HARISH MAGANLAL BAIJALversusSTATE OF MAHARASHTRA & ORS.

                               [2010] 6 S.C.R. 466

      A                  HARISH MAGANLAL BAIJAL
                                     v.
                      STATE OF MAHARASHTRA & ORS.
                         (SLP (C) No. 6556 of 2008)
 ..
.~



                                   MAY 7, 2010
      B
               [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
      0   list of successful candidates - Petitioner appointed as Sa/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.
              The Maharashtra State Service (Main), Examination,
          1990 was held for the filling up of 22 posts of Deputy
      H                                 466
     HARISH MAGANLAL BAIJAL v. STATE OF                  467
            MAHARASHTRA & ORS.
Superintendent of Police/Assistant Commissioner of               A
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          B
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          c
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        0
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           E
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.
                                                                 F
    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   G
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          H
    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
H
     HARISH MAGANLAL BAIJAL v. STATE OF                 469
            MAHARASHTRA & ORS.
the case of the petitioner it was different, in that, he was   A
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                B
Service Commission in 1990. [Para 18] [476-H; 477-A-C]

     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         C
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]

     1.5. Rule 4 of the Maharashtra Civil Services
(Regulation of Seniority) Rules, 1982, deals with the D
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 F
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)

     CIVIL APP ELLATE JURISDICTION : SLP (Civil) No. 6556      G
of 2008.

    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.
E
       2. Since there were only 14 vacancies in the open
  category for the post of DSP, the Petitioner in keeping with his
  second preference, was appointed as Sales Tax Officer, Class-
  !, and he joined his duties in the said post on 22nd April, 1992.

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.

     4. The provisional gradation/seniority list of the cadre of
DSP/Assistant Commissioner of Police (Unarmed) came to be
published by the Secretary, Home Department, Maharashtra             D
State, in which the Petitioner was placed at serial No.238 and
the Respondent Nos.5, 6, 7 and 8, who were from the same
batch as the Petitioner, were shown at serial nos.200, 201, 202
and 203, respectively. From the said seniority list, it further
transpired that candidates from serial Nos.188 to 202 were all       E
from the same batch of direct recruits appointed in the year
1992. However, although the Respondent No;7 (Mr. Kumbhare)
had joined the service on 15th September, 1993, along with
the Petitioner, he was given seniority with effect from 15th July,
1992, along with the other batch mates of 1990 on the basis          F
of contemporaneous merit/rank position prepared by the
Maharashtra Public Service Commission, the Respondent No.4
herein. According to the Petitioner, if the same yardstick, as
was applied in Mr. Kumbhare's case, had been applied to the
Petitioner, his name would have appeared after Sanjay Devidas        G
Baviskar, who had secured 605 marks and was placed at serial
No.199 and before Sanjay Yashwant Gaikawad Aparati, the
Respondent No.5, who having obtained 603 marks was placed
at serial No.200. It is the Petitioner's case that having obtained
h_igher marks than the Respondent No.5, he should have been          H
    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.

       5. Aggrieved by the above, the °peti.tioner made a
  representation to the Maharashtra Public Service Cotnmission,
B but the same was rejected in June, 2003, on the ground that -
  the seniority position assigned to the Petitioner was in keeping
  with the recommendation made by the Secretary, Home
  Department, Maharashtra State and could not, therefore, be
  changed.

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.

       7. Appearing in support of the Special Leave Petition, Mr.
F Srenik Singhvi, learned Advocate, urged that under Rule 4(2)
  of the Maharashtra Civil Services (Regulation and Seniority)
  Rules, 1982, the Petitioner was entitled to be placed in the
  seniority list in accordance with the marks obtained by him in
  the 1990 examination. Therefore, the direction given by the
G Maharashtra Public Service Commission to place the Petitioner
  below the last candidate out of the 22 candidates selected was
  not only erroneous, but arbitrary and in violation of the above-
  mentioned Rule. Mr. Singhvi submitted that the learned Tribunal
  had erred in dismissing the Petitioner's Original Application.
H
    HARISH MAGANLAL BAIJAL v. STATE OF                        473
   MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]

     8. As far as the High Court is concerned, Mr. Singhvi            A
submitted that it had proceeded on the erroneous basis that
the Petitioner hadoeen selected from the waiting list of
candidates, whereas the Petitioner was one of the originally
selected candidates, but could not be appointed on account of
the number of vacancies. Learned counsel submitted that the           B
gradation list prepared by the Respon~ent No.2 was, therefore,
liable to be set aside with a direction to place the name of the
Petitioner at serial no.200 instead of serial No.238. It was
submitted that since Mr. Kumbhare's appointment was withheld
on account of the discrepancy in his caste certificate, he could      c
not have been given seniority over the Petitioner who joined his
duties as Sales Tax Officer, Class-I, on 22nd April, 1992, and
was, thereafter, issued appointment letter in the post of DSP
on 30th August, 1993. Mr. Singhvi submitted that had the
disqualification of the three candidates been taken into              0
consideration at the time of preparation of the select list, the
Petitioner would have been within the first 14 candidates from
the open category on account of the marks obtained by him in
the examination conducted in 1990 for filling up the 22 vacant
posts. Instead, a direction was given by the Respondent No.2          E
to place him below Mr. Kumbhare, who had obtained lower
marks than the Petitioner.

      9. Mr. Singhvi also submitted that although Mr. Kumbhare
had joined as D.S.P. on 15th Septembec 1993, along with the
Petitioner, he had been given seniority with effect from 15th July,   F
1992, along with his other batch mates while the Petitioner was
given seniority from the date of his appointment as D.S.P.

     10. In support of his submissions, Mr. Singhvi referred to
and relied on the decision of this Court in P. M. Lath a vs. State    G
of Kera/a [(2003) 3 SCC 541), in which the equitable relief
granted to certain candidates holding a higher qualification than
was required was deprecated by this Court and such
appointments were set aside upon it being observed that
equity and law are twin brothers and law should be applied and        H
    474     SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A   interpreted equitably, but equity cannot override written or
    settled law.

         11. Mr. Singhvi submitted that the order passed by the
    Secretary, Home Department, Maharashtra State, which was
    later confirmed by the Administrative Tribunal and the High
8
    Court, was liable to be set aside along with the order passed
    by the Tribunal and the High Court.

          12. As against Mr. Singhvi's submissions, Mr. Vineet
    Dhanda, learned counsel, who appeared for the respondent
C   Nos.5 to 8, submitted that as would be evident from the seniority
    list of DSPs and ACP Police Officers (Unarmed) published on
    1st February, 2001 , that candidates who had been selected for
    the first 14 posts, which were reserved for candidates from the
    open category, had obtained higher marks than the petitioner.
D   It is thereafter that the remaining posts, which were reserved
    for candidates from the Scheduled Castes and Scheduled
    Tribes categories, were filled up with candidates from the
    reserved category who had obtained less marks than was
    obtained by the petitioner. Mr. Dhanda submitted that from the
E   said seniority list it would be clear that Shri Madhukar Shankar
    Talpade was the last Scheduled Caste candidate to be
    appointed, whose marks were less than that obtained by the
    petitioner. However, the said eventuality was on account of the
    fact that of the 22 vacancies, the first 14 were meant for
F   candidates from the open stream, whereas the next 8 posts
    were reserved for candidates from the Scheduled Castes and
    Scheduled Tribes categories.

         13. It was submitted that not having been selected for the
   post of DSP, the petitioner had been appointed to the post of
G Sales Tax Officer, Class-I, which was his second preference. It
   is only on account of fortuitous circumstances, when three of
   the original candidates selected, two from the open category
   and one from the reserved category, were found to be ineligible
  ..for appointment, that the petitioner and two others were
H ·recommended by the Maharashtra Public Service Commission
    HARISH MAGANLAL BAIJAL v. STATE OF                         475
   MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]
for appointment to the post of DSP. Mr. Dhanda submitted that          A
not having been initially selected, the petitioner could not claim
seniority over those candidates who had been selected at the
initial stage.

     14. Similar submissions were advanced on behalf of the
                                                                  8
State of Maharashtra by Mr. Arun R. Pednekar and, in addition,
it was pointed out that even if the three disqualified candidates
had not been considered initially, the petitioner would still not
have been included among the first 14 candidates since there
were others before him from the open category who had ·
obtained higher marks than him. It was urged that the last C
recommended candidate for the po~t of DSP/ACP in the open
category had secured 610 marks and there were three other
candidates from the open category above the petitioner who
had obtained higher marks than the petitioner, so that even if
the candidates who had been subsequently found ineligible had D
been considered at the first instance, the petitioner would not
have found a place within the first 14 candidates who were to
be appointed from the open category.

     15. It was lastly contended that having regard to the             E
submissions advanced on behalfof the petitioner vis-a-vis his
appointment as DSP along with the respondent No.7 Mr.
Kumbhare, the petitioner had, no doubt, joined his duties on
the same day as Mr. Kumbhare, but Mr. Kumbhare was a
candidate from the Scheduled Caste category and had,                   F
therefore, been included in the select list for appointment
subject to verification of his Caste Certificate. It was submitted
that Mr. Kumbhare's case stood on a different footing from that
of the petitioner and the contention of the petitioner in this
regard had been rightly rejected both by the Tribunal as well          G
as the High Court.

     16. Having carefully considered the submissions made on
behalf of the parties, we see no reason to interfere with the
order of the Tribunal as affirmed by the High Court. Admittedly,
out of all the 22 vacant posts, the first 14 posts were to be filled   H
    476     SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A 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 604 marks. In between the last candidate and the
B 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 could not have been included
  among the first 14 candidates, particularly when one of the
c ineligible candidates was from the Scheduled Caste and
  Scheduled Tribes category.

         17. Apart from the above, the selection of the petitioner
    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.
E   Kumbhare and he had joined the post of DSP on 15th
    September, 1993, their seniority should have been reckoned
    from the same day was rightly rejected both by the Tribunal and
    the High Court, having regard to the fact that while Mr.
    Kumbhare had been included in the first select list and his
F   appointment was also deferred on account of verification of his
    Caste Certificate, the appointment of the petitioner who had
    already been 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
G   the initial list of selected candidates. His claim for seniority
    could, therefore, be reckoned only from the date of his joining
    his duties as D.S.P.

        18. It is also to be kept in mind that Mr. Kumbhare had
    been initially selected for one of the reserved posts from the
H
     HARISH MAGANLAL BAIJAL v. STATE OF                         477
    MAHARASHTRA & ORS. [ALTAMAS KABIR, J.]
Scheduled Castes and Scheduled Tribes category and his                  A
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            B
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.                                                           C

     19. Even the petitioner's contention that he should have
been placed above Mr. Talpade lacks merit, since Mr. Talpade
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       D
as D.S.P. The reference made by Mr. Singhvi to Rule 4(2) of
the Maharashtra Civil Services (Regulation of Seniority) Rules,
1982, does not also help the petitioner's case. Rule 4 of the
said Rules deals with the general principles of seniority. Sub-
Rule (2) of Rule 4, which deals with inter se serniority of direct      E
recruits selected in one batch for appointment to any post,
cadre or service, reads as follows :

     "4. General principles of seniority :
                                                                        F
     (1) ......

     (2) Notwithstanding anything contained in sub-rule (1 ),-

      (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.

A                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;
B
           (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
c                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:

0                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
E                revised ranks;

           (C)   The seniority of a transferred Government servant
                 vis-a-vis the Government servants in the posts,
                 cadre or service to which he is transferred shall be
                 determined by the competent authority with due
F                regard to the class and pay-scale of the post, cadre
                 or service from which he is transferred, the length
                 of his service therein and the circumstances
                 leading to his transfer."

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,       A
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.
    21. For the aforesaid reasons, the Special Leave Petition       8
must fail and is, accordingly, dismissed. There will, however,
be no order as to costs.

N.J.                        Special Leave Petition dismissed.