Prashant Babulal Gaikwad & Ors. vs The State Of Maharashtra & Ors.

( PER : R.G. AVACHAT, J.)

. Rule. Rule is made returnable forthwith. Heard finally, with consent of the parties.

This group of five Petitions is taken up together for hearing and decision since, the challenge therein is to the common Judgment and Order dated 10.07.2025 passed by Maharashtra Administrative Tribunal (hereinafter for the sake of brevity referred to as ‘M.A.T.’), Bench at Aurangabad in Original Applications No.1304 of 2024 and 1254 of 2024.

The Respondent/State issued an Advertisement dated 15.02.2016 (Advertisement No.01/2016) for filing up 1256 posts of Junior Engineer (Civil) (Group-B) (Non-Gazetted) on the Establishment of ‘The Water Conservation Department of the State of Maharashtra’. The number of vacancies were reduced to 1202. The recruitment process culminated in preparing a select list of 1202 candidates and waiting list as well. An order of appointment to the candidates in the select list was issued on 25.01.2017. Only 1020 of 1202 selected candidates, joined. 182 posts remained vacant. An order of appointment to 142 candidates in the waiting list was issued on 23.11.2017. Again, on 24.01.2018, another order of appointment was issued for 25 more candidates in the wait list.

The provisional Gradation/Seniority list was prepared and published vide Circular dated 20.09.2023. On hearing objections thereto, a final Gradation/Seniority list was published on 16.04.2024. The Respondent Nos. 3 to 18 herein challenged the said final Seniority/ Gradation list by filing two Original Applications No. 1304 of 2024 and 1254 of 2024 before the M.A.T. The M.A.T. allowed the original applications. The petitioners are therefore before us in these Writ Petitions.

Learned Advocate Mr. Ajay Deshpande appearing for the petitioners in Writ Petition No.10268 of 2025 would submit that, these petitioners were not made parties to the Original Applications before the M.A.T. The Respondent/State too did object to the applications on the ground that the applications were bad for non-impleading the necessary parties. The learned Advocate appearing for the Applicants in Original Application No. 1304 of 2024 assured the M.A.T to take corrective measures, by the next date of the matter. Petitioners herein had moved an application seeking intervention in the Original Applications. The said application was kept pending and even no order was passed thereon, till the original application was decided on merits. The Learned Presiding Officers of the M.A.T., on hearing learned Advocate for the Original Applicants, had expressed disinclination to allow the Original Applications. One of the petitioners herein was consistently present during the hearing of the Original Applications. He has filed an affidavit to that effect in these Writ Petitions. Since the M.A.T. had expressed a view on the merits of the matter, the petitioners herein, did not press for orders on their applications for intervention. To the utter surprise of the petitioners, the M.A.T. changed it’s view and allowed the Original Applications. According to the learned Advocate, while the Presiding Officers of the M.A.T. had decided to change their view, the petitioners herein who were going to be prejudicially affected by the changed view, ought to have been given full opportunity of hearing. According to learned Advocate, in the given circumstances, the Intervention Application ought to have first been allowed. According to him, the petitioners to be on the safer side filed their written notes of arguments in the matter. According to learned Advocate, hearing a person as a party to the proceedings is quite different than entertaining the said party as an Intervenor and deciding the matter by simply giving the said Intervenor, an opportunity to submit the written notes of arguments. The petitioners thus, lost opportunity to submit pleadings in the matter and counter the case of the original applicants.

Turning to the merits of the matter, the learned Advocate for the petitioners would submit that, the merit based selection is an essential concomitant of rule of law. The one who scores more marks must find place above those who secured lesser marks, subject to vertical and horizontal reservations. According to him as on the date of decision/order impugned herein, the ‘Maharashtra Civil Services (Regulation of Seniority) Rules, 2021’ were holding the field. These rules superseded the Seniority Rules of 1982 i.e. Maharashtra Civil Services (Regulation of Seniority) Rules, 1982. The M.A.T. therefore ought to have considered the Seniority Rules of 2021, for deciding the original applications.

Learned Advocate would further submit that the petitioners were from the select list. Their appointments order was issued on 25.01.2017. The respondents herein ( Respondents No.3 to 18) were from the wait list. The applicants in Original Applications had even not completed 8 years of service for being considered for the next promotional avenue. There was therefore, no cause for the applicants therein to prefer original applications. Hearing and deciding the Original Applications was therefore, nothing but an academic exercise which should not have been undertaken unless, there is someone to have in fact been affected.

According to learned Advocate, the petitioners herein had relied on the judgment of a Division Bench of M.A.T. ( Principal Seat) in case of Abhijeet Jotiram Talvekar and Others vs. The State of Maharashtra and Others in Original Application No. 862 of 2016. The M.A.T did not refer thereto. Since, it was a decision rendered by a Co-ordinate Bench, the same was binding on the Division Bench of the M.A.T. which passed the order impugned herein.

According to learned Advocate, had the M.A.T. considered the said decision, it would have referred the matter for decision by a larger bench or it could have followed a decision in Abhijeet Talvekar (supra) case. In such circumstances, the decision of the original applications would have been different, than the one impugned herein. According to learned Advocate, the Respondent/State had issued a Government Resolution dated 28.05.2018 specifically informing that the candidates appointed from the wait list should not be given march over and above the candidates appointed from the select list. The said G.R was not under challenge in the original applications. The judgments in the case of Hitendra Vishnu Thakur vs. The State of Maharashtra and Others reported in 1994 (4) SCC 602 and R. Ranjith Singh vs. The State of Tamil Nadu and others reported in SLP (C) No. 20061 of 2022 could have been distinguished on facts. The M.A.T. ought not to have relied on those judgments. According to learned Advocate, selected candidates and wait listed candidates form a distinct and separate class by themselves. Both category candidates cannot be clubbed for the purpose of seniority. Moreso, when there was a long time gap between issuance of orders of appointment to the candidates in the select list and those in the wait list. The M.A.T. ignored the State Government’s policy of reservations i.e. vertical and horizontal reservation as well. The learned Advocate, in the first instance, urged for setting aside the order impugned herein. He then, in the alternative submitted for remanding the matter back to the M.A.T for decision afresh, after giving the petitioners a full opportunity of hearing. In support of his submissions, the learned Advocate relies on the following authorities :

Learned Advocate Mr. Yashodeep Deshmukh appearing for the petitioners in Writ Petition No. 10274 of 2025 reiterated the submissions advanced by learned Advocate Mr. Ajay Deshpande. He would further submit that the original application was bad in law in as much as all the employees likely to be affected by the decision of the M.A.T. were not made parties thereto. He would further submit that two private respondents were none other than the wives of the Applicants. It was therefore, nothing but a shadow contest. Moreover, it was nothing short of a fraud on the M.A.T. Since, wives of the Applicants, to save institutions of marriage, bound to not seriously contest the claims made by their husbands. Turning to the merits of the case, learned Advocate would submit that the Original Applicants, could not be given march over the candidates appointed pursuant to the select list. The candidates in the wait list did not have any right to seek an appointment. The appointment of wait listed candidates in place of those who could not join was fortuitous. In support of his submissions, he relied on the following host of Authorities :

Learned A.G.P representing the State for respondents in Writ Petitions Nos. 10268 of 2025, 10274 of 2025,10279 of 2025 and 12842 of 2025 also toed the line of arguments of learned Advocate representing the petitioners in Writ Petition No.12583 of 2025. He mainly relied on the judgment in the case of Harish Manganlal Baijal vs. State of Maharashtra and Others reported in (2010) 6 SCC 585, to submit that selection and appointment of the concerned respondents was under fortuitous circumstances since, the candidates in the select list did not join for one or the other reasons.

Learned Advocate Mr. Karlekar appearing for the petitioners in Writ Petition No. 10279 of 2025 made submissions consistent with the submissions referred hereinabove. He relied on the judgment of the Apex Court in the case of Amarjeet Singh and Others vs. Devi Ratan and others reported in (2010) 1 SCC 417. He first took us through the Seniority Rules, 1982 with a view to interpret them in the letter and spirit. According to him, the candidates in the select list constitute one batch. Subsequent appointments of candidates from the wait list would necessarily be a case of different batch/es.

Learned Advocate Mr. Mahesh Deshmukh in Writ Petition No.12842 of 2025 reiterated the arguments/submissions referred hereinabove.

Mr. Katneshwarkar, learned Senior Advocate appearing for the respondents would on the other hand submit that Clause 14 (B) of the advertisement clearly spells that selected and appointed candidates would get their inter se seniority in terms of their rankings in the select list. He would further submit that the government did not have any authority to change the rules of the game once the recruitment process commenced. According to him, the rights of the respondents are protected under Articles 14 and 16 of the Constitution of India. Texts of both these Articles were heavily relied upon. According to learned Advocate, there is no reservation in promotion. Promotion is based on the seniority list. The seniority list is based purely on the merit. Learned Senior Advocate adverted our attention to Rule 4 (2) of Seniority Rules, 1982. According to him, it has been specifically stated in the rule that, on any post or on any cadre, if the candidate is selected for appointment from one batch, he is entitled to be appointed within 30 days and the seniority list shall be prepared on the basis thereof. Seniority inter se direct recruits selected in one batch for appointment to one post, cadre or services shall be determined according to their ranks in the order of preferences arranged by the Commission/Selection Board. Relying on the Constitution Bench Judgment in the case of Tej Prakash Pathak and Ors. vs. Rajasthan High Court and Ors. in Civil Appeal No. 2634 of 2013 with connected matters, he would submit that recruitment process shall be deemed to have commenced with a notification, followed by an advertisement and it concludes with filling up of notified vacancies. The selected candidate is entitled to appointment according to the merit and reservation. Appointments are made. If post remains vacant then those from the waiting list-who are of the same recruitment process are appointed. Reference is made to the judgment of the Apex Court in the case of R.K. Sabharwal and Others vs. State of Punjab and Others reported in (1995) 2 SCC 745. According to learned Senior Advocate, the notified vacancies were 1202 in number. The recruitment process commenced with the advertisement dated 15.02.2016 (No.01/2016), could only be deemed to have been over/concluded only on appointments of the number of vacancies advertised. The appointments made were either to be from the select list or wait list. Ultimately, all those who find place in select or wait list were all equal. When it comes to the preparation of seniority list, there is no reservation in promotion. A common seniority list therefore, must be prepared which must be based on rank. Rank means merit. Any other method would be violative of Articles 14 and 16 of the Constitution of India. According to learned Senior Advocate, the waiting list is an integral part of select list. The selection is based on merits of the candidates. According to him, the Apex Court has an occasion to consider the term ‘Batch’ in the case of A.Raghu Son of Rajesh vs. Govt. of Andhra Pradesh and others reported in 2015 AIR (SC) (Supp.) 873. According to him, whether select list is prepared in one batch or in two, the answer is ‘No’ since, there was one advertisement, to which the petitioners and initially appointed candidates appeared. Paragraphs Nos. 14 and 16 of the judgment in the case of A.Raghu (supra) were adverted to for interpreting the select list and wait list. The learned Senior Advocate proposed to rely on M.P.S.C. circular dated 31.05.2016. It speaks of life of waiting list to be for one year. The waiting list is not prepared as a separate list but as a part of merit list itself, which is used as waiting list whenever there is non-availability of posts : Relevant portion reads thus :

Learned Senior Advocate relied on following Authorities :

The learned Senior Advocate Mr. Sapkal appearing for respondents No.17 and 18 in Writ Petition No. 10268 of 2025 would submit that it is not a case that the petitioners have not at all been given an opportunity of hearing. According to him, the question is whether the petitioners did not have a reasonable opportunity of hearing. He adverted our attention to the written notes of arguments submitted by the petitioners before the M.A.T. It has also been titled as “Affidavit in Reply”. Then he adverted our attention to the orders impugned herein. The M.A.T has duly considered the case of the petitioners. The learned Senior Advocate relied on the judgment of the Apex Court in the case of State of Orissa vs. M/s. Krishna Stores reported in AIR 1997 SC 871. Then he relied on the judgment in the case of V.P. Shrivastava and Others vs. State of M.P and Others reported in (1996) 7 SCC 759 to submit that, principle of determination of seniority was in issue before the M.A.T and the State Government/department was very much there to defend it’s case to submit that the petitioners were not necessary parties. Paragraph No. 14 of V.P. Shrivastava and Others (supra) was adverted to. The learned Senior Advocate then relied on the judgment in the case of Ajay Kumar Shukla and Others vs. Arvind Rai and Others reported in (2022) 12 SCC 579. Paragraphs No. 21,23,30,40,44,45,51 and 52 were specifically adverted to. It was a case of issue of seniority of candidates selected through one and the same selection process. Even appointment orders were issued at one and the same time. For one or the other reasons, viz. Court’s intervention, some of them got the postings late. It was a case of appointment to the posts of Junior Engineer in three streams. It was a feeder cadre for the promotional post of Assistant Engineer. . The learned Senior Advocate then relied on the judgment in the case of A. Raghu (supra) to submit that, the candidates selected in furtherance of one and the same notification would constitute one batch although posting might have been given to them on different dates. He then relied on the judgment in the case of Manoj Parihar and Others vs. State of Jammu and Kashmir and Others reported in (2022) 14 SCC 72.

The learned Senior Advocate adverted our attention to Clause 14 (B) in the advertisement and then our attention was drawn to Clause ‘ fuoM izfdz;k o fu;qDrh ’ appearing in the advertisement. It was also submitted that in the appointment order dated 25.01.2017, it was specifically stated that the seniority of all the appointed candidates would be considered in terms of The Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 (in short M.C.S.R. Rules,1982). According to the learned Senior Advocate, it was a provisional gradation list. After publication of the select list, some of the selected candidates did not appear for verification of documents and some did not have pre-requisite documents and some in spite of finding a place in the select list, did not join. The selection committee therefore, took a decision to issue appointment orders to the Original Applicants. Learned Senior Advocate adverted our attention to the marks of some of the candidates in the select list and wait list as well, to submit that, the candidates in the wait list did secure marks more than some of the candidates in the select list. According to him, the final seniority list was to be prepared on the basis of the merit and merit alone. He also adverted our attention to the minutes of the meeting dated 15.07.2017 wherein it has been observed that 83 candidates did not appear for verification of documents. 61 candidates did not join in spite of appointment order to have been issued etc. The learned Senior Advocate supported the order impugned herein and ultimately submitted for dismissal of the Writ Petitions.

We have considered the submissions advanced. Perused the documents and authorities relied on. A short question which falls for consideration in these Writ Petitions is as to whether the candidates appointed from the wait list could not be given seniority over and above the candidates appointed from the select list.

An advertisement (No.01/2016) was published on 15.02.2016 for filling up 1256 posts of Junior Engineer (Civil) Group-B (Non-Gazetted).The number of vacancies was reduced to 1202. The Committee headed by the Chief Engineer, Vidharbha Irrigation Development Corporation was constituted to complete the recruitment process. A select list was published. Candidates in the select list were called for verification of their documents. The candidates in the select list were issued with order of appointment on 25.01.2017. 1020 candidates in the select list joined the services. 182 posts remained unfilled. A wait list containing 142 candidates had already been prepared. The selection/recruitment committee with the previous nod of the state government in the concerned department decided to fill up the vacant posts. On 23.11.2017, an order of appointment was issued to 142 candidates. Some of them did not join. Again, on 24.01.2018 appointments order was issued to 25 candidates in the wait list. The further promotional avenue from the feeder cadre of ‘Junior Engineer’ is ‘Assistant Engineer’. The Junior Engineer completing eight years of service, is in the zone of consideration for the next promotional avenue. No seniority list i.e provisional or final was prepared until August 2023. It was only on 20.09.2023, a provisional seniority list was prepared and published. The petitioners herein raised objections thereto. A final gradation list was thereafter published on 16.04.2024. The private respondents in all the Writ Petitions preferred Original Applications No. 1304 of 2024 and 1254 of 2024 challenging the same before the M.A.T.

Since the recruitment and consequential appointment orders did take place from the period 2016 to 2018, seniority/gradation would be governed by ‘The Maharashtra Civil Services (Regulation of Seniority) Rules, 1982’ and not by ‘The Maharashtra Civil Services (Regulation of Seniority) Rules,2021’. Needless to mention that, the rules of 2021 could not be given retrospective effect else rights of the appointees prior thereto would get affected thereby. Reliance on Government Resolution dated 28.05.2018 would also be of little consequence since, the appointments/postings to the petitioners and respondents were given before the said G.R was issued and in none of the appointment orders particularly, dated 23.11.2017 and 24.01.2018 there is mention that their seniority would be considered from the date of their joining the post. The clause No.3 in the G.R. of May 2018 therefore, have no application to the issue at hand.

Before adverting to the further factual matrix, it would be apposite to refer to the relevant M.C.S.R (Regulation of Seniority) Rules, 1982 (in short ‘Seniority Rules, 1982’). Section 3 (c) of the Seniority Rules, 1982 defines the term “Continuous Service” mean ‘in relation to any post, cadre or service means service continuously rendered by a person in that post, cadre or service or in any higher post, cadre or service without interruption by way of reversion to a lower post,cadre or service’. Rule 4 speaks of ‘General principles of seniority’ which reads thus :

. The terminology of rule 4 admits of not more than one interpretation. The general proposition is that seniority of a government servant shall ordinarily be determined on the length of his continuous service therein, meaning thereby the date of joining the service is important one. Sub-rule 2 has overriding effect.

The issue involved in these Writ Petitions is as to inter se seniority of direct recruits. The issue therefore, would be governed by rule 4 (2) (a) of Seniority Rules, 1982.

True, in terms of clause 14 (b) in the advertisement, merit of the candidate in the select list would govern his/her Serial No. in the gradation list. In case the rules governing the field are inconsistent with clause 14(b), the rules would prevail. After giving due regard to policy of vertical and horizontal reservations, the select list was prepared. Admittedly, all the private petitioners herein are from the select list. They were given appointment order on 25.01.2017. Since, some of the candidates in the select list did not join or found to be not eligible in view of, having not possessing requisite documents, did not join. As a result, a few vacancies remained unfilled. Eight months after the petitioners and others in the select list joined the postings, a decision was taken to fill up vacant posts by issuing appointment orders to the candidates in the wait list. The said appointment orders thus, came to be issued on 23.11.2017 and the next one on 24.01.2018. The question is whether all the candidates appointed pursuant to the recruitment process initiated vide Notification dated 15.02.2016 (Advertisement No.01/2016), would constitute one batch, as the terminology of clause (a) of rule 4(2) of Seniority Rules, 1982 suggests.

Admittedly, the names in the select list were arranged in terms of the merits of the respective candidates, necessarily on following vertical and horizontal reservations. In our view, had all the candidates in the select list joined the posts, there was no question of even the private respondents dreaming of getting appointments. It is only because a few in the select list did not join and/or some other did not have requisite documents, the posts remained unfilled. The recruiting authority even could have been content with issuing the orders of appointment in the select list alone. Luck smiled on the candidates in the wait list only when the state government decided to fill up the vacant/unfilled posts from the candidates in the wait list. Three Judge Bench of the Apex Court in case of Gujarat State Dy. Executive Engineers Association (supra) observed thus :

In case of Pawan Pratap Singh and Others (supra) it has been observed as follows :

No retrospective seniority can be granted when an employee has not even been born in the cadre so as to adversely affects the direct recruits validly appointed as stated in the case of Uttaranchal Forest Rangers Assn. (Direct Recruit) And Others (supra).

With all respect at our commands, we are of the view that the Judgment of the Constitution Bench in case of Tej Prakash Pathak and Ors. (supra) is not applicable to the case in hand. Although it has been held therein that recruitment process commences from the issuance of the advertisement, calling for applications and ends with the filling of notified vacancies. Clause 13 reads thus :

. The issue in case of Tej Prakash Pathak and Ors. (supra) was as to whether the rules of the game (process of selection and appointment) could be changed after the recruitment process commences or concluded. It was a case wherein, by a resolution dated 30.11.2004, the Administrative Committee of the High Court resolved to conduct written examination for 75 marks and interview for 25 marks. It was also resolved that the minimum qualifying marks for the OC-20, BC-21, SC-22 and ST-23 candidates shall be as prescribed earlier. Following the High Court's direction, written examination was held on 30.1.2005, and its results were declared on 24.2.2005 wherein 83 candidates were successful. Interviews were held in March 2006. Thereafter, the marks obtained by those 83 candidates were aggregated and a consolidated merit list was prepared in the order of merit on the basis of the aggregate marks. The merit list inter alia contained marks secured in the written examinations out of 100; marks secured in the interview out of 25; and the total marks secured in the written examination and interview out of 125. Based on that list, the Administrative Committee approved the selection of ten candidates as per merit and reservation. However, the Full Court did not agree with the select list prepared. Consequently, the Chief Justice constituted a Committee of Judges for preparing a fresh list. The Committee recommended that in place of 100 marks for the written examination and 25 marks for the interview, the candidates should be evaluated with reference to 75 marks for the written examination and 25 marks for the interview in line with earlier resolution dated 30.11.2004, The Committee also recommended that the minimum pass percentage applied for the written examination to determine the eligibility of the candidates for appearance in the interview should also be applied for interview marks, and those who failed to secure such minimum marks in the interview should be considered as having failed.

. The issue as to whether the candidates appointed from the wait list could be given march over the candidates appointed from the select list was not at all before the Apex Court.

The judgment of the Apex Court in case of A. Raghu Son of Rajesh (supra) is also of little consequence to decide the present Writ Petitions. Since in terms of rule 15 Andhra Pradesh Police (Civil) Subordinate Rules, the inter se seniority of Sub-inspectors shall be fixed on completion of training in the police training college and not at the time of selection in accordance with the list which shall be arranged in the order of merit. It was a case that pursuant to the selection process, candidates were deputed for training in two batches. The Apex Court observed that rule 15 leaves no room for any doubt that the merit position in the select list shall not to be taken into consideration while determining the inter se seniority of candidates selected from a common process of selection. The service of candidates who were selected from a common process of selection was to be determined on the basis of final aggregate marks obtained by them during the course of their training at the police training college (s). This made all the difference. The case of Bimlesh Tanwar (supra) could also be of little assistance to the private respondents herein. Admittedly, the observations in the said judgment are based on factual matrix emerging therein. Seniority of the appointed candidates was to be determined on the basis of their entry in the register maintained by the High Court. Rule 8 and 10 of of the ‘Rules Relating to the Appointment of Subordinate Judges in the Haryana Civil Service (Judicial Branch), 1951 were for consideration in the said matter.

In our view, the candidates in the select list would constitute one batch. The M.A.T heavily relied on the judgment of the Apex Court in Bimlesh Tanwar (supra) to pass the order impugned herein. In view of the M.A.T., it was a single process of recruitment initiated pursuant to the advertisement dated 15.02.2016 (No.01/2016) and therefore, candidates in both select and wait list, would constitute one batch.

At the cost of repetition, it is observed that the private respondents were appointed only because of candidates in the select list either did not join or found to have no requisite documents. As such, the appointments of the candidates in the select list is fortuitous. In our view, the candidates in the select list constitutes one batch. We are relying on the judgment of Apex Court in the case of Gujarat State Dy. Executive Engineers Association (supra). According to us the candidates in the wait list ( private respondents herein) could not be given seniority over and above the candidates in the select list (petitioners).

For these reasons, the order impugned herein is liable to be set aside.

It is true that the petitioners (except in Writ Petition No.12583 of 2025) were not made parties to the Original Applications. Some of the petitioners had appeared before the M.A.T and presented intervention application. An objection was also raised on behalf of the respondents/State on the ground of non-joinder of necessary parties. A submission was made on behalf of the Applicants in Original Applications that a needful would be done (corrective measures would be taken). Nothing however, happened. The intervention application remained pending. The fact is however, that the petitioners had placed on record of the M.A.T. their affidavits in reply cum written arguments. True, it was filed in January 2025. Order impugned herein was passed long thereafter. The fact is however that, all the grounds of objections raised by the intervenors (petitioners) except in Writ Petition No. 12583 of 2025 have been addressed by the M.A.T. It therefore, could not be said to be a case of these petitioners to have not been granted a reasonable opportunity of hearing. So far as regards nor referring to the judgment in the case of Abhijeet Jotiram Talvekar and Others (supra) decided by co-ordinate bench of M.A.T, Mumbai is concerned, since the matter is decided on merits, the said issue is not adverted to in details.

For all the aforesaid reasons, the Writ Petitions succeeds. Hence, the following order :