Writ Petition No. 3077 of 2011

9th May, 2013

Petitioner Counsel: Mr. S.R. Barlinge
Respondent Counsel: Mr. S.T. Shelke,Mr. R.N. Dhorde,Mr. G.M. Jadhav,Mr. P.R. Patil,Mr. Anil Ramnnaji Lakaswar

Cases Cited:
Chandrakant Sakharam Karkhanis & Ors. Vs. State of Maharashtra & Ors., 1976 Mh.L.J. 755 [Para 16]
Union of India Vs. Association for Democratic Reforms & Anr., 2002(3) ALL MR 228 (S.C.)=2002 (5) SCC 294 [Para 24]
M.Nagraj & Ors. Vs. Union of India & Ors., 2007 ALL SCR 91 : AIR 2007 SC 71 [Para 26]
State of Maharashtra & Anr. Vs. Dilip Anant Surve, 2005 (3) Mh.L.J. 98 [Para 26]

JUDGMENT

R.M. Borde, J. :- 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 (Vimukta Jatis), 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 sub-section (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 the provisions of this Act, the Government may, on occasion arises, by an order published in the Official Gazette, do anything not inconsistent with the provisions of this Act, which appears to it to be necessary or expedient for removing the difficulty;

Provided that, no such order shall be made after the expiry of a period of two years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be, after it is made, before each House of the State Legislature.

4. It is to be noted that before enactment of Act No.VIII of 2004, the procedure to be followed for filling up reserved vacancy, in the event of non availability of a suitable candidate and matters connected with de-reservation of the posts on account of non availability of the candidate, was governed by Government Resolution dated 05.12.1994, issued by the General Administration Department of the State of Maharashtra. The said Government Resolution provided that in the matters of direct recruitment, in the event of non availability of the candidate belonging to Scheduled Caste, Scheduled Tribe, De-notified Tribes, Nomadic Tribes, Special Backward Category and Other Backward Classes, etc., the posts shall be kept vacant up to five recruitment years. Even after making efforts for recruiting candidates from amongst backward categories, if the post could not be filled in, same shall be filled in by interchanging reservation amongst the categories prescribed in paragraph "A". In the event of non availability of the candidate even after interchanging reservation amongst the reserved categories, the posts shall be declared to be available for general category candidates in the 7th year and necessary proposal shall be forwarded to the General Administration Department.

5. That, so far as filling up the vacancies by promotional channel is concerned, it is provided in the circular that in the event of non availability of suitable candidate belonging to a particular reserved category, the posts shall be kept vacant for three recruitment years and efforts shall be made for filling the vacancies from amongst concerned reserved categories. It would be permissible to apply the method of interchanging reservation amongst prescribed categories in the 4th year. It is further provided that in the event of non availability of a suitable candidate from reserved category, even during 4th recruitment year, the posts shall be filled in by promoting the candidates from other categories/open categories with prior approval of General Administration Department. It is also provided in the circular that it would be for the Government to fill in the posts by making appointment for temporary period and on availability of a candidate belonging to prescribed reserved category, the post shall be offered to such candidate belonging to reserved category. It is to be noted that interchanging of reservation, provided in the Government Resolution, was restricted amongst Scheduled Castes and Scheduled Tribes and from amongst Vimukta Jatis and Nomadic Tribes amongst said category.

6. It is the contention of petitioner that in view of proviso to Section 6(1) of Maharashtra Act No.VIII of 2004, the aforesaid Government direction regarding filling up of the posts in case of non availability of backward category candidate, continues to operate. The Government of Maharashtra issued yet another Circular on 27th October, 2008. It is provided in paragraph 2 of the circular that there arises difficulty in filling up the posts by offering the posts by promotion in favour of backward class categories having small percentage of reservation. In case cadre strength of a particular category is less than 32 and in such eventuality, reserved post may not become available to few reserved categories. In order to overcome this difficulty, in the event of non availability of a candidate belonging to a particular reserved category, the post shall be offered to next roster point category within the reservation percentage. It is also prescribed that after filling up the post by offering reservation to the next roster category, if the post becomes available at a subsequent point of time, same shall revert back to the original roster point category and even after reverting back the post to the earlier roster point category, the candidate belonging to said prescribed category does not become available, the said post shall be offered in accordance with roster point to the next category. It is further prescribed that in such contingencies, the directives issued in Government Resolution dated 05.12.1994 shall not be observed and only in the event of non availability of an eligible candidate from any of the backward categories, the directives prescribed under Government Resolution dated 05.12.1994 shall be operated.

7. According to the petitioner, circular issued by the Government on 27.10.2008 is not contemplated under the provisions of the Act, much less, it is violative of the provisions of Section 6(1) proviso. It is also the contention of petitioner that by the impugned circular, the right, which is created by substantive provisions of sub-section (1) of Section 6 of the Act, of keeping the post vacant for a period of three years, the matters of promotion on account of non availability of a candidate from that category, is being taken away. It is further contended that though the substantive provision mandates the post to be kept vacant for about three years, the Government Resolution dated 05.12.1994 permits the State in case of certain exigencies to fill in the post on temporary basis that too with prior approval of General Administration Department. The impugned circular, however, permits the post to be filled by interchanging amongst reserved categories on permanent basis thereby taking away substantive right, as provided under Section 6(1) of the Act.

8. The Respondent-State as well as intervenors have controverted the contentions raised in the petition by presenting affidavits-in-reply.

9. It is the contention of Respondents that circular dated 27.10.1997 is more rational and takes into consideration the benefits of reservation in the matter of promotions to all categories of backward classes notified by the Government of Maharashtra in specified proportion.

10. According to the intervenors, the petitioner has erred in not referring to the Government Resolution dated 18.10.1997, which deals with the aspect of methodology of filling up the post from backward categories. It is contended that in view of proviso to sub-section (1) of Section 6, the Government orders regarding filling up the posts in case of non availability of backward class category candidates, which were in force on the date of commencement of the Act, continues to be in force if the same are not modified or revoked by the Government. It is contended that the proviso itself makes it clear that the Government does have powers to modify earlier orders or issue any fresh orders.

11. It is the contention of Respondent-State that when the total strength of the cadre is less than 32, no single post is likely to become available for some of the categories of backward classes in accordance with percentage of reservation prescribed under the Act. The problem gets worsened as total strength of the cadre goes on decreasing. In the event of availability of 3 posts in a particular category, only one post can be offered to a reserved category and in order to overcome the difficulty in filling up a single post, it is decided to offer the post by rotation to all backward class categories. According to the Respondent-State, intention behind issuing orders under the circular dated 27.10.2008 is to protect interest of employees of all the backward class categories.

12. According to the intervenors, provisions of Section 6(1) of the Act of 2004 cannot be attracted in the case where cadre strength of a particular department is less than 32. The provisions can be made applicable only to large categories having cadre strength of more than 32. The Government has issued Resolution dated 26.10.2004 providing guidelines and procedure for implementation of provisions of Act of 2004. It is further contended that based on the guidelines and procedure prescribed under 2004 Resolution, the State Government has issued circular on 27.10.2008 for effective implementation of the provisions of the Act in respect of the categories having a smaller cadre strength. Respondent-State as well as the intervenors, as such, pray for dismissal of the petition.

13. The petitioner has objected to the circular dated 27.10.2008 on the ground that it would not be permissible for the State to issue such circular laying down guidelines contrary to substantive provisions of the Act. Relying upon provisions of Section 6(1) proviso, it is contended that the Government orders, which are in force on the date of commencement of the Act, shall only be enforceable. There is no room to draw an inference that the State Government is empowered to issue orders after enforcement of the Act. Section 13(1) of the Act authorises the Government to make rules to carry out the purposes of the Act. The Rules made under the Act shall have to be laid before each House of the State Legislature, as provided under Section 13(2) of the Act.

14. The Respondents, on the other hand, relying upon the very proviso to sub-section (1) of Section 6, contend that the language employed in proviso, permits the State Government to modify or revoke the Government orders. It is, thus, contended that the State Government is possessed with the powers to direct modification of the orders issued prior to the date of enforcement of the Act. Proviso to sub-section (1) of Section 6 reads thus:

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.

15. The argument advanced by Respondents, relying upon the phraseology, "such Government orders shall continue to be in force unless modified or revoked" appearing in proviso, permits the State Government to cause modification in the Government orders, does not deserve acceptance. The term, "such Government orders shall continue to be in force unless modified or revoked" shall have to be read in consonance with the opening line of proviso, "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". Thus, such of those orders, which are in force on the date of commencement of the Act regarding filling up the posts, in case of non availability of backward class candidates, unless modified or revoked, shall continue to operate. It would be more clear on reading Marathi version of the proviso to sub-section (1) of Section 6, which reads thus:

ijarq ;k vf/kfu;ekP;k izkjaHkkP;k fnukadkl ekxkloxkZps mesnokj miyC/k u >kY;keqGs v'kh ins Hkj.;klaca/khps dks.krsgh 'kkldh; vkns'k veykr vkY;kl vls 'kkldh; vkns'k R;ke/;s 'kklukdMwu QsjQkj dj.;kr vkyk ulsy fdaok jnn~ dj.;kr vkys ulrhy rj veykr vl.;kps pkyw jkghy-

The term, " R;ke/;s 'kklukdMwu QsjQkj dj.;kr vkyk ulsy fdaok jn~n dj.;kr vkys ulrhy", indicate past tense. Thus, the argument that proviso to sub-section (1) of Section 6 authorises the State Government to issue directions or effect modifications in the order after enforcement of provisions of the Act, cannot be accepted.

16. It was also tried to be suggested by the Respondents that since the impugned circular is issued by the State Government by order and in the name of the Governor of Maharashtra, same is enforceable as rules framed under the Act. In this context, judgment of the Full Bench of this Court in the matter of Chandrakant Sakharam Karkhanis & others Vs. State of Maharashtra & others, reported in 1976 Mh.L.J. 755, can be considered. One of the questions referred to the Full Bench of this Court was:

"Whether the Circulars, Orders or Resolutions or parts thereof laying down rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of Maharashtra" and intended to be applicable straightway are of amount to the rules framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India, although the said Circulars, Orders or Resolution do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India and are not published in the Government Gazette?

While answering the issue, the Full Bench has observed in paragraph 32 of the judgment, thus:

"32 Circulars, Orders or Resolutions or parts thereof laying down the rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of Maharashtra" and intended to be applicable straightway can amount to rules framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution, although the said Circulars, Orders or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India and are not published in the Government Gazette."

17. It is tried to be argued that the Circulars, Orders or Resolutions or part thereof laying down the rules or principles 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 straightway 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.

18. The circular dated 27.10.2008 prescribes modalities for filling up the posts, 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 persons under sub-section (2) of Section 4 remains unfilled, such vacancy shall be carried forward up to five years in case of direct recruitment and three years in case of promotion. Sub-section (2) of Section 6 provides that when a vacancy is carried forward as provided in sub-section (1), it shall not be counted against the quota of the vacancies reserved for the concerned category of persons for the recruitment year to which it is carried forward. The provisions of Section 6(1) and (2) are in conformity with Article 16(4B), whereas, provisions of Section 5 are in conformity with Article 16(4A). The impugned circular, however, makes departure from provisions of Section 6(1) and provides that, in case of non availability of candidate belonging to a particular reserved category, the roster point prescribed for that category shall be shifted to the next roster point and the candidate belonging to next roster point category, if becomes available, he may be promoted. For example, if the roster point prescribed for offering promotion to a candidate rests with Scheduled Tribe category and in the event of non availability of a candidate belonging to Scheduled Tribe category, the roster point shall have to be shifted to De-notified Tribe (A), or any other category, which may be the next roster point category and candidate belonging to said category shall have to be appointed. This prescription is contrary to the spirit of provisions of sub-section (1) of Section 6 which prescribes that any vacancy reserved for any category of persons under sub-section (2) of section 4 remains unfilled, such vacancy shall be carried forward up to five years in case of direct recruitment and three years in case of promotion. The prescription under the circular of filling up the vacancy by offering the promotional post to the next category, is contrary to the provisions of Section 6(1) of the Act.

19. 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 dated 05.12.1994 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 that on availability of a candidate belonging to a particular reserved category, the order of promotion effected for temporary duration shall come to an end and the post shall have to be offered to the candidate belonging to a prescribed reserved category. Thus, in emergent situation, it is open for the State Government to fill in the vacant post by making appointment of an eligible candidate from amongst any other categories.

20. The objection raised by the petitioner for observing the directives issued under the impugned circular to the effect that in the event of non availability of suitable candidate of a particular reserved category, said promotional post shall be filled in by appointing a candidate belonging to next roster point category and that too on permanent basis, deserve consideration. The offer of promotion to a candidate belonging to next roster point category, in the event of non availability of a candidate from the prescribed reserved category on permanent basis, is against spirit of Section 6(1) of Act No.VIII of 2004. The Act No.VIII of 2004, read with Government Resolution dated 05.12.1994, makes it mandatory for the appointing authority to take steps for filling up reserved vacancy from amongst candidates belonging to prescribed reserved category. However, contrary to the mandate of the Act, impugned circular mandating the appointing authority to offer the post to next roster point reserved category, is impermissible. The impugned circular issued by the Government is liable to be quashed and set aside since it is violative of Articles 16(4A) and 16(4B) of the Constitution. Article 16(4A) permits the State for making provision for reservation in the matters of promotion with consequential seniority to any class or classes of posts in services under the State, in favour of Scheduled Castes and Scheduled Tribes, which, in the opinion of the State, are not adequately represented in the services under the State. Whereas, Article 16(4B) provides for unfilled vacancies of a year to be carried over in succeeding year or years and such class of vacancies are to be considered together with vacancies of the year in which they are filled up for determining ceiling of 50% reservation of total number of vacancies of that year.

21. The Maharashtra Act No.VIII of 2004, which provides for reservation in promotion, makes a provision for reservation in promotion in favour of Scheduled Castes, Scheduled Tribes as well as De-notified Tribes, Nomadic Tribes, Special Backward Category and Other Backward Classes. The provision for prescribing reservation in promotion for Scheduled Castes and Scheduled Tribes is as mandated by Article 16(4)(A) of the Constitution, whereas, provision for reservation for other backward classes is provided under the Enactment. Section 6 of the Act, as stated earlier, provides for carrying over unfilled vacancies in case of promotion for further three years. It is also provided in sub-section (2) of Section 6 that when the vacancy is carried forward, as provided in sub-section (1), it shall not be counted against the quota of vacancies reserved for the concerned category of persons for the recruitment year to which it is carried forward. The provisions of Section 6 of the Act are in conformity with Article 16(4B) of the Constitution. The impugned circular prescribes procedure contrary to the mandate of Section 6 of shifting unfilled vacancies of a specified reserved category to next roster point category i.e. extending the benefits of reservation in the matters of promotion in favour of other categories in stead of keeping the post vacant for the period of three years as mandated by Section 6(1). It may so happen in case of a unfilled vacancy in the matter of promotion specified for Scheduled Tribe category, occurring in a particular recruitment year, being filled in by appointing a person from other reserved category i.e. De-notified Tribe, NT or SBC category. The methodology of shifting of roster point in favour of other categories, in the event of non availability of candidate belonging to a specified reserved category, is contrary to mandate of Section 6(1) of the Act as well as contrary to provisions of Article 16(4A) of the Constitution.

22. The Government Resolution dated 05.12.1994 prescribes a procedure for interchanging reservation amongst the specified categories, as laid down in paragraph "A" of the 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. The 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. The methodology of interchanging reservation prescribed for Scheduled Caste and Scheduled Tribe categories in favour of other reserved categories, provided under the impugned circular, would be contrary to the mandate of Article 14(4A) of the Constitution. The reservation in the matter of promotions in favour of Scheduled Castes and Scheduled Tribes is, as provided under the Constitution, whereas, reservation provided in favour of other categories in Section 4 of the Act, is statutory one. The directives contained in the impugned circular, issued by the Government, run counter to the provisions of Maharashtra Act No.VIII of 2004, so also it violates mandate of Article 16(4A) and 16(4B) of the Constitution.

23. For the reasons recorded above, circular issued by the State of Maharashtra on 27.10.2008 deserves to be quashed and set aside.

24. Shri Dhorde, learned Senior Counsel, appearing for intervenors, seeks leave to place reliance on the judgment in the matter of Union of India Vs. Association for Democratic Reforms & another, reported in 2002 (5) SCC 294 : [2002(3) ALL MR 228 (S.C.)]. One of the questions arisen for consideration before the Supreme Court was, as to whether the Election Commission can, by issuing necessary directions, fill the vacuum till there is a legislation on the subject. It has been held by the Supreme Court, in the aforesaid judgment, that Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. Relying upon the observations made by the Supreme Court, in the aforesaid matter, it is contended that the State has powers to issue directions to meet the contingency which could not be foreseen or anticipated by the enacted laws or rules. No doubt, under the Maharashtra Act No.VIII of 2004, the State of Maharashtra is empowered to make rules to carry out the purposes of this Act.

25. In the instant matter, however, circular issued by the Government, 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.

26. Learned Counsel appearing for the petitioner has placed reliance on the judgments in the matters of (i) M.Nagraj and others Vs. Union of India and others, reported in AIR 2007 SC 71 : [2007 ALL SCR 91]; and (ii) State of Maharashtra and another Vs. Dilip Anant Surve, reported in 2005 (3) Mh.L.J. 98. The judgments cited are of little assistance.

27. For the reasons recorded above, writ petition deserves to be allowed and same is accordingly allowed. The impugned circular dated 27.10.2008, issued by the Government of Maharashtra, through General Administration Department, is quashed, being contrary to the provisions of Maharashtra Act No.VIII of 2004 as well as violative of provisions of Article 16(4A) and 16(4B) of the Constitution of India. It would be mandatory for the State Government to implement the provisions of Maharashtra Act No.VIII of 2004, strictly.

28. Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs.

29. In view of disposal of petition, pending Civil Applications do not survive and stand disposed of.

Petition allowed.