STATE OF MAHARASHTRA & ANR. v.

VINA YAK

January 6, 1977

[Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.]

Seniority and arrears of salary-Respondellt Governme/lf ser.vant in Madhya Pradesh on Reorganisation of States was allotted to Bombay and then to Maharashtra-Supersession in seniority list. grievance about-Circular No.

SRV-1064-D dt. 25.2.1965 of the Maharashtra Government does not govern <JUCstions Of seniority and supers.ession arising froni Reorganisation •of Staies-

Circiilar No. SH-INT-1059-Vl-9 dt. 10.3.1960 alone applies to the respondent's case.

T/u, 1965 circular does not take away the rights, if any, under Rule 21 of the A /located Government Servants (Absorption, Seniority, Pay and A /loances) Rules 1957-Scope of Rule 21.

Consequent to reorganisation of States, the Maharashtra 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, D claiming arrears of pay and allowances retrospectively from the date on which be 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 Coµrt 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 promotion 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(2) The circular deals with cases where Government servants who were superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjustified and who having power to set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 DJ

(3) The circular dt. 25.2.1965 is not intended to govern questions of senio;-ity 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 reorganisation 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 w; s available to him under rule 21.

Rule 21 is not in the nature of an enti!lement. . On the other hand, it restricts the right of the allocated Government servant to receive pay and allowancs "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]

. (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 en!Jtled. to the arrears for salary for the period prior to the date of his actuat promot10n.

[591 G]

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.

C 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 Agricultural 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 Agricultural Overseer with that of an Agricultural Assistant,. 'Grade II. In July 1958 the respondent was promoted as an Agriultural 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 Assisants, Grade II, was published by the Government of Maharashtra in 1961.

That list was revised from time to time, and ultimately tthe 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 petition and asked for arrears of pay and allowances retrospectively from the date on which he ought to have been promoted in accordance with the seniority list approved by the Central Govern- :ment.

The writ petition having been aUowed 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 en.titled 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

MAHARASHTRA v. VINAYAK (Chatzdrachud, J.) 5 89

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 safary for the entire period under the latter circular.

We find it impossible to accept the respondent's contention, 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

I Circular Memwandum No. SRV-1064-D, Sachivalaya,

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 superseded for promotion to the higher post are later promoted on the orders of higher authorities who consider the supersession 4nfustified 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 wrongful 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 purview 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

D',

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 1st 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 Secretary 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 unjustified and who, having powers to set aside orders of supersession, have set aside such orders. In such cases, the circular 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 February 25, 1965, on which judgment of the High Court rests, is not intended to govern questions of seniority and supersession arising as a rsult 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 Service 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 specifically governs nmtters relating to fixation of seniority consequent upon the reorganisation of States.

That circular, insofar as relevant, reads thus : /.-

MAHARASHTRA v. VINAYAK (Chundrachud, J.)

"Fixation of Seniority and pay on pronwtion according to final gradation lists.

GOVERNMENT OF BOMBAY

PolitiC'al 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 provisional 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 tfue 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 promotion.

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 senio1ity 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 Hi_gh Court but no challenge was made by the respondent to the vires or the validity of that circular even though he had his petition amended in order to ask for arrears of salat')'.

On the assumption that the circular is within the powers of the State Government, we have no doubt that the respondent's case must fall within that circular, in which C'ase 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, 19?7" and argues that i<ince

]).

; A under that rule the respondent is entitled to draw his pay and allow- " ances 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 of service to his prejudice.

This arg4ment is being advanced for the first time in this Court, but, apart from that, we are unable to agree either that rule iB 21 has the effect contended for or that the circular issued by the State Government falls 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 government 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 men- 11

•.C tioned in rule 2(d).

Rule 21 is not in the nature of an entitlement.

On the other h•and, it restricts the right of the allocated government servant to receive pay and allowances "only with eficct from the date" from which he became available for service in the State of B::>mbay or would have been so available except for the causes mentioned in rule 2(d).

The circular issued by the Governmnet of Mahoarashtra on February 25, 1965 does not take away from the respondent the lD 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

st•and dismissed.

In view ot the order passed at the time when special leave was granted, appellant shall pay the costs of the appeal to the respondent.

;.S.R.

Appeal allowed.