Bombay High Court
Shri Noreshwar Raghunathrao ... vs Shri Sudhakar Baburao Nangnure ... on 16 November, 2017
Bench: V.K. Tahilramani
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DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8859 OF 2016
Shri Noreshwar Raghunathrao Shende
Aged : 51 years, Occ. Government Service
as Director of Town Planning, (M.S.), Pune,
having office at Pune, R/o. Kusumagiri,
Siddhachal, Phase No.3, Thane (W). ..... Petitioner
Vs.
1. Shri Sudhakar Baburao Nangnure
Aged : Adult, working as Joint Director
of Town Planning (Valuation), (M.S.),
Pune, R/at I-703, Ruturang, Aranyeshwar
Road, Near Lokesh Hotel, Pune - 411 009.
2. The State of Maharashtra
through Principal Secretary,
(UD-1), Urban Development Department,
having office at Mantralaya, Mumbai 400032.
3. The Additional Chief Secretary (Service),
General Administration Department,
having office at Mantralaya, Mumbai 400 032.
4. The Secretary in Charge of Desk
16-B, General Administration Department,
having office at Mantralaya, Mumbai 400 032. ..... Respondents
WITH
WRIT PETITION NO. 8860 OF 2016
Shri Noreshwar Raghunathrao Shende
Aged : 51 years, Occ. Government Service
as Director of Town Planning, (M.S.), Pune,
having office at Pune, R/o. Kusumagiri,
Siddhachal, Phase No.3, Thane (W). ..... Petitioner
Vs.
1. Shri Sudhakar Baburao Nangnure
Aged : Adult, working as Joint Director
1/50
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of Town Planning (Valuation), (M.S.),
Pune, R/at I-703, Ruturang, Aranyeshwar
Road, Near Lokesh Hotel, Pune - 411 009.
2. The State of Maharashtra
through Principal Secretary,
(UD-1), Urban Development Department,
having office at Mantralaya, Mumbai 400032.
3. The Additional Chief Secretary (Service),
General Administration Department,
having office at Mantralaya, Mumbai 400 032.
4. The Secretary in Charge of Desk
16-B, General Administration Department,
having office at Mantralaya, Mumbai 400 032. ..... Respondents
WITH
WRIT PETITION NO. 9291 OF 2016
The State of Maharashtra
through Urban Development Department,
Mantralaya, Mumbai. ..... Petitioner
(Org. Resptd.)
Vs.
1. Shri Sudhakar Baburao Nangnure
working as Joint Director of Town
Planning Valuation, Maharashtra
State, Pune.
Residing at I-703, Ruturang,
Aranyeshwar Road, Near Lokesh Hotel,
Pune 411 009. ..... Respondents
(Org. Appellant)
2. Shri N.R. Shende
Director of Town Planning,
Maharashtra State, Pune. ....(Org.Resp.No.4)
...........
Mr. Rafiq Dada, Senior Advocate along with Mr. Anil Sakhare, Senior
Advocate Mr. N.V. Bandiwadekar, Mr. Sagar Mane, Mr. Kirankumar
Phakade, Mr. Amit Mane, Mr. Yashwant Dhanegare i/by Mr. Bhushan
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A. Bandiwadekar, Advocate for the petitioner in Writ Petition No.
8859/2016 and Writ Petition No.8860/2016 and respondent No.2 in
Writ Petition No.9291/2016
Mr. Ravi Kadam, Senior Advocate along with Mr. Mihir Desai, Senior
Advocate, Mr. S.B. Talekar, Mr. Sandeep Marne i/by Mr. Sidheshwar
N. Biradar, Advocate for the respondent No.1.
Mr. A.B. Vagyani, Government Pleader along with Mr. O.M. Kulkarni,
AAGP for the State/petitioner in Writ Petition No.9291/2016 and
respondents No.2 to 4 in Writ Petition No.8859/2016 and Writ
Petition No.8860/2016.
...........
CORAM : SMT. V.K. TAHILRAMANI &
M.S.KARNIK, J.J.
RESERVED ON : 9th NOVEMBER, 2017.
PRONOUNCED ON: ___ NOVEMBER, 2017.
JUDGMENT (PER M.S. KARNIK, J.) :-
Rule. Rule made returnable forthwith by consent of the
parties and heard finally.
2. At the outset we note that the Apex Court by the order
dated 9th October, 2017 has directed that the present petitions be
heard and disposed of within 10 days from 31 st October, 2017. The
petitions have been taken up for final hearing at the stage of
admission.
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3. The petitioner in Writ Petition No. 8860/2016 is the
original respondent No.4 in O.A. No.269/2016 filed by the present
respondent No.1 before Maharashtra Administrative Tribunal ('the
Tribunal' for short). To appreciate the controversy involved it would
be material to reproduce the reliefs claimed by the respondent No.1
before the Tribunal, which reads thus :-
"(a) to allow the Original Application.
(b) to quash and set aside the final impugned final seniority list
as on 1/1/2015 published by the res.no.1 on 15/1/2016 for the
cadre of Joint Director of Town Planning as unconstitutional and
illegal and bad in law and also as contrary to the settled legal
position in law so far as the consequential seniority for the
reserved category promotes is concerned, as settled by the
Constitution Bench of the Hon. Supreme Court in the case of M.
Nagaraj V/s Union of India.
(c) To direct the Respondent no.1 to review and revise the
impugned seniority list for the cadre of Joint Director of Town
Planning as on 1/1/2015 by fixing the seniority of the applicant
above the Respondent no.4 in conformity with their seniority
position in the feeder cadre of Deputy Director of Town Planning
and enforce the same expeditiously by processing the selection
and consideration for promotion to the post of Director of Town
Planning on the basis of the said review and revision of the
seniority list for the feeder cadre of Deputy Director of Town
Planning.
(d) To restrain the Respondent no.1 from undertaking the
exercise of selection and consideration for promotion for the post
of Director of Town Planning on the basis of the final seniority
list as on 1/1/2015 published by the Respondent no.1 on
15/1/2016 for the cadre of Joint Director of Town Planning, till
the said list is reviewed and revised as prayed herein before."
4. During the course of the hearing of O.A.No.269/2016 the
respondent No.1 in Writ Petition No.8860/2016 filed Misc.
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Application No.170/2016 for condoning the delay of 199 days
occasioned in filing the O.A. By the order dated 13/4/2016 the
Tribunal was pleased to condone the delay. Being aggrieved by the
order dated 13/4/2016, the petitioner has filed Writ Petition
No.8859/2016.
5. The State of Maharashtra is the respondent No.2 in Writ
Petition No.8860/2016, has filed Writ Petition No.9291/2016
challenging the impugned order dated 2/5/2016 passed by the
Tribunal in O.A.No.269/2016. Thus, the petitioner as well as
respondent No.2 State of Maharashtra are aggrieved by the
impugned order dated 2/5/2016 have filed separate petitions
challenging the same order.
6. As the issues involved in these petitions are common and
interlinked, the parties are referred to as per their respective position
in the cause-title in Writ Petition No.8860/2016 for convenience .
7. The brief facts necessary for deciding the present Writ
Petitions are stated thus :-
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The petitioner belongs to the Scheduled Caste (S.C.)
Category. The respondent No.1 belongs to Open Category. As on the
date of the filing of the O.A. No.269/2016 on 12/3/2016, the
respondent No.1 was working as the Joint Director of Town Planning
('JDTP' for short) since 3/7/2013. The petitioner was junior to the
respondent No.1 in the cadre of Deputy Director as per seniority list
published on 14/2/2011. One Shri K.S. Akode was promoted by an
order dated 25/11/2004 in the post reserved for S.C. When Shri
Akode was promoted as Director of Town Planning, the reserved post
of JDTP was filled by promoting Shri Shikhare, who also belonged to
S.C. Category. On retirement of Shri Shikhare, the post was filled by
promotion of the petitioner who also belonged to the S.C. Category
on 11/8/2011.
8. Before the Tribunal it was case of the respondent No.1
that when Shri Akode who belonged to S.C. Category was promoted
as Director, the resultant vacancy in the post of Joint Director should
have been filled from S.T. Category. If no suitable S.T. Category
candidate was available, the post should have been kept vacant for
three years as per Section 6(1) of the Maharashtra State Public
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Services (Reservation for Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes) Act, 2001 (hereinafter called
as "the Reservation Act"). It is the case of the respondent No.1 that
any promotion in the said vacancy given to a person from any
reserved category other than S.T. Category cannot be called regular
Promotion and any such promotion should be treated as Ad-hoc and
fortuitous without creating any right of seniority.
9. It is an admitted fact that by circular dated 14 th February,
2011, the seniority list of the cadre of Deputy Director, Town
Planning was published, where the petitioner was shown junior to
the respondent No.1. Thereafter, on 1/8/2011, the Director of Town
Planning Group A, Joint Director of Town Planning Group A, Deputy
Director of Town Planning Group A, Assistant Director of Town
Planning Group A, Town Planner Group A, Assistant Town Planner
Grade I, Group B and Assistant Town Planner Grade II, Group B in
the Maharashtra Town Planning and Valuation Service in the
Directorate of Town Planning and Valuation (Recruitment) Rules,
2011 (hereinafter referred to as 'R.R. Of 2011') came to be enacted.
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10. At this stage, it would be pertinent to mention that by a
circular dated 27th October, 2008 the State of Maharashtra clarified
that in case of small cadres (less than 32) in first vacancy a candidate
from S.C. category candidate has to be appointed first. Then ST,
VJ/NT & SBC candidates are to be considered as per the 100 point
roster. The circular further provided that if no eligible candidates
were available from a particular reservation category, the next roster
point has to be used for small cadres.
11. By an order dated 11/8/2011, the petitioner was
promoted to the post of JDTP on the reserved post on Ad-hoc basis
till approval from M.P.S.C.. One of the terms provided in the
appointment order mentions that the said promotion is made subject
to the outcome of the decision in Writ Petition No.8452/2004.
12. The circular dated 27/10/2008 which formed the basis
of the promotion of the petitioner was stayed by the Aurangabad
Bench of this Court in Writ Petition No.3077/2011 on 29/9/2011,
which petition was filed (not by the respondent No.1) challenging the
circular dated 27/10/2008 as being contrary to the provisions of the
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Reservation Act which came into force from 29/1/2004.
13. As on 11/8/2011 when the petitioner was promoted to
the post of JDTP there were only two posts available. One post was
meant for the reserved categories. On 29/12/2012, the posts in the
cadre of JDTP were increased to eight. Accordingly, number of
reserved posts increased to three.
14. Thereafter, by an order dated 2/7/2013, the respondent
No.1 was promoted to the post of JDTP. The said promotion of the
respondent No.1 is also on an Ad-hoc basis and is made subject to the
outcome of Writ Petition No.8452/2004. The provisional seniority list
of JDTPs as on 1/1/2014 was published on 1/6/2014. In the said
provisional seniority list the petitioner was shown senior to the
respondent No.1. The final seniority list of JDTPs as on 1/1/2014 was
published on 28/8/2014 wherein the petitioner was shown senior to
the respondent No.1.
15. Writ Petition No.3077/2011 filed before the Aurangabad
Bench of this Court for quashing and setting aside the circular dated
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27/10/2008 was decided on 9th May, 2013. This Court was pleased to
quash and set aside the circular dated 27/10/2008.
16. Shorn of details the Reservation Act was challenged
before the Maharashtra Administrative Tribunal. The position as of
today is that the Reservation Act of 2001 is valid and holds the field.
17. On 13/1/2015, the provisional seniority list of JDTP as
on 1/1/2015 was published. The final seniority list of JDTP as on
1/1/2015 was published on 15/1/2016. The respondent No.1 made a
representation dated 11/2/2016 for the first time challenging the
seniority list for the cadre of JDTP as on 1/1/2015. On 12/2/2016,
the respondent No.1 filed O.A.No.269/2016 before the Tribunal
challenging the final seniority list dated 15/1/2016 as on 1/1/2015.
18. During the pendency of the O.A.No.269/2016, by an
order dated 30/4/2016 the petitioner was promoted as Director,
Town Planning in accordance with the R.R. of 2011. The rules laid
down that for appointment to the post of Director, Town Planning,
three years experience as Joint Director is the criteria. It is the stand
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of the State Government that as the petitioner was the only eligible
candidate having requisite experience, he was promoted to the said
post. The respondent No.1 did not have requisite experience and
therefore, could not be considered for the promotion to the post of
Director, Town Planning.
19. The respondent No.1 during the pendency of the
O.A.No.269/2016 filed Misc. Application No.170/2016 seeking
condonation of delay of 199 days in filing the O.A. The Misc.
Application came to be filed on 13/4/2016. In the said Misc.
Application it is mentioned that as on 20/8/2014 when the final
seniority list of JDTP as on 1/1/2014 was published the respondent
No.1 had sufficient reason not to challenge the same at that point of
time. It is the case of the respondent No.1 in the Misc. Application
that as the promotion given to the petitioner was as per provisions of
circular dated 27/10/2008, the respondent No.1 believed that he had
no reason to have an objection to the seniority list of JDTP published
on 28/8/2014. It is the case of the respondent No.1 that it is only
when the final seniority list as on 1/1/2015 was published on
15/1/2016 by the State Government, that in the meantime, the
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respondent No.1 got information about decision of the High Court in
Writ Petition No.3077/2011 in which the circular dated 27/10/2008
was quashed and set aside as being contrary to the provisions of the
Reservation Act, 2004. It is then that the respondent No.1 made a
representation dated 11/2/2016. Accordingly, the respondent No.1
prayed for condonation of delay of 199 days in filing
O.A.No.269/2016. The said application for condonation of delay was
opposed by the petitioner by filing an affidavit-in-reply. By an order
dated 13/4/2016 Misc. Application No.170/2016 for condonation of
delay was allowed and the delay in filing O.A. was condoned.
20. The Tribunal thereafter proceeded to consider the O.A.
on merits and by the impugned order dated 2 nd May, 2016 was
pleased to allow the O.A. filed by the respondent No.1 thereby
quashing and setting aside the seniority list of JDTP as on 1/1/2015
published on 15/1/2016 and further directed the State Government
viz. the respondent No.2 to decide the date of regular promotion of
the petitioner by calling appropriate review D.P.C. and prepare a fresh
seniority list.
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21. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL
FOR THE PETITIONER :-
(A) Learned Senior Counsel Shri Rafiq Dada submits that the
promotion order dated 11/8/2011 by which the petitioner
was promoted to the post of JDTP was a regular
promotion. The same was in accordance with the circular
dated 27/10/2008. At the relevant time only two posts
were available of which one post was reserved. Though
one post was reserved for ST category, after following the
appropriate procedure the roster point was changed.
Learned Senior Counsel invited our attention to the
proposal dated 7th January, 2011 of the State Government
for promotion of the petitioner as Deputy Director. In the
said proposal, it is mentioned that as no officer from ST
category was available and also if it is not possible to fill in
the post even by rotation then the post should be filled in
from amongst the candidate belonging to the SC as per the
circular dated 27/10/2008 This was pursuant to the
opinion given by the General Administrative Department.
In his submission, a detailed procedure was followed
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before the actual order of promotion dated 11/8/2011
promoting the petitioner as JDTP was issued. He submits
that therefore, the appointment order dated 11/8/2011
has an imprint of legality on it. According to him it cannot
be said to be a void order at its inception having regard to
the fact that the post of JDTP was very much available for
a reserved category and the roster point was changed after
following the due procedure contemplated by the circular
dated 27/10/2008. In his submission, the appointment of
the petitioner cannot be said to be fortuitous appointment
and in fact the same is a regular promotion as the
petitioner was selected for appointment to the said post in
accordance with the selection procedure laid down by the
rules for appointment as JDTP. In his submission, though
the word "Ad-hoc" is mentioned in the order of promotion
but the same is only styled in that fashion, for even State
Government has recognized the said order as a regular
order of promotion. He invited our attention to the order
dated 2/7/2013 promoting the respondent No.1 to the
post of JDTP, which order is of a similar nature as that of
the petitioner. The State Government has taken a stand
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that the order dated 11/8/2011 as well as the order dated
2/7/2013 promoting the petitioner as well as the
respondent No.1 are regular orders of promotion.
(B) Learned Senior Counsel therefore submits that the
respondent No.1 having not challenged the promotion
order dated 11/8/2011 which is a basic order, challenging
the consequential order viz. the seniority list is not
permissible. In the submission of the learned Senior
Counsel once the petitioner is validly appointed, the issue
of seniority follows as a consequence as contemplated by
the Seniority Rules referred hereafter.
(C) In the submission of the learned Senior Counsel the
approach of the Tribunal that the respondent No.1 was not
bound to challenge the promotion since promotion was
void, is not available to the contesting respondent No.1
since the question as to whether the promotion is valid or
invalid is required to be adjudicated by appropriate
application before appropriate forum. The approach of the
Tribunal that the order of promotion dated 11/8/2011 is
null and void without challenging the promotion order, is
contrary to the well established principles of law and
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justice. In support of his contention that without
challenging the order of promotion the consequential
seniority list cannot be challenged, learned Senior Counsel
for the petitioner relied upon the following decisions of the
Apex Court :-
(a) Roshan Lal & Ors. vs. International Airport
Authority of India & Ors. (AIR 1981 SC 597).
(b) P. Chitranjan Menon & ors. vs. A. Balakrishna & ors.
((1997) 3 SCC 255).
(c) Amarjeet Sing vs. Devi Ratan ((2010) 1 SCC 417).
(D) The next submission of the learned Senior Counsel is that
even the final seniority list as on 1/1/2014 published on
28/8/2014 has not been challenged. The respondent No.1
did not raise any objection to the provisional seniority list
published on 1/6/2014. In the submission of the learned
Senior Counsel, the approach of the Tribunal that the 2014
seniority list was not required to be challenged is
misconceived and untenable. According to him the 2014
seniority list was valid and thereafter, the 2015 seniority
list was published. In his submission, there is no
explanation as to why the list of 2014 is not challenged.
(E) Learned Senior Counsel further submits that the judgment
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of the Tribunal is totally fallacious as the question whether
the seniority can be challenged without challenging the
petitioner's promotion is not decided. He invited our
attention to para 6 of the order passed by the Tribunal
where the Tribunal has indicated that though the issue as
regards consequential seniority would be examined
subsequently, however in para 22 the Tribunal records that
- "it is not necessary to consider the issue of the
'consequential seniority' in this O.A. as without considering
that issue this O.A. can be decided.". In the submission of
the learned Senior Counsel the Tribunal ought to have
addressed this issue.
(F) Learned Senior Counsel further assailed the order of the
Tribunal by contending that the Tribunal was not justified
in proceeding on the footing that the petitioner's
promotion was not a regular promotion but fortuitous
promotion. Learned Senior Counsel invited our attention
to the provisions of the Rule 3(f) of the Maharashtra Civil
Services (Regulation of Seniority) Rules, 1982 ('the
Seniority Rules' for short) which explains what a
'fortuitous appointment' means. In his submission a
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reading of the definition would indicate that the
promotion order of the petitioner dated 11/8/2011 cannot
be said to be fortuitous. He also invited our attention to
the provision of Rule 4(1) of the said Seniority Rules
which provides for "general principles of seniority". In his
submission the said Rules provided that the "a seniority of
a government servant in any post shall ordinarily be
determined on the length of his continuous service." In his
submission as the petitioner was continuously working in
the post of JDTP from the date of his promotion dated
11/8/2011, he was therefore promoted as Director, Town
Planning (Maharashtra State) with effect from 30/4/2016.
22. SUBMISSIONS OF LEARNED COUNSEL FOR THE
PETITIONER IN WRIT PETITION NO.8859/2016 (against the
decision of the Tribunal condoning the delay in filing O.A.) :-
(A) In the submission of the learned Counsel Mr.
Bandiwadekar, the Tribunal was not justified in condoning
the delay in filing O.A. The cause of action arose on
11/8/2011 when the petitioner was promoted as a JDTP.
The order dated 11/8/2011 is not challenged. In the
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absence of challenge to this order the Misc. Application for
the condonation of delay itself is not maintainable. The
date of cause of action is 11/8/2011 and the delay has to
be calculated accordingly. There is no explanation in the
application regards delay for this period. He submits that
in any case the seniority list of 2014 which was finalised
on 28/8/2024 was not challenged in O.A. and therefore,
the Tribunal ought not to have entertained the Misc.
Application when the respondent No.1 himself has
calculated the delay from 28/8/2014 viz. the publication
of the final seniority list of JDTP. In his submission, the
circular dated 27/10/2008 was quashed and set aside by
this Court on 9/5/2013. The respondent No.1 was
promoted as JDTP on 2/7/2013 on which date the circular
dated 27/10/2008 was already set aside. He submits that
it is the case of the respondent No.1 that he himself chose
not to challenge the promotion order dated 11/8/2011 as
according to respondent No.1, he was not aware that by an
order dated 9/5/2013 the High Court set aside and
quashed the circular dated 27/10/2008. He further points
out that in Misc. Application for condonation the
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respondent No.1 has taken a stand that he believed that he
had no reason to raise any objection to the seniority list of
JDTP published on 28/8/2014 since the promotion given
to the petitioner was as per the provisions of the circular
dated 27/10/2008. It is further mentioned by the
respondent No.1 in his application that after the seniority
list of JDTP as of 1/1/2015 was published on 15/1/2016,
he got information about the decision of the Hon'ble
Tribunal in O.A.No.927/2012 and the decision dated
9/5/2013 of this Court quashing and setting aside the
circular dated 27/10/2008, therefore the learned Counsel
submits that the respondent No.1 has not shown sufficient
cause for condoning the delay. He urged that firstly the
delay has been wrongly calculated and secondly no
plausible or satisfactory explanation has been given by the
respondent No.1 for the delay. In support of his
submissions the learned Counsel has relied on the
following decisions of the Hon'ble Supreme Court :-
(a) P.K. Ramchandran v/s. State of Kerala & ors.,
(1997) 7 SCC 556
(b) State of M.P. & anr. v/s. Bhailal Bhai & others.
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AIR 1964 SC 1006
(c) R.B. Ramlingam v/s. R.B. Bhvaneswari
(2009 2 SCC 689
(d) Jahed Naziruddin s/o Zaheeruddin & ors. v/s. State
of Maharashtra & ors., 2014 (2) Mh.L.J. 933.
(e) Rajendra Singh & others v/s. Santa Singh & others
(1973) 2 SCC 705
(f) M/s. Tilokchand and Motichand & ors. v/s. H.B.
Munshi & others, 1969 (1) SCC 110
(B) In his submission the delay is condoned by the Tribunal
without there being a satisfactory explanation and good
cause for condoning the delay, the same prejudicially
affects the petitioner as the petitioner has been holding the
post of JDTP right since 11/8/2011 and now he has been
promoted as a Director, Town Planning. In these
circumstances condoning the delay without recording
satisfactory reasons prejudices the petitioner. He further
urged that the conduct of the petitioner in approaching the
Court after such gross delay and that too without
challenging his order of promotion dated 11/8/2011 was
sufficient reason for the Tribunal to have rejected the
application for condonation of delay.
23. SUBMISSIONS OF THE GOVERNMENT PLEADER IN
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WRIT PETITION NO.9291/2016 :-
(A) Learned Government Pleader has in substance raised the
same contentions which have been argued by the learned
Senior Counsel Shri Dada. Learned Government Pleader
invited our attention to the affidavit-in-reply filed before
the Tribunal in support of his contentions. In his
submission the petitioner was appointed when the circular
dated 27/10/2008 was in force. The said circular dated
27/10/2008 was quashed and set aside by this Court after
the petitioner was appointed. In his submission the roster
point was reserved for ST category, however, after
following the procedure laid down by the circular dated
27/10/2008 the petitioner came to be appointed as JDTP
by the order dated 11/8/2011. In his submission, the
petitioner was regularly selected to the said post after
following selection procedure as laid down by the relevant
rules. In his submission, as the petitioner was regularly
appointed as a JDTP with effect from 11/8/2011, after
following the procedure prescribed at the relevant point of
time, the respondent No.1 ought to have challenged the
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promotion order dated 11/8/2011. The respondent No.1's
O.A. only for declaring the seniority list as illegal cannot
be maintained unless respondent No.1 succeeds in getting
the promotion order of the petitioner quashed. By relying
on the Rule 4 of the Seniority Rules of 1982, the learned
Government Pleader contends that seniority of the
petitioner is to be determined on the length of his
continuous service in the post of JDTP. In his submission,
the promotion of the petitioner is not fortuitous as the
petitioner was promoted in accordance with the relevant
recruitment rules then prevailing. It is his submission that
merely because the circular dated 27/10/2008 has been
subsequently quashed and set aside will not automatically
render the order dated 11/8/2011 as illegal and bad-in-
law unless the same is challenged before the appropriate
forum in appropriate proceedings. In his submission, in the
challenge to the order of promotion the State would be
entitled to raise various contentions regarding delay in
approaching the Court, the conduct of the respondent No.1
in filing the O.A. belatedly and also the legality of the
orders made under circular dated 27/10/2008 which
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circular is subsequently quashed and set aside. These
issues can be decided only if the order of promotion dated
11/8/2011 is challenged. Learned Government Pleader
also adopted the contentions raised by Shri Bandiwadekar,
learned Counsel for the petitioner in Writ Petition
No.8859/2016 in support of his case that the Tribunal
should have dismissed the O.A. on the ground of delay and
laches.
(B) He has also contended that even when the respondent
No.1 was appointed as a JDTP in 2013, the said
appointment order also mentions the same is on ad-hoc
basis subject to the outcome of the Writ Petition
No.8452/2004. In his submission, in view of the fact that
all the promotions to the said post were made subject to
the outcome of the Writ Petition that the orders of
promotions are so styled. Nonetheless these are regular
promotion orders after following the due selection
procedure and therefore, the Tribunal was not justified in
proceeding on the footing that the appointment of the
petitioner is fortuitous.
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24. SUBMISSIONS ON BEHALF OF RESPONDENT NO.1 :-
Per contra, learned Senior Counsel Shri Ravi Kadam
submitted that :-
(A) The promotion of the petitioner was completely contrary
to the provisions of the Reservation Act. In his submission,
the petitioner was appointed as per the circular dated
27/10/2008 and if this Court has quashed and set aside
the circular dated 27/10/2008 then whatever has been
done and also all actions taken under the said circular will
be null and void. Learned Senior Counsel invited our
attention to the proposal dated 7 th January, 2011 for
promoting the petitioner to the post of JDTP. In the said
proposal it was clearly mentioned that the post was
reserved for ST. The petitioner belonged to the SC. The
said proposal clearly mentions that the roster point is
changed to ST in view of the circular dated 27/10/2008.
In the submission of the learned Senior Counsel this was
impermissible. Once the circular dated 27/10/2008 itself
is quashed and set aside, the promotion of the petitioner
itself became an illegal appointment and contrary to the
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Service Rules. In his submission, the right to seniority
derives from an appointment which is lawfully made.
(B) Learned Senior Counsel would further submits that as the
petitioner's appointment in the face of Section 4, Section 6
and Section 11 of the Reservation Act is null and void, the
said appointment of the petitioner made contrary to the
Rules is merely fortuitous and such fortuitous
appointment cannot confer a benefit of seniority on the
petitioner over and above the regular/substantive
appointees to the service.
(C) Learned Senior Counsel would submit that since a
fortuitous appointee can be allowed to hold a post, it is
not necessary to challenge his appointment/promotion,
but as he does not have a right to seniority, his seniority
can be challenged without challenging his appointment/
promotion. In his submission the vacancy of the post of
JDTP in which the petitioner was appointed by an order
dated 11/8/2011 was meant for ST category as per roster
GR dated 18/10/1997. He, therefore, submits that in case
of non availability of eligible candidate belonging to the
category for which the post is reserved under the roster,
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the reservation in that category is required to be carried
forward for a period of three years.
(D) Learned Senior Counsel submits that in departure to the
provisions of the GR dated 5/12/1994 and the provisions
of Section 6(1) of the Reservation Act, 2001, a mere
circular was issued on 27/10/2008 making exception in
the case of smaller cadres for shifting of reservation from
one reserved category to another in case of non-
availability of candidate in the category falling under the
roster which is not permissible. The said 'clarificatory
circular' could not override the provisions of the
Reservation Act and 1994 GR. It was only on account of
erroneous clarificatory circular dated 27/10/2008 that the
petitioner came to be promoted to the post of JDTP on
11/8/2011 by shifting the reservation from ST category to
SC category.
(E) In his submission, therefore, once circular dated
27/10/2008 has been quashed and set aside by this
Court's judgment, the same would have retrospective
effect since the same has not been declared to be
prospective and also because the power of prospective
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overruling is vested only in the Supreme Court. Therefore,
the law declared by this Court is assumed to be law from
inception.
(F) Learned Senior Counsel relied upon the following
decisions in support of his contention that the judgment of
the High Court is retrospective in its operation :-
(a) Sureshchandra Varma vs. Nagpur University,
((1990) 4 SCC 55) ;
(b) P.V. George vs. State of Kerala, ((2007) 3 SCC 557) ;
(c) GM, Uttaranchal Jal Sansthan vs. Laxmi Devi,
((2009) 7 SCC 205) ;
(d) B.A. Linga Reddy vs. Karnataka State Transport
Authority, ((2015) 4 SCC 515).
(G) Learned Senior Counsel relied upon the decision of this
Court which has quashed and set aside in circular dated
27/10/2008 (reported in 2013 (5) Mh.L.J. 640). Learned
Senior Counsel would submit that the principle of law is
applicable to all cases irrespective of its stage of pendency
and hence promotion of the petitioner based on the
G.A.D. Circular dated 27/10/2008 is illegal and bad-in-
law.
(H) Learned Senior Counsel would thus contend that upon
setting aside the circular dated 27/10/2008, a situation is
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created where there is no post available for the petitioner
for being promoted as JDTP in SC category as on
11/8/2011. Learned Senior Counsel relied upon the
decisions of the Hon'ble Supreme Court in the case of
(a) Sanjay K. Sinha-II v/s. State of Bihar, ((2004) 10
SCC 734);
(b) Ajit Singh (II) vs. State of Punjab, ((1999) 7 SCC
209);
(c) Bhupendra Nath Hazarika vs. State of Assam,
((2013) 2 SCC 516), in support of his submission that if
the order of promotion itself is void then what required to
be challenged is only the seniority granted to the
petitioner on account of such fortuitous appointment.
(I) Learned Senior Counsel also would submit that Rule 4 (1)
of the Rules of 1982 provides that the service rendered as
a result of a fortuitous appointment shall be excluded for
the purpose of seniority and the appointee shall be
deemed to be appointed to the post only on the date on
which his regular appointment is made in accordance with
the provisions of Recruitment Rules. In his submission, it
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was therefore, not necessary for the respondent No.1 to
have challenged the promotion of the petitioner and
challenge to petitioner's seniority by respondent No.1 by
filing O.A. was sufficient.
(J) Learned Senior Counsel would further contend that the
objection of the petitioner that the seniority list dated
28/8/2014 as on 1/1/2014 was not challenged in O.A. Is
baseless inasmuch as at the time of filing O.A. on
12/3/2016, the seniority list dated 15/1/2016 as on
1/1/2015 was already published by the State. The
seniority list dated 28/8/2014 ceased to exist with the
issuance of seniority list dated 15/1/2016 and in that
sense merged with the later seniority list. As at the time of
filing O.A., the only list which was operational was the
seniority list dated 15/1/2016. The respondent No.1 was
therefore justified in challenging only the seniority list
dated 15/1/2016.
(K) Learned Senior Counsel would further contend that
neither the Reservation Act nor the Seniority Rules, 1982
provides for the promotion with consequential seniority.
Learned Senior Counsel relied upon the decisions of the
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Apex Court in (a) Panneer Selvam vs. Govt. of Tamil
Nadu, ((2015) 10 SCC 292) and (b) B.K. Pavitra vs.
Union of India, ((2017) 4 SCC 620, in support of his
submission that Article 16 (4A) of the Constitution does
not automatically give the consequential seniority in
addition to accelerated promotion to the roster point
promotees and in absence of express provision for
consequential seniority in the Reservation Act or in the
Seniority Rules, the Catch Up Rule will be applicable and
the roster point promotees cannot count their seniority in
the promoted category from the date of their promotion
and the senior general candidates if later reach the
promotional level, general candidates will regain their
seniority in view of law laid down by the Apex Court in
the above decisions. Learned Senior Counsel would
therefore submits that the Tribunal has by a well
considered order allowed the O.A. and hence, there is no
merit in these petitions.
25. SUMISSIONS OF LEARNED SENIOR COUNSEL FOR
RESPONDENT NO.1 IN WRIT PETITION NO.9291/2016 :-
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(A) Learned Senior Counsel Mr. Mihir Desai appearing for the
present respondent No.1, who is also respondent No.1 in
Writ Petition No.9291/2016 filed by the State has
generally canvassed the same contentions as advanced by
the Senior Counsel Shri Ravi Kadam. He has also invited
our attention to the provisions of the Reservation Act and
that the appointment/promotion of the petitioner as JDTP
is completely contrary to the provisions of the Reservation
Act and hence void. He invited our attention to the
findings recorded by the Tribunal to contend that the
Tribunal was justified in allowing O.A. filed by the
respondent No.1.
26. SUBMISSIONS OF LEARNED COUNSEL FOR
RESPONDENT NO.1 IN WRIT PETITION NO.8859/2016 :-
(A) Shri Talekar, learned Counsel for the respondent
No.1 in Writ Petition No.8859/2016 has supported the
order passed by the Tribunal in Misc. Application
No.179/2016 for condonation of delay. In his submission,
in view of the stand taken by the learned Senior Counsel
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Mr. Ravi Kadam, it was not necessary for the respondent
No.1 to have challenged the order of promotion of the
petitioner. Shri Talekar submits that the Tribunal has given
cogent reasons for condoning the delay and found that the
explanation offered by the respondent No.1 was sufficient.
In his submission, upon publication of the seniority list on
28/8/2014 as on 1/1/2014, the applicant has sufficient
reason not to file O.A. at that time. It is only after getting
knowledge about the correct position in law and after the
petitioner having got information about the decision of
this Hon'ble Tribunal in the case of V.R. Naik in
O.A.No.927/2012 and the judgment of this Court at
Aurangabad Bench in Writ Petition No.3077 of 2011 in
which the circular dated 27/10/2008 was quashed and set
aside as being contrary to the provisions of the
Reservation Act that the O.A. was filed. Though the
respondent No.1 protested against his lower placement
vis-a-vis the petitioner in the seniority list by making
representation dated 11/2/2016, his grievance was not
redressed. It is in these circumstances that there was delay
of 199 days in filing O.A. which Tribunal has rightly
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condoned in the interest of justice. He further submits
that the petitioner cannot be allowed to take advantage of
void appointment order and hence the order passed by the
Tribunal condoning the delay calls for no interference
according to him. Mr. Talekar relied upon the decision of
the Apex Court in the case of Shiba Shankar Mohapatra
and ors. v. State of Orissa and ors. (2010) 12 SCC 471,
wherein the Apex Court contend that even 3-4 years is a
reasonable period for challenging the seniority and in case
someone agitates the issue of seniority beyond this period,
he has to explain the delay and laches in appropriating
the adjudicatory forum by furnishing satisfactory reasons.
Shri Talekar also relied upon the decisions in the case of:
(a) Ramchandra Shankar Deodhar v. The State of
Maharashtra & ors., (1974) 1 SCC 317 ;
(b) N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC
123 ;
(c) Dinkar Anna Patil and another v. State of
Maharashtra and others, (1999) 1 SCC 354 ;
(d) Sanjay Jadhav v. Joint DHE Aurangabad, (2016) 2
Mh.L.J. 126, which lay down what are the decisive
factors to be taken into consideration in the
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matter of condonation of delay. Mr. Talekar therefore
submitted that no interference in the view taken by the
Tribunal condoning the delay is warranted.
27. Having heard the submissions advanced, we now
proceed to consider the submissions on merits. At the outset, we may
indicate that though the petitioner has tried to make out a case that
the change in roster point is not only under 2008 circular but
independent of 2008 circular, however, we find from the stand taken
by the State Government and from the proposal for the petitioner's
promotion, the petitioner, in fact is appointed as JDTP after changing
the reservation from ST to SC in accordance with the circular of
2008.
28. The petitioner, who belongs to SC category, was
promoted by an order dated 11/8/2011 as JDTP as against the post
reserved for ST category by changing the reservation. The petitioner
is working as JDTP with effect from 11/8/2011. The respondent No.1
is promoted as JDTP with effect from 2/7/2013. Admittedly, the
respondent No.1 was senior to the petitioner in the feeder cadre post
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of Deputy Director, Town Planning. The provisional seniority list of
JDTP was published on 14/6/2014 when the petitioner was shown as
senior to the respondent No.1. No objections were raised to the said
provisional seniority list. The final seniority list of JDTP was
published on 28/8/2014 when the respondent No.1 was shown
senior to the respondent No.1. On 13/1/2015, the provisional
seniority list of JDTP as on 1/1/2015 was published which also was
not objected by the respondent No.1. On 15/1/2016, the final
seniority list as on 1/1/2015 was published where-after the
representation was made by the respondent No.1 on 11/2/2016. The
O.A. is filed on 12/2/2016 before the Tribunal. These facts have been
repeated by us in a nutshell to appreciate the controversy in the light
of the submissions made by the learned Counsel.
29. As indicated earlier the petitioner was appointed on
11/8/2011, upon changing the roster point in accordance with the
2008 circular. It is thereafter that the Aurangabad Bench of this Court
in Writ Petition No.3077/2011 quashed and set aside the circular
dated 27/10/2008 by its judgment and order dated 9th May, 2013.
Before the Tribunal the petitioner's order of promotion dated
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11/8/2011 is not challenged as in the submission of the learned
Senior Counsel for the respondent No.1, in view of the quashment of
the circular dated 2008 being contrary to the Reservation Act,
consequently any action taken/order passed under the circular is null
and void since inception. In his submission the petitioner, therefore,
cannot claim seniority on the basis of such a void promotion order
dated 11/8/2001 and hence the appointment of the petitioner in the
said post is fortuitous.
30. Admittedly, the promotion order dated 11/8/2011 of the
petitioner has not been challenged in O.A.. It would be material to
consider the following relevant statutory provisions for deciding the
controversy :-
(A) Reservation Act - Section 4 :- (1) Unless otherwise provided by or
under this Act, the posts reserved for the Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Special Backward Category and Other Backward Classes shall
not be filled in by the candidates not belonging to that castes, tribe,
category or class for which the posts are reserved.
(2) Subject to other provisions of this Act, there shall be posts
reserved for the persons belonging to the Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Special Backward Category and Other Backward Classes, at
the stage of direct recruitment.
Section 6 :- (1) If in respect of any recruitment year, any vacancy
reserved for any category of persons under sub-section (2) of section
4 remains unfilled, such vacancy shall be carried forward upto five
years in case of direct recruitment and three years in case of
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promotion :
Provided that, on the date of commencement of this Act, if any
Government order regarding filling up the posts, in case of non
availability of Backward Class candidates are in force, such
Government orders shall continue to be in force unless modified or
revoked, by Government.
(2) When a vacancy is carried forward as provided in sub-
section (1) it shall not be counted against the quota of the vacancies
reserved for the concerned category of persons for the recruitment
year to which it is carried forward :
Provided that, the appointing authority may, at any time undertake a
special recruitment drive to fill up such unfilled vacancies and if such
vacancies remain unfilled even after such special recruitment drive
then, it shall be filled up in the manner prescribed by Government.
Section 11 :- Any appointments made, in contravention of the
provisions of this Act shall be void.
(B) Recruitment Rules of 2011 - Rule 3 :- Appointment to the post of
the Director of Town Planning, Group-A shall be made by promotion
of a suitable person on the basis of strict selection with due regard to
seniority, from amongst the persons holding the post of Joint
Director of Town Planning in the Directorate, having not less than
three years regular service in that post.
(C) The Maharashtra Civil Services (Regulation of Seniority) Rules,
1982 - Rule 3 (f) : "Fortuitous Appointment" means a temporary
appointment made pending a regular appointment in accordance
with the provisions of the relevant recruitment rules.
Rule 4 : General Principles of Seniority :-
(1) Subject to the other provision of these rules, the seniority of a
Government servant in any post, cadre or service shall ordinarily be
determined on the length of his continuous service therein :
Provided that, for the purpose of computing such service, any period
of absence from the post, cadre or service due to leave, deputation
for training or otherwise or on foreign service or temporary
officiation in any other post shall be taken into account, it the
competent authority certifies that the Government servant concerned
would have continued in the said post, cadre or service during such
period, had he not proceeded on leave or deputation or been
appointed temporarily to such other post :
Provided further that, the service, if any, rendered by him as a result
of a fortuitous appointment *[except in a case where the competent
authority certifies that, it was not expedient/possible or practicable
to make a regular appointment strictly in accordance with the ratio
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of recruitment as prescribed in the relevant recruitment rules, with
the brief reasons recorded therefor,] shall be excluded in computing
the length of service and for the purposes of seniority he shall be
deemed to have been appointed to the post or in the cadre or service
on the date on which his regular appointment is made in accordance
with the provisions of the relevant recruitment rules.
31. After going through the proposal dated 7th January,
2011, it is very clear that post in which the petitioner was promoted
was reserved for ST candidate. In view of the circular dated
27/10/2008 the roster point was changed and the petitioner who
belonged to the SC category was appointed in the reserved post
meant for ST by an order dated 11/8/2011. At the relevant time,
when the petitioner's case came up for consideration in 2011 there
were two posts of JDTP. One was already filled in from the Open
Category and the other was meant for ST category. As no eligible ST
candidate was available the roster point was changed in view of the
circular dated 2008 and the petitioner was selected for appointment
as JDTP after changing the roster point. By following the procedure
laid down in the circular of 2008 the roster point was changed from
ST to SC and the petitioner came to be selected. As per the rules the
petitioner was only eligible reserved category candidate and therefore
though he belonged to SC category he was promoted as JDTP after
changing the roster point. The said appointment was not a temporary
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appointment made pending a regular appointment. It is the specific
case of State Government that after changing the roster point in
accordance with then existing circular of 2008 that the petitioner was
selected and petitioner's promotion was a regular promotion only
subject to the outcome of the Writ Petition No.8452/2004. In our
opinion, the promotion of the petitioner, therefore, cannot be said to
be a fortuitous having regard to the definition of the Rule 3 (f) of the
Seniority Rules of 1982.
32. Insofar as the contention of the learned Senior Counsel
for respondent No.1 that the promotion of the petitioner being void
since inception as the same is contrary to the statutory provisions and
rules in force, we of the opinion that at the relevant time when the
petitioner was appointed on 11/8/2011 the circular dated 2008 was
holding the field. Based on this circular the roster point underwent a
change and the petitioner was duly selected for promotion. No doubt,
the circular dated 27/10/2008 has been subsequently quashed and
set aside by this Court by judgment and order dated 9 th May, 2013. In
our opinion, learned Senior Counsel Shri Dada is justified in
contending that at the relevant time, when the petitioner was
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promoted, there was an imprint of legality to the said promotion. We
find that even the respondent No.1 has so understood and hence
taken a specific stand that since the said promotion was given to the
petitioner as per the government circular dated 27/10/2008 the
respondent No. 1 believed that he could have no reason to raise any
objection to the seniority list of JDTP published on 28/8/2014 (para
6 of the Misc. Application for condonation of delay). The respondent
No.1 has further taken a stand that after he got knowledge of the
order of this Court in Writ Petition No.3077/2011 and decision of the
Tribunal in O.A.No.927/2012 that he decided to contest the seniority
list published on 15/1/2016.
33. The arguments of learned Senior Counsel Shri Ravi
Kadam though at the first blush seems attractive, however having
regard to the fact that at the relevant point of time the order of
promotion had an imprint of legality, which pursuant to the decision
of this Court renders itself open to challenge on account of the
quashment of the circular dated 27/10/2008, we are, therefore,
unable to persuade ourselves to accept the contention of the learned
Senior Counsel Shri Ravi Kadam that without challenging the order
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of promotion, only seniority list can be challenged. The order of
promotion is dated 11/8/2011. Respondent No.1 is appointed on
2/7/2013. It is only when the second seniority list was finalized on
15/1/2016 that the respondent No.1 chose to file O.A. in February,
2016. Even the reason for the delay offered by the respondent No.1
in filing O.A. is lack of knowledge of the order passed by this Court in
Writ Petition No.3077/2011 quashing the circular dated 27/10/2008.
In our opinion, having regard to these circumstances, when the
petitioner has worked on the promoted post of JDTP right from
11/8/2011, without challenge to the order of promotion the
consequential seniority cannot be challenged.
34. In this regard we may usefully refer to the decision of the
Apex Court in the Case of Roshan Lal (supra) more particularly para
4 which reads thus :-
"4. One of the principal submissions made by Smt. Shyamla Pappu,
learned Counsel for the petitioners was that the appointment of the
respondents as Air port Officers (Ops.) was made at a time when
there was no sanction for such posts and therefore their appointment
was illegal. Other reasons were also advanced in support of the claim
that the respondents were irregularly appointed as Airport Officers.
We are afraid that it is rather late in the day for the petitioners to
question the appointment of the respondents as Airport Officers
(Ops.). The respondents were appointed as Airport Officers in 1975
and the present Writ Petitions were filed in 1978. We do not think
we will be justified in reopening the question of the legality of the
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appointment of respondents as Airport Officers several years after
their appointment. We also notice that the prayer in the Writ
Petitions also is confined primarily to the seniority list and the
consequences flowing from the seniority list."
35. A profitable reference can also be made to the decision
of the Apex Court in the case of P. Chitranjan Menon (supra), the
relevant portion of paras 5 and 9 which reads thus :-
"5. The respondents who were the petitioners in the writ petition
were integrated in the service. The Government passed orders laying
down the principles of integration of the District Board employees
and the Panchayat Executive Officers and Panchayat Officers. The
impugned orders under the writ petition are Ext. P-10, Ext. P-12 and
Ext. P-15. It is also prayed that Ext. P-17 may be quashed. The
Government in Ext. P-10 came to the conclusion that the vacancies
on the advice of the Public Service Commission and the appointment
of those that had been advised on December 28, 1961, arose only on
the dates enumerated in the order Ext. P-10 commencing from
December 30, 1961, and ending with January 2, 1962 and that the
appointment can only be on occurrence of the vacancies. We do not
see on what basis Ext. P-10 could be challenged. Ext. P-10 refers to
GO MS 93/62 dated February 13, 1962. By the GO of 1962, 16
respondents in the writ petition were promoted as Executive Officers
Grade I on the advice of the Public Service Commission. The
promotion of the respondents in the writ petition having been
ordered as early as February 13, 1962, without challenging that
order a subsequent order which determined the date of their
commencement of service cannot be challenged. In fact, the
respondents were appointed to the higher posts on December 28,
1961, and they took charge on December 30, 1961, December 31,
1961, January 1, 1962 and January 2, 1962. The respondents in
this petition were integrated into the service only on January 1,
1962. Their position in the service was to be determined by the
Government later. If the respondents were aggrieved at the posting to
the higher post of the present appellants and others they ought to
have even challenged promotion which was made on January 1,
1962. Not having questioned the legality of the promotion or the GO
of 1962 it is too late for them to question the validity of the GO of
1969 by filing a writ petition in the year 1972."
9.While the earlier judgments were all decided against the
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respondents, the Kerala High Court in the judgment under appeal
took a different view. The decision under appeal proceeds on the basis
that a regrettable mistake crept into the judgment in O.P. 1431 of
1970 and the earlier decision proceeded on the basis that there was a
III Grade mentioned in G.O. 814 dated November 17, 1962. The
High Court was of the view that there was a III Grade under the G.O.
Above referred to, the earlier decision missed the fact that these
grades were not applicable on January 1, 1962. Though G.O. 814 of
1962 was not placed before us we are not sure whether there was
any mistake in the earlier judgment for the G.O. MS 97/67 dated
March 18, 1967, refers to persons being transferred from the
Malabar District Board as Panchayat Executive Officers III Grade. Be
that as it may, we are satisfied that the respondents are not entitled
to the reliefs prayed for by them in the writ Petitions. As the
appellants were promoted to a higher post before the respondents
were integrated into the Government service on January 1, 1962.
Further throughout the appellants have been treated as occupying a
higher post and respondents much lower post. Though the promotion
of the appellants was before January 1, 1962, and was confirmed by
various orders of the Government the respondents herein did not
choose to challenge the orders till the year 1974. In the
circumstances, we are satisfied that the order of the Kerala High
Court has to be set aside and the appeal is allowed with costs.
36. We may also refer to the decision of the Apex Court in
the case of Amarjeet Singh (supra) more particularly paras 27, 28
and 29.
"27. In H.V. Pardasani etc. Vs. Union of India & ors., AIR 1985 SC
781, this Court observed that if "petitioners are not able to establish
that the determination of their seniority is wrong and they have been
prejudiced by such adverse determination, their ultimate claim to
promotion would, indeed, not succeed."
28. A similar view had been reiterated by this Court in Government
of Maharashtra & ors. Vs. Deokar's Distillery, (2003) 5 SCC 669.
These appeals are squarely covered by the aforesaid judgments. We
are of the considered opinion that in absence of challenge to the
promotion of the appellants, relief of quashing the consequential
seniority list could not have been granted.
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29. Sum up:
Admittedly, the respondents were over and above the appellants in
the seniority list of Excise Inspectors. The rules of 1992 were
amended in the year 1994, changing the criterion for promotion
from "merit" to "seniority subject to rejection of unfit". Forty two
posts of AEC were to be filled up from the Excise Inspectors, as no
Excise Superintendent was available for being considered for
promotion to the post of AEC. The State Government wanted to fill
up the said vacancies by applying the amended rules. On being
challenged by some of the appellants, the High Court held that the
vacancies which occurred prior to the amendment of 1992 Rules,
namely, 10.10.1994 had to be filled up according to the unamended
rules. The operation of the judgment and order of the High Court
was stayed by this Court making it crystal clear that promotions so
made under the amended rules would be subject to the decision in
special leave petition. Accordingly, 61 Officers/respondents were
promoted. Subsequently, this Court dismissed the SLP vide order
dated 18.8.1998 in limine. The officers/ respondents so promoted
were not reverted. The DPC was held on 19.12.1998 to fill up said
42 vacancies, but only 30 candidates/appellants were found eligible
to be promoted to the post of AEC. The respondents were found
unsuitable. In order to give the said respondents a second chance, the
State Government carried forward the remaining 12 vacancies and
directed to fill up the same under the amended Rules, and for that
purpose another DPC was convened on 22.1.1999 and they were
promoted on the basis of different criterion. Promotions were made
with retrospective effect determining the yearwise vacancies.
Appellants had been given promotion notionally against the
vacancies, occurred in the recruitment year 1995 while the
respondents were promoted notionally against the vacancies of the
recruitment years 1996 and 1997. Thus, the High Court committed
an error while recording the finding of fact that both set of officers
had been promoted notionally from one and the same date.
Admittedly, promotions were not made with effect from one and the
same date. Appellants and respondents were promoted against the
vacancies which had occurred in different recruitment years under
different Rules and on different criterion. Thus, the respondents
would rank below the appellants in seniority. Therefore, there could
be no justification to hold that their inter se seniority in the feeding
cadre would be relevant for determining the seniority of AECs. More
so, had the interim order not been passed by this Court, the
appellants could have been promoted under the unamended rules
much earlier. Thus, they are entitled for equitable relief, as the effect
of the interim order of this Court was required to be neutralised. The
appellants had been promoted with an earlier date, thus, are bound
to be senior than respondents who had been promoted with respect
from a later date. No employee can claim seniority prior to the date
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of his birth in the cadre."
37. In our opinion reliance placed by the learned Senior
Counsel for the respondent No.1 on the decision of the Apex Court in
the case of Sanjay K. Sinha (supra) and Ajit Singh (supra) can have
no application to the facts of the present case. In the case of
Bhupendra Nath Hazarika (supra) in para 27 the observations made
in Roshan Lal (supra) are considered. As already observed herein
before, at the time when the petitioner was promoted the same was
not dehors the Recruitment Rules but it is only later upon setting
aside the circular of 2008 that the order of promotion became open
to challenge. In a challenge to the order of promotion pursuant to the
quashment of the circular dated 27/10/2008, the petitioner would
have a right to defend his promotion on the grounds available in law.
38. It is only on the count of the circular being struck down
which has made the action taken under the circular open to
challenge. It is not as if the petitioner was promoted dehors the Rules
prevailing at the time of his promotion. Even the respondent No.1 in
his belated challenge to the seniority list explained that there was no
reason for him to challenge the promotion order at the relevant time
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as the circular of 2008 was in force and as the petitioner was
promoted under the said circular. The respondent No.1 chose to
challenge the seniority list only when he got knowledge about the
quashment of the circular. Moreover in respect of the promotion
effected on 11/8/2011, the O.A. is filed by the respondent No.1 only
in February, 2016 almost after more than 5 years. Even the circular of
2008 was struck down by this Court in 2013 and it is obvious that at
the stage of consideration of the petitioner as Director, Town
Planning that the seniority list is challenged by the respondent No.1.
It is in these circumstances, in our opinion the petitioner is justified
in objecting to the filing of the O.A. on the ground that as the order
of promotion is not challenged, only the seniority cannot be
challenged. The law laid down by the Hon'ble Supreme Court on the
aspect of retrospectivity of the decision of this Court is very clear. In a
challenge to the circular of 2008 this Court has quashed and set aside
the circular of 2008. In the fact situation of the present case the
petitioner is entitled to raise all contentions available to him in law as
permissible in an appropriate challenge to the promotion order and
as to the consequence and legal effect of quashment of the circular
which formed the basis of issuance of the promotion order.
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39. We, therefore, are of the opinion that without
challenging the promotion order dated 11/8/2011 of the petitioner,
the Tribunal was not justified in proceeding on the footing that the
appointment of the petitioner is a fortuitous appointment being in
contravention of the Recruitment Rules. Whether the order of
promotion is valid or invalid is required to be adjudicated before
going into the question of legality of the seniority list. In our opinion,
the Tribunal ought to have dismissed the O.A. on the count that the
order of promotion dated 11/8/2011 which forms the basis of the
seniority has not been challenged.
40. In the light of the view taken by us the O.A. must fail on
the ground that the promotion order dated 11/8/2011 has not been
challenged. In this view of the matter the cause of action would
relate back to 11/8/2011. Consequently the O.A. must also fail on the
ground of delay as the delay has been explained only from
28/8/2014. In our opinion even this delay has not been explained
satisfactorily. We find that the Tribunal was not justified in condoning
the delay in filing the O.A. The respondent No.1 himself has taken a
position that it is only upon knowledge of the order of this Court in
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Writ Petition No.3077/2011 passed on 9/5/2013 quashing the
circular of 2008, which knowledge he derived sometime after the
publication of the second seniority list on 15/1/2016 that the
respondent No.1 protested against the seniority list. Even after the
promotion of the respondent No.1 in 2013 and after publication of
the first provisional seniority list of JDTP on 1/6/2014, the
respondent No.1 took no objection to the seniority list. The
respondent No.1 has taken a stand that he had no reason to raise any
objection to the seniority list published on 28/8/014 as he believed
that the promotion was given to the petitioner as per the provisions
of the circular dated 27/10/2008. Even after the provisional seniority
list of JDTP as on 1/1/2015 was published on 13/1/2015, the
respondent No.1 never raised any objection. He raised objection for
the first time on 11/2/2016 after the final seniority list of JDTP as on
1/1/2015 was published on 15/1/2016. The respondent No.1 has
thus accepted the position that the appointment of the petitioner was
in accordance with the circular dated 27/10/2008 and it is only after
deriving knowledge that the said circular has been set aside that he
choses to file the O.A. In our opinion, the respondent No.1 has not
acted with due diligence and having regard to what is stated
hereinabove we are inclined to hold that the Misc. Application filed
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by the respondent No.1 ought to have been dismissed by the Tribunal
on the ground of delay and laches. We may hasten to add that the
objection of the petitioner as regards delay in filing the O.A. is
considered by us only in the context of the respondent No.1's
challenge to the seniority as we have taken a view that the
respondent No.1 should have challenged the order of promotion
which forms the basis of seniority.
41. In the light of the view taken by us, we have not gone
into the other contentions raised by the learned Senior Counsel Shri
Dada. Hence the following order :-
ORDER
1. Writ Petition No.8860/2016 and Writ Petition
No.9291/2016 are allowed. The impugned order dated 2/5/2016
(corrected vide order dated 16/6/2016) passed by the Maharashtra
Administrative Tribunal, Mumbai, in O.A.No.269/2016 is quashed
and set aside. Consequently, O.A.No.269/2016 is dismissed.
2. Writ Petition No.8859/2016 is allowed in terms of prayer
Clause (b).
3. Rule accordingly made absolute with no order as to
costs.
(M.S. KARNIK, J.) ( SMT. V.K. TAHILRAMANI J.)
