Bombay High Court
Shri. Atrik Dnyaneshwar Garate ... vs State Of Maharashtra, Thr. Its ... on 29 July, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1713/2015
WITH
WRIT PETITION NO.1796/2015
...
WRIT PETITION NO.1713/2015
Agricultural Produce Market
Committee, Ghatanji, through its
Chairman Shri Abhishek s/o
Shankarrao Thakre, Aged 37 years,
R/o Amadi, Post Shiroli,
Tq. Ghatanji, District Yeovatmal. .. PETITIONER
.. Versus ..
1. The State of Maharashtra,
through its Secretary Ministry
of Co-operation, Marketing and
Textiles, Mantralaya, Mumbai -32.
2. The District Deputy Registrar
Co-operative Society, Yeovatmal,
Tahsil & district Yeovatmal.
3. Shri Raju Todsam, Aged adult,
Occupation: Member of Legislative
Assembly Arni, R/o Uttarwar Layout,
Pandharkawada, Tahsil
Pandharkawada, District Yeovatmal. .. RESPONDENTS
Mr. A.M. Ghare, Advocate for Petitioner.
Mrs. Geeta Tiwari, AGP for Respondent Nos. 1 & 2.
Mr. Subhash Paliwal, Advocate for Respondent No.3.
....
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WRIT PETITION NO.1796/2015
1. Shri Atrik Dnyaneshwar Garate,
Aged about years, Occ: Service,
R/o At Mejda, Post Jamb,
Tah. Ghatanji, Dist. Yavatmal.
2. Shri Chaitannya Prakashrao Virdande,
Aged about years, Occ: Service,
R/o at Nehru Nagar, Ghatanji,
Tah. Ghatanji, Distt. Yavatmal.
3. Shri Sameer Siddhiyik Nagaria,
Aged about years, Occ: Service,
R/o Munsaji Ward, Ghatanji,
Tah. Ghatanji, Distt. Yavatmal.
4. Ku. Ashwini Gajanan Sawarkar,
Aged about years, Occ: Service,
R/o Anand Nagar, Ghatanji,
Tah. Ghatanji, Distt. Yavatmal.
5. Rajesh Raghobaji Ghode,
Aged about years, Occ: Service,
R/o Gururdeo Ward, Ghatanji,
Tah. Ghatanji, Distt. Yavatmal. .. PETITIONERS
.. Versus ..
1. The State of Maharashtra,
through its Secretary Ministry
of Co-operation, Marketing and
Textiles, Mantralaya, Mumbai -32.
2. The District Deputy Registrar
Co-operative Society, Yeovatmal,
Tahsil & district Yeovatmal.
3. Agricultural Produce Market Committee,
Ghatanji, through its Chairman
Shri Abhishek s/o Shankarrao Thakre,
Aged 37 years, R/o Amadi,
Post Shiroli, Tq. Ghatanji,
District Yeovatmal.
4. Director of Marketing, State of
Maharashtra, Pune. .. RESPONDENTS
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Mr. R.L. Khapre, Advocate for Petitioners.
Mrs. Geeta Tiwari, AGP for Respondent Nos. 1, 2 & 4.
Mr. A.M. Ghare, Advocate for Respondent No.3.
....
CORAM : B.R. Gavai & V.M. Deshpande, JJ.
DATED : July 29, 2016.
ORAL JUDGMENT (per B.R. Gavai, J. )
1.
Rule. Rule made returnable forthwith. Heard finally by
consent of learned counsel appearing for the parties.
2. Both these petitions impugn the order passed by the
Director of Marketing, State of Maharashtra dated 27.03.2015
thereby granting stay to the entire selection process conducted by
the Agricultural Produce Market Committee, Ghatanji (hereinafter
referred to as "APMC" for short) and also the order dated
25.03.2015 passed by the District Deputy Registrar Co-operative
Society thereby cancelling the entire selection process.
3. The facts in brief giving rise to the present petitions are
as under:-
APMC Ghatanji had made an application to the Director
of Marketing for grant of permission to fill in the posts. The said
permission was granted on 12.01.2015. An advertisement was
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published by the APMC in daily Deshonnati calling applications for
various posts. It is the case of the APMC that the written test was
conducted on 22.03.2015. It is further their case that on the next
day, the list of candidates who had cleared the written examination
was published at 5 p.m. It is further their case that on 24.03.2015
the interviews were held and the candidates were selected. It is
further their case that on 25.03.2015 the list of successful
candidates was published, the appointment orders were issued and
on the very same day they have also joined.
4. However, it appears that subsequently a complaint was
made by respondent no.3 in Writ petition No. 1713/2015 to the
authorities. The Director of Marketing directed the District Deputy
Registrar to conduct an enquiry. Accordingly the District Deputy
Registrar through his subordinate conducted an enquiry and
submitted his report dated 25.03.2015. In the report, serious
illegalities were noticed by the District Deputy Registrar. The
Director of Marketing after noticing the said discrepancies in the
selection process, vide order dated 27.03.2015 directed the further
selection process to be stayed. It appears that in the mean time
vide order dated 25.03.2015, the District Deputy Registrar had
already cancellled the selection process. Being aggrieved thereby,
the present writ petitions.
5. Mr. Khapre, the learned counsel appearing for the
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petitioners in Writ Petition No. 1796 of 2015 which is filed on behalf
of the employees who were appointed and Mr. Ghare, the learned
counsel appearing for the petitioner- APMC in Writ Petition No.
1713/2015 submit that the orders passed by the respondents
Director of Marketing and District Deputy Registrar are totally
illegal in law. It is submitted that the impugned orders are in
violation of the principles of natural justice. Mr. Khapre, relying on
the judgment of the Apex Court in the case of Basudeo Tiwary
.vs. Sido Kanhu University and others reported in AIR 1998
Supreme Court 3261 submits that unless the principles of natural
justice are followed and an enquiry is made giving an opportunity
to the selected employees, the procedure as adopted by the
respondents is not permissible in law. It is further submitted that
the District Deputy Registrar has no authority to cancel the
selection process inasmuch as under sub-rule (5) of Rule 100 of the
Maharashtra Agricultural Produce Marketing (Development and
Regulation) Rules, 1967 (for short "APMC Rules"), the authority
vests only with the Director of Marketing.
6. Per contra, Mr. Paliwal, the learned counsel appearing on
behalf of respondent no.3 in Writ Petition No. 1713/2015
vehemently opposes the petitions. The learned counsel submits
that the dates themselves speak volumes regarding the selection
process. It is further submitted that it is impossible that the
authorities would act in a legal manner in such a short span of time
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wherein from the period between holding of the written
examination, not only issuance of appointment orders but joining of
the candidates has concluded within 48 hours. The learned counsel
submits that no other material is required to come to a conclusion
that the selection process has been done in a clandestine manner
so as to select the candidates already chosen by the Selection
Committee. The learned counsel further submitted that in view of
the provisions of sub-rule (5) of Rule 100 of the APMC Rules, the
appointments itself could not have been made without prior
approval of the Director and as such the judgment relied upon by
Mr. Khapre, would not be applicable to the facts of the present
case.
7. We find that in the present case in view of the law laid
down by the Apex Court in the case of Basudeo Tiwari (supra),
the present writ petitions deserve to be allowed on the short
ground of non-following of the principles of natural justice. We
make it clear that in view of the aforesaid judgment, it will not be
permissible for us to go into the merits of the matter at this stage
inasmuch as the impugned orders affecting the rights of the
selected employees are passed without following the principles of
natural justice. No doubt that the facts in the present case are
glaring. It is difficult to understand as to how the selection process
has been completed at such a breakneck speed. As already
observed hereinabove, the candidates appeared for written
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examination on 22.3.2015 and on the very next day i.e. 23.3.2015
the list of candidates clearing the written examination is published.
On 24.3.2015, the oral interviews are held and the candidates
were finally selected. The day thereafter the appointment orders
are issued and the candidates were permitted to join the services.
There are other glaring observations made by the District Deputy
Registrar in his report submitted to the Director of Marketing.
However, at the cost of repetition we may state that in view of the
judgment of the Apex Court in the case of Basudeo Tiwary (supra)
the petitions deserve to be allowed on the ground of non-
adherence to the principles of natural justice.
8. It will be relevant to refer to paragraph Nos. 11,12 and
13 of the judgment of the Apex Court in the case of Basudeo
Tiwary:
11. In the light of these principles of law,
we have to examine the scope of provision of
Section 35(3) which reads as follows :-
"35(3) Any appointment or promotion made
contrary to the provisions of the Act, Statutes,
rules or regulations or in any irregular or
unauthorised manner shall be terminated at any
time without notice.
12. The said provision provides that an
appointment could be terminated at any time
without notice if the same had been made
contrary to the provisions of the Act, Statutes,
Rules or regulations or in any irregular or
unauthorised manner. The condition precedent
for exercise of this power is that an appointment
had been made contrary to Act, Rules, Statutes
and Regulations or otherwise. In order to arrive
at a conclusion that an appointment is contrary
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to the provisions of the Act, Statutes, Rules or
Regulations etc. a finding has to be recorded
and unless such a finding is recorded, the
termination cannot be made, but to arrive at
such a conclusion necessarily an enquiry will
have to be made as to whether such
appointment was contrary to the provisions of
the Act etc. If in a given case such exercise is
absent, the condition precendent stands
unfulfilled. To arrive at such a finding
necessarily enquiry notice will have to be held
and in holding such an enquiry the person
whose appointment is under enquiry will have to
be issued to him. If notice is not given to him
then it is like playing Hamlet without the Prince
of Denmark, that is, if the employee concerned
whose rights are affected, is not given notice of
such a proceeding and a conclusion is drawn in
his absence, such a conclusion would not be
just, fair or reasonable as noticed by this Court
in D.T.C. Mazdoor Sabha's case (AIR 1991 SC
101). In such an event, we have to hold that in
the provision there is an implied requirement of
hearing for the purpose of arriving at a
conclusion that an appointment had been made
contrary to the Act, Statute, Rule or Regulation
etc. and it is only on such a conclusion being
drawn, the services of the person could be
terminated without further notice. That is how
Section 35(3) in this case will have to be read.
13. Admittedly in this case notice has not
been given to the appellant before holding that
his appointment is irregular or unauthorised and
ordering termination of his service. Hence the
impugned order terminating the services of the
appellant cannot be sustained. "
9. The perusal of the aforesaid judgment would reveal that
in the said case a specific power is vested with the authority to
terminate the services of an employee without notice if any
appointment or promotion is made contrary to the provisions of the
Act, Statutes, Rules or regulations or in any irregular or
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unauthorised manner. Despite the said provision being there in the
statute, Their Lordships of the Apex Court held that to arrive at
such a finding, it was necessary that an enquiry notice was issued
to the persons whose appointment was under enquiry and an
opportunity of hearing was given to them. Their Lordships further
observed that if the employee concerned whose rights are affected
is not given notice of such a proceeding and a conclusion is drawn
in his absence, such a conclusion would not be just, fair or
reasonable. Their Lordships held that in the provision which fell for
consideration before Their Lordships, there is an implied
requirement of hearing for the purpose of arriving at a conclusion
that an appointment has been made contrary to the Act, Statute,
Rule or Regulation and it is only on such a conclusion being drawn,
the services of the person could be terminated without further
notice.
10. Admittedly in the provision that fall for consideration
before us, there is no statutory provision which empowers the
authority to terminate the services without following the principles
of natural justice. In that view of the matter, we find that in the
absence of such a provision, the adherence of principles of natural
justice would be far more necessary.
11. Admittedly in the present case while passing the
impugned orders neither the petitioners who were selected
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employees, have been put on notice nor an opportunity of hearing
was given to them. We are of the considered view that on this
short ground, the petitions deserve to be allowed.
12. In that view of the matter, the impugned orders dated
27.3.2015 and 25.3.2015 passed by the Director of Marketing and
the District Deputy Registrar are quashed and set aside. The
matter is remitted back to the respondent-Director of Marketing to
pass appropriate orders in accordance with law , in view of the
observations made hereinabove, i.e. giving a notice and
opportunity of hearing to the petitioners-employees whose services
are sought to be terminated. The Director of Marketing is directed
to complete the proceedings before him within a period of three
months from today. We make it clear that we have not adverted
to the merits of the matter. The observations made hereinabove
are upon prima facie consideration of the material placed before us
and the authority to whom the matter is remitted will not be
influenced by the observations made hereinabove.
13. However, we direct that the interim arrangement which
was directed to be made as per the order passed by this Court in
Writ Petition No. 1796/2015 dated 1.4.2015, shall continue to
operate till the Director of Marketing decides the matter before
him.
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14. Rule is made absolute in the aforesaid terms with no
order as to costs.
(V.M. Deshpande, J. ) (B.R. Gavai, J.)
...
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Certificate
I certify that this judgment uploaded is a true and correct
copy of original signed Judgment.
Uploaded by : R.G. Halwai, Uploaded on : 02.08.2016
