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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
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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.
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Judgment reserved on 18 December, 2009
Judgment declared on 17th March, 2010.
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J 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
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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
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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
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Engineers Class-II was sought to be changed. The summer
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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
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7can 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
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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,
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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
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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
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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
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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:
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Provided 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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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27shall 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
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those who qualified in the combined competitive examination held by
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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
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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
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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
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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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