Bombay High Court High Court

Sunita Daulatrao Patil And Ors vs The State Of Maharashtra And Ors on 17 March, 2010

Bombay High Court
Sunita Daulatrao Patil And Ors vs The State Of Maharashtra And Ors on 17 March, 2010
Bench: B.H. Marlapalle, R. S. 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



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                                              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.

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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
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

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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

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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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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

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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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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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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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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

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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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(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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