Shri Dattatraya G. Wankar, Sub-divisional Engineer, Road Project Sub Division No. I and ors. Vs. State of Maharashtra Through the Secretary Public Works Department and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/363468
SubjectService;Constitution
CourtMumbai High Court
Decided OnOct-11-2007
Case NumberWrit Petition No. 2776 of 2000
JudgeF.I. Rebello and ;S.J. Vazifdar, JJ.
Reported in2008(1)ALLMR4; 2007(6)BomCR813
ActsState Reorganisation Act, 1978 - Sections 81; Constitution of India - Articles 14, 16, 16(1), 26(4) and 309; Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and preparation and revision of seniority lists) Rules, 1983 - Rules 4, 4(2), 12, 13, 24, 25 and 33; Recognised Bombay State Association Engineers and Executive Engineers Seniority List Rules 1981 - Rule 3(3) and 3(4); ;Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982 - Rules 4 and 9; Rules, 1960 - Rule 8(3)
AppellantShri Dattatraya G. Wankar, Sub-divisional Engineer, Road Project Sub Division No. I and ors.
RespondentState of Maharashtra Through the Secretary Public Works Department and ors.
Appellant AdvocateS.G. Aney, Sr. Adv. and ;Anurag Jain, Adv.
Respondent AdvocateV.A. Gangal, Special Counsel, ;S.R. Nargolkar, AGP for Respondent No. 1, ;A.Y. Sakhare, Sr. Adv. and ;K.S. Bapat and ;A.A. Joshi, Advs. for Respondent Nos. 5, 14, 35, 47, 28, 19, 67, 55, 25, 26, 13, 5
Excerpt:
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- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and.....
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f.i. rebello, j.1. sixty-two, civil engineer graduates, working as sub divisional engineers, in the public works department of the state of maharashtra, filed an original application before the maharashtra administrative tribunal, being o.a. no. 473 of 1998. by the said o.a. they originally sought a declaration that rule 4(2) of the maharashtra service of engineers class i and the maharashtra service of engineers class ii (regulation of seniority and preparation and revision of seniority lists) rules, 1983 is unconstitutional. the reliefs sought were:(a) that this honourable tribunal be pleased to declare rule 4(2) of the maharashtra service of engineers class i and the maharashtra service of engineers class ii (regulation of seniority and preparation and revision of seniority lists).....
Judgment:

F.I. Rebello, J.

1. Sixty-two, Civil Engineer graduates, working as Sub Divisional Engineers, in the Public Works Department of the State of Maharashtra, filed an Original Application before the Maharashtra Administrative Tribunal, being O.A. No. 473 of 1998. By the said O.A. they originally sought a declaration that Rule 4(2) of the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and preparation and revision of seniority lists) Rules, 1983 is unconstitutional. The reliefs sought were:

(a) That this Honourable Tribunal be pleased to declare Rule 4(2) of the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and preparation and revision of seniority lists) Rules, 1983 as unconstitutional and allow this petition with all consequential benefits.

The Consequential Prayer Clause reads as under:

(b) That this Hon'ble Tribunal be pleased to give necessary directions for preparation of common seniority list of Assistant Engineer Grade I and Sub-Divisional Engineers on the principle of the date of appointment for Direct recruits and the date of continuous officiation for the promotees within such time as this Hon'ble Tribunal may deem fit.

By an amendment which was allowed on 16th April, 1999 the Petitioners also prayed as under:

That this Honourable Tribunal be pleased to declare Rule 5 of 1970 Rules making classification between Assistant Engineer Grade II and Sub Divisional Engineers as unconstitutional and violative of Articles 14 and 16 of the Constitution of India.

In the Original Application the petitioners had taken out Miscellaneous Application No. 269 of 1998 in O.A. No. 473 of 1998 praying that the Petitioners be permitted to pursue the Application jointly. It appears that this Application was allowed. However, none of the Assistant Engineers Grade II who were likely to be affected, if the Rule was declared unconstitutional were added as parties.

Seven other Sub Divisional Engineers had also filed Original Application No. 178 of 1999 wherein the Seniority Rules of 1983 as also Rule 5 of the 1970 Rules were impugned as unconstitutional.

2. The Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and preparation and revision of seniority lists) Rules, 1983 hereinafter referred to as the 1983 Rules, were notified to give effect to the judgment of the Supreme Court in S.P. Patwardhan v. State of Maharashtra : [1977]3SCR775 and the subsequent Judgment of this Court in S.C. Bagayat Patil and Ors. v. State of Maharashtra and Ors. in Writ Petition No. 3485 of 1980 and the judgment in P.Y. Joshi and Anr. v. State of Maharashtra and Ors. in Writ Petition No. 672 of 1981 wherein this Court had issued certain direction to the State of Maharashtra to frame new Rules to replace Rule 33 and other Rules.

Apart from these Rules there are also other Rules in force for Recruitment and laying down the Conditions of Service of Class I and Class II Officers of the Maharashtra Service of Engineers.

3. The learned Tribunal by a common order dated 14th May, 1999 disposed off both O.As. The learned Tribunal in both the Applications noted that the very issue raised before the Tribunal was in issue before this Court in Direct Recruits, Class-II Engineering Association v. State of Maharashtra Writ Petition No. 620 of 1984 and 14 others decided on 9th December, 1985. The Tribunal noted that the contention had earlier been raised before this Court that there ought not to be any distinction between the Assistant Engineers Class II and Sub Divisional Engineers, since both are Graduate Engineers. This Court had observed that the Government had decided to divide Class II posts into cadres of Deputy Engineers, Assistant Engineers Class-II, Sub-Divisional Engineers and Sub-Divisional Officers. The scale of pay of Assistant Engineers Class-II and Sub-Divisional Engineers as also their duties and responsibilities were slightly different. The cadre of Sub-Divisional Engineers did not have any direct recruits as they were promotees from a feeder cadre. This Court had held that these are two distinct cadres and it is not open to say that they ought to have been merged. The various other submissions as urged were considered and dealt with. The petition was dismissed. The matter went in Appeal to the Supreme Court. The Constitution Bench of the Supreme Court which heard the matter dismissed the Special Leave Petitions whilst observing that they did not find any merit in any of the Civil Appeals. The judgment is reported in Direct Recruits Class II Engineering Association v. State of Maharashtra AIR 1990 S.C. 160. The Tribunal held that one of the reasons mentioned by this Court in the Direct Recruits case for dismissing the petition was that the cadre of Sub Divisional Engineers does not have any direct recruits at all and that conclusion holds good although the other two reasons relating to scale of pay and duties and responsibilities may not hold any more and consequently a valid distinction does exist between the two cadres. The Tribunal noted that while it can be said that there is a case for the State Government to consider the merger of the two cadres, if for any reason the State Government chooses to keep the two cadres distinct, it cannot on that ground be considered unconstitutional. Accordingly both the Original Applications were dismissed.

4. The original applicants before the Tribunal filed a common petition before this Court which is the present petition. On behalf of the original Applicants their Counsel contended that though this Court had recorded a finding that the Assistant Engineers Class-II and Sub Divisional Engineers were distinct cadres the situation has changed subsequently. The pay scales which were different when this Court considered the matter, are now the same and as such the 1983 Rules needs to be declared unconstitutional effective from 1st January, 1986. A learned Bench of this Court by judgment dated 30th November, 2004 held that there is absolutely no difference between the basic qualifications, basic salary and functions and powers of both the cadres and as such they ought to be treated as one for the purpose of promotion. In the petition the petitioners had impleaded some Assistant Engineer -II who were subsequently promoted as Executive Engineers from the Cadre of Assistant Engineers Grade II. Those respondents had filed Civil Application being Civil Application No. 1776 of 2003, seeking a relief that their names should be deleted from the petition. Accordingly, their names were deleted from this petition. This Court held that the Tribunal erred in holding that both the cadres are distinct, relying on the earlier judgment of the Division Bench of this Court. Accordingly the petition was allowed by order dated 30th November, 2004 and this Court was pleased to hold that both the Cadres ought to be treated as a single cadre for the purpose of promotion to the post of Executive Engineers and consequently reversed the judgment of the Administrative Tribunal. The Review preferred was also dismissed.

5. The State of Maharashtra challenged the order before the Supreme Court which was numbered as Civil Appeal No. 4710 of 2006. Another Appeal being Appeal No. 4711 of 2006 was filed by the persons (Assistant Engineer -II) who were not made parties before this Court. The Supreme Court noted that by the impugned judgment, the officers in the cadre of Assistant Engineer-II had been seriously affected as their promotional chances are reduced. Moreover the Rules relating to 25% quota, which are in existence for the last 35 years, were done away with, without the parties being heard by the High Court nor were the Rules set aside. The Supreme Court for the aforesaid reasons was of the view that the matter should be remanded to the High Court to be considered afresh and the Appellants in Civil Appeal No. 4711 of 2006 are also to be heard by the High Court. There was also a direction that the Appellants before it in the said Appeal be impleaded as parties before the High Court.

6. By challenging Rule 5 of the 1970 Rules and Rule 4 of the seniority Rules of 1983, what really the Applicants are praying is, that the Rule which provides for several distinct cadres including four cadres in Class II service to the extent of providing for two distinct cadres of Assistant Engineers Grade II and Sub Divisional Engineers be declared unconstitutional. The other relief is that consequently a common seniority list of Assistant Engineer Grade II and Sub Divisional Engineers be prepared by declaring Rule 4(2) unconstitutional for the purpose of promotion to the post of Executive Engineer, irrespective of the other Rules like Rules 24 and 25 which provide for specific quotas for the cadre of Assistant Engineer Grade II and cadre of Sub Divisional Engineer and separate seniority lists as provided by Rule 13, for promotion to the post of Executive Engineers.

7. Before the issues are answered, we may refer to the various Rules and the judgments already pronounced on those Rules by this Court and the Supreme Court. Firstly, there were the 1960 Rules, which were known as Rules for Recruitment to Bombay Service of Engineers Class I and Class II (Civil). These Rules were made in exercise of the executive power of the State. Under these Rules, recruitment to the post of Executive Engineer was both by nomination as also promotion in the ratio of 75:25.

These Rules were repealed by the 1970 Rules which were notified by the Government Notification dated 19th December, 1970. The Government resolution noted that the review of 1960 Government Resolution had been under consideration with a view to remove the difficulties experienced to fix equitable proportions for direct recruits and promotees to provide incentives to direct recruits as well as to both the graduate and non-graduate members of the subordinate engineering service and thereby to ensure the efficiency of the Engineering service as a whole. The Government, therefore, was pleased to make the Rules of 1970, which are described as 'Appointment to the Maharashtra Service of Engineers Class I and Class II - Procedure and Rules regarding -. The Rules came into effect from 21st December, 1970. These will be known as the 1970 Rules. By these Rules the Government Resolution dated 29th April, 1960 and all other orders issued earlier, stood superseded or modified to the extent they are repugnant to the 1970 Rules.

Under Rule 5, the Maharashtra Service of Engineers was to consist of Class I and Class II and will comprise the following cadres:

Class - I: Pay Scale:(1) Chief Engineer Rs. 1300-100-2000(2) Superintending Engineers Rs. 1360-60-1000(3) Executive Engineers. Rs. 650-(6th Year)-45-1100-50-1200(4) Assistant Engineers. Rs. 410-30-650-EB-45-1010Class I. (fixed pay of Rs. 380/- during the period ofprobation).Class-II:(1) Deputy Engineers Rs. 325-30-675-EB-30-975(2) Assistant Engineers Rs. 325-30-625-EB-30-925Class-II fixed pay of Rs. 325/- during the period of probation).(3) Sub-Divisional Engineer Rs. 325-25-550-30-610-EB-30-910.(4) Sub Divisional Officers Rs. 325-25-550-30-610-EB-30-880/-.

8. Part - III of the 1970 Rules, deals with Direct Recruitment to Class I and Class II Posts, Probation and Training. Part V deals with Appointments by Promotion to Class II. Rules 24, 25 and 26 of the 1970 Rules which are the relevant Rules, and which need to be considered, provide for promotion, quota and confirmation to the Post of Executive Engineers and read as under:

Rule 24. All the posts of Executive Engineers (Permanent and Temporary) shall be filled by promotion of (i) direct recruits to class I i.e. Assistant Engineers Class I and (II) Officers from the four cadres in Class II viz. Deputy Engineers, Assistant Engineers, Class II, Sub Divisional Engineers and Sub Divisional Officers in the ratio of 40% for direct recruits to class I and 60% for promotees from Class-II.

Rule 25 reads as under:

25. After all the Deputy Engineers (excepting those who are finally considered unfit for promotion) have been promoted, the 60% posts of Executive Engineers available for promotion from Class II shall be filled by promotion in the following proportions:

(i) 25% by promotion from among the direct recruit to Class II.

(ii) 25% by promotion from among the graduate promotees in Class II; and

(iii) 10% by promotion from among the non-graduate promotees in Class II.

Rule 26 reads as follows:The proportions fixed in Rules 24 and 25 will be in force for three years and will be reviewed thereafter.

By Rule 8, appointment by nomination to the Maharashtra Service of Engineers Class -I i.e. Assistant Engineers Class I and the Maharashtra Service of Engineers, Class II i.e. Assistant Engineers Class II, were to be made on the basis of a competitive examination to be held by the Maharashtra Public Service Commission.

9. As noted earlier, Class I posts consist of four cadres including Executive Engineers. Class II posts consisted of four cadres including Deputy Engineer. On coming into force of the 1970 Rules, by virtue of Rule 25, after all the Deputy Engineers (except those finally considered unfit for promotion) had been promoted, 60% of the posts of Executive Engineer were to be filled in by promotion in terms of the quotas provided in Rule 25. The permanent posts and the temporary posts in Class II remaining vacant after setting apart the post for the cadre of Deputy Engineers, were to be distributed amongst the three remaining cadres in the following proportions in terms of Rule 12(c):

Permanent Posts Temporary Posts:2) Assistant Engineers 34% NilClass II3) Sub Divisional Engineer 33% 50%4) Sub Divisional Officers 33% 50%

The proportion of the three cadres shown in Rule 12(c) was to be in force for three years and to be reviewed thereafter in terms of Rule 12(d).

10. Appointment to the posts of Assistant Engineer Class II is by direct recruitment. Appointments to the cadre of Sub Divisional Engineers (to which cadre the original applicants belong) is by promotion from amongst the Junior Engineers (Graduate) from the subordinate service of Engineers. Similarly appointments to the cadre of Sub Divisional Officers is also by promotions from the subordinate service of Engineers i.e. (1) Overseers with Diploma qualifications.(2) Overseers holding upper subordinate certificates.

11. According to the petitioner as of 1970, in terms of the Chart produced at the hearing of the petition in so far as Maharashtra Subordinate Service of Engineers, 50% of the posts of Junior Engineers are to be filled by direct recruitment from graduate Engineers, another 40% by direct recruitment of Diploma holders and 10% are to be filled in by promotion from persons holding the post of Technical Assistant (Practical persons). In other words quotas have been provided even in the feeder posts depending on the source of recruitment.

12. For holders of Class II posts, the next promotional avenue is to the post of Executive Engineer which is a Class I post. 60% of the posts are to be filled in by promotion from the feeder posts and 40% by promotion from the post of Assistant Engineer-I, which is a Class I post. Assistant Engineer Class I are also graduate Engineers. The balance 60%, is to be allocated in terms of Rule 25 of the 1970 Rules in the following manner:

25% to Assistant Engineer -II (Direct Recruits)

25% by promotion from amongst graduate promotees to class II (to which the Original Applicant belongs).

10% from non-graduate promotees to Class II.

13. In the original applications apart from a challenge to Rule 5 of 1970 Rules there is no challenge to either Rule 12(c) or to Rules 24 and 25, of the 1970 Rules which provide for distribution of posts amongst the three cadres and the quota for promotion to the post of Executive Engineers from the three cadres of Class II or from the Cadre of Assistant Engineer Class I. Without challenging the relevant Rules of 1970 and by only challenging Rule 5 of the 1970 Rules and Rule 4(2) of the Seniority Rules of 1983, petitioners who are Sub-Divisional Engineers seek a direction for preparation of a common seniority list with the direct recruit Assistant Engineers Grade II who are also graduates.

14. In Anna S/o. Santoshrao Suke and Ors. v. State of Maharashtra and Ors. being Special Civil Application No. 1029 of 1971, decided on 16th November, 1978, the petitioners who were diploma holders challenged some of the Rules of 1970 on the ground that the diploma holders and the graduates having been appointed in the common cadre of Overseers, initially in the same pay scale and who did the same kind of work, fixation of quota by the 1970 Resolution as between the graduates and the diploma holders was violative of Articles 14 and 16 of the Constitution of India. The promotion of Respondent No. 3 there as Officiating Sub Divisional Engineer was challenged. The Rules of 1970 which were challenged, included Rule 12 (c) and 12(d), which provide for distribution of Class II permanent posts amongst Assistant Engineer (34%); Sub Divisional Engineer (33%) and Sub Divisional Officer (33%). Petitioner also challenged the promotion of Respondent Nos. 4 and 5. This Court after tracing the historical background held that the effect of the Rules of 1970 was that the avenue of promotion for Junior Engineer and Overseers who were Diploma holders has now been split up and in the newly created cadres in Class II, the graduates were considered for promotion as Sub Divisional Engineers while the Diploma holders were specifically considered for promotion as Sub Divisional Officers. Considering the challenge under Articles 14 and 16, the Court relied upon the Supreme Court judgment in State of Mysore v. P. Narasinga Rao : (1968)IILLJ120SC and held, that notwithstanding that public servants have been absorbed in a common cadre, so far as conditions of service is concerned, they can be validly classified separately depending upon educational qualifications. The Court then noted that what the State Government had done was to freeze the posts of Deputy Engineers and create new kind of posts. Creation of new posts by their very nature, must be necessarily followed by preparation of Rules relating to filling of the posts. The challenge was rejected. Thus the creation of new posts and assignment of quotas in allocation of posts was upheld. It may be repeated that the challenge was by diploma holders in the subordinate service to the graduates in the subordinate service being treated as a separate cadre in Class II posts.

15. The State Government in exercise of its power under Article 309 and Section 81(b) of the State Reorganisation Act, in 1978, framed Rules for preparation of the seniority list of Overseers and Deputy Engineers for the period November 1, 1956 and inclusive of April 30, 1960, in 1978. The Rules of 1978 came to be challenged in two petitions which were filed before the Court being Writ Petition No. 3483 of 1980 by one S.G. Bagavat Patil and Ors. v. State of Maharashtra and Writ Petition No. 672 of 1981 of P.V. Joshi and Ors. v. State of Maharashtra and Ors. In S.G. Bagavat Patil Rule 6(iii) of the Rules of 1980 was struck down. The Division Bench issued a direction to replace Rule 33 and other affected Rules in the light of the observations in Patwardhan's case (supra). Various other directions were also issued. In P.V. Joshi, Rule 3 of 1978 Rules were challenged. The petition was dismissed.

16. On December 10, 1981 the Government framed Rules called 'Recognised Bombay State Association Engineers and Executive Engineers Seniority List Rules 1981'. These Rules provide for fixation of seniority between direct recruits and the promotees. The validity of Rule 3(3)(d) and explanation to Rule 3(4) of the 1981 Rules were challenged by M.D. Deshmukh and Ors. by Writ Petition No. 365 of 1982 in this Court. A learned Division Bench, by judgment dated August 6, 1982 struck down the Rule, holding that quota system was not followed while making recruitment of Class I service between November 1, 1956 and April 20, 1960, and that such a quota cannot be introduced for the first time while framing the seniority list and that too with retrospective effect.

17. On 7th October, 1982 the State of Maharashtra in the exercise of its powers under Article 309, framed what are known as Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982. These Rules as the preamble shows were enacted as the Supreme Court had struck down Rule 8(iii) of the Rules of 1980 and Rule 33 of 1970 Rules in S.B. Patwardhan v. State of Maharashtra AIR 1977 S.C. 2017. Rule 8 (iii) was in respect of seniority as per Government Resolution of 29th April, 1960. Rules 4 and 9 of the Seniority Rules of 1982 came to be challenged in the petitions filed by Shri A.Y. Dafle and Anr. v. State of Maharashtra and Ors. in Writ Petition No. 955 of 1983 and Writ Petition No. 956 of 1983 by Shri S.N. Lele and Anr. v. State of Maharashtra. Both the petitions were decided by the judgment of this Court dated 25/26th July, 1983. Rule 4 provided for allocation of vacancies in cadre of Executive Engineers for promotion of Assistant Engineers and Deputy Engineers. Rule 9 provided for allocation of vacancies in cadre of Deputy Engineers for direct recruits and promotees. The challenge to both these Rules was upheld. While upholding the challenge the learned Division Bench noted that 1960 Rules specifically provided that the ratio would be 75:25 as far as practicable and that the executive instructions never intended to be very rigid or inflexible. The Court further noted that between 1960 and 1970 there is a clear deviation from the ratio fixed in the 1960 Rules and large number of promotees got the advantage of the higher post The Court found that after passage of 22 years it would not be just and reasonable for the State Government to contend that they would fall back upon the rules of 1960 which were not rigid and by a fiction allot the first three fourth of the vacancies every year to the direct recruits. A further direction was issued to comply with the direction issued in the case of Bagayat Patil (supra).

18. The Government then framed what are known as the Executive Engineers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and Preparation and Revision of Seniority List) Rules, 1983, which hereinafter shall be referred to as the 1983 Seniority Rules. It is Rule 4(2) of these Rules which are also the subject matter of challenge in the Original Application and are the subject matter of the present petition.

19. We may now briefly advert to the judgment in Patwardhan, where Rule 33, providing for seniority in the 1970 Rules and Rule 8(3) providing for seniority in the 1980 Rules, were the subject matter of challenge. One S.B. Patwardhan who was promoted to the post of Deputy Engineer from the feeder cadre in the subordinate service. Patwardhan challenged the vires of Rule 8(3) of the 1960 Rules and Rule 33 of the 1970 Rules on the ground that they were violative of Article 14 and 16 of the Constitution of India. They pertained to seniority. The challenge was on the ground that the seniority of the Officers was made dependent upon the fortuitous circumstances of confirmation. The petition was dismissed by this Court. The Supreme Court, however, allowed the Appeal. While striking down the Rules, the Supreme Court noted that the Cadre consisted of permanent and temporary employees and the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees and all other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining Rules of Seniority as between persons recruited from different sources. We may also refer to Writ Petition No. 620 of 1984 and other petitions filed in this Court which were disposed of by judgment dated 9th December, 1985. The petitioners were grouped into various groups. The third group of petitions namely Writ Petition No. 1905 of 1983 (Nagpur) and Writ Petition No. 1326 of 1985 (Nagpur) were filed by two graduate Engineers. They challenged Rules 4 and 12 of the Seniority Rules framed in 1983. The challenge was to the promotion of Assistant Engineers Class I as Executive Engineers and some other reliefs. In contra distinction Direct Recruits had filed Writ Petition No. 660 of 1984 (Aurangabad) and other petitions for enforcing Rule 4 of the Seniority Rules of 1983. The learned Bench observed that the allocation of vacancies on the basis of quota is not bad in law. A challenge was also made that Rule 4(2) of the 1983 Rules which provided for allocation of first 40% vacancies to Assistant Engineers Class I was a departure from the 1970 Rules. The Court held that it seems to be a misreading of the 1970 Rules and Rules 4(2) of the 1983 Rules is in conformity with the basic Scheme under the 1970 Rules. A specific challenge was made that there ought not to have been any distinction between the Assistant Engineers Class II and the Sub Divisional Engineers since both are graduate Engineers. In para.75 of the judgment this Court noted that the Government had decided to divide Class II posts into various categories and that scales of pay of Assistant Engineers Class II and Sub Divisional Engineers as also duties and responsibilities are slightly different. The Court further held that 'The cadre of Sub-Divisional Engineers does not have any direct recruits at all. Hence, these two are distinct cadres and it is not open to me to say that they ought to have been merged.'

20. From a perusal of the various judgments, it is manifest that the disputes between the direct recruits and promotees in all these petitions was to the fixation of inters seniority except in the case of Suke, where Rule 12(c) of the 1970 Rules distributing the posts amongst the three cadres in Class II were challenged. There was no challenge made either to 1960 Rules, which set a ratio of 75:25 for appointment by nomination and promotion to the posts of Executive Engineer or to the Rules of 1970 where the ratio by appointment by nomination and promotion to the post of Executive Engineer was fixed in the ratio of 40:60. Promotion to the post of Executive Engineers is provided by Rule 25. 40% of the posts are reserved for direct recruits Assistant Engineer, Class I and 60% for promotees from Class II. In so far as promotions from Class II, quotas are fixed for the three cadres in Class II as already set out earlier.

21. The main challenge in the Original Applications is to Rule 5 of the 1970 Rules and Rule 4(2) of the Rules of 1983. We have earlier reproduced Rule 5 of 1970 Rules. Rule 4 reads as under:

4. Determination of strength of cadre of Executive Engineers and allocation of vacancies in that cadre for promotion of Assistant Engineers, Class I and officers belonging to Maharashtra Service of Engineers, Class II - (1) As far as possible within 60 days from the date of publication of these rules in the official Gazette, the relevant Department shall determine and declare the strength of the cadre of Executive Engineers for the fractional year and for each of the years during the period commencing on the 1st day of April, 1971 and ending on the 31st March, 1972 and thereafter, as far as possible within 60 days from the commencement of every year, the relevant department shall determine and declare the strength of the Cadre of Executive Engineers for that year.

(2) out of the total number of vacancies in the cadre of Executive Engineers as determined under Sub-rule (1) for the fractional year or for any particular year, the first 40 percent of the vacancies shall be allocated for filling by promotion of Assistant Engineers Class I, who have completed not less than four years continuous service in that capacity. The subsequent remaining 60 per cent vacancies in the fractional year, or as the case may be, in the said particular year shall be allocated for filling by promotions of Deputy Engineers who are not fortuitously appointed as such and who have completed not less than seven years continuous service in that capacity; and if any vacancies remain to be filled after promoting Deputy Engineers, those eligible for promotion remains to be promoted then all the subsequent 60 per cent vacancies referred to above shall be allocated for filling by promotions of officers belonging to other cadres in Maharashtra Service of Engineers, Class II, in the following ratio and order namely:

i) 25 per cent for Assistant Engineers, Class II who have completed not less than seven years continuous service in that capacity,

ii) 25 per cent for the Sub Divisional Engineers who are not fortuitously appointed as such and who have completed not less than seven years continuous service in that capacity and,

iii) 10 per cent for Sub Divisional Officers who are not fortuitously appointed as such and who have completed not less than ten years continuous service in that capacity,

Explanation 1: For the purpose of determining the proportion of vacancies to be allocated under these rules, a fraction of half or more shall be treated as one and a fraction of less than half shall be ignored.

Explanation II: For the purpose of determining continuous service of an officer under this rule, the period during which he is appointed fortuitously shall be excluded.

The Rule thus merely provides for ascertainment of vacancies for the fractional year or for any particular year and filling in those vacancies in terms of the ratio set out therein. The first 40% of the vacancies however have to be allocated for promotion of Assistant Engineer Class I and the balance 60% to be filed in the order set out in Rule 4(2). Further the petitioners themselves have averred in para.15 of the O.A. No. 473 of 1998 that the 1982 Rules generally provide for seniority and not conditions of recruitment. This ratio merely regulate reiterates what is set out in Rules 24 and 25 of the 1970 Rules, which have not been challenged.

21. In support of the amended prayer clause, the petitioners in O.A. No. 473 of 1998 also amended the Application. The petitioners have referred to the various judgments including in the case of A.S. Suke (supra) and noted that by judgment dated 16th November, 1978, a Division Bench of this Court upheld the classification between Sub Divisional Engineers and Sub Divisional Officers as based on valid criteria. The Petitioners have also referred to other Writ Petitions filed before this Court challenging the classification between the Assistant Engineers Class II and Sub Divisional Engineer as both are Graduate Engineers. The petitioners have set out that this ground was rejected by the Bench of Mrs. Sujata V. Manohar J., and S.M. Daud, J., by judgment and order dated 9th December, 1985 along with 14 other Writ Petitions pertaining to the fixation of the seniority of Deputy Engineers prior to 1970. Reliance is placed in the judgment in Writ Petition No. 620 of 1984 and 14 other Direct Recruit Class II Engineering Officers Association Nagpur and Ors. v. State of Maharashtra and Ors. The Petitioners summarised the findings of the Court as under: It was held that the scales of pay of Assistant Engineer Class II and Sub Divisional Engineers as also duties and responsibilities are slightly different, the cadre of Sub Divisional Engineers does not have any direct recruits at all. These are two distinct cadres and it is not open to me to say that they ought to have been merged. The further pleadings are as under: The 1970 Rules provided for different pay scales. Responsibilities and duties were also different. By G.R. dated 16th April, 1984 which is given retrospective effect the same pay scales have been shown for the Sub Divisional Engineers and the Assistant Engineer Class II and the Assistant Engineer Class II have been re-designated as Assistant Engineer Grade I. It is set out that the factor which weighed in the mind of this Court while holding that the two cadres of Assistant Engineer Class II and Sub-Divisional Engineer are different was the pay scale. The classification, therefore, made in the year 1970 and could be said to be a reasonable classification based on the pay scale, responsibilities and duties, has lost its distinction by efflux of time as from 1981 the pay scales are the same except for the fact that the Assistant Engineer Class II are given a higher starting pay of Rs. 660/- but this distinction has also been done away by the Government Resolution dated 14th December, 1995 which has been given effect from 1986. Thus the classification made between Assistant Engineer Class II and Sub-Divisional Engineer has lost its basis of classification. It, therefore, cannot be said that there is a reasonable classification having nexus to the object sought to be achieved by this classification. To their knowledge no decision has been given by the Honourable Supreme Court of India on this particular point and even if there is any judgment, the same will not be binding on the Tribunal as the pay scales are the same. Reference is then made to the Revision Pay Rules of 1978. It is pointed out that the pay scale of Assistant Engineers Grade II and Sub Divisional Engineer is the same from 1976 and this was not brought to the notice of this Court. The averments, therefore, are that though in the Direct Recruits case, this Court held that there are two distinct cadres of Assistant Engineer Class II and Sub Divisional Engineers, on account of passage of time, as pay scales are now the same as also duties and responsibilities, the continuance of the classification into two cadres ceases to have a nexus with the object and as such Rule 5 to that extent is unconstitutional.

22. The challenge by the petitioners may be summed up as under:

After recruitment to Class II service by promotion and by nomination, different quotas are fixed on the basis of source of recruitment for the promotion to the post of Executive Engineer. In so far as the Assistant Engineer Class II and Sub Divisional Engineer, both are graduates carrying the same pay scale, the posts are inter-eligible and the duties are the same. Once they loose their identity in the promotional post a further classification for promotion, by fixation of quotas for the two cadres on the basis of source of recruitment is unconstitutional.

It is submitted that the impugned Rule is unreasonable, arbitrary and discriminatory, violating the guarantee of equality and opportunity engrafted in Articles 14 and 16 of the Constitution. Article 14, forbids Class legislation, but does not forbid reasonable classification. In order to pass the test of permissible classification, two conditions must be fulfilled, viz. (i) the classification must be founded on an intelligible differentia which distinguishes the persons or groups which are grouped together, (ii) that the differentia must have rational relation to the object sought to be achieved by the Rule in question. What is necessary, therefore, is that there must be a nexus between the basis of classification and object of the Act. It is submitted that there is no intelligible differentia, nor is there any nexus with the object sought to be achieved and the said classification is completely arbitrary and discriminatory, denying equality to large segment of employees. The Maharashtra Service of Engineers Class II is one class eligible for the promotion to the post of Executive Engineer. Out of this one class, distinction qualification between direct recruits and promotees is attempted on the basis of different mode of recruitment in the lower cadre. However, after the recruitment from two sources, the appointees form one integrated cadre or class and they lose the initial character as direct recruit or promotees. For initial recruitment such a classification based on nomination and promotion is permissible, but after the recruitment and integration into one cadre, such a classification for further promotion based on initial mode of recruitment is not permissible. Both Assistant Engineer Class II and Sub Divisional Officer (Graduate) carry the same pay scaled with effect from 1st January, 1986; both belong to the same cadre of Engineering Service Class II though there are different sub-categories under it, for the purpose of identification. Both had consent of Public Service Commission. Both are discharging similar functions, bearing similar responsibilities, and have to have equal amount of experience for promotion. The posts are interchangeable and they also discharge the same functions. Thus providing quotas for promotion amongst Assistant Engineer Class II and Sub Divisional Officer (Graduate) is arbitrary having no nexus to the object and consequently the classification between the two ought to be set aside. Even if earlier there had been different pay scales and nature of duties, the passage of time had altered the fact situation which has the consequence of working out the basis on which the difference is founded. The learned Counsel relies on the following observation in L.I.C. of India v. Consumer Education & Research Centre : AIR1995SC1811 :

The doctrine of classification is only a subsidiary Rule evolved by the Courts to give practical content to the doctrine of equality. Over emphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of glorious concept of equality enshrined in Article 14. The over emphasis on classification would inevitable result in substitution of doctrine of classification to doctrine of equality and the preamble of the Constitution which is integral part of the scheme of Constitution. Maneka Gandhi ratio extricated it from this moribund and put its elasticity for egalitarian path finder, lest the classification would deny equality to larger segment of society.

Consequent to Rule 5 being declared unconstitutional to the extent of the cadres of Assistant Engineer Grade II and Sub Divisional Engineer, Rule 4(2) will also have to be declared as unconstitutional and consequently a common seniority list will have to be prepared.

23. On behalf of the State Government it is contended that there is nothing unreasonable or against public interest in the caderisation done in the year 1970 and the same has been upheld by the Supreme Court, This Court it is submitted cannot strike down the Government Order of formation of cadre merely because there may be some variance and contradictions. Some play in the joints, even some wobbling, must be left to the Government without fussy forensic monitoring, since the administration has been entrusted by the Constitution to the executive, not to the Court. The challenge to subordinate legislation or the exercise of executive power can only be struck down if it be unreasonable, manifestly arbitrary and violative of Part III of the Constitution of India and/or malafide. In the instant case there is no such challenge either before the Tribunal or before this Court. Merely because the chances of promotion are affected the recruitment process cannot be challenged. The Rules have been framed either under Article 309 of the Constitution or in the exercise of the Executive power of the State in the absence of Rules made under Article 309 of the Constitution. They took into consideration the various cadres and the need for providing quota for each of the cadres to the next higher promotional post considering the source of recruitment. It is denied that all things are equal.

24. On behalf of the private Respondents it is submitted that once classification is permissible, it is open to provide quota considering that the feeder category itself consists of different category of posts. In the instant case firstly it is pointed out that the Rules providing for quota have not been challenged and in the absence of challenge it is not possible for this Court to entertain the same. Apart from that it is submitted that challenge in the present form as now being contended was not made before the Tribunal. Unless the challenge was so made it is not possible for this Court for the first time to entertain such a challenge and grant relief. Thirdly it is contended that the Tribunal itself recorded a finding, 'that in the case of Direct Recruits, Class-II Engineering Association (supra), the cadre of Assistant Engineers, Class II and Sub-Divisional Engineers have been held to be distinct cadres. Though the reasons relating to pay scale may no longer subsist, but the other reason that the Sub Divisional Engineer do not have any direct recruits still holds valid.' The Supreme Court did not reverse the judgment of this Court. The Appeals were dismissed. That finding subsists and as such there is no question of this Court interfering in the exercise of its extra ordinary jurisdiction.

25. The material produced before us and it is not necessary to be reiterated would show that the Assistant Engineers Class II. are directly recruited in the Class II service from amongst graduate Engineers through M.P.S.C. along with Assistant Engineer Class I. In so far as the Sub Divisional Officers and Sub Divisional Engineers, they are holding the posts by promotion, from the feeder posts which are in the subordinate service. In terms of the Public Works Manual, Appendix 42 Serial No. 13 in the matter of delegation of powers in terms of the chart produced before us upto the year 1984, in so far as the power to accord technical sanction for original work, ordinary repairs, power to accept tender were different. By amendment the P.W.D. Manual Appendix 42 by G.R. dated 18th November, 1996 these were made more or less the same except the power to accept tender. By G.R. dated 22nd September, 2000 the higher power to accept tender has been suspended. Thus after the filing of the O.A., the difference if any which existed in matter of duties when the O.A. was filed in 1998, no longer subsist. In terms of Rule 5, they, however, belong to different cadres. Appointment to the cadre of Assistant Engineer Class II is wholly by direct recruitment in Class II service whereas appointment to the post of Sub Divisional Engineer is wholly by promotion from the subordinate service of Engineers.

26. We may now refer to some of the judgments relied upon on behalf of the petitioners. In Mervyn Countinho and Ors. v. Collector of Customs, Bombay and Ors. : (1967)ILLJ749SC , the issue was to inters seniority. The Supreme Court held that when there is only one source of recruitment, and not two sources of recruitment a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one.

In State of Mysore v. Krishna Murthy and Ors. : (1973)ILLJ42SC , the question for consideration was validity of a division into two classes of members of the same service, belonging to the same cadre, for purposes of a difference to be made in their promotional chances. The Supreme Court held that if the facts of particular case disclose no rational distinction between members of what is found to be really a single class, no class distinctions can be made in selecting the best. Articles 14 and 16(1) of the Constitution must be held to be violated when members of one class are not even considered for promotion. At the same time the Court observed 'If, on the facts of a particular case, the classes to be considered are really different, inequality of appointment in promotional chances may be justifiable.'

In S.P. Patwardhan and Anr. (supra) the challenge was to the Rules of 1960 and 1970 in the matter of inters seniority between the direct recruits and promotees based on confirmation in this very service. One of the contentions urged was that officiating Deputy Engineers do not belong to Class II cadre. That contention was rejected. The Rules were struck down considering that the Rules provided that probationers recruited during any year shall in a bunch be treated as senior to promotees confirmed in that year The Court also noted that the accident of confirmation cannot be an intelligible criterion for determining seniority. The Court noted that Rule 33 adopts the seniority-cum-merit principle for preparing the statewise select list of seniority and that it leaves the validity of confirmation to depend on the mere accident of confirmation and this is impermissible under Article 14 and 16 of the Constitution of India.

In S.L. Sachdev and Ors. v. Union of India and Ors. AIR 1981 SC 411 the Supreme Court held that once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them, by subjecting one class to more onerous terms in the matter of promotional chances.

In N. Abdul Basheer and Ors. v. K.K. Karunakaran and Ors. : (1989)IILLJ67SC , quota was provided for promotional post Grade II Excise Inspector from the Post of Excise Preventive Officer by dividing the quota of promotion between graduate Preventive Officers and non-graduate Preventive Officer The Petition filed before the High Court was allowed. The matter was in Appeal before the Supreme Court. While dismissing the Appeal the Court observed as under:

This is not a case where the cadre of officers was kept in two separate divisions. It was a single cadre they were all equal members of it.

It was contended before the Supreme Court that it was open to the Government to have fixed the ratio between graduates and non-graduates. The recognition of merit and that more merit in the post of Excise Inspectors would be conducive to better administrative efficiency. The Court accepted that ordinarily, it is for the Government to decide upon the considerations which in its judgment, should underline a policy to be formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government it is always open to the Court to strike down the differentiation as being violative of Articles 14 and 16 of the Constitution. The Court found on the facts in that case that both posts were treated as equivalent.

In State of J. & K. v. Trilok Nath Khosa : (1974)ILLJ121SC , it was held that for the sake of maintaining administrative efficiency it was possible to sustain promotions based on qualifications. It is not necessary to refer to some other judgments relied upon on behalf of the petitioners.

28. In Direct Recruit Class II Engineering Officers' Association (supra) considering this very present service, in the matter of providing of quota, this is what the Supreme Court observed:

It is, however, been rightly suggested on behalf of the Appellants that when recruitment is from more than one source, there is no inherent invalidity in introducing quota system, but as was observed in Subraman case, the unreasonable implementation of such a rule may attract the frown of the equality clause.

Further, if a rule fixing the ratio for recruitment from different sources is framed, it is meant to be respected and not violated at the whims of the authority. It ought to be strictly followed and not arbitrarily ignored. This, of course, may not prevent the government from making slight deviations to meet the exigencies. If it is discovered that the rule has been rendered impracticable it should be promptly substituted by an appropriate rule according to the situation.

In respect of this very service, therefore, the Supreme Court, accepted the contention that if recruitment is from more than one source, if quota is provided, there is nothing arbitrary about the same. In summing up, this is what the Supreme Court said : '(C) when appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources and if Rules are framed in this regard, they must ordinarily be followed strictly.'

The mere fact, therfore, that in course of time and even earlier the pay scales have become the same, as also nature of duties, by itself, is not the only test. The test is are there different sources of recruitment. If there be different sources of recruitment then a rule can be provided for fixing quotas. Such a Rule does not infract the Constitutional mandate of Articles 14 and 16. Once that is accepted, the argument now advanced cannot be countenanced.

29. We may next refer to the judgment in Kuldeep Kumar Gupta and Ors. v. H.P.S.E.B. and Ors. 2001 1 CLR 578. The issue was whether it was open to frame Regulations providing separate quota of promotional avenue for the less qualified Junior Engineers in reference of the claim of the qualified diploma holder junior Engineers. The feeder cadre for the post was Junior Engineer. The Court after considering the earlier judgments observed: 'But we fail to understand as to how providing a quota for a specified category of persons in the promotional post can be held to be reservation within the ambit of Article 26(4). Providing a quota is not new in the service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotions, the employer fixes a quota for each category so that the promotional cadre would be equi-balanced and at the same time each category of persons in feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of administration when it is the employer who is best guided to decide the percentage of posts in the promotional cadre which can be extended for different category of persons'.

30. We have earlier adverted to this issue of providing quota for cadres based on different sources of recruitment and noted that the Supreme Court has held that this would not be violative of Articles 14 and 16. We have referred to the observation of the Supreme Court in Direct Recruit Class II Employees (supra) in respect of the very service. Making provisions and providing quotas for persons coming from different feeder categories, would not be violative of Articles 14 and 16 of the Constitution of India. This finding in respect of the very service and in respect of the same cadres, must result in holding that it is permissible to provide for quotas for promotions for the different cadres based on the source of recruitment. In the present service, providing of quotas has been upheld. In the instant case, there are several feeder posts for the promotion to the post of Executive Engineer. These feeder posts themselves have different source of recruitment and feeder posts and quotas. The petitioners who are holding the post of Sub Divisional Engineers were promoted from the posts of Junior Engineer (Graduate) from the Subordinate service. Similarly Sub Divisional Officers were promoted from the feeder posts of Overseers with Diploma qualification and Overseer holding upper subordinate certificate. The fixation of quotas between Sub Divisional Engineers and Sub Divisional Officers has been upheld in Sukhe's case (supra). In so far as Assistant Engineers are concerned they are direct recruits. Similarly there is another feeder post of Assistant Engineers Class I, who are direct recruits. Considering the four cadres and different sources of recruitment, it was open to the State, to provide quotas for the various cadres. The petitioners, as an illustration, have not challenged the 10% quota meant for Sub Divisional Officer (Diploma Holders) who are not even graduates and they have no difficulty in accepting a distinct promotional quota for them for promotion to the post of Executive Engineers. Also in the absence of a specific challenge to the Rules of 1970 which provide for quotas to the cadre of Sub Divisional Engineer, considering the law declared by the Supreme Court and to which we have referred earlier, the challenge must fail. The Seniority Rules have to be construed, bearing in mind the different sources of recruitment and the provisions for separate lists and inters seniority in terms of the Rules.

31. In our opinion this petition must, therefore, fail. Firstly, the 1970 Rules which provide for quota for promotion to the post of Executive Engineer from the various feeder posts except for Rule 5 have not been challenged before the Administrative Tribunal nor are they directly the subject matter of challenge before this Court. This Court otherwise could not have entertained such a relief without the petitioners having first applied for such a relief before the Tribunal. Secondly by several judgments the legality of constitution of cadres which are feeder posts to the post of Executive Engineers has been upheld including the cadres in issue. Once cadres and quotas are accepted, the fact that two cadres which are both feeder posts for promotion to the post of Executive Engineer may consist of graduates only and the pay scale or nature of work or duties is the same becomes irrelevant. Thirdly, the challenge to Rule 4 is primarily based on the challenge to Rule 5 of 1970 Rules. Argument has been that these Rules which make a distinction between the two cadres for promotion as Executive Engineers should be treated as non est. Once the 1970 Rules provide for distribution of posts and quota for promotion amongst the various cadres, that challenge has to be negated. Consequently, the challenge to Rule 5 has to be rejected. Rule 4(2) which has also been challenged, merely provides for allocation of posts by ratio and order, for promotion to the cadre of Executive Engineer for the fractional year and every year. The validity was upheld in Direct Recruits case. The ratios as set out in Rule 4(2) are as provided by Rule 25 of the 1970 Rules which Rule has not been challenged. This argument was also advanced in the Direct Recruits case. Except to say that there ought not to have been a distinction between Assistant Engineer Class II and Sub Divisional Engineer based on qualification, pay and duties no other contention has been advanced. Under Rule 13 separate seniority lists have to be provided for Assistant Engineer Class II and separate seniority lists specifically for Sub Divisional Engineer and Sub Divisional Officers. That Rule has not been challenged. Thus separate seniority lists are being prepared for the purpose of promotion to the post of Executive Engineer, based on the quota fixed for each cadre. Promotions are being done based on such seniority lists. There is yet another additional reason, if any other reason is required not to exercise our extra ordinary jurisdiction. These Rules are in force since 1983. The challenge for the first time came in 1999. The allotment of vacancies from the fractional year or the year is being regulated by the Rules. The quota is not created for the first time in 1983 but is in existence from 1970. Though Rule 33 of the 1970 Rules of seniority was challenged the other Rules providing for quota amongst the various cadres, was not challenged. As observed in Direct Recruit Class II Engineer Officers case (supra), the seniority and the vested right of the many through years of accustomed practice, should not be trifled with unless it is manifestly arbitrary or unworkable.

In the instant case once we hold that providing quotas for the cadre of Assistant Engineer Class II and Sub Divisional Engineer, is permissible then there can be no violation of Articles 14 and 16 of the Constitution of India.

32. For all the aforesaid reasons in our opinion the present petition must fail and consequently Rule is discharged. In the circumstances of the case there shall be no order as to costs.