Arun S/O. Harichandra Narnaware ... vs State Of Maha., Through ...
2017 Latest Caselaw 9439 Bom

                                                                  1                                      jg.wp.6178.15.odt


                              THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      NAGPUR BENCH : NAGPUR.

                                          WRIT PETITION NO. 6178 OF 2015

             (1) Arun S/o Harichandra Narnaware,
                   Aged about 32 years, Occ. : Nil, 
                   R/o Plot No. 10, Doye Layout, Geetanagar, 
                   Zingabai Takli, Nagpur-440030. 

             (2) Baba S/o Prahlad Dabrase, 
                   Aged about 37 years, Occ. : Nil, 
                   R/o Umtha, Tah. Narkhed, 
                   Distt. Nagpur-441301.                                                                    ... Petitioners

                          VERSUS

             (1) State of Maharashtra - Through 
                   President, District Selection Committee/
                   District Collector, Nagpur. 
             (2) Member, District Selection Committee/
                   Chief Executive Officer, Zilla Parishad, 
                   Nagpur.
             (3) District Health Officer,
                   Zilla Parishad, Nagpur. 
             (4) Shri Ashok Sudam Hiwrale,
Amended 
  as per
                   Health Worker, Sub-Centre : Dongar Mouda, 
Order dt.          Primary Health Centre, 
16-9-2016          Mandhal, Tah. : Kuhi, Distt. Nagpur. 

Amended      (5) Shri Shambhu Shanker Nawej,
  as per           Health Worker, Wadvihira Sub-Centre, 
Order dt. 
16-9-2016
                   in Primary Health Centre, 
                   Mendhala, Tah. : Narkhed, Distt. Nagpur.                              ... Respondents
             -------------------------------------------------------------------------------------------------
             Shri S. A. Kalbande, Advocate for the petitioners 
             Shri V. P. Gangane, Assistant Government Pleader for the respondent no. 1
             Smt. S. W. Deshpande, Advocate for the respondent nos. 2 and 3
             Shri Deoul Pathak, Advocate for the respondent nos. 4 and 5 
             -----------------------------------------------------------------------------------------------------------------------




             ::: Uploaded on - 12/12/2017                                            ::: Downloaded on - 13/12/2017 01:18:39 :::
                                       2                             jg.wp.6178.15.odt



                                        CORAM :  R. K. DESHPANDE AND
                                                       M. G. GIRATKAR, JJ.

DATE : 8-12-2017

ORAL JUDGMENT (Per : R. K. Deshpande, J.)

Rule made returnable forthwith. Heard by consent of the

learned counsels appearing for the parties.

2. This petition challenges the appointment of the respondent

nos. 4 and 5 made by an order dated 14-8-2015 on the post of Health

Worker (Male), against the post reserved for Scheduled Caste

candidates. The petitioners also claim appointment to the said posts

on the basis of their selection, which was communicated to them on

30-4-2015.

3. The fact in brief are as under :

On 22-8-2014, advertisement was issued by Zilla Parishad,

Nagpur inviting applications for several posts of Health Workers (Male)

including three posts which were reserved for Scheduled Caste

candidates, with which the present petition concerns. The petitioners as

3 jg.wp.6178.15.odt

well as the respondent nos. 4 and 5 applied for the said posts. Written

test was conducted on 30-11-2014 and subsequently, the oral interviews

also. On the basis of their performance, the letters of selection were

issued to the petitioners on 30-4-3015 and they were called to execute

an undertaking on stamp paper of Rs. 100/- incorporating therein, the

conditions of appointment which would be binding upon them. The

petitioners were asked to appear for medical examination by issuing

separate letter dated 4-2-2015. The police verification was done on

20-5-2015. The petitioners expected the letter of appointment,

however, the respondent - Zilla Parishad appointed the respondent

no. 4 Shri Ashok Sudam Hiwrale and respondent no. 5 Shri Shambhu

Shanker Nawej by separate orders dated 14-8-2015 against the posts

reserved for Scheduled Caste category. The petitioners were denied the

appointments.

4. This petition was filed on 21-9-2015 challenging the

appointment of respondent nos. 4 and 5 and seeking the appointments

to the posts in question. On 5-12-2015, notice for final disposal of

the matter was issued, making it returnable after two weeks. On

15-11-2016, this Court passed an order as under :

                                          4                              jg.wp.6178.15.odt


                          "Heard. 

For the reasons stated in the application, the application is allowed.

Notice is made returnable within four weeks. The substituted service under Order-V, Rule 20, Civil Procedure Code, by making "Chaspa" of the notice on the addresses of respondent nos. 4 and 5 is allowed. In addition, respondent no. 3 is directed to communicate the respondent nos. 4 and 5 about the notice issued by this Court."

5. The respondent nos. 4 and 5 were served, but they did

not appear before this Court when the matter was listed on 1-9-2017,

8-9-2017 and 22-9-2017. The matter came up for final disposal on

2-11-2017, when this Court passed an order as under :

"The claim of petitioners is that, in response to the advertisement, dt. 22.8.2014, they had appeared for written examination and interview. On 30.4.2015, they were selected for the posts of Health Workers. Police Verification was done on 20.5.2015. Their names appear in the list on page no.21 as the candidates selected from the Scheduled Caste category. Names of respondent nos. 4 and 5 do not appear in this select list. But, in spite of that, they have been appointed.

5 jg.wp.6178.15.odt

In the reply filed by respondent nos. 2 and 3, it is stated in paragraph no.4 that, in the list of 38 candidates, the name of respondent no.4 is at serial no.15 and he secured 100 out of 200 marks. The name of respondent no.5 is at serial no.18 and he secured 98 out of 200 marks. According to the respondents, petitioner no.2 is at serial no.25 and he secured 94 out of 200 marks; whereas petitioner no.1 is at serial no.30 and he secured 90 out of 200 marks. The stand of respondents is that more meritorious candidates are selected.

Prima facie, looking to the stand of respondent nos. 2 and 3, it seems that the selection is on the basis of merits. However, respondent nos. 2 and 3 seek time to place on record the entire select list of candidates from the Scheduled Caste category along with the marks secured by each of them.

To be put on 23.11.2017."

6. Thereafter on 23-11-2017, this Court passed an order as

under :

"Heard.

The application for amendment is allowed. Necessary amendment be carried out within a period of one week from today.

6 jg.wp.6178.15.odt

Writ Petition No. 6178 of 2015

It seems that in spite of service of notice, respondent nos. 4 and 5 have not approached this Court. As a result of which, hearing of the matter is prolonged.

In view of the above, the respondent no. 3 is directed to terminate the services of respondent nos. 4 and 5 forthwith and submit the report of compliance to this Court within a period of one week from today. The matter can be heard thereafter.

If the services are not terminated, the respondent no. 3 shall personally remain present before this Court on next date.

Stand over to 4-12-2017."

7. It is reported that in response to the aforesaid order, the

respondent nos. 4 and 5 are terminated from service. Hence, they put

their appearance through their counsel and filed reply in the matter.

On 6-12-2017, when the matter was listed before this Court, the

following order was passed :

"The learned counsel appearing for the respondent nos. 2 and 3, the selecting and appointing authorities, makes a statement that in terms of the recruitment rules dated

7 jg.wp.6178.15.odt

6-6-2014, the respondent nos. 4 and 5 were eligible for selection and appointment to the post and they were not selected and appointed because of the change in recruitment rules as per notification dated 2-6-2015. According to Smt. Deshpande, learned counsel, the respondents appointed candidates were eligible in terms of unamended rules of recruitment published on 6-6-2014 and since they were found meritorious than the petitioners, they were appointed to the post. According to her letters similar to those at Annexures 3 and 4 dated 30-4-2015 were issued to the respondents/ selected candidates also.

Put up this matter on 8-12-2017 so as to enable the respondent nos. 2 and 3 to file an affidavit stating all these facts on oath.

Steno copy of this order be supplied to the learned counsel appearing for the parties."

8. Shri Kalbande, learned counsel for the petitioners invited

our attention to the notification dated 2-6-2015 by which the

recruitment rules dated 6-6-2014 were amended to enhance the zone of

consideration for the post of Health Workers (male). He submits that

this was done after the petitioners were given the letters of selection on

30-4-2015 and because of widening of zone of consideration, the

8 jg.wp.6178.15.odt

respondent nos. 4 and 5 were found to be meritorious and hence were

appointed to the post. He has relied upon the decision of the Apex

Court in the case of Madan Mohan Sharma and another Vs. State of

Rajasthan and others reported in (2008) 3 SCC 724 for the

proposition that once the advertisement is issued on the basis of the

recruitment rules then prevailing, the effect would be that the selection

process would continue on the basis of the criteria which were laid

down in the said recruitment rules and it cannot be on the basis of the

criteria which has been made subsequently. Inviting our attention to

the stand of the respondent - Zilla Parishad, he submits that the

selection of the respondent nos. 4 and 5 was purely on the basis of

changed criteria adopted after the selection of the petitioners and,

therefore, as per the decision of the Apex Court, their appointments are

liable to be set aside. He further submits that the petitioners having

found eligible and meritorious in the list of eligible candidates were

required to be issued orders of appointment.

9. The District Health Office, Zilla Parishad, Nagpur who is

the respondent no. 3 has filed an affidavit for the respondent nos. 2 and

3, on 17-11-2017 stating in paragraph no. 3 as under :

                                          9                             jg.wp.6178.15.odt


                 3)       It   is   submitted   that   on   02/06/2015   Public   Health

Department, Mantralaya Mumbai issued a notification, thereby amending the recruitment rules dated 06/06/2014 regulating the recruitment to the post of Health Workers (Male) Group-C on the establishment of Directorate of Health Services under the Public Health Department, Govt. of Maharashtra. By this notification the age of the candidates who are about 33 years and has worked at least for 90 days for National Malaria Program, their age limit is relaxed upto 45 years. Thus, taking into the consideration to the notification dated 02/06/2015 revised list is prepared.

We find that the stand taken in paragraph no. 3 is in conformity with

the proceedings of selection annexed to the affidavit. It is apparent

from the proceedings of selection that revised select list of candidates

was prepared on 6-8-2015 on the basis of amended criteria vide

notification dated 2-6-2015 in which, the respondent nos. 4 and 5 were

found to be selected on the basis of their marks obtained and, therefore,

the orders of appointment were issued in their favour.

10. The respondent nos. 2 and 3 have filed additional affidavit

today which is sworn by District Health Officer, Zilla Parishad, Nagpur

stating in paragraph no. 4 that whatever stand taken in paragraph no. 3

10 jg.wp.6178.15.odt

of the earlier affidavit which is reproduced above, is totally incorrect

and for that purpose apology is expressed. It is the stand taken

now in the additional affidavit that letters similar to one issued to the

petitioners on 30-4-2015 about their selection, were also issued to the

respondent nos. 4 and 5. However, there is nothing placed on record to

substantiate it, except making reference to certain entries in the

outward register of Zilla Parishad.

11. The respondent nos. 4 and 5 have also filed affidavits

stating that they were eligible in terms of the unamended recruitment

rules and having obtained marks more than the petitioners in

written test and oral interviews, their selection was legal and proper.

Shri Deoul Pathak, the learned counsel representing the respondent

nos. 4 and 5 submits that the appointments of the respondent nos. 4

and 5 be protected as they have already rendered services from the year

2015, till the date of their termination as per the order passed by this

Court.

12. The first question is whether the respondent nos. 4 and 5

were eligible in terms of the unamended recruitment rules of 6-6-2014.

The eligibility criterion of age, was of not more than 33 years and it

11 jg.wp.6178.15.odt

was relaxable up to 45 years, if a person has worked as seasonal worker

for 90 days every year under the National Anti-Malaria Programme. It

is not the stand taken by the Zilla Parishad in any of the affidavits filed,

in spite of our specific direction on 6-12-2017 reproduced earlier, that

the respondent nos. 4 and 5 were eligible as seasonal workers in the

National Anti Malaria Program for a minimum period of 90 days in a

year. It is also not the stand by the Zilla Parishad that the petitioners

did not fulfill such a criteria prescribed in the recruitment rules dated

6-6-2014. What we find is that two fold changes were made by

notification dated 2-6-2015 altering the recruitment rules dated

6-6-2014 : one was relaxation in age from 33 years to 45 years and

second was working as seasonal worker for 90 days in "every year",

which widened the zone of consideration. As a result of the change in

recruitment rules brought into force on 2-6-2015, the selection

committee prepared a revised list of selected candidates on 6-8-2015, in

which the respondent nos. 4 and 5 were found to be more meritorious

and therefore, they were selected and appointed.

13. In our view, the decision of the Apex Court in the case of

Madan Mohan Sharma's case (cited supra) covers the controversy

12 jg.wp.6178.15.odt

involved in the present matter, wherein it is held that once the

advertisement is issued on the basis of the recruitment rules then

prevailing, the effect would be that the selection process would continue

on the basis of such criteria which were laid down in the said rules and

it cannot be on the basis of the criteria which has been made

subsequently, otherwise, it would amount to change in the rules of

game after the game is played.

14. In the facts of the present case, as we see, the entire

process of selection was completed up to the stage of petitioner

appearing for the medical test and police verification on 20-5-2015

as per the unamended recruitment rules dated 6-6-2014. It is thereafter

on 2-6-2015 that the change in recruitment rules widened the zone of

consideration and on the basis of it, fresh selection list was prepared on

6-8-2015. If the respondent nos. 4 and 5 were not even in the zone of

consideration being ineligible up to 2-6-2015, they could not have been

appointed on the basis of the higher marks obtained. It is, as if, the

rules are tailor-made for them. We cannot therefore, sustain the

appointments of the respondent nos. 4 and 5 made in this fashion,

which according to us is completely arbitrary.

13 jg.wp.6178.15.odt

15. We cannot entertain stand taken by the respondent nos. 4

and 5 that the petitioners were also not eligible in terms of the first

recruitment rules dated 6-6-2014 on the basis of which they were

selected. In our view, that it is for the Zilla Parishad to have taken such

a stand, which they have not taken in spite of granting several

opportunities, as it is apparent from the orders which we have passed

from time to time. We cannot entertain such a factual dispute at the

instance of respondent nos. 4 and 5. We are also unable to entertain

the argument of sympathy, advanced by the learned counsel appearing

for the respondent nos. 4 and 5, to protect their services for the reason

that the petition was immediately filed after the appointment of the

respondent nos. 4 and 5. The notice of final disposal was issued on 5-

12-2015. They failed to appear before this Court. As a result of which,

the order dated 15-11-2016 which is reproduced earlier was passed.

Thereafter also, the respondents neglected to appear before this Court in

spite of service of notice. This Court was, therefore, required to pass

peremptory order dated 23-11-2017 directing the termination of their

services, the compliance of which is reported to us. In this background,

the question of entertaining sympathy on the part of the respondent

nos. 4 and 5 does not at all arise. The conduct of the respondent nos. 4

14 jg.wp.6178.15.odt

and 5 is totally blemish and it is of avoiding adjudication in the

litigation pending in this Court. The office of Zilla Parishad is across the

road in front of the High Court. It can hardly be believed that they are

not served or they were not aware about the pendency of litigation in

this Court, particularly when on 15-11-2016, this Court directed the

respondent no. 3 employer to communicate the notice of this petition to

the respondent nos. 4 and 5.

16. In the result, the writ petition is allowed as under :-

(a) The appointments of the respondent nos. 4 and

5 made on 14-8-2015 to the posts of Health Workers (Male)

are hereby quashed and set aside.

(b) The respondent nos. 2 and 3 are directed to

appoint the petitioners on the post of Health Worker (Male)

with effect from 14-8-2015 within a period of four weeks

from today, failing which they shall have to pay costs of Rs.

15,000/- to each of the petitioners. The petitioners shall,

however, not be entitled to any monetary benefits till the

date of their appointment, as they have not worked from

15 jg.wp.6178.15.odt

14-8-2015, however, for all other purposes, their services

should be counted from 14-8-2015.

(c) All civil applications pending in this writ

petition stand disposed off.

17. Rule is made absolute in aforesaid terms with no order as

to costs.

                        JUDGE                                     JUDGE


wasnik