Pathan Riyaz Khan Shaukat Khan vs The State Of Maharashtra And ...
2022 Latest Caselaw 9655 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO.12996 OF 2019

Pathan Riyaz Khan s/o. Shaukat Khan
Age : 29 years, Occu : Unemployed,
R/o. Balepir, Opposite Sana Function Hall,
Beed, Tal. & Dist. Beed.                                       .. Petitioner
         Versus
1.       The State of Maharashtra
         through its Secretary,
         Marketing Department,
         Ministry of Co-operation,
         Marketing and Textiles,
         Mantralaya, Mumbai.
2.       Directorate of Marketing,
         3rd Floor, New Central Building,
         Ambedkar Wellesly Road,
         Pune.
3.       District Deputy Registrar,
         Co-operative Societies,
         Office - "Sahkar Shakti",
         Stadium Complex, Jalna Road,
         Beed.
4.       Mr. Ashok Waghire,
         Secretary,
         Agricultural Produce Market Committee,
         Beed Market Yard, Kurla Road, Beed.
5.       Mr. Dinkar Kadam,
         Chairman,
         Agricultural Produce Market Committee,
         Beed Market Yard, Kurla Road, Beed.
6.       Dnyaneshwar Prabhakar Nande
         Age : 30 years, Occu : Service,
         R/o. Limbrarui (Devi), Pimpalner (G.),
         Tal. & Dist. Beed
7.       Shaikh Rizwan Shaikh Gaffar
         Age : 29 years, Occu : Service,
         R/o. Behind Nagar Parishad, Bashir Ganj, Beed.



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8.       Shaikh Junaid Shaikh Javed
         Age : 36 years, Occu : Service,
         R/o. Pingle Galli, Karanja Road, Beed,
         Tal. & Dist. Beed.
9.       Rahul Raghunath Waghmare
         Age : 35 years, Occu : Service,
         R/o. Patoda (B.), Tal. & Dist. Beed.
10.      Vijay Prakash Bhavale
         Age : 28 years, Occu : Service,
         R/o. Rajuri Navgan, Tal. & Dist. Beed.
11.      Satish Rajabhau Gite
         Age : 27 years, Occu : Service,
         R/o. Kathoda, Tal. & Dist. Beed.
12.      Anant Bhaskarrao Mote
         Age : 38 years, Occ : Service,
         R/o. Pargaon, Tal. Vashi, Dist. Osmanabad.
13.      Salikram Ganesh Ghubde
         Age : 30 years, Occu : Service,
         R/o. Nagoba Galli, Beed, Tal. & Dist. Beed.
14.   Satpal Omprakash Tusambad
      Age : 38 years, Occu : Service,
      R/o. Balbhim Nagar, Beed, Tq. & Dist. Beed.     ..Respondents.
                                  ...
Mr. Sayyed Tauseef Yaseen, Advocate for the petitioner
Mr. S.B. Yawalkar, AGP for Respondent Nos.1 & 2.
Mr. Bhagwan R. Sable, Advocate for Respondent Nos.4 and 5
Mr. Satish S. Manale, Advocate for Respondent Nos.6 to 8 and 10 to
14
                                  ...
                                        CORAM :      MANGESH S. PATIL &
                                                     SANDEEP V. MARNE, JJ.

                                        DATE     :   22-09-2022

ORAL JUDGMENT (PER SANDEEP V. MARNE, J.) :

.                 Heard.       Rule.   It   is   made    returnable        forthwith.

Learned AGP Mr. S.B. Yawalkar waives service for respondent nos.1

and 2, learned advocate Mr. Bhagwan R. Sable waives service for

respondent nos.4 and 5 and learned advocate Mr. Satish S. Manale

waives service for respondent nos.6 to 8 and 10 to 14. At their joint

request the matter is heard finally at the admission stage.

2. By this petition, the petitioner has sought following

prayers:

"B. By issuing writ of mandamus and or any other appropriate writ, order and / or direction in the like manner, appointment orders dt.18/05/2018 at Exhibit-K issued by the office of A.P.M.C., Beed in pursuance to advertisement dt.07.03.2018 may kindly be quashed and set aside.

C. To hold and declare that the appointment orders dt.18/05/2018 at Exhibit-K issued by the office of A.P.M.C., Beed in pursuance to advertisement dt.07/03/2018 is an illegal and arbitrary act.

D. By issuing writ of mandamus and or any other appropriate writ, order and / or direction in the like manner, respondent nos.4 and 5 may kindly be directed to appoint the petitioner on the vacant post of clerk in their office.

E. Pending hearing and final disposal of this Writ Petition, the respondent no.4 and 5 may kindly be directed to restrain themselves from recruiting and / or filling the said vacant post of 'clerk' or any other vacant class III / IV vacant post in their office.

F. Any other relief may kindly be granted in favour of the petitioner."

3. The claim for appointment on the post of Clerk is

premised by the petitioner both towards his entitlement under

Compassionate Appointment Scheme as well as the selection process

in which he participated. We repeatedly enquired with Mr. Sayyed

Tauseef Yaseen, learned advocate appearing for the petitioner as to

on what basis the petitioner is claiming appointment with respondent

- organization. He has expressed that the claim is based both towards

compassionate appointment as well as result of the selection process.

We find this approach of the petitioner to be totally unacceptable. If

he indeed deserved compassionate appointment, he ought not to

have participated in the direct recruitment process. On the other

hand, if he is challenging the direct recruitment process as well as the

appointment orders of the successful candidates, he cannot press his

claim for compassionate appointment in the present petition.

According to us, this would have been a sufficient ground for

dismissing the writ petition in limine.

4. However, since detailed submissions were advanced

before us and by way of indulgence, we proceed to examine both the

claims of the petitioner.

5. We first examine the claim of the petitioner for

compassionate appointment. The petitioner's father was working on

the post of driver in Agricultural Produce Market Committee, Beed

(hereinafter referred to as the 'A.P.M.C.'). He died of heart attack on

01.12.2017. The petitioner made applications for grant of

compassionate appointment on 18.12.2017, 19.12.2017, 19.01.2018

and 08.03.2018. In the meantime, direct recruitment process was

initiated inter alia for the post of driver vide advertisement dated

07.03.2018. The petitioner applied in pursuance of the said

advertisement and participated in the selection process by appearing

for interview on 14.03.2018. He thereafter submitted application

dated 22.03.2018 seeking compassionate appointment on the post of

driver. In the said application, he also buttressed his claim for direct

recruitment in pursuance his participation in the selection process.

Thereafter, the petitioner continued pursuing his case for grant of

compassionate appointment on the post of driver. However, perusal

of the prayers made in the present petition would indicate that the

petitioner is claiming appointment on the post of Clerk. It appears

that he also filed Writ Petition No.6394 of 2018 which was disposed

of by order dated 31.01.2019 observing that though the petitioner

was seeking appointment on compassionate ground he had

participated in the selection process, but was not selected. It was

specifically recorded in the order that no vacant post was available in

APMC for petitioner's compassionate appointment. It is purely on

account of request made by the petitioner that this Court granted

liberty to APMC to appoint him on contract basis for seasonal work

and to further consider his case for compassionate appointment as

and when vacancy arises. APMC has filed affidavit-in-reply stating

that no post of clerk is vacant for consideration of the case of the

petitioner on compassionate ground. It is stated that only 5 vacant

posts i.e. Secretary (Open), Accountant (Open), Supervisor (ST) and

Junior Clerk (ST) exist in APMC, against none of which the petitioner

can be appointed.

6. Considering the facts and circumstances of the case and

particularly the conduct of the petitioner in participating in the direct

recruitment process, we do not find that any case is made out for

exercise our discretionary jurisdiction.

7. Now, we turn to the claim of the petitioner based on his

participation in the direct recruitment process. He participated for

appointment on the post of driver and secured only 4 marks in the

selection process. Candidate securing higher marks in the selection

process came to be appointed. The petitioner secured lowest marks

amongst 9 candidates in the selection. Therefore, we do not find any

error is committed in the selection process.

8. Despite participating in selection process for the post of

Driver, the petitioner has sought a prayer for appointment on the post

of clerk in the present petition. We deprecate this conduct of the

petitioner.

9. We, therefore, find that the petition being devoid of any

merits deserves to be dismissed and is accordingly dismissed without

any order as to the costs. Rule is discharged.

( SANDEEP V. MARNE, J. )                    ( MANGESH S. PATIL, J. )


GGP