Bombay High Court
State Of Maharashtra, Through Its ... vs Ravikant S/O Arjunrao Gedam And 10 ... on 28 July, 2017
Bench: V.A. Naik
WP 741/15 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 741/2015
1. State of Maharashtra,
Through its Secretary,
Public Works Department,
Mantralaya, Mumbai.
2. The Chief Engineer,
Regional Office, Public Works Department,
Civil Lines, Nagpur.
3. The Superintending Engineer,
Circle Office, Public Works Department,
Old Secretariat building,
Civil Lines, Nagpur. PETITIONERS
.....VERSUS.....
1. Ravikant s/o Arjunrao Gedam,
Aged 33 years, Occ. Service,
R/o 96 Janki Nagar, Katol,
Distt. Nagpur.
2. Rushikesh s/o Shriram Gonde,
Aged 33 years, Occ. Service,
R/o Narandra nagar, Bhanegaon,
Khaparkheda, Tq. Saoner,
Distt. Nagpur.
3. Mrs.Kanchan w/o Mahendra Gajbhiye,
Aged 30 years, Occ. Service,
R/o Quarter No.141, building No.9,
Type-II Government Quarter,
Ravi Nagar, Nagpur.
4. Mrs.Aruna w/o Baburao Tayade,
Aged about 39 years, Occ. Service,
R/o Flat No.16/4, Gokul Dham,
Zingabai Takli, Godhani road, Nagpur.
5. Ghanshyam s/o Keshavrao Nikhade,
Aged 41 years, Occ. Service,
R/o 52 Vasant Nagar, Old Babulkheda,
Post Parvati Nagar, Nagpur.
6. Sumit s/o Ramesh Awale,
Aged 28 years, Occ. Service,
R/o 129 Shri Hari Nagar, No.2,
Besa Road, Manewada, Nagpur 440 027.
7. Abhijit s/o Ramesh Patrikar,
Aged 33 years, Occ. Service,
R/o 119, Virchakra Colony,
Katol road, Nagpur 440 013.
::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:54:41 :::
WP 741/15 2 Judgment
8. Sachin s/o Tulshiram Bhagat,
Aged 36 years, Occ. Service,
R/o 303, Ashish Apartment, Vasudeo
Nagar, Hingna road, Nagpur 440 016.
9. Mahendra s/o Rambhauji Bhende,
Aged 34 years, Occ. Service,
R/o Near Ganesh Temple, Maskasath
Rly. Bridge, Pevtha, Telipura,
Itwari, Nagpur - 440 002.
10. Dhiraj s/o Purushottam Bansod,
Aged 33 years, Occ. Service,
Resident of 113, Vaishali Nagar,
Behind Nandurkar College,
Yavatmal 445 001.
11. Mrs.Pratima Namdeorao Rajgire,
Aged 32 years, Occ. Service,
R/o C/o B.Z. Deshmukh, 74,
Sita Nagar, Wardha road,
Nagpur 440 0025. RESPONDENTS
1. Trimbak Laxman Raut,
Aged 52 years, Occ.: Service,
R/o Ghulewadi, Near Union Bank,
Tah. Sangamner, Dist. Ahemadnagar.
2. Chandrashekhar Sudhakar Deshmukh,
Aged 45 years, Occ.: Service,
R/o Rajvandan Apartment,
Vrundavan Colony, General Vaidya Nagar,
Dwarka, Nashik-11.
3. Kailash Ananda Wadekar,
Aged 37 years, Occ.: Service,
R/o Uttam Niwas, Manmad Jin Kazi Plot,
Tah. And Dist. Dhule-424001.
4. Dattatray Anantrao Kulkarni,
Aged 49 years, Occ.: Service,
R/o Agashenagar, Post Tilaknagar,
Sangamner Road, Shrirampur,
Dist. Ahmednagar.
5. Raghunath Devram Nawale,
Aged 51 years, Occ.: Service,
R/o Shivaji Nagar, Dhumalwadi,
Tal. Akola, Dist. Ahmednagar.
6. Sunil Pandurang Targe,
Aged 53 years, Occ.: Service,
R/o PWD Sub Division,
Shrirampur, Dist. Ahmednagar.
7. Devanand Pralhad Patil,
Aged 52 years, Occ.: Service,
R/o P.W.Division, Sangamner,
Tq. Sangamner, Dist. Ahmednagar.
::: Uploaded on - 01/08/2017 ::: Downloaded on - 08/08/2017 01:54:41 :::
WP 741/15 3 Judgment
8. Rajendra Murlidhar Rokage,
Aged 48 years, Occ.: Service,
R/o Rahata, P.W. Sub Division,
Rahata, Dist. Ahmednagar.
9. Prabhakar Ramrao Darade,
Aged 47 years, Occ.: Service,
R/o 34, Shital Colony, Jadhav Nagar,
Kalyan Road, Ahmednagar-414001.
10. Kalpesh Punamchand Patil,
Aged 31 years, Occ.: Service,
R/o at Post Tah. Jawhar, Navapada,
Dist. Palghar-401603.
11. Vilas Nanabhau Thube,
Aged 57 years, Occ.: Service,
R/o at Post Kanhur Pather,
Tah. Parner, Dist. Ahmednagar.
12. Trushna V. Gadekar,
Aged 31 years, Occ.: Service,
R/o PWD Qtr.No.8, Tara Pan Center Road,
Infront of Konark Building, Osmanpura,
Aurangabad.
13. Prakash Gajanan Mhatre,
Aged 48 years, Occ.: Service,
R/o Parijat Building, K.J. Sommayya Trust,
Building No.R4/5 Room No.106,
Sarvodaya Boudha Vihar Road, Tilak
Nagar, West Mumbai-89.
14. G.M. Savle,
Aged 43 years, Occ.: Service,
R/o PWD Compound, Adalat Road,
Aurangabad. INTERVENOR
S
Shri A.S. Kilor, Special Counsel for the petitioners.
Shri J.C. Shukla, counsel for the respondent nos.1 to 5.
Shri G.G. Bade, counsel for the respondent nos.2, 8 and 9.
Shri S.M. Puranik, counsel for the Intervenors.
CORAM :SMT.VASANTI A NAIK AND
A.D. UPADHYE, JJ.
DATE : 28 TH JULY, 2017.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
By this writ petition, the State of Maharashtra challenges the
common order of the Maharashtra Administrative Tribunal, dated
WP 741/15 4 Judgment
11.04.2014 allowing the original applications filed by the respondents
and directing the petitioners to consider the respondents for promotion
under the provisions of Rule 3(a)(i) and (ii) of the Junior Engineer (Civil)
Group-B Non-Gazetted in the Public Works Department and the Irrigation
Department (Recruitment) Rules, 1998.
2. The feeder cadre for the promotion to the post of Junior
Engineer is the post of Civil Engineering Assistant. As per the Civil
Engineering Assistant Group-C in the Public Works Department
Recruitment Rules, 1998, a Civil Engineering Assistant Group-C could be
appointed by two modes, one being the mode of absorption and the other
being the mode of nomination. As per Rule 5 of the Rules, a candidate
who is appointed to the post of Civil Engineering Assistant Group-C is
required to pass the departmental examination unless he has already
passed the examination or is exempted from passing the said
examination. All the respondents were appointed as Civil Engineering
Assistants under the Civil Engineering Assistants Group-C Recruitment
Rules, 1998. A seniority list of Civil Engineering Assistants was prepared
on 30.08.2012 and the names of the Civil Engineering Assistants that
were eligible for promotion to the post of Junior Engineer were placed in
the seniority list. The appointment or promotion to the post of Junior
Engineer could be made under the Junior Engineer Civil Group-B Non
WP 741/15 5 Judgment
Gazetted in the Public Works Department and the Irrigation Department
Recruitment Rules, 1998. In this petition, we are concerned with Rule 3
of the said rules. Under the said rules, the appointment to the post of
Junior Engineer could be made by nomination and promotion. 25% of
the posts of Junior Engineer are required to be filled by the selection
process conducted by the Maharashtra Public Service Commission. 75%
of the posts are required to be filled through the Staff Selection Board.
75% of the 75% posts of junior Engineer that are required to be filled
by the Staff Selection Board are to be filled by nomination and 25% posts
that are required to be filled by the Staff Selection Board are to be filled
by promotion. Out of the 25% posts that are required to be filled by the
Staff Selection Board, 20% are required to be filled by adhering to Rule
3(a)(i) of the rules pertaining to the recruitment of Junior Engineers. In
terms of Rule 3(a)(i), the Civil Engineering Assistants who have passed
the qualifying examination for the post of Junior Engineer conducted by
the Engineering Staff College and who have the experience of not less
than three years of regular service as a Civil Engineering Assistant, are
required to be considered for promotion. 5% of the 25% posts that are
liable to be filled by promotion are required to be filled, in accordance
with the provisions of Rule 3(a)(ii) of the Rules. The said rule provides
that the Civil Engineering Assistants, who possess a part-time or distance
learning diploma would be entitled to be promoted on the basis of their
WP 741/15 6 Judgment
seniority. Admittedly, none of the respondents had passed the qualifying
examination for the post of Junior Engineer conducted by the Engineering
Staff College and none of them possessed a part-time or distance learning
diploma when they filed the original application before the Maharashtra
Administrative Tribunal. It was the case of the respondents before the
Maharashtra Administrative Tribunal that since they possess a regular
three years diploma in Civil Engineering, they were not required to pass
the qualifying examination for the post of Junior Engineer conducted by
the Engineering Staff College and they were also not required to possess a
part-time or distance learning diploma as they possessed a three years
diploma in Civil Engineering. The Tribunal found favour with the
submission made on behalf of the respondents and allowed the original
applications filed by them. The common order of the Maharashtra
Administrative Tribunal is challenged by the State of Maharashtra and
others, in the instant petition.
3. Shri Kilor, the learned Special Counsel for the petitioners,
took this Court through the relevant recruitment rules of the year 1998
pertaining to the promotion of Junior Engineers to submit that a Civil
Engineering Assistant desirous of seeking promotion to the post of Junior
Engineer is required to either pass the qualifying examination for the post
of Junior Engineer conducted by the Engineering Staff College as per
WP 741/15 7 Judgment
Rules 3(a)(i), or he is required to possess a part-time or distance learning
diploma as per Rule 3(a)(ii) of the Rules of 1998. It is submitted that the
respondents had neither passed the qualifying examination for the post of
Junior Engineer, conducted by the Engineering Staff College nor did they
possess a part-time or distance learning diploma. It is submitted that the
respondents have not challenged Rule 3 of the Rules of 1998 and in the
absence of any challenge to the rules, the respondents cannot be heard to
say that they would be entitled to promotion though they have not passed
the qualifying examination for the post of Junior Engineer and they did
not possess the part-time or distance learning diploma, as they possessed
a three years diploma in Civil Engineering. It is submitted that merely
because Rule 2 of the Rules of 1998 provides that part-time or distance
learning diploma in Civil Engineering, recognized by the Government
should be equivalent to three years diploma in Civil Engineering, the
respondents cannot claim that they would be entitled to promotion in
view of Rule 3(a)(ii) though they do not possess a part-time or distance
learning diploma. It is submitted that the Tribunal did not consider
Rule 3 of the Rules in the right perspective before holding that the
respondents were entitled to promotion to the post of Junior Engineer.
4. Shri Shukla, the learned counsel for the respondent nos.1 to 5
and Shri Bade, the learned counsel for the respondent nos.2, 8 and 9,
supported the order of the Maharashtra Administrative Tribunal. It is
WP 741/15 8 Judgment
submitted that the respondents possessed a three years diploma in Civil
Engineering. It is stated that part-time or distance learning diploma
recognized by the Government is held to be equivalent to the three years
diploma in Civil Engineering and since the respondents possess the three
years diploma in Civil Engineering, they were not required to possess the
part-time or distance learning diploma for seeking their promotion by
resorting to Rule 3(a)(ii) of the Rules of 1998. It is submitted that for
appointment of a Junior Engineer by nomination, a three years diploma
in Civil Engineering would be the requisite qualification and since the
respondents possess the three years diploma in Civil Engineering, they
would not be required to pass the qualifying examination for the post of
Junior Engineer, conducted by the Engineering Staff College. The learned
counsel sought for the dismissal of the writ petition.
5. Shri Puranik, the learned counsel for the intervenors,
submitted that the intervenors are unnecessarily made to suffer by the
order of the Maharashtra Administrative Tribunal as the intervenors have
an experience of more than three years of service as Civil Engineering
Assistants and they have also passed the qualifying examination for the
post of Junior Engineer, conducted by the Engineering Staff College. It is
submitted that without joining the Civil Engineering Assistants like the
intervenors, who could have been affected by the order of the Tribunal,
WP 741/15 9 Judgment
the original application was filed by the respondents. The learned
counsel adopted the arguments made on behalf of the petitioners.
6. To consider the correctness or otherwise of the order of the
Tribunal, it would be necessary to consider the provisions of Rules 2 and
3 of the Junior Engineer (Civil) Group-B non-gazetted in the Public Works
Department and the Irrigation Department (Recruitment) Rules, 1998.
Rules 2 and 3 of the Rules of 1998, read thus:-
"2. Definitions.-In these rules, unless the
context otherwise requires,
a] "Government" means the Government
of Maharashtra,
b] "Part-time or Distance Learning
Diploma" means a part-time or Distance Learning Diploma in
Civil Engineering, recognized by Government, which is
equivalent to three years Diploma in Civil Engineering.
3. In rule 3 of the principal rules, for clause (a), the
following clause shall be substituted, namely:-
[a] by promotion of a suitable person on
the basis of seniority subject to fitness from amongst the
persons.
i] holding the post of Civil Engineering
Assistant who have passed the qualifying examination for the
post of Junior Engineer conducted by the Engineering Staff
College, having not less than three years regular service in that
post; or
WP 741/15 10 Judgment
ii] holding the post of Civil Engineering
Assistant who possess a part-time or Distance Learning
Diploma; or"
It is apparent from Rule 3 of the Rules that promotion to the post of
Junior Engineer is made from two categories of Civil Engineering
Assistants. The first category of Civil Engineering Assistants that are
entitled to promotion would be the Civil Engineering Assistants who have
not rendered less than three years of regular service on the said post and
who have passed the qualifying examination for the post of Junior
Engineer, conducted by the Engineering Staff College. The second
category of Civil Engineering Assistants that are entitled to be promoted
to the post of Junior Engineer are required to possess a part-time or
distance learning diploma. It is apparent from a reading of Rule 3 of the
Rules that either those Civil Engineering Assistants, who have passed the
qualifying examination and who have not rendered less than three years
regular service on the said post and the Civil Engineering Assistants who
possess a part-time or distance learning diploma would only be entitled to
be promoted to the post of Junior Engineer. It is not disputed that none
of the respondents had passed the qualifying examination for the post of
Junior Engineer, conducted by the Engineering Staff College and none of
them possess a part-time or distance learning diploma. According to the
respondents, they were entitled to promotion irrespective of the
WP 741/15 11 Judgment
provisions of Rule 3 because they possessed a three years diploma in Civil
Engineering which is a requisite qualification for nomination to the post
of Junior Engineer. According to the respondents, they were not entitled
to possess a part-time or distance learning diploma as they possessed a
three years diploma in Civil Engineering. The respondents had not
challenged Rule 3 of the Rules of 1998. In the absence of any challenge
to the Rules, the respondents cannot claim that they would be entitled to
promotion as they possess the three years diploma in Civil Engineering
which is a qualification for appointment to the post of Junior Engineer by
nomination. On a reading of Rule 3, it is clear that if the respondents had
not possessed a part-time or distance learning diploma which is
equivalent to a three years diploma in Civil Engineering or had not passed
the qualifying examination for the post of Junior Engineer, they were not
entitled to be promoted to the post of Junior Engineer. The Tribunal
relied on the definition of 'part-time or distance learning diploma' to
erroneously hold that a Civil Engineering Assistant possessing a three
years diploma would be entitled to be promoted under Rule 3(a)(ii) of
the Rules. The definition clause, i.e. Rule 2(b) only specifies as to what
type of part-time or distance learning diploma is required to be possessed
by a Civil Engineering Assistant for seeking promotion under Rule 3(a)(ii)
of the Rules. Any part-time or distance learning diploma which is not
equivalent to a three years diploma in Civil Engineering would not help a
WP 741/15 12 Judgment
Civil Engineering Assistant in seeking his promotion to the post of Junior
Engineer under Rule 3(a)(ii) in view of Rule 2(b). It appears that by the
insertion of Rule 3(a)(ii), the Government decided to give the benefit of
promotion to those Civil Engineering Assistants who possessed a part-time
or distance learning diploma which is equivalent to a three years diploma
in Civil Engineering. A part-time or distance learning diploma which is
not equivalent to, or was lesser than a three years diploma in Civil
Engineering could not have been considered for promotion of the Civil
Engineering Assistants to the post of Junior Engineer under Rule 3(a)(ii)
of the Rules. It is apparent from a reading of the Rules of 1998 that only
those Civil Engineering Assistants, who had passed the qualifying
examination for the post of Junior Engineer, conducted by the
Engineering Staff College and who had put in not less than three years of
regular service on the post of Civil Engineering Assistant and the Civil
Engineering Assistants who possessed a part-time or distance learning
diploma which is equivalent to a three years diploma in Civil Engineering
were entitled to be promoted to the post of Junior Engineer under the
Rules. What was required by Sub-Rule (a)(ii) of Rule 3 was not a three
years diploma in Civil Engineering but a part-time or distance learning
diploma. Even a part-time or distance learning diploma which was not in
consonance with Clause 2(b) of the Rules could not have made a Civil
Engineering Assistant eligible for promotion to the post of Junior
WP 741/15 13 Judgment
Engineer. The Tribunal did not consider the Rules in the right perspective
while holding that the respondents were entitled to be promoted to the
post of Junior Engineer as they possessed the three years diploma in Civil
Engineering. The respondents would have been entitled to take a chance
to be nominated to the post of Junior Engineers on the basis of the three
years diploma in Civil Engineering along with the other qualifications that
are required to be possessed for appointment to the post of Junior
Engineer by nomination. However, they could not have sought their
promotion to the post of Junior Engineer under Rule 3 of the Rules as
they did not fall in either of the two categories of Civil Engineering
Assistants that are entitled to be promoted to the post of Junior Engineer.
Merely because the respondents had passed the departmental
examination that is required to be passed by a Civil Engineering Assistant
as per Rule 5 of the Civil Engineering Assistants Group C in the Public
Works Department Recruitment Rules, 1998, it cannot be said that they
had passed the qualifying examination for the post of Junior Engineer.
The departmental examination that is required to be passed under Rule 5
of the Civil Engineering Assistants Group C in Public Works Department
Recruitment Rules is distinct from the qualifying examination that is
required to be passed under Rule 3(a)(i) of the Junior Engineer
Recruitment Rules, 1998. The order of the Tribunal is clearly illegal and
is liable to be set aside.
WP 741/15 14 Judgment
Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned order of the Tribunal is hereby set aside. The original
applications filed by the respondents stand dismissed.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
