Bombay High Court
Bhausaheb Gangadhar Phatangare And Ors vs State Of Maharashtra Through Chief ... on 18 December, 2019
Bench: Ranjit More, M.S. Karnik
wp 11368-19.doc
Pradnya Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11368 OF 2019
Ajinkya Natha Padwal And Ors ....Petitioners
V/S
State Of Maharashtra Through Chief
Secretary And Ors ....Respondents
WITH
WRIT PETITION STAMP NO. 25105 OF 2019
Nitin Gunaji Mahajan And Anr. ....Petitioners
V/S
State Of Maharashtra Through Chief
Secretary And Ors. ....Respondents
WITH
WRIT PETITION STAMP NO. 25104 OF 2019
Bhausaheb Gangadhar Phatangare
And Ors. ....Petitioners
V/S
State Of Maharashtra Through Chief
Secretary And Ors. ....Respondents
WITH
WRIT PETITION NO. 9843 OF 2019
Samiksha Ramakant Chandrakar ...Petitioner
V/S
State Of Maharashtra And Ors. ....Respondents
WITH
WRIT PETITION NO. 11367 OF 2019
Shri. Ajinkya Nath Padwal And Ors ....Petitioners
V/S
State Of Maharashtra Thru Chief Secretary
Mantralaya And Ors. ....Respondents
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--------------
Mr.R.M. Kadam, senior advocate along with Mr.Sandeep V.
Marne,advocate for the petitioners in writ petition
No.11368 of 2019.
Mr.Shrihari Aney, senior advocate along with Mr. Nitin P.
Deshpande, advocate for the petitioner in writ petition
No.9843 of 2019.
Mr.A.Y.Sakhare, senior advocate along with Mr.Sandeep V.
Marne, advocate for the petitioners in writ petition No.
11367 of 2019.
Mr.Kevic Setalwad,senior advocate along with Mr.V.R.
Mishra and Mr.B.B.Bankar and Mr.A. Ahmedji, Mr.Uttam
Dubey, Siddhesh Rajput i/b. M/s.Troy Legal, advocates for
the petitioners in writ petition st.No.25104 of 2019.
Mr.S.C.Naidu along with Mr. Akhilesh Dubey i/b. M/s.Law
Counsellor, advocates for the petitioners in writ petition
stamp No.25105 of 2019. Mr.R.S. Apte,senior advocate
along with Mrs.R.M.Shinde, AGP for the state.
Mr.V. A. Thorat, senior advocate along with Mr.Hemal
Dedhia, advocate for respondent No.14 in writ petition
No.9843 of 2019, respondent No.39 in writ petition
No.11367 and 11368 of 2019 and writ petition stamp
No.25105 of 2019.
Mr.P.K.Dhakephalkar, senior advocate i/by. Mr.Bhalchandra
Shinde, Mr.P.H.Gaikwad advocate for respondent Nos.11
and 36 in writ petition No.11368 of 2019.
....
CORAM : RANJIT MORE &
M.S. KARNIK, JJ.
RESERVED ON : 3rd DECEMBER, 2019
PRONOUNCED ON : 18th DECEMBER, 2019
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ORDER :
. Rule. Rule is made returnable forthwith by consent of the parties and heard fnally. Since common issues are involved, these Petitions are disposed by a common order.
2. The challenge in these petitions fled under Articles 226 and 227 of the Constitution of India is to an order dated 29.08.2019 passed by the Maharashtra Administrative Tribunal, Mumbai (hereinafter referred to as 'Tribunal' for short). By this order which is impugned in this petition the Tribunal has directed the State Government to fnalise the provisional seniority list of Deputy Collectors preferably within a period of four months from the date of receipt of the impugned order. The petitioners are not aggrieved by this part of the order. The petitioners however are aggrieved by Clause 6 of the order by which the Tribunal permitted the respondents to promote 57 Oficers (Direct Recruits) who are eligible, suitable and in the zone of consideration. 3/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 :::
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3. The respondent Nos.4 to 55 in Writ Petition No. 11368 of 2019 fled O.A. No.916 of 2016 before the Tribunal. The present respondent Nos.4 to 55 are the Direct Recruit Deputy Collectors (hereinafter referred to as 'Direct Recruits' for short). The petitioners are Promotee Deputy Collectors (hereinafter referred to as 'Promotees' for short). Common issue arises in O.A. No. 1099 of 2016 which is also disposed of by the impugned order. Facts in O.A. No. 916 of 2016 are therefore set out.
4. The present is an inter se seniority dispute between Direct Recruits and Promotees. Fixation of seniority amongst the Direct Recruits and Promotees is to be made in accordance with the provisions of the Maharashtra Deputy Collector (Recruitment, Fixation of Seniority and Confrmation) Rules, 1977 (hereinafter referred to as 'the Rules' for short). It is the case of the Direct Recruits that the seniority of promotees cannot be on the basis of length of continuous service in the cadre i.e. from the date on which the promotions are efected but it has to be on the basis of a proper application of the quota 4/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc rule meant for Direct Recruits and Promotees. According to the Direct Recruits, Rules of 1977 prescribe a quota of 35% for the Direct Recruits which is not adhered to while making appointments/promotions. According to direct recruits promotees are promoted in the vacancy meant for direct recruits. The Direct Recruits therefore say that the seniority of promotees cannot be reckoned from the date on which the promotions were made if the same are made in the vacancy arising in the quota meant for Direct Recruits.
5. On the other hand, it is the case of the promotees that the seniority list has to be prepared based on the length of service as Deputy Collectors meaning thereby that the initial date of promotion has to be reckoned for determining seniority.
6. Briefy stated the facts are thus :-
The State of Maharashtra from time to time published the provisional seniority list of Deputy Collectors. The same was published on 24.09.2009 in respect of 5/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc Deputy Collectors recruited/promoted between 1990 to 2008. Thereafter, on 25.04.2014 the provisional seniority list of Deputy Collectors appointed during 01.01.1999 to 31.12.2000 was published. Then on 12.05.2014 the Government published combined draft fnal seniority list of Deputy Collectors. There is no serious dispute that in all these provisional seniority lists the promotees were placed above the Direct Recruits based on length of continuous service in the promotional post.
7. It is the common ground that the fnal seniority list was never published. However, promotions to the post of Deputy Collectors (Selection Grade) and Additional Collectors were made on the basis of said provisional seniority list.
8. It is the case of the petitioners-promotees that the direct recruits had earlier fled O.A. No.526 of 2004 before the Tribunal seeking declaration for strict implementation of quota rule and for pushing down promotees who are granted fortuitous promotions and for 6/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc preparation of fresh seniority list as per the quota rule. O.A. No.526 of 2004 was dismissed by the Tribunal on limitation as well as on merits. It is thus the case of the promotees that in view of the decision of the Tribunal in O.A. No.526 of 2004, the issue of assignment of seniority to promotees promoted allegedly in excess of cadre strength from the date of their promotions has attained fnality. It is further case of the promotees that as the order passed by the Tribunal in O.A. No.526 of 2004 became fnal, the issue about implementation of quota rule stands concluded. This contention is strongly controverted by the learned counsel appearing on behalf of the Direct Recruits. In the submission of learned counsel for the Direct Recruits, the order passed by the Tribunal in O.A. No.526 of 2004 is being wrongly construed as an adjudication on the issues canvassed by the promotees in this Petition. In the present petition, we refrain from going into this contention as to the efect of the order passed by the Tribunal in O.A. No.526 of 2004 as this is not the scope of the present petition.
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9. The present petition arises out of the impugned order passed by the Tribunal disposing of O.A. No.916 of 2016 fled by the Direct Recruits. O.A. No.916 of 2016 was fled by the Direct Recruits essentially for the relief that the State Government be directed to fnalise the provisional seniority list for the cadre of Deputy Collector which was published on 24.09.2009, 25.04.2014 and combined draft fnal seniority list dated 12.05.2014. On 12.05.2014 the State Government published combined draft fnal seniority list of Deputy Collectors as per the Rules of 1977 after deciding the representations and giving personal hearing to the petitioners. The Direct Recruits further prayed that it is only after preparation of the combined fnal seniority list as per the Rules of 1977, the promotions should be efected from the cadre of Deputy Collectors. Thus, O.A. No.916 of 2016 was essentially fled for direction to publish combined fnal seniority list of Deputy Collectors as per the Rules of 1977.
10. Thus, on the date of the fling of the O.A. No.916 of 2016, three seniority lists (provisional / draft) of Deputy 8/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc Collectors were published. According to direct recruits Promotions efected on the basis of these provisional seniority lists largely benefted the promotees. The Direct Recruits aggrieved by the manner in which the seniority was fxed to their detriment, also requested that no further ad-hoc promotions should be made.
11. During the pendency of the O.A. No.916 of 2016, pursuant to the order dated 25.07.2017 in Miscellaneous Application No.292 of 2017 fled by the State Government, the Tribunal allowed the State Government to efect promotions in the cadre of Additional Collector (Selection Grade) subject to the outcome of the O.A. based on provisional seniority list then in existence. The Tribunal passed the order directing the State Government that the fnal proclamation of the seniority list should not be made without express leave of the Tribunal.
12. On 03.10.2017 the State Government efected promotions to the posts of Deputy Collector (Selection Grade) and Additional Collector on the basis of the draft 9/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc fnal seniority list. Till 03.10.2017 all promotions were made on the basis of earlier provisional seniority list.
13. The State Government thereafter published a fresh provisional seniority list of Deputy Collectors on 03.03.2018 for the period 01.01.1999 to 31.12.2000 and 01.01.2001 to 31.12.2003. It is the contention of the promotees that this provisional seniority list of 3.3.2018 had the efect of pushing down the promotee Deputy Collectors below the Direct Recruits in the order of seniority. It is contended by promotees that by publishing the said list the beneft of seniority to the promotees from the dates of their actual promotions is denied and the quota rule in favour of direct recruits was wrongly applied.
14. The provisional seniority list of 03.03.2018 was challenged by one promotee-Deputy Collector by fling O.A. No.308 of 2018. However, O.A. No.308 of 2018 was disposed of by the Tribunal on 03.09.2018 as challenge to the provisional seniority list was premature. 10/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 :::
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15. On 07.09.2018 one of the promotee (Ajinkya Natha Padwal - the petitioner No.1 in Writ Petition No.11368 of 2019) fled M.A. No.468 of 2018 in O.A. No.916 of 2016 seeking interim order of stay on promotions on the basis of provisional seniority list dated 03.03.2018. On 14.09.2018 the Tribunal by its order in M.A. No.468 of 2018 directed the State Government not to issue any order of ad-hoc promotions unless the seniority list is fnalised without express leave of the Tribunal.
16. Thereafter, the State Government fled M.A. No.429 of 2019 seeking leave of the Tribunal to efect promotions from the cadre of Deputy Collector to the grade of Deputy Collector (Selection Grade) purely by way of temporary arrangement, subject to further orders and on the terms and conditions that may be imposed by the Tribunal. By order dated 13.08.2019 the Tribunal permitted the State Government to issue ad-hoc promotions to the post of Deputy Collector (Selection Grade) "for the purpose stated in the M.A.". Though it is recorded in the order that the promotees consented to such 11/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc order being passed, according to the promotees, said concession was erroneously recorded. It is the contention of the promotees that the application was made for speaking to the minutes but the same has not been disposed of .
17. Thereafter, on 14.08.2019 the State Government issued promotion orders. According to the promotees the dates of promotion of 48 promotee Deputy Collectors in the Selection Grade were illegally altered. By second order dated 14.08.2019, 40 Direct Recruits are granted ad-hoc promotions as Deputy Collectors (Selection Grade) retrospectively from various dates beginning from 31.05.2011.
18. Sometime after 14/8/2019 the Direct Recruits applied to the Tribunal for withdrawal of O.A. No.916 of 2016. While allowing the application for withdrawal by impugned order dated 29/8/2019 the Tribunal recorded that the State Government had already promoted 48 Oficers from the provisional seniority list published on 12/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc 03.03.2018 of Deputy Collector (Selection Grade) by an order dated 14.08.2019. The Tribunal further permitted the State Government to promote 57 Oficers who are eligible, suitable and in the zone of consideration.
19. We have heard learned Senior Counsel Shri Kadam, Shri Sakhare, Shri Aney, Shri Setalwad and Shri Naidu on behalf of the petitioner-promotees. We have also heard learned Senior Counsel Shri Thorat, Shri Dhakephalkar and Shri Apte on behalf of respondents. After the arguments were heard, the parties have also placed their written submissions on record.
20. SUBMISSIONS ON BEHALF OF PETITIONER - PROMOTEES :
(A) O.A. No.916 of 2016 was fled by the Direct Recruits for direction that the provisional seniority list should be fnalised and therefore, the Tribunal by permitting the State Government to promote 57 Direct Recruits on the basis of the seniority list on 03.03.2018 has virtually granted relief which is not even prayed for nor which was even the subject matter of the O.A. 13/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc (B) On an application made by Direct Recruits for withdrawal of the O.A., there was no occasion for the Tribunal to have permitted the State Government to promote 57 Direct Recruits as the only order that could have been passed by the Tribunal is permitting the applicants to withdraw the O.A. and nothing more. (C) The Government is not justifed in efecting the promotions on the basis of seniority list of 03.03.2018 as the same is contrary to the order passed by the Tribunal in O.A. No.526 of 2004 decided on 17.04.2008. The O.A. No. 526 of 2004 fled by the Direct Recruits on earlier occasion was dismissed, inter alia holding that it cannot be said that the promotees are promoted in excess of the cadre strength, any promotion made cannot be treated as fortuitous or illegal and that such promotees would be entitled to seniority from date of promotion. Based on the Rules of 1977 the State Government published provisional seniority list on 24.09.2009 and thereafter on 25.04.2014 and combined draft fnal seniority list dated 12.05.2014 which refects the correct position.
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wp 11368-19.doc (D) When O.A. No.916 of 2016 and O.A. No. 1099/ 2016 was already fled by the direct recruits for directing the State Government to fnalise the seniority list, during the pendency of these O.As., there was no occasion for the State Government to have published the provisional seniority list on 3.3.2018 which had the efect of unsettling the settled position as provisional seniority lists of 2009, 2014 and the combined draft fnal seniority list of 2014 are based on the order passed by the Tribunal in 2004. (E) During the pendency of O.A. No.916 of 2016, pursuant to the M.A. fled by the State Government, the Tribunal permitted the State Government to efect ad-hoc promotions on the basis of provisional seniority list of 03.03.2018. The Direct Recruits having taken advantage of the interim order, upon withdrawal of the O.A. the said beneft can not be allowed to continue. Upon withdrawal of O.A., the interim order would merge with the fnal order and the Direct Recruits cannot continue to derive the beneft of ad-hoc promotion which was granted to them as an interim measure during the pendency of the O.A. 15/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc (F) As a result of order passed by the Tribunal, if ad- hoc promotions are efected, it will be dificult to revert the Direct Recruits and to prevent further complications, till such time the seniority list is fnalised, the 57 Direct Recruits ought not to be promoted.
(G) The promotees who are represented by Senior Advocate Shri Setalwad would be pushed down to a position where they are not even in the zone of consideration for promotion.
(H) All those direct recruits promoted as a result of the beneft of the interim orders passed by the Tribunal pursuant to the publication of the provisional seniority list of 3/3/2018 ought to be reverted to their original position upon withdrawal of the O.A. as per the well settled principle of restitution. Even as the law provides for restitution of the beneft which the direct recruits received under the interim order which they were successful in seeking during the pendency of the proceedings, for the Tribunal then to further permit the State Government to 16/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc promote 57 oficers on an application made by the State Government and that too at the stage when direct recruits wanted to withdraw the O.A. is completely contrary to well settled legal principles.
(I) Following decisions are relied upon in support of their submissions :-
(i) Learned Senior Counsel relied upon the decision in Akole Taluka Education Society Vs. The State of Maharashtra and Ors. (2017) 7 Bom CR 510 (Bombay High Court) more particularly paragraph 20 to support the submission that once the Writ Petition is dismissed, interim order stands nullifed automatically. Further, the party whose writ petition is dismissed cannot take advantage of its own wrong. An undeserved beneft taken by a party under an interim order has to be neutralized and it is the duty of the Court to neutralize the same.
(ii) Learned Senior Counsel also relied upon the decision in DTC Vs. International Avenues 2009 (112) 17/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc DRJ 423 (High Court of Delhi). Paragraph 8 is relied upon to demonstrate the well established principle of law that where proceedings fled by any person have come to an end whether by withdrawal or by the same being dismissed then such person is bound to restitute the beneft which he has received under interim orders which he was successful in seeking during the pendency of the proceedings.
(iii) Reliance is also placed on the paragraph 15 to 24 in the decision of Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Others (2010) 9 SCC 437 to urge that no litigant can derive any beneft from the mere pendency of a case in a court of law, as the interim order always merges into the fnal order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullifed automatically.
(iv) Reliance is placed on the decision of the Apex Court in the case of Union of India and anr. vs. Raghubir Singh (dead by LRs. Etc. (1989) 2 SCC 754 18/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc to emphasize that India is governed by a judicial system identifed by a hierarchy of courts, where the doctrine of binding precedent is a cardinal feature of its jurisprudence. Our attention is invited to paragraphs 7, 8 and 9 of the said decision where the Apex Court has said that the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily afairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court. SUBMISSIONS ON BEHALF OF DIRECT RECRUITS :-
21. Per contra, the submission of learned Senior Counsel Shri V.A. Thorat and Shri P.K. Dhakephalkar appearing on behalf of Direct Recruits are thus :-
(a) The Tribunal was justifed in issuing a direction to promote 57 Direct Recruits as the State Government had clearly indicated and sought leave of the Tribunal to promote these 57 Direct Recruits during the pendency of 19/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc the O.A. According to learned Senior Counsel, in any case, it is always open for the Government to issue promotions on ad-hoc basis and therefore, in the facts of the present case there is no reason to interfere with the impugned order.
(b) The promotees had no grievance when promotions on ad-hoc basis were made on the basis of provisional seniority lists of 2009 and 2014 but are now opposing the promotions made on the basis of provisional seniority list of 03.03.2018 which cannot be permitted.
(c) Even after fling of O.A. No.916 of 2016 the promotees were promoted on ad-hoc basis as per the combined draft fnal seniority list of 2014 and therefore it is not open for the promotees to raise a grievance that the promotion should not be efected only because now they have a grievance regarding provisional seniority list dated 03.03.2018. Moreover, the challenge to the provisional seniority list of 03.03.2018 by the promotees has been dismissed by the Tribunal and therefore the State 20/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc Government would be justifed in efecting promotions on the basis of provisional seniority list of 3.3.2018. It is the prerogative of the State Government to efect promotions considering the needs and exigency of the administration and therefore it is not in public interest to restrain the State Government from making further promotions.
(d) The withdrawal of the O.A. is hardly of any consequence on the promotions made in the interregnum as all the promotions have been efected during the pendency of the O.A. on ad-hoc basis which are obviously subject to fnalisation of the seniority list. The relief claimed in the O.A. is for a direction to the State Government to fnalise the seniority list and as obviously all the promotions would be subject to fnalisation of the seniority list, the order passed by the Tribunal does not call for interference.
(e) The petitioner-promotees are misconstruing the order passed by the Tribunal in O.A. No.526 of 2004 and in any case whether the seniority list is prepared in accordance with the Rules of 1977 will be an issue which is 21/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc open for agitation only after the seniority list is fnalised, more so when the Tribunal has dismissed the challenge of the promotees to the provisional seniority list dated 3/3/2018 as premature.
(f) The promotees having consented before the Tribunal to the application made by the State Government for leave to efect promotions on the basis of the provisional seniority list of 03.03.2018, it is not open for the promotees to resile from the said concession and agitate this question in this petition. In support of this contention learned Senior Counsel would rely upon the decision of the Apex Court in the case of State of Maharashtra Vs. Ramdas Shrinivas Naik reported in AIR 1982(2) SCC 463 and Chitra Kumari : Raj Kumari vs. Union of India reported in 2001(3) SCC 208.
(g) In case it is the contention of the promotees that the concession has wrongly been recorded by the Tribunal then the only remedy is to approach the Tribunal seeking withdrawal of the concession so made and for consequential order.
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wp 11368-19.doc SUBMISSIONS OF LEARNED SENIOR COUNSEL FOR THE STATE GOVERNMENT :-
22. Learned Senior Counsel for the State Government Shri Apte would support the impugned order.
He would adopt the submissions advanced by learned Senior Counsel Shri Thorat and Shri Dhakephalkar. He would further submit that stand of the State Government is very clear in as much as the promotions which are made during the pendency of the O.A. are purely on ad-hoc basis pending fnalisation of the seniority list. He would submit that the State Government made promotions on the basis of provisional seniority list published on 03.03.2018 and the same does not in any manner crystalise the right of Direct Recruits to claim seniority over the promotees as the promotions are made on ad-hoc basis subject to fnalisation of the seniority list. The State Government is taking into consideration the objections and representations received to the provisional seniority list dated 03.03.2018 where after the fnal seniority list will be published. The seniority of the Direct Recruits and Promotees will be governed by 23/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc the fnal seniority list so published and the promotions which are made on the basis of the provisional seniority list of 03.03.2018 would obviously be subject to the fnal seniority list to be published. Shri Apte further submitted that the process of fnalising the seniority list may require a longer time than the one stipulated by the Tribunal in view of the numerous representations and objections received to the provisional seniority list of 03.03.2018. He makes a categoric statement on instructions that fnal seniority list would be published by end of January, 2020. Shri Apte submits that considering the importance of the duties the Deputy Collectors (Selection Grade) and Additional Collectors perform, it is neither in the interest of the Government nor the public to keep the posts vacant. He would urge that in the interest of the administration it is absolutely essential to make promotions ad-hoc basis subject to fnalisation of the seniority list. CONSIDERATION :-
23. This is an inter se seniority dispute between Direct Recruit Deputy Collectors and promotee Deputy 24/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc Collectors. The provisional seniority list was published in 2009 and thereafter in 2014. Ad-hoc promotions were made on the basis of these provisional seniority lists. The provisional seniority lists of 2009 and 2014 are prepared by granting seniority to the promotees from the date of promotion by taking into consideration the length of continuous service in the cadre. Ad-hoc promotions in the grade of Deputy Collectors and the post of Additional Collectors also came to be made on the basis of provisional seniority lists of 2009 and 2014. It is the grievance of the Direct Recruits that the provisional seniority lists are not prepared in accordance with the Rules of 1977. According to the Direct Recruits, Rules of 1977 provides for 35% quota for Direct Recruits which is not adhered to. The promotees were promoted as against the quota meant for Direct Recruits. The Direct Recruits contend that the promotees have misconstrued the decision of the Tribunal in O.A. No. 526 of 2004 as the Tribunal nowhere indicates that quota meant for Direct Recruits should not be followed while publishing the combined seniority list. 25/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 :::
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24. The Direct Recruits approached the Tribunal by fling O.A. No.916 of 2016 for direction that the seniority list of Deputy Collectors should be fnalised. It is their contention that since 2009 the State Government is only publishing the provisional seniority list and efecting promotions on ad-hoc basis. Even during the pendency of the O.A., the Tribunal granted leave to the State Government to efect promotions and/or the State Government efected promotions on ad-hoc basis as per the provisional seniority list of 2014.
25. It is when the State Government published the provisional seniority list on 03.03.2018 that the promotees were pushed down in the provisional seniority list. When the question of further promotions arose, the Direct Recruits who now were placed higher in the seniority list of 3/3/2018 are considered by the State Government for promotion on ad-hoc basis. Accordingly, 48 Oficers were promoted from the provisional seniority list of 03.03.2018 as Deputy Collector (Selection Grade) by an order issued on 14.08.2019. The State Government also wanted to 26/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc promote 57 Oficers from the list of Deputy Collector (Selection Grade) as Additional Collector in view of the administrative exigency purely on temporary basis. The State Government sought leave of the Tribunal to issue orders promoting them. Pending this application of the State Government, the Direct Recruits made an application for withdrawing the O.A. In our opinion, the Tribunal should have simply permitted the Direct Recruits to withdraw the O.A. In the O.A. fled by the Direct Recruits claiming the relief directing the State Government to prepare the fnal seniority list, the Tribunal has committed an error in permitting the State Government to promote 57 Oficers as Additional Collectors. The application made by the State Government seeking leave to promote 57 oficers would not survive for consideration upon withdrawal of the O.A. fled by direct recruits.
26. There is no serious challenge by any of the parties to the direction issued by the Tribunal to fnalise the seniority list. In any case, learned Senior Counsel Shri Apte has made a statement that the State Government 27/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc would fnalise the seniority list by end of January, 2020 after taking into considering the representations and objections of all concerned. Learned Senior Counsel Shri Apte has further clearly indicated that the promotions which have been made during pendency of O.A.916 of 2016 are purely on ad-hoc basis and the same are subject to fnal seniority list. In view of this submission, the apprehension of the promotees, that Direct Recruits who are promoted on ad-hoc basis in terms of the provisional seniority list of 3rd March, 2018 would claim equities and assert their rights on the basis of such ad-hoc promotions is misplaced and unfounded.
27. It is further submission of learned Senior Counsel Shri Apte that even if the order of the Tribunal is sustained, no prejudice will be caused to any one, as most of the promotees including the direct recruits who are parties to these Petitions are likely to get promotions on ad- hoc basis. These promotions will obviously be subject to fnal seniority list. According to learned Senior Counsel Shri Apte only some of the petitioners who are represented 28/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc by learned Senior Counsel Shri Setalwad are likely to be deprived of the beneft of ad-hoc promotion as they are not in the zone of consideration for promotion in terms of the provisional seniority list of 3rd March, 2018.
28. Taking an over all view of the matter, we refrain from addressing on the larger issue raised by learned Senior Counsel for the petitioners that the direct recruits should not be allowed to continue to take advantage of the interim orders in their favour once they have withdrawn the O.A.. Sufice it to observe that even on the previous occasions, the ad-hoc promotions were made on the basis of the provisional seniority list of 2009 and those of 2014 which by and large benefted the promotees. The provisional seniority list of 3 rd March, 2018 enures to the beneft of direct recruits. Even the State Government has taken a specifc stand that the fnal seniority list would be published by the end of January, 2020. In this view of the matter, we do not fnd this is to be a ft case to interfere with the ad-hoc promotions already made on the basis of the provisional seniority list of 3 rd March, 2018 which even 29/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc according to Shri Apte are purely on ad-hoc basis subject to fnal seniority list. It is therefore clear that the said promotions are purely on ad-hoc basis subject to the fnal seniority list to be prepared by the State Government by the end of January, 2020.
29. We are however of the opinion that Clause (6) of the impugned order of the Tribunal which permits the State Government to promote 57 oficers calls for interference. According to us, on a motion made by the direct recruits for withdrawal of the O.A., the Tribunal should not have permitted the State Government to promote 57 direct recruits, more so, when the O.A. was at the instance of the direct recruits essentially for the relief of fnalising the seniority list. On a motion made by the direct recruits for withdrawal of the O.A., the question of considering any pending application and that too of the State Government was uncalled for. The other reason why we are inclined to interfere with clause (6) of the impugned order passed by the Tribunal is that by issuing this direction the promotees are deprived of an opportunity to test the correctness of 30/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 ::: wp 11368-19.doc the ad-hoc promotions if made by the State Government before the Tribunal. We therefore quash and set aside Clause (6) of the impugned order passed by the Tribunal. We may however hasten to add that considering the exigency of the administration, it is for the State Government to independently consider the question of efecting ad-hoc promotions pending fnalisation of seniority list which will aford a fair opportunity to the aggrieved to test the decision before the Tribunal on grounds legally permissible. Hence the following order.
ORDER
(i) Clause (6) of the impugned order dated 29 th August, 2019 passed by the Tribunal in O.A. No. 916 of 2016 and O.A. No. 1099 of 2016 is quashed and set aside.
(ii) The statement made by learned Senior Counsel Shri Apte on instructions that the State would fnalise the seniority list by the end of January, 2020 after considering the representations and objections to the provisional seniority list dated 3rd March, 2018, is accepted. 31/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 :::
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(iii) Needless to mention, it is open for the State Government to take an independent decision whether to make promotions on ad-hoc basis pending fnalisation of seniority list.
(iv) Writ Petitions are partly allowed.
30. Rule is disposed of in the above terms with no order as to costs.
(M.S. KARNIK, J.) (RANJIT MORE, J.) 32/32 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 04:37:58 :::