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Judgment
M.N. Rao, J.—Writ Appeal No. 1773 of 1988 by the Government of A.P., (second respondent in the writ petition) is from the judgment of the learned single Judge in Writ Petition No. 5415 of 1981/by which the claim of the first respondent (writ petitioner) was allowed and a Mandamus was issued directing the State Government and the High Court to pay full arrears of salary and allowances to the writ petitioner from the date of his promotion and revise his pension in the light of the revised pay and allowances. A time limit of three months was also set for effecting the revision in his pension. The petitioners in Writ Petition No. 3917 of 1989 and the first respondent in Writ Appeal No. 1773 of 1988 are similarly circumstanced. In view of the commonality of the questions that fall for consideration in W.P. No. 3917 of 1989 and W.A. No. 1773 of 1988, they are disposed of by this common judgment.
The first respondent in W.A. No. 1773 of 1988 and the petitioners in W.P.No. 3917 of 1989 are retired District and Sessions Judges. They all joined service in the erstwhile State of Hyderabad as District Munsifs prior to 1-11-1956 and all of them were allotted for service in the State of A.P. with effect from 1-11-1956 by virtue of the provisions of Section 115 of the States Re-Organisation Act, 1956 (for short ''S.R. Act''). The Central Government was empowered by Sub-section (5) of Section 115 of the Asst. Secretary to Govt. vs. A. Venkata Rao (M.N. Rao, J.) (D.B.) 441 S.R. Act to establish one or more Advisory Committees for the purpose of assisting it in regard to-
"(a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras ; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons."
Sub-section (7) of Section 115 of the S.R. Act saves the various provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. But the proviso lays down that the conditions of service applicable immediately before the appointed day to the allotted employees shall not be varied to their disadvantage except with the previous approval of the Central Government. Section 117 of the S.R. Act confers power on the Central Govt. to issue directions at any time before or after the appointed day (1-11-1956) for the purpose of giving effect to the provisions of Part X of the S.R. Act (Sections 114 - 118) and the State Govt. shall comply with such directions.
A final common gradation list of the officers working as Sub-Judges and District Munsifs was issued on April 21, 1966 (in G.O.Ms. No. 501 General Administration) indicating the ranks assigned to the Sub-Judges and District Munsifs in accordance with the decision of the Government of India under the proviso to Sub-section (7) of Section 115 of the S.R. Act giving it retrospective effect from 1-11-1956. The judicial officers belonging to the erstwhile State of Hyderabad and allotted to the State of Andhra Pradesh on 1-11-1956 (hereinafter referred to as the ''allotted officers'' which term comprehends the petitioners in W.P. No. 3917 of 1989 and the first respondent in W.A. No. 1773 of 1988 made several representations to the State Government and the High Court of A.P. taking objection to the ranks assigned to them in the common gradation list and claiming seniority over certain Andhra Officers, who, according to them, were juniors in the equated posts as on 1-11-1956 and on that basis requested for promotion to the next higher posts. As their representations proved to be of no avail, some of the allotted officers, including eight of the petitioners in W.P. No. 3917 of 1989, filed a writ petition No. 3458 of 1969 seeking a Mandamus claiming seniority over certain officers belonging to the Andhra region and for a declaration that the common gradation list was invalid and for consequential benefits with retrospective effect. A Division Bench of this Court comprising Gopal Rao Ekbote, J., (as he then was) and Sriramulu, J. allowed the same with a direction to the High Court to consider the case of the petitioners for promotion and readjust the common seniority list, (reported in Sathya Kumar and Others Vs. The state of Andhra Pradesh and Others, The Division Bench expressed the view that.
"................................this Court can direct the High Court to consider the fitness of the petitioners for their promotion on the dates when juniors to them were in fact promoted. The High Court would upon such consideration promote them as from the dates when they were entitled to be promoted according to the Rules governing them. We have no reason to suppose that the High Court will not consider and decide their cases in the light of what is stated above. We cannot therefore without providing an opportunity to the High Court proceed to decide upon their places in the seniority list of Sub-Judges".
The Division Bench in unequivocal terms rejected the objection based on the ground of laches raised on behalf of the State Government that the writ petition should be thrown out. In compliance with the above Mandamus issued by the Division Bench, the common gradation list was revised by the High Court. So far as the other government officers affected by the S.R. Act were concerned, the State Government issued a U. O. Note No. 43206/B/571/F.R.II/77 dated 1-7-1977 by which publication of the final list was approved and certain guidelines were evolved for fixation of pay and payment of arrears consequent upon adjustment of seniority and granting of notional promotions. As regards the claim for monetary benefits is concerned, the U.O. note inter alia, stated:
"Monetary benefits arising out of pay fixation under these instructions be for the duty periods in the post concerned. No arrears would be admissible for the notional duty periods. "
The High Court in its order dt. 10-3-1981 in Roc No. 1136/81-B Spl. adopted the above instructions for denying the monetary benefit to the allotted officers whose ranks in the common gradation list were adjusted to their benefit and notional promotions were ordered. The order of the High Court dated 10-3-1981 inter alia states:
"......Monetary benefits arising out of pay fixation under these instructions should be for duty periods and arrears will not be admissible for notional duty periods.. .. .. .. .. .. .. .. ..
The High Court accordingly considered the claims for promotions of officers from the District Munsifs to Sub-Judges on the basis of the common gradation list and it was held that prior to States Reorganisation, promotion of District Munsifs to Sub-Judges in the erstwhile Hyderabad State was made on the basis of seniority and not merit-cum-ability as in the Andhra region and that this right should not be altered to his detriment without the concurrence of the Central Government u/s 115 of the S.R. Act.
Keeping in view of the above and on consideration of the Government U.O. Note first read above, the High Court is pleased to review the promotions of Subordinate Judges and hereby notionally promotes the officers mentioned in Col. No. 4 of the Annexure with effect from the date mentioned in Column No. 2 on the basis of seniority, as contained in the common gradation list of District Munsifs."
The allotted officers concerned in these two cases retired from service on attaining superannuation about ten years ago and it is stated across the Bar that three of them have also expired. A. Venkata Rao, first respondent in Writ appeal filed W.P. No. 5415 of 1981 claiming monetary benefit for the period covered by notional promotion and on that basis sought revision of pension. His plea was opposed by the State Government by taking the stand that he did not actually hold the office for the period in question and he was not entitled to claim any arrears of salary or other monetary benefits. The writ petition was allowed by a learned single Judge taking the view that as the officer in question was denied promotion wrongly, he was entitled to the monetary benefits. The contention put forth by the State Government that F.R. 26 (aa) was a bar to payment of arrears of salary in cases where notional promotions were ordered was rejected by the learned single Judge holding that such a denial was arbitrary. The same relief is claimed by the petitioners in W.P. No. 3917 of 1989.
The common question that falls for consideration is:
Whether the State Government can deny the monetary benefit to officers whose ranks in the seniority list were adjusted and notional promotions were effected as a result of review of the common gradation list which attained finality under the provisions of the S.R. Act?
Sri K. Pratapa Reddy, learned counsel appearing for the petitioners, contends that as the common gradation list was finalised in compliance with the directions issued by the Government of India u/s 117 of the S. R. Act, the State Government was bound to implement the common gradation list. Mere granting of notional promotion would not amount to effective implementation. Implicit in the alteration of the ranks in the seniority list was the right of the allotted employees to claim promotions with retrospective effect, i.e., with effect from the dates on which they would have got promotions if only their ranks in the seniority list were correctly fixed in the first instance. Delay on the part of the authorities in finalising the common gradation list should not result in deprivation of monetary benefits to the allotted officers. In opposition to this, the learned Advocate-General contends that as the officers in question did not actually work in the higher posts they have no right to claim the monetary benefits. In support of this, he relies upon the provisions in the Fundamental Rules and the Hyderabad Civil Services Regulations.
The officers in question are governed by the Hyderabad Civil Services Regulations as they were recruited in the erstwhile Hyderabad State. The Government of A.P., in G.O.Ms. No. 163 Finance & Planning (Fin. Wing FR. I) Department dated 30-6-1978 inserted Sub-rule (aa) in Rule 26 of the Fundamental Rules and Sub-rule (aa) in Rule 40 of the Hyderabad Civil Services Regulations. Both the Sub-rules are in identical terms and they are as follows:
"(aa) The pay of a Government servant whose date of seniority/ promotion has been revised and fixed from an earlier date, pay may be refuted on the basis of notional duty in the post from time to time. For this purpose the period for which the Government Servant concerned would have officiated in the higher post if he had been promoted actually on that date may be reckoned and weightage for only such period given from the notional date of promotion. The non-qualifying periods like extraordinary leave, suspension, etc., should also be deducted from this period.
Note 1:-Monetary benefit arising out of refixation as above, shall be limited to the duty periods and arrears shall be payable only for the period during which the Government Servant actually discharged the duties of the post. Arrears shall not be payable for the notional duty periods assigned as a result of revision of seniority position.
Note 2-While a Government servant who is already promoted before the revision of his seniority and who is assigned an earlier date of promotion, shall be allowed arrears resulting from the pay fixation, in manner set out in Note 1 above for the period during which he actually discharged the duties of the post, and in the case of a Government servant who has been promoted before the revision of seniority but is promoted after the review, he shall be allowed monetary benefit of pay fixation, from the date of promotion only.
Note 3:-In the case of a Government servant who has already retired or died before the revision of his seniority and fixation of pay, the arrears shall be payable in the manner indicated in Note 2 above. Pensionary benefits shall also be revised on the basis of the notional pay fixation in the manner indicated in Note 2 above and the monetary benefit of pension/family pension or death-cum-retirement gratuity as the case may be, shall be allowed from the date of retirement/death".
The common gradation list of the judicial officers in the State of A.P. was finalised in accordance with the principles evolved by the Government of India under the S.R. Act. After the formation of the State of A.P, the officers in question would have got promotions long ago to the next higher posts based upon the ranks allotted to them in the common gradation list. Unfortunately unduly long time was taken for finalisation of the common gradation list. The fault in this regard did not lay with the allotted officers. They have been making representations demanding justice. It was only after the Division Bench issued a Mandamus in Sathya Kumar''s case (1 Supra) revision of the seniority list was taken up. When once an officer was assigned a rank in the common gradation list as per the directions of the Government of India under the provisions of Section 117 of the S.R. Act, he is entitled to all the consequential benefits. In State of Maharashtra Vs. K.S. Rana and Others, it was held by the Supreme Court that.
"According to Section 117 of the Act, the State Government does not have any power to act independently; it has to comply with the directions issued by the Central Government."
The Central Government''s power u/s 117 of the S.R. Act has over-iding effect vis-a-vis any provision contained in any of the rules made by the State Government. In C.P. Damodaran Nayar and P.S. Menon Vs. State of Kerala and Others, the Supreme Court ruled that the Madras State Judicial Service Rules have no application to the cases governed by the decisions rendered by the Central Government under the provisions of the S.R. Act and that the officers in whose favour the Government of India rendered the decision adjusting their seniority in their favour "should get the consequential benefits to which they may be entitled by virtue of this assignment." The words "consequential benefits", we have no doubt, clearly comprehend monetary benefits.
The provisions of F.R. 26 or Rule 40 of the Hyderabad Civil Services Regulations have no application to cases falling within the ambit of the S.R. Act. Conceivably there could be cases where grant of notional promotion should not legitimately give rise to a valid claim for payment of arrears of salary either on the ground that the officer did not actually hold the post at the relevant time or otherwise. But the same cannot by any stretch of reasoning be pressed into service in defence of the State action in denying the monetary benefits to the officers in question. A wrong that was perpetrated against them was righted after an unduly long period of time and, therefore, denial of monetary benefits to them would be clearly arbitrary attracting the inhibition of Article 14 of the Constitution.
Viewed from another point of view also, the said action cannot be justified. Right to promotion is a necessary ingredient of the fundamental rights guaranteed under Article 16(1) of the Constitution. "Other matters relating to employment", ruled a Constitutional Bench of the Supreme Court in The General Manager, Southern Railway Vs. Rangachari, .
"would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression "matters relating to employment."
The allotted officers in question would have definitely got promotion to the next higher posts in the normal course had their seniority been fixed in accordance with the guidelines issued by the Government of India under the provisions of the S.R. Act. Denial of promotion to them would undoubtedly be a violation of their guaranteed fundamental right under Article 16(1) of the Constitution. Having denied them their promotion when it was due to them, the State Government had taken remedial measures by effecting notional promotions in their favour and so the State Government is bound to pay the employees the arrears of salary and other monetary benefits which they would have got had they been promoted at the relevant time.
The contention advanced by the learned Advocate-General that the provisions contained in F.R. 26(aa) and Rule 40 (aa) of the Hyderabad Civil Services Regulations disentitle the petitioners to claim monetary benefits is clearly untenable for the reasons stated supra.
For the foregoing reasons, we would confirm the view taken by the learned single Judge and dismiss W.A. No. 1773 of 1988 and allow W.P. No. 3917 of 1989 and issue a Mandamus as prayed for. We also make it explicit that the benefit of this Mandamus should accrue to all the allotted officers covered by the Annexure to the order passed by the High Court in Roc. No. 1136/81-B. Spl. dated 10-3-1981 and the legal representatives of the officers who are no more. This Direction shall be implemented within two months from the date of receipt of this judgment. No Costs.