Bombay High Court
Rajendra Pandurang Ide vs The State Of Maharashtra And ... on 16 November, 2016
Bench: S.V. Gangapurwala
W.P. 11193/2015
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11193/2015
Rajendra Pandurang Ide,
Age:40 years, Occu: Agriculture,
R/o. At: Mutkhel, Tal.Akole,
Dist.Ahmednagar. ...Petitioner
Versus
1] The State of Maharashtra,
Through the Secretary,
Home Department, Mantralaya,
Mumbai.
2] Sub-Divisional Officer, Sangamner,
At Post & Tal : Sangamner,
Dist.Ahmednagar.
3] Devidas Jayram Ide,
Age:30 years, Occu: Agriculture,
R/o At:Mutkhel, Tal.Akole,
Dist. Ahmednagar.
...Respondents
.....
Shri S.T.Shelke, Advocate for the Petitioner.
Shri M.B.Bharaswadkar, AGP for Respondent Nos.1 & 2.
Shri V.Y.Bhide, Advocate for Respondent No.3.
.....
CORAM: S.V. GANGAPURWALA &
K.L. WADANE, JJ.
JUDGMENT RESERVED ON: 24.10.2016
JUDGMENT PRONOUNCED ON 16.11.2016
::: Uploaded on - 16/11/2016 ::: Downloaded on - 17/11/2016 00:59:48 :::
W.P. 11193/2015
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JUDGMENT (Per S.V. Gangapurwala, J.) :
1] Rule. Rule made returnable forthwith and with
the consent of learned counsel for the parties, the
petition is taken up for final disposal at this stage.
2] The applications were invited for the post of
Police Patil of village Mutkhel Tq.Akole. Pursuant to
the selection process, the petitioner came to be
selected. The respondent no.3 objected to the
petitioner's selection. The said objection was disposed
of. On 28.8.2014, the petitioner was issued appointment
order of Police Patil. The respondent no.3 filed
Original Application No.655/2014 challenging the
selection and appointment of the petitioner to the post
of Police Patil. The Tribunal allowed the Original
Application. Aggrieved thereby, the present petition is
filed.
3] Mr.Shelke, learned counsel for the petitioner
strenuously contends that the original application is
allowed on the ground that the petitioner had allegiance
with the political party. According to the learned
counsel, the petitioner had categorically taken a stand
that he is not a member of any political party and he
W.P. 11193/2015
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would resign from the post of Sarpanch before his
appointment as a Police Patil. The said stand of the
present petitioner was accepted by the Sub Divisional
Officer and thereafter only appointment order was issued.
The respondent no.3 in fact was the opponent of the
petitioner in the grampanchayat elections. As he did not
succeed, the respondent no.3 had opposed the appointment
of the petitioner as Police Patil.
4] The learned counsel further submits that the
petitioner is Adiwasi and studied up to 12th Standard.
The petitioner had got the letter from the President of
the Congress (I) party of Akole Taluka under mis-
conception that the Congress (I) would pass a resolution
stating therein that the petitioner has resigned. The
petitioner was never a member of the Congress (I) party.
Even the President of the Akole Congress (I) party issued
a certificate stating therein that after 2010, there is
no registration of members till 2013-14. According to
the learned counsel, the affidavit filed before the
Tribunal by the petitioner is against the record and the
same is due to ignorance and the ill-advice. The learned
counsel submits that under any circumstances, the
W.P. 11193/2015
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petitioner was not a member of political party on the
date of his appointment i.e. on 28.8.2014. The learned
counsel further submits that even the condition no.5 of
the advertisement is silent regarding the cut-off date
for not being a member of the political party. The said
condition no.5 will have to be read in a manner that as
on the date of issuance of the appointment order of
Police Patil, the person should not be a member of
political party. These aspects have not been considered
by the Tribunal in its correct perspective while allowing
the original application.
5] According to the learned counsel, even the Rules
governing the appointment of Police Patil nowhere
contemplate that on the date the application is submitted
pursuant to the advertisement, the petitioner should not
be a member of a political party. The learned counsel
relies on the judgment of Division Bench of this Court
delivered in Writ Petition No.2623/1995 dated 9.4.2012 at
Nagpur so also the judgment of the Division Bench of
this Court in a case of IVO Almeida Coutinho & others v.
P.M. Naik & others reported in 2012 (3) Mh.L.J., 627.
The learned counsel submits that defective clause in the
W.P. 11193/2015
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advertisement cannot override the rules. The learned
counsel relies on the judgment of the learned Single
Judge of this Court in a case of Chandrakant Gajananrao
Pise & others v. Collector, Nagpur & others reported in
2010(1) Mh.L.J., 268.
6] Mr.Bhide, learned counsel for the respondent
no.3 submits that the parties had applied for the post of
Police Patil pursuant to an advertisement. The
advertisement specifically states that a person applying
for the post of Police Patil should not be a member of
political party. The said terms of advertisement are now
not open for challenge. On the date of advertisement and
on the date the application was filed by the petitioner,
the petitioner was a member of a political party. The
same is clear from the affidavit filed by the present
petitioner before the Tribunal and also the receipt of
payment of membership fee by Congress (I) party. The
learned counsel submits that on 6.3.2013, the political
party certified that the petitioner is not a member from
2.1.2013 as his resignation is accepted. This itself
shows that the petitioner was a member of the political
party on the date of application so also on the date of
W.P. 11193/2015
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advertisement. According to the learned counsel, on
18.12.2011 also, the receipt of accepting membership fee
from the petitioner is issued by the political party,
which shows that as on the said date, he was a member of
the political party. The last date for filing
application was 9.11.2011 and the date of publication of
proclamation was 17.10.2011. The learned counsel submits
that if after the last date of filing the application, if
any act is done, the same is not relevant. The learned
counsel relies on the judgment of the Apex Court in a
case of Dr.M.V. Nair v. Union of India & others reported
in 1993 AIR SCW 1412. The learned counsel further
submits that in absence of fixation of any cut-off date
specified in the advertisement or in the Rules, the last
date of filing the application is to be considered as a
cut-off date. The learned counsel, to buttress his
submissions, relies on the judgment of the Apex Court in
a case of Ashok Kumar Sonkar v. Union of India & others
reported in (2007) 4 SCC 54. The learned counsel submits
that the Sub Divisional Officer has no power to relax the
conditions laid down in the advertisement. The
conditions of the advertisement were required to be
W.P. 11193/2015
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scrupulously adhered to. The learned counsel relies on
the judgment of the Apex Court in a case of Bedanga
Talukdar v. Saifudullah Khan & others reported in AIR
2012 Supreme Court 1803.
7] We have also heard the learned AGP for the
State.
8] The advertisement inviting the applications for
the post of Police Patil is placed on record. The same
is in vernacular language. Relevant clause no.5 reads as
under:-
"¼5½ vtZnkj gk dks.kR;kgh jktdh; i{kkpk @ la?kVukapk
lnL; ulkok-"
The said condition specifically stipulates that the
applicant shall not be a member of any political party /
association.
9] Rule 1(3) of the Maharashtra Civil Services
(Conduct) Rules, 1979 categorically lays down that Rules
2,3,5,6,11,15,29 and 30 of the said Rules, 1979, apply
to the persons appointed as Police Patil under the
Maharashtra Village Police Act, 1967. In the instant
matter, Rule 5 of the Rules, 1979, is relevant. The same
reads as under:-
W.P. 11193/2015
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"5. Taking part in politics and elections -
(1) No Government servant shall be a member of
or be otherwise associated with, any political
party or any organization which takes part in
politics,nor shall he take part in or subscribe
in aid of, or assist in any other manner, any
political movement or activity.
(2) It shall be the duty of every Government
Servant to endeavour to prevent any member of
his family from taking part in, subscribing in
aid of, or assisting in any other manner any
movement or activity which is or which tends
directly or indirectly to be, subversive of any
Government of India as by law established, and
where a Government servant is unable to prevent
a member of his family from taking part in
subscribing in aid of, or assisting in any other
manner, any such movement or activity, he shall
make a report to that effect to the Government.
(3) Whether any party is a political party, or
whether any organization takes part in politics
or whether any movement or activity falls within
the scope of this rule, the decision of the
Government thereon shall be final.
(4) No Government servant shall canvass or
otherwise interfere with or use his influence in
connection with, or take part in an election to
any legislature or local authority hereinafter
W.P. 11193/2015
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referred to as "the election" :
Provided that, a Government servant qualified
to vote at such election may exercise his right
to vote, and where he does so, he shall give no
indication of the manner in which he proposes to
vote or has voted.
Explanation -
(1) Where a Government servant assist in the
conduct of any election in due performance of
a duty forced on him by or under any law for
the time being in force or by any order of
the Government, he shall not be deemed to
have contravened the provisions of this rule.
(2) The display by a Government servant on
his person, vehicle or residence of any
electoral symbol shall amount to using his
influence in connection with the election and
his proposing or seconding the nomination of
a candidate at the election shall amount to
taking part in the election within the
meaning of this rule, and accordingly, the
Government servant shall, in any such
eventualities, be deemed to have contravened
the provisions of this rule."
10] The moot question involved in the present matter
is whether the present petitioner was eligible to apply
pursuant to the advertisement and could have been
appointed as a Police Patil ?
W.P. 11193/2015
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11] From the available material on record, it is
manifest that the present petitioner was a member of
grampanchayat of village Mutkhel from the year 2008. The
petitioner was also elected as Sarpanch of the said
grampanchayat. One of the essential clauses in the
advertisement inviting applications for the post of
Police Patil is that the applicant shall not be a member
of any political party / association. The advertisement
did not lay down the cut-off date i.e. till which date
the person should not be a member of a political party.
In absence of any cut-off date being prescribed, the last
date for filing applications has to be considered as a
cut-off date. A useful reference can be had to the
judgment of the Apex Court in the case of Ashok Kumar
Sonkar, referred to supra. The terms of the
advertisement are not assailed. The petitioner has
participated in the selection process pursuant to the
advertisement and its terms. The selection procedure
stipulated in the advertisement has to be scrupulously
followed. The advertisement also does not give power to
the authority to relax any condition. As the petitioner
has participated in the selection process, he is bound by
W.P. 11193/2015
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the stipulations and the conditions laid down in the
advertisement. The petitioner now cannot turn around and
contend that the terms in the advertisement are not in
consonance with the Rules.
12] It is clear from the affidavit filed by the
present petitioner that the petitioner was a Sarpanch and
he has resigned from the post of Sarpanch in the year
2013. The petitioner pursuant to the advertisement had
filed an application for the post of Police Patil. The
last date for applying as per advertisement was 9.11.2011
and the date of publication of advertisement was
17.10.2011. On the said date, the petitioner was the
Sarpanch of the grampanchayat and was also a member of a
political party. The petitioner even as per his own
contention before the Sub Divisional Officer, had
resigned as a member of a political party on 2.1.2013
i.e. much after the last date of filing of application.
The Sub Divisional Officer had given him 15 days time to
resign as a member. In fact, the Sub Divisional Officer
did not have any authority to do so nor could have sat
over the stipulation in the advertisement. This shows
that the petitioner at the relevant time was a member of
W.P. 11193/2015
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a political party. The terms of advertisement were never
assailed. The parties are bound by the stipulations and
the covenants in the advertisement. The petitioner still
continued as a member of the grampanchayat though he
resigned as a Sarpanch of the grampanchayat. Considering
the terms of the advertisement, it would be irrelevant as
to whether the petitioner was a member of a political
party as on the date of issuance of appointment order.
13] The Police Patil is a civil post. The policy of
law is to keep the Government servant aloof from
politics. The nature of the functions and the duties of
the Police Patil as envisaged in Section 6 of the
Maharashtra Village Police Act, 1967, are such that the
Police Patil has to be impartial and cannot show any
partisan attitude to the members of a particular group.
Section 6 of the Maharashtra Village Police Act, 1967,
delineates the duties of the Police Patil, which reads as
under:-
"Section 6 - Duties of Police Patil:
Subject to the orders of the District
Magistrate, the Police Patil shall, -(i) act
under the orders of any other Executive
W.P. 11193/2015
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Magistrate within whose local jurisdiction his
village is situated;
(ii) furnish such returns and information as may
be called for by such Executive Magistrate;
(iii) constantly keep such Executive Magistrate
informed as to the state of crime and all
matters connected with the village police and
the health and general condition of the
community in his village;
(iv) afford every assistance in his power to all
Police Officers when called upon by them in the
performance of their duty;
(v) promptly obey and execute all orders and
warrants issued to him by a Magistrate or Police
Officer;
(vi) collect and communicate to the Station
Officer intelligence affecting the public peace;
(vii) prevent within the limits of his village
the commission of offences and public nuisances
and detect and bring offenders therein to
justice;
(viii) perform such other duties as are
W.P. 11193/2015
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specified under other provisions of this Act,
and as the State Government may, from time to
time, by general or special order specify in
this behalf."
14] Perusal of the aforesaid nature of duties, it
transpires that the Police Patil is entrusted with
important duties so as to ensure prevention within the
limits of his village the commission of offences and
public nuisances and to detect and bring offenders
therein to justice. Even the Sub Divisional Officer had
given 15 days time to the petitioner for giving
resignation of his post of Sarpanch and as the member of
political party and pursuant to the same, the petitioner
submitted his resignation as a member of a political
party i.e. Bhartiya Rashtriya Congress. The said order
of the Sub Divisional Officer is dated 22.2.2013 i.e.
much after the last date of filing of applications and
the same is after the culmination of the selection
process. The condition no.14 of the advertisement relied
upon by the petitioner is also not of any avail. The
said condition no.14 does not bestow any powers on the
Sub Divisional Officer to relax and change the basic
W.P. 11193/2015
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condition in the advertisement. It only states that
appointing authority will have every right in respect of
appointment. The same does not specifically speak about
relaxing the condition with regard to the eligibility for
appointment as detailed in the advertisement.
15] The contention of the petitioner that the
advertisement could not have been against the Rules
cannot be accepted. It would be too late in the day for
the petitioner to contend that the Maharashtra Village
Police Patil Recruitment (Pay, Allowances and Other
Conditions of Service) Order 1968, do not require a
person applying for the post of Police Patil from being a
member of a political party and the clause in the
advertisement being contrary to the Rules. The
petitioner had pursuant to the aid advertisement filled
in the application, participated in the selection
process, knowing fully well the terms and conditions of
the advertisement. More over, the said condition in the
advertisement cannot be said to be alien to the Rules.
As such the reliance placed by the learned counsel for
the petitioner in the case of Chandrakant Gajananrao
Pise, referred to supra, may not be of any assistance to
W.P. 11193/2015
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the petitioner.
16] The stipulations and the covenants in the
advertisement with regard to the eligibility of the
person to apply is unambiguous and does not admit of any
other interpretation. The person on the date of filing
his application could not have been a member of any
political party or association. It is no gain saying on
the part of the petitioner that on the date of
appointment, the petitioner has resigned as a member of
political party. The affiliation of the petitioner with
the political party on the last date of filing
application and even during the continuance of the
selection process is clear. The Tribunal has not
committed any error in setting aside the appointment of
the petitioner on the ground that on the date of
submission of the application for the post of Police
Patil, the petitioner was associated with a political
party and was a member of political party. The affidavit
filed by the petitioner in support of his contention
itself disproves the case of the petitioner of not being
a member of political party. The said affidavit
unequivocally states that the petitioner had resigned as
W.P. 11193/2015
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a member of Bhartiya Rashtriya Congress on 5.3.2013.
17] In view of the aforesaid reasons, the writ
petition is dismissed. Rule is discharged, however, with
no order as to costs.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)
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