Sudhakar Baburao Nangnure vs Noreshwar Raghunathrao Shende & Ors.

2 nd July, 2013 – Appellant filed OA before the Maharashtra Administrative Tribunal – In the meanwhile, the first respondent was promoted as Director of Town Planning (DTP) on 30th April, 2016 – OA allowed – High Court set aside the said decision – Appellant filed Special Leave Petition – Withdrawn – Appellant filed review before the High Court – Dismissed – Appellant’s case that once he was promoted as JDTP, the ‘catch-up’ rule must govern and consequently, he must gain seniority over the first respondent and that the first respondent was not entitled to claim consequential seniority on the basis of his earlier promotion in the cadre of JDTP – Held: Preliminary objection to the present appeal that recourse to Supreme Court was barred after the High Court decided the review petitions, not accepted – Government Resolution dated 20th October, 1997 was issued stipulating that an officer belonging to Backward Class will retain seniority in the promotional cadre and that it was not necessary to revise the seniority – GR dated 20th March, 2003 was issued referring to the said GR clarifying that the seniority between backward class and non-backward class candidates in government service in the promotional cadre would be governed by the regular date of promotion – Incorporating the principle of consequential seniority, GR dated 20th March, 2003 adverted to r.4, 1982 Rules which stipulated that seniority in a post is determined by the length of continuous service – Further, GR dated 20th March 2003 has not been abrogated upon the enactment of the 2004 Act – Said GR was not challenged before the Tribunal – Such a challenge cannot be entertained at this stage – Further, eligibility has to be considered on the date of the occurrence of the vacancy – On 30 th April, 2016, the appellant did not fulfill the eligibility of three years’ experience as JDTP, required for the post of DTP – Seniority by itself cannot prevail where a senior lacks eligibility for promotion – Even if accepted, the applicability of the catch-up rule will also not obviate the requirement of the appellant fulfilling the condition of eligibility for promotion, on the date when the vacancy occurred – Appellant has also not challenged the appointment of the first respondent as JDTP – Judgment of the High Court does not call for interference – Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 – r.4 – Maharashtra State Public Services Reservation for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes Act, 2001 [Act VIII of 2004] – ss. 3-6, 11 - Directorate of Town Planning and Valuation (Recruitment) Rules, 2011 - r-3 - Consitution of India - Art. 16. Service Law – Promotion – Seniority and Eligibility – Held: Seniority and eligibility are distinct concepts in service jurisprudence – Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post.

The appellant, belonging to open category, joined the service as Planning Assistant in the Government of Maharashtra. The appellant and the first respondent, Scheduled Caste, were selected for the post of Town Planner on 1st July, 1992. Appellant was promoted as Deputy Director of Town Planning (DDTP) on 1st November, 2003 and the first respondent was promoted as DDTP on 3 Aug. 2006. In the promotional cadre of Joint Director of Town Planning (JDTP), the first respondent was promoted on 11th August 2011 while the appellant was promoted as JDTP on 2nd July, 2013. The appellant filed OA before the Maharashtra Administrative Tribunal. In the meanwhile, the first respondent was promoted as Director of Town Planning (DTP) on 30th April, 2016. OA was allowed. The High Court set aside the said decision. Appellant filed Special Leave Petition, which was withdrawn with the liberty to file review petition before the High Court. Appellant filed review petition before the High Court, which was dismissed. Hence, the present appeals.

Dismissing the appeals, the Court

HELD: Civil Appeal Nos 2468-2470 of 2019 @ Special Leave Petition (Civil) Nos. 8769-8771 of 2018:

1.1 On 20 October 1997, a Government Resolution was issued stipulating that an officer belonging to a Backward Class will retain seniority in the promotional cadre and that it is not necessary to revise the seniority. On 20 March 2003, another GR was issued inter alia with reference to the earlier GR noted above. The GR states that following the amendment to Article

16 by the insertion of Clause (4A), it has been decided that the instructions for regulating seniority of officers belonging to the Backward Classes and the general category in the promoted cadre would be governed by the earlier Government Resolutions dated

21 June 1982 and 20 October 1997. The GR clarified that the seniority between backward class and non-backward class candidates in government service in the promotional cadre would be governed by the regular date of promotion. [Paras 49, 50] [978-E; 979-A-B]

1.2 The GR dated 20 March 2003 was issued after the constitutional amendment to Article 16 (4A) by which consequential seniority was incorporated into that provision. Maharashtra State Public Services Reservation for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes Act, 2001 [Act VIII of 2004] (Reservation Act 2004) was enacted by the State legislature in 2001. The assent of the Governor was received on 20 January 2004 and it was published in the Official Gazette on 22 January 2004. The enactment has come into force after the 85th constitutional amendment. Prior to the enforcement of the Act, reservations were confined upto the entry level in Group I posts. As a result of the enactment of the law, reservations are applicable to all appointments in public services and posts [except categories covered by clauses (a) to

(d) of sub-section (1) of Section 3]. Section 3 deals with the applicability of the Act and Section 4 deals with reservation and percentages. [Paras 52-54] [980-A, F-G; 981-A]

1.3 Sub-section (1) of Section 5 stipulates that reservation in promotion shall be at all stages of promotions. Consequently, promotions within Class I posts are also governed by the rule of reservation. A provision for reservation can be incorporated in an executive order. The Reservation Act has not dealt with issue of consequential seniority. Sub-section (2) of Section 5 saves government orders providing for reservation of any posts to be filled in promotion which were in force on the date of the enactment of the Act. Similarly, the proviso to sub-section (1) of Section 6 saves government orders regarding the filling up of unfilled posts reserved for Backward Class candidates in force on the date of the commencement of the Act. The GR dated 20 March 2003 deals with the determination of seniority while sub-section (2) of Section 5 deals with orders providing for reservation. The GR dated 20 March 2003 is not a government order which falls within the purview of either sub-section (2) of Section 5 or the proviso to sub-section (1) of Section 6. However, the enactment of the Act by the state legislature cannot be construed as a legislative intent to override or abrogate the principle of consequential seniority incorporated in government resolutions. A provision for consequential seniority can certainly be incorporated in an executive order issued in pursuance of the provisions of Article

162 of the Constitution. The Government Resolution dated 20 March 2003 has not been abrogated upon the enactment of the Reservation Act 2004. The Reservation Act 2004 does not deal with the principle of consequential seniority. It would be impermissible to read the Act as having superseded the applicable government orders on consequential seniority, in the absence of clear words providing for such an effect. [Paras 56, 59 and 60] [982-H; 983-E-H; 984-A-C]

1.4 The GR dated 20 March 2003, while incorporating the principle of consequential seniority, reiterated the GR dated 20 October 1997. It also adverts to the Seniority Rules 1982 of which Rule 4 specifically stipulates that the length of continuous service will be determinative of seniority in respect of posts and cadres in the service. A challenge to the GR dated 20 March 2003 is conspicuous by its absence in the reliefs which were sought before the Maharashtra Administrative Tribunal. Entertaining a challenge to the validity of a Government Resolution incorporating the principle of consequential seniority without a specific challenge being addressed before the Tribunal would simply be impermissible. Entertaining such a challenge at this stage will have serious consequences in the entire State of Maharashtra by upsetting a significant number of promotions which may have already been granted to candidates belonging to the reserved category. The State government, in the pleadings before the Tribunal and the High Court was not called upon to justify the basis of its decision to adopt consequential seniority in the absence of a challenge being squarely set up in the forum of first instance. A challenge to the resolution providing for consequential seniority is indeed a serious matter. Such a challenge calls upon the court to upset a policy circular which has been issued with the avowed objective of safeguarding consequential seniority which was, as the constitutional history indicates, a clear purpose underlying the 85th Amendment to the Constitution. Such constitutional challenges cannot be bandied about without specific pleadings. Such an exercise would be impermissible in the absence of a frontal challenge. [Paras 62, 64 and 65] [984-E-F; 985-C-F]

1.5 In the present case, there is a specific provision for consequential seniority in the GR dated 20 March 2003. Absent a challenge to the GR in the proceedings which were initiated before the Tribunal, such a challenge cannot be entertained at this stage. [Paras 70] [987-B]

1.6 Eligibility has to be considered on the date of the occurrence of the vacancy. On 30 April 2016, the appellant did not fulfill the eligibility required for the post of DTP. In assailing the decision of the first respondent, the appellant has submitted that the promotion of the first respondent as JDTP on 11 August 2011 was under a circular dated 27 October 2008 which has been struck down by the Bombay High Court. The High Court in dealing with this submission has held that the order of promotion, when it was issued on 11 August 2011 had an imprint of legality. Moreover, even the appellant adopted the position that since promotion was given to the first respondent in terms of the Government Circular dated 27 October 2008, he believed that he had no reason to object to the seniority list of JDTP published on 28 August 2014. That apart, the High Court has noted that after the promotion of the first respondent on 11 August 2011, the appellant was promoted on 2 July 2013 and it was only when the second seniority list was finalized on 15 January 2016 that the appellant filed an OA in February 2016. In the meantime, the appellant had worked as JDTP for a period of nearly five years. The delay has, justifiably weighed with the High Court. Coupled with this is an equally relevant consideration which must weigh with the court: the appellant has not challenged the appointment of the first respondent as JDTP. Having failed to challenge the appointment, it is now not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court.[Paras 78, 79] [990-D-G; 991-A-B]

1.7 The appointment of the first respondent as JDTP has not been assailed in the OA filed before the Tribunal. Consequently, it is not open to the appellant to lay a challenge on the ground that the appointment was based on a circular which was held to be invalid after the appointment was made. The submission that the appointment is fortuitous within the meaning of Rule 3(f) is but another modality of seeking to deprive the first respondent of the consequence of his appointment and to his consequential seniority. The fact that the vacancy occurred on

30 April 2016, on the retirement of the then DTP has not been disputed in the course of the submissions of the appellant. On the date when the vacancy occurred, the appellant clearly did not fulfill the eligibility criterion of three years’ experience as JDTP. The appellant who was promoted on 2 July 2013 did not fulfill the criterion prescribed by Rule 3, Directorate of Town Planning and Valuation (Recruitment) Rules 2011. Seniority and eligibility are distinct concepts in service jurisprudence. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post. Even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred. [Paras 80-82] [991-C-D, F-G, 992-E-F]

1.8 The appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011. The appellant failed to challenge the circular dated 20 March 2003 providing for consequential seniority. The substratum of the challenge which has been developed before Supreme Court is without basis in the pleadings. The ingenuity and industry of the learned counsel who appeared on behalf of the appellant cannot, in the ultimate analysis, be a substitute for a deficient pleading. The appellant did not at any stage challenge the appointment of the respondent to the post of JDTP nor did he challenge the GR dated 20 March 2003 providing for consequential seniority. The appellant was not eligible for the post of DTP on 30 April 2016, when the vacancy occurred. He cannot, hence, challenge the appointment of the first respondent. The judgment of the High Court does not call for any interference. [Paras 83, 85 and 86] [992-F-G; 993-D-E]

Civil Appeal Nos 2471-2473 of 2019 @ Special Leave Petition (Civil) Nos. 14041- 14043 of 2018:

1.9 In view of the judgment in Civil Appeals @ Special Leave Petition (Civil) Nos. 8769-8771 of 2018, these appeals are also dismissed. [993-G]

MA Nos 2983-2985 of 2019 in Special Leave Petition (Civil) Nos. 33086-33088 of 2017

1.10 In view of the judgment in Civil Appeals @ Special Leave Petition (Civil) Nos. 8769-8771 of 2018, these MAs are disposed of, in terms of the judgment and order in the lead appeals. [994-B]

Suseel Finance & Leasing Co. v. M Lata (2004) 13 SCC 675; Abhishek Malviya v. Additional Welfare

Commissioner (2008) 3 SCC 108 ; Vinod Kapoor v State of Goa (2012) 12 SCC 378 : [2012] 8 SCR 1089; Sandhya Educational Society v. Union of India (2014) 7 SCC 701; Bussa Overseas and Properties Private Limited v. Union of India (2016) 4 SCC 696: [2016] 1 SCR 266 – distinguished.

Indra Sawhney v Union of India (1992) 3 Suppl. SCC

217 : [1992] 2 Suppl. SCR 454 – followed.

Maharashtra Chamber of Housing Industry v Municipal Corporation of Greater Mumbai Decision dated

16th August 2016 in SLP (C) No.024660 & 024661 of 2016; R Prabha Devi v Union of India (1988) 2 SCC 233:[1988] 3 SCR 147 – relied on.

M Nagaraj v Union of India (2006) 8 SCC 212; Magas Varga Karmachari Adhikari Suraksha Mahasangh v State of Maharshtra Decision of Bombay High Court in Writ Petition No. 3077 of 2011; Union of India v Virpal Singh Chauhan (1995) 6 SCC 684 : [1995] 4 Suppl. SCR 158; Ajit Singh Januja v State of Punjab (1996) 2 SCC 715 : [1996] 3 SCR 125 ; Jagdish Lal v State of Haryana (1997) 6 SCC 538 ; Ajit Singh (II) v. State of Punjab (1999) 7 SCC 209 : [1999] 2 Suppl. SCR 521; Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396; Suraj Bhan Meena v State of Rajasthan (2011) 1 SCC 467 : [2010] 14 SCR 532; Uttar Pradesh Power Corporation Limited v. Rajesh Kumar (2012) 7 SCC 1: [2012] 4 SCR 118; S Panneer Selvam v. State of Tamil Nadu (2015) 10 SCC 292; B K Pavitra v. Union of India (2017) 4 SCC 620 : [2017]

1 SCR 631; Gaurav Pradhan v State of Rajasthan (2018) 11 SCC 352 : [2017] 8 SCR 951; Roshan Lal v .International Airport Authority of India (1980) Suppl. SCC 449; P Chitharanja Menon v. A Balakrishnan (1977) 3 SCC 255 : [1977] 3 SCR 687; Amarjeet Singh v. Devi Ratan (2010) 1 SCC 417 : [2009] 15 SCR 1010; Palure Bhaskar Rao v. P Ramaseshaiah (2017) 5 SCC 783 : [2017] 3 SCR 226; Sanjay K Sinha-II v. State of Bihar (2004) 10 SCC 734 : [2004]

2 Suppl. SCR 834 ; Bhupendra Nath Hazarika v. State of Assam (2013) 2 SCC 516 : [2012] 12 SCR 587; PV George v. State of Kerala (2007) 3 SCC 557 : [2007] 1 SCR 1198 ; BA Linga Reddy v. Karnataka State

Transport Authority (2015) 4 SCC 515 – referred to.