ivil Appeal No 651 of 1976
Appeal by Special Leave from the Judgment and Order dated 19 6 1974 of the Bombay High Court in SCA No 1251 of 1970 MN Phadke Girish Chandra and MN Shroff for the appellants
SV Gupte N Kamalakar and AG 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 BR 25th February 1965Falgune 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 ie 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 ie after the st May 1960
4 This Circular Memorandum issues with the concurrence of the Finance Department VIDE that department unofficial reference No 581V dated the 2nd February 1965
By Order and in the name of Government of Maharashtra
Sd KP 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 judgmentof 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 section 1157 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
section 1157
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 2d
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 2d
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
Appeal allowed


Summary:
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
2521965 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 section 1157 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
2521965 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 2d
592 B D 588 5 The respondent s case must fall within the Bombay Government Circular No SR INT 1059 VI dt 1031960 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