The Bombay High Court partly allowed a writ petition filed by three MHADA employees, holding that their seniority, originally recognized in 2013, was wrongly altered, leading to unjust promotions of their juniors.
The petitioners argued that the preparation of the seniority list finalized in December 2013 was in accordance with the actual officiation and the same was based on the regulations framed by the MHADA itself. They relied on the judgment of the Supreme Court in Pawan Pratap Singh vs. Reevan Singh and others[1] to support the contention that seniority should be computed from the date of substantive appointment and not from the date of occurrence of the vacancy.
As far as the date of appointment of the petitioners is concerned, the Court held that their appointments were admittedly earlier in point of time. In contrast, the respondents had not even been issued formal appointment orders at that stage and those were eventually issued at a deferred juncture since the respondents did not possess the validity, being from the reserved category. This position was not even disputed by the learned Senior Counsel appearing for the MHADA.
The controversy essentially arose when the petitioners’ seniority, recognized in the 2013 list, was later disturbed, resulting in juniors being promoted ahead of them.
However, the Court ruled that the alteration in the seniority list by relying on the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 was unjustified, since Rule 2 of those Rules clearly states that if the employer has its own set of rules, the 1982 Rules would not apply. The Court further stated that the right to be considered for promotion, when it arises in accordance with the MHADA Rules, is regarded as a fundamental right in service jurisprudence and cannot be tinkered with. The expressions “recruitment” and “appointment” are two distinct and independent concepts in service law; therefore, seniority will always be reckoned from the actual date of appointment.
The Division Bench comprising Sachin S. Deshmukh, J. and Nitin W. Sambre, J. directed MHADA to restore the seniority of the petitioners as reflected in the 2013 list and to take consequential steps for promotion, if due. The petition was accordingly partly allowed with these directions.
Appearances:
Petitioners: Mr. S.P. Bhandarkar, Advocate for petitioners
Respondents: Mr. N.R. Patil, AGP for respondent No.1
Mr. M.V. Samarth, Senior Advocate i/b Mr. A.R. Fule, Advocate for respondent Nos.2 & 3.
[1] Pawan Pratap Singh vs. Beevan Singh and others (2011) 3 SCC 267
