Ganesh Sitaram Bahirwal vs The State Of Maharashtra And ...
2022 Latest Caselaw 3788 Bom

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                                       (1)
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO.12890 OF 2018

 Ganesh s/o Sitaram Bahirwal,
 Age : 30 years, Occu. Labour,
 R/o Pimpalwadi,
 Tq. & Dist. Beed                               ..PETITIONER

          VERSUS

 1.       The State of Maharashtra,
          Through its Secretary,
          Transport Department,
          Mantralaya, Mumbai - 32

 2.       Managing Director,
          Maharashtra State Road
          Transport Corporation (MSRTC),
          Central Office, Mumbai-08

 3.       Divisional Controller,
          Maharashtra State Road
          Transport Corporation (MSRTC),
          Beed                                  ..RESPONDENTS

 Mr. A.N. Nagargoje, Advocate for petitioner;
 Mr. S.K. Tambe, A.G.P. for respondent no.1;
 Mr. A.B. Dhongade, Advocate for respondents no.2 & 3


                                  CORAM : R.D. DHANUKA
                                                AND
                                          S. G. MEHARE, J.J.

                     [Date of reserving the judgment : 29.3.2022
                     Date of pronouncing the judgment : _____.4.2022]


 JUDGMENT (Per S.G. Mehare, J.)

1. Rule. Learned A.G.P. waives service for respondent no.1.

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Learned Counsel Mr. Dhongade waives service for respondents no.2

and 3.

2. Rule is made returnable forthwith. By consent of the parties

heard finally.

3. Petitioner has prayed for a Writ of Certiorari to quash and set

aside the communication dated 27.2.2018 issued by respondent no.2

and a Writ of Mandamus to appoint him to the post of Assistant

(Junior) either from the general or O.B.C. category, within a

stipulated period.

4. In response to the advertisement dated 7.1.2017 issued by

respondent no.2 Corporation, the petitioner had applied for the post

of Assistant ( Junior) from the O.B.C/ Project Affected Person (P.A.P.)

category for the Beed Division. Petitioner cracked the written

examination and was declared at third position in the merit list of the

open category. Petitioner has secured the highest numbers in the

O.B.C. category. The petitioner had applied for both, the O.B.C./P.A.P.

category.

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5. Respondent no.3, by its communication dated 27.2.2018,

turned down the petitioner's claim as the petitioner did not submit

the P.A.P. certificate within time. Hence, this petition.

6. Respondent no.3, in his affidavit-in-reply dated 25.6.2019,

contended that the petitioner had applied from O.B.C. and P.A.P.

category. Since the petitioner was in merit, he has been selected from

the Open P.A.P. category candidate in the final list. At the time of

verification of the documents on 31.11.2017, instead of his P.A.P, he

produced the P.A.P. certificate of his brother Satish Sitaram Bahirwal.

Thereafter, on 20.6.2018, the petitioner submitted the certificate of

P.A.P. in his name, but till that Date, the drive for direct recruitment

was over. Therefore, the respondent could not consider the

petitioner's claim at such a belated stage. The Committee disqualified

the petitioner for failing to submit the P.A.P. certificate in the given

time. In view of the representation made by the petitioner to the

Central Office of the Corporation, issued the impugned

communication. It is further submitted that since the petitioner has

applied from the O.B.C./P.A.P. category, the respondent could not

consider in the open category.

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7. During the hearing on 15.3.2022, it was found that the

advertisement for 64 posts in all for Beed Division was published. The

learned Counsel for the petitioner pointed out that the petitioner was

at Sr. No.3 in the merit list declared by the respondents. He also

pointed out various final results of the various categories and also

raised a question that no separate list of P.A.P. categories was

published. On this fact, the learned Counsel for respondents nos.2

and 3 sought time to produce the separate list of P.A.P. categories and

to make a statement whether any of the candidates out of three posts

reserved were appointed from the P.A.P. category. In pursuance of the

said order dated 15.3.2022, respondent no.3 filed an additional

affidavit in reply on 20.3.2022.

8. It is submitted that respondents had hired the outsourcing

services of M/s. U.S. Technology Pvt. Ltd. for recruitment. The said

agency conducted the recruitment process and presented the result to

the Corporation, and the Corporation has taken steps accordingly. He

reiterated that the petitioner did not submit his P.A.P. certificate in

time. The outsourcing agency provided the data in software as well as

in hard copies. The numbers/marks secured by the candidates were

published on the official website of the Corporation, and objections

were invited. However, respondent no.3 has candidly conceded that

no separate list of P.A.P. category candidates was prepared or

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published. Instead, a common final merit list of selected candidates

was prepared for the categories, viz. Open, SC, S.T., and O.B.C. The

list which was published did not mention the parallel reservations,

namely, Women, Ex-servicemen, Part-Time, Project Affected,

Earthquake Affected, Sportsman, etc. The said parallel reservations

were taken into consideration, and the final list was published.

9. In the said docket sheet provided by the outsourcing agency, the

merit list included parallel reservations. It is placed on record at

Exhibit P-1. From the open category final selection list, 35 candidates

were appointed as per the merit and its parallel reservation, out of

which the candidates as shown below were appointed from the open

P.A.P. category:-

  Sr. No. Name of the Candidate                  Category               Marks
  in List                                        Open-Project           obtained
                                                 Affected

10. From the Open/P.A.P category, the candidate at Sr. No.27 -

Nilesh Firange, has not joined the service. As per the merit list from

the open category, four candidates were selected, and one from the

O.B.C. category was selected. In a nutshell, respondent no.3 again has

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contended that the petitioner was at fault for not producing the P.A.P.

certificate. Hence, the petition deserves to be dismissed.

11. The learned Counsel Shri. Nagargoje, for the petitioner,

vehemently argued that the petitioner had applied as per the

advertisement. Since he was third in the merit, he was selected from

the open category instead of considering for reserved posts, though

he had applied for the reserved post. He urges that the petitioner to

be accommodated on one post still lying vacant in the said category.

He also urged that the post on which the petitioner was declared

selected in the merit list is also lying vacant. He submits that when

three posts were reserved for P.A.P. in Beed Division, as per the docket

sheet, excess posts from that category for reserved and open have

been filled. To bolster the arguments, learned Counsel for the

petitioner relied on the order passed in the case of Nilesh Narendra

Khairnar vs. The State of Maharashtra & ors., Writ Petition No.3000

of 2020 by a Co-ordinate Bench of this Court, dated 23.2.2021.

12. Per contra, learned Counsel for the respondents Mr. Dhongade

argued that since it is the utter failure of the petitioner to submit the

P.A.P. certificate in time, he is rightly declared disqualified by the

Corporation. Though the post from the same category, i.e. open

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category, is lying vacant, it would be very difficult for the Corporation

to accommodate him, as it may affect the roster in future. The

petitioner had knowledge that he had applied from the OBC/PAP

category; he ought to have been armed with the P.A.P. certificate at

the time of verification of the documents soon after the merit list was

published. At the time of verification of documents, the P.A.P.

certificate was not in his name and after the completion of the

recruitment process, he submitted the said certificate. Hence, there is

no merit in the present petition.

REASONS AND CONCLUSION

13. The advertisement was published showing vertical and

horizontal reservations. The terms and conditions of the

advertisement bind employer. The mistake appears to have been

committed by the Corporation while declaring the merit list. The

Corporation has erred in not listing the selection of the candidates as

per their category. The contention in the affidavit in reply is clear that

no separate list, as per the reservations of various classes, particularly

the P.A.P. was published. The docket (P-1) shows that the petitioner

was in the category of P.A.P., but the said list was not published any

time before. Hence the petitioner had no opportunity to raise an

objection, if any. The respondent has declared the petitioner selected

to be in merit in the open category. Now, the employer/ respondent

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Corporation cannot take a turn from its own decision. That apart, the

petitioner has subsequently submitted the P.A.P. certificate. It is not in

dispute that many other candidates having secured lesser marks than

the petitioner in other categories have been selected. A meritorious

candidate cannot be refused an appointment. Apparently, the

petitioner is not at fault since, he was in the merit in all categories.

14. The docket placed at Exh.P-1 (page no.126) reveals that when

two posts for Open/P.A.P. category were reserved, the outsourcing

agency has selected three candidates, including one Nilesh Firange,

who did not join the post as he had been selected elsewhere.

15. Learned Counsel for the petitioner is also agreeable for

appointment of the petitioner in the open category. In the Beed

Division, one post undisputedly is still lying vacant. Petitioner has

made a categorical statement that the post on which he was selected

in the merit is also vacant. In the similarly situated facts in the case of

Nilesh Khairnar cited supra, the Division Bench of this Court has

considered the candidate and directed the employer to accommodate

him. The said case comes to the petitioner's aid.

16. In the light of the aforesaid facts, the petitioner shall be

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accommodated with respondent Corporation in O.B.C. category or

Open category, as may be.

17. We have passed the aforesaid order as the post on which the

petitioner is selected and the candidate at Sr. No.5, namely, Nilesh

Firange being not joined, has remained vacant, and the petitioner was

in merit competing with all candidates from all categories. The

respondents shall issue the appointment order to the petitioner, as

directed above, within two weeks from the date of uploading of this

judgment on the official website of this Court. Writ petition is

allowed in aforesaid terms. Rule is made absolute accordingly.

18. No order as to costs. Parties to act on the authenticated copy of

this order.

  (S. G. MEHARE, J.)                        (R.D. DHANUKA, J.)

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