Bombay High Court
Sunita Daulatrao Patil And Ors vs The State Of Maharashtra And Ors on 17 March, 2010
Bench: B.H. Marlapalle, Roshan Dalvi
1
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7415 OF 2003
WITH
CIVIL APPLICATION NO. 1429 OF 2007
AND
CIVIL APPLICATION NO. 439 OF 2009
AND
CIVIL APPLICATION NO. 1889 OF 2009
1. Sunita Daulatrao Patil and ors. .. Petitioners
Vs.
1. The State of Maharashtra and ors. .. Respondents
WITH
WRIT PETITION NO. 6619 OF 1998
1. Shyam Jahagirdar and ors. .. Petitioners
Vs.
1. The State of Maharashtra and anr. .. Respondent
WITH
WRIT PETITION NO. 7414 OF 2003
1. Shri G. P. Aparajit and ors. .. Petitioners
Vs.
1. The State of Maharashtra and ors. .. Respondents
WITH
WRIT PETITION NO. 8246 OF 2003
::: Downloaded on - 09/06/2013 15:43:21 :::
2
1. Milind Shashikant Pande and ors. .. Petitioners
Vs.
1. Smt. Sunita Daulatrao Patil and ors.
WITH
WRIT PETITION NO. 8607 OF 2003
The State of Maharashtra .. Petitioner
Vs.
Sunita D. Patil and ors. .. Respondents
Mr. A. V. Anturkar i/by Mr. V.S. Talkute for petitioners in W.P. No. 7415 of
2003.
Mr. N.V. Bandiwadekar for petitioner No.3 in W.P. No. 7414 of 2003.
Mr. P.M. Pradhan, Spl. Counsel with Mr. S.R. Nargolkar, AGP for
Respondent No.1 in W.P. No. 7415 of 2003, for Respondent Nos.1 and 2
in W.P. No. 6619 of 1998, for Respondent No. 1 in W.P. No. 7414 of
2003, for Respondent Nos. 5 and 6 in W.P. No. 8246 of 2003 and for
petitioner in W.P. No. 8607 of 2003.
Mr. S.R. Atre, for MPSC.
Mr. P.K. Dhakephalkar, Senior Advocate i/by Mr. N.V. Bandiwadekar for
respondent nos.3 and 6 in W.P. No. 7415 of 2003.
Mr. A.R. Pitale for respondent no.5 in W.P. No. 7415 of 2003.
CORAM : B.H. MARLAPALLE &
SMT. ROSHAN DALVI, JJ.
th Judgment reserved on 18 December, 2009 Judgment declared on 17th March, 2010.
::: Downloaded on - 09/06/2013 15:43:21 ::: 3J U D G M E N T ( Per B. H. Marlapalle, J.)
1. These petitions challenge the judgment and order dated 11.9.2003 rendered by the Maharashtra Administrative Tribunal in Original Application No. 421 of 2003, which was filed by Mrs. Sunita Daulatrao Patil and three others.
2. Brief facts, leading to these petitions, are set out as under:
i. The Maharashtra Legislative Assembly resolved on 10.3.1981 that the degree holders Junior Engineers-Class-III who were appointed before April, 1981 should be given gazetted officer's status and consequently, the cadre of Assistant Engineer, Grade-II, Class-II was created on 19.3.1981 for direct recruitment by Maharashtra Public Service st Commission (MPSC) for degree holder Engineers w.e.f. 1 th April, 1981. On 16 April, 1984, a Government Resolution came to be issued giving effect to his decision. However, on 18.9.1984, the Government of Maharashtra issued a Government Resolution prescribing procedure to be followed for appointment of Assistant Engineers on ad hoc and temporary basis for a period of four months to one year, until ::: Downloaded on - 09/06/2013 15:43:21 ::: 4 the regular Recruitment Rules were framed by the State Government such engineers on ad hoc temporary basis came to be appointed and on 19.7.1993, the State Government issued a circular providing for a committee consisting of Chief Engineer and two Superintendent Engineers.
ii. For the first time on 25.12.1996, the MPSC advertised for direct recruitment of Assistant Engineers- Class
- II through open competitive examination and the applications were required to be submitted by 25.1.1997. This advertisement came to be challenged before the Mahashtra Administrative Tribunal (MAT) by some of the ad hoc Assistant Engineers, Class-II on the ground that the MPSC could not have started recruitment process of gazetted status engineers unless the Recruitment Rules were framed by the State Government, but on 27.1.1997, the Tribunal disposed off the said application by directing the State Government to frame Rules. Review petition No. 13 of 1997 was decided on 22.4.1997, giving time of two months to the State Government to frame the Recruitment Rules and on 16.6.1997, it framed the Recruitment Rules. Rule-8 of the said Rules provided for procedure to be followed for the regularization of the ad-hoc Assistant Engineers, Class-II. In July/August, 1997, the MPSC conducted only an oral examination for the ad hoc Assistant ::: Downloaded on - 09/06/2013 15:43:21 ::: 5 Engineers who had completed minimum three years service on 31.12.1996, and 509 of such ad-hoc Engineers appeared for the said examination and out of them, 491 passed the oral examination, where as remaining 14 failed. No steps were taken by the Government to regularize these 495 ad hoc engineers on their passing of the oral examination conducted by the MPSC as per Rule-8 of the Recruitment Rules 1997.
iii. A combined written examination was conducted by th th the MPSC on 13 and 14 December, 1998 and examinees were those who had applied directly to the MPSC advertisement as well as those ad hoc Assistant Engineers,Class II who had less than three years service as on 31.12.1996. At least 97% of these ad-hoc engineers who had less than three years service on 31.12.1996, failed in that th examination as per the result published on 20 April, 1999.
Successful candidates were called for viva voce which was conducted in May-July, 1999 and the final results were th published on 19 Sept. 1999.
iv. While the select list was prepared by the MPSC and was pending for appointment order to be issued by the Government, the Government issued a Resolution dated 1.3.2000 amending Rule-8 of the Recruitment Rules 1997 and the procedure for regularization of the ad hoc Assistant ::: Downloaded on - 09/06/2013 15:43:21 ::: 6 Engineers Class-II was sought to be changed. The summer th session of the Legislative Assembly had commenced on 13 March, 2000 and the Government Resolution dated 1.3.2000 was not placed before the Assembly, as required under Article 320(5) of the Constitution of India, as per the petitioners. This resolution came to challenged in Writ Petition No. 2480 of 2000 which was filed on 9.5.2000 and on the same day, the learned Vacation Judge had stayed the operation of the said resolution. However, on 6.3.2003, the Writ Petition came to be disposed off with liberty to the Petitioners to approach the MAT and this order dated 6.3.2003 came to be challenged in Special Leave Petition (Civil) No. 5583 of 2003 and the SLP was dismissed on 10.4.2003. The petitioners then approached the Tribunal by filing Original Application No. 421 of 2003 and after hearing all the parties concerned, the Original Application was decided on 11.9.2003. The operative part of the said order reads as under:
"The Original Application is partly allowed.
The Government Resolution dated 1.3.2000 is partly held to be invalid and set aside. It is invalid in respect of 507 posts of Assistant Engineers Grade-II (Class-II) (Civil) contemplated by Group "B" and in respect of 399 posts of Assistant Engineers Grade-II (Class-II) (Civil) contemplated by Group "C". It is made clear that they ::: Downloaded on - 09/06/2013 15:43:21 ::: 7 can be regularized following the Rules of 1997.
The rest of the G.R. is upheld.
O.A. Disposed off accordingly."
The above order passed by the Tribunal came to be challenged in this group of petitions and on 26.7.2006, the petitions were partly allowed. The impugned order, passed by the Tribunal, was set aside and Original Application No. 421 of 2003 was remanded for fresh decision in accordance with law, requesting the tribunal to decide it as early as possible, preferably within four months. Interim order of stay to the operation of the Government Resolution dated 1.3.2000 was continued for two more weeks. This order dated 26.7.2006 came to be challenged by some of the ad hoc appointees in Special Leave Petition (Civil) No. 12960 of 2006. On 9.10.2006, the Supreme Court was pleased to set aside the order dated 26.7.2006 passed by this Court, with a request to dispose off these petitions within three months.
3. During the pendancy of these petitions , the Government of Maharashtra issued a Notification on 8.7.2009 and published the Assistant Engineers (Civil) (Grade-II) in Maharashtra Services of Engineers, Group-B Recruitment (Amendment) Rules, 2009. Under the said Rules, the State Government amended Rule-8 of the Recruitment Rules,1997, in place of the impugned Government Resolution dated 1.3.2000 and immediately thereafter, the petitioner took out Civil ::: Downloaded on - 09/06/2013 15:43:21 ::: 8 Application No. 1887 of 2009 seeking amendment in the petition so as to challenge the amended Rule 8 of the Recruitment Rules for providing regularization of the Assistant Engineers appointed on ad hoc and temporary basis. By our order dated 18.9.2009, the said application was allowed and thus the petitioners have challenged, by way of additional prayers, the validity of the amended Rule-8, in the Recruitment Rules-1997.
4. There is no dispute between the parties that the Government Resolution dated 1.3.2000 was not acted upon at any time and on amendment of the Recruitment Rules, on 8.7.2009, the said GR ceased to exist and therefore, the challenge to the said G.R. as well as to the order passed by the Tribunal came to an end. We are, therefore, required to examine only the challenge to the amended Rule 8 of the Recruitment Rules, providing for the regularization of the ad-hoc and temporary appointed Assistant Engineers, Grade-II, in this group of petitions.
5. We reproduce herein below Rule 8 of the Recruitment Rules, 1997 and the very same rule, amended in the year 2009 which is under challenge, as under:
Rule-1997.
8. Notwithstanding anything contained in Rule 3, the st temporary appointments made to the posts till the 31 December, 1996, may be regularized in the following manner, ::: Downloaded on - 09/06/2013 15:43:21 ::: 9 namely:
(a) The persons who have completed minimum three st years of continuous service as on the 31 December, 1996, and have satisfied the requirements of qualification and age limit mentioned in rule 3, at the time of their appointment, shall have to qualify in viva-voce or limited Competitive examination to be held by the commission during 1997-98.
(b) Services of those persons who will qualify in such examination will be regularized.
(c) The seniority of such qualified persons shall be fixed as per the existing rules notified vide Government Notification, General Administration Department, No. SRV 1076/XII, dated st 21 June, 1982 regarding fixation of seniority.
(d) The services of persons who do not qualify in such examination shall be terminated by the Government.
(e) The persons who have been appointed to the posts
st st
on or after 1 January, 1994 but on or before 31 December, 1996 and who possess the qualification mentioned in rule 3(ii) shall, in relaxation if necessary of the age limit prescribed in Rule 3(i), be required to get selected in the first attempt in the regular combined competitive examination to be held by the commission during 1997-98. Service of such persons who have not been selected in the above competitive examination shall be terminated by the Government, and the seniority of ::: Downloaded on - 09/06/2013 15:43:21 ::: 10 selected persons shall be fixed in accordance with the rules st mentioned in Government Notification, dated the 21 June, 1982, mentioned in rule 8(c).
Amended Rule- 2009.
"8. Notwithstanding anything contained in Rule 3, the th appointments made to the posts till the 16 June, 1997, shall be regularized in the following manner, namely:-
(a) The persons appointed on regular basis during the period nd th from the 2 April, 1981 to the 16 April, 1984 to the post of Graduate Junior Engineers (Class-III) either through the State Selection Board or from the candidates who have given bonds for serving in Government service as per the then prescribed procedure for appointment, shall have to pass viva-
voce test that shall be the qualifying examination, to be held by the Commission during the period 2009-2010 or immediately thereafter, to enable them to be absorbed in the cadre of Assistant Engineer, Grade II (Junior Gazetted Class-
II), created for Graduate Junior Engineers vide Government Resolution, Irrigation Department No. CDS 1582/158(215)/ th EST-(10), dated the 16 April, 1984.
(b) The Diploma holder Junior Engineers regularly appointed in Class-III post and who have obtained A.M.I.E. (Equivalent to B.E. Degree) or B.E. Degree while in service ::: Downloaded on - 09/06/2013 15:43:21 ::: 11 th have been given benefit of 3/8 of service rendered as Junior st th Engineer, during the period from the 1 April, 1981 to 16 June, 1997, in the light of the provisions of the Government Resolution, Irrigation Department, No. S.L.S. 2681/1273/ th (500)/EST(8), dated the 29 November, 1984. Such persons shall have to pass viva-voce test that shall be the qualifying examination, to be held by the Commission during 2009-2010 or immediately thereafter, to enable them to be absorbed in the cadre of Assistant Engineer, Grade II, vide Government ig th Resolution dated 16 April, 1984.
(c) Services of persons appointed on temporary basis to the post of Assistant Engineer, Grade-II, during the period from th st the 17 April, 1984 to 21 December, 1996 and who have already qualified in viva voce test held by the Commission th nd from the 7 August, 1997 to 2 September, 1997 and those who have qualified in the combined competitive examination th held by the Commission during the period from the 12 th December, 1998 to 13 December, 1998 shall be regularized in the cadre of Assistant Engineer, Grade-II from the date of their initial appointment in the cadre of Assistant Engineer, Grade-II.
th
(d) The persons appointed during this period from 17 st April, 1984 to 31 December, 1996, and not qualified in the above said viva-voce test or Combined Competitive Examination as the case may be held by the Commission shall ::: Downloaded on - 09/06/2013 15:43:21 ::: 12 have to pass in the viva-voce test to be held by the Commission during the period 2009-2010 or immediately thereafter, to enable them to get regularized in the cadre of Assistant Engineer, Grade-II.
(e) Persons who do not pass such viva-voce test shall be given second opportunity to appear for the viva-voce test to be held by the Maharashtra Public Service Commission, to enable them to get their services regularized in the cadre of Assistant Engineer, Grade-II.
(f) The persons who do not pass in the second attempt shall be given one more opportunity by way of last chance to appear for the viva-voce test to be held by the Maharashtra Public service Commission, to enable them to get their services regularized in the cadre of Assistant Engineer, Grade-
(g) The services of persons mentioned in clauses (a),
(b), (d), (e) and (f) of this rule, who pass the viva-voce test to be held by the Commission during the period 2009-2010 or immediately thereafter, shall be regularized in the cadre of Assistant Engineer, Grade-II, from the date of their initial appointment, either in the cadre of Graduate Junior Engineers or Assistant Engineer, Grade II.
(h) The persons who do not pass viva-voce as provided in the clause (f), their services as Assistant Engineer, Grade-II shall be terminated:
::: Downloaded on - 09/06/2013 15:43:21 ::: 13Provided that, if such persons give an undertaking to the effect that, they are ready to get absorbed in the cadre of Junior Engineer, Group-B (Non Gazetted) ( which is below that of Assistant Engineer, Grade II) with the placement at the bottom of the seniority list of the particular year in which viva-
voce test is held, then such persons shall be absorbed in that cadre.
(i) The persons who were appointed during the period nd th from 2 April, 1981 to 16 June, 1997 and who have either retired on superannuation or voluntarily retired or left the above referred post for any other reasons, shall be deemed to be regularized in the cadre of Assistant Engineer, Grade-II.
(j) The seniority of such persons except those who have passed combined competitive Examination mentioned in clause (c) and the persons mentioned in clause (d), shall be fixed in the cadre of Assistant Engineer, Grade II, as per the provisions of the first proviso to sub-rule (1) to Rule 4 of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 and the Seniority of such persons mentioned in clause
(d) shall be fixed at the bottom of the directly recruited batch joined in the year 2001."
6. The petitioners are the direct appointees through MPSC.
The crux of the petitioners' grievance is regarding their seniority and it ::: Downloaded on - 09/06/2013 15:43:21 ::: 14 is contended that the Amended Rule 8 is unconstitutional as under the said Rule, ad-hoc appointees who were unsuccessful in the selection by the MPSC in the year 1997-98, would be ranked senior to them en-
mass, as the regularization under it is sought to be made form the date of initial appointment on ad hoc basis.
Mr. Anturkar, the learned counsel for the appellants, referred to the amended Rule 8(g) and submitted that the petitioners substantial challenge is to the validity of the said Rule and mainly to the underlined portion. For ready reference, Rule 8(g) is once again reproduced as under:
(g) The services of persons mentioned in clauses (a),
(b), (d), (e) and (f) of this rule, who pass the viva-voce test to be held by the Commission during the period 2009-2010 or immediately thereafter, shall be regularized in the cadre of Assistant Engineer, Grade-II, from the date of their initial appointment, either in the cadre of Graduate Junior Engineers or Assistant Engineer, Grade II.
In short, the challenge by the petitioners is to the regularization of the temporary appointees and mainly under Rule 8(d) to (f) and that too from the date of their initial appointment, as even those who do not become eligible for regularization in terms of clauses (a) and (b) of Rule 8 are likely to stand senior to the petitioners, if such temporaries have ::: Downloaded on - 09/06/2013 15:43:21 ::: 15 been appointed prior to the date of appointment of the petitioners, though they were never regularly selected, they failed in the competitive examinations conducted by the MPSC in 1997-98 and their regularization would be contrary to the law laid down in the case of Umadevi (supra). It was further urged that when the temporary appointees were given an opportunity as per the Recruitment Rules, 1997, they either did not appear for the examinations or were not successful in the same. In terms of the said old Rule 8, they were required to be terminated from service and the Government did not act as per the Rules of 1997 and retained them in service. Such illegally continued temporary appointees can not be treated senior to the petitioners and the Government is rewarding these unsuccessful candidates by regularizing them from the date of their initial appointment, urged the learned counsel.
It was also submitted by the learned counsel that the Government has not exercised its powers under Article 309 of the Constitution bona fide and the impugned amendment has been undertaken during the pendency of the petition and solely to frustrate the challenge to the decision rendered by the tribunal. He also alleged that the GR dated 1/3/2000 challenged before the tribunal was acted upon in some selected cases despite the stay granted to the operation of the said GR. By referring to the information made available under the Right to Information Act, it was submitted that in one project alone, the ::: Downloaded on - 09/06/2013 15:43:22 ::: 16 Superintending Engineer appointed as many as 26 graduate engineers on temporary basis for a period of four months during the period from March to July 1996 and all of them came to be continued all along without any selection test, and all these back-door entrants in the service are proposed to be senior to the petitioners. The amended Rule, therefore, is in breach of the guarantee under Article 14 of the Constitution in as much as it seeks to treat unequals as not only equals but more equals. It was urged that the legal position as settled by a catena of decisions of the Supreme Court does not permit the engineers to be regularized under Clauses (d) to (f) of the amended Rule 8 to be treated as seniors to the petitioners.
7. The Government of Maharashtra, through the Water Resources Department, has filed affidavit in reply and has opposed the amended petitions on preliminary points as well as on merits. It has been contended that the petitions are pre-mature, inasmuch as, the regularization as contemplated under clauses (d) to (f) of Rule 8 has not yet been effected and therefore, there is no cause of action as of now to draw a seniority list of such regularized Assistant Engineers. It was submitted that as and when such seniority list is published on the basis of the regularization in terms of clauses (d) to (f) of Rule 8, the petitioners, if aggrieved, will have to submit representations to the competent authority and thereafter approach the MAT. Reliance was also placed on the decision of the Seven Judge Bench in the case of ::: Downloaded on - 09/06/2013 15:43:22 ::: 17 L.Chandrakant Vs. Union of India and others, 1997 (3) SCC, 361 in support of the contentions that the challenge to the validity of Rule 8(g) is required to be, at the first instance, taken up before the Tribunal and it cannot be entertained directly before this Court and the petitioners are required to be relegated to the remedy under the Administrative Tribunals Act even to challenge the Constitutional validity of the amended Rule 8.
8. The reply to the amended petition filed by the Joint Secretary in the Water Resources Department states that prior to 1981, the cadre of Junior Engineers was a single cadre comprising of both the degree as well as diploma holder Engineers. However, the seniority list of graduate Junior Engineers and diploma Junior Engineers was separately maintained from the year 1970 onwards and a separate quota for promotion to the post of Deputy Engineer for graduate Junior Engineers and diploma Junior Engineers was maintained. The post of Junior Engineer was in Class-III and is the basic and elementary post at the field level for both the departments i.e. Irrigation Department and Public Works Department. The appointments to these posts from the degree as well as diploma holders were earlier made by the Committee under the Chairmanship of the coordinating Superintendent Engineers from the year 1961 to 1976. During the year 1976, the State Selection Board became functional. By Government Resolution dated 28/4/1978 it was decided to obtain a bond from the graduate engineers and diploma ::: Downloaded on - 09/06/2013 15:43:22 ::: 18 engineers at the time of their admission in the Government Engineering and Polytechnic Colleges to the effect that on their completion of graduation/diploma, they will serve in the Government services for at least 4 years for graduates and 2 years for diploma holders. During the years 1976 to 1983 diploma/degree holder Junior Engineers were recruited by the State Selection Boards and also from the candidates who had given Bonds to serve in Government services and such candidates were recruited by the Committee under the Chairmanship of coordinating Superintendent Engineer/Chief Engineer along with principals of Engineering/Polytechnic Colleges and the representative of Director, Technical Education as members of the said Committee. On 18/6/1983, the Selection Board came to be abolished. In order to have a betterment in the service conditions of the graduate/diploma engineers, the Government approved a proposal to upgrade their post to Class - II and accordingly such an announcement was made on the floor of the Legislative Assembly on 10/3/1981. The Government issued the GR dated 16/4/1984 so as to bifurcate the cadre of Junior Engineers in two separate cadres i.e. Sectional Engineers for diploma holders with diploma of three years duration, and seven years for the holders of diploma of two years duration and 10 years for the holders of diploma of less than two years duration. Whereas the degree holder Engineers were designated as Assistant Engineer, Grade - II by forming new cadre for such employees. Both these cadres were conferred with Junior Gazetted Class - II status, but the duties and responsibilities are ::: Downloaded on - 09/06/2013 15:43:22 ::: 19 the same. Under the said Resolution dated 16/4/1984, it was also decided that the percentage of Assistant Engineer, Grade - II (graduate Junior Engineers) will be 25% of the total number of Junior Engineers with diploma qualifications. As the position of Assistant Engineer -
Grade II was upgraded to the Gazetted status, it fell within the purview of the MSPC and, therefore, there was necessity to frame recruitment Rules. This took some time and in the intervening period, it was not possible to hold up the process of recruitment for the post of graduate Junior Engineers. It was under these circumstances, Government Resolution dated 18/9/1984 was issued for recruitment on ad-
hoc/temporary basis. As per this GR, the Committee under the Chairmanship of coordinating Superintendent Engineer made appointments of qualified graduate Engineers and the draft of the recruitment Rules was submitted to the MPSC, for the first time, in May, 1986. After the year 1990, there was a ban on the recruitment due to zero base budget. However, in the special drive to fill up the backlog of backward categories, few appointments were made in the year 1990 to 1993, but from qualified graduate engineers as per the GR dated 18/9/1984. As the Recruitment Rules were not finalized, the appointment of graduate engineers was continued even from 1/1/1994 to 31/12/1996 by following the procedure set out in the GR dated 18/9/1984.
So far as the diploma engineers are concerned, so as to ::: Downloaded on - 09/06/2013 15:43:22 ::: 20 encourage them to obtain the B.E. or A.M.I.E. (equivalent to B.E.) qualifications, a scheme was devised with the approval of the MPSC, as per the GR dated 29/11/1984. It was stipulated in the said scheme that those in service diploma holder engineers who are passing either B.E. th or A.M.I.E. Degree, a 3/8 portion of their service as diploma holder is counted and their seniority would be fixed in the cadre of graduate Junior Engineers. The scheme was made applicable from 1/4/1981.
Finally, the recruitment Rules were notified on 16/6/1997 and they were made retrospective with effect from 1/4/1981.
As per the State Government, the graduate Engineers recruited between the period from 2/4/1981 to 16/4/1984 were regularly appointed candidates and as per the GR dated 16/4/1984 they were required to be absorbed in the cadre of Assistant Engineer, Grade-II.
But such a proposal was sent to MPSC for their regularization, it was turned down on the ground that unless the service Rules were framed for regularization, these Engineers could not be absorbed as Assistant Engineer, Grade-II. It is also the case of the State Government that even in the recruitment Rules of 1997 when it came to the regularization of the temporary/ad-hoc appointees, there was a discrimination between the two groups, namely, those who were appointed between 17/4/1984 to 31/12/1993 on one hand and those who were appointed on 1/1/1994 to 31/12/1996 on the other hand. The Government felt the need to give service benefits to these Engineers as a one time measure as they had ::: Downloaded on - 09/06/2013 15:43:22 ::: 21 contributed in the development projects and, therefore, it submitted a proposal to withdraw from the purview of the MPSC the appointment of Assistant Engineer, Grade-II. The Cabinet decision taken to this effect was placed before the Governor of Maharashtra, however, in the meanwhile there was a change in the Government and the proposal finally received approval in February, 2000. The GR dated 1/3/2000 which was subject matter of challenge in O.A. No. 421 of 2000 came to be issued for regularization of these Assistant Engineers, Grade - II.
While coming to the challenge to the impugned Rule and more particularly on the issue of seniority of the ad-hoc Assistant Engineers on regularization, it has been submitted that the Rules have been amended for smooth regularization of the temporary/ad-hoc appointees who came in service during the period from 2/4/1981 to 31/12/1996 and the amended Rule 8 does not suffer from any illegality or unconstitutionality. It has been pointed out that the petitioners came to be appointed in the year 2001 and the appointments made to the post of graduate junior engineers between the period from 1/4/1981 to 16/4/1984 were regular appointments. Similarly, the appointments made in the cadre of Assistant Engineer Grade - II from the diploma holder junior engineers who obtained the A.M.I.E. degree while in service and were given benefit of 3/8 service rendered as diploma holder junior engineers as per GR dated 29/11/1984 and are also required to be treated as regular appointments and the MPSC had given concurrence ::: Downloaded on - 09/06/2013 15:43:22 ::: 22 to the said GR. It is contended that as per Rule 8 of Recruitment Rules of 1997, the temporary appointees in the post of Assistant Engineer, Grade - II were divided in two groups, namely, (a) all those appointed from 17/4/1984 to 31/12/1993 and (b) all those appointed from 1/1/1994 to 31/12/1996. All those who passed in viva voce examination held by the MPSC in the year 1997 were due for regularization at that point itself. Whereas the remaining all those who did not either appear for the examination or pass the said examination are proposed to be covered by the amended Rule. However, the seniority of all these appointees who did not qualify in the viva voce examination held by the MPSC in 1997 as well as in the competitive examination held in the year 1998 will be fixed after qualifying the examination as proposed in the amended Rules and all of them will be shown below the present petitioners in their seniority. Thus, the amended Rule does not act to the prejudice of the petitioners, for the purpose of drawing the seniority list. It is, therefore, urged that when there is no prejudice caused to the petitioners, there is no case made out to interfere with the amended Rule and the allegations that unequals will be treated as equals or vice-a-versa is ill-
founded and imaginary.
9. Affidavit-in-reply has also been filed by the respondent no.3 after the petition was amended so as to challenge the amended Rule 8 and the grounds of defence as set out in the affidavit filed on behalf of the State Government have been reiterated and adopted, including the ::: Downloaded on - 09/06/2013 15:43:22 ::: 23 preliminary point of maintainability of the petitions.
10. It is well settled that the service rules can be amended under the proviso to Article 309 of the Constitution and that, the power to amend these Rules carries with it the power to amend them retrospectively. The power conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done, the exercise of the power cannot be challenged as lacking in authority [ B.S. Vadera vs. Union of India and ors. - AIR 1969 SC 118 and Raj Kumar vs. Union of India and ors. - AIR 1975 SC 1116].
11. Let it be noted at the first instance that from 1/1/1997 onwards no temporary Assistant Engineer came to be appointed on the basis of the GR dated 18/9/1984. The Recruitment Rules of 1997 were notified on 16/6/1997. In the meanwhile, the MPSC had issued a proclamation calling for applications for regular recruitment to the post of Assistant Engineer, Grade-II and the combined written examination was th th held by MPSC on 13 and 14 December, 1998. Final results of the MPSC examination (written and viva voce) was declared on 19/9/1999.
The petitioners had to wait for their appointments and in the meanwhile ::: Downloaded on - 09/06/2013 15:43:22 ::: 24 the GR dated 1/3/2000 which was subject matter of challenge, at the first instance, before this court in Writ Petition No. 2480 of 2000 and subsequently before the tribunal, came to be issued and on account of the stay orders granted to the said GR, the State Government did not act upon the same and we are satisfied that no temporary Assistant Engineer was regularized on the basis of the said GR, while the petitioners challenge to it was pending, either before this court or the tribunal.
As noted earlier, the challenge to the GR dated 1/3/2000 as well as to the Judgment and Order dated 11/9/2003 rendered by the tribunal does not survive after the petition was amended so as to challenge the validity and legality of the amended Rule 8 by the newly amended notification dated 8/7/2009.
12. Clause (h) of Rule 8( amended) states that the persons who do not pass viva-voce as provided in the Clause (f), their services as Assistant Engineer, Grade-II shall be terminated. However, if such persons furnish an undertaking to the effect that they are ready to get absorbed in the cadre of Junior Engineer Group - B (Non Gazetted) with the placement at the bottom of the seniority list of the particular year in which viva-voce test is held, then such persons shall be absorbed in that cadre rather than being terminated. Clause (i) of the new Rule 8 states that the persons who were appointed during the ::: Downloaded on - 09/06/2013 15:43:22 ::: 25 period from 2/4/1981 to 16/6/1997 and who have either retired on superannuation or voluntarily retired or left the above referred post for any other reasons, shall be deemed to be regularized in the cadre of Assistant Engineer, Grade-II. Though this clause covers the temporary appointees upto 16/6/1997, the fact remains that after 31/12/1996 no such temporary engineers were appointed. This clause is providing only for the regularization of those appointees who have either retired on superannuation or voluntarily retired or resigned from the said post. The implementation of this clause does not deal with the seniority of the engineers covered thereunder, as of now. However, if some of these did not pass the viva-voce test conducted in July/August 1997 or did not appear for the said test or did not appear and/or failed in the combined th th competitive written examination conducted by the MPSC on 13 and 14 December, 1998 and/or shown senior to the petitioners in the seniority list to be drawn in future by the State Government or the concerned department, the petitioners' challenge to the same will have to be left open and that too before the appropriate forum. However, as of now, there is no material before us even to doubt that the State Government will or is likely to show the engineers covered by Clause (i) as senior to the petitioners.
13. The graduate/diploma engineers falling within the sweep of Rule 8(a) & (b) are not temporary appointees and in fact they were regularly appointed, whether as graduate or diploma engineers, in ::: Downloaded on - 09/06/2013 15:43:22 ::: 26 Class-III. As per the decision taken on the floor of the house, these engineers covered by Clause (a) of the amended Rule 8 were required to be upgraded as Assistant Engineers, Class-II. At the same time, Rule 8 of the 1997 Rules provided for the regularization of all temporary appointees upto December, 1996. During the period from 1976 to 1983, the graduate engineers came to be appointed by the Selection Boards and by the GR dated 18/6/1983 these boards came to be abolished. All the appointments of graduate/diploma engineers were made in the post of junior engineers. However, the cadre of junior engineers was bifurcated into - (a) Sectional Engineer - Class III for the diploma engineers and (b) Assistant Engineer - Class II. And on this bifurcation, the MPSC came into picture in respect of the Assistant Engineers -
Class II. Awaiting the framing of Recruitment Rules, the State Government resorted to temporary appointments of graduate engineers as per the GR dated 18/9/1984. Hence the petitioners' challenge to the validity of Rule 8(g) and in respect of the seniority of those engineers covered under Clause (d) to (e) of Rule 8, only is required to be examined.
14. Clause (f) of the new Rule 8 is very important to examine the challenge raised by the petitioners on the ground of seniority and it reads as under:-
"(f) The persons who do not pass in the second attempt ::: Downloaded on - 09/06/2013 15:43:22 ::: 27 shall be given one more opportunity by way of last chance to appear for the viva-voce test to be held by the Maharashtra Public Service Commission, to enable him to get their services regularized in the cadre of Assistant Engineer, Grade-II."
The seniority of such persons except those who have passed the combined competitive examination mentioned in Clause (c) and the persons mentioned in Clause (d) shall be fixed in the cadre of Assistant Engineer, Grade-II as per the provisions in the first proviso to sub rule (1) of Rule 4 of the Maharashtra Civil Services (Regulation of Seniority) Rules 1982 and the seniority of such persons mentioned in Clause (d) shall be fixed at the bottom of the directly recruited batch joined in the year 2001.
This clause clearly states that the engineers who are not covered in Clause (c) and covered in Clause (d) shall be fixed at the bottom of the directly recruited batch joined in the year 2001 in the seniority list, by following the provisions of the first proviso to Rule 4(1) of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982.
Whereas sub clause (c) states that the services of persons appointed on temporary basis to the post of Assistant Engineer, Grade II during the period from 17/4/1984 to 31/12/1996 and who had qualified in the viva-voce test held by the Commission in August/September, 1997 and ::: Downloaded on - 09/06/2013 15:43:22 ::: 28 those who qualified in the combined competitive examination held by th th the Commission from the period from 12 to 13 December, 1998 shall be regularized in the cadre of Assistant Engineer, Grade -II from the date of their initial appointment in the cadre. We do not find any sustainable ground to challenge this clause as the regularization contemplated therein is in keeping with Rule 8 of the Recruitment Rules 1997.
15. The first proviso to Rule 4(1) of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 reads as under:-
"Provided that, for the purpose of computing such service, any period of absence from the post, cadre or service due to leave, deputation for training or otherwise or on foreign service, or temporary officiation in any other post shall be taken into account, if the competent authority certifies that the Government servant concerned would have continued in the said post, cadre or service during such period, had he not proceeded on leave or deputation or been appointed temporarily to such other post."
Clause (j) of the new Rule 8 clearly states that the engineers covered therein and whose seniority shall be drawn as per the first proviso to Rule 4(1) of the Maharashtra Civil Services ::: Downloaded on - 09/06/2013 15:43:22 ::: 29 (Regulation of Seniority) Rules, 1982 shall be placed below the directly recruited batch joined in the year 2001, which includes the petitioners.
Thus the regularization of the engineers covered under Clause (d) of the new Rule 8 as well as drawing of their seniority does not act to the prejudice of the petitioners. Obviously, as of now, there is no reason to believe that any different provisions other than Rule 4(1) of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 will be followed by the Government in respect of the engineers covered under Clause (e) and (f) while drawing their seniority and undoubtedly all these engineers who would be regularized under Clause (e) and (f) are bound to be shown juniors to those who are covered under Clause (d) and there is no material to believe that the Government will deviate from this presumption as of now. Hence, in our considered opinion, there is no material before us presently to even prima facie believe that the underlined portion of Clause (g) of the new Rule 8 is likely to act to the detrimental of the petitioners in respect of their seniority and if their seniority is not going to be affected by the regularization so proposed under the new Rule 8, there is no reason to entertain the challenge to the said Rule.
16. We have limited the scope of our considerations in these petitions only on the issue of seniority and not to the issue of regularization of the temporary appointees and in any case there is not much of a serious challenge to the decision for regularization of these ::: Downloaded on - 09/06/2013 15:43:22 ::: 30 temporary appointees who came to be appointed prior to 1/1/1997. On the preliminary points regarding the maintainability of the petitions so as to challenge the validity of the amended Rules, we wish to state that the Rules have been amended while the petitions were pending and we have allowed the amendment to the petition memo so as to challenge the amended Rules. It is also pertinent to note that the petitions were remanded for fresh hearing by the Apex Court and by the amended Rules, nothing further survived in the challenge raised in the petitions to the GR dated 1/3/2000 and the judgment and order dated 11/9/2003 rendered by the tribunal. Asking the petitioners to go back to the tribunal to challenge the validity of the amended Rule 8 would have resulted in a multiplicity of litigation, which ought to be prevented. At the same time, the uncertainty about the validity of the amended Rule ought to be settled at the earliest possible and in any case, as we have noted earlier, as and when the State Government draws the seniority list based on the amended Rule 8 and if the petitioners are aggrieved by the same, they have to take recourse to file an application under the Administrative Tribunals Act, at the first instance and we cannot presume, at this stage, that the State Government will act contrary to the amended Rule 8 and show the petitioners juniors to the engineers who are sought to be regularized under Clauses (d) to (f) of the said Rule.
17. In the premises, these petitions fail and the same are ::: Downloaded on - 09/06/2013 15:43:22 ::: 31 hereby dismissed. We hold that the amended Rule 8 does not cause any prejudice, on the point of seniority, to the petitioners and if any of them are shown in the seniority list, to be drawn by the State Government, as juniors to the engineers to be absorbed in Clauses (d),
(e) and (f) of the said Rule, the petitioners are at liberty to approach the Maharashtra Administrative Tribunal. Rule discharged. Costs in cause.
18. Civil Application Nos. 1429 of 2007, 439 of 2009 and 1889 of 2009 do not survive and stand disposed as such.
(SMT. ROSHAN DALVI,J.) (B. H. MARLAPALLE,J.)
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