Vinita W/O Vilas Karnewar And ... vs State Of Maha., Thr. Secretary, ...
2022 Latest Caselaw 12138 Bom

J-WP-2202-21,2157-22                                               1/25




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR.

                       WRIT PETITION NO.2202 OF 2021

1. Santosh Shriram Gawhankar
   Aged : 51 years Occ. Service,
   R/o B-1, 5, Patrakar Sahaniwas,
   Civil Lines, Nagpur

2. Shweta Salikanti Banerjee,
   Aged: 43 years, Occ. Service,
   R/o 87/88, Manish Nagar,
   Nagpur

3. Vaishali Sameer Awate,
   Aged: 43 years, Occ. Service,
   R/o D-1103, Rohan Nilay-1,
   Near Spicer School, Aundh,
   Pune - 7

4. Ajay Janardan Singh,
   Aged 51 years, Occ. Service,
   R/o Flat No.1, 1st Floor,
   Jawaharni Tower, Opp. Bansilal
   Nagar, above Devgiri Bank,
   Aurangabad                                          ... Petitioners

-vs-

1. State of Maharashtra,
   Through its Principal Secretary,
   Department of Water Supply &
   Sanitation, 7th Floor, Gokuldas
   Tejpal Hospital Complex,
   Lokmanya Tilak Marg, Mantralaya,
   Mumbai 400 001.

2. Maharashtra Jeevan Pradhikaran,
   4th Floor, Express Towers,
   Nariman Point, Mumbai 400 021
   Through its Member Secretary                        ... Respondents


                                     WITH
 J-WP-2202-21,2157-22                                   2/25


                       WRIT PETITION NO.2157 OF 2022
1. Vinita W/o Vilas Karnewar
   Aged about 53 years, Occupation Service
   R/o 307 Pitshish, H B Estate, Sonegaon,
   Nagpur

2. Vijay S/o Tulshiram Shende,
   Aged about 54 years, Occ. Service,
   R/o 123/5, New Amar Nagar, Nagpur

3. Gajanan S/o Kadubaji Danawe,
   Aged about 53 years, Occ. Service,
   MJP Quarter No.4, Maltekdi,
   Amravati

4. Vinod S/o Gunderaoji Kakde
   Aged about 54 years, Occ. Service,
   R/o Plot No.164, H B Estate,
   Sonegaon, Nagpur-440025.

5. Seema W/o Devanand Naik,
   Aged about 53 years, Occ. Service,
   R/o 39, Chintamani Nagar-1, Manewada,
   Besa Road, Nagpur

6. Ratna D/o Sushen Biswas
   (Ratna W/o Rohit Vishnoi),
   Aged about 46 years, Occ. Service,
   R/o Near Radhe Building, Ashirwad Nagar,
   Nagpur

7. Priya W/o Umesh Mali,
   Aged about 56 years, Occ. Service,
   R/o Rahul Society, J Building, Flat No.2,
   North main Road, Koregaon Park, Pune

8. Satish Balkrushna Bangale
   Aged about 55 years, Occ. Service,
   R/o Parshivar Housing Society, B-3/19,
   Anand Nagar, Sun City Road, Vadgaon
   (BK), Pune

9. Poornima d/o Dattatraya Date
  (Supriya w/o Shailendra Raste)
   Aged about 46 years, Occ. Service,
   R/o Flat No.7, Shalini Residency,
   Narayan Peth, Pune.
 J-WP-2202-21,2157-22                                                  3/25


10. Vaishali W/o Ishwarsingh Patil
    Aged about 28 years, Occ. Service,
    R/o Flat No.3, Sheetal Galaxy,
    Ashoka Marg, Nashik                                  ... Petitioners

-vs-

1. State of Maharashtra,
   Through its Secretary,
   Water Supply & Sanitation Department,
   Mantralaya, Mumbai -32.

2. Maharashtra Jeevan Pradhikaran,
   Thorough its Member-Secretary,
   Express Tower, 4th floor,
   Nariman Point, Fort, Mumbai

3. Maharashtra Environmental Engineering,
   Training and Research Institute, through
   its Director (Administration), In front of
   Office of the Revenue Commissioner,
   ISP Road, Nashik Road, Nashik 422101                  ... Respondents

                                   ..........
Shri S. M. Puranik, Advocate for petitioners in WP No.2202/2021
Shri Anand Parchure, Advocate for petitioners in WP No.2157/2022
Smt S. S. Jachak, Assistant Government Pleader for respondent No.1.
Shri D. M. Kakani, Advocate for respondent No.2.
Shri P. D. Meghe, Advocate for Intervenor.
Shri S. D. Chopde, Advocate for Intervenor.
                                   ..........

CORAM : A. S. CHANDURKAR AND M. W. CHANDWANI, JJ.

Arguments were heard on : October 18, 2022 Judgment is pronounced on : November 25, 2022

Common Judgment : (Per : A. S. Chandurkar, J.)

Since identical challenges are raised in these writ petitions,

they have been heard together by issuing Rule and making the same

returnable forthwith.

The communication dated 09/12/2021 issued by Department of

Water Supply and Sanitation, State of Maharashtra to the Member J-WP-2202-21,2157-22 4/25

Secretary, Maharashtra Jivan Pradhikaran (MJP) directing the MJP to

permit the petitioners to appear in the Departmental Professional

Examination (DPE) and grant them three opportunities to clear the

same within a period of one year so as to enable them to continue to

enjoy the benefits secured by them pursuant to their promotion is

under challenge.

2. In Writ Petition No.2202/2021 it is the case of the petitioners

that they are Graduate Engineers. They have been appointed as

Assistant Engineer (Grade-I) in the year 2002 after their selection by

the Maharashtra Public Service Commission (MPSC). Since then they

are discharging their duties with MJP. The promotional post of

Executive Engineer is required to be filled in through four feeder posts

which include Assistant Executive Engineer, Assistant Engineer (Grade-

I), Sub-Divisional Engineer (Graduate Engineer) and Sub-Divisional

Engineer (Diploma Holder). The same has been provided in

Government Resolution dated 19/12/1970. These petitioners became

eligible for promotion after acquiring seven years' experience. The

petitioners along with other eligible candidates appeared in the DPE

that was held in October 2003. In the result declared on 05/12/2003

all 26 candidates were declared to have failed. 13 of these candidates

including the petitioners were direct recruits having been selected and J-WP-2202-21,2157-22 5/25

recommended through MPSC. The MJP took note of the aforesaid

result and directed its Chief Administrative Officer to recheck/revalue

the marks obtained by each candidate. Pursuant thereto the concerned

Superintending Engineer was directed to receive applications along

with requisite fees from the concerned candidates who had appeared in

the DPE. The petitioners accordingly submitted their applications with

requisite fees. The Committee was set up by MJP along with subject

experts to examine the answer-sheets and upon revaluation it

increased the marks of the candidates including the petitioners. The

report of the subject experts was placed before the Committee set up

by MJP which accepted the same. The petitioners were accordingly

informed on 24/04/2004 that they had passed the DPE. Those

candidates who were not declared to be successful after revaluation

were required to appear and pass the said examination again.

3. The petitioners claim that they were promoted to the post of

Executive Engineer in the year 2010. In the 129th Board Meeting of

MJP held on 28/01/2013, the issue of increase in marks during re-

verification was discussed. As per Item No.9 therein the Board decided

that due to passage of considerable time, it would not be practicable to

re-consider the decision to constitute a Committee for re-verification of

the marks obtained in the DPE. Hence the benefit of increase in marks J-WP-2202-21,2157-22 6/25

as granted to 49 Engineers did not deserve to be withdrawn. By

majority the said resolution was passed. It however appears that on

16/05/2015 the Principal Secretary, Water Supply and Sanitation

Department issued a communication to the Member Secretary, MJP

that there was no provision for re-verification of the marks obtained by

a candidate in the DPE. This action on the part of MJP was not in

accordance with the prevailing Rules. It was further stated that though

the Board of Directors of MJP had no authority to condone such action

that was contrary to the Rules, the same had been done by passing a

resolution. The Member Secretary, MJP was therefore called upon to

justify the said action and was further directed that if such action was

not supported by any Rules, the same should be cancelled. In

response, the Member Secretary, MJP on 26/05/2017 informed the

Principal Secretary, Water Supply and Sanitation Department that the

decision taken to re-verify the marks received by the candidates in the

DPE appeared to be proper and the concerned candidates were not at

fault in that regard. At the request of the unsuccessful candidates the

answer papers had been re-verified by appointing a Committee. After

conduct of the said DPE a period of more than fifteen years had

elapsed. Some candidates had been further promoted and therefore

reverting them would result in administrative difficulties and possible

litigation. It was therefore recommended that no adverse action be J-WP-2202-21,2157-22 7/25

taken in the matter. The Water Supply and Sanitation Department was

not satisfied with the said response and hence sought further

explanation from the MJP in the said matter.

4. It is the case of the petitioners that they were eligible for being

considered for further promotion to the post of Superintending

Engineer. They however apprehended that they would not be

considered for being promoted in the light of exchange of aforesaid

communications. In the seniority list dated 16/03/2021 published by

the MJP, the petitioners were appropriately placed therein. Hence on

14/06/2021 the petitioners submitted a representation to the Member

Secretary, MJP with a copy thereof to the Additional Chief Secretary,

Water Supply and Sanitation Department urging that they be

considered for promotion to the post of Superintending Engineer. It is

in that backdrop that this writ petition was filed on 22/06/2021

seeking a direction that the petitioners be considered eligible for

promotion on the vacant posts of Superintending Engineer. During

pendency of the writ petition, the Water Supply and Sanitation

Department on 09/12/2021 through its Additional Secretary issued a

communication to the Member Secretary, MJP in which it was stated

that a Committee had been constituted by the MJP to re-verify the

answer papers of the candidates who had appeared in the DPE. Though J-WP-2202-21,2157-22 8/25

there was a limit to grant maximum two marks in one subject and an

aggregate of six marks, this limit was not followed by the concerned

Committee and marks had been increased beyond the maximum

permissible limit. Pursuant to deliberations held by the Principal

Secretary with the Member Secretary, MJP on 07/12/2021, a decision

was taken that it was not proper for the MJP to have re-verified the

answer papers in the absence of any such provision in the relevant

Rules. Such action could not be supported and the same was therefore

liable to the cancelled. However taking such action at this point of

time was likely to lead administrative confusion. It was therefore

decided to grant a further opportunity to the concerned candidates to

again appear in the DPE. This was despite the fact that the concerned

candidates had crossed the age of 45 years. Hence three attempts

were to be given to such candidates to clear the DPE in the next one

year. Those candidates who were not to accept this option and who

would not clear the DPE within a period of one year were liable to be

proceeded against by the MJP in accordance with the Rules. As

regards those Engineers who were in the zone of consideration for

promotion they could be considered for promotion subject to condition

that they would clear the DPE within a period of one year therefrom.

MJP was also directed to fix the responsibility for such irregularity and

take necessary disciplinary action. By amending the writ petition, this J-WP-2202-21,2157-22 9/25

communication dated 09/12/2021 has been put to challenge.

5. Writ Petition No.2157/2022 has been preferred by ten

petitioners who were appointed as Assistant Engineer (Grade-II),

Junior Engineer, Assistant Engineer (Grade-I) and Deputy Engineer.

The said petitioners appeared in the DPE conducted in the year 2003

and 2008 but were declared unsuccessful. On re-verification of their

answer papers pursuant to the application dated 22/04/2009, they

were declared to have cleared the DPE. The petitioners state that they

have received the benefit of increment pursuant to passing of said DPE.

The petitioners were promoted to the higher post in 2007-08. These

petitioners are also aggrieved by the communication dated

09/12/2021 issued by the Additional Secretary, Water Supply and

Sanitation Department of the State Government to the Member

Secretary, MJP and have thus filed the writ petition on 20/04/2022

challenging the said decision. In the aforesaid factual backdrop these

writ petitions have been heard together.

6. Shri S. M. Puranik, learned counsel for the petitioners in Writ

Petition No.2202/2021 and Shri Anand Parchure, learned counsel for

the petitioners in Writ Petition No.2157/2022 submitted that the

Water Supply and Sanitation Department of the State Government J-WP-2202-21,2157-22 10/25

through its Additional Secretary was not justified in issuing the

communication dated 09/12/2021 requiring the petitioners to again

appear in DPE and clear the same in three attempts within a period of

one year. It was submitted that re-verification of the marks and

increase in marks could not be attributed to any of the petitioners.

Such re-verification was undertaken by MJP by constituting a

Committee which included subject experts. The decision to re-verify

the marks was considered by the Board of MJP in its 129 th Board

Meeting and that action was ratified on 21/08/2013. Considerable

period of time had since elapsed and the petitioners have been

receiving benefits of having passed the DPE in the form of increment.

With passage of time they became eligible for further promotion to the

higher post. There was no justification in seeking to re-open the events

that had occurred in the year 2003 and 2008 of re-verification of

answer papers of the DPE. The MJP having been found that none of

the concerned Engineers were responsible for the decision to re-verify

the answer-sheets, there was no justification in directing the petitioners

to again appear in DPE. Even otherwise, these petitioners have crossed

the age of 45 years and were thus exempted from appearing in the

DPE. Despite noticing this aspect the impugned communication came

to be issued. It was not the case of the State Government or the MJP

that the services discharged by the petitioners pursuant to their J-WP-2202-21,2157-22 11/25

promotion were unsatisfactory and thus they were required to clear the

DPE. After a lapse of more than fourteen years the petitioners could

not now be directed to clear the DPE. It was therefore submitted that

the impugned communication dated 09/12/2021 was liable to be set

aside. Attention was invited to the order passed in Writ Petition

No.9612/2022 (Ramesh Mahadeo Mathkar vs. State of Maharashtra

Thr. The Secretary, Water Supply and Sanitation Department and ors.)

decided at the Principal Seat on 27/09/2022 wherein a Co-ordinate

Bench had granted relief to a similarly situated Engineer by directing

that he could not be required to clear the DPE. Though the said order

was not to be treated as a precedent for other cases, it was submitted

that the said order has persuasive value for being followed. It was

thus submitted that the petitioners be granted the relief as prayed for.

7. Ms S. S. Jachak, learned Assistant Government Pleader

appearing for the Water Supply and Sanitation Department opposed

aforesaid submissions. She invited attention to the affidavit in reply

filed on behalf of the State Government to urge that in the Service

Rules applicable to the MJP, there was no provision for revaluation of

the marks obtained in the DPE. The Chief Administrative Officer of

MJP had infact issued a communication dated 18/07/2012 stating

therein that the direction to re-verify and thereafter increase marks of J-WP-2202-21,2157-22 12/25

candidates was not in accordance with the Rules. The exercise

undertaken by the Maharashtra Environmental Engineering and

Training Research Academy (MEETRA) was therefore unjustified. The

Water Supply and Sanitation Department had rightly considered the

fact that re-verification and excessive increase in the marks was not

supported by the relevant Rules and therefore was justified in issuing

the impugned communication dated 09/12/2021. No interference

therefore was called for in the writ petition.

Shri D. M. Kakani, learned counsel for the MJP also opposed the

writ petitions. According to him it was the petitioners who had sought

re-verification of their answer-sheets despite the fact that there were

no such provision in the relevant Rules. Though the Board of Directors

had passed Resolution No.9 in the meeting of Board on 16/07/2013, in

view of the communication dated 16/05/2015 issued by the Water

Supply and Sanitation Department to the Member Secretary, MJP, the

same was disapproved. It was also submitted that after verifying the

record in the case of one Smt Manisha Mohan Parande in Writ Petition

No.11520/2019 at the Principal Seat, order dated 30/03/2022 had

been passed by the MJP in that regard. It was thus submitted that the

petitioners had been granted three opportunities to clear the DPE

within a period of one year and therefore no prejudice was being

caused to the petitioners. If the petitioners were to clear the DPE, they J-WP-2202-21,2157-22 13/25

were entitled to the benefit thereof. It was thus submitted that there

was not reason to interfere with the impugned communication and the

writ petitions were liable to be dismissed.

8. In Writ Petition No.2202/2021, Civil Application No.1349/2021

has been filed by an applicant Shri Sachin R. Hole seeking permission

to intervene in the writ petition. In the said application it has been

stated that the applicant desires to bring on record various factual

aspects concerning the present proceedings. As a vigilant person the

applicant seeks to bring to the notice of the Court illegality at the MJP.

Various documents have been filed alongwith application for

intervention.

In the reply filed to the said application the petitioner No.1 has

stated that the applicant is a busy body and he has a personal

grievance against the petitioner No.1. It is stated that the address of

the applicant is shown as the address of M/s Narmada Group of

Constructions that has obtained a forged registration certificate from

MJP. The application is stated to be motivated and therefore the same

is not liable to be allowed.

Civil Application No.228/2022 has been filed by one Shri Vijay

A. Purandare also seeking permission to intervene in the present

proceedings. The applicant states that he was initially appointed as J-WP-2202-21,2157-22 14/25

Assistant Engineer (Grade-II) at the MJP. He was promoted as Deputy

Engineer in 1999 and has thereafter retired from service on

30/04/2020. The applicant got knowledge of the fact that re-

verification of the answer papers was permitted in the year 2015. The

action of the MJP in seeking re-verification of the answer papers was

not permissible and hence the petitioners were promoted in an illegal

manner. The applicant therefore seeks permission to intervene in the

proceedings and oppose the prayers made in the writ petition.

In the reply filed to the said application the petitioner states that

they were directly appointed as Assistant Engineer (Grade-I) which is

the cadre different from that of the applicant. The adverse allegations

made in the application are denied.

9. In Writ Petition No.2157/2022, Civil Application

No.1189/2022 has been filed by three applicants who claim that they

are similarly situated as the petitioners and desire to support the cause

of the petition. They pray that they be permitted to join as co-

petitioners in the writ petition. In the reply filed to the said

application, the MJP has stated that the applicants may not be

permitted to join the present proceedings as co-petitioners for the

reason that similar writ petition has been filed at the Principal Seat as

well as at the Aurangbad Bench of this Court where the said applicants J-WP-2202-21,2157-22 15/25

could seek impleadment since they are serving within the territorial

jurisdiction of the Principal Seat and the Aurangabad Bench

respectively.

Considering the fact that the applicants are not rendering

services within the territorial jurisdiction of the Nagpur Bench, this

application is not entertained. The applicants are at liberty to raise

their grievances in accordance with law.

10. We have heard the learned counsel for the parties as well as the

intervenors at length and with their assistance we have perused the

documents placed on record. The principal ground of challenge raised

by the petitioners to the impugned communication dated 09/12/2021

is that the action proposed therein seeks to re-open the matter that had

settled long back. The same is not only belated but also unjustified.

We therefore propose to consider this limb of the challenge at the

outset. In that regard reference is required to be made to the material

events that have led to the passing of the impugned order. It is not in

dispute that the petitioners in Writ Petition No.2202/2021 joined the

services of MJP on 22/07/2002. As per the Service Rules, an Assistant

Engineer (Grade-I) on which post the petitioners had appointed was

required to pass the DPE after such appointment so as to be eligible to

be promoted to the post of Executive Engineer (Grade-I). The said J-WP-2202-21,2157-22 16/25

petitioners appeared in the DPE that was conducted in 2003. In all

thirty four Assistant Engineers (Grade-I) had appeared in that

examination and only five of them were declared to have been passed.

The petitioners were declared as failed in the result that was declared

on 05/12/2003. Some of the candidates who had failed in the said

examination sought re-verification of their marks. On 27/01/2004 the

Chief Administrative Officer, MJP issued an office order in which it was

stated that in the DPE that was conducted in October 2003 only 33%

candidates had passed. In view of Annexure-I Section 3 Part 8 of the

Maharashtra Public Works Department Manual, there was a provision

for re-verification of the answer papers. Accordingly a Committee was

constituted comprising of five members for re-verification of the

answer papers of those candidates who had failed and had sought re-

verification. Fees of Rs.50/- per paper was required to be paid. This

fact was informed to the Chief Engineer, MJP on 06/02/2004. The

petitioners accordingly deposited the requisite fees and their papers

were re-verified. On 28/04/2004 the results were declared and the

petitioners were stated to have passed the DPE.

The aforesaid facts indicate that initially the DPE was held in

October 2003 and on re-verification being undertaken by the MJP by

relying upon Annexure-I Part 3 Rule 8 of the Maharashtra Public Works

Department Manual the results were declared in April 2004.

J-WP-2202-21,2157-22 17/25

11. After this, for a considerable period of time, no objection of any

nature whatsoever was raised to the aforesaid re-verification of the

answer papers. It appears from the reply filed by the MJP that some

officials raised an objection in the year 2012 to the procedure adopted

of re-verification of the answer papers and thereafter declaring the

results. The matter was considered in the 129 th Board Meeting of MJP

on 16/07/2013. Subject No.9 dealt with the aforesaid objection. The

Board was however of the opinion that after passage of considerable

time, it would not be practicable to re-open the matter. Hence by

majority it was resolved not to cancel the increase in marks pursuant to

re-verification of the answer papers or to withdraw the benefits already

received by such Engineers. On 26/05/2017 the Member Secretary,

MJP conveyed this aspect to the Principal Secretary, Water Supply and

Sanitation Department by further bringing it to the notice of the said

Authority that the concerned Engineers were not at fault in the entire

process. Even on that date the MJP was of the view that a period of

about nine to fourteen years having elapsed since the holding of the

DPE it was not practicable to re-open the matter. In response, the

Deputy Secretary, Water Supply and Sanitation Department sought

information from the Member Secretary, MJP as regards the action

taken in the matter especially in the light of the fact that there was

no provision for re-verification of the answer papers. This J-WP-2202-21,2157-22 18/25

communication is dated 27/02/2018. Reminder was thereafter issued

by the said Authority to the Member Secretary, MJP on 15/06/2018.

From the aforesaid, it can thus be seen that the DPE was held in

the year 2003, 2004 and 2008. It is only in the year 2012 that certain

complaints were received by MJP to the exercise undertaken by it for

re-verification of the answer papers. The MJP in its 129 th Board

Meeting held on 16/07/2013 did not propose to take any action for the

reason that considerable period of time had elapsed and that the

concerned Engineers were not at fault. It is to be noted that the

Honourable Minister for Water Supply and Sanitation was present at

the Board Meeting in his capacity as Chairman, MJP. The State

Government however sought some action to be taken in the matter for

the reason that there was no provision for re-verification of the answer

papers.

12. It is in this backdrop that the impugned communication dated

09/12/2021 came to be issued by the Deputy Secretary, Water Supply

and Sanitation Department to the Member Secretary, MJP requiring

the concerned Engineers to again appear and clear the DPE within a

period of one year.

The question to be considered is whether the State Government

has acted within reasonable time in the light of the facts on record ?

J-WP-2202-21,2157-22 19/25

13. In matters where a challenge is raised to a seniority list or a

grievance is raised by an aggrieved employee to the grant of some

service benefits to another employee, the law is well settled that the

aggrieved party has to act with diligence and seek appropriate remedy

within a reasonable time. A stale claim cannot be permitted to be

raised nor does making of repeated representations result in creating a

fresh cause of action. Individual rights, if any, are required to the

agitated in the manner prescribed within a reasonable period of time.

In the present case however, it is the action of the State Government

in requiring the petitioners to appear in the DPE after passage of a

period of more than fourteen years that is under challenge. Such

direction has been issued by the State Government for the reason that

it has found that re-verification of the answer papers of the petitioners

in the DPE that was held in the years 2003, 2004 and 2008 was not

permissible. The issue therefore is whether the State Government as

employer can be permitted to issue such directions after a lapse of

considerable period of time that could result in disturbing the interse

seniority as well as service prospects of the petitioners ?

It is an admitted position that there is no allegation of any

material fact being suppressed by the petitioners nor is there any

allegation of fraud having been practised by them. It may be observed

that in such cases there would be no reason to preclude the employer J-WP-2202-21,2157-22 20/25

from taking appropriate action only on the ground that considerable

period has lapsed or that action is sought to be taken with regard to

events that had occurred prior to considerable period of time. In the

present case it is seen that there is a difference of opinion between the

MJP on one part and the Water Supply and Sanitation Department of

the State Government on the other as regards permissibility of the

exercise of re-verification. According to the MJP re-verification of the

answer papers was undertaken by relying upon Annexure-I Part 3

Rule 8 of the Maharashtra Public Works Department Manual. The

relevant Rule when broadly translated reads as under :

" The Superintending Engineer or the officer of the equal rank shall notify the date of examination and the Executive Engineer shall constitute Examination Committee comprising two experienced Engineers (One) or Sub-Engineers in the Maharashtra Engineering Services. The Superintending Engineer shall be the Chairman of that Committee and shall revise and in case of necessity shall reform the set of question papers. However, under Rule 10 below when the Joint Committee is constituted for two or more Boards then in that case, the Superintending Engineer or other officer case can make appointment of more than Two Assistant Engineers or Sub-Engineers, however, their total number shall be equal to the quotient coming after dividing the total number of examine Junior Engineers by 50. After division by 50, if the remainder comes to 25 or more, then it shall be presumed to be 50 and if it is less than 25, then it shall not be taken into account. The number of appointed Engineers shall not exceed J-WP-2202-21,2157-22 21/25

the number coming after doing such calculations. The Committee shall specially check again the answer sheets of any candidate failed by very few marks."

14. In the 129th Board meeting of MJP held on 16/07/2013 this

very issue of correctness of the decision taken by the Administrative

Officer of MJP of permitting re-verification of the answer papers was

deliberated. In the said meeting it was resolved by majority that the

concerned Engineers including the petitioners were not at fault and

that it would not be advisable to re-open the said matter due to

passage of time. The Water Supply and Sanitation Department

however was of the view that such exercise was not permissible under

Annexure-I Part 3 Rule 8 of the Maharashtra Public Works Department

Manual and re-verification of the answer papers ought not to have

been undertaken. It was more concerned with permitting such

irregularity to remain on record and has therefore directed MJP to

conduct the DPE requiring the concerned Engineers including the

petitioners to clear the same in three attempts in one year. The MJP

in all its communications with the State Government has taken a clear

stand that it was guided by the Maharashtra Public Works Department

Manual and that the Engineers who benefited by such re-verification

were not at fault. It can thus be seen that the impugned

communication dated 09/12/2021 is the outcome of such difference of J-WP-2202-21,2157-22 22/25

opinion between the two departments.

15. At this stage it would be necessary to refer to the observations

of the Constitution Bench of the Honourable Supreme Court in Malcom

Lawrence Cecil D'Souza v. Union of India and ors. AIR 1975 SC 1269. In

paragraph 9 thereof it has been observed as under :

" 9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Baking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."

16. Though the observations aforesaid have been made in the

context of challenge to the seniority of a co-employee, the aspect of

smoothness and efficiency of service has also been highlighted.

Possibility of administrative complications and difficulties have been

referred to. In K. R. Mudgal and ors. vs. R. P. Singh and ors. AIR 1986 J-WP-2202-21,2157-22 23/25

SC 2086 the Honourable Supreme Court observed that satisfactory

service conditions postulate that there should be no sense of

uncertainty amongst government servants on account of litigation

initiated after several years. As noted above, in the present case,

pursuant to re-verification of the answer papers in the year 2004 for a

period of almost eight years nothing happened thereafter. Some

objections were raised in the year 2012 to the procedure of re-

verification and the matter was considered by the MJP in its Board

meeting on 16/07/2013. Though it was resolved unanimously to give

a quietus to the said issue, the Water Supply and Sanitation

Department was of a different view. Thus, in effect, the action of re-

verification that took place in the year 2003-2004 and 2008-2009 is

sought to be re-opened on 09/12/2021.

In the totality of the circumstances and on considering the

entire material on record, we find that re-opening of the said matter

after lapse of nine to fourteen years would be unreasonable and is

likely to result in unnecessary hardship to the petitioners. In Ramesh

Mahadeo Mathkar (supra) a co-ordinate Bench of this Court has

considered a somewhat similar challenge to the order dated

09/12/2021 that is impugned in these writ petitions. After noting the

fact that the petitioner therein was to shortly retire on superannuation,

this Court set aside the order dated 30/03/2022 that required the said J-WP-2202-21,2157-22 24/25

petitioner to appear in the DPE. One of the factors that weighed with

the Court was the time factor of re-opening the proceedings in the

backdrop of the aspect that the petitioner could have availed the

opportunity of appearing in the DPE shortly after being informed in the

year 2004-2005 that re-verification of the answer papers was not

permissible. It is true that the Division Bench has observed that the

said judgment and order was not to be treated as precedent for other

cases. We however find that it would be a relevant aspect in the

present case. The petitioners could have also appeared in the DPE in

2005 and onwards if it would have been pointed out to them shortly

after the exercise of re-verification was undertaken that the same was

not permissible under the Maharashtra Public Works Department

Manual. After a lapse of nine to fourteen years when each petitioner

has crossed the age of 45 years and some of the petitioners have been

further promoted, requiring them to appear in the DPE and clear the

same in three attempts appears to be harsh. It is not the case of the

MJP that the services rendered by the petitioners are unsatisfactory in

any manner especially for the reason that their answer papers were re-

verified and on that basis they were treated to have been declared as

passed. At the cost of repetition it may be reiterated that MJP where

all the petitioners are engaged has no grievance whatsoever with the

services rendered by the petitioners and it still seeks to justify its J-WP-2202-21,2157-22 25/25

decision to permit re-verification of the answer papers.

17. Hence for aforesaid reasons we are of the considered opinion

that the petitioners cannot be required to appear in the DPE that has

been directed to be conducted in the light of the impugned

communication dated 09/12/2021. It is declared that the said

communication requiring the petitioners in both the writ petitions to

appear in the DPE would not be applicable to them. Their candidature

for further promotion can be considered by the Departmental

Promotion Committee in accordance with the applicable Rules. The

direction for fixing the responsibility of the aforesaid lapse and

initiation of disciplinary action thereafter by the MJP is not interfered

with.

Rule in both the Writ Petitions is made absolute in aforesaid

terms with no order as to costs.

All Civil Applications are also disposed of.

                                        (M. W. Chandwani, J.)               (A. S. Chandurkar, J.)




                            Asmita



Digitally Signed byASMITA
ADWAIT BHANDAKKAR
Personal Assistant
Signing Date:
25.11.2022 15:23