Sadanaand Hariji Dhargave ... vs The State Of Mah. Mumbai & 4 Others
2017 Latest Caselaw 3575 Bom

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

WRIT PETITION NO.357/2002

Shri Sadanand Harji Dhargave Aged 42 years, occu: Agril. Labour, R/o Bamni, Po: Palora, Tah.Pauni Dist. Bhandara. ..PETITIONER

v e r s u s

1) The State of Maharashtra Rural Development and Water Conservation Department Mantralaya, Mumbai-32.

2)        The Chief Executive Officer,
          Zilla Parishad, Bhandara. 

3)        The Chief Executive Officer, 
          Zilla Parishad,  Gondia Dist. Gondia. 

4)        Shri  Krushnakumar Wasudeo Nagpure 
          Gram Sevak,R/o Tumkheda 
          Tah. & Dist.Gondia, 
          C/o BDO  Panchayat Samiti, Tumsar 
          Z.P.  Bhandara. 

5)         The Collector, Bhandara 
           Dist. Bhandara.                                                                      ..RESPONDENTS

...........................................................................................................................

Mr. A.Z.Jibhkate, Advocate for the petitioner Mrs. Geeta Tiwari, Asst. Govt. Pleader for respondent no.1 Mrs. M.P.Munshi, Advocate for respondent nos.2 and 3 Mr. G.G.Mishra, Advocate for respondent no.4 ............................................................................................................................

                                                     CORAM:    R.K.DESHPANDE &
                                                                    MRS . SWAPNA JOSHI, JJ
                                                                                          . 
                                                     DATED :       23  June, 2017
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ORAL JUDGMENT: (PER R.K.DESHPANDE, J.)

This petition filed in the year 2002 challenges the orders

dated 12.10.2000 and 21.05.2001 rejecting the claim of the petitioner

for the post of Gramsevak and selecting and appointing the respondent

no.4 to the post of Gramsevak from the category of projected affects

persons and claims direction to the respondent nos. 2 and 5 to appoint

the petitioner in place of the respondent no.4 as Gramsevak from the

project affected persons category and pay the petitioner all the

consequential benefits, including the arrears of pay from the date of

such appointment.

2. The undisputed factual position is to be narrated first : The

posts available under Zilla Parishad, Bhandara were required to be filled

in from the category of 'project affected' persons for whom 5%

reservation was provided. The process for making such appointment

was initiated in the year 1999 by calling a list of project affected persons

available in the office of Collector, Bhandara. The persons from

Bhandara District in the list of project affected persons were required

to be preferred over the persons in other Districts and if the persons

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from Bhandara District belonging to Project affected category were not

available, then only the persons from other Districts could be considered

from such category.

3. On 19.05.1999 a select list of persons in Bhandara District

from such category, was prepared. The name of the respondent No.4-

Krishnakumar Nagpure was at Sr.No.940. He was interviewed on

06.03.2000 along with other persons from the list provided by Collector,

Bhandara. Though he was selected from general/ open category, the

order of appointment was not issued to him in spite of there being a

vacancy.

4. The petitioner was granted certificate of project affected

person on 25.05.1999 and his name was included in the list of project

affected persons maintained by Collector, Bhandara, at Sr.No.1140. The

petitioner belongs to Scheduled Caste category and according to

respondent no.2-Zilla Parishad, Bhandara, though the petitioner was

selected for appointment he was not appointed to the post which was

vacant because the post was for open category candidate. This was

communicated to the petitioner by an order dated 12th October, 2000

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which is the subject matter of challenge in this petition. On 21st May

2001 the petitioner was informed that there was no post lying vacant so

as to appoint him as Gramsevak. This order is also the subject-matter of

challenge in this petition. Consequently, the issue was also before the

State Government as to whether the post is to be filled in from Open

category or from Scheduled Castes category.

5. Upon receipt of the directions from the State Government,

the respondent no.4 was appointed on the vacant post of Gramsevak

in the services of the Zilla Parishad, Bhandara, by an order dated

31.05.2001 pursuant to his selection which was made on 06.03.2000.

The petitioner, therefore, also challenges the appointment of the

respondent no.4 on the post of Gram Sevak from the category of project

affected persons.

6. This matter was admitted on 07.02.2002. Thereafter this

Court passed several orders and the order dated 23.01.2013 passed by

this Court is reproduced below :-

" Civil Application (CAZ) No. 1909/12 is taken out by the petitioner for grant of out of turn hearing.

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The petitioner is challenging the selection of respondent no.4 as Gram Sevak for Gondia District. Learned counsel appearing for respondent no.2-Zilla Parishad, Bhandara, points out that the petitioner was absent even on last date of hearing. It is further stated that there are no vacancies. Learned Assistant Government Pleader reiterates the same

The law on the point is well-settled by the Full Bench judgment of this Court in the case of Rajendra Pagare and another vs. State of Maharashtra and others, reported in 2009 (4) Mh.L.J. 961.

The petitioner, therefore, has to apply whenever there is an advertisement for effecting recruitment of the persons from project affected category.

Hence, with liberty to the petitioner to apply as and when such an advertisement is issued, we direct to list this petition for further consideration on 18.02.2013 with notice to the parties that the Court may dispose of this petition if otherwise convenient to the Court."

7. It is informed that though the petitioner appeared pursuant

to the advertisement issued, he was not selected as not being found in

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merit. We find that though the fact that the petitioner belongs to project

affected category is not disputed and he was in possession of the

certificate dated 25.05.1999 issued by the competent authority, in view

of the decision of the Full Bench of this Court in the case of Rajendra

Pagare and another vs. State of Maharashtra and others, reported in

2009(4) Mh.L.J.961, it is not possible for us to direct the appointment

of the petitioner from such category in any post if lying vacant. The

petitioner has to go through the necessary process of selection to be

conducted in terms of the aforesaid decision of the Full Bench, cited

supra and it is only upon his selection that an appointment can be

made. Such a claim of the petitioner for appointment in any vacant post

is, therefore, rejected.

8. The contention of Shri Jibhkate, learned counsel for

petitioner is that the respondent no.4 was from Gondia District,

whereas the petitioner was from Bhandara District and in terms of the

policy of the State Government unless a list of project affected persons

available in the list with the Collector from Bhandara District is

exhausted, no person who is the resident and project affected person

belonging to different District can be appointed. He submits that Gondia

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and Bhandara are two distinct Districts and the recruitment being in

Bhandara District, the respondent no.4 belonged to Gondia District could

not have been preferred in the matter of employment on the post in

question as Gramsevak.

9. It is not in dispute that initially Taluqa Gondia was

included in District Bhadara and on 10.05.2000, a separate revenue

District of Gondia came into existence. Prior to creation of separate

Gondia District, a list of project affected persons from Bhandara District

was prepared on 19.05.1999 and it included the name of the

respondent no.4. The respondent no.4 was interviewed on 06.03.2000

i.e. even prior to creation of Gondia District and hence the said list

was operated. In the list of project affected persons maintained by the

office of the Collector, Bhandara the name of respondent no.4 was at

Sr.No.940, whereas the name of petitioner was at Sr. No. 1140. We,

therefore, do not find any substance in the contention raised by Shri

Jibhkate, learned counsel for the petitioner that it is the respondent no.

4 who belonged to Gondia District, could not have been preferred over

the petitioner for appointment to the post in question.

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10. In view of the above, we do not find any substance in the

Petition. The same is therefore dismissed, with no order as to costs.

                          JUDGE                      JUDGE

sahare