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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, M.S.KARNIK, JJ.
Shri Noreshwar Raghunathrao Shende - Petitioner
Versus
Shri Sudhakar Baburao Nangnure - Respondents
WRIT PETITION NO. 8859, 8860, 9291 OF 2016
Decided On : 16-11-2017
SERVICE - SENIORITY - PROMOTION - CONSEQUENTIAL SENIORITY - RESERVATION ACT - FORTUITOUS APPOINTMENT - CIRCULAR DATED 27/10/2008 QUASHED - PROMOTION OF PETITIONER BASED ON CIRCULAR - SUBSEQUENT QUASHING OF CIRCULAR - WHETHER CONSEQUENTIAL SENIORITY CAN BE CHALLENGED WITHOUT CHALLENGING PROMOTION ORDER - WHETHER DELAY IN FILING OA CAN BE CONDONED - HELD, PROMOTION ORDER CANNOT BE CHALLENGED WITHOUT CHALLENGING PROMOTION ORDER - DELAY IN FILING OA CANNOT BE CONDONED.
Fact of the Case:
Petitioner, belonging to SC category, was promoted as JDTP on 11/8/2011, after changing the reservation from ST to SC in accordance with the circular of 2008. Respondent No.1, belonging to Open Category, was promoted as JDTP with effect from 2/7/2013. Respondent No.1 was senior to the petitioner in the feeder cadre post of Deputy Director, Town Planning. The provisional seniority list of JDTP was published on 14/6/2014 when the petitioner was shown as senior to the respondent No.1. No objections were raised to the said provisional seniority list. The final seniority list of JDTP was published on 28/8/2014 when the respondent No.1 was shown senior to the respondent No.1. On 13/1/2015, the provisional seniority list of JDTP as on 1/1/2015 was published which also was not objected by the respondent No.1. On 15/1/2016, the final seniority list as on 1/1/2015 was published where after the representation was made by the respondent No.1 on 11/2/2016. The O.A. is filed on 12/2/2016 before the Tribunal.
Finding of the Court:
The Tribunal was not justified in proceeding on the footing that the appointment of the petitioner is a fortuitous appointment being in contravention of the Recruitment Rules. Whether the order of promotion is valid or invalid is required to be adjudicated before going into the question of legality of the seniority list. In our opinion, the Tribunal ought to have dismissed the O.A. on the count that the order of promotion dated 11/8/2011 which forms the basis of the seniority has not been challenged. In the light of the view taken by us the O.A. must fail on the ground that the promotion order dated 11/8/2011 has not been challenged. In this view of the matter the cause of action would relate back to 11/8/2011. Consequently the O.A. must also fail on the ground of delay as the delay has been explained only from 28/8/2014. In our opinion even this delay has not been explained satisfactorily. We find that the Tribunal was not justified in condoning the delay in filing the O.A.
Issues: 1. Whether consequential seniority can be challenged without challenging promotion order? 2. Whether delay in filing OA can be condoned?
Ratio Decidendi: 1. Without challenging the promotion order dated 11/8/2011 of the petitioner, the Tribunal was not justified in proceeding on the footing that the appointment of the petitioner is a fortuitous appointment being in contravention of the Recruitment Rules. 2. The Tribunal was not justified in condoning the delay in filing the O.A.
Final Decision: Writ Petition No.8860/2016 and Writ Petition No.9291/2016 are allowed. The impugned order dated 2/5/2016 (corrected vide order dated 16/6/2016) passed by the Maharashtra Administrative Tribunal, Mumbai, in O.A.No.269/2016 is quashed and set aside. Consequently, O.A.No.269/2016 is dismissed. Writ Petition No.8859/2016 is allowed in terms of prayer Clause (b). Rule accordingly made absolute with no order as to costs.
M.S. KARNIK, J.
1. Rule; Rule made returnable forthwith by consent of the parties and heard finally.
2. At the outset we note that the Apex Court by the order dated 9th October, 2017 has directed that the present petitions be heard and disposed of within 10 days from 31st October, 2017. The petitions have been taken up for final hearing at the stage of admission.
3. The petitioner in Writ Petition No. 8860/2016 is the original respondent No.4 in O.A. No.269/2016 filed by the present respondent No.1 before Maharashtra Administrative Tribunal ('the Tribunal' for short). To appreciate the controversy involved it would be material to reproduce the reliefs claimed by the respondent No.1 before the Tribunal, which reads thus :
“(a) to allow the Original Application.
(b) to quash and set aside the final impugned final seniority list as on 1/1/2015 published by the res.no.1 on 15/1/2016 for the cadre of Joint Director of Town Planning as unconstitutional and illegal and bad in law and also as contrary to the settled legal position in law so far as the consequential seniority for the reserved category promotes is concerned, as settled by the Constitution Bench of the Hon. Supreme Court in the case of M. Nagaraj V/s Union of India.
(c) To direct the Respondent no.1 to review and revise the impugned seniority list for the cadre of Joint Director of Town Planning as on 1/1/2015 by fixing the seniority of the applicant above the Respondent no.4 in conformity with their seniority position in the feeder cadre of Deputy Director of Town Planning and enforce the same expeditiously by processing the selection and consideration for promotion to the post of Director of Town Planning on the basis of the said review and revision of the seniority list for the feeder cadre of Deputy Director of Town Planning.
(d) To restrain the Respondent no.1 from undertaking the exercise of selection and consideration for promotion for the post of Director of Town Planning on the basis of the final seniority list as on 1/1/2015 published by the Respondent no.1 on 15/1/2016 for the cadre of Joint Director of Town Planning, till the said list is reviewed and revised as prayed herein before.”
4. During the course of the hearing of O.A.No.269/2016 the respondent No.1 in Writ Petition No.8860/2016 filed Misc. Application No.170/2016 for condoning the delay of 199 days occasioned in filing the O.A. By the order dated 13/4/2016 the Tribunal was pleased to condone the delay. Being aggrieved by the order dated 13/4/2016, the petitioner has filed Writ Petition No.8859/2016.
5. The State of Maharashtra is the respondent No.2 in Writ Petition No.8860/2016, has filed Writ Petition No.9291/2016 challenging the impugned order dated 2/5/2016 passed by the Tribunal in O.A.No.269/2016. Thus, the petitioner as well as respondent No.2 State of Maharashtra are aggrieved by the impugned order dated 2/5/2016 have filed separate petitions challenging the same order.
6. As the issues involved in these petitions are common and interlinked, the parties are referred to as per their respective position in the cause title in Writ Petition No.8860/2016 for convenience.
7. The brief facts necessary for deciding the present Writ Petitions are stated thus:
The petitioner belongs to the Scheduled Caste (S.C.) Category. The respondent No.1 belongs to Open Category. As on the date of the filing of the O.A. No.269/2016 on 12/3/2016, the respondent No.1 was working as the Joint Director of Town Planning ('JDTP' for short) since 3/7/2013. The petitioner was junior to the respondent No.1 in the cadre of Deputy Director as per seniority list published on 14/2/2011. One Shri K.S. Akode was promoted by an order dated 25/11/2004 in the post reserved for S.C. When Shri Akode was promoted as Director of Town Planning, the reserved post of JDTP was filled by promoting Shri Shikhare, who also belonged to S.C. Category. On retirement of Shri Shikhare, the post was filled by promotion of the petitioner who also belo
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