SUDHAKAR BABURAO NANGNURE versus NORESHWAR RAGHUNATHRAO SHENDE & ORS.

[2019] 4 S.C.R. 945

SUDHAKAR BABURAO NANGNURE

NORESHWAR RAGHUNATHRAO SHENDE & ORS.

(Civil Appeal Nos. 2468-2470 of 2019)

MARCH 05, 2019

[DR DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Service Law – Promotion – ‘Catch-up’ Rule – Appellant,belonging to open category, joined service as Planning Assistantin the Government of Maharashtra – Appellant and the firstrespondent, Scheduled Caste, selected for the post of Town Planneron 1[st] July, 1992 – Appellant promoted as Deputy Director of TownPlanning (DDTP) on 1[st] November, 2003– First respondent promotedas DDTP on 3[rd] August, 2006 – In the promotional cadre of JointDirector of Town Planning (JDTP), the first respondent was promotedon 11[th] August, 2011 while the appellant was promoted as JDTP on2[nd] July, 2013 – Appellant filed OA before the MaharashtraAdministrative Tribunal – In the meanwhile, the first respondentwas promoted as Director of Town Planning (DTP) on 30[th] April,2016 – OA allowed – High Court set aside the said decision –Appellant filed Special Leave Petition – Withdrawn – Appellant filedreview before the High Court – Dismissed – Appellant’s case thatonce he was promoted as JDTP, the ‘catch-up’ rule must governand consequently, he must gain seniority over the first respondentand that the first respondent was not entitled to claim consequentialseniority on the basis of his earlier promotion in the cadre of JDTP– Held: Preliminary objection to the present appeal that recourseto Supreme Court was barred after the High Court decided thereview petitions, not accepted – Government Resolution dated 20[th]October, 1997 was issued stipulating that an officer belonging toBackward Class will retain seniority in the promotional cadre andthat it was not necessary to revise the seniority – GR dated 20[th]March, 2003 was issued referring to the said GR clarifying thatthe seniority between backward class and non-backward classcandidates in government service in the promotional cadre wouldbe governed by the regular date of promotion – Incorporating the

Aprinciple of consequential seniority, GR dated 20[th] March, 2003adverted to r.4, 1982 Rules which stipulated that seniority in postis determined by the length of continuous service – Further, GRdated 20[th] March 2003 has not been abrogated upon the enactmentof the 2004 Act – Said GR was not challenged before the Tribunal– Such challenge cannot be entertained at this stage – Further,Beligibility has to be considered on the date of the occurrence of thevacancy – On 30[th] April, 2016, the appellant did not fulfill theeligibility of three years’ experience as JDTP, required for the postof DTP – Seniority by itself cannot prevail where senior lackseligibility for promotion – Even if accepted, the applicability of theCcatch-up rule will also not obviate the requirement of the appellantfulfilling the condition of eligibility for promotion, on the date whenthe vacancy occurred – Appellant has also not challenged theappointment of the first respondent as JDTP – Judgment of the HighCourt does not call for interference – Maharashtra Civil Services(Regulation of Seniority) Rules, 1982 – r.4 – Maharashtra StateDPublic Services Reservation for Scheduled Castes, Scheduled Tribes,Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special BackwardCategory and Other Backward Classes Act, 2001 [Act VIII of 2004]– ss. 3-6, 11 - Directorate of Town Planning and Valuation(Recruitment) Rules, 2011 - r-3 - Consitution of India - Art. 16.EService Law – Promotion – Seniority and Eligibility – Held:Seniority and eligibility are distinct concepts in service jurisprudence– Seniority by itself cannot prevail where senior lacks eligibilityfor promotion to higher post.Theappellant, belonging to open category, joined the serviceFas Planning Assistant in the Government of Maharashtra. Theappellant and the first respondent, Scheduled Caste, wereselected for the post of Town Planner on 1[st] July, 1992. Appellantwas promoted as Deputy Director of Town Planning (DDTP) on1[st] November, 2003 and the first respondent was promoted asGDDTP on 3 Aug. 2006. In the promotional cadre of Joint Directorof Town Planning (JDTP), the first respondent was promoted on11[th] August 2011 while the appellant was promoted as JDTP on2[nd] July, 2013. The appellant filed OA before the MaharashtraAdministrative Tribunal. In the meanwhile, the first respondent

was promoted as Director of Town Planning (DTP) on 30[th] April,2016. OA was allowed. The High Court set aside the said decision.Appellant filed Special Leave Petition, which was withdrawn withthe liberty to file review petition before the High Court. Appellantfiled review petition before the High Court, which was dismissed.Hence, the present appeals.

Dismissing the appeals, the Court

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

1.1 On 20 October 1997, Government Resolution wasissued stipulating that an officer belonging to Backward Classwill retain seniority in the promotional cadre and that it is notnecessary to revise the seniority. On 20 March 2003, anotherGR was issued inter alia with reference to the earlier GR notedabove. The GR states that following the amendment to Article16 by the insertion of Clause (4A), it has been decided that theinstructions for regulating seniority of officers belonging to theBackward Classes and the general category in the promoted cadrewould be governed by the earlier Government Resolutions dated21 June 1982 and 20 October 1997. The GR clarified that theseniority between backward class and non-backward classcandidates in government service in the promotional cadre wouldbe governed by the regular date of promotion. [Paras 49, 50][978-E; 979-A-B]

1.2 The GR dated 20 March 2003 was issued after theconstitutional amendment to Article 16 (4A) by whichconsequential seniority was incorporated into that provision.Maharashtra State Public Services Reservation for ScheduledCastes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),Nomadic Tribes, Special Backward Category and Other BackwardClasses Act, 2001 [Act VIII of 2004] (Reservation Act 2004) wasenacted by the State legislature in 2001. The assent of theGovernor was received on 20 January 2004 and it was publishedin the Official Gazette on 22 January 2004. The enactment hascome into force after the 85th constitutional amendment. Priorto the enforcement of the Act, reservations were confined uptothe entry level in Group I posts. As result of the enactment of

Athe law, reservations are applicable to all appointments in publicservices and posts [except categories covered by clauses (a) to(d) of sub-section (1) of Section 3]. Section 3 deals with theapplicability of the Act and Section 4 deals with reservation andpercentages. [Paras 52-54] [980-A, F-G; 981-A]

B1.3 Sub-section (1) of Section 5 stipulates that reservationin promotion shall be at all stages of promotions. Consequently,promotions within Class I posts are also governed by the rule ofreservation. provision for reservation can be incorporated inan executive order. The Reservation Act has not dealt with issueof consequential seniority. Sub-section (2) of Section 5 savesCgovernment orders providing for reservation of any posts to befilled in promotion which were in force on the date of the enactmentof the Act. Similarly, the proviso to sub-section (1) of Section 6saves government orders regarding the filling up of unfilled postsreserved for Backward Class candidates in force on the date ofDthe commencement of the Act. The GR dated 20 March 2003deals with the determination of seniority while sub-section (2) ofSection 5 deals with orders providing for reservation. The GRdated 20 March 2003 is not government order which falls withinthe purview of either sub-section (2) of Section 5 or the proviso

to sub-section (1) of Section 6. However, the enactment of theEAct by the state legislature cannot be construed as legislativeintent to override or abrogate the principle of consequentialseniority incorporated in government resolutions. provisionfor consequential seniority can certainly be incorporated in an

executive order issued in pursuance of the provisions of ArticleF162 of the Constitution. The Government Resolution dated 20March 2003 has not been abrogated upon the enactment of theReservation Act 2004. The Reservation Act 2004 does not dealwith the principle of consequential seniority. It would beimpermissible to read the Act as having superseded the applicablegovernment orders on consequential seniority, in the absence ofGclear words providing for such an effect. [Paras 56, 59 and 60][982-H; 983-E-H; 984-A-C]

1.4 The GR dated 20 March 2003, while incorporating theprinciple of consequential seniority, reiterated the GR dated 20October 1997. It also adverts to the Seniority Rules 1982 of whichH

Rule 4 specifically stipulates that the length of continuous servicewill be determinative of seniority in respect of posts and cadresin the service. challenge to the GR dated 20 March 2003 isconspicuous by its absence in the reliefs which were sought beforethe Maharashtra Administrative Tribunal. Entertaining challengeto the validity of Government Resolution incorporating theprinciple of consequential seniority without specific challengebeing addressed before the Tribunal would simply beimpermissible. Entertaining such challenge at this stage willhave serious consequences in the entire State of Maharashtra byupsetting significant number of promotions which may havealready been granted to candidates belonging to the reservedcategory. The State government, in the pleadings before theTribunal and the High Court was not called upon to justify thebasis of its decision to adopt consequential seniority in theabsence of challenge being squarely set up in the forum of firstinstance. challenge to the resolution providing for consequentialseniority is indeed serious matter. Such challenge calls uponthe court to upset policy circular which has been issued withthe avowed objective of safeguarding consequential senioritywhich was, as the constitutional history indicates, clear purposeunderlying the 85th Amendment to the Constitution. Suchconstitutional challenges cannot be bandied about without specificpleadings. Such an exercise would be impermissible in theabsence of frontal challenge. [Paras 62, 64 and 65] [984-E-F;985-C-F]

1.5 In the present case, there is specific provision forconsequential seniority in the GR dated 20 March 2003. Absenta challenge to the GR in the proceedings which were initiatedbefore the Tribunal, such challenge cannot be entertained atthis stage. [Paras 70] [987-B]

1.6 Eligibility has to be considered on the date of theoccurrence of the vacancy. On 30 April 2016, the appellant didnot fulfill the eligibility required for the post of DTP. In assailingthe decision of the first respondent, the appellant has submittedthat the promotion of the first respondent as JDTP on 11 August2011 was under circular dated 27 October 2008 which has beenstruck down by the Bombay High Court. The High Court in

Adealing with this submission has held that the order of promotion,when it was issued on 11 August 2011 had an imprint of legality.Moreover, even the appellant adopted the position that sincepromotion was given to the first respondent in terms of theGovernment Circular dated 27 October 2008, he believed thathe had no reason to object to the seniority list of JDTP publishedBon 28 August 2014. That apart, the High Court has noted thatafter the promotion of the first respondent on 11 August 2011,the appellant was promoted on 2 July 2013 and it was only whenthe second seniority list was finalized on 15 January 2016 thatthe appellant filed an OA in February 2016. In the meantime, theCappellant had worked as JDTP for period of nearly five years.The delay has, justifiably weighed with the High Court. Coupledwith this is an equally relevant consideration which must weighwith the court: the appellant has not challenged the appointmentof the first respondent as JDTP. Having failed to challenge theappointment, it is now not open to the appellant to assert that theDappointment must be treated as void on the ground that thecircular on the basis of which the first respondent was promotedhas subsequently been set aside in judgment of the BombayHigh Court.[Paras 78, 79] [990-D-G; 991-A-B]

1.7 The appointment of the first respondent as JDTP hasEnot been assailed in the OA filed before the Tribunal.Consequently, it is not open to the appellant to lay challenge onthe ground that the appointment was based on circular whichwas held to be invalid after the appointment was made. Thesubmission that the appointment is fortuitous within the meaningFof Rule 3(f) is but another modality of seeking to deprive the firstrespondent of the consequence of his appointment and to hisconsequential seniority. The fact that the vacancy occurred on30 April 2016, on the retirement of the then DTP has not beendisputed in the course of the submissions of the appellant. Onthe date when the vacancy occurred, the appellant clearly did notGfulfill the eligibility criterion of three years’ experience as JDTP.The appellant who was promoted on 2 July 2013 did not fulfill thecriterion prescribed by Rule 3, Directorate of Town Planning andValuation (Recruitment) Rules 2011. Seniority and eligibility are

distinct concepts in service jurisprudence. Seniority by itselfcannot prevail where senior lacks eligibility for promotion to ahigher post. Even if the contention of the appellant on theapplicability of the catch-up rule were to be accepted, that willnot obviate the requirement of his fulfilling the condition ofeligibility for promotion to the next higher post, on the date whenthe vacancy occurred. [Paras 80-82] [991-C-D, F-G, 992-E-F]

1.8 The appellant failed to challenge the appointment ofthe first respondent as JDTP on 11 August 2011. The appellantfailed to challenge the circular dated 20 March 2003 providingfor consequential seniority. The substratum of the challenge whichhas been developed before Supreme Court is without basis inthe pleadings. The ingenuity and industry of the learned counselwho appeared on behalf of the appellant cannot, in the ultimateanalysis, be substitute for deficient pleading. The appellantdid not at any stage challenge the appointment of the respondentto the post of JDTP nor did he challenge the GR dated 20 March2003 providing for consequential seniority. The appellant wasnot eligible for the post of DTP on 30 April 2016, when the vacancyoccurred. He cannot, hence, challenge the appointment of thefirst respondent. The judgment of the High Court does not callfor any interference. [Paras 83, 85 and 86] [992-F-G; 993-D-E]

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

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

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

1.10 In view of the judgment in Civil Appeals @ SpecialLeave Petition (Civil) Nos. 8769-8771 of 2018, these MAs aredisposed of, in terms of the judgment and order in the leadappeals. [994-B]

Suseel Finance & Leasing Co. v. M Lata (2004) 13 SCC675;Abhishek Malviya v. Additional Welfare

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

Indra Sawhney v Union of India (1992) 3 Suppl. SCC217 : [1992] 2 Suppl. SCR 454 – followed.

Maharashtra Chamber of Housing Industry v MunicipalCorporation of Greater Mumbai Decision dated16th August 2016 in SLP (C) No.024660 & 024661of 2016;R Prabha Devi v Union of India (1988) 2SCC 233:[1988] 3 SCR 147 – relied on.

M Nagaraj v Union of India (2006) 8 SCC 212;MagasVarga Karmachari Adhikari Suraksha Mahasangh vState of MaharshtraDecision of Bombay High CourtinWrit Petition No. 3077 of 2011; Union of India vVirpal Singh Chauhan (1995) 6 SCC 684 : [1995] 4Suppl. SCR 158; Ajit Singh Januja v State of Punjab(1996) 2 SCC 715 : [1996] 3 SCR 125 ; Jagdish Lal vState of Haryana (1997) 6 SCC 538 ;Ajit Singh (II) v.State of Punjab (1999) 7 SCC 209 : [1999] 2 Suppl.SCR 521; Jarnail Singh v. Lachhmi Narain Gupta(2018) 10 SCC 396; Suraj Bhan Meena v State ofRajasthan (2011) 1 SCC 467 : [2010] 14 SCR 532;Uttar Pradesh Power Corporation Limited v. RajeshKumar (2012) 7 SCC 1: [2012] 4 SCR 118; S PanneerSelvam v. State of Tamil Nadu (2015) 10 SCC 292;B K Pavitra v. Union of India (2017) 4 SCC 620 : [2017]1 SCR 631;Gaurav Pradhan v State of Rajasthan(2018) 11 SCC 352 : [2017] 8 SCR 951; Roshan Lalv .International Airport Authority of India (1980) Suppl.SCC 449; P Chitharanja Menon v. Balakrishnan(1977) 3 SCC 255 : [1977] 3 SCR 687; AmarjeetSingh v. Devi Ratan (2010) 1 SCC 417 : [2009] 15SCR 1010;Palure Bhaskar Rao v. P Ramaseshaiah(2017) 5 SCC 783 : [2017] 3 SCR 226;Sanjay KSinha-II v. State of Bihar (2004) 10 SCC 734 : [2004]

SUDHAKAR BABURAO NANGNURE v. NORESHWARRAGHUNATHRAO SHENDE

2 Suppl. SCR 834 ;Bhupendra Nath Hazarika v. Stateof Assam (2013) 2 SCC 516 : [2012] 12 SCR 587;PVGeorge v. State of Kerala (2007) 3 SCC 557 : [2007] 1SCR 1198 ; BA Linga Reddy v. Karnataka StateTransport Authority(2015) 4 SCC 515 – referred to.

Case Law Reference

(2006) 8 SCC 212(2004) 13 SCC 675(2008) 3 SCC 108[2012] 8 SCR 1089(2014) 7 SCC 701[2016] 1 SCR 266[1992] 2 Suppl. SCR 454[1995] 4 Suppl. SCR 158[1996] 3 SCR 125(1997) 6 SCC 538[1999] 2 Suppl. SCR 521(2018) 10 SCC 396[2010] 14 SCR 532[2012] 4 SCR 118(2015) 10 SCC 292[2017] 1 SCR 631[2017] 8 SCR 951(1980) Suppl. SCC 449[1977] 3 SCR 687[2009] 15 SCR 1010[1988] 3 SCR 147[2017] 3 SCR 226

[2019] 4 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2468-2470 of 2019.

From the Judgment and Order dated 21.03.2018 of the High Courtof Judicature at Bombay in Review Petition No. 17 of 2018 in WritCPetition No. 9291 of 2016, Review Petition No. 18 of 2018 in Writ PetitionNo. 8859 of 2016 and Review Petition No. 19 of 2018 in Writ PetitionNo. 8860 of 2016.

With

DCivil Appeal Nos. 2471-2473 of 2019 And M.A. Nos. 2983-2985of 2018 in S.L.P.(Civil) Nos. 33086-33088 of 2017.

Chander Uday Singh, Paramjit Singh Patwalia, V. Giri, R.P. Bhatt,Sanjay R. Hegde, Sr. Advs., Sagar N. Pahune Patil, Gopal BalwantSathe, Ravindra Keshavrao Adsure, Siddheshwar N. Biradar, Ms.ENatasha Dalmia, Nishant Ramakantrao Katneshwarkar, Makarand D.Adkar, Braj K. Mishra, Vijay Kumar, Mustafa A. Khan, Sagar Mane,Amit Bhardwaj, Krishna Dev J., Ms. Aparna Jha, Sudhanshu S.Choudhary, Ms. Surabhi Guleria, Satyajit A. Desai, Ms. Anagha A. Desai,Advs. for the appearing parties.

FThe Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J.

CIVILAPPEALNos.2468-2470 OF 2019:

@ SPECIAL LEAVE PETITION (CIVIL) Nos. 8769-8771 OF2018G

1. Leave granted.

2. The High Court of Judicature at Bombay, speaking through aDivision Bench, dismissed three review petitions seeking review of its

judgment dated 16 November 2017. The review petitions were institutedbefore the High Court following an order of two judge Bench of thisCourt dated 12 December 2017. Finding that there was no reason toreview the earlier judgment, consistent with the settled parametersgoverning the exercise of that jurisdiction, the High Court dismissed thereview petitions on 21 March 2018.

3. The original petitioner before the High Court is in appeal.

4. The appellant as well as the first respondent are officers in theservice of the Government of Maharashtra. The appellant belongs tothe open category while the first respondent belongs to ScheduledCaste. The chart with relevant details regarding their appointments andpromotions in the service of the state is provided thus:

5. The appellant joined service as Planning Assistant in theGovernment of Maharashtra on 6 May 1983. Both the appellant and thefirst respondent were selected for the post of Town Planner on 1 July1992, in the course of process initiated by the Maharashtra PublicService Commission[1]. The appellant was promoted as Deputy Directorof Town Planning[2] on 1 November 2003, by nomination through theMPSC. The first respondent was promoted as DDTP on 3 August 2006.

1MPSC

2DDTP

6. In the promotional cadre of Joint Director of Town Planning[3],there were two posts, one for open category candidates and the secondfor reservation on roster points. On 7 January 2011, the post of JDTPwas vacant for Scheduled Tribe candidate under the roster. However,relying upon circular dated 27 October 2008 of the GeneralBAdministration Department[4], the name of the first respondent wasrecommended on 7 January 2011. Though the first respondent belongsto Scheduled Caste, he was promoted on an ad-hoc basis to the post ofJDTP on 11 August 2011. On 2 July 2013, by virtue of GovernmentResolution[5] dated 29 December 2012, the cadre strength of JDTP wasCenhanced to eight posts, of which five posts were meant for the opencategory while three posts were reserved. On 2 July 2013, the appellantwas promoted to the post of JDTP.

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

SENIORITY LIST

(i) 14 February 2011A circular for seniority list of DDTPs as on 1 January 2009 wasissued. The appellant stood at serial no 3 and the first respondentstood at serial no 9;F(ii)1 June 2014

letter was issued for the provisional seniority list of JDTPs ason 1 January 2014 on the basis of “date of appointment on presentpost”;

(iii) 28 August 2014GA circular was issued for the final seniority list of JDTPs as on1 January 2014 on the basis of “date of appointment on presentpost”;

3JDTP4GADH5GR

(iv) 15 January 2016

circular was issued for final seniority list of JDTPs as on1 January 2015 on the basis of “date of regular appointment/regularized date of promotion”;

(v) 8 March 2016

In response to query under the Right to Information Act 2005,the appellant was informed that the promotion of the firstrespondent would be regularized with the concurrence of GADand with the approval of the MPSC in future; and

(vi) 30 April 2016

The incumbent in the post of Director of Town Planning[6] was dueto retire upon which the post would fall vacant.

8. After lodging an objection to the seniority list dated 15 January2016, the appellant filed an Original Application[7] before the MaharashtraAdministrative Tribunal[8]. Simply put, the case of the appellant beforethe Tribunal was that even assuming that the promotion of the firstrespondent as JDTP on 11 August 2011 (prior to the promotion of theappellant) against reserved vacancy was regular in nature, he was notentitled to claim consequential seniority on the basis of his earlierpromotion in the cadre of JDTP as against the appellant (a candidatefrom the general category) who was senior to him in the feeder cadre ofDDTP.9. In the submission of the appellant, the grant of consequentialseniority to persons belonging to the reserved categories promoted earlierthan their seniors in the feeder cadre had not been expressly providedfor by the State government in the Maharashtra Civil Services SeniorityRules or elsewhere. The appellant also submitted that the State ofMaharashtra had not undertaken any exercise to quantify and demonstratethe inadequacy of representation to the Scheduled Castes in the matterof promotion to the senior cadre in the Town Planning and ValuationDepartment (Recruitment) Rules 1984. Absent such an exercise, it wasurged that the mandate of Constitution Bench decision of this Court in

6 DTP

7 O.A. 269 of 2016

8 The Tribunal

AM Nagaraj v Union of India[9](“Nagaraj”)had not been fulfilled. Withthis grievance, the appellant asserted that:

(i) As regards his promotion on 11 August 2011 as JDTP from thecadre of DDTP, the first respondent as Scheduled Castecandidate was not entitled to vacancy which was reservedBfor Scheduled Tribe candidate. However, he was promotedas JDTP on the basis of GAD circular dated 27 October2008. This circular was held to be ultra vires by judgment ofa Division Bench of the Bombay High Court in Magas VargaKarmachari-Adhikari Suraksha Mahasangh v State ofMaharashtra (“Mahasangh”) rendered on 9 May 2013 at itsCAurangabad Bench[10]. According to the decision, the circularwas contrary to the provisions of the Maharashtra State PublicServices Reservation for Scheduled Castes, Schedules Tribes,Denotified Tribes (Vimukta Jatis), Nomadic Tribes, SpecialBackward Category and Other Backward Classes Act 2001[11];D(ii) The promotion of the first respondent as JDTP on 11 August2011 was fortuitous and not regular appointment. Hence, heis not entitled to claim the benefits of his promotion as JDTPand has been wrongly shown as senior to the appellant in thefinal seniority list of the cadre; andE

(iii) The final seniority list published by the State on 15 January2016 is in breach of the settled position of law governingconsequential seniority for reserved category promotees assettled by the Constitution Bench of this Court in Nagaraj(supra).F

10. Principally, on the above grounds, the appellant sought thefollowing reliefs before the Tribunal:

(i) Setting aside of the final seniority list as on 1 January 2015,published by the State on 15 January 2016 for the cadre ofGJDTP;

9(2006) 8 SCC 212

10 Writ Petition No. 3077 of 2011

11 Act VIII of 2004. “Reservation Act 2004"

(ii) direction to review and revise the seniority list in the cadre ofJDTP as on 1 January 2015, by fixing the seniority of theappellant above the first respondent in conformity with hisposition in seniority in the feeder cadre of DDTP; and

(iii) An order restraining the State from undertaking the exercise ofselection for promotion to the post of DDTP on the basis of thefinal seniority list published on 15 January 2016 until it isreviewed and revised.

11. By an interim order dated 1 April 2016, the Tribunal directedthat the decision of the government would be subject to the outcome ofthe OA pending before it. Soon thereafter, on 2 April 2016, the GADEstablishment Board – I conducted meeting where the first respondentwas recommended for promotion to the post of DTP. In writ petitionchallenging the interim order of the Tribunal, the High Court directed theTribunal to decide the pending OA by 30 April 2016 (the post of DDTPwas due to fall vacant on the retirement of the incumbent on 30 April2016). On 18 April 2016, the Tribunal concluded the hearing and, whilereserving the judgment, directed the case to be posted for pronouncementof judgment on 2 May 2016. Shortly before that date, the Stategovernment promoted the first respondent to the post of DTP on 30April 2016. The Tribunal by its judgment dated 2 May 2016 allowed theOA. It quashed the seniority list dated 15 January 2016 of JDTPs andissued directions for the preparation of fresh seniority list by decidingthe date of regular promotion of the first respondent, whereupon freshpromotion order was directed to be issued to the post of DTP.

12. The first respondent instituted proceedings[12] under Article 226of the Constitution before the High Court to challenge the decisions ofthe Tribunal. The State government challenged the decision of theTribunal[13]. By its judgment dated 16 November 2017, the High Courtallowed the writ petitions and set aside the decision of the Tribunal. Theappellant moved this Court in proceedings under Article 136 of theConstitution to assail the decision of the High Court.

12 Writ Petition No. 8859 of 2016 was instituted to challenge the order of the Tribunalcondoning delay; Writ Petition No. 8860 of 2016 was instituted against the judgment ofthe Tribunal in OA No. 269 of 201.

13 Writ Petition No. 9291 of 2016

A13. On 12 December 2017, when the Special Leave Petition washeard, this Court passed the following order:

“Mr. Ranjit Kumar, learned senior counsel appearing for thepetitioner, points out that though the issue of catch up was raisedbefore the High Court, the same has not been considered.

BIf that be so, it is for the petitioner to pursue his remedies availableto him under law on that issue.

Without prejudice to such liberty, these special leave petitions arepermitted to be withdrawn.

We make it clear that we have not considered the matter on merits.C

However, it will be open to the parties on both the sides to take allavailable contentions before the High Court on the point of catchup.”

In terms of the liberty granted by this Court, the appellant movedDthe High Court in review. The review petitions, as stated earlier, weredismissed on 21 March 2018. Aggrieved by the judgment of the HighCourt in review and the original judgment in the writ petitions, the appellantmoved this Court afresh under Article 136 of the Constitution[14].

14. During the pendency of these proceedings, the appellant hasEinstituted Miscellaneous Applications[15] along with an interlocutoryapplication[16]. By the Miscellaneous Applications, the appellant has soughta clarification of the order dated 12 December 2017 so as to seek specificpermission from this Court to move afresh if the review were to failbefore the High Court. On 28 November 2018, notice was issued on theMiscellaneous Applications.F

15. preliminary objection has been taken to the maintainabilityof the Special Leave Petition by Mr R P Bhatt, learned Senior Counselappearing on behalf of the first respondent. Mr Bhatt urged that as aresult of the order of this Court dated 12 December 2017, all issuesother than the application of the catch-up rule were given up when libertyGwas granted to the appellant to move the High Court by way of review.Once the review was rejected by the High Court, the followingconsequences must according to the submission ensue:

14SLP (C) Nos. 8769-71 of 2018 was filed against the judgment in review; SLP (C) Nos.14041-43 of 2018 were filed against the judgment in the writ petitions.H15MA Nos. 2983-85 of 201816IA No. 167323 of 2018

(i) challenge to the original order of the High Court allowing thewrit petitions is barred, in the absence of liberty being grantedto the appellant to move afresh after the review was dismissedagainst the original order assailed in the Special Leave Petition;

(ii) challenge under Article 136 of the Constitution solely againstan order on review petition is not maintainable.

In support of the submission, certain decisions of this Court havebeen relied upon which would be adverted to hereafter.

16. The first task of this Court is to construe the order dated 12December 2017. As the order indicates, the grievance of the appellantwas that though the issue of the catch-up rule was raised before theHigh Court, it had not been considered. two judge Bench of this Courtconsisting of Hon’ble Mr Justice Kurian Joseph and Hon’ble Mr JusticeAmitava Roy, which heard the Special Leave Petitions, observed inresponse to the submission that “if that be so, it is for the petitioner topursue his remedies available to him under law on that issue”. This Courtpermitted the Special Leave Petitions to be withdrawn “without prejudiceto such liberty”. Leaving it open to the contesting parities to take up allavailable contentions before the High Court on the issue of catch-up, theBench observed that :

“We make it clear that we have not considered the matter onmerits.”

17. What emerges from the order dated 12 December 2017 is

that:

(i) Liberty was granted to the appellant specifically to pursue theremedies available in law on the grievance that the issue ofcatch-up, though raised, had not been considered by the HighCourt; and

(ii) This Court had not considered the matter on merits.

The reservation of liberty to the appellant to adopt suitable remedyin law, to pursue the grievance that submission which was urged beforethe High Court had not been considered would evidently be referenceto the remedy by way of review.

18. It is well settled that if submission which has been urgedbefore the High Court has not been noticed or considered, it is to the

AHigh Court that the aggrieved litigant must turn for the rectification ofthe record. But, apart from this, the observation in the order dated 12December 2017 that this Court had not considered the matter on meritsis of crucial significance. The purpose of that clarification was to ensurethat the issues which were raised (in any event with regard to the catch-up rule) were entirely open, to be urged before the High Court in theBfirst instance and thereafter, if the appellant were to be aggrieved, infurther proceedings before this Court. The above observation of thisCourt was not merely intended to keep the issue of the non-considerationof the catch-up rule open to be urged before the High Court. That thisissue was kept open, is evident from the last part of the order dated 12CDecember 2017 which specifically keeps open the contentions of theparties to be urged before the High Court. In addition, the order of thisCourt carefully enunciates that “we have not considered the matter onmerits”.

19. In view of this clear clarification, it is impossible to accept theDpreliminary objection that recourse to this Court is barred after theHigh Court decided the review petitions. To take any other view wouldeffectively deny access to justice to the appellant. Evidently, the grievanceof the appellant was not considered by this Court on merits on 12December 2017. To adopt construction which would deprive theappellant of the remedy of moving this Court after the decision of theEHigh Court in review would lead to an egregious failure of justice. Sucha construction must be eschewed.

20. We would like to note an important aspect of the matter herewhich reflects on the bona fides of the appellant. The appellant moveda Miscellaneous Application on 22 November 2018 by way of abundantFcaution, for seeking clarification of the order dated 12 December 2017.The appellant sought clarification to the effect that upon the disposalof the review petitions by the High Court, it would be open to challengethe order in review as well as the original order before this Court.

21. One of the members of the earlier Bench, Hon’ble Mr JusticeGKurian Joseph, was due to demit office on 29 November 2018. TheMiscellaneous Application was instituted on 22 November 2018. On 28November 2018, Bench consisting of Hon’ble Mr Justice Kurian Joseph

and one of us (Hon’ble Mr Justice Hemant Gupta) issued notice on theMiscellaneous Application.

22. We accordingly clarify the earlier order dated 12 December2017 by directing that it would be open to the appellant, if aggrieved bythe order that may be passed by the High Court in review to challengeboth the order in review and original orders in the writ petitions. However,this liberty is confined to the issue of the catch-up rule. In issuing thisclarification, we have also been guided by an earlier precedent of twojudge Bench of this Court in the Maharashtra Chamber of HousingIndustry v Municipal Corporation of Greater Mumbai[17]. Benchof this Court consisting of Hon’ble Mr Justice S Bobde and Hon’bleMr Justice Ashok Bhushan passed an order on 16 August 2016[18] in thefollowing terms:

“In the circumstances, we permit the petitioner to approach theHigh Court with review petition along with appropriate applicationfor impleadment. The High Court shall decide the issues raisedby the petitioner afresh, as expeditiously as possible.”

The Special Leave Petitions were accordingly disposed of.

23. Subsequently, on 5 December 2017, while considering anapplication for modification/recall of the earlier order, two judge Benchconsisting of Hon’ble Mr Justice S Bobde and Hon’ble Mr Justice LNageswara Rao observed thus:

“Having regard to the circumstances of the case and theimportance of the matter which affects the construction activitiesin the entire city of Mumbai, we consider it appropriate to modifyour earlier order dated 16.08.2016 passed in SLP(C) Nos.24660-24661 of 2016, by expressly granting liberty to the petitioner tochallenge the impugned PIL order as well as the impugned Revieworder before this Court.

We order accordingly.

Hence, the aforesaid applications for modification/recall aredisposed of in the above terms.”

17SLP (C)…2016.CC No. 14855 of 2016, dated 16 August 2016.

18SLP (CC) NO 14855 of 2016

ALearned Senior Counsel appearing on behalf of the firstrespondent relied on judgment of this Court in Suseel Finance &Leasing Co. v M Lata[19 ]where it was held thus:

“1. These special leave petitions are against an order dated12-12-2003 passed in review petitions. It must be mentioned thatBagainst the main judgment, special leave petitions had earlier beenfiled. However, when those special leave petitions reached hearingon 1-9-2003, the following order came to be passed:

“After arguing for some time, the learned counsel for the petition-ers seeks permission to withdraw the special leave petitions toseek review of the order of the National Commission. Permissionis granted. Accordingly, the special leave petitions are dismissedas withdrawn.”

It is clear from the order that the matter was argued for sometime. It is clear that the Court was against the petitioners. Thus,Das has become common nowadays, counsel applied for withdrawalon the ground that review will be applied for.

2. Thereafter the review applications were filed before the HighCourt which have now been dismissed. By these special leavepetitions the order dismissing the review petitions has beenchallenged.

3. In the case of Shanker Motiram Nale v. Shiolalsing GannusingRajput [(1994) 2 SCC 753] it has been held by this Court thatagainst an order rejecting an application for review, special leavepetition is not maintainable. This authority is directly on the pointin issue.”F

24. In the above case, it is evident that the petitioners had soughtpermission to withdraw the Special Leave Petition, after arguing thematter for some time, to seek review of the order which was impugned.Granting permission, the Special Leave Petition was dismissed aswithdrawn. It is clear therefore that there was nothing to indicate thatGthe court had granted permission to move this Court afresh against theoriginal order after the review was decided.

19(2004) 13 SCC 675

25. In Abhishek Malviya v Additional WelfareCommissioner[20], Special Leave Petition was filed before this Courtagainst an order of the Additional Welfare Commissioner in matterinvolving claim for compensation arising out of the Bhopal Gas LeakDisaster. One of the grounds of challenge was that the Additional WelfareCommissioner had referred to the appellant as deceased. This Courtdismissed the Special Leave Petition as withdrawn, recording thesubmission of the appellant that he wishes to move the Additional WelfareCommissioner for correction of the order. After the Additional WelfareCommissioner passed fresh order, writ proceedings were initiatedbefore the High Court. The High Court held that by the earlier order ofthis Court, liberty was reserved only to move the Additional WelfareCommissioner to correct typographical error in appeal. This Courtaffirmed the order of the High Court, holding that its earlier order hadmerely reserved liberty to move the Additional Welfare Commissionerfor correction of typographical error.

26. In Vinod Kapoor v State of Goa[21], Special Leave Petitionbefore this Court was dismissed as withdrawn, recording that thepetitioner had filed review petition in the High Court. No liberty wastaken to file fresh Special Leave Petition against the original order ofthe High Court. In that context, this Court held thus:

“As the appellant has withdrawn the special leave to appeal againstthe order dated 29-1-2000 [Vinod Kapoor v. State of Goa, WP(C) No. 253 of 1999, order dated 29-1-2000 (Bom)] of the HighCourt with permission to pursue his remedy by way of reviewinstead and had not taken the liberty from this Court to challengethe order dated 29-1-2000 afresh by way of special leave in casehe did not get relief in the review application, he is precluded fromchallenging the order dated 29-1-2000 of the High Court by wayof special leave to appeal under Article 136 of the Constitution.”

The same view was reiterated by another Bench of two judges ofthis Court in Sandhya Educational Society v Union of India[22](“Sandhya Education Society”), where this Court had permitted thewithdrawal of Special Leave Petition with liberty to institute reviewpetition before the High Court. No liberty was granted to file fresh

20(2008) 3 SCC 10821(2012) 12 SCC 378

22(2014) 7 SCC 701

ASpecial Leave Petition thereafter. This Court held that once SpecialLeave Petition is dismissed as withdrawn without obtaining appropriatepermission to file fresh Special Leave Petition after exhausting theremedy of review petition before the High Court, it would not bemaintainable. The Court held thus:

B“16. This Court in Vinod Kapoor v. State of Goa [(2012) 12SCC 378 : AIR 2012 SC 3722], has categorically observed thatonce the special leave petition is dismissed as withdrawn withoutobtaining appropriate permission to file special leave petitiononce over again after exhausting the remedy of review petitionbefore the High Court, the same is not maintainable.C17. The issue raised in this appeal is identical with the issue raisedand considered by this Court in Vinod Kapoorv. State of Goa[(2012) 12 SCC 378 : AIR 2012 SC 3722] . Therefore, whileaccepting the contentions of the learned counsel for the respondent,we hold that the petition filed by the appellant is not maintainable.”DThe view in Sandhya Educational Society (supra)was reiteratedin Bussa Overseas and Properties Private Limited v Union ofIndia[23], where this Court held thus:“30. The decisions pertaining to maintainability of special leaveEpetition or for that matter appeal have to be seemly understood.Though in the decision in Shanker Motiram Nale [Shanker MotiramNale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] the two-Judge Bench referred to Order 47 Rule 7 of the Code of CivilProcedure that bars an appeal against the order of the courtrejecting the review, it is not to be understood that the Court hasFcurtailed the plenary jurisdiction under Article 136 of theConstitution by taking recourse to the provisions in the Code ofCivil Procedure. It has to be understood that the Court has evolvedand formulated principle that if the basic judgment is not assailedand the challenge is only to the order passed in review, this CourtGis obliged not to entertain such special leave petition. The saidprinciple has gained the authoritative status and has been treatedas precedential principle for more than two decades and we aredisposed to think that there is hardly any necessity not to be guidedby the said precedent.”

H23(2016) 4 SCC 696

27. In the present case, we find, for the reasons which we haveindicated above, clear distinction on facts. While disposing of the earlierSpecial Leave Petition to enable the appellant to pursue his remedies onthe contention that the issue of catch-up though raised was not consideredby the High Court, this Court expressly clarified that it had not consideredthe matter on merits. In the absence of such clarification, the withdrawalof the Special Leave Petition would have led to the inference that theappellant had not been granted liberty to move this Court afresh. On theother hand, the clear purpose and intent of the observation that this Courthad not considered the matter on merits was to keep open all the remediesof the appellant before the High Court in the first instance and thereafterbefore this Court on the issue of the catch-up rule.

28. By the clarification that we have issued on the MiscellaneousApplications, we have set the matter at rest. For the above reasons, wedo not find any merit in the preliminary objection.

29. Mr P S Patwalia, learned Senior Counsel appearing on behalfof the appellant urged the following submissions:

(i) The appellant was senior to the first respondent in the feedercadre of DDTP;

(ii) Even assuming that the promotion of the first respondent asJDTP was on regular basis, the appellant would “catch-up”on his promotion and regain his seniority over the firstrespondent in the promotional post;

(iii) The circular of the Government of Maharashtra dated 20 March2003 cannot be construed as granting consequential seniorityto reserved candidate on the promotion to higher post, inthe absence of the collection of quantifiable date, as requiredby the decision of this Court in Nagaraj (supra);

(iii) When the circular dated 20 March 2003 was issued,reservation in the state services was only until the entry levelof class-I posts, in this case DDTP;

(iv) Reservation within the Class-I posts was brought about for thefirst time by Reservation Act 2004;

A(v) Sections 5 and 6 of the Reservation Act 2004 specifically savecertain existing circulars and it occupies the field. No othercircular, including the circular on consequential seniority is saved.Under Section 11, anything done in violation of the Act is void;

(vi) The circular dated 27 October 2008 on which basis promotionBwas granted to the first respondent on 2 August 2011 against apost reserved for Scheduled Tribe candidate, was quashedby the Bombay High Court[24] on the ground that it was ultravires the Reservation Act 2004. Since the promotion of thefirst respondent was on the basis of the circular which wasquashed, his appointment contrary to the rules would not entitleChim to seniority; and

(vii)The circular dated 20 March 2003 provides for the grant ofconsequential seniority where reserved candidate has beenpromoted on regular basis. The promotion of the firstrespondent being ad-hoc, would not entitle him toDconsequential seniority.30. On the other hand, Mr V Giri, learned Senior Counsel appearingon behalf of the first respondent urged the following submissions:

(i) The scope of adjudication before this Court must be restrictedEonly to the applicability of the principle of catch-up;(ii) The promotion of the first respondent dated 11 August 2011 tothe post of JDTP was not challenged by the appellant in theOA before the Tribunal and cannot be permitted to bechallenged, directly or indirectly, in these proceedings;

F(iii) The necessary concomitant for the application of the principleof catch-up is that the promotion of the first respondent dated11 August 2011 must be taken to be valid and regular; and

(iv) Consequently, the submission of the appellant that the promotionof the first respondent as JDTP was ad-hoc, fortuitous orGirregular cannot be agitated before this Court.

31. On the applicability of the principle of catch-up, Mr V Giriurged the following submissions:

242013 (5) Maharashtra Law Journal 640H

(i) Rule 4 of the Maharashtra Civil Services (Regulation of Seniority)Rules 1982[25], stipulates that the seniority of governmentservant in post is ordinarily determined by the length of theircontinuous service;

(ii) Section 5(1) of the Reservation Act 2004 stipulates thatreservation shall be at all stages of promotion, thereby givingeffect to the constitutional right under Article 16 (4A);

(iii) Section 5(2) saves all government orders which provide forreservation of posts by promotion;

(iv) In the judgment of this Court in Indra Sawhney v Union ofIndia[26 ](“Indra Sawhney”), it was held that the principle ofconsequential seniority can be enunciated in rule or executiveorder. Consequently, the State government was competent toprovide for consequential seniority in its GR dated 20 March2003;

(v) By GR dated 20 October 1997, it was stipulated that aBackward Class officer will retain seniority in promotionalcadre by the date of regular appointment, according to theseniority rules; and

(vi) The GR dated 20 March 2003 was issued after the amendmentof Article 16 (4A) by the 85th Amendment, expressly recognizingthat seniority among Backward Classes/non-Backward Classcandidates in government service in the promoted cadre shallbe fixed on the basis of the regular dates of their promotion.

32. On the above grounds, it was urged that the principle ofcatch-up would not be applicable. Finally, it was urged that even presumingthat the seniority of the appellant is protected in the cadre of JDTP, hedid not have the requisite eligibility to be considered for promotion to thepost of DTP for the following reasons:

(i) Rule 3 of the Directorate of Town Planning and Valuation(Recruitment) Rules 2011 prescribes that an officer holdingthe post of JDTP must serve in the post for minimum of threeyears to be considered eligible for promotion to the post ofDTP;

25Seniority Rules 1982

261992 Supp. (3) SCC 217

A(ii) Upon the superannuation of the incumbent in the post of DTP, avacancy arose in the post on 30 April 2016;

(iii) On the date on which vacancy occurred in the post of DTP,the appellant did not fulfill the eligibility criterion of three years’experience as JDTP and the first respondent being the seniorBmost eligible officer was entitled to and eligible for the post;and

(iv) Seniority and eligibility are distinct concepts and if senior isnot otherwise eligible for consideration under the rules ofpromotion, seniority will have to give way to an eligible junior.CThe catch-up rule, it was submitted, will not provide actualservice to the appellant to fulfill the eligibility requirement forthe post of DTP. On 30 April 2016, the appellant did not completethree years of actual service in the post of JDTP for beingeligible for the post of DTP.

D33. The rival submissions now fall for consideration.

34. Clause (1) of Article 16 of the Constitution stipulates thatthere shall be equality of opportunity for all citizens in matters relating toemployment or appointment to any office under the State. The expression‘appointment’ was interpreted by Bench of nine Judges of this CourtEin Indra Sawhney (supra)to exclude reservations in promotional posts.The expression ‘appointment’ was construed to refer to initialappointments and hence not to promotional avenues. After this decision,the Parliament in its constituent capacity amended Article 16 by theConstitution (Seventy-seventh) Amendment Act 1995 with effect from17 June 1995. Clause (4A) of Article 16 as introduced by the Seventy-FSeventh Amendment read thus:

“16.(4A) Nothing in this article shall prevent the State from makingany provision for reservation in matters of promotion to any classor classes of posts in the services under the State in favour of theScheduled Castes and the Scheduled Tribes which, in the opinionGof the State, are not adequately represented in the services underthe State.”

By virtue of Clause (4A), an enabling provision was introducedas result of which nothing contained in the Article would prevent the

State from making reservations in promotion in the services under theState for Scheduled Castes and Tribes which, in its opinion, are notadequately represented in its service.

35. line of cases before this Court considered the effect of anaccelerated promotion granted to member of Scheduled Caste orScheduled Tribe in terms of consequential seniority in higher post.More specifically, the vexed issue was whether member of such acaste and tribe who obtains promotion earlier than senior belonging tothe general or open category in the feeder cadre would retain that seniorityon the latter being promoted to higher post.

36. In Union of India v Virpal Singh Chauhan[27](“Virpal SinghChauhan”),a two judge Bench of this Courtheld that the State couldprovide that candidate who had been promoted earlier on the basis ofreservation and on the application of the roster would not be entitled toseniority over senior belonging to the general category in the feedercategory. senior belonging to the general category who is promoted toa higher post subsequently would regain seniority over the reservedcandidate.

37. The decision in Virpal Singh Chauhan (supra) led to theConstitution (Eighty-fifth Amendment) Act 2001 with effect from 17June 1995. Clause (4A), as amended, expanded the ambit of the earlierprovision by enabling the State to also provide for consequential seniority,while making the provision for reservation in matters of promotion. Clause(4A) of Article 16, in its present form, reads thus:

“(4A) Nothing in this article shall prevent the State from makingany provision for reservation in matters of promotion, withconsequential seniority, to any class or classes of posts in theservices under the State in favour of the Scheduled Castes andthe Scheduled Tribes which, in the opinion of the State, are notadequately represented in the services under the State.”

38. The principle which has been enunciated in Virpal SinghChauhan (supra) has come to be known as the ‘catch-up’ rule. In AjitSingh Januja v State of Punjab[28](“Ajit Singh I”), three judge Benchof this Court adopted the catch-up rule propounded in Virpal SinghChauhan (supra).This Court held that balance has to be maintained

27(1995) 6 SCC 68428(1996) 2 SCC 715

972SUPREME COURT REPORTS

Aso as to avoid reverse discrimination and rule or circular which givesseniority to candidate belonging to the reserved category promoted onthe basis of the roster point would violate Articles 14 and 16 of theConstitution.

39. contrary view was taken by another three Judge Bench inBJagdish Lal v State of Haryana[29] (“Jagdish Lal”) to the effect that byvirtue of the principle of continuous officiation, candidate belonging tothe reserved category who is promoted earlier than general candidatedue to an accelerated promotion would not lose seniority in the highercadre. This conflict of decisions was resolved by Constitution Benchin Ajit Singh (II) v State of Punjab[30 ](“Ajit Singh II”).The ConstitutionCBench upheld the principle laid down in Virpal Singh Chauhan(supra)and Ajit SinghI (supra) and disapproved of the decision inJagdish Lal (supra). This Court held thus:

“77. We, therefore, hold that the roster-point promotees (reservedcategory) cannot count their seniority in the promoted categoryDfrom the date of their continuous officiation in the promoted post,— vis-à-vis the general candidates who were senior to them inthe lower category and who were later promoted. On the otherhand, the senior general candidate at the lower level, if he reachesthe promotional level later but before the further promotion of theEreserved candidate — he will have to be treated as senior, at thepromotional level, to the reserved candidate even if the reservedcandidate was earlier promoted to that level. We shall explain thisfurther under Point 3. We also hold that Virpal [(1995) 6 SCC 684: 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ajit Singh [(1996)2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] haveFbeen correctly decided and that Jagdish Lal [(1997) 6 SCC 538 :1997 SCC (L&S) 1550] is not correctly decided. Points 1 and 2are decided accordingly.”

40. The constitutional validity of clauses (4A) and (4B) of Article16 of the Constitution was dealt with in decision of ConstitutionGBench of this Court in Nagaraj (supra). Nagaraj (supra) laid down thatthe catch-up rule and the concept of the consequential seniority areessentially precepts of service jurisprudence. They cannot, in the viewof the Constitution Bench, be elevated to the status of component of

29(1997) 6 SCC 538H30(1999) 7 SCC 209

the basic structure. These precepts have been held to be practices asdistinct from constitutional principles. The consequence is that they donot lie beyond the amending power of Parliament: neither the catch-uprule nor consequential seniority are elements of clauses (1) or (4) ofArticle 16. These have been held to be the principles evolved to controlthe extent of reservation.

41. The validity of clause (4A) and (4B) of Article 16 has beenupheld by the Constitution Bench in Nagaraj on the rationale that “theyretain the controlling factors or the compelling reasons, namely,backwardness and inadequacy of representation which enables the Statesto provide for reservation keeping in mind the overall efficiency of theState administration under Article 335”[31]. Nagaraj (supra) held that theState must demonstrate in each case the existence of compelling reasons,namely (i) backwardness; (ii) inadequacy of representation; and (iii)overall administrative efficiency before providing for reservation.Construing clauses (4A) and (4B) of Article 16 to be enabling, Nagaraj(supra) holds that if the State wishes to exercise its discretion under theenabling provisions, it must collect quantifiable data showingbackwardness of the class as well as inadequacy of representation ofthat class in public employment in addition to complying with the norm ofefficiency embodied in Article 335. The Court held thus:

“123. However, in this case, as stated above, the main issueconcerns the “extent of reservation”. In this regard the Stateconcerned will have to show in each case the existence of thecompelling reasons, namely, backwardness, inadequacy ofrepresentation and overall administrative efficiency before makingprovision for reservation. As stated above, the impugned provisionis an enabling provision. The State is not bound to make reservationfor SCs/STs in matters of promotions. However, if they wish toexercise their discretion and make such provision, the State hasto collect quantifiable data showing backwardness of the classand inadequacy of representation of that class in publicemployment in addition to compliance with Article 335. It is madeclear that even if the State has compelling reasons, as stated above,the State will have to see that its reservation provision does notlead to excessiveness so as to breach the ceiling limit of 50% orobliterate the creamy layer or extend the reservation indefinitely.”

A42. In the recent decision of Constitution Bench of this Court inJarnail Singh v Lachhmi Narain Gupta[32](“Jarnail Singh”), Nagaraj(supra) has been followed save and except for the dictum requiring theState to the demonstrate backwardness as condition for the exerciseof the enabling power in making reservations in promotion for ScheduledCastes and Tribes. This part of the judgment in Nagaraj (supra)hasBbeen held to be inconsistent with the nine Judge Bench decision in IndraSawhney (supra). The Court in Jarnail Singh (supra) held thus:

“..It is clear, therefore, that Nagaraj (supra) has, in unmistakableterms, stated that the State has to collect quantifiable data showingbackwardness of the Scheduled Castes and the Scheduled Tribes.CWe are afraid that this portion of the judgment is directly contraryto the nine-Judge Bench in Indra Sawhney (1) (supra). JeevanReddy, J., speaking for himself and three other learned Judges,had clearly held, “[t]he test or requirement of social and educationalbackwardness cannot be applied to Scheduled Castes andDScheduled Tribes, who indubitably fall within the expression“backward class of citizens”.”

Justice RF Nariman, speaking for the Constitution Bench held

thus:

“..Thus, it is clear that when Nagaraj (supra) required the StatesEto collect quantifiable data on backwardness, insofar as ScheduledCastes and Scheduled Tribes are concerned, this would clearlybe contrary to the Indra Sawhney (1) (supra) and would have tobe declared to be bad on this ground.”

43. The decision in Nagaraj (supra) has been followed in severalFsubsequent decisions of this Court: (i) Suraj Bhan Meena v State ofRajasthan[33](“Suraj Bhan Meena”);(ii) Uttar Pradesh PowerCorporationLimited v Rajesh Kumar[34](“UP Power Corporation”);(iii) S Panneer Selvam v State of Tamil Nadu[35](“Paneer Selvam”);and (iv) K Pavitra v Union of India[36](“B K Pavitra”).

G32(2018) 10 SCC 39633(2011) 1 SCC 46734(2012) 7 SCC 135(2015) 10 SCC 29236(2017) 4 SCC 620

44. In Suraj Bhan Meena (supra) the question which arose forconsideration before two judge Bench of this Court was formulatedthus:

“49. The primary question which we are called upon to answer inthese five special leave petitions is whether the amended provisionsof Article 16(4-A) of the Constitution intended that those belongingto the Scheduled Caste and Scheduled Tribe communities, whohad been promoted against reserved quota, would also be entitledto consequential seniority on account of such promotions, or wouldthe “catch-up” rule prevail.”

Answering this question, this Court held thus:

“66. The position after the decision in M. Nagaraj case [(2006) 8SCC 212 : (2007) 1 SCC (L&S) 1013] is that reservation of postsin promotion is dependent on the inadequacy of representation ofmembers of the Scheduled Castes and Scheduled Tribes andBackward Classes and subject to the condition of ascertaining asto whether such reservation was at all required.”

The Court held that since no exercise was carried out by theState of Rajasthan to acquire quantifiable data regarding the inadequacyof representation of Scheduled Castes and Tribes in public services inthe state, the High Court was justified in quashing the notificationsproviding for consequential seniority and promotion.

45. In Panneer Selvam (supra) the issue before two JudgeBench of this Court was thus:

“1.1. (i) In the absence of policy decision taken by the State/rulesframed pursuant to the enabling provision of Article 16(4-A) ofthe Constitution of India, whether reserved category candidatepromoted on the basis of reservation earlier than his senior generalcategory candidate in the feeder category can claim consequentialseniority in the promotional post?”

Rule 12 of the sub-rules to the Tamil Nadu Highways andEngineering Service provided as follows:

“12. Reservation of appointment.- The rule of reservation ofappointments (General Rule 22) shall apply to the appointment of

AAssistant Divisional Engineers by direct recruitment andrecruitment by transfer separately and the appointment of AssistantEngineers by direct recruitment.”

Under Rule 12, reserved category Assistant and Junior Engineershad secured promotion as Assistant Divisional Engineers earlier thanBtheir counterparts belonging to the general category as result ofaccelerated promotion following the rule of reservation.

46. Justice R Banumathi, speaking for the two Judge Bench heldthat Rule 12 did not provide for consequential seniority to candidatesdrawn from the reserved category who are granted accelerated promotionCand, in the absence of specific provision or policy, consequential senioritycould not be granted:

“26. The true legislative intent under Article 16(4-A) of theConstitution is to enable the State to make provision or framerules giving consequential seniority for the accelerated promotionDgained based on the rule of reservation. Rule 12 evidently doesnot provide for the consequential seniority for reserved categorypromotees at any point of time. The consequential seniority forsuch reserved category promotees can be fixed only if there isexpress provision for such reserved category promotees in theState rules. In the absence of any specific provision or policyEdecision taken by the State Government for consequential seniorityfor reserved category accelerated promotees, there is no questionof automatic application of Article 16(4-A) of the Constitution.”

The Court noted that the appellants who belonged to the generalcategory were not questioning the accelerated promotion granted to theirFcounterparts from the reserved category by following the rule ofreservation but were only seeking the application of the catch-up rule inthe fixation of seniority in the promotional cadre. The Court held that inthe absence of any provision of consequential seniority in the rules, thecatch-up rule will prevail:

“36. In the absence of any provision for consequential seniority inthe rules, the “catch-up rule” will be applicable and the roster-point reserved category promotees cannot count their seniority inthe promoted category from the date of their promotion and thesenior general candidates if later reach the promotional level,

general candidates will regain their seniority. The Division Benchappears to have proceeded on an erroneous footing that Article16(4-A) of the Constitution of India automatically gives theconsequential seniority in addition to accelerated promotion to theroster-point promotees and the judgment of the Division Benchcannot be sustained.”

47. The decision in Panneer Selvam (supra) has since beenfollowed by two judge Bench of this Court in K Pavitra (supra).Justice AK Goel, speaking for the Bench held thus:

“29. It is clear from the above discussion in S. Panneer Selvamcase [S. Panneer Selvam v. State of T.N., (2015) 10 SCC 292 :(2016) 1 SCC (L&S) 76] that exercise for determining“inadequacy of representation”, “backwardness” and “overallefficiency”, is must for exercise of power under Article 16(4-A). Mere fact that there is no proportionate representation inpromotional posts for the population of SCs and STs is not byitself enough to grant consequential seniority to promotees whoare otherwise junior and thereby denying seniority to those whoare given promotion later on account of reservation policy. It isfor the State to place material on record that there was compellingnecessity for exercise of such power and decision of the Statewas based on material including the study that overall efficiencyis not compromised. In the present case, no such exercise hasbeen undertaken. The High Court erroneously observed that itwas for the petitioners to plead and prove that the overall efficiencywas adversely affected by giving consequential seniority to juniorpersons who got promotion on account of reservation. Plea thatpersons promoted at the same time were allowed to retain theirseniority in the lower cadre is untenable and ignores the fact thata senior person may be promoted later and not at the same timeon account of roster point reservation. Depriving him of his seniorityaffects his further chances of promotion. Further plea that senioritywas not fundamental right is equally without any merit in thepresent context. In absence of exercise under Article 16(4-A), itis the “catch-up” rule which fully applies. It is not necessary to gointo the question whether the Corporation concerned had adoptedthe rule of consequential seniority.”

CDEF

A48. Rule 4 of the Maharashtra Civil Service (Regulation of Seniority)Rules 1982 lays down the general principles of seniority. The substantivepart of Rule 4(1) reads thus:

“4. General principles of seniority:-

(1) Subject to the other provisions of these rules, the seniority of aBGovernment servant in any post, cadre or service shall ordinarilybe determined on the length of his continuous service therein.”

The second proviso to Rule 4(1) is as follows:

“Provided further that, the service, if any, rendered by him as aCresult of fortuitous appointment (except in case whether thecompetent authority certifies that, it was not expedient / possibleor practicable to make regular appointment strictly in accordancewith the ratio of recruitment as prescribed in relevant recruitmentrules, with the brief reasons recorded therefor), shall be excludedin computing the length of service and for the purpose of seniorityDhe shall be deemed to have been appointed to the post or in thecadre or service on the date on which his regular appointment ismade in accordance with the provisions of the relevant recruitmentrules.”

49. On 20 October 1997, Government Resolution was issuedEstipulating that an officer belonging to Backward Class will retainseniority in the promotional cadre and that it is not necessary to revisethe seniority. The GR adverts to the decision of this Court in VirpalSingh Chauhan (supra) and to the orders which were issued on 19April 1997 for regulating the seniority of employees in governmentFservices, following circular dated 30 January 1997 of the Uniongovernment. The GR is founded on the judgment in Jagdish Lal (supra)and provides thus:

“2[A] If any Backward Class employee / Officer is alreadypromoted in promotional cadre, then it is not necessary to revisehis seniority in said cadre. Similarly, it is not necessary to reviseGthe seniority lists which were in existence on 30.1.1997.”

50. On 20 March 2003, another GR was issued inter alia withreference to the earlier GR noted above. The GR states that followingthe amendment to Article 16 by the insertion of Clause (4A), it has beendecided that the instructions for regulating seniority of officers belongingH

to the Backward Classes and the general category in the promoted cadrewould be governed by the earlier Government Resolutions dated 21 June1982 and 20 October 1997. The GR clarified that the seniority betweenbackward class and non-backward class candidates in governmentservice in the promotional cadre would be governed by the regular dateof promotion:

“3. Considering the said amendment made by the UnionGovernment to Constitution of India and accordingly the ordersissued on 21.1.2002, the State Government has now decided thatthe instructions issued for regulating the seniority amongst theemployees/ officers of Backward Classes / Non-BackwardClasses in Government Service in the promoted cadre vide thecircular of 21[st] June 1982 and the instructions stipulated in theorders dated 20.10.1997 shall continue to remain in force. Hence,seniority amongst the Backward Classes / Non Backward Classcandidates in government service in the promoted cadre shall befixed on the basis of their respective regular date of promotiongiven to them as per their sequence in the select list of BackwardClass and non-Backward candidates.”

51. The submission which has been urged on behalf of the firstrespondent is that:

(i) The GR dated 20 March 2003 has been issued in pursuance ofthe 85th constitutional amendment by which the words “withconsequential seniority” were inserted in Clause (4A) of Ar-ticle 16;

(ii) The decision of this Court in Indra Sawnhey (supra) contem-plates that reservation in favour of the backward classes canalso be provided by means of an executive order;

(iii) Section 5(1) of the Reservation Act 2004 stipulates that reser-vation in promotion shall be at all stages of promotion and indoing so, gives effect to Article 16(4A); and

(iv) Section 5(2) of the Reservation Act 2004 saves all governmentorders which provide for reservation for any posts to be filledby way of promotion. Consequently it is urged that all priorgovernment orders have been explicitly saved after the enact-ment of the Reservation Act 2004.

A52. The GR dated 20 March 2003 was issued after theconstitutional amendment to Article 16 (4A) by which consequentialseniority was incorporated into that provision. The decision of this Courtin Indra Sawhney (supra) indeed contemplated that provision forreservation can be made by legislative enactment or rules and also byan executive order. The judgment of Justice Jeevan Reddy formulatedBthe following among other issues for decision:

“1. (a) Whether the ‘provision’ contemplated by Article 16(4)must necessarily be made by the legislative wing of the State?

(b) If the answer to clause (a) is in the negative, whether anCexecutive order making such provision is enforceable withoutincorporating it into rule made under the proviso to Article 309?”

Answering this issue the decision holds:

“(1) (a) It is not necessary that the ‘provision’ under Article 16(4)should necessarily be made by the Parliament/Legislature. SuchDa provision can be made by the Executive also. Local bodies,Statutory Corporations and other instrumentalities of the Statefalling under Article 12 of the Constitution are themselvescompetent to make such provision, if so advised. (Paras 735-737)

E(b) An executive order making provision under Article 16(4) isenforceable the moment it is made and issued. (Paras 738-740)”[See also in this context Gaurav Pradhan v State ofRajasthan[37].]

53. The Reservation Act 2004 was enacted by the State legislatureFin 2001. The assent of the Governor was received on 20 January 2004and it was published in the Official Gazette on 22 January 2004. Theenactment has come into force after the 85th constitutional amendment.Prior to the enforcement of the Act, reservations were confined uptothe entry level in Group I posts, this being common ground during theGcourse of the hearing. As result of the enactment of the law, reservationsare applicable to all appointments in public services and posts [exceptcategories covered by clauses (a) to (d) of sub-section (1) of Section 3].

54. Section 3 deals with the applicability of the Act and Section 4deals with reservation and percentages:

“Section 3 - Applicability

(1) This Act shall apply to all appointments made in public servicesand posts except,-

(a) the super specialised posts in Medical, Technical andEducational field;

(b) the posts to be filled by transfer or deputation;

(c) the temporary appointments of less than forty-five daysduration; and

(d) the posts which is single (isolated) in any cadre or grade.”

Sub Sections (1) and (2) of Section 4 read thus:

“Section 4 - Reservation and percentage

(1) Unless otherwise provided by or under this Act, the postsreserved for the Scheduled Castes, Scheduled Tribes, De-notifiedTribes (Vimukta Jatis), Nomadic Tribes, Special BackwardCategory and Other Backward Classes shall not be filled in bythe candidates not belonging to that, caste, tribe, category or classfor which the posts are reserved.

(2) Subject to other provisions of this Act, there shall be postsreserved for the persons belonging to the Scheduled Castes,Scheduled Tribes, De-notified Tribes (Vimukta Jatis), NomadicTribes, Special Backward Category and Other Backward Classes,at the stage of direct recruitment in public services and postsspecified under clause (j) of section 2, as provided below :-

ASub-section (3) of Section 4 provides thus:

“(3) The reservation specified for the categories mentioned atserial numbers (3) to (6) (both inclusive) in the table under sub-section (2) shall be inter transferable. If suitable candidates forthe posts reserved for any of the said categories are not availablein the same recruitment year, the posts shall be filled by appointingsuitable candidates from any of the other said categories.”

55. Sections 5 and 6 provide thus:

“Section 5 - Reservation in promotion

(1) The reservation in promotion shall be at all stages of promotions.

(2) On the date of coming into force of this Act, if any Governmentorders providing for reservation for any posts to be filled bypromotion, are in force, the same shall continue to be in forceunless modified or revoked, by Government.

DSection 6 - Carrying forward of reserved vacancies

(1) If in respect of any recruitment year, any vacancy reservedfor any category of persons under sub-section (2) of section 4remains unfilled, such vacancy shall be carried forward upto fiveyears in case of direct recruitment and three years in case ofpromotion:

Provided that, on the date of commencement of this Act, if anyGovernment orders regarding filling up the posts, in case of nonavailability of Backward Class candidates are in force, suchGovernment orders shall continue to be in force unless modifiedor revoked, by Government.”

Section 11 provides thus:

“Section 11 - Irregular appointments void protection ofaction taken in good faith

Any appointments made, in contravention of the provisions of thisAct shall be void.”

56. Sub-section (1) of Section 5 stipulates that reservation inpromotion shall be at all stages of promotions. Consequently, promotionswithin Class I posts are also governed by the rule of reservation.

57. According to the appellant, the Reservation Act 2004 clearlyprovides in sub-section (2) of Section 5 and the proviso to sub-section(1) of Section 6, which category of government orders predating the Actstand saved. Mr Patwalia submits that the long title to the ReservationAct 2004 indicates that the law was enacted to provide for reservationand “for matters connected therewith or incidental thereto”. Thesubmission is that while making law for the purpose of reservation, thestate government did not incorporate provision for consequentialseniority. Moreover, the proviso to Section 6 saves government ordersdealing with the filling up of unfilled posts reserved for backward classcandidates. Hence, it was urged that the GR dated 20 March 2003 doesnot survive the enactment of the Reservation Act 2004 and in any event,it has not been saved by Section 5 or Section 6. Moreover, Section 11stipulates that any appointment made in contravention of the provisionsof the Act shall be void.

58. On the other hand, Mr Giri has met this submission by urgingthat the Reservation Act 2004 does not deal with the issue of consequentialseniority. Hence the GR dated 20 March 2003 will continue to apply. Itwas urged that though the GR dated 20 March 2003 is an executiveorder, this is valid or competent mode of giving effect to the principleof consequential seniority as recognized by the decision of this Court inIndra Sawhney (supra).

59. We have already noticed the decision in Indra Sawhney (supra)as having laid down that provision for reservation can be incorporatedin an executive order. We are not inclined to accede to the submissionof the appellant that the GR dated 20 March 2003 will cease to remain inforce after the enactment of the Reservation Act 2004. The ReservationAct has not dealt with issue of consequential seniority. Sub-section (2)of Section 5 saves government orders providing for reservation of anyposts to be filled in promotion which were in force on the date of theenactment of the Act. Similarly, the proviso to sub-section (1) of Section6 saves government orders regarding the filling up of unfilled postsreserved for Backward Class candidates in force on the date of thecommencement of the Act. The GR dated 20 March 2003 deals withthe determination of seniority while sub-section (2) of Section 5 dealswith orders providing for reservation. The GR dated 20 March 2003 isundoubtedly not government order which falls within the purview ofeither sub-section (2) of Section 5 or the proviso to sub-section (1) of

ASection 6. However, the enactment of the Act by the state legislaturecannot be construed as legislative intent to override or abrogate theprinciple of consequential seniority incorporated in governmentresolutions. provision for consequential seniority can certainly beincorporated in an executive order issued in pursuance of the provisionsof Article 162 of the Constitution.[38]

60. The Government Resolution dated 20 March 2003 has notbeen abrogated upon the enactment of the Reservation Act 2004. TheReservation Act 2004 does not deal with the principle of consequentialseniority. It would be impermissible to read the Act as having supersededthe applicable government orders on consequential seniority, in theCabsence of clear words providing for such an effect.

61. further submission which was urged on behalf of the appellantis that until the Reservation Act 2004 was enacted, reservations inpromotions were not available within Class I posts. Mr Patwalia urgedthat when the GR dated 20 March 2003 was issued, there was noDreservation within Class 1 posts and that in consequence, consequentialseniority needs to be restricted in its application to posts other than Class1 posts.

62. This again, is an attempt to urge the Court to read the GRdated 20 March 2003 in restrictive manner on the basis of theEReservation Act 2004. The GR dated 20 March 2003, while incorporatingthe principle of consequential seniority, reiterates the GR dated 20 October1997. It also adverts to the Seniority Rules 1982 of which Rule 4 specificallystipulates that the length of continuous service will be determinative ofseniority in respect of posts and cadres in the service. Accepting theFsubmission of the appellant would lead to an anomalous situation whereconsequential seniority will be made applicable to posts below Class 1,and the catch-up rule will apply to Class 1 posts. An interpretationwhich results in this anomaly must be eschewed, particularly in theabsence of challenge to the GR dated 20 March 2003 and the SeniorityRules of 1982.G

38 “162. Subject to the provisions of this Constitution, the executive power of Stateshall extend to the matters with respect to which the Legislature of the State has powerto make laws:

Provided that in any matter with respect to which the Legislature of State andParliament have power to make laws, the executive power of the State shall be subjectto, and limited by, the executive power expressly conferred by this Constitution or byHany law made by Parliament upon the Union or authorities thereof.”

63. The appellant has, in the course of the submissions of MrPatwalia, sought to urge that the GR dated 20 March 2003 is contrary tothe ratio of the decision of the Constitution Bench of this Court in Nagaraj(supra). It was urged that before provision for consequential senioritycan be incorporated, the state is under mandate to collect quantifiabledata with reference to (i) inadequacy of representation; and (ii) the effecton the efficiency of administration. Mr Patwalia urged that in the absenceof quantifiable data, the GR dated 20 March 2003 is ultra vires. In thiscontext, it was urged that in the absence of an exercise by the state tocollect quantifiable data, the principle enunciated by this Court in Nagaraj(supra) and as applied by the subsequent decisions of this Court in SurajBhanMeena (supra), UP Power Corporation (supra), PanneerSelvam (supra)and KPavitra (supra) would be attracted.

64. challenge to the GR dated 20 March 2003 is conspicuous byits absence in the reliefs which were sought before the MaharashtraAdministrative Tribunal. We have adverted to the reliefs claimed in anearlier part of this judgment and they are indicative only of challengeto seniority. Entertaining challenge to the validity of GovernmentResolution incorporating the principle of consequential seniority withouta specific challenge being addressed before the Tribunal would simplybe impermissible. Entertaining such challenge at this stage will haveserious consequences in the entire State of Maharashtra by upsetting asignificant number of promotions which may have already been grantedto candidates belonging to the reserved category. The State government,in the pleadings before the Tribunal and the High Court was not calledupon to justify the basis of its decision to adopt consequential seniority inthe absence of challenge being squarely set up in the forum of firstinstance.65. challenge to the resolution providing for consequentialseniority is indeed serious matter. Such challenge calls upon thecourt to upset policy circular which has been issued with the avowedobjective of safeguarding consequential seniority which was, as ourconstitutional history indicates, clear purpose underlying the 85thAmendment to the Constitution. Such constitutional challenges cannotbe bandied about without specific pleadings. We are clearly of the viewthat such an exercise would be impermissible in the absence of frontalchallenge.

A66. In Suraj Bhan Meena (supra), the petitioners had challengeda notification dated 25 April 2008 issued by the State of Rajasthan underthe proviso to Article 309 of the Constitution, amending the Rajasthan“Various Service Rules” with effect from 28 December 2012. This waschallenged on the ground that the deletion amounted to givingconsequential seniority to candidates belonging to the Scheduled CastesBand Tribes without carrying out the exercise of collecting quantifiabledata.

67. In UP Power Corporation (supra),there was specificchallenge before the High Court of Judicature at Allahabad to the validityof Rule 8-A of the UP Government Servants Seniority Rules 2007.CSection 3 of the Uttar Pradesh Public Services (Reservation forScheduled Castes, Scheduled Tribes and Other Backward Classes) Act1994 and Rule 8-A of the 1991 Rules brought into force in 2007 werechallenged as being ultra vires and unconstitutional. As consequence,the consequential orders relating to seniority were impugned. OnceDagain, the challenge was on the ground that the exercise which wasrequired in pursuance of the decision of this Court in Nagaraj (supra)had not been carried out.

68. In Panneer Selvam (supra), Rule 12 of the Special Rules toTamil Nadu Highways Engineering Service provided that the rule ofEreservation of appointments (General Rule 22) shall apply to theappointment of Assistant Divisional Engineers by direct recruitment andby transfer of the appointment of Assistant Engineers. This Court heldthat Rule 12 did not provide for consequential seniority and, in the absenceof provision for consequential seniority catch-up rule will be applicable.The litigation in Panneer Selvam (supra) did not engage situationFsuch as the present where the GR dated 20 March 2003 specificallyprovides for consequential seniority.

69. The decision in BK Pavitra (supra) involved specificchallenge to the validity of the Karnataka Determination of Seniority ofthe Government Servants promoted on the basis of Reservation (to theGposts in the Civil Services of the State) Act 2002. The Act was struckdown by two judge Bench of this Court on the ground that the Statehad not undertaken an exercise to establish “compelling necessity”since no material had been placed by the State on record.

70. All these decisions (except the decision in Panneer Selvam)involved specific challenge to the validity of administrative notificationsor, as the case may be, an Act of the legislature. Panneer Selvam(supra) was case where in the absence of provision for consequentialseniority, it was held that the catch-up rule will prevail. In the presentcase, there is specific provision for consequential seniority in the GRdated 20 March 2003. Absent challenge to the GR in the proceedingswhich were initiated before the Tribunal, such challenge cannot beentertained at this stage.

71. On behalf of the appellant, it has been urged that the promotionwhich was granted to the first respondent on 11 August 2011 as JDTP ispurely ad-hoc and has not been regularized. This submission has beenbuttressed by relying upon three documents:

(i) The promotion order dated 11 August 2011 which states that anad-hoc promotion has been granted to the first respondent onthe post of JDTP, subject to the outcome of the decision of theBombay High Court in Writ Petition 8452 of 2004;

(ii) The counter affidavit filed by the State before the MAT whichstates that:

“Shri N R Shende (Scheduled Caste) was promoted as JointDirector of Town Planning on 11/08/2011 after following dueprocedure and provisions of prevailing rules for promotion, withthe approval of General Administration Department, EstablishmentBoard as well as Government. Though his promotion is on adhocbasis, and on regular post, it will be regularized with the approvalof Maharashtra Public Service Commission. Even the applicantis also promoted on upgraded post of Joint Director of TownPlanning on ad-hoc basis vide Government Resolution dated02/07/2013 and it also will be regularized with the approval ofMaharashtra Public Service Commission.”

(iii) reply to query addressed by the appellant under the Rightto Information Act 2005 on 8 March 2016 stating that:

“Mr N R Shende, Joint Director, Town Planning has been grantedadhoc promotion to the post of Joint Director of Town Planningvide Government Resolution No. TPV-1110/624/CR.170/2010/

988SUPREME COURT REPORTS

AUD-27 dt. 11.08.2011. Provision is made that said promotion willbe regularized with concurrence of General AdministrationDepartment and approval of Maharashtra Public ServiceCommission.”

72. Another limb of the submission is that the promotion whichBwas granted to the first respondent was in terms of the GAD Circulardated 27 October 2008 which contemplated the inter-changeability ofreserved posts between reserved categories. The circular was struckdown by the Bombay High Court on the ground that after the enactmentof the Reservation Act 2004, interchangeability of posts was specificallyprohibited. Moreover, it was submitted that regular post of JDTP becameCavailable to the first respondent only when the cadre strength increasedfrom two to eight on 29 December 2012, resulting in simultaneousincrease in the posts for reserved categories from one to three. Thesubmissions of the appellant have been countered by urging that thereason why the promotion of the first respondent has been treated asDad-hoc is because there was challenge pending to the Reservation Act2004 at the material time before the Tribunal / High Court in Writ Petition8452 of 2004.

73. The submission of the appellant is based on the hypothesisthat the promotion of the first respondent is ad-hoc and hence, he is notEentitled to consequential seniority in terms of the GR dated 20 March2003, which speaks of the “regular date of promotion”. In assessing thissubmission, it is necessary to note that the order of promotion dated 11August 2011 indicates the reason as to why the promotion was treatedas ad-hoc. The reason was the pendency of Writ Petition 8452 of 2004before the Bombay High Court where there was challenge to theFReservation Act 2004. Indeed, the order of promotion dated 2 July 2013by which the appellant was promoted to the post of JDTP also statesthat the promotion is ad-hoc. Significantly, in the case of the appellant aswell, the reason why the promotion is treated as ad-hoc is also thependency of Writ Petition 8452 of 2004.G

74. policy circular was issued by the State of Maharashtra on 1April 2008 to all departments directing that promotions will be subject tothe outcome of the decision in the above Writ Petition. Special LeavePetitions against the judgment of the Bombay High Court in the

Writ Petition[39] are pending adjudication before this Court. The Tribunal,by its order dated 28 November 2014 struck down the Reservation Act,2004 and the GR dated 25 May 2004. The judgment of the Tribunal wasstayed by the Bombay High Court on 20 March 2015.On 4 August 2017,the High Court set aside the decision of the Tribunal to the extent that itstruck down the Reservation Act 2004. The High Court kept the issueof constitutional validity open. The State of Maharashtra has filed aSpecial Leave Petition which is pending before this Court.

75. Mr Giri, learned Senior Counsel appearing on behalf of thefirst respondent submitted that though the word ad-hoc has been used inthe order of promotion, the due process of promotion was followed beforethe first respondent was promoted to the post of JDTP. In urging thissubmission, Mr Giri has relied on the communication dated 7 January2011 of the Deputy Secretary to the Government of Maharashtra to thePrincipal Secretary, Services, GAD. He submits that (i) only two postswere available in the cadre of JDTP, one of which is set apart for thereserved categories; (ii) no other eligible officer was available to fill upthe said post from amongst the reserved categories and hence the firstrespondent was recommended for promotion; and (iii) in any event, theappellant who is an open category candidate cannot have right ofappointment to post for the reserved categories on which the firstrespondent was appointed.

76. Alternately, it has been urged on behalf of the first respondentthat even presuming that the seniority of the appellant is protected in thecadre of JDTP, the fact remains that he did not have the requisite eligibilityto be considered for promotion to the post of Director, Town Planning.The appellant was promoted to the post of JDTP on 2 July 2013. Mr Girihas urged that even if the catch-up rule were to prevail on the groundthat the promotion of the first respondent is only ad-hoc: (i) Rule 3 of theDirectorate of Town Planning and Valuation (Recruitment) Rules 2011prescribes that an officer holding the post of JDTP must necessarilyserve in the post for minimum of three years to be considered eligiblefor promotion to the post of DTP; (ii) upon superannuation of Mr RajanKop from the post of DTP, vacancy in the post arose on 30 April 2016;(iii) as on the date when the vacancy occurred in the post of DTP, theappellant did not fulfill the eligibility criterion of three years’ experience

39SLP (C) No 28306 of 2017 and others

Aas JDTP and the first respondent as the senior-most eligible officer, wasentitled to be appointed to the post. The state has issued GR dated 5October 2015 under which the condition prescribing the minimum requiredexperience for promotion cannot be relaxed; and (iv) seniority andeligibility are different concepts and merely because person is seniordoes not make an individual eligible for consideration.B

77. On the above foundation, it has been urged that even if thecatch-up rule is made applicable to the appellant in the post of JDTP, hewas not eligible to be considered for promotion as DTP in terms of Rule3 which requires minimum of three years’ experience as JDTP. Thecatch-up rule, in this submission, provides for notional state of affairsCvis-à-vis person who was earlier promoted under reserved category.In other words, the catch-up rule will not provide actual service requiredto fulfill the requirement of eligibility.78. Eligibility has to be considered on the date of the occurrenceof the vacancy. On 30 April 2016, the appellant did not fulfill the eligibilityDrequired for the post of DTP. In assailing the decision of the firstrespondent, as we have noted, the appellant has submitted that thepromotion of the first respondent as JDTP on 11 August 2011 was undera circular dated 27 October 2008 which has been struck down by theBombay High Court. The High Court in dealing with this submissionEhas held that the order of promotion, when it was issued on 11 August2011 had an imprint of legality. Moreover, even the appellant adoptedthe position that since promotion was given to the first respondent interms of the Government Circular dated 27 October 2008, he believedthat he had no reason to object to the seniority list of JDTP published on28 August 2014. That apart, the High Court has noted that after theFpromotion of the first respondent on 11 August 2011, the appellant waspromoted on 2 July 2013 and it was only when the second seniority listwas finalized on 15 January 2016 that the appellant filed an OA inFebruary 2016. In the meantime, the appellant had worked as JDTP fora period of nearly five years. In declining to allow the issue of seniorityGto be challenged at this belated stage, the High Court relied upon thedecisions of this Court in Roshan Lal v International AirportAuthority of India[40], P Chitharanja Menon v Balakrishnan[41]andAmarjeet Singh v Devi Ratan[42].

40(1980) Suppl.SCC 44941(1977) 3 SCC 255H42(2010) 1 SCC 417

79. The delay has, in our view,justifiably weighed with the HighCourt. Coupled with this is an equally relevant consideration which mustweigh with the court: the appellant has not challenged the appointmentof the first respondent as JDTP. Having failed to challenge theappointment, it is now not open to the appellant to assert that theappointment must be treated as void on the ground that the circular onthe basis of which the first respondent was promoted has subsequentlybeen set aside in judgment of the Bombay High Court[43].

80. The first respondent has urged that his appointment as JDTPwas not challenged by the appellant for the reason that any challengewould have attracted the bar of limitation. Whatever be the reason, thefact remains that the appointment of the first respondent as JDTP hasnot been assailed in the OA filed before the Tribunal. Consequently, it isnot open to the appellant to lay challenge on the ground that theappointment was based on circular which was held to be invalid afterthe appointment was made. The submission that the appointment isfortuitous within the meaning of Rule 3(f) is but another modality ofseeking to deprive the first respondent of the consequence of hisappointment and to his consequential seniority.

81. Rule 3 of the Directorate of Town Planning and Valuation(Recruitment) Rules 2011 provides as follows:

“3. Appointment to the post of the Director of Town Planning,Group-A shall be made by promotion of suitable person on thebasis of strict selection with due regard to seniority, from amongstthe persons holding the post of Joint Director of Town Planning inthe Directorate, having not less than three years regular servicein that post.”

The fact that the vacancy occurred on 30 April 2016, on theretirement of the then DTP has not been disputed in the course of thesubmissions of the appellant. On the date when the vacancy occurred,the appellant clearly did not fulfill the eligibility criterion of three years’experience as JDTP. The appellant who was promoted on 2 July 2013did not fulfill the criterion prescribed by Rule 3. The contention urged byMr Patwalia that the tenure served by the appellant in the posts of DDTPand JDTP must be coupled together for the purpose of determining

43Mahasangh, (2013) 5 Mh LJ 640

Aeligibility cannot be accepted as Rule 3 clearly stipulates that an eligibleJDTP must have three years of regular service in that post.

82. In R Prabha Devi v Union of India[44], two Judge Benchof this Court formulated the principle in the following terms:

“The rule-making authority is competent to frame rules layingBdown eligibility condition for promotion to higher post. Whensuch an eligibility condition has been laid down by service rules, itcannot be said that direct recruit who is senior to the promoteesis not required to comply with the eligibility condition and he isentitled to be considered for promotion to the higher post merelyCon the basis of his seniority.…

Seniority in particular cadre does not entitle public servant forpromotion to higher post unless he fulfils the eligibility conditionprescribed by the relevant rules. person must be eligible forpromotion having regard to the qualifications prescribed for theDpost before he can be considered for promotion. Seniority will berelevant only amongst persons eligible. Seniority cannot besubstituted for eligibility nor can override it in the matter ofpromotion to the next higher post.”

Seniority and eligibility are distinct concepts in serviceEjurisprudence. Seniority by itself cannot prevail where senior lackseligibility for promotion to higher post [See in this context PalureBhaskar Rao v P Ramaseshaiah[45]]. Even if the contention of theappellant on the applicability of the catch-up rule were to be accepted,that will not obviate the requirement of his fulfilling the condition ofeligibility for promotion to the next higher post, on the date when theFvacancy occurred.

83. The appellant failed to challenge the appointment of the firstrespondent as JDTP on 11 August 2011. The appellant failed to challengethe circular dated 20 March 2003 providing for consequential seniority.The substratum of the challenge which has been developed before thisGCourt is without basis in the pleadings. The ingenuity and industry of thelearned counsel who appeared on behalf of the appellant cannot, in theultimate analysis, be substitute for deficient pleading.

44 (1988) 2 SCC 23345 (2017) 5 SCC 783H

84. submission was sought to be advanced on the basis of theprinciple that an appointment made contrary to the rules is merelyfortuitous and does not confer the benefit of seniority on the appointeeover and above the regular/substantive appointees to the service (SanjayK Sinha-II v State of Bihar)[46]. The same principle was emphasized inBhupendra Nath Hazarika v State of Assam[47]:

“..when the infrastructure is founded on total illegal edifice, theendeavor to put forth claim for counting the previous service tobuild pyramid is bound to founder.”

[See also PV George v State of Kerala[48 ]and BA Linga Reddyv Karnataka State Transport Authority[49](relied upon to buttress thesubmission that the power of the High Court to strike down cannot beexercised prospectively)].

85. The answer to the submissions is simple: the appellant did notat any stage challenge the appointment of the respondent to the post ofJDTP nor did he challenge the GR dated 20 March 2003 providing forconsequential seniority. The appellant was not eligible for the post ofDTP on 30 April 2016, when the vacancy occurred. He cannot, hence,challenge the appointment of the first respondent.

86. For the above reasons, we have come to the conclusion thatthere is no substance in the appeals. The judgment of the High Courtdoes not call for any interference, though for the reasons which wehave indicated. The Civil Appeals shall stand dismissed. There shall beno order as to costs.

CIVILAPPEALNos 2471-2473 OF2019

@ SPECIAL LEAVE PETITION (CIVIL) Nos. 14041-14043 OF2018

87. In view of the judgment in Civil Appeals @ Special LeavePetition(C) Nos 8769-8771 of 2018 rendered today, these appeals arealso dismissed with no order as to costs.

46(2004) 10 SCC 734 at 74247(2013) 2 SCC 51648(2007) 3 SCC 55749(2015) 4 SCC 515

[2019] 4 S.C.R.

AMA Nos 2983-2985 OF 2019

@ SPECIAL LEAVE PETITION (CIVIL) Nos.33086-33088 OF2017

88. In view of the judgment in Civil Appeals @ Special LeavePetition (C) Nos 8769-8771 of 2018 rendered today, these MAs areBdisposed of, in terms of the judgment and order in the lead appeals.

Divya Pandey

Appeals dismissed.