Bombay High Court

Shri Ravindra Arun Sonawane vs The State Of Maharashtra Through ... on 30 June, 2017

Bench: V.K. Tahilramani

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CIVIL APPELLATE JURISDICTION

                 WRIT PETITION NO. 11806 OF 2015



Shri. Ravindra Arun Sonawane                      .....Petitioner

         V/s.

The State of Maharashtra and Ors.                        ...Respondents

                                     *****

Mr. Nitin P. Dalvi, Advocate for the petitioner.

Mr. N.C. Walimbe, AGP for the State, respondents no.1 to 4.

Mr. Abhijit B. Kadam, Advocate for respondent no.5.



         CORAM :-                    SMT. V.K. TAHILRAMANI, &

                                     SANDEEP K. SHINDE, JJ.

         RESERVED ON :-              20 th June, 2017.

         PRONOUNCED ON:-             30 th June, 2017.

ORAL JUDGMENT : (Per :- SANDEEP K. SHINDE, J)

1. Rule. Rule made returnable forthwith. Heard

finally by consent.

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2.               Heard both sides.

3. The facts giving rise to the petition are as

under :-

. The Commissioner of Education (Secondary and

Higher Secondary), respondent no.2 herein, issued an

advertisement on 17th February, 2010 and invited

applications for the post of "Peon" then reserved for the

Sports category. The qualification, eligibility for the Sports

category was subject to G.R. dated 30 th April, 2005 in its

terms, Clause-4(C) for Class-C and D, which is as under :-

". For the said Post, Player should acquire minimum 1st, 2nd and third prize in State Level Tournaments or Gold, Silver or Bronze Medal in Individual Game as well as common games. State Level Tournaments should be organized by Associations which are affiliated with the Maharashtra Olympic Association."

4. The petitioner, as well as, respondent no.5 applied for

the said post. On 23rd April, 2012 the petitioner was

appointed on the said post upon certain terms and

conditions. In January, 2013 respondent no.5 herein

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challenged the appointment of the petitioner dated 23 rd

April, 2012 vide O.A. No. 52 of 2013 before the

Maharashtra Administrative Tribunal (MAT), Mumbai,

Bench at Aurangabad. The petitioner herein was

impleaded as a party respondent in the said O.A. On 12 th

March, 2013 the petitioner appeared before the

Aurangabad Bench in O.A. No. 52 of 2013. It appears, after

appointment, the petitioner's documents which were

submitted by him for claiming the said post, were sent for

verification to ascertain whether he qualifies in terms of

the G.R. dated 30th April, 2015. In January, 2013 he was

found not eligible to be appointed from the sports category.

Resultantly, on 15th April, 2013 his services were

terminated. It prompted the petitioner to file O.A. No. 331

of 2013 before MAT, Mumbai Bench at Mumbai. It is

interesting to note that, at a given point of time O.A. No. 52

of 2013 filed by respondent no.5 was pending at

Aurangabad Bench. It is further interesting to note that,

the petitioner herein did not implead respondent no.5 in

O.A. No. 331 of 2013. That on 9 th October, 2013, O.A. No.

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331 of 2013 was allowed by the MAT, Mumbai and the

petitioner was reinstated in service.

5. It may be stated that, though the petitioner had

appeared at Aurangabad in O.A. No. 52 of 2013, he did not

referred to such proceedings in O.A. No. 331 of 2013 filed

by him at Mumbai against the order of termination dated

15th April, 2013. Respondent no.5, after gaining knowledge

that, the petitioner has been reinstated vide order dated 9th

October, 2013 applied to MAT, Mumbai for transfer of her

O.A. No. 52 of 2013 from Aurangabad to Mumbai. It was

then numbered as O.A. No. 612 of 2014. Respondent no.5

also filed a Review Application No. 25 of 2014 and sought

review of order dated 9th October, 2013 passed in O.A. No.

331 of 2013.

6. That as such, all proceedings i.e. O.A. No. 612 of

2014 (filed by respondent no.5 herein) and Review

Application No. 25 of 2014 were heard together and by

order dated 8th October, 2015 directed thus; (i) respondent

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no.5 was held entitled to be appointed to the post of Peon

from the sports category subject to verification as per

rules, (ii) respondents were directed to initiate the process

of verification forthwith and complete it within four weeks,

(iii)if the applicant is found eligible in that behalf,

necessary order be issued within two weeks thereafter, (iv)

respondent no.5 shall be appointed to the post and if it is

necessary that someone may have to be removed, he be

removed.

7. That in terms of the order dated 8th October,

2015, verification of documents submitted by respondent

no.5 was done. She was found eligible to be appointed in

terms of the G.R. dated 30th April, 2005. Resultantly, on

27th November, 2015 petitioner herein was terminated

from service as he was not eligible for the appointment

from the sports category.

8. Being aggrieved by the order dated 8th October,

2015 passed by the MAT, Mumbai, this petition under

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Article 226 and 227 of the Constitution of India, is

preferred.

9. The respondent, State, as well as, the contesting

respondents filed their respective affidavits. The State, in

its affidavit, contended that the petitioner had only

participated in the All India International Tournament for

Power Lifting in the year 2007-08 but did not secure rank

and had acquired the first position only at the University

Tournament. The State, further contended that, the

petitioner had neither won any Gold, Silver or Bronze

Medal nor acquired any rank/position in the Inter-State

Tournament. That as such, the petitioner did not comply

with the criteria laid down in terms of Clause-4(C) of the

G.R. dated 30th April, 2005. The State, would further

contend that, in the circumstances, the petitioner was not

eligible to be appointed from the sports category. The

State, therefore supported the order passed by the MAT.

Respondent no.5 in her counter submitted that, the

petitioner was not fulfilling the requirements of the subject

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G.R. She would contend that, she had participated in the

Junior National Softball Championship-2000 organized by

the Andhra Pradesh Softball Association which is affiliated

to Softball Association of India and in support of her claim,

has placed on record, a Certificate issued by the State

certifying her participation in the State Level Softball

Competition held at Solapur and the Certificate issued by

the Andhra Pradesh Softball Association.

10. Heard Mr. Dalvi, the Learned Counsel for the

petitioner. It is not in dispute that, respondent no.5 was

found eligible to be appointed from the sports category in

terms of the G.R. dated 30th April, 2005, whereas, the

petitioner was found not eligible. The G.R. lays down the

eligibility criteria for appointment from the sports category

and clarifies that a mere participation in the tournament,

even if duly recognised, would not be sufficient and the

candidate must have secured a first, second or third

position in the said Tournament or should have bagged

Gold, Silver or Bronze medal. Therefore, a mere

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participation would not be sufficient. Admittedly, the

petitioner had not secured either of these positions/ranks

in the tournament. He did not bag Gold, Silver or Bronze

medal. Therefore, on this count, we hold that the petitioner

was not qualified to be appointed as a "Peon" from the

sports category. On the other hand, after perusing affidavit

of State and Certificates produced on record by respondent

no.5, we hold that, respondent no.5 was qualified and

eligible to be appointed from the Sports category in terms

of G.R. dated 30th April, 2005 and therefore finding

recorded on this issue requires no interference.

11. We have perused the order passed by the MAT.

That in the concluding paragraphs of the impugned order,

the respondents were directed to initiate the process for

verification, the eligibility of respondent no.5 (who was an

applicant before the MAT) within four weeks and

communicate the decision within one week thereafter. The

respondents were directed that, if the applicant is found

eligible then they shall appoint her to the said post and if

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for such appointment, anyone is required to be removed,

the same may be done. It is not in dispute that, respondent

no.5 was found eligible and the petitioner herein was found

not eligible. That in the circumstances, vide order dated

27th November, 2015 the petitioner's services were

terminated which order is at page-54 of the petition.

12. In the subject petition, the substantive prayer is,

to set aside the judgment and order dated 8th October, 2015

passed in O.A. No. 612 of 2014. In alternative, the

petitioner sought directions to the respondents to

accommodate him in view of Affidavit dated 3 rd September,

2015 filed by the Deputy Director of Education, Nashik

Division, Nashik before the MAT. That by way of interim

relief, the petitioner sought stay to the order of termination

dated 27th November, 2015.

13. That amongst the aforesaid prayers, the

petitioner has not sought substantive prayer to quash and

set aside the order dated 27th November, 2015 i.e. his

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termination order.

14. Mr. Dalvi, argued that the co-ordinate Bench

could not have reviewed/revoked the order dated 9th

October, 2013 passed in O.A. No. 331 of 2013 whereby he

was reinstated in service. At the first place, the order

dated 27th November, 2015 was neither assailed by him

before the MAT, nor before this Court. Secondly, from the

tenor of the order, it cannot be said that MAT has reviewed

the order dated 9th October, 2013.

. We have perused the order and, in our opinion, MAT

has not reviewed the order dated 9 th October, 2013 but in

substance directed to verify as to whether, respondent

no.5 herein was eligible to be appointed from the Sports

category. At the same time, on merits, MAT has held, the

petitioner was not eligible to be appointed from the Sports

category in view of the G.R. dated 30th April, 2005. The

respondents, State after obtaining the copy of the order

dated 8th October, 2015 and after verifying the eligibility of

respondent no.5 herein issued the order dated 27 th

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November, 2015. That in the circumstances, the

contention of the petitioner that the impugned order

reviewed the order dated 9th October, 2013 passed in O.A.

No. 331 of 2013 lacks substance and same is rejected.

15. Mr. Dalvi, in the course of the argument, to

justify the eligibility of the petitioner has relied on the

order dated 16th June, 2011 passed by MAT, Mumbai in

Review Application No. 7 of 2007 in O.A. No. 875 of 2009.

We have perused the order, wherein, the applicant was

seeking post of Police Constable under the Sports category.

Admittedly, the recruitment of Police Constables is subject

to the Maharashtra Police Constables (Recruitment) Rules,

2006. Rule-6(B) stipulates eligibility, which reads as

under :-

"6(B) ELIGIBILITY :

(i) Participation in International/National/All India Inter University levels in any of the sports disciplines listed below. Participation at national level will include School Nationals, Sub Junior Nationals (Under 17 years), Junior Nationals (Under 19 years), Youth Nationals

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(Under 21 years) and Senior Nationals.

(ii)Medal winners at State level (Inter District) Sports Tournaments in any of the sports disciplines listed below."

. Mr. Dalvi, would contend that the aforesaid Rule was

considered in depth by the Division Bench Judgment of

Aurangabad Bench, wherein participation at the Zonal

Level in the All India Inter University Tournament was

held, that it amounts to participation in All India Inter

University Level.

. Relying on these rules and observations as

reproduced, Mr. Dalvi, submitted that, mere participation

is sufficient to cross the threshold of eligibility and