Shri. Vijay Dattaram Parab vs State Of Maharashtra, Through ...
2017 Latest Caselaw 3414 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.866 OF 2013


Shri Vijay Dattaram Parab
Age: Adult,
R/o. A/p Upale,
Taluka: Vaibhavwadi,
Dist. Kolhapur                             ......Petitioner

         V/s.

1 State of Maharashtra
Through
Department of Rural Development
Having its office at Mantralaya,
Mumbai-32.

2 Collector & District Magistrate,
District: Sindhudurg.

3 Sub-Divisional Magistrate,
Sub-Division: Kankavli
Dist: Sindhudurg.

4 Sachhidanand Balkrishna Palande
Age: Adult,
R/o. A/p Upale
Tal: Vaibhavwadi,
Dist: Sindhudurg.

5 Ramesh Waman Upade
Age: Adult,
R/o. A/p Upale,
Tal: Vaibhavwadi,
Dist. Sindhudurg.

6 Ravindra Atmaram Upade
Age: Adult,
R/o. A/p Upale,

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Tal: Vaibhavwadi,
Dist. Sindhudurg.

7 Bhaskar Sonu Upade
Age: Adult,
R/o. A/p Upale,
Tal: Vaibhavwadi,
Dist. Sindhudurg.                                 .......Respondents


Mr.   Chetan G. Patil , Advocate for Petitioner.
Mr.   Vishal Thadani, AGP for Respondent Nos.1 to 3.
Mr.   Vaibhav V. Ugle, Advocate for Respondent No.4.
Mr.   A.M.Savagave, Advocate for Respondent Nos.6 and 7.


                 CORAM         :       SMT. V.K. TAHILRAMANI, &
                                       SANDEEP K. SHINDE, JJ.


                 RESERVED ON                  :   June 8, 2017

                 PRONOUNCED ON                :   June 21, 2017.



JUDGMENT (Per Shri Sandeep K. Shinde, J.) :

Rule.

2 Rule made returnable forthwith. With consent of

the learned counsel for the Parties, the matter is taken up

for final hearing.

3 The Petitioner Original Applicant, before the

Maharashtra Administrative Tribunal (hereinafter referred to

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as the 'MAT'), has challenged the order dated 24.1.2013

passed in the Original Application No.299 of 2011 whereby

his application was dismissed. Aggrieved by it, this Petition

is filed under Articles 226 and 227 of the Constitution of

India.

The Petitioner would challenge selection process

of Police Patil, which is subject to the provisions of

Maharashtra Village Police Act, 1967 (In short ' Said Act')

and the Maharashtra Village Police Patil (recruitment, pay,

allowances and other Conditions of Service) Order, 1968.

(In short 'Said Order of 1968') The Respondent No.3

herein had issued a proclamation dated 6.8.2010 for

selection of Police Patil in the Village: Upale, Taluka:

Vaibhavwadi. The proclamation apart from stating

requirements for the said post also stated that written

examination of 40 marks and oral examination of 10 marks

will be conducted. The Petitioner applied to the said post

along with the necessary annexures. He had submitted a

certificate of residence and his good conduct, certified by

Sarpanch. Respondent Nos.4 to 7 had also applied for the

said post. It appears the Respondent Nos.4 to 6 had

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received a communication from the office of the

Respondent No.3 intimating that written examination was

scheduled on 3.4.2011. The Petitioner did not receive such

intimation. The Respondent No.7 had received intimation

informing that he was not qualified to be appointed to the

post of Police Patil. The Petitioner, therefore, approached

Respondent No.3 and requested to issue necessary

intimation to enable him to appear for the written

examination. On 2.4.2011, the Petitioner was informed by

the Respondent No.3 that 105 villagers of Upale Village

reported to the Collector, Sindhudurg that the Petitioner

was involved in the case of misappropriation of funds of

one Shri Siddha Gangeshwar Panchakroshi Sahakari

Patsanstha Limited, Upale and that since he was involved

in the serious case, he may not be appointed as Police

Patil. The Petitioner was, therefore, informed by the

Respondent No.3 that in view of the complaint by villagers

and that he being Complainant in Crime No.03 of 2007, he

has not been considered for the post of Police Patil. Upon

receiving this intimation, he brought to the notice of

Respondent No.3 that most of the complainants/signatories

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were neither residents of the said village nor were

members of the said society, and that complaint was also

signed by the Respondent No.4 and his family members.

He tried to persuade that complaint was set up against him

by the Respondent No.4 as well as by Respondent No.5 and

his relatives. It appears that the Petitioner was orally

assured by Respondent No.3 that he would be permitted to

appear for the examination and letter to that effect would

be issued. It appears the Respondent No.3 took the

cognizance of the complaint of the Petitioner and vide

communication dated 6.4.2011 informed him that enquiry

would be conducted through Special Executive Magistrate

and Police Inspector, Vaibhavwadi and that upon receiving

the report, he would be informed and necessary steps

would be taken.

Be that as it may, Sub-Inspector Mr. Gosavi

submitted enquiry report to the Police Inspector

Vaibhavwadi on 11.11.2010 and reported;

(1) That secret enquiry disclosed there was no consensus among the villagers about his (Petitioner) good reputation.

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                (2)       That     Petitioner's     character            and

behaviour in the village appears to be good.

He further reported there was no hindrance

and/or impediment, in appointing Petitioner and

Respondent Nos.4 to 6, as Police Patil.

4 It is the Petitioner's case that in spite of report

submitted by the Police Inspector, Vaibhavwadi, the

Respondent No.3 continued with the selection process

excluding him, which prompted him to approach the MAT

wherein he prayed that the entire selection process for the

post of Police Patil including the written examination

conducted on 3.4.2011 be quashed and the Respondents

be directed to initiate process afresh by issuing a fresh

proclamation.

On 3.5.2011, the MAT granted interim relief

whereby, the Respondents were restrained to take any

further steps in furtherance to selection process of Police

Patil.

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5                The Application was resisted by the State-

Respondents as well as by the Respondent Nos.4 to 6. The

MAT after perusing the pleadings by order dated 24.1.2013

dismissed the application of the Petitioner which he has

assailed before this Court in the present Writ Petition.

6 Heard learned counsel for the Petitioner, the

learned AGP for the State and the learned counsel for the

contesting Respondents.

7 The learned counsel for the Petitioner would

urge;

That in terms of the provisions of Clause 3(e) of

the said Order of 1968, authority under the Police Act is

required to form an opinion that the candidate is suitable

for employment as Police Patil; which he could form either

by conducting summary enquiry or otherwise. The learned

counsel would submit that no such enquiry was conducted.

He submitted that even if discreet enquiry was conducted,

there is substantial variance in the opinion formed by the

authority and the factual report.

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In support of his contention, he has taken us

through communication dated 2.4.2011. Vide this letter, he

was informed that in view of the complaint by villagers and

his alleged involvement in the case of misappropriation of

funds of village co-operative credit society, he could not be

appointed as Police Patil.

Admittedly, this communication makes

reference to complaint by villagers addressed to the

District Collector. We have gone through the complaint

dated 7.9.2010 wherein allegations were made against the

Petitioner for misappropriating funds of the village co-

operative credit society. The learned counsel for the

Petitioner, however, pointed out to us that most of the

signatories/complainant are neither residing in the said

village nor they were members of the said society. He has

pointed out that complaint was signed by the relatives of

one of the candidates who is Respondent No.4 herein. He

pointed out at Serial Numbers 89 to 95 relatives of the

Respondent No.4 had signed the complaint. The

Respondent-State could not counter these submissions. It

is, therefore, evident that this complaint was a got up

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complaint at the instance of the Respondent No.4, who was

competing with the Petitioner for the said post. Besides,

relatives of the Respondent No.5 had also signed the said

complaint. In view of this fact, we hold that the

communication dated 2.4.2011 which based on the

complaint of the villagers was issued by the Respondent

No.3 without verifying facts and contents thereof. It further

appears from the record and pleadings, it is the Petitioner,

who had filed complaint against the office bearers of the

co-operative credit society which was registered as Crime

No.03/07 for misappropriating funds of the village co-

operative credit society. The learned counsel has also

brought to our notice a statement of one Baliram Sadashiv

Palande wherein he admitted certain amount of the society

was lying in his hands and for that, he was responsible.

The learned counsel has also brought to our notice private

complaint filed by him on behalf of the said society against

one Baliram Sadashiv Palande, Suryakant Baliram Palande

and Manoj Raghunath Parab under Sections 406, 408, 417,

418, 419 and 420 read with Section 34 of the IPC in the

Court of J.M.F.C. Oras, Sindhudurg being Regular Civil Suit

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No.70/07. The learned counsel has also pointed out and

brought to our notice other proceedings initiated by him as

Secretary of the said society.

That after going through the aforesaid documents and

the proceedings initiated by the Petitioner on behalf of the

society, it is clear that the Petitioner had taken all required

steps against the persons who had caused loss to the

society and, therefore, communication dated 2.4.2011

holding Petitioner ineligible on account of complaint by the

villagers was totally unfounded and required to be quashed

and set aside. The learned counsel further pointed out

report submitted by Police Sub-Inspector, Mr. Gosavi on

11.11.2010 whereby he opined that reputation and

behaviour of the Petitioner and all other Respondents with

the villagers was good and as such, no impediment in

appointing Petitioner as Police Patil.

We have perused the report dated 11.11.2010,

communication dated 2.10.2010 by Police Inspector to

Respondent No.3 and such other documents as referred to

here-in-above. These documents cumulatively established

fact (i) that the Petitioner was not involved in crime or

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offence; (ii) he was complainant in Crime No.03/07; (iii) he

had taken all the possible steps to recover the loss caused

to the society and (iv) villagers carried good opinion about

him. That under these circumstances, the Respondent No.3

had committed an error by not permitting the Petitioner to

appear for the examination. We, therefore, hold decision of

Respondent No.3, elimination of Petitioner from selection

process was arbitrary.

8 The learned counsel has rightly pointed out

that enquiry under Clause 3(e) of the said order of 1968

contemplates either, authority has to adjudge character of

the candidates after summary enquiry or to form opinion

before holding unsuitable for employment as Police Patil.

Admittedly, in the case in hand, there was no enquiry by

the Competent Authority in-as-much as communication

date 2.4.2011 was not founded on the enquiry but based

on complaint by the villagers as referred here-in-above. In

fact situation, we are of the opinion that Respondents

authorities failed to hold enquiry as required under the

provisions of the aforesaid order of 1968.

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9                         The learned counsel for the Petitioner

further       submitted        that   memorandum     issued       by      the

Respondent No.3 for selection of Police Patil contemplates

written examination of 40 marks and interview of 10

marks. He would submit written examination of 100 marks

was held and it amounts to material change in the

conditions of the Notification and as such, entire selection

process stands vitiated.

So far as this contention is concerned, we are of the

opinion since the Petitioner had not participated or rather

was not afforded opportunity to appear for the written

examination, it would be academic to deal with this

contention raised by the Petitioner.

10 We have perused the order passed by the MAT. It

appears the learned Member of the MAT was impressed by

the report of the police dated 11.11.2010 and 2.10.2010.

We have discussed the report of the police dated

2.10.2010. We have discussed the report of the PSI Mr.

Gosavi dated 11.11.2010 submitted by him to the Police

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Inspector, Vaibhavwadi on the basis of which inspector

attached to Vaibhavwadi Police Station submitted a report

to Sub-Divisional Officer, Kankavli on 2.10.2010. This report

of 2.10.2010 refers to a fact that the Petitioner Mr. Parab

was complainant in Crime No.03/07. It also reports that

villagers did not carry good opinion about the Petitioner. So

far as opinion on the part of the villagers is concerned , the

State could not point out as to on what basis such report

was submitted. We have already discussed here-in-above

that first communication dated 2.4.2011 by the

Respondent No.3 was based on the complaint by the

villagers. We have held that the said communication was

without any foundation. Equally, the report dated

2.10.2010 on which the MAT relied upon is without any

foundation and substance and as such, in our view, finding

recorded by the MAT that since villagers were not carrying

good opinion about the Petitioner is incorrect. The learned

MAT recorded factually incorrect finding that since there

were serious allegations against the Petitioner about

committing irregularities in the affairs of the society that

itself was sufficient to hold him ineligible to the post of

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Police Patil. We have already discussed various proceedings

adopted by the Petitioner against the persons who had

committed irregularities in the affairs of the society. We

have concluded that the Petitioner had taken all possible

steps in law against said officers of the society. It is he who

had filed criminal proceedings against the office

bearers/employees of the society. Under these

circumstances, in our view, finding recorded by the MAT in

paragraph 6 of its order are contrary to the evidence on

record.

In the circumstances, the Petitioner has

successfully shown and established that his elimination

from selection process of Police Patil by the Respondent

No.3 was arbitrary, being contrary to the provisions of the

said order of 1968 and equally contrary to the facts as

borne out from the records and discussed here-in-above.

The State could not justify correctness of communication dated

2.4.2011, whereby the Petitioner was not ineligible to appear

for examination scheduled on 3.4.2011. That resultantly, the

order dated 24.1.2013 is hereby quashed and set aside and

the Original Application is allowed in terms of prayer clause

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(a) therein.

11 It appears that in terms of the provisions of the

said Act and clause 3 of the said order of 1968, no person

below 25 years of age or over 45 years of age at the time

of appointment shall be eligible for being appointed as

Police Patil. The Petitioner as well as contesting Respondent

Nos.4 to 6 informed across the bar that all the contesting

candidates have crossed age upper limit. In this fact

situation, though the Petitioner has succeeded in

establishing that decision of Respondent No.3 to exclude

the Petitioner from selection process, was arbitrary, there is

an impediment for him to apply and to be considered for

the post of Police Patil. However, in peculiar facts and

circumstances and also the fact that selection process was

stayed by MAT by interim order dated 3.5.2011 and the

fact that interim relief was continued during the pendency

of this petition, the Petitioner and/or the contesting

Respondents may make an appropriate representation to

the State for relaxing age limit in case, a fresh

memorandum is issued by the State for appointing Police

Patil in Village: Upale. That if such representation is made, Shivgan

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the State may consider the same as it deems fit and

proper. With this direction, the Petition is allowed and the

order dated 24.1.2013 passed by the MAT in O.A.No.299 of

2011, is hereby set aside. The Petition is made absolute in

aforesaid terms .

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)

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