REPORTABLE        

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos   2468-2470  OF 2019 @ SPECIAL LEAVE PETITION (CIVIL) Nos. 8769-8771 OF 2018

Sudhakar Baburao Nangnure                                ... Appellant   

      Versus

Noreshwar Raghunathrao Shende & Ors                                   ...Respondents

WITH

CIVIL APPEAL Nos   2471-2473 OF 2019 @ SPECIAL LEAVE PETITION (CIVIL) Nos. 14041-14043 OF 2018

AND

WITH

MA Nos 2983-2985 OF 2018

IN

SPECIAL LEAVE PETITION (CIVIL) Nos. 33086-33088 OF 2017

1

J U D G M E N T

Dr  Dhananjaya Y Chandrachud, J.  

CIVIL APPEAL Nos    2468-2470  OF 2019: @ SPECIAL LEAVE PETITION (CIVIL) Nos. 8769-8771 OF 2018

1 Leave granted.

2 The  High  Court  of  Judicature  at  Bombay,  speaking  through  a  Division

Bench, dismissed three review petitions seeking a review of its judgment dated

16 November 2017. The review petitions were instituted before the High Court

following an order of a two judge Bench of this Court dated 12 December 2017.

Finding that there was no reason to review the earlier judgment, consistent with

the settled parameters governing the exercise of that jurisdiction, the High Court

dismissed the review petitions on 21 March 2018.  

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

4 The appellant as well as the first respondent are officers in the service of

the Government of  Maharashtra.  The appellant  belongs to  the open category

while the first respondent belongs to a Scheduled Caste. The chart with relevant

details regarding their appointments and promotions in the service of the state is

provided thus:

POSTING SUDHAKAR NANGNURE (OPEN CATEGORY)

NORESHWAR SHENDE (SC)

Planning Assistant 6.5.1983 --

2

Assistant Town Planner 6.5.1988 -- Town Planner 1.7.1992 1.7.1992 Dy.  Director  of  Town Planning (DDTP)

1.11.2003 3.8.2006

Joint  Director  of  Town Planning (JDTP)

2.7.2013 11.8.2011

Director of  Town Planning (DTP, MS)  

Eligible to be promoted on 3.7.2016

Promoted on 30.4.2016 subject to outcome of O.A.

No.269/2016.

5 The appellant joined service as a Planning Assistant in the Government of

Maharashtra on 6 May 1983. Both the appellant and the first respondent were

selected for the post of Town Planner on 1 July 1992, in the course of a process

initiated  by  the  Maharashtra  Public  Service  Commission1.  The  appellant  was

promoted  as  Deputy  Director  of  Town Planning2 on  1  November  2003,  by  a

nomination through the MPSC. The first respondent was promoted as DDTP on 3

August 2006.  

6 In the promotional cadre of Joint Director of Town Planning3, there were

two posts, one for open category candidates and the second for reservation on

roster points. On 7 January 2011, the post of JDTP was vacant for a Scheduled

Tribe  candidate  under  the  roster.  However,  relying  upon  a  circular  dated  27

October 2008 of the General Administration Department4, the name of the first

respondent was recommended on 7 January 2011. Though the first respondent

belongs to a Scheduled Caste, he was promoted on an ad-hoc basis to the post

of  JDTP  on  11  August  2011.  On  2  July  2013,  by  virtue  of  a  Government

1 MPSC 2 DDTP 3 JDTP 4 GAD

3

Resolution5 dated 29 December 2012, the cadre strength of JDTP was enhanced

to eight posts, of which five posts were meant for the open category while three

posts were reserved. On 2 July 2013, the appellant was promoted to the post of

JDTP.  

7 Essentially, the case of the appellant is that in the seniority list of DDTPs,

he ranked senior to the first respondent. The first respondent was promoted as

JDTP on 11 August 2011 while the appellant was promoted later on 2 July 2013.

The appellant claims that once he was promoted as JDTP, the ‘catch-up’ rule

must  govern  and  in  consequence,  he  must  gain  seniority  over  the  first

respondent.  In  order  to  appreciate  this  aspect  of  the  appellant’s  grievance,

material facts pertaining to the seniority list are provided thus:  

SENIORITY LIST

(i) 14 February 2011

A circular for seniority list of DDTPs as on 1 January 2009 was issued. The

appellant stood at serial no 3 and the first respondent stood at serial no 9;

(ii) 1 June 2014

A letter was issued for the provisional seniority list of JDTPs as on 1 January

2014 on the basis of “date of appointment on present post”;   

(iii) 28 August 2014

5 GR

4

A circular was issued for the final seniority list of JDTPs as on 1 January 2014

on the basis of “date of appointment on present post”;  

(iv) 15 January 2016

A circular was issued for final seniority list of JDTPs as on 1 January 2015 on

the basis of “date of regular appointment/ regularized date of promotion”;

(v)  8 March 2016

In response to a query under the Right to Information Act 2005, the appellant

was informed that the promotion of the first respondent would be regularized

with the concurrence of GAD and with the approval of the MPSC in future; and

(vi)  30 April 2016

The incumbent in the post of Director of Town Planning6 was due to retire

upon which the post would fall vacant.

8 After lodging an objection to the seniority list dated 15 January 2016, the

appellant  filed  an  Original  Application7 before  the  Maharashtra  Administrative

Tribunal8. Simply put, the case of the appellant before the Tribunal was that even

assuming that the promotion of the first respondent as JDTP on 11 August 2011

(prior to the promotion of the appellant) against a reserved vacancy was regular

in nature, he was not entitled to claim consequential seniority on the basis of his

6 DTP 7 O.A. 269 of 2016 8 The Tribunal

5

earlier promotion in the cadre of JDTP as against the appellant (a candidate from

the general category) who was senior to him in the feeder cadre of DDTP.  

9 In the submission of the appellant, the grant of consequential seniority to

persons belonging to the reserved categories promoted earlier than their seniors

in the feeder cadre had not been expressly provided for by the State government

in the Maharashtra Civil  Services Seniority Rules or elsewhere. The appellant

also submitted that the State of Maharashtra had not undertaken any exercise to

quantify  and  demonstrate  the  inadequacy of  representation  to  the  Scheduled

Castes in the matter of promotion to the senior cadre in the Town Planning and

Valuation Department (Recruitment) Rules 1984. Absent such an exercise, it was

urged  that  the  mandate  of  a  Constitution  Bench  decision  of  this  Court  in  M

Nagaraj v Union of India9 (“Nagaraj”) had not been fulfilled. With this grievance,

the appellant asserted that:  

(i) As regards his promotion on 11 August 2011 as JDTP from the cadre of

DDTP,  the  first  respondent  as  a  Scheduled  Caste  candidate  was  not

entitled to a vacancy which was reserved for a Scheduled Tribe candidate.

However, he was promoted as JDTP on the basis of a GAD circular dated

27 October 2008. This circular was held to be ultra vires by a judgment of a

Division Bench of the Bombay High Court in  Magas Varga Karmachari-

Adhikari Suraksha Mahasangh v  State of Maharashtra (“Mahasangh”)

rendered  on  9  May  2013 at  its  Aurangabad  Bench10.  According  to  the

decision, the circular was contrary to the provisions of  the Maharashtra

9 (2006) 8 SCC 212 10 Writ Petition No. 3077 of 2011

6

State  Public  Services  Reservation  for  Scheduled  Castes,  Schedules

Tribes,  Denotified  Tribes  (Vimukta  Jatis),  Nomadic  Tribes,  Special

Backward Category and Other Backward Classes Act 200111;

(ii) The promotion of the first respondent as JDTP on 11 August 2011 was

fortuitous and not a regular appointment. Hence, he is not entitled to claim

the benefits of his promotion as JDTP and has been wrongly shown as

senior to the appellant in the final seniority list of the cadre; and

(iii) The final  seniority list  published by the State on 15 January 2016 is in

breach of the settled position of law governing consequential seniority for

reserved category promotees as settled by the Constitution Bench of this

Court in Nagaraj (supra).

10 Principally, on the above grounds, the appellant sought the following 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 of JDTP;

(ii) A direction to review and revise the seniority list in the cadre of JDTP as

on 1 January 2015, by fixing the seniority of the appellant above the

first respondent in conformity with his position in seniority in the feeder

cadre of DDTP; and

(iii) An  order  restraining  the  State  from  undertaking  the  exercise  of

selection for promotion to the post of DDTP on the basis of the final

seniority  list  published  on  15  January  2016 until  it  is  reviewed and

revised. 11 Act VIII of 2004. “Reservation Act 2004”

7

11 By  an  interim order  dated  1  April  2016,  the  Tribunal  directed  that  the

decision of the government would be subject to the outcome of the OA pending

before it.  Soon thereafter,  on 2 April  2016, the GAD Establishment Board – I

conducted a meeting where the first respondent was recommended for promotion

to the post of DTP. In a writ petition challenging the interim order of the Tribunal,

the High Court directed the Tribunal to decide the pending OA by 30 April 2016

(the post of DDTP was due to fall vacant on the retirement of the incumbent on

30 April 2016). On 18 April 2016, the Tribunal concluded the hearing and, while

reserving the judgment,  directed the case to be posted for pronouncement of

judgment  on  2  May  2016.  Shortly  before  that  date,  the  State  government

promoted the first respondent to the post of DTP on 30 April 2016. The Tribunal

by its judgment dated 2 May 2016 allowed the OA. It quashed the seniority list

dated 15 January 2016 of JDTPs and issued directions for the preparation of a

fresh  seniority  list  by  deciding  the  date  of  regular  promotion  of  the  first

respondent, whereupon a fresh promotion order was directed to be issued to the

post of DTP.   

12 The  first  respondent  instituted  proceedings12 under  Article  226  of  the

Constitution before the High Court to challenge the decisions of the Tribunal. The

State government challenged the decision of the Tribunal13. By its judgment dated

16 November 2017, the High Court allowed the writ petitions and set aside the

decision of the Tribunal. The appellant moved this Court in proceedings under

Article 136 of the Constitution to assail the decision of the High Court.  

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

13 Writ Petition No. 9291 of 2016

8

13 On 12 December 2017, when the Special Leave Petition was heard, this

Court passed the following order:  

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

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

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

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

However, it  will  be open to the parties on both the sides to take all  available contentions before the High Court on the point of catch up.”

In terms of the liberty granted by this Court, the appellant moved the High Court

in review. The review petitions, as stated earlier, were dismissed on 21 March

2018. Aggrieved by the judgment of the High Court in review and the original

judgment in the writ petitions, the appellant moved this Court afresh under Article

136 of the Constitution14.  

14 During the pendency of  these proceedings,  the appellant  has instituted

Miscellaneous  Applications15 along  with  an  interlocutory  application16.  By  the

Miscellaneous Applications, the appellant has sought a clarification of the order

dated 12 December 2017 so as to seek specific permission from this Court to

move afresh if the review were to fail before the High Court. On 28 November

2018, notice was issued on the Miscellaneous Applications.

14  SLP (C) Nos. 8769-71 of 2018 was filed against the judgment in review; SLP (C) Nos. 14041-43 of 2018 were filed against the judgment in the writ petitions.    

15  MA Nos. 2983-85 of 2018                            16  IA No. 167323 of 2018

9

15 A preliminary objection has been taken to the maintainability of the Special

Leave Petition by Mr R P Bhatt, learned Senior Counsel appearing on behalf of

the first respondent. Mr Bhatt urged that as a result of the order of this Court

dated 12 December 2017, all issues other than the application of the catch-up

rule were given up when liberty was granted to the appellant to move the High

Court by way of review. Once the review was rejected by the High Court, the

following consequences must according to the submission ensue:

(i) A challenge to the original  order  of  the High Court  allowing the writ

petitions  is  barred,  in  the  absence  of  liberty  being  granted  to  the

appellant to move afresh after the review was dismissed against the

original order assailed in the Special Leave Petition;

(ii) A challenge under Article 136 of the Constitution solely against an order

on a review petition is not maintainable.  

In support of  the submission, certain decisions of this Court  have been relied

upon which would be adverted to hereafter.  

16 The first task of this Court is to construe the order dated 12 December

2017. As the order indicates, the grievance of the appellant was that though the

issue of the catch-up rule was raised before the High Court,  it  had not  been

considered.  A two judge Bench of this Court  consisting of  Hon’ble Mr Justice

Kurian Joseph and Hon’ble Mr Justice Amitava Roy, which heard the Special

Leave Petitions, observed in response to the submission that “if that be so, it is

for the petitioner to pursue his remedies available to him under law on that issue”.

This  Court  permitted  the  Special  Leave  Petitions  to  be  withdrawn  “without

10

prejudice to such liberty”. Leaving it open to the contesting parities to take up all

available contentions before the High Court on the issue of catch-up, the Bench

observed that  :

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

17 What emerges from the order dated 12 December 2017 is that:

(i) Liberty was granted to the appellant specifically to pursue the remedies

available in  law on the grievance that the issue of catch-up, though

raised, had not been considered by the High Court; and

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

The reservation of liberty to the appellant to adopt a suitable remedy in law, to

pursue the grievance that a submission which was urged before the High Court

had not been considered would evidently be a reference to the remedy by way of

a review.

18 It is well settled that if a submission which has been urged before the High

Court  has  not  been  noticed  or  considered,  it  is  to  the  High  Court  that  the

aggrieved litigant must turn for the rectification of the record. But, apart from this,

the observation in the order dated 12 December 2017 that this Court had not

considered the matter on merits is of crucial significance. The purpose of that

clarification was to ensure that 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 the first instance and thereafter, if the appellant were to be aggrieved, in further

11

proceedings  before  this  Court.  The  above  observation  of  this  Court  was  not

merely intended to keep the issue of the non-consideration of the catch-up rule

open to be urged before the High Court. That this issue was kept open, is evident

from the last part of the order dated 12 December 2017 which specifically keeps

open the contentions of the parties to be urged before the High Court. In addition,

the order  of  this  Court  carefully  enunciates that  “we have not considered the

matter on merits”.  

19 In view of this clear clarification, it is impossible to accept the preliminary

objection that a recourse to this Court is barred after the High Court decided the

review petitions. To take any other view would effectively deny access to justice

to the appellant. Evidently, the grievance of the appellant was not considered by

this Court on merits on 12 December 2017. To adopt a construction which would

deprive the appellant of the remedy of moving this Court after the decision of the

High  Court  in  review  would  lead  to  an  egregious  failure  of  justice.  Such  a

construction must be eschewed.  

20   We would like to note an important aspect of the matter here which reflects

on  the  bona  fides  of  the  appellant.  The  appellant  moved  a  Miscellaneous

Application on 22 November 2018 by way of abundant caution, for seeking a

clarification  of  the  order  dated  12  December  2017.  The  appellant  sought  a

clarification to the effect that upon the disposal of the review petitions by the High

Court, it would be open to challenge the order in review as well as the original

order before this Court.  

12

21 One  of  the  members  of  the  earlier  Bench,  Hon’ble  Mr  Justice  Kurian

Joseph,  was  due  to  demit  office  on  29  November  2018.  The  Miscellaneous

Application  was  instituted  on  22  November  2018.  On  28  November  2018,  a

Bench consisting of Hon’ble Mr Justice Kurian Joseph and one of us (Hon’ble Mr

Justice Hemant Gupta) issued notice on the Miscellaneous Application.  

22 We  accordingly  clarify  the  earlier  order  dated  12  December  2017  by

directing that it would be open to the appellant, if aggrieved by the order that may

be passed by the High Court in review to challenge both 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 this clarification, we have also been guided by an

earlier  precedent  of  a  two  judge  Bench  of  this  Court  in  the  Maharashtra

Chamber of Housing Industry v Municipal Corporation of Greater Mumbai17.

A Bench of this Court consisting of Hon’ble Mr Justice S A Bobde and Hon’ble Mr

Justice Ashok Bhushan passed an order on 16 August 201618 in the following

terms:  

“In the circumstances, we permit the petitioner to approach the High Court with a review petition along with appropriate application for impleadment. The High Court shall decide the issues  raised  by  the  petitioner  afresh,  as  expeditiously  as possible.”

The Special Leave Petitions were accordingly disposed of.  

17 SLP (C)…2016.CC No. 14855 of 2016, dated 16 August 2016. 18 SLP (CC) NO 14855 of 2016

13

23 Subsequently, on 5 December 2017, while considering an application for

modification/recall of the earlier order, a two judge Bench consisting of Hon’ble

Mr Justice S A Bobde and Hon’ble Mr Justice L Nageswara Rao observed thus:  

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

We order accordingly.  

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

Learned Senior Counsel appearing on behalf of the first respondent relied on a

judgment of this Court in Suseel Finance & Leasing Co. v M Lata19 where it was

held thus:

“1. These special leave petitions are against an order dated 12-12-2003 passed in review petitions. It must be mentioned that against the main judgment, special leave petitions had earlier  been  filed.  However,  when  those  special  leave petitions  reached  hearing  on  1-9-2003,  the  following  order came to be passed:

“After arguing for some time, the learned counsel for the petitioners  seeks  permission  to  withdraw  the  special  leave petitions  to  seek  review  of  the  order  of  the  National Commission. Permission is granted. Accordingly, the special leave petitions are dismissed as withdrawn.” It is clear from the order that the matter was argued for some time.  It  is  clear  that  the Court  was against  the petitioners. Thus, as has become common nowadays, counsel applied for withdrawal on the ground that a review will be applied for.

2. Thereafter  the  review  applications  were  filed  before  the High Court which have now been dismissed. By these special leave petitions the order dismissing the review petitions has been challenged.

19 (2004) 13 SCC 675

14

3. In  the  case  of Shanker  Motiram  Nale v. Shiolalsing Gannusing Rajput [(1994) 2 SCC 753] it has been held by this Court that against an order rejecting an application for review, a special leave petition is not maintainable. This authority is directly on the point in issue.”

24 In the above case, it is evident that the petitioners had sought permission

to withdraw the Special Leave Petition, after arguing the matter for some time, to

seek a review of the order which was impugned. Granting permission, the Special

Leave Petition was dismissed as withdrawn. It is clear therefore that there was

nothing to  indicate  that  the court  had granted permission to  move this  Court

afresh against the original order after the review was decided.  

25 In  Abhishek Malviya  v Additional Welfare Commissioner20,  a Special

Leave  Petition  was  filed  before  this  Court  against  an  order  of  the  Additional

Welfare Commissioner in a matter involving a claim for compensation arising out

of the Bhopal Gas Leak Disaster. One of the grounds of challenge was that the

Additional Welfare Commissioner had referred to the appellant as deceased. This

Court  dismissed  the  Special  Leave  Petition  as  withdrawn,  recording  the

submission  of  the  appellant  that  he  wishes  to  move  the  Additional  Welfare

Commissioner  for  correction  of  the  order.  After  the  Additional  Welfare

Commissioner passed a fresh order, writ proceedings were initiated before the

High Court. The High Court held that by the earlier order of this Court, liberty was

reserved  only  to  move  the  Additional  Welfare  Commissioner  to  correct  a

typographical error in appeal. This Court affirmed the order of the High Court,

20 (2008) 3 SCC 108

15

holding that its earlier order had merely reserved liberty to move the Additional

Welfare Commissioner for correction of a typographical error.  

26 In  Vinod Kapoor  v  State of Goa21, a Special Leave Petition before this

Court  was  dismissed  as  withdrawn,  recording  that  the  petitioner  had  filed  a

review petition in  the High Court.  No liberty  was taken to file  a fresh Special

Leave Petition against the original order of the High Court. In that context, this

Court held thus:

“As the appellant has withdrawn the special leave to appeal against the 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 High Court with permission to pursue his remedy by way of review instead and had not taken the liberty from this Court to challenge the order dated 29-1-2000 afresh by way of  special  leave in case he did not  get  relief  in the review application, he is precluded from challenging the order dated 29-1-2000 of the High Court by way of special leave to appeal under Article 136 of the Constitution.”

The same view was reiterated by another Bench of two judges of this Court in

Sandhya  Educational  Society  v Union  of  India22 (“Sandhya  Education

Society”),  where  this  Court  had  permitted  the  withdrawal  of  a  Special  Leave

Petition with liberty to institute a review petition before the High Court. No liberty

was granted to file a fresh Special Leave Petition thereafter. This Court held that

once  a  Special  Leave  Petition  is  dismissed  as  withdrawn  without  obtaining

appropriate permission to file a fresh Special Leave Petition after exhausting the

remedy of a review petition before the High Court, it would not be maintainable.

The Court held thus:

21 (2012) 12 SCC 378 22 (2014) 7 SCC 701

16

“16. This  Court  in Vinod  Kapoor v. State  of  Goa [(2012)  12 SCC 378 : AIR 2012 SC 3722], has categorically observed that once the special leave petition is dismissed as withdrawn without  obtaining  appropriate  permission  to  file  a  special leave petition once over again after exhausting the remedy of review  petition  before  the  High  Court,  the  same  is  not maintainable.

17. The issue raised in this appeal is identical with the issue raised and considered by this Court in Vinod Kapoorv. State of Goa [(2012) 12 SCC 378 : AIR 2012 SC 3722] . Therefore, while accepting the contentions of the learned counsel for the respondent, we hold that the petition filed by the appellant is not maintainable.”   

The view in  Sandhya  Educational  Society  (supra) was reiterated  in  Bussa

Overseas and Properties Private Limited v Union of India23, where this Court

held thus:  

“30. The  decisions  pertaining  to  maintainability  of  special leave petition or  for  that  matter  appeal  have to  be seemly understood.  Though  in  the  decision  in Shanker  Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil  Procedure that bars an appeal against the order of the court rejecting the review, it is not to be  understood  that  the  Court  has  curtailed  the  plenary jurisdiction  under  Article  136  of  the  Constitution  by  taking recourse to the provisions in the Code of Civil Procedure. It has  to  be  understood  that  the  Court  has  evolved  and formulated  a  principle  that  if  the  basic  judgment  is  not assailed  and  the  challenge  is  only  to  the  order  passed  in review,  this  Court  is  obliged  not  to  entertain  such  special leave petition. The said principle has gained the authoritative status and has been treated as a precedential  principle for more than two decades and we are disposed to think that there is hardly any necessity  not  to be guided by the said precedent.”  

27 In the present  case,  we find,  for  the reasons which we have indicated

above, a clear distinction on facts. While disposing of the earlier Special Leave

23 (2016) 4 SCC 696

17

Petition to enable the appellant to pursue his remedies on the contention that the

issue of catch-up though raised was not considered by the High Court, this Court

expressly clarified that it had not considered the matter on merits. In the absence

of such a clarification, the withdrawal of the Special Leave Petition would have

led to the inference that the appellant had not been granted liberty to move this

Court afresh. On the other hand, the clear purpose and intent of the observation

that this Court had not considered the matter on merits was to keep open all the

remedies  of  the  appellant  before  the  High  Court  in  the  first  instance  and

thereafter before this Court on the issue of the catch-up rule.  

28 By the clarification that we have issued on the Miscellaneous Applications,

we have set the matter at rest. For the above reasons, we do not find any merit in

the preliminary objection.  

29 Mr  P  S  Patwalia,  learned  Senior  Counsel  appearing  on  behalf  of  the

appellant urged the following submissions:

(i) The appellant was senior to the first respondent in the feeder cadre of

DDTP;

(ii) Even assuming that the promotion of the first respondent as JDTP was

on a regular basis, the appellant would “catch-up” on his promotion and

regain his seniority over the first respondent in the promotional post;

(iii) The circular of the Government of Maharashtra dated 20 March 2003

cannot be construed as granting consequential seniority to a reserved

candidate  on the promotion to  a higher post,  in  the absence of  the

18

collection of quantifiable date, as required by 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 level of class-I posts, in this case

DDTP;

(iv) Reservation within the Class-I posts was brought about for the first time

by Reservation Act 2004;

(v) Sections 5 and 6 of the Reservation Act 2004 specifically save certain

existing circulars and it occupies the field. No other circular, 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  promotion  was

granted  to  the  first  respondent  on  2  August  2011  against  a  post

reserved for a Scheduled Tribe candidate, was quashed by the Bombay

High Court24 on the ground that it was  ultra vires  the Reservation Act

2004. Since the promotion of the first respondent was on the basis of

the circular which was quashed, his appointment contrary to the rules

would not entitle him to seniority; and

(vii) The  circular  dated  20  March  2003  provides  for  the  grant  of

consequential seniority where a reserved candidate has been promoted

on a regular basis. The promotion of the first respondent being ad-hoc,

would not entitle him to consequential seniority.

24 2013 (5) Maharashtra Law Journal 640

19

30 On the other hand, Mr V Giri, learned Senior Counsel appearing on behalf

of the first respondent urged the following submissions:

(i) The scope of adjudication before this Court must be restricted only to

the applicability of the principle of catch-up;

(ii) The promotion of the first respondent dated 11 August 2011 to the post

of  JDTP was  not  challenged by the appellant  in  the OA before  the

Tribunal and cannot be permitted to be challenged, directly or indirectly,

in these proceedings;

(iii) The necessary concomitant for the application of the principle of catch-

up is that the promotion of the first respondent dated 11 August 2011

must be taken to be valid and regular; and

(iv) Consequently, the submission of the appellant that the promotion of the

first respondent as JDTP was ad-hoc, fortuitous or irregular cannot be

agitated before this Court.  

31 On  the  applicability  of  the  principle  of  catch-up,  Mr  V  Giri  urged  the

following submissions:

(i) Rule 4 of the Maharashtra Civil Services (Regulation of Seniority) Rules

198225, stipulates that the seniority of a government servant in a post is

ordinarily determined by the length of their continuous service;

(ii) Section  5(1)  of  the  Reservation  Act  2004  stipulates  that  reservation

shall  be  at  all  stages  of  promotion,  thereby  giving  effect  to  the

constitutional right under Article 16 (4A);

25 Seniority Rules 1982

20

(iii) Section 5(2) saves all government orders which provide for reservation

of posts by promotion;

(iv) In the judgment of  this  Court  in  Indra Sawhney  v Union of India26

(“Indra  Sawhney”),  it  was  held  that  the  principle  of  consequential

seniority can be enunciated in a rule or executive order. Consequently,

the  State  government  was  competent  to  provide  for  consequential

seniority in its GR dated 20 March 2003;

(v) By a GR dated 20 October 1997, it  was stipulated that a Backward

Class officer will retain seniority in a promotional cadre by the date of

regular appointment, according to the seniority rules; and

(vi) The  GR dated 20  March  2003 was  issued after  the  amendment  of

Article  16  (4A)  by  the  85th  Amendment,  expressly  recognizing  that

seniority among Backward Classes/non-Backward Class candidates in

government service in the promoted cadre shall be fixed on the basis of

the regular dates of their promotion.  

32 On the above grounds, it was urged that the principle of catch-up would

not be applicable. Finally, it was urged that even presuming that the seniority of

the appellant is protected in the cadre of JDTP, he did not have the requisite

eligibility  to  be considered for  promotion to  the post  of  DTP for  the following

reasons:

(i) Rule 3 of the Directorate of Town Planning and Valuation  (Recruitment)

Rules 2011 prescribes that an officer holding the post of JDTP must

26 1992 Supp. (3) SCC 217  

21

serve in the post for a minimum of three years to be considered eligible

for promotion to the post of DTP;

(ii) Upon  the  superannuation  of  the  incumbent  in  the  post  of  DTP,  a

vacancy arose in the post on 30 April 2016;

(iii) On  the  date  on  which  a  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 senior most eligible officer

was entitled to and eligible for the post; and

(iv) Seniority  and  eligibility  are  distinct  concepts  and  if  a  senior  is  not

otherwise  eligible  for  consideration  under  the  rules  of  promotion,

seniority will have to give way to an eligible junior. The catch-up rule, it

was submitted, will not provide actual service to the appellant to fulfill

the eligibility  requirement for the post of DTP. On 30 April  2016, the

appellant did not complete three years of actual service in the post of

JDTP for being eligible for the post of DTP.

33 The rival submissions now fall for consideration.  

34 Clause (1) of Article 16 of the Constitution stipulates that there shall  be

equality  of  opportunity  for  all  citizens  in  matters  relating  to  employment  or

appointment to  any office  under  the State.  The expression ‘appointment’ was

interpreted by a Bench of nine Judges of this Court in Indra Sawhney (supra) to

exclude reservations in promotional  posts.   The expression ‘appointment’ was

construed to refer to initial appointments and hence not to promotional avenues.

After this decision, the Parliament in its constituent capacity amended Article 16

22

by the Constitution (Seventy-seventh) Amendment Act 1995 with effect from 17

June 1995.   Clause (4A)  of  Article  16 as introduced by the Seventy-Seventh

Amendment read thus:

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

By virtue of  Clause (4A),  an enabling provision was introduced as a result  of

which  nothing  contained  in  the  Article  would  prevent  the  State  from making

reservations in promotion in the services under the State for Scheduled Castes

and Tribes which, in its opinion, are not adequately represented in its service.

35 A line of cases before this Court considered the effect of an accelerated

promotion granted to a member of  a Scheduled Caste or  Scheduled Tribe in

terms of consequential  seniority in a higher post.  More specifically,  the vexed

issue was whether a member of such a caste and tribe who obtains promotion

earlier  than a senior  belonging to the general  or open category in the feeder

cadre would retain that seniority on the latter being promoted to a higher post.  

36 In Union of India v Virpal Singh Chauhan27 (“Virpal Singh Chauhan”), a

two judge Bench of this Court held that the State could provide that a candidate

who had been promoted earlier on the basis of reservation and on the application

of the roster would not be entitled to seniority over a senior belonging to the

general  category  in  the  feeder  category.   A senior  belonging  to  the  general

27 (1995) 6 SCC 684

23

category who is promoted to a higher post subsequently would regain seniority

over the reserved candidate.  

37 The decision  in  Virpal  Singh Chauhan  (supra)  led  to  the Constitution

(Eighty-fifth Amendment) Act 2001 with effect from 17 June 1995. Clause (4A), as

amended, expanded the ambit of the earlier provision 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 making any provision for reservation  in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of  the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”  

38 The  principle  which  has  been  enunciated  in  Virpal  Singh  Chauhan

(supra) has come to be known as the ‘catch-up’ rule. In  Ajit  Singh Januja v

State of Punjab28 (“Ajit Singh I”), a three judge Bench of this Court adopted the

catch-up rule propounded in Virpal Singh Chauhan (supra). This Court held that

a balance has to be maintained so as to avoid reverse discrimination and a rule

or circular which gives seniority to a candidate belonging to the reserved category

promoted on the basis of the roster point would violate Articles 14 and 16 of the

Constitution.   

28 (1996) 2 SCC 715

24

39 A contrary view was taken by another three Judge Bench in Jagdish Lal v

State of Haryana29 (“Jagdish Lal”) to the effect that by virtue of the principle of

continuous officiation,  a candidate  belonging to  the reserved category who is

promoted earlier than a general candidate due to an accelerated promotion would

not lose seniority in the higher cadre.  This conflict of decisions was resolved by a

Constitution Bench in  Ajit Singh (II) v  State of Punjab30 (“Ajit Singh II”).  The

Constitution  Bench  upheld  the  principle  laid  down  in Virpal  Singh Chauhan

(supra) and Ajit Singh I (supra) and disapproved of the decision in Jagdish Lal

(supra). This Court held thus:

“77. We,  therefore,  hold  that  the  roster-point  promotees (reserved  category)  cannot  count  their  seniority  in  the promoted  category  from  the  date  of  their  continuous officiation  in  the  promoted  post,  —  vis-à-vis  the  general candidates who were senior  to them in the lower category and who were later promoted. On the other hand, the senior general  candidate  at  the  lower  level,  if  he  reaches  the promotional level later but before the further promotion of the reserved candidate — he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier  promoted to  that  level.  We shall  explain  this  further  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] have been correctly decided and that Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] is not correctly decided. Points 1 and 2 are decided accordingly.”

40 The constitutional  validity  of  clauses (4A)  and (4B)  of  Article  16 of  the

Constitution was dealt with in a decision of a Constitution Bench of this Court in

Nagaraj  (supra). Nagaraj  (supra)  laid  down  that  the  catch-up  rule  and  the

concept  of  the  consequential  seniority  are  essentially  precepts  of  service

29 (1997) 6 SCC 538 30 (1999) 7 SCC 209

25

jurisprudence.  They cannot, in the view of the Constitution Bench, be elevated to

the status of a component of the basic structure.  These precepts have been held

to be practices as distinct from constitutional principles. The consequence is that

they do not lie beyond the amending power of Parliament: neither the catch-up

rule nor consequential seniority are elements of clauses (1) or (4) of Article 16.

These  have  been  held  to  be  the  principles  evolved  to  control  the  extent  of

reservation.  

41 The validity of clause (4A) and (4B) of Article 16 has been upheld by the

Constitution Bench in  Nagaraj on the rationale that “they retain the controlling

factors  or  the  compelling  reasons,  namely,  backwardness  and  inadequacy  of

representation which enables the States to provide for  reservation keeping in

mind  the  overall  efficiency  of  the  State  administration  under  Article  335”31.

Nagaraj (supra) held that the State 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 the

enabling provisions, it  must collect quantifiable data showing backwardness of

the  class  as  well  as  inadequacy  of  representation  of  that  class  in  public

employment  in  addition to complying with  the norm of  efficiency embodied in

Article 335.  The Court held thus:  

“123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will  have to show in each case the existence of

31 Nagaraj at page 278

26

the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making  provision  for  reservation.  As  stated  above,  the impugned provision is an enabling provision. The State is not bound  to  make  reservation  for  SCs/STs  in  matters  of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as  to  breach the  ceiling  limit  of  50% or obliterate  the  creamy  layer  or  extend  the  reservation indefinitely.”

42 In  the  recent  decision  of  a  Constitution  Bench  of  this  Court  in  Jarnail

Singh v  Lachhmi Narain Gupta32 (“Jarnail Singh”),  Nagaraj (supra) has been

followed save and except for the dictum requiring the State to the demonstrate

backwardness as a condition for the exercise of the enabling power in making

reservations  in  promotion  for  Scheduled  Castes  and  Tribes.  This  part  of  the

judgment in Nagaraj (supra) has been held to be inconsistent with the nine Judge

Bench decision in  Indra Sawhney  (supra). The Court in  Jarnail Singh (supra)

held thus:

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

Justice RF Nariman, speaking for the Constitution Bench held thus:

32 (2018) 10 SCC 396

27

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

43 The decision in Nagaraj (supra) has been followed in several subsequent

decisions of this Court:  (i)  Suraj Bhan Meena v  State of Rajasthan33 (“Suraj

Bhan  Meena”); (ii)  Uttar  Pradesh  Power  Corporation Limited  v  Rajesh

Kumar34 (“UP Power Corporation”);  (iii)  S Panneer Selvam  v  State of  Tamil

Nadu35 (“Paneer  Selvam”);  and  (iv)  B  K  Pavitra v  Union  of  India36 (“B  K

Pavitra”).   

44 In Suraj Bhan Meena (supra) the question which arose for consideration

before a two judge Bench of this Court was formulated thus:

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

Answering this question, this Court held thus:

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

33 (2011) 1 SCC 467 34 (2012) 7 SCC 1 35 (2015) 10 SCC 292 36 (2017) 4 SCC 620

28

The Court held that since no exercise was carried out by the State of Rajasthan

to  acquire  quantifiable  data  regarding  the  inadequacy  of  representation  of

Scheduled Castes and Tribes in public services in the state, the High Court was

justified in  quashing the notifications providing for  consequential  seniority  and

promotion.   

45 In  Panneer Selvam (supra) the issue before a two Judge Bench of this

Court was thus:

“1.1. (i)  In  the  absence  of  policy  decision  taken  by  the State/rules  framed  pursuant  to  the  enabling  provision  of Article  16(4-A)  of  the  Constitution  of  India,  whether  a reserved  category  candidate  promoted  on  the  basis  of reservation earlier than his senior general category candidate in the feeder category can claim consequential  seniority in the promotional post?”

Rule 12 of the sub-rules to the Tamil Nadu Highways and Engineering Service

provided as follows:

“12. Reservation of appointment.- The rule of reservation of appointments  (General  Rule  22)  shall  apply  to  the appointment  of  Assistant  Divisional  Engineers  by  direct recruitment  and recruitment  by  transfer  separately  and the appointment of Assistant Engineers by direct recruitment.”

Under Rule 12, reserved category Assistant and Junior Engineers had secured

promotion  as  Assistant  Divisional  Engineers  earlier  than  their  counterparts

belonging to the general category as a result of accelerated promotion following

the rule of reservation.   

29

46 Justice R Banumathi, speaking for the two Judge Bench held that Rule 12

did not provide for consequential seniority to candidates drawn from the reserved

category who are granted accelerated promotion and, in the absence of a specific

provision or policy, consequential seniority could not be granted:

“26. The true  legislative  intent  under  Article  16(4-A)  of  the Constitution is to enable the State to make provision or frame rules  giving  consequential  seniority  for  the  accelerated promotion gained based on the rule of reservation. Rule 12 evidently does not provide for the consequential seniority for reserved  category  promotees  at  any  point  of  time.  The consequential seniority for such reserved category promotees can  be  fixed  only  if  there  is  express  provision  for  such reserved  category  promotees  in  the  State  rules.  In  the absence of any specific provision or policy decision taken by the State Government for consequential seniority for reserved category  accelerated  promotees,  there  is  no  question  of automatic application of Article 16(4-A) of the Constitution.”

The Court noted that the appellants who belonged to the general category were

not questioning the accelerated promotion granted to their counterparts from the

reserved category by following the rule of reservation but were only seeking the

application  of  the  catch-up  rule  in  the  fixation  of  seniority  in  the  promotional

cadre.  The Court  held that in the absence of any provision of  consequential

seniority in the rules, the catch-up rule will prevail:

“36. In  the  absence  of  any  provision  for  consequential seniority  in the rules,  the “catch-up rule”  will  be applicable and  the  roster-point  reserved  category  promotees  cannot count their seniority in the promoted category from the date of their  promotion  and  the  senior  general  candidates  if  later reach the promotional  level,  general  candidates will  regain their  seniority.  The  Division  Bench  appears  to  have proceeded on an erroneous footing that Article 16(4-A) of the Constitution  of  India  automatically  gives  the  consequential seniority in addition to accelerated promotion to the roster- point  promotees  and  the  judgment  of  the  Division  Bench cannot be sustained.”

30

47 The decision in Panneer Selvam (supra) has since been followed by a two

judge Bench of this Court in B K Pavitra (supra).  Justice AK Goel, speaking for

the Bench held thus:

“29. It  is  clear  from  the  above  discussion  in S.  Panneer Selvam case [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 “overall efficiency”, is a must for exercise of power under Article  16(4-A).  Mere  fact  that  there  is  no  proportionate representation in promotional posts for the population of SCs and  STs  is  not  by  itself  enough  to  grant  consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account  of  reservation  policy.  It  is  for  the  State  to  place material  on record that  there was compelling necessity  for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised.  In  the  present  case,  no  such  exercise  has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency  was  adversely  affected  by  giving  consequential seniority to junior persons who got promotion on account of reservation.  Plea that  persons promoted at  the same time were allowed to  retain  their  seniority  in  the lower  cadre is untenable and ignores the fact that a senior person may be promoted later and not at the same time on account of roster point  reservation.  Depriving him of  his  seniority  affects  his further chances of promotion. Further plea that seniority was not a fundamental  right  is equally  without  any merit  in the present context. In absence of exercise under Article 16(4-A), it is the “catch-up” rule which fully applies. It is not necessary to go into the question whether the Corporation concerned had adopted the rule of consequential seniority.”

48 Rule 4 of  the Maharashtra Civil  Service (Regulation of  Seniority)  Rules

1982 lays down the general principles of seniority.  The substantive part of Rule

4(1) reads thus:

“4. General principles of seniority:-  (1) Subject to the other provisions of these rules, the seniority of a Government servant in any post, cadre or service shall

31

ordinarily  be  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 a result of fortuitous appointment (except in a case whether the competent authority certifies that, it was not expedient / possible or practicable to make a regular appointment strictly in accordance with the ratio of recruitment as prescribed in relevant  recruitment  rules,  with  the  brief  reasons  recorded therefor), shall be excluded in computing the length of service and for the purpose of seniority he shall be deemed to have been appointed to the post or in the cadre or service on the date on which his regular appointment is made in accordance with the provisions of the relevant recruitment rules.”

49 On 20 October 1997, a Government Resolution was issued stipulating that

an officer belonging to a Backward Class will retain seniority in the promotional

cadre and that it is not necessary to revise the seniority.  The GR adverts to the

decision of this Court in Virpal Singh Chauhan (supra) and to the orders which

were  issued  on  19  April  1997  for  regulating  the  seniority  of  employees  in

government services, following a circular dated 30 January 1997 of the Union

government.  The GR is founded on the judgment in  Jagdish Lal (supra) and

provides thus:

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

50 On 20 March 2003, another GR was issued inter alia with reference to the

earlier GR noted above. The GR states that following the amendment to Article

16 by the insertion of Clause (4A), it has been decided that the instructions for

32

regulating  seniority  of  officers  belonging  to  the  Backward  Classes  and  the

general  category  in  the  promoted  cadre  would  be  governed  by  the  earlier

Government Resolutions dated 21 June 1982 and 20 October 1997.  The GR

clarified  that  the  seniority  between  backward  class  and  non-backward  class

candidates in government service in the promotional cadre would be governed by

the regular date of promotion:

“3. Considering the said amendment made by the Union Government  to  Constitution  of  India  and  accordingly  the orders issued on 21.1.2002, the State Government has now decided that the instructions issued for regulating the seniority amongst the employees/ officers of Backward Classes / Non- Backward Classes in  Government  Service in  the promoted cadre vide the circular of 21st June 1982 and the instructions stipulated in the orders dated 20.10.1997 shall  continue to remain  in  force.  Hence,  seniority  amongst  the  Backward Classes  /  Non  Backward  Class  candidates  in  government service in the promoted cadre shall be fixed on the basis of their  respective regular date of promotion given to them as per their sequence in the select list of Backward Class and non-Backward candidates.”  

51 The submission which has been urged on behalf of the first respondent is

that:  

(i) The GR dated 20 March 2003 has been issued in pursuance of the 85th

constitutional  amendment  by  which  the  words  “with  consequential

seniority” were inserted in Clause (4A) of Article 16;  (ii) The decision of this Court in Indra Sawnhey (supra) contemplates that a

reservation in  favour of  the backward classes can also be provided by

means of an executive order;  (iii) Section  5(1)  of  the  Reservation  Act  2004  stipulates  that  reservation  in

promotion shall be at all stages of promotion and in doing so, gives effect

to Article 16(4A); and  

33

(iv) Section  5(2)  of  the  Reservation  Act  2004  saves  all  government  orders

which provide for reservation for any posts to be filled by way of promotion.

Consequently  it  is  urged  that  all  prior  government  orders  have  been

explicitly saved after the enactment of the Reservation Act 2004.

52 The  GR  dated  20  March  2003  was  issued  after  the  constitutional

amendment to Article 16 (4A) by which consequential seniority was incorporated

into that provision. The decision of this Court in Indra Sawhney (supra) indeed

contemplated  that  a  provision  for  reservation  can  be  made  by  a  legislative

enactment  or  rules  and also by  an executive  order.  The judgment  of  Justice

Jeevan Reddy formulated the 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 an executive  order  making  such  a  provision  is  enforceable without incorporating it into a 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. Such a provision can be made by the Executive  also.  Local  bodies,  Statutory  Corporations  and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (Paras 735-737)

(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. (Paras 738- 740)”

34

[See also in this context Gaurav Pradhan v State of Rajasthan37.]

53 The Reservation Act 2004 was enacted by the State legislature in 2001.

The  assent  of  the  Governor  was  received  on  20  January  2004  and  it  was

published in the Official Gazette on 22 January 2004.  The enactment has come

into force after the 85th constitutional amendment. Prior to the enforcement of the

Act, reservations were confined upto the entry level in Group I posts, this being

common ground during the course of the hearing. As a result of the enactment of

the law, reservations are applicable to all  appointments in public services and

posts  [except  categories  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 4 deals with

reservation and percentages:

“Section 3 -  Applicability

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

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

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

(c) the temporary appointments of  less than forty-five days duration; 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 posts reserved for  the Scheduled Castes,  Scheduled Tribes,  De- notified  Tribes  (Vimukta  Jatis),  Nomadic  Tribes,  Special Backward Category and Other Backward Classes shall not be

37 (2018) 11 SCC 352

35

filled in by the candidates not belonging to that, caste, tribe, category or class for which the posts are reserved.

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

Description of Caste/Tribe/Category/Class Percentage of vacancies or seats to be reserved

(1) Scheduled Castes 13 per cent (2) Scheduled Tribes 7 per cent (3) De-notified Tribes (A) 3 per cent   (4) Nomadic Tribes (B) 2.5 per cent  

(5) Nomadic Tribes (C) 3.5 per cent  (6) Nomadic Tribes (D) 2 per cent (7) Special Backward Category 2 per cent  (8) Other Backward Classes 19 per cent  Total 52 per cent

           ”

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

“(3) The reservation specified for the categories mentioned at serial numbers (3) to (6) (both inclusive) in the table under sub-section  (2)  shall  be  inter  transferable.  If  suitable candidates  for  the  posts  reserved  for  any  of  the  said categories are not available in the same recruitment year, the posts  shall  be filled by appointing suitable 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 Government orders providing for reservation for any posts to be filled by promotion, are in force, the same shall continue to be in force unless modified or revoked, by Government.

36

Section 6 - Carrying forward of reserved vacancies

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

Provided that,  on the date of commencement of this Act, if any Government orders regarding filling up the posts, in case of non availability of Backward Class candidates are in force, such Government orders shall continue to be in force unless modified or revoked, by Government.”

Section 11 provides thus:

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

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

56 Sub-section (1) of Section 5 stipulates that reservation in promotion shall

be at all stages of promotions. Consequently, promotions within Class I posts are

also governed by the rule of reservation.  

57 According to the appellant, the Reservation Act 2004 clearly provides in

sub-section (2) of Section 5 and the proviso to sub-section (1) of Section 6, which

category  of  government  orders  predating  the  Act  stand  saved.  Mr  Patwalia

submits that the long title to the Reservation Act 2004 indicates that the law was

enacted  to  provide  for  reservation  and  “for  matters  connected  therewith  or

incidental thereto”. The submission is that while making a law for the purpose of

reservation,  the  state  government  did  not  incorporate  a  provision  for

consequential seniority.  Moreover, the proviso to Section 6 saves government

37

orders dealing with the filling up of unfilled posts reserved for backward class

candidates. Hence,  it  was urged that  the GR dated 20 March 2003 does not

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 11 stipulates that any

appointment made in contravention of the provisions of the Act shall be void.   

58 On the other  hand,  Mr Giri  has met this  submission by urging that  the

Reservation Act 2004 does not deal with the issue of consequential  seniority.

Hence the GR dated 20 March 2003 will continue to apply.  It was urged that

though the GR dated 20 March 2003 is an executive order,  this is a valid or

competent mode of giving effect  to the principle of  consequential  seniority as

recognized by the decision of this Court in Indra Sawhney (supra).  

59 We have already noticed the decision in Indra Sawhney (supra) as having

laid down that a provision for reservation can be incorporated in an executive

order.  We are not inclined to accede to the submission of the appellant that the

GR dated 20 March 2003 will cease to remain in force after the enactment of the

Reservation  Act  2004.  The  Reservation  Act  has  not  dealt  with  issue  of

consequential seniority. Sub-section (2) of Section 5 saves government orders

providing for reservation of any posts to be filled in promotion which were in force

on the date of the enactment of the Act.  Similarly, the proviso to sub-section (1)

of Section 6 saves government orders regarding the filling up of unfilled posts

reserved  for  Backward  Class  candidates  in  force  on  the  date  of  the

commencement  of  the  Act.   The  GR  dated  20  March  2003  deals  with  the

determination of  seniority while sub-section (2) of Section 5 deals with orders

38

providing for reservation. The GR dated 20 March 2003 is undoubtedly not a

government  order  which  falls  within  the  purview  of  either  sub-section  (2)  of

Section 5 or the proviso to sub-section (1) of Section 6. However, the enactment

of the Act by the state legislature cannot be construed as a legislative intent to

override  or  abrogate  the  principle  of  consequential  seniority  incorporated  in

government resolutions. A provision for consequential seniority can certainly be

incorporated in an executive order issued in pursuance of the provisions of Article

162 of the Constitution.38   

60 The Government Resolution dated 20 March 2003 has not been abrogated

upon the enactment of  the Reservation Act 2004.  The Reservation Act 2004

does  not  deal  with  the  principle  of  consequential  seniority.  It  would  be

impermissible to read the Act as having superseded the applicable government

orders on consequential  seniority,  in the absence of clear words providing for

such an effect.  

61 A further submission which was urged on behalf of the appellant is that

until the Reservation Act 2004 was enacted, reservations in promotions were not

available within Class I  posts. Mr Patwalia urged that when the GR dated 20

March 2003 was issued, there was no reservation within Class 1 posts and that in

consequence, consequential seniority needs to be restricted in its application to

posts other than Class 1 posts.  

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

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

39

62 This again, is an attempt to urge the Court to read the GR dated 20 March

2003 in a restrictive manner on the basis of the Reservation Act 2004.  The GR

dated 20 March 2003, while incorporating the principle of consequential seniority,

reiterates the GR dated 20 October 1997. It also adverts to the Seniority Rules

1982 of which Rule 4 specifically stipulates that the length of continuous service

will be determinative of seniority in respect of posts and cadres in the service.

Accepting the submission of the appellant would lead to an anomalous situation

where consequential seniority will  be made applicable to posts below Class 1,

and the catch-up rule will apply to Class 1 posts.  An interpretation which results

in this anomaly must be eschewed, particularly in the absence of a challenge to

the GR dated 20 March 2003 and the Seniority Rules of 1982.  

63 The appellant has, in the course of the submissions of Mr Patwalia, sought

to urge that the GR dated 20 March 2003 is contrary to the ratio of the decision of

the Constitution Bench of this Court in Nagaraj (supra). It was urged that before a

provision for consequential  seniority can be incorporated, the state is under a

mandate  to  collect  quantifiable  data  with  reference  to  (i)  inadequacy  of

representation; and (ii) the effect on the efficiency of administration. Mr Patwalia

urged that in the absence of quantifiable data, the GR dated 20 March 2003 is

ultra vires. In this context, it was urged that in the absence of an exercise by the

state to collect quantifiable data, the principle enunciated by this Court in Nagaraj

(supra) and as applied by the subsequent decisions of this Court in Suraj Bhan

Meena (supra), UP Power Corporation (supra), Panneer Selvam (supra) and B

K Pavitra (supra) would be attracted.

40

64 A challenge to the GR dated 20 March 2003 is conspicuous by its absence

in the reliefs which were sought before the Maharashtra Administrative Tribunal.

We have adverted to the reliefs claimed in an earlier part of this judgment and

they are indicative only of a challenge to seniority. Entertaining a challenge to the

validity of a Government Resolution incorporating the principle of consequential

seniority without a specific challenge being addressed before the Tribunal would

simply be impermissible. Entertaining such a challenge at this stage will  have

serious  consequences  in  the  entire  State  of  Maharashtra  by  upsetting  a

significant  number  of  promotions  which  may  have  already  been  granted  to

candidates belonging to the reserved category.  The State government,  in  the

pleadings before the Tribunal and the High Court was not called upon to justify

the basis  of  its decision to adopt  consequential  seniority  in the absence of a

challenge being squarely set up in the forum of first instance.  

65 A challenge to the resolution providing for consequential seniority is indeed

a serious matter. Such a challenge calls upon the court to upset a policy circular

which has been issued with the avowed objective of safeguarding consequential

seniority  which  was,  as  our  constitutional  history  indicates,  a  clear  purpose

underlying  the  85th  Amendment  to  the  Constitution.  Such  constitutional

challenges cannot be bandied about without specific pleadings. We are clearly of

the view that such an exercise would be impermissible in the absence of a frontal

challenge.

66 In Suraj Bhan Meena (supra), the petitioners had challenged a notification

dated 25 April 2008 issued by the State of Rajasthan under the proviso to Article

309 of the Constitution, amending the Rajasthan “Various Service Rules” with

41

effect from 28 December 2012.   This  was challenged on the ground that  the

deletion amounted to giving consequential seniority to candidates belonging to

the Scheduled Castes and Tribes without carrying out the exercise of collecting

quantifiable data.   

67 In UP Power Corporation (supra), there was a specific challenge before

the High Court of Judicature at Allahabad to the validity of Rule 8-A of the UP

Government  Servants  Seniority  Rules  2007.  Section  3  of  the  Uttar  Pradesh

Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other

Backward Classes) Act 1994 and Rule 8-A of the 1991 Rules brought into force in

2007  were  challenged  as  being  ultra  vires and  unconstitutional.  As  a

consequence,  the  consequential  orders  relating  to  seniority  were  impugned.

Once  again,  the  challenge  was  on  the  ground  that  the  exercise  which  was

required 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 to Tamil Nadu

Highways  Engineering  Service  provided  that  the  rule  of  reservation  of

appointments  (General  Rule  22)  shall  apply  to  the  appointment  of  Assistant

Divisional Engineers by direct recruitment and by transfer of the appointment of

Assistant  Engineers.  This  Court  held  that  Rule  12  did  not  provide  for

consequential  seniority  and,  in  the  absence  of  a  provision  for  consequential

seniority  catch-up  rule  will  be  applicable.  The  litigation  in  Panneer  Selvam

(supra) did not engage a situation such as the present where the GR dated 20

March 2003 specifically provides for consequential seniority.   

42

69 The decision in  BK Pavitra (supra) involved a specific challenge to the

validity of the Karnataka Determination of Seniority of the Government Servants

promoted on the basis of Reservation (to the posts in the Civil Services of the

State) Act 2002. The Act was struck down by a two judge Bench of this Court on

the  ground  that  the  State  had  not  undertaken  an  exercise  to  establish  a

“compelling necessity” since no material had been placed by the State on record.  

70 All these decisions (except the decision in  Panneer Selvam) involved a

specific challenge to the validity of administrative notifications or, as the case may

be, an Act of the legislature.  Panneer Selvam (supra) was a case where in the

absence of a provision for consequential seniority, it was held that the catch-up

rule will prevail. In the present case, there is a specific provision for consequential

seniority in the GR dated 20 March 2003. Absent a challenge to the GR in the

proceedings which were initiated before the Tribunal, such a challenge cannot be

entertained at this stage.  

71 On behalf of the appellant, it has been urged that the promotion which was

granted to the first respondent on 11 August 2011 as JDTP is purely ad-hoc and

has not been regularized.  This submission has been buttressed by relying upon

three documents:  

(i)  The  promotion  order  dated  11  August  2011  which  states  that  an  ad-hoc

promotion has been granted to the first  respondent  on the post  of  JDTP,

subject  to the outcome of the decision of  the Bombay High Court  in Writ

Petition 8452 of 2004;  

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

43

“Shri N R Shende (Scheduled Caste) was promoted as Joint Director of Town Planning on 11/08/2011 after following due procedure and provisions  of  prevailing rules  for  promotion, with  the  approval  of  General  Administration  Department, Establishment  Board  as  well  as  Government.  Though  his promotion is on adhoc basis, and on regular post, it will be regularized with the approval of Maharashtra Public Service Commission.  Even  the  applicant  is  also  promoted  on upgraded post of Joint Director of Town Planning on ad-hoc basis  vide Government Resolution dated 02/07/2013 and it also  will  be  regularized  with  the  approval  of  Maharashtra Public Service Commission.”

(iii) A reply to a query addressed by the appellant under the Right to Information

Act 2005 on 8 March 2016 stating that:

“Mr  N  R Shende,  Joint  Director,  Town Planning  has  been granted adhoc promotion to the post of Joint Director of Town Planning  vide  Government  Resolution  No.  TPV- 1110/624/CR.170/2010/UD-27  dt.  11.08.2011.  Provision  is made that said promotion will be regularized with concurrence of  General  Administration  Department  and  approval  of Maharashtra Public Service Commission.”

72 Another limb of the submission is that the promotion which was granted to

the first respondent was in terms of the GAD Circular dated 27 October 2008

which contemplated the inter-changeability of reserved posts between reserved

categories.  The  circular  was  struck  down by  the  Bombay  High  Court  on  the

ground that after the enactment of the Reservation Act 2004, interchangeability of

posts was specifically prohibited. Moreover, it was submitted that a regular post

of JDTP became available to the first respondent only when the cadre strength

increased from two to eight on 29 December 2012, resulting in a simultaneous

increase in the posts for reserved categories from one to three.  The submissions

of  the  appellant  have  been  countered  by  urging  that  the  reason  why  the

44

promotion of the first respondent has been treated as ad-hoc is because there

was a challenge pending to the Reservation Act 2004 at the material time before

the Tribunal / High Court in Writ Petition 8452 of 2004.  

73 The  submission  of  the  appellant  is  based  on  the  hypothesis  that  the

promotion  of  the  first  respondent  is  ad-hoc  and  hence,  he  is  not  entitled  to

consequential seniority in terms of the GR dated 20 March 2003, which speaks of

the “regular date of promotion”. In assessing this submission, it is necessary to

note that the order of promotion dated 11 August 2011 indicates the reason as to

why the promotion was treated as ad-hoc. The reason was the pendency of Writ

Petition  8452  of  2004  before  the  Bombay  High  Court  where  there  was  a

challenge to the Reservation Act 2004. Indeed, the order of promotion dated 2

July 2013 by which the appellant was promoted to the post of JDTP also states

that the promotion is ad-hoc. Significantly, in the case of the appellant as well, the

reason why the promotion is  treated as ad-hoc is  also  the pendency of  Writ

Petition 8452 of 2004.  

74 A policy circular was issued by the State of Maharashtra on 1 April 2008 to

all departments directing that promotions will be subject to the outcome of the

decision in the above Writ Petition. Special Leave Petitions against the judgment

of the Bombay High Court in the Writ Petition39 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 was stayed 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 it

39 SLP (C) No 28306 of 2017 and others

45

struck  down  the  Reservation  Act  2004.   The  High  Court  kept  the  issue  of

constitutional validity open.  The State of Maharashtra has filed a Special Leave

Petition which is pending before this Court.  

75 Mr Giri, learned Senior Counsel appearing on behalf of the first respondent

submitted that though the word ad-hoc has been used in the order of promotion,

the  due  process  of  promotion  was  followed  before  the  first  respondent  was

promoted to the post of JDTP.  In urging this submission, Mr Giri has relied on the

communication dated 7 January 2011 of the Deputy Secretary to the Government

of Maharashtra to the Principal Secretary, Services, GAD.  He submits that (i)

only two posts were available in the cadre of JDTP, one of which is set apart for

the reserved categories; (ii) no other eligible officer was available to fill up the

said post from amongst the reserved categories and hence the first respondent

was recommended for promotion; and (iii) in any event, the appellant who is an

open category candidate cannot have  a right of appointment to a post for the

reserved categories on which the first respondent was appointed.  

76 Alternately, it has been urged on behalf of the first respondent that even

presuming that the seniority of the appellant is protected in the cadre of JDTP, the

fact remains that  he did not have the requisite eligibility  to 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 Giri has urged that even if the catch-up rule

were to prevail on the ground that the promotion of the first respondent is only ad-

hoc: (i) Rule 3 of the Directorate of Town Planning and Valuation (Recruitment)

Rules 2011 prescribes that an officer holding the post of JDTP must necessarily

46

serve in  the post  for  a  minimum of  three years  to  be considered  eligible  for

promotion to the post of DTP; (ii) upon superannuation of Mr Rajan Kop from the

post of DTP, a vacancy in the post arose on 30 April 2016; (iii) as on the date

when the 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 as

the senior-most eligible officer, was entitled to be appointed to the post. The state

has issued a GR dated 5 October 2015 under which the condition prescribing the

minimum required experience for promotion cannot be relaxed; and (iv) seniority

and eligibility are different concepts and merely because a person is senior does

not make an individual eligible for consideration.  

77 On the above foundation, it has been urged that even if the catch-up rule is

made applicable to the appellant in the post of JDTP, he was not eligible to be

considered for promotion as DTP in terms of Rule 3 which requires a minimum of

three years’ experience as JDTP.  The catch-up rule, in this submission, provides

for a notional state of affairs vis-à-vis a person who was earlier promoted under a

reserved  category.  In  other  words,  the  catch-up  rule  will  not  provide  actual

service required to fulfill the requirement of eligibility.  

78 Eligibility  has  to  be  considered  on  the  date  of  the  occurrence  of  the

vacancy. On 30 April 2016, the appellant did not fulfill the eligibility required for

the post of DTP. In assailing the decision of the first respondent, as we have

noted, the appellant has submitted that the promotion of the first respondent as

JDTP on 11 August 2011 was under a circular dated 27 October 2008 which has

been struck down by the Bombay High Court.  The High Court in dealing with this

47

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 since promotion was given to the first respondent in terms of the

Government Circular dated 27 October 2008, he believed that he had no reason

to object to the seniority list of JDTP published on 28 August 2014. That apart,

the High Court has noted that after the promotion of the first respondent on 11

August 2011, the appellant was promoted on 2 July 2013 and it was only when

the second seniority list was finalized on 15 January 2016 that the appellant filed

an OA in February 2016.  In the meantime, the appellant had worked as JDTP for

a period of nearly five years. In declining to allow the issue of seniority to be

challenged at this belated stage, the High Court relied upon the decisions of this

Court in Roshan Lal v International Airport Authority of India40, P Chitharanja

Menon v A Balakrishnan41 and Amarjeet Singh v Devi Ratan42.   

79 The  delay  has,  in  our  view, justifiably  weighed  with  the  High  Court.

Coupled with this is an equally relevant consideration which must weigh with the

court: the appellant has not challenged the appointment of the first respondent as

JDTP.  Having failed to challenge the appointment,  it  is  now not  open to the

appellant to assert that the appointment must be treated as void on the ground

that the circular on the basis of which the first respondent was promoted has

subsequently been set aside in a judgment of the Bombay High Court43.  

40 (1980) Suppl.SCC 449 41 (1977) 3 SCC 255 42 (2010) 1 SCC 417 43 Mahasangh, (2013) 5 Mh LJ 640

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80 The first  respondent  has urged that  his  appointment  as  JDTP was not

challenged  by  the  appellant  for  the  reason  that  any  challenge  would  have

attracted the bar of limitation. Whatever be the reason, the fact remains that the

appointment of the first respondent as JDTP has not been assailed in the OA filed

before  the  Tribunal.  Consequently,  it  is  not  open  to  the  appellant  to  lay  a

challenge on the ground that the appointment was based on a circular which was

held  to  be invalid  after  the  appointment  was  made.  The  submission  that  the

appointment is fortuitous within the meaning of Rule 3(f) is but another modality

of seeking to deprive the first respondent of the consequence of his appointment

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 a suitable person  on  the  basis  of  strict  selection  with  due  regard  to seniority, from amongst the persons holding the post of Joint Director of Town Planning in the Directorate, having not less than three years regular service in that post.”      

The fact that the vacancy occurred on 30 April 2016, on the retirement of the then

DTP has not been disputed in the course of the submissions 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 2013 did not fulfill  the criterion prescribed by Rule 3. The

contention urged by Mr Patwalia that the tenure served by the appellant in the

posts  of  DDTP  and  JDTP  must  be  coupled  together  for  the  purpose  of

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determining eligibility  cannot be accepted as Rule 3 clearly  stipulates that  an

eligible JDTP must have three years of regular service in that post.  

  82 In  R Prabha Devi v  Union of India44, a two Judge Bench of this Court

formulated the principle in the following terms:  

“The rule-making authority is competent to frame rules laying down  eligibility  condition  for  promotion  to  a  higher  post. When  such  an  eligibility  condition  has  been  laid  down  by service rules,  it  cannot be said that  a  direct  recruit  who is senior  to the promotees is not  required to comply with the eligibility  condition  and  he  is  entitled  to  be  considered  for promotion  to  the  higher  post  merely  on  the  basis  of  his seniority. … Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules.  A person must be eligible  for  promotion  having  regard  to  the  qualifications prescribed  for  the  post  before  he  can  be  considered  for promotion.  Seniority  will  be relevant  only  amongst  persons eligible. Seniority cannot be substituted for eligibility nor can override it in the matter of promotion to the next higher post.”

Seniority and eligibility are distinct concepts in service jurisprudence. Seniority by

itself cannot prevail where a senior lacks eligibility for promotion to a higher post

[See in  this  context  Palure Bhaskar  Rao v  P Ramaseshaiah45].  Even if  the

contention of the appellant on the applicability of the catch-up rule were to be

accepted, that will  not obviate the requirement of  his fulfilling the condition of

eligibility for promotion to the next higher post, on the date when the vacancy

occurred.

83 The appellant failed to challenge the appointment of the first respondent as

JDTP on 11 August 2011. The appellant failed to challenge the circular dated 20

44 (1988) 2 SCC 233 45 (2017) 5 SCC 783

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March  2003  providing  for  consequential  seniority.  The  substratum  of  the

challenge which has been developed before this Court  is without basis in the

pleadings. The ingenuity and industry of the learned counsel who appeared on

behalf  of  the appellant  cannot,  in  the ultimate  analysis,  be a  substitute  for  a

deficient pleading.  

84 A submission was sought to be advanced on the basis of the principle that

an appointment  made contrary to the rules is merely  fortuitous and does not

confer  the  benefit  of  seniority  on  the  appointee  over  and  above  the

regular/substantive  appointees  to  the  service  (Sanjay  K  Sinha-II v  State  of

Bihar)46.  The same principle was emphasized in  Bhupendra Nath Hazarika v

State of Assam47:  

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

[See also  PV George v  State of Kerala48 and  BA Linga Reddy v  Karnataka

State  Transport  Authority49 (relied  upon to  buttress  the submission that  the

power of the High Court to strike down cannot be exercised prospectively)].

85 The answer  to the submissions is  simple:  the appellant  did not  at  any

stage challenge the appointment of the respondent to the post of JDTP nor did

he challenge the GR dated 20 March 2003 providing for consequential seniority.

The appellant was not eligible for the post of DTP on 30 April 2016, when the 46 (2004) 10 SCC 734 at 742 47 (2013) 2 SCC 516 48 (2007) 3 SCC 557 49 (2015) 4 SCC 515

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vacancy  occurred.  He  cannot,  hence,  challenge  the  appointment  of  the  first

respondent.  

86 For the above reasons, we have come to the conclusion that there is no

substance in the appeals.  The judgment of the High Court does not call for any

interference, though for the reasons which we have indicated. The Civil Appeals

shall stand dismissed. There shall be no order as to costs.

CIVIL APPEAL Nos  2471-2473  OF 2019 @ SPECIAL LEAVE PETITION (CIVIL) Nos. 14041-14043 OF 2018

87 In view of the judgment in Civil Appeals @ Special Leave Petition(C) Nos

8769-8771 of 2018 rendered today, these appeals are also dismissed with no

order as to costs.

MA Nos 2983-2985 OF 2019 @ SPECIAL LEAVE PETITION (CIVIL) Nos.33086-33088 OF 2017

88 In view of the judgment in Civil Appeals @ Special Leave Petition (C) Nos

8769-8771 of 2018 rendered today, these MAs are disposed of, in terms of the

judgment and order in the lead appeals.  

…….………….…………………...........................J.                                  [DR DHANANJAYA Y CHANDRACHUD]

…….…………………………...............................J.             [HEMANT GUPTA]

NEW DELHI March 5, 2019

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