Case: SUDHAKAR BABURAO NANGNURE Vs. NORESHWAR RAGHUNATHRAO SHENDE

A Balakrishnan (1977) 3 SCC 255 and Amarjeet Singh v Devi Ratan (2010) 1 SCC 417 . 79. The delay has, in our view, 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 Mahasangh, (2013) 5 Mh LJ 640 80. The first respondent has urged that his appointment as JDTP was not challenged by the appellant for the reason that any challenge would have attracted the bar of limitation. Whatever be the reason, the fact remains that 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. 81. Rule 3 of the Directorate of Town Planning and Valuation (Recruitment) Rules 2011 provides as follows: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. 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. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that post. 82. In R Prabha Devi v Union of India (1988) 2 SCC 233 , a two Judge Bench of this Court formulated the principle in the following terms:The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. … Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor can override it in the matter of promotion to the next higher post. 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 [See in this context Palure Bhaskar Rao v P Ramaseshaiah (2017) 5 SCC 783 ]. 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. 83. 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 this 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. 84. A submission was sought to be advanced on the basis of the principle that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority on the appointee over and above the regular/substantive appointees to the service (Sanjay K Sinha-II v State of Bihar) (2004) 10 SCC 734 at 742 . The same principle was emphasized in Bhupendra Nath Hazarika v State of Assam (2013) 2 SCC 516 :..when the infrastructure is founded on total illegal edifice, the endeavor to put forth a claim for counting the previous service to build a pyramid is bound to founder. [See also PV George v State of Kerala (2007) 3 SCC 557 and BA Linga Reddy v Karnataka State Transport Authority (2015) 4 SCC 515 (relied upon to buttress the submission that the power of the High Court to strike down cannot be exercised prospectively)]. 85. The answer to the submissions is simple: 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. What emerges from the order dated 12 December 2017 is that:(i) Liberty was granted to the appellant specifically to pursue the remedies available in law on the grievance that the issue of catch-up, though raised, had not been considered by the High Court; and(ii) This Court had not considered the matter on meritsThe reservation of liberty to the appellant to adopt a suitable remedy in law, to pursue the grievance that a submission which was urged before the High Court had not been considered would evidently be a reference to the remedy by way of a review18. It is well settled that if a submission which has been urged before the High Court has not been noticed or considered, it is to the High Court that the aggrieved litigant must turn for the rectification of the record. But, apart from this, the observation in the order dated 12 December 2017 that this Court had not considered the matter on merits is of crucial significance. The purpose of that clarification was to ensure that the issues which were raised (in any event with regard to the catch-up rule) were entirely open, to be urged before the High Court in the first instance and thereafter, if the appellant were to be aggrieved, in further proceedings before this Court. The above observation of this Court was not merely intended to keep the issue of the non-consideration of the catch-up rule open to be urged before the High Court. That this issue was kept open, is evident from the last part of the order dated 12 December 2017 which specifically keeps open the contentions of the parties to be urged before the High Court. In addition, the order of this Court carefully enunciates that we have not considered the matter on merits19. In view of this clear clarification, it is impossible to accept the preliminary objection that a recourse to this Court is barred after the High Court decided the review petitions. To take any other view would effectively deny access to justice to the appellant. Evidently, the grievance of the appellant was not considered by this Court on merits on 12 December 2017. To adopt a construction which would deprive the appellant of the remedy of moving this Court after the decision of the High Court in review would lead to an egregious failure of justice. Such a construction must be eschewed20. We would like to note an important aspect of the matter here which reflects on the bona fides of the appellant. The appellant moved a Miscellaneous Application on 22 November 2018 by way of abundant caution, for seeking a clarification of the order dated 12 December 2017. The appellant sought a clarification to the effect that upon the disposal of the review petitions by the High Court, it would be open to challenge the order in review as well as the original order before this Court21. One of the members of the earlier Bench, Honble Mr Justice Kurian Joseph, was due to demit office on 29 November 2018. The Miscellaneous Application was instituted on 22 November 2018. On 28 November 2018, a Bench consisting of Honble Mr Justice Kurian Joseph and one of us (Honble Mr Justice Hemant Gupta) issued notice on the Miscellaneous Application22. We accordingly clarify the earlier order dated 12 December 2017 by directing that it would be open to the appellant, if aggrieved by the order that may be passed by the High Court in review to challenge both the order in review and original orders in the writ petitions. However, this liberty is confined to the issue of the catch-up rule. In issuing this clarification, we have also been guided by an earlier precedent of a two judge Bench of this Court in the Maharashtra Chamber of Housing Industry v Municipal Corporation of Greater Mumbai .24. In the above case, it is evident that the petitioners had sought permission to withdraw the Special Leave Petition, after arguing the matter for some time, to seek a review of the order which was impugned. Granting permission, the Special Leave Petition was dismissed as withdrawn. It is clear therefore that there was nothing to indicate that the court had granted permission to move this Court afresh against the original order after the review was decided25. In Abhishek Malviya v Additional Welfare Commissioner(2008) 3 SCC 108  , a Special Leave Petition was filed before this Court against an order of the Additional Welfare Commissioner in a matter involving a claim for compensation arising out of the Bhopal Gas Leak Disaster. One of the grounds of challenge was that the Additional Welfare Commissioner had referred to the appellant as deceased. This Court dismissed the Special Leave Petition as withdrawn, recording the submission of the appellant that he wishes to move the Additional Welfare Commissioner for correction of the order. After the Additional Welfare Commissioner passed a fresh order, writ proceedings were initiated before the High Court. The High Court held that by the earlier order of this Court, liberty was reserved only to move the Additional Welfare Commissioner to correct a typographical error in appeal. This Court affirmed the order of the High Court, holding that its earlier order had merely reserved liberty to move the Additional Welfare Commissioner for correction of a typographical error27. In the present case, we find, for the reasons which we have indicated above, a clear distinction on facts. While disposing of the earlier Special Leave 23 (2016) 4 SCC 696 Petition to enable the appellant to pursue his remedies on the contention that the issue of catch-up though raised was not considered by the High Court, this Court expressly clarified that it had not considered the matter on merits. In the absence of such a clarification, the withdrawal of the Special Leave Petition would have led to the inference that the appellant had not been granted liberty to move this Court afresh. On the other hand, the clear purpose and intent of the observation that this Court had not considered the matter on merits was to keep open all the remedies of the appellant before the High Court in the first instance and thereafter before this Court on the issue of the catch-up rule28. By the clarification that we have issued on the Miscellaneous Applications, we have set the matter at rest. For the above reasons, we do not find any merit in the preliminary objection34. Clause (1) of Article 16 of the Constitution stipulates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The expression appointment was interpreted by a Bench of nine Judges of this Court in Indra Sawhney (supra) to exclude reservations in promotional posts. The expression appointment was construed to refer to initial appointments and hence not to promotional avenues. After this decision, the Parliament in its constituent capacity amended Article 16 by the Constitution (Seventy-seventh) Amendment Act 1995 with effect from 17 June 1995. Clause (4A) of Article 16 as introduced by the Seventy-Seventh Amendment read thus:16.(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the StateBy virtue of Clause (4A), an enabling provision was introduced as a result of which nothing contained in the Article would prevent the State from making reservations in promotion in the services under the State for Scheduled Castes and Tribes which, in its opinion, are not adequately represented in its service35. A line of cases before this Court considered the effect of an accelerated promotion granted to a member of a Scheduled Caste or Scheduled Tribe in terms of consequential seniority in a higher post. More specifically, the vexed issue was whether a member of such a caste and tribe who obtains promotion earlier than a senior belonging to the general or open category in the feeder cadre would retain that seniority on the latter being promoted to a higher post40. The constitutional validity of clauses (4A) and (4B) of Article 16 of the Constitution was dealt with in a decision of a Constitution Bench of this Court in Nagaraj (supra). Nagaraj (supra) laid down that the catch-up rule and the concept of the consequential seniority are essentially precepts of servicejurisprudence. They cannot, in the view of the Constitution Bench, be elevated to the status of a component of the basic structure. These precepts have been held to be practices as distinct from constitutional principles. The consequence is that they do not lie beyond the amending power of Parliament: neither the catch-up rule nor consequential seniority are elements of clauses (1) or (4) of Article 16. These have been held to be the principles evolved to control the extent of reservationThe Court held that since no exercise was carried out by the State of Rajasthan to acquire quantifiable data regarding the inadequacy of representation of Scheduled Castes and Tribes in public services in the state, the High Court was justified in quashing the notifications providing for consequential seniority and promotion46. Justice R Banumathi, speaking for the two Judge Bench held that Rule 12 did not provide for consequential seniority to candidates drawn from the reserved category who are granted accelerated promotion and, in the absence of a specific provision or policy, consequential seniority could not be granted:26. The true legislative intent under Article 16(4-A) of the Constitution is to enable the State to make provision or frame rules giving consequential seniority for the accelerated promotion gained based on the rule of reservation. Rule 12 evidently does not provide for the consequential seniority for reserved category promotees at any point of time. The consequential seniority for such reserved category promotees can be fixed only if there is express provision for such reserved category promotees in the State rules. In the absence of any specific provision or policy decision taken by the State Government for consequential seniority for reserved category accelerated promotees, there is no question of automatic application of Article 16(4-A) of the ConstitutionThe Court noted that the appellants who belonged to the general category were not questioning the accelerated promotion granted to their counterparts from the reserved category by following the rule of reservation but were only seeking the application of the catch-up rule in the fixation of seniority in the promotional cadre. The Court held that in the absence of any provision of consequential seniority in the rules, the catch-up rule will prevail:36. In the absence of any provision for consequential seniority in the rules, the catch-up rule will be applicable and the roster-point reserved category 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. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4-A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster- point promotees and the judgment of the Division Bench cannot be sustained53. The 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, this being common ground during the course of the hearing. 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]59. We have already noticed the decision in Indra Sawhney (supra) as having laid down that a provision for reservation can be incorporated in an executive order. We are not inclined to accede to the submission of the appellant that the GR dated 20 March 2003 will cease to remain in force after the enactment of the Reservation Act 2004. 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 undoubtedly 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.60. 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 effect62. This again, is an attempt to urge the Court to read the GR dated 20 March 2003 in a restrictive manner on the basis of the Reservation Act 2004. The GR dated 20 March 2003, while incorporating the principle of consequential seniority, reiterates 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. Accepting the submission of the appellant would lead to an anomalous situation where consequential seniority will be made applicable to posts below Class 1, and the catch-up rule will apply to Class 1 posts. An interpretation which results in this anomaly must be eschewed, particularly in the absence of a challenge to the GR dated 20 March 2003 and the Seniority Rules of 198264. 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. We have adverted to the reliefs claimed in an earlier part of this judgment and they are indicative only of a challenge to seniority. 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 instance65. 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 our constitutional history indicates, a clear purpose underlying the 85th Amendment to the Constitution. Such constitutional challenges cannot be bandied about without specific pleadings. We are clearly of the view that such an exercise would be impermissible in the absence of a frontal challenge70. All these decisions (except the decision in Panneer Selvam) involved a specific challenge to the validity of administrative notifications or, as the case may be, an Act of the legislature. Panneer Selvam (supra) was a case where in the absence of a provision for consequential seniority, it was held that the catch-up rule will prevail. 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 stage73. The submission of the appellant is based on the hypothesis that the promotion of the first respondent is ad-hoc and hence, he is not entitled to consequential seniority in terms of the GR dated 20 March 2003, which speaks of the regular date of promotion. In assessing this submission, it is necessary to note that the order of promotion dated 11 August 2011 indicates the reason as to why the promotion was treated as ad-hoc. The reason was the pendency of Writ Petition 8452 of 2004 before the Bombay High Court where there was a challenge to the Reservation Act 2004. Indeed, the order of promotion dated 2 July 2013 by which the appellant was promoted to the post of JDTP also states that the promotion is ad-hoc. Significantly, in the case of the appellant as well, the reason why the promotion is treated as ad-hoc is also the pendency of Writ Petition 8452 of 200474. A policy circular was issued by the State of Maharashtra on 1 April 2008 to all departments directing that promotions will be subject to the outcome of the decision in the above Writ Petition. Special Leave Petitions against the judgment of the Bombay High Court in the Writ Petitionare pending adjudication before this Court. The Tribunal, by its order dated 28 November 2014 struck down the Reservation Act, 2004 and the GR dated 25 May 2004. The judgment of the Tribunal was stayed by the Bombay High Court on 20 March 2015. On 4 August 2017, the High Court set aside the decision of the Tribunal to the extent that it and others struck down the Reservation Act 2004. The High Court kept the issue of constitutional validity open. The State of Maharashtra has filed a Special Leave Petition which is pending before this Court78. 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, as we have noted, 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. In declining to allow the issue of seniority to be challenged at this belated stage, the High Court relied upon the decisions of this Court in Roshan Lal v International Airport Authority of India (1980) Suppl.SCC 449 , P Chitharanja Menon v A Balakrishnan (1977) 3 SCC 255     and Amarjeet Singh v Devi Ratan (2010) 1 SCC 417  79. The delay has, in our view, 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 Mahasangh, (2013) 5 Mh LJ 64080. The first respondent has urged that his appointment as JDTP was not challenged by the appellant for the reason that any challenge would have attracted the bar of limitation.Whatever be the reason, the fact remains that 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 seniorityThe 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. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that postSeniority and eligibility are distinct concepts in service jurisprudence. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post [See in this context Palure Bhaskar Rao v P Ramaseshaiah (2017) 5 SCC 783   ]. 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 occurred83. 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 this 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 pleading84. A submission was sought to be advanced on the basis of the principle that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority on the appointee over and above the regular/substantive appointees to the service (Sanjay K Sinha-II v State of Bihar) (2004) 10 SCC 734     at 742 .85. The answer to the submissions is simple: 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 thevacancy occurred. He cannot, hence, challenge the appointment of the first respondent.