Harish Maganlal Baijal vs State Of Maharashtra & Ors

Harish Maganlal Baijal ... Petitioner

Vs.

State of Maharashtra & Ors. ... Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. The petitioner appeared in the Maharashtra

State Service (Main), Examination, 1990, which was

held for the filling up of 22 posts of Deputy

Superintendent of Police/Assistant Commissioner of

Police, Class-I. In his application, the Petitioner 2

gave his first preference for appointment to the

post of Deputy Superintendent of Police (DSP)/

Assistant Commissioner of Police, Class-I, and his

second preference for the post of Sales Tax

Officer, Class-I. Having secured 604 marks, the

Petitioner did not qualify for one of the 14

vacancies in the open category and was placed

immediately after the list of successful

candidates. Out of the 22 vacant posts, the first

14 posts were for candidates from the open category

and 8 posts were reserved for candidates from the

Scheduled Caste and Scheduled Tribes and Other

Backward Classes categories.

2. Since there were only 14 vacancies in the open

category for the post of DSP, the Petitioner in

keeping with his second preference, was appointed

as Sales Tax Officer, Class-I, and he joined his

duties in the said post on 22nd April, 1992. 3

3. Of the 14 candidates selected in the open

category in the post of DSP, 3 candidates, 2 from

the open category and one from the reserved

category, were found to be physically unfit for the

said post. On coming to learn of the above, the

petitioner made a representation to the Minister of

Home Affairs on 21st June, 1992, asking that the

Maharashtra Public Service Commission be directed

to recommend names from the 1990 batch according to

the merit list, to fill up the vacancies caused.

The Petitioner and two others were thereupon

recommended by the Commission by its letter dated

6th November, 1992, and called upon by the State

Government to join duty as DSP/Assistant

Commissioner of Police, Class-I, as replacement

candidates, and although the formalities for

appointment were completed in December, 1992,

appointment letter was issued to the Petitioner

only on 30th August, 1993, and the Petitioner joined

his duties in the post of DSP on 15th September, 4

1993. In the letter of recommendation written by

the Maharashtra Public Service Commission on 6th

November, 1992, it was categorically mentioned that

the replacement candidates were to be placed after

the respondent No.8, Madhukar Shankar Talpade,

despite the fact that the petitioner had obtained

higher marks than Shri Talpade in the examination.

The said fact came to the petitioner's knowledge

after the publication of the provisional

gradation/seniority list.

4. The provisional gradation/seniority list of the

cadre of DSP/Assistant Commissioner of Police

(Unarmed) came to be published by the Secretary,

Home Department, Maharashtra State, in which the

Petitioner was placed at serial No.238 and the

Respondent Nos.5, 6, 7 and 8, who were from the

same batch as the Petitioner, were shown at serial

nos.200, 201, 202 and 203, respectively. From the

said seniority list, it further transpired that 5

candidates from serial Nos.188 to 202 were all from

the same batch of direct recruits appointed in the

year 1992. However, although the Respondent No.7

(Mr. Kumbhare) had joined the service on 15th

September, 1993, along with the Petitioner, he was

given seniority with effect from 15th July, 1992,

along with the other batch mates of 1990 on the

basis of contemporaneous merit/rank position

prepared by the Maharashtra Public Service

Commission, the Respondent No.4 herein. According

to the Petitioner, if the same yardstick, as was

applied in Mr. Kumbhare's case, had been applied to

the Petitioner, his name would have appeared after

Sanjay Devidas Baviskar, who had secured 605 marks

and was placed at serial No.199 and before Sanjay

Yashwant Gaikawad Aparati, the Respondent No.5, who

having obtained 603 marks was placed at serial

No.200. It is the Petitioner's case that having

obtained higher marks than the Respondent No.5, he

should have been placed at serial No.200 of the 6

gradation list instead of the Respondent No.5.

5. Aggrieved by the above, the Petitioner made a

representation to the Maharashtra Public Service

Commission, but the same was rejected in June,

2003, on the ground that the seniority position

assigned to the Petitioner was in keeping with the

recommendation made by the Secretary, Home

Department, Maharashtra State and could not,

therefore, be changed.

6. Being dissatisfied with the manner in which his

representation had been rejected, the Petitioner

filed an application before the Maharashtra

Administrative Tribunal, Aurangabad, being Original

Application No.556 of 2003. The said application

was subsequently transferred to the Maharashtra

Administrative Tribunal, Mumbai, and renumbered as

O.A. No.78 of 2004. A similar application being

O.A. No.867 of 2003 was filed by one Mahesh R.

Ghurye. By a common judgment and order dated 16th 7

September, 2004, the Maharashtra Administrative

Tribunal, Mumbai Bench, rejected the Petitioner's

Application. The writ petition filed by the

Petitioner before the Bombay High Court in this

regard was rejected by an order dated 8th January,

2008, which has been impugned in the instant

Special Leave Petition.

7. Appearing in support of the Special Leave

Petition, Mr. Srenik Singhvi, learned Advocate,

urged that under Rule 4(2) of the Maharashtra Civil

Services (Regulation and Seniority) Rules, 1982,

the Petitioner was entitled to be placed in the

seniority list in accordance with the marks

obtained by him in the 1990 examination.

Therefore, the direction given by the Maharashtra

Public Service Commission to place the Petitioner

below the last candidate out of the 22 candidates

selected was not only erroneous, but arbitrary and

in violation of the above-mentioned Rule. Mr. 8

Singhvi submitted that the learned Tribunal had

erred in dismissing the Petitioner's Original

Application.

8. As far as the High Court is concerned, Mr.

Singhvi submitted that it had proceeded on the

erroneous basis that the Petitioner had been

selected from the waiting list of candidates,

whereas the Petitioner was one of the originally

selected candidates, but could not be appointed on

account of the number of vacancies. Learned

counsel submitted that the gradation list prepared

by the Respondent No.2 was, therefore, liable to be

set aside with a direction to place the name of the

Petitioner at serial no.200 instead of serial

No.238. It was submitted that since Mr. Kumbhare's

appointment was withheld on account of the

discrepancy in his caste certificate, he could not

have been given seniority over the Petitioner who

joined his duties as Sales Tax Officer, Class-I, on 9

22nd April, 1992, and was, thereafter, issued

appointment letter in the post of DSP on 30th

August, 1993. Mr. Singhvi submitted that had the

disqualification of the three candidates been taken

into consideration at the time of preparation of

the select list, the Petitioner would have been

within the first 14 candidates from the open

category on account of the marks obtained by him in

the examination conducted in 1990 for filling up

the 22 vacant posts. Instead, a direction was

given by the Respondent No.2 to place him below Mr.

Kumbhare, who had obtained lower marks than the

Petitioner.

9. Mr. Singhvi also submitted that although Mr.

Kumbhare had joined as D.S.P. on 15th September,

1993, along with the Petitioner, he had been given

seniority with effect from 15th July, 1992, along

with his other batch mates while the Petitioner was 10

given seniority from the date of his appointment as

D.S.P.

10. In support of his submissions, Mr. Singhvi

referred to and relied on the decision of this

Court in P.M. Latha vs. State of Kerala

[(2003) 3 SCC 541], in which the equitable relief

granted to certain candidates holding a higher

qualification than was required was deprecated by

this Court and such appointments were set aside

upon it being observed that equity and law are twin

brothers and law should be applied and interpreted

equitably, but equity cannot override written or

settled law.

11. Mr. Singhvi submitted that the order passed by

the Secretary, Home Department, Maharashtra State,

which was later confirmed by the Administrative

Tribunal and the High Court, was liable to be set

aside along with the order passed by the Tribunal

and the High Court.

11

12. As against Mr. Singhvi's submissions, Mr.

Vineet Dhanda, learned counsel, who appeared for

the respondent Nos.5 to 8, submitted that as would

be evident from the seniority list of DSPs and

ACP Police Officers (Unarmed) published on

1st February, 2001, that candidates who had been

selected for the first 14 posts, which were

reserved for candidates from the open category, had

obtained higher marks than the petitioner. It is

thereafter that the remaining posts, which were

reserved for candidates from the Scheduled Castes

and Scheduled Tribes categories, were filled up

with candidates from the reserved category who had

obtained less marks than was obtained by the

petitioner. Mr. Dhanda submitted that from the said

seniority list it would be clear that Shri Madhukar

Shankar Talpade was the last Scheduled Caste

candidate to be appointed, whose marks were less

than that obtained by the petitioner. However, the 12

said eventuality was on account of the fact that of

the 22 vacancies, the first 14 were meant for

candidates from the open stream, whereas the next 8

posts were reserved for candidates from the

Scheduled Castes and Scheduled Tribes categories.

13. It was submitted that not having been selected

for the post of DSP, the petitioner had been

appointed to the post of Sales Tax Officer, Class-

I, which was his second preference. It is only on

account of fortuitous circumstances, when three of

the original candidates selected, two from the open

category and one from the reserved category, were

found to be ineligible for appointment, that the

petitioner and two others were recommended by the

Maharashtra Public Service Commission for

appointment to the post of DSP. Mr. Dhanda

submitted that not having been initially selected,

the petitioner could not claim seniority over those 13

candidates who had been selected at the initial

stage.

14. Similar submissions were advanced on behalf of

the State of Maharashtra by Mr. Arun R. Pednekar

and, in addition, it was pointed out that even if

the three disqualified candidates had not been

considered initially, the petitioner would still

not have been included among the first 14

candidates since there were others before him from

the open category who had obtained higher marks

than him. It was urged that the last recommended

candidate for the post of DSP/ACP in the open

category had secured 610 marks and there were three

other candidates from the open category above the

petitioner who had obtained higher marks than the

petitioner, so that even if the candidates who had

been subsequently found ineligible had been

considered at the first instance, the petitioner

would not have found a place within the first 14 14

candidates who were to be appointed from the open

category.

15. It was lastly contended that having regard to

the submissions advanced on behalf of the

petitioner vis-`-vis his appointment as DSP along

with the respondent No.7 Mr. Kumbhare, the

petitioner had, no doubt, joined his duties on the

same day as Mr. Kumbhare, but Mr. Kumbhare was a

candidate from the Scheduled Caste category and

had, therefore, been included in the select list

for appointment subject to verification of his

Caste Certificate. It was submitted that Mr.

Kumbhare's case stood on a different footing from

that of the petitioner and the contention of the

petitioner in this regard had been rightly rejected

both by the Tribunal as well as the High Court.

16. Having carefully considered the submissions

made on behalf of the parties, we see no reason to

interfere with the order of the Tribunal as 15

affirmed by the High Court. Admittedly, out of all

the 22 vacant posts, the first 14 posts were to be

filled up by candidates from the open category and

the remaining 8 vacancies were reserved for

Scheduled Caste and Scheduled Tribes candidates.

The last candidate to be included in the first 14

vacancies had obtained 610 marks, whereas the

petitioner had obtained 604 marks. In between the

last candidate and the petitioner there were 3

other candidates who had obtained 608, 607 and 605

marks, respectively, so that, in any event, even if

the 3 ineligible candidates had been excluded from

the very beginning, the petitioner still could not

have been included among the first 14 candidates,

particularly when one of the ineligible candidates

was from the Scheduled Caste and Scheduled Tribes

category.

17. Apart from the above, the selection of the

petitioner along with two other candidates as 16

substituted candidates in place of the three

ineligible candidates, was under fortuitous

circumstances since the original selection had

already been made and in keeping with the marks

obtained by him and his second preference, the

petitioner had been appointed as Sales Tax Officer,

Class-I and he, in fact, joined in the said post on

22nd April, 1992. The petitioner`s contention that

since both Mr. Kumbhare and he had joined the post

of DSP on 15th September, 1993, their seniority

should have been reckoned from the same day was

rightly rejected both by the Tribunal and the High

Court, having regard to the fact that while Mr.

Kumbhare had been included in the first select list

and his appointment was also deferred on account of

verification of his Caste Certificate, the

appointment of the petitioner who had already been

appointed and was functioning as Sales Tax Officer,

Class-I, in the post of DSP, was accidental in view

of the ineligibility of three candidates who had 17

been included in the initial list of selected

candidates. His claim for seniority could,

therefore, be reckoned only from the date of his

joining his duties as D.S.P.

18. It is also to be kept in mind that Mr. Kumbhare

had been initially selected for one of the reserved

posts from the Scheduled Castes and Scheduled

Tribes category and his appointment had only been

deferred for verification of his Caste Certificate.

In the case of the petitioner it was different, in

that, he was never included in the initial

selection list as a result whereof he was appointed

as Sales Tax Officer, Class-I, on account of the

marks obtained by him and his position in the list

of candidates who were successful in the

examination conducted by the Maharashtra Public

Service Commission in 1990. In our view, the view

taken by the Tribunal as well as the High Court in 18

this regard is the correct view and needs no

interference.

19. Even the petitioner's contention that he should

have been placed above Mr. Talpade lacks merit,

since Mr. Talpade was included in the original list

from the Schedule Castes category and he was,

therefore, entitled to be placed before the

petitioner in the gradation list from the date of

his joining as D.S.P. The reference made by Mr.

Singhvi to Rule 4(2) of the Maharashtra Civil

Services (Regulation of Seniority) Rules, 1982,

does not also help the petitioner's case. Rule 4

of the said Rules deals with the general principles

of seniority. Sub-Rule (2) of Rule 4, which deals

with inter se serniority of direct recruits

selected in one batch for appointment to any post,

cadre or service, reads as follows :

19

"4. General principles of seniority :

(1) ......

(2) Notwithstanding anything contained in sub-rule (1),-

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

(b) The inter se seniority of Government servants promoted from a Select List shall be in the same order in which their names appear in such Select List. If the Select List is prepared in two parts, the first part containing the names of those selected unconditionally and the second part containing the names of those selected provisionally. All persons included in the first part 20

shall rank above those included in the second part:

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

(C) The seniority of a transferred Government servant vis-`-vis the Government servants in the posts, cadre or service to which he is transferred shall be determined by the competent authority with due regard to the class and pay-scale of the post, cadre or service from which he is transferred, the length of his service therein and the circumstances leading to his transfer."

20. From the aforesaid provisions, it will be

apparent that the same refer to the seniority of

recruits selected in one batch. In the

petitioner's case, he was not so selected, but was

brought in as a replacement candidate, not from any

waiting list, but from the list of successful 21

candidates in the examination held as per the marks

obtained by them on the basis of the representation

made by him to the Home Minister on 21st June, 1992.

The aforesaid Rule, therefore, has no application

in the petitioner's case despite the fact that the

successful candidates as well as the petitioner

were from the same batch.

21. For the aforesaid reasons, the Special Leave

Petition must fail and is, accordingly, dismissed.

There will, however, be no order as to costs.

................................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH) New Delhi Dated: 07.05.2010