Bombay High Court
Balaji Bhimrao Tidke vs The State Of Mah And Anr on 20 December, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2352 OF 2007
Nagnath Devidasrao Padhye,
Age : 35 years, Occu. Service
as Lab Assistant,
Govt. Medical College, Nanded
R/o Vakratunda, N-D42, J-1, 2/5,
HUDCO, Nanded PETITIONER
VERSUS
1. The State of Maharashtra,
through the Secretary,
Medical Education & Drugs
Department, Mantralaya,
Mumbai
2. The Director,
Medical Education & Research,
St. Georges Hospital Compound,
Dental College Building,
Mumbai - 400 001
3. The Dean,
Govt. Medical College,
Nanded
4. The Secretary,
Regional Selection Board,
Aurangabad RESPONDENTS
AND
WRIT PETITION NO.129 OF 2010
Balaji s/o Bhimrao Tidke,
Age : 32 years, occu. Government
Service as Laboratory Assistant
with Government Medical College,
Nanded, R/o "Shivam Niwas",
Kaleshwar Nagar, Vishnupuri,
Nanded, Tq. And District Nanded PETITIONER
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VERSUS
1. The State of Maharashtra,
through the Secretary,
Department of Health,
M.S., Mantralaya,
Mumbai
2. The Dean,
Government Medical College,
Nanded RESPONDENTS
----
Mr. Ajay S. Deshpande, Advocate for the petitioner
in Writ Petition No. 2352/2007
Mr. A.S. Deshmukh, Advocate holding for Mr. R.S.
Deshmukh, Advocate for the petitioner in
Writ Petition No. 129/2010
Mr. S.N. Morampalle, A.G.P. for the respondents
in both Writ Petitions
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 21st NOVEMBER, 2017
JUDGMENT PRONOUNCED ON : 20th DECEMBER, 2017
COMMON JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Common questions of law and facts are involved
in both of these writ petitions. Therefore, they are
being decided by this common judgment.
2. For the sake of convenience, the petitioners
are hereinafter referred to by their first names, i.e.
Nagnath and Balaji, respectively.
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3. The facts, which are not in dispute, are that
Nagnath and Balaji were holding the certificates issued
by the District Rehabilitation Officer, Nanded,
declaring that they are project affected persons and are
entitled to get benefit of the scheme for rehabilitation
of the project affected persons in the form of
concession in getting the Government service. Nagnath
and Balaji applied for being appointed to the post of
Laboratory Assistant from the quota meant for project
affected persons on 16th April, 1998 and July, 1997
respectively.
4. Balaji was appointed to the post of Laboratory
Assistant for a period of 29 days as per the order dated
30th august, 1997. He was again appointed for the same
period by another order dated 2nd September, 1998.
Apprehending that his services would be terminated, he
filed Original Application No.529 of 2008 before the
Maharashtra Administrative Tribunal, Mumbai, Bench at
Aurangabad ("Tribunal", for short), seeking
regularisation of his services, on 25th September, 1998.
Interim relief was granted in his favour on 29 th
September, 1998, protecting his services during pendency
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of the Original Application before the Tribunal.
Accordingly, he continued to be in service. However,
after hearing the matter on merits, the Tribunal
dismissed the said Original Application on 9 th October,
2009.
5. The application filed by Nagnath for
appointment to the post of Laboratory Assistant was not
considered for a long period. Therefore, he filed
Original Application No. 777/1999 before the Tribunal,
seeking directions to the Appointing Authority i.e. the
Dean, Government Medical College, Nanded for getting
himself appointed to the post of Laboratory Assistant.
The Tribunal passed an interim order in favour of
Nagnath on 1st November, 1999. In compliance with that
order, the Dean, Government Medical Collge, Nanded
issued appointment order in favour of Nagnath on 12 th
November, 1999 subject to final decision of the Original
Application. The said Original Application also came to
be dismissed by the Tribunal after hearing the parties
on 28th February, 2007.
6. The Dean, Government Medical College, Nanded
had opposed both of the Original Applications mainly on
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the ground that there were only 20 sanctioned posts of
Laboratory Assistants, while the quota of 5% meant for
the project affected persons was already exhausted and
therefore, the above named petitioners were not liable
to be appointed or confirmed in the service under the
scheme of rehabilitation of the project affected
persons.
7. The learned Members of the Tribunal dismissed
the Original Applications on the basis of the judgments
in the cases of Secretary, State of Karnataka and others
Vs. Umadevi and others 2006 AIR SCW 1991 and Rajendra
pandurang Pagare and another Vs. State of Maharashtra
and others 2009(4) Mh.L.J. 961 respectively, holding
that the petitioners have no right to seek appointment
and confirmation in the service without following due
procedure meant for recruitment even for the post
reserved for the project affected persons.
8. The learned counsel for the petitioners submit
that the reason shown by the Dean for not appointing the
petitioners to the posts of Laboratory Assistants that
the quota meant for the project affected persons was
already exhausted, would not survive since after
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appointing these petitioners, the Dean has appointed six
more persons who were project affected. It is further
their contention that the judgment in the case of
Umadevi (supra) cannot be applied mechanically as held
in the case of U.P. State Electricity Board Vs. Pooran
Chandra Pandey and others 2007 AIR SCW 6904. According
to them, in the present cases, the petitioners were not
seeking regularisation in their services, but they were
seeking appointments to the posts of Laboratory
Assistants, to which they had a right to be appointed
(under the policy decision of the State Government)
since they were the project affected persons.
Therefore, the case of Umadevi would not be applicable
in the present cases.
9. It is not disputed by the petitioners that
there were only 20 sanctioned posts of Laboratory
Assistants in the Government Medical College at Nanded.
If that be so, only one post would be available for the
project affected persons. The petitioner Nagnath has
produced the seniority list of the employees appointed
to the posts of Laboratory Assistants in the Government
Medical College at Nanded. One Maqdum Iftekar Malik
(serial no.132 in the seniority list) has been appointed
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as the Laboratory Assistant with effect from 1st July,
1997 from the category of project affected persons. His
date of retirement is 30th September, 2036. The names of
the petitioners i.e. Nagnath and Balaji are at serial
nos. 135 and 142 respectively of the seniority list. It
is the specific plea of the Dean of the Government
Medical College that the quota meant for project
affected persons was already exhausted and therefore,
both the petitioners could not be appointed to the
posts of Laboratory Assistants under the said quota.
This plea is fortified by the seniority list of the
candidates produced by petitioner Nagnath, who were
expecting appointments under the quota meant for project
affected persons.
10. Here, reference may be made to the circular
dated 3rd January, 1997, whereunder the appointments of
the project affected persons were excluded from the
purview of the Regional Selection board. It was
clarified in paragraph No.3 of the said circular that
the project affected persons having priority for being
appointed to 5% of the posts could directly file
applications to the Appointing Authority. It was
further clarified that such persons also would be
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entitled to apply for the posts which were not reserved
for project affected persons by sending their
applications to the Selection Board pursuant to the
advertisement. However, they would not be entitled to
have priority in appointments as project affected
persons in the process of selection conducted by the
Selection Board. In that selection process, the
candidates from the category of project affected persons
would be required to compete for being selected with
other candidates. From this circular, it is clear that
it is only when the appointment is sought to be made
from the quota of 5% meant for the project affected
persons that a candidate falling under the category of
project affected persons could apply directly to the
Appointing Authority without subjecting himself to the
regular selection process conducted by the Selection
board pursuant to an advertisement. However, if such
candidate claims appointment to the post in excess to
the quota of 5%, he would be required to undergo the
regular selection process conducted by the Selection
Board and compete with other candidates.
11. In the present case, as stated above, the quota
meant for project affected persons was already exhausted
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since the candidate at serial No.132 namely Maqdum
Iftekar Malik was appointed from the category of project
affected persons on 1st July, 1997. His date of
retirement is 30th September, 2036. If that be so, both
the petitioners were not entitled to seek appointment to
the posts of Laboratory Assistants from the quota meant
for the project affected persons. In view of the
circular dated 3rd January, 1997, they were not entitled
to claim appointment to the posts of Laboratory
Assistant by directly making applications to the
Appointing Authority and the Appointing Authority also
was not legally authorised to appoint them by
entertaining such applications.
12. Both the petitioners, though were not entitled
to be appointed from the category of project affected
persons, had secured appointments pursuant to the
interim reliefs granted by the Tribunal. It cannot be
said that the petitioners were appointed to the posts of
Laboratory Assistants by following due procedure that
was prescribed in the circular dated 3rd January, 1997.
13. The facts of the case of U.P. State
Electricity Board (supra), cited on behalf of the
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petitioners, are quite different than that of the
present petitions. In that case, 34 petitioners, who
were daily wage employees of the Cooperative Electric
Supply Society, had prayed for regularization in the
service in the U.P. State Electricity Board since the
said Society had been taken over by the Electricity
Board on 3rd April, 1997. While taking over the Society,
it was decided that the daily wage employees of the
Society, who were being taken over by the Board, would
start working in the Board "in the same manner and
position". Accordingly, the petitioners/employees were
absorbed in the services of the Board. Earlier, the
Board had taken a decision to regularize services of its
employees working on daily wage basis prior to 4th May,
1990 on the then existing vacant posts after holding
examination for selection. The petitioners were denied
benefit of the said decision. In that background, it
was held that since the petitioners were appointed in
the Society prior to 4th May, 1990, they cannot be denied
the benefit of the decision of the Board permitting
regularization. In view of these distinguishing facts,
it was held that the decision in the case of Umadevi
(supra) would not be applicable to the facts of the said
case. Consequently the said judgment would be of no help
11 wp2352-2007-129-2010
to the petitioners either to seek appointment or
regularization in service, as claimed.
14. When there was no post available for being
filled up from the candidates from the category of
project affected persons, the Dean of Government Medical
College, Nanded had no authority to appoint the
petitioners by entertaining their applications.
Therefore, the appointments of the petitioners, which
were made without following the due procedure, would be
covered by the judgment in the case of Umadevi (supra).
15. The learned counsel for the petitioners pointed
out to paragraph No.13 of the judgment in the case of
Rajendra Pandurang Pagare and another (supra), wherein
it is observed that if the appointing authority has
initiated procedure for appointment of project affected
persons, prior to 13th September, 2000, the procedure
prescribed under Circular dated 13th September, 2000
would not be applicable. In our view, these observations
would not come to the assistance of the petitioners in
seeking appointments or regularization of their
appointments to the posts of Laboratory Assistant. As
stated above, when there was no post available for being
12 wp2352-2007-129-2010
filled up from the category of project affected persons,
in view of the Circular dated 3 rd January, 1997 the
appointing authority could not have given appointments
to the petitioners by directly entertaining their
applications and the petitioners were under an
obligation to approach the Selection Board pursuant to
the advertisement and compete with other candidates
applying for the said posts. Thus, the petitioners were
not entitled to get appointed to the posts of Laboratory
Assistants on the basis of their applications directly
sent to the appointing authority.
16. The contention of the learned counsel for the
petitioners that some other persons from the category of
project affected persons have been appointed by the
Dean, even after their appointments, would not be of any
help to the petitioners to seek appointments or
regularization in service. Only because the Dean of the
Government Medical College appointed some other persons
from the category of project affected persons without
following due procedure, the petitioners cannot claim
parity seeking benefit of such irregular/illegal act.
When the petitioners seek the assistance of the Court,
it is necessary for them to establish their legal right
13 wp2352-2007-129-2010
to get appointed to the posts of Laboratory Assistants.
They cannot get appointed to the said posts illegally by
pointing out to some other illegal appointments.
17. As stated above, both the petitioners were
appointed by the Dean, Government Medical College,
Nanded pursuant to the interim orders passed by the
Tribunal. It is well settled that the Tribunals or
Courts cannot direct the employer to fill up the posts
ignoring the prescribed procedure for selection and
appointment. The Tribunal, after considering the cases
of the petitioners on merits, rightly dismissed the
Original Applications. We do not find any reason to
interfere with the decisions rendered by the Tribunal in
the Original Applications filed by the petitioners. The
Writ Petitions are liable to be dismissed. The interim
relief granted in favour of petitioner Nagnath is liable
to be vacated. In the result, we pass the following
order:-
O R D E R
(A) Writ Petition Nos. 2352 of 2007 and 129 of 2010
are dismissed.
14 wp2352-2007-129-2010
(B) The interim relief granted in favour of the
petitioner in Writ Petition No. 2352 of 2007 is vacated.
(C) No costs.
(D) Rule stands discharged.
18. At this stage the learned counsel for the
petitioner in Writ Petition No.2352 of 2007 prays for
continuation of the interim relief granted in his favour
protecting his service for a period of eight weeks.
Interim relief is granted for a period of eight weeks
from today as sought.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
npj/wp2352-2007-129-2010
