Bombay High Court
Deepak S/O Vitthalrao Gurnule vs The City Of Nagpur Municipal ... on 3 May, 2016
Bench: V.A. Naik
wp6266.12.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6266/2012
PETITIONER: Deepak s/o Vitthalrao Gurnule
Aged 39 years, Occupation - Service,
R/o Ramnagar Colony, Rajura, Dist.
Chandrapur.
...VERSUS...
RESPONDENTS : 1. The City of Nagpur Municipal
Corporation, through its Commissioner.
2. The State of Maharashtra, through the
Secretary Urban Development Department,
Mantralaya, Mumbai - 32.
-----------------------------------------------------------------------------------------------------
Shri M.G. Bhangde, Sr. Adv. with Shri S.N. Tapadia, Adv. for petitioner
Shri J.B. Kasat, Advocate for respondent no.1
Shri N.R. Rode, AGP for respondent no.2
-----------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A. NAIK, AND
V.M. DESHPANDE, JJ.
DATE : 03.05.2016
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this writ petition, the petitioner seeks a direction to the
respondent - Nagpur Municipal Corporation to consider the candidature
of the petitioner for appointment to the post of Junior Engineer (Civil).
In pursuance of an advertisement issued by the Nagpur
Municipal Corporation on 24.10.2011, the petitioner applied for the post
wp6266.12.odt
of Junior Engineer from the Other Backward Classes. Of the eight posts of
Junior Engineers that were advertised, four were earmarked for the
General Category and four for the Other Backward Classes. The petitioner
was selected from the Other Backward Classes and his name was placed
at serial no.3 in the select list. The respondent, however, did not appoint
the petitioner on the post of Junior Engineer. On a query made by the
petitioner, the petitioner was informed by the Nagpur Municipal
Corporation that it became aware from the police verification report that
an FIR was lodged against the petitioner and on 18.5.2012, the petitioner
was arrested at 8:15 p.m. and was released on bail on 21.5.2012. After
becoming aware of the reasons for denying the candidature of the
petitioner, the petitioner has filed the instant petition seeking a direction
to the respondent - Corporation to appoint the petitioner on the post of
Junior Engineer.
Shri Bhangde, the learned Senior Counsel appearing on
behalf of the petitioner states that during the pendency of the writ
petition, by the order of the Chief Judicial Magistrate, Chandrapur, dated
4.9.2015, the petitioner is discharged under Section 239 of the Code of
Criminal Procedure for the offences punishable under Sections 420, 409,
406 read with Section 34 of the Penal Code. It is stated that in view of the
order of discharge dated 4.9.2015, it would be necessary for the
wp6266.12.odt
Corporation to appoint the petitioner on the post of Junior Engineer. The
learned Senior Counsel relied on the judgment of the Hon'ble Supreme
Court, reported in (2013) 11 SCC 67 and the judgment of the Madras
High Court, reported in (2005) 1 M.L.J. 488 to substantiate the
submission that after the acquittal - discharge in a criminal case, the
judgment would operate retrospectively and it would be deemed that the
person was not guilty of the offence. It is submitted that since the
petitioner was selected for appointment on the post of Junior Engineer, in
view of the discharge of the petitioner by the order dated 4.9.2015, a
direction to the respondent - Corporation to appoint the petitioner on the
post of Junior Engineer would be necessary.
Shri Kasat, the learned Counsel for the Nagpur Municipal
Corporation supported the action of the Corporation. It is submitted that
by the Government Resolution, dated 21.11.2007, the Corporation
Authorities are required to ensure that the antecedents of the candidates
are verified before making their appointment in the Corporation. It is
stated that as per the policy of the State Government in the Government
Resolution, dated 21.11.2007, the Corporation is required to verify
whether a crime has been registered against the candidate and/or
whether an offence is proved against him. It is submitted that the
petitioner was working as an Engineer with the Chandrapur Zilla Parishad
wp6266.12.odt
and the concerned Authority in the Chandrapur Zilla Parishad had lodged
a FIR and an offence was registered against the petitioner under Sections
420, 409, 406 read with Section 34 of the Penal Code. It is stated that in
this background, the Corporation rightly rejected the candidature of the
petitioner. It is submitted that a selected candidate would not have any
right to appointment on the post for which he is selected. It is stated that
in similar set of facts the Hon'ble Supreme Court, has by the judgment,
reported in (1996) 11 SCC 605 upheld the action on the part of the
employer of rejecting the candidature when an offence was registered
against the candidate under the provisions of the Penal Code. It is stated
that the case in hand is similar to the case, reported in (1996) 11 SCC
605. The learned Counsel relied on the judgment of the Hon'ble Supreme
Court, reported in 1991 (3) SCC 47 to substantiate his submission that a
candidate whose name is included in the merit list has no right to
appointment even if a vacancy exists. It is submitted that in this case the
appointment was not denied to the petitioner arbitrarily and the action of
the Corporation is bona fide.
On hearing the learned Counsel for the parties, it appears
that the relief sought by the petitioner cannot be granted and a direction
cannot be issued against the respondent - Corporation to appoint the
petitioner on the post of Junior Engineer. After the selection process was
wp6266.12.odt
initiated by the respondent - Corporation for appointment on the post of
Junior Engineer, a FIR was lodged against the petitioner for the offences
punishable under Sections 420, 409, 406 read with Section 34 of the
Penal Code and the petitioner was arrested on 18.5.2012 and was
released on bail on 21.5.2012. The said fact was brought to the
knowledge of the respondent - Corporation after the police verification
and the Corporation decided not to appoint the petitioner on the post of
Junior Engineer. Merely because the petitioner is discharged after a
period of nearly four years from the date of the issuance of the
advertisement, the petitioner cannot seek his appointment. The
judgments, reported in (2013) 11 SCC 67 and (2005) 1 M.L.J. 488 and
relied on by the learned Senior Counsel cannot be made applicable to the
facts of this case. In the said reported cases, the employees that were
working for quite some time, were involved in criminal proceedings and
no departmental enquiry was conducted against them. Hence, after the
acquittal - discharge of the employees in the criminal cases, it was held
that it was necessary for the employer to reinstate the employees. In the
instant case, the petitioner was not appointed to the post of Junior
Engineer at all. The petitioner seeks his appointment on the basis of the
inclusion of his name in the select list. The facts in the reported decisions
and the facts in the present case are distinguishable. The judgment
wp6266.12.odt
reported in (1996) 11 SCC 605 and relied on by the Counsel for the
Corporation could be applicable to the case in hand. It was held by the
Hon'ble Supreme Court in similar set of facts in the said judgment that the
view taken by the Authority of not appointing the candidate despite his
selection, on the basis of the police verification report, was justified. As
rightly submitted on behalf of the respondent - Corporation, merely
because the petitioner was selected, the petitioner would not have a right
to seek his appointment on the post of Junior Engineer. We do not find
that in this case the respondent - Corporation has acted arbitrarily. As
submitted on behalf of the respondent - Corporation, we find that the
action on the part of the respondent - Corporation in rejecting the
candidature of the petitioner is bona fide and is based on the police
verification report. The Corporation has relied on the Government
Resolution, dated 21.11.2007 after the police verification report was
secured.
Since the relief sought by the petitioner cannot be granted,
the writ petition is dismissed with no order as to costs. Rule stands
discharged.
JUDGE JUDGE
Wadkar
