and consequential seniority list dated 12/6/2017.
claim deemed date of appointment, dating back to 22/3/2000.
2. The facts, as have been narrated by the learned
counsel for the petitioners, are as follows.
for appointment to the post of PSI. 50% of the posts were to
Service Commission (MPSC). 25% by Limited Departmental
Out of the 'B' category posts, 850 vacancies have
already been filled up. As such, 572 were clear vacancies in
the year 1997-98. No examinations were conducted by MPSC
until August 1998. The State Government made a requisition
to the MPSC for 241 vacancies in 'B' category. The MPSC, in
turn, issued advertisement for 241 vacancies. It, however,
decided to hold examination for only 179 candidates. In the
examination held therefor, 726 candidates ('B' category) were
found eligible for physical test. 605 of them cleared both
physical test and viva-voce (interview). Although 605
candidates had cleared the examination, only 179 candidates
were recommended. These 179 candidates were given
appointment on 22/3/2000 and were immediately sent for
training.
:: 4 ::
3. Some of the candidates who were not
recommended, filed Original Application (No.630/1999) before
the MAT, contending that they were eligible and, therefore,
deserved to be recommended. In April 2000, the State
Government filed affidavit in the said application, making a
statement that 463 vacancies would be filled up by appointing
the candidates who cleared the examination held in 1998. The
application was thus disposed of. The State Government then
sent the requisition to the MPSC for 463 vacancies. The
MPSC, however, recommended only 48 candidates. These 48
candidates were appointed and deputed for training in April
2001. Thus, total 227 candidates (179+48) were given
appointment.
4. Remaining 378 candidates (including the
petitioners) filed Original Application, (No.308/2001), asking for
recommendation of their names. In June 2001, the MAT
directed the MPSC to further recommend 150 candidates. The
MPSC, therefore, recommended 150 candidates (including the
petitioners). Remaining 228 candidates filed Writ Petition
:: 5 ::
(No.4625/2008) for similar relief. The MPSC had also filed
Writ Petition challenging the order of the MAT, directing it to
recommend 150 additional candidates. The MPSC was
directed to fill up the remaining 406 vacancies. As per the
record, only 372 candidates were actually recommended. The
matter had reached the Apex Court in Special Leave Petition.
The MPSC was, however, unsuccessful therein. Its attempt to
urge for review and even Curative Petition also failed.
Thereafter, on 1/6/2004, the MPSC actually forwarded names
of 358 candidates from 'B' category. Thus, the actual
appointments numbered as below :
179+48+358. The petitioners were from the batch
recommended for appointment on 1/7/2004.
5. The total 601 candidates were given regular
promotion on vacant posts. Though no posts were available,
still 284 persons were given nominal/ adhoc promotions in 'C'
category. Sr.Nos.1 to 17 were of 1992 and 1995 batches
(examinations) while the remaining were from the batch
selected in August 2000. 354 candidates from 'C' category
:: 6 ::
approached the MAT. Their Original Application was allowed,
granting them grace marks. These 354 candidates were also
given promotion although the posts were not available.
6. The respondent No.2 DGP cancelled earlier
promotion list and a fresh list was prepared on the basis of age
factor, instead of merit. The same caused intermingling of the
candidates from all the three categories (A, B & C). The
aggrieved, therefore, approached MAT with a prayer for
cancellation of the order of preparing a fresh promotion list.
The said application was dismissed. A Writ Petition was,
therefore, preferred (465/2009). A compromise was entered
into between the petitioners therein and the office of the DGP.
The Writ Petition was disposed of in terms of the compromise.
Since no consent of the State Government was obtained for
settlement, the order disposing of the Writ Petition in terms of
the compromise was set aside. In February 2013, Writ Petition
(No.465/2009) was ultimately disposed of with the following
directions.
"(i) The appointments, seniority and promotion
of B- category candidates should not be disturbed.
:: 7 ::
(ii) The promotion order dated 15/11/2006 was
maintained as it is granting the deemed date of
promotions. However, modified the three lists of
promotion in C-category changing the criteria of
preparation from age factor to merit only by
showing 601 first, thereafter, 284 and thereafter,
354 below them. This specifically implies that, 601
are granted promotions w.e.f. 30/4/2001, 284 from
15/11/2006 and 354 thereafter."
7. One Shri Digambar Bhadane, who had appeared
for examination of PSI from 'B' category (LDE) in the year
1998, who could not join on 22/3/2000 like the present
petitioners, he was given post (appointment) on 1/6/2004 along
with the petitioners and other similarly situated candidates.
He, therefore, made representation for grant of deemed date of
appointment. Shri Bhadane then filed Original Application
before the MAT. The same was allowed. The order therein
was challenged in Writ Petition. It was partially allowed,
remanding the matter back to MAT. The MAT again allowed
Shri Bhadane's application. Thereafter, the order passed in
favour of Shri Bhadane had not been taken exception to. The
same attained finality. On the ground of parity as well, the
petitioners claim entitlement for similar relief.
:: 8 ::
8. Original Application, No.37/2015 was filed by 'B'
category candidates for grant of deemed date of appointment.
The MAT directed the DGP to consider the pending
representations. The DGP allowed the same. The contesting
respondents herein challenged the said order before MAT.
The MAT allowed the said application along with the
Application, 1094/2015. The petitioners are, therefore, before
this Court.
9. The learned Senior Counsel would submit that, the
case of the petitioners is alike the case of Shri Bhadane.
According to him, only a claim for deemed date of appointment
is to be given to the petitioners. No candidate from any other
category is thereby likely to suffer a prejudice. According to
him, it was no fault of the petitioners. Due to pendency of the
judicial proceedings before the MAT, High Court and even
Apex Court as well, orders regarding issuance of appointment
to the petitioners were delayed. He adverted our attention to
the observations made by the Division Bench of this Court in
Writ Petition No.465/2009 and other connected matters,
wherein it has been observed in paragraph No.8 as under :
:: 9 ::
"8. We once again clarify that neither
appointments nor promotions or seniority of PSIs
appointed under categories (a) and (b) as referred to
in paragraph 3(A) of this order are intended to be
affected by virtue of this order or anything stated in
this order. This is because, in the present petitions,
we are only concerned with appointments to the PSIs
made under category (c) i.e. departmental
promotions."
10. The learned Senior Counsel, relying on the Apex
Court judgment in case of Asis Kumar Samanta & ors. Vs.
State of West Bengal & ors. (2014) 10 SCC 357, urged for
allowing the Writ Petition.
11. The learned A.G.P. and the learned Advocate
representing respondent No.15 reiterated the reasons given by
the MAT in support of the order impugned herein.
12. We have considered the submissions advanced.
Perused the relevant Seniority Rules (Maharashtra Civil
Services (Seniority) Rules, 1982), the order impugned herein
and the documents relied on.
13. Way back in the year 1998, a requisition was made
:: 10 ::
by the State Government to the MPSC for holding examination
for appointment/ recruitment to the post of PSI ('B' category).
The advertisement was, therefore, issued for 241 vacancies.
The MPSC held examination only for 179 vacancies. Little
over 600 candidates had cleared the examination, written,
physical and oral as well. Only 179 candidates were
recommended. Those who had cleared the examination but
not recommended, approached the MAT. On the MAT's
intervention, additional 48 candidates were recommended.
The others so claimed to have been left out, preferred Original
Application. The MAT directed the MPSC to recommend
further 150 candidates. The petitioners herein are from those
150 candidates. The said direction was issued in June 2021.
Before the said order was issued, the first batch of 179
candidates was given appointment on 22/3/2000. The
direction given by the MAT for giving appointment to additional
150 candidates was subject to judicial review, in Writ Petition
and in SLP as well. The order of the MAT was ultimately
maintained/ affirmed in May/ June 2004. Thereafter only those
150 candidates including the petitioners were given
appointment on 1/6/2004. Here, the learned counsel would
:: 11 ::
submit that, it was not the fault of the petitioners. It is only on
account of the judicial proceedings wherein the selection of the
petitioners was under challenge. In the case of Asis Kumar
(supra), it has been observed :
Service Law - Seniority - Retrospective operation of
applicable service rules - Can be effected from a date
prior to the vacation of Court stay order, provided the
selection process commenced after the vacation of the
stay.
Vacancy against promotion quota occurring
on1/1/1989 but no promotions made because of
interim order passed by High Court restraining
authorities from giving promotion - Stay order
vacated on 11/12/1990 - Selection process for
promotion commenced only thereafter - For this
reason Public Service Commission recommended that
private respondents be given retrospective seniority
with effect from 31/12/1990 - As per R. 6(2) of the
1981 Rules, however the promotees shall be en block
senior to the direct recruits of the same year - Thus,
as per R. 6(2) the private respondents in the writ
petition were given notional seniority with effect from
1/1/1990 - Held, since the selection process was
commenced after the vacation fo the stay order, the
benefit of R. 6(2) that the promotees shall be en bloc
senior to the direct recruits of the same year, cannot
be denied to the private respondents - W.B. Services
(Determination of Seniority) Rules, 1981, R.6(2) -
Administrative Law - Administrative Action -
Administrative or Executive Function -
Implementation of Court orders/ Compliance with
judicial precedents - Contempt of Court - Civil
Contempt - Instances of civil contempt -
Disobedience of interim/ interlocutory orders - What
is not - Action taken after vacation of stay, but rules
:: 12 ::
providing for retrospective effect.
14. In paragraph No.3 of its judgment, it has been
observed thus :
"3. Applying the above legal position to the facts of
the present case, it may be noted that vacancy against
promotion quota in the cadre of 22 Forest Rangers
occurred on 1.1.1989. But their case could not be
processed because of the interim order passed by the
High Court restraining the authorities from giving them
promotion to the West Bengal Forest Service. The stay
order was vacated on 11.12.1990. It was only thereafter
the selection process for promotion commenced. It was
for this reason that the Public Service Commission
recommended that private respondents be given
retrospective seniority with effect from 31.12.1990. As
per Rule 6(2) of the W.B. Services (Determination of
Seniority) Rules, 1981 (for short, ''1981 Rules'') the
promotees shall be en bloc senior to the direct recruits
of the same year; the private respondents in the writ
petition were given notional seniority with effect from
01.01.1990."
15. In the first blush, it may appear the petitioners to
have a good case. The facts are, however, otherwise. When
the State Government made a requisition to the MPSC way
back in August 1998, there were only 249 vacancies. The
number of vacancies was reduced to 179. The examination
was conducted for filling up only 179 vacancies. Even the
MPSC recommended those successful 179 candidates who
:: 13 ::
were in order of merit in the select list. They were given
appointment on 22/3/2000. It is only on account of the
petitioners and other candidates who were found to have
cleared the examination/ selection process, approached the
MAT and this Court as well, and on the statement made by the
State Government, that more than 463 posts would be filled up
from the very selection process, a few more candidates in two
batches, namely 48 and 150 were, therefore, given
appointments on 1/6/2004. The petitioners are from amongst
those second and third batch. Now they want a notional date
of appointment as that of the first 179 candidates given
appointment on 22/3/2000. Admittedly, during the intervening
period, that too in 2001, a few candidates from 'C' category
were appointed. The contesting respondents herein are from
the said category. In terms of the Seniority Rules, a gradation
list was prepared. For better appreciation, the relevant Rules
of 1982 are reproduced below :
"4. General Principles of seniority :-
(1) Subject to the other provisions 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 :
:: 14 ::
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 officiating in any
other post shall be taken into account, if 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 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 of
recruitment as prescribed in relevant recruitment rules,
with the brief reasons recorded therefor), shall be
excluded in computing the length of service and for the
purpose 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.
(2) Notwithstanding anything contained in sub-rule
(1), --
(a) the inter se seniority of direct recruits selected in
one batch for appointment to any post, cadre or service,
shall be determined according to their ranks in the order
of preference arranged by the Commission, Selection
Board or in the case of recruitment by nomination
directly made by the competent authority, the said
authority, as the case may be, if the appointment is taken
up by the person recruited within thirty days from the
date of issue of the order of appointment or within such
extended period as the competent authority may in its
:: 15 ::
discretion allow;
(b) the inter se seniority of Government servants
promoted from a Select List shall be in the same order in
which their names appear in such Select List. If the
Select List is prepared in two parts, the first part
containing the names of those selected unconditionally
and the second part containing the names of those
selected provisionally. All persons included in the first
part shall rank above those included in the second part.
Provided that, if the order in which the names are
arranged in the Select List is changed following a
subsequent review of it, the seniority of the Government
servants involved shall be rearranged and determined
afresh in conformity with their revised ranks;
(c) the seniority of a transferred Government servant
vis-a-vis the Government servants in the posts, cadre or
service to which he is transferred shall be determined by
the competent authority with due regards to the class and
pay-scale of the post, cadre or service from which he is
transferred, the length of his service therein and the
circumstances leading to his transfer.
(3) Where the dates of appointing in posts, cadre or
service of any two or more persons determined after
assigning the deemed dates, if necessary, are identical
the person senior in age shall be considered as senior for
the purpose of determining the seniority.
5. Assignment of deemed dates of appointment:-
(1) Notwithstanding anything contained in Rule 4, on
recommendation of the Competent Authority, the
Government may, in accordance with the provisions
contained in the following sub-rules, assign to a
:: 16 ::
Government servant, a deemed date of appointment to a
post, cadre or service which is different from the date of
his actual appointment thereto; and on such a deemed
date having been assigned, the length of his service in
the said post, cadre or service shall be computed as
commencing from the deemed date assigned under this
rule and the seniority list prepared in pursuance of the
same, shall not ordinarily, be altered at the time of
preparation of seniority list on the subsequent occasions
or in the subsequent years, date.
(2) Where the direct recruits selected in the same
batch report for the dates and the actual dates on which
they are appointed are not chronologically in conformity
with their inter se seniority as provided in Clause (a) of
sub-rule (2) of Rule 4, the recruit higher in rank, out
reporting for duty later than his junior shall be assigned,
as deemed date of appointment, the date on which the
recruit lower in rank reports for duty, provided the
recruit higher in rank has reported for duty within the
period of thirty days from the date of his appointment or
within such further period as may be extended by the
competent authority.
(3) Where two or more Government servants who are
eligible for promotion to any higher post, cadre or
service according to any Select List are promoted to
such higher posts, cadre or service and the actual dates
on which such Government servants report for duty in
such higher posts, cadre or service are not
chronologically in conformity with their inter se
seniority as provided in Clause (b) of sub-rule (2) of
Rule (4), the senior person, who reports for duty later
than his junior, shall be assigned as deemed date of
appointment, the date on which the junior reports for
duty.
Provided that, in a case where a Government servant
himself is deemed responsible for delay in assuming
:: 17 ::
charge of the promotional post, his inter se seniority
shall be fixed with reference to the date he actually
assumes charge of such posts.
(4) Where the seniority of promotees is rearranged
and determined afresh as provided in the proviso to
Clause (b) of sub-rule (2) of Rule 4, deemed dates of
promotion shall be assigned to them or if already
assigned shall be revised in such manner as to be
chronologically in conformity with their ranks in the
order of seniority as so rearranged and determined.
(5) Where a Government servant whose name is
included in a Select List is not actually promoted
according to his rank in that Select List owing to a
disciplinary proceeding then pending against him, and is
promoted subsequently on the conclusion of such
disciplinary proceeding, on recommendation of the
Competent authority, the Government may, having due
regard to the circumstances of the case and the result of
the disciplinary proceedings, assign to him a deemed
date of appointment determined otherwise than in
accordance with his rank in the Select List.
(6) Where a Government servant is superseded while
preparing the Select List and if the supersession is
subsequently set aside following a review of his case
either by the competent authority acting on its own
motion or by a Court of Law or by any other authority
empowered in that behalf, such Government servant
shall on actual promotion, be assigned a deemed date of
appointment on which he would have been promoted
had he not been so superseded.
(7) A transferred Government servant may be
assigned such deemed date of appointment as on the
recommendation of the Competent Authority, the
Government may determine, with due regard to the class
:: 18 ::
and pay-scale of the post, cadre or service from which
he is transferred, the length of his tenure therein and the
circumstances leading to his transfer. Where the
appointment of the transferred Government servant is
made in consultation with the Commission, the deemed
date shall be determined with its consultation."
16. Meanwhile, the petitioners and others had made a
representation to the DGP. The DGP had allowed the same,
giving the petitioners and other representationists the deemed
date of appointment. Necessarily, those from 'C' category
aggrieved by the said decision, approached this Court and
were successful therein.
17. The MAT, while dismissing the application of the
petitioners, observed the application to have been made so
late and the DGP, by allowing the representation, unsettled the
settled position. When the petitioners were given appointment
on 1/6/2004, by no stretch of imagination, they could be given
the deemed date of appointment, dating back to March 2000.
More so, when the contesting respondents herein and the
candidates recommended and given appointment in 2001 were
likely to be affected. They were from 'C' category batch. The
record indicates that, the petitioners accepted the appointment
:: 19 ::
without any demur, way back in 2004. The DGP had allowed
the representation in 2015 under the so called misreading of
the interim order passed by the MAT in Original Application,
(No.37/2015). Admittedly, the State Government recalled the
order of the DGP. Even before that, the said order had been
upset by the MAT. The petitioners then could very well have
approached the Court to ventilate their grievance, if any,
regarding the claim deemed date of appointment. The
seniority list was prepared in terms of the appointment given to
the candidates from 'A' to 'C' category. Even promotions were
effected. The MAT was thus right in observing that the DGP
had in fact unsettled the settled position. Moreover, the
petitioners who had even not worked or not born in the cadre
before the date of their appointment, could not be given a
claim deemed date of appointment, dating four years back to
their actual date of appointment. The learned counsel for the
petitioners submitted that, the MAT did not consider the
judgment of the High Court nor it gave due interpretation to
Rule 4(2A) and Rule 5(2) of the Rules of 1982. As per the
Rules, it is only the State Government which can give deemed
date of appointment or promotion. The State Government has
:: 20 ::
admittedly withdrawn the decision of the DGP which had
already been upset by the MAT.
18. The observations referred to hereinabove are self-
speaking. The petitioners cannot derive any benefit therefrom.
It was the Writ Petition wherein a dispute inter-se the seniority
of the candidates appointed from Class 'C' category was the
subject matter. Whereas in the present petition, it is a question
of clash between 'B' and 'C' category candidates. If the
petitioners are granted relief, they would, even notionally, be
placed above the candidates appointed from 'C' category.
Thus, 'C' category would be affected thereby.
19. So far as regards claim of parity on the ground of
relief granted to Shri Bhadane is concerned, it appears, the
said ground was not at all or seriously raised before the MAT in
first instance. Shri Bhadane although was a selectee from the
examination held in 1998, he was given appointment in 2004,
as there was criminal case pending against him. Rightly or
wrongly, his application for giving him deemed date of
appointment dating back to the date of appointment of the
:: 21 ::
candidates from his batch was allowed. The said order was
not assailed by the Department, State or any affected
candidate. Shri Bhadane was granted the relief way back in
2011. The case of Shri Bhadane was altogether different than
the case of the petitioners. In our view, the petitioners cannot
seek parity with the case of Shri Bhadane. Needless to
mention, there can be no parity in case of illegality. Be that as
it may. The fact remains that, if the petitioners are granted the
deemed date of appointment, the candidates who were
appointed before the petitioners were actually appointed,
would necessarily get affected. If the deemed date of
appointment is given to the petitioners, there would be notional
pay fixation and consequential financial burden. Since the
petitioners were not the candidates selected in the first batch
of 179 candidates, for which in fact the recruitment process
was held and it is only thereafter the State Government made
a statement that few more vacancies would be filled up from
the very recruitment process, the petitioners were lucky to find
place in the subsequent select list. Needless to mention that,
before they were given actual appointment, one batch from
Class 'C' category was given appointment. If the petitioners
:: 22 ::
are granted relief as has been prayed, those 'C' category
candidates (contesting respondents herein) would necessarily
get affected. Much water has flown since the initial recruitment
process was held. Financial implications of giving notional
date of appointment has to be one of the factors to weigh
against grant of such relief.
20. For all the aforesaid reasons, we find the MAT to
have rightly turned down the Original application preferred by
the petitioners herein. No interference with the order
impugned herein is, therefore, warranted. The petition is,
therefore, dismissed.
21. Civil Application No.6819/2020 also stands
dismissed in view of the final order passed in this Writ Petition.
However as there was an ad-interim relief operating in the Civil
Application till date, the same shall continue for the next two
months.
(ABASAHEB D. SHINDE, J.) (R.G. AVACHAT, J.)
FMPathan/-
