The State Of Maha., Through Its ... vs Harshal S/O. Sudhakar Kawale
2016 Latest Caselaw 1079 Bom

    WP 702/16                                          1                          Judgment


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.




                                                                                      
                          WRIT PETITION No. 702/2016




                                                              
    1.            The State of Maharashtra,
                  through its Secretary,
                  Revenue and Forest Department,
                  Mantralaya, Mumbai - 32.




                                                             
    2.            Collector, Yavatmal,
                  Collectorate Building, Yavatmal.                          PETITIONERS

                                       .....VERSUS.....
    Harshal s/o Sudhakar Kawale,




                                               
    Aged about 28 years, Occupation: Nil,
    R/o Saikheda (Bk.), Tal. And District Yavatmal.                              RESPONDENT
                              
         Shri Ambarish Joshi, Assistant Government Pleader for the petitioners.
                     Shri G.G. Bade, counsel for the respondent.
                             
                                          CORAM :SMT.VASANTI A.NAIK AND
                                                    V.M. DESHPANDE, JJ.        

ST DATE : 1 APRIL, 2016.

ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)

RULE. Rule made returnable forthwith. The petition is heard

finally at the stage of admission with the consent of the learned counsel

for the parties.

2. By this petition, the petitioners impugn the order of the

Maharashtra Administrative Tribunal, dated 26.06.2015 allowing the

original application filed by the respondent and directing the petitioners

to consider the candidature of the respondent for his appointment on any

vacant Class-IV post in accordance with the qualification, merit,

antecedents, etc of the respondent. By the impugned order, it is declared

that 'overage' should not be the ground to deny the appointment to the

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petitioner. Further the petitioners are directed to complete the process

and pass the order of appointment of the respondent preferably within a

period of six months.

3. Few facts giving rise to the petition are stated thus :-

The agricultural land owned and possessed by the family of

the respondent was acquired by the State of Maharashtra for the Waghadi

project. On 19.02.1997, the Collector, Yavatmal issued a 'Project Affected

Person' certificate in favour of the father of the respondent. Subsequently,

the certificate was transferred in the name of the respondent. The

respondent applied to the Collector, Yavatmal for appointment on a post

reserved for the Project Affected Persons on the basis of the certificate

transferred in his favour. It is the case of the respondent that the

Collector, Yavatmal appointed some other candidates who had applied

after the application was tendered by the respondent. The respondent,

therefore, filed the original application in the year 2009 seeking a

direction to the petitioners to appoint the respondent on a post

earmarked for the Project Affected Persons. The Maharashtra

Administrative Tribunal allowed the original application and directed the

petitioners to consider the candidature of the respondent and grant him

appointment without considering his age. The order of the Tribunal is

impugned in the instant petition.

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4. Shri Joshi, the learned Assistant Government Pleader

appearing on behalf of the petitioners, submitted that the order

of the Tribunal is not in accordance with the law laid down by

the Full Bench in the judgment reported in 2009(4) Mh.L.J. 961

(Rajendra Pandurang Pangare & Another Versus State of Maharashtra &

Others). It is stated that the Project Affected Person cannot be

appointed without advertising the post and by ignoring the

qualification and merit. It is submitted that an appointment of a

person on a post reserved for the Project Affected Person could be

made only after the post is advertised and all eligible candidates from

the Project Affected Persons' category are granted an opportunity to

compete with each other. It is stated that though the judgment of

the Full Bench was brought to the notice of the Maharashtra

Administrative Tribunal, the Maharashtra Administrative Tribunal

dismissed the original application after holding that the judgment would

not be made applicable to the case of the respondent. It is submitted that

the observation made by the Tribunal that since the juniors were granted

appointment, the judgment of the Full Bench and the Government

Resolution dated 18.07.2008 would not be applicable to the case of the

respondent, is erroneous. It is stated that in view of the Full Bench

decision, the Maharashtra Administrative Tribunal ought to have

dismissed the original application filed by the respondent.

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5. Shri Bade, the learned counsel for the respondent,

supported the order of the Tribunal. It is submitted that the Tribunal

had rightly allowed the original application filed by the respondent.

It is submitted that the respondent had applied for a post earmarked

for the Project Affected Persons in November-1998 and since some of

the candidates that had applied subsequently were granted

appointment, the Tribunal rightly held that the judgment of the Full

Bench and the Government Resolution, dated 18.07.2008, cannot be

applied for denying the relief to the respondent. It is submitted that in

the circumstances of the case, the Tribunal was justified in passing the

impugned order.

6. On hearing the learned counsel for the parties and on a

perusal of the judgment of the Full Bench as also the impugned order, it

appears that the Tribunal committed a serious error in allowing the

original application filed by the respondent. It is clearly laid down by the

Full Bench in the judgment reported in 2009(4) Mh.L.J. 961 (Rajendra

Pandurang Pangare & Another Versus State of Maharashtra & Others) that

the Project Affected Persons cannot be appointed without advertising the

post and by ignoring their qualification and merit. It is held by the Full

Bench in the aforesaid judgment that in order to ensure the equality of

opportunity that is guaranteed in the matter of employment under

Article 16 of the Constitution of India, it would be necessary that the

WP 702/16 5 Judgment

posts reserved for the Project Affected Persons are advertised so

that all eligible candidates can apply and get an opportunity to

compete with others in the said category. The respondent could

have accordingly applied for appointment on the post earmarked for

the Project Affected Persons after the judgment was rendered by the

Full Bench and the Government issued the resolution dated 18.07.2008.

Merely because some persons, whose names were brought on the list

of Project Affected Persons, as maintained by the Collector, Yavatmal,

were appointed and the respondent was left out, relief cannot be

granted in favour of the respondent by giving a go-bye to the judgment

of the Full Bench reported in 2009(4) Mh.L.J. 961 (Rajendra

Pandurang Pangare & Another Versus State of Maharashtra & Others)

and the Government Resolution dated 18.07.2008. The direction of the

Tribunal to appoint the respondent on a post earmarked for the Project

Affected Persons without issuance of advertisement and without

following the due procedure would be violative of the provisions of

Article 16 of the Constitution of India. The impugned order is clearly

illegal and the same cannot be sustained.

7. Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned order is quashed and set aside. The original application

filed by the respondent stands dismissed.

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Rule is made absolute in the aforesaid terms with no order as

to costs.

                  JUDGE                                    JUDGE




                                                      
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