Bombay High Court
Dr. Sharmila W/O. Sandesh Ghuge vs State Of Maharashtra And 3 Ors on 7 February, 2020
Author: R.I.Chagla
Bench: S. C. Dharmadhikari, R.I.Chagla
908.PIL-104-14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.104 OF 2014
Dr.Sharmila w/o Sandesh Ghuge ... Petitioner
versus
State of Maharashtra and Ors. ... Respondents
WITH
CHAMBER SUMMONS NO.171 OF 2016
IN
PUBLIC INTEREST LITIGATION NO.104 OF 2014
Earth Castle Residency Co-op. Housing
Private Limited ... Applicant
In the matter Between :
Dr.Sharmila w/o Sandesh Ghuge ... Petitioner
versus
State of Maharashtra and Ors. ... Respondents
WITH
CHAMBER SUMMONS NO.77 OF 2017
IN
PUBLIC INTEREST LITIGATION NO.104 OF 2014
Ramila R. Kilachand ... Intervener/
third party
In the matter of :
Dr.Sharmila w/o Sandesh Ghuge ... Petitioner
versus
State of Maharashtra and Ors. ... Respondents
Ms.Shivangi Roy i/b Shyam D.Dewani for
the Petitioner.
Mr.A.A.Kumbhakoni-Advocate General
a/w Ms.Geeta R. Shastri-Additional
Government Pleader for State.
Mr.S.S.Pakale a/w Ms.Kejali H. Mastakar
for MCGM.
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M.M.Salgaonkar
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908.PIL-104-14.doc
Mr.Sharan Jagtiani-Amicus Curiae
present.
CORAM :- S. C. DHARMADHIKARI &
R.I.CHAGLA, JJ.
DATE :- FEBRUARY 7, 2020 P.C. :-
1. Heard.
2. At our request, the learned Advocate General has agreed to appear after taking instructions, particularly on the note which is tendered today and the issue therein that in the year 2003, the Government of Maharashtra has created a post of Director, Maharashtra Fire Service-Group-A. From June 2005 to November 2014, a regular Director was appointed, but since December 2015 till date, the additional charge of the post of Director is given to the Chief Fire Officer of a leading Fire Brigade.
In this case, it is given to the Chief Fire Officer, Mumbai Fire Brigade. Thereafter, it is said that the recruitment proposal so as to enable the Government to fill up the regular post by nomination is sent to Maharashtra Public Service Commission. What worries us is that the Government has floated a proposal to amend the recruitment rules for this post of Director.
3. Rule 3 of the present rules styled as the Director, Maharashtra Fire Services Group-'A', in the Office of the Fire Page 2 of 6 M.M.Salgaonkar ::: Uploaded on - 13/02/2020 ::: Downloaded on - 08/06/2020 01:41:53 :::
908.PIL-104-14.doc Advisor to the Government of Maharashtra (Recruitment) Rules, 2007 providing for the qualification for the post reads thus :-
"3. Appointment to the post of the Director, Maharashtra Fire Services, Group-'A' shall be made either,-
(A) by nomination from amongst candidate who,-
(i) is not more than fifty years of age;
(ii) possess,-
(a) degree [B.E.(Fire)] OR Advance Diploma in Fire Engineering from National Fire Service College, Nagpur, Ministry of Home Affairs, Government of India :
Provided that, Preference may be given to the candidates having secured Distinction; or
(b) Associate Membership of the Institution of Fire Engineers (India) or Institution of Fire Engineers (U.K.), (A.M.I.E., Fire); or
(c) Membership of the Institute of Fire Engineering (U.K), which is obtained after obtaining a degree in any discipline; and
(d) practical experience of not less than twenty years in the Fire Services in the Municipal Corporation or State Government Undertaking functioning as a Special Planning Authority and has a role to extend Fire Service for public properties, out of which not less than ten years, on the post of the Chief Fire Officer, Group- 'A' who is functioning as Head of the Department;
(e) has good physique and the following minimum physical standards,-
Height : 165 cms. Weight : 50 Kgs. Chest : 81 cms, with minimum chest expansion of 5 cms;
(f) adequate knowledge of Marathi so as to enable the candidate to read, write and speak the Marathi language with facility; and
(g) valid Heavy Vehicle Driving Licence.
(iii) shall have ability to plan and strengthen the Fire Services in the State of Maharashtra and should have adequate experience of preparation of budget provisions, proposals for technical and administrative approvals and the administration of Development Page 3 of 6 M.M.Salgaonkar ::: Uploaded on - 13/02/2020 ::: Downloaded on - 08/06/2020 01:41:53 :::
908.PIL-104-14.doc Control Rules pertaining to the fire safety :
Provided that, the preference may be given to the candidates who possess post graduate degree in Management or N.C.C. "C" Certificate or Diploma in Industrial Safety;
(iv) have adequate teaching skill and experience with recognized or affiliated Institute of a Statutory University, in the subject of Fire Safety or General Management or Administration, etc. OR (B) by transfer or deputation of a suitable person from equivalent post in Fire Services of Municipal Corporations or Government Undertaking functioning as a Special Planning Authority, possessing qualifications and experience prescribed for the appointment by nomination as laid down in the above sub-rule (A)."
4. We have impressed upon both, the Municipal Corporation as also the State that there cannot be any compromise and if one finds that competent persons within Maharashtra or even outside Maharashtra, but possessing all qualifications are not applying, the State, would be well advised, to relax the rigour of a condition where the candidate is supposed to possess adequate knowledge of Marathi so as to enable him to read, write and speak this language with facility. This qualification may not present a difficulty at the threshold because the candidate can acquire this qualification after appointment within a given time period. Until then, he should be assisted.
5. If anybody has to enforce the law, it is the Government. In this case, "Director" means the person appointed by the State Government to be the Director, Maharashtra Fire Services,Group Page 4 of 6 M.M.Salgaonkar ::: Uploaded on - 13/02/2020 ::: Downloaded on - 08/06/2020 01:41:53 :::
908.PIL-104-14.doc A, under section 18 of the the Maharashtra Fire Prevention and Life Safety Measures Act, 2006. Now, Section 18 says that, the State Government shall appoint a person to be the Director of Fire Services and such other officers and staff as may be necessary from time to time to assist the Director while exercising his powers or discharging his duties or functions under this Act or the rules made thereunder. This is the single top-most post contemplated by Section 18 and the jurisdiction of the Director so appointed shall extend to the entire State in matters relating to fire services. All that he has to do is, he must exercise the powers and perform the duties as are conferred and imposed upon him by this Act or rules or orders made thereunder subject to the control, direction and supervision of the State Government. The powers and duties are set out in Section 19 and a perusal of Section 19 leaves us in no manner of doubt that this is a prominent post and the most qualified, eligible, competent and experienced should be appointed as a Director. If one peruses the further sections concerning his power, it is evident that if there is a fire in any area, the Director or the Chief Fire Officer or any other Fire Officer who is in-charge of fire fighting operations on the spot can remove or order any other fire officer or fire personnel to remove any person, who, by his presence, interferes with or impedes the operations for extinguishing the fire or for Page 5 of 6 M.M.Salgaonkar ::: Uploaded on - 13/02/2020 ::: Downloaded on - 08/06/2020 01:41:53 :::
908.PIL-104-14.doc saving life or property. The further powers that are conferred are also important and it is also the duty of the Director to ensure that there is fire fighting equipment and life safety measures in place. The requisition of men, materials and equipments can be made by this Director.
6. We are, therefore, of the view that the State must consult in this matter not only the higher officials in hierarchy, but also the Ministry of Law and Judiciary so that with the assistance of the learned Advocate General and this Ministry, some of the requirements such as knowledge of Marathi can be fulfilled later and post-appointment, within the given timeframe.. If it is not necessary to make any change or modification, then, within the prescribed qualification and criteria, a competent official must be found so as to man this post, which is vacant for more than four and half years.
7. Since, this Court is seized of the matter, we are of the opinion that no proposals, which are pending for amending the recruitment rules should be finalized by the State.
8. Stand over to 21st February, 2020.
(R.I.CHAGLA, J.) (S.C.DHARMADHIKARI, J.) Page 6 of 6 M.M.Salgaonkar ::: Uploaded on - 13/02/2020 ::: Downloaded on - 08/06/2020 01:41:53 :::