*1* WP DC PROMOTIONS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.9163 OF 2022

1.Smt. Samiksha D/o Ramakant Chandrakar,

Age: 51 Yrs., Occ: Service as Deputy

Commissioner (EGS),

Divisional Commissioner (Revenue)'s office.

Aurangabad, R/o Plot No. 363,

Sector - E, N-1, CIDCO,

Aurangabad 431 003.

Mobile No. 9822186477.

2.Pandurang Ramrao Kulkarni,

Age: 57 Yrs., Occ: Service as

Deputy Commissioner (Resettlement),

Divisional Commissioner (Revenue)'s

office, Aurangabad,

R/o Plot No. 20, 'Indradhanu',

Opp. Kasliwal Corner, N-2, CIDCO,

Aurangabad 431 003.

Mobile No. 9422208018.

...PETITIONERS

-VERSUS-

1.The State of Maharashtra.

Through the Additional Chief Secretary,

Revenue & Forest Department,

Mantralaya, Mumbai 400 032.

2. The Additional Chief Secretary,

General Administration Department,

Mantralaya, Mumbai 400 032.

3.The Additional Chief Secretary,

Finance Department, Mantralaya,

Mumbai 400 032. 2024:BHC-AUG:17680-DB

*2* WP DC PROMOTIONS

4.The Principal Secretary,

Law and Judiciary Department,

Mantralaya, Mumbai 400 032.

5. Shri Vijay s/o Shankarrao Deshmukh,

Age: Major, Occ: Service as

Additional Collector, Collectorate, Pune.

6. Shri Trigun S/o Shamrao Kulkarni,

Age: Major, Occ: Service as

Deputy Commissioner (Supply),

Divisional Commissioner (Revenue)'s

Office, Pune Division, Pune.

7.Smt. Rupali d/o Vilas Awale,

Age: Major, Occ: Service as

Additional Collector,

Collectorate, Osmanabad.

8.Smt. Swati d/o Laxmanrao Deshmukh,

Age: Major, Occ: Service as

Deputy Commissioner (Supply),

Divisional Commissioner (Revenue)'s

Office, Nasik Division, Nasik.

9. Shri. Arvind s/o Rameshrao Lokhande,

Age: Major, Occ: Service as

Additional Collector, Collectorate, Latur.

10.Shri. Tushar s/o Eknath Thombre,

Age: Major, Occ: Service as

Additional Collector, Collectorate, Beed.

...RESPONDENTS

WITH

WRIT PETITION NO. 9631 OF 2022

Shri. Vijaysingh Shankarrao Deshmukh

Age: 49 Year Occ: Government Servant

Additional Collector Pune,

*3* WP DC PROMOTIONS

Collector Office at Pune. ...PETITIONER

-Versus-

1. The State of Maharashtra

Through the Principal Secretary

Department of Revenue and Forest

2. The Additional Chief Secretary

General Administration Department

M. S. Mantralay, Mumbai-32

3. The Additional Chief Secretary

Finance Department Mantralay,

Mumbai-32

4. The Principal Secretary

Law and Judiciary Department,

Mantralay, Mumbai

5. Smt. Samiksha D/O Ramakant Chandrakar.

Age-50 years, Occu.: Service as

Deputy Commissioner (EGS)

Divisional Commissioner (Revenue)'s office,

Aurangabad R/o. Plot No. 363,

Sector- E,N-1, CIDCO, Aurangabad 431003.

6. Shri. Pandurang Ramrao Kulkarni.

Age-55 years, Occu,: Service as

Deputy Commissioner (Rehabilitation),

Divisional Commissioner (Revenue)'s

Office, Aurangabad.

R/o Kasliwal Corner, N-2 CIDCO

7. Shri. Trigun S/O Shamrao Kulkarni,

Age: Major, Occu: Service as

Deputy Commissioner (Supply),

Divisional Commissioner (Revenue)'s

office, Pune Division, Pune.

8. Smt. Rupali d/o Vilas Awale,

*4* WP DC PROMOTIONS

Age: Major. Occu.: Service as

Additional Collector, Collectorate,

Osmanabad.

9. Smt. Swati S/O Laxmanrao Deshmukh,

Age- Major, Occ.: Service as

Deputy Deputy Commissioner (Supply),

Divisional Commissioner (Revenue)'s

Office, Nashik Division, Nashik.

10. Shri. Tushar Eknath Thombre

Age: Adult, Occ: Service as

Additional Collector, Collectorate, Beed.

...RESPONDENTS

WITH

WRIT PETITION NO. 9632 OF 2022

Shri Tushar Eknath Thombre,

Age : 45 years, Occ : Government Servant

Additional Collector of Beed,

C/o Collector Office, Nagar Road,

Beed.

...PETITIONER

-VERSUS-

1.The State of Maharashtra

Through the Principal Secretary

Department of Revenue and Forest.

2. The Additional Chief Secretary

General Administration Department

M. S. Mantralay, Mumbai-32

3. Shivaji S/o Tukaram Shinde,

Age-54 years, Occu. Service,

(as Asstt. Commissioner [B.C. Cell]

in O/o Div. Commissioner, Aurangabad,

R/o H No. 13, Om-Akansha Housing,

*5* WP DC PROMOTIONS

Society, Plot No. 36 Parijat Nagar,

Cidco, N-4 Aurangabad.

4. Sunil Vitthalrao Yadav,

Age- 55 years, Occu. -Service,

(as Sub-Divisional Office. Latur),

R/o-"Sinhgad" Govt. Quarter,

Opp. Tahsil Office, Latur.

5. Shri. Arvind S/O Rameshrao Lokhande,

Addl. Collector, Latur,

C/o: Collector office, Latur.

6. Shri. Shankar S/O Ramchandra Barge,

Addl. Collector, Hingoli,

C/O: Collector Office, Hingoli.

7. Shri. Pradeep S/O Pradbhakar Kulkarni,

Residential Deputy Collector, Nanded,

C/o: Collector Office, Nanded.

8. Shri. Pratap S/O Sugreev Kale,

Deputy Election Officer,

C/o: Collector Office, Osmanabad.

9. Shri. Pandurang S/O Shankarrao Kamble,

Sub Divisional Officer, Kandhar,

Tal. Kandhar, Dist. Nanded.

...RESPONDENTS

WITH

WRIT PETITION NO. 12675 OF 2022

K. Suryakrishnamurty,

Aged 53 years, having office

address at: Dy. Secretary,

State Election Commission,

Maharashtra, New Administrative Building,

Mumbai-400032.

*6* WP DC PROMOTIONS

...PETITIONER

-VERSUS-

1. The State of Maharashtra,

Through The Chief Secretary,

Mantralaya, Mumbai 400032

2. The Additional Chief Secretary

(Revenue), Revenue and Forest

Department, Mantralaya,

Mumbai 400032

3. The Additional Chief Secretary

(Services), General Administration

Department, Mantralaya,

Mumbai 400032

4. The Additional Chief Secretary

Finance Department, Mantralaya,

Mumbai 400032

...RESPONDENTS

WITH

WRIT PETITION NO. 11692 OF 2022

1. The State of Maharashtra,

Through the Additional Chief Secretary,

Department of Revenue & Forest Department

Mantralaya, Mumbai- 400 032

2. The Additional Chief Secretary

General Administration Department

Mantralaya, Mumbai-400032.

3. The Additional Chief Secretary

Finance Department

Mantralaya, Mumbai- 400032.

4. The Principal Secretary to Government,

*7* WP DC PROMOTIONS

Law and Judiciary Department,

Mantralaya Mumbai.

...PETITIONERS

-VERSUS-

1.Shivaji S/o Tukaram Shinde,

Age- 54 years, Occu. : Service,

as Asstt. Commissioner [B.C. Cell]

in O/o Div. Commissioner, Aurangabad,

R/o. H.No.13, Om Akanksha Housing,

Society, Plot No. 36, Pariljat Nagar,

Cidco, N-4, Aurangabad.

2.Sunil Vitthalrao Yadav,

Age:-55 years, Occu. : Service,

as Sub-Divisional Officer, Latur,

R/o. "Sinhgad", Govt. Quarter,

Opp. Tahsil Office, Latur.

3.Shri Tushar s/o Eknath Thombre,

Addl. Collector, Beed,

C/o : Collector Office, Nagar Road,

Beed.

4.Shri Arvind/o Rameshrao Lokhande,

Addl. Collector, Latur,

C/o : Collector Office, Latur.

5.Shri Shankar s/o Ramchandra Barge,

Addl. Collector, Hingoli,

C/o: Collector Office, Hingoli.

6.Shri Pradeep s/o Prabhakar Kulkarni,

Residential Deputy Collector, Nanded,

C/o: Collector Office, Nanded.

7.Shri Pratap s/o Sugreev Kale,

Deputy Election Officer,

C/o : Collector Office, Osmanabad.

*8* WP DC PROMOTIONS

8.Shri Pandurang s/o Shankarrao Kamble,

Sub Divisional Officer, Kandhar,

Tal. Kandhar, Dist. Nanded.

...RESPONDENTS

WITH

WRIT PETITION NO. 12699 OF 2022

Nitin Gunaji Mahajan,

Age : 52 years, Working as Additional

Collector, currently working as

Chief Officer, Konkan Housing and

Area Development Board, MHADA,

Bandra (East), Mumbai-400051.

...PETITIONER

-VERSUS-

1.State of Maharashtra,

through Chief Secretary,

Mantralaya, Mumbai-400032.

2.The Additional Chief Secretary

(Revenue), Revenue and Forest

Department, Mantralaya,

Mumbai-400032.

3.The Additional Chief Secretary

(Services), General Administration

Department, Mantralaya,

Mumbai-400032.

4.The Additional Chief Secretary,

Finance Department, Mantralaya,

Mumbai-400032.

...RESPONDENTS

*9* WP DC PROMOTIONS

WITH

WRIT PETITION NO. 11762 OF 2022

1. The State of Maharashtra,

Through the Additional Chief Secretary,

Department of Revenue & Forest Department

Mantralaya, Mumbai- 400 032

2. The Additional Chief Secretary

General Administration Department

Mantralaya, Mumbai-400032.

3. The Additional Chief Secretary

Finance Department

Mantralaya, Mumbai- 400032.

4. The Principal Secretary to Government,

Law and Judiciary Department,

Mantralaya Mumbai.

...PETITIONERS

-VERSUS-

1.Smt. Samiksha D/o Ramakant Chandrakar

Age: 50 Years, Occ: Service

Deputy Commissioner (Revenue) office

Aurangabad, R/at Plot No. 363, Sector-E,

N-1 , CIDCO, Aurangabad 431003.

2. Shri. Pandurang Ramrao Kulkarni

Age: 55 Years, Occ: Service as

Deputy Commissioner (Rehabilitation)

Divisional Commissioner (Revenue) Office

Aurangabad, R/at Plot No.20 Indradhanu

Opp. Kasliwal Corner, N-2 CIDCO,

Aurangabad. 431003.

3.Shri. Vijay Shankarrao Deshmukh,

Age: Major, Occupation; Service

as Additional Collector,

*10* WP DC PROMOTIONS

Collectorate,Pune.

4. Shri. Trigun Shamrao Kulkarni

Age : Major, Occupation; Service as

Deputy Commissioner (Supply)

Divisional Commissioner (Revenue)'s Office,

Pune Division, Pune.

5. Smt. Rupali d/o Vilas Awale

Age: Major, Occupation; Service

as Additional Collector,

Collectorate, Osmanabad.

6. Smt.Swati Laxmanrao Deshmukh,

Age: Major, Occupation Working as

Deputy Commissioner (Supply)

Divisional Commissioner (Revenue)' s Office,

Nashik Division, Nashik.

7.Shri. Arvind Rameshrao Lokhande.

Age: Major, Occupation : Service as

Additional Collector,

Collectorate, Latur.

8. Shri. Tushar Eknath Thombre.

Age: Major, Occupation; Service

as Additional Collector,

Collectorate, Beed.

...RESPONDENTS

…

Shri Atul Rajadhyaksha, Senior Advocate a/w Shri Akhilesh

Dubey, Shri Uttam Dubey, Shri Amit Dubey, Shri Krishna P.

Rodge, Shri Rajuram Kuleriya i/by Law Counsellors, Advocate

for the Petitioners in Writ Petition No.12699/2022.

Shri Akhilesh Dubey, Advocate a/w Shri Jiwan J. Patil, Advocate

for the Petitioners in Writ Petition No.12675/2022.

Shri V.D. Sapkal, Senior Advocate a/w Shri Ujwal S. Patil and

Shri Bhalchandra Shinde, Advocates for the Petitioners in Writ

*11* WP DC PROMOTIONS

Petition Nos.9632/2022 and 9631/2022.

Shri Ajay Deshpande, Shri Swapnil Joshi, Shri Sameer

Kurundkar and Shri Sandip Kulkarni, Advocates for the

Petitioners in Writ Petition No.9163/2022.

Shri Ram S. Apte, Senior Advocate, Special Counsel a/w Shri

S.K. Tambe, AGP, for the Petitioners/ State of Maharashtra in

Writ Petition No.11692/2022 and Writ Petition No.11762/2022.

Shri P.R. Katneshwarkar, Special Counsel a/w Shri S.K. Tambe,

AGP, for the Respondents/ State in Writ Petition Nos.9163/2022,

12699/2022, 12675/2022, 9631/2022 and 9632/2022.

Shri Ashutosh Kumbhakoni, Senior Advocate a/w Shri P.P. More,

Advocate for Respondent Nos.5 and 10 in Writ Petition

No.9163/2022.

Shri Shri Sushant Dixit, Advocate a/w Shri Pandurang Gaikwad,

Advocate for Respondent No.6 in Writ Petition No.9163/2022,

for Respondent No.8 in Writ Petition No.9632/2022 and

Respondent Nos.7 to 9 in Writ Petition No.9631/2022.

Shri V.D. Sapkal, Senior Advocate a/w Shri Bhalchandra Shinde

and Shri Ujwal S. Patil, Advocates for the Respondent Nos.6 to 9

in Writ Petition No.9163/2022, for Respondent Nos.3 to 8 in Writ

Petition No.11692/2022 and for Respondent No.3 in Writ

Petition No.11762/2022.

Shri Avinash S. Deshmukh a/w Shri S.G. Joshi, Advocates for

Respondent Nos.3 and 4 in Writ Petition No.9632/2022 and for

Respondent Nos.1 and 2 in Writ Petition No.11692/2022.

…

(Dates of hearing :- 07.08.2023, 08.08.2023, 09.08.2023,

10.08.2023, 18.08.2023, 23.08.2023, 29.08.2023, 12.09.2023,

27.09.2023, 12.10.2023, 19.10.2023, 03.11.2023, 30.11.2023,

01.12.2023, 06.12.2023, 07.12.2023, 22.12.2023, 16.01.2024,

31.01.2024, 08.02.2024, 02.05.2024, 09.05.2024, 28.06.2024,

05.07.2024 and 12.07.2024)

*12* WP DC PROMOTIONS

CORAM : RAVINDRA V. GHUGE

&

Y. G. KHOBRAGADE, JJ.

Reserved on : 12

th

July, 2024

Pronounced on : 08

th

August, 2024

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

1. Rule. Rule made returnable forthwith and heard

finally, with the consent of the parties.

We are reminded of the words of the Hon’ble

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

and others, (1984) 4 SCC 450 :-

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

se seniority between promotees and direct recruits”.

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

‘Directly Appointed Deputy Collectors’ would be referred to as

‘DDC’ and the ‘Promotee Deputy Collectors’ would be referred

to as ‘PDC’.

3. The two Petitions (Transfer Application Nos.1 and 2

*13* WP DC PROMOTIONS

of 2021) were filed by Shivaji Tukaram Shinde with Sunil

Vitthalrao Yadav and Smt. Samiksha Ramakant Chandrakar with

Pandurang Ramrao Kulkarni. These four Applicants (PDC) had

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

Deputy Collectors for the period 01.01.1999 to 31.12.2003

published by the State vide circular dated 31.12.2020, which was

the impugned seniority list. The grievance of these Applicants

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

and 413 (provisional seniority list published on 24.09.2009) to

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

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

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

was contended that the State desired to favour the DDC and

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

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

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

of 2021, are reproduced hereunder :-

“Transfer Application No.1/2021:-

A) Rule may kindly be issued.

B) Rule may kindly be made absolute by quashing

& setting aside the impugned final seniority list

of the cadre of Deputy Collectors dated

31/12/2020 (Annex. H) prepared & published

by Resp. No. 1.

*14* WP DC PROMOTIONS

C) Rule may kindly be made absolute by further

directing the Resp. No. 1 to prepare & publish

a fresh final seniority list of the cadre of Deputy

Collectors perfectly in tune with the provisions

of Rules 4, 10, 12, 13 and 14 of the

"Maharashtra Deputy Collectors (Recruitment,

Fixation of Seniority and Confirmation) Rules,

1977 and on the basis of the provisional

seniority list already prepared & published on

24/09/2009.

D) Pending the admission, hearing and final

disposal of this Writ Petition the effect,

operation and implementation of the impugned

final seniority list of the cadre of Deputy

Collectors dated 31/12/2020 (Annex. H)

prepared & published by Resp. No. 1 may

kindly be stayed and the Resp. No. 1 may kindly

be restrained from effecting any promotions on

the basis of the said list.

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

petitioner.

F) Any other appropriate relief as may be deemed

fit by this Hon'ble Court be granted in favour of

the petitioner.

Transfer Application No.2/2021:-

A) Writ Petition may kindly be allowed.

B) The impugned Final Seniority Lists published

by R-1 vide Circular dated 31.12.2020 at Exh.

'E' may kindly be quashed and set aside, by

directing to prepare the Seniority Lists strictly

in tune with the provisions of Rule 4 read with

Rule 13 and Rule 14 of the Maharashtra

Deputy Collectors (Recruitment, Fixation of

Seniority & Confirmation) Rules, 1977 at Exh.

'B' hereto.

C) Pending hearing and final disposal of this Writ

Petition, execution & implementation of the

impugned Seniority List published by R-1 vide

Circular dated 31.12.2020 at Exh. 'E' may

kindly be stayed by keeping the same in

*15* WP DC PROMOTIONS

abeyance.

D) Respondent No. 1 may kindly be directed not to

effect further promotions on the basis of the

impugned Seniority Lists published vide

Circular dated 31.12.2020 at Exh. 'E'.

E) Any other suitable and equitable relief, to

which the petitioners are entitled to, and this

Hon'ble Court deems fit, may kindly be granted

in their favour.”

4. All the Petitioners, including the State of

Maharashtra, expressly canvassed in the open Court that they all

are aggrieved by the impugned Judgment and order dated

26.08.2022, delivered by the Maharashtra Administrative

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

of the Petitioner desired that the impugned judgment should be

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

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

be disturbed. We had granted adjournments to the litigating

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

remand the matters to the Tribunal, for fresh consideration.

However, the original Applicants insisted that these Petitions

should be considered on their merits. Shri Kumbhakoni, learned

Senior Advocate submitted that the whole judgment be set aside

and the matters be remanded to the Tribunal and, since no

*16* WP DC PROMOTIONS

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

permitted to proceed with promotions, notwithstanding the

remanded cases before the Tribunal

5. We have recorded the lengthy submissions of the

learned advocates. We could not conduct hearing in these matters

in between 08.02.2024 to 02.05.2024 as one of us (Brother

Justice Khobragade) was not available due to medical reasons.

Lastly, they have addressed us on 05.07.2024 and additional

written notes were tendered on 12.07.2024. It would be apposite

to summarize their submissions, in this judgment.

Submissions of learned Senior Advocate Shri V.D. Sapkal

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

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

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

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

the purposes of settling the deemed dates of promotion.

7. Both the Petitioners, namely, Smt.Samiksha

Ramakant Chandrakar and Shri Pandurang Ramrao Kulkarni,

*17* WP DC PROMOTIONS

were appointed as Tahasildar on 24.02.1994 and 31.05.1994,

respectively. Both of them assumed office as Tahasildar on the

same day, 02.03.1994. Consequentially, both of them completed

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

Deputy Collector, on 09.07.1999 and both were then promoted to

the cadre of Additional Collector, from 30.01.2020.

8. Shri Sapkal has tendered a compilation of

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

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

the State Government, on 09.07.1999, for appointing Tahasildars

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

order clearly indicates that such Tahasildars are being granted

temporary promotion in the cadre of Deputy Collector “Nivval

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

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

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

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

promotion will be subject to the approval of the Maharashtra

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

expressly mentioned that they would not be entitled to any

*18* WP DC PROMOTIONS

benefits and the Divisional Commissioners were directed to

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

temporary promotion and in the nature of any changes that may

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

Government. To be more specific, the directions issued are

reproduced as under:-

"

संबंधितविभागीय आयुक्तांनाविनंती करण्यात येते की

, पदोत्रती

अधिकान्यांना त्यांच्यानियुक्तीच्याठिकाणी रुजू होण्यासाठी सध्य

कार्यभारातून तात्काळ कार्यमुक्त करावे

.

संबंधित अधिकान्यांना उपजिल्हाधिकारी पदावर देण्यात आलेली

पदोन्नती ही पूर्णपणे तात्पुरत्या स्वरूपाची असून शासनवमहाराष्ट्रलोकसेवा

आयोगाच्या अंतिम मान्यतेच्या अधीन राहून देण्यात येत आहे या

पदोन्नतीमुळे त्यांना उपजिल्हाधिकारी संवर्गात सेवाजेष्ठतावेतननिश्चिती

,

इत्यादीबाबत कोणत्याही प्रकारचे अधिकारी प्रदान होणार नाहीत

.

विभागीय आयुक्तांनी पदोन्नत अधिकान्यांना अशीही जाणीवदयावी

की,

ही पदोन्नती तात्पुरती असल्या कारणानेविभाग बदलून देण्यासंबंधीच्या

किंवा त्यांच्या प्रत्यक्ष नेमणूकाविभाग स्तरावर बदल करण्यासंबंधीच्या

त्यांच्या कोणत्याहीविनंतीची शासनाकडून दखल घेतली जाणार नाही

.”

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

Tahasildars were promoted in consultation of the MPSC and,

*19* WP DC PROMOTIONS

therefore, their temporary promotion would not accrue any right

for regularization from the deemed dates of promotions. Though

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

impugned final seniority list, cannot be faulted.

10. Shri Sapkal then draws our attention to the

Government Order dated 30.01.2020, which is with regard to yet

another temporary promotion granted to these Petitioners. The

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

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

Natha Padwal and others vs. State of Maharashtra and

others) and connected petitions wherein, this Court had ordered

as under:-

“(iii)Needless to mention, it is open for the State

Government to take an independent decision

whether to make promotions on adhoc basis

pending finalization of seniority list.”

11. He then draws our attention to the specific words

“Saksham Pradhikarnachya Mannyatene Tadartha Padonnatya

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

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

appointed Deputy Collector (DDC). Smt.Chandrakar is at

*20* WP DC PROMOTIONS

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

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

appointed Deputy Collector from the 2001 batch and who is the

Petitioner in Writ Petition No.9632/2022.

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

Government order dated 30.01.2020, which is reproduced as

under:-

"4.

उपजिल्हाधिकारी

(नि

वडश्रेणी

) (गट-अ)

या संवर्गातील उक्त

अधिकान्यांना अपरजिल्हाधिकारी

(गट-अ)

या संवर्गात खालील अटी

/

शर्तीच्या अधीन राहून तदर्थपदोन्नत्या देण्यात येत आहेत

. :-

(i)

पदोन्नतीसाठी पात्रठरलेल्या उपरोक्त अधिकाऱ्यांना देण्यात

येणाऱ्या अपरजिल्हाधिकारी संवर्गातील ह्या तदर्थस्वरुपाच्या आहेत

.

(ii)

संदर्भक्र

.

२ येथील नमूद सामान्य प्रशासनविभागाच्या

पत्रान्वये प्राप्त अपरजिल्हाधिकारी पदावरील पदोन्नतीचीनिवड सूची ही उप

जिल्हाधिकारी संवर्गाचीदि

.०३.०३.

२०१८ ची तात्पुरती ज्येष्ठता सूची

विचारात घेऊन तयार करण्यात आली असल्याने सदर पदोन्नत्या तदर्थ

स्वरुपाच्या राहतीलवउपजिल्हाधिकारी यानिम्न संवर्गाची ज्येष्ठता सूची

अंतिम झाल्यानंतर होणाऱ्या तद्वदनुषंगिक सेवा जेष्ठतेच्या अधिन राहून सदर

अधिकाऱ्यांच्या पदोन्नत्यानियमित करण्यासंदर्भात आदेशनिर्गमित करण्यात

येतील.

*21* WP DC PROMOTIONS

(iii)

सदरनिवडसूचीवतदर्थपदोन्नती यास महाराष्ट्रलोकसेवा

आयोगाची मान्यता प्राप्त झाल्यानंतरच पदोन्नतीच्या पदावर सेवाज्येष्ठताव

अन्य सेवाविषयक लाभमिळण्यास पदोन्नत अधिकारी पात्र राहतील

.

(iv)

सदर सर्वतदर्थपदोन्नत्या या अपरजिल्हाधिकारी संवर्गाच्या

वित्तविभागाच्या मान्यतेने मंजूर होणाऱ्या सुधारित आकृतीबंधनिश्चितीच्या

अधिन राहतील

.

(v)

प्रतिनियुक्तीवर कार्यरत असलेले ज्येष्ठ अधिकारी यांचे

प्रत्यावर्तन झाल्यानंतर त्यांच्यासाठी अपरजिल्हाधिकारी या संवर्गात पद

रिक्त नसल्यास या आदेशातील कनिष्ठतम अधिकान्यांना पदावनत

करण्याच्या अधीन राहून सदर तदर्थपदोन्नती देण्यात येत आहे

.

(vi) मा.

सर्वोच्च न्यायालयात प्रलंबित असलेल्याविशेष अनुमती याचिका क्र

.

२८३०६/

२०१७ मध्ये होणाऱ्या अंतिमनिर्णयाच्या अधिन राहून

, मा. उच्च

न्यायालय,

मुंबई यांनीरिट याचिका क्र

. ११३६८/

२०१९वइतर

याचिकांमध्येदि

.

१८डिसेंबर

,

२०१९ रोजीदिलेल्यानिर्णयानुसार तसेच

सामान्य प्रशासनविभागानेदि

.

२९डिसेंबर २०१७ च्या पत्रान्वयेदिलेल्या

मार्गदर्शनपर सूचनांनुसार सदरहूतदर्थपदोन्नत्या देण्यात येत आहेत

.”

He, therefore, submits that unless the State of

Maharashtra acquires the approval of the Commission, there

cannot be confirmation of an employee on the said promotional

post.

*22* WP DC PROMOTIONS

13. He, then draws our attention to the Government

circular, dated 03.03.2018 by which a provisional seniority list

was declared by the State Government. This was challenged

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

(Ajinkya Natha Padwal and others vs. State of Maharashtra

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

Court delivered a Judgment on 18.12.2019, more specifically,

paragraph Nos.11 to 18, as under:-

“11. During the pendency of the O.A. No.916 of

2016, pursuant to the order dated 25.07.2017

in Miscellaneous Application No.292 of 2017

filed by the State Government, the Tribunal

allowed the State Government to effect

promotions in the cadre of Additional Collector

(Selection Grade) subject to the outcome of the

O.A. based on provisional seniority list then in

existence. The Tribunal passed the order

directing the State Government that the final

proclamation of the seniority list should not be

made without express leave of the Tribunal.

12. On 03.10.2017 the State Government effected

promotions to the posts of Deputy Collector

(Selection Grade) and Additional Collector on

the basis of the draft final seniority list. Till

03.10.2017 all promotions were made on the

basis of earlier provisional seniority list.

13. The State Government thereafter published a

fresh provisional seniority list of Deputy

Collectors on 03.03.2018 for the period

01.01.1999 to 31.12.2000 and 01.01.2001 to

31.12.2003. It is the contention of the

*23* WP DC PROMOTIONS

promotees that this provisional seniority list of

3.3.2018 had the effect of pushing down the

promotee Deputy Collectors below the Direct

Recruits in the order of seniority. It is

contended by promotees that by publishing the

said list the benefit of seniority to the

promotees from the dates of their actual

promotions is denied and the quota rule in

favour of direct recruits was wrongly applied.

14. The provisional seniority list of 03.03.2018 was

challenged by one promotee-Deputy Collector

by fling O.A. No.308 of 2018. However, O.A.

No.308 of 2018 was disposed of by the Tribunal

on 03.09.2018 as challenge to the provisional

seniority list was premature.

15. On 07.09.2018 one of the promotee (Ajinkya

Natha Padwal – the petitioner No.1 in Writ

Petition No.11368 of 2019) filed M.A. No.468

of 2018 in O.A. No.916 of 2016 seeking interim

order of stay on promotions on the basis of

provisional seniority list dated 03.03.2018. On

14.09.2018 the Tribunal by its order in M.A.

No.468 of 2018 directed the State Government

not to issue any order of ad-hoc promotions

unless the seniority list is finalised without

express leave of the Tribunal.

16. Thereafter, the State Government filed M.A.

No.429 of 2019 seeking leave of the Tribunal to

effect promotions from the cadre of Deputy

Collector to the grade of Deputy Collector

(Selection Grade) purely by way of temporary

arrangement, subject to further orders and on

the terms and conditions that may be imposed

by the Tribunal. By order dated 13.08.2019 the

Tribunal permitted the State Government to

issue ad-hoc promotions to the post of Deputy

Collector (Selection Grade) “for the purpose

stated in the M.A.”. Though it is recorded in the

order that the promotees consented to such

order being passed, according to the

promotees, said concession was erroneously

*24* WP DC PROMOTIONS

recorded. It is the contention of the promotees

that the application was made for speaking to

the minutes but the same has not been disposed

of .

17. Thereafter, on 14.08.2019 the State

Government issued promotion orders.

According to the promotees the dates of

promotion of 48 promotee Deputy Collectors in

the Selection Grade were illegally altered. By

second order dated 14.08.2019, 40 Direct

Recruits are granted ad-hoc promotions as

Deputy Collectors (Selection Grade)

retrospectively from various dates beginning

from 31.05.2011.

18. Sometime after 14/8/2019 the Direct Recruits

applied to the Tribunal for withdrawal of O.A.

No.916 of 2016. While allowing the application

for withdrawal by impugned order dated

29/8/2019 the Tribunal recorded that the State

Government had already promoted 48 Officers

from the provisional seniority list published on

03.03.2018 of Deputy Collector (Selection

Grade) by an order dated 14.08.2019. The

Tribunal further permitted the State

Government to promote 57 Officers who are

eligible, suitable and in the zone of

consideration.”

14. He submits that after considering the submissions on

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

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

submissions on behalf of the State Government, were recorded in

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

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

*25* WP DC PROMOTIONS

“23. This is an inter se seniority dispute between

Direct Recruit Deputy Collectors and promotee

Deputy Collectors. The provisional seniority

list was published in 2009 and thereafter in

2014. Ad-hoc promotions were made on the

basis of these provisional seniority lists. The

provisional seniority lists of 2009 and 2014 are

prepared by granting seniority to the promotees

from the date of promotion by taking into

consideration the length of continuous service

in the cadre. Ad-hoc promotions in the grade of

Deputy Collectors and the post of Additional

Collectors also came to be made on the basis of

provisional seniority lists of 2009 and 2014. It

is the grievance of the Direct Recruits that the

provisional seniority lists are not prepared in

accordance with the Rules of 1977. According

to the Direct Recruits, Rules of 1977 provides

for 35% quota for Direct Recruits which is not

adhered to. The promotees were promoted as

against the quota meant for Direct Recruits.

The Direct Recruits contend that the promotees

have misconstrued the decision of the Tribunal

in O.A. No. 526 of 2004 as the Tribunal

nowhere indicates that quota meant for Direct

Recruits should not be followed while

publishing the combined seniority list.

24. The Direct Recruits approached the Tribunal by

fling O.A. No.916 of 2016 for direction that the

seniority list of Deputy Collectors should be

finalised. It is their contention that since 2009

the State Government is only publishing the

provisional seniority list and effecting

promotions on ad-hoc basis. Even during the

pendency of the O.A., the Tribunal granted

leave to the State Government to effect

promotions and/or the State Government

effected promotions on ad-hoc basis as per the

provisional seniority list of 2014.

25. It is when the State Government published the

provisional seniority list on 03.03.2018 that the

*26* WP DC PROMOTIONS

promotees were pushed down in the provisional

seniority list. When the question of further

promotions arose, the Direct Recruits who now

were placed higher in the seniority list of

3/3/2018 are considered by the State

Government for promotion on ad-hoc basis.

Accordingly, 48 Officers were promoted from

the provisional seniority list of 03.03.2018 as

Deputy Collector (Selection Grade) by an order

issued on 14.08.2019. The State Government

also wanted to promote 57 officers from the list

of Deputy Collector (Selection Grade) as

Additional Collector in view of the

administrative exigency purely on temporary

basis. The State Government sought leave of

the Tribunal to issue orders promoting them.

Pending this application of the State

Government, the Direct Recruits made an

application for withdrawing the O.A. In our

opinion, the Tribunal should have simply

permitted the Direct Recruits to withdraw the

O.A. In the O.A. filed by the Direct Recruits

claiming the relief directing the State

Government to prepare the final seniority list,

the Tribunal has committed an error in

permitting the State Government to promote 57

officers as Additional Collectors. The

application made by the State Government

seeking leave to promote 57 officers would not

survive for consideration upon withdrawal of

the O.A. filed by direct recruits.

26. There is no serious challenge by any of the

parties to the direction issued by the Tribunal

to finalise the seniority list. In any case,

learned Senior Counsel Shri Apte has made a

statement that the State Government would

finalise the seniority list by end of January,

2020 after taking into considering the

representations and objections of all

concerned. Learned Senior Counsel Shri Apte

has further clearly indicated that the

*27* WP DC PROMOTIONS

promotions which have been made during

pendency of O.A.916 of 2016 are purely on ad-

hoc basis and the same are subject to final

seniority list. In view of this submission, the

apprehension of the promotees, that Direct

Recruits who are promoted on ad-hoc basis in

terms of the provisional seniority list of 3 rd

March, 2018 would claim equities and assert

their rights on the basis of such ad-hoc

promotions is misplaced and unfounded.

27. It is further submission of learned Senior

Counsel Shri Apte that even if the order of the

Tribunal is sustained, no prejudice will be

caused to any one, as most of the promotees

including the direct recruits who are parties to

these Petitions are likely to get promotions on

adhoc basis. These promotions will obviously

be subject to final seniority list. According to

learned Senior Counsel Shri Apte only some of

the petitioners who are represented by learned

Senior Counsel Shri Setalwad are likely to be

deprived of the benefit of ad-hoc promotion as

they are not in the zone of consideration for

promotion in terms of the provisional seniority

list of 3rd March, 2018.

28. Taking an over all view of the matter, we refrain

from addressing on the larger issue raised by

learned Senior Counsel for the petitioners that

the direct recruits should not be allowed to

continue to take advantage of the interim

orders in their favour once they have

withdrawn the O.A.. Suffice it to observe that

even on the previous occasions, the ad-hoc

promotions were made on the basis of the

provisional seniority list of 2009 and those of

2014 which by and large benefited the

promotees. The provisional seniority list of 3rd

March, 2018 ensures to the benefit of direct

recruits. Even the State Government has taken

a specific stand that the final seniority list

would be published by the end of January,

*28* WP DC PROMOTIONS

2020. In this view of the matter, we do not find

this is to be a ft case to interfere with the ad-

hoc promotions already made on the basis of

the provisional seniority list of 3rd March, 2018

which even according to Shri Apte are purely

on ad-hoc basis subject to final seniority list. It

is therefore clear that the said promotions are

purely on ad-hoc basis subject to the final

seniority list to be prepared by the State

Government by the end of January, 2020.

29. We are however of the opinion that Clause (6)

of the impugned order of the Tribunal which

permits the State Government to promote 57

officers calls for interference. According to us,

on a motion made by the direct recruits for

withdrawal of the O.A., the Tribunal should not

have permitted the State Government to

promote 57 direct recruits, more so, when the

O.A. was at the instance of the direct recruits

essentially for the relief of finalising the

seniority list. On a motion made by the direct

recruits for withdrawal of the O.A., the

question of considering any pending

application and that too of the State

Government was uncalled for. The other reason

why we are inclined to interfere with clause (6)

of the impugned order passed by the Tribunal is

that by issuing this direction the promotees are

deprived of an opportunity to test the

correctness of the ad-hoc promotions if made

by the State Government before the Tribunal.

We therefore quash and set aside Clause (6) of

the impugned order passed by the Tribunal. We

may however hasten to add that considering the

exigency of the administration, it is for the

State Government to independently consider

the question of effecting ad-hoc promotions

pending finalisation of seniority list which will

afford a fair opportunity to the aggrieved to test

the decision before the Tribunal on grounds

legally permissible. Hence the following order.

*29* WP DC PROMOTIONS

ORDER

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

August, 2019 passed by the Tribunal in O.A.

No. 916 of 2016 and O.A. No. 1099 of 2016 is

quashed and set aside.

(ii) The statement made by learned Senior Counsel

Shri Apte on instructions that the State would

finalise the seniority list by the end of January,

2020 after considering the representations and

objections to the provisional seniority list dated

3rd March, 2018, is accepted.

(iii) Needless to mention, it is open for the State

Government to take an independent decision

whether to make promotions on ad-hoc basis

pending finalisation of seniority list.

(iv) Writ Petitions are partly allowed.”

15. He draws our attention to an Original Application

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

of Maharashtra and others), preferred by the promotees before

the Maharashtra Administrative Tribunal (Tribunal) wherein, a

judgment was delivered on 09.01.2004, in which, the Tribunal

concluded as under:-

“The respondent No.1 is directed to finalise the

seniority list of Deputy Collectors determining

the inter-se seniority among promotee Deputy

Collectors and directly recruited Deputy

Collectors on the basis of the relevant rules and

the direction given by High Court in W.P. No.

4548 of 1983 and also after deciding the

objections raised by the applicants to the

provisional seniority list within a period of six

months from today. The respondent No.1,

*30* WP DC PROMOTIONS

however, is at liberty to make selection for

promotion on the basis of the provisional

seniority list subject to condition that

promotions given on the basis of such selection

shall be subject to the inter-se gradation in the

final seniority list. O.A. is disposed of

accordingly. No order as to costs.”

16. Two Miscellaneous Applications bearing Nos.188

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

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

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

the following conclusions in paragraphs 8 to 10:-

“8)We find that the applicants, in their petition,

relied upon the decision in W.P. No. 4548/1983

in order to make a point regarding the date of

seniority in respect of direct recruits to be

counted from the date of then actual taking

over charge. It is true that the judgment passed

in the said W.P. contains direction to prepare

gradation list by determining the seniority of

the promotee Dy. Collectors with effect from the

date of their continuous officiation and in

respect of direct recruits from the date of then

actual taking over charge. But as pointed out

by the learned Chief Presenting Officer the said

direction is applicable only to the seniority list

of the Dy. Collectors recruited against the

vacancies during the period 1972-1975 when

the Maharashtra Dy. Collectors (Recruitment,

Fixation of Seniority and Confirmation) Rules

1977 were not framed. It is not the case of the

original applicants that they were recruited

during that specific period. Hence the principle

laid down in the judgment passed in the said

*31* WP DC PROMOTIONS

W.P.No. 4548/83 shall not be applicable to

them. The Maharashtra Dy. Collectors

(Recruitment, Fixation of Seniority and

Confirmation) Rules 1977 specifically provide

the manner in which the inter-se seniority

between promotee and direct recruit Dy.

Collectors to be determined. Hence we find that

the reference to the judgment passed in W.P.No.

4548/83 in the operative part of the order

passed by this Tribunal in O.A. No. 763 of 2003

is not relevant as far as determination of

seniority of the original applicants is

concerned. The order dated 9.1.2004 passed by

this Division Bench of the Tribunal in the said

O.A. therefore needs to be modified.

9) By filing M.A.No. 215 of 2004, the applicant

(Original respondent State Govt.) has prayed

for grant of additional six months time for

finalizing the seniority list of Dy. Collectors.

Considering the facts and circumstances,

discussed above in respect of M.A. No. 188 of

2004, we of opinion that the request needs to be

granted.

10) We therefore pass the following order.

ORDER

1. Both these miscellaneous applications are

allowed.

2. The operative part of the order dated 9.1.2004

in O.A. No. 763 of 2003 is modified and shall

read as follows:

"The respondent no. 1 is directed to finalize the

seniority list of Dy. Collectors determining the

inter-se seniority among promotee Dy.

Collectors and direct recruit Dy. Collectors on

the basis of relevant rules and also after

deciding the objections raised by the applicants

to the provisional seniority list within a period

of six months from today. The respondent no. 1,

however is at liberty to make selection for

promotion on the basis of the provisional

seniority list subject to condition that

*32* WP DC PROMOTIONS

promotions given on the basis of such selection

shall be subject to the inter-se gradation in the

final seniority list. O.A. is disposed of

accordingly. No order as to costs".

3. Additional time of six months is granted to the

applicant from today for implementing the

order dated 9.1.2004, passed in O.A. No. 763 of

2003.

4. No order as to costs.”

17. The above orders were challenged in Writ Petition

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

Maharashtra and others), (Civil Appellate Jurisdiction,

Mumbai) and this Court delivered the judgment on 14.06.2018,

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

“23] In fact, it is quite clear that the judgment of this

court in Writ Petition No. 4548 of 1983 was in

the context of appointees between 1972 to 1975

when there were no statutory rules for

determination of interse seniority. This court,

therefore, applying the principles laid down in

S.B. Patwardhan (supra) formulated the

principles to be applied in the meantime. After

the 1983 Rules entered into force therefore,

there was no question of once again falling

back upon the principles in Writ Petition No.

4548 of 1983.

24] Significantly, it is not even the case of the

petitioners that they are appointees between

1972 and 1975 or that 1983 Rules do not apply

to the determination of their seniority.

Therefore, we see no merit in the attack on

order dated 23.6.2004 based upon the

restrictive parameters of review jurisdiction or

*33* WP DC PROMOTIONS

even otherwise on merits.

25] As noted earlier, all that the impugned

judgments and orders had directed was the

finalisation of the provisional seniority list in

accordance with law and after taking into

consideration the objections of the petitioners.

Now that the seniority list has already been

finalised and such finalised seniority list is not

under challenge, we see no good ground to

interfere with the impugned judgments and

orders.

26] Since the finalised seniority list is not under

challenge, we are not in a position to know

whether such finalised seniority list is

consistent with the rules as well as the law laid

down by the Hon'ble Supreme Court in the

decisions upon which reliance is placed by

Mr.Rajadhyaksha. Suffice to note that there is

no inconsistency between the directions issued

by the MAT in the impugned judgments and

orders and the decisions upon which reliance is

placed by Mr. Rajadhyaksha. This is because as

noted repeatedly, the impugned judgments and

orders had merely directed the State to finalise

the seniority list in accordance with law and

after taking the petitioners objections.

27] For all the aforesaid reasons, we dismiss this

petition. Rule is discharged. There shall be no

order as to costs.”

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

the directly appointed Deputy Collectors (DDC/ direct

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

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

the dates of their regular promotion and not from the dates when

*34* WP DC PROMOTIONS

they were granted adhoc promotions, since the Maharashtra

Deputy Collector (Recruitment, Fixation of Seniority and

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

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

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

not as adhoc Deputy Collectors.

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

judgment delivered by the Honourable Supreme Court, on

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

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

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

He contends that this judgment crystallizes the law that adhoc

service cannot be counted for conferring the benefits of seniority

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

observation of the Honourable Supreme Court in paragraph

No.20, which reads thus:-

“20. The law on the issue of whether the period of

ad hoc service can be counted for the purpose

of determining seniority has been settled by this

Court in multiple cases. In Direct Recruits

(supra), a Constitution Bench of this Court has

observed:

“13. When the cases were taken up for

*35* WP DC PROMOTIONS

hearing before us, it was faintly suggested that

the principle laid down in Patwardhan case

[(1977) 3 SCC 399: 1977 SCC (L&S) 391:

(1977) 3 SCR 775] was unsound and fit to be

overruled, but no attempt was made to

substantiate the plea. We were taken through

the judgment by the learned counsel for the

parties more than once and we are in complete

agreement with the ratio decidendi, that the

period of continuous officiation by a

government servant, after his appointment by

following the rules applicable for substantive

appointments, has to be taken into account for

determining his seniority; and seniority cannot

be determined on the sole test of confirmation,

for, as was pointed out, confirmation is one of

the inglorious uncertainties of government

service depending neither on efficiency of the

incumbent nor on the availability of substantive

vacancies. The principle for deciding inter se

seniority has to conform to the principles of

equality spelt out by Articles 14 and 16. If an

appointment is made by way of stop-gap

arrangement, without considering the claims of

all the eligible available persons and without

following the rules of appointment, the

experience on such appointment cannot be

equated with the experience of a regular

appointee, because of the qualitative difference

in the appointment. To equate the two would be

to treat two unequals as equal which would

violate the equality clause. But if the

appointment is made after considering the

claims of all eligible candidates and the

appointee continues in the post uninterruptedly

till the regularization of his service in

accordance with the rules made for regular

substantive appointments, there is no reason to

exclude the officiating service for purpose of

seniority. Same will be the position if the initial

appointment itself is made in accordance with

*36* WP DC PROMOTIONS

the rules applicable to substantive

appointments as in the present case. To hold

otherwise will be discriminatory and

arbitrary…..

47. To sum up, we hold that

(A) Once an incumbent is appointed to a post

according to a rule, his seniority has to counted

from the date of appointment and not according

to date of his confirmation. The corollary to the

above rule is that where the initial appointment

is only ad hoc and not according to rules and

made as a stop-gap arrangement, the

officiation in such post cannot be taken into

account considering the seniority.”

The decision in Direct Recruits (supra) stands

for the principle that ad hoc service cannot be

counted for determining the seniority if the

initial appointment has been made as a stop

gap arrangement and not according to rules.

The reliance placed by the Single Judge in the

judgement dated 6 December 1991 on Direct

Recruits (supra) to hold that the ad hoc service

should be counted for conferring the benefit of

seniority in the present case is clearly

misplaced. This principle laid down in Direct

Recruits (supra) was subsequently followed by

this Court in Keshav Chandra Joshi v. Union of

India. Recently a two judge Bench of this Court

in Rashi Mani Mishra v. State of Uttar Pradesh,

of which one of us (Justice DY Chandrachud)

was a part, observed that the services rendered

by ad hoc employees prior to their

regularization cannot be counted for the

purpose of seniority while interpreting the

Uttar Pradesh Regularization of Ad Hoc

Appointment Rules. This Court noted that

under the applicable Rules, “substantive

appointment” does not include ad hoc

appointment and thus seniority which has to be

counted from “substantive appointment” would

*37* WP DC PROMOTIONS

not include ad hoc service. This Court also

clarified that the judgement in Direct Recruits

(supra) cannot be relied upon to confer the

benefit of seniority based on ad hoc service

since it clearly states that ad hoc appointments

made as stop gap arrangements do not render

the ad hoc service eligible for determining

seniority. This Court speaking through Justice

MR Shah made the following observations:

“36. The sum and substance of the above

discussion would be that on a fair reading of

the 1979 Rules, extended from time to time;

initial appointment orders in the year 1985 and

the subsequent order of regularization in the

year 1989 of the ad hoc appointees and on a

fair reading of the relevant Service Rules,

namely Service Rules, 1993 and the Seniority

Rules, 1991, our conclusion would be that the

services rendered by the ad hoc appointees

prior to their regularization as per the 1979

Rules shall not be counted for the purpose of

seniority, vis-à-vis, the direct recruits who were

appointed prior to 1989 and they are not

entitled to seniority from the date of their initial

appointment in the year 1985. The resultant

effect would be that the subsequent re-

determination of the seniority in the year 2016

cannot be sustained which was considering the

services rendered by ad hoc appointees prior to

1989, i.e., from the date of their initial

appointment in 1985. This cannot be sustained

and the same deserves to be quashed and set

aside and the seniority list of 2001 counting the

services rendered by ad hoc appointees from

the date of their regularization in the year 1989

is to be restored.

37. Now so far as the reliance placed

upon the decision of this Court in the case of

Direct Recruit Class II Engg. Officers' Assn.

(supra), relied upon by the learned Senior

Advocate appearing on behalf of the ad hoc

*38* WP DC PROMOTIONS

appointees is concerned, it is required to be

noted that even in the said decision also, it is

observed and held that where initial

appointment was made only ad hoc as a stop

gap arrangement and not according to the

rules, the officiation in such post cannot be

taken into account for considering the seniority.

In the case before this Court, the appointments

were made to a post according to rule but as ad

hoc and subsequently they were confirmed and

to that this Court observed and held that where

appointments made in accordance with the

rules, seniority is to be counted from the date of

such appointment and not from the date of

confirmation. In the present case, it is not the

case of confirmation of the service of ad hoc

appointees in the year 1989. In the year 1989,

their services are regularized after following

due procedure as required under the 1979

Rules and after their names were recommended

by the Selection Committee constituted under

the 1979 Rules. As observed hereinabove, the

appointments in the year 1989 after their

names were recommended by the Selection

Committee constituted as per the 1979 Rules

can be said to be the “substantive

appointments”. Therefore, even on facts also,

the decision in the case of Direct Recruit Class

II Engg. Officers' Assn. (supra) shall not be

applicable to the facts of the case on hand. At

the cost of repetition, it is observed that the

decision of this Court in the case of Direct

Recruit Class II Engg. Officers' Assn. (supra)

was considered by this Court in the case of

Santosh Kumar (supra) when this Court

interpreted the very 1979 Rules.”

The notification dated 3 May 1977 stated that

the ad hoc appointments were made in

administrative interest in anticipation of

regular appointments and on account of delay

*39* WP DC PROMOTIONS

that takes place in making regular appointment

through the concerned agencies. In this regard,

the vacancies were notified to the Employment

Exchange or advertisements were issued, as the

case maybe, by appointing authorities. The

appointments were not made on the

recommendation of the Punjab Subordinate

Service Selection Board. However,

subsequently a policy decision was made to

regularize the ad hoc appointees since their

ouster after a considerable period of service

would have entailed hardship. Thus, the initial

appointment was supposed to be a stop gap

arrangement, besides being not in accordance

with the rules, and the ad hoc service cannot be

counted for the purpose of seniority.”

20. Shri Sapkal has then drawn our attention to Rule

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

Rule 13 of the Maharashtra Deputy Collectors (Recruitment,

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

as under:-

“2. Definitions. In these rules, unless the context

otherwise requires,-

“(b) "Commission" means the Maharashtra Public

Service Commission;”

“(e) "deemed date" has the meaning assigned to it

in rules 7 and 13;”

“(i) "fortuitous service" means that service which is

rendered by a person during the period

commencing on the date of his actual

continuous officiation in a cadre and ending on

the deemed date of continuous officiation in

that cadre (such deemed date being later than

*40* WP DC PROMOTIONS

the date of the actual continuous officiation of

such person in the said cadre);”

“(n) "select list" means the initial list of officers who

are fit to be appointed as Tahsildars or, as the

case may be of Tahsildars who are fit to be

appointed as Deputy Collectors, in the order of

seniority assigned to them in such respective

list (each such list being drawn up by

Government in consultation with the

Commission).”

“4. Mode of recruitment to post of Deputy

Collector.-

(1) Appointment to the post of Deputy Collector

may be made either by nomination in the

manner provided by rule 5 or by promotion of

Tahsildars as provided by rule 10 or by transfer

on deputation of officers holding the posts of

Under Secretary to Government:

Provided that the appointment by nomination

shall be made in such manner as to ensure that

the total number of directly recruited Deputy

Collectors in the cadre of Deputy Collectors

shall not, at any time, be less than 35 per cent,

and not more than 50 per cent of the total

number of permanent posts in that cadre.

(2) For the purpose of complying with the proviso

to sub-rule (1) Government shall determine in

advance the number of nominations to be made

in each year.”

“5.Manner of appointment by nomination.-

(1) Appointment by nomination shall be made upon

the result of a competitive examination to be

held by the Commission in accordance with the

rules made by Government in that behalf.

(2) To be eligible for appearing at any such

examination, a candidate,-

(a) shall hold a degree of a statutory University

or a qualification recognised by Government as

equivalent thereto;

*41* WP DC PROMOTIONS

(b) shall have adequate knowledge of Marathi

for the purpose of reading, writing and

speaking fluently, in that language;

(c) shall not be less than 19 years and more

than 28 years) of age on 1

st

day of April of the

year following the year in which the posts are

advertised by the Commission:”

“8. Preparation of combined seniority list of

Tahsildars:-

(1) In each year, in accordance with the seniority

of all the Tahsildars determined under sub-rule

(6) of rule 7, a combined provisional seniority

list of Tahsildars serving in all the revenue

Divisions in the State (hereinafter referred to as

"the provisional seniority list of Tahsildars")

who have put in continuous service of five years

or more, shall be prepared by Government in

Form I showing their inter-se seniority as on

the 1

st

day of April of that year.

(2) After the preparation of such seniority list

under sub-rule (1), a copy thereof shall be kept

by Government for inspection in the office of

every Commissioner and of every Collector by

the persons interested therein. Government

shall also issue a press note announcing that

copies of the provisional seniority list of

Tahsildar have been kept for inspection as

aforesaid and calling upon persons concerned

to submit to the Commissioner of the Division

concerned, any objections or suggestions if any,

to such list within a period of sixty days from

the date of the press note.

(3) Every Commissioner shall forward the

suggestions and objections, if any received by

him under sub-rule (2) to Government with his

remarks within fifteen days from the last day of

the period specified in the press note for

submission of objections and suggestions.

(4) Government shall, after considering the

suggestions and objections and the remarks of

*42* WP DC PROMOTIONS

all the Commissioners, prepare the final

seniority list of Tahsildars.

(5) A copy of such final seniority list of Tahsildars

shall be kept by Government in the office of

every Commissioner and of every Collector for

information of the persons interested therein.

Government shall also issue a press note

announcing that copies of the final seniority list

of Tahsildars have been kept as aforesaid.”

“9.Constitution of Selection Committee and

preparation of select list of Tahsildars:-

(1) For the purpose of preparing a select list of

Tahsildar, Government shall constitute a

Selection Committee consisting of-

(1) Secretary, Revenue and Forests

Department of Government or where there are

two or more Secretaries in that Department,

one of them nominated by Government.

...Chairman

(2) Secretary (Personal) in the General

Administration Department of Government.

...Member

(3) Two Revenue Commissioners nominated

by Government (one of them shall be belonging

to Backward Classes, if available).

...Members

(4) Deputy Secretary in-charge of the subject

in the Revenue and Forests Department.

...Member/ Secretary

(2) The Committee shall meet in the month of

September or as soon as possible thereafter

every year; and subject to the provisions of

sub-rule (5), prepare a select list as provided in

this rule of Tahsildars fit to be promoted to the

cadre of Deputy Collectors.

(3) The Committee shall consider the cases of all

Tahsildars including,-

(i) those whose names are already included

in the select list prepared earlier but orders

*43* WP DC PROMOTIONS

regarding whose promotion to cadre of Deputy

Collectors have not been issued till the date of

the meeting,

(ii) those who, after being provisionally

promoted to the cadre of Deputy Collectors,

have been reverted as Tahsildars, and

(iii) those whose names are included in the

final seniority list of Tahsildars prepared under

sub-rule (4) of rule 8 in the order in which their

names appear in that list.

(4) The number of Tahsildars to be included in the

select list shall be, as nearly as may be, equal

to the vacancies in the cadre of Deputy

Collectors which are likely to arise during the

next twelve months (i.e. from 1

st

September to

31

st

August).

(5) The Committee shall take into consideration all

confidential reports about the officer in the

cadre of Tahsildars and then assess the merit of

that officer.

(6) Those officers who are considered to possess

outstanding merit, exceptional ability or

positive merit and have achieved tangible result

and show promise of being able to discharge

efficiently the duties and responsibilities of a

Deputy Collector shall alone be ranked

amongst the first 25 per cent of the total

number of officers to be included in the select

list. The officer to be ranked thereafter shall be

selected from amongst those who are

considered fit for the post of a Deputy

Collector.

(7) The select list drawn up by the Committee shall

be submitted to Government together with all

the relevant material including the confidential

reports about the officers concerned.

Government shall, thereafter, in consultation

with the Commission, determine the final select

list of Tahsildars fit to be promoted as Deputy

Collectors.”

*44* WP DC PROMOTIONS

“10. Provisional promotion to Deputy Collector's

cadre:-

(1) The Tahsildars whose names are included in the

final select list determined by Government

under sub-rule (7) of rule 9 shall be

provisionally promoted to a post in the cadre of

Deputy Collectors in the order of their ranking

in that list as and when vacancies occur in that

cadre:

Provided that, where such final select list is

exhausted and the exigencies of administration

require the vacancies in that cadre to be filled

up immediately, Government may, purely as a

stop gap arrangement, appoint,-

(i) where the fresh select list is yet to be

prepared, Tahsildars included in the final

seniority list of Tahsildars prepared under rule

8 in the order of their seniority in that list and

who are considered fit by it for promotion to the

cadre of Deputy Collectors after considering

up-to-date confidential reports about them,

(ii) where the Committee has drawn up a

select list but Government has not determined

the final select list in consultation with the

Commission as provided in sub-rule (7) of rule

9, the Tahsildars included in the select list

drawn by the Committee in the order of their

ranking in that list.

(2) The appointment made as a stop-gap

arrangement under the proviso to sub-rule (1)

shall be deemed to be a regular provisional

appointment under sub-rule (1) when the

officer in question is included in the final select

list determined by Government under sub-rule

(7) of rule 9. Where the officer appointed as a

stop-gap arrangement under the proviso to sub-

rule (1) is not included in such final select list,

he shall be reverted immediately after such

final select list is determined by Government

under sub-rule (7) of rule 9.

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

*45* WP DC PROMOTIONS

rule (2) shall continue to be provisional until

the officer has been considered fit to be

continued in the cadre of Deputy Collectors in

the review made under rule 12:

Provided that it shall be competent to

Government to revert any Deputy Collector

even before the completion of the review under

rule 12 if his work is considered unsatisfactory

or for any other reason considered sufficient by

Government for such reversion; and in such

cases, the Commission shall be consulted

within six months of the reversion.”

“12. Review of Duty Collectors promoted

provisionally:-

(1) Whenever the Selection Committee constituted

under rule 9 meets as required by sub-rule (2)

of that rule, it shall also consider the cases of

the officers who have been provisionally

promoted as Deputy Collectors under rule 10

and have so officiated for a continuous period

of not less than three years for determining

whether they are fit to be continued in the cadre

of Deputy Collectors.

(2) The Committed shall, after considering the

confidential reports of the officers for the

period during which the officers had officiated

in the cadre of Deputy Collectors prepare a list

of officers who are fit to be continued in the

Deputy Collectors' cadre and also a list of

officers who are not so fit.

(3) The two lists drawn up by the Committee under

sub-rule (2) shall be submitted to Government

together with all the relevant material

including all the confidential reports about the

officers concerned. Government will, therefore,

in consultation with the Commission, finalise

the two lists.

(4) The officers who are not found fit for

continuing in the cadre of Deputy Collectors

*46* WP DC PROMOTIONS

shall be reverted immediately, and their names

removed from the select list determined by

Government under sub-rule (7) of rule 9.”

“13. Principles according to which seniority of

Deputy Collectors shall be determined:-

(1) The seniority inter-se of the promoted Deputy

Collectors shall be in the same order in which

their names appear in the final select list

determined by Government under sub-rule (7)

of rule 9:

Provided that the seniority of the promoted

Deputy Collectors appointed as a stop- gap

arrangement under the proviso to sub-rule (1)

of rule 10, shall be deemed to be provisional till

his appointment becomes regular under sub-

rule (2) of that rule.

(2) Where the dates of continuous service of the

promoted Deputy Collectors in the cadre of

Deputy Collectors are not chronologically in

conformity with their inter-se seniority as

provided in sub-rule (1) due to the seniority of

any Deputy Collector being revised subsequent

to his promotion as Deputy Collector in order

to remove an injustice done to him in fixing his

seniority in the cadre of Deputy Collectors or

Tahsildars or, as the case may be, Awal

Karkuns. or Naib Tahsildars, or for rectifying

an error made in the fixation of such seniority.

the dates of continuous service as Deputy

Collectors shall be assigned to the promoted

Deputy Collectors in such manner as to be

chronologically in conformity with their order

of seniority (that is to say, the senior officer will

have the earlier date of continuous service than

his junior in the seniority list). The dates so

assigned shall be called the deemed dates" of

continuous service in the Deputy Collectors'

cadre, and shall be taken into consideration for

the purpose of this rule.

(3) The inter-se seniority of the directly recruited

*47* WP DC PROMOTIONS

Deputy Collectors, selected in one batch by the

Commission shall be determined in accordance

with the order of preference recommended for

them by the Commission irrespective of the

dates of their joining the cadre of Deputy

Collectors, subject to the condition that they

join the cadre within one month of their

appointment order or, where an extension of the

period for joining the cadre is sanctioned by

Government, within such extended period; and

if they join such cadre after the expiry of the

period of one month or as the case may be, of

the extended period, then such seniority shall

be determined according to the dates of their

joining the cadre.

(4) Where the dates of appointment of directly

recruited Deputy Collectors are not

chronologically in conformity with their inter-

se seniority as provided in sub-rule (3), such

dates shall be assigned to them in such manner

as to be chronologically in conformity with

their order of seniority. The dates so assigned

shall be called "the deemed dates" of

appointment on probation of the directly

recruited Deputy Collectors and shall be taken

into consideration for the purposes of this rule.

(5) After having determined the seniority of

promoted Deputy Collectors and directly

recruited Deputy Collectors in the manner

provided in sub-rules (2), (3), (4) and (5),

Government shall determine the seniority of all

the Deputy Collectors according to the date of

continuous service in the cadre cf Deputy

Collectors or, as the case may be, according to

the deemed dates assigned to them under sub-

rule (2) or sub-rule (4):

Provided that,

(a) any service rendered in a fortuitous

appointment shall be excluded,

(b) where the dates of continuous service or,

as the case may be, of joining the cadre of

*48* WP DC PROMOTIONS

Deputy Collectors of any two or more officers

are identical, the officer senior in age shall be

considered as senior for the purpose of

determining such seniority.”

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

st

day of

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

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

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

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

possible thereafter, thereby mandating the committee to fulfill

this requirement prior to 31

st

December of each year, considering

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

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

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

promoted to the cadre of the Deputy Collectors and have been

reverted and those whose names are included in the final

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

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

fit for promotion.

22. He, therefore, contends that the two Petitioners

Smt.Chandrakar and Shri Kulkarni, could not have been

*49* WP DC PROMOTIONS

appointed as Deputy Collectors on 09.07.1999, since they

completed five years as Tahasildars on 01.03.1999 and the

committee could not have convened a meeting to consider their

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

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

the next twelve months i.e. from 1

st

September of that year to 31

st

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

have been done as in July,1999.

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

submitting the select list drawn by the committee, to the

Government along with relevant material. The Government is

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

the Commission and determine the final select list of Tahasildars

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

Tahasildars whose names are included in the final select list

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

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

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

24. He then draws our attention to the proviso below

*50* WP DC PROMOTIONS

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

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

list is exhausted and the exigencies of administration require the

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

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

appointment made as a stop-gap arrangement under the proviso

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

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

officer in question is included in the final select list determined

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

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

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

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

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

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

is considered fit to be continued in the cadre of Deputy

Collectors, in the review made under Rule 12.

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

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

the selection committee to consider cases of officers who have

*51* WP DC PROMOTIONS

been provisionally promoted as Deputy Collectors under Rule 10

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

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

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

Committee to prepare one list of officers provisionally appointed

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

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

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

two lists to the Government, together with all the relevant

material. The Government, thereafter, would consult the

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

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

Deputy Collectors, are to be reverted immediately and their

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

9(7).

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

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

their names appear in the final select list determined by the

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

indicates that the seniority of the promoted Deputy Collectors,

*52* WP DC PROMOTIONS

appointed as a stop-gap arrangement under the proviso below

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

appointment becomes regular under Rule 10(2).

27. Shri Sapkal specifically submits in relation to the

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

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

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

points out that the Government has admitted this fact before the

Tribunal and even before this Court.

28. The learned Advocate Shri Katneshwarkar,

representing the Government, when called upon, submits that the

Government has admitted this aspect and there was no

consultation by the Government with the Commission under

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

reiterates that the adhoc appointment of these two Petitioners

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

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

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

*53* WP DC PROMOTIONS

29. Shri Sapkal has referred to the impugned judgment

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

contended that, both the learned members of the Bench have

taken ‘almost contradictory’ views. Though the learned Member

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

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

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

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

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

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

(in brief), as follows:-

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

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

1977 Rules.

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

the Applicants before the Tribunal had entered the cadre of

Deputy Collectors as “promotee Deputy Collectors” (PDC).

They have claimed seniority in the cadre of Deputy Collectors as

per their dates of appointments.

(c)The directly appointed Deputy Collectors (DDC)

*54* WP DC PROMOTIONS

have contended that the initial appointment of the Applicants has

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

Rules in the light of the judgment of the Honourable Supreme

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

Tahasildars.

(d)The State Authorities admitted that the initial

appointment of the Applicants had not been strictly in accordance

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

the process of preparation and publication of the combined

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

period 01.01.1999 to 31.12.2003, by assigning the DDC their due

seniority position and at the same time, regularizing the adhoc

and fortuitous services rendered by the Promotee Deputy

Collectors (PDC).

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

raised in explicit terms by the Respondents individuals (not the

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

before going to the merits of the case.

(f)Admittedly, the Applicants have not placed on

record a copy of the “final combined seniority list” for the cadre

of Tahasildars, which was prepared and published by the

*55* WP DC PROMOTIONS

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

purposes of drawing a select list of Tahasildars for promotion to

the post of Deputy Collectors, by the Selection Committee

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

placed on record the “final select list” prepared by the

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

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

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

against the record since the State Government has filed an

affidavit before the Tribunal stating therein that such a “final

combined seniority list” and the “final select list”, was never

prepared by the Government.

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

Applicants were not eligible for inclusion in the final combined

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

consideration of the selection committee for their promotions to

the cadre of Deputy Collectors. The individual Respondents had

asserted that the Applicants had not completed a minimum of

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

preparation of the combined seniority list.

(h)There is no evidence to show that the names of the

*56* WP DC PROMOTIONS

Applicants in both the proceedings, were eligible to be

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

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

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

admitted in it’s Written Statement.

(i)In the specific view of the learned Member

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

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

cannot be excluded from raising objections in respect of

inclusion of the names of the PDC in the final combined

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

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

only such Tahasildars could be considered for inclusion in the

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

included in the final combined seniority list prepared under Rule

8(4).

(j)The learned Member (Administrative) cast issue

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

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

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

1977?”

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While answering the said issue, it was concluded

that the meeting of the Departmental Promotion Committee

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

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

meeting and the meeting of the Selection Committee has to be

held in the manner prescribed under the 1977 Rules.

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

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

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

Rule 9 of the Rules of 1977?”

This issue was answered by concluding that the

names of these four Applicants had not been included in the

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

names did not appear in the final combined seniority list of

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

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

standi to contest the Transfer Applications.

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

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

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

1977?”

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This was answered by concluding that the provisos

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

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

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

Tahasildar whose name has been included in the combined final

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

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

Applicants were not eligible for appointment even on stop-gap

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

10.

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

Applicants included in select list by approval of Government with

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

the Rules of 1977?”

It was concluded that no select list was prepared

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

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

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

provisions of Rule 12 of the Rules of 1977?”

It was concluded that there was no review of

services of the Applicants as was required to be carried out as per

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Rule 12.

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

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

of the Rules of 1977?”

It was concluded that the impugned seniority list

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

the relevant provisions under the 1977 Rules. A combined

seniority list of DDC and PDC cannot be prepared in accordance

with Rule 13, without following the due procedure for

regularization of the recruitment of the Applicants and similarly

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

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

permits regularization of recruitment which is irregular ab-initio.

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

TA-2 have continued in cadre of Deputy Collectors for

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

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

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

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

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

Deputy Collectors?”

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It was concluded that though the Rules mandate that

the Applicants need to be reverted back to the cadre of

Tahasildar, this may amount to turning the clock backwards

which may lead to multiple administrative complications. On the

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

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

Collectors, may amount to injustice to the DDC. Regularization

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

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

except these four Applicants who stand on a weak ground of

locus-standi.

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

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

claims of four Applicants?”

It was concluded that the four Applicants do not

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

the cadre of Deputy Collectors may not be material for deciding

the Applications filed by the Applicants. However, the

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

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

with the circular issued by the Government, Revenue and Forest

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

31.12.2020, with special reference to creation of posts of the

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

of temporary and permanent posts.

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

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

“On one hand, we have recorded

unambiguous finding that the method which has

been adopted and applied by the respondent no.1

while determining the impugned seniority list is,

strictly speaking, not in precise conformity with

the provisions under “the Rules of 1977”. On the

other hand, we also observe that prima facie, the

applicants do not seem to have locus-standi in the

present matter. The argument put forth by the

learned Special Counsel for private respondent

that the applicants having been promoted in

violation of rules need to be reverted back to their

parent cadre of Tahasildars, can be said to be

administratively impractical in view of the fact of

long service rendered by the applicants. These

two sides of the matter put up in a dilemma as to

how a legally valid, workable resolution to the

problem can be worked out without letting the

matter to stale further. From above analysis, it is

also inferred by me that the issue of seniority

position of the original applicants cannot be

decided by the provisions of the Recruitment

Rules, 1977 and passing an order in the present

matters requires superior learning and ability to

analyze the judgments delivered by Hon’ble High

Courts and Hon’ble Apex Court touching upon

similar aspects of service matters. Therefore, after

putting my views on record as above for

consideration, I may prefer to concur with

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operative part of the order passed by Hon’ble

Justice P.R. Bora, the Vice Chairman.”

31. The learned Senior Advocate Shri Sapkal submits

that though the learned Member (Judicial) and the learned

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

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

no consultation with the Commission, the learned Member

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

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

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

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

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

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

concluded that they cannot be made to suffer the consequences.

He has directed to delete the remark “fortuitous service”, against

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

Member (Administrative) has concluded that these PDC cannot

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

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

Shri Sapkal, therefore, submits that though both the Members of

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the Bench are unanimous as regards the illegality in the final

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

32. In paragraph 23 of his judgment, the learned

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

15.04.1999 and the promotion orders are issued in the month of

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

some deviation from the Recruitment Rules. The said minor

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

unjust and unfair to treat the appointments by way of promotion

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

20 years.

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

inference can be drawn that the inclusion of these Applicants in

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

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

the State has taken a conscious decision that the review meeting

is deemed to have been convened as these four Applicants were

continued as PDC, admittedly without a review meeting.

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

“29.It is true that sub-rule 9 of Rule 7 provides for

consultation with MPSC while determining the

seniority list drawn up by the committee of the

Tahsildars fit to be promoted as Deputy

Collectors. It is also true that there is nothing

on record to show that the MPSC was consulted

by the State before determining the final select

list of Tahsildars under sub-rule 7 of Rule 9.

However, question arises whether such

objection assumes any value and significance

after the period of more than 20 years of the

alleged action. According to us, the delay

caused has rendered the objection raised on

behalf of private respondents redundant.

Moreover, as has been held by Hon’ble

Supreme Court in the case of State of U.P. vs.

Manbodhan Lal Shrivastava (cited supra)

absence of consultation with MPSC can be

treated as irregularity and not illegality. The

said irregularity can be cured as held by

Hon’ble Supreme Court in the case of Ajay

Kumar Singh vs. State of Uttar Pradesh (cited

supra) through prospective consultation. The

promotions granted in favour of the applicants

and inclusion of their names in the select list

determined under Rule 9(7), therefore cannot

be negated on the ground of ‘non-consultation’

with MPSC.”

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

earlier view taken by the Tribunal vide judgment dated

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

wherein, the Tribunal concluded in paragraph 41 that “There is

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no difficulty for us to hold that cadre includes both permanent

and temporary posts.”

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

permanent posts of 514, definitely some temporary posts were

there in existence meaning thereby, that cadre strength at the

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

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

paragraph 50, he concludes that “… Though in the said orders, it

has been stated that the promotions so granted are purely

temporary and further that the applicants may not be entitled to

claim any benefit on the basis of the said temporary promotion

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

under which provision of the Recruitment Rules such promotions

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

promotions granted in favour of the applicants are by way of

stop-gap arrangement or on adhoc basis.”

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

“52. We have reproduced the proviso to Sub-rule (1)

of Rule 10 hereinbefore. We have also noted in

what circumstances the promotions can be

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granted by the Government under the said

provision. In the affidavit in reply submitted on

behalf of respondent no. 1 it is not its case that

at the time when the applicants and other 94

officers in the cadre of Tahsildars were

promoted to the post of Deputy Collector, there

was any administrative exigency. Respondent

no. 1 has also not provided any such

information or has raised any such plea that at

the time when the applicants were promoted, the

final select list prepared under Sub-rule 7 of

Rule 9 was already exhausted. It is also not

disclosed by respondent No. 1 whether

administrative exigency was of the nature that

the vacancies in the cadre of Deputy Collectors

were to be filled up immediately. Respondent

No. 1 has further not provided any information

whether names of the applicants for promoting

them to the post of Deputy Collector under the

said provision were required to be taken from

the final select list of the Tahsildars prepared

under Rule 8. It is also not stated by respondent

No. 1 whether the names of the applicants were

selected from the select list which was awaiting

its determination under Sub-rule 7 of Rule 9 by

the Government. It is undisputed that once

promoted to the post of Deputy Collector, the

applicants did not suffer reversion to any lower

cadre and they have been discharging their

duties uninterruptedly on the promoted post of

Deputy Collector.”

38. Shri Sapkal submits that the learned Member

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

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

promotions as a stop-gap arrangement. He held that Respondent

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

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

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

Applicants, namely, Smt.Samiksha Ramakant Chandrakar, who

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

judgment dated 18.12.2019, more specifically paragraph Nos.25,

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

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

has given a cursory glance to a directly applicable judgment

delivered by the Honourable Supreme Court in Malook Singh

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

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

case. Similarly, three judgments of the Supreme Court, viz. (i)

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

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

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

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

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

necessary to elaborately discuss each of the said judgment, for

the reason that in all these judgments the principle laid down is

*68* WP DC PROMOTIONS

same that the ‘services rendered on adhoc basis cannot be

considered for the purpose of reckoning seniority’.” He,

therefore, submits that the conclusions drawn in paragraph 58,

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

Applicants was not in accordance with the Rules of Recruitment,

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

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

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

perverse conclusion.

40. Shri Sapkal has expressed astonishment that though

the Tribunal has concluded that the four Applicants have no locus

standi to file the Applications and the said Applications need not

be entertained, it has effectively granted relief and directions,

without quashing the final seniority list dated 31.12.2020. Once

the Tribunal concludes that the Applicants had no locus standi to

assail the impugned notification, it was not necessary for the

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

Applicants.

*69* WP DC PROMOTIONS

Submissions of the learned Senior Advocate Shri Apte

41. Shri Apte, the learned Senior Advocate has appeared

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

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

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

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

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

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

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

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

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

stop-gap appointment.

42. Shri Apte has relied upon Keshav Chandra Joshi

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

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

which read as under:-

“18. A close reading of the fasciculus of rules clearly

posits that recruitment as Assistant Conservator

of Forest shall be from two sources, namely, by

direct recruitment and by promotion of permanent

Forest Rangers of the Subordinate Forest Service.

Qualifications have been provided for

recruitment. The direct recruit, on selection by the

Public Service Commission is required to undergo

training for two years in the college as a part of

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the selection and on obtaining diploma, the

Governor is to appoint him to the substantive post

of Assistant Conservator of Forest on probation.

The service of the direct recruits is to be counted

from the date of discharging the duties of the post

and on successful completion of the probation

within two years or extended period and passing

the tests and on confirmation thereof by the

Governor, he becomes a member of the service in

substantive capacity. Similarly the promotees

shall be recruited in accordance with Rule 5(b)

and the procedure prescribed in Appendix 'B'. The

Chief Conservator of Forest would draw up the

list of permanent Forest Range Officers eligible

for promotion strictly on the basis of merit. The

Committee headed by the member of the Public

Service Commission would interview them and

prepare the list of the selected candidates on the

basis of merit and ability, which would be

forwarded to the government. On receipt thereof

the Governor would appoint the Forest Range

Officers as Assistant Conservator of Forest on

probation in terms of the ratio prescribed in Rule

6. The selection shall be based on merit and

ability. The seniority of Forest Rangers inter se is

to be considered only where the merit and ability

as Forest Rangers are approximately equal. Thus

even the juniormost meritorious Forest Range

Officer would steal a march over his seniors and

would earn his seniority as Assistant Conservator

of Forest. The promotee shall also be on

probation for a period of two years and shall also

have to pass the prescribed tests unless exempted.

On successful completion and the Governor after

satisfying himself that the appointee is also

otherwise fit to be confirmed, makes an order.

Then only the promotee becomes a regular

member of the service in a substantive capacity.

19. The heart of the controversy lies in the question as

to when a person is appointed to a post in the

*71* WP DC PROMOTIONS

service in a substantive capacity within the

meaning of Rule 3(h) read with Rules 5 and 24 of

the Rules. Under Rule 5 read with Rule 3(h) a

member of the service means a person, be it direct

recruit under Rule 5(a) or promotee under Rule

5(b), appointed in a substantive capacity to the

service as per the provisions of the rules. In order

to become a member of the service he/they must

satisfy two conditions, namely, the appointment

must be in substantive capacity and the

appointment has to be to the post in the service

according to rules and within the quota to a

substantive vacancy. There exists marked

distinction between appointment in a substantive

capacity and appointment to the substantive post.

Therefore, the membership to the service must be

preceded by an order of appointment to the post

validly made by the Governor. Then only he/they

become member/members of the service. Any

other construction would be violation of the

Rules.

20. The narrative of facts and attendant

circumstances would indicate that the

Government at no point of time abandoned direct

recruitment under Rule 5(a), nor omitted to fix

inter se seniority. No blame in this regard should

lie at the doors of the government as due to

recourse to judicial process this situation crept

up. It is not the case of the promotees that

Government held out any promise that the

promotees would be regularised from the

respective dates of promotion. On the other hand

the government's positive act of adjusting the

promotees in excess of the quota under Rule 6 in

the vacancies that arose in the succeeding years

belie such a situation.

21. From the above background two questions would

emerge: (i) as to when promotees become

members of the cadre of Assistant Conservators in

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a substantive capacity in accordance with the

rules, and (ii) whether the entire length of service

from the date of initial appointments should be

counted towards their seniority. The prerequisite

of the right to inclusion in a common list of

seniority is that all those who claim that right

must broadly bear the same characteristics.

Fortuitous circumstances of their holding the

grade post carrying the same designation or scale

of pay or discharging the same duty would not

justify the conclusion that they belong to the same

cadre. Due to exigencies of service temporary

promotions against substantive vacancies were

made. It is undoubted that preceding their

promotion, an ad hoc committee had considered

the cases of the promotees. Admittedly seniority

subject to rejection of unfit was the criteria,

followed in the selection. The selection was,

therefore, in defiance of and de hors Rule 5(b)

read with Appendix 'B'.

22. In a democracy governed by rule of law, it is

necessary for the appropriate governance of the

country that the political executive should have

the support of an efficient bureaucracy. Our

Constitution enjoins upon the executive and

charges the legislature to lay down the policy of

administration in the light of the directive

principles. The executive should implement them

to establish the contemplated egalitarian social

order envisaged in the preamble of the

Constitution.

23. It is seen that the appointments of the promotees

were made in batches yearwise. The rule

postulates that appointment shall be strictly as

per merit after interview arranged in order by the

Public Service Commission. In the same year

when the appointments are made to the

substantive vacancies from both the sources, the

promotees shall rank senior to the direct recruits

*73* WP DC PROMOTIONS

in accordance with the quota prescribed under

Rule 6. The rules provide the power to appoint

Forest Rangers from Subordinate Service, due to

administrative exigencies to officiate or to act

temporarily as Assistant Conservators of Forest.

The rule itself, thus, recognises the distinction

between substantive appointment and

temporary/officiating appointment. The procedure

to prepare the list to man the officiating or

temporary vacancies is on the basis of seniority

subject to rejection of the unfit. The question of

considering relative merit and ability of the

promotees inter se, then would not arise. Thereby,

it is clear that the list prepared by the Chief

Conservator of Forest for appointment of the

Forest Rangers to officiate in the posts of

Assistant Conservator of Forest on ad hoc or

temporary basis is only fortuitous due to non-

availability of the direct recruits as stop gap

arrangement. Employees appointed purely on ad

hoc or officiating basis due to administrative

exigencies, even though continued for a long

spell, do not become the members of the service

unless the Governor appoints them in accordance

with the rules and so they are not entitled to count

the entire length of their continuous officiating or

fortuitous service towards their seniority.

24. It is notorious that confirmation of an employee in

a substantive post would take place long years

after the retirement. An employee is entitled to be

considered for promotion on regular basis to a

higher post if he/she is an approved probationer

in the substantive lower post. An officer appointed

by promotion in accordance with Rules and within

quota and on declaration of probation is entitled

to reckon his seniority from the date of promotion

and the entire length of service, though initially

temporary, shall be counted for seniority. Ad hoc

or fortuitous appointments on a temporary or stop

gap basis cannot be taken into account for the

*74* WP DC PROMOTIONS

purpose of seniority, even if the appointee was

subsequently qualified to hold the post on a

regular basis. To give benefit of such service

would be contrary to equality enshrined in Article

14 read with Article 16(1) of the Constitution as

unequals would be treated as equals. When

promotion is outside the quota, the seniority

would be reckoned from the date of the vacancy

within the quota, rendering the previous service

fortuitous. The previous promotion would be

regular only from the date of the vacancy within

the quota and seniority shall be counted from that

date and not from the date of his earlier

promotion or subsequent confirmation. In order to

do justice to the promotees it would not be proper

to do injustice to the direct recruits. The rule of

quota being a statutory one it must be strictly

implemented and it is impermissible for the

authorities concerned to deviate from the rule due

to administrative exigencies or expediency. The

result of pushing down the promotees appointed in

excess of the quota may work out hardship but it

is unavoidable and any construction otherwise

would be illegal, nullifying the force of statutory

rules and would offend Articles 14 and 16(1).

Therefore, the rules must be carefully applied in

such a manner as not to violate the rules or

equality assured under Article 14 of the

Constitution. This Court interpreted that equity is

an integral part of Article 14. So every attempt

would be made to minimise, as far as possible,

inequity. Disparity is inherent in the system of

working out integration of the employees drawn

from different sources, who have legitimate

aspiration to reach higher echelons of service. A

feeling of hardship to one, or heart burning to

either would be avoided. At the same time equality

is accorded to all the employees.

25. In Direct Recruits case the Constitution Bench of

this Court in which one of us (K. Ramaswamy, J.)

*75* WP DC PROMOTIONS

was a member, in Propositions 'A' and 'B' in

paragraph 47 at page 475 stated:

"(A) Once an incumbent is appointed to a

post according to rule, his seniority has to be

counted from the date of his appointment and not

according to the date of his confirmation. The

corollary of the above rule is that where the initial

appointment is only ad hoc and not according to

rules and made as stop gap arrangement, the

officiation in such post cannot be taken into

account for considering the seniority.

(B) If the initial appointment is not made by

following the procedure laid down by the rules but

the appointee continues in the post

uninterruptedly till the regularisation of his

service in accordance with the rules, the period of

officiating service will be counted."

Mr Mukhoty and Mr Garg repeatedly asked us to

apply the ratio in the cases of Narender Chadha',

Baleshwar Dass' and Chauhan contending that

the promotees were appointed to the same post;

are discharging the same duties; drawing the

same salary, therefore, they should be deemed to

be given promotion from their initial dates of

appointment, We express our inability to travel

beyond the ratio in Direct Recruits case. While

reiterating insistence upon adherence to the rule

that seniority between direct recruits and the

promotees has to be from the respective dates of

appointment, this Court noticed that in certain

cases, government by deliberate disregard of the

rules promotions were made and allowed the

promotees to continue for well over 15 to 20 years

without reversion and thereafter seniority is

sought to be fixed from the date of ad hoc

appointment. In order to obviate unjust and

inequitious results, this Court was constrained to

evolve "rule of deemed relaxation of the relevant

rules" and directed to regularise the services

*76* WP DC PROMOTIONS

giving the entire length of temporary service from

the date of initial appointment for seniority. To lay

down binding precedent the cases were referred to

a Constitution Bench. In the Direct Recruits case,

this Court has laid down clear propositions of

general application in Items A to K. Therefore, to

keep the law clear and certain and to avoid any

slant, we are of the considered view that it is not

expedient to hark back into the past precedents

and we prefer to adhere to the ratio laid down in

the Direct Recruits case.

26. As stated, the counsel for the promotees placed

strong reliance on proposition 'B' while the

counsel for the Direct Recruits relied on

proposition 'A'. The controversy is as to which of

the propositions would apply to the facts of this

case. The proposition 'A' lays down that once an

incumbent is appointed to a post according to

rules, his seniority has to be counted from the date

of his appointment and not according to the date

of his confirmation. The latter part thereof

amplifies that where the initial appointment is

only ad hoc and not according to rules and is

made as a stop gap arrangement, the period of

officiation in such post cannot be taken into

account for reckoning seniority. The quintessence

of the propositions is that the appointment to a

post must be according to rules and not by way of

ad hoc or stop gap arrangement made due to

administrative exigencies. If the initial

appointment thus made was de hors the rules, the

entire length of such service cannot be counted for

seniority. In other words the appointee would

become a member of the service in the substantive

capacity from the date of his appointment only if

the appointment was made according to rules and

seniority would be counted only from that date.

Propositions 'A' and 'B' cover different aspects of

one situation. One must discern the difference

critically. Proposition 'B' must, therefore, be read

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along with para 13 of the judgment wherein the

ratio decidendi of Narender Chadha' was held to

have considerable force. The latter postulated that

if the initial appointment to a substantive post or

vacancy was made deliberately, in disregard of

the rule and allowed the incumbent to continue on

the post for well over 15 to 20 years without

reversion and till the date of regularisation of the

service in accordance with the rules, the period of

officiating service has to be counted towards

seniority. This Court in Narender Chadha case?

was cognizant of the fact that the rules empower

the government to relax the rule of appointment.

Without reading paragraph 13 and Proposition 'B'

and Narender Chadha' ratio together the true

import of the proposition would not be

appreciated. We would deal with the exercise of

power of relaxing the rule later. After giving

anxious consideration, we are of the view that the

latter half of Proposition 'A' would apply to the

facts of the case and the rule laid down in that

half is to be followed. If the concerned rules

provide the procedure to fix inter se seniority

between direct recruits and promotees, the

seniority has to be determined in that manner.

27. Realising that applicability of Proposition 'B' to

the facts would run into rough weather the

counsel for the promotees attempted to anchor it

by reiterating that as on date the Public Service

Commission found the promotees eligible for

confirmation as per rules, the entire length of

service would be counted for their seniority. We

express our inability to accede to the contention.

It is seen that appointment of the promotees as

Assistant Conservators of Forest was not in

accordance with Rule 5(b) read with Appendix 'B'

of the Rules. Admittedly the promotions were on

ad hoc basis pending direct recruitment and are in

excess of the quota prescribed under Rule 6. By

no strength of imagination it could be said that

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the promotions were made to a substantive post in

accordance with the Rules. Therefore, the

promotees do not hold the post in substantive

capacity.

28. Undoubtedly when there was dearth of direct

recruits the promotees discharged the duties

ranging between 5 to 12 years prior to filing of

the writ petitions. The promotees generally may

get one or two chances of promotion to cadre

posts in higher echelons of the Indian Forest

Service. Reckoning continuous officiation of ad

hoc promotion would enable the less privileged to

excel their latent capabilities in the cadre post.”

“34. Accordingly we have no hesitation to hold that the

promotees have admittedly been appointed on ad

hoc basis as a stop gap arrangement, though in

substantive posts, and till the regular recruits are

appointed in accordance with the rules. Their

appointments are de hors the rules and until they

are appointed by the Governor according to rules,

they do not become the members of the service in

a substantive capacity. Continuous length of ad

hoc service from the date of initial appointment

cannot be counted towards seniority. The

Governor shall have to make recruitment by

promotion to substantive vacancies in the posts of

Assistant Conservator of Forest, if not already

made, in accordance with Rule 5(b) read with

Appendix 'B' and Rule 6. Their seniority shall be

counted only from the respective dates of

appointment to the substantive posts in their

quota under Rule 6 as per the rules. The direct

recruits having been appointed in accordance

with Rule 5(a) read with Appendix 'A', their

seniority shall be counted from the date of their

dis- charging the duties of the post of Assistant

Conservator of Forest and the seniority of the

direct recruits also shall accordingly be fixed. The

inter se seniority of the direct recruits and

*79* WP DC PROMOTIONS

promotees shall be determined in accordance with

Rules 5, 6 and the Rule 24 in the light of the law

declared in the judgment. All the employees are

entitled to all consequential benefits. On account

of the pendency of judicial proceedings, if any of

the employees became barred by age for

consideration for promotion to cadre posts, the

appropriate governments would do well to

suitability relax the rules and do justice to the

eligible conditions.”

(Emphasis supplied)

43. He, therefore, submits that the Tribunal has

unanimously concluded that the four Applicants did not have any

locus standi to challenge the impugned final list dated

31.12.2020 and the final seniority list dated 03.03.2018. He

further submits that these four Applicants were in excess of the

quota and, therefore, they would be eligible for regularization

from the dates a permanent vacancy arose within their quota.

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

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

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

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

have been promoted as a Deputy Collector since two Deputy

Collectors cannot occupy one post.

*80* WP DC PROMOTIONS

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

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

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

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

Tahasildars, notwithstanding the long times they have spent as

PDC. He relies upon Maharashtra Vikrikar Karmachari

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

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

follows:-

“4.For the first time, the State Government in

exercise of powers conferred by provisions of

Article 309 of the Constitution of India, framed

the rules called Maharashtra Sales Tax

Inspectors Recruitment Rules, 1971 (for short

'the Rules 1971') which came into force w.e.f.

September 6, 1971. Suffice is to refer to Rule 2

thereof. It deals with the appointments to the

posts of Sales Tax Inspectors from two sources,

namely direct recruits and by promotion in the

ratio of 60:40 as far as practicable. Rule 2

reads thus :-

“2. Appointment to the posts of Sales

Tax Inspectors shall be made either :

(a) by promotion of suitable clerks in

the Sales Tax Department, who have passed at

least Part I of the Departmental Examination

prescribed for the Sales Tax Inspector or for the

Higher Clerical staff in the Sales Tax

Department or who have been exempted from

passing the Departmental Examination

prescribed for Sales Tax Inspectors or for the

Higher Clerical Staff:

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Provided that the Clerks who have

passed Part I of the Departmental Examination

for Sales Tax Inspector and who have been

promoted to the posts of Sales Tax Inspectors

are required to pass Part II of the Departmental

Examination for Sales Tax Inspector also,

according to the rules made in that behalf,

failing which they shall be liable to be reverted.

The ratio of persons appointed by

promotion as provided above and by

nomination as provided below shall, as far as

practicable, be 40:60. The ratio shall not apply

to temporary vacancies not exceeding one year

which may be filled by promotion. Such

promotions shall, however, be treated as

stopgap promotions and will not entitle the

promotees to seniority by virtue thereof.

Note : In the period from the date on

which these rules come into force to the date on

which the results of the first Departmental

Examination of Sales Tax Inspectors under the

unified Departmental Examination Rules are

declared, promotions made to the post of Sales

Tax Inspector shall be purely provisional and

persons so promoted shall be required to pass

the prescribed Departmental Examination

within the prescribed period from the date the

Departmental Examination rules come into

force, failing which they shall be liable to be

reverted :

OR

(b) by nomination, on the result of a

competitive examination held by the

Maharashtra Public Service Commission, from

among candidates who -

(i) possess a degree in Arts, Science,

Commerce, Law or Agriculture of a recognised

University or any recognised equivalent

qualifications;

and

(ii) have attained the age of 18 years

*82* WP DC PROMOTIONS

and have not attained the age of 24 years, on

the first day of the month immediately following

the month in which the posts are advertised by

the Commission;

Provided that the upper age limit shall be

relaxed upto 30 years in the case of persons

serving in the Sales Tax Department.”

Thereafter, the State of Maharashtra in exercise

of powers conferred under Article 309 of the

Constitution of India framed the Rules for

regulating the seniority amongst government

employees. The said Rules were called

Maharashtra Civil Services (Regulation of

Seniority) Rules, 1982 (for short 'Rules 1982').

These rules came into force w.e.f. June 21,

1982, Rule 4 is relevant in the present

controversy and it reads thus :

"4. General Principles of Seniority :

(1) Subject to the other provisions of these

rules, the seniority of a Government servant in

any post, cadre or service shall ordinarily be

determined on the length of his continuous

service there:

Provided that, for the purpose of

computing such service, any period of absence

from the post, cadre or service due to leave,

deputation for training or otherwise or on

foreign service or temporary officiation in any

other post shall be taken into account, if the

competent authority certified that the

Government servant concerned would have

continued in the said post cadre or service

during such period, had he not proceeded on

leave or deputation Or been appointed

temporarily to such other post:

Provided further that, the service, if any,

rendered by him as a result of a fortuitous

appointment shall be excluded in computing the

length of service and for the purposes of

seniority he shall be deemed to have been

*83* WP DC PROMOTIONS

appointed to the post in the cadre of service on

the date on which his regular appointment is

made in accordance with the provisions of the

relevant recruitment rules.

(2) Notwithstanding anything contained in

sub rule (1) :

(a) the inter se seniority of direct

recruits selected in one batch for appointment

to any post, cadre or service, shall be

determined according to their ranks in the

order of preference arranged by the

Commission, Selection Board or in the case of

recruitment by nomination directly made by the

competent authority, the said authority, as the

case may be, if the appointment is taken up by

the person recruited within thirty days from the

date of issue of the order of appointment or

within such extended period as the competent

authority may in its discretion allow.

(b) the inter se seniority of

Government servants promoted from a Select

List shall be in the same order in which their

names appear in such Select List. If the Select

List is prepared in two parts, the first part,

containing the names of those selected

unconditionally and the second part containing

the names of those selected provisionally. All

persons included in the first part shall rank

above those included in all second part:

Provided that, if the order in which the

names are arranged in the Select List is

changed following a subsequent review of it,

the seniority of the Government servants

involved shall be re-arranged and determined

afresh in conformity with their revised ranks.

(c) the seniority of a transferred

Government servant vis-a-vis the Government

servant in the posts, cadre or service to which

he is transferred shall be determined by the

competent authority with due regard to the

*84* WP DC PROMOTIONS

class and pay scale of the post, cadre or service

from which he is transferred, the length of his

service therein and the circumstances leading

to his transfer.

(3) Where the dates of appointment in posts,

cadre or service of any two or more persons

determined after assigning the deemed dates, if

necessary, are identical the person senior in

age shall be considered as senior for the

purpose of deter-mining the seniority."

Rule 3 contains several definitions and we are

concerned with four definitions.

“3(d)"Deemed date" means the date

assigned to a Government servant in

accordance with the provisions of Rub 5;

3(e) "Direct recruit" means, in relation to

any post, cadre or service, a person appointed

by nomination thereto;

3(f) "fortuitous appointment' means a

temporary appointment made pending a

regular appointment in accordance with the

provisions of the relevant recruitment rules;

3(h) “Promotee" means, In relation to

any post, cadre or service, a Government

servant appointed thereto by promotion from a

lower post, cadre or service;”

“26. Lastly, it was contended on behalf of the

appellants that some of :the appellants have put

in more than 17 years of service when few of

the direct recruits were either schooling and/or

not born in the cadre. If the appellants were to

be pushed down, it will cause a great hardship

to them. We are unable to subscribe to this

contention because if there is patent violation

of the quota rule, the result must follow and the

appellants who remained in the office for all

these years cannot take the advantage of this

situation. This submission is, therefore, devoid

*85* WP DC PROMOTIONS

of any substance.”

(Emphasis supplied)

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

Conservator of Forests, Solapur (Maharashtra) and others

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

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

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

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

“2.Mr. M.S.L. Patil, party appearing-in-person has

raised five contentions, namely, that the

combined seniority as per the rules was to be

maintained from the date of the regular

appointment or promotion. As per the rules, the

petitioner came to be appointed prior to the

appointment of the direct recruits. Therefore,

the entire length of service rendered by him as

an Assistant Conservator of Forests requires to

be tagged for maintaining his seniority. If so

considered, he would be senior to the direct

recruits. Therefore, they cannot scale march

over the promotees. It is also contended that the

direct recruits unfilled quota cannot be carried

forward. He places reliance on the judgment of

this court in Indra Sawhney v. Union of India

[1992 Supp. (3) 217] known as Mandal's case.

They were not recruited according to rules. He

also contended that he was not made a party to

the earlier proceedings which culminated in the

aforesaid judgment. Therefore, the decision

passed by this Court is violative of the

principles of natural justice. He also contended

that the third respondent in this case is a direct

recruit and has concealed several material

*86* WP DC PROMOTIONS

facts which led to the open judgment by this

Court. Shri Raju Ramachandran, learned

senior counsel appearing for some of the

promotees, contended that in the earlier case,

this Court in paragraph 9 of the judgment has

specifically stated the premises that specific

material has not been placed on record of the

appointment of the promotees, viz., whether

their promotions were fortuitous or not. The

quota rules was broken down between the

direct recruits and the promotees. Even under

Rules, 1982, the second proviso thereto gives a

power to the Government to certify that the

direct recruitment could not be made. In view of

the stand taken by the Government in the

counter- affidavit filed in the Tribunal that the

so-called rule of quota has been broken down,

it would amount to certification that it did not

make regular recruitment; as a result,

promotees gain seniority which has to be

counted from the date of the regular promotion.

Thereby, they would be senior to the direct

recruits.

3. In view of these contentions, the question that

arises is whether the judgment of this Court has

been vitiated by any error of law warranting

reconsideration at the behest of some of the

persons who are not parties to the earlier

proceedings? It is undoubted that they were not

parties to their earlier petition but this Court

has laid down the general principle of law, and,

therefore, whether or not they are parties to the

earlier proceedings, the general principle of

law stands applicable to every person

irrespective of the fact whether he is party to

the earlier order or not. It is not in dispute that

there is a ratio prescribed for the direct recruits

and the promotees, namely 1:1. In other words,

for every 100 vacancies the promotees are

entitled only to 50 vacancies. It is not in dispute

*87* WP DC PROMOTIONS

that these promotees have been promoted in

excess of the quota. Under those circumstances,

it is settled law that the promotees who are

appointed in excess of the quota cannot get the

be fitted into seniority according to the rules.

As to what is the date on which the promotees

or the direct recruits came to be appointed into

the respective quota is a matter of record and

the seniority is required to be determined

according to the law laid down by this Court.

In several judgments of this Court, it is now

firmly settled that mere by because of the fact

that State Government could not make direct

recruitment due to its inaction, it cannot be said

that the rule of quota has been broken down.

Therefore, as and when the direct recruitment

has been made, the direct recruits are entitled

to placement of their seniority into the

vacancies reserved for them as per the ratio

and the seniority determined as per the rules

within the respective quota. Similarly, when the

promotees came to be promoted in accordance

with the rules in excess of their quota, this

Court stated in K.C. Joshi and others v. Union

of India and others, [AIR 1991 SC 284] though

a Bench of three Hon'ble Judges, that the

promotees in excess of the quota cannot be

given seniority from the respective dates of

their promotions. They have to be considered

only from the respective dates on which their

respective quota is available. The same

decision was followed and reiterated in A.N.

Sehgal vs. Raje Rama [1992 Supp. (1) SCC

304]. Under these circumstances, we do not

think that the judgment of this Court is vitiated

by any error of law for reconsideration. Even

Rule 4, second proviso has no application to

the facts in this case. Rule 4 contemplates the

seniority and second proviso postulates that

when the recruitment could not be made, they

have to certify the ground on which it could not

*88* WP DC PROMOTIONS

be made and thereafter the seniority has to be

determined. In view of the law now laid down,

the certification of the non-making of direct

recruitment according to rules, bears no

relevance. The question of carry forward in this

case, as laid down in Mandal's case, has no

application for the reason that the recruitment

in proportion is one the methods of recruitment

and is required to be made. The balance posts

are required to be recruited by subsequent

publication and the promotees have no right to

get into the post reserved for the direct recruits.

Mandal's case concerns carry forward posts

reserved under Article 16(4) for Scheduled

Castes, Scheduled Tribes and Other Backward

Classes which has nothing to do in this case.

Though some of the grounds will be available

to argue the case on merits, that is no ground to

reopen the settled law laid by this Court in

earlier decision.”

46. He then relies upon a judgment delivered by the

Tribunal on 17.04.2008 in Original Application No.526/2004

(Rajendra Nimbalkar and others vs. The State of

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

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

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

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

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

to fortuitous service. He has further placed reliance upon clauses

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

*89* WP DC PROMOTIONS

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

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

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

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

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

“3.The seniority list of the Deputy Collectors for

the period 01.01.2004 onwards shall be

prepared having regard to the observations

made in the present order and strictly in

observance of the Recruitment Rules of 1977,

within the period of next 6 months from the date

of this order.”

48. Shri Apte has then referred to the Government

Resolution dated 31.12.2020 by which, the cadre strength of the

Deputy Collectors was fixed at 514 from 1999 onwards. This

strength was maintained upto 2012. The impugned seniority list

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

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

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

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

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

the Tribunal disposed off the applications, it could not have

*90* WP DC PROMOTIONS

granted any relief indirectly to the Applicants which they could

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

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

word ‘fortuitous’, is unsustainable.

Submissions of the Senior Advocate Shri Kumbhakoni

49. The learned Senior Advocate representing the DDC

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

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

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

Tribunal is a “fractured view”. The Tribunal Members have

concurred only on two grounds, firstly that the four Applicants

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

any cause of action. Despite having concluded that the four

Applicants could not have filed the proceedings, the Tribunal

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

uncalled for and was not expected from the Tribunal.

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

Tribunal did not interfere with the impugned final seniority list

dated 31.12.2020, which covers the period from 01.01.1999 till

*91* WP DC PROMOTIONS

31.12.2003. The earlier seniority list dated 31.12.1998 has

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

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

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

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

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

51. On the aspect of whether, the impugned judgment

could be termed as a “judgment”, Shri Kumbhakoni has relied

upon the view taken by the Honourable Supreme Court in

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

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

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

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

ratio or conclusive decision. It would be apposite to reproduce

paragraph Nos.32 to 37 hereunder:-

“32.Having gone through the impugned judgment

and order passed by the High Court releasing

the accused on bail pending appeal, we are at

pains to note that the order granting bail to the

accused pending appeal lacks total clarity on

which part of the judgment and order can be

said to be submissions and which part can be

said to be the findings/reasonings. It does not

even reflect the submissions on behalf of the

*92* WP DC PROMOTIONS

Public Prosecutor opposing the bail pending

appeal. A detailed counter affidavit was filed

on behalf of the State opposing the bail pending

appeal which has not been even referred to by

the High Court. The manner in which the High

Court has disposed of the application under

Section 389 Cr.P.C. and has disposed of the

application for bail pending appeal cannot be

approved. It is very unfortunate that by this

judgment, we are required to observe the

importance of judgment; purpose of judgment

and what should be contained in the judgment.

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

“Judgment” means a judicial opinion which

tells the story of the case; what the case is

about; how the court is resolving the case and

why. “Judgment” is defined as any decision

given by a court on a question or questions or

issue between the parties to a proceeding

properly before court. It is also defined as the

decision or the sentence of a court in a legal

proceeding along with the reasoning of a judge

which leads him to his decision. The term

“judgment” is loosely used as judicial opinion

or decision. Roslyn Atkinson, J., Supreme Court

of Queensland, in her speech once stated that

there are four purposes for any judgment that is

written:

i) to spell out judges own thoughts;

ii) to explain your decision to the parties;

iii) to communicate the reasons for the

decision to the public; and

iv) to provide reasons for an appeal court to

consider

34.It is not adequate that a decision is accurate, it

must also be reasonable, logical and easily

comprehensible. The judicial opinion is to be

written in such a way that it elucidates in a

convincing manner and proves the fact that the

verdict is righteous and judicious. What the

*93* WP DC PROMOTIONS

court says, and how it says it, is equally

important as what the court decides.

35.Every judgment contains four basic elements

and they are (i) statement of material (relevant)

facts, (ii) legal issues or questions, (iii)

deliberation to reach at decision and (iv) the

ratio or conclusive decision. A judgment should

be coherent, systematic and logically

organised. It should enable the reader to trace

the fact to a logical conclusion on the basis of

legal principles. It is pertinent to examine the

important elements in a judgment in order to

fully understand the art of reading a judgment.

In the Path of Law, Holmes J. has stressed the

insentient factors that persuade a judge. A

judgment has to formulate findings of fact, it

has to decide what the relevant principles of

law are, and it has to apply those legal

principles to the facts. The important elements

of a judgment are:

i) Caption

ii) Case number and citation

iii) Facts

iv) Issues

v) Summary of arguments by both the parties

vi) Application of law

vii) Final conclusive verdict

36.The judgment replicates the individuality of the

judge and therefore it is indispensable that it

should be written with care and caution. The

reasoning in the judgment should be intelligible

and logical. Clarity and precision should be the

goal. All conclusions should be supported by

reasons duly recorded. The findings and

directions should be precise and specific.

Writing judgments is an art, though it involves

skillful application of law and logic. We are

conscious of the fact that the judges may be

overburdened with the pending cases and the

arrears, but at the same time, quality can never

*94* WP DC PROMOTIONS

be sacrificed for quantity. Unless judgment is

not in a precise manner, it would not have a

sweeping impact. There are some judgments

that eventually get overruled because of lack of

clarity. Therefore, whenever a judgment is

written, it should have clarity on facts; on

submissions made on behalf of the rival

parties; discussion on law points and thereafter

reasoning and thereafter the ultimate

conclusion and the findings and thereafter the

operative portion of the order. There must be a

clarity on the final relief granted. A party to

the  litigation must know what actually he has

got by way of final relief. The aforesaid aspects

are to be borne in mind while writing the

judgment, which would reduce the burden of

the appellate court too. We have come across

many judgments which lack clarity on facts,

reasoning and the findings and many a times it

is very difficult to appreciate what the learned

judge wants to convey through the judgment

and because of that, matters are required to be

remanded for fresh consideration. Therefore, it

is desirable that the judgment should have a

clarity, both on facts and law and on

submissions, findings, reasonings and the

ultimate relief granted.

37.If we consider the impugned order passed by

the High Court, as observed hereinabove, we

find that there is a total lack of clarity on the

submissions, which part of the order is

submission, which part of the order is the

finding and/or reasoning. As observed

hereinabove, even the submissions on behalf of

the Public Prosecutor have not been noted and

referred to, though a detailed counter affidavit

was filed by the State opposing the bail

applications. We do not approve the manner in

which the High Court has disposed of the

application for bail pending appeal.”

*95* WP DC PROMOTIONS

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

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

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

matter as if this Court is exercising appellate jurisdiction.

According to him, the impugned judgment is impossible to be

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

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

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

Writ jurisdiction, cannot deal with a matter as an Appellate

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

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

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

matter would amount to performing the obligation of a third

member, by the High Court.

53. He refers to Section 26 of the Administrative

Tribunals Act, 1985, which reads thus:-

“26.Decision to be by majority.—If the Members of

a Bench differ in opinion on any point, the

point shall be decided according to the opinion

of the majority, if there is a majority, but if the

Members are equally divided, they shall state

the point or points on which they differ, and

make a reference to the Chairman who shall

*96* WP DC PROMOTIONS

either hear the point or points himself or refer

the case for hearing on such point or points by

one or more of the other Members of the

Tribunal and such point or points shall be

decided according to the opinion of the

majority of the Members of the Tribunal who

have heard the case, including those who first

heard it.”

54. He submits that when one member draws a specific

conclusion as regards the important aspects in the case and the

Member (Administrative) authors a separate portion of the

judgment, his concluding approval paragraph can only be termed

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

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

directions which were sought, have not been granted by the

Tribunal and such directions which were never sought, have been

granted. He contends that the learned Judicial Member has taken

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

by the Member (Administrative).

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

delivered by the Honourable Supreme Court in J. Balaji Singh

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

as under:-

*97* WP DC PROMOTIONS

“16.In our considered view, the only error which the

first Appellate Court committed was that it went

on to record the findings on merits. In our view,

it was not necessary to do so while passing the

order of remand. The reason is that once the

first Appellate Court formed an opinion to

remand the case, it was required to give

reasons in support of the remand order as to

why the remand is called for in the case.

Indeed, the remand was made only to enable

the Trial Court to decide the case on merits.

Therefore, there was no need to discuss much

less record findings on several issues on merits.

It was totally uncalled for.

17.So far as the impugned order is concerned, the

High Court, in our view, committed

jurisdictional error when it also again

examined the case on merits and set aside the

judgment of the first Appellate Court and

restored the judgment of the Trial Court. The

High Court, in our opinion, should not have

done this for the simple reason that it was only

examining the legality of the remand order in

an appeal filed under Order 43 Rule 1(u) of the

Code. Indeed, once the High Court came to a

conclusion that the remand order was bad in

law then it could only remand the case to the

first Appellate Court with a direction to decide

the first appeal on merits.

18.The High Court failed to see that when the first

Appellate Court itself did not decide the appeal

on merits and considered it proper to remand

the case to the Trial Court, a fortiori, the High

Court had no jurisdiction to decide the appeal

on merits. Moreover, Order 43 Rule 1(u)

confers limited power on the High Court to

examine only the legality and correctness of the

remand order of the first Appellate Court but

not beyond that. In other words, the High Court

should have seen that Order 43 Rule 1(u) gives

a limited power to examine the issue relating to

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legality of remand order, as is clear from Order

43 Rule 1(u) which reads thus:-

“1(u) an order under rule 23 or rule 23A

of Order XLI remanding a case, where an

appeal would lie from the decree of the

Appellate Court”

19.It is well settled law that the jurisdiction to

decide the appeal on merits can be exercised by

the Appellate Court only when the appeal is

filed under Section 96 or 100 of the Code

against the decree. Such was not the case

here.”

[Emphasis supplied]

56. Shri Kumbhakoni has then relied upon a judgment

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

Writ Petition No.3077/2020, Vijaysingh Gajrajsingh Chauhan

vs. Governor of Maharashtra and others, AIR Online 2021

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

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

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

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

Petitioner being affected. Reliance was placed on Kusum Ingots

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

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

others, 2018 SCC Online Bombay 6400 and United Forum

and others vs. The Union of India and others, 2018 SCC

*99* WP DC PROMOTIONS

Online Bombay 2221, to buttress his contention that the Court

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

refrain from taking up an issue which is purely academic in

nature.

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

which read thus:-

“4. Learned Advocate General further contends

that the present matter not being a public

interest litigation but a writ petition filed by the

petitioner, the requirement to disclose a cause

of action, is mandatory. He further submits that

the petitioner does not fall within the

expression "aggrieved person" and neither does

he have any direct grievance, for which

reliance is placed upon Ayaaubkhan Noorkhan

Pathan Vs. State of Maharashtra and others,

(2013) 4 SCC 465. Further contentions are that

there is no executable prayer; the petition

merely seeking a declaration is not

maintainable. He further submits that only para

54 in the petition, remotely suggests of any

cause of action, which does not satisfy the

requirement of law of any cause in the

petitioner. The petition therefore according to

him is not maintainable and is required to be

dismissed on that count alone.”

“7. The right to approach a Court of law by a

party, is intrinsically linked to a cause of

action, accrued in favour of such a party. The

approach, is always for the redressal of a

grievance or an entitlement, the denial of which

gives rise to a cause of action to a party whose

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right is affected by any such cause of action.

Thus, the traditional view as to a "cause of

action" is always personal to the party. The

question whether passing of a legislation by

itself would give rise to a cause of action, has

been considered by the Hon'ble Apex Court in

Rai Bahadur Hurdut Roy Moti Lal Jute Mills

(supra) as under :-

"7. On behalf of the appellant Mr Lal

Narain Sinha has contended that the High

Court was in error in holding that the proviso

to Section 14-A violates either Article 20(1) or

Article 31(2) of the Constitution. He has

addressed us at length in support of his case

that neither of the two articles is violated by the

impugned proviso. On the other hand, the

learned Solicitor-General has sought to support

the findings of the High Court on the said two

constitutional points; and he has pressed before

us as a preliminary point his argument that on

a fair and reasonable construction, the proviso

cannot be applied to the case of the first

respondent. We would, therefore, first deal with

this preliminary point. In cases where the vires

of statutory provisions are challenged on

constitutional grounds, it is essential that the

material facts should first be clarified and

ascertained with a view to determine whether

the impugned statutory provisions are

attracted; if they are, the constitutional

challenge to their validity must be examined

and decided. If, however, the facts admitted or

proved do not attract the impugned provisions

there is no occasion to decide the issue about

the vires of the said provisions. Any decision on

the said question would in such a case be

purely academic. Courts are and should be

reluctant to decide constitutional points merely

as matters of academic importance."

The same has also been considered in Kartar

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Singh (supra) as under :-

"12. The standards themselves, it would

be noticed, have been prescribed by the Central

Government on the advice of a Committee

which included in its composition persons

considered experts in the field of food

technology and food analysis. In the

circumstances, if the rule has to be struck down

as imposing unreasonable or discriminatory

standards, it could not be done merely on any

appropriate reasoning but only as a result of

materials placed before the Court by way of

scientific analysis. It is obvious that this can be

done only when the party invoking the

protection of Article 14 makes averments with

details to sustain such a plea and leads

evidence to establish his allegations. That

where a party seeks to impeach the validity of a

rule made by a competent authority on the

ground that the rules offend Article 14 the

burden is on him to plead and prove the

infirmity is to well established to need

elaboration. If, therefore, the respondent

desired to challenge the validity of the rule on

the ground either of its unreasonableness or its

discriminatory nature, he had to lay a

foundation for it by setting out the facts

necessary to sustain such a plea and adduce

cogent and convincing evidence to make out his

case, for there is a presumption that every

factor which is relevant or material has been

taken into account in and formulating the

classification of the zones and the prescription

of the minimum standards to each zone, and

where we have a rule framed with the

assistance of a committee containing experts

such as the one constituted under Section 3 of

the Act, that presumption is strong, if not

overwhelming. We might in this connection add

that the respondent cannot assert any

fundamental right under Article 19(1) to carry

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on business in adulterated foodstuffs.

13. Where the necessary facts have been

pleaded and established, the Court would have

materials before it on which it could base

findings, as regards the reasonableness or

otherwise or of the discriminatory nature of the

rules. In the absence of a pleading and proof of

unreasonableness or arbitrariness the Court

cannot accept the statement of a party as to the

unreasonableness or unconstitutionality of a

rule and refuse to enforce the rule as it stands

merely because in its view the standards are too

high and for this reason the rule is

unreasonable. In the case before us there was

neither pleading nor proof of any facts directed

to that end. The only basis on which the

contention regarding unreasonableness or

discrimination was raised was an apriori

argument addressed to the Court, that the

division into the zones was not rational, in that

hilly and plain areas of the country were not

differentiated for the prescription of the

minimum Reichert values. That a distinction

should exist between hilly regions and plains,

was again based on apriori reasoning resting

on the different minimum Reichert values

prescribed for Himachal Pradesh and Uttar

Pradesh and on no other. It was, however, not

as if the entire State of Himachal Pradesh is of

uniform elevation or even as if no part of that

State is plain country but yet if the same

minimum was prescribed for the entire area of

Himachal Pradesh, that would clearly show

that the elevation of a place is not the only

factor to be taken into account."

In Kusum Ingots (supra) the Hon'ble

Apex Court held as under :-

"19. Passing of a legislation by itself in our

opinion do not confer any such right to file a

writ petition unless a cause of action arises

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therefor.

21. A parliamentary legislation when it

receives the assent of the President of India and

is published in an Official Gazette, unless

specifically excluded, will apply to the entire

territory of India. If passing of a legislation

gives rise to a cause of action, a writ petition

questioning the constitutionality thereof can be

filed in any High Court of the country. It is not

so done because a cause of action will arise

only when the provisions of the Act or some of

them which were implemented shall give rise to

civil or evil consequences to the petitioner. A

writ court, it is well settled, would not

determine a constitutional question in vacuum."

8. Thus the consistency of judicial opinion, in so

far as it considers the cause of action, for the

purpose of laying a challenge to the

constitutional validity of any statutory

provision, as spelt out from the above decisions,

clearly indicates that the person raising such

challenge, ought to have a cause of action,

which would mean material facts, enabling the

existence of a cause of action.”

“10. It is further material to note that the petitioner

also does not fall within the expression

"aggrieved person", as indicated in

Ayaaubkhan Noorkhan Pathan (supra) in the

following manner :-

"9. It is a settled legal proposition that a

stranger cannot be permitted to meddle in any

proceeding, unless he satisfies the

authority/court, that he falls within the

category of aggrieved persons. Only a person

who has suffered, or suffers from legal injury

can challenge the act/action/order etc. in a

court of law. A writ petition under Article

226 of the Constitution is maintainable either

for the purpose of enforcing a statutory or legal

*104* WP DC PROMOTIONS

right, or when there is a complaint by the

appellant that there has been a breach of

statutory duty on the part of the authorities.

Therefore, there must be a judicially

enforceable right available for enforcement, on

the basis of which writ jurisdiction is resorted

to. The Court can, of course, enforce the

performance of a statutory duty by a public

body, using its writ jurisdiction at the behest of

a person, provided that such person satisfies

the Court that he has a legal right to insist on

such performance. The existence of such right

is a condition precedent for invoking the writ

jurisdiction of the courts. It is implicit in the

exercise of such extraordinary jurisdiction that

the relief prayed for must be one to enforce a

legal right. In fact, the existence of such right,

is the foundation of the exercise of the said

jurisdiction by the Court. The legal right that

can be enforced must ordinarily be the right of

the appellant himself, who complains of

infraction of such right and approaches the

Court for relief as regards the same.

10. A "legal right", means an entitlement

arising out of legal rules. Thus, it may be

defined as an advantage, or a benefit conferred

upon a person by the rule of law. The

expression, "person aggrieved" does not

include a person who suffers from a

psychological or an imaginary injury; a person

aggrieved must, therefore, necessarily be one

whose right or interest has been adversely

affected or jeopardised.

11.In Anand Sharadchandra Oka v.

University of Mumbai, a similar view was taken

by this Court, observing that, if a person

claiming relief is not eligible as per

requirement, then he cannot be said to be a

person aggrieved regarding the election or the

selection of other persons."

*105* WP DC PROMOTIONS

58. Shri Kumbhakoni, therefore, submits that unless a

cause of action is intrinsically linked with a litigant in whose

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

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

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

Rai Bahadur Hurdut Roy Moti Lal Jute Mills and another,

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

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

academic nature, would serve no purpose and the Courts should

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

when both the members of the Tribunal had concurred on there

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

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

59. Shri Kumbhakoni has submitted that Writ Petition

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

Maharashtra and others, is not maintainable since the Petitioner

has directly approached this Court praying for reliefs which

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

judgment delivered by this Court dated 16.02.2022, delivered in

Writ Petition No.12297/2021 (Aurangabad Bench), M/s Mestra

*106* WP DC PROMOTIONS

AG Switzerland vs. The State of Maharashtra and others.

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

“14.In the present case, the machinery providing

appeal is sought to be bye-passed by the

petitioner on the ground that the Tribunal

having already pronounced its decision in a

similar matter, substantial justice cannot be

expected from the first appellate authority as

well as from the second appellate authority.

This is the crux of Mr. Sridharan’s argument. It

is now time to examine the contentions raised

by him.”

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

Notwithstanding that questions of fact emerged

for decision in Thansingh Nathmal (supra), the

Supreme Court had the occasion to lay down

therein a principle of law which is salutary and

not to be found in any other previous decision

rendered by it. The principle, plainly is that, if a

remedy is available to a party before the high

court in another jurisdiction, the writ

jurisdiction should not normally be exercised

on a petition under Article 226, for, that would

and allow the machinery set up by the

concerned statute to be bye-passed. The

relevant passage from the decision reads as

follows:

“The jurisdiction of the High Court

under Article 226 of the Constitution is couched

in wide terms and the exercise thereof is not

subject to any restrictions except the territorial

restrictions which are expressly provided in the

Article. But the exercise of the jurisdiction is

discretionary; it is not exercised merely

because it is lawful to do so. The very

amplitude of the jurisdiction demands that it

will ordinarily be exercised subject to certain

self-imposed limitations. Resort to that

jurisdiction is not intended as an alternative

*107* WP DC PROMOTIONS

remedy for relief which may be obtained in a

suit or other mode prescribed by statute.

Ordinarily the Court will not entertain a

petition for a writ under Article 226, where the

petitioner has an alternative remedy which,

without being unduly onerous, provides an

equally efficacious remedy. Again the High

Court does not generally enter upon a

determination of questions which demand an

elaborate examination of evidence to establish

the right to enforce which the writ is claimed.

The High Court does not therefore act as a

court of appeal against the decision of a court

or tribunal, to correct errors of fact, and does

not by assuming jurisdiction under Article 226

trench upon an alternative remedy provided by

statute for obtaining relief. Where it is open to

the aggrieved petitioner to move another

tribunal, or even itself in another jurisdiction

for obtaining redress in the manner provided by

a statute, the High Court normally will not

permit, by entertaining a petition under Article

226 of the Constitution, the machinery created

under the statute to be by-passed, and will

leave the party applying to it to seek resort to

the machinery so set up.”

“26. To sum up, we are loath to entertain this writ

petition by exercising our discretion because (i)

the petitioner can approach this Court in its

appellate jurisdiction under section 27 of the

MVAT Act at the appropriate time; and (ii) the

petitioner is free to rely on the decision in

Mahyco Monsanto Biotech (India) Pvt. Ltd.

(supra) before the appellate authority to have

the impugned order reversed since such

decision will prevail, if it is applicable, over

any previous contra decision of the Tribunal.”

“ 27. However, in the peculiar facts and

circumstances, viz. pendency of this writ

petition on the file of this Court for quite some

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time and that a Constitutional issue touching

Article 286 of the Constitution is sought to be

raised, we are inclined not to relegate the

petitioner to the first appellate remedy but to

give it opportunity to prefer an appeal before

the Tribunal directly, if it so chooses, so that

any infirmity in the impugned order can be

brought to its notice, including the decision of

this Court in the case of Mahyco Monsanto

Biotech (India) Pvt. Ltd. (supra), for its

correction. It is ordered accordingly.”

60. He has then relied upon Gaurav Ganesh Das Daga

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

(Mumbai Appellate Jurisdiction), wherein, this Court has

delivered a judgment on 04.03.2022, concluding that when the

provisions of the Administrative Tribunals Act are applicable and

the Tribunal is a statutory forum, approaching the High Court

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

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

“8. Having heard the parties and on consideration of

the decisions cited at the Bar, we find no reason to

take a view different from the one expressed by us

orally on 2nd March, 2022. We completely concur

with the reasons assigned by the coordinate Bench

in Vijay Ghogare (supra) for holding the writ

petition to be not maintainable before the Court at

this stage. In view of such concurrence, we could

have preferred to maintain reticence to assigning

our reasons twice over on the same subject.

*109* WP DC PROMOTIONS

However, we wish to furnish our opinion with a

view to clear certain misconceptions in law while

holding these writ petitions not to be maintainable

before this Court. This, we feel, is required on

noticing the emergence of judicial decisions by

some Courts, based on misreading of the law laid

down in L. Chandra Kumar (supra) as well as T.

K. Rangarajan (supra), whereby grievances of

State Government employees were entertained at

the first instance upon holding that the remedy

before the Tribunals constituted by the Act is an

alternative to the writ remedy available under

Article 226 of the Constitution.

9. The discussion on the topic must, however, begin

with Kiran Singh & Ors. vs. Chaman Paswan &

Ors.. It happens to be one of the vintage decisions

of the Supreme Court referring to the fundamental

principle of law, well established, that a decree

passed by a Court without jurisdiction is a nullity

and that its invalidity could be set up whenever

and wherever it is sought to be enforced or relied

upon, even at the stage of execution and even in

collateral proceedings. A defect of jurisdiction,

whether it is pecuniary or territorial, or whether

it is in respect of the subject matter of the action

strikes at the very authority of the Court to pass

any decree, and such a defect cannot be cured

even by consent of parties. The said decision has

been followed in a long-line of decisions to which

reference is considered unnecessary at this stage.

However, we wish to record why such decision is

relevant at a later part of this discussion.”

“11. We have found on perusal of the decisions cited by

Mr. Deshmukh that some of the Courts have lost

complete sight of the difference between an

alternative remedy (meaning thereby that, apart

from the High Court, another statutory remedy is

available that provides an equally efficacious

remedy and which could have been pursued by the

litigant, but he elects to explore the writ remedy

since the bar of alternative remedy, being a rule of

*110* WP DC PROMOTIONS

self-imposed limitation, does not oust the writ

court’s jurisdiction) and a statutory remedy

(which is provided by the law as the first, nay

only, legal remedy, whereafter the aggrieved party

could pursue, if so advised, the writ remedy

questioning the decision given by the statutory

fora). This position of law would require a little

elaboration in the wake of what the position in

law was prior to the 42nd Constitution

(Amendment) Act, 1976, which introduced Part

XIV A in the Constitution containing Articles 323-

A and 323-B as well as in the light of what the

Constitution Bench laid down in L. Chandra

Kumar (supra) while inter alia examining

challenges to sub-clause (d) of clause (2) of

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

“16. Having regard to such scheme of things,

which could be pursued by an aggrieved

employee, we are also of the firm view that the

law laid down in Whirlpool Corporation vs.

Registrar of Trade Marks (carving out exceptions

on the fulfillment whereof a writ petition could be

directly entertained notwithstanding that the

litigant has not availed the alternative remedy

made available by a statute) cannot be applied to

proceedings seeking to invoke the writ jurisdiction

of the High Court for relief when the subject

matter of the action is covered by “service

matters” as defined in section 3(q) of the Act.”

“18.Unhesitatingly therefore, we record that the

decision in Magadh Sugar & Energy (supra) does

not assist the case of the petitioners.”

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

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

purpose. In our considered opinion, a decision

rendered by the High Court on a challenge of the

present nature (which is covered by the provisions

of the Act and MAT being the forum required to be

approached for relief) would be a nullity in view

of the decision in Kiran Singh (supra) read with L.

Chandra Kumar (supra). Knowing and

*111* WP DC PROMOTIONS

understanding what the law is, straining ourselves

to look into the merits of the challenge and

rendering a decision which we know would be a

nullity should not at all be attempted.

23. We ought to deal with one other side argument of

Mr. Deshmukh before recording our conclusion.

He has submitted that since the GRs under

challenge in this batch of writ petitions are also

under challenge in a separate batch of writ

petitions concerning recruitment of engineers in

the Maharashtra State Electricity Distribution

Company Ltd. (hereafter “MSEDCL”, for short),

the MAT has no jurisdiction to try such writ

petitions and the same would be required to be

heard and decided on merits by this Court.

However, driving one set of petitioners to move

the MAT while allowing another set of petitioners

to have their claim decided by the High Court

could lead to divergent opinions being rendered.

He, therefore, submits that it is desirable that this

Court hears all the writ petitions analogously.”

61. He contends that though the Tribunal at Aurangabad

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

right to bypass the Tribunal and approach this Court directly.

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

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

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

the Tribunal is available to the Respondents and such right stands

taken away by the Petitioner having directly approached this

Court.

*112* WP DC PROMOTIONS

Shri Kumbhakoni’s submissions on the merits of the

cases

62. Shri Kumbhakoni refers to Section 26 of the

Administrative Tribunals Act to contend that the members of the

Tribunal have to identify the differing points. He relies on

Shekhar Narayan Shetty vs. Madhavlal Pittie and others,

2015(4) Mh.L.J. 687. In support of his contention that these

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

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

others, (2011) 4 SCC 266.

63. Shri Kumbhakoni further contends that since this

Court is exercising supervisory jurisdiction, if there are inherent

deficiencies in the impugned judgment of the Tribunal, this Court

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

appeal. The conclusions drawn by each member of the Tribunal

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

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

remand the matters to the Tribunal for a rehearing.

*113* WP DC PROMOTIONS

64. Shri Kumbhakoni submits that the consultation with

the Maharashtra Public Service Commission (MPSC), is

inevitable and the Tribunal has clearly failed in considering this

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

legalized/ratified by the State.

Submissions of the learned Senior Advocate Shri

Rajadhyaksha

65. Shri Atul Rajadhyaksha, the learned Senior

Advocate, is leading all the learned Advocates, who are

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

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

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

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

said petitions. He relies upon the judgment delivered by the

Honourable Supreme Court in Udit Narain Singh Malpaharia

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

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

under:-

“8.The next question is, what is the nature of a

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writ of certiorari? What relief can a petitioner

in such a writ obtain from the Court?

Certiorari lies to remove for the purpose of

quashing the proceedings of inferior courts of

record or other persons or bodies exercising

judicial or quasi-judicial functions. It is not

necessary for the purpose of this appeal to

notice the distinction between a writ of

certiorari and a writ in the nature of certiorari;

in either case the High Court directs an inferior

tribunal or authority to transmit to itself the

record of proceedings pending therein for

scrutiny and, if necessary, for quashing the

same. It is well settled law that a certiorari lies

only in respect of a judicial or quasi-judicial

act as distinguished from an administrative act.

The following classic test laid down by Lord

justice Atkin, as he then was, in The Kind v.

Electricity Commissioner (1924) 1 KB 171 and

followed by this Court in more than one

decision clearly brings out the meaning of the

concept of judicial act:

"Wherever any body of persons having

legal authority to determine questions affecting

the rights of subjects, and having the duty to act

judicially.. act in excess of their legal authority

they are subject to the controlling jurisdiction

of the King's Bench Division exercised in these

writs."

Lord justice Slesser in The King v.

London County Council, (1931) 2 KB 215 (243)

dissected the concept of judicial act laid down

by Atkin, L. J., into the following heads in his

judgment: “wherever any body of persons (1)

having legal authority (2) to determine

questions affecting rights of subjects and (3)

having the duty to act judicially (4) act in

excess of their legal authority a writ of

certiorari may issue". It will be seen from the

ingredients of judicial act that there must be a

duty to act judicially. A tribunal, therefore,

*115* WP DC PROMOTIONS

exercising a judicial or quasi-judicial act

cannot decide against the rights of 1 party

without giving him a hearing or an opportunity

to represent his case in the manner known to

law. If the provisions of a particular statute or

rules made thereunder do not provide for it,

principles of natural justice demand it. Any

such order made without hearing the affected

parties would be void. As a writ of certiorari"

will be granted to remove the record of

proceedings of an inferior tribunal or authority

exercising judicial or quasi judicial acts, ex

hypothesi it follows that the High Court in

exercising its jurisdiction shall also act

judicially in disposing of the proceedings

before it. It is implicit in such a proceeding that

a tribunal or authority which is directed to

transmit the records must be a party in the writ

proceedings, for, without giving notice to it, the

record of proceedings cannot be brought to the

High Court. It is said that in an appeal against

the decree of a subordinate court, the court that

passed the decree need not be made a party and

on the same parity of reasoning it is contended

that a tribunal need not also be made a party in

a writ proceeding. But there is an essential

distinction between an appeal against a decree

of a subordinate court and a writ of certiorari

to quash the order of a tribunal or authority: in

the former, the proceedings are regulated by the

Code of Civil Procedure and the court making

the order is directly subordinate to the

appellate court and ordinarily acts within its

bounds, though sometimes wrongly or even

illegally, but in the case of the latter, a writ of

certiorari is issued to quash the order of a

tribunal, which is ordinarily outside the

appellate or revisional jurisdiction of the court

and the order is ;set aside on the ground that

the tribunal or authority acted Without or in

excess of jurisdiction. If such a tribunal- or

*116* WP DC PROMOTIONS

authority is not made party to the writ, it can

easily ignore the order of the High Court

quashing its order, for not being, a party, it will

not be liable, to contempt. In these

circumstances whoever else is a necessary

party or not the authority or tribunal is

certainly a necessary party to such a

proceeding. In this case, the Board of Revenue

and the Commissioner of Excise were rightly,

made parties in the writ petition.”

“11.The long established English practice, which

the High Courts in our country have adopted

all along, accepts the said distinction between

the necessary and the proper party in a writ of

certiorari. The English practice is recorded in

Halsbury's Laws of England, Vol. 11, 3rd Edn.

(Lord Simonds') thus in paragraph 136:

"The notice of motion or summons must

be served on all persons directly affected, and

where it relates to any proceedings in or before

a court, and the object is either to compel the

court or an officer thereof to do any act in

relation to the proceedings or to quash them or

any order made therein, the notice of motion or

summons must be served on the clerk or

registrar of the court, the other parties to the

proceedings, and (where any objection to the

conduct of the judge is to be made) on the

judge........”.

In paragraph 140 it is stated :

"On the hearing of the summons or

motion for an order of mandamus, prohibition

or certiorari, counsel in support begins and has

a right of reply. Any person who desires to be

heard in opposition, and appears to the Court

or judge to be a proper per-son to be heard, is

to be heard not withstanding that he has not

been served with the notice or summons, and

will be liable to costs in the discretion of the

Court or judge if the order should be

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made..........”

So too, the Rules made by the Patna High

Court require that a party against whom relief

is sought should be named in the petition. The

relevant Rules read thus:

Rule 3. Application under Article 226 of

the Constitution shall be registered as

Miscellaneous judicial Cases or Criminal

Miscellaneous Cases as the case may be.

Rule 4. Application shall, soon after it is

registered, be posted for orders before a

Division Bench as to issue of notice to the

respondents. The Court may either direct notice

to issue and pass such interim order as it may

deem necessary or reject the application.

Rule 5. The notice of the application shall be

served on all persons directly affected and on

such other persons as the Court may direct.

Both the English rules and the rules

framed by the Patna High Court lay down that

persons who are directly affected or against

whom relief is sought should be named in the

petition, that is all necessary parties should be

impleaded in the petition and notice served on

them. In "The law of Extraordinary Legal

Remedies" by Ferris, the procedure in the

matter of impleading parties is clearly

described at p.201 thus:

"Those parties whose action is to be

reviewed and who are interested therein and

affected thereby, and in whose possession the

record of Such action remains, are not only

proper, but necessary parties. It is to such

parties that notice to show cause against the

issuance of the writ must be given, and they are

the only parties who may make return, or who

may demur. The omission to make parties those

officers whose proceedings it is sought to direct

and control, goes to the very right of the relief

sought. But in order that the court may do

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ample and complete justice, and render

judgment which will be binding on all persons

concerned, all persons who are parties to the

record, or who are interested in maintaining the

regularity of the proceedings of which a review

is sought, should be made parties respondent."

This passage indicates that both the

authority whose order is sought to be quashed

and the persons who are interested in

maintaining the regularity of the proceeding of

which a review is sought should be added as

parties in a writ proceeding. A division Bench

of the Bombay High Court in Ahmedalli V.

M.D. Lalkaka, AIR 1954 Bom 33 at p 34 laid

down the procedure thus:

"I think we should lay down the rule of

practice that whenever a writ is sought

challenging the order of a Tribunal, the

Tribunal must always be a necessary party to

the petition. It is difficult to understand how

under any circumstances the Tribunal would

not be a necessary party when the petitioner

wants the order of the Tribunal to be quashed

or to be called in question. It is equally clear

that all parties affected by that order should

also be necessary parties to the petition."

A Full Bench of the Nagpur High Court

in Kanglu Baula v. Chief Executive Officer, AIR

1955 Nag 49 (FB), held that though the

elections to various electoral divisions were

void the petition would have to be dismissed on

the short ground that per-sons who were

declared elected from the various

constituencies were not joined as parties to the

petition arid had not been given an opportunity

to be heard before the order adverse to them

was passed. The said decisions also support the

view we have expressed.”

*119* WP DC PROMOTIONS

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

and 43 in Jogendrasinhji Vijaysinghji vs. State of Gujarat and

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

“31.The next facet pertains to the impleadment of

the Court or tribunal as a party. The special

Bench has held that even if application is

described as one not only under article 226 of

the Constitution, but also under article 227, the

Court or tribunal whose order is sought to be

quashed, if not arrayed as a party, the

application would not be maintainable as one

of the relief of certiorari, in the absence of the

concerned tribunal or Court as a party, cannot

be granted. It has also been held that if the

Court or tribunal has not been impleaded as

party- respondent in the main writ petition,

then by merely impleading such Court or

tribunal for the first time in letters patent

appeal would not change the nature and

character of the proceeding before the learned

Single Judge and, therefore, intra-court appeal

would not be maintainable. To arrive at the

said conclusion, the High Court has referred to

Messrs. Ghaio Mal & Sons v. State of Delhi and

others, Hari Vishnu Kamath (supra) and relied

upon a four-Judge Bench judgment in Udit

Narain Singh Malpaharia v. Addl. Member,

Board of Revenue.”

“38.After so stating, the four-Judge Bench referred

to English practice as recorded in Halsbury’s

Laws of England, Vol. 11, 3rd Edn. (Lord

Simonds’) and a Division Bench judgment of

the Bombay High Court in Ahmedalli v. M.D.

Lalkaka and a Full Bench decision of Nagpur

High Court in Kanglu Baula Kotwal v. Janpad

Sabha, Durg and summarized thus: (Udit

Narain Singh Malpaharia case, AIR p.790,

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para 12)

“To summarise: in a writ of certiorari

not only the tribunal or authority whose order

is sought to be quashed but also parties in

whose favour the said order is issued are

necessary parties. But it is in the discretion of

the court to add or implead proper parties for

completely settling all the questions that may

be involved in the controversy either suo motu

or on the application of a party to the writ or

an application filed at the instance of such

proper party.”

39. The High Court, as we find, relied on the

aforesaid decision to form the foundation that

unless a Court or a tribunal is made a party,

the proceeding is not maintainable. What has

been stated in Hari Vishnu Kamath (supra),

which we have reproduced hereinbefore is that

where plain question on issuing directions

arises, it is conceivable that there should be in

existence a person or authority to whom such

directions could be issued. The suggestion that

non-existence of a tribunal might operate as a

bar to issue such directions is not correct as the

true scope of certiorari is that it merely

demolishes the offending order and hence, the

presence of the offender before the Court,

though proper is not necessary for the exercise

of the jurisdiction or to render its determination

effective.

40. In Udit Narain Singh (supra), the fulcrum of

the controversy was non- impleadment of the

persons in whose favour the Board of Revenue

had passed a favourable order. There was

violation of fundamental principles of natural

justice. A party cannot be visited with any kind

of adverse order in a proceeding without he

being arrayed as a party. As we understand in

Hari Vishnu Kamath (supra), the seven-Judge

Bench opined that for issuance of writ of

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certiorari, a tribunal, for issue of purpose of

calling of record, is a proper party, and even if

the tribunal has ceased to exist, there would be

some one incharge of the tribunal from whom

the records can be requisitioned and who is

bound in law to send the records. The larger

Bench has clearly stated that while issuing a

writ of certiorari, the Court merely demolishes

the defending order, the presence of the

offender before the Court though proper but is

not necessary for exercise of jurisdiction. The

said finding was recorded in the context of a

tribunal.

41. In this context, we may profitably refer to the

decision in Savitri Devi (supra) wherein a

three-Judge Bench, though in a different

context, had observed thus:-

“14.Before parting with this case, it is

necessary for us to point out one aspect of the

matter which is rather disturbing. In the writ

petition filed in the High Court as well as the

special leave petition filed in this Court, the

District Judge, Gorakhpur and the 4th

Additional Civil Judge (Junior Division),

Gorakhpur are shown as respondents and in the

special leave petition, they are shown as

contesting respondents. There was no necessity

for impleading the judicial officers who

disposed of the matter in a civil proceeding

when the writ petition was filed in the High

Court; nor is there any justification for

impleading them as parties in the special leave

petition and describing them as contesting

respondents. We do not approve of the course

adopted by the petitioner which would cause

unnecessary disturbance to the functions of the

judicial officers concerned. They cannot be in

any way equated to the officials of the

Government. It is high time that the practice of

impleading judicial officers disposing of civil

proceedings as parties to writ petitions under

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Article 226 of the Constitution of India or

special leave petitions under Article 136 of the

Constitution of India was stopped. We are

strongly deprecating such a practice.””

“43. As we notice, the decisions rendered in Hari

Vishnu Kamath (supra), Udit Narain Singh

(supra) and Savitri Devi (supra) have to be

properly understood. In Hari Vishnu Kamath

(supra), the larger Bench was dealing with a

case that arose from Election Tribunal which

had ceased to exist and expressed the view how

it is a proper party. In Udit Narain Singh

(supra), the Court was really dwelling upon the

controversy with regard to the impleadment of

parties in whose favour orders had been passed

and in that context observed that tribunal is a

necessary party. In Savitri Devi (supra), the

Court took exception to courts and tribunals

being made parties. It is apposite to note here

that propositions laid down in each case has to

be understood in proper perspective. Civil

courts, which decide matters, are courts in the

strictest sense of the term. Neither the court nor

the Presiding Officer defends the order before

the superior court it does not contest. If the

High Court, in exercise of its writ jurisdiction

or revisional jurisdiction, as the case may be,

calls for the records, the same can always be

called for by the High court without the Court

or the Presiding Officer being impleaded as a

party. Similarly, with the passage of time there

have been many a tribunal which only

adjudicate and they have nothing to do with the

lis. We may cite few examples; the tribunals

constituted under the Administrative Tribunals

Act, 1985, the Custom, Excise & Service Tax

Appellate Tribunal, the Income Tax Appellate

Tribunals, the Sales Tax Tribunal and such

others. Every adjudicating authority may be

nomenclatured as a tribunal but the said

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authority(ies) are different that pure and simple

adjudicating authorities and that is why they

are called the authorities. An Income Tax

Commissioner, whatever rank he may be

holding, when he adjudicates, he has to be

made a party, for he can defend his order. He is

entitled to contest. There are many authorities

under many a statute. Therefore, the

proposition that can safely be culled out is that

the authorities or the tribunals, who in law are

entitled to defend the orders passed by them,

are necessary parties and if they are not

arrayed as parties, the writ petition can be

treated to be not maintainable or the court may

grant liberty to implead them as parties in

exercise of its discretion. There are tribunals

which are not at all required to defend their

own order, and in that case such tribunals need

not be arrayed as parties. To give another

example:- in certain enactments, the District

Judges function as Election Tribunals from

whose orders a revision or a writ may lie

depending upon the provisions in the Act. In

such a situation, the superior court, that is the

High Court, even if required to call for the

records, the District Judge need not be a party.

Thus, in essence, when a tribunal or authority

is required to defend its own order, it is to be

made a party failing which the proceeding

before the High Court would be regarded as not

maintainable.”

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

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

Administrative Tribunals Act, 1985. He refers to Dynavision

Ltd. vs. Income Tax Appellate Tribunal and others, 2008 SCC

*124* WP DC PROMOTIONS

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

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

“9. As, there is a difference of opinion between the

members of the Division Bench, they requested the

President under section 255(4) of the Act to

constitute a third member for resolving the

opinion expressed by each one of them. According

to the President, there is a difference of opinion

while identifying the differences between the

members of the Division Bench. As there is no

uniformity even in identifying the points, the

President has formulated the points of difference

between the Division Bench-Members and

decided the case on the merits. Aggrieved by the

same, the petitioner has filed W.P. No. 7060 of

2000 challenging the order of the third member.

10. Learned counsel appearing for the petitioner

submitted that the Third member has no right to

go beyond the scope of reference in a matter of

difference of opinion between the judicial member

and the accountant member. He has to consider

only the difference of opinion stated by the

members. So, the third member is wrong in

formulating the questions on his own and

deciding the case as against the assessee. It is,

therefore, submitted that the order passed by the

third member is illegal and without justification

and the same should be quashed. Learned counsel

also submitted that since the third member

exceeded his jurisdiction, the order passed by him

has to be set aside with a direction to the third

member to reconsider the matter afresh and also

further direction to the third member to consider

only the difference of opinion stated by the

respective members..

11. Learned counsel appearing for the Revenue

submitted that even though the third member re-

framed the difference of opinion, the sum and sub

stance of the issue involved is the same, therefore,

*125* WP DC PROMOTIONS

the order of the third member is in conformity

with law and the same should be affirmed. She

further stated that in view of the framing the new

issues by the third member, she has no objection

to remand the matter with a direction to the third

member to consider only the difference of opinion

referred to by the judicial member and the

accountant member.”

“13. From a reading of the above section makes

it clear that whenever the members or Bench

differ in opinion on any point, the point shall be

decided according to the opinion of the majority,

if there is a majority. If the members are equally

divided, they shall state the point or points on

which they differ, and the case shall be referred by

the President of the Appellate Tribunal for

hearing on such point or points by one or more of

the other members of the Appellate Tribunal, and

such point or points shall be decided according to

the opinion of the majority of the members of the

Appellate Tribunal who have heard the case

including the persons, who first heard it. The

order of reference to the third member shall

contain the difference of opinion between the

members of the Bench. The President or the third

member has no right to go beyond the scope of

reference and they have to consider only the

difference of opinion stated by the members of the

Bench. Section 255(4) does not vest such power

with the President or the third member. They have

also no right to formulate the question on their

own. Framing the question on their own goes

beyond the jurisdiction. The third member must

confine himself to the order of reference.

Therefore, he has no right to enlarge, restrict and

modify and/or formulate any question of law on

his own on the difference of opinion referred to by

the members of the Tribunal. In this case, the

Judicial and the accountant member had the

difference of opinion and formulated the

*126* WP DC PROMOTIONS

questions. The Third Member in paragraph 2 of

the order has held as follows:

“2. When there is difference of opinion even

while identifying the differences between the

members of the Division Bench, what is to be

done was earlier decided by me as a third member

in a case now found reported in Chetna

Enterprises v. ITO, [1999] 238 ITR (AT) 103

(Patna). At page 125 of the reported decision,

after extracting the provision of section 255(4) of

the Income-tax Act, I held that in such a case the

solution should be found out as follows:

“It would show that the point or points of

difference shall be referred by the President to a

third member. Suppose, if there is no unanimity

even in identifying the point or points of difference

among the differing members, just like in this

case, then I feel it is the duty of the President to

identify the real points of difference and refer

them to a third member whom he may appoint

under the powers given to him under section

255(4)."

Then, I identified the real differing points

between the differing members and formulated

them for decision of the third member, similarly

following the said precedent, which was not either

disapproved or set aside by the Hon'ble High

Court or Supreme Court, I feel that I should

follow the same procedure even in this case and,

therefore, I went through the whole record, orders

of the differing members and I found out that

following are the points of difference between the

differing Division Bench members and these

differences are to be resolved by the third

member:

1. Whether the assessee debited Rs. 4,59,10,736 to

the purchase account towards customs duty,

added the said sum to the closing stock value and

debited the said sum to the profit and loss

account?

2. When did the liability to pay customs duty arise

*127* WP DC PROMOTIONS

to the assessee?

3. Whether there was change of method of

accounting adopted by the assessee while

accounting customs duty liability in this

assessment year?

4. Whether out of Rs. 4,59,10,736, the assessee

paid Rs. 3,34,13,672 between the date of close of

the accounting year and the date of filing return

by the assessee under section 139(1) of the

Income-tax Act for the assessment year 1990-91,

and it is, the asses see was correctly allowed

deduction of Rs. 3,34,13,672 as customs duty paid

under section 43B of the Income-tax Act ?

and

5. Whether the impugned sum of Rs. 1,24,97,664

remained to be paid as customs duty and whether

its disallowance under section 438 on the ground

of non-payment within the time allowed under the

provisions of section 438 is correct under law ?"

14. The High Court of Madras, in the case of ITO v.

Vice-President, ITAT, [1985] 155 ITR 310,

considered the scope of section 255(4) of the

Income-tax Act, 1961, wherein it has been held

that the power of the third member is confined to

giving of a decision on the points on which the

members of the Tribunal had differed and which

had been formulated by them as the question for

the decision of the third member and held as

follows (page 314):

"Admittedly, in this case, the President of

the Appellate Tribunal has referred the matter to

the third member (Thiru D. Rangaswamy) to hear

on the point or points on which the two members

of the Tribunal had differed and on the third

member giving his decision on the point or points

referred to it, the appeal should be taken to have

been decided by the opinion of the majority of the

members of the Appellate Tribunal who have

heard the case including those who first heard it.

Thus, the power of the third member to whom the

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case is referred is confined to giving of a decision

on the point on which the members had differed

and which has been formulated them as a

question for the decision of a third member.

In this case, the third member has

proceeded on the basis that the question referred

by the two members of the Tribunal is wide

enough to enable the assessee to raise additional

points and, therefore, the additional points

pressed by the assessee should be considered.

Even so, we are of the view that the third member

should have pronounced his opinion on the point

of difference as also on the additional points

raised by the assessee. But without doing so, the

third member has remitted the matter to the

original two members of the Tribunal for a fresh

decision. We are of the view that the third member,

who is functioning under section 255(4) of the Act

does not have such a power as to direct the two

members of the Tribunal who had differed on the

point referred to the third member, to decide a

particular point or act in a particular manner.

Such a power vests only with an appellate or

revisional authorities, if there are any. The power

of the third member to whom the points of

difference have been referred cannot act as if it

were an appellate authority over the two members

of the Tribunal and direct them to rehear and

dispose of the matter afresh. No doubt, the third

member, in this case, happened to be the Vice-

President. But that will not clothe him with the

power to give directions or remit the matters

while functioning under section 255(4) of the Act.

The learned Advocate General appearing for the

assessee would say that section 255(4) of the Act

should be read in conjunction with section 254(1)

of the Act which deals with the powers of the

Appellate Tribunal. According to him, the third

member to whom the points of difference have

been referred, should be taken to have all the

powers of the Tribunal under section 254(1) and

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as such the Tribunal can pass such orders as it

thinks fit. Therefore, the third member has got the

power to pass any order as he thinks fit. The

submission of the learned Advocate-General is in

direct conflict with the language and the object

behind section 255(4) of the Act. When section

255(4) says that the third member shall decide the

points of difference referred to him and the

decision of the Tribunal will be as per the

majority opinion, the third member is expected to

give his decision, whatever it is, so that the

majority opinion could be determined for the

purpose of disposal of the appeal before the

Tribunal. If, based on the language of section

254(1) of the Act, we were to hold that the third

member can pass any order he likes, then such an

order will not serve the purpose for which section

255(4) of the Act was introduced in the statute

book. It is well established that the provisions of

the Act have to be construed harmoniously so as

to give effect to all the provisions of the Act and to

carry out the objects sought to be achieved by the

various statutory provisions. In this case, the third

member has not chosen to give his opinion one

way or the other either on the point of dispute,

i.e., on the mode of computation of the capital

gains or on the new points urged by the assessee

before him. If the third member has entertained

the new points and has given his opinion one way

or the other, as also on the point of dispute

referred to it, it can be said that he has acted

within his jurisdiction, though it may be open to

the Revenue to contend before the appropriate

forum that the third member should not have

entertained the new points which were not urged

before the two members of the original Tribunal.

In this case, as already stated, without giving his

decision on any of the points the third member has

merely remitted the matter to the two members of

the Tribunal for a fresh consideration on all the

points. We do not see how the third member to

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whom the point of dispute is referred under

section 255(4) can claim to have any larger power

than the two members who originally constituted

the Tribunal. The third member has no higher

power or jurisdiction than the members who

originally constituted the Tribunal, and therefore,

the remit order directing them to rehear the matter

will be clearly outside the jurisdiction of the third

member. Hence, we cannot sustain legally the

order of the third member, in this case, remitting

the matter to the two members of the original

Tribunal without expressing any opinion on the

question which he had to consider."

15. Similar view was also taken by the Allahabad

High Court, in the case of Jan Mohammed v. CIT,

(1953] 23 ITR 15, and considered the scope of the

provision of section 5A(7) of the Act,

corresponding to section 255(4) of the new Act,

wherein it was held that the third member can

decide only the point that had been referred to

him and he cannot formulate the new points

himself and reads as follows (page 25):

"The third member could, therefore, decide

only the point that had been referred to him and

he could not formulate a new point for himself on

which he could base his decision. It appears to us

to be further clear from a reading of the sub-

section quoted above that, after the decision of the

point or points referred to him by the third

Member, the case should go back to the original

Tribunal because so far as we can see, the third

member has not been given any right to decide the

appeal. According to section 5A(6) of the Income-

tax Act, the appeal must be decided by the

Tribunal which must consist of a Bench of not less

than two members. As we have already said, the

point referred to the third member was whether

there could be a presumption legally drawn from

the materials on the record that the bus belonged

to the 'appellant', and on that point the third

*131* WP DC PROMOTIONS

member having agreed with Shri Kalbe Abbas

that no such presumption could be legally drawn,

the majority view was in favour of the assessee.

The last part of section 5A(7) of the Act provides

that the point or points have to be decided

according to the opinion of the majority of the

members of the Tribunal who had heard the case

including those who had first heard it. After the

opinion of the third member had been obtained

the case should have gone back to the Tribunal

for its final orders."”

68. He has then referred to H. Chandunmul vs.

Commissioner of Income Tax, 1953 The Indian Law Reports

(Vol.XXXII) Patna Series 445. His contention, therefore, is that

if Section 26 is to be invoked, it is not for this Court to frame the

points/ divergent opinions, which is for the members of the

Tribunal to formalize. Unless the members set out the points of

difference between the two, this Court cannot frame such points

for reference to the third Member under Section 26. As has been

held in H. Chandunmul (supra), even the Chairperson/ President

cannot frame the points and it has to be left to the members of

the Tribunal who have to forward the points on which they differ,

to the Chairperson for adjudication.

*132* WP DC PROMOTIONS

69. In the above backdrop, Shri Rajadhyaksha contends

that if the DDCs desire to invoke Section 26 of the Act, they

would have to implead the Tribunal as a Respondent in the

present proceedings. This Court will have to issue notices to the

Tribunal calling upon it to explain as to why the points were not

formulated and whether, Section 26 was lost sight off. After

considering the explanation of the Tribunal, this Court can

conclude on the issue referable to Section 26 of the Act. He,

therefore, sums up on this issue by contending that the petitions

preferred by the DDCs will have to be dismissed for non joinder

of parties.

Submissions of Shri Rajadhyaksha on the 1977 Rules

70. Shri Rajadhyaksha has contended that Rule 13(5) is

the determination test for deciding the seniority inter-se the

Tahasildar [on promotion to Deputy Collector (PDC)] and the

DDC. The promotional ladder begins from the Tahasildar-

Deputy Collector- Deputy Collector (Selection Grade)-

Additional Collector- Additional Collector (Selection Grade) and

then the Collector.

*133* WP DC PROMOTIONS

71. He contends that the terms ‘permanent’ post,

‘temporary’ post and ‘officiating’ posts are not defined under the

1977 Rules. He adverts to Rule 9(40) “permanent post” and

9(53) “temporary post” of the Maharashtra Civil Services

(General Conditions of Services) Rules, 1981 (for short “the

MCS Rules of 1981”), which read as under:-

“(40) Permanent Post means a post carrying a

definite rate of pay sanctioned without limit of

time.”

“(53)Temporary post means a post carrying a

definite rate of pay sanctioned for a limited

time.”

“Note- Substantive appointments to

temporary posts should be made in a limited

number of cases only, as for example, when

posts are, to all intents and purposes, quasi-

permanent or when they have been sanctioned

for a period of not less than, or there is reason

to believe that they will not terminate within a

period of three years. In all other cases,

appointments in temporary posts should be

made in an officiating capacity only.

Instruction.- The benefit of substantive

appointments to temporary posts contemplated

in the above note should not be allowed to be

enjoyed by more than one person

simultaneously. Therefore, where a Government

servant has already been appointed

substantively to a temporary post and there is a

temporary interruption in his tenure of the post,

it would not be proper to appoint another

Government servant substantively to the post

during such temporary interruption. For this

purpose, interruptions which are likely to last

for less than 3 years may be treated as

*134* WP DC PROMOTIONS

temporary. It follows, therefore, that where a

Government servant is already appointed

substantively to temporary post a second

Government servant should not be appointed

substantively to it unless the previous holder of

the post has been transferred from it

permanently or unless he has been transferred

temporarily and there is reason to believe that

he will remain absent from the post for a period

of not less than three years.”

72. According to him, the definition of ‘continuous

service’ under Rule 2(d) of the 1977 Rules read with the proviso

there below and Rule 2(i) defining “fortuitous service”, would

mean that the service between the commencement of officiating

as a Deputy Collector until the deemed date is granted.

73. He refers to clause 5.2 of the impugned final list

dated 31.12.2020 and points out that the State Government has

taken a conscious decision that it would not take a review of the

PDC under Rule 12. This categoric stand renders the select list as

defined under Rule 2(n), final. He then refers to the definition of

‘cadre’ under Rule 9(5) and ‘officiate’ under Rule 9(35) of the

MCS Rules, 1981.

74. He further contends that the quota of Deputy

*135* WP DC PROMOTIONS

Collectors would include the sanctioned strength as well as the

adhoc/ temporary appointments by way of promotions of the

Tahasildars. He adverts to the judgment of the Tribunal delivered

in O.A. No.526/ 2004 dated 17.04.2008 wherein, the Tribunal

has concluded in paragraphs 55 and 56 that the ‘quota’ would

include both these categories. With this submission, he contends

that the rule of appointing the Direct Deputy Collectors in

between 35% to 50% and commensurate appointments on

temporary promotions of the PDC, would be included in the said

quota. Hence, the number of posts of Deputy Collectors would

not be restricted to 514 for the period 1999 upto 2012.

75. He has relied upon the judgment delivered in O.P.

Singla and another vs. Union of India and others, (1984) 4

SCC 450 and has relied upon paragraph Nos.1 to 3, 8 and 16 to

18, which read as under:-

“1.Once again, we are back to the irksome

question of inter se seniority between

promotees and direct recruits. The contestants,

this time, are judicial officers of Delhi. Our

familiarity, generally, with the difficulties in the

way of judicial officers and our awareness of

their just aspirations make our task difficult

and sensitive.

2. The conclusion to which we have come in this

*136* WP DC PROMOTIONS

judgment is not different from the one reached

by our learned Brother Sabyasachi Mukharji.

In this Judgment, Brother Mukharji has

discussed, more fully, the various aspects of this

matter as also the decisions which were cited

before us. Our reasons for writing this separate

opinion are, the general importance of this

case. the fact that it concerns the higher

judiciary and our respectful disagreement with

Brother Mukharji on the interpretation of some

of the provisions with which we are concerned

in these Writ Petitions.

3. There are many decisions bearing upon the

familiar controversy between promotees and

direct recruits and this will be one more.

Perhaps, just another. Since those various

decisions have not succeeded in finding a

satisfactory solution to the controversy, we

would do well by confining our attention to the

language and scheme of the rules which are

under scrutiny herein, instead of seeking to

derive a principle of universal application to

the cases like those before us. Previous

judgments of this Court are, of course, binding

to the extent that they are relevant and they

cannot be ignored. But, if they turn upon their

own facts, the general set-up of the particular

service, its historical development and the

words of the impugned provisions, no useful

purpose will be served by discussing those

cases at length, merely to justify an observation

at the end that they have no application and are

distinguishable.”

“8.Rules 7 and 8 which are crucial to the

controversy between the promotees and direct

recruits read thus :

"Rule 7- Regular Recruitment:-

Recruitment after the initial recruitment shall

be made :

(a) by promotion on the basis of selection from

*137* WP DC PROMOTIONS

members of the Delhi Judicial Service, who

have completed not less than 10 years of

Service in the Delhi Judicial Service.

(b) by direct recruitment from the Bar.

Provided that not more than 1/3rd of the

substantive posts in the Service shall be held by

direct recruits."

"Rule 8-(1) The inter-se seniority of members of

the Delhi Judicial Service promoted to the

Service shall be the same as in the Delhi

Judicial Service.

(2) The seniority of direct recruits vis-a-vis

promotees shall be determined in the order of

rotation of vacancies between the direct

recruits and promotees based on the quotas of

vacancies reserved for both categories by Rule

7 provided that the first available vacancy will

be filled by a direct recruit and the next two

vacancies by promotees and so on."”

“16.Logically, we must begin this inquiry with the

question as to the interpretation of the proviso

to Rule 7. Does that proviso prescribe a quota

or does it merely provide for a ceiling ? In

other words, does the proviso require that, at

any given point of time, 1/3rd of the substantive

posts in the Service shall be reserved for direct

recruits or does it only stipulate that the posts

held by direct recruits shall not be more than

1/3rd of the total number of substantive posts in

the Service? The proviso reads thus:

"Provided that not more than 1/3rd of the

substantive posts in the Service shall be held by

direct recruits."

This language is more consistent with the

contention of the promotees that the proviso

merely prescribes, by way of imposing a

ceiling, that the direct recruits shall not hold

more than 1/3rd of the substantive posts.

Experience shows that any provision which is

intended to prescribe a quota, generally

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provides that, for example, "1/3rd of the

substantive posts shall be filled in by direct

recruitment." A quota provision does not use

the negative language, as the proviso in the

instant case does, that "not more than" one-

third of the substantive posts in the Service

shall be held by direct recruits.

17.If the matter were to rest with the proviso, its

interpretation would have to be that it does not

prescribe a quota for direct recruits : it only

enables the appointment of direct recruits to

substantive posts so that, they shall not hold

more than 1/3rd of the total number of

substantive posts in the Service. However, it is

well recognised that, when a rule or a section is

a part of an integral scheme, it should not be

considered or construed in isolation. One must

have regard to the scheme of the fasciculus of

the relevant rules or sections in order to

determine the true meaning of any one or more

of them. An isolated consideration of a

provision leads to the risk of some other inter-

related provision becoming otiose or devoid of

meaning. That makes it necessary to call

attention to the very next rule, namely, rule 8. It

provides by clause 2 that :

"The seniority of direct recruits vis-a-vis

promotees shall be determined in the order of

rotation of vacancies between the direct

recruits and promotees based on the quotas of

vacancies reserved for both categories by Rule

7 provided that the first available vacancy will

be filled by a direct recruit and the next two

vacancies by promotees and so on."

This provision leaves no doubt that the

overall scheme of the rules and the true

intendment of the proviso to Rule 7 is that 1/3rd

of the substantive posts in the Service must be

reserved for direct recruits. Otherwise, there

would neither be any occasion nor any

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justification for rotating vacancies between

direct recruits and promotees. Rule 8 (2), which

deals with fixation of seniority amongst the

members of the Service, provides, as it were, a

key to the interpretation of the proviso to Rule 7

by saying that the proviso prescribes "quotas"

and reserves vacancies for both categories. The

language of the proviso to Rule 7 is certainly

not felicitous and is unconventional if its

intention was to prescribe a quota for direct

recruits. But the proviso, as I have stated

earlier, must be read along with Rule 8 (2)

since the two provisions are inter-related. Their

combined reading yields but one result, that the

proviso prescribes a quota of 1/3rd for direct

recruits.

18.The process of reading the Rules as parts of a

connected whole does not end with Rules 7 and

8. Rules 16 and 17 are also relevant for the

present purpose and have, indeed, an important

bearing on the question of reservation of

vacancies for direct recruits to the extent of

one-third of the substantive posts in the Service.

Clause (1) of Rule 16 confers power upon the

Administrator to create temporary posts in the

Service. By clause (2) of Rule 16, such posts

are required to be filled, in consultation with

the High Court, from amongst the members of

the Delhi Judicial Service, that is to say, the

promotees. Rule 17, which is in the nature of a

non-obstante provision, provides that not

withstanding anything contained in the Rules,

the, Administrator may, in consultation with the

High Court, fill substantive vacancies in the

Service by making temporary appointments

thereto from amongst the members of the Delhi

Judicial Service. The position which emerges

from the provisions contained in Rules 16 and

17 is that it is permissible to create temporary

posts in the Service and, even substantive

vacancies in the Service can be filled by making

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temporary appointments. The twofold

restriction on this dual power is that the High

Court must be consulted and such appointments

must be made from amongst the promotees

only. If temporary appointment to the Service,

either in temporary posts or in substantive

vacancies, can be made within the framework

of the Rules and have to be made, if at all, from

amongst the promotees and promotees only, the

quota rule contained in the proviso to Rule 7

must inevitably break down when such

appointments are made. The simple reason

leading to that consequence is that direct

recruits cannot be appointed either to

temporary posts in the Service or to substantive

vacancies in the Service which are filled in by

making temporary appointments. Thus, even

though the proviso to Rule 7 prescribes a quota

of one-third for direct recruits, Rules 16 and 17

permit the non- observance of the quota rule in

the circumstances stated in these rules.”

76. He refers to paragraph Nos.2, 4, 7, 10, 11, 13 and 14

in V. Bhasker Rao and others vs. State of A.P. and others,

(1993) 3 SCC 307, which read as under:-

“2.The recruitment to the Andhra Pradesh Higher

Judicial Service (the Service) is governed by

the Rules called "The Andhra Pradesh State

Higher Judicial Service Special Rules" (the

Special Rules). Rules 1, 2, 4 and 6 of the

Special Rules which are relevant are as under:

"Rule 1. Constitution:- The service shall consist

of the following categories:-

Category-1 :- District and Sessions Judges 1st

Grade.

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Category-II :- District and Sessions Judges,

Second Grade including Chairman, Andhra

Pradesh Sales Tax Appellate Tribunal, Chief

Judge, City Civil Court, Additional Chief

Judge, City Civil Court, Chief Judge, Court of

small Causes, Chief City Magistrate,

Chairman, Tribunal for Disciplinary

Proceedings, Presiding Officers, Labour Courts

and Addl. District and Sessions Judges.

Rule 2. Appointment :- (a) Appointment to

Category-I shall be made by promotion from

Category-II and appointment to Category-II

shall be made:-

(i) by transfer from among:-

(a) Sub-Judges in the Andhra State Judicial

Service; or in the Hyderabad State Judicial

Service; and

(ii) by direct recruitment from the Bar:

Provided that 33-1/3% of the total number of

permanent posts shall be filed or reserved to be

filled by direct recruitment.

Explanation:- In the determination of 33-1/3%

of the total number of permanent posts,

fractions exceeding one-half shall be counted

as one and other fractions shall be disregarded.

(b) All promotions shall be made on grounds of

merit and ability, seniority being considered

only when merit and ability are approximately

equal.

Rule 4. Probation:- Every person appointed to

Category-II otherwise than by transfer, shall,

from the date on which he joins duty be on

probation for a total period of one year on duty.

Rule 6. Seniority:- The seniority of a person

appointed to Category 1 or Category 2 shall be

determined with reference to the date from

which he was continuously on duty in that

category."”

“4.On a plain reading of the Special Rules the

salient features of the Service can be culled out

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as under:

(1) Rule 1 provides for the constitution of

the Service. All the posts of District and

Sessions Judges Second grade created from

time to time are part of the Service. The natural

corollary is that the Service consists of

permanent as well as temporary posts.

(2) The recruitment to Category-II of the

service is by transfer from amongst the

Subordinate Judges and also by direct recruits

from the Bar.

(3) 33 1/3% of the total number of

permanent posts in Category-II of the Service

are to be filled by way of direct recruitment.

(4) The seniority under Rule 6 is to be

determined with reference to the date from

which a person is continuously on duty.

Whether the person is continuously on duty

against a temporary post or permanent post is

of no consequence. A person is entitled to the

fixation of his seniority on the basis of

continuous length of service rendered either

against permanent post or temporary post.”

“7.Mr. P.P. Rao, learned counsel for the petitioners

has raised the following contentions for our

consideration:

(1) That the Service consists of only

permanent posts under the Special Rules. There

is no provision under the Special Rules for

adding temporary posts to the cadre. The

appointment of respondents to the posts of

District and Sessions Judges Second grade on

temporary basis can at best be treated under

rule 10(a)(i) of the State Rules.

(2) The temporary service rendered by

respondents.4 to 16 being outside the cadre

cannot be counted towards seniority.

(3) Proviso to Rule 2 and Rule 6 of the

Special Rules have to be read together and

doing so the permanent vacancies having been

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made available for respondents 4 to 16 in the

year 1983 their service prior to that date

cannot be counted towards seniority.”

“10.Mr. Madava Reddy then contended that the

petitioners were appointed in the years 1981

and since then till the year 1988 twelve

seniority lists have been published showing the

petitioners below respondents 4 to 16. At no

point of time they challenged the seniority lists

in the Court. Even when the writ petitions filed

by Chalapathi and others were pending they

did not intervene before the High Court. The

petitioners, according to Mr. Madava Reddy,

are guilty of gross delay and latches and as

such are not entitled to get relief by way of this

petition under Article 32 of the Constitution of

India.”

“11.We see considerable force in both the

contentions raised by Mr. Madava Reddy. We

are, however, of the view that it would be in the

larger interest of the Service to dispose of this

petition on merits.”

“13.Having taken the view that the Service under

the Special Rules consists of permanent as well

as temporary posts the second contention of Mr.

Rao looses its ground. Temporary, posts of

District and Sessions Judges Second grade

being part of the Service the seniority has to be

counted on the basis of length of service

including the service against a temporary post.

14.The third contention of Mr. Rao is mentioned to

be rejected in view of Rule 6 of the Special

Rules. Rule 6 of the Special Rules is in no way

dependent on proviso to Rule 2 of the Special

Rules. Both are to be operative independently.

In the scheme of the rules the seniority rule is

not dependent on the quota Rule. Quota has

been provided for the direct recruits only

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against permanent posts. The seniority rule

permits the counting of total period of service

from the date a person is on duty against a post

in the category. Even though, the petitioners

were appointed substantively to the service

earlier to respondents 4 to 16 but in view of

Rule 6 they cannot be declared senior on the

basis of continuous length of service against

temporary as well as permanent posts

respondents 4 to 16 have been rightly given

seniority above the petitioners.”

77. The learned Senior Advocate Shri Rajadhyaksha has

relied upon the following judgments:-

(a)Income Tax Officer, Company Circle-II, Madras

vs. Vice President, ITAT, 1983 SCC Online Mad 358.

(b)Jagannath Agarwalla vs. The King, Volume XXIV

Calcutta Weekly Notes 405.

(c)State of Orissa vs. Minaketan Patnaik, AIR 1953

Orissa 160 : 1952 SCC Online Orissa 34.

(d)Miss Leena Khan vs. Union of India and others,

(1987) 2 SCC 402.

(e)LIC vs. S.S. Srivastava, 1988 Supp SCC 1.

(f)Air India Cabin Crew Association vs.

Yeshaswinee Merchant, 2003 (6) SCC 277.

(g)Kusum Ingots & Alloys Ltd. vs. Union of India

*145* WP DC PROMOTIONS

and another, (2004) 6 SCC 254.

(h)S. Ramanathan vs. Union of India and others,

(2001) 2 SCC 118.

Submissions of Shri Ajay S. Deshpande

78. Shri Ajay S. Deshpande, the learned Advocate

representing the Petitioners in Writ Petition No.9163/2022

(Samiksha Chandrakar and Pandurang Kulkarni), besides his

oral submissions, has tendered his Written Notes. The gist of his

submissions is as under:-

(a)The Government Resolution dated 31.12.2020

determining the cadre strength has not been challenged.

However, it was incorrectly stated that it was challenged in TA

No.1/2021. For this incorrect statement, Shri Deshpande tenders

an unconditional apology.

(b)The cadre strength is irrelevant because the Rules

refer to ‘permanent posts,’ not ‘cadre strength’. Thus, whether

the cadre strength is 514 or 5014, it does not impact the case.

This Court has to determine only ‘permanent post’.

(c)The GR dated 31.12.2020 determining cadre

strength year wise from 1980 onwards, retrospectively, is

*146* WP DC PROMOTIONS

irrelevant. Any retrospective determination of cadre strength or

increase in cadre strength, is disapproved by the Honourable

Supreme Court in Union of India vs. Hemraj Singh Chauhan,

(2010) 4 SCC 290.

(d)Merely because PDCs do not challenge the

determination of cadre strength retrospectively, will not

automatically validate the order of determining cadre strength,

retrospectively.

(e)The permanent posts of Deputy Collectors were 413

as of 11.08.1980. The Tribunal erroneously presumed 514 posts.

The Government failed to provide documents justifying this

increase. The PDC never agreed the figure of permanent 514

posts.

(f)26 posts of Leave Reserve Deputy Collectors have

been abolished and 25 posts of Additional Collectors’ cadre have

been created and thus, the total number of permanent posts in the

year 1992, were 383.

(g)The Government has come with a specific case that

514 posts of Deputy Collectors include ‘permanent posts’ as well

as ‘temporary posts’ in the cadre, which in fact is a logical stand,

which has not been accepted and endorsed by the Tribunal.

*147* WP DC PROMOTIONS

(h)The prejudice that is caused to the PDCs is because

the Government has considered the ‘cadre strength’ and

‘permanent posts’ as synonyms, due to which the number of

‘permanent posts’ has suddenly increased from 383 in the year

1995 to 514 in 1999. The Government is not able to substantiate

this sudden increase in the ‘permanent posts’.

(i)Since the Administrative Tribunal has categorically

recorded a finding that, the promotions of the petitioners herein

are neither 'adhoc' nor by way of 'stop gap arrangement' or in

breach of the Rules, as a necessary corollary thereof, the entire

service rendered by the petitioners will have to be counted for the

purpose of seniority.

(j)Despite acknowledging the Petitioners’ valid

promotions, the Tribunal did not appropriately address the

seniority list, resulting in contradictions.

(k) Attempts were made by the PDCs to submit

relevant documents demonstrating the increase in permanent

posts, but the Government did not produce them. Though some

of the documents were produced by the Government, same do

not deal with conversion of the posts of Deputy Collectors into

‘permanent posts’, but they deal with creation of posts of Deputy

*148* WP DC PROMOTIONS

Collectors on ‘temporary basis’.

(l)The Petitioners respect this Court’s decision not to

call for additional records from the Tribunal.

(m) One Mr.Waman Kadam, who was senior to

Petitioner No.2 (Pandurang Kulkarni) was given a deemed date

of promotion vide the order dated 24.06.2010. It is only and only

when, the junior is promoted in a substantive capacity, the

question of deemed date comes into play, and not otherwise.

Therefore, on this count as well, promotions of the Petitioners

cannot be considered to be either 'adhoc' or ‘fortuitous’.

(n)Government circulars dated 11.06.1993 and

06.06.2002 and the meeting proceedings dated 14.09.2009,

confirm that the Petitioners’ promotions were substantive, not

‘adhoc’.

(o)The case of Mr. Jairam Vinayak Deshpande decided

by the Tribunal at the Principal Seat in Original Application

No.573/1999 supports the Petitioners’ contentions that their

promotions were not ‘adhoc’.

(p)On 15.04.1999, the DPC was properly convened

under the Government Resolution dated 03.03.1999, for

considering the claims of the eligible Tahasildars for promotion

*149* WP DC PROMOTIONS

to the posts of Deputy Collectors, which culminated in

promotions of the Petitioners, on 08

th

and 9

th

July, 1999. As such,

the Petitioners’ promotions followed proper procedures, making

the claim of fortuitous promotions untenable.

(q)The Tribunal’s finding regarding ineligibility of the

Petitioners to be considered for promotion, lacks merit, as it

ignored substantial affidavits and evidence on record.

(r)The Petitioners never feared reversion. Therefore,

the observations of the Tribunal about reversion, are absolutely

out of context.

(s)In so far as the nomination of IAS is concerned, the

career-graph in the cadre of Deputy Collectors is significant and

not merely the career-graph of Additional Collectors. This fact

has been lost sight of by the Administrative Tribunal.

(t)Loss of opportunity to be considered for IAS

nomination is indeed a cause, which was required to be taken

into consideration by the Administrative Tribunal. However, it

having failed to consider the same, intervention of this Hon'ble

Court is inevitable.

(u)Once the Tribunal disapproves the method of

determining seniority impugned before it, as an inevitable

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consequence thereof, the impugned seniority list must have been

quashed and set aside. Seniority in the cadre of Deputy

Collectors continues to assume significance, till an incumbent

enters in IAS cadre.

(v) If there is an illegality in determination of seniority,

the question of adjusting equities becomes absolutely irrelevant.

As such, the Tribunal is not expected to adjust the equities, as it

does not have any such powers akin to the powers of the

Honourable Supreme Court under Article 142 of the Constitution

of India.

(w)In the process of satisfying everybody, although the

Administrative Tribunal disapproved the method of preparing

seniority list and holding the appointments of the Petitioners to

be in a substantive capacity, declining to set aside the impugned

seniority list, is indeed a blunder, warranting intervention of this

Court to subserve the ends of justice and also to set the things in

order by appropriately issuing directions to remove absurdity in

the impugned decision.

(x)Though the Tribunal did not quash the impugned

seniority list, but directed the State Government to remove the

remark ‘fortuitous service’ against the names of the incumbents

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at Serial Nos.582 to 700. This has resulted in yet another irony,

inasmuch as, junior incumbents to the Petitioners become regular

before the Petitioners and the seniors continue to be adhoc.

(y)The learned Member (Administration) had no

justification to record the findings contrary to the pleadings on

record, once he is a party to the decision rendered with

consensus.

(z)Whether, at any point of time during last 20 years or

more, inclusion of Petitioner No.2 or any of the Petitioners was

ever a subject matter of challenge before any of the Court or

Forum and a candid answer to the query is ‘NO’. Therefore, the

issue cannot be permitted to be opened after 20 long years,

during which the Respondents have chosen to accept the

position, without a slightest protest thereto.

(aa)Direct Recruits were given deemed date of

promotion in the cadre of Deputy Collectors much latter in point

of time, than the conferment of Selection Grade on the

Petitioners promotees. Never ever grant of Selection Grade to the

Petitioners PDC was the subject matter of challenge, and

therefore, surreptitious change in the approach of the

Government in the year 2018 or there about, and an attempt to

*152* WP DC PROMOTIONS

advocate the cause of the direct recruits, is beyond

comprehension of a man of ordinary prudence.

(bb)If the permanent posts were 514 since long, then

there was no necessity of appointing the Petitioners as Tahsildars.

Having regard to the number of vacancies available then, from

day one in the year 1994, the Petitioners promotees will have to

be considered or treated as Deputy Collectors. This has a

significance with Sub Rule 2 of Rule 4 of 1977 Rules, which

requires the Government to determine the 'permanent posts' in

the cadre in advance, so as to send a requisition to the Public

Service Commission for selecting particular number of

candidates.

79. We had raised certain queries, which are reflected in

our order dated 28.06.2024. The learned Advocate Shri A.S.

Deshpande submitted that the Petitioners (original Applicants)

are unable to locate from the impugned judgment, despite

reading it over and over again, any such finding concluding that

the Applicants are not aggrieved parties. All the prayers put forth

by them have been considered by the Tribunal, except the prayer

for quashing the impugned seniority list. He adds that, however,

*153* WP DC PROMOTIONS

the Tribunal has observed that the Applicants do not have a

surviving cause of action. This conclusion was founded on the

statement made on behalf of the State Government in it’s

affidavit in reply dated 01.02.2022 filed by Mr.Madhav Veer, that

none of the Applicants or the Respondents before the Tribunal

would be reverted and hence, the Tribunal held that the

Applicants do not have a surviving cause of action.

80. Shri Deshpande further submits that the seniority list

dated 31.12.1998, has attained finality and there has been no

challenge to the same. The circular dated 29.06.2010 is a

testimony of the said seniority list being crystallized. This has

also been reiterated in the impugned seniority list vide paragraph

Nos.7.1 and 7.2. Paragraph Nos.11 and 20 of the affidavit in

reply of the State Government before the Tribunal crystallize the

said issue.

81. Shri Rajadhyakshya, the learned Senior Advocate,

submits that it was the statement of the State Government before

the Tribunal that none of the Applicants would be reverted. He

submits that the Petition filed by Nitin Gunaji Mahajan (Writ

*154* WP DC PROMOTIONS

Petition No.12699/2022) concerns the issue as to how the

seniority list in the cadre of Deputy Collectors, which includes

PDC and DDC, ought to be compiled when the class of PDC and

DDC have merged for the first time for the purpose of the

seniority. He points out that the Tribunal has held in the

impugned judgment (paragraph Nos.73-74) that, “The method

adopted by Respondent No.1 to reckon the seniority of PDC from

the date of their absorption in the permanent posts is apparently

contrary to the provisions in the Recruitment Rules. We,

therefore, disapprove the same and declare it to be invalid and

unsustainable.”

82. With regard to the fate of the seniority list of Deputy

Collectors dated 31.12.1998, Shri Rajadhyakshya submits that

the same has been finalized on 29.06.2010, which is apparent

from the circular dated 31.12.2020 (clauses 7.1 and 7.2) and

paragraphs 11 and 12 of the affidavit in reply filed by the State.

83. The learned Senior Advocate Shri Apte confirms the

contentions of Shri Deshpande and Shri Rajadhyakshya. He

further points out the circular dated 25.04.2014 and submits that

*155* WP DC PROMOTIONS

the combined seniority list for the period 01.01.1999 to

31.12.2000 was confirmed. Earlier seniority lists have been

referred to while concluding below paragraph No.3 as under:-

“३.

सदर ज्येष्ठतासूची म

.ना.से. (

ज्येष्ठतेचेविनियमन

)

१९८२ मध्ये

विहित के लेली सर्वसाधारण तत्वे आणिखालील बाबीविचारात घेऊन तयार

करण्यात आली आहे

.

१)

ज्येष्ठतासूचीत नमूद अधिका

-

यांपैकी सरळ सेवा प्रविष्ट उप

जि

ल्हाधिका

-

यांची महाराष्ट्रलोकसेवा आयोगानेनिश्चित के लेल्या गुणवत्ता

यादीप्रमाणे त्यांची आपआपसातील ज्येष्ठता राखण्यासाठी त्यांना

समायोजितदिनांक देऊन ज्येष्ठतानिश्चित करण्यात आली आहे

.

२)

पदोन्नत अधिका

-

यांच्या बाबतीत सामान्यतः त्यांच्या रुजू

दिनांकानुसार तथापिनिवडसूचीतील क्रम कायमठेवून ज्येष्ठतानिश्चित

करण्यात आलेली आहे

.

परंतु एखाद्या ज्येष्ठ अधिका

-

यास पदोन्नतीचे आदेश

काढल्यानंतर पदोन्नतीच्या पदावर रुजू होण्यासाठी प्रशासकीय कारणास्तव

विलंब झाला असल्याचेनिदर्शनास आणल्यासवआयुक्तांनी त्याची योग्य ती

छाननी के ली तर त्यांची आपसातील ज्येष्ठता कायम राखण्यासाठी

आयुक्तांच्या अहवालाप्रमाणे त्यांना समायोजित तारखा देऊन त्यांची ज्येष्ठता

निश्चित करण्यात येईल

.”

84. Below clauses 4, 5 and 6 of the circular dated

25.04.2014, objections were called for and it was apprised to all

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that the seniority list would be confirmed after considering the

objections.

85. It was after taking into account the objections, the

seniority list for the period 01.01.1999 to 31.12.2000, was

confirmed. He further submits that the DDCs are accepting the

impugned seniority list dated 31.12.2020, but are not in

agreement with the preamble to the extent it maintains that the

seniority list for the period 01.01.1998 to 31.12.1998 is final.

They cannot selectively accept few portions of the seniority list

only to the extent it gives them an advantage. The original

Applicants had prayed for quashing of the seniority list. This

prayer was considered by the Division Bench of the Tribunal and

there is no dispute between the members that the impugned list

does not deserve to be quashed and set aside. He further submits

that the impugned seniority list has been rightly prepared on the

basis of the statutory Rules of 1977.

86. Shri Sapkal, the learned Senior Advocate submitted

in rebuttal, on the basis of the gist set out in the brief written

notes tendered to the Court, that the conditional promotion orders

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have been issued in the past more than three decades and no right

of seniority or pay fixation of the cadre of the Deputy Collector

would accrue in favour of the PDC. Once the original Applicants

have accepted conditional promotion orders, they are estopped

from denying the applicability of the conditions imposed upon

them. Since the State has considered the rules of 1977 framed

under Article 309 of the Constitution of India, the original

Applicants cannot claim to have entered into the cadre of Deputy

Collectors on the basis of the provisional promotion orders. He

further submits that the seniority list as on 31.12.1998, ought to

have been modified and revised as per paragraph No.6 of the

circular dated 29.06.2010. The seniority list as on 31.12.1998,

cannot be said to have attained finality. Considering the

statement of the State Government before the Tribunal that the

PDC would not be reverted, the State Government has to stand

by it’s statement.

CONCLUSIONS

87. We have considered the extensive submissions of the

learned advocates and have referred to the pleadings before the

Tribunal as well as the analysis of the Tribunal in the impugned

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judgment, which also comprises of a separate portion authored

by the learned Member (Administrative). As is visible from the

judgment, both the members have agreed that the Original

Applicants have not suffered any legal injury and yet, the

Tribunal has opened the whole issue that travels over a period of

more than 30 years. It is also obvious that the Tribunal has not

entertained both the Applications and has left the impugned

seniority list, untouched.

88. The first and foremost issue to be considered by the

Tribunal was as to whether, any legal injury was caused to the

original four Applicants. Applicant Nos.1 and 2 were appointed

as Tahsildar and they assumed office on 02.03.1994. Technically,

they completed five years on 01.03.1999. They were appointed as

Deputy Collectors on 08

th

July, 1999. They were promoted as

Additional Collector on 30.01.2020. Similar is the case of the

two Applicants in T.A. No.02/2021.

89. It is undisputed that they were promoted on

temporary basis. The temporary promotion order of these four

Applicants in the cadre of Deputy Collectors hinges on the fact

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that it was purely a temporary promotion as is mentioned in their

orders as ‘

निव्वळ तात्पुरत्या स्वरूपात पदोन्नती

’. This can neither be

contradicted, nor have the four Applicants adverted to the

contrary. So also, their orders clearly indicate that their

temporary promotion was subject to the approval of the MPSC.

There is no controversy that no such approval was given by the

MPSC as there was no consultation between the DPC and the

MPSC. It was also set out that their temporary promotion would

not create any equities or rights in their favour and that would not

improve their seniority or salary structuring (see paragraph No.8

of this judgment). Be that as it may, the State made a statement

before the Tribunal that, no matter what may be the irregularities

in the ad-hoc promotions of the PDCs, none would now be

reverted. A statement made on behalf of the State Government,

is found in it’s affidavit in reply dated 01.02.2022, filed by

Mr.Madhav Veer, that none of the Applicants or the Respondents

before the Tribunal would be reverted. We have every reason to

be circumspect as to how would the State cope up with the huge

mess created by innumerable ad-hoc promotions made over the

past 30 years. Nevertheless, the assurance of the State that none

would be reverted, has dispelled the apprehension of the 4

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Applicants.

90. It cannot be lost sight of, that, if the challenge posed

by these four Applicants is held to be devoid of merits, their

petitions (Transfer Applications) will have to be dismissed. If

their claim is rejected by this Court, the further issues as regards

the legality and validity of the seniority order dated 31.12.2020,

need not be subjected to any further scrutiny.

91. In Ajinkya Natha Padwal (supra), the Bombay

High Court left it open to the State Government to take an

independent decision whether to make promotions on ad-hoc

basis pending finalization of the seniority list. It is undisputed

that several ad-hoc promotions have been effected by the State

Government in the last four decades. The temporary promotion

orders issued to these four Applicants, was under a caveat of the

approval of the competent authority, keeping in view the

language used ‘

सक्षम प्राधिकरणाच्या मान्यतेने तदर्थपदोन्नत्या देण्यात

’

येत आहेत

. It is also undisputed that the first ad-hoc promotion of

these four Applicants from the Tahasildar to Deputy Collector on

09.07.1999, was de-hors the requirement of consultation and

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approval by the competent authority.

92. Under sub-rule (2) of Rule 9 of the 1977 Rules, the

Committee that was constituted by the State with the intent and

purpose of formalizing the select list of Tahasildars so as to be

promoted as Deputy Collectors, was to meet in the month of

September of 1999 and not there before. However, a meeting of

the DPC was held on 15.04.1999 and the select list was prepared,

de-hors Rule 9(2). The DPC, by holding a meeting on

15.04.1999, apparently overlooked possible candidates who

could have been considered if the meeting was held in

September, 1999, under Rule 9(2). The promotion orders were

issued on 09.07.1999. Both the learned Members of the Tribunal

have concluded that there is a deviation from the Recruitment

Rules. The distinction, however, is that the learned Member

(Judicial) treated such deviation as a minor contravention/

irregularity, whereas, the other learned Member (Administrative)

has concluded that the Applicants were not eligible for inclusion

in the final combined seniority list prepared as per Rule 8(4), so

as to be placed for consideration of the DPC, for promoting them

to the cadre of Deputy Collectors.

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93. Considering the submissions of the four original

Applicants, coupled with the submissions of the other non-

Applicants and the Petitioners before us and taking into account

the undisputed fact situation emerging from the record and the

1977 Rules, it cannot be contradicted that the ad-hoc promotion

of the four Applicants (viz. Shivaji T. Shinde appointed as a

Tahasildar on 12.07.1995 and promoted on ad-hoc basis as

Deputy Collector on 30.08.2001, Sunil V. Yadav appointed as a

Tahasildar on 08.08.1995 and promoted on ad-hoc basis as

Deputy Collector on 30.08.2001, Samiksha R. Chandrakar

appointed as a Tahasildar on 24.02.1994 and promoted on ad-hoc

basis as Deputy Collector on 08.07.1999 and Pandurang R.

Kulkarni appointed as a Tahasildar on 31.05.1994 and promoted

on ad-hoc basis as Deputy Collector on 08.07.1999), was de-hors

the Rules.

94. It cannot be ignored that 75 days time is required to

prepare the final combined seniority list. These Applicants were

appointed as ad-hoc PDC in the hurriedly convened DPC on

15.04.1999, which is in contravention of the Rules. As such,

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since the final selection list was not formalized in compliance

with the Rules while preparing the select list, these four

Applicants cannot be said to have been appointed as PDC in

deference to the Rules applicable.

95. In this legal and factual backdrop, though the four

Applicants may be aggrieved because of being pushed down by

the impugned seniority list dated 31.12.2020, thereby giving

them a cause to approach the Tribunal, the fact remains that their

grievance is misconceived and unsustainable. Had it been the

case that the placement of these 4 Applicants in the seniority list

of the cadre of Dy. Collectors had some bearing on the ad-hoc

promotion already granted to them, it could have been said that

the cause of action was surviving for them to prosecute the 2

applications. Now, the Applicants have also crossed that hurdle

and have already entered into the cadre of Additional Collector.

As assured by the Government, they are not to be reverted.

96. It cannot be contradicted that, on the one hand, the

State found it convenient to resort to ad-hoc promotions, perhaps

out of necessity, and on the other hand, the State had no reason to

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act in undue haste and prepare the select list, not in ignorance,

but by overlooking and ignoring the 1977 Rules. Even otherwise,

these four Applicants were only engaged as ad-hoc PDC

(temporary promotion as Promotee Deputy Collectors) as a stop-

gap arrangement, which does not justify the contention that they

should be treated as validly promoted Deputy Collectors.

Admittedly, since a select list as prescribed by sub-rule (7) of

Rule 9 was prepared, apparently without consultation with the

MPSC, these four Applicants could not have been in the final

select list. This defeats the claim of these four Applicants to be

treated as being regularly promoted Deputy Collectors w.e.f.

30.08.2001 (first two Applicants) and 08.07.1999 (other two

Applicants) in view of proviso (i) below Rule 10(1) of the 1977

Rules.

97. It is evident that there was no consultation of the

State with the MPSC, while including these four Applicants in

the select list, before determining the final select list of the

Tahsildars under sub-rule 7 of Rule 9. So also, no review of their

services was carried out as per Rule 12 of the 1977 Rules.

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98. The proviso (i) and (ii), to Rule 10(1) of the Rules of

1977, provide for filling up the vacancies in the cadre of Deputy

Collectors purely as a stop-gap arrangement. However, proviso

(i) indicates that only an officer in the cadre of Tahasildar whose

name has been included in the combined final seniority list

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

Collector on a stop-gap basis. The Applicants were not eligible

for appointment even on stop-gap basis on the post of Deputy

Collector under proviso (i) of Rule 10.

99. On the one hand, though the Rules mandate that the

Applicants deserve to be reverted back to the cadre of Tahasildar,

this would amount to turning the clock back by more than 2

decades, which may lead to multiple administrative

complications. On the other hand, accepting the claim of the

Applicants to grant them seniority w.e.f. their date of joining the

cadre of Deputy Collectors, would amount to injustice to the

DDC. Regularization of the PDC in the combined seniority list

seems to be the only plausible way out which has been

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apparently accepted by most of the PDC, except these four

Applicants.

100. In a recently delivered judgment by the Honourable

Supreme Court (Coram : Dr.Dhananjaya Y. Chandrachud, Vikram

Nath and B.V. Nagarathna, JJJ) in Malook Singh and others vs.

State of Punjab and others (supra), a reference was made by

the Honourable Court to the judgment delivered by the Court in

Direct Recruit Class II Engineering Officers’ Association vs.

State of Maharashtra, (1990) 2 SCC 715, and more particularly

paragraph Nos.13 and 47, reproduced in this judgment in

paragraph No.19 herein above. It was, thus, concluded in

Malook Singh (supra), that when the initial appointment is only

ad-hoc and not according to the Rules and made as a stop-gap

arrangement, the officiation in such post cannot be taken into

account considering the seniority.

101. In Union of India and another vs. Professor S.K.

Sharma, AIR 1992 SC 1188, the Honourable Supreme Court

concluded that the seniority of an appointee is to be reckoned

from the date of his regular appointment and not from the day he

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officiated on ad-hoc/ officiating basis.

102. The names of these four Applicants had not been

included in the select list of Tahsildars, if any, as per Rule 9(3)

(iii), since their names did not appear in the final combined

seniority list of Tahsildars which has to be prepared under Rule

8(4). Nevertheless, now that they have become Additional

Collectors and with the assurance from the State that they will

not be reverted, the impugned seniority list, hardly dents their

career chances. Therefore, it can be concluded that the four

Applicants cannot be said to be aggrieved in order to have a

cause to question the impugned seniority list. When the seniority

of these Applicants, was not likely to be adversely affected

because of any change in their position in the impugned seniority

list of Deputy Collectors, in fact, no cause of action would

survive for the said applicants to pray for setting aside the

impugned seniority list.

103. Three judgments of the Supreme Court, viz. (i)

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

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

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

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

lay down the law that the ‘services rendered on adhoc basis

cannot be considered for the purpose of reckoning seniority’.

104. The Tribunal has unanimously concluded that the

four Applicants did not have any locus-standi to challenge the

impugned final list dated 31.12.2020 and the final seniority list

dated 03.03.2018. These four Applicants were in excess of the

quota and, therefore, they would be eligible for regularization

from the dates a permanent vacancy arose within their quota.

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

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

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

quota.

105. The officers who are awaiting their promotion to the

post of Dy. Collector Selection Grade, are working on the post

PDC for more than 17-18 years. As such, we do not apprehend

that the chances of their promotion to the post of Selection Grade

Dy. Collector, could be affected. Once these officers are

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promoted to the post of Dy. Collector Selection Grade, the

criteria would be ‘merit’ and not ‘seniority’, for their further

promotion to the post of Additional Collector.

106. In M.S.L. Patil, Asstt. Conservator of Forests,

Solapur (Maharashtra) and others vs. State of Maharashtra

and others, (1996) 11 SCC 361, it is observed that even if many

years have passed in the PDC cadre, if there is no review, the

result of returning back as Tahsildar, has to follow. However, this

would have disastrous effects on every PDC and DDC. Noticing

this impact, the State Government declared before the Tribunal

that none of the these officers would be reverted, which includes

the 4 Applicants before the Tribunal.

107. The direction issued by the Tribunal to prepare a

fresh seniority list from 2004, was nobody’s prayer before the

Tribunal. So also, this would surely impact those PDCs/DDCs,

who were not before the Tribunal. Moreover, when the Tribunal

has held that the four Applicants did not have the ‘locus standi’

and had no cause of action, it could not have granted any relief

indirectly to the Applicants, which they could not have been

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granted directly.

108. The effect of the irregularities in the ad-hoc

promotions of the 4 Applicants is writ large. The Tribunal has

dealt with the factors indicating the irregularities in details. We

have, as well, adverted to the same as we recorded the

contentions of the learned Advocates, elaborately. While

exercising Supervisory jurisdiction and not Appellate

jurisdiction, we cannot interfere in a judgment only because a

different view is possible, and more so when a plausible view has

been taken.

109. In the backdrop of this settled position of law, we

have considered the views expressed by the two learned

Members of the Tribunal. Much ado has been made by the

litigating parties before us, contending that two divergent views

have been expressed by the two learned Members. We do not

entirely agree with this submission. Both the learned Members

have expressed their findings in different ways. Finally, the

learned Member (Administrative) has handed down a concurring

judgment.

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110. We agree with the view taken by the Tribunal that

the very transition of these 4 Applicants, from Tahsildars to

promotee deputy Collectors, is an irregularity. The seniority list

dated 31.12.1998, has attained finality and there has been no challenge

to the same. The circular dated 29.06.2010 is a testimony of the said

seniority list being crystallized. This has also been reiterated in the

impugned seniority list vide paragraph Nos.7.1 and 7.2. Paragraph

Nos.11 and 20 of the affidavit in reply of the State Government before

the Tribunal, crystallized the said issue. In the light of the same, the

impugned final seniority has been settled. The grievance of these

4 Applicants is, therefore, baseless and does not deserve

consideration. Except these 4, all other PDCs have accepted the

impugned seniority list.

111. We need to consider another angle, as to whether the

Tribunal could have made suggestions and issued directions,

when it had come to a conclusion that both the Applications

deserved to the rejected. Once the Tribunal came to a conclusion

that the grievance of the 4 Applicants is unsustainable, it should

not have travelled any further as their Applications deserved no

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consideration. Therefore, issuing guidelines and suggestions, was

unwarranted, more so, when all those who would be affected by

such suggestions or directions, were not before the Tribunal.

112. Consequentially, when the challenge posed by the

four Applicants had been rejected, the Tribunal could not have

travelled beyond their prayers. Since we have concluded that

both the Transfer Applications of these four Applicants deserve to

be rejected, the suggestions put forth by the Tribunal below

paragraph No.87 and the consequential order below paragraph

No.88, deserve to be quashed. There was no reason, in our view,

for the learned Tribunal to make suggestions when the impugned

seniority list was not to be interfered with or set aside.

113. The law is clearly laid down in Kusum Ingots

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

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

others, 2018 SCC Online Bombay 6400 and United Forum

and others vs. The Union of India and others, 2018 SCC

Online Bombay 2221, that the Court should decide an issue if

there is a cause of action and should refrain from taking up an

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issue which is purely academic in nature.

114. In view of our conclusions in this judgment and as

both the Transfer Applications fail, we have no reason to deal

with the other contentions made by the private parties/ Petitioners

before us. The grievance of these four Applicants as against the

impugned seniority list dated 31.12.2020, is unsustainable. Both

the Transfer Applications, on this ground, deserve to be

dismissed.

115. Writ Petition Nos.11692/2022 and 11762/2022,

filed by the State, are allowed. Accordingly, the two Transfer

Applications stand dismissed. Consequentially, the suggestions/

directions issued by the learned Tribunal in paragraph Nos.87

and 88, are quashed and set aside. Rule is made absolute in

these two petitions.

116. In view of the above analysis and our conclusions,

Writ Petition No.12699/2022, filed by Mr. Nitin Mahajan v/s

State of Maharashtra and others, does not deserve consideration.

Moreover, with our conclusions recorded above, no purpose

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would be served in entertaining this Petition. Therefore, Writ

Petition No.12699/2022, stands disposed off. Rule is

discharged in this petition.

117. In view of the above, Writ Petition No.9163/2022

(filed by Samiksha Ramakant Chandrakar and another), Writ

Petition No.9631/2022 (filed by Vijaysingh Shankarrao

Deshmukh), Writ Petition No.9632/2022 (filed by Tushar

Eknath Thombre), and Writ Petition No.12675/2022 (filed by

K. K. Suryakrishnamurty), are dismissed. Rule is discharged in

these four petitions.

118. After this judgment was pronounced, the learned

Senior Advocate Shri Rajadhyaksha, representing the Petitioner

in Writ Petition No.12699/2022, Shri Ajay S. Deshpande, the

learned Advocate representing the Petitioners in Writ Petition

No.9163/2022 and Shri Avinash S. Deshmukh, the learned

Advocate, representing Respondent Nos.3 and 4 in Writ Petition

No.9632/2022 and Respondent Nos.1 and 2 in Writ Petition

No.11692/2022, prayed for staying the operation of this

judgment.

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119. The learned Senior Advocate Shri R.S. Apte,

representing the State of Maharashtra as a Special Counsel along

with the learned Senior Advocate Shri P.R. Katneshwarkar and

the learned Senior Advocate Shri V.D. Sapkal, submit that the

Original Applications (Transfer Application Nos.1/2021 and

2/2021), were dismissed by the learned Maharashtra

Administrative Tribunal vide the impugned judgment dated

26.08.2022. There has been no protective order passed by the

learned Tribunal thereafter. When the parties reached this Court

in these petitions, there was no interim order operating. At the

same time, the judgment of the learned Tribunal impugned in

these petitions, was also not stayed.

120. The learned Senior Advocate Shri Rajadhyaksha and

the learned Advocate Shri Deshpande, raised a question as to

why did the State not issue any orders of promotion when there

were no prohibitory orders from this Court. In our view, this

question cannot be posed to the Court. It is between the parties

and the State. This Court had never passed any order in the

nature of either staying the judgment of the Tribunal or

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injuncting the State Government from issuing promotion orders.

121. In fact, the learned Senior Advocate Shri Apte had

suggested before this Court on 31.01.2024 that any further

development that may take place with regard to the promotions

of eligible candidates, can be made subject to the result of these

petitions. In short, neither the judgment of the learned Tribunal

dismissing the Original Applications, was kept in abeyance, nor

had this Court issued any injunctory order. We have not issued

any order or direction to any of the parties before us. We have

only upheld the verdict of the Tribunal, which had dismissed the

2 proceedings before it. Hence, no orders.

(Y.G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)

(Kalyan Sangvikar, PS)