SUDHAKAR BABURAO NANGNURE v. NORESHWAR RAGHUNATHRAO SHENDE & ORS.

A as JDTP and the first respondent as the senior-most eligible officer, was entitled to be appointed to the post. The state has issued a GR dated 5 October 2015 under which the condition prescribing the minimum required experience for promotion cannot be relaxed; and (iv) seniority and eligibility are different concepts and merely because a person is senior does not make an individual eligible for consideration. B

77Copy pinpoint77. On the above foundation, it has been urged that even if the catch-up rule is made applicable to the appellant in the post of JDTP, he was not eligible to be considered for promotion as DTP in terms of Rule 3 which requires a minimum of three years’ experience as JDTP. The catch-up rule, in this submission, provides for a notional state of affairs vis-à-vis a person who was earlier promoted under a reserved category. In other words, the catch-up rule will not provide actual service required to fulfill the requirement of eligibility.

78Copy pinpoint78. Eligibility has to be considered on the date of the occurrence of the vacancy. On 30 April 2016, the appellant did not fulfill the eligibility required for the post of DTP. In assailing the decision of the first respondent, as we have noted, the appellant has submitted that the promotion of the first respondent as JDTP on 11 August 2011 was under a circular dated 27 October 2008 which has been struck down by the Bombay High Court. The High Court in dealing with this submission has held that the order of promotion, when it was issued on 11 August 2011 had an imprint of legality. Moreover, even the appellant adopted the position that since promotion was given to the first respondent in terms of the Government Circular dated 27 October 2008, he believed that he had no reason to object to the seniority list of JDTP published on 28 August 2014. That apart, the High Court has noted that after the promotion of the first respondent on 11 August 2011, the appellant was promoted on 2 July 2013 and it was only when the second seniority list was finalized on 15 January 2016 that the appellant filed an OA in February 2016. In the meantime, the appellant had worked as JDTP for a period of nearly five years. In declining to allow the issue of seniority to be challenged at this belated stage, the High Court relied upon the decisions of this Court in Roshan Lal v International Airport Authority of India40, P Chitharanja Menon v A Balakrishnan41and Amarjeet Singh v Devi Ratan42. 40 (1980) Suppl.SCC 449 41 (1977) 3 SCC 255 H 42 (2010) 1 SCC 417

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RAGHUNATHRAO SHENDE [DR. DHANANJAYA Y. CHANDRACHUD, J.]

79Copy pinpoint79. The delay has, in our view,justifiably weighed with the High A Court. Coupled with this is an equally relevant consideration which must weigh with the court: the appellant has not challenged the appointment of the first respondent as JDTP. Having failed to challenge the appointment, it is now not open to the appellant to assert that the appointment must be treated as void on the ground that the circular on the basis of which the first respondent was promoted has subsequently been set aside in a judgment of the Bombay High Court43.

80Copy pinpoint80. The first respondent has urged that his appointment as JDTP was not challenged by the appellant for the reason that any challenge would have attracted the bar of limitation. Whatever be the reason, the fact remains that the appointment of the first respondent as JDTP has not been assailed in the OA filed before the Tribunal. Consequently, it is not open to the appellant to lay a challenge on the ground that the appointment was based on a circular which was held to be invalid after the appointment was made. The submission that the appointment is fortuitous within the meaning of Rule 3(f) is but another modality of seeking to deprive the first respondent of the consequence of his appointment and to his consequential seniority.

81Copy pinpoint81. Rule 3 of the Directorate of Town Planning and Valuation (Recruitment) Rules 2011 provides as follows: “3. Appointment to the post of the Director of Town Planning, E Group-A shall be made by promotion of a suitable person on the basis of strict selection with due regard to seniority, from amongst the persons holding the post of Joint Director of Town Planning in the Directorate, having not less than three years regular service in that post.” F The fact that the vacancy occurred on 30 April 2016, on the retirement of the then DTP has not been disputed in the course of the submissions of the appellant. On the date when the vacancy occurred, the appellant clearly did not fulfill the eligibility criterion of three years’ experience as JDTP. The appellant who was promoted on 2 July 2013 G did not fulfill the criterion prescribed by Rule 3. The contention urged by Mr Patwalia that the tenure served by the appellant in the posts of DDTP and JDTP must be coupled together for the purpose of determining

43 Mahasangh, (2013) 5 Mh LJ 640 H

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A eligibility cannot be accepted as Rule 3 clearly stipulates that an eligible JDTP must have three years of regular service in that post.

82Copy pinpoint82. In R Prabha Devi v Union of India44, a two Judge Bench of this Court formulated the principle in the following terms: “The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. … Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor can override it in the matter of promotion to the next higher post.” Seniority and eligibility are distinct concepts in service jurisprudence. Seniority by itself cannot prevail where a senior lacks eligibility for promotion to a higher post [See in this context Palure Bhaskar Rao v P Ramaseshaiah45]. Even if the contention of the appellant on the applicability of the catch-up rule were to be accepted, that will not obviate the requirement of his fulfilling the condition of eligibility for promotion to the next higher post, on the date when the vacancy occurred.

83Copy pinpoint83. The appellant failed to challenge the appointment of the first respondent as JDTP on 11 August 2011. The appellant failed to challenge the circular dated 20 March 2003 providing for consequential seniority. The substratum of the challenge which has been developed before this G Court is without basis in the pleadings. The ingenuity and industry of the learned counsel who appeared on behalf of the appellant cannot, in the ultimate analysis, be a substitute for a deficient pleading. 44 (1988) 2 SCC 233 45 (2017) 5 SCC 783 H

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RAGHUNATHRAO SHENDE [DR. DHANANJAYA Y. CHANDRACHUD, J.]

84Copy pinpoint84. A submission was sought to be advanced on the basis of the A principle that an appointment made contrary to the rules is merely fortuitous and does not confer the benefit of seniority on the appointee over and above the regular/substantive appointees to the service (Sanjay K Sinha-II v State of Bihar)46. The same principle was emphasized in Bhupendra Nath Hazarika v State of Assam47: B “..when the infrastructure is founded on total illegal edifice, the endeavor to put forth a claim for counting the previous service to build a pyramid is bound to founder.” [See also PV George v State of Kerala48 and BA Linga Reddy v Karnataka State Transport Authority49(relied upon to buttress the submission that the power of the High Court to strike down cannot be exercised prospectively)].

85Copy pinpoint85. The answer to the submissions is simple: the appellant did not at any stage challenge the appointment of the respondent to the post of JDTP nor did he challenge the GR dated 20 March 2003 providing for consequential seniority. The appellant was not eligible for the post of DTP on 30 April 2016, when the vacancy occurred. He cannot, hence, challenge the appointment of the first respondent.

86Copy pinpoint86. For the above reasons, we have come to the conclusion that there is no substance in the appeals. The judgment of the High Court does not call for any interference, though for the reasons which we have indicated. The Civil Appeals shall stand dismissed. There shall be no order as to costs. CIVIL APPEAL Nos 2471-2473 OF 2019 F @ SPECIAL LEAVE PETITION (CIVIL) Nos. 14041-14043 OF 2018

87Copy pinpoint87. In view of the judgment in Civil Appeals @ Special Leave Petition(C) Nos 8769-8771 of 2018 rendered today, these appeals are G also dismissed with no order as to costs.

46 (2004) 10 SCC 734 at 742 47 (2013) 2 SCC 516 48 (2007) 3 SCC 557 49 (2015) 4 SCC 515 H

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A MA Nos 2983-2985 OF 2019 @ SPECIAL LEAVE PETITION (CIVIL) Nos.33086-33088 OF 2017

88Copy pinpoint88. In view of the judgment in Civil Appeals @ Special Leave Petition (C) Nos 8769-8771 of 2018 rendered today, these MAs are B disposed of, in terms of the judgment and order in the lead appeals.

Divya Pandey Appeals dismissed.