Filling Up Vacant Post And Absorption Of Surplus Employee Can't Be Conflated, Surplus Employee Not Entitled To Absorption To Higher Post: Supreme Court
A Lecturer disengaged upon being declared surplus was absorbed on the post of Head of Department.
While holding an employee entitled to absorption on the post of Lecturer in the Institute of Civil and Rural Engineering, Gargoti, the Supreme Court has held that filling up a vacant post and the question of absorption of a surplus employee are governed by distinct considerations and cannot be conflated.
The Court also held that equivalence of pay scales, by itself, cannot alter the nature of the post against which an employee is to be absorbed under a policy governing surplus employees.
The Apex Court was considering an appeal against the judgment of the Bombay High Court whereby the Writ Petition filed by the first respondent seeking his absorption on the post of Head of Department (Civil Engineering) in the Institute of Civil and Rural Engineering, Gargoti (third respondent) was allowed.
The Division Bench of Justice Ahsanuddin Amanullah and Justice R. Mahadevan held, “The High Court, in our view, also erred in proceeding on the basis that the equivalence of the pay scales attached to the posts of Lecturer and Head of Department entitled respondent no.1 to direct absorption on the latter post. Equivalence of pay scales, by itself, cannot alter the nature of the post against which an employee is to be absorbed under a policy governing surplus employees.”
Advocate Aniruddha Deshmukh represented the Appellant while Advocate Pranjal Chapalgaonkar represented the Respondent.
Arguments
The case as set up by the appellants was that pursuant to the Government Resolution of 2001, the first respondent-Writ Petitioner was declared surplus and disengaged from service. Under the policy of the State Government, surplus employees who had been disengaged were liable to be absorbed against equivalent posts available in any other Institution/College of the same category. It was contended that at the relevant point of time, the first respondent was entitled to be absorbed on the post of Lecturer, being the post from which he had been disengaged upon being declared surplus.
It was the case of the respondent that the High Court correctly held that the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 prescribed seniority as the relevant criterion for appointment to the post of Head of Department and that the pay scale attached to the posts of Lecturer and Head of Department was the same. It was contended that once the respondent fulfilled the requisite criterion, his absorption ought to have been made directly on the post of Head of Department.
Reasoning
On a perusal of the facts of the case, the Bench noted that the High Court proceeded on the erroneous premise that merely because the respondent fulfilled the criteria for appointment as Head of Department, he was consequently entitled to be absorbed against that post. “In our considered opinion, this is the fundamental error in the impugned order”, it stated.
The Bench noted that under the policy of the State Government, a surplus employee who had been disengaged was required to be absorbed against the post from which he had been declared surplus, or an equivalent post, or, depending upon availability, a lower post. As per the Bench, the policy governing absorption could not be invoked to confer upon such an employee, at the stage of absorption, a post higher than the post which he was holding when he was declared surplus.
The Bench further noticed that the first respondent was holding the post of Lecturer when he was declared surplus and disengaged, and he was entitled to be considered for absorption against the post of Lecturer, or an equivalent or lower post, in accordance with the applicable policy. The post of Lecturer was available, and the first respondent was absorbed against that post. “Any claim thereafter for appointment, promotion or elevation to a higher post, including the post of Head of Department, would stand on an entirely different footing and would constitute a separate cause of action. Such claim, if otherwise available in law, would have to be considered in accordance with the statutory rules and the procedure governing appointment to the post in question”, it added.
Holding that the question of filling up a vacant post and the question of absorption of a surplus employee are governed by distinct considerations and cannot be conflated, the Bench stated, “Similarly, the mere fact that the post of Head of Department may have been vacant at the relevant point of time could not confer upon respondent no.1 an entitlement to direct absorption against that post.”
Thus, allowing the appeal and setting aside the impugned order, the Bench held that the Respondent would be treated as having been entitled to absorption on the post of Lecturer in accordance with the applicable policy.
Cause Title: The State of Maharashtra & Ors. v. Sudhakar Shivaram Teke (Neutral Citation: 2026 INSC 883)
Appearance
Appellant: Advocates Aniruddha Deshmukh, Siddharth Dharmadhikari, AOR Aaditya Aniruddha Pande, Shrirang B. Varma
Respondent: Advocates Pranjal Chapalgaonkar, Vatsalya Vigya