Partly allowed

Sudhir Nathu Raktate v. State of Maharashtra and Ors.

Bombay HC9 Mar 2018WP/1545/2000

Case brief

AI extract

What is this about?

The Court quashed the Administrative Tribunal's finding that a prior High Court judgment was in personam. It directed the State to revise lists to consider the petitioner for Deputy Collector post without backward pay, or default on beneficiary amenities.

What did the court decide?

Quashed the order of A.T. Holding judgment was in personam. Directed respondents to consider petitioner for Dy. Collector post and grant notional benefits.

Sudhir Nathu Raktate Vs State of Maharashtra… — Pension and Retirement Benefits | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1545 OF 2000

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Sudhir S/o Nathu Raktate
Age : 45 years, Occ : Govt. Service,
(Deputy Collector)
at present working as
Special Land Acquisition Officer
at Nashik, Dist. Nashik (Minor Irrigation),
(Minor Irrigation)

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...PETITIONER

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 VERSUS

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1.The State of Maharashtra,
Through its Secretary,
General Administration Department
Mantralaya, Mumbai.

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2. Maharashtra Public Service Commission Office at Bank of India Building Mahatma Gandhi Road, Mumbai-23.

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...RESPONDENTS

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 ...
Mr.Sujeet D. Joshi Advocate for Petitioner.
Mr.V.S. Choudhari, A.G.P. for Respondent
Nos.1 and 2.

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...

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CORAM: S.S. SHINDE AND

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 S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 28TH FEBRUARY, 2018.
 DATE OF PRONOUNCING JUDGMENT: 9TH MARCH, 2018.

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JUDGMENT [PER S.S. SHINDE, J.]:

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This Petition is filed with the following

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prayers :-

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“B)Issue writ of certiorari or any order,

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direction or writ in the nature of writ of
certiorari and call for relevant records
from the respondents and after perusal
quash the direction in the Notification
Ex.”H” dt. 19.5.1987 to the extent that the
benefit of the judgment reported at A.I.R.
1984, Bombay page 434, Exh.B read with
Judgment of Supreme Court of India Exh.C is
prospective and hence the selection list
prior to 19.10.1984 ought not to be
revised.

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C)Call for Record and proceeding of

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Transfer Application No.2309/1992 (Writ
Petition No. 1831/1987) from the file of
Maharashtra Administrative Tribunal, Bombay
and after perusal quash and set aside the

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Judgment Exh.”L” dt. 6.1.2000.

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D)Issue a writ of mandamus or any other

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order, direction or writ in the nature of

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writ of mandamus to both respondents
directing to revise the selection list of

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batch of 1982 by ignoring the 46%
reservation made in favour of Economically
weaker section society, struck down.

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E)Issue a writ of mandamus or any other,

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direction or writ in the nature of writ of
mandamus directing respondents to give
appointmenttothepetitioneras

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Probationery Dy. Collector with effect from
21.8.1984 with consequential service
benefitsincludingpromotionsand

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difference of pay.

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G)Issue Notice of contempt under Article
215 of the Constitution of India against

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the respondent no.1 and its concerned
officers for not giving effect to Judgments

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Exh.”B” and Exh.”F” pertaining to the
selection list of 1982 batch to which the
petition belongs and pass appropriate order
as regards punishment as deemed fit.”

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2.The brief facts leading to file the
present Petition, as stated in memo of the
Petition, in brief, are as under :-

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It is the case of the petitioner that,

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his date of birth is 19th December, 1955 and place
of birth is situate in Ahmednagar district. In the
contest of reservation, he belongs to advanced
classes coming in general category. The petitioner
passed his M.A. from University of Bombay in June,

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1977. The petitioner also passed LL.B. from
University of Bombay in the year 1981. Respondent

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no.1 through respondent no.2 issued an
advertisement on 17thMarch, 1982, inviting

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applications for combined competitive examination
for the posts of Probationery Dy. Collectors,

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Probationery Tahsildars and other posts. By this
advertisement 80% posts were reserved, leaving
only 20% posts for general category. Total number
of posts for Probationery Dy. Collector were 22,
leaving only 4 posts unreserved, and out of 18
reserved, 7 were reserved for economically weaker
section of the society. Further there were 13
posts of probationery Tahsildars, out of which
only two posts were unreserved, and amongst
reserved posts, four posts were reserved for
economically weaker section of the society.

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3.It is the case of the petitioner that,

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the reservation for economically weaker section

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was to the extent of 46% and along with other
reservation, the total reservation was 80%, which
was contrary to the law laid down by the Supreme

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Court of India in catena of judgments. According

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to the petitioner, Article 16(1) of the

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Constitution of India provides that there shall be
equality of opportunity in matters relating to

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employment or appointments to posts under the
State employment. Article 16(4), however carves an
exception by allowing the State in making any
provision for the reservation of appointments or
posts in favour of any section of the society not
adequately represented in the services/employment
under the State. Persons belong to `economically
weaker’ section of society by itself, do not come
within the scope of Article 16(4) of the
Constitution of India.

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It is the case of the petitioner that,

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one Shivaji and another filed Writ Petition
No.2180/1983 (Shivaji and another V/s Chairman,
Maharashtra Public Service Commission, and
another) against the respondents in the Bombay
High Court. The Division Bench of the Court on 3rd
April, 1984 struck down the reservation in respect
of economically weaker section.

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It is the case of the petitioner that,

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4.

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Respondent No.1 then filed Civil Appeal
No.4117/1984 (State of Maharashtra and another V/s
Shivaji Y. Garje and Anr.) in the Supreme Court of
India, which came to be decided on 19th October,
1984, upholding the judgment of the High Court,

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except some observations and concessions made pursuant to submissions made by the Additional Solicitor General, for stepping down reservation for economically weaker section of society from 46% to 21%. However, after the said judgment of the Supreme Court no policy decision to provide for 21% reservation has been taken by respondent no.1, nor any notification has been issued in this behalf. As a result, the reservation made in respect of economically weaker section of society is illegal and non est.

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5. It is the case of the petitioner that, examination and selection for the post of probationery Dy. Collectors and Probationery Tahsildars was one and the same, and first 22

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persons in merit list were to be given an

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appointment as probationery Dy. Collectors, while

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remaining 13 persons were to be given an
appointment as probationery Tahsildars. In other
words, in all 35 persons were to be selected and

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first 22 persons were to be appointed in higher
grade of probationery Dy. Collector. The
petitioner, however came to be appointed as
Probationery Tahsildar at Sr.No.1 of the
recommended merit list of the posts of Tahsildar

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with effect from 21st April, 1984, when he took
charge of the said post.

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6.It is the case of the petitioner that,

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the selection process by which he was selected for

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the post of Tahsildar, the preliminary
examinations were held on 20th June, 1982 and
further written examination was held on 25th
December, 1982. Thereafter, respondent no.2
published the mark list, wherein the petitioner
had secured 461 marks out of 751 marks. Respondent

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No.2 then recommended appointment of 22 persons as

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probationery Dy. Collectors. The merit list
itself would show that number of persons shown in

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the list of probationery Dy. Collectors had
secured marks less than the petitioner, and
consequently by reducing the reservation of
economically weaker section by 30%, at least,
though it should be 46% as stated above, the
petitioner ought to have been appointed as
probationery Dy. Collector. It is the further case
of the petitioner that, the petitioner had secured
461 marks and consequently in order of merit, he

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ought to have been placed at Sr. No.9 in the list
and given appointment to the post of probationery
Dy. Collector, which is denied to him.

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7.It is the case of the petitioner that,

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the first eight persons in the said list consists
of four general category, two economically weaker

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section of society and two O.B.C. There were no
reservation, as such, for O.B.C. Candidates.

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Reservation of 34% is for S.C., S.T., D.T. and
N.T. The judgment and order in Writ Petition
No.2180/1983 (Shivaji and another V/s Chairman,
Maharashtra Public Service Commission, and
another) was delivered on 3rd April, 1984, and it
became effective immediately and was binding on
the respondents. It is the case of the petitioner
that, the petitioner came to be appointed keeping
inviewtheGovernmentResolution

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No.RCT/1283/4519/e-1 on 23rd April, 1984, which was

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issued 20 days after the High Court struck down
the reservation of 46% in favour of economically

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weaker section of society. As already stated, the

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High Court judgment came to be confirmed by
Hon'ble Supreme Court. As per the directions of
the High Court in the operative part, the lists
then existing should have been revised, including
that of the petitioner, and he ought to have been
appointed as probationery Dy. Collector at Sr.
No.9.

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8.It is further the case of the petitioner

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that, the judgments of the High Court and the
Supreme Court are as regards the candidates from
batch of 1979, however, the principle is
applicable to the later two selection process and
batches of 1980-81 and 1982. The judgments of High
Court and the Supreme Court of India were acted
upon, and interpreted by the Division Bench of the
High Court on 25th February, 1987, in Writ Petition

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No. 1544/1984 (Dilip Shivlal V/s The State of
Maharashtra and another). The said Writ Petition
was filed by the candidate, who pertains to batch
of 1982. The petitioner was also selected in same
selection process in which the petitioner in Writ
Petition No.1544/1984 (Dilip Shivlal V/s The State
of Maharashtra and another) was selected. The
High Court in para 3 of the said judgment directed

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respondent no.1 to prepare a revised list of
candidates, who would qualify for the selection,

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in consultation with Maharashtra Public Service

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Commission. The direction is as regards all the

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candidates of batch of 1982 and not restricted to
the case of petitioner in W.P. No.1544/1984 (Dilip

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Shivlal V/s The State of Maharashtra and
another). It would cover the case of petitioner as
well. The said decision of the High Court is
binding upon the Respondents in respect of all the
similarly situated candidates belong to 1982
batch.

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9.It is further the case of the petitioner

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that, Respondent No.1 filed Civil Misc. Petition
No.20374/86 on 1st May, 1986 in the Supreme Court

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of India seeking relief in the nature of
clarification that, the judgment of the High Court
was prospective in its application. However, said
application came to be rejected on 29th September,
1986, whereby the Supreme Court refused to
entertain the said application. It is the case of
the petitioner that, in contravention to the order

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passed by the Supreme Court in the said Civil
Application, respondent no.1 on 19th May, 1987

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issuedNotificationNo.1086/2709-CN/75/16A,

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stating that the revision of the lists were not

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called for or necessary as the judgment of the
Supreme Court would operate prospectively.

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10.It is the case of the petitioner that, on

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plain and correct interpretation of the Judgment
passed by the Supreme Court, it is crystal clear
that, Hon'ble Supreme Court has confirmed the
Judgment of High Court thereby striking down 46%
reservation for economically weaker section. The
aforesaid exposition of law by the Supreme Court

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had struck down the reservation in favour of
economically weaker section with an immediate
effect from the date i.e., 19.10.1984 of
pronouncement of judgment and as yet no policy
decision has been taken by respondent No.1.
Respondent No.1 has not acted upon the Judgment
dated 25th February, 1987 in Writ Petition No.
1544/1984 (Dilip Shivlal V/s State of Maharashtra
and another) passed by the High Court. If the

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list is revised then the petitioner ought to have
been appointed as Dy. Collector with effect from
21.8.1984, when he took charge of Probationary
Tahasildar. As the respondents have not acted
upon the said Judgment, they have committed the
contempt of High court under Article 215 of the
Constitution of India for which proper action may
be taken.

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11.According to the petitioner, he had given

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first preference to the post of Probationary Dy.
Collector, but he was not selected for that post,

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as there were only 4 posts of Probationary Dy.
Collector available for general category.
Petitioner would have been selected, had there

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been two more posts for general category, as he
was placed at Sr. No.1 of the list of Probationary
Tahsildar or immediately below the list of
Probationary Dy. Collectors. In case the direction

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given by the High Court on 25.02.1987 in Writ
Petition No. 1544/1984 (Dilip Shivlal V/s State of

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Maharashtra and another) is implemented, then
Respondent No.2 must have sent revised list to
Respondent No.1, but it appears that, Respondent
No.1 possibly has not acted thereon in view of
Notification dated 19.05.1987. At any rate the
provisionsinNotification,showingthe

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declaration of not revising the list prior to
19.10.1987 is illegal, and therefore, is liable to
be quashed and set aside.

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12.The petitioner is entitled to get

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exemption from undergoing common Revenue Officers
Departmental Examination and common training
courseforProbationaryTahsildarsand
Probationary Dy. Collectors, the reason being that
after his appointment as Probationary Tahsildar

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the petitioner has already undergone the said
training course in April 1985.

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13.Thepetitionerfiledhisfirst

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representation on 26.02.1985, which came to be

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replied by Respondent No.1 on 02.05.1985.
Thereafter, the petitioner submitted another
representation dated 15.04.1986, but no heed is
given to the said representation. Therefore, the
petitioner filed Writ Petition No.1831 of 1987 at

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the Principal Seat of the High Court at Bombay, in
which `Rule’ was issued and subsequently said
petition came to be transferred to Maharashtra
Administrative Tribunal, Bombay, and the same
came to be renumbered as Transfer Application
No. 2309 of 1992. The said Application has been
dismissed by the Maharashtra Administrative
Tribunal on 6th January, 2000.

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14.Learned counsel appearing for the

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petitioner, relying upon the judgment of the
Division Bench in the case of Dilip Shivlal V/s
State of Maharashtra and another in Writ Petition

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No.1544 of 1984, decided on 25th February, 1987,
submits that, the petitioner therein is from the
batch of the petitioner, in as much as, he

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appeared for the examination with the petitioner
in the year 1982. It is submitted that, the
directions issued by the High Court in the case of
Dilip Shivlal (supra) would cover the case of the
petitioner as well. The said decision of the High
Court is binding upon Respondents. Respondents
were obliged to follow the said decision and
prepare the revised list of candidates eligible to
fill up the posts in consultation with the
Maharashtra Public Service Commission. Therefore,
according to learned counsel appearing for the

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petitioner, the conclusion reached by the Maharashtra Administrative Tribunal that the judgment in the case of Dilip Shivlal (supra) is a judgment in personam and not in rem, is not legally sustainable. Learned counsel invites our attention to the exposition of law by the Supreme Court in the case of State of Uttar Pradesh and

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others V/s Arvind Kumar Srivastava and others1

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and submits that, the Supreme Court held that,

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1 (2015) 1 SCC 347

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normal rule is that when a particular set of
employees is given relief by court, all other
identically situated persons should be treated
alike by extending same benefit since not doing so
would amount to discrimination and be violative of
Art. 14 of the Constitution. Therefore, learned
counsel submits that, the Petition deserves to be
allowed.

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15.On the other hand, learned A.G.P.

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appearing for the Respondent – State, relying upon
the averments in the affidavit in reply, submits

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that, the decision of the High Court in the case of Dilip Shivlal (supra) is not applicable in the case of the petitioner, since the said judgment was in personam and not in rem . It is further submitted that, the Government of Maharashtra by

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issuing Government Resolution in the year 1987
clarified that, the judgment of the Supreme Court

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in the case of Dilip Shivlal (supra) would apply
prospectively and not with retrospective effect.

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It is submitted that the petitioner is not from

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the batch of 1989, and therefore, he cannot derive
the benefits from the judgment of the Supreme
Court. Learned A.G.P. invites our attention to the
averments in the affidavit in reply, and submits
that, the Petition deserves to be dismissed.

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16.We have carefully considered the

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submissions advanced by learned counsel appearing
for the petitioner and learned A.G.P. appearing
for Respondent Nos.1 and 2. We have carefully
perused the averments in the Petition, grounds

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taken therein, annexures thereto, Reply filed by
Respondent No.1 and the rejoinder affidavit filed
by the petitioner. We find considerable force in
the argument of learned counsel appearing for the
petitioner that, reservation provided in the
advertisement/selection process of 1982, for
Economically weaker section was to the extent of

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46% and along with other reservation the total
reservation was 80% which was contrary to the law

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laid down by the Supreme Court of India in Catena
of matters which has pegged reservation to maximum

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55% excess reservation therefore of 25% is contrary to law and therefore non est .

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17.Upon careful perusal of the order passed

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by the Maharashtra Administrative Tribunal in
Transfer Application No.2309/1992, which was filed
by the present petitioner, it appears that, the
Tribunal framed as many as four issues for its
consideration, viz:- (1) Whether applications are
barred by limitation?, (2) Whether, the judgments
of the Apex Court has retrospective effect.,
(3)Whether the applicants can be considered as
similarly situated to those applicants in 1979
selection ? and (4) Whether, the judgment in Writ
Petition No.1544/84 has application to the cases
of the applicant.

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18.While answering issue no.(4) above, the
Tribunal held that, the judgment in the case of

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Dilip Shivlal (supra) is a judgment in personam and not in rem . Admittedly, the petitioner i.e. Dilip Shivlal in Writ Petition No.1544/1984 in response to the Notification No. 1477-III(A)/82 issued in October, 1982, applied for the post advertised by way of said notification and appeared in the examination. He secured 330 marks out of 550 marks. It would be apt to reproduce hereinbelow, the paras 2 to 5 of the said judgment, which read thus :-

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“2.The petitioner has already been in
State Government service. In response to
the Notification No. 1477-III(A)/82 issued
in October 1982 that a combined
competitive(main)examinationfor
recruitment to the various posts mentioned
in the Circular would be held by the
Maharashtra Public Service Commission at
different centres from 25th December 1982,
the petitioner applied for the post and
appeared in the examination. He secured
330 out 550 marks. He was called for viva
voce test and secured 80 out of 200 marks.

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Thus, he secured in all 410 out of total
750 marks. Though qualified, he was not
selected for any of the posts advertised
probably on the ground that he was lower
down in rank than the posts available for
general candidates.

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3.It has been contended by Shri Apte,
the learned Counsel for the petitioner,
that the question of reservation of posts
now stands concluded by the decision of
the Supreme Court in Civil Appeal No.4117
of 1984 dated 19th October 1984 whereby
this Court's decision in the case of
Shivaji and another V. The Chairman,
M.P.S. Commission reported in A.I.R. 1934
Bom. 434 was confirmed. It is pointed out
that the facts in this case were that
besides reservation of 34% posts in favour
of Scheduled Caste and Scheduled Tribes
etc. reservation of another 46% of the
posts was made in favour of economically
weaker sections of the society. This Court
had inter alia struck down the rule
providing for advertised reservation of
46% of posts for economically weaker
sections of the society and that on

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concession by the Government it was held
by the Supreme Court in the decision
(supra) that reservationfor all
categories taken together cannot and
should not exceed 49% of the posts.
Following the Supreme Court decision
(supra) we have no difficulty in holding
that the position has to succeed to the
extent the reservation of posts herein
exceed the percentage fixed by the Supreme
Court on a concession from the Government.
We find that appropriate directions are
given by this Court in the case of Shivaji

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and another V. Chairman, M.P.S.C. (supra)
following which we also direct the
Government to prepare a revised list of
candidates who will qualify for selection
in consultation with Maharashtra Public
Service commission in the light of the
Supreme Court decision (supra).

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4.As regards the other contention
namely, that allocation of marks for viva
voce test coming to about 26% of the total
marks is also bad, Shri Apte relied on
another Supreme Court decision Ashok Kumar
Yadav V. State of Haryana (1985) 4

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Supreme Court Cases 417. It is true that
12.2% marks reserved for viva voce test
were considered reasonable in that case.
However, we do not think that it is
desirable to go into this question in this
case at this juncture as we are concerned
herein with the selection made in 1983. If
the selection of candidates who might have
already joined services is disturbed at
this stage i.e. after more than four
years, it will upset a large number of
appointments already made on the basis of
such a selection and the integrity and
efficiency of the entire administrative
machinery would seriously be in jeopardy.
In fact, Their Lordships of the Supreme
Court and also while dealing with the
question of allocation of such a high
percentage of marks for the viva voce test
at page 455 adopted the same course.

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5.In the above view of the matter, the
petition partly succeeds. The Government
is directed to prepare a revised list of
candidates eligible to fill in posts in
consultation with Maharashtra Public
Service Commission in the light of this

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Court's decision in A.I.R. 1984 Bom. 434
and Supreme Court decision dated 19th
October 1984, if not already done. The
rule is partly made absolute with no order
as to costs.”

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19.In the case of Dilip Shivlal (supra), the
Division Bench (Coram : Pendse & Sugla, JJ)
observed in para 4 that, if the selection of
candidates, who might have already joined
services, is disturbed at this stage i.e. after
more than four years, it will upset a large number
of appointments already made on the basis of such
a selection and the integrity and efficiency of
the entire administrative machinery would
seriously be in jeopardy, and accordingly,
directed the State Government to prepare the
revised list of candidates eligible to fill in the
posts in consultation with Maharashtra Public
Service Commission, in the light of decision of

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the another Division Bench reported in A.I.R. 1984
Bom. 434 and the judgment passed by the Supreme

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Court dated 19th October, 1984.

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20.We have carefully perused the discussion

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made by the Maharashtra Administrative Tribunal in the judgment, while answering the issue no.(4), referred hereinabove in paragraph No.12. It appears from the said discussion that, the judgment in the case of Dilip Shivlal (supra) has been held the judgment in personam and not in rem .

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However, there are observations that, pursuant to
the decision in Writ Petition No.1544/1984, the

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claim of the petitioner therein, was considered by
the State Government, however, the petitioner i.e.
Dilip Shivlal was not found eligible for the post,
even after taking into consideration the judgment
of the High Court in his case. It is true that, in

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Writ Petition No.1544/1984, this Court was not

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inclined to set aside the selection of other
candidates after lapse of four years, but revision

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of merit list was directed, so as to find out
that, whether the petitioner therein i.e. Dilip

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Shivlal, was entitled to any relief. In our
considered view, the judgment in the case of Dilip

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Shivlal in Writ Petition No.1544/1984 (supra)

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cannot be restricted to the case of the petitioner
therein. The petitioner herein, has appeared for
competitive exams held in the year 1982, and
pursuant to the selection process undertaken by
the Respondents he was appointed as Tahsildar. The
petitioner being similarly situated like

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petitioner in Writ Petition No.1544/1984 (Dilip
Shivlal V/s State of Maharashtra and another), the

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Maharashtra Administrative Tribunal ought to have
directed the Respondents to consider the case of

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the petitioner, so as to find out whether the
petitioner in this case was entitled to any
relief. This Court granted sufficient time to the
State Government to produce the revised merit list
of candidates, who participated in the selection

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process of 1982 along with the petitioner.
However, learned A.G.P. informed this Court that
due to fire in Mantralaya couple of years back

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entire record has been burnt/destroyed. Because of

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the negligence or inaction of respondent – State
Government, the petitioner’s legitimate claim in
law, cannot be allowed to go unredressed, when the
petitioner is fighting the legal battle from the
year 1984-85.

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21.In the light of discussion hereinabove,

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the interference in the judgment of the Maharashtra Administrative Tribunal to the extent of holding that, the decision in the case of Dilip Shivlal (supra) is a judgment in personam and not in rem stands quashed and set aside to the extent of present petitioner.

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We hold that, the case of the petitioner

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is covered by the decision in the case of Dilip
Shivlal (supra) in Writ Petition No. 1544/1984,
and accordingly, we direct the Respondents to
consider the case of the petitioner in the light
of revised merit list of candidates prepared by

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the Respondent – State Government, pursuant to the
directions issued in Writ Petition No.1544/1989 in
the case of Dilip Shivlal (supra), and then find
out whether, the petitioner was entitled for the
appointment on the post of the Deputy Collector.
In case, the Respondents find that, the petitioner

¶224

was entitled for the post of Deputy Collector, in
that case, the notional benefits be given to the
petitioner for the purpose of reckoning seniority,

¶225

continuity and pensionary benefits, as well as
other benefits, as permissible under the Rules, on
the basis of continuity of service as Deputy
Collector, since his appointment till his
retirement on attaining the age of superannuation.
In case such revised list is not prepared/not
available, in that case, the State Government
shall proceed on the basis that the petitioner
stood at Sr. No.9 in merit list and hence entitled

¶226

for the benefits available to the post of Dy.
Collector. The entire exercise is to be done by
the Respondents, as expeditiously as possible, and

¶227

1545.00WP

¶228

¶229

preferably within six months from today. We make
it clear that, since the petitioner stood retired
on attaining the age of superannuation, he will
not be entitled to claim arrears of salary on the
post of Deputy Collector.

¶230

22.The Petition is partly allowed to the
above extent. Rule made absolute accordingly.

¶231

[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

¶232

sga/

Sudhir Nathu Raktate v. State of Maharashtra and Ors.

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Sudhir Nathu Raktate v. State of Maharashtra and Ors.

Case brief

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What did the court decide?

What the court decided

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