Bombay High Court
Rajkumar Radhakishan Dhage And ... vs The State Of Maharashtra And ... on 29 October, 2015
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1330 OF 2014
1. Ashok S/o Manikrao Shinde,
Age : 38 years, Occu. : Nil,
2. Laxman s/o. Ganeshrao Khating,
Age : 32 Years, Occu. : Nil,
3. Vijay s/o. Manchakrao Shinde,
Age : 33 Years, Occu. : Nil,
4. Praklapgrast Shekari Kruti Samittee,
Vasantrao Naik Marathwada Krushi,
Vidyapeeth, Parbhani,
Through its president
Ashok s/o. Baburao Salgode,
Age : 41 years, occu: President,
Project Affected Persons Committee,
M.K.U. Parbhani.
All R/o Parbhani,
Tq. & Dist. Parbhani. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Department of Agriculture,
Mantralaya, Mumbai - 32.
2. The Commissioner,
Aurangabad Division,
Aurangabad.
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3. The Collector,
Collector Office, Parbhani.
4. The Vasantrao Naik Marathawada
Agricultural University, Parbhani,
Through its Registrar.
5. The Registrar,
The Vasantrao Naik Marathwada
Agricultural University Parbhani. .. Respondents
Shri S. K. Chavan, Advocate for Petitioners.
Shri S. S. Tope, A.G.P. for Respondent Nos. 1 to 3.
Shri M. N. Navandar, Advocate for Respondent Nos. 4 and 5.
WITH
WRIT PETITION NO. 9450 OF 2014
1. Rajkumar S/o. Radhakishan Dhage,
Age:- 33 years Occu:- Labour,
2. Datta s/o Venkatrao Dhage
Age 35 years Occu:- Labour
3. Jalba S/o Kinshan Jondhale
Age 29 years Occu:- Labour
4. Narayan S/o. Laxman Dhage
Age:- 29 Years, Occu:- Labour
5. Ram S/o. Narayan Jondhale
Age:- 26 Years, Occu:- Labour
6. Dadarao S/o. Jalbaji Jondhale
Age:- 35 Years, Occu. :- Labour
Petitioner Nos. 1 to 6 R/o Shendra,
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Tq. & Dist. Parbhani.
7. Amol S/o Kondibarao Garud,
Age 27 years Occu:- Labour
R/o Pngli Tq. & Dist. Parbhani. .. Petitioners
Versus
1. The State of Maharashtra,
Through Secretary,
Agriculture, Animal Husbandry,
Dairy Development & Fisheries
Department Mantralaya
Mumbai - 32.
2. The Collector, Parbhani.
3. The Registrar,
Late Vasantrao Naik Marathwada
Agricultural University, Parbhani,
Dist. Parbhani. .. Respondents
Shri P.B. Patil, Advocate for Petitioners.
Shri S. S. Tope, A.G.P. for Respondent Nos. 1 and 2.
Shri M. N. Navandar, Advocate for the Respondent No. 3.
CORAM : S. V. GANGAPURWALA
V. K. JADHAV, JJ.
Date on which Closed for Orders : 12/08/2015
Date on which Order Pronounced : 29/10/2015
JUDGMENT (Per S. V. Gangapurwala, J.) :-
. The writ petitions are based on similar set of facts and
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involve common question of law, as such are decided together.
2. Rule, Rule made returnable forthwith. With the consent of
parties, taken up for final hearing.
3. The petitioners in these writ petitions are Project Affected
Persons. The lands of the petitioners are acquired for
establishment of respondent/Vasantrao Naik Marathwada
Agriculture University, Parbhani.
4. On 15.07.2009, the State Government issued directions to
all the Agriculture Universities to fill in not less than 50% of the
posts of Group - C and Group - D from the project affected
persons, so that at least 50% of the project affected persons can
be given employment. Thereafter, the advertisement was
published on or about 28.08.2009 by the respondent university
for filling up the posts of Class - III and Class - IV categories
from project affected persons category giving 50% reservation for
project affected persons of the said university. The selection
process was undertaken, however, the recruitment process was
not completed and abruptly issued subsequent advertisement to
fill up only 5% posts from the project affected persons category.
The same is pursuant to the communication issued by the
respondent/State dated 21.08.2013 thereby conveying that,
reservation to the project affected persons should not be more
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than 5%. The petitioners are seeking cancellation of
advertisement dated 25.11.2014 and 04.12.2014 issued by the
respondent university for fresh recruitment, wherein only 5%
posts are meant for project affected persons category. So also
assailing the letter dated 01.11.2013 i. e. the decision taken at the
secretarial level cancelling the advertisement dated 15.07.2009.
5. Shri Chavan and Mr. Patil, the learned counsel for
respective petitioners submit that, majority of the persons whose
lands have been acquired for the establishment of the
respondent/university have participated in the selection process
pursuant to the advertisement dated 26.08.2009. According to
the learned counsel, there are 561 posts for the project affected
persons lying with the respondent university. Vide
advertisement dated 26.08.2009, 231 posts are to be filled in.
The advertisement issued was perfectly as per provisions of Sec.
6(c) of the Maharashtra Project Affected Persons Rehabilitation
Act, 1999 (hereinafter for the sake of brevity referred to as
"Rehabilitation Act of 1999"). The learned counsel submit that,
the decision of the respondent/state to grant reservation of 5%
only is not in consonance with Sec. 6(c) of the Rehabilitation Act
of 1999. Sec. 6(c) of the Rehabilitation Act of 1999 enables the
State to fill up not less than 50% seats from the project affected
persons of the same project by which they are affected. The
lands of the petitioners are acquired for the project of
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respondent/university i. e. for the establishment and setting up of
the respondent/university. It is erroneous on the part of the
respondents to state that the reservation for such project affected
persons cannot exceed 5%. The 50% of the Class - III and Class -
IV posts can be filled from the project affected persons of the
same project. The learned counsel submit that, the recruitment
process initiated vide advertisement dated 26.08.2009 is almost
complete and only appointment orders were required to be
issued. The act of respondents in abandoning the said
recruitment process and issuing fresh advertisement, moreover,
by reserving only 5% posts for the project affected persons is
erroneous and deserves to be set aside.
6. Mr. Navandar, the learned counsel for the
respondent/university submits that, advertisement dated
26.08.2009 was issued by respondent/university as a special drive
for the project affected persons in view of the circulars of the
State Government. As per the Maharashtra Agricultural
Universities (Krushi Vidyapit) Act 1983 and the Statute of 1990,
more particularly Sec. 54, the total control over the university is
of the State Government including creation of posts, grant of pay
scale, allowances, directives as regards to service rules,
reservation, recruitment, etc. The directions of the State
Government are to be followed in that regard. The learned
counsel submits that, as per Sec. 10(6)(a) of the Rehabilitation
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Act of 1999 only 5% priority quota is required to be fixed for
employment of nominees of the affected persons. Thus, 5%
priority quota is of the total number of posts sanctioned by the
State Government in Class - III and Class - IV category of the
university. All the Government Resolutions from the year 1980
till today prescribes 5% quota for project affected persons. Those
persons whose lands were acquired for a particular project, they
or their nominees are to be given benefit of minimum preference
of 50% from the reserved quota of 5% as per Sec. 10(6)(a) of the
Rehabilitation Act of 1999. The earlier communication dated
15.07.2009 and 31.07.2009 were issued by the State Government
under misconception. The corrective steps are taken
subsequently by issuing fresh advertisement as per the directions
of the Government. The respondent/State has made it clear that
the quota prescribed to fill in the posts under P.A.P. category is
only 5% and it is from these 5%, 50% of the posts from 5% post
reserved for P.A.P. are to be filled in from the P.A.P. category of
the concerned university and the balance 50% posts from 5%
posts reserved for P.A.P. are to be filled in from the P.A.P.
category of other projects of the State Government. Considering
the same, the respondent/State on 01.11.2013 held that, the
decision dated 15.07.2009 to reserve 50% posts of the total posts
for P.A.P. category is wrong and decision was taken to cancel the
advertisement and the earlier communication. The learned
counsel submits that, perusal of Sec. 10 and Sec. 6 of the
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Rehabilitation Act of 1999, it is clear that no discrimination is
committed by the respondent university. The petitioners are
misinterpreting the said provisions. If 50% reservation is made
for P.A.P. category as alleged by petitioner, then total theme and
scheme of reservation policy will come to an end. The learned
counsel submits that, there are total 566 sanctioned posts of
Group - C and 1391 posts of Group - D employees with the
respondent/university and the respondents have filled in 405
posts till now from P.A.P. category i. e. almost 20.69% posts are
filled in from P.A.P. category. The recruitment process has been
undertaken pursuant to the advertisement dated 25.11.2014 and
04.12.2014. According to the learned counsel petitions deserve to
be dismissed.
7. The learned Assistant Government Pleader also put forth
the submissions on the same lines as learned counsel for the
university and submits that, as per Sec. 10(6)(a) of the
Rehabilitation Act of 1999 only 5% quota is reserved for
nominated candidates from project affected persons for
recruitment in Government Service and out of these 5% seats
reserved for nominated candidates through projected affected
persons not less than 50% i. e. minimum 2.5% candidates are to
be recruited from the project affected persons of the same project
for which their lands are acquired and remaining 2.5% seats are
to be filled in through the candidates of project affected persons
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category of other projects in the state. The learned A. G. P. also
submits that, the petitions are devoid of substance and same be
dismissed.
8. We have considered the submissions canvassed by learned
counsel for respective parties. Before we proceed to deal with the
contentions canvassed by learned counsel for respective parties,
it would be appropriate to refer to the relevant provisions of the
Rehabilitation Act of 1999.
THE MAHARASHTRA PROJECT AFFECTED
PERSONS REHABILITATION ACT, 1999
1. ...........
2. ..........
6. It shall be the duty of the project authority,--
(a) to carry out such work for providing the
necessary civic amenities in a new gaothan or
extension of an existing gaothan as the case may be,
established for rehabilitation of affected persons, as
may be entrusted to it by the State Government or the
Commissioner or the Collector ;
(b) to take measures for the speedy
rehabilitation of the affected persons under the overall
supervision and guidance of the Collector ;
(c) subject to any reservations validly made
and subject to availability of post, to give highest
priority in Class III and Class IV category of service on
the project establishment, to one member of the
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affected family nominated by the affected person, if
such member is eligible for such employment according
to the recruitment rules for such posts :
Provided that, while recruiting a member of the
affected family, against such quota, the project
authority shall, as far as possible, employ not less than
fifty per cent of such nominees who are affected by the
project under execution, as may be prescribed ;
Explanation.--For the purpose, of this clause the
expression "family" means the spouse, son married or
unmarried daughter or brother or sister or daughter-
in-law or grandson, or grand-daughter (which includes
son or daughter of the daughter also) of the affected
persons, or adopted son or daughter who is residing
with and is dependent on such affected person.
(d) to prepare or cause to be prepared annual
budget for providing funds for the civic amenity works
to be provided in a new gaothan or extension of an
existing gaothan established for the rehabilitation of
affected persons ;
(e) to furnish to the Commissioner and to the
Collector, during the various stages of planning and
execution of the project, information and plans in
regard to the affected and benefited zone of the project
as may be required for assessing the extent of the land
and other facilities required to be provided to the
affected persons for their rehabilitation ;
(f) to execute an agreement with the
beneficiary to abide by the provisions of section 10 as
may be prescribed.
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10. (1) The State Government shall in
accordance with the provisions made by or under this
Act and subject to the availability of sufficient land for
the purpose, rehabilitate affected persons from the
affected zone under an irrigation project, on land in the
villages or areas receiving benefit of irrigation from
such project.
(2) Nothing in section 14 or any other
provisions of this Act or any other law for the time
being in force shall prevent the State Government from
rehabilitating, in accordance with the other provisions
made by or under this Act, as many persons as possible
from the affected zone under any other project to which
the provisions of this Act apply or not, including those
under any irrigation project who have remained to be
rehabilitated,---
(a) on land in benefited zone of any
irrigation project or, as the case may be, in other
villages or areas, acquired for the purpose under
the provisions of section 14 ; or
(b) on any land from the land pool.
(3) The State Government shall provide
civic amenities in the prescribed scale and manner
in the new gaothan or in the extended part of any
existing gaothan established for the purpose of
rehabilitation of affected persons and such
amenities shall include the following, namely :---
(a) permanent provision for drinking
water, in proportion to the population, by open well,
bore well, tube well, piped water supply scheme or
by any other mode ;
(b) school with playground of appropriate
level as prescribed by the Education Department of
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the State Government with toilet facilities ;
(c) construction of Village Panchayat Office
and Chavdi or Samaj Mandir ;
(d) internal metal roads and ashalted
approach road of appropriate standard ;
(e) an access to the farm lands of the
affected persons, if required ;
(f) electric supply along with street lights,
and three phase connections, wherever required ;
(g) cremation ground with a shed,
platform, electric supply, water supply and burial
ground, as may be required with an approach road ;
(h) open built-up gutters ;
(i) financial assistance for individual
latrines and public latrines, whenever necessary ;
(j) land for cattle stand with a water
cistern ;
(k) land with pick up shed for Maharashtra
State Road Transport Corporation bus services ;
(l) land for threshing floor, that is to say,
khalwadi ;
(m) pasture land (if Government land is
available) ;
(n) developed land for market ;
(o) land for future expansion of goathan ;
(p) land for a secondary school and a
dispensary or primary health centre, bank, post-
office, garden for children, etc., depending on the
population of the new gaonthan ;
(q) land for registered bodies for public
purposes in the old gaothan ;
(r) land for play ground ;
(4) In addition to the amenities listed above,
the State Government shall also provide, to an
appropriate standard, in the new gaothan having
majority of the affected persons, all such other
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amenities which existed in the old gaothan :
Provided that, the places of public worship shall
not be constructed by the Government, however, the
compensation for the places of public worship in the old
gaothan shall be awarded to the concerned Public Trust
and if the places of public worship do not belong to any
public trust, such places of public worship shall be
constructed as provided in the Maharashtra Religious
Endowments (Reconstruction on Resettlement Sites)
Act, 1970.
(5) The expenditure on all such amenities in
sub-sections (3) and (4) above shall be part of the cost
of the project.
(6) (a) In all Class III and Class 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 73A
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,t he above priority shall be treated
as preference among the open and different reservation
categories in pro-rata manner.
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(c) The Collector shall maintain a register
showing the recruitment position in the District and
ensure removal of the backlog in recruitment of the
nominees of the affected persons. However, at any
recruitment, the percentage of the persons so recruited
from amongst the nominees shall not exceed fifty.
09. Undisputed factual matrix can be culled out as under
:
(i) The petitioners are the affected persons as laid down under
the Rehabilitation Act of 1999.
(ii) The lands of the petitioners are acquired for the university
project. As laid down U/Sec. 2(10)(f) setting up of university is
within the realm of definition of project.
(iii) The respondent university had issued advertisement dated
26.08.2009 thereby inviting applications for filling in posts of
Class III and Class IV with reservation of 50% posts for project
affected persons of the project of the respondent university.
(v) The communication is issued thereby cancelling the said
recruitment process initiated vide advertisement dated
26.08.2009 and thereby fresh advertisement is issued.
(vi) The bone of contention of the parties is with regard to
percentage of reservation made for the persons whose lands have
been acquired for the project that is establishment of respondent
university.
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10. The Rehabilitation Act 1999 is a beneficial legislation
meant for rehabilitation of the persons affected by certain
projects for the State of Maharashtra. Sec. 6 (c) of the
Rehabilitation Act of 1999 casts a duty on the project authority
apart from other duties as laid down in clauses (a), (b), (d), (e)
and (f) of Sec. 6 to give highest propriety in Class - III and Class-
IV category of services on the project established to one member
of the affected family nominated by the affected person if such
member is eligible for such employment according to the
recruitment rules for such posts and subject to any reservation
validly made and subject to the availability of the posts. The
proviso to Sec. 6(c) further mandates that while recruiting a
member of affected family against such quota, the project
authority shall as far as possible employ not less than 50% of
such nominees who are affected by the project under execution.
Reading Sec. 6(c) along with proviso to Sec. 6(c) it is manifest
that, an obligation is cast on the project authority to employ not
less than 50% of such nominees who are affected by the project.
Of course, the same has to be in consonance with the recruitment
rules and subject to the availability of posts and reservation
validly made. It is for the project authority to perform its
obligation as mandated by the statute to employ not less than
50% of the nominees who are affected by the project under
execution. It is one of the ways of the rehabilitating the project
affected persons.
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11. The respondents have placed emphasis on Sec. 10(6)(a),
which lays down that in all Class - III and Class - IV category of
services under the establishment of the State Government, etc.
there shall not be less than 5% priority quota for the employment
of nominees of the affected persons. According to the
respondents, this provisions restricts reservation of nominees of
affected persons to 5% only and it is from these 5%, 50% are to be
employed, i. e. 2.5% who are affected by the project under
execution.
12. Sec. 6(c) and Sec. 10(6)(a) will have to be interpreted
harmoniously. It is well settled that all provisions have to be
read together and construed harmoniously and even when there
are apparent inconsistencies between the sections of the Act and
the Rules framed thereunder. There should be a harmonious
construction so as to give effect to the intention of the legislation
and to achieve the object of the Act.
13. The Rehabilitation Act of 1999 is a beneficial piece of
legislation. In interpreting such a beneficial legislation the
construction has to be liberal. The beneficial provision has to be
liberally interpreted so as to give it a wider meaning rather than
restrictive meaning which would negate the very object of the
statute. It is also settled proposition that in construing the
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provisions of beneficent enactment the Court should adopt the
construction which advances and fulfills the object of the Act,
rather than the one which would defeat the same rendering the
benefit illusory. The Rehabilitation Act of 1999 is enacted for the
benefit of the persons affected by the certain projects. The
provisions of Sec. 6(c) and 10(6)(a) will have to be read
harmoniously in a manner they further the object of the statute.
Head on collision between these provisions will have to be
avoided. Sec. 10(6)(b) of the Rehabilitation Act of 1999 cannot be
interpreted in a manner that would render Sec. 6(c) of the
Rehabilitation Act of 1999 otiose or a dead letter. Sec. 10(6)(b) of
the Rehabilitation Act lays down a general preposition that the
State Government and the other persons, societies, etc shall
provide employment to not less than 5% of the cadre strength of
Class III and Class IV or equivalent of non technical employees
to the nominees of the affected persons. The said provision does
not at all restrict said reservation only for 5%. It on the other
hand provides that it should not be less than 5%. Along
with clause (b), clause (c) of sub Sec. 6 of Section 10 will also have
to be considered, which requires that the Collector shall
maintain a register showing the recruitment position in
the District and ensure removal of backlog in recruitment of
the nominees of the affected persons. However, at any
recruitment percentage of the persons so recruited from
amongst the nominees shall not exceed 50%, meaning thereby
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that for removal of backlog for recruitment of nominees of
affected persons the percentage of persons so recruited from and
amongst the nominees can be upto 50%. The whole object of the
Act is to rehabilitate the affected persons or their nominees.
Considering the provisions of Sec. 6(c) and its proviso, so also
Sec. 10(6)(b) and (c), it is manifest that the reservation for
nominees who are affected by the project under reservation can
be upto 50% of the posts. If the reservation to such project
affected persons is restricted to 2.5% i. e. 50% from 5% then, the
object of the Act would never be achieved may be it would be
frustrated. Interpreting both these provisions coherently, it is
manifest that, special drive can be implemented for filling up the
backlog of the nominees who are affected by the project under
execution to the extent of 50% of the posts.
14. While doing so the social reservation cannot be lost sight
of. The social reservation would be vertical reservation and
reservation for P.A.P. category would be horizontal in nature.
The balance can be struck by applying inter locking reservation i.
e. from the horizontal reservation across the vertical reservation
called as inter locking reservation. The persons from this P.A.P.
category can be placed in the category of the social reservation
which they belong to i. e. if a person from P.A.P. category belongs
to S.C. category he be placed in that quota by necessary adjustment
and so on. In this way the social reservation would not be
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affected.
15. Considering the above, it is clear that, the advertisement
issued on 26.08.2009 was legal and valid and the subsequent
letters issued by the respondents thereby cancelling earlier
advertisement are illegal and same deserves to be quashed and
set aside.
16.
It is submitted that, recruitment process pursuant to
advertisement dated 25.11.2014 and 05.12.2014 is not proceeded
further, hence the same shall not be proceeded. The recruitment
process undertaken pursuant to the advertisement of 2009 may
be completed, if otherwise, there is no other legal impediment.
Rule made absolute in above terms. No costs.
Sd/- Sd/-
[ V. K. JADHAV, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/Oct. 15
