Hemantkumar Vasantrao Pawar vs Union Of India & Ors.

Rajiv Sahai Endlaw, J

This petition, under Article 226 of the Constitution of India, impugns the order dated 12t h March, 2021 of Central Administrative Tribunal (CAT),

Principal Bench, New Delhi, of dismissal of O.A. No. 564/2021 preferred by the petitioner.

The petitioner, along with the petition, has filed 54 documents as Annexures thereto and has hidden the impugned order as Annexure 51. The same

leads to a lot of delay in, while reading the file, locating the impugned order. The counsel for the petitioner is requested to, in future file the impugned

order preferably as the first Annexure or at best as the last Annexure.

The counsels for respondent no.1 Union of India (UOI), respondent no.2 Union Public Service Commission (UPSC) and respondents no.4 & 5

Government of Maharashtra appear on advance notice and considering the nature of the controversy, we have, with the consent of the counsels,

proceeded to hear the counsels finally at this stage itself.

The petitioner, on appearing in the Maharashtra Public Service Commission examination, on 16t h June, 1987 was selected in the Scheduled Tribe

(ST) Category.

The caste certificate of the petitioner, on the basis whereof the petitioner was selected in the ST Category, was however cancelled and the said

cancellation was affirmed in an appeal preferred by the petitioner. The petitioner filed W.P. (C) No.4055/1988 in the High Court of Bombay and in

which petition, vide interim order dated 13t h September, 1988, the Government of Maharashtra was directed to appoint the petitioner to the post of

Deputy Collector anywhere in the State of Maharashtra, clarifying that the said interim appointment was subject to the result of the petition.

The respondent no.4 Government of Maharashtra, during the pendency of the petition aforesaid, vide Resolution dated 15th June, 1995, took a

decision that wherever the caste certificates of the candidates appointed/selected to the vacancies against the ST Categories were cancelled, the said

candidates would be accommodated under the Special Backward Category, and a reservation of 2 % was created for the said purpose.

The writ petition aforesaid preferred by the petitioner, was finally dismissed, vide order dated 4t h November, 2003, not finding any mistake or fault

in the order of cancellation of the ST certificate of the petitioner. However since the petitioner, during the hearing of the said writ petition claimed that

as per his School Leaving Certificate, though did not belong to the ST Category, belonged to another backward caste within the meaning of Special

Backward Category for which 2% reservation had been created as aforesaid, it was observed that if the petitioner was entitled to any benefits on the

basis of the caste to which he claimed to belong, the petitioner shall be entitled to approach the State of Maharashtra for necessary relief in that

respect.

On dismissal as aforesaid of the writ petition preferred by the petitioner, the petitioner was extended the benefits under the Resolution dated 15t h

June, 1995 aforesaid of the Government of Maharashtra.

The petitioner, in the year 2000, was promoted as the Additional Collector and became eligible for consideration for promotion to Indian

Administrative Service (IAS) of the Maharashtra cadre; the name of the petitioner was also included in the list prepared of eligible officers for the

said purpose.

However pursuant to the dicta of the Supreme Court in Chairman and Managing Director, Food Corporation of India Vs. Jagdish Balaram Bahira

(2017) 8 SCC 670, holding that where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated

caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such

an individual cannot be protected by taking recourse to administrative circulars or resolutions, the Government of Maharashtra, on 21st December,

2019 took a policy decision and on 27t h January, 2020 passed a General Order for creating supernumerary posts for such officers, to whom benefits

as aforesaid of 2% reservation had earlier been given in pursuance to the Resolution dated 15t h June, 1995 aforesaid.

The petitioner filed O.A. No.125/2020 before the Maharashtra Administrative Tribunal (State Administrative Tribunal), Nagpur Bench, challenging

the order dated 27t h January, 2020 and vide order dated 24t h February, 2020 in the said O.A. No.125/2020, the operation of the order dated 27t h

January, 2020, as far as it concerned the petitioner, was stayed. The said O.A. is stated to be still pending consideration.

The Government of Maharashtra, in pursuance to the order dated 27t h January, 2020 aforesaid, vide letter dated 27t h February, 2020 to UPSC,

informed UPSC of the policy decision dated 21st December, 2019 and the order dated 27th January, 2020 supra and of posting of the petitioner

against a supernumerary vacancy; axiomatically, the Government of Maharashtra, replaced the name of the petitioner with another officer in the list of

eligible officers, for promotion to IAS.

Aggrieved therefrom, the O.A., from which this petition arises, was filed, claiming the following reliefs:

“(a) Call for Record and Proceedings of file pertaining to Select List 2018 (for promotion of 25 SCS members to IAS cadre of

Maharashtra) from Respondents.

(b) Issue appropriate direction or order to Respondents thereby holding that

(i) Maharashtra State Government's proposal dated 27.2.2020;

(ii) UPSC Selection Committee's meeting dated 7.8.2020;

(iii) UPSC's final Select List dated 1.9.2020 under Regulation 7(2) [published by DoPT Notification dated 3.9.2020, which is reproduced by

GAD SoM notification dated 4.9.2020];

(iv) DoPT's Appointment Notification dated 3.9.2020 under Rule 8(1) r/w Regulation 9(1).

To the extent of exclusion of Hemantkumar Vasantrao Pawar (seniority w.e.f. 15.6.1995) is bad in law and unconstitutional.

(c) Issue appropriate direction or order to respondents thereby directing that

(i) revise State Government's proposal dated 27.2.2020 (including Annexure-3.1) thereby showing Hemantkumar Vasantrao Pawar at

Sr.No.4 (below Uday Anantrao Jadhav & above Vijaykumar Pandharinath Phad) correctly considering his seniority w.e.f. 15.6.1995;

(ii) re-conduct UPSC Selection Committee's meeting as per Regulation 5(5) [with reference to Selection Committee's Meeting dated

7.8.2020] for Select List, 2018 for Maharashtra thereby considering Hemantkumar Vasantrao Pawar at Sr.No.4 (seniority w.e.f. 15.6.1995)

for the purpose of selection of SCS officers to IAS cadre of Maharashtra;

(iii) direct UPSC to modify final Select List published u/R.7( 1) dated 1.9.2020, thereby including Hemantkumar Vasantrao Pawar at

Sr.No.3 (seniority w.e.f. 15.6.1995) in Select List 2018 for the purpose of selection of SCS officers to IAS cadre of Maharashtra;

(iv) direct DoPT, UOI to modify appointment notification dated 3.9.2020 under Rule 8(1) r/w Regulation 9{1) thereby including

Hemantkumar Vasantrao Pawar at Sr.No.3 (seniority w.e.f. 15.6.1995) in Select List 2018 for the purpose of selection of SCS officers to

IAS cadre of Maharashtra;

(v) direct State Government of Maharashtra to appoint Hemantkumar Vasantrao Pawar to IAS cadre of Maharashtra, on the basis of

inclusion of his name in Select List of 2018 not later than his immediate junior appointed to IAS on the basis of Select List-20 18;

(d) Award cost of the present proceedings to petitioners from respondent.

(e) Pass any other appropriate orders.â€​

CAT, vide the impugned order, has dismissed the aforesaid O.A. of the petitioner, reasoning that no serious flaw could be found on the part of the

Government of Maharashtra, in forwarding the name of another candidate in place of the petitioner, for promotion to IAS; however, CAT, in the

impugned order has clarified, that as and when the status of the petitioner becomes clear, in the proceedings pending before the State Administrative

Tribunal, the petitioner can stake his claim and which could be with retrospective effect.

Though initially, being of the view that the petitioner having already impugned the order dated 27t h January, 2020 removing him from the regular

cadre of Maharashtra State Service and putting him in a supernumerary post and in which proceedings the petitioner had also been granted interim

relief, the petitioner, for the grievances urged in the O.A. from which this petition arises and which grievances are also consequential to the order

dated 27t h January, 2020, should have approached the same Tribunal but the counsel for the petitioner has explained that the Tribunal which the

petitioner earlier approached and which has granted the interim stay, being the State Administrative Tribunal and the relief claimed by the petitioner in

the O.A. from which this petition arises, being composite reliefs, not only against the Government of Maharashtra but also against the UOI and UPSC,

the petitioner could not have approached the same Tribunal.

The counsels for the Government of Maharashtra, UOI and UPSC have contended that the main grievance of the petitioner, of substitution of his

name in the list of eligible officers for promotion to IAS, with the name of another officer, is against the Government of Maharashtra only and all the

other reliefs claimed against UOI and UPSC, are consequential thereto and it was thus open to the petitioner to approach the State Administrative

Tribunal only.

However, since the consequential reliefs were also available to the petitioner on the date of filing of O.A., it cannot be said that the petitioner was

wrong in filing the O.A. with composite reliefs, before CAT.

The counsel for the petitioner has argued, that the order dated 27t h January, 2020, of which State Administrative Tribunal, in the O.A. preferred

before it by the petitioner has granted interim stay, envisaged further steps, of transferring the petitioner from the post in the regular cadre of State

Service, to a supernumerary post and which steps have not been taken, and thus the petitioner continued in the regular cadre of State Service. It is

contended that once the petitioner continues in the regular cadre of State Service, the name of the petitioner could not have been substituted in the list

of eligible officers for promotion to IAS.

What follows for adjudication in this petition is, whether the interim stay granted by the State Administrative Tribunal in the O.A. preferred by the

petitioner impugning the policy decision dated 21st December, 2019 and the order dated 27th January, 2020 extends to permitting the petitioner to avail

all the benefits which the petitioner could have availed only as an officer of regular cadre of State Service and from which he was purported to be

removed by the order dated 27t h January, 2020.

A reading of the interim order of the State Administrative Tribunal, of stay of the order dated 27t h January, 2020, shows that the same was

granted, not for the reason of finding any prima facie merit in the claim of the petitioner, but merely because in some other O.A.s preferred before the

State Administrative Tribunal, the same relief had been granted. There is nothing in the said interim stay order of the State Administrative Tribunal, to

show, that the petitioner, owing to the interim stay granted, was entitled not only to the maintenance of status quo but also to benefits of promotion etc.

as a cadre officer of the State Service. The grant of interim stay, ordinarily entitles the beneficiary only to maintenance of status quo and not to seek

alteration of the said status to his benefit, notwithstanding that by the impugned action/order the said beneficiary is not entitled thereto.

Though we have hereinabove observed that it was open to the petitioner to file a petition claiming composite reliefs before CAT, but we must say

that since the main grievance of the petitioner in the O.A. from which this petition arises, is also with respect to the State action stemming

from the same order dated 27t h January, 2020 which is already under challenge before the State Administrative Tribunal, it would have been better if

the petitioner had approached the State Administrative Tribunal for clarification of the order of interim stay granted by it. It was the said Tribunal only,

which was best equipped to consider, whether the interim stay should extend to permitting the petitioner to avail of the benefits of promotion etc. as a

cadre officer of the State Service.

We may in this context record another contention of the counsel for the petitioner, that the petitioner, on attaining the age of superannuation of 58

years, in the State Service, on 31st March, 2021 has already superannuated and if he had been promoted to IAS, he would have enjoyed the age of

superannuation of 60 years.

What we have wondered is, that when the challenge by the petitioner to the policy decision dated 21st December, 2019 and the order dated 27t h

January, 2020 of the Government of Maharashtra is still pending consideration and the said policy decision and the order have not been struck down,

whether the petitioner, in the interregnum, can be permitted to avail the promotion, and to which the petitioner would admittedly not be entitled to under

the policy decision dated 21st December, 2019 and the order dated 27th January, 2020.

We have further wondered, whether not allowing the reliefs to the petitioner would tantamount to permitting the petitioner to serve in the IAS till

the age of superannuation of 60 years, literally making the O.A. pending before the State Administrative Tribunal infructuous, inasmuch as the

petitioner would thereafter be not concerned even if the said O.A. were to be dismissed.

In our opinion, while the clock cannot be turned back, the petitioner, if succeeds in the O.A. pending before the State Administrative Tribunal,

would definitely be entitled to claim the consequential reliefs, as already held in the impugned order.

The counsel for the petitioner at this stage contends that the policy decision dated 21st December, 2019 and the order dated 27t h January, 2020 of

Government of Maharashtra wrongly rely on Jagdish Balaram Bahira supra.

However the policy decision dated 21st December, 2019 and the order dated 27th January, 2020 are not under challenge before us nor were under

challenge in the O.A. from which this petition arises. The said argument thus has to be made by the petitioner before the State Administrative

Tribunal.

We thus do not find any merit in the petition and the same is dismissed.        Â