Sanjay Raghuveer Parihar And ... vs The State Of Maharashtra And ...
2022 Latest Caselaw 8097 Bom

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               IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                                     BENCH AT AURANGABAD

                          914 WRIT PETITION NO.7554 OF 2018


                    SANJAY RAGHUVEER PARIHAR AND OTHERS
                                   VERSUS
                    THE STATE OF MAHARASHTRA AND OTHERS
                                       ...
     Advocate for Petitioners : Mr.Deshmukh Yashodeep P. i/by Mr.Kawre
                                   Anand D.
         AGP for Respondent Nos. 1 to 4-State : Mrs.M.A.Deshpande
                                       ...


                                               CORAM : MANGESH S. PATIL &
                                                       SANDEEP V. MARNE, JJ.

DATE : 20.08.2022.

PER COURT : (PER - SANDEEP V. MARNE, J.)

1. By way of the present petition, petitioners challenge

judgment and order dated 06.05.2016 passed by the Maharashtra

Administrative Tribunal, Aurangabad (for short 'the Tribunal') in Original

Application No. 68 of 2012.

2. The case of petitioners before the Tribunal was that they held

qualification of S.S.C. and one year certificate course of Civil Engineering

Assistant (for short "C.E.A."). Their grievance is that there was a scheme

formulated vide Government Resolution dated 07.08.1982 issued by the

Public Works Department for the provisional appointment of candidates

who completed the course of C.E.A. on the post of 'Muster Karkun' in

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that department. It was petitioners' case before the Tribunal that even

though they possessed required qualification specified in the Government

Resolution dated 07.08.1982, the respondents failed to absorb them as a

Muster Karkrun/ Civil Engineering Assistant. They further submit that

action of the respondents was discriminatory in that the similarily

situated individuals were absorbed in service as Civil Engineering

Assistants.

3. The Tribunal has rejected the Original Application of the

petitioners holding that the Government Resolution dated 07.08.1982

was only an interim arrangement and that the same did not even apply to

the Water Resources Department. The Tribunal further held that the

cadre of Civil Engineering Assistant was created by the Government

Resolution dated 31.01.1989 and the Recruitment Rules under Article

309 of the Constitution of India were notified on 26.02.2002 by the Water

Resource Department. The Tribunal has held that after notification of the

recruitment rules, recruitment to the post of C.E.A. has to be made

under the statutory rules and not as per the Government Resolution

dated 07.08.1982 since the same was merely an interim measure.

4. Appearing before us on behalf of the petitioner, Mr.

Deshmukh submits that the scheme for absorption of candidates holding

qualification of S.S.C. and one year certificate course of CEA was in

vogue in the year 1987 when the petitioners sought their absorption in

the Government Service. He invited our attention to the letter dated

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11.10.1989 and submits that an assurance was given to one of the

candidates that the government would continue the scheme of absorption

of candidates possessing CEA certificates. He submits that the State

Government is bound by principle of promissory estoppel. He further

submits that even after notification of statutory recruitment rules, the

administrative instructions in the form of the Government Resolution

dated 07.08.1982 would continue to survive as Rules do not have effect

superseding Government Resolution dated 07.08.1982.

5. Mrs. Deshpande, learned AGP appearing for the State

Government supports the order of the Tribunal. She raises the issue of

delay in approaching the Tribunal.

6. After hearing the learned counsels for the respective parties,

we find that the Tribunal has not committed any jurisdictional error

while dismissing the Original Application filed by the petitioners, for

invoking our extraordinary jurisdiction under Article 226 or 227 of the

Constitution of India.

7. The petitioners have premised their claim for absorption on

the basis of Government Resolution dated 07.08.1982. They claimed

before the Tribunal that they ought to have been absorbed in the service

in the year 1987. However, they filed the Original Application before the

Tribunal only in the year 2012. The Tribunal could have dismissed the

Original Application on the ground of delay alone. Nonetheless, the

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Tribunal went on to decide the merits of the matter and has rightly come

to the conclusion that after the notification of recruitment Rules on

25.02.2002, those rules would continue to hold the field and the

appointments to the post of CEA cannot be made under the provisions of

Government Resolution dated 07.08.1982.

8. The submission of Mr. Deshmukh that the Government is

bound by the principle of promissory estoppel does not appeal to us.

There cannot be an estoppel against law. Mere formulation of scheme for

temporary absorption in 1982 would not estopp the Government from

framing the Recruitment Rules and to fill up the posts in accordance

thereof. Rather it is the duty of the Government to notify the Recruitment

Rules and to fill up the posts strictly in accordance thereof.

9. Assuming for the sake of argument that there was a scheme

for absorption of candidates holding qualification of certificate course of

CEA, once the recruitment rules are formulated and notified in the year

2002, the applicability of Government Resolution 08.07.1982 ends and

the Rules would have supremacy over the administrative instructions. We

are startled at the submission of Mr. Deshmukh that even after the

notification of recruitment Rules, administrative instructions would

continue to operate. We summarily reject the submission as the

administrative instructions must yield to the recruitment rules. Even

otherwise the insistence of the Petitioners that they should be absorbed

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in service by giving a go bye to selection process cannot be

countenanced.

10. We therefore do not find any merit in the petition and the

same is dismissed with no order as to costs.

( SANDEEP V. MARNE )                                ( MANGESH S. PATIL )
       JUDGE                                              JUDGE




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