Shankarappa Swami Vs. State of Maharashtra & Ors.  INSC 1644 (9
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6918 OF
2009 (Arising out of SLP (C) No.4871/2009 Baswant Shankarappa Swami ..
Appellant Versus State of Maharashtra & Ors. ..Respondents JUDGEMENT R.M.
This appeal by special leave is directed against the judgment and
order dated November 21, 2008 passed by the High Court of Judicature at Bombay
whereby the writ petition filed by the present appellant was dismissed and the
judgment dated November 26, 2007 passed by the Maharashtra Administrative
Tribunal (for short `the Tribunal') has been upheld.
The appellant is a Graduate Engineer (Civil). He was selected and
nominated by the Maharashtra Public Service Commission (for short `the
commission') as Assistant Executive Engineer Class I in the Maharashtra Service
of Engineers (Group A) in the Irrigation Department on September 11, 1989. The
appellant was promoted as Executive Engineer, a Class I post, vide office order
dated September 7, 1993. On March 1, 1996 the Governor of Maharashtra made the
rules called the Superintending Engineer (Civil) in the Maharashtra Service of
Engineers Group A, in the Irrigation Department (Recruitment Rules), 1996 (for
short `the Rules'). Rules 2 and 4 thereof came into force on the date of
publication of the notification in the official gazette while as regards rule
3, it was provided that it shall come into force on such date as may be
notified by the State Government in consultation with the Commission. On
September 30, 1999, a notification came to be issued declaring March 1, 2001 to
be date for coming into force of rule 3. According to the appellant, although
he completed 7 years on the post of Executive Engineer (Civil) in the month of
September 2 2000 and his juniors in the cadre of Executive Engineer were
promoted to the post of Superintending Engineer in 2005 but he was denied
promotion having not gained experience in any one or more of the branches from
each of the groups provided in rule 3. The appellant constrained thereby
approached the Tribunal under Section 19 of the Maharashtra Administrative
Tribunals Act, 1985 for redressal of his grievance.
The appellant challenged the constitutional validity of rule 3 before the
Tribunal being arbitrary, unreasonable and violative of Articles 14 and 16 of
the Constitution of India.
The Tribunal vide its judgment dated November 26, 2007 held rule 3
intra vires by considering the matter thus:
noted the contention raised by the applicant in the Original Application, we do
not find any merit or substance put forth by the applicant to the challenge to
the vires of the Rule 3 of the Rules. We accordingly hold that Rule 3 being
intra vires and do not contravene either Article 14 or 16 of the Constitution
Not satisfied with the judgment of the Tribunal, the appellant
filed a writ petition under Article 226 of the Constitution before the High
Court of Judicature at Bombay and put in issue 3 specifically the correctness
of the Tribunal's view and set up the ground that rule 3 was ultra vires the
The High Court observed that neither before the Tribunal nor
before them, it had been substantiated as to how rule 3 was ultra vires the
Constitution and, accordingly, dismissed the writ petition.
It is pertinent to notice that in the original application before
the Tribunal, while challenging the constitutional validity of rule 3, the
appellant set up the grounds thus:
the `said rule' is ultra vires the constitutional mandate of equality before
law and equal opportunity in Government Service as provided by Article 14 and
Article 16 of the Constitution of India. The Rule 3 bestows unfettered powers
upon the Respondents in the matter of promotions to the post of Superintending
Engineer and is unreasonable, arbitrary and discriminatory. It is also
incongruous and contradictory to the proviso to Rule 2 which provides for
relaxation of 2 years of service in the feeder cadre out of 7 years service
thereby making Rule 3 absurd, which mandates total of 6 years of service with 3
years service in each of Group (a) and (b). The Rule 3 is further
discriminatory as the classification of Executive Engineers, a homogenous
group, into two unequal and artificial classes totally at the mercy of the
respondents who have absolute power to post or not to post an employee to a
particular Group (a) or (b) post.
Rule 3 provides that an Executive Engineer in the Irrigation Department shall
have "gained an experience of not less than 3 years in any one or more of
the branches from each of the following two groups, namely:
research, (ii) designs, (iii) project preparation (iv) investigation or (v)
Construction or (ii) Management.
it does not provide for a situation where an eligible Executive Engineer is not
posted to either Group (a) or Group (b) or for reasons of non-availability of
the posts. The said Rule therefore is arbitrary, unreasonable and bestows
unfettered power in the Respondents in the matter of promotions by posting or
not posting a particular Executive Engineer to either of the groups.
matter of fact, this rule is incongruous, contradictory and unreasonable on the
back drop of proviso to Rule 2 which provides that where sufficient persons
having held the posts of Executive Engineer (Civil) for a period of not less
than 7 years as aforesaid are not available to fill up the vacancies, then the
requirement of the such service of 7 years may be relaxed, so however that such
relaxation shall not be by more than 2 years.
evident that if an Executive Engineer is to be promoted according to this
proviso, he puts a maximum service of 5 years and undisputedly cannot comply
with the provisions of Rule 3 which lays down a total of 6 years experience, 3
years each in Group A and Group B posts."
The High Court has practically given no reasons as to why
contention raised by the writ petitioner (appellant herein) in challenging the
vires of rule 3 did not merit acceptance except saying that it has not been
substantiated as to how rule 3 was ultra vires the Constitution. The
consideration of the issue by the High Court concerning vires of rule 3 is far
from satisfactory. On a short ground of non-recording of reasons and
non-consideration of the contentions raised by the appellant in challenging the
constitutional validity of rule 3, in our view, the appeal has to be allowed
and matter deserves to be sent back to the High Court for consideration afresh.
The appeal is, accordingly, allowed to the aforesaid extent. Writ
Petition No. 6812/2008 is restored on the file of the High Court for its fresh
consideration. No order as to costs.
(B. Sudershan Reddy)
NO.1A COURT NO.10 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF
PROCEEDINGS CRIMINAL APPEAL NO. 986 OF 2007 PANDURANG CHANDRAKANT MHATRE &
VERSUS STATE OF MAHARASHTRA Respondent(s) Date: 08/10/2009 This matter was
called on pronouncement of judgment today.
Petitioner(s) Mr. R. Sundaravaradan, Sr. Adv.
Santosh Paul, Adv.
Naresh Kumar, Adv.
Respondent(s) UPON hearing counsel the Court made the following O R D E R
Hon'ble Mr. Justice R.M. Lodha pronounced the judgment of this Bench comprising
of Hon'ble Mr.
D.K. Jain and His Lordship.
appeal is allowed in part.