# STATE OF MAHARASHTRA & ANR v. VINA YAK

- **Citation:** [1977] 2 S.C.R. 587
- **Court:** Supreme Court of India
- **Decided:** 1977-01-06
- **Case number:** Civil Appeal No. 651 of 1976
- **Bench:** Y. V. Chandrachud, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-anr-v-vina-yak-7073
- **Pages:** 6

## Headnote

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 StaiesCirciilar 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.
A
B
c
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.
E
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superseded for promotion to the higher post are later promoted on orders of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 accord·ed 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 allowanc~s "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]
F
G
II
A
B
588
SUPREME COURT REPORTS
(1977] 2 S.C.R.
. (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]

## Text

587
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 StaiesCirciilar 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.
A
B
c
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.
E
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 accord·ed 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 allowanc~s "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]
F
G
II
A
B
588
SUPREME COURT REPORTS
(1977] 2 S.C.R.
. (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 resD
E
F
G
H
pondent.
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 Agri-
~ultural 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 Assis~ants, 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
arrear·s 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
A
B
D',
F.
H
A
B
c
D
.E
F
H.
590
SUPREME COURT REPORTS
[1977) 2 S.C.R.
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 r~sult 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 :
/.-
J
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
591
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
c
]).
F
G.
H
592
SUPREME COURT REPORTS
ll977) 2 S.C.R.
;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 men11
•.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.
•