Full Judgment Text
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No.4871/2009
Baswant Shankarappa Swami .. Appellant
Versus
State of Maharashtra & Ors. ..Respondents
J U D G E M E N T
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
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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
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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.
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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
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