Smt. Dipali Funde vs The Mission Director State Water ...
2021 Latest Caselaw 1611 Bom

                                          1.98837.20-wpst.odt


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CIVIL APPELLATE SIDE JURISDICTION

               WRIT PETITION (ST) NO.98837/2020


Smt. Dipali Funde                         ..... Petitioner

       Vs.

The Mission Director State Water
& Sanitation Mission & Ors.               ..... Respondents


Mr. Mahadeo A. Choudhari for the Petitioner
Mr. Ashutosh M. Kulkarni, "A" Panel Counsel a/w. Mr. Rajan
S. Pawar, AGP for the State.


                           CORAM:    K.K.TATED &
                                     RIYAZ I. CHAGLA, JJ.

DATED : JANUARY 25, 2021 P.C.

1 Heard. By this petition under Article 226 of the Constitution of India, the Petitioner is challenging the advertisement dated 10.12.2020 issued by the State Water Sanitization Mission i.e. Respondent No.1 for appointment of a several persons on temporary basis.

2 The learned counsel for the Petitioner submits that initially, the Respondent had issued advertisement dated 24.05.2017 calling upon the applications for several posts which are as under:

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                                                 1.98837.20-wpst.odt


Sr. Name of the Post                           No. of Remuneration
No.                                            Post
 1.    Asstt. IEC Consultant                   01      Rs.30,000/-
       (Assistant Information
       Education and Communication
       Consultant)
 2.    Asstt. HRD Consultant                   01      Rs.30,000/-
       (Assistant Human Resource
       Development Consultant)
 3.    M & E Consultant                        01      Rs.30,000/-
       Monitoring and Evaluation
       Consultant
 4.    Sanitation and Hygience                 01      Rs.30,000/-
       Consultant
 5.    Engineering Specialist                  01      Rs.50,000/-
       (Water Quality)
 6.    Coordinator (Water Quality)             01      Rs.30,000/-



3      The learned counsel for the Petitioner submits that

pursuant to the said advertisement, the Petitioner had applied for the post of Assistant Information Education and Communication Consultant. He submits that his application dated 08.06.2017 was accepted by the Respondents and issued office letter dated 05.12.2017 appointing the Petitioner on the said post. He submits that in that Office Order, it was specifically stated that his appointment shall be for 11 months only. He submits that since then, the Petitioner is working with the Respondents.

4 The learned counsel for the Petitioner submits that, now Respondent No.1 issued advertisement dated 10.12.2020 calling upon the application for some other posts in the same organisation. He submits that Respondent No.1

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has failed to call the applications for the said post i.e. Assistant Information Education and Communication Consultant though the same was required by them. He submits that in any case, the Respondent intentionally given the advertisement only for the restricted period for appointment on temporary basis and thereafter they are continuing those persons for years together on temporary basis. He submits that this practice has been deprecated by the Supreme Court in the matter of Md. Abdul Kadir and Anr. Vs. Director General of police (2009) SCC 611 . He submits that the Aurangabad Bench of this Court, in Writ Petition No.5060/2015, vide order dated 24.08.2016 had granted relief to the Petitioner in that matter. In support of this contention, he relies on para 14 and 15 of the said order which read thus:

"14. The learned counsel for the petitioner cited the judgment in the case of Md. Abdul Kadir and anr Vs. Director General Of Police, (2009) SCC 611, wherein the Government of India formulated the Prevention of Infiltration of Foreigners Scheme ("PIF Scheme" for short) for Assam, for strengthening the Assam Government machinery for detention and deportation of foreigners in the year 1960. The scheme had been extended from time to time and was in force even when the above cited judgment was delivered. As per the said scheme, only ex-servicemen were to be appointed to the additional posts for contract period of one year. After the said period of one year, they were being given breaks and reappointed considering their performance. The artificial annual breaks and reappointments were introduced by the State Agency entrusted with the operation of the scheme by issuing circular dated 17th March, 1995. Being aggrieved by process of termination and reappointment introduced by the said circular and consequences thereof, appellant nos.1 and 2 therein, approached the Gauhati

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High Court. The learned Single Judge of the Gauhati High Court allowed the writ petition filed by them and held that the appellants should be continued as long as the scheme was continued by the Government of India. The said decision was set aside by Division Bench of the Gauhati High Court. The decision was challenged before the Hon'ble the Supreme Court, which came to be allowed partly with the following observations.

"This Court has always frowned upon artificial breaks in service. When the ad hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long asthe scheme continues. Ad hoc appointments under schemes are normally coterminus with the scheme (subject of course to earlier terminationeither on medical or disciplinary grounds, or for unsatisfactory service or on attainment ofnormal age of retirement). Irrespective of the length of their ad hoc service or the scheme,they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of thecontinuing Scheme, the ex- serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliationand vicissitudes of annual termination reengagement, merely because their appointment is termed as ad hoc appointments.

We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and reappointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, coterminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the

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principles of service jurisprudence, is liable to be quashed."

15. The learned counsel for the petitioner placed reliance on common judgment in the case of of Ajay s/o Ashokrao Ghatole and others Vs. The State of Maharashtra and others (Writ Petition No.9539 of 2012 and the companion writ petitions), delivered by this Court on 12th March, 2014, wherein, the petitioners claimed to be appointed as Data Entry Operators on contract basis challenged the communication dated 9th November, 2012, issued by the Director of Education (Primary), directing of the Education Officer (Primary), Zilla Parishads in the State of Maharashtra to start the process of recruitment of Data Entry Operators on contract basis afresh. The said writ petition came to be allowed withthe following observations.

"In the present case, the petitioners have undergone the selection process undertaken by the State Government as per its policy. There is no objection to the recruitment process that has been undergone by the present petitioners. The petitioners are not claiming permanent status based upon their temporary employment or absorption or regularisation. What is claimed by the petitioners is that they should be continued in employment till the scheme in question is continued or till there is a change in the requirement of the qualification under the scheme by the Central Government. The case of the petitioners is squarely covered by the judgment of Apex Court in the case of the Mohd. Abdul Kadir (cited supra)."

5 The learned counsel for the Petitioner submits that it is crystal clear from the advertisement dated 10.12.2020 that the Respondents want to appoint the persons for the same purpose, but in different name on a contractual basis only. Hence, the said advertisement itself is liable to be set

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aside.

6 On the other hand, the learned counsel for the Respondents submits that the Writ Petition, as it is filed by the Petitioner, is not maintainable. He submits that the Petitioner, pursuant to the advertisement dated 10.12.2020 had applied for two posts i.e. (a) Divisional Coordinator and Coordinator Information (b) Education and Communication, respectively with the office of the Respondents - Authority. He submits that the Petitioner is an unsuccessful candidate pursuant to the said advertisement. Hence, she has filed the present Writ Petition. In support of this, the learned counsel for the Respondents relies on para 3 of their Affidavit in Reply dated 20.01.2021, which read thus:

"3. At the outset, I say that the present petition deserves to dismiss in limine with exemplary costs. The Petitioner is guilty of non-disclosure and/or concealment of material facts, which go to the very maintainability of the Petitioner. It appears that the present petition is filed on 18.12.2020 challenging the advertisement dated 10.12.2020 issued by Respondent - Authorities. I say that in response to the very same adveritsement, the Petitioner herself has submitted on 21.12.2020 her application for candidature dated 18.12.2020 for two posts of Divisional Coordinator and Coordinator Information, Education and Communication respectively with the office of Respondent - Authorities. The Petitioner participated in the entire selection process for these two posts and offered herself for interview also. However, she was not selected for either of two posts All these facts are not disclosed in the Writ Petition.

As per the record of this petition, the Petitioner sought for an amendment vide Order dated 12.01.2021. Even at that point of time, the Petitioner did not bring these facts to the kind notice of this Hon'ble Court. it is

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settled position of law that one who participates in the selection process, cannot challenge the same after having failed to secure the post. The Petitioner is not entitled to blow hot and cold at one and the same time. On one hand the Petitioner herself has sought for the benefits under the adveritsement in issue and on the other hand challenging the very same advertisement having failed to secure the benefit under the adveritsement. Considering these facts, this Hon'ble Court may kindly dismiss the petition at the very threshold itself on the grounds of non-disclosure and/or concelment of material fact."

7 In view of these facts and para 3 of the Affidavit in Reply, when this court declined to entertain the Writ Petition, the learned counsel for the Petitioner seeks some time to take instructions from his client. At his request, S.O. to 01.02.2021.

(RIYAZ I. CHAGLA, J.)                     (K.K.TATED, J.)




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