REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(C) No.6556 of 2008

Harish Maganlal Baijal              … Petitioner  Vs.

State of Maharashtra & Ors. … Respondents

J U D G M E N T

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 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  

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.  

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-I, and he joined his  

duties in the said post on 22nd April, 1992.

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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 June, 1992, asking that the  

Maharashtra Public Service Commission 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 called upon by the State  

Government  to  join  duty  as  DSP/Assistant  

Commissioner  of  Police,  Class-I,  as  replacement  

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,  

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1993.  In the letter of recommendation written by  

the  Maharashtra  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 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 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  

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candidates from serial Nos.188 to 202 were all 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  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 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 higher marks than the Respondent No.5, he  

should have been placed at serial No.200 of the  

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gradation list instead of the Respondent No.5.     

5. Aggrieved by the above, the Petitioner made a  

representation  to  the  Maharashtra  Public  Service  

Commission,  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.     

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  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  

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September,  2004,  the  Maharashtra  Administrative  

Tribunal, Mumbai Bench, rejected 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.  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 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.  

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Singhvi  submitted  that  the  learned  Tribunal  had  

erred  in  dismissing  the  Petitioner’s  Original  

Application.  

8. As  far  as  the  High  Court  is  concerned,  Mr.  

Singhvi  submitted  that  it  had  proceeded  on  the  

erroneous  basis  that  the  Petitioner  had  been  

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 gradation list prepared  

by the Respondent 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 not  

have been given seniority over the Petitioner who  

joined his duties as Sales Tax Officer, Class-I, on  

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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 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 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 September,  

1993, along with the Petitioner, he had been given  

seniority with effect from 15th July, 1992, along  

with his other batch mates while the Petitioner was  

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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.  Latha vs.  State  of  Kerala  

[(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 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 Court, was liable to be set  

aside along with the order passed by the Tribunal  

and the High Court.   

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12. As  against  Mr.  Singhvi’s  submissions,  Mr.  

Vineet Dhanda, learned counsel, who appeared for  

the respondent 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.  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 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  

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said eventuality was on account of the fact that of  

the  22  vacancies,  the  first  14  were  meant  for  

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 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 recommended by the  

Maharashtra  Public  Service  Commission  for  

appointment  to  the  post  of  DSP.   Mr.  Dhanda  

submitted that not having been initially selected,  

the petitioner could not claim seniority over those  

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candidates  who  had  been  selected  at  the  initial  

stage.

14. Similar submissions were advanced on behalf of  

the 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 recommended  

candidate  for  the  post  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  been  

considered at the first instance, the petitioner  

would not have found a place within the first 14  

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candidates who were to be appointed from the open  

category.  

15. It was lastly contended that having regard to  

the  submissions  advanced  on  behalf  of  the  

petitioner vis-à-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, 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 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  

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affirmed 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 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 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.

17. Apart  from  the  above,  the  selection  of  the  

petitioner  along  with  two  other  candidates  as  

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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 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. 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 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  

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been  included  in  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  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  

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this  regard  is  the  correct  view  and  needs  no  

interference.

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 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  recruits  

selected in one batch for appointment to any post,  

cadre or service, reads as follows :

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“4. General principles of seniority : (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  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 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) 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  

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shall rank above those included in  the second part:

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;

(C) The  seniority  of  a  transferred  Government  servant  vis-à-vis  the  Government servants in the posts,  cadre or service to which he is  transferred shall be determined by  the competent authority with due  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.”   

                              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  

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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 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 must fail and is, accordingly, dismissed.  

There will, however, be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 07.05.2010  

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