1 wp5266.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5266 OF 2008 WITH CIVIL APPLICATION NO. 11970 OF 2008 01. Rajendra Pandurang Pagare, age 38 years, occup. unemployed, r/of 2532, Ramai Nagar, New Bhokardan, Tq. Bhokardan, District Jalna. 02. Sk. Anisoddhin Sk. Kamroddhin, age 33 years, occup. unemployed, r/of Millan STD, Opp. Panchayat Samiti, New Bhokardan, Taluka Bhokardan, District Jalna. Petitioners versus 01. The State of Maharashtra, through the Chief Secretary, Mantralaya, Mumbai. 02. Superintending Engineer, P.W.D., behind Old High Court Building, Aurangabad. 03. Member Secretary, Selection Committee and Executive Engineer, PWD (West) Division, Padampura, Aurangabad. 04. Vijaykumar Bhagvan Pole, age 35 years, occup. service. 05. Subhash Ganpati Dhature, age 33 years, occup. service, both r/o c/o R-2. Respondents 2 wp5266.08 WITH WRIT PETITION NO. 4102 OF 2009 01. Kavita Vashishtra Taware, (Kavita d/o Shrimant Unvane) age 33 years, occup. unemployed, r/of C/of Dadarao Pakhare, Bhakti Construction, Eknath Nagar, Beed-431122. 02. Vilas s/o Ramrao Bahirwal, age 24 years, occup. unemployed, r/of Opp. Saraswati Vidyalaya, Mauli Colony, Old Dhanora Road, Beed- 431122. (Petitioner No.2 deleted as per Court's order dated 10.6.2011) 03. Deepak s/o Baburao Gavhane, age 21 years, occup. unemployed, r/of at post Pali, Taluka and Dist. Beed. 04. Ranjit s/o Baburoa Gavhane, age 24 years, occup. unemployed, r/of at post Pali, Tq. & Dist.Beed. 05. Sachin s/o Shrimant Unvane, age 24 years, occup. unemployed, r/of c/of Dadarao Pakhare, Bhakti Construction, Eknath Nagar, Beed- 431122. 06. Sanjay s/o Ganpatrao Mahanwar, age 37 years, occup. unemployed, r/of at post Tq. and Dist. Beed, (Trade Union Center, Shriram nagar Beed). 07. Jagdish s/o Bhikan Giri, age 40 years, occup. unemployed, r/of 4-40-476, Ashtavinayak Colony, Jai Bhavani Nagar, N-4, Cidco, Aurangabad. 3 wp5266.08 08. Parshuram s/o Dnyanoba Jadhav, age 27 years, occupation: labour, r/of Subash Colony, Nairandi Road, Beed. Petitioners versus 01. The State of Maharashtra Through the Secretary, P.W.D. Department, Mantralaya, Mumbai-32. 02. Superintending Engineer, P.W. Department, Circle, Aurangabad. 03. Executive Engineer, P.W. Department, Padampura, Aurangabad. 04. Girish S/o Shrikrishna Dhawale 05. Bhanudas S/o Ramchandra Nikalje 06. Manoj S/o Vinayakrao Chaudhary 07. Rajendra S/o Laxman Chaudhary 08. Sameer S/o Namdeo Nirukhe 09. Chandrakant S/o Shankarrao Sataw 10. Harish S/o Vishnu Garje 11. Rajesh S/o Madhukarrao Kankale 12. Sanjaykumar S/o Linguram Bhosale 13. Balasaheb S/o Deosing Rathod 14. Anju s/o Sambhajirao Kale 15. Narendra S/o Shriram Bhagat 4 wp5266.08 16. Sanjay S/o Vishnu Bhorde 17. Pravin S/o Shrikrushna Tawde 18. Sudhakar S/o Sulaji Patil 19. Babulal S/o Ramlal Choundiye 20. Mangesh S/o Anant Gosavi 21. Ashish S/o Shirish Waghchaure 22. Mahesh S/o Prabhakar Kharche 23. Dattatrya S/o Shiuram Munjal 24. Surkha Bhimrao Korke 25. Shilpa Chandrabhan Jadhav 26. Shradha Shivajirao Chavan 27. Geetanjali Ramrao Gawande 28. Smita Panditrao Shiradhonkar 29. Pradnyarani Prabhakar Bhuktar 30. Yogita Kalidas Gandale 31. Suvarna Vijay Sonawane 32. Ashvini Balajipant Kulkarni 33. Supriya Ravikiant Dhokar 34. Bahirji S/o Udhav Shinde 35. Satish S/o Tukaram Rathod 36. Devchand S/o Zamu Rathod 37. Praveen S/o Chindhu Jadhav 38. Sanjay S/o Nandusing Chavan 5 wp5266.08 39. Manoj S/o Tulshiram Rathod 40. Sunil S/o Mangilal Rathod 41. Mahesh S/o Malhari Khandagle 42. Purushottam S/o Uddhaotrao Meshram 43. Manoj S/o Laxman Jiwanwal 44. Mukesh S/o Ashok Tongire 45. Sandip S/o Ramdas Yadmarale 46. Saptnil S/o Laxmanrao Hande 47. Sanjay S/o Mainaji Bansode 48. Chandrashekhar S/o Ramesh Kundare 49. Dhanraj S/o Kisanrao Charthal 50. Vinayak S/o Pralhad Gawade 51. Ganesh S/o Narayanswami Dakur 52. Minketan S/o Bhanudasji Kale 53. Tukaram S/o Vitthalrao Pingale 54. Sunil S/o Shaligram Jumle 55. Krishna S/o Hiralal Sagar 56. Balika Madhukar Suryawanshi 57. Swati Sheshrao Ghodke 58. Dipali Ambadas Fiske 59. Karuna Baburao Zade 60. Pushpa Bhaskar Chavan 61. Priti Trimbak Sirsath 6 wp5266.08 62. Rahul S/o Prabhakar Satdive 63. Subhash S/o Ganpati Dhature 64. Harish S/o Bhagwan Jagale 65. Amit S/o Nasir Tadvi 66. Ganesh S/o Manik Ushire 67. Priya Ramesh Chilwar 68. Suresh S/o Prabhu Chaure 69. Mahesh Rajaram Gayakwad 70. Vitthal S/o Jagdaorao Shinde 71. Baburao S/o Ambadasrao Dhingane 72. Omprakash S/o Madhukarrao Khursade 73. Vijaykumar S/o Bhagwan Pole 74. Pramod S/o Rajaram Doiphode 75. Indu Shriram Damle 76. Ajay Rangnath Satpute 77. Yogesh S/o Tukaram Kangankar 78. Dhiraj S/o Purushottam Bansod 79. Sandip S/o Giridhar Bhalerao 80. Sumedh S/o Pritam Sapkale 81. Anant S/o Wasudeo Tayade 82. Sachin S/o Arjun Sapkale 83. Samit S/o Ashok Shinde 84. Ganesh S/o Dadarao Magare 7 wp5266.08 85. Shrikant S/o Pralhadrao Handare 86. Anil S/o Namdeorao Suroshe 87. Sanjay S/o Nishikant Bagate 88. Kiran S/o Shankar Tayade 89. Sudam S/o Kerba Ukande 90. Santosh S/o Vishnu Shirsath 91. Sachin S/o Gangadhar Kamble 92. Changdev S/o Bhimrao Bangar 93. Sachin S/o Sadashivrao Wagh 94. Shamsundar S/o Gahininath Kayande 95. Bramhchari S/o Shivram Ghadge 96. Purushottam S/o Keshaorao Chopkar 97. Tushar S/o Purshottam Ugale 98. Nilesh S/o Dattatraya Metkar 99. Dattatrya S/o Bhagwantrao Kapile 100. Prashant S/o Dhanyakumar Doke 101. Arun S/o Tryambakrao Dahake 102. Datta S/o Shamrao Taro 103. Dnyaneshwar S/o Gajanan Harne 104. Ramesh S/o Balkrushna Rudsamudra 105. Shashikant S/o Uttam Ingale 106. Shabana Gafursaheb Shaikh 107. Aswini Rajendra Gore 8 wp5266.08 108. Swati Prakash Jadhav 109. Shubhangi Santosh Patil 110. Bhagyashri Girdhar Sanse 111. Bharat S/o Sudam Chavan 112. Manoj S/o Shivaji Jadhav 113. Sandeep Tukaram Vikhe 114. Vijendra S/o Ashokrao Dekate 115. Sagar S/o Mohanrao Gewar 116. Rambhau Santaram Rashinkar 117. Diksha Sahebrao Pagare 118. Sanjay S/o Sheshrao Dhore 119. Sandeep S/o Shriram Bathe 120. Ajay S/o Ramkrishna Patil 121. Vijay Keshaorao Chopkar 122. Swati Venkatrao Birajdar Age of all 30 to 35 years, Occ. of all Civil Engineering Assistants with Resp. no. 2. ..Respondents ---------- Shri R.R. Mantri, Advocate for Petitioners in both the petitions. Shri N.B.Khandare, Govt. Pleader for Resp. Nos. 1 to 3 in both petitions. Shri Murli Karad Advocate, holding for Shri S.S. Thombre Advocate for Respondent No.4 in WP 5266/08 and Respondent No. 73 in Writ Petition no.4102 of 2009. Shri Rajendra Deshmukh, Adv. for Respondent Nos. 5 in WP No. 5266/2008 and Respondent Nos. 30, 56, 58, 65, 71, 77, 84, 87 and 93 in WP No. 4102/2009. Shri S.S. Halkude, Advocate for Respondent Nos. 5, 52, 53, 74, 85, 95, 106, 111, 119 and 121 in Writ Petition No.4102/2009. 9 wp5266.08 Coram : Smt. Nishita Mhatre & M.T. Joshi, JJ. Judgment reserved on: 10th June 2011. Judgment pronounced on: 04th July 2011. Judgment (Per: Smt. Mhatre, J.) 01. Rule. Rule made returnable forthwith, with the consent of the parties. Since the issues involved in both these petitions are the same, they have been heard together, with the consent of the parties. 02. The challenge in both these petitions is to the selection of the private respondents (hereinafter referred to as the respondents) to the posts of Civil Engineering Assistants, pursuant to the advertisement No. 2/2008. The petitioners claim that these respondents did not possess the qualifications required for being selected to the posts of the Civil Engineering Assistants, in consonance with the recruitment rules. The petitioners contend that each of them had undertaken a special course expected to be completed by candidates aspiring to be Civil Engineering Assistants, whereas the respondents had no such qualification. In essence, therefore, what has been challenged in the present petition, is the selection of the respondents to the posts of the Civil Engineering Assistants. 03. Mr. Khandare, the learned Government Pleader appearing for the State and its officers, who are arraigned as the respondents in the petitions, and Mr. Deshmukh, the learned Counsel appearing for the private respondents, raised a preliminary objection to the maintainability 10 wp5266.08 of the present petitions. They pointed out that the petitioners ought to have approached the Maharashtra Administrative Tribunal, to have their grievance redressed, rather than preferring writ petitions in this court, under Articles 226 and 227 of the Constitution of India. They have relied upon the judgement of the Supreme Court in the case of L. Chandra Kumar vs Union of India and others reported in (1997) 3 SCC 261, wherein a bench of seven learned judges has held that the only remedy available to employees challenging the recruitment rules for posts in State Govt., or with respect to any service matter, is to file an application before the Administrative Tribunal, under Section 15 of the Administrative Tribunals Act. Counsel therefore, submitted that the writ petitions ought to be dismissed in limine. 04. Mr. Mantri, the learned Counsel for the petitioners, contended that the petitioners should not be driven to approach the Administrative Tribunal at this stage, because all of them would soon be crossing the age limit prescribed for being appointed as Civil Engineering Assistants. He submitted that since there are no disputed facts, it would be pointless to approach the Administrative Tribunal. According to him, the petitioners had, in fact, chosen to curtail their right of approaching the Administrative Tribunal and availing of the consequential remedy, in case the Administrative Tribunal errs in its decision. He, pointed out that a writ of quo warranto, which is sought in the present petitions against the private respondents, cannot be issued by the Administrative Tribunal and, therefore, the only course available to the petitioners, was to approach this Court. He further submitted that although the petitions 11 wp5266.08 were filed in the year 2008/2009 and notices had been issued to the respondents, the matters have seen the light of the day before us after almost three years and, therefore, the petitioners are well within their rights to insist on being heard by this Court in its extra-ordinary jurisdiction. He then submitted that when these matters appeared before successive Division Benches for admission, the respondents had raised the same preliminary objection and the Division Benches were satisfied that the petitioners had made out a case for being heard by this court in its extra-ordinary jurisdiction. He relied upon several judgements in support of his submission that the petitioners are entitled to invoke the extraordinary writ jurisdiction of this Court although a statutory remedy is available to them, as their fundamental rights have been affected. We would presently advert to these judgements. 05. While considering whether Administrative Tribunals constituted under the Administrative Tribunals Act, 1985 are empowered to adjudicate on the vires of statutory provisions or consider whether there is a breach of any fundamental rights guaranteed under the Constitution, the Supreme Court in the case of L. Chandra (supra) has, in paras 93 and 99, opined thus: "93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in 12 wp5266.08 this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates that particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned." 99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional . The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of 13 wp5266.08 the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. " 06. In our opinion, therefore, there can be no manner of doubt that the only remedy available to the petitioners was to file an application before the Maharashtra Administrative Tribunal under the aforesaid Act. The petitioners had ample opportunity to approach the Tribunal, once the respondents had raised the issue regarding maintainability of the writ petitions. However, for approximately three years, the petitioners neglected to remedy this lapse on their part. They have chosen to continue to prosecute these writ petitions, knowing full well that an appropriate alternative and efficacious remedy is available to them. It is true that the existence of a statutory remedy need not always be a hurdle in the way of the High Court in exercising its writ jurisdiction. However, it is now well settled that although the constitutional remedy under Article 226 and 227 of the Constitution of India is available, there is a self imposed restraint observed by the High Court while exercising this extraordinary discretionary jurisdiction. Mr. Mantri has relied upon 14 wp5266.08 the judgments of the Supreme Court in the cases of (i) L. Hirday Narain vs. Income-Tax Officer, AIR 1971 SC 33, (ii) State of H.P. vs. Gujarat Ambuja Cement Ltd. AIR 2005 SC 3936, (iii) K. Ventatachalam vs. A. Swamickan (1999) 4 SCC 526, (iv) Harbanslal Sahnia vs. Indian Oil Corp. Ltd AIR 2003 SC 2120, and judgment of the Full Bench of the Andhra Pradesh High Court in the case of Secretary, Badruka College of Commerce & Arts. vs. State, AIR 1997 A.P. 179, in support of his submission that the writ petitions are maintainable and can be entertained by this Court in spite of the statutory remedy. 07. In State of H.P. vs. Gujarat Ambuja Cement Ltd. (supra), the Supreme Court, after considering its earlier judgements on the issue whether the High Court ought to exercise its writ jurisdiction when an alternate remedy is available, has held as follows; "25. Where, under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But, normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971 SC 33) that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the 15 wp5266.08 ground of non exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition." 08. Therefore, although "Article 226 of the Constitution is a store- house or a reservoir or even a dam of justice, equity and good conscience which are meant for exercising within the discretionary power of the Court vested in that article to do full and complete justice" as observed by the Full bench of the Andhra Pradesh High Court in the case of Secretary, Badruka College of Commerce & Arts (supra), one will have to reconcile these principles with the decision of the Apex Court in L. Chandra's case (supra). The Apex Court, as observed earlier, has held in this judgement that the High Court should not entertain any petitions pertaining to service matters, as envisaged under the Administrative Tribunals Act, and the parties must be relegated to the Tribunal. In our opinion, the petitioners ought to have, therefore, approached the Administrative Tribunal in the first instance, rather than invoking this court's extra-ordinary jurisdiction. 09. We do not find any order on record in these proceedings indicating, as Mr. Mantri wants us to believe, that successive Division Benches had heard the preliminary objections raised by the respondents and had opined that the petitions were maintainable. The record does not support this contention of Mr. Mantri. His submissions that because there are no disputed questions of facts, or because the petitioners are on the verge of crossing the age limit for recruitment to the posts of Civil Engineering Assistants, the petitioners need not have approached the 16 wp5266.08 Tribunal, are unacceptable. Mr. Mantri's submission that the petitioners have, in fact, by filing these petitions, curtailed one remedy available to them and their right to challenge the order passed by the Administrative Tribunal, if it decides against them, is stated only to be rejected. The petitioners have done nobody any favour by choosing to approach this court, although an efficacious alternate remedy is available to them. In fact, as held in the case of L. Chandra (supra) by the Supreme Court, the statutory remedy is the only remedy available to an employee seeking any redressal of their grievances regarding service matters. 10. We have no manner of doubt, therefore, that the Writ Petitions ought to be dismissed in limine. However, since the petitions have been adjourned time and again for one reason or the other for almost three years, we have considered the merits of the petitioners' case. 11. On merits, Mr. Mantri has argued that the petitioners had completed a course which was tailor-made for the post of Civil Engineering Assistants. He pointed out that none of the Respondents had completed this course. According to him, the Respondents had secured Diplomas or Degrees in Civil Engineering which would not, in any way, indicate that they were qualified to be appointed as Civil Engineering Assistants, which requires specific knowledge. He then submitted that the rules for recruitment of Civil Engineering Assistants do not admit of any departure from these qualifications and, therefore, merely because the Respondents were qualified with degrees and diplomas in engineering, it could not result in their appointments to the 17 wp5266.08 posts of Civil Engineering Assistants. The learned Advocate has relied on the judgement of this Court in Machindra Namdeo Kanade and ors. vs. The State of Maharashtra and ors. (Writ Petition No. 7195 of 2006 and connected matters, decided on 24.3.2009). He pointed out that the Division Bench, while dealing with the same recruitment rules, has, in para 13, observed thus; "13. It is undisputed before us that once Recruitment Rules under Article 309 of the Constitution of India had been framed, the recruitment to the post for which the Rules have been framed should be made strictly in accordance with the Recruitment Rules prescribed. No deviation is contemplated nor any such deviation be countenanced. The Recruitment Rules particularly dealing with the recruitment by nomination clearly spell out the educational qualifications which a candidate must possess for being appointed on the post of Civil Engineering Assistant. The language of the Recruitment Rules is clear and explicit and does not even by implication lead to an inference that the qualification which is prescribed is the minimum qualification. We are informed that no instructions have been issued for equating the qualification possessed by the selected candidates with the qualification which is prescribed under the Rules. Since the language of the Rules is explicit and clear and is not ambiguous, it is not necessary to refer to the various Government Resolutions as well as the recommendations of the Study Group to determine if the qualification which is prescribed under the Rules is the only qualification or whether it is the minimum qualification. However, even if a reference is made to the Govt. Resolution and the Report of the Study Group, it is clear that the qualification for appointment by nomination 18 wp5266.08 to the post of Civil Engineering Assistant is concerned, the qualification which is prescribed is "the only qualification" and not minimum qualification. The Government has not granted equivalence to the qualification possessed by the respondents/selected candidates to the qualification which is prescribed under the Rules. If that be so, then the respondents obviously do not possess the requisite educational qualification. At this juncture a reference may usefully be made to the educational qualifications prescribed in the advertisement. The language of the advertisement is clear and unambiguous and contemplates only the qualification which is prescribed under the Rules. There is not even an oblique reference to invite applications from candidates possessing other equivalent qualification. If that be so, the qualification which a candidate must possess for being appointed to the post of Civil Engineering Assistant would be the educational qualification prescribed under the Rules and no other qualification. " Mr. Mantri also submitted that the recruitment rules do not envisage equivalence being given to either a Degree or A Diploma in Engineering by the government. By the amendment of 11.3.2008, according to him, equivalence has been granted only to the courses for Architectural Draughtsman and Construction Supervisor. He, therefore, submitted that the government could not recruit any other person except the petitioners to these posts, as they were suitably qualified. 12. Mr. Khandare, the learned Government Pleader drew our attention to the notification indicating that the recruitment rules have amended, on 7.3.2008. According to him, rule 3(b) (i) and (ii) of the 1998 recruitment rules, has been amended inasmuch as the government is 19 wp5266.08 empowered to appoint, not only those who have completed the course of Civil Engineering Assistant within one year from a recognized institution, but also those who have completed those courses which the government has declared to be equivalent to the aforesaid course. He drew our attention to the amended rule wherein the aforesaid qualifications are prescribed as the “minimum” qualifications and not the “only” qualification. He further submitted that the amended rules do not bar the appointment of any person who has a higher qualification, as the minimum qualification required has been prescribed in the rules. Mr. Khandare then urged that, considering the hierarchy of the employees in the Public Works Department, a person eligible to be