S.R. Dongaonkar, J. - (1.)THE Petitioners are challenging the order of Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad in Original Application No.2759 of 2000, by which their challenge, to the Notification dated 7th February, 1981 laying down the Executive Engineers (Mechanical) Maharashtra Engineering Services Class I (Irrigation Department) Rules, 1981, under Article 309 of the Constitution of India whereby, for the appointment on the posts of Executive Engineer (Mechanical) ratio for promotion for Deputy Engineers (Graduate) and Deputy Engineers (Non Graduates) was directed to be 2:1, had failed.
(2.)FACTS leading to the Petition may be stated thus: Petitioners No. 1 and 2 are working as Deputy Engineers (Mechanical) in the office of the Superintending Engineer, Irrigation Circle (Mechanical) (CP) Nanded, whereas Petitioner No.3 is working as Deputy Engineer in the office of the Deputy Engineer, Irrigation Work Shop Subdivision, Aurangabad. They are Graduates in Mechanical Engineering. They had been in the cadre of Deputy Engineer by way of Rules of the Recruitments. It is alleged that the promotions to the post of Executive Engineers in the said department were made by way of promotion with the proportion of 9:1 for Graduate Mechanical Engineers and Non-Graduate Mechanical Engineers from Deputy Engineer cadre. This Rule was prevailing in pursuance to the Government Resolution dated 19/12/1970. However, when the matter was reconsidered by the administration, by the Rules framed under Article 309 of the Constitution of India dated 2/2/1981; the said proportion for the appointments to the post of Executive Engineer was altered from 9:1 to 2:1 (for the Graduate Deputy Engineers and Non Graduate Deputy Engineers). Because of this, the promotional chances of the Petitioners i.e. Graduate Engineers from Deputy Engineer cadre to the post of Executive Engineer were considerably reduced and thereby caused discrimination, so also injustice, by giving more chances of appointments to the post of Executive Engineers by way of promotion to the Non Graduate Deputy Engineers. It is alleged that this change was discriminatory and arbitrary exercise of the administrative powers and therefore, the said Rule needs to be struck down in view of the rigours of Article 14 of the Constitution of India. The Petitioners therefore, approached to the Maharashtra Administrative Tribunal, Bombay, Bench at Aurangabad in Original Application No. 2759 of 2000.
Maharashtra Administrative Tribunal, however, dismissed the Petition of the Petitioners at the admission stage itself. According to the Tribunal, the Petitioners were challenging the Rules of 1981, after prolonged period having worked under these Rules for about 19 years. Such long delay remained unexplained. It was also found that fixing of such ratio i.e. 2:1 was a matter of administrative policy and Courts could not substitute their own views in such matters. Further, having found that the Petition of the Petitioners was meritless, the same was dismissed by Maharashtra Administrative Tribunal by its Judgment and Order dated 31/1/2001.

The Petitioners are taking exception to this Judgment and Order.

(3.)LEARNED counsel for the Petitioners Shri Telgaonkar has submitted that initially the proportion of promotions from the cadre of Deputy Engineer to the cadre of Executive Engineers for Graduates and Non-Graduates was 9:1 followed since 1970. However, in the year 1981 by the Rules under Article 309 of the Constitution of India, the same was changed to 2:1 and as such it resulted in an injustice and discrimination for the Graduate Deputy Engineers. According to him, though the challenge was made after about 19 years of the recruitments, the same was made at this stage because the Petitioners; at that time; became due for promotion to the post of Executive Engineers. According to him, even if there is delay, when there is violation of fundamental rights, particularly under Article 14 of the Constitution of India, such Rules can be challenged at any point of time. He has further submitted that even if it is treated as a policy decision, the judicial review is permissible. He has relied on the Judgment of the Apex Court reported in (2007) 4 Supreme Court Cases, 737), Directorate of Film Festivals and others v/s. Gaurav Ashwin Jain and others, wherein in para 16 it is observed thus:
"The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer, wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review (vide Asif Hameed v. State of J and K, Sitaram Sugar Co. Ltd. v. Union of India, Khoday Distilleries Ltd. v. State of Karnataka, BALCO Employees' Union v. Union of India, State of Orissa v. Gopinath Dash and Akhil Bharat Goseva Sangh v. State of A.P.)."

Learned counsel for the Petitioners has further relied on the principles laid down by the Apex Court in (2008) 2 Supreme Court Cases, 672, Delhi Development Authority and another v/s. Joint Action Committee, Allottee of SFS Flats and others, wherein as regards, grounds for challenging the policy decision by way of judicial review, it has been observed in para 64 and 65 thus:

"An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not be correct to contend that the court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. Broadly, a policy decision is subject to judicial review on the following grounds: (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegatee has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy."