Sharad S/O Ramchandra Rathod vs Maharashtra State Power ...
2023 Latest Caselaw 5365 Bom

WP 5179-2021                                   1                        Judgment

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      NAGPUR BENCH, NAGPUR.
                     WRIT PETITION NO. 5179 OF 2021
Sharad s/o Ramchandra Rathod,
aged about 33 years, Occ. Service as a
Program Manager, Collector Office, Yavatmal,
R/o 7, Satyanarayan Layout, Arni Road,
Wadgaon, Taluka and District - Yavatmal.
                                                                    PETITIONER
                                .....VERSUS.....
1.    The Maharashtra State Power Generation Company Limited,
      Through its Chairman and Managing Director,
      Address : Prakash Gadh, Anant Kanhekar Road,
      Bandra East, Mumbai - 400051.

2.    The Executive Director (HR),
      MAHAGENCO (Maharashtra State Power Generation Company Limited),
      Address : Prakash Gadh, Anant Kanhekar Road,
      Bandra East, Mumbai - 400051.
                                                        RESPONDENTS

     Shri A.S. Reddy with Shri V.S. Wankhade, Advocate for the petitioner.
                Shri N.G. Moharir, Advocate for the respondents.


CORAM : A.S. CHANDURKAR AND M.W. CHANDWANI, JJ.
ARGUMENTS WERE HEARD ON : 27th APRIL, 2023
JUDGMENT IS PRONOUNCED ON : 9th JUNE, 2023
JUDGMENT (PER : A.S. CHANDURKAR, J.)

Rule. Rule made returnable forthwith and heard the learned

Counsel for the parties.

2. The petitioner who belongs to Vimukta Jati - A seeks a

direction to be issued to the respondents to issue him an order of

appointment on the post of Assistant Welfare Officer at the Maharashtra

State Power Generation Company Limited that is reserved for VJ-A

candidates. On 16/1/2017, an advertisement came to be issued by the

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Company inviting applications for various posts which included five posts

of Assistant Welfare Officer of which one post was reserved for the

candidates from VJ-A. Pursuant to the said advertisement, the petitioner

applied for the same on 6/2/2017. He appeared for the written

examination and passed the same. He secured 46 marks out of 90 in the

said examination. The petitioner was accordingly called for personal

interview on 2/6/2017. The petitioner appeared at the said personal

interview. Thereafter, on 27/7/2017, a provisional list of candidates came

to be published calling upon the candidates to submit relevant documents

for verification. The date and time for submission of such documents was

communicated and it was stated that failure to submit the said documents

at the relevant date and time would result in the candidate not being

considered. The name of one Jyoti Ramdas Doundkar was shown select

list while the petitioner's name was shown at Sr. No. 1 in the wait list. It

appears that the said candidate who was placed in the select list remained

absent as a result of which her documents could not be verified. On

getting knowledge of the same, the petitioner moved a representation on

3/8/2017 stating therein that he be considered for appointment since the

candidate in the select list had remained absent during verification of

documents. Thereafter, on 22/9/2017, a final select list of candidates

appointed on the post of Assistant Welfare Officer came to be published.

The name of the petitioner, however, did not figure in the select list

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though his name was shown in the list of eligible candidates. The

petitioner therefore submitted representations to the Executive Director

(Human Resources) as well as the Managing Director stating therein that

he be issued an appointment order. According to the petitioner, these

representations remained pending and the same were not considered.

Thereafter, the petitioner submitted various other representations to other

authorities and though he was assured that appropriate action would be

taken, nothing further happened in the matter. It is in this backdrop that

the present Writ Petition came to be filed seeking redressal of the

petitioner's grievance of his non-appointment on the post of Assistant

Welfare Officer.

3. Shri A.S. Reddy, learned Counsel for the petitioner submitted

that the petitioner has been deprived of appointment on the post of

Assistant Welfare Officer for no justifiable reason. He submitted that the

petitioner was placed at Sr. No. 1 in the wait list. On the selected

candidate having failed to submit relevant documents for verification, she

was held to be not eligible to participate further in the recruitment

process. Consequentially, the petitioner ought to have been shifted from

the wait list to the select list especially when his documents had been

verified and there was no impediment in issuing him the appointment

order. Despite immediately making representations on 30/11/2017, the

Company through its Officers did not consider the same. The Company

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had thus sought to deprive the petitioner of his appointment. According

to him, failure to consider the representations could not result in

depriving the petitioner of such appointment. In that regard, the learned

Counsel placed reliance on the decision in Malaya Nanda Sethy Vs. State

of Orissa and Others [2022 SCC OnLine SC 684] as well as the judgment

of the Division Bench at the Principal Seat in Deepak Pandurang More Vs.

The State of Maharashtra & Ors. [Writ Petition No. 1137/2021 decided

on 29/3/2023]. It was further submitted that though the petitioner would

not have an absolute right of appointment, he was entitled to fair

consideration of his case for appointment. Being placed at Sr. No. 1 in the

wait list and the selected candidate having remained absent, there was no

legal basis for denying the petitioner such appointment. The action of the

Company was arbitrary since no reason was indicated for not appointing

the petitioner. In that regard, reliance was placed on the decisions in i)

Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47]; ii) R.S. Mittal

Vs. Union of India [1995 Supp (2) SCC 230]; and iii) N.T. Devin Katti

And Others Vs. Karnataka Public Service Commission And Others [(1990)

3 SCC 157]. It was then submitted that though the stand taken by the

Company was that the life of the wait list was for a period of one year,

there were various instances on record to indicate that on the basis of the

same advertisement, the Company had made various appointments even

after expiry of period of one year of the said wait list. In that context, a

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reference was made to the appointment order issued to one Tushar Velis

on the post of Deputy Manager (Security) on 9/7/2019 and one Prakash

Kantela on the post of Deputy Senior Manager (Security) vide order of

appointment dated 23/10/2019. The stand taken by the Company that no

candidate whose name was appearing in the wait list had been issued

appointment order was incorrect and false for the reason that by

communication dated 3/7/2018, the testing agency (ATTEST) which

conducted the recruitment process had issued a communication stating

therein that a candidate namely Satish Birkhede was moved from the

select list to the wait list. The said candidate was thereafter issued an

appointment order on 10/9/2018. During pendency of the Writ Petition,

another appointment order was issued making appointment on the post

of Junior Security Officer from the same advertisement which fact was

not denied by the Company. In these facts, it was submitted that the

petitioner ought to be issued an appointment order especially when one

post of Assistant Welfare Officer had been kept vacant pursuant to the

statement made on behalf of the Company as recorded by the order dated

19/8/2022. It was thus submitted that the relief as sought be granted.

4. Shri N.G. Moharir, learned Counsel for the respondents -

Company opposed the aforesaid contentions and submitted that the

petitioner had no right whatsoever to seek appointment on the post of

Assistant Welfare Officer merely on the ground that his name was shown

WP 5179-2021 6 Judgment

in the wait list. He submitted that as per the Classification and

Recruitment Regulations, 1961 (for short "Regulations of 1961"), the

select list dated 22/9/2017 was valid only till 22/9/2018 as per

Regulation 29(a) thereof. He further submitted that the petitioner had

approached this Court after a considerable period of the wait list having

ceased to operate after a period of one year. A reference was made to the

order passed in Shivkumar Bakaram Khobragade Vs. State of

Maharashtra and anr. [Writ Petition No. 677/2019 decided on

9/10/2019] in that regard. It was thus submitted that there was no case

made out to grant any relief whatsoever to the petitioner and the Writ

Petition was liable to be dismissed.

5. In rejoinder, the learned Counsel for the petitioner referred to

the judgments of this Court in Deepak s/o Marotirao Narwad Vs. The

Maharashtra State Power Generation Company Limited, Through its

Chairman and Managing Director and another [Writ Petition No.

6779/2019 decided on 15/2/2021] that arose from the same

advertisement wherein after considering the stand of the Company that

the select list had a life of one year, it was held that in absence of any

plausible reason for not filling-in the post in question, a legitimate claim

of a candidate cannot be defeated. Similarly, reliance was placed on the

decision in Dnyaneshwar s/o Abhimanyu Wakade and others Vs. The

State of Maharashtra and others [Writ Petition No. 6368/2019 decided

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on 30/4/2020] wherein Regulation 29(a) was considered and it was held

that a candidate otherwise eligible is entitled to be fairly treated during

the selection process.

6. We have heard the learned Counsel for the parties at length

and with their assistance, we have perused the documents on record.

Before proceeding to consider the entitlement of the petitioner to the

reliefs sought in the Writ Petition, it would be necessary to first refer to

the various principles laid down by the Hon'ble Supreme Court as regards

the right of a candidate to seek appointment on the basis of his name

figuring in the select list. In East Coast Railway And Another Vs. Mahadev

Appa Rao And Others [(2010) 7 SCC 678], it has been observed in

paragraph 14 as under :

"14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter."

In N.T. Devin Katti And Others (supra), the Hon'ble Supreme

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Court in paragraph 11 has indicated the nature of right of a candidate

seeking selection on being otherwise qualified. In paragraph 11, it has

been held as under :

"11. XXXX Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."

In the same context, it has been held in R.S. Mittal (supra) in

paragraph 10 as under :

"10. XXXX It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims.

When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates

WP 5179-2021 9 Judgment

expeditiously and in accordance with law. XXXX"

In a recent decision in The State of Karnataka & Ors. Vs. Smt.

Bharathi S. [Civil Appeal No. 3062/2023 decided on 19/5/2023] it has

been reiterated by the Hon'ble Supreme Court that the duty to fill up

vacancies from the waiting list can arise only on the basis of a mandatory

rule. In the absence of such mandate, the decision to fill all vacancies is

left to the wisdom of the State. However, the State cannot act arbitrarily

and its action will be subject to judicial review.

As regards the period of validity of a select list, it has been

held in Sheo Shyam And Others Vs. State of U.P. And Others [(2005) 10

SCC 314] in paragraph 10 as under :

"10. In the aforesaid background, in a case of this nature and in view of the peculiar nature of the fact situation noted above, it would be inequitable and unjust to compute the one-year period from the date when the first recommendation was made by the Commission. Undisputedly, appointments were made till the end of 2001. Therefore, it would be proper to reckon the period from the last date when the recommendation was made. XXXX"

7. In the light of the aforesaid legal position, it would be first

necessary to refer to certain undisputed facts that are available on record.

The advertisement in question is dated 16/1/2017 and the petitioner

claims entitlement to the post of Assistant Welfare Officer reserved for

candidates from VJ-A category. Pursuant to completion of the written

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examination and thereafter the interview, the Company published a

provisional list of candidates calling upon them to appear for verification

of their documents. For the post in question, Ms. Jyoti Ramdas Doundkar

was shown in the select list at Sr. No. 1 while the petitioner's name was

shown at Sr. No. 1 in the wait list. It is an admitted position that the

candidate shown at Sr. No. 1 in the select list remained absent as a result

of which her candidature came to an end in terms of the notice published

by the Company on 27/7/2017. The petitioner made representations on

30/11/2017 receipt of which has not been denied by the Company. The

assertion of the petitioner that the said representations were not decided

has also not been denied by the Company. According to the Company, the

life of the select list was for a period of one year in terms of Regulation

29(a) of the Regulations of 1961. It is further not in dispute that after

lapse of one year, the Company proceeded to issue letters of

appointments to one Tushar Bharat Velis for the post of Deputy Manager

(Security), Satish Sevakram Birkhede for the post of Deputy Manager

(Security) as well as Rajkumar Bajirao Dhenge on the post of Watchman

by order dated 4/5/2022. These appointments have been made pursuant

to the Advertisement No.1 (January)/2017 under which the petitioner

claims entitlement.

8. At this stage, it would be necessary to refer to two decisions

of this Court arising from the same advertisement. In Dnyaneshwar s/o

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Abhimanyu Wakade and others (supra), the petitioners were selected for

the post of Surveyor - Grade-2. Despite vacancies on the said posts, the

petitioners were not being issued appointment orders though their names

figured in the select list. That action was challenged in the aforesaid Writ

Petition. A specific stand was taken by the Company that the validity of

the select list/ wait list was for a period of one year which was

17/9/2018. It was found that during the course of verification, some

selected candidates did not possess necessary work experience as a result

of which their candidature came to be cancelled. The documents of the

petitioners were verified. In the said backdrop, it was held that under

Regulation 29(a) of the Regulations of 1961, the validity of the wait list

of the selected candidates, even if partly operated, could be extended for

one further year. Despite this position, the Company merely stated that

the validity of the select list/ wait list was for only one year. After

recognizing the legal position that a candidate did not have any vested

right of selection but had a right of being considered in accordance with

the Rules, it was found that there was no justifiable reason with the

Company to decline appointments to the petitioners. Mere refusal on the

part of the Company in issuing appointment orders was found to be bad

in law. The Company was thus directed to consider the candidature of the

petitioners if they were otherwise found eligible for the posts in question.

Similarly, in Deepak s/o Marotirao Narwad (supra), the

WP 5179-2021 12 Judgment

petitioner had applied for the post of Deputy Manager (Security)

pursuant to the very same advertisement. Despite the petitioner being the

only eligible candidate, he had not been issued the appointment order. A

similar defence as regards life of the select list was taken and the Division

Bench considered the fact that the Company had issued appointment

orders even after expiry of period of one year of operation of the select

list. Relying upon the earlier decision in Dnyaneshwar s/o Abhimanyu

Wakade and others (supra), it was held that the Company could not

come-up with any plausible reason for not filling-in the post. It was held

that justification for not filling-in the post ought to be reasonable and not

arbitrary. In absence of any such material on record, it was held that the

petitioner was entitled to be issued the order of appointment for the post

in question.

9. It can thus be seen from the aforesaid two decisions of this

Court which arise out of the very same advertisement under which the

present petitioner is seeking appointment that a similar defence as

regards expiry of validity of select list/ wait list was raised by the

Company and it was found that there was no material on record to justify

non-issuance of appointment order to the candidates found eligible in the

selection process.

10. Coming to the facts of the present case, we find that though

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the Company has filed its affidavit-in-reply, the same is totally silent with

regard to the reason for not issuing an appointment order to the

petitioner. Undisputedly, the petitioner was placed at Sr. No. 1 in the wait

list and on the selected candidate not participating further in the

recruitment process by remaining absent for verification of documents, it

becomes clear that the candidature of the petitioner was liable to be

considered since he was placed at Sr. No. 1 in the wait list. There is no

material whatsoever placed on record by the Company to at least indicate

or justify the reason for not proceeding to operate the wait list when the

selected candidate did not seek appointment. We also find that the

specific stand taken by the petitioner of other appointments being made

after expiry of the select list/ wait list by the Company has not been

specifically denied. These averments can be found in paragraphs 28 to 30

of the Writ Petition. Except for the statement that no candidate whose

name was appearing in the wait list was given appointment order, the

specific assertion in that regard has not been denied.

11. In the affidavit-in-rejoinder filed by the petitioner, the

relevant documents with regard to the candidate, Tushar Bharat Velis

have been referred to and it has been specifically stated that the said

candidate was issued the order of appointment after lapse of more than

two years. It is thus clear from the record that there is absence of any

justification for not issuing any appointment order to the petitioner and

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further the Company itself has issued three appointment orders to the

concerned candidates even after expiry of one year of the select list/ wait

list. The fact that the life of the waiting list can be extended beyond the

period of one year is stipulated in Regulation 29(a) itself.

12. Yet another relevant aspect that cannot be ignored is that the

petitioner immediately on 30/11/2017 made representations to the

Executive Director (Human Resources) as well as the Managing Director

bringing it to their notice that the petitioner was being deprived of

appointment despite having been placed in the eligible list of candidates.

Non-consideration of those representations is thus material in the facts of

the present case. There does not appear to be any justification whatsoever

for not considering the petitioner's representations. It is also to be noted

that on 8/1/2018, the Chief General Manager (Human Resources) issued

a communication to the Deputy Collector, Employment Guarantee

Scheme, Yavatmal to verify the issuance of caste certificate dated

27/9/2016 to the petitioner. The Deputy Collector, Employment

Guarantee Scheme by its communication dated 15/1/2018 informed the

Chief General Manager (Human Resources) that the said office had in fact

issued the said caste certificate to the petitioner. It is also to be noted that

the Executive Director of the Company informed the Officer on Special

Duty, Ministry of Energy and Tourism that the candidature of the

petitioner would be duly considered in accordance with the Rules of the

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Company. The aforesaid thus indicates that right from making

representations from 30/11/2017 and thereafter following-up the matter,

the petitioner has been pursuing the Company in seeking issuance of the

appointment order. Having failed to decide the petitioner's

representations and not having responded in the matter, it would not be

now open for the Company to urge that the petitioner had belatedly

approached this Court by filing the present Writ Petition. The Company

itself having not acted with diligence thereby requiring the petitioner to

approach various authorities in the matter, it would not be justifiable to

uphold the stand taken by the Company in this regard. Accepting the

same would result in paying premium to the Company for its total

inaction. In any event, we find that there is absence of any reason

whatsoever for not operating the wait list insofar as the petitioner is

concerned while it was operated for other candidates. We may note that

in a recent decision in Malaya Nanda Sethy (supra), it has been held by

the Hon'ble Supreme Court that if there is no fault or delay on part of a

candidate and all throughout there has been a delay and inaction on part

of the authority in question, the candidate cannot be blamed and by not

appointing the candidate, the inaction on part of the authority cannot be

condoned.

13. Hence for the aforesaid reasons, we are satisfied that the

petitioner has been unnecessarily deprived of appointment on the post of

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Assistant Welfare Officer for no fault on his part. One post in that regard

has been kept vacant by the Company pursuant to the statement made on

its behalf in the present proceedings on 19/8/2022. Since such post for a

candidate from VJ-A category has been kept vacant, the petitioner would

be entitled to appropriate relief. It is accordingly directed that the

candidature of the petitioner shall be considered for appointment on the

post of Assistant Welfare Officer in VJ-A category if he is otherwise found

eligible. The right of the petitioner shall not be denied by relying upon

Regulation 29(a) of the Regulations of 1961 in the facts of the present

case. Though the petitioner has also prayed for grant of all consequential

benefits, we find that such relief cannot be granted in the facts of the

present case.

14. Rule is made absolute in the aforesaid terms with no order as

to costs.

             (M.W. CHANDWANI, J.)           (A.S. CHANDURKAR, J.)


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