Rashtriya Vaidyak Prasarak ... vs Digambar Krishnarao Deshmukh And ...
2017 Latest Caselaw 4103 Bom

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

                     WRIT PETITION NO.5931 OF 2014



 1. Rashtriya Vaidyak Prasarak Mandal,
    Through its President Dr Vinayak Ramrao
    Deshmukh, R.T.A. M. Kedia Plots, Akola
    Tq. Dist. Akola

 2. Rashtriya Vaidyak Prasarak Mandal
    Through its Secretary, Shri Arun Govind
    Damle, Aged about 64 years,
    R.T.A. M. Kedia Plots, Akola
    Tq. Dist. Akola                                         ..    PETITIONERS


                               .. VERSUS ..


 1. Digambar Krishnarao Deshmukh
    Aged about 59 years, Occ. Service,
    R/o Chhaya Hospital, Dabki Road,
    Akola, Tq. Dist. Akola

 2. Dr Anil Balwant Ketkar,
    Aged about 67 years,
    Occ. Medical Practitioner,
    R/o Gaurinandan, Kela Plots,
    Jatharpeth, Akola, Tq. Dist. Akola

 3. Vice Chancellor,
    Maharashtra University of Health Sciences,
    Dindori Road, Nasik, Dist. Nasik

 4. Director of Ayurved,
    Dr Thadani Road, 3rd floor,
    Khanna Construction House,
    Worli, Mumbai 18

 5. State of Maharashtra
    Through Collector, Akola,
    Dist. Akola




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 6. Dr Kishor s/o Moreshwar Pimparkar
    Aged about 54 years, Occ. Service,
    R/o S.B.I. Colony No.1.
    Jatharpeth, Akola, Tq. Dist. Akola

 7. Dr Omprakash Walmikrao Talokar,
    Aged about 62 years, Occ. Retired,
    R/o Ranpise Nagar, Akola, Dist. Akola ..                  RESPONDENTS


                                       WITH

                     WRIT PETITION NO.5932 OF 2014


 Dr Kishor s/o Moreshwar Pimparkar
 Aged about 54 years, Occ. Service,
 R/o S.B.I. Colony No.1.
 Jatharpeth, Akola, Tq. Dist. Akola                          ..     PETITIONER


                               .. VERSUS ..

 1. Digambar Krishnarao Deshmukh
    Aged about 59 years, Occ. Service,
    R/o Chhaya Hospital, Dabki Road,
    Akola, Tq. Dist. Akola

 2. Dr Anil Balwant Ketkar,
    Aged about 67 years,
    Occ. Medical Practitioner,
    R/o Gaurinandan, Kela Plots,
    Jatharpeth, Akola, Tq. Dist. Akola

 3. Rashtriya Vaidyak Prasarak Mandal,
    Through its President Dr Vinayak Ramrao
    Deshmukh, R.T.A. M. Kedia Plots, Akola
    Tq. Dist. Akola

 4. Rashtriya Vaidyak Prasarak Mandal
    Through its Secretary, Shri Arun Govind
    Damle, Aged about 64 years,
    R.T.A. M. Kedia Plots, Akola
    Tq. Dist. Akola

 5. Vice Chancellor,
    Maharashtra University of Health Sciences,




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      Dindori Road, Nasik, Dist. Nasik

 6. Director of Ayurved,
    Dr Thadani Road, 3rd floor,
    Khanna Construction House,
    Worli, Mumbai 18

 7. State of Maharashtra
    Through Collector, Akola,
    Dist. Akola

 8. Dr Omprakash Walmikrao Talokar,
    Aged about 62 years, Occ. Retired,
    R/o Ranpise Nagar, Akola, Dist. Akola ..                  RESPONDENTS


 Shri A. R. Deshpande, Advocate for petitioners in W.P.No.5931/14
 and for respondent Nos.3 and 4 in W.P.No.5932/14
 Shri A. M.Ghare, Advocate for petitioner in W.P.No.5932/14.
 Shri M. G.Sarda, Advocate for respondent No.1
 Shri Abhijit Deshpande, Advocate for respondent No.3 in
 W.P.No.5931/14.
 Shri Amit Balpande, AGP for respondent Nos.4 and 5 in W.P.
 No.5931/14 and for respondent Nos.6 and 7 in W.P.No.5932/14.
 Respondent Nos.2, 5 and 8 served.

                                CORAM : KUM. INDIRA JAIN, J.

DATED : JULY 06, 2017.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard

finally with the consent of learned counsel for the parties.

Both the writ petitions take an exception to the

order dated 18/10/2014 passed by the learned 3 rd Joint Civil

Judge (S.D.) Akola in Regular Civil Suit No.366/2002 thereby

allowing an application for amendment (Exhibit-83) filed by

plaintiff/respondent No.1.

2. The facts giving rise to the petitions may be stated

in brief as under :

Respondent No.1 filed R.C.S. No.366/2002 for

permanent injunction with the following prayers :

" This Hon'ble court may kindly be pleased to pass a decree against the defendant restraining the defendants from appointing any employee for the College of the trust or for the trust in any mode or manner, particularly on the basis of interviews scheduled on 29/06/2002.

The defendant no.4 and 5 be restrained from giving any approval to the candidates who may be selected in the interview dt.29/06/2002.

It be declared that the meeting held on 13/02/2002 was not a legally held meeting of the trust and the resolution passed in the said meeting are not binding on the trust for the reasons mentioned in the plaint.

It be declared that there is no legally constituted selection committee holding selection on 29/06/2002.

Cost of the suit may kindly be awarded in favour of plaintiff along with any other relief which this Hon'ble court deems fit and proper. "

3. Suit was instituted on 29/6/2002. During pendency

of suit on 18/10/2014, an application for amendment

(Exhibit-83) was filed by plaintiff. The following amendment

came to be proposed in paragraphs 14-A to 14-F.

" 14-A :- That the plaintiff was working as Head of Department of Swasthha Vrutta Department. He has been appointed as Professor in Swasthha Vrutta Department 12/07/2006 by the Selection Committee appointed by the University. He has joined his duties as Professor on dt.13/07/2006.

14-B :- That the Plaintiff has undergone a By-pass surgery on dt.27/10/2009. After recovery he resumed his duty on dt.04/01/2010. That on 05/01/2010, to the utter surprise of the Plaintiff, he received a letter dt.07/11/2009 stating defendant no.7 is appointed as Professor in Swasthha Vrutta department. This appointment of the defendant no.7 in the Swasthha Vrutta Department is absolutely illegal.

14-C :- That the defendant no.7 has filed an application Ex.33 dt.05/12/2002 claiming that in the interviews dt.29/06/2002,the defendant no.7 was selected as Lecturers in the department of Samhita and Defendant no.8 is selected on the post of Reader in the department of Ras Shastra. It is also claimed that as per selection they were appointed on respective posts and that they have joined their duties on their respective posts. They filed appointment letters dt.29/06/2002 and jointing letter dt.29/06/2002. That this Hon'ble Court while passing order below ex.33 on 13/08/2003 observed in paragraph no.4 - "Considering the facts urged by the intervenors regarding their lawful appointment on merits by the Committee having the lawful authority to make such appointment and as the Plaintiff has instituted the present suit for injunction against such appointment and approval for the appointments of the applications for the up-graded posts. Their appointment is the subject matter of the present suit and they are the persons who will be directly affected by the decision of the suit or any interim orders which may be passed in the suit. Therefore in my opinion they are necessary parties to the suit and are entitled to be added as defendants in this suit under Order 1 Rule 10 of C.P.C." thus ultimately, they were jointed as defendant nos.7 and 8. Thereafter, defendant nos.7 and 8 filed their detailed written statement with

affidavit of defendant no.7 on 20/01/2004 and again it is claimed and contended that they were appointed in the department of Samhita as Lecturer and Ras Shastra as Reader, respectively.

14-D:- That this Hon'ble court decided Exh.5 on 03/02/2007 and it is observed in para no.21 of the order that " Similarly in the letter dated 20/10/2003 (Exh.53/2) it is reported that the selection committee has selected the candidate in the meeting held on 29/06/2002. but this report can be read in respect of post of Sharir Rachana. The appointment letter dated 29/06/2002 issued in favour of Kishor Pimparkar and Omprakash Talokar clearly indicates that on 29/06/2002 the selection committee had selected Shri Kishor Pimparkar for the post of Reader Samhita and appointed him on the same post on same day. Mr. Kishor Pimparkar seems to have resumed the post on the same day on 29.6.2002 by submitting joining report. Similarly in respect of Omprakash Talokar who was selected and appointed on 29/06/2002 by submitting joining report, Similarly in respect of Omprakash Talokar who was selected and appointed on 29/06/2002 and resumed duties on 29.6.2002 as Reader in Rasashastra.-----" With these observations, the application ex.5 filed by the Plaintiff has been rejected.

14-E:- That the Plaintiff has filed and appeal being M.C.A. no.23/2007 challenging the order passed by this Hon'ble Court below ex.5. In the said appeal on behalf of university - defendant no.4, an affidavit came to be filed by way of reply and it is specifically stated that defendant no.7 is appointed as Lecturer in Samhita Department and it is also stated that the answering defendant has to appoint the candidate selected by the committee. Then relying on this contentions Hon'ble District Court passed order on dt.30/08/2008 that they have acted upon the interview dt.29/06/2002 and appointments are made and hence issue is not surviving in MCA and it is decided on merits. Hence appeal was disposed of.

14-F:- That now the defendants are claiming that the

defendant no.7 has been selected and appointed as Professor in the Swasthha Vrutta Department and that his appointed has been approved by the University. When the defendant no.7 has been appointed and it working as Lecturer in Samhita Department, he cannot be appointed as Professor Swastha Vrutta Department. Thus, it is clear that the defendants are playing games on this Hon'ble Court. The selection, appointment and approval, if any, of the defendant no.7 as Professor in Swastha Vrutta Department is absolutely, illegal. The defendants are trying to mislead the court by filing false affidavits. They have played fraud upon this Hon'ble Court and have committed contempt of Court. Under the circumstances it is most humbly prayed that it be declared that the selection, appointment and approval of the defendant no.7 as Professor in Swasthha Vrutta Department is absolutely illegal."

4. This application was strongly objected by the

defendants. According to them, proposed amendment

changes the nature of suit and the same was not tenable in

the eyes of law. It was submitted on behalf of the

defendants that the subject matter of suit related to

appointment made in year 2002 and the proposed

amendment sought was regarding appointment based on

recruitment process of the year 2008. They submitted that

cause of action for the proposed amendment is independent

and cannot be clubbed with the cause of suit.

5. Heard the learned counsel for the parties.

6. From the cause of action stated in paragraph 16 of the

plaint in R.C.S. No.366/2002, it is apparent that cause of action

for filing the suit according to plaintiff arose on 12/02/2002,

08/04/2002 and 29/06/2002.

7. The proposed amendment in paragraph 14-A of the

application for amendment would indicate that plaintiff wants to

introduce a case in his individual capacity. R.C.S. No.366/2002 is

filed by him in the capacity of trustee. So far as paragraph 14-B

is concerned, amendment is proposed on the basis of recruitment

process of the year 2008 and approval granted in 2009. The

same is based on an independent cause of action and cannot be

clubbed with the subject matter of suit.

8. Amendment proposed in paragraphs 14-C and 14-D it

relates to the orders passed by the Court and is matter of record.

9. Pleadings raised in para 14-E would change the nature

of suit as main grievance of plaintiff as per proposed amendment

is regarding appointment of defendant No.7 as a Professor in

Swasthha Vrutta department on the basis of advertisement for

recruitment in year 2008.

10. From the the above it is apparent that reasons

recorded by the trial Court in paragraphs 14 to 19 of the order

are erroneous. Interference is thus warranted in writ jurisdiction.

Hence, the following order :

 (i)            Writ petitions are allowed.

 (ii)           Impugned order dated 18/10/2014 passed by 3rd Jt.

Civil Judge (S.D.), Akola below application Exhibit-83 in

R.C.S.No.366/2002 is quashed and set aside.

(iii) Application (Exhibit-83) stands rejected.

(iv) Trial Court to proceed with the suit in accordance with

the law.

(v) Rule is made absolute in above terms. No costs.

(Kum. Indira Jain, J.)

Asmita, PA