Bombay High Court
Bhavikkumar Shriramji Tandale vs State Of Maharashtra on 21 December, 2012
Bench: B.R. Gavai, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2686/2010.
1. Bhavikkumar Shriramji Tandale,
Age - Major
r/o At Dodki, Post Kondhali,
Tq. Katol, Distt. Nagpur.
2. Bhojraj s/o Ganesh Machhale,
Age - Major
r/o At Pwangaon, Post, Kapsi,
via Badaganj, Tq. Kamthee,
Distt. Nagpur.
3.
Praful s/o Uttamrao Changule,
Age - Major,
r/o Dahigaon/Recha,
Tq. Anjangaon Surji, Distt. Amravati.
4. Yogesh s/o Vitthalrao Durudkar,
Age - Major,
r/o Plot No. 64, Shrikrishna Nagar,
Main Road, Near Electric DP,
Wathoda Layout, Nagpur-09.
5. Vinod s/o Ganpat Madavi,
Age - Major,
r/o Khairi, Tq. Sakoli,
Distt. Bhandara.
6. Amar Domaji Shambharkar,
Age - Major,
Pose Hingoli, Tq. Selu,
Distt. Wardha.
7. Jyoti Wasudeo Shrirame,
Age - Major
r/o 384, Sanjay Gandhi Nagar,
Ring Road, Uday Nagar Chowk,
Post Ayodhya Nagar, Nagpur.
8. Smt. Deversha Suresh Ramteke,
Age - Major,
r/o C-3, Mulik Complex,
Near Centre Point Hotel,
Wardha Road, Nagpur.
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9. Kalpana Balkrishna Bangalkar,
Age - Major,
r/o Nipartala (Paalaspani)
Post Tanduri, Tq. Sakoli,
Distt. Bhandara.
10. Tejram Mahadeo Khandait,
Age - Major,
r/o Palandur, Tq. Lakhani,
Distt. Bhandara.
11. Mahendr s/o Vilas Wagh,
Aged about ____ years,
c/o S.D. Mundhe, Plot No.77,
Shaktimata Nagar, Kharbi Road,
Nagpur-9.
12.
Rajaram s/o Tilakchand Shribhadri
Age - Major
r/o c/o Ghanshyam Shribhadri,
Near Primary School, Chhota Gondia,
Gondiya, Distt. Gondia.
13. Vishal Parshuram Doke
Age - Major
r/o c/o Rajesh Khandare,
Jai Nagar, Pathrabodi, Ramnagar,
Nagpur-23.
14. Bhaskar Devaji Bhagat,
Aged about 39 years,
r/o Plot No. 123, Mahalaxmi Nagar,
Manewadad Road, Nagpur.
15. Smt. Pratibha Digambar Dahikar,
Age - Major,
r/o Shashtri No.8,
Pandharkawada, Tq. Kelapur,
Distt. Yavatmal.
16. Smt. Lalita Madanlal Ambule,
Age - major,
r/o 61-B, Near Shobha Patel's House,
Kawla Peth, Itwari, Nagpur.
17. Milind Duryodhan Moon,
Aged about 45 years,
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r/o Shivapur, Tq. Bhiwapur,
Distt. Nagpur.
18. Smt. Vaishali Mahadeo Kharode,
Age - Major,
c/o Ramesh Dinkar Wagh,
Garakunj Nagar, Tq. Shegaon,
Distt. Bhandara.
19. Priya Madhukar Shamkunwar,
Age - Major,
r/o c/o Narendra K. Goswami
Bawanthadi Colony Road,
Vinoba Nagar, Tumsar,
Distt. Bhandara.
20. Prashant Surendranath Bhagat,
Age - Major,
r/o Bhimnagar Ward,
Tq. Hinganghat, Distt. Wardha.
21. Ku. Ranjana Deonathji Naik,
Age - Major
c/o Dilip Kachruji Nagdevte,
14, Telephone Nagar, Umred Road,
Dighori, Nagpur.
22. Arun s/o Shriram Rathod,
Age - Major
r/o at post Rohda, Tq. Pusad,
Distt. Yavatmal.
23. Dattakumar s/o Gowardhan Sonawale,
Age - Major
r/o c/o Ashok Londekar,
Swawlambi Nagar, Nagpur. ....... PETITIONERS
...V E R S U S...
1. State of Maharashtra, through its Secretary,
Public Health & Medical Education,
Mantralaya, Mumbai-18.
2. The Dean & Chairman Selection Committee
Govt. Ayurvedic College & Hospital,
Raje Raghuji Nagar, Umred Road,
Nagpur-44 024.
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3. Director of Ayurvedic
4th floor Sent Jorjesh
Hospital Premises Pee Demelo Road,
Fort, Mumbai-40001. ....... RESPONDENTS
WRIT PETITION NO.3075/2010.
Smt. Bharti Ravi Kashte,
Age - Major
r/o Plot No. 144/3,
Somwari Peth, Nagpur,
Distt. Nagpur. ....... PETITIONER
...V E R S U S...
1. State of Maharashtra, through its Secretary,
Public Health & Medical Education,
Mantralaya, Mumbai-18.
2. The Dean & Chairman Selection Committee
Govt. Ayurvedic College & Hospital,
Raje Raghuji Nagar, Umred Road,
Nagpur-44 024.
3. Director of Ayurvedic
4th floor Sent Jorjesh
Hospital Premises Pee Demelo Road,
Fort, Mumbai-40001. ....... RESPONDENTS
Mr N. R. Saboo, Advocate for petitioners in both petitions.
Ms Bharti Dangre, Addl. Government Pleader for respondents in both
petitions.
Coram : B. R. Gavai and A. P. Bhangale, JJ
Dated : 21st December 2012
Oral Judgment (Per B. R. Gavai, J)
1. Petitioners challenge common judgment and order dated
24.2.2010 passed by the Maharashtra Administrative Tribunal, Nagpur
Bench, Nagpur in Original Applications No. 261 of 2009 to 288 of 2009
dismissing the said original applications. The petitioners had challenged
order dated 24.4.2009 issued by respondent Dean and Chairman,
Selection committee, Ayhurvedic College & Hospital, Nagpur, thereby
terminating their services with effect from 24.4.2009.
2. The facts, in brief, giving rise to the filing of these petitions are
as under :
That, respondent no. 2, after approval of respondent no. 1,
had advertised total 35 posts as under :
Sr.No. Name of Post No. of Pay-scale
Posts
1. Peon 4 2550-55-2600-60-3200
2. Ward Attendant 25 2550-55-2600-60-3200
3. Asst. Cook 2 2550-55-2600-60-3200
4. X-Ray Assistant 1 2550-55-2600-60-3200
5. Ras-shala Sevak 1 2550-55-2600-60-3200
6. Washerman 1 2610-60-2910-65-3300-70-4000
7. Barber 1 2610-60-2910-65-3300-70-4000
In the advertisement, the reservation for various categories like
Scheduled Caste, Scheduled Tribe, Other Backward Classes, Physically
challenged persons, ex-serviceman etc. was provided. So also, the
advertisement provided for vertical and horizontal reservation for various
categories. In pursuance to the selection process, the petitioners came to
be selected on various posts. Needless to state that the said selection
process consisted written examination so also oral examination. Between
the period July 2008 and October 2008, the appointment orders came to be
issued in favour of various petitioners who accordingly joined the service.
In the mean-time, one Original Application being OA No. 353 of 2008
came to be filed by one Mukesh Bhaurao Dhoke challenging the selection
of one Gajanan Jagoji Bhalavi. It is needless to state that there was no
challenge to the entire selection process in the said Original Application. In
the said Original Application, an affidavit dated 2nd April 2009 came to be
filed by the Secretary, Medical Education & Drugs Department,
Government of Maharashtra justifying the selection process. However, it
appears that subsequently, respondent no. 1 filed additional affidavit dated
9.4.2009, thereby stating that the Government had dedcided to cancel the
entire selection process and initiate the selection process afresh. In that
view of the matter, the said Original Application was disposed of vide order
dated 15.4.2009. On the basis of statement made by the Government,
respondent no. 2 Dean passed an order terminating the services of the
petitioners. Being aggrieved thereby, the aforesaid original applications
came to be filed before the learned Tribunal. Learned Tribunal vide order
dated 24.2.2010 dismissed the original applications. Being aggrieved
thereby, the present writ petitions have been filed.
3. Heard Mr N. R. Saboo, learned counsel for the petitioners and
Ms Bharti Dangre, learned Additional Government Pleader for respondents
in both the petitions.
4.
Learned counsel for the petitioners submits that petitioners
were appointed after following due selection process as prescribed by law.
It is submitted that the petitioners had appeared in the written examination
and after they had cleared the written examination, they were called for
oral interview, and after they cleared oral interview, they came to be
selected and subsequently appointed. Learned counsel, therefore, submits
that cancelling the appointment orders which were issued in favour of the
petitioners without even giving them an opportunity of being heard, is
totally in contravention of the principles of natural justice. Learned
counsel, therefore, submits that the impugned order passed by the learned
Tribunal as also termination orders in question are liable to be quashed and
set aside. Mr Saboo, in support of his contention, relies on the following
judgments of the Apex Court :
(1) AIR 2003 SC 4222
Union of India & ors v. Rajesh and anr
(2) AIR 2006 SC 2571
Inderpreet Singh Kahlon & ors State of Punjab & ors
(3) (2010) 10 SCC 197
A.M. S. Sushanth & ors v. M. Sujatha & ors
(4) (2010) 10 SCC 707
Girjesh Shrivastava & ors v. State of MP & ors
5. Ms Bharti Dangre, learned Additional Government Pleader, on
the contrary, submits that in the advertisement, the Authorities ought to
have provided for postwise reservation. Learned Addl. GP submit that
since the Constitutional reservations were not provided post-wise, the
entire selection process was not sustainable. She submits that since the
entire selection process was tainted, there was no question of giving
opportunity of being heard to the petitioners. Learned Additional
Government Pleader submits that the selection process which was
conducted earlier was in contravention of the provisions contained in the
Government Resolution dated 5th November 2009 and as such, no error
could be found with the order passed by the learned Tribunal.
6. There is no dispute regarding the factual position. The
appointment of the petitioners was done after they had cleared in the
selection process which consisted of written examination as well as the oral
examination. Not only this, in the affidavit which was filed before the
learned Tribunal by the Secretary, Medical Education and Drugs
Department on 2nd April 2009, it was categorically stated thus :
"4. I say and submit that it is apparent from the records that a total of
2469 candidates applied in response to the Advertisement from
various categories, 95 from Adivasi Prakalpa and 353 from
Employment Exchange thus taking the final total to 2917 applications.
Even if the initial advertisement had declared postwise reservation,
the respondents feel that the total number of applicants would not
have changed to a great extent. After the declaration of the result of
Written Test, the selection Committee called candidates for interview.
It is before the interview that the Committee gave an opportunity to
the candidates to fill up a Preference Form for giving choices for
various posts to be offered on merit. The procedure to a great extent
reduced the chances of grievance that the candidates could not apply
according to the reservation for a particular post. The Applicant opted
for the Rasshala Sevak as a first choice and "Sepoy" as second choice.
However despite this privilege of preference, the post of Rashsala
Sevak having been reserved for S. T., the petitioner could not be
considered for this post. Moreover not being in merit in his category
of SC, he could not be offered any post of "Sepoy" reserved for S. C.
category candidates. The Applicant's major grievance is that a person
with no experience of having worked as Rasshala Sevak has been
selected. His contention that only he
had the experience and must be selected to Rasshala Sevak's post does
not make him eligible for a specific category (S. T.) post to which he
does not belong."
7. It can thus be clearly seen that it was a specific stand of the
State Government in Original Application No. 353 of 2008 that in all 2469
candidates had applied in response to the advertisement from various
categories and including 95 applicants from Adivasi Prakalpa and 353
from Employment Exchange, final total was taken to 2917 candidates.
Not only this, it was categorically stated that the candidates were given
opportunity to fill up Preference Form for giving choices for various posts.
Perusal of paragraph 3 of the said affidavit would reveal that a
corrigendum was also published mentioning post-wise reservation.
However, subsequently, within five days of the said affidavit, the
Government had changed its stand and had filed additional affidavit dated
9.4.2009 thereby stating therein that since the selection process was
irregular, the same was cancelled and it was decided to start the selection
process de novo.
8. It is thus clear that the decision of the Government to cancel
the earlier selection process and start selection process de novo, is only on
the ground of an irregularity of not providing the post-wise reservation in
the first advertisement. We have already reproduced hereinabove details of
posts and number of vacancies to be filled in as per the advertisement. It
could be seen that out of 35 posts, 33 posts are carrying one and the same
pay-scale viz. Rs. 2550-55-2600-60-3200 and the pay-scale differs slightly
in case of two posts only. Perusal of the advertisement would further
reveal that it showed vertical and horizontal reservation for all categories.
Not only this, but as many as 2917 applicants had responded to the said
advertisement and none of them found any fault with the advertisement.
It is further to be noted that in Original Application No. 353 of 2008 there
was no ground regarding the advertisement being not proper. The said
original application was filed only with a grievance that one person who
was appointed as Ras-shala Sevak was not having requisite experience. In
that view of the matter, we are of the view that there was no irregularity
in the advertisement.
9. The Government Circular dated 5th November 2009, in our
view, also would not come to the help of the Government inasmuch as the
said Circular no where provides that post-wise reservation has to be
provided and in the absence thereof, the selection process would stand
vitiated. Perusal of the number of posts would reveal that it would have
been rather difficult to provide for postwise reservation inasmuch as some
of the posts were singular posts. In that view of the matter, providing
reservation for the entire number of posts which were carrying more or less
the same pay-scale, in our view, cannot be faulted with. In any case, we
are of the considered view that even assuming for a moment that there was
an irregularity, it was not of such a nature which would have vitiated the
entire selection process.
10. The Apex Court in Union of India & ors v. Rajesh P. U. and anr
(supra) had an occasion to consider similar issue. In the said case, there
were allegations regarding mal-practices. Inspite of that the entire
selection process was quashed and set aside. The Apex Court set aside the
decision by observing thus :
"6. On a careful consideration of the contentions on
either side in the light of the materials brought on record,
including the relevant portions of the report said to have
been submitted by the Special Committee constituted for the
purpose of inquiring into the irregularities, if any, in the
selection of candidates, filed on our directions - which
report itself seems to have been also produced for the
perusal of the High Court, there appears to be no scope of
any legitimate grievance against the decision rendered by
the High Court. There seems to be no serious grievance of
any malpractices as such in the process of written
examination- either by the candidates or by those who
actually conducted them. If the Board itself decided to
dictate the questions in loud speaker in English and Hindi
and none of the participants had any grievance in
understanding them or answering them, there is no
justification to surmise at a later stage that the time lapse in
dictating them in different languages left any room or scope
for the candidates to discuss among them the possible
answers. The posting of invigilators for every ten
candidates would belie any such assumptions. Even that
apart, the Special Committee constituted dos not appear to
have condemned that part of the selection process relating
to conduct of written examination itself, except noticing
only certain infirmities only in the matter of valuation of
answer sheets with reference to correct answers and
allotment of marks to answers of some of the questions. In
addition thereto, it appears the Special Committee has
extensively scrutinized and reviewed situation by re-
evaluating the answer sheets of all the 134 successful as
well as the 184 unsuccessful candidates and ultimately
found that except 31 candidates found to have been
declared successful though they were not really entitled to
be also declared successful and selected for appointment.
There was no infirmity whatsoever in the selection of the
other successful candidates than the 31 identified by the
Special Committee. In the light of the above and in the
absence of any specific or categorical finding supported by
any concrete and relevant material that widespread
infirmities of all pervasive nature, which could be really said
to have undermined the very process itself in its entirety or
as a whole and it was impossible to weed out the
beneficiaries of one or other of irregularities, or illegalities,
if any, there was hardly any justification in law to deny
appointment to the other selected candidates whose
selections were not found to be, in any manner, vitiated for
any one or other reasons. Applying an unilaterally rigid and
arbitrary standard to cancel the entirety of the selections
despite the firm and positive information that except 31 of
such selected candidates no infirmity could be found with
reference to others, is nothing but total disregard of
relevancies and allowing to be carried away by irrelevancies,
giving a compete go bye to contextual considerations
throwing to winds the principle of proportionality in going
further than what was strictly and reasonable required to
meet the situation. In short, the Competent Authority
completely misdirected itself in taking such an extreme and
unreasonable decision of cancelling the entire selections,
wholly unwarranted and unnecessary even on the factual
situation found too, and totally in excess of the nature and
gravity of what was at stake, thereby virtually rendering
such decision to be irrational."
In the said case, the Supreme Court has also referred to the
doctrine of proportionality which has now been accepted by the Indian
courts. In the said case, the Apex Court held that the action taken was not
proportionate to the irregularity alleged. We find that the factual position
in the present case is almost identical.
11. In the case of Inderpreet Singh Kahloon & ors v. State of Punjab
& ors (supra), inspite of the fact that there was an allegation of large-scale
fraud being made in the selection process, the Apex Court had set aside the
decision of the Government resorting to the cancellation of all the
appointments en masse by treating unequals as equals. The Apex Court in
the said case observed thus :
"Undoubtedly, in the selection process, there have been
manipulations and irregularities at the behest of the then
Chairman, Punjab Public Service Commission. But, on careful
scrutiny of the facts and circumstances of the case, the High Court
ought to have made a serious endeavour to segregate the tainted
from the non-tainted candidates. Though the task was certainly
difficult, but by no stretch of imagination, it was not an impossible
task. The Government, instead of discharging its obligation,
unjustly resorted to the cancellation of all the appointments en
masse by treating unequals as equals without even prima facie
examining their cases. This is clearly arbitrary and
unconstitutional."
It can thus be clearly seen that even in the case of selection
process which was alleged to have been conducted with serious mal-
practices, the Apex Court has held that en masse cancellation of
appointments was not permissible and effort ought to have been made to
weed out tainted from non-tainted candidates.
12. In the case of Girjesh Shrivastava & ors v. State of MP & ors
(supra), some relatives of the members of Selection Committee were
permitted to take part in the selection process. It was also alleged that
there were some illegal beneficiaries in the said illegal process. Even in
that factual background, the Apex Court observed thus :
26. From these facts it can be concluded that the alleged
participation of near relatives in the selection process was not
such a factor as to vitiate the entire selection process. Even if
there were some illegal beneficiaries from the selection process,
they should have been weeded out instead of striking down the
entire selection process.
27. In Charanjit Sing v. Harinder Shara a similar situation had
arisen. In that case, while not approving the interference of the
High Court in the selection process, this Court held that merely
because some of the candidates in the selection process
happened to be relatives of the members of the Selection
Committee, it did not mean that all the candidates were
relatives of the members of the Selection Committee and had
been illegally selected. It was also held that since the petition
was not made by any of the candidates who had appeared in the
selection process and was instead fled as a public interest
litigation, it was improper for the High Court to interfere in the
matter."
13. In the present case, the second affidavit which is filed only
refers to an irregularity in the selection process. As has already been
discussed by us, the said irregularity is the one of not providing the post-
wise reservation. There is no allegation of either any mal-practices or any
candidate having been illegally selected and appointed with some ulterior
motive. In that view of the matter, we find that the decision of the
Government to cancel earlier selection process was not sustainable in law.
The candidates who had gone through the process of written examination
as well as the oral examination and who were validly appointed, could not
have been terminated on account of alleged irregularity which, according
to us, is not an irregularity and even if it is presumed to be an irregularity,
it was not of such a nature which would vitiate the entire process of
selection process.
14. In that view of the matter, petitions succeed. Rule is made
absolute in terms of prayer clause (i) and (ii) of the petitions.
15. The respondents are directed to reinstate the petitioners within
a period of fifteen days from today to the posts which were occupied by
them prior to their termination. Petitioners will be entitled to continuity in
service for all purposes. However, the petitioners would not be entitled to
the back-wages for the period during which they were out of employment.
A. P. BHANGALE, J B. R. GAVAI, J
joshi
