Bombay High Court
Aarti Ramesh Devargavkar vs The State Of Maharashtra Through ... on 23 December, 2022
Bench: Santosh Govindrao Chapalgaon...
WP 12843-2019 (J).doc
Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12843 OF 2019
Aarti Ramesh Devargavkar .Petitioner
Age : 47 yrs., Occ : Nil
R/o. Rajgurunagar,
Taluka Khed, Dist. Pune.
Vs.
1. The State of Maharashtra .Respondents
Through the Secretary,
Department of Town
Planning and Urban Development,
Mantralaya, Mumbai - 400 032.
2. Municipal Commissioner,
Pune Municipal Corporation
PMC Building, Pune.
3. Deputy Commissioner
Pune Municipal Corporation,
PMC Building, Pune.
4. Executive Offcer (Est.)
Pune Municipal Corporation,
Pune - 411 006.
WITH
INTERIM APPLICATION NO. 19968 OF 2022
IN
WRIT PETITION NO. 12843 OF 2019
Aarti Ramesh Devargavkar .Applicant
Age : 47 yrs., Occ : Nil
R/o. Rajgurunagar,
Taluka Khed, Dist. Pune.
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IN THE MATTER OF
Aarti Ramesh Devargavkar .Petitioner
Age : 47 yrs., Occ : Nil
R/o. Rajgurunagar,
Taluka Khed, Dist. Pune.
Vs.
1. The State of Maharashtra .Respondents
Through the Secretary,
Department of Town
Planning and Urban Development,
Mantralaya, Mumbai - 400 032.
2. Municipal Commissioner,
Pune Municipal Corporation
PMC Building, Pune.
3. Deputy Commissioner
Pune Municipal Corporation,
PMC Building, Pune.
4. Executive Offcer (Est.)
Pune Municipal Corporation,
Pune - 411 006.
Mr. N. V. Bandiwadekar i/b. Ms Ashwini N. Bandiwadekar,
Advocate, for the Petitioner / Applicant
Mrs. R. A. Salunkhe, AGP, for Respondent No. 1 - State
Mr. Abhijit Kulkarni, Advocate, for Respondent Nos. 2 to 4 - PMC
CORAM : S. V. GANGAPURWALA, ACJ. AND
S. G. CHAPALGAONKAR, J.
RESERVED ON : 21 DECEMBER 2022
PRONOUNCED ON : 23 DECEMBER 2022
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JUDGMENT ( PER : S. G. CHAPALGAONKAR, J. )
. Rule. Rule is made returnable forthwith by consent of
the parties and is taken up for fnal disposal.
2. The Petitioner has approached this Court under
Article 226 of the Constitution of India seeking directions against
the Respondents to issue appointment order on the post of
Junior Engineer (Civil) on the establishment of the Municipal
Corporation, Pune. The Petitioner has also challenged the
communication / order dated 17.07.2019, by which claim of the
Petitioner for appointment on the aforesaid post has been denied
giving the reason that the waiting list in which name of the
Petitioner fgured has been rendered inoperative due to laps of
one year from date of publication.
3. It is the case of Petitioner that the Respondent No. 2 -
Pune Municipal Corporation had published an advertisement
dated 08.08.2016 inviting applications to fll up 191 posts of
Junior Engineer (Civil). As per the said advertisement, 10 posts
were earmarked / reserved for Female - OBC. The Petitioner
submitted her candidature against said reserved category.
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4. The Petitioner had undergone the written
examination. On declaration of results, Petitioner found her
name enlisted at Sr. No. 2 in the waiting list of her category. On or
about 20.05.2017, the Respondent No. 2 - Pune Municipal
Corporation issued appointment orders to the selected
candidates. The candidate at Sr. No. 8 from select list, namely
Priyanka Mukesh Patil chose not to join. On 29.12.2017, the
Respondent No. 2 issued a letter for submission of documents to
the 1st waiting list candidate namely Neha Ashok Shriwas.
However, she did not respond to the letter. Since, the name of the
Petitioner fgures at Sr. No. 2 in the waiting list, she was next in
queue expecting for consideration.
5. On 15.01.2019, the Respondent No. 2 issued a
communication to the Petitioner asking her to submit the
documents for verifcation. However, vide impugned order Dated
17.07.2019 Respondent No. 2 declined claim of Petitioner on the
ground that the waiting list has been ceased to operate w.e.f.
04.01.2018.
6. Learned counsel for the Petitioner submitted that the
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name of the Petitioner was enlisted at Sr. No. 2 in the waiting list.
Once the candidate at Sr. No. 1 in the waiting list did not join, it
was incumbent upon the Respondents to immediately, issue
appointment order to Petitioner. Rejection of the claim of the
Petitioner, particularly after asking her to submit the documents
for verifcation is unjustifed.
7. Learned Advocate for Respondents would submit that
advertisement was published on 08.08.2016. The appointment
orders were issued to the selected candidates between
05.01.2017 and 28.12.2017. The waiting list of the candidates was
prepared on 05.01.2017, wherein the name of the Petitioner was
fgured. The Petitioner was called upon to submit the original
documents, since some of the posts remained unflled. After
scrutiny of the documents submitted by the Petitioner, it was
noticed that life of the waiting list has been expired on
04.01.2018, therefore, claim of the Petitioner for appointment
was not considered. Learned counsel for the Respondent No. 2
relies upon a Government Resolution dated 19.10.2007 in
support of his contention that the waiting list rendered invalid
after one year of the date of publication.
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8. Learned counsel for the Petitioner relying upon the
Judgment of the Hon'ble Apex Court in the case of State of J. and
K. and Ors. v. Sat Pal, reported in AIR 2013 SC 1258 as well as
Judgment of Division Bench of this Court in the case of Umesh
s/o Mohan Kumawat vs. State of Maharashtra and others,
reported in 2016(6) Mh. L. J. submitted that a waiting list would
commence to operate, when offers of appointment have been
issued to those emerging on the top of the merit list. The
existence of a waiting list, allows room to the appointing
authority to fll up vacancies which arise during the subsistence
of the waiting list. A waiting list commences to operate, after the
vacancies for which the recruitment process has been conducted
have been flled up. He further submitted that claim made by the
Petitioner could not have been negated on the ground that life of
the waiting list is expired, since the vacancy subsist due to the
non joining of the selected or 1st waiting list candidate. Learned
counsel for the Petitioner further points out that the
Respondents have issued appointment orders in favour of the
selected candidates till 20.05.2017. He has further pointed out
that the 1st waiting list candidate was given offer for appointment
on 29.12.2017 who did not join. As such, the waiting list was in
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operation even after 29.12.2017. The Petitioner ought to have
been called upon immediately, however, the Petitioner was given
a call letter dated 15.01.2019 asking her to submit the documents
for verifcation. Learned counsel for the Respondents - Pune
Municipal Corporation did not dispute the aforesaid aspects of
the matter.
9. The learned counsel for the Petitioner invited our
attention to paragraph 11 of the Judgment of the Hon'ble
Apex Court in the case of State of J. and K. and Ors. v. Sat
Pal which reads as under :-
"11. ..........A waiting list would start to
operate only after the posts for which
the recruitment is conducted, have been
completed. A waiting list would
commence to operate, when offers of
appointment have been issued to those
emerging on the top of the merit list.
The existence of a waiting list, allows
room to the appointing authority to fll
up vacancies which arise during the
subsistence of the waiting list. A waiting
list commences to operate, after the
vacancies for which the recruitment
process has been conducted have been
flled up. In the instant controversy the
aforesaid situation for operating the
waiting list had not arisen, because one
of the posts of Junior Engineer (Civil)
Grade-II for which the recruitment
process was conducted was actually
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never flled up. ............"
10. Applying the aforesaid ratio to the facts of the
present case, it can be observed that the waiting list was
continued to operate even after expiry of one year from the
date of publication. The Respondents have issued the
appointment orders to the selected candidates till
29.12.2017. However, some posts remained vacant, since the
select list candidates did not respond. It is also observed
that the appointment orders are issued to wait list
candidates till 11.04.2018. However, the claim of the
Petitioner was not taken into account though the vacancies
were subsisting. Lastly, claim of the Petitioner was
considered and she was called upon to submit the
documents vide communication dated 15.01.2019. However,
instead of issuing the appointment order to the Petitioner,
the impugned communication came to be issued stating that
the waiting list expired on 04.01.2018 on lapse of one year of
the publication. The approach of the Respondents is
unreasonable. Considering the ratio laid down in the case of
State of J. and K. and Ors. (Supra), the action of the
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Respondents declining consideration of claim of the
Petitioner for the aforesaid reasons cannot be justifed. In
fact, it was incumbent upon the Respondents to consider the
Petitioner for appointment particularly, when she was called
upon to submit the documents for verifcation under
communication dated 15.01.2019. It is not in dispute that,
when the Petitioner was called upon to submit the
documents, the posts advertised were vacant and the
Respondents had no valid reason for non-consideration of
claim of the Petitioner for appointment. In that view of the
matter, Writ Petition deserves to be allowed. The impugned
communication/order dated 17.07.2019 (Exh.'G') is liable to
be quashed & set aside.
11. In that view of the matter, the following order is
passed.
ORDER
(i) The Writ Petition is allowed;
(ii) The impugned communication dated 17.07.2019
(Exh. 'G') is quashed & set aside;
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(iii) The Respondents are directed to consider claim of the
Petitioner for appointment on the post of Junior Engineer (Civil)
after verifcation of the documents, if she is otherwise eligible;
(iv) Such exercise shall be carried out within a period of
two months from the date of receipt of this order.
12. Rule is made absolute accordingly. The Writ Petition
is disposed of.
13. In view of disposal of the Writ Petition, the Interim
Application does not survive and same stands disposed of
accordingly.
( S. G. CHAPALGAONKAR, J. ) ( ACTING CHIEF JUSTICE )
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