State of Maharashtra & ANR Vs.
Vinayak  INSC 4 (6 January 1977)
CITATION: 1977 AIR 505 1977 SCR (2) 587 1977
SCC (3) 332
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.
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, 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 promotion including the deemed date of promotion.
Allowing the appeal by Special Leave, the
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cases where Government servants who were superseded for promotion to the higher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 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 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.
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 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 Agricultural
Supervisor and in April 1967 he was appointed to the post of an Agricultural
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 petition and asked
for arrears of pay and allowances retrospecetively from the date on which he
ought to have been promoted in accordance with the seniority list approved by
the Central 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 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 Circular Memorandum 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 unjustified 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 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
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 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 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 at least referred
to the circular of March 10, 1960 which specifically governs matters relating
to fixation of seniority consequent 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 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 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 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 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 petition 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
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 mentioned in rule 2(d). 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 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, appellant shall pay the costs of the appeal to the
S.R .... Appeal allowed.