Bombay High Court
Mrs Sangita Vithalrao Nimbolkar & ... vs The State Of Mah. & Others on 8 June, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1146 OF 2005
1) Miss Sangita d/o Vithalrao
Nimbolkar, aged about 24
years, occupation : Service,
r/o Balapur, Taluq Balapur,
District Akola.
2) Keshav s/o Balairam Bhalai,ig
aged about 31 years,
occupation : service, r/o Akot,
Taluq Akot, District Akola.
3) Bharat s/o Madhukarrao Rane,
aged about 30 years,
occupation : service,
r/o A-16, Z.P. Colony, Khadki,
Taluq and District Akola. ... Petitioners
- Versus -
1) The State of Maharashtra, through
its Secretary, Department of
Urban Development Mantralaya,
Mumbai-400 032.
2) The Collector, Akola.
3) Municipal Council, Balapur,
Taluq Balapur, District Akola,
through its Chief Officer.
4) Municipal Council, Akot,
Taluq Akot, District Akola,
through its Chief Officer.
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5) The Municipal Council, Telhara,
Taluq Telhara, District Akola.
6) Kisan s/o Sukhdeo Lokhande,
r/o Jambhanun, Post Kothadi,
Taluq Barshi Takli, District
Akola. ... Respondents
-----------------
Shri A.A. Kathane and Shri S.D. Chopde, Advocates for
petitioners.
Shri N.R. Patil, Assistant Government Pleader for
respondent nos.1 and 2.
----------------
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 8, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Heard Adv. Kathane with Adv. Chopde for
petitioners and Shri Patil, learned Assistant Government
Pleader for respondent nos.1 and 2.
2) During hearing, we find that three petitioners
are working with three different employers, namely,
respondent nos.3, 4 and 5. These respondents are
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distinct Municipal Councils constituted under the
provisions of Maharashtra Municipal Councils, Nagpur
Panchayats and Industrial Townships Act, 1965. The
petitioner no.1 is working under respondent no.3
Municipal Council, Balapur.
3) Adv. Kathane informs that after completing
proper recruitment
ig process, petitioner no.1 was
appointed by respondent no.3 Municipal Council in
Class III cadre and she started working. Our attention
is also invited to copy of appointment order dated
15/10/2003 issued to petitioner no.1. Thereafter
recruitment process was questioned by respondent
no.6 Kisan Lokhande in Writ Petition No. 4199/2003. He
points out that his name was included in the select list
initially as he had secured more marks. However,
because of availability of another candidate with same
surname, his name was deleted and injustice was done.
That writ petition was allowed by this Court on
12/3/2004 and Collector, Akola (present respondent
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no.2) was directed to hold selection process afresh.
4) In view of these directions, services of
petitioner no.1 were sought to be terminated.
Challenging that termination, she filed Writ Petition
No.2164/2004 and on 22/6/2004 this Court set aside
termination with a direction to Municipal Council to
extend an opportunity to petitioner no.1. Accordingly a
show cause notice was served upon petitioner no.1.
The petitioner no.1 replied to it on 25/10/2004. Without
considering her stand and mechanically only because
of earlier directions of this Court, her services have
been terminated. According to Adv. Kathane,
impugned order dated 13/12/2004 therefore shows
total non application of mind and is unsustainable. He
places more emphasis on the fact that petitioner no.1 is
not found guilty of any fraud or wrongful act and she
has been selected on her own merit. Hence, on
account of some lapse committed by some other
person, her selection could not have been declared as
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vitiated.
5) Adv. Kathane also adds that since her initial
selection in 2003 because of interim orders granted by
this Court in the present matter on 1/8/2005, petitioner
no.1 is in employment even today. He, therefore, states
that as on today, she has put in more than 13 years of
service. He points out that respondent no.6, who had
filed Writ Petition No. 4199/2003 has chosen not to
appear before this Court to contest the matter. He
claims that said respondent, therefore, does not appear
to be interested.
6) Shri Patil, learned Assistant Government
Pleader appearing for respondent nos.1 and 2 supports
the impugned order. He points out that judgment
dated 12/3/2004 passed by this Court in Writ Petition
No. 4199/2003 has become final and, therefore,
respondent Authorities are duty-bound to implement
the same. Opportunity was accordingly given to
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petitioners and petitioner no.1 as also other petitioners
submitted their reply. He submits that selection
process is found to be vitiated and, therefore, there is
no merit in the petition.
7) In reply arguments, Adv. Kathane submits that
though in judgment dated 12/3/2004, this Court
directed Municipal Councils to initiate fresh selection
process, till date that process has not been initiated.
8) It appears that for all three Municipal Councils,
only one selection process was carried out by
respondent no.2 Collector. Grievance of respondent
no.6 Kisan Lokhande that though he had secured more
marks, he was denied participation therein for no fault
on his part has been turned down by this Court. This
Court found that other candidate by name Vijay
Lokhande had secured 104 marks while petitioner
before it, namely, Kisan Lokhande had secured only 51
marks. However, while preparing select list,
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inadvertently in place of name of Vijay, name of Kisan
was displayed.
9) We need not go into niceties of dispute raised
in Writ Petition No. 4199/2003. The operative directions
issued by this Court as contained in paragraphs 20 and
21 of the said judgment are very clear. The selection
process is found to be vitiated and hence, Authorities
were directed to hold selection process afresh.
10) The Authorities have till date not held any
selection process. Services of the petitioners before
this Court were sought to be terminated only because
of directions contained in judgment dated 12/3/2004.
Accordingly show cause notices were given to the
petitioners. Their reply was obtained and the
impugned order of termination has been passed
thereafter. The impugned order mentions the judgment
of this Court dated 12/3/2004 in Writ Petition
No.4199/2003. The petitioners have not pointed out as
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to how said judgment could have been avoided either
by Municipal Councils or by Collector. Their claim that
they are not responsible for resultant state-of-affairs is
totally irrelevant in this background. The judgment
dated 12/3/2004, which has attained finality, needed to
be executed and accordingly has been executed after
giving due opportunity to the petitioners.
11) However, facts as available now show that
petitioners are continuing in employment because of
interim orders passed in this writ petition. They have
put in about 13 years of service with their respective
employers and directions issued by this Court on
12/3/2004 have not been complied with by the
employers. We, therefore, direct the respective
Municipal Councils to implement the directions as
contained in the judgment of this Court dated
12/3/2004 in Writ Petition No. 4199/2003 within a
period of six months from today. We also grant
petitioners opportunity to participate in that selection
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process. Their present age shall be ignored by the
respondent Authorities for such selection process.
However, till the candidates duly selected at the end of
such selection process report for duty, on-going
services of the petitioners shall not be dispensed with.
12) Accordingly, with the above directions, we
dispose of the petition. Rule is discharged. No costs.
JUDGE JUDGE
khj
