Petitioner sought seniority as DSP based on exam marks despite being appointed as a replacement due to ineligibility of others. Supreme Court rejected appeal, ruling special rules for direct recruits didn't apply, confirming seniority from actual joining date.
SLP dismissed; petitioner's claim for seniority adjustment rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2010] 6 S.C.R. 466
A HARISH MAGANLAL BAIJAL
v.
STATE OF MAHARASHTRA & ORS. (SLP (C) No. 6556 of 2008)
.~ ..
B
MAY 7, 2010
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
Service Law:
c Maharashtra Civil Services (Regulation and Seniority) Rules, 1982 - Rule 4(2) - Seniority of recruits selected in one batch - 22 posts of DSP - First 14 meant for candidates from open stream and remaining 8 for reserved candidates - Petitioner unable to qualify in the exam and placed after the 0list of successful candidates-_Petitioner appointed_asSa/es Tax Officer which was his second preference - Out of the original selected candidates, three found ineligible for the post - Appointment of petitioner to the post of DSP - Publication of provisional gradation/seniority list - Seniority list, E challenged by petitioner - Claim of seniority over candidates who had been selected at the initial stage - Rejected by tribunal as a/so High Court - Interference with - Held: Not called for - Selection of petifioner along with two other candidates as substituted candidates in place of the ineligible candidates, was under fortuitous circumstance$ - Petitioner F was brought in as a replacement candidate, not from any waiting list, but from the list of successful candidates in the examination held as per marks obtained by them, on basis of the representation made by him - Thus, Rufe 4(2) not applicable and petitioner's seniority to be reckoned only from G the date of his joining his duties as DSP - Maharashtra State Service (Main), Examination, 1990.
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The Maharashtra State Service (Main), Examination, 1990 was held for the filling up of 22 posts of Deputy 466
HARISH MAGANLAL BAIJAL v. STATE OF 467 MAHARASHTRA & ORS.
Superintendent of Police/Assistant Commissioner of Police. Out of the said posts, the first 14 posts were for candidates from the open category and 8 posts were· reserved for candidates from SC, ST and OBC categories. The petitioner appeared for the exam. He scored 604 marks and could not qualify for one of the 14 vacancies in the open category and was placed immediately after the list of successful candidates. The petitioner was appointed as Sales Tax Officer, which was his second preference. Out of the candidates selected in the post of CSP, 3 candidates were found to be physically unfit for the post. On representation by the petitioner, he was appointed to the post of CSP as a replacement candidate. Thereafter, the provisional gradation/seniority list was published. The petitioner was placed at seria.1 no. 238 which was below the last candidate out of the 22 selected candidates. T, though scored lower marks than the petitioner was placed above the petitioner. K who had joined the service along with the petitioner was given seniority with effect from 15th July, 1992, along with the other batch mates of 1990. The petitioner made a representation to the State Public Service Commission challenging the seniority list. The representation was rejected. The petitioner filed an application, and the tribunal dismissed the same. The High Court upheld the order. Hence, the Special Leave Petition.
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Dismissing the Special Leave Petition, the Court
HELD: 1.1. There is no reason to interfere with the order of the tribunal as upheld 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
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468 SUPREME COURT REPORTS
[2010] 6 S.C.R.
A 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 B 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. [Para 16] [475-H; 476-A-C]
1.2. The selection of the petitioner along with two C other candidates as 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 D 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 K and he had joined the post of DSP on 15th September, 1993, their seniority should have been reckoned from the same day was rightly E rejected both by the tribunal and the High Court, having regard to the fact that while K 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 F 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 been included in the initial list of selected candidates. His claim for seniority could, therefore, be reckoned only from the date G of his joining his duties as DSP. [Para 17] [476-D-G]
1.3. K 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
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HARISH MAGANLAL BAIJAL v. STATE OF MAHARASHTRA & ORS.
469
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. [Para 18] [476-H; 477-A-C]
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1.4. The petitioner's contention that he should have been placed above T also lacks merit, since T 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 DSP. [Para 19] [477-C-D]
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1.5. Rule 4 of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982, deals with the general principles of seniority. Sub-Rule (2) of Rule 4 deals with inter se seniority of direct recruits selected in one batch for appointment to any post, cadre or service. In the petitioner's case, he was not so selected, but was brought in as a replacement candidate, not from any · E waiting list, but from the list of successful 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 said 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. [Paras 19 and 20] [477-D-E; 478-G-H; 478-A)
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CIVIL APP ELLA TE JURISDICTION : SLP (Civil) No. 6556 of 2008.
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From the Judgment & Order dated 08.01.2008 of the High Court of Judicature at Bombay in W.P. N o. 6930 of 2007.
Srenik Singhvi, Susmita Lal, Vineet Dhanda, J.P. Dhanda, H
470 SUPREME COURT REPORTS
[2010] 6 S.C.R.
A Raj Rani Dhanda, Amrendra Kr. Singh, Arun R. Pednekar, Sanja) V. Kharde and Asha Gopalan Nair for the appearing parties.
The Judgment of the Court was delivered by
B 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 gave his first preference for C 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 D 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.
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F 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 G June, 1992, asking that the Maharashtra Public Service Commis~ion 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 H called upon by the State Government to join duty as DSP/
HARISH MAGANLAL BAIJAL v. STATE OF 471 MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]
Assistant Commissioner of Police, Class-I, as replacement A 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, 1993. In the letter of recommendation written by the Maharashtra s 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 c to the petitioner's knowledge after the publication of the provisional gradation/seniority list.
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472 SUPREME COURT REPORTS
[2010] 6 S.C.R.
A placed at serial No.200 of the gradation list instead of the Respondent No.5.
C 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 D 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 September, 2004, the 'Maharashtra Administrative Tribunal, Mumbai Bench, rejected E 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.
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HARISH MAGANLAL BAIJAL v. STATE OF 473 MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]
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474 SUPREME COURT REPORTS
[2010] 6 S.C.R.
A interpreted equitably, but equity cannot override written or settled law.
HARISH MAGANLAL BAIJAL v. STATE OF 475 MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]
for appointment to the post of DSP. Mr. Dhanda submitted that not having been initially selected, the petitioner could not claim seniority over those candidates who had been selected at the initial stage.
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SUPREME COURT REPORTS
[2010] 6 S.C.R.
476
along with two other candidates as substituted candidates in place of the three ineligible candidates, was under fortuitous
D 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.
HARISH MAGANLAL BAIJAL v. STATE OF 477 MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]
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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 this regard is the correct view and needs no interference.
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"4. General principles of seniority :
(1) ......
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(a) the inter se seniority of direct recruits selected in one batch for appointment to any post, cadre or G 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 H
478 SUPREME COURT REPORTS
[2010] 6 S.C.R.
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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;
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(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 shall rank above those included in the second part:
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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;
G 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 candidates in the examination held H as per the marks obtained by them on the basis of the
HARISH MAGANLAL BAIJAL v. STATE OF 479 MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]
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.
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N.J. Special Leave Petition dismissed.
3 issues framed by the court
Whether Rule 4(2) of Maharashtra Civil Services (Regulation and Seniority) Rules, 1982 applies to a petitioner appointed as a replacement candidate from the successful list rather than a direct recrui
Whether seniority of a replacement candidate appointed after fortuitous circumstances should be reckoned from the date of joining or validated against the original select list.
Whether the petitioner was entitled to be placed higher in the seniority list than candidates who joined initially as selected candidates for reserved categories.
Colour shows how this judgement treated each authority
P. M. Latha vs. State of KeralaReferred¶73
P. M. Latha vs. State of Kerala [(2003) 3 SCC 541] · Who else cites this
2 provisions across 2 enactments
A Harish Maganlal Baijal
State of Maharashtra
Others (Respondents 2-8)
Altamas Kabir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
