Bombay High Court
Kailaschandra Vithalrao ... vs The State Of Maharashtra And ... on 21 March, 2017
Bench: R.M. Borde
1 WP No.6345/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6345 OF 2016
Kailaschandra s/o Vithalrao Waghmare,
Age:40 years, Occu.: Service,
(as Naib Tahsildar)
R/o.: Tathagatnagar, Malegaon Road,
Taroda Khu., Nanded-5
- PETITIONER
VERSUS
1. State of Maharashtra,
Through its Principal Secretary,
Revenue and Forest Department,
Mantralaya, M.S., Mumbai-32
2. The State of Maharashtra,
Through the Secretary,
General Administration Department,
Mantralaya, Mumbai - 32
Maharashtra State.
3. The State of Maharashtra,
Through the Additional Chief Secretary,
Home Department,
Mantralaya, Mumbai-32
Maharashtra State.
- RESPONDENTS
*****
Mrs. Preeti R. Wankhede, Advocate for Petitioner/s
Mr.AS Shinde,AGP for the Respondent Nos. 1 to 3.
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2 WP No.6345/2016
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CORAM : R.M.BORDE &
P.R.BORA,JJ.
DATE : 21
st
MARCH,2017.
ORAL JUDGMENT (PER:- R.M.BORDE,J.)
1) Rule. Rule made returnable forthwith. With
the consent of learned Counsel appearing for the
parties, this petition is taken up for final disposal
at admission stage.
2) The petitioner is praying for issuance of
directions to the respondents to issue an order of
appointment to the petitioner as Tahsildar, Group-A
in pursuance to the selection by Maharashtra Public
Service Commission (for short, MPSC). The petitioner
is also praying for quashment of the order passed by
the Maharashtra Administrative Tribunal, Mumbai,
Bench at Aurangabad (for short, MAT) dated 6.5.2016
in Original Application No.502/2015, refusing the
request of the petitioner/applicant for issuance of
directions, as referred above.
3) The petitioner belongs to scheduled caste
category and is presently serving as Naib Tahsildar
on being selected through MPSC in the year 2010. An
offence under the provisions of Sections 498-A, 497
and other sections of Indian Penal Code along with
Section 4 of The Dowry Prohibition Act, has been
registered against the petitioner. After due
investigation, charge sheet has been presented
against the petitioner and the matter is pending for
trial.
4) The petitioner tendered an application
seeking employment as Tahsildar, Group-A in the year
2012. Selection process was conducted by MPSC and
the petitioner has been declared as successful and
eligible for being appointed to the post of
Tahsildar, Group-A. The petitioner, while tendering
the application seeking employment, has disclosed as
regards registration of the offence against him under
Section 498-A of IPC at the instance of his wife as
well as pendency of the criminal case before the
Judicial Magistrate First Class, Nanded being Case
No.330/2013. After being found successful in the
process conducted by MPSC, petitioner's candidature
was recommended to the Government by MPSC on
13.5.2013. However, since the offence, referred to
above, is registered against the petitioner, the case
was referred to a Committee under the Chairmanship of
Additional Home Secretary, whereupon the Committee
has recommended not to issue a letter of appointment
in favour of the petitioner, which decision was the
subject matter of challenge in Original Application
No.502/2015 presented by the petitioner before the
MAT. The Original Application presented by the
petitioner came to be dismissed by the MAT by order
dated 6.5.2016. The petitioner has impugned the said
decision of the MAT passed in Original Application
and is seeking direction to the Respondent/State to
appoint him during pendency of the trial pending
against him.
5) Learned Counsel appearing for the petitioner
has invited our attention to the Circular dated
26.8.2014 issued by the State Government, which lays
down certain guidelines in respect of issuance of
letter of appointment or dispensing of services of
the employees/candidates functioning under the
Government in the event of initiation of criminal
proceedings against such employees/candidates or in
the event of finding them guilty for commission of
certain offences. The Government Circular further
lays down the procedure in respect of scrutiny of the
cases by a committee constituted under the
Chairmanship of Additional Chief Secretary (Home).
Schedule A and B thereof refer the list of various
offences. In the event of an employee or candidate
seeking employment, is found guilty of the offences
indicated in Schedule/Appendix A and B; or in certain
cases, if a candidate/employee is found to have been
facing criminal prosecution in respect of the charges
specified in the aforesaid Schedules, it is
recommended, either not to appoint such
candidate/employee during pendency of the trial or in
certain cases only in the event of having found such
candidate/employee guilty in respect of such
offences.
6) Admittedly, the petitioner is charged with
commission of offence punishable under Section 498-A
and the offence prescribed under The Dowry
Prohibition Act. Entry at Serial No.20 in Schedule-A
prescribes that, if a candidate is convicted of the
offence relating to cruelty by husband or by
relatives against the wife, such candidate shall not
be considered for appointment. It has not been
prescribed that only on account of pendency of
criminal prosecution alleging cruelty by husband or
by relative, the candidate shall not be offered
employment. Similar is the prescription in respect
of the offence under the Dowry Prohibition Act,1961.
Schedule B of the Circular provides for prohibition
for employing a candidate in the event of recording
of finding of guilt by Criminal court and such
prohibition is not prescribed on registration of
offence on account of pendency of trial. The
guidelines under the Government Circular referred to
above do not appear to have been adhered to in the
instant case by the Committee. The decision of the
committee appears to be without application of mind
to the record of the case. The Committee has not at
all referred to the Circular issued by the Government
prescribing the guidelines. The criminal application
tendered by the petitioner, seeking anticipatory bail
to the High Court, is considered as a pending
criminal prosecution against him. It thus appears
that the matter has been dealt with by the Committee
in a most casual manner.
7) The petitioner has invited our attention to
the decision taken by the Committee in the case of
one Prashant Digraskar. In identical circumstances,
Shri Digraskar, who was facing trial for commission
of offences under Section 406, 409, 420, 467, 468 and
471 of the Indian Penal Code, was not recommended by
the Committee for employment during pendency of the
trial. The Committee, while considering the case of
Mr. Digraskar, though placed reliance on the
Government Circular referred to above, did not
recommend the Government to offer employment to Shri
Digraskar during pendency of the criminal
prosecution. The State Government, however,
overruled the opinion of the Committee and proceeded
to direct issuance of letter of appointment to Shri
Digraskar on correct interpretation of the Circular,
referred to above. In the instant case, however, the
Committee, without referring to the Government
Circular, proceeded to issue adverse recommendation
to the Government against the petitioner, which has
been accepted and the petitioner has not been issued
a letter of appointment. It is expected of the State
Government to follow uniform policy while offering
employment to the candidates recommended by the MPSC.
It does appear that the State Government has adopted
a discriminatory approach and attitude by refusing to
consider the claim of the petitioner for issuance of
the letter of appointment during pendency of criminal
prosecution. It is not the contention of the
respondents that the petitioner has withhold or
suppressed the information as regards pendency of the
criminal prosecution against him while applying for
employment. The petitioner, in fact, has disclosed
in respect of pendency of the criminal case against
him while tendering the application to the MPSC.
8) In view of the facts and circumstances, as
enumerated above, the request of the petitioner
deserves to be accepted. The adverse decision
recorded by Maharashtra Administrative Tribunal
deserves to be quashed and set aside and the same is
accordingly quashed.
9) The respondents are directed to issue a
letter of appointment to the petitioner in pursuance
of the recommendations made by MPSC, appointing him
to the post of Tahsildar, Group-A subject to decision
of pending criminal prosecution against him. The
Respondents shall issue the letter of appointment to
the petitioner, as expeditiously as possible and
preferably within four weeks from today and it is
accordingly directed.
10) Rule is made absolute to the extent as
specified above. No order as to costs.
(P.R.BORA) (R.M.BORDE)
JUDGE JUDGE
bdv/
