Bombay High Court
Vaidya Mayur Ramesh Deshmukh vs The State Of Maharashtra And ... on 25 February, 2016
Bench: S.S. Shinde
1 WP NO.8118/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8118 OF 2015
Vaidya Mayur s/o Ramesh Deshmukh,
Age 35 years, Occ. Service
r/o Government Quarters,
Government Ayurved College Campus,
Tuljapur road, Osmanabad.
...PETITIONER
VERSUS
1.
The State of Maharashtra,
Through its Secretary,
Ministry of Medical Education & Drugs,
Mumbai.
2. State of Maharashtra
Through the Director of AYUSH,
GDCH building, 4th floor
Saint George Hospital premises
Demello Road, Fort, Mumbai.
...RESPONDENTS
...
Mr. Ajit B.Kadethankar, Adv., for the petitioner.
Mr. S.B.Yawalkar, A.G.P., for respondents / State.
...
CORAM: S.S.SHINDE
AND
P.R.BORA, JJ.
***
Date of reserving the judgment: 5/2/2016
Date of pronouncing the judgment:25/2/2016
::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 06:39:46 :::
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JUDGMENT (Per P.R.Bora, J.)
1. Heard. Rule. Rule made returnable and heard
forthwith with the consent of the learned Counsel for the
parties.
2. The petitioner has filed the present petition seeking
directions against the respondents for regularization of his
services on the post of Assistant Professor in the stream of
Rognidan.
3. The petitioner has done his post graduation in
Ayurved with specialization in Rognidan. The petitioner was,
thus, eligible to be appointed on the post of Assistant Professor
as per the norms laid down by the Central Council of Indian
Medicine. At present the petitioner is serving in the
Government Ayurved College, Osmanabad, as an Assistant
Professor. Respondent No.2 College is being run by the State
Government.
4. As averred in the petition, since there was a ban on
creation and filling of the post under the State Services, the
Maharashtra Public Service Commission was not in function
and the posts like Assistant Professors in the Government /
3 WP NO.8118/2015
Medical / Ayurvedic colleges were required to be filled in on ad
hoc basis. A Government Resolution dated 30th of August,
2008, was issued by the State Government for filling in the
posts of Assistant Professors in Ayurved on ad hoc basis. The
tenure of the service and mode of continuation of the selectees
and also the selection process were described in the said
Resolution. As stated in the said resolution, the Selection
Committee was comprising of :
Director of Ayurved.
(2) Dean of the concerned College.
(3) Head of the concerned Department.
(4) Representative of Backward Class
Professor / Assistant Professor.
(5) Chief Administrative Officer.
The detailed process for selection, including the allotment of
different marks and about the reservation roster to be followed
were also laid down in the said Resolution.
5. As further contended, in view of the aforesaid
Government Resolution, the advertisement was issued and the
applications were invited for the post of Assistant Professors.
In pursuance of the said advertisement, the petitioner applied
for the post of Assistant Professor in the stream of Rognidan.
4 WP NO.8118/2015
A general condition was laid down in the advertisement that,
appointment shall end by efflux of time or on availability of
M.P.S.C. candidate, whichever is earlier. After undergoing the
selection process, the petitioner was selected and was
appointed on the post of Assistant Professor in Rognidan
stream.
6. It is the further contention of the petitioner that
though his services used to be terminated by efflux of time,
after a technical gap of short period, the petitioner used to be
re-appointed for the further period and has thus been continued
till date. In paragraph no.7 of the petition, the petitioner has
provided the particulars of the period during which he has
worked, which are reproduced here-in-below:
Period worked Post Place
from to
31/01/2009 30/05/2009 Assistant Govt.Ayurved
Professor College, Nanded
06/06/09 03/10/09 -do- -do-
06/10/09 02/02/10 -do- -do-
08/02/10 07/06/10 -do- -do-
18-06-2010 15-10-2010 -do- -do-
04/11/10 29-09-2011 -do- -do-
10/10/11 07/04/12 -do- -do-
09/05/12 06/08/12 -do- -do-
08/08/12 31-08-2012 -do- -do-
5 WP NO.8118/2015
06/09/12 31-12-2012 -do- -do-
23-01-2013 21-07-2013 -do- -do-
23-07-2013 31-10-2013 -do- -do-
01/11/13 31-12-2013 -do- Govt. Ayurved
College
Osmanabad
7. The petitioner has further stated that, every time
the approval was granted to his appointment by the
Maharashtra Health University.
ig The petitioner has placed on
record copies of the experience certificate, appointment orders
and copies of approvals granted by the Maharashtra Health
University. It is the further contention of the petitioner that he
had performed the academic and administrative work at par
with the regular appointees. It is the further case of the
petitioner that the services of the similarly situated Assistant
Professors like the petitioners serving in the Government and
Dental Colleges under the Medical Education and Drugs
Department of State of Maharashtra have been regularized by
absorption as a special case vide Government Resolutions dated
22.1.2009 and 4.5.2009 issued by the Medical Education and
Drugs Department ( respondent no.1). It is the further
contention of the petitioners that the services of Medical Health
Officers appointed under the Public Health Department of the
Government of Maharashtra have also been regularized by
6 WP NO.8118/2015
adopting `Medical Officer in the Maharashtra Medical and
Health Services Group-A ( One Time Absorption of the Medical
Officers Appointed On Ad-Hoc basis in Maharashtra) (Special)
Rules 2009' passed by the Government of Maharashtra Public
Health Department on 2nd of February, 2009.
8. It is the further contention of the petitioners that
the petitioner and the similarly situated employees were
constantly
requesting the State Government for their
absorption and / or regularization on the respective posts of
Assistant Professors as was done in respect of the Medical
Health Officers appointed under the Public Health Department
by framing special Rules. It is the further contention of the
petitioner that, considering the fact that the petitioner is
discharging his duties since 31st of January, 2009, till date,
with some technical breaks, and further that he has been
selected by a duly constituted Selection Committee, his services
need to be regularized on the post of Assistant Professor in the
stream of Rognidan.
9. As further averred in the petition, in 2010, the
Maharashtra Public Service Commission issued advertisement
to fill up the post of Assistant Professor on which the petitioner
7 WP NO.8118/2015
is serving. The petitioner had also applied for the said post,
however, the petitioner was not even called for the interview
and another candidate was appointed. However, the petitioner
has also been continued considering availability of the posts. It
is the matter of worry for the petitioner that the respondent
authorities are attempting to fill up the posts of Assistant
Professors through M.P.S.C. and, in view of the change in age
criteria, the petitioner may not be now eligible to participate in
the said selection process. The petitioner, therefore, desires
that without disturbing the selection process being conducted
by the M.P.S.C., he be absorbed on the post of Assistant
Professor considering his past services and the fact that his
selection is also through duly constituted Selection Committee.
10. It is the further contention of the petitioner
that the Lecturers working under the Technical Education
Department who were appointed on ad hoc basis as well as on
contract basis had filed Writ Petition No.2046/2010 (Sachin
Ambadas Dawale and others Vs. The State of
Maharashtra and another), before the Nagpur Bench of this
Court, seeking their absorption on regular basis and the High
Court has directed the Government to regularize the services of
the petitioner in the said petition. It is the further contention
of the petitioner that the verdict of this Court in the aforesaid
8 WP NO.8118/2015
Writ Petition No.2046/2010 was challenged by the State
Government before the Hon'ble Supreme Court, however, the
same has been turned down and the Honourable Apex Court
thereby has confirmed the order passed by this Court in the
said Writ Petition No.2046/2010. It is the further contention
of the petitioner that, after the decision in Writ Petition
No.2046/2010, few other writ petitions were filed and were
allowed by this Court on the same reasons as recorded in the
judgment delivered by this Court in Writ Petition No.2046/2010.
It is the further contention of the petitioners that in view of the
orders passed by this Court in the said writ petitions, the
Government of Maharashtra has eventually issued a resolution
thereby regularizing all the employees in Higher and Technical
Department who had been working on ad hoc and contract
basis for more than three years.
11. It is the further contention of the petitioner
that, in view of the judgments of this Court, referred
hereinabove, a right has been accrued in favour of the
petitioner to be absorbed on the post of Assistant Professor on
regular basis. It is the further contention of the petitioner that
though the petitioner has submitted representation to the
respondent authorities seeking his absorption, no decision has
yet been taken on the said representation. On the contrary,
9 WP NO.8118/2015
the M.P.S.C. has issued an advertisement for filling up the post
on which the petitioner is working. In the background of the
aforesaid facts, the petitioner has prayed for regularization of
his services on the post of Assistant Professor in the stream of
Rognidan.
12. Notices were issued to the respondents in the
present matter vide order passed by this Court on 5th of
August, 2015.
On 12th of August, 2015, this Court has passed
an interim order in favour of the petitioner thereby restraining
the respondents from relieving the petitioner from the service.
By virtue of the interim order so passed, the petitioner has
been continued in the services of the respondents.
13. Dr.Deepak Panditrao Savant, who is presently
working as a Professor in the Government Ayurved College,
Osmanabad, has filed affidavit in reply on behalf of respondent
no.2. Respondent no.2 has contended that the last
temporary appointment was issued in favour of the petitioner
on 4.9.2014 for specific period wherein it is specifically
mentioned that any demand of regularization of services will
not be considered at all as the appointment is on temporary
basis. It is the further contention of respondent no.2 that the
10 WP NO.8118/2015
petitioner has accepted the said order with the conditions laid
down in the said order and, as such, he is estopped from taking
any exception to the appointment order and to seek the relief of
absorption on the basis of such order. It is further contended
that the posts of Assistant Professors in the Directorate of
AYUSH, Maharashtra State, Mumbai, are to be filled up through
M.P.S.C. and the procedure has been laid down for such
selection. It is the further contention of respondent no.2 that
vide Government circular dated 25th August, 2005, the State
Government has issued the policy, not to regularize the
temporary appointments. It is further contended that all the
vacancies of Assistant Professors are to be filled by nomination
by MPSC only. It is further contended that if the request of
the petitioner is accepted, that would result in backdoor entry
of the petitioner which is impermissible in view of the judgment
of the Hon'ble Apex Court in Secretary, State of Karnataka
and Ors. Vs. Uma Devi and Ors. (2006) 4 SCC 1. It is
further contended that the judgment delivered by this Court in
Writ Petition No.2046/2010, dated 19th October, 2013, would
not apply to the case of the petitioner since the facts are quite
distinguishable of both the cases.
The petitioner has filed rejoinder to the affidavit in reply
filed by respondent no.2 taking exception to the contentions
11 WP NO.8118/2015
raised in the said affidavit in reply.
14. Heard Shri Kadethankar, learned Counsel appearing
for the petitioner and Shri S.B.Yawalkar, learned A.G.P. for
respondents. Perused the document filed on record. It is not
in dispute that the petitioner is holding the required
qualification for appointment on the post of Assistant Professor.
It is further not in dispute that the petitioner has been
continuously working on the post of Assistant Professor since
31.1.2009 with some technical breaks. It is further not in
dispute that from the year 2009 onwards respondents have
issued about fifteen written appointment orders appointing the
petitioner on the post of Assistant Professor on temporary
basis. It is further not in dispute that the selection of the
petitioner was made by the duly constituted Selection
Committee after having followed the selection process as laid
down in the Government Resolution dated 30th of August,
2008.
15. The petitioner is claiming regularization of his
services on the post of Assistant Professor in the stream of
Rognidan within the services of the respondent authorities on
the strength of the directions issued by the learned Division
12 WP NO.8118/2015
Bench of this Court in the case of Sachin Ambadas Dawale
and Others V/s. The State of Maharashtra and another,
reported in 2014(2) Mh.L.J. 36. As has been argued by the
learned Counsel appearing for the petitioner though aforesaid
petition was pertaining to the absorption / regularization of the
services of Lecturers in different Departments of the
Government Polytechnics in the State of Maharashtra, the
observations made and the conclusion recorded by the Division
Bench of this Court in the said judgment cannot be restricted
only to the Government polytechnics in the State and are liable
to be extended to all similarly situated employees irrespective
of the Department of the State wherein they are serving. On
perusal of the aforesaid judgment, we find force in the
submission so made on behalf of the petitioner.
16. The issue involved in the aforesaid case was
whether the appointments of the petitioners / employees in the
said petition can be said to be backdoor entry in the
Government employment when the said employees were
selected by a duly constituted Selection Committee and were
holding the required qualification for the said post merely
because they were not selected by the M.P.S.C.
13 WP NO.8118/2015
17. During the course of the argument in the said
matter, petitioner brought to the notice of the Division Bench
that the Government of Maharashtra vide its communication
dated 29th of March, 2008, had informed the Director of
Education that the Teaching posts which fall within the purview
of the M.P.S.C. have been taken out from the purview of the
M.P.S.C. and were to be filled only on the basis of interviews.
It was further brought to the notice of the Division Bench that
in view of the directions so issued, the services of (i) Shikshan
Sevaks working in the private schools appointed on contractual
basis (ii) Gram Sevaks appointed on contractual basis (iii)
3761 employees appointed in various Departments and,
Mantralaya, who were not selected through the process of
Selection Board (iv) Lecturers working in Government Medical
Colleges and Government Dental Colleges, who were appointed
on contractual basis (v) the Assistant Engineers, Class II in the
Maharashtra Engineering Services, were regularized by the
Government of Maharashtra.
As against it, it was the contention of the Government
before the learned Division Bench that the employees who are
appointed on contractual basis and who have accepted
employment with full knowledge that they cannot claim
regularization or permanency, were not entitled for claiming
14 WP NO.8118/2015
any relief. The reliance was placed by the State Government
on the judgment in the case of Secretary, State of
Karnataka and others Vs. Umadevi (AIR 2006 SC 1806)
to urge that as per the law laid down by the Apex Court in the
said judgment, it was not possible for the State to confer
regularization or permanency on the petitioners as the
appointments of the petitioners were not according to the Rules
and not through the M.P.S.C.
18. The argument so advanced on behalf of the
State was rejected by the learned Division Bench. The
learned Division Bench has observed that the judgment in the
case of Umadevi (Supra), would not be applicable in the facts
of the said case since the petitioners in the said case were
working on the sanctioned posts and that they were selected by
resorting to the due selection process and by the duly
constituted Selection Committee, and further that, as the State
has extracted the work from the said petitioners for years
together. The learned Division Bench has further observed
that, the petitioners cannot be deprived of the right of regular
employment when their entry can neither be termed as illegal
nor back-door.
We find that while making appointment of the petitioner
15 WP NO.8118/2015
on the post of Assistant Professor, may be for a fixed period,
and on ad hoc basis, the selection process has been duly
followed. As stated earlier, a proper advertisement was issued
before making such appointment and the selection of the
petitioner was made by the duly constituted Selection
Committee. The petitioner was, admittedly, holding the
required qualification for such appointment. The record
further reveals that first such appointment was issued in favour
of the petitioner on 31st January, 2009, and thereafter his
services were continued for considerably long period thereafter.
The material on record shows that in the period between 31st
January, 2009 to 1.9.2015, total 15 appointment orders were
issued in favour of the petitioner with some technical breaks. It
is further not the case of the respondents that the petitioner
was not performing his duties properly, efficiently and to their
satisfaction. The material on record further reveals that in the
period between 2009 to 2014, no advertisement was issued for
filling in the post through M.P.S.C.
19. Similar argument, as was advanced on behalf
of the State before the learned Division Bench at Nagpur, in the
case of Sachin Ambadas Dawale (cited supra), has also
been advanced in the present case. In the present case also
16 WP NO.8118/2015
the learned A.G.P. has heavily relied upon the judgment of the
Hon'ble Apex Court in Uma Devi's case (cited supra).
In the matter of Sachin Ambadas Dawale (cited
supra), the learned Division Bench at Nagpur has elaborately
dealt with the ratio laid down in Uma Devi's case, and in which
circumstances the same is to be applied. In paragraph No.14
of the said judgment, the learned Division Bench has observed
thus:
"
It could be clearly seen that the issue
before the Apex Court in case of Secretary, State of
Karnataka & Ors. V/s. Umadevi & Ors. (supra) was
pertaining to the appointments which were made
clandestinely and without advertisement and the
persons were appointed without following due selection
process. The facts of the present case are totally
different. In the present case the petitioners have been
appointed after the posts were advertised, they were
selected in a selection process by Committee of Experts
duly constituted as per the said Government Resolution.
In that view of the matter, the law laid down by the
Apex Court in the case of Secretary, State of
Karnataka & Ors. V/s. Umadevi & Ors. (supra)
would not be applicable to the facts of the present case.
"
The observations made in paragraph nos. 16 and 17 are also
relevant for deciding the controversy raised in the present
issue, which are thus:
"16. In our view the submissions made on behalf
of the respondents relying on the judgment in the case of
Secretary, State of Karnataka & Ors. V/s. Umadevi
& Ors. (supra) would not be applicable in the facts of the
present case. It is undisputed that the posts, in which the
petitioners are working, are sanctioned posts. As
discussed earlier, the Government of Maharashtra had
issued the resolution dated 2nd August, 2003 by which
the Selection Committee came to be constituted for the
17 WP NO.8118/2015
selection of the candidates. The respondents have not
disputed that though the petitioners were initially
appointed for a fixed term, they are continued in service.
It is not disputed that the leave facility is made available
by the resolution dated 18th February, 2006 to such
employees. The respondents have stated in their affidavit
that the monthly pay to these employees has been
increased. It is not disputed that the petitioners are
having the qualifications required for the posts in which
they are working. The respondents have not disputed that
the appointments for the teaching posts are taken out of
the purview of the MPSC as informed by the
communication dated 29th March, 2008.
17. The submission on behalf of the respondents
relying on the judgment of Secretary, State of
Karnataka & Ors. V/s. Umadevi & Ors.(supra) cannot
be accepted in the facts of the present case. In above
case, the Hon'ble Supreme Court has observed in
paragraph 3 of the judgment that the States have
resorted to irregular appointments, especially in the lower
rungs of the service, without reference to the duty to
ensure a proper appointment procedure through the
Public Service Commission "or otherwise as per the rules
adopted" and to permit these irregular appointees or
those appointed on contract or on daily wages, to
continue year after year, thus, keeping out those who are
qualified to apply for the post concerned and depriving
them of an opportunity to compete for the post. The
Hon'ble Supreme Court has observed that Courts should
desist from issuing orders preventing regular selection or
recruitment at the instance of such persons and from
issuing directions for continuance of those who have not
secured regular appointments as per procedure
established. In the present case though the petitioners
are not selected through MPSC, it is undisputed that the
petitioners are selected after the procedure for selection
is followed and through the duly constituted Selection
Committee as constituted by the Government of
Maharashtra. The advertisement was issued before the
petitioners were selected and all interested candidates
had applied for the posts for which the petitioners are
selected. Thus, it cannot be said that the petitioners have
got the employment through back door entry. It cannot
be said that the candidates qualified for the posts were
deprived of the opportunity to compete for the selection
for the posts in which the petitioners are working.
In case of Union Public Service Commission V/s.
Girish Jayanti Lal Vaghela and Others reported in 2006
18 WP NO.8118/2015
(2) SCALE 115 the Hon'ble Supreme Court has laid down
as follows :-
"Article 16 which finds place in Part III of the
Constitution relating to fundamental rights provides
that there shall be equality of opportunity for all
citizens in matters relating to employment or
appointment to any office under the State. The
main object of Article 16 is to create a
constitutional right to equality of opportunity and
employment in public offices. The words
"employment" or "appointment" cover not merely
the initial appointment but also other attributes of
service like promotion and age of superannuation
etc. The appointment to any post under the State
can only be made after a proper advertisement has
been made inviting applications from eligible
candidates and holding of selection by a body of
experts or a specially constituted committee whose
members are fair and impartial through a written
examination or interview or some other rational
criteria for judging the inter se merit of candidates
who have applied in response to the advertisement
made. A regular appointment to a post under the
State or Union cannot be made without issuing
advertisement in the prescribed manner which may
in some cases include inviting applications from the
employment exchange where eligible candidates
get their names registered. Any regular
appointment made on a post under the State or
Union without issuing advertisement inviting
applications from eligible candidates and without
holding a proper selection where all eligible
candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16 of
the Constitution (See B.S. Minhas Vs. Indian
Statistical Institute and others AIR 1984 SC 363)."
The said judgment is considered by the Hon'ble Supreme
Court in case of Secretary, State of Karnataka & Ors. V/s.
Umadevi & Ors. (supra). "
20. Considering the facts of the present case, we find
that the observations made as above by the learned Division
Bench at Nagpur would squarely apply to the case of the
19 WP NO.8118/2015
petitioner also. It cannot be said that the petitioner has been
appointed arbitrarily or haphazardly or clandestinely without
issuing advertisement and without giving an opportunity to all
the eligible candidates to participate in the selection process.
The material on record clearly shows that an advertisement was
issued inviting applications from the eligible candidates and in
the open selection process, the petitioner was selected and
subsequently appointed on the post of Assistant Professor. It
is also not the case of the respondents that any illegality took
place during the selection process. It is further not in dispute
that after his selection, the petitioner has been working for the
period of about seven years. Admittedly, during the entire
aforesaid period, the appointments, which were made, were
made only through the process by which the petitioner was
selected. It is not the case that during the said period the
M.P.S.C. was also conducting the selection process
simultaneously. It, therefore, cannot be said that the
petitioner had choice to participate in the selection process
through the M.P.S.C. as well as through the Committees
constituted under the concerned Government Resolution.
In the above circumstances, as observed by the learned
Division Bench in the case of Sachin Ambadas Dawale and
Others (supra), since the State Government has not held the
20 WP NO.8118/2015
selection process for years together through the M.P.S.C., the
petitioner has become over aged now and would not be in a
position to participate in the selection process through the
M.P.S.C. As such, the contention raised by the respondents in
their affidavit in reply that, the petitioner has opportunity to get
selected through the proper process of M.P.S.C., cannot be
accepted. As averred by the petitioner in the affidavit in
rejoinder, after selecting one candidate from open category
through M.P.S.C., following the advertisement of 2013, still,
there is one vacancy from the open category. From the
documents filed on record by the petitioner it is revealed that
the respondents are intending to fill up the said post, again, on
temporary basis and an advertisement has been, therefore,
issued inviting applications for temporary appointment on the
said post.
Considering the facts as aforesaid, we see no reason as to
why the petitioner, who is otherwise eligible, and qualified for
the post of Assistant Professor, and who has been selected by a
duly constituted Selection Committee appointed by the
Government of Maharashtra, and who has been appointed on
the sanctioned post after issuance of advertisement, and
following the regular procedure of selection, shall not be
absorbed permanently on the said post on which he is presently
21 WP NO.8118/2015
working.
21. It is brought to our notice that the learned Division
Bench of this Court in bunch of Writ Petitions ( WP
No.3849/2014 and others), decided on 24th of February, 2015,
has directed regularization of the petitioners in the said writ
petitions relying on the earlier judgment of the Division Bench
of this Court in the case of Sachin Ambadas Dawale and
Others (cited supra).
ig Moreover, when the State Government
has regularized the services of Shikshan Sevaks, Gram Sevaks,
Lecturers in Government Medical and Dental Colleges, the
Assistant Engineers, Class II, taking out the said appointments
out of the purview of the M.P.S.C., the case of the petitioner
also deserves to be considered on the same line. For the
reasons stated above, we are inclined to allow the present writ
petition.
22. Hence, the following order:
ORDER
a) Writ petition is allowed.
b) Respondents are directed to regularize the services
of the petitioner and absorb him on the post of Assistant
22 WP NO.8118/2015
Professor in the stream of Rognidan.
c) The petitioner shall be entitled for the regular salary
for the post of Assistant Professor in the stream of Rognidan
w.e.f. 1st of March, 2016. The petitioner, however, would not
be entitled to claim monetary benefits in respect of his past
services rendered by him inspite of his regularization. The
petitioner shall be entitled for continuity in services for all
purposes except the monetary benefits.
d) Rule is made absolute in above terms. No order as
to costs.
(P.R.BORA) (S.S.SHINDE)
JUDGE JUDGE
...
AGP/8118-15wp
