Bombay High Court

The State Of Maharashtra And Others vs Samiksha Ramakant Chandrakar on 8 August, 2024

Author:
Ravindra V. Ghuge

Bench:
Ravindra V. Ghuge

2024:BHC-AUG:17679-DB

*1* WP DC PROMOTIONS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO.9163 OF 2022

1. Smt. Samiksha D/o Ramakant Chandrakar,
Age: 51 Yrs., Occ: Service as Deputy
Commissioner (EGS),
Divisional Commissioner (Revenue)'s office.
Aurangabad, R/o Plot No. 363,
Sector - E, N-1, CIDCO,
Aurangabad 431 003.
Mobile No. 9822186477.

2. Pandurang Ramrao Kulkarni,
Age: 57 Yrs., Occ: Service as
Deputy Commissioner (Resettlement),
Divisional Commissioner (Revenue)'s
office, Aurangabad,
R/o Plot No. 20, 'Indradhanu',
Opp. Kasliwal Corner, N-2, CIDCO,
Aurangabad 431 003.
Mobile No. 9422208018.
...PETITIONERS

-VERSUS-

1. The State of Maharashtra.
Through the Additional Chief Secretary,
Revenue & Forest Department,
Mantralaya, Mumbai 400 032.

2. The Additional Chief Secretary,
General Administration Department,
Mantralaya, Mumbai 400 032.

3. The Additional Chief Secretary,
Finance Department, Mantralaya,
Mumbai 400 032.
*2* WP DC PROMOTIONS

4. The Principal Secretary,
Law and Judiciary Department,
Mantralaya, Mumbai 400 032.

5. Shri Vijay s/o Shankarrao Deshmukh,
Age: Major, Occ: Service as
Additional Collector, Collectorate, Pune.

6. Shri Trigun S/o Shamrao Kulkarni,
Age: Major, Occ: Service as
Deputy Commissioner (Supply),
Divisional Commissioner (Revenue)'s
Office, Pune Division, Pune.

7. Smt. Rupali d/o Vilas Awale,
Age: Major, Occ: Service as
Additional Collector,
Collectorate, Osmanabad.

8. Smt. Swati d/o Laxmanrao Deshmukh,
Age: Major, Occ: Service as
Deputy Commissioner (Supply),
Divisional Commissioner (Revenue)'s
Office, Nasik Division, Nasik.

9. Shri. Arvind s/o Rameshrao Lokhande,
Age: Major, Occ: Service as
Additional Collector, Collectorate, Latur.

10. Shri. Tushar s/o Eknath Thombre,
Age: Major, Occ: Service as
Additional Collector, Collectorate, Beed.
...RESPONDENTS

WITH
WRIT PETITION NO. 9631 OF 2022

Shri. Vijaysingh Shankarrao Deshmukh
Age: 49 Year Occ: Government Servant
Additional Collector Pune,
*3* WP DC PROMOTIONS

Collector Office at Pune. ...PETITIONER

-Versus-

1. The State of Maharashtra
Through the Principal Secretary
Department of Revenue and Forest

2. The Additional Chief Secretary
General Administration Department
M. S. Mantralay, Mumbai-32

3. The Additional Chief Secretary
Finance Department Mantralay,
Mumbai-32

4. The Principal Secretary
Law and Judiciary Department,
Mantralay, Mumbai

5. Smt. Samiksha D/O Ramakant Chandrakar.
Age-50 years, Occu.: Service as
Deputy Commissioner (EGS)
Divisional Commissioner (Revenue)'s office,
Aurangabad R/o. Plot No. 363,
Sector- E,N-1, CIDCO, Aurangabad 431003.

6. Shri. Pandurang Ramrao Kulkarni.
Age-55 years, Occu,: Service as
Deputy Commissioner (Rehabilitation),
Divisional Commissioner (Revenue)'s
Office, Aurangabad.
R/o Kasliwal Corner, N-2 CIDCO

7. Shri. Trigun S/O Shamrao Kulkarni,
Age: Major, Occu: Service as
Deputy Commissioner (Supply),
Divisional Commissioner (Revenue)'s
office, Pune Division, Pune.

8. Smt. Rupali d/o Vilas Awale,
*4* WP DC PROMOTIONS

Age: Major. Occu.: Service as
Additional Collector, Collectorate,
Osmanabad.

9. Smt. Swati S/O Laxmanrao Deshmukh,
Age- Major, Occ.: Service as
Deputy Deputy Commissioner (Supply),
Divisional Commissioner (Revenue)'s
Office, Nashik Division, Nashik.

10. Shri. Tushar Eknath Thombre
Age: Adult, Occ: Service as
Additional Collector, Collectorate, Beed.
...RESPONDENTS

WITH
WRIT PETITION NO. 9632 OF 2022

Shri Tushar Eknath Thombre,
Age : 45 years, Occ : Government Servant
Additional Collector of Beed,
C/o Collector Office, Nagar Road,
Beed.
...PETITIONER

-VERSUS-

1. The State of Maharashtra
Through the Principal Secretary
Department of Revenue and Forest.

2. The Additional Chief Secretary
General Administration Department
M. S. Mantralay, Mumbai-32

3. Shivaji S/o Tukaram Shinde,
Age-54 years, Occu. Service,
(as Asstt. Commissioner [B.C. Cell]
in O/o Div. Commissioner, Aurangabad,
R/o H No. 13, Om-Akansha Housing,
*5* WP DC PROMOTIONS

Society, Plot No. 36 Parijat Nagar,
Cidco, N-4 Aurangabad.

4. Sunil Vitthalrao Yadav,
Age- 55 years, Occu. -Service,
(as Sub-Divisional Office. Latur),
R/o-"Sinhgad" Govt. Quarter,
Opp. Tahsil Office, Latur.

5. Shri. Arvind S/O Rameshrao Lokhande,
Addl. Collector, Latur,
C/o: Collector office, Latur.

6. Shri. Shankar S/O Ramchandra Barge,
Addl. Collector, Hingoli,
C/O: Collector Office, Hingoli.

7. Shri. Pradeep S/O Pradbhakar Kulkarni,
Residential Deputy Collector, Nanded,
C/o: Collector Office, Nanded.

8. Shri. Pratap S/O Sugreev Kale,
Deputy Election Officer,
C/o: Collector Office, Osmanabad.

9. Shri. Pandurang S/O Shankarrao Kamble,
Sub Divisional Officer, Kandhar,
Tal. Kandhar, Dist. Nanded.
...RESPONDENTS

WITH
WRIT PETITION NO. 12675 OF 2022

K. Suryakrishnamurty,
Aged 53 years, having office
address at: Dy. Secretary,
State Election Commission,
Maharashtra, New Administrative Building,
Mumbai-400032.
*6* WP DC PROMOTIONS

...PETITIONER

-VERSUS-

1. The State of Maharashtra,
Through The Chief Secretary,
Mantralaya, Mumbai 400032

2. The Additional Chief Secretary
(Revenue), Revenue and Forest
Department, Mantralaya,
Mumbai 400032

3. The Additional Chief Secretary
(Services), General Administration
Department, Mantralaya,
Mumbai 400032

4. The Additional Chief Secretary
Finance Department, Mantralaya,
Mumbai 400032
...RESPONDENTS

WITH
WRIT PETITION NO. 11692 OF 2022

1. The State of Maharashtra,
Through the Additional Chief Secretary,
Department of Revenue & Forest Department
Mantralaya, Mumbai- 400 032

2. The Additional Chief Secretary
General Administration Department
Mantralaya, Mumbai-400032.

3. The Additional Chief Secretary
Finance Department
Mantralaya, Mumbai- 400032.

4. The Principal Secretary to Government,
*7* WP DC PROMOTIONS

Law and Judiciary Department,
Mantralaya Mumbai.
...PETITIONERS

-VERSUS-

1. Shivaji S/o Tukaram Shinde,
Age- 54 years, Occu. : Service,
as Asstt. Commissioner [B.C. Cell]
in O/o Div. Commissioner, Aurangabad,
R/o. H.No.13, Om Akanksha Housing,
Society, Plot No. 36, Pariljat Nagar,
Cidco, N-4, Aurangabad.

2. Sunil Vitthalrao Yadav,
Age:-55 years, Occu. : Service,
as Sub-Divisional Officer, Latur,
R/o. "Sinhgad", Govt. Quarter,
Opp. Tahsil Office, Latur.

3. Shri Tushar s/o Eknath Thombre,
Addl. Collector, Beed,
C/o : Collector Office, Nagar Road,
Beed.

4. Shri Arvind/o Rameshrao Lokhande,
Addl. Collector, Latur,
C/o : Collector Office, Latur.

5. Shri Shankar s/o Ramchandra Barge,
Addl. Collector, Hingoli,
C/o: Collector Office, Hingoli.

6. Shri Pradeep s/o Prabhakar Kulkarni,
Residential Deputy Collector, Nanded,
C/o: Collector Office, Nanded.

7. Shri Pratap s/o Sugreev Kale,
Deputy Election Officer,
C/o : Collector Office, Osmanabad.
*8* WP DC PROMOTIONS

8. Shri Pandurang s/o Shankarrao Kamble,
Sub Divisional Officer, Kandhar,
Tal. Kandhar, Dist. Nanded.
...RESPONDENTS

WITH
WRIT PETITION NO. 12699 OF 2022

Nitin Gunaji Mahajan,
Age : 52 years, Working as Additional
Collector, currently working as
Chief Officer, Konkan Housing and
Area Development Board, MHADA,
Bandra (East), Mumbai-400051.
...PETITIONER

-VERSUS-

1. State of Maharashtra,
through Chief Secretary,
Mantralaya, Mumbai-400032.

2. The Additional Chief Secretary
(Revenue), Revenue and Forest
Department, Mantralaya,
Mumbai-400032.

3. The Additional Chief Secretary
(Services), General Administration
Department, Mantralaya,
Mumbai-400032.

4. The Additional Chief Secretary,
Finance Department, Mantralaya,
Mumbai-400032.
...RESPONDENTS
*9* WP DC PROMOTIONS

WITH
WRIT PETITION NO. 11762 OF 2022

1. The State of Maharashtra,
Through the Additional Chief Secretary,
Department of Revenue & Forest Department
Mantralaya, Mumbai- 400 032

2. The Additional Chief Secretary
General Administration Department
Mantralaya, Mumbai-400032.

3. The Additional Chief Secretary
Finance Department
Mantralaya, Mumbai- 400032.

4. The Principal Secretary to Government,
Law and Judiciary Department,
Mantralaya Mumbai.
...PETITIONERS

-VERSUS-

1. Smt. Samiksha D/o Ramakant Chandrakar
Age: 50 Years, Occ: Service
Deputy Commissioner (Revenue) office
Aurangabad, R/at Plot No. 363, Sector-E,
N-1 , CIDCO, Aurangabad 431003.

2. Shri. Pandurang Ramrao Kulkarni
Age: 55 Years, Occ: Service as
Deputy Commissioner (Rehabilitation)
Divisional Commissioner (Revenue) Office
Aurangabad, R/at Plot No.20 Indradhanu
Opp. Kasliwal Corner, N-2 CIDCO,
Aurangabad. 431003.

3. Shri. Vijay Shankarrao Deshmukh,
Age: Major, Occupation; Service
as Additional Collector,
*10* WP DC PROMOTIONS

Collectorate,Pune.

4. Shri. Trigun Shamrao Kulkarni
Age : Major, Occupation; Service as
Deputy Commissioner (Supply)
Divisional Commissioner (Revenue)'s Office,
Pune Division, Pune.

5. Smt. Rupali d/o Vilas Awale
Age: Major, Occupation; Service
as Additional Collector,
Collectorate, Osmanabad.

6. Smt.Swati Laxmanrao Deshmukh,
Age: Major, Occupation Working as
Deputy Commissioner (Supply)
Divisional Commissioner (Revenue)' s Office,
Nashik Division, Nashik.

7. Shri. Arvind Rameshrao Lokhande.
Age: Major, Occupation : Service as
Additional Collector,
Collectorate, Latur.

8. Shri. Tushar Eknath Thombre.
Age: Major, Occupation; Service
as Additional Collector,
Collectorate, Beed.
...RESPONDENTS

...
Shri Atul Rajadhyaksha, Senior Advocate a/w Shri Akhilesh
Dubey, Shri Uttam Dubey, Shri Amit Dubey, Shri Krishna P.
Rodge, Shri Rajuram Kuleriya i/by Law Counsellors, Advocate
for the Petitioners in Writ Petition No.12699/2022.

Shri Akhilesh Dubey, Advocate a/w Shri Jiwan J. Patil, Advocate
for the Petitioners in Writ Petition No.12675/2022.

Shri V.D. Sapkal, Senior Advocate a/w Shri Ujwal S. Patil and
Shri Bhalchandra Shinde, Advocates for the Petitioners in Writ
*11* WP DC PROMOTIONS

Petition Nos.9632/2022 and 9631/2022.

Shri Ajay Deshpande, Shri Swapnil Joshi, Shri Sameer
Kurundkar and Shri Sandip Kulkarni, Advocates for the
Petitioners in Writ Petition No.9163/2022.

Shri Ram S. Apte, Senior Advocate, Special Counsel a/w Shri
S.K. Tambe, AGP, for the Petitioners/ State of Maharashtra in
Writ Petition No.11692/2022 and Writ Petition No.11762/2022.

Shri P.R. Katneshwarkar, Special Counsel a/w Shri S.K. Tambe,
AGP, for the Respondents/ State in Writ Petition Nos.9163/2022,
12699/2022, 12675/2022, 9631/2022 and 9632/2022.

Shri Ashutosh Kumbhakoni, Senior Advocate a/w Shri P.P. More,
Advocate for Respondent Nos.5 and 10 in Writ Petition
No.9163/2022.

Shri Shri Sushant Dixit, Advocate a/w Shri Pandurang Gaikwad,
Advocate for Respondent No.6 in Writ Petition No.9163/2022,
for Respondent No.8 in Writ Petition No.9632/2022 and
Respondent Nos.7 to 9 in Writ Petition No.9631/2022.

Shri V.D. Sapkal, Senior Advocate a/w Shri Bhalchandra Shinde
and Shri Ujwal S. Patil, Advocates for the Respondent Nos.6 to 9
in Writ Petition No.9163/2022, for Respondent Nos.3 to 8 in Writ
Petition No.11692/2022 and for Respondent No.3 in Writ
Petition No.11762/2022.

Shri Avinash S. Deshmukh a/w Shri S.G. Joshi, Advocates for
Respondent Nos.3 and 4 in Writ Petition No.9632/2022 and for
Respondent Nos.1 and 2 in Writ Petition No.11692/2022.
...

(Dates of hearing :- 07.08.2023, 08.08.2023, 09.08.2023,
10.08.2023, 18.08.2023, 23.08.2023, 29.08.2023, 12.09.2023,
27.09.2023, 12.10.2023, 19.10.2023, 03.11.2023, 30.11.2023,
01.12.2023, 06.12.2023, 07.12.2023, 22.12.2023, 16.01.2024,
31.01.2024, 08.02.2024, 02.05.2024, 09.05.2024, 28.06.2024,
05.07.2024 and 12.07.2024)
*12* WP DC PROMOTIONS

CORAM : RAVINDRA V. GHUGE
&
Y. G. KHOBRAGADE, JJ.

Reserved on : 12th July, 2024

Pronounced on : 08th August, 2024

JUDGMENT (Per Ravindra V. Ghuge, J.):
-

1. Rule. Rule made returnable forthwith and heard

finally, with the consent of the parties.

We are reminded of the words of the Hon'ble

Supreme Court in
O.P. Singla and another vs. Union of India

and others
, (1984) 4 SCC 450 :-

"Once again, we are back to the irksome question of inter

se seniority between promotees and direct recruits".

2. In this judgment, for the sake of brevity, the

'Directly Appointed Deputy Collectors' would be referred to as

'DDC' and the 'Promotee Deputy Collectors' would be referred

to as 'PDC'.

3. The two Petitions (Transfer Application Nos.1 and 2
*13* WP DC PROMOTIONS

of 2021) were filed by Shivaji Tukaram Shinde with Sunil

Vitthalrao Yadav and Smt. Samiksha Ramakant Chandrakar with

Pandurang Ramrao Kulkarni. These four Applicants (PDC) had

challenged the final seniority list of the officers in the cadre of

Deputy Collectors for the period 01.01.1999 to 31.12.2003

published by the State vide circular dated 31.12.2020, which was

the impugned seniority list. The grievance of these Applicants

was that they had been wrongly pushed down from Sr.Nos.411

and 413 (provisional seniority list published on 24.09.2009) to

Sr.Nos.599 and 603, respectively, by the impugned final seniority

list published on 31/12/2020. The other two were pushed down

from Sr.Nos.323 and 328 to Sr.Nos.500 and 506, respectively. It

was contended that the State desired to favour the DDC and

hence, the seniority of the PDC was wrongly reckoned with from

the date, other than their date of continuous officiation. For the

sake of brevity, the prayers in Transfer Application Nos.1 and 2

of 2021, are reproduced hereunder :-

"Transfer Application No.1/2021:-

A) Rule may kindly be issued.

B) Rule may kindly be made absolute by quashing
& setting aside the impugned final seniority list
of the cadre of Deputy Collectors dated
31/12/2020 (Annex. H) prepared & published
by Resp. No. 1.

*14* WP DC PROMOTIONS

C) Rule may kindly be made absolute by further

directing the Resp. No. 1 to prepare & publish
a fresh final seniority list of the cadre of Deputy
Collectors perfectly in tune with the provisions
of Rules 4, 10, 12, 13 and 14 of the
"Maharashtra Deputy Collectors (Recruitment,
Fixation of Seniority and Confirmation) Rules,
1977 and on the basis of the provisional
seniority list already prepared & published on
24/09/2009.

D) Pending the admission, hearing and final
disposal of this Writ Petition the effect,
operation and implementation of the impugned
final seniority list of the cadre of Deputy
Collectors dated 31/12/2020 (Annex. H)
prepared & published by Resp. No. 1 may
kindly be stayed and the Resp. No. 1 may kindly
be restrained from effecting any promotions on
the basis of the said list.

E) The cost of this Writ Petition be awarded to the
petitioner.

F) Any other appropriate relief as may be deemed
fit by this Hon'ble Court be granted in favour of
the petitioner.

Transfer Application No.2/2021:-
A) Writ Petition may kindly be allowed.
B) The impugned Final Seniority Lists published
by R-1 vide Circular dated 31.12.2020 at Exh.

'E' may kindly be quashed and set aside, by
directing to prepare the Seniority Lists strictly
in tune with the provisions of Rule 4 read with
Rule 13 and Rule 14 of the Maharashtra
Deputy Collectors (Recruitment, Fixation of
Seniority & Confirmation) Rules, 1977 at Exh.
'B' hereto.

C) Pending hearing and final disposal of this Writ
Petition, execution & implementation of the
impugned Seniority List published by R-1 vide
Circular dated 31.12.2020 at Exh. 'E' may
kindly be stayed by keeping the same in
*15* WP DC PROMOTIONS

abeyance.

D) Respondent No. 1 may kindly be directed not to
effect further promotions on the basis of the
impugned Seniority Lists published vide
Circular dated 31.12.2020 at Exh. 'E'.

E) Any other suitable and equitable relief, to
which the petitioners are entitled to, and this
Hon'ble Court deems fit, may kindly be granted
in their favour."

4. All the Petitioners, including the State of

Maharashtra, expressly canvassed in the open Court that they all

are aggrieved by the impugned Judgment and order dated

26.08.2022, delivered by the Maharashtra Administrative

Tribunal (hereinafter referred to as the Tribunal). However, each

of the Petitioner desired that the impugned judgment should be

partly set aside to the extent it is adverse to him/ her and the

particular portion which is favourable to each of them, should not

be disturbed. We had granted adjournments to the litigating

parties on at least two occasions, to state whether we should

remand the matters to the Tribunal, for fresh consideration.

However, the original Applicants insisted that these Petitions

should be considered on their merits. Shri Kumbhakoni, learned

Senior Advocate submitted that the whole judgment be set aside

and the matters be remanded to the Tribunal and, since no
*16* WP DC PROMOTIONS

interim relief has been granted by this Court, the State be

permitted to proceed with promotions, notwithstanding the

remanded cases before the Tribunal

5. We have recorded the lengthy submissions of the

learned advocates. We could not conduct hearing in these matters

in between 08.02.2024 to 02.05.2024 as one of us (Brother

Justice Khobragade) was not available due to medical reasons.

Lastly, they have addressed us on 05.07.2024 and additional

written notes were tendered on 12.07.2024. It would be apposite

to summarize their submissions, in this judgment.

Submissions of learned Senior Advocate Shri V.D. Sapkal

6. Shri V.D. Sapkal, has extensively canvassed on

behalf of Respondent No.10 in Writ Petition No.9163/2022. The

said Respondent is the Petitioner in Writ Petition No.9632/2022.

According to him, the issue is as regards the dates of seniority for

the purposes of settling the deemed dates of promotion.

7. Both the Petitioners, namely, Smt.Samiksha

Ramakant Chandrakar and Shri Pandurang Ramrao Kulkarni,
*17* WP DC PROMOTIONS

were appointed as Tahasildar on 24.02.1994 and 31.05.1994,

respectively. Both of them assumed office as Tahasildar on the

same day, 02.03.1994. Consequentially, both of them completed

five years as Tahasildar, on 01.03.1999. Both were appointed as

Deputy Collector, on 09.07.1999 and both were then promoted to

the cadre of Additional Collector, from 30.01.2020.

8. Shri Sapkal has tendered a compilation of

documents on behalf of his client, the Petitioner in Writ Petition

No.9632/2022. The document at Sr.No.1 is the order passed by

the State Government, on 09.07.1999, for appointing Tahasildars

on temporary basis in the cadre of the Deputy Collector. The

order clearly indicates that such Tahasildars are being granted

temporary promotion in the cadre of Deputy Collector "Nivval

Tatpurtya Swaroopat Padonnati", (purely on temporary basis).

Petitioner No.1 Smt.Chandrakar is at Sr.No.76 and Petitioner

No.2 Shri Kulkarni is at Sr.No.81. He then points out the

concluding remarks in the said order, viz. 'the said temporary

promotion will be subject to the approval of the Maharashtra

Public Service Commission' (MPSC/Commission). It was

expressly mentioned that they would not be entitled to any
*18* WP DC PROMOTIONS

benefits and the Divisional Commissioners were directed to

apprise such Tahasildars that, 'no requests with regard to such

temporary promotion and in the nature of any changes that may

be sought in their Departments', would be entertained by the

Government. To be more specific, the directions issued are

reproduced as under:-

"संबंधित विभागीय आयुक्तांना विनंती करण्यात येते की, पदोत्रती

अधिकान्यांना त्यांच्या नियुक्तीच्या ठिकाणी रुजू होण्यासाठी सध्य

कार्यभारातून तात्काळ कार्यमुक्त करावे.

संबंधित अधिकान्यांना उपजिल्हाधिकारी पदावर देण्यात आलेली

पदोन्नती ही पूर्ण पणे तात्पुरत्या स्वरूपाची असून शासन व महाराष्ट्र लोकसेवा

आयोगाच्या अंतिम मान्यतेच्या अधीन राहून देण्यात येत आहे या

पदोन्नतीमुळे त्यांना उपजिल्हाधिकारी संवर्गात सेवाजेष्ठता वेतननिश्चिती,

इत्यादीबाबत कोणत्याही प्रकारचे अधिकारी प्रदान होणार नाहीत.

विभागीय आयुक्तांनी पदोन्नत अधिकान्यांना अशीही जाणीव दयावी

की, ही पदोन्नती तात्पुरती असल्या कारणाने विभाग बदलून देण्यासंबंधीच्या

किंवा त्यांच्या प्रत्यक्ष नेमणूका विभाग स्तरावर बदल करण्यासंबंधीच्या

त्यांच्या कोणत्याही विनंतीची शासनाकडू न दखल घेतली जाणार नाही."

9. Shri Sapkal, therefore, contends that none of these

Tahasildars were promoted in consultation of the MPSC and,
*19* WP DC PROMOTIONS

therefore, their temporary promotion would not accrue any right

for regularization from the deemed dates of promotions. Though

this issue relates back to 1999, their seniority altered by the

impugned final seniority list, cannot be faulted.

10. Shri Sapkal then draws our attention to the

Government Order dated 30.01.2020, which is with regard to yet

another temporary promotion granted to these Petitioners. The

said order refers to a decision of the Bombay High Court dated

18.12.2019, delivered in Writ Petition No.11368/2019 (
Ajinkya

Natha Padwal and others vs. State of Maharashtra and

others
) and connected petitions wherein, this Court had ordered

as under:-

"(iii) Needless to mention, it is open for the State
Government to take an independent decision
whether to make promotions on adhoc basis
pending finalization of seniority list."

11. He then draws our attention to the specific words

"Saksham Pradhikarnachya Mannyatene Tadartha Padonnatya

Denyat Yet Aahet". His client, namely, Shri Vijaysinha

Shankarrao Deshmukh is at Sr.No.1, since he is a directly

appointed Deputy Collector (DDC). Smt.Chandrakar is at
*20* WP DC PROMOTIONS

Sr.No.33 and Shri Kulkarni is at Sr.No.38. Both are PDC. At

Sr.No.43, is Shri Tushar Eknath Thombre, who is a directly

appointed Deputy Collector from the 2001 batch and who is the

Petitioner in Writ Petition No.9632/2022.

12. He then draws our attention to clause 4 in the said

Government order dated 30.01.2020, which is reproduced as

under:-

"4. उप जिल्हाधिकारी (निवडश्रेणी) (गट-अ) या संवर्गातील उक्त

अधिकान्यांना अपर जिल्हाधिकारी (गट-अ) या संवर्गात खालील अटी /

शर्तीच्या अधीन राहून तदर्थ पदोन्नत्या देण्यात येत आहेत. :-

(i) पदोन्नतीसाठी पात्र ठरलेल्या उपरोक्त अधिकाऱ्यांना देण्यात

येणाऱ्या अपर जिल्हाधिकारी संवर्गातील ह्या तदर्थ स्वरुपाच्या आहेत.

(ii) संदर्भ क्र. २ येथील नमूद सामान्य प्रशासन विभागाच्या

पत्रान्वये प्राप्त अपर जिल्हाधिकारी पदावरील पदोन्नतीची निवड सूची ही उप

जिल्हाधिकारी संवर्गाची दि.०३.०३.२०१८ ची तात्पुरती ज्येष्ठता सूची

विचारात घेऊन तयार करण्यात आली असल्याने सदर पदोन्नत्या तदर्थ

स्वरुपाच्या राहतील व उप जिल्हाधिकारी या निम्न संवर्गाची ज्येष्ठता सूची

अंतिम झाल्यानंतर होणाऱ्या तद्वदनुषंगिक सेवा जेष्ठतेच्या अधिन राहून सदर

अधिकाऱ्यांच्या पदोन्नत्या नियमित करण्यासंदर्भात आदेश निर्गमित करण्यात

येतील.

*21* WP DC PROMOTIONS

(iii) सदर निवडसूची व तदर्थ पदोन्नती यास महाराष्ट्र लोकसेवा

आयोगाची मान्यता प्राप्त झाल्यानंतरच पदोन्नतीच्या पदावर सेवाज्येष्ठता व

अन्य सेवाविषयक लाभ मिळण्यास पदोन्नत अधिकारी पात्र राहतील.

(iv) सदर सर्व तदर्थ पदोन्नत्या या अपर जिल्हाधिकारी संवर्गाच्या

वित्त विभागाच्या मान्यतेने मंजूर होणाऱ्या सुधारित आकृतीबंध निश्चितीच्या

अधिन राहतील.

(v) प्रतिनियुक्तीवर कार्यरत असलेले ज्येष्ठ अधिकारी यांचे

प्रत्यावर्तन झाल्यानंतर त्यांच्यासाठी अपर जिल्हाधिकारी या संवर्गात पद

रिक्त नसल्यास या आदेशातील कनिष्ठतम अधिकान्यांना पदावनत

करण्याच्या अधीन राहून सदर तदर्थ पदोन्नती देण्यात येत आहे.

(vi) मा. सर्वोच्च न्यायालयात प्रलंबित असलेल्या विशेष अनुमती याचिका क्र.

२८३०६/२०१७ मध्ये होणाऱ्या अंतिम निर्णयाच्या अधिन राहून, मा. उच्च

न्यायालय, मुंबई यांनी रिट याचिका क्र. ११३६८/२०१९ व इतर

याचिकांमध्ये दि. १८ डिसेंबर, २०१९ रोजी दिलेल्या निर्णयानुसार तसेच

सामान्य प्रशासन विभागाने दि. २९ डिसेंबर २०१७ च्या पत्रान्वये दिलेल्या

मार्गदर्शनपर सूचनांनुसार सदरहू तदर्थ पदोन्नत्या देण्यात येत आहेत."

He, therefore, submits that unless the State of

Maharashtra acquires the approval of the Commission, there

cannot be confirmation of an employee on the said promotional

post.

*22* WP DC PROMOTIONS

13. He, then draws our attention to the Government

circular, dated 03.03.2018 by which a provisional seniority list

was declared by the State Government. This was challenged

before the Principal Seat in Writ Petition No.11368/2019

(
Ajinkya Natha Padwal and others vs. State of Maharashtra

and others
) and connected matters. The Division Bench of this

Court delivered a Judgment on 18.12.2019, more specifically,

paragraph Nos.11 to 18, as under:-

"11. During the pendency of the O.A. No.916 of
2016, pursuant to the order dated 25.07.2017
in Miscellaneous Application No.292 of 2017
filed by the State Government, the Tribunal
allowed the State Government to effect
promotions in the cadre of Additional Collector
(Selection Grade) subject to the outcome of the
O.A. based on provisional seniority list then in
existence. The Tribunal passed the order
directing the State Government that the final
proclamation of the seniority list should not be
made without express leave of the Tribunal.

12. On 03.10.2017 the State Government effected
promotions to the posts of Deputy Collector
(Selection Grade) and Additional Collector on
the basis of the draft final seniority list. Till
03.10.2017 all promotions were made on the
basis of earlier provisional seniority list.

13. The State Government thereafter published a
fresh provisional seniority list of Deputy
Collectors on 03.03.2018 for the period
01.01.1999 to 31.12.2000 and 01.01.2001 to
31.12.2003. It is the contention of the
*23* WP DC PROMOTIONS

promotees that this provisional seniority list of
3.3.2018 had the effect of pushing down the
promotee Deputy Collectors below the Direct
Recruits in the order of seniority. It is
contended by promotees that by publishing the
said list the benefit of seniority to the
promotees from the dates of their actual
promotions is denied and the quota rule in
favour of direct recruits was wrongly applied.

14. The provisional seniority list of 03.03.2018 was
challenged by one promotee-Deputy Collector
by fling O.A. No.308 of 2018. However, O.A.
No.308 of 2018 was disposed of by the Tribunal
on 03.09.2018 as challenge to the provisional
seniority list was premature.

15. On 07.09.2018 one of the promotee (Ajinkya
Natha Padwal - the petitioner No.1 in Writ
Petition No.11368 of 2019) filed M.A. No.468
of 2018 in O.A. No.916 of 2016 seeking interim
order of stay on promotions on the basis of
provisional seniority list dated 03.03.2018. On
14.09.2018 the Tribunal by its order in M.A.
No.468 of 2018 directed the State Government
not to issue any order of ad-hoc promotions
unless the seniority list is finalised without
express leave of the Tribunal.

16. Thereafter, the State Government filed M.A.
No.429 of 2019 seeking leave of the Tribunal to
effect promotions from the cadre of Deputy
Collector to the grade of Deputy Collector
(Selection Grade) purely by way of temporary
arrangement, subject to further orders and on
the terms and conditions that may be imposed
by the Tribunal. By order dated 13.08.2019 the
Tribunal permitted the State Government to
issue ad-hoc promotions to the post of Deputy
Collector (Selection Grade) "for the purpose
stated in the M.A.". Though it is recorded in the
order that the promotees consented to such
order being passed, according to the
promotees, said concession was erroneously
*24* WP DC PROMOTIONS

recorded. It is the contention of the promotees
that the application was made for speaking to
the minutes but the same has not been disposed
of .

17. Thereafter, on 14.08.2019 the State
Government issued promotion orders.

According to the promotees the dates of
promotion of 48 promotee Deputy Collectors in
the Selection Grade were illegally altered. By
second order dated 14.08.2019, 40 Direct
Recruits are granted ad-hoc promotions as
Deputy Collectors (Selection Grade)
retrospectively from various dates beginning
from 31.05.2011.

18. Sometime after 14/8/2019 the Direct Recruits
applied to the Tribunal for withdrawal of O.A.
No.916 of 2016. While allowing the application
for withdrawal by impugned order dated
29/8/2019 the Tribunal recorded that the State
Government had already promoted 48 Officers
from the provisional seniority list published on
03.03.2018 of Deputy Collector (Selection
Grade) by an order dated 14.08.2019. The
Tribunal further permitted the State
Government to promote 57 Officers who are
eligible, suitable and in the zone of
consideration."

14. He submits that after considering the submissions on

behalf of the promotees, which are reproduced in paragraph 20,

the submissions on behalf of the direct recruits (DDC) and the

submissions on behalf of the State Government, were recorded in

paragraph 21 and 22. The conclusions of the Court are found in

paragraphs 23 to 29 and the operative part, which read thus:-

*25* WP DC PROMOTIONS

"23. This is an inter se seniority dispute between
Direct Recruit Deputy Collectors and promotee
Deputy Collectors. The provisional seniority
list was published in 2009 and thereafter in
2014. Ad-hoc promotions were made on the
basis of these provisional seniority lists. The
provisional seniority lists of 2009 and 2014 are
prepared by granting seniority to the promotees
from the date of promotion by taking into
consideration the length of continuous service
in the cadre. Ad-hoc promotions in the grade of
Deputy Collectors and the post of Additional
Collectors also came to be made on the basis of
provisional seniority lists of 2009 and 2014. It
is the grievance of the Direct Recruits that the
provisional seniority lists are not prepared in
accordance with the Rules of 1977. According
to the Direct Recruits, Rules of 1977 provides
for 35% quota for Direct Recruits which is not
adhered to. The promotees were promoted as
against the quota meant for Direct Recruits.
The Direct Recruits contend that the promotees
have misconstrued the decision of the Tribunal
in O.A. No. 526 of 2004 as the Tribunal
nowhere indicates that quota meant for Direct
Recruits should not be followed while
publishing the combined seniority list.

24. The Direct Recruits approached the Tribunal by
fling O.A. No.916 of 2016 for direction that the
seniority list of Deputy Collectors should be
finalised. It is their contention that since 2009
the State Government is only publishing the
provisional seniority list and effecting
promotions on ad-hoc basis. Even during the
pendency of the O.A., the Tribunal granted
leave to the State Government to effect
promotions and/or the State Government
effected promotions on ad-hoc basis as per the
provisional seniority list of 2014.

25. It is when the State Government published the
provisional seniority list on 03.03.2018 that the
*26* WP DC PROMOTIONS

promotees were pushed down in the provisional
seniority list. When the question of further
promotions arose, the Direct Recruits who now
were placed higher in the seniority list of
3/3/2018 are considered by the State
Government for promotion on ad-hoc basis.
Accordingly, 48 Officers were promoted from
the provisional seniority list of 03.03.2018 as
Deputy Collector (Selection Grade) by an order
issued on 14.08.2019. The State Government
also wanted to promote 57 officers from the list
of Deputy Collector (Selection Grade) as
Additional Collector in view of the
administrative exigency purely on temporary
basis. The State Government sought leave of
the Tribunal to issue orders promoting them.
Pending this application of the State
Government, the Direct Recruits made an
application for withdrawing the O.A. In our
opinion, the Tribunal should have simply
permitted the Direct Recruits to withdraw the
O.A. In the O.A. filed by the Direct Recruits
claiming the relief directing the State
Government to prepare the final seniority list,
the Tribunal has committed an error in
permitting the State Government to promote 57
officers as Additional Collectors. The
application made by the State Government
seeking leave to promote 57 officers would not
survive for consideration upon withdrawal of
the O.A. filed by direct recruits.

26. There is no serious challenge by any of the
parties to the direction issued by the Tribunal
to finalise the seniority list. In any case,
learned Senior Counsel Shri Apte has made a
statement that the State Government would
finalise the seniority list by end of January,
2020 after taking into considering the
representations and objections of all
concerned. Learned Senior Counsel Shri Apte
has further clearly indicated that the
*27* WP DC PROMOTIONS

promotions which have been made during
pendency of O.A.916 of 2016 are purely on ad-
hoc basis and the same are subject to final
seniority list. In view of this submission, the
apprehension of the promotees, that Direct
Recruits who are promoted on ad-hoc basis in
terms of the provisional seniority list of 3 rd
March, 2018 would claim equities and assert
their rights on the basis of such ad-hoc
promotions is misplaced and unfounded.

27. It is further submission of learned Senior
Counsel Shri Apte that even if the order of the
Tribunal is sustained, no prejudice will be
caused to any one, as most of the promotees
including the direct recruits who are parties to
these Petitions are likely to get promotions on
adhoc basis. These promotions will obviously
be subject to final seniority list. According to
learned Senior Counsel Shri Apte only some of
the petitioners who are represented by learned
Senior Counsel Shri Setalwad are likely to be
deprived of the benefit of ad-hoc promotion as
they are not in the zone of consideration for
promotion in terms of the provisional seniority
list of 3rd March, 2018.

28. Taking an over all view of the matter, we refrain
from addressing on the larger issue raised by
learned Senior Counsel for the petitioners that
the direct recruits should not be allowed to
continue to take advantage of the interim
orders in their favour once they have
withdrawn the O.A.. Suffice it to observe that
even on the previous occasions, the ad-hoc
promotions were made on the basis of the
provisional seniority list of 2009 and those of
2014 which by and large benefited the
promotees. The provisional seniority list of 3rd
March, 2018 ensures to the benefit of direct
recruits. Even the State Government has taken
a specific stand that the final seniority list
would be published by the end of January,
*28* WP DC PROMOTIONS

2020. In this view of the matter, we do not find
this is to be a ft case to interfere with the ad-
hoc promotions already made on the basis of
the provisional seniority list of 3rd March, 2018
which even according to Shri Apte are purely
on ad-hoc basis subject to final seniority list. It
is therefore clear that the said promotions are
purely on ad-hoc basis subject to the final
seniority list to be prepared by the State
Government by the end of January, 2020.

29. We are however of the opinion that Clause (6)
of the impugned order of the Tribunal which
permits the State Government to promote 57
officers calls for interference. According to us,
on a motion made by the direct recruits for
withdrawal of the O.A., the Tribunal should not
have permitted the State Government to
promote 57 direct recruits, more so, when the
O.A. was at the instance of the direct recruits
essentially for the relief of finalising the
seniority list. On a motion made by the direct
recruits for withdrawal of the O.A., the
question of considering any pending
application and that too of the State
Government was uncalled for. The other reason
why we are inclined to interfere with clause (6)
of the impugned order passed by the Tribunal is
that by issuing this direction the promotees are
deprived of an opportunity to test the
correctness of the ad-hoc promotions if made
by the State Government before the Tribunal.
We therefore quash and set aside Clause (6) of
the impugned order passed by the Tribunal. We
may however hasten to add that considering the
exigency of the administration, it is for the
State Government to independently consider
the question of effecting ad-hoc promotions
pending finalisation of seniority list which will
afford a fair opportunity to the aggrieved to test
the decision before the Tribunal on grounds
legally permissible. Hence the following order.

*29* WP DC PROMOTIONS

ORDER
(i) Clause (6) of the impugned order dated 29th

August, 2019 passed by the Tribunal in O.A.
No. 916 of 2016 and O.A. No. 1099 of 2016 is
quashed and set aside.

(ii) The statement made by learned Senior Counsel
Shri Apte on instructions that the State would
finalise the seniority list by the end of January,
2020 after considering the representations and
objections to the provisional seniority list dated
3rd March, 2018, is accepted.

(iii) Needless to mention, it is open for the State
Government to take an independent decision
whether to make promotions on ad-hoc basis
pending finalisation of seniority list.

(iv) Writ Petitions are partly allowed."

15. He draws our attention to an Original Application

No.763/2003 (
Jotiba Tukaram Patil and others vs. The State

of Maharashtra and others
), preferred by the promotees before

the Maharashtra Administrative Tribunal (Tribunal) wherein, a

judgment was delivered on 09.01.2004, in which, the Tribunal

concluded as under:-

"The respondent No.1 is directed to finalise the
seniority list of Deputy Collectors determining
the inter-se seniority among promotee Deputy
Collectors and directly recruited Deputy
Collectors on the basis of the relevant rules and
the direction given by High Court in W.P. No.
4548 of 1983 and also after deciding the
objections raised by the applicants to the
provisional seniority list within a period of six
months from today. The respondent No.1,
*30* WP DC PROMOTIONS

however, is at liberty to make selection for
promotion on the basis of the provisional
seniority list subject to condition that
promotions given on the basis of such selection
shall be subject to the inter-se gradation in the
final seniority list. O.A. is disposed of
accordingly. No order as to costs."

16. Two Miscellaneous Applications bearing Nos.188

and 215 of 2004 (
The State of Maharashtra vs. J.T. Patil and

others
), were preferred before the Tribunal and the operative part

of the earlier order dated 09.01.2004, was modified by arriving at

the following conclusions in paragraphs 8 to 10:-

"8) We find that the applicants, in their petition,
relied upon the decision in W.P. No. 4548/1983
in order to make a point regarding the date of
seniority in respect of direct recruits to be
counted from the date of then actual taking
over charge. It is true that the judgment passed
in the said W.P. contains direction to prepare
gradation list by determining the seniority of
the promotee Dy. Collectors with effect from the
date of their continuous officiation and in
respect of direct recruits from the date of then
actual taking over charge. But as pointed out
by the learned Chief Presenting Officer the said
direction is applicable only to the seniority list
of the Dy. Collectors recruited against the
vacancies during the period 1972-1975 when
the Maharashtra Dy. Collectors (Recruitment,
Fixation of Seniority and Confirmation) Rules
1977 were not framed. It is not the case of the
original applicants that they were recruited
during that specific period. Hence the principle

laid down in
the judgment passed in the said
*31* WP DC PROMOTIONS

W.P.No. 4548/83 shall not be applicable to
them. The Maharashtra Dy. Collectors
(Recruitment, Fixation of Seniority and
Confirmation) Rules 1977 specifically provide
the manner in which the inter-se seniority
between promotee and direct recruit Dy.

Collectors to be determined. Hence we find that
the reference to the judgment passed in W.P.No.
4548/83 in the operative part of the order
passed by this Tribunal in O.A. No. 763 of 2003
is not relevant as far as determination of
seniority of the original applicants is
concerned. The order dated 9.1.2004 passed by
this Division Bench of the Tribunal in the said
O.A. therefore needs to be modified.

9) By filing M.A.No. 215 of 2004, the applicant
(Original respondent State Govt.) has prayed
for grant of additional six months time for
finalizing the seniority list of Dy. Collectors.
Considering the facts and circumstances,
discussed above in respect of M.A. No. 188 of
2004, we of opinion that the request needs to be
granted.

10) We therefore pass the following order.

ORDER

1. Both these miscellaneous applications are
allowed.

2. The operative part of the order dated 9.1.2004
in O.A. No. 763 of 2003 is modified and shall
read as follows:

"The respondent no. 1 is directed to finalize the
seniority list of Dy. Collectors determining the
inter-se seniority among promotee Dy.
Collectors and direct recruit Dy. Collectors on
the basis of relevant rules and also after
deciding the objections raised by the applicants
to the provisional seniority list within a period
of six months from today. The respondent no. 1,
however is at liberty to make selection for
promotion on the basis of the provisional
seniority list subject to condition that
*32* WP DC PROMOTIONS

promotions given on the basis of such selection
shall be subject to the inter-se gradation in the
final seniority list. O.A. is disposed of
accordingly. No order as to costs".

3. Additional time of six months is granted to the
applicant from today for implementing the
order dated 9.1.2004, passed in O.A. No. 763 of
2003.

4. No order as to costs."

17. The above orders were challenged in Writ Petition

No.7851/2004 (
Jotiba T. Patil and others vs. The State of

Maharashtra and others
), (Civil Appellate Jurisdiction,

Mumbai) and this Court delivered the judgment on 14.06.2018,

wherein, it was concluded in paragraphs 23 to 27 as under:-

"23] In fact, it is quite clear that the judgment of this
court in Writ Petition No. 4548 of 1983 was in
the context of appointees between 1972 to 1975
when there were no statutory rules for
determination of interse seniority. This court,
therefore, applying the principles
laid down in

S.B. Patwardhan (supra) formulated the
principles to be applied in the meantime. After
the 1983 Rules entered into force therefore,
there was no question of once again falling
back upon the principles in Writ Petition No.
4548 of 1983.

24] Significantly, it is not even the case of the
petitioners that they are appointees between
1972 and 1975 or that 1983 Rules do not apply
to the determination of their seniority.
Therefore, we see no merit in the attack on
order dated 23.6.2004 based upon the
restrictive parameters of review jurisdiction or
*33* WP DC PROMOTIONS

even otherwise on merits.

25] As noted earlier, all that the impugned
judgments and orders had directed was the
finalisation of the provisional seniority list in
accordance with law and after taking into
consideration the objections of the petitioners.
Now that the seniority list has already been
finalised and such finalised seniority list is not
under challenge, we see no good ground to
interfere with the impugned judgments and
orders.

26] Since the finalised seniority list is not under
challenge, we are not in a position to know
whether such finalised seniority list is
consistent with the rules as well as the law laid
down by the Hon'ble Supreme Court in the
decisions upon which reliance is placed by
Mr.Rajadhyaksha. Suffice to note that there is
no inconsistency between the directions issued
by the MAT in the impugned judgments and
orders and the decisions upon which reliance is
placed by Mr. Rajadhyaksha. This is because as
noted repeatedly, the impugned judgments and
orders had merely directed the State to finalise
the seniority list in accordance with law and
after taking the petitioners objections.
27] For all the aforesaid reasons, we dismiss this
petition. Rule is discharged. There shall be no
order as to costs."

18. Shri Sapkal, therefore, contends that the seniority of

the directly appointed Deputy Collectors (DDC/ direct

appointees), will be from the dates of their entry in such direct

appointment. Per contra, for the promotees (PDC), it will be from

the dates of their regular promotion and not from the dates when
*34* WP DC PROMOTIONS

they were granted adhoc promotions, since the Maharashtra

Deputy Collector (Recruitment, Fixation of Seniority and

Confirmation) Rules, 1977, framed under
Article 309 (Rules of

1977 or the 1977 Rules)
, were not adhered to. Their promotions

will relate to their dates of actual entry as Deputy Collectors and

not as adhoc Deputy Collectors.

19.
In support of this submission, he relies upon a

judgment delivered by the Honourable Supreme Court, on

28.09.2021, in
Malook Singh and others vs. State of Punjab

and others
, (three Judges Bench), Civil Appeal Nos.6026-

6028/2021, [(2021) 7 SCR 1080 : 2021 SCC Online SC 876] .

He contends that this judgment crystallizes the law that adhoc

service cannot be counted for conferring the benefits of seniority

on such an employee. He specifically draws our attention to the

observation of the Honourable Supreme Court in paragraph

No.20, which reads thus:-

"20. The law on the issue of whether the period of
ad hoc service can be counted for the purpose
of determining seniority has been settled by this
Court in multiple cases. In Direct Recruits
(supra), a Constitution Bench of this Court has
observed:

"13. When the cases were taken up for
*35* WP DC PROMOTIONS

hearing before us, it was faintly suggested that
the principle laid down in Patwardhan case
[(1977) 3 SCC 399: 1977 SCC (L&S) 391:
(1977) 3 SCR 775] was unsound and fit to be
overruled, 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
service 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 the principles of
equality spelt out by
Articles 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 regularization 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
*36* WP DC PROMOTIONS

the rules applicable to substantive
appointments as in the present case. To hold
otherwise will be discriminatory and
arbitrary.....

47. To sum up, we hold that
(A) Once an incumbent is appointed to a post
according to a rule, his seniority has to counted
from the date of appointment and not according
to date of his confirmation. The corollary to 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 considering the seniority."

The decision in Direct Recruits (supra) stands
for the principle that ad hoc service cannot be
counted for determining the seniority if the
initial appointment has been made as a stop
gap arrangement and not according to rules.
The reliance placed by the Single Judge in the
judgement dated 6 December 1991 on Direct
Recruits (supra) to hold that the ad hoc service
should be counted for conferring the benefit of
seniority in the present case is clearly
misplaced.
This principle laid down in Direct
Recruits (supra) was subsequently followed by
this Court in
Keshav Chandra Joshi v. Union of
India
.

Recently a two judge Bench of this Court
in
Rashi Mani Mishra v. State of Uttar Pradesh
,
of which one of us (Justice DY Chandrachud)
was a part, observed that the services rendered
by ad hoc employees prior to their
regularization cannot be counted for the
purpose of seniority while interpreting the
Uttar Pradesh Regularization of Ad Hoc
Appointment Rules. This Court noted that
under the applicable Rules, "substantive
appointment" does not include ad hoc
appointment and thus seniority which has to be
counted from "substantive appointment" would
*37* WP DC PROMOTIONS

not include ad hoc service.
This Court also
clarified that the judgement in Direct Recruits
(supra) cannot be relied upon to confer the
benefit of seniority based on ad hoc service
since it clearly states that ad hoc appointments
made as stop gap arrangements do not render
the ad hoc service eligible for determining
seniority. This Court speaking through Justice
MR Shah made the following observations:

"36. The sum and substance of the above
discussion would be that on a fair reading of
the 1979 Rules, extended from time to time;
initial appointment orders in the year 1985 and
the subsequent order of regularization in the
year 1989 of the ad hoc appointees and on a
fair reading of the relevant Service Rules,
namely Service Rules, 1993 and the Seniority
Rules, 1991, our conclusion would be that the
services rendered by the ad hoc appointees
prior to their regularization as per the 1979
Rules shall not be counted for the purpose of
seniority, vis-à-vis, the direct recruits who were
appointed prior to 1989 and they are not
entitled to seniority from the date of their initial
appointment in the year 1985. The resultant
effect would be that the subsequent re-
determination of the seniority in the year 2016
cannot be sustained which was considering the
services rendered by ad hoc appointees prior to
1989, i.e., from the date of their initial
appointment in 1985. This cannot be sustained
and the same deserves to be quashed and set
aside and the seniority list of 2001 counting the
services rendered by ad hoc appointees from
the date of their regularization in the year 1989
is to be restored.

37. Now so far as the reliance placed
upon the decision of this Court in the case of
Direct Recruit Class II Engg. Officers' Assn.
(supra), relied upon by the learned Senior
Advocate appearing on behalf of the ad hoc
*38* WP DC PROMOTIONS

appointees is concerned, it is required to be
noted that even in the said decision also, it is
observed and held that where initial
appointment was made only ad hoc as a stop
gap arrangement and not according to the
rules, the officiation in such post cannot be
taken into account for considering the seniority.

In the case before this Court, the appointments
were made to a post according to rule but as ad
hoc and subsequently they were confirmed and
to that this Court observed and held that where
appointments made in accordance with the
rules, seniority is to be counted from the date of
such appointment and not from the date of
confirmation. In the present case, it is not the
case of confirmation of the service of ad hoc
appointees in the year 1989. In the year 1989,
their services are regularized after following
due procedure as required under the 1979
Rules and after their names were recommended
by the Selection Committee constituted under
the 1979 Rules. As observed hereinabove, the
appointments in the year 1989 after their
names were recommended by the Selection
Committee constituted as per the 1979 Rules
can be said to be the "substantive
appointments". Therefore, even on facts also,
the decision in the case of Direct Recruit Class
II Engg. Officers' Assn. (supra) shall not be
applicable to the facts of the case on hand. At
the cost of repetition, it is observed that the
decision of this Court in the case of Direct
Recruit Class II Engg. Officers' Assn. (supra)
was considered by this Court in the case of
Santosh Kumar (supra) when this Court
interpreted the very 1979 Rules."

The notification dated 3 May 1977 stated that
the ad hoc appointments were made in
administrative interest in anticipation of
regular appointments and on account of delay
*39* WP DC PROMOTIONS

that takes place in making regular appointment
through the concerned agencies. In this regard,
the vacancies were notified to the Employment
Exchange or advertisements were issued, as the
case maybe, by appointing authorities. The
appointments were not made on the
recommendation of the Punjab Subordinate
Service Selection Board. However,
subsequently a policy decision was made to
regularize the ad hoc appointees since their
ouster after a considerable period of service
would have entailed hardship. Thus, the initial
appointment was supposed to be a stop gap
arrangement, besides being not in accordance
with the rules, and the ad hoc service cannot be
counted for the purpose of seniority."

20. Shri Sapkal has then drawn our attention to Rule

2(b), 2(e), 2(i), 2(n), Rule 4, Rule 5, Rules 8 to 10, Rule 12 and

Rule 13 of the Maharashtra Deputy Collectors (Recruitment,

Fixation of Seniority and Confirmation) Rules, 1977, which are

as under:-

"2. Definitions. In these rules, unless the context
otherwise requires,-

"(b) "Commission" means the Maharashtra Public
Service Commission;"

"(e) "deemed date" has the meaning assigned to it
in rules 7 and 13;"

"(i) "fortuitous service" means that service which is
rendered by a person during the period
commencing on the date of his actual
continuous officiation in a cadre and ending on
the deemed date of continuous officiation in
that cadre (such deemed date being later than
*40* WP DC PROMOTIONS

the date of the actual continuous officiation of
such person in the said cadre);"

"(n) "select list" means the initial list of officers who
are fit to be appointed as Tahsildars or, as the
case may be of Tahsildars who are fit to be
appointed as Deputy Collectors, in the order of
seniority assigned to them in such respective
list (each such list being drawn up by
Government in consultation with the
Commission)."

"4. Mode of recruitment to post of Deputy
Collector.-

(1) Appointment to the post of Deputy Collector
may be made either by nomination in the
manner provided by rule 5 or by promotion of
Tahsildars as provided by rule 10 or by transfer
on deputation of officers holding the posts of
Under Secretary to Government:

Provided that the appointment by nomination
shall be made in such manner as to ensure that
the total number of directly recruited Deputy
Collectors in the cadre of Deputy Collectors
shall not, at any time, be less than 35 per cent,
and not more than 50 per cent of the total
number of permanent posts in that cadre.
(2) For the purpose of complying with the proviso
to sub-rule (1) Government shall determine in
advance the number of nominations to be made
in each year."

"5. Manner of appointment by nomination.-
(1) Appointment by nomination shall be made upon
the result of a competitive examination to be
held by the Commission in accordance with the
rules made by Government in that behalf.
(2) To be eligible for appearing at any such
examination, a candidate,-

(a) shall hold a degree of a statutory University
or a qualification recognised by Government as
equivalent thereto;

*41* WP DC PROMOTIONS

(b) shall have adequate knowledge of Marathi
for the purpose of reading, writing and
speaking fluently, in that language;

(c) shall not be less than 19 years and more
than 28 years) of age on 1st day of April of the
year following the year in which the posts are
advertised by the Commission:"

"8. Preparation of combined seniority list of
Tahsildars:-

(1) In each year, in accordance with the seniority
of all the Tahsildars determined under sub-rule
(6) of rule 7, a combined provisional seniority
list of Tahsildars serving in all the revenue
Divisions in the State (hereinafter referred to as
"the provisional seniority list of Tahsildars")
who have put in continuous service of five years
or more, shall be prepared by Government in
Form I showing their inter-se seniority as on
the 1st day of April of that year.

(2) After the preparation of such seniority list
under sub-rule (1), a copy thereof shall be kept
by Government for inspection in the office of
every Commissioner and of every Collector by
the persons interested therein. Government
shall also issue a press note announcing that
copies of the provisional seniority list of
Tahsildar have been kept for inspection as
aforesaid and calling upon persons concerned
to submit to the Commissioner of the Division
concerned, any objections or suggestions if any,
to such list within a period of sixty days from
the date of the press note.

(3) Every Commissioner shall forward the
suggestions and objections, if any received by
him under sub-rule (2) to Government with his
remarks within fifteen days from the last day of
the period specified in the press note for
submission of objections and suggestions.
(4) Government shall, after considering the
suggestions and objections and the remarks of
*42* WP DC PROMOTIONS

all the Commissioners, prepare the final
seniority list of Tahsildars.

(5) A copy of such final seniority list of Tahsildars
shall be kept by Government in the office of
every Commissioner and of every Collector for
information of the persons interested therein.

Government shall also issue a press note
announcing that copies of the final seniority list
of Tahsildars have been kept as aforesaid."

"9. Constitution of Selection Committee and
preparation of select list of Tahsildars:-

(1) For the purpose of preparing a select list of
Tahsildar, Government shall constitute a
Selection Committee consisting of-

(1) Secretary, Revenue and Forests
Department of Government or where there are
two or more Secretaries in that Department,
one of them nominated by Government.

...Chairman
(2) Secretary (Personal) in the General
Administration Department of Government.

...Member
(3) Two Revenue Commissioners nominated
by Government (one of them shall be belonging
to Backward Classes, if available).

...Members
(4) Deputy Secretary in-charge of the subject
in the Revenue and Forests Department.

...Member/ Secretary

(2) The Committee shall meet in the month of
September or as soon as possible thereafter
every year; and subject to the provisions of
sub-rule (5), prepare a select list as provided in
this rule of Tahsildars fit to be promoted to the
cadre of Deputy Collectors.

(3) The Committee shall consider the cases of all
Tahsildars including,-

(i) those whose names are already included
in the select list prepared earlier but orders
*43* WP DC PROMOTIONS

regarding whose promotion to cadre of Deputy
Collectors have not been issued till the date of
the meeting,

(ii) those who, after being provisionally
promoted to the cadre of Deputy Collectors,
have been reverted as Tahsildars, and

(iii) those whose names are included in the
final seniority list of Tahsildars prepared under
sub-rule (4) of rule 8 in the order in which their
names appear in that list.

(4) The number of Tahsildars to be included in the
select list shall be, as nearly as may be, equal
to the vacancies in the cadre of Deputy
Collectors which are likely to arise during the
next twelve months (i.e. from 1st September to
31st August).

(5) The Committee shall take into consideration all
confidential reports about the officer in the
cadre of Tahsildars and then assess the merit of
that officer.

(6) Those officers who are considered to possess
outstanding merit, exceptional ability or
positive merit and have achieved tangible result
and show promise of being able to discharge
efficiently the duties and responsibilities of a
Deputy Collector shall alone be ranked
amongst the first 25 per cent of the total
number of officers to be included in the select
list. The officer to be ranked thereafter shall be
selected from amongst those who are
considered fit for the post of a Deputy
Collector.

(7) The select list drawn up by the Committee shall
be submitted to Government together with all
the relevant material including the confidential
reports about the officers concerned.

Government shall, thereafter, in consultation
with the Commission, determine the final select
list of Tahsildars fit to be promoted as Deputy
Collectors."

*44* WP DC PROMOTIONS

"10. Provisional promotion to Deputy Collector's
cadre:-

(1) The Tahsildars whose names are included in the
final select list determined by Government
under sub-rule (7) of rule 9 shall be
provisionally promoted to a post in the cadre of
Deputy Collectors in the order of their ranking
in that list as and when vacancies occur in that
cadre:

Provided that, where such final select list is
exhausted and the exigencies of administration
require the vacancies in that cadre to be filled
up immediately, Government may, purely as a
stop gap arrangement, appoint,-

(i) where the fresh select list is yet to be
prepared, Tahsildars included in the final
seniority list of Tahsildars prepared under rule
8 in the order of their seniority in that list and
who are considered fit by it for promotion to the
cadre of Deputy Collectors after considering
up-to-date confidential reports about them,

(ii) where the Committee has drawn up a
select list but Government has not determined
the final select list in consultation with the
Commission as provided in sub-rule (7) of rule
9, the Tahsildars included in the select list
drawn by the Committee in the order of their
ranking in that list.

(2) The appointment made as a stop-gap
arrangement under the proviso to sub-rule (1)
shall be deemed to be a regular provisional
appointment under sub-rule (1) when the
officer in question is included in the final select
list determined by Government under sub-rule
(7) of rule 9. Where the officer appointed as a
stop-gap arrangement under the proviso to sub-
rule (1) is not included in such final select list,
he shall be reverted immediately after such
final select list is determined by Government
under sub-rule (7) of rule 9.

(3) The promotion under sub-rule (1) or under sub-

*45* WP DC PROMOTIONS

rule (2) shall continue to be provisional until
the officer has been considered fit to be
continued in the cadre of Deputy Collectors in
the review made under rule 12:

Provided that it shall be competent to
Government to revert any Deputy Collector
even before the completion of the review under
rule 12 if his work is considered unsatisfactory
or for any other reason considered sufficient by
Government for such reversion; and in such
cases, the Commission shall be consulted
within six months of the reversion."

"12. Review of Duty Collectors promoted
provisionally:-

(1) Whenever the Selection Committee constituted
under rule 9 meets as required by sub-rule (2)
of that rule, it shall also consider the cases of
the officers who have been provisionally
promoted as Deputy Collectors under rule 10
and have so officiated for a continuous period
of not less than three years for determining
whether they are fit to be continued in the cadre
of Deputy Collectors.

(2) The Committed shall, after considering the
confidential reports of the officers for the
period during which the officers had officiated
in the cadre of Deputy Collectors prepare a list
of officers who are fit to be continued in the
Deputy Collectors' cadre and also a list of
officers who are not so fit.

(3) The two lists drawn up by the Committee under
sub-rule (2) shall be submitted to Government
together with all the relevant material
including all the confidential reports about the
officers concerned. Government will, therefore,
in consultation with the Commission, finalise
the two lists.

(4) The officers who are not found fit for
continuing in the cadre of Deputy Collectors
*46* WP DC PROMOTIONS

shall be reverted immediately, and their names
removed from the select list determined by
Government under sub-rule (7) of rule 9."

"13. Principles according to which seniority of
Deputy Collectors shall be determined:-

(1) The seniority inter-se of the promoted Deputy
Collectors shall be in the same order in which
their names appear in the final select list
determined by Government under sub-rule (7)
of rule 9:

Provided that the seniority of the promoted
Deputy Collectors appointed as a stop- gap
arrangement under the proviso to sub-rule (1)
of rule 10, shall be deemed to be provisional till
his appointment becomes regular under sub-
rule (2) of that rule.

(2) Where the dates of continuous service of the
promoted Deputy Collectors in the cadre of
Deputy Collectors are not chronologically in
conformity with their inter-se seniority as
provided in sub-rule (1) due to the seniority of
any Deputy Collector being revised subsequent
to his promotion as Deputy Collector in order
to remove an injustice done to him in fixing his
seniority in the cadre of Deputy Collectors or
Tahsildars or, as the case may be, Awal
Karkuns. or Naib Tahsildars, or for rectifying
an error made in the fixation of such seniority.

the dates of continuous service as Deputy
Collectors shall be assigned to the promoted
Deputy Collectors in such manner as to be
chronologically in conformity with their order
of seniority (that is to say, the senior officer will
have the earlier date of continuous service than
his junior in the seniority list). The dates so
assigned shall be called the deemed dates" of
continuous service in the Deputy Collectors'
cadre, and shall be taken into consideration for
the purpose of this rule.

(3) The inter-se seniority of the directly recruited
*47* WP DC PROMOTIONS

Deputy Collectors, selected in one batch by the
Commission shall be determined in accordance
with the order of preference recommended for
them by the Commission irrespective of the
dates of their joining the cadre of Deputy
Collectors, subject to the condition that they
join the cadre within one month of their
appointment order or, where an extension of the
period for joining the cadre is sanctioned by
Government, within such extended period; and
if they join such cadre after the expiry of the
period of one month or as the case may be, of
the extended period, then such seniority shall
be determined according to the dates of their
joining the cadre.

(4) Where the dates of appointment of directly
recruited Deputy Collectors are not
chronologically in conformity with their inter-
se seniority as provided in sub-rule (3), such
dates shall be assigned to them in such manner
as to be chronologically in conformity with
their order of seniority. The dates so assigned
shall be called "the deemed dates" of
appointment on probation of the directly
recruited Deputy Collectors and shall be taken
into consideration for the purposes of this rule.
(5) After having determined the seniority of
promoted Deputy Collectors and directly
recruited Deputy Collectors in the manner
provided in sub-rules (2), (3), (4) and (5),
Government shall determine the seniority of all
the Deputy Collectors according to the date of
continuous service in the cadre cf Deputy
Collectors or, as the case may be, according to
the deemed dates assigned to them under sub-
rule (2) or sub-rule (4):

Provided that,

(a) any service rendered in a fortuitous
appointment shall be excluded,

(b) where the dates of continuous service or,
as the case may be, of joining the cadre of
*48* WP DC PROMOTIONS

Deputy Collectors of any two or more officers
are identical, the officer senior in age shall be
considered as senior for the purpose of
determining such seniority."

21. He then contends that, under Rule 8, the 01 st day of

April of a particular year is the cut off date for completion of five

years by a Tahasildar. Under Rule 9(1), the selection committee

is to be constituted by the Government. The committee has to

meet in the month of September of each year or as soon as

possible thereafter, thereby mandating the committee to fulfill

this requirement prior to 31st December of each year, considering

the specific language set out in sub-rule (2). Rule 3 provides for

cases of the Tahasildars to be considered in view of sub clauses

(i) to (iii). Even those Tahasildars, who were provisionally

promoted to the cadre of the Deputy Collectors and have been

reverted and those whose names are included in the final

seniority list of Tahasildars prepared under Rule 8(4) in the order

in which their names appear in that list, can be considered to be

fit for promotion.

22. He, therefore, contends that the two Petitioners

Smt.Chandrakar and Shri Kulkarni, could not have been
*49* WP DC PROMOTIONS

appointed as Deputy Collectors on 09.07.1999, since they

completed five years as Tahasildars on 01.03.1999 and the

committee could not have convened a meeting to consider their

cases prior to September of 1999, under Rule 9(2). So also, under

Rule 9(4), the probable vacancies which are likely to arise during

the next twelve months i.e. from 1st September of that year to 31st

August of the next year, are also to be considered. This could not

have been done as in July,1999.

23. He, then, submits that Rule 9(7) provides for

submitting the select list drawn by the committee, to the

Government along with relevant material. The Government is

duty bound by a mandate, in view of the word "shall", to consult

the Commission and determine the final select list of Tahasildars

fit to be promoted as Deputy Collectors. Under Rule 10(1), the

Tahasildars whose names are included in the final select list

determined under Rule 9(7), are to be provisionally promoted to

a post in the cadre of Deputy Collector in the order of their

ranking in that list, as and when the vacancies occurred.

24. He then draws our attention to the proviso below
*50* WP DC PROMOTIONS

Rule 10(1), which permits the Government to appoint the Deputy

Collectors purely as a stop-gap arrangement, if the final select

list is exhausted and the exigencies of administration require the

vacancies in that cadre to be filled up immediately. He, therefore,

relies specifically on Rule 10(2) and contends that the

appointment made as a stop-gap arrangement under the proviso

to sub rule (1) of Rule 10, shall be deemed to be a regular

provisional appointment under sub-rule (1), only when the

officer in question is included in the final select list determined

by the Government under Rule 9(7). When the officer appointed

as a stop gap arrangement is not included in the final select list,

he has to be reverted immediately after such final select list is

determined by the Government under Rule 9(7). He then draws

our attention to Rule 10(3) by which, the promotion under sub-

rule (1) or (2), would continue to be provisional until the officer

is considered fit to be continued in the cadre of Deputy

Collectors, in the review made under Rule 12.

25. He then refers to Rule 12 which pertains to review

of PDC who are promoted provisionally. Sub rule (1) mandates

the selection committee to consider cases of officers who have
*51* WP DC PROMOTIONS

been provisionally promoted as Deputy Collectors under Rule 10

and have officiated for a continuous period of not less than three

years for determining whether they are fit to be continued in the

cadre of Deputy Collectors. Sub rule (2) mandates the

Committee to prepare one list of officers provisionally appointed

as Deputy Collectors, who are fit to be continued in the Deputy

Collector's cadre and also prepare a second list of officers, who

are not so fit. Sub-rule (3) mandates the committee to present

two lists to the Government, together with all the relevant

material. The Government, thereafter, would consult the

Commission and finalize the two lists. Under sub-rule (4),

officers who are not found fit for continuing in the cadre of

Deputy Collectors, are to be reverted immediately and their

names are to be removed from the select list prepared under Rule

9(7).

26. Rule 13(1) mandates that the seniority inter-se the

promoted Deputy Collectors, shall be in the same order in which

their names appear in the final select list determined by the

Government under Rule 9(7). The proviso below sub-rule (1)

indicates that the seniority of the promoted Deputy Collectors,
*52* WP DC PROMOTIONS

appointed as a stop-gap arrangement under the proviso below

Rule 10(1), shall be deemed to be provisional till the

appointment becomes regular under Rule 10(2).

27. Shri Sapkal specifically submits in relation to the

cases in hand, that there was no consultation by the Government

with the Commission as mandated under Rule 9(7). Therefore,

there is no final select list prepared by the Government. He

points out that the Government has admitted this fact before the

Tribunal and even before this Court.

28. The learned Advocate Shri Katneshwarkar,

representing the Government, when called upon, submits that the

Government has admitted this aspect and there was no

consultation by the Government with the Commission under

Rule 9(7), before finalizing the list. Shri Sapkal, therefore,

reiterates that the adhoc appointment of these two Petitioners

Smt.Chandrakar and Shri Kulkarni, w.e.f. 09.07.1999, as Deputy

Collectors, is not as per the approved list under Rule 9(7) and

such adhoc promotions are in violation of Rule 9(2) and 9(4).

*53* WP DC PROMOTIONS

29. Shri Sapkal has referred to the impugned judgment

delivered by the Tribunal, dated 26.08.2022. Primarily, he has

contended that, both the learned members of the Bench have

taken 'almost contradictory' views. Though the learned Member

(Administrative) has signed the portion of the judgment (86

pages), authored by the learned Member (Judicial), he has added

his observations, analysis and conclusions (11 pages), which are

contrary to the view taken by the learned Member (Judicial).

30. He has referred to the text of the portion authored by

the learned Member (Administrative), which we are referring to,

(in brief), as follows:-

(a) In paragraph 1, it is noted that all the parties are

united/ in agreement on the aspect of the applicability of the

1977 Rules.

(b) In paragraph 2, he has referred to the conclusion that

the Applicants before the Tribunal had entered the cadre of

Deputy Collectors as "promotee Deputy Collectors" (PDC).

They have claimed seniority in the cadre of Deputy Collectors as

per their dates of appointments.

(c) The directly appointed Deputy Collectors (DDC)
*54* WP DC PROMOTIONS

have contended that the initial appointment of the Applicants has

been on adhoc basis and fortuitous in nature and under the 1977

Rules in the light of the judgment of the Honourable Supreme

Court, they are fit to be reverted to their parent cadre of

Tahasildars.

(d) The State Authorities admitted that the initial

appointment of the Applicants had not been strictly in accordance

with the 1977 Rules and that a sincere effort was made through

the process of preparation and publication of the combined

seniority list of officers in the cadre of Deputy Collectors for the

period 01.01.1999 to 31.12.2003, by assigning the DDC their due

seniority position and at the same time, regularizing the adhoc

and fortuitous services rendered by the Promotee Deputy

Collectors (PDC).

(e) The issue of locus-standi of the Applicants has been

raised in explicit terms by the Respondents individuals (not the

State Authorities) and it is necessary to examine the said issue

before going to the merits of the case.

(f) Admittedly, the Applicants have not placed on

record a copy of the "final combined seniority list" for the cadre

of Tahasildars, which was prepared and published by the
*55* WP DC PROMOTIONS

Respondent Authorities as per Rule 8(4) and 8(5) for the

purposes of drawing a select list of Tahasildars for promotion to

the post of Deputy Collectors, by the Selection Committee

constituted under Rule 9(1). So also, the Applicants have not

placed on record the "final select list" prepared by the

Government under Rule 9(7), though the Applicants claim that

their names were included in such a list. The State of

Maharashtra has not taken a clear stand. This last sentence is

against the record since the State Government has filed an

affidavit before the Tribunal stating therein that such a "final

combined seniority list" and the "final select list", was never

prepared by the Government.

(g) An inference can be drawn that the names of the

Applicants were not eligible for inclusion in the final combined

seniority list prepared under Rule 8(4), for placing the same for

consideration of the selection committee for their promotions to

the cadre of Deputy Collectors. The individual Respondents had

asserted that the Applicants had not completed a minimum of

five years of service in the cadre of Tahasildars at the time of the

preparation of the combined seniority list.

(h) There is no evidence to show that the names of the
*56* WP DC PROMOTIONS

Applicants in both the proceedings, were eligible to be

incorporated in the said final select list prepared under Rule 9(7).

It was contended by the individual Respondents that Rule 9(7)

was not complied with by Respondent No.1 and which is

admitted in it's Written Statement.

(i) In the specific view of the learned Member

(Administrative), that the seniority inter-se the PDC, could not be

an issue which could be raised by the DDC. However, a DDC

cannot be excluded from raising objections in respect of

inclusion of the names of the PDC in the final combined

seniority list as per Rule 8(4), on the ground that such a PDC did

not meet the eligibility criteria under Rule 8(1). The names of

only such Tahasildars could be considered for inclusion in the

select list prepared under Rule 9(7), if they are eligible to be

included in the final combined seniority list prepared under Rule

8(4).

(j) The learned Member (Administrative) cast issue

No.1 as "Whether the Applicants in TA-1 and TA-2 were qualified

to be included in the State level final combined seniority list of

Tahasildars as per the provisions of Rule 8(1) of the Rules of

1977?"

*57* WP DC PROMOTIONS

While answering the said issue, it was concluded

that the meeting of the Departmental Promotion Committee

(DPC) cannot be construed to mean that the Selection Committee

constituted under Rule 9(1) is deemed to have convened a

meeting and the meeting of the Selection Committee has to be

held in the manner prescribed under the 1977 Rules.

(k) Issue No.3 (there is no issue No.2 in the order) reads

as "Whether the names of the Applicants in TA-1 and TA-2 had

been included in the select list of Tahasildars as per provisions of

Rule 9 of the Rules of 1977?"

This issue was answered by concluding that the

names of these four Applicants had not been included in the

select list of Tahasildars, if any, as per Rule 9(3)(iii), since their

names did not appear in the final combined seniority list of

Tahasildars which has to be prepared under Rule 8(4). Therefore,

it was concluded that the four Applicants do not have the locus-

standi to contest the Transfer Applications.

(l) Issue No.4 reads as "Whether the appointment of the

Applicants listed in TA-1 and TA-2 can be classified as a stop-

gap arrangement as per provisions of Rule 10(1) of the Rules of

1977?"

*58* WP DC PROMOTIONS

This was answered by concluding that the provisos

(i) and (ii), to Rule 10(1), provide for filling up the vacancies in

the cadre of Deputy Collectors purely as a stop-gap arrangement.

However, proviso (i) indicates that only an officer in the cadre of

Tahasildar whose name has been included in the combined final

seniority list prepared under Rule 8(4), could be appointed as a

Deputy Collector on a stop-gap basis. It was concluded that the

Applicants were not eligible for appointment even on stop-gap

basis on the post of Deputy Collector under proviso (i) of Rule

10.

(m) Issue No.5 reads as "Whether the names of

Applicants included in select list by approval of Government with

prior consultation with MPSC as per provisions of Rule 9(7) of

the Rules of 1977?"

It was concluded that no select list was prepared

under Rule 9(7), which mandates consultation with the MPSC.

(n) Issue No.6 reads as "Whether review of services of

the Applicants in TA-1 and TA-2 had been duly carried out as per

provisions of Rule 12 of the Rules of 1977?"

It was concluded that there was no review of

services of the Applicants as was required to be carried out as per
*59* WP DC PROMOTIONS

Rule 12.

(o) Issue No.7 reads as "How the seniority of Applicants

in TA-1 and TA-2 is to be determined under provisions of Rule 13

of the Rules of 1977?"

It was concluded that the impugned seniority list

prepared and published by the State, was not in accordance with

the relevant provisions under the 1977 Rules. A combined

seniority list of DDC and PDC cannot be prepared in accordance

with Rule 13, without following the due procedure for

regularization of the recruitment of the Applicants and similarly

situated other PDC. In the absence of any provision in this regard

in the Rules of 1977, the case law may be referred to which

permits regularization of recruitment which is irregular ab-initio.

(p) Issue No.8 reads as "As the Applicants in TA-1 and

TA-2 have continued in cadre of Deputy Collectors for

continuous period of 20 to 22 years, how does inaction on part of

Respondent No.1 and 2 to take action as per relevant rules under

the Rules of 1977 affect the right of the Applicants to claim and

get seniority w.e.f. their respective dates of appointments in the

cadre of Deputy Collectors vis-a-vis the seniority of direct recruit

Deputy Collectors?"

*60* WP DC PROMOTIONS

It was concluded that though the Rules mandate that

the Applicants need to be reverted back to the cadre of

Tahasildar, this may amount to turning the clock backwards

which may lead to multiple administrative complications. On the

other hand, conceding to the demands of the Applicants to grant

them seniority w.e.f. their date of joining the cadre of Deputy

Collectors, may amount to injustice to the DDC. Regularization

of the PDC in the combined seniority list seems to be the only

option which has been apparently accepted by most of the PDC,

except these four Applicants who stand on a weak ground of

locus-standi.

(q) Issue No.9 reads as "Whether the exact number of

posts in the cadre of Deputy Collectors is material to decide the

claims of four Applicants?"

It was concluded that the four Applicants do not

have the locus standi and, therefore, the total number of posts in

the cadre of Deputy Collectors may not be material for deciding

the Applications filed by the Applicants. However, the

Respondents may, in order to be fair to all the officers in the said

cadre, re-confirm the data depicted in the matrix enclosed along

with the circular issued by the Government, Revenue and Forest
*61* WP DC PROMOTIONS

Department bearing No.SNT-22/97/E-1A-Mantralay dated

31.12.2020, with special reference to creation of posts of the

Deputy Collectors and it's total number along with the break-up

of temporary and permanent posts.

(r) While concluding in a long paragraph, the learned

Member (Administrative) has, finally, held that:-

"On one hand, we have recorded
unambiguous finding that the method which has
been adopted and applied by the respondent no.1
while determining the impugned seniority list is,
strictly speaking, not in precise conformity with
the provisions under "the Rules of 1977". On the
other hand, we also observe that prima facie, the
applicants do not seem to have locus-standi in the
present matter. The argument put forth by the
learned Special Counsel for private respondent
that the applicants having been promoted in
violation of rules need to be reverted back to their
parent cadre of Tahasildars, can be said to be
administratively impractical in view of the fact of
long service rendered by the applicants. These
two sides of the matter put up in a dilemma as to
how a legally valid, workable resolution to the
problem can be worked out without letting the
matter to stale further. From above analysis, it is
also inferred by me that the issue of seniority
position of the original applicants cannot be
decided by the provisions of the Recruitment
Rules, 1977 and passing an order in the present
matters requires superior learning and ability to
analyze the judgments delivered by Hon'ble High
Courts and Hon'ble Apex Court touching upon
similar aspects of service matters. Therefore, after
putting my views on record as above for
consideration, I may prefer to concur with
*62* WP DC PROMOTIONS

operative part of the order passed by Hon'ble
Justice P.R. Bora, the Vice Chairman."

31. The learned Senior Advocate Shri Sapkal submits

that though the learned Member (Judicial) and the learned

Member (Administrative), have concurred as regards the fact that

the select list was not in accordance with the Rules and there was

no consultation with the Commission, the learned Member

(Judicial) has held that the said fact could be termed as an

irregularity. Per contra, the learned Member (Administrative) has

concluded that if there is no final combined seniority list and the

select list, as is required by law, the PDC will have to suffer the

consequences. On the issue of the manner in which the PDC

should now be dealt with, the learned Member (Judicial) has

concluded that they cannot be made to suffer the consequences.

He has directed to delete the remark "fortuitous service", against

the PDC who are at Sr.Nos.582 to 700. Per contra, the learned

Member (Administrative) has concluded that these PDC cannot

be in the seniority positions and, therefore, being in a dilemma,

he would prefer to concur with the learned Member (Judicial).

Shri Sapkal, therefore, submits that though both the Members of
*63* WP DC PROMOTIONS

the Bench are unanimous as regards the illegality in the final

seniority list and the select list, both have taken a divergent view.

32. In paragraph 23 of his judgment, the learned

Member (Judicial) has held that the DPC was convened on

15.04.1999 and the promotion orders are issued in the month of

July, 1999. To this extent, there is reason to believe that there is

some deviation from the Recruitment Rules. The said minor

contravention has to be treated as an irregularity and it would be

unjust and unfair to treat the appointments by way of promotion

granted to the four Applicants as being illegal, after a period of

20 years.

33. In paragraph 26, it is held that a reasonable

inference can be drawn that the inclusion of these Applicants in

the select list in the cadre of Deputy Collectors, cannot be held to

be illegal. Though a review meeting under Rule 12 is not held,

the State has taken a conscious decision that the review meeting

is deemed to have been convened as these four Applicants were

continued as PDC, admittedly without a review meeting.

*64* WP DC PROMOTIONS

34. In paragraph 29, it is held as under:-

"29. It is true that sub-rule 9 of Rule 7 provides for
consultation with MPSC while determining the
seniority list drawn up by the committee of the
Tahsildars fit to be promoted as Deputy
Collectors. It is also true that there is nothing
on record to show that the MPSC was consulted
by the State before determining the final select
list of Tahsildars under sub-rule 7 of Rule 9.
However, question arises whether such
objection assumes any value and significance
after the period of more than 20 years of the
alleged action. According to us, the delay
caused has rendered the objection raised on
behalf of private respondents redundant.
Moreover, as has been held by Hon'ble
Supreme Court in the case of
State of U.P. vs.
Manbodhan Lal Shrivastava
(cited supra)
absence of consultation with MPSC can be
treated as irregularity and not illegality.

The
said irregularity can be cured as held by
Hon'ble Supreme Court in the case of
Ajay
Kumar Singh vs. State of Uttar Pradesh
(cited
supra) through prospective consultation. The
promotions granted in favour of the applicants
and inclusion of their names in the select list
determined under Rule 9(7), therefore cannot
be negated on the ground of 'non-consultation'
with MPSC."

35. The learned Member (Judicial) has relied upon an

earlier view taken by the Tribunal vide judgment dated

17.04.2008, in O.A. No.526/2004, from paragraph Nos.31 to 41

wherein, the Tribunal concluded in paragraph 41 that "There is
*65* WP DC PROMOTIONS

no difficulty for us to hold that cadre includes both permanent

and temporary posts."

36. In paragraph 49, it is held that "In addition to

permanent posts of 514, definitely some temporary posts were

there in existence meaning thereby, that cadre strength at the

relevant time was more than 514 and the Applicants in both these

Applications were part of the cadre of Deputy Collectors." In

paragraph 50, he concludes that "... Though in the said orders, it

has been stated that the promotions so granted are purely

temporary and further that the applicants may not be entitled to

claim any benefit on the basis of the said temporary promotion

like seniority etc., it is nowhere mentioned in the said order

under which provision of the Recruitment Rules such promotions

were given. It is not mentioned in the said orders that the

promotions granted in favour of the applicants are by way of

stop-gap arrangement or on adhoc basis."

37. In paragraph 52, it is held as under:-

"52. We have reproduced the proviso to Sub-rule (1)
of Rule 10 hereinbefore. We have also noted in
what circumstances the promotions can be
*66* WP DC PROMOTIONS

granted by the Government under the said
provision. In the affidavit in reply submitted on
behalf of respondent no. 1 it is not its case that
at the time when the applicants and other 94
officers in the cadre of Tahsildars were
promoted to the post of Deputy Collector, there
was any administrative exigency. Respondent
no. 1 has also not provided any such
information or has raised any such plea that at
the time when the applicants were promoted, the
final select list prepared under Sub-rule 7 of
Rule 9 was already exhausted. It is also not
disclosed by respondent No. 1 whether
administrative exigency was of the nature that
the vacancies in the cadre of Deputy Collectors
were to be filled up immediately. Respondent
No. 1 has further not provided any information
whether names of the applicants for promoting
them to the post of Deputy Collector under the
said provision were required to be taken from
the final select list of the Tahsildars prepared
under Rule 8. It is also not stated by respondent
No. 1 whether the names of the applicants were
selected from the select list which was awaiting
its determination under Sub-rule 7 of Rule 9 by
the Government. It is undisputed that once
promoted to the post of Deputy Collector, the
applicants did not suffer reversion to any lower
cadre and they have been discharging their
duties uninterruptedly on the promoted post of
Deputy Collector."

38. Shri Sapkal submits that the learned Member

(Judicial) has erred in concluding in paragraph 53 that the PDCs

are not covered by Rule 10(1), which provides for temporary

promotions as a stop-gap arrangement. He held that Respondent
*67* WP DC PROMOTIONS

No.1/State does not take a stand that these PDCs are covered by

Rule 10(1). According to Shri Sapkal, this view is contrary to the

view taken by the Bombay High Court in the case of one of these

Applicants, namely, Smt.Samiksha Ramakant Chandrakar, who

had preferred Writ Petition No.11367/2019. He points out the

judgment dated 18.12.2019, more specifically paragraph Nos.25,

26, 27, 28 and 29 (operative part), reproduced above.

39. He then submits that the learned Member (Judicial)

has given a cursory glance to a directly applicable judgment

delivered by the Honourable Supreme Court in
Malook Singh

(supra) and has brushed aside the
ratio
laid down in

the said

judgment
by holding that it would not apply to the facts of the

case. Similarly, three judgments of the Supreme Court, viz.

(
i)

Union of India and another vs. Prof. S.K. Sharma
,
AIR 1992

SC 1188, (ii) Excise Commissioner, Karnataka and another

vs. V. Sreekanta
, AIR 1993 SC 1564 and (iii) P.K. Singh vs.

Bool Chand Chablani and others, AIR 1999 SC 1478, have

been brushed aside with a passing remark that "It may not be

necessary to elaborately discuss each of the said judgment, for

the reason that in all these judgments the principle laid down is
*68* WP DC PROMOTIONS

same that the 'services rendered on adhoc basis cannot be

considered for the purpose of reckoning seniority'." He,

therefore, submits that the conclusions drawn in paragraph 58,

that it is not established that the initial appointment of the four

Applicants was not in accordance with the Rules of Recruitment,

is a perverse finding. After having concluded that Rule 9(7) of

the Rules has been violated, it cannot be held that there is no

illegality in the promotions of the PDC. This is apparently a

perverse conclusion.

40. Shri Sapkal has expressed astonishment that though

the Tribunal has concluded that the four Applicants have no locus

standi to file the Applications and the said Applications need not

be entertained, it has effectively granted relief and directions,

without quashing the final seniority list dated 31.12.2020. Once

the Tribunal concludes that the Applicants had no locus standi to

assail the impugned notification, it was not necessary for the

Tribunal to deal with the merits of the claims of these four

Applicants.

*69* WP DC PROMOTIONS

Submissions of the learned Senior Advocate Shri Apte

41. Shri Apte, the learned Senior Advocate has appeared

as a Special Counsel for the State of Maharashtra. He submits

that the dispute is regarding the seniority inter-se the DDC and

PDC. Rule 4 provides for a quota. The DDC should not be less

than 35% and more than 50% in the cadre of Deputy Collectors.

The PDC, subject to the compliance of the Rules insofar as

finalization of the seniority and the select list, should not exceed

65% and should not be less than 50%. The adhoc promotion

orders resulted in the PDC exceeding 65%. Such excess in quota

is to be termed as "fortuitous" appointment. It is also called as a

stop-gap appointment.

42. Shri Apte has relied upon
Keshav Chandra Joshi

and others vs. Union of India and others
, 1992 Suppl. (1)

SCC 272, more particularly paragraph Nos.18 to 28 and 34

which read as under:-

"18. A close reading of the fasciculus of rules clearly
posits that recruitment as Assistant Conservator
of Forest shall be from two sources, namely, by
direct recruitment and by promotion of permanent
Forest Rangers of the Subordinate Forest Service.
Qualifications have been provided for
recruitment. The direct recruit, on selection by the
Public Service Commission is required to undergo
training for two years in the college as a part of
*70* WP DC PROMOTIONS

the selection and on obtaining diploma, the
Governor is to appoint him to the substantive post
of Assistant Conservator of Forest on probation.
The service of the direct recruits is to be counted
from the date of discharging the duties of the post
and on successful completion of the probation
within two years or extended period and passing
the tests and on confirmation thereof by the
Governor, he becomes a member of the service in
substantive capacity. Similarly the promotees
shall be recruited in accordance with Rule 5(b)
and the procedure prescribed in Appendix 'B'. The
Chief Conservator of Forest would draw up the
list of permanent Forest Range Officers eligible
for promotion strictly on the basis of merit. The
Committee headed by the member of the Public
Service Commission would interview them and
prepare the list of the selected candidates on the
basis of merit and ability, which would be
forwarded to the government. On receipt thereof
the Governor would appoint the Forest Range
Officers as Assistant Conservator of Forest on
probation in terms of the ratio prescribed in Rule

6. The selection shall be based on merit and
ability. The seniority of Forest Rangers inter se is
to be considered only where the merit and ability
as Forest Rangers are approximately equal. Thus
even the juniormost meritorious Forest Range
Officer would steal a march over his seniors and
would earn his seniority as Assistant Conservator
of Forest. The promotee shall also be on
probation for a period of two years and shall also
have to pass the prescribed tests unless exempted.
On successful completion and the Governor after
satisfying himself that the appointee is also
otherwise fit to be confirmed, makes an order.
Then only the promotee becomes a regular
member of the service in a substantive capacity.

19. The heart of the controversy lies in the question as
to when a person is appointed to a post in the
*71* WP DC PROMOTIONS

service in a substantive capacity within the
meaning of Rule 3(h) read with Rules 5 and 24 of
the Rules. Under Rule 5 read with Rule 3(h) a
member of the service means a person, be it direct
recruit under Rule 5(a) or promotee under Rule
5(b), appointed in a substantive capacity to the
service as per the provisions of the rules. In order
to become a member of the service he/they must
satisfy two conditions, namely, the appointment
must be in substantive capacity and the
appointment has to be to the post in the service
according to rules and within the quota to a
substantive vacancy. There exists marked
distinction between appointment in a substantive
capacity and appointment to the substantive post.
Therefore, the membership to the service must be
preceded by an order of appointment to the post
validly made by the Governor. Then only he/they
become member/members of the service. Any
other construction would be violation of the
Rules.

20. The narrative of facts and attendant
circumstances would indicate that the
Government at no point of time abandoned direct
recruitment under Rule 5(a), nor omitted to fix
inter se seniority. No blame in this regard should
lie at the doors of the government as due to
recourse to judicial process this situation crept
up. It is not the case of the promotees that
Government held out any promise that the
promotees would be regularised from the
respective dates of promotion. On the other hand
the government's positive act of adjusting the
promotees in excess of the quota under Rule 6 in
the vacancies that arose in the succeeding years
belie such a situation.

21. From the above background two questions would
emerge: (i) as to when promotees become
members of the cadre of Assistant Conservators in
*72* WP DC PROMOTIONS

a substantive capacity in accordance with the
rules, and (ii) whether the entire length of service
from the date of initial appointments should be
counted towards their seniority. The prerequisite
of the right to inclusion in a common list of
seniority is that all those who claim that right
must broadly bear the same characteristics.
Fortuitous circumstances of their holding the
grade post carrying the same designation or scale
of pay or discharging the same duty would not
justify the conclusion that they belong to the same
cadre. Due to exigencies of service temporary
promotions against substantive vacancies were
made. It is undoubted that preceding their
promotion, an ad hoc committee had considered
the cases of the promotees. Admittedly seniority
subject to rejection of unfit was the criteria,
followed in the selection. The selection was,
therefore, in defiance of and de hors Rule 5(b)
read with Appendix 'B'.

22. In a democracy governed by rule of law, it is
necessary for the appropriate governance of the
country that the political executive should have
the support of an efficient bureaucracy. Our
Constitution enjoins upon the executive and
charges the legislature to lay down the policy of
administration in the light of the directive
principles. The executive should implement them
to establish the contemplated egalitarian social
order envisaged in the preamble of the
Constitution.

23. It is seen that the appointments of the promotees
were made in batches yearwise. The rule
postulates that appointment shall be strictly as
per merit after interview arranged in order by the
Public Service Commission. In the same year
when the appointments are made to the
substantive vacancies from both the sources, the
promotees shall rank senior to the direct recruits
*73* WP DC PROMOTIONS

in accordance with the quota prescribed under
Rule 6. The rules provide the power to appoint
Forest Rangers from Subordinate Service, due to
administrative exigencies to officiate or to act
temporarily as Assistant Conservators of Forest.
The rule itself, thus, recognises the distinction
between substantive appointment and
temporary/officiating appointment. The procedure
to prepare the list to man the officiating or
temporary vacancies is on the basis of seniority
subject to rejection of the unfit. The question of
considering relative merit and ability of the
promotees inter se, then would not arise. Thereby,
it is clear that the list prepared by the Chief
Conservator of Forest for appointment of the
Forest Rangers to officiate in the posts of
Assistant Conservator of Forest on ad hoc or
temporary basis is only fortuitous due to non-
availability of the direct recruits as stop gap
arrangement. Employees appointed purely on ad
hoc or officiating basis due to administrative
exigencies, even though continued for a long
spell, do not become the members of the service
unless the Governor appoints them in accordance
with the rules and so they are not entitled to count
the entire length of their continuous officiating or
fortuitous service towards their seniority.

24. It is notorious that confirmation of an employee in
a substantive post would take place long years
after the retirement. An employee is entitled to be
considered for promotion on regular basis to a
higher post if he/she is an approved probationer
in the substantive lower post. An officer appointed
by promotion in accordance with Rules and within
quota and on declaration of probation is entitled
to reckon his seniority from the date of promotion
and the entire length of service, though initially
temporary, shall be counted for seniority. Ad hoc
or fortuitous appointments on a temporary or stop
gap basis cannot be taken into account for the
*74* WP DC PROMOTIONS

purpose of seniority, even if the appointee was
subsequently qualified to hold the post on a
regular basis. To give benefit of such service
would be contrary to equality enshrined in
Article
read with
Article 16(1)
of the Constitution as
unequals would be treated as equals. When
promotion is outside the quota, the seniority
would be reckoned from the date of the vacancy
within the quota, rendering the previous service
fortuitous. The previous promotion would be
regular only from the date of the vacancy within
the quota and seniority shall be counted from that
date and not from the date of his earlier
promotion or subsequent confirmation. In order to
do justice to the promotees it would not be proper
to do injustice to the direct recruits. The rule of
quota being a statutory one it must be strictly
implemented and it is impermissible for the
authorities concerned to deviate from the rule due
to administrative exigencies or expediency. The
result of pushing down the promotees appointed in
excess of the quota may work out hardship but it
is unavoidable and any construction otherwise
would be illegal, nullifying the force of statutory
rules and would offend
Articles 14
and
16(1).

Therefore, the rules must be carefully applied in
such a manner as not to violate the rules or
equality assured under
Article 14
of the
Constitution. This Court interpreted that equity is
an integral part of
Article 14.
So every attempt
would be made to minimise, as far as possible,
inequity. Disparity is inherent in the system of
working out integration of the employees drawn
from different sources, who have legitimate
aspiration to reach higher echelons of service. A
feeling of hardship to one, or heart burning to
either would be avoided. At the same time equality
is accorded to all the employees.

25. In Direct Recruits case the Constitution Bench of
this Court in which one of us (K. Ramaswamy, J.)
*75* WP DC PROMOTIONS

was a member, in Propositions 'A' and 'B' in
paragraph 47 at page 475 stated:

"(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 regularisation of his
service in accordance with the rules, the period of
officiating service will be counted."

Mr Mukhoty and Mr Garg repeatedly asked us to
apply the ratio in the cases of Narender Chadha',
Baleshwar Dass' and Chauhan contending that
the promotees were appointed to the same post;
are discharging the same duties; drawing the
same salary, therefore, they should be deemed to
be given promotion from their initial dates of
appointment, We express our inability to travel
beyond the ratio in Direct Recruits case. While
reiterating insistence upon adherence to the rule
that seniority between direct recruits and the
promotees has to be from the respective dates of
appointment, this Court noticed that in certain
cases, government by deliberate disregard of the
rules promotions were made and allowed the
promotees to continue for well over 15 to 20 years
without reversion and thereafter seniority is
sought to be fixed from the date of ad hoc
appointment. In order to obviate unjust and
inequitious results, this Court was constrained to
evolve "rule of deemed relaxation of the relevant
rules" and directed to regularise the services
*76* WP DC PROMOTIONS

giving the entire length of temporary service from
the date of initial appointment for seniority. To lay
down binding precedent the cases were referred to
a Constitution Bench. In the Direct Recruits case,
this Court has laid down clear propositions of
general application in Items A to K. Therefore, to
keep the law clear and certain and to avoid any
slant, we are of the considered view that it is not
expedient to hark back into the past precedents
and we prefer to adhere to the ratio laid down in
the Direct Recruits case.

26. As stated, the counsel for the promotees placed
strong reliance on proposition 'B' while the
counsel for the Direct Recruits relied on
proposition 'A'. The controversy is as to which of
the propositions would apply to the facts of this
case. The proposition 'A' lays down that once an
incumbent is appointed to a post according to
rules, his seniority has to be counted from the date
of his appointment and not according to the date
of his confirmation. The latter part thereof
amplifies that where the initial appointment is
only ad hoc and not according to rules and is
made as a stop gap arrangement, the period of
officiation in such post cannot be taken into
account for reckoning seniority. The quintessence
of the propositions is that the appointment to a
post must be according to rules and not by way of
ad hoc or stop gap arrangement made due to
administrative exigencies. If the initial
appointment thus made was de hors the rules, the
entire length of such service cannot be counted for
seniority. In other words the appointee would
become a member of the service in the substantive
capacity from the date of his appointment only if
the appointment was made according to rules and
seniority would be counted only from that date.
Propositions 'A' and 'B' cover different aspects of
one situation. One must discern the difference
critically. Proposition 'B' must, therefore, be read
*77* WP DC PROMOTIONS

along with para 13 of the judgment wherein the
ratio decidendi of Narender Chadha' was held to
have considerable force. The latter postulated that
if the initial appointment to a substantive post or
vacancy was made deliberately, in disregard of
the rule and allowed the incumbent to continue on
the post for well over 15 to 20 years without
reversion and till the date of regularisation of the
service in accordance with the rules, the period of
officiating service has to be counted towards
seniority. This Court in Narender Chadha case?
was cognizant of the fact that the rules empower
the government to relax the rule of appointment.
Without reading paragraph 13 and Proposition 'B'
and Narender Chadha' ratio together the true
import of the proposition would not be
appreciated. We would deal with the exercise of
power of relaxing the rule later. After giving
anxious consideration, we are of the view that the
latter half of Proposition 'A' would apply to the
facts of the case and the rule laid down in that
half is to be followed. If the concerned rules
provide the procedure to fix inter se seniority
between direct recruits and promotees, the
seniority has to be determined in that manner.

27. Realising that applicability of Proposition 'B' to
the facts would run into rough weather the
counsel for the promotees attempted to anchor it
by reiterating that as on date the Public Service
Commission found the promotees eligible for
confirmation as per rules, the entire length of
service would be counted for their seniority. We
express our inability to accede to the contention.
It is seen that appointment of the promotees as
Assistant Conservators of Forest was not in
accordance with Rule 5(b) read with Appendix 'B'
of the Rules. Admittedly the promotions were on
ad hoc basis pending direct recruitment and are in
excess of the quota prescribed under Rule 6. By
no strength of imagination it could be said that
*78* WP DC PROMOTIONS

the promotions were made to a substantive post in
accordance with the Rules. Therefore, the
promotees do not hold the post in substantive
capacity.

28. Undoubtedly when there was dearth of direct
recruits the promotees discharged the duties
ranging between 5 to 12 years prior to filing of
the writ petitions. The promotees generally may
get one or two chances of promotion to cadre
posts in higher echelons of the Indian Forest
Service. Reckoning continuous officiation of ad
hoc promotion would enable the less privileged to
excel their latent capabilities in the cadre post."

"34. Accordingly we have no hesitation to hold that the
promotees have admittedly been appointed on ad
hoc basis as a stop gap arrangement, though in
substantive posts, and till the regular recruits are
appointed in accordance with the rules. Their
appointments are de hors the rules and until they
are appointed by the Governor according to rules,
they do not become the members of the service in
a substantive capacity. Continuous length of ad
hoc service from the date of initial appointment
cannot be counted towards seniority. The
Governor shall have to make recruitment by
promotion to substantive vacancies in the posts of
Assistant Conservator of Forest, if not already
made, in accordance with Rule 5(b) read with
Appendix 'B' and Rule 6. Their seniority shall be
counted only from the respective dates of
appointment to the substantive posts in their
quota under Rule 6 as per the rules. The direct
recruits having been appointed in accordance
with Rule 5(a) read with Appendix 'A', their
seniority shall be counted from the date of their
dis- charging the duties of the post of Assistant
Conservator of Forest and the seniority of the
direct recruits also shall accordingly be fixed. The
inter se seniority of the direct recruits and
*79* WP DC PROMOTIONS

promotees shall be determined in accordance with
Rules 5, 6 and the Rule 24 in the light of the law
declared in the judgment. All the employees are
entitled to all consequential benefits. On account
of the pendency of judicial proceedings, if any of
the employees became barred by age for
consideration for promotion to cadre posts, the
appropriate governments would do well to
suitability relax the rules and do justice to the
eligible conditions."

(Emphasis supplied)

43. He, therefore, submits that the Tribunal has

unanimously concluded that the four Applicants did not have any

locus standi to challenge the impugned final list dated

31.12.2020 and the final seniority list dated 03.03.2018. He

further submits that these four Applicants were in excess of the

quota and, therefore, they would be eligible for regularization

from the dates a permanent vacancy arose within their quota.

Until then, they would continue to be adhoc appointees and the

day they are absorbed on a permanent vacant post in the cadre,

that would be the day of their entering the Deputy Collector's

quota. In the absence of a vacant post, the Tahasildar could not

have been promoted as a Deputy Collector since two Deputy

Collectors cannot occupy one post.

*80* WP DC PROMOTIONS

44. In the light of the above, Shri Apte submits that if

the select list is not in tune with the Rules, these Deputy

Collectors in the absence of a review under Rule 12 leading to

the ratification of their selection, will have to return back as

Tahasildars, notwithstanding the long times they have spent as

PDC. He relies upon
Maharashtra Vikrikar Karmachari

Sanghatana vs. State of Maharashtra
, (2000) 2 SCC 552 , in

support of his above contention. Paragraphs 4 and 26 read as

follows:-

"4. For the first time, the State Government in
exercise of powers conferred by provisions of

Article 309
of the Constitution of India, framed
the rules called Maharashtra Sales Tax
Inspectors Recruitment Rules, 1971 (for short
'the Rules 1971') which came into force w.e.f.
September 6, 1971. Suffice is to refer to Rule 2
thereof. It deals with the appointments to the
posts of Sales Tax Inspectors from two sources,
namely direct recruits and by promotion in the
ratio of 60:40 as far as practicable. Rule 2
reads thus :-

"2. Appointment to the posts of Sales
Tax Inspectors shall be made either :

(a) by promotion of suitable clerks in
the Sales Tax Department, who have passed at
least Part I of the Departmental Examination
prescribed for the Sales Tax Inspector or for the
Higher Clerical staff in the Sales Tax
Department or who have been exempted from
passing the Departmental Examination
prescribed for Sales Tax Inspectors or for the
Higher Clerical Staff:

*81* WP DC PROMOTIONS

Provided that the Clerks who have
passed Part I of the Departmental Examination
for Sales Tax Inspector and who have been
promoted to the posts of Sales Tax Inspectors
are required to pass Part II of the Departmental
Examination for Sales Tax Inspector also,
according to the rules made in that behalf,
failing which they shall be liable to be reverted.

The ratio of persons appointed by
promotion as provided above and by
nomination as provided below shall, as far as
practicable, be 40:60. The ratio shall not apply
to temporary vacancies not exceeding one year
which may be filled by promotion. Such
promotions shall, however, be treated as
stopgap promotions and will not entitle the
promotees to seniority by virtue thereof.

Note : In the period from the date on
which these rules come into force to the date on
which the results of the first Departmental
Examination of Sales Tax Inspectors under the
unified Departmental Examination Rules are
declared, promotions made to the post of Sales
Tax Inspector shall be purely provisional and
persons so promoted shall be required to pass
the prescribed Departmental Examination
within the prescribed period from the date the
Departmental Examination rules come into
force, failing which they shall be liable to be
reverted :

OR

(b) by nomination, on the result of a
competitive examination held by the
Maharashtra Public Service Commission, from
among candidates who -

(i) possess a degree in Arts, Science,
Commerce, Law or Agriculture of a recognised
University or any recognised equivalent
qualifications;

and
(ii) have attained the age of 18 years
*82* WP DC PROMOTIONS

and have not attained the age of 24 years, on
the first day of the month immediately following
the month in which the posts are advertised by
the Commission;

Provided that the upper age limit shall be
relaxed upto 30 years in the case of persons
serving in the Sales Tax Department."

Thereafter, the State of Maharashtra in exercise
of powers conferred under
Article 309
of the
Constitution of India framed the Rules for
regulating the seniority amongst government
employees. The said Rules were called
Maharashtra Civil Services (Regulation of
Seniority) Rules, 1982 (for short 'Rules 1982').
These rules came into force w.e.f. June 21,
1982, Rule 4 is relevant in the present
controversy and it reads thus :

"4. General Principles of Seniority :

(1) Subject to the other provisions of these
rules, the seniority of a Government servant in
any post, cadre or service shall ordinarily be
determined on the length of his continuous
service there:

Provided that, for the purpose of
computing such service, any period of absence
from the post, cadre or service due to leave,
deputation for training or otherwise or on
foreign service or temporary officiation in any
other post shall be taken into account, if the
competent authority certified that the
Government servant concerned would have
continued in the said post cadre or service
during such period, had he not proceeded on
leave or deputation Or been appointed
temporarily to such other post:

Provided further that, the service, if any,
rendered by him as a result of a fortuitous
appointment shall be excluded in computing the
length of service and for the purposes of
seniority he shall be deemed to have been
*83* WP DC PROMOTIONS

appointed to the post in the cadre of service on
the date on which his regular appointment is
made in accordance with the provisions of the
relevant recruitment rules.

(2) Notwithstanding anything contained in
sub rule (1) :

(a) the inter se seniority of direct
recruits selected in one batch for appointment
to any post, cadre or service, shall be
determined according to their ranks in the
order of preference arranged by the
Commission, Selection Board or in the case of
recruitment by nomination directly made by the
competent authority, the said authority, as the
case may be, if the appointment is taken up by
the person recruited within thirty days from the
date of issue of the order of appointment or
within such extended period as the competent
authority may in its discretion allow.

(b) the inter se seniority of
Government servants promoted from a Select
List shall be in the same order in which their
names appear in such Select List. If the Select
List is prepared in two parts, the first part,
containing the names of those selected
unconditionally and the second part containing
the names of those selected provisionally. All
persons included in the first part shall rank
above those included in all second part:

Provided that, if the order in which the
names are arranged in the Select List is
changed following a subsequent review of it,
the seniority of the Government servants
involved shall be re-arranged and determined
afresh in conformity with their revised ranks.

(c) the seniority of a transferred
Government servant vis-a-vis the Government
servant in the posts, cadre or service to which
he is transferred shall be determined by the
competent authority with due regard to the
*84* WP DC PROMOTIONS

class and pay scale of the post, cadre or service
from which he is transferred, the length of his
service therein and the circumstances leading
to his transfer.

(3) Where the dates of appointment in posts,
cadre or service of any two or more persons
determined after assigning the deemed dates, if
necessary, are identical the person senior in
age shall be considered as senior for the
purpose of deter-mining the seniority."

Rule 3 contains several definitions and we are
concerned with four definitions.

"3(d) "Deemed date" means the date
assigned to a Government servant in
accordance with the provisions of Rub 5;

3(e) "Direct recruit" means, in relation to
any post, cadre or service, a person appointed
by nomination thereto;

3(f) "fortuitous appointment' means a
temporary appointment made pending a
regular appointment in accordance with the
provisions of the relevant recruitment rules;

3(h) "Promotee" means, In relation to
any post, cadre or service, a Government
servant appointed thereto by promotion from a
lower post, cadre or service;"

"26. Lastly, it was contended on behalf of the
appellants that some of :the appellants have put
in more than 17 years of service when few of
the direct recruits were either schooling and/or
not born in the cadre. If the appellants were to
be pushed down, it will cause a great hardship
to them. We are unable to subscribe to this
contention because if there is patent violation
of the quota rule, the result must follow and the
appellants who remained in the office for all
these years cannot take the advantage of this
situation. This submission is, therefore, devoid
*85* WP DC PROMOTIONS

of any substance."

(Emphasis supplied)

45. He then relies upon
M.S.L. Patil, Asstt.

Conservator of Forests, Solapur (Maharashtra) and others

vs. State of Maharashtra and others
, (1996) 11 SCC 361 , to

contend that even if many years have passed in the PDC cadre, if

there is no review, the result of returning back as Tahasildar, has

to follow. Paragraphs 2 and 3 read as under:-

"2. Mr. M.S.L. Patil, party appearing-in-person has
raised five contentions, namely, that the
combined seniority as per the rules was to be
maintained from the date of the regular
appointment or promotion. As per the rules, the
petitioner came to be appointed prior to the
appointment of the direct recruits. Therefore,
the entire length of service rendered by him as
an Assistant Conservator of Forests requires to
be tagged for maintaining his seniority. If so
considered, he would be senior to the direct
recruits. Therefore, they cannot scale march
over the promotees. It is also contended that the
direct recruits unfilled quota cannot be carried
forward. He places reliance on the judgment of
this court in
Indra Sawhney v. Union of India

[1992 Supp.
(3) 217] known as Mandal's case.
They were not recruited according to rules. He
also contended that he was not made a party to
the earlier proceedings which culminated in the
aforesaid judgment. Therefore, the decision
passed by this Court is violative of the
principles of natural justice. He also contended
that the third respondent in this case is a direct
recruit and has concealed several material
*86* WP DC PROMOTIONS

facts which led to the open judgment by this
Court. Shri Raju Ramachandran, learned
senior counsel appearing for some of the
promotees, contended that in the earlier case,
this Court in paragraph 9 of the judgment has
specifically stated the premises that specific
material has not been placed on record of the
appointment of the promotees, viz., whether
their promotions were fortuitous or not. The
quota rules was broken down between the
direct recruits and the promotees. Even under
Rules, 1982, the second proviso thereto gives a
power to the Government to certify that the
direct recruitment could not be made. In view of
the stand taken by the Government in the
counter- affidavit filed in the Tribunal that the
so-called rule of quota has been broken down,
it would amount to certification that it did not
make regular recruitment; as a result,
promotees gain seniority which has to be
counted from the date of the regular promotion.
Thereby, they would be senior to the direct
recruits.

3. In view of these contentions, the question that
arises is whether the judgment of this Court has
been vitiated by any error of law warranting
reconsideration at the behest of some of the
persons who are not parties to the earlier
proceedings? It is undoubted that they were not
parties to their earlier petition but this Court
has laid down the general principle of law, and,
therefore, whether or not they are parties to the
earlier proceedings, the general principle of
law stands applicable to every person
irrespective of the fact whether he is party to
the earlier order or not. It is not in dispute that
there is a ratio prescribed for the direct recruits
and the promotees, namely 1:1. In other words,
for every 100 vacancies the promotees are
entitled only to 50 vacancies. It is not in dispute
*87* WP DC PROMOTIONS

that these promotees have been promoted in
excess of the quota. Under those circumstances,
it is settled law that the promotees who are
appointed in excess of the quota cannot get the
be fitted into seniority according to the rules.
As to what is the date on which the promotees
or the direct recruits came to be appointed into
the respective quota is a matter of record and
the seniority is required to be determined
according to the law laid down by this Court.
In several judgments of this Court, it is now
firmly settled that mere by because of the fact
that State Government could not make direct
recruitment due to its inaction, it cannot be said
that the rule of quota has been broken down.
Therefore, as and when the direct recruitment
has been made, the direct recruits are entitled
to placement of their seniority into the
vacancies reserved for them as per the ratio
and the seniority determined as per the rules
within the respective quota.
Similarly, when the
promotees came to be promoted in accordance
with the rules in excess of their quota, this
Court stated in
K.C. Joshi and others v. Union
of India and others
, [AIR 1991 SC 284] though
a Bench of three Hon'ble Judges, that the
promotees in excess of the quota cannot be
given seniority from the respective dates of
their promotions. They have to be considered
only from the respective dates on which their
respective quota is available.

The same
decision was followed and reiterated in
A.N.
Sehgal vs. Raje Rama
[1992 Supp. (1) SCC
304]. Under these circumstances, we do not
think that the judgment of this Court is vitiated
by any error of law for reconsideration. Even
Rule 4, second proviso has no application to
the facts in this case. Rule 4 contemplates the
seniority and second proviso postulates that
when the recruitment could not be made, they
have to certify the ground on which it could not
*88* WP DC PROMOTIONS

be made and thereafter the seniority has to be
determined. In view of the law now laid down,
the certification of the non-making of direct
recruitment according to rules, bears no
relevance. The question of carry forward in this
case, as
laid down in
Mandal's
case, has no
application
for the reason that the recruitment
in proportion is one the methods of recruitment
and is required to be made. The balance posts
are required to be recruited by subsequent
publication and the promotees have no right to
get into the post reserved for the direct recruits.

Mandal's case concerns carry forward posts
reserved under
Article 16(4)
for Scheduled
Castes, Scheduled Tribes and Other Backward
Classes which has nothing to do in this case.
Though some of the grounds will be available
to argue the case on merits, that is no ground to
reopen the settled law laid by this Court in
earlier decision."

46. He then relies upon a judgment delivered by the

Tribunal on 17.04.2008 in Original Application No.526/2004

(
Rajendra Nimbalkar and others vs. The State of

Maharashtra and others
), wherein, the Tribunal has upheld the

rule of quota as set out in Rule 4. He relies upon clauses 2, 3, 5

and 5.1 of the impugned list dated 31.12.2020 in support of his

above contention. To the extent of review under Rule 12, he

relies upon clause 5.2. He also relies upon clause 5.3 with regard

to fortuitous service. He has further
placed reliance upon
clauses

5.4, 5.5, 6, 6.1 to 6.3, 7, 7.1 to 7.4 and 8.

*89* WP DC PROMOTIONS

47. Shri Apte has then referred to clause 3 of the

operative order, passed by the learned Member (Judicial) and

submits that such directions without allowing the O.A. and

without concluding that the impugned final list is bad in law,

would be an unsustainable direction. Clause 3 reads thus:-

"3. The seniority list of the Deputy Collectors for
the period 01.01.2004 onwards shall be
prepared having regard to the observations
made in the present order and strictly in
observance of the Recruitment Rules of 1977,
within the period of next 6 months from the date
of this order."

48. Shri Apte has then referred to the Government

Resolution dated 31.12.2020 by which, the cadre strength of the

Deputy Collectors was fixed at 514 from 1999 onwards. This

strength was maintained upto 2012. The impugned seniority list

is upto 2003. He then takes a strong exception to the direction

issued by the Tribunal to prepare a fresh seniority list from 2004,

which was nobody's prayer before the Tribunal. When the

Tribunal has held that the four Applicants did not have the locus

standi to file the petition and had no cause of action due to which

the Tribunal disposed off the applications, it could not have
*90* WP DC PROMOTIONS

granted any relief indirectly to the Applicants which they could

not get directly. On these premises, he submits that clause 4 of

the operative part of the Tribunal's order directing deletion of the

word 'fortuitous', is unsustainable.

Submissions of the Senior Advocate Shri Kumbhakoni

49. The learned Senior Advocate representing the DDC

in these matters, more specifically Respondent No.5 in Writ

Petition No.9163/2022 and the Petitioner in Writ Petition

No.9631/2022, submits that the impugned judgment of the

Tribunal is a "fractured view". The Tribunal Members have

concurred only on two grounds, firstly that the four Applicants

do not have the locus to file the applications and they do not have

any cause of action. Despite having concluded that the four

Applicants could not have filed the proceedings, the Tribunal

proceeded to deal with the merits of the matter. This was

uncalled for and was not expected from the Tribunal.

50. On the merits of the claims of these Applicants, the

Tribunal did not interfere with the impugned final seniority list

dated 31.12.2020, which covers the period from 01.01.1999 till
*91* WP DC PROMOTIONS

31.12.2003. The earlier seniority list dated 31.12.1998 has

been finalized and the said issue is concluded. In the light

of these facts, the Tribunal had no reason to go into the merits of

the claims of the Applicants, inasmuch as, it has further travelled

in declining to interfere with the final seniority list and yet, has

issued certain directions to the State, which cannot be sustained.

51. On the aspect of whether, the impugned judgment

could be termed as a "judgment", Shri Kumbhakoni has relied

upon the view taken by the Honourable Supreme Court in

Shakuntala Shukla vs. State of U.P. and others
, (2021) SCC

Online SC 672, wherein, it has been held that the judgment must

be pronounced on the statement of material/ relevant facts, legal

issues or questions, deliberation to reach at a decision and the

ratio or conclusive decision. It would be apposite to reproduce

paragraph Nos.32 to 37 hereunder:-

"32. Having gone through the impugned judgment
and order passed by the High Court releasing
the accused on bail pending appeal, we are at
pains to note that the order granting bail to the
accused pending appeal lacks total clarity on
which part of the judgment and order can be
said to be submissions and which part can be
said to be the findings/reasonings. It does not
even reflect the submissions on behalf of the
*92* WP DC PROMOTIONS

Public Prosecutor opposing the bail pending
appeal. A detailed counter affidavit was filed
on behalf of the State opposing the bail pending
appeal which has not been even referred to by
the High Court. The manner in which the High
Court has disposed of the application under

Section 389
Cr.P.C. and has disposed of the
application for bail pending appeal cannot be
approved. It is very unfortunate that by this
judgment, we are required to observe the
importance of judgment; purpose of judgment
and what should be contained in the judgment.

33. First of all, let us consider what is "judgment".

"Judgment" means a judicial opinion which
tells the story of the case; what the case is
about; how the court is resolving the case and
why. "Judgment" is defined as any decision
given by a court on a question or questions or
issue between the parties to a proceeding
properly before court. It is also defined as the
decision or the sentence of a court in a legal
proceeding along with the reasoning of a judge
which leads him to his decision. The term
"judgment" is loosely used as judicial opinion
or decision. Roslyn Atkinson, J., Supreme Court
of Queensland, in her speech once stated that
there are four purposes for any judgment that is
written:

i) to spell out judges own thoughts;
ii) to explain your decision to the parties;

iii) to communicate the reasons for the
decision to the public; and

iv) to provide reasons for an appeal court to
consider

34. It is not adequate that a decision is accurate, it
must also be reasonable, logical and easily
comprehensible. The judicial opinion is to be
written in such a way that it elucidates in a
convincing manner and proves the fact that the
verdict is righteous and judicious. What the
*93* WP DC PROMOTIONS

court says, and how it says it, is equally
important as what the court decides.

35. Every judgment contains four basic elements
and they are (i) statement of material (relevant)
facts, (ii) legal issues or questions, (iii)
deliberation to reach at decision and (iv) the
ratio or conclusive decision. A judgment should
be coherent, systematic and logically
organised. It should enable the reader to trace
the fact to a logical conclusion on the basis of
legal principles. It is pertinent to examine the
important elements in a judgment in order to
fully understand the art of reading a judgment.

In the Path of Law, Holmes J. has stressed the
insentient factors that persuade a judge. A
judgment has to formulate findings of fact, it
has to decide what the relevant principles of
law are, and it has to apply those legal
principles to the facts. The important elements
of a judgment are:

i) Caption

ii) Case number and citation

iii) Facts

iv) Issues

v) Summary of arguments by both the parties

vi) Application of law

vii) Final conclusive verdict

36. The judgment replicates the individuality of the
judge and therefore it is indispensable that it
should be written with care and caution. The
reasoning in the judgment should be intelligible
and logical. Clarity and precision should be the
goal. All conclusions should be supported by
reasons duly recorded. The findings and
directions should be precise and specific.

Writing judgments is an art, though it involves
skillful application of law and logic. We are
conscious of the fact that the judges may be
overburdened with the pending cases and the
arrears, but at the same time, quality can never
*94* WP DC PROMOTIONS

be sacrificed for quantity. Unless judgment is
not in a precise manner, it would not have a
sweeping impact. There are some judgments
that eventually get overruled because of lack of
clarity. Therefore, whenever a judgment is
written, it should have clarity on facts; on
submissions made on behalf of the rival
parties; discussion on law points and thereafter
reasoning and thereafter the ultimate
conclusion and the findings and thereafter the
operative portion of the order. There must be a
clarity on the final relief granted. A party to
the litigation must know what actually he has
got by way of final relief. The aforesaid aspects
are to be borne in mind while writing the
judgment, which would reduce the burden of
the appellate court too. We have come across
many judgments which lack clarity on facts,
reasoning and the findings and many a times it
is very difficult to appreciate what the learned
judge wants to convey through the judgment
and because of that, matters are required to be
remanded for fresh consideration. Therefore, it
is desirable that the judgment should have a
clarity, both on facts and law and on
submissions, findings, reasonings and the
ultimate relief granted.

37. If we consider the impugned order passed by
the High Court, as observed hereinabove, we
find that there is a total lack of clarity on the
submissions, which part of the order is
submission, which part of the order is the
finding and/or reasoning. As observed
hereinabove, even the submissions on behalf of
the Public Prosecutor have not been noted and
referred to, though a detailed counter affidavit
was filed by the State opposing the bail
applications. We do not approve the manner in
which the High Court has disposed of the
application for bail pending appeal."

*95* WP DC PROMOTIONS

52. He, therefore, poses a legal question before us as to

whether, this Court should deal with the aspect of the locus

standi and cause of action, alone or go into the merits of the

matter as if this Court is exercising appellate jurisdiction.

According to him, the impugned judgment is impossible to be

confirmed "as it is". He, therefore, contends that this Court could

decide the issues of locus standi and cause of action and not any

other issue, since it is a fractured decision. This Court exercising

Writ jurisdiction, cannot deal with a matter as an Appellate

Court. If there is a direct conflict between the two Members of

the Tribunal, almost on all points except the two
referred above
,

any indulgence by the High Court in going into the merits of the

matter would amount to performing the obligation of a third

member, by the High Court.

53. He refers to
Section 26
of the Administrative

Tribunals Act, 1985, which reads thus:-

"26. Decision to be by majority.--If the Members of
a Bench differ in opinion on any point, the
point shall be decided according to the opinion
of the majority, if there is a majority, but if the
Members are equally divided, they shall state
the point or points on which they differ, and
make a reference to the Chairman who shall
*96* WP DC PROMOTIONS

either hear the point or points himself or refer
the case for hearing on such point or points by
one or more of the other Members of the
Tribunal and such point or points shall be
decided according to the opinion of the
majority of the Members of the Tribunal who
have heard the case, including those who first
heard it."

54. He submits that when one member draws a specific

conclusion as regards the important aspects in the case and the

Member (Administrative) authors a separate portion of the

judgment, his concluding approval paragraph can only be termed

as a compulsion and not a conclusion. Even the PDC have raised

grounds in Writ Petition No.9163/2022, that the reliefs and

directions which were sought, have not been granted by the

Tribunal and such directions which were never sought, have been

granted. He contends that the learned Judicial Member has taken

a different, distinct and divergent view, vis-a-vis the view taken

by the Member (Administrative).

55. He relies upon paragraphs 16 to 19 of the judgment

delivered by the Honourable Supreme Court in
J. Balaji Singh

vs. Diwakar Cole and others
, (2017) 14 SCC 207 , which read

as under:-

*97* WP DC PROMOTIONS

"16. In our considered view, the only error which the
first Appellate Court committed was that it went
on to record the findings on merits. In our view,
it was not necessary to do so while passing the
order of remand. The reason is that once the
first Appellate Court formed an opinion to
remand the case, it was required to give
reasons in support of the remand order as to
why the remand is called for in the case.

Indeed, the remand was made only to enable
the Trial Court to decide the case on merits.
Therefore, there was no need to discuss much
less record findings on several issues on merits.
It was totally uncalled for.

17. So far as the impugned order is concerned, the
High Court, in our view, committed
jurisdictional error when it also again
examined the case on merits and set aside the
judgment of the first Appellate Court and
restored the judgment of the Trial Court. The
High Court, in our opinion, should not have
done this for the simple reason that it was only
examining the legality of the remand order in
an appeal filed under Order 43 Rule 1(u) of the
Code. Indeed, once the High Court came to a
conclusion that the remand order was bad in
law then it could only remand the case to the
first Appellate Court with a direction to decide
the first appeal on merits.

18. The High Court failed to see that when the first
Appellate Court itself did not decide the appeal
on merits and considered it proper to remand
the case to the Trial Court, a fortiori, the High
Court had no jurisdiction to decide the appeal
on merits. Moreover, Order 43 Rule 1(u)
confers limited power on the High Court to
examine only the legality and correctness of the
remand order of the first Appellate Court but
not beyond that. In other words, the High Court
should have seen that Order 43 Rule 1(u) gives
a limited power to examine the issue relating to
*98* WP DC PROMOTIONS

legality of remand order, as is clear from Order
43 Rule 1(u) which reads thus:-

"1(u) an order under rule 23 or rule 23A
of Order XLI remanding a case, where an
appeal would lie from the decree of the
Appellate Court"

19. It is well settled law that the jurisdiction to
decide the appeal on merits can be exercised by
the Appellate Court only when the appeal is
filed under Section 96 or 100 of the Code
against the decree. Such was not the case
here."

[Emphasis supplied]

56. Shri Kumbhakoni has then relied upon a judgment

dated 09.02.2021, delivered by this Court at the Nagpur Bench in

Writ Petition No.3077/2020, Vijaysingh Gajrajsingh Chauhan

vs. Governor of Maharashtra and others
, AIR Online 2021

Bombay 99, [Civil Writ Petition No.3077/2020 (Nagpur Bench)

decided on 09.02.2021]. The averment of the State in the said

case was that, the petition did not disclose any cause of action,

no averments have been put forth as regards the right of the

Petitioner being affected.

Reliance was placed on
Kusum Ingots

and Alloys Limited vs. Union of India and another
, 2004 (
6)

SCC 254, Jotun India Private Limited vs. Union of India and

others
, 2018 SCC Online Bombay 6400 and United Forum

and others vs. The Union of India and others, 2018 SCC
*99* WP DC PROMOTIONS

Online Bombay 2221, to buttress his contention that the Court

should decide an issue if there is a cause of action and should

refrain from taking up an issue which is purely academic in

nature.

57. He has then pointed out paragraphs 4, 7, 8 and 10,

which read thus:-

"4. Learned Advocate General further contends
that the present matter not being a public
interest litigation but a writ petition filed by the
petitioner, the requirement to disclose a cause
of action, is mandatory. He further submits that
the petitioner does not fall within the
expression "aggrieved person" and neither does
he have any direct grievance, for which
reliance is placed upon
Ayaaubkhan Noorkhan
Pathan Vs. State of Maharashtra and others
,
(2013) 4 SCC 465. Further contentions are that
there is no executable prayer; the petition
merely seeking a declaration is not
maintainable. He further submits that only para
54 in the petition, remotely suggests of any
cause of action, which does not satisfy the
requirement of law of any cause in the
petitioner. The petition therefore according to
him is not maintainable and is required to be
dismissed on that count alone."

"7. The right to approach a Court of law by a
party, is intrinsically linked to a cause of
action, accrued in favour of such a party. The
approach, is always for the redressal of a
grievance or an entitlement, the denial of which
gives rise to a cause of action to a party whose
*100* WP DC PROMOTIONS

right is affected by any such cause of action.
Thus, the traditional view as to a "cause of
action" is always personal to the party. The
question whether passing of a legislation by
itself would give rise to a cause of action, has
been considered by the Hon'ble Apex Court in

Rai Bahadur Hurdut Roy Moti Lal Jute Mills

(supra) as under :-

"7. On behalf of the appellant Mr Lal
Narain Sinha has contended that the High
Court was in error in holding that the proviso
to Section 14-A violates either
Article 20(1)
or

Article 31(2)
of the Constitution. He has
addressed us at length in support of his case
that neither of the two articles is violated by the
impugned proviso. On the other hand, the
learned Solicitor-General has sought to support
the findings of the High Court on the said two
constitutional points; and he has pressed before
us as a preliminary point his argument that on
a fair and reasonable construction, the proviso
cannot be applied to the case of the first
respondent. We would, therefore, first deal with
this preliminary point. In cases where the vires
of statutory provisions are challenged on
constitutional grounds, it is essential that the
material facts should first be clarified and
ascertained with a view to determine whether
the impugned statutory provisions are
attracted; if they are, the constitutional
challenge to their validity must be examined
and decided. If, however, the facts admitted or
proved do not attract the impugned provisions
there is no occasion to decide the issue about
the vires of the said provisions. Any decision on
the said question would in such a case be
purely academic. Courts are and should be
reluctant to decide constitutional points merely
as matters of academic importance."

The same has also been considered in Kartar
*101*
WP DC PROMOTIONS

Singh
(supra) as under :-

"12. The standards themselves, it would
be noticed, have been prescribed by the Central
Government on the advice of a Committee
which included in its composition persons
considered experts in the field of food
technology and food analysis. In the
circumstances, if the rule has to be struck down
as imposing unreasonable or discriminatory
standards, it could not be done merely on any
appropriate reasoning but only as a result of
materials placed before the Court by way of
scientific analysis. It is obvious that this can be
done only when the party invoking the
protection of
Article 14
makes averments with
details to sustain such a plea and leads
evidence to establish his allegations. That
where a party seeks to impeach the validity of a
rule made by a competent authority on the
ground that the rules offend
Article 14
the
burden is on him to plead and prove the
infirmity is to well established to need
elaboration. If, therefore, the respondent
desired to challenge the validity of the rule on
the ground either of its unreasonableness or its
discriminatory nature, he had to lay a
foundation for it by setting out the facts
necessary to sustain such a plea and adduce
cogent and convincing evidence to make out his
case, for there is a presumption that every
factor which is relevant or material has been
taken into account in and formulating the
classification of the zones and the prescription
of the minimum standards to each zone, and
where we have a rule framed with the
assistance of a committee containing experts
such as the one constituted under
Section 3
of
the Act, that presumption is strong, if not
overwhelming. We might in this connection add
that the respondent cannot assert any
fundamental right under
Article 19(1)
to carry
*102* WP DC PROMOTIONS

on business in adulterated foodstuffs.

13. Where the necessary facts have been
pleaded and established, the Court would have
materials before it on which it could base
findings, as regards the reasonableness or
otherwise or of the discriminatory nature of the
rules. In the absence of a pleading and proof of
unreasonableness or arbitrariness the Court
cannot accept the statement of a party as to the
unreasonableness or unconstitutionality of a
rule and refuse to enforce the rule as it stands
merely because in its view the standards are too
high and for this reason the rule is
unreasonable. In the case before us there was
neither pleading nor proof of any facts directed
to that end. The only basis on which the
contention regarding unreasonableness or
discrimination was raised was an apriori
argument addressed to the Court, that the
division into the zones was not rational, in that
hilly and plain areas of the country were not
differentiated for the prescription of the
minimum Reichert values. That a distinction
should exist between hilly regions and plains,
was again based on apriori reasoning resting
on the different minimum Reichert values
prescribed for Himachal Pradesh and Uttar
Pradesh and on no other. It was, however, not
as if the entire State of Himachal Pradesh is of
uniform elevation or even as if no part of that
State is plain country but yet if the same
minimum was prescribed for the entire area of
Himachal Pradesh, that would clearly show
that the elevation of a place is not the only
factor to be taken into account."

In
Kusum Ingots
(supra) the Hon'ble
Apex Court held as under :-

"19. Passing of a legislation by itself in our
opinion do not confer any such right to file a
writ petition unless a cause of action arises
*103* WP DC PROMOTIONS

therefor.

21. A parliamentary legislation when it
receives the assent of the President of India and
is published in an Official Gazette, unless
specifically excluded, will apply to the entire
territory of India. If passing of a legislation
gives rise to a cause of action, a writ petition
questioning the constitutionality thereof can be
filed in any High Court of the country. It is not
so done because a cause of action will arise
only when the provisions of the Act or some of
them which were implemented shall give rise to
civil or evil consequences to the petitioner. A
writ court, it is well settled, would not
determine a constitutional question in vacuum."

8. Thus the consistency of judicial opinion, in so
far as it considers the cause of action, for the
purpose of laying a challenge to the
constitutional validity of any statutory
provision, as spelt out from the above decisions,
clearly indicates that the person raising such
challenge, ought to have a cause of action,
which would mean material facts, enabling the
existence of a cause of action."

"10. It is further material to note that the petitioner
also does not fall within the expression
"aggrieved person", as indicated in

Ayaaubkhan Noorkhan Pathan
(supra) in the
following manner :-

"9. It is a settled legal proposition that a
stranger cannot be permitted to meddle in any
proceeding, unless he satisfies the
authority/court, that he falls within the
category of aggrieved persons. Only a person
who has suffered, or suffers from legal injury
can challenge the act/action/order etc. in a
court of law. A writ petition under
Article
of the Constitution is maintainable either
for the purpose of enforcing a statutory or legal
*104* WP DC PROMOTIONS

right, or when there is a complaint by the
appellant that there has been a breach of
statutory duty on the part of the authorities.
Therefore, there must be a judicially
enforceable right available for enforcement, on
the basis of which writ jurisdiction is resorted
to. The Court can, of course, enforce the
performance of a statutory duty by a public
body, using its writ jurisdiction at the behest of
a person, provided that such person satisfies
the Court that he has a legal right to insist on
such performance. The existence of such right
is a condition precedent for invoking the writ
jurisdiction of the courts. It is implicit in the
exercise of such extraordinary jurisdiction that
the relief prayed for must be one to enforce a
legal right. In fact, the existence of such right,
is the foundation of the exercise of the said
jurisdiction by the Court. The legal right that
can be enforced must ordinarily be the right of
the appellant himself, who complains of
infraction of such right and approaches the
Court for relief as regards the same.

10. A "legal right", means an entitlement
arising out of legal rules. Thus, it may be
defined as an advantage, or a benefit conferred
upon a person by the rule of law. The
expression, "person aggrieved" does not
include a person who suffers from a
psychological or an imaginary injury; a person
aggrieved must, therefore, necessarily be one
whose right or interest has been adversely
affected or jeopardised.

11. In Anand Sharadchandra Oka v.

University of Mumbai, a similar view was taken
by this Court, observing that, if a person
claiming relief is not eligible as per
requirement, then he cannot be said to be a
person aggrieved regarding the election or the
selection of other persons."

*105* WP DC PROMOTIONS

58. Shri Kumbhakoni, therefore, submits that unless a

cause of action is intrinsically linked with a litigant in whose

favour a specific right in law has accrued, a court should avoid

entering into the merits of the case in the absence of any cause

espoused by the litigant. He then relies upon
State of Bihar vs.

Rai Bahadur Hurdut Roy Moti Lal Jute Mills and another
,

AIR 1960 SC 378, wherein, the Honourable Supreme Court has

held that any decision on a question which is purely of an

academic nature, would serve no purpose and the Courts should

be reluctant to take up such an issue. He, therefore, sums up that

when both the members of the Tribunal had concurred on there

being no cause of action and the Applicants had not locus standi,

it should not have dealt with the merits of the case.

59. Shri Kumbhakoni has submitted that Writ Petition

No.12699/2022 filed by
Nitin Mahajan vs. The State of

Maharashtra and others
, is not maintainable since the Petitioner

has directly approached this Court praying for reliefs which

could be considered only by the Tribunal.
He relies upon the

judgment delivered by this Court dated 16.02.2022, delivered in

Writ Petition No.12297/2021 (Aurangabad Bench), M/s Mestra
*106* WP DC PROMOTIONS

AG Switzerland vs. The State of Maharashtra and others.

Paragraphs 14, 17, 26 and 27 read as under:-

"14. In the present case, the machinery providing
appeal is sought to be bye-passed by the
petitioner on the ground that the Tribunal
having already pronounced its decision in a
similar matter, substantial justice cannot be
expected from the first appellate authority as
well as from the second appellate authority.
This is the crux of Mr. Sridharan's argument. It
is now time to examine the contentions raised
by him."

"17. Mr. Sridharan is again right, but only partially.

Notwithstanding that questions of fact emerged
for decision in Thansingh Nathmal (supra), the
Supreme Court had the occasion to lay down
therein a principle of law which is salutary and
not to be found in any other previous decision
rendered by it. The principle, plainly is that, if a
remedy is available to a party before the high
court in another jurisdiction, the writ
jurisdiction should not normally be exercised
on a petition under
Article 226
, for, that would
and allow the machinery set up by the
concerned statute to be bye-passed. The
relevant passage from the decision reads as
follows:

"The jurisdiction of the High Court
under
Article 226
of the Constitution is couched
in wide terms and the exercise thereof is not
subject to any restrictions except the territorial
restrictions which are expressly provided in the
Article. But the exercise of the jurisdiction is
discretionary; it is not exercised merely
because it is lawful to do so. The very
amplitude of the jurisdiction demands that it
will ordinarily be exercised subject to certain
self-imposed limitations. Resort to that
jurisdiction is not intended as an alternative
*107* WP DC PROMOTIONS

remedy for relief which may be obtained in a
suit or other mode prescribed by statute.
Ordinarily the Court will not entertain a
petition for a writ under
Article 226
, where the
petitioner has an alternative remedy which,
without being unduly onerous, provides an
equally efficacious remedy. Again the High
Court does not generally enter upon a
determination of questions which demand an
elaborate examination of evidence to establish
the right to enforce which the writ is claimed.
The High Court does not therefore act as a
court of appeal against the decision of a court
or tribunal, to correct errors of fact, and does
not by assuming jurisdiction under
Article 226

trench upon an alternative remedy provided by
statute for obtaining relief. Where it is open to
the aggrieved petitioner to move another
tribunal, or even itself in another jurisdiction
for obtaining redress in the manner provided by
a statute, the High Court normally will not
permit, by entertaining a petition under
Article
of the Constitution, the machinery created
under the statute to be by-passed, and will
leave the party applying to it to seek resort to
the machinery so set up."

"26. To sum up, we are loath to entertain this writ
petition by exercising our discretion because (i)
the petitioner can approach this Court in its
appellate jurisdiction under
section 27
of the
MVAT Act at the appropriate time; and (ii) the
petitioner is free to rely on the decision in

Mahyco Monsanto Biotech (India) Pvt. Ltd.

(supra) before the appellate authority to have
the impugned order reversed since such
decision will prevail, if it is applicable, over
any previous contra decision of the Tribunal."

" 27. However, in the peculiar facts and
circumstances, viz. pendency of this writ
petition on the file of this Court for quite some
*108* WP DC PROMOTIONS

time and that a Constitutional issue touching

Article 286
of the Constitution is sought to be
raised, we are inclined not to relegate the
petitioner to the first appellate remedy but to
give it opportunity to prefer an appeal before
the Tribunal directly, if it so chooses, so that
any infirmity in the impugned order can be
brought to its notice, including the decision of
this Court in the case of
Mahyco Monsanto
Biotech (India) Pvt. Ltd.
(supra), for its
correction. It is ordered accordingly."

60. He has then relied upon Gaurav Ganesh Das Daga

and others vs. MPSC and others, Writ Petition No.2270/2021

(Mumbai Appellate Jurisdiction), wherein, this Court has

delivered a judgment on 04.03.2022, concluding that when the

provisions of the
Administrative Tribunals Act
are applicable and

the Tribunal is a statutory forum, approaching the High Court

should be discouraged. He relies upon paragraph Nos.8, 9, 11,

16, 18, 22 and 23, which read as under:-

"8. Having heard the parties and on consideration of
the decisions cited at the Bar, we find no reason to
take a view different from the one expressed by us
orally on 2nd March, 2022. We completely concur
with the reasons assigned by the coordinate Bench
in Vijay Ghogare (supra) for holding the writ
petition to be not maintainable before the Court at
this stage. In view of such concurrence, we could
have preferred to maintain reticence to assigning
our reasons twice over on the same subject.

*109* WP DC PROMOTIONS

However, we wish to furnish our opinion with a
view to clear certain misconceptions in law while
holding these writ petitions not to be maintainable
before this Court. This, we feel, is required on
noticing the emergence of judicial decisions by
some Courts, based on misreading of the law laid
down in
L. Chandra Kumar
(supra) as well as
T.
K. Rangarajan
(supra), whereby grievances of
State Government employees were entertained at
the first instance upon holding that the remedy
before the Tribunals constituted by the Act is an
alternative to the writ remedy available under

Article 226
of the Constitution.

9. The discussion on the topic must, however, begin
with
Kiran Singh & Ors. vs. Chaman Paswan &
Ors.. It
happens to be one of the vintage decisions
of the Supreme Court referring to the fundamental
principle of law, well established, that a decree
passed by a Court without jurisdiction is a nullity
and that its invalidity could be set up whenever
and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in
collateral proceedings. A defect of jurisdiction,
whether it is pecuniary or territorial, or whether
it is in respect of the subject matter of the action
strikes at the very authority of the Court to pass
any decree, and such a defect cannot be cured
even by consent of parties. The said decision has
been followed in a long-line of decisions to which
reference is considered unnecessary at this stage.
However, we wish to record why such decision is
relevant at a later part of this discussion."

"11. We have found on perusal of the decisions cited by
Mr. Deshmukh that some of the Courts have lost
complete sight of the difference between an
alternative remedy (meaning thereby that, apart
from the High Court, another statutory remedy is
available that provides an equally efficacious
remedy and which could have been pursued by the
litigant, but he elects to explore the writ remedy
since the bar of alternative remedy, being a rule of
*110* WP DC PROMOTIONS

self-imposed limitation, does not oust the writ
court's jurisdiction) and a statutory remedy
(which is provided by the law as the first, nay
only, legal remedy, whereafter the aggrieved party
could pursue, if so advised, the writ remedy
questioning the decision given by the statutory
fora). This position of law would require a little
elaboration in the wake of what the position in
law was prior to the 42nd Constitution
(Amendment) Act, 1976, which introduced Part
XIV A in the Constitution containing
Articles 323-

A and 323-B as well as in the light of what the
Constitution Bench
laid down in

L. Chandra
Kumar
(supra) while inter alia examining
challenges to sub-clause (d) of clause (2) of

Article 323-A
and
section 28
of the Act."

"16. Having regard to such scheme of things,
which could be pursued by an aggrieved
employee, we are also of the firm view that the
law
laid down in

Whirlpool Corporation vs.
Registrar of Trade Marks
(carving out exceptions
on the fulfillment whereof a writ petition could be
directly entertained notwithstanding that the
litigant has not availed the alternative remedy
made available by a statute) cannot be applied to
proceedings seeking to invoke the writ jurisdiction
of the High Court for relief when the subject
matter of the action is covered by "service
matters" as defined in
section 3(q)
of the Act."

"18. Unhesitatingly therefore, we record that the
decision in Magadh Sugar & Energy (supra) does
not assist the case of the petitioners."

"22. Now, we need to come back to
Kiran Singh

(supra) and say why it is relevant for the present
purpose.

In our considered opinion, a decision
rendered by the High Court on a challenge of the
present nature (which is covered by the provisions
of the Act and MAT being the forum required to be
approached for relief) would be a nullity in view
of the decision in
Kiran Singh
(supra) read with
L.
Chandra Kumar
(supra). Knowing and
*111* WP DC PROMOTIONS

understanding what the law is, straining ourselves
to look into the merits of the challenge and
rendering a decision which we know would be a
nullity should not at all be attempted.

23. We ought to deal with one other side argument of
Mr. Deshmukh before recording our conclusion.

He has submitted that since the GRs under
challenge in this batch of writ petitions are also
under challenge in a separate batch of writ
petitions concerning recruitment of engineers in
the Maharashtra State Electricity Distribution
Company Ltd. (hereafter "MSEDCL", for short),
the MAT has no jurisdiction to try such writ
petitions and the same would be required to be
heard and decided on merits by this Court.
However, driving one set of petitioners to move
the MAT while allowing another set of petitioners
to have their claim decided by the High Court
could lead to divergent opinions being rendered.
He, therefore, submits that it is desirable that this
Court hears all the writ petitions analogously."

61. He contends that though the Tribunal at Aurangabad

has taken a particular view, the said Petitioner does not get a

right to bypass the Tribunal and approach this Court directly.

Moreover, the right of the Respondents also has to be considered

since, if the said Petitioner was to succeed before the Tribunal, a

right to test the legality and validity of the judgment delivered by

the Tribunal is available to the Respondents and such right stands

taken away by the Petitioner having directly approached this

Court.

*112* WP DC PROMOTIONS

Shri Kumbhakoni's submissions on the merits of the

cases

62. Shri Kumbhakoni refers to
Section 26
of the

Administrative Tribunals Act to contend that the members of the

Tribunal have to identify the differing points. He relies on

Shekhar Narayan Shetty vs. Madhavlal Pittie and others
,

2015(4) Mh.L.J. 687.

In support of his contention that these

matters deserve to be remitted to the Tribunal for a rehearing, he

relied upon
B. Premanand and others vs. Mohan Koikal and

others
, (2011) 4 SCC 266.

63. Shri Kumbhakoni further contends that since this

Court is exercising supervisory jurisdiction, if there are inherent

deficiencies in the impugned judgment of the Tribunal, this Court

cannot take up the matters as if it is exercising jurisdiction in an

appeal. The conclusions drawn by each member of the Tribunal

cannot be rectified by this Court. He further submits that since

the 'coram' of the Tribunal has changed, it would be fruitful to

remand the matters to the Tribunal for a rehearing.

*113* WP DC PROMOTIONS

64. Shri Kumbhakoni submits that the consultation with

the Maharashtra Public Service Commission (MPSC), is

inevitable and the Tribunal has clearly failed in considering this

aspect. Without concurrence of the MPSC, no promotion can be

legalized/ratified by the State.

Submissions of the learned Senior Advocate Shri

Rajadhyaksha

65. Shri Atul Rajadhyaksha, the learned Senior

Advocate, is leading all the learned Advocates, who are

appearing for the PDC in all these matters. He submits that the

Writ Petitions filed by the State of Maharashtra and the DDC,

will have to be dismissed purely on the ground of non-joinder of

parties. The Tribunal has not been arrayed as a Respondent in the

said petitions. He relies upon the judgment delivered by the

Honourable Supreme Court in
Udit Narain Singh Malpaharia

vs. Additional Member, Board of Revenue, Bihar
, AIR 1963

SC 786 and points out paragraph Nos.8 and 11, which read as

under:-

"8. The next question is, what is the nature of a
*114* WP DC PROMOTIONS

writ of certiorari? What relief can a petitioner
in such a writ obtain from the Court?
Certiorari lies to remove for the purpose of
quashing the proceedings of inferior courts of
record or other persons or bodies exercising
judicial or quasi-judicial functions. It is not
necessary for the purpose of this appeal to
notice the distinction between a writ of
certiorari and a writ in the nature of certiorari;
in either case the High Court directs an inferior
tribunal or authority to transmit to itself the
record of proceedings pending therein for
scrutiny and, if necessary, for quashing the
same. It is well settled law that a certiorari lies
only in respect of a judicial or quasi-judicial
act as distinguished from an administrative act.
The following classic test
laid down by
Lord
justice Atkin, as he then was, in
The Kind v.
Electricity Commissioner
(1924) 1 KB 171 and
followed by this Court in more than one
decision clearly brings out the meaning of the
concept of judicial act:

"Wherever any body of persons having
legal authority to determine questions affecting
the rights of subjects, and having the duty to act
judicially.. act in excess of their legal authority
they are subject to the controlling jurisdiction
of the King's Bench Division exercised in these
writs."

Lord justice Slesser in The King v.

London County Council, (1931) 2 KB 215 (243)
dissected the concept of judicial act
laid down
by
Atkin, L. J., into the following heads in his
judgment: "wherever any body of persons (1)
having legal authority (2) to determine
questions affecting rights of subjects and (3)
having the duty to act judicially (4) act in
excess of their legal authority a writ of
certiorari may issue". It will be seen from the
ingredients of judicial act that there must be a
duty to act judicially. A tribunal, therefore,
*115* WP DC PROMOTIONS

exercising a judicial or quasi-judicial act
cannot decide against the rights of 1 party
without giving him a hearing or an opportunity
to represent his case in the manner known to
law. If the provisions of a particular statute or
rules made thereunder do not provide for it,
principles of natural justice demand it. Any
such order made without hearing the affected
parties would be void. As a writ of certiorari"

will be granted to remove the record of
proceedings of an inferior tribunal or authority
exercising judicial or quasi judicial acts, ex
hypothesi it follows that the High Court in
exercising its jurisdiction shall also act
judicially in disposing of the proceedings
before it. It is implicit in such a proceeding that
a tribunal or authority which is directed to
transmit the records must be a party in the writ
proceedings, for, without giving notice to it, the
record of proceedings cannot be brought to the
High Court. It is said that in an appeal against
the decree of a subordinate court, the court that
passed the decree need not be made a party and
on the same parity of reasoning it is contended
that a tribunal need not also be made a party in
a writ proceeding. But there is an essential
distinction between an appeal against a decree
of a subordinate court and a writ of certiorari
to quash the order of a tribunal or authority: in
the former, the proceedings are regulated by
the
Code of Civil Procedure
and the court making
the order is directly subordinate to the
appellate court and ordinarily acts within its
bounds, though sometimes wrongly or even
illegally, but in the case of the latter, a writ of
certiorari is issued to quash the order of a
tribunal, which is ordinarily outside the
appellate or revisional jurisdiction of the court
and the order is ;set aside on the ground that
the tribunal or authority acted Without or in
excess of jurisdiction. If such a tribunal- or
*116* WP DC PROMOTIONS

authority is not made party to the writ, it can
easily ignore the order of the High Court
quashing its order, for not being, a party, it will
not be liable, to contempt. In these
circumstances whoever else is a necessary
party or not the authority or tribunal is
certainly a necessary party to such a
proceeding. In this case, the Board of Revenue
and the Commissioner of Excise were rightly,
made parties in the writ petition."

"11. The long established English practice, which
the High Courts in our country have adopted
all along, accepts the said distinction between
the necessary and the proper party in a writ of
certiorari. The English practice is recorded in
Halsbury's Laws of England, Vol. 11, 3rd Edn.
(Lord Simonds') thus in paragraph 136:

"The notice of motion or summons must
be served on all persons directly affected, and
where it relates to any proceedings in or before
a court, and the object is either to compel the
court or an officer thereof to do any act in
relation to the proceedings or to quash them or
any order made therein, the notice of motion or
summons must be served on the clerk or
registrar of the court, the other parties to the
proceedings, and (where any objection to the
conduct of the judge is to be made) on the
judge........".

In paragraph 140 it is stated :

"On the hearing of the summons or
motion for an order of mandamus, prohibition
or certiorari, counsel in support begins and has
a right of reply. Any person who desires to be
heard in opposition, and appears to the Court
or judge to be a proper per-son to be heard, is
to be heard not withstanding that he has not
been served with the notice or summons, and
will be liable to costs in the discretion of the
Court or judge if the order should be
*117* WP DC PROMOTIONS

made.........."

So too, the Rules made by the Patna High
Court require that a party against whom relief
is sought should be named in the petition. The
relevant Rules read thus:

Rule 3. Application under
Article 226
of
the Constitution shall be registered as
Miscellaneous judicial Cases or Criminal
Miscellaneous Cases as the case may be.
Rule 4. Application shall, soon after it is
registered, be posted for orders before a
Division Bench as to issue of notice to the
respondents. The Court may either direct notice
to issue and pass such interim order as it may
deem necessary or reject the application.
Rule 5. The notice of the application shall be
served on all persons directly affected and on
such other persons as the Court may direct.

Both the English rules and the rules
framed by the Patna High Court lay down that
persons who are directly affected or against
whom relief is sought should be named in the
petition, that is all necessary parties should be
impleaded in the petition and notice served on
them. In "The law of Extraordinary Legal
Remedies" by Ferris, the procedure in the
matter of impleading parties is clearly
described at p.201 thus:

"Those parties whose action is to be
reviewed and who are interested therein and
affected thereby, and in whose possession the
record of Such action remains, are not only
proper, but necessary parties. It is to such
parties that notice to show cause against the
issuance of the writ must be given, and they are
the only parties who may make return, or who
may demur. The omission to make parties those
officers whose proceedings it is sought to direct
and control, goes to the very right of the relief
sought. But in order that the court may do
*118* WP DC PROMOTIONS

ample and complete justice, and render
judgment which will be binding on all persons
concerned, all persons who are parties to the
record, or who are interested in maintaining the
regularity of the proceedings of which a review
is sought, should be made parties respondent."

This passage indicates that both the
authority whose order is sought to be quashed
and the persons who are interested in
maintaining the regularity of the proceeding of
which a review is sought should be added as
parties in a writ proceeding. A division Bench
of the Bombay High Court in
Ahmedalli V.
M.D. Lalkaka
, AIR 1954 Bom 33 at p 34 laid
down the procedure thus:

"I think we should lay down the rule of
practice that whenever a writ is sought
challenging the order of a Tribunal, the
Tribunal must always be a necessary party to
the petition. It is difficult to understand how
under any circumstances the Tribunal would
not be a necessary party when the petitioner
wants the order of the Tribunal to be quashed
or to be called in question. It is equally clear
that all parties affected by that order should
also be necessary parties to the petition."

A Full Bench of the Nagpur High Court
in Kanglu Baula v. Chief Executive Officer, AIR
1955 Nag 49 (FB), held that though the
elections to various electoral divisions were
void the petition would have to be dismissed on
the short ground that per-sons who were
declared elected from the various
constituencies were not joined as parties to the
petition arid had not been given an opportunity
to be heard before the order adverse to them
was passed. The said decisions also support the
view we have expressed."

*119* WP DC PROMOTIONS

66. He has then relied upon paragraph Nos.31, 38 to 41

and 43 in
Jogendrasinhji Vijaysinghji vs. State of Gujarat and

others
, (2015) 9 SCC 1, which read thus:-

"31. The next facet pertains to the impleadment of
the Court or tribunal as a party. The special
Bench has held that even if application is
described as one not only under
article 226
of
the Constitution, but also under
article 227
, the
Court or tribunal whose order is sought to be
quashed, if not arrayed as a party, the
application would not be maintainable as one
of the relief of certiorari, in the absence of the
concerned tribunal or Court as a party, cannot
be granted. It has also been held that if the
Court or tribunal has not been impleaded as
party- respondent in the main writ petition,
then by merely impleading such Court or
tribunal for the first time in letters patent
appeal would not change the nature and
character of the proceeding before the learned
Single Judge and, therefore, intra-court appeal
would not be maintainable. To arrive at the
said conclusion, the High Court has referred to
Messrs.
Ghaio Mal & Sons v. State of Delhi and
others
, Hari Vishnu Kamath (supra) and relied
upon a four-Judge Bench judgment in Udit
Narain Singh Malpaharia v. Addl. Member,
Board of Revenue."

"38. After so stating, the four-Judge Bench referred
to English practice as recorded in Halsbury's
Laws of England, Vol. 11, 3rd Edn. (Lord
Simonds') and a Division Bench judgment of
the Bombay High Court in
Ahmedalli v. M.D.
Lalkaka
and a Full Bench decision of Nagpur
High Court in Kanglu Baula Kotwal v. Janpad
Sabha, Durg and summarized thus: (
Udit
Narain Singh Malpaharia
case, AIR p.790,
*120* WP DC PROMOTIONS

para 12)
"To summarise: in a writ of certiorari
not only the tribunal or authority whose order
is sought to be quashed but also parties in
whose favour the said order is issued are
necessary parties. But it is in the discretion of
the court to add or implead proper parties for
completely settling all the questions that may
be involved in the controversy either suo motu
or on the application of a party to the writ or
an application filed at the instance of such
proper party."

39. The High Court, as we find, relied on the
aforesaid decision to form the foundation that
unless a Court or a tribunal is made a party,
the proceeding is not maintainable. What has
been stated in Hari Vishnu Kamath (supra),
which we have reproduced hereinbefore is that
where plain question on issuing directions
arises, it is conceivable that there should be in
existence a person or authority to whom such
directions could be issued. The suggestion that
non-existence of a tribunal might operate as a
bar to issue such directions is not correct as the
true scope of certiorari is that it merely
demolishes the offending order and hence, the
presence of the offender before the Court,
though proper is not necessary for the exercise
of the jurisdiction or to render its determination
effective.

40.
In
Udit Narain Singh
(supra), the fulcrum of
the controversy was non- impleadment of the
persons in whose favour the Board of Revenue
had passed a favourable order. There was
violation of fundamental principles of natural
justice. A party cannot be visited with any kind
of adverse order in a proceeding without he
being arrayed as a party.
As we understand in
Hari Vishnu Kamath (supra), the seven-Judge
Bench opined that for issuance of writ of
*121* WP DC PROMOTIONS

certiorari, a tribunal, for issue of purpose of
calling of record, is a proper party, and even if
the tribunal has ceased to exist, there would be
some one incharge of the tribunal from whom
the records can be requisitioned and who is
bound in law to send the records. The larger
Bench has clearly stated that while issuing a
writ of certiorari, the Court merely demolishes
the defending order, the presence of the
offender before the Court though proper but is
not necessary for exercise of jurisdiction. The
said finding was recorded in the context of a
tribunal.

41. In this context, we may profitably refer to the
decision in Savitri Devi (supra) wherein a
three-Judge Bench, though in a different
context, had observed thus:-

"14. Before parting with this case, it is
necessary for us to point out one aspect of the
matter which is rather disturbing. In the writ
petition filed in the High Court as well as the
special leave petition filed in this Court, the
District Judge, Gorakhpur and the 4th
Additional Civil Judge (Junior Division),
Gorakhpur are shown as respondents and in the
special leave petition, they are shown as
contesting respondents. There was no necessity
for impleading the judicial officers who
disposed of the matter in a civil proceeding
when the writ petition was filed in the High
Court; nor is there any justification for
impleading them as parties in the special leave
petition and describing them as contesting
respondents. We do not approve of the course
adopted by the petitioner which would cause
unnecessary disturbance to the functions of the
judicial officers concerned. They cannot be in
any way equated to the officials of the
Government. It is high time that the practice of
impleading judicial officers disposing of civil
proceedings as parties to writ petitions under
*122* WP DC PROMOTIONS

Article 226
of the Constitution of India or
special leave petitions under
Article 136
of the
Constitution of India was stopped. We are
strongly deprecating such a practice.""

"43. As we notice, the decisions rendered in Hari
Vishnu Kamath (supra),
Udit Narain Singh

(supra) and Savitri Devi (supra) have to be
properly understood.
In Hari Vishnu Kamath
(supra), the larger Bench was dealing with a
case that arose from Election Tribunal which
had ceased to exist and expressed the view how
it is a proper party.
In
Udit Narain Singh

(supra), the Court was really dwelling upon the
controversy with regard to the impleadment of
parties in whose favour orders had been passed
and in that context observed that tribunal is a
necessary party.
In Savitri Devi (supra), the
Court took exception to courts and tribunals
being made parties. It is apposite to note here
that propositions laid down in each case has to
be understood in proper perspective. Civil
courts, which decide matters, are courts in the
strictest sense of the term. Neither the court nor
the Presiding Officer defends the order before
the superior court it does not contest. If the
High Court, in exercise of its writ jurisdiction
or revisional jurisdiction, as the case may be,
calls for the records, the same can always be
called for by the High court without the Court
or the Presiding Officer being impleaded as a
party. Similarly, with the passage of time there
have been many a tribunal which only
adjudicate and they have nothing to do with the
lis. We may cite few examples; the tribunals
constituted under the
Administrative Tribunals
Act, 1985
, the Custom, Excise & Service Tax
Appellate Tribunal, the Income Tax Appellate
Tribunals, the Sales Tax Tribunal and such
others. Every adjudicating authority may be
nomenclatured as a tribunal but the said
*123* WP DC PROMOTIONS

authority(ies) are different that pure and simple
adjudicating authorities and that is why they
are called the authorities. An Income Tax
Commissioner, whatever rank he may be
holding, when he adjudicates, he has to be
made a party, for he can defend his order. He is
entitled to contest. There are many authorities
under many a statute. Therefore, the
proposition that can safely be culled out is that
the authorities or the tribunals, who in law are
entitled to defend the orders passed by them,
are necessary parties and if they are not
arrayed as parties, the writ petition can be
treated to be not maintainable or the court may
grant liberty to implead them as parties in
exercise of its discretion. There are tribunals
which are not at all required to defend their
own order, and in that case such tribunals need
not be arrayed as parties. To give another
example:- in certain enactments, the District
Judges function as Election Tribunals from
whose orders a revision or a writ may lie
depending upon the provisions in the Act. In
such a situation, the superior court, that is the
High Court, even if required to call for the
records, the District Judge need not be a party.

Thus, in essence, when a tribunal or authority
is required to defend its own order, it is to be
made a party failing which the proceeding
before the High Court would be regarded as not
maintainable."

67. He then points out
Section 255(4)
of the Income Tax

Act, 1961, which is almost identical to
Section 26
of the

Administrative Tribunals Act, 1985. He refers to
Dynavision

Ltd. vs. Income Tax Appellate Tribunal and others
, 2008 SCC
*124* WP DC PROMOTIONS

Online Mad 1041 : (2008) 304 ITR 350 and adverts to

paragraph Nos.9 to 11 and 13 to 15, which are as under:-

"9. As, there is a difference of opinion between the
members of the Division Bench, they requested the
President under
section 255(4)
of the Act to
constitute a third member for resolving the
opinion expressed by each one of them. According
to the President, there is a difference of opinion
while identifying the differences between the
members of the Division Bench. As there is no
uniformity even in identifying the points, the
President has formulated the points of difference
between the Division Bench-Members and
decided the case on the merits. Aggrieved by the
same, the petitioner has filed W.P. No. 7060 of
2000 challenging the order of the third member.

10. Learned counsel appearing for the petitioner
submitted that the Third member has no right to
go beyond the scope of reference in a matter of
difference of opinion between the judicial member
and the accountant member. He has to consider
only the difference of opinion stated by the
members. So, the third member is wrong in
formulating the questions on his own and
deciding the case as against the assessee. It is,
therefore, submitted that the order passed by the
third member is illegal and without justification
and the same should be quashed. Learned counsel
also submitted that since the third member
exceeded his jurisdiction, the order passed by him
has to be set aside with a direction to the third
member to reconsider the matter afresh and also
further direction to the third member to consider
only the difference of opinion stated by the
respective members..

11. Learned counsel appearing for the Revenue
submitted that even though the third member re-
framed the difference of opinion, the sum and sub
stance of the issue involved is the same, therefore,
*125* WP DC PROMOTIONS

the order of the third member is in conformity
with law and the same should be affirmed. She
further stated that in view of the framing the new
issues by the third member, she has no objection
to remand the matter with a direction to the third
member to consider only the difference of opinion
referred to by the judicial member and the
accountant member."

"13. From a reading of the above section makes
it clear that whenever the members or Bench
differ in opinion on any point, the point shall be
decided according to the opinion of the majority,
if there is a majority. If the members are equally
divided, they shall state the point or points on
which they differ, and the case shall be referred by
the President of the Appellate Tribunal for
hearing on such point or points by one or more of
the other members of the Appellate Tribunal, and
such point or points shall be decided according to
the opinion of the majority of the members of the
Appellate Tribunal who have heard the case
including the persons, who first heard it. The
order of reference to the third member shall
contain the difference of opinion between the
members of the Bench. The President or the third
member has no right to go beyond the scope of
reference and they have to consider only the
difference of opinion stated by the members of the
Bench. Section 255(4) does not vest such power
with the President or the third member. They have
also no right to formulate the question on their
own. Framing the question on their own goes
beyond the jurisdiction. The third member must
confine himself to the order of reference.
Therefore, he has no right to enlarge, restrict and
modify and/or formulate any question of law on
his own on the difference of opinion referred to by
the members of the Tribunal. In this case, the
Judicial and the accountant member had the
difference of opinion and formulated the
*126* WP DC PROMOTIONS

questions. The Third Member in paragraph 2 of
the order has held as follows:

"2. When there is difference of opinion even
while identifying the differences between the
members of the Division Bench, what is to be
done was earlier decided by me as a third member
in a case now found reported in
Chetna
Enterprises v. ITO
, [1999] 238 ITR (AT) 103
(Patna). At page 125 of the reported decision,
after extracting the provision of
section 255(4)
of
the Income-tax Act, I held that in such a case the
solution should be found out as follows:

"It would show that the point or points of
difference shall be referred by the President to a
third member. Suppose, if there is no unanimity
even in identifying the point or points of difference
among the differing members, just like in this
case, then I feel it is the duty of the President to
identify the real points of difference and refer
them to a third member whom he may appoint
under the powers given to him under section
255(4)."

Then, I identified the real differing points
between the differing members and formulated
them for decision of the third member, similarly
following the said precedent, which was not either
disapproved or set aside by the Hon'ble High
Court or Supreme Court, I feel that I should
follow the same procedure even in this case and,
therefore, I went through the whole record, orders
of the differing members and I found out that
following are the points of difference between the
differing Division Bench members and these
differences are to be resolved by the third
member:

1. Whether the assessee debited Rs. 4,59,10,736 to
the purchase account towards customs duty,
added the said sum to the closing stock value and
debited the said sum to the profit and loss
account?

2. When did the liability to pay customs duty arise
*127* WP DC PROMOTIONS

to the assessee?

3. Whether there was change of method of
accounting adopted by the assessee while
accounting customs duty liability in this
assessment year?

4. Whether out of Rs. 4,59,10,736, the assessee
paid Rs. 3,34,13,672 between the date of close of
the accounting year and the date of filing return
by the assessee under
section 139(1)
of the
Income-tax Act for the assessment year 1990-91,
and it is, the asses see was correctly allowed
deduction of Rs. 3,34,13,672 as customs duty paid
under
section 43B
of the Income-tax Act ?
and

5. Whether the impugned sum of Rs. 1,24,97,664
remained to be paid as customs duty and whether
its disallowance under section 438 on the ground
of non-payment within the time allowed under the
provisions of section 438 is correct under law ?"

14. The High Court of Madras, in the case of
ITO v.
Vice-President, ITAT
, [1985] 155 ITR 310,
considered the scope of
section 255(4)
of the
Income-tax Act, 1961, wherein it has been held
that the power of the third member is confined to
giving of a decision on the points on which the
members of the Tribunal had differed and which
had been formulated by them as the question for
the decision of the third member and held as
follows (page 314):

"Admittedly, in this case, the President of
the Appellate Tribunal has referred the matter to
the third member (Thiru D. Rangaswamy) to hear
on the point or points on which the two members
of the Tribunal had differed and on the third
member giving his decision on the point or points
referred to it, the appeal should be taken to have
been decided by the opinion of the majority of the
members of the Appellate Tribunal who have
heard the case including those who first heard it.
Thus, the power of the third member to whom the
*128* WP DC PROMOTIONS

case is referred is confined to giving of a decision
on the point on which the members had differed
and which has been formulated them as a
question for the decision of a third member.

In this case, the third member has
proceeded on the basis that the question referred
by the two members of the Tribunal is wide
enough to enable the assessee to raise additional
points and, therefore, the additional points
pressed by the assessee should be considered.
Even so, we are of the view that the third member
should have pronounced his opinion on the point
of difference as also on the additional points
raised by the assessee. But without doing so, the
third member has remitted the matter to the
original two members of the Tribunal for a fresh
decision. We are of the view that the third member,
who is functioning under
section 255(4)
of the Act
does not have such a power as to direct the two
members of the Tribunal who had differed on the
point referred to the third member, to decide a
particular point or act in a particular manner.
Such a power vests only with an appellate or
revisional authorities, if there are any. The power
of the third member to whom the points of
difference have been referred cannot act as if it
were an appellate authority over the two members
of the Tribunal and direct them to rehear and
dispose of the matter afresh. No doubt, the third
member, in this case, happened to be the Vice-
President. But that will not clothe him with the
power to give directions or remit the matters
while functioning under
section 255(4)
of the Act.
The learned Advocate General appearing for the
assessee would say that
section 255(4)
of the Act
should be read in conjunction with
section 254(1)

of the Act which deals with the powers of the
Appellate Tribunal. According to him, the third
member to whom the points of difference have
been referred, should be taken to have all the
powers of the Tribunal under section 254(1) and
*129* WP DC PROMOTIONS

as such the Tribunal can pass such orders as it
thinks fit. Therefore, the third member has got the
power to pass any order as he thinks fit. The
submission of the learned Advocate-General is in
direct conflict with the language and the object
behind
section 255(4)
of the Act. When section
255(4) says that the third member shall decide the
points of difference referred to him and the
decision of the Tribunal will be as per the
majority opinion, the third member is expected to
give his decision, whatever it is, so that the
majority opinion could be determined for the
purpose of disposal of the appeal before the
Tribunal. If, based on the language of
section
254(1)
of the Act, we were to hold that the third
member can pass any order he likes, then such an
order will not serve the purpose for which
section
255(4)
of the Act was introduced in the statute
book. It is well established that the provisions of
the Act have to be construed harmoniously so as
to give effect to all the provisions of the Act and to
carry out the objects sought to be achieved by the
various statutory provisions. In this case, the third
member has not chosen to give his opinion one
way or the other either on the point of dispute,
i.e., on the mode of computation of the capital
gains or on the new points urged by the assessee
before him. If the third member has entertained
the new points and has given his opinion one way
or the other, as also on the point of dispute
referred to it, it can be said that he has acted
within his jurisdiction, though it may be open to
the Revenue to contend before the appropriate
forum that the third member should not have
entertained the new points which were not urged
before the two members of the original Tribunal.
In this case, as already stated, without giving his
decision on any of the points the third member has
merely remitted the matter to the two members of
the Tribunal for a fresh consideration on all the
points. We do not see how the third member to
*130* WP DC PROMOTIONS

whom the point of dispute is referred under
section 255(4) can claim to have any larger power
than the two members who originally constituted
the Tribunal. The third member has no higher
power or jurisdiction than the members who
originally constituted the Tribunal, and therefore,
the remit order directing them to rehear the matter
will be clearly outside the jurisdiction of the third
member. Hence, we cannot sustain legally the
order of the third member, in this case, remitting
the matter to the two members of the original
Tribunal without expressing any opinion on the
question which he had to consider."

15. Similar view was also taken by the Allahabad
High Court, in the case of
Jan Mohammed v. CIT
,
(1953] 23 ITR 15, and considered the scope of the
provision of
section 5A(7)
of the Act,
corresponding to section 255(4) of the new Act,
wherein it was held that the third member can
decide only the point that had been referred to
him and he cannot formulate the new points
himself and reads as follows (page 25):

"The third member could, therefore, decide
only the point that had been referred to him and
he could not formulate a new point for himself on
which he could base his decision. It appears to us
to be further clear from a reading of the sub-
section quoted above that, after the decision of the
point or points referred to him by the third
Member, the case should go back to the original
Tribunal because so far as we can see, the third
member has not been given any right to decide the
appeal. According to section 5A(6) of the Income-
tax Act, the appeal must be decided by the
Tribunal which must consist of a Bench of not less
than two members. As we have already said, the
point referred to the third member was whether
there could be a presumption legally drawn from
the materials on the record that the bus belonged
to the 'appellant', and on that point the third
*131* WP DC PROMOTIONS

member having agreed with Shri Kalbe Abbas
that no such presumption could be legally drawn,
the majority view was in favour of the assessee.
The last part of
section 5A(7)
of the Act provides
that the point or points have to be decided
according to the opinion of the majority of the
members of the Tribunal who had heard the case
including those who had first heard it. After the
opinion of the third member had been obtained
the case should have gone back to the Tribunal
for its final orders.""

68. He has then referred to H. Chandunmul vs.

Commissioner of Income Tax, 1953 The Indian Law Reports

(Vol.XXXII) Patna Series 445. His contention, therefore, is that

if
Section 26
is to be invoked, it is not for this Court to frame the

points/ divergent opinions, which is for the members of the

Tribunal to formalize. Unless the members set out the points of

difference between the two, this Court cannot frame such points

for reference to the third Member under
Section 26
. As has been

held in H. Chandunmul (supra), even the Chairperson/ President

cannot frame the points and it has to be left to the members of

the Tribunal who have to forward the points on which they differ,

to the Chairperson for adjudication.

*132* WP DC PROMOTIONS

69. In the above backdrop, Shri Rajadhyaksha contends

that if the DDCs desire to invoke
Section 26
of the Act, they

would have to implead the Tribunal as a Respondent in the

present proceedings. This Court will have to issue notices to the

Tribunal calling upon it to explain as to why the points were not

formulated and whether,
Section 26
was lost sight off. After

considering the explanation of the Tribunal, this Court can

conclude on the issue referable to
Section 26
of the Act. He,

therefore, sums up on this issue by contending that the petitions

preferred by the DDCs will have to be dismissed for non joinder

of parties.

Submissions of Shri Rajadhyaksha on the 1977 Rules

70. Shri Rajadhyaksha has contended that Rule 13(5) is

the determination test for deciding the seniority inter-se the

Tahasildar [on promotion to Deputy Collector (PDC)] and the

DDC. The promotional ladder begins from the Tahasildar-

Deputy Collector- Deputy Collector (Selection Grade)-

Additional Collector- Additional Collector (Selection Grade) and

then the Collector.

*133* WP DC PROMOTIONS

71. He contends that the terms 'permanent' post,

'temporary' post and 'officiating' posts are not defined under the

1977 Rules. He adverts to Rule 9(40) "permanent post" and

9(53) "temporary post" of the Maharashtra Civil Services

(General Conditions of Services) Rules, 1981 (for short "the

MCS Rules of 1981"), which read as under:-

"(40) Permanent Post means a post carrying a
definite rate of pay sanctioned without limit of
time."

"(53) Temporary post means a post carrying a
definite rate of pay sanctioned for a limited
time."

"Note- Substantive appointments to
temporary posts should be made in a limited
number of cases only, as for example, when
posts are, to all intents and purposes, quasi-
permanent or when they have been sanctioned
for a period of not less than, or there is reason
to believe that they will not terminate within a
period of three years. In all other cases,
appointments in temporary posts should be
made in an officiating capacity only.

Instruction.- The benefit of substantive
appointments to temporary posts contemplated
in the above note should not be allowed to be
enjoyed by more than one person
simultaneously. Therefore, where a Government
servant has already been appointed
substantively to a temporary post and there is a
temporary interruption in his tenure of the post,
it would not be proper to appoint another
Government servant substantively to the post
during such temporary interruption. For this
purpose, interruptions which are likely to last
for less than 3 years may be treated as
*134* WP DC PROMOTIONS

temporary. It follows, therefore, that where a
Government servant is already appointed
substantively to temporary post a second
Government servant should not be appointed
substantively to it unless the previous holder of
the post has been transferred from it
permanently or unless he has been transferred
temporarily and there is reason to believe that
he will remain absent from the post for a period
of not less than three years."

72. According to him, the definition of 'continuous

service' under Rule 2(d) of the 1977 Rules read with the proviso

there below and Rule 2(i) defining "fortuitous service", would

mean that the service between the commencement of officiating

as a Deputy Collector until the deemed date is granted.

73. He refers to clause 5.2 of the impugned final list

dated 31.12.2020 and points out that the State Government has

taken a conscious decision that it would not take a review of the

PDC under Rule 12. This categoric stand renders the select list as

defined under Rule 2(n), final. He then refers to the definition of

'cadre' under Rule 9(5) and 'officiate' under Rule 9(35) of the

MCS Rules, 1981.

74. He further contends that the quota of Deputy
*135* WP DC PROMOTIONS

Collectors would include the sanctioned strength as well as the

adhoc/ temporary appointments by way of promotions of the

Tahasildars. He adverts to the judgment of the Tribunal delivered

in O.A. No.526/ 2004 dated 17.04.2008 wherein, the Tribunal

has concluded in paragraphs 55 and 56 that the 'quota' would

include both these categories. With this submission, he contends

that the rule of appointing the Direct Deputy Collectors in

between 35% to 50% and commensurate appointments on

temporary promotions of the PDC, would be included in the said

quota. Hence, the number of posts of Deputy Collectors would

not be restricted to 514 for the period 1999 upto 2012.

75. He has relied upon the judgment delivered in
O.P.

Singla and another vs. Union of India and others
, (1984) 4

SCC 450 and has relied upon paragraph Nos.1 to 3, 8 and 16 to

18, which read as under:-

"1. Once again, we are back to the irksome
question of inter se seniority between
promotees and direct recruits. The contestants,
this time, are judicial officers of Delhi. Our
familiarity, generally, with the difficulties in the
way of judicial officers and our awareness of
their just aspirations make our task difficult
and sensitive.

2. The conclusion to which we have come in this
*136* WP DC PROMOTIONS

judgment is not different from the one reached
by our learned Brother Sabyasachi Mukharji.
In this Judgment, Brother Mukharji has
discussed, more fully, the various aspects of this
matter as also the decisions which were cited
before us. Our reasons for writing this separate
opinion are, the general importance of this
case. the fact that it concerns the higher
judiciary and our respectful disagreement with
Brother Mukharji on the interpretation of some
of the provisions with which we are concerned
in these Writ Petitions.

3. There are many decisions bearing upon the
familiar controversy between promotees and
direct recruits and this will be one more.
Perhaps, just another. Since those various
decisions have not succeeded in finding a
satisfactory solution to the controversy, we
would do well by confining our attention to the
language and scheme of the rules which are
under scrutiny herein, instead of seeking to
derive a principle of universal application to
the cases like those before us. Previous
judgments of this Court are, of course, binding
to the extent that they are relevant and they
cannot be ignored. But, if they turn upon their
own facts, the general set-up of the particular
service, its historical development and the
words of the impugned provisions, no useful
purpose will be served by discussing those
cases at length, merely to justify an observation
at the end that they have no application and are
distinguishable."

"8. Rules 7 and 8 which are crucial to the
controversy between the promotees and direct
recruits read thus :

"Rule 7- Regular Recruitment:-

Recruitment after the initial recruitment shall
be made :

(a) by promotion on the basis of selection from
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members of the Delhi Judicial Service, who
have completed not less than 10 years of
Service in the Delhi Judicial Service.

(b) by direct recruitment from the Bar.

Provided that not more than 1/3rd of the
substantive posts in the Service shall be held by
direct recruits."

"Rule 8-(1) The inter-se seniority of members of
the Delhi Judicial Service promoted to the
Service shall be the same as in the Delhi
Judicial Service.

(2) The seniority of direct recruits vis-a-vis
promotees shall be determined in the order of
rotation of vacancies between the direct
recruits and promotees based on the quotas of
vacancies reserved for both categories by Rule
7 provided that the first available vacancy will
be filled by a direct recruit and the next two
vacancies by promotees and so on.""

"16. Logically, we must begin this inquiry with the
question as to the interpretation of the proviso
to Rule 7. Does that proviso prescribe a quota
or does it merely provide for a ceiling ? In
other words, does the proviso require that, at
any given point of time, 1/3rd of the substantive
posts in the Service shall be reserved for direct
recruits or does it only stipulate that the posts
held by direct recruits shall not be more than
1/3rd of the total number of substantive posts in
the Service? The proviso reads thus:

"Provided that not more than 1/3rd of the
substantive posts in the Service shall be held by
direct recruits."

This language is more consistent with the
contention of the promotees that the proviso
merely prescribes, by way of imposing a
ceiling, that the direct recruits shall not hold
more than 1/3rd of the substantive posts.
Experience shows that any provision which is
intended to prescribe a quota, generally
*138* WP DC PROMOTIONS

provides that, for example, "1/3rd of the
substantive posts shall be filled in by direct
recruitment." A quota provision does not use
the negative language, as the proviso in the
instant case does, that "not more than" one-
third of the substantive posts in the Service
shall be held by direct recruits.

17. If the matter were to rest with the proviso, its
interpretation would have to be that it does not
prescribe a quota for direct recruits : it only
enables the appointment of direct recruits to
substantive posts so that, they shall not hold
more than 1/3rd of the total number of
substantive posts in the Service. However, it is
well recognised that, when a rule or a section is
a part of an integral scheme, it should not be
considered or construed in isolation. One must
have regard to the scheme of the fasciculus of
the relevant rules or sections in order to
determine the true meaning of any one or more
of them. An isolated consideration of a
provision leads to the risk of some other inter-
related provision becoming otiose or devoid of
meaning. That makes it necessary to call
attention to the very next rule, namely, rule 8. It
provides by clause 2 that :

"The seniority of direct recruits vis-a-vis
promotees shall be determined in the order of
rotation of vacancies between the direct
recruits and promotees based on the quotas of
vacancies reserved for both categories by Rule
7 provided that the first available vacancy will
be filled by a direct recruit and the next two
vacancies by promotees and so on."

This provision leaves no doubt that the
overall scheme of the rules and the true
intendment of the proviso to Rule 7 is that 1/3rd
of the substantive posts in the Service must be
reserved for direct recruits. Otherwise, there
would neither be any occasion nor any
*139* WP DC PROMOTIONS

justification for rotating vacancies between
direct recruits and promotees. Rule 8 (2), which
deals with fixation of seniority amongst the
members of the Service, provides, as it were, a
key to the interpretation of the proviso to Rule 7
by saying that the proviso prescribes "quotas"
and reserves vacancies for both categories. The
language of the proviso to Rule 7 is certainly
not felicitous and is unconventional if its
intention was to prescribe a quota for direct
recruits. But the proviso, as I have stated
earlier, must be read along with Rule 8 (2)
since the two provisions are inter-related. Their
combined reading yields but one result, that the
proviso prescribes a quota of 1/3rd for direct
recruits.

18. The process of reading the Rules as parts of a
connected whole does not end with Rules 7 and

8. Rules 16 and 17 are also relevant for the
present purpose and have, indeed, an important
bearing on the question of reservation of
vacancies for direct recruits to the extent of
one-third of the substantive posts in the Service.
Clause (1) of Rule 16 confers power upon the
Administrator to create temporary posts in the
Service. By clause (2) of Rule 16, such posts
are required to be filled, in consultation with
the High Court, from amongst the members of
the Delhi Judicial Service, that is to say, the
promotees. Rule 17, which is in the nature of a
non-obstante provision, provides that not
withstanding anything contained in the Rules,
the, Administrator may, in consultation with the
High Court, fill substantive vacancies in the
Service by making temporary appointments
thereto from amongst the members of the Delhi
Judicial Service. The position which emerges
from the provisions contained in Rules 16 and
17 is that it is permissible to create temporary
posts in the Service and, even substantive
vacancies in the Service can be filled by making
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temporary appointments. The twofold
restriction on this dual power is that the High
Court must be consulted and such appointments
must be made from amongst the promotees
only. If temporary appointment to the Service,
either in temporary posts or in substantive
vacancies, can be made within the framework
of the Rules and have to be made, if at all, from
amongst the promotees and promotees only, the
quota rule contained in the proviso to Rule 7
must inevitably break down when such
appointments are made. The simple reason
leading to that consequence is that direct
recruits cannot be appointed either to
temporary posts in the Service or to substantive
vacancies in the Service which are filled in by
making temporary appointments. Thus, even
though the proviso to Rule 7 prescribes a quota
of one-third for direct recruits, Rules 16 and 17
permit the non- observance of the quota rule in
the circumstances stated in these rules."

76. He refers to paragraph Nos.2, 4, 7, 10, 11, 13 and 14

in
V. Bhasker Rao and others vs. State of A.P. and others
,

(1993) 3 SCC 307, which read as under:-

"2. The recruitment to the Andhra Pradesh Higher
Judicial Service (the Service) is governed by
the Rules called "The Andhra Pradesh State
Higher Judicial Service Special Rules" (the
Special Rules). Rules 1, 2, 4 and 6 of the
Special Rules which are relevant are as under:

"Rule 1. Constitution:- The service shall consist
of the following categories:-

Category-1 :- District and Sessions Judges 1st
Grade.

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Category-II :- District and Sessions Judges,
Second Grade including Chairman, Andhra
Pradesh Sales Tax Appellate Tribunal, Chief
Judge, City Civil Court, Additional Chief
Judge, City Civil Court, Chief Judge, Court of
small Causes, Chief City Magistrate,
Chairman, Tribunal for Disciplinary
Proceedings, Presiding Officers, Labour Courts
and Addl. District and Sessions Judges.
Rule 2. Appointment :- (a) Appointment to
Category-I shall be made by promotion from
Category-II and appointment to Category-II
shall be made:-

(i) by transfer from among:-

(a) Sub-Judges in the Andhra State Judicial
Service; or in the Hyderabad State Judicial
Service; and

(ii) by direct recruitment from the Bar:

Provided that 33-1/3% of the total number of
permanent posts shall be filed or reserved to be
filled by direct recruitment.

Explanation:- In the determination of 33-1/3%
of the total number of permanent posts,
fractions exceeding one-half shall be counted
as one and other fractions shall be disregarded.

(b) All promotions shall be made on grounds of
merit and ability, seniority being considered
only when merit and ability are approximately
equal.

Rule 4. Probation:- Every person appointed to
Category-II otherwise than by transfer, shall,
from the date on which he joins duty be on
probation for a total period of one year on duty.
Rule 6. Seniority:- The seniority of a person
appointed to Category 1 or Category 2 shall be
determined with reference to the date from
which he was continuously on duty in that
category.""

"4. On a plain reading of the Special Rules the
salient features of the Service can be culled out
*142* WP DC PROMOTIONS

as under:

(1) Rule 1 provides for the constitution of
the Service. All the posts of District and
Sessions Judges Second grade created from
time to time are part of the Service. The natural
corollary is that the Service consists of
permanent as well as temporary posts.

(2) The recruitment to Category-II of the
service is by transfer from amongst the
Subordinate Judges and also by direct recruits
from the Bar.

(3) 33 1/3% of the total number of
permanent posts in Category-II of the Service
are to be filled by way of direct recruitment.

(4) The seniority under Rule 6 is to be
determined with reference to the date from
which a person is continuously on duty.

Whether the person is continuously on duty
against a temporary post or permanent post is
of no consequence. A person is entitled to the
fixation of his seniority on the basis of
continuous length of service rendered either
against permanent post or temporary post."

"7. Mr. P.P. Rao, learned counsel for the petitioners
has raised the following contentions for our
consideration:

(1) That the Service consists of only
permanent posts under the Special Rules. There
is no provision under the Special Rules for
adding temporary posts to the cadre. The
appointment of respondents to the posts of
District and Sessions Judges Second grade on
temporary basis can at best be treated under
rule 10(a)(i) of the State Rules.

(2) The temporary service rendered by
respondents.4 to 16 being outside the cadre
cannot be counted towards seniority.

(3) Proviso to Rule 2 and Rule 6 of the
Special Rules have to be read together and
doing so the permanent vacancies having been
*143* WP DC PROMOTIONS

made available for respondents 4 to 16 in the
year 1983 their service prior to that date
cannot be counted towards seniority."

"10. Mr. Madava Reddy then contended that the
petitioners were appointed in the years 1981
and since then till the year 1988 twelve
seniority lists have been published showing the
petitioners below respondents 4 to 16. At no
point of time they challenged the seniority lists
in the Court. Even when the writ petitions filed
by Chalapathi and others were pending they
did not intervene before the High Court. The
petitioners, according to Mr. Madava Reddy,
are guilty of gross delay and latches and as
such are not entitled to get relief by way of this
petition under
Article 32
of the Constitution of
India."

"11. We see considerable force in both the
contentions raised by Mr. Madava Reddy. We
are, however, of the view that it would be in the
larger interest of the Service to dispose of this
petition on merits."

"13. Having taken the view that the Service under
the Special Rules consists of permanent as well
as temporary posts the second contention of Mr.
Rao looses its ground. Temporary, posts of
District and Sessions Judges Second grade
being part of the Service the seniority has to be
counted on the basis of length of service
including the service against a temporary post.

14. The third contention of Mr. Rao is mentioned to
be rejected in view of Rule 6 of the Special
Rules. Rule 6 of the Special Rules is in no way
dependent on proviso to Rule 2 of the Special
Rules. Both are to be operative independently.
In the scheme of the rules the seniority rule is
not dependent on the quota Rule. Quota has
been provided for the direct recruits only
*144* WP DC PROMOTIONS

against permanent posts. The seniority rule
permits the counting of total period of service
from the date a person is on duty against a post
in the category. Even though, the petitioners
were appointed substantively to the service
earlier to respondents 4 to 16 but in view of
Rule 6 they cannot be declared senior on the
basis of continuous length of service against
temporary as well as permanent posts
respondents 4 to 16 have been rightly given
seniority above the petitioners."

77. The learned Senior Advocate Shri Rajadhyaksha has

relied upon the following judgments:-

(
a) Income Tax Officer, Company Circle-II, Madras

vs. Vice President, ITAT
, 1983 SCC Online Mad 358.

(b) Jagannath Agarwalla vs. The King, Volume XXIV

Calcutta Weekly Notes 405.

(
c) State of Orissa vs. Minaketan Patnaik
, AIR 1953

Orissa 160 : 1952 SCC Online Orissa 34.

(
d) Miss Leena Khan vs. Union of India and others
,

(1987) 2 SCC 402.

(
e) LIC vs. S.S. Srivastava
, 1988 Supp SCC 1.

(
f) Air India Cabin Crew Association vs.

Yeshaswinee Merchant
, 2003 (6) SCC 277.

(
g) Kusum Ingots & Alloys Ltd. vs. Union of India

*145* WP DC PROMOTIONS

and another, (2004) 6 SCC 254.

(
h) S. Ramanathan vs. Union of India and others
,

(2001) 2 SCC 118.

Submissions of Shri Ajay S. Deshpande

78. Shri Ajay S. Deshpande, the learned Advocate

representing the Petitioners in Writ Petition No.9163/2022

(Samiksha Chandrakar and Pandurang Kulkarni), besides his

oral submissions, has tendered his Written Notes. The gist of his

submissions is as under:-

(a) The Government Resolution dated 31.12.2020

determining the cadre strength has not been challenged.

However, it was incorrectly stated that it was challenged in TA

No.1/2021. For this incorrect statement, Shri Deshpande tenders

an unconditional apology.

(b) The cadre strength is irrelevant because the Rules

refer to 'permanent posts,' not 'cadre strength'. Thus, whether

the cadre strength is 514 or 5014, it does not impact the case.

This Court has to determine only 'permanent post'.

(c) The GR dated 31.12.2020 determining cadre

strength year wise from 1980 onwards, retrospectively, is
*146* WP DC PROMOTIONS

irrelevant. Any retrospective determination of cadre strength or

increase in cadre strength, is disapproved by the Honourable

Supreme Court in
Union of India vs. Hemraj Singh Chauhan
,

(2010) 4 SCC 290.

(d) Merely because PDCs do not challenge the

determination of cadre strength retrospectively, will not

automatically validate the order of determining cadre strength,

retrospectively.

(e) The permanent posts of Deputy Collectors were 413

as of 11.08.1980. The Tribunal erroneously presumed 514 posts.

The Government failed to provide documents justifying this

increase. The PDC never agreed the figure of permanent 514

posts.

(f) 26 posts of Leave Reserve Deputy Collectors have

been abolished and 25 posts of Additional Collectors' cadre have

been created and thus, the total number of permanent posts in the

year 1992, were 383.

(g) The Government has come with a specific case that

514 posts of Deputy Collectors include 'permanent posts' as well

as 'temporary posts' in the cadre, which in fact is a logical stand,

which has not been accepted and endorsed by the Tribunal.

*147* WP DC PROMOTIONS

(h) The prejudice that is caused to the PDCs is because

the Government has considered the 'cadre strength' and

'permanent posts' as synonyms, due to which the number of

'permanent posts' has suddenly increased from 383 in the year

1995 to 514 in 1999. The Government is not able to substantiate

this sudden increase in the 'permanent posts'.

(i) Since the Administrative Tribunal has categorically

recorded a finding that, the promotions of the petitioners herein

are neither 'adhoc' nor by way of 'stop gap arrangement' or in

breach of the Rules, as a necessary corollary thereof, the entire

service rendered by the petitioners will have to be counted for the

purpose of seniority.

(j) Despite acknowledging the Petitioners' valid

promotions, the Tribunal did not appropriately address the

seniority list, resulting in contradictions.

(k) Attempts were made by the PDCs to submit

relevant documents demonstrating the increase in permanent

posts, but the Government did not produce them. Though some

of the documents were produced by the Government, same do

not deal with conversion of the posts of Deputy Collectors into

'permanent posts', but they deal with creation of posts of Deputy
*148* WP DC PROMOTIONS

Collectors on 'temporary basis'.

(l) The Petitioners respect this Court's decision not to

call for additional records from the Tribunal.

(m) One Mr.Waman Kadam, who was senior to

Petitioner No.2 (Pandurang Kulkarni) was given a deemed date

of promotion vide the order dated 24.06.2010. It is only and only

when, the junior is promoted in a substantive capacity, the

question of deemed date comes into play, and not otherwise.

Therefore, on this count as well, promotions of the Petitioners

cannot be considered to be either 'adhoc' or 'fortuitous'.

(n) Government circulars dated 11.06.1993 and

06.06.2002 and the meeting proceedings dated 14.09.2009,

confirm that the Petitioners' promotions were substantive, not

'adhoc'.

(o) The case of Mr. Jairam Vinayak Deshpande decided

by the Tribunal at the Principal Seat in Original Application

No.573/1999 supports the Petitioners' contentions that their

promotions were not 'adhoc'.

(p) On 15.04.1999, the DPC was properly convened

under the Government Resolution dated 03.03.1999, for

considering the claims of the eligible Tahasildars for promotion
*149* WP DC PROMOTIONS

to the posts of Deputy Collectors, which culminated in

promotions of the Petitioners, on 08th and 9th July, 1999. As such,

the Petitioners' promotions followed proper procedures, making

the claim of fortuitous promotions untenable.

(q) The Tribunal's finding regarding ineligibility of the

Petitioners to be considered for promotion, lacks merit, as it

ignored substantial affidavits and evidence on record.

(r) The Petitioners never feared reversion. Therefore,

the observations of the Tribunal about reversion, are absolutely

out of context.

(s) In so far as the nomination of IAS is concerned, the

career-graph in the cadre of Deputy Collectors is significant and

not merely the career-graph of Additional Collectors. This fact

has been lost sight of by the Administrative Tribunal.

(t) Loss of opportunity to be considered for IAS

nomination is indeed a cause, which was required to be taken

into consideration by the Administrative Tribunal. However, it

having failed to consider the same, intervention of this Hon'ble

Court is inevitable.

(u) Once the Tribunal disapproves the method of

determining seniority impugned before it, as an inevitable
*150* WP DC PROMOTIONS

consequence thereof, the impugned seniority list must have been

quashed and set aside. Seniority in the cadre of Deputy

Collectors continues to assume significance, till an incumbent

enters in IAS cadre.

(v) If there is an illegality in determination of seniority,

the question of adjusting equities becomes absolutely irrelevant.

As such, the Tribunal is not expected to adjust the equities, as it

does not have any such powers akin to the powers of the

Honourable Supreme Court under
Article 142
of the Constitution

of India.

(w) In the process of satisfying everybody, although the

Administrative Tribunal disapproved the method of preparing

seniority list and holding the appointments of the Petitioners to

be in a substantive capacity, declining to set aside the impugned

seniority list, is indeed a blunder, warranting intervention of this

Court to subserve the ends of justice and also to set the things in

order by appropriately issuing directions to remove absurdity in

the impugned decision.

(x) Though the Tribunal did not quash the impugned

seniority list, but directed the State Government to remove the

remark 'fortuitous service' against the names of the incumbents
*151* WP DC PROMOTIONS

at Serial Nos.582 to 700. This has resulted in yet another irony,

inasmuch as, junior incumbents to the Petitioners become regular

before the Petitioners and the seniors continue to be adhoc.

(y) The learned Member (Administration) had no

justification to record the findings contrary to the pleadings on

record, once he is a party to the decision rendered with

consensus.

(z) Whether, at any point of time during last 20 years or

more, inclusion of Petitioner No.2 or any of the Petitioners was

ever a subject matter of challenge before any of the Court or

Forum and a candid answer to the query is 'NO'. Therefore, the

issue cannot be permitted to be opened after 20 long years,

during which the Respondents have chosen to accept the

position, without a slightest protest thereto.

(aa) Direct Recruits were given deemed date of

promotion in the cadre of Deputy Collectors much latter in point

of time, than the conferment of Selection Grade on the

Petitioners promotees. Never ever grant of Selection Grade to the

Petitioners PDC was the subject matter of challenge, and

therefore, surreptitious change in the approach of the

Government in the year 2018 or there about, and an attempt to
*152* WP DC PROMOTIONS

advocate the cause of the direct recruits, is beyond

comprehension of a man of ordinary prudence.

(bb) If the permanent posts were 514 since long, then

there was no necessity of appointing the Petitioners as Tahsildars.

Having regard to the number of vacancies available then, from

day one in the year 1994, the Petitioners promotees will have to

be considered or treated as Deputy Collectors. This has a

significance with Sub Rule 2 of Rule 4 of 1977 Rules, which

requires the Government to determine the 'permanent posts' in

the cadre in advance, so as to send a requisition to the Public

Service Commission for selecting particular number of

candidates.

79. We had raised certain queries, which are reflected in

our order dated 28.06.2024. The learned Advocate Shri A.S.

Deshpande submitted that the Petitioners (original Applicants)

are unable to locate from the impugned judgment, despite

reading it over and over again, any such finding concluding that

the Applicants are not aggrieved parties. All the prayers put forth

by them have been considered by the Tribunal, except the prayer

for quashing the impugned seniority list. He adds that, however,
*153* WP DC PROMOTIONS

the Tribunal has observed that the Applicants do not have a

surviving cause of action. This conclusion was founded on the

statement made on behalf of the State Government in it's

affidavit in reply dated 01.02.2022 filed by Mr.Madhav Veer, that

none of the Applicants or the Respondents before the Tribunal

would be reverted and hence, the Tribunal held that the

Applicants do not have a surviving cause of action.

80. Shri Deshpande further submits that the seniority list

dated 31.12.1998, has attained finality and there has been no

challenge to the same. The circular dated 29.06.2010 is a

testimony of the said seniority list being crystallized. This has

also been reiterated in the impugned seniority list vide paragraph

Nos.7.1 and 7.2. Paragraph Nos.11 and 20 of the affidavit in

reply of the State Government before the Tribunal crystallize the

said issue.

81. Shri Rajadhyakshya, the learned Senior Advocate,

submits that it was the statement of the State Government before

the Tribunal that none of the Applicants would be reverted. He

submits that the Petition filed by Nitin Gunaji Mahajan (Writ
*154* WP DC PROMOTIONS

Petition No.12699/2022) concerns the issue as to how the

seniority list in the cadre of Deputy Collectors, which includes

PDC and DDC, ought to be compiled when the class of PDC and

DDC have merged for the first time for the purpose of the

seniority. He points out that the Tribunal has held in the

impugned judgment (paragraph Nos.73-74) that, "The method

adopted by Respondent No.1 to reckon the seniority of PDC from

the date of their absorption in the permanent posts is apparently

contrary to the provisions in the Recruitment Rules. We,

therefore, disapprove the same and declare it to be invalid and

unsustainable."

82. With regard to the fate of the seniority list of Deputy

Collectors dated 31.12.1998, Shri Rajadhyakshya submits that

the same has been finalized on 29.06.2010, which is apparent

from the circular dated 31.12.2020 (clauses 7.1 and 7.2) and

paragraphs 11 and 12 of the affidavit in reply filed by the State.

83. The learned Senior Advocate Shri Apte confirms the

contentions of Shri Deshpande and Shri Rajadhyakshya. He

further points out the circular dated 25.04.2014 and submits that
*155* WP DC PROMOTIONS

the combined seniority list for the period 01.01.1999 to

31.12.2000 was confirmed. Earlier seniority lists have been

referred to while concluding below paragraph No.3 as under:-

"३. सदर ज्येष्ठतासूची म.ना.से. (ज्येष्ठतेचे विनियमन) १९८२ मध्ये

विहित केलेली सर्वसाधारण तत्वे आणि खालील बाबी विचारात घेऊन तयार

करण्यात आली आहे.

१) ज्येष्ठतासूचीत नमूद अधिका-यांपैकी सरळ सेवा प्रविष्ट उप

जिल्हाधिका-यांची महाराष्ट्र लोकसेवा आयोगाने निश्चित केलेल्या गुणवत्ता

यादीप्रमाणे त्यांची आपआपसातील ज्येष्ठता राखण्यासाठी त्यांना

समायोजित दिनांक देऊन ज्येष्ठता निश्चित करण्यात आली आहे.

२) पदोन्नत अधिका-यांच्या बाबतीत सामान्यतः त्यांच्या रुजू

दिनांकानुसार तथापि निवडसूचीतील क्रम कायम ठे वून ज्येष्ठता निश्चित

करण्यात आलेली आहे. परंतु एखाद्या ज्येष्ठ अधिका-यास पदोन्नतीचे आदेश

काढल्यानंतर पदोन्नतीच्या पदावर रुजू होण्यासाठी प्रशासकीय कारणास्तव

विलंब झाला असल्याचे निदर्शनास आणल्यास व आयुक्तांनी त्याची योग्य ती

छाननी केली तर त्यांची आपसातील ज्येष्ठता कायम राखण्यासाठी

आयुक्तांच्या अहवालाप्रमाणे त्यांना समायोजित तारखा देऊन त्यांची ज्येष्ठता

निश्चित करण्यात येईल."

84. Below clauses 4, 5 and 6 of the circular dated

25.04.2014, objections were called for and it was apprised to all
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that the seniority list would be confirmed after considering the

objections.

85. It was after taking into account the objections, the

seniority list for the period 01.01.1999 to 31.12.2000, was

confirmed. He further submits that the DDCs are accepting the

impugned seniority list dated 31.12.2020, but are not in

agreement with the preamble to the extent it maintains that the

seniority list for the period 01.01.1998 to 31.12.1998 is final.

They cannot selectively accept few portions of the seniority list

only to the extent it gives them an advantage. The original

Applicants had prayed for quashing of the seniority list. This

prayer was considered by the Division Bench of the Tribunal and

there is no dispute between the members that the impugned list

does not deserve to be quashed and set aside. He further submits

that the impugned seniority list has been rightly prepared on the

basis of the statutory Rules of 1977.

86. Shri Sapkal, the learned Senior Advocate submitted

in rebuttal, on the basis of the gist set out in the brief written

notes tendered to the Court, that the conditional promotion orders
*157* WP DC PROMOTIONS

have been issued in the past more than three decades and no right

of seniority or pay fixation of the cadre of the Deputy Collector

would accrue in favour of the PDC. Once the original Applicants

have accepted conditional promotion orders, they are estopped

from denying the applicability of the conditions imposed upon

them. Since the State has considered the rules of 1977 framed

under
Article 309
of the Constitution of India, the original

Applicants cannot claim to have entered into the cadre of Deputy

Collectors on the basis of the provisional promotion orders. He

further submits that the seniority list as on 31.12.1998, ought to

have been modified and revised as per paragraph No.6 of the

circular dated 29.06.2010. The seniority list as on 31.12.1998,

cannot be said to have attained finality. Considering the

statement of the State Government before the Tribunal that the

PDC would not be reverted, the State Government has to stand

by it's statement.

CONCLUSIONS

87. We have considered the extensive submissions of the

learned advocates and have referred to the pleadings before the

Tribunal as well as the analysis of the Tribunal in the impugned
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judgment, which also comprises of a separate portion authored

by the learned Member (Administrative). As is visible from the

judgment, both the members have agreed that the Original

Applicants have not suffered any legal injury and yet, the

Tribunal has opened the whole issue that travels over a period of

more than 30 years. It is also obvious that the Tribunal has not

entertained both the Applications and has left the impugned

seniority list, untouched.

88. The first and foremost issue to be considered by the

Tribunal was as to whether, any legal injury was caused to the

original four Applicants. Applicant Nos.1 and 2 were appointed

as Tahsildar and they assumed office on 02.03.1994. Technically,

they completed five years on 01.03.1999. They were appointed as

Deputy Collectors on 08th July, 1999. They were promoted as

Additional Collector on 30.01.2020. Similar is the case of the

two Applicants in T.A. No.02/2021.

89. It is undisputed that they were promoted on

temporary basis. The temporary promotion order of these four

Applicants in the cadre of Deputy Collectors hinges on the fact
*159* WP DC PROMOTIONS

that it was purely a temporary promotion as is mentioned in their

orders as 'निव्वळ तात्पुरत्या स्वरूपात पदोन्नती'. This can neither be

contradicted, nor have the four Applicants adverted to the

contrary. So also, their orders clearly indicate that their

temporary promotion was subject to the approval of the MPSC.

There is no controversy that no such approval was given by the

MPSC as there was no consultation between the DPC and the

MPSC. It was also set out that their temporary promotion would

not create any equities or rights in their favour and that would not

improve their seniority or salary structuring (see paragraph No.8

of this judgment). Be that as it may, the State made a statement

before the Tribunal that, no matter what may be the irregularities

in the ad-hoc promotions of the PDCs, none would now be

reverted. A statement made on behalf of the State Government,

is found in it's affidavit in reply dated 01.02.2022, filed by

Mr.Madhav Veer, that none of the Applicants or the Respondents

before the Tribunal would be reverted. We have every reason to

be circumspect as to how would the State cope up with the huge

mess created by innumerable ad-hoc promotions made over the

past 30 years. Nevertheless, the assurance of the State that none

would be reverted, has dispelled the apprehension of the 4
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Applicants.

90. It cannot be lost sight of, that, if the challenge posed

by these four Applicants is held to be devoid of merits, their

petitions (Transfer Applications) will have to be dismissed. If

their claim is rejected by this Court, the further issues as regards

the legality and validity of the seniority order dated 31.12.2020,

need not be subjected to any further scrutiny.

91.
In
Ajinkya Natha Padwal
(supra), the Bombay

High Court left it open to the State Government to take an

independent decision whether to make promotions on ad-hoc

basis pending finalization of the seniority list. It is undisputed

that several ad-hoc promotions have been effected by the State

Government in the last four decades. The temporary promotion

orders issued to these four Applicants, was under a caveat of the

approval of the competent authority, keeping in view the

language used 'सक्षम प्राधिकरणाच्या मान्यतेने तदर्थ पदोन्नत्या देण्यात

येत आहेत'. It is also undisputed that the first ad-hoc promotion of

these four Applicants from the Tahasildar to Deputy Collector on

09.07.1999, was de-hors the requirement of consultation and
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approval by the competent authority.

92. Under sub-rule (2) of Rule 9 of the 1977 Rules, the

Committee that was constituted by the State with the intent and

purpose of formalizing the select list of Tahasildars so as to be

promoted as Deputy Collectors, was to meet in the month of

September of 1999 and not there before. However, a meeting of

the DPC was held on 15.04.1999 and the select list was prepared,

de-hors Rule 9(2). The DPC, by holding a meeting on

15.04.1999, apparently overlooked possible candidates who

could have been considered if the meeting was held in

September, 1999, under Rule 9(2). The promotion orders were

issued on 09.07.1999. Both the learned Members of the Tribunal

have concluded that there is a deviation from the Recruitment

Rules. The distinction, however, is that the learned Member

(Judicial) treated such deviation as a minor contravention/

irregularity, whereas, the other learned Member (Administrative)

has concluded that the Applicants were not eligible for inclusion

in the final combined seniority list prepared as per Rule 8(4), so

as to be placed for consideration of the DPC, for promoting them

to the cadre of Deputy Collectors.

*162* WP DC PROMOTIONS

93. Considering the submissions of the four original

Applicants, coupled with the submissions of the other non-

Applicants and the Petitioners before us and taking into account

the undisputed fact situation emerging from the record and the

1977 Rules, it cannot be contradicted that the ad-hoc promotion

of the four Applicants (viz. Shivaji T. Shinde appointed as a

Tahasildar on 12.07.1995 and promoted on ad-hoc basis as

Deputy Collector on 30.08.2001,
Sunil V. Yadav
appointed as a

Tahasildar on 08.08.1995 and promoted on ad-hoc basis as

Deputy Collector on 30.08.2001, Samiksha R. Chandrakar

appointed as a Tahasildar on 24.02.1994 and promoted on ad-hoc

basis as Deputy Collector on 08.07.1999 and Pandurang R.

Kulkarni appointed as a Tahasildar on 31.05.1994 and promoted

on ad-hoc basis as Deputy Collector on 08.07.1999), was de-hors

the Rules.

94. It cannot be ignored that 75 days time is required to

prepare the final combined seniority list. These Applicants were

appointed as ad-hoc PDC in the hurriedly convened DPC on

15.04.1999, which is in contravention of the Rules. As such,
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since the final selection list was not formalized in compliance

with the Rules while preparing the select list, these four

Applicants cannot be said to have been appointed as PDC in

deference to the Rules applicable.

95. In this legal and factual backdrop, though the four

Applicants may be aggrieved because of being pushed down by

the impugned seniority list dated 31.12.2020, thereby giving

them a cause to approach the Tribunal, the fact remains that their

grievance is misconceived and unsustainable. Had it been the

case that the placement of these 4 Applicants in the seniority list

of the cadre of Dy. Collectors had some bearing on the ad-hoc

promotion already granted to them, it could have been said that

the cause of action was surviving for them to prosecute the 2

applications. Now, the Applicants have also crossed that hurdle

and have already entered into the cadre of Additional Collector.

As assured by the Government, they are not to be reverted.

96. It cannot be contradicted that, on the one hand, the

State found it convenient to resort to ad-hoc promotions, perhaps

out of necessity, and on the other hand, the State had no reason to
*164* WP DC PROMOTIONS

act in undue haste and prepare the select list, not in ignorance,

but by overlooking and ignoring the 1977 Rules. Even otherwise,

these four Applicants were only engaged as ad-hoc PDC

(temporary promotion as Promotee Deputy Collectors) as a stop-

gap arrangement, which does not justify the contention that they

should be treated as validly promoted Deputy Collectors.

Admittedly, since a select list as prescribed by sub-rule (7) of

Rule 9 was prepared, apparently without consultation with the

MPSC, these four Applicants could not have been in the final

select list. This defeats the claim of these four Applicants to be

treated as being regularly promoted Deputy Collectors w.e.f.

30.08.2001 (first two Applicants) and 08.07.1999 (other two

Applicants) in view of proviso (i) below Rule 10(1) of the 1977

Rules.

97. It is evident that there was no consultation of the

State with the MPSC, while including these four Applicants in

the select list, before determining the final select list of the

Tahsildars under sub-rule 7 of Rule 9. So also, no review of their

services was carried out as per Rule 12 of the 1977 Rules.

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98. The proviso (i) and (ii), to Rule 10(1) of the Rules of

1977, provide for filling up the vacancies in the cadre of Deputy

Collectors purely as a stop-gap arrangement. However, proviso

(i) indicates that only an officer in the cadre of Tahasildar whose

name has been included in the combined final seniority list

prepared under Rule 8(4), could be appointed as a Deputy

Collector on a stop-gap basis. The Applicants were not eligible

for appointment even on stop-gap basis on the post of Deputy

Collector under proviso (i) of Rule 10.

99. On the one hand, though the Rules mandate that the

Applicants deserve to be reverted back to the cadre of Tahasildar,

this would amount to turning the clock back by more than 2

decades, which may lead to multiple administrative

complications. On the other hand, accepting the claim of the

Applicants to grant them seniority w.e.f. their date of joining the

cadre of Deputy Collectors, would amount to injustice to the

DDC. Regularization of the PDC in the combined seniority list

seems to be the only plausible way out which has been
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apparently accepted by most of the PDC, except these four

Applicants.

100.
In a recently delivered judgment by the Honourable

Supreme Court (Coram : Dr.Dhananjaya Y. Chandrachud, Vikram

Nath and B.V. Nagarathna, JJJ) in
Malook Singh and others vs.

State of Punjab and others
(supra), a reference was made by

the Honourable Court to the judgment delivered by the Court in

Direct Recruit Class II Engineering Officers' Association vs.

State of Maharashtra
, (1990) 2 SCC 715, and more particularly

paragraph Nos.13 and 47, reproduced in this judgment in

paragraph No.19 herein above.

It was, thus, concluded in

Malook Singh
(supra), that when the initial appointment is only

ad-hoc and not according to the Rules and made as a stop-gap

arrangement, the officiation in such post cannot be taken into

account considering the seniority.

101.
In
Union of India and another vs. Professor S.K.

Sharma
, AIR 1992 SC 1188, the Honourable Supreme Court

concluded that the seniority of an appointee is to be reckoned

from the date of his regular appointment and not from the day he
*167* WP DC PROMOTIONS

officiated on ad-hoc/ officiating basis.

102. The names of these four Applicants had not been

included in the select list of Tahsildars, if any, as per Rule 9(3)

(iii), since their names did not appear in the final combined

seniority list of Tahsildars which has to be prepared under Rule

8(4). Nevertheless, now that they have become Additional

Collectors and with the assurance from the State that they will

not be reverted, the impugned seniority list, hardly dents their

career chances. Therefore, it can be concluded that the four

Applicants cannot be said to be aggrieved in order to have a

cause to question the impugned seniority list. When the seniority

of these Applicants, was not likely to be adversely affected

because of any change in their position in the impugned seniority

list of Deputy Collectors, in fact, no cause of action would

survive for the said applicants to pray for setting aside the

impugned seniority list.

103. Three judgments of the Supreme Court, viz. (
i)

Union of India and another vs. Prof. S.K. Sharma
, AIR 1992

SC 1188, (ii) Excise Commissioner, Karnataka and another
*168* WP DC PROMOTIONS

vs. V. Sreekanta, AIR 1993 SC 1564 and (iii) P.K. Singh vs.

Bool Chand Chablani and others, AIR 1999 SC 1478, clearly

lay down the law that the 'services rendered on adhoc basis

cannot be considered for the purpose of reckoning seniority'.

104. The Tribunal has unanimously concluded that the

four Applicants did not have any locus-standi to challenge the

impugned final list dated 31.12.2020 and the final seniority list

dated 03.03.2018. These four Applicants were in excess of the

quota and, therefore, they would be eligible for regularization

from the dates a permanent vacancy arose within their quota.

Until then, they would continue to be adhoc appointees and the

day they are absorbed on a permanent vacant post in the cadre,

that would be the day of their entering the Deputy Collector's

quota.

105. The officers who are awaiting their promotion to the

post of Dy. Collector Selection Grade, are working on the post

PDC for more than 17-18 years. As such, we do not apprehend

that the chances of their promotion to the post of Selection Grade

Dy. Collector, could be affected. Once these officers are
*169* WP DC PROMOTIONS

promoted to the post of Dy. Collector Selection Grade, the

criteria would be 'merit' and not 'seniority', for their further

promotion to the post of Additional Collector.

106.
In
M.S.L. Patil, Asstt. Conservator of Forests,

Solapur (Maharashtra) and others vs. State of Maharashtra

and others
, (1996) 11 SCC 361, it is observed that even if many

years have passed in the PDC cadre, if there is no review, the

result of returning back as Tahsildar, has to follow. However, this

would have disastrous effects on every PDC and DDC. Noticing

this impact, the State Government declared before the Tribunal

that none of the these officers would be reverted, which includes

the 4 Applicants before the Tribunal.

107. The direction issued by the Tribunal to prepare a

fresh seniority list from 2004, was nobody's prayer before the

Tribunal. So also, this would surely impact those PDCs/DDCs,

who were not before the Tribunal. Moreover, when the Tribunal

has held that the four Applicants did not have the 'locus standi'

and had no cause of action, it could not have granted any relief

indirectly to the Applicants, which they could not have been
*170* WP DC PROMOTIONS

granted directly.

108. The effect of the irregularities in the ad-hoc

promotions of the 4 Applicants is writ large. The Tribunal has

dealt with the factors indicating the irregularities in details. We

have, as well, adverted to the same as we recorded the

contentions of the learned Advocates, elaborately. While

exercising Supervisory jurisdiction and not Appellate

jurisdiction, we cannot interfere in a judgment only because a

different view is possible, and more so when a plausible view has

been taken.

109. In the backdrop of this settled position of law, we

have considered the views expressed by the two learned

Members of the Tribunal. Much ado has been made by the

litigating parties before us, contending that two divergent views

have been expressed by the two learned Members. We do not

entirely agree with this submission. Both the learned Members

have expressed their findings in different ways. Finally, the

learned Member (Administrative) has handed down a concurring

judgment.

*171* WP DC PROMOTIONS

110. We agree with the view taken by the Tribunal that

the very transition of these 4 Applicants, from Tahsildars to

promotee deputy Collectors, is an irregularity. The seniority list

dated 31.12.1998, has attained finality and there has been no challenge

to the same. The circular dated 29.06.2010 is a testimony of the said

seniority list being crystallized. This has also been reiterated in the

impugned seniority list vide paragraph Nos.7.1 and 7.2. Paragraph

Nos.11 and 20 of the affidavit in reply of the State Government before

the Tribunal, crystallized the said issue. In the light of the same, the

impugned final seniority has been settled. The grievance of these

4 Applicants is, therefore, baseless and does not deserve

consideration. Except these 4, all other PDCs have accepted the

impugned seniority list.

111. We need to consider another angle, as to whether the

Tribunal could have made suggestions and issued directions,

when it had come to a conclusion that both the Applications

deserved to the rejected. Once the Tribunal came to a conclusion

that the grievance of the 4 Applicants is unsustainable, it should

not have travelled any further as their Applications deserved no
*172* WP DC PROMOTIONS

consideration. Therefore, issuing guidelines and suggestions, was

unwarranted, more so, when all those who would be affected by

such suggestions or directions, were not before the Tribunal.

112. Consequentially, when the challenge posed by the

four Applicants had been rejected, the Tribunal could not have

travelled beyond their prayers. Since we have concluded that

both the Transfer Applications of these four Applicants deserve to

be rejected, the suggestions put forth by the Tribunal below

paragraph No.87 and the consequential order below paragraph

No.88, deserve to be quashed. There was no reason, in our view,

for the learned Tribunal to make suggestions when the impugned

seniority list was not to be interfered with or set aside.

113. The law is clearly
laid down in

Kusum Ingots

and Alloys Limited vs. Union of India and another
, 2004 (
6)

SCC 254, Jotun India Private Limited vs. Union of India and

others
, 2018 SCC Online Bombay 6400 and United Forum

and others vs. The Union of India and others, 2018 SCC

Online Bombay 2221, that the Court should decide an issue if

there is a cause of action and should refrain from taking up an
*173* WP DC PROMOTIONS

issue which is purely academic in nature.

114. In view of our conclusions in this judgment and as

both the Transfer Applications fail, we have no reason to deal

with the other contentions made by the private parties/ Petitioners

before us. The grievance of these four Applicants as against the

impugned seniority list dated 31.12.2020, is unsustainable. Both

the Transfer Applications, on this ground, deserve to be

dismissed.

115. Writ Petition Nos.11692/2022 and 11762/2022,

filed by the State, are allowed. Accordingly, the two Transfer

Applications stand dismissed. Consequentially, the suggestions/

directions issued by the learned Tribunal in paragraph Nos.87

and 88, are quashed and set aside. Rule is made absolute in

these two petitions.

116.
In view of the above analysis and our conclusions,

Writ Petition No.12699/2022, filed by
Mr. Nitin Mahajan v/s

State of Maharashtra and others
, does not deserve consideration.

Moreover, with our conclusions recorded above, no purpose
*174* WP DC PROMOTIONS

would be served in entertaining this Petition. Therefore, Writ

Petition No.12699/2022, stands disposed off. Rule is

discharged in this petition.

117. In view of the above, Writ Petition No.9163/2022

(filed by Samiksha Ramakant Chandrakar and another), Writ

Petition No.9631/2022 (filed by Vijaysingh Shankarrao

Deshmukh), Writ Petition No.9632/2022 (filed by Tushar

Eknath Thombre), and Writ Petition No.12675/2022 (filed by

K. K. Suryakrishnamurty), are dismissed. Rule is discharged in

these four petitions.

118. After this judgment was pronounced, the learned

Senior Advocate Shri Rajadhyaksha, representing the Petitioner

in Writ Petition No.12699/2022, Shri Ajay S. Deshpande, the

learned Advocate representing the Petitioners in Writ Petition

No.9163/2022 and Shri Avinash S. Deshmukh, the learned

Advocate, representing Respondent Nos.3 and 4 in Writ Petition

No.9632/2022 and Respondent Nos.1 and 2 in Writ Petition

No.11692/2022, prayed for staying the operation of this

judgment.

*175* WP DC PROMOTIONS

119. The learned Senior Advocate Shri R.S. Apte,

representing the State of Maharashtra as a Special Counsel along

with the learned Senior Advocate Shri P.R. Katneshwarkar and

the learned Senior Advocate Shri V.D. Sapkal, submit that the

Original Applications (Transfer Application Nos.1/2021 and

2/2021), were dismissed by the learned Maharashtra

Administrative Tribunal vide the impugned judgment dated

26.08.2022. There has been no protective order passed by the

learned Tribunal thereafter. When the parties reached this Court

in these petitions, there was no interim order operating. At the

same time, the judgment of the learned Tribunal impugned in

these petitions, was also not stayed.

120. The learned Senior Advocate Shri Rajadhyaksha and

the learned Advocate Shri Deshpande, raised a question as to

why did the State not issue any orders of promotion when there

were no prohibitory orders from this Court. In our view, this

question cannot be posed to the Court. It is between the parties

and the State. This Court had never passed any order in the

nature of either staying the judgment of the Tribunal or
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injuncting the State Government from issuing promotion orders.

121. In fact, the learned Senior Advocate Shri Apte had

suggested before this Court on 31.01.2024 that any further

development that may take place with regard to the promotions

of eligible candidates, can be made subject to the result of these

petitions. In short, neither the judgment of the learned Tribunal

dismissing the Original Applications, was kept in abeyance, nor

had this Court issued any injunctory order. We have not issued

any order or direction to any of the parties before us. We have

only upheld the verdict of the Tribunal, which had dismissed the

2 proceedings before it. Hence, no orders.

(Y.G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)

(Kalyan Sangvikar, PS)