1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Civil Application No.1887 of 2009 In Civil Writ Petition No.7415 of 2003 Sunita Daulatrao Patil & ors. Applicants Vs. State of Maharashtra & ors. Respondents Mr.A.V.Anturkar i/b. Mr.Vishwanath Talkute for applicants. Mr.P.M.Pradhan, Special Counsel with Mr.S.R. Nargolkar, AGP for respondent no.1. Mr.S.R.Atre for respondent no.2. Mr.P.K.Dhakephalkar, Senior Counsel with Mr.N.V.Bandiwadekar for respondent nos.3 and 6. CORAM: B.H.MARLAPALLE & SMT.ROSHAN S. DALVI,JJ. September 18, 2009. P.C. 1. We have heard Mr.Anturkar, the learned counsel for the applicants, Mr.Pradhan for respondent no.1, Mr.Atre for respondent no.2 and Mr.Dhakephalkar, learned Senior Counsel with Mr.Bandiwadekar for respondent nos.3 and 6. 2. This application prays for leave to amend Writ Petition No.7415 of 2003 and mainly on the ground that while this petition along with connected writ petitions i.e. Writ Petition 2 Nos.7414, 8246 and 8607 of 2003 was pending for final decision, the Government of Maharashtra has exercised its powers under Article 309 of the Constitution and framed Rules to amend the Assistant Engineers’ (Civil), Grade II, in the Maharashtra Service of Engineers, Group B (Recruitment) Rules, 1997 as per the notification dated 8th July 2009. The amended Rules are called the Assistant Engineers’ (Civil), Grade II, in the Maharashtra Service of Engineers, Group B (Recruitment) (Amendment) Rules, 2009 and, therefore, the petitioners seek to challenge the said amended Rule as it affects their claim in the pending petitions. 3. The State of Maharashtra as well as some of the other contesting respondents have filed affidavits-in-reply and have opposed the amendment. Firstly it is submitted that on account of the amendment of these Rules sought to be challenged by the petitioners, the petition itself has become infructuous and the remedy of the petitioners to challenge the amended Rules lies before the Maharashtra Administrative Tribunal by filing a fresh Original Application and in this regard reliance has been placed on the decision of the Supreme Court in the case of L. Chandra Kumar v. Union of India [AIR 1997 SC 3 1125]. It has been also submitted that if there is a fresh cause of action for the petitioners to seek relief, they must initiate fresh proceedings under the Administrative Tribunals Act, 1985 and, therefore, the pending petitions are required to be disposed off as infructuous and the petitioners in Writ Petition No.7415 of 2003 may approach the Maharashtra Administrative Tribunal and unless such a remedy as available at the first instance is invoked, the amendment need not be allowed. It was also submitted that when an alternative remedy to challenge the amended Rule is available to the petitioners before the Maharashtra Administrative Tribunal, this Court would be slow in entertaining a direct challenge to the said Rules and it would be in keeping with the law laid down by the Supreme Court in L. Chandra Kumar’s case that they are relegated to the remedy available at the first instance before the MAT. Mr.Dhakephalkar, the learned Senior Counsel also submitted that if the challenge to the amended Rules is entertained in the pending petition, the respondents’ remedy available to challenge the judgment of the MAT before the High Court would be taken away. 4. We have considered the rival submissions made before 4 us and a brief history of the pending litigation is required to be noted as under. The Government issued a Resolution dated 1/3/2000 for the regularisation of Assistant Engineers Grade-II appointed on temporary / ad-hoc basis pursuant to the earlier G.R. dated 18/9/1984 and the said G.R. of 1st March 2000 came to be challenged by the petitioners in Writ Petition No.2480 of 2000. The said petition came to be disposed by this Court with liberty to the petitioners to approach the Maharashtra Administrative Tribunal and consequently they filed Original Application No. 421 of 2003 before the Tribunal. It was partly allowed as per the judgment and order dated 11/9/2003 and all the present parties before us were aggrieved by the said decision and Writ Petition No.7415 of 2003 has been filed by the applicants, Writ Petition No.8607 of 2003 has been filed by the State, Writ Petition No.7414 of 2003 has been filed by original respondent nos.3, 5 and 6 and Writ Petition No.8246 of 2003 came to be filed by some of the aggrieved parties. All these petitions came to be decided by a common order dated 26/7/2006 and the Original Application No.421 of 2003 was remanded for fresh decision in accordance with law. This order came to be 5 challenged before the Supreme Court in Civil Appeal No.4434 of 2006 and it came to be set aside. The Supreme Court requested us to decide all the petitions within three months and the Hon’ble Chief Justice was requested to place the petitions before an appropriate bench for early disposal within the stipulated time as set out in the order. When the petitions came up before this Court on 14/1/2008 the order passed by the Supreme Court was noted and on 5/8/2008 the learned Government Pleader made a statement before this Court that the Government was considering amendment to the Rules of 1997 and, therefore, four weeks time was granted. 5. Rules of 1997 were made effective from 1/4/1981 and Rule 8 therein provided for a mechanism for regularisation of the services of the ad-hoc / temporary Assistant Engineers. This Rule 8 was sought to be amended by the Government by issuing a Resolution on 1/3/2000 and an additional category of the Diploma Holder Junior Engineers with AMIE or equivalent qualifications was also added for regularisation of ad-hoc Assistant / Junior Engineers. The Tribunal invalidated this GR in 6 respect of those Engineers who came to be appointed on ad- hoc basis from 17/4/1984 to 31/12/1996 and, therefore Writ Petition Nos.7414, 7415, 8246 and 8607 of 2003 came to be filed before this Court which indicated that all the parties before the Tribunal were affected by this Judgment. Rule 8 of the Recruitment Rules, 1997 is sought to be revised by the amended Rules 2009 during the pendency of these petitions. The regularisation of the appointment of temporary Junior Engineers / Assistant Engineers appointed right from 2/4/1981 is the subject matter which is under consideration and some of them have put in almost about 28 years of service. The applicants have been appointed through the Maharashtra Public Service Commission as per the Rules of 1997 and have been either before this Court or MAT on challenge to the G.R. dated 1/3/2000 for the last about nine years. The Supreme Court clarified in L. Chandra Kumar’s case (Supra) that the Tribunals will continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted and it will not be open for the litigants to directly approach the High Courts even in cases where the question of vires of statutory legislation (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) 7 arises by overlooking the jurisdiction of the concerned Tribunal. In these peculiar facts of this case, we are satisfied that the amendment application deserves to be allowed, more so when the amended Rules sought to be challenged by the amendment have been framed during the pendency of these petitions before this Court and it is not a case of challenge being raised at the first instance. What has been done by the amended Rules is to replace or further expand the scope of the provisions made in the GR dated 1/3/2000 for the regularisation of the ad- hoc Assistant / Junior Engineers and it would not be in the interest of justice for any of the parties before us to relegate the applicants to the remedy before the Tribunal by disposing the pending group of Writ Petitions. 7. Hence the application is allowed in terms of prayer clause (a). Amendment be carried out by 24th September 2009. Additional Return, if any, by any of the respondents shall be filed within two weeks. All the four writ petitions be listed for final hearing on 8th October 2009 peremptorily. (SMT.ROSHAN S. DALVI,J.) (B.H.MARLAPALLE,J.)