{"id":56763,"date":"1977-01-06T00:00:00","date_gmt":"1977-01-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-vinayak-on-6-january-1977"},"modified":"2017-04-19T03:04:24","modified_gmt":"2017-04-18T21:34:24","slug":"state-of-maharashtra-anr-vs-vinayak-on-6-january-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-vinayak-on-6-january-1977","title":{"rendered":"State Of Maharashtra & Anr vs Vinayak on 6 January, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra & Anr vs Vinayak on 6 January, 1977<\/div>\n
Equivalent citations: 1977 AIR 505, \t\t 1977 SCR (2) 587<\/div>\n
Author: Y Chandrachud<\/div>\n
Bench: Chandrachud, Y.V.<\/div>\n
           PETITIONER:\nSTATE OF MAHARASHTRA & ANR.\n\n\tVs.\n\nRESPONDENT:\nVINAYAK\n\nDATE OF JUDGMENT06\/01\/1977\n\nBENCH:\nCHANDRACHUD, Y.V.\nBENCH:\nCHANDRACHUD, Y.V.\nSHINGAL, P.N.\n\nCITATION:\n 1977 AIR  505\t\t  1977 SCR  (2) 587\n 1977 SCC  (3) 332\n\n\nACT:\n\t    Seniority  and arrears of salary--Respondent  Government\n\tservant\t in Madhya Pradesh on Reorganisation of\t States\t was\n\tallotted to  Bombay  and  then\tto Maharashtra--Supersession\n\tin   seniority\t list.\t grievance    about--Circular\t No.\n\tSRV-1O64-D dt. 25.2.1965 of the Maharashtra Government\tdoes\n\tnot  govern questions of seniority and supersession  arising\n\tfrom Reorganisation of States Circular No.  SH-INT-1059-VI-9\n\tdt.  10.3.1960 alone applies to the respondent's case.\t The\n\t1965  circular does not take away the rights, if any,  under\n\tRule 21\t of   the Allocated Government Servants (Absorption,\n\tSeniority, Pay and Allowances) Rules 1957--Scope of Rule 21.\n\n\n\nHEADNOTE:\n\t    Consequent to reorganisation of  States,  the  Maharash-\n\ttra  Government published seniority lists from time to time,\n\terroneously  according\tto the respondent a lower  place  of\n\tseniority with the result that juniors got promoted and\t his\n\tpromotion was unduly delayed.\tThe respondent filed a\twrit\n\tpetition  asking for due recognition of his  seniority,\t and\n\tlater  amended\this  petition, claiming arrears of  pay\t and\n\tallowances  retrospectively from the date on which he  ought\n\tto have been promoted according to the final gradation\tlist\n\twherein\t he was placed correctly and which was\tapproved  by\n\tthe Central Government. The writ petition was allowed by the\n\tHigh Court.\n\t    Before  this Court the respondent contended\t that  under\n\trule  21  of  the Allocated Government Servants (Absorption,\n\tSeniority, Pay and Allowances) Rules, 1957, he was  entitled\n\tto  draw his pay and allowances from the date of his  promo-\n\ttion including the deemed date of promotion.\n\tAllowing the appeal by Special Leave, the Court,\n\t    HELD:   (1) The Maharashtra Government circular No.\t SRV\n\t1064 dt. 25.2.1965 does not have the effect of altering\t the\n\trespondent's  conditions  of service to his prejudice  since\n\tthe  said circular issued by the State Government  does\t not\n\tfall  within  the mischief of proviso to s.  115(7)  of\t the\n\tStates Reorganisation Act.  [592 A]\n\t    (2)\t The  circular\tdeals with  cases  where  Government\n\tservants   who\twere superseded for promotion to the  higher\n\tpost are later promoted on orders of higher authorities\t who\n\tconsidered the supersession unjustified and who having power\n\tto  set\t aside orders of supersession have  set\t aside\tsuch\n\torders.\t [590 D]\n\t    (3)\t The  circular\tdt. 25.2.1965 is  not  intended\t  to\n\tgovern\tquestions  of seniority and supersession arising  as\n\ta result of Reorganisation of States.  That circular by\t its\n\tlanguage  is  designed to meet cases in which  a  Government\n\tservant\t apart from the provisions of States  Reorganisation\n\tAct  and apart from the problems arising out of\t reorganisa-\n\ttion  of States was denied  his\t rightful seniority  but  is\n\tlater accorded a due and appropriate place in the  seniority\n\tlist. [590 F-G]\n\t    (4) The circular issued by the Government of Maharashtra\n\ton February 25, 1965 does not take away from the  respondent\n\tthe  right, if\tany,  which was available to him under\trule\n\t21.    Rule 21 is not in the nature of an  entitlement.\t  On\n\tthe  other  hand, it restricts the right  of  the  allocated\n\tGovernment servant to receive pay and allowances \"only\twith\n\teffect\tfrom  the  date\" from which he became available\t for\n\tservice\t or  would  have been so available  except  for\t the\n\tcauses mentioned in rule 2(d).\t [592 B-D]\n\t588\n\t    (5) The respondent's case must fall\t within\t the  Bombay\n\tGovernment  Circular  No. SR-INT-1059-VI  dt.  10.3.1960  in\n\twhich  case  he\t would not be entitled to  the\tarrears\t for\n\tsalary\tfor  the  period prior to the date  of\this  actual'\n\tpromotion.  [591 G]\n\n\n\nJUDGMENT:\n<\/pre>\n
\t    CIVIL APPELLATE JURISDICTION: Civil Appeal\tNo.  651  of
\n\t1976.\n<\/p>\n
\t    (Appeal  by Special Leave from the Judgment\t and   Order
\n\tdated  19-6-1974  of the Bombay High Court in\tS.C.A.\t No.
\n\t1251  of 1970.)
\n\t    M.N.  Phadke,  Girish Chandra and M.N. Shroff,  for\t the
\n\tappellants.\n<\/p>\n
\t    S.V.  Gupte, N. Kamalakar and A.G. Ratnaparkhi, for\t the
\n\trespondent.\n<\/p>\n
\tThe Judgment of the Court was delivered by
\n\t    CHANDRACHUD,  J.\tOn the reorganisation of  States  on
\n\tNovember 1, 1956 the respondent who was working as an  Agri-
\n\tcultural  Overseer in the then State of Madhya\tPradesh\t was
\n\tallocated  first  to the State of Bombay and  later  to\t the
\n\tState  of Maharashtra.\t By a resolution dated February\t 17,
\n\t1958  the Government of Bombay equated the post of  Agricul-
\n\ttural Overseer with that of an Agricultural Assistant, Grade
\n\tII.  In July 1958 the respondent was promoted as an Agricul-
\n\ttural  Supervisor and in April 1967 he was appointed to\t the
\n\tpost of an Agricultural Officer.\n<\/p>\n
\t    On the reorganisation of States, a provisional  combined
\n\tseniority  list\t of Agricultural Assistants, Grade  II,\t was
\n\tpublished  by the Government of Maharashtra in\t1961.\tThat
\n\tlist  was  revised  from time to time,\tand  ultimately\t the
\n\tGovernment of India approved the final seniority list  which
\n\tcame to be published on May 29, 1973.  The respondent has no
\n\tgrievance against’ his placement in that list, but his\tcase
\n\tis that under the seniority lists prepared from time to time
\n\tby the State Government, he was erroneously accorded a lower
\n\tplace of seniority with the result that persons who were  in
\n\tfact  junior  to him came to be promoted on  the  assumption
\n\tthat they were senior to him. The respondent therefore filed
\n\tthe present writ petition on October 14, 1970 asking for due
\n\trecognition  of his seniority.\tHe later amended that  peti-
\n\ttion and asked for arrears of pay and allowances retrospece-
\n\ttively from the date on which he ought to have been promoted
\n\tin  accordance with the seniority list approved by the\tCen-
\n\ttral  Government.  The writ petition having been allowed  by
\n\tthe  Nagpur  Bench of the Bombay High Court,  the  State  of
\n\tMaharashtra has filed this appeal by special leave.
\n\t    The sole question which arises for determination in this
\n\tappeal\tis whether the respondent is entitled to arrears  of
\n\tpay  with  effect from the date on which he  would,  in\t the
\n\tnormal\tcourse,\t have been promoted if\this  seniority\tWere
\n\trecognised as it eventually came to be
\n\t589<\/span>
\n\trecognised under the seniority list approved by the  Central
\n\tGovernment in 1973.  The answer to this question depends  on
\n\twhether\t the  rights of the respondent are governed  by\t the
\n\tcircular  dated\t March\t10, 1960 or by\tthe  circular  dated
\n\tFebruary 25, 1965.  The case of the State Government is that
\n\tthe  former, and not the  latter  circular, applies  whereas
\n\tthe  respondent contends that he is entitled to\t arrears  of
\n\tsalary for the entire period under the latter circular.
\n\t    We find it impossible to accept the respondent’s conten-
\n\ttion,  which has found favour with the High Court, that\t the
\n\tcircular  of  February 25, 1965 governs\t the  matter.\tThat
\n\tcircular reads thus:\n<\/p>\n
\t\t\t    “Retrospective promotions of those\t who
\n\t\t      had  been superseded earlier.\n<\/p><\/blockquote>\n
\t\t      GOVERNMENT OF MAHARASHTRA
\n\t\t      GENERAL ADMINISTRATION DEPARTMENT
\n\t\t      Circular Memorandum No. SRV-1064-.D,  Sachiva-
\n\t\t      laya,
\n\t\t      Bombay  32 (B.R.) 25th February,\t1965\/Falgune
\n\t\t      6, 1886.\n<\/p><\/blockquote>\n
\t\t      CIRCULAR MEMORANDUM OF GOVERNMENT
\n\t\t      A\t question has been raised whether in   cases
\n\t\t      in which\tGovernment servants who were  super-
\n\t\t      seded  for  promotion to the higher  post\t are
\n\t\t      later promoted on the orders of higher author-
\n\t\t      ities who consider the  supersession  unjusti-
\n\t\t      fied  and who having powers to set  aside\t the
\n\t\t      order of supersession, do so, their  promotion
\n\t\t      should  be  effective from the date  on  which
\n\t\t      they  are actually  promoted or from the\tdate
\n\t\t      they  should have been promoted had  they\t not
\n\t\t      been wrongly superseded.\tThe Government\thas,
\n\t\t      considered  this question and decided that  in
\n\t\t      such cases, the Government servants concerned,
\n\t\t      should  be  deemed to have  been\tpromoted  to
\n\t\t      higher  post  from the date  from\t which\tthey
\n\t\t      would have been promoted, but for their wrong-
\n\t\t      ful  supersession\t i.e. from   the  date\tfrom
\n\t\t      which  their  juniors  who  were\tpromoted  by
\n\t\t      superseding them started to officiate in\tsuch
\n\t\t      posts  and they should be allowed pay in\tsuch
\n\t\t      post as if they were promoted on the dates  on
\n\t\t      which  their  juniors were promoted  and\talso
\n\t\t      paid  arrears of pay and allowances from\tsuch
\n\t\t      dates.\n<\/p><\/blockquote>\n
\t\t      (2) Orders in paragraph 1 above apply also  to
\n\t\t      the cases of persons, who are superseded\t for
\n\t\t      promotion\t  to  gazetted post within the\tpur-
\n\t\t      view of the Public Service Commission  ordered
\n\t\t      by  Government  but are  later  promoted\twhen
\n\t\t      their  earlier supersession is  considered  in
\n\t\t      consultation with the Commission unjustified.
\n\t\t      (3)  Pending  cases  should  be  regulated  in
\n\t\t      accordance  with these orders in paragraphs  1
\n\t\t      and 2 above, and arrears of
\n\t\t      590<\/span>
\n\t\t      pay  and\tallowances  should be  paid  to\t the
\n\t\t      persons concerned provided that if the arrears
\n\t\t      relate  to  any period prior to  the  1st\t May
\n\t\t      1960, the payment is restricted to the  period
\n\t\t      after that date, i.e. after the st May 1960.
\n\t\t      (4)  This Circular Memorandum issues with\t the
\n\t\t      concurrence  of  the Finance  Department\tVIDE
\n\t\t      that   department\t unofficial  reference\t No.
\n\t\t      581\/V, dated the 2nd February, 1965.
\n\t\t      By  Order\t and in the name  of  Government  of
\n\t\t      Maharashtra.\n<\/p><\/blockquote>\n
\t\t\t\t\t\t\t       Sd\/-\n<\/p><\/blockquote>\n
\t\t      K.P. Nadkarni,
\n\t\t\t\t\t\t      Deputy  Secre-\n<\/p><\/blockquote>\n
\t\t      tary to Govt.”\n<\/p><\/blockquote>\n
\tThe language of this circular is singularly inappropriate to
\n\tcover  cases  concerning equation and  seniority  consequent
\n\tupon  formation\t of new States.\t  The  circular\t deals\twith
\n\tcases  where  government  servants who\tare  superseded\t for
\n\tpromotion to the higher post are later promoted on orders of
\n\thigher authorities who considered the supersession  unjusti-
\n\tfied and who, having powers to set aside orders of superses-
\n\tsion, have set aside such orders. In such cases, the  circu-
\n\tlar  provides,\tthe government servant concerned  should  be
\n\tdeemed\tto  have been promoted to the higher post  from\t the
\n\tdate  from  which he would have been promoted  but  for\t his
\n\twrongful supersession.\tThere is no question in the  present
\n\tcase  of the respondent being  promoted on the basis of\t any
\n\torder  passed  by a higher authority.  Nor  indeed  did\t any
\n\thigher authority consider the so-called supersession of\t the
\n\trespondent  as\tunjustified.  While  approving\tthe  revised
\n\tseniority  list\t in  which the respondent  occupied  a\tmuch
\n\thigher place than previously, the Central Government did not
\n\tset aside any order of the respondent’s supersession nor did
\n\tit pass any order directing that the respondent be  promoted
\n\tto a higher post.  We are clear that the circular of  Febru-
\n\tary 25, 1965, on which judgment.of the High Court rests,  is
\n\tnot intended to govern questions of seniority and  superses-
\n\tsion arising as a result of reorganisation of States.\tThat
\n\tcircular,  by  its language, is designed to  meet  cases  in
\n\twhich a government servant, apart from the provisions of the
\n\tStates\tReorganisation Act and apart from  problems  arising
\n\tout  of\t reorganisation of States, was denied  his  rightful
\n\tseniority but is later accorded a due and appropriate  place
\n\tin  the seniority list.\t Paragraph 2 of the  circular  which
\n\tspeaks also of posts within the purview of the Public  Serv-
\n\tice Commission affords some indication that the circular  is
\n\tintended to apply only to cases of routine supersessions  in
\n\tthe normal course of a service career.\n<\/p>\n
\t    If\tthe circular of February 25, 1965 were\tintended  to
\n\tapply  to  a case like the present, it\twould  have  atleast
\n\treferred to the circular of March 10, 1960 which specifical-
\n\tly governs matters relating  to fixation of seniority conse-
\n\tquent  upon the\t reorganisation of  States.  That  circular,
\n\tinsofar as relevant, reads thus:\n<\/p>\n
\t591<\/span><\/p>\n
\t\t\t       “Fixation  of  Seniority and  pay  on
\n\t\t      promotion according to final gradation lists.
\n\t\t      GOVERNMENT OF BOMBAY
\n\t\t      Political and Services Department
\n\t\t      Circular No.. SR-INT-1059-VI
\n\t\t      Sachivalaya, Bombay, 10th March, 1960
\n\t\t      CIRCULAR OF GOVERNMENT
\n\t\t\t    Promotions\tmade  on and after  the\t 1st
\n\t\t      November,\t 1956, have been treated  as  provi-
\n\t\t      sional pending absorption of the personnel and
\n\t\t      finalisation of gradation lists in  accordance
\n\t\t      with  the\t  allocated   Government   Servants’
\n\t\t      (Absorption,  Seniority, Pay  and\t Allowances)
\n\t\t      Rules  1957.  They are also subject to  review
\n\t\t      in  the light of the changes that may be\tmade
\n\t\t      in  the  gradation lists as a  result  of\t the
\n\t\t      decisions on the representations Submitted  by
\n\t\t      the  Government Servants concerned.   Question
\n\t\t      has been raised as to how seniority and pay in
\n\t\t      the promotion post should be fixed in the case
\n\t\t      of  a Government servant who in the  light  of
\n\t\t      the  final gradation list, is  promoted  later
\n\t\t      than  the date on which he was due for  promo-
\n\t\t      tion.  Government is  pleased to\tdirect\tthat
\n\t\t      seniority\t and  initial\tpay  on\t   promotion
\n\t\t      according\t to the final gradation list  should
\n\t\t      be   fixed  as if the Government\tservant\t had
\n\t\t      been  promoted on the date on which  he  would
\n\t\t      have been promoted had the gradation list been
\n\t\t      finalised on the 1st November 1956.  The\tdate
\n\t\t      on which he would have been promoted should be
\n\t\t      admitted\ton the basis of a certificate  given
\n\t\t      by  the  appointing authority  specifying\t the
\n\t\t      date.  No arrears of pay should,\thowever,  be
\n\t\t      paid  for\t the  period prior to  the  date  of
\n\t\t      actual promotion.”\n<\/p><\/blockquote>\n
\tUnder  this circular, the seniority and initial pay  of\t the
\n\trespondent has to be fixed as if he was promoted on the date
\n\ton which he would have been promoted if the  gradation\tlist
\n\thad been  finalised  on November 1, 1956.  But no arrears of
\n\tpay  can be paid to him for the period prior to the date  of
\n\tactual\tpromotion.  The State Government  relied  upon\tthis
\n\tcircular by their counter affidavit filed in the High  Court
\n\tbut no challenge was made by the respondent to the vires  or
\n\tthe  validity of that circular even though he had his  peti-
\n\ttion amended in order to ask for arrears of salary.  On\t the
\n\tassumption  that  the circular is within the powers  of\t the
\n\tState  Government,  we have no doubt that  the\trespondent’s
\n\tcase .must fail within that circular, in which case he would
\n\tnot  be\t entitled to the arrears of salary  for\t the  period
\n\tprior to the date of his actual promotion.\n<\/p>\n
\t    Mr.\t Gupte appearing on behalf of the respondent  relies
\n\tupon  rule 21 of    “The  Allocated   Government   Servants’
\n\t(Absorption, Seniority, Pay and Allowances) Rules, 1957” and
\n\targues that since
\n\t592<\/span>
\n\tunder that rule the respondent is entitled to draw .his\t pay
\n\tand allowances with effect from the date of his promotion to
\n\tthe higher post including the deemed date of promotion,\t the
\n\tGovernment  of\tMaharashtra  has no power, in  view  of\t the
\n\tproviso\t to s. 115(7) of the States Reorganisation  Act,  to
\n\talter  his  conditions o[ service to  his  prejudice.\tThis
\n\targument is being advanced for the first time in this Court,
\n\tbut,  apart  from that, we are unable to agree\teither\tthat
\n\trule  21 has the effect contended for or that  the  circular
\n\tissued by the State Government fails within the mischief  of
\n\tthe  proviso to. s. 115(7). By rule 21, the arrears  of\t pay
\n\tand allowances “which may become due to an allocated govern-
\n\tment  servant” on the fixation of his pay as on November  1,
\n\t1956  shall be payable only with effect from the  date\tfrom
\n\twhich he became available for service in the State of Bombay
\n\tor would have been so available but for the causes mentioned
\n\tin  rule 2(d).\tRule 21 is not in the nature of an  entitle-
\n\tment.  On  the\tother hand, it restricts the  right  of\t the
\n\tallocated  government servant to receive pay and  allowances
\n\t“only with effect from the date” from which he became avail-
\n\table  for service in the State of Bombay or would have\tbeen
\n\tso  available except for the causes mentioned in rule  2(d).
\n\tThe  circular  issued by the Government\t of  Maharashtra  on
\n\tFebruary 25, 1965 does not take away from the respondent the
\n\tright, if any, which was available to him under rule 21.
\n\t    For these reasons we set aside the judgment of the\tHigh
\n\tCourt,\tallow this appeal and direct that  the\trespondent’s
\n\twrit  petition shall stand dismissed.. In view of the  order
\n\tpassed\tat the time  when special leave was granted,  appel-
\n\tlant shall pay the costs of the appeal to the respondent.
\n\tS.R ….\t\t\tAppeal allowed.\n<\/p>\n
\t593<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra & Anr vs Vinayak on 6 January, 1977 Equivalent citations: 1977 AIR 505, 1977 SCR (2) 587 Author: Y Chandrachud Bench: Chandrachud, Y.V. PETITIONER: STATE OF MAHARASHTRA & ANR. Vs. RESPONDENT: VINAYAK DATE OF JUDGMENT06\/01\/1977 BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SHINGAL, P.N. CITATION: 1977 AIR 505 1977 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-56763","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra & Anr vs Vinayak on 6 January, 1977 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-anr-vs-vinayak-on-6-january-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Maharashtra & Anr vs Vinayak on 6 January, 1977 - 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