Bombay High Court

Sou. Bharati Tukaram Patil vs Zillha Parishad (Thr. Chief Executive ... on 20 January, 2025

2025:BHC-AS:2552


                                                                        1-SA-297-2016.docx

 rrpillai                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION
                                          SECOND APPEAL NO. 297 OF 2016


                          Smt. Bharati Tukaram Patil
                          Age : 38 years, Occ : Housewife
                          R/at : Plot No. C-6/7, Surve Nagar
                          Near Prathamesh Mandir
                          Kalamba Road, Kolhapur                                               Appellant

                                                  Versus

               1.         Zillha Parishad, Through its
                          Chief Executive Officer,
                          Zillha Parishad Building
                          Nagala Park, Kolhapur

               2.         Zillha Parishad, Through its
                          Deputy Chief Executive Officer,
                          (Child Welfare)
                          Zillha Parishad Building
                          Nagala Park, Kolhapur

               3.         The State of Maharashtra
                          Through Collector
                          Collector Office
                          Nagala Park, Kolhapur



                                                           1/42


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4.      Sou. Maya Purushottam Dhekele
        Age : 32, Occ : Service
        R/o. Dindewadi, Tal. Bhudargad
        Dist . Kolhapur.                                     ... Respondents


Mr. Umesh Mankapure a/w. Mr. Sushil A. Inamdar for the Appellant.

Mr. S. R. Nargolkar for Respondent Nos. 1 and 2 (Zilla Parishad).

Mr. D. J. Haldankar, AGP for Respondent No. 3 - State.

Mr. P. D. Dalvi for Respondent No. 4

                                CORAM: GAURI GODSE, J.
                                RESERVED ON: 10th OCTOBER 2024
                                PRONOUNCED ON: 20 th JANUARY 2025
JUDGMENT:

1. This Second Appeal is preferred by the original plaintiff to

challenge the concurrent judgments and decrees dismissing her suit.

The plaintiff had prayed for a declaration that she be held eligible for

the post of 'Supervisor' pursuant to the advertisement dated 5 th March

2010 ('Advertisement') published by defendant nos. 1 and 2. The

plaintiff prayed for directing defendants nos. 1 and 2 to appoint her to

the post of 'Supervisor' pursuant to the selection process held as per

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the Advertisement. The plaintiff further prayed for a restraining order

against defendant nos. 1 and 3 from appointing defendant no. 4 to the

post of 'Supevisor'. Defendant no. 4 is the candidate selected by

defendant nos. 1 and 2 in the selection process pursuant to the

advertisement. During the pendency of the suit, defendant no. 4 was

appointed to the post of 'Supervisor (Woman)'; hence, by way of

amendment, the plaintiff challenged the order dated 21 st July 2011,

appointing defendant no. 4.

Brief Facts:

2. Defendant nos. 1 and 2 is Zilla Parishad, Kolhapur, through the

Chief Executive Officer. Defendant no. 3 is the State of Maharashtra,

and defendant no. 4 is the candidate selected and appointed by

defendant nos. 1 and 2 to the post of Supervisor in the selection

process conducted pursuant to the advertisement.

3. The second appeal was admitted on the following substantial

questions of law vide order dated 13th December 2016:

(i) Whether the application of the respondent no.4 could have

been treated as valid though there was no certificate of the

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project affected person having transferred in her name on the

date of application filed by her on or before the cut-off date?

(ii) Whether filing of the certificate of project affected person by

respondent no.4 transferred in her name after the cut-off date

would revalidate the application with retrospective effect?

4. Learned counsel for the appellant pointed out the following dates

and events relevant to deciding the controversy in the matter:

(a) 5th March 2010: The District Selection Committee and Chief

Executive Officer of the Zilla Parishad and the District

Selection Committee and District Collector, Kolhapur,

published an advertisement in the newspaper to recruit

Anganwadi Supervisor for the women category. The dispute

in the present Second Appeal is with reference to one post

reserved for the project-affected person ('PAP').

(b) 20th March 2010: The appellant submitted an application along

with a certificate in her name as PAP. The appellant also

submitted all the relevant documents as per the terms and

conditions of the advertisement.

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application, respondent no. 4 submitted her application.

(d) 2nd May 2010: The written examination was scheduled as per

the advertisement.

(e) 25th May 2010: Certificate of PAP in the name of respondent

no. 4's husband was transferred in the name of respondent

no. 4.

(f) 6th June 2010: The written examination was conducted.

(g) 8th June 2010: Interviews of the eligible candidates were

conducted.

(h) 8th June 2010: Final results were declared, respondent no. 4

was selected, and the appellant's name was kept on the

waiting list.

(i) 20th July 2010: The appellant made an application seeking

cancellation of respondent no.4's appointment and requested

to appoint the appellant on the post reserved for PAP.

(j) 2nd August 2010 and 30 th August 2010: The appellant issued a

reminder making a similar request to respondents nos. 1 to 3.

(k) 9th September 2010: Respondent no. 2 issued a reply

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justifying the appointment of respondent no.4.

(l) 25th October 2010: The appellant instituted a suit for a

declaration regarding her eligibility and for an injunction

restraining respondents nos. 1 and 2 from appointing

respondent no. 4.

(m) 6th January 2011: Respondent nos. 1 and 2 filed the written

statement and denied the suit claim.

(n) 21st July 2011: Respondent nos. 1 and 2 issued an

appointment letter to respondent no. 4, appointing her to the

post of 'Supervisor'. The appointment letter stated that the

appointment was subject to the outcome of the decision in the

suit.

(o) 14th December 2011: Respondent no. 4 filed her written

statement and denied the suit claim.

(p) 16th April 2012: The appellant amended the suit to challenge

the appointment of respondent no.4.

(q) 10th July 2012: Respondent no. 4 filed her amended written

statement.

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Submissions on behalf of the Appellant :

5. Learned counsel for the appellant relied upon condition no. 7 in

the instructions published in the advertisement. He submitted that

condition no. 7 required the applicant to submit the application along

with the certificate of PAP. However, admittedly, respondent no. 4 had

never submitted her PAP certificate along with her application.

Learned counsel for the appellant thus submitted that in view of

condition no. 7 of the instructions in the advertisement, respondent no.

4's application was invalid.

6. With reference to question no. 1, learned counsel for the

appellant submitted that once in view of the terms and conditions of

the advertisement, respondent no. 4's application was invalid; filing the

certificate on a subsequent date would not validate respondent no. 4's

application. He submits that the original PAP certificate was in the

name of respondent no. 4's father-in-law. The said certificate was

transferred in the name of respondent no. 4's husband. However, he

did not receive any benefit from the certificate. Hence, pursuant to the

application filed by respondent no. 4's father-in-law, the certificate was

transferred in the name of respondent no. 4.

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7. Learned counsel for the appellant submitted that condition no. 7

of the instructions in the advertisement clearly stated that the PAP

certificate was to be submitted by the applicants along with the

application. He submitted that the last date for filing the application

was 25th March 2010. He submitted that admittedly, on the date of

filing of the application, there was no PAP certificate in the name of

respondent no. 4. Learned counsel for the appellant thus submitted

that the application filed by respondent no. 4 was invalid for want of

PAP certificate in her name. He submitted that respondent no. 4

applied for one post reserved for PAP. Thus, filing of the certificate

along with the application was a mandatory requirement as per the

terms and conditions published in the advertisement.

8. Learned counsel for the appellant submitted that issuance of a

PAP certificate under the provisions of The Maharashtra Project

Affected Persons Rehabilitation Act, 1999 ["Rehabilitation Act"] is not

an empty formality. He submits that the certificate, though issued for

the benefit of the family of PAP, only the person named in the

certificate is entitled to seek benefit for the purpose of employment.

According to the learned counsel for the appellant, the benefit of the

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certificate can be availed by the PAP only once. Thus, any other family

member of the PAP who intends to take benefit of the certificate is

required to get the certificate transferred in the name of the family

member desirous of availing the benefit. He submits that the process

of transferring the certificate is after due inquiry by the Collector that

the benefit of the certificate is not availed. He thus submits that the

issuance of a certificate in the name of the person desirous of availing

the benefit is a crucial aspect to avoid any misuse of the PAP

certificate. He thus submits that condition no. 7 on the instructions

published in the advertisement is not an empty formality and thus is

required to be followed as stated in the instructions, i.e. the application

cannot be accepted as a valid application without a PAP certificate in

the candidate's name.

9. Learned counsel for the appellant relied upon the definition of the

"affected person" defined under sub-section (2)(a) of Section 2 of the

Rehabilitation Act. Learned counsel for the appellant referred to the

duties and functions of the project authority as contemplated under

Section 6 of the Rehabilitation Act. He submits that the explanation to

the said section provides that the expression 'Family' used in the

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Rehabilitation Act includes a daughter-in-law of the affected person.

Hence, respondent no. 4, who is the daughter-in-law of the PAP,

though entitled to seek the benefit of PAP, it was necessary for the

project authorities to make the necessary inquiry and issue a

certificate in the name of respondent no. 4 after verification that the

benefit under the PAP certificate is not availed by the original PAP or

any of his family members as permitted under the Act.

10. Learned counsel for the appellant thus submitted that question

no. 1 be answered in favour of the appellant by holding that for want of

a PAP certificate in the name of respondent no. 4, her application

could not have been accepted as a valid application. Thus, if

respondent no. 4's application itself was invalid; the further process of

selecting her and appointing her to the post of 'Supervisor' is also

invalid.

11. With reference to the second question, learned counsel for the

appellant submitted that issuing a transfer certificate in the name of

respondent no. 4 after the last date of filing the application would not

revalidate respondent no. 4's application with retrospective effect. He

submits that by relying upon transfer certificate in the name of

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respondent no. 4 issued after the last date of filing the application

would render condition no. 7 to be redundant. He submits that the

condition no. 7 in the instructions of the advertisement cannot be

treated as an empty formality as the PAP certificate promises the PAP

person to avail the benefit only once. Thus, transferring the certificate

in the name of family member of PAP cannot be accepted as an empty

formality as it requires necessary investigation as to whether the

benefit under the PAP certificate is availed at a prior point in time.

Learned counsel for the appellant thus submits that even the second

question be answered in favour of the appellant. He submits that the

issuance of a transfer certificate cannot validate the application with

retrospective effect.

12. To support his submissions, learned counsel for the appellant

relied upon the decision of the Hon'ble Apex Court in the case of

Rekha Chaturvedi vs. University of Rajasthan and Others 1,

Bhupinderpal Singh and Others vs. State of Punjab and Others 2,

Ashok Kumar Sonkar vs. Union of India and Others 3 and Divya vs.

Union of India and Others4.

1 1993 Suppl (3) SCC 168 2 (2000) 5 SCC 262 3 (2007) 4 SCC 54 4 (2024) 1 SCC 448

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13. Learned counsel for the appellant submitted that by applying the

legal principles and guidelines laid down by the Hon'ble Apex Court in

the decision of Rekha Chaturvedi, acceptance of the transfer

certificate of respondent no. 4 after the date of application and the

completion of the selection process is illegal. Learned counsel for the

appellant relied upon the decisions in the case of Bhupinderpal Singh

and the case of Ashok Sonkar and submitted that the relevant cut-off

date for testing the eligibility qualification must be considered on the

date of application.

14. Learned counsel for the appellant relied upon the legal

principles settled in the case of Divya to point out the word 'eligible'

interpreted by the Hon'ble Apex Court. He submits that in view of the

well-settled principles, the transfer certificate in the present case relied

upon by respondent no. 4 would not validate her application with a

retrospective date. He thus submits that the entire selection process

and appointment of respondent no. 4 stands vitiated for non-

compliance with condition no. 7 of the advertisement.

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15. Learned counsel for the appellant thus submits that both the

questions of law be answered in favour of the appellant and her suit be

decreed as prayed.

Submissions on behalf of Respondent no. 4 :

16. Learned counsel for respondent no. 4 argued on the point of

maintainability of the suit for want of notice under Section 280 of The

Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 ("Zilla

Parishad Act"). Learned counsel for respondent no. 4 pointed out the

issues framed by the trial court and the points for determination framed

by the First Appellate court. He submitted that the defendants in their

respective written statements, raised a specific objection on the

maintainability of the suit for want of notice under Section 280 of the

Zilla Parishad Act.

17. Learned counsel for respondent no. 4 relied upon the admissions

given by the plaintiff to support his contention that the suit was not

maintainable for want of notice under Section 280 of the Zilla Parishad

Act. Learned counsel for respondent no. 4 submitted that the appellant

relied upon waiver of notice under section 80 of The Civil Procedure

Code, 1908 ('CPC') and submitted that the notice under Section 280 of

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the Zilla Parishad Act was not necessary. Learned counsel for

respondent no. 4 thus submits that contention about waiver of notice

under Section 80 of the CPC would not satisfy issuance of notice

under Section 280 of the Zilla Parishad Act. Learned counsel for

respondent no. 4 thus submitted that the suit itself was not

maintainable for want of notice under Section 280.

18. Learned counsel for respondent no. 4 submitted that the

requirement of condition no. 7 of the advertisement only means that

the PAP could apply for the post. He submitted that sub-section (2) of

Section (2) of the Rehabilitation Act defines the 'affected persons',

which includes the family members, including the daughter-in-law of

the PAP. He submits that, therefore, a candidate applying for the post

is only required to be a member of the affected family.

19. To support his submission, learned counsel for respondent no. 4

relied upon the explanation of sub-section (2) of Section 2 of the

Rehabilitation Act, which includes family members as project-affected

persons. Learned counsel for respondent no. 4 further submitted that

the instructions in the advertisement did not specify that the certificate

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has to be in the name of the candidate making an application. He

submits that the only meaning of condition no. 7 is to submit the PAP

certificate issued under the Rehabilitation Act. Learned counsel for

respondent no. 4 submitted that, admittedly, the name of respondent

no. 4's father-in-law appears as a PAP much prior to the

advertisement. Hence, the plaintiff's objection to the application to be

invalid has no substance.

20. Learned counsel for respondent no. 4 thus submitted that the

requirement of condition no. 7 is only on the PAP certificate, which

was submitted by respondent no. 4 along with her application. He

submitted that only for clarification purposes, a transfer certificate in

her name was issued before her appointment. Learned counsel for

respondent no. 4 thus submitted that both the questions framed by this

court must be answered in favour of respondent no. 4.

Submissions on behalf of respondent nos. 1 and 2 (Zilla Parishad)

21. Learned counsel appearing for Zilla Parishad supported the

submissions made on behalf of respondent no. 4. He submitted that

the requirement as per condition no. 7 is only to submit the PAP

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certificate. He submits that a family is treated as an affected person in

view of sub-section (2) of Section 2 of the Rehabilitation Act. He

submits that Section 6(c) is inclusive of the definition of a family, and

therefore, the benefit is to be given to the members of the family of

PAP who are nominated by the PAP to take benefit of the certificate.

He submits that there is no requirement to submit a certificate in the

name of the candidate. Hence, for want of a certificate in the name of

respondent no. 4 her application could not have been treated as

invalid. He submits that even otherwise, the certificate transferred in

the name of respondent no. 4 was submitted before appointing her.

Hence, he submits that there is no substance in the objection raised

on behalf of the appellant.

22. Learned counsel for Zilla Parishad relied upon the date of

submission of the certificate. He submits that, admittedly, the PAP

certificate in the name of respondent no. 4 was submitted before the

interview was conducted. Hence, the requirement of submitting the

PAP is only to show the entitlement of the candidate to avail of the

benefit of PAP. He submits that the certificate in the name of the head

of the family, i.e., the main PAP and the application made by the main

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PAP to transfer it to the name of the family member, amounts to

satisfying the requirement as prescribed under the conditions

published in the advertisement.

23. Learned counsel for Zilla Parishad referred to the gazette

notification dated 21st January 1980. He submitted that the documents

submitted by respondent no.4 clearly indicated that she was

nominated as PAP being the daughter-in-law of the PAP. He submits

that in view of clause(c) of Section (6) of the Rehabilitation Act, a PAP

is entitled to nominate any of the family members to avail the benefit of

the PAP certificate. He submits that clause (4) of the certificate

provides for an obligation on the employer to inform the Rehabilitation

Officer of availing the benefit. He, therefore, submits that clause (5) of

the certificate clearly shows the entitlement of the dependent family

members of the PAP's family. He thus submits that once there is no

dispute that respondent no. 4 belongs to the family of PAP and a

transfer certificate in her name is submitted before completion of the

selection process, it amounts to sufficient compliance with the terms

and conditions of the selection process.

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24. Learned counsel for Zilla Parishad submits that all the

documents submitted by respondent no. 4 show that she is a family

member of the PAP on the date of filing the application. He submits

that, thus, before the appointment process was completed, the scrutiny

was already done by the Rehabilitation Authority that the benefit of the

PAP certificate was never availed by the family of PAP. He, therefore,

submits that as per the Government policy, respondent no. 4 is entitled

to avail the benefit being family member of PAP.

25. Learned counsel for Zilla Parishad submitted that the plaintiff, i.e.

appellant, participated in the selection process; therefore, she cannot

challenge the selection process by filing a suit. He submits that the

appellant's attempt is actually on the ground raised to wriggle out the

requirement under Section 280 of the Zilla Parishad Act. He thus

supports the submissions on behalf of respondent no. 4 that the suit

itself was not maintainable for want of notice under Section 280 of the

Zilla Parishad Act.

26. With reference to the legal principles relied upon by the learned

counsel for the appellant in the decisions of the Hon'ble Supreme

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court, learned counsel for Zilla Parishad submitted that the said

decisions are distinguishable on the ground that if the basic

requirement of qualification is absent only then the legal principles

would apply. Learned counsel for the Zilla Parishad submits that in the

present case, respondent no.4 was qualified on the relevant date of

filing the application, and only the document confirming the certificate

transferred in her name was submitted at a later stage. According to

the learned counsel for the Zilla Parishad, once on the relevant date,

respondent no. 4 was a member of the PAP and was also nominated

by the PAP to avail the benefit respondent no. 4's application cannot

be invalidated on the ground that the PAP certificate in the name of

respondent no. 4 was not submitted on the date of filing the

application.

27. Learned counsel for the Zilla Parishad submitted that the

decision in the case of Divya relied upon by the learned counsel for the

appellant is on facts of the said case as the requirement on eligibility

was based on year to year basis. He pointed out the facts referred to

in paragraph 42 of the judgment and submitted that the legal principles

are with reference to the facts of that case, and, therefore, the same is

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not of any assistance to the arguments raised on behalf of the

appellant.

28. Learned counsel for Zilla Parishad relied upon the decision of the

Hon'ble Apex court in the case of Charles K. Skaria and Others vs. Dr.

C. Mathew and Others5. Learned counsel for Zilla Parishad submitted

that over-stressing on literality undermines the substantiality of the

guidelines in the prospectus as held by the Hon'ble Apex Court. He

thus submits that once the qualification / eligibility of respondent no. 4

on the date of application is not questionable, her application cannot

be held to be invalid by making the condition mandatory on the date of

filing the application. He thus submits that in view of the legal

principles settled by the Hon'ble Apex Court, the relevant date is to

determine the actual qualification on the relevant date, and thus, in the

present case, submission of the transfer certificate after the date of

application would not invalidate the application.

29. Learned counsel for Zilla Parishad thus submitted that in the

present case, the eligibility of respondent no. 4 was in existence, and

only documents were submitted later. Hence, he submits that condition

5 (1980) 2 SCC 752

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no. 7 cannot thus be held to be mandatory to the extent of invalidating

the application. Learned counsel for Zilla Parishad also relied upon

paragraph 11 of the decision in the case of Rekha Chaturvedi. He

submits that the Hon'ble Apex Court held that almost eleven years had

elapsed from the date of selection, and thus, the Supreme Court

refused to interfere in the selection process. He submits that in the

present case, almost fourteen years have passed since the date of the

selection process, and at this stage, respondent no. 4's application

cannot be invalidated for want of submission of the PAP certificate in

her name on the date of filing the application. Learned counsel for Zilla

Parishad thus submitted that both the questions framed by this court

must be answered in favour of the respondents.

Submissions in rejoinder:

30. In response to the submissions made on behalf of the

respondents, learned counsel for the appellant points out the interim

order passed by the trial court, which this court also continued. He

submits that even the appointment order of respondent no. 4 states

that it is subject to the final approval and decision in the suit. He thus

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submits that issuance of transfer certificate in the name of the

candidate who intends to avail of the certificate cannot be termed as

an empty formality. He submits that clause (c) of Section 5 of the

Rehabilitation Act provides for issuing a certificate to a person who is

nominated by the PAP for being employed against the quota reserved

for the nominee of the affected person. He submits that if such a

certificate is not provided at the time of filing the application, the

selection would mean on account of a presumption that the benefit

under the PAP certificate is not availed by the PAP or any of his family

members.

31. Learned counsel for the appellant relied upon the list of

disqualified candidates annexed on page 292 of the private paper

book. He submits that the candidate mentioned at Serial No. 52 was

declared ineligible by the Zilla Parishad for want of a PAP certificate in

the name of the candidate. Learned counsel for the appellant thus

submits that Zilla Parishad has applied different criteria for different

candidates, which clearly indicates that only to favour respondent no. 4

her application was treated as valid even though there was no

certificate in her name as it was required under condition no. 7 of the

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conditions published in the advertisement. He submits that, admittedly,

there was no PAP certificate in the name of respondent no. 4. Thus, it

is difficult to understand how the scrutiny officer presumed that the son

of the PAP who was nominated by the PAP had not availed the benefit

of the certificate.

32. Learned counsel for the appellant submits that the decision of

the Hon'ble Apex Court relied upon by the Zilla Parishad would not be

applicable in the facts of the present case. He submits that the legal

principles settled by the Hon'ble Apex Court are based on the facts

referred to in paragraphs 47 and 50 of the judgment. He thus submits

that the legal principles relied upon by the learned counsel for the Zilla

Parishad would not be applicable to the facts of the present case.

33. With reference to the argument raised regarding want of notice

under Section 280 of the Zilla Parishad Act is concerned, learned

counsel for the appellant submitted there was no specific pleading with

reference to these objections. He submitted that there is no specific

bar to the filing of the suit without issuing notice. He submits that for

want of any such specific objection, there was neither any issue

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framed in the trial court nor points of determination framed in the First

Appellate Court. He, therefore, submits that the Second Appeal was

not admitted on any such question of law regarding want of notice

under Section 280. He, therefore, submits that there is no substance in

the argument raised on behalf of the respondents on the requirement

of notice under Section 280.

Consideration of Submissions and Conclusions:

34. I have considered the rival submissions. There is no question of

law framed on the maintainability of the suit. I do not find any

substance in the arguments on the non-maintainability of the suit for

want of notice under Section 280 of the Zilla Parishad Act. A perusal of

the written statement of respondent no. 4 shows that respondent no. 4

had never raised any such objection. The Zilla Parishad has vaguely

contented that necessary notice under the Zilla Parishad Act is not

served. The trial court held that the recruitment process was

conducted through the selection committee established under the

government notification and not under the provisions of the Zilla

Parishad Act; hence, notice, as contemplated under Section 280 of the

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Zilla Parishad Act, was not necessary. The advertisement was issued

in terms of the Government Notification dated 17 th December 2009 by

the member (Chief Executive Officer of Zilla Parishad) and the

chairperson of the District Selection Committee (the District Collector).

The first appellate court confirmed the trial court's findings, holding that

the suit was maintainable. To substantiate their objection on the

maintainability of the suit, nothing was pointed out by the learned

counsels for respondent no. 4 and the Zilla Parishad that the suit was

for anything done in pursuance of the Act. I do not find any illegality or

perversity in the concurrent findings recorded by both courts on the

maintainability of the suit. Hence, I do not see any reason to invoke

the power in terms of the proviso to sub-section (5) of Section 100 of

the CPC.

35. The questions of law to be decided pertain to the controversy

regarding the validity of the application of respondent no.4 for want of

the certificate of the project-affected person in her name. There is no

dispute that respondent no.4 did not submit a certificate in her name

along with her application. Admittedly, the PAP certificate in the name

of respondent no. 4 was submitted after the last date of submission of

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the applications. The advertisement contains terms and conditions for

filing applications. The relevant condition regarding the filing of the

certificate is condition no. 7, which provides that the project-affected

candidates should attach the true copy of the certificate of the project-

affected person from the concerned District Rehabilitation Officer,

along with the application, failing which, the application shall be treated

as invalid. Thus, filing of such certificate is mandatory for a valid

application. Thus, the controversy to be resolved is whether the

requirement is only filing a certificate of PAP or whether the certificate

has to be in the candidate's name, on the last date of the filing of the

application.

36. The certificate of PAP is issued under the provisions of the

Rehabilitation Act. The parties do not dispute that the certificate is

issued for the benefit of the family of PAP, as is defined under the

relevant provisions of the Rehabilitation Act. The parties also do not

dispute that the benefit under the certificate can be availed by the PAP

only once. Thus, either the PAP in whose name the certificate is

issued or any one member of the PAP's family can avail the benefit of

employment.

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37. The definition of the 'affected person' is provided in Section 2(2)

of the Rehabilitation Act, which reads as under:

"2. (2)"affected persons" means--

(a) an occupant whose land in the affected zone (including land in the gaothan) is acquired under section 14 for the purposes of a project;

Explanation.--For the purpose of this sub-clause, where any agricultural land is recorded in the relevant village records in the name of one of the brothers as a Karta or Manager of a Hindu Joint Family, then every brother 1 [or sister] or [son or sons or daughter or daughters of each deceased brother or deceased sister as one separate unit of such brother or sister] who has a share in the lands, whether his name is recorded in such village record or not, shall be treated as affected person;

(b) a person who is a tenant in actual possession of land under the relevant tenancy law in the affected zone at the time of acquisition of land;

(c) an occupant whose land in the benefited zone is acquired for construction, extension, improvement or development of canals and their banks under irrigation project or for establishment of a new gaothan within or outside the benefited zone for rehabilitation of persons from affected zone,and whose--

(i) residual cultivable holding is reduced to less than one hectare after acquisition; or

(ii) residual holding stands divided into fragments which are rendered unprofitable for cultivation; or

(iii) residual holding is rendered uncultivable.

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Explanation.--For the purposes of this sub-clause, the expression "occupant" includes a tenant in actual possession of land under the relevant tenancy law in the benefited zone at the time of acquisition of land;

(d) a person who is an agricultural labourer;

(e) a person, not being an occupant or a person referred to in sub-clauses (a), (b), (c) and (d), who for a continuous period of not less than five years immediately before the date of publication of the notification under section 4 of the Land Acquisition Act, 1894 (I of 1894) has been ordinarily residing or carrying on any trade, occupation or calling or working for gain in a gaothan in the affected zone;

38. The duties and functions of the Collector are prescribed under

Section 5. The relevant provision to issue a certificate is found in

clause (c) of Section 5, which reads as under:

"5. Duties and functions of Collector.- It shall be the duty of the Collector,-

.......

(c) to issue a certificate to a person who is nominated by the project affected person for being employed against the quota reserved for the nominees of the affected persons;

39. The duties and functions of the project authority are prescribed

under Section 6. The relevant clause for the present case is clause (c),

which reads as under:

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"6. Duties and functions of project authority.- It shall be the duty of the project authority,-

......

(c) subject to any reservations validly made and subject to availability of posts, to give highest priority in Class III and Class IV category of service on the project establishment, to one member of the affected family nominated by the affected person, if such member is eligible for such employment according to the recruitment rules for such posts :

Provided that, while recruiting a member of the affected family, against such quota, the project authority shall, as far as possible, employ not less than fifty per cent. of such nominees who are affected by the project under execution, as may be prescribed;

Explanation.--For the purpose of this clause the expression "family" means the spouse, son, married or unmarried daughter or brother or sister or daughter-in-law or grandson, or grand-daughter (which includes son or daughter of the daughter also) of the affected persons, or adopted son or daughter who is residing with and is dependent on such affected person."

40. Thus, Section 5(c) of the Rehabilitation Act empowers the

Collector to issue a certificate to a person who the PAP nominates for

being employed against the quota reserved for the nominees of the

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affected person. The reference to the benefit of employment to PAP is

seen in Section 6 of the Rehabilitation Act, which prescribes the duties

and functions of project authority. Section 6(c) deals with providing

benefits of employment to one member of the affected family

nominated by the affected. The explanation to the said clause

interprets the word 'family' to mean spouse, son, married or unmarried

daughter, brother, sister, daughter-in-law, grandson, or granddaughter

of the affected person or adopted son or daughter residing with and

dependent on such affected person. Thus, the conjoint reading of

Sections 5 and 6 indicates that the employment benefit available to the

PAP can be availed by the nominee only upon receipt of such a

certificate.

41. The aforesaid provisions make it clear that it is necessary to

transfer the certificate in the name of the PAP's family member

desirous of availing the benefit. The purpose of issuing the certificate

to a PAP and transferring the certificate in the name of the person

desirous of availing the benefit is a crucial aspect. Both the process of

issuing and transferring the certificate is to avoid misuse of the PAP

certificate; hence, it has to be done after due inquiry. The intention of

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these provisions is clear that either the PAP or one member of the

PAP's family nominated by the PAP can avail of the employment

benefit. Thus, the issuance of a transfer certificate in the name of

PAP's nominee is not an empty formality. The purpose of the issuance

of a certificate is to ensure that the benefits available to the PAP are

availed only once.

42. The purpose of reserving the post for PAP is to enable the PAPs

to avail of the employment benefits. One of the important objectives of

the selection process through advertisement is to avoid favouritism.

Hence, the selection process has to be impartial, fair, objective and

equitable to every competitor. The Hon'ble Full Bench of this court, in

the case of Rajendra Pandurang Pagare v. State of Maharashtra 6,

decided the issue of whether the project affected persons can be

appointed without advertising the posts. The Hon'ble Full Bench, held

in paragraph 41 as under:

"41. No doubt, that under the Government Circulars, the Collectors are also required to sponsor the names of eligible candidates to the recruitment authority. However, since we have already held hereinabove, that the district-wise reservation is not permissible under the Constitution, the candidates from the other districts, who 6 2009 SCC OnLine Bom 955

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are project affected persons, would also be entitled to compete with the candidates who are sponsored by the Collector. In the absence of the advertisement, it will not be possible for them to get knowledge about recruitment process initiated in the areas beyond their district. We, therefore, find that in order to ensure the equality of opportunity which is guaranteed in the matter of employment under Article 16 of the Constitution, it would be necessary that the posts reserved for project affected persons are advertised so that all the eligible candidates can submit their applications and get an opportunity to compete with others in their category."

emphasis applied

43. Thus, the terms and conditions prescribed in the advertisement

for filing applications must be followed strictly. If any relaxations are

tried to be read in the terms and conditions, it will defeat the purpose

of advertising the post to enable the candidates to compete for the

post. Condition no. 7 is self-explanatory and a self-operative condition;

it says the application shall be invalid if not filed by the candidate with

a PAP certificate. The certificate enables the PAP to avail the benefit

of employment. Thus, if the benefit is to be availed by any family

member of the PAP, the certificate is to be transferred in the name of

the family member. There is no debate on the requirement of the PAP

certificate in the name of the person wanting to avail the benefit of

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employment. Therefore, as per condition no. 7, filing of the PAP

certificate along with the application must be in the name of the

candidate. If the application is accepted as a valid application without

the PAP certificate in the candidate's name, it will render the condition

futile and defeat the very object of the advertisement, permitting the

candidates to compete with others in the same category. Thus, any

attempt to relax the self-explanatory and self-operative condition no. 7

of the advertisement would create room for favouritism.

44. In the present case, respondent no. 4 does not fall under the

definition of 'affected person'. She has applied pursuant to the

advertisement by claiming the benefit as nominee of the PAP. Thus,

she, being the daughter-in-law of the PAP, would be entitled to the

benefit if she is nominated by the PAP. There is no dispute that

respondent no.4's father-in-law is the PAP who had initially nominated

his son, i.e. respondent no.4's husband. However, the son did not avail

the benefit. Thus, on an application made by the PAP, the certificate

was transferred in the name of respondent no. 4. There is no dispute

that the certificate was not transferred in the name of respondent no. 4

on the date she applied for the post. Admittedly, respondent no. 4's

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application was not accompanied by a certificate in her name. Thus,

on the date respondent no. 4 applied for the post, there was no inquiry

made by the Collector whether the PAP or any of his family members

had availed the benefit. In the event any other nominee of the PAP

had already availed the benefit, the Collector would not have issued a

certificate in the name of respondent no.4.

45. The Hon'ble Apex Court, in the case of Rekha Chaturvedi, held

that the relevant date for verifying the qualification has to be treated as

the date specified in the application. It is held in the absence of a fixed

date indicated in the advertisement, when the selection committee

considers the requisite qualification, the same has to be considered as

on the last date of filing the application. In the decision of the Hon'ble

Apex Court, in the case of Bhupinderpal Singh, it is held that a

candidate cannot be treated as qualified if, on the date of application,

the candidate is found to be ineligible and the relevant cut-off date for

testing the eligibility qualification must be considered on the date of

application. A similar proposition is laid down in the decision of the

Hon'ble Apex Court in the case of Ashok Sonkar.

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46. In the case of Divya, the Hon'ble Apex Court interpreted the

word 'eligible' to mean that when there are relevant rules prescribed

for the selection process, the candidate is required to be eligible, which

would mean fit to be chosen on the date of application and not on any

subsequent date.

47. Thus, in view of the well-established legal principles, the relevant

date to ascertain eligibility would be the date of application. In the

present case, there is no issue of any valid qualification. However, the

issue is about eligibility for being considered for the appointment to the

post reserved for PAP. Therefore, condition no. 7 of the terms

prescribed in the advertisement provide for a mandatory requirement

of submitting a PAP certificate by the candidate along with the

application, failing which the application shall be treated as invalid. I

have already recorded my reasons for holding that the terms and

conditions prescribed in the advertisement for filing applications must

be followed strictly.

48. I have recorded reasons for holding that any attempt to relax the

self-explanatory and self-operative condition no. 7 of the

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advertisement would create room for favouritism. One important

aspect is therefore necessary to be taken into consideration. It is

brought on record that respondent no. 4's father-in-law was working as

a teacher in Zilla Parishad School and her husband is working as

Animal husbandry officer in Zilla Parishad. There is no dispute upon

the list of disqualified candidates annexed on page 292 of the private

paper book. The candidate mentioned at Serial No. 52 was declared

ineligible by the Zilla Parishad for want of a PAP certificate in the name

of the candidate. Thus, it is clear that Zilla Parishad has applied

different criteria for different candidates. The learned counsel for the

appellant submitted that only to favour respondent no. 4 her

application was treated as valid even though there was no certificate in

her name as it was required under condition no. 7 of the conditions

published in the advertisement. It is difficult to understand how

respondent no.4's application was accepted as valid, when there was

no power to relax condition no. 7 or extend the time for submitting the

PAP certificate in the candidate's name. Accepting respondent no.4's

application as valid without a certificate in her name would amount to

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assuming that the PAP or any other family member has not availed of

the benefit. Thus, the possibility of favouritism cannot be ruled out.

49. I do not find any substance in the arguments of learned counsel

for Zilla Parishad that, as held by the Hon'ble Apex Court in the

decision of Rekha Chaturvedi, this court should refuse to interfere in

the selection process as almost fourteen years have elapsed from the

date of selection. There is no dispute that by the interim order passed

by the trial court, which this court also continued, respondent no. 4's

appointment was made subject to the final approval and decision in

the suit. Even the appointment order of respondent no. 4 states that it

is subject to the final approval and decision in the suit. Therefore,

respondent no. 4 cannot claim any equity. Thus respondent no. 4's

application cannot be validated on the ground that the selection

process was completed fourteen years back.

50. The legal principles settled by the Hon'ble Apex Court in the

decision of Charles K. Skaria relied upon by the learned counsel for

the Zilla Parishad would not apply to the facts of the present case. In

the facts of the decision of Charles K. Skaria, the issue was about

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submitting the certificate of diploma before finalising the selection to

post-graduate courses, as per the directions issued by the government

to the selection committee. In the facts of the present case, the issue

is about the interpretation of condition no. 7 of the terms notified in the

advertisement, which provides that the application filed without a PAP

certificate by a candidate applying for the post reserved for PAP, shall

be invalid. Thus, in the present case, there was no power to extend the

time.

51. The following decisions relied upon by the learned counsel for

respondent no. 4 are not applicable to the facts of the present case. In

the decision of this court in Gautam Jaideo Sarkar and Others vs. The

State of Maharashtra and Others7 the issue was about claim of

promotion under the Recruitment Rules framed under the Zilla

Parishad Act. In the present case the selection process is through the

selection committee established under the Government Resolution

dated 17th December 2009.

52. In the decision of Vithalbhai Pvt. Ltd. vs. Union Bank of India 8 the

Hon'ble Apex Court, held that the Court shall not exercise its discretion

8 Civil Appeal No. 2390 of 2002 dated 11/3/2005.

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in favour of decreeing a premature suit, in the cases when (i) there is

a mandatory bar created by statute (ii) institution of the suit before the

lapse of a particular time or occurence of an event would have the

effect of defeating a public policy or public purpose (iii) premature

institution of the suit is patently void and is incurable (iv) lis involves

persons other than those arrayed as parties and (v) leave of or any

authority is mandatory. In the present case, none of the contingencies

are applicable, in as much as the argument on maintainability of suit

for want of statutory notice is negatived.

53. The decision of this court in the case of Kalpesh s/o. Ashok

Kolte and Others vs. The State of Maharashtra and Others 9 was on the

requirement of registration of the concerned person before the

Collector as Project Affected Persons for seeking employment. In the

decision of this court, in the case of Deoram Tulshiram Patil vs. Zilla

Parishad, Nasik and Others10 the first appellate court had allowed the

question of maintainability of the suit for want of notice under Section

280 of the Zilla Parishads Act for the first time and dismissed the suit

only on that ground. This court set aside the first appellate court's

9 2014 (1) ALL MR 80 10 1993 (2) Mh.L.J. 1392

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decree and the trial court's decree was restored in favour of the

plaintiff. This court, held that the suit for undisputed claim for

contractual work, was not for anything done in pursuance of the Act,

as contemplated under Section 280.

54. Hence, none of the decisions relied upon by the learned counsel

for respondent no. 4 are of any assistance to the arguments raised on

behalf of respondent no. 4. In view of the different issues and facts

involved in the present case, the decisions relied upon by the learned

counsel for the respondents are not applicable to this case.

55. Thus, for the reasons recorded above, I do not find any

substance in the arguments raised on behalf of the respondents. In my

view, the application of respondent no.4 could not have been treated

as valid without the certificate of the project-affected person having

been transferred in her name on the date of application. I have

recorded my reasons for holding that the relevant date for deciding the

eligibility for being considered for the post would be the date of

application. Hence, the certificate of the project-affected person

transferred in the name of respondent no.4 after the cut-off date, i.e.

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the date of application and submitting the same on a subsequent date,

would not revalidate the application with retrospective effect.

Therefore, the selection of respondent no. 4 and her appointment

stand vitiated. Thus, both the questions of law are answered

accordingly in the appellant's favour.

56. Hence, the second appeal is partly allowed by passing the

following order:

(i) The impugned judgment and decree dated 9 th October

2014 passed by the learned Civil Judge Senior Division,

Kolhapur in Regular Civil Suit No. 780 of 2010 and the judgment

and decree dated 24th November 2015 passed by the learned

Adhoc District Judge-2, Kolhapur in Regular Civil Appeal No.

380 of 2014 are quashed and set aside.

(ii) The order dated 21st July 2011 passed by respondent nos.

1 and 2 appointing respondent no. 4 is declared as illegal and

thus quashed and set aside.

(iii) Respondent nos. 1 and 2 shall accordingly reconsider the

appointment to the post of Supervisor (Women), pursuant to the

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selection process conducted as per the advertisement dated

5th March 2010 and consider the appellant's application for the

appointment to the said post in accordance with law, pursuant to

the selection process that is completed as per the said

advertisment dated 5th March 2010.

(iv) Regular Civil Suit No. 780 of 2010 is partly decreed in the