2019 Supreme(SC) 648

SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, Hemant Gupta, JJ.
Sudhakar Baburao Nangnure - Appellant
Versus
Noreshwar Raghunathrao Shende & Ors. - Respondents
Civil Appeal Nos. 2468-2470 of 2019 (Special Leave Petition (Civil) Nos. 8769-8771 of 2018) with Civil Appeal Nos. 2471-2473 of 2019 (Special Leave Petition (Civil) Nos. 14041-14043 of 2018) and with M.A Nos. 2983-2985 of 2018 (Special Leave Petition (Civil) Nos. 33086-33088 of 2017)
Decided On : 05-03-2019

IMPORTANT POINTS
When Supreme Court granted liberty to pursue an issue by way of a suitable remedy in law it means remedy by way of review.
When while giving liberty Supreme Court mentions that it has not considered merits of the issue it means that the issue has been kept open.
When Supreme Court gives liberty to approach High Court in review of its judgment for considering issue urged but not considered in original judgment and Supreme Court not considering merits of the case; appeal against decision in review as well as the original decision by High Court will be maintainable.
Neither catch-up rule nor consequential seniority are elements of clauses (1) or (4) of Article 16, Constitution of India.
A Government Resolution cannot be challenged indirectly.
Eligibility for promotion has to be considered on the date of the occurrence of the vacancy.
Belated claims are liable to be declined.
Argument without pleading cannot succeed.

Headnote:(a) Constitution of India - Article 226 r/w section 114, CPC - Review - Appellant having grievance that submissions urged before High Court as regards ‘catch-up rule’ had not been considered - Granted liberty by Supreme Court to pursue a suitable remedy in law - Means remedy by way of review - While giving liberty Supreme Court mentioning that it has not considered merits of the case - Meaning thereby that question of catch-up rule was kept open. (Para 17, 18)

       (b) Constitution of India - Article 226 and 136 - Supreme Court giving liberty to approach High Court in review of its judgment for considering issue urged but not considered in original judgment - Supreme Court not considering merits of the case - Held, appeal against decision in review as well as the original decision by High Court will be maintainable. (Para 19, 22, 27)

       (2004) 13 SCC 675; (2008) 3 SCC 108; (2012) 12 SCC 378; (2014) 7 SCC 701; (2016) 4 SCC 696 - Distinguished

       (c) Service law - Appointment - Reservations in promotional posts - Article 16(4-A), Constitution of India - Enabling States and UTs to make provisions for reservation in promotion. (Para 34)

       1992 Supp. (3) SCC 217 - Referred

       (d) Service law - Catch-up Rule - A general category candidate senior to reserved category candidate - Reserve candidate getting promotion earlier - General category candidate will not lose his seniority and regain it on his promotion. (Para 37, 38, 39)

       (1999) 7 SCC 209 - Relied upon

       1992 Supp. (3) SCC 217; (1995) 6 SCC 684; (1996) 2 SCC 715 - Referred

       (1997) 6 SCC 538 - Distinguished

       (e) Service law - Reservation - Neither catch-up rule nor consequential seniority are elements of clauses (1) or (4) of Article 16, Constitution of India - However, State must demonstrate in each case the existence of compelling reasons, namely (i) backwardness; (ii) inadequacy of representation; and (iii) overall administrative efficiency by quantifiable data before providing for reservation. (Para 40, 41)

       (2006) 8 SCC 212 - Relied upon

       (2018) 10 SCC 396; (2011)1 SCC 467; (2012) 7 SCC 1; (2015) 10 SCC 292; (2017) 4 SCC 620 - Referred

       (f) Maharashtra Civil Services (Regulation of Seniority) Rules 1982 - Rule 4 - Provision for consequential seniority - Can be incorporated in an executive order issued under Article 162, Constitution of India - GR dated 20 March 2003 - Seniority of reserved candidates on promotion need not be revised - Seniority between backward class and non-backward class candidates in promotional cadre would be governed by the regular date of promotion - Not abrogated by Reservation Act, 2004. (Para 50, 60)

       1992 Supp. (3) SCC 217 - Relied upon

       (g) Jurisprudence - Challenge to consequential seniority - No challenge to the Government Resolution incorporating the principles of consequential seniority - A Government Resolution cannot be challenged indirectly - Such challenge which might result in upsetting a policy circular must be specific - Such challenge held impermissible. (Para 64, 65)

       (2011)1 SCC 467; (2012) 7 SCC 1; (2015) 10 SCC 292; (2017) 4 SCC 620 - Relied upon

       (h) Service law - promotion - Eligibility - To be considered on the date of the occurrence of the vacancy - First respondent promoted as JDTP in 2011 - Appellant promoted in 2013 - vacancy of DTP arising in 2016 - Appellant not fulfilling minimum eligibility criteria - Appellant challenging seniority in 2016 - High Court rightly declining to allow the seniority to be challenged so belatedly. (Para 78, 79)

       (1980) Suppl.SCC 449; (1977) 3 SCC 255; (2010) 1 SCC 417 - Relied upon

       (i) Jurisprudence - First respondent appointed as JDTP on the basis of a circular - Circular subsequently struck down by High Court - Appellant not challenging appointment of first respondent as JDTP - Not open to appellant to challenge the appointment after stricking down of circular. (Para 79)

       (2013) 5 Mh LJ 640 - Referred

       (j) Directorate of Town Planning and Valuation (Recruitment) Rules 2011 - Rule 3 - Eligibility for promotion to DTP - Three years experience as JDTP - Appellant not completing three years on date of vacancy - Plea of jointly considering experience as DDTP and JDTP for determining eligible for promotion to DTP - Impermissible. (Para 81)

       (1988) 2 SCC 233 - Relied upon

       (k) Administration of justice - Judicial propriety - Argument without pleading - Cannot succeed. (Para 83)

       (l) Service law - Promotion to DTP - Appellant not challenging appointment of first respondent as JDTP - Nor challenging relevant GR - Not eligible for promotion on relevant date - Held, now cannot challenge appointment of first respondent as DTP. (Para 85)

       (2004) 10 SCC 734; (2013) 2 SCC 516; (2007) 3 SCC 557; (2015) 4 SCC 515 - Referred

       Facts of the case:

       The appellant as well as the first respondent are officers in the service of the Government of Maharashtra. The appellant belongs to the open category while the first respondent belongs to a Scheduled Caste.

       The appellant joined service as a Planning Assistant in the Government of Maharashtra on 6 May 1983. Both the appellant and the first respondent were selected for the post of Town Planner on 1 July 1992. The appellant was promoted as Deputy Director of Town Planning (DDTP) on 1 November 2003, by a nomination through the MPSC. The first respondent was promoted as DDTP on 3 August 2006.

       In the promotional cadre of Joint Director of Town Planning (JDTP), there were two posts, one for open category candidates and the second for reservation on roster points. On 7 January 2011, the post of JDTP was vacant for a Scheduled Tribe candidate under the roster. However, relying upon a circular dated 27 October 2008 of the General Administration Department (GAD), the name of the first respondent was recommended on 7 January 2011. Though the first respondent belongs to a Scheduled Caste, he was promoted on an ad-hoc basis to the post of JDTP on 11 August 2011. On 2 July 2013, by virtue of a Government Resolution (GR) dated 29 December 2012, the cadre strength of JDTP was enhanced to eight posts, of which five posts were meant for the open category while three posts were reserved. On 2 July 2013, the appellant was promoted to the post of JDTP.

       Essentially, the case of the appellant is that in the seniority list of DDTPs, he ranked senior to the first respondent. The first respondent was promoted as JDTP on 11 August 2011 while the appellant was promoted later on 2 July 2013. The appellant claims that once he was promoted as JDTP, the 'catch-up' rule must govern and in consequence, he must gain seniority over the first respondent.

       After lodging an objection to the seniority list dated 15 January 2016, the appellant filed an Original Application (O.A. 269 of 2016) before the Tribunal.

       The Tribunal allowed the OA. It quashed the seniority list dated 15 January 2016 of JDTPs and issued directions for the preparation of a fresh seniority list by deciding the date of regular promotion of the first respondent, whereupon a fresh promotion order was directed to be issued to the post of DTP.

       The first respondent instituted proceedings (Writ Petition No. 8859 of 2016 was instituted to challenge the order of the Tribunal condoning delay; Writ Petition No. 8860 of 2016 was instituted against the judgment of the Tribunal in OA No. 269 of 201) under Article 226 of the Constitution before the High Court to challenge the decisions of the Tribunal. The State government challenged the decision of the Tribunal (Writ Petition No. 9291 of 2016).

       The High Court allowed the writ petitions and set aside the decision of the Tribunal. Supreme Court granted certain liberties to the appellant.

       In terms of the liberty granted by this Court, the appellant moved the High Court in review. The review petitions were dismissed.

       Finding of the Court:

       It is not open to appellant to challenge appointment of first respondent.

       Result: Appeals dismissed. MA disposed of.