Writ Petition No. 9163 of 2022 · Bombaybench High Court
Case Details
2024:BHC-AUG:17684-DB *1* WP DC PROMOTIONSIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9163 OF 20221.Smt. Samiksha D/o Ramakant Chandrakar,Age: 51 Yrs., Occ: Service as Deputy Commissioner (EGS), Divisional Commissioner (Revenue)'s office. Aurangabad, R/o Plot No. 363, Sector - E, N-1, CIDCO, Aurangabad 431 003.Mobile No. 9822186477.2.Pandurang Ramrao Kulkarni,Age: 57 Yrs., Occ: Service as Deputy Commissioner (Resettlement), Divisional Commissioner (Revenue)'s office, Aurangabad, R/o Plot No. 20, 'Indradhanu', Opp. Kasliwal Corner, N-2, CIDCO, Aurangabad 431 003. Mobile No. 9422208018....PETITIONERS-VERSUS-1.The State of Maharashtra.Through the Additional Chief Secretary, Revenue & Forest Department, Mantralaya, Mumbai 400 032.2. The Additional Chief Secretary,General Administration Department, Mantralaya, Mumbai 400 032.3.The Additional Chief Secretary,Finance Department, Mantralaya, Mumbai 400 032. *2* WP DC PROMOTIONS4.The Principal Secretary,Law and Judiciary Department, Mantralaya, Mumbai 400 032.5. Shri Vijay s/o Shankarrao Deshmukh,Age: Major, Occ: Service as Additional Collector, Collectorate, Pune.6. Shri Trigun S/o Shamrao Kulkarni,Age: Major, Occ: Service as Deputy Commissioner (Supply), Divisional Commissioner (Revenue)'s Office, Pune Division, Pune.7.Smt. Rupali d/o Vilas Awale,Age: Major, Occ: Service as Additional Collector,Collectorate, Osmanabad.8.Smt. Swati d/o Laxmanrao Deshmukh,Age: Major, Occ: Service as Deputy Commissioner (Supply), Divisional Commissioner (Revenue)'s Office, Nasik Division, Nasik.9. Shri. Arvind s/o Rameshrao Lokhande,Age: Major, Occ: Service as Additional Collector, Collectorate, Latur.10.Shri. Tushar s/o Eknath Thombre,Age: Major, Occ: Service as Additional Collector, Collectorate, Beed....RESPONDENTSWITHWRIT PETITION NO. 9631 OF 2022Shri. Vijaysingh Shankarrao Deshmukh Age: 49 Year Occ: Government Servant Additional Collector Pune, *3* WP DC PROMOTIONSCollector Office at Pune....PETITIONER-Versus-1. The State of MaharashtraThrough the Principal Secretary Department of Revenue and Forest2. The Additional Chief SecretaryGeneral Administration Department M. S. Mantralay, Mumbai-323. The Additional Chief SecretaryFinance Department Mantralay, Mumbai-324. The Principal SecretaryLaw and Judiciary Department, Mantralay, Mumbai5. Smt. Samiksha D/O Ramakant Chandrakar.Age-50 years, Occu.: Service as Deputy Commissioner (EGS) Divisional Commissioner (Revenue)'s office, Aurangabad R/o. Plot No. 363, Sector- E,N-1, CIDCO, Aurangabad 431003.6. Shri. Pandurang Ramrao Kulkarni.Age-55 years, Occu,: Service as Deputy Commissioner (Rehabilitation), Divisional Commissioner (Revenue)'s Office, Aurangabad. R/o Kasliwal Corner, N-2 CIDCO7. Shri. Trigun S/O Shamrao Kulkarni,Age: Major, Occu: Service as Deputy Commissioner (Supply), Divisional Commissioner (Revenue)'s office, Pune Division, Pune.8. Smt. Rupali d/o Vilas Awale, *4* WP DC PROMOTIONSAge: Major. Occu.: Service as Additional Collector, Collectorate, Osmanabad.9. Smt. Swati S/O Laxmanrao Deshmukh,Age- Major, Occ.: Service as Deputy Deputy Commissioner (Supply), Divisional Commissioner (Revenue)'s Office, Nashik Division, Nashik.10. Shri. Tushar Eknath ThombreAge: Adult, Occ: Service as Additional Collector, Collectorate, Beed....RESPONDENTSWITHWRIT PETITION NO. 9632 OF 2022Shri Tushar Eknath Thombre,Age : 45 years, Occ : Government ServantAdditional Collector of Beed,C/o Collector Office, Nagar Road,Beed....PETITIONER-VERSUS-1.The State of Maharashtra Through the Principal Secretary Department of Revenue and Forest.2. The Additional Chief Secretary General Administration Department M. S. Mantralay, Mumbai-323. Shivaji S/o Tukaram Shinde, Age-54 years, Occu. Service, (as Asstt. Commissioner [B.C. Cell] in O/o Div. Commissioner, Aurangabad,R/o H No. 13, Om-Akansha Housing, *5* WP DC PROMOTIONSSociety, Plot No. 36 Parijat Nagar, Cidco, N-4 Aurangabad.4. Sunil Vitthalrao Yadav, Age- 55 years, Occu. -Service, (as Sub-Divisional Office. Latur), R/o-"Sinhgad" Govt. Quarter, Opp. Tahsil Office, Latur.5. Shri. Arvind S/O Rameshrao Lokhande,Addl. Collector, Latur,C/o: Collector office, Latur.6. Shri. Shankar S/O Ramchandra Barge,Addl. Collector, Hingoli,C/O: Collector Office, Hingoli.7. Shri. Pradeep S/O Pradbhakar Kulkarni, Residential Deputy Collector, Nanded, C/o: Collector Office, Nanded.8. Shri. Pratap S/O Sugreev Kale, Deputy Election Officer, C/o: Collector Office, Osmanabad.9. Shri. Pandurang S/O Shankarrao Kamble,Sub Divisional Officer, Kandhar,Tal. Kandhar, Dist. Nanded....RESPONDENTS WITHWRIT PETITION NO. 12675 OF 2022K. Suryakrishnamurty,Aged 53 years, having office address at: Dy. Secretary, State Election Commission, Maharashtra, New Administrative Building, Mumbai-400032. *6* WP DC PROMOTIONS...PETITIONER-VERSUS-1. The State of Maharashtra,Through The Chief Secretary, Mantralaya, Mumbai 4000322. The Additional Chief Secretary(Revenue), Revenue and Forest Department, Mantralaya, Mumbai 4000323. The Additional Chief Secretary (Services), General Administration Department, Mantralaya, Mumbai 4000324. The Additional Chief SecretaryFinance Department, Mantralaya, Mumbai 400032...RESPONDENTS WITHWRIT PETITION NO. 11692 OF 20221. The State of Maharashtra,Through the Additional Chief Secretary,Department of Revenue & Forest DepartmentMantralaya, Mumbai- 400 0322. The Additional Chief SecretaryGeneral Administration DepartmentMantralaya, Mumbai-400032.3. The Additional Chief SecretaryFinance DepartmentMantralaya, Mumbai- 400032.4. The Principal Secretary to Government, *7* WP DC PROMOTIONSLaw and Judiciary Department,Mantralaya Mumbai....PETITIONERS-VERSUS-1.Shivaji S/o Tukaram Shinde,Age- 54 years, Occu. : Service,as Asstt. Commissioner [B.C. Cell]in O/o Div. Commissioner, Aurangabad,R/o. H.No.13, Om Akanksha Housing,Society, Plot No. 36, Pariljat Nagar,Cidco, N-4, Aurangabad.2.Sunil Vitthalrao Yadav,Age:-55 years, Occu. : Service,as Sub-Divisional Officer, Latur,R/o. "Sinhgad", Govt. Quarter,Opp. Tahsil Office, Latur.3.Shri Tushar s/o Eknath Thombre,Addl. Collector, Beed,C/o : Collector Office, Nagar Road,Beed.4.Shri Arvind/o Rameshrao Lokhande,Addl. Collector, Latur,C/o : Collector Office, Latur.5.Shri Shankar s/o Ramchandra Barge,Addl. Collector, Hingoli,C/o: Collector Office, Hingoli.6.Shri Pradeep s/o Prabhakar Kulkarni,Residential Deputy Collector, Nanded,C/o: Collector Office, Nanded.7.Shri Pratap s/o Sugreev Kale,Deputy Election Officer,C/o : Collector Office, Osmanabad. *8* WP DC PROMOTIONS8.Shri Pandurang s/o Shankarrao Kamble,Sub Divisional Officer, Kandhar,Tal. Kandhar, Dist. Nanded....RESPONDENTSWITHWRIT PETITION NO. 12699 OF 2022Nitin Gunaji Mahajan,Age : 52 years, Working as AdditionalCollector, currently working asChief Officer, Konkan Housing andArea Development Board, MHADA,Bandra (East), Mumbai-400051....PETITIONER-VERSUS-1.State of Maharashtra,through Chief Secretary,Mantralaya, Mumbai-400032.2.The Additional Chief Secretary(Revenue), Revenue and Forest Department, Mantralaya, Mumbai-400032.3.The Additional Chief Secretary(Services), General AdministrationDepartment, Mantralaya,Mumbai-400032.4.The Additional Chief Secretary,Finance Department, Mantralaya,Mumbai-400032....RESPONDENTS *9* WP DC PROMOTIONSWITHWRIT PETITION NO. 11762 OF 20221. The State of Maharashtra,Through the Additional Chief Secretary,Department of Revenue & Forest DepartmentMantralaya, Mumbai- 400 0322. The Additional Chief SecretaryGeneral Administration DepartmentMantralaya, Mumbai-400032.3. The Additional Chief SecretaryFinance DepartmentMantralaya, Mumbai- 400032.4. The Principal Secretary to Government,Law and Judiciary Department,Mantralaya Mumbai....PETITIONERS-VERSUS-1.Smt. Samiksha D/o Ramakant ChandrakarAge: 50 Years, Occ: ServiceDeputy Commissioner (Revenue) officeAurangabad, R/at Plot No. 363, Sector-E,N-1 , CIDCO, Aurangabad 431003.2. Shri. Pandurang Ramrao KulkarniAge: 55 Years, Occ: Service asDeputy Commissioner (Rehabilitation)Divisional Commissioner (Revenue) OfficeAurangabad, R/at Plot No.20 IndradhanuOpp. Kasliwal Corner, N-2 CIDCO,Aurangabad. 431003.3.Shri. Vijay Shankarrao Deshmukh,Age: Major, Occupation; Service as Additional Collector, *10* WP DC PROMOTIONSCollectorate,Pune.4. Shri. Trigun Shamrao KulkarniAge : Major, Occupation; Service asDeputy Commissioner (Supply)Divisional Commissioner (Revenue)'s Office,Pune Division, Pune.5. Smt. Rupali d/o Vilas AwaleAge: Major, Occupation; Service as Additional Collector,Collectorate, Osmanabad.6. Smt.Swati Laxmanrao Deshmukh,Age: Major, Occupation Working asDeputy Commissioner (Supply)Divisional Commissioner (Revenue)' s Office,Nashik Division, Nashik.7.Shri. Arvind Rameshrao Lokhande.Age: Major, Occupation : Service as Additional Collector,Collectorate, Latur.8. Shri. Tushar Eknath Thombre.Age: Major, Occupation; Serviceas Additional Collector,Collectorate, Beed....RESPONDENTS…Shri Atul Rajadhyaksha, Senior Advocate a/w Shri AkhileshDubey, Shri Uttam Dubey, Shri Amit Dubey, Shri Krishna P.Rodge, Shri Rajuram Kuleriya i/by Law Counsellors, Advocatefor the Petitioners in Writ Petition No.12699/2022.Shri Akhilesh Dubey, Advocate a/w Shri Jiwan J. Patil, Advocatefor the Petitioners in Writ Petition No.12675/2022.Shri V.D. Sapkal, Senior Advocate a/w Shri Ujwal S. Patil andShri Bhalchandra Shinde, Advocates for the Petitioners in Writ *11* WP DC PROMOTIONSPetition Nos.9632/2022 and 9631/2022.Shri Ajay Deshpande, Shri Swapnil Joshi, Shri SameerKurundkar and Shri Sandip Kulkarni, Advocates for thePetitioners in Writ Petition No.9163/2022.Shri Ram S. Apte, Senior Advocate, Special Counsel a/w ShriS.K. Tambe, AGP, for the Petitioners/ State of Maharashtra inWrit Petition No.11692/2022 and Writ Petition No.11762/2022.Shri P.R. Katneshwarkar, Special Counsel a/w Shri S.K. Tambe,AGP, for the Respondents/ State in Writ Petition Nos.9163/2022,12699/2022, 12675/2022, 9631/2022 and 9632/2022.Shri Ashutosh Kumbhakoni, Senior Advocate a/w Shri P.P. More,Advocate for Respondent Nos.5 and 10 in Writ PetitionNo.9163/2022.Shri Shri Sushant Dixit, Advocate a/w Shri Pandurang Gaikwad,Advocate for Respondent No.6 in Writ Petition No.9163/2022,for Respondent No.8 in Writ Petition No.9632/2022 andRespondent Nos.7 to 9 in Writ Petition No.9631/2022.Shri V.D. Sapkal, Senior Advocate a/w Shri Bhalchandra Shindeand Shri Ujwal S. Patil, Advocates for the Respondent Nos.6 to 9in Writ Petition No.9163/2022, for Respondent Nos.3 to 8 in WritPetition No.11692/2022 and for Respondent No.3 in WritPetition No.11762/2022.Shri Avinash S. Deshmukh a/w Shri S.G. Joshi, Advocates forRespondent Nos.3 and 4 in Writ Petition No.9632/2022 and forRespondent Nos.1 and 2 in Writ Petition No.11692/2022.…(Dates of hearing :- 07.08.2023, 08.08.2023, 09.08.2023,10.08.2023, 18.08.2023, 23.08.2023, 29.08.2023, 12.09.2023,27.09.2023, 12.10.2023, 19.10.2023, 03.11.2023, 30.11.2023,01.12.2023, 06.12.2023, 07.12.2023, 22.12.2023, 16.01.2024,31.01.2024, 08.02.2024, 02.05.2024, 09.05.2024, 28.06.2024,05.07.2024 and 12.07.2024) *12* WP DC PROMOTIONS CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ.Reserved on : 12th July, 2024Pronounced on : 08th August, 2024JUDGMENT ( Per Ravindra V. Ghuge, J. ):- 1.Rule. Rule made returnable forthwith and heardfinally, with the consent of the parties.We are reminded of the words of the Hon’bleSupreme Court in O.P. Singla and another vs. Union of Indiaand others, (1984) 4 SCC 450 :-“Once again, we are back to the irksome question of interse seniority between promotees and direct recruits”.2.In this judgment, for the sake of brevity, the‘Directly Appointed Deputy Collectors’ would be referred to as‘DDC’ and the ‘Promotee Deputy Collectors’ would be referredto as ‘PDC’.3.The two Petitions (Transfer Application Nos.1 and 2 *13* WP DC PROMOTIONSof 2021) were filed by Shivaji Tukaram Shinde with SunilVitthalrao Yadav and Smt. Samiksha Ramakant Chandrakar withPandurang Ramrao Kulkarni. These four Applicants (PDC) hadchallenged the final seniority list of the officers in the cadre ofDeputy Collectors for the period 01.01.1999 to 31.12.2003published by the State vide circular dated 31.12.2020, which wasthe impugned seniority list. The grievance of these Applicantswas that they had been wrongly pushed down from Sr.Nos.411and 413 (provisional seniority list published on 24.09.2009) toSr.Nos.599 and 603, respectively, by the impugned final senioritylist published on 31/12/2020. The other two were pushed downfrom Sr.Nos.323 and 328 to Sr.Nos.500 and 506, respectively.Itwas contended that the State desired to favour the DDC andhence, the seniority of the PDC was wrongly reckoned with fromthe date, other than their date of continuous officiation. For thesake of brevity, the prayers in Transfer Application Nos.1 and 2of 2021, are reproduced hereunder :-“Transfer Application No.1/2021:-A)Rule may kindly be issued.B)Rule may kindly be made absolute by quashing& setting aside the impugned final seniority listof the cadre of Deputy Collectors dated31/12/2020 (Annex. H) prepared & publishedby Resp. No. 1.
Legal Reasoning
*14* WP DC PROMOTIONSC)Rule may kindly be made absolute by furtherdirecting the Resp. No. 1 to prepare & publisha fresh final seniority list of the cadre of DeputyCollectors perfectly in tune with the provisionsof Rules 4, 10, 12, 13 and 14 of the"Maharashtra Deputy Collectors (Recruitment,Fixation of Seniority and Confirmation) Rules,1977 and on the basis of the provisionalseniority list already prepared & published on24/09/2009.D)Pending the admission, hearing and finaldisposal of this Writ Petition the effect,operation and implementation of the impugnedfinal seniority list of the cadre of DeputyCollectors dated 31/12/2020 (Annex. H)prepared & published by Resp. No. 1 maykindly be stayed and the Resp. No. 1 may kindlybe restrained from effecting any promotions onthe basis of the said list.E)The cost of this Writ Petition be awarded to thepetitioner.F)Any other appropriate relief as may be deemedfit by this Hon'ble Court be granted in favour ofthe petitioner. Transfer Application No.2/2021:-A) Writ Petition may kindly be allowed.B) The impugned Final Seniority Lists publishedby R-1 vide Circular dated 31.12.2020 at Exh.'E' may kindly be quashed and set aside, bydirecting to prepare the Seniority Lists strictlyin tune with the provisions of Rule 4 read withRule 13 and Rule 14 of the MaharashtraDeputy Collectors (Recruitment, Fixation ofSeniority & Confirmation) Rules, 1977 at Exh.'B' hereto.C) Pending hearing and final disposal of this WritPetition, execution & implementation of theimpugned Seniority List published by R-1 videCircular dated 31.12.2020 at Exh. 'E' maykindly be stayed by keeping the same in
Legal Reasoning
*15* WP DC PROMOTIONSabeyance.D) Respondent No. 1 may kindly be directed not toeffect further promotions on the basis of theimpugned Seniority Lists published videCircular dated 31.12.2020 at Exh. 'E'.E) Any other suitable and equitable relief, towhich the petitioners are entitled to, and thisHon'ble Court deems fit, may kindly be grantedin their favour.”4.All the Petitioners, including the State ofMaharashtra, expressly canvassed in the open Court that they allare aggrieved by the impugned Judgment and order dated26.08.2022, delivered by the Maharashtra AdministrativeTribunal (hereinafter referred to as the Tribunal). However, eachof the Petitioner desired that the impugned judgment should bepartly set aside to the extent it is adverse to him/ her and theparticular portion which is favourable to each of them, should notbe disturbed. We had granted adjournments to the litigatingparties on at least two occasions, to state whether we shouldremand the matters to the Tribunal, for fresh consideration.However, the original Applicants insisted that these Petitionsshould be considered on their merits. Shri Kumbhakoni, learnedSenior Advocate submitted that the whole judgment be set asideand the matters be remanded to the Tribunal and, since no *16* WP DC PROMOTIONSinterim relief has been granted by this Court, the State bepermitted to proceed with promotions, notwithstanding theremanded cases before the Tribunal5.We have recorded the lengthy submissions of thelearned advocates. We could not conduct hearing in these mattersin between 08.02.2024 to 02.05.2024 as one of us (BrotherJustice Khobragade) was not available due to medical reasons.Lastly, they have addressed us on 05.07.2024 and additionalwritten notes were tendered on 12.07.2024. It would be appositeto summarize their submissions, in this judgment.Submissions of learned Senior Advocate Shri V.D. Sapkal6.Shri V.D. Sapkal, has extensively canvassed onbehalf of Respondent No.10 in Writ Petition No.9163/2022. Thesaid Respondent is the Petitioner in Writ Petition No.9632/2022.According to him, the issue is as regards the dates of seniority forthe purposes of settling the deemed dates of promotion.7.Both the Petitioners, namely, Smt.SamikshaRamakant Chandrakar and Shri Pandurang Ramrao Kulkarni, *17* WP DC PROMOTIONSwere appointed as Tahasildar on 24.02.1994 and 31.05.1994,respectively. Both of them assumed office as Tahasildar on thesame day, 02.03.1994. Consequentially, both of them completedfive years as Tahasildar, on 01.03.1999. Both were appointed asDeputy Collector, on 09.07.1999 and both were then promoted tothe cadre of Additional Collector, from 30.01.2020.8.Shri Sapkal has tendered a compilation ofdocuments on behalf of his client, the Petitioner in Writ PetitionNo.9632/2022. The document at Sr.No.1 is the order passed bythe State Government, on 09.07.1999, for appointing Tahasildarson temporary basis in the cadre of the Deputy Collector. Theorder clearly indicates that such Tahasildars are being grantedtemporary promotion in the cadre of Deputy Collector “NivvalTatpurtya Swaroopat Padonnati”, (purely on temporary basis).Petitioner No.1 Smt.Chandrakar is at Sr.No.76 and PetitionerNo.2 Shri Kulkarni is at Sr.No.81. He then points out theconcluding remarks in the said order, viz. ‘the said temporarypromotion will be subject to the approval of the MaharashtraPublic Service Commission’ (MPSC/Commission). It wasexpressly mentioned that they would not be entitled to any *18* WP DC PROMOTIONSbenefits and the Divisional Commissioners were directed toapprise such Tahasildars that, ‘no requests with regard to suchtemporary promotion and in the nature of any changes that maybe sought in their Departments’, would be entertained by theGovernment. To be more specific, the directions issued arereproduced as under:-" संबंधि(cid:5)तवि(cid:8)भागीयआयुक्तांनावि(cid:8)नंतीकरण्यातयेतेकी, पदोत्रती अधि(cid:5)कान्यांनात्यांच्याविनयुक्तीच्यावि(cid:31)काणीरुजूहोण्यासा(cid:31)ीसध्य काय&भारातूनतात्काळकाय&मुक्तकरा(cid:8)े. संबंधि(cid:5)तअधि(cid:5)कान्यांनाउपजिजल्हाधि(cid:5)कारीपदा(cid:8)रदेण्यातआलेली पदोन्नतीहीपूण&पणेतात्पुरत्यास्(cid:8)रूपाचीअसूनशासन(cid:8)महाराष्ट्रलोकसे(cid:8)ा आयोगाच्याअंधितममान्यतेच्याअ(cid:5)ीनराहूनदेण्यातयेतआहेया पदोन्नतीमुळेत्यांनाउपजिजल्हाधि(cid:5)कारीसं(cid:8)गा&तसे(cid:8)ाजेष्ठता(cid:8)ेतनविनधि5ती, इत्यादीबाबतकोणत्याहीप्रकारचेअधि(cid:5)कारीप्रदानहोणारनाहीत. वि(cid:8)भागीयआयुक्तांनीपदोन्नतअधि(cid:5)कान्यांनाअशीहीजाणी(cid:8)दया(cid:8)ीकी, हीपदोन्नतीतात्पुरतीअसल्याकारणानेवि(cid:8)भागबदलूनदेण्यासंबं(cid:5)ीच्या किंक(cid:8)ात्यांच्याप्रत्यक्षनेमणूकावि(cid:8)भागस्तरा(cid:8)रबदलकरण्यासंबं(cid:5)ीच्या त्यांच्याकोणत्याहीवि(cid:8)नंतीचीशासनाकडूनदखलघेतलीजाणारनाही.”9.Shri Sapkal, therefore, contends that none of theseTahasildars were promoted in consultation of the MPSC and, *19* WP DC PROMOTIONStherefore, their temporary promotion would not accrue any rightfor regularization from the deemed dates of promotions. Thoughthis issue relates back to 1999, their seniority altered by theimpugned final seniority list, cannot be faulted.10. Shri Sapkal then draws our attention to theGovernment Order dated 30.01.2020, which is with regard to yetanother temporary promotion granted to these Petitioners. Thesaid order refers to a decision of the Bombay High Court dated18.12.2019, delivered in Writ Petition No.11368/2019 (AjinkyaNatha Padwal and others vs. State of Maharashtra andothers) and connected petitions wherein, this Court had orderedas under:-“(iii)Needless to mention, it is open for the StateGovernment to take an independent decisionwhether to make promotions on adhoc basispending finalization of seniority list.”11.He then draws our attention to the specific words“Saksham Pradhikarnachya Mannyatene Tadartha PadonnatyaDenyat Yet Aahet”. His client, namely, Shri VijaysinhaShankarrao Deshmukh is at Sr.No.1, since he is a directlyappointed Deputy Collector (DDC). Smt.Chandrakar is at *20* WP DC PROMOTIONSSr.No.33 and Shri Kulkarni is at Sr.No.38. Both are PDC. AtSr.No.43, is Shri Tushar Eknath Thombre, who is a directlyappointed Deputy Collector from the 2001 batch and who is thePetitioner in Writ Petition No.9632/2022.12.He then draws our attention to clause 4 in the saidGovernment order dated 30.01.2020, which is reproduced asunder:-"4. उपजिजल्हाधि(cid:5)कारी(विन(cid:8)डश्रेणी) (गट-अ) यासं(cid:8)गा&तीलउक्त अधि(cid:5)कान्यांनाअपरजिजल्हाधि(cid:5)कारी(गट-अ) यासं(cid:8)गा&तखालीलअटी/ शत?च्याअ(cid:5)ीनराहूनतदर्थ&पदोन्नत्यादेण्यातयेतआहेत. :-(i) पदोन्नतीसा(cid:31)ीपात्र(cid:31)रलेल्याउपरोक्तअधि(cid:5)काऱ्यांनादेण्यात येणाऱ्याअपरजिजल्हाधि(cid:5)कारीसं(cid:8)गा&तीलह्यातदर्थ&स्(cid:8)रुपाच्याआहेत.(ii) संदभ&क्र. २येर्थीलनमूदसामान्यप्रशासनवि(cid:8)भागाच्या पत्रान्(cid:8)येप्राप्तअपरजिजल्हाधि(cid:5)कारीपदा(cid:8)रीलपदोन्नतीचीविन(cid:8)डसूचीहीउप जिजल्हाधि(cid:5)कारीसं(cid:8)गा&चीविद.०३.०३. २०१८चीतात्पुरतीज्येष्ठतासूची वि(cid:8)चारातघेऊनतयारकरण्यातआलीअसल्यानेसदरपदोन्नत्यातदर्थ& स्(cid:8)रुपाच्याराहतील(cid:8)उपजिजल्हाधि(cid:5)कारीयाविनम्नसं(cid:8)गा&चीज्येष्ठतासूची अंधितमझाल्यानंतरहोणाऱ्यातद्वदनुषंविगकसे(cid:8)ाजेष्ठतेच्याअधि(cid:5)नराहूनसदर अधि(cid:5)काऱ्यांच्यापदोन्नत्याविनयविमतकरण्यासंदभा&तआदेशविनग&विमतकरण्यातयेतील. *21* WP DC PROMOTIONS(iii) सदरविन(cid:8)डसूची(cid:8)तदर्थ&पदोन्नतीयासमहाराष्ट्रलोकसे(cid:8)ा आयोगाचीमान्यताप्राप्तझाल्यानंतरचपदोन्नतीच्यापदा(cid:8)रसे(cid:8)ाज्येष्ठता(cid:8) अन्यसे(cid:8)ावि(cid:8)षयकलाभविमळण्यासपदोन्नतअधि(cid:5)कारीपात्रराहतील. (iv) सदरस(cid:8)&तदर्थ&पदोन्नत्यायाअपरजिजल्हाधि(cid:5)कारीसं(cid:8)गा&च्या वि(cid:8)त्तवि(cid:8)भागाच्यामान्यतेनेमंजूरहोणाऱ्यासु(cid:5)ारिरतआकृतीबं(cid:5)विनधि5तीच्या अधि(cid:5)नराहतील.(v) प्रधितविनयुक्ती(cid:8)रकाय&रतअसलेलेज्येष्ठअधि(cid:5)कारीयांचे प्रत्या(cid:8)त&नझाल्यानंतरत्यांच्यासा(cid:31)ीअपरजिजल्हाधि(cid:5)कारीयासं(cid:8)गा&तपद रिरक्तनसल्यासयाआदेशातीलकविनष्ठतमअधि(cid:5)कान्यांनापदा(cid:8)नत करण्याच्याअ(cid:5)ीनराहूनसदरतदर्थ&पदोन्नतीदेण्यातयेतआहे. (vi) मा. स(cid:8)Sच्चन्यायालयातप्रलंविबतअसलेल्यावि(cid:8)शेषअनुमतीयाधिचकाक्र.२८३०६/ २०१७मध्येहोणाऱ्याअंधितमविनण&याच्याअधि(cid:5)नराहून, मा. उच्चन्यायालय, मुंबईयांनीरिरटयाधिचकाक्र. ११३६८/ २०१९(cid:8)इतर याधिचकांमध्येविद. १८धिडसेंबर, २०१९रोजीविदलेल्याविनण&यानुसारतसेच सामान्यप्रशासनवि(cid:8)भागानेविद. २९धिडसेंबर२०१७च्यापत्रान्(cid:8)येविदलेल्या माग&दश&नपरसूचनांनुसारसदरहूतदर्थ&पदोन्नत्यादेण्यातयेतआहेत.”He, therefore, submits that unless the State ofMaharashtra acquires the approval of the Commission, therecannot be confirmation of an employee on the said promotionalpost. *22* WP DC PROMOTIONS13.He, then draws our attention to the Governmentcircular, dated 03.03.2018 by which a provisional seniority listwas declared by the State Government. This was challengedbefore the Principal Seat in Writ Petition No.11368/2019(Ajinkya Natha Padwal and others vs. State of Maharashtraand others) and connected matters. The Division Bench of thisCourt delivered a Judgment on 18.12.2019, more specifically,paragraph Nos.11 to 18, as under:-“11. During the pendency of the O.A. No.916 of2016, pursuant to the order dated 25.07.2017in Miscellaneous Application No.292 of 2017filed by the State Government, the Tribunalallowed the State Government to effectpromotions in the cadre of Additional Collector(Selection Grade) subject to the outcome of theO.A. based on provisional seniority list then inexistence. The Tribunal passed the orderdirecting the State Government that the finalproclamation of the seniority list should not bemade without express leave of the Tribunal. 12. On 03.10.2017 the State Government effectedpromotions to the posts of Deputy Collector(Selection Grade) and Additional Collector onthe basis of the draft final seniority list. Till03.10.2017 all promotions were made on thebasis of earlier provisional seniority list. 13. The State Government thereafter published afresh provisional seniority list of DeputyCollectors on 03.03.2018 for the period01.01.1999 to 31.12.2000 and 01.01.2001 to31.12.2003. It is the contention of the *23* WP DC PROMOTIONSpromotees that this provisional seniority list of3.3.2018 had the effect of pushing down thepromotee Deputy Collectors below the DirectRecruits in the order of seniority. It iscontended by promotees that by publishing thesaid list the benefit of seniority to thepromotees from the dates of their actualpromotions is denied and the quota rule infavour of direct recruits was wrongly applied. 14. The provisional seniority list of 03.03.2018 waschallenged by one promotee-Deputy Collectorby fling O.A. No.308 of 2018. However, O.A.No.308 of 2018 was disposed of by the Tribunalon 03.09.2018 as challenge to the provisionalseniority list was premature.15. On 07.09.2018 one of the promotee (AjinkyaNatha Padwal – the petitioner No.1 in WritPetition No.11368 of 2019) filed M.A. No.468of 2018 in O.A. No.916 of 2016 seeking interimorder of stay on promotions on the basis ofprovisional seniority list dated 03.03.2018. On14.09.2018 the Tribunal by its order in M.A.No.468 of 2018 directed the State Governmentnot to issue any order of ad-hoc promotionsunless the seniority list is finalised withoutexpress leave of the Tribunal.16. Thereafter, the State Government filed M.A.No.429 of 2019 seeking leave of the Tribunal toeffect promotions from the cadre of DeputyCollector to the grade of Deputy Collector(Selection Grade) purely by way of temporaryarrangement, subject to further orders and onthe terms and conditions that may be imposedby the Tribunal. By order dated 13.08.2019 theTribunal permitted the State Government toissue ad-hoc promotions to the post of DeputyCollector (Selection Grade) “for the purposestated in the M.A.”. Though it is recorded in theorder that the promotees consented to suchorder being passed, according to thepromotees, said concession was erroneously *24* WP DC PROMOTIONSrecorded. It is the contention of the promoteesthat the application was made for speaking tothe minutes but the same has not been disposedof . 17. Thereafter, on 14.08.2019 the StateGovernment issued promotion orders.According to the promotees the dates ofpromotion of 48 promotee Deputy Collectors inthe Selection Grade were illegally altered. Bysecond order dated 14.08.2019, 40 DirectRecruits are granted ad-hoc promotions asDeputy Collectors (Selection Grade)retrospectively from various dates beginningfrom 31.05.2011.18. Sometime after 14/8/2019 the Direct Recruitsapplied to the Tribunal for withdrawal of O.A.No.916 of 2016. While allowing the applicationfor withdrawal by impugned order dated29/8/2019 the Tribunal recorded that the StateGovernment had already promoted 48 Officersfrom the provisional seniority list published on03.03.2018 of Deputy Collector (SelectionGrade) by an order dated 14.08.2019. TheTribunal further permitted the StateGovernment to promote 57 Officers who areeligible, suitable and in the zone ofconsideration.”14.He submits that after considering the submissions onbehalf of the promotees, which are reproduced in paragraph 20,the submissions on behalf of the direct recruits (DDC) and thesubmissions on behalf of the State Government, were recorded inparagraph 21 and 22. The conclusions of the Court are found inparagraphs 23 to 29 and the operative part, which read thus:- *25* WP DC PROMOTIONS“23. This is an inter se seniority dispute betweenDirect Recruit Deputy Collectors and promoteeDeputy Collectors. The provisional senioritylist was published in 2009 and thereafter in2014. Ad-hoc promotions were made on thebasis of these provisional seniority lists. Theprovisional seniority lists of 2009 and 2014 areprepared by granting seniority to the promoteesfrom the date of promotion by taking intoconsideration the length of continuous servicein the cadre. Ad-hoc promotions in the grade ofDeputy Collectors and the post of AdditionalCollectors also came to be made on the basis ofprovisional seniority lists of 2009 and 2014. Itis the grievance of the Direct Recruits that theprovisional seniority lists are not prepared inaccordance with the Rules of 1977. Accordingto the Direct Recruits, Rules of 1977 providesfor 35% quota for Direct Recruits which is notadhered to. The promotees were promoted asagainst the quota meant for Direct Recruits.The Direct Recruits contend that the promoteeshave misconstrued the decision of the Tribunalin O.A. No. 526 of 2004 as the Tribunalnowhere indicates that quota meant for DirectRecruits should not be followed whilepublishing the combined seniority list.24. The Direct Recruits approached the Tribunal byfling O.A. No.916 of 2016 for direction that theseniority list of Deputy Collectors should befinalised. It is their contention that since 2009the State Government is only publishing theprovisional seniority list and effectingpromotions on ad-hoc basis. Even during thependency of the O.A., the Tribunal grantedleave to the State Government to effectpromotions and/or the State Governmenteffected promotions on ad-hoc basis as per theprovisional seniority list of 2014.25. It is when the State Government published theprovisional seniority list on 03.03.2018 that the *26* WP DC PROMOTIONSpromotees were pushed down in the provisionalseniority list. When the question of furtherpromotions arose, the Direct Recruits who nowwere placed higher in the seniority list of3/3/2018 are considered by the StateGovernment for promotion on ad-hoc basis.Accordingly, 48 Officers were promoted fromthe provisional seniority list of 03.03.2018 asDeputy Collector (Selection Grade) by an orderissued on 14.08.2019. The State Governmentalso wanted to promote 57 officers from the listof Deputy Collector (Selection Grade) asAdditional Collector in view of theadministrative exigency purely on temporarybasis. The State Government sought leave ofthe Tribunal to issue orders promoting them.Pending this application of the StateGovernment, the Direct Recruits made anapplication for withdrawing the O.A. In ouropinion, the Tribunal should have simplypermitted the Direct Recruits to withdraw theO.A. In the O.A. filed by the Direct Recruitsclaiming the relief directing the StateGovernment to prepare the final seniority list,the Tribunal has committed an error inpermitting the State Government to promote 57officers as Additional Collectors. Theapplication made by the State Governmentseeking leave to promote 57 officers would notsurvive for consideration upon withdrawal ofthe O.A. filed by direct recruits.26. There is no serious challenge by any of theparties to the direction issued by the Tribunalto finalise the seniority list. In any case,learned Senior Counsel Shri Apte has made astatement that the State Government wouldfinalise the seniority list by end of January,2020 after taking into considering therepresentations and objections of allconcerned. Learned Senior Counsel Shri Aptehas further clearly indicated that the *27* WP DC PROMOTIONSpromotions which have been made duringpendency of O.A.916 of 2016 are purely on ad-hoc basis and the same are subject to finalseniority list. In view of this submission, theapprehension of the promotees, that DirectRecruits who are promoted on ad-hoc basis interms of the provisional seniority list of 3 rdMarch, 2018 would claim equities and asserttheir rights on the basis of such ad-hocpromotions is misplaced and unfounded.27. It is further submission of learned SeniorCounsel Shri Apte that even if the order of theTribunal is sustained, no prejudice will becaused to any one, as most of the promoteesincluding the direct recruits who are parties tothese Petitions are likely to get promotions onadhoc basis. These promotions will obviouslybe subject to final seniority list. According tolearned Senior Counsel Shri Apte only some ofthe petitioners who are represented by learnedSenior Counsel Shri Setalwad are likely to bedeprived of the benefit of ad-hoc promotion asthey are not in the zone of consideration forpromotion in terms of the provisional senioritylist of 3rd March, 2018.28. Taking an over all view of the matter, we refrainfrom addressing on the larger issue raised bylearned Senior Counsel for the petitioners thatthe direct recruits should not be allowed tocontinue to take advantage of the interimorders in their favour once they havewithdrawn the O.A.. Suffice it to observe thateven on the previous occasions, the ad-hocpromotions were made on the basis of theprovisional seniority list of 2009 and those of2014 which by and large benefited thepromotees. The provisional seniority list of 3rdMarch, 2018 ensures to the benefit of directrecruits. Even the State Government has takena specific stand that the final seniority listwould be published by the end of January, *28* WP DC PROMOTIONS2020. In this view of the matter, we do not findthis is to be a ft case to interfere with the ad-hoc promotions already made on the basis ofthe provisional seniority list of 3rd March, 2018which even according to Shri Apte are purelyon ad-hoc basis subject to final seniority list. Itis therefore clear that the said promotions arepurely on ad-hoc basis subject to the finalseniority list to be prepared by the StateGovernment by the end of January, 2020.29. We are however of the opinion that Clause (6)of the impugned order of the Tribunal whichpermits the State Government to promote 57officers calls for interference. According to us,on a motion made by the direct recruits forwithdrawal of the O.A., the Tribunal should nothave permitted the State Government topromote 57 direct recruits, more so, when theO.A. was at the instance of the direct recruitsessentially for the relief of finalising theseniority list. On a motion made by the directrecruits for withdrawal of the O.A., thequestion of considering any pendingapplication and that too of the StateGovernment was uncalled for. The other reasonwhy we are inclined to interfere with clause (6)of the impugned order passed by the Tribunal isthat by issuing this direction the promotees aredeprived of an opportunity to test thecorrectness of the ad-hoc promotions if madeby the State Government before the Tribunal.We therefore quash and set aside Clause (6) ofthe impugned order passed by the Tribunal. Wemay however hasten to add that considering theexigency of the administration, it is for theState Government to independently considerthe question of effecting ad-hoc promotionspending finalisation of seniority list which willafford a fair opportunity to the aggrieved to testthe decision before the Tribunal on groundslegally permissible. Hence the following order. *29* WP DC PROMOTIONSORDER (i) Clause (6) of the impugned order dated 29thAugust, 2019 passed by the Tribunal in O.A.No. 916 of 2016 and O.A. No. 1099 of 2016 isquashed and set aside. (ii) The statement made by learned Senior CounselShri Apte on instructions that the State wouldfinalise the seniority list by the end of January,2020 after considering the representations andobjections to the provisional seniority list dated3rd March, 2018, is accepted.(iii) Needless to mention, it is open for the StateGovernment to take an independent decisionwhether to make promotions on ad-hoc basispending finalisation of seniority list.(iv) Writ Petitions are partly allowed.”15.He draws our attention to an Original ApplicationNo.763/2003 (Jotiba Tukaram Patil and others vs. The Stateof Maharashtra and others), preferred by the promotees beforethe Maharashtra Administrative Tribunal (Tribunal) wherein, ajudgment was delivered on 09.01.2004, in which, the Tribunalconcluded as under:-“The respondent No.1 is directed to finalise theseniority list of Deputy Collectors determiningthe inter-se seniority among promotee DeputyCollectors and directly recruited DeputyCollectors on the basis of the relevant rules andthe direction given by High Court in W.P. No.4548 of 1983 and also after deciding theobjections raised by the applicants to theprovisional seniority list within a period of sixmonths from today. The respondent No.1,
Decision
*30* WP DC PROMOTIONShowever, is at liberty to make selection forpromotion on the basis of the provisionalseniority list subject to condition thatpromotions given on the basis of such selectionshall be subject to the inter-se gradation in thefinal seniority list. O.A. is disposed ofaccordingly. No order as to costs.”16.Two Miscellaneous Applications bearing Nos.188and 215 of 2004 (The State of Maharashtra vs. J.T. Patil andothers), were preferred before the Tribunal and the operative partof the earlier order dated 09.01.2004, was modified by arriving atthe following conclusions in paragraphs 8 to 10:-“8)We find that the applicants, in their petition,relied upon the decision in W.P. No. 4548/1983in order to make a point regarding the date ofseniority in respect of direct recruits to becounted from the date of then actual takingover charge. It is true that the judgment passedin the said W.P. contains direction to preparegradation list by determining the seniority ofthe promotee Dy. Collectors with effect from thedate of their continuous officiation and inrespect of direct recruits from the date of thenactual taking over charge. But as pointed outby the learned Chief Presenting Officer the saiddirection is applicable only to the seniority listof the Dy. Collectors recruited against thevacancies during the period 1972-1975 whenthe Maharashtra Dy. Collectors (Recruitment,Fixation of Seniority and Confirmation) Rules1977 were not framed. It is not the case of theoriginal applicants that they were recruitedduring that specific period. Hence the principlelaid down in the judgment passed in the said *31* WP DC PROMOTIONSW.P.No. 4548/83 shall not be applicable tothem. The Maharashtra Dy. Collectors(Recruitment, Fixation of Seniority andConfirmation) Rules 1977 specifically providethe manner in which the inter-se senioritybetween promotee and direct recruit Dy.Collectors to be determined. Hence we find thatthe reference to the judgment passed in W.P.No.4548/83 in the operative part of the orderpassed by this Tribunal in O.A. No. 763 of 2003is not relevant as far as determination ofseniority of the original applicants isconcerned. The order dated 9.1.2004 passed bythis Division Bench of the Tribunal in the saidO.A. therefore needs to be modified.9) By filing M.A.No. 215 of 2004, the applicant(Original respondent State Govt.) has prayedfor grant of additional six months time forfinalizing the seniority list of Dy. Collectors.Considering the facts and circumstances,discussed above in respect of M.A. No. 188 of2004, we of opinion that the request needs to begranted.10) We therefore pass the following order.ORDER1. Both these miscellaneous applications areallowed. 2. The operative part of the order dated 9.1.2004in O.A. No. 763 of 2003 is modified and shallread as follows: "The respondent no. 1 is directed to finalize theseniority list of Dy. Collectors determining theinter-se seniority among promotee Dy.Collectors and direct recruit Dy. Collectors onthe basis of relevant rules and also afterdeciding the objections raised by the applicantsto the provisional seniority list within a periodof six months from today. The respondent no. 1,however is at liberty to make selection forpromotion on the basis of the provisionalseniority list subject to condition that *32* WP DC PROMOTIONSpromotions given on the basis of such selectionshall be subject to the inter-se gradation in thefinal seniority list. O.A. is disposed ofaccordingly. No order as to costs". 3. Additional time of six months is granted to theapplicant from today for implementing theorder dated 9.1.2004, passed in O.A. No. 763 of2003. 4. No order as to costs.”17.The above orders were challenged in Writ PetitionNo.7851/2004 (Jotiba T. Patil and others vs. The State ofMaharashtra and others), (Civil Appellate Jurisdiction,Mumbai) and this Court delivered the judgment on 14.06.2018,wherein, it was concluded in paragraphs 23 to 27 as under:-“23] In fact, it is quite clear that the judgment of thiscourt in Writ Petition No. 4548 of 1983 was inthe context of appointees between 1972 to 1975when there were no statutory rules fordetermination of interse seniority. This court,therefore, applying the principles laid down inS.B. Patwardhan (supra) formulated theprinciples to be applied in the meantime. Afterthe 1983 Rules entered into force therefore,there was no question of once again fallingback upon the principles in Writ Petition No.4548 of 1983. 24] Significantly, it is not even the case of thepetitioners that they are appointees between1972 and 1975 or that 1983 Rules do not applyto the determination of their seniority.Therefore, we see no merit in the attack onorder dated 23.6.2004 based upon therestrictive parameters of review jurisdiction or *33* WP DC PROMOTIONSeven otherwise on merits. 25] As noted earlier, all that the impugnedjudgments and orders had directed was thefinalisation of the provisional seniority list inaccordance with law and after taking intoconsideration the objections of the petitioners.Now that the seniority list has already beenfinalised and such finalised seniority list is notunder challenge, we see no good ground tointerfere with the impugned judgments andorders. 26] Since the finalised seniority list is not underchallenge, we are not in a position to knowwhether such finalised seniority list isconsistent with the rules as well as the law laiddown by the Hon'ble Supreme Court in thedecisions upon which reliance is placed byMr.Rajadhyaksha. Suffice to note that there isno inconsistency between the directions issuedby the MAT in the impugned judgments andorders and the decisions upon which reliance isplaced by Mr. Rajadhyaksha. This is because asnoted repeatedly, the impugned judgments andorders had merely directed the State to finalisethe seniority list in accordance with law andafter taking the petitioners objections. 27] For all the aforesaid reasons, we dismiss thispetition. Rule is discharged. There shall be noorder as to costs.” 18.Shri Sapkal, therefore, contends that the seniority ofthe directly appointed Deputy Collectors (DDC/ directappointees), will be from the dates of their entry in such directappointment. Per contra, for the promotees (PDC), it will be fromthe dates of their regular promotion and not from the dates when *34* WP DC PROMOTIONSthey were granted adhoc promotions, since the MaharashtraDeputy Collector (Recruitment, Fixation of Seniority andConfirmation) Rules, 1977, framed under Article 309 (Rules of1977 or the 1977 Rules), were not adhered to. Their promotionswill relate to their dates of actual entry as Deputy Collectors andnot as adhoc Deputy Collectors.19.In support of this submission, he relies upon ajudgment delivered by the Honourable Supreme Court, on28.09.2021, in Malook Singh and others vs. State of Punjaband others, (three Judges Bench), Civil Appeal Nos.6026-6028/2021, [(2021) 7 SCR 1080 : 2021 SCC Online SC 876].He contends that this judgment crystallizes the law that adhocservice cannot be counted for conferring the benefits of seniorityon such an employee. He specifically draws our attention to theobservation of the Honourable Supreme Court in paragraphNo.20, which reads thus:-“20. The law on the issue of whether the period ofad hoc service can be counted for the purposeof determining seniority has been settled by thisCourt in multiple cases. In Direct Recruits(supra), a Constitution Bench of this Court hasobserved:“13. When the cases were taken up for *35* WP DC PROMOTIONShearing before us, it was faintly suggested thatthe principle laid down in Patwardhan case[(1977) 3 SCC 399: 1977 SCC (L&S) 391:(1977) 3 SCR 775] was unsound and fit to beoverruled, but no attempt was made tosubstantiate the plea. We were taken throughthe judgment by the learned counsel for theparties more than once and we are in completeagreement with the ratio decidendi, that theperiod of continuous officiation by agovernment servant, after his appointment byfollowing the rules applicable for substantiveappointments, has to be taken into account fordetermining his seniority; and seniority cannotbe determined on the sole test of confirmation,for, as was pointed out, confirmation is one ofthe inglorious uncertainties of governmentservice depending neither on efficiency of theincumbent nor on the availability of substantivevacancies. The principle for deciding inter seseniority has to conform to the principles ofequality spelt out by Articles 14 and 16. If anappointment is made by way of stop-gaparrangement, without considering the claims ofall the eligible available persons and withoutfollowing the rules of appointment, theexperience on such appointment cannot beequated with the experience of a regularappointee, because of the qualitative differencein the appointment. To equate the two would beto treat two unequals as equal which wouldviolate the equality clause. But if theappointment is made after considering theclaims of all eligible candidates and theappointee continues in the post uninterruptedlytill the regularization of his service inaccordance with the rules made for regularsubstantive appointments, there is no reason toexclude the officiating service for purpose ofseniority. Same will be the position if the initialappointment itself is made in accordance with *36* WP DC PROMOTIONSthe rules applicable to substantiveappointments as in the present case. To holdotherwise will be discriminatory andarbitrary…..47. To sum up, we hold that (A) Once an incumbent is appointed to a postaccording to a rule, his seniority has to countedfrom the date of appointment and not accordingto date of his confirmation. The corollary to theabove rule is that where the initial appointmentis only ad hoc and not according to rules andmade as a stop-gap arrangement, theofficiation in such post cannot be taken intoaccount considering the seniority.” The decision in Direct Recruits (supra) standsfor the principle that ad hoc service cannot becounted for determining the seniority if theinitial appointment has been made as a stopgap arrangement and not according to rules.The reliance placed by the Single Judge in thejudgement dated 6 December 1991 on DirectRecruits (supra) to hold that the ad hoc serviceshould be counted for conferring the benefit ofseniority in the present case is clearlymisplaced. This principle laid down in DirectRecruits (supra) was subsequently followed bythis Court in Keshav Chandra Joshi v. Union ofIndia. Recently a two judge Bench of this Courtin Rashi Mani Mishra v. State of Uttar Pradesh,of which one of us (Justice DY Chandrachud)was a part, observed that the services renderedby ad hoc employees prior to theirregularization cannot be counted for thepurpose of seniority while interpreting theUttar Pradesh Regularization of Ad HocAppointment Rules. This Court noted thatunder the applicable Rules, “substantiveappointment” does not include ad hocappointment and thus seniority which has to becounted from “substantive appointment” would *37* WP DC PROMOTIONSnot include ad hoc service. This Court alsoclarified that the judgement in Direct Recruits(supra) cannot be relied upon to confer thebenefit of seniority based on ad hoc servicesince it clearly states that ad hoc appointmentsmade as stop gap arrangements do not renderthe ad hoc service eligible for determiningseniority. This Court speaking through JusticeMR Shah made the following observations:“36. The sum and substance of the abovediscussion would be that on a fair reading ofthe 1979 Rules, extended from time to time;initial appointment orders in the year 1985 andthe subsequent order of regularization in theyear 1989 of the ad hoc appointees and on afair reading of the relevant Service Rules,namely Service Rules, 1993 and the SeniorityRules, 1991, our conclusion would be that theservices rendered by the ad hoc appointeesprior to their regularization as per the 1979Rules shall not be counted for the purpose ofseniority, vis-à-vis, the direct recruits who wereappointed prior to 1989 and they are notentitled to seniority from the date of their initialappointment in the year 1985. The resultanteffect would be that the subsequent re-determination of the seniority in the year 2016cannot be sustained which was considering theservices rendered by ad hoc appointees prior to1989, i.e., from the date of their initialappointment in 1985. This cannot be sustainedand the same deserves to be quashed and setaside and the seniority list of 2001 counting theservices rendered by ad hoc appointees fromthe date of their regularization in the year 1989is to be restored.37. Now so far as the reliance placedupon the decision of this Court in the case ofDirect Recruit Class II Engg. Officers' Assn.(supra), relied upon by the learned SeniorAdvocate appearing on behalf of the ad hoc *38* WP DC PROMOTIONSappointees is concerned, it is required to benoted that even in the said decision also, it isobserved and held that where initialappointment was made only ad hoc as a stopgap arrangement and not according to therules, the officiation in such post cannot betaken into account for considering the seniority.In the case before this Court, the appointmentswere made to a post according to rule but as adhoc and subsequently they were confirmed andto that this Court observed and held that whereappointments made in accordance with therules, seniority is to be counted from the date ofsuch appointment and not from the date ofconfirmation. In the present case, it is not thecase of confirmation of the service of ad hocappointees in the year 1989. In the year 1989,their services are regularized after followingdue procedure as required under the 1979Rules and after their names were recommendedby the Selection Committee constituted underthe 1979 Rules. As observed hereinabove, theappointments in the year 1989 after theirnames were recommended by the SelectionCommittee constituted as per the 1979 Rulescan be said to be the “substantiveappointments”. Therefore, even on facts also,the decision in the case of Direct Recruit ClassII Engg. Officers' Assn. (supra) shall not beapplicable to the facts of the case on hand. Atthe cost of repetition, it is observed that thedecision of this Court in the case of DirectRecruit Class II Engg. Officers' Assn. (supra)was considered by this Court in the case ofSantosh Kumar (supra) when this Courtinterpreted the very 1979 Rules.”The notification dated 3 May 1977 stated thatthe ad hoc appointments were made inadministrative interest in anticipation ofregular appointments and on account of delay *39* WP DC PROMOTIONSthat takes place in making regular appointmentthrough the concerned agencies. In this regard,the vacancies were notified to the EmploymentExchange or advertisements were issued, as thecase maybe, by appointing authorities. Theappointments were not made on therecommendation of the Punjab SubordinateService Selection Board. However,subsequently a policy decision was made toregularize the ad hoc appointees since theirouster after a considerable period of servicewould have entailed hardship. Thus, the initialappointment was supposed to be a stop gaparrangement, besides being not in accordancewith the rules, and the ad hoc service cannot becounted for the purpose of seniority.”20. Shri Sapkal has then drawn our attention to Rule2(b), 2(e), 2(i), 2(n), Rule 4, Rule 5, Rules 8 to 10, Rule 12 andRule 13 of the Maharashtra Deputy Collectors (Recruitment,Fixation of Seniority and Confirmation) Rules, 1977, which areas under:-“2. Definitions. In these rules, unless the contextotherwise requires,- “(b) "Commission" means the Maharashtra PublicService Commission;” “(e) "deemed date" has the meaning assigned to itin rules 7 and 13;”“(i) "fortuitous service" means that service which isrendered by a person during the periodcommencing on the date of his actualcontinuous officiation in a cadre and ending onthe deemed date of continuous officiation inthat cadre (such deemed date being later than *40* WP DC PROMOTIONSthe date of the actual continuous officiation ofsuch person in the said cadre);”“(n) "select list" means the initial list of officers whoare fit to be appointed as Tahsildars or, as thecase may be of Tahsildars who are fit to beappointed as Deputy Collectors, in the order ofseniority assigned to them in such respectivelist (each such list being drawn up byGovernment in consultation with theCommission).”“4. Mode of recruitment to post of DeputyCollector.-(1) Appointment to the post of Deputy Collectormay be made either by nomination in themanner provided by rule 5 or by promotion ofTahsildars as provided by rule 10 or by transferon deputation of officers holding the posts ofUnder Secretary to Government:Provided that the appointment by nominationshall be made in such manner as to ensure thatthe total number of directly recruited DeputyCollectors in the cadre of Deputy Collectorsshall not, at any time, be less than 35 per cent,and not more than 50 per cent of the totalnumber of permanent posts in that cadre. (2) For the purpose of complying with the provisoto sub-rule (1) Government shall determine inadvance the number of nominations to be madein each year.”“5.Manner of appointment by nomination.-(1) Appointment by nomination shall be made uponthe result of a competitive examination to beheld by the Commission in accordance with therules made by Government in that behalf. (2) To be eligible for appearing at any suchexamination, a candidate,-(a) shall hold a degree of a statutory Universityor a qualification recognised by Government asequivalent thereto; *41* WP DC PROMOTIONS(b) shall have adequate knowledge of Marathifor the purpose of reading, writing andspeaking fluently, in that language; (c) shall not be less than 19 years and morethan 28 years) of age on 1st day of April of theyear following the year in which the posts areadvertised by the Commission:”“8. Preparation of combined seniority list ofTahsildars:- (1) In each year, in accordance with the seniorityof all the Tahsildars determined under sub-rule(6) of rule 7, a combined provisional senioritylist of Tahsildars serving in all the revenueDivisions in the State (hereinafter referred to as"the provisional seniority list of Tahsildars")who have put in continuous service of five yearsor more, shall be prepared by Government inForm I showing their inter-se seniority as onthe 1st day of April of that year. (2) After the preparation of such seniority listunder sub-rule (1), a copy thereof shall be keptby Government for inspection in the office ofevery Commissioner and of every Collector bythe persons interested therein. Governmentshall also issue a press note announcing thatcopies of the provisional seniority list ofTahsildar have been kept for inspection asaforesaid and calling upon persons concernedto submit to the Commissioner of the Divisionconcerned, any objections or suggestions if any,to such list within a period of sixty days fromthe date of the press note.(3) Every Commissioner shall forward thesuggestions and objections, if any received byhim under sub-rule (2) to Government with hisremarks within fifteen days from the last day ofthe period specified in the press note forsubmission of objections and suggestions.(4) Government shall, after considering thesuggestions and objections and the remarks of *42* WP DC PROMOTIONSall the Commissioners, prepare the finalseniority list of Tahsildars. (5) A copy of such final seniority list of Tahsildarsshall be kept by Government in the office ofevery Commissioner and of every Collector forinformation of the persons interested therein.Government shall also issue a press noteannouncing that copies of the final seniority listof Tahsildars have been kept as aforesaid.”“9.Constitution of Selection Committee andpreparation of select list of Tahsildars:-(1) For the purpose of preparing a select list ofTahsildar, Government shall constitute aSelection Committee consisting of-(1) Secretary, Revenue and ForestsDepartment of Government or where there aretwo or more Secretaries in that Department,one of them nominated by Government. ...Chairman(2) Secretary (Personal) in the GeneralAdministration Department of Government....Member(3) Two Revenue Commissioners nominatedby Government (one of them shall be belongingto Backward Classes, if available). ...Members(4) Deputy Secretary in-charge of the subjectin the Revenue and Forests Department....Member/ Secretary(2) The Committee shall meet in the month ofSeptember or as soon as possible thereafterevery year; and subject to the provisions ofsub-rule (5), prepare a select list as provided inthis rule of Tahsildars fit to be promoted to thecadre of Deputy Collectors.(3) The Committee shall consider the cases of allTahsildars including,-(i) those whose names are already includedin the select list prepared earlier but orders *43* WP DC PROMOTIONSregarding whose promotion to cadre of DeputyCollectors have not been issued till the date ofthe meeting,(ii) those who, after being provisionallypromoted to the cadre of Deputy Collectors,have been reverted as Tahsildars, and (iii) those whose names are included in thefinal seniority list of Tahsildars prepared undersub-rule (4) of rule 8 in the order in which theirnames appear in that list.(4) The number of Tahsildars to be included in theselect list shall be, as nearly as may be, equalto the vacancies in the cadre of DeputyCollectors which are likely to arise during thenext twelve months (i.e. from 1st September to31st August). (5) The Committee shall take into consideration allconfidential reports about the officer in thecadre of Tahsildars and then assess the merit ofthat officer.(6) Those officers who are considered to possessoutstanding merit, exceptional ability orpositive merit and have achieved tangible resultand show promise of being able to dischargeefficiently the duties and responsibilities of aDeputy Collector shall alone be rankedamongst the first 25 per cent of the totalnumber of officers to be included in the selectlist. The officer to be ranked thereafter shall beselected from amongst those who areconsidered fit for the post of a DeputyCollector.(7) The select list drawn up by the Committee shallbe submitted to Government together with allthe relevant material including the confidentialreports about the officers concerned.Government shall, thereafter, in consultationwith the Commission, determine the final selectlist of Tahsildars fit to be promoted as DeputyCollectors.” *44* WP DC PROMOTIONS“10. Provisional promotion to Deputy Collector'scadre:-(1) The Tahsildars whose names are included in thefinal select list determined by Governmentunder sub-rule (7) of rule 9 shall beprovisionally promoted to a post in the cadre ofDeputy Collectors in the order of their rankingin that list as and when vacancies occur in thatcadre: Provided that, where such final select list isexhausted and the exigencies of administrationrequire the vacancies in that cadre to be filledup immediately, Government may, purely as astop gap arrangement, appoint,-(i) where the fresh select list is yet to beprepared, Tahsildars included in the finalseniority list of Tahsildars prepared under rule8 in the order of their seniority in that list andwho are considered fit by it for promotion to thecadre of Deputy Collectors after consideringup-to-date confidential reports about them,(ii) where the Committee has drawn up aselect list but Government has not determinedthe final select list in consultation with theCommission as provided in sub-rule (7) of rule9, the Tahsildars included in the select listdrawn by the Committee in the order of theirranking in that list.(2) The appointment made as a stop-gaparrangement under the proviso to sub-rule (1)shall be deemed to be a regular provisionalappointment under sub-rule (1) when theofficer in question is included in the final selectlist determined by Government under sub-rule(7) of rule 9. Where the officer appointed as astop-gap arrangement under the proviso to sub-rule (1) is not included in such final select list,he shall be reverted immediately after suchfinal select list is determined by Governmentunder sub-rule (7) of rule 9.(3) The promotion under sub-rule (1) or under sub- *45* WP DC PROMOTIONSrule (2) shall continue to be provisional untilthe officer has been considered fit to becontinued in the cadre of Deputy Collectors inthe review made under rule 12: Provided that it shall be competent toGovernment to revert any Deputy Collectoreven before the completion of the review underrule 12 if his work is considered unsatisfactoryor for any other reason considered sufficient byGovernment for such reversion; and in suchcases, the Commission shall be consultedwithin six months of the reversion.”“12. Review of Duty Collectors promotedprovisionally:-(1) Whenever the Selection Committee constitutedunder rule 9 meets as required by sub-rule (2)of that rule, it shall also consider the cases ofthe officers who have been provisionallypromoted as Deputy Collectors under rule 10and have so officiated for a continuous periodof not less than three years for determiningwhether they are fit to be continued in the cadreof Deputy Collectors.(2) The Committed shall, after considering theconfidential reports of the officers for theperiod during which the officers had officiatedin the cadre of Deputy Collectors prepare a listof officers who are fit to be continued in theDeputy Collectors' cadre and also a list ofofficers who are not so fit. (3) The two lists drawn up by the Committee undersub-rule (2) shall be submitted to Governmenttogether with all the relevant materialincluding all the confidential reports about theofficers concerned. Government will, therefore,in consultation with the Commission, finalisethe two lists.(4) The officers who are not found fit forcontinuing in the cadre of Deputy Collectors *46* WP DC PROMOTIONSshall be reverted immediately, and their namesremoved from the select list determined byGovernment under sub-rule (7) of rule 9.”“13. Principles according to which seniority ofDeputy Collectors shall be determined:-(1) The seniority inter-se of the promoted DeputyCollectors shall be in the same order in whichtheir names appear in the final select listdetermined by Government under sub-rule (7)of rule 9:Provided that the seniority of the promotedDeputy Collectors appointed as a stop- gaparrangement under the proviso to sub-rule (1)of rule 10, shall be deemed to be provisional tillhis appointment becomes regular under sub-rule (2) of that rule.(2) Where the dates of continuous service of thepromoted Deputy Collectors in the cadre ofDeputy Collectors are not chronologically inconformity with their inter-se seniority asprovided in sub-rule (1) due to the seniority ofany Deputy Collector being revised subsequentto his promotion as Deputy Collector in orderto remove an injustice done to him in fixing hisseniority in the cadre of Deputy Collectors orTahsildars or, as the case may be, AwalKarkuns. or Naib Tahsildars, or for rectifyingan error made in the fixation of such seniority.the dates of continuous service as DeputyCollectors shall be assigned to the promotedDeputy Collectors in such manner as to bechronologically in conformity with their orderof seniority (that is to say, the senior officer willhave the earlier date of continuous service thanhis junior in the seniority list). The dates soassigned shall be called the deemed dates" ofcontinuous service in the Deputy Collectors'cadre, and shall be taken into consideration forthe purpose of this rule.(3) The inter-se seniority of the directly recruited *47* WP DC PROMOTIONSDeputy Collectors, selected in one batch by theCommission shall be determined in accordancewith the order of preference recommended forthem by the Commission irrespective of thedates of their joining the cadre of DeputyCollectors, subject to the condition that theyjoin the cadre within one month of theirappointment order or, where an extension of theperiod for joining the cadre is sanctioned byGovernment, within such extended period; andif they join such cadre after the expiry of theperiod of one month or as the case may be, ofthe extended period, then such seniority shallbe determined according to the dates of theirjoining the cadre.(4) Where the dates of appointment of directlyrecruited Deputy Collectors are notchronologically in conformity with their inter-se seniority as provided in sub-rule (3), suchdates shall be assigned to them in such manneras to be chronologically in conformity withtheir order of seniority. The dates so assignedshall be called "the deemed dates" ofappointment on probation of the directlyrecruited Deputy Collectors and shall be takeninto consideration for the purposes of this rule.(5) After having determined the seniority ofpromoted Deputy Collectors and directlyrecruited Deputy Collectors in the mannerprovided in sub-rules (2), (3), (4) and (5),Government shall determine the seniority of allthe Deputy Collectors according to the date ofcontinuous service in the cadre cf DeputyCollectors or, as the case may be, according tothe deemed dates assigned to them under sub-rule (2) or sub-rule (4):Provided that,(a) any service rendered in a fortuitousappointment shall be excluded, (b) where the dates of continuous service or,as the case may be, of joining the cadre of *48* WP DC PROMOTIONSDeputy Collectors of any two or more officersare identical, the officer senior in age shall beconsidered as senior for the purpose ofdetermining such seniority.”21.He then contends that, under Rule 8, the 01st day ofApril of a particular year is the cut off date for completion of fiveyears by a Tahasildar. Under Rule 9(1), the selection committeeis to be constituted by the Government. The committee has tomeet in the month of September of each year or as soon aspossible thereafter, thereby mandating the committee to fulfillthis requirement prior to 31st December of each year, consideringthe specific language set out in sub-rule (2). Rule 3 provides forcases of the Tahasildars to be considered in view of sub clauses(i) to (iii). Even those Tahasildars, who were provisionallypromoted to the cadre of the Deputy Collectors and have beenreverted and those whose names are included in the finalseniority list of Tahasildars prepared under Rule 8(4) in the orderin which their names appear in that list, can be considered to befit for promotion.22.He, therefore, contends that the two PetitionersSmt.Chandrakar and Shri Kulkarni, could not have been *49* WP DC PROMOTIONSappointed as Deputy Collectors on 09.07.1999, since theycompleted five years as Tahasildars on 01.03.1999 and thecommittee could not have convened a meeting to consider theircases prior to September of 1999, under Rule 9(2). So also, underRule 9(4), the probable vacancies which are likely to arise duringthe next twelve months i.e. from 1st September of that year to 31stAugust of the next year, are also to be considered. This could nothave been done as in July,1999.23.He, then, submits that Rule 9(7) provides forsubmitting the select list drawn by the committee, to theGovernment along with relevant material. The Government isduty bound by a mandate, in view of the word “shall”, to consultthe Commission and determine the final select list of Tahasildarsfit to be promoted as Deputy Collectors. Under Rule 10(1), theTahasildars whose names are included in the final select listdetermined under Rule 9(7), are to be provisionally promoted toa post in the cadre of Deputy Collector in the order of theirranking in that list, as and when the vacancies occurred.24.He then draws our attention to the proviso below *50* WP DC PROMOTIONSRule 10(1), which permits the Government to appoint the DeputyCollectors purely as a stop-gap arrangement, if the final selectlist is exhausted and the exigencies of administration require thevacancies in that cadre to be filled up immediately. He, therefore,relies specifically on Rule 10(2) and contends that theappointment made as a stop-gap arrangement under the provisoto sub rule (1) of Rule 10, shall be deemed to be a regularprovisional appointment under sub-rule (1), only when theofficer in question is included in the final select list determinedby the Government under Rule 9(7). When the officer appointedas a stop gap arrangement is not included in the final select list,he has to be reverted immediately after such final select list isdetermined by the Government under Rule 9(7). He then drawsour attention to Rule 10(3) by which, the promotion under sub-rule (1) or (2), would continue to be provisional until the officeris considered fit to be continued in the cadre of DeputyCollectors, in the review made under Rule 12.25.He then refers to Rule 12 which pertains to reviewof PDC who are promoted provisionally. Sub rule (1) mandatesthe selection committee to consider cases of officers who have *51* WP DC PROMOTIONSbeen provisionally promoted as Deputy Collectors under Rule 10and have officiated for a continuous period of not less than threeyears for determining whether they are fit to be continued in thecadre of Deputy Collectors. Sub rule (2) mandates theCommittee to prepare one list of officers provisionally appointedas Deputy Collectors, who are fit to be continued in the DeputyCollector’s cadre and also prepare a second list of officers, whoare not so fit. Sub-rule (3) mandates the committee to presenttwo lists to the Government, together with all the relevantmaterial. The Government, thereafter, would consult theCommission and finalize the two lists. Under sub-rule (4),officers who are not found fit for continuing in the cadre ofDeputy Collectors, are to be reverted immediately and theirnames are to be removed from the select list prepared under Rule9(7).26.Rule 13(1) mandates that the seniority inter-se thepromoted Deputy Collectors, shall be in the same order in whichtheir names appear in the final select list determined by theGovernment under Rule 9(7). The proviso below sub-rule (1)indicates that the seniority of the promoted Deputy Collectors, *52* WP DC PROMOTIONSappointed as a stop-gap arrangement under the proviso belowRule 10(1), shall be deemed to be provisional till theappointment becomes regular under Rule 10(2).27.Shri Sapkal specifically submits in relation to thecases in hand, that there was no consultation by the Governmentwith the Commission as mandated under Rule 9(7). Therefore,there is no final select list prepared by the Government. Hepoints out that the Government has admitted this fact before theTribunal and even before this Court.28.The learned Advocate Shri Katneshwarkar,representing the Government, when called upon, submits that theGovernment has admitted this aspect and there was noconsultation by the Government with the Commission underRule 9(7), before finalizing the list. Shri Sapkal, therefore,reiterates that the adhoc appointment of these two PetitionersSmt.Chandrakar and Shri Kulkarni, w.e.f. 09.07.1999, as DeputyCollectors, is not as per the approved list under Rule 9(7) andsuch adhoc promotions are in violation of Rule 9(2) and 9(4). *53* WP DC PROMOTIONS29.Shri Sapkal has referred to the impugned judgmentdelivered by the Tribunal, dated 26.08.2022. Primarily, he hascontended that, both the learned members of the Bench havetaken ‘almost contradictory’ views. Though the learned Member(Administrative) has signed the portion of the judgment (86pages), authored by the learned Member (Judicial), he has addedhis observations, analysis and conclusions (11 pages), which arecontrary to the view taken by the learned Member (Judicial).30.He has referred to the text of the portion authored bythe learned Member (Administrative), which we are referring to,(in brief), as follows:-(a)In paragraph 1, it is noted that all the parties areunited/ in agreement on the aspect of the applicability of the1977 Rules. (b)In paragraph 2, he has referred to the conclusion thatthe Applicants before the Tribunal had entered the cadre ofDeputy Collectors as “promotee Deputy Collectors” (PDC).They have claimed seniority in the cadre of Deputy Collectors asper their dates of appointments. (c)The directly appointed Deputy Collectors (DDC) *54* WP DC PROMOTIONShave contended that the initial appointment of the Applicants hasbeen on adhoc basis and fortuitous in nature and under the 1977Rules in the light of the judgment of the Honourable SupremeCourt, they are fit to be reverted to their parent cadre ofTahasildars.(d)The State Authorities admitted that the initialappointment of the Applicants had not been strictly in accordancewith the 1977 Rules and that a sincere effort was made throughthe process of preparation and publication of the combinedseniority list of officers in the cadre of Deputy Collectors for theperiod 01.01.1999 to 31.12.2003, by assigning the DDC their dueseniority position and at the same time, regularizing the adhocand fortuitous services rendered by the Promotee DeputyCollectors (PDC).(e)The issue of locus-standi of the Applicants has beenraised in explicit terms by the Respondents individuals (not theState Authorities) and it is necessary to examine the said issuebefore going to the merits of the case. (f)Admittedly, the Applicants have not placed onrecord a copy of the “final combined seniority list” for the cadreof Tahasildars, which was prepared and published by the *55* WP DC PROMOTIONSRespondent Authorities as per Rule 8(4) and 8(5) for thepurposes of drawing a select list of Tahasildars for promotion tothe post of Deputy Collectors, by the Selection Committeeconstituted under Rule 9(1). So also, the Applicants have notplaced on record the “final select list” prepared by theGovernment under Rule 9(7), though the Applicants claim thattheir names were included in such a list. The State ofMaharashtra has not taken a clear stand. This last sentence isagainst the record since the State Government has filed anaffidavit before the Tribunal stating therein that such a “finalcombined seniority list” and the “final select list”, was neverprepared by the Government.(g)An inference can be drawn that the names of theApplicants were not eligible for inclusion in the final combinedseniority list prepared under Rule 8(4), for placing the same forconsideration of the selection committee for their promotions tothe cadre of Deputy Collectors. The individual Respondents hadasserted that the Applicants had not completed a minimum offive years of service in the cadre of Tahasildars at the time of thepreparation of the combined seniority list.(h)There is no evidence to show that the names of the *56* WP DC PROMOTIONSApplicants in both the proceedings, were eligible to beincorporated in the said final select list prepared under Rule 9(7).It was contended by the individual Respondents that Rule 9(7)was not complied with by Respondent No.1 and which isadmitted in it’s Written Statement. (i)In the specific view of the learned Member(Administrative), that the seniority inter-se the PDC, could not bean issue which could be raised by the DDC. However, a DDCcannot be excluded from raising objections in respect ofinclusion of the names of the PDC in the final combinedseniority list as per Rule 8(4), on the ground that such a PDC didnot meet the eligibility criteria under Rule 8(1). The names ofonly such Tahasildars could be considered for inclusion in theselect list prepared under Rule 9(7), if they are eligible to beincluded in the final combined seniority list prepared under Rule8(4). (j)The learned Member (Administrative) cast issueNo.1 as “Whether the Applicants in TA-1 and TA-2 were qualifiedto be included in the State level final combined seniority list ofTahasildars as per the provisions of Rule 8(1) of the Rules of1977?” *57* WP DC PROMOTIONSWhile answering the said issue, it was concludedthat the meeting of the Departmental Promotion Committee(DPC) cannot be construed to mean that the Selection Committeeconstituted under Rule 9(1) is deemed to have convened ameeting and the meeting of the Selection Committee has to beheld in the manner prescribed under the 1977 Rules. (k)Issue No.3 (there is no issue No.2 in the order) readsas “Whether the names of the Applicants in TA-1 and TA-2 hadbeen included in the select list of Tahasildars as per provisions ofRule 9 of the Rules of 1977?” This issue was answered by concluding that thenames of these four Applicants had not been included in theselect list of Tahasildars, if any, as per Rule 9(3)(iii), since theirnames did not appear in the final combined seniority list ofTahasildars which has to be prepared under Rule 8(4). Therefore,it was concluded that the four Applicants do not have the locus-standi to contest the Transfer Applications.(l)Issue No.4 reads as “Whether the appointment of theApplicants listed in TA-1 and TA-2 can be classified as a stop-gap arrangement as per provisions of Rule 10(1) of the Rules of1977?” *58* WP DC PROMOTIONSThis was answered by concluding that the provisos(i) and (ii), to Rule 10(1), provide for filling up the vacancies inthe cadre of Deputy Collectors purely as a stop-gap arrangement.However, proviso (i) indicates that only an officer in the cadre ofTahasildar whose name has been included in the combined finalseniority list prepared under Rule 8(4), could be appointed as aDeputy Collector on a stop-gap basis. It was concluded that theApplicants were not eligible for appointment even on stop-gapbasis on the post of Deputy Collector under proviso (i) of Rule10.(m)Issue No.5 reads as “Whether the names ofApplicants included in select list by approval of Government withprior consultation with MPSC as per provisions of Rule 9(7) ofthe Rules of 1977?” It was concluded that no select list was preparedunder Rule 9(7), which mandates consultation with the MPSC.(n)Issue No.6 reads as “Whether review of services ofthe Applicants in TA-1 and TA-2 had been duly carried out as perprovisions of Rule 12 of the Rules of 1977?”It was concluded that there was no review ofservices of the Applicants as was required to be carried out as per *59* WP DC PROMOTIONSRule 12.(o)Issue No.7 reads as “How the seniority of Applicantsin TA-1 and TA-2 is to be determined under provisions of Rule 13of the Rules of 1977?” It was concluded that the impugned seniority listprepared and published by the State, was not in accordance withthe relevant provisions under the 1977 Rules. A combinedseniority list of DDC and PDC cannot be prepared in accordancewith Rule 13, without following the due procedure forregularization of the recruitment of the Applicants and similarlysituated other PDC. In the absence of any provision in this regardin the Rules of 1977, the case law may be referred to whichpermits regularization of recruitment which is irregular ab-initio.(p) Issue No.8 reads as “As the Applicants in TA-1 andTA-2 have continued in cadre of Deputy Collectors forcontinuous period of 20 to 22 years, how does inaction on part ofRespondent No.1 and 2 to take action as per relevant rules underthe Rules of 1977 affect the right of the Applicants to claim andget seniority w.e.f. their respective dates of appointments in thecadre of Deputy Collectors vis-a-vis the seniority of direct recruitDeputy Collectors?” *60* WP DC PROMOTIONSIt was concluded that though the Rules mandate thatthe Applicants need to be reverted back to the cadre ofTahasildar, this may amount to turning the clock backwardswhich may lead to multiple administrative complications. On theother hand, conceding to the demands of the Applicants to grantthem seniority w.e.f. their date of joining the cadre of DeputyCollectors, may amount to injustice to the DDC. Regularizationof the PDC in the combined seniority list seems to be the onlyoption which has been apparently accepted by most of the PDC,except these four Applicants who stand on a weak ground oflocus-standi. (q)Issue No.9 reads as “Whether the exact number ofposts in the cadre of Deputy Collectors is material to decide theclaims of four Applicants?” It was concluded that the four Applicants do nothave the locus standi and, therefore, the total number of posts inthe cadre of Deputy Collectors may not be material for decidingthe Applications filed by the Applicants. However, theRespondents may, in order to be fair to all the officers in the saidcadre, re-confirm the data depicted in the matrix enclosed alongwith the circular issued by the Government, Revenue and Forest *61* WP DC PROMOTIONSDepartment bearing No.SNT-22/97/E-1A-Mantralay dated31.12.2020, with special reference to creation of posts of theDeputy Collectors and it’s total number along with the break-upof temporary and permanent posts. (r)While concluding in a long paragraph, the learnedMember (Administrative) has, finally, held that:- “On one hand, we have recordedunambiguous finding that the method which hasbeen adopted and applied by the respondent no.1while determining the impugned seniority list is,strictly speaking, not in precise conformity withthe provisions under “the Rules of 1977”. On theother hand, we also observe that prima facie, theapplicants do not seem to have locus-standi in thepresent matter. The argument put forth by thelearned Special Counsel for private respondentthat the applicants having been promoted inviolation of rules need to be reverted back to theirparent cadre of Tahasildars, can be said to beadministratively impractical in view of the fact oflong service rendered by the applicants. Thesetwo sides of the matter put up in a dilemma as tohow a legally valid, workable resolution to theproblem can be worked out without letting thematter to stale further. From above analysis, it isalso inferred by me that the issue of seniorityposition of the original applicants cannot bedecided by the provisions of the RecruitmentRules, 1977 and passing an order in the presentmatters requires superior learning and ability toanalyze the judgments delivered by Hon’ble HighCourts and Hon’ble Apex Court touching uponsimilar aspects of service matters. Therefore, afterputting my views on record as above forconsideration, I may prefer to concur with *62* WP DC PROMOTIONSoperative part of the order passed by Hon’bleJustice P.R. Bora, the Vice Chairman.” 31.The learned Senior Advocate Shri Sapkal submitsthat though the learned Member (Judicial) and the learnedMember (Administrative), have concurred as regards the fact thatthe select list was not in accordance with the Rules and there wasno consultation with the Commission, the learned Member(Judicial) has held that the said fact could be termed as anirregularity. Per contra, the learned Member (Administrative) hasconcluded that if there is no final combined seniority list and theselect list, as is required by law, the PDC will have to suffer theconsequences. On the issue of the manner in which the PDCshould now be dealt with, the learned Member (Judicial) hasconcluded that they cannot be made to suffer the consequences.He has directed to delete the remark “fortuitous service”, againstthe PDC who are at Sr.Nos.582 to 700. Per contra, the learnedMember (Administrative) has concluded that these PDC cannotbe in the seniority positions and, therefore, being in a dilemma,he would prefer to concur with the learned Member (Judicial).Shri Sapkal, therefore, submits that though both the Members of *63* WP DC PROMOTIONSthe Bench are unanimous as regards the illegality in the finalseniority list and the select list, both have taken a divergent view.32.In paragraph 23 of his judgment, the learnedMember (Judicial) has held that the DPC was convened on15.04.1999 and the promotion orders are issued in the month ofJuly, 1999. To this extent, there is reason to believe that there issome deviation from the Recruitment Rules. The said minorcontravention has to be treated as an irregularity and it would beunjust and unfair to treat the appointments by way of promotiongranted to the four Applicants as being illegal, after a period of20 years.33.In paragraph 26, it is held that a reasonableinference can be drawn that the inclusion of these Applicants inthe select list in the cadre of Deputy Collectors, cannot be held tobe illegal. Though a review meeting under Rule 12 is not held,the State has taken a conscious decision that the review meetingis deemed to have been convened as these four Applicants werecontinued as PDC, admittedly without a review meeting. *64* WP DC PROMOTIONS34.In paragraph 29, it is held as under:-“29.It is true that sub-rule 9 of Rule 7 provides forconsultation with MPSC while determining theseniority list drawn up by the committee of theTahsildars fit to be promoted as DeputyCollectors. It is also true that there is nothingon record to show that the MPSC was consultedby the State before determining the final selectlist of Tahsildars under sub-rule 7 of Rule 9.However, question arises whether suchobjection assumes any value and significanceafter the period of more than 20 years of thealleged action. According to us, the delaycaused has rendered the objection raised onbehalf of private respondents redundant.Moreover, as has been held by Hon’bleSupreme Court in the case of State of U.P. vs.Manbodhan Lal Shrivastava (cited supra)absence of consultation with MPSC can betreated as irregularity and not illegality. Thesaid irregularity can be cured as held byHon’ble Supreme Court in the case of AjayKumar Singh vs. State of Uttar Pradesh (citedsupra) through prospective consultation. Thepromotions granted in favour of the applicantsand inclusion of their names in the select listdetermined under Rule 9(7), therefore cannotbe negated on the ground of ‘non-consultation’with MPSC.”35.The learned Member (Judicial) has relied upon anearlier view taken by the Tribunal vide judgment dated17.04.2008, in O.A. No.526/2004, from paragraph Nos.31 to 41wherein, the Tribunal concluded in paragraph 41 that “There is *65* WP DC PROMOTIONSno difficulty for us to hold that cadre includes both permanentand temporary posts.”36.In paragraph 49, it is held that “In addition topermanent posts of 514, definitely some temporary posts werethere in existence meaning thereby, that cadre strength at therelevant time was more than 514 and the Applicants in both theseApplications were part of the cadre of Deputy Collectors.” Inparagraph 50, he concludes that “… Though in the said orders, ithas been stated that the promotions so granted are purelytemporary and further that the applicants may not be entitled toclaim any benefit on the basis of the said temporary promotionlike seniority etc., it is nowhere mentioned in the said orderunder which provision of the Recruitment Rules such promotionswere given. It is not mentioned in the said orders that thepromotions granted in favour of the applicants are by way ofstop-gap arrangement or on adhoc basis.”37.In paragraph 52, it is held as under:-“52. We have reproduced the proviso to Sub-rule (1)of Rule 10 hereinbefore. We have also noted inwhat circumstances the promotions can be *66* WP DC PROMOTIONSgranted by the Government under the saidprovision. In the affidavit in reply submitted onbehalf of respondent no. 1 it is not its case thatat the time when the applicants and other 94officers in the cadre of Tahsildars werepromoted to the post of Deputy Collector, therewas any administrative exigency. Respondentno. 1 has also not provided any suchinformation or has raised any such plea that atthe time when the applicants were promoted, thefinal select list prepared under Sub-rule 7 ofRule 9 was already exhausted. It is also notdisclosed by respondent No. 1 whetheradministrative exigency was of the nature thatthe vacancies in the cadre of Deputy Collectorswere to be filled up immediately. RespondentNo. 1 has further not provided any informationwhether names of the applicants for promotingthem to the post of Deputy Collector under thesaid provision were required to be taken fromthe final select list of the Tahsildars preparedunder Rule 8. It is also not stated by respondentNo. 1 whether the names of the applicants wereselected from the select list which was awaitingits determination under Sub-rule 7 of Rule 9 bythe Government. It is undisputed that oncepromoted to the post of Deputy Collector, theapplicants did not suffer reversion to any lowercadre and they have been discharging theirduties uninterruptedly on the promoted post ofDeputy Collector.”38. Shri Sapkal submits that the learned Member(Judicial) has erred in concluding in paragraph 53 that the PDCsare not covered by Rule 10(1), which provides for temporarypromotions as a stop-gap arrangement. He held that Respondent *67* WP DC PROMOTIONSNo.1/State does not take a stand that these PDCs are covered byRule 10(1). According to Shri Sapkal, this view is contrary to theview taken by the Bombay High Court in the case of one of theseApplicants, namely, Smt.Samiksha Ramakant Chandrakar, whohad preferred Writ Petition No.11367/2019. He points out thejudgment dated 18.12.2019, more specifically paragraph Nos.25,26, 27, 28 and 29 (operative part), reproduced above.39.He then submits that the learned Member (Judicial)has given a cursory glance to a directly applicable judgmentdelivered by the Honourable Supreme Court in Malook Singh(supra) and has brushed aside the ratio laid down in the saidjudgment by holding that it would not apply to the facts of thecase. Similarly, three judgments of the Supreme Court, viz. (i)Union of India and another vs. Prof. S.K. Sharma, AIR 1992SC 1188, (ii) Excise Commissioner, Karnataka and anothervs. V. Sreekanta, AIR 1993 SC 1564 and (iii) P.K. Singh vs.Bool Chand Chablani and others, AIR 1999 SC 1478, havebeen brushed aside with a passing remark that “It may not benecessary to elaborately discuss each of the said judgment, forthe reason that in all these judgments the principle laid down is *68* WP DC PROMOTIONSsame that the ‘services rendered on adhoc basis cannot beconsidered for the purpose of reckoning seniority’.” He,therefore, submits that the conclusions drawn in paragraph 58,that it is not established that the initial appointment of the fourApplicants was not in accordance with the Rules of Recruitment,is a perverse finding. After having concluded that Rule 9(7) ofthe Rules has been violated, it cannot be held that there is noillegality in the promotions of the PDC. This is apparently aperverse conclusion.40.Shri Sapkal has expressed astonishment that thoughthe Tribunal has concluded that the four Applicants have no locusstandi to file the Applications and the said Applications need notbe entertained, it has effectively granted relief and directions,without quashing the final seniority list dated 31.12.2020. Oncethe Tribunal concludes that the Applicants had no locus standi toassail the impugned notification, it was not necessary for theTribunal to deal with the merits of the claims of these fourApplicants. *69* WP DC PROMOTIONSSubmissions of the learned Senior Advocate Shri Apte41.Shri Apte, the learned Senior Advocate has appearedas a Special Counsel for the State of Maharashtra. He submitsthat the dispute is regarding the seniority inter-se the DDC andPDC. Rule 4 provides for a quota. The DDC should not be lessthan 35% and more than 50% in the cadre of Deputy Collectors.The PDC, subject to the compliance of the Rules insofar asfinalization of the seniority and the select list, should not exceed65% and should not be less than 50%. The adhoc promotionorders resulted in the PDC exceeding 65%. Such excess in quotais to be termed as “fortuitous” appointment. It is also called as astop-gap appointment.42.Shri Apte has relied upon Keshav Chandra Joshiand others vs. Union of India and others, 1992 Suppl. (1)SCC 272, more particularly paragraph Nos.18 to 28 and 34which read as under:-“18. A close reading of the fasciculus of rules clearlyposits that recruitment as Assistant Conservatorof Forest shall be from two sources, namely, bydirect recruitment and by promotion of permanentForest Rangers of the Subordinate Forest Service.Qualifications have been provided forrecruitment. The direct recruit, on selection by thePublic Service Commission is required to undergotraining for two years in the college as a part of *70* WP DC PROMOTIONSthe selection and on obtaining diploma, theGovernor is to appoint him to the substantive postof Assistant Conservator of Forest on probation.The service of the direct recruits is to be countedfrom the date of discharging the duties of the postand on successful completion of the probationwithin two years or extended period and passingthe tests and on confirmation thereof by theGovernor, he becomes a member of the service insubstantive capacity. Similarly the promoteesshall be recruited in accordance with Rule 5(b)and the procedure prescribed in Appendix 'B'. TheChief Conservator of Forest would draw up thelist of permanent Forest Range Officers eligiblefor promotion strictly on the basis of merit. TheCommittee headed by the member of the PublicService Commission would interview them andprepare the list of the selected candidates on thebasis of merit and ability, which would beforwarded to the government. On receipt thereofthe Governor would appoint the Forest RangeOfficers as Assistant Conservator of Forest onprobation in terms of the ratio prescribed in Rule6. The selection shall be based on merit andability. The seniority of Forest Rangers inter se isto be considered only where the merit and abilityas Forest Rangers are approximately equal. Thuseven the juniormost meritorious Forest RangeOfficer would steal a march over his seniors andwould earn his seniority as Assistant Conservatorof Forest. The promotee shall also be onprobation for a period of two years and shall alsohave to pass the prescribed tests unless exempted.On successful completion and the Governor aftersatisfying himself that the appointee is alsootherwise fit to be confirmed, makes an order.Then only the promotee becomes a regularmember of the service in a substantive capacity.19. The heart of the controversy lies in the question asto when a person is appointed to a post in the *71* WP DC PROMOTIONSservice in a substantive capacity within themeaning of Rule 3(h) read with Rules 5 and 24 ofthe Rules. Under Rule 5 read with Rule 3(h) amember of the service means a person, be it directrecruit under Rule 5(a) or promotee under Rule5(b), appointed in a substantive capacity to theservice as per the provisions of the rules. In orderto become a member of the service he/they mustsatisfy two conditions, namely, the appointmentmust be in substantive capacity and theappointment has to be to the post in the serviceaccording to rules and within the quota to asubstantive vacancy. There exists markeddistinction between appointment in a substantivecapacity and appointment to the substantive post.Therefore, the membership to the service must bepreceded by an order of appointment to the postvalidly made by the Governor. Then only he/theybecome member/members of the service. Anyother construction would be violation of theRules.20. The narrative of facts and attendantcircumstances would indicate that theGovernment at no point of time abandoned directrecruitment under Rule 5(a), nor omitted to fixinter se seniority. No blame in this regard shouldlie at the doors of the government as due torecourse to judicial process this situation creptup. It is not the case of the promotees thatGovernment held out any promise that thepromotees would be regularised from therespective dates of promotion. On the other handthe government's positive act of adjusting thepromotees in excess of the quota under Rule 6 inthe vacancies that arose in the succeeding yearsbelie such a situation.21. From the above background two questions wouldemerge: (i) as to when promotees becomemembers of the cadre of Assistant Conservators in *72* WP DC PROMOTIONSa substantive capacity in accordance with therules, and (ii) whether the entire length of servicefrom the date of initial appointments should becounted towards their seniority. The prerequisiteof the right to inclusion in a common list ofseniority is that all those who claim that rightmust broadly bear the same characteristics.Fortuitous circumstances of their holding thegrade post carrying the same designation or scaleof pay or discharging the same duty would notjustify the conclusion that they belong to the samecadre. Due to exigencies of service temporarypromotions against substantive vacancies weremade. It is undoubted that preceding theirpromotion, an ad hoc committee had consideredthe cases of the promotees. Admittedly senioritysubject to rejection of unfit was the criteria,followed in the selection. The selection was,therefore, in defiance of and de hors Rule 5(b)read with Appendix 'B'.22. In a democracy governed by rule of law, it isnecessary for the appropriate governance of thecountry that the political executive should havethe support of an efficient bureaucracy. OurConstitution enjoins upon the executive andcharges the legislature to lay down the policy ofadministration in the light of the directiveprinciples. The executive should implement themto establish the contemplated egalitarian socialorder envisaged in the preamble of theConstitution.23. It is seen that the appointments of the promoteeswere made in batches yearwise. The rulepostulates that appointment shall be strictly asper merit after interview arranged in order by thePublic Service Commission. In the same yearwhen the appointments are made to thesubstantive vacancies from both the sources, thepromotees shall rank senior to the direct recruits *73* WP DC PROMOTIONSin accordance with the quota prescribed underRule 6. The rules provide the power to appointForest Rangers from Subordinate Service, due toadministrative exigencies to officiate or to acttemporarily as Assistant Conservators of Forest.The rule itself, thus, recognises the distinctionbetween substantive appointment andtemporary/officiating appointment. The procedureto prepare the list to man the officiating ortemporary vacancies is on the basis of senioritysubject to rejection of the unfit. The question ofconsidering relative merit and ability of thepromotees inter se, then would not arise. Thereby,it is clear that the list prepared by the ChiefConservator of Forest for appointment of theForest Rangers to officiate in the posts ofAssistant Conservator of Forest on ad hoc ortemporary basis is only fortuitous due to non-availability of the direct recruits as stop gaparrangement. Employees appointed purely on adhoc or officiating basis due to administrativeexigencies, even though continued for a longspell, do not become the members of the serviceunless the Governor appoints them in accordancewith the rules and so they are not entitled to countthe entire length of their continuous officiating orfortuitous service towards their seniority.24. It is notorious that confirmation of an employee ina substantive post would take place long yearsafter the retirement. An employee is entitled to beconsidered for promotion on regular basis to ahigher post if he/she is an approved probationerin the substantive lower post. An officer appointedby promotion in accordance with Rules and withinquota and on declaration of probation is entitledto reckon his seniority from the date of promotionand the entire length of service, though initiallytemporary, shall be counted for seniority. Ad hocor fortuitous appointments on a temporary or stopgap basis cannot be taken into account for the *74* WP DC PROMOTIONSpurpose of seniority, even if the appointee wassubsequently qualified to hold the post on aregular basis. To give benefit of such servicewould be contrary to equality enshrined in Article14 read with Article 16(1) of the Constitution asunequals would be treated as equals. Whenpromotion is outside the quota, the senioritywould be reckoned from the date of the vacancywithin the quota, rendering the previous servicefortuitous. The previous promotion would beregular only from the date of the vacancy withinthe quota and seniority shall be counted from thatdate and not from the date of his earlierpromotion or subsequent confirmation. In order todo justice to the promotees it would not be properto do injustice to the direct recruits. The rule ofquota being a statutory one it must be strictlyimplemented and it is impermissible for theauthorities concerned to deviate from the rule dueto administrative exigencies or expediency. Theresult of pushing down the promotees appointed inexcess of the quota may work out hardship but itis unavoidable and any construction otherwisewould be illegal, nullifying the force of statutoryrules and would offend Articles 14 and 16(1).Therefore, the rules must be carefully applied insuch a manner as not to violate the rules orequality assured under Article 14 of theConstitution. This Court interpreted that equity isan integral part of Article 14. So every attemptwould be made to minimise, as far as possible,inequity. Disparity is inherent in the system ofworking out integration of the employees drawnfrom different sources, who have legitimateaspiration to reach higher echelons of service. Afeeling of hardship to one, or heart burning toeither would be avoided. At the same time equalityis accorded to all the employees.25. In Direct Recruits case the Constitution Bench ofthis Court in which one of us (K. Ramaswamy, J.) *75* WP DC PROMOTIONSwas a member, in Propositions 'A' and 'B' inparagraph 47 at page 475 stated:"(A) Once an incumbent is appointed to apost according to rule, his seniority has to becounted from the date of his appointment and notaccording to the date of his confirmation. Thecorollary of the above rule is that where the initialappointment is only ad hoc and not according torules and made as stop gap arrangement, theofficiation in such post cannot be taken intoaccount for considering the seniority. (B) If the initial appointment is not made byfollowing the procedure laid down by the rules butthe appointee continues in the postuninterruptedly till the regularisation of hisservice in accordance with the rules, the period ofofficiating service will be counted."Mr Mukhoty and Mr Garg repeatedly asked us toapply the ratio in the cases of Narender Chadha',Baleshwar Dass' and Chauhan contending thatthe promotees were appointed to the same post;are discharging the same duties; drawing thesame salary, therefore, they should be deemed tobe given promotion from their initial dates ofappointment, We express our inability to travelbeyond the ratio in Direct Recruits case. Whilereiterating insistence upon adherence to the rulethat seniority between direct recruits and thepromotees has to be from the respective dates ofappointment, this Court noticed that in certaincases, government by deliberate disregard of therules promotions were made and allowed thepromotees to continue for well over 15 to 20 yearswithout reversion and thereafter seniority issought to be fixed from the date of ad hocappointment. In order to obviate unjust andinequitious results, this Court was constrained toevolve "rule of deemed relaxation of the relevantrules" and directed to regularise the services *76* WP DC PROMOTIONSgiving the entire length of temporary service fromthe date of initial appointment for seniority. To laydown binding precedent the cases were referred toa Constitution Bench. In the Direct Recruits case,this Court has laid down clear propositions ofgeneral application in Items A to K. Therefore, tokeep the law clear and certain and to avoid anyslant, we are of the considered view that it is notexpedient to hark back into the past precedentsand we prefer to adhere to the ratio laid down inthe Direct Recruits case.26. As stated, the counsel for the promotees placedstrong reliance on proposition 'B' while thecounsel for the Direct Recruits relied onproposition 'A'. The controversy is as to which ofthe propositions would apply to the facts of thiscase. The proposition 'A' lays down that once anincumbent is appointed to a post according torules, his seniority has to be counted from the dateof his appointment and not according to the dateof his confirmation. The latter part thereofamplifies that where the initial appointment isonly ad hoc and not according to rules and ismade as a stop gap arrangement, the period ofofficiation in such post cannot be taken intoaccount for reckoning seniority. The quintessenceof the propositions is that the appointment to apost must be according to rules and not by way ofad hoc or stop gap arrangement made due toadministrative exigencies. If the initialappointment thus made was de hors the rules, theentire length of such service cannot be counted forseniority. In other words the appointee wouldbecome a member of the service in the substantivecapacity from the date of his appointment only ifthe appointment was made according to rules andseniority would be counted only from that date.Propositions 'A' and 'B' cover different aspects ofone situation. One must discern the differencecritically. Proposition 'B' must, therefore, be read *77* WP DC PROMOTIONSalong with para 13 of the judgment wherein theratio decidendi of Narender Chadha' was held tohave considerable force. The latter postulated thatif the initial appointment to a substantive post orvacancy was made deliberately, in disregard ofthe rule and allowed the incumbent to continue onthe post for well over 15 to 20 years withoutreversion and till the date of regularisation of theservice in accordance with the rules, the period ofofficiating service has to be counted towardsseniority. This Court in Narender Chadha case?was cognizant of the fact that the rules empowerthe government to relax the rule of appointment.Without reading paragraph 13 and Proposition 'B'and Narender Chadha' ratio together the trueimport of the proposition would not beappreciated. We would deal with the exercise ofpower of relaxing the rule later. After givinganxious consideration, we are of the view that thelatter half of Proposition 'A' would apply to thefacts of the case and the rule laid down in thathalf is to be followed. If the concerned rulesprovide the procedure to fix inter se senioritybetween direct recruits and promotees, theseniority has to be determined in that manner.27. Realising that applicability of Proposition 'B' tothe facts would run into rough weather thecounsel for the promotees attempted to anchor itby reiterating that as on date the Public ServiceCommission found the promotees eligible forconfirmation as per rules, the entire length ofservice would be counted for their seniority. Weexpress our inability to accede to the contention.It is seen that appointment of the promotees asAssistant Conservators of Forest was not inaccordance with Rule 5(b) read with Appendix 'B'of the Rules. Admittedly the promotions were onad hoc basis pending direct recruitment and are inexcess of the quota prescribed under Rule 6. Byno strength of imagination it could be said that *78* WP DC PROMOTIONSthe promotions were made to a substantive post inaccordance with the Rules. Therefore, thepromotees do not hold the post in substantivecapacity.28. Undoubtedly when there was dearth of directrecruits the promotees discharged the dutiesranging between 5 to 12 years prior to filing ofthe writ petitions. The promotees generally mayget one or two chances of promotion to cadreposts in higher echelons of the Indian ForestService. Reckoning continuous officiation of adhoc promotion would enable the less privileged toexcel their latent capabilities in the cadre post.”“34. Accordingly we have no hesitation to hold that the promotees have admittedly been appointed on adhoc basis as a stop gap arrangement, though insubstantive posts, and till the regular recruits areappointed in accordance with the rules. Theirappointments are de hors the rules and until theyare appointed by the Governor according to rules,they do not become the members of the service ina substantive capacity. Continuous length of adhoc service from the date of initial appointmentcannot be counted towards seniority. TheGovernor shall have to make recruitment bypromotion to substantive vacancies in the posts ofAssistant Conservator of Forest, if not alreadymade, in accordance with Rule 5(b) read withAppendix 'B' and Rule 6. Their seniority shall becounted only from the respective dates ofappointment to the substantive posts in theirquota under Rule 6 as per the rules. The directrecruits having been appointed in accordancewith Rule 5(a) read with Appendix 'A', theirseniority shall be counted from the date of theirdis- charging the duties of the post of AssistantConservator of Forest and the seniority of thedirect recruits also shall accordingly be fixed. Theinter se seniority of the direct recruits and *79* WP DC PROMOTIONSpromotees shall be determined in accordance withRules 5, 6 and the Rule 24 in the light of the lawdeclared in the judgment. All the employees areentitled to all consequential benefits. On accountof the pendency of judicial proceedings, if any ofthe employees became barred by age forconsideration for promotion to cadre posts, theappropriate governments would do well tosuitability relax the rules and do justice to theeligible conditions.”(Emphasis supplied)43.He, therefore, submits that the Tribunal hasunanimously concluded that the four Applicants did not have anylocus standi to challenge the impugned final list dated31.12.2020 and the final seniority list dated 03.03.2018. Hefurther submits that these four Applicants were in excess of thequota and, therefore, they would be eligible for regularizationfrom the dates a permanent vacancy arose within their quota.Until then, they would continue to be adhoc appointees and theday they are absorbed on a permanent vacant post in the cadre,that would be the day of their entering the Deputy Collector’squota. In the absence of a vacant post, the Tahasildar could nothave been promoted as a Deputy Collector since two DeputyCollectors cannot occupy one post. *80* WP DC PROMOTIONS44.In the light of the above, Shri Apte submits that ifthe select list is not in tune with the Rules, these DeputyCollectors in the absence of a review under Rule 12 leading tothe ratification of their selection, will have to return back asTahasildars, notwithstanding the long times they have spent asPDC. He relies upon Maharashtra Vikrikar KarmachariSanghatana vs. State of Maharashtra, (2000) 2 SCC 552, insupport of his above contention. Paragraphs 4 and 26 read asfollows:-“4.For the first time, the State Government inexercise of powers conferred by provisions ofArticle 309 of the Constitution of India, framedthe rules called Maharashtra Sales TaxInspectors Recruitment Rules, 1971 (for short'the Rules 1971') which came into force w.e.f.September 6, 1971. Suffice is to refer to Rule 2thereof. It deals with the appointments to theposts of Sales Tax Inspectors from two sources,namely direct recruits and by promotion in theratio of 60:40 as far as practicable. Rule 2reads thus :-“2. Appointment to the posts of SalesTax Inspectors shall be made either :(a) by promotion of suitable clerks inthe Sales Tax Department, who have passed atleast Part I of the Departmental Examinationprescribed for the Sales Tax Inspector or for theHigher Clerical staff in the Sales TaxDepartment or who have been exempted frompassing the Departmental Examinationprescribed for Sales Tax Inspectors or for theHigher Clerical Staff: *81* WP DC PROMOTIONSProvided that the Clerks who havepassed Part I of the Departmental Examinationfor Sales Tax Inspector and who have beenpromoted to the posts of Sales Tax Inspectorsare required to pass Part II of the DepartmentalExamination for Sales Tax Inspector also,according to the rules made in that behalf,failing which they shall be liable to be reverted.The ratio of persons appointed bypromotion as provided above and bynomination as provided below shall, as far aspracticable, be 40:60. The ratio shall not applyto temporary vacancies not exceeding one yearwhich may be filled by promotion. Suchpromotions shall, however, be treated asstopgap promotions and will not entitle thepromotees to seniority by virtue thereof.Note : In the period from the date onwhich these rules come into force to the date onwhich the results of the first DepartmentalExamination of Sales Tax Inspectors under theunified Departmental Examination Rules aredeclared, promotions made to the post of SalesTax Inspector shall be purely provisional andpersons so promoted shall be required to passthe prescribed Departmental Examinationwithin the prescribed period from the date theDepartmental Examination rules come intoforce, failing which they shall be liable to bereverted :OR(b) by nomination, on the result of acompetitive examination held by theMaharashtra Public Service Commission, fromamong candidates who -(i) possess a degree in Arts, Science,Commerce, Law or Agriculture of a recognisedUniversity or any recognised equivalentqualifications;and(ii) have attained the age of 18 years *82* WP DC PROMOTIONSand have not attained the age of 24 years, onthe first day of the month immediately followingthe month in which the posts are advertised bythe Commission;Provided that the upper age limit shall berelaxed upto 30 years in the case of personsserving in the Sales Tax Department.”Thereafter, the State of Maharashtra in exerciseof powers conferred under Article 309 of theConstitution of India framed the Rules forregulating the seniority amongst governmentemployees. The said Rules were calledMaharashtra Civil Services (Regulation ofSeniority) Rules, 1982 (for short 'Rules 1982').These rules came into force w.e.f. June 21,1982, Rule 4 is relevant in the presentcontroversy and it reads thus :"4. General Principles of Seniority :(1) Subject to the other provisions of theserules, the seniority of a Government servant inany post, cadre or service shall ordinarily bedetermined on the length of his continuousservice there:Provided that, for the purpose ofcomputing such service, any period of absencefrom the post, cadre or service due to leave,deputation for training or otherwise or onforeign service or temporary officiation in anyother post shall be taken into account, if thecompetent authority certified that theGovernment servant concerned would havecontinued in the said post cadre or serviceduring such period, had he not proceeded onleave or deputation Or been appointedtemporarily to such other post:Provided further that, the service, if any,rendered by him as a result of a fortuitousappointment shall be excluded in computing thelength of service and for the purposes ofseniority he shall be deemed to have been *83* WP DC PROMOTIONSappointed to the post in the cadre of service onthe date on which his regular appointment ismade in accordance with the provisions of therelevant recruitment rules.(2) Notwithstanding anything contained insub rule (1) :(a) the inter se seniority of directrecruits selected in one batch for appointmentto any post, cadre or service, shall bedetermined according to their ranks in theorder of preference arranged by theCommission, Selection Board or in the case ofrecruitment by nomination directly made by thecompetent authority, the said authority, as thecase may be, if the appointment is taken up bythe person recruited within thirty days from thedate of issue of the order of appointment orwithin such extended period as the competentauthority may in its discretion allow.(b) the inter se seniority ofGovernment servants promoted from a SelectList shall be in the same order in which theirnames appear in such Select List. If the SelectList is prepared in two parts, the first part,containing the names of those selectedunconditionally and the second part containingthe names of those selected provisionally. Allpersons included in the first part shall rankabove those included in all second part:Provided that, if the order in which thenames are arranged in the Select List ischanged following a subsequent review of it,the seniority of the Government servantsinvolved shall be re-arranged and determinedafresh in conformity with their revised ranks.(c) the seniority of a transferredGovernment servant vis-a-vis the Governmentservant in the posts, cadre or service to whichhe is transferred shall be determined by thecompetent authority with due regard to the *84* WP DC PROMOTIONSclass and pay scale of the post, cadre or servicefrom which he is transferred, the length of hisservice therein and the circumstances leadingto his transfer.(3) Where the dates of appointment in posts,cadre or service of any two or more personsdetermined after assigning the deemed dates, ifnecessary, are identical the person senior inage shall be considered as senior for thepurpose of deter-mining the seniority."Rule 3 contains several definitions and we areconcerned with four definitions.“3(d)"Deemed date" means the dateassigned to a Government servant inaccordance with the provisions of Rub 5;3(e) "Direct recruit" means, in relation toany post, cadre or service, a person appointedby nomination thereto;3(f) "fortuitous appointment' means atemporary appointment made pending aregular appointment in accordance with theprovisions of the relevant recruitment rules;3(h) “Promotee" means, In relation toany post, cadre or service, a Governmentservant appointed thereto by promotion from alower post, cadre or service;”“26. Lastly, it was contended on behalf of theappellants that some of :the appellants have putin more than 17 years of service when few ofthe direct recruits were either schooling and/ornot born in the cadre. If the appellants were tobe pushed down, it will cause a great hardshipto them. We are unable to subscribe to thiscontention because if there is patent violationof the quota rule, the result must follow and theappellants who remained in the office for allthese years cannot take the advantage of thissituation. This submission is, therefore, devoid *85* WP DC PROMOTIONSof any substance.”(Emphasis supplied)45.He then relies upon M.S.L. Patil, Asstt.Conservator of Forests, Solapur (Maharashtra) and othersvs. State of Maharashtra and others, (1996) 11 SCC 361, tocontend that even if many years have passed in the PDC cadre, ifthere is no review, the result of returning back as Tahasildar, hasto follow. Paragraphs 2 and 3 read as under:-“2.Mr. M.S.L. Patil, party appearing-in-person hasraised five contentions, namely, that thecombined seniority as per the rules was to bemaintained from the date of the regularappointment or promotion. As per the rules, thepetitioner came to be appointed prior to theappointment of the direct recruits. Therefore,the entire length of service rendered by him asan Assistant Conservator of Forests requires tobe tagged for maintaining his seniority. If soconsidered, he would be senior to the directrecruits. Therefore, they cannot scale marchover the promotees. It is also contended that thedirect recruits unfilled quota cannot be carriedforward. He places reliance on the judgment ofthis court in Indra Sawhney v. Union of India[1992 Supp. (3) 217] known as Mandal's case.They were not recruited according to rules. Healso contended that he was not made a party tothe earlier proceedings which culminated in theaforesaid judgment. Therefore, the decisionpassed by this Court is violative of theprinciples of natural justice. He also contendedthat the third respondent in this case is a directrecruit and has concealed several material *86* WP DC PROMOTIONSfacts which led to the open judgment by thisCourt. Shri Raju Ramachandran, learnedsenior counsel appearing for some of thepromotees, contended that in the earlier case,this Court in paragraph 9 of the judgment hasspecifically stated the premises that specificmaterial has not been placed on record of theappointment of the promotees, viz., whethertheir promotions were fortuitous or not. Thequota rules was broken down between thedirect recruits and the promotees. Even underRules, 1982, the second proviso thereto gives apower to the Government to certify that thedirect recruitment could not be made. In view ofthe stand taken by the Government in thecounter- affidavit filed in the Tribunal that theso-called rule of quota has been broken down,it would amount to certification that it did notmake regular recruitment; as a result,promotees gain seniority which has to becounted from the date of the regular promotion.Thereby, they would be senior to the directrecruits.3.In view of these contentions, the question thatarises is whether the judgment of this Court hasbeen vitiated by any error of law warrantingreconsideration at the behest of some of thepersons who are not parties to the earlierproceedings? It is undoubted that they were notparties to their earlier petition but this Courthas laid down the general principle of law, and,therefore, whether or not they are parties to theearlier proceedings, the general principle oflaw stands applicable to every personirrespective of the fact whether he is party tothe earlier order or not. It is not in dispute thatthere is a ratio prescribed for the direct recruitsand the promotees, namely 1:1. In other words,for every 100 vacancies the promotees areentitled only to 50 vacancies. It is not in dispute *87* WP DC PROMOTIONSthat these promotees have been promoted inexcess of the quota. Under those circumstances,it is settled law that the promotees who areappointed in excess of the quota cannot get thebe fitted into seniority according to the rules.As to what is the date on which the promoteesor the direct recruits came to be appointed intothe respective quota is a matter of record andthe seniority is required to be determinedaccording to the law laid down by this Court.In several judgments of this Court, it is nowfirmly settled that mere by because of the factthat State Government could not make directrecruitment due to its inaction, it cannot be saidthat the rule of quota has been broken down.Therefore, as and when the direct recruitmenthas been made, the direct recruits are entitledto placement of their seniority into thevacancies reserved for them as per the ratioand the seniority determined as per the ruleswithin the respective quota. Similarly, when thepromotees came to be promoted in accordancewith the rules in excess of their quota, thisCourt stated in K.C. Joshi and others v. Unionof India and others, [AIR 1991 SC 284] thougha Bench of three Hon'ble Judges, that thepromotees in excess of the quota cannot begiven seniority from the respective dates oftheir promotions. They have to be consideredonly from the respective dates on which theirrespective quota is available. The samedecision was followed and reiterated in A.N.Sehgal vs. Raje Rama [1992 Supp. (1) SCC304]. Under these circumstances, we do notthink that the judgment of this Court is vitiatedby any error of law for reconsideration. EvenRule 4, second proviso has no application tothe facts in this case. Rule 4 contemplates theseniority and second proviso postulates thatwhen the recruitment could not be made, theyhave to certify the ground on which it could not *88* WP DC PROMOTIONSbe made and thereafter the seniority has to bedetermined. In view of the law now laid down,the certification of the non-making of directrecruitment according to rules, bears norelevance. The question of carry forward in thiscase, as laid down in Mandal's case, has noapplication for the reason that the recruitmentin proportion is one the methods of recruitmentand is required to be made. The balance postsare required to be recruited by subsequentpublication and the promotees have no right toget into the post reserved for the direct recruits.Mandal's case concerns carry forward postsreserved under Article 16(4) for ScheduledCastes, Scheduled Tribes and Other BackwardClasses which has nothing to do in this case.Though some of the grounds will be availableto argue the case on merits, that is no ground toreopen the settled law laid by this Court inearlier decision.”46.He then relies upon a judgment delivered by theTribunal on 17.04.2008 in Original Application No.526/2004(Rajendra Nimbalkar and others vs. The State ofMaharashtra and others), wherein, the Tribunal has upheld therule of quota as set out in Rule 4. He relies upon clauses 2, 3, 5and 5.1 of the impugned list dated 31.12.2020 in support of hisabove contention. To the extent of review under Rule 12, herelies upon clause 5.2. He also relies upon clause 5.3 with regardto fortuitous service. He has further placed reliance upon clauses5.4, 5.5, 6, 6.1 to 6.3, 7, 7.1 to 7.4 and 8. *89* WP DC PROMOTIONS47.Shri Apte has then referred to clause 3 of theoperative order, passed by the learned Member (Judicial) andsubmits that such directions without allowing the O.A. andwithout concluding that the impugned final list is bad in law,would be an unsustainable direction. Clause 3 reads thus:-“3.The seniority list of the Deputy Collectors forthe period 01.01.2004 onwards shall beprepared having regard to the observationsmade in the present order and strictly inobservance of the Recruitment Rules of 1977,within the period of next 6 months from the dateof this order.”48.Shri Apte has then referred to the GovernmentResolution dated 31.12.2020 by which, the cadre strength of theDeputy Collectors was fixed at 514 from 1999 onwards. Thisstrength was maintained upto 2012. The impugned seniority listis upto 2003. He then takes a strong exception to the directionissued by the Tribunal to prepare a fresh seniority list from 2004,which was nobody’s prayer before the Tribunal. When theTribunal has held that the four Applicants did not have the locusstandi to file the petition and had no cause of action due to whichthe Tribunal disposed off the applications, it could not have *90* WP DC PROMOTIONSgranted any relief indirectly to the Applicants which they couldnot get directly. On these premises, he submits that clause 4 ofthe operative part of the Tribunal’s order directing deletion of theword ‘fortuitous’, is unsustainable.Submissions of the Senior Advocate Shri Kumbhakoni49.The learned Senior Advocate representing the DDCin these matters, more specifically Respondent No.5 in WritPetition No.9163/2022 and the Petitioner in Writ PetitionNo.9631/2022, submits that the impugned judgment of theTribunal is a “fractured view”. The Tribunal Members haveconcurred only on two grounds, firstly that the four Applicantsdo not have the locus to file the applications and they do not haveany cause of action. Despite having concluded that the fourApplicants could not have filed the proceedings, the Tribunalproceeded to deal with the merits of the matter. This wasuncalled for and was not expected from the Tribunal.50.On the merits of the claims of these Applicants, theTribunal did not interfere with the impugned final seniority listdated 31.12.2020, which covers the period from 01.01.1999 till *91* WP DC PROMOTIONS31.12.2003. The earlier seniority list dated 31.12.1998 hasbeen finalized and the said issue is concluded. In the lightof these facts, the Tribunal had no reason to go into the merits ofthe claims of the Applicants, inasmuch as, it has further travelledin declining to interfere with the final seniority list and yet, hasissued certain directions to the State, which cannot be sustained.51.On the aspect of whether, the impugned judgmentcould be termed as a “judgment”, Shri Kumbhakoni has reliedupon the view taken by the Honourable Supreme Court inShakuntala Shukla vs. State of U.P. and others, (2021) SCCOnline SC 672, wherein, it has been held that the judgment mustbe pronounced on the statement of material/ relevant facts, legalissues or questions, deliberation to reach at a decision and theratio or conclusive decision. It would be apposite to reproduceparagraph Nos.32 to 37 hereunder:-“32.Having gone through the impugned judgmentand order passed by the High Court releasingthe accused on bail pending appeal, we are atpains to note that the order granting bail to theaccused pending appeal lacks total clarity onwhich part of the judgment and order can besaid to be submissions and which part can besaid to be the findings/reasonings. It does noteven reflect the submissions on behalf of the *92* WP DC PROMOTIONSPublic Prosecutor opposing the bail pendingappeal. A detailed counter affidavit was filedon behalf of the State opposing the bail pendingappeal which has not been even referred to bythe High Court. The manner in which the HighCourt has disposed of the application underSection 389 Cr.P.C. and has disposed of theapplication for bail pending appeal cannot beapproved. It is very unfortunate that by thisjudgment, we are required to observe theimportance of judgment; purpose of judgmentand what should be contained in the judgment. 33.First of all, let us consider what is “judgment”.“Judgment” means a judicial opinion whichtells the story of the case; what the case isabout; how the court is resolving the case andwhy. “Judgment” is defined as any decisiongiven by a court on a question or questions orissue between the parties to a proceedingproperly before court. It is also defined as thedecision or the sentence of a court in a legalproceeding along with the reasoning of a judgewhich leads him to his decision. The term“judgment” is loosely used as judicial opinionor decision. Roslyn Atkinson, J., Supreme Courtof Queensland, in her speech once stated thatthere are four purposes for any judgment that iswritten: i) to spell out judges own thoughts; ii) to explain your decision to the parties;iii) to communicate the reasons for thedecision to the public; and iv) to provide reasons for an appeal court toconsider34.It is not adequate that a decision is accurate, itmust also be reasonable, logical and easilycomprehensible. The judicial opinion is to bewritten in such a way that it elucidates in aconvincing manner and proves the fact that theverdict is righteous and judicious. What the *93* WP DC PROMOTIONScourt says, and how it says it, is equallyimportant as what the court decides.35.Every judgment contains four basic elementsand they are (i) statement of material (relevant)facts, (ii) legal issues or questions, (iii)deliberation to reach at decision and (iv) theratio or conclusive decision. A judgment shouldbe coherent, systematic and logicallyorganised. It should enable the reader to tracethe fact to a logical conclusion on the basis oflegal principles. It is pertinent to examine theimportant elements in a judgment in order tofully understand the art of reading a judgment.In the Path of Law, Holmes J. has stressed theinsentient factors that persuade a judge. Ajudgment has to formulate findings of fact, ithas to decide what the relevant principles oflaw are, and it has to apply those legalprinciples to the facts. The important elementsof a judgment are:i) Captionii) Case number and citation iii) Facts iv) Issues v) Summary of arguments by both the parties vi) Application of law vii) Final conclusive verdict36.The judgment replicates the individuality of thejudge and therefore it is indispensable that itshould be written with care and caution. Thereasoning in the judgment should be intelligibleand logical. Clarity and precision should be thegoal. All conclusions should be supported byreasons duly recorded. The findings anddirections should be precise and specific.Writing judgments is an art, though it involvesskillful application of law and logic. We areconscious of the fact that the judges may beoverburdened with the pending cases and thearrears, but at the same time, quality can never *94* WP DC PROMOTIONSbe sacrificed for quantity. Unless judgment isnot in a precise manner, it would not have asweeping impact. There are some judgmentsthat eventually get overruled because of lack ofclarity. Therefore, whenever a judgment iswritten, it should have clarity on facts; onsubmissions made on behalf of the rivalparties; discussion on law points and thereafterreasoning and thereafter the ultimateconclusion and the findings and thereafter theoperative portion of the order. There must be aclarity on the final relief granted. A party tothe litigation must know what actually he hasgot by way of final relief. The aforesaid aspectsare to be borne in mind while writing thejudgment, which would reduce the burden ofthe appellate court too. We have come acrossmany judgments which lack clarity on facts,reasoning and the findings and many a times itis very difficult to appreciate what the learnedjudge wants to convey through the judgmentand because of that, matters are required to beremanded for fresh consideration. Therefore, itis desirable that the judgment should have aclarity, both on facts and law and onsubmissions, findings, reasonings and theultimate relief granted.37.If we consider the impugned order passed bythe High Court, as observed hereinabove, wefind that there is a total lack of clarity on thesubmissions, which part of the order issubmission, which part of the order is thefinding and/or reasoning. As observedhereinabove, even the submissions on behalf ofthe Public Prosecutor have not been noted andreferred to, though a detailed counter affidavitwas filed by the State opposing the bailapplications. We do not approve the manner inwhich the High Court has disposed of theapplication for bail pending appeal.” *95* WP DC PROMOTIONS52.He, therefore, poses a legal question before us as towhether, this Court should deal with the aspect of the locusstandi and cause of action, alone or go into the merits of thematter as if this Court is exercising appellate jurisdiction.According to him, the impugned judgment is impossible to beconfirmed “as it is”. He, therefore, contends that this Court coulddecide the issues of locus standi and cause of action and not anyother issue, since it is a fractured decision. This Court exercisingWrit jurisdiction, cannot deal with a matter as an AppellateCourt. If there is a direct conflict between the two Members ofthe Tribunal, almost on all points except the two referred above,any indulgence by the High Court in going into the merits of thematter would amount to performing the obligation of a thirdmember, by the High Court.53.He refers to Section 26 of the AdministrativeTribunals Act, 1985, which reads thus:-“26.Decision to be by majority.—If the Members ofa Bench differ in opinion on any point, thepoint shall be decided according to the opinionof the majority, if there is a majority, but if theMembers are equally divided, they shall statethe point or points on which they differ, andmake a reference to the Chairman who shall *96* WP DC PROMOTIONSeither hear the point or points himself or referthe case for hearing on such point or points byone or more of the other Members of theTribunal and such point or points shall bedecided according to the opinion of themajority of the Members of the Tribunal whohave heard the case, including those who firstheard it.”54.He submits that when one member draws a specificconclusion as regards the important aspects in the case and theMember (Administrative) authors a separate portion of thejudgment, his concluding approval paragraph can only be termedas a compulsion and not a conclusion. Even the PDC have raisedgrounds in Writ Petition No.9163/2022, that the reliefs anddirections which were sought, have not been granted by theTribunal and such directions which were never sought, have beengranted. He contends that the learned Judicial Member has takena different, distinct and divergent view, vis-a-vis the view takenby the Member (Administrative).55.He relies upon paragraphs 16 to 19 of the judgmentdelivered by the Honourable Supreme Court in J. Balaji Singhvs. Diwakar Cole and others, (2017) 14 SCC 207, which readas under:- *97* WP DC PROMOTIONS“16.In our considered view, the only error which thefirst Appellate Court committed was that it wenton to record the findings on merits. In our view,it was not necessary to do so while passing theorder of remand. The reason is that once thefirst Appellate Court formed an opinion toremand the case, it was required to givereasons in support of the remand order as towhy the remand is called for in the case.Indeed, the remand was made only to enablethe Trial Court to decide the case on merits.Therefore, there was no need to discuss muchless record findings on several issues on merits.It was totally uncalled for.17.So far as the impugned order is concerned, theHigh Court, in our view, committedjurisdictional error when it also againexamined the case on merits and set aside thejudgment of the first Appellate Court andrestored the judgment of the Trial Court. TheHigh Court, in our opinion, should not havedone this for the simple reason that it was onlyexamining the legality of the remand order inan appeal filed under Order 43 Rule 1(u) of theCode. Indeed, once the High Court came to aconclusion that the remand order was bad inlaw then it could only remand the case to thefirst Appellate Court with a direction to decidethe first appeal on merits.18.The High Court failed to see that when the firstAppellate Court itself did not decide the appealon merits and considered it proper to remandthe case to the Trial Court, a fortiori, the HighCourt had no jurisdiction to decide the appealon merits. Moreover, Order 43 Rule 1(u)confers limited power on the High Court toexamine only the legality and correctness of theremand order of the first Appellate Court butnot beyond that. In other words, the High Courtshould have seen that Order 43 Rule 1(u) givesa limited power to examine the issue relating to *98* WP DC PROMOTIONSlegality of remand order, as is clear from Order43 Rule 1(u) which reads thus:- “1(u) an order under rule 23 or rule 23Aof Order XLI remanding a case, where anappeal would lie from the decree of theAppellate Court”19.It is well settled law that the jurisdiction todecide the appeal on merits can be exercised bythe Appellate Court only when the appeal isfiled under Section 96 or 100 of the Codeagainst the decree. Such was not the casehere.”[Emphasis supplied]56.Shri Kumbhakoni has then relied upon a judgmentdated 09.02.2021, delivered by this Court at the Nagpur Bench inWrit Petition No.3077/2020, Vijaysingh Gajrajsingh Chauhanvs. Governor of Maharashtra and others, AIR Online 2021Bombay 99, [Civil Writ Petition No.3077/2020 (Nagpur Bench)decided on 09.02.2021]. The averment of the State in the saidcase was that, the petition did not disclose any cause of action,no averments have been put forth as regards the right of thePetitioner being affected. Reliance was placed on Kusum Ingotsand Alloys Limited vs. Union of India and another, 2004 (6)SCC 254, Jotun India Private Limited vs. Union of India andothers, 2018 SCC Online Bombay 6400 and United Forumand others vs. The Union of India and others, 2018 SCC *99* WP DC PROMOTIONSOnline Bombay 2221, to buttress his contention that the Courtshould decide an issue if there is a cause of action and shouldrefrain from taking up an issue which is purely academic innature.57.He has then pointed out paragraphs 4, 7, 8 and 10,which read thus:-“4. Learned Advocate General further contendsthat the present matter not being a publicinterest litigation but a writ petition filed by thepetitioner, the requirement to disclose a causeof action, is mandatory. He further submits thatthe petitioner does not fall within theexpression "aggrieved person" and neither doeshe have any direct grievance, for whichreliance is placed upon Ayaaubkhan NoorkhanPathan Vs. State of Maharashtra and others,(2013) 4 SCC 465. Further contentions are thatthere is no executable prayer; the petitionmerely seeking a declaration is notmaintainable. He further submits that only para54 in the petition, remotely suggests of anycause of action, which does not satisfy therequirement of law of any cause in thepetitioner. The petition therefore according tohim is not maintainable and is required to bedismissed on that count alone.”“7. The right to approach a Court of law by aparty, is intrinsically linked to a cause ofaction, accrued in favour of such a party. Theapproach, is always for the redressal of agrievance or an entitlement, the denial of whichgives rise to a cause of action to a party whose *100* WP DC PROMOTIONSright is affected by any such cause of action.Thus, the traditional view as to a "cause ofaction" is always personal to the party. Thequestion whether passing of a legislation byitself would give rise to a cause of action, hasbeen considered by the Hon'ble Apex Court inRai Bahadur Hurdut Roy Moti Lal Jute Mills(supra) as under :-"7. On behalf of the appellant Mr LalNarain Sinha has contended that the HighCourt was in error in holding that the provisoto Section 14-A violates either Article 20(1) orArticle 31(2) of the Constitution. He hasaddressed us at length in support of his casethat neither of the two articles is violated by theimpugned proviso. On the other hand, thelearned Solicitor-General has sought to supportthe findings of the High Court on the said twoconstitutional points; and he has pressed beforeus as a preliminary point his argument that ona fair and reasonable construction, the provisocannot be applied to the case of the firstrespondent. We would, therefore, first deal withthis preliminary point. In cases where the viresof statutory provisions are challenged onconstitutional grounds, it is essential that thematerial facts should first be clarified andascertained with a view to determine whetherthe impugned statutory provisions areattracted; if they are, the constitutionalchallenge to their validity must be examinedand decided. If, however, the facts admitted orproved do not attract the impugned provisionsthere is no occasion to decide the issue aboutthe vires of the said provisions. Any decision onthe said question would in such a case bepurely academic. Courts are and should bereluctant to decide constitutional points merelyas matters of academic importance."The same has also been considered in Kartar *101* WP DC PROMOTIONSSingh (supra) as under :-"12. The standards themselves, it wouldbe noticed, have been prescribed by the CentralGovernment on the advice of a Committeewhich included in its composition personsconsidered experts in the field of foodtechnology and food analysis. In thecircumstances, if the rule has to be struck downas imposing unreasonable or discriminatorystandards, it could not be done merely on anyappropriate reasoning but only as a result ofmaterials placed before the Court by way ofscientific analysis. It is obvious that this can bedone only when the party invoking theprotection of Article 14 makes averments withdetails to sustain such a plea and leadsevidence to establish his allegations. Thatwhere a party seeks to impeach the validity of arule made by a competent authority on theground that the rules offend Article 14 theburden is on him to plead and prove theinfirmity is to well established to needelaboration. If, therefore, the respondentdesired to challenge the validity of the rule onthe ground either of its unreasonableness or itsdiscriminatory nature, he had to lay afoundation for it by setting out the factsnecessary to sustain such a plea and adducecogent and convincing evidence to make out hiscase, for there is a presumption that everyfactor which is relevant or material has beentaken into account in and formulating theclassification of the zones and the prescriptionof the minimum standards to each zone, andwhere we have a rule framed with theassistance of a committee containing expertssuch as the one constituted under Section 3 ofthe Act, that presumption is strong, if notoverwhelming. We might in this connection addthat the respondent cannot assert anyfundamental right under Article 19(1) to carry *102* WP DC PROMOTIONSon business in adulterated foodstuffs.13. Where the necessary facts have beenpleaded and established, the Court would havematerials before it on which it could basefindings, as regards the reasonableness orotherwise or of the discriminatory nature of therules. In the absence of a pleading and proof ofunreasonableness or arbitrariness the Courtcannot accept the statement of a party as to theunreasonableness or unconstitutionality of arule and refuse to enforce the rule as it standsmerely because in its view the standards are toohigh and for this reason the rule isunreasonable. In the case before us there wasneither pleading nor proof of any facts directedto that end. The only basis on which thecontention regarding unreasonableness ordiscrimination was raised was an aprioriargument addressed to the Court, that thedivision into the zones was not rational, in thathilly and plain areas of the country were notdifferentiated for the prescription of theminimum Reichert values. That a distinctionshould exist between hilly regions and plains,was again based on apriori reasoning restingon the different minimum Reichert valuesprescribed for Himachal Pradesh and UttarPradesh and on no other. It was, however, notas if the entire State of Himachal Pradesh is ofuniform elevation or even as if no part of thatState is plain country but yet if the sameminimum was prescribed for the entire area ofHimachal Pradesh, that would clearly showthat the elevation of a place is not the onlyfactor to be taken into account."In Kusum Ingots (supra) the Hon'bleApex Court held as under :-"19. Passing of a legislation by itself in ouropinion do not confer any such right to file awrit petition unless a cause of action arises *103* WP DC PROMOTIONStherefor.21. A parliamentary legislation when itreceives the assent of the President of India andis published in an Official Gazette, unlessspecifically excluded, will apply to the entireterritory of India. If passing of a legislationgives rise to a cause of action, a writ petitionquestioning the constitutionality thereof can befiled in any High Court of the country. It is notso done because a cause of action will ariseonly when the provisions of the Act or some ofthem which were implemented shall give rise tocivil or evil consequences to the petitioner. Awrit court, it is well settled, would notdetermine a constitutional question in vacuum."8. Thus the consistency of judicial opinion, in sofar as it considers the cause of action, for thepurpose of laying a challenge to theconstitutional validity of any statutoryprovision, as spelt out from the above decisions,clearly indicates that the person raising suchchallenge, ought to have a cause of action,which would mean material facts, enabling theexistence of a cause of action.”“10. It is further material to note that the petitioneralso does not fall within the expression"aggrieved person", as indicated inAyaaubkhan Noorkhan Pathan (supra) in thefollowing manner :-"9. It is a settled legal proposition that astranger cannot be permitted to meddle in anyproceeding, unless he satisfies theauthority/court, that he falls within thecategory of aggrieved persons. Only a personwho has suffered, or suffers from legal injurycan challenge the act/action/order etc. in acourt of law. A writ petition under Article226 of the Constitution is maintainable eitherfor the purpose of enforcing a statutory or legal *104* WP DC PROMOTIONSright, or when there is a complaint by theappellant that there has been a breach ofstatutory duty on the part of the authorities.Therefore, there must be a judiciallyenforceable right available for enforcement, onthe basis of which writ jurisdiction is resortedto. The Court can, of course, enforce theperformance of a statutory duty by a publicbody, using its writ jurisdiction at the behest ofa person, provided that such person satisfiesthe Court that he has a legal right to insist onsuch performance. The existence of such rightis a condition precedent for invoking the writjurisdiction of the courts. It is implicit in theexercise of such extraordinary jurisdiction thatthe relief prayed for must be one to enforce alegal right. In fact, the existence of such right,is the foundation of the exercise of the saidjurisdiction by the Court. The legal right thatcan be enforced must ordinarily be the right ofthe appellant himself, who complains ofinfraction of such right and approaches theCourt for relief as regards the same.10. A "legal right", means an entitlementarising out of legal rules. Thus, it may bedefined as an advantage, or a benefit conferredupon a person by the rule of law. Theexpression, "person aggrieved" does notinclude a person who suffers from apsychological or an imaginary injury; a personaggrieved must, therefore, necessarily be onewhose right or interest has been adverselyaffected or jeopardised.11.In Anand Sharadchandra Oka v.University of Mumbai, a similar view was takenby this Court, observing that, if a personclaiming relief is not eligible as perrequirement, then he cannot be said to be aperson aggrieved regarding the election or theselection of other persons." *105* WP DC PROMOTIONS58.Shri Kumbhakoni, therefore, submits that unless acause of action is intrinsically linked with a litigant in whosefavour a specific right in law has accrued, a court should avoidentering into the merits of the case in the absence of any causeespoused by the litigant. He then relies upon State of Bihar vs.Rai Bahadur Hurdut Roy Moti Lal Jute Mills and another,AIR 1960 SC 378, wherein, the Honourable Supreme Court hasheld that any decision on a question which is purely of anacademic nature, would serve no purpose and the Courts shouldbe reluctant to take up such an issue. He, therefore, sums up thatwhen both the members of the Tribunal had concurred on therebeing no cause of action and the Applicants had not locus standi,it should not have dealt with the merits of the case.59.Shri Kumbhakoni has submitted that Writ PetitionNo.12699/2022 filed by Nitin Mahajan vs. The State ofMaharashtra and others, is not maintainable since the Petitionerhas directly approached this Court praying for reliefs whichcould be considered only by the Tribunal. He relies upon thejudgment delivered by this Court dated 16.02.2022, delivered inWrit Petition No.12297/2021 (Aurangabad Bench), M/s Mestra *106* WP DC PROMOTIONSAG Switzerland vs. The State of Maharashtra and others.Paragraphs 14, 17, 26 and 27 read as under:-“14.In the present case, the machinery providingappeal is sought to be bye-passed by thepetitioner on the ground that the Tribunalhaving already pronounced its decision in asimilar matter, substantial justice cannot beexpected from the first appellate authority aswell as from the second appellate authority.This is the crux of Mr. Sridharan’s argument. Itis now time to examine the contentions raisedby him.”“17.Mr. Sridharan is again right, but only partially.Notwithstanding that questions of fact emergedfor decision in Thansingh Nathmal (supra), theSupreme Court had the occasion to lay downtherein a principle of law which is salutary andnot to be found in any other previous decisionrendered by it. The principle, plainly is that, if aremedy is available to a party before the highcourt in another jurisdiction, the writjurisdiction should not normally be exercisedon a petition under Article 226, for, that wouldand allow the machinery set up by theconcerned statute to be bye-passed. Therelevant passage from the decision reads asfollows: “The jurisdiction of the High Courtunder Article 226 of the Constitution is couchedin wide terms and the exercise thereof is notsubject to any restrictions except the territorialrestrictions which are expressly provided in theArticle. But the exercise of the jurisdiction isdiscretionary; it is not exercised merelybecause it is lawful to do so. The veryamplitude of the jurisdiction demands that itwill ordinarily be exercised subject to certainself-imposed limitations. Resort to thatjurisdiction is not intended as an alternative *107* WP DC PROMOTIONSremedy for relief which may be obtained in asuit or other mode prescribed by statute.Ordinarily the Court will not entertain apetition for a writ under Article 226, where thepetitioner has an alternative remedy which,without being unduly onerous, provides anequally efficacious remedy. Again the HighCourt does not generally enter upon adetermination of questions which demand anelaborate examination of evidence to establishthe right to enforce which the writ is claimed.The High Court does not therefore act as acourt of appeal against the decision of a courtor tribunal, to correct errors of fact, and doesnot by assuming jurisdiction under Article 226trench upon an alternative remedy provided bystatute for obtaining relief. Where it is open tothe aggrieved petitioner to move anothertribunal, or even itself in another jurisdictionfor obtaining redress in the manner provided bya statute, the High Court normally will notpermit, by entertaining a petition under Article226 of the Constitution, the machinery createdunder the statute to be by-passed, and willleave the party applying to it to seek resort tothe machinery so set up.”“26. To sum up, we are loath to entertain this writpetition by exercising our discretion because (i)the petitioner can approach this Court in itsappellate jurisdiction under section 27 of theMVAT Act at the appropriate time; and (ii) thepetitioner is free to rely on the decision inMahyco Monsanto Biotech (India) Pvt. Ltd.(supra) before the appellate authority to havethe impugned order reversed since suchdecision will prevail, if it is applicable, overany previous contra decision of the Tribunal.”“ 27. However, in the peculiar facts andcircumstances, viz. pendency of this writpetition on the file of this Court for quite some *108* WP DC PROMOTIONStime and that a Constitutional issue touchingArticle 286 of the Constitution is sought to beraised, we are inclined not to relegate thepetitioner to the first appellate remedy but togive it opportunity to prefer an appeal beforethe Tribunal directly, if it so chooses, so thatany infirmity in the impugned order can bebrought to its notice, including the decision ofthis Court in the case of Mahyco MonsantoBiotech (India) Pvt. Ltd. (supra), for itscorrection. It is ordered accordingly.” 60.He has then relied upon Gaurav Ganesh Das Dagaand others vs. MPSC and others, Writ Petition No.2270/2021(Mumbai Appellate Jurisdiction), wherein, this Court hasdelivered a judgment on 04.03.2022, concluding that when theprovisions of the Administrative Tribunals Act are applicable andthe Tribunal is a statutory forum, approaching the High Courtshould be discouraged. He relies upon paragraph Nos.8, 9, 11,16, 18, 22 and 23, which read as under:-“8. Having heard the parties and on consideration ofthe decisions cited at the Bar, we find no reason totake a view different from the one expressed by usorally on 2nd March, 2022. We completely concurwith the reasons assigned by the coordinate Benchin Vijay Ghogare (supra) for holding the writpetition to be not maintainable before the Court atthis stage. In view of such concurrence, we couldhave preferred to maintain reticence to assigningour reasons twice over on the same subject. *109* WP DC PROMOTIONSHowever, we wish to furnish our opinion with aview to clear certain misconceptions in law whileholding these writ petitions not to be maintainablebefore this Court. This, we feel, is required onnoticing the emergence of judicial decisions bysome Courts, based on misreading of the law laiddown in L. Chandra Kumar (supra) as well as T.K. Rangarajan (supra), whereby grievances ofState Government employees were entertained atthe first instance upon holding that the remedybefore the Tribunals constituted by the Act is analternative to the writ remedy available underArticle 226 of the Constitution. 9. The discussion on the topic must, however, beginwith Kiran Singh & Ors. vs. Chaman Paswan &Ors.. It happens to be one of the vintage decisionsof the Supreme Court referring to the fundamentalprinciple of law, well established, that a decreepassed by a Court without jurisdiction is a nullityand that its invalidity could be set up wheneverand wherever it is sought to be enforced or reliedupon, even at the stage of execution and even incollateral proceedings. A defect of jurisdiction,whether it is pecuniary or territorial, or whetherit is in respect of the subject matter of the actionstrikes at the very authority of the Court to passany decree, and such a defect cannot be curedeven by consent of parties. The said decision hasbeen followed in a long-line of decisions to whichreference is considered unnecessary at this stage.However, we wish to record why such decision isrelevant at a later part of this discussion.”“11. We have found on perusal of the decisions cited byMr. Deshmukh that some of the Courts have lostcomplete sight of the difference between analternative remedy (meaning thereby that, apartfrom the High Court, another statutory remedy isavailable that provides an equally efficaciousremedy and which could have been pursued by thelitigant, but he elects to explore the writ remedysince the bar of alternative remedy, being a rule of *110* WP DC PROMOTIONSself-imposed limitation, does not oust the writcourt’s jurisdiction) and a statutory remedy(which is provided by the law as the first, nayonly, legal remedy, whereafter the aggrieved partycould pursue, if so advised, the writ remedyquestioning the decision given by the statutoryfora). This position of law would require a littleelaboration in the wake of what the position inlaw was prior to the 42nd Constitution(Amendment) Act, 1976, which introduced PartXIV A in the Constitution containing Articles 323-A and 323-B as well as in the light of what theConstitution Bench laid down in L. ChandraKumar (supra) while inter alia examiningchallenges to sub-clause (d) of clause (2) ofArticle 323-A and section 28 of the Act.” “16. Having regard to such scheme of things,which could be pursued by an aggrievedemployee, we are also of the firm view that thelaw laid down in Whirlpool Corporation vs.Registrar of Trade Marks (carving out exceptionson the fulfillment whereof a writ petition could bedirectly entertained notwithstanding that thelitigant has not availed the alternative remedymade available by a statute) cannot be applied toproceedings seeking to invoke the writ jurisdictionof the High Court for relief when the subjectmatter of the action is covered by “servicematters” as defined in section 3(q) of the Act.”“18.Unhesitatingly therefore, we record that thedecision in Magadh Sugar & Energy (supra) doesnot assist the case of the petitioners.” “22. Now, we need to come back to Kiran Singh(supra) and say why it is relevant for the presentpurpose. In our considered opinion, a decisionrendered by the High Court on a challenge of thepresent nature (which is covered by the provisionsof the Act and MAT being the forum required to beapproached for relief) would be a nullity in viewof the decision in Kiran Singh (supra) read with L.Chandra Kumar (supra). Knowing and *111* WP DC PROMOTIONSunderstanding what the law is, straining ourselvesto look into the merits of the challenge andrendering a decision which we know would be anullity should not at all be attempted. 23. We ought to deal with one other side argument ofMr. Deshmukh before recording our conclusion.He has submitted that since the GRs underchallenge in this batch of writ petitions are alsounder challenge in a separate batch of writpetitions concerning recruitment of engineers inthe Maharashtra State Electricity DistributionCompany Ltd. (hereafter “MSEDCL”, for short),the MAT has no jurisdiction to try such writpetitions and the same would be required to beheard and decided on merits by this Court.However, driving one set of petitioners to movethe MAT while allowing another set of petitionersto have their claim decided by the High Courtcould lead to divergent opinions being rendered.He, therefore, submits that it is desirable that thisCourt hears all the writ petitions analogously.” 61.He contends that though the Tribunal at Aurangabadhas taken a particular view, the said Petitioner does not get aright to bypass the Tribunal and approach this Court directly.Moreover, the right of the Respondents also has to be consideredsince, if the said Petitioner was to succeed before the Tribunal, aright to test the legality and validity of the judgment delivered bythe Tribunal is available to the Respondents and such right standstaken away by the Petitioner having directly approached thisCourt. *112* WP DC PROMOTIONSShri Kumbhakoni’s submissions on the merits of thecases62.Shri Kumbhakoni refers to Section 26 of theAdministrative Tribunals Act to contend that the members of theTribunal have to identify the differing points. He relies onShekhar Narayan Shetty vs. Madhavlal Pittie and others,2015(4) Mh.L.J. 687. In support of his contention that thesematters deserve to be remitted to the Tribunal for a rehearing, herelied upon B. Premanand and others vs. Mohan Koikal andothers, (2011) 4 SCC 266.63.Shri Kumbhakoni further contends that since thisCourt is exercising supervisory jurisdiction, if there are inherentdeficiencies in the impugned judgment of the Tribunal, this Courtcannot take up the matters as if it is exercising jurisdiction in anappeal. The conclusions drawn by each member of the Tribunalcannot be rectified by this Court. He further submits that sincethe ‘coram’ of the Tribunal has changed, it would be fruitful toremand the matters to the Tribunal for a rehearing. *113* WP DC PROMOTIONS64. Shri Kumbhakoni submits that the consultation withthe Maharashtra Public Service Commission (MPSC), isinevitable and the Tribunal has clearly failed in considering thisaspect. Without concurrence of the MPSC, no promotion can belegalized/ratified by the State.Submissions of the learned Senior Advocate ShriRajadhyaksha65.Shri Atul Rajadhyaksha, the learned SeniorAdvocate, is leading all the learned Advocates, who areappearing for the PDC in all these matters.He submits that theWrit Petitions filed by the State of Maharashtra and the DDC,will have to be dismissed purely on the ground of non-joinder ofparties. The Tribunal has not been arrayed as a Respondent in thesaid petitions. He relies upon the judgment delivered by theHonourable Supreme Court in Udit Narain Singh Malpahariavs. Additional Member, Board of Revenue, Bihar, AIR 1963SC 786 and points out paragraph Nos.8 and 11, which read asunder:-“8.The next question is, what is the nature of a *114* WP DC PROMOTIONSwrit of certiorari? What relief can a petitionerin such a writ obtain from the Court?Certiorari lies to remove for the purpose ofquashing the proceedings of inferior courts ofrecord or other persons or bodies exercisingjudicial or quasi-judicial functions. It is notnecessary for the purpose of this appeal tonotice the distinction between a writ ofcertiorari and a writ in the nature of certiorari;in either case the High Court directs an inferiortribunal or authority to transmit to itself therecord of proceedings pending therein forscrutiny and, if necessary, for quashing thesame. It is well settled law that a certiorari liesonly in respect of a judicial or quasi-judicialact as distinguished from an administrative act.The following classic test laid down by Lordjustice Atkin, as he then was, in The Kind v.Electricity Commissioner (1924) 1 KB 171 andfollowed by this Court in more than onedecision clearly brings out the meaning of theconcept of judicial act:"Wherever any body of persons havinglegal authority to determine questions affectingthe rights of subjects, and having the duty to actjudicially.. act in excess of their legal authoritythey are subject to the controlling jurisdictionof the King's Bench Division exercised in thesewrits."Lord justice Slesser in The King v.London County Council, (1931) 2 KB 215 (243)dissected the concept of judicial act laid downby Atkin, L. J., into the following heads in hisjudgment: “wherever any body of persons (1)having legal authority (2) to determinequestions affecting rights of subjects and (3)having the duty to act judicially (4) act inexcess of their legal authority a writ ofcertiorari may issue". It will be seen from theingredients of judicial act that there must be aduty to act judicially. A tribunal, therefore, *115* WP DC PROMOTIONSexercising a judicial or quasi-judicial actcannot decide against the rights of 1 partywithout giving him a hearing or an opportunityto represent his case in the manner known tolaw. If the provisions of a particular statute orrules made thereunder do not provide for it,principles of natural justice demand it. Anysuch order made without hearing the affectedparties would be void. As a writ of certiorari"will be granted to remove the record ofproceedings of an inferior tribunal or authorityexercising judicial or quasi judicial acts, exhypothesi it follows that the High Court inexercising its jurisdiction shall also actjudicially in disposing of the proceedingsbefore it. It is implicit in such a proceeding thata tribunal or authority which is directed totransmit the records must be a party in the writproceedings, for, without giving notice to it, therecord of proceedings cannot be brought to theHigh Court. It is said that in an appeal againstthe decree of a subordinate court, the court thatpassed the decree need not be made a party andon the same parity of reasoning it is contendedthat a tribunal need not also be made a party ina writ proceeding. But there is an essentialdistinction between an appeal against a decreeof a subordinate court and a writ of certiorarito quash the order of a tribunal or authority: inthe former, the proceedings are regulated by theCode of Civil Procedure and the court makingthe order is directly subordinate to theappellate court and ordinarily acts within itsbounds, though sometimes wrongly or evenillegally, but in the case of the latter, a writ ofcertiorari is issued to quash the order of atribunal, which is ordinarily outside theappellate or revisional jurisdiction of the courtand the order is ;set aside on the ground thatthe tribunal or authority acted Without or inexcess of jurisdiction. If such a tribunal- or *116* WP DC PROMOTIONSauthority is not made party to the writ, it caneasily ignore the order of the High Courtquashing its order, for not being, a party, it willnot be liable, to contempt. In thesecircumstances whoever else is a necessaryparty or not the authority or tribunal iscertainly a necessary party to such aproceeding. In this case, the Board of Revenueand the Commissioner of Excise were rightly,made parties in the writ petition.”“11.The long established English practice, whichthe High Courts in our country have adoptedall along, accepts the said distinction betweenthe necessary and the proper party in a writ ofcertiorari. The English practice is recorded inHalsbury's Laws of England, Vol. 11, 3rd Edn.(Lord Simonds') thus in paragraph 136:"The notice of motion or summons mustbe served on all persons directly affected, andwhere it relates to any proceedings in or beforea court, and the object is either to compel thecourt or an officer thereof to do any act inrelation to the proceedings or to quash them orany order made therein, the notice of motion orsummons must be served on the clerk orregistrar of the court, the other parties to theproceedings, and (where any objection to theconduct of the judge is to be made) on thejudge........”.In paragraph 140 it is stated :"On the hearing of the summons ormotion for an order of mandamus, prohibitionor certiorari, counsel in support begins and hasa right of reply. Any person who desires to beheard in opposition, and appears to the Courtor judge to be a proper per-son to be heard, isto be heard not withstanding that he has notbeen served with the notice or summons, andwill be liable to costs in the discretion of theCourt or judge if the order should be *117* WP DC PROMOTIONSmade..........”So too, the Rules made by the Patna HighCourt require that a party against whom reliefis sought should be named in the petition. Therelevant Rules read thus:Rule 3. Application under Article 226 ofthe Constitution shall be registered asMiscellaneous judicial Cases or CriminalMiscellaneous Cases as the case may be. Rule 4. Application shall, soon after it isregistered, be posted for orders before aDivision Bench as to issue of notice to therespondents. The Court may either direct noticeto issue and pass such interim order as it maydeem necessary or reject the application.Rule 5. The notice of the application shall beserved on all persons directly affected and onsuch other persons as the Court may direct.Both the English rules and the rulesframed by the Patna High Court lay down thatpersons who are directly affected or againstwhom relief is sought should be named in thepetition, that is all necessary parties should beimpleaded in the petition and notice served onthem. In "The law of Extraordinary LegalRemedies" by Ferris, the procedure in thematter of impleading parties is clearlydescribed at p.201 thus:"Those parties whose action is to bereviewed and who are interested therein andaffected thereby, and in whose possession therecord of Such action remains, are not onlyproper, but necessary parties. It is to suchparties that notice to show cause against theissuance of the writ must be given, and they arethe only parties who may make return, or whomay demur. The omission to make parties thoseofficers whose proceedings it is sought to directand control, goes to the very right of the reliefsought. But in order that the court may do *118* WP DC PROMOTIONSample and complete justice, and renderjudgment which will be binding on all personsconcerned, all persons who are parties to therecord, or who are interested in maintaining theregularity of the proceedings of which a reviewis sought, should be made parties respondent."This passage indicates that both theauthority whose order is sought to be quashedand the persons who are interested inmaintaining the regularity of the proceeding ofwhich a review is sought should be added asparties in a writ proceeding. A division Benchof the Bombay High Court in Ahmedalli V.M.D. Lalkaka, AIR 1954 Bom 33 at p 34 laiddown the procedure thus:"I think we should lay down the rule ofpractice that whenever a writ is soughtchallenging the order of a Tribunal, theTribunal must always be a necessary party tothe petition. It is difficult to understand howunder any circumstances the Tribunal wouldnot be a necessary party when the petitionerwants the order of the Tribunal to be quashedor to be called in question. It is equally clearthat all parties affected by that order shouldalso be necessary parties to the petition."A Full Bench of the Nagpur High Courtin Kanglu Baula v. Chief Executive Officer, AIR1955 Nag 49 (FB), held that though theelections to various electoral divisions werevoid the petition would have to be dismissed onthe short ground that per-sons who weredeclared elected from the variousconstituencies were not joined as parties to thepetition arid had not been given an opportunityto be heard before the order adverse to themwas passed. The said decisions also support theview we have expressed.” *119* WP DC PROMOTIONS66.He has then relied upon paragraph Nos.31, 38 to 41and 43 in Jogendrasinhji Vijaysinghji vs. State of Gujarat andothers, (2015) 9 SCC 1, which read thus:-“31.The next facet pertains to the impleadment ofthe Court or tribunal as a party. The specialBench has held that even if application isdescribed as one not only under article 226 ofthe Constitution, but also under article 227, theCourt or tribunal whose order is sought to bequashed, if not arrayed as a party, theapplication would not be maintainable as oneof the relief of certiorari, in the absence of theconcerned tribunal or Court as a party, cannotbe granted. It has also been held that if theCourt or tribunal has not been impleaded asparty- respondent in the main writ petition,then by merely impleading such Court ortribunal for the first time in letters patentappeal would not change the nature andcharacter of the proceeding before the learnedSingle Judge and, therefore, intra-court appealwould not be maintainable. To arrive at thesaid conclusion, the High Court has referred toMessrs. Ghaio Mal & Sons v. State of Delhi andothers, Hari Vishnu Kamath (supra) and reliedupon a four-Judge Bench judgment in UditNarain Singh Malpaharia v. Addl. Member,Board of Revenue.”“38.After so stating, the four-Judge Bench referredto English practice as recorded in Halsbury’sLaws of England, Vol. 11, 3rd Edn. (LordSimonds’) and a Division Bench judgment ofthe Bombay High Court in Ahmedalli v. M.D.Lalkaka and a Full Bench decision of NagpurHigh Court in Kanglu Baula Kotwal v. JanpadSabha, Durg and summarized thus: (UditNarain Singh Malpaharia case, AIR p.790, *120* WP DC PROMOTIONSpara 12)“To summarise: in a writ of certiorarinot only the tribunal or authority whose orderis sought to be quashed but also parties inwhose favour the said order is issued arenecessary parties. But it is in the discretion ofthe court to add or implead proper parties forcompletely settling all the questions that maybe involved in the controversy either suo motuor on the application of a party to the writ oran application filed at the instance of suchproper party.”39. The High Court, as we find, relied on theaforesaid decision to form the foundation thatunless a Court or a tribunal is made a party,the proceeding is not maintainable. What hasbeen stated in Hari Vishnu Kamath (supra),which we have reproduced hereinbefore is thatwhere plain question on issuing directionsarises, it is conceivable that there should be inexistence a person or authority to whom suchdirections could be issued. The suggestion thatnon-existence of a tribunal might operate as abar to issue such directions is not correct as thetrue scope of certiorari is that it merelydemolishes the offending order and hence, thepresence of the offender before the Court,though proper is not necessary for the exerciseof the jurisdiction or to render its determinationeffective.40. In Udit Narain Singh (supra), the fulcrum ofthe controversy was non- impleadment of thepersons in whose favour the Board of Revenuehad passed a favourable order. There wasviolation of fundamental principles of naturaljustice. A party cannot be visited with any kindof adverse order in a proceeding without hebeing arrayed as a party. As we understand inHari Vishnu Kamath (supra), the seven-JudgeBench opined that for issuance of writ of *121* WP DC PROMOTIONScertiorari, a tribunal, for issue of purpose ofcalling of record, is a proper party, and even ifthe tribunal has ceased to exist, there would besome one incharge of the tribunal from whomthe records can be requisitioned and who isbound in law to send the records. The largerBench has clearly stated that while issuing awrit of certiorari, the Court merely demolishesthe defending order, the presence of theoffender before the Court though proper but isnot necessary for exercise of jurisdiction. Thesaid finding was recorded in the context of atribunal.41. In this context, we may profitably refer to thedecision in Savitri Devi (supra) wherein athree-Judge Bench, though in a differentcontext, had observed thus:-“14.Before parting with this case, it isnecessary for us to point out one aspect of thematter which is rather disturbing. In the writpetition filed in the High Court as well as thespecial leave petition filed in this Court, theDistrict Judge, Gorakhpur and the 4thAdditional Civil Judge (Junior Division),Gorakhpur are shown as respondents and in thespecial leave petition, they are shown ascontesting respondents. There was no necessityfor impleading the judicial officers whodisposed of the matter in a civil proceedingwhen the writ petition was filed in the HighCourt; nor is there any justification forimpleading them as parties in the special leavepetition and describing them as contestingrespondents. We do not approve of the courseadopted by the petitioner which would causeunnecessary disturbance to the functions of thejudicial officers concerned. They cannot be inany way equated to the officials of theGovernment. It is high time that the practice ofimpleading judicial officers disposing of civilproceedings as parties to writ petitions under *122* WP DC PROMOTIONSArticle 226 of the Constitution of India orspecial leave petitions under Article 136 of theConstitution of India was stopped. We arestrongly deprecating such a practice.””“43. As we notice, the decisions rendered in HariVishnu Kamath (supra), Udit Narain Singh(supra) and Savitri Devi (supra) have to beproperly understood. In Hari Vishnu Kamath(supra), the larger Bench was dealing with acase that arose from Election Tribunal whichhad ceased to exist and expressed the view howit is a proper party. In Udit Narain Singh(supra), the Court was really dwelling upon thecontroversy with regard to the impleadment ofparties in whose favour orders had been passedand in that context observed that tribunal is anecessary party. In Savitri Devi (supra), theCourt took exception to courts and tribunalsbeing made parties. It is apposite to note herethat propositions laid down in each case has tobe understood in proper perspective. Civilcourts, which decide matters, are courts in thestrictest sense of the term. Neither the court northe Presiding Officer defends the order beforethe superior court it does not contest. If theHigh Court, in exercise of its writ jurisdictionor revisional jurisdiction, as the case may be,calls for the records, the same can always becalled for by the High court without the Courtor the Presiding Officer being impleaded as aparty. Similarly, with the passage of time therehave been many a tribunal which onlyadjudicate and they have nothing to do with thelis. We may cite few examples; the tribunalsconstituted under the Administrative TribunalsAct, 1985, the Custom, Excise & Service TaxAppellate Tribunal, the Income Tax AppellateTribunals, the Sales Tax Tribunal and suchothers. Every adjudicating authority may benomenclatured as a tribunal but the said *123* WP DC PROMOTIONSauthority(ies) are different that pure and simpleadjudicating authorities and that is why theyare called the authorities. An Income TaxCommissioner, whatever rank he may beholding, when he adjudicates, he has to bemade a party, for he can defend his order. He isentitled to contest. There are many authoritiesunder many a statute. Therefore, theproposition that can safely be culled out is thatthe authorities or the tribunals, who in law areentitled to defend the orders passed by them,are necessary parties and if they are notarrayed as parties, the writ petition can betreated to be not maintainable or the court maygrant liberty to implead them as parties inexercise of its discretion. There are tribunalswhich are not at all required to defend theirown order, and in that case such tribunals neednot be arrayed as parties. To give anotherexample:- in certain enactments, the DistrictJudges function as Election Tribunals fromwhose orders a revision or a writ may liedepending upon the provisions in the Act. Insuch a situation, the superior court, that is theHigh Court, even if required to call for therecords, the District Judge need not be a party.Thus, in essence, when a tribunal or authorityis required to defend its own order, it is to bemade a party failing which the proceedingbefore the High Court would be regarded as notmaintainable.”67.He then points out Section 255(4) of the Income TaxAct, 1961, which is almost identical to Section 26 of theAdministrative Tribunals Act, 1985. He refers to DynavisionLtd. vs. Income Tax Appellate Tribunal and others, 2008 SCC *124* WP DC PROMOTIONSOnline Mad 1041 : (2008) 304 ITR 350 and adverts toparagraph Nos.9 to 11 and 13 to 15, which are as under:-“9. As, there is a difference of opinion between themembers of the Division Bench, they requested thePresident under section 255(4) of the Act toconstitute a third member for resolving theopinion expressed by each one of them. Accordingto the President, there is a difference of opinionwhile identifying the differences between themembers of the Division Bench. As there is nouniformity even in identifying the points, thePresident has formulated the points of differencebetween the Division Bench-Members anddecided the case on the merits. Aggrieved by thesame, the petitioner has filed W.P. No. 7060 of2000 challenging the order of the third member.10. Learned counsel appearing for the petitionersubmitted that the Third member has no right togo beyond the scope of reference in a matter ofdifference of opinion between the judicial memberand the accountant member. He has to consideronly the difference of opinion stated by themembers. So, the third member is wrong informulating the questions on his own anddeciding the case as against the assessee. It is,therefore, submitted that the order passed by thethird member is illegal and without justificationand the same should be quashed. Learned counselalso submitted that since the third memberexceeded his jurisdiction, the order passed by himhas to be set aside with a direction to the thirdmember to reconsider the matter afresh and alsofurther direction to the third member to consideronly the difference of opinion stated by therespective members..11. Learned counsel appearing for the Revenuesubmitted that even though the third member re-framed the difference of opinion, the sum and substance of the issue involved is the same, therefore, *125* WP DC PROMOTIONSthe order of the third member is in conformitywith law and the same should be affirmed. Shefurther stated that in view of the framing the newissues by the third member, she has no objectionto remand the matter with a direction to the thirdmember to consider only the difference of opinionreferred to by the judicial member and theaccountant member.”“13. From a reading of the above section makesit clear that whenever the members or Benchdiffer in opinion on any point, the point shall bedecided according to the opinion of the majority,if there is a majority. If the members are equallydivided, they shall state the point or points onwhich they differ, and the case shall be referred bythe President of the Appellate Tribunal forhearing on such point or points by one or more ofthe other members of the Appellate Tribunal, andsuch point or points shall be decided according tothe opinion of the majority of the members of theAppellate Tribunal who have heard the caseincluding the persons, who first heard it. Theorder of reference to the third member shallcontain the difference of opinion between themembers of the Bench. The President or the thirdmember has no right to go beyond the scope ofreference and they have to consider only thedifference of opinion stated by the members of theBench. Section 255(4) does not vest such powerwith the President or the third member. They havealso no right to formulate the question on theirown. Framing the question on their own goesbeyond the jurisdiction. The third member mustconfine himself to the order of reference.Therefore, he has no right to enlarge, restrict andmodify and/or formulate any question of law onhis own on the difference of opinion referred to bythe members of the Tribunal. In this case, theJudicial and the accountant member had thedifference of opinion and formulated the *126* WP DC PROMOTIONSquestions. The Third Member in paragraph 2 ofthe order has held as follows:“2. When there is difference of opinion evenwhile identifying the differences between themembers of the Division Bench, what is to bedone was earlier decided by me as a third memberin a case now found reported in ChetnaEnterprises v. ITO, [1999] 238 ITR (AT) 103(Patna). At page 125 of the reported decision,after extracting the provision of section 255(4) ofthe Income-tax Act, I held that in such a case thesolution should be found out as follows: “It would show that the point or points ofdifference shall be referred by the President to athird member. Suppose, if there is no unanimityeven in identifying the point or points of differenceamong the differing members, just like in thiscase, then I feel it is the duty of the President toidentify the real points of difference and referthem to a third member whom he may appointunder the powers given to him under section255(4)."Then, I identified the real differing pointsbetween the differing members and formulatedthem for decision of the third member, similarlyfollowing the said precedent, which was not eitherdisapproved or set aside by the Hon'ble HighCourt or Supreme Court, I feel that I shouldfollow the same procedure even in this case and,therefore, I went through the whole record, ordersof the differing members and I found out thatfollowing are the points of difference between thediffering Division Bench members and thesedifferences are to be resolved by the thirdmember: 1. Whether the assessee debited Rs. 4,59,10,736 tothe purchase account towards customs duty,added the said sum to the closing stock value anddebited the said sum to the profit and lossaccount?2. When did the liability to pay customs duty arise *127* WP DC PROMOTIONSto the assessee?3. Whether there was change of method ofaccounting adopted by the assessee whileaccounting customs duty liability in thisassessment year?4. Whether out of Rs. 4,59,10,736, the assesseepaid Rs. 3,34,13,672 between the date of close ofthe accounting year and the date of filing returnby the assessee under section 139(1) of theIncome-tax Act for the assessment year 1990-91,and it is, the asses see was correctly alloweddeduction of Rs. 3,34,13,672 as customs duty paidunder section 43B of the Income-tax Act ?and5. Whether the impugned sum of Rs. 1,24,97,664remained to be paid as customs duty and whetherits disallowance under section 438 on the groundof non-payment within the time allowed under theprovisions of section 438 is correct under law ?"14. The High Court of Madras, in the case of ITO v.Vice-President, ITAT, [1985] 155 ITR 310,considered the scope of section 255(4) of theIncome-tax Act, 1961, wherein it has been heldthat the power of the third member is confined togiving of a decision on the points on which themembers of the Tribunal had differed and whichhad been formulated by them as the question forthe decision of the third member and held asfollows (page 314):"Admittedly, in this case, the President ofthe Appellate Tribunal has referred the matter tothe third member (Thiru D. Rangaswamy) to hearon the point or points on which the two membersof the Tribunal had differed and on the thirdmember giving his decision on the point or pointsreferred to it, the appeal should be taken to havebeen decided by the opinion of the majority of themembers of the Appellate Tribunal who haveheard the case including those who first heard it.Thus, the power of the third member to whom the *128* WP DC PROMOTIONScase is referred is confined to giving of a decisionon the point on which the members had differedand which has been formulated them as aquestion for the decision of a third member.In this case, the third member hasproceeded on the basis that the question referredby the two members of the Tribunal is wideenough to enable the assessee to raise additionalpoints and, therefore, the additional pointspressed by the assessee should be considered.Even so, we are of the view that the third membershould have pronounced his opinion on the pointof difference as also on the additional pointsraised by the assessee. But without doing so, thethird member has remitted the matter to theoriginal two members of the Tribunal for a freshdecision. We are of the view that the third member,who is functioning under section 255(4) of the Actdoes not have such a power as to direct the twomembers of the Tribunal who had differed on thepoint referred to the third member, to decide aparticular point or act in a particular manner.Such a power vests only with an appellate orrevisional authorities, if there are any. The powerof the third member to whom the points ofdifference have been referred cannot act as if itwere an appellate authority over the two membersof the Tribunal and direct them to rehear anddispose of the matter afresh. No doubt, the thirdmember, in this case, happened to be the Vice-President. But that will not clothe him with thepower to give directions or remit the matterswhile functioning under section 255(4) of the Act.The learned Advocate General appearing for theassessee would say that section 255(4) of the Actshould be read in conjunction with section 254(1)of the Act which deals with the powers of theAppellate Tribunal. According to him, the thirdmember to whom the points of difference havebeen referred, should be taken to have all thepowers of the Tribunal under section 254(1) and *129* WP DC PROMOTIONSas such the Tribunal can pass such orders as itthinks fit. Therefore, the third member has got thepower to pass any order as he thinks fit. Thesubmission of the learned Advocate-General is indirect conflict with the language and the objectbehind section 255(4) of the Act. When section255(4) says that the third member shall decide thepoints of difference referred to him and thedecision of the Tribunal will be as per themajority opinion, the third member is expected togive his decision, whatever it is, so that themajority opinion could be determined for thepurpose of disposal of the appeal before theTribunal. If, based on the language of section254(1) of the Act, we were to hold that the thirdmember can pass any order he likes, then such anorder will not serve the purpose for which section255(4) of the Act was introduced in the statutebook. It is well established that the provisions ofthe Act have to be construed harmoniously so asto give effect to all the provisions of the Act and tocarry out the objects sought to be achieved by thevarious statutory provisions. In this case, the thirdmember has not chosen to give his opinion oneway or the other either on the point of dispute,i.e., on the mode of computation of the capitalgains or on the new points urged by the assesseebefore him. If the third member has entertainedthe new points and has given his opinion one wayor the other, as also on the point of disputereferred to it, it can be said that he has actedwithin his jurisdiction, though it may be open tothe Revenue to contend before the appropriateforum that the third member should not haveentertained the new points which were not urgedbefore the two members of the original Tribunal.In this case, as already stated, without giving hisdecision on any of the points the third member hasmerely remitted the matter to the two members ofthe Tribunal for a fresh consideration on all thepoints. We do not see how the third member to *130* WP DC PROMOTIONSwhom the point of dispute is referred undersection 255(4) can claim to have any larger powerthan the two members who originally constitutedthe Tribunal. The third member has no higherpower or jurisdiction than the members whooriginally constituted the Tribunal, and therefore,the remit order directing them to rehear the matterwill be clearly outside the jurisdiction of the thirdmember. Hence, we cannot sustain legally theorder of the third member, in this case, remittingthe matter to the two members of the originalTribunal without expressing any opinion on thequestion which he had to consider."15. Similar view was also taken by the AllahabadHigh Court, in the case of Jan Mohammed v. CIT,(1953] 23 ITR 15, and considered the scope of theprovision of section 5A(7) of the Act,corresponding to section 255(4) of the new Act,wherein it was held that the third member candecide only the point that had been referred tohim and he cannot formulate the new pointshimself and reads as follows (page 25):"The third member could, therefore, decideonly the point that had been referred to him andhe could not formulate a new point for himself onwhich he could base his decision. It appears to usto be further clear from a reading of the sub-section quoted above that, after the decision of thepoint or points referred to him by the thirdMember, the case should go back to the originalTribunal because so far as we can see, the thirdmember has not been given any right to decide theappeal. According to section 5A(6) of the Income-tax Act, the appeal must be decided by theTribunal which must consist of a Bench of not lessthan two members. As we have already said, thepoint referred to the third member was whetherthere could be a presumption legally drawn fromthe materials on the record that the bus belongedto the 'appellant', and on that point the third *131* WP DC PROMOTIONSmember having agreed with Shri Kalbe Abbasthat no such presumption could be legally drawn,the majority view was in favour of the assessee.The last part of section 5A(7) of the Act providesthat the point or points have to be decidedaccording to the opinion of the majority of themembers of the Tribunal who had heard the caseincluding those who had first heard it. After theopinion of the third member had been obtainedthe case should have gone back to the Tribunalfor its final orders."”68.He has then referred to H. Chandunmul vs.Commissioner of Income Tax, 1953 The Indian Law Reports(Vol.XXXII) Patna Series 445. His contention, therefore, is thatif Section 26 is to be invoked, it is not for this Court to frame thepoints/ divergent opinions, which is for the members of theTribunal to formalize. Unless the members set out the points ofdifference between the two, this Court cannot frame such pointsfor reference to the third Member under Section 26. As has beenheld in H. Chandunmul (supra), even the Chairperson/ Presidentcannot frame the points and it has to be left to the members ofthe Tribunal who have to forward the points on which they differ,to the Chairperson for adjudication. *132* WP DC PROMOTIONS69.In the above backdrop, Shri Rajadhyaksha contendsthat if the DDCs desire to invoke Section 26 of the Act, theywould have to implead the Tribunal as a Respondent in thepresent proceedings. This Court will have to issue notices to theTribunal calling upon it to explain as to why the points were notformulated and whether, Section 26 was lost sight off. Afterconsidering the explanation of the Tribunal, this Court canconclude on the issue referable to Section 26 of the Act. He,therefore, sums up on this issue by contending that the petitionspreferred by the DDCs will have to be dismissed for non joinderof parties.Submissions of Shri Rajadhyaksha on the 1977 Rules 70.Shri Rajadhyaksha has contended that Rule 13(5) isthe determination test for deciding the seniority inter-se theTahasildar [on promotion to Deputy Collector (PDC)] and theDDC. The promotional ladder begins from the Tahasildar-Deputy Collector- Deputy Collector (Selection Grade)-Additional Collector- Additional Collector (Selection Grade) andthen the Collector. *133* WP DC PROMOTIONS71.He contends that the terms ‘permanent’ post,‘temporary’ post and ‘officiating’ posts are not defined under the1977 Rules. He adverts to Rule 9(40) “permanent post” and9(53) “temporary post” of the Maharashtra Civil Services(General Conditions of Services) Rules, 1981 (for short “theMCS Rules of 1981”), which read as under:-“(40) Permanent Post means a post carrying adefinite rate of pay sanctioned without limit oftime.”“(53)Temporary post means a post carrying adefinite rate of pay sanctioned for a limitedtime.”“Note- Substantive appointments totemporary posts should be made in a limitednumber of cases only, as for example, whenposts are, to all intents and purposes, quasi-permanent or when they have been sanctionedfor a period of not less than, or there is reasonto believe that they will not terminate within aperiod of three years. In all other cases,appointments in temporary posts should bemade in an officiating capacity only.Instruction.- The benefit of substantiveappointments to temporary posts contemplatedin the above note should not be allowed to beenjoyed by more than one personsimultaneously. Therefore, where a Governmentservant has already been appointedsubstantively to a temporary post and there is atemporary interruption in his tenure of the post,it would not be proper to appoint anotherGovernment servant substantively to the postduring such temporary interruption. For thispurpose, interruptions which are likely to lastfor less than 3 years may be treated as *134* WP DC PROMOTIONStemporary. It follows, therefore, that where aGovernment servant is already appointedsubstantively to temporary post a secondGovernment servant should not be appointedsubstantively to it unless the previous holder ofthe post has been transferred from itpermanently or unless he has been transferredtemporarily and there is reason to believe thathe will remain absent from the post for a periodof not less than three years.”72.According to him, the definition of ‘continuousservice’ under Rule 2(d) of the 1977 Rules read with the provisothere below and Rule 2(i) defining “fortuitous service”, wouldmean that the service between the commencement of officiatingas a Deputy Collector until the deemed date is granted.73.He refers to clause 5.2 of the impugned final listdated 31.12.2020 and points out that the State Government hastaken a conscious decision that it would not take a review of thePDC under Rule 12. This categoric stand renders the select list asdefined under Rule 2(n), final. He then refers to the definition of‘cadre’ under Rule 9(5) and ‘officiate’ under Rule 9(35) of theMCS Rules, 1981.74.He further contends that the quota of Deputy *135* WP DC PROMOTIONSCollectors would include the sanctioned strength as well as theadhoc/ temporary appointments by way of promotions of theTahasildars. He adverts to the judgment of the Tribunal deliveredin O.A. No.526/ 2004 dated 17.04.2008 wherein, the Tribunalhas concluded in paragraphs 55 and 56 that the ‘quota’ wouldinclude both these categories. With this submission, he contendsthat the rule of appointing the Direct Deputy Collectors inbetween 35% to 50% and commensurate appointments ontemporary promotions of the PDC, would be included in the saidquota. Hence, the number of posts of Deputy Collectors wouldnot be restricted to 514 for the period 1999 upto 2012.75.He has relied upon the judgment delivered in O.P.Singla and another vs. Union of India and others, (1984) 4SCC 450 and has relied upon paragraph Nos.1 to 3, 8 and 16 to18, which read as under:-“1.Once again, we are back to the irksomequestion of inter se seniority betweenpromotees and direct recruits. The contestants,this time, are judicial officers of Delhi. Ourfamiliarity, generally, with the difficulties in theway of judicial officers and our awareness oftheir just aspirations make our task difficultand sensitive. 2.The conclusion to which we have come in this *136* WP DC PROMOTIONSjudgment is not different from the one reachedby our learned Brother Sabyasachi Mukharji.In this Judgment, Brother Mukharji hasdiscussed, more fully, the various aspects of thismatter as also the decisions which were citedbefore us. Our reasons for writing this separateopinion are, the general importance of thiscase. the fact that it concerns the higherjudiciary and our respectful disagreement withBrother Mukharji on the interpretation of someof the provisions with which we are concernedin these Writ Petitions.3.There are many decisions bearing upon thefamiliar controversy between promotees anddirect recruits and this will be one more.Perhaps, just another. Since those variousdecisions have not succeeded in finding asatisfactory solution to the controversy, wewould do well by confining our attention to thelanguage and scheme of the rules which areunder scrutiny herein, instead of seeking toderive a principle of universal application tothe cases like those before us. Previousjudgments of this Court are, of course, bindingto the extent that they are relevant and theycannot be ignored. But, if they turn upon theirown facts, the general set-up of the particularservice, its historical development and thewords of the impugned provisions, no usefulpurpose will be served by discussing thosecases at length, merely to justify an observationat the end that they have no application and aredistinguishable.”“8.Rules 7 and 8 which are crucial to thecontroversy between the promotees and directrecruits read thus : "Rule 7- Regular Recruitment:- Recruitment after the initial recruitment shallbe made : (a) by promotion on the basis of selection from *137* WP DC PROMOTIONSmembers of the Delhi Judicial Service, whohave completed not less than 10 years ofService in the Delhi Judicial Service. (b) by direct recruitment from the Bar.Provided that not more than 1/3rd of thesubstantive posts in the Service shall be held bydirect recruits." "Rule 8-(1) The inter-se seniority of members ofthe Delhi Judicial Service promoted to theService shall be the same as in the DelhiJudicial Service. (2) The seniority of direct recruits vis-a-vispromotees shall be determined in the order ofrotation of vacancies between the directrecruits and promotees based on the quotas ofvacancies reserved for both categories by Rule7 provided that the first available vacancy willbe filled by a direct recruit and the next twovacancies by promotees and so on."”“16.Logically, we must begin this inquiry with thequestion as to the interpretation of the provisoto Rule 7. Does that proviso prescribe a quotaor does it merely provide for a ceiling ? Inother words, does the proviso require that, atany given point of time, 1/3rd of the substantiveposts in the Service shall be reserved for directrecruits or does it only stipulate that the postsheld by direct recruits shall not be more than1/3rd of the total number of substantive posts inthe Service? The proviso reads thus: "Provided that not more than 1/3rd of thesubstantive posts in the Service shall be held bydirect recruits."This language is more consistent with thecontention of the promotees that the provisomerely prescribes, by way of imposing aceiling, that the direct recruits shall not holdmore than 1/3rd of the substantive posts.Experience shows that any provision which isintended to prescribe a quota, generally *138* WP DC PROMOTIONSprovides that, for example, "1/3rd of thesubstantive posts shall be filled in by directrecruitment." A quota provision does not usethe negative language, as the proviso in theinstant case does, that "not more than" one-third of the substantive posts in the Serviceshall be held by direct recruits. 17.If the matter were to rest with the proviso, itsinterpretation would have to be that it does notprescribe a quota for direct recruits : it onlyenables the appointment of direct recruits tosubstantive posts so that, they shall not holdmore than 1/3rd of the total number ofsubstantive posts in the Service. However, it iswell recognised that, when a rule or a section isa part of an integral scheme, it should not beconsidered or construed in isolation. One musthave regard to the scheme of the fasciculus ofthe relevant rules or sections in order todetermine the true meaning of any one or moreof them. An isolated consideration of aprovision leads to the risk of some other inter-related provision becoming otiose or devoid ofmeaning. That makes it necessary to callattention to the very next rule, namely, rule 8. Itprovides by clause 2 that : "The seniority of direct recruits vis-a-vispromotees shall be determined in the order ofrotation of vacancies between the directrecruits and promotees based on the quotas ofvacancies reserved for both categories by Rule7 provided that the first available vacancy willbe filled by a direct recruit and the next twovacancies by promotees and so on." This provision leaves no doubt that theoverall scheme of the rules and the trueintendment of the proviso to Rule 7 is that 1/3rdof the substantive posts in the Service must bereserved for direct recruits. Otherwise, therewould neither be any occasion nor any *139* WP DC PROMOTIONSjustification for rotating vacancies betweendirect recruits and promotees. Rule 8 (2), whichdeals with fixation of seniority amongst themembers of the Service, provides, as it were, akey to the interpretation of the proviso to Rule 7by saying that the proviso prescribes "quotas"and reserves vacancies for both categories. Thelanguage of the proviso to Rule 7 is certainlynot felicitous and is unconventional if itsintention was to prescribe a quota for directrecruits. But the proviso, as I have statedearlier, must be read along with Rule 8 (2)since the two provisions are inter-related. Theircombined reading yields but one result, that theproviso prescribes a quota of 1/3rd for directrecruits. 18.The process of reading the Rules as parts of aconnected whole does not end with Rules 7 and8. Rules 16 and 17 are also relevant for thepresent purpose and have, indeed, an importantbearing on the question of reservation ofvacancies for direct recruits to the extent ofone-third of the substantive posts in the Service.Clause (1) of Rule 16 confers power upon theAdministrator to create temporary posts in theService. By clause (2) of Rule 16, such postsare required to be filled, in consultation withthe High Court, from amongst the members ofthe Delhi Judicial Service, that is to say, thepromotees. Rule 17, which is in the nature of anon-obstante provision, provides that notwithstanding anything contained in the Rules,the, Administrator may, in consultation with theHigh Court, fill substantive vacancies in theService by making temporary appointmentsthereto from amongst the members of the DelhiJudicial Service. The position which emergesfrom the provisions contained in Rules 16 and17 is that it is permissible to create temporaryposts in the Service and, even substantivevacancies in the Service can be filled by making *140* WP DC PROMOTIONStemporary appointments. The twofoldrestriction on this dual power is that the HighCourt must be consulted and such appointmentsmust be made from amongst the promoteesonly. If temporary appointment to the Service,either in temporary posts or in substantivevacancies, can be made within the frameworkof the Rules and have to be made, if at all, fromamongst the promotees and promotees only, thequota rule contained in the proviso to Rule 7must inevitably break down when suchappointments are made. The simple reasonleading to that consequence is that directrecruits cannot be appointed either totemporary posts in the Service or to substantivevacancies in the Service which are filled in bymaking temporary appointments. Thus, eventhough the proviso to Rule 7 prescribes a quotaof one-third for direct recruits, Rules 16 and 17permit the non- observance of the quota rule inthe circumstances stated in these rules.”76.He refers to paragraph Nos.2, 4, 7, 10, 11, 13 and 14in V. Bhasker Rao and others vs. State of A.P. and others,(1993) 3 SCC 307, which read as under:-“2.The recruitment to the Andhra Pradesh HigherJudicial Service (the Service) is governed bythe Rules called "The Andhra Pradesh StateHigher Judicial Service Special Rules" (theSpecial Rules). Rules 1, 2, 4 and 6 of theSpecial Rules which are relevant are as under: "Rule 1. Constitution:- The service shall consistof the following categories:- Category-1 :- District and Sessions Judges 1stGrade. *141* WP DC PROMOTIONSCategory-II :- District and Sessions Judges,Second Grade including Chairman, AndhraPradesh Sales Tax Appellate Tribunal, ChiefJudge, City Civil Court, Additional ChiefJudge, City Civil Court, Chief Judge, Court ofsmall Causes, Chief City Magistrate,Chairman, Tribunal for DisciplinaryProceedings, Presiding Officers, Labour Courtsand Addl. District and Sessions Judges. Rule 2. Appointment :- (a) Appointment toCategory-I shall be made by promotion fromCategory-II and appointment to Category-IIshall be made:- (i) by transfer from among:- (a) Sub-Judges in the Andhra State JudicialService; or in the Hyderabad State JudicialService; and (ii) by direct recruitment from the Bar:Provided that 33-1/3% of the total number ofpermanent posts shall be filed or reserved to befilled by direct recruitment. Explanation:- In the determination of 33-1/3%of the total number of permanent posts,fractions exceeding one-half shall be countedas one and other fractions shall be disregarded.(b) All promotions shall be made on grounds ofmerit and ability, seniority being consideredonly when merit and ability are approximatelyequal. Rule 4. Probation:- Every person appointed toCategory-II otherwise than by transfer, shall,from the date on which he joins duty be onprobation for a total period of one year on duty.Rule 6. Seniority:- The seniority of a personappointed to Category 1 or Category 2 shall bedetermined with reference to the date fromwhich he was continuously on duty in thatcategory."” “4.On a plain reading of the Special Rules thesalient features of the Service can be culled out *142* WP DC PROMOTIONSas under: (1) Rule 1 provides for the constitution ofthe Service. All the posts of District andSessions Judges Second grade created fromtime to time are part of the Service. The naturalcorollary is that the Service consists ofpermanent as well as temporary posts. (2) The recruitment to Category-II of theservice is by transfer from amongst theSubordinate Judges and also by direct recruitsfrom the Bar. (3) 33 1/3% of the total number ofpermanent posts in Category-II of the Serviceare to be filled by way of direct recruitment. (4) The seniority under Rule 6 is to bedetermined with reference to the date fromwhich a person is continuously on duty.Whether the person is continuously on dutyagainst a temporary post or permanent post isof no consequence. A person is entitled to thefixation of his seniority on the basis ofcontinuous length of service rendered eitheragainst permanent post or temporary post.”“7.Mr. P.P. Rao, learned counsel for the petitionershas raised the following contentions for ourconsideration: (1) That the Service consists of onlypermanent posts under the Special Rules. Thereis no provision under the Special Rules foradding temporary posts to the cadre. Theappointment of respondents to the posts ofDistrict and Sessions Judges Second grade ontemporary basis can at best be treated underrule 10(a)(i) of the State Rules. (2) The temporary service rendered byrespondents.4 to 16 being outside the cadrecannot be counted towards seniority. (3) Proviso to Rule 2 and Rule 6 of theSpecial Rules have to be read together anddoing so the permanent vacancies having been *143* WP DC PROMOTIONSmade available for respondents 4 to 16 in theyear 1983 their service prior to that datecannot be counted towards seniority.”“10.Mr. Madava Reddy then contended that thepetitioners were appointed in the years 1981and since then till the year 1988 twelveseniority lists have been published showing thepetitioners below respondents 4 to 16. At nopoint of time they challenged the seniority listsin the Court. Even when the writ petitions filedby Chalapathi and others were pending theydid not intervene before the High Court. Thepetitioners, according to Mr. Madava Reddy,are guilty of gross delay and latches and assuch are not entitled to get relief by way of thispetition under Article 32 of the Constitution ofIndia.”“11.We see considerable force in both thecontentions raised by Mr. Madava Reddy. Weare, however, of the view that it would be in thelarger interest of the Service to dispose of thispetition on merits.”“13.Having taken the view that the Service underthe Special Rules consists of permanent as wellas temporary posts the second contention of Mr.Rao looses its ground. Temporary, posts ofDistrict and Sessions Judges Second gradebeing part of the Service the seniority has to becounted on the basis of length of serviceincluding the service against a temporary post. 14.The third contention of Mr. Rao is mentioned tobe rejected in view of Rule 6 of the SpecialRules. Rule 6 of the Special Rules is in no waydependent on proviso to Rule 2 of the SpecialRules. Both are to be operative independently.In the scheme of the rules the seniority rule isnot dependent on the quota Rule. Quota hasbeen provided for the direct recruits only *144* WP DC PROMOTIONSagainst permanent posts. The seniority rulepermits the counting of total period of servicefrom the date a person is on duty against a postin the category. Even though, the petitionerswere appointed substantively to the serviceearlier to respondents 4 to 16 but in view ofRule 6 they cannot be declared senior on thebasis of continuous length of service againsttemporary as well as permanent postsrespondents 4 to 16 have been rightly givenseniority above the petitioners.” 77.The learned Senior Advocate Shri Rajadhyaksha hasrelied upon the following judgments:-(a)Income Tax Officer, Company Circle-II, Madrasvs. Vice President, ITAT, 1983 SCC Online Mad 358.(b)Jagannath Agarwalla vs. The King, Volume XXIVCalcutta Weekly Notes 405.(c)State of Orissa vs. Minaketan Patnaik, AIR 1953Orissa 160 : 1952 SCC Online Orissa 34.(d)Miss Leena Khan vs. Union of India and others,(1987) 2 SCC 402.(e)LIC vs. S.S. Srivastava, 1988 Supp SCC 1.(f)Air India Cabin Crew Association vs.Yeshaswinee Merchant, 2003 (6) SCC 277.(g)Kusum Ingots & Alloys Ltd. vs. Union of India *145* WP DC PROMOTIONSand another, (2004) 6 SCC 254.(h)S. Ramanathan vs. Union of India and others,(2001) 2 SCC 118.Submissions of Shri Ajay S. Deshpande78.Shri Ajay S. Deshpande, the learned Advocaterepresenting the Petitioners in Writ Petition No.9163/2022(Samiksha Chandrakar and Pandurang Kulkarni), besides hisoral submissions, has tendered his Written Notes. The gist of hissubmissions is as under:-(a)The Government Resolution dated 31.12.2020determining the cadre strength has not been challenged.However, it was incorrectly stated that it was challenged in TANo.1/2021. For this incorrect statement, Shri Deshpande tendersan unconditional apology.(b)The cadre strength is irrelevant because the Rulesrefer to ‘permanent posts,’ not ‘cadre strength’. Thus, whetherthe cadre strength is 514 or 5014, it does not impact the case.This Court has to determine only ‘permanent post’.(c)The GR dated 31.12.2020 determining cadrestrength year wise from 1980 onwards, retrospectively, is *146* WP DC PROMOTIONSirrelevant. Any retrospective determination of cadre strength orincrease in cadre strength, is disapproved by the HonourableSupreme Court in Union of India vs. Hemraj Singh Chauhan,(2010) 4 SCC 290.(d)Merely because PDCs do not challenge thedetermination of cadre strength retrospectively, will notautomatically validate the order of determining cadre strength,retrospectively.(e)The permanent posts of Deputy Collectors were 413as of 11.08.1980. The Tribunal erroneously presumed 514 posts.The Government failed to provide documents justifying thisincrease. The PDC never agreed the figure of permanent 514posts.(f)26 posts of Leave Reserve Deputy Collectors havebeen abolished and 25 posts of Additional Collectors’ cadre havebeen created and thus, the total number of permanent posts in theyear 1992, were 383. (g)The Government has come with a specific case that514 posts of Deputy Collectors include ‘permanent posts’ as wellas ‘temporary posts’ in the cadre, which in fact is a logical stand,which has not been accepted and endorsed by the Tribunal. *147* WP DC PROMOTIONS(h)The prejudice that is caused to the PDCs is becausethe Government has considered the ‘cadre strength’ and‘permanent posts’ as synonyms, due to which the number of‘permanent posts’ has suddenly increased from 383 in the year1995 to 514 in 1999. The Government is not able to substantiatethis sudden increase in the ‘permanent posts’. (i)Since the Administrative Tribunal has categoricallyrecorded a finding that, the promotions of the petitioners hereinare neither 'adhoc' nor by way of 'stop gap arrangement' or inbreach of the Rules, as a necessary corollary thereof, the entireservice rendered by the petitioners will have to be counted for thepurpose of seniority.(j)Despite acknowledging the Petitioners’ validpromotions, the Tribunal did not appropriately address theseniority list, resulting in contradictions.(k) Attempts were made by the PDCs to submitrelevant documents demonstrating the increase in permanentposts, but the Government did not produce them. Though someof the documents were produced by the Government, same donot deal with conversion of the posts of Deputy Collectors into‘permanent posts’, but they deal with creation of posts of Deputy *148* WP DC PROMOTIONSCollectors on ‘temporary basis’.(l)The Petitioners respect this Court’s decision not tocall for additional records from the Tribunal.(m) One Mr.Waman Kadam, who was senior toPetitioner No.2 (Pandurang Kulkarni) was given a deemed dateof promotion vide the order dated 24.06.2010. It is only and onlywhen, the junior is promoted in a substantive capacity, thequestion of deemed date comes into play, and not otherwise.Therefore, on this count as well, promotions of the Petitionerscannot be considered to be either 'adhoc' or ‘fortuitous’.(n)Government circulars dated 11.06.1993 and06.06.2002 and the meeting proceedings dated 14.09.2009,confirm that the Petitioners’ promotions were substantive, not‘adhoc’.(o)The case of Mr. Jairam Vinayak Deshpande decidedby the Tribunal at the Principal Seat in Original ApplicationNo.573/1999 supports the Petitioners’ contentions that theirpromotions were not ‘adhoc’.(p)On 15.04.1999, the DPC was properly convenedunder the Government Resolution dated 03.03.1999, forconsidering the claims of the eligible Tahasildars for promotion *149* WP DC PROMOTIONSto the posts of Deputy Collectors, which culminated inpromotions of the Petitioners, on 08th and 9th July, 1999. As such,the Petitioners’ promotions followed proper procedures, makingthe claim of fortuitous promotions untenable.(q)The Tribunal’s finding regarding ineligibility of thePetitioners to be considered for promotion, lacks merit, as itignored substantial affidavits and evidence on record.(r)The Petitioners never feared reversion. Therefore,the observations of the Tribunal about reversion, are absolutelyout of context. (s)In so far as the nomination of IAS is concerned, thecareer-graph in the cadre of Deputy Collectors is significant andnot merely the career-graph of Additional Collectors. This facthas been lost sight of by the Administrative Tribunal. (t)Loss of opportunity to be considered for IASnomination is indeed a cause, which was required to be takeninto consideration by the Administrative Tribunal. However, ithaving failed to consider the same, intervention of this Hon'bleCourt is inevitable.(u)Once the Tribunal disapproves the method ofdetermining seniority impugned before it, as an inevitable *150* WP DC PROMOTIONSconsequence thereof, the impugned seniority list must have beenquashed and set aside. Seniority in the cadre of DeputyCollectors continues to assume significance, till an incumbententers in IAS cadre. (v) If there is an illegality in determination of seniority,the question of adjusting equities becomes absolutely irrelevant.As such, the Tribunal is not expected to adjust the equities, as itdoes not have any such powers akin to the powers of theHonourable Supreme Court under Article 142 of the Constitutionof India.(w)In the process of satisfying everybody, although theAdministrative Tribunal disapproved the method of preparingseniority list and holding the appointments of the Petitioners tobe in a substantive capacity, declining to set aside the impugnedseniority list, is indeed a blunder, warranting intervention of thisCourt to subserve the ends of justice and also to set the things inorder by appropriately issuing directions to remove absurdity inthe impugned decision.(x)Though the Tribunal did not quash the impugnedseniority list, but directed the State Government to remove theremark ‘fortuitous service’ against the names of the incumbents *151* WP DC PROMOTIONSat Serial Nos.582 to 700. This has resulted in yet another irony,inasmuch as, junior incumbents to the Petitioners become regularbefore the Petitioners and the seniors continue to be adhoc.(y)The learned Member (Administration) had nojustification to record the findings contrary to the pleadings onrecord, once he is a party to the decision rendered withconsensus. (z)Whether, at any point of time during last 20 years ormore, inclusion of Petitioner No.2 or any of the Petitioners wasever a subject matter of challenge before any of the Court orForum and a candid answer to the query is ‘NO’. Therefore, theissue cannot be permitted to be opened after 20 long years,during which the Respondents have chosen to accept theposition, without a slightest protest thereto.(aa)Direct Recruits were given deemed date ofpromotion in the cadre of Deputy Collectors much latter in pointof time, than the conferment of Selection Grade on thePetitioners promotees. Never ever grant of Selection Grade to thePetitioners PDC was the subject matter of challenge, andtherefore, surreptitious change in the approach of theGovernment in the year 2018 or there about, and an attempt to *152* WP DC PROMOTIONSadvocate the cause of the direct recruits, is beyondcomprehension of a man of ordinary prudence. (bb)If the permanent posts were 514 since long, thenthere was no necessity of appointing the Petitioners as Tahsildars.Having regard to the number of vacancies available then, fromday one in the year 1994, the Petitioners promotees will have tobe considered or treated as Deputy Collectors. This has asignificance with Sub Rule 2 of Rule 4 of 1977 Rules, whichrequires the Government to determine the 'permanent posts' inthe cadre in advance, so as to send a requisition to the PublicService Commission for selecting particular number ofcandidates. 79.We had raised certain queries, which are reflected inour order dated 28.06.2024. The learned Advocate Shri A.S.Deshpande submitted that the Petitioners (original Applicants)are unable to locate from the impugned judgment, despitereading it over and over again, any such finding concluding thatthe Applicants are not aggrieved parties. All the prayers put forthby them have been considered by the Tribunal, except the prayerfor quashing the impugned seniority list. He adds that, however, *153* WP DC PROMOTIONSthe Tribunal has observed that the Applicants do not have asurviving cause of action. This conclusion was founded on thestatement made on behalf of the State Government in it’saffidavit in reply dated 01.02.2022 filed by Mr.Madhav Veer, thatnone of the Applicants or the Respondents before the Tribunalwould be reverted and hence, the Tribunal held that theApplicants do not have a surviving cause of action.80.Shri Deshpande further submits that the seniority listdated 31.12.1998, has attained finality and there has been nochallenge to the same. The circular dated 29.06.2010 is atestimony of the said seniority list being crystallized. This hasalso been reiterated in the impugned seniority list vide paragraphNos.7.1 and 7.2. Paragraph Nos.11 and 20 of the affidavit inreply of the State Government before the Tribunal crystallize thesaid issue.81.Shri Rajadhyakshya, the learned Senior Advocate,submits that it was the statement of the State Government beforethe Tribunal that none of the Applicants would be reverted. Hesubmits that the Petition filed by Nitin Gunaji Mahajan (Writ *154* WP DC PROMOTIONSPetition No.12699/2022) concerns the issue as to how theseniority list in the cadre of Deputy Collectors, which includesPDC and DDC, ought to be compiled when the class of PDC andDDC have merged for the first time for the purpose of theseniority. He points out that the Tribunal has held in theimpugned judgment (paragraph Nos.73-74) that, “The methodadopted by Respondent No.1 to reckon the seniority of PDC fromthe date of their absorption in the permanent posts is apparentlycontrary to the provisions in the Recruitment Rules. We,therefore, disapprove the same and declare it to be invalid andunsustainable.”82.With regard to the fate of the seniority list of DeputyCollectors dated 31.12.1998, Shri Rajadhyakshya submits thatthe same has been finalized on 29.06.2010, which is apparentfrom the circular dated 31.12.2020 (clauses 7.1 and 7.2) andparagraphs 11 and 12 of the affidavit in reply filed by the State.83.The learned Senior Advocate Shri Apte confirms thecontentions of Shri Deshpande and Shri Rajadhyakshya. Hefurther points out the circular dated 25.04.2014 and submits that *155* WP DC PROMOTIONSthe combined seniority list for the period 01.01.1999 to31.12.2000 was confirmed. Earlier seniority lists have beenreferred to while concluding below paragraph No.3 as under:-“३. सदरज्येष्ठतासूचीम.ना.से. ( ज्येष्ठतेचेवि(cid:8)विनयमन) १९८२मध्ये वि(cid:8)विहतकेलेलीस(cid:8)&सा(cid:5)ारणतत्(cid:8)ेआणिणखालीलबाबीवि(cid:8)चारातघेऊनतयार करण्यातआलीआहे.१) ज्येष्ठतासूचीतनमूदअधि(cid:5)का- यांपैकीसरळसे(cid:8)ाप्रवि(cid:8)ष्टउपजिजल्हाधि(cid:5)का- यांचीमहाराष्ट्रलोकसे(cid:8)ाआयोगानेविनधि5तकेलेल्यागुण(cid:8)त्ता यादीप्रमाणेत्यांचीआपआपसातीलज्येष्ठताराखण्यासा(cid:31)ीत्यांना समायोजिजतविदनांकदेऊनज्येष्ठताविनधि5तकरण्यातआलीआहे.२) पदोन्नतअधि(cid:5)का- यांच्याबाबतीतसामान्यतःत्यांच्यारुजू विदनांकानुसारतर्थाविपविन(cid:8)डसूचीतीलक्रमकायम(cid:31)े(cid:8)ूनज्येष्ठताविनधि5त करण्यातआलेलीआहे. परंतुएखाद्याज्येष्ठअधि(cid:5)का- यासपदोन्नतीचेआदेश काढल्यानंतरपदोन्नतीच्यापदा(cid:8)ररुजूहोण्यासा(cid:31)ीप्रशासकीयकारणास्त(cid:8) वि(cid:8)लंबझालाअसल्याचेविनदश&नासआणल्यास(cid:8)आयुक्तांनीत्याचीयोग्यती छाननीकेलीतरत्यांचीआपसातीलज्येष्ठताकायमराखण्यासा(cid:31)ी आयुक्तांच्याअह(cid:8)ालाप्रमाणेत्यांनासमायोजिजततारखादेऊनत्यांचीज्येष्ठता विनधि5तकरण्यातयेईल.”84.Below clauses 4, 5 and 6 of the circular dated25.04.2014, objections were called for and it was apprised to all *156* WP DC PROMOTIONSthat the seniority list would be confirmed after considering theobjections.85.It was after taking into account the objections, theseniority list for the period 01.01.1999 to 31.12.2000, wasconfirmed. He further submits that the DDCs are accepting theimpugned seniority list dated 31.12.2020, but are not inagreement with the preamble to the extent it maintains that theseniority list for the period 01.01.1998 to 31.12.1998 is final.They cannot selectively accept few portions of the seniority listonly to the extent it gives them an advantage. The originalApplicants had prayed for quashing of the seniority list. Thisprayer was considered by the Division Bench of the Tribunal andthere is no dispute between the members that the impugned listdoes not deserve to be quashed and set aside. He further submitsthat the impugned seniority list has been rightly prepared on thebasis of the statutory Rules of 1977.86.Shri Sapkal, the learned Senior Advocate submittedin rebuttal, on the basis of the gist set out in the brief writtennotes tendered to the Court, that the conditional promotion orders *157* WP DC PROMOTIONShave been issued in the past more than three decades and no rightof seniority or pay fixation of the cadre of the Deputy Collectorwould accrue in favour of the PDC. Once the original Applicantshave accepted conditional promotion orders, they are estoppedfrom denying the applicability of the conditions imposed uponthem. Since the State has considered the rules of 1977 framedunder Article 309 of the Constitution of India, the originalApplicants cannot claim to have entered into the cadre of DeputyCollectors on the basis of the provisional promotion orders. Hefurther submits that the seniority list as on 31.12.1998, ought tohave been modified and revised as per paragraph No.6 of thecircular dated 29.06.2010. The seniority list as on 31.12.1998,cannot be said to have attained finality. Considering thestatement of the State Government before the Tribunal that thePDC would not be reverted, the State Government has to standby it’s statement.CONCLUSIONS87.We have considered the extensive submissions of thelearned advocates and have referred to the pleadings before theTribunal as well as the analysis of the Tribunal in the impugned *158* WP DC PROMOTIONSjudgment, which also comprises of a separate portion authoredby the learned Member (Administrative). As is visible from thejudgment, both the members have agreed that the OriginalApplicants have not suffered any legal injury and yet, theTribunal has opened the whole issue that travels over a period ofmore than 30 years. It is also obvious that the Tribunal has notentertained both the Applications and has left the impugnedseniority list, untouched. 88.The first and foremost issue to be considered by theTribunal was as to whether, any legal injury was caused to theoriginal four Applicants. Applicant Nos.1 and 2 were appointedas Tahsildar and they assumed office on 02.03.1994. Technically,they completed five years on 01.03.1999. They were appointed asDeputy Collectors on 08th July, 1999. They were promoted asAdditional Collector on 30.01.2020. Similar is the case of thetwo Applicants in T.A. No.02/2021.89.It is undisputed that they were promoted ontemporary basis. The temporary promotion order of these fourApplicants in the cadre of Deputy Collectors hinges on the fact *159* WP DC PROMOTIONSthat it was purely a temporary promotion as is mentioned in theirorders as ‘ विनव्(cid:8)ळतात्पुरत्यास्(cid:8)रूपातपदोन्नती’. This can neither becontradicted, nor have the four Applicants adverted to thecontrary. So also, their orders clearly indicate that theirtemporary promotion was subject to the approval of the MPSC.There is no controversy that no such approval was given by theMPSC as there was no consultation between the DPC and theMPSC. It was also set out that their temporary promotion wouldnot create any equities or rights in their favour and that would notimprove their seniority or salary structuring (see paragraph No.8of this judgment). Be that as it may, the State made a statementbefore the Tribunal that, no matter what may be the irregularitiesin the ad-hoc promotions of the PDCs, none would now bereverted. A statement made on behalf of the State Government,is found in it’s affidavit in reply dated 01.02.2022, filed byMr.Madhav Veer, that none of the Applicants or the Respondentsbefore the Tribunal would be reverted. We have every reason tobe circumspect as to how would the State cope up with the hugemess created by innumerable ad-hoc promotions made over thepast 30 years. Nevertheless, the assurance of the State that nonewould be reverted, has dispelled the apprehension of the 4 *160* WP DC PROMOTIONSApplicants.90.It cannot be lost sight of, that, if the challenge posedby these four Applicants is held to be devoid of merits, theirpetitions (Transfer Applications) will have to be dismissed. Iftheir claim is rejected by this Court, the further issues as regardsthe legality and validity of the seniority order dated 31.12.2020,need not be subjected to any further scrutiny. 91.In Ajinkya Natha Padwal (supra), the BombayHigh Court left it open to the State Government to take anindependent decision whether to make promotions on ad-hocbasis pending finalization of the seniority list. It is undisputedthat several ad-hoc promotions have been effected by the StateGovernment in the last four decades. The temporary promotionorders issued to these four Applicants, was under a caveat of theapproval of the competent authority, keeping in view thelanguage used ‘ सक्षमप्राधि(cid:5)करणाच्यामान्यतेनेतदर्थ&पदोन्नत्यादेण्यात ’येतआहेत. It is also undisputed that the first ad-hoc promotion ofthese four Applicants from the Tahasildar to Deputy Collector on09.07.1999, was de-hors the requirement of consultation and *161* WP DC PROMOTIONSapproval by the competent authority.92.Under sub-rule (2) of Rule 9 of the 1977 Rules, theCommittee that was constituted by the State with the intent andpurpose of formalizing the select list of Tahasildars so as to bepromoted as Deputy Collectors, was to meet in the month ofSeptember of 1999 and not there before. However, a meeting ofthe DPC was held on 15.04.1999 and the select list was prepared,de-hors Rule 9(2). The DPC, by holding a meeting on15.04.1999, apparently overlooked possible candidates whocould have been considered if the meeting was held inSeptember, 1999, under Rule 9(2). The promotion orders wereissued on 09.07.1999. Both the learned Members of the Tribunalhave concluded that there is a deviation from the RecruitmentRules. The distinction, however, is that the learned Member(Judicial) treated such deviation as a minor contravention/irregularity, whereas, the other learned Member (Administrative)has concluded that the Applicants were not eligible for inclusionin the final combined seniority list prepared as per Rule 8(4), soas to be placed for consideration of the DPC, for promoting themto the cadre of Deputy Collectors. *162* WP DC PROMOTIONS93.Considering the submissions of the four originalApplicants, coupled with the submissions of the other non-Applicants and the Petitioners before us and taking into accountthe undisputed fact situation emerging from the record and the1977 Rules, it cannot be contradicted that the ad-hoc promotionof the four Applicants (viz. Shivaji T. Shinde appointed as aTahasildar on 12.07.1995 and promoted on ad-hoc basis asDeputy Collector on 30.08.2001, Sunil V. Yadav appointed as aTahasildar on 08.08.1995 and promoted on ad-hoc basis asDeputy Collector on 30.08.2001, Samiksha R. Chandrakarappointed as a Tahasildar on 24.02.1994 and promoted on ad-hocbasis as Deputy Collector on 08.07.1999 and Pandurang R.Kulkarni appointed as a Tahasildar on 31.05.1994 and promotedon ad-hoc basis as Deputy Collector on 08.07.1999), was de-horsthe Rules.94.It cannot be ignored that 75 days time is required toprepare the final combined seniority list. These Applicants wereappointed as ad-hoc PDC in the hurriedly convened DPC on15.04.1999, which is in contravention of the Rules. As such, *163* WP DC PROMOTIONSsince the final selection list was not formalized in compliancewith the Rules while preparing the select list, these fourApplicants cannot be said to have been appointed as PDC indeference to the Rules applicable.95.In this legal and factual backdrop, though the fourApplicants may be aggrieved because of being pushed down bythe impugned seniority list dated 31.12.2020, thereby givingthem a cause to approach the Tribunal, the fact remains that theirgrievance is misconceived and unsustainable. Had it been thecase that the placement of these 4 Applicants in the seniority listof the cadre of Dy. Collectors had some bearing on the ad-hocpromotion already granted to them, it could have been said thatthe cause of action was surviving for them to prosecute the 2applications. Now, the Applicants have also crossed that hurdleand have already entered into the cadre of Additional Collector.As assured by the Government, they are not to be reverted.96.It cannot be contradicted that, on the one hand, theState found it convenient to resort to ad-hoc promotions, perhapsout of necessity, and on the other hand, the State had no reason to *164* WP DC PROMOTIONSact in undue haste and prepare the select list, not in ignorance,but by overlooking and ignoring the 1977 Rules. Even otherwise,these four Applicants were only engaged as ad-hoc PDC(temporary promotion as Promotee Deputy Collectors) as a stop-gap arrangement, which does not justify the contention that theyshould be treated as validly promoted Deputy Collectors.Admittedly, since a select list as prescribed by sub-rule (7) ofRule 9 was prepared, apparently without consultation with theMPSC, these four Applicants could not have been in the finalselect list. This defeats the claim of these four Applicants to betreated as being regularly promoted Deputy Collectors w.e.f.30.08.2001 (first two Applicants) and 08.07.1999 (other twoApplicants) in view of proviso (i) below Rule 10(1) of the 1977Rules.97.It is evident that there was no consultation of theState with the MPSC, while including these four Applicants inthe select list, before determining the final select list of theTahsildars under sub-rule 7 of Rule 9. So also, no review of theirservices was carried out as per Rule 12 of the 1977 Rules. *165* WP DC PROMOTIONS98.The proviso (i) and (ii), to Rule 10(1) of the Rules of1977, provide for filling up the vacancies in the cadre of DeputyCollectors purely as a stop-gap arrangement. However, proviso(i) indicates that only an officer in the cadre of Tahasildar whosename has been included in the combined final seniority listprepared under Rule 8(4), could be appointed as a DeputyCollector on a stop-gap basis. The Applicants were not eligiblefor appointment even on stop-gap basis on the post of DeputyCollector under proviso (i) of Rule 10.99.On the one hand, though the Rules mandate that theApplicants deserve to be reverted back to the cadre of Tahasildar,this would amount to turning the clock back by more than 2decades, which may lead to multiple administrativecomplications. On the other hand, accepting the claim of theApplicants to grant them seniority w.e.f. their date of joining thecadre of Deputy Collectors, would amount to injustice to theDDC. Regularization of the PDC in the combined seniority listseems to be the only plausible way out which has been *166* WP DC PROMOTIONSapparently accepted by most of the PDC, except these fourApplicants.100.In a recently delivered judgment by the HonourableSupreme Court (Coram : Dr.Dhananjaya Y. Chandrachud, VikramNath and B.V. Nagarathna, JJJ) in Malook Singh and others vs.State of Punjab and others (supra), a reference was made bythe Honourable Court to the judgment delivered by the Court inDirect Recruit Class II Engineering Officers’ Association vs.State of Maharashtra, (1990) 2 SCC 715, and more particularlyparagraph Nos.13 and 47, reproduced in this judgment inparagraph No.19 herein above. It was, thus, concluded inMalook Singh (supra), that when the initial appointment is onlyad-hoc and not according to the Rules and made as a stop-gaparrangement, the officiation in such post cannot be taken intoaccount considering the seniority. 101.In Union of India and another vs. Professor S.K.Sharma, AIR 1992 SC 1188, the Honourable Supreme Courtconcluded that the seniority of an appointee is to be reckonedfrom the date of his regular appointment and not from the day he *167* WP DC PROMOTIONSofficiated on ad-hoc/ officiating basis. 102.The names of these four Applicants had not beenincluded in the select list of Tahsildars, if any, as per Rule 9(3)(iii), since their names did not appear in the final combinedseniority list of Tahsildars which has to be prepared under Rule8(4). Nevertheless, now that they have become AdditionalCollectors and with the assurance from the State that they willnot be reverted, the impugned seniority list, hardly dents theircareer chances. Therefore, it can be concluded that the fourApplicants cannot be said to be aggrieved in order to have acause to question the impugned seniority list. When the seniorityof these Applicants, was not likely to be adversely affectedbecause of any change in their position in the impugned senioritylist of Deputy Collectors, in fact, no cause of action wouldsurvive for the said applicants to pray for setting aside theimpugned seniority list.103.Three judgments of the Supreme Court, viz. (i)Union of India and another vs. Prof. S.K. Sharma, AIR 1992SC 1188, (ii) Excise Commissioner, Karnataka and another *168* WP DC PROMOTIONSvs. V. Sreekanta, AIR 1993 SC 1564 and (iii) P.K. Singh vs.Bool Chand Chablani and others, AIR 1999 SC 1478, clearlylay down the law that the ‘services rendered on adhoc basiscannot be considered for the purpose of reckoning seniority’.104.The Tribunal has unanimously concluded that thefour Applicants did not have any locus-standi to challenge theimpugned final list dated 31.12.2020 and the final seniority listdated 03.03.2018. These four Applicants were in excess of thequota and, therefore, they would be eligible for regularizationfrom the dates a permanent vacancy arose within their quota.Until then, they would continue to be adhoc appointees and theday they are absorbed on a permanent vacant post in the cadre,that would be the day of their entering the Deputy Collector’squota. 105.The officers who are awaiting their promotion to thepost of Dy. Collector Selection Grade, are working on the postPDC for more than 17-18 years. As such, we do not apprehendthat the chances of their promotion to the post of Selection GradeDy. Collector, could be affected. Once these officers are *169* WP DC PROMOTIONSpromoted to the post of Dy. Collector Selection Grade, thecriteria would be ‘merit’ and not ‘seniority’, for their furtherpromotion to the post of Additional Collector.106.In M.S.L. Patil, Asstt. Conservator of Forests,Solapur (Maharashtra) and others vs. State of Maharashtraand others, (1996) 11 SCC 361, it is observed that even if manyyears have passed in the PDC cadre, if there is no review, theresult of returning back as Tahsildar, has to follow. However, thiswould have disastrous effects on every PDC and DDC. Noticingthis impact, the State Government declared before the Tribunalthat none of the these officers would be reverted, which includesthe 4 Applicants before the Tribunal.107.The direction issued by the Tribunal to prepare afresh seniority list from 2004, was nobody’s prayer before theTribunal. So also, this would surely impact those PDCs/DDCs,who were not before the Tribunal. Moreover, when the Tribunalhas held that the four Applicants did not have the ‘locus standi’and had no cause of action, it could not have granted any reliefindirectly to the Applicants, which they could not have been *170* WP DC PROMOTIONSgranted directly.108.The effect of the irregularities in the ad-hocpromotions of the 4 Applicants is writ large. The Tribunal hasdealt with the factors indicating the irregularities in details. Wehave, as well, adverted to the same as we recorded thecontentions of the learned Advocates, elaborately. Whileexercising Supervisory jurisdiction and not Appellatejurisdiction, we cannot interfere in a judgment only because adifferent view is possible, and more so when a plausible view hasbeen taken.109.In the backdrop of this settled position of law, wehave considered the views expressed by the two learnedMembers of the Tribunal. Much ado has been made by thelitigating parties before us, contending that two divergent viewshave been expressed by the two learned Members. We do notentirely agree with this submission. Both the learned Membershave expressed their findings in different ways. Finally, thelearned Member (Administrative) has handed down a concurringjudgment. *171* WP DC PROMOTIONS110.We agree with the view taken by the Tribunal thatthe very transition of these 4 Applicants, from Tahsildars topromotee deputy Collectors, is an irregularity. The seniority listdated 31.12.1998, has attained finality and there has been no challengeto the same. The circular dated 29.06.2010 is a testimony of the saidseniority list being crystallized. This has also been reiterated in theimpugned seniority list vide paragraph Nos.7.1 and 7.2. ParagraphNos.11 and 20 of the affidavit in reply of the State Government beforethe Tribunal, crystallized the said issue. In the light of the same, theimpugned final seniority has been settled. The grievance of these4 Applicants is, therefore, baseless and does not deserveconsideration. Except these 4, all other PDCs have accepted theimpugned seniority list.111.We need to consider another angle, as to whether theTribunal could have made suggestions and issued directions,when it had come to a conclusion that both the Applicationsdeserved to the rejected. Once the Tribunal came to a conclusionthat the grievance of the 4 Applicants is unsustainable, it shouldnot have travelled any further as their Applications deserved no *172* WP DC PROMOTIONSconsideration. Therefore, issuing guidelines and suggestions, wasunwarranted, more so, when all those who would be affected bysuch suggestions or directions, were not before the Tribunal.112.Consequentially, when the challenge posed by thefour Applicants had been rejected, the Tribunal could not havetravelled beyond their prayers. Since we have concluded thatboth the Transfer Applications of these four Applicants deserve tobe rejected, the suggestions put forth by the Tribunal belowparagraph No.87 and the consequential order below paragraphNo.88, deserve to be quashed. There was no reason, in our view,for the learned Tribunal to make suggestions when the impugnedseniority list was not to be interfered with or set aside.113.The law is clearly laid down in Kusum Ingotsand Alloys Limited vs. Union of India and another, 2004 (6)SCC 254, Jotun India Private Limited vs. Union of India andothers, 2018 SCC Online Bombay 6400 and United Forumand others vs. The Union of India and others, 2018 SCCOnline Bombay 2221, that the Court should decide an issue ifthere is a cause of action and should refrain from taking up an *173* WP DC PROMOTIONSissue which is purely academic in nature. 114.In view of our conclusions in this judgment and asboth the Transfer Applications fail, we have no reason to dealwith the other contentions made by the private parties/ Petitionersbefore us. The grievance of these four Applicants as against theimpugned seniority list dated 31.12.2020, is unsustainable. Boththe Transfer Applications, on this ground, deserve to bedismissed.115.Writ Petition Nos.11692/2022 and 11762/2022,filed by the State, are allowed. Accordingly, the two TransferApplications stand dismissed. Consequentially, the suggestions/directions issued by the learned Tribunal in paragraph Nos.87and 88, are quashed and set aside. Rule is made absolute inthese two petitions.116.In view of the above analysis and our conclusions,Writ Petition No.12699/2022, filed by Mr. Nitin Mahajan v/sState of Maharashtra and others, does not deserve consideration.Moreover, with our conclusions recorded above, no purpose *174* WP DC PROMOTIONSwould be served in entertaining this Petition. Therefore, WritPetition No.12699/2022, stands disposed off. Rule isdischarged in this petition. 117.In view of the above, Writ Petition No.9163/2022(filed by Samiksha Ramakant Chandrakar and another), WritPetition No.9631/2022 (filed by Vijaysingh ShankarraoDeshmukh), Writ Petition No.9632/2022 (filed by TusharEknath Thombre), and Writ Petition No.12675/2022 (filed byK. K. Suryakrishnamurty), are dismissed. Rule is discharged inthese four petitions. 118.After this judgment was pronounced, the learnedSenior Advocate Shri Rajadhyaksha, representing the Petitionerin Writ Petition No.12699/2022, Shri Ajay S. Deshpande, thelearned Advocate representing the Petitioners in Writ PetitionNo.9163/2022 and Shri Avinash S. Deshmukh, the learnedAdvocate, representing Respondent Nos.3 and 4 in Writ PetitionNo.9632/2022 and Respondent Nos.1 and 2 in Writ PetitionNo.11692/2022, prayed for staying the operation of thisjudgment. *175* WP DC PROMOTIONS119.The learned Senior Advocate Shri R.S. Apte,representing the State of Maharashtra as a Special Counsel alongwith the learned Senior Advocate Shri P.R. Katneshwarkar andthe learned Senior Advocate Shri V.D. Sapkal, submit that theOriginal Applications (Transfer Application Nos.1/2021 and2/2021), were dismissed by the learned MaharashtraAdministrative Tribunal vide the impugned judgment dated26.08.2022. There has been no protective order passed by thelearned Tribunal thereafter. When the parties reached this Courtin these petitions, there was no interim order operating. At thesame time, the judgment of the learned Tribunal impugned inthese petitions, was also not stayed.120.The learned Senior Advocate Shri Rajadhyaksha andthe learned Advocate Shri Deshpande, raised a question as towhy did the State not issue any orders of promotion when therewere no prohibitory orders from this Court. In our view, thisquestion cannot be posed to the Court. It is between the partiesand the State. This Court had never passed any order in thenature of either staying the judgment of the Tribunal or *176* WP DC PROMOTIONSinjuncting the State Government from issuing promotion orders. 121.In fact, the learned Senior Advocate Shri Apte hadsuggested before this Court on 31.01.2024 that any furtherdevelopment that may take place with regard to the promotionsof eligible candidates, can be made subject to the result of thesepetitions. In short, neither the judgment of the learned Tribunaldismissing the Original Applications, was kept in abeyance, norhad this Court issued any injunctory order. We have not issuedany order or direction to any of the parties before us. We haveonly upheld the verdict of the Tribunal, which had dismissed the2 proceedings before it. Hence, no orders. (Y.G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)(Kalyan Sangvikar, PS)