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PETITIONER: MYSORE STATE ROAD TRANSPORT CORPORATIONBANGALORE

       Vs.

RESPONDENT: H.   VENKATARAMANAPPA

DATE OF JUDGMENT25/04/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SINGH, JASWANT PATHAK, R.S.

CITATION:  1978 AIR 1385            1978 SCR  (3) 721  1978 SCC  (3)   1

ACT: Seniority  in  and  claim  to  a  post-When  there  is   re- designation  of  posts in the  integrated  structure,  claim should be tested with reference to the post previously  held and  pay scale and the equated post and scale under the  new structure.

HEADNOTE: The  respondent  was  working  under  the  Mysore  Transport Department  as a Store Keeper in the grade of Rs.  75-5-100. Pursuant   to  the  State  Reorganisation  Act,  1956   some territories  belonging to the existing States of Bombay  and Hyderabad  were  merged  in the State  of  Mysore  and  this resulted  in  the  transfer of certain  employees  of  Hubli region of Bombay State and Raichur section of the  Hyderabad State  Road  Transport  department to the  services  of  the Mysore  State Road Transport Department.  The grades of  pay of  the  existing units were lower than the  grades  of  pay governing  the  incoming  transferred  units  which   caused considerable discontent among the employees of the  existing units.   Ultimately an Industrial Trace was signed on  10-1- 1958  which  was to become effective  from  1-4-1957,  under which  the scales of pay attaching to different  posts  were revised irrespective of the transport service the incumbents of  those posts bad come.  On 8-3-1958 the State  Government on  a  consideration of several factors, published  a  fresh equation of posts with corresponding scales of pay.  In this new dispensation, the post held by the respondent i.e. Store Keeper in the scale of 75-5-100 came to be equated with that of   an   Assistant  Store-Keeper  in  the  scale   of   Rs. 92-8-140-10-180.  The respondent gave his option to the  new scales  from 1-4-1957 and therefore his pay was fixed @  Rs. 132/-  in  the  scale of Rs.  92-180.   Thereafter,  he  was temporarily  promoted  as Store Keeper in the grade  of  Rs. 124-220  and  reverted  as Junior Assistant  and  was  again temporarily promoted as Store Keeper.  A writ petition filed by  the  respondent claiming seniority  as  Assistant  Store Keeper  under  the  new equation over  certain  others  were dismissed  in  1961.   The  respondent  then  filed  a  writ petition  that  he may be put in the scale of  Store  Keeper w.e.f. 1-4-1957 by virtue of the fact that the post which he

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held   was  designated  as  "Store-Keeper"  prior   to   the Industrial truce.  The Writ Petition failed before a  single Judge but was allowed by the Division Bench of the Karnataka High Court. Allowing the appeal by special leave the Court Per Fazal Ali J. (On behalf of Jaswant Singh and himself) HELD  : 1. The High Court over-looked two important facts  : (1)  that  the  post  of Store Keeper at  the  time  of  the industrial truce did not carry the same scale as the post of Store  Keeper  under the new dispensation  which  came  into existence on 26-6-1958 nor was this new post contemplated at the time when the industrial truce was signed which was  six months  before this event; (2) that the  respondent  himself has accepted the terms of the circular giving him the option and  had  chosen to opt for the new scheme as  a  result  of which  he was given the scale of Rs. 9.2-180 and his  salary fixed @ Rs. 132/- p.m. [724 F-G] (b)  The  grievance  of the respondent, if any,  was  purely illusory.   The substantive post held by the respondent  was below  the post of Store Keeper and until he had by  regular promotion  reached the higher post he could not claim to  be appointed  to the new post of Store Keeper which  carried  a higher scale, 722 namely  Rs. 124-220.  The mere fact that the respondent  had officiated on the post of Store Keeper in a purely temporary capacity  would not clothe him with a right to the  post  of Store Keeper.  In fact, the previous writ petition filed  by the respondent was dismissed by the High Court on the ground that  the  respondent could not claim any seniority  to  the post  of Store Keeper.  In these  circumstances,  therefore, neither  in law nor according to rules could the  respondent be   entitled  to  be appointed permanently to the  post  of Store Keeper. [724 G-H, 725 A] (c)  The  respondent could not claim the scale of  the  post which  was actually held by him after he had  exercised  his option and in this regard his equivalent post would be  that of  an  Assistant Store Keeper or a Senior  Assistant.   The post of a Store Keeper being a higher one could not be given to  the respondent until he earned it in due course  of  his promotion. [725 B-C] Per Pathak I.. (Concurring). 1.   (a)  The  High  Court  has  omitted  to  note  that  in considering  the  claim, of the respondent to  a  particular grade  of  pay,  the  terms of  the  Industrial  Truce  have perforce  to  be  applied in the light of  the  equation  of posts.   The  equation of posts effected  under  the  States Reorganisation Act constitutes a fundamental feature of  the employment  structure  in the Mysore  State  Road  Transport Department.   The equation of posts was necessitated by  the coming  together  into  one  department  of  employees  from different transport services hailing from different  regions and previously operating under different Governments.   Both the  revised grade of pay set forth in the Industrial  Truce and the newly determined equation of posts were inspired  by the  need to harmonise the terms and conditions  of  service between employees drawn from the different units. [727 C-D] (b)  The  High Court erred in considering the terms  of  the Industrial  Truce  only.  The High Court should  have  first determined  what  was  the equated post  in  the  integrated structure which corresponded to the post of Store Keeper  in the  Bangalore  Transport Service held  by  the  respondent. Having  decided what was the equated post in the  integrated structure,  the High Court should then have discovered  what was  the scale, of pay attaching to that post.  That is  the

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scale  of pay by which alone the respondent can  Jay  claim. [727 D-E] (c)  In as much as the post of Store Keeper in the Bangalore Transport  Service  with the grade of  Rs.  75-5-100  stands equated  with  the post of Assistant Store Keeper  with  the grade of Rs. 92-8-140-10-180, it is the latter post and  the grade of pay to which the respondent is entitled with effect from  April 1, 1957.  His claim that he should all along  be treated   as  holding  the  post  of  store  keeper   in   a substantive.  capacity, and to be paid, therefore,  on  that basis is without substance. [727E-F]

JUDGMENT: CIVIL,  APPELLATE  JURISDICTION : Civil Appeal No.  2484  of 1968. Appeal  by Special Leave from the Judgment and  Order  dated 22-3-1968 of the Mysore High Court in Writ Petition No. 1221 of 1965. S.   V.  Gupte, Attorney General and J. Ramamurthi  for  the Appellant. R. B. Datar and (Miss) Farhat Qadri for the Respondent. The Judgments of the Court were delivered by FAZAL  ALI,  J.-This  appeal by special  leave  is  directed against the judgment of the Karnataka High Court dated  22nd March, 1968 and arises in the following circumstances. The  appellant  was an employee of the  Bangalore  Transport Company  and entered service as far back as 1944.   On  28th September,  723 1956 the Bangalore Transport Service Act was passed by which the  Bangalore  Transport  Company was  taken  over  by  the Government.   Nearly a month later, that is on 1st  October, 1956, the Company became a department of the Government  and at that time the respondent was working as Junior  Assistant in the grade of Rs. 75-5-100.  On the reorganisation of  the States  on 1st November, 1956 various employees  from  other regions  were  transferred  to  the  Mysore  Road  Transport Corporation  and  various units were  amalgamated  with  the Mysore Government Transport Department.  In view of the  new dispensation  it became necessary to bring about  a  radical change in the pay structure of the employees.  Ultimately  a settlement was arrived at and an industrial truce was signed on 10th January, 1958 which was to become effective from 1st April,  1957 and the respondent was placed in the  grade  of Rs.  92-8-180.  At this time the designation of the post  of the  respondent  was  that of a Store Keeper.   On  the  8th March, 1958 the State Government after a consideration of  a large number of factors published a fresh equation of  posts with corresponding scales of pay.  In this new  dispensation the post held by the respondent came to be equated with that of an Assistant Store Keeper.  On 26th June, 1958 the Mysore ’Government Road Transport ’Department hereinafter  referred to as M.G.R.T.D. issued option forms to the employees to opt for  the  new scales if they so like with  effect  from  1st April, 1957.  In consequence of this arrangement a  circular No. 12 of 58 dated 26th June, 1958 was issued which m2y be extracted thus :-               "As  per  Clause  7 of  the  Industrial  Truce               signed  on 10th January, 1958,  all  employees               shall  have the option to come on to  the  new               pay  scales or to remain on their present  pay               scales with effect from 1st April, 1957.               Unit Heads are therefore instructed to  inform

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             all  the employees to declare their option  on               the basis of the provisional equation of posts               by executing the printing forms sent herewith.               In  case  any changes are made  in  the  final               equation,  the affected persons will be  given               the right to revise their option if they  find               that  they  are  adversely  affected  by   the               ,changes made.               Upon the staff exercising the option the  Unit               Heads  of Hubli, Belgaum, Bijapur and  Raichur               will  arrange  to refix the  salaries  of  the               staff in the categories mentioned in  Circular               Letter No. 8 of 1958.  In the case of staff of               B.T.S. and Bangalore Divisions, the Unit Heads               will  arrange to refix the, pay of  all  staff               with  weightage and give effect to these  from               1st July, 1958.  The arrears which will be due               to  staff on account of the refixation of  pay               with  weightage  in the case  of  Bangalore  &               B.T.S.  Divisions and fixation of pay  in  the               case  of  those  in  the  categories  of   Ex.               Hyderabad  and  Ex.  B.S.R.T.C.  mentioned  in               Circular  8 of 1958 will pend finalisation  of               equation of posts,               724               All  payments  made will  be  provisional  and               subject  to the necessary adjustments  on  the               finalisation of equation "of posts." It  is  not disputed that the respondent chose to  abide  by this  circular  and exercised option in favour  of  the  new scale and accordingly his pay was fixed at Rs. 132/- in  the scale  of  Rs.  92-180.   Thereafter,  the  respondent   was temporarily  promoted  as Store Keeper and was  reverted  as Junior Assistant and was again temporarily promoted as Store Keeper.  On 1st August, 1961 the appellant corporation  came into  existence and on 12th December, 1961 a petition  filed by  the  respondent claiming seniority  as  Assistant  Store Keeper  under  the  new equation  over  certain  others  was dismissed.   Two  years thereafter the  respondent  filed  a petition in the High Court of Karnataka praying that he  may be  put in the scale of Store Keeper with effect  from  1-4- 1957  and  a writ of mandamus be issued  for  enforcing  the terms  of  the industrial truce regarding the scale  of  the respondent.   The  writ petition failed  before  the  Single Judge but was allowed by the Division Bench which issued the writ  as  prayed for.  The State moved the  High  Court  for grant  of  a certificate of fitness for leave to  appeal  to this  Court  which  having been refused  the  appellant  got special leave from this Court and hence this appeal. The  short point contended by the Attorney General was  that in  the new dispensation the post of Assistant Store  Keeper was  equivalent  to the post of others Keeper which  was  in existence at the time when the industrial truce was  entered into and, therefore, the respondent could have no  grievance if  he was given the equivalent post and scale  particularly when  he chose to opt for the new scale under the  new  dis- pensation.  The Division Bench of the High Court appears  to have  gone on the bare description of the post held  by  the respondent  at the time of the industrial truce rather  than the  substance  of it.  The High Court thought that  if  the respondent was a Store Keeper until the industrial truce  he should  have been appointed as Store Keeper even  under  the new  dispensation, In coming to this finding the High  Court seems to have overlooked two important facts : (1) that  the post of Store Keeper at the time of the industrial truce did

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not  carry the same scale as The post of Store Keeper  under the new dispensation which came into existence on 26th June, 1958,  nor was this new post contemplated at the  time  when the industrial truce was signed which was six months  before this event, (2) that the respondent himself had accepted the terms of the circular extracted above and had chosen to  opt for  the  new scheme as a result of which he was  given  the scale  of Rs. 92-180 and his salary was fixed at Rs.  132.00 p.m.  Thus  the  grievance of the respondent,  if  any,  was purely  illusory.   The post substantive post  held  by  the respondent  was below the post of Store Keeper and until  he bad  by regular promotion reached the higher post  he  could not  claim to be appointed to the new post of  Store  Keeper which carried a higher scale, namely, Rs. 124-220.  The mere fact that the respondent had officiated on the post of Store Keeper in a purely temporary capacity would not clothe,  him with  a  right  to the post of Store Keeper,  In  fact,  the previous writ petition filed by the. 725 respondent  was  dismissed by the High Court on  the  ground that  the  respondent could not claim any seniority  to  the post  of Store Keeper.  In these  circumstances,  therefore, neither  in law nor according to rules could the  respondent be entitled to be appointed permanently to the post of Store Keeper.   Mr. Datar appearing for the  respondent  submitted that  since  under the industrial truce the  post  of  Store Keeper  was created and given to the respondent he  must  be deemed  to  have  been duly promoted to the  post  of  Store Keeper  in the new dispensation.  This argument  however  is based  on a serious misconception of the previous  history and  the  facts mentioned above.  The respondent  could  not claim  the scale of the post which was actually held by  him after  he  had exercised his option and in this  regard  his equivalent  post would be that of an Assistant Store  Keeper or  a Senior Assistant.  The post of a Store Keeper being  a higher  one  could not be given to the respondent  until  he earned  it  in  due course of his  promotion.   We  do  not, therefore, find any substance in the argument of the learned counsel for the respondent. It  was  secondly urged by counsel for the  respondent  that even  though he was officiating in a temporary  capacity  as Store Keeper he was not given the same salary as  admissible to  Store Keeper during the period of his  officiation.   No such plea appears to have been taken by the appellant either in  the High Court or in his petition for special  leave  in this  Court.   Moreover, the Attorney General  showed  us  a chart of the pay drawn by the respondent which shows that he did  get  the  full  pay of a  Store  Keeper  while  he  was temporarily  promoted  as  such.   For  these  reasons  this contention is also overruled. For  the reasons given above, the appeal is allowed and  the order of the High Court dated 22nd March, 1968 is set  aside and  the writ petition filed by the respondent in  the  High Court is dismissed.  In view of the order, granting  special leave costs are to be paid by the appellants. PATHAK,  J.-I agree that the appeal should be allowed.   The respondent joined as Assistant Store Keeper in the Bangalore Transport Company in 1944.  In 1950, he was promoted to  the post  of  Store Keeper in the grade of Rs.  75-5-100.   Some years  later  on  October 1, 1956, the  undertaking  of  the Bangalore  Transport  Company was taken over by  the  Mysore State  Government  and operated as the  Bangalore  Transport Service.   The  respondent  became a  Store  Keeper  in  the employment   of   the  Mysore  Government   Road   Transport Department  by  virtue of Section 8 of  the  Bangalore  Road

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TransPort Service Act, 1956 on the same terms and conditions of  service as enjoyed by him before.  On November 1,  1956, pursuant  to  the  States  Reorganisation  Act,  1956   some territories  belonging to the existing States of Bombay  and Hydrabad   were   merged  in  the  State  of   Mysore.    In consequence,  with effect from January 1, 1957  certain  em- ployees  of  the  Hubli  region of  the  Bombay  State  Road Transport  Corporation  and of the Raichur  Section  of  the Hyderabad   Government   Road  Transport   Department   were transferred  to  the service of the Mysore  Government  Road Transport  Department.  The grades of. pay of  the  existing units were lower than the grades of pay governing 726 the  incoming  transferred units, and apparently  there  was considerable discontent among the employees of the  existing units-.   Ultimately,  an Industrial Truce  was  reached  on January 1, 1958, under which the scales of pay attaching  to different  posts were revised irrespective of the  transport service  from which the incumbents of those posts had  come. A  Store Keeper and a Senior Assistant were given the  grade Rs.  1248-140-10-220, and a Junior Assistant was  given  the grade  Rs.  92-8-140-10-180.   It may be  mentioned  that  a Junior Assistant attached to the Store Section is  described as  an  Assistant  Store Keeper.  The scales  were  to  take effect  from April 1, 1957.  Clause 7 of the Truce  declared that "all employees shall have the option to come on to  the new  pay  scales or to remain on their present  pay  scales, with  effect from 1-4-1957." Concurrently, proceedings  were also under way for the equation of posts with a view to com- pleting   the  process  of  integration  of  the   transport employees  under the States Reorganisation Act.   The  final equation  of posts was published on March 8, 1958,  and  the employees were informed that the option was to be  exercised on  the basis of this equation.  According to the  equation, the post of Store Keeper in the Bangalore Transport  Service with the grade Rs. 75-5-100 stood equated with the new  post of  Assistant Store Keeper with the grade  Rs.  92-8-140-10- 180.  It  is  relevant  to note  that  this  was  the  grade attaching to the post    of  Assistant Store Keeper  in  the Bombay State Road Transport Corporation.  Plainly, the  post of  Store  Keeper held by the respondent  in  the  Bangalore Transport  Service in the grade Rs. 75-5-100  stool  equated with  the  post  of  Assistant  Store  Keeper  (i.e.  Junior Assistant) with the grade Rs. 92-8-140-10-180. On  June  26,  1958, the Mysore  Government  Road  Transport Department  issued  a  circular  letter  to  all  employees, pursuant to clause 7 of the Industrial Truce, declaring that they  had the option to come on to the new pay scales or  to remain on their present pay scales with effect from April 1, 1957.  Reference was made to the equation of posts which had already  been  effected.  It was in this  context  that  the respondent  exercised his option on September 8,  1958,  and having  regard  to  the  terms  in  which  the  option   was expressed, the only inference which can be reasonably  drawn is that he opted for the new scales of pay, and on the basis of the equation of posts.  That necessarily  implies that he accepted  the  scale of pay attaching to  the  corresponding equated post of Assistant Store Keeper.  It may be mentioned that subsequently an order dated October 4, 1958 was  issued by  the  Mysore  Road  Transport  Department  promoting  the petitioner, who was described therein as an Assistant  Store Keeper. temporarily to officiate as Store Keeper on the  pay scale  attaching to that post.  On January 6, 1959,  be  was reverted to his substantive post of Assistant Store  Keeper. On March 3, 1959, be was again temporarily promoted to  the.

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post of Store Keeper. On   August  1,  1961,  the  Mysore  State  Road   Transport Corporation  was  brought into existence  and  the  existing transport   services  forming  par’.  of  the  Mysore   Road Transport Department were absorbed as transport services  of the  Corporation.  The respondent was aggrieved by  the  pay granted to him.  He claimed the higher pay scale attached  727 to the post of Store Keeper.  The claim was repelled on  the ground that the respondent held the post of Assistant  Store Keeper  on  a substantive basis and not the  post  of  Store Keeper.   He  filed  a writ petition in the  High  Court  of Mysore  contending  that he held the post  of  Store  Keeper substantively  and  he should be paid the higher  pay  scale attaching  to that post.  The writ petition was  allowed  by the  High  Court of Mysore on March 22, 1968.   The  learned Judge&  of  the  High  Court held that in  as  much  as  the respondent held the post of Store Keeper on the date of  the Industrial Truce, he was entitled to, continue in that  post and to enjoy the revised pay scale pertaining to that  Post. The petitioner Corporation obtained special leave to appeal, and leave being granted this appeal is now before us. It is clear that the High Court has omitted to note that  in considering  the  claim of the respondent  to  a  particular grade  of  pay,  the  terms of  the  Industrial  Truce  have perforce  to  be  applied in the light of  the  equation  of posts.   The  equation of posts effected  under  the  States Reorganisation Act constitutes a fundamental feature of  the employment  structure  in the Mysore  State  Road  Transport Department.   The equation of posts was necessitated by  the coming  together,  into one. department, of  employees  from different transport services hailing from different  regions and previously operating under different Governments.   Both the  revised grade of pay set forth in the Industrial  Truce and the newly determined equation of posts were inspired  by the  need to harmonise the terms and conditions  of  service between employees drawn from the different units.  The  High Court erred in considering the terms of the Industrial Truce only.  The High Court should have first determined what  was the   equated  post  in  the  integrated   structure   which corresponded  to the post of Store Keeper in  the  Bangalore Transport  Service by the respondent.  Having  decided  what was  the equated post in the integrated structure, the  High Court should then have discovered what was the scale of  pay attaching  to that post.  That is the scale of pay to  which alone the respondent can lay claim.  In as much as the  post of Store Keeper in the Bangalore Transport Service with  the grade Rs. 75-5100 stands equated with the post of  Assistant Store  Keeper with the grade Rs. 92-8-140-10-180, it is  the latter post and the grade of pay to which the respondent  is entitled with effect from April 1, 1957.  His claim that  he should  all  along be treated as holding the post  of  Store Keeper  in  a substantive capacity, and to be  paid,  there- fore,  on that basis is without substance.  It is  worth  of note that in an earlier writ petition (writ petition No. 435 of  1961)  filed  by the respondent in  the  High  Court  of Mysore,  he  claimed seniority over other employees  of  the Mysore  Government Road Transport Department, and  in  their judgment  dismissing  the writ petition the  learned  Judges observed  that the respondent was an Assistant Store  Keeper "under the new dispensation". Towards  the  end,  it was faintly urged on  behalf  of  the respondent that an order should be made by us requiring  the appellant to make payment to the respondent on the basis  of the  scale of pay attaching to the post of Store  Keeper  at

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least  for  the  period  during  which  he  held  that  post temporarily under the new dispensation.  On the material 728 placed  ’before  us, it is clear that no such order  can  be granted.   The respondent has in fact been paid during  that period on the basis of which he lays claim. Accordingly,  the appeal is allowed, the order of  the  High Court  dated  March  22,  1968 is set  aside  and  the  writ petition  is  dismissed.  However; in  accordance  with  the order  of this Court granting special leave to  appeal,  the appellant  shall  pay  to the respondent his  costs  of  the appeal. S.R.                            Appeal allowed 729