# SUDHAKAR BABURAO NANGNURE v. NORESHWAR RAGHUNATHRAO SHENDE & ORS

- **Citation:** [2019] 4 S.C.R. 945
- **Court:** Supreme Court of India
- **Decided:** 2019-03-05
- **Case number:** Civil Appeal Nos. 2468-2470 of 2019
- **Bench:** Dr Dhananjaya Y Chandrachud, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sudhakar-baburao-nangnure-v-noreshwar-raghunathrao-shende-ors-33559
- **Pages:** 50

## Headnote

Service Law - Promotion - 'Catch-up' Rule - Appellant,
belonging to open category, joined service as Planning Assistant
in the Government of Maharashtra - Appellant and the first
respondent, Scheduled Caste, selected for the post of Town Planner
on 1st July, 1992 - Appellant promoted as Deputy Director of Town
Planning (DDTP) on 1st November, 2003- First respondent promoted
as DDTP on 3rd August, 2006 - In the promotional cadre of Joint
Director of Town Planning (JDTP), the first respondent was promoted
on 11th August, 2011 while the appellant was promoted as JDTP on
2nd July, 2013 - Appellant filed OA before the Maharashtra
Administrative Tribunal - In the meanwhile, the first respondent
was promoted as Director of Town Planning (DTP) on 30th April,
2016 - OA allowed - High Court set aside the said decision -
Appellant filed Special Leave Petition - Withdrawn - Appellant filed
review before the High Court - Dismissed - Appellant's case that
once he was promoted as JDTP, the 'catch-up' rule must govern
and consequently, he must gain seniority over the first respondent
and that the first respondent was not entitled to claim consequential
seniority on the basis of his earlier promotion in the cadre of JDTP
- Held: Preliminary objection to the present appeal that recourse
to Supreme Court was barred after the High Court decided the
review petitions, not accepted - Government Resolution dated 20th
October, 1997 was issued stipulating that an officer belonging to
Backward Class will retain seniority in the promotional cadre and
that it was not necessary to revise the seniority - GR dated 20th
March, 2003 was issued referring to the said GR clarifying that
the seniority between backward class and non-backward class
candidates in government service in the promotional cadre would
be governed by the regular date of promotion - Incorporating the
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principle of consequential seniority, GR dated 20th March, 2003
adverted to r.4, 1982 Rules which stipulated that seniority in a post
is determined by the length of continuous service - Further, GR
dated 20th March 2003 has not been abrogated upon the enactment
of the 2004 Act - Said GR was not challenged before the Tribunal
- Such a challenge cannot be entertained at this stage - Further,
eligibility has to be considered on the date of the occurrence of the
vacancy - On 30th April, 2016, the appellant did not fulfill the
eligibility of three years' experience as JDTP, required for the post
of DTP - Seniority by itself cannot prevail where a senior lacks
eligibility for promotion - Even if accepted, the applicability of the
catch-up rule will also not obviate the requirement of the appellant
fulfilling the condition of eligibility for promotion, on the date when
the vacancy occurred - Appellant has also not challenged the
appointment of the first respondent as JDTP - Judgment of the High
Court does not call for interference - Maharashtra Civil Services
(Regulation of Seniority) Rules, 1982 - r.4 - Maharashtra State
Public Services Reservation for Scheduled Castes, Scheduled Tribes,
Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes Act, 2001 [Act VIII of 2004]
- ss. 3-6, 11 - Directorate of Town Planning and Valuation
(Recruitment) Rules, 2011 - r-3 - Consitution of India - Art. 16.
Service Law - Promotion - Seniority and Eligibility - Held:
Seniority and eligibility are distinct concepts in service jurisprudence
- Seniority by itself cannot prevail where a senior lacks eligibility
for promotion to a higher post.
The appellant, belonging to open category, joined the service
as Planning Assistant in the Government of Maharashtra. The
appellant and the first respondent, Scheduled Caste, were
selected for the post of Town Planner on 1st July, 1992. Appellant
was promoted as Deputy Director of Town Planning (DDTP)

## Text

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SUDHAKAR BABURAO NANGNURE
v.
NORESHWAR RAGHUNATHRAO SHENDE & ORS.
(Civil Appeal Nos. 2468-2470 of 2019)
MARCH 05, 2019
 [DR DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Service Law - Promotion - 'Catch-up' Rule - Appellant,
belonging to open category, joined service as Planning Assistant
in the Government of Maharashtra - Appellant and the first
respondent, Scheduled Caste, selected for the post of Town Planner
on 1st July, 1992 - Appellant promoted as Deputy Director of Town
Planning (DDTP) on 1st November, 2003- First respondent promoted
as DDTP on 3rd August, 2006 - In the promotional cadre of Joint
Director of Town Planning (JDTP), the first respondent was promoted
on 11th August, 2011 while the appellant was promoted as JDTP on
2nd July, 2013 - Appellant filed OA before the Maharashtra
Administrative Tribunal - In the meanwhile, the first respondent
was promoted as Director of Town Planning (DTP) on 30th April,
2016 - OA allowed - High Court set aside the said decision -
Appellant filed Special Leave Petition - Withdrawn - Appellant filed
review before the High Court - Dismissed - Appellant's case that
once he was promoted as JDTP, the 'catch-up' rule must govern
and consequently, he must gain seniority over the first respondent
and that the first respondent was not entitled to claim consequential
seniority on the basis of his earlier promotion in the cadre of JDTP
- Held: Preliminary objection to the present appeal that recourse
to Supreme Court was barred after the High Court decided the
review petitions, not accepted - Government Resolution dated 20th
October, 1997 was issued stipulating that an officer belonging to
Backward Class will retain seniority in the promotional cadre and
that it was not necessary to revise the seniority - GR dated 20th
March, 2003 was issued referring to the said GR clarifying that
the seniority between backward class and non-backward class
candidates in government service in the promotional cadre would
be governed by the regular date of promotion - Incorporating the
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principle of consequential seniority, GR dated 20th March, 2003
adverted to r.4, 1982 Rules which stipulated that seniority in a post
is determined by the length of continuous service - Further, GR
dated 20th March 2003 has not been abrogated upon the enactment
of the 2004 Act - Said GR was not challenged before the Tribunal
- Such a challenge cannot be entertained at this stage - Further,
eligibility has to be considered on the date of the occurrence of the
vacancy - On 30th April, 2016, the appellant did not fulfill the
eligibility of three years' experience as JDTP, required for the post
of DTP - Seniority by itself cannot prevail where a senior lacks
eligibility for promotion - Even if accepted, the applicability of the
catch-up rule will also not obviate the requirement of the appellant
fulfilling the condition of eligibility for promotion, on the date when
the vacancy occurred - Appellant has also not challenged the
appointment of the first respondent as JDTP - Judgment of the High
Court does not call for interference - Maharashtra Civil Services
(Regulation of Seniority) Rules, 1982 - r.4 - Maharashtra State
Public Services Reservation for Scheduled Castes, Scheduled Tribes,
Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward
Category and Other Backward Classes Act, 2001 [Act VIII of 2004]
- ss. 3-6, 11 - Directorate of Town Planning and Valuation
(Recruitment) Rules, 2011 - r-3 - Consitution of India - Art. 16.
Service Law - Promotion - Seniority and Eligibility - Held:
Seniority and eligibility are distinct concepts in service jurisprudence
- Seniority by itself cannot prevail where a senior lacks eligibility
for promotion to a higher post.
The appellant, belonging to open category, joined the service
as Planning Assistant in the Government of Maharashtra. The
appellant and the first respondent, Scheduled Caste, were
selected for the post of Town Planner on 1st July, 1992. Appellant
was promoted as Deputy Director of Town Planning (DDTP) on
1st November, 2003 and the first respondent was promoted as
DDTP on 3 Aug. 2006. In the promotional cadre of Joint Director
of Town Planning (JDTP), the first respondent was promoted on
11th August 2011 while the appellant was promoted as JDTP on
2nd July, 2013. The appellant filed OA before the Maharashtra
Administrative Tribunal. In the meanwhile, the first respondent
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was promoted as Director of Town Planning (DTP) on 30th April,
2016. OA was allowed. The High Court set aside the said decision.
Appellant filed Special Leave Petition, which was withdrawn with
the liberty to file review petition before the High Court. Appellant
filed review petition before the High Court, which was dismissed.
Hence, the present appeals.
Dismissing the appeals, the Court
HELD: Civil Appeal Nos 2468-2470 of 2019 @ Special Leave
Petition (Civil) Nos. 8769-8771 of 2018:
1.1 On 20 October 1997, a Government Resolution was
issued stipulating that an officer belonging to a Backward Class
will retain seniority in the promotional cadre and that it is not
necessary to revise the seniority. On 20 March 2003, another
GR was issued inter alia with reference to the earlier GR noted
above. The GR states that following the amendment to Article
16 by the insertion of Clause (4A), it has been decided that the
instructions for regulating seniority of officers belonging to the
Backward Classes and the general category in the promoted cadre
would be governed by the earlier Government Resolutions dated
21 June 1982 and 20 October 1997. The GR clarified that the
seniority between backward class and non-backward class
candidates in government service in the promotional cadre would
be governed by the regular date of promotion. [Paras 49, 50]
[978-E; 979-A-B]
1.2 The GR dated 20 March 2003 was issued after the
constitutional amendment to Article 16 (4A) by which
consequential seniority was incorporated into that provision.
Maharashtra State Public Services Reservation for Scheduled
Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis),
Nomadic Tribes, Special Backward Category and Other Backward
Classes Act, 2001 [Act VIII of 2004] (Reservation Act 2004) was
enacted by the State legislature in 2001. The assent of the
Governor was received on 20 January 2004 and it was published
in the Official Gazette on 22 January 2004. The enactment has
come into force after the 85th constitutional amendment. Prior
to the enforcement of the Act, reservations were confined upto
the entry level in Group I posts. As a result of the enactment of
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the law, reservations are applicable to all appointments in public
services and posts [except categories covered by clauses (a) to
(d) of sub-section (1) of Section 3]. Section 3 deals with the
applicability of the Act and Section 4 deals with reservation and
percentages. [Paras 52-54] [980-A, F-G; 981-A]
1.3 Sub-section (1) of Section 5 stipulates that reservation
in promotion shall be at all stages of promotions. Consequently,
promotions within Class I posts are also governed by the rule of
reservation. A provision for reservation can be incorporated in
an executive order. The Reservation Act has not dealt with issue
of consequential seniority. Sub-section (2) of Section 5 saves
government orders providing for reservation of any posts to be
filled in promotion which were in force on the date of the enactment
of the Act. Similarly, the proviso to sub-section (1) of Section 6
saves government orders regarding the filling up of unfilled posts
reserved for Backward Class candidates in force on the date of
the commencement of the Act. The GR dated 20 March 2003
deals with the determination of seniority while sub-section (2) of
Section 5 deals with orders providing for reservation. The GR
dated 20 March 2003 is not a government order which falls within
the purview of either sub-section (2) of Section 5 or the proviso
to sub-section (1) of Section 6. However, the enactment of the
Act by the state legislature cannot be construed as a legislative
intent to override or abrogate the principle of consequential
seniority incorporated in government resolutions. A provision
for consequential seniority can certainly be incorporated in an
executive order issued in pursuance of the provisions of Article
162 of the Constitution. The Government Resolution dated 20
March 2003 has not been abrogated upon the enactment of the
Reservation Act 2004. The Reservation Act 2004 does not deal
with the principle of consequential seniority. It would be
impermissible to read the Act as having superseded the applicable
government orders on consequential seniority, in the absence of
clear words providing for such an effect. [Paras 56, 59 and 60]
[982-H; 983-E-H; 984-A-C]
1.4 The GR dated 20 March 2003, while incorporating the
principle of consequential seniority, reiterated the GR dated 20
October 1997. It also adverts to the Seniority Rules 1982 of which
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Rule 4 specifically stipulates that the length of continuous service
will be determinative of seniority in respect of posts and cadres
in the service. A challenge to the GR dated 20 March 2003 is
conspicuous by its absence in the reliefs which were sought before
the Maharashtra Administrative Tribunal. Entertaining a challenge
to the validity of a Government Resolution incorporating the
principle of consequential seniority without a specific challenge
being addressed before the Tribunal would simply be
impermissible. Entertaining such a challenge at this stage will
have serious consequences in the entire State of Maharashtra by
upsetting a significant number of promotions which may have
already been granted to candidates belonging to the reserved
category. The State government, in the pleadings before the
Tribunal and the High Court was not called upon to justify the
basis of its decision to adopt consequential seniority in the
absence of a challenge being squarely set up in the forum of first
instance. A challenge to the resolution providing for consequential
seniority is indeed a serious matter. Such a challenge calls upon
the court to upset a policy circular which has been issued with
the avowed objective of safeguarding consequential seniority
which was, as the constitutional history indicates, a clear purpose
underlying the 85th Amendment to the Constitution. Such
constitutional challenges cannot be bandied about without specific
pleadings. Such an exercise would be impermissible in the
absence of a frontal challenge. [Paras 62, 64 and 65] [984-E-F;
985-C-F]
1.5 In the present case, there is a specific provision for
consequential seniority in the GR dated 20 March 2003. Absent
a challenge to the GR in the proceedings which were initiated
before the Tribunal, such a challenge cannot be entertained at
this stage. [Paras 70] [987-B]
1.6 Eligibility has to be considered on the date of the
occurrence of the vacancy. On 30 April 2016, the appellant did
not fulfill the eligibility required for the post of DTP. In assailing
the decision of the first respondent, the appellant has submitted
that the promotion of the first respondent as JDTP on 11 August
2011 was under a circular dated 27 October 2008 which has been
struck down by the Bombay High Court. The High Court in
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dealing with this submission has held that the order of promotion,
when it was issued on 11 August 2011 had an imprint of legality.
Moreover, even the appellant adopted the position that since
promotion was given to the first respondent in terms of the
Government Circular dated 27 October 2008, he believed that
he had no reason to object to the seniority list of JDTP published
on 28 August 2014. That apart, the High Court has noted that
after the promotion of the first respondent on 11 August 2011,
the appellant was promoted on 2 July 2013 and it was only when
the second seniority list was finalized on 15 January 2016 that
the appellant filed an OA in February 2016. In the meantime, the
appellant had worked as JDTP for a period of nearly five years.
The delay has, justifiably weighed with the High Court. Coupled
with this is an equally relevant consideration which must weigh
with the court: the appellant has not challenged the appointment
of the first respondent as JDTP. Having failed to challenge the
appointment, it is now not open to the appellant to assert that the
appointment must be treated as void on the ground that the
circular on the basis of which the first respondent was promoted
has subsequently been set aside in a judgment of the Bombay
High Court.[Paras 78, 79] [990-D-G; 991-A-B]
1.7 The appointment of the first respondent as JDTP has
not been assailed in the OA filed before the Tribunal.
Consequently, it is not open to the appellant to lay a challenge on
the ground that the appointment was based on a circular which
was held to be invalid after the appointment was made. The
submission that the appointment is fortuitous within the meaning
of Rule 3(f) is but another modality of seeking to deprive the first
respondent of the consequence of his appointment and to his
consequential seniority. 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, Directorate of Town Planning and
Valuation (Recruitment) Rules 2011. Seniority and eligibility are
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distinct concepts in service jurisprudence. Seniority by itself
cannot prevail where a senior lacks eligibility for promotion to a
higher post. Even if the contention of the appellant on the
applicability of the catch-up rule were to be accepted, that will
not obviate the requirement of his fulfilling the condition of
eligibility for promotion to the next higher post, on the date when
the vacancy occurred. [Paras 80-82] [991-C-D, F-G, 992-E-F]
1.8 The appellant failed to challenge the appointment of
the first respondent as JDTP on 11 August 2011. The appellant
failed to challenge the circular dated 20 March 2003 providing
for consequential seniority. The substratum of the challenge which
has been developed before Supreme Court is without basis in
the pleadings. The ingenuity and industry of the learned counsel
who appeared on behalf of the appellant cannot, in the ultimate
analysis, be a substitute for a deficient pleading. The appellant
did not at any stage challenge the appointment of the respondent
to the post of JDTP nor did he challenge the GR dated 20 March
2003 providing for consequential seniority. The appellant was
not eligible for the post of DTP on 30 April 2016, when the vacancy
occurred. He cannot, hence, challenge the appointment of the
first respondent. The judgment of the High Court does not call
for any interference. [Paras 83, 85 and 86] [992-F-G; 993-D-E]
Civil Appeal Nos 2471-2473 of 2019 @ Special Leave Petition
(Civil) Nos. 14041- 14043 of 2018:
1.9 In view of the judgment in Civil Appeals @ Special
Leave Petition (Civil) Nos. 8769-8771 of 2018, these appeals
are also dismissed. [993-G]
MA Nos 2983-2985 of 2019 in Special Leave Petition (Civil)
Nos. 33086-33088 of 2017
1.10 In view of the judgment in Civil Appeals @ Special
Leave Petition (Civil) Nos. 8769-8771 of 2018, these MAs are
disposed of, in terms of the judgment and order in the lead
appeals. [994-B]
Suseel Finance & Leasing Co. v. M Lata (2004) 13 SCC
675; Abhishek Malviya v. Additional Welfare
SUDHAKAR BABURAO NANGNURE v. NORESHWAR
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Commissioner (2008) 3 SCC 108 ; Vinod Kapoor v State
of Goa (2012) 12 SCC 378 : [2012] 8 SCR 1089;
Sandhya Educational Society v. Union of India
(2014) 7 SCC 701; Bussa Overseas and Properties
Private Limited v. Union of India (2016) 4 SCC 696:
[2016] 1 SCR 266 - distinguished.
Indra Sawhney v Union of India (1992) 3 Suppl. SCC
217 : [1992] 2 Suppl. SCR 454 - followed.
Maharashtra Chamber of Housing Industry v Municipal
Corporation of Greater Mumbai Decision dated
16th August 2016 in SLP (C) No.024660 & 024661
of 2016; R Prabha Devi v Union of India (1988) 2
SCC 233:[1988] 3 SCR 147 - relied on.
M Nagaraj v Union of India (2006) 8 SCC 212; Magas
Varga Karmachari Adhikari Suraksha Mahasangh v
State of Maharshtra Decision of Bombay High Court
in Writ Petition No. 3077 of 2011; Union of India v
Virpal Singh Chauhan (1995) 6 SCC 684 : [1995] 4
Suppl. SCR 158; Ajit Singh Januja v State of Punjab
(1996) 2 SCC 715 : [1996] 3 SCR 125 ; Jagdish Lal v
State of Haryana (1997) 6 SCC 538 ; Ajit Singh (II) v.
State of Punjab (1999) 7 SCC 209 : [1999] 2 Suppl.
SCR 521; Jarnail Singh v. Lachhmi Narain Gupta
(2018) 10 SCC 396; Suraj Bhan Meena v State of
Rajasthan (2011) 1 SCC 467 : [2010] 14 SCR 532;
Uttar Pradesh Power Corporation Limited v. Rajesh
Kumar (2012) 7 SCC 1: [2012] 4 SCR 118; S Panneer
Selvam v. State of Tamil Nadu (2015) 10 SCC 292;
B K Pavitra v. Union of India (2017) 4 SCC 620 : [2017]
1 SCR 631; Gaurav Pradhan v State of Rajasthan
(2018) 11 SCC 352 : [2017] 8 SCR 951; Roshan Lal
v .International Airport Authority of India (1980) Suppl.
SCC 449; P Chitharanja Menon v. A Balakrishnan
(1977) 3 SCC 255 : [1977] 3 SCR 687; Amarjeet
Singh v. Devi Ratan (2010) 1 SCC 417 : [2009] 15
SCR 1010; Palure Bhaskar Rao v. P Ramaseshaiah
(2017) 5 SCC 783 : [2017] 3 SCR 226; Sanjay K
Sinha-II v. State of Bihar (2004) 10 SCC 734 : [2004]
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2 Suppl. SCR 834 ; Bhupendra Nath Hazarika v. State
of Assam (2013) 2 SCC 516 : [2012] 12 SCR 587; PV
George v. State of Kerala (2007) 3 SCC 557 : [2007] 1
SCR 1198 ; BA Linga Reddy v. Karnataka State
Transport Authority (2015) 4 SCC 515 - referred to.
Case Law Reference
(2006) 8 SCC 212
referred to
Para 9
(2004) 13 SCC 675
 distinguished
Para 23
(2008) 3 SCC 108
distinguished
Para 25
[2012] 8 SCR 1089
distinguished
Para 26
(2014) 7 SCC 701
distinguished
Para 26
[2016] 1 SCR 266
distinguished
Para 26
[1992] 2 Suppl. SCR 454
followed
Para 31
[1995] 4 Suppl. SCR 158
referred to
Para 36
[1996] 3 SCR 125
referred to
Para 38
(1997) 6 SCC 538
referred to
Para 39
[1999] 2 Suppl. SCR 521
referred to
Para 39
(2018) 10 SCC 396
referred to
Para 42
[2010] 14 SCR 532
referred to
Para 43
[2012] 4 SCR 118
referred to
Para 43
(2015) 10 SCC 292
referred to
Para 43
[2017] 1 SCR 631
referred to
Para 43
[2017] 8 SCR 951
referred to
Para 52
(1980) Suppl. SCC 449
referred to
Para 78
[1977] 3 SCR 687
referred to
Para 78
[2009] 15 SCR 1010
referred to
Para 78
[1988] 3 SCR 147
relied on
Para 82
[2017] 3 SCR 226
referred to
Para 82
SUDHAKAR BABURAO NANGNURE v. NORESHWAR
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[2004] 2 Suppl. SCR 834
referred to
Para 84
[2012] 12 SCR 587
referred to
Para 84
[2007] 1 SCR 1198
referred to
Para 84
(2015) 4 SCC 515
referred to
Para 84
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 24682470 of 2019.
From the Judgment and Order dated 21.03.2018 of the High Court
of Judicature at Bombay in Review Petition No. 17 of 2018 in Writ
Petition No. 9291 of 2016, Review Petition No. 18 of 2018 in Writ Petition
No. 8859 of 2016 and Review Petition No. 19 of 2018 in Writ Petition
No. 8860 of 2016.
With
Civil Appeal Nos. 2471-2473 of 2019 And M.A. Nos. 2983-2985
of 2018 in S.L.P.(Civil) Nos. 33086-33088 of 2017.
 Chander Uday Singh, Paramjit Singh Patwalia, V. Giri, R.P. Bhatt,
Sanjay R. Hegde, Sr. Advs., Sagar N. Pahune Patil, Gopal Balwant
Sathe, Ravindra Keshavrao Adsure, Siddheshwar N. Biradar, Ms.
Natasha Dalmia, Nishant Ramakantrao Katneshwarkar, Makarand D.
Adkar, Braj K. Mishra, Vijay Kumar, Mustafa A. Khan, Sagar Mane,
Amit Bhardwaj, Krishna Dev J., Ms. Aparna Jha, Sudhanshu S.
Choudhary, Ms. Surabhi Guleria, Satyajit A. Desai, Ms. Anagha A. Desai,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
CIVIL APPEAL Nos.2468-2470 OF 2019:
@ SPECIAL LEAVE PETITION (CIVIL) Nos. 8769-8771 OF
2018
1. Leave granted.
2. The High Court of Judicature at Bombay, speaking through a
Division Bench, dismissed three review petitions seeking a review of its
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judgment dated 16 November 2017. The review petitions were instituted
before the High Court following an order of a two judge Bench of this
Court dated 12 December 2017. Finding that there was no reason to
review the earlier judgment, consistent with the settled parameters
governing the exercise of that jurisdiction, the High Court dismissed the
review petitions on 21 March 2018.
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:
5. The appellant joined service as a Planning Assistant in the
Government of Maharashtra on 6 May 1983. Both the appellant and the
first respondent were selected for the post of Town Planner on 1 July
1992, in the course of a process initiated by the Maharashtra Public
Service Commission1. The appellant was promoted as Deputy Director
of Town Planning2 on 1 November 2003, by a nomination through the
MPSC. The first respondent was promoted as DDTP on 3 August 2006.
POSTIG
SUDHAKAR AGURE
(OPE CATEGORY)
ORESHWAR SHEDE
(SC)
Planning Assistant
6.5.1983
--
Assistant
Town
Planner
6.5.1988
--
Town Planner
1.7.1992
1.7.1992
Dy. Director of
Town
Planning
(DDTP)
1.11.2003
3.8.2006
Joint Director of
Town
Planning
(JDTP)
2.7.2013
11.8.2011
Director of Town
Planning
(DTP,
MS)
Eligible to be promoted
on 3.7.2016
Promoted on
30.4.2016 subject to
outcome of O.A.
No.269/2016.

SUDHAKAR BABURAO NANGNURE v. NORESHWAR
RAGHUNATHRAO SHENDE [DR. DHANANJAYA Y. CHANDRACHUD, J.]
1MPSC
2DDTP
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6. In the promotional cadre of Joint Director of Town Planning3,
there were two posts, one for open category candidates and the second
for reservation on roster points. On 7 January 2011, the post of JDTP
was vacant for a Scheduled Tribe candidate under the roster. However,
relying upon a circular dated 27 October 2008 of the General
Administration Department4, the name of the first respondent was
recommended on 7 January 2011. Though the first respondent belongs
to a Scheduled Caste, he was promoted on an ad-hoc basis to the post of
JDTP on 11 August 2011. On 2 July 2013, by virtue of a Government
Resolution5 dated 29 December 2012, the cadre strength of JDTP was
enhanced to eight posts, of which five posts were meant for the open
category while three posts were reserved. On 2 July 2013, the appellant
was promoted to the post of JDTP.
7. Essentially, the case of the appellant is that in the seniority list
of DDTPs, he ranked senior to the first respondent. The first respondent
was promoted as JDTP on 11 August 2011 while the appellant was
promoted later on 2 July 2013. The appellant claims that once he was
promoted as JDTP, the 'catch-up' rule must govern and in consequence,
he must gain seniority over the first respondent. In order to appreciate
this aspect of the appellant's grievance, material facts pertaining to the
seniority list are provided thus:
 SENIORITY LIST
(i) 14 February 2011
A circular for seniority list of DDTPs as on 1 January 2009 was
issued. The appellant stood at serial no 3 and the first respondent
stood at serial no 9;
(ii) 1 June 2014
A letter was issued for the provisional seniority list of JDTPs as
on 1 January 2014 on the basis of "date of appointment on present
post";
(iii) 28 August 2014
A circular was issued for the final seniority list of JDTPs as on
1 January 2014 on the basis of "date of appointment on present
post";
3JDTP
4GAD
5GR
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(iv) 15 January 2016
A circular was issued for final seniority list of JDTPs as on
1 January 2015 on the basis of "date of regular appointment/
regularized date of promotion";
(v) 8 March 2016
In response to a query under the Right to Information Act 2005,
the appellant was informed that the promotion of the first
respondent would be regularized with the concurrence of GAD
and with the approval of the MPSC in future; and
(vi) 30 April 2016
The incumbent in the post of Director of Town Planning6 was due
to retire upon which the post would fall vacant.
8. After lodging an objection to the seniority list dated 15 January
2016, the appellant filed an Original Application7 before the Maharashtra
Administrative Tribunal8. Simply put, the case of the appellant before
the Tribunal was that even assuming that the promotion of the first
respondent as JDTP on 11 August 2011 (prior to the promotion of the
appellant) against a reserved vacancy was regular in nature, he was not
entitled to claim consequential seniority on the basis of his earlier
promotion in the cadre of JDTP as against the appellant (a candidate
from the general category) who was senior to him in the feeder cadre of
DDTP.
9. In the submission of the appellant, the grant of consequential
seniority to persons belonging to the reserved categories promoted earlier
than their seniors in the feeder cadre had not been expressly provided
for by the State government in the Maharashtra Civil Services Seniority
Rules or elsewhere. The appellant also submitted that the State of
Maharashtra had not undertaken any exercise to quantify and demonstrate
the inadequacy of representation to the Scheduled Castes in the matter
of promotion to the senior cadre in the Town Planning and Valuation
Department (Recruitment) Rules 1984. Absent such an exercise, it was
urged that the mandate of a Constitution Bench decision of this Court in
SUDHAKAR BABURAO NANGNURE v. NORESHWAR
RAGHUNATHRAO SHENDE [DR. DHANANJAYA Y. CHANDRACHUD, J.]
6 DTP
7 O.A. 269 of 2016
8 The Tribunal
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M Nagaraj v Union of India9("Nagaraj")had not been fulfilled. With
this grievance, the appellant asserted that:
(i) As regards his promotion on 11 August 2011 as JDTP from the
cadre of DDTP, the first respondent as a Scheduled Caste
candidate was not entitled to a vacancy which was reserved
for a Scheduled Tribe candidate. However, he was promoted
as JDTP on the basis of a GAD circular dated 27 October
2008. This circular was held to be ultra vires by a judgment of
a Division Bench of the Bombay High Court in Magas Varga
Karmachari-Adhikari Suraksha Mahasangh v State of
Maharashtra ("Mahasangh") rendered on 9 May 2013 at its
Aurangabad Bench10. According to the decision, the circular
was contrary to the provisions of the Maharashtra State Public
Services Reservation for Scheduled Castes, Schedules Tribes,
Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special
Backward Category and Other Backward Classes Act 200111;
(ii) The promotion of the first respondent as JDTP on 11 August
2011 was fortuitous and not a regular appointment. Hence, he
is not entitled to claim the benefits of his promotion as JDTP
and has been wrongly shown as senior to the appellant in the
final seniority list of the cadre; and
(iii) The final seniority list published by the State on 15 January
2016 is in breach of the settled position of law governing
consequential seniority for reserved category promotees as
settled by the Constitution Bench of this Court in Nagaraj
(supra).
10. Principally, on the above grounds, the appellant sought the
following reliefs before the Tribunal:
(i) Setting aside of the final seniority list as on 1 January 2015,
published by the State on 15 January 2016 for the cadre of
JDTP;
9(2006) 8 SCC 212
10 Writ Petition No. 3077 of 2011
11 Act VIII of 2004. "Reservation Act 2004"
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(ii) A direction to review and revise the seniority list in the cadre of
JDTP as on 1 January 2015, by fixing the seniority of the
appellant above the first respondent in conformity with his
position in seniority in the feeder cadre of DDTP; and
(iii) An order restraining the State from undertaking the exercise of
selection for promotion to the post of DDTP on the basis of the
final seniority list published on 15 January 2016 until it is
reviewed and revised.
11. By an interim order dated 1 April 2016, the Tribunal directed
that the decision of the government would be subject to the outcome of
the OA pending before it. Soon thereafter, on 2 April 2016, the GAD
Establishment Board - I conducted a meeting where the first respondent
was recommended for promotion to the post of DTP. In a writ petition
challenging the interim order of the Tribunal, the High Court directed the
Tribunal to decide the pending OA by 30 April 2016 (the post of DDTP
was due to fall vacant on the retirement of the incumbent on 30 April
2016). On 18 April 2016, the Tribunal concluded the hearing and, while
reserving the judgment, directed the case to be posted for pronouncement
of judgment on 2 May 2016. Shortly before that date, the State
government promoted the first respondent to the post of DTP on 30
April 2016. The Tribunal by its judgment dated 2 May 2016 allowed the
OA. It quashed the seniority list dated 15 January 2016 of JDTPs and
issued directions for the preparation of a fresh seniority list by deciding
the date of regular promotion of the first respondent, whereupon a fresh
promotion order was directed to be issued to the post of DTP.
12. The first respondent instituted proceedings12 under Article 226
of the Constitution before the High Court to challenge the decisions of
the Tribunal. The State government challenged the decision of the
Tribunal13. By its judgment dated 16 November 2017, the High Court
allowed the writ petitions and set aside the decision of the Tribunal. The
appellant moved this Court in proceedings under Article 136 of the
Constitution to assail the decision of the High Court.
SUDHAKAR BABURAO NANGNURE v. NORESHWAR
RAGHUNATHRAO SHENDE [DR. DHANANJAYA Y. CHANDRACHUD, J.]
12 Writ Petition No. 8859 of 2016 was instituted to challenge the order of the Tribunal
condoning delay; Writ Petition No. 8860 of 2016 was instituted against the judgment of
the Tribunal in OA No. 269 of 201.
13 Writ Petition No. 9291 of 2016
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13. On 12 December 2017, when the Special Leave Petition was
heard, this Court passed the following order:
"Mr. Ranjit Kumar, learned senior counsel appearing for the
petitioner, points out that though the issue of catch up was raised
before the High Court, the same has not been considered.
If that be so, it is for the petitioner to pursue his remedies available
to him under law on that issue.
Without prejudice to such liberty, these special leave petitions are
permitted to be withdrawn.
We make it clear that we have not considered the matter on merits.
However, it will be open to the parties on both the sides to take all
available contentions before the High Court on the point of catch
up."
In terms of the liberty granted by this Court, the appellant moved
the High Court in review. The review petitions, as stated earlier, were
dismissed on 21 March 2018. Aggrieved by the judgment of the High
Court in review and the original judgment in the writ petitions, the appellant
moved this Court afresh under Article 136 of the Constitution14.
14. During the pendency of these proceedings, the appellant has
instituted Miscellaneous Applications15 along with an interlocutory
application16. By the Miscellaneous Applications, the appellant has sought
a clarification of the order dated 12 December 2017 so as to seek specific
permission from this Court to move afresh if the review were to fail
before the High Court. On 28 November 2018, notice was issued on the
Miscellaneous Applications.
15. A preliminary objection has been taken to the maintainability
of the Special Leave Petition by Mr R P Bhatt, learned Senior Counsel
appearing on behalf of the first respondent. Mr Bhatt urged that as a
result of the order of this Court dated 12 December 2017, all issues
other than the application of the catch-up rule were given up when liberty
was granted to the appellant to move the High Court by way of review.
Once the review was rejected by the High Court, the following
consequences must according to the submission ensue:
14SLP (C) Nos. 8769-71 of 2018 was filed against the judgment in review; SLP (C) Nos.
14041-43 of 2018 were filed against the judgment in the writ petitions.
15MA Nos. 2983-85 of 2018
16IA No. 167323 of 2018
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(i) A challenge to the original order of the High Court allowing the
writ petitions is barred, in the absence of liberty being granted
to the appellant to move afresh after the review was dismissed
against the original order assailed in the Special Leave Petition;
(ii) A challenge under Article 136 of the Constitution solely against
an order on a review petition is not maintainable.
In support of the submission, certain decisions of this Court have
been relied upon which would be adverted to hereafter.
16. The first task of this Court is to construe the order dated 12
December 2017. As the order indicates, the grievance of the appellant
was that though the issue of the catch-up rule was raised before the
High Court, it had not been considered. A two judge Bench of this Court
consisting of Hon'ble Mr Justice Kurian Joseph and Hon'ble Mr Justice
Amitava Roy, which heard the Special Leave Petitions, observed in
response to the submission that "if that be so, it is for the petitioner to
pursue his remedies available to him under law on that issue". This Court
permitted the Special Leave Petitions to be withdrawn "without prejudice
to such liberty". Leaving it open to the contesting parities to take up all
available contentions before the High Court on the issue of catch-up, the
Bench observed that :
"We make it clear that we have not considered the matter on
merits."
17. What emerges from the order dated 12 December 2017 is
that:
(i) Liberty was granted to the appellant specifically to pursue the
remedies available in law on the grievance that the issue of
catch-up, though raised, had not been considered by the High
Court; and
(ii) This Court had not considered the matter on merits.
The reservation of liberty to the appellant to adopt a suitable remedy
in law, to pursue the grievance that a submission which was urged before
the High Court had not been considered would evidently be a reference
to the remedy by way of a review.
18. It is well settled that if a submission which has been urged
before the High Court has not been noticed or considered, it is to the
SUDHAKAR BABURAO NANGNURE v. NORESHWAR
RAGHUNATHRAO SHENDE [DR. DHANANJAYA Y. CHANDRACHUD, J.]
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High Court that the aggrieved litigant must turn for the rectification of
the record. But, apart from this, the observation in the order dated 12
December 2017 that this Court had not considered the matter on merits
is of crucial significance. The purpose of that clarification was to ensure
that the issues which were raised (in any event with regard to the catchup rule) were entirely open, to be urged before the High Court in the
first instance and thereafter, if the appellant were to be aggrieved, in
further proceedings before this Court. The above observation of this
Court was not merely intended to keep the issue of the non-consideration
of the catch-up rule open to be urged before the High Court. That this
issue was kept open, is evident from the last part of the order dated 12
December 2017 which specifically keeps open the contentions of the
parties to be urged before the High Court. In addition, the order of this
Court carefully enunciates that "we have not considered the matter on
merits".
19. In view of this clear clarification, it is impossible to accept the
preliminary objection that a recourse to this Court is barred after the
High Court decided the review petitions. To take any other view would
effectively deny access to justice to the appellant. Evidently, the grievance
of the appellant was not considered by this Court on merits on 12
December 2017. To adopt a construction which would deprive the
appellant of the remedy of moving this Court after the decision of the
High Court in review would lead to an egregious failure of justice. Such
a construction must be eschewed.
20. We would like to note an important aspect of the matter here
which reflects on the bona fides of the appellant. The appellant moved
a Miscellaneous Application on 22 November 2018 by way of abundant
caution, for seeking a clarification of the order dated 12 December 2017.
The appellant sought a clarification to the effect that upon the disposal
of the review petitions by the High Court, it would be open to challenge
the order in review as well as the original order before this Court.
21. One of the members of the earlier Bench, Hon'ble Mr Justice
Kurian Joseph, was due to demit office on 29 November 2018. The
Miscellaneous Application was instituted on 22 November 2018. On 28
November 2018, a Bench consisting of Hon'ble Mr Justice Kurian Joseph
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and one of us (Hon'ble Mr Justice Hemant Gupta) issued notice on the
Miscellaneous Application.
22. We accordingly clarify the earlier order dated 12 December
2017 by directing that it would be open to the appellant, if aggrieved by
the order that may be passed by the High Court in review to challenge
both the order in review and original orders in the writ petitions. However,
this liberty is confined to the issue of the catch-up rule. In issuing this
clarification, we have also been guided by an earlier precedent of a two
judge Bench of this Court in the Maharashtra Chamber of Housing
Industry v Municipal Corporation of Greater Mumbai17. A Bench
of this Court consisting of Hon'ble Mr Justice S A Bobde and Hon'ble
Mr Justice Ashok Bhushan passed an order on 16 August 201618 in the
following terms:
"In the circumstances, we permit the petitioner to approach the
High Court with a review petition along with appropriate application
for impleadment. The High Court shall decide the issues raised
by the petitioner afresh, as expeditiously as possible."
The Special Leave Petitions were accordingly disposed of.
23. Subsequently, on 5 December 2017, while considering an
application for modification/recall of the earlier order, a two judge Bench
consisting of Hon'ble Mr Justice S A Bobde and Hon'ble Mr Justice L
Nageswara Rao observed thus:
"Having regard to the circumstances of the case and the
importance of the matter which affects the construction activities
in the entire city of Mumbai, we consider it appropriate to modify
our earlier order dated 16.08.2016 passed in SLP(C) Nos.2466024661 of 2016, by expressly granting liberty to the petitioner to
challenge the impugned PIL order as well as the impugned Review
order before this Court.
We order accordingly.
Hence, the aforesaid applications for modification/recall are
disposed of in the above terms."
SUDHAKAR BABURAO NANGNURE v. NORESHWAR
RAGHUNATHRAO SHENDE [DR. DHANANJAYA Y. CHANDRACHUD, J.]
17SLP (C)...2016.CC No.