Bombay High Court

Shri Ankush Harischandra Bagate vs The State Of Maharashtra on 21 March, 2012

Bench:
B.R. Gavai
,
S.P. Deshmukh

1 JTWP-2466.05(2).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO. 2466 OF 2005

1. Shri Ankush Harischandra Bagate

age 50 years, occupation service,

r/of Gulmohar Cooperative Housing

Society, Flat No. A-4, Erandevna,

Pune-4.
2. Shri Sudhakar Ramchandra Shinde

age 51 years, occupation service,

r/of I-1-704, Moraj Residency,

Palm Beach Road, Sect. 16, Sanpada, Ori. Petnrs.

New Mumbai- 03. Petitioners.

versus

1. The State of Maharashtra,

through the Secretary,

General Administration Department,

Mantralaya, Mumbai.

2. The Secretary,

Rural Department and Water

Resources Department, Mantralaya,

Mumbai - 32.

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3. Sunil Madhukarrao Kendrekar,

age 36 years, occup. service,

residing at Z.P. Quarters,

Panchakki Road,

Ghati Medical College Hospital,

Aurangabad, Taluka and

33District Aurangabad.

4. Naresh Bhagwanrao Gite,

age 39 years, occup. service,
residing at C/of Applicant No.1.

5. Paras Amolakchand Bothara,

age 39 years, occup. service,

residing at c/o Applicant No.1.

6. Vivek Vishwambharrao Gujar,

age 40 years, occup. service, Respondents/

at:- c/of Respondent No. 1. ori. Respondents

----------

Shri A.V. Anturkar, Advocate with Shri P.R. Katneshwarkar, Advocate for the Petitioners.
Shri V.P. Patil, Special Counsel, with Shri V.D. Godbharle, A.G.P. for Respondents No. 1
and 2. Shri Ajay Deshpande, Advocate, for Respondents No. 3 and 6. Ms. Geeta
Deshpande, Advocate for Respondent No.5. Respondents No. 7 and 8 are deleted.

WITH

WRIT PETITION NO. 2055 OF 2003

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1. ABDUL RAUF SHAIKH,

age 50 years, occup. Govt. service, Petitioner/

A-15/1, Ravinagar, Govt. Colony, Orig. Resp.

Nagpur. No. 14.

versus

1. SUNIL MADHUKARRAO KENDREKAR

aged 38 years, occupation : Government

Service, Resident of Z.P. Quarters,

Panchaki Road, Opp. Ghati Medical

College Hospital, AURNAGBAD.

2. NARESH BHAGWANRAO GITE,

aged 41 years, occupation: Government

Service, Resident of C/o Panchayat

Samiti, GANGAPUR, Dist.Aurangabad.

3. VIVEK VISHWAMBHA GUJAR,

age 43 years, occup. Government

Service, resident of C/o Applicant No.1.

4. PARAS AMOLAKCHAND BOTHRA,

aged 41 years, occupation: Government

Service, resident of c/of applicant No.1.

5. AVINASH GANPATRAO GOTE,

aged 40 years, occupation as Assistant

Commissioner, in the Office of the

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Divisional Commissioner (Revenue)

Nashik Division, NASHIK.

6. ANKUSH SHESHRAO CHAVAN,

aged 43 years, occupation Service as Respondents/ Nos.1-4 orig.

Deputy Chief Executive Officer, applicants in O.A. Nos.
254 and 256 of 2002

Zilla Parishad, NASHIK.

7. DILIP SADASHIVRAO PATIL,

aged 41 years, occup. Service Nos. 5-7 orig.

Principal Gramsewak Training

Institute, KOLHAPUR.
ig applicants in

O.A. 254/2002

-------

Shri D.K. Kulkarni, Advocate for Petitioiner (absent). Shri Ajay Deshpande, Advocate, for
Respondent No1. Petition is dismissed as against Respondents No. 3, 4 and 6 dismissed.
Respondents No. 2, 5 and 7 served.

WITH

WRIT PETITION NO. 2980 OF 2005

Sahebrao S/o Gynaoji Waghmare,

Age : 55 Years, Occup.: Service,

at present as a Additional Chief

Executive Officer, Zilla Parishad, Jalna.

Petitioner

versus

1. The State of Maharashtra,

2. The Secretary,

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R.D.D. & Water Conservation

Department, Mantralaya,

Mumbai. - 32.

3. Sunil Madhukarrao Kendrekar,

Age : 36 years, Occup.Service,

Commissioner Office, Aurangabad.

4. Naresh Bhagwanrao Gite,

Age : 39 Years, Occup. Service,

Commissioner Office, Aurangabad.

5. Paras Amolakchand Bothra,

Age : 39 years, Occup.: Service,

R/o C/o Respondent No.4.

6. Vivek V. Gujar,

Age : 40 Years, Occup. Service,

As a Additional Chief Executive

Officer, Zilla Parishad, Aurangabad. Respondents

----

Shri D.R. Irale Patil, Adv. for Petitioners. Shri V.P. Patil, Special Counsel, with
Shri V.D. Godbharle, A.G.P. for Respondents No. 1 and 2. Shri S. M. Kendrekar-
Resp. No.3-in person. (absent) Shri S.R. Barlinge, Advocate, for Respondent
No.5. Shri Ajay Deshpande, Advocate for Respondents No. 6.

WITH

WRIT PETITION NO. 3469 OF 2003

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1. Shri Ankush Harsichandra Bagate,

18 Queens Garden,

Pune 411 001.

2. Shri S.B. Bejalwar,

3. Shri G.P. Gedam,

4. Shri.S.R.Shinde,

5. Shri. N.M.Raskar,

6. Shri. N.B.Dhumal,

7. Shri. D.G.Jagtap,
8. Shri. A.D.Sonar,

9. Shri.S.D.Bansode,

10. Shri N.D.Pathan,

No 2 to 10 : All Adult,

Through the power of Attorney

Holder Petitioner No.1

Shri Ankush Bagate,

18 Queens Garden,

Pune 411 001. Petitioners

versus

1. The State of Maharashtra,

2. The Secretary,

Rural Development and the

Water Resources Department,

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Mantralaya,Mumbai. - 32.

3. The Secretary

General Administration Department,

Mantralay, Mumbai-32.

4. Sunil Madhukarrao Kendrekar,

Adult, Occup. Service,

Residing at : Z.P. Quarter,

Panchakki Road, Opp. Ghati

Medical College Hospital,
Aurangabad.

5. Narendra Bhagwan Gite,

Age : 38 Years, Occup. Service,

Residing at: C/o Panchayat Samiti,

Gangapur, District Aurangabad.

6. Vivek Vishwanathrao Gujar,

Age : About 40 Years, Occup. Service,

Residing at: C.o Panchayat Samiti,

Gantapur, District Aurangabad.

7. Paras Amolakchand Bothra,

Age : 38 years, Occup.: Service,

Residing at : Sunil Madhukarrao Kendrekar,

Z.P. Quarters, Panchakki Road, Opp. Ghati

Medical College Hospital, Aurangabad.

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8. Avinash Gapatrao Gote,

Age : 37 Years, Occup. Service,

Asstt. Commissioner, In the Office of

Divisional Commissioner(Revenue)

Nasik Division, Nasik.

9. Ankush Sheshrao Chavan,

Age : 40 Years, Occup.: Service,

Personal Assistant to
M.K.Anna Patil,

State Minister for Rural Development

Krishi Bhavan, New Delhi.

10. Dilip S/o Sadashivrao Patil,

Age : 41 years Occup. Service,

Project Director,

Rural Development Agency,

Sindhudurg, Dist.

11. P.S.Pawar,

Age : Major Occup.: Pensioner,

R/o at ost Mane Rajuri,

Tq. Tasgaon, Dist. Sangli.

12. B.S.Katile,

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Age: Major Occup.: Pensioner,

R/o Shindenagar, Yeotmal,

Tq. Yeotmal, Dist. Yeotmal.

13. V.M.Gaikwad,

Age : Major Occup.: Nil. r/of

Durgawadi, behind House of Lalji,

Tq. Vaijapur, District Aurangabad.

14. A.G. Waje,

Age : Major Occup.: Service,

Dy. Commissioner (Est)

Divisional Commissioner Office,

Amravati, Tq. & Dist. Amravati.

15. D.V.Rao,

Age : Major Occup.: Pensioner,

R/o survey No. 629/2/2

Silver Estate -A 2/5,

Bibwewadi, Pune.

16. S.D.Pawar,

Age : Major Occup. Pensioner,

R/o Trimurtibhavan,

Behind Brahmagiri,

New Water Tank Jail Road,

Nasik Road, Nasik.

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17. N.G.Naikwade,

Age : Major, Occup.: Pensioner,

R/o Ashok Villa, B.V. Block NO. 20

Shreenagar, Waggale Estate,Thane.

18. S.G.Waghamre,

Age : Major Occup. Additional

Chief Ex. Officer Z.P.Akola,

Tq. and Dist. Akola.

19. A.R.Shaikh,
Age Major Occup.: Service

Asstt. Commissioner, in the

Office Divisional Commissioner(Revenue)

Nanded, Nanded.

20. S.M.Kinake,

Age: Major Occup. Pensioner,

R/o Vikas Colony Sharadha Nagar,

Yeotmal, Tq. and Dist. Yeotamal.

21. D.G.Totadad,

Age: Major, Occup.

R/o Anjkali Niwas,

House No. 26,

Bhagyanagar, Nanded,

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Tq. and District Nanded.

22. S.S.Khade,

Age : Major Occup. Service,

Project Director,

Dist. Rural Development Agency,

Amrawati, Tq. and District. Amrawati.

23. A.G.Shukla,

Age: Major Occup. Service,

Addl. Chief Executive Officer,

Z.P.Wardha, Tq. and Dist. Wardha. . Respondents

----------

Shri A.V. Anturkar, Advocate with Shri P.R. Katneshwarkar, Advocate for the Petitioners.
Shri V.P. Patil, Special Counsel, with Shri V.D. Godbharle, A.G.P. for Respondents No. 1
to 3. Shri Ajay Deshpande, Advocate, for Respondents No. 5 and 6. Ms. Geeta
Deshpande, Advocate for Respondent No.7. Shri N.R. Katneshwarkar, Advocate, for

Respondents No. 11,12,14,15,17,18 and 20 to 23. Shri S.M. Kendrekar-Respondent-
party-in-person (absent).

WITH

WRIT PETITION NO. 4023 OF 2007

WITH

CIVIL APPLICATION NO. 242 OF 2009

1. Shri Ankush Harsichandra Bagate,

Age : 52 Years, Occup.: Service,

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Residing at : Gulmohar Co.-Op

Housing Society, Erandwane,

Survey No. 101, C.S.No. 127

Flat No. A-401 Pune - 411 004.

2. Sudhakar Ramchandra Shinde,

Age : 51 Years. Occup.: Service,

Residing at : 1-1-704,

Moraj Residency, Palm Beach Road,

Sanpada, New Mumbai 400 003. Petitioners

versus

1. The State of Maharashtra,

2. The Secretary,

Rural Development and Panchyat Raj,

Rural Development and Water Sources

Department, Mantralaya, Mumbai. - 32.

3. Sunikar Madhukarrao Kendrekar,

Age : 37 Years, Occup. Service,

Working as Regional Facilitator,

at Aurangabad, For correspondence,

Divisional Commissioner Office,

Aurangabad, Tq. and Dist. Aurangabad.

4. Naresh Bhagwanrao Gite,

Age : 39 Years, Occup. Service,

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Divisional Commissioner Office,

For correspondence-

Office of Rajmata Jijan Mission,

Behind State Bank of Maharashtra,

CIDCO, Aurangabad,

Tq. & District Aurangabad.

5. Paras Amolikchand Bothara,

Age : 39 years, Occup.: Service,

As a Deputy Commissioner (Est.)

Divisional Commissioner Office,

Aurangabad,

for Correspondence:

Commissioner's Office, Aurangabad,

Tal.& District Aurangabad.

6. Vivek V. Gujara,

Age : 40 Years, Occup. Service,

Additional Chief Executive Officer,

Zilla Parishad, Aurangabad,

Tal.& District Aurangabad. Respondents

----------

Shri A.V. Anturkar, Advocate with Shri P.R. Katneshwarkar, Advocate for the Petitioners.
Shri V.P. Patil, Special Counsel, with Shri V.D. Godbharle, A.G.P. for Respondents No. 1

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and 2. Shri S.M.Kendrekar-Resp. No.3-party in person (absent) Shri Ajay Deshpande
Adv. for Respondent No. 4. Resps. No. 5 and 6 are served.

----------

Coram : B. R. Gavai and

Sunil P. Deshmukh, JJ.

Date : 21st March, 2012

JUDGMENT (Per: Deshmukh, J.) .

1. This bunch of writ petitions arises out of judgment and order dated 22.11.2002

passed by the learned Maharashtra Administrative Tribunal [hereinafter referred to as

"the Tribunal"] in Original Applications No. 254 and 256 of 2000, and subsequent orders

passed in Contempt Petition No 89 of 2003 and other proceedings. [Petitioners herein

are referred to as 'Petitioners' and original applicants before MAT as 'The applicants" and

the Governments Authorities either as 'Authorities' or 'Respondents no. 1 to 3' for

convenience]

2. Original Application No. 254 of 2000 had been filed on 07-04-2000 by four

applicants, who are direct recruits to the Maharashtra Development Service ("MDS")

Class I cadre, against Respondents No. 1 to 3 - the government authorities and

Respondents No. 4 to 24 in said original application, who are the promotees to MDS

Class-I cadre, praying for placement of the applicants in seniority list of said cadre above

said Respondents No. 2 to 24 and for consequential benefits.

3. On 10-04-2000, applicants in Original Application No. 254 of 2000 had filed

Original Application No.256 of 2000 arraigning only aforesaid Respondents No. 1 to 3-

the govt. authorities, seeking directions to work out and declare number of posts

earmarked for direct recruits from 01-04-1982 and also to workout number of promotee

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candidates considering their promotions in excess of the recruitment/quota rules to be

fortuitous in MDS Class-I cadre and to fill up the created posts of Additional Chief

Executive Officers in Zilla Parishad in accordance with quota rule.

4. According to the applicants, MDS cadre has been an altogether new cadre formed in

1973, consisting of Class-I and Class-II posts pursuant to Maharashtra Development

[Constitution, Classification and Recruitment] Rules, 1973 [hereinafter referred to as

'MDS Rules, 1973'] and the posts in said cadre were meant to be filled in by promotion as

well as by nomination with prescription that appointments of direct recruits [nomination]

shall be in the range of 35 to 50 per cent and the rest by promotion [departmental

candidates]. The MDS Rules, 1973, have been framed in exercise of powers conferred

upon the State of Maharashtra under proviso to
Article 309
of the Constitution of India.

According to them, in order to achieve proportion of 35 per cent of direct recruits till

1.4.1982 and 50 percent thereafter, and to maintain the proportion under the rules, the

State Government ought to take proper steps and timely action.

5. The applicants have submitted that sub-rule (1) of Rule 5 of the MDS Rules,

1973, requires that appointment by nomination shall be through the Commission in

accordance with the rules relating to recruitment to the posts of Deputy Collectors and

that proviso thereunder requires the same to be effective from 1.4.1979 or thereafter in

such a phased manner as would ensure that the total number of officers directly recruited

in MDS Class-I cadre shall not at any time after 1.4.1982, be less than 35 per cent and

more than 50 per cent of the total number of permanent posts in that cadre.

6. The applicants have alleged that respondent authorities did not take action on

their representation in accordance with rules. According to them, direct recruitment

was sought only in 1987 though it was expected immediately on enforcement of the

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rules and alleged that initiation had been only in 1985. Government had been loath to

take action which has given rise to promotion of in-service candidates from Class-II

cadre. According to the applicants, all promotions of in-service candidates which are in

excess of rules are to be regarded as fortuitous. The applicants purport to go back to

August, 1973 and seek review of the situation and removal of disparity created due to

alleged non observance of quota rule. According to them, there had been no situational

constraints justifying listless approach of concerned authorities. Applicants cannot be

made to suffer on account of negligence and absence of timely action by the authorities.

According to the applicants, no explanation in this respect should be heard from the

authorities and the authorities are required to be directed to work out the number posts

which were and have been earmarked for direct recruitment and to work out their

backlog and take suitable steps to remove disparity and to give deemed date to the direct

recruits which they would have got in regular course. The applicants contend that

seniority of the promotee candidates from MDS Class-II cadre cannot be reckoned from

the date of their actual promotion to MDS Class-I cadre having regard to proportion of

respective categories in MDS Class-I cadre to be maintained according to the rules,

contending that promotions are not according to the rules. The applicants had

requested Respondent No. 1 to look into the matter and make suitable alterations to the

seniority list by properly following quota rule, to remove injustice caused to them. The

applicants purport to place reliance on a few judicial pronouncements. The applicants

contend that if suitable changes are not made to the seniority list, MDS Rules, 1973,

would lose their sanctity. Apprehending a situation that the rules may not be followed in

view of a news published about the Minister having declared that the creation of

Additional Chief Executive Officers' posts in Zilla Parishad in the State is for providing a

promotional avenue and thus justifying original applications praying for reliefs referred

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to hereinabove.

7. The applicants have claimed that they are graduates and post graduates in various

disciplines and are working in MDS Class-l cadre posts, and that MDS Class-I cadre

comprises Deputy Chief Executive Officers of Zilla Parishad and its equivalent posts viz.

Block Development Officers Class-I, Project Officers Class-I of various units under the

Zilla Parishad.

8. Maharashtra Public Service Commission [hereinafter referred to as "MPSC" or

"Commission" ] examination of the applicants had been held in March, 1988 and the final

outcome had been declared on 11.7.1988. According to applicants such declaration is a

recommendation to appoint them in MDS cadre of the Deputy Chief Executive Officer

Class-I and Block Development Officer Class-I. The applicants refer to a circular dated

3.12.1971 issued by the General Administration Department of Maharashtra Government

instructing appointments of the candidates selected and recommended by MPSC or by

Regional Selection Board within a period of one month by completing requisite

formalities and further refer to circular dated 4.4.1991 instructing expeditious

appointments of MPSC recommended candidates and to speed up the process, wherever,

delays in such appointments have been brought to notice by the Members of Legislative

Assembly/Council.

9. The applicants make a grievance that though MPSC had recommended their

candidature to the government for appointment on 11.7.1988 and though they were

directed to undergo medical examination under communication dated 8.9.1988, yet the

orders were issued to them only on 1.7.1989 i.e. almost after about twelve months.

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10. The applicants' grievance is also that on 29.6.1989 i.e. just two days before their

orders of appointment dated 1.7.1989, orders of promotion of in-service candidates from

MDS Class-II cadre had been issued by which en-bloc ten persons were promoted. It has

been alleged that intervening 23 promotions from the date of recommendation of the

applicants to the date of their actual appointments had been calculated at giving

precedence to the promotee candidates over the direct recruits. The promotee candidates

who retired before the applications were filed, have been excluded from being arrayed as

respondents. The applicants purport to allege that long distance in the appointments

had been influenced by the promotee candidates. The applicants contend that not only

the ten candidates referred to above, but respondents No. 4 to 26 have been promoted

keeping the issue of appointment of the applicants in abeyance.

11. The applicants allege that even the constitution of the Departmental Promotion

Committee [hereinafter referred to as the "DPC"] had been subsequent to the date on

which applicants' names were recommended by MPSC and thus claim that the

departmental candidates' selection is subsequent in point of time. The applicants have

also contended that since the government had requisitioned direct recruits to the MPSC

in 1987 pursuant to which their selection had been made, it has to be presumed that

there were vacancies of direct recruits in MDS Class-I cadre. The applicants purported to

urge the Tribunal to consider the aspect as to why the State Government had remained

inactive and as to how it has issued orders of appointment of the applicants immediately

after the date of promotion of the in-service candidates. Sum and substance is to allege

that the deferred issuance of appointment orders to them has been malafide, with a view

to favour the promotee candidates. The applicants contend that regularization of

promotion of the departmental candidates had not taken place. Placing the departmental

promotee candidates over the direct recruits in the seniority list dated 7.6.1996 is grossly

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improper and that though they sought redressal of their grievance regarding said

seniority list under a representation dated 15.1.1999, yet there has been no response.

12. The respondents-applicants claimed that there was no avenue available to those

working in MDS Class I cadre till 1999. It is only in 1999 the government has given

them opportunity of getting Selection Grade in MDS cadre and also promotional avenue

in the form of Additional Chief Executive Officer and thus they have contended that

creation of the cadre of Additional Chief Executive Officer shall have to be deemed to be

a reckoning point for the applicants to ventilate their grievance about seniority as taking

up such issue to judicial forum at other point of time would have generally been an

academic exercise. The applicants this way justify their approach to the Tribunal

questioning the seniority list dated 7.6.1996 and claimed that soon after declaration of

policy of the State to provide opportunity of advancement to the candidates in MDS

Class-I, they have agitated for correction in the seniority list and have requested the

Tribunal to appreciate and consider their case favourably. The applicants allege that the

promotee candidates were in excess of their quota.

13. Respondent No. 1 in its affidavit in reply dated 12.1.2001 has denied allegations

of the applicants and has asserted that quota of direct recruits and promotees was and

has been maintained according to the MDS rules. The objections against interim

seniority list received, were considered properly and thereafter seniority list was

finalized. It has been submitted that interim seniority list had been prepared on

2.8.1995 and after inviting and considering objections to the same, on 7.6.1996,

seniority list has been finalized. It has been submitted that MDS Rules, 1973 have been

made effective from July, 1981 and the MPSC had been requisitioned in 1984.

Examination was held in 1985 and 14 and 16 candidates were appointed in 1986 and

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1987 respectively through the Commission and as such, the respondent-authorities had

fulfilled the quota of direct recruits. It has been specifically denied that the departmental

candidates had been promoted against the nomination quota. The Rural Development

Department had prepared seniority list according to the relevant rules and ratio of direct

recruits and promotees had been maintained in accordance with the rules. It has been

denied that the seniority list of the candidates of MDS Group-A requires any alteration.

In support of said contention, reliance has been placed by Respondent No. 1 on various

documents annexed to the reply, including MDS Rules, 1973 and amendments thereto

from time to time.

14.

The applicants had filed rejoinder on 13.2.2001 to the affidavit in reply

submitted by Respondent No.1 and expressed their inability to give definitive figures of

various posts in MDS Class-I cadre and tried to reason that out on various counts. It has

been contended that since Class-I posts were en-bloc converted into Class-II and some of

the Class-II posts had been up-graded as Class-I posts, referring to that about 200 posts

of Child Development Programme Officer (CDPO) which were earlier Class I had been

converted into Class II. According to them, certain number of posts had been increased

and altogether new posts were created like Assistant Commissioner, Additional Chief

Officer of Zilla Parishad and also submitted that in the absence of exact figures, effective

adjudication of the issue would be difficult. It is further submitted that strength of the

MDS Class-I cadre is about 397 or thereabout throughout the State. Till rejoinder, the

posts of Assistant Commissioner from said cadre had been increased from 6 to 18 and

the posts of Block Development Officer Class-I which were 32 had been increased to 202

and about 150 posts of CDPOs had been abolished by shifting them as Block

Development Officer Class-II with conversion of CDPOs to MDS Class II from Class I

cadre. According to the applicants, there were only 93 direct recruits among 397 posts

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which is far too below the requirement of 50 per cent under the quota rule since

1.4.1982 and claimed a backlog of 105 posts of direct recruits. The applicants purport

to dispute the date of application of rules as of 1979. The applicants have also contended

that the objection to seniority list is a different issue altogether and does not have nexus

to the controversy involved in Original Application No. 256 of 2000 and thus questioned

importance being given to the issue of not availing an opportunity to object to the

seniority list. The applicants further went on to submit that though the issues are inter-

mixed, those are, in fact, independent of each other. It has been submitted that

maintenance of quota can be considered independently from seniority. It has been

contended that promotions in favour of the concerned respondents-departmental

candidates had been temporary and by way of stop gap arrangement and relying upon

judicial pronouncements of the Apex Court and the Tribunal further contended that

promotions of the departmental candidates are fortuitous and apprehended that their

long tenure would be legitimized. The applicants purport to claim that in their objections

to the seniority list they had relied on Sanjay Thakre's case decided by the Tribunal and

referred to that challenge to said decision of the Tribunal before the Apex Court had

been unsuccessful.

15. An additional affidavit has been filed by Respondents No. 1 to 3 on 7.3.2001 to

the rejoinder of the applicants, objecting to Original Application No. 256 of 2000 on

various grounds, inter alia, that the same is barred by limitation, is misconceived, is not

tenable, is on fancied cause of action, is stale, fixation of seniority and change in postings

cannot be allowed after more than 12 years, etc. It has been contended that the original

application has been filed far beyond expiry of period of one year from accrual of cause of

action as per
Section 21
of the Administrative Tribunals Act, 1985 and that too has been

filed without any application for condonation of delay. It has further been submitted

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that there is no compliance of requirement under
section 20
of said Act, namely, making

an appeal and in the absence of provision of appeal, a representation. According to the

respondents, even though promotions have been given in 1989, no appeals had been

filed then and even if it is considered that the applicants were aggrieved by fixation of

seniority as on 7.6.1996, neither representation nor appeal has been filed within the

stipulated period under said Act and the representation dated 15.1.1999 cannot be

entertained as the same is not permissible. It has been submitted that applicants who

have failed to avail of opportunity to object to seniority list at appropriate occasion, are

now precluded from questioning the same. It has been submitted that permanent cadre

is comprised of 54 permanent posts and considering the fact that with the second batch

of direct recruits being introduced their total number in the cadre is 31 which is more

than 50 per cent of the strength of the permanent cadre and hence, the government

ought not to have called for third batch of the applicants from MPSC. According to the

respondents, even calling of new candidates in 1987 had been contrary to the

recruitment rules. Said respondents have given a table in their additional affidavit,

wherein they have referred to that permanent posts during 1981 to 1985 which were 54,

and temporarily sanctioned were 41 and in 1987 out of 54 permanent posts, 31 had been

occupied by direct recruits and in 1989 with appointments of applicants' batch the same

had been increased to 71. According to the table, during the period 1980 to 1990, there

had been increase in permanent posts from 54 to 95 and temporary posts from 41 to 155.

The respondents contended that the applicants and others had been appointed by

usurping the posts of promotees. According to them, quota is to be counted with

reference to permanent posts and as such, no injustice has been caused to the applicants.

16. A further rejoinder came to be filed on behalf of the applicants through one Dr

N.B. Gite, on 4.4.2002. In the further rejoinder, the figures of permanent posts referred

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to by Respondents No. 1 to 3 in their additional affidavit have been sought to be disputed

by the applicants . According to the applicants, even going by the calculations made by

the respondents, there had been in all 285 incumbents working in MDS Class-I cadre out

of which 56 were appointed by direct recruitment and the rest by promotion of

departmental candidates. Deponent, however, has also stated that the promotee

candidates are not only continued to be in the seniority list, but have also been bestowed

upon further benefits by treating them to be integral part of MDS Class-I cadre.

According to him, had some candidates been on deputation, then their names could not

be included in the seniority list of MDS Class-I. The respondents as such would not be

able to claim that some of the persons had been working on deputation. It has been

alleged that such claims have been put-forth only with a view to deprive the direct

recruits of their progress in service career and proper placement in the seniority list and

giving correct proportion of quota rule. He purports to rely on a chart annexed to the

further rejoinder and alleges that it falsifies the claim of respondent-authorities and that

the authorities have avoided to furnish the correct and exact factual information to the

applicants and requests for proper directions to the respondents to place on record

factual data of MDS Class-I cadre. According to the chart annexed to the further

rejoinder, there were in all 507 promotions as against which there had been only 87

direct recruitments upto 1999.

17. The applicants also filed additional affidavit in July, 2002, contending that

requisitions to MPSC by respondents pre-suppose assessment of posts after proper

calculation of requirement of direct recruits as well as promotees and as such, the reply

filed by Respondents No.1 to 3 is unsustainable. It is submitted that there had been no

reference to excess appointments of direct recruits in the first affidavit, as, according to

the applicants, there had been no scope for such excess appointments and claimed that it

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is not such a trivial thing as has been considered by the respondents. The additional

affidavit gives stress on creation of 31 posts of Block Development Officers Class-I

pursuant to provisions of the Maharashtra Zilla Parishad and Panchayat Samities Act,

1961 and as such claims that such posts cannot be termed as temporary posts and have

been wrongly so claimed by the respondents. According to the applicants, under MDS

Rules, 1973, in all 75 posts were created, comprising 25 each, of Deputy Chief Executive

Officer (General) and (Village Panchayat) and Planning Officers since there were only 25

districts in the State. However, now the situation has undergone a change and there are

about 35 districts in the State, requiring one Deputy Chief Executive Officer each for

General, Village Panchayat and Planning, therefore, at least 62 posts of the Deputy Chief

Executive Officer are in existence, in addition to 10 posts of CDPO under Integrated Child

Development Scheme most of which have been of permanent nature since 1981. The

applicants claim that the stand taken by the respondents is inconceivable. The nature of

work performed by the incumbents holding a post in cadre is permanent. According to

them, in addition, four more posts of Assistant Commissioner were created during the

period from 1977 to 1980 and there were about 152 posts of MDS Class I cadre of

permanent nature. The applicants claim that there were about 235 posts in MDS Class I

cadre for more than three years which ought to have been treated as permanent posts

and have sought clarification from Respondents No. 1 to 3 on the same.

18. The applicants rely on the Maharashtra Civil Services (Regulation of Seniority)

Rules 1982 regarding general principles of seniority and fortuitous appointments referred

to thereunder and submit that ad-hoc/stop gap arrangement would not be required to be

reckoned for the purpose of seniority unless the appointment is according to the rules

and as such, quota under the rules has to be taken into consideration. The applicants

further rely on definitions of `temporary post' and `permanent post' which respectively

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mean a post carrying a definite rate of pay sanctioned for a limited time and a post

carrying a definite rate of pay sanctioned without time limit. According to the

applicants, it is not open to the respondent-authorities to contend that there existed only

95 posts in MDS Class I cadre in 1987 and that from the same, only 54 were permanent

and the rest were temporary. The applicants by referring to various government

resolutions and circulars from 1967 onwards, issued from time to time, claimed that it

has been the consistent policy of the government to convert temporary posts into

permanent ones. It has been alleged that the government is not coming forth with

sincere and bonafide stand with regard to exact number of posts in MDS Class I cadre.

According to them, though the post of Integrated Child Development Officer Class-I

forms integral part of MDS Class I cadre, the government is refusing to accept the same.

The applicants tried to support their said claim by making reference to a 1997

notification issued by MPSC which, inter alia, refers to the ICDO Class-I cadre and such

clubbing, according to the applicants, is sufficient indication of ICDO Class I forming

integral part of MDS Class-I cadre.

19. The applicants have also claimed that there is a policy of the government since

March 1970 that fifty per cent of the total posts in the cadre should be filled in by direct

recruitment which is exemplary part of the government resolution dated 7.3.1996.

According to the applicants, when the rules have occupied the field, the same will have to

scrupulously followed. However, it is contended by the applicants that the provision for

quota for direct recruits under the rules is being given a go-bye and that ad-hoc/stop gap

promotions are not required to be considered for the purpose of counting seniority.

According to the applicants, though as per the Government Resolution dated 29.8.1979,

the posts of CDPO are temporary addition to MDS Class-I cadre, by passage of time and

by virtue of various government resolutions, circulars and policy, those have acquired the

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status of substantive posts on expiry of period of three years. According to the applicants,

there is no substance in the objection/contention that the original applications are

without joining necessary parties, as according a decision of the Apex Court, in case of

dispute over a particular principle or rule, the State is the only necessary party.

20. An additional rejoinder affidavit has been filed on 12.8.2002 by respondents No.

1 to 3 contending inter alia, that applications are fishing and roving in nature, that

rejoinder of applicants are vague and camouflage void and null claims by irrelevant

contentions and allegations, that applicants have no locus to seek reliefs and have

disputed alleged mandate of immediate appointments of direct recruits on selection by

MPSC making reference to the past events, have stated that promotions have been

through DPC, have denied correctness of information of applicants and have alleged

that rejoinders of applicants are intended to create confusion and have disputed claims

under the same.

21. It appears that extensive hearing had taken place before the learned Tribunal and,

by judgment and order dated 22. 11.2002, the Division Bench of the Tribunal had

allowed Original Application No.256 of 2000, directing Respondent No. 2 therein to

prepare a fresh seniority list by strictly following quota rule and to give appropriate

treatment to the direct recruits and promotees in their respective posts, with a further

direction to prepare seniority list of each year during which appointments by nomination

were made as on 1st January or 1st April of the respective year with meticulous

identification of all the posts having attributes of permanency and to complete the

exercise within a time-frame of six months. It was also declared that till preparation of

revised seniority list, the existing seniority list shall continue to be merely working one

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and benefits flowing therefrom, if any, shall remain fortuitous. It was held by the learned

Tribunal that the promotion orders were issued hastily.

22. Writ Petition No.2055 of 2003 has been filed by Abdul Rauf Shaikh against

aforesaid decision of the Tribunal, who has entered the government service by selection

through MPSC in 1980 and served as District Inspector of Land Records and had been

promoted as Block Development Officer Class II since 1983. He was thereafter promoted

to MDS Class I cadre by notification in 1989 having considered by the departmental

promotion committee. Rule had been issued in the said petition, on 15th July, 2003

with a direction to place the same with Writ Petition No. 2178 of 2003, which writ

petition had been filed by government authorities impugning the very same order of the

Tribunal dated 22nd November, 2002 in which also rule had been issued by this Court.

However, this Court had made the seniority that will be fixed, subject to outcome of the

writ petition.

23. Writ Petition No.3469 of 2003 has been filed by Ankush Bagate and others,

seeking quashing of the judgment and order dated 22nd November, 2002 passed by the

Tribunal, in which rule had been issued on 7th December, 2003. By an order dated

6.2.2004 it had been made clear that seniority list fixed shall be subject to outcome of the

Writ Petition.

24. To the aforesaid order of the Tribunal, as well as further orders passed by it in the

contempt proceedings and other applications, exception has been taken in the present

batch of writ petitions.

25. The applicants in original application No. 256 of 2000 had filed Contempt

Petition No. 89 of 2003 before the Tribunal, alleging non-compliance of order dated

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22.11.2002 of the Tribunal directing preparation of fresh seniority list. In the Contempt

Petition, an order came to be passed by the learned Tribunal on 28-04-2004. Under the

order, the Tribunal purported to explain to the respondents implications of non

compliance of its order in original applications purporting to give concrete example

requiring proportionate apportionment between direct recruits and promotees and

conversion of posts into permanent ones and directing preparation of revised seniority

list, for the period 1984 to 1990 in the first instance, within a period of six weeks and

submit the same to it.

26. It appears that after the order dated 28-04-2004 was passed by the Tribunal, the

Respondent-State had filed Miscellaneous Application No. 219 of 2004 before the

Tribunal seeking stay to proceedings of contempt petition No. 89 of 2003. One of the

petitioners in Writ Petition No. 3469 of 2003, namely, Namdeo Malhari Raskar had filed

Miscellaneous Application No.126 of 2004 for intervention in the contempt petition. The

Tribunal rejected both the miscellaneous applications, observing that petitioners should

file appropriate proceedings to challenge order dated 28-04-2004.

27. Aforesaid order in contempt proceedings and the orders passed in miscellaneous

applications were challenged before this court in a batch of writ petitions bearing No.

4650, 4661 and 4663 of 2004. Under order dated 22-07-2004 passed in said group of

petitions, this Court had directed the Tribunal to hear the application for stay of the

contempt proceedings, irrespective of rejection of such application on the ground of

locus in the contempt petition. While passing said order dated 22.7.2004, this

Court was alive to the fact that while dealing with the contempt proceedings, the

Tribunal had given directions explaining its earlier order in the original applications

which were likely to affect the parties to the original application. This Court, therefore,

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felt it necessary to direct the Tribunal to independently consider the applications of the

petitioners therein including for relief of stay of the contempt proceedings.

28. Accordingly, petitioners in Writ Petition No. 2466 of 2005 had filed review

application No.11 of 2004 and petitioners in Writ Petition No. 4650 of 2004 had filed

review application No. 12 of 2004 before the Tribunal. By its judgment and order dated

3.11.2004, the Tribunal dismissed both the review applications, holding that the order

dated 28.4.2004 passed in Contempt Petition No.89 of 2003 which was under review

was calrificatory in nature and further that the contempt petitioners did not insist on

giving effect to implementation of directions/observations of the Tribunal in its order

dated 28.4.2004 because of the statement made on behalf of the government-respondent

No. 2 as the cause of discontent had ceased to subsist.

29. Writ Petition No. 2466 of 2005 has been preferred by petitioners in Writ Petition

3469 of 2003, challenging the order passed by the Tribunal on 3rd November, 2004 in

Review Applications No.11 and 12 of 2004, and to have set aside, order dated 28th

April, 2004 in contempt petition. It appears that in the interregnum, the contempt

petition had been disposed of under order dated 21.1.2006 and the seniority list of MDS

Class I cadre had been been published on 21.11.2005. Thus, it was prayed under

amendment to writ petition no.2466 of 2005 that those orders as well as the seniority list

be quashed and set aside and that no promotion orders pursuant to the same be issued.

In this petition, this court passed an order on 8.4.2005 issuing "Rule" and granting

interim relief in terms of prayer clause "B" which runs as under:

"B. That, pending final disposal of this Writ Petition as and by way of interim
relief, stay may be given to the effect and operation and implementation of the
order dated 28th April 2004 and particularly to the seniority list which has been
prepared in the light of the so called clarificatory order given by the Honourable
Tribunal dated 28th April 2004 in Contempt Petition No.89 of 2003."

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This relief, however, was granted without precluding implementation of the order of the

Tribunal dated 22.11.2002 expecting that the matter would be heard peremptorily on

6.9.2005. The petitioners have further referred to that one more Writ Petition No. 6451

of 2004 had been filed in the High Court wherein this Court had declined to interfere on

the count that it was a follow up action.

30. Writ Petition No.2980 of 2005 has been filed by one Sahebrao Waghmare,

impugning final seniority list published on 21.11.2005, by the Deputy Secretary, Rural

and Water Conservation Department of Government of Maharashtra.

31.

Writ Petition No. 4023 of 2007 has been preferred by the Petitioners,

against order passed by the Tribunal in Contempt Petition No.89 of 2003 in Original

Application No.256 of 2000 and the final seniority list dated 22nd November, 2005

published by the Rural Development and Water Conservation Department of Government

of Maharashtra, and seeking a mandamus to the Government to prepare provisional and

final seniority lists on the basis of the MDS Class I cadre, excluding schematic / ex-cadre

posts.

32. In all the aforesaid Writ Petitions, "rule" has been issued. Save granting of interim

relief in terms of prayer clause (B) in Writ Petition No. 2466 of 2005, in other writ

petitions grant of interim relief had not been considered, expecting to take up those for

final hearing sooner and expeditiously.

33. It has been referred to that the Respondent-State had published a revised interim

seniority list of MDS Class I cadre, which has prejudicially affected the petitioner-

promotees. Some of the Petitioners have raised objection to said revised interim seniority

list. It has been alleged that though the contempt petition had been pending, the seniority

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list dated 28.10.2004 has been prepared as if it is in faithful compliance of the order of

the Tribunal dated 22.11.2002.

34. The Petitioners contend that order dated 28.4.2004 in Contempt Petition No.89

of 2003 is in excess of the jurisdiction of the proceedings under contempt and that said

order substantially modifies the basic order dated 22.11.2002 passed in Original

Application No.256 of 2000. The Petitioners purport to claim that although the order of

this Court in Writ Petition No.4650, 4661 and 4663 of 2004 had been pointed out to the

Tribunal, yet the Tribunal had rejected the review applications. Having regard to

aforesaid, according to the petitioners, they had been left with no alternative but to

invoke powers and jurisdiction of this Court under
Article 226
of the Constitution of

India against series of orders passed by the Tribunal, including order dated 3.11.2004

and the seniority lists published on 28.10.2004 and 21.11.2005.

35. Petitioners with specific reference to MDS Rules, 1973 have contended that under

sub-rule (4) of Rule 3 thereof, composition of the MDS Class-I cadre has been referred

to and have also referred to that sub-rule 6 provides mechanism and/or procedure for

alteration in the number of posts by inclusion or exclusion of post and categories. It

has been contended that from MDS Class-I cadre posts, 25 posts of Planning Officers

have been removed and transferred to Finance and Statistics Department of the State.

36. The petitioners have contended that the Tribunal had been in gross error in

directing the Authorities under its order dated 28.4.2004 in contempt proceedings to take

into account such posts which do not form part of MDS Class-I cadre, and further that

29 posts of Project Director (DRDA), 8 of Programme Officer (DPAP) 29 of Planning

Officer, 4 of Regional Nutrition Officer and 4 of Child Development Officer cannot be part

and parcel of MDS Class-I cadre.

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37. The petitioners have alleged that the State has been in gross error in taking of

fluctuating stands in the matter, as on one hand on affidavit it has been contended that

aforesaid 231 posts do not form part of MDS Class-I cadre and quota rule was not

applicable to those and has yet referred to those in the chart of MDS Class-I cadre.

38. The petitioners contend that the District Rural Development Authority is a

corporate body under the provisions of the
Maharashtra Cooperative Societies Act, 1960

and is an independent establishment separate from Government of Maharashtra. The

posts of Programme Officer are created by orders of the Central Government for the

purpose of Water Share Development Programme. The posts of Deputy Chief Executive

Officer (Child Welfare) are creation of Women and Child Development Department of the

State Government. Posts of Child Development Officer have been created pursuant to

the directions given by the Central Government from 1971 to 1992. It is submitted that

all the posts referred to herein above are schematic/project/programme posts, which

have been given extension from year to year, and their financing is shared by the State

and Central Governments. It has been submitted that schematic/project/programme

posts are inherently temporary in nature and the posts cannot be accorded status of MDS

Class-I cadre and has not been so accorded by any notification or order. Most of the

aforesaid posts have lapsed during 1999-2000 and were not part of regular

establishment or for that matter MDS Class-I cadre and as such quota rule would not be

applicable to them.

39. As regards posts of Planning Officer, it is submitted that 29 posts of Planning

Officer had been en-bloc transferred to the Finance and Statistic Department of

Government of Maharashtra resulting in reduction of strength of Class I cadre.

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40. It was thus contended that the Tribunal has been in absolute error in issuing

directions on 28.04.2004 referring it to as clarification in nature whereunder it had been

directed to confirm 80 percent of posts and subsequently the rest of 20 percent.

According to applicants, the State under the circumstances was compelled to take into

consideration said posts although they never formed MDS Class-I cadre .

41. The petitioners have objected to exercise of powers by Tribunal and the manner

in which the orders have been passed in contempt proceedings, which according to them

modify the original order, without taking into account distinction between jurisdiction in

contempt and that in review. It has been contended that though the Tribunal refers to

order dated 28.4.2004 as "order in nature of clarification", the order, in fact modifies and

reviews order dated 22.11.2002.

42. According to applicants, while the final orders of the Tribunal passed in original

applications no. 254 and 256 of 2004 were sub judice before the High Court, there was

no propriety in passing further orders concerning order dated 22.11.2002, especially

when the High Court had seisin over the matter. It is submitted that the High Court

had therefore passed order in respect of the Tribunal's orders in subsequent proceedings.

It has been submitted that none of the situations warranted invocation of jurisdiction for

contempt or review of the order dated 22.11.2002 passed by the Tribunal and as such

the Tribunal has been in gross error in passing further orders.

43. In paragraph 27 of the Writ Petition, the petitioners have reproduced observations

of the Tribunal in the order dated 28.4.2004. It would be worthwhile to refer to those

which are as under:

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"27. Shri Jagtap-Under Secretary to the Government in the Rural Development
and the Water Conservation Department Mantralaya, Mumbai is present in the

Tribunal. He has been explained what actually, are implications of the final order.

We have also given a concrete example, for the purpose of illustruction. For
instance, if there are posts in the year 1984, 1985, 1986, 1987, 1988 and 1989, as
the case may be continuously for the period, in excess of three years 140 slots will
go to the share of the appointees by the nomination and 140 slots will go to the

promotees. Further for instance, if there are 100 posts, in existence over the
period of time, continuously, 80 of those posts would need to be converted into
the permanent post in the fourth year 16 more post to be converted into fifth year,
three more post to be converted into sixth year and the remaining one post is to
be converted in the seventh year. In the process all 100 posts would need to be

converted into permanent post subject to all posts those being continuously in
existence for the period of seven years."

44.

The Petitioners contend that there is no such point discussed at all in the order

passed in Original Application nor any such arguments were advanced which is borne out

from the original order of the Tribunal dated 22.11.2002. According to the petitioners,

there is no question of clarification as has been stated by the Tribunal and as such even

assuming the same for the sake of arguments, advisory role was not warranted, for,

according to them, it is an otiose act as purported clarification is about a non subsisting

thing.

45. According to the petitioners, afore-quoted paragraph proceeds on assumption

that there is a government resolution according to which permanency can be granted to a

temporary post on expiry of certain number of years, whereas the factual position is

different. The petitioners contend that by giving directions as quoted above, there has

been gross transgression of power by the Tribunal and, according to them, same

amounts to assumption of jurisdiction for review in contempt proceedings which is illegal

and untenable. The Tribunal could not make short work of the same by terming it to be

clarification, instead of modification. According to the petitioners, the Tribunal had been

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in absolute error since this point had been specifically raised and yet it had not been

discussed.

46. The petitioners contend that in the absence of identification of posts having

attributes of permanency as directed under paragraph 32 of the original order dated

22.11.2002, further exercise has been futile and plainly bad in law and illegal.

47. Making a reference to the data considered by the Tribunal in its original order,

it is submitted by the petitioners that it was imperative to have considered the total

strength of the MDS Class I cadre only as contained in MDS rules.

48. According to the petitioners, there has been mutual incompatibility in the

observations in the original order passed on 22.11.2002 and those on 28.4.2004, for, in

paragraph 32 of the original order, it has been stated that paragraph 9 of the said order

should be read in paragraph 32 which, according to the petitioners, is by way of

discussion and it does not form part of the operative order, while in the order dated

28.4.2004, the Tribunal observes that whatever has been stated in the body of the order

amounts to mandatory directions whether it be expressed in the operative part of the

order or otherwise. According to the petitioners, in such a case, the directions contained

in paragraph 32 were redundant. According to them, even if it is assumed that the order

dated 28.4.2004 has its genesis in the Government Resolution dated 7.3.1996, said

resolution, however, applies to temporary occupancies beyond the period of three years

in respect of the posts which are on permanent establishment and corollary of the same is

that the government resolution would not help the posts on temporary establishment

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and the State has given year wise total strength of MDS Class I cadre Officers working on

various posts in the affidavit in reply.

49. The petitioners contend that the order dated 28.4.2004 causes enlargement of

scope of observations under paragraph 9 of the order dated 22.11.2002 and the same is

in modification not only of the original order but even the Government Resolution dated

7.3.1996 which relates and confines only to the posts on permanent establishment

inasmuch as the order dated 28.4.2004 directs application of said Government Resolution

to the posts not on the permanent establishment.

50.

The petitioners intend to submit that in terming order dated 28.4.2004,

as clarificatory, the Tribunal is under misconception and is absolutely a

misnomer.

51. The petitioners have submitted that the Tribunal has committed error in

approving the seniority list dated 21.11.2005 of MDS Group A, considering the same to

be in conformity with the order passed by this Court in Civil Application No.7793 of

2005 in Writ Petition No.2466 of 2005, absolutely without considering that the interim

relief in terms of prayer clause (B) granted by this Court was to the operation and

implementation of the order dated 28.4.2004 since said seniority list has been prepared

pursuant to order dated 28.4.2004 in Contempt Petition No.89 of 2003 and without

realizing that this Court had not stalled the original order of the Tribunal dated

22.11.2002 in Original Applications No. 254 and 256 of 2000.

52. The petitioners submit that the Tribunal, in fact, defies the order of the High

Court dated 08.04.2005 and ignores the effect of the order of this Court which has

stayed effect, implementation and operation of the order passed by the Tribunal on

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28.04.2004 in Contempt Petition No. 89 of 2003. According to the petitioners,

the seniority list dated 21.11.2005 approval to which was purportedly granted by the

Tribunal is practically the same as prepared on 28.10.2004. The petitioners have

alleged that the Government has committed an error in inclusion of posts which were

down graded, discontinued or transferred to other departments from the cadre of MDS

Class-I group A. The petitioners have alleged that the Tribunal while approving the

seniority list of MDS Group A dated 21.11.2005 for application of quota rule has ignored

the recruitment rules and the directions issued by this Court. According to the

petitioners, order dated 21.01.2006 of the Tribunal in Contempt Petition No. 89 of

2003 is contrary to the rules and directions of this Court. The petitioners submit that

grave prejudice would be caused to them in implementation of aforesaid seniority list and

not only that their position would be affected but also their pay scales would face

downward motion. According to the petitioners, there has been no proper

implementation of the original order of the tribunal dated 22.11.2002 and the

Government has not yet taken any decision and as such, the directions of the Tribunal

cannot be implemented and further that the directions, on factually incorrect

assumption of a government resolution when there is no such one, are unsustainable.

53. In original applications No. 254 and 256 of 2010 the Tribunal appears to have

considered that the question involved in the matter is of inter-se seniority between the

direct recruits and promotees and application of quota rule (MDS Rules, 1973). It

appears, the Tribunal purported to take into account historical background in creation

of MDS.

54. According to the Tribunal, strength of class-I officers had been 110 and aforesaid

were permanent posts, whether notified or otherwise. The Tribunal further purports to

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say that the posts of Deputy Chief Executive Officers and Block Development Officers are

statutory posts, being Secretaries to the Zilla Parishads and Panchayat Samitis

respectively in terms of the Maharashtra Zill Parishads and Panchayat Samities Act, 1961

and, therefore, cannot be said to have been sanctioned for a limited period of time and

went on to observe that these posts are permanent posts, irrespective of whether any

notifications making them permanent were issued or otherwise.

55. The Tribunal has purported to refer to meaning and definition of a few terms and

expressions from Rule 9 of MCS (General Conditions of Service) Rules 1981, viz. "cadre"

to mean a group of permanent as well as temporary posts, sanctioned from time to time,

of a service or a part of a service sanctioned as a separate unit. Then "permanent post"

which is to mean a post carrying a definite rate of pay sanctioned without limit of time,

and "temporary post" meaning a post carrying a definite rate of pay sanctioned for a

limited time. Thereafter, the Tribunal has also referred to rule 3 of the Maharashtra Civil

Services (Regulation of Seniority) Rules 1982 and expressions thereunder, viz. "direct

recruit" meaning in relation to any post, cadre or service, a person appointed by

nomination, so also term "fortuitous appointment" meaning a temporary appointment

made pending a regular appointment in accordance with the provisions of the relevant

recruitment rules, as also "promotee: which means, in relation to any post, cadre or

service, a Government servant appointed thereto by promotion from a lower post, cadre

or service. The Tribunal has also referred to Rule 4(1) of said Seniority Rules which

speaks of seniority of a government servant in relation to any post, cadre or service being

ordinarily determined on the length of his continuous service therein and further that

service rendered under "fortuitous appointment" shall be excluded from computation of

length of service and the incumbent shall be deemed to have been appointed from the

date on which his regular appointment is made in accordance with relevant rules.

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56. The Tribunal clarifies that the events/developments narrated in paragraphs 3 and

4 of its judgment are for the period prior to the formation of Maharashtra Development

Service and found that it is only in 1973 that the Maharashtra Development Service

(Constitution, classification and recruitment) Rules 1973 have been framed for Zilla

Parishads and that as per rules 3(2) and 3(4) of the Rules, the Development Service shall

consist of classes, namely,

(a) Maharashtra Development Service Class I (super time scale)

(b) Maharashtra Development Service Class I, and

(c) Maharashtra Development Service Class II.

It has been noted by the Tribunal that as per sub rule (4) of Rule 3, the MDS Class I

shall consist following posts:-

(a) 25 posts of Deputy Chief Executive Officers of Zilla Parishads

(b) 25 posts of Administrative Officers of Zilla Parishads

(c) 25 posts of Planning Officers of Zilla Parishads and

(d) 31 posts of Block Development Officers (Higher Grade) of Zilla Parishads.

57. According to the Tribunal, however, there is omission to add four posts of

Assistant Commissioner (Development) under oversight and/or inadvertence in their

inclusion in aforesaid Class I service and purported to hold that said four posts continue

to to be MDS Class I. According to the Tribunal, the omission underwent corrective

action from 1980. The Tribunal has then referred to that there has been transfer of 25

posts of Planning Officer from MDS Class I to Maharashtra Economics and Statistical

Service Class I under the Directorate of Economics and Statistics.

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58. Thereafter the Tribunal observes that around 1985, 25 posts of District Rural

Development Agencies (DRDA)came into existence under
Societies Registration Act
and

under memorandum/Articles of Association, 25 posts of Project Director (i.e. Project

Officers as were earlier termed) DRDA came into existence without prescription of time

limit and according to the Tribunal, those posts too were manned by MDS Class I Officers

irrespective whether those posts were notified as permanent or otherwise. The Tribunal

then vaguely referred to that these posts acquired status of statutory posts that is to say

permanent posts.

59. The Tribunal has then referred to Rule 5 of 1973 Rules and has purportedly

considered that there were only two modes provided for recruitment/appointment in

MDS Class I viz. (i) by promotion from among members of MDS Class II or by temporary

transfer of Officers from Class I Service of the State.

60. Thereafter, the Tribunal refers to rule 7 of the 1973 Rules regarding absorption

of certain officers. Sub rule (2) of Rule 7 specifically provides that, for the category of

officers to be so absorbed, only 25 per cent posts in MDS Class I shall be reserved.

61. The Tribunal relies, on a government notification dated 11.7.1974 issued by Rural

Development Department whereunder the government had declared a few posts

involving duties comparable in importance and responsibilities attached to those in MDS

Class I and on amended rule 5 referring to that appointment in MDS Class I would now

be from three sources, namely, (i) nomination, (ii) promotion and (iii) transfer of officer.

62. The Tribunal, in paragraph 13 of its judgment, has observed that the respondents

had specifically stated that these rules came into effect from 20.7.1981 and further that

the same has little relevance to the decision on controversy involved in the matter.

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According to the Tribunal, the amendments came into effect from 1.4.1979 and has

further observed to that the proviso to the rule creates a first impression that the ratio

with regard to quota of direct recruits and that of promotees is variable from 1.4.1982 i.e.

35 to 50 for direct recruits and 65 to 50 for promotees. According to the Tribunal,

however, this was a result of "clumsy articulation" and, in fact, according to the Tribunal,

" the intent obviously was to transit from the minimum level to the maximum level in a

phased manner after the minimum level was achieved by 1st April 1982.''

63.

The Tribunal purports to say that the proviso will have to be read in harmony

with the government circular of General Administration Department dated 26.3.1970

which, according to the Tribunal, as the Administrative Reorganization Committee had

recommended to maintain proper balance between direct recruitment and promotion

to posts in Class I Service and to raise direct recruitment to 50 per cent and accordingly

to review the existing ratio, necessarily implies and mandates that, existing proviso

ought to conform to the recommendations, therefore, the proviso ought to have been

better articulated. The proviso as subsisting is as under:

" Provided that, appointment by nomination shall be made with effect from the 1st
April 1979 or thereafter in such phased mannere as would ensure that the total
number of officers directly recruited in Maharashtra Development Service, Class I,

shall not at any time after the 1st April 1982, be less than 35 per cent and more
than 50 per cent of the total number of posts in that cadre; or,

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64. The Tribunal considered that instead of the existing one, the proviso shall be as

suggested and drafted by the Tribunal in paragraph 22 of its order dated 22.11.2002.

The text of proviso given by Tribunal is as hereinbelow.

" Provided that, appointment by nomination shall be made with
effect form the 1st April, 1979 or there after in such phased
manner as would ensure that the total number of officers directly

recruited in Maharashtra Development Service, Class-I,shall not at
any time after the 1st April, 1982, be less than35 percent of the
total number of posts in that cadre, so however, that once the

number of officers appointed by nomination reaches the level of 50
percent on or before the 1st April, 1985 that level at 50 percent

shall be maintained thereafter"

65. The Tribunal, therefore, went on to observe that on harmonious interpretation of

relevant material, it has to be said that the ratio prescribed is not flexible/variable, but

once minimum level transits to maximum level at 50 per cent the ratio between direct

recruits and promotees shall stand fixed at 50:50. The Tribunal has held, Administrative

Reforms Committee's recommendation no longer remains a mere recommendation. The

government having accepted that recommendation, it stands transformed into a

government decision.

66. The Tribunal has referred to requisitions and appointments year-wise from 1984

to 1989 in paragraph 16 of its order and had purportedly summed them up in a tabular

form. The Tribunal, however, in the process has made a light work of the information

and statistics submitted by the concerned respondents about there being no breach of

quota rule and that there was no quota or vacant slot available within the quota of direct

recruits by saying that there were lot of accounting errors in identifying the permanent

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posts and "also the posts which have attributes of permanent posts". The Tribunal

presumed that unless there were slots available for direct recruits there could not have

been requisitions to the MPSC for recommendation of the candidates and according to

the Tribunal, the respondents are estopped from contending that no slots were/are

available for the direct recruits within their quota and the stand taken by the

respondents, amounts to Government acting in an irresponsible manner. The Tribunal

went on to observe that no relevant record had been produced as had been required. In

the opinion of the Tribunal, the respondents were naive enough to believe that they can

throw dust in the eyes of the Tribunal by presenting unsustainable statistics.

67. The Tribunal in paragraphs 24 to 30 of its order has discussed the case law cited

on either side and in paragraph 31 , purported to hold that that the quota rule having

not been maintained, there is continuing cause of action, though the final seniority list

had been published way back in 1996 and that though quota rule has reflection on

seniority, it is also an independent and substantive subject in itself and, therefore, bar of

limitation under
Section 21
of the Administrative Tribunals Act cannot be attracted. The

Tribunal, however, further stated that " The text of the promotion order cries out loudly

and clearly that it was issued in an ugly and unholy haste. No magnifying glass is needed

to discern this " .

It would be appropriate to refer to the textual contents of paragraphs no. 32 and 33

of the order dated 22.11.2002 passed by the Tribunal.

"32 . In the forestalled circumstances the original Application no. 256 /2000 has to
succeed. In point of fact, this case is on all fours with V. P. Shrivasava Vs. State of
M.P.(AIR-1996-SCW-946). The respondent no.2 will, therefore, have to be directed
to prepare fresh seniority lists strictly following the quota rule and by giving
appropriate fitment both to the direct recruits and promotees within their respective
quota. Such seniority lists will have to be prepared for each of the year during which
appointment by nomination were made, as on the 1st January or 1st April of the

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respective year as the practice may be. Such an exercise, including meticulous
identification of all the posts having the attributes of permanent posts, will have to be

carried out and completed within a given time frame of six months from receipt of a
copy of this order. We direct the respondent no.2 accordingly. Till such fresh
seniority list/lists are prepared the existing seniority lists shall be continue to be

merely working seniority lists and the benefits flowing thereform, if any, shall
remain fortuitous.

33. Once Original Application No. 256/2000 is decided in favour of the petitioners,
it is inconsequential and immaterial, whether the promotee officers had indeed been

pushed ahead. The strict implementation of the quota rule will take in its stride
corrective action to set right such distortions if any. If they were not within their quot
they will be pushed down. We have, however to observe that both the proposals were
in the pipeline around the same time. We had required the respondent no.2 to
produce the original record. However, the original record relating to promotion of

promotee officers from MDS Class-II to MDS Class-I has not been produced in spite of
repeated opportunities. An inference is, therefore, inescapable that there must be

substance in the allegation. The text of the promotion order itself cries out loudly and
clearly that it was issued in any ugly and unholy baste. No magnifying glass is
needed to discern this. Ten Officers were promoted by the said order. The sentence
below the order states that the detailed posting orders in respect of the rest of the

officers other than Bagate and Shinde will be issued separately. The next sentence
states that the detailed positing orders in respect of of Bagate and Shinde will be
issued separately. If the detailed posting orders in respect of all the ten officers were
to follow what was the pressing urgency in issuing promotion orders without postings
has only to be imagined. We, have however, refrained from adjudicating this

position. The said petition has stood rendered infructuous. "

It appears that Writ Petition No.2178 of 2003 filed by the State Government for quashing

and setting aside the order of the Tribunal dated 22.11.2002 has been disposed of on

17.1.2012 on the statement made on behalf of the State Government that it would

maintain 50 per cent quota each of direct recruits and promotees.

68. Learned Counsel appearing on either side advancing cause of promotees and of

direct recruits have tried to buttress their submissions on the basis of various citations

referred to and relied on by them.

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69. Mr. Anturkar and other learned Counsel supporting him on behalf of the petitioners

have referred to and relied on following citations.

70. The first citation relied on by the Petitioners is V.B. Badami vs. State of Mysore

AIR 1980 SC 1561, which was a case in respect of Karnataka Administrative Service

(Recruitment) Rules 1957. Referring to said case, it is submitted that the Supreme Court

has ruled that while working out quota rule between direct recruits and promotees, the

general principles followed are where rules prescribe quota between direct recruits and

promotees, confirmation or substantive appointment can only be in respect of clear

vacancies in the permanent strength of the cadre. Secondly, confirmed persons are to be

senior to those who are officiating and thirdly, as between persons appointed in

officiating capacity, seniority is to be counted on the length of continuous service and

fourthly, direct recruitment is possible only by competitive examination which is the

prescribed procedure under the rules. It has further been ruled by the Supreme Court

that there cannot be exchange of posts under the quota rules between direct recruits and

promotees and vice versa.

71. The other citation is the case of
Sonal Shimappa vs. State of Karnataka
& ors.,

1987 DGLS (Soft) 960 = 1987 AIR (SC) 2359 wherein the case of V.B. Badami

referred to above
has been followed.

72. Petitioners further relied on A.R. Sircar vs. State of Uttar Pradesh, 1992 DGLS

(Soft) 437=1993 (Supp.2) SCC 734, to support their case on de-facto doctrine. It has

been held that the de-facto doctrine requires that, evenwhere an an act is declared ultra

vires but prior to such declaration some act or decision was taken bonafide in accordance

with the rules and provisions of the Act, such decision taken would be saved by de-facto

doctrine. The Supreme Court was dealing with the U.P. State College Medical Teachers

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Service Rules framed under Gandhi Memorial and Associated Hospital (Taking Over) Act,

1983. According to the petitioners, in the present case, factual situation is somewhat

similar, as it has to be considered that the State Government had prepared a provisional

list in 1995 wherein they were shown to be senior to the concerned respondents and

final seniority list had been issued in 1996 wherein also the petitioners were senior to

the concerned respondents and, therefore, contended that subsequent disturbance by the

Tribunal should not affect the bonafide decision taken by the State Government having

regard to the de-facto doctrine.

73.
In
Rana R. Singh vs. State of UP
, 1989 SC 218= 1989 SCC Supp.1 615, again

the issue was regarding seniority as between the direct recruits and promotees governed

by Uttar Pradesh Police Service Rules, 1942 framed under
Section 241
of the Government

of India Act, 1935. The Supreme Court had refrained from passing an order which would

have resulted in re-opening the question of seniority causing serious prejudice to many

officers and since many officers had obtained further promotions and few were retired

and some officers were not before the court. Therefore, without disturbing the situation,

it was directed that a seniority be refixed on the basis of the Rules from 1981 onwards

and quota rule be applied.

74. A Constitution Bench of the Apex Court, in
Direct Recruit Class II Engineering

Officers Association vs. State of Maharashtra
, reported in 1990 AIR

(SC)-0-1607=1990 SCC (2) 715, was once again dealing with rivalry for seniority in

service between the direct recruits and the promotees. It would be appropriate to

reproduce here paragraphs 11 and 13 of said judgment:-

11. Although the claim of the promotees to reckon the seniority according to the
continuous officiation was accepted by this Court in Patwardhan's case in 1977,
the State Government continued denying them the fruits of the litigation. The

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High Court on a complaint made by Bagayat Patil, took note of the delay and
issued directions for implementation of the judgment. Still nothing was done till

1984 and an application for starting proceedings in contempt was made before
the High Court. In the meantime a fresh writ petition being W.P. No. 660 of 1984
was filed by the direct recruits before the Aurangabad Bench of the Bombay

High Court and stay was obtained. Thereafter a number of similar applications
were filed one after another, either before the Nagpur Bench or the Aurangabad
Bench of the Bombay High Court. When the promotees pointed out before this
Court the game of the direct recruits, a direction was issued for hearing of all the
cases at Bombay. Accordingly, all the 15 writ applications were transferred and

heard together at Bombay. The High Court rejected the case of the direct recruits
and dismissed the writ petitions. The petitioners in 9 of them have challenged the
judgment in Civil Appeals No. 194-202 of 1986.

13. When the cases were taken up for hearing before us, it was faintly suggested

that the principle laid down in Patwardhan's case (AIR 1977 SC 2051) was
unsound and fit to be over-ruled, but no attempt was made to substantiate the
plea. We were taken through the judgment by the learned counsel for the parties

more than once and we are in complete agreement with the ratio decidendi,
that the period of continuous officiation by a government servant, after his
appointment by following the rules applicable for substantive appointments, has

to be taken into account for determining his seniority; and seniority cannot be
determined on the sole test of confirmation, for, as was pointed out,
confirmation is one of the inglorious uncertainties of government services
depending neither on efficiency of the incumbent nor on the availability of
substantive vacancies. The principle for deciding inter se seniority has to conform

to principles of equality spelt out by Arts. 14 and 16. If an appointment is made
by way of stop-gap arrangement, without considering the claims of all the
eligible available persons and without following the rules of appointment, the

experience on such appointment cannot be equated with the experience of a
regular appointee, because of the qualitative difference in the appointment. To
equate the two would be to treat two unequals as equal which would violate the
equality clause. But if the appointment is made after considering the claims of

all eligible candidates and the appointee continues in the post uninterruptedly till
the regularisation of his service in accordance with the rules made for regular
substantive appointments, there is no reason to exclude the officiating service for
purpose of seniority. Same will be the position if the initial appointment itself is
made in accordance with the rules applicable to substantive appointments as in
the present case. To hold otherwise will be discriminatory and arbitrary.
This

principle has been followed in innumerable cases and has been further
elaborated by this Court in several judgments including those in
Baleshwar Dass
v. State of U.P. and others
, [1981] 1 SCR 449 (AIR 1981 SC 41), and Delhi Water
Supply and Sewage Disposal Committee and others v. R.K. Kashyap and others,
(1989) Supp. 1 SCC 194 (AIR 1989 SC 278), with which we are in agreement.

In

Narender Chadha and others v. Union of India and others
, (1986) 1 SCR 211
(AIR 1986 SC 638), the officers were promoted although without following the

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procedure prescribed under the rules, but they continuously worked for long
periods of nearly 15-20 years on the posts without being reverted. The period of

their continuous officiation was directed to be counted for seniority as it was
held that any other view would be arbitrary and violative of
Articles 14
and
16.

There is considerable force in this view also. We, therefore, confirm the

principle of counting towards seniority the period of continuous officiation
following an appointment made in accordance with the rules prescribed for
regular substantive appointments in the service.

The Supreme Court has summed up and held in paragraph 44 as under:-

"44. To sum up, we hold that:

(A) Once an incumbent is appointed to a post according to rule, his seniority
has to be counted from the date of his appointment and not according to the

date of his confirmation. The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made as a stop-gap
arrangement, the officiation in such post cannot be taken into account for

considering the seniority.

(B) If the initial appointment is not made by following the procedure
laid down

by
the rules but the appointee continues in the post uninterruptedly till the
regularisation of his service in accordance with the rules, the period of officiating
service will be counted.

(C) When appointments are made from more than one source, it is permissible

to fix the ratio for recruitment from the different sources, and if rules are framed
in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to the existing quota rule, it should be
substituted by an appropriate rule to meet the needs of the situation. In case,
however, the quota rule is not followed continuously for a number of years
because it was impossible to do so the inference is irresistible that the quota rule

had broken down.

(E) Where the quota rule has broken down and the appointments are made from
one source in excess of the quota, but are made after following the procedure
prescribed by the rules for the appointment, the appointees should not be
pushed down below the appointees from the other source inducted in the

service at a later date.

(F) Where the rules permit the authorities to relax the provisions relating to the
quota, ordinarily a presumption should be raised that there was such relaxation
when there is a deviation from the quota rule.

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(G) The quota for recruitment from the different sources may be prescribed by
executive instructions, if the rules are silent on the subject.

(H) If the quota rule is prescribed by an executive instruction, and is not
followed continuously for a number of years, the inference is that the executive

instruction has ceased to remain operative.

(I) The posts held by the permanent Deputy Engineers as well as the officiating
Deputy Engineers under the State of Maharashtra belonged to the single cadre
of Deputy Engineers.

(J) The decision dealing with important questions concerning a particular service
given after careful consideration should be respected rather than scrutinised for
finding out any possible error. It is not in the interest of Service to unsettle a
settled position. With respect to Writ Petition No. 1327 of 1982, we further hold:

(K) That a dispute raised by an application under
Art. 32
of the Constitution must

be held to be barred by principles of res judicata including the rule of
constructive res judicata if the same has been earlier decided by a competent court
by a judgment which became final.

In view of the above and the other findings recorded earlier, we do not find
any merit in any of the civil appeals, writ petitions and special leave petitions
which are accordingly dismissed. There will be, however, no order as to costs.
Order accordingly.

75. The petitioners have also relied on
Keshav Chandra Joshi vs. Union of India
,

1990 DGLS (Soft) 638 = 1991 AIR (SC) 284, wherein it has been held that officiation

by adhoc appointee would not be considered for computing seniority if the same is not

according to the rules.

76. Same principle has been reiterated in
State of West Bengal vs. Aghore Nath Dey
,

1993 DGLS (Soft) 324 = 1993 (3) SCC 371, that adhoc services cannot be upheld if

same are in violation of rules.

77. Similar ratio has been
laid down in

State of Uttar Pradesh v. R.K. Tandon
DGLS (Soft) 1096 = 1996 AIR (SC) 3505, so also in
Dinkar Anna Patil vs. State
of

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Maharashtra, 1999 AIR (SC) 152 =1999 SCC (1) 354, wherein in paragraph 20, it has

been observed thus :

"20. The Tribunal upheld the contention raised on behalf of the Government of

Maharashtra and the private respondents that the action of the appellants in
challenging the seniority lists was belated one and the same deserved no
consideration. This finding of the Tribunal, in our considered view, cannot be
sustained. The seniority list prepared as on Ist April 1987 could not have been

challenged by the appellants because at that point of time, they were not born in
the cadre. But, however, the subsequent provisional list as on Ist January, 1991
which was published on 20th January, 1992, the appellants did make their
representation against the same on 23rd September, 1992. Along with the said
representation, they also annexed a copy of the judgment dated 2nd January,
1992 rendered by the Tribunal giving certain directions in respect of seniority list

of Sales Tax Inspectors to be recast strictly in accordance with the quota rule as
provided under the Sales Tax Inspectors Recruitment Rules. These Rules are

similar to the Rules in question. The said representation was rejected and the list
was finalised on Ist February, 1993. The third provisional seniority list as on Ist
January, 1992 of Sales Tax Officers Class-I was published on 26th January, 1993
wherein quota rule was applied and the direct recruits of 1988 batch were placed

above some 22 promotees who were shown in the earlier seniority list as senior to
them. However, while preparing the final seniority list dated 29th December,
1993, the position as reflected in 1991 seniority list was again restored giving
benefit of fortuitous service to the promotees and consequently, the appellants
were shown below these promotees; The appellants did file their representation

against the said seniority list on 30th March, 99 but, there was no response one
way or the other from the Government of Maharashtra. Again, another provisional

seniority list as on 1st January, 1993 was published on 13th June, 1994 and the
said list was again prepared in violation of quota rule. It is true that the appellants
did not file any representation against; this provisional seniority list because it was
not in any way different than the one prepared on 29th December, 1993. Since,
there was no purpose in filing further representation, the appellants approached

the Tribunal for appropriate reliefs. Having regard to this background, we are of
the firm opinion that the original petition of appellants could not have been
branded as suffering from latches. The appellants did approach the Government of
Maharashtra as well as the Tribunal vindicating their grievance as regards their
placements in the seniority lists.

78. The petitioners have relied on yet another decision of the Supreme Court in

Keshav Chandra Joshi vs. Union of India
, AIR 1991 SC 284=1992 SCC (Supp.1) 272,

dealing with U. P. Forest Service Rules, 1952, giving rise to the dispute

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regarding inter-se seniority between promotees and direct recruits. In paragraph 24 of the

judgment, a reference has been made to the case of Direct Recruits' reported in 1990

(2) SCC 715 = AIR 1990 SC 1607, wherein it was held :

"(A) Once an incumbent is appointed to a post according to rule, his seniority has

to be counted from the date of his appointment and not according to the date of
his confirmation. The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and made as stop gap
arrangement, the officiation in such post cannot be taken into account for
considering the seniority.

(B) If the initial appointment is not made by following the procedure
laid down by

the rules but the appointee continues in the post uninterruptedly till the
regularization of his service in accordance with the rules, the period of officiating

service will be counted."

79. To support their contention, the petitioners have also relied on the case of
A.N.

Sehgal vs. Raje Ram Sheoran
, 1991 AIR (SC) 1406 = 1992 SCC (Supp.1) 304.

80. On behalf of Respondents-direct recruits, Mr. Ajay Deshpande, learned Counsel

has categorized the citations relied on by him in support of his submissions in three parts,

viz. (i) limitation, (ii) consideration of temporary posts for application of quota rules and

(iii) promotions not as per rules not to be taken into account for the purpose of seniority.

On limitation, he has referred to only one case
M. Ramkotaiah and

others vs. Union of India
, 2007 AIR SCW 2204. In this case, the Supreme Court has

ruled that regular appointment is relevant for computation of seniority and that on

publication of new and valid seniority list, the old list stands superseded. Though the

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citation is relied on for the purpose of "limitation", the case does not exactly deal with

limitation. It appears to be the contention of the learned Counsel that it is

implicit since it has been considered in the same that until publication of a new and

valid seniority list, the old seniority list does not cease to operate. In the present case,

seniority list has been finalized on 1.7.1996 and it is sought to be disputed long

thereafter in 1999 and subsequently in original application. We do not think it

appropriate to deal with the issue of limitation for it has been rendered of little

significance in the present case.

81.

In the citation A.K. Subraman & ors. vs. Union of India and ors.

Reported in AIR 1975 SC 483, on the second point of "consideration of temporary post

for applying quota rule", ratio appears to be that in the cases of appointments in

accordance with rules, seniority of such appointees in service will be from the date of

their initial officiating appointment, provided the same is within their quota and that the

quota rule would be enforced at the time of initial recruitment in officiating capacity

and would be applicable irrespective of permanent or temporary post. The ratio
laid

down by
the Supreme Court is in respect of Central Engineering Service Class I

Recruitment Rules, 1954 which did not confine to promotee vacancies and/or specific

number of posts. Similar does not appear to be the position in the present case which is

governed MDS Rules.

82. Another case relied on by learned Counsel for the respondents-applicants is
D.

Ganesh Rao Patnaik and others vs. State of Jharkhand and others
, 2005 AIR SCW

5199, wherein the Apex Court has considered provisions of Bihar Superior Judicial

Service Rules 1946, and particularly rule 6 thereof. The Supreme Court has ruled that

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since the 'cadre' does not exclude consideration of temporary post, it would mean entire

cadre without exclusion of temporary posts and in such a case, temporary and permanent

posts would be taken into account and a promotee filling a post of direct recruit would

not be able to claim seniority over the direct recruit.

83.
In
Food
Corporation of India vs. Thaneswar Kalita and others
, 1995 AIR

SCW 4659, the judgment proceeds on admitted position that the respondents were

appointed on ad-hoc basis dehors the rules and, as such, it was considered that their

continuance for a long time in promotional post would not be amenable to computation

of seniority. The Supreme Court has disagreed with the directions of the High Court to

treat entire service of the respondents therein to be on regular basis.

84. In yet another case, State of Maharashtra and anr. vs. Sanjay Thakre and

ors. reported in 1995 Supp (2) SCC 407
, the Supreme Court dismissed the appeal filed

by the State as well as the promotees which dealt with the similar situation as in the

previous citation and the Supreme Court ruled that any ad-hoc appointment or

promotion dehors the rules would not be taken into account for computation of

seniority. The Supreme Court observed, "The State having made the rules, should

implement them in letter and spirit; any justification for dereliction in implementation

should not be countenanced; it should really be snubbed".

85. The next citation relied on by the respondents is
M.S.L. Patil vs. State of

Maharashtra
, (1996) 11 SCC 361 which holds the same way as earlier citation that the

persons promoted in excess of their quota are not entitled to count their length of service

as promotees for the purpose of seniority and the same would be counted from the date

of availability of their quota. These observations were with reference to the

Maharashtra Civil Services (Regulation of Seniority) Rules, 1982. The Supreme Court

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further stated that the general principle of law
laid down by
it is applicable to every

person including those who were not a party to that order.

86. The other citation
Madan Gopal Garg vs. State of Punjab and ors
, 1996 AIR

SCW 603, is in respect of Pubjab Good & Supplies Department (State Service Class II)

Rules 1966. The Supreme Court while dealing with the promotion of the appellant from

the post of Deputy Director to Controller involving 'inter se' seniority between direct

recruit and promotee and held that a promotee cannot be given seniority over direct

recruit on the basis only of his prior appointment.

87.

In
Maharashtra Vikrikar Karmachari Sangathana v. State of Maharashtra

and anr. 2000 AIR SCW 138, the seniority list as confirmed under the order of the court

pursuant to litigation before the Tribunal, had been held to have been barred by

constructive res-judicata and list of seniority prepared in violation of quota rule had not

been approved irrespective of promotees remaining in office for seventeen years,

ignoring date of selection of the appellant. Ratio has been with reference to

Maharashtra Sales Tax Inspectors Recruitment Rules, 1971, finding that the State of

Maharashtra had taken a definite stand that promotions in excess of quota were

temporary, ad hoc and as a stop gap arrangement without reckoning the period of

officiation by promotees for the purpose of fixing seniority.

88. The next citation relied on by respondents-applicants is
R.K. Mobisana Singh vs.

Kh. Temba Singh
and ors. 2008 AIR SCW 127 which lays down that retrospective

regularization of ad-hoc appointees would confer other benefits to them, but same cannot

be of any assistance in reckoning seniority with retrospective effect and on facts, it was

held that since in some cases relevant procedure was not followed, question of their

acquiring seniority over direct recruits does not arise.

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89.
In yet another case, High Court of Judicature for
Rajasthan vs. Veena Verma

and anr. 2009 AIR SCW 4685, the Supreme Court was dealing with altogether different

set of facts. In the cited case, a mandate was sought which according to the original

petitioner, was as per rules. The petitioner being 8th in the selected candidates and

according to her as per rules vacancies for direct recruits being 10 and not 7, a mandate

was sought for new appointment. Learned Single Judge had dismissed the writ petition,

but the Division Bench had set aside the learned Single Judge's said order and directed

the High Court to determine the number of vacancies and if the vacancies were more

than seven, then consider petitioner Veena Verma for the post in Rajasthan Higher

Judicial Service. The Supreme Court set aside the order of the Division Bench of

Rajasthan High Court and restored the one passed by the learned Single Judge.

90. We quite see that in the present controversy, the MDS Rules, 1973 shall be at the

core and would play a pivotal role for decision in the matter. From the MDS Rules,1973

and amendments thereto from time to time as have been placed on record, it emerges

that the nomination channel for appointment to MDS Class-I cadre had been introduced

by amendments to the rule. It would be appropriate to reproduce the relevant rules

herein below:

THE MAHARASHTRA DEVELOPMENT SERVICE (CONSTITUTION,
CLASSIFICATION AND RECRUITMENT) RULES, 1973

Rule 3. Constitution of Maharashtra Development Service : (1) for the

purpose of bringing about a more efficient discharge of the Administrative

and executive functions and duties devolved on the Zilla Parishads by or

under the Act, the State Government may, by notification in the Official

Gazette, constitute, in respect of all Zilla Parishds with effect from a date

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to be specified therein, a Maharashtra Development Service (hereinafter

referred to as "the Development Service").

(2) The Development Service,shall consist of the following classes, namely,

(a) Maharashtra Development Service Class-I (Super-time scale)

(b) Maharashtra Development Service Class -I

(c) Maharashtra Development Service Class -II

(3). The Maharashtra Development Service Class-I (Super-time Scale), shall

consist of such number of posts of Chief Executive Officers of Zilla Parishads

and from such date as the State Government may with the approval of the

Government of India by order in the Official Gazette determine.

(4) The Maharashtra Development Service, Class I, shall consists of-

(a) 25 posts of Deputy Chief Executive Officers of Zilla Parishads,

(b) 25 posts of Administrative Officers of Zilla Parishads.

(c) 25 posts of Planning Officers of Zilla Parishads.

(d) 31 posts of Block Development Officers (Higher Grade) of Zilla

Parishads.

(5) The Maharashtra Development Service, Class II, shall consist of -

(a) 265 posts of Block Development Officers (Lower Grade) of Zilla
Parishads,

(b) 25 Posts of Revenue Officers of Zilla Parishads.

(6) The State Government may, if it considers it expedient so to do, by
order in the official Gazette, either increase or reduce the number of

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posts or redesignate the posts in any Class of the Development Service
referred to in sub-rule (3), (4) or (5).

(4) Appointment in Maharashtra Development Service, Class-I (Super

time scale)-

(1) Appointment to the posts in the Maharashtra Development Service

Class I (Super time Scale), shall be made either-

(a) by promotion of officers who have completed not less than ten years of
service in posts included in the Maharashtra Development Service, Class I

or

(b) by temporary transfer of Officers from the Indian Administrative
Service or of Officers from the Maharashtra Civil Service who are included
in the select list of Officers fit for appointment to posts in the Indian

Administrative Service.

(2) No Officer shall be appointed substantively to a post in this service,

unless he has officiated in that service for not less than two years.

(3) Every Officer appointed under sub-rule (1) of this rule shall pass
examinations in Hindi and Marathi according to the rules prescribed in
that behalf unless he has already passed, or is exempt from passing such

examination or examinations.

(5) Appointment in Maharashtra Development Service Class-I .
Appointment to the posts in the Maharashtra Development Service Class I

shall be made either-

(a) by promotion from amongst members of the Maharashtra
Development service, Class II or

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(b) by temporary transfer of Officers from the Class I service of the State
or the General State Service or Officers of the All India Services holding

comparable posts under the State Government:

Provided that, no member of the Maharashtra Development Service, Class
II, shall be eligible for promotion, unless he holds a degree in Arts,
Science, Agriculture, Veterinary Science, Commerce, Law or Engineering

of a University duly established by law for the time being in force
(hereinafter referred to as "the recognized University") or any
qualification which the State Government may, by order duly recognize as
a qualification equivalent to any of the degrees aforesaid (hereinafter

referred to as "the equivalent qualification"), and has to his credit a

continuous service of not less than seven years (including the period of
probation) in the Maharashtra Development Service, Class II.

(7) Absorption of certain Officers in Development Service etc -

(1) Notwithstanding anything contained in these rules, with effect from
the date of constitution of the Development service, the State Government

may, subject to the provisions of this rule, absorb in the appropriate Class

I or Class II cadres of that service, any of the officers of the following
categories, namely-

(a) Officers borne on cadres or posts in any other Class I or Class II service

of the State Government, or the General State Service, who on the date of
constitution of the Development service hold posts included in the
Development Service, or who had previously held posts included in that
service and who have exercised, in such manner as the State Government

may direct in this behalf, an option to be so absorbed,

(b) Officers who on the date of constitution of the Development Service,
hold posts included in that service but who are not borne on cadres or

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posts in any other Class I or Class II service of the State Government or
the General State service.

(2) Not more than 25 per cent of the posts in the Development

Service, Class I or Class II shall be reserved for absorption of officers
referred to in clause (a) of sub-rule (1) of this rule. The number of posts
available in a cadre for absorption of such officers from any of such other

State service or General State Service shall as far as possible bear the
same ratio to the total number of posts earmarked in the cadre for such
absorption as the number of officers from that service, who hold such
posts under the Zilla Parishads on the date preceding the date of

constitution of the new Service, bears to the total number of Officers from

all such other services who hold such posts under the Zilla Parishads on
that date.

(3) Absorption of Officers under sub-rule (1) of this rule shall be made in
consultation with the Maharashtra Public Service Commission, regard
being had to their suitability for appointment in Class I or Class II as the

case may be, of the Development Service, and in the case of absorption of
Officers referred to in clause (a) of sub-rule (1) of this rule, regard shall

be had also to the exigencies of service in the respective Departments to
which they belong.

THE MAHARASHTRA DEVELOPMENT SERVICE (CONSTITUTION,
CLASSIFICATION AND RECRUITMENT) (AMENDMENT) RULES , 1979

Rule 5 of the Maharashtra Development Service (Constitution, Classification and

Recruitment) (Amendment) Rules 1979 reads :

"5. Appointment in Maharashtra Development Service Class I .-

(1) Appointment to the posts in the Maharashtra Development Service, Class I,
shall be made either-

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(a) by nomination on the result of a competitive examination held by the
Commission in accordance with rules relating to the competitive examination for

recruitment to the posts of Deputy Collectors

Provided that, appointment by nomination shall be made with effect from

the 1st April 1979 or thereafter in such phased manner as would ensure that the
total number of officers directly recruited in Maharashtra Development Service
Class I, shall not at any time after the 1st April 1982, be less than 35 percent and
more than 50 percent of the total number of permanent posts in that cadre; or

(b) on and after the 15th August 1973 by promotion of suitable officers with not
less than five years of continuous service (including period of probation) in the
Maharashtra Development Service, Class II, or

(c) by temporary transfer of officers from the Class I service of the State Service or

of the All India Services holding comparable posts under the State Government.

Explanation:-. For purposes of clause (b), the past continuous service rendered by
officers, who have been duly absorbed in Maharashtra Development Service Class
II, under rule 7 of these rules, in posts now included in the Maharashtra
Development Service, Class II or in any of the posts specified in the Annexure to

these rules which in the opinion of the State Government involve duties and
responsibilities comparable in importance to those of the posts in that service,
shall be computed. "

THE MAHARASHTRA DEVELOPMENT SERVICE (CONSTITUTION,

CLASSIFICATION AND RECRUITMENT) (AMENDMENT) RULES, 1984

(3) Constitution of Maharashtra Development Service : (1) for the
purpose of bringing about a more efficient discharge of the Administrative
and executive functions and duties devolved on the Zilla Parishads by or

under the Act, the State Government may, by notification in the Official
Gazette, constitute, in respect of all Zilla Parishds with effect from a date
to be specified therein, a Maharashtra Development Service.

(2) The Development Service shall consist of the following classes, namely

(a) **

(b) Maharashtra Development Service Class -I

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(c) Maharashtra Development Service Class -II

(3) **

(4) The Maharashtra Development Service, Class I, shall consists of-

(a) 25 posts of [Deputy Chief Executive Officers (General)] of

Zilla Parishads,

(b) 25 posts of [Deputy Chief Executive Officers(Village
Panchayatl)] of Zilla Parishads,

(c) 25 posts of Planning Officers of Zilla Parishads.

(d) 31 posts of Block Development Officers (Higher Grade) of

Zilla Parishads.

(5) The Maharashtra Development Service. Class II shall consist of-

(a) 265 posts of Block Development Officers (Lower Grade) of Zilla

Parishads,

(b) 25 Posts of Revenue Officers of Zilla Parishads.

[(6) The State Government may, if it considers it expedient so to do, by
order in the official Gazette, either increase or decrease the number of
posts or redesignate or include more categories of post in or exclude any
categories of posts from, any class of the Development Service referred to

in sub-rules (4) and (5)].

4. * * *

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(5) Appointment in Maharashtra Development Service Class-I
(1) Appointment to the posts in the Maharashtra Development

Service, Class I, shall be made either-

(a) by nomination on the result of a competitive examination held
by the Commission in accordance with rules relating to the
competitive examination for recruitment to the posts of Deputy

Collectors;

Provided that, appointment by nomination shall be made with
effect from the 1st April 1979 or thereafter in such phased manner

as would ensure that the total number of officers directly recruited
in Maharashtra Development Service, Class I, shall not at any time

after the 1st April 1982, be less than 35 percent and more than 50
per cent of the total number of permanent posts in that cadre; or

(b) on and after the 15th August 1973 by promotion of
suitable officers with not less than five years of continuous service
(including period of probation) in the Maharashtra Development

Service, Class II; or

[(bb) by promotion of suitable officers with not less than three
years continuous service (including the period of probation ) in the
Maharashtra Development Service Class II]

© by temporary transfer of officers from the Class I service of the
State or of the General State Service or of Officers of the All India
Services holding comparable posts under the State Government.

Explanation : for purposes of clause (b), the past continuous service
rendered by officers who have been duly absorbed in Maharashtra
Development Service, Class II under rule 7 of these rules, in posts now
included in the Maharashtra Development Service, Class II or in any of the

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posts specified in the Annexure to these rules which in the opinion of the
state Government involve duties and responsibilities comparable in

importance to those of the posts in that service shall be computed.

(2) Appointment by nomination shall be made from amongst candidates
who-

(a) have attained the age of 19 years and have not attained the
age of 26 years on the date specified by the Commission at the time of
inviting applications for admission to the examination referred to in clause

(a) of sub rule (1).

[(b) holds a degree of a statutory University or a qualification

recognized by the Government of Maharashtra as equivalent thereto].

© possess sufficient knowledge of Marathi to enable him to read,

write and speak the language with facility.

(3) A candidate appointed by nomination shall be on probation for a

period of two years which shall be regulate according to the rules made in
this behalf. During the period of probation, he shall undergo such training

as may be prescribed by Government in that behalf

(4) A candidate appointed by nomination shall be required to pass the

Departmental Examination and Examinations in Hindi and Marathi
according to the rules prescribed in this behalf, unless he has already
passed or is exempted from passing such examinations.

(5) Appointment by promotion shall be made from amongst suitable
persons holding posts in the Maharashtra Development Service, Class II,
who have passed the Secondary School Certificate Examination or any
examination recognized by the Government as equivalent thereto and the

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qualifying written examination or such other test as the Government may,
in consultation with the Commission, prescribe,

Provided that until a qualifying written examination or test is prescribed,

appointment by promotion may be made provisionally subject to such
conditions as the Government may direct.

(6) It shall be competent for the Government to review cases of all
officers who have been promoted provisionally or temporarily to the posts
in the Maharashtra Development Service, Class I, in accordance with
these rules, and to discontinue, in the light of such review, such

promotions as are repugnant either to the foregoing provisions of this rule
or to any general directive or order of the Government in the matter of

promotion of members of the Backward Classes.]

91. It cannot be ignored that MDS class I cadre is a creature of MDS Rules, 1973 and

the rules create specific number of MDS Class I cadre posts under sub rule 4 of Rule 3

and Rule 5 provides for recruitment to the same by nomination and promotion and also

provides for interse proportion thereof and mechanism to bring about change in number

of posts is referred to under sub rule 6 of Rule 3.

92. While it is nobody's case that there had occurred change to number of MDS Class I

posts contained in the MDS Rules, 1973, it is also not the case of rival parties that the

State Government by order in official Gazette has altered the number of MDS Class-I

posts.

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93. The stand of the State Government in matter that quota of direct recruits being

fulfilled cannot be lightly discarded and carries lot of credibility. Upon perusal of of rule

that MDS Class-l comprised of 106 posts and with induction of applicants' batch of 40 the

quota of direct recruits had been fulfilled. The applicants could not repel this position by

convincingly dealing with the same with facts and figures though they tried to wrangle

over it contending that the posts of project, programme, planning, regional nutrition,

child development officers form part of MDS Class-I cadre and contending that cadre

consists of much larger number. However, it will have to be observed that said contention

is devoid of substance as said posts were never included MDS Class-l cadre by adopting

the process referred to in sub-rule (6) of Rule 3 of MDS Rules, 1973 nor those were

considered to form part of the same by the State Government at any point of time. Said

posts cannot be said to acquire that status under prolonged continuance unless and until

the same is recognized and conferred by employing mechanism provided for bringing

about the same as stipulated in the MDS Rules, 1973. Inclusion of said posts in MDS

Class-l cadre is possible only through the mode of notification by the State Government in

the official gazette not otherwise. The State Government has never accepted said posts as

MDS Class-l cadre posts and have in no uncertain terms denied such claims time and

again, repeatedly, in pleadings and on affidavits before the Tribunal and even by

challenging the orders of Tribunal wherein directions are issued to consider those as such

for quota and seniority. It has also to be considered that attributes of permanency of said

posts or acquisition of permanent status by itself would not clothe the posts with the

status of MDS Class-l cadre and would not be of any significance for birth in the said

cadre and does not at all cause conversion to MDS Class-l cadre.

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94. Perusal of the judgment and order of the Tribunal would reveal that the directions

as given by the Tribunal are in total conflict with the rules governing the field. The

Tribunal by the impugned order has purported to 're-enact' the rules under the garb of

placing interpretation which, in our considered view, is not permissible in law.

95. The Government had very specifically stated that the ratio of direct recruits had

been as per the quota rules and further that proportion of appointments of direct recruits

has been in excess till 1990 specifically referring to figures of posts available in cadre

and number of direct recruits in the same. Though applicants have tried to dispute the

same, the situation cannot be ignored that there has been no increase or decrease in

number of MDS Class-I cadre posts when the applicants were appointed. The applicants

want to consider other posts to form MDS Class-l cadre which under law is not possible,

without following the procedure contained in the MDS Rules, 1973.

96. There has been no declaration about there being any alteration, increasing or

reducing number of MDS class-l cadre posts, as required under sub-rule 6 of Rule 3 of

MDS Rules, 1973. Said MDS Rules of 1973 underwent various amendments from time

to time, without alteration of the number of MDS Class-I cadre posts. The number of

MDS Class-l cadre posts has not been touched by the amendments which have been

placed on record by the authorities. Said position has not been disputed by applicants.

The posts which the Tribunal has referred to as having attributes of permanency appear

to be from pools out side MDS Class-I cadre. It appears that the creation of said posts had

been with a specific purpose for implementation of schemes/programmes/projects under

directions and orders of the Central/State Governments.

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97. There had been no amalgamation of said posts with those in the MDS Class-I cadre

at any point of time by following the procedure as prescribed and required under sub-

rule 6 of rule 3 of MDS Rules of 1973. In absence of any such action by the Government

for amendment or alteration to number of posts under the rules by amalgamation, the

directions given by the Tribunal rewriting the rules are grossly ill-conceived. So long as

the procedure for increase or decrease in number of Class-I cadre posts is not followed by

State, such directions by the Tribunal would not be tenable.

98. Government Decision dated 07-03-1996 pressed into service by applicants has little

efficacy in the present controversy and hardly has any application to the situation. The

Government decision has been issued for application and maintenance of quota system

where there are no rules, governing recruitments in government services. Perusal of the

same would show that the stipulations thereunder would hold good wherever there are

no provisions for quota system in the rules. Further, it provides for regular revisions and

the conversion of temporary posts over three years into permanent, with the concurrence

of finance department with view to facilitate maintaining proportion of quota. It also

makes clear that the said Government decision would be applicable prospectively from

01-04-1996. In the present matter, no case has even been pleaded about conversion of

posts, into permanent ones, taking place with the concurrence of finance department. It

has also to be taken into account that application of said Government decision to the

posts which the applicants want to be considered to be of MDS Class-I cadre has not been

accepted by the respondent authorities. Having regard to aforesaid, it will have to be

considered that Government Resolution hardly has any significance in present

controversy and that apart the same would not cover the period before

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01-04-1996. As such, the directions with reference to the same issued by Tribunal in

respect of period prior to 1996 would not be sustainable. The Tribunal has not dealt with

said aspect of Government Resolution and altogether disregarded that it was operative

from 01-04-1996.

99. It appears that without there being concrete material on record the Tribunal has

inferred that there are lot of accounting errors in identifying permanent posts and that

the respondents have proved that there were adequate slots available for direct recruits.

100. The position that clearly emerges is that pursuant to the rules and the position as

stated in the affidavits in reply, the number of posts in MDS Class I cadre were 95 in

1988-89 comprising 54 permanent and 44 temporarily sanctioned. With the

appointment of batch of 40 persons including the respondents-applicants, in 1990,

position was that 71 posts were occupied and held by direct recruits. In fact, the

authority had categorically submitted with figures indicating as stated by the

respondents, the quota of appointments of the direct recruits had been fulfilled. The

respondents-applicants had in clear terms expressed their inability to furnish

proper/exact figures of the posts available for direct recruits in MDS Class I cadre. They

were not in a position to discard the submission that the posts viz. Project Director

(DRDA), Programme Officer, DPAP, Planning Officer, Regional Nutrition Officers and

Child Development Officers which they have contended to form part of MDS Class I

cadre, were not included in MDS Class I cadre or for that matter, there has been any

government resolution in that respect. The respondents-applicants want that these posts

should be deemed to be included in MDS Class I cadre in the absence of any notification

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which, according to them, have attributes of permanent posts pursuant to the order of the

Tribunal dated 22.11.2002

101. In our considered view, the Tribunal has been in error in putting in a long arm,

especially in the absence of any concrete material before it. The authorities which have

been relied on by the respondents-applicants are of little help to them, having regard to

the fact that the situation is occupied and governed by specific rules holding the field

of operation and the respondents-applicants have to abide by the same from

inception with their appointments. Quota rules and absence of observance of the same

have been much harped about. However, the respondents-applicants have not been able

to show as to how quota rule has not been followed, especially when they are not in a

position to say that the posts which they want to be part of MDS Class I cadre had ever

been amalgamated with MDS Class-I cadre by a notification under a government gazette

as required by sub-rule 6 of Rule 3 of MDS Rules, 1973. The decision rendered by the

Tribunal is on hypothetical basis, without any concrete material in support thereof, is

based on assumptions and presumptions and surmises and conjectures. In our view, the

Tribunal has grossly misdirected itself in allowing the Original Applications.

102. It is incomprehensible that the Tribunal assumes role of legislature and purports

to legislate which the rules did not intend. There is no room for 'casus omissus' as the

intention under the rules has been clear and unambiguous, to have variable ratio in

appointments of direct recruits viz; 35 to 50 per cent.

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103. It is obvious that so long as there is no addition or reduction to MDS Class I posts

referred to under sub rule (4) of Rule 3 of other posts over and above said MDS Class I

cadre posts, such posts would not automatically form part of that cadre. It is apparent

that unless and until the posts which the applicants wanted to form part of MDS cadre

are actually included in that cadre by increasing number of posts of MDS Class I cadre by

following procedure under sub-rule (6), the contention of the applicants would not hold

water and would not be justified. There has been serious and gross error in rendering

decision and issuing directions without reference to sub-rule (6) of Rule 3 and in being

oblivious about the existence of the same. The discussion by the Tribunal, therefore, has

to be considered as strayed one. Perusal of impugned order indicates that the Tribunal

has practically rewritten the rules. The other considerations which have weighed with

the Tribunal have little relevance so far as posts in MDS Class I cadre are concerned.

104. Perusal of sub-rule (6) of rule 3 would reveal that the State Government has been

empowered either to increase or decrease the number of posts or to designate or include

more categories of posts or exclude any category of post in the cadre. However, it is

nobody's case that by exercise of such power vested in it, the State Government has, at

any point of time, increased the number of posts in MDS Class-I cadre. It is, thus, clear

that the directions given by the learned Tribunal are totally contrary to the statutory rules.

105. The Tribunal has been absolutely in error in placing an interpretation on the

proviso to rule 5 the way in which it has been placed in the judgment and order on

22.11.2002. The same amounts to virtually rewriting text of the rule, particularly in

absence of such intent reflected, submitted or advanced. Expansion of dispute beyond

the scope of MDS Rules, 1973 is grossly misplaced. Wording in proviso to rule 5 does

not in any way suggest or give allowance to interpretation as has been placed and in the

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process, proviso had been re-written by the Tribunal. The proviso to rule 5 of MDS

Rules, 1973 on reading, plainly reveals that intention under the same is to have flexibility

in the appointments to MDS Class-I cadre, taking pragmatic view of the situations those

arise in making appointments. However, at the same time, the range within which

flexibility is available has been specifically provided for. Having regard to this, it appears

that the Tribunal has been influenced by considerations which are extraneous to the

MDS Rules, 1973.

106. Posts which the Tribunal required the Government to consider having attributes

of permanency and to be reckoned for MDS Class-I cadre, is without taking into account

the provisions of the statutory rules. The Tribunal's directions and orders in such a

scenario would be wholly misconceived.

107. The force of contention of the applicants that the appointments of the petitioners

herein have been by way of stop gap arrangement and have not been regularized is

watered down as it can be borne out from the applicants' pleading that the respondents'

promotion have approval of Departmental Promotion Committee which is the proper

channel. There appears to be no dispute about such assertions of the respondent-

authorities. It would further be required to be taken into consideration that it has

emerged that there is no change in the number of posts in Class I cadre under the MDS

Rules, 1973 and there appears to be no dispute about figure of appointments of direct

recruits in MDS cadre. As such, the appointments of promotees cannot be said to

impinge on the quota of direct recruits in MDS Class I cadre. Having regard to the

position that the quota rule has been followed and proper quota of direct

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recruits finds place in the number of posts in MDS Class I cadre according to the rules,

the authorities referred to and relied upon on behalf of the applicants have little role in

the present controversy.

108. When the field is governed and occupied by specific rules, as in present case like

MDS Rules 1973 which have been clear and unambiguous, there had been no room to

place an interpretation on the same than its plain words. The Tribunal as such has erred

in going beyond the spirit and letter of the proviso to clause (a) of sub rule (1) of Rule 5.

109. Though rival arguments have been advanced before us by petitioners so also by

the respondents that the original application was beyond limitation and per contra that it

is within limitation, we do not find it necessary to go into that aspect of the matter. The

learned Tribunal after hearing the parties has decided the matter on merits. We have

also considered the matter on merits and, as such, it would not be appropriate at this

stage to go into that issue.

110. In our considered view, therefore, the Tribunal has wholly misconceived the

scope of the matter before it had been in error all over. The impugned order cannot be

justified with the aid of material on record. The Tribunal, thus, has erred in issuing

impugned directions to prepare fresh seniority list. Looking at the matter in any way,

the impugned order passed by the Tribunal dated 22-11-2002 and the one dated

28-04-2004 are wholly unsustainable and deserve to be quashed and set aside and as its

incident, the impugned seniority list would not be able to stand.

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111. Therefore, the order dated 22-11-2002 of the Tribunal and all other orders

including the orders in contempt petition and in the review applications deserve to be

quashed and set aside.

112. In the result, writ petitions are allowed. The order dated 22.11.2002 passed by

the Maharashtra Administrative Tribunal, Aurangabad Bench, in Original Applications

No. 254 and 256 of 2000 and the subsequent orders dated 28.4.2004 and 21.2.2006 in

Contempt Petition No. 89 of 2003, so also order dated 3.11.2004 in Review Applications

No. 11 and 12 of 2004, are set aside. Consequently, seniority lists prepared by the

Department of Rural Development and Water Conservation of the State Government

dated 21.11.2005 in pursuance of the directions under the aforesaid orders of the

Tribunal, is also set aside.

113. Rule made absolute in aforesaid terms without there being any order as to costs.

114. In view disposal of writ petitions, civil applications are also disposed of.

[ Sunil P. Deshmukh, J.] [ B.R.Gavai, J.]

PND/JTWP-2466.05(2)

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