Case: State Of Maharashtra Vs. Ministerial Service Association

1. This judgment will also dispose of Civil Appeal No. 260 of 1964. These appeals arise from a judgment, dated October 27, 1961 of the High Court of Bombay in a petition under Art. 226 of the Constitution, filed by three First Grade clerks attached to the offices of the Collectors of Wardha, Bhandra and Chanda districts. They are the three respondents in this appeal. The petition in the High Court was originally filed by two of these respondents as Secretary and Member of the Ministerial Services Associations, Wardha and Bhandara, respectively, but they were treated as petitions on their personal behalf. The petitioners asked for a writ of mandamus against the Government of Bombay for the equation of their posts with Aval Karkuns in the State of Bombay (later the State of Maharashtra) under Ss. 115 and 116 of the States Reorganisation Act, 1956 (Act 37 of 1956) read with the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules 1957. As a first step the petitioners asked that Government Resolution No. SR/INT/1057/VI, dated October 21, 1957, together with Item No. 8 and Note 5 of the Statement accompanying that resolution, should be quashed by a writ of certiorari or by some other writ or order. By that Resolution the posts of First Grade clerks in the Deputy Commissioners offices were ordered to continue on the existing scale of pay of Rupees 80-5-130. As a second step the petitioners asked that Government be ordered by a writ of mandamus to equate their posts with the posts of Aval Karkuns. Alternatively, the petitioners asked that the Government Resolution No. SR/INT/2159/21365/F, dated October 12, 1960 should be quashed inasmuch as it fixed new scale of pay (Rupees 100-8-140) for the posts held by the petitioners from May 1, 1960 and for a mandamus commanding Government to fix the scale from November 1, 1956 on which date the State reorganisation under the above Act took effect. The High Court rejected the contention of the petitioners as to equivalence but accepted their contention that the new scales of pay ought to commence on November 1, 1956 and not May 1, 1960 as ordered by Government. Appropriate writs to effectuate the later part of the order of the High Court issued. The High Court, however, certified the case under Art. 132 (1) and curiously enough under all the three clauses of Art. 133 of the Constitution and the two rival appeals have, therefore, been filed by the three petitioners and the State Government questioning the judgment of the High Court in so far as it goes respectively against them.

Court's reasoning:
There is no question of discrimination because it was always possible that a special post might not fit into the kinds of posts there were in the principal successor State. Such a post would be required to be treated by itself and regard being had to the scales of pay obtaining generally in the principal successor State, the old scales of pay would either be retained or modified for such a post. In the case of First Grade clerks in the Collectorate no equivalent post was found as the duties of Aval Karkuns in the former Bombay State were entirely different from those which First Grade clerks performed. Therefore, it was not possible to make the post of Aval Karkuns as an equivalent post to that of First Grade clerks. We do not think that the State Government was wrong in declining to equate the posts. Nor do we think that there was discrimination in doing so or Rule 12 under which it was done was discriminatoryA rule which provides for a special treatment of an odd case is not necessarily discriminatory. Discrimination can be proved only if equivalence is not carried out although an equivalent post is available. Rule 12 was made in view of the multifariousness of the posts existing in the different components from which the principal successor State was formed because it was obvious that some existing posts could not simply be equated with posts in the principal successor State. They had to be treated on an independent footing and this is what has been done. There is also nothing in Ss. 115 and 116 of the Reorganisation Act which compels equivalence in every case. The contention of the appellants in Civil Appeal No. 260 of 1964 must, therefore, failThe rule indicates that the fixing of pay-scale in respect of allocated Government servant is to be on and from November 1, 1956 and in doing so, Government may act in two ways. They are indicated in (i) and (ii) of the rule. If the alloated Government servant was already a servant of the former State of Bombay, the Bombay scale of post which he held was to continue on or after November 1, 1956 as if he had continued in the service of the former State of Bombay. If the allocated Government servant was allotted from a State other than the former State of Bombay, the Bombay scale of an equivalent post was to be given to him also from November 1, 1956, The rules, no doubt, were subject to the condition that Government might otherwise direct, but the words of the rule "except where Government otherwise directs were not intended to change the date on which the scales of pay were to come into operation, namely November 1, 1956 but to enable Government to make special orders which were not in accordance with (i) and (ii) of the rule.Both on the sense of the matter as well as on their construction, the words "except where Government otherwise directs gave power to Government to depart from the two positions obtaining under (i) and (ii) of the rule, but not so as to fix scales from a date other than November 1, 1956. If it had been intended that Government might fix a later date the words " except where Government otherwise directs would have been put at the beginning of the rule and not where they are found. In the place where they occur these words give power to Government to depart from (i) and (ii) of rule 10 but they cannot be construed to give similar power to Government to depart from the date on which the scales of pay under rule 10 have generally to come into operation. This conclusion is apparent if we take into account the provisions of the other rules. Every one of the rules, such as rules 14 to 19 (including all the sub-rules) and rule 23, mention over and over again that the new scales of pay shall be as on or from November 1, 1956. The intention was obviously to make that date as the date line on which the scales of pay in the principal successor State would start. The mistake of Government was in failing to see this vital fact. Rule 12 also provides that, notwithstanding anything contained in the foregoing rules, the pay-scale applicable to an allocated Government servant who immediately before the 1st November, 1956 held a post to which Government had not declared an equivalent post or had decided it was not necessary to have declared an equivalent post, shall be the pay-scale which would have been applicable to him had the allocated Government servant continued in the service of the former State or such other pay-scale as Government by general or special order may prescribed. Here again, the old pay-scale or the new pay-scale, as the case may be, commences on November 1, 1956. The power which is conferred on Government to prescribe new pay-scale must be exercised from November 1, 1956. This power is intended to enable Government to make a change in the scale of pay but not to change the date. November 1, 1956 is always the fixed date line. The non-obstante clause, with which rule 12 opens, cannot be construed to this effect. It is obviously intended to enable Government to consider special cases which do not fall within rule 10 but which nevertheless must be provided for on and from November 1, 1956.In this view of the matter the order of the High Court cancelling the date May 1, 1960 as the starting point of the new scales of pay and fixing November 1, 1956 as the date of start must be upheld.