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. 439 OF 2009 AND CIVIL APPLICATION NO. 1889 OF 2009 1. Sunita Daulatrao Patil and ors. .. Petitioners Vs. 1. The State of Maharashtra and ors. .. Respondents WITH WRIT PETITION NO. 6619 OF 1998 1. Shyam Jahagirdar and ors. .. Petitioners Vs. 1. The State of Maharashtra and anr. .. Respondent WITH WRIT PETITION NO. 7414 OF 2003 1. Shri G. P. Aparajit and ors. .. Petitioners Vs. 1. The State of Maharashtra and ors. .. Respondents WITH WRIT PETITION NO. 8246 OF 2003 2 1. Milind Shashikant Pande and ors. .. Petitioners Vs. 1. Smt. Sunita Daulatrao Patil and ors. WITH WRIT PETITION NO. 8607 OF 2003 The State of Maharashtra .. Petitioner Vs. Sunita D. Patil and ors. .. Respondents Mr. A. V. Anturkar i/by Mr. V.S. Talkute for petitioners in W.P. No. 7415 of 2003. Mr. N.V. Bandiwadekar for petitioner No.3 in W.P. No. 7414 of 2003. Mr. P.M. Pradhan, Spl. Counsel with Mr. S.R. Nargolkar, AGP for Respondent No.1 in W.P. No. 7415 of 2003, for Respondent Nos.1 and 2 in W.P. No. 6619 of 1998, for Respondent No. 1 in W.P. No. 7414 of 2003, for Respondent Nos. 5 and 6 in W.P. No. 8246 of 2003 and for petitioner in W.P. No. 8607 of 2003. Mr. S.R. Atre, for MPSC. Mr. P.K. Dhakephalkar, Senior Advocate i/by Mr. N.V. Bandiwadekar for respondent nos.3 and 6 in W.P. No. 7415 of 2003. Mr. A.R. Pitale for respondent no.5 in W.P. No. 7415 of 2003. CORAM : B.H. MARLAPALLE & SMT. ROSHAN DALVI, JJ. Judgment reserved on 18 th December, 2009 Judgment declared on 17th March, 2010. 3 J U D G M E N T ( Per B. H. Marlapalle, J.) 1. These petitions challenge the judgment and order dated 11.9.2003 rendered by the Maharashtra Administrative Tribunal in Original Application No. 421 of 2003, which was filed by Mrs. Sunita Daulatrao Patil and three others. 2. Brief facts, leading to these petitions, are set out as under: i. The Maharashtra Legislative Assembly resolved on 10.3.1981 that the degree holders Junior Engineers-Class-III who were appointed before April, 1981 should be given gazetted officer’s status and consequently, the cadre of Assistant Engineer, Grade-II, Class-II was created on 19.3.1981 for direct recruitment by Maharashtra Public Service Commission (MPSC) for degree holder Engineers w.e.f. 1 st April, 1981. On 16 th April, 1984, a Government Resolution came to be issued giving effect to his decision. However, on 18.9.1984, the Government of Maharashtra issued a Government Resolution prescribing procedure to be followed for appointment of Assistant Engineers on ad hoc and temporary basis for a period of four months to one year, until 4 the regular Recruitment Rules were framed by the State Government such engineers on ad hoc temporary basis came to be appointed and on 19.7.1993, the State Government issued a circular providing for a committee consisting of Chief Engineer and two Superintendent Engineers. ii. For the first time on 25.12.1996, the MPSC advertised for direct recruitment of Assistant Engineers- Class – II through open competitive examination and the applications were required to be submitted by 25.1.1997. This advertisement came to be challenged before the Mahashtra Administrative Tribunal (MAT) by some of the ad hoc Assistant Engineers, Class-II on the ground that the MPSC could not have started recruitment process of gazetted status engineers unless the Recruitment Rules were framed by the State Government, but on 27.1.1997, the Tribunal disposed off the said application by directing the State Government to frame Rules. Review petition No. 13 of 1997 was decided on 22.4.1997, giving time of two months to the State Government to frame the Recruitment Rules and on 16.6.1997, it framed the Recruitment Rules. Rule-8 of the said Rules provided for procedure to be followed for the regularization of the ad-hoc Assistant Engineers, Class-II. In July/August, 1997, the MPSC conducted only an oral examination for the ad hoc Assistant 5 Engineers who had completed minimum three years service on 31.12.1996, and 509 of such ad-hoc Engineers appeared for the said examination and out of them, 491 passed the oral examination, where as remaining 14 failed. No steps were taken by the Government to regularize these 495 ad hoc engineers on their passing of the oral examination conducted by the MPSC as per Rule-8 of the Recruitment Rules 1997. iii. A combined written examination was conducted by the MPSC on 13 th and 14 th December, 1998 and examinees were those who had applied directly to the MPSC advertisement as well as those ad hoc Assistant Engineers,Class II who had less than three years service as on 31.12.1996. At least 97% of these ad-hoc engineers who had less than three years service on 31.12.1996, failed in that examination as per the result published on 20 th April, 1999. Successful candidates were called for viva voce which was conducted in May-July, 1999 and the final results were published on 19 th Sept. 1999. iv. While the select list was prepared by the MPSC and was pending for appointment order to be issued by the Government, the Government issued a Resolution dated 1.3.2000 amending Rule-8 of the Recruitment Rules 1997 and the procedure for regularization of the ad hoc Assistant 6 Engineers Class-II was sought to be changed. The summer session of the Legislative Assembly had commenced on 13 th March, 2000 and the Government Resolution dated 1.3.2000 was not placed before the Assembly, as required under Article 320(5) of the Constitution of India, as per the petitioners. This resolution came to challenged in Writ Petition No. 2480 of 2000 which was filed on 9.5.2000 and on the same day, the learned Vacation Judge had stayed the operation of the said resolution. However, on 6.3.2003, the Writ Petition came to be disposed off with liberty to the Petitioners to approach the MAT and this order dated 6.3.2003 came to be challenged in Special Leave Petition (Civil) No. 5583 of 2003 and the SLP was dismissed on 10.4.2003. The petitioners then approached the Tribunal by filing Original Application No. 421 of 2003 and after hearing all the parties concerned, the Original Application was decided on 11.9.2003. The operative part of the said order reads as under: “The Original Application is partly allowed. The Government Resolution dated 1.3.2000 is partly held to be invalid and set aside. It is invalid in respect of 507 posts of Assistant Engineers Grade-II (Class-II) (Civil) contemplated by Group “B” and in respect of 399 posts of Assistant Engineers Grade-II (Class-II) (Civil) contemplated by Group “C”. It is made clear that they 7 can be regularized following the Rules of 1997. The rest of the G.R. is upheld. O.A. Disposed off accordingly.” The above order passed by the Tribunal came to be challenged in this group of petitions and on 26.7.2006, the petitions were partly allowed. The impugned order, passed by the Tribunal, was set aside and Original Application No. 421 of 2003 was remanded for fresh decision in accordance with law, requesting the tribunal to decide it as early as possible, preferably within four months. Interim order of stay to the operation of the Government Resolution dated 1.3.2000 was continued for two more weeks. This order dated 26.7.2006 came to be challenged by some of the ad hoc appointees in Special Leave Petition (Civil) No. 12960 of 2006. On 9.10.2006, the Supreme Court was pleased to set aside the order dated 26.7.2006 passed by this Court, with a request to dispose off these petitions within three months. 3. During the pendancy of these petitions , the Government of Maharashtra issued a Notification on 8.7.2009 and published the Assistant Engineers (Civil) (Grade-II) in Maharashtra Services of Engineers, Group-B Recruitment (Amendment) Rules, 2009. Under the said Rules, the State Government amended Rule-8 of the Recruitment Rules,1997, in place of the impugned Government Resolution dated 1.3.2000 and immediately thereafter, the petitioner took out Civil 8 Application No. 1887 of 2009 seeking amendment in the petition so as to challenge the amended Rule 8 of the Recruitment Rules for providing regularization of the Assistant Engineers appointed on ad hoc and temporary basis. By our order dated 18.9.2009, the said application was allowed and thus the petitioners have challenged, by way of additional prayers, the validity of the amended Rule-8, in the Recruitment Rules-1997. 4. There is no dispute between the parties that the Government Resolution dated 1.3.2000 was not acted upon at any time and on amendment of the Recruitment Rules, on 8.7.2009, the said GR ceased to exist and therefore, the challenge to the said G.R. as well as to the order passed by the Tribunal came to an end. We are, therefore, required to examine only the challenge to the amended Rule 8 of the Recruitment Rules, providing for the regularization of the ad-hoc and temporary appointed Assistant Engineers, Grade-II, in this group of petitions. 5. We reproduce herein below Rule 8 of the Recruitment Rules, 1997 and the very same rule, amended in the year 2009 which is under challenge, as under: Rule-1997. 8. Notwithstanding anything contained in Rule 3, the temporary appointments made to the posts till the 31 st December, 1996, may be regularized in the following manner, 9 namely: (a) The persons who have completed minimum three years of continuous service as on the 31 st December, 1996, and have satisfied the requirements of qualification and age limit mentioned in rule 3, at the time of their appointment, shall have to qualify in viva-voce or limited Competitive examination to be held by the commission during 1997-98. (b) Services of those persons who will qualify in such examination will be regularized. (c) The seniority of such qualified persons shall be fixed as per the existing rules notified vide Government Notification, General Administration Department, No. SRV 1076/XII, dated 21 st June, 1982 regarding fixation of seniority. (d) The services of persons who do not qualify in such examination shall be terminated by the Government. (e) The persons who have been appointed to the posts on or after 1 st January, 1994 but on or before 31 st December, 1996 and who possess the qualification mentioned in rule 3(ii) shall, in relaxation if necessary of the age limit prescribed in Rule 3(i), be required to get selected in the first attempt in the regular combined competitive examination to be held by the commission during 1997-98. Service of such persons who have not been selected in the above competitive examination shall be terminated by the Government, and the seniority of 10 selected persons shall be fixed in accordance with the rules mentioned in Government Notification, dated the 21 st June, 1982, mentioned in rule 8(c). Amended Rule- 2009. “8. Notwithstanding anything contained in Rule 3, the appointments made to the posts till the 16 th June, 1997, shall be regularized in the following manner, namely:- (a) The persons appointed on regular basis during the period from the 2 nd April, 1981 to the 16 th April, 1984 to the post of Graduate Junior Engineers (Class-III) either through the State Selection Board or from the candidates who have given bonds for serving in Government service as per the then prescribed procedure for appointment, shall have to pass viva- voce test that shall be the qualifying examination, to be held by the Commission during the period 2009-2010 or immediately thereafter, to enable them to be absorbed in the cadre of Assistant Engineer, Grade II (Junior Gazetted Class- II), created for Graduate Junior Engineers vide Government Resolution, Irrigation Department No. CDS 1582/158(215)/ EST-(10), dated the 16 th April, 1984. (b) The Diploma holder Junior Engineers regularly appointed in Class-III post and who have obtained A.M.I.E. (Equivalent to B.E. Degree) or B.E. Degree while in service 11 have been given benefit of 3/8 th of service rendered as Junior Engineer, during the period from the 1 st April, 1981 to 16 th June, 1997, in the light of the provisions of the Government Resolution, Irrigation Department, No. S.L.S. 2681/1273/ (500)/EST(8), dated the 29 th November, 1984. Such persons shall have to pass viva-voce test that shall be the qualifying examination, to be held by the Commission during 2009-2010 or immediately thereafter, to enable them to be absorbed in the cadre of Assistant Engineer, Grade II, vide Government Resolution dated 16 th April, 1984. (c) Services of persons appointed on temporary basis to the post of Assistant Engineer, Grade-II, during the period from the 17 th April, 1984 to 21 st December, 1996 and who have already qualified in viva voce test held by the Commission from the 7 th August, 1997 to 2 nd September, 1997 and those who have qualified in the combined competitive examination held by the Commission during the period from the 12 th December, 1998 to 13 th December, 1998 shall be regularized in the cadre of Assistant Engineer, Grade-II from the date of their initial appointment in the cadre of Assistant Engineer, Grade-II. (d) The persons appointed during this period from 17 th April, 1984 to 31 st December, 1996, and not qualified in the above said viva-voce test or Combined Competitive Examination as the case may be held by the Commission shall 12 have to pass in the viva-voce test to be held by the Commission during the period 2009-2010 or immediately thereafter, to enable them to get regularized in the cadre of Assistant Engineer, Grade-II. (e) Persons who do not pass such viva-voce test shall be given second opportunity to appear for the viva-voce test to be held by the Maharashtra Public Service Commission, to enable them to get their services regularized in the cadre of Assistant Engineer, Grade-II. (f) The persons who do not pass in the second attempt shall be given one more opportunity by way of last chance to appear for the viva-voce test to be held by the Maharashtra Public service Commission, to enable them to get their services regularized in the cadre of Assistant Engineer, Grade- (g) The services of persons mentioned in clauses (a), (b), (d), (e) and (f) of this rule, who pass the viva-voce test to be held by the Commission during the period 2009-2010 or immediately thereafter, shall be regularized in the cadre of Assistant Engineer, Grade-II, from the date of their initial appointment, either in the cadre of Graduate Junior Engineers or Assistant Engineer, Grade II. (h) The persons who do not pass viva-voce as provided in the clause (f), their services as Assistant Engineer, Grade-II shall be terminated: 13 Provided that, if such persons give an undertaking to the effect that, they are ready to get absorbed in the cadre of Junior Engineer, Group-B (Non Gazetted) ( which is below that of Assistant Engineer, Grade II) with the placement at the bottom of the seniority list of the particular year in which viva- voce test is held, then such persons shall be absorbed in that cadre. (i) The persons who were appointed during the period from 2 nd April, 1981 to 16 th June, 1997 and who have either retired on superannuation or voluntarily retired or left the above referred post for any other reasons, shall be deemed to be regularized in the cadre of Assistant Engineer, Grade-II. (j) The seniority of such persons except those who have passed combined competitive Examination mentioned in clause (c) and the persons mentioned in clause (d), shall be fixed in the cadre of Assistant Engineer, Grade II, as per the provisions of the first proviso to sub-rule (1) to Rule 4 of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 and the Seniority of such persons mentioned in clause (d) shall be fixed at the bottom of the directly recruited batch joined in the year 2001.” 6. The petitioners are the direct appointees through MPSC. The crux of the petitioners’ grievance is regarding their seniority and it 14 is contended that the Amended Rule 8 is unconstitutional as under the said Rule, ad-hoc appointees who were unsuccessful in the selection by the MPSC in the year 1997-98, would be ranked senior to them en- mass, as the regularization under it is sought to be made form the date of initial appointment on ad hoc basis. Mr. Anturkar, the learned counsel for the appellants, referred to the amended Rule 8(g) and submitted that the petitioners substantial challenge is to the validity of the said Rule and mainly to the underlined portion. For ready reference, Rule 8(g) is once again reproduced as under: (g) The services of persons mentioned in clauses (a), (b), (d), (e) and (f) of this rule, who pass the viva-voce test to be held by the Commission during the period 2009-2010 or immediately thereafter, shall be regularized in the cadre of Assistant Engineer, Grade-II, from the date of their initial appointment, either in the cadre of Graduate Junior Engineers or Assistant Engineer, Grade II. In short, the challenge by the petitioners is to the regularization of the temporary appointees and mainly under Rule 8(d) to (f) and that too from the date of their initial appointment, as even those who do not become eligible for regularization in terms of clauses (a) and (b) of Rule 8 are likely to stand senior to the petitioners, if such temporaries have 15 been appointed prior to the date of appointment of the petitioners, though they were never regularly selected, they failed in the competitive examinations conducted by the MPSC in 1997-98 and their regularization would be contrary to the law laid down in the case of Umadevi (supra). It was further urged that when the temporary appointees were given an opportunity as per the Recruitment Rules, 1997, they either did not appear for the examinations or were not successful in the same. In terms of the said old Rule 8, they were required to be terminated from service and the Government did not act as per the Rules of 1997 and retained them in service. Such illegally continued temporary appointees can not be treated senior to the petitioners and the Government is rewarding these unsuccessful candidates by regularizing them from the date of their initial appointment, urged the learned counsel. It was also submitted by the learned counsel that the Government has not exercised its powers under Article 309 of the Constitution bona fide and the impugned amendment has been undertaken during the pendency of the petition and solely to frustrate the challenge to the decision rendered by the tribunal. He also alleged that the GR dated 1/3/2000 challenged before the tribunal was acted upon in some selected cases despite the stay granted to the operation of the said GR. By referring to the information made available under the Right to Information Act, it was submitted that in one project alone, the 16 Superintending Engineer appointed as many as 26 graduate engineers on temporary basis for a period of four months during the period from March to July 1996 and all of them came to be continued all along without any selection test, and all these back-door entrants in the service are proposed to be senior to the petitioners. The amended Rule, therefore, is in breach of the guarantee under Article 14 of the Constitution in as much as it seeks to treat unequals as not only equals but more equals. It was urged that the legal position as settled by a catena of decisions of the Supreme Court does not permit the engineers to be regularized under Clauses (d) to (f) of the amended Rule 8 to be treated as seniors to the petitioners. 7. The Government of Maharashtra, through the Water Resources Department, has filed affidavit in reply and has opposed the amended petitions on preliminary points as well as on merits. It has been contended that the petitions are pre-mature, inasmuch as, the regularization as contemplated under clauses (d) to (f) of Rule 8 has not yet been effected and therefore, there is no cause of action as of now to draw a seniority list of such regularized Assistant Engineers. It was submitted that as and when such seniority list is published on the basis of the regularization in terms of clauses (d) to (f) of Rule 8, the petitioners, if aggrieved, will have to submit representations to the competent authority and thereafter approach the MAT. Reliance was also placed on the decision of the Seven Judge Bench in the case of 17 L.Chandrakant Vs. Union of India and others, 1997 (3) SCC, 361 in support of the contentions that the challenge to the validity of Rule 8(g) is required to be, at the first instance, taken up before the Tribunal and it cannot be entertained directly before this Court and the petitioners are required to be relegated to the remedy under the Administrative Tribunals Act even to challenge the Constitutional validity of the amended Rule 8. 8. The reply to the amended petition filed by the Joint Secretary in the Water Resources Department states that prior to 1981, the cadre of Junior Engineers was a single cadre comprising of both the degree as well as diploma holder Engineers. However, the seniority list of graduate Junior Engineers and diploma Junior Engineers was separately maintained from the year 1970 onwards and a separate quota for promotion to the post of Deputy Engineer for graduate Junior Engineers and diploma Junior Engineers was maintained. The post of Junior Engineer was in Class-III and is the basic and elementary post at the field level for both the departments i.e. Irrigation Department and Public Works Department. The appointments to these posts from the degree as well as diploma holders were earlier made by the Committee under the Chairmanship of the coordinating Superintendent Engineers from the year 1961 to 1976. During the year 1976, the State Selection Board became functional. By Government Resolution dated 28/4/1978 it was decided to obtain a bond from the graduate engineers and diploma 18 engineers at the time of their admission in the Government Engineering and Polytechnic Colleges to the effect that on their completion of graduation/diploma, they will serve in the Government services for at least 4 years for graduates and 2 years for diploma holders. During the years 1976 to 1983 diploma/degree holder Junior Engineers were recruited by the State Selection Boards and also from the candidates who had given Bonds to serve in Government services and such candidates were recruited by the Committee under the Chairmanship of coordinating Superintendent Engineer/Chief Engineer along with principals of Engineering/Polytechnic Colleges and the representative of Director, Technical Education as members of the said Committee. On 18/6/1983, the Selection Board came to be abolished. In order to have a betterment in the service conditions of the graduate/diploma engineers, the Government approved a proposal to upgrade their post to Class – II and accordingly such an announcement was made on the floor of the Legislative Assembly on 10/3/1981. The Government issued the GR dated 16/4/1984 so as to bifurcate the cadre of Junior Engineers in two separate cadres i.e. Sectional Engineers for diploma holders with diploma of three years duration, and seven years for the holders of diploma of two years duration and 10 years for the holders of diploma of less than two years duration. Whereas the degree holder Engineers were designated as Assistant Engineer, Grade – II by forming new cadre for such employees. Both these cadres were conferred with Junior Gazetted Class – II status, but the duties and responsibilities are 19 the same. Under the said Resolution dated 16/4/1984, it was also decided that the percentage of Assistant Engineer, Grade – II (graduate Junior Engineers) will be 25% of the total number of Junior Engineers with diploma qualifications. As the position of Assistant Engineer – Grade II was upgraded to the Gazetted status, it fell within the purview of the MSPC and, therefore, there was