Sudhakar Baburao Nangnure vs Noreshwar Raghunathrao Shende

Finding that there was no reason to review the earlier judgment, consistent with the settled parameters governing the exercise of that jurisdiction, the High Court dismissed the review petitions on 21 March 2018.

3 The original petitioner before the High Court is in appeal. 4 The appellant as well as the first respondent are officers in the service of the Government of Maharashtra. The appellant belongs to the open category while the first respondent belongs to a Scheduled Caste. The chart with relevant details regarding their appointments and promotions in the service of the state is provided thus:

Maharashtra on 6 May 1983. Both the appellant and the first respondent were selected for the post of Town Planner on 1 July 1992, in the course of a process initiated by the Maharashtra Public Service Commission 1. The appellant was promoted as Deputy Director of Town Planning 2 on 1 November 2003, by a nomination through the MPSC. The first respondent was promoted as DDTP on 3 August 2006.

6 In the promotional cadre of Joint Director of Town Planning 3, there were two posts, one for open category candidates and the second for reservation on roster points. On 7 January 2011, the post of JDTP was vacant for a Scheduled Tribe candidate under the roster. However, relying upon a circular dated 27 October 2008 of the General Administration Department 4, the name of the first respondent was recommended on 7 January 2011. Though the first respondent belongs to a Scheduled Caste, he was promoted on an ad-hoc basis to the post of JDTP on 11 August 2011. On 2 July 2013, by virtue of a Government 1 MPSC 2 DDTP 3 JDTP 4 GAD 3 Resolution5 dated 29 December 2012, the cadre strength of JDTP was enhanced to eight posts, of which five posts were meant for the open category while three posts were reserved. On 2 July 2013, the appellant was promoted to the post of JDTP.

7 Essentially, the case of the appellant is that in the seniority list of DDTPs, he ranked senior to the first respondent. The first respondent was promoted as JDTP on 11 August 2011 while the appellant was promoted later on 2 July 2013. The appellant claims that once he was promoted as JDTP, the ‘catch-up’ rule must govern and in consequence, he must gain seniority over the first respondent. In order to appreciate this aspect of the appellant’s grievance, material facts pertaining to the seniority list are provided thus:

(v) 8 March 2016 In response to a query under the Right to Information Act 2005, the appellant was informed that the promotion of the first respondent would be regularized with the concurrence of GAD and with the approval of the MPSC in future; and

(vi) 30 April 2016 The incumbent in the post of Director of Town Planning 6 was due to retire upon which the post would fall vacant.

(ii) The promotion of the first respondent as JDTP on 11 August 2011 was fortuitous and not a regular appointment. Hence, he is not entitled to claim the benefits of his promotion as JDTP and has been wrongly shown as senior to the appellant in the final seniority list of the cadre; and

11 Act VIII of 2004. “Reservation Act 2004” 7 11 By an interim order dated 1 April 2016, the Tribunal directed that the decision of the government would be subject to the outcome of the OA pending before it. Soon thereafter, on 2 April 2016, the GAD Establishment Board – I conducted a meeting where the first respondent was recommended for promotion to the post of DTP. In a writ petition challenging the interim order of the Tribunal, the High Court directed the Tribunal to decide the pending OA by 30 April 2016 (the post of DDTP was due to fall vacant on the retirement of the incumbent on 30 April 2016). On 18 April 2016, the Tribunal concluded the hearing and, while reserving the judgment, directed the case to be posted for pronouncement of judgment on 2 May 2016. Shortly before that date, the State government promoted the first respondent to the post of DTP on 30 April 2016. The Tribunal by its judgment dated 2 May 2016 allowed the OA. It quashed the seniority list dated 15 January 2016 of JDTPs and issued directions for the preparation of a fresh seniority list by deciding the date of regular promotion of the first respondent, whereupon a fresh promotion order was directed to be issued to the post of DTP.

14 During the pendency of these proceedings, the appellant has instituted Miscellaneous Applications15 along with an interlocutory application16. By the Miscellaneous Applications, the appellant has sought a clarification of the order dated 12 December 2017 so as to seek specific permission from this Court to move afresh if the review were to fail before the High Court. On 28 November 2018, notice was issued on the Miscellaneous Applications. 14 SLP (C) Nos. 8769-71 of 2018 was filed against the judgment in review; SLP (C) Nos. 14041-43 of 2018 were filed against the judgment in the writ petitions. 15 MA Nos. 2983-85 of 2018 16 IA No. 167323 of 2018 9 15 A preliminary objection has been taken to the maintainability of the Special Leave Petition by Mr R P Bhatt, learned Senior Counsel appearing on behalf of the first respondent. Mr Bhatt urged that as a result of the order of this Court dated 12 December 2017, all issues other than the application of the catch-up rule were given up when liberty was granted to the appellant to move the High Court by way of review. Once the review was rejected by the High Court, the following consequences must according to the submission ensue:

notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes shall not be 37 (2018) 11 SCC 352 35 filled in by the candidates not belonging to that, caste, tribe, category or class for which the posts are reserved.

86 For the above reasons, we have come to the conclusion that there is no substance in the appeals. The judgment of the High Court does not call for any interference, though for the reasons which we have indicated. The Civil Appeals shall stand dismissed. There shall be no order as to costs. CIVIL APPEAL Nos 2471-2473 OF 2019 @ SPECIAL LEAVE PETITION (CIVIL) Nos. 14041-14043 OF 2018 87 In view of the judgment in Civil Appeals @ Special Leave Petition(C) Nos 8769-8771 of 2018 rendered today, these appeals are also dismissed with no order as to costs.

MA Nos 2983-2985 OF 2019 @ SPECIAL LEAVE PETITION (CIVIL) Nos.33086-33088 OF 2017 88 In view of the judgment in Civil Appeals @ Special Leave Petition (C) Nos 8769-8771 of 2018 rendered today, these MAs are disposed of, in terms of the judgment and order in the lead appeals.