1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.170 OF 2001 Qayyum Hasan Qureshi .. Petitioner V/s State of Maharashtra & Ors. .. Respondents Ms.Preeti B.Walimbe for the Petitioner. CORAM : D.K.DESHMUKH & R.G.KETKAR, JJ. DATE : 15TH OCTOBER, 2009. P.C.: 1. By this petition under Article 226 of the Constitution of India, the petitioner challenges the judgment and order dated November 8, 2000 passed by the Maharashtra Administrative Tribunal, Mumbai Bench, (for short “MAT”) whereby the petitioner’s Original Application No.468 of 2000 was disposed of. The relevant and material facts for the disposal of the present petition are as under: 2. The petitioner was appointed as clerk on May 2, 1980 in the State Government. On September 1, 1995, in exercise of powers conferred by Proviso to Article 309 of the Constitution of India and in supercession of all existing rules, orders, instructions made in that behalf, the State Government made rules regulating the recruitment to the post of Sales Tax Inspectors, Gruop C in the Sales Tax Department 2 under the Finance Department of the Government of Maharashtra viz.Maharashtra Sales Tax Inspector (Recruitment) Rules 1995 (for short the “Rules”). Prior to coming into force of these rules, the appointment to the posts of Sales Tax Inspectors was made by promotion of suitable persons on the basis of seniority subject to fitness from amongst the persons holding posts of clerks, clerk-typists, clerk with shorthand allowances, having not less than three years regular service in that posts or by nomination on the basis of result of the competitive examination held by the Maharashtra Public Service Commission (for short M.P.S.C.). 3. After introduction of the rules, one more source of recruitment was introduced viz. Selection on the basis of merit list prepared by the MPSC from among clerks who have completed seven years of regular service in the Sales Tax Deprtment. 4. On August 22, 1996, 110 posts were advertised. The petitioner qualified for appointment on the post by securing 249 marks i.e.more than qualifying standard of 248 marks. According to the petitioner total 650 posts were available in the category for departmental competitive examination. Out of that 209 posts were actually filled in leaving behind the backlog of 441 posts. The petitioner contended that since there was backlog of 444 vacancies, if all these posts were to be advertised, he would have come within the zone of selection. 3 However, only 110 posts were advertised, with the result, though the petitioner was duly qualified for appointment on account of completing seven years of regular service as clerk, he was deprived. With these assertions, the petitioner instituted Original Application before the MAT. The petitioner also challenged the selection of the 4th Respondent on the ground that he was not even qualified for appearing in the competitive examination as he did not complete regular service of seven years. As far as this point is concerned, the Tribunal has recorded a finding in favour of the petitioner. In view of this learned counsel for the petitioner did not press this point. 5. The Respondents resisted the application by filing reply setting out therein that there are 2165 sanctioned posts of Sales Tax Inspectors. Through new channel of recruitment introduced w.e.f. September 1, 1995, 30% posts are to be filled in by departmental competitive examination which comes to 650 posts. It was not possible for the Respondents to wipe out backlog of 441 posts in respect of departmental examination at one stroke and therefore it was planned to wipe out the backlog in a phased manner. 6. In support of this petition Ms.Preeti Walimbe, learned counsel for the petitioner submitted that admittedly there was backlog of 441 posts. As against this the Respondents advertised only 110 posts. If the Respondents were to advertise 441 posts of Sales Tax Inspectors, the 4 petitioner would have come in the zone of selection. However, the Respondents advertised 110 posts. With the result though the petitioner was qualified as he completed seven years of regular service as a clerk, he was deprived of selection. She invited our attention to the provisions of Rules. 7. After hearing learned counsel for the petitioner it is evident that the Respondents had advertised 110 posts though there were 441 vacancies. Perusal of prayers made in the Original Application indicates that the petitioner did not challenge the basic decision of the Respondents of advertising 110 posts. From the material on record it is clear that the Respondents had promoted 858 persons in excess of the quota prescribed for promotion before April 1, 1996. In order not to disturb these appointments the Respondents decided to fill up the posts of Sales Tax Inspectors through the departmental competitive examination in a phased manner, so that the persons who are promoted prior to introduction of the Rules were protected. We do not find any error in the policy decision taken by the Respondents. 8. Quite apart while exercising jurisdiction under Article 226 of the Constitution of India, this Court cannot direct the Employer to fill the vacant posts. The said matter has to completely rest within the realm of the Respondents. The MAT after considering the affidavit of the Respondents directed the Government to adhere to its plan of filling 5 up the backlog within five years. 9. We do not find any infirmity in the decision of the MAT. In the result, the petition being devoid of any substance deserves to be dismissed. The Petition is accordingly dismissed. Rule is discharged, with no order as to costs. (D.K.DESHMUKH,J.) (R.G.KETKAR, J.)