of the Bombay High Court, the State of
Maharashtra has filed this appeal by special leave.
The sole question which arises for determination in this
appeal is whether the respondent is entitled to arrears of
pay with effect from the date on which he would, in the
normal course, have been promoted if his seniority Were
recognised as it eventually came to be
589
recognised under the seniority list approved by the Central
Government in 1973. The answer to this question depends on
whether the rights of the respondent are governed by the
circular dated March 10, 1960 or by the circular dated
February 25, 1965. The case of the State Government is that
the former, and not the latter circular, applies whereas
the respondent contends that he is entitled to arrears of
salary for the entire period under the latter circular.
We find it impossible to accept the respondent’s conten-
tion, which has found favour with the High Court, that the
circular of February 25, 1965 governs the matter. That
circular reads thus:
"Retrospective promotions of those who
had been superseded earlier.
GOVERNMENT OF MAHARASHTRA
GENERAL ADMINISTRATION DEPARTMENT
Circular Memorandum No. SRV-1064-.D, Sachiva-
laya,
Bombay 32 (B.R.) 25th February, 1965/Falgune
6, 1886.
CIRCULAR MEMORANDUM OF GOVERNMENT
A question has been raised whether in cases
in which Government servants who were super-
seded for promotion to the higher post are
later promoted on the orders of higher author-
ities who consider the supersession unjusti-
fied and who having powers to set aside the
order of supersession, do so, their promotion
should be effective from the date on which
they are actually promoted or from the date
they should have been promoted had they not
been wrongly superseded. The Government has,
considered this question and decided that in
such cases, the Government servants concerned,
should be deemed to have been promoted to
higher post from the date from which they
would have been promoted, but for their wrong-
ful supersession i.e. from the date from
which their juniors who were promoted by
superseding them started to officiate in such
posts and they should be allowed pay in such
post as if they were promoted on the dates on
which their juniors were promoted and also
paid arrears of pay and allowances from such
dates.
(2) Orders in paragraph 1 above apply also to
the cases of persons, who are superseded for
promotion to gazetted post within the pur-
view of the Public Service Commission ordered
by Government but are later promoted when
their earlier supersession is considered in
consultation with the Commission unjustified.
(3) Pending cases should be regulated in
accordance with these orders in paragraphs 1
and 2 above, and arrears of
590
pay and allowances should be paid to the
persons concerned provided that if the arrears
relate to any period prior to the 1st May
1960, the payment is restricted to the period
after that date, i.e. after the st May 1960.
(4) This Circular Memorandum issues with the
concurrence of the Finance Department VIDE
that department unofficial reference No.
581/V, dated the 2nd February, 1965.
By Order and in the name of Government of
Maharashtra.
Sd/-
K.P. Nadkarni,
Deputy Secre-
tary to Govt."
The language of this circular is singularly inappropriate to
cover cases concerning equation and seniority consequent
upon formation of new States. The circular deals with
cases where government servants who are superseded for
promotion to the higher post are later promoted on orders of
higher authorities who considered the supersession unjusti-
fied and who, having powers to set aside orders of superses-
sion, have set aside such orders. In such cases, the circu-
lar provides, the government servant concerned should be
deemed to have been promoted to the higher post from the
date from which he would have been promoted but for his
wrongful supersession. There is no question in the present
case of the respondent being promoted on the basis of any
order passed by a higher authority. Nor indeed did any
higher authority consider the so-called supersession of the
respondent as unjustified. While approving the revised
seniority list in which the respondent occupied a much
higher place than previously, the Central Government did not
set aside any order of the respondent’s supersession nor did
it pass any order directing that the respondent be promoted
to a higher post. We are clear that the circular of Febru-
ary 25, 1965, on which judgment.of the High Court rests, is
not intended to govern questions of seniority and superses-
sion arising as a result of reorganisation of States. That
circular, by its language, is designed to meet cases in
which a government servant, apart from the provisions of the
States Reorganisation Act and apart from problems arising
out of reorganisation of States, was denied his rightful
seniority but is later accorded a due and appropriate place
in the seniority list. Paragraph 2 of the circular which
speaks also of posts within the purview of the Public Serv-
ice Commission affords some indication that the circular is
intended to apply only to cases of routine supersessions in
the normal course of a service career.
If the circular of February 25, 1965 were intended to
apply to a case like the present, it would have atleast
referred to the circular of March 10, 1960 which specifical-
ly governs matters relating to fixation of seniority conse-
quent upon the reorganisation of States. That circular,
insofar as relevant, reads thus:
591
"Fixation of Seniority and pay on
promotion according to final gradation lists.
GOVERNMENT OF BOMBAY
Political and Services Department
Circular No.. SR-INT-1059-VI
Sachivalaya, Bombay, 10th March, 1960
CIRCULAR OF GOVERNMENT
Promotions made on and after the 1st
November, 1956, have been treated as provi-
sional pending absorption of the personnel and
finalisation of gradation lists in accordance
with the allocated Government Servants’
(Absorption, Seniority, Pay and Allowances)
Rules 1957. They are also subject to review
in the light of the changes that may be made
in the gradation lists as a result of the
decisions on the representations Submitted by
the Government Servants concerned. Question
has been raised as to how seniority and pay in
the promotion post should be fixed in the case
of a Government servant who in the light of
the final gradation list, is promoted later
than the date on which he was due for promo-
tion. Government is pleased to direct that
seniority and initial pay on promotion
according to the final gradation list should
be fixed as if the Government servant had
been promoted on the date on which he would
have been promoted had the gradation list been
finalised on the 1st November 1956. The date
on which he would have been promoted should be
admitted on the basis of a certificate given
by the appointing authority specifying the
date. No arrears of pay should, however, be
paid for the period prior to the date of
actual promotion."
Under this circular, the seniority and initial pay of the
respondent has to be fixed as if he was promoted on the date
on which he would have been promoted if the gradation list
had been finalised on November 1, 1956. But no arrears of
pay can be paid to him for the period prior to the date of
actual promotion. The State Government relied upon this
circular by their counter affidavit filed in the High Court
but no challenge was made by the respondent to the vires or
the validity of that circular even though he had his peti-
tion amended in order to ask for arrears of salary. On the
assumption that the circular is within the powers of the
State Government, we have no doubt that the respondent’s
case .must fail within that circular, in which case he would
not be entitled to the arrears of salary for the period
prior to the date of his actual promotion.
Mr. Gupte appearing on behalf of the respondent relies
upon rule 21 of "The Allocated Government Servants’
(Absorption, Seniority, Pay and Allowances) Rules, 1957" and
argues that since
592
under that rule the respondent is entitled to draw .his pay
and allowances with effect from the date of his promotion to
the higher post including the deemed date of promotion, the
Government of Maharashtra has no power, in view of the
proviso to s. 115(7) of the States Reorganisation Act, to
alter his conditions o[ service to his prejudice. This
argument is being advanced for the first time in this Court,
but, apart from that, we are unable to agree either that
rule 21 has the effect contended for or that the circular
issued by the State Government fails within the mischief of
the proviso to. s. 115(7). By rule 21, the arrears of pay
and allowances "which may become due to an allocated govern-
ment servant" on the fixation of his pay as on November 1,
1956 shall be payable only with effect from the date from
which he became available for service in the State of Bombay
or would have been so available but for the causes mentioned
in rule 2(d). Rule 21 is not in the nature of an entitle-
ment. On the other hand, it restricts the right of the
allocated government servant to receive pay and allowances
"only with effect from the date" from which he became avail-
able for service in the State of Bombay or would have been
so available except for the causes mentioned in rule 2(d).
The circular issued by the Government of Maharashtra on
February 25, 1965 does not take away from the respondent the
right, if any, which was available to him under rule 21.
For these reasons we set aside the judgment of the High
Court, allow this appeal and direct that the respondent’s
writ petition shall stand dismissed.. In view of the order
passed at the time when special leave was granted, appel-
lant shall pay the costs of the appeal to the respondent.
S.R .... Appeal allowed.
593