1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.2233 Of 2008 Dr.Ajit Ramrao Thete .. Petitioner. Versus The State of Maharashtra & Others. .. Respondents. -------- Shri. Rajendrraa Deshmukh, Advocate for petitioner. Shri. R.P. Phatke, Additional Government Pleader for respondent Nos.1 to 3. Respondent Nos.4 to 6 – served. ------ CORAM: NARESH H PATIL & N.D. DESHPANDE, JJ. DATE: 19th APRIL 2010 2 ORDER : (Per Naresh H Patil, J.) 1) The petitioner challenges the judgment and order dated 7th December 2007 passed in Original Application No.590 of 2007 by the Maharashtra Administrative Tribunal. 2) In short, the petitioner contends that he entered into service of respondent Nos.1 to 3 on 9-9-1985 on the post of Lecturer in Civil Engineering. He was appointed as Head of Department on 19-5-1998. There was a unified cadre of Maharashtra Engineering Teachers and Administrative Service Group A. Recruitment Rules were framed by the State Government under Article 309 of the Constitution of India. On 9-9-2004 respondent Nos.1 and 2 3 issued a Government Resolution bifurcating the unified cadre and creating two separate cadres viz “The Maharashtra Polytechnic Teachers Services, Group-A” and the “Maharashtra Engineering Administrative Services, Group A”, which, according to the petitioner, was, outcome of litigation in the shape of Original Application No.95 of 1997 which was decided on 3-10-1997 by the Administrative Tribunal. The Government Resolution prescribes that the teachers who were appointed on administrative posts either on promotion or on transfer shall be entitled to opt for being continued either in “Maharashtra Polytechnic Teachers Services Group-A” or in the “Maharashtra Engineering Administrative Services Group- A” subject to certain terms and conditions as laid down in the said Government 4 Resolution. The employees were to submit their option. Accordingly the petitioner filed option form for appointment on administrative post in newly created “Maharashtra Engineering Administrative Services, Group-A” and submitted that his seniority should be finalized in this cadre and the post in the pay scale of Rs.10,000 – 15,200. 3) The petitioner has thereafter raised an issue that his seniority in the earlier unified cadre shall be considered and accordingly seniority list in the newly created post in which the petitioner had opted for should be finalized. 4) The petitioner approached the Maharashtra Administrative Tribunal with prayer to quash and set aside the final 5 seniority list of the cadre of “Maharashtra Engineering Administrative Services, Group A” as on 1-1-2005 published on 7-8-2007. The petitioner further prayed that a fresh seniority list be prepared by showing him senior to respondent Nos.4 to 6 on the basis of continuous service rendered by him from 28-5-1998. 5) By judgment and order dated 7-12-2007 the Maharashtra Administrative Tribunal dismissed the Original Application filed by petitioner and other Original Applications filed by other employees. 6) The learned counsel appearing for the petitioner Shri. Deshmukh contends that though two cadres were created out of one unified cadre, the petitioner’s seniority is required to be fixed considering his 6 continuous service which he rendered. In support of his submissions the learned counsel has placed reliance on reported judgments in (1) State of Maharashtra v. Uttam Vishnu Pawar, (2008) 2 SCC 646 and (2) Haryana Urban Development Authority v. Om Pal, 2008 All SCR 48. 7) It was further submitted that the Tribunal committed error in rejecting the contention of the petitioner. In the facts of the case even if the petitioner had submitted his option for a particular cadre the same cannot be held to be detrimental to the interests of the petitioner in respect of consideration of petitioner’s case while fixing the enter-se seniority of the employees. The learned counsel further submits that the Government Resolution 7 cannot override the statutory Service Rules. 8) The learned Additional Government Pleader, Shri. R.P. Phatke, supported the view adopted by the Tribunal and submitted that the Government Resolution dated 9-9-2004 under which the unified cadre was bifurcated was itself a subject matter of challenge before the Tribunal. The Tribunal rejected the said Original Application. A Writ Petition was preferred before the High Court bearing Writ Petition No.2392 of 2005. A Division Bench of the High Court (Coram: R.M.S. Khandeparkar & S.P. Kukday, JJ.) by judgment and order dated 5th August 2005 dismissed the writ petition. In the light of the observations made by the Division Bench in the said order, the 8 contentions raised by the petitioner herein are required to be rejected as the issue is already concluded. 9) We have perused the judgment delivered by the Tribunal. The Tribunal has analised the issue in detail and considered all pros and cons of it. The Division Bench of this Court while deciding Writ Petition No.2392 of 2005 had dealt with the scheme reflected under the Government Resolution and the issue raised herein was also dominated consideration of the Court therein. The Division Bench observed thus : “ .... A cadre cannot remain stagnant forever. There is bound to be some reforms or suitable modification with the passage of time. It must also to be borne in 9 mind that it is not within the province of the Court to insist that the executive policy must always remain static even if its reformation is fair and reasonable. What is relevant is to ascertain whether the action is mala fide unreasonable or irrational as a criterion. The Court cannot substitute its wisdom for Government’s except to see that unreasonable perversity. Mala fide manipulations and indefensible arbitrariness do not define the equation for integration for this purpose, reference can be made to the ruling of the Supreme Court, reported in AIR 2002 SC 2477 in the matter of State of Himachal Pradesh vs. Padam Devi. ..... “ 10) We do not find any convincing reason to deviate from the view adopted by the Division Bench as stated above. We are convinced that there is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes. The 10 petitioner was aware that unified cadre was being bifurcated and option was asked from the employees. The petitioner willingly opted for one of the cadres by specifically mentioning that his seniority should be finalized in that cadre and the post. The petitioner further mentioned in the option letter that as per the terms and conditions of the Government Resolution he should be classified in the Maharashtra Engineering Administrative Services Group “A” cadre. Therefore, reliance placed by the learned counsel for the petitioner on the judgments (cited supra) are not of any help to the petitioner. 11) In the light of the view adopted by the Tribunal and the reasons stated as above we do not find that this petition 11 deserves to be entered in exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India. 12) The writ petition is dismissed. (N.D. DESHPANDE, J.) (NARESH H PATIL, J.) rsl/ wp.2233.08