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Judgment
(PER : NIVEDITA P. MEHTA, J.)
Heard finally with the consent of learned Counsel for the respective parties.
By this petition, the petitioner has challenged the order dated 27.01.2014, whereby respondent No.3 came to be promoted to the post of Deputy Engineer. The petitioner claims to be senior to respondent No.3 in the cadre of Assistant Engineer (II) and contends that he was, therefore, entitled to be considered for promotion in preference to respondent No.3. The petitioner accordingly seeks his promotion to the post of Deputy Engineer with effect from 21.07.2011, along with consequential benefits.
The factual matrix of the present petition, in brief, is that the petitioner and respondent No.3 were appointed as Assistant Engineer (II) in the Maharashtra Housing and Area Development Authority (hereinafter referred to as “MHADA”) pursuant to a common recruitment process in the Special Backward Class (SBC) Category, by appointment orders dated 19.07.2008. The petitioner had already acquired the qualification of B.E. (Civil) and MS-CIT and joined service on 21.07.2008, whereas respondent No.3 joined service on 01.08.2008. The petitioner was confirmed in service upon completion of the prescribed period of probation.
Respondent No.3, though appointed on 19.07.2008, had not acquired the requisite MS-CIT qualification within the period stipulated in his appointment order. He subsequently passed the MS-CIT examination on 26.11.2012. His case regarding continuation and regularisation in service was thereafter considered by the competent authority and, by order dated 01.11.2013, his services were regularised with retrospective effect from 26.11.2012.
In the meanwhile, seniority lists pertaining to the cadre of Assistant Engineer (II) were published from time to time. In the seniority lists prepared up to December 2012, the petitioner was shown above respondent No.3. The petitioner, relying upon the said seniority position and upon completion of the requisite qualifying service, claimed entitlement to promotion to the post of Deputy Engineer. He also raised a grievance with regard to the manner in which the promotional posts in the Special Backward Class (SBC) Category had been filled from time to time.
In this regard, the petitioner has referred to the proceedings of the Departmental Promotion Committee (hereinafter referred to as “DPC”) held on 13.01.2009, wherein the names of Shri A.S. Waste and Shri K.P Meher were recommended for promotion from the SBC diploma-holder category. Pursuant thereto, Shri A.S. Waste came to be promoted to the post of Deputy Engineer by order dated 05.02.2009. Thereafter, in the DPC held on 21.12.2009, two posts in the SBC diploma-holder category were considered, one of which was already occupied by Shri A.S. Waste. It is the case of the petitioner that the name of P.A. Sonawane, a diploma-holder engineer, was thereafter recommended against the remaining promotional post, although, the post ought to have been filled from amongst degree-holder engineers belonging to the SBC Category.
A DPC was convened on 11.11.2013 to consider promotion to the post of Deputy Engineer. The inter se seniority of the petitioner and respondent No.3 was reconsidered during the said process. Respondent No.3 claimed seniority on the basis of his higher rank in the original recruitment process. The Authority accepted the said claim and placed respondent No.3 above the petitioner in seniority. Respondent No.3 was thereafter promoted by the impugned order dated 27.01.2014.
Aggrieved by the said order of promotion and the consequential determination of inter se seniority, the petitioner has approached this Court. Respondent No.4 - P.A. Sonawane was subsequently deleted from the array of parties pursuant to the order dated 16.10.2024 passed by the learned Registrar (Judicial), as he had retired from service.
Mr. A.S. Jaiswal, learned Senior Counsel, assisted by Mr. R.N. Badhe, learned Advocate for the petitioner made the following submissions :-
The petitioner was senior to respondent No.3 in the cadre of Assistant Engineer (II). He submitted that the petitioner joined service on 21.07.2008 and was confirmed with effect from 21.07.2010, whereas respondent No.3 joined service on 01.08.2008.
Learned Senior Counsel submitted that respondent No.3 had not acquired the requisite MS-CIT qualification within the period stipulated in Clause 14 of his appointment order. Though required to pass the examination within two years of appointment, respondent No.3 passed the same only on 26.11.2012. He submitted that, despite the report dated 31.12.2012 of the Nagpur Regional Office recording the said position, no action was taken against respondent No.3.
He submitted that respondent No.3 was thereafter confirmed by order dated 01.11.2013 with retrospective effect from 26.11.2012. According to the learned Senior Counsel, such confirmation could not confer any right of seniority over the petitioner, particularly when the petitioner had already been confirmed and had consistently been shown senior to respondent No.3 in the seniority lists published by the Authority.
Learned Senior Counsel referred to the successive seniority lists and submitted that, as on 31.12.2009, the petitioner was at Serial No.46, whereas respondent No.3 was at Serial No.53, and that the petitioner continued to be placed above respondent No.3 in the subsequent lists. He submitted that respondent No.3 had not objected to the said seniority position within the prescribed period and, therefore, the same could not subsequently be altered to the prejudice of the petitioner.
Learned Senior Counsel submitted that the petitioner had completed three years' service and became eligible for promotion to the post of Deputy Engineer in July 2011. Referring to the Maharashtra Housing and Area Development Authority Deputy Engineers (Recruitment) Rules, 1997, he submitted that the promotional quota included a post for degree-holder engineers and that the petitioner, being a degree-holder belonging to the SBC category, ought to have been considered against the said post.
He further submitted that the manner in which the SBC promotional posts were filled had deprived the petitioner of his opportunity for promotion. Referring to the DPC proceedings dated 13.01.2009 and 21.12.2009, he submitted that Shri A.S. Waste had been promoted against the SBC diploma-holder post and that Shri K.P Meher and Shri P.A. Sonawane were thereafter recommended for promotion. According to the petitioner, Shri P.A. Sonawane, though a diploma-holder, was recommended against a post meant for a degree-holder candidate on the ground that no eligible degree-holder candidate was then available.
Learned Senior Counsel submitted that the petitioner could not have been considered in 2009 as he had not completed his probation at that time. However, upon completion of the requisite service, the post earmarked for a SBC degree-holder ought to have been available for his consideration. Referring to the rosters for the degree-holder and diploma-holder categories, he contended that posts had been filled in excess of those available for the SBC diploma-holder category, thereby affecting the petitioner's claim for promotion.
He submitted that, pursuant to the petitioner's representation dated 15.07.2013, a DPC was convened on 11.11.2013, wherein one post of Deputy Engineer was shown for a degree-holder engineer belonging to the SBC category and both the petitioner and respondent No.3 were eligible for consideration. The petitioner thereafter submitted a further representation dated 22.11.2013 claiming seniority and promotion in preference to respondent No.3.
Learned Senior Counsel submitted that, instead of considering the petitioner on the basis of the earlier seniority lists, the Authority, by its note dated 13.01.2014, placed respondent No.3 above the petitioner on the basis of their marks in the original recruitment process. Respondent No.3 had secured 68.40 marks as against 64.80 marks secured by the petitioner. He submitted that such alteration of seniority was contrary to the seniority position consistently maintained by the Authority.
It was finally submitted that the promotion of respondent No.3 by order dated 27.01.2014, on the basis of the altered seniority position, was illegal and arbitrary. The petitioner, therefore, sought quashing of the said promotion, a declaration that respondent No.3 was not senior to him, and his promotion to the post of Deputy Engineer with effect from 21.07.2011, with consequential benefits.
Mr. C.S. Kaptan, learned Senior Counsel, assisted by Mr. H.N. Verma, learned Advocate for respondent Nos.1 and 2, while opposing the petition made the following submissions :-
The petitioner had no enforceable right to claim promotion to the post of Deputy Engineer in preference to respondent No.3.
Learned Senior Counsel submitted that, although respondent No.3 had not acquired the requisite MS-CIT qualification within the period initially stipulated, he subsequently passed the examination in November 2012 and had a satisfactory service record, with no adverse remarks or complaints. Upon consideration of his service record and the proposal for regularisation, the competent authority extended his probation and thereafter regularised his services.
It was submitted that, in view of the aforesaid regularisation, the petitioner could not contend that respondent No.3 had automatically ceased to be in service merely because he had acquired the requisite qualification beyond the period initially stipulated in the appointment order.
Learned Senior Counsel submitted that inter se seniority in MHADA is governed by the Maharashtra Housing and Area Development Authority Employees (Determination of Seniority) Regulations, 1987. Under Regulation 3(2)(a), the seniority of direct recruits is determined according to the rank assigned by the Selecting Authority. Respondent No.3, having secured 68.40 marks and being ranked first, was therefore rightly placed above the petitioner, who had secured 64.80 marks and was ranked second.
Learned Senior Counsel submitted that the earlier seniority lists relied upon by the petitioner were not in accordance with the applicable Regulations. The competent authority accordingly rectified the seniority position by order dated 24.01.2014, placing respondent No.3 above the petitioner. A revised temporary seniority list was thereafter published on 03.03.2014 inviting objections, but no objection was raised by the petitioner. The final seniority list was published on 30.07.2014.
It was submitted that the petitioner had not disclosed the subsequent correction and finalisation of the seniority list and had relied upon the earlier lists. The petition was, therefore, also opposed on the grounds of suppression, acquiescence, delay and laches.
As regards the promotional roster, learned Senior Counsel submitted that promotion to the post of Deputy Engineer was governed by the Maharashtra Housing and Area Development Authority Deputy Engineers (Recruitment) Rules, 1997. Under Rule 3(a), a degree-holder Assistant Engineer (II) becomes eligible for promotion after three years of continuous service, whereas a diploma-holder requires eight years of service. The petitioner, therefore, had no vested right to challenge promotions made before he became eligible for promotion.
Learned Senior Counsel submitted that the promotion of Shri P.A. Sonawane, a diploma-holder Assistant Engineer appointed in 1983 in the SBC category, was made in 2009 pursuant to the DPC proceedings and having regard to the eligibility and availability of candidates at the relevant time. Since the petitioner was not then eligible for promotion, he could not challenge the said promotion.
Insofar as respondent No.3 was concerned, learned Senior Counsel submitted that his promotion was considered by the DPC in 2013-2014 in accordance with the applicable Seniority Regulations, Recruitment Rules and roster. The DPC proceedings relied upon by the petitioner, according to him, did not establish any illegality either in the operation of the roster or in the promotion of respondent No.3.
Learned Senior Counsel, therefore, submitted that the petitioner had failed to establish any enforceable right to promotion or any violation of the applicable Rules or Regulations. The petition was accordingly liable to be dismissed.
Mr. Firdos Mirza, learned Senior Counsel, assisted by Ms. Isha Thakre, learned Advocate for respondent No.3, while opposing the petition made the following submissions :-
The petitioner's challenge to the promotion of respondent No.3 was founded on an erroneous claim of seniority. Both were direct recruits and respondent No.3 had secured 68.40 marks and was ranked first, whereas the petitioner had secured 64.80 marks and was ranked second. Under Regulation 3 of the Maharashtra Housing and Area Development Authority Employees (Determination of Seniority) Regulations, 1987, respondent No.3 was, therefore, entitled to be placed senior to the petitioner.
Learned Senior Counsel submitted that respondent No.3 was appointed on 19.07.2008 against a vacant post in the SBC category and was required to undergo probation. Though he acquired the MS-CIT qualification only in November 2012, his service during the relevant period was satisfactory. He had also completed a Professional Diploma Course in FoxPro 2.6 for Windows. Having regard to his service record, the competent authority, in exercise of the power under Clause 24 of the appointment order, regularised his services by order dated 01.11.2013.
It was submitted that, upon such regularisation, respondent No.3 and the petitioner were members of the same cadre and their inter se seniority was required to be determined in accordance with the 1987 Regulations. In the DPC held on 11.11.2013, although respondent No.3 was initially shown below the petitioner, he immediately brought to the notice of the Authority his higher rank in the original recruitment process.
Learned Senior Counsel submitted that, by representation dated 12.11.2013, respondent No.3 claimed seniority on the basis of his higher marks and Regulation 3 of the 1987 Regulations. The Authority accepted the said claim and corrected the seniority position in January 2014, placing respondent No.3 above the petitioner. A revised temporary seniority list was thereafter published on 03.03.2014 inviting objections, but the petitioner did not raise any objection thereto.
Learned Senior Counsel submitted that the petitioner had consequently relied upon the earlier seniority position while failing to disclose its subsequent correction in accordance with the applicable Regulations. He submitted that respondent No.3 was rightly treated as senior and considered for promotion to the post of Deputy Engineer, and that the petitioner had no enforceable right to claim promotion in preference to respondent No.3. The petition, therefore, deserved to be dismissed.
We have considered the rival submissions advanced by the learned Senior Counsel for the respective parties and have perused the material placed on record. The controversy which falls for consideration essentially concerns the inter se seniority of the petitioner and respondent No.3 in the cadre of Assistant Engineer (II) and the consequential claim of the petitioner for promotion to the post of Deputy Engineer. The petitioner has also questioned the continuation and subsequent regularisation of respondent No.3 on the ground of his delayed acquisition of the MS-CIT qualification, as also the manner in which the promotional roster was operated.
It is not in dispute that the petitioner and respondent No.3 were selected through the same recruitment process and were appointed as Assistant Engineer (II) in the SBC Category by orders dated 19.07.2008. It is also not in dispute that respondent No.3 had secured 68.40 marks in the recruitment process and was placed first in the order of merit, whereas the petitioner had secured 64.80 marks and was placed second. The petitioner, however, relies upon the fact that he joined service on 21.07.2008, whereas respondent No.3 joined on 01.08.2008, and further relies upon the earlier seniority lists in which he was shown above respondent No.3.
The inter se seniority of the petitioner and respondent No.3 is required to be determined with reference to the Maharashtra Housing and Area Development Authority Employees (Determination of Seniority) Regulations, 1987 (hereinafter, “Regulations, 1987”). Regulation 3(1) provides that the seniority of persons in different cadres shall be determined on the basis of their date of appointment by nomination or promotion in the cadre, as the case may be. Regulation 3(2) deals with cases where the date of appointment by nomination or promotion of persons is the same. In the case of direct recruits, Regulation 3(2)(a) specifically provides that their seniority shall be determined in the order of their ranks given by the Selecting Authority. The relevant regulation 3 of the said Act is reproduced below for reference:
“3.Determination of seniority of employees in different Cadres-1) The seniority of persons in different cadres shall be determined nomination or promotion in the cadre, as the case may be.
2)If the date of appointment by nomination or promotion of persons is the same then-
a)in the case of direct recruits, the seniority shall be determined in the order of their ranks given by the Selecting Authority.
b)in the case of promotees, the seniority shall be determined in the order of their seniority in the cadres from which they are promoted, and
c)in the case of direct recruits viz-a-viz promotees. promotees shall be considered as senior to direct recruits.
3)(a) If a direct recruit, who has been given a higher rank by the selecting authority, joins the Authority service after the direct recruit who has been given a lower rank by the selecting authority but within a period of one month from the date of receipt of the appointment order by him or within such further period as may be permitted in writing by an authority competent in this behalf he shall not lose his seniority in spite of the fact that the date of his joining the service is subsequent to the date of joining of a person who is junior in rank to him. Such a person shall be allotted a deemed date of joining which would be one day earlier than the date of joining of person who is junior in rank to him in the selection list.
b)If for any administrative reasons or for any other reason approved in writing by the authority competent in this behalf a promote senior to a person junior to him in the cadre from which they are promoted is required to join the promotion post after the promotee junior to him has joined, he shall not lose seniority over the junior joining earlier and shall be allotted a deemed date of joining which would be one day earlier than the date of joining of a promotee junior to him.”
The language of Regulation 3(2)(a) is clear. Both the petitioner and respondent No.3 were direct recruits and their appointment orders were issued on the same date, i.e. 19.07.2008. The Selecting Authority had placed respondent No.3 above the petitioner in the order of merit. Consequently, on a plain application of Regulation 3(2)(a), respondent No.3 was senior to the petitioner.
The fact that the petitioner joined service earlier cannot alter the aforesaid position. The date of entry into service may ordinarily constitute a relevant consideration in determining seniority. However, where the applicable service regulations specifically prescribe the manner in which the inter se seniority of direct recruits appointed through the same selection process is to be determined, it is the criterion prescribed under the said Regulations which has to be given effect to. The date of physical joining, by itself, cannot displace the criterion specifically prescribed by the governing service Regulations.
The Hon’ble Supreme Court has reiterated that inter se seniority is governed by the applicable service rules and that the criterion prescribed by the governing rules must prevail. In Pawan Pratap Singh and Others v. Reevan Singh and Others, (2011) 3 SCC 267, the Hon’ble Supreme Court, while setting out the principles governing seniority, recognised that inter se seniority has to be determined in accordance with the service rules, subject to the criterion prescribed therein. The relevant paragraph no. 45 of the said judgment is reproduced as under:
“45.From the above, the legal position with regard to determination of seniority in service can be summarised as follows:
(i)The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii)Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution
(iii)Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv)The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.”
The petitioner has placed considerable reliance upon the seniority lists published from time to time between 2009 and 2012, wherein he was shown above respondent No.3. The existence of such seniority lists is not in dispute. The question, however, is whether such placement can prevail over the specific criterion prescribed under Regulation 3(2)(a).
A seniority list is required to reflect the seniority determined in accordance with the governing service rules. An earlier placement in a seniority list, if found to be inconsistent with the applicable statutory or regulatory provision, cannot, by itself, create an indefeasible right in favour of an employee to retain such position. In the present case, the earlier seniority lists do not alter the fact that the petitioner and respondent No.3 were direct recruits appointed on the same date and that respondent No.3 had been placed higher by the Selecting Authority in the order of merit.
The record further shows that respondent No.3 had raised an objection to his placement below the petitioner and claimed seniority on the basis of his higher merit in the recruitment process. The competent authority considered the said objection and, by order dated 13.01.2014, assigned respondent No.3 seniority above the petitioner. Thereafter, a revised temporary seniority list dated 03.03.2014 was published inviting objections, followed by publication of the final seniority list on 30.07.2014. The petitioner did not raise any objection to the revised seniority position, as is the case of the respondents. The said subsequent conduct cannot be brushed aside. The subsequent publication of the revised and final seniority lists is relevant while considering the conduct of the parties. However, the validity of the seniority assigned to respondent No.3 ultimately rests upon Regulation 3(2)(a) and not merely upon the petitioner's failure, if any, to object to the subsequent seniority position.
The principal objection of the petitioner, however, is that respondent No.3 had not acquired the MS-CIT qualification within the period stipulated in his appointment order and, therefore, could not have continued in service or acquired seniority over the petitioner. The petitioner relies upon Clause 14 of the appointment order and submits that failure to acquire the qualification within the prescribed period attracted termination of the appointment. This contention requires separate consideration.
It is not in dispute that respondent No.3 did not acquire the MS-CIT qualification within the period initially stipulated in his appointment order and that he subsequently passed the examination on 26.11.2012. The record further shows that, notwithstanding the delayed acquisition of the qualification, respondent No.3 continued in service and his case was thereafter considered by the competent authority. His services came to be regularised by order dated 01.11.2013 with effect from 26.11.2012.
The petitioner contends that the consequence stipulated in Clause 14 was automatic termination of the appointment and that the competent authority had no power to overlook such consequence. We are unable to accept that the subsequent continuation and regularisation of respondent No.3 can simply be ignored on the aforesaid premise. The material placed on record does not show that respondent No.3's appointment was terminated upon expiry of the stipulated period or that his continuation thereafter was declared to be without authority by the competent authority.
Clause 24 of the appointment order contemplates consideration of the employee's case for regularisation upon completion of the probationary period and evaluation of his work by the competent authority. The material before us shows that respondent No.3 subsequently acquired the requisite qualification and that his case was thereafter considered by the competent authority, resulting in the order dated 01.11.2013 regularising his services with effect from 26.11.2012.
It is necessary to distinguish between the question whether respondent No.3 could be continued and regularised in service and the separate question of his inter se seniority. The order of regularisation does not, by itself, create seniority. At the same time, in the absence of any order setting aside such regularisation, the petitioner cannot proceed on the assumption that respondent No.3's service stood automatically extinguished upon expiry of the period stipulated for acquiring MS-CIT.
The petitioner has not pointed out any provision in the Regulations, 1987 which provides that delayed acquisition of the MS-CIT qualification, followed by continuation in service and subsequent regularisation by the competent authority, would result in forfeiture of the seniority otherwise determined under Regulation 3(2)(a). Nor has any provision been brought to our notice which permanently disqualifies such an employee from consideration for promotion after the requisite qualification has subsequently been acquired and his services have been regularised.
Respondent No.3's seniority does not flow from the date of his regularisation. It flows from the applicable Seniority Regulations, which, in the case of these two direct recruits appointed on the same date, require their inter se seniority to follow the order of rank assigned by the Selecting Authority. The delayed acquisition of MS-CIT may explain why respondent No.3 was not confirmed at the same point of time as the petitioner; it does not, in the absence of a specific statutory consequence, alter the criterion prescribed under Regulation 3(2)(a).
It is also relevant to note that the petitioner had sought, by way of amendment, a direct challenge to the order dated 01.11.2013 regularising the services of respondent No.3 on the ground of delayed acquisition of MS-CIT. The said amendment was not permitted as it was found to alter the nature of the petition. The said order is not challenged and thus attained finality. In that sense, the petitioner has accepted the regularisation of services of respondent No.3. The present challenge to the promotion of respondent No.3 nevertheless proceeds, in substance, on the same premise that respondent No.3 ought to be treated as having no valid seniority. In the absence of any order setting aside his appointment or regularisation, such premise cannot be accepted.
We now turn to the petitioner's claim for promotion with effect from 21.07.2011. The Maharashtra Housing and Area Development Authority Deputy Engineers (Recruitment) Rules, 1997 prescribe the qualifying service for promotion to the post of Deputy Engineer. A Degree-holder Assistant Engineer (II) becomes eligible for consideration for promotion upon completion of three years' continuous service. The petitioner relies upon completion of the requisite service and claims that he was, therefore, entitled to promotion with effect from 21.07.2011.
It is also necessary to bear in mind that mere eligibility for promotion does not confer an indefeasible right to promotion. An employee has a right to be considered for promotion in accordance with the applicable service rules. The Hon’ble Supreme Court in Dhole Govind Sahabrao and others v. Union of India and others, (2015) 6 SCC 727, has reiterated that an employee has no right to promotion as such, but only a right to be considered for promotion in accordance with the governing rules. The determination of seniority and the consequential consideration for promotion must, therefore, necessarily be examined with reference to the rules applicable to the cadre.
In the present case, therefore, the petitioner's completion of the requisite period of service by itself does not confer upon him a vested right to promotion with effect from the date claimed. His claim would necessarily depend upon his position in the seniority list and his eligibility for consideration in accordance with the applicable Recruitment Rules. Once respondent No.3 was found to be senior to the petitioner in accordance with the governing Seniority Regulations, the petitioner's claim for promotion from an earlier date cannot be sustained merely on the basis of his having completed the prescribed qualifying service.
The material placed before us does not establish that, after applying the applicable Recruitment Rules and reservation roster, a particular Degree-holder SBC post was available to the petitioner alone and was unlawfully diverted in favour of respondent No.3. A general assertion regarding erroneous operation of the roster, without demonstrating the precise roster position and the corresponding illegality in the particular promotion under challenge, cannot furnish a sufficient basis for setting aside the promotion granted by the competent authority. The petitioner, however, has not placed before us material sufficient to demonstrate that the promotion of respondent No.3 by order dated 27.01.2014 was made against a post which, under the applicable Recruitment Rules and roster, could only be filled by a Degree-holder Assistant Engineer (II) belonging to the SBC Category and against which respondent No.3 was otherwise ineligible.
The reliance placed by the petitioner upon the promotions made in the year 2009 also does not advance his case. At the relevant point of time, the petitioner had not completed the qualifying service required for promotion to the post of Deputy Engineer. More importantly, the validity of the promotion of respondent No.3 in the year 2014 has to be examined with reference to the seniority, eligibility and roster position applicable to the DPC which considered his case. The earlier promotional history, by itself, cannot confer upon the petitioner a right to retrospective promotion with effect from 21.07.2011.
The petitioner has also relied upon his earlier confirmation with effect from 21.07.2010. Confirmation, however, is not an independent source of inter se seniority where the applicable Seniority Regulations prescribe a different criterion. In the present case, Regulation 3(2)(a) prescribes the order of rank assigned by the Selecting Authority as the criterion for determining the seniority of direct recruits appointed on the same date. The earlier confirmation of the petitioner, therefore, cannot override the said statutory criterion.
The subsequent revised seniority list and the final seniority list are also relevant in this context. We do not rest our conclusion merely upon the petitioner's alleged failure to object to the said lists, since the validity of the seniority position has to be tested with reference to the governing Regulation. Having found that respondent No.3 was senior to the petitioner under Regulation 3(2)(a), the subsequent seniority lists merely reflect the position which the Authority had determined in accordance with the governing rule.
The Court exercising jurisdiction under Article 226 of the Constitution of India would certainly interfere with a promotion if it is shown to have been made contrary to the governing statutory rules, on an erroneous seniority position or in breach of the applicable Recruitment Rules or reservation provisions. The mere fact that a promotion has already been granted pursuant to consideration by a DPC is not, by itself, a ground to decline interference. In the present case, however, the foundation of the petitioner's challenge, namely, that he was senior to respondent No.3, has not been established, and no independent illegality in the promotion of respondent No.3 has been demonstrated.
The position that emerges is thus clear. The petitioner and respondent No.3 were direct recruits appointed on the same date. Respondent No.3 had secured a higher rank in the common recruitment process. Regulation 3(2)(a) specifically prescribes that, in such a case, inter se seniority shall follow the order of rank assigned by the Selecting Authority. The earlier seniority lists showing the petitioner above respondent No.3 cannot override the said provision. The delayed acquisition of MS-CIT, though relevant to the timing of respondent No.3's confirmation, has not been shown to result in forfeiture of seniority or permanent ineligibility for promotion, particularly after the competent authority continued and subsequently regularised his services. The petitioner's claim for promotion from 21.07.2011, therefore, cannot be sustained.
We are, therefore, unable to accept the contention that the petitioner was entitled to be promoted as Deputy Engineer in preference to respondent No.3. The petitioner has also failed to establish that the promotion granted to respondent No.3 by order dated 27.01.2014 was contrary to the applicable Seniority Regulations, Recruitment Rules or reservation roster.
For the reasons stated hereinabove, the petitioner has failed to establish any legal right to be placed above respondent No.3 in the seniority of Assistant Engineer (II) or to claim promotion as Deputy Engineer with effect from 21.07.2011. The challenge to the promotion of respondent No.3, as also the claim for consequential benefits, therefore, cannot be accepted.
The writ petition is, accordingly, dismissed. Rule stands discharged. The parties shall bear their own costs.