Supreme Court of India
CHANDRAMOHAN PANDURANG KAJBAJEversusSTATE OF MAHARASHTRA AND ORS.
- Citation
- 2008 INSC 15
- Decided
- 7 January 2008
- Disposal
- Case Allowed
- Bench
- H K SEMA
Holding
Non‑PSC employees cannot claim seniority over PSC‑selected employees until their appointments are regularised, and the Supreme Court’s direction to revise seniority lists is binding, making the 1997 seniority lists valid.
Summary
The case concerned employees in Greater Bombay who were appointed to ministerial posts without selection by the Maharashtra Public Service Commission (PSC). The State Government had issued a Resolution on 1 March 1974 allowing such non‑PSC employees to continue in service, but treating PSC‑selected employees who were already in post as senior to them. The Supreme Court had earlier, in Makashi’s case and Kajbaje’s case, directed the State to revise inter‑se seniority lists in accordance with that Resolution. The High Court held that the Supreme Court’s direction was merely obiter and set aside the seniority lists of 5 March 1997 and 25 March 1997. This appeal held that the direction was binding, that non‑PSC employees cannot claim seniority over PSC‑selected employees until their appointments are regularised, and that the 1997 seniority lists were valid. Consequently, the High Court order was set aside and the appeal allowed.
Issues considered
- Whether employees appointed without PSC selection can claim inter‑se seniority over PSC‑selected employees.
- Whether the Supreme Court’s direction in Kajbaje’s case is binding law or merely obiter dicta.
- Whether the seniority lists dated 5 March 1997 and 25 March 1997 were prepared in accordance with the Supreme Court’s direction and are therefore valid.
- Whether the Government Resolution of 1 March 1974 correctly treats PSC‑selected employees as senior to non‑PSC employees.
Legislation cited
- Constitution of Indias. Article 309 (proviso)
Subjects
service lawsenioritypublic service commissioninter‑se seniorityregularisationSupreme Court directionobiter dictagovernment resolutionappointmentMaharashtra
Judgment
[2008] 1 S.C.R. 187
CHANDRAMOHAN PANDURANG KAJBAJE A
't
v.
STATE OF MAHARASHTRA AND ORS.
(C.A. No. 6763 of 2001)
JANUARY 7, 2008
B
[H.K. SEMA AND V.S. SIRPURKAR, JJ.]
... Service Law:
Seniority- lnter-se seniority- Incumbents not appointed
through Public Service Commission - Held: Cannot claim c
seniority vis-a-vis those regularly and properly appointed
through Commission, until their appointments are regularized
by the appointing authority - On facts, direction issued by
Supreme Court to State Government to revise inter-se
seniority lists in terms of Government Resolution dated 1st D
March, 1974 - Final inter-se seniority lists prepared in
pursuance of such direction are valid.
~ Judgment- Obiter dicta - Direction issued by Supreme
Court- Held: Not to be treated as 'obiter dicta'.
E
Direct recruitment to various ministerial posts in
Government offices in Greater Bombay is made on basis
of competitive examinations held by the State Public
Service Commission (PSC). During last several years, a
number of candidates such as the Respondents, who had
not been selected by the PSC came to be recruited to the F
~
said posts, pending allotment of candidates selected by
the PSC. Many of those persons. had put in many years
of service. The question of regularization of appointment
of those persons had been under the consideration of
the Government for some time. G
On 151 March, 19.74, the State Government passed a
·~
Resolution directing that the non-PSC selected persons
employed prior to 1st January, 1971 and in service on the
date of issue of the said Resolution would continue in
187 H
188 SUPREME COURT REPORTS [2008] 1 S.C.R.
A service, without being replaced by candidates selected ,. '
by PSC provided they had the minimum educational
qualifications and were within the prescribed age-limit at
the time of their initial appointment. On the issue of inter-
se seniority between PSC selected employees and non-
B PSC selected employees, the Resolution clarified that PSC
selected candidates working prior to the date of the
resolution would be treated as senior to the non-PSC
selectees covered by the resolution. .....
The question which arose for consideration in the
c present appeal is whether the revised inter-se seniority
lists subsequently published·on 5th March, 1997 and 25th
March, 1997 were in pursuance to directions of this Court
or not.
Allowing the appeal, the Court
D
HELD: 1.1. In service jurisprudence, the incumbent
who did not belong to the stream of regularly and lawfully
~
appointed through Public Service Commission cannot
claim seniority vis-a-vis those who have been regularly
E and properly appointed through the Commission, till the
appointments have become regular and are regularized
by the appointing authority as a result of which their
stream joins the regular stream. [Para 11] [194-G-H; 195-A]
1.2. The Government Resolution dated 1st March,
F 1974 correctly treated the Public Service Commission
J....
selected employees prior to the date of Resolution as
senior to the non-P.S.C. selected employees. [Para 1O]
[194-F]
Shit/a Prasad Shukla v. State of UP & Ors, 1985 Supp.
G
sec 185 - relied on.
2.1. The Government Resolution of 1st March, 1974 .,..
was dealt with by the Supreme Court in Makashi's case.
The decision in Makasi's case was followed by a two-
H Judge Bench of Supreme Court in Kajbaje's case, in which
CHANDRAMOHAN PANDURANG KAJBAJE v. 189
STATE OF MAHARASHTRA & ORS. [H.K. SEMA, J.]
~ f not only the decision in Makasi's case was referred to but A
a direction was also issued to the State Government to
revise the seniority lists in terms of the Resolution dated
1st March, 1974 within four months' time. It is in pursuance
of the said direction that final seniority lists were prepared
on 6th March, 1997 and 26th March, 1997. [Paras 12, 13, 8
14] [195-H; 197-C-E]
..... 2.2. The High Court failed to take note of the fact that
'. a direction was issued by this Court. A direction issued
by this Court cannot be treated as 'obiter dicta'. It appears
that the High Court did not care to read the judgment of c
Supreme Court in between the lines in Makasi's case
followed by Kajbaje's case. This is where the High Court
went wrong creating multiplicity of litigation instead of
giving a quietus to the litigation. The final seniority lists,
published on 6th March, 1997 and 26th March, 1997, are D
validly made and in pursuance of the directions of this
....,+- Court. [Paras 15, 16] [197-G-H; 198-A]
R.S. Makashi & Ors. v. l.M. Menon & Ors., (1982) 1 SCC
379 and Chandramohan P Kajbaje & Ors. v. State of
Maharashtra & Ors. [SLP Nos. 28017-28024 of 1995] E
disposed of by S.C. on 8th Nove!llber, 1996 - referred to.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6763
of 2001.
~
From the final Judgment and Order dated 11.10.2000 of F
the High Court of Judicature at Bombay in W.P. No. 3024/1997.
Sameer Parekh and Rukhmini Bobde (for M/s. Parekh &
Co.) for the Appellant.
S.K. Dholakia, Bharat Sangal, Aparajita Singh, S.S.
Shinde, Asha Gopalan Nair and Bina Madhavan for the G
~ Respondents.
The Judgment of the Court was delivered by
H.K. SEMA, J. (1) This appeal is directed against the
judgment and order dated 11.10.2000 of the Division Bench of H
190 SUPREME COURT REPORTS [2008] 1 S.C.R.
.,..
A the High Court of Bombay in Writ Petition No. 3024 of 1997
(2) This case has a chequered history. The controversy, in
this appeal, is with regard to inter-se seniority between
Maharashtra Public Service Commission (PSC) selectee
employees and non-Public Service Commission employees.
B Lengthy arguments have been advanced before us by learned
counsel on both sides. However, the resolution of dispute
bogged down to a narrow compass.
(3) The question raised is, as to whether the final inter-se
. ....
c seniority lists published on 61h March, 1997 and 261h March,
1997 were in pursuance to the directions of this Court or not.
(4) This appeal is preferred by a Public Service
Commission selectee employee. The undisputed facts are:
The respondents were non-PSC selectee employees. They
D
were appointed in between 1962 and 1965 by executive orders
on ad-hoc basis without resorting to process of selection by
~
Public Service Commission. Prior to their appointment, by a
Noti.fication dated 22nd May, 1957, the Government of
Maharashtra, in exercise of the powers conferred by the proviso
E to Article 309 of the Constitution, amended the Bombay Civil
Services Classification and Recruitment Rules, 1939. Rule 2
(B) thereof provides that appointments of Lower Division -Clerks,
Clerk-Typist, Typists shall be made by nomination on the result
of a competitive examination held by the Commission.
F ./>..
(5) It is undisputed that the appointments of respondents
were not made on the result of a competitive examination held
by the Commission. It is also not disputed that their services
had never been regularized till coming into force the Government
resolution dated 1st March, 1974, which is apple of discord in
G
these proceedings.
'f
(6) The Government Resolution No. EXM-1074-Q,
Sachivalaya, Bombay - 32, BR, dated 1st March, 1974 is
relevant for proper adjudication of the present controversy, and,
H therefore, it is extracted:
CHANDRAMOHAN PANDURANG KAJBAJE v. 191
STATE OF MAHARASHTRA & ORS. [H.K. SEMA, J.]
"Persons temporarily appointed to Ministerial posts in A
Government Offices in Greater Bombay pending availability
of P.S.C. selected candidates - Regularisation of
appointments of.
GOVERNMENT OF MAHARASHTRA
General Administration Department, B
Resolution No. EXM-1074-Q,
Sachivalaya, Bombay - 32, BR,
Dated the 1st March, 1974
RESOLUTION: Direct recruitment to various ministerial c
posts in Government offices in Greater Bombay, including
Secretariat Departments, viz., Clerks, Typists,
Stenographers, Assistants etc. is made on the basis of
the results of the competitive examinations held by the
Maharashtra Public Service Commission. During the D
course of last several years, a number of candidates who
have not been selected by the Public Service Commission
came to be recruited to these posts, pending allotment of
candidates selected by the Public Service Commission.
Many of these persons have put in many years of service. E
The question regarding regularization of appointment of
these persons has been under the consideration of
Government for some time past. Government is now
pleased to direct, after consulting the Maharashtra Public
Service Commission, that the non-P.S.C. who were
employed in the ministerial posts, viz. Clerks, Typists, F
Clerk-Typists, Steno-Typists and stenographers in the
Secretariat Departments and various Government Offices
in Greater Bombay prior to 1st January, 1971 and who are
in the service ot Government on the date of issue of these
orders should continue in Government service, without G
being replaced by the candidates selected by the
Maharashtra Public Service Commission provided they
fulfil the following conditions:-
(1) The non-P.S.C. persons concerned should have the H
192 SUPREME COURT REPORTS [2008] 1 S.C.R.
A minimum educational qualifications prescribed for
the posts to which they were appointed.
(2) They were within the age-limits prescribed for
appointment to the respective posts held by them at
the time of their initial appointment to such posts.
B
2. The above orders will also be applicable to the non-
P.S.C. persons who were recruited in various Government
Offices prior to 1st January 1971 but were subsequently
retrenched and provided with alternative employment,
c according to the orders contained in Government
Resolution, General Administration Department No. AEM-
1071-J, dated the 1st June, 1971 and are in Government
service on the date of issue of these orders.
3. The candidates who were recruited in the Secretariat
D Departments and various Government Offices on or before
1st January, 1971 will be replaced by the candidates
selected by the Commission as soon as such candidates
are available, unless in the meanwhile, they appear at the
competitive examinations, held by the Public Service
E Commission and are selected by the Commission for
appointment to the respective posts held by them.
4. The seniority of the non-P.S.C. persons referred to in
para 1 and 2 above vis-a-vis the candidates selected by
the public Service Commission working in various
F Departments/ Offices should be fixed with reference to
the date of issue of this order. The inter-se seniority of
these non-P.S.C. persons working in a particular
Department/ Office should however be according to their
length of service in the respective posts in their
G Departments. In other words, the Public Service
Commission selected candidates working in various
Departments! Offices prior to the date of this resolution
should be treated as senior to the non-PS. C. persons
referred to in para 1 and 2.
H (emphasis supplied)
CHANDRAMOHAN PANDURANG KAJBAJE v. 193
STATE OF MAHARASHTRA & ORS. [H.K. SEMA, J.]
• ...:. 5. Government is very much concerned over the practice A
of recruitment of non-P.S.C. candidates in Government Offices
in Greater Bombay all these years. Government has therefore
decided that there should be an absolute ban on direct
recruitment to various ministerial posts in Government Offices
in Greater Bombay through the Employment Exchange or any B
other source. Under no circumstances should such a recruit be
continued beyond a period of three months.
·' '""!
6. All Heads of Departments and Offices should follow the
above instructions scrupulously. The receipt of this resolution
should be acknowledged. c
By order and in the name of the Governor of Maharashtra.
K.G. Paranjpe
Secretary to Government of Maharashtra"
D
(7) It is clear from the above Resolution that the direct
recruitment to various ministerial posts in Government offices
....,t- in Greater Bombay, including Secretariat Departments, viz.,
Clerks, Typists, stenographers, Assistants etc. is made on the
basis of the results of the competitive examinations held by the
Maharashtra Public Service Commission. The Government also E
took note of the fact by the said Resolution that during the
course of last several years, a number of candidates
(respondent's group), who had not been selected by the Public
Service Commission came to be recruited to the said posts,
J .{ pending allotment of candidates selected by the Public Service F
Commission. The Resolution further noted the fact that many of
those persons ·had put in many years of service. The Resolution
also revealed that the questions of regularization of appointment
of those persons had been under the consideration of the
Government for some time past. The Resolution also speaks G
about the decision taken by the Government in consultation
::;(
with Public Service Commission, that the non-P.S.C. who were
employed in the ministerial posts, viz. Clerks, Typists, Clerk-
Typists, Steno-Typists and stenographers in the Secretariat
Departments and various Government Offices in Greater H
194 SUPREME COURT REPORTS [2008] 1 S.C.R.
A Bombay prior to 1st January, 1971 and who were in the service
..
of Government on the date of issue of the said Resolution should
continue in Government service, without being replaced by the
candidates selected by the Maharashtra Public Service
Commission provided they had the minimum educational
B qualifications and were within the prescribed age-limit at the
time of their initial appointment.
(8) The Resolution further made it clear that the seniority ~·
of the non-P.S.C. persons vis-a-vis the candidates selected by
the public Service Commission working in various Departments/
c Offices should be fixed with reference to the date of issue of the
order. It was further made clear that the inter-se seniority of the
said non-P.S.C. persons working in a particular Department/
Office should however be according to their length of service in
the respective posts in their Departments. The Resolution
D specifically clarified in paragraph 4 as under:
"In other words, the Public Service Commission selected
candidates working in various Departments/ Offices prior
....
to the date of this resolution should be treated as senior
to the non-P.S.C. persons referred to in para 1 and 2."
E
(9) The non-P.S.C. employees (respondents herein) have
not challenged the Government Resolution dated 1st March,
1974 in any forum.
(10) On a cursory reading of the Resolution, as referred to
F' above, we have no doubt in our mind that the Public Service t-'
Commission selected employees prior to the date of Resolution,
were correctly treated as senior to the non-P.S.C. employees.
(11) In service jurisprudence the incumbent who did not
G belong to the stream of regularly and lawfully appointed
through Public Service Commission cannot claim seniority
)<:
vis-a-vis those who. have been regularly and properly
appointed through the Commission, till the appointments
have become regular and are regularized by the appointing
authority as a result of which their stream joins the regular
H
CHANDRAMOHAN PANDURANG KAJBAJE v. 195
STATE OF MAHARASHTRA & ORS. [H.K. SEMA, J.]
~
if stream. In Shit/a Prasad Shukla (appellant) v. State of U.P & A
Ors. (respondents) 1986 Supp. SCC 185, this Court held at
page sec 190 para 10 as u~der:
"10. An employee must belong to the same stream before
he can claim seniority vis-a-vis others. One who belongs
B
to the stream of lawfully and regularly appointed employees
does not have to contend with those who never belonged
I -...< to that stream, they having been appointed in an irregular
manner. Those who have been irregularly appointed
belong to a different stream, and cannot claim seniority
vis-a-vis those who have been regularly and properly c
appointed, till their appointments became regular or are
regularized by the appointing authority as a result of which
their stream joins the regular stream. At that point of
confluence with the regular stream, from the point of time
they join the stream by virtue of the regularization, they can D
claim seniority vis-a-vis those who join the same stream
~- later. The latecomers to the regular stream cannot steal a
march over the early arrivals in the regular queue. On
principle the appellants cannot therefore succeed. What
is more in matters of seniority the court does not exercise E
j~risdiction akin to appellate jurisdiction against the
determination by ttfe competent authority, so long as the
competent authority has acted bona fide and acted on
principles of fairness and fair play. In a matter where there
I. ..I; is no rule or regulation governing the situation or where F
there is one, butis not violated, the court will not overturn
the determination unless it would be unfair not to do so. In
any view of the matter the appellant who did not even
belong to the stream of regularly (he was allowed to
teach only ·in an irregular and unauthorised manner)
G
and lawfully appointed lecturers cannot claim seniority
:::( against any one already in the stream before he joined
the stream himself. The view taken by the High Court is
unexceptionable."
(12) That apart, the Government Resolution of 1st March, H
196 SUPREME COURT REPORTS [2008] 1 S.C.R.
A 1974 has been dealt with by this Court in R.S. Makashi & Ors.
(appellant) v. /.M. Menon & Ors. (respondents), (1982) 1 SCC
379. In fact Makashi's case (supra) was a dispute relating to
inter-se seniority between the direct recruits and the incumbents
coming from different departments. However, a three-Judge
B Bench of this Court had also occasion to deal with the
Government Resolution dated 1st March, 1974 in paragraph 25
of the Judgment as under:
"25. On March 1, 1974, the Government of Maharashtra
passed a Resolution directing that non-P.S.C. persons
c who were employed in the ministerial posts, namely, Clerks,
Typists, Clerk-cum-Typists, Steno-typists and
Stenographers in the Secretariat departments and various
government offices in Greater Bombay, prior to January
1, 1971, and who were in the service of Government on
D the date of the issue of the said order, should continue in
government service without being replaced by the
~-;,•O::ioates selected by the Maharashtra Public Service
I ·-:.rr ""'··_·:-: "'';Vi<ted they possessed the minimum
,: ,' :;iional qualifications prescribed for the post to which
E ·_, ,ey were appointed and they were also within the age
limits prescribed for appointment to the respective posts
held by them at the time of their initial appointment to such
posts. It was made very clear in para 4 of the said order
that the seniority of the non-P.S.C. persons on whom the
F benefit of permanent absorption in service was conferred ,,_ '
thereunder was to be fixed only with reference to the date
of the said order and that all the Public Service
Commission selected candidates who were working in
the various departments/offices prior to ·the date of the
G
said Resolution would be treated as seniors in relation to
the non-P.S.C. persons covered by the said order. It is
manifest that this order did not in any way affect the inter
se seniority between the writ petitioners and the 'released
government servants' drafted to the BRO from other-
government departments wherein they had been holding
H
CHANDRAMOHAN PANDURANG KAJBAJE v. 197
STATE OF MAHARASHTRA & ORS. [H.K. SEMA, J.]
posts on a regular basis after having passed the Public A
Service Commission examination. It is also worthy of note
that the Government Resolution of 1974 was a general
order applicable to all the non-P.S.C. personnel functioning
on a temporary or ad hoc basis in the Secretariat as well
as the various departments of the State Government and B
except as indicated above it did not have any special
applicability to the BRO."
(13) The decision in Makasi's case has been followed by
a two-Judge Bench of this Court in Chandramohan P Kajbaje
& Ors. (Petitioners) v. State of Maharashtra & Ors. (respondents) C
in Special Leave Petiton Nos. 28017-28024 of 1995 disposed
of on ath November, 1995.
(14) In Kajbaje's case (supra) the Government Resolution
dated 1st March, 1974 was dealt with by this Court - not onli D
the decision in Makasi's case was referred to but a directic1,
was, also issued to the State
I
Government to revise the seniorit)·
lists in terms of the Resolution dated 1st March, 1974 within fou1
months' time. It is in pursuance of the said direction that final
seniority lists were prepared on 5th March, 1997 and 25th March, •
1997.
(15) It appears that both the Makasi's case and Kajbaje's
case (supra) were brought to the notice of the Division Bench
of the High Court, but we notice with dismay that the High Court
has brushed aside the judgment of the Supreme Court on the F
ground that the said observations of the Supreme Court are
only an obiter dicta and they cannot be treated as ratio
decidendi. It is most unfortunate. The High Court has failed to
take note of the fact that a direction was issued by this Court. A
direction issued by this Court cannot be treated as 'obiter dicta'. G
It appears that the High Court did not care to read the judgment
of this Court in between the lines in Makasi's case followed by
Kajbaje's case. This is where the High Court went wrong
. creating multiplicity of litigation instead of giving a quietus to
·• 1 the litigation. · H
198 SUPREME COURT REPORTS [2008] 1 S.C.R.
A (16) In the result, this appeal is allowed. We hold that the
final seniority lists, published on 61h March, 1997 and 261h March,
1997, are validly made and in pursuance of the directions of
this Court, as referred to above. The impugned order of the High
Court dated 11th October, 2000 is set aside. Parties are asked
B to bear their own costs.
B.B.B. Appeal allowed.
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