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CASE NO.: Appeal (civil)  6763 of 2001

PETITIONER: Chandramohan Pandurang Kajbaje

RESPONDENT: State of Maharashtra & Ors.

DATE OF JUDGMENT: 07/01/2008

BENCH: H.K. SEMA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

H.K.SEMA,J

(1)             This appeal is directed against the judgment and  order dated 11.10.2000 of the Division Bench of the High  Court of Bombay in Writ Petition No. 3024 of 1997. (2)             This case has a chequered history.  The controversy,  in this appeal, is with regard to inter-se seniority between  Maharashtra Public Service Commission (PSC) selectee  employees and non-Public Service Commission employees.   Lengthy arguments have been advanced before us by learned  counsel on both sides.  However, the resolution of dispute  bogged down to a narrow compass.    (3)             The question raised is, as to whether the final inter- se seniority lists published on 6th March, 1997 and 26th  March, 1997 were in pursuance to the directions of this Court  or not.   (4)             This appeal is preferred by a Public Service  Commission selectee employee.  The undisputed facts are:                 The respondents were non-PSC selectee employees.   They were appointed in between 1962 and 1965 by executive  orders on ad-hoc basis without resorting to process of  selection by Public Service Commission.  Prior to their  appointment, by a Notification dated 22nd May, 1957, the  Government of Maharashtra, in exercise of the powers  conferred by the proviso to Article 309 of the Constitution,  amended the Bombay Civil Services Classification and  Recruitment Rules, 1939.  Rule 2 (B) thereof provides that  appointments of Lower Division -Clerks, Clerk-Typist, Typists  shall be made by nomination on the result of a competitive  examination held by the Commission.   (5)             It is undisputed that the appointments of  respondents were not made on the result of a competitive  examination held by the Commission.  It is also not disputed  that their services had never been regularized till coming into  force the Government resolution dated 1st March, 1974, which  is apple of discord in these proceedings.   (6)             The Government Resolution No. EXM-1074-Q,  Sachivalaya, Bombay \026 32, BR, dated 1st March, 1974 is  relevant for proper adjudication of the present controversy,  and, therefore, it is extracted:  \023Persons temporarily appointed to Ministerial posts  in Government Offices in Greater Bombay pending  availability of P.S.C. selected candidates ---  Regularisation of appointments of.

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GOVERNMENT OF MAHARASHTRA General Administration Department,  Resolution No. EXM-1074-Q, Sachivalaya, Bombay \026 32, BR, Dated the 1st March, 1974

RESOLUTION:  Direct recruitment to various  ministerial posts in Government offices in Greater  Bombay, including Secretariat Departments, viz.,  Clerks, Typists, Stenographers, Assistants etc. is  made on the basis of the results of the competitive  examinations held by the Maharashtra Public  Service Commission.  During the course of last  several years, a number of candidates who have not  been selected by the Public Service Commission  came to be recruited to these posts, pending  allotment of candidates selected by the Public  Service Commission.  Many of these persons have  put in many years of service.  The question  regarding regularization of appointment of these  persons has been under the consideration of  Government for some time past.  Government is  now pleased to direct, after consulting the  Maharashtra Public Service Commission, that the  non-P.S.C. who were employed in the ministerial  posts, viz. Clerks, Typists, Clerk-Typists, Steno- Typists and stenographers in the Secretariat  Departments and various Government Offices in  Greater Bombay prior to 1st January, 1971 and who  are in the service of Government on the date of  issue of these orders should continue in  Government service, without being replaced by the  candidates selected by the Maharashtra Public  Service Commission provided they fulfil the  following conditions:- (1)     The non-P.S.C. persons concerned should have  the minimum educational qualifications  prescribed for the posts to which they were  appointed.  (2)     They were within the age-limits prescribed for  appointment to the respective posts held by  them at the time of their initial appointment to  such posts.  

2. The above orders will also be applicable to the  non-P.S.C. persons who were recruited in various  Government Offices prior to 1st January 1971 but  were subsequently retrenched and provided with  alternative employment, according to the orders  contained in Government Resolution, General  Administration Department No. AEM-1071-J, dated  the 1st June, 1971 and are in Government service  on the date of issue of these orders.  

3. The candidates who were recruited in the  Secretariat Departments and various Government  Offices on or before 1st January, 1971 will be  replaced by the candidates selected by the  Commission as soon as such candidates are  available, unless in the meanwhile, they appear at  the competitive examinations, held by the Public  Service Commission and are selected by the  Commission for appointment to the respective posts  held by them.

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4. The seniority of the non-P.S.C. persons referred  to in para 1 and 2 above vis-‘-vis the candidates  selected by the public Service Commission working  in various Departments/ Offices should be fixed  with reference to the date of issue of this order.  The  inter-se seniority of these non-P.S.C. persons  working in a particular Department/ Office should  however be according to their length of service in  the respective posts in their Departments.  In other  words, the Public Service Commission selected  candidates working in various Departments/ Offices  prior to the date of this resolution should be treated  as senior to the non-P.S.C. persons referred to in  para 1 and 2.                                                  (emphasis supplied)

5. Government is very much concerned over the  practice of recruitment of non-P.S.C. candidates in  Government Offices in Greater Bombay all these  years.  Government has therefore decided that there  should be an absolute ban on direct recruitment to  various ministerial posts in Government Offices in  Greater Bombay through the Employment Exchange  or any other source.  Under no circumstances  should such a recruit be continued beyond a period  of three months.   

6. All Heads of Departments and Offices should  follow the above instructions scrupulously.  The  receipt of this resolution should be acknowledged.  

By order and in the name of the Governor of  Maharashtra.  

                                                       K.G. Paranjpe                 Secretary to Government of Maharashtra\024

(7)             It is clear from the above Resolution that the direct  recruitment to various ministerial posts in Government offices  in Greater Bombay, including Secretariat Departments, viz.,  Clerks, Typists, Stenographers, Assistants etc. is made on the  basis of the results of the competitive examinations held by  the Maharashtra Public Service Commission.  The Government  also took note of the fact by the said Resolution that during  the course of last several years, a number of candidates  (respondent\022s group), who had not been selected by the Public  Service Commission came to be recruited to the said posts,  pending allotment of candidates selected by the Public Service  Commission.  The Resolution further noted the fact that many  of those persons had put in many years of service.  The  Resolution also revealed that the questions of regularization of  appointment of those persons had been under the  consideration of the Government for some time past.  The  Resolution also speaks about the decision taken  by the  Government in consultation with Public Service Commission,  that the non-P.S.C. who were employed in the ministerial  posts, viz. Clerks, Typists, Clerk-Typists, Steno-Typists and  stenographers in the Secretariat Departments and various  Government Offices in Greater Bombay prior to 1st January,  1971 and who were in the service of Government on the date  of issue of the said Resolution should continue in Government  service, without being replaced by the candidates selected by  the Maharashtra Public Service Commission provided they

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had the minimum educational qualifications and were within  the prescribed age-limit at the time of their initial  appointment.  

(8)             The Resolution further made it clear that the  seniority of the non-P.S.C. persons vis-‘-vis the candidates  selected by the public Service Commission working in various  Departments/ Offices should be fixed with reference to the  date of issue of the order.  It was further made clear that the  inter-se seniority of the said non-P.S.C. persons working in a  particular Department/ Office should however be according to  their length of service in the respective posts in their  Departments.  The Resolution specifically clarified in  paragraph 4 as under:  \023In other words, the Public Service Commission  selected candidates working in various  Departments/ Offices prior to the date of this  resolution should be treated as senior to the non- P.S.C. persons referred to in para 1 and 2.\024

(9)             The non-P.S.C. employees (respondents herein) have  not challenged the Government Resolution dated 1st March,  1974 in any forum.  (10)            On a cursory reading of the Resolution, as referred  to above, we have no doubt in our mind that the Public Service  Commission selected employees prior to the date of  Resolution, were correctly treated as senior to the non-P.S.C.  employees.  (11)            In service jurisprudence the incumbent who did not  belong to the stream of regularly and lawfully appointed  through Public Service Commission cannot claim seniority vis- ‘-vis those who have been regularly and properly appointed  through the Commission, till the appointments have become  regular and are regularized by the appointing authority as a  result of which their stream joins the regular stream.  In  Shitla Prasad Shukla (appellant) v. State of U.P. & Ors.  (respondents) 1986 Supp. SCC 185, this Court held at page  SCC 190 para 10 as under:  \02310. An employee must belong to the same stream  before he can claim seniority vis-a-vis others. One  who belongs to the stream of lawfully and regularly  appointed employees does not have to contend with  those who never belonged to that stream, they  having been appointed in an irregular manner.  Those who have been irregularly appointed belong  to a different stream, and cannot claim seniority vis- a-vis those who have been regularly and properly  appointed, till their appointments became regular or  are regularized by the appointing authority as a  result of which their stream joins the regular  stream. At that point of confluence with the regular  stream, from the point of time they join the stream  by virtue of the regularization, they can claim  seniority vis-a-vis those who join the same stream  later. The latecomers to the regular stream cannot  steal a march over the early arrivals in the regular  queue. On principle the appellants cannot therefore  succeed. What is more in matters of seniority the  court does not exercise jurisdiction akin to appellate  jurisdiction against the determination by the  competent authority, so long as the competent  authority has acted bona fide and acted on  principles of fairness and fair play. In a matter  where there is no rule or regulation governing the

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situation or where there is one, but is not violated,  the court will not overturn the determination unless  it would be unfair not to do so. In any view of the  matter the appellant who did not even belong to the  stream of regularly (he was allowed to teach only in  an irregular and unauthorised manner) and lawfully  appointed lecturers cannot claim seniority against  any one already in the stream before he joined the  stream himself. The view taken by the High Court is  unexceptionable.\024 (12)            That apart, the Government Resolution of 1st March,  1974 has been dealt with by this Court in R.S. Makashi &  Ors. (appellant) v. I.M. Menon & Ors. (respondents), (1982)  1 SCC 379.  In fact Makashi\022s case (supra) was a dispute  relating to inter-se seniority between the direct recruits and  the incumbents coming from different departments.  However,  a three-Judge Bench of this Court had also occasion to deal  with the Government Resolution dated 1st March, 1974 in  paragraph 25 of the Judgment as under:  \02325. On March 1, 1974, the Government of  Maharashtra passed a Resolution directing that  non-P.S.C. persons who were employed in the  ministerial posts, namely, Clerks, Typists, Clerk- cum-Typists, Steno-typists and Stenographers in  the Secretariat departments and various  government offices in Greater Bombay, prior to  January 1, 1971, and who were in the service of  Government on the date of the issue of the said  order, should continue in government service  without being replaced by the candidates selected  by the Maharashtra Public Service Commission,  provided they possessed the minimum educational  qualifications prescribed for the post to which they  were appointed and they were also within the age  limits prescribed for appointment to the respective  posts held by them at the time of their initial  appointment to such posts. It was made very clear  in para 4 of the said order that the seniority of the  non-P.S.C. persons on whom the benefit of  permanent absorption in service was conferred  thereunder was to be fixed only with reference to  the date of the said order and that all the Public  Service Commission selected candidates who were  working in the various departments/offices prior to  the date of the said Resolution would be treated as  seniors in relation to the non-P.S.C. persons  covered by the said order. It is manifest that this  order did not in any way affect the inter se seniority  between the writ petitioners and the \021released  government servants\022 drafted to the BRO from other  government departments wherein they had been  holding posts on a regular basis after having passed  the Public Service Commission examination. It is  also worthy of note that the Government Resolution  of 1974 was a general order applicable to all the  non-P.S.C. personnel functioning on a temporary or  ad hoc basis in the Secretariat as well as the  various departments of the State Government and  except as indicated above it did not have any special  applicability to the BRO.\024

(13)            The decision in Makasi\022s case has been followed by  a two-Judge Bench of this Court in Chandramohan P  Kajbaje & Ors. (Petitioners) v. State of Maharashtra & Ors.  (respondents) in Special Leave Petiton Nos. 28017-28024 of

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1995 disposed of on 8th November, 1996. (14)            In Kajbaje\022s case (supra) the Government Resolution  dated 1st March, 1974 was dealt with by this Court \026 not only  the decision in Makasi\022s case was referred to but a direction  was also issued to the State Government to revise the seniority  lists in terms of the Resolution dated 1st March, 1974 within  four months\022 time.  It is in pursuance of the said direction that  final seniority lists were prepared on 6th March, 1997 and 26th  March, 1997.   (15)            It appears that both the Makasi\022s case and Kajbaje\022s  case (supra) were brought to the notice of the Division Bench  of the High Court, but we notice with dismay that the High  Court has brushed aside the judgment of the Supreme Court  on the ground that the said observations of the Supreme  Court are only an obiter dicta and they cannot be treated as  ratio decidendi.  It is most unfortunate.  The High Court has  failed to take note of the fact that a direction was issued by  this Court.  A direction issued by this Court cannot be treated  as \021obiter dicta\022.   It appears that the High Court did not care to  read the judgment of this Court in between the lines in  Makasi\022s case followed by  Kajbaje\022s case.  This is where the  High Court went wrong creating multiplicity of litigation  instead of giving a quietus to the litigation.  (16)            In the result, this appeal is allowed.  We hold that  the final seniority lists, published on 6th March, 1997 and 26th  March, 1997, are validly made and in pursuance of the  directions of this Court, as referred to above.  The impugned  order of the High Court dated 11th October, 2000 is set aside.   Parties are asked to bear their own costs.