JUDGMENT V.C. Daga, J.
1. This petition was heard by us on 22-12-2006 and the same was dismissed for the reasons to be recorded. Accordingly, the facts and reasons are being recorded.
2. This petition is burning example exhibiting gross impropriety in selecting and appointing the petitioner as Laboratory Attendant in the respondent No. 5 School, known as Abhyankar Girls' School and Junior College, Yeotmal run by the respondent No. 4 Womens' Education Society, Yeotmal. The School Committee of the respondent No. 5 School headed by its President Mr. Amarchand Pannalal Darda has selected and appointed his nephew i.e. real brother's son, the present petitioner, Mr. Shailendra Darda to the post of Laboratory Attendant. The approval to the said appointment was refused by respondents No. 2 and 3 - The Director and The Deputy Director of Education., Hence, this petition.
Facts:
3. Factual matrix reveals that the post of Laboratory Attendant was lying vacant in respondent No. 5-school almost for a period of more than one year prior to the date of appointment. Respondent No. 4-society issued an advertisement for making appointment to the post of Laboratory Attendant with the prior approval of respondent No. 2 -Deputy Director of Education specifically mentioning in the advertisement that the said post was reserved for the Project Affected candidate.
4. The said vacancy was notified by respondents No. 4 and 5 to the Collector, Yeotmal on 31-12-2001. A request was made to him to forward waiting list of the candidates falling in the category of Project Affected Person maintained by his office so as to enable respondents No. 4 and 5 to select candidate for the post of Laboratory Attendant. It appears that the Collector, Yeotmal forwarded list of the eligible candidates falling in the category of Project Affected Persons vide his letter dated 14-1-2002, which was received by respondent Nos. 4 and 5 on 15-1-2002. The list of the Project affected persons forwarded by the Collector was prepared according to the seniority of the candidates falling in the said category. It did not contain name of the petitioner or his father.
5. The interviews of the candidates as per advertisement were fixed on 16-1-2002. It appears that total 29 candidates were interviewed. The petitioner was one of them. It appears that the petitioner produced certificate dated 30-8-2000 issued by the Collector, Yeotmal certifying that Shri Prakashchandra son of Pannalal Darda (father of the petitioner) is a Project affected person with further certification that he has a minor son, by name; Mr. Shailendra Prakashchandra Darda, (petitioner herein). The date of birth of the petitioner, as per Birth Certificate produced on record, is 18-6-1966. Thus, on the date on which the said certificate dated 30-8-2000 was issued, he had completed 34 years of his age though the petitioner was shown as minor in the certificate dated 30-8-2000.
6. The petitioner was interviewed by the Selection Committee headed by his real uncle. He came to be selected as a meritorious candidate. The Head Master of the school sought approval from the office of the Deputy Director of Education to the said appointment. In reply, the Deputy Director of Education-respondent No. 3 by its letter dated 30-10-2002, rejected the approval inviting attention of the Head Master to the letter dated 23-10-2002 which directs that while making appointment on the vacant post, the appointment should be made as per the prevalent rules made by the State Government. It was further informed that vide circular dated 13-9-2000 post ought to have been filled in as per the said circular from amongst the candidates put on the waiting list of the Project affected persons prepared by the Collector, Yeotmal showing their respective seniority. Since the petitioner was not appointed from and amongst the list of the candidates forwarded by the Collector, the approval came to be rejected.
7. Being aggrieved by the order of rejection instead of management filing writ petition, the petitioner has preferred this petition to challenge the action of respondents No. 2 and 3 to seek directions as indicated here-in-above.
8. On being noticed, respondents No. 1, 2 and 3 appeared through the learned Assistant Government Pleader; whereas respondents No. 4 and 5 appeared through their advocate. Respondents No. 4 and 5 filed their counter affidavit and alleged that the Collector, Yeotmal vide his letter dated 14-1-2002 send the incomplete list of Project affected persons. The said list was received by them on 15-1-2002 at 4.30 p.m. That in all 29 candidates attended the interviews held on 16-1-2002. The petitioner was also interviewed since he had produced certificate belonging to the category of the Project Affected Persons issued by the Collector, Yeotmal placing his name at sr.No. 2713 in the waiting list. The validity of the letter dated 23-10-2002 and binding nature of the Government Circular dated 13-9-2000 are sought to be challenged in the counter affidavit contending that circular cannot override the Rules and that there is a conflict between circular and the Rules framed under the Maharashtra Employees of Private Schools (Conditions of Service) Act (hereinafter referred to as 'Act and Rules' for short). In nut-shell, the contention of the school management is that they were not bound to select candidate from the list of the project affected persons maintained and forwarded by the Collector, Yeotmal and there was no time left to invite those candidates for interview.
9. Respondent No. 3 has also filed its counter affidavit contending that the management never objected to the communication dated 15-1-2002 and never challenged the binding nature of circular dated 13-9-2000. On the contrary, they requested Collector, Yeotmal to send the list of Project affected persons maintained by his office. According to the respondent No. 3, it was obligatory on the part of the School management to appoint a person from the list forwarded by the Collector following terms and conditions mentioned in the circular dated 13-9-2000, which was and is very much clear and binding on the School management since respondent No. 5 School is getting non-salary grant from the Government exchequer. It is thus pleaded that the action of respondent nos. 1 to 3 is legal and valid and is liable to be sustained.
10. Learned Counsel for respondents No. 4 and 5, during the course of hearing, after taking instructions from the President of respondent No. 4-Society Mr. Amarchand Pannalal Darda, who was personally present in the Court, informed this Court that the petitioner, a selected and appointed candidate, is a son of his real brother Shri Prakashchandra Darda. He has also filed an affidavit on record in consonance with the statement made that at the time of interview of the candidates, members of the Selection Committee took rough notes of the performance of each candidate. After the interviews of the eligible candidates were over, the members of interview committee sat together to take the stock of overall performance of the deserving candidates including personal observations made in respect of each candidate. By consensus they arrived at the final conclusion to appoint the petitioner as Laboratory Attendant. The resolution dated 16-1-2002 to appoint him was adopted. Pursuant thereto, the appointment letter dated 19-1-2002 was issued by the management under the signature of the Head Mistress and Secretary of the School Committee. With the aforesaid material on record, this petition was heard by this Court on more than 2 or 3 occasions.
Submissions:
11. Mr. Gilda, learned Counsel appearing for the petitioner placed on record the synopsis of his submissions wherein two questions are raised by him; (1) Whether circular dated 13-9-2000 and other circulars issued from time to time by the State Government is applicable to the facts of the present case? And; (2) Whether the said circular override the rules framed by respondent No. 1 under the M.E.P.S. Act and Rules framed thereunder? He urged that looking to the provisions of the Act and Rules, nowhere the provision is made to provide reservation for the project affected persons. He thus submits that Government resolution dated 13-9-2000 couldn't have the effect of overriding of the Act and Rules framed thereunder. He placed into services the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 in support of his submissions.
12. Mr. S.R. Deshpande, learned Counsel appearing for respondent Nos. 4 and 5 reiterated the aforesaid contentions canvassed by Mr. Gilda and urged that to overcome the legal difficulty, respondent No. 1 has issued the circular on 23-10-2002 to explain the earlier G.R. Dated 13-9-2000 wherein it is specifically stated that the appointment could be by advertisement. He further submits that since the list of the project affected persons supplied by the office of the Collector was received a day before the date fixed for interview, it was not possible for the management to invite those candidates for their interview. He further submits that the selection process adopted by the school management is transparent. All the 29 candidates who had appeared for interview were interviewed by the legally constituted committee. As such, respondent Nos. 2 and 3 were duty bound to accord their approval to the appointment of the petitioner. He thus prayed that the petition be allowed and the impugned order refusing to grant approval to the appointment of the petitioner be quashed and set aside and necessary direction be issued to respondent Nos. 2 and 3 to grant approval to the appointment of the petitioner made by respondent Nos. 4 and 5 to the post of Laboratory Attendant.
13. Mr. Kankale, learned Assistant Government Pleader appearing for respondent Nos. 1, 2 and 3 filed synopsis of his submissions and also made oral submission contending that the petitioner has no right to challenge the binding nature of the Government resolutions issued from time to time much less resolution dated 13-9-2000. He further submits that the said resolution is very much binding on the management of the school since respondent No. 5 is Government aided institution receiving financial assistance from the Government. He further submits that respondent Nos. 4 and 5 never objected to the communication dated 16-1-2002 whereby the Collector intimated respondent No. 5 to select the candidate from the list forwarded by him by following procedure as well as circular dated 13-9-2000. He further submits that as a fact the list was called by the school management from the office of the Collector of the project affected persons. As such, looking to the conduct of the school management, it is not open for them either to challenge the validity of the resolution or the policy of the State Government. It was obligatory on the part of the management to appoint a candidate from the list of project affected persons by following due procedure as well as the circular dated 13-9-2000 which is very much clear and applicable to all the Corporation, Board Services and the Institutions who are getting aid from the Government Exchequer. He submits that respondent No. 5 is getting salary as well as non-salary grants from the Government Exchequers and thus, respondent No. 5 is bound by the above referred circular. During the course of the oral submissions he further pressed into service the various provisions of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 (the Act, 1999), to establish the binding nature of the circulars issued by the State Government from time to time directing employment of the project affected persons in the establishment of the State Government departments, Public Sector Undertakings, local self Government, Government aided institutions and Co-operative Societies under Section 73 A of the Maharashtra Co-operative Societies Act, 1960, and urged that there has to be a priority quota not less than 5% to the project affected persons. He also pressed into service various provisions of the Rules framed under the M.E.P.S. Act and Rules in support of his submissions and prayed for dismissal of the petition with costs.
Consideration:
14. Having heard the rival parties, the contention raised by Mr. Gilda, that the circular dated 13-9-2000 and other circulars issued from time to time by the State Government are not applicable to the facts of the present case and that they override the Rules framed by respondent No. 1 under the M.E.P.S. Act, and therefore, are bad and illegal and are liable to be rejected for more than one reason. Firstly; the petitioner has no locus to challenge the said circulars. The said circulars are binding on the school and the Government aided institutions receiving financial assistance from the Government Exchequer. It is, therefore, open for the management/institution and not to the employee of the management/institution who is bound by the circulars and the policy of the Government. Secondly; the appointment of the petitioner is against the circular issued by the State Government in order to resettle the project affected persons because the appointment of the petitioner itself was from the quota meant for the project affected persons. In absence of these circulars, the petitioner could not have been considered or appointed from the category of the project affected person. The attempt of the petitioner in challenging circular dated 13-9-2000 and other circulars issued by the State Government from time to time, directing priority quota in the matter of employment of the project affected persons is nothing an attempt to cut a branch of tree on which the petitioner himself is sitting. In our considered view this is a suicidal contention which the petitioner has raised which needs outright rejection.
15. The contention raised by Mr. Deshpande, appearing for the school management reiterated the contentions raised by the learned Counsel appearing for the petitioner, at the instance of the school management, also needs rejection for more than one reason. Firstly; the school management namely; respondent Nos. 4 and 5 did not invoke the writ jurisdiction of this Court to challenge the validity of the aforesaid circulars or the policy of the State Government directing priority quota of the employment to the project affected persons. By way of counter affidavit filed in the petition by respondent Nos. 4 and 5 can't be allowed to take place of the petitioner. This challenge at the instance of the management in absence of substantive petition challenging to the aforesaid circulars or the policy of the State is not open.
16. Mr. Kankale, learned A.G.P. rightly relied upon the provisions of the Act, 1999 which defines 'project affected person' under Section 2 and lays down the duties and functions of the Collector under Section 5 of the Act, 1999. Under Section 5(c) the Collector has to issue a certificate to a person who is nominated by the project affected person for being employed against the quota reserved for the nominees of the affected persons.
17. Chapter III of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 via under Section 10 provides the scheme for the project affected persons. Sub-section (6) of the Act, 1999 reads as under:
6 (a) In all Class III and IV category of services under the establishment of the State Government Departments, public sector undertakings, local self Government, Government-aided institutions and co-operative societies specified under Section 73 A of the Maharashtra Co-operative Societies Act, 1960 there shall be not less than five per cent priority quota for the employment of nominees of the affected persons.
(b) The beneficiary persons, societies, companies, factories, sugar factories, spinning mills assisted by the State Government in the form of matching share contribution etc., shall provide employment to not less than five per cent of the cadre strength of Class III and Class IV or equivalent of non-technical employees to the nominees of the affected persons:
Provided that, the above priority shall be treated as preference among the open and different reservation categories in pro-rata manner.
(c) The Collector shall maintain a register showing the recruitment position in the District and ensure removal of the backlog in recruitment of nominees of the affected persons. However, at any recruitment, the percentage of the persons so recruited from amongst the nominees shall not exceed fifty.
18. Dissection of the above provision clearly demonstrates that it is obligation on the part of the State to provide not less than 5 per cent priority quota of employment for the project affected persons. In Clause (c) of Sub-section (6) of Section 10, the Collector has to maintain a register showing the recruitment position in the District and ensure removal of the backlog in recruitment of nominees of the affected persons. In view of this legal position with which respondent Nos. 4 and 5 were well aware, chose to invite a list of the project affected persons from the office of the Collector, must be with specific intention to act upon the same. Had it been the belief of the management of the school that the provisions of the Act, 1999 or the circular issued thereunder from time to time by the State Government are not binding on them, then they would not have invited list from the office of the Collector. Needless to mention that the school had called a list of the project affected persons from the office of the Collector, it was obligatory on their part to consider the person from the said list. The name of the petitioner does not figure in the list forwarded by the Collector which was maintained according to the seniority of the candidates taking into account the date of their registration. In the above view of the legislation and statutory provisions engrafted in the Act, 1999, it will have a overriding effect over the Rules framed under the M.E.P.S. Act and the circulars issued to implement the provisions of the Act, 1999 shall be very much binding on the Government aided institutions like respondent No. 5-school. The provisions of the Act, 1999 is a complete answer to negate the submissions made by the learned Counsel appearing for the petitioner and reiterated by the Counsel appearing for respondent Nos. 4 and 5.
19. The State of Maharashtra has issued a circular dated 20-3-2000, the relevant part of which reads as under:
As per G.A.D. Government Circular dated 3-1-1997, instructions were issued for making appointments of the project affected persons on receipt of applications by the appointing authorities made directly by the project affected persons to it. However, it has come to the notice of the Government that since powers of making appointments of the project affected are with the appointing authorities, appointments are not being made according to seniority of the project affected from the waiting list in the office of the Collector in this connection. Hence, it partial modification of the Government Circular dated 3-1-1997, instructions have been issued vide the Circular dated 13-9-2000 that henceforth the appointing authorities shall not make direct appointments of the project affected candidates and make such appointments after seeking names of the project affected candidates from the waiting list in the office of the Collector, according to seniority. Instructions have been issued vide G.A.D. Government Circular dated 7-4-2001 that the project affected candidates who have submitted their applications to the appointing authorities prior to 13-9-2000 and when the posts are lying vacant on top priority basis wherein the appointing authorities have started proceedings in respect of appointments of project affected persons, before 13-9-2000, in such cases instead of making appointments of the project affected persons from the waiting list as per the seniority as per the instructions contained in Government Circular dated 13-9-2000, the appointing authorities shall make the appointments from the applications received directly as per the instructions contained in Government Circular dated 3-1-1997.
20. Reading of the aforesaid circular, the binding nature of it is clear on the Government institutions like; respondent No. 5-school. Instructions have been issued vide Government circular dated 13-9-2000 which specifically directs that; "henceforth the appointing authorities shall not make direct appointments of the project affected candidates and make such appointments after seeking names of the project affected candidates from the waiting list in the office of the Collector, according to their seniority." This circular was very much binding on respondent Nos. 4 and 5. Thus the appointment of the petitioner is clearly in breach of the Government Circulars dated 13-9-2000 and 20-3-2000. Besides this, it appears that the petitioner has clearly played fraud on the public employment by obtaining certificate dated 30-8-2000, at Annexure P-1, in which he has been shown to be 'minor son' vide para 3 of the certificate, when he was actually 33 1/2 years old on the date of the certificate dated 30-8-2000. This appears to have been done because project-affected persons or those dependent on them are only eligible for the said facility. There is absolutely no whisper anywhere that the petitioner was dependent on his father. That apart, a major son is not to be found in the list of eligible persons vide Item (3) of the certificate dated 30-8-2000, i.e. a major son is not to be treated as dependent. Respondents No. 2 and 3 were perfectly justified in refusing to grant approval to the appointment of the petitioner vide their impugned communication dated 30-10-2002. The petition is thus devoid of any substance and liable to be dismissed.
21. At this juncture, we may place it on record that during the course of hearing gross impropriety in selecting and appointing the petitioner as a Laboratory Attendant in respondent No. 5-school run by respondent No. 4-society was noticed by this Court as mentioned in the opening para of this judgment. The school committee of respondent No. 5-schoo] who has selected and appointed the petitioner was headed by its President, who is a real brother of the father of the petitioner. When this fact was noticed by us, we invited reaction of the counsel appearing for the petitioner as well as respondent Nos. 4 and 5 and called upon them to address us as to how the selection and appointment by a school committee headed by the uncle of the appointee could be sustained. Their reaction was invited with a view to give them opportunity to make their submissions in this behalf since this was not the issue involved in the substantive petition. As a writ Court, when these facts surfaced during the course of hearing, we could not have closed our eyes to the gross impropriety in selecting and appointing the petitioner to the post of Laboratory Attendant.
22. Mr. Gilda and S.R. Deshpande both initially tried to support such selection and appointment, however, finding the law laid down by the Apex Court against them, they found it difficult to take their submissions to the logical end. Mr. S. R. Deshpande appearing for respondent Nos. 4 and 5 during the course of submission fairly conceded that the action of the management cannot be sustained in view of the leading judgment of A.K. Kraipak v. Union of India .
23. In the leading case of A.K. Kraipak v. Union of India one N was a candidate for selection to the Indian Foreign Service and was also a member of the Selection Board. N did not sit on the Board when his own name was considered. Name of N was recommended by the Board and he was selected by the Public Service Commission. The candidates who were not selected filed a writ petition for quashing the selection of N on the ground that the principles of natural justice were violated.
Quashing the selection, the Court observed; "It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the Selection Board must have had its own impact on the decision of the Selection Board. Further admittedly he participated in the deliberations of the Selection Board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At very stage of his participation in the deliberations of the Selection Board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased."
24. Where a collective decision is taken by a group of persons such as Board, Committee or Commission, and it reveals that one (or more) of the members was (were) biased, it may affect the decision in its entirety since it is very difficult to decide as to what extent his (their) participation or deliberation influenced the other members.
As seen in the case of A.K. Kraipak (supra), one of the members of the Board of Selection was himself a candidate to State Forest Service as stated hereinabove. When his case was considered by the Selection Board, he did not participate in the Board. The selection was made solely on the basis of service record of candidates. Yet the Supreme Court set aside the selection holding it to be biased and violative of natural justice. Regarding his non-participation, the Court comments; "It is true that he did not participate in the deliberations of the Committee when his name was considered. But then the very fact that he was a member of the Selection Board must have had its own impact on the decision of the Selection Board, (emphasis supplied).
25. In G. Sarana v. University of Lucknow , keeping in mind probabilities and ordinary course of human conduct, the Apex Court said; "In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In a group of deliberation and decision like that of a Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more or so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner.
26. The Apex Court, in Ashok Kumar Yadav v. State of Haryana emphasized that when one of the members is closely related to a candidate appearing for the selection, he should decline to become a member of the Selection Committee or withdraw from it leaving it to the appointing authority to nominate another person in his place. In the said case Bhagwati J. (as he then was) stated that; "A. K. Kraipak case is a landmark in the development of administrative law and it has constituted in large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into legality."
27. The aforesaid observations of Bhagwati, J. compelled us to take serious note of gross impropriety exhibited by respondent Nos. 4 and 5 in selecting the petitioner for the post of Laboratory Attendant.
28. In Jaswant Singh v. State of Punjab 1991 Supp (1) SCC 313, father of one of the selected candidates was in the Selection Committee conducting interview. He, however, did not participate in the deliberation when his son appeared for viva voce. No mala fide was shown against the remaining members of the Committee. It was held that the selection was not vitiated.
29. However, in the instant case, the uncle of the petitioner did not withdraw from the selection process. On the contrary, he was very much part of the Selection Committee as a President of School Committee and had taken part in the selection process and deliberation leading to the appointment of the petitioner which is clear from the resolution of the School Committee, the reference to which is being made in the latter part of the judgment.
30. In Election Commission of India v. Subramaniam Swamy dealing with Election Commission, the Supreme Court observed that in case of multi member commission, it is not essential that all the members should participate in every decision, a member against whom bias is alleged should not participate in the formation of opinion and recuse himself unless he was compelled to do so under the doctrine of necessity. The undisputed fact of the case in hand, as stated above, is that the real uncle of the petitioner has participated in the deliberation and the selection process.
31. Mr. Deshpande, learned Counsel appearing for the school management produced before us the entire record of the selection process including a copy of the minutes of the meeting of the School Committee held on 16-1-2002 wherein the resolution to appoint the petitioner was adopted. Perusal of the said minutes of the meeting, unequivocally would go to show that one of the members of the Committee Mr. Deshpande had submitted written objection to the President of respondent No. 4- society (uncle of the petitioner) reiterating therein the selection has to be from amongst the candidates reflected in the list forwarded by the Collector and pointed out therein that one Shubhangi Avinash Deshpande whose name was reflected in the list of project affected persons forwarded by the Collector should be appointed being a meritorious candidate. However, the said objection has been brushed aside on that ground that it is not binding on the management to appoint project affected person from amongst the candidates reflected in the list forwarded by the Collector and ultimately the petitioner came to be selected and appointed for the post in question. The minutes of the meeting bore signature of the President of the society (uncle of the petitioner). He has also filed an affidavit duly affirmed on 21-12-2006 wherein he has admitted that the rough notes were taken by each members of the Selection Committee about the performance of the candidates and after interview, committee members sat together to take the stock of overall performance of the deserving candidates including personal observations made with respect to each deserving candidate and thereafter by consensus, final conclusion regarding appointment of the petitioner was arrived at. In the aforesaid undisputed factual backdrop, the appointment of the petitioner, by no stretch of imagination, could be sustained in the eyes of law for the reasons recorded hereinabove.
32. At this stage we may place it on record that the respondent-management finding it impossible to support the appointment of the petitioner, filed a pursis dated 21-12-2006 withdrawing the appointment given to the petitioner with a condition that the salary paid by the management should be reimbursed by the Education Officer with further prayer to direct the Education Officer, Yeotmal/Director of Education not to claim the said amount from respondent No. 4-School. When this pursis was rejected by us; second pursis was filed by respondent No. 4 dated 22-12-2006 seeking to withdraw appointment 1 order given to the petitioner so as to get the petition disposed of as infructuous. We decline to accept the pursis with a view to arrest the tendency of the management of the respondent-school to sweep their gross impropriety in selecting the petitioner under the carpet. Mere dismissal of the petition will not serve the ends of justice. We dismiss this petition with following directions;
(A) It would be open for the Education Department not to reimburse the salary of the petitioner. (B) If found to have reimbursed, then the department shall be entitled to claim refund thereof from respondents No. 4 and 5 since the appointment of the petitioner was in blatant breach of law.
33. In the result, petition is dismissed in terms of this order. Rule is discharged with costs quantified in the sum of Rs. 5,000/- (rupees five thousand only) to be paid to respondent No. 1- the State.