Baswant Shankarappa Swami vs State Of Maharashtra & Ors

Baswant Shankarappa Swami .. Appellant

Versus

State of Maharashtra & Ors. ..Respondents

JUDGEMENT

R.M. LODHA, J.

Leave granted

2. This appeal by special leave is directed against the

judgment and order dated November 21, 2008 passed by the High

Court of Judicature at Bombay whereby the writ petition filed by

the present appellant was dismissed and the judgment dated November 26, 2007 passed by the Maharashtra Administrative

Tribunal (for short `the Tribunal') has been upheld.

3. The appellant is a Graduate Engineer (Civil). He was

selected and nominated by the Maharashtra Public Service

Commission (for short `the commission') as Assistant Executive

Engineer Class I in the Maharashtra Service of Engineers (Group A)

in the Irrigation Department on September 11, 1989. The appellant

was promoted as Executive Engineer, a Class I post, vide office

order dated September 7, 1993. On March 1, 1996 the Governor of

Maharashtra made the rules called the Superintending Engineer

(Civil) in the Maharashtra Service of Engineers Group A, in the

Irrigation Department (Recruitment Rules), 1996 (for short `the

Rules'). Rules 2 and 4 thereof came into force on the date of

publication of the notification in the official gazette while as regards

rule 3, it was provided that it shall come into force on such date

as may be notified by the State Government in consultation with the

Commission. On September 30, 1999, a notification came to be

issued declaring March 1, 2001 to be date for coming into force of

rule 3. According to the appellant, although he completed 7 years on

the post of Executive Engineer (Civil) in the month of September

2 2000 and his juniors in the cadre of Executive Engineer were

promoted to the post of Superintending Engineer in 2005 but he was

denied promotion having not gained experience in any one or more

of the branches from each of the groups provided in rule 3. The

appellant constrained thereby approached the Tribunal under

Section 19 of the Maharashtra Administrative Tribunals Act, 1985 for

redressal of his grievance. The appellant challenged the

constitutional validity of rule 3 before the Tribunal being arbitrary,

unreasonable and violative of Articles 14 and 16 of the Constitution

of India.

4. The Tribunal vide its judgment dated November 26, 2007

held rule 3 intra vires by considering the matter thus:

"...........Having noted the contention raised by the applicant in the Original Application, we do not find any merit or substance put forth by the applicant to the challenge to the vires of the Rule 3 of the Rules. We accordingly hold that Rule 3 being intra vires and do not contravene either Article 14 or 16 of the Constitution of India... ....."

5. Not satisfied with the judgment of the Tribunal, the

appellant filed a writ petition under Article 226 of the Constitution

before the High Court of Judicature at Bombay and put in issue

3 specifically the correctness of the Tribunal's view and set up the

ground that rule 3 was ultra vires the Constitution.

6. The High Court observed that neither before the Tribunal

nor before them, it had been substantiated as to how rule 3 was

ultra vires the Constitution and, accordingly, dismissed the writ

petition.

7. It is pertinent to notice that in the original application

before the Tribunal, while challenging the constitutional validity of

rule 3, the appellant set up the grounds thus:

".........that the `said rule' is ultra vires the constitutional mandate of equality before law and equal opportunity in Government Service as provided by Article 14 and Article 16 of the Constitution of India. The Rule 3 bestows unfettered powers upon the Respondents in the matter of promotions to the post of Superintending Engineer and is unreasonable, arbitrary and discriminatory. It is also incongruous and contradictory to the proviso to Rule 2 which provides for relaxation of 2 years of service in the feeder cadre out of 7 years service thereby making Rule 3 absurd, which mandates total of 6 years of service with 3 years service in each of Group (a) and (b). The Rule 3 is further discriminatory as the classification of Executive Engineers, a homogenous group, into two unequal and artificial classes totally at the mercy of the respondents who have absolute power to post or not to post an employee to a particular Group (a) or (b) post.

..........The Rule 3 provides that an Executive Engineer in the Irrigation Department shall have "gained an experience of not less than 3 years in any one or more of the branches from each of the following two groups, namely:

(a) (i) research, (ii) designs, (iii) project preparation (iv) investigation or (v) training work.

(b) (i) Construction or (ii) Management.

4 However it does not provide for a situation where an eligible Executive Engineer is not posted to either Group (a) or Group (b) or for reasons of non-availability of the posts. The said Rule therefore is arbitrary, unreasonable and bestows unfettered power in the Respondents in the matter of promotions by posting or not posting a particular Executive Engineer to either of the groups.

As a matter of fact, this rule is incongruous, contradictory and unreasonable on the back drop of proviso to Rule 2 which provides that where sufficient persons having held the posts of Executive Engineer (Civil) for a period of not less than 7 years as aforesaid are not available to fill up the vacancies, then the requirement of the such service of 7 years may be relaxed, so however that such relaxation shall not be by more than 2 years. It is evident that if an Executive Engineer is to be promoted according to this proviso, he puts a maximum service of 5 years and undisputedly cannot comply with the provisions of Rule 3 which lays down a total of 6 years experience, 3 years each in Group A and Group B posts."

8. The High Court has practically given no reasons as to

why contention raised by the writ petitioner (appellant herein) in

challenging the vires of rule 3 did not merit acceptance except saying

that it has not been substantiated as to how rule 3 was ultra vires the

Constitution. The consideration of the issue by the High Court

concerning vires of rule 3 is far from satisfactory. On a short

ground of non-recording of reasons and non-consideration of the

contentions raised by the appellant in challenging the constitutional

validity of rule 3, in our view, the appeal has to be allowed and

matter deserves to be sent back to the High Court for consideration

afresh.

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9. The appeal is, accordingly, allowed to the aforesaid

extent. Writ Petition No. 6812/2008 is restored on the file of the High

Court for its fresh consideration. No order as to costs.

..............................J. (B. Sudershan Reddy)

..............................J. (R.M. Lodha)

New Delhi,

October 9, 2009

6 ITEM NO.1A COURT NO.10 SECTION IIA

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO. 986 OF 2007

PANDURANG CHANDRAKANT MHATRE & ORS.

Petitioner(s)

VERSUS

STATE OF MAHARASHTRA Respondent(s)

Date: 08/10/2009 This matter was called on pronouncement of judgment today.

For Petitioner(s) Mr. R. Sundaravaradan, Sr. Adv.

Mr. S.M. Jadhav, Adv.

Mr. Abdul Tamboli, Adv.

Mr. Santosh Paul, Adv.

Mr. S.N. Bundla, Adv.

Mr. C.K. Sasi, Adv.

Mr. Sudhanshu, Adv.

Mr. Naresh Kumar, Adv.

For Respondent(s)

UPON hearing counsel the Court made the following O R D E R

Hon'ble Mr. Justice R.M. Lodha pronounced the judgment of this Bench comprising of Hon'ble Mr. Justice D.K. Jain and His Lordship.

The appeal is allowed in part.

(HEMALATHA MOHAN) (VIJAY DHAWAN) SR. PA. COURT MASTER

7 [ Signed reportable judgment is

placed on the file ]

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