Anil Madanji Jadhao vs Maharashtra Public Services ...
2021 Latest Caselaw 15319 Bom

                                   1 & 2-OSWP-1652 & ASWPST-5931-2021

Pdp

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION

                  WRIT PETITION NO. 1652 OF 2021


      Anil Madanji Jadhao                        .. Petitioner
           Vs.
      Maharashtra Public Service
      Commission & Ors.                          .. Respondents


      Mr. S. C. Naidu, Mr. Ramesh Asawa, Mr. T. R. Yadav, Mr. Aniketh
      Poojary, Mr. Sudeshkumar Naidu, Ms. Divya Yajurvedi, Mr.
      Pradeep Kumar i/by C. R. Naidu & Co. for petitioner.
      Mr. Girish S. Godbole i/by Mr. Parag Tilak & Ms. Ketki Gadkari
      for respondent no.1-MPSC.
      Mr. Milind Sathe, Senior Advocate a/w Ms. Geeta Shastri,
      Addl.Govt. Pleader for respondent no.2-State.
      Mr. Sandeep Sontakke for respondent no.3.


                    ALONG WITH APPELLATE SIDE
                 WRIT PETITION ST. NO. 5931 OF 2021

      Shri Ramkisan Shrirang Pawar               .. Petitioner
                Vs.
      Maharashtra Public Service Commission
      & Ors.                                     .. Respondents

      Mr. Sandeep Dere for petitioner.
      Mr. Girish S. Godbole i/by Ms. Ketki Gadkari for respondent
      no.1-MPSC.
      Mr. P. P. Kakade, Govt. Pleader a/w Mr. M. M. Pable, AGP for
      respondent no.2-State.


                      C0RAM: DIPANKAR DATTA, CJ &
                             G. S. KULKARNI, J.

                       DATE:     OCTOBER 26, 2021



                                  1 & 2-OSWP-1652 & ASWPST-5931-2021

PC:

1. These two writ petitions arise out of a common judgment

and order dated 25th January, 2021 rendered by the

Maharashtra Administrative Tribunal, Mumbai (hereafter "the

Tribunal" for short). The controversy before the Tribunal arose

out of challenges to the process of selection on the post of

Director, Vocational Education & Training, conducted by the

Maharashtra Public Service Commission (hereafter "the

Commission" for short).

2. The petitioner in Writ Petition No. 1652 of 2021 was the

original applicant in Original Application No. 325 of 2018, which

was dismissed by the Tribunal on the ground that the original

applicant/petitioner did not have the locus standi to approach

the Tribunal with his grievance. Insofar as the petitioner in Writ

Petition Stamp No. 5931 of 2021 is concerned, he was the

original applicant in Original Application No. 13 of 2020. The

same was partly allowed without, however, granting the prayer

of the original applicant/petitioner for conducting his interview

for want of sufficient experience on a responsible position.

3. We have heard learned counsel appearing for the

petitioners/original applicants, the Commission, the State as

1 & 2-OSWP-1652 & ASWPST-5931-2021

well as the private respondent (Digambar Ambadas Dalvi) who

has been appointed on the post of Director, Vocational

Education & Training in furtherance of the impugned selection

process.

4. Although the Tribunal has laboured to author an elaborate

judgment, we have found a serious flaw in the decision-making

process which renders the ultimate decision vulnerable. It has

not been disputed at the Bar that the findings of the Tribunal

rest on a document [page 412 of Writ Petition No. 1652 of

2021] which was tendered across the bar by the learned

counsel for the Commission. The said document, not having

formed part of the affidavit-in-reply filed by the Commission,

the Tribunal ought not to have looked at its contents. If the

Commission intended to rely on the said documentary

evidence, it was obligatory for it not only to make the relevant

pleadings in respect of such evidence in its reply/counter

affidavit but to also annex the same so that the party against

whom the said evidence were sought to be relied upon got the

opportunity to meet and dispute it. The basic rules of procedure

were, thus, observed in the breach. We hold so, relying on the

decision of the Supreme Court reported in (1988) 4 SCC 534

1 & 2-OSWP-1652 & ASWPST-5931-2021

[Bharat Singh vs. State of Haryana] where it has been

observed as follows: -

"13. *** In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter- affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. ***"

(emphasis supplied)

5. Having held that no document should have been allowed

to be tendered across the bar, we also find that the Tribunal fell

in serious error upon looking at such evidence to arrive at a

finding that the petitioner/original applicant in Original

Application No. 325 of 2018 stood at Sr. No.35 of the merit list,

and accordingly, he lacked the locus standi to challenge the

selection of the appointee. In fact, it was incorrect on the part

of the Tribunal to record that he stood at Sr. No. 35; materials

placed before us would indicate that he was placed at Sr. No.

13. Be that as it may, it is not in dispute and as shown by Mr.

1 & 2-OSWP-1652 & ASWPST-5931-2021

Naidu, learned counsel appearing for such petitioner/original

applicant, that he had laid a challenge to the procedure for

shortlisting adopted by the Commission on the ground that the

same was contrary to the Rules framed in that behalf. The

Tribunal did not advert to this aspect of the challenge. If indeed,

the petitioner/original applicant had succeeded on such plea,

the question of lack of locus standi would not have arisen at all.

6. These are the reasons for which we feel that the matter

ought to be remitted to the Tribunal for fresh consideration

upon granting full opportunity of hearing to the parties in

accordance with law.

7. Insofar as the point of locus standi of the

petitioner/original applicant in Original Application No. 325 of

2018 is concerned, we have no doubt in our mind that the

Tribunal shall duly consider the point raised by Mr. Naidu that

the process for shortlisting as ordained by the Rules of the

Commission have not been followed. At the risk of repetition,

we observe that should the said petitioner succeed on such

point, certainly he would have the locus standi to question the

process of selection adopted by the Commission.

1 & 2-OSWP-1652 & ASWPST-5931-2021

8. Mr. Godbole, learned counsel for the Commission, has

submitted that the other writ petition (Writ Petition Stamp No.

5931 of 2021) arising out of Original Application No. 13 of 2020

need not be remitted for fresh consideration since such original

application was partly allowed and thereafter the respondent

no. 3/appointee came to be appointed.

9. The grounds discussed above in paragraphs 4 and 5

(supra) go to the very root of the judgment and order of the

Tribunal and renders it unsustainable. Even otherwise, since we

propose to set aside the entire judgment and order of the

Tribunal on the prayer of Mr. Naidu, we do not see any reason

to accept this prayer of Mr. Godbole.

10. In such view of the matter, the impugned judgment and

order dated 25th January, 2021 stands set aside. We direct a

remand, with the result that Original Application No. 325 of

2018 and Original Application No. 13 of 2020 on the file of the

Tribunal would revive. The Tribunal shall proceed to consider

the original applications at an early date and decide the same

in accordance with law, without being influenced by its earlier

findings. The Tribunal shall not look into any documentary

1 & 2-OSWP-1652 & ASWPST-5931-2021

evidence that is not made part of the affidavits filed by the

parties and brought on record in a manner known to law.

However, if any, party wishes to rely on any additional evidence,

the procedure mandated by law shall be followed. Liberty is

given to the parties to apply before the Tribunal for early

hearing. All other contentions are left open for being

adjudicated by the Tribunal on merits.

11. The appointment of the respondent no.3 is, however, not

disturbed for the present; however, needless to observe, it will

be subject to and abide by the order of the Tribunal that would

be passed after hearing the original applications on remand.

12. The writ petitions stand allowed to the extent as

aforesaid. No costs.

                       (G. S. KULKARNI, J.)                      (CHIEF JUSTICE)


          Digitally
          signed by
          PRAVIN
PRAVIN    DASHARATH
DASHARATH PANDIT
PANDIT    Date:
          2021.10.28
          19:29:43
          +0530