Bombay High Court
Rajeshwar Shivappa Patil And ... vs Maharashtra Jeevan Pradhikaran ... on 2 December, 2016
Bench: S.V. Gangapurwala
WP 12296/15 & another with CA 14191/16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITIONS NOS.12296/2015 &
7227/2016
WITH
CIVIL APPLICATION NO.14191/2016
WRIT PETITION NO.12296 OF 2015
1. Rajeshwar Shivappa Patil,
Age: 48 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Sub-Division Ahmedpur,
Dist. Latur.
R/o 117, New Adarsha Colony, Latur.
2. Arvind Krishnarao Gandi,
Age: 49 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Sub-Division Udgir, Dist. Latur.
R/o B-2, MJP Office Quarters,
Near Jal Bhavan, Near Water Tank,
Barshi Road, Latur.
3. Gopinath Sadashivrao Deonikar,
Age: 51 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Now posted on deputation at Rural
Water Supply Sub-Division Nilanga, ZP Latur.
R/o Pasaydan, Infront of Bajaj Show Room,
Shrinagar, Barshi Road, Latur- 413519.
4. Balaji Ramrao Pame,
Age: 54 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Now posted on deputation at
Rural Water Supply Sub-Division Deoni,
Z.P., Latur, R/o Swami Samarth Nagar,
MIDC Road, Latur- 413512.
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5. Mukund Prataprao Patange,
Age: 46 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Sub-Division Bhoom, Dist. Osmanabad.
R/o Plot NO. 87, Near Vidyaniketan School,
Biyani Nagar, Hingoli.
6. Somnath Ramkrishnarao Bhaganagare,
Age: 50 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Sub-Division No. 2, Nanded.
R/o Tulshi Apartment, Flat No. 104,
Venktesh Nagar, Malegaon Road,
Taroda, Dist. Nanded.
7.
Baliram Mansigrao Shinde,
Age: 46 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Sub-Division Kandhar, Nanded.
R/o Madhav Nagar,
Purna Road, Nanded-431605
8. Gangadhar Shankarrao Yambadwar,
Age: 49 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Now posted on deputation at
Rural water supply Sub-Division Kandhar,
Zilla Parishad, Nanded.
R/o 201, Hariom Appartment, Malegaon Road,
In front of city Bank, Taroda (kd), Dist. Nanded.
9 Shivanand Shivling Antad,
Age: 47 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Now posted on deputation at
Rural water supply Sub-Division Patoda,
Zilla Parishad, Beed,
R/o Plot No. 34 Ashtwinayak Appartment,
Builders Housing Society, Nandwan Colony,
Aurangabad-431001
10 Vishnu Radhakisan Bade,
Age: 49 Years, Occ.: Service
as Sub-Divisional Engineer,
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MJP, Sub-Division Ambajogai, Dist. Beed.
R/o Shreenagar, Behind Prashant Nagar,
Ambajogai, Dist. Beed.
11 Kiran Narayanrao Patil,
Age: 45 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Division Aurangabad.
R/o Row House No. 3, Plot No. 7-8-9,
Moreshwar Housing Society,
Garkheda Parishar, Aurangabad- 431009
12 Vijayendra Purushttom Phulambrikar,
Age: 48 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Sub-Division No. 2, Aurangabad,
R/o Plot No. 3, Shashwat Vishwakarma
Housing Society, N-8, CIDCO, Aurangabad.
13 Sudhakar Malba Davkare,
Age: 50 Years, Occ.: Service
as Sub-Divisional Engineer,
MJP, Now posted on deputation at
Rural Water Supply Division Aurangabad,
ZP Aurangabad as Deputy Executive Engineer,
R/o 34, MHADA Colony, Darga Road,
Near Railway Gate, Sahanoorwadi,
Aurangabad-431005 .. Petitioners
Versus
1 Maharashtra Jeevan Pradhikaran,
Express Towers, 4th Floor,
Nariman Point, Mumbai 400 021,
Through its Member Secretary.
2 The Chief Engineer,
Maharashtra Jeevan Pradhikaran,
Aurangabad Region, Opp. Milind College,
Chhawani, Aurangabad
3 The State of Maharashtra,
Through the Principal Secretary,
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WP 12296/15 & another with CA 14191/16
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Water Supply & Sanitation Dept.,
G.T. Hospital Building, 7th Floor,
Opp. Small Cause Court,
Near Crawford Market, Mumbai. ..
Respondents
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WRIT PETITION NO. 7227 OF 2016
1. Sumit S. Belpatre,
Age: 28 Years,
R/o Laxmi Narayan Niwas,
Plot No 45A/18B,
Near IMA Hall, Pandharpur,
Dist. Solapur-413 304
2 Prakash Bhagwat Khatal,
Age: 26 years,
R/o Dhandharphal Kd.,
Post Dhandharphal Bk.,
Tal. Sangamner, Dist. Ahmednagar
3 Prajakta Ashok Karanale,
Age: 24 Years
R/o At Post Wathar (Kiroli),
Tal. Koregaon, Dist. Satara
4 Ashok Rama Dhonge,
Age: 26 Years,
R/o At Post Shenit, Tal. Akole,
Dist. Ahmednagar
5 Rahul Laxmanrao Morghade,
Age: 29 Years,
R/o Plot No. 361, Shri Mahalaxmi Nagar,
Behind Besa Power House, Behind
Process Sabhagriha, Nagpur 440 034
6 Mohua S. Banerjee
Age: 29 years
R/o R-8, Laxmi Nagar, Nagpur
7 Sachin Ganeshrao Maske,
Age: 25 Years,
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R/o Gite Niwas
Dwarkanagari, Shriramur Pusad,
Tal. Pusad, Dist. Yeotmal 445 215
8 Vijaykumar Dilip Waikar,
Age: 25 Years,
R/o Ayodhyanagari Agashivnagar,
Malkapur, Karad 415 002
9 Gaurav Pramod Chakke,
Age: 25 Years,
R/o Plot No. 19, Jivhala,
Omkar Society, Shahupuri,
Satara 415 002
10
Pallavi Parasharam Chougule,
Age: 25 Years,
R/o Kohinoor O/p to Military
Canteen Pagmala, Chiplun 415 605
11 Subodh Manohar More,
Age: 33 Years,
R/o Flat No. 11,
Wing-D, Landge, nestworth Sector
10, Spine Road, Opp. Spine Mall
PCNTDA, Pune 411 026
12 Dharmendra Chute,
Age: 33 Years,
R/o At Post Masal
Tal. Lakhandur, Dist. Bhandara 441 908
13 Krushna B. Avhad,
Age: 25 Years,
R/o Dodi Budruk, Tal. Sinner,
Dist. Nashik 422 606
14 Ganesh Shivaji Bhogawade,
Age: 31 Years,
R/o At Post Golegaon,
Tal. Shirur, Dist. Pune
15 Deepak hanmant Koli,
Age: 29 Years,
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R/o At Post Tung
Tal. Miraj, Dist. Sangli 416 301
16 Ajit Mohanrao Waghmare,
Age: 28 Years,
R/o PlotNo.7, Ramnagar Colony,
MIDC, Kodoli, Satara 415 004
17 Prafulla Ashokrao Vyawahare,
Age: 28 Years,
R/o At Shahapur, Post Old
Dhamangaon, Tal. Dhamangaon
Rly., Dist. Amravati 444 709
18 Amit Shivaji Patharwat,
Age: 27 Years,
R/o Hatur, Post Kanoli,
Tal. Ajara, Dist. Kolhapur
19 Ria Pradip Waghchaure,
Age: 25 Years,
R/o Bungalow No.4,
Shree Gajanan Gurudatta
Housing Society, Samarth Nagar
Nashik 422 005
20 Apurva V. Patil,
Age: 26 Years,
R/o At Post Kodoli,
Tal. Panhala, Dist. Kolhapur
21 Mayuri Ajit Patil,
Age: 27 Years,
R/o Plot No. 517, 5th Lane,
Shirol Road, Jaysingpur,
Tal. Shirol, Dist. Kolhapur
22 Arjun M. Gole,
Age: 24 Years,
R/o Gawadi Tal. Jawali,
Dist. Satara 416 012
23 Prashant Jaysing Patil,
Age: 25 Years, R/o Near Datta Mandir,
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WP 12296/15 & another with CA 14191/16
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Kapushked Naka,
Islampur, Dist. Sangli 416 409
24 Tanmay Ashok Kamble,
Age: 25 Years,
R/o A/8/1, Rajivnagar Khed,
Tal. Satara, Dist. Satara 415 003
25 Ajay Shivaji Palve,
Age: 36 Years,
R/o Flat No. 101, Building No. 17,
Ekta Building, Sai Nagar,
Panvel 410 206
26 Vijendra yashwant Shelke,
Age: Adult,
R/O 3, Uma Park Row Houses,
Sharad Pingle Nagar,
Meherdham Stop, Peth Road,
Panchavati, nashik 422 004
27 Uday Singh Patil,
Age: 25 Years,
R/o 9, Mahada Colony
Near Friends Colony
Katol Road, Nagpur 440 013 ..
Petitioners
Versus
1 Maharashtra Jeevan Pradhikaran,
Express Towers, 4th Floor,
Nariman Point, Mumbai 400 021,
Through its Member Secretary.
2 The Principal Secretary,
General Administrative Department,
Mantralaya, Mumbai.
3 The State of Maharashtra,
Through the Principal Secretary,
Water Supply & Sanitation Dept.,
G.T. Hospital Building, 7th Floor,
Opp. Small Cause Court,
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WP 12296/15 & another with CA 14191/16
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Near Crawford Market, Mumbai.
4 Maharashtra Public Service Commission,
Having Office at 8th Floor, Cooperage
Telephone Exchange Bldg.,
Maharshi Karve, Mumbai .. Respondents
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S/Shri A.S. Deshpande and P.D. Suryawanshi, Advocates for
petitioners.
Smt.Vaishali Patil, AGP for the State.
S/Shri S.R. Barlinge and D.P. Bakshi, Advocates for
respondent nos.1 & 2.
Shri K.G. Patil, Advocate for applicant in CA 14191/2016.
.....
CORAM: S.V. GANGAPURWALA &
K.L. WADANE, JJ.
DATE: 02.12.2016
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1] The petitioners in Writ Petition No.12296/2015
are graduate Civil Engineers. They were appointed as
Assistant Engineer Grade-II with respondent no.1. During
the period 2004 to 2009, these petitioners were promoted
as Sub-Divisional Engineer by the respondent no.1 on ad-
hoc basis. The advertisement is issued by the respondent
no.1 through Maharashtra Public Service Commission for
filling in the posts of Sub Divisional Engineers
(Assistant Engineer Grade-I and Assistant Executive
WP 12296/15 & another with CA 14191/16
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Engineer) by nomination. Pursuant to the said
advertisement, 36 candidates are selected. Some of such
selected candidates pursuant to the selection process
have filed Writ Petition No.7227/2016 wherein directions
are sought for issuance of appointment orders.
2] The petitioners in Writ Petition No.12296/2015
challenged the seniority list of the Sub-Divisional
Engineer cadre dated 24.9.2015 on the ground that their
names stand deleted from the seniority list and fearing
adverse action being taken, probably of reversion
pursuant to the provisional seniority list, have sought
directions restraining the respondents from taking any
adverse action pursuant to the seniority list.
3] Shri A.S. Deshpande, learned counsel for the
petitioners strenuously contends that the respondent no.1
is established with effect from 1.1.1977. As per the
decision dated 21.1.1984, the provisions of the
Maharashtra Civil Services Rules were made applicable to
the employees of the respondent no.1. On or about
8.2.1999, the recruitment rules applicable to the Water
Resource Department were made applicable to the
respondent no.1 and on and from 16.6.1997, the rules of
WP 12296/15 & another with CA 14191/16
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recruitment applicable to the Irrigation Department were
made applicable to the respondent no.1. The learned
counsel submits that the said rules do not provide for
any ratio for the appointment of Sub Divisional Engineers
by promotion and/or nomination. The learned counsel
submits that under the Government resolution dated
19.12.1970, the ratio is laid down with regard to the
appointment of Sub Divisional Engineers by nomination and
promotion. The learned counsel submits that though the
said Government resolution laid down the ratio to be
maintained for appointment of Sub Divisional Engineers by
nomination and promotion, the respondent no.1 at no
material point of time adhered to the said ratio. The
said Government resolution dated 19.12.1970 has become
obsolete because of the changing scenario. Because of
the mushrooming of the private engineering colleges, more
graduate engineers would be available. With these
increased number of graduate engineers, the scenario
would change.
4] The learned counsel further submits that for
last 30 years, the quota rule was never applied nor it
was ever adopted. The petitioners are promoted during
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the period 2004 to 2009 and are officiating the post of
Sub Divisional Engineers for 12 to 13 years. The settled
position cannot be allowed to be unsettled after such a
long gap. When the respondents have not adhered to the
said quota prescribed under the Government resolution of
1970, the respondents now cannot be allowed to turn
around after a hiatus of 30 years and claim to adhere to
the quota as per the resolution of 1970.
5] The learned counsel further submits that all
these petitioners were working in the feeder cadre and
were eligible to be promoted as Sub Divisional Engineers.
Though the promotion orders state that their promotion is
ad hoc and temporary, still they are working for more
than 12 to 13 years and it would be inappropriate,
inequitable to unsettle them. The learned counsel,
relying on the judgment of the Apex Court in a case of
The Direct Recruit Class-II Engineering Officers'
Association & others v. State of Maharashtra & others
reported in AIR 1990 SC 1607 submits that where the quota
rule has broken down and the appointments are made from
one source in excess of the quota, the appointee should
not be pushed down. If a quota rule is prescribed by
WP 12296/15 & another with CA 14191/16
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executive instructions and is not followed continuously
for number of years, the inference is that the executive
instructions have ceased to remain operative. According
to the learned counsel, in the present case also, the
quota was prescribed by executive instructions. The same
is not followed continuously for number of years. The
only irresistible conclusion that can be drawn is that
the said executive instructions have ceased to be
operative.
6] The learned counsel submits that the fact that
the quota rule, which was made applicable as per the
executive instructions of the year 1970, were never
followed is writ large from the advertisement issued by
the respondent no.1 so also the requisition made by the
respondent no.1 from time to time. At no material point
of time, the respondent no. issued any advertisement or
went ahead with the selection process for the total
number of vacancies, which were meant to be filled in by
nomination to the post of Sub Divisional Engineers. The
advertisement issued for filling in the post of Sub
Divisional Engineer by nomination was never more than 10%
of the vacant posts to be filled in by nomination as per
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the general instructions. The learned counsel submits
that the instructions of the year 1970 were followed more
in breach.
7] Shri Deshpande, the learned counsel, further
submits that the Apex Court has held that when the rules
permit the authorities to relax the conditions relating
to the quota, a presumption would arise that there was
some relaxation when there was deviation from the quota
rule. The learned counsel submits that even under the
executive instructions dated 19.12.1970, a provision is
made to review the quota after three years and as the
post of Sub Divisional Engineer was never filled in by
nomination and that the said quota rule was not followed,
it will have to be presumed that the said quota fixed
under the Government resolution has been relaxed and
changed.
8] Shri S.R. Barlinge, learned counsel for the
respondent no.1, submits that the respondent no.1 at no
material point of time ever deviated from the quota laid
down as per the resolution of the year 1970. The
petitioners herein were promoted to the posts of Sub
Divisional Engineers on temporary ad-hoc basis
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considering the exigency of the situation. Sub-clause
(2) of Clause 5 of the order of promotion explicitly
makes it clear that the petitioners' promotions are on
ad-hoc basis and against the posts which are to be filled
in by nomination and they would not have any right on the
post of Sub Divisional Engineer and as and when the
candidates would be available by nomination pursuant to
selection process, the junior most persons from the lot
promoted on ad-hoc basis will have to be reverted back.
The petitioners accepted the promotion order with clear
understanding, now cannot stake their right. The
petitioners do not have any vested right on the said
posts. A person who is appointed / promoted on ad hoc
basis cannot claim any right to the said post.
9] The learned counsel for the respondent no.1
relies on the judgment of the Apex Court in a case of
Keshav Chandra Joshi v. Union of India reported in 1992
(Supp.1) SCC 272. The learned counsel further submits
that even if the promotees continue for a long time after
being promoted on ad-hoc basis, still that would not give
them any right. To substantiate the said contention, the
learned relies on the judgment of the Apex Court in a
WP 12296/15 & another with CA 14191/16
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case of Maharashtra Vikrikar Karmchari Sangathan v. State
of Maharashtra & another reported in (2000) 2 SCC 552.
The learned counsel submits that in the year 2012,
requisition was made for filling in 90 posts of Sub
Divisional Engineers but the MPSC had only recommended 36
candidates for the post of Sub Divisional Engineer.
According to the learned counsel, the persons who are
selected for being appointed by nomination to the post of
Sub Divisional Engineer are required to be considered for
appointment from the quota meant to be filled in by
nomination.
10] The learned counsel for the petitioners in Writ
Petition No.7227/2016 states that it is more than one
year, the petitioners therein are selected, however,
appointment orders are not being issued by the respondent
no.1. The respondent no.1 is required to be directed to
issue the appointment orders.
11] Mr.K.G. Patil, learned counsel for the
intervenor in Writ Petition No.12296/2015 states that
there is inaction on the part of the respondent no.1 to
fill in the vacant posts of Sub Divisional Engineers from
Sectional Engineer's category. There are 15 posts vacant
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from the said quota. The respondent no.1 is not making
any attempt to fill in the said posts.
12] We have considered the submissions canvassed by
the learned counsel for the respective parties.
13] It is trite that promotion and/or seniority is
not a fundamental right. The Apex Court in a case of
the Direct Recruit, referred to supra, has observed that
if there are no statutory rules governing the field with
regard to the quota meant for nomination and promotion,
then the same can be fixed by executive instructions. In
absence of Rules, executive order can fill up the gap.
In the present case, the recruitment rules which are made
applicable to the respondent no.1 do not provide for any
quota for the post of Sub Divisional Engineer to be
filled in from nomination and promotion. The executive
instructions pursuant to the Government resolution dated
19.12.1970 prescribe the quota. The same are as under:-
"C) The permanent posts in Class II remaining
in balance after setting the posts for the cadre
of Deputy Engineer and all the temporary posts
existing at any time in Class-II shall be
distributed in the three cadres in the
following:-
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Permanent Posts Temporary Posts
2 Assistant Engineer Class-II 34% NIL
3 Sub-Divisional Engineers. 33% 50%
4 Sub-Divisional Officers 33% 50%
d) The proportions of the three cadres in the
distribution of permanent and temporary posts in Class-
II shown in rule 2 C will be in force for three years
and will be reviewed thereafter."
14]
Upon perusal of the facts on record, it
transpires that the petitioners are appointed as
Assistant Engineers Grade-II and the next promotion to
the petitioners would be in the cadre of Sub-Divisional
Engineers. The respondent no.1 has 241 sanctioned posts
of Sub-Divisional Engineers. From these 241 sanctioned
posts, 34% posts are to be filled in through MPSC i.e. by
nomination. 33% of these 241 sanctioned posts (i.e. 80
posts) of Sub-Divisional Engineers are to be filled in by
giving promotion to the Assistant Engineers Grade-II to
which cadre the petitioners belong and remaining 33%
posts (i.e. 79 posts) are to be filled in by giving
promotion to the Sectional Engineers working with the
respondent no.1. 80 promotional posts of Sub-Divisional
Engineers from the feeder cadre of Assistant Engineers
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Grade-II, to which the petitioners belong, are completely
filled in. However, out of quota of 82 posts, reserved
to be filled in by direct nomination through MPSC, is not
completely filled in and 80 posts from said quota are yet
to be filled in through candidates from MPSC. These
petitioners belonging to the cadre of Assistant Engineer
Grade-II were given ad-hoc promotion to the posts of Sub-
Divisional Engineers against the quota reserved for MPSC
candidates and this fact was clearly mentioned in the ad-
hoc promotion order. The said promotion order also
states that as and when the candidates are made available
for appointment by nomination through MPSC, the ad-hoc
promotees like the petitioners shall be reverted to the
original posts i.e. Assistant Engineers Grade-II.
15] The bone of contention of the petitioners is
that the said quota was never adhered to and the posts of
Sub Divisional Engineers to be filled in by nomination
were never filled in to its optimum. The vacancies of
almost 82 posts existed, however, every time, the
advertisement was issued for negligible number of posts
to be filled in by nomination and on that basis, it is
stated that the said quota which was fixed by the
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executive instructions has been deviated from.
16] As per the executive instructions of the year
1970, appointment to the posts of Sub-Divisional
Engineers is to be made from three sources i.e. by
nomination, by promotion of the persons from the post of
Assistant Engineer Grade-II and by promotion from the
persons holding the posts of Sectional Engineers.
Where the appointments are made from more than one
source, it is permissible to fix the ratio for
recruitment from different sources and if the Rules or
the executive instructions provide for the ratio or
quota, the same has to be followed strictly and deviation
therefrom is not permissible. The executive instructions
laying down the quota holding the field have been adhered
to by the respondent no.1.
17] The arguments of the learned counsel for the
petitioners could have been accepted had any regular
promotions been made on the posts to be filled in by
nomination or there was some interchange of filling int
he post of Sub Divisional Engineer by promotion from the
feeder cadre i.e. either from Sectional Engineers or
Assistant Engineers Grade-II. However, as we have
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observed above, regular promotions were never made at any
point of time deviating from the quota laid down under
the executive instructions of 1970.
18] The Apex Court in a case of The Direct Recruit,
referred to supra, has laid down following principles :-
"(A) Once an incumbent is appointed to a post
according to rule, his seniority has to be
counted from the date of his appointment and not
according to the date of his confirmation. The
corollary of the above rule is that where the
initial appointment is only ad hoc and not
according to rules and made as a stop-gap
arrangement, the officiation in such post cannot
be taken into account for considering the
seniority.
(B) If the initial appointment is not made by
following the procedure laid down by the rules
but the appointee continues in the post
uninterruptedly till the regularisation of his
service in accordance with the rules, the period
of officiating service will be counted.
(C) When appointments are made from more than
one source, it is permissible to fix the ratio
for recruitment from the different sources, and
if rules are framed in this regard they must
ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the
existing quota rule, it should be substituted by
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an appropriate rule to meet the needs of the
situation. In case, however, the quota rule is
not followed continuously for a number of years
because it was impossible to do so the inference
is irresistible that the quota rule had broken
down.
(E) Where the quota rule has broken down and the
appointments are made from one source in excess
of the quota, but are made after following the
procedure prescribed by the rules for the
appointment, the appointees should not be pushed
down below the appointees from the other source
inducted in the service at a later date.
(F) Where the rules permit the authorities to
relax the provisions relating to the quota,
ordinarily a presumption should be raised that
there was such relaxation when there is a
deviation from the quota rule.
(G) The quota for recruitment from the different
sources may be prescribed by executive
instructions, if the rules are silent on the
subject.
(H) If the quota rule is prescribed by an
executive instruction, and is not followed
continuously for a number of years, the
inference is that the executive instruction has
ceased to remain operative."
It has been laid down in the said authoritative
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decision that once an incumbent is appointed to a post
according to rules, his seniority has to be counted from
the date of his appointment and not according to the date
of his confirmation. The corollary of the above rule is
that when the initial appointment is only ad-hoc and not
according to rules and made as a stop gap arrangement,
the officiation in such post cannot be taken into account
for considering the seniority. The Apex Court has also
held that where the quota rule has broken down and the
appointments are made from one source in excess of the
quota, but are made after following the procedure
prescribed by the rules for appointment, the appointee
should not be pushed down below the appointees from the
other source inducted in the service at later stage.
19] We had asked the learned counsel for the
respective parties as to whether the quota that was
prescribed for the persons to be promoted as Sub
Divisional Engineers from the cadre of Sectional
Engineers and Assistant Engineer Grade-II were given
regular promotion in excess of their quota, the learned
counsel replied int he negative. It is stated that the
regular promotions from the respective quota were never
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made in excess; so also no promotions are made on regular
basis for the post to be filled in by nomination.
20] Only on the ground that number of posts vacant
to be filled in by nomination were never advertised to
its optimum may not be sufficient to come to conclusion
that the quota rule has been broken down or that there is
any deviation from the quota fixed by the executive
instructions. There is no material on record to indicate
that quota rule was broken down.
21] Even in case of Dr.Surinder Singh Jamwal &
another v. State of J & K & others reported in (1996) 9
SCC 619, it was held that the ad-hoc employees though
were working for more than 13 years could not be granted
regularization and their services were protected till the
appointment of selected candidates.
22] Generally, once an appointment is made to a post
according to the rules, the seniority has to be counted
from the date of his appointment. However, when initial
appointment is only ad-hoc and as a stop gap arrangement,
the period of officiation on such post cannot be taken
into account for reckoning seniority. The petitioners
admittedly are appointed on ad-hoc basis as a stop gap
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arrangement and till the regular recruits are appointed
according to the rules. Continuous length of ad-hoc
service from the date of initial appointment cannot be
counted towards seniority.
23] Only because the petitioners are officiating for
some length of period as Sub Divisional Engineers on ad-
hoc basis upon the orders of promotion will not be
sufficient to invest them with vested right. The orders
of promotion explicitly state that their promotion is
made on ad-hoc basis and on the post meant to be filled
in by nomination and further that when the post would be
filled in by nomination, the persons who are junior in
the said list of persons who are promoted ad-hoc will
have to be reverted back.
24] If the statutory rules or the valid executive
instructions would not have been holding the field, then
the case of the persons who are officiating the posts for
quite a length of time could be considered. Only in
absence of rules or executive instructions, the Court may
evolve fair and just principle to be applied commensurate
with the facts of the case. However, in the wake of the
executive instructions holding the field and that the
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quota laid down under the said executive instructions was
never deviated at any material point of time so also the
order of ad-hoc promotions clearly and unambiguously
states that these promotions are ad-hoc and are made on
the post meant to be filled in by nomination and further
that, when candidates by nomination would be available,
said persons would be reverted. Hence, it would not be
possible to consider the case of the petitioners.
25] The promotion of the petitioners being ad-hoc
and in the quota to be filled in by nomination through
MPSC, they cannot claim seniority on the basis of their
officiating service. Seniority has to be fixed strictly
in accordance with the quota provided in the executive
instructions of 1970. Clause 40 of the executive
instructions dated 19.12.1970 also explicitly state that
all officiating promotions made in excess of the fixed
proportions or in contravention of the fixed minimum
requirements of service shall be treated as fortuitous
and the service rendered in that capacity shall not be
counted for seniority. The case of the petitioners is
hit by said Clause 40 of the general instructions also.
26] In view of the specific instructions holding the
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field, the case of the petitioners in Writ Petition
No.12296/2015 cannot be considered on equity. Hence, the
said writ petition is dismissed.
27] As far as Writ Petition No.7227/2016 is
concerned, it is for the respondent no.1 to issue them
the appointment orders and the respondent no.1 has not
denied to issue the appointment orders to them.
According to the learned counsel for the respondent no.1,
it is because of the interim orders passed in Writ
Petition No.12296/2015, the appointment orders could not
be issued to the petitioners of Writ Petition
No.7227/2016. Writ Petition No.7227/2016 is accordingly
disposed of.
28] Shri A.S. Deshpande, learned counsel for the
petitioners, seeks continuation of interim orders for
further period of six weeks. Shri S.R. Barlinge, learned
counsel for the respondent no.1, opposes the said
request. However, considering the fact that the interim
orders are operating almost for one year, we extend the
same for a period of six weeks. Needless to state, on
the lapse of six weeks, the interim protection granted by
this Court shall come to an end.
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29] In view of disposal of Writ Petition
No.12296/2015, Civil Application No.14191/2016 filed by
Dinesh Maganlal Shah & another for intervention also
stands disposed of.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)
ndk/c2121626.doc
