Harish
Maganlal Baijal Vs. State of Maharashtra & Ors. [2010] INSC 367 (7 May
2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(C)
No.6556 of 2008 Harish Maganlal Baijal ... Petitioner State of Maharashtra
& Ors. ... Respondents
ALTAMAS
KABIR, J.
1. The
petitioner appeared in the Maharashtra State Service (Main), Examination, 1990,
which was held for the filling up of 22 posts of Deputy Superintendent of
Police/Assistant Commissioner of Police, Class-I. In his application, the
Petitioner 2 gave his first preference for appointment to the post of Deputy
Superintendent of Police (DSP)/ Assistant Commissioner of Police, Class-I, and
his second preference for the post of Sales Tax Officer, Class-I. Having secured
604 marks, the Petitioner did not qualify for one of the 14 vacancies in the
open category and was placed immediately after the list of successful
candidates. Out of the 22 vacant posts, the first 14 posts were for candidates
from the open category and 8 posts were reserved for candidates from the
Scheduled Caste and Scheduled Tribes and Other Backward Classes categories.
2. Since
there were only 14 vacancies in the open category for the post of DSP, the
Petitioner in keeping with his second preference, was appointed as Sales Tax
Officer, Class-I, and he joined his duties in the said post on 22nd April,
1992.
3. Of the
14 candidates selected in the open category in the post of DSP, 3 candidates, 2
from the open category and one from the reserved category, were found to be
physically unfit for the said post. On coming to learn of the above, the
petitioner made a representation to the Minister of Home Affairs on 21st June,
1992, asking that the Maharashtra Public Service Commission be directed to
recommend names from the 1990 batch according to the merit list, to fill up the
vacancies caused.
The
Petitioner and two others were thereupon recommended by the Commission by its
letter dated 6th November, 1992, and called upon by the State Government to
join duty as DSP/Assistant Commissioner of Police, Class-I, as replacement
candidates, and although the formalities for appointment were completed in
December, 1992, appointment letter was issued to the Petitioner only on 30th
August, 1993, and the Petitioner joined his duties in the post of DSP on 15th
September, 4 1993. In the letter of recommendation written by the Maharashtra
Public Service Commission on 6th November, 1992, it was categorically mentioned
that the replacement candidates were to be placed after the respondent No.8,
Madhukar Shankar Talpade, despite the fact that the petitioner had obtained
higher marks than Shri Talpade in the examination.
The said
fact came to the petitioner's knowledge after the publication of the
provisional gradation/seniority list.
4. The
provisional gradation/seniority list of the cadre of DSP/Assistant Commissioner
of Police (Unarmed) came to be published by the Secretary, Home Department,
Maharashtra State, in which the Petitioner was placed at serial No.238 and the
Respondent Nos.5, 6, 7 and 8, who were from the same batch as the Petitioner,
were shown at serial nos.200, 201, 202 and 203, respectively. From the said
seniority list, it further transpired that 5 candidates from serial Nos.188 to
202 were all from the same batch of direct recruits appointed in the year 1992.
However, although the Respondent No.7 (Mr. Kumbhare) had joined the service on
15th September, 1993, along with the Petitioner, he was given seniority with
effect from 15th July, 1992, along with the other batch mates of 1990 on the
basis of contemporaneous merit/rank position prepared by the Maharashtra Public
Service Commission, the Respondent No.4 herein. According to the Petitioner, if
the same yardstick, as was applied in Mr. Kumbhare's case, had been applied to
the Petitioner, his name would have appeared after Sanjay Devidas Baviskar, who
had secured 605 marks and was placed at serial No.199 and before Sanjay
Yashwant Gaikawad Aparati, the Respondent No.5, who having obtained 603 marks
was placed at serial No.200. It is the Petitioner's case that having obtained
higher marks than the Respondent No.5, he should have been placed at serial
No.200 of the 6 gradation list instead of the Respondent No.5.
5.
Aggrieved by the above, the Petitioner made a representation to the Maharashtra
Public Service Commission, but the same was rejected in June, 2003, on the
ground that the seniority position assigned to the Petitioner was in keeping
with the recommendation made by the Secretary, Home Department, Maharashtra
State and could not, therefore, be changed.
6. Being
dissatisfied with the manner in which his representation had been rejected, the
Petitioner filed an application before the Maharashtra Administrative Tribunal,
Aurangabad, being Original Application No.556 of 2003. The said application was
subsequently transferred to the Maharashtra Administrative Tribunal, Mumbai,
and renumbered as O.A. No.78 of 2004. A similar application being O.A. No.867
of 2003 was filed by one Mahesh R. Ghurye. By a common judgment and order dated
16th 7 September, 2004, the Maharashtra Administrative Tribunal, Mumbai Bench,
rejected the Petitioner's Application. The writ petition filed by the
Petitioner before the Bombay High Court in this regard was rejected by an order
dated 8th January, 2008, which has been impugned in the instant Special Leave
Petition.
7.
Appearing in support of the Special Leave Petition, Mr. Srenik Singhvi, learned
Advocate, urged that under Rule 4(2) of the Maharashtra Civil Services
(Regulation and Seniority) Rules, 1982, the Petitioner was entitled to be
placed in the seniority list in accordance with the marks obtained by him in
the 1990 examination.
Therefore,
the direction given by the Maharashtra Public Service Commission to place the
Petitioner below the last candidate out of the 22 candidates selected was not
only erroneous, but arbitrary and in violation of the above-mentioned Rule. Mr.
8 Singhvi submitted that the learned Tribunal had erred in dismissing the
Petitioner's Original Application.
8. As far
as the High Court is concerned, Mr. Singhvi submitted that it had proceeded on
the erroneous basis that the Petitioner had been selected from the waiting list
of candidates, whereas the Petitioner was one of the originally selected
candidates, but could not be appointed on account of the number of vacancies.
Learned counsel submitted that the gradation list prepared by the Respondent
No.2 was, therefore, liable to be set aside with a direction to place the name
of the Petitioner at serial no.200 instead of serial No.238. It was submitted
that since Mr. Kumbhare's appointment was withheld on account of the
discrepancy in his caste certificate, he could not have been given seniority
over the Petitioner who joined his duties as Sales Tax Officer, Class-I, on 9
22nd April, 1992, and was, thereafter, issued appointment letter in the post of
DSP on 30th August, 1993. Mr. Singhvi submitted that had the disqualification
of the three candidates been taken into consideration at the time of
preparation of the select list, the Petitioner would have been within the first
14 candidates from the open category on account of the marks obtained by him in
the examination conducted in 1990 for filling up the 22 vacant posts. Instead,
a direction was given by the Respondent No.2 to place him below Mr. Kumbhare,
who had obtained lower marks than the Petitioner.
9. Mr.
Singhvi also submitted that although Mr. Kumbhare had joined as D.S.P. on 15th
September, 1993, along with the Petitioner, he had been given seniority with
effect from 15th July, 1992, along with his other batch mates while the
Petitioner was 10 given seniority from the date of his appointment as D.S.P.
10. In
support of his submissions, Mr. Singhvi referred to and relied on the decision
of this Court in P.M. Latha vs. State of Kerala [(2003) 3 SCC 541], in which
the equitable relief granted to certain candidates holding a higher
qualification than was required was deprecated by this Court and such
appointments were set aside upon it being observed that equity and law are twin
brothers and law should be applied and interpreted equitably, but equity cannot
override written or settled law.
11. Mr.
Singhvi submitted that the order passed by the Secretary, Home Department,
Maharashtra State, which was later confirmed by the Administrative Tribunal and
the High Court, was liable to be set aside along with the order passed by the
Tribunal and the High Court.
11 12. As
against Mr. Singhvi's submissions, Mr. Vineet Dhanda, learned counsel, who
appeared for the respondent Nos.5 to 8, submitted that as would be evident from
the seniority list of DSPs and ACP Police Officers (Unarmed) published on 1st
February, 2001, that candidates who had been selected for the first 14 posts,
which were reserved for candidates from the open category, had obtained higher
marks than the petitioner. It is thereafter that the remaining posts, which
were reserved for candidates from the Scheduled Castes and Scheduled Tribes
categories, were filled up with candidates from the reserved category who had
obtained less marks than was obtained by the petitioner. Mr. Dhanda submitted
that from the said seniority list it would be clear that Shri Madhukar Shankar
Talpade was the last Scheduled Caste candidate to be appointed, whose marks
were less than that obtained by the petitioner. However, the 12 said
eventuality was on account of the fact that of the 22 vacancies, the first 14
were meant for candidates from the open stream, whereas the next 8 posts were
reserved for candidates from the Scheduled Castes and Scheduled Tribes
categories.
13. It
was submitted that not having been selected for the post of DSP, the petitioner
had been appointed to the post of Sales Tax Officer, Class- I, which was his
second preference. It is only on account of fortuitous circumstances, when
three of the original candidates selected, two from the open category and one
from the reserved category, were found to be ineligible for appointment, that
the petitioner and two others were recommended by the Maharashtra Public
Service Commission for appointment to the post of DSP. Mr. Dhanda submitted
that not having been initially selected, the petitioner could not claim
seniority over those 13 candidates who had been selected at the initial stage.
14.
Similar submissions were advanced on behalf of the State of Maharashtra by Mr.
Arun R. Pednekar and, in addition, it was pointed out that even if the three
disqualified candidates had not been considered initially, the petitioner would
still not have been included among the first 14 candidates since there were
others before him from the open category who had obtained higher marks than
him. It was urged that the last recommended candidate for the post of DSP/ACP
in the open category had secured 610 marks and there were three other
candidates from the open category above the petitioner who had obtained higher
marks than the petitioner, so that even if the candidates who had been
subsequently found ineligible had been considered at the first instance, the
petitioner would not have found a place within the first 14 14 candidates who
were to be appointed from the open category.
15. It
was lastly contended that having regard to the submissions advanced on behalf
of the petitioner vis-`-vis his appointment as DSP along with the respondent
No.7 Mr. Kumbhare, the petitioner had, no doubt, joined his duties on the same
day as Mr. Kumbhare, but Mr. Kumbhare was a candidate from the Scheduled Caste
category and had, therefore, been included in the select list for appointment
subject to verification of his Caste Certificate. It was submitted that Mr.
Kumbhare's
case stood on a different footing from that of the petitioner and the
contention of the petitioner in this regard had been rightly rejected both by
the Tribunal as well as the High Court.
16.
Having carefully considered the submissions made on behalf of the parties, we
see no reason to interfere with the order of the Tribunal as 15 affirmed by the
High Court. Admittedly, out of all the 22 vacant posts, the first 14 posts were
to be filled up by candidates from the open category and the remaining 8
vacancies were reserved for Scheduled Caste and Scheduled Tribes candidates.
The last
candidate to be included in the first 14 vacancies had obtained 610 marks,
whereas the petitioner had obtained 604 marks. In between the last candidate
and the petitioner there were 3 other candidates who had obtained 608, 607 and
605 marks, respectively, so that, in any event, even if the 3 ineligible candidates
had been excluded from the very beginning, the petitioner still could not have
been included among the first 14 candidates, particularly when one of the
ineligible candidates was from the Scheduled Caste and Scheduled Tribes
category.
17. Apart
from the above, the selection of the petitioner along with two other candidates
as 16 substituted candidates in place of the three ineligible candidates, was
under fortuitous circumstances since the original selection had already been
made and in keeping with the marks obtained by him and his second preference,
the petitioner had been appointed as Sales Tax Officer, Class-I and he, in
fact, joined in the said post on 22nd April, 1992. The petitioner`s contention
that since both Mr. Kumbhare and he had joined the post of DSP on 15th
September, 1993, their seniority should have been reckoned from the same day
was rightly rejected both by the Tribunal and the High Court, having regard to
the fact that while Mr.
Kumbhare
had been included in the first select list and his appointment was also
deferred on account of verification of his Caste Certificate, the appointment
of the petitioner who had already been appointed and was functioning as Sales
Tax Officer, Class-I, in the post of DSP, was accidental in view of the ineligibility
of three candidates who had 17 been included in the initial list of selected
candidates. His claim for seniority could, therefore, be reckoned only from the
date of his joining his duties as D.S.P.
18. It is
also to be kept in mind that Mr. Kumbhare had been initially selected for one
of the reserved posts from the Scheduled Castes and Scheduled Tribes category
and his appointment had only been deferred for verification of his Caste
Certificate.
In the
case of the petitioner it was different, in that, he was never included in the
initial selection list as a result whereof he was appointed as Sales Tax
Officer, Class-I, on account of the marks obtained by him and his position in
the list of candidates who were successful in the examination conducted by the
Maharashtra Public Service Commission in 1990. In our view, the view taken by
the Tribunal as well as the High Court in 18 this regard is the correct view
and needs no interference.
19. Even
the petitioner's contention that he should have been placed above Mr. Talpade
lacks merit, since Mr. Talpade was included in the original list from the
Schedule Castes category and he was, therefore, entitled to be placed before
the petitioner in the gradation list from the date of his joining as D.S.P. The
reference made by Mr.
Singhvi
to Rule 4(2) of the Maharashtra Civil Services (Regulation of Seniority) Rules,
1982, does not also help the petitioner's case. Rule 4 of the said Rules deals
with the general principles of seniority. Sub-Rule (2) of Rule 4, which deals
with inter se serniority of direct recruits selected in one batch for
appointment to any post, cadre or service, reads as follows :
19
"4. General principles of seniority :
(1)
......
(2)
Notwithstanding anything contained in sub-rule (1),- (a) the inter se seniority
of direct recruits selected in one batch for appointment to any post, cadre or
service, shall be determined according to their ranks in the order of
preference arranged by the Commission, Selection Board or in the case of recruitment
by nomination directly made by the competent authority, the said authority, as
the case may be, if the appointment is taken up by the person recruited within
thirty days from the date of issue of the order of appointment or within such
extended period as the competent authority may in its discretion allow;
(b) The
inter se seniority of Government servants promoted from a Select List shall be
in the same order in which their names appear in such Select List. If the
Select List is prepared in two parts, the first part containing the names of
those selected unconditionally and the second part containing the names of
those selected provisionally. All persons included in the first part 20 shall
rank above those included in the second part:
Provided
that, if the order in which the names are arranged in the select List is
changed following a subsequent review of it, the seniority of the Government
servants involved shall be rearranged and determined afresh in conformity with
their revised ranks;
(C) The seniority
of a transferred Government servant vis-`-vis the Government servants in the
posts, cadre or service to which he is transferred shall be determined by the
competent authority with due regard to the class and pay-scale of the post,
cadre or service from which he is transferred, the length of his service
therein and the circumstances leading to his transfer."
20. From
the aforesaid provisions, it will be apparent that the same refer to the
seniority of recruits selected in one batch. In the petitioner's case, he was
not so selected, but was brought in as a replacement candidate, not from any
waiting list, but from the list of successful 21 candidates in the examination
held as per the marks obtained by them on the basis of the representation made
by him to the Home Minister on 21st June, 1992.
The
aforesaid Rule, therefore, has no application in the petitioner's case despite
the fact that the successful candidates as well as the petitioner were from the
same batch.
21. For
the aforesaid reasons, the Special Leave Petition must fail and is,
accordingly, dismissed.
There
will, however, be no order as to costs.
................................................J. (ALTAMAS KABIR)
................................................J.
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