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Rajasthan High Court · body

2003 DIGILAW 1344 (RAJ)

Rajiv Choudhary v. State of Rajasthan

2003-09-19

H.R.PANWAR

body2003
Honble PANWAR, J.–The instant writ petition has been filed seeking directions to the respondent-authorities to fill-up the upgraded posts from amongst seniormost Assistant Engineer and restraining them to hold Departmental Promotion Committee to fill up these posts by applying reservation and roster policy with a further prayer that if during pendency of the writ petition any DPC is held and promotions are made to Scheduled Castes/Scheduled Tribes candidates against the upgraded posts, then the same may be quashed. (2). With the consent of the parties, the writ petition is finally heard at the orders stage. (3). The facts and circumstances giving rise to the instant petition are that after due selection through Rajasthan Public Service Commission, petitioners were appointed on the posts of Assistant Engineers and their names appeared at Serial Nos. 558, 554, 479 and 539, respectively, in the seniority list. The State Government has provided reservation in favour of SC/ST candidates for promotion to the tune of 16% and 12% respectively and 100- Point Roster System has been introduced to implement the reservation policy. In order to bring about equilibrium between the great financial stringency on the one hand and dire need of higher posts on the other, on being recommended by the Committee comprising of Secretaries of PHED, PWD and Irrigation Department, the State Government ultimately decided to abolish 101 newly created posts of Assistant Engineers vide impugned order Annex.2 dated 13-12-2002. Simultaneously, while abolishing 101 newly created posts of Assistant Engineer, the Government has upgraded 89 posts of Executive Engineers, eleven posts of Superintending Engineer and one post of Additional Chief Engineer. In continuation of the impugned order Annex.2 dated 13-12-2002, the Government has further issued the order Annex.3 dated 3-1-2003 detailing the posts to be abolished and created consequent to the impugned order Annex.2 dated 13-12-2002. In this way, according to the petitioner, no new post has come into existence but the posts which were already in existence, have been upgraded with a view that the upgradation should not fasten huge financial liability on the Government, which is further clear from the conditions mentioned in the impugned order Annex.2 dated 13-12- 2002 showing that no additional budget, staff or other facilities were provided for these posts. The further case of the petitioner is that since it is not a case of creation of the posts, these upgraded posts can be filled up by promoting the seniormost Assistant Engineers and no reservation and roster system can be applied to man these posts but the respondents are bent upon to apply reservation and roster system to fill up these posts. Hence this writ petition. (4). Refusing the averments made in the writ petition and taking preliminary objections regarding non-infringement of any legal right of the petitioners and availability of alternative remedy, respondent-State has filed a detailed reply. An Objection regarding maintainability of joint writ petition has also been raised. The crux of reply is that the reservation for SC/ST candidates is not only in case of direct recruitment but as per the Constitutional mandate, the same can also be made applicable in case of promotion. The promotions are required to be made in accordance with the Engineers (Irrigation Branch) Rules, 1954 and financial burden is of no consequence while applying constitutional imperative of reservation for SC/ST candidates. It has further been stated that as per the Rules, 1954, the posts of Executive Engineers can be filled up 100% by promotion after applying reservation which is a constitutional mandate. The Nodel Committee was constituted by the Government to mitigate the problem of stagnation in all category of engineers. Lastly, it has been stated that though minimum five years experience on the post of Assistant Engineer is required for promotion to the post of Executive Engineer but the Government is well within its competence to relax the same for SC/ST candidates. It has further been submitted that the total strength of Executive Engineers in the Irrigation Department is 296 and only two persons of reserved category are holding the posts of Executive Engineers and there is shortfall of 82 posts of SC/ST candidates in the cadre of Executive Engineer. Placing reliance on the Notification No. F.7(4) DOP/A-II/2002(32/02) dated 10-10-2002 issued by the State Government, by which rule 8 of the Rules, 1954 has been amended, whereby it has been provided that no vacancy reserved for SC/ST shall be filled by promotion as well as by direct recruitment from the general category candidates except in extraordinary circumstances and after following the due procedure, from occupying any post of reserved category. The Notification dated 10-10-2002 provides that the vacancies so reserved for SC/ST shall be carried forward until the suitable SC/ST candidates are available and it further provides that in any circumstances, no vacancy reserved for SC/ST candidates shall be filled by promotion as well as by direct recruitment from general category candidates. It has further been stated that the cadre of Executive Engineers has been enhanced from 207 to 296 and as such it is a clear cut case of creation of 89 additional posts in the cadre of Executive Engineers, 11 posts of Superintending Engineer and one post of Additional Chief Engineer and the said additional posts, being created permanently, are required to be filled up as per the amended provisions of the Rules, 1954. The further stand taken by the respondent-State is that as per the Rules, 1954, the posts of Executive Engineers, Superintending Engineer and the Additional Chief Engineer are only to be filled 100% by promotion and as such, as per the Constitutional mandate, the reservation is applicable. These 89 additional posts of Executive Engineers were created vide order dated 13-12-2002 as per the recommendations of the Nodal Committee constituted by the Government to mitigate the problem of stagnation in all categories of engineers. It is not only confined to the general category but the Nodal Committee considered overall problem and suggested that ratio between the Assistant Engineers to other higher posts should be enhanced and on that basis, the ratio of Assistant Engineer to other higher posts was enhanced as 70:30 instead of 80:20 and, therefore, as per the Nodal Committees recommendations, the Government has created 89 additional posts in the cadre of Executive Engineer, 11 posts of Superintending Engineer and one post of Additional Chief Engineer and, thus, the reservation is applicable as per the provisions of the Rules, 1954. (5). Respondent No. 4 Rajasthan Public Service Commission has also filed its reply stating that it has no role in determination of the vacancies. Private respondents No. 5 and 6 controverting the stand taken by the petitioners have filed an application under Article 226(3) of the Constitution of India for vacation of the interim order passed by this Court on 3-2-2003. Likewise, respondent No. 7 has also filed an application under Article 226(3) of the Constitution of India stating therein that they are members of scheduled caste. Likewise, respondent No. 7 has also filed an application under Article 226(3) of the Constitution of India stating therein that they are members of scheduled caste. It was further stated that the answering respondents, who belong to SC/ST categories, have been deprived of their right to be considered for promotion to the post of Executive Engineer against the newly created posts; in Irrigation Department, the backlog vacancies of reserved category in the cadre of Executive Engineer is 82 and presently the Executive Engineer of reserved category, i.e. SC/ST are holding only 2 posts in this cadre and as such they are entitled to be considered for promotion to the newly created posts of Executive Engineers on the basis of reservation and roster system. (6). Stressing the averments made in the writ petition, answering the preliminary objections and denying the averments made in the reply, petitioners have stated that upgradation cannot be treated at par with the creation of post and no reservation can be applied in case of upgradation of posts; stagnation in case of Assistant Engineers is writ large and the Nodal Committee has appreciated this fact but its report has not been placed on record; reservation to the upgraded post will further make the problem of stagnation bad to worse; upgradation was made vide order dated 13-12-2002 and as such upgradation is of the year 2002-2003 and relevant law existing on that day should have been applied; the zone of consideration has been extended for oblique purpose to uplift the SC/ST candidates who are much below in the seniority list; when experienced persons are available then there is no need to relax the minimum experience for the SC/ST candidates etc. etc. (7). I have heard learned counsel for the parties and perused the record of the case. (8). The nub of the arguments raised by the learned counsel for the petitioners is that it is a case of upgradation of the post and as such the reservation and roster system cannot be applied for giving benefit to the SC/ST candidate by relaxing the minimum experience of five years for It has further been contended that there is already stagnation faced by the persons like petitioners and this fact has been appreciated even by the Nodal Committee but ignoring its report, the State Government is bent upon to make the pinching situation of stagnation bad to worse. Lastly, it has been contended by the learned counsel for petitioners that Government cannot amend or substitute statutory rules by administrative instructions. (9). Per contra, the stand taken by the learned counsel appearing for the respondent State and private respondents is that it is not a case of upgradation of posts rather it is a case of creation of the posts and as such the reservation and roster system can well be applied which is otherwise too the mandate of the Constitution of India. It has further been contended that the State Government is well within its competence to relax the experience clause to pay regard to the Constitutional mandate of uplifting the candidates of reserved category. Further, stagnation is not qua the Assistant Engineers like the petitioners but this problem is being faced by the incumbents of so many posts. It has further been submitted by learned counsel for respondents that the concept of financial burden does not dilute the language of rights and, therefore, this does not give a lever to the petitioners to challenge the just interpretation of the rules and the same also does not come while applying constitutional imperative of reservation for SC/ST candidates. (10). Annex.2 dated 13-12-2002 is a letter sent by the Irrigation Department, Government of Rajasthan addressed to the Chief Engineer, Irrigation, Rajasthan, Jaipur. It starts with the subject. ``In connection with creation of posts It has been mentioned in this letter that His Excellency the Governor of the State has been pleased to up-grade certain posts by abolishing 101 newly created posts of Assistant Engineers in the Irrigation Department. By this order, after abolishing 101 newly created posts of Assistant Engineers, one post of Superintending Engineer (Civil) to the post of Additional Chief Engineer, 11 posts of Executive Engineers (Civil) to the post of Superintending Engineer and 89 posts of Assistant Engineers (Civil) to the post of Executive Engineers (Civil) have been increased. As a consequence thereof, the amended cadre strength of these posts have been increased and on abolishing 101 newly created posts of Assistant Engineers, the cadre strength of Assistant Engineer has been brought to 839 as against 940. These posts have been increased with the clear stipulation that no extra budget, staff, building etc. shall be provided for these upgraded posts and the annual expenditure on these upgraded posts shall not exceed Rs. 6.43 lacs. These posts have been increased with the clear stipulation that no extra budget, staff, building etc. shall be provided for these upgraded posts and the annual expenditure on these upgraded posts shall not exceed Rs. 6.43 lacs. Para 7 of this order Annex.2 specifically provides that in view of these upgraded posts, the newly created 101 posts of Assistant Engineers shall automatically stand abolished. (11). The pertinent question which arises for consideration is: whether it is a case of ``creation of posts or ``upgradation of posts. The word ``create, in legal terminology, means to bring into being; to invest with a new title or to produce. According to Collins Concise Dictionary, the word ``create means to cause to come into existence; to invest with a new honour, office, or title; appoint. According to Chambers Twentieth Century Dictionary, the word ``create means to bring into being or form out of nothing; to bring into being by force of imagination; to make, produce or form; to design; to invest with a new form, office or character; to institute; to be the first to act. On the other hand, the word ``upgrade, according to Collins Concise Dictionary, means: to assign or promote (a person or job) to higher professional rank or position; to raise in value, importance, esteem etc. As per Chambers Twentieth Century Dictionary, the word ``upgrade means an upword slope or course; to raise in status. (12). The contention of the learned counsel for the petitioners is that in view of the judgment of the Honble Supreme Court in Union of India vs. V.K. Sirothia (1), upgradation on account of restructuring of cadres does not attract reservation. In that case, the Honble Apex Court held as under:- ``The finding of the Tribunal that `so-called promotion as a result of redistribution of post is not promotion attracting reservation on the facts of the case, appears to be based on good reasoning. On facts, it is seen that it is a case of upgradation on account of restructuring of the cadres, therefore, the question of reservation will not arise. We do not find any ground to interfere with the order of the Tribunal. (13). From a plain reading of Annx.2, it appears that by this order, the State Government abolished 101 newly created posts of Assistant Engineers and upgraded certain posts by increasing the cadre strength thereof. We do not find any ground to interfere with the order of the Tribunal. (13). From a plain reading of Annx.2, it appears that by this order, the State Government abolished 101 newly created posts of Assistant Engineers and upgraded certain posts by increasing the cadre strength thereof. This exercise has been done keeping in view the financial contingencies and the problem of stagnation being faced by the employees. By Annx.2, after abolishing 101 newly created posts of Assistant Engineer, the cadre strength of the posts of Additional Chief Engineers, Superintending Engineers and Executive Engineers have been increased by 1, 11 and 89 posts. The said increase in the cadre strength of these posts could be possible only by creating the aforesaid additional posts of Additional Engineer, Superintending Engineers and Executive Engineers. The relevant portion of Annex.2 is reproduced herewith to make the position yet more clear:- Name of Posts Present sanctioned strength Amended Strength Difference Addl. Chief Engineers 9 10 + 1 Superintending Engineers 66 77 + 11 Executive Engineers 207 296 + 89 Assistant Engineers 940 839 - 101 (14). Thus, it is clear that by the order Annex.2, the cadre strength of the Assistant Engineers has been reduced from 940 to 839 posts by increasing the cadre strength of the posts of Additional Chief Engineers, Superintending Engineers and Executive Engineers. The enhancement of these cadre posts was possible only be creating new posts, though without providing additional budget for these increased posts. Annx.3 dated 3-1- 2003 shows the details of such posts. Thus, I find no force in the submission made by the learned counsel for the petitioners that since the posts of Assistant Engineers have been upgraded, the reservation and roster system cannot be applied. It is not only the case of upgradation of the posts of Assistant Engineers but, in fact, creation of posts of Additional Chief Engineer, Superintending Engineers and Executive Engineers by abolishing 101 newly created posts of Assistant Engineers on the recommendation of the duly constituted Committee and the assent of His Excellency the Governor of the State. (15). In All India Non-SC/ST Employees Association (Railway) vs. V.K. Agarwal & Ors. (2), the Honble Apex Court clarified that if as a result of reclassification and re-adjustment having been effected any post is created, then the principle of reservation would be applicable. (16). (15). In All India Non-SC/ST Employees Association (Railway) vs. V.K. Agarwal & Ors. (2), the Honble Apex Court clarified that if as a result of reclassification and re-adjustment having been effected any post is created, then the principle of reservation would be applicable. (16). In K. Manickaraj vs. Union of India (3), there was upgradation of some persons from Grade III to Grade II and on upgradation, cadre strength of Grade II was increased from 23 to 26, however, promotion by reservation was denied to the members of scheduled caste. It was the case of appellant, who was member of scheduled caste that three posts from Grade III having been upgraded to, Grade II, the total number of posts available in Grade II is 26 as against original number of 23 and since there is a reservation of 15% for scheduled caste, the total number of posts available for scheduled caste in Grade II would work out at 4 but factually only 3 persons belonging to scheduled caste are working in Grade II and, therefore, the appellant was entitled to promotion to Grade II. The respondent therein contended that those upgraded posts cannot be taken into account for determining the number of posts available for reserved category and cannot be taken into account for computation of 15% reservation in the said Grade II. The Honble Supreme Court did not accept the contention of the respondent and held that the cadre strength of Grade II have become 26 and not 23 and if 15% of the cadre is meant for reserved category people then it would work out at 4 and on these premises the Apex Court held the appellant therein entitled to be promoted against 15% reserved quota. Apex Court held as under:- ``Tribunal was in error in not taking into account the upgraded posts which have been upgraded from Grade III to Grade II on the ground that it was meant for sports personnel. While computing the number of post available for reserved category, there is no justification to exclude the upgraded post which had continued from 1988 till date. (17). It has next been contended by the learned counsel for the petitioners that the Government cannot amend or substitute statutory rules by administrative instructions. A perusal of Annx.2 makes it clear that it has been passed with the assent of His Excellency the Governor of the State. (17). It has next been contended by the learned counsel for the petitioners that the Government cannot amend or substitute statutory rules by administrative instructions. A perusal of Annx.2 makes it clear that it has been passed with the assent of His Excellency the Governor of the State. On account of financial exigencies, the Government constituted a Committee and on the recommendation of the Committee, His Excellency the Governor of the State, while exercising power conferred upon him under Article 213 of the Constitution, passed an ordinance and consequently, the Irrigation Department of the State Government issued the order Annx.2 on 13-12-2002. (18). In Union of India & Ors. vs. Rakesh Kumar (4), the Honble Supreme Court held as under:- ``The Government cannot amend or substitute statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent with the rules. The Government can also confer certain benefits on its employees by an administrative order. (19). It has next been contended by the learned counsel for the petitioners that the petitioners are working on the post of Assistant Engineers and they are facing the menace of stagnation but the respondents, in the garb of financial exigencies, want to provide benefit to the members of Scheduled Castes/Scheduled Tribes by applying the reservation and roster system treating these posts as the newly created posts. It has further been contended that no reservation and roster system can be applied for filling up the promotional posts by relaxing the existing rules. (20). The contention raised by the learned counsel for the petitioners seems to be attractive but actually it is hollo in substance. As discussed above, vide order Annx.2 and the consequential order Annx.3, the State Government has abolished 101 posts of Assistant Engineers by increasing the cadre strength of certain posts, meaning thereby that certain posts have been created on higher padestral. Those posts can be filled up by promoting the eligible persons. As discussed above, vide order Annx.2 and the consequential order Annx.3, the State Government has abolished 101 posts of Assistant Engineers by increasing the cadre strength of certain posts, meaning thereby that certain posts have been created on higher padestral. Those posts can be filled up by promoting the eligible persons. Article 16 (4A) of the Constitution of India provides that nothing in this article shall prevent the State from making any provision for reservation in the matter of promotion, with consequential seniority, to any class or classes of posts in the service under the State in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented in the service under the State. Thus, even if the State Government intends to relax the rules for providing promotion to the members of scheduled castes and scheduled tribes, there action cannot be challenged merely on the ground of problem of stagnation. The seniority and merit of the petitioners cannot come in the way of policy decision and the Constitutional mandate enshrined under Article 16 (4A). (21). In Ashok Kumar Gupta & Ors. vs. State of U.P. & Ors. (5), the Three Judges Bench of the Honble Supreme Court observed that ordinarily right to promotion is a statutory and not a fundamental right; however, Articles 16(4A) and (1) and 14 read together guarantee the members of SC/ST a fundamental right to promotion where they do not have adequate representation, constently with the efficiency of administration. The Apex Court further observed that every citizen or group of people has a right to a share in the governance of the State. The Scheduled Castes and Scheduled Tribes equally being citizens have a right to a share in the governance of the State. The Apex Court further held as under:- ``Equality of status and dignity of the individual will be secured when the employees belonging to SCs and STs are given an opportunity of appointment by promotion in higher echelons of service so that they will have opportunity to strive towards excellence individually and collectively with other employees in improving the efficiency of administration. Equally they get the opportunity to improve their efficiency and opportunity to hold offices of responsibility at hierarchical levels. . . . . . Equally they get the opportunity to improve their efficiency and opportunity to hold offices of responsibility at hierarchical levels. . . . . . Unless one is given opportunity and facility by promotion to hold an office or a post with responsibilities, there would be no opportunity to prove efficiency in the performance or discharge of duties. (22). The Honble Supreme Court, in Ashok Kumar Guptas case (supra) further observed that those who are unequals cannot be treated by identical standard and the State must, therefore, resort to protective discrimination for the purpose of making people, who are factually unequal, equal in specific area. It would, therefore, be necessary to take into account de facto inequality which exists in the society and to take affirmative action by giving preference and making reservation in promotions in favour of the SC/ST candidates or by ``inflicting handicaps on those more advantageously placed, in order to bring about equality. Such affirmative action, though apparently discriminatory, is calculated to produce equality on a broader basis by eliminating de facto inequality and placing the members of SC/ST on the footing of equality with non-tribal employees so as to enable them to enjoy equal opportunity and to unfold their full potentiality. The Apex Court further observed that protective discrimination envisaged in Articles 14 (4) and 16 (4- A) of the Constitution of India is the armour to establish the said equilibrium between equality in law and equality in result as a fact to the disadvantaged and the principle of reservation in promotion provides equality in results. The Apex Court further held that in adjusting the competing rights of the SC/ST on the one hand and the employees belonging to the general category on the other hand, the balance is required to be struck by applying the eqalitarian protective discrimination in favour of the SC/ST to give effect to the constitutional goals, policy and objective. (23). The facts of the instant case are almost identical to that of the case of Manickarajs case (supra). This judgment has been rendered by the Honble Supreme Court prior to the judgment in V.K. Sirothias case (supra), and it appears that it was not brought to the kind notice of the Honble Apex Court in V.K. Sirothias case. (24). (23). The facts of the instant case are almost identical to that of the case of Manickarajs case (supra). This judgment has been rendered by the Honble Supreme Court prior to the judgment in V.K. Sirothias case (supra), and it appears that it was not brought to the kind notice of the Honble Apex Court in V.K. Sirothias case. (24). In view of the above, the judgment of the Honble Supreme Court in V.K. Sirothias case (supra), relied by the learned counsel for the petitioners does not come to the rescue of the petitioners for the reasons; firstly, that the instant is not a case of ``upgradation on account of restructuring of cadre but it is a clear case of ``creation of posts in higher cadres after abolishing the newly created 101 posts of Assistant Engineers and it is not only a case of creation of posts of Executive Engineers only, but also creating the posts of Superintending Engineers and one post of Additional Chief Engineer. Secondly, the decisions in K. Maniekarais case (supra), and in V.K. Sirothias case (supra) are of Two Judges Bench and decision in K. Maniekarais case (supra), is earlier and is on identical facts. The judgment in Ashok Kumar Guptas case (supra) is of Three Judges Bench of the Honble Supreme Court and as such, in view of the provisions of Article 141 of the Constitution of India, the decision in Ashok Kumar Guptas case (supra), has to be followed. I am fortified with my view by the judgment of the Honble Supreme Court in Jawahar Lal Sazawal & Ors. vs. State of J&K & Ors. (6). In this case, the Apex Court observed that in the absence of some distinguishing feature, an earlier decision of a Division Bench which had remained unchallenged, was binding on a subsequent Division Bench and ought to be followed. Apex Court further held as under:- ``The impugned decision directly conflicts with the earlier decision of the same High Court in Ghulam Qadir case on the issue as to the status of government employees like the appellant. The decision in Ghulam Qadir has remained unchallenged by the respondent State till today and was binding on the Court. In the absence of some distinguishing feature it should have been followed. It was not even referred to. The decision in Ghulam Qadir has remained unchallenged by the respondent State till today and was binding on the Court. In the absence of some distinguishing feature it should have been followed. It was not even referred to. We could have allowed the appeal before us on this short ground, but since the issue raised affects a large number of employees, it is necessary to decide the issue on merits. (25). In State of U.P. & Anr. vs. Synthetics and Chemicals Ltd. & Anr. (7), the Honble Supreme Court held that restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. The Apex Court further observed that another exception to the rule of precedents is rule of sub-silentio and a decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present in its mind. The Apex Court further held as under:- ``A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. Any declaration or conclusion arrived without application of mind or preceeded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. (26). In this view of the matter, if the respondents intend to extend the benefit of reservation and roster system to the members of scheduled caste/scheduled tribes even by relaxing the rules, their competence cannot be challenged. It is not the case of the petitioners that all the posts in question are going to be filled up by providing appointment/promotion to the members of scheduled castes/scheduled tribes. As such, the respondents are expected to consider the case of the persons like the petitioners vis-a-vis the members of the scheduled caste/scheduled tribes. (27). It is not the case of the petitioners that all the posts in question are going to be filled up by providing appointment/promotion to the members of scheduled castes/scheduled tribes. As such, the respondents are expected to consider the case of the persons like the petitioners vis-a-vis the members of the scheduled caste/scheduled tribes. (27). So far as the contention of the petitioners that the petitioners are senior persons having more experience yet they are facing the problem of stagnation and this fact has been considered by the Nodel Committee but its recommendation has not been paid need. The seniority and the experience of the petitioners may be to their credit and they may be benefited for that if they come within the zone of consideration for promotion. Extending the zone of promotion by relaxing the rules and granting promotion to the members of scheduled castes/schedules tribes on the basis of reservation policy may minimise the chances of their promotion but this cannot be a ground to challenge the action of the respondents, particularly when it is a policy decision taken as per the mandate of the Constitution of India and is, thus, regulated by norms legitimately set down by the Government. So far as not accepting the recommendation of the Nodel Committee regarding stagnation of the persons like the petitioners is concerned, the State is not bound to abide by the recommendation as a whole and can separate the grain from the chaff. (28). In view of the aforesaid, I do not find any merit in this writ petition. Accordingly, the same is dismissed. There shall be no order as to costs. Ex-parte ad interim stay order dated 3-2- 2003 is hereby vacated. Stay petition stands dismissed.