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3 The original petitioner before the High Court is in appeal. 4 The appellant as well as the first respondent are officers in the service of the Government of Maharashtra. The appellant belongs to the open category while the first respondent belongs to a Scheduled Caste. The chart with relevant details regarding their appointments and promotions in the service of the state is provided thus:

         POSTING              SUDHAKAR NANGNURE             NORESHWAR SHENDE
                               (OPEN CATEGORY)                    (SC)
Planning Assistant                 6.5.1983                         --



Assistant Town Planner                 6.5.1988                        --
Town Planner                           1.7.1992                    1.7.1992
Dy. Director of Town                  1.11.2003                    3.8.2006
Planning (DDTP)
Joint Director of Town                2.7.2013                     11.8.2011
Planning (JDTP)
Director of Town Planning     Eligible to be promoted on    Promoted on 30.4.2016
(DTP, MS)                               3.7.2016           subject to outcome of O.A.
                                                                 No.269/2016.



5        The appellant joined service as a Planning Assistant in the Government of

(iii) A reply to a query addressed by the appellant under the Right to Information Act 2005 on 8 March 2016 stating that:

“Mr N R Shende, Joint Director, Town Planning has been granted adhoc promotion to the post of Joint Director of Town Planning vide Government Resolution No. TPV- 1110/624/CR.170/2010/UD-27 dt. 11.08.2011. Provision is made that said promotion will be regularized with concurrence of General Administration Department and approval of Maharashtra Public Service Commission.”

75 Mr Giri, learned Senior Counsel appearing on behalf of the first respondent submitted that though the word ad-hoc has been used in the order of promotion, the due process of promotion was followed before the first respondent was promoted to the post of JDTP. In urging this submission, Mr Giri has relied on the communication dated 7 January 2011 of the Deputy Secretary to the Government of Maharashtra to the Principal Secretary, Services, GAD. He submits that (i) only two posts were available in the cadre of JDTP, one of which is set apart for the reserved categories; (ii) no other eligible officer was available to fill up the said post from amongst the reserved categories and hence the first respondent was recommended for promotion; and (iii) in any event, the appellant who is an open category candidate cannot have a right of appointment to a post for the reserved categories on which the first respondent was appointed. 76 Alternately, it has been urged on behalf of the first respondent that even presuming that the seniority of the appellant is protected in the cadre of JDTP, the fact remains that he did not have the requisite eligibility to be considered for promotion to the post of Director, Town Planning. The appellant was promoted to the post of JDTP on 2 July 2013. Mr Giri has urged that even if the catch-up rule were to prevail on the ground that the promotion of the first respondent is only ad- hoc: (i) Rule 3 of the Directorate of Town Planning and Valuation (Recruitment) Rules 2011 prescribes that an officer holding the post of JDTP must necessarily serve in the post for a minimum of three years to be considered eligible for promotion to the post of DTP; (ii) upon superannuation of Mr Rajan Kop from the post of DTP, a vacancy in the post arose on 30 April 2016; (iii) as on the date when the vacancy occurred in the post of DTP, the appellant did not fulfill the eligibility criterion of three years’ experience as JDTP and the first respondent as the senior-most eligible officer, was entitled to be appointed to the post. The state has issued a GR dated 5 October 2015 under which the condition prescribing the minimum required experience for promotion cannot be relaxed; and (iv) seniority and eligibility are different concepts and merely because a person is senior does not make an individual eligible for consideration.

81 Rule 3 of the Directorate of Town Planning and Valuation (Recruitment) Rules 2011 provides as follows:

“3. Appointment to the post of the Director of Town Planning, Group-A shall be made by promotion of a suitable person on the basis of strict selection with due regard to seniority, from amongst the persons holding the post of Joint Director of Town Planning in the Directorate, having not less than three years regular service in that post.” The fact that the vacancy occurred on 30 April 2016, on the retirement of the then DTP has not been disputed in the course of the submissions of the appellant. On the date when the vacancy occurred, the appellant clearly did not fulfill the eligibility criterion of three years’ experience as JDTP. The appellant who was promoted on 2 July 2013 did not fulfill the criterion prescribed by Rule 3. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that post.