STATE OF MAHARASHTRA Vs. S S PAKHARE

JUDGEMENT

(1.) By this petition, the State of Maharashtra has challenged the order dated 27th April, 2000 passed by the Maharashtra administrative Tribunal deciding Original Application No. 107 of 1999 and original Application No. 146 of 1999. Dispute before the Maharashtra administrative Tribunal was raised by several applicants who were entitled to promotions in the cadre of Executive Engineers. The tribunal, after considering all the relevant Rules, came to the conclusion that certain directions are liable to be issued and, therefore, issued directions in paragraph 22. Paragraph 22 reads thus :

(2.) The State of Maharashtra, by this petition, takes exception to the third direction issued by the Maharashtra Administrative Tribunal on the ground that such direction could not be issued in the face of Rule 4 of the Maharashtra service of Engineers, Class I and Maharashtra Service of engineers Class II (Regulation of seniority and preparation of revision of seniority lists) Rules, 1983, hereinafter referred to as "the Rules"). The contention is that the third direction which requires certain promotions to be made from outside the cadre to which it is available and further direct that such appointments by promotion would not be considered as fortuitously appointed without taking into consideration the language of Rule 2 (g) of the Rules. "fortuitously appointed", as per the definition, means a person appointed in any vacancy which according to Rule 4 or Rule 12 is not allocated or assigned for the class of officers to which the person appointed in that vacancy belongs or is appointed in contravention of any recruitment rules.

(3.) Rule 4 provides for determination of cadre strength of Executive engineers and promotion to that cadre. Clause (2) of that Rule provides for break-up of the vacancies and the manner in which they are to be filled. The recruitment by promotion under these Rules, therefore, has to be as contemplated by Rule 4 (1) and (2) of the Rules. The directions issued by the Tribunal, as quoted above, are in consonance with these Rules insofar as the first and second directions are concerned. The grievance which the State makes against the third direction is that it provides for appointment to a particular class to a particular vacancy of persons not belonging to that class or category or cadre. Even if this can be done, the promotions of such cadre from such category will have to be termed as fortuitous promotion as defined by Rule 2 (g). A direction requiring that service can be treated as fortuitous is, therefore, a direction inconsistent with rule 4 and Rule 2 (g) of the Rules. The Tribunal, therefore, could not have issued such a direction. In our opinion, therefore, interest of justice would be met if the order of Maharashtra Administrative Tribunal dated 27th April, 2000 is confirmed except the third direction which is directed to be deleted. The petition accordingly is partly allowed and disposed of.