Abdul Quddus S/O Abdul Hamid And ... vs The Joint Charity Commissioner, ...
2021 Latest Caselaw 17952 Bom

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

                    WRIT PETITION NO. 4973/2021
  Abdul Quddus Abdul Hamid and ors ...Versus...Joint Charity Commissioner
                               and ors
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Office Notes, Office Memoranda of Coram,                                                                             Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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                                            Mr. D.R.Khapre, Advocate for petitioner
                                            Ms. H.Jaipurkar, AGP for Respondent Nos. 1 and 2



                                                                         CORAM : AVINASH G. GHAROTE, J.

DATE : 23/12/2021

Mr. Kharpre, learned counsel for the petitioner submits that the order dated 14.12.2021 requires correction by replacing Change Report No. 548/15 by Change Report No. 540 of 2015, as that is the correct number.

The contention is accepted. The order dated 14.12.2021 shall stand corrected accordingly.

A fresh order be uploaded.

SR.No.2 Circulated RJMirza/H.Jaipurkar Heard Lcp who takes exception to the order dt 20.12.21 on the ground that though the hearing was conducted on 15.12.21, a subsequent report prepared by the CEO dt 17.12.21, was considered for vacating the stay, without any intimation to the petitioner or supply a copy of the same, considering which issue notice to the Respondents returnable on 10.1.22.

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In the meantime there shall be a stay to the notice dt 20.12.2021 till the returnable date.

AGP waives for R1.

Sr.No.59 THBewali/T Khan Mr. Bewali seeks time to file rejoinder. List the matter after eight weeks.

Sr.No.65 PPThkare/Sr. C. Mr. Heard LCP, Mr. Gorde Sr.C. for R1. Mr. Dhabe appears for R3. Mr. Dhandekar AGP R4 and 5 The petiton challenges the judgment dt 6.8.19 passed by the learned ST in appeal no. 18/14 filed by the present R1, in which the terminaqtion order dt 20.2.14 of R1 has been qyuashed and set aside and R3 is directed to reinstate the R1 with full backwages qand continuity within 30 days. A recommendation is also made u/s 11 (3) of thre MEPS Act to the State Govt.

Mrt. Thakre LCP submits that on 29.3.12 the EO granted persmission to issue an advertisement for the post of SS available with the R2, run by R3. (pg 30) on on 21.4.21 an advertisement was issued in the local daily Traun Baharat inviting applciations by qaualified persons for the post of Shikshasn Sewak (Secondary). The said post was reserved for SC candidate and it was stated therein that women candidaqtes would be given prefere;nce. The petitionre as well as R1 in pursuance to the said advertisement had applied in which the petitoiner was recommended by the wp4973.21.odt

Selection Committee in pursuance to which the petitoinerw as appointed by viritue of appintment order dt 4.5.12 (page 33).

On 25.7.12 the R1 raised an objection to the appointemnt of the petitoiner herein, contending that the post was reserved for SC women, which objection was rejected (page 35). On 8.8.12 a complaint was filed by R1 to the concerned PS,. Allegoining that the spocoietyu had taken an amount of Rs. 17.5. lakhs, for the purpose of appoianting the R1 as a SS in spite fof which the appointment was not made, in which compdlaint the then president of R3 society, when summoned is stated to have made a statement that he would cancel the appoihntemtn of the petitoiner and issue an aqppoihnjtment later to R1. It is in pursuance thereto that by an aorder 9.8.12 the appoitnemtn of the petitoinre came to be cancelled wef 31.8.12 (pg. 42). Byh ana aorder dt. 8.8.12 R1 was appointed (pg 38). Anaother appointment order swas aslso issued to R1 on 9.8.12 (pg.40).

On 13.8.12 the then HM issued a letter to R1 stating that no post was available as the petitoiner was still then working on the post advertised (pg.43). On 22.3.13 the EO wrote a commucnaiton to the DDEdn (pg.44) stating that the appoiantment of R1 cannot be effected. On 9.12.13 the concerned Department of the State Govt called for an explanation in the matter (pg.45) . On 23.8.14 the wp4973.21.odt

cancellation order of the appointment of the petitioner, was withdrawn and the petitioner was continued with the employment. Ity is materiala to note that on On 31.10.13 a communcaiton was iussued by the cocnerned departament of the State Govt to the DDEdn asking the details about the appropval baeing granted to the petitoiner. On 3.12.14 a proposal was sent by the R2 and R3 for approval to the EO seeking the approval of the petitionre m(pg.50) on 20.2.14 an order was issued, terminating the R1 as there was no post avaialble. Thre is no dispute betweeen the learned cousnels regarding the aforesaid daqtes and events.

Mr. Thakre LCP submits that the imp order cannot be sustained, as the the elarned ST has laid much emphasis on the expression "women canddidatqe shall be preferred" when in fact there was no such reserv ation avaialble. He submits that such a preference could only be given to fill in the roster point and inviting my attention to the cfommuncaqtion of the EO dt 22.3.13 (pag 44), addressed to the DDEdn, it is submitted that stafnd was taken that 30% horizontal reservation for women had already been completged. Reliacne is also place dupon the report dt. 23.12.14 (pg. 89) which reiterates the above positoin. It is therefore submitted that since the horizontal reservation was already completed, therew was no question of any preference to the women candidaqtes, as such a preference cannaot be over and beyond the 30% wp4973.21.odt

horizantal reservation. It is fuirther submitted by him that R1 herself had come before the Tribunal with a case that for getting appointed to the post of SS she had given a bribve of Rs. 17 lakhs,5000 to R1 society and this being the case specifically put forth by R1 which is refklected from para 6, 7, and 8 of the memo of appeal (pg 110) the conduct itself disentitle the R1 from any relief at the hands of the learned Tribuna.l He further invites my attention to the mannert in which this positoin has been dealt with by the Tribunal in paras 44 and 45 and submits that kif mthe same is sustained, it would amount to putting a premium on the illegal acts of the R1 and the allegations in this regard ought not to be countenanced.

Mr. Gorde Sr C submits that the advdertisement itself indicated that the preference would be given to a women candidate considering which since the R1 was more qualified, she ought to have been preferred to the petitoiner. By relyaing upon expression "preference to wo,mamn cauidatqes, as poccruing in the advertisement, he submits that the seldction committee ought not to have ;considered the casnddiature of the petitoiner. He further by inviting my attention to the findings of the l earned Trubjunal in para 25 points out that though three is no provisoins in the MEPS Act or the Rules to consider the marks objtaianed by the candidatqe in their D.Ed exmainaiton, the consideration of the same by the EO in the repport dt 12.12.14 (pg. 89) is clearly misplaced anxd wp4973.21.odt

would not entitle the R1, to any indulgence at the hands of the R2 and 3.

He therefore submits that it was the R1 who was legally entitled to be appointed and therevfore, the judgment of the learned ST ought to be sustained. Reliance is placed on 2001 (1) MhLJ 206, para 5.

Mr. Dhage LCR3 Society submits that R6 is not responsible or invovled in the allegations against the society of having accepted any monetary consideration from R1 in trhe matter of her appointment. He submits that the present secretary also have joined in the year 2017 and therefore was in no way concerned with the allegations against the management. He further submitst aht there has to be a resoltuoinf or appoihntemktn of R1 for which reolaicne is placed upon 2009 (5) MHLJ 300 and so also on AIR 1995 SC 1648-C to contend that any reservation/preference for women cannaot exceed the limit of 30%.

I have bestowed my anxious considerfation to the rival contentions. At the outset it would be material to state thaqt since ther is no dispute as to the sequence of events, as indicated above, the appointment of the petitoiner, and its subsequent approval by the EO is not a matter of dispute. What therefore remains to be seen is wshetehr the advdertisement granted a apreference to the woman canddiated and whetehr such preference was indeed wp4973.21.odt

permissible. This has to be mnecessoasril;y looke dinto in the background of the postion regarding applciability of the restoer point which fixzes the reservation for the various categories. It is trite that while the said threshold for each category ought not to be kept vadaqnt, it is equally correct to say that it also ought not be cross over, for the reaoan sthat any corssing over or exceeding of the threshold wouldd immeidately make it susceptible to a plea of violation of the fundamental rights in the matter of getting employmeent. The commumnciastion dt 22.3.13 by the EO (seocndary)/R4 in clear and categoric terms states that the 30% hosrizontal resevation for women category was already completed in view of which it is apparpent there was no question of giving any preference to the women candidaqtes in the mattger of filling of the vacaqncy of SS as advertized on 21.4.12. So also the decision dt 12.12.14 (pg. 83-89) taken by the EO, in pursuance to the order of this Court dt 21.11.14 in WP 939/14, reiterates that for othe acedamic year 2011-12 the reservation for the women category was already filled upona dn therefore it could not be said that the post as advertised by the adverisement dt. 21.4.12 was reservedf or SC women category. This being the position, merely because the advertisement indicatqed that there would be aprefence to the women applicants, that by itself would not mean tghat the post was reserved for a candicate from the women category or that a woman was to be preferred to a male in considering the issue of filling of the said post.

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That being the polsiton, in my consdidered opinion, since the horizontal 30% reservation for woman category was already filled up, it could not be said that the said porefernece indicated in the adverisement would mean that the R1 ought ot have been preferred over and above the petitioner.

That takes me to the next contention that even though petitioner had secured more marks in B.Ed examination, he had no right to be appointed on that basis. It is an admitted position that while considering the fulfillment of the qualificaiotn for filling ini the post, the nubmer of mkarks secured in the B.Ed examination is no criteria/ What is necessary is the passing of the B.Ed exmaination and no otherwise, and therefore, in my consideration noasthing turns upon the issue whetehr the petitoinre had secured more marks in the B.;Ed exmaination.l Thhous this is oane of the ocntentoin considerred by the learned EO, in the order dt 12.12.14, that by itself would not make the appoihntemnt of the petitoinre illegal. The next contention is that the R1 had obtianed more marks in written exmaination and interview and there fore, ought to havfe been selected. The dtails of the marks obtained by the respectgive candidates have been indicated in the note placed on record by the LSrCR1, which indicate that the petiotner had secured 18 ½ maqrks in the written exmaination and 13 marks in the interveiw, total 48 ½ , whereas the R1 had secured 23 ½ in the writen exsam and wp4973.21.odt

46 maqrks in isnterview, totaling to 69 ½. It is submitted that since the R1 haqd secxure dmore nubmer of maqrks and since there was a apreference, for the women candidaqte, it was she who ought to havfe been appointed. Mr. LCP has invited my attention to the GR dt 27.4.2000 prescribing the scheme for selection and appointment in the schools, clause 11 of which indicates that the llist of the candidates have to be prepared on the basis the marks secured in 10th 12th and B.Ed. It also indicates in sub- clause 6 of clause 11 that the interview is restricted only to the observing of the personality of the candidate and in those interviews no marking should be given and the selelction of the candidate would be on t he basis of the marks secured in D.Ed/B.Ed written examination. Thje above sub-clauses 3 qand 11 of the aforesaid GR dt 27.4.2000 which held the field on the date when the selectkion was made clearly indicates that the appointment has to be made on the basis of the marks secured in the D/.Ed/B/.Ed examination. The larned tribunal has clearly ignored this polsition in arriving at a contradictory finding.

That takes me to the submission that the R1 had c;laimned to have given monetory considreation to R3 society to the tune of Rs. 17 lakh 50 thousand for the purpose of securing the appointemknt. Such avertments are contanined in para , 7, 8 and 9 of the memo of appeal filed by the R1 befor eht elearqned tribuna. T he learned wp4973.21.odt

Tribunal in the imp judgment though has noted these allegatqions in para 42 to 44 however such conduct on part of the R1 has been tried to be justifed by the R1 which considering that the tribunal has been appointed to render justice ought not to have been done. Once having held that t he R1 had given a bribe to the society, for being appointed, the learned tribunal oaught to have dealt with this submission in a manner befeating the tribunal, and not by justifying the same. Though the Hon Apex Court in Shayma Prashant Raje vrs. Ganpatrao 2001 (1) MHLJ has laid down the parametres for exercise of the jurisdiction under Article 226 and 227 of the Constiutution and held that the High Court cannaot covert itself into a court of appeal abnd examine for igtself the correctness of the deckisoin impunged na decide what is a proper view to be taken or ordered to be made, however, in the saqme judgmetn, it hasalso been held that if on a mere perusal of the order of the inferior tribuinjal, if the high court comnes to a conclusion that such tribunal has committed a manifest error or has ignored material or misconstrued dmaterial on record, the High Court would be fully juastifying in intering with the findisngs of the tirubnawl As indficated abocvfe, the Tribunal having found that the R1 had indulged into an action of birbe to R3 in the matter of securing an aemployment, it could not have justified the said action. That apart, when the 30% horizontral roster for woman was already filled, the learqned triubgnqal could not have held that the same be wp4973.21.odt

crossed in order to give the R1 an appointment. Thus in my considreed opinion that this is a fit case where the judgment of the tribunal needs to be interfered considering what has been discussed above. The imp judgment is there fore quashed and set aside and the appeal filed by R1 is dismissed. No order as to costs.

Sr.No.68

JUDGE rvjalit

Digitally sign byRAJESH VASANTRAO JALIT Location:

Signing Date:23.12.2021 19:20