Bombay High Court
Mohammad Fahim S/O Mohammad Bashid vs The State Of Maha. Thr. The Chief Sec. ... on 18 September, 2025
Author: Anil S. Kilor
Bench: Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 4075 OF 2024
Mohammad Fahim s/o Mohammad Bashid,
Aged about 58 years, Occ. Business,
R/o. Amar Villa, Near Mount Convent,
Shivaji Nagar, Chandrapur ......PETITIONER
...V E R S U S...
1. The State of Maharashtra,
through the Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai - 32
2. The Principal Secretary,
Industries, Energy, Labour and Mining
Department, Government of
Maharashtra, Mantralaya, Mumbai - 32
3. The Directorate of Geology and
Mining, State of Maharashtra
having office at Nagpur,
through its Director
4. Shri Tanugula R. Kishan Rao,
Age : Major, Occ. Service,
C/o. Directorate of Geology and
Mining, Nagpur .....RESPONDENTS
----------------------------------------------------------------------------------------------------
Mr. Firdos Mirza, Senior Advocate a/b Ms. Isha Thakre & Mr. Shad
Mirza, Advocate for the petitioner.
Mr. Ravi Kadam, Senior Advocate a/b Mr. H.D. Marathe, AGP for
respondent/State.
CORAM:- ANIL S. KILOR, &
RAJNISH R. VYAS, JJ.
Belkhede, PS
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CLOSED ON : 10.09.2025
PRONOUNCED ON : 18.09.2025
JUDGMENT (Rajnish R. Vyas)
This petition prays for issuance of writ of quo warranto as
according to the petitioner, the respondent 4 was having no authority to
occupy the post of Director General of Geology and Mining. Other
cosequent prayers are also made.
2. Heard Mr. Firdos Mirza, learned Senior Counsel along with Ms. Isha
Thakre and Mr. Shad Mirza. On behalf of respondent/State, we have
heard Mr. Ravi Kadam along with learned AGP Mr. H.D. Marathe. With
consent of the parties petition is decided at the admission stage.
3. According to the petitioner, the post of Director General of
Geology and Mining was never in existence and it was for the first time
by GR dated 21.09.2023, the said post was created. In pursuance with
the GR, respondent 4 was appointed by Notification dated 12.12.2023.
The said appointment is only for a period of three years and therefore, it
cannot be said that it is the permanent post.
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4. He further contended that presently the post of Directorate
of Geology and Mining of Government of Maharashtra is already filled
and held by the officer concerned in accordance with Rule 3(C) of the
Rules of 1987 which can be filled in either by promotion or nomination.
5. He has further brought our attention to Notification dated
21.12.2021 and contended that staffing pattern, if perused, it would
reveal that there is no rule to govern the post of Director General of
Geology and Mining. It was informed by the Department of Labour,
Industrial Energy, to him that the service rules pertaining to duties and
responsibilities of Director General are not available in the said office. It
is contended that respondent authorities cannot first create the post and
thereafter amend the rules.
6. It is further contented that the appointment can also be said
to be illegal in view of noting made by the General Administrative
Department (GAD).
7. Mr. Mirza, learned Senior Counsel has contended that the
respondent No. 4 has not submitted experience certificate and not
submitted the evidence in proof of adequate knowledge of Marathi as
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per conditions of advertisement and thus respondent No. 4 cannot be
allowed to hold and continue the post .
8. He further relied upon Rule 9(40) of Maharashtra Civil
Services (General Conditions of Services) Rules 1981 ("for short, the
Rules of 1981")and pointed out that under the said rules, permanent
post means a post carrying definite rate of pay 'sanctioned without limit
of time'. It was also contended by Mr. Mirza that according to the Rules
of 1981, more particularly, rule 9(22) heads of departments is defined as
a term which includes the officers mentioned in Appendix II and any
others whom Government may from time to time declare to be Heads of
Departments. He also brought our attention to Appendix (II) of the Rules
of 1981 and stated that it would be Director, Geology and Mining,
Nagpur who would be Head of Department and therefore, now by
crating the post of Director General, entire rules are tried to be changed,
that too by proposed amendment. In order to support the case of
petitioner, Mr. Mirza, learned Senior Counsel relied upon judgment
reported in case of Mor Modern Cooperative Transport Society Ltd Vs.
Financial Commissioner and Secretary to Govt. of Harayana and
another, reported in 2002(6)SCC 269.
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9. Per contra, Mr. Kadam, learned Senior Counsel assisted by
learned AGP Mr. H.D. Marathe has argued that the writ petition is liable
to be dismissed as the appointment made is based upon the proper
procedure adopted. He also contended that since there was exigency to
create the post and taking recourse to Article 309 of the Constitution,
the appointment was made.
We have given careful thought to the arguments advanced by
both the parties. We have also perused the record of case and the
judgments cited at the bar by the respective parties. The manner in
which post was created and filled would be clear from following
observations.
10. It is seen from record that the State Government had created
regular post of Director General which is of the rank of Secretary
through Cabinet approval. On 21.6.2023, respondent No. 1 issued
direction to create a regular post of Director General in Geology and
Mining department. The need for creation of post, was significant
changes in the mining sector with series of reforms undertaken by
Central Government through various acts, so also, various policies and
guidelines to improve the mining sector and to keep pace with new
changes thus decision was taken on 27.7.2023 by the Government.
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11. Accordingly, proposal was made to appoint an officer with
extensive knowledge and expertise in mining. It was also decided by the
State that administrative responsibilities of the said position would fall
under Additional Chief Secretary, Ministry of Industries, Energy, Labour
and Mining.
12. It was also proposed to secure approval for the expenses
related to this post and to amend the recruitment rules, accordingly.
Upon due scrutiny by various departments and approval, a note was
presented to the Cabinet for final approval and thereafter, in Cabinet
meeting held on 27.07.2023, a sanction was accorded.
13. Thus, the Chief Secretary of Government of Maharashtra had
approved the creation of regular post of Director General. Not only this,
it was emphasized that the Finance and General Administrative
Department should provide their remarks for the proposal before it was
presented to the Cabinet. On 30.08.2023, another note sheet was
prepared stating that Cabinet had approved the creation of post which
was presented before High Level Committee to obtain approval for filling
the post of the Director General.
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14. On 30.08.2023, under the Chairmanship of Chief Secretary,
approval for the post was granted and in order to give the effect
proposed amendment to the Recruitment Rules were outlined in clause
(i) to (iv) (page 66 of affidavit in reply).
15. It reveals from record that to facilitate the selection process
for the post of Director General, a selection committee was constituted
by GR of Government of Maharashtra dated 3.10.2023 which was
consisting of following members:i) Chief Secretary, Government of
Maharashtra as a President;ii) Additional Chief Secretary, GAD as a
Member;iii) Additional Chief Secretary (Finance) - Member;iv)
Additional Chief Secretary (Mining Department), Member Secretary; v)
Expert technical from the mining sector - Member.
16. A Screening Committee was also constituted by aforesaid GR
to scrutinize the applications and shortlist the candidates and outside
expert from the mining sector was also made member to scrutinize the
application in the best manner. A Screening Committee of responsible
government officers was formed which consisted of (i) Director,
Directorate of Geology and Mining as President, (ii) Joint/Deputy
Director, Directorate of Geology and Mining - Member and (iii)Technical
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qualified person in mining area as member. Further an advertisement
dated 25.09.2023 was published by the Joint Secretary (Mining)
Government of Maharashtra in pursuance of which twelve applications
were received by the Joint Secretary, Ministry of Energy, Labour and
Mining.
17. If page 93 is seen, it would be clear that applicant along with
others was considered in order to give due weightage to the experience
and suitability for appointment on the post and accordingly a detailed
chart was prepared showing eligibility/non eligibility of all the
candidates. We have perused the said chart more particularly entry at
serial 9 at page 95 where the name of respondent No. 4 appears, who
was found eligible by the Committee.
18. It is also necessary to consider the import of Article 309 of the
Constitution of India, which speaks about recruitment and conditions of
Service of person serving the Union or the State. Under the same it shall
be competent for the State to make rules regulating the recruitment, and
the condition of services of persons appointed, to such services and posts
until provision in that behalf is made by under the Act of appropriate
Legislature under this Article. Reliance can be placed to the law laid
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down by the Hon'ble Apex Court in case of Sant Ram Sharma Vs. State
of Rajasthan and Ors reported in AIR 1967 SC 1910 and also B.N.
Nagrajan Vs. State of Mysore reported in AIR 1964 SC 1942.
19. In Sant Ram Sharma's case, reference has been made to B.N.
Nagrajan in paragraph 8, which reads thus:
"8. In B. N. Nagaraja'n v. State of Mysore, it was pointed
out by this Court that it is not obligatory under the proviso
to Art. 309 of the Constitution to make rules of recruitment,
etc., before a service can be constituted or a post created
or filled, and, secondly, the State Government has
executive power, in relation to all matters with respect to
which the Legislature of the State has power, to make
laws. ..................A similar view was taken by this Court
in T. Cajee v. U. Jormanik Siem where Wanchoo, J., as he then
was, who delivered judgment on behalf of the majority,
observed as follows at pp. 762-764 of the Report:
"The High Court has taken the view that the
appointment and succession of a Siem was not an
administrative function of the District Council could only
act by making a law with the assent of the Governor so far
as the appointment and removal of a Siem was concerned.
In this connection, the High Court relied on para. 3(1)(g)
of the Schedule, which lays down that the District Council
shall have the power to make laws with respect to the
appointment and succession of Chiefs and Headmen.
The High Court seems to be of the view that
until such a law is made there could be no power to make
laws with respect to the appointment of a Chief and
Headman. The High Court seems to be of the view that
until such a law is made there could be no power of
appointment of a Chief or Siem like the rekspondent and
in consequence there would be no power of removal
either. With respect, it seems to us that the High Court
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has read far more into para 3(1)(g) than is justified by its
language. Paragraph 3(1) is in fact something like a
legislative list and enumerates the subjects on which the
District Council is competent to make laws. Under para.
3(1)(g) it has power to make laws with respect to the
appointment or succession of Chiefs or Headmen and this
would naturally include the power to remove them. But it
does not follow from this that the appointment or removal
of a Chief is a legislative act or that no appointment or
removal can be made without there being first a law to
that effect..... Further once the power of appointment falls
within the power of administration of the district the
power of removal of officers and others so appointed
would necessarily follow as a corollary. The Constitution
could not have intended that all administration in the
autonomous districts should come to a stop till the
Governor made regulations under para. 19(1)(b) or till
the District Council passed laws under para. 3(1)(g). The
Governor in the first instance and the District Councils
thereafter were vested with the power to carry on the
administration and that in our opinion included the power
to appoint and remove the personnel for carrying on the
administration. Doubtless when regulations are made
under para. 19(1)(b) or laws are passed under para. 3(1)
with respect to the appointment or removal of the
personnel of the administration, the administrative
authorities would be bound to follow the regulations so
made or the laws so passed. But from this it does not
follow that till the regulations were made or the laws were
passed, there could be no appointment or dismissal of the
personnel of the administration. In our opinion, the
authorities concerned would at all relevant times have the
power to appoint or remove administrative personnel
under the general power of administration vested in them
by the Sixth Schedule. The view therefore taken by the
High Court that there could be no appointment or removal
by the District Council without a law having been first
passed in that behalf under para. 3(1)(g) cannot be
sustained.
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20. In B.N. Nagrajan Vs. State of Mysore , it was pointed out by
this Court that it is not obligatory under the proviso to Article 309 of the
Constitution to make rules of recruitment, etc., before a post created or
filled, and, secondly, the State Government has executive power, in
relation to all matters with respect to which the Legislature of the State
has power, to make laws......
In view of the law laid down by the Hon'ble Apex Court in the
aforesaid two judgments, Government has exercised the executive
power, created the post and have proposed amendment for making rules.
21. Thus, the Rules of 1981 will have to be considered and
looked into in the light of proviso to Article 309 of the Constitution of
India and law laid down in the aforesaid judgments. Reference can also
be made to judgment in case of C. Rangaswamaiah and Ors Vs.
Karnataka Lokayukta and Ors report in (1998)6 SCC 66 wherein the
Hon'ble Apex Court has answered the questions which were formulated
in paragraph 11, which reads thus:
"11. The following points arise for consideration:
(1) Was it permissible for the State Government to create the
post of Director General of Police, Lokayukta by way of an
administrative order of 21.12.1992 though the said post was
not included in the relevant rules of recruitment of the staff of
the LokAyukta? If permissible, can it be said that the said
officer was independent and outside the administrative and
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disciplinary control of the Lok Ayukta?
(2) .....
(3) ......
(4) ......
Answering the aforesaid point in paragraph 19, the Hon'ble
Apex Court has observed, as under:
"19. We may first deal with the crucial question as to whether
the Director General of Police in the Office of the Lokayukta
who is to supervise the work of the police officers on
deputation in the Lokayukta is independent of the Lokayukta
and is out side the administrative and disciplinary control of
the Lok Ayukta. We agree with the Division Bench when it took
the view, - differing from the learned Single Judge, - that
though the newly created post of Director General of Police in
the Office of the Lok Ayukta was created on 21.12.1992 by an
administrative order and the relevant recruitment rules of the
staff of the Lok Ayukta were not amended to bring the said post
into the cadre under the Lok Ayukta, still the said post created
in the Lok Ayukta, police Wing was intended to be and must be
treated as part of the staff of Lok Ayukta in the police wing. It
is well-settled that administrative orders even creating posts
can be issued so long as they are not inconsistent with rules,
that is to say, as long as there is no prohibition in the statutory
rules for creation of such posts. ......"
From the aforesaid observations of the Hon'ble Apex Court, it
is crystal clear that if there is no prohibition in the rules for making the
appointment/creation of post, then appointing a person on a particular
post cannot be called as illegal.
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22. In order to elaborate scope of Article 309 of Constitution of
India, the observations of the Hon'ble Apex Court in case of Smt. Swaran
Lata Vs. Union of India and Ors reported in (1979)3 SCC 165, more
particularly, paragraphs 42 and 43 are useful, which are reproduced as
under:
"42. The Administrator in exercise of the powers conferred by
the aforesaid order of the President, framed no rules to
regulate recruitment and conditions of service of the post of
Principal, Government Central Crafts Institute for Women,
Chandigarh, nor were any rules framed prescribing the
qualifications necessary for appointment to such posts.
43. It is not obligatory under the proviso to Article 309 to
make rules of recruitment etc. before a service can be
constituted, or a post created or filed. The State
Government has executive power in relation to all matters in
respect to which the Legislature of the State has power to
make laws. It follows from this that the State Government
will have executive powers in respect of List II, Entry 41 of the
Seventh Schedule: ....... "
Thus, it is crystal clear that the ratio laid down by the Hon'ble
Apex Court in the aforesaid matter is clearly applicable to the case in
hand and in the instant case Government has exercised its power
considering the exigency and created the post. Though mala fide has
been alleged, there is absolutely no material either in form of pleadings
or by way of oral argument brought to the notice of this Court, to
substantiate contention raised. In absence of such material, we cannot
infer mala fide just because the rules of recruitment are not framed.
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Further contention of Mr. Mirza, learned Senior Counsel that General
Administration Department in the note sheet has observed that
appointment of respondent No. 4 is not made in consonance with
Government Resolution, is without merit since the notings made in the
note sheet, without there being substantial corroborative material, has
no value in the eyes of law.
23. Reliance placed by Mr. Mirza, learned Senior Counsel in Case
of Mor Modern Cooperative will not be applicable to case in hand since
there is absolutely no rule pointed out which would not permit creation
of post or appointment of respondent 4 on the aforesaid post.
24. The appointment made by the respondents is of permanent
nature and just because the Notification appointing the petitioner (page
25) restricts the period of three years, it cannot be said that the
appointment was not of permanent nature. The Notification dated
12.12.2023 appointing the respondent 4 will have to be read holistically.
If clause 5 of the said Notification is perused, it would reveal that it has
been categorically stated that after expiry of period, with approval of
competent authority and considering necessity for further period
appointments can be renewed. In the aforesaid background, we are of
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the opinion that the petitioner has not made out a case for issuance of
quo warranto.
In the aforesaid background, no case is made out by the
petitioner, therefore, the petition is liable to be dismissed and it
dismissed accordingly. No costs.
(RAJNISH R. VYAS, J.) (ANIL S. KILOR, J.)
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