{"id":224827,"date":"2010-03-17T00:00:00","date_gmt":"2010-03-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunita-daulatrao-patil-and-ors-vs-the-state-of-maharashtra-and-ors-on-17-march-2010-3"},"modified":"2018-08-19T23:18:14","modified_gmt":"2018-08-19T17:48:14","slug":"sunita-daulatrao-patil-and-ors-vs-the-state-of-maharashtra-and-ors-on-17-march-2010-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunita-daulatrao-patil-and-ors-vs-the-state-of-maharashtra-and-ors-on-17-march-2010-3","title":{"rendered":"Sunita Daulatrao Patil And Ors vs The State Of Maharashtra And Ors on 17 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sunita Daulatrao Patil And Ors vs The State Of Maharashtra And Ors on 17 March, 2010<\/div>\n
Bench: B.H. Marlapalle, R. S. Dalvi<\/div>\n
                                               1\n\n    pdp\n                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY         \n                               CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                                \n                               WRIT PETITION NO. 7415 OF 2003\n                                            WITH\n\n\n\n\n                                                        \n                             CIVIL APPLICATION NO. 1429 OF 2007\n                                            AND\n                             CIVIL APPLICATION  NO. 439 OF 2009\n\n\n\n\n                                                       \n                                            AND\n                             CIVIL APPLICATION NO. 1889 OF 2009\n\n\n\n\n                                                  \n          1. Sunita Daulatrao Patil and ors.             .. Petitioners\n\n                       Vs.\n                                   \n          1. The State of Maharashtra and ors.           .. Respondents\n                                  \n                                          WITH\n                              WRIT PETITION NO. 6619 OF 1998\n              \n\n\n          1. Shyam Jahagirdar and ors.                   .. Petitioners\n           \n\n\n\n                       Vs.\n\n\n\n\n\n          1. The State of Maharashtra and anr.           .. Respondent\n\n                                          WITH\n                              WRIT PETITION NO. 7414 OF 2003\n\n\n\n\n\n          1. Shri G. P. Aparajit and ors.                .. Petitioners\n\n                       Vs.\n\n          1. The State of Maharashtra and ors.        .. Respondents\n                                             WITH\n                            WRIT PETITION NO. 8246 OF 2003\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 15:43:23 :::\n                                              2\n\n\n\n    1. Milind Shashikant Pande and ors.                     .. Petitioners\n\n\n\n\n                                                                                    \n                  Vs.\n\n\n\n\n                                                            \n    1. Smt. Sunita Daulatrao Patil and ors.\n\n                                    WITH\n\n\n\n\n                                                           \n                        WRIT PETITION NO. 8607 OF 2003\n\n    The State of Maharashtra                                .. Petitioner\n\n\n\n\n                                                \n                  Vs.          \n    Sunita D. Patil and ors.                                ..  Respondents\n                              \n    Mr. A. V. Anturkar i\/by Mr. V.S. Talkute for petitioners in W.P. No. 7415 of \n    2003.\n    Mr. N.V. Bandiwadekar for petitioner No.3 in W.P. No. 7414 of 2003.\n        \n\n\n    Mr.   P.M.   Pradhan,   Spl.   Counsel   with   Mr.   S.R.   Nargolkar,   AGP   for \n    Respondent No.1 in W.P. No. 7415 of 2003, for Respondent Nos.1 and 2 \n     \n\n\n\n    in W.P. No. 6619 of 1998, for Respondent No. 1 in W.P. No. 7414 of \n    2003, for Respondent Nos. 5 and 6 in W.P. No. 8246 of 2003 and for \n    petitioner in W.P. No. 8607 of 2003.\n\n\n\n\n\n    Mr. S.R. Atre, for MPSC.\n    Mr. P.K. Dhakephalkar, Senior Advocate i\/by Mr. N.V. Bandiwadekar for \n    respondent nos.3 and 6 in W.P. No. 7415 of 2003.\n    Mr. A.R. Pitale for respondent no.5 in W.P. No. 7415 of 2003.\n\n\n\n\n\n                                  CORAM : B.H. MARLAPALLE &\n                                                  SMT. ROSHAN DALVI,  JJ.\n<\/pre>\n
                                                 th
\n                  Judgment reserved on   18  December, 2009<\/p>\n
                  Judgment declared on   17th March, 2010.\n<\/p>\n
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\n                                              3<\/span><\/p>\n
    J U D G  M E N T ( Per  B. H. Marlapalle, J.)<\/p>\n
    1.             These petitions  challenge the   judgment   and order dated <\/p>\n
    11.9.2003   rendered   by   the   Maharashtra   Administrative   Tribunal   in <\/p>\n
    Original Application No. 421 of 2003, which was   filed by Mrs. Sunita <\/p>\n
    Daulatrao Patil and three others.\n<\/p>\n
    2.<\/p>\n
                   Brief facts, leading to these petitions, are  set out as under:\n<\/p>\n
              i.            The Maharashtra  Legislative Assembly resolved on <\/p>\n
              10.3.1981 that the  degree holders  Junior Engineers-Class-III <\/p>\n
              who   were   appointed     before   April,   1981     should   be   given <\/p>\n
              gazetted   officer’s   status   and   consequently,   the   cadre     of <\/p>\n
              Assistant   Engineer,   Grade-II,   Class-II   was     created   on <\/p>\n
              19.3.1981  for direct recruitment by Maharashtra Public Service
\n                                                                                           st
\n              Commission  (MPSC) for  degree  holder    Engineers   w.e.f.  1
\n                                       th
\n              April,     1981.     On   16   April,   1984,   a  Government   Resolution <\/p>\n
              came to be issued giving effect to his decision. However, on <\/p>\n
              18.9.1984,   the   Government   of   Maharashtra   issued   a <\/p>\n
              Government Resolution  prescribing procedure to be  followed <\/p>\n
              for     appointment   of   Assistant   Engineers   on   ad   hoc     and <\/p>\n
              temporary basis for a period of four months to one year, until <\/p>\n
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\n                                    4<\/span><\/p>\n
     the   regular     Recruitment   Rules   were   framed   by   the   State <\/p>\n
     Government   such   engineers   on       ad   hoc   temporary   basis <\/p>\n
     came   to   be   appointed     and   on   19.7.1993,     the   State <\/p>\n
     Government   issued   a   circular   providing   for     a   committee <\/p>\n
     consisting   of     Chief     Engineer   and   two   Superintendent <\/p>\n
     Engineers.\n<\/p>\n
     ii.          For   the   first   time   on   25.12.1996,   the   MPSC <\/p>\n
     advertised for  direct recruitment of Assistant Engineers- Class <\/p>\n
     –   II   through   open     competitive   examination   and   the <\/p>\n
     applications were required to be submitted by 25.1.1997. This <\/p>\n
     advertisement  came   to  be  challenged   before  the  Mahashtra <\/p>\n
     Administrative Tribunal (MAT) by some of the ad hoc Assistant <\/p>\n
     Engineers, Class-II  on  the ground  that  the MPSC  could  not <\/p>\n
     have started recruitment process of  gazetted status engineers <\/p>\n
     unless   the   Recruitment   Rules     were     framed   by   the   State <\/p>\n
     Government, but  on  27.1.1997, the  Tribunal  disposed off  the <\/p>\n
     said  application  by  directing  the State  Government  to frame <\/p>\n
     Rules.   Review   petition   No.   13   of   1997   was   decided   on <\/p>\n
     22.4.1997, giving time of two months to the State Government <\/p>\n
     to frame   the Recruitment Rules and on 16.6.1997, it framed <\/p>\n
     the Recruitment Rules.   Rule-8 of the  said Rules provided for <\/p>\n
     procedure to be followed for the regularization of the ad-hoc <\/p>\n
     Assistant Engineers, Class-II.  In July\/August, 1997, the MPSC <\/p>\n
     conducted  only  an oral examination for the ad hoc Assistant <\/p>\n
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\n                                     5<\/span><\/p>\n
     Engineers who had  completed minimum  three years service <\/p>\n
     on 31.12.1996, and  509 of such  ad-hoc Engineers  appeared <\/p>\n
     for the said examination and out of them, 491 passed the oral <\/p>\n
     examination, where as remaining     14 failed.   No steps were <\/p>\n
     taken   by   the     Government     to   regularize   these   495   ad   hoc <\/p>\n
     engineers  on their passing of the oral examination conducted <\/p>\n
     by the MPSC as per Rule-8 of the Recruitment Rules 1997.<\/p>\n
\n\n     iii.          A combined written examination was conducted by \n\n\n\n\n                                         \n                             th      th\n<\/pre>\n
     the MPSC  on 13   and 14   December, 1998 and examinees <\/p>\n
     were     those   who   had   applied   directly   to   the   MPSC <\/p>\n
     advertisement   as   well   as   those   ad   hoc   Assistant <\/p>\n
     Engineers,Class II who  had less than  three   years service as <\/p>\n
     on 31.12.1996. At least 97% of these   ad-hoc engineers who <\/p>\n
     had less than three years service on 31.12.1996, failed in that <\/p>\n
                                                                 th
\n     examination as per the result published   on 20   April, 1999.\n<\/p>\n
     Successful candidates were called   for viva voce which was <\/p>\n
     conducted   in     May-July,   1999   and     the   final   results   were
\n                        th
\n     published  on 19  Sept. 1999.\n<\/p>\n
     iv.            While the  select  list was prepared by the  MPSC <\/p>\n
     and was pending for appointment order to be issued by the <\/p>\n
     Government,   the   Government     issued     a   Resolution   dated <\/p>\n
     1.3.2000 amending Rule-8 of the Recruitment Rules 1997 and <\/p>\n
     the   procedure   for   regularization   of   the   ad   hoc   Assistant <\/p>\n
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\n                                      6<\/span><\/p>\n
     Engineers Class-II  was sought to be changed. The  summer
\n                                                                                     th
\n     session of the  Legislative Assembly  had commenced  on 13<\/p>\n
     March, 2000 and the  Government Resolution  dated 1.3.2000 <\/p>\n
     was not placed before the Assembly,  as required under Article <\/p>\n
     320(5) of the Constitution of India, as per  the petitioners. This <\/p>\n
     resolution   came   to     challenged   in   Writ   Petition   No.   2480   of <\/p>\n
     2000  which was filed on 9.5.2000 and on the same day,  the <\/p>\n
     learned Vacation Judge  had stayed the operation of the  said <\/p>\n
     resolution.   However, on 6.3.2003,   the Writ Petition came to <\/p>\n
     be disposed off with liberty to the Petitioners to approach the <\/p>\n
     MAT and this order dated 6.3.2003 came to be challenged in <\/p>\n
     Special Leave Petition (Civil) No. 5583 of 2003 and the SLP <\/p>\n
     was dismissed on 10.4.2003. The petitioners then  approached <\/p>\n
     the Tribunal by  filing Original Application No.  421 of 2003 and <\/p>\n
     after hearing all the parties concerned, the Original Application <\/p>\n
     was decided on 11.9.2003. The operative part of the said order <\/p>\n
     reads as under:\n<\/p>\n
                        “The  Original Application is partly allowed.\n<\/p><\/blockquote>\n
                The Government Resolution dated 1.3.2000 is partly <\/p>\n
            held to be invalid and set aside. It is invalid  in respect of <\/p>\n
            507   posts   of   Assistant   Engineers   Grade-II   (Class-II) <\/p>\n
            (Civil) contemplated by Group “B” and in respect of 399 <\/p>\n
            posts of Assistant Engineers   Grade-II (Class-II) (Civil) <\/p>\n
            contemplated  by  Group “C”.  It is  made clear  that they <\/p>\n
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\n                                                7<\/span><\/p>\n
                        can be regularized  following the Rules of 1997.\n<\/p><\/blockquote>\n
                           The rest of the  G.R. is  upheld.\n<\/p><\/blockquote>\n
                           O.A. Disposed off accordingly.”<\/p><\/blockquote>\n
                    The above  order    passed by  the    Tribunal       came  to  be <\/p>\n
    challenged in   this group of petitions and   on 26.7.2006, the   petitions <\/p>\n
    were partly allowed. The  impugned order, passed by the Tribunal, was <\/p>\n
    set aside and Original Application No. 421 of 2003 was remanded for <\/p>\n
    fresh decision in accordance with  law, requesting the tribunal to decide <\/p>\n
    it as early as possible, preferably within  four months.  Interim order of <\/p>\n
    stay  to the operation of the Government Resolution dated 1.3.2000 was <\/p>\n
    continued for  two more weeks.  This order dated 26.7.2006 came to be <\/p>\n
    challenged   by     some   of   the     ad   hoc     appointees   in   Special   Leave <\/p>\n
    Petition (Civil) No. 12960 of 2006.   On   9.10.2006, the Supreme Court <\/p>\n
    was   pleased   to   set   aside   the   order   dated   26.7.2006   passed   by   this <\/p>\n
    Court, with a request to dispose off these petitions within three months.\n<\/p>\n
    3.             During the pendancy  of these petitions , the Government of <\/p>\n
    Maharashtra   issued   a   Notification     on   8.7.2009   and       published   the <\/p>\n
    Assistant   Engineers   (Civil)   (Grade-II)         in   Maharashtra   Services   of <\/p>\n
    Engineers, Group-B Recruitment (Amendment) Rules, 2009.  Under the <\/p>\n
    said Rules, the  State Government  amended  Rule-8 of the Recruitment <\/p>\n
    Rules,1997,   in place of   the impugned Government Resolution dated <\/p>\n
    1.3.2000   and     immediately   thereafter,   the   petitioner   took   out     Civil <\/p>\n
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\n                                                   8<\/span><\/p>\n
    Application No. 1887 of 2009 seeking amendment in the petition so as <\/p>\n
    to challenge the amended Rule 8 of the Recruitment Rules for providing <\/p>\n
    regularization   of   the   Assistant   Engineers   appointed   on     ad   hoc   and <\/p>\n
    temporary basis.   By our order   dated 18.9.2009, the said application <\/p>\n
    was   allowed   and   thus   the   petitioners     have   challenged,   by   way   of <\/p>\n
    additional   prayers,   the   validity   of   the   amended       Rule-8,   in   the <\/p>\n
    Recruitment Rules-1997.\n<\/p>\n
    4.                There is no dispute between the parties that the Government <\/p>\n
    Resolution   dated 1.3.2000 was not acted upon   at any time and on <\/p>\n
    amendment   of   the     Recruitment   Rules,   on   8.7.2009,     the     said   GR <\/p>\n
    ceased to exist and therefore,  the challenge to the said G.R. as well as <\/p>\n
    to the order passed by the Tribunal came to an end.  We are, therefore, <\/p>\n
    required to examine only  the challenge to the amended  Rule 8 of the <\/p>\n
    Recruitment Rules, providing for   the regularization of the ad-hoc    and <\/p>\n
    temporary appointed     Assistant Engineers, Grade-II,   in this group of <\/p>\n
    petitions.\n<\/p>\n
    5.                We     reproduce   herein   below   Rule     8   of   the   Recruitment <\/p>\n
    Rules, 1997 and  the very same rule, amended in the  year 2009 which <\/p>\n
    is under challenge, as under:\n<\/p>\n
                 Rule-1997.<\/p>\n
                 8.           Notwithstanding   anything   contained   in   Rule   3,   the
\n                                                                                                st
\n                 temporary   appointments   made   to   the   posts   till   the   31<\/p>\n
                 December, 1996, may be regularized in the following manner, <\/p>\n
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\n                                  9<\/span><\/p>\n
     namely:\n<\/p>\n
     (a)        The   persons   who   have   completed   minimum   three <\/p>\n
                                                    st
\n     years of continuous  service as  on the 31   December, 1996, <\/p>\n
     and have satisfied the requirements of qualification and age <\/p>\n
     limit mentioned in  rule 3, at the time of their appointment, shall <\/p>\n
     have to qualify in viva-voce or limited Competitive examination <\/p>\n
     to be held by the commission during 1997-98.\n<\/p>\n
     (b)        Services of those persons   who will qualify in such <\/p>\n
     examination will be regularized.\n<\/p>\n
     (c)        The seniority of such qualified persons shall be fixed <\/p>\n
     as per the existing rules notified vide Government Notification, <\/p>\n
     General Administration Department, No. SRV 1076\/XII, dated
\n       st
\n     21  June, 1982 regarding fixation of seniority.\n<\/p>\n
     (d)        The services of persons who do not qualify in such <\/p>\n
     examination shall be  terminated by the Government.<\/p>\n
\n\n     (e)        The persons who have been appointed  to the posts \n\n\n\n\n\n                   st                                         st\n<\/pre>\n
     on or  after 1  January, 1994 but on or before 31  December, <\/p>\n
     1996 and who possess the qualification mentioned in rule 3(ii) <\/p>\n
     shall, in   relaxation if necessary of the age limit prescribed in <\/p>\n
     Rule 3(i), be required to get selected in the first attempt in the <\/p>\n
     regular combined competitive examination to be held by the <\/p>\n
     commission   during   1997-98.   Service   of   such   persons   who <\/p>\n
     have not been selected in the above competitive examination <\/p>\n
     shall be terminated by the Government, and the seniority  of <\/p>\n
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\n                                     10<\/span><\/p>\n
     selected persons shall be fixed in accordance with the   rules
\n                                                                          st
\n     mentioned   in   Government   Notification,   dated   the   21   June, <\/p>\n
     1982, mentioned in rule 8(c).\n<\/p>\n
     Amended Rule- 2009.\n<\/p>\n
     “8.     Notwithstanding   anything   contained   in     Rule   3,   the
\n                                                         th
\n     appointments made to the posts till the 16   June, 1997, shall <\/p>\n
     be regularized in the following manner, namely:-\n<\/p>\n
     (a)   The persons appointed on regular basis during the period <\/p>\n
                  nd                          th
\n     from the 2   April, 1981 to the 16   April, 1984 to the post of <\/p>\n
     Graduate Junior Engineers (Class-III) either through the State <\/p>\n
     Selection   Board   or   from   the       candidates   who     have   given <\/p>\n
     bonds   for     serving   in   Government   service   as   per   the   then <\/p>\n
     prescribed procedure for appointment, shall have to pass viva-\n<\/p>\n
     voce   test that shall be the qualifying examination, to be held <\/p>\n
     by   the   Commission   during   the   period   2009-2010   or <\/p>\n
     immediately thereafter, to enable them to be absorbed in the <\/p>\n
     cadre of Assistant Engineer, Grade II (Junior Gazetted   Class-\n<\/p>\n
     II),   created   for   Graduate   Junior   Engineers   vide   Government <\/p>\n
     Resolution,   Irrigation   Department   No.   CDS   1582\/158(215)\/
\n                               th
\n     EST-(10), dated the 16  April, 1984.\n<\/p>\n
     (b)       The   Diploma   holder   Junior   Engineers   regularly <\/p>\n
     appointed in Class-III post   and who have  obtained A.M.I.E.\n<\/p>\n
     (Equivalent to B.E. Degree) or B.E. Degree while in service <\/p>\n
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\n                                            11<\/span><\/p>\n
                                                     th
\n     have been given benefit of 3\/8  of service rendered as Junior
\n                                                           st                         th
\n     Engineer, during the period from the 1  April, 1981 to 16  June, <\/p>\n
     1997,   in   the   light   of   the   provisions   of   the   Government <\/p>\n
     Resolution,   Irrigation   Department,   No.   S.L.S.   2681\/1273\/
\n                                                th
\n     (500)\/EST(8), dated the 29   November, 1984. Such persons <\/p>\n
     shall have to pass viva-voce test that shall be the qualifying <\/p>\n
     examination, to be held by the Commission during 2009-2010 <\/p>\n
     or immediately thereafter, to enable them to be absorbed in the <\/p>\n
     cadre   of   Assistant   Engineer,   Grade   II,   vide   Government
\n                          ig     th
\n     Resolution dated 16   April, 1984.\n<\/p>\n
     (c)          Services of persons appointed on temporary basis to <\/p>\n
     the post of Assistant Engineer, Grade-II, during the period from
\n             th                             st
\n     the   17   April,   1984   to   21   December,   1996   and   who   have <\/p>\n
     already   qualified   in   viva   voce   test   held   by   the   Commission <\/p>\n
                    th                                nd
\n     from the 7   August, 1997 to 2   September, 1997 and those <\/p>\n
     who have qualified in the combined competitive examination <\/p>\n
                                                                                               th
\n     held   by   the   Commission   during   the   period   from   the   12
\n                                      th
\n     December, 1998 to 13  December, 1998 shall be regularized in <\/p>\n
     the cadre of Assistant Engineer, Grade-II from the date of their <\/p>\n
     initial appointment in the cadre of Assistant Engineer, Grade-II.\n<\/p>\n
                                                                                               th\n<\/p>\n
     (d)          The   persons   appointed   during   this   period   from   17
\n                            st
\n     April, 1984 to   31   December, 1996, and not qualified in the <\/p>\n
     above   said   viva-voce   test   or   Combined   Competitive <\/p>\n
     Examination as the case may be held by the Commission shall <\/p>\n
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\n                                      12<\/span><\/p>\n
     have   to   pass   in   the   viva-voce   test   to   be   held   by   the <\/p>\n
     Commission   during   the   period   2009-2010   or   immediately <\/p>\n
     thereafter, to enable them to get regularized in the cadre of <\/p>\n
     Assistant Engineer, Grade-II.\n<\/p>\n
     (e)        Persons who do not pass such viva-voce test shall be <\/p>\n
     given second opportunity to appear for the   viva-voce test to <\/p>\n
     be   held   by   the   Maharashtra   Public   Service   Commission,   to <\/p>\n
     enable them to get their services regularized in the cadre of <\/p>\n
     Assistant Engineer, Grade-II.\n<\/p>\n
     (f)        The persons who do not pass  in the second attempt <\/p>\n
     shall be given one more opportunity by way of last chance to <\/p>\n
     appear for the viva-voce test to be held by the Maharashtra <\/p>\n
     Public   service   Commission,   to   enable   them   to   get   their <\/p>\n
     services regularized in the cadre of Assistant Engineer, Grade-\n<\/p>\n
     (g)        The   services   of   persons   mentioned   in   clauses   (a), <\/p>\n
     (b), (d), (e) and (f) of this rule, who pass the viva-voce  test to <\/p>\n
     be held by the Commission during the period   2009-2010 or <\/p>\n
     immediately   thereafter,   shall   be   regularized   in   the   cadre   of <\/p>\n
     Assistant     Engineer,   Grade-II,   from   the   date   of     their   initial <\/p>\n
     appointment, either in the cadre of Graduate Junior Engineers <\/p>\n
     or Assistant Engineer, Grade II.\n<\/p>\n
     (h)        The persons who do not pass viva-voce as provided <\/p>\n
     in the clause (f), their services as Assistant Engineer, Grade-II <\/p>\n
     shall be terminated:\n<\/p>\n
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\n                                              13<\/span><\/p>\n
                            Provided that, if such persons give an undertaking to <\/p>\n
              the effect that, they are ready to get absorbed in the cadre of <\/p>\n
              Junior  Engineer,  Group-B  (Non  Gazetted)    ( which  is   below <\/p>\n
              that of Assistant Engineer, Grade II) with the  placement at the <\/p>\n
              bottom of the seniority list of the particular year in which viva-\n<\/p><\/blockquote>\n
              voce test is held, then such persons shall be absorbed in that <\/p>\n
              cadre.<\/p><\/blockquote>\n
\n\n              (i)           The persons who were appointed during the period \n\n\n\n\n                                                  \n                       nd                     th\n<\/pre>\n
              from 2   April, 1981 to 16   June, 1997 and who have either <\/p>\n
              retired on superannuation or voluntarily retired or left the above <\/p>\n
              referred   post   for  any   other   reasons,   shall   be   deemed   to   be <\/p>\n
              regularized in the cadre of Assistant Engineer,  Grade-II.\n<\/p><\/blockquote>\n
              (j)           The seniority of such persons except  those who have <\/p>\n
              passed   combined   competitive   Examination   mentioned   in <\/p>\n
              clause (c) and the persons mentioned in clause (d), shall be <\/p>\n
              fixed in the cadre of Assistant Engineer, Grade II, as per the <\/p>\n
              provisions of the first proviso to sub-rule (1)  to Rule 4 of the <\/p>\n
              Maharashtra   Civil   Services   (Regulation   of   Seniority)   Rules, <\/p>\n
              1982 and the Seniority of such persons mentioned in clause <\/p>\n<\/blockquote>\n
              (d) shall be fixed at the bottom of the directly recruited  batch <\/p>\n
              joined in the year 2001.”\n<\/p><\/blockquote>\n
    6.            The petitioners   are     the direct appointees through MPSC.\n<\/p>\n
    The crux of the petitioners’ grievance is regarding  their seniority and   it <\/p>\n
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\n                                                14<\/span><\/p>\n
    is contended that the Amended Rule 8 is unconstitutional as under the <\/p>\n
    said Rule, ad-hoc appointees   who were unsuccessful in the selection <\/p>\n
    by the MPSC in the year 1997-98, would be ranked  senior to them en-\n<\/p>\n
    mass, as  the regularization under it is sought to be made form the  date <\/p>\n
    of initial  appointment  on ad hoc basis.\n<\/p>\n
           Mr. Anturkar,  the learned counsel for the appellants,   referred to <\/p>\n
    the amended Rule 8(g) and submitted that the petitioners substantial <\/p>\n
    challenge is to the validity of the said Rule and mainly to the underlined <\/p>\n
    portion.   For ready reference, Rule 8(g) is once again reproduced as <\/p>\n
    under:\n<\/p>\n
               (g)        The   services   of   persons   mentioned   in   clauses   (a), <\/p>\n<\/blockquote>\n
               (b), (d), (e) and (f) of this rule, who pass the viva-voce  test to <\/p>\n
               be held by the Commission during the period   2009-2010 or <\/p>\n
               immediately   thereafter,   shall   be   regularized   in   the   cadre   of <\/p>\n
               Assistant     Engineer,   Grade-II,   from   the   date   of     their   initial <\/p>\n
               appointment, either in the cadre of Graduate Junior Engineers <\/p>\n
               or Assistant Engineer, Grade II.<\/p><\/blockquote>\n
           In short, the challenge  by the petitioners is to the regularization of <\/p>\n
    the  temporary appointees and mainly under Rule 8(d) to (f) and that too <\/p>\n
    from   the  date   of  their   initial   appointment,  as   even  those   who  do   not <\/p>\n
    become eligible for regularization  in terms of clauses (a) and (b) of Rule <\/p>\n
    8 are likely  to stand senior to the petitioners, if such temporaries have <\/p>\n
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\n                                                 15<\/span><\/p>\n
    been   appointed   prior   to   the   date   of     appointment   of   the   petitioners, <\/p>\n
    though they were never regularly selected,  they failed in the competitive <\/p>\n
    examinations   conducted   by   the   MPSC     in   1997-98   and   their <\/p>\n
    regularization would be   contrary   to the law laid down   in the case of <\/p>\n
    Umadevi   (supra).       It   was   further   urged   that   when   the   temporary <\/p>\n
    appointees were given an opportunity   as per the Recruitment Rules, <\/p>\n
    1997,   they     either   did   not   appear   for   the   examinations     or   were   not <\/p>\n
    successful in the same.   In terms of the said old Rule 8, they   were <\/p>\n
    required to be terminated   from service and  the Government did not act <\/p>\n
    as per the Rules of 1997 and retained them in service.   Such illegally <\/p>\n
    continued temporary   appointees   can not be treated     senior   to the <\/p>\n
    petitioners and the   Government is       rewarding these   unsuccessful <\/p>\n
    candidates   by   regularizing   them   from   the   date   of   their   initial <\/p>\n
    appointment,  urged the learned counsel.\n<\/p>\n
                   It   was   also   submitted   by   the   learned   counsel   that   the <\/p>\n
    Government   has   not   exercised   its   powers   under   Article   309   of   the <\/p>\n
    Constitution     bona   fide   and   the   impugned   amendment   has   been <\/p>\n
    undertaken during the pendency of the petition and solely to frustrate <\/p>\n
    the challenge to the decision rendered by the tribunal.  He also alleged <\/p>\n
    that the GR dated 1\/3\/2000  challenged  before the tribunal was acted <\/p>\n
    upon in some selected cases despite the stay granted to the operation <\/p>\n
    of the said GR.  By referring to the information made available under the <\/p>\n
    Right to Information Act, it was submitted that in one project alone, the <\/p>\n
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\n                                                   16<\/span><\/p>\n
    Superintending Engineer appointed as many as 26 graduate engineers <\/p>\n
    on temporary basis for a period of four months during the period from <\/p>\n
    March   to   July   1996   and   all   of   them   came   to   be   continued   all   along <\/p>\n
    without   any   selection   test,   and   all   these   back-door   entrants     in   the <\/p>\n
    service   are   proposed   to   be   senior   to   the   petitioners.     The   amended <\/p>\n
    Rule, therefore, is in breach of the guarantee under Article 14 of the <\/p>\n
    Constitution in as much as it seeks to treat unequals as not only equals <\/p>\n
    but more equals. It was urged that the legal position as settled by a <\/p>\n
    catena   of     decisions   of   the   Supreme   Court   does   not   permit   the <\/p>\n
    engineers to be regularized under Clauses (d) to (f) of the amended <\/p>\n
    Rule 8 to be treated as seniors to the petitioners.\n<\/p>\n
    7.            The   Government   of   Maharashtra,   through     the   Water <\/p>\n
    Resources Department,  has filed affidavit in reply and has opposed the <\/p>\n
    amended petitions  on  preliminary  points  as  well  as  on  merits.  It  has <\/p>\n
    been   contended   that   the   petitions   are   pre-mature,   inasmuch   as,   the <\/p>\n
    regularization as contemplated under clauses (d) to (f) of Rule 8 has not <\/p>\n
    yet been effected and therefore, there is no cause of action as of now to <\/p>\n
    draw   a seniority list of such   regularized Assistant Engineers. It was <\/p>\n
    submitted that as and when such seniority list is published on the basis <\/p>\n
    of   the   regularization   in   terms   of   clauses   (d)     to   (f)   of   Rule   8,   the <\/p>\n
    petitioners,   if   aggrieved,   will   have   to       submit   representations   to   the <\/p>\n
    competent authority and thereafter approach the MAT.   Reliance was <\/p>\n
    also placed on the decision  of the  Seven Judge Bench in the case of <\/p>\n
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\n                                                 17<\/span><\/p>\n
    L.Chandrakant   Vs.   Union   of   India   and   others,   1997   (3)   SCC,   361  in <\/p>\n
    support of the contentions that the challenge to the validity of  Rule 8(g) <\/p>\n
    is required to be,  at the first  instance, taken up before the  Tribunal and <\/p>\n
    it cannot be entertained directly before this Court   and   the petitioners <\/p>\n
    are required to be   relegated   to the remedy   under the Administrative <\/p>\n
    Tribunals   Act   even   to   challenge     the       Constitutional   validity   of     the <\/p>\n
    amended Rule 8.\n<\/p>\n
    8.                             The reply to the amended petition filed by the <\/p>\n
    Joint Secretary in the Water Resources Department states that prior to <\/p>\n
    1981, the cadre of Junior Engineers was a single cadre comprising of <\/p>\n
    both   the   degree   as   well   as   diploma   holder   Engineers.   However,   the <\/p>\n
    seniority list of graduate Junior Engineers and diploma Junior Engineers <\/p>\n
    was separately maintained from the year 1970 onwards and a separate <\/p>\n
    quota for promotion to the post of Deputy Engineer for graduate Junior <\/p>\n
    Engineers and diploma Junior Engineers  was maintained.  The post of <\/p>\n
    Junior Engineer was in Class-III and is the basic and elementary post at <\/p>\n
    the field level   for both the departments i.e. Irrigation Department and <\/p>\n
    Public Works Department. The appointments to these posts from the <\/p>\n
    degree as well as diploma holders were earlier made by the Committee <\/p>\n
    under the Chairmanship of the coordinating Superintendent Engineers <\/p>\n
    from the year 1961 to 1976. During the year 1976, the State Selection <\/p>\n
    Board became functional.  By Government Resolution dated 28\/4\/1978 it <\/p>\n
    was decided to obtain a bond from the graduate engineers and diploma <\/p>\n
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\n                                                18<\/span><\/p>\n
    engineers at the time of their admission in the Government Engineering <\/p>\n
    and   Polytechnic   Colleges   to   the   effect   that   on   their   completion   of <\/p>\n
    graduation\/diploma, they will serve in the Government services for at <\/p>\n
    least 4 years for graduates and 2 years for diploma holders. During the <\/p>\n
    years   1976   to   1983   diploma\/degree   holder   Junior   Engineers   were <\/p>\n
    recruited by the State Selection Boards and also from the candidates <\/p>\n
    who   had   given   Bonds   to   serve   in   Government   services   and   such <\/p>\n
    candidates were recruited by the Committee under the Chairmanship of <\/p>\n
    coordinating   Superintendent   Engineer\/Chief   Engineer   along   with <\/p>\n
    principals of Engineering\/Polytechnic Colleges and the representative of <\/p>\n
    Director, Technical Education as members of the said Committee.   On <\/p>\n
    18\/6\/1983, the Selection Board came to be abolished.  In order to have <\/p>\n
    a   betterment   in   the   service   conditions   of   the   graduate\/diploma <\/p>\n
    engineers, the Government approved a proposal to upgrade their post to <\/p>\n
    Class – II and accordingly such an announcement was made on the <\/p>\n
    floor of the Legislative Assembly on 10\/3\/1981.  The Government issued <\/p>\n
    the GR dated 16\/4\/1984 so as to bifurcate the cadre of Junior Engineers <\/p>\n
    in two separate cadres i.e. Sectional Engineers for diploma holders with <\/p>\n
    diploma   of   three   years   duration,   and   seven   years   for   the   holders   of <\/p>\n
    diploma of two years duration and 10 years  for the holders of diploma of <\/p>\n
    less than two years duration.     Whereas the degree holder Engineers <\/p>\n
    were   designated     as   Assistant   Engineer,   Grade   –   II   by   forming   new <\/p>\n
    cadre   for   such   employees.     Both   these   cadres   were   conferred   with <\/p>\n
    Junior Gazetted  Class – II status, but the duties and responsibilities are <\/p>\n
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\n                                               19<\/span><\/p>\n
    the   same.     Under   the   said   Resolution   dated   16\/4\/1984,   it   was   also <\/p>\n
    decided that the percentage of Assistant Engineer, Grade – II (graduate <\/p>\n
    Junior Engineers) will be 25% of the total number of Junior Engineers <\/p>\n
    with   diploma   qualifications.     As   the   position   of   Assistant   Engineer   –\n<\/p>\n
    Grade II was upgraded to the Gazetted status, it fell within the purview <\/p>\n
    of the MSPC and, therefore, there was necessity to frame recruitment <\/p>\n
    Rules. This  took  some time and in the intervening period, it was not <\/p>\n
    possible to hold up the process of recruitment for the post of graduate <\/p>\n
    Junior   Engineers.     It   was   under   these   circumstances,   Government <\/p>\n
    Resolution   dated   18\/9\/1984   was   issued   for   recruitment   on   ad-\n<\/p>\n
    hoc\/temporary   basis.     As   per   this   GR,   the   Committee   under   the <\/p>\n
    Chairmanship   of   coordinating   Superintendent   Engineer   made <\/p>\n
    appointments   of   qualified   graduate   Engineers   and   the   draft   of   the <\/p>\n
    recruitment Rules was submitted to the MPSC, for the first time, in May, <\/p>\n
    1986.   After the year 1990, there was a ban on the recruitment due to <\/p>\n
    zero base budget.  However, in the special drive to fill up the backlog of <\/p>\n
    backward categories, few appointments were made in the year 1990 to <\/p>\n
    1993,   but     from   qualified   graduate   engineers   as   per   the   GR   dated <\/p>\n
    18\/9\/1984.     As   the   Recruitment   Rules   were   not   finalized,   the <\/p>\n
    appointment of graduate engineers was continued even from 1\/1\/1994 <\/p>\n
    to   31\/12\/1996   by   following   the   procedure   set   out   in   the   GR   dated <\/p>\n
    18\/9\/1984.\n<\/p>\n
                   So far as the diploma engineers are concerned, so as to <\/p>\n
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\n                                                20<\/span><\/p>\n
    encourage   them   to   obtain   the   B.E.   or   A.M.I.E.   (equivalent   to   B.E.) <\/p>\n
    qualifications, a scheme was devised with the approval of the MPSC, as <\/p>\n
    per the GR dated 29\/11\/1984.  It was stipulated in the said scheme that <\/p>\n
    those in service diploma holder engineers who are passing either B.E.\n<\/p>\n
                                   th
\n    or A.M.I.E. Degree, a 3\/8   portion of their service  as diploma holder is <\/p>\n
    counted   and   their   seniority   would   be   fixed   in   the   cadre   of   graduate <\/p>\n
    Junior   Engineers.     The   scheme   was   made   applicable   from   1\/4\/1981.\n<\/p>\n
    Finally, the recruitment Rules were notified on 16\/6\/1997 and they were <\/p>\n
    made retrospective with effect from 1\/4\/1981.\n<\/p>\n
                   As   per   the   State   Government,   the   graduate   Engineers <\/p>\n
    recruited between the period from 2\/4\/1981 to 16\/4\/1984 were regularly <\/p>\n
    appointed  candidates  and  as   per   the  GR  dated   16\/4\/1984   they   were <\/p>\n
    required to be absorbed   in the cadre of Assistant Engineer, Grade-II.\n<\/p>\n
    But such a proposal was sent to MPSC for their regularization, it was <\/p>\n
    turned down on the ground that unless the service Rules were framed <\/p>\n
    for regularization, these Engineers could not be absorbed as Assistant <\/p>\n
    Engineer, Grade-II.   It is also the case of the State Government that <\/p>\n
    even in the recruitment Rules of 1997 when it came to the regularization <\/p>\n
    of the temporary\/ad-hoc appointees, there was a discrimination between <\/p>\n
    the two groups, namely, those who were appointed between 17\/4\/1984 <\/p>\n
    to 31\/12\/1993 on one hand and those who were appointed on 1\/1\/1994 <\/p>\n
    to 31\/12\/1996 on the other hand.  The Government felt the need to give <\/p>\n
    service benefits to these Engineers as a one time measure  as they had <\/p>\n
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\n                                               21<\/span><\/p>\n
    contributed in the development projects and, therefore, it submitted a <\/p>\n
    proposal to withdraw from the purview of the MPSC the appointment of <\/p>\n
    Assistant Engineer, Grade-II. The Cabinet decision taken to this effect <\/p>\n
    was   placed   before   the   Governor     of   Maharashtra,   however,   in   the <\/p>\n
    meanwhile  there was  a change  in the Government  and  the proposal <\/p>\n
    finally   received   approval   in   February,   2000.   The   GR   dated   1\/3\/2000 <\/p>\n
    which was subject matter of challenge in O.A. No. 421 of 2000 came to <\/p>\n
    be issued for regularization of these Assistant Engineers, Grade – II.\n<\/p>\n
                  While coming to the challenge to the impugned Rule and <\/p>\n
    more   particularly   on   the   issue   of   seniority   of   the   ad-hoc   Assistant <\/p>\n
    Engineers on regularization, it has been submitted that the Rules have <\/p>\n
    been   amended   for   smooth   regularization   of   the   temporary\/ad-hoc <\/p>\n
    appointees   who   came   in   service   during   the   period   from   2\/4\/1981   to <\/p>\n
    31\/12\/1996 and the amended Rule 8 does not suffer from any illegality <\/p>\n
    or unconstitutionality.  It has been pointed out that the petitioners came <\/p>\n
    to be appointed in the year 2001 and the appointments made to the post <\/p>\n
    of   graduate   junior   engineers   between   the   period   from   1\/4\/1981   to <\/p>\n
    16\/4\/1984 were regular appointments. Similarly, the appointments made <\/p>\n
    in the cadre of Assistant Engineer Grade – II from the diploma holder <\/p>\n
    junior engineers who obtained the A.M.I.E. degree while in service and <\/p>\n
    were   given   benefit   of   3\/8   service   rendered   as   diploma   holder   junior <\/p>\n
    engineers   as   per   GR   dated   29\/11\/1984   and   are   also   required   to   be <\/p>\n
    treated as regular appointments and the MPSC had given concurrence <\/p>\n
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\n                                               22<\/span><\/p>\n
    to the said GR.  It is contended that as per Rule 8 of Recruitment Rules <\/p>\n
    of   1997,   the   temporary   appointees   in   the   post   of   Assistant   Engineer, <\/p>\n
    Grade – II were divided in two groups, namely, (a) all those appointed <\/p>\n
    from 17\/4\/1984 to 31\/12\/1993 and (b) all those appointed from 1\/1\/1994 <\/p>\n
    to 31\/12\/1996.  All those who passed in viva voce  examination held by <\/p>\n
    the   MPSC   in  the  year  1997  were  due   for  regularization   at  that   point <\/p>\n
    itself.  Whereas the remaining all those who did not either appear for the <\/p>\n
    examination or pass the said examination are proposed to be covered <\/p>\n
    by the amended Rule.   However, the seniority of all these appointees <\/p>\n
    who did not qualify in the viva voce examination held by the MPSC in <\/p>\n
    1997 as well as in the competitive examination held in the year 1998 will <\/p>\n
    be fixed after qualifying the examination as proposed in the amended <\/p>\n
    Rules and all of them will be shown below the present petitioners in their <\/p>\n
    seniority. Thus, the amended Rule does not act to the prejudice of the <\/p>\n
    petitioners,  for the purpose of drawing the seniority list.  It is, therefore, <\/p>\n
    urged that when there is no prejudice caused to the petitioners, there is <\/p>\n
    no   case   made   out   to   interfere   with   the   amended   Rule   and   the <\/p>\n
    allegations that unequals will be treated as equals or vice-a-versa is ill-\n<\/p>\n
    founded and imaginary.\n<\/p>\n
    9.             Affidavit-in-reply has also been filed by the respondent no.3 <\/p>\n
    after the petition was amended so as to challenge the amended Rule 8 <\/p>\n
    and the grounds of defence as set out in the affidavit filed on behalf of <\/p>\n
    the State Government have been reiterated and adopted, including the <\/p>\n
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\n                                                23<\/span><\/p>\n
    preliminary point of maintainability of the petitions.\n<\/p>\n
    10.           It   is   well   settled   that   the   service   rules   can   be   amended <\/p>\n
    under the proviso to Article 309 of the Constitution and that, the power <\/p>\n
    to   amend   these   Rules   carries   with   it   the   power   to   amend   them <\/p>\n
    retrospectively. The power conferred by the proviso to Article 309 is of a <\/p>\n
    legislative  character   and   is   to  be   distinguished   from  an   ordinary  rule <\/p>\n
    making power. The power to legislate is of a plenary nature within the <\/p>\n
    field   demarcated   by   the   Constitution   and   it   includes   the   power   to <\/p>\n
    legislate   retrospectively.   The   rules   and   amendments   made   under   the <\/p>\n
    proviso to Article 309 can be altered or repealed by the Legislature but <\/p>\n
    until that is done, the exercise of the power cannot be challenged as <\/p>\n
    lacking in authority [ B.S. Vadera vs. Union of India and ors.<\/a> –  AIR 1969 <\/p>\n
    SC 118 and  Raj Kumar vs. Union of India and ors.  – AIR 1975 SC 1116].\n<\/p>\n
    11.           Let   it   be   noted   at   the   first   instance   that   from   1\/1\/1997 <\/p>\n
    onwards no temporary Assistant Engineer came to be appointed on the <\/p>\n
    basis of the GR dated 18\/9\/1984. The Recruitment Rules of 1997 were <\/p>\n
    notified   on   16\/6\/1997.   In   the   meanwhile,   the   MPSC   had   issued   a <\/p>\n
    proclamation calling for applications for regular recruitment to the post of <\/p>\n
    Assistant Engineer, Grade-II and the combined written examination was
\n                              th          th
\n    held  by  MPSC  on  13   and  14   December, 1998. Final  results  of  the <\/p>\n
    MPSC examination (written and viva voce)  was declared on 19\/9\/1999.\n<\/p>\n
    The petitioners had to wait for their appointments and in the meanwhile <\/p>\n
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\n                                               24<\/span><\/p>\n
    the GR dated 1\/3\/2000 which was subject matter of challenge, at the <\/p>\n
    first instance, before this court in Writ Petition No. 2480 of 2000 and <\/p>\n
    subsequently before the tribunal, came to be issued and on account of <\/p>\n
    the stay orders granted to the said GR, the State Government did not <\/p>\n
    act upon the same and we are satisfied that   no temporary Assistant <\/p>\n
    Engineer   was   regularized   on   the   basis   of   the   said   GR,   while   the <\/p>\n
    petitioners challenge to it was pending, either before this court or the <\/p>\n
    tribunal.\n<\/p>\n
                  As noted earlier, the challenge to the GR dated 1\/3\/2000 as <\/p>\n
    well as to the Judgment and Order dated 11\/9\/2003 rendered by the <\/p>\n
    tribunal   does   not   survive   after   the   petition   was   amended   so   as   to <\/p>\n
    challenge the validity and legality of the amended Rule 8 by the newly <\/p>\n
    amended notification dated 8\/7\/2009.\n<\/p>\n
    12.           Clause (h) of Rule 8( amended) states that the persons who <\/p>\n
    do not pass viva-voce as provided in the Clause (f), their services as <\/p>\n
    Assistant   Engineer,   Grade-II   shall   be   terminated.     However,   if   such <\/p>\n
    persons furnish an undertaking to the effect that they are ready to get <\/p>\n
    absorbed in the cadre of Junior Engineer Group – B (Non Gazetted) <\/p>\n
    with the placement at the bottom of the seniority list of the particular <\/p>\n
    year   in   which   viva-voce   test   is   held,   then   such   persons   shall   be <\/p>\n
    absorbed in that cadre rather than being terminated.   Clause (i) of the <\/p>\n
    new   Rule   8   states   that   the   persons   who   were   appointed   during   the <\/p>\n
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\n                                                25<\/span><\/p>\n
    period   from   2\/4\/1981   to   16\/6\/1997   and   who   have   either   retired   on <\/p>\n
    superannuation or voluntarily retired or left the above referred post for <\/p>\n
    any other reasons, shall be deemed to be regularized in the cadre of <\/p>\n
    Assistant Engineer, Grade-II. Though this clause covers the temporary <\/p>\n
    appointees   upto   16\/6\/1997,   the   fact   remains   that   after   31\/12\/1996   no <\/p>\n
    such   temporary   engineers   were   appointed.     This   clause   is   providing <\/p>\n
    only for the regularization of those appointees who have either retired on <\/p>\n
    superannuation or voluntarily retired or resigned from the said post. The <\/p>\n
    implementation   of   this   clause   does  not  deal   with   the  seniority  of   the <\/p>\n
    engineers covered thereunder, as of now.  However, if some of these did <\/p>\n
    not pass the viva-voce test conducted in July\/August 1997 or did not <\/p>\n
    appear for the said test or did not appear and\/or failed in the combined
\n                                                                                    th          th
\n    competitive written examination conducted by the MPSC on 13  and 14<\/p>\n
    December, 1998 and\/or shown senior to the petitioners in the seniority <\/p>\n
    list to be drawn in future by the State Government or the concerned <\/p>\n
    department, the petitioners’ challenge to the same will have to be left <\/p>\n
    open and that too before the appropriate forum.   However, as of now, <\/p>\n
    there is no material before us even to doubt that the State Government <\/p>\n
    will or is likely to show the engineers covered by Clause (i) as senior to <\/p>\n
    the petitioners.\n<\/p>\n
    13.            The graduate\/diploma engineers falling within the sweep of <\/p>\n
    Rule   8(a)   &   (b)   are   not   temporary   appointees   and   in   fact   they   were <\/p>\n
    regularly   appointed,   whether   as   graduate   or   diploma   engineers,   in <\/p>\n
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\n                                                 26<\/span><\/p>\n
    Class-III.   As per the decision taken on the floor of the house, these <\/p>\n
    engineers covered by Clause (a) of the amended Rule 8 were required <\/p>\n
    to  be  upgraded  as   Assistant  Engineers,  Class-II.     At  the  same  time, <\/p>\n
    Rule 8 of the 1997 Rules provided for the regularization of all temporary <\/p>\n
    appointees upto December, 1996. During the period from 1976 to 1983, <\/p>\n
    the graduate engineers came to be appointed by the Selection Boards <\/p>\n
    and by the GR dated 18\/6\/1983 these boards came to be abolished. All <\/p>\n
    the appointments of graduate\/diploma engineers were made in the post <\/p>\n
    of   junior   engineers.     However,   the   cadre   of   junior   engineers   was <\/p>\n
    bifurcated   into   –   (a)   Sectional   Engineer   –   Class   III   for   the   diploma <\/p>\n
    engineers and (b) Assistant Engineer – Class II.  And on this bifurcation, <\/p>\n
    the  MPSC   came into  picture in  respect  of the  Assistant  Engineers  –\n<\/p>\n
    Class   II.     Awaiting   the   framing     of   Recruitment   Rules,   the   State <\/p>\n
    Government resorted to temporary appointments of graduate engineers <\/p>\n
    as per the GR dated 18\/9\/1984.  Hence the petitioners’ challenge to the <\/p>\n
    validity of Rule 8(g) and in respect of the seniority of those engineers <\/p>\n
    covered   under   Clause   (d)   to   (e)   of   Rule   8,   only   is   required   to   be <\/p>\n
    examined.\n<\/p>\n
    14.            Clause (f) of the new Rule 8 is very important to examine <\/p>\n
    the challenge raised by the petitioners on the ground of seniority and it <\/p>\n
    reads as under:-\n<\/p>\n
                   “(f)  The  persons   who  do  not  pass  in  the  second  attempt <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:43:24 :::<\/span>
\n                                             27<\/span><\/p>\n
                 shall be given one more opportunity by way of last chance <\/p>\n
                 to   appear   for   the   viva-voce   test   to   be   held   by   the <\/p>\n
                 Maharashtra Public Service Commission, to enable him to <\/p>\n
                 get   their   services   regularized   in   the   cadre   of   Assistant <\/p>\n
                 Engineer, Grade-II.”<\/p><\/blockquote>\n
                 The   seniority   of   such   persons   except   those   who   have <\/p>\n
    passed  the combined competitive examination mentioned in Clause (c) <\/p>\n
    and the persons mentioned in Clause (d) shall be fixed in the cadre of <\/p>\n
    Assistant Engineer, Grade-II  as per the provisions in the first proviso to <\/p>\n
    sub rule (1) of Rule 4 of the Maharashtra Civil Services (Regulation of <\/p>\n
    Seniority) Rules 1982 and the seniority of such persons mentioned in <\/p>\n
    Clause (d) shall be fixed at the bottom of the directly recruited batch <\/p>\n
    joined in the year 2001.\n<\/p>\n
                 This clause clearly states that the engineers who are not <\/p>\n
    covered in Clause (c) and covered in Clause (d) shall be fixed at the <\/p>\n
    bottom of the directly recruited batch joined in the year 2001   in the <\/p>\n
    seniority list, by following the provisions of the first proviso to Rule 4(1) <\/p>\n
    of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982.\n<\/p>\n
    Whereas sub clause (c) states that the services of  persons appointed <\/p>\n
    on temporary basis to the post of Assistant Engineer, Grade II during <\/p>\n
    the period from 17\/4\/1984 to 31\/12\/1996 and who had qualified in the <\/p>\n
    viva-voce test held by the Commission in August\/September, 1997 and <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 15:43:24 :::<\/span>
\n                                                 28<\/span><\/p>\n
    those who qualified in the combined competitive examination held by
\n                                                        th       th
\n    the Commission from the period from 12  to 13  December, 1998 shall <\/p>\n
    be regularized in the cadre of Assistant Engineer, Grade -II from the <\/p>\n
    date   of   their   initial   appointment   in   the   cadre.     We   do   not   find   any <\/p>\n
    sustainable   ground   to   challenge   this   clause   as   the   regularization <\/p>\n
    contemplated therein is in keeping with Rule 8 of the Recruitment Rules <\/p>\n
    1997.\n<\/p>\n
    15.            The   first   proviso   to   Rule   4(1)   of   the   Maharashtra   Civil <\/p>\n
    Services (Regulation of Seniority) Rules, 1982 reads as under:-\n<\/p>\n
                   “Provided that, for the purpose of computing such service, <\/p>\n
                   any period of absence from the post, cadre or service due <\/p>\n
                   to leave, deputation for training or otherwise or on foreign <\/p>\n
                   service, or temporary officiation in any other post shall be <\/p>\n
                   taken into account, if the competent authority certifies that <\/p>\n
                   the Government servant concerned would have continued <\/p>\n
                   in the said post, cadre or service during such period,  had <\/p>\n
                   he not proceeded on leave or deputation or been appointed <\/p>\n
                   temporarily to such other post.” <\/p><\/blockquote>\n
                   Clause   (j)   of   the   new   Rule   8   clearly   states   that   the <\/p>\n
    engineers covered therein and whose seniority shall be drawn as per <\/p>\n
    the   first   proviso   to   Rule   4(1)   of   the   Maharashtra   Civil   Services <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:43:24 :::<\/span>
\n                                               29<\/span><\/p>\n
    (Regulation of Seniority) Rules, 1982 shall be placed below the directly <\/p>\n
    recruited batch joined in the year 2001, which includes the petitioners.\n<\/p>\n
    Thus the regularization of the engineers covered under Clause (d) of the <\/p>\n
    new Rule 8 as  well  as  drawing of their seniority  does  not act to the <\/p>\n
    prejudice of the petitioners.  Obviously, as of now, there is no reason to <\/p>\n
    believe   that   any   different   provisions   other   than   Rule   4(1)   of   the <\/p>\n
    Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 will be <\/p>\n
    followed by the Government in respect of the engineers covered under <\/p>\n
    Clause   (e)   and   (f)   while   drawing   their   seniority   and   undoubtedly   all <\/p>\n
    these engineers who would be regularized under Clause (e) and (f) are <\/p>\n
    bound to be shown juniors to those who are covered under Clause (d) <\/p>\n
    and there is no material to believe that the Government will   deviate <\/p>\n
    from   this   presumption   as   of   now.   Hence,   in   our   considered   opinion, <\/p>\n
    there is no material before us presently to even prima facie believe that <\/p>\n
    the underlined portion of Clause (g) of the new Rule 8 is likely  to act to <\/p>\n
    the detrimental of the petitioners in respect of their seniority and if their <\/p>\n
    seniority  is not going to be affected by the regularization so proposed <\/p>\n
    under the new Rule 8, there is no reason to entertain the challenge to <\/p>\n
    the said Rule.\n<\/p>\n
    16.            We have limited the scope of our considerations in these <\/p>\n
    petitions   only   on   the   issue   of   seniority   and   not   to   the   issue   of <\/p>\n
    regularization of the temporary appointees and in any case there is not <\/p>\n
    much of a serious challenge to the decision for regularization of these <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 15:43:24 :::<\/span>
\n                                                30<\/span><\/p>\n
    temporary appointees who came to be appointed prior to 1\/1\/1997.  On <\/p>\n
    the preliminary points regarding the maintainability of the petitions so as <\/p>\n
    to challenge the validity of the amended Rules, we wish to state that the <\/p>\n
    Rules   have  been  amended  while  the   petitions   were  pending  and   we <\/p>\n
    have allowed the amendment to the petition memo so as to challenge <\/p>\n
    the amended Rules.  It is also pertinent to note that the petitions were <\/p>\n
    remanded   for  fresh  hearing   by   the  Apex  Court   and   by  the   amended <\/p>\n
    Rules, nothing further survived in the challenge raised in the petitions to <\/p>\n
    the GR dated 1\/3\/2000 and the judgment and order dated 11\/9\/2003 <\/p>\n
    rendered   by   the   tribunal.     Asking   the   petitioners   to   go   back   to   the <\/p>\n
    tribunal   to   challenge   the   validity   of   the   amended   Rule   8   would   have <\/p>\n
    resulted in a multiplicity of litigation, which ought to be prevented. At the <\/p>\n
    same time, the uncertainty about the validity of the amended Rule ought <\/p>\n
    to be settled at the earliest possible and in any case, as we have noted <\/p>\n
    earlier,   as   and   when   the   State   Government   draws   the   seniority   list <\/p>\n
    based on the amended Rule 8 and if the petitioners are aggrieved by <\/p>\n
    the same, they have to take recourse to file an application under the <\/p>\n
    Administrative   Tribunals   Act,   at   the   first   instance   and   we   cannot <\/p>\n
    presume, at this stage, that the State Government will act contrary to <\/p>\n
    the amended Rule 8 and show the petitioners juniors to the engineers <\/p>\n
    who are sought to be regularized under Clauses (d) to (f) of the said <\/p>\n
    Rule.\n<\/p>\n
    17.            In   the   premises,   these   petitions   fail   and   the   same   are <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:43:24 :::<\/span>
\n                                              31<\/span><\/p>\n
    hereby dismissed. We hold that the amended Rule 8 does not cause <\/p>\n
    any prejudice, on the point of seniority, to the petitioners and if any of <\/p>\n
    them   are   shown   in   the   seniority   list,   to   be   drawn   by   the   State <\/p>\n
    Government, as juniors to the engineers to be absorbed in Clauses (d), <\/p>\n
    (e) and (f) of the said Rule, the petitioners are at liberty to approach the <\/p>\n
    Maharashtra Administrative Tribunal. Rule discharged.  Costs in cause.\n<\/p>\n
    18.           Civil Application Nos. 1429 of 2007, 439 of 2009 and 1889 <\/p>\n
    of 2009 do not survive and stand disposed as such.\n<\/p>\n
    (SMT. ROSHAN DALVI,J.)                                 (B. H. MARLAPALLE,J.)\n        \n     \n\n\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 15:43:24 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-224827","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSunita Daulatrao Patil And Ors vs The State Of Maharashtra And Ors on 17 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunita-daulatrao-patil-and-ors-vs-the-state-of-maharashtra-and-ors-on-17-march-2010-3\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunita Daulatrao Patil And Ors vs The State Of Maharashtra And Ors on 17 March, 2010 - 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