# STATE OF MAHARASHTRA v. MINISTERIAL SERVICE ASSOCIATION

- **Citation:** [1966] 2 S.C.R. 134
- **Court:** Supreme Court of India
- **Decided:** 1965-10-08
- **Case number:** Civil Appeals Nos. 259• and 260 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, J. C. Shah, S. M. Sii<Ri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-ministerial-service-association-3683
- **Pages:** 8

## Headnote

States Reorganisation Act (37 of 1956), s. 115 and Allocated Government Servants (Absorption, etc.) Rules of Bombay, 1957, rr. 10 and 12Scope of.
By virtue of the powers conferred by s. 115 of the States Reorganisation Act, 1956, read with Art. 309 of the Constitution, the Allocated
Government Servants (Absorption etc.) Rules we.re made by the Government of the reorganised State of Bombay.
In October 1960, Government resolved, that the post of first grade clerks in the Revenue Department in the districts of the Nagpur division which were integrated with
the former Bombay State to form the new State, need not be equated to
any other post but that its pay-scale should be revised from !st May 1960.
Some of the first grade clerks filed a petition in the High Court for the
issue of appropriate writs to quash the resolution and for ordering the
Government to equate their posts with the post of Aval Karkwis in the
former State of Bombay or in the alternative for directing the Government to fix the revised scale of pay from !st November 1956 on which
date the Aot took effect, instead of !st May, 1960.
The High Court
rejected the contention of the petitioner. as to equivalence but accepted
their contention that the new scales of pay ought to commence on !st
November, 1956 and not !st May, 1960 as ordered by Government. The
clerks as well as the State appealed to the Supreme Court.
In their appeal, the clerks contended that: (i) the Government was
bound to find an equivalent post for them and that the nearest equivalent
post was that of Aval Karkuns and (ii) by not assigning them to an
equivalent post they had been discriminated against, and r. 12, which
provides that a post need not be equated to an equivalent post is discriminatory.
In its appeal, .the State Government contended that, under
r. 10 it was open to Government to fix the pay scales of an aUocated
Government servant not only from !st November, 1956, but also from any
subsequent date because the words of the rule "except where Government
otherwise directs".
A
B
c
D
E
F
HELD: (i) The duties of Aval Karkuns in the former State of Bombay
were entirely different from those which first grade clerks performed and
G
therefore, it was not possible to make the post of Aval Karkuns as an
equivalent post to that of first grade clerks. [138 G-H]
(ii) Discrimination can be proved only if equivalence is not carried out
although an equivalent post is available.
A rule which provides for a
special treatment of an odd case is not necessarily discriminatory. Rule 12
was made in view of the multifariousnes.s of the posts existing in the
different components from which the principal successor State was formed
and because, soma existing posts could not be equated with po.ts in the
principal successor State and had to be treated on an independent footing. [139 A]
134
H
-
-
STATE_ v. SERVICE ASSCN. (Hidayatullah, /.)
135.
A
(iii) On the sense of the matter, as well as on their construction and
position, the wordS of r. 10 were not intended to change the date on
which the scales of pay were to come into operation, namely,. !st November, 1956, but to enable Government to make special orders which were
not in accordance with els. (i) and (ii) o_f the rule. [140 C-D]
The power which is conferred on Government by r. 12 to prescribe a
new pay-scale must be exercised from ht November, 1956. Every one of
B
the rules, 14 to 19 and r. 23 mention over and over again that the new
scales of pay shall be a• on or from !st November, 1956. The intention
was to enable Government to make a change in the scale of pay but not
to change the date of !st November, 1956, which was allvays the fixed
date line. [140 F-0]
c

## Text

STATE OF MAHARASHTRA
v.
MINISTERIAL SERVICE ASSOCIATION
October 8, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, J. C. SHAH AND S. M. SII<RI, JJ.J
States Reorganisation Act (37 of 1956), s. 115 and Allocated Government Servants (Absorption, etc.) Rules of Bombay, 1957, rr. 10 and 12Scope of.
By virtue of the powers conferred by s. 115 of the States Reorganisation Act, 1956, read with Art. 309 of the Constitution, the Allocated
Government Servants (Absorption etc.) Rules we.re made by the Government of the reorganised State of Bombay.
In October 1960, Government resolved, that the post of first grade clerks in the Revenue Department in the districts of the Nagpur division which were integrated with
the former Bombay State to form the new State, need not be equated to
any other post but that its pay-scale should be revised from !st May 1960.
Some of the first grade clerks filed a petition in the High Court for the
issue of appropriate writs to quash the resolution and for ordering the
Government to equate their posts with the post of Aval Karkwis in the
former State of Bombay or in the alternative for directing the Government to fix the revised scale of pay from !st November 1956 on which
date the Aot took effect, instead of !st May, 1960.
The High Court
rejected the contention of the petitioner. as to equivalence but accepted
their contention that the new scales of pay ought to commence on !st
November, 1956 and not !st May, 1960 as ordered by Government. The
clerks as well as the State appealed to the Supreme Court.
In their appeal, the clerks contended that: (i) the Government was
bound to find an equivalent post for them and that the nearest equivalent
post was that of Aval Karkuns and (ii) by not assigning them to an
equivalent post they had been discriminated against, and r. 12, which
provides that a post need not be equated to an equivalent post is discriminatory.
In its appeal, .the State Government contended that, under
r. 10 it was open to Government to fix the pay scales of an aUocated
Government servant not only from !st November, 1956, but also from any
subsequent date because the words of the rule "except where Government
otherwise directs".
A
B
c
D
E
F
HELD: (i) The duties of Aval Karkuns in the former State of Bombay
were entirely different from those which first grade clerks performed and
G
therefore, it was not possible to make the post of Aval Karkuns as an
equivalent post to that of first grade clerks. [138 G-H]
(ii) Discrimination can be proved only if equivalence is not carried out
although an equivalent post is available.
A rule which provides for a
special treatment of an odd case is not necessarily discriminatory. Rule 12
was made in view of the multifariousnes.s of the posts existing in the
different components from which the principal successor State was formed
and because, soma existing posts could not be equated with po.ts in the
principal successor State and had to be treated on an independent footing. [139 A]
134
H
-
-
STATE_ v. SERVICE ASSCN. (Hidayatullah, /.)
135.
A
(iii) On the sense of the matter, as well as on their construction and
position, the wordS of r. 10 were not intended to change the date on
which the scales of pay were to come into operation, namely,. !st November, 1956, but to enable Government to make special orders which were
not in accordance with els. (i) and (ii) o_f the rule. [140 C-D]
The power which is conferred on Government by r. 12 to prescribe a
new pay-scale must be exercised from ht November, 1956. Every one of
B
the rules, 14 to 19 and r. 23 mention over and over again that the new
scales of pay shall be a• on or from !st November, 1956. The intention
was to enable Government to make a change in the scale of pay but not
to change the date of !st November, 1956, which was allvays the fixed
date line. [140 F-0]
c
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 259•
and 260 of 1964.
Appeals from the judgment and order dated October 27, 1961
of the Bombay High Court in Special Civil Application No. 42
of 1961.
S. V. Gupte, Solicitor-General, Ganapathy Iyer and B. R. G. K.
D A char, for the appellants (in C.A. No. 259 of 1964) and the
respondent (in C.A. No: 260 of 1964).
N. D. Kharkhanis and A. G. Ratnaparkhi, for the respondent
(in C.A. No. 259 of 1964) and appellant (in C.A. No. 260 of
1964).
E
The Judgment of the Court was delivered by
Hidayatullah, J.
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
F'
clerks attached to the offices of the Collectors of Wardha, Bhandara
and Chanda districts.
They are the three respondents in this
appeal.
The petition in the High Court was originally filled 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
G 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 Mal!arashtra) under
ss. 115 and 116 of the States Reorganization Act, 1956 (Act 37
of 1956) read with the Allocated Government Servants (Absorp·
tion, Seniority, Pay & 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·
136
SUPREME COURT REPORTS
[1966] 2 s.c.R.
.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
Commissioner's offices were ordered to continue on the existing
scale of pay of Rs. 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 post of Aval Karkuns. Alternatively,
A
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 scales of pay (Rs. 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 l,
1956 on which date the States 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
effecti.Jate the latter part of the order of the High Court issued. The
High Court, however, certified the case under Art. 132 (1) and
D
curiously enough under all the three clauses of Art. 1 3 3 of the
Constitution and the two rival appeals have, therefore, been filed
B
c
by the three petitioners and the State Government questioning the
judgment of the High Court in so far as it goes respectively against
them.
After the reorganisation of the States in 1956 it was necessary
to divide and integrate the Services in the various States affected
by the reorganisation.
Part X of the Act, particularly ss. 115 and
116 dealt with the manner in which the division and the integration
of Services was to be made. It is not necessary to refer to .these
E
sections in detail.
They provided for the establishment of Advisory F
Comntittees, making of rules and all other matters by which the
Services in the different States could be separated or integrated.
as the case may be.
By virtue of the powers conferred by s. 115
of the Act read with Art. 309 of the Constitution, the Allocated
Government Servants (Absorption, etc.) Rules were made by the
Government of Bombay. The present dispute is governed by rules
G
10 and 12 of the Rules and we shall proceed to consider them.
-
.. ,''
For the proper understanding of the scheme of the Rules in
~
relation to pay scales obtaining in the different States and how they
·.~
were affected or modified as a result of the integration, certain
i
terms and their definitions have to be borne in mind. Rule 2 of
H
these Rules gives definition of "Allocated Government servant"
and "Equivalent post". By "allocated Government servant" is
A
B
c
D
E
F
•
G
H
STATE v. SERVICE ASSCN. (Hidayatullah, J.)
!37
meant a person allotted for service in the new State of Bombay
under the provisions of s. 115 of the Act including servants of the
former Bombay State who continue in the service of the new State
of Bombay.
"Equivalent post" means (a) a post in the former
State of Bombay, or (b) any other post which is declared as equivalent to a post, whether permanent or temporary, sanctioned by the
Government of any former State which integrated into the new
State of Bombay.
Equivalence is established between the posts in
~e principal successor State, that is to say, the new State of Bombay,
and those in the existing States, territories of which were integrated
with the former State of Bombay.
Rules 10 and 12 read as
follows:-
"10. The pay-scale applicable to an allocated Government servant on the 1st November 1956, shall, except
where Government otherwise directs, be-
( i) if he was' a Government servant of the former
State of Bombay, the Bombay scale of the post which was
held or may be held by him in the Bombay State on or
after the 1st November, 1956, as if he had continued
to be in the service of the former State of Bombay;
(ii) if he was allotted from a State other than the
former State of Bombay, the Bombay scale of the equivalent post :
Provided that
Provided further that where an allocated Government servant is on or after the 1st November 1956,
absorbed in a post which is other than the corresponding •
post in the former State or the equivalent Bombay post,
the pay-scale applicable shall unless the Government
otherwise directs, be the Bombay scale of the post of
absorption or in the case of allocated Government servant referred to in clauses (a), (b) and (c) of the first
proviso above, the pay scale applicable immediately
before the 1st November, 1956, to the post held by him
in substantive capacity or officiating capacity or temporary capacity as the case may be, as the allocated Government servant may elect".
"12. Notwithstanding anything contained in the foregoing rules the pay-scale applicable to the allocated
Government servant who immediately before the 1st
November, 1956 held at a post to which Government has
138
SUPREME COURT REPORTS
[1966] 2 s.c.R.
not declared an equivalent post or has decided that it is
not necessary to declare an equivalent post, shall be the
pay-scale which would have been applicable had the allocated Government servant continued in the service of the
former State or such other pay-scale as Government may
by general or special orders prescribe :
Provided that if under these rules the pay-scale
applicable is the pay-scale prescribed by Government,
the allocated Government servant shall, if he belongs to a
category referred to in clauses (a), (b) and (c) of the first
proviso to rule 10 above, have the option to exercise the
elections referred to in the said rule 10 in the manner and
within the period prescribed in rule 11."
The question whether the First Grade clerks ought to be assimilated
to A val Karkun11 was decided against the three original petitioners
by the High Court and the question whether the revised scales ot
A
c
pay should begin on May 1, 1960 or on November 1, 1956 was
decided against the State Government.
These appeals involve D
these two questions but the three petitioners (who are appellants
in Civil Appeal No. 260 of 1964) have raised a question of discrimination. We shall deal first with the complaint of the three
petitioners.
They contend that Government was bound to find an equivalent E
post for them and they submit that the nearest equivalent post wa's
that Aval Karkuns.
They also contend that by not assigning
them to an equivalent post they have been discriminated against
and that rule 12 which enables that a post need not be equated to
an equivalent post ls discriminatory. In our judgment neither
submission is correct.
There is no question of discrimination beF
cause it was always possibfo 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
G
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 c1erks.
We do not think that the State Government was wrong in declining to equate the posts.
Nor do we
H
think that there was discrimination in doing so or Rule 12 under
which it was done was discriminatory.
A rule which provides for
..
•
'
STATE v. SERVICE ASSCN, (Hidayatullah, J.)
139
A
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
B
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, fail.
c
The appeal by the State Government must, in our opinion,
also fail.
Government seems to have acted under rules 10 and
12 which we quoted earlier, and has fixed a special pay for the
First Grade clerks.
The scale of pay which they enjoyed immediately before November 1, 1956 was Rs. 80-5-130. By an order
D made on October 12, 1960
(Resolution No. SR/INT/2159/
21365-F) the pay-scale of the post was raised to Rs. 100-8-140
but the order was to take effect from May l, 1960.
The Resolution is INT-2159/21365-F, dated 12th October, 1960 and reads:
E
G
"RESOLUTION :-Government had under consideration the question of equation of the post of 1st grade
clerk in the Revenue Department in Nagpur Division
with an equivalent post in former Bombay State.
After
considering all aspects relating. to the services, service
conditions, duties and responsibilities attached to the
post, Government has decided that the post of 1st grade
clerk need not be equated to any other post but the pay
scale attached to the post should be revised.suitably. The
pay-scale of Rs. 80-5-130 attached to the post of 1st
grade clerk in the Revenue Department in Nagpur Division should, therefore, be raised to that of Rs. 100-8-140.
2. These orders will take effect from 1-5-1960."
The short question is whether Government ought to have
made this scale operate from November 1, 1956 as in every other
H
case.
Government relies principally upon rule 10 and the words
of the rule "except where Government otherwise directs".
The
State Government contends that under the rule it was open to
Lt Sup· C.I/66-10
140
SUPREME COURT REPORTS
[1966] 2 S.C.R.
Government to fix the pay-scales of an allocated Government serA
vant not only from November 1, 1956 but also from any subsequent date.
This construction of the rule is erroneous.
The rule
indicated 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 allocated Government servant
B.
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 .:;ervice 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
C
of an equivalent post was to be given to him also from November
l, 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
I)
to make s~cial orders which were n9t in accordance with (i) and
(ii) of the rule. Both on the sense of the matter as well as on their
constru~tion, 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 E.
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 r:
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
G;
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, notwith·
standing 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 H
had not declared an equivalent post or had decided it was not
necessary to have declared an equivalent post, shall be the pay-
STATE v. SERVICE ASSCN. (Hida;yatul/ah, J.)
I 4l!
Ji.
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 prescribe. Here again, the old pay scale or the new pay·
scale, as the case may be, commences on November l, 1956. The
power which is conferred on Government to prescribe new payj
scale must be exercised from November l, 1956. This power
is intended to enable Government to make a change in the scale
of pay but not to change the date. November l, 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
C 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.
The appeal of the State Government must, therefore, -stand dismissed. Both the appeals will be
D dismissed but in view of the circumstances there will be no order
as to costs.
Appeals dismissed •.