B.P. Dharmadhikari, J.(Oral) - 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 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.
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'' 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 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 recognised 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 4[c] and a judgment delivered by the Hon''ble Supreme Court reported at (1995) 2 SCC 745 (R.K. Sabharwal and others v. 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 v. 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 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. v. 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 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 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 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.
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.
"(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.
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.
