Suresh Sakharam Kharat vs State Of Mah & Ors
2017 Latest Caselaw 3519 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

              WRIT PETITION NO.736 OF 2005 
                         
Suresh s/o. Sakharam Kharat,
Age : 38 years, Occ. Nil,
r/o. Sakshi Niwas, Plot No.4,
Venkatesh Colony, Deolai,
Tq. and Dist. Aurangabad                                              PETITIONER 

     VERSUS

1. The State of Maharashtra ,
   Through Secretary,
   Ministry of Health,
   Mantralaya, Mumbai

2. Maharashtra University of 
   Health Sciences,
   Gangapur Road, Anandvalli,
   Nashik - 422 013

3. Mahatma Gandhi Mission's
   Medical College, N-6, CIDCO,
   New Aurangabad - 431 003                  RESPONDENTS
                            --
Mr.V.S.Bedre, Advocate for petitioner
Mr.A.S.Shinde, AGP for respondent no.1
Mr.K.D.Bade-Patil, Advocate for respondent no.2
Mr.V.D.Salunke, Advocate for respondent no.3
                            --

                                      CORAM :   T.V. NALAWADE AND 
                                                SANGITRAO S. PATIL, JJ.

DATE : 22nd JUNE, 2017

ORAL JUDGMENT (PER : T.V. NALAWADE, J.) :

Heard the learned counsel for the contesting

parties and the learned A.G.P.

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2. The petitioner has prayed for the following

reliefs :-

(B) By issuing appropriate writ in the nature of directions, respondent no.3 Medical College may be directed to allow the petitioner to resume his duties as a Tutor in Microbiology w.e.f. 27/6/1998 in the interest of justice.

(B-1) By issuing appropriate writ in the nature of directions, respondent no.3 Medical College may be directed to issue necessary appointment order to the petitioner as a Tutor in Microbiology w.e.f. 27.6.1998 in the interest of justice.

(C-i) By issuing appropriate writ in the nature of directions, the respondents may be directed to pay to the petitioner the salary of the post of Tutor in microbiology w.e.f. 27.6.1998 in the interest of justice.

(C-ii) By issuing appropriate writ in the nature of directions, the respondents may be directed to pay the difference of salary along with 18% interest to the petitioner w.e.f. 27.6.1998 in the interest of justice.

(C-iii) By issuing appropriate writ in the nature of directions, the respondents may be directed to grant the benefits of promotion with and all service benefits including the

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deem date and other statutory benefits to the petitioner w.e.f. 27.6.1998 in the interest of justice.

3. The learned Counsel for the petitioner submits

that in response to the advertisement dated 02.09.1997

published by respondent no.3 for the post of Tutor in

Microbiology, the petitioner, being eligible since he

was M.Sc. in Medical Microbiology, applied for the said

post. He was interviewed on 27.06.1998 and was selected

for the said post. However, respondent no.3 did not

issue appointment order without any sufficient cause or

reason and despite several representations made by the

petitioner. The petitioner then approached the

authorities concerned of Dr.Babasaheb Ambedkar

Marathwada University, Aurangabad and also the Grievance

Committee of Maharashtra University of Health Sciences,

Nashik for redressal of his grievance. Both the

Universities directed respondent no.3 to appoint the

petitioner to the post of Tutor, however, respondent

no.3 did not respond positively and compelled the

petitioner to approach this Court.

4. This Court, as per the order dated 12.04.2005,

granted interim relief in terms of prayer Clause (D) and

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directed respondent no.3 to appoint the petitioner to

the post of Tutor. Accordingly, respondent no.3

appointed the petitioner as Tutor on 06.06.2005 on

consolidated salary of Rs.7,000/- without any pay

scale, increments, etc.

5. The learned Counsel for the petitioner submits

that the claim of the petitioner for appointment to the

post of Tutor has been wrongly refused since year 1998.

Therefore, the petitioner claimed the above mentioned

reliefs.

6. On the other hand, the learned Counsel for

respondent no.3 submits that the petitioner, in fact,

was not holding the requisite educational qualification

for the post of Tutor and therefore, he was not

appointed to the said post. He further submits that the

petitioner was not an employee of respondent no.3.

Therefore, the Grievance Committees of Dr.Babasaheb

Ambedkar Marathwada University, Aurangabad and

Maharashtra University of Health Science, Nashik had no

jurisdiction to entertain the grievance of the

petitioner and issue any directions to respondent no.3.

According to him, the said directions were without

jurisdiction. He further submits that mere selection of

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a candidate to any particular post would not vest any

indefeasible right in him to get appointment. In support

of this contention, he relied upon the judgments in the

cases of Shankarsan Dash Vs. Union of India, (1991) 3

SCC 47 and Union Territory of Chandigarh Vs.

Dilbaghsingh, (1993) 1 SCC 154. He submits that the

petitioner came to be appointed only because of the

interim relief granted by this Court. According to him,

the petitioner, who has not at all been appointed by

respondent no.3, is not entitled to continuation in the

service. He submits that the petitioner is not entitled

to seek reliefs as prayed for.

7. In the case of Union Territory of Chandigarh

Vs. Dilbaghsingh (supra), the Hon'ble Apex Court in

paragraph 11 of the judgment has observed as under :-

"11. If we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in the absence of any specific Rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the

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Administration does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily."

8. In the case of Shankarsan Dash Vs. Union of

India (supra), it is observed in paragraph 7 of the

judgment as under :-

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that

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the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."

9. Respondent No. 3 - Institution has not disputed

that the recruitment process was started by it and as

per the procedure laid down in the Statutes framed under

the Marathwada University Act, 1974, Dr. Babasaheb

Ambedkar Marathwada University had constituted a

Committee for selection. Though in the reply-affidavit,

respondent No. 3 has contended that the petitioner had

applied for the post of Lecturer, the correspondence and

submissions made show that the petitioner had applied

for the post of Tutor. In view of this circumstance,

there is no need to consider the contention of

respondent No. 3 that the petitioner was not satisfying

the eligibility conditions which were required for the

post of Lecturer. The correspondence on record is

sufficient to infer that the proposal made by the

Selection Committee was accepted by the University. The

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selection process was completed in June, 1998 and the

selection of the petitioner was approved by the

University by letter dated 4th October, 2000. In view

of the observations made by the Hon'ble the Apex Court

in the two cases of Shankarsan Dash and Union Territory

of Chandigarh (supra), it needs to be ascertained as to

whether it is binding on respondent No. 3 to give

appointment to the petitioner on the post of Tutor.

10. The attention of this Court was drawn to the

provisions of the Maharashtra University of Health

Sciences Act, 1998. The provision of Section 1 of the

said Act shows that the said Act of 1998 came into force

on 3rd June, 1998. Thus, on the day when the candidates

were interviewed for selection by the Selection

Committee, the Maharashtra University of Health Sciences

Act, 1998 had come into force. The Committee, which

took interviews, was constituted under the Maharashtra

Universities Act, 1994 and not under the Maharashtra

University of Health Sciences Act, 1998. Thus, the

question arises as to the competency of the Selection

Committee which took the interviews for selection.

11. The correspondence on record shows that

ultimately, Dr. Babasaheb Ambedkar Marathwada University

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had informed the petitioner, vide communication dated 21 st

August, 2002, that the University created under the

Maharashtra University of Health Sciences Act, 1998 had

the jurisdiction over the subject and that he should

contact the said newly created University for further

action in the matter. Though there is correspondence

showing that the Maharashtra University of Health Sciences

had also considered the grievance of the petitioner and

had directed respondent No. 3 to see that the appointment

was given to the petitioner, it can be said that his

selection itself was not made as per the new Act of 1998

and hence, the petitioner did not have any right to say

that he was entitled to get the appointment in view of his

selection made by the Committee constituted under the

provisions of the previous Act i.e. the Maharashtra

Universities Act, 1994 by the other University. The

purpose behind creation of one more University under the

Maharashtra University of Health Sciences Act, 1998 is

different and the Selection Committee will consist of the

experts in different field. In this view of the matter,

we hold that it was not binding on respondent No. 3 to

give appointment to the petitioner on the post of Tutor.

12. The submissions made show that in view of the

interim order passed by this Court, the petitioner got

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the appointment and he is getting the consolidated

salary though not regular pay scale. He has worked for

the period starting from the date of appointment given

to him on such post. This circumstance cannot be

considered in favour of the petitioner for getting

ultimate relief. In the circumstances, we hold that the

directions as sought by the petitioner cannot be granted

in view of the peculiar facts of the present case. In

the result, we pass the following order:

O R D E R

(i) The Writ Petition is dismissed.

(ii)             Rule stands discharged.


(iii)            The  interim  relief   granted  by  this  Court  vide 

order 12th April, 2005 is hereby continued for a

period of six weeks from today, at the request

of the learned counsel for the petitioner.

(iv)             No costs.



        [SANGITRAO S. PATIL]                      [T.V. NALAWADE]
                JUDGE                                   JUDGE

npj/wp736-2005