1977 Supreme(SC) 4

SUPREME COURT OF INDIA
Y.V. CHANDRACHUD AND P.N. SHINGHAL, JJ.
The State of Maharashtra and another, Appellants
Versus
Vinayak, Respondent.
Civil Appeal No. 651 of 1976,
D/- 6-1-1977.
Advocates appeared
Mr. M. N. Phadke, Sr. Advocate, (M/s Girish Chandra and M. N. Shroff, Advocates with him), for Appellants; Mr. S. V. Gupte, Sr.Advocate, (M/s N. Kamalakar and A. G. Ratnaparkhi Advocates with him), for Respondent.

Headnote:

States Reorganization Act - Section 115 (7) - Allocated Government Servants Rules 1957 - Post of an Agricultural Officer – Employment and service - Restricts right of allocated government servant - Whether respondent is entitled to arrears of pay with effect from date on which he would in the normal course have been promoted if his seniority were recognized as it eventually came to be recognized under seniority list approved by Central Government - Whether rights of respondent are governed by the circular or by circular - Whether in cases in which Government servants who were superseded for promotion to higher post are later promoted on orders of higher authorities who consider supersession unjustified and who having powers to set aside order of supersession do so their promotion should be effective from date on which they are actually promoted or from date they should have been promoted had they not been wrongly superseded - A provisional combined seniority list of Agricultural Assistants Grade II was published by the Government - That list was revised from time to time, and ultimately Government of India approved the final seniority list which came to be published - 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 State Government he was erroneously accorded a lower place of seniority with result that persons who were in fact junior to him came to be promoted on the assumption that they were senior to him - Respondent therefore filed the present writ petition on October asking for due recognition of his seniority - He later amended that petition and asked for arrears of pay and allowances retrospectively from date on which he ought to have been promoted in accordance with the seniority list approved by Central Government - Writ petition having been allowed by Bench of Bombay High Court State has filed this appeal by special leave - Sole question which arises for determination in this appeal is whether respondent is entitled to arrears of pay with effect from date on which he would in normal course have been promoted if his seniority were recognized as it eventually came to be recognized under seniority list approved by Central Government – Held, Government is pleased to direct that seniority and initial pay on promotion according to final gradation list should be fixed as if Government servant had been promoted on date on which he would have been promoted had the gradation list been finalized on November - Date on which he would have been promoted should be admitted on 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 seniority and initial pay of the respondent has to be fixed as if he was promoted on date on which he would have been promoted if the gradation list had been finalized on November - But no arrears of pay can be paid to him for the period prior to the date of actual promotion - State Government relied upon this circular by their counter affidavit filed in the High Court but no challenge was made by the respondent to vires or the validity of that circular even though he had his petition amended in order to ask for arrears of salary - On assumption that the circular is within the powers of State Government court have no doubt that respondents case must fall 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 - Appearing on behalf of the respondent relies upon Rule 21 of Allocated Government Servants Rules, 1957 and argues that since under that rule respondent is entitled to draw his pay and allowances with effect from date of his promotion to higher post including deemed date of promotion Government of Maharashtra has no power, in view of the proviso to Section 115 (7) of the States Reorganization Act to alter his conditions of 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 circular issued by State Government falls within mischief of the proviso to Section 115 (7) - By Rule 21 arrears of pay and allowances which may become due to an allocated government servant on fixation of his pay as on November shall be payable only with effect from the date from which he became available for service in 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 other hand it restricts the right of the allocated government servant to receive pay and allowances only with effect from date from which he became available for service in State of Bombay or would have been so available except for causes mentioned in Rule 2 (d) - Circular issued by Government of Maharashtra on February does not take away from the respondent right if any which was available to him under Rule 21 - Appeal allowed