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In the High Court of Bombay at Aurangabad
R.M. BORDE & T.V. NALAWADE, JJ.
Magas Varga Karmachari-Adhikari Suraksha Mahasangh
Versus
The State of Maharashtra, through its Secretary, General Administration Department & Others
Writ Petition No. 3077 of 2011
Decided on : 09-05-2013
Circular dated, 27.10.2008 not issued to overcome situation where promotional post remains unoccupied by operation of Section 6(1) of Act. - In the present case, it is argued on behalf of the respondents that promotional post remains unoccupied by operation of Section 6(1) of the Act and in order to overcome the difficulty, the impugned circular is issued. The argument advanced by the respondents is devoid of substance for the reason that the Government Resolution takes care of such contingencies. Paragraph No. 2 of the Government Resolution of 1994 provides that in emergent situation, with the prior approval of General Administration Department, the post can be filled in for temporary duration by making appointment of a person from other categories.
It is also provided in circular that on availability of candidate belonging to particular reserved category, order of promotion effected for temporary duration shall come to end and post shall have to be offered to candidate belonging to prescribed reserved category. Thus in emergent situation, it is open for State Government to fill in vacant post by making appointment of eligible candidate from amongst any other categories.
Maharashtra State Police Services (Reservation for SC, ST) Act, 2001 - Section 6 - Power of State Government.
State Government, not conferred with powers under proviso to Section 6(1) of Act, to issue directions or effect modifications in order after enforcement of Act. - Argument advanced by respondents, relying upon phraseology, ’such Government orders shall continue to be in force unless modified or revoked’ appearing in proviso, permits State Government to cause modification in Government orders, does not deserve acceptance.
Term shall have to be read in consonance with opening line of proviso, ’provided that, on date of commencement of this Act, if any Government orders regarding filling up posts, in case of Backward Class candidates’. Thus, such of those orders, which are in force on date of commencement of Act regarding filling up posts, in case of non-availability of backward class candidates, unless modified or revoked, shall continue to operate.
Thus, argument that proviso to Section 6(1) authorises State Government to issue directions or effect modifications in order after enforcement of provisions of Act, cannot be accepted.
Maharashtra State Police Services (Reservation for SC, ST) Act, 2001 - Section 6 - Prescription under circular dated 27.10.2008.
Prescription under Circular dated 27.10.2008 of filling up vacancy by offering promotional post to next category, is contrary to provisions of Section 6(1) of Act. - The circular prescribes modalities for filling up the post, in case of non- availability of backward class candidates from amongst different sub-categories, is contrary to the substantive provisions contained in the Act. Section 5 of the Act provides that the reservation in promotion shall be at all stages of promotions. Section 6(1) provides that, if in respect of any recruitment year, any vacancy reserved for any category of person under Section 4(2) remains unfilled, such vacancy shall be carried forward up to 5 year in case of direct recruitment and 3 years in case of promotion. Section 6(2) provides that when vacancy is carried forward as provided in Section 6(1), it shall not be counted against quota of vacancies reserved for concerned category of persons for recruitment year to which it is carried forward.
Provisions of Section 6(1), (2) are in conformity with Article 16(4-B), whereas, provisions of Section 5 are in conformity with Article 16(4-A). Impugned circular, however, makes departure from provisions of Section 6(1) and provides that, in case of non- availability of candidate belonging to particular reserved category, roster point prescribed for that category shall be shifted to next roster point and candidate belonging to next roster point category, if becomes available, he may be promoted. For example, if roster point prescribed for offering promotion to candidate rests with Scheduled Tribe category and in event of non-availability of candidate to Scheduled Tribe category, roster point shall have to be shifted to De-notified Tribe (A), or any other category, which may be next roster 1 point category and candidate belonging to said category shall have to be appointed.
This prescription is contrary to spirit of provisions of Section 16(1) which prescribes that any vacancy reserved for any category of persons under Section 4(2) remains unfilled, such vacancy shall be carried forward up to 5 years in case of direct recruitment and 3 years in case of promotion. Prescription under circular of filling up vacancy by offering promotional post to next category is contrary to provisions of Section 6(1) of Act.
Government resolution prescribes procedure for interchanging reservation amongst specified categories, as laid down in paragraph ’A’ of Government Resolution. It has been prescribed that interchanging of reservation would be permissible amongst Scheduled Caste and Scheduled Tribe categories, whereas, interchanging of reservation would be permissible from amongst Vimukta Jatis and Nomadic Tribes. Third category, wherein interchanging of reservation would be permissible, consist of NT(C) Dhangar and others, NT(D) Vanjari and others and Other Backward Classes.
Contrary to this, the methodology of interchanging reservation prescribed for Scheduled Caste and Scheduled Tribe categories in favour of other reserved categories, provided under impugned circular, would be contrary to mandate of Article 14(4-A) of Constitution, whereas, reservation provided in favour of other categories in Section 4 of Act, is statutory one. Directives contained in impugned circular, issued by Government, run counter to provisions of Maharashtra Act No. VIII of 2004, so also it violates mandate of Article 16(4-A) and 16(4-B) of Constitution.
In the instant matter, circular issued by the Government, dated 27.10.2008 apart from beyond the powers of the Government under the relevant statute to issue directions, is contrary to the provisions of the Act as well as Constitutional provisions.
Maharashtra State Police Services (Reservation for SC, ST) Act, 2001 - Section 13 - Rule making power under.
Where mandatory requirement under Section 13 of Act was not fulfilled in publishing circular dated 27.10.2008 therefore said circular has no binding effect. - It is tried to be argued that the Circulars, Orders or Resolutions or part thereof laying down the rules or principle s of general application and which have been duly authenticated by the signature under the endorsement, "By order and in the name of the Governor of Maharashtra" and intended to be applicable straightaway can amount to rules. The issue referred to the Full Bench was referrable to the Rules framed under Article 309 of the Constitution. Instant case is distinguishable for the reason that Section 13 of the Act, which governs the rules making power prescribe that the Government, may, by notification in the Official Gazette, make rules for the purposes of this Act. Sub- section (2) of Section 13 provides that, every rule made under this Act shall be laid, as soon as may be, after it is made, before each House of the State Legislature, while it is in session for a total period of thirty days. The mandatory requirements laid down under Section 13 of the Act cannot be said to have been fulfilled in publishing the impugned circular dated 27.10.2008 and as such, the argument that the circular has binding effect, as in case of rules framed under the statute, does not deserve acceptance.
R.M. Borde, J.
1. The petitioner-Society has approached this Court praying for quashing the Circular dated 27.10.2008 issued by the State of Maharashtra through its General Administration Department, being ultra vires the Constitution of India. The petitioner is also praying for issuance of writ of mandamus or any other appropriate writ, order or direction in the like nature to the Respondents to implement the provisions of Government Resolution dated 05.12.1994 and provisions of Maharashtra State Public Services (Reservation for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act, 2001 (herein after referred to as “Act No.VIII of 2004), strictly.
2. According to the petitioner, circular issued by the Government on 27.10.2008 is contrary to Maharashtra Act No.VIII of 2004 and is also violative of provisions of Article 16(4A) and 16(4B) of the Constitution of India.
3. The State of Maharashtra has enacted Act No.VIII of 2004 with a view to provide reservation of vacancies and posts in public services in favour of persons belonging to Scheduled Castes, Scheduled Tribes, De-notified Tribes (VimuktaJatis), Nomadic Tribes, Special Backward Category and Other Backward Classes of citizens and the matters connected therewith and incidental thereto. Section 4(1) of the Act provides that the posts reserved for the categories mentioned in the Section shall not be filled in by the candidates not belonging to that caste, tribe, category or class for which the posts are reserved. The percentage of vacancies or seats to be reserved is provided in subsection (2) of Section 4 of the Act. Section 5 of the Act provides that reservation in promotion shall be at all stages of promotions. Sub-section (2) of Section 5 reads thus:
5(2) On the date of coming into force of this Act, if any Government orders providing for reservation for any posts to be filled by promotion, are in force, the same shall continue to be in force unless modified or revoked, by Government.
Section 6(1) provides that:
6(1) If in respect of any recruitment year, any vacancy reserved for any category of persons under sub-section (2) of section 4 remains unfilled, such vacancy shall be carried forward upto five years in case of direct recruitment and three years in case of promotion;
Provided that, on the date of commencement of this Act, if any Government orders regarding filling up the posts, in case of non-availability of Backward Class candidates are in force, such Government orders shall continue to be in force unless modified or revoked by Government.
Rules making power is provided in Section 13 of the Act, which reads thus:
13(1) The Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.
(2) Every rule made under this Act shall be laid, as soon as may be, after it is made, before each House of the State Legislature, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in rule or both Houses agree that the rule should not be made and notify their decision to that effect in the Official Gazette, the rule shall, from the date of publication of such decision in the Official Gazette, have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.
Section 14 of the Act provides that: 14 The provisions of this Act shall be in addition to and not in derogation of the provisions contained in any other Act, for the time being in force.
Section 16 of the Act provides that:
16(1) If any difficulty arises in giving effect to
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