Seniority is determined by the actual date of appointment, not by the date of selection; alterations to the seniority list must conform to established regulations.

JUDGMENT :

SACHIN S. DESHMUKH, J.

1. Heard. Rule. Rule made returnable forthwith. By consent of the parties, the petition is heard finally at the stage of admission.

2. The petitioners are aggrieved by the order dated 02/01/2023, issued by the respondent - Maharashtra Housing and Area Development Authority (MHADA), by which the respondent Nos.4 to 12 are promoted to the post of Assistant (Class-III) in ignorance of the seniority of the petitioner, by virtue of their continuous officiation.

3. Mr. Bhandarkar, learned Counsel for the petitioners submits that the respondent – MHADA had issued advertisement dated 29/08/2008 inviting applications for filling up 121 posts including posts of clerk. The said advertisement contains various stipulations including Stipulation Nos.12 and 13, which specify that the candidates belonging to reserved category will be appointed subject to submission of caste validity certificate and its verification by the concerned Committees. Accordingly, the petitioners herein were appointed in the year 2010, whereas the respondent Nos.4 to 12 are concerned, the appointments were issued at a deferred juncture i.e. in 2013. So far as the petitioner Nos.1 and 2 are concerned, they were appointed on 11/11/2010, whereas petitioner No.3 was appointed on 20/04/2011. Appointments of respondent Nos.4 to 12 were deferred on account of the fact that they belong to reserved category on respective dates of appointment. As such, in the wake of mandate of Clause 13 of the advertisement till the respective respondents were armed with the caste certificate and its validity, their appointments were deferred.

4. Further submissions on behalf of petitioners is that considering the actual date of officiation, initially the seniority list was prepared by the respondent – MHADA, depending upon the actual officiation of its employees and the said seniority list was finalized in December, 2013. In the said seniority list, the name of petitioner No.1 finds place at serial No.11, petitioner No.2 at serial No.32 and petitioner No.3 at serial No.48, whereas the respondent Nos.4 to 11 were at serial Nos.58, 88, 61, 59, 62, 44, 45 and 92 in the seniority list.

5. Having considered the seniority of the petitioners herein, which was finalized by the end of December, 2013 it appears that thereafter seniority list was prepared on the basis of merit of the candidates/employees in select list and eventual promotion orders were issued. The same was put to revision on 21/04/2015. During the process of revision of the seniority list, the determination of seniority was done and the office noting as has been recorded in the minutes establishes the fact that the officiation of the petitioners herein is recorded from April, 2011, whereas in case of candidates belonging to the reserved category, the date of actual appointment which is essentially preceded by the validity certificate in that regard, as such was deferred. Resultantly, it was noted that the appointments of respondent Nos.4 to 12 were at a deferred juncture on account of stipulation No.13 mandating that the candidates/employees belonging to the reserved category to submit validity certificate before issuance of actual appointment, therefore, the deemed date of appointment cannot be conferred upon respondent Nos.4 to 12, who were admittedly appointed after the present petitioners herein. In ignorance of the impact of deferred appointment and eventual officiation of the respondent Nos.4 to 12 the seniority list was prepared in accordance with the Rules framed by MHADA, more particularly