Bombay High Court
Shri Nilkanth Gulabrao Nihul & ... vs State Of Maharashtra & 2 Others on 14 June, 2016
Bench: B.P. Dharmadhikari
Judgment. wp2286.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2286 OF 2003.
1. Shri Nilkanth s/o Gulabrao Nihul,
Aged 46 years, Occupation - Service,
Resident of 171, Empress Mill Cooperative
Housing Society, Shrinagar,
Nagpur.
2. Shri Pradeep Madhusudan Patil,
Aged 45 years, Occupation -
Service, resident of 303, Subhalaxmi
Niwas, Dhantoli, Nagpur. ..... PETITIONERS.
VERSUS
1. State of Maharashtra,
through Secretary to Department
of Environment, Mantralaya,
Mumbai.
2. Maharashtra Pollution Control Board,
through its Member Secretary,
3rd and 4th Floor, Kalpataru Point,
Sion Matunga Scheme Road No.8,
in front of Sion Circle, Sion East,
Mumbai - 400022.
::: Uploaded on - 20/06/2016 ::: Downloaded on - 20/06/2016 23:57:29 :::
Judgment. wp2286.03
2
3. Maharashtra Pollution Control Board,
through its Administrative Officer,
3rd and 4th Floor, Kalpataru Point,
Sion Matunga Scheme Road No.8,
in front of Sion Circle, Sion East,
Mumbai - 400022.
4. Vidyanand s/o Motiram Motghare,
Aged about 39 years, Occupation
Service, resident of 377-B, H.B. Estate,
Sonegaon, Khamla Road,
Nagpur.
5. Mr. Pundlik Kisan Mirashe,
Occupation - Service, resident of
Flat No.7, Wing B, Krishna Residency,
P & T colony, Trimbak Road,
Nashik 422 007.
6. Dr. Yashwant s/o Babarao Sontakke,
Aged 41 years, Occupation
Service, resident of 9, Namrata
Enclave, Karve Nagar,
Pune 411 052. ..... RESPONDENTS.
--------------------------
Shri A.D. Mohgaonkar, Advocate for the Petitioner.
Shri A.S. Fulzele, Addl. Govt. Pleader for Respondent No.1.
Shri S.S. Sanyal, Advocate for Respondent Nos.2 & 3.
Shri M.G. Bhangde, Senior Advocate with Shri R.M. Bhangde,
Advocate for Respondent No.4.
Shri M.M. Sudame, Advocate for Respondent No.5.
--------------------------
Judgment. wp2286.03
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN
,
J J.
DATE : JUNE 13/14, 2016.
ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)
Heard learned Counsel for the parties.
2. By this petition filed under Article 226 of the
Constitution of India, two petitioners question the
advertisement dated 06.06.2002, issued by respondent no.2 -
Maharashtra Pollution Control Board for filling in three posts
directly in the cadre of Regional Officer. Submission is, service
regulations i.e. Maharashtra Pollution Control Board Employees
Recruitment Regulations, 1996 (hereinafter referred to as "the
1996 Service Regulations" for short), mandated filling of 50%
of vacancies only by direct recruitment, while remaining
needed to be filled in by promotion. There are two petitioners
on record. It is not in dispute that petitioner no.2 is now no
more, and his legal heirs are not brought on record. Shri
Judgment. wp2286.03
Mohgaonkar, learned counsel expressly mentions that petition
is being pressed only on behalf of petitioner no.1.
3. The Service Regulations mentioned supra, vide its
clause No.1[b] stipulates that they came into force from the
date of approval from the State Government. Earlier service
regulations were of the year 1977, and as per stipulation
therein, the post of Regional Officer needed to be filled in by
promotion, from the cadre of Sub-Regional Officers. Fact that
the petitioner worked in that cadre and was therefore, entitled
to be considered for such promotion is not in dispute.
4. This Court has on 09.07.2003, permitted
recruitment in furtherance of advertisement dated 06.06.2003
to go on, but, expressly directed that the appointments should
be subject to result of present Writ Petition. Respondent no.2
was obliged to communicate this condition to the selected
candidates. Respondent nos. 4 to 6 before this Court are the
persons selected and appointed as Regional Officers.
Judgment. wp2286.03
5. After hearing Shri Mohgaonkar, learned Counsel for
petitioner, Shri Sanyal, learned Counsel for respondent no.2 -
Board, Shri M.G. Bhangde, learned Senior Counsel with Shri
R.M. Bhangde, learned Counsel for respondent no.4, Shri M.M.
Sudame, learned Counsel for respondent no.5 and Shri A.S.
Fulzele, learned Addl. Government Pleader for respondent no.1
State, we find that short question to be looked into is the
meaning of expression "vacancies" used in Regulation No.4[c]
of the 1996 Service Regulations. The said Regulations reads as
under :
"4. Appointment to the post of Regional
officer/Air Pollution Control Officer/Air
Pollution Abatement Automobile
Combustion Controlling Engineer/Micro
Meteorological Officer (Grade-A) in the
pay scale of Rs.3000-100-3500-125-4500
shall be made either -
[a] By promotion of a suitable
person on the basis of 'Strict Selection'
Judgment. wp2286.03
from amongst person holding the post of
Sub Regional Officer subject to
following :-
(1) Candidate should have
a minimum 6 years regular service
in that post and shall possess a
Degree in Engineering or its
equivalent.
OR
(2) 6 years service as Sub-
Regional Officer possessing Post
Graduate Degree in Science/ Post
Graduate Diploma in
Environmental Science.
OR
(3) 10 years service as Sub
Regional Officer possession
Diploma in in Engineering or its
equivalent.
OR
(4) 10 years service as Sub-
Regional Officer with Degree in
Science.
OR
(b) by nomination, from amongst
Judgment. wp2286.03
candidates who -
(1) unless already in
service of Board/Government
should not be more than 40 years
of age; and
(2) possess a Post Graduate
Degree in Engineering or its
equivalent from a recognized
University/ Institution;
OR
Doctorate in Science
with Environmental Science as
special subject in Post Graduation;
(3) possess not less than 5
years experience after acquiring
educational qualification
mentioned in sub clause [2] of
clause [b] of this rule.
(c) The posts to be filled in by
nomination shall not exceed 50% of the
total number of vacancies."
6. Respondents rely upon language employed in Clause
Judgment. wp2286.03
4[c] and a judgment delivered by the Hon'ble Supreme Court
reported at (1995) 2 SCC 745 (R.K. Sabharwal and others
.vrs. State of Punjab and others), to urge that while
computing 50% number of vacancies, total number of posts in
the cadre i.e. cadre strength must be looked into. Hence, when
number of promotees in the cadre of Regional Officer was in
excess of 50% of the cadre strength, all three vacancies have
been rightly advertised for direct recruits.
7. Shri Mohgaonkar, learned Counsel by placing
reliance upon very same judgment delivered by the Hon'ble
Supreme Court in case of R.K. Sabharwal and others .vrs. State
of Punjab and others (supra), and submits that the vacancies
available for filing in cannot be confused with number of posts
which always signify total cadre strength. He contends that
when in 2003, there were only three vacancies, not more than
50% of said vacancies could have been filled in by nomination,
hence, the advertisement to fill in three posts by direct
recruitment is beyond the powers of respondent no.2 and
Judgment. wp2286.03
unsustainable. According to respondents, "vacancies"
contemplated in Rule 4[c] is nothing but, total cadre strength.
14.06.2016.
8. In this situation, we find it appropriate to first
consider the Constitution Bench judgment of the Hon'ble Apex
Court in the case of R.K. Sabharwal & Ors. vs. State of Punjab &
Ors.,(supra). There, the question gone into is how posts need
to be reserved for Backward Tribe. The Hon'ble Apex Court has
found that it can be worked out only with reference to total
strength of cadre. Number of vacancies becoming available for
filling in at any particular point of time cannot be a decisive
norm to apply the reservation. This has been explained by the
Hon'ble Apex Court by taking a hypothetical illustration and
with reference to roster point. The overriding constitutional
mandate of achieving the prescribed percentage of reservation
in a cadre is the undercurrent flowing in the discussion. It is
apparent that the said consideration, therefore, has got no
bearing in present matter where the rule specifically speaks of
Judgment. wp2286.03
total number of vacancies.
9. 1996 Service Regulations have come into force and
a change in manner of recruitment insofar as cadre of the
Regional Officers is concerned, is envisaged therein. Till then,
1977 Regulations were in force. As per 1977 Regulations, the
posts of the Regional Officer needed to be filled in by
promotion. Only if suitable candidate was not available in next
below cadre, nomination was permitted. The scheme
therefore, does not support forthwith change in the cadre
structure of Regional Officer.
10. This position was sought to be altered in 1996. The
1996 Service Regulations are already quoted by us above. As
per clause 4(a), the Regional Officer is to be selected by
promotion of a suitable person on the basis of 'Strict Selection'.
As per clause (b) nomination is also permitted. Clause (c) is
important clause and it stipulates that the posts to be filled in
by nomination cannot exceed 50% of the total number of
Judgment. wp2286.03
vacancies. The language of this clause is sufficient to show that
"posts" as envisaged therein are bound to be less in number
than total number of "vacancies". This language, therefore,
militates with contention of the respondents that posts
available for nomination while filling in the vacancies cannot
exceed the total number of posts available in the cadre.
The vacancies available at any point of time cannot
exceed the total strength of cadre and hence explanation
tendered by Respondent No. 2 - Board that as in existing cadre
promotees were more in number, it was essential to take
recourse to direct recruitment, is unacceptable. Such an effort
is not allowed even by language of Rule 4 of 1996 Service
Regulations. Rule 4 permits filling in the posts of the Regional
Officers by promotion as also by nomination subject to rider
that posts to be filled in by nomination on any particular
occasion, cannot exceed 50% of total number of vacancies.
Thus, a gradual introduction of direct recruits in the cadre is
envisaged by this Rule 4. Under 1997 Regulation, recruitment
Judgment. wp2286.03
was an exception while promotion was a general rule. This
Scheme is only altered by paving way for recruitment.
11. Shri Sanyal, learned counsel for respondent Nos. 2
& 3 has invited our attention to Regulation 42 to urge that it
gives overriding powers to the management and hence in such
a situation for valid reasons, in order to provide effective
representation to direct recruits, the mandate of Rule 4(c) can
be ignored. Regulation or Rule 42 no doubt begins with the
word "notwithstanding", but, that does not mean that an action
contrary to Scheme of Rule 4 can be undertaken. The non-
obstante clause confers discretion which can be exercised only
for valid reasons. Once we find that a gradual change in
composition of cadre is envisaged by Rule 4 itself, defence
taken by Respondent No. 2 becomes unsustainable. Regulation
No.4 does not stipulate that 50% of the posts in the cadre of
Regional Officer are to be filled in by direct recruitment. All of
a sudden, such an alteration cannot be introduced by exercising
discretion under Regulation/ Rule 42.
Judgment. wp2286.03
12. In this situation, we find that advertisement dated
06.06.2002 for filing in three posts of the Regional Officer by
direct recruitment is unsustainable. Respondent No. 2 has not
come up with a case that in 2002 there were six vacancies in
the cadre of the Regional Officer and, therefore, 50% only were
advertised for direct recruitment. We, therefore, find the
petitioner correct in submitting that three vacancies could not
have been filled in by direct recruitment.
13. However, petitioner No. 1 has already reached the
age of superannuation and is no longer in service. In this
situation, no purpose will be served by disturbing the
employment provided to Respondent Nos. 4, 5 & 6. The
petitioner has been promoted in 2011 and retired as the
Regional Officer. It is not very clear whether the case of the
petitioner for promotion was considered in terms of Clause [B]
of the minutes of order dated 06.12.2006. We reproduce the
said Clause for ready reference.
Judgment. wp2286.03
"B) As the selection of other two
departmental candidates by nomination stands
cancelled, in the resultant 2 vacancies, the
respondent shall consider the petitioners for
promotion from the date on which nominated
candidate had joined as Regional Officer, along
with others as per their own merit and
seniority as and when a Departmental
Promotion Committee is constituted by the
respondent Board for the said purpose."
14. In view of directions contained in this order and in
prevailing situation, we find that interest of justice can be met
with by directing Respondent No. 2 to implement those
directions within a period of four months from today. Thus,
the entitlement of the petitioner to be promoted as the
Regional Officer on 06.06.2002 shall be evaluated within a
period of four months from today. If the petitioner is found fit
for promotion, he shall be given that date as deemed date of
promotion as Regional Officer.
Judgment. wp2286.03
15. Writ Petition is thus partly allowed by making rule
absolute. However, in the facts and circumstances of the case,
there shall be no order as to costs.
JUDGE JUDGE
Rgd/GS.
