Surplus Employee Cannot Claim Absorption on Higher Post Than One Held When Declared Surplus

A Supreme Court bench of Justices Ahsanuddin Amanullah and R. Mahadevan holds that State Government absorption policy cannot elevate a surplus employee beyond the post from which he was disengaged.

The Supreme Court on 11 August 2026 set aside a Bombay High Court order that had directed the absorption of a surplus employee directly on the post of Head of Department (Civil Engineering), a post he had never held when he was declared surplus. The Court held that under the Maharashtra Government's surplus employee policy, absorption can only be made against the post from which an employee was disengaged, or an equivalent or lower post — not a higher one. The ruling draws a clear line between the right of absorption and any independent claim for promotion or appointment to a higher post, insisting the two operate under entirely different legal frameworks.

How the Dispute Reached the Supreme Court

Sudhakar Shivaram Teke, respondent no. 1, was declared surplus and disengaged from service pursuant to a Government Resolution dated 10 September 2001. At the time of disengagement, he held the post of Lecturer. Under the State Government's surplus employee policy, disengaged employees were to be absorbed against equivalent posts in other institutions of the same category.

Teke was eventually absorbed as a Lecturer at the Institute of Civil and Rural Engineering, Gargoti, District Kolhapur (respondent no. 3 — Mouni Vidyapeth's institute). He subsequently superannuated from that post in 2024. His grievance, however, was that he ought to have been absorbed directly as Head of Department (Civil Engineering), on the basis that the pay scales attached to both posts — Lecturer and Head of Department — were equivalent.

The Institute rejected his claim by order dated 18 February 2011. Teke then filed Writ Petition No. 1841 of 2013 before the High Court of Judicature at Bombay. By its impugned order dated 27 September 2019, the High Court allowed the writ petition, reasoning that under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (the MEPS Act), the post of Head of Department was required to be filled by the senior-most Lecturer in the Institute. Since Teke fulfilled that criterion, the High Court held he was entitled to direct absorption on the higher post.

The State of Maharashtra and its officials — through the Secretary, Higher and Technical Education Department, the Director of Technical Education, and the Joint Director of Technical Education — challenged the High Court's order by filing SLP(C) No. 11757 of 2021. The Supreme Court granted leave and converted the petition into Civil Appeal No. of 2026, bearing the citation 2026 INSC 883.

The Appellants' Case: Absorption Covers Only the Disengaged Post

Counsel for the State argued that the absorption policy is limited in scope. A surplus employee disengaged from a particular post can only be absorbed against that post, an equivalent post, or, subject to availability, a lower post. Since Teke was disengaged as a Lecturer, his entitlement under the policy extended only to absorption as a Lecturer.

On the MEPS Act argument accepted by the High Court, the appellants contended that the statute merely prescribed the manner of filling the post of Head of Department — it did not create an entitlement to absorption on that post. They also pointed to a subsequent amendment, communicated on 30 December 1999 pursuant to recommendations of the All India Council for Technical Education (AICTE), which replaced the seniority-based elevation with an open merit-based selection process at the national level for all cadre posts, including Head of Department.

The appellants' core submission was that any claim by Teke for appointment or promotion to the post of Head of Department was a wholly separate cause of action from the question of his absorption as a surplus employee, and could not be grafted onto the absorption proceedings.

Respondent's Concession on a Critical Point

Counsel for Teke supported the High Court's reasoning, contending that since the MEPS Act prescribed seniority as the criterion for the Head of Department post and the pay scales were identical, his absorption ought to have been made directly on the higher post.

However, when the Court directly queried whether the absorption policy permitted absorption against a post which the employee did not hold at the time of disengagement, counsel for Teke fairly conceded that Teke was holding only the post of Lecturer when he was declared surplus, and was not holding the post of Head of Department at that time.

That concession proved decisive.

What the Court Held on Surplus Employee Absorption

The Court found the High Court's reasoning to be founded on a fundamental error. The High Court had proceeded on the premise that because Teke satisfied the criteria for appointment as Head of Department under the MEPS Act, he was automatically entitled to be absorbed against that post. The Supreme Court rejected this squarely.

The Court held that the State Government's surplus absorption policy operated on a different plane entirely. Its purpose was to place a disengaged employee back into service at the level from which he was removed — not to use absorption as a vehicle for elevation to a higher post. The Court stated that the policy “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.”

Since Teke was a Lecturer when disengaged, his absorption entitlement was limited to the post of Lecturer, an equivalent post, or a lower post. That post was available and he was absorbed against it. His subsequent superannuation from the Lecturer post in 2024 further settled the factual position.

On Pay Scale Equivalence and Vacancy

The Court addressed two additional lines of reasoning that had influenced the High Court's thinking.

First, on pay scale equivalence: the Court held that the fact that the Lecturer post and the Head of Department post carried identical pay scales did not entitle Teke to absorption on the latter. Equivalence of pay scales, by itself, cannot alter the nature of the post against which a surplus employee is to be absorbed under the governing policy.

Second, on the vacancy argument: the Court held that the mere existence of a vacancy in the post of Head of Department at the relevant time gave Teke no right to claim absorption against it. The question of filling a vacant post and the question of absorbing a surplus employee are governed by distinct considerations. The Court held these two questions “cannot be conflated.”

On the MEPS Act and the AICTE Amendment

The Court's reasoning on the MEPS Act was equally pointed. Even if the Act once permitted the senior-most Lecturer to be elevated to Head of Department, that provision was amended following AICTE directions communicated on 30 December 1999. After the amendment, recruitment to all cadre posts — including Head of Department — was required to be made strictly on merit through an open advertisement at the national level.

More fundamentally, the Court held that the MEPS Act's prescription of the mode of appointment to the post of Head of Department had no bearing on the separate question of which post a surplus employee was entitled to be absorbed against. The statutory appointment procedure governs how a post is filled in the ordinary course; it does not determine the scope of an absorption policy meant for disengaged surplus employees.

Outcome

The Court allowed the appeal and set aside the Bombay High Court's order dated 27 September 2019 in Writ Petition No. 1841 of 2013 along with Civil Application No. 395 of 2019.

Teke is to be treated as having been entitled to absorption on the post of Lecturer in accordance with the applicable policy. The Court expressly left open any independent claim he may have had — or may otherwise be entitled to raise — in respect of appointment, promotion, or other benefits concerning the post of Head of Department. Since Teke has already superannuated, any such claim, if made, shall be considered and decided in accordance with law by the appropriate forum.

Pending applications, if any, were disposed of.