Bombay High Court
Adhiraj Sharad Kadu And Ors vs Government Of Maharashtra Through Its ... on 23 January, 2025
2025:BHC-AS:3455
Megha 64_wp_430_2025_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.430 OF 2025
1. Adhiraj Sharad Kadu
2. Sheikh Faraz s/o Mohammad
Mushtaq
3. Kalpesh S/o Popatrao Sawant ...Petitioners
V/s.
1. Government of Maharashtra
through its Urban Development
Department, Mantralaya
2. Government of Maharashtra
through its School Education and
Sports Department
3. City and Industrial Development
Corporation (CIDCO) ...Respondents
______________
Mr. M.S. Topkar with Ms. Pavitra Manesh and Ms. Bhargavi
Patil for the Petitioners.
Mr. Yogendra Pendse with Ms. Priyanka Patkar for Respondent
No.3.
Ms. Dhruti Kapadia, AGP for Respondent Nos.1 and 2 -State.
______________
CORAM : SANDEEP V. MARNE, J.
Judgment reserved on : 16 January 2025.
Judgment pronounced on : 23 January 2025.
MEGHA
Judgment:
SHREEDHAR
PARAB
1. Rule. Rule is made returnable forthwith. With the
consent of the learned counsel appearing for the parties, the
Petition is taken up for final disposal.
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2. Petitioners have filed this Petition challenging
judgment and order dated 30 November 2024 passed by the
Member, Industrial Court, Thane, dismissing Complaint (ULP)
No.104 of 2019 filed by Petitioners for their permanency in
service by recording satisfactory completion of period of
probation.
3. Briefly stated, facts of the case are that City and
Industrial Development Corporation of Maharashtra, Ltd.
(CIDCO) issued advertisements inviting applications from
eligible candidates for filling up 192 posts of Assistant Engineer
(Civil) on 31 May 2016, by which 192 posts of Assistant Engineer
(Civil) were proposed to be filled up. The Advertisement provided
for vertical reservation for various castes and horizontal
reservation for various categories including the category of
Meritorious Sportspersons. Under 5% quota for Meritorious
Sportsperson, 8 posts were reserved, which were further divided
into Open-5, SC-1, ST-1 and OBC-1. While prescribing
reservation, reference was made in the advertisement to the
Government Resolution (GR) dated 30 April 2005. The
advertisement further provided for grant of preference to the
candidates possessing SAP ERP (TERP-10) certificate from SAP
Global Services and in the event of selection of a candidate not
possessing SAP ERP (TERP-10), he/she was supposed to produce
such certificate within one year of probation period. Petitioners
applied in pursuance of the advertisement against sports quota
vacancies and relied upon certificates of participation in sporting
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activities. They were adjudged eligible to participate in the
selection process. After conduct of online examination and after
award of additional marks to candidates possessing SAP ERP
(TERP-10) certification, Select List was published, in which
Petitioners were selected for appointment on the post of
Assistant Engineer (Civil). Appointment orders were issued on 7
October 2016 appointing Petitioners as Assistant Engineers
(Civil) in CIDCO in pay band of Rs.9300-34800 with Grade Pay
Rs.4400. Petitioners were placed on probation for a period of one
year, which was extendable without assigning any reason.
Paragraph 6 of the appointment order stated that certificate
produced by candidate selected against Sportsperson quota
would be sent for verification to the Competent Authority and
the appointments were to be treated as provisional till
verification of the certificate. Upon certificate being found
invalid, the services were terminable with immediate effect.
Petitioners accordingly joined in pursuance of the appointment
orders and according to them, they successfully completed the
period of probation in the year 2017. Since their confirmation
orders were not issued, they made representation dated 14 May
2019 for confirming them in service. However, instead of
confirming them in service, CIDCO issued show cause notices
dated 21 May 2019 to the Petitioners inviting their attention to
the reports received from the Competent Authorities after
verification of their certificate of Sportsperson certifying that
they were eligible for appointment only against Group 'C' and 'D'
categories and that their Certificates did not conform to criteria
for appointment against Group 'B' posts as per the appointment
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letter dated 7 October 2016. It was stated that post of Assistant
Engineer (Civil) is a Group 'B' post. Petitioners were called upon
to submit their response to the notice dated 21 May 2019.
4. Petitioners filed Complaint (ULP) No.104 of 2019
before the Industrial Court, Thane, on 29 May 2019. It appears
that the Industrial Court passed interim order not to discontinue
the services of the Petitioners and this is how they continued to
remain in service of CIDCO during pendency of the Complaint.
The Industrial Court has proceeded to dismiss the Complaint by
judgment and order dated 30 November 2024, which is subject
matter of challenge in the present Petition.
5. Mr. Topkar, the learned counsel appearing for the
Petitioners would submit that the Industrial Court has erred in
dismissing Petitioners' Complaint without appreciating the fact
that Petitioners have been validly appointed on the posts of
Assistant Engineer (Civil) after due verification of the eligibility
criteria. That the sports certificates submitted by Petitioners
were accepted by CIDCO thereby permitting Petitioners to
participate in the selection process. That Condition No.6 in the
appointment order envisaged mere verification of sports
certificate. That sports certificate submitted by Petitioners are
found to be genuine and that therefore Condition No.6 of the
appointment order is fully met with. That appointments of the
Petitioners are now sought to be questioned on extraneous factor
of sports certificates not being supportive of appointment against
Group 'B' post of Assistant Engineer (Civil). That Petitioners
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were never made aware that they were applying for appointment
against Group 'B' posts as the advertisement was silent about
the exact group to which the post Assistant Engineer (Civil)
belongs. That there is no misrepresentation on the part of the
Petitioners, who bonafidely submitted their sports certificates
and gave up their other jobs to join the post of Assistant
Engineer (Civil) with CIDCO. That on successful completion of
period of probation they deserve to be confirmed in service and
are deemed to have been confirmed in service. That Petitioners
have by now rendered more that 8 years of service and impugned
order of the Industrial Court would result in their termination.
That the Industrial Court has erroneously held in its judgment
that the Petitioners admitted knowledge of the fact that post of
Assistant Engineer is Group 'B' post by taking into consideration
reply dated 7 June 2019 filed by them ignoring the position that
the knowledge as on the date of filing of the Application was
relevant. He would submit that disturbing services of Petitioners
at such a belated stage would cause them grave prejudice. He
would pray for continuation and confirmation of their service by
setting aside the impugned judgment and order of the Industrial
Court.
6. The Petition is opposed by Mr. Pendse, the learned
counsel appearing for Respondent No.3-CIDCO. He would submit
that Petitioners were specifically made aware that the
reservation was being granted in accordance with terms and
conditions of GR dated 30 April 2005. That since Petitioners
applied against sports quota, it was incumbent for them to verify
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whether the sports certificates issued to them would make them
eligible to apply for appointment as Assistant Engineer (Civil).
That Petitioners were thus fully aware that they were required to
submit certificate of participation and secure of first, second or
third position at national level sporting event, whereas what they
produced are certificates of State level competitions. That
Petitioners were fully made aware that their appointments were
provisional and subject to verification of their sports certificates.
After verification, it transpired that the sports certificates relied
upon by Petitioners do not make them eligible to compete for
Group 'B' posts of Assistant Engineer (Civil). That since
Petitioners do not fulfill the eligibility criteria for appearing
against sports quota vacancies, their services are liable to be
terminated. He would submit that the Industrial Court has
correctly appreciated factual and legal position and its
reasonings do not warrant an interference in exercise of
extraordinary jurisdiction of this Court under Article 227 of the
Constitution of India. He would pray for dismissal of the Petition.
7. I have also heard Ms. Kapadia, the learned AGP for
Respondent Nos.1 and 2-State, who would also support the
Order passed by the Industrial Court and would pray for
dismissal of the Petition.
8. Rival contentions of the parties now fall for my
consideration.
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9. The short issue that arises for consideration in the
present case is whether Petitioners have made out a case for
confirmation of their appointments on Group-B post of Assistant
Engineer (Civil) in the light of verification reports received from
the office of Deputy Director, Sports and Youth services
certifying that sports certificates issued in their names are valid
only for appointment against Group 'C' or 'D' service in the State
Government.
10. To decide the issue at hand, it would be necessary to
take into consideration the relevant clauses of the advertisement.
In the advertisement, total 8 posts of Assistant Engineer (Civil)
were reserved horizontally for meritorious sportspersons against
5% quota by further sub-dividing the posts into Open-5, SC-1,
ST-1 and OBC-1. The advertisement contained following
stipulation under the head 'Age limit and eligibility criteria:'-
(4) There shall be 5% Horizontal reservation for Meritorious
Sportspersons for games as notified by the Government of
Maharashtra in its GR dated 30.04.2005.
(emphasis added)
Since the advertisement referred to GR dated 30 April 2005, it
would be apposite to consider the provisions of the said GR. GR
dated 30 April 2005 has been issued for providing 5% reservation
to meritorious sportspersons. Paragraph 4 of the GR deals with
sports wise eligibility for claiming reservation. Paragraph 4B
deals with eligibility for Group 'B' posts whereas paragraph 4C
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deals with appointment against Group 'C' and 'D' posts.
Paragraphs 4B and 4C read thus:
गट-ब साठी अर्हता
सदर पदांसाठी त्या त्या खेळांच्या वैयक्ति क अथवा सांघि क क्रीडा स्पर्धांा#मध्ये
मर्हाराष्ट्रातर्फे) प्रघितक्ति+र्धांीत्व करता+ा राष्ट्रीय अजिं-क्यपद स्पर्धां)त प्रथम, क्ति/तीय
अथवा तृतीय स्था+ प्राप्त करणारा किंकवा सुवण, रौप्य किंकवा कास्य पदक प्राप्त
करणारा खेळाडू .
(Translated as)
Eligibility for Group-B
Sportsperson securing first, second or third place or gold, silver or
bronze medal in national tournament while representing Maharashtra
in individual or team sports for respective posts
क) गट-क व ड साठी अर्हता
सदर पदांसाठी त्या त्या खेळांच्या वैयक्ति क अथवा सांघि क क्रीडा स्पर्धांा#मध्ये
क्तिकमा+ राज्य अजिं-क्यपद स्पर्धांा#त प्रथम, क्ति/तीय व तृतीय स्था+ प्राप्त करणारा
किंकवा सुवण, रौप्य किंकवा कास्य पदक प्राप्त करणारा खेळाडू .
(Translated as)
Eligibility for Group 'C' and 'D'
Sportsperson securing first, second or third place or gold, silver or
bronze medal in minimum state tournament in individual or team
sports for respective posts
11. Thus, under the provisions of GR dated 30 April 2005,
only the sportsperson securing first, second or third position or
gold or silver or bronze medals in national tournaments while
representing State of Maharashtra in either personal or group
sports are eligible for Group 'B' post. Thus, apart from mere
participation in national level tournaments, what is also required
is the representation of State of Maharashtra therein. As
against this, the sportsperson securing first, second or third
position or gold, silver or bronze medal in State level
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tournaments is held eligible to seek reservation against 5%
sports quota.
12. Upon their selection, Petitioners were issued
appointment orders dated 7 October 2016. The relevant terms
and conditions of the appointment letter are as under:
APPOINTMENT LETTER
With reference to the online exam conducted on 17th July
2016 and subsequent verification of documents the following
candidates have been appointed to the post of "ASSISTANT
ENGINEER (CIVIL)" in our Corporation, in the Pay Band
PB-2 (Rs.9300-34800) with Grade Pay Rs.4400/- plus usual
allowances as admissible under CIDCO Rules, on following
terms and conditions:
1. Your appointment is made under OPEN-Sportsperson
Category.
2. Candidate may please note this appointment is subject to
the final outcome of the Writ Petition No. 1171 of 2016 &
Writ Petition No. 2560 of 2016 pending before the Hon'ble
High Court at Bombay. Please note that this appointment is
made purely on Provisional basis as per directives of
Hon'ble High Court and will be subject to the final outcome
of the court case.
3. Initially you will be under 'Probation' for a period of one
year. This probation period can be extended without
assigning any reason. Unless otherwise informed the
probation period shall be deemed to have been extended.
After the satisfactory completion of the probation period,
your services will be confirmed and the increment will be
released as per the prevailing service rules.
xxx
6. The certificates of a candidate selected against
Sportsperson quota shall be send for verification to
the Competent Authority. It may be noted that the
appointment will be treated as Provisional till the
certificate is verified. In case, upon verification of the
certificate by the Competent Authority, is found
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invalid, the services will be terminated with
immediate effect.
(emphasis added)
13. Thus, Petitioners' appointments were made under
open sportsperson category and their appointments were
provisional subject to verification of their certificates by the
Competent Authority. It was specifically made clear that if the
certificates were found invalid upon verification by the
Competent Authority, the services were to be terminated with
immediate effect.
14. It appears that after issuing of appointment orders on
7 October 2016, the Sports Certificates submitted by Petitioners
were sent for verification to the Competent Authority. The
verification letter dated 25 June 2018 together with verification
certificate in Form 'F' issued by Deputy Director, Sports and
Youth Services, Nashik Division, Nashik in respect of Petitioner-
Kalpesh Popatrao Sawant is placed on record. The certificate
certifies that Petitioner-Kalpesh Popatrao Sawant had
participated in State level school hockey tournament during
2001-2002 and had secured second position. The verification
report clearly certifies that said Petitioner fulfills eligibility
criteria for sports quota of only Group 'C' and 'D' posts. The
Sports Certificate issued in Form-4 also certifies that the same
was only for employment to Group C/D service under the State
Government. There is no dispute to the position that similar
verification reports are received in respect of the other two
Petitioners as well. Thus, after verification of their sports
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certificates it has transpired that none of the Petitioners have
participated in national level sports tournaments for being
eligible for sports quota for appointment in Group 'B' services of
the State Government.
15. Mr. Topkar has submitted that Petitioners were never
made aware about the fact that they were required to submit
certificates of participation in national level tournaments while
applying for the post of Assistant Engineer. I am unable to
agree. Advertisement specifically provided that 5% reservation
quota was provided only for Meritorious Sportspersons for games
'as notified under the GR dated 30 April 2005'. The said GR
clearly prescribes that only sportspersons participating in
national level competitions alone are eligible to claim reservation
for appointment against Group 'B' posts. The argument that
Petitioners were unaware about the exact group to which the
post of Assistant Engineer belongs in State services does not cut
any ice. The pay scale and grade pay of the post was clearly
indicated and reference was also made to GR dated 30 April 2005
in the advertisement. It was therefore Petitioners' duty to find
out as to whether they fulfilled eligibility criteria for claiming
reservation against 5% Sportsperson quota.
16. What is relevant in the present case is eligibility of
the Petitioners to participate in the selection process. All the
Petitioners belong to open category and there is no dispute to the
position that they held both educational qualification as well as
experience for participation in the selection process. However,
they could not secure the requisite merit position at the end of
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selection and therefore got selected only against reservation
meant for 5% quota fixed for meritorious sportspersons. Thus,
Petitioners claimed special status for being preferred over others
by relying on their status as sportspersons. Once such special
status is claimed, strict adherence with the eligibility criteria
prescribed for claiming special status was mandatory. There is no
room for discretion even with the appointing authority let alone
with the Industrial Court to relax any of the conditions
prescribed for claiming 5% reservation meant for meritorious
sportsperson.
17. Mr. Topkar has placed on record certificate initially
submitted by Petitioners for claiming 5% reservation meant for
meritorious sportsperson. Perusal of the said certificates
indicates as under:
(i) Petitioner- Kalpesh Sawant, while being in Gautam
Public School, Gautamnagar had participated in
Hockey Tournament conducted during 8 to 10
November 2001 and had secured second position.
The certificate itself made it clear that the same
was in respect of State level school Hockey
tournament.
(ii) Petitioner-Adhiraj Sharad Kadu participated in
State level sports competition and secured third
position in 4 x 10 meter relay.
(iii) Mr. Faraz Shaikh participated in 26th Senior
Maharashtra State Sepaktakraw championship
held on 25 to 27 December 2015 and secured
second place.
18. Petitioners were thus well aware that none of them
have participated in any national level sports competition and
the certificates issued to them shows their participation only in
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state level competitions. Petitioners thus were fully aware right
since inception that they were actually not eligible to claim
reservation against 5% quota meant for Meritorious
Sportsperson but took a calculated chance and secured
appointments as Assistant Engineers (Civil) based on certificates
of participation in State level competitions. The Condition No.6
in the appointment order left no manner of doubt that
Petitioners' appointments were merely provisional and subject to
verification report.
19. I am unable to agree with the contention of Mr.
Topkar that verification merely includes checking genuineness or
authenticity of the certificate. The process of verification would
obviously include examination whether there is participation by
the candidate in the desired level sporting tournaments. It would
obviously include verification of participation in one of the
prescribed sporting activities and the level at which the
competition is held. Since verification of Petitioners' Sports
Certificates disclosed their ineligibility to compete for 5%
reserved posts for meritorious sportspersons, Petitioners'
appointments did not acquire finality and their appointments
became liable for termination.
20. Mere length of service put in by Petitioners cannot be
a ground for their further retention in service once it is found
that they were ineligible right since inception to claim any
reserved category posts for meritorious sportsperson. Petitioners
have actually consumed reserved posts meant for other national
level meritorious sportspersons, who secured lesser marks by
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them by illegally blocking such a reserved post. Further
retention of Petitioners in service would tantamount to add
premium on the illegality already committed. Also of the
relevance is the fact that verification reports of the Petitioners'
Sports Certificates were issued on 25 June 2018 and their
further continuation in service is owing to interim order of the
Industrial Court. Otherwise, Petitioners would have been
terminated within a reasonable time of receipt of verification
reports. Petitioners cannot be permitted to claim any equity on
the strength of their continuance in service which is attributable
solely to interim stay order of the Industrial Court. Therefore,
rendering of service of 8 years by the Petitioners cannot be a
ground for their further retention in the service.
21. The argument that Petitioners altered their positions
by acting on representation made by CIDCO and left their earlier
jobs also does not cut any ice. Petitioners took a calculated
chance by claiming the benefit of reservation despite being fully
aware of the position that they had participated in only state
level tournaments. It is seen that all the 8 candidates appointed
against sports quota are not found ineligible. Notice dated 21
May 2019 was issued only to four candidates selected against
meritorious sportsperson quota showing thereby the remaining 4
candidates are found to be eligible for appointment against 5%
sports quota after due verification of their sports certificates.
Only three out of four candidates agitated their grievances before
the Industrial Court and are now agitating the same before this
Court. Otherwise, the four other candidates must have been
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confirmed in service after receipt of verification reports from the
Competent Authority and one candidate has apparently accepted
the position that he has no right to continue in service.
22. After considering the overall conspectus of the case I
do not find any valid ground to interfere in the impugned
decision of the Industrial Court. Petitioners indirectly attempted
to stall action of their termination by cleverly filing Complaints
praying for their confirmation in service. The Industrial Court
has rightly dismissed their complaints. The order passed by the
Industrial Court is unexceptionable.
23. Writ Petition is devoid of merits. It is accordingly
dismissed without any orders as to costs.
24. Rule is discharged.
[SANDEEP V. MARNE, J.]
25. After the order is pronounced, the learned counsel
appearing for the Petitioners seeks an order of status quo with
regard to services of the Petitioners. The request is opposed by
the learned counsel appearing for the Respondents. Considering
the fact that the Petitioners are in service since the year 2016,
status quo be maintained in respect of their services for a period
of four weeks.
[SANDEEP V. MARNE, J.]
23 January 2025
