Bombay High Court
Vishal Kashinath Mestri And 409 ... vs The State Of Maharashtra And 10 Ors on 3 February, 2023
Bench: Sandeep V. Marne
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Digitally IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
BASAVRAJ ORDINARY ORIGINAL CIVIL JURISDICTION
BASAVRAJ GURAPPA
GURAPPA PATIL
PATIL Date: WRIT PETITION NO. 592 OF 2019
2023.02.03
18:16:49
+0530
Vishal Kashinath Mestri & Ors. ..... Petitioners
Vs.
The State of Maharashtra & Ors. ..... Respondents
WITH
WRIT PETITION NO. 2948 OF 2019
WITH
INTERIM APPLICATION NO.284 OF 2019
IN
WRIT PETITION NO. 2948 OF 2019
Adhal Pandurang Soma & Ors. ..... Petitioners /
Applicants
Vs.
The Municipal Commissioner
Municipal Corporation of
Greater Mumbai & Ors. ..... Respondents
Dr. Uday P. Warunjikar for the Petitioners
Smt. Jyoti Chavan, AGP for the State
Mrs. Rupali Adhate for the Municipal Corporation
Mrs. Kshitija Kandarkar, Jt. Labour Officer, Labour Dept.
CORAM: S.V.GANGAPURWALA, ACJ &
SANDEEP V. MARNE, J.
RESERVED ON : JANUARY 31, 2023
PRONOUNCED ON : FEBRUARY 3, 2023
JUDGMENT (PER : ACTING CHIEF JUSTICE)
1. Rule.
Rule is made returnable forthwith.
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By consent of the parties, taken up for final disposal.
2. Writ Petition No.592 of 2019 has been filed seeking directions
against the Respondents to relax the conditions of Recruitment
Scheme, 2009 with regard to the legal sanction and recruit the
remaining candidates from the merit list with other reliefs.
3. Writ Petition No.2948 of 2019 is filed challenging the decision
dated 18th July 2018 of the Respondents whereby the representation
filed by the Petitioner is rejected.
4. The Petitioners in these Writ Petitions had participated in the
selection process pursuant to the advertisement dated 6 th November
2009 for the post of Labourers and Aayaas. The Petitioners' names
were included in the wait list.
5. Mr. Warunjikar, the learned Counsel for the Petitioners submit
that the advertisement was issued to fill in 3916 posts. The 3916
posts were filled-in in the year 2011. In the year 2012, 815 posts
were filled in and in the year 2013, 752 more persons from the wait
list were appointed. The Petitioners have also secured 100/100
marks. The Petitioners deserve to be given the same treatment. The
Municipal Corporation also passed the resolution that the case of the
Petitioners shall be considered and be sent to the Government. The
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Corporation was also positive to consider the case of the Petitioners.
The Petitioners have also secured full 100 marks. They cannot be
discriminated. It would be injustice upon the Petitioners if they are
not given appointment orders though they have got full 100 marks
and the posts are vacant. The learned Counsel further submits that
some of the Petitioners had filed Writ Petition (L) No.3326 of 2017,
Writ Petition (L) No.50 of 2018, Writ Petition (L) No.3418 of 2017,
Writ Petition (L) No.57 of 2018 and Writ Petition No.2967 of 2016
challenging the fresh advertisements issued, so also seeking relief of
grant of employment based on the selection of the year 2009. The
Division Bench of this Court, under order dated 18 th June 2018,
accepted the motion of the Petitioners for withdrawal of the petitions
with liberty to approach the Commissioner / Competent Authority of
the Municipal Corporation for redressal of their grievance in the
light of the resolution passed on 20th May 2013 in the joint meeting
of the Corporation. The Court directed that if such representation is
made, it may be decided expeditiously. Pursuant thereto a decision
was taken by the Commissioner rejecting the representation. The
learned Counsel for the Petitioners submits that the representation
is rejected without affording opportunity of hearing to the
Petitioners. The Respondents be directed to hear the Petitioners and
decide the representation, afresh.
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6. The learned Counsel for the Petitioners submits that the
Petitioners are discriminated. They are similarly situated and had
obtained same marks with other persons who were appointed
pursuant to the selection process of 2009.
7. The learned Counsel for the Corporation submits that after the
selection process of the year 2009, fresh selection process has been
conducted in the year 2017 and fresh appointments are also made.
The Petitioners cannot be considered for appointment pursuant to
the fresh selection process of the year 2009.
8. We have considered the submissions.
9. The Petitioners are seeking directions to appoint the
Petitioners pursuant to the selection process of the year 2009.
10. In the year 2009 advertisement was published by the
Respondent Corporation for the post of Labourer to fill in 3916
posts. The Corporation received about 2,89,248 Applications and
about 2,08,565 Applicants were found to be eligible for the physical
test. As the number of Applicants was disproportionately large vis-
a-vis the posts advertised, it was decided by the Corporation to call
15 times the number of vacant posts of respective reservation
category as per their seniority of age. 54,187 candidates were
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invited for the physical test. Out of 54,187 candidates 18,943
candidates were qualified for the final written examination. About
1,405 from handicapped category were also called for written
examination. Total 20,348 candidates were qualified for the written
examination. 18,996 candidates appeared for the written
examination. Out of 18,996 candidates, 5,148 candidates secured
100/100 marks in the written examination.
11. The vacant posts were only 3,916 and 5,148 candidates
secured 100/100 marks. Select list was prepared considering the age
of the candidates. It appears that 3,916 candidates were selected
and the rest of the candidates were on merit-cum-wait list. The
appointment orders, it appears, were issued in the year 2011. The
final merit list was announced on 26th July 2011. In the year 2012
and 2013 it appears that 752 and 815 candidates from merit-cum-
wait list were also given appointment orders in view of the fresh
vacancies. The validity period of wait list is only one year as per the
Government Circular dated 28th July 1994 and Municipal
Corporation of Greater Mumbai circular dated 20th June 2001.
12. It appears that in the year 2016 fresh recruitment was
conducted for handicapped labour and in the subsequent year fresh
recruitment was conducted for the regular labours.
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13. Only because some of the candidates were appointed in the
year 2012 and 2013, that would not mean that the Petitioners should
be appointed after a long slumber, more particularly, when fresh
selection process was also undertaken in the year 2016 and 2017.
14. It is trite that mere name in the wait list would not give
indefeasible right to the candidate to be appointed. Moreover, it
would not be possible to accept the contention of the Petitioners of
giving appointment order on the basis of the select list pursuant to
the advertisement of the year 2009. The total posts advertised are
filled in. It would not be possible for this Court to give directions to
the Corporation to fill in the posts more than advertised on the basis
of the select list of that year. Only because some candidates'
appointments were issued in the year 2012 and 2013, it will not be
possible to direct the Corporation to appoint those persons, after the
long slumber of 12 to 14 years and that too after the fresh selection
process has been conducted and appointments pursuant to the fresh
selection process have been made.
15. The Petitioners had made representation. Same has been
negated. There would be no question of affording opportunity of
hearing to these Petitioners by the Corporation. The Petitioners, as
observed above, do not have vested right to get appointment orders
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with the Corporation pursuant to the selection process of the year
2009 .
16. In light of the aforesaid facts and circumstances, this Court
cannot come to the aid of the Petitioners.
17. The Writ Petitions, as such, are disposed of. No costs.
18. Rule stands discharged.
19. Interim Application stands disposed of.
(SANDEEP V. MARNE, J) (ACTING CHIEF JUSTICE)
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