Deepak Marotirao Narwad vs The Maharashtra State Power ...
2021 Latest Caselaw 2929 Bom

                                      1                             118-WP-6779-19.odt




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                 WRIT PETITION NO. 6779 OF 2019

        Deepak s/o. Marotirao Narwad,
        Age : About 34 Years, Occ. Service as a
        Junior Security Officer,
        Thermal Power Station,
        Parali Vaijanath Tq. Parali Dist. Beed.
        R/o. New TPS Colony, Quarter No.E5/6,
        Parali Vaijanath Tq. Parali Dist. Beed.                ..        Petitioner


                 VERSUS
1.      The Maharashtra State Power Generation
        Company Limited,
        Through its Chairman and Managing Director,
        Address: Prakash Gadh, Anant Kanhekar Road,
        Bandra East, Mumbai- 400051.

2.      The Executive Director (HR),
        MAHAGENCO (Maharashtra State
        Power Generation Company Limited.),
        Address : Prakash Gadh, Anant Kanhekar
        Road, Bandra East, Mumbai- 400051.                     ..Respondent
                                 ...
Mr. Ajinkya Reddy, Advocate for petitioner
Mr. A. M. Gaikwad, Advocate for respondents no. 1 and 2
                                 ...

                               CORAM : SUNIL P. DESHMUKH AND
                                        ABHAY AHUJA, JJ.

                               DATE       : 15th February, 2021

JUDGMENT:

Rule. Rule made returnable forthwith and heard finally, with

the consent of the parties.

2. Petitioner is in employment of respondents as Junior Officer

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(Security) from 27-11-2012. Respondents had issued an

advertisement dated 16-01-2017 for various posts, inter-alia, nine

posts of Deputy Manager (Security). From said nine posts, one

post was reserved for V.J. (A) category along with other reserved

and open posts, as under -

Sr.No. Category Number of Posts

3. Petitioner had applied for the post of Deputy Manager

from V.J. (A) category. As required, he had participated in selection

process. Petitioner appeared at online examination and also was

interviewed. A list was published on 19-07-2017 which has been

referred to as provisional list. One Nagnath Hanumanth Pachave

was shown to have been selected from V.J.(A) category. Petitioner

was shown to be at serial no. 2 in wait list from V.J. (A) category

containing two names. One Mithun Prem Rathod was above

petitioner in said list. Based on said provisional list, candidates

were called for document verification on 03-08-2017. On

verification, it had surfaced that two persons above petitioner in the

provisional list, namely, Mr. Pachave and Mr. Rathod did not fit into

the eligibility criteria for the post of Deputy Manager (Security).

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After that the respondent - company came out with lists of eligible/

non-eligible candidates on 22-09-2017. According to petitioner, the

list of eligible candidates was the final select list. Petitioner was

listed at serial no. 16 in the eligible candidates' list annexed to the

petition at Exhibit 'J' as displayed on respondents' site

portal/website, showing him from wait list.

4. However, for quite sometime, since there were certain

orders passed by court putting restraint on recruitment, no

appointments were made. Subsequently in 2018, while appointment

orders were issued by the respondents, since petitioner did not

receive any, he had approached respondents. He had made a

representation to the respondent-company, but except oral

assurances, no action was taken in that direction. He, thus, has

approached this court by present writ petition.

5. It is submitted that from the very eligible-final select list

dated 22-09-2017, the respondent-company has issued

appointment orders to those candidates, who were held to be

eligible for appointment along with petitioner in the same selection

process, but the petitioner has been arbitrarily singled out and is

discriminated, considering him to be on wait list.

6. It is the case of petitioner that in final select list,

petitioner is the only eligible candidate as against the post of

Deputy Manager (Security) reserved for V.J. (A) category. It is

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submitted on his behalf that the candidate at serial no. 1 in the final

list, who though is shown to be of V.J. (A) category, being eligible

according to score from open category had in fact been so put in

the final select list.

7. The respondent - company has filed its reply contending

that the petitioner does not have any vested right to be appointed

and since there is no such legal right, no mandamus can be issued.

It is also contended that the company has taken decision not to

operate the wait list and not to appoint anyone on the post of

Deputy Manager except those given appointment letters. It is also

contended that the company has not issued appointment letter to

any wait listed candidate. It is further submitted that the guidelines

dated 27-07-2017 specifically make it clear that the select /wait list

are purely of provisional nature and the respondent-company

reserves right to cancel the selection of the selected/wait listed

candidate based on operational needs of the company.

8. In re-joinder, petitioner contends that the candidate by

name Satish Sevakram Birkhede from O.B.C. category has been

moved from select list to wait list in view of the fact that the

Assessment and Testing Agency (ATTEST) based on application

made by one Mr. Tushar Velis, has corrected his score which moved

him into the select list and Mr. Birkhede in the process would move

from select to wait list. It is sought to be pointed out The ATTEST

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result is of 03-07-2018. Appointment order came to be issued to

Satish Birkhede on 10.09.2018. It was, thereafter, appointment

order dated 19-07-2019 has been issued to Tushar Velis. The

petitioner has referred to that the appointment of Mr. Tushar Velis

is of the 7th candidate coming from the O.B.C. category on the post

of Deputy Manager (Security).

9. The learned counsel for the petitioner Mr. Ajinkya Reddy

submits despite petitioner stands selected in the selection process,

he came to be branded as wait list candidate and it is now being

argued that there has been decision not to appoint wait list

candidates and it is prerogative of the employer to appoint or not to

appoint or to operate or not to operate the select list or wait list. It

is being referred to that it is not the case that posts are not

available or vacant pursuant to the advertisement. Learned counsel

Mr. Reddy submits that, petitioner's candidature is not being treated

properly, the same is receiving discriminatory treatment.

10. He submits, post reserved for V.J.(A) category has not

been filled up. Petitioner is the only candidate from V.J. (A)

category, available in the eligible list (final select list) continued

with tag of wait list. His claim to the post of Deputy Manager

(Security) which is reserved for V.J. (A) category ought to be

considered being entitled to be in select list. Learned counsel

contends that in this situation, petitioner's name had ascended from

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wait list to eligible list dated 29-09-2017 and his name ought to be

considered as in the select list. In the eligible list published referred

to above, the remark in respect of petitioner wrongly considered

him to be from wait listed candidates. It is submitted that the

respondents have deliberately and with a view to deny the

petitioner of his legitimate claim, considered the petitioner to be on

the wait list and arbitrarily have not given the appointment order.

11. He submits that all the arguments in resistance in

petitioner's case, have not come in the way when Mr. Velis' case has

been considered. Initially, Mr. Velis had been shown to have scored

less marks and did not stand in merit and thus had not figured in

any list at all, yet, he has been selected and appointed from open

category after revision of marks by ATTEST. It is being contended

that in such a case, there has been increase in open category

appointments. Whereas, unlike Mr. Velis' case, in the selection

process, petitioner's name had figured in the eligible list when

candidates above him were not eligible. He submits that

appropriate treatment is required to be given to the petitioner.

Petitioner's case stands on even better footing than that of Mr.

Velis.

12. He submits that candidate from O.B.C. category Mr.

Birkhede, from select list gets relegated to wait list and to him too

appointment order has been issued, upon correction made by the

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ATTEST in the case of Mr. Velis, then why should not the petitioner,

who is branded as wait list candidate although he ought to be and

indeed is in select list from V.J. (A) category and the post is lying

vacant in view of the order passed by this court on 12-06-2019,

continued from time to time, be appointed to the post of Deputy

Manager (Security). He, therefore, submits that the act / omission

of the respondent- company is not only discriminatory but is also

arbitrary. Petitioner also reiterates that there is no other candidate

eligible for being appointed in this category as the only other

candidate from said category, has already been appointed in the

open category on merits.

13. Learned counsel for the petitioner, during the course of

submissions, has relied on a decision of a division bench this court

in writ petition no. 6368 of 2019 with writ petition no. 6471 of 2019

filed against present respondents, wherein in paragraph No. 22 it

has been observed, thus,

" 22. .. .. .. but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they exist on the date of advertisement .. .. .. "

He points out that the division bench had relied on the

Supreme Court decision in the case of N.T. Devin Katti and others Vs.

Karnataka Public Service Commission and others reported in (1990) 3 SCC 157.

Learned counsel submits that the State or its organ or an outfit

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would not be able to act arbitrarily and on whims and fancies of the

personnel occupying the authoritarian posts. Learned counsel

submits that while posts were advertised and are available and are

vacant, there is no justification for the decision about not to appoint

a person who legitimately deserves the post.

14. Learned counsel goes on to submit that as per settled

law, the appointing authority cannot and shall not deny

appointments on its whims and when a person has been selected

and there is a vacancy which can be offered to him, keeping in view

his merit position, then ordinarily there is no justification to ignore

him for appointment. He refers to paragraph no. 10 of the decision

of the Supreme Court in the case of R. S. Mittal Versus Union of India

[(1995) Supp (2) SCC 230 Head Note A] to emphasise this point. He

further submits that as demonstrated, the act of the respondent i.e.

company in not appointing the petitioner to the post of Deputy

Manager (Security) is arbitrary and discriminatory. He submits that

in matters of issuance of appointment orders the State does not

have a licence to act in arbitrary manner and no discrimination can

be permitted.

15. The learned counsel submits that the writ of mandamus

can always be issued and is warranted when denial of appointment

is due to arbitrary and discriminatory decision of the recruiting

authority. In case of discrimination, the reasons apply with equal

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force. He relies upon decision of the Supreme Court in the case of

Shankarsan Dash Versus Union of India [(1991) 3 SCC 47] and Manoj Manu and

another Versus Union of India and others [(2013) 12 SCC 171, Head Note 'C'].

He submits test for determining arbitrariness or

discriminatory act on the part of respondent - employer would be

conduct, granting appointment to the similarly placed candidate

ignoring legitimate claim of the persons like petitioner. He submits

that said test is an exception to the proposition of the law that

selected candidate has no absolute right to claim appointment. He

relies upon the decision of this court (Aurangabad Bench) in the

case of Suresh s/o. Bhujangrao Ingole Versus State of Maharashtra and others (Writ

Petition No. 10904 of 2016).

16. He refers to Prem Prakash Versus Union of India And Others

[1984 (supp) SCC 687] submitting that once person is declared

successful and once the person is selected candidate, appointing

authority has the responsibility to appoint him even if the number

of vacancies undergo change. Mr. Reddy submits, it is amply

demonstrated in present matter, discrimination is writ large and the

act and/or omission in not issuing appointment order to petitioner is

absolutely arbitrarily. He, therefore, urges to allow the writ petition

and direct the respondent to appoint him as V.J.(A) category as

Deputy Manager (Security).

17. Learned counsel Mr. Anil M. Gaikwad, appearing on

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behalf of respondents reiterates the contentions in affidavit-in-reply

and submits that there is no substance in the submission on behalf

of petitioner for the reason that when the selected candidate has no

indefeasible right to appointment then a wait listed candidate would

have none. He submits that petitioner has been in waiting list

declared on 19-07-2017 which has also been so shown even in the

eligibility list published subsequently. He submits that appointment

orders have been issued to only the selected candidates from the

list and not a single candidate on the wait list has been appointed.

He submits that there is clear term in the advertisement that

number of vacancies given in the advertisement would be

fluctuating and it is open for the respondents to appoint or not to

appoint candidates who have been selected pursuant to the

advertisement. There were two candidates above petitioner, though,

those turned out to be ineligible in the verification process,

decision has been taken not to appoint wait listed candidates. As

such, petitioner is not entitled to mandamus as sought. He submits

that even the period of one year has been over after publication of

the select list and life of the waiting list is only for a year. He

submits that authorities had taken decision not to appoint waiting

list candidates, and therefore, there is no question of invoking

powers of extending the life of wait list for the petitioner.

18. He submits that so far as the Velis' case is concerned, it

is on different footing altogether. Initially in the selection process,

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his merit score had been seen less but later on, in the corrective

process, there had been rectification raising his score which enabled

him to be eligible to be considered. It was not his fault and,

therefore, his case has been treated accordingly and he has been

appointed in the post meant for open category.

19. Learned counsel for the respondents Mr. Anil Gaikwad

has relied on a few judgments in support of his submissions that,

selected candidates have no right to be appointed, existence of

vacancy does not give legal right to the candidates in the select list

and if there is no legal right, no mandamus can be issued viz; The

State of Haryana Versus Subhash Chander Marwaha and others , AIR 1973 SC 2216,

Jatinder Kumar and others Versus State of Punjab and Others, AIR 1984 SC 1850,

Bihar State Electricity Board Versus Suresh Prasad and others, AIR 2004 SC 1724,

Union of India and others Versus Kali Dass Batish and another, 2006 AIR SCW 227.

He submits that Shankrsan Dash Versus Union of India, AIR 1991 SC 1612

(Constitution Bench), Dinesh Kumar Kashyap and others Versus South East Central

Railway And Others, (2019) 12 SCC 798 also endorse aforesaid view with a

rider that decision shall be bona fide and for appropriate reasons.

He, therefore, submits that the company is under no legal duty to

fill up all or any vacancies. He submits that the posts are occupied

on the basis of operational need of the organization depending upon

the demand and supply of electricity, and therefore, it may not be

possible to appoint the petitioner.

20. The learned counsel Mr. Gaikwad further submits that

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the petitioner has come to the court long after expiry of the period

of wait list and on that count alone, the petition deserves to be

thrown out.

21. During the course of hearing and considering the facts

and circumstances of the case, possibility had been explored

whether the respondent- company would consider if the matter

could be worked out at its end. Learned counsel for the respondent-

company has reverted expressing the company's inability.

22. While aforesaid are the submissions on behalf of the

parties, it appears to emerge that in the selection process, a

provisional list was published on 22-09-2017 and one Mr. Pachave

had been shown as selected candidate in the list from V.J.(A)

category. Petitioner's name has been shown in the wait list of VJ(A)

category at serial no. 2. Above him in said wait list was one Mr.

Rathod at serial no. 1. In the scrutiny thereafter, it had transpired

that Mr. Pachave from the provisional select list as well as Mr.

Rathod at serial no. 1 from the wait list were not eligible resulting

in elimination of their candidature from the provisional list. Upon

the scrutiny and verification process, a list of eligible candidates had

been prepared in which petitioner's name had also figured at serial

no. 16. Under the remark column, he was shown to be from wait

list. A list of ineligible candidates was also prepared and displayed,

listing ineligible candidates with the reasons therefor.

                                              13                         118-WP-6779-19.odt




23.              Going         by   the   reasons   eliminating       the     cases       of

Mr. Pachave and Mr. Rathod, their names could not to have figured

legitimately in the list of 22-09-2017. In such a case, it emerges,

while for V.J. (A) category one post is reserved, the petitioner is the

eligible candidate from said category available for appointment as

other V.J. (A) candidate was selected in open category. When on

the day of preparation of eligible list, going by the reasons of

ineligibility of said two persons, who had been ineligible all along,

necessary rectification had taken place showing the petitioner in

eligible list albeit showing his origin to be from wait list. It appears

ineligibility of the persons had been realized on the representation

of the candidates on the verification of the documents which took

place later. In process, it surfaces that in the present case ineligible

candidates had figured in provisional select and/or wait lists above

petitioner. The candidature of the petitioner appears to have

suffered for no fault of his. Apart from aforesaid while corrective

and rectifying action has been taken in the case of Mr. Velis who

had not figured in any of the lists at all, since he had participated in

the recruitment process, his case has been considered, whereas,

the petitioner appears to have been permanently branded as wait

listed candidate despite the discrepant / defective applications of

the other two V.J. (A) category ineligible candidates.

24. The scenario depicts on the day of verification and scrutiny,

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petitioner's candidature deserves treatment as a selected

candidate. His name, in fact, has figured in the eligible candidate

list, however, under the remark column, he is shown to have been

wait listed candidate. Tag of wait list in eligible list would have no

significance beyond showing its origin as shown in provisional list

of 14-07-2017 and would have no efficacy, as status of the

candidate under selection process would undergo evolutionary

alteration.

25. One more event is worth taking note of that, in the case

of Velis there had been a communication dated 03-07-2018 by the

ATTEST (Test Conducting Agency), wherein marks secured by Mr.

Velis had been increased, and accordingly, there had been an

instruction that Mr. Satish Sevakram Birkhede, from O.B.C category,

would be relegated from the select list to wait list. Yet, even

thereafter, said Mr. Birkhede had been issued appointment order on

10th September, 2018. This is one more instance which shows

inconsistency in approach of the respondent which is arbitrary and

capricious.

26. It would be pertinent to refer to and reproduce

paragraphs 19 and 20 from decision in writ petition no. 6368 of

2019 (supra)

" 19. Rule 29 (a) of the Recruitment Regulations, 1961 relates to advertisement, recruitment and wait list of selected candidates. According to Rule 29 (a) of the Recruitment Regulations, 1961 the selection committee

15 118-WP-6779-19.odt

concerned may recommend names of suitable candidates selected after due advertisement which are to be kept on the wait list for consideration against posts reserved for direct recruitment and such list shall be deemed to be valid for twelve months. It further provides that Technical Member, Accounts Member, Member (Administration) and Technical Director concerned are authorized to extend the validity of the wait list of the candidates selected by the various Selection Committees for the posts of their respective wings, even if they are partly operated for a further period of one year, whenever consider necessary. It further provides that such persons who are likely to be absorbed in appropriate vacancies within a reasonable period may be informed of their names having been kept on the wait list for being absorbed in future vacancies.

20. Respondents no. 2 and 3 even though clothed with such powers, went on stating that validity period of wait list/select list of one year is over and appointment orders cannot be issued. There was no hurdle before respondents no. 2 and 3 to exercise their powers vested with them as per Rule 29 (a) of the Recruitment Regulations, 1961. Petitioners cannot be blamed for expiring of validity period of wait list/select list, for inaction on the part of respondents no. 2 and 3 in view of Rule 29 (a) of the Recruitment Regulations, 1961. "

27. It would be imperative to consider, in given facts and

circumstances, in Shankarshan Vs. Union of India ( supra) and in

Dinesh Kumar Kashap and Another Vs. South East Central Railway

(supra) the Supreme Court has observed that a decision not to

appoint should be taken bonafide and not arbitrarily and that

looking at our country's position, lot of candidates are required to

spend time and incur expense in the recruitment process and in

the same when candidates are declared successful, they have

reasonable expectation that they would be appointed, albeit, may

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not be as vested right. However, the State must give some

justifiable reason for not filling up of the posts. The State is bound

to act according to Article 14 of the Constitution of India. It cannot

be without any rhyme or rationale decide not to fill up the post. It

must give plausible reason for not filling up the post. The

justification must be reasonable and should not be arbitrary,

capricious or whimsical exercise of discretion.

28. It has been contention of the respondents that there

had been a decision not to appoint wait list candidates. However,

there has been no material placed on record in respect of the

communication issued to the petitioner in June-2019 about decision

having been taken that wait list candidates would not be appointed.

It is also not the case, the decision, if any, had been preceded by

procedure therefor either meeting or resolution. Decision not to fill

up the post has to be bona fide for appropriate reasons and not

arbitrary, whimsical and/or fanciful.

29. Having regard to foregoing facts, circumstances, discussion

and looking at the decisions relied on, on behalf of the petitioner

and aforesaid Supreme Court decisions, it appears petitioner would

have legitimate claim to be considered for appointment. It appears

that paragraphs no. 19, 20 and 22 reproduced herein-above earlier

from decision in Writ Petition No. 6368 of 2019 and other ( supra)

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would have full play over the situation coupled with the fact that

there are no justifiable reasons coming forth and much less

supported by any material about the basis there for.

30. As such, we deem it appropriate to direct the respondents to

issue appropriate appointment order to the petitioner in right

earnest preferably within a period of six weeks from the date of

receipt of this order.

Rule made absolute in the aforesaid terms.

31. Writ Petition, as such, succeeds and disposed of, accordingly.

[ ABHAY AHUJA ]                          [ SUNIL P. DESHMUKH ]
    JUDGE                                        JUDGE



YSK/