Pandurang Subrao Dhabugade And ... vs Agricultural Produce Market ...
2003 Latest Caselaw 1283 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. P.A. Pol, learned Counsel, appears and waives service of notice of rule on behalf of respondent Nos. 1 and 2. Mr. V.P. Malvankar, learned Assistant Government Pleader, appears and waives service of notice of rule on behalf of respondent Nos. 3, 4 and 7. Mr. S.A. Ingawale, learned Counsel, appears and waives service of notice of rule on behalf of respondent No. 5. Though served, respondent No. 6 has not appeared.

2. The petitioners, who claim to be ex-Directors and Members of the Agricultural Produce Market Committee, Tasgaon, Dist. Sangli, and as such interested in proper management and administration of the Market Committee, have approached this Court for an appropriate writ, direction or order praying for quashing and setting aside an order dated 26th February, 2003 passed by the Administrator, Agricultural Produce Market Committee, Tasgaon, respondent No. 2 herein, appointing respondent No. 5 to be the Secretary of the said Committee.

3. The case of the petitioners is that they are ex-Directors and Members of respondent No. 1 - Market Committee. The Committee is constituted and established under the provisions of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (hereinafter referred to as "the Act"), and the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (hereinafter referred to as "the Rules"). At present, respondent No. 2 is in-charge of respondent No. 1 Market Committee as an Administrator, Respondent No. 3 is the District Deputy Registrar, Co-operative Societies, Sangli and respondent No. 4 is the Director of Agricultural Marketing. Respondent No. 5 has been appointed as Secretary and the said appointment is under challenge in this petition. Respondent No. 6 Is sitting Member of Legislative Assembly (M.L.A.) as also Minister of Co-operation of the State of Maharashtra, respondent No. 7.

4. According to the petitioners, the Agricultural Produce Market Committees' Employees Service Rules, 1966 (hereinafter referred to as "Service Rules") provides for filling of posts and vacancies in the Market Committee. The Service Rules lay down as to how appointments to certain posts can be made by the Market Committee. Rule 46 provides that appointment of the employees on the post falling vacant or newly created in the Market Committee shall be made, as far as possible, by giving promotion to the employees in the service of the Market Committee. Only in exceptional circumstances and by recording reasons, other mode can be adopted. The Service Rules also require separate seniority lists to be maintained for officers, members of senior staff and junior staff. The post of Secretary falls under Officers' category. The eligibility criteria have been laid down in Rule 11 of the Service Rules which states that the Secretary must be having educational qualification of B.Sc. (Agri.) or B.Com. or B.A. (Economics) or LL.B. Rule 9 prescribes age limit and declares that appointment of officers shall be made from candidates whose age is not less than eighteen years and not more than thirty years. There is also a provision relating to relaxation of age which states that such age limit can be relaxed by five years in certain cases.

5. The assertion of the petitioners in the petition is that respondent No. 5 is neither eligible nor qualified to be appointed as Secretary of respondent No. 1 Market Committee and the said action has been taken mala fide and in colourable exercise of power by the respondents at the instance of respondent No. 6, who is a sitting M.L.A. and Minister of the Department concerned. It has been taken only with a view to oblige respondent No. 5 and to have his "yes-man" in the Committee. It was also submitted that by not following the procedure prescribed in the Service Rules, the respondent-authorities have committed an illegality and the said action deserves to be quashed and set aside.

6. Pursuant to notice issued by this Court, (as to admission as well as final hearing), the respondents appeared. Affidavits and further affidavits have been filed. We have heard the learned Counsel for the parties and, with the consent of parties, have taken up the petition forthwith for final hearing.

7. The learned Counsel for the petitioners contended that since respondent No. 5 is neither eligible nor qualified, he could not have been appointed to the post of Secretary. It was also urged that in accordance with the Service Rules, no direct appointment by nomination could have been made to the post of Secretary without exhausting the other mode. It is only when the other mode, viz. promotion could not be made in absence of eligible and qualified candidate that by recording reasons, a person can be appointed by direct selection. Since eligible and qualified employees serving in respondent No. 1 Market Committee were available, the action taken by the respondent-authorities is illegal, unlawful and inconsistent with the provisions of the Service Rules.

8. The appointment of respondent No. 5 is also illegal inasmuch as the same has been made at the behest of the sitting M.L.A. and Minister of Cooperation Department, respondent No. 6 herein. It was at the instance and insistence of respondent No. 6 that the action has been taken which has been approved even by respondent Nos. 3 and 4 and on that ground also, the appointment is liable to be set aside.

9. On behalf of the contesting respondents, on the other hand, the action is sought to be supported by contending that it is legal, valid and in accordance with law. Respondent No. 5 cannot be said to be ineligible or unqualified. The relevant Service Rules provide for such an appointment and in bona fide exercise of powers, the appointment has been made. The petitioners, who do not claim to be qualified for the post of Secretary, and, hence, interested in such appointment, cannot make grievance on the so-called ground of public interest and by raising an objection on the ground that as ex-Directors of the Committee, they are interested in proper administration of the Committee. It was, therefore, submitted that the petition deserves to be dismissed.

10. Having heard the learned Counsel for the parties, in our opinion, the petition deserves to be allowed on more than one ground.

11. So far as eligibility is concerned, as already noted earlier. Service Rules prescribe the age limit within which a person can be appointed as an employee in the Market Committee. Under Rule 9, such candidate should not be less than eighteen years and more than thirty years of age. The same rule also provides relaxation of age upto five years in certain circumstances enumerated in the rules.

12. In the instant case, respondent No. 5 was born on 23rd May, 1972. He, therefore, completed thirty years on 22/23rd May, 2002. Admittedly, respondent No. 5 was appointed by direct recruitment to the post of Secretary by an order dated 26th February, 2003 with effect from 1st March, 2003. Thus, he had crossed the age limit which has been prescribed in Rule 9 of the Service Rules.

13. It is also necessary to consider the provisions of Rule 46 of the Service Rules. Under that rule, an appointment of employees on the posts falling vacant or newly created in the Market Committee should be made, as far as possible, by giving promotion to the employees already in service with the Market Committee. Only in exceptional cases and for reasons to be recorded, direct selection by nomination is permissible. It is asserted by the petitioners that such candidates are available who are in service with respondent No. 1 Market Committee, and, hence the post of Secretary of the Market Committee ought to have been made by promoting one of such employees and yet the said action has not been taken. No reasons have been recorded why without taking recourse to Rule 46, respondent No. 5 was directly nominated and appointed as Secretary. Thus, even on that ground, the petition deserves to be allowed.

14. The matter did not end there. Even with regard to educational qualifications, in our view, the contention raised on behalf of the petitioners is well-founded and must be upheld. To repeat, Service Rules provide for educational qualifications. As per Rule 11, a Secretary must be either B.Sc. (Agri.) or B.Com. or B.A. (Economics) or LL.B. Though respondent No. 5 is B.Sc. admittedly he has not passed B.Sc. with Agriculture. No doubt, he is Master of Business Administration (MBA). It is also true that there is power of relaxation in the Service Rules. In our opinion, however, when eligible and qualified candidates are available, the said mode ought to have been adopted. By not taking into account and resorting to such mode prescribed in the Service Rules and by appointing respondent No. 5, the respondents have committed an illegality which cannot be said to be lawful or proper on the part of the authority which can be said to be "State" within the meaning of Article 12 of the Constitution.

15. It is also necessary to remember that under Rule 9 of the Service Rules, relaxation is permissible in case of a candidate "having higher qualification" and "having extraordinary experience in the Market Committee Movement". Even if the case of respondent No. 5 is that since he has passed B.Sc. as also MBA and thus he is having higher qualification, there is no material to show that he is "having extraordinary experience in Market Committee Movement". Higher qualification of MBA does not ipso facto covered by the connotation "having extraordinary experience in Market Committee Movement". No material has been placed on record that the second part of Clause (iv) of Rule 9(b) of the Service Rules has been attracted in the present case and respondent. No. 5 was appointed in exercise of the said power as the Market Committee was satisfied that respondent No. 5 was having "higher qualification" and "extraordinary experience in the Market Committee Movement". If it is so, obviously the action must be held to be inconsistent with the provisions of Rules and is liable to be set aside.

16. In the affidavit filed on behalf of respondent Nos. 1 and 2, it was stated that respondent No. 5 was performing functions and discharging duties very well, and hence, he has been appointed as Secretaiy and the said action deserves no interference. It was also stated that the entire procedure of appointment had been followed and undertaken, keeping in view the provisions of the Act, and the Rules as well as Service Rules and it is incorrect to state that respondent No. 5 was not eligible or qualified. According to the said respondents, Rule 46 of the Service Rules is not mandatory. A promotion, therefore, can be effected by deviating the Service Rules in appropriate cases. Age relaxation was, therefore, given to respondent No. 5 with the sanction of the Director as the fifth respondent was highly qualified and an expert.

17. It was also denied that respondent No. 5 was appointed at the behest of respondent No. 6. There was nothing to substantiate the bald assertion and vague allegations by the petitioners that the appointment has been made at the instance of respondent No. 6. It was also denied that respondent No. 3, District Deputy Registrar, has no power or authority to grant approval of filling up the post of Secretary by direct recruitment. It was also denied that the State Government had delegated the powers to respondent No. 4 and those powers could not further be delegated to respondent No. 3.

18. Respondent No. 3 has also filed an affidavit supporting the stand taken by respondent Nos. 1 and 2. It was stated that interpretation of Rule 46 of the Service Rules by the petitioners is not correct. The power of relaxation in educational qualification as well as in age in case of employees of the Committee had been re-delegated to District Deputy Registrar vide Government Notification dated 5th September, 1981 (Exh. 1 to the said affidavit). It was stated that the Committee was in need of effective management of affairs of the Market Committee, and keeping in view the educational qualification and experience of respondent No. 5, a decision was taken to appoint him as a direct recruit. Necessary sanction was, therefore, granted and the petitioners have no right to challenge it nor they can make grievance against such an action.

19. Respondent No. 5 has also filed an affidavit contending that his appointment is in consonance with law. Regarding his experience, he has stated that after completion and obtaining Degree in Master of Business Administration (MBA) in April, 1997, he had registered his name with the Employment Exchange. He had also started working with Suman Motels and Khandelwal Laboratory Limited as Manager in Administration Department and thus he has earned experience. Regarding the Service Rules, he had stated that the Rules had been complied with and the decision deserves no interference.

20. No affidavit has been filed by respondent No. 6 or 7.

21. In our opinion, since the eligibility and qualification are essential requirements under the relevant Service Rules, they have to be observed. In the case on hand, respondent No. 5 was sought to be appointed by direct recruitment. It was, therefore, obligatory on the authorities to consider whether his case was covered by the exception laid down in the relevant Service Rules. Admittedly, respondent No. 5 had crossed maximum age limit of 30 years. Moreover, he could not be said to be educationally qualified since he was only B.Sc. and not B.Sc. (Agri.). True it is that over and above B.Sc., he had cleared MBA, but then, he is not having experience which is necessary and which has been laid down in the Service Rules. Even according to respondent No. 5 himself, he has experience in Business Administration but not in "Market Committee Movement". As per the counter affidavit, he had worked initially with Suman Motels and then with Khandelwal Laboratory Limited.

22. In view of undisputed facts and provisions of the Service Rules, to us, it is clear that respondent No. 5 could not have been appointed as Secretary by direct selection. His appointment must, therefore, be held to be illegal and contrary to law, In view of the said finding, it would not be necessary for us to consider the allegations of malafide of respondent No. 6, though respondent No. 6 has not come forward denying such allegations by filing a counter.

23. As the petitioners were ex-Directors and members of respondent No. 1 Market Committee and as they possess licence for doing business in the Market Committee, in our view, they could have approached this Court by filing the present petition asserting that they are interested in proper administration of the Market Committee and contending that respondent No. 5 was not qualified and, hence, could not have been appointed as the Secretary of the Committee.

24. For the foregoing reasons, in our opinion, the petition deserves to be allowed and is accordingly allowed. An action of appointing respondent No. 5 as Secretary of respondent No. 1 Market Committee is held illegal and contrary to law and is hereby quashed and set aside. It is, however, open to the respondents to take appropriate action for appointing Secretary of respondent. No. 1 Market Committee in accordance with the law. Rule is accordingly made absolute. In the facts and circumstances, there shall be no order as to costs.

25. In view of the above order, no order on Civil Application.

Parties be given copies of this order duly authenticated by the Associate/Sheristedar/Private Secretary.