Rukmin Maruti Shinde vs Pralhad Munjaji Raner And Others
2017 Latest Caselaw 1333 Bom

                                                                   wp1515-17.odt
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      WRIT PETITION NO. 1515 OF 2017

    Rukhmin d/o Maruti Shinde                      ...  Petitioner
    Aged 26 years, Occu: Service,
    (As police Patil, Village 
    Sarangpur), Tal. & Dist. 
    Parbhani, R/o Sarangpur,
    Taluka and Dist. Parbhani

    VERSUS

1. Pralhad s/o Munjaji  Raner
   Age 28 years, Occu:Agriculture,
   R/o Sarangpur, 
   Taluka & Dist. Parbhani

2. The State of Maharashtra,
   Through its Secretary,
   Home Department, M. S. 
   Mantralaya, Mumbai-32

3. The Collector, Parbhani

4. The Sub-Divisional Magistrate,
   Parbhani, Tq.& Dist. Parbhani

5. The Tahsildar, Parbhani                         ... Respondents
   Taluka and Disit. Parbhani.


Mr. Avinash S. Deshmukh, Advocate for the petitioner, 
Mr. N. B. Khandare, Advocate for respondent No.1.
Mrs. V.H. Patil, A.G.P. for the respondents State.

                          CORAM          :  S. V. GANGAPURWALA & 
                                           K. L. WADANE, JJ.
                          RESERVED ON    :  17th February, 2017

                          PRONOUNCED ON  : 31st March, 2017




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JUDGMENT (Per K. L. Wadane, J.): 

1. Heard the learned counsel for the parties.

2. Rule. Rule made returnable forthwith. With

consent of parties, the petition is taken up for final

disposal.

3. The petitioner has assailed the order dated

24.01.2017 passed by the Maharashtra Administrative

Tribunal allowing Original Application No. 585 of 2016.

4. The case of the petitioner, in brief, may be

stated as follows:

5. On 22.12.2015, respondent No.4 issued an

advertisement for filling in posts of Police Patil

including the post of Police Patil at village

Sharnapur, which was earmarked for "Open General"

category. Respondent No.1 applied for the said post.

In the selection process, five candidates were found

to be eligible, including the petitioner and respondent

No.1. All of them were called for interview.

6. On 11.02.2016, before the interview could be

conducted, the petitioner has submitted an application

before respondent No.4 contending that Crime bearing

wp1515-17.odt C.R.No.218/2015 was registered against Respondent No.1

with the Parbhani(R), Police Station on 20.12.2015 for

the offence punishable under sections 323, 504, 506

read with section 34 of the Indian Penal Code. The

petitioner has specifically contended that respondent

No.1 has suppressed the said information regarding

registration of offence against him. On 13.03.2016,

the Superintendent of Police, Parbhani sent a

confidential report to respondent No.4, informing that

non cognizable offence was registered against

respondent No.1, in which prohibitory action was taken

against him by the Executive Magistrate, Parbhani on

22.12.2015. In spite of the above aspects, respondent

No.4 has rejected the objections submitted by the

petitioner and by order dated 22.02.2016, held

respondent No.1 to be eligible to participate in

interview.

7. On 27.02.2016, interviews were held and

consequently respondent No.4 published final select

list and wait list. Respondent No.1 was selected for

being appointed as Police Patil. The petitioner was

named as wait listed candidate.

8. On 23.03.2016, the petitioner submitted another

wp1515-17.odt objection before Respondent No.4 pointing out as to how

and why respondent No.1 could not be appointed as

Police Patil. In view of the objections, respondent

No.4 withheld the appointment order in favour of

respondent No.1 and called his explanation on

16.04.2016. While dealing with the objection submitted

by the petitioner, respondent No.4 has held that while

submitting application for the post of Police Patil,

respondent No.1 had suppressed the true information

regarding his character and as such he has mislead the

Government by answering question regarding clean

character in the application form.

9. Being aggrieved by such finding, respondent no.1

filed the original application. On 26.07.2017,the

Tribunal was pleased grant interim stay to the order

dated 16.07.2016. However, other interim prayer as

sought by respondent No.1 in the nature of direction

to respondent No.4 not to give appointment to any other

candidate was not granted.

10. Though the learned Tribunal was pleased to pass

interim order on 26.07.2016, however, on the same day,

respondent No.4 was pleased to issue appointment order

in favour of the petitioner. The petitioner joined on

wp1515-17.odt the post of Police Patil and started discharging

duties. In view of the development of issuance of

appointment order in favour of the petitioner,

respondent no.1 carried out amendment in the original

application and assailed the said appointment.

11. Learned Tribunal allowed the Original

application on 24.01.2017. The order passed by

respondent No. 4 dated 16.07.2016 was set aside and

also quashed and set aside the order of appointment of

the petitioner as Police Patil. Hence this writ

petition.

12. We have heard Mr. Avinash S. Deshmukh, learned

Advocate for the petitioner, Mr. N. B. Khandare,

learned Advocate for respondent No.1 and Mrs. V. H.

Patil, learned A.G.P. for the respondents State.

13. Mr. Deshmukh, the learned counsel appearing for

the petitioner submitted that respondent No.1 has

suppressed the material fact about registration of

crime against him. This aspect is sufficient ground to

disqualify the respondent No.1 for the appointment as

Police Patil.

14. As against this, Mr. Khandare, the learned

wp1515-17.odt counsel for the respondent No.1 has argued that non

cognizable offence is not the offence within the

meaning of term "offence" under section 40 of the

Indian Penal Code. Furthermore, that proceeding is

concluded. The learned counsel argued that objection

of the petitioner about suppression of information

was rejected by respondent No.4 on 22.02.2016. The

petitioner has not challenged the said order before any

appropriate forum. Therefore, that order attains

finality. According to Mr. Khandare, the subsequent

order dated 16.07.2016 passed by respondent No.4 on the

same objection of the petitioner is without

jurisdiction. The learned counsel submitted that

there is no provisions in law to review the order

dated 22.02.2016 nor the respondent No.4 can sit as an

Appellate Authority over its own order. Therefore, the

order passed by respondent No.4 i.e. the same officer

on 16.07.2016 is illegal.

15. We have perused the affidavit submitted on

behalf of respondents 2, 3 and 4 before the Tribunal,

wherein, it is mentioned that there is no provisions

in law to review the order of appointment of Police

Patil. However, it is further sated that the Sub-

wp1515-17.odt Divisional Magistrate i.e. Respondent No.4 is acting in

dual capacity, i.e. Administrative as well as quasi

judicial authority. Therefore in that capacity, if

certain orders were wrongly passed, then the Sub

Divisional Magistrate can correct it. However, before

doing so, it is necessary to issue notice to the

persons against whom the order is to be passed. The

same is mentioned in the Government Resolution, dated

07.09.1999 issued by Home Department, Mantralaya,

Mumbai.

16. Respondent Nos. 2 to 4 have stated in their

affidavit that there is no provision in law to review

the orders regarding appointment of Police Patil.

Here, in the present case, respondent No.4 has

reviewed his earlier order dated 22.02.2016 and

accepted the same objection of the petitioner on

16.07.2016. No further material or additional

allegations are made against respondent No.1.

Therefore, we are of the opinion that respondent No.4

cannot reexamine its own earlier order nor can review

such orders in absence of any provisions in the law.

17. We have gone through the reasons recorded by

the learned Tribunal. It has rightly observed that

wp1515-17.odt respondent No.4 cannot sit as an appellate authority

or reviewing authority to re-consider its earlier order

and therefore has rightly allowed the original

application and has set aside the order dated

16.07.2016.

18. The learned counsel for the petitioner relies on

the judgment of the Apex Court in the case of Avtar

Sing Vs. Union of India and others, reported in (2016)

8 Supreme Court Cases, 471, wherein it is observed that

if there is suppression of relevant information or

submission of false information in the verification

form in regard to criminal prosecution, arrest or

pendency of criminal case against candidate/employee,

in such circumstance, the employer has to take decision

to terminate or retain the employee in service. The

above observations are not applicable to the facts of

the present case, simply because the petitioner has not

challenged the order dated 22.02.2016 by which the

respondent no.4 has rejected the objections of the

petitioner as to eligibility of the petitioner.

Moreover, the offence registered was non-cognizable

and the proceeding was concluded.

19. In view of the above, there is no merit in the

wp1515-17.odt petition. Judgment of the Maharashtra Administrative

Tribunal does not require any interference.

20. Writ petition is accordingly dismissed. Rule

discharged. No order as to costs.

(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. )

JPC