Bombay High Court
Mr. Desale Kiran Sureshrao And Ors vs The State Of Maharashtra, Through ... on 15 December, 2014
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9845 OF 2013
1 Mr. Desale Kiran Sureshrao
Age-28 years, R/o. Prachiti
Publicity, Shop No. 19,
Mahalaxmi Heights, Morwadi,
Pimpri, Pune 411 018
2 Mr. Kashid Vijay Balwant,
Shivneri, Plot No.1A, S. No.4,
Vijayaalankar Society,
Dhankawadi, Pune-411043
3 Mr. Pathan Shahidkha Basharatkha
Plot No. 42/39, Jagtik Bank
Vasahat, B & C quarters, near
Ssc Board, Usmanpura,
Aurangabad 431 001
4 Mr. Kadu Ramdas Anantha
A2, 301, Sr. No. 119/8/1,
Ankur residency, Motiram
Nagar, Cipla Foundation Road,
Pune-52
5 Mr. Tembhurne Abijit Duryodan
R/o. K. V. No. 292, Choukas Colony
Kamthi Road, Nagpur 440 014
6 Mr. Khot Swapnil Hanmantrao
Swapnadeep Niwas, Krushna Housing
Society, Trivendri Nagar,
Talawade-412 114
1/23
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7 Dondey Pankaj Prakash,
Survey No. 191, Nagpur Chaul,
Nagpurchaul, Jakatnaka, Near
Gurudwara and Church,
Yerawda, Pune
8 Waghmare Suvarna Prabhakar
Sushama Niwas, Sukhasagar
Nagar, Part-2, Survey No. 59,
Kondwa Budruk, Pune-46
9 Gunjal Atul Bhanudas,
Due Drops Society, C-Wing,
Flat No. 604, Vishrantvadi,
Alandi Road, Pune 411 015
10 Pardeshi Narendra Rajendra,
144, Kasaba Peth, Pune 411 011
11 Shinde Sagar Narayan,
Lane no.8, Private Road, Patra
Chaul, Lubini Nagar, Pune
12 Kadu Shital Laxman,
Flat No. 7, Trupti Vihar,
Jadhav Nagar, Vadgaon Budruk,
Pune
13 Devkate Vijay Jalindar,
354/1, Mula Nagar, Juni
Sanghavi, Pune
14 Shaikh Athik Ahemed Shaikh
Rashid, R/o. H. No. 7-3-962, Raja
Nagar, Itwara Kela Market, Nanded
15 Dhamdhare Pradnya Pradeep
At Post - Talegaon Dhamdhare,
Taluka-Shirur, Dist-Pune
2/23
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16 Ghogare Asmita Sainath,
C5-6, Suryakiran,
Premlok Park,
Dalvi Nagar Road, Chinchawad,
Pune
17 Jagtap Suresh Nima,
Flat No. 104, Jaiprabhakar Apt
Mangalmurti Nagar, Nashik Road,
Tal & Dist - Nashik
18 Kadu Atulkumar Pandurang,
R/o. Flat No. 7, Trupti Vihar,
Jadhavnagar, Vadgaonbudruk,
Pune
19 Dixit Chaitanya Ramesh,
R/o. Anant Colony, Behind
Behind PMC School, Varje,
Pune
20 Mr. Godge Umesh Chandrakant,
At Post - Chikhalthan,
Taluka-Karmala, District Solapur
21 Lakhe Dnyaneshwar Ramrao
R/o. S. No. 34/2, Plot No.43,
S. B. Park, Vidyanagar, Pune
22 Tilekar Swati Sunil,
R/o. Runal Bahar Society,
Flat No.D-5, Jai Wing,
Near Shammi Compound,
Nigadi, Pune
23 Pawar Suraj Chintaman,
R/o. Kaveri Apartment,
Flat No.7,
3/23
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Sinhgad Road, Vadgaon Budruk
Pune
24 Dipake Sandeep Sudhakar,
R/o. Post - Anturli, Taluka-
Muktai Nagar, Dist-Jalgaon
25 Kshirsagar Vikram Suresh,
S. No. 129/578, Dattawadi 999
Near Vijayshree Tower, Pune
26 Bhosale Yogesh Dnyaneshwar,
R/o. Survey No. 36/15, Vanrai
Colony, Dhankawadi, Pune
ig ... Petitioners
vs
1 The State of Maharashtra,
through Ministry of Urban
Development Department,
Mantralaya, Mumbai
2 The Pune Municipal Corporation
Shivaji Nagar, Pune
Through Commissioner,
3 Shashibushan Maruti Hole
Adult, Occu-Service,
R/at Urali Kanchan, Taluka-
Haveli, District-Pune 421 202 .... Respondents
Mr. A.A. Kumbhkoni, Senior Advocate with Mr. Amit B. Borkar for the
petitioners.
Mr. A.I. Patel, AGP for respondent No.1.
Mr. Abhijeet P. Kulkarni for respondent No.2.
Mr. Shashibhushan M. Hole, Respondent No.3 present in person.
4/23
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CORAM: ANOOP V. MOHTA AND
N.M. JAMDAR, JJ.
RESERVED ON : December 03, 2014
PRONOUNCED ON: December 15, 2014
JUDGMENT (Per Anoop V. Mohta, J.):
The Petitioners were selected by Respondent No.2-Pune
Municipal Corporation (PMC), as per the selection process and the
procedure so declared in the year 2012. Respondent No.1-State of
Maharashtra by order dated 20 September 2012, however, quashed
and set aside the whole selection process by accepting the case of
complainant/Respondent No.3 who was also named in the list dated
19 October 2011 of selected candidates for the appointment of Junior
Engineer (Civil) along with the Petitioners and 1394 others. On 24
June 2012 written tests were held. About 121 candidates were
passed. On 30 July 2012 those passed candidates were interviewed
by PMC. The list of final selected candidates dated 3 August 2013,
which includes the name of Petitioners and Respondent No.3 was
declared.
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2 Some complaints were lodged. On 31 July 2012, the
Vigilance Department of PMC submitted a report about the answer
sheet in respect of one Ketan Ramchandra Jadhav. On 2 August 2012,
the Deputy Commissioner submitted a report to the office of
Respondent No.2 stating that the inquiry report of Vigilance
Department concluded that there were no irregularities in the answer-
sheet of Shri Jadhav. The candidates were sent for a police
verification by letter dated 04.08.2012 and 07.08.2012. PMC by reply
dated 5 September 2012, on affidavit, placed on record as to how the
process so followed was within the frame of declared selection
process.
3 On 27 August 2012, Respondent No.3-Sashibhushan
Maruti Hole, filed Writ Petition bearing No.8160 of 2012 and
challenged the process of selection. This Court granted order of
status-quo with regard to appointments. The Petitioners filed Civil
Application No.615 of 2013 in Writ Petition No.8160/2012 to implead
themselves as Respondents. This Court on 10 April 2013 directed
PMC to keep one post vacant and to fill up remaining posts with the
candidates who were selected in the selection process and also
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directed to decide the representation.
4 On 2 May 2013, PMC requested Respondent No.1 (the
State) to pass appropriate orders as regards to process of selection.
On 6 May 2013, the State sent a communication to PMC as to why
process of selection which was subject matter of letter dated
01.08.2012 should not be cancelled by resorting to power under
Section 451 of the Bombay Provincial Municipal Corporation Act,
1949 (BPMC Act).
5 The Petitioners made representations dated 18.05.2013
and 21.05.2013 and requested PMC to implement order passed by
this Court dated 10 April 2013. On 29 May 2013, the Petitioners
again made a representation with the State pointing out the legality
of process of selection along with relevant documents. On 1 June
2013, the Petitioners made another representation to PMC to
implement order dated and appoint the Petitioners. However, on 11
June 2013, the State suspended the select list of Petitioners invoking
the power under Section 451 (1) of BPMC Act on the ground that
there was no confidentiality or transparency in the process of selection
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and the selection process affected the rights of other persons.
6 On 20 June 2013, in Writ Petition No.8160 of 2012, this
Court was of the opinion that in view of decision taken by the State,
the Writ Petition became infructuous and therefore rejected the same.
The Petitioners made several representations dated 1.7.2013, 4.7.2013
and 8.7.2013 to various authorities including Hon'ble Governor and
PMC for the implementation of the selected list. On 9 July 2013,
PMC submitted its say to the State and prayed for an appropriate
decision under Section 451 of BPMC Act. On 20 September 2013,
the Petitioners made representation for grant of an opportunity of
hearing also. The State without issuing notices to the Petitioners and
without considering documents submitted by the Petitioners rescinded
the select list and the waiting list on the ground that the process of
selection did not involve confidentiality and transparency. Hence, the
writ Petition.
7 The State filed reply on 18 July 2014 in this Petition.
Respondent No.3 filed reply and resisted the Petition by filing on
record the judgments in his support. PMC by vague reply dated 16
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July 2014 opposed the Petitioners case, by overlooking their earlier
affidavit dated 5 September 2012, supporting the case of the
Petitioners. In this affidavit, PMC has not dealt with the positive
averments so made in the Petition, and the earlier orders so passed by
the Courts. The self contradictory averments and the stand of PMC
could not have been the reason for impugned order.
The following judgments are cited by the parties :
(i) East Coast Railway and anr. v. Mahadev Appa Rao
and ors., (2010) 7 SCC 678
(ii) Order dated 20 June, 2013 in Writ Petition
No.8160/2012-Shri Shashibhushan Maruti Hole
v. Pune Municipal Corporation and ors (Division
Bench of Bombay High Court)
(iii) Bihar School Examination Board vs. Subhash
Chandra Sinha & ors., (1970) 1 SCC 648
(iv) Krishan Yadav v. State of Haryana, (1994) 4 SCC
(v) Union of India v. O. Chakradhar, decided on
19.02.2002 in Appeal (Civil) No. 1326 of 2002
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by G. B. Pattanaik & Brijesh Kumar JJ. of
Supreme Court.
(vi) Chairman, All India Railway Rec Board & anr v. K.
Shyam Kumar & Ors., decided on 6.05.2010 by
Aftab Alam & K. S. Radhakrishnan JJ of
Supreme Court in Civil Appeal Nos. 5675-5677
of 2007.
9 The judgment cited by Respondent No.3 are
distinguishable on facts and circumstances. No material placed on
record to show in the present case that there was a large scale of
irregularities and mal practices. [ Bihar school (supra) ] This is not
the case of proved leakage of question papers and/or selection
without interview of fabrication of record. [ Krishan Yadav(supra) ]
The Court is concerned with how the decision was reached by the
State; whether it is within the frame work of law and the record and
not in breach of principle of natural justice and the legitimate
expectation. We have also to see whether the action is malafide
and/or reflects arbitrariness; and the extent of illegalities and/or
irregularities committed in conducting the recruitment process.
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[Union of India (supra) ]-[ Chairman, All India Railway Rec Board
(supra) ]
10 The Apex Court in East Coast Railway (supra) , after
considering the complaint received from the unsuccessful candidate
recorded as under :
"16 Applying these principles to the case at hand
there is no gainsaying that while the candidates who
appeared in the typewriting test had no indefeasible or
absolute right to seek an appointment, yet the same
did not give a licence to the competent authority to
cancel the examination and the result thereof in an
arbitrary manner. The least which the candidates who
were otherwise eligible for appointment and who had
appeared in the examination that constituted a step-in-
aid of a possible appointment in their favour, were
entitled to is to ensure that the selection process was
not allowed to be scuttled for mala fide reasons or in
an arbitrary manner.
21 ...............Every State action must be informed by
reason and it follows that an act uninformed by
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reason, is arbitrary. The rule of law contemplates
governance by laws and not by humour, whims or
caprices of the men to whom the governance is
entrusted for the time being. It is trite that "be you
ever so high, the laws are above you". This is what
men in power must remember, always.
"28
That is not, however, the position in the instant
case. The order of cancellation passed by the
competent authority was not preceded even by a prima
facie satisfaction about the correctness of the
allegations made by the unsuccessful candidates leave
alone an inquiry into the same. The minimum that
was expected of the authority was a due and proper
application of mind to the allegations made before it
and formulation and recording of reasons in support of
the view that the competent authority was taking."
and ultimately directed as follows :
"34 The order passed by the High Court is to that
extent modified and the present appeals disposed of
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leaving the parties to bear their own costs. In order to
avoid any delay in the finalisation of the process of
appointments which have already been delayed, we
direct that the competent authority shall pass an
appropriate order on the subject expeditiously but not
later than two months from today."
The Court needs to see whether the allegations so made
and the doubts so raised/created with regard to the genuineness
and/or alleged illegality in the selection process as alleged are
sufficient to quash and set aside the whole process which, according
to the Petitioners and PMC was conducted by following all the
procedure. Mere allegations of mis-representation and/or bias
and/or conflict of interest and/or illegality and the candidates selected
were close relatives of the employees of PMC, are not sufficient to
dislodge the list published after following the due selection process.
Respondent No.3, admittedly appeared for the examination in the
subject selection process. He was unsuccessful candidate. Thereafter
he filed the Petition by raising issues including of bias and personal
interest without any supporting material. The allegations of
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manipulation, bias and/or malafide, if unsupported by evidence, just
cannot be used and looked to interfere with the process of selection,
taking care of transparency and confidentiality. In earlier Writ
Petition, PMC by an affidavit dated 5 September 2012 denied all
these allegations. The Petitioners were not made party in earlier
Petition, therefore, they filed the application and after hearing all the
parties, by keeping one post vacant, and observed to fill up the post
with the candidates who were selected. The Petitioners made various
representations to appoint being selected candidates, but in vain.
There was no question of invoking even power under Section 451 of
BPMC Act. However, PMC, inspite of above background, by
communication dated 15.05.2013 communicated to the State that
process of selection created confusion and became complicated and to
remove unnecessary confusion, submitted for an appropriate decision,
to give fresh opportunity to all the concerned. The Petitioners made
representations again on 18.05.2013, 21.05.2013 and 01.06.2013 to
implement order dated 10 April 2013 and pointed out that no
illegalities were committed in the process of selection. The State,
however, inspite of the court's orders and though there was no
specific finding and/or material to show and justify the allegations
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and also for the fact that there was no specific finding given after
inquiry even by the Commissioner (PMC) about the alleged
irregularities and/or discrimination and/or arbitrariness, suspended
the select list by invoking power under Section 451(1) of BPMC Act.
This was mainly on the vague reason that "there was no
confidentiality and/or transparency in the process of selection and
that affects the rights of such persons.". In view of above, Writ
Petition No.8160/2012 was disposed of on 20 June, 2013. The
pendency of a review against this order is of no consequence. The
Petitioners representations to implement the selection process
remained unattended. PMC on 9 July 2013, submitted its say to the
office of the State and prayed for appropriate decision. The State,
however, only because complaint was lodged and some confusion was
created, but without any contra material in support of the
irregularities and/or discrimination, under pressure and/or influence,
passed the impugned order and taken away the rights of the
Petitioners who were selected in due process of selection in
accordance with law and thereby deprived of their right to be
appointed based upon the select list on presumption & assumption.
This definitely caused injustice and hardship to the Petitioners apart
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from issue of `age bar' to apply again for the post.
12 Admittedly, no opportunity whatsoever was given to the
Petitioners as their various representations with detail supporting
material, to convince them that the process of selection was well
within the frame work of law and the record. There was no proved
irregularities. The process was fair and transparent. Invocation of
Section 451 of BPMC Act, in the present facts and circumstances, for
want of contra material, in our view, is unjust and impermissible.
There was no proved contravention of any selection process, the
doubts and the pressure so put in by Respondent No.3, cannot be the
sufficient reason to say that PMC acted in contravention of the
provisions of the Act or any declared policy of selection. There was no
wastage of municipal funds. The selection process cannot be stated to
be against the interest of public. The cancellation of selection list and
the order inviting fresh applications, in our view, is not within the
frame work of power under Section 451 of BPMC Act. The doubts
and/or the pressure from outsiders cannot be the reason to invoke
Section 451 of BPMC Act when there is no contra material placed on
record and specifically by overlooking the material and the earlier
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affidavit dated 5 September 2012 so placed on record by PMC, that
since beginning that they had followed the due procedure of law and
there was no illegality. Therefore, the impugned order is beyond the
scope and power of Section 451 of BPMC Act and needs to be
interfered with.
13 The allegations made by the Complainant/Respondent
No.3 and the filming made during preparation of examination paper
instead of taking it in favour of the transparency used as an additional
ground to quash and set aside the selection list, in our view, is also
incorrect and improper way of dealing with the issue subject. The
selection process cannot be disturbed and/or cancelled which affects
the rights of the selected candidates of the year 2012. The action, if
proved illegal or irregular, unfair, Respondents 1 and 2 are under
obligation to take the decision in accordance with law, but not by
overlooking the positive reports material in favour of the transparent
selection process, merely to show their clear image to the people at
large, based upon assumptions and presumptions. (Union of India &
Ors. Vs. Rajesh P.U., Puthuvalnikathu & Anr.) 1 This is in the
1 (2003) 7 SCC 285
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background that this Court by order dated 10 April 2013 specifically
directed the Respondents 1 and 2 to appoint all the selected
candidates by keeping one post vacant, but instead of that
Respondents 1 and 2 delayed the implementation. No challenge was
made to this order by anyone.
14 Merely because some relatives of employees of PMC were
selected that itself cannot be the reason to overlook the fact, that
1393 candidates participated and after following the due procedure
and selection process, the Petitioners and such other candidates were
selected. There is no bar that the relatives of employees should not
participate in such selection process and/or apply for the post so
advertised. (Girjesh Shrivastava & Ors. Vs. State of Madhya Pradesh &
Ors.) 1
15 The marking system as averred, in the reply by PMC was
quite intact. Mr. Jadhav or any other officer, of Establishment had no
role in the written examination. The role of officials from the
Establishment was limited to the extent of making available the place
1 (2010) 10 SCC 707
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for examination and give direction to the candidates and sent orders
for appointment of Controller of Examination and the Supervisor etc.
This positive averments remained uncontroverted for want of contra
material. The entire selection process divided into two parts, one was
administrative and the other was actual process of selection. The
different officials and officers and other staff were involved. There
was no case of any mal practice and/or advance un-sealed of
envelopes of examination. All the process of examination procedure
started and finished as per the advertisement. Inspite of notice, the
officer from the Employment Exchange and Social Welfare
Department was absent on the date of examination that itself cannot
be the reason to declare the entire process of selection void and/or
vitiated. The issue of reserved candidates, even if any, was a different
facet and nothing to do with the complaint so filed and cannot be
gone into at the instance of the Petitioners. The concerned candidates
may raise such dispute, if any. The preparation of list was well within
the power and jurisdiction of the members Committee, therefore,
ought not to have been interfered on suspicion, only at the instance of
vague complaint filed by Respondent No.3. This communication by
PMC dated 15.05.2013 just cannot be read in isolation by overlooking
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the affidavit so filed in Writ Petition No.8160/2012 dated 5 September
2012, specifically when PMC never accepted and/or Respondent No.3
able to prove any defect and/or irregularities and untransparency in
selection process in question except bald averments.
16 The earlier stand of PMC in affidavit dated 5 September
2012 supported by the documents, including Vigilance Department's
report stating that there were no irregularities happened during the
process of conducting examination. They have unanimously concluded
that there was no illegality and/or irregularity; and the process was
valid. Respondents 1 and 2 are under obligation if allegations are
proved, then only needs to take appropriate action in accordance with
law and not under undue influence of the alleged complaint and/or
private views of the party one who had participated in the proceedings
without any objection.
17 The question is not of right to the Petitioners to claim
appointment to the post being in the selected list, but the question is
the decision taken by the State Government by invoking Section 451
of BPMC Act and to cancel the entire selection process, based upon
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the unproved material and only to avoid apprehension/suspicion of
unnecessary allegations. This is not a case of any fraud but a case of
unproved charges of irregularities. The question is also not of
prejudice to the Petitioners. The question is of taking such drastic
action by the State on unsupported allegations and doubts so raised
specifically when there are no sufficient material on record to show
that the due process of selection was not followed. This is not a case
of breach of peace or to cause injury or annoyance to the public or
shake public confidence or any class or body of persons which
compelled the State to take such decision. It is expected from
Respondents 1 and 2 to act within the frame of law and the record
and not influenced or affected by extraneous pressure/allegations.
The impugned order is passed in undue haste, without applying the
mind to the record. Therefore, the order of the State rescinding the
select list and of 35 candidates and waiting list 11 candidates is
illegal, improper and bad in law.
18 By impugned order dated 20 September 2013, the State
declared that the entire process of selection of Junior Engineers (Civil)
is vitiated and decided to hold examination again. Because of the
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earlier interim orders passed by this Court, thereby restrained the
Respondents to implement/execute the selected list of candidates,
including of the Petitioners, PMC was unable to complete the process
of appointment within one year. This itself, in our view, cannot be
the reason to deny the appointment based upon the selection list in
question. The theory of lapse of list within one year, in the present
facts and circumstances, in our view, is not applicable.
19 We are inclined to observe that there is no procedural
illegality and/or infirmity of such grave nature which requires to scrap
the list. The selection procedure so adopted was well within the
frame work of law and the record which needs no interference on the
basis of apprehended unnecessary confusions on the complaint filed
by Respondent No.3. The State's action/order is unsustainable as
acted on in impulse and mechanically and arbitrarily.
20 In view of above, the following order :
ORDER
a) Impugned order of Respondent No.1 dated
20.09.2013 is quashed and set aside.
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b) We direct Respondents 1 and 2 to proceed to
complete without further delay the process of
recruitment/appointment based upon the list in
question and pass appropriate orders for the same
as early as possible, and preferably within eight
weeks from today.
c) The Writ Petition is accordingly allowed and rule is
made absolute accordingly.
d) There shall be no order as to costs.
(N. M. JAMDAR, J.) (ANOOP V. MOHTA, J.)
