Bombay High Court
Kiran Chhaganlal Pawar vs The State Of Maharashtra And ... on 2 May, 2016
Bench: S.S. Shinde
11576.14WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11576 OF 2014
Ms. Kiran Chhaganlal Pawar
Age : 34 years, Occ : Govt. Service,
R/o Datta Nagar, Wanjola road,
Opp. Datta Mandir, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
ig ..PETITIONER
-VERSUS-
1. The State of Maharashtra
Through : Commissioner,
Integrated Child Development Service
Scheme, Maharashtra State,
Raigad Bhavan, 1st Floor,
Rear Wing, CBC Belapur,
District Thane.
2. The Commissioner,
Women & Child Development,
Commissionerate, Pune-1.
3. District Women & Child Development
Officer, Aurangabad.
4. Chief Development Project Officer
(Urban), Bhusawal, Gangaram Plot,
Plot No. 3105, B-2/1 to 4,
Rathod Tower,
Behind Municipal High School,
Bhusawal, District Jalgaon.
..RESPONDENTS
...
Advocate for Petitioner : Mr. S.D. Kulkarni
h/f Mr.Kulkarni Sanket S.
AGP for Respondent/State : Mr. V.S. Badakh
...
::: Uploaded on - 03/05/2016 ::: Downloaded on - 30/07/2016 00:40:09 :::
11576.14WP
2
CORAM: S.S. SHINDE &
SANGITRAO S. PATIL, JJ.
RESERVED ON : April 20, 2016
PRONOUNCED ON : May 2, 2016
...
JUDGMENT (PER S.S. SHINDE,J)
This Petition takes exception to the
impugned judgment and order dated 8th
December, 2014 passed by the learned Member
of the Maharashtra Administrative Tribunal,
("MAT" for short) Mumbai, bench at Aurangabad
in Original Application No. 653 of 2013 and
the show-cause notice dated 31st August, 2013.
2. The brief facts, as disclosed from
the memo of the Petition, leading to filing
of this Writ Petition are that in the year
2007, Respondent No.1 published an
advertisement for filling up the post of
Supervisor from the female candidates. It is
submitted that the petitioner, being
qualified for the said post, sent necessary
application along with various documents on
15th November, 2007. On 26th July, 2009, the
petitioner appeared for written examination
and successfully passed the same. It is
submitted that thereafter, the petitioner was
called for interview on 7th August, 2009.
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Thereafter, on 30th October, 2009, the
petitioner was informed that she was selected
for the post of Supervisor in the Scheduled
Tribe category and hence, as per the
Government Resolution dated 16th August, 2000,
she should submit the caste validity
certificate. It is submitted that on 6th
November, 2009, the petitioner sent an
application along with her relieving letter
from the earlier employment, caste
certificate and caste validity certificate.
3. It is submitted that the order dated
10th November, 2009 was issued to the
petitioner informing that she has been
appointed on the vacant post of Supervisor in
the Child Development Service Scheme, on the
terms and conditions mentioned therein. It is
submitted that as per the appointment order
dated 10th November, 2009, the petitioner
joined the services on 19th November, 2009. It
is submitted that in the month of July, 2010,
the petitioner was given the first increment
and thereafter the second increment in the
month of July, 2011. The petitioner has
become permanent employee, after completion
of probation period of two years and the
service of the petitioner were continued till
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31st August, 2013 and even today she continues
to be in service. It is submitted that for
the first time on 31st August, 2013, the show-
cause notice was issued to the petitioner by
respondent No.2, stating that she applied
from the category of female heir of ex-
soldier/ex-serviceman though she was not
eligible and qualified and had given
incorrect information, therefore, calling
upon her to explain why her services should
not be terminated. It is further submitted
that on 3rd October, 2013, the petitioner gave
her explanation/reply to the said show-cause
notice and pointed out that she had applied
only from the category of S.T. and not from
the category of the heir of ex-serviceman/ex-
did not accept her explanation. Hence, the
petitioner filed Original Application No. 653
of 2013 on 31st August, 2013 before the MAT.
It is submitted that the MAT by its judgment
dated 8th December, 2014 dismissed Original
Application filed by the petitioner by
observing that the last candidate selected
from the post of ST category was having
higher marks than that of the petitioner and
hence the petitioner was not qualified for
the post of ST, and it is clear that she was
11576.14WP
selected from the category of heir of ex-
serviceman/soldier. Therefore, being
aggrieved by and dissatisfied with the above
judgment, the petitioner has filed the
present Writ Petition under Article 226 and
227 of the Constitution of India.
4. The learned counsel appearing for
the petitioner submitted that the petitioner
never had applied from the category of female
heir of ex-soldier. She had not given any
documents to support the said claim. The
Respondents were not justified in coming to
the conclusion that the petitioner had given
incorrect information for selection on the
said post. It is submitted that the
Respondents ought to have considered that
from the various documents produced by the
petitioner, i.e. application, letter dated 7th
August, 2009, further letter dated 30th
October, 2009 and communication sent by the
petitioner dated 6th November, 2009, the
petitioner was claiming to be a candidate
from Scheduled Tribe (S.T.) category and all
these documents were given to support the
said claim; and even appointment order refers
her selection from S.T. category. It is
submitted that though this Court ordered to
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maintain status-quo, by order dated 29th
January, 2015, the services of the petitioner
have been terminated illegally during
pendency of the present Writ Petition. In
fact, the petitioner has sent an application
dated 28th January, 2015 for leave during the
period 28th January, 2015 to 2nd April, 2015,
as the petitioner was called for giving
instructions by her Advocate. The learned
counsel appearing for the petitioner invited
our attention to paras 11-A and 11-B of the
Petition, which are inserted by way of
amendment, and submitted that the Respondents
had given notice calling upon the petitioner
to explain as to why her services should not
be terminated. However, without waiting
further, the Respondents terminated the
services of the petitioner during the
pendency of the Petition. Respondent No.2
issued the said show-cause notice in
arbitrary manner, contrary to Rule 5 of the
Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Rules,
1981 and contrary to the law laid down by the
Hon'ble Supreme Court. It is submitted that
the petitioner's selection was from the
scheduled tribe category and to that effect
the validity certificate was also submitted
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by her. Therefore, the impugned action
against the petitioner was unwarranted. It is
submitted that after joining the services on
19th November, 2009, the petitioner completed
her probation period and she was given two
increments and thereafter, for the first time
on 31st August, 2014, the show-cause notice
was issued to the petitioner informing her
that by giving incorrect information, she had
obtained appointment to the post of female
heir of the ex-serviceman, when she never had
made such a claim. Even in her reply dated 3rd
October, 2013, it was specifically stated by
her that she has never applied under the
category of the female heir of ex-soldier/ex-
serviceman and all the documents submitted by
her would show that she was claiming a post
from S.T. category. It is submitted that the
petitioner has completed more than five years
service and prior to issuing show-cause
notice, she completed about 3 years service
and hence she becomes permanent employee, and
therefore, the Respondents before terminating
the services of the petitioner ought to have
followed the proper procedure. In support of
this submission, the learned counsel
appearing for the petitioner relied on the
ratio laid down by the Hon'ble Supreme Court
11576.14WP
in the case of Basudeo Tiwary V/s Sido Kanhu
Uniersity and others1 and the judgment of
Division Bench of this Court at Principal
Seat in the case of Masuood Alam Khan-Pathan
V/s State of Maharashtra and others 2. He
submitted that the proper opportunity to
defend the case during enquiry has not been
given by the Respondents to the petitioner.
It is submitted that the MAT has not properly
considered the contentions of the petitioner
that total 24,939 applications were received
for the post of Supervisor and after
necessary scrutiny, only 21424 applications
were considered as valid and from that only
the selection is made after written and oral
examination, and hence it cannot be accepted
that by mistake the petitioner was selected
from the category of S.T. It is clear from
the order dated 10th November, 2009 and order
dated 18th November, 2009 issued to the other
three candidates that though Tadvi
Pravinabano Raheman was shown from S.T.
category and she had secured only 87.5 marks
and the petitioner had secured 110 marks, the
said Tadvi Pravinabano Raheman continued to
be in service, which amounts to arbitrary
exercise of powers by the Respondents. It is
1 AIR 1998 SC 3261
2 2009(5) Mh.L.J. 68
11576.14WP
submitted that the petitioner was given two
promotions after appointment. She was sent to
training on 16th February, 2010, 7th July, 2011
and in July, 2013. She has completed the said
training. Therefore, she acquired status of
permanent employee. It is submitted that the
petitioner belongs to Hindu Pardhi community
and considering the intention and object of
the reservation policy, the respondents were
not justified in harassing the candidates
from the schedule tribe, when she had been
working on the said post for last more than 8
years and had become permanent employee.
Therefore, relying upon the pleadings in the
Petition, grounds taken therein, annexures
thereto and the judgments cited supra, the
learned counsel appearing for the petitioner
submitted that the Petition deserves to be
allowed.
5. Though sufficient opportunity was
granted to the Respondents, no reply is
filed. In fact, this Writ Petition pertains
to the year 2014 and the Petition was listed
for hearing on a number of occasions.
However, the Respondents did not bother to
file reply.
11576.14WP
6. The learned A.G.P. appearing for the
Respondent/State, relying upon the reasons
recorded by the MAT, submitted that the MAT
has considered the documentary evidence,
which was placed on record, and thereafter
came to the conclusion that even if the
petitioner has not applied from the category
of heir of ex-serviceman, she could not
qualify from the category of S.T. Therefore,
he submits that the Petition is devoid of any
merits and same may be rejected.
7. We have given careful consideration
to the rival submissions advanced by the
learned counsel appearing for the parties.
With their able assistance, we have perused
the pleadings in the Petition, grounds taken
therein and annexures thereto.
8. Upon careful perusal of the impugned
judgment and order passed by the MAT, it
appears that the Tribunal has adverted to the
submissions of the learned counsel appearing
for the applicant from paras 2 to 4. In paras
5 and 6, the Tribunal has adverted to the
submissions of the learned counsel appearing
for the State. In para 8 of the impugned
judgment, the MAT has recorded findings/
11576.14WP
reasons, after perusal of the original record
received from the office of Respondent No.1.
The Tribunal has observed that in the
application form under the caption "whether
the applicant is Ex-serviceman, Freedom
Fighter, Project Affected Person', the
petitioner had tick marked () against column
"Heir/ward of Ex-serviceman". Therefore, the
MAT recorded the finding of fact that the
petitioner in her form had declared that she
was applying from the category of S.T.
(Heir/Ward of Ex-serviceman). It further
appears that the MAT has gone through the
merit list of the candidates, which is a part
of the original record received from the
office of Respondent No.1 and has observed
that in the merit list, there are 14
candidates, who are from S.T. (General). The
14th, i.e. the last candidate in the said
category is one Chavan Vaishali Yuvraj, who
had secured 120 marks. The petitioner -
Ku. Kiran Chhaganlal Pawar - is the first
between the two candidates in the category of
Heir of Ex-serviceman having secured 110.5
marks. Therefore, the MAT recorded the
finding that the applicant did not score well
enough to qualify from the category of ST
(General) and she qualified from the category
11576.14WP
of S.T. (Female) (heir/ward of ex-
serviceman). The MAT also adverted to the
appointment letter issued to the petitioner
and observed that in clause (10) under `terms
and conditions of appointment', it is stated
that the petitioner's appointment is on the
basis of the documents and certificates
submitted by her and if it is revealed that
the documents or information provided by her
are false, her appointment will be cancelled.
Therefore, MAT held that there is no reason
to interfere with the impugned notice of
termination dated 29th January, 2015 and
hence, the Original Application is without
any merits and accordingly, Original
Application was rejected.
9. We have carefully perused the record
received from the Registry of the MAT and in
particular, the copy of the application
filled in by the petitioner for the post of
Supervisor from the female candidates. The
finding recorded by the Tribunal that in the
application form under caption "whether the
applicant is Ex-serviceman, Freedom Fighter,
Project Affected Person', the applicant had
tick marked () against column "Heir/ward of
Ex-serviceman" are in consonance with the
11576.14WP
copy of the application. We have also perused
the merit list of the selected candidates.
The findings recorded by the MAT that "in
the merit list, there are 14 candidates, who
are from S.T. (General). The 14th, i.e. the
last candidate in the said category is one
Chavan Vaishali Yuvraj, who had secured 120
marks. Applicant - Ku. Kiran Chhaganlal Pawar
- is the first between the two candidates in
the category of Heir of Ex-serviceman and she
had secured 110.5 marks", so also "the
petitioner did not score well enough to
qualify from the category of ST (General) and
she qualified from the category of S.T.
(Female) (heir/ward of Ex-serviceman) are in
consonance with the merit list of the
candidates, which is a part of the record.
Upon perusal of the copies of the documents
placed on record which clearly show that the
show cause notice was issued to the
petitioner on 31st August, 2013 and after
seeking response of the petitioner, her
services came to be terminated on 23rd
January, 2015. Therefore, the reliance placed
by the learned counsel appearing for the
petitioner on the judgments cited supra is
misplaced in the facts of the present case,
in as much as, in the present case, show-
11576.14WP
cause notice was given and after seeking
response of the petitioner, her services have
been terminated. The findings recorded by the
MAT are in consonance with the documents in
original record maintained by the
Respondents. Therefore, there is no reason to
interfere in the impugned judgment and order
of the MAT. Hence the Petition stands
rejected.
Sd/- Sd/-
(SANGITRAO S. PATIL, J.) (S.S. SHINDE, J.)
...
SGA
