The Supreme Court has held that a surplus employee cannot claim absorption against a post higher than the one he was holding when declared surplus merely because the two posts carry the same pay scale or the higher post was vacant.

A bench of Justice Ahsanuddin Amanullah and Justice R Mahadevan set aside the Bombay High Court's judgment which had directed the absorption of the Respondent No.1 to the post higher, i.e., Head of Department, than the post of lecturer he was holding while he was disengaged after being declared as surplus..

“The policy governing absorption could not, therefore, 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 Court observed.

The appeal arose from the Bombay High Court's order in a writ petition filed by Respondent No. 1, who sought absorption as Head of Department (Civil Engineering) at the Institute of Civil and Rural Engineering, Kolhapur.

Respondent No.1 had been declared surplus and disengaged pursuant to the Maharashtra Government Resolution. At the relevant time, he was working as a Lecturer.

Under the State's surplus-employee absorption policy, such an employee was liable to be absorbed against an equivalent post available in another institution or college of the same category.

Respondent No.1 was ultimately absorbed as a Lecturer and continued in that post until his superannuation in 2024. His grievance was that he ought to have been absorbed directly as Head of Department because the pay scale attached to the post of Lecturer was equivalent to that of Head of Department.

The institute rejected his claim in 2011, following which he approached the Bombay High Court, which had allowed Respondent No.1's petition primarily on the reasoning that under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act), the post of Head of Department was required to be filled by the senior-most Lecturer.

Aggrieved by the High Court's decision, the State moved to the Supreme Court.

Setting aside the High Court's decision, the Court observed that the High Court erred in granting the benefit of absorption to the disengaged lecturer-Respondent No.1 to the post of HoD.

“He was therefore entitled to be considered for absorption against the post of Lecturer, or an equivalent or lower post, in accordance with the applicable policy. Admittedly, the post of Lecturer was available and respondent no. 1 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.”, the Court said.

Also, the Court faulted the High Court's approach to allow the absorption to the HoD post on the reasoning of equivalence of pay scales, and the Respondent No.1 being the senior-most lecturer.

“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…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. 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 Court said.

As a result, the appeal was allowed.

“Respondent no.1 shall be treated as having been entitled to absorption on the post of Lecturer in accordance with the applicable policy. However, we express no opinion on any independent claim that respondent no.1 may have had, or may otherwise be entitled to raise, in respect of any subsequent appointment, promotion or other benefit concerning the post of Head of Department. Since respondent no.1 has already superannuated, any such claim, if made, shall be considered and decided in accordance with law by the appropriate forum.”, the Court clarified.

Cause Title: THE STATE OF MAHARASHTRA & ORS. VERSUS SUDHAKAR SHIVARAM TEKE & ORS.

Citation : 2026 LiveLaw (SC) 828

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Appearance:

For Petitioner(s) Mr. Aniruddha Deshmukh, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AoR Mr. Shrirang B. Varma, Adv.

For Respondent(s) Ms. Pranjal Chapalgaonkar, Adv. Mr. Vatsalya Vigya, AOR