Bombay High Court
Ravindra Gajanan Thakedar vs Mah.Administrative Tribunal & 3 ... on 22 April, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2842 OF 2003
Ravindra Gajanan Thekedar,
Talathi at Saza No.64, Taluka
Hingna, District Nagpur. ... Petitioner
- Versus -
1) Maharashtra Administrative
Tribunal, Nagpur Bench, Nagpur,
through its Registrar.
2) State of Maharashtra, through
Secretary to Revenue and Forest
Department, Mantralaya,
Mumbai - 400 032.
3) Sub-Divisional Officer, Nagpur,
District Nagpur.
4) Collector, Nagpur. ... Respondents
-----------------
Shri K.V. Deshmukh, Advocate for petitioner.
Smt. H.N. Prabhu, Assistant Government Pleader for
respondents.
----------------
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : APRIL 22, 2016
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ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
The petitioner, who has two-three years of
service left to his credit before superannuation,
challenges order dated 8/7/2003 delivered by
Maharashtra Administrative Tribunal, Nagpur Bench,
Nagpur in Transfer Application No. 750/1992. By that
order, Division Bench of Maharashtra Administrative
Tribunal has found that elder brother of petitioner, by
name Raju (now deceased), had procured employment
as a son of freedom fighter. Hence, second
employment procured by the petitioner as a son/
dependent of very same freedom fighter cannot be
accepted. This Court has protected employment of
petitioner while issuing rule in the matter. In view of
the said interim order dated 24/7/2003, petitioner
continues in employment even today.
2) Adv. Deshmukh for petitioner, in this
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background, submits that Raju, elder brother of
petitioner, was never employed as a dependent of
freedom fighter. He got employment on merits in the
open category. He contends that after death of father,
mother of petitioner nominated petitioner as a
dependent and on that strength, petitioner was given
preference while
ig effecting recruitment and
appointment order dated 18/5/1985 came to be issued
to him. On the basis of some complaints, it is alleged
that office of Collector conducted enquiry and then
ordered the services of certain candidates to be
terminated on the ground that they supplied incorrect
information or false information. Because of this
direction, which was issued behind back of petitioner,
on 1/8/1985 an order putting an end to service of
petitioner came to be issued. This order expressly
mentions letter of Collector dated 19/6/1985. That
letter contains stigmatic material and as this letter
finds mention, order of termination dated 1/8/1985
itself is stigmatic. He draws support from judgment of
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Hon'ble Apex Court in Dipti Prakash Banerjee v.
Satvendra Nath Bose National Centre for Basic
Sciences, Calcutta and others (AIR 1999 SC 983) to
substantiate his contention. He further argues that
when this termination was questioned before this Court
in Writ Petition No. 1654/1985, his employment came to
be protected. In due course of time, after coming into
force of Administrative Tribunals Act, 1985 and
constitution of Administrative Tribunals in State of
Maharashtra, said writ petition was transferred to
Maharashtra Administrative Tribunal where it was re-
numbered as Transfer Application No. 750/1992.
3) When the petition was taken up for hearing on
16/10/2001, the learned Maharashtra Administrative
Tribunal after noticing the fact that alleged report,
which found that petitioner had procured employment
by giving incorrect information was not coming forward,
directed fresh enquiry. Such fresh enquiry could not
have been ordered as the report itself did not come
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before the Court and petitioner was never given any
opportunity in the alleged enquiry. He submits that as
explained by Hon'ble Apex Court in State Bank of
Patiala vs. S.K. Sharma (1996 (3) SCC 364), more
particularly in paragraph 35, present facts show that
the theory of showing prejudice is not attracted as
there was no opportunity and no enquiry. Hence, order
of termination should have been quashed and set
aside.
4) Adv. Deshmukh further contends that
thereafter Collector has again conducted a farce of
enquiry in which petitioner and his elder brother were
only called, but proper opportunity was not given to
them. In that enquiry also, relevant material to show
that elder brother Raju got employment as dependent
of a freedom fighter did not surface. Still the office of
Collector submitted an adverse report. That report has
been accepted and all contentions raised by the
petitioner were overlooked by Maharashtra
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Administrative Tribunal while delivering final order on
8/7/2003. The learned Counsel submits that perusal of
proceedings, which are looked into by Maharashtra
Administrative Tribunal reveal that brother of petitioner
was not recruited as a dependent of freedom fighter.
Without prejudice, Adv. Deshmukh adds that as
dependents of freedom fighters, who have secured less
marks than said brother are also shown to be recruited,
said brother could very well been recruited in open
category without giving him any preference or priority
as a dependent of freedom fighter. As such, the
impugned order shows total non-application of mind
and it is liable to be quashed and set aside.
5) Smt. Prabhu, learned Assistant Government
Pleader for respondents, submits that Maharashtra
Administrative Tribunal could not have in jurisdiction
available to it decided a disputed question of fact. It,
therefore, rightly asked Office of Collector to hold
enquiry. Accordingly, after giving petitioner and his
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brother Raju due opportunity, enquiry was conducted.
In that enquiry, records perused by Collector
demonstrate that Raju participated in recruitment
process as a son of freedom fighter and on that basis,
he has been recruited and placed in open category.
Thus, findings of Collector are based on record and are
also accepted by the Maharashtra Administrative
Tribunal. Thus, acceptance of findings by learned
Maharashtra Administrative Tribunal is neither perverse
nor erroneous. According to her, in this limited
jurisdiction, this Court should not disturb said findings
of facts. She contends that had elder brother been not
a dependent, in normal course, he would not have
secured employment. The fact that petitioner is
recruited as a dependent or nominee of freedom fighter
being not in dispute, his termination cannot be set
aside. She further contends that service put in by the
petitioner after 1985 on the strength of interim orders
passed by this Court or by Maharashtra Administrative
Tribunal cannot be used as a lever to extend any
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benefit or sympathy to him. She submits that in view
of this material available on record, judgments on
which reliance is placed by Adv. Deshmukh are not
applicable.
6) In his reply arguments, Adv. Deshmukh adds
that grandfather of petitioner was also a freedom
fighter.
7) After hearing respective Counsel, we find that
status of grandfather is not relevant before us. Only
question to be looked into is whether petitioner is a
second person in the family, who has obtained benefit
as a dependent of freedom fighter? The fact that
father of petitioner and his brother Raju was freedom
fighter is not in dispute. The nomination of petitioner
by widow of freedom fighter (his mother) is also not in
dispute. Employment extended to petitioner as a
nominee is also not in dispute. Thus, the only question
to be decided is whether elder brother of petitioner,
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namely, Raju got employment as nominee of freedom
fighter?
8) Perusal of order dated 19/6/1985 shows that it
is passed by Collector, Nagpur and it is addressed to
Sub-Divisional Officer at Saoner, Umred and Nagpur in
which it is mentioned that candidates whose names
appear in that order obtained employment by giving
incorrect nomination or false nomination. Fact that
they supplied false information has been revealed after
enquiry and, therefore, Collector directed that such
candidates should be terminated forthwith. The
petitioner is one such candidate and against his name,
there is a remark that his elder brother had taken
advantage earlier. Because of this order, by order
dated 1/8/1985, Sub-Divisional Officer, Nagpur by
mentioning said order proceeded to terminate services
of petitioner.
9) Transfer Application No.750/1992 was
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considered by Maharashtra Administrative Tribunal and
closed for orders on 16/10/2001. On that date,
Maharashtra Administrative Tribunal directed Collector
to make a thorough enquiry in the matter and then file
necessary affidavit. This direction was issued after Sub-
Divisional Officer, Nagpur filed affidavit informing that
there was no record indicating that Raju was appointed
as Talathi as nominee of freedom fighter. In fact, Sub-
Divisional Officer also declared that there was no record
indicating that present petitioner was appointed as
Talathi as such nominee. The learned Maharashtra
Administrative Tribunal found this stand of Sub-
Divisional Officer in conflict with facts mentioned in the
order of termination and earlier order dated 19/6/1985
passed by Collector. Therefore, such a direction was
issued to the Collector.
10) Report of enquiry conducted by Collector has
also been made available for perusal of this Court. The
said report shows that when Collector verified records
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in freedom fighters' Section, no records supporting
nomination either of Raju or present petitioner could be
traced out. Collector then proceeded to trace out
recruitment records of Raju and found that he was
appointed from open category. The Sub-Divisional
Officer, Nagpur did not produce relevant records to
support appointment of petitioner and hence, Collector
was not happy and satisfied. He issued directions to
Office of Sub-Divisional Officer, Ramtek and Nagpur.
The Sub-Divisional Officer, Ramtek then communicated
that Raju was appointed against open point in roster
and he did not clarify whether it was as a nominee of
freedom fighter or not. The Collector has recorded that
he was not satisfied with this reply. The Sub-Divisional
Officer, Nagpur intimated that original records about
recruitment of petitioner Ravindra were not available in
his office. Collector thereafter has proceeded to
mention that when records available in the office of
Collector were perused, it was seen that the Selection
Committee had selected Raju as Talathi as a nominee
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of freedom fighter in 1982 and thereafter as per roster
point, he was adjusted against open post. Thereafter
there is a similar observation about recruitment of
Ravindra. In the light of this, Collector has proceeded
to conclude that both brothers, namely, Raju and
Ravindra procured employment as nominees of
freedom fighters. ig The Maharashtra Administrative
Tribunal has accepted this report.
11) The facts mentioned in the report itself show
that original records pertaining to nomination of Raju as
a dependent of freedom fighter were not available. On
the basis of some records, which were available in the
office of Collector, Collector concluded that Selection
Committee had selected Raju as a dependent of
freedom fighter in 1982. That Select List was also
produced before Maharashtra Administrative Tribunal.
The heading of the list is selection of candidates fit to
be appointed as Talathi with reference to priority to son/
dependent of freedom fighter. In the bracket, it is
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mentioned that interviews were held on 11/5/1981 and
22/5/1981. The name of petitioner's elder brother
appears at serial no. 250 therein. It is mentioned that
he has passed S.S.C. and as per caste category, he
belongs to "OBC". He had scored 12 marks and in
remarks column, it is mentioned that he is a dependent
of freedom fighter. ig Roster of selected candidates for
recruitment signed by Resident Deputy Collector at
Nagpur and Collector is also placed on record. There
name of said elder brother appears at serial no.11. He
is shown as an open category candidate. His serial
number in select list is stated to be 9.
12) At this stage it is appropriate to peruse the
Government Resolutions, which provide for
employment of freedom fighters or their nominees. As
per Government Resolution dated 2/3/1981, it Is
stipulated that freedom fighters and their nominees
should be given preference over strike period
personnel. In the preamble part, it is mentioned that
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Government has granted certain concessions to
freedom fighters. It is apparent that there is no
reservation for such dependents or sons in
employment. Perusal of Government Resolution dated
12/10/1965 clearly shows a direction to Appointing
Authorities that while making appointment to Class III
and IV posts, preference should be given to these
persons, if they are otherwise found suitable.
Preference implies choice between two, who were
otherwise equal. Thus, if two persons are available and
they are equally placed, by Government Resolution
dated 12/10/1965, a preference is directed to be given
to such person.
13) In the present matter, elder brother of
petitioner, who had secured 12 marks in interview and
belonged to "OBC" category was placed at serial no.9 in
select list as an open category candidate. One O.W.
Pande has been placed at serial no.4 and it is
mentioned in the list that he belongs to "OBC"
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category. His placement in select list is shown to be at
serial no.2. Apart from Shri O.W. Pande, there is no
other OBC candidate in the select list, which consists of
about 35 names. Name of brother of petitioner figures
at serial no.11 in this list.
14) At serial nos. 18, 19 and 20, there are three
names, namely, Shri S.R. Deshmukh, Shri G.G.
Palandurkar and Shri V. Parkhi. Serial numbers of these
three persons in select list are 17, 18 and 20. These
three persons are also shown as dependents or sons of
freedom fighters in the select list of candidates fit for
appointment prepared after interviews were held on
14/5/1981 and 22/5/1981. Name of brother of
petitioner is at serial no. 250 in that list and he had
secured 12 marks. Name of Shri Deshmukh is at serial
no.35 and he has secured 11 marks. Name of Shri
Palandurkar is at serial no. 36 and he has also secured
11 marks. Name of Shri Parkhi is at serial no. 256 and
he has also secured 11 marks. These three persons
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also belong to "OBC" category. We can multiply these
instances because in the list of selected candidates,
below brother of petitioner, there are about 24 such
persons. These three persons, who have secured less
marks than brother of petitioner are also selected and
appointed. When concept of giving preference and
implications arising out of it are kept in mind, it is clear
that these persons, who have secured less marks than
brother of petitioner would be provided employment
because there was no better person than them. It also
implies that there was no better person than brother of
petitioner, who could have been given employment
considering 12 marks secured by him.
15) If brother of petitioner could not have been
accommodated as a son of freedom fighter, he would
have been definitely accommodated as a person
selected on his own merits in open category and would
have displaced a person, who has secured 11 marks.
This consideration, therefore, shows that grant of
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employment to brother of petitioner does not appear to
be only on the strength of his status as son of a
freedom fighter. On merits, in his own rights, he could
have definitely secured that employment.
16) The report of Collector to which we have made
reference specifically finds that no record of nomination
effected in favour of said brother Raju was available
with the concerned Branch of the Office of Collector. In
absence of availability of such evidence of nomination,
only on account of the fact that in selection process,
Raju has been mentioned as dependent of freedom
fighter, it could not have been concluded that
ultimately he was provided employment as a
dependent. The report submitted to the Office of
Collector reveals that he was given employment in
open category. This shows that he had secured marks,
which were sufficient to find him a place in open merit
list. A candidate competing for reserved seat, if he
scores such marks is always accommodated against
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open seat and then it cannot be said that he has been
appointed as a reserved category candidate. Very
same logic applies to the case of Raju also. In view of
marks secured by him and his placement in open
category in select list, it is evident that he did not get
selected as a dependent of freedom fighter.
17)
We, therefore, find that material on record is
insufficient to conclusively hold that Raju was given
employment as a dependent of freedom fighter. In this
situation, employment provided to the petitioner as a
nominee of freedom fighter cannot be faulted with.
18) The impugned order passed by Maharashtra
Administrative Tribunal on 8/7/2003 in Transfer
Application No. 750/1992 is, therefore, unsustainable.
The same is quashed and set aside. Transfer
Application No. 750/1992 is allowed. The termination
order dated 31.7.1985/1.8.1985 served upon petitioner
by respondent no.3 is quashed and set aside.
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19) Rule is made absolute accordingly. In the
circumstances, there shall be no order as to costs.
JUDGE JUDGE
khj
