1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6380 OF 2006 1.Shri.Balasaheb Chandrarao More and others. ...Petitioners vs. 1.Shri.Suresh Kisanrao Porje and others. ...Respondents. --- Mr.P.K.Dhakephalkar with N.V.Bandiwadekar, for Petitioners. Ms.Ranjana Todankar i/b. S.S.Pakale,for Respondents 1 to4 Mr.S.C.Prabhu, for Respondents 11,16,41,43,48 & 52. Mr.A.Y.Sakhare i/b. Y.K.S.Legal, for Respondents 147,148. Ms.M.P.Thakur, AGP for Respondents 152,153,155. and WRIT PETITION NO.1696 OF 2007 1.The Government of Maharashtra and another. ...Petitioners. vs. 1.Shri.Suresh Kisanrao Porje and others. ...Respondents --- Ms.M.P.Thakur, AGP for Petitioners. CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 30th September,2008. 2 P.C.:- 1. By both these petitions, the same order passed by the Maharashtra Administrative Tribunal is challenged and therefore, both these petitions can be conveniently disposed of by a common order. 2. The facts that are relevant and material for deciding these two petitions are that by the order of the Maharashtra Administrative Tribunal which is impugned in the petitions, the Maharashtra Administrative Tribunal has decided three original applications i.e. original application no.861 of 2005, 908 of 2005 and 159 of 2006. These three original applications were filed by the agricultural officers who were appointed on the recommendations of the Maharashtra Public Service Commission as per the recruitment rules. In these three original applications they challenged the Government Resolution issued by the Government of Maharashtra dated 23.9.2005, 26.9.2005 and 27.9.2005. By the 3 Government Resolution dated 23.9.2005 issued under Article 162 of the Constitution of India the services of 755 persons who were appointed as Agricultural Officers came to be regularised from the date of their initial appointment. By the Government Resolution dated 26.9.2005 a final seniority list of the officers holding the post of agricultural officer was published which included names of these 755 agricultural officers. By the Government resolution dated 27.9.2005, 142 out of these 755 Agricultural officers were promoted to the higher post on the basis of list dated 26.9.2005. In short, in these three original applications, the action of the State Government regularising the services of 755 agricultural officers, giving them seniority over the agricultural officers who were appointed on recommendation of the Maharashtra Public Service Commission and promoting them to the higher post was challenged. 3. The Government of Maharashtra framed rules viz. “Agricultural Officers (Class III) (Recruitment) Rules 1980” (hereinafter referred to as “1980 Rules”) 4 governing the recruitment to the post of agricultural officer (Class III). These rules provided for filling in 50% of the posts of Agricultural officers (class III) by direct recruitment of the candidates who are selected by the selection board after advertisement in the official Gazette and it also provides for filling in 50% posts by promotion of departmental candidates. The Government of Maharashtra issued resolution dated 28.8.1981. By that resolution the post of Agricultural officer was given Gazetted status with effect from 1.5.1981. The consequence was that the personnel who were holding the post of agricultural officer (Class III) on and from 1.5.1981 became Gazetted officers. The other consequence was that now because of the regulation framed by the State Government under Article 320 of the Constitution of India appointment on regular basis to the post of Agricultural officer could be made only on the recommendation of Maharashtra Public Service Commission. 4. In exercise of its power under Article 309 of the Constitution of India, the Government of 5 Maharashtra framed “The Maharashtra Agricultural service, Class I, Class II and Class II (Junior) in the Directorate of Agriculture (Land and Water Management Group) (Recruitment) Rules, 1983” (hereinafter referred to as “1983 Rules”). These rules provided that appointment to the post of Agricultural officer Class II (Junior) was to be made 50% by nomination of the candidates recommended by Maharashtra Public Service Commission and 50% by promotion of Agricultural supervisors. Before 1983 Recruitment rules were framed i.e. from 1.5.1981 to 4.8.1983, 63 persons were appointed on ad-hoc basis as Agricultural Officers (Class III), and thereafter after the 1983 Rules were framed i.e. from 5.8.1983 to 31.12.1984 about 692 persons were appointed on ad- hoc basis as Agricultural officers (Class III). 5. It appears that the Government moved a proposal before the Maharashtra Public Service Commission for obtaining its approval for regularisation of the services of these 755 Agricultural officers (Class II). In the year 1994, the Maharashtra Public Service Commission held an 6 examination for these 755 Agricultural Officers and the Maharashtra Public Service Commission forwarded the result to the State Government by letter dated 21.4.1995 and recommended that services of 533 Agricultural officers may be regularised from the date of declaration of the result. It may be pointed out that though the result has not actually been declared by the State Government, it has come on record that 533 Agricultural Officers have passed the examination. It appears that the State Government did not agree with the recommendation of the Maharashtra Public Service Commission about the regularisation of the services of 533 Agricultural officers from the date of declaration of the result, and therefore, it issued a Government Resolution in exercise of its power under Article 162 of the Constitution of India regularising the services of 755 Agricultural Officers from the date of their initial appointment which was on ad-hoc basis. By further resolution seniority of these 755 Agricultural officers was fixed from the date of ad- hoc appointment. It may be pointed out here that in accordance with 1983 Rules, the Maharashtra Public 7 Service Commission held examination and pursuant to the recommendation made by M.P.S.C. about 207 persons were appointed as Agricultural Officer Class II (Junior) from the year 1991 till 1994. The executive decision of the State Government of granting regularisation in service to all 755 agricultural officers from the date of their initial appointment, therefore, had adverse effect on the interest of those agricultural officers who were recruited on the recommendations of the Maharashtra Public Service Commission because they became junior in the cadre of Agricultural officer to those officers, because not only 755 agricultural officers were given seniority above them but 142 of them were even promoted to the higher post, and therefore, it is for these reasons that those directly recruited persons had filed the above referred three original applications challenging the action of the State Government. Those three original applications have been decided by the Maharashtra Administrative Tribunal by its judgment and order dated 2.8.2006. The Maharashtra Administrative Tribunal has set aside all the three Government resolutions which were 8 challenged before it. The M.A.T. directed the State Government to regularise the services of 535 agricultural officers who were declared as successful candidate in the examination conducted by the Commission from the date of communication of the result by the Commission to the State Government. The orders giving promotion were also set aside and the Government was directed to make promotion in accordance with the fresh seniority list that it may prepare pursuant to the directions of the M.A.T. Some out of 755 Agricultural Officers have filed writ petition no.6380 of 2006 challenging the order of the M.A.T. setting aside the Government Resolutions challenged before it and claiming that they are entitled to be regularised in service from the date of initial appointment. The Government has filed writ petition no.1696 of 2007 also challenging the order of the M.A.T. 6. The learned Counsel appearing for petitioners submitted that the Tribunal has directed the Government to regularise the services of 535 Agricultural officers who have passed the examination 9 conducted by the M.P.S.C, from the date of communication of the result of the examination. He submitted that however once the said 535 Agricultural officers have passed the examination conducted by the M.P.S.C. their regularisation should relate back to their initial appointment and not from the date of communication of the result, otherwise it would not be regularisation but it would be a fresh appointment. The learned Counsel relied on the observations of the Supreme Court in the judgment in the case of “The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others, AIR 1990 Supreme Court 1607”, more particularly on the observations found in paragraph 44(b) of the judgment. The learned Counsel also relied on the observations of the Supreme Court in its judgment in the case “Union of India and another Vs. Lalita s. Rao and others, (2001)5 Supreme Court Cases 384”. He submitted that since these agricultural officers continued in service uninterruptedly and they have also passed examination conducted by M.P.S.C., their regularisation should be from the date of initial appointment and not from the 10 date of result of the examination. 7. It was further submitted that the Government was required to recruit these Agricultural officers in view of the extreme urgency and the administrative exigency, more particularly, in view of the projects undertaken with the World Bank Aid and at the relevant time the candidates selected from the Commission were not available. It was further submitted that all the appointees were within the prescribed age limit and they also possessed educational qualification prescribed under the rules. He submitted that their appointments were made by calling names through the Employment Exchange and after interviewing the candidates. It was submitted that since they continued in service for a number of years, the Government has rightly, in its power under Article 162 of the Constitution of India, issued Government Resolution and regularised their services from the date of their initial appointment. 8. It was submitted that the State Government has entered into series of correspondence with the 11 MPSC with a view to seek approval of the MPSC for regularising the services of those Agricultural officers. It was submitted that the MPSC approved the proposal by its letter dated 31.5.1990 and 19.6.1990, whereby the MPSC agreed that the appointments of all the Agricultural officers were treated as made validly as per the 1980 Recruitment Rules. It was submitted that this amounts to MPSC giving its approval for regularisation of services of the Agricultural officers. It was also submitted that though the Tribunal relied on the judgment of the Supreme Court in the Case of “Secretary, State of Karnataka and others Vs. Umadevi (3) and others, 2006 Supreme Court Cases (L&S) 753”, the Tribunal failed to appreciate the directions issued by the Supreme Court regarding one time regularisation of the service of the employee. It was submitted that therefore it can be said that the decision of the State Government to regularise the services of the Agricultural Officers was in consonance with the judgment of the Supreme Court in “Umadevi” case, 9. Both the petitions were opposed only by the 12 Agricultural officers who were appointed on their names being recommended by the MPSC and who had filed the original applications before the M.A.T., therefore, they are hereinafter referred to as “contesting respondents”. The learned Counsel appearing for contesting respondents submitted that once recruitment rules were framed in exercise of power under Article 309 of the Constitution of India in the year 1983, the State had no authority to exercise its power by issuing Resolution under Article 162 of the Constitution of India to regulate the services of ad-hoc appointees. The power under Article 162 of the Constitution of India cannot be invoked in the teeth of Recruitment Rules as has been held by the Supreme Court in catena of judgments. It was further submitted that from 1.5.1981, the posts became gazetted and came under the purview of MPSC and therefore, any appointed to the post on regular basis could be made only of a candidate who has been selected and recommended by the MPSC. The executive power of the State under the Constitution cannot be used to nullify the authority of the MPSC. It was submitted that neither under the 1980 Rules nor under 13 the 1983 Rules the Government has power to relax any condition, and therefore, the Government Resolution issued under Article 162 of the Constitution of India is contrary to the Recruitment Rules framed under Article 309 of the Constitution of India. 10. It was further submitted that all the appointments of Agricultural officers made between 1.5.1981 to 4.8.1983 and 5.8.1983 to 31.12.1984 are in violation of (i) Maharashtra Public Service Commission (Exemption from Consultation) Regulation,1965; (ii) Recruitment Rules of 1980 and (iii) Recruitment Rules of 1983, and therefore, exercise of powers under Article 162 of the Constitution of India is bad in law, without authority and in violation of Articles 14 and 16(1) of the Constitution of India. It was submitted that appointments of 755 Agricultural officers was bad in law and was not made in compliance with 1980 Rules and 1983 Rules as none of the provisions as contained in Rules 3 and 4 of 1980 Rules i.e. advertisement in Gazette, selection by board and reservation were followed nor the 1983 Rules were followed, because 14 under 1983 Rules appointment should have been made only of the candidates who are recommended by MPSC. It was submitted that appointment of all the 755 Agricultural officers was made by Director of Agricultural who has no authority under any of the Rules to make appointment without publishing advertisement in the Official Gazette and without candidate being selected by Selection Board. It was submitted that the Government has framed Regulations under proviso to Article 320 (3) of the Constitution in the year 1965 whereby exemption from consultation with the Public service commission is granted to the Government only for making appointment to Gazetted posts for a period not exceeding one year, and for making appointment to Gazetted posts for a period exceeding one year consultation with the MPSC is mandatory. It is submitted that the appointments were not irregular but they were illegal. It is submitted that the petitioners have not been able to show anything which would even indicate that the finding recorded by the M.A.T. that the appointment of all 755 Agricultural officers were illegal, is bad in law. In the submission of the learned Counsel 15 appearing for contesting respondents, therefore, there is no room for this Court to interfere with the well considered and detail order passed by the MAT. The learned Counsel relied on the following judgments of the Supreme Court:- (i) “B.N.Nagarajan Vs. State of Karnataka, AIR 1979 Supreme Court 1676, (ii) “J & K Public Service Commission & others Vs. Dr.Narinder Mohan and others, (1994)2 Supreme Court Cases 630”, (iii) “A.Umarani Vs. Ragistrar, Co-operative Societies and others, (2004)7 Supreme Court Cases 112”, (iv) A.K.Bhatnagar & others vs. Union of India and others, (1991)1 Supreme Court Cases 544, (v) Keshav Chandra Joshi & others etc. Vs. Union of India and others, AIR 1991 Supreme Court 284, (vi) Y.H.Pawar Vs. State of Karnataka and another, (1996)10 Supreme Court Cases 444, (vii) Post Master General, Kolkata Vs. Tutu Das (Dutta), (2007)5 Supreme Court Cases 317. (viii) Kendriya Vidyalaya Sangathan and others Vs. 16 L.V.Subramanyeswara and another, (2007)5 Supreme Court Cases 326. It was submitted that in view of the findings of M.A.T. and the law laid down by the Supreme Court regularisation under Article 162 is not permissible and the services of ad-hoc illegal appointees cannot be computed for the purpose of seniority as their entry was illegal and against the 1980 recruitment Rules as also 1983 Rules and Regulation of 1965 framed under Article 320 of the Constitution by the State Government. 12. If the record of the case is perused in the light of these rival submissions, it is clear that the Maharashtra Administrative Tribunal has written a detail and well reasoned judgment. A clear finding has been recorded on each and every relevant aspect of the matter. The Supreme Court has considered the issue regarding regularisation of services in public employment, in the light of the all the relevant previous judgments of the Supreme Court, in its judgment in the case “Tutu Das” referred to above. 17 The observations of the Supreme Court found in paragraph (12) and (13) of that judgment, in our opinion, are relevant, they read as under:- “12. What was considered to be permissible at a given point of time keeping in view the decisions of this Court which had then been operating in the field, does no longer hold good. Indisputably, the situation has completely changed in view of a large number of decisions rendered by this Court in last 15 years or so. It was felt that no appointment should be made contrary to the statutory provisions governing recruitment or the rules framed in that behalf under a statute or the proviso appended to Article 309 of the Constitution of India. 13. Equality clause contained in Articles 14 and 16 of the Constitution of India must be given primacy. No policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes.” From the observations quoted above, two things are 18 clear (i) the State should not make any appointment contrary to the recruitment rules framed under Article 309 of the Constitution of India, and (ii) the State cannot take any policy decision in exercise of its power under Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes. Now it goes without saying that the rules framed in exercise of power under Article 309 are statutory rules. It is evident from the communication from the MPSC dated 31.5.1990 and 19.6.1990 which have been relied on by the petitioners that it was the case of the State Government that appointment of 755 Agricultural officers were made under 1980 Rules. So far as 1980 Rules are concerned they have been quoted verbatim by M.A.T. in paragraph 21 of its judgment. Perusal of those rules shows that so far as the appointment to be made by nomination are concerned, they have to be made after the “post is advertised in official Gazette” and “selection of the candidates is by the service selection board”. It is to be noted that at the relevant time, the legislature of Maharashtra State had passed an Act for constitution of selection 19 board for recommending candidates for appointment in Class III post under the State Government as also various other statutory authorities and local authorities. Thus, two primary requirements of 1980 Rules were that the post should be advertised in official Gazette and candidates should be selected by the Selection Board. The M.A.T. in paragraph 15 of its judgment has recorded a clear finding that at no stage before making appointment of 755 Agricultural officers, those posts were advertised in the official Gazette. It is also common ground that the appointments were made by the Director of Agricultural after interviewing the candidates and the candidates were not selected by the subordinate service selection board. Perusal of 1980 Recruitment Rules which are quoted as observed above in paragraph 21 of the M.A.T. shows that those Rules were framed by the State Government in exercise of its power under Article 308 of the Constitution of India. Thus, the appointment of all 755 Agricultural officers was contrary to the 1980 Rules which were framed by the State Government in exercise of its power under Article 309 and therefore, were statutory 20 rules. Perusal of the Government Resolution which has been issued by the State Government for the purpose of regularisation of the services of 755 Agricultural Officers shows that it has been issued in exercise of power of the State government under Article 162 of the Constitution of India. A clear finding to that effect has been recorded by the M.A.T. and that position is not even disputed before us. From the above discussion, now it is clear that the appointment of 755 Agricultural officers was made in breach of the Statutory Rules. The appointments were also contrary to the mandate of Article 14 of the Constitution of India because the appointments were made without advertising the posts and the State Government used its power under Article 162 of the Constitution of India to regularise what was done in violation of the Statutory rules and Constitution, and therefore, in view of the law laid down by the Supreme Court in its judgment in the case of “Tutu Das” referred to above and quoted above the Government Resolution regularising the services of 755 Agricultural officers is illegal. 21 13. Further perusal of the judgment of the Supreme Court in the Case “Tu Tu Das” shows that the Supreme Court has considered its judgment in the case of “Umadevi” which is the judgment of the Constitution Bench of the Supreme Court. In the judgment, the Supreme Court has extensively quoted from its judgment in the case “Umadevi” and in paragraph 15 the Supreme Court after referring the judgment in “Umadevi” case has observed thus:- “15. Before considering the submission of Mr.Roy based upon para 53 of Umadevi(3) we may notice that in A.Umarani V. Registrar, Co-op Societies this Court held: (SCC p.126, para 45) “45. No regularisation is, thus, permissible in exercise of the statutory (sic executive) power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules.”” Perusal of the judgment of the M.A.T. which is impugned in this petition shows that the M.A.T. has also relied on the judgment of the Supreme Court in 22 Umarani's case to hold that exercise of power under Article 162 of the Constitution of India by the State Government in the present case is illegal. It is to be noted here that in view of the regulations framed by the State Government in the year 1965 under Article 320 of the Constitution of India, it could make appointment to the Gazetted post only for a period not exceeding one year. From 1.5.1981 the post of Agricultural officer Class II Junior became a Gazetted post and therefore, appointment against the post without a candidate selected and recommended by Maharashtra Public Service Commission could have been made only for a period not exceeding one year, and therefore by letter dated 25.2.1982, the State Government directed the Directorate of Agriculture to make appointment in accordance with 1980 Rules for one year or till the candidates recommended by MPSC are made available for appointment. But it is obvious that the Directorate did not follow the direction of the State Government contained in the letter dated 25.2.1982 and did not follow the 1980 Rules while making appointments. However, the appointments were made by him were only for one year or till the 23 candidates selected by MPSC become available. In paragraph 24 the Maharashtra Administrative Tribunal has observed thus:- “We have noted from orders that a condition is incorporated in it whereby it is mentioned that all appointments made to the post of Agricultural officers are for a period of one year or till the candidate duly selected from the Commission is made available. Thus, from the documents placed on record one undisputed fact emerge that all appointments of 755 Agricultural officers are temporary adhoc and pending regular appointments. With these undisputed facts we now consider the points raised before us.” The Maharashtra Administrative Tribunal has, thus, recorded a clear finding that appointment of all these 755 Agricultural officers were adhoc and pending regular appointments. 14. The learned Counsel appearing for petitioners heavily relied on the judgment of the 24 Supreme Court in the case “The Direct Recruit Class II Engineering Officers Association and others Vs. State of Maharashtra and others” and specially on paragraph 44(B) of that judgment which reads as under:- “44(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.” The learned Counsel submits that assuming that the appointment of 755 Agricultural officers was not made following the procedure laid down by 1980 Rules, but as