Bombay High Court
Sachin Gopal Bhanage vs The State Of Maharashtra And ... on 29 November, 2017
Bench: S.C. Dharmadhikari
PIL.102.2016.Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION No.102 OF 2016
WITH
CIVIL APPLICATION NO. 16304 OF 2016
Sachin s/o. Gopal Bhanage }
Age - 36 years, Occ. - Agriculture }
and Business, R/o. Swami }
Samarth Nagar, A/p. Sakuri, }
Tal. Rahata, Dist. Ahmednagar, }
PAN No. IS-AFOPB8460Q, }
Mobile No. 9822651550 } Petitioner
versus
1. The State of Maharashtra }
Through its Principle Secretary, }
Law & Judiciary Department, }
Mantralaya, Mumbai - 32 }
}
2. The Hon'ble Chief Minister, }
& Minister of Law & Judiciary }
Department, Mantralaya, Mumbai }
}
3. Shri. Sai Baba Sansthan Trust }
(Shirdi), Through its Executive }
Officer, Shri. Sai Baba Sansthan }
Campus, Shirdi, Tal: Rahata, }
District: Ahmednagar }
}
4. Suresh S/o. Kashinath Haware }
Age - 63 years, Occ. - Politician }
}
5. Chandrashekhar S/o. }
Laxmanrao Kadam, }
Age - 51, Occ. Politician }
}
6. Dr. Manisha W/o. }
Shamsundar Kayande, }
Age - 46 years, Occ. Politician }
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7. Sachin S/o. Bhagwat Tambe }
Age - 38 years, Occ. Politician }
}
8. Mohan S/o. Motiram Jaykar, }
Age - 65 years, }
Occ. Legal Profession }
}
9. Pratap S/o. Sakhahari Bhosle }
Age - 61 years, Occ. Politician }
}
10. Rajendra S/o. Rajbali Singh }
Age - 50 years, Occ. Business }
}
11. Bhausaheb S/o. Rajaram }
Wakchaure, Age - 64 years, }
Occ. Politician }
}
12. Bipin S/o. Shankarrao Kolhe }
Age - 53 years, Occ. Politician }
}
13. Ravindra S/o. Gajanan }
Mirlekar, Age - 53 years, }
Occ. Politician. }
}
14. Amol S/o. Gajanan Kirtikar, }
Age - 42 years, Occ. Politician }
}
(3-14 all residents of }
C/o. Executive Officer, }
Shri. Saibaba Sansthan Trust, }
Shirdi, Tal. Rahata, }
Dist. Ahmednagar) }
}
15. Anita W/o. Vijay Jagtap }
Age - 45 years, Occ. Politician, }
Address - President, Shirdi Nagar }
Panchayat, Shirdi, Tal. Rahata, }
Dist. Ahmednagar } Respondents
Mr. S.B. Talekar with Ms. P.S.
Talekar for the petitioners in PIL
No. 102 of 2016 and PIL No.150 of
2016.
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Mr. V.J. Dixit, senior advocate with
A.B. Girase, Government Pleader
and S.B. Yawalkar, AGP, for the
Respondent Nos.1 and 2-State.
Mr. M.R. Bhavar, for Respondent
No. 3.
Mr. Kamal Kandherkar, h/f Mr. S.R.
Choukidar for the Respondent No.4.
Mr. R. H. Dhorde, senior advocate
h/f R. L. Kute and P.S. Dighe for
Respondent Nos.5 and 7.
Mr. V.D. Hon, senior advocate h/f
A.V. Hon for the Respondent Nos.1
and 12.
Mr. K. G. Patil for the Respondent
No.9.
Mr. H.D. Deshmukh for the
Respondent No. 11.
Respondent Nos.6, 8, 13 to 15
served.
WITH
PUBLIC INTEREST LITIGATION NO. 119 OF 2016
Dilip S/o. Anandrao Bornare }
Age - 55 years, Occ. Agriculture }
R/o. Sawant, Tq. Kopargaon, }
Dist. Ahmednagar, }
PAN No. BMJPB0979D } Petitioner
versus
1. The State of Maharashtra }
Through its Principle Secretary, }
Law & Judiciary Department, }
Mantralaya, Mumbai - 32 }
}
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2. Shri. Sai Baba Sansthan Trust }
(Shirdi), Through its Executive }
Officer, Shri. Sai Baba Sansthan }
Campus, Shirdi, Tal: Rahata, }
District: Ahmednagar }
}
3. Suresh S/o. Kashinath Haware }
Age - 63 years, Occ. - Politician }
}
4. Chandrashekhar S/o. }
Laxmanrao Kadam, }
Age - 51, Occ. Politician }
}
5. Dr. Manisha W/o. }
Shamsundar Kayande, }
Age - 46 years, Occ. Politician }
}
6. Sachin S/o. Bhagwat Tambe }
Age - 38 years, Occ. Politician }
}
7. Mohan S/o. Motiram Jaykar, }
Age - 65 years, }
Occ. Politician }
}
8. Pratap S/o. Sakhahari Bhosle }
Age - 61 years, Occ. Politician }
}
9. Rajendra S/o. Rajabali Singh }
Age - 50 years, Occ. Politician }
}
10. Bhausaheb S/o. Rajaram }
Wakchaure, Age - 64 years, }
Occ. Politician }
}
11. Bipin S/o. Shankarrao Kolhe }
Age - 53 years, Occ. Politician }
}
12. Ravindra S/o. Gajanan }
Mirlekar, Age - 53 years, }
Occ. Politician. }
}
13. Amol S/o. Gajanan Kirtikar, }
Age - 42 years, Occ. Politician }
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(Resp. 3-14 all residents of }
C/o. Executive Officer, }
Shri. Saibaba Sansthan Trust, }
Shirdi, Tal. Rahata, }
Dist. Ahmednagar) }
}
14. Anita W/o. Vijay Jagtap }
Age - 45 years, Occ. Politician, }
Address - President, Shirdi Nagar }
Panchayat, Shirdi, Tal. Rahata, }
Dist. Ahmednagar } Respondents
Shri Nitin V. Gaware, Advocate for
Petitioner.
Shri A.B. Girase G.P. with Shri S.B.
Yawalkar, Addl. G.P. for Respondent
State.
Shri N.R. Bhavar Adv. for
Respondent No. 2
Komal Kandharkar Adv. on behalf
of S.R. Choukidar and M.S. Patil for
Respondent No. 3
Shri R.N. Dhorde Sr. Adv. on behalf
of Shri P.S. Dighe Adv. for
Respondent No. 6 Caveator
Shri H.D. Deshmukh Adv. for
Respondent No. 10
Shri V.D. Hon Sr. Adv. on behalf of
Shri A.V. Hon Adv. for Respondent
No. 11.
WITH
PUBLIC INTEREST LITIGATION NO. 124 OF 2016
Surinder Mohan Arora }
Age - 61 years, Occ. Business }
R/o. Plot No. 33/13, A-Wing, }
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Kiran Chandra CHS Limited, }
Manish Nagar, Near Four }
Bungalows, Andheri (W), }
Mumbai - 400 053 } Petitioner
versus
1. The State of Maharashtra }
Through its Principle Secretary, }
Law & Judiciary Department, }
Mantralaya, Mumbai - 32 }
}
2. The Hon'ble Chief Minister, }
& Minister of Law & Judiciary }
Department, Mantralaya, Mumbai }
}
3. Shri. Sai Baba Sansthan Trust }
(Shirdi), Through its Executive }
Officer, Shri. Sai Baba Sansthan }
Campus, Shirdi, Tal: Rahata, }
District: Ahmednagar }
}
4. Suresh S/o. Kashinath Haware }
Age - 63 years, Occ. - Politician }
}
5. Chandrashekhar S/o. }
Laxmanrao Kadam, }
Age - 51, Occ. Politician }
}
6. Dr. Manisha W/o. }
Shamsundar Kayande, }
Age - 46 years, Occ. Politician }
}
7. Sachin S/o. Bhagwat Tambe }
Age - 38 years, Occ. Politician }
}
8. Mohan S/o. Motiram Jaykar, }
Age - 65 years, }
Occ. Legal Profession }
}
9. Pratap S/o. Sakhahari Bhosle }
Age - 61 years, Occ. Politician }
}
10. Rajendra S/o. Rajbali Singh }
Age - 50 years, Occ. Business }
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11. Bhausaheb S/o. Rajaram }
Wakchaure, Age - 64 years, }
Occ. Politician }
}
12. Bipin S/o. Shankarrao Kolhe }
Age - 53 years, Occ. Politician }
}
13. Ravindra S/o. Gajanan }
Mirlekar, Age - 53 years, }
Occ. Politician. }
}
14. Amol S/o. Gajanan Kirtikar, }
Age - 42 years, Occ. Politician }
}
(3-14 all residents of }
C/o. Executive Officer, }
Shri. Saibaba Sansthan Trust, }
Shirdi, Tal. Rahata, }
Dist. Ahmednagar) }
}
15. Anita W/o. Vijay Jagtap }
Age - 45 years, Occ. Politician, }
Address - President, Shirdi Nagar }
Panchayat, Shirdi, Tal. Rahata, }
Dist. Ahmednagar } Respondents
Shri Vinod I Sangvikar Advocate for
Petitioner.
Shri A.B. Girase G.P. with Shri S.B.
Yawalkar, Addl. G.P. for
Respondent State.
Shri N.R. Bhavar Adv. for
Respondent No. 3
Komal Kandharkar Adv. on behalf
of S.R. Choukidar and M.S. Patil for
Respondent No. 4
Shri R.N. Dhorde Sr. Adv. on behalf
of Shri P.S. Dighe Adv. for
Respondent No. 7 Caveator
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Shri H.D. Deshmukh Adv. for
Respondent No. 11.
WITH
PUBLIC INTEREST LITIGATION NO. 150 OF 2016
Sanjay Bhaskarrao Kale }
Age - 53 years, Occ. Social }
Worker and Agril, }
R/o. "Swapna Bhaskar", }
Swami Vivekanand Nagar, }
Kopargaon, Taluka Kopargaon, }
District - Ahmednagar, }
PAN No. AJFPK5656E (Issued by }
I. T. Department of India) }
Mobile No. 9326329533 } Petitioner
versus
1. The State of Maharashtra }
Through its Principle Secretary, }
Law & Judiciary Department, }
Mantralaya, Mumbai - 32 }
}
2. The Hon'ble Chief Minister, }
& Minister of Law & Judiciary }
Department, Mantralaya, Mumbai }
}
3. Shri. Sai Baba Sansthan Trust }
(Shirdi), Through its Executive }
Officer, Shri. Sai Baba Sansthan }
Campus, Shirdi, Tal: Rahata, }
District: Ahmednagar }
}
4. Suresh S/o. Kashinath Haware }
Age - 63 years, Occ. - Politician }
}
5. Chandrashekhar S/o. }
Laxmanrao Kadam, }
Age - 51, Occ. Politician }
}
6. Dr. Manisha W/o. }
Shamsundar Kayande, }
Age - 46 years, Occ. Politician }
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7. Sachin S/o. Bhagwat Tambe }
Age - 38 years, Occ. Politician }
}
8. Mohan S/o. Motiram Jaykar, }
Age - 65 years, }
Occ. Legal Profession }
}
9. Pratap S/o. Sakhahari Bhosle }
Age - 61 years, Occ. Politician }
}
10. Rajendra S/o. Rajbali Singh }
Age - 50 years, Occ. Business }
}
11. Bhausaheb S/o. Rajaram }
Wakchaure, Age - 64 years, }
Occ. Politician }
}
12. Bipin S/o. Shankarrao Kolhe }
Age - 53 years, Occ. Politician }
}
13. Ravindra S/o. Gajanan }
Mirlekar, Age - 53 years, }
Occ. Politician. }
}
14. Amol S/o. Gajanan Kirtikar, }
Age - 42 years, Occ. Politician }
}
(3-14 all residents of }
C/o. Executive Officer, }
Shri. Saibaba Sansthan Trust, }
Shirdi, Tal. Rahata, }
Dist. Ahmednagar) }
}
15. Anita W/o. Vijay Jagtap }
Age - 45 years, Occ. Politician, }
Address - President, Shirdi Nagar }
Panchayat, Shirdi, Tal. Rahata, }
Dist. Ahmednagar } Respondents
Shri S.B. Talekar with Ms. P.S.
Talekar Advocates for Petitioner
Shri A.B. Girase G.P. with Shri S.B.
Yawalkar, Addl. G.P. for State.
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Shri N.R. Bhavar Adv. for
Respondent No. 3.
Komal Kandharkar Adv. on behalf
of S.R. Choukidar and M.S. Patil for
Respondent No. 4.
Shri H.D. Deshmukh Adv. for
Respondent No. 11.
WITH
PUBLIC INTEREST LITIGATION NO. 63 OF 2017
Navneet Pandey S/o. }
Shri. Kashinath Pandey, }
Residing at Flat No. 10/11E, }
Manikaran Apartment, Eastern }
Block, 3B, Rammohan Mullick }
Garden Lane, Beliaghatta, }
Kolkatta - 7000 010 } Petitioner
versus
1. Shri. Sai Baba Sansthan Trust }
(Shirdi), Through its Executive }
Officer, Shri. Sai Baba Sansthan }
Campus, Shirdi, Tal. Rahata, }
District - Ahmednagar, }
Maharashtra }
}
2. Union of India }
Through the Secretary, Ministry }
of Law and Judiciary, }
Mantralaya, Mumbai - 400 032 }
}
3. The State of Maharashtra }
Through its Principle Secretary, }
Ministryof Law and Judiciary }
Mantralaya, Mumbai - 32 }
}
4. Suresh S/o. Kashinath Haware }
Age - 63 years, Occ. - Politician }
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5. Chandrashekhar S/o. }
Laxmanrao Kadam, }
Age - 51, Occ. Politician }
}
6. Dr. Manisha W/o. }
Shamsundar Kayande, }
Age - 46 years, Occ. Politician }
}
7. Sachin S/o. Bhagwat Tambe }
Age - 38 years, Occ. Politician }
}
8. Mohan S/o. Motiram Jaykar, }
Age - 65 years, }
Occ. Legal Profession }
}
9. Pratap S/o. Sakhahari Bhosle }
Age - 61 years, Occ. Politician }
}
10. Rajendra S/o. Rajbali Singh }
Age - 50 years, Occ. Business }
}
11. Bhausaheb S/o. Rajaram }
Wakchaure, Age - 64 years, }
Occ. Politician }
}
12. Bipin S/o. Shankarrao Kolhe }
Age - 53 years, Occ. Politician }
}
13. Ravindra S/o. Gajanan }
Mirlekar, Age - 53 years, }
Occ. Politician. }
}
14. Amol S/o. Gajanan Kirtikar, }
Age - 42 years, Occ. Politician }
}
(3-14 all residents of }
C/o. Executive Officer, }
Shri. Saibaba Sansthan Trust, }
Shirdi, Tal. Rahata, }
Dist. Ahmednagar) }
}
15. Anita W/o. Vijay Jagtap }
Age - 45 years, Occ. Politician, }
Address - President, Shirdi Nagar }
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Panchayat, Shirdi, Tal. Rahata, }
Dist. Ahmednagar } Respondents
Shri R.R. Sancheti Advocate for
Petitioner.
Shri A. B. Girase G. P. with Shri S.
B. Yawalkar, Addl. G.P. for
Respondent State.
CORAM :- S.C. DHARMADHIKARI &
MANGESH S. PATIL, JJ.
Reserved on 13 th July, 2017
Pronounced on 29 th November, 2017
JUDGMENT:- (Per S.C. Dharmadhikari, J.)
1 By these Public Interest Litigations, the petitioners
are praying that the order dated 28th July, 2016, issued by the
Principal Secretary, Law and Judiciary Department, Government
of Maharashtra, appointing respondent Nos.4to 15 in PIL No.102
of 2016 as Members of the Shri Saibaba Sansthan Trust, Shirdi,
Taluka Rahata, District Ahmednagar, be quashed and set aside.
2 The prayer is that this Court should call for the
records in relation to these appointments and after a perusal and
scrutiny thereof by an appropriate writ, order or direction under
Article 226 of the Constitution of India, the order be set aside and
the appointments be quashed.
J.V.Salunke,P.S.
PIL.102.2016.Judgment.doc
3 At the outset, we must express our strong displeasure
at multiple Public Interest Litigations being filed and registered
as such on the same subject matter and issue. It may be that there
are several public spirited citizens and interested allegedly in
efficient, proper and smooth administration of the affairs of Shri
Saibaba Sansthan Trust (Shirdi) but that does not justify the
Registry allowing filing and lodging, so also registration of these
number of PILs. More so, when the issue raised is identical, the
subject matter is the same and even the reliefs prayed are
similar. Each one of them claims to be aggrieved and dissatisfied
with such appointment as are made under the above order of the
State Government. Once there is a PIL and earlier in point of
time, duly registered as such, then, it is the bounden duty of the
Registry to verify and scrutinize the record and with the aid of
modern technology it is not too much to expect from the Registry,
if it informs an interested litigant allegedly moving in public
interest that a PIL is already registered on the same subject and
is pending. If the subsequent applicant still insists on his
application being treated as a PIL, the Registry can, in such
circumstances, place the matter before the competent Court and
seek its directions. It is then for the Court to adopt an
appropriate course so that multiplicity of PILS on the same
subject matter is avoided and equally repetitive arguments.
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PIL.102.2016.Judgment.doc
When one Public Interest Litigation is registered any public
spirited citizen can pray to the Court orally or by an appropriate
application that he may be also allowed to participate and be
heard when the earlier PIL is taken up. It is then for the Court to
adopt an appropriate course consistent with the Rules framed in
relation to filing, lodging and consideration of PILs by the Bombay
High Court, Appellate Side.
4 In one of the judgment and order delivered recently by
us in the case of Sunil s/o. Supadu Mahajan and Anr. vs. Hon'ble
Minister of State for Urban Development Department and Ors. 1,
decided on 14th July, 2017, the tendency of lodging and filing
successive PILs on the same subject matter has been commented
upon and even the Registry's practice is deprecated. Even the
tendency to register them indiscriminately has been deprecated.
We quote the following observations from that judgment and
order :-
17] Before proceeding further we find a practice and
prevailing in this Court to be little peculiar. PIL No. 102 of
2015 was filed in this Court on 11/10/2015. PIL
No.119/2015 is filed in this Court on 24/26/10/2015. It is
strange that the Registry was unaware of the pendency of
one PIL on the same subject and yet proceeded to register
the second PIL.
18] We see no reason to register such multiple PILs. PIL
is an exceptional litigation. It is not an handle or a tool to
settle private disputes or matters of purely private nature
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in the garb of public interest. There are directions issued
by the Hon'ble Supreme Court to all the High Courts that
they must ensure that only genuine PILs are filed and
taken up. One of the directions is that multiple PILs would
defeat the very object and purpose of PIL. It is strange
therefore that though the rules have been notified the
registry of this bench has not taken any steps. We do not
see why when one PIL is filed by a resident, person,
individual that another and from the same city or town is
able to approach this Court by independent proceedings.
None is preventing this tendency and practice. We find
that this practice continues by allowing people to intervene
in PILs. We do not think if one resident or citizen and
claiming to be public spirited citizen brings to the notice of
this Court inaction of the Statutory Authorities or the
State or some deliberate and intentional act, on their part,
then, the Court will proceed to register it as PIL and treat it
as a truly representative litigation. That one individual or
one PIL petitioner in the earlier PIL would represent the
cause of all the residents is the presumption on which this
Court would proceed. There is therefore, no warrant to
register subsequent PIL or allow repeated interventions for
that would introduce an unhealthy practice of other
litigants introducing purely private causes or settling
political or private disputes. Nothing should be done which
would defeat the salutary and laudable object sought to be
achieved by a PIL. A adversary of the PIL petitioner would
enter the fray or jump into the arena and the purpose of
the litigation, namely, in public interest, would be
frustrated. We have found a intervenor being introduced to
malign the PIL petitioner by attacking his character. This
could be a deliberate ploy by those whose actions are under
scrutiny of this Court. We hope this much is enough and
hereafter Registries of this Court will ensure that multiple
PILs are not registered.
19] Be that as it may. PIL No. 119/2015 is presented by a
person claiming to be agriculturist but resident of Jalgaon
city. He has impleaded as party respondents a Minister of
State, the Deputy Secretary in the Urban Development
Department Jalgaon Municipal Corporation and
Mr.Eknathrao Khasde the then Minister for
revenue/Guardian Minister.
20] The petitioner in P.I.L. No. 119/2015 narrates the very
same facts. The petitioner also reiterates the very same
history of the litigation by the shop keepers against whom
eviction orders have been passed but unsuccessfully
resisted and challenged by them. The very Resolution
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No.135 dated 20/10/2014 is referred by this petitioner.
The very act of sealing the premises and the subsequent
steps are set out in this PIL, and then it is stated that the
fourth and fifth respondent have tried to influence the
Government in passing favourable orders but which would
be detrimental to the interest of the Municipal
Corporation.
5 We hope and trust that hereafter the Registry will
take steps and in accordance with the aforesaid suggestions and,
if necessary and required, make changes and amendments to the
existing Rules.
FACTS IN PIL NO. 102 of 2016:
6 In the present petition, the petitioner claims that he is
a citizen of India and a permanent resident of Sakori, District
Ahmednagar. He claims that he is an ardent devotee, devout
follower having unflinching faith in Shri Saibaba, Shirdi. He does
not have any criminal antecedents. He has, in the petition,
claimed that the petition is filed for better management of the
Sansthan / Trust and by that sub-serve larger public interest. The
petitioner states that he made necessary enquiries through
research and by obtaining information and documents under
Right to Information Act, 2005. The petitioner claims that he has
incurred all the costs in relation to filing of this PIL.
J.V.Salunke,P.S.
PIL.102.2016.Judgment.doc
7 In paragraph 4(i) to (iv) of the petition, the petitioner
states thus :
"(i) The Shri Saibaba Sansthan Trust Shirdi is a
statutory body and therefore amenable to the writ
jurisdiction under Article 226 of the Constitution of India.
(ii) Shri Saibaba Sansthan Trust was a trust duly
registered under the Bombay Public Trust Act, 1950.
However, the Government of Maharashtra initially
promulgated an Ordinance and thereafter enacted a law so
as to provide for better management, administration,
governance and control of the trust and to enable it to
undertake wider welfare activities for the public.
(iii) Shri Saibaba Sansthan Trust (Shirdi) Act, 2004
(Maharashtra Act XIV of 2004) received assent of the
Governor of Maharashtra on 23rd August 2004.
(iv) The Managing Committee of "The Shri Saibaba Trust
(Shirdi)" (hereinafter referred to as "the Committee")
came to be constituted on 23rd August 2004. The Principal
Secretary and Senior Legal Advisor to the Government,
appointed 16 members for a period of three years, vide
notification dated 23rd August, 2004, a copy of which is
annexed herewith and marked as EXHIBIT-B."
8 After alleging that in the past, most of the members
were appointed on political considerations; they were politicians
belonging to the ruling party in Ahmednagar District, it is further
alleged that they misused the power. They were releasing funds
of the Sansthan for development of their constituencies or Zilla
Parishad Circles or Panchayat Blocks. They were using the
vehicles and other facilities for their personal benefit and to
influence and attract the voters in the constituency. The
petitioner submits that many projects are either implemented or
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PIL.102.2016.Judgment.doc
initiated with the funds of the Shirdi Sansthan, but such members
serve their own interest. The result was these projects caused
colossal losses to the Sansthan. The allegations are summarized
by alleging that the acts of omission and commission of such
members resulted in the interest of the Sansthan /Trust being
adversely affected. There were representations made pointing
out these illegalities, but no action was taken.
9 Thereafter, in the PIL petition it is alleged that one
Suresh Galande Patil and Raju Uttam Shelke filed a Writ Petition
being Writ Petition No.4640 of 2007, seeking direction to the
State to frame Rules under section 25 of the Act, to prescribe
guidelines for the purpose of selection / appointment of the
members of the committee. These petitioners sought removal of
the members of the Managing Committee for misconduct,
misbehaviour and negligence in discharging duties. They sought
further directions to register offences against the concerned
persons of criminal misappropriation, forgery and criminal
breach of trust. The petitioners also sought disciplinary action
against the Chief Executive Officer.
10 This petition was placed before the court and on one
occasion this Court observed that it would be appropriate for the
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State to form or formulate Rules which would facilitate effective
governance and functioning of the Sansthan. On 30 th April, 2010,
an order was passed in Civil Application No. 2196 of 2009 in the
above Writ Petition and after reproducing that order, the petition
proceeds to allege that one more petition being PIL No.18 of 2011
was filed by one Rajendra Bhausaheb Gondkar and others seeking
a writ of quo warranto against the members of the committee and
at the same time challenging a resolution dated 23 rd August,
2004, appointing some persons as members of the committee.
11 However, this Court, on 31st March, 2012, passed an
order constituting a Management Committee of the Trust by the
State Government, failing which, a committee consisting of the
Principal District Judge, Ahmednagar, the Collector, District
Ahmednagar and the Chief Executive Officer of the Trust shall
take over and supervise, monitor and look after the affairs of the
Trust. This direction was issued because the term of the earlier
committee had expired and the Rules, as mandated under section
25 of the Act of 2004, were not framed.
12 This Court also in that order in the above PIL made
certain observations and with regard to the framing of the Rules.
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13 It is thereafter on 27 th March, 2012, the then
Government, by way of a Notification, constituted a committee in
the absence of any Rules. This Notification issued on 27 th March,
2012, was challenged in PIL No. 27 of 2012 and Civil Application
No. 3546 of 2012 as well as by way of PIL 33 of 2012 and an
interim stay was granted by this Court. The petitioner, relying on
all these orders and directions, urges that the impugned
Notification is nothing, but a reproduction of the prior Notification
dated 27th March, 2012, with regard to which this Court made
detailed observations. It is alleged that barring the change in the
name of political parties, even the present Government has made
appointments on political considerations and those close to the
Bharatiya Janata Party - Shiv Sena have obtained appointments.
14 It is alleged that the present Government is following
the footsteps of the earlier political party in power in distributing
largesse to its loyalists. It is alleged that the Centenary
celebrations of the death anniversary of Shri Saibaba are to
commence shortly and for which Rs.3,100 crores are to be
provided and earmarked. This huge sum, therefore, attracts all
those seeking appointments and now to seize that opportunity as
well, the appointments are sought and are made.
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15 It is, therefore, alleged that despite the Act being
enacted in 2004, the Rules were never framed and published in
the official gazette and the earlier committee constituted was
allowed to continue without the support of the Rules for nearly
four years after the completion of its term.
16 It is in these circumstances that making serious
allegations, the petition proceeds to state that the present
appointments have not been made in accordance with the scheme
sanctioned by the City Civil Court at Bombay in Suit No. 3457 of
1960 for Shri Saibaba Sansthan, Shirdi and which was approved
by this Court in First Appeal No.320 of 1983. The petition, from
paragraph xxxiii proceeds to point out as to how the scheme was
framed and its salient features are referred.
17 Then, a serious allegation is made that there is no
criterion to select or appoint a person as a member of the
committee prescribed in the Act. That aspect will have to be
taken care of by the Rules. However, in the absence of the Rules,
appointment of members to the Board can be made at the sweet
will, whims and fancies of those in power. As a result, political
considerations, personal relations and friendship have weighed
while making appointments of the members of the committee. It
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is alleged that not a single member enjoys good reputation and
whatever little guidance is provided by section 5(2) of the Act,
that as well has not been followed. In making appointments
representation is not given to the religious minorities, including
persons professing Islam nor is there one member of the
Scheduled Caste / Scheduled Tribe or weaker sections of the
society. This is apart from the Rules being flouted by not taking
care of the educational qualifications, specialized knowledge,
professional achievements and by not appointing experts,
particularly in the field of Business Management, Public
Administration, Public Health or Rural Development. It is then
demonstrated as to how broad-based representation is lacking in
the present appointments. The respect for Saibaba is then
highlighted and it is claimed that it is only because of the
intervention by this Court that the allegations of mal-
administration are being looked into. It is this Court which has
been monitoring and supervising the administration of the Shirdi
Trust for last nearly four years.
18 It is in these circumstances that there are specific
allegations that the Government did not verify either the
credentials or antecedents of the appointees. Some members with
criminal background are appointed. The power to appoint the
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committee is thoroughly misused and abused. There is no
justification on record for the appointments. Once there is no
criteria and no defined guidelines, then, the power to appoint is
exercised arbitrarily. The discrimination is writ large and the
appointments are vitiated by mala fides as well. Thus, there is a
gross violation of the mandate of Article 14 of the Constitution of
India.
19 It is then claimed that a Notification published on the
midnight on 28th July, 2016, was made available only on Friday
29th July, 2016 and which enabled the committee to immediately
take charge. Unless, the ad-hoc body constituted by this Court
demits office, it was not possible for the Management Committee
formed by the Government to take charge and without prior
permission of this Court. Moreso, when the constitution of the
earlier Management Committee had been stayed by an interim
order of this Court and the fate of that committee is still
undecided.
20 It is claimed that initially there was a dispute and
subsequently there were negotiations and thereafter a deal
between the Shiv Sena and Bharatiya Janata Party and only
loyalists of both were appointed as committee members. It is this
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power struggle which led to the hasty step of issuing the
impugned Notification.
21 The petitioner has made allegations against each of
the appointees and who are respondents to this petition.
22 The petitioner has, in paragraph 1x at page 39 set out
the task and magnitude of the duties to be performed by the
statutory Management Committee and that would be evident by
the following features of the temple :-
"i) The strength of daily visiting devotees is crossing
more than 1 lac;
ii) On Sundays and Thursdays, the figure of visitors goes
to more than five lac devotees;
iii) The yearly turnover of Saibaba Sansthan Trust is
near about Rs.700 Crores;
iv) The daily collection of donation is more than Rs.2
Crores;
v) Apart from money, silver, gold, foreign currencies,
precious jewellery is dropped and donated by the devotees.
vi) There are around 6,000 employees working in
various departments;
vii) Regular construction activities of guest houses,
hospitals and gardens;
viii) More than 2,500 rooms, 100 halls constructed by
Sansthan are available to accommodate devotees.
ix) Moreover, the year 2017-18 being the centenary year
celebrations of the Shri Sai Baba's death anniversary, the
estimated expenses are of Rs.3000 Crores. Such being the
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challenge, there is every opportunity to indulge in corrupt
practices and misuse the funds, which would be a great
loss to the public interest, let alone the faith of the
devotees."
23 Thereafter, it is claimed that the Notification if not
quashed, it would cause irreparable harm and injury in the event
the Committee set up under the subject Notification is permitted
to manage the affairs of the Trust.
24 This petition challenging the appointments of
respondent Nos. 4 to 15 as members of the committee of the Shri
Saibaba Sansthan Trust also alleges that the appointments are
contrary to the decision of this Court in PIL No. 18 of 2011.
25 Thereafter, the petition has been amended and we
shall briefly make a reference to the amended Memo.
26 The amended Memo refers to the rules upto paragraph
1(xii) and after page 40 of the petition, page 40-A has been added
and first of all in the sub-paragraphs a reference is made to the
rules framed by the Government under section 25 of the Act with
regard to the constitution of the Managing Committee of the
Shirdi Trust. The copy is annexed at pages 128 to 135 of the
paper-book (Annexure SA-1). The Rules are then criticized for
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being vague as they do not set out the precise procedure for
selection or the criteria to be adopted nor do they incorporate
provisions ensuring transparency. There is thus no check on the
unbridled power of making appointments. The rules, therefore,
do not take care of a situation where the power to appoint is
exercised arbitrarily.
27 Then the rules are challenged on the ground that they
are ultra vires section 25 in the sense the rules have not been
made by a procedure which is styled as mandatory. In the sense
they have to be also placed before the House of the State
Legislature.
28 It is then stated that the Managing Committee has
been constituted on 28th July, 2016, but even before taking over
the charge, some members thereof visited the temple / trust
premises and started giving directions to the employees. Even
when the ad-hoc committee had not been discharged formally nor
the charge is taken over by the newly constituted committee in
accordance with law, still, these developments have taken place.
The allegations of this type and similar in nature are then made
which, according to the petitioner, would corroborate his initial
plea that the appointments have been made purely on political
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considerations. Those with political affiliations have been
rewarded and even those with criminal antecedents have found a
place in the Managing Committee. That is how the 28 th July,
2016, (impugned Notification) is challenged.
29 Then, we have the allegations against respondent
Nos.4 to 15 set out seriatim. These allegations are made at pages
40-E to 40-H.
30 It is alleged that the material qua each appointee
would reveal as to how their appointments are bad. For instance,
the appointment of the seventh respondent can never be justified
as a person belonging to socially and economically weaker section
of the society. It is stated that he is a person belonging to higher
caste,very well-off economically and has several properties.
31 The language of rule 3(1) read with sub-rule (2) is
then highlighted; similarly rule 3(3); and then it is stated that the
scheme relating to the temple and these rules do not go hand in
hand, but conflict with each other. Further, the appointments are
not made in accordance with the mandate of rule 6 of the Rules of
2013.
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32 On such allegations, it is alleged that the interest of
the trust / Sansthan will not be safe in the hands of respondent
Nos.5 to 15.
33 Further to these allegations in the petition, there is a
short affidavit of the petitioner, placing on record certain
subsequent events. Some of these events and allegations with
regard thereto are incorporated as amendments to the petition.
34 The petitioner also filed an affidavit seeking to place
on record factual materials to substantiate the allegations made
by him against the respondent No.7. This affidavit is dated 9 th
August, 2016. An affidavit-in-reply is filed by the respondent
No.7. In that affidavit, he alleges that the petitioner is set up by a
local influential politician. The petitioner makes incorrect
statements in the petition. The petition itself is filed mala fide and
for political reasons. It is denied that the respondent No.7 does
not fulfill the criteria for appointment as a member. Rather, it is
claimed that respondent No.7 is an active social worker,
connected with several trusts and mandals. He is taking active
part in the improvement of the trust, namely, Shirdi Saibaba
Trust and Sansthan and Shirdi town. While it is true that
respondent No.7 has taken part in some agitation, but that was
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long time back, namely, 2001 onwards and thereafter in 2004.
There are certain false cases initiated against him and purely for
political reasons and at the instance of a local influential
politician. It is stated that on 30 th July, 2013, the seventh
respondent is acquitted in the sessions case to which a reference
is made. The statement in the affidavit-in-reply is that this was a
case of false implication. Then, with regard to C.R. No.130 of
2009, C.R. No.20 of 2011, C.R. No.21 of 2011, C.R. No.109 of 2014
and C.R. No. 32 of 20014, the explanation is provided at pages
278 and 279 of the paper-book in paragraph 5 sub-paragraphs (a
to (f) and paragraph 6.
35 It is stated that the cases registered are not of offences
involving moral turpitude. The said cases are deliberately filed by
the earlier Congress regime which was in power. The seventh
respondent was raising the issue of corruption and social causes
and purely to harass him, such cases are filed. Out of such cases,
some are withdrawn. The only cases pending are C.R. No.32 of
2004, C.R. No. 21 of 2013 and C.R. No.109 of 2014. Then, in
paragraph 7, a reference is made to the private complaint filed by
Dr. Sham Kuver (Criminal Miscellaneous Application No.224 of
2016) then working in the Shirdi Saibaba Sansthan Hospital. It is
alleged that he was misusing his position, harassing the patients
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and, therefore, an agitation was undertaken by various persons,
including the seventh respondent. The said doctor had filed a
case of defamation alleging that he has been defamed by this
agitation. Thus, this cannot be said to be a genuine complaint or
case for this doctor is facing various complaints from patients,
fellow doctors, employees of the hospital and others. His
misdeeds are then highlighted. Thus, all the cases are cooked-up
by the police authorities. None of them can be said to be alleging
offences involving moral turpitude.
36 Then, the educational qualifications are highlighted
together with other achievements.
37 An allegation is made in paragraph 13 that the
petitioner has approached this Court with dishonest and mala
fide intent. It is at the behest of an influential politician and
equally to protect the petitioner's own interest. The present
petitioner was awarded a contract of fixing CCTV cameras in the
recent Kumbh Mela and the contract which is granted by the Shri
Saibaba Sansthan is in the name of Sark Enterprises, run by him.
In execution of the work, the petitioner has taken Rs.2,00,000/-
from one devotee under the pretext that he will fix the camera for
Shri Saibaba Sansthan. There is a written complaint against the
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petitioner. There was an agitation even on this point and by the
seventh respondent against the petitioner. Thus, the petitioner is
alleged to have committed several irregularities in the contracts
which were awarded to him by the Shri Saibaba Sansthan. It is
claimed that the seventh respondent has taken over charge as
trustee. The first meeting was held on 7th August, 2016. The
second meeting was also held on 16th August, 2016 and the
business has already been transacted.
38 Then, there is an affidavit-in-reply of the other
respondents, namely, respondent No.11 from pages 260 to 365,
respondent No.5 from pages 366 to 389, respondent No.10 from
pages 390 to 403, respondent No.9 from pages 403 to 404 and
respondent No.12 from pages 415 to 424.
39 However, we would make a reference to the
statements in these affidavits in addition to the denials therein at
appropriate places and while highlighting the submissions of their
advocates. For the present, we refer to the reply of respondent
Nos.1 and 2 and that is to be found at pages 425 to 475 of the
paper-book. That is an affidavit by Shripad Devidasrao
Digraskar, Joint Secretary to Government, Law and Judiciary
Department. This is an affidavit for and on behalf of respondent
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PIL.102.2016.Judgment.doc
Nos.1 and 2. The maintainability of the PIL is an issue raised and
in that, the allegations made by respondent No.7 about the alleged
private interests of the petitioner are reiterated. It is alleged that
material information is suppressed. It is then alleged that not a
single representation or letter is annexed to the PIL, but a false
statement is made that several representations were made from
time to time to various authorities, including the Department of
Law & Judiciary pointing out the irregularities of the committee
members and particularly of the Managing Committee causing
losses to the Sansthan.
40 From paragraphs Nos.3 to 12, this is what is stated :-
"3. I say and submit that the administration of the Public
Trust of Shree Sai Baba Sansthan registered under the
Bombay Public Trust Act, 1950, under the name"Shree
Shirdi Sansthan of Shree Sai Baba" at Shirdi, District
Ahmednagar popularly known as Shree Shirdi Sai Baba
Sansthan, Trust at Shirdi is vested in the board of
management under the Scheme framed by the City Civil
Court, Bombay, in Charity Suit No. 3457/1960 vide order
dated 18/10/1982, confirmed by the High Court of
Judicature of Bombay in First Appeal No. 320/1983
decided on 23/07/1984.
4. I say and submit that, the Government of
Maharashtra considered it expedient that, the
Development and Management of this important and
popular trust should not be hampered or in way suffered
by avoidable litigation and that, there should be a separate
law to reconstitute the said Trust and to provide for the
efficient management of the same by the committee
directly under the supervision and control of the State
Government to enable the Trust to carry out its charitable
activities more effectively and efficiently and to be able to
give more facilities for its devotees and to undertake wider
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welfare activities for the general public. Therefore, the
State Government enacted Shree Sai Baba Sansthan Trust
(Shirdi) Act, 2004.
5. I say and submit that, Section 5 of the said Act
specifies the constitution of committee of management of
Santhan's Trust. Sub-section (1) provides that The Shree
Sai Baba Sansthan Management Committee shall be the
committee constituted by the State Government as
provided in Sub-section 2 which provides that the State
Government shall by notification in the official gazette
appoint the Chairman, Vice Chairman and not more than
15 other members to constitute the committee out of
which,not less than one member shall be a woman and one
member shall be from socially and economically weaker
sections. Out of total number of members, not less than 8
members including Vice Chairman shall be persons having
educational background with professional or specialized
knowledge, qualification and practical experience in one or
more of the field, such as law, business management,
public administration, engineering, architecture, public
health, medicine or rural development. The president of
the Shirdi Nagar Panchayat shall be the ex-officio member
of the committee.
6. I say and submit that, Section 8 of the said Act
prescribes conditions for being a member of the said
committee. The said provision specifically states that, a
person to be appointed as a member of the committee shall
be a) the permanent resident of the State of Maharashtra
and b) a devotee of Shree Sai Baba and shall prior to his
appointment as a member make such declaration in the
prescribed from. The form as mentioned in the provision is
given in the rules itself.
7. I say and submit that, Section 9 of the said Act
provides the disqualification for membership. A person
shall be disqualified for appointment as or for being, a
member, if he - (a) is a minor; (b) is of unsound mind, and
is so declared by a Competent Court; (c) is an un-
discharged insolvent; (d) has directly or indirectly any
interest in a lease or any other transaction relating to the
immovable property of the Sansthan Trust; (e) save as
provided in sub-section (1) of Section 6, is a paid servant of
the committee or has any share or interest directly or
indirectly in any contract for the supply of the goods to or
for execution of any work, or the performance of any
service, undertaken by the committee in respect of the
Sansthan Trust; (f) is guilty of misconduct or who has been
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charge-sheeted for the offence involving moral turpitude
or is otherwise found to be unfit.
8. I say and submit that, Section 11 of the Act
regulates the meeting of committee and Rules of procedure
and thereby specify that the quorum for the committee
shall be 8.
9. I say and submit that, Section 12 of the said Act
provides that, no act or proceedings of the committee shall
be invalid by reason only of the existence of any vacancy
amongst its members or any defect in its constitution or in
appointment of any member. Therefore, the said provision
of the Act makes it clear that, only on the ground of
existence of any vacancy or any defect in its constitution
or in appointment of any member, the act or proceedings of
the committee shall not be declared as invalid. The copy of
the Shree Saibaba Sansthan Trust (Shirdi) Act, 2004, is
annexed herewith and marked as EXHIBIT-"R1".
10. I say and submit that, Section 25 of the Act empowers
the State Government to make rules under this Act for
carrying out the purpose of this Act. The State
Government has framed the rules named as Shree Saibaba
Sansthan Trust (Shirdi) (Appointment of Members of
Management Committee and Forms of Declarations) Rules,
2013 by exercising the powers conferred by clause (b) of
section 8, sub-section (2) of section 14 and sub-section (1)
and (2) of the proviso to sub-section (3) of section 25 of the
Shree Saibaba Sansthan Trust (Shirdi) Act, 2004. The
said Rules were published in the official gazette on
24/01/2013. The copy of the said Rules published on
24/01/2013 is annexed herewith and marked as
EXHIBIT-"R2".
11. I say and submit that, bare perusal of the Shree
Saibaba Sansthan Trust (Shirdi) Act, 2004 and Shree
Saibaba Sansthan Trust (Shirdi) (Appointment of
Members of Management Committee and Forms of
Declarations) Rules, 2013, envisage the complete
procedure for appointment of members, qualifications and
disqualification etc.. The appointments of the members of
the Shree Saibaba Sansthan Management Committee
constituted under notification dated 28.07.2016 are
strictly made as per the provisions of section 5 of the Act
as well as Shree Sai Baba Sansthan Trust (Shirdi)
(Appointment of Members of the Management Committee
and Forms of Declaration) Rules, 2013. Hence the
allegations of the petitioners that the appointments of
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members are contrary to the provisions of the Act and rule
is baseless.
12. I say and submit that, the petitioner herein has made
baseless allegations in respect of validity of Rules of2013, I
say and submit that similar allegations and objections were
raised in PIL No.27/2012 and other companion matters;
wherein, this Hon'ble High Court considering the fact of
framing of rules and its publication in official gazette not
considered the same and granted liberty to raise such
challenge in independent proceeding. Till today, the said
rules are neither challenged by the said petitioners nor by
the present petitioner in the present petition. As such, in
absence of challenge to the said rules, the petitioner cannot
make baseless comments and objections on the validity of
rules itself. Therefore, the constitutional validity of the
said rules can not be questioned unless and until it is
challenged."
41 Then from paragraph 13 it is stated that there is an
allegation made that stay order was passed by this Court against
constitution of the committee and as such, the act of the State is
contrary to the orders passed by this court. This allegation is
denied. It is stated that PIL No.27 of 2012 and other companion
matters were disposed off on 2nd May, 2013, permitting the State
Government to constitute a new Managing Committee for
governing the affairs of Shri Saibaba Sansthan. This Court made it
clear that the ad-hoc committee appointed would cease to operate
from the date of coming into existence of the new committee
appointed by the State Government. It is in view of this liberty
from this Court that the State Government constituted the new
committee. Hence no orders of this Court are violated.
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42 Then, reference is made to rule 6 and it is submitted
that the appointment of members shall be made only after the
person to be appointed as a member submits his declaration in
form (a) to these rules and the State Government receives a
police report or a police verification certifying that such person
has not been convicted or charge-sheeted by a court of competent
jurisdiction for an offence involving moral turpitude or is
otherwise found to be unfit. Then, a reference is made to section
5, section 8 and section 9 of the Act read with the procedure for
appointment as enumerated in rule 6 and it is stated that with
strict adherence to these provisions the appointments have been
made. Thus, the State Government has taken due care and only
after receiving the police report and by examining that any of
them has been convicted or charge-sheeted by a court of
competent jurisdiction for an offence involving moral turpitude or
not that the appointments are made. Hence, there is no substance
in the challenge to the Government Notification. In paragraphs
18 and 19 at pages 438 and 439, this is what is alleged :
"18. I say and submit that the allegation of petitioner that
this notification has been issued in the face of huge funds is
baseless and illogical as the Hon'ble High Court has
directed the Assistant Government Pleader on 12.01.2016
to obtain instructions as regards the time frame within
which scrutiny committee and managing committee shall
be constituted. According to the directions of the Hon'ble
High Court, the State Government has submitted vide
letter dated 14.01.2016 that the proposal of constitution of
Shree Saibaba Sansthan Management Committee is under
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the consideration of State Government and the same will
be constituted within three months, thereafter the
scrutiny committee will be appointed. The Hon'ble High
Court has recorded the statement made on behalf of State
Government in its order dated 15.01.2016 in Civil
Application No. 16086 of 2015. I say and submit that on
10.06.2016 in one of the matter, the Hon'ble High Court
has expressed that the Hon'ble High Court will issue a suo-
moto contempt against the State if the said committee is
not constituted immediately. In the above backdrop, the
State Government has constituted the Shree Saibaba
Management Committee in exercise of the powers given to
the State Government by the Act 2004.
19. I say and submit that that the contention of the
petitioner that from information gathered by the petitioner
from several politicians, Government officials and
journalist that the appointment order was signed at
about11p.m. on 28th July 2016 is completely false and
baseless, as the official copy of notification of the newly
constituted management committee was not sent to the
Government press for publication in the Official Gazette in
the afternoon on 28th July 2016."
43 Finally, in paragraph 22, a reference is made to
Government Resolution dated 22nd October, 2013, constituting an
Action Plan Committee under the Chairmanship of the Hon'ble the
Chief Minister in order to provide all infrastructural facilities to
the devotees who will visit Shirdi in the centenary celebrations of
the samadhi of Shri Saibaba. The decisions are taken in the
meetings of this committee. Therefore, none of the allegations
and particularly of seeking to pocket huge funds of the trust have
any basis. The Shri Saibaba Sansthan Management Committee
was constituted by the State Government bearing in mind the
future projects. There are no mal-practices because the State
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Government is ensuring there are high and competent officials;
that precious funds are actually spent for the preparation for the
centenary year. There are no mal practices and no corruption as
far as the administration of the affairs and the trust funds. Hence
it is stated in this affidavit of 19th September, 2016, that the
petition be dismissed.
44 The petitioner has filed a rejoinder to this affidavit
and while denying all the allegations of any personal interest and
suppression, it is stated that the work undertaken by the
petitioner of provision of closed circuit television has absolutely
no nexus with the petitioner's role as a public spirited citizen and
the filing of this PIL on that basis. That contract or work was
awarded by the Special District Magistrate and Deputy
Superintendent of Police during implementation of the project of
installation of security measures. That is prior to the
commencement of the Kumbh Mela at Shirdi. The entire work
undertaken by the Sansthan was at the behest of the ad-hoc
committee constituted as per the order of this Court headed by
the Principal District Judge, Ahmednagar. This committee was
supervising all the financial decisions. There is nothing illegal
about the contract nor are there any allegations of corruption or
irregularity in the process. The complaint, copy of which is
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annexed to the affidavit, is made not against the petitioner, but
against the working of the committee. There is nothing in the
complaint, much less an allegation, and on the basis of which any
inquiries could be made.
45 Hence it is denied that there is any personal interest
nor is it correct that there are political movites in instituting the
present PIL.
46 Then, the affidavit-in-rejoinder proceeds to deal with
other allegations.
47 It is stated that the rules have been challenged in Writ
Petition No. 4143 of 2013 and that writ petition has been
connected with the present petition for common hearing. The
petitioner was duty bound to bring all the relevant facts before
this court. That is why all the facts with regard to the framing of
the rules in contravention of the legal requirements have been
placed before this court. It is claimed that the respondents have
not given any explanation or justification for not placing the rules
before both houses of the legislature, despite being framed way
back on 23rd January, 2013, in contravention of section 25 of the
Act of 2004.
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48 It is claimed that the whole attempt and to hastily
frame the rules to constitute the Management Committee is to
grab moneys from the centenary celebration funds granted for
the year 2017-18. It is alleged that the respondents have not
constituted the Scrutiny Committee, which was directed to be
done by this court. It is submitted that there are several
Government Resolutions issued constituting an Action Plan
Committee and a sub-Committee. This is done hurriedly so that
all the preparations for the centenary celebrations are made
without a proper framework.
49 Then, it is alleged that the respondent has not
answered the petitioner's grievances with regard to the rules. It
is claimed that the rules are extremely vague. They do not set out
the procedure for selection of suitable candidates for nomination.
Further, the requirement of professional background and
qualification is specified only for eight members, whereas, the
rest 7 do not require a qualification other than membership of the
Bhakta Mandal. None of the members of the newly constituted
Management Committee are members of the Bhakta Mandal any
time before July, 2016. Therefore, the appointments have been
made without any definite criteria or qualification.
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50 The constitution of the Committee, according to the
rules, requires at least one member shall be appointed from the
category of women and socially and economically weaker section
and eight from persons possessing professional or specialised
knowledge within the meaning of section 5(2) and up to seven
members from general category. However, the mandatory 10
members have not been appointed from particular categories and
no application of mind can be seen in appointing conveniently
picked persons from specific categories. Then, it is alleged that
there is no compliance with the requirement of obtaining a
verification or police report prior to appointing the respondents
as members of the Management Committee. In that behalf, Rule
6(ii) of the Rules of 2013 has been referred. It is claimed that
verification or police report in respect of the appointments made
to the Management Committee was done only in case of four
members and not the other eight. On this ground alone, the order
dated 28th July, 2016 constituting the Management Committee
deserves to be quashed. Moreover, the reports of the police
verification are not placed on record. There is nothing to show
that the character verification of all the members appointed on
the Management Committee of the Sansthan has been carried out.
In these circumstances, it is claimed that if the rules themselves
are vague, do not lay down any criteria, then, the same are also
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unsustainable in law. The qualifications prescribed in respect of
'C' category that these eight persons shall have educational
background with professional or specialised knowledge or work
experience in one or more fields have nothing to do with the
criteria fixed for the purpose of selection. There could be lakhs of
candidates having educational background with professional or
specialised knowledge or practical experience in one or more of
the fields prescribed in Rule 3(2) of the Rules. Therefore, unless
a Committee is constituted of experts, who will invite interested
persons or have otherwise knowledge regarding the contribution
of several persons in the social causes, the selection cannot be
foolproof. The selection cannot be left to the sweet will, whims
and fancies of the Government and particularly the Minister in-
charge of Law and Judiciary. The selection of the candidate must
be transparent rather than shrouded in secrecy. Thus, the Rules
confer unbridled power on the Government to pick and choose the
candidates of its choice. The selection made in this case is
without prescribing any criteria. Hence, it suffers from
arbitrariness. Then, in para 21 of the rejoinder, the factors with
regard to persons belonging to category 'D' have been set out and
it is submitted that it is not just the membership of Bhakt Mandal
which will suffice but possession of Bachelors degree, residence in
Shirdi or Ahmednagar district, contribution made to social or
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educational causes and or social and educational development
and the person being a member of the Parliament or Assembly
Constituency or member of State legislature representing Shirdi.
None of these factors are applied to the appointment of
respondent nos. 4, 11, 13 and 14. Moreover, out of five members
from the general category, three are from Mumbai. The
Chairman of the managing committee Shri. Suresh Havare is
builder and is financing the Bhartiya Janta party for the purpose
of elections. Respondent no. 4 is not even a graduate. None of the
five candidates appointed from the general category i.e. 'D'
category have contributed to the social or educational cause or
development. Similarly, none of the five members in the general
category is Member of Parliament or State Legislature from the
Shirdi Constituency. Thus, the appointments of all the members
suffer from arbitrariness, the same are malafide and politically
motivated. None of the members possess an impeccable
character or known as men of high rectitude. On the contrary, all
the members possess either political or criminal background or in
any case have allegation of misconduct.
51 Finally, it is urged that the expression used in section
9(1)(f) of the Act "is otherwise found unfit" is of very wide
amplitude. A person, who is not found guilty of misconduct or
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who is not being charge-sheeted for offence of immoral turpitude
can still be found unfit. None of the members of the Committee
appointed under the notification dated 28th July, 2016 are fit to
be appointed as members of the Managing Committee.
52 It is in these circumstances that it is prayed that the
writ petition be allowed.
53 As already observed above, presently, we do not refer
to the affidavits of respondent nos 4 to 15. It is on all materials
that we have heard Public Interest Litigation No. 102 of 2016.
The other matters are also Public Interest Litigations, but it is
conceded that the challenge in the same is more or less identical.
54 Mr. Talekar-senior counsel and Ms. Pradnya Talekar
appearing for the petitioner contend that these PILs have been
filed so as to invite the attention of this court to the arbitrary and
malafide appointments, which have been made to Shri. Saibaba
Sansthan Management Committee. It is submitted that the
impugned Resolution is contrary to law. It is also violative of the
mandate of Article 14 of the Constitution of India in the sense
that every State action has to be fair, transparent, reasonable,
just and non-discriminatory. If the impugned resolution and the
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action preceding thereto is taken into consideration, then, this
mandate is blatantly flouted. The State has failed to protect the
interest of crores of Sai Bhaktas spread over not only in this
country, but across the globe. This sansthan occupies a
prominent place and is very dear to the heart of devotees and
public. Devotees and worshipers of Saibaba cut across religions,
sex, caste, creed and place of birth. They pin their hope and trust
in the State Government and feel that their interests are secured
and safe. The State Government has made a law for quick,
smooth and efficient administration and management of the
affairs of the Shirdi Sansthan. However, that trust and faith of
the general public in the State is belied and is shattered when it
was noticed that hurriedly this Government Resolution was
issued to displace the Committee of Management constituted
under the orders and directions of this court. Now, the
management and administration of the temple trust is again a
political affair. As there is a coalition Government, the partners
of such coalition have agreed to split the spoils. Thus, all parties
in the coalition Government are eager to push the names of their
workers and leaders for appointment on the Committee. Once
this is the real intent, motive and purpose, then, no amount of
legislation would assist and help to preserve and protect the
cause of the devotees and worshipers of Saibaba. Therefore, the
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present actions run contrary to the Act, namely the Maharashtra
Act XIV of 2004 (The Shree Sai Baba Sansthan Trust (Shirdi)
Act, 2004. The object and purpose of this Act is completely
defeated and frustrated by the impugned actions.
55 Mr. Talekar would then submit that because of the fact
that the Act has been utilised so as to benefit the party in power
that even the Rules are vague and ambiguous. The Rules do not
specify and define a criteria. Some general qualifications are laid
down and which could be applied to any and every appointment.
The appointment is to the sansthan's Management Committee.
This sansthan has huge property, movable and immovable.
Everybody has an eye on the property and the money generated
in the form of donations, gifts and receipts from the devotees and
worshipers across the world. It is that which is attracting the
parties like respondent nos. 4 to 15. If they manage to secure
appointment in this manner so also the State obliges them, then,
the Rules further the sole intent and their ill motive.
56 Mr. Talekar has then submitted that appointment of
trustees is a statutory power. It is an appointment under the
statute. The appointment should be made in accordance with the
Act and Rules. If the appointments are not made in conformity
with the Act and Rules, then, they can be struck down. Mr.
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Talekar has submitted that even if it is assumed but not admitted
that the appointments are to a Committee of management of the
sansthan's Trust and that Committee has to be constituted under
section 5, still, that section sets out the mode of appointment,
namely, by notification in the official Gazette. It states that not
more than 15 other members together with the Chairman and
Vice Chairman constitute the Committee as envisaged by section
5(1). Therefore, the power to appoint may be derived from the
statute, but the appointments are made by the executive. Thus,
Mr. Talekar submitted that it is always argued in such cases that
it is an executive domain and the appointment as also the
appointees are at the pleasure of the State. Even if this principle
is invoked by the State, still, the law does not permit arbitrary
exercise of the power. If the appointments are made for
extraneous considerations and all or some appointees are of
dubious character or have questionable or doubtful antecedents,
then, such appointments can be struck down by this court in
exercise of its power under Article 226 of the Constitution of
India. The power cannot be exercised in a malafide and
discriminatory manner. Eventually, the power to appoint cannot
be abused and if it is indeed abused, this court has always struck
down even administrative acts. The present action is not an
exception to this principle.
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57 Mr. Talekar has also presented another facet of this
argument. He would submit that the object and purpose of the
Act has to be placed in the forefront while making the
appointments. If the Act is enacted for a laudable purpose,
namely, to provide for better management, administration,
governance and control of the Trust to enable it to take wider
welfare activities for the public, then, those appointed are
trustees of the public. The appointments and the power conferred
in that behalf must therefore be exercised fairly and reasonably.
The appointments made should fulfil the aim and object of the
Act. That should be preserved and subserved at all times. If the
appointments are made purely for political considerations, then,
they have no nexus with the object and purpose sought to be
achieved by the Act. The legislation does not permit
appointments of individuals only to derive some political benefit.
This is not a political office. The power cannot be compared with
awarding a ticket by the political party to contest elections or to
participate in party or political affairs. Thus, the power though
vesting in a democratically elected Government, it is not a
political power. The elected functionary is bound to exercise
every such power in accordance with law including in terms of
the relevant provisions of the Indian Constitution. Thus, the
exercise of power ought to be guided by these binding principles.
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It is eventually an executive power vesting in the State and which
power is of appointment of a member on a Management
Committee and to manage the affairs of none other than the
Shirdi Saibaba Sansthan Trust. The venue itself has great
religious significance. The name Saibaba and after whom the
temple and the Trust is named itself denotes that the appointees
should not be mere disciples or Sai Bhakts, but persons of
integrity, character, experience, knowledge and learning. The
administration and management of the temple Trust is
comparable only to the governance of a huge township.
Therefore, the only consideration which should be weighing with
the Government in making the appointment is the fulfillment of
the mandate of the Act and nothing else. If the power is exercised
leaving out that from consideration, then, the same cannot be
said to be in consonance with the mandate enshrined in Article
14 of the Constitution of India. It is well settled that even in
matters of such appointments, the mandate of Article 14 will
have to be followed. Therefore, as demonstrated by the
petitioner, the appointments are not made in accordance with the
Act and to serve its purpose. The appointments are wholly
vitiated by application of irrelevant, irrational factors and
matters dehors the salutary purpose sought to be achieved by
enacting the law. If there was no need to codify separately the
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administration, management, governance and control of the
affairs of this Trust, then, the Maharashtra Public Trust Act,
1950 and the authorities thereunder were sufficient and that law
would have ensured the smooth functioning and proper
management of the affairs of the Trust. However, when the State
made a law specifically for this temple Trust and concerning its
affairs, its administration, management and governance so also
overall control, then, that law cannot be brushed aside or its
provisions totally ignored. This is precisely what is happened in
this court according to Mr.Talekar.
58 Mr. Talekar has submitted that there was no
verification of antecedents and particularly the nature of the
criminal cases against the appointees. The State may make a
general statement on oath, but there is no indication, much less
any detailed procedure set out which is adopted for verification of
antecedents. It is not just restricted to disqualification for
appointment as set out in section 9, but each of the sub-clauses of
sub-section (1) would throw light on the nature of the verification
and scrutiny to be carried out. For example, Mr. Talekar
highlighted sub-clauses (d), (e) and (f) of sub-section (1) of
section 9 as also the conditions for being a member as set out in
section 8 to submit that the guilt of misconduct or being charge-
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sheeted for the offence involving immoral turpitude are separate
disqualifications. The third one is that the appointee should not
be found to be otherwise unfit. These words are of wide amplitude
and have been employed in the law deliberately so as to leave out
or exclude such persons, who are unfit for appointment as
member of the Committee of Management. This unfitness is not
merely physical, but involves something more. Therefore, there
has to be a transparent and open scrutiny. The process of
verification cannot be secret. Even if the State is unwilling to
divulge any details of this process, still, it is obliged to produce
materials to prove that the process if at all undertaken by it was
fair, transparent and not shrouded in secrecy. The State is
expected to take a conscious and clear stand regarding an issue of
great public importance. It cannot appoint persons with a
questionable and doubtful past or criminal antecedents merely
because they are kith and kin of or close to those in political
power at the Centre and the State.
59 It is clear that there are no written guidelines or
directions guiding the State as to the mode of making
appointments. The mode itself is not spelt out either in the rules
or regulations nor are there any guiding factors otherwise. In
these circumstances, it can be safely presumed that there is no
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application of mind by the State to above vital factors and the
specific clauses of sub-section (1) of section 9 of the Act. Once no
record is placed before the court proving the fulfillment and
satisfaction of the above factors, then, this court must presume
that the power vesting in the State has not been exercised for the
purpose for which it vests in it. Then, the power has been grossly
misused and therefore, this court would be justified in interfering
in writ jurisdiction.
60 Mr. Talekar has elaborated his arguments by inviting
our attention to the details in the sense how and why the
petitioners terms the appointment of respondent nos. 4 to 15 as
malafide. He has given us a chart respondents-wise to indicate
that not only they belong to or are close to the political outfit in
power in the State, but also setting out the criminal cases and
other allegations with regard to their conduct, which would
demonstrate, according to him, that the appointments lack in
integrity and character. That they are thoroughly unfit for being
appointed is the plea.
61 In that regard, our attention is invited to the synopsis
and compilation of the relevant documents handed over by
Mr.Talekar. He would submit that as far as Shri. Suresh Haware
is concerned, his appointment is contrary to Rule 3(1), inasmuch
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as a Chairman has to be from one of the four categories
mentioned therein. Rule 3(3) also is relevant, because the
concerned respondent appointed as the Chairman became
member of the Bhakta Mandal only on 6th July, 2016. There is
also violation of section 9 (1)(f) and Rule 6(2) of the Act and the
rules since police verification is not undertaken in Mr. Haware's
case. Now, information is available under the Right to
Information Act, 2005 dated 2nd September, 2016 and which
would indicate that not only in the case of appointment of the
Chairman, but all others, there has been a departure or deviation
from the Act and the rules and no reasons have been assigned for
the same. Further, none of the persons have been appointed
based on their applications. In other words, none of them applied
for being appointed and yet they secured appointments.
62 Our attention is also invited to the
compilation/additional compilation of documents, which would
indicate as to how in the case of this Chairman, there has been a
specific complaint. Our attention is invited to the allegations
against the fourth respondent of cheating, forgery and criminal
breach of trust in sale of property. He was, at the relevant time,
the Chief of Thane Unit of the Bhartiya Janata Party. There was a
charge-sheet filed in the competent criminal court at CBD, Vashi
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against the first respondent, his brother Sanjay and sister-in-law
Ujwala and two of his employees, working in his construction
firm, known as Haware Engineers and Builders. The news
reports are also relied upon, which would, according to
Mr.Talekar, establish and prove that there has been absolutely no
verification of the antecedents of the fourth respondent. There
are also allegations with regard to evasion of octroi duty and in
that regard, our attention has been invited to the order passed on
24th April, 2017 by this court in Public Interest Litigation No. 3 of
2014.
63 Then, our attention is invited to the allegations as far
as respondent no. 5, whose appointment is made as Vice
Chairman. Though, it is stated that his appointment is in
category 'C' as a rural development expert, still, if Rule 3(1) is
perused, the second respondent does not meet the requisite
qualifications and in terms of the Schedule to the rules. He ought
to be a graduate, possessing 10 years work experience in rural
development and ought to be rewarded for his work either at
national or State level. His Bio-Data does not mention his
qualifications and even in this case, no police verification has
been undertaken. It is stated that in the writ petition, it has been
pointed out as to how respondent no. 2 was unfit for appointment.
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64 Then, respondent no. 6 has been appointed as a
member of this Managing Committee from category 'A' (women
category). This appointment is in exercise of the power, which is
unbridled. There are no guidelines so as to guide the authorities
in making appointments from this category. There is a violation
of section 7(3) and Rule 5(4), inasmuch as after appointment, she
has, as a part of the bitter political relations between the Bhartiya
Janata Party and Shiv Sena, been abstaining herself from
attending any meeting. She has, in terms of the directions of her
party high command, refused to co-operate because the Chief
Minister of the State did not keep his promise of awarding the
Vice Chairmanship of the Trust to a Shive Sena member.
65 Apart from this, her appointment also violates section
9(f) and Rule 6(2). No police verification has been undertaken.
The sixth respondent is also charge-sheeted for offences
punishable under sections 37(1), 37(3) and 135 of the Bombay
Police Act. The attention of this court is invited to certain
documents, which are mentioned in the Annexures as also in the
compilations to support the argument that the only consideration
for her appointment is the proximity to the political party in
power. Similarly, it is submitted that this court, in several orders
and particularly in the order dated 30 th March, 2012 in Public
Interest Litigation No.27 of 2012 as well as order dated 13 th
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March, 2012 in Public Interest Litigation No. 18 of 2011 and the
judgment and order dated 2nd May, 2013 in Public Interest
Litigation No. 27 of 2012, criticised the State for making
appointments only on this consideration.
66 As far as respondent no. 7 is concerned, his
appointment is made from the socially and economically
backward category. In this case as well, the law has been
violated, namely, section 9(f) and Rule 6(2). Further, there is no
proof of his caste and whether he possesses a certificate of
belonging to non-creamy layer category. From the record, it
appears that he belongs to Maratha caste and his occupation is
business. He does not appear to be socially and economically
backward given his financial status. He has amassed huge
wealth. Lastly, FIR Nos. 130 of 2009, 20 of 2011, 21 of 2013, 109
of 2014 and 32 of 2004 have been registered against him for
offences punishable under sections 324, 325, 307, 143, 145, 353,
427 and 435 of the Indian Penal Code, 1860. A Criminal
Miscellaneous Application No. 224 of 2016 is pending against him
in the court of Civil Judge, Junior Division and Judicial
Magistrate, Rahata alleging offences punishable under sections
499, 500 and 120 of the Indian Penal Code, 1860. He also has not
made any application.
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67 We must note that there is no challenge to the
appointment of Mr. M. M. Jaykar.
68 As far as Mr. Pratap Bhosale, it is alleged that his
appointment is made on the basis that he is specialist in Business
Management. However, in his case, Rule 3(1) has not been
adhered to. He should be either a Bachelor in Business
Administration or Commerce and must possess 10 years' work
experience in the field of management or 10 years' experience in
auditing. His Bio-Data indicates that he is not qualified as there is
no work experience.
69 Even his antecedents have not been verified. He was
deported from the United State of America by an order of a
competent court. He also did not make any application.
70 As far as Mr. Rajendra Singh is concerned, in his case
as well, the qualifications are lacking. He ought to have possessed
a Bachelors Degree in Business Administration and work
experience of 10 years. His qualification is BAMS and he has no
work experience in management. In his case as well, there are
allegations of having committed offences punishable under
sections 406, 409 and 427 of the Indian Penal Code, 1860.
Therefore, he also was unfit for being appointed.
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71 There are serious allegations made against
Mr.Bhausaheb Wakchaure. His appointment is from the general
category. Even in his case, it is alleged that offences punishable
under sections 406, 409, 420 and 427 of the Indian Penal Code,
1860 have been registered against him. He has filed a false
affidavit as well. His appointment is also contrary to the settled
principle that political considerations ought to be entirely out of
place. This gentlemen was a member of parliament and contested
the elections on the ticket allotted by Shiv Sena party. Then, in
2014, he switched his loyalty to Bhartiya Janata Party. He was a
Bhartiya Janata Party candidate in MLA elections.
72 As far as Mr. Amol Kirtikar is concerned, his
appointment violates Rule 3(3) of the Rules. He is not a resident
of Ahmednagar district. Therefore, he was disqualified from
being considered for appointment. He is belonging to Shiv Sena
party.
73 Then, it is alleged that one Bipin Kolhe has been
appointed in gross violation of section 9(f) and Rule 6(2) of the
Rules. There is a criminal case pending against him alleging
offences punishable under sections 143 and 341 of the Indian
Penal Code, 1860. His wife is a MLA of Bhartiya Janata Party
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from Kopergaon. His father was a MLA (member of the State
Legislative Assembly for 25 years). He belonged to
Congress/Nationalist Congress party. He was also Vice Chairman
of the Sansthan from 2004 to 2012.
74 Then, there is a challenge to the appointment of
Ravindra Mirlekar respondent no. 13. Even in his case, it is
alleged that he has secured appointment only on the strength of
his political connection. He belongs to Shiv Sena party. Even he
is not a resident of Ahmednagar district. Therefore, his
appointment is also in contravention of the Act and Rule 3(3) of
the Rules.
75 As far as the appointment made from the category of
the Chief Executive Officer of the Nagar Panchayat, Shirdi, that
appointment is not challenged by the petitioner.
76 Mr. Talekar, summarising his arguments, contended
that there is a serious challenge to the legality and validity of the
rules and raised in pending Writ Petition No. 4143 of 2013. There
is an order passed on 14th May, 2013 in that petition. The
appointments are made without there being any application from
the appointees. There were several applications, which were
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forwarded by interested persons. There has never been a
scrutiny and verification of these applications and only such
persons, who are close to the politicians and are otherwise
influential, have been appointed. There has never been any
scrutiny of the documents and forwarded by these appointees. In
none of the cases, a verification has been made and in accordance
with the Act and the Rules enabling recording of the satisfaction
that the appointees are eligible, qualified and are men and women
of integrity and character. There is no police verification carried
out as per Rule 6(2) and section 9(f) for 7 out of 12 members of
the Managing Committee.
77 Thus, these appointments are contrary to law, specific
orders and directions of this court referred above and vitiated by
non application of mind. The appointments also contravene the
mandate of Article 14 of the Constitution of India. The public
interest is compromised and sacrificed and only political
considerations have weighed with the authorities in making
appointments.
78 In these circumstances, Mr. Talekar would submit
that this court should interfere in its writ jurisdiction and quash
and set aside the impugned resolution/order.
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79 We have on record several affidavits in reply filed by
the private respondents. However, we would make a reference to
them while setting out the contentions of their counsel.
80 Mr. Dixit learned senior counsel appearing for the
State submitted that these PILs are not maintainable. Mr. Dixit
has invited our attention to the Bombay High Court Public
Interest Litigation Rules, 2010 and particularly Rule 3(e)
containing the definition of a Public Interest Litigation. Mr. Dixit
would submit that the PILs are motivated and filed by those
persons, who have failed to secure appointments or by political
opponents or those having vested interest in the management
and administration of the Trust. In that regard, our attention has
been invited to memo of Public Interest Litigation No. 102 of 2016
and particularly pages 3, 5, 7, 8, 14 and 15 and ground no. XXI.
Our attention is invited to page 16 ground no. XXIV, 17, 18, 22,
25, 29, 40-M, 45 and 47 to submit that the petition contains
vague and general allegations and statements. There is a definite
private interest of the PIL petitioner in Public Interest Litigation
No. 102 of 2016. He has, for his own motives and financial
interest, made wild and baseless allegations and he is not a
genuine public spirited citizen.
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81 Without prejudice to the argument that the PIL is not
maintainable and should be dismissed, Mr. Dixit would submit
that the averments in the petition are patently false. The
allegations are irresponsible in the sense the initial averment in
the petition is that there are no rules, but at the same time, rules
are referred. Our attention has been invited to pages 426 to 428
of the record to submit that there is no challenge to the rules.
Mr.Dixit would submit that in the petition allegations are made
against high level functionaries. In these circumstances, none of
the reliefs in terms of the prayers of the petition can be granted.
Mr. Dixit invited our attention to page 162 of the compilation to
submit that the order of the Division Bench is suppressed. There
was an interim arrangement made by this court till the rules are
made, duly notified and fresh appointments are made in
accordance therewith. Once fresh appointments have been made
and in terms of the power conferred in the State by the Act and
the rules, then, such appointments would replace any ad-hoc or
interim arrangement. If the Act and the rules permit making
such appointments, as are made vide the extant notification,
then, in the absence of any challenge to the rules and the Act, no
relief can be granted. Mr. Dixit would submit that the Act and the
Rules are complete by themselves. Mr. Dixit has taken us
through the provisions of the Act to submit that the same
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contemplates series of committees. There is a Management
Committee, there is a Scrutiny Committee contemplated by
section 21 and there is a Advisory Council contemplated by
section 18. Mr. Dixit would submit that these appointments have
been made under the executive power of the State. This
executive power enables the State to make appointments and
though the power to appoint is derived from the statute, the
actual appointments are beyond the purview of judicial review.
The discretionary power exercised by the State in making
appointments cannot be challenged in the absence of proven and
established charge of abuse of power and malafides. There is no
such challenge. Mr. Dixit has submitted before us, during the
course of arguments, that Mr. Sachin Tambe-respondent no. 7 has
resigned as trustee on 10th July, 2017 and his resignation is
accepted. Similarly, in the case of Mr. Wakchaure, FIR No. 238 of
2013 and the prosecution in terms thereof is withdrawn. The
State has exercised the powers conferred by section 321 of the
Code of Criminal Procedure, 1973. Once the prosecution itself is
quashed, complaint is dismissed and the accused is discharged,
then, it is false to allege that any criminal case or prosecution is
pending. Even against Mr. Bipin Kolhe, the allegations made
against him are false. He was released on bail and during the
pendency of the criminal case, an application was made under
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section 321 of the Code of Criminal Procedure, 1973. The
prosecution has been withdrawn.
82 Mr. Dixit was at pains to point out that section 9(1)
and the clauses thereof cannot be read in the manner suggested
by Mr.Talekar. Mr. Dixit would submit that clause (f) would have
to be read along with the preceding clauses. Further, if there is no
charge-sheet pending in relation to offences involving moral
turpitude, then, with the assistance of Form 'A', Item No. 7, it
cannot be alleged that the appointment is contrary to law.
Mr.Dixit would submit that such an item in the form appended to
the rules cannot travel beyond a specific provision of the Act and
the rules themselves. In other words, a form cannot override the
substantive section and rules. Item No. 7 of Form 'A', even
otherwise, need not be strictly complied with. Such compliance
should not be read in the said form. Mr. Dixit then submitted that
section 9(1) would have to be read bearing in mind the language
of section 12 and he would submit that Form 'A' is directory. True
it is that there should be a declaration, but the form in which such
declaration should be submitted cannot be construed as
mandatory, but directory.
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83 Mr. Dixit then highlighted the words and expressions
in section 9(1)(f), on which heavy reliance was placed by
Mr.Talekar. Mr. Dixit would submit that it is for the State to
judge the gravity and magnitude of the offences alleged and the
subjective satisfaction of the State cannot be interfered with. The
words "or is otherwise found to be unfit" take their colour from
the words and expressions preceding it. These words cannot be
read in isolation. The preceding words and expressions would
definitely throw light on the construction of the above words and
expressions. They would be relevant while construing the later
portion. Mr. Dixit would, therefore, submit that it is not proper to
read the words and expressions "or is otherwise found to be unfit"
as furnishing a separate ground or cause for holding a person to
be disqualified for appointment or continuing as a member of the
Managing Committee. Mr. Dixit would submit that the State, in
its discretion, has to form an opinion about the fitness of the
member/appointee. The opinion of the State cannot be interfered
with under the power of judicial review.
84 Mr. Dixit would submit that in making such
appointments or in exercising such executive power, it is not
necessary that there have to be written guidelines or regulations
in the field. The State has, even otherwise and bearing in mind
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the object of the Act, the status of Shirdi Saibaba Sansthan,
exercised due care and caution. It has not made appointments
only on political considerations as falsely alleged. Even
otherwise, there is no prohibition in appointing a political leader
if that person is duly qualified and is experienced, specialises in
administration and management of a trust like Shirdi Saibaba
Sansthan. If the person has worked in a social or educational
field, has been representing people for a long time, is concerned
with rural development, then, he deserves to be appointed. He
cannot be held to be disqualified or ineligible merely because he is
a member of a political party. Therefore, the PIL petitioner
cannot carve out any criteria for appointment and force the State
to accept it. Once the Act and the rules are not challenged, the
discretionary power vesting in the State is not questioned, there
are no materials to prove and establish the allegations of
arbitrariness and malafides, then, the petition deserves to be
dismissed.
85 Mr. Dixit would submit that it is his duty to satisfy the
judicial conscience of the court. Therefore, on instructions, he
has stated that ordinarily a report from the police is called for.
Rule 6(ii) has been referred by Mr. Dixit to submit that a police
report/verification is one of the sources of obtaining information.
There are other sources from which the State obtains the relevant
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information with regard to the conduct and character of those
whom the State desires to appoint. Mr. Dixit would submit that
section 5 employs the word "appoint". In these circumstances, it
is not compulsory or incumbent on the State to invite applications
from the members of the public. It is the prerogative of the State
to make appointment and while making the appointment, the
State is guided by sub-section (2) of section 5 of the Act.
Eventually, the word "appointment" does not necessarily mean
and in terms of the executive powers vesting in the State, an
appointment in the services of the State. In other words, the
appointment under the Act cannot be equated with public
employment. Mr. Dixit also invites our attention to the rules to
submit that Shri. Saibaba Sansthan Trust, Shirdi (Appointment of
Members of Management Committee and Forms of Declaration)
Rules, 2013 envisage appointments and Rule 6 clarifies that
appointment of members shall be made by the State by
nomination. Therefore, there is no substance in the contention of
Mr. Talekar that the State is obliged to invite applications from
the general public or if members of the public make applications
seeking appointment, the State must necessarily consider them
or is obliged to consider them. There is nothing in the scheme of
the Act and the rules to suggest this course. Mr. Talekar's first
contention, therefore, should fail is the argument of Mr. Dixit.
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86 Mr. Dixit then submitted that Mr. Talekar's
arguments with regard to the nature of the power vesting in the
State Government also deserve to be rejected. Mr. Dixit submits
that he has already pointed out that the executive power vesting
in the Government of making appointments has been exercised
reasonably and fairly. There is a presumption that all actions or
orders of the State are reasonable and fair unless proved
otherwise. Therefore, once the State Government acted in terms
of a report of the police or prior verification by the police or
official sources and then made the appointments, then, all care
has been taken. The State has acted transparently, fairly and
reasonably. None of the petitioners, who claim to be public
spirited citizens, possesses any vested right. While concluding
his arguments, Mr. Dixit submits that it is the absolute power of
the State Government and nothing can be added in or subtracted
from the provision. It is only when a person commits any act
specifically enumerated in the clauses of section 9(1), he is
disqualified. By reading something in the provision, a
disqualification not provided specifically therein cannot be
inserted. Mr.Dixit submits that the police verification record is
available with the State and he has handed it over in a sealed
cover.
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87 The advocate appearing for respondent no. 3 Mr. N. R.
Bhavar has adopted the arguments of Mr. Dixit.
88 Then, the learned counsel appearing for respondent
no. 4 has invited our attention to the affidavit in reply of this
respondent. It is argued by the learned counsel appearing for
respondent no. 4, on the basis of the affidavit in reply at page 626
of the paper book that it is false to allege that there are any
criminal antecedents. There is no criminal record. There are
only eight civil suits and two complaints pending in the Consumer
Court. Even these proceedings are against a company. The
respondent no. 4 is one of the directors of this company, namely,
Haware Engineers and Builders. It is not the law that because a
prosecution or a civil suit or a complaint under the Consumer
Protection Act, 1986 is pending against a company that its
director is also disqualified. The fourth respondent is a very
reputed person. His qualifications, credentials and achievements
are beyond doubt. He is a nuclear scientist. He has been educated
and trained abroad. His contribution to that field is well
recognised and appreciated. When such a person is chosen by the
State to head the Management Committee, that is not purely
because of his political affiliation. That is incidental and wholly
inconsequential. The record of this respondent no. 4 Shri Haware
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would enable us, according to the counsel, to conclude that his
appointment does not suffer from any abuse of executive power
or malafides. This is not a reward for his loyalty to the political
party, namely, Bhartiya Janata Party. It is a recognition of his
contribution and achievements and the allegations are made
purely out of jealousy.
89 Mr. Dhorde learned senior counsel appearing for
respondent nos. 5 and 7 would submit that we must bear in mind
that the legislature in its wisdom has conferred complete
discretion in the executive. The mode of appointment can also be
chosen by the executive. There is no requirement of inserting an
advertisement so as to invite applications from interested
members of the public. The executive power can be exercised by
the State Government and none can claim a vested right of
appointment to the Management Committee of a Trust. Merely
because it is Shirdi Saibaba Sansthan that is no exception. It is
eventually an appointment by nomination and the State is free to
choose the appointees. The State is not obliged to consider any
and every member of the public. In its wisdom, if the State
decides to appoint a person, then, merely because he is associated
with the ruling party does not mean that he is disqualified
automatically. Mr. Dhorde then submitted that persons in public
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and social life have to represent the public, particularly when
they are elected representatives. Even if they are not such
representatives, if they are part and parcel of any cultural and
social organisation and association, members of a political party,
it is but their duty to give a voice to the grievances and
complaints of the public. Once members of public bring their
causes and grievances, particularly about lack of basic amenities
in a village or a city, then, for such causes of the public and in
their interest, on several occasions, peaceful demonstrations
have to be held. Sometimes, together with the members of the
public, such socially and politically active persons have to march
to the office of the Collector of the District, Revenue
Commissioner, other bodies and authorities like Municipal
Council and Corporations and handover written representations
and demands. Sometimes, they have to take part in peaceful
protest and well known means of agitations such as a Dharna,
hunger strike or fast. On such occasions, there is always an
attempt to silence such protestors and demonstrators and they
are picked up by the police machinery on the specious ground and
reason that they are disturbing public peace and disrupting even
tempo of life. They are, at times, detained and charges are sought
to be framed against them by taking recourse to penal laws.
When the underlying cause for the prosecution is of the above
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nature and for illustration such persons are held and taken in
custody for protesting on account of lack of basic amenities like
drinking water, electricity etc., then, the offences alleged are not
involving moral turpitude. Mr. Dhorde submits that affiliation
with a political party is no bar for appointment and the
appointment cannot be challenged on this ground. Mr. Dhorde
would submit that from the record and particularly from the
affidavits filed by these respondents and the memo of Civil
Application No. 16304 of 2016, it would be evident that the
appointments have been made from specified categories like rural
development. There is no offence alleged involving moral
turpitude against these persons. Further, the record would show
that either the prosecution has been withdrawn or an application
for withdrawal of the prosecution is pending. Mr. Dhorde also
emphasised before us that educational qualifications have a
certain place in the scheme of the Act and the rules and
particularly while making appointments to the Management
Committee. However, when members or appointees like these
respondents, who are continuously working for rural
development, coming from a rural background, not having access
to formal education and not possessing degrees and diplomas by
itself and without anything more will not disable or disqualify
them from being appointed. One cannot forget their rural
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background and too much obsession with educational
qualifications would defeat the very purpose of making
appointments from such categories.
90 Mr. Dhorde, therefore, strenuously submitted that
lack of degrees and diplomas and graduate and post-graduate
educational qualifications does not mean people from rural
background are uneducated. They are educated, but all of them
may not be literate. Therefore, basic education and thereafter the
work, their knowledge in the field derived from actual ground
work would justify appointments from this category. Mr. Dhorde,
therefore, would submit that there is no merit in this PIL and it
should be dismissed.
91 The learned counsel appearing for respondent no. 9
Mr.Patil invited our attention to the affidavit in reply and
submitted that respondent no. 9 is an eligible and qualified
person. He may be associated with the political party in power,
but his qualifications and achievements enable the State to
appoint him. There is no truth in the allegation that he was
deported from the United States of America. The record indicates
that he volunteered to leave that country. Therefore, the
allegations are baseless.
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92 Mr. Hon learned senior counsel appearing for
respondent nos. 10, 12 and 13 would submit that the allegation as
far as respondent no. 10 is concerned is that he is a Bhartiya
Janata Party loyalist and close relative of Mr. Rajnath Singh,
Minister of Home, Government of India. However, this is a false
statement. The surname is common and that is all. There is
absolutely no relationship. These respondents have been found to
be eligible and qualified from category 'C' Business Management
and Medical Practitioner. Respondent no. 10 is fully qualified. It
is submitted that if one peruses the affidavit in reply, particularly
at page 391, in the backdrop of section 5 and the rules, it would be
evident that there is no criminal background nor any
antecedents. The allegations are entirely baseless and therefore,
the petition should be dismissed.
93 Then, Mr. Hon, appearing for respondent no. 12 would
submit that page 37 of the petition contains the allegations.
There are allegations of criminal antecedents, but if one peruses
the details of the criminal case, it would be evident that there was
a dam project styled as Nilwande Dam Project. As a
representative of the people and highlighting their grievances,
this respondent joined a protest march. The allegation is that
there was a "dharna" meaning the protesters squatted on the
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road. They blocked the traffic and that caused inconvenience to
the people at large. However, one must see the background in
which the protest march or dharna was organised. That was to
voice the protest of those who were deprived of drinking water,
which is a basic necessity. When such is the reason and for which
peaceful protest or march is organised, then, the alleged offence
committed can never be said to be involving moral turpitude.
There is no prosecution pending against this respondent. Our
attention was invited to page 119 of the paper book to submit that
the application was in general category.
94 The learned counsel appearing for respondent no. 11
invited our attention to the affidavit in reply, particularly page
360 thereof. In this affidavit in reply, it was pointed out by
respondent no. 11 that his appointment is from category 'D'. He is
a resident of Ahmednagar district. There is absolutely no
substance in the allegations, because in the proceedings, namely,
Writ Petition No. 5008 of 2007 filed in this court, respondent no.
11 was representing the temple Trust. The allegations concern
the management of the Trust. There are no personal allegations
against this respondent. He has no criminal antecedents nor has
he committed any offence involving moral turpitude. The
respondent no. 11 was discharged from the criminal case. Hence,
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his appointment is valid. This respondent was earlier the Chief
Executive Officer of Zilla Parishad and the Executive officer of the
Shirdi Temple Trust till he retired in January, 2008. Thereafter,
he has been involved in social works and being a devotee of
Saibaba, he is chosen and appointed. That is also on account of
his past experience. His appointment, therefore, cannot be said
to be vitiated in law.
95 At this stage, we must clarify that respondent nos. 6
and 13 to 15 have been duly served. No appearance has been
entered on their behalf nor any affidavit in reply has been filed by
them.
96 The above sums up the arguments of all private
respondents.
97 Ms. Pradnya Talekar learned advocate appearing for
the petitioner, in her rejoinder arguments, submitted that there is
no scrutiny or verification made before the appointments. The
appointments are thus contrary to law. The law postulates that
such of those persons who are disqualified for appointment shall
not be appointed. Ms. Talekar would submit that the reading of
section 9 by Mr. Dixit is incorrect and improper. While a person
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shall be disqualified if he is a minor or is of unsound mind and is
so declared by a competent court, is insolvent, he can also be
disqualified if he is directly or indirectly interested in a lis or any
transaction relating to the immovable property of the Sansthan
Trust. Similarly, except for sub-section (1) of section 6, if any
person, who is a paid servant of the Committee or has any share
or interest, directly or indirectly in any contract for the supply of
the goods to or for execution of the work for the purpose of any
service undertaken by the Committee in respect of the Sansthan
Trust, then, he is equally disqualified. Clause (f) deals with a case
where the disqualification for appointment or for being a member
is if the person is guilty of misconduct or has been charge-sheeted
for the offence involving moral turpitude or is otherwise found to
be unfit. Ms. Talekar submits that the words preceding the
expression "or is otherwise found to be unfit" would not control
the interpretation of these later words and expressions. This is
not a provision which can be construed by applying the principle
"ejusdem generis". The first part of clause (f) is dealing with
misconduct. The words appearing thereafter pertain to a person
who is charge-sheeted for the offence involving moral turpitude.
The third category is " or is otherwise found to be unfit".
Therefore, a person may not be pronounced guilty of misconduct
or may not be charge-sheeted for the offence involving moral
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turpitude, but if he is otherwise unfit, then, he is held to be
disqualified. The word 'unfit' has been interpreted and construed
in several decisions and Ms. Talekar relies upon some of them.
98 Ms. Talekar would then submit that as far as
respondent no. 4 is concerned, it is not clear from which category
he is appointed. Even if one is appointed as a Chairman, he has to
be from one of the four categories. In any event, prior to
appointment of respondent no. 4, no police verification was done.
In other words, there are no particulars or details sought from
the police in the form of a report.
99 Similar is the case of respondent no. 5. He has no
experience of any work in rural development. His only
qualification is that he was a MLA. There is no request to close
the prosecution on the date of the appointment of respondent
no.5. He is thus a person with criminal antecedents. The request
to close the criminal prosecution is made post filing of this PIL.
Our attention is invited to page 61 of the compilation to submit
that the prosecution against respondent no. 5 is still pending.
Even in his case, there are no particulars forthcoming of any
prior police verification or a report being called for from the
concerned police station.
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100 As far as respondent no. 9 is concerned, Ms. Talekar
would submit that the appointment is made from the category of
"Finance Management". The gentleman has Masters degree in
Humanity/Arts in 2012. He has no work experience in Finance
Management. No scrutiny has been done as far as his past
conduct is concerned. His fitness is not established and in that
regard, our attention is invited to page 413 of the paper book and
equally the judgment in the proceedings before the court abroad.
It is submitted that the proceedings for removal of this
respondent no. 9 were initiated. Thus, he was to be sent out of the
United States of America. He was seeking asylum. All this shows
that his presence in the United States of America was not
conducive to safety and security of that country. He was a
completely unwanted element.
101 Then, attacking the stand of respondent no. 10,
Ms.Talekar would submit that he is only a Bachelor in
Management Science. This is not a qualification in Business
Management. This gentleman is also not experienced and
therefore, in his case as well, proper scrutiny and verification has
not been done. There is no record of any police verification.
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102 As far as respondent no. 11 is concerned, it is
apparent that against him there is a clear indictment. A writ of
quo warranto could not be issued because this gentleman never
resigned from the post. However, he has suppressed a material
fact that he was charge-sheeted. That charge-sheet was
concerning an offence involving moral turpitude.
103 Similar is the position with regard to respondent no.
12. Against him as well, there are three offences registered.
Public Interest Litigation No. 25 of 2012 is pending. There is no
exoneration of this respondent no. 12 from the charge of
nepotism. Ms. Talekar, in the end, would emphasise the fact that
the State plays a fiduciary role. The State has to ensure efficient,
transparent and smooth management of the affairs of the Trust
and one of the object sought to be achieved by the law is that the
Trust should not be locked in continuous litigation. That should
be reduced. However, it is clear from the record how the State is
responsible for generating litigation against Shirdi Trust for it has
ignored and brushed aside serious charges and allegations
against the management. The State has sought to protect those
involved in acts of omission and commission. The Trust,
therefore, got embroiled in controversies and litigations. In these
circumstances, we should place an interpretation on the
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provisions of the Act which accords with and subserves the object
and purpose of the same. Ms. Talekar, while concluding, again
reiterated her submission that there are distinct
categories/things brought in section 9(1)(f) and she would submit
that the attempt of Mr. Dixit to draw support from the language of
section 10(f) so as to interpret section 9(1)(f) should not be
countenanced. Ms. Talekar would submit that there should be a
conscious application of mind by the State while making
appointments. The executive power cannot be exercised only by
relying on the opinion of the police machinery. That opinion is
never decisive. Eventually, there has to be an analysis of the
materials gathered by the State. This must be by an independent
authority. Ms. Talekar would submit that the Act and the rules
would indicate that there is no mode of appointment set out
therein. Some guidelines would have to be laid down and they are
necessary so as to provide for the manner in which the
appointment is to be made. Even if the State proceeds on the
footing that it cannot be called upon to issue a public notice and
invite applications from interested parties, still, it is the bounden
duty of the State to explain to the court how it arrived at a
conclusion that a particular person is fit for being appointed.
That application of mind must be apparent and how the opinion
about a person's fitness and competence is recorded must be
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disclosed to the court in the event there is an allegation and
serious charge of favouritism and discrimination in the exercise
of power of appointment. Eventually, this is a public office and
though not equated with public employment, some of the
guidelines guiding the State in making appointments to public
posts would have to be applied so as to make appointments under
this statute. She submits that the Act itself in unequivocal terms
says that the members and all officers and employees of the Trust
shall be deemed to be public servants within the meaning of
section 21 of the Indian Penal Code, 1860 and section 2(c) of the
Prevention of Corruption Act, 1988. The word "member" is
defined to mean a member of the Committee and includes
Chairman and Vice Chairman of the Committee. The Committee
is the very Committee, namely, the Shri. Saibaba Sansthan
Management Committee constituted under section 5. Therefore,
the submission that the State has absolute power in making
appointments and that power can never be controlled by any
provision or by application of any guidelines, particularly those
sought to be applied by the PIL petitioners, must be rejected
outrightly. Ms. Talekar would submit that the provisions of the
Act itself contain enough guidelines and once the member of the
Committee is a public servant, then, he performs a public duty.
She relies upon the provisions of the Prevention of Corruption
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Act, 1988 in that regard. For all these reasons, she would submit
that the petition be allowed.
104 It is in the light of the above submissions and
arguments that we must decide the legality and validity of the
appointments of respondent nos. 4 to 15, made vide the impugned
notification.
105 Before we do so, we must dispose of certain
preliminary objections to the maintainability of these PILs. As far
as the first PIL is concerned, it is urged that the petitioner has a
vested interest, inasmuch as he had obtained a contract for
installation of CCTVs. The contract was obtained by the
petitioner on account of his affiliation and association with the
office bearers of the Trust at that time. There was an inquiry held
into the alleged irregularities in awarding of that contract,
according to the contesting respondents. Therefore, the
petitioner has filed the PIL with ulterior motives.
106 We do not think that on some vague objections,
without any particulars pointing towards the role of the
petitioner, his alleged association or affiliation with those in
management at the relevant time, his indictment in any manner
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in any proceedings, it would be proper to arrive at any conclusion
of the nature desired by the respondents. Since there are series
of PILs and which have been entertained earlier by this court and
the argument being that the orders and directions in these PILs
have been misinterpreted and misconstrued, the appointments
have been made contrary to law, it would be improper to throw
out these PILs. Merely because some political rival has brought
before this court the issue of the legality and validity of the
appointments, it will not be proper to throw out the challenge.
More so, bearing in mind the nature of the Trust, the large
number of devotees visiting the Saibaba temple and from all over
the country so also the object and purpose of the Act, we do not
think that the preliminary objections can be upheld. Therefore, in
the facts and circumstances peculiar to this case and the
challenge involved, we hold that the PILs are maintainable.
107 The other objection that was raised and is by the PIL
petitioners. That objection is that the new Management
Committee constituted by the impugned Government Resolution
could not have assumed charge unless it had sought prior
permission from this court. In other words, the Government
Resolution could not have been implemented immediately. For
that to be brought into effect or implemented, all concerned
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should have obtained appropriate permissions or at least
clarifications from this court. This objection overlooks the fact
that by the earlier directions and orders of this court, an ad-hoc
committee of the management of the Sansthan Trust was set up.
That comprised of the Principal District Judge, Ahmednagar
district, the Collector of the district and the Chief Executive
Officer of the Trust. This ad-hoc arrangement was to continue
until and unless a committee was constituted in terms of section 5
and further provisions of the Act by the State Government. Once
that Committee has been set up, we do not see any impediment
for it to assume charge of the affairs of the Sansthan Trust. Even
if any clarification was required to be obtained but not obtained, it
does not mean that the assumption of charge is illegal. We do not
see anything in the orders of this court which prohibits a
Committee of Management constituted by the State Government
in assuming charge and taking over the affairs of the Sansthan
Trust. Therefore, this argument of the petitioners' counsel has no
merit.
108 Even if we reject the above objection of the petitioners'
counsel, it does not mean that the court is prevented or precluded
from considering the submissions of the petitioners on the
legality and validity of the Government Resolution dated 28 th
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July, 2016. The assumption of office by the Committee of
Management constituted by this Government Resolution does not
mean that it enjoys complete immunity from challenge to its
constitution. In other words, the constitution of the Committee
can be challenged if it is contrary to law and the powers of judicial
review, vesting in this court, can be invoked by parties like the
petitioners despite the committee assuming office. That challenge
will have to be independently considered and dehors the
overruling of the above objection of the petitioners' counsel.
109 The Shree Saibaba Sansthan Trust (Shirdi) Act, 2004
is enacted by the State legislature to re-constitute a public trust of
Shree Shirdi Sai Baba Sansthan registered under the Bombay
Public Trusts Act, 1950 under the name "Shirdi Sansthan of Shri.
Sai Baba" at Shirdi, District Ahmednagar, and to provide for
better management, administration, governance and control of
the Trust to enable it to undertake wider welfare activities for the
public. In the preamble itself, the law says that the Trust has
large properties and is very popular and is highly revered and
has very large number of devotees all over India. Therefore, the
Government of Maharashtra considered it expedient that the
development and management of this important and popular
Trust should not be hampered or in any way suffered by avoidable
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litigation and that there should be a separate law to re-constitute
the said Trust and to provide for the efficient management of the
same by a Committee directly under the supervision and control
of the State Government to enable the Trust to carry out its
charitable activities more effectively and efficiently and to be able
to give more facilities for its devotees and to undertake wider
welfare activities from its surplus funds for the general public.
110 The law is not divided into Chapters, but has 35
sections. Section 2 contains definitions and for better
understanding of the terms employed and used in the Act, we
reproduce certain definitions as under:-
"2. In this Act, unless the context otherwise requires,-
(a) "Advisory Council" means the Shree Sai Baba
Sansthan Advisory Council constituted under section 18;
(c) "Bhakta Mandal" means the Shree Sai Baba Bhakta
Mandal referred and recognised under section 19;
(d) "Committee" means the Shree Sai Baba Sansthan
Management Committee constituted under section 5;
(g) "member" means a member of the committee and
includes the Chairman and Vice-Chairman of the
Committee;
(h) "prescribed" means prescribed by rules made by the
State Government under this Act;
(i) "regulations" means regulations made by the
committee under this Act;
(j) "Sansthan" means Shree Shirdi Sai Baba Sansthan
belonging to the Shirdi Sai Baba Temple Trust and
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popularly known as the Shree Shirdi Sai Baba Sansthan
Trust of Shirdi;
(k) "Sansthan Trust" or "Trust" means the Shri Sai Baba
Sansthan Trust (Shirdi) constituted under section 3;
(k1) "Scrutiny Committee" means the Scrutiny Committee
constituted under the proviso to sub-section (2) of section
21;
(l) "Trust Fund" means the fund of the Sansthan Trust
constituted under section 20;
(m) words or expressions used in this Act, but not defined,
shall have the meanings, respectively assigned to them in
the "Bombay Public Trusts Act, 1950."
111 By sub-section (1) of section 3, the Shree Sai Baba
Sansthan Trust (Shirdi) is deemed to be reconstituted under this
Act in place of the Public Trust registered under the Bombay
Public Trusts Act, 1950 by the name of "Shirdi Sansthan of Shri
Sai Baba" at Shirdi, district Ahmednagar. Thus, on 23 rd August,
2004, the Trust shall be deemed to be re-constituted under this
Act. On the appointed day, all the properties, whether movable or
immovable of the erstwhile Trust shall, by virtue of this Act,
stand transferred to and vested in the Sansthan Trust and the
Executive Officer shall, on behalf of the Committee, be entitled to
their possession and management from that day.
112 Section 4 provides for transfer of properties to
Sansthan Trust. Then comes section 5, which reads as under:-
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"5. (1) For the purpose of management of the Sansthan
Trust, on or after the appointed day, a Committee to be
called "the Shree Sai Baba Sansthan Management
Committee" shall be constituted by the State Government
as provided in sub-section (2).
(2) The State Government shall, by notification in
the Official Gazette, appoint, a Chairman, Vice-Chairman
and not more than fifteen other members to constitute the
Committee as envisaged under sub-section (1):
Provided that, out of the total number of members not
less than one member shall be a woman and one member
shall be from the socially and economically weaker
sections.
Provided further that, out of the total number of
members, not less than eight members including the Vice-
Chairman, shall be persons having educational background
with professional or specialized knowledge, qualifications
and practical experience in one or more of the fields such
as law, Business Management, Public Administration,
Engineering, Architecture, Public Health, Medicine or
Rural Development.
(3) The President of the Shirdi Nagar Panchayat
shall be the ex-officio member of the Committee.
(4) Subject to the other provisions of this Act, the
Committee shall be a body corporate by the name
aforesaid, having perpetual succession and a common seal
with power to acquire, hold and dispose of property, both
movable and immovable, and to contract and shall by the
said name sue and be sued."
113 The subject of allowances to members is dealt with by
section 6 and the term of office is provided in section 7. Section 8
sets out the conditions for being a member and reads as under:-
"8. A person to be appointed as a member of the
Committee shall be,-
(a) the permanent resident of the State of
Maharashtra; and
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(b) a devote of Shree Sai Baba and shall, prior to
his appointment as a member make such declaration in the
prescribed form."
114 Then comes an important provision section 9, which
reads as under:-
"9 (1) A person shall be disqualified for appointment
as or for being, a member, if he-
(a) is a minor;
(b) is of unsound mind, and is so declared by
a Competent Court:
(c) is an undischarged insolvent;
(d) has directly or indirectly any interest in a
lease or any other transaction relating to the immovable
property of the Sansthan Trust;
(e) save as provided in sub-sectiion (1) of
section 6, is a paid servant of the Committee or has any
share or interest directly or indirectly in any contract for
the supply of the goods to or for execution of any work, or
the performance of any service, undertaken by the
Committee in respect of the Sansthan Trust;
(f) is guilty of misconduct or who has been
charge-sheeted for the offence involving moral turpitude
or is otherwise found to be unfit.
(2) If it appears to the State Government that a
member has incurred any of the disqualifications as
provided in sub-section (1), the State Government may,
after giving such member an opportunity of showing cause
and after considering any such cause shown, remove such
person from membership, and the decision of the State
Government shall be final."
115 Section 10 confers in the State a power to appoint new
member in the event the existing member ceases to hold office.
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Section 11 deals with meetings of the Committee and rules of
procedure, whereas, section 12 says that no act or proceeding of
the Committee shall be invalid by reason only of the existence of
any vacancy amongst its members or any defect in its
constitution or in appointment of any member. The Executive
Officer and other officers are appointed in terms of section 13 and
by section 14, the powers and duties of the officers of the
Committee are set out. That section reads as under:-
"14. (1) The Executive Officer shall be the Chief
Administrative Officer of the Committee. He shall, subject
to the general control of the Committee, have powers to
carryout the decisions of the Committee in accordance
with the provisions of this Act.
(2) In particular and without prejudice to the
generality of the provisions contained in sub-section (1),
the Executive Officer shall be responsible for the custody of
all properties and records of the Trust and shall make
proper arrangements for collection and deposit of offerings
made in the Temple and shall have powers, subject to the
control of the Committee;-
(a) to take disciplinary action against any
other officer or employee of the Committee;
(b) to call for tenders for works or supplies
and accept such tenders when the amount or value thereof
does not exceed twenty-five thousand rupees;
(c) to dispose of perishable offerings by
auction or otherwise and credit the sale proceeds to the
Trust Fund;
(d) to undertake urgent repairs or measures
required for safety or convenience of the devotees;
(e) to do all other acts and things, which he is
empowered to do by the Committee or under the
regulations.
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(3) The other officers and employees of the
Committee shall exercise such powers and perform such
duties and functions as are assigned to them by the
committee or the Executive Officer or under the
regulations, from time to time."
116 By section 15, the terms and conditions of service of
Executive Officer and other officers and employees can be
determined. Then follows allocation of employees of public Trust
to Sansthan Trust.
117 After these provisions appears section 17, which
reads as under:-
"17. (1) Subject to any general or special orders of the
State Government, it shall be the duty of the Committee to
manage the properties and affairs of the Sansthan Trust,
efficiently, to make proper management for the conduct
and performance of rituals, worship ceremonies and
festivals in the Temple according to the custom and usage,
to provide necessary facilities and amenities to the
devotees and to apply the income of the Trust to the objects
and purposes for which the Trust is to be administered
under this Act.
(2) In particular and without prejudice to the
generally of the provisions contained in sub-section (1),
the Committee shall,-
(a) prepare the annual budget estimating the
income and expenditure of the Trust and send a copy of it
to the State Government and the Charity Commissioner;
(b) maintain proper accounts and records of
the properties and the income and expenditure of the
Trust;
(c) cause the accounts of the Trust to be
audited annually by such person and by such date in the
next succeeding year as the State Government may direct;
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(d) make regular payment of salaries,
honorarium, fees and allowances and other sums payable
to the members, Executive Officer and other officers and
employees of the Committee from the Management Fund;
(e) take measures for the recovery of lost
property or any sums due to the Trust;
(f) institute and defend suits, prosecutions
and other legal proceedings relating to the Trust in a Court
or before a Tribunal or other authority;
(g) inspect or cause an inspection to be made
of the properties of the Trust, from time to time, and to
take prompt steps to remove any encroachments made on
such properties;
(h) supply such returns, statistics, accounts
and other information with respect to the Trust as the
State Government may, from time to time, require;
(i) generally do all such acts as may be
necessary for the purposes of proper management,
maintenance and administration of the properties and
affairs of the Trust;
(j) if deemed necessary, from a sub-
committee from amongst its members or outsiders, to
advise itself on the matters pertaining to the
administration and management of the Sansthan Trust,
and also lay down its composition and procedure for
conduct of meetings and for the matters connected
therewith including provisions for payment of sitting fees,
and travelling and daily allowances to the members of such
sub-committee who are other than the Committee
members, and may also appoint a Chartered Accountant as
recommended by the Scrutiny Committee to assist it in its
functions; and may also appoint a sub-committee of not
less than five of its members from the field of specialized or
professional knowledge to monitor and report to the
Committee the proper, full and timely utilization of the
financial assistance granted by the Sansthan Trust to any
Trust under sub-section (2) of section 21, and report any
misutilisation of financial assistance by such trust to the
Charity Commissioner, for necessary disciplinary or penal
action under the Bombay Public Trusts Act, 1950;
(k) acquire or purchase lands or buildings
required for the purpose of development and carrying out
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schemes of the Trust and to carry out the objectives or
purposes of the Trust;
(l) disseminate and propogate useful
knowledge about the life, activities, leelas and teachings of
Shri. Sai Baba, and maintain and expand the library of
Shri. Sai literature;
(m) organise or undertake activities or
programmes aimed at promoting the feelings of
brotherhood, unity, faith and equality among the devotees
of Shri Sai Baba;
(n) promote or help secular education of all
types and establish educational institutions at Shirdi, or
other places;
(o) promote any other noble cause aimed at
achieving human well being or, to help human beings in
calamities.
(3) No immovable property vested in the Trust
shall be leased for more than a year, or mortgaged, sold or
otherwise alienated, by the Committee, except with the
previous sanction in writing of the State Government.
(4) No jewelleries, ornaments and other valuable
movable property vested in the Trust, the value of which is
more than fifty thousand rupees, shall be sold, pledged or
otherwise alienated by the Committee, except with the
previous sanction in writing of the State Government.
(5) The Committee shall have no power to borrow
money from any person or party, except with the previous
sanction in writing of the State Government.
(6) Subject to the provisions of this Act, the
Committee shall have all the power necessary for
performing its duties and functions under this Act."
118 A perusal of all the provisions reproduced above
would indicate that for the purpose of the management of the
Sansthan Trust, a Committee to be called as Shree Sai Baba
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Sansthan Management Committee shall be constituted by the
State Government as provided in sub-section (2) of section 5.
Thus, the Committee shall have a Chairman, Vice-Chairman and
not more than 15 other members. The first proviso says that out
of the total number of members not less than one member shall be
a woman and one member shall be from the socially and
economically weaker sections. The second proviso says that out
of the total number of members, not less than eight members,
including the Vice-Chairman, shall be persons having educational
background with professional or specialised knowledge,
qualifications and practical experience in one or more of the fields
such as law, Business Management, Public Administration,
Engineering, Architecture, Public health, Medicine or Rural
Development. Sub-section (3) says that the president of the
Shirdi Nagar Panchayat shall be the ex-officio member of the
Committee.
119 We are of the opinion that considering the status of
the Saibaba Sansthan Trust, a Committee with wide
representation to diverse sections and fields is expected to be set
up by the law. Eventually, it manages the affairs of the Shree
Saibaba Sansthan Trust. The affairs have to be managed so as to
fulfill the object and purpose of the Act. The Management has to
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be better than earlier and the administration, governance and
control ought to be carried out in such manner as would enable
the Trust to undertake wider welfare activities for the public.
Similarly, as elaborated further, the development and
management of a important and popular Trust should not be
hampered or suffered by avoidable litigation, that there was a
necessity to make a special law. Once there is a re-constitution of
the Trust and the Act is enacted to provide for the efficient
management of the same by a Committee directly under the
supervision and control of the State Government, then, it is but
natural that persons of integrity, Character and eminence are
appointed. The persons to be appointed have to be
knowledgeable, qualified and experienced in varied fields. The
Committee has to perform diverse duties and functions. It is
evident from sub-section (1) of section 17 that subject to any
general or special orders of the State Government, it shall be the
duty of the Committee to manage the properties and affairs of the
Sansthan Trust efficiently, to make proper arrangement for the
conduct and performance of rituals, worship ceremonies and
festivals in the temple according to the custom and usage, to
provide necessary facilities and amenities to the devotees and to
apply the income of the Trust to the objects and purposes for
which the Trust is set up. The Committee shall, without prejudice
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to section 17(1) by sub-section (2) of section 17, inter alia,
organise or undertake activities or programmes aimed at
promoting the feelings of brotherhood, unity, faith and equality
among the devotees of Shri. Saibaba. It shall promote or help
secular education of all types and establish educational
institutions at Shirdi or other places. It shall promote any other
noble cause aimed at achieving human well being or, to help
human beings in calamities. Therefore, we emphasise that the
Committee must be broadbased and truly representative. It must
have a woman and a representative of the socially and
economically weaker sections so also persons of the category set
out in the second proviso to section 5(2) of the Act, all of whom
would act so as to discharge the obligations and perform duties of
the Committee and exercise the powers towards that end. Shree
Saibaba is worshiped by all communities cutting across caste,
creed, sex, religion, language and place of residence. It is
common ground that devotees visiting the temple are from India
and abroad. All, namely, reach or poor, residing in the city or
village, slum or villa throng the temple. It is open to all. In such
circumstances, the State has been conferred with enormous
power, which is coupled with a duty. Equally, the Committee
exercises the powers vesting in it to fulfill a corresponding duty.
None can seek appointment as a member of the Committee and
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much less as of right. The State has to make the appointment, but
consistent with the object and purpose sought to be achieved by
the Act. The power to appoint the member has to be exercised in
such manner that the law is not breached or contravened.
Therefore, political affiliations and financial or other association
of a similar nature are out of place. The State Government cannot
appoint a political party worker, particularly the ruling one or
any follower or group or alliance member. Equally, none can be
appointed because he has lot of financial power or strength or is a
business associate of a influential political leader. That cannot be
the criteria in selecting the members. A person may be a member
of a political party in power or in opposition, but otherwise
qualified and eligible, can be appointed. There is no quota nor any
reservation as such. The aim is obvious. The membership of the
Committee cannot be viewed as an appointment to a political
office or equated with the appointment on the Board of Directors
of a public sector corporation or body corporates. It is a social
obligation and which must be discharged with due respect and
reverence to Shree Saibaba and regard to the principles and
values derived from his life and his teachings. He enunciated the
spirit of fraternity, brotherhood, unity and secularism amongst
all. He did not differentiate or discriminate between his followers
or devotees and others. He treated all of them equally and his
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message of faith, trust and patience in fellow humans appeals to
all. Therefore, affiliation or association with the ruling party as
the sole consideration for appointment is expressly ruled out.
Though all politicians cannot be said to be undeserving and unfit,
it does not mean that only politicians can be appointed as
members. It also does not mean that only those close to
politicians or their relatives can be appointed. Therefore, a
person duly qualified, experienced, knowledgeable and honest so
also hard working from the fields enumerated in the proviso can
be appointed irrespective of whether he is close or opposed to any
political party. Thus, the appointments are not political nor can
the appointees be politicians alone. The appointment is apolitical.
We are of the opinion that this is a public office. For holding such
an office or post, the best have to be selected. The power to
appoint, therefore, has to be exercised fairly and reasonably. The
power to appoint cannot be exercised arbitrarily or at the whims
and fancies of the Government. The power to appoint has to be
exercised in accordance with the Act. The Act itself obliges the
State to appoint only those eligible for appointment. Firstly, a
person to be appointed as a member of the Committee shall be a
permanent resident of the State of Maharashtra and a devotee of
Shree Saibaba and shall, prior to his appointment as a member,
make a declaration in the prescribed form. A person shall be
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disqualified for appointment or for being a member, if he is
disqualified or invites a disqualification, as provided in section 9,
then, the State Government has to exercise its powers of removal,
conferred by sub-section (2) of section 9. Thus, the
disqualifications having been laid down and the power to removal
being conferred in the State Government would denote that this is
a peculiar office. It is held subject to the statute. It is an office in
terms of and under the statute. It is an appointment as a public
servant. It is an appointment so as to perform and discharge a
public duty. It is not to be confused with an appointment to a civil
post under the State Government. It is an appointment as
envisaged in and by the Act of 2004 and must, therefore, be in
accordance therewith. It is an appointment made only after the
person is found to be deserving and worthy of the trust and
confidence reposed in him by the State on behalf of all the
devotees and followers of Shree Saibaba. In making such
appointment, the State Government itself acts as a trustee. The
holder of the office is performing, as held above, a duty and
function under the Act. He must be, therefore, appointed in a
non-arbitrary, transparent and fair manner. The power to
appoint cannot be exercised so as to render the relevant
provisions of the statute redundant and nugatory. If the
appointments made are dehors the statute and for extraneous
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consideration or by applying the tests and factors which are
wholly irrational, then, depending upon the facts and
circumstances of each case, they can be interfered with in writ
jurisdiction.
120 Pertinently, it has not been argued by Mr. Dixit
learned senior counsel appearing for the State that the
appointments made to the Committee of Management and
challenged in this case are immune from such challenge. He does
not argue as an extreme proposition that the power to appoint,
exercised by the State is beyond judicial review. In the sense, the
exercise is incapable of being tested or scrutinised in this court's
writ jurisdiction. All that he would submit is that this power is
absolute in nature and it is entirely the discretion of the State to
appoint or not to appoint any person as a member of the
Committee. Mr. Dixit would submit that no guidelines can be laid
down by this court, save and except those enumerated in the Act
so as to control or influence the discretion of the State in making
appointments. The State Government, in its discretion, can form
an opinion about the fitness of a person for appointment as a
member of the Committee of Management unless the same is
vitiated by arbitrariness, unreasonableness and malafides. This
opinion of the State Government is beyond judicial review. In our
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opinion, no judicial review is permissible of the opinion recorded
by the State Government with regard to fitness or otherwise of
the person appointed as a member. The power of judicial review
cannot be equated with a power of appeal. It is not permissible for
this court in the garb of exercising the above power to substitute
its opinion and view with that of the State Government. However,
we hasten to clarify that so long as the State adheres to the
mandate of the law and follows a procedure consistent therewith
while making the appointments, then, this court cannot direct the
State to follow a particular procedure or method in addition or
substitution to what has been applied/followed by the State only
because that is better. This court cannot advise the State to
prescribe or follow a particular procedure.
121 To the above extent, we are in agreement with
Mr.Dixit. We are not expecting the State to go public in the sense
follow a procedure which it is obliged to follow in public
employment. It is not expected of the State to issue a public
notice, invite applications in prescribed form, appoint a selection
committee, shortlist the applicants for interview and thereafter
hold oral interviews. We are not expecting the State to follow
such an elaborate procedure. However, when the State records
an opinion about the ability, character or integrity of a particular
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person, in forming that opinion, the State is obliged to apply the
tests and standards evolved by the statute in this case. The
statute demands and in absolute terms that none, who is
disqualified or has incurred a disqualification can be a member. It
is the statute which demands that a committee must comprise of
men and women of character, integrity, knowledge, capability and
experience. It is not the court, which is prescribing any
standards, but the standards and tests are laid down in the
statute itself. If the Government decides not to appoint a
particular expert and from the fields set out in the second proviso
to section 5(2) of the Act, it may well do so, but it cannot appoint
a person who does not fulfill any of the qualifications and style
him as qualified or experienced and knowledgeable. The
appointee must be satisfying the tests and standards demanded of
him by the statute.
122 In this regard, we must outline the importance of
transparency, fairness and equality in State's action. Article 16
of the Constitution of India guarantees equality of opportunity in
matters of public appointment. We are of the opinion that this is
not an employment. However, as is always happening, Article 16
is understood as applicable only to public employment. It speaks
of equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
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123 In regard to the above, we must invite the attention of
all concerned to the language of Article 16 of the Constitution of
India, which, to our mind, with greatest respect to all, is missed
frequently. In fact, on very few occasions, one gets an
opportunity to refer to the plain words of clauses (1) and (2) of
Article 16. Both these clauses read as under:-
"ARTICLE 16. Equality of opportunity in matters
of public employment. - (1) There shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in
respect of, any employment or office under the State."
124 The ambit and scope of this Article [(clause (1) and
(2)] has been considered by the Hon'ble Supreme Court of India in
the case of Gazula Dasaratha Rama Rao vs. State of Andhra
Pradesh and Ors.2. The Constitution Bench of the Hon'ble
Supreme Court of India was considering a challenge to the
validity and legality of section 6 of the Madras Hereditary Village
Offices Act (3 of 1895). The argument was that section 6 is void
so far as it infringes the fundamental right of the petitioner before
the Hon'ble Supreme Court of India. An order was passed in
favour of respondent no. 4 in that petition, who was appointed as
Village Munsiff of newly constituted village Peravalipalem. The
2 AIR.1961 SC 564
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Hon'ble Supreme Court reproduced in para 2 sub-section (1) of
section 6 and then referred to the factual position, namely that all
hereditary village offices of the original village ceased to exist
under sub-section (1) of section 6. On the division of the village
into two villages, different offices were created. The office of
Village Munsif was filled up by the appointment of respondent
no.4. Respondent no. 4 to that petition was son of the Village
Munsif of the old village. The petitioner before the Hon'ble
Supreme Court was appointed by the Revenue Divisional Officer
as Village Munsif. From this order, the fourth respondent
preferred appeals to the Collector of Guntur. That appeal was
allowed and instead of the petitioner before the Hon'ble Supreme
Court, the fourth respondent was appointed as Village Munsif. A
further appeal was carried by the petitioner before the Hon'ble
Supreme Court from that order of the Collector to the Board of
Revenue. That appeal was dismissed. Thereafter, the State was
approached, but in that endeavor as well, the petitioner was
unsuccessful. Thereafter, he filed the writ petition and relied
upon clauses (1) and (2) of Article 16 of the Constitution of India.
In dealing with such a challenge, the Hon'ble Supreme Court held
as under:-
"(9) Article 14 enshrines the fundamental right of equality
before the law or the equal protection of the laws within
the territory of India. It is available to all, irrespective of
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whether the person claiming it is a citizen or not. Article
15 prohibits discrimination on some special grounds-
religion, race, caste, sex, place of birth or any of them. It is
available to citizens only, but is not restricted to any
employment or office under the State. Article 16 Cl. (1),
guarantees equality of opportunity for all citizens in
matters relating to employment or appointment to any
office under the State; and Cl. (2) prohibits discrimination
on certain grounds in respect of any such employment or
appointment. It would thus appear that, Art. 14
guarantees the general right of equality; Arts. 15 and 16
are instances of the same right in favour of citizens in
some special circumstances. Article 15 is more general
than Art. 16, the latter being confined to matters relating
to employment or appointment to any office under the
State. It is also worthy of note that Art. 15 does not
mention 'descent' as one of the prohibited grounds of
discrimination, whereas Art. 16 does. We do not see any
reason why the full ambit of the fundamental right
guaranteed by Art. 16 in the matter of employment or
appointment to any office under the State should be cut
down by a reference to the provisions in Part XIV of the
Constitution which relate to Service or to provisions in the
earlier Constitution Acts relating to the same subject.
These Service provisions do not enshrine any fundamental
right of citizens; they relate to recruitment, conditions and
tenure of service of persons, citizens or otherwise,
appointed to a Civil Service or to posts in connection with
the affairs of the Union or any State. The word 'State', be it
noted, has a different connotation in Part III relating to
Fundamental Rights: it includes the Government and
Parliament of India, the Government and Legislature of
each of the States and all local or other authorities within
the territory of India etc. Therefore, the scope and ambit
of the Service provisions are to a large extent distinct and
different from the scope and ambit of the fundamental
right guaranteeing to all citizens an equality of opportunity
in matters of public employment. The preamble to the
Constitution states that one of its objects is to secure to all
citizens equality of status and opportunity; Art. 16 gives
equality of opportunity in matters of public employment.
We think that it would be wrong in principle to cut down
the amplitude of a fundamental right by reference to
provisions which have an altogether different scope and
purpose. Article 13 of the Constitution lays down inter alia
that all laws in force in the territory of India immediately
before the commencement of the Constitution, in so far as
they are inconsistent with fundamental rights, shall to the
extent of the inconsistency be void. In that Article 'law'
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includes custom or usage having the force of law.
Therefore, even if there was a custom which has been
recognised by law with regard to a hereditary village office,
that custom must yield to a fundamental right. Our
attention has also been drawn to Cl. (4) of Art. 16 which
enables the State to make provision for the reservation of
appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
The argument is that this clause refers to appointments or
posts and further talks of inadequate representation in the
services, and the learned Advocate-General has sought to
restrict the scope of Cls. (1) and (2) of Art. 16 by reason of
the provisions in Cl. (4). We are not concerned in this case
with the true scope and effect of Cl. (4) and we express no
opinion with regard to it. All that we say is that the
expression 'office under the State' in Cls. (1) and (2) of Art.
16 must be given its natural meaning.
(10) We are unable, therefore, to accept the argument of
the learned Advocate-General that the expression 'office
under the State' in Art. 16 has a restricted connotation and
does not include a village office like that of Village Munsiff.
In M. Ramappa v. Sangappa, 1959 SCR 1167: (AIR 1958
SC 937) the question arose whether certain village offices
governed by the Mysore Villages Offices Act, 1908, were
offices of profit under the Government of any State within
the meaning of Art. 191 of the Constitution. This Court
held that the offices were offices of profit under the
Government and said:
"An office has to be held under someone for it is
impossible to conceive of an office held under no one.
The appointment being by the Government, the office to
which it is made must be held under it, for there is no
one else under whom it can be held. The learned
Advocate said that the office was held under the village
community. But such a thing is an impossibility for
village communities have since a very long time, ceased
to have an corporate existence."
125 Thus, the expression "office under the State" under
Article 16 cannot be construed narrowly. That would have to be
given its natural meaning.
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126 We do not think that anything contrary to the
principles laid down in this decision has been stated in later
decisions of the Hon'ble Supreme Court. Thus, this decision is
very much good and binding law.
127 When such is the principle laid down by the judgment
of the Hon'ble Supreme Court of India, then, it goes without saying
that the mandate of Article 14 of the Constitution of India has to
be fulfilled for every State action has to be informed by reason
and ought to be fair, transparent and non-discriminatory. In that
sense, Mr. Talekar is right in relying upon the judgment of the
Hon'ble Supreme Court of India in the case of Kumari Shrilekha
Vidyarthi vs. State of Uttar Pradesh3. While considering the
challenge to the order of the State of Uttar Pradesh determining
the appointments of the District Counsel/District Government
Pleaders, the Hon'ble Supreme Court had an occasion to consider
the ambit and scope of the powers of judicial review. This
judgment has been followed by the Hon'ble Supreme Court later
on and in that regard, our attention has been invited to the later
judgment in the case of State of Punjab and Anr. vs. Brijeshwar
Singh Chahal and Anr.4. Following Kumari Shrilekha Vidyarthi
(supra), the Hon'ble Supreme Court held as under:-
3 AIR 1991 537
4 2016(6) SCC 1
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"10. We are not sure whether a similar study has been
conducted qua the State of Punjab, but given the fact that
the number of Law Officers appointed by that State is also
fairly large, we will not be surprised if any such study
would lead to similar or even more startling results. The
upshot of the above discussion is that for a fair and
objective system of appointment, there ought to be a fair
and realistic assessment of the requirement, for otherwise
the appointments may be made not because they are
required but because they come handy for political
aggrandisement, appeasement or personal benevolence of
those in power towards those appointed. The dangers of
such an uncanalised and unregulated system of
appointment, it is evident, are multi-dimensional resulting
in erosion of the rule of law, public faith in the fairness of
the system and injury to public interest and
administration of justice. It is high time to call a halt to
this process lest even the right thinking become cynical
about our capacity to correct what needs to be corrected.
.....
17. We have not been able to persuade ourselves to accept
the view that even when the appointments are made to
offices heavily remunerated from the public exchequer the
same can or ought to remain unregulated. That is
particularly so when those appointed are expected by the
very nature of their appointment to discharge important
public function affecting not only State interest but the
quality of justice which the courts administer. There is in
the case of Punjab and Haryana not even a semblance of
any selection process in the matter of appointment of those
chosen for the job leave alone a process that is credible in
terms of its fairness and objectivity. The practice of
making appointments in disregard of what is expected of a
functionary sensitive to the demands of fairness and
equality of opportunity even when in vogue for long, runs
contrary to the true legal position settled by a long line of
decisions to which we shall presently refer. The dominant
purpose which ought to permeate any process of selection
and appointment, namely, "protection of public interest" in
courts by availing services of the most meritorious is
clearly defeated by the method that the States have been
following and continue to follow. What is regrettable is
that even after the pronouncements of this Court have
settled, the principles on which public authorities are
required to act while discharging their functions, the
States continue to harp on the theory that in the matter of
engagement of State counsel they are not accountable and
that the engagement is only professional and/or
contractual, hence, unquestionable. It is, in our view, too
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late in the day for any public functionary or Government to
advance such a contention leave along expect this Court to
accept the same. If a Government Counsel discharges an
important public function and if it is the primary duty of
those running the affairs of the Government to act fairly,
objectively and on a non-discriminatory basis, there is no
option for them except to choose the best at the Bar out of
those who are willing and at times keen to work as State
counsel. It is also their duty to ensure that the process by
which the best are selected is transparent and credible.
Abdicating that important function in favour of the
Advocate General of the State who, in turn, has neither the
assistance of norm or procedure to follow nor a mechanism
for assessment of merit will be self-defeating. We regret to
say that in the matter of appointment of State counsel, the
State of Punjab and Haryana have much to do to reform
the prevalent system which reform is in our opinion long
overdue.
.....
21. A similar sentiment was expressed by this Court in
E.P.Royappa v. State of T. N. (1974) 4 SCC 3 wherein this
Court declared that Article 14 is the genus while Article 16
is a specie and the basic principle which informs both these
Articles is equality and inhibition against discrimination.
Equally, declared this Court, was antithetic to
arbitrariness. The Court described equality and
arbitrariness as sworn enemies, one belonging to the rule
of law in a republic and the other to the whims and caprice
of an absolute monarch. Resultantly if an act is found to be
arbitrary, it is implicit that it is unequal both according to
political logic and constitutional law, hence violative of
Article 14 and if it affects any matter of public employment
it is also violative of Article 16. This Court reiterated that
Articles 14 and 16 strike at arbitrariness in State action
and ensure fairness and inequality of treatment.
.....
23. In Ramana Dayaram Shetty v. International Airport
Authority of India (1979) 3 SCC 489, this Court relying
upon the pronouncements of E. P. Royappa (supra) and
Maneka Gandhi v. Union of India (1978) 1 SCC 248 once
again declared that State action must not be guided by
extraneous or irrelevant considerations because that
would be denial of equality. This court recognised that
principles of reasonableness and rationality are legally as
well as philosophically essential elements of equality and
non-arbitrariness as projected by Article 14, whether it be
authority of law or exercise of executive power without the
making of a law. This Court held that State cannot act
arbitrarily in the matter of entering into relationship be it
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contractual or otherwise with a third party and its action
must conform to some standard or norm, which is in itself
rational and non-discriminatory.
.....
28. In Shrilekha Vidyarthi v. State of U. P. (1991) 1 SCC
212, which happens to be the first of these decisions, this
Court had an occasion to examine whether Government
Counsel in the districts are holders of an "office or post" or
such appointments are no more than professional
engagements like the one between a private client and his
lawyer. That case arose out of a challenge mounted by
Government Counsel who were engaged throughout the
State of Uttar Pradesh to handle civil, revenue or criminal
cases and whose services were en masse terminated by the
State only to be replaced by fresh appointments on the
basis of a new panel prepared for that purpose and
communicated to the District Magistrates concerned. On
behalf of the State, it was argued that the engagement of
Government counsel was nothing but a professional
engagement between a client and his lawyer with no public
element attached to it.
.....
37. In State of U. P. v. Johri Mal (2004) 4 SCC 714, a
three-Judge Bench of this Court had an occasion to deal
with somewhat similar question that arose once again in
relation to appointment of the Government lawyers in the
State of U. P. This Court reviewed the decisions earlier
delivered and ruled that public interest would be
safeguarded only when good and competent counsel are
appointed by the State. No such appointments should,
declared this Court, be made for pursuing a political
purpose or for giving some undue advantage to any
particular section. The State should replace an efficient,
honest and competent lawyer only when it is in a position
to appoint a more competent lawyer in his place, observed
this court. The following passage is apposite in this regard:
(SCC p. 736, para 44)
"44. Only when good and competent counsel are
appointed by the State, the public interest would be
safeguarded. The State while appointing the Public
Prosecutors must bear in mind that for the purpose of
upholding the rule of law, good administration of justice
is imperative which in turn would have a direct impact
on sustenance of democracy. No appointment of Public
Prosecutors or District Counsel should, thus, be made
either for pursuing a political purpose or for giving some
undue advantage to a section of the people. Retention of
its counsel by the State must be weighed on the scale of
public interest. The State should replace an efficient,
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honest and competent lawyer, inter alia, when it is in a
position to appoint a more competent lawyer. In such an
event, even a good performance by a lawyer may not be
of much importance. (emphasis supplied)"
.....
40. The question whether a fair, reasonable and non-
discriminatory method of selection should or should not be
adopted can be viewed from another angle also equally if
not more important than the need for preventing any
infringement of Article 14. The State Counsel appears for
the State Government or for public bodies who together
constitute the single largest litigant in our court system.
Statistics show that nearly 80% of litigation pending in the
courts today has State or one of its instrumentalities as a
party to it. The State Counsel/counsel appointed by public
bodies thus represent the largest single litigant or group
engaged in litigation. It is also undeniable that for a fair,
quick and satisfactory adjudication of a cause, the
assistance which the court gets from the Bar is extremely
important. It is at times said that the quality of judgment
or justice administered by the courts is directly
proportionate to the quality of assistance that the courts
get from the counsel appearing in a case. Our system of
administration of justice is so modelled that the ability of
the lawyers appearing in the cause to present the cases of
their respective clients assumes considerable importance.
Poor assistance at the Bar by counsel who are either not
sufficiently equipped in scholarship, experience or
commitment is bound to adversely affect the task of
administration of justice by the court. Apart from
adversely affecting the public interest which State Counsel
are supposed to protect, poor quality of assistance
rendered to the courts by State counsel can affect the
higher value of justice itself. A fair, reasonable or non-
discriminatory process of appointment of State counsel is
not thus demanded only by the rule of law and its
intolerance towards arbitrariness but also by reason of the
compelling need for doing complete justice which the
courts are obliged to do in each and every cause. The
States cannot in the discharge of their public duty and
power to select and appoint State counsel disregard either
the guarantee contained in Article 14 against non-
arbitrariness or the duty to protect public interest by
picking up the best among those available and willing to
work nor can the States by their action frustrate, delay or
negate the judicial process of administration of justice
which so heavily banks upon the assistance rendered by
the members of the Bar.
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41. To sum up, the following propositions are legally
unexceptionable:
41.1. The Government and so also all public bodies are
trustees of the power vested in them.
41.2. Discharge of the trust reposed in them in the best
possible manner is their primary duty.
41.3. The power to engage, employ or recruit servants,
agents, advisors and representatives must like any other
power be exercised in a fair, reasonable, non-
discriminatory and objective manner.
41.4. The duty to act in a fair, reasonable, non-
discriminatory and objective manner is a facet of the Rule
of Law in a constitutional democracy like ours.
41.5. An action that is arbitrary has no place in a polity
governed by Rule of Law apart from being offensive to the
equality clause guaranteed by Article 14 of the
Constitution of India.
41.6. Appointment of Government Counsel at the district
level and equally so at the High Court level, is not just a
professional engagement, but such appointments have a
"public element" attached to them.
41.7. Appointment of Government Counsel must like the
discharge of any other function by the Government and
public bodies, be only in a public interest unaffected by any
political or other extraneous considerations.
41.8. The Government and public bodies are under an
obligation to engage the most competent of the lawyers to
represent them in the courts for it is only when those
appointed are professionally competent that public
interest can be protected in the courts.
41.9. The Government and public bodies are free to choose
the method for selecting the best lawyers but any such
selection and appointment process must demonstrate that
a search for the meritorious was undertaken and that the
process was unaffected by any extraneous considerations.
41.10. No lawyer has a right to be appointed as a
State/Government Counsel or as Public Prosecutor at any
level, nor is there any vested right to claim an extension in
the term for which he/she is initially appointed. But all
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such candidates can offer themselves for appointment, re-
appointment or extension in which even their claims can
and ought to be considered on their merit, uninfluenced by
any political or other extraneous considerations.
41.11. Appointments made in an arbitrary fashion,
without any transparent method of selection or for
political considerations will be amenable to judicial review
and liable to be quashed.
41.12. Judicial review of any such appointments will,
however, be limited to examining whether the process is
affected by any illegality, irregularity or perversity/
irrationality. The Court exercising the power of judicial
review will not sit in appeal to reassess the merit of the
candidates, so long as the method of appointment adopted
by the competent authority does not suffer from any
infirmity."
128 We think that these observations are apposite and
would apply to the exercise of powers even in this case. We
cannot, therefore, accept any extreme argument that the power
of judicial review cannot be exercised in cases of the appointment
under the Act of 2004.
129 As we have held above, that is not even the stand of
the State, but it says, the power being absolute, the manner of its
exercise is beyond the pale of judicial review. This stand also was
then diluted and it was argued that no judicial review is
permissible of the opinion of the State about the fitness or
otherwise of a particular appointee/member. We think that the
said argument is addressed and answered by the Hon'ble
Supreme Court on the above lines. Therefore, if the case is that
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there is no opinion or satisfaction recorded by the State or the
discretion in recording of such opinion or satisfaction is vitiated
by total non application of mind or application of principles
wholly irrelevant and irrational or by irrelevant consideration or
the decision is so irrational that no reasonable person in the
position and vested with the power of appointment would arrive
at such conclusion, then, surely, the court can interfere.
130 Before we proceed further, we must also take care of
another argument of the State that there is a power conferred in
the State to make appointment and no specific guidelines are
necessary for exercise of that power. Alternatively and without
prejudice, it is argued that the Act and the Rules lay down the
broad guidelines and it is not mandatory that the State must
make appointment for every category. The State may not and for
bonafide reasons include any person from the category
enumerated in the second proviso as also the Rules. This is not a
case where the State has not chosen to appoint a person from a
particular category and none is forcing the State to do so. This is
a case where the complaint is that the State has made
appointments of persons as members who do not fulfill the
eligibility criteria nor that criteria has been applied objectively to
them. It is in considering this argument that we are obliged to
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refer to the Rules and thereafter the Form, which is highlighted
by Mr. Talekar.
131 Once we have to be mindful and apply only these
principles, then, all that we must consider is whether the State in
making the appointments of respondent nos. 4 to 15 has adhered
to them and the statute in question.
132 We must dispose of one more contention of Mr. Dixit
that clause (f) of sub-section (1) of section 9 insofar as it employs
the words "or is otherwise unfit" must be construed in the light of
and with reference to the words preceding the same. In other
words, we must apply the rule of "ejusdem generis". He would
submit that we should not expand the language of the clause to
such an extent as is urged by Mr. Talekar, because that will make
the statute unworkable. In other words, Mr. Dixit would submit
that the expansive interpretation of the provision must be
avoided. Thus, the submission is that a meaning should not be
ascribed or attributed which was never intended by the law
makers.
133 After giving our careful consideration to the rival
contentions on this point, we are unable to agree with Mr. Dixit.
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The rule of ejusdem generis has been considered in several
decisions of the Hon'ble Supreme Court and in the case of
Maharashtra University of Health Sciences and Ors. vs.
Satchikitsa Prasarak Mandal and Ors.5, the Hon'ble Supreme
Court once again considered the rule of ejusdem generis. Before
reproducing the relevant paragraphs, we must indicate in precise
terms as to how the rule was considered and held to be
inapplicable to the following definition, which fell for
interpretation in the above case. The definition of the term
'teachers' appearing in section 2 clause (35) of the Maharashtra
University of Health Sciences Act, 1998 reads as under:-
"2(35) 'teachers' means full time approved demonstrators,
tutors, assistant lecturers, lecturers, readers, associate
professors, professors and other persons teaching or
giving instructions on full-time basis in affiliated colleges
or approved institutions in the University"
134 The Hon'ble Supreme Court in the above case, held as
under:-
"26. This Court is constrained to observe that the Hon'ble
High Court has not properly appreciated the principle of
ejusdem generis in understanding the scope of Section
2(35) read with Section 53 of the Act.
27. The Latin expression "ejusdem generis" which means
"of the same kind or nature" is a principle of construction,
meaning thereby when general words in a statutory text
are flanked by restricted words, the meaning of the general
words are taken to be restricted by implication with the
meaning of the restricted words. This is a principle which
arises "from the linguistic implication by which words
5 (2010) 3 SCC 786
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having literally a wide meaning (when taken in isolation)
are treated as reduced in scope by the verbal context". It
may be regarded as an instance of ellipsis, or reliance on
implication. This principle is presumed to apply unless
there is some contrary indication [see Glanville Williams,
The Origins and Logical Implications of the Ejusdem
Generis Rule, 7 Conv (NS) 119].
28. This ejusdem generis principle is a facet of the
principle of noscitur a sociis. The Latin maxim noscitur a
sociis contemplates that a statutory term is recognised by
its associated words. The Latin word "sociis" means
"society". Therefore, when general words are juxtaposed
with specific words, general words cannot be read in
isolation. Their colour and their contents are to be derived
from their context. (See similar observations of Viscount
Simonds in Attorney General v. Prince Ernest Augustus of
Hanover 1957 AC 436, AC at p. 461)
29. But like all other linguistic canons of construction, the
ejusdem generis principle applies only when a contrary
intention does not appear. In the instant case, a contrary
intention is clearly indicated inasmuch as the definition of
"teachers" under Section 2(35) of the said Act, as pointed
out above, is in two parts. The first part deals with
enumerated categories but the second part which begins
by the expression "and other" envisages a different
category of persons. Here "and" is disjunctive. So, while
construing such a definition the principle of ejusdem
generis cannot be applied.
30. In this context, we should do well to remember the
caution sounded by Lord Scarman in Quazi v. Quazi 1980
AC 744. At p. 916 of the Report, the learned Law Lord
made this pertinent observation: (AC p. 824 A)
"If the legislative purpose of a statute is such that a
statutory series should be read ejusdem generis, so be it;
the rule is helpful. But, if it is not, the rule is more likely
to defeat than to fulfil the purpose of the statute. The
rule, like many other rules of statutory interpretation, is
a useful servant but a bad master."
31. This Court while construing the principle of ejusdem
generis laid down similar principles in Kavalappara
Kottarathil Kochuni v. State of Madras AIR 1960 SC
1080. A Constitution Bench of this Court in Kochuni
(supra) speaking through Subba Rao, J. (as His Lordship
then was) opined: (AIR p. 1103, para 50)
"50. ..... The rule is that when general words follow
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particular and specific words of the same nature, the
general words must be confined to the things of the
same kind as those specified. But it is clearly laid down
by decided cases that the specific words must form a
distinct genus or category. It is not an inviolable rule of
law, but is only permissible inference in the absence of
an indication to the contrary. (emphasis supplied)"
32. Again this Court in another Constitution Bench
decision in Amar Chandra Chakraborty v. Collector of
Excise (1972) 2 SCC 442, speaking through Dua, J.
reiterated the same principles in para 9, at p. 1868 of the
Report. On the principle of ejusdem generis, the learned
Judge observed as follows: (SCC p. 447, para 9)
"9. ..... The ejusdem generis rule strives to reconcile the
incompatibility between specific and general words.
This doctrine applies when (i) the statute contains an
enumeration of specific words; (ii) the subjects of the
enumeration constitute a class or category; (iii) that
class or category is not exhausted by the enumeration;
(iv) the general term follows the enumeration; and (v)
there is no indication of a different legislative intent."
33. As noted above, in the instant case, there is a
statutory indication to the contrary. Therefore, where
there is statutory indication to the contrary the definition
of teacher under Section 2(35) cannot be read on the basis
of ejusdem generis nor can the definition be confined to
only approved teachers. If that is done, then a substantial
part of the definition under Section 2(35) would become
redundant. That is against the very essence of the
doctrine of ejusdem generis. The purpose of this doctrine
is to reconcile any incompatibility between specific and
general words so that all words in a statute can be given
effect to and no word becomes superfluous (see
Sutherland: Statutory Construction, 5th Edn., p. 189, Vol.
2-A).
34. It is also one of the cardinal canons of construction
that no statute can be interpreted in such a way as to
render a part of it otiose. It is, therefore, clear where there
is a different legislative intent, as in this case, the principle
of ejusdem generis cannot be applied to make a part of the
definition completely redundant."
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135 In the case of Manganese Ore India Limited vs. State
of Madhya Pradesh and Ors.6, the other rule noscitur a sociis was
considered by the Hon'ble Supreme Court as a facet of the rule of
ejusdem generis. In the later decision, the Hon'ble Supreme Court
held as under:
"20. We are absolutely conscious that noscitur a sociis rule
is not applied when the language is clear and there is no
ambiguity, which according to us does exist and is
perceptible in the Explanation in question. A very broad
and a wide definition of the term "processing" if applied,
would include manufacture of a new or distinct product.
Manufacture normally involves a series of processes either
by hand or machine. If a restricted construction is not
applied it would create and give rise to unacceptable
consequences. It is not the intent to treat and regard
manufacturing activities as processing. Manufacturing, as
is understood, means a series of processes through
different stages in which the raw material is subjected to
change by different operations. (For difference between
process and manufacturing see CIT v. Tara Agencies
(2007) 6 SCC 429, Orient Paper and Industries Ltd. v.
State of M. P. (2006) 12 SCC 486 and Aspinwall & Co. Ltd.
v. CIT (2001) 7 SCC 525."
136 If we accept the argument of Mr. Dixit, it would be
ignoring the plain language of the statute and the placement of
the words after the word "or" in clause (f). Pertinently, the first
part of clause (f) deals with a person who will be held to be
disqualified for appointment or for being a member if he is guilty
of misconduct. The later part of the clause is separated by the
word 'or' and deals with a person who would be disqualified if he
has been charge-sheeted for the offence involving moral
6 (2017) 1 SCC 81
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turpitude. Thus, the first part of the clause deals with a case of
proven misconduct. In the sense, in disciplinary proceedings or
otherwise for determining the misconduct, the guilt is established
and proved. The second part is not dealing with a person who has
been convicted or held guilty but against whom a charge sheet
has been laid in the competent criminal court for the offence
involving moral turpitude. Thus, even filing a charge-sheet and
naming a person therein as an accused in relation to an offence
involving moral turpitude would disqualify him for appointment
as a member. The third disqualification is if the person is
otherwise found to be unfit. The word 'unfit' has a meaning
beyond physical condition. Thus, a person may be physically
unfit, but the unfitness contemplated by this clause goes beyond
it. It concerns the person's suitability. If he is unsuitable and
found to be such, then, he cannot be appointed for he is
disqualified. A person may be found unsuitable even if he has not
been held guilty of misconduct or there is no charge-sheet for the
offence involving moral turpitude pending against him in any
competent court. The unsuitability for appointment is to be
determined having regard to the general demeanor, conduct and
action of a person. If that does not meet the normal and expected
standards of human behaviour, then, he must be held to be unfit.
None should find any reservation in dealing with him.
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137 Legally, this word has been understood as unsuitable,
not fit for some purpose, action or end, to do something or to be
done something to, not qualified (See Advanced Law Lexicon by P.
Ramnatha Aiyar, 3rd Edition Reprint 2007). In the case of
Assanmal Cooverjimal vs. Somimal and Ors.7, a learned Single
Judge of the High Court of Sindh has held that "unfit" does not
only mean physically unfit. The word has been held to mean
something more than physical incapacity. The learned Judge
held as under:-
" .....
We are therefore thrown back on the section itself and
have to consider what the section read by itself, was
intended to mean. Now it seems that, if we read the section
by itself, it cannot be held that "unfit" must necessarily
mean "physically unfit." If we take the words "unfit or
personally incapable" they seem to refer to two alternative
cases, for instance, a man may be "personally incapable" if
he is obliged to live in some town other than the place
where work of the trust is to be done. It does not follow
from the words "personally incapable" that they
necessarily refer only to the case of a person who is
physically incapable. But if one takes this view then there
is no reason to hold that unfit must be ejusdem generis
with "incapable" and must refer only to persons who are
physically incapable or physically incapable to some
extent. It may well be that the intention of the use of the
word "unfit" was to meet cases such as those now under
consideration, namely where there is alleged to be a case of
breach of trust; while "personally incapable" would cover
cases such as those of a man who is blind or partially blind,
or "incapable" in the sense that his work prevents him
from acting as a trustee by obliging him to live away from
the scene where the trust work is to be done.
It has been contended that S. 73 should not apply in a
case of this character because no appeal lies from an order
passed under S. 74 and that it is more suitable in the case
of removal of a trustee that an appeal should lie in such a
7 AIR 1930 Sind 41
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case. But there is a distinction, namely, that under S. 74 it
is only a case of removal of a trustee whereas if a suit is
filed a delinquent trustee can be called upon to make good
the loss resulting from the breach of trust. As indicated
above, this point for the purpose of the present case seems
to me to be really obiter dictum because on the first ground
stated above an application in this instance will lie under S.
74. But so far as any finding on the second point is
necessary, I am of opinion that the word "unfit" may be
interpreted not merely as physically incapable, for
instance, partially blind or partially paralysed, but also a
covering a case such as that now under consideration in
which the applicant contends that there has been a breach
of trust on the part of the trustee.
....."
138 A more clear enunciation comes in a judgment in the
case of Jalil and Ors. vs. The Emperor8. The issue was whether
the unfitness of a surety for good behaviour referred to in section
122 of the then Cr. P. C. (Cr. P. C. 1898) is confined to pecuniary
unfitness or something more. In resolving this issue of the
meaning to be given to this term, the Hon'ble Bench held as
under:-
"WOODROFFE, J. - In this case the Magistrate says that in
his opinion the sureties appear to be unfit. This is a case of
sureties for good behaviour.
Sec. 122. Cr. P. C., says that a Magistrate may refuse
to accept any surety for good behaviour offered under this
Chapter on the ground that, for reasons to be recorded by
the Magistrate, such surety is an unfit person. The
Magistrate therefore has to determine in each case
whether a person offered as surety is a fit or unfit person:
and as regards this matter, the Legislature has given him a
discretion. The Legislature has not particularised any kind
of unfitness. It has left the matter to the discretion of the
lower Court though this Court will in each case consider,
according to its own circumstances, whether the order
8 The Calcutta Weekly Notes, Vol. XIII p. 80
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passed by the Magistrate is a reasonable order to make or
not.
.....
GEIDT, J. - I agree. I am unable to acceded to the
contention of the learned pleader who has appeared for the
Petitioner that the word "unfit" in sec. 122, Cr. P. C., has
reference only to the pecuniary position of the person who
offers himself as surety. The word "unfit" does not, in
ordinary language, connote that idea. If we look at sec.
513, Cr. P. c., we find that whereas in an ordinary case a
Magistrate may accept a deposit of money in place of a
surety, an exception is made where a person is called on to
furnish surety for good behaviour. In my opinion, the
unfitness referred to in sec. 122, Cr. P. C., though it may
not exclude the idea of pecuniary unfitness is more
concerned with the idea of moral unfitness. I therefore
agree with the order proposed by my learned brother."
139 Hence, the term has not been understood, much less
interpreted as meaning only physical unfitness. The context and
the backdrop in which this word is inserted in the clause indicates
that it is for the State to determine as to whether a particular
person who may not be guilty of misconduct or may not be
charge-sheeted is otherwise unfit. The State Government would
have to determine this aspect of the matter and it cannot leave it
to the police authorities or any verification done by them of the
person's criminal antecedents pursuant to which they forward a
report to the State Government. The police may have a particular
view in mind of the person's conduct and behaviour by taking into
consideration pendency of any complaint or criminal cases
against him. Therefore, it may forward a report giving a clean-
chit to that person in the sense the report may conclude that
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there are no criminal antecedents. However, as is rightly urged
before us, the matter cannot rest there. Merely because of the
opinion of the police machinery that the person has no criminal
background that does not mean he is necessarily fit for being
appointed as a member. If that is the perception of the State
Government and voiced before us very strenuously, that is
patently erroneous and wrong. That should be borne out by the
plain and clear language of the statute. The State is obliged to
determine the issue of unfitness with reference not merely to
pendency of criminal cases or charge-sheets or findings of
misconduct, but must take into consideration the physical fitness
and other matters as well. Merely because a person is physically
fit does not mean that he is not otherwise unfit. We do not wish to
exhaustively lay down the parameters of unfitness. All that we
are emphasising is that a person may not be found guilty of
misconduct and equally there may not be any charge-sheet filed
against him for an offence involving moral turpitude, still,
there could be facets and aspects about his personality, conduct
and behaviour in the society, which would make him otherwise
unfit. He may not be morally fit to occupy the position. When one
speaks of candidates possessing merit, that merit does not mean
achievements in terms of obtaining marks at the exam, high rank
and academic qualifications. Here, merit denotes excellence in
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the field. In order to be qualified for being appointed as a member
of the Committee of management, a person should not only be
academically qualified, but must possess such qualities as would
render him able and fit for being appointed. There could be many
situations in which a person may be found to be otherwise unfit.
The administrators and decision makers can very well conceive of
such situations. The administrators and the executive
functionaries being experienced and well-versed with the modern
world can gauge for themselves as to whether a particular person
is otherwise unfit. They may make inquiries and investigations
for themselves. They may derive inputs from varied sources.
They can form their independent opinion about a person's
unfitness and for reasons other than his not being guilty of any
misconduct or there being no allegations against him of
committing any offence involving moral turpitude. Those in-
charge of making appointments, implementing and enforcing the
law are expected to take decisions which may not be to the liking
of their political masters necessarily. They may have to overrule
these masters and make recommendations and record opinion
fearlessly. That is what is expected from them. They should not
appoint unqualified and morally unfit persons on the Committee
or recommend their names for appointment or endorse their
candidature merely to please their political masters. Eventually,
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the inquiries and investigations held by them ought to enable
them to record such opinions as are expected of them. If their
opinions are then tested before a court of law, it is for the court to
decide whether they are wrong or erroneous or vitiated by
extraneous considerations. So long as there is a power conferred
in the executive machinery to decide whether a person is
otherwise unfit, then, they are expected to exercise that power
and not surrender their discretion to their political masters or
bosses. That would not be conducive to enforce a law as
comprehensive as the instant enactment. We are, therefore, of
the opinion that the issue of person's fitness must be decided
independent of his exoneration or non-involvement in
disciplinary or criminal proceedings or the like. A distinct
consideration must guide the authorities in ariving at the
conclusion whether he is otherwise unfit. Their view and opinion
cannot be restricted to the matters contained in the police
verification report. They must go and travel beyond the same.
They may be guided by it, but that is not decisive and conclusive,
leave alone binding on them. Thus, the police machinery cannot
control the exercise of their independent power and discretion.
This discretionary power must be exercised judiciously, fairly and
not arbitrarily.
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140 If we do not place this interpretation on the words
employed by the legislature, we would be treating them as
surplusage. No word in a statute should be treated as waste or
surplusage. Every word is inserted with a definite intent, object
and purpose. If its meaning is plain, unambiguous and clear and
so is the language, then, it is the bounden duty of the court to give
effect to it. We, therefore, cannot, in the garb of applying the rule
of noscitur asociis or ejusdem generis ignore and brush aside the
plain language of the statute.
141 There is another way of looking at this matter. The
expression "or otherwise" has also a definite legal connotation
and meaning. In a decision of the Hon'ble Supreme Court, in the
case of Smt. Lila Vati Bai vs. State of Bombay 9, a five Judge Bench
of the Hon'ble Supreme Court was considering the ambit and
scope of the words "or otherwise". These words were appearing
in an Explanation inserted for the purpose of section 6 of the
Bombay land Requisition Act, 1948. That section read as under:-
"6. (1) If any premises situate in an area specified by the
State Government by notification in the Official Gazette,
are vacant on the date of such notification and wherever
any such premises are vacant or become vacant after such
date by reason of the landlord, the tenant or the sub-
tenant, as the case may be, ceasing to occupy the premises
or by reason of the release of the premises from requisition
or by reason of the premises being newly erected or
reconstructed or for any other reason the landlord of such
9 AIR 1957 SC 521
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premises shall give intimatiion thereof in the prescribed
form to an officer authorised in this behalf by the State
Government.
.....
(4) Whether or not an intimation under sub-section (1) is
given and notwithstanding anything contained in S. 5, the
State Government may by order in writing-
(a) requisition the premises for the purpose of the
State or any other public purpose and may use or deal with
the premises for any such purpose in such manner as may
appear to it to be expedient, or
.....
Provided that where an order is to be made under
clause (a) requisitioning the premises in respect of which
no intimation is given by the landlord, the State
Government shall make such inquiry as it deems fit and
make a declaration in the order that the premises were
vacant or had become vacant, on or after the date referred
to in sub-section (1) and such declaration shall be
'conclusive evidence' that the premises were or had so
become vacant:
.....
Explanation - For the purposes of this section, -
(a) premises which are in the occupation of the
landlord, the tenant or the sub-tenant, as the case may be,
shall be deemed to be or become vacant when such
landlord ceases to be in occupation or when such tenant or
sub-tenant ceases to be in occupation upon termination of
his tenancy, eviction, assignment or transfer in any other
manner of his interest in the premises or otherwise,
notwithstanding any instrument or occupation by any
other person prior to the date when such landlord, tenant
or sub-tenant so ceases to be in occupation;
....."
142 The argument before the Hon'ble Supreme Court was
as to whether the Explanation can be applied to a case where
there is no termination, eviction, assignment or transfer. Hence,
there was, in law, no vacancy. The Hon'ble Supreme Court
considered the challenge to the declaration by the Government
that there was a vacancy. In answering this contention, the
Hon'ble Supreme Court held as under:-
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".....
(11) As an offshoot of the argument that we have just been
examining it was contended on behalf of the petitioner that
Explanation (a) to S. 6 quoted above contemplates a
vacancy when a tenant (omitting other words not
necessary) "ceases to be in occupation upon termination of
his tenancy, eviction, or assignment or transfer in any
other manner of his interest in the premises or otherwise".
The argument proceeds further to the effect that in the
instant case admittedly there was no termination, eviction,
assignment or transfer and that the words "or otherwise"
must be construed as ejusdem generis with the words
immediately preceding them: and that therefore on the
facts as admitted even in the affidavit filed on behalf of the
Government there was in law no vacancy. In the first
place, as already indicated, we cannot go behind the
declaration made by the Government that there was a
vacancy. In the second place, the rule of ejusdem generis
sought to be pressed in aid of the petitioner can possibly
have no application. The Legislature has been cautious
and thorough-going enough to bar all avenues of escape by
using the words "or otherwise". Those words are not
words of limitation but of extension so as to cover all
possible ways in which a vacancy may occur. Generally
speaking, a tenant's occupation of his premises ceases
when his tenancy is terminated by acts of parties or by
operation of law or by eviction by the landlord or by
assignment or transfer of the tenant's interest. But the
Legislature, when it used the words "or otherwise",
apparently intended to cover other cases which may not
come within the meaning of the preceding clauses, for
example, a case where the tenant's occupation has ceased
as a result of trespass by a third party. The Legislature, in
our opinion, intended to cover all possible cases of vacancy
occuring due to any reasons whatsoever. Hence, far from
using those words ejusdem generis with the preceding
clauses of the explanation, the Legislature used those
words in an all inclusive sense. No decided case of any
court, holding that the words "or otherwise" have ever
been used in the sense contended for on behalf of the
petitioner, has been brought to our notice.
(12) On the other hand, by way of illustration of decisions
to the contrary may be cited the case of Skinner & Co. v.
Shew and Co. (1983) 1 Ch 413 (K). In that case the Court
of Appeal had to consider the words of S. 32 of the Patents,
Designs and Trade Marks Act, 1883 (46 & 47 Vict. c. 57),
to the following effect:-
"Where any person claiming to be the patentee of any
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invention, by circulars, advertisements or otherwise
threatens any other person with any legal proceedings
...."
Their Lordships repelled the contention that the words
"or otherwise" occurring in that section had to be read
ejusdem generis with "circulars", and "advertisements".
They observed that by so doing they will be cutting down
the intendment of the provisions of the statute when
clearly the words "or otherwise" had been used with a
contrary intention. The rule of ejusdem generis is
intended to be applied where general words have been
used following particular and specific words of the same
nature on the established rule of construction that the
Legislature presumed to use the general words in a
restricted sense; that is to say, as belonging to the same
genus as the particular and specific words. Such a
restricted meaning has to be given to words of general
import only where the context of the whole scheme of
legislation requires it. But where the context and the
object and mischief of the enactment do not require such
restricted meaning to be attached to words of general
import, it becomes the duty of the Courts to give those
words their plain and ordinary meaning. In our opinion,
in the context of the object and the mischief of the
enactment there is no room for the application of the
rule of ejusdem generis. Hence it follows that the
vacancy as declared by the order impugned in this case,
even though it may not be covered by the specific words
used, is certainly covered by the legal import of the
words "or otherwise"."
143 This decision was then followed by a Division Bench of
this court in a decision in the case of Vinayakrao s/o. Ganpatrao
Pimpalapure vs. the State of Maharashtra10. The Hon'ble Division
Bench held as under:-
"..... Therefore, it is necessary to consider the provisions of
Section 31 of the Act which we have already reproduced.
Section 31 clearly lays down that no holding allotted under
this Act or any part thereof shall be transferred whether
by way of sale or by way of gift, exchange or lease or
otherwise except in accordance with such condition as
may be prescribed. It was contended that the agreement of
10 AIR 1976 Bombay 10
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sale which was entered into by the petitioner was neither a
sale nor a gift, exchange or lease and, therefore, provisions
of Section 31, are not attracted. It was also contended that
the word "otherwise" should be interpreted as a
transaction of like nature. On that basis it was urged that
agreement of sale, even though in the instant case
possession was given to the transferee, was not a
transaction of a like nature like a sale or by way of gift,
exchange or lease. We are unable to accept the submission
urged on behalf of the petitioner. The opening part of
Section 31 states "notwithstanding anything contained in
any law for the time being in force, no holding allotted
under this Act, nor any part thereof, shall be transferred".
The instances of transfer are stated in Section 31 of the
Act. However, they are not exhaustive and for showing
that there may be some other transfers besides the
instances of transfers stated, in our opinion, the word
"otherwise" has been used.
6. Section 9, sub-clause (1) of the Act which we have
reproduced shows that the transfer or partition of any land
contrary to the provisions of this Act shall be void.
Reading these provisions, it appears to us that once a
holding is allotted to an agriculturist after following the
provisions of the Bombay Prevention of Fragmentation and
Consolidation of Hldings Act, 1947, then that holding
cannot be transferred except in accordance with such
conditions as may be prescribed in the Act. In the instant
case, it is seen that the petitioner transferred possession of
Unit No. 50 to the transferee on the date of the agreement
of sale entered into between him and the transferee. On
that day, the transferor i.e. the petitioner received the
whole consideration from the transferee, namely,
Rs.22,830/-. What was left to be done was only to execute
a document of sale in favour of the transferee by the
petitioner. This kind of transaction is covered under
Section 31 of the Act, which prohibits transfer and which
is of "otherwise" nature. In the instant case, the word
"otherwise" in our opinion, has been given an extended
meaning to include the above mentioned transaction and
other transactions which are not covered by either sale,
mortgage, lease, gift, exchange but in which there is a
transfer of the holding."
144 We do not wish to multiply the decisions. Suffice it to
say that wherever such words or expressions are used or
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employed, the same are not held as necessarily restrictive. The
word or expression would have to be given its meaning bearing in
mind the object and purpose sought to be achieved by the
particular statute or enactment and its subject. The Hon'ble
Supreme Court has, in a more recent decision in the case of
United Bank of India vs. Pijush Kanti Nandy and Ors. 11, given a
restrictive meaning to this expression, but highlighted and
emphasised that the particular statute or the rule demanded such
interpretation and that is why it was placed. Else, the Hon'ble
Supreme Court always held that this word or expression (or
otherwise) is not necessarily restrictive or exhaustive of the
cases referred in a particular provision (for example see para 70
of the decision of the Hon'ble Supreme Court in the case of M. V.
Elisabeth and Ors. vs. Harwan Investment and Trading Pvt. Ltd.
And Ors.12).
145 It is, therefore, imperative for us to consider as to
whether the State was mindful and paid attention to this part of
the clause in arriving at its opinion that respondent nos. 4 to 15
were not otherwise unfit for appointment. In that regard, we
would proceed to refer to the view or opinion of the State
respondent-wise.
11 (2009) 8 SCC 605
12 AIR 1993 SC 1014
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146 Apart from a general assertion in the affidavit in reply
filed by the State in this petition, what this affidavit states and
with reference to this issue is that firstly, there is no challenge
raised in this petition to the rules. Secondly, the State
Government has made the appointments of members only after
receiving the police reports and by examining that any of the
members has not been convicted or charge-sheeted by a court of
competent jurisdiction for an offence involving moral turpitude.
It is asserted that the entire process of nomination/appointment
is completed in strict adherence to the legal provisions. There is a
denial in para 17 of the statements made in the petition.
However, a perusal of this affidavit leaves us in no manner of
doubt that the State has not taken into consideration anything
other than the police report. Hence, we have not been shown any
materials by the State which would meet the objections of the
petitioners to the appointments.
147 The petitioners' specific allegations against these
respondents are that they are otherwise unfit, meaning thereby
unsuitable, unqualified and morally unfit for the post. Some of
these respondents have managed to secure appointments by their
political connection alone. These are indeed serious allegations
and the proximity of these appointees/members to political
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leaders has been specifically set out with reference to political
parties in power. These allegations may have been denied by
private parties. However, their denials cannot be conclusive. The
denials are restricted to political affiliations or connections, but
there are other aspects raised and which, according to the
petitioners, make these appointees unfit for the post. We do not
think that there are any materials which would satisfy us that the
State has considered candidates' suitableness and unfitness by
going beyond the police report or the aspect of his/her proven
guilt or pendency of charge-sheet against him/her in competent
criminal court involving offence of moral turpitude. This is clear
from the State's affidavit. Mr. Dixit would like us to peruse the
police reports and we have perused them with his assistance. The
police report only indicates that there are no criminal cases
pending or if they were pending, they are now withdrawn or in
any event they are not involving offence of moral turpitude.
Beyond that, the police report or the verification by the police is
of no assistance.
148 The important aspect of the matter highlighted by us
has clearly missed the State's attention. It is no justification for
non-consideration of the unfitness or non-consideration of this
aspect that all the appointees have a clear and clean police
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record. Hence, they cannot be termed as otherwise unfit is the
argument. That fails to impress us for the reasons which we have
recorded above.
149 If there are definite materials brought to the notice of
the authorities during the proceedings in this court and by way of
affidavits, then, we would expect the State to consider the legality
and validity of the appointments of some of the respondents in
the light of the clear stipulation in clause (f) of sub-section (1) of
section 9 of the Act. Even now, it is open to the State to take a
call. We say this because of a very important subsequent
development. It was brought to our notice during the pendency of
this litigation by Mr. Dixit learned senior counsel, that one of the
members Mr. Sachin Tambe has tendered his resignation and his
appointment on the committee has come to an end after the State
accepted it. The State accepted his resignation because the
record would indicate that he tendered it in the wake of some
serious allegations made against him by the present petitioners.
The allegations made by them may pertain to filing of a charge-
sheet against him for offences involving moral turpitude, but
what we find is that given their serious nature, the State was
relived of its obligation and duty to consider the legality and
validity of Mr. Tambe's appointment again. Rather he relieved
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the State from fulfillment of this obligation and function by
tendering his resignation. However, he was appointed on the
committee by the Government Resolution dated 28 th July, 2016.
From 28th July, 2016 till he tendered his resignation and its
acceptance, he continued as a member of the Committee of
Management. This clearly indicates that it was not the State
which brought about his resignation or forced him to tender it. It
is the legal proceedings and the present petitions which resulted
in tendering and accepting his resignation from the Committee.
Therefore, this re-inforces our view that the matter should be
verified and scrutinised by them again in the light of the above
conclusions.
150 If the State, which is in a position of a patriarch, is
expected to complete the task assigned to it by the statute, then,
we have no hesitation in directing it to so complete it. It is not for
us to decide as to whether a particular respondent-member of the
Committee of Management is unfit or otherwise. It is entirely for
the State to determine, but we must impress upon the State the
gravity and seriousness of the allegations made against them.
Their unfitness is sought to be proved and demonstrated by the
petitioners by pinpointing their role and involvement in criminal
cases as well. If the criminal case, its pendency or the allegations
therein is the guiding factor or criteria, then as well, the State
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leaving it out of consideration while determining the unfitness or
otherwise of the candidate means it is the failure of the State to
adhere to the statutory mandate. The nature of the allegations,
their gravity and seriousness are extremely relevant. The
allegations cannot be proved because the criminal cases are not
pursued further, but that does not absolve the State of its duty
and obligation under the present law from considering the
materials in an overall manner. The State Government must bear
in mind that it is exercising a discretionary power under a statute
which is made specifically for improving the administration of the
Shree. Saibaba Shirdi Sansthan. In such a Trust, where the
general atmosphere is spiritual and people from all walks of life
visit the place to seek the blessings of Saibaba, pray for
everybody's wellbeing, there ought to be no place particularly in
the administration and management for persons with dubious
and doutful record. The sanctity and purity of the place has to be
maintained at all costs. There should be no conflict between
interest and duty. Public interest and people's trust is
paramount. The administrators have to be faithful and loyal to
the devotees. They must enjoy their trust and confidence. Hence,
the State Government must place the statute in the forefront
while deciding the issue of a person's fitness for appointment on
the committee.
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151 The State must take a decision, not merely relying on
allegations and charges, but all the attendant circumstances, as
to whether a particular respondent is unfit for the post. If we
may refer illustratively to the charges or allegations against some
of the respondents, though not necessary, that would render
completeness at least to our view. Before we proceed to do so, we
once again emphasise that the appointments need not be
disturbed at this stage. As far as Shri. Suresh Haware, the
Chairman is concerned, the allegations against him are already
summarised by us above. These allegations against him have
been made by the petitioners after obtaining inputs and
information from several sources. They have referred to news
reports as well.
152 As far as Shri. Haware is concerned, it is stated that
he has to be from one of the categories and in that regard, our
attention has been invited to Rule 3 of the Rules. In fact, the
Rules have not been referred by us at any time nor reproduced.
Therefore, we reproduce Rules 2, 3, 4, 5, 6 and 9. They read as
under:-
"2. Definitions. - (1) In these rules, unless the context
otherwise requires, -
(a) "Act" means the Shree Sai Baba Sansthan Trust
(Shirdi) Act, 2004 (Mah. XIV of 2004);
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(b) "Committee" means the Shre Sai Baba Sansthan
Management Committee constituted by the State
Government under Section 5 of the Act;
(c)"Form" means the form appended to these rules;
(d) "Sansthan Trust" means the Shree Sai Baba
Sansthan Trust;
(e) "Schedule" means the Schedule appended to these
rules.
(2) Words and expressions used in these rules but
not defined hereinabove shall have the same meanings as
respectively assigned to them under the Act.
3. Appointment of Committee. - (1) In accordance with
the provisions of sub-section (2) of Section 5 of the Act, the
State Government shall appoint to the Committee,
persons,-
(i) Who are permanent residents of the State of
Maharashtra;
(ii) Who are devotees of Shree Sai Baba; and
(iii) from the following categories, namely:-
Categoty Number of Members
A. Woman not less than 1
B. Socially and Economically
not less than 1
weaker sections
C. Persons possessing professional
or specialised knowledge within the
not less than 8
meaning of sub-section (2) of
section 5 of the Act
D. General upto 7
Provided that, the number of members to be
appointed shall not exceed 17 (including the Chairman and
Vice-Chairman).
(2) The person belonging to category "C" above
shall consist of not less than eight persons having
educational background with professional or specialized
knowledge, qualifications and practical experience in one
or more of the following fields, namely:-
(i) Law;
(ii) Business Management, Accountancy, Economic,
Finance or Public Administration;
(iii) Engineering, Architecture;
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(iv) Public Health, Medicine;
(v) Rural Development;
Provided that, the Committee shall consist of at least one
person from each of the fields mentioned at Serial Nos. (i)
to (iv) above and not more than one person from the field
mentioned as Serial No. (v) above. Provided further that
the persons to be appointed under category 'C' above shall
possess the minimum qualifications and experience
specified in column (3) of the Schedule.
(3) The person belonging to category "D" above
shall consist of upto seven persons who shall be either
Patrons or Life Members of the Bhakta mandal.
Provided that, due regard maybe had while making
appointments in category "D" to all or any of the following
factors:-
(i) possession of a bachelor's degree;
(ii) residence in Shirdi or in the Ahmednagar District;
(iii) contribution made by the person to a social or
educational cause or to social or educational
development.
(iv) that the person is a Member of Parliament
representing Shirdi or a Member of the State Legislature
representing the Shirdi assembly constituency.
4. Qualifications for being a member:- (1) Only if a
person who is in a position to attend the activities of the
Sansthan Trust for at least two days in a calendar month,
shall be eligible to be appointed as a member of the
Committee.
(2) The person to be appointed as a member of the
Committee shall on the date of nomination be at least 25
years old and not more than 70 years old.
5. Disqualifications for membership.- The following
persons shall be disqualified for appointment as a member
of the Committee:-
(a) a minor;
(b) a person of unsound mind who is so declared by a
Competent Court;
(c) an undischarged insolvent;
(d) a person who has directly or indirectly any interest
in a lease or any other transaction relating to the
immovable property of the Sansthan Trust;
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(e) a person who has any share or interest directly or
indirectly in any contract for the supply of goods to or
for execution of any work, or performance of any service
undertaken by the committee in respect of the Sansthan
Trust;
(f) a person who is guilty of misconduct or who has been
charge-sheeted for an offence involving moral turpitude
or is otherwise found to be unfit;
(g) a person who is disqualified under sub-section (2)
and (3) of section 8 of the Representation of People Act,
1951 (43 of 1951).
(h) a person who was a member of the Committee but
had failed to attend three consecutive meetings of the
Committee, without leave of absence and had vacated
office as provided by Section 7(3) of the Act.
6. Appointment of members. - Appointment of members
shall be made by the State Government by nomination:
provided that, such appointment shall be made only
after -
(i) the person to be appointed as a Member submits his
declaration in Form A to these Rules; and
(ii) The State Government receives a police report or a
police verification certifying that, such person has not
been convicted or charge-sheeted by a court of
competent jurisdiction for an offence involving moral
turpitude or is otherwise found to be unfit.
.....
9. Declaration under Section 8 and Section 13(2) of the
Act. - (1) A person to be appointed as a member of the
committee, shall, prior to his appointment, make a
declaration, as required under Section 8 of the Act, in
Form B.
(2) The officer to be appointed as an Executive
Officer shall make a declaration, as required under sub-
section (2) of section 13 of the Act, in Form C."
153 There is a Schedule referable to Rule 3(3), which deals
with those persons who are belonging to category 'D'. In fact,
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category 'A' is "woman", category 'B' is "socially and economically
weaker sections", category 'C' is persons possessing professional
or specialised knowledge within the meaning of sub-section (2) of
section 5 of the Act and category 'D' is "General". As far as the
Schedule is concerned, it sets out the category and minimum
qualifications and experience. As far as Shri Suresh Haware is
concerned, it is stated that his appointment is not from any
category. Secondly, in his case, he became member of the Bhakta
Mandal only on 6th July, 2016 i.e. after confirming the position in
the Trust. It is evident from the information, received under the
Right to Information Act, 2005, dated 26th October, 2006 that
Shri. Suresh Haware made an application for becoming a member
of the Bhakta Mandal on 6th July, 2016. Thus, he was not a
member of the Bhakta Mandal. Then, relying upon Rules 4 and 5,
it is stated that Shri. Haware, who is a Builder by profession, will
hardly find time to devote himself wholeheartedly to the affairs of
the Trust. Secondly, in his case, there was no police verification
undertaken.
154 Even in his and other cases, the argument is that by
Rule 6, the appointment of members shall be made by the State
Government by nomination and the proviso to Rule 6 says that
such appointment shall be made only after the person to be
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appointed as a member submits his declaration in Form 'A' to
these rules and the State Government receives a police report or
a police verification certifying that such person has not been
convicted or charge-sheeted by a court of competent jurisdiction
for an offence involving moral turpitude or is found otherwise
unfit. It is stated that in the declaration, the person to be
appointed as a member has to state that he has not incurred any
of the disqualifications under section 9 of the Act and that he has
not any time in the past been convicted or charge-sheeted by a
court of competent jurisdiction for an offence, the punishment for
which is imprisonment for a term exceeding two years or for an
offence involving moral turpitude. We have already held that
clause (7) to Form 'A' would have to be read together with the
substantive provision, namely, section 9 and Rule 5 setting out
the disqualification for membership. This Form and clause (7)
does not in any way run contrary to the Act and the Rules. The
clauses in the Form 'A' will have to be read together and they
refer to non incurring of disqualifications set out under section 9
of the Act or the Rules of 2013 and in addition, clause (7)
mandates that the declarant must state that he has not at any
time in the past been convicted or charge-sheeted by a court of
competent jurisdiction for an offence the punishment for which
exceeds imprisonment for a term exceeding two years or for an
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offence involving moral turpitude. Thus, there is nothing in the
Form which would defeat the mandate of the Act and the Rules
nor it can be held that the Form overrides the Act and the Rules.
The Form if at all complements both, the Act and the Rules and
particularly section 9 and Rule 5.
155 However, an affidavit and compilation of documents
has been tendered so as to allege that there are serious
allegations even against Shri. Haware. Shri. Haware has filed an
affidavit in reply and there is a rejoinder to it as well. In the
affidavit filed by Shri. Haware in reply to the petition (at pages
626 to 661) it is alleged that his younger brother Shri. Satish
Kashinath Haware was in construction business, which was
started by him in the name and style as M/s. Haware Engineers
and Builders Pvt. Ltd. Satish Haware died in a road accident on
8th May, 2005. The company had acquired huge goodwill in
construction industry in and around Navi Mumbai. On account of
untimely death of his brother, Shri. Suresh Haware, who was a
scientist working at Bhabha Automic Research Centre (BARC) for
nearly 27 years, had to resign and join the construction business.
During his tenure as the Managing Director of the company, the
business scaled new heights. Respondent no. 4 improved his
educational and academic qualifications and completed his Ph. D.
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in Business Policy and Administration. There are various social
activities which he has undertaken, for which, several awards
and rewards were earned. He does not deny that in addition to
his social, academic and professional activities, he ventured into
political arena, but admits that working for a political party has
not brought any disqualification for being appointed as a
Chairman of the Trust all the more when he is ardent Bhakta of
Shree Sai Baba.
156 However, the petitioners maintain that this is not
entirely correct. The petitioners have tendered a compilation of
documents and as far as respondent no. 4 is concerned, it is
stated that there is a charge-sheet filed against respondent no. 4
and four others for cheating a businessman to the tune of Rs.54
lacs. The charge-sheet was filed way back in 2012 in the Court of
Judicial Magistrate at Vashi against Shri. Suresh Haware, his
brother Sanjay, sister-in-law Ujwala and two of his employees,
namely, D. Taide and Mohandas working in the construction firm.
The statement attributed to the police and reported in one of the
newspapers has been referred. Our attention is also invited to an
order passed in Public Interest Litigation No. 3 of 2014, wherein
Octroi evasion within the Thane Municipal Corporation limits was
brought to the notice of the court and it was alleged that
respondent no. 4 is involved in that as well.
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157 A FIR is stated to be lodged for the offences punishable
under section 406, 420, 467, 468 and 471 of the Indian Penal
Code, 1860. The learned advocate appearing for respondent no. 4
has sought to make a distinction between the allegations made
against a company and personal involvement of respondent no. 4.
However, in the backdrop of the great achievements and high
academic qualifications, it is equally admitted that there are eight
civil suits and two complaints pending in the Consumer Court
against the companies, in which respondent no. 4 is a Director.
158 Once we are not accepting the argument of the State
that it is only the police verification which is decisive and based
on that if the opinion is recorded and that would suffice for the
purpose of later part of clause (f) of sub-section (1) of section 9,
then, it would be proper to expect from the State whether it has at
all verified these matters and independent of the earlier part of
clause (f) of sub-section (1) of section 9. We have not seen, from
the original record handed over by Mr. Dixit, that apart from
addressing a communication to the Sanpada Police Station, Navi
Mumbai and seeking a report about pendency of any criminal
case, independent scrutiny and verification of the above
allegations or cases is undertaken. Rather, it is strange that the
affidavit-cum-declaration filed by Shri. Suresh Haware, residing
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at Vedant, 2nd floor, Plot No. 46, Sector - 30, near Samna Press,
Vashi, Navi Mumbai 400 705, does not disclose the pendency of
these cases, civil and/or criminal. The original affidavit also has
been placed in the record. It is evident from the original record
that Shri. Haware does not dispute that though he is B. Tech,
Nuclear Scientist, Ph.D., he is equally the Chairman and
Managing Director of Haware Properties (ISO 9001-2008
certified company). His detailed profile is also on record.
However, we do not see any reason for him not disclosing
pendency of any of the cases nor the State probing the same from
the angle and approach expected of it in view of the clear
language of section 9(1)(f) of the Act. As held above, the police
machinery does not issue a character certificate but only reports
from its record about pendency of a criminal case or complaint. A
person with a criminal background is definitely unfit but even
those agaisnt whom there is no reported incident may be morally
unfit. His conduct and demeanour may be found to be adverse,
lacking in decency and thus disliked by his peers, superiors,
friends and relatives. Therefore, we would even now expect the
State and its officials to verify and scrutinise the allegations made
against Shri. Haware by obtaining necessary inputs from social,
cultural and business circles. We have already held that merely
because the criminal cases are closed or civil cases or consumer
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disputes being directed against companies controlled entirely or
of which Shri. Haware is part of cannot be a ground to accept the
plea that Shri. Haware is entirely fit. That would mean the later
part of clause (f) of sub-section (1) of section 9 is superfluous and
redundant. We, therefore, direct the State to reconsider the
aspect of appointment of Shri. Haware in the light of this
judgment and particularly whether he was otherwise unfit to be
appointed. His involvement with building business being
admitted, the companies' dealings being also admitted, if the
allegations against the companies are serious and particularly of
non-fulfillment of certain contractual obligations towards flat
purchasers, then, now that the stringent law, namely, the Real
Estate (Regularion and Development) Act, 2016 being in the field,
mere exoneration from criminal cases or non-pendency of
criminal cases personally against Shri. Haware does not mean he
is fit to be appointed. Therefore, we expect the State to take an
independent decision and without being influenced by his
appointment already made as a Chairman. We expect the State to
take into consideration the allegations made by the petitioners
against him and act accordingly. In taking a decision as directed
by us, the State shall not be influenced by the contents of its
affidavit in reply or that of Shri. Haware or any police verification
done in the case of Shri. Haware. The requisite decision be taken
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as expeditiously as possible and within a period of two months
from the date of receipt of a copy of this judgment. The State
must bear in mind that self certification by the appointee about
his character is wholly irrelevant when the office is public and
equally the duties of the same.
159 As far as respondent no. 5 Shri. Chandrashekhar
Kadam is concerned, the allegations against him are that he does
not meet the requisite qualification as per the Schedule to the
Rules. He is the Vice-Chairman and his appointment is from
category 'C'. In that regard, it is stated that he is not a graduate
nor does he possess 10 years' experience in rural development.
He is not a recipient of any national/State recognised award. He
has also tendered his affidavit-cum-declaration before the State
and in terms of Form 'A'. As far as his Bio Data is concerned, it is
stated that he is B. Com. and his profession is agriculturist and
social work. He represented Rahuri Assembly Constituency from
1998 to 2000 and from 2004 to 2009. He was a President of the
Bhartiya Janata Party unit of Ahmednagar District from 2000 to
2004. Apart from that, he is associated with Annasaheb Kadam
Patil Agriculture and Rural Development Foundation from 1996.
He was also a Director of the Rahuri Sahakari Sakhar Karkhana
for 15 years. Apart from being associated with several
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educational and social trusts, he is Chairman of one Bagayat Peek
Utpadak Vividh Karyakari Seva Sahakari Society Limited, Devlali
Prawara for 25 years. He was also the Chairman of Devlali
Prawara Nagar Parishad. Thus, we find that he has experience of
the work and in the field proclaimed by him in his affidavit in
reply. He has made allegations that one devotee of Shree Sai
Baba gave written complaint on 1 st April, 2016 mentioning that
he paid a sum of Rs.2 lacs, but he was not received a receipt from
the Sansthan and the receipt issued on 28th August, 2015 is
under the signature of the petitioner, but not in his capacity as
any office bearer of the Shirdi Sansthan. If the petitioner has
signed the receipt that means he has misappropriated the funds
of the trust.
160 However, we are not concerned with the allegations
against the petitioner as that part of the controversy is closed by
us. We are concerned with the allegations against respondent no.
5. In that, we find that respondent no. 5 does not dispute
registration of two CRs. Being C. R. No. 317 of 2012 and 318 of
2012, but he claims that he is already discharged from the said
criminal cases on 31st January, 2017. This is much after his
appointment by the impugned Government Resolution. The
incident, according to him, is one and the same and that is a
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participation in an agitation in relation to a demand for water and
for drinking and agricultural purpose in the drought affected
areas.
161 We have already noted the arguments of the learned
senior counsel Mr. Dhorde. We have also perused copies of the
FIRs and the offences alleged are punishable under the
Bombay/Maharashtra Police Act [sections 37(1)(3) and 135].
From that, it is apparent that the allegations under the
Maharashtra Police Act and for offences punishable under
sections 143 and 341 of the Indian Penal Code, 1860 pertain to
the agitation and squatting on road and disturbing the traffic. We
have taken an overall view of the matter. We are not influenced
in any manner by the discharge of this respondent from the
criminal cases. We find that the criminal cases apart, the
allegations therein may or may not attract the extreme penalty of
removal as a member of the Committee of Management at this
stage. Even if this respondent is discharged from the criminal
cases, subsequent to his appointment, the non-disclosure of these
cases by him needs to be strongly deprecated. If one is an active
social and political worker, then, one is expected to be truthful
and honest in the dealings with others, particularly the members
of the public and parties such as banks, financial institutions,
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religious holdings and the like. If he is part of social, agricultural,
educational Trusts and particularly involved in rural
development, working for the upliftment of the agriculturists and
villagers, then, one should not hesitate to disclose openly about
pendency of any criminal cases and equally the progress therein.
It may be argued that in this case the punishment may or may not
be for a term exceeding two years, but, if there is a case pending,
it should be equally disclosed, whether there is any past
conviction or there is any case pending where charge-sheet has
been filed in a court of competent jurisdiction and further
whether the offences alleged involve moral turpitude. It is
expected of such persons to disclose that they have not and are
not indulging in activities which would be detrimental to the
interest of the Shirdi Sansthan on which they seek appointment
as a member of the Committee of Management and that they are
not otherwise unfit. Since this respondent has not disclosed the
pendency of the criminal cases, while disapproving and
deprecating this conduct and behaviour of this respondent no. 5,
which we find to be a general phenomenon, we issue the same
direction, particularly of the nature directed against the
Chairman. We leave the matter at that and say nothing more. It
would be entirely for the State to take a decision in the light of
this judgment and equally the observations and findings herein.
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The State should also consider the findings and observations in
the judgments rendered by this court in the earlier PILs that no
political appointments should be made or appointments to this
Sansthan should not be made purely for political reasons.
162 Further, squatting and sitting in dharna on a public
road, obstructing the movement of the traffic, not co-operating
with and defying the lawful orders of the police, shouting slogans
abusing the public servants, showing disrespect to police, court
are all but factes of the same charge or allegation, namely,
instigating the people at large to flout the law of the land. The
participant in a agitation cannot decide for himself far from
declaring that it is justified, it was lawful and peaceful. The even
tempo of life is disturbed, it is thrown out of gear by bandh, rasta
roko, rail roko, gherao, by holding meetings and gathering on a
road addressing them by erecting platforms and stage without
prior permission and by using loudspeakers, amplifiers etc. The
behaviour is supported by pleading that public causes and
grievances have to be raised as its voice is not heard by the rulers
and those in authority. The silent public knows how to protest
and resist. In democracy the ballot prevails over a bullet. Hence,
those in opposition yesterday cannot withdraw criminal
prosecutions indiscriminately because now they are voted to
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power. It is this approach which makes politicians and political
leaders unfit for any public office. The public trust doctrine
applies to all and one in social, cultural, political, religious and
public post or office can have a dual personality or face. They are
all public personalities and round the clock.
163 As far as respondent no. 6-Manisha Kayande is
concerned, after having considered the material on record, we
direct that in her case as well, the State would have to take a call
as to whether the appointment is in tune with the law laid down
by us in this judgment as also the orders passed by this court in
Public Interest Litigation No. 27 of 2012 and Public Interest
Litigation No. 18 of 2011. These orders are on record. This court
had categorically cautioned the State that the new Management
Committee should be constituted in accordance with law. This
court, in Public Interest Litigation No. 27 of 2012 along with Civil
Application No. 3546 of 2012 passed an order on 30 th March,
2012, copy of which is at page 66 of the petition paper book, in
which, while discussing the provisions of the Act, this court had
expressed a prima facie opinion that section 5 gives unbridled
and un-canalised powers to the State to appoint the members of
the Committee. The proviso has been brought in after sub-section
(2) of section 5, but there should not be any arbitrariness in
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exercise of the powers. The State cannot make appointments of
persons with questionable and doubtful past. In paras 18 and 19,
this court observed as under:-
18. It is the specific contention of the petitioners that the
two coalition partners, i.e. INC and NCP who are ruling the
State, while making appointments to the Managing
Committee, have shared the membership of the committee
amongst themselves. A perusal of specific averment made
by the petitioner would reveal that many of the persons
who have lost either assembly elections, or Zilla Parishad
elections, have been rehabilitated as members of the
Managing Committee of the said Trust. A specific instance
has been given in the petition, that Respondent No. 5, who
has been appointed as Vice Chairman of the Committee,
had contested the election to the legislative assembly on
the ticket from Bharatiya Janata Party in which he lost
and thereafter he has been inducted into the Nationalist
Congress Party which is one of the partners of the ruling
parties. It is contended that as a reward, he has been made
Vice Chairman of the Committee. Another instance quoted
is of Respondent No. 14 who is also alleged to be closely
related to one of senior leaders of NCP. Her husband had
contested election from Nationalist Congress Partly, but
had lost the same. A specific allegation is that Respondent
Nos. 12 and 13 had also contested Zilla Parishad elections
from NCP and had lost the same. Not only this, further
specific averment is made on affidavit that other members
of the Committee are either closely related to or closely
associated with the leaders of either the NCP or INC.
Serious allegations are made that Respondent No. 5 and 12
are facing various criminal charges and criminal cases are
pending against them. It has then been specifically alleged
that Respondent No. 13 has been involved in serious mal-
practices in construction of Gram Sachivalaya and in an
enquiry held by the Chief Executive Officer, Zilla Parishad,
Ahmednagar, he has been found, prima facie, guilty and
the report of enquiry is pending consideration before the
Divisional Commissioner, Nashik. All these persons have
been made members of the Committee.
19. Looking to the number of petitions filed before this
Court, it is apparent that the very purpose for which the
said Act appears to have been enacted, namely, to avoid
the litigation, is frustrated. When power is vested with the
authority, it must exercise the same for the public good.
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We expect the State Govt. at least to keep the God away
while distributing public largesses. God is not fiefdom of
ruling coalition. It cannot be disputed that the devotees of
Sai Baba are from all sections of the society and also belong
to various political parties. In that view of the matter, in
pursuance to the orders passed by this court on 30.4.2010,
the State Government ought to have first framed the rules
prescribing procedure regarding qualification, mode or
manner of appointment in terms of Section 5 of the Act. At
least, while making appointments on a committee of trust
wherein religious sentiments of people at large are
involved, the State is expected to appoint devotees of
shrine as members of the trust, rather than making the
appointments on political considerations and of kiths and
kins and associates of its leaders. The Act is not meant for
rehabilitation of the members of the ruling political parties
who are defeated in elections. If a proper procedure would
have been prescribed by making the rules for
appointments as Members of the Managing Committee,
various persons having requisite qualification, experience,
specialized knowledge would have certainly come forward
to offer to work on the committee/trust. However, prima
facie, it appears that in a non-transparent manner, ruling
alliance has appointed members of the Committee so as to
favour its members who have lost in political election and
for accommodating kiths and kins of its leaders. Though an
attempt has been made to show that the order passed by
this court on 13.3.2012 has been complied with, it is
nothing more than an eye-wash inasmuch as, the
reconstituted committee would reveal that the chairman is
the same and many of the members are either the same or
where-ever they are replaced, such replacement is by close
kiths and kins.
164 Thus, every single appointment, if running contrary to
these observations and findings so also our conclusions would
have to be reconsidered.
165 Further, in the case of Manisha Kayande, the
petitioners have made serious allegations that she has not
attended the meetings of the Committee. It is alleged that she has
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violated section 7(3) of the Act and Rule 5(h) of the Rules by her
absence in three meetings. Consequently, her appointment from
the women's category comes to an end. We express no opinion on
such allegations, but leave it to the State to take a proper
decision. All the more because there are written communications
on record which would reveal that the relations between the Shiv
Sena and Bhartiya Janata Party in power, as far as this aspect is
concerned, are not cordial. The Shiv Sena party was of the
opinion that it should get at least the post of Vice-Chairman, if not
the post of Chairman of the Committee. Therefore, we are of the
opinion that in this case as well, within the time stipulated and
directed above, the State must take a proper decision. We direct
accordingly.
166 In the case of Sachin Tambe, we find that he has
already resigned and during the pendency of the petition.
However, this development reinforces in a way the conclusions
reached by us, namely, all is not well with the appointments made
by the State and the State ought to strictly abide and adhere to
the mandate of the law, namely, the Act of 2004 and the Rules.
167 Mr. Talekar has not challenged the appointment of
Shri. M. M. Jaykar as a member of the Committee, but in the light
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of our judgment and our conclusions, it is open for the State to
take in his case as well an appropriate decision and in accordance
with law. Merely because the petitioners have not challenged his
appointment does not mean that the State is denuded of its
powers under the Act and the Rules and provisions of which have
been interpreted by us in this judgment. Therefore, if the
appointment is not in accordance with the provisions of the Act
and the Rules and beyond any police report or police verification
nothing has been looked into in the case of Shri. Jaykar or the
petitioners not questioning or challenging his appointment will
not prevent the State from taking a decision in accordance with
law. We direct accordingly.
168 In the case of Shri. Pratap Bhosale, the allegations are
that the requisite qualifications and work experience are lacking.
His appointment is from category 'C'. His specialisation is
Financial Management.
169 From the original records produced before us, all that
we can see in his case as well that the educational qualifications
are M.A.(Economics) from Pune University and thereafter he
claims that he has been nominated as the Director of State Bank
of India, Mumbai Local in 2012. He was listed on Department of
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Public Enterprises as qualified for position of Director from non-
official category and his number is 134. Pertinently, he is a
member of Prant Karyakarini of the Rashtriya Swayamsevak
Sangh (RSS) and was doing the work of RSS even in USA. Thus,
his basic experience is in agricultural and rural development. He
does not appear to be, according to the petitioners, qualified in the
specialisation, namely, Finance Management. He has no work
experience as well. Thus, he lacks the educational qualification as
also work experience. Further, the allegation is that the
appointment is purely on political consideration and he being
associated and connected closely with RSS.
170 Further, in the case of Shri. Pratap Bhosale, the
allegation is that he was deported from the United States of
America by a judgment and order dated 15 th December, 2008
delivered by the United States Courts of Appeal for the Eighth
Circuit in Review Petition No. 7-3505. The allegation is denied
and it is stated that this judgment is wrongly interpreted. This is
not a case of deportation from the United States of America. The
judgment is relied upon to clarify that in view of the removal
proceedings initiated by the Department of Homeland Security,
Shri. Pratap Bhosale, along with his wife made an application to
the immigration authorities seeking asylum fearing persecution
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at the hands of the authorities in India due to his being a member
of the Rashtriya Swayamsevak Sangh (RSS), an organisation
which was temporarily banned in India. Shri. Pratap Bhosale
apprehended such persecution due to his participation in the
Save Kashmir Movement in the year 1980. The immigration
Judge rejected the application holding that there was no well
founded fear of future persecution. However, he allowed the
alternative prayer of Shri. Bhosale and his wife for voluntary
departure. This decision was affirmed by the Board of
Immigration Appeals. The decision of the Board of Immigration
Appeals was sought to be reviewed at the behest of Pratap
Bhosale in the above review proceedings. The review was filed so
as to seek a review of the order of the Immigration Judge to the
extent of removal. What we find from pages 406 to 408 of the
paper book, which is a part of the affidavit in reply of Shri.
Bhosale, that all the materials, which are brought on record by
the petitioners, have been brazenly suppressed. The petitioners
having highlighted the proceedings before the United States Court
and the admission of Shri. Bhosale that the U. S. Authorities
sought his removal, to our mind are enough and to conclude that
these are serious and grave matters which ought to be considered
while arriving at an opinion that the person is otherwise unfit.
This person was sought to be removed from the United States of
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America, but instead made an alternate request, which was to
resist the removal from USA. He cannot be heard to say that
these proceedings are of no consequence. He has taken these
proceedings to say the least lightly and casually. However, to our
mind the authorities cannot ignore them and his otherwise
irresponsible and disgraceful conduct of suppressing these
materials from the Government. If the State Government though
being aware has chosen to ignore this crucial material about Shri.
Bhosale's character and fitness, then, all the more the State is
expected to correct itself.
171 Therefore, our directions to revisit and reconsider all
such cases or appointments, which do not meet the criteria laid
down in the Act and the Rules as also are not in accord with
section 9(1)(f) of the Act would squarely apply even in the case of
Shri. Pratap Bhosale. In his case also, we direct the State to
comply with the directions as above. Meaning thereby, the State
must take an appropriate decision in accordance with this
judgment and the law within the period stipulated above.
172 As far as Dr. Rajendra Singh is concerned, he is
respondent no. 10. His specialisation is claimed to be in Business
Management. We have perused the original record and what we
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find is that Dr. Rajendra Singh has filed his affidavit-cum-
declaration in terms of Form 'A' and Form 'B'. He states that he is
B. A. M. S., M. D. he is a Director of Yogayatan Group and trustee
of Yogayatan Jankalyan Trust. He claims to be a devotee of
Shree. Sai Baba and working in the field of social service. He has
held several positions and particularly in the Government of
India institutions. He has educational background with
professional or specialzed knowledge, qualification and practical
experience as required by the second proviso to sub-section (2) of
section 5. However, the petitioners have brought to the notice of
this court that even he has not disclosed truthfully and honestly
all the requisite and necessary details.
173 As far as Dr. Rajendra Singh is concerned, he may
have denied the allegations made by the petitioners and
reiterated the contents of his Bio-Data, what we find is that he
asserts that the members of opposition party also recommended
his name for nomination. He has denied that he is close relative
of Shri. Rajnath Singh, Minister of Home, Government of India.
He has denied that his appointment is not in accordance with law.
To our mind, considering his qualifications, which do not strictly
match with the requirement, namely, Bachelors degree in
Business Administration and 10 years' experience, what we find
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is his Bio-Data enlists certain achievements and particularly in
the field of management. His appointment, therefore, need not be
disturbed save and except if there is any material which would
make him otherwise unfit. In the rejoinder affidavit, no such
material has been pointed out.
174 Then, we come to the case of Shri. Bhausaheb Rajaram
Wakchaure. In his case, apart from the allegation that he is very
close to Bhartiya Janata Party and Shiv Sena and which
allegations are not denied by him, he has not been able to
satisfactorily explain as to how the criminal complaints would
have no bearing on his nomination or appointment for what we
have is his own version on affidavit. In paras 3, 6, 7 and 9 of the
affidavit at pages 361 to 364 of the paper book, he states as
under:-
"3) I say that, albeit, there were several previous
litigations in respect of allegations of political personalities
having incompetency to sit over as the managing
committee members; now, however, in order to overcome
all the ambiguities and the irregularities the new managing
committee having the utmost profile status and
competency in order to be qualified for becoming the
members of the managing committee has been followed in
the selection of the committee members. I say that, the
present deponent has worked in the administrative public
services for last 30 to 38 years and when promoted in
class-I cadre of the administrative services has also served
as the Executive Officer of the Shri. Sai Baba Sansthan
Trust, Shirdi.
.....
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6) I say that the allegations in the petition as regards to
the criminal complaint bearing F. I. R. No. 238/2013
registered with Kopergaon Police Station U/sec. 314, 143,
149 of I. P. C. along with offences punishable U/sec. 37(1)
(3) & 135 of Bombay Police Act vindicating the present
deponent were totally a omnibus allegations with political
vendetta against as many as total 29 accused persons. I
say that, in view of the Govt. Resolution dated 13.01.2015
all such political offences wherein there is no damage to
the Govt. or public property less than Rs.5 lacs and if no
bodily injury or death is caused in such incidents, the said
offences were intended and actually withdrawn by the
State Govt. Hence, the said F. I.R. itself is withdrawn by
the competent authority particularly the Superintendent
of Police and the present deponent as on today stands
discharged u/sec. 321 (a) of the Cr. P. C. Therefore, the
said allegations in respect of criminal offence against the
present deponent is baseless having no substantive value
in order to disqualify the present deponent from being the
member of the managing committee of the trust.
7) I say that, apart from the two meager and petty
allegations that too having no legal impediment in the
process of selection of present deponent as the member of
managing committee, there is no other basis to reveal any
exception to violate the rules formulated for appointment
of managing committee of the Shri. Sai Baba Sansthan
Trust, Shirdi. I say that, the rules of 2013 are framed by
the State Govt. in view of the directions of this Hon'ble
High Court by taking due care for formulating the
qualifications with a view to appoint the managing
committee members as most efficient, honest and
integrated. Therefore, the appointment of the present
deponent as the member of managing committee is not
only in accordance with the rules 2013 but with total
manifestations and deserving qualifications to be eligible
for becoming the managing committee member to look
after the affairs of the administration of the trust.
.....
9) I say that, the deponent craves liberty to produce and
rely on the copies of the withdrawal orders by competent
court thereby discharging the present deponent in F. I. R.
bearing C. R. No. I-238/2014 in view of the Government
Resolutions and orders sustaining the legality in
appointment of present deponent as the then, Executive
Officer of Shri. Saibaba Sansthan Trust, Shirdi, as and
when available and if necessary."
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175 From the original file, we do not see how
Mr.Wakchaure could keep back from the authorities the
pendency of the criminal cases. Secondly, his version is of no
assistance. We clearly find that apart from the serious allegations
in the criminal cases, there is also, in the compilation, a reference
made by the petitioners to certain other/civil proceedings,
namely, Writ Petition No. 5008 of 2007 decided on 17 th March,
2008. A copy of this petition has also been placed on record.
Shri. Wakchaure is respondent no. 4 to this petition and he was,
at the relevant time, the Executive Officer of the Trust. We have
summarised the allegations against him in these PILs already, but
what is alleged in the memo of Writ Petition No. 5008 of 2007 in
paras 13 and 14 is that Shri. Wakchaure has been appointed
knowing fully well that he was not even qualified to be appointed.
There are serious allegations made in the whole petiiton and what
has been sought is his removal from the post. This petition may
have become infructuous, but surely, Shri. Wakchaure cannot be
said to be completely exonerated. There are not only serious
allegations made in the criminal cases, but it is apparent from the
record that even in Wakchaure's case, there has not been any
adherence to clause (f) of sub-section (1) of section 9. We are,
therefore, of the opinion that what holds good for others in terms
of the law laid down by us would equally apply to him. Even he
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has suppressed vital materials and which would have a material
bearing on his fitness. Even in his case, the State Government is
directed to take a decision and within the time stipulated above.
176 As far as Shri. Ravindra Mirlekar and Shri. Amol
Kirtikar are concerned, they are arrayed as respondent nos. 13
and 14. In their case, what we find is that the allegations are that
both of them belong to Shiv Sena party and have been appointed
from general category. Both of them are not residents of
Ahmednagar district. We are of the opinion that if Shri. Mirlekar
and Shri. Kirtikar though not residents of Ahmednagar district,
and still appointed, our directions insofar as Smt. Manisha
Kayande, who is also a Shiv Sena party member, would apply to
these respondents. The appointments of Shri. Mirlekar and Shri.
Kirtikar would have to be reconsidered and revisited. They have
to be revisited in the light of the law laid down in this judgment.
177 As far as the appointment of respondent no. 15 is
concerned, there is no challenge.
178 Then, what remains is the case of Shri. Bipin Kolhe. In
his case, we have found that the allegations are that there are not
only criminal cases pending against him, but his appointment is
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only because of his close political connections. During the course
of arguments, we have noted that Shri. Kolhe may have
highlighted his achievements in his Bio-Data, but in his affidavit-
cum-declaration, he has not stated that there were indeed
criminal proceedings involving him. What has been brought out
in the compilation placed on record by Shri. Talekar on 13 th July,
2017 in this petition is that there was a Public Interest Litigation
No. 196 of 2010, whereunder, directions were issued to the
Commissioner of Police to take appropriate action against the
Directors of a sugar factory, namely, Sanjivani Co-operative
Sugar Factory, of which, Shri. Kolhe was the Chairman as its
directors are involved in huge irregularities. What we have found
from these documents is that this court had directed that there
should be a High Power Committee and which should investigate
these allegations.
179 It is common ground that these allegations were
investigated and it has been found that there were indeed some
irregularities. These irregularities were pointed out, but reliance
is placed on the report of Shri. P. S. Paranjpe, who was appointed
as an inquiry officer. We are not concerned with the findings in
the inquiry report and particularly whether there is any case
made out for initiation or launching of criminal prosecution, but
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what we find is that if there are allegations against the Board of
Directors, then, at least insofar as such allegations are concerned,
the State should have called for not just a police verification or
police report, but also materials from other concerned and
relevant sources. That appears to have not been done at all.
Further, we find that the affidavit of Shri. Kolhe, filed in this case,
makes an interesting reading. Shri. Kolhe has sought to deny the
allegations against him. However, in his affidavit, he does not
dispute that he is the son of Shri. Shankarrao Kolhe, who was ex-
Vice-Chairman of Shirdi Sansthan. He does not dispute that
Public Interest Litigation No. 25 of 2015 was filed against his
father and this court had directed to conduct an inquiry. There
may be a version placed by him with regard to the allegations and
seriousness thereof, but what we further find is that there is an
admission that there are criminal cases filed against Shri. Kolhe,
namely Criminal Case Nos. 287 of 2013 and 238 of 2013 with
Kopargaon Police Station, but these are regarding agitation by the
agriculturists on the issue of release of irregular water to the
canals. There may have been a permission granted to withdraw
the criminal cases by an order passed on 7 th September, 2015, but
the petitioners have placed on record the details of these criminal
cases and what we find is that the courts have not construed the
charges of obstructing traffic, squatting and agitation by blocking
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of the roads to be trivial and frivolous. There are other offences
alleged and punishable under sections 143, 353, 447, 427 and
430 of Indian Penal Code, 1860. It is apparent that such agitators
and protestors, on most occasions, have not allowed the public
servants, namely, police officials and others in-charge of security
to perform their duties in accordance with law. Therefore, we are
of the firm opinion that the provisions of the law cannot be
misinterpreted and misread by at least the executive machinery
at the instance of some political heavyweights and close to the
political party in power. It is the interpretation of the court which
is paramount. Once the court of law has interpreted the
provisions and in unequivocal terms held that a police report is
not decisive, then, even in the case of Shri. Kolhe, the State must
take an appropriate decision and within the time stipulated and
directed above.
180 In the light of the above discussion, we do not think
that any of the judgments relied upon by Mr. Dixit would have a
bearing on the view that we have taken. We have, as argued by
him, not been persuaded to dismiss the PILs at the threshold nor
on the ground that the conduct of the PIL petitioners is
blameworthy. Therefore, any reference to the judgments relied
upon by Mr. Dixit, with regard to maintainability of the PILs are
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of no assistance. Secondly, our attention has been invited to the
judgments of the Hon'ble Supreme Court which interpret the
words and expressions "offences involving moral turpitude". We
do not think that these judgments can apply for the simple reason
that the provision in question, namely, section 9(1)(f) cannot be
read as desired by Mr. Dixit and Mr. Dhorde for that would make
the words and expressions "or otherwise found to be unfit"
redundant and nugatory. We have not agreed with the learned
senior counsel on their interpretation and construction of these
words and expressions. Therefore, we do not make any reference
to those judgments which interpret the term "moral turpitude".
181 Finally, the judgment of the Hon'ble Supreme Court in
the case of Hari Bansh Lal vs. Sahodar Prasad Mahto and Ors. 13 is
also of no assistance for in that case the appointment of the
Chairman of the Jharkhand State Electricity Board was quashed
and set aside. The argument was that it was quashed and set
aside at the instance of not an aggrieved party but in a PIL. The
maintainability of PIL in service matters was highlighted.
Further, the High Court has proceeded to issue a writ and
quashed the appointment though the suitability or otherwise of a
Government servant appointed in Governmet service cannot be
13 AIR 2010 SC 3515
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highlighted in a PIL. Such is not a case before us. In these
circumstances, we do not think that even this judgment is of any
assistance.
182 We summarise our conclusions as under:-
(i) We do not agree with the stand of the State
Government and hold that the words and expressions
"or otherwise found to be unfit" in clause (f) of sub-
section (1) of section 9 cannot be read ejusdem
generis and restrictively. It is an independent
disqualification and a person incurs it even if he is not
guilty of misconduct or has not been charge-sheeted
for any offence involving moral turpitude.
(ii) We cannot give an exhaustive list of the unfitness
as we cannot and do not define the word "unfit". The
expression "otherwise found to be unfit" means as
above and is not restricted to just physical unfitness.
It does not exclude moral unfitness and means not
suitable. This would include such cases where a
person is involved in trading or consuming liquor;
drugs; tobacco and banned substances, against whom
there are serious allegations of causing nuisance and
annoyance, person against whom serious allegations
are made of misbehaviour in public, a person against
whom there are complaints of indecent and immoral
conduct especially with children and women etc.
These are but illustrations and by no means
exhaustive.
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(iii) The impugned notification dated 28th July, 2016
is not quashed and set aside because the Committee
has been set up under that notification and found to be
working for nearly one and half year. However, the
appointments made under the impugned notification
would have to be revisited and reconsidered in the
light of this judgment and particularly our
interpretation and construction of section 9(1)(f) of
the Act.
(iv) While reconsidering and revisiting these
appointments, the State Government shall not be
influenced by the contents of its affidavit and those
filed in reply by respondent nos. 4 to 15.
(v) The State Government, while reconsidering the
appointments as directed above and within the time
stipulated of two months, shall not be influenced by
the police verification or police report only, but must
take into consideration the allegations in the criminal
cases together with other materials and take an
independent and informed decision.
(vi) The State Government shall reconsider these
appointments and revisit them by preferably setting
up an independent and impartial committee which
shall not include those officials and authorities who
had been involved in making the subject appointments
(appointments of respondent nos. 4 to 15).
(vii)We clarify that we have not expressed any final
opinion or conclusion on the merits of the
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allegations made, but we have invited the attention of
the authorities to the nature and gravity of the
allegations and charges against these respondents in
addition to construing and interpreting section 9(1)(f)
of the Act.
183 Having considered all arguments and points, we
dispose of all the Public Interest Litigations, since the issues
involved and questions raised are common, with the above
directions. The security deposit amounts deposited in these PILs
by the petitioners shall be refunded to them with accrued
interest. In the circumstances, there would be no order as to
costs.
(MANGESH S. PATIL, J.) (S.C. DHARMADHIKARI, J.)
J.V.Salunke,P.S.
