Bombay High Court
Rajesh Krishna Kale vs State Of Maharashtra, Through Its ... on 23 December, 2014
Bench: A.B. Chaudhari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 1228 of 2014
Petitioner : Rajesh Krishna Kale, aged about 31
ig years, resident of Waghbodi, Post
Gunthara, Tahsil and Dist. Bhandara
Versus
Respondents : 1. State of Maharashtra, through
Secretary, Department of Home,
Secretariat, Bombay 400032
2. District Collector, Bhandara
3. Sub-Divisional Officer, Bhandara
4. Anil Pandurang Badole, aged about
37 years, resident of Waghbodi, Post
Gunthara, Tahsil and Dist. Bhandara
Mr S. Borkar, Advocate for petitioner
Ms M. N. Hiwase, Asst. Govt. Pleader for respondents 1 to 3
Respondent no. 4 served
Coram : A. B. Chaudhari And P. R. Bora, JJ
Dated : 23rd December 2014
Judgment (Per P. R. Bora, J)
1. Rule. Heard forthwith by consent of parties.
2. Order dated 20th February 2014 passed by the Nagpur
Bench of the Maharashtra Administrative Tribunal (hereinafter
referred to as the "Tribunal") in Original Application No. 188 of
2013 is questioned in the present petition.
3. The present petitioner was appointed as Police Patil
for village Waghbodi, Post Gunthara, Tahsil and District Bhandara
vide appointment order dated 5.2.2013 issued by the Sub-
Divisional Officer, Bhandara. Respondent no. 4 herein challenged
the appointment of the petitioner on the post of Police Patil for said
village by filing Original Application before the Tribunal. Vide
impugned order, the Tribunal has allowed the said application by
setting aside the appointment of the present petitioner on the said
post.
4. Mr S. Borkar, learned counsel appearing for the
petitioner submitted that on an erroneous interpretation of the
Government Resolution dated 7.9.1999, the Tribunal has set aside
appointment of the present petitioner. Relying on the judgment of
the Division Bench of this Court in the case of Arun Tukaram
Patil v. State of Maharashtra & ors reported in 1999 (3) Mh. L.
J. 594, learned counsel urged that as held by the Division Bench in
the said judgment, holding of the land in one's own name is not a
requirement of eligibility in the matter of appointment as a Police
Patil under the Maharashtra Village Police Patils (Recruitment,
Pay, Allowances and Other Conditions of Service) Order, 1968
under regulation 3 (c), clause 5 (2).
5. Respondents no. 1 to 3 have not filed any reply in this
matter. Learned Assistant Government Pleader, however, pointed
out that in Original Application before the Tribunal, respondents
no. 1 to 3 have supported the appointment of the present petitioner
on the post of Police Patil.
6. Respondent no. 4 i.e. applicant in the Original
Application though has been duly served, has not appeared in the
matter.
7. We have carefully perused the impugned order. It is
quite clear that non-holding of land by the petitioner in his own
name is the main reason for setting aside his appointment as Police
Patil by the Tribunal. The Tribunal has held that holding of land in
one's own name as mentioned in the Government Resolution dated
7.9.1999 is mandatory. In paragraph 9 of the judgment, the
Tribunal has mentioned that Government Resolution dated
7.9.1999 was brought into force after repealing of the Maharashtra
Village Police Patil (Regulation) Rules, 1957 and the Maharashtra
Village Police Patil (Service, Appointment, Salary, Allowances
and Conditions of Service) Regulation, 1968. The Tribunal has
further stated that in the repealing provision, it was not mandatory
to hold the land in one's own name. However, facts so recorded by
the Tribunal factually appear to be incorrect. Learned counsel for
the petitioner has pointed that the Regulations of 1968 have not
been repealed nor the Rules of 1957 have been repealed. The
petitioner has specifically raised this contention by amending his
petition.
Learned Assistant Government Pleader conceded the
submission made on behalf of learned counsel for petitioner to the
effect that there is no such repeal as noted by the Tribunal in its
judgment. The petitioner has filed on record Government
Resolution dated 7.9.1999. We have carefully perused the contents
of the said Government Resolution. The Government Resolution
no where suggests that holding of land in own name is mandatory
for a person aspiring for appointment as Police Patil. This aspect
has been considered by the Division Bench of this Court in Arun
Tukaram Patil v. State of Maharashtra & ors (supra). In the
said judgment the Division Bench has clearly held that the
possession of landed property is not a criteria for eligibility to the
appointment as Police Patil. In the said case also the appointment
of petitioner was challenged and the Tribunal had set aside his
appointment on the ground that he did not possess landed property
in Motala village of which he was appointed as Police Patil. While
negating the conclusion so recorded by the Tribunal, this Court
unambiguously held that possession of the landed property is not
the criteria for appointment of a person as Police Patil under the
said Order of 1968. Even if it is assumed that in the Government
Resolution, as has been interpreted by the learned Tribunal, 'to
have a land in one's own name' is provided as a mandatory
eligibility criteria, the said Government Resolution cannot be in
any way has the over-riding effect on the statutory provisions of
Order of 1968.
8. In view of the above, the order passed by the Tribunal
is liable to be set aside.
9. The second objection raised before the Tribunal was
about the tenure of appointment as mentioned in the order of
appointment dated 5.2.2013. Taking support from the Government
Resolution dated 7.9.1999, it was urged before the Tribunal that in
no case the present petitioner could have been appointed as Police
Patil for a period of ten years. Learned Assistant Government
Pleader brought to our notice that as per the aforesaid Government
Resolution, appointment of Police Patil can be permitted upto the
period of five years and the said period thereafter can be extended
taking into consideration the performance of the person so
appointed. However, in view of the period restricted upto five
years in the aforesaid Government Resolution, it appears to us that
the petitioner could not have been appointed in one stroke for a
period of ten years. Thus, the order dated 5.2.2013 is required to
be modified to that extent.
10. For the reasons stated above, the following order is
passed :
ORDER
(i) Writ Petition No. 1228 of 2014 is partly allowed.
(ii) Impugned order dated 20.2.2014 passed by the
Maharashtra Administrative Tribunal in Original Application No.
188 of 2013 is set aside. However, it is made clear that
appointment of the present petitioner will be for the period of
maximum five years from the date of his appointment.
(iii) Rule made absolute in the above terms with no order
as to costs.
P. R. BORA, J
ig A. B. CHAUDHARI, J
joshi
