Bombay High Court
Mr. Nitin Naresh Daki vs Zilla Parishad, Raigad And Ors on 30 August, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6976 OF 2015
Mr. Nitin Naresh Daki .... Petitioner
vs
Zilla Parishad, Raigad and ors. .... Respondents
Mr. A.K. Jalisatgi i/by Mr. C.M. Lokeshappa for the petitioner.
Mr. C.G. Gavenekar for respondent No.2.
Mr. Sandeep Babqar, AGP for respondent No.3.
CORAM: ANOOP V. MOHTA AND
G. S. KULKARNI, JJ.
DATE : August 30, 2016
ORAL JUDGMENT (Per Anoop V. Mohta J.):-
Rule, returnable forthwith. Heard finally by consent of
parties.
2 Pursuant to advertisement dated 7 September 2013 issued
by Respondent No. 1, the Petitioner along with others, being
physically handicapped challenged person (suffering more than 45%
disability) applied for the post of Peon as reserved for the sports
persons. The Petitioner, inspite of this disability has been
participating in sport activities in International, as well as, State
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Level Tournaments. He has won various awards and certificates from
various Associations as a Power Lifting Champion. The Petitioner
was selected but kept on waiting list, as he had obtained 46 marks.
One Mr. Ajay Khade who obtained 47 marks was selected as per the
list dated 18.01.2014 for the post. However, some time in April 2014,
Mr.Ajay Khade communicated his inability to join the post. The
Petitioner being the only eligible candidate as per the list, ought to
have been appointed by the Respondent. For un-known reasons, the
Petitioner was not appointed, within the prescribed period.
3 The immediate procedure to be followed, for such
appointment on vacant post as reflected in Clauses 16, 17 and 18 of
the Government Resolution dated 30.04.2015, was not followed by
the Respondent. We have noted that clause 17 provides that in such
situation, the Department is required to appoint the next waiting list
candidate temporarily, subject to the completion of formality.
4 We have on 18 November 2015 passed the following
order:
"Considering the averments made and in view of the
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fact that the Petitioner is otherwise eligible for the post
of peon (player) and merely because the concerned
Department forwarded the communication on 20
January 2015 thereby taking shelter of expiry of one
year, in our view, should not be the reason to deny the
claim of the Petitioner for the post of peon being at
serial No.1 in the Waiting List and as the stated
selected person did not join the post of peon in
question.
2 Therefore, there shall be ad-interim order in
terms of prayer clause (d). It is made clear that it is
operative only for the one post of peon (player)."
We have noted that even communication dated 6/12/2014 was an
afterthought and was contrary to the Rules/conditions so referred
above as the Petitioner was not even appointed temporarily. The
Respondents ought not to have waited for such long time for the
completion of formality without appointing the Petitioner, being
eligible for the vacant post.
5 The Petitioner, therefore, addressed a letter in January
2015 for the appointment. However, the Respondent did not give any
employment to the Petitioner. On the contrary, a wrong certificate
was issued by the Respondent. In February 2015, however, a
correction was made. For this mistake and delay, no fault could
have been attributed to the Petitioner. The Petitioner's application,
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inspite of repeated communication and representation, except
assurance, was not moved forward. Therefore, again a
representation was made by the Petitioner. By intimation dated 22-
04-2015/3.6.2015, it was communicated that the selection/waiting
list was of January 18, 2014 and, therefore, the employment could
not be provided. The Petitioner moved this Petition on 29 June
2015.
6 The above stated reasons and the specific averments made
by the Petitioner, including the prayers so made are not denied by the
Respondents till this date. A statement is made that the vacancy is
still available. Even otherwise, after considering the above admitted
position on record and the advertisement conditions so referred above
and in view of the fact that the Petitioner's crystalised right to be
considered being the only eligible person on waiting list, the
Petitioner ought to have been appointed on the post. Respondent
cannot deny the accrued right of Petitioner to be appointed on the
post within the year itself - the reason that one year period is lapsed,
in the case in hand, is unacceptable.
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7 This Court in Udaysing Jalamsingh Valvi vs. Secretary,
District Selection Committee, Alibagh and anr1 in para 10 observed as
under:
"10 Clause-9, in our view, cannot be read to mean
that the person though appointed as per the list so
prepared, if failed to appear, no other person can be
appointed on the post within that year. In our view,
the appointed candidate if failed to appear within
reasonable time and in the present case, never
appeared for want of caste certificate and as the
Petitioner being the next eligible candidate having
validity certificate, ought to have been appointed in
that year itself. The communication therefore, so
given and thereby rejected the claim of the Petitioner
shows non-application of mind to the facts, as well as,
to the Government Circular itself. The respondents
cannot be permitted to deny the rights of the Petitioner,
as in our view crystalized as referred above, merely
because the respondents failed to take action within
the prescribed period of one year."
8 Therefore, taking overall view of the matter, we are of the
view that the Petitioner has made out a case and as no sustainable
defence is raised, therefore, we are allowing the Petition in terms of
prayer (a). Hence, the following order :
ORDER
(a) The Writ Petition is allowed in terms of prayer (a) which
1 2014 (2) Mh. L. J. 815
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reads thus :
"That this Hon'ble Court may be pleased to issue a
writ in the nature of mandamus or any other
appropriate writ, order or direction directing and
commanding the Respondents No. 1 and 2 to
forthwith employ the Petitioner as "Peon" as per
the select/waiting list dated 18 January, 2014."
(b) Rule made absolute accordingly.
(c ) No costs.
(G. S. KULKARNI, J.) (ANOOP V. MOHTA, J.)
