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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: MINISTERIAL SERVICE ASSOCIATION

DATE OF JUDGMENT: 08/10/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  625            1966 SCR  (2) 134

ACT: States   Reorganisation  Act  (37  of  1956),  s.  115   and Allocated,  Government Servants (Absorption, etc.) Rules  of Bombay, 1957, rr. 10 and 12 Scope of.

HEADNOTE: 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 were 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 1st 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 Karkuns in the former State of Bombay or in the  alternative for directing the Government to fix the revised scale of pay from  1st November 1956 on which date the Act  took  effect, instead  of  1st  May, 1960.  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  1st November, 1956 and not 1st  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 or  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 allocated Government servant not  only from  1st November, 1956, but also from any subsequent  date because  the  words  of the rule  "except  where  Government

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otherwise directs". HELD:     (i)  The  duties of A val Karkuns  in  the  former State  of  Bombay were entirely different from  those  which first  grade  clerks  performed and 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  multifariousness  of  the  posts  existing  in  the different  components  from which  the  principal  successor State was formed and because, some existing posts could  not be  equated with posts in the principal successor State  and had to be treated on an independent footing. [139 A]                             135 (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 1st November, 1956,  but  to enable  Government to make special orders which were not  in accordance with cls. (i) and (ii) of 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  1st November, 1956.  Every one of the rules, 14 to 19 and r.  23 mention over and over again that the new scales of pay shall be  as on or from 1st November, 1956.  The intention was  to enable  Government to make a change in the scale of pay  but not  to  change the date of 1st November,  1956,  which  was always the fixed date line. [140 F-G]

JUDGMENT: 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. Achar, 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). 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 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 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 Maharashtra)   under   ss.  115  and  116  of   the   States Reorganization  Act,  1956 (Act 37 of 1956)  read  with  the Allocated Government Servants (Absorption, Seniority, Pay  & Allowances)  Rules  1957.  As a first step  the  petitioners asked  that Government Resolution No. SR/INT/ 1057/VI  dated

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October 21, 1957, together with Item No. 8 and Note 5 of the Statement accompanying that resolution, should be 136 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, 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 1, 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 effectuate  the latter part of the order of the  High  Court issued.   The High Court, however, certified the case  under Art. 132(1) and curiously enough under all the three clauses of  Art. 133 of the Constitution and the two  rival  appeals have, therefore, been filed 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 1 16 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 sections  in detail  They  provided  for the  establishment  of  Advisory Committees,  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 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 terms and their definitions have to  be borne  in mind.  Rule 2 of these Rules gives  definition  of "Allocated  Government servant" and "Equivalent  post".   By "allocated Government servant" is 137 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   the 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

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             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               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 Aval Karkuns was decided against  the  three original  petitioners  by the High Court  and  the  question whether  the  revised scales of pay should begin on  May  1, 1960  or on November 1, 1956 was decided against  the  State Government.   These appeals involve 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 post  for them and they submit that the  nearest  equivalent post  was 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

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post   need  not  be  equated  to  an  equivalent  post   is discriminatory.   In  our  judgment  neither  submission  is correct.  There is no question of discrimination because  it was  always possible 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  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 A val Karkuns as an  equivalent post  to that of First Grade clerks.  We do not  think  that the  State Government was wrong in declining to  equate  the posts.   Nor  do we think that there was  discrimination  in doing   so  or  Rule  12  under  which  it  was   done   was discriminatory.  A rule which provides for 139 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 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. 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 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 1,  1960.   The Resolution is INT-2159/21365-F,  dated  12th October, 1960 and reads:               "RESOLUTION:-Government   had   under   consi-               deration 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    respons ibilities               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 case.   Government relies principally upon rule 10  and  the words  of  the  rule  "except  where  Government   otherwise

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directs".  The State Government contends that under the rule it was open to Sup. CI/66-10 140 Government to fix the pay-scales of an allocated  Government servant  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 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 service 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 of an equivalent post was to be given to  him also  from  November  1, 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 to make  special orders which were not in accordance with (i) and (ii) of the rule.   Both on the sense of the matter as well as on  their construction,  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 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  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 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 had not declared an equivalent post or  had decided it was not necessary to have declared an  equivalent post, shall be the pay- 141 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 1, 1956.  The power which is conferred on  Government to prescribe new pay-scale must be  exercised from  November  1,  1956.  This powers  intended  to  enable Government  to make a change in the scale of pay but not  to change the date.  November 1, 1956 is always. the fixed date line.   The non-obstante clause, with which rule  12  opens,

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cannot  be  construed  to  this  effect.   It  is  obviously intended’  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 dismissed but in view of the circumstances there will be  no order as to costs. Appeals dismissed.- 142