Bombay High Court

Angad Dnyanoba Shitale And Others vs The State Of Maharashtra And ... on 4 May, 2021

Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  WRIT PETITION NO. 11843 OF 2017
               WITH CIVIL APPLICATION NO. 5428 OF 2020

1.    Angad Dnyanoba Shitale
      Age : 30 Years, Occ. Nil
      R/o. At Post Ukhali (BK) Tq. Sonpeth
      Dist. Parbhani

2.    Vaishnavi Prasadrao Panchal
      Age : 22 years, Occ. Nil
      R/o. At Post Hatta Tq. Basmat
      Dist. Hingoli

3.    Kanhopatra Haribhau Dolare
      Age : 27 Years, Occ. Nil
      R/o Yashwant Nagar, TPS Road
      Osmanabad Dist. Osmanabad

4.    Ganesh Tulshiram Jadhav
      Age : 31 Years, Occ. Nil
      R/o. At Post Waregaon
      Tq. Phulambri, Dist. Aurangabad

5.    Dhonduram Bapurao Sagar
      Age : 26 Years, Occ. Nil
      R/o At Post Jalkot Tq. Tuljapur
      Dist. Osmanabad

6.    Farug Gafur Khatik
      Age : 26 Years, Occ. Nil
      R/o At Post Janve Tq. Amalner
      Dist. Jalgaon

7.    Manjula Tryambakrao Kalaskar
      Age : 37 Years, Occ. Nil
      R/o Shivraj Co-operative Housing Society
      House No. 55, Maniknagar, Ambad link
      Road, Nashik

8.    Prakash Pandurang Saindane
      Age : 30 Years, Occ. Nil
      R/o 20, Om colony, Subhash Nagar




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       Warkhedi Road Old Dhule
       District Dhule

9.     Priyatama Vitthal Ingle
       Age : 34 Years, Occ. Nil
       R/o. At Post Belkhed Tq. Telhara
       Dist. Akola

10.    Maroti Baban Tonge
       Age : 32 Years, Occ. Nil
       R/o Kegaon Post Wegaon,
       Tq. Maregaon, Dist. Yawatmal

11.    Pranav Sukhadeo Koche
       Age : 34 Years, Occ. Nil
       R/o. Dr. Zakir Hussain Ward,
       Near C.J. Patel college,
       At Post Tirora, Dist. Gondia

12.    Shubham Digambar Gawai
       Age : 23 Years, Occ. Nil
       R/o At Post Malkhed (Kd)
       Tq. Ner Dist. Yawatmal

13.    Amol Jagdeo Wankhade
       Age : 25 Years, Occ. Nil
       R/o At Sonarkheda, Post Markanda
       Tq. Bhatkuli, Dist. Amravati.           .... PETITIONERS

                VERSUS

1.     The State of Maharashtra
       Through its Secretary,
       Power Department,
       Mantralaya Mumbai

2.     The Managing Director,
       Maharashtra State Power Generation Company Ltd.,
       Plot No. G-9, 6th Floor,
       Prof. Anant Kanekar Marg,
       Bandra East, Mumbai - 400051

3.     The Executive Director, (Human Resources)
       Maharashtra State Power Generation Company Ltd.,




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      Plot No. G-9, 1st Floor,
      Prof. Anant Kanekar Marg,
      Bandra East, Mumbai - 400051.                 ... RESPONDENTS

Mr. Anandsing S. Bayas, Advocate for the petitioners
Mr. A. R. Kale, AGP for respondent No. 1/State
Mr. A. M. Gaikwad, Advocate for respondent Nos. 2 and 3.


                                    CORAM : S. V. GANGAPURWALA &
                                            SHRIKANT D. KULKARNI, JJ.

                                    RESERVED ON           : 30/04/2021
                                    PRONOUNCED ON         : 04/05/2021

JUDGMENT (Per - Shrikant D. Kulkarni, J.)

1. Rule. Rule made returnable forthwith. With consent of

parties, petition is taken up for final disposal at admission stage.

. Factual matrix.

2. The Maharashtra State Power Generation Company Ltd.,

(for bravity 'MSPGC Ltd.,') / Respondent Nos. 2 and 3 by way of

direct recruit had advertised 947 posts of Technician-III. Out of 947

posts, 473 posts were reserved for general (Non Pragat Kushal) and

remaining 474 posts were reserved for special category meant for

project affected candidates (Pragat Kushal). The petitioners are

possessing the requisite qualification of diploma in Industrial

Training Institute (ITI) and as such they are qualified for the said

post of Technician-III. The petitioners had applied for the said post

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of Technician-III in view of the advertisement published by MSPGC

Ltd., In the advertisement, it was specifically stated that the

selected candidates may be accommodated in any power station run

by Power Generation Company.

3. On 07/05/2016 and on 08/05/2016 the respective

petitioners had appeared for the examination. On 10/06/2016 the

result of final examination was declared by MSPGC Ltd. They

declared select list and waiting list and published notification dated

01/10/2016. It was specifically mentioned in clause 8 of the

notification that if the candidates from select list are found

disqualified during course of document verification process, the

candidates from the waiting list would be considered. The names of

petitioners find place in the waiting list. 947 candidates were on the

select list. At the time of document verification process out of 947

selected candidates, 166 candidates were found ineligible and thus

disqualified. Some of the candidates from select list had refused to

join the post. As such there are 215 posts which fell short to

complete the recruitment of 947 posts. The MSPGC Ltd has declared

that the select list and wait list would remain in force for one year

from the date of its publication meaning thereby the list would be in

force till 01/10/2017.

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4. According to the petitioners though 215 posts were not

filled in from select list, the respondents are not responding to

consider the candidates from the waiting list wherein the names of

petitioners are appearing. The petitioners had submitted their

representations on 20/07/2017 and 03/09/2017 to respondent Nos.

2 and 3 authorities and requested to issue appointment orders. The

representations submitted by the petitioners are not considered by

the respondent authorities. In the above background the petitioners

are before us. They are seeking directions to respondent Nos. 2 and

3 to consider their claim for the appointment to the post of

Technician-III since their names appear in the waiting list when

there are more than 200 vacancies with MSPGC Ltd.

5. We have heard Mr. Anandsing Bayas, learned Advocate

for petitioners, Mr. A. R. Kale, learned AGP for respondent No.

1/State and Mr. A. M. Gaikwad, learned Advocate for respondent

Nos. 2 and 3 at length. We have also gone through the

advertisement published by MSPGC Ltd. We have also perused

select list and waiting list prepared by MSPGC Ltd., for the post of

Technician-III for general (Non Pragat Kushal) and special category

meant for project affected candidates (Pragat Kushal). Also perused

the reply affidavit filed on behalf of respondent Nos. 2 and 3 and

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rejoinder filed on behalf of petitioners and documents and papers

relied by both the sides.

Submissions of learned Advocate for the petitioners.

6. Mr. Bayas, learned Advocate for the petitioners

vehemently submitted that the names of petitioners appeared in the

wait list. Some of the petitioners are from open category, some

from scheduled caste category, some from OBC category and one

from NTC. He submitted that in document verification process 166

candidates were found ineligible and they were disqualified. Some

of the candidates from select list had refused to join the post of

Technician-III. As such there are 215 posts still lying vacant. As per

the clause of the advertisement respondent authorities are required

to consider the names of candidates on the waiting list. The

respondent authorities ought to be considered the claim of

petitioners who are on wait list for the post of 215 which are still

lying vacant as per the advertisement given for 947 posts. It is

expected from the Generation Company to operate the waiting list

when the waiting has force for a period of one year from its

publication. The respondent authorities are not considering the

representations given by the petitioners. The petitioners have

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genuine claim on the post lying vacant in view of the clause

published in the advertisement.

7. Mr. Bays submitted that the claim of petitioners cannot

be denied even though they are from wait list particularly when all

the posts advertised are not filled in by the respondent authorities.

Mr. Bays has placed his reliance on following stock of citations in

support of his argument.

1. Dinesh Kumar Kashyap and others V/s South East Central Railway and others (2019) 12 Supreme Court Cases 798.

2. Gujarat State Dy. Executive Engineers Association V/s State of Gujarat and Others 1994 Supp (2) Supreme Court cases 591.

3. State of J & K & Ors. V/s Sat Pal 2013 DGLS (SC)

4. Surinder Singh and Other V/s State of Punjab and Another (1997) 8 Supreme Court cases 488.

5. A.P. Aggarwal V/s Government of National Capitay Territory of Delhi and another AIR 2000 Supreme Court 205.

6. Jai Narain Ram V/s State of U.P. and others (1996) 1 Supreme Court cases 332.

7. R. S. Mittal V/s Union of India 1995 Supp (2) Supreme Court cases 230.

8. Virender S. Hooda and others V/s State of Haryana and another AIR 1999 Supreme Court 1701.

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9. Madan Lal and others V/s State of J. & K. and others AIR 1995 Supreme Court 1088.

10. Decision of Division Bench at Aurangabad in Writ Petition No. 12845 of 2018 (Maharashtra Public Service Commission Vs. Jeevan Nivruttirao Wader etc.) decided on 15/02/2019.

11. Decision of Division Bench at Aurangabad in Writ Petition No. 6368 of 2019 (Dnyaneshwar s/o Abhimanyu Wakade and others Vs. The State of Maharashtra and others) decided on 30/04/2020.

8. By taking into consideration of above stock of citations

Mr. Bayas submitted that though the names of petitioners are

appearing in the wait list, they have right to be appointed when the

Generation Company has not fulfilled all the posts which are

advertised. The claim of the petitioners need to be considered.

9. Submissions of learned Advocate for the Maharashtra

State Power Generation Company Ltd.,/respondent Nos. 2 and 3.

10. Mr. A. M. Gaikwad, learned Advocate for respondent

Nos. 2 and 3 submitted that present petitioners are on waiting list

prepared in the year 2017. They are not from select list. He

submitted that even selected candidate has no indivisible right to

get appointment order. He further submitted that even existence of

vacancies does not give legal right to candidate in select list.

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According to Mr. Gaikwad no mandamus can be issued when there is

no legal right. To support the argument, Mr. Gaikwad has placed his

reliance following citations.

1. The State of Haryana Vs. Subhash Chander Marwaha and others, AIR 1973 Supreme Court 2216.

2. Jatinder Kumar and others Vs. State of Punjab and others, AIR 1984 Supreme Court 1850.

3. Bihar State Electricity Board Vs. Suresh Prasad and others, AIR 2004 Supreme Court 1724.

4. Union of India and Ors. Vs. Kali Dass Batish and Anr. 2006 AIR SCW 227.

11. Mr. Gaikwad, learned Advocate for respondent Nos. 2

and 3 sonorously contended that it is not obligatory on the part of

the MSPGC Ltd., to fill up all vacancies. The MSPGC Ltd., is under

noble legal duty to fill up all vacancies. But decision to that effect

not to fill up all posts must be bonafide for appropriate reason. To

buttress the argument Mr. Gaikwad has placed his reliance on

following citations.

1. Shankarsan Dash Vs. Union of India, AIR 1991 Supreme Court 1612.

2. Dinesh Kumar Kashyap and others Vs. South East Central Railway and others, (2019)12 Supreme Court Cases 798.

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12. The following admitted scenario throws light regarding

post advertised, reserved post, general post, number of candidates

on select list and wait list.

        1.                  2.                3.                4.                  5.
Number     of General                    Reserved for Number      of Number       of
post          posts                      special class candidate in candidate in
advertised                                             the    select waiting list
                                                       list

        6.                  7.                8.                9.                 10.
Number      of      Number      of       Number      of    Number     of    Number    of
candidate           candidates           candidate         candidates       vacancies
appeared for        disqualified         refused     to    joined    on     available
document            in document          join inspite      the post         according to
verification        verification         of       their                     the
                                         selection                          advertiseme
                                                                            nt

13. During course of argument Mr. Gaikwad invited our

attention to the additional affidavit sworn on behalf of respondent

Nos. 2 and 3 and submitted that Unit-3 at Parli TPS is

decommissioned. It is not enough Unit-5 at Koradi TPS and Unit -2

at Bhusawal TPS are also decommissioned in view of resolution

passed by the board. The employees who were working in the

above said units were required to be accommodated at other

generation plants as such it was not possible for the MSPGC Ltd., to

fill all the posts advertised. It was a bonafide decision taken by the

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MSPGC Ltd. The petitioners have no legal right to seek appointment

even though certain posts are vacant.

14. It is well settled position of law that selected candidate

has no indefeasible right to be appointed. Existence of a vacancies

does not give legal right to a candidate in select list to claim

appointment and reliance can be placed to that effect in case of The

State of Haryana Vs. Subhash Chander Marwaha and others

(Supra). In case of Jatinder Kumar and others Vs. State of Punjab

and others (Supra) it is held by the Apex Court that a person

selected by the Subordinate Service Selection Board for direct

appointment to the post of Assistant Sub-Inspector of Police has no

legal right to be appointed on the basis of recommendation made by

the said Board.

15. The process of selection for the purpose of recruitment

against anticipatory vacancies does not create a right to be

appointed to the post which can be in force by mandamus. In case

of Madan Lal and others V/s State of J. & K. and others (Supra) it is

observed by the Apex Court that the life of selection list get

exhausted the moment all vacancies are filled up or after expiry of

one year, whichever is earlier that was a case in which the rules

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stipulated the list of panel for a period of one year. Therefore, the

legal position is very much clear that the persons whose names

appearing in the waiting list have no vested right to be appointed

but have a limited right to claim appointment against the post which

were advertised and in case of non joining of candidates or such

advertised post for vacant because of other circumstances.

16. In case of Surinder Singh and Other V/s State of Punjab

and Another (Supra) it is observed by the Apex Court that the

candidates in waiting list have a limited vested right to the

appointment to the extent that when the candidates selected

against the existence vacancies do not join for some reasons, the

wait listed candidates would be entitled for appointment.

17. Having regard to the well settled position of law made

clear in above referred citations of the Apex Court, there is no need

to refer remaining citations relied upon by both the sides.

18. It is not in dispute that 947 posts of Technician-III were

advertised by the MSPGC Ltd. 923 candidates were selected by the

MSPGC Ltd. Further it is not in dispute that 708 candidates from the

select list have joined their respective posts. 166 candidates out of

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947 selected candidates were found ineligible. Some of the selected

candidates from the select list had refused to join their post. As

such, there are 215 posts lying vacant in view of 947 posts

advertised by the MSPGC Ltd.

19. In view of settled legal position even selected candidate

has no indefeasible right to get appointment leave aside the

candidates who are on wait list. Existence of vacancies does not

have legal right to candidate in the select list and that legal position

is also made clear by the Apex Court in above referred citation in

case of Jatinder Kumar and others Vs. State of Punjab and others .

Let us consider what is the difficulty of MSPGC Ltd., to consider the

wait list when 215 posts out of advertised post are still lying vacant.

The MSPGC Ltd., has putforth a reason that the MSPGC Ltd., has

decommissioned its units viz. Unit-3 at Parali, Unit-5 at Koradi and

Unit-2 at Bhusawal and they have accommodated the employees

who were working on the above said units. In this context we have

perused the additional affidavit sworn by Mr. Ajinkay s/o Pandurang

Ingule, Manager, HR of respondent Nos. 2 and 3. More particularly

his affidavit para 2 page 5 throws light on this issue. It is stated by

the Manager, HR that during period from 01-04-2016 to 01-04-2017

decommissioning of the working units and/or due to nonavailability

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of coal and water etc. as many as 217 posts of Technician-III have

become surplus. The Company is taking every effort to

accommodate the surplus employees by accommodating them at

another unit but they have to abolish 88 posts. Meaning thereby

MSPGC Ltd., is unable to consider the request made by the

petitioners.

20. In the case at hand the advertisement was issued for

the post of Technician-III on 08/02/2016 for 947 posts of

Technician-III as per the regulations of MSPGC Ltd., and as per the

advertisement the select list and wait list would remain in force for

one year from the date of publication. As such the waiting list would

be in force till 01-10-2017. The petitioners have filed this petition

on 15-09-2017 and knocked the doors of this Court and sought

directions to consider their prayer for appointment in view of

vacancy though they are from wait list. Before expiry of one year of

the list the petitioners have approached this Court and availed legal

remedy. In this context clause-8 of Advertisement to consider the

names from waiting list is important and supports the case of

petitioners. It is stated in clause-8 of the advertisement issued by

the MSPGC Ltd., that if the candidates from the select list were

found disqualified during the document verification process, the

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waiting list will be implemented. As per the information collected by

the petitioners under RTI Act and placed on record 166 candidates

from select list were found ineligible and therefore they were

disqualified. Some of the candidates from select list had refused to

join the post. There are 215 posts still lying vacant to complete the

recruitment of 947 posts of Technician-III.

21. The following are the details of the petitioners on the

waiting list and available vacancies from the respective category.

The number of Caste candidate who has Sr. Petitioner Name of the category declared Caste No. No. candidate waiting disqualified, remain No. absent and refused to join.

01.     Petitioner       Angad Dnyoba         Open      03
        No. 1            Shitale
02.     Petitioner       Ganesh           Open          18        112 Vacancies
        No. 4            Tulshiram Jadhav                            (Open)
03.     Petitioner       Maroti Baban         Open      27
        No. 10           Tonge
04.     Petitioner       Amol Jagdev           SC       01
        No. 13           Wankhede
05.     Petitioner       Pranav Sukhdev        SC       06         23 Vacancies
        No. 11           Koche                                      (Scheduled
06.     Petitioner       Shubham               SC       13            Caste)
        No. 12           Digambar Gawai
07.     Petitioner       Kanopatra            NT-C    WR-01       08 Vacancies
        No. 3            Haribhau Dolare                         (NTC-Category)

08.     Petitioner       Vaishnavi            OBC     WR-01       33 Vacancies
        No. 2            Prasadrao





                                            ( 16 )               wp11843.17.odt




                        Panchal
09.    Petitioner       Majula              OBC     WR-02
       No. 7            Trimbakrao
                        Kalaskar
10.    Petitioner       Priyatama           OBC     WR-04
       No. 9            Vitthalrao Ingle
11.    Petitioner       Dhonduram           OBC     EA-01
       No. 5            Bapurao Sagar
                                                                    (Other
12.    Petitioner       Faruk Gaffur        OBC      03           backward)
       No. 6            Ghatik
13.    Petitioner       Prakash             OBC      18
       No. 8            Pandurang
                        Saidhane

                Open             -   Open Category
                SC               -   Scheduled Caste
                N.T.C.           -   Nomadic Tribe "C"
                OBC              -   Other Backward Class
                W.R.             -   Women Reservation
                E.A.             -   Earthquake affected

22. On perusing the document produced by MSPGC Ltd.,

more particularly at page No. 119-B, it would be clear that in all 9

selected candidates issued with the appointment order from a

category of Pragat Kushal have not joined their posts of Technician-

III. Further it is evident that 24 selected candidates issued with the

appointment order from general category have not joined their

posts of Technician-III. As such 24 + 9 = 33 selected candidates

seem to have not joined their respective posts of Technician-III.

Those 33 posts are not filled in by the MSPGC Ltd. There was no

impediment for the MSPGC Ltd., to fill up those 33 posts from the

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waiting list candidates obviously as per the seniority and merit and