Bombay High Court
The State Of Maharashtra Through ... vs Sushant Ulhasrao Kawade And ... on 11 August, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1494 OF 2015
Sandeep s/o. Sambhaji Yadav,
Age: 39 years, Occu.Service
(as Deputy CEO, Zilla Parishad
Raigad (Alibag), R/o. Vrindavan
Bungalow, Shivaji Nagar,
At Post Chendhre, Tal. Alibag,
Dist. Raigad. PETITIONER
ig (Orig.Resp.No.3)
VERSUS
1. Sushant s/o. Ulhasrao Kawade,
Age: 27 years, Occu. Nil,
R/o. Sankalp, Sai Vihar,
Behind Hotel Prasad,
Ghulewadi, Tal. Sangamner,
Dist. Ahmednagar.
2. The State of Maharashtra,
Through its Secretary,
Women & Child Welfare Dept.,
Mantralaya, Mumbai - 32.
3. The Maharashtra Public
Service Commission,
Bank of India Buldg.,
3rd Floor, Mahatma Gandhi
Marg, Hutatma Chowk,
Mumbai - 01.
4. The Director of Sports &
Youth Services,
M.S., Pune RESPONDENTS
(Resp.No.1 - Orig
Applicant, Resps.
Nos.2 to 4 Orig.
Resp.Nos.1,2 & 4)
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2
...
Mr.Avinash S. Deshmukh, Advocate for the
petitioner
Mr.S.B.Yawalkar, AGP for respondent - State
Ms.Pradnya S. Talekar, Advocate holding for
Mr.S.B.Talekar, Advocate for respondent no.1.
...
WITH
WRIT PETITION NO.6840 OF 2015
1. The State of Maharashtra
Through Secretary,
Women and Child Welfare
Department, Mantralaya,
Mumbai-32.
2. The Maharashtra Service Public
Commission, Bank of India Building,
3rd Floor, Mahatma Gandhi Marg.,
Hutatma Chowk, Mumbai-01.
3. The Director of Sport and Youth
Services, Pune-5 PETITIONERS
[Orig.Resp.Nos.1
2 and 4]
VERSUS
1. Shri Sushant Ulhasrao Kawade,
Age 26 years, Occu. Nil,
R/o. Sankalp, Sai Vihar,
Behind Hotel Prasad, Ghulewadi,
Tq.Sangamner, Dist. Ahmednagar
2. Sandip Sambhaji Yadav,
Age Major, Occu. Service,
R/o. C/o. Urban Development Division,
Nirmal Bhavan, 2nd Floor, CIDCO
Office, Rajani Patel Marg.,
Nariman Point, Mumbai-21. RESPONDENTS
(Orig.petitioner
& Respondent No.3)
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3
...
Mr.S.B.Yawalkar, AGP for the petitioners -
State.
Mr.D.R.Dhule, Advocate for Respondent no.2.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 01.07.2016
Pronounced on : 11.08.2016
COMMON JUDGMENT: (Per S.S.Shinde, J.):
Heard. Rule. Rule returnable
forthwith with the consent of the learned
counsel appearing for the respective parties,
heard finally.
2. The above numbered Writ Petitions
have been filed challenging the same judgment
dated 28.01.2015 passed by the Maharashtra
Administrative Tribunal, Bench at Aurangabad
(in short 'MAT') in Original Application No.
383/2013, hence they are being decided by
this common judgment. For the sake of
convenience, the parties are hereinafter
referred to by their respective nomenclatures
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as given in the cause title of Writ Petition
No.1494/2015.
3. The learned counsel appearing for
the petitioner submits that respondent no.1
had no locus standi to challenge the
selection of the petitioner before the
Maharashtra Administrative Tribunal. He
submits that respondent no.1 had secured only
39 marks and minimum benchmark was of 40
marks for being called for interview. Since
respondent no.1 did not qualify on the basis
of his marks scored in qualifying
examination, the question of entertaining the
Original Application on his behalf would not
arise. He further submits that though he
specifically raised the above-stated ground
before the Tribunal, the Tribunal did not
consider the same properly. It is submitted
that as far as the Rural Sports Tournaments
held in 1990 at Ahmednagar in which the
petitioner had participated is concerned, the
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same was conducted by respondent no.4 -
Director of Sports and Youth Services, State
of Maharashtra under the aegis and/or the
directions of the Sports Authority of India
(SAI) and it was not at all the case that the
said tournaments were conducted by respondent
no.4 on its own, and therefore, on the said
background, the petitioner having
participated in the said tournaments and
further having secured the first position not
only in 400 meters but also in the 800 meters
sprint that he was fully eligible and
entitled to claim and to get the benefit of
sports reservation as prescribed and provided
under the Government Resolutions dated
30.04.2005 and 06.05.2008 issued by the
School Education and Sports Department,
Government of Maharashtra. The Tribunal
failed to appreciate the rules and ratio laid
down by the Hon'ble Apex Court in the case of
Duryodhan Sahu Vs. Jitendra Kumar Mishra1. It
1 AIR 1999 SC 114
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is further submitted that the Tribunal
proceeded on hypothetical basis, which is
clear from its observations in para 14 of the
impugned order wherein it had concluded that
in the event the appointment of petitioner
(i.e. original respondent no.3) was set
aside, respondent no.1 (i.e. original
applicant) got a chance of selection that too
in spite of the fact that the marks scored in
the interview by the 3rd candidate had not
been brought before it. The Tribunal did not
properly appreciate that respondent no.4 had
filed an affidavit to the effect that the
petitioner was fully eligible to claim
reservation as sports person.
4. It is further submitted that the
Tribunal clearly exceeded its jurisdiction
while dealing with the interpretation of the
Government Resolutions dated 30.04.2005 and
06.05.2008 inasmuch as under the garb of
interpreting those Government Resolutions,
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the Tribunal practically rewrote the policy
of the State Government in regard to
extension of the benefit of sports
reservation, which is clear from the fact
that it introduced the theory of
contemporaneousness and/or contemporaneity in
regard to the period of participation in the
concerned sport event. The Tribunal also gave
unnecessary and uncalled for importance to
the factum of the petitioner being a juvenile
at the time of participating in the Rural
Sports Tournaments. In doing so, the Tribunal
defeated the very purpose and intention of
the State Government in introducing the
facility of sports reservation through the
Government Resolution dated 30.04.2005. Even
on the facts also, the Tribunal has gone
wrong in observing that the certificate of
Proficiency on the basis of which
petitioner's eligibility was decided by
respondent no.4 was signed only by the
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District Sports Officer and the Collector.
This is because a bare look at those
certificates of Proficiency showed and
established that those were also signed by
respondent no.4 - Director of Sports, who had
conducted the tournaments for and on behalf
of the SAI. The Tribunal reached the
conclusions on the basis of surmises and
conjectures without giving any opportunity
either to the petitioner or to respondent
no.4 to establish that the said Rural Sports
tournaments were conducted under the aegis of
the SAI.
5. The learned counsel appearing for
the petitioner invites our attention to Form
3 (A) certificate issued by the Director of
Sports and Youth Services, Maharashtra State,
Pune and submits that the said Form 3 (A) is
very much signed by the said Authority, and
the Tribunal was not correct in observing
that the certificate is not signed by the
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Director of Sports and Youth Services,
Maharashtra State, Pune. He also invites our
attention to the contents of the Government
Resolutions dated 30.04.2005 and 06.05.2008
issued by the School Education and Sports
Department, Government of Maharashtra, and
submits that petitioner's case is squarely
covered by clause 4 of the Government
Resolution dated 06.05.2008 and therefore,
there was no occasion for the Tribunal to
cancel the appointment of the petitioner on
the post of Child Development Project
Officer. It is submitted that the petitioner
was already appointed and after his
appointment, he has completed more than 2
years of service. Therefore, it was not
proper on the part of the Tribunal to quash
his appointment merely because the petitioner
did participate in the tournaments held in
the year 1990, and the recruitment process
was initiated in the year 2012-13, and
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thereafter, the petitioner was appointed from
the sports category. The said time gap
cannot be a ground to disbelieve the claim of
the petitioner from the said category. The
learned counsel appearing for the petitioner
in support of his contention that respondent
no.1 had no locus standi to assail the
appointment of the petitioner placed reliance
on the reported judgments in the cases of
Trivedi Himanshu Ghanshyambhai Vs. Ahmedabad
Municipal Corporation and ors.2, Ravi
Yashwant Bhoir Vs. District Collector, Raigad
and ors3 and K.H.Siraj Vs. High Court of
Kerala & ors.4 It is submitted that while
exercising the power of judicial review of
the administrative action, the Court is not
the Appellate Authority. In support of said
contention, he pressed into service the
exposition of law in Ekta Shakti Foundation
2 2007 (8) SCC 644
3 2012 (4) SCC 407
4 2006 AIR (SC) 2339
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Vs. Govt. of NCT of Delhi5. Therefore, the
learned counsel relying upon the pleadings in
the Petition, grounds taken therein and the
written notes of arguments filed on record
submits that the Petition deserves to be
allowed.
6.
The learned counsel appearing for
respondent no.1 submits that the petitioner
was ineligible for the sports reservation,
and cannot seek benefit of the Government
Resolution dated 06.05.2008 for more than one
reason. Firstly, it was not organized by the
National Sports Authority of India, and
Secondly, the competition participated was
not of national level. Both of these are
conditions mentioned in the clause 1 (4) of
the Government Resolution dated 06.05.2008
and non-fulfillment of even one of the
conditions leads to ineligibility of the
candidate for sports reservation as per the
5 2006 AIR (SC) 2609
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Government Resolution. It is more than clear
from the certificates of the petitioner that
he had participated in athletic sports, which
was not organized by the National Sports
Authority of India, and on the contrary the
same was organized by the Director of Sports
and Youth Services, M.S., Pune. It is
submitted that respondent no.1 had locus
standi to file Original Application since he
was the candidate applying from sports
category for the same post, which is occupied
at present by the petitioner. The learned
counsel also invites our attention to the
averments in the affidavit-in-reply filed on
behalf of respondent no.1 and submits that
the Petition deserves to be dismissed.
7. The learned AGP appearing for
respondent nos.2 to 4 submits that the
Original Application at the instance of
respondent no.1 should not have been
entertained by the Tribunal, since he did not
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secure 40 marks to qualify for calling him
for interview. It is submitted that it is
improper to direct the Chief Secretary to
conduct an enquiry through a person not less
in rank than the Principal Secretary into the
conduct of respondent no.3 herein as to the
alleged illegalities committed in deciding
eligibility of the petitioner in the
affirmative. It is submitted that there was
no occasion for the Tribunal to direct such
enquiry. Therefore, relying upon the
pleadings in the Writ Petition no.6840/2015
and annexures thereto, the learned AGP
submits that the Writ Petition deserves to be
allowed.
8. In both Writ Petitions, we have
considered the submissions of the learned
counsel appearing for the petitioner, learned
counsel appearing for respondent no.1 and the
learned AGP appearing for the State and its
Authorities. With their able assistance,
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perused the pleadings in the Petition,
grounds taken therein and annexures thereto,
replies filed by the parties and also the
original record summoned from the Tribunal
and also findings and the conclusions
recorded by the Tribunal. The Tribunal has
recorded the reasons that the Original
Application was maintainable at the instance
of respondent no.1 (i.e. original applicant)
and he had locus. We do not find any reason
to take different view that the Original
Application was not maintainable on behalf of
respondent no.1.
9. We have carefully considered the
copy of sports certificate on which heavy
reliance has been placed by the petitioner,
and we find that, there is no signature of
the Director of Sports and Youth Services,
Maharashtra State, Pune, on the said
certificate. However, there is signature of
the District Sports Officer and the
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Collector. It is true that there is copy of
letter dated 23.07.2010 addressed by the
Deputy Director of Sports and Youth Services,
Maharashtra State, Pune to the Secretary,
Urban Development Department, Government of
Maharashtra wherein the case of the
petitioner was referred to the State
Government stating therein that the
petitioner fulfills the requirements
mentioned in the said Government Resolutions
of which reference is made in the said
letter, and therefore, his case can be
considered from the sports category in which
he participated. It further appears that Form
3 (A) is attached to the said letter, and the
said letter is signed by the Director of
Sports and Youth Services, Maharashtra State,
Pune. However, as observed earlier, the
certificate which is in the format is not
signed by the Director of Sports and Youth
Services, Maharashtra State, Pune, and
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therefore, it appears that there was move by
respondent no.3 subsequently in the year 2010
to write to the State Government, seeking for
approval to issue such certificate by
mentioning therein that the said tournaments
in which the petitioner participated were
organized by the Sports Authority of India.
In fact, the copy of certificate which is
placed on record by the petitioner at Page 55
and 56 would clearly demonstrate that there
is no signature of the Director of Sports and
Youth Services, Maharashtra State, Pune and
also nowhere it is written that the said
tournaments in which petitioner participated
were conducted under the aegis of the Sports
Authority of India. Therefore, the conclusion
reached by the Tribunal that the said Rural
Sports Tournament in which the petitioner did
participate in the year 1990 were not
conducted by the Sports Authority of India,
and the certificate was not signed by the
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Director of Sports and Youth Services,
Maharashtra State, Pune, cannot be said to be
perverse and contrary to the record.
10. Another conclusion reached by the
Tribunal that the certificate is not signed
by the Authority prescribed in Schedule-B
(ifjf'k"V&c), since the Government Resolution
dated 06.05.2008 has a prospective effect and
more contemporaneousness is expected,
respondent no.4 could not have issued the
letters dated 23.07.2010 and 27.09.2013,
stating that respondent no.3 is eligible for
the appointment against sports quota, on the
basis of a proficiency secured in 1990,
cannot be said to be perverse and without any
basis.
11. The Tribunal has also reached to the
conclusion that the petitioner i.e.
respondent no.3 secured certificates in 1990
for participation in Rural Sports, wherein
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the team he is supposed to have represented
is not specified. It is a condition precedent
that a sportsman should have been member of a
team and there is nothing on record to show
that he was part of a team. The said
conclusion also does not appear to be
perverse.
12. There are other conclusions reached by
the Tribunal that, even the genuineness of
the certificate in Form 3 (A) is found to be
doubtful. Careful scrutiny and verification
of all underlying documents / files and
enquiry is called for. On the basis of the
said conclusions, the Tribunal has directed
the Chief Secretary to conduct an enquiry
through a person not below the rank of
Principal Secretary into the conduct of
respondent no.4 i.e. the Director of Sports
and Youth Services, Pune, as to the
illegalities committed in deciding the
eligibility of the petitioner in the
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affirmative and fix the responsibility
thereof and take further departmental action,
including prosecution, is well founded.
Ultimately, it will depend upon an enquiry
and respondent no.4 will get full
opportunity to defend its case during the
course of said enquiry. Even not to hold
enquiry in such a case where the Tribunal
after recording the findings and reasons,
questioned bona fides of respondent no.4 and
genuineness of certificate in Form 3 (A),
would send wrong signal to the society, and
therefore, in such cases an enquiry as
directed by the Tribunal is necessary.
However, as already observed, while
conducting such enquiry, the Officer who was
incharge at the relevant time should be given
full opportunity to defend his case and put
forth his contentions.
13. It is not necessary for us to
lengthen this judgment, when we are in
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complete agreement with the findings recorded
and the conclusions reached by the Tribunal
on all aspects. Admittedly, the petitioner
applied from the sports category and his
candidature was considered from the said
category which process ultimately culminated
into issuance of an appointment order on the
post of Child Development Project Officer,
for which he was not entitled for, therefore,
the MAT has rightly cancelled his appointment
on the said post. For the reasons aforesaid,
we decline to interfere in the impugned
judgment and order of the Maharashtra
Administrative Tribunal, and therefore, both
Writ Petitions stand rejected. No costs. The
concerned respondents to take immediate steps
to advertise the post occupied by the
petitioner. Rule discharged.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
