Rajendra Vs. State of Maharashtra & Ors. [2008] INSC 506 (25 March 2008)
S.B. SINHA & V.S. SIRPURKAR (Arising out of SLP (C) No.1035-1036 of 2004) V.S. SIRPURKAR,J.
1. Leave granted.
2. The judgment of the Bombay High Court dismissing the writ petition filed
by the appellant herein as also the subsequent order dismissing the review
petition are challenged in this appeal.
3. Appellant herein came to be appointed by Leva Education Union, Leva
Boarding Zilla Peth, Jalgaon, hereinafter called the Management in
Nandinibai Vamanrao Girls High School, Jalgaon w.e.f. 1.1.2001 vide letter
dated 30.12.2000. The appellant belongs to the Other Backward Class
(OBC) category. He was a science graduate and had worked as a clerk in a
private bank. He applied to an advertisement issued by respondent no.
3 dated 23.12.2000 inviting applications for the post of Junior Clerk.
Significantly, this post had become vacant since the earlier employee
working on this post was promoted. That promotion was given due to the
superannuation of a Chief Clerk. With the result, Shri S.S. Gangapurkar was
promoted as a Chief Clerk and so also Shri V.B. Patil who was the junior most
employee was promoted as a Junior Clerk w.e.f. 1.11.2000. It was, therefore,
that the post had fallen vacant. It was thus a clear vacancy. The advertisement
clarified that the post was reserved for the OBC category. Also, it was clearly
mentioned in the advertisement that the preference was given to the candidates
who were registered with the employment exchange, Maharashtra. Accordingly, the
interviews were held on 30.12.2000 and the appellant herein on the basis of his
experience in the clerical field and qualifications was selected out of
approximately 9 candidates who appeared for the interview.
4. The appointment order came to be issued by the respondent no. 4 School on
31.12.2000. The Management then sent the proposal to the Education Officer for
approval of the appointment of the appellant along with a resolution to that
effect. This was done on 7.2.2001. The respondent no. 2, after considering all
the facts, accorded the approval to the appointment of the appellant as a
Junior Clerk on 17.3.2001. This approval was granted w.e.f. 1.11.2001. The
approval letter also suggests that this vacancy had fallen because of the
promotion of Shri Gangapurkar and Shri V.B. Patil. However, the respondent No.2
again issued a letter dated 30.5.2002 stating that the appointment was not in
accordance with the rules and hence the approval granted by the department was
being cancelled. Very significantly, before this abrupt cancellation, the
department did not give any hearing either to the petitioner or to the
management.
5. A representation was made against this letter by the appellant to the
management. The respondent management also personally approached and requested
the department to give details about the reasons for the abrupt action of
cancellation of the approval. The respondent No.4 also wrote a letter dated
22.6.2002 to the Education Officer requesting to give details or reasons for
the cancellation of appointment. The respondent no.2, however, chose to keep
mum. The appellant, therefore, approached Aurangabad Bench of the Bombay High
Court by way of a writ petition.
6. It is for the first time that before the High Court that a reply came to
be filed by Respondent Nos. 1 and 2 wherein they justified their order was an
outcome of the Government Circular No. V.G.T-1000/PK 13/2000/Finance
Bill-19/Dt.26th February, 1999 issued on Ist March, 2000.
7. Relying upon the aforementioned resolution dated 1.3.2000 whereby the
Government had imposed ban on the recruitment on the posts which have fallen
vacant on account of retirement, voluntary retirement, resignation or death of
incumbent, it was justified by the Government that the post on which the
petitioner was appointed and become vacant on 31.10.2000 on account of the
retirement of one Shri A.P. Mahajan, the then Chief Accountant working in the
school and therefore it was contrary to the Government Resolution. It was on
this ground alone that the writ petition was dismissed and even the review
petition was failed, as has been stated earlier and that is how the appellant
is before us.
8. Learned counsel appearing on behalf of the appellant firstly urged that
the judgment of the High Court was erroneous inasmuch as the High Court had
failed to take into account the true spirit of the Government Resolution dated
1.3.2000 as also the subsequent Government Resolution dated 29.6.2000. It was
urged before us that firstly the ban effected by the Government Resolution
dated 1.3.2000 did not apply to the posts which were fallen vacant due to
promotion. Relying on the language of the said Resolution, the learned counsel
contended that the ban related to the posts which had fallen vacant on account
of retirement, voluntary retirement, resignation or death of an employee. It is
tried to be suggested that the present post had fallen vacant on account of
promotion of Shri S.S. Gangapurkar to the post of Chief Clerk and the promotion
of Shri V.B.
Patil to the post of Junior Clerk and that is how the post of Shri V.B.
Patil had fallen vacant. It was pointed out that this situation is clear from
the order passed by the Education Officer (Middle), Zilla Parishad, Jalgaon
dated 17.3.2001 wherefrom it was clear that Shri Gangapurkar was promoted as a
Chief Clerk on 1.11.2000, Shri Patil who was already serving in the Institute
was also promoted from that date, while the appointment of appellant was
approved with effect from 1.11.2001.
Secondly, it was contended that this Resolution was not applicable to the
reserved posts. For this the learned counsel relied on the Government
Resolution dated 29.6.2000 and more particularly paragraph 7 thereof.
Lastly it was contended that the order passed by the Education Officer was
behind the back of the appellant or the Management and without giving any
opportunity of hearing to them. It was contended that the abrupt withdrawal of
the approval could not have been ordered unless an opportunity of hearing was
provided to the appellant as also the President of the Managing Committee and
the Headmistress thereof through whom the proposal of approval was sent .
9. As against this the learned counsel appearing on behalf of respondents 1
and 2 contended that the High Court had rightly dismissed the writ petition
since the initial appointment itself was in total derogation of the ban created
by Government Resolution dated 1.3.2000. It was reiterated that by the
subsequent Government Resolution dated 29.6.2000, though the Government had
relaxed the condition for recruitment of the vacant posts reserved for backward
classes as also the posts reserved for the project affected persons and the
appointments on compassionate grounds, the appellant was not appointed on a
post meant for the backward classes as it was clear from the advertisement that
even the persons from open category could have applied for the same. Learned
counsel invited our attention to the advertisement issued with regard to the
post and pointed out that in the advertisement itself it was clarified that the
persons belonging to the OBC or open could have applied for the post. It was
then reiterated that there were only two posts sanctioned in the reserved
category and one of them was filled in by Pandit Budha Tayade, while the
appellant was working on the other post. It was, therefore, reiterated that
since the 50% reservation was already done by appointing Pandit Budha Tayade
from SC category, the remaining post was meant only for the open category and
it could not be said that it was reserved for the backward classes. Lastly it
was contended that the question of natural justice could not have been raised
as the approval was erroneously granted by the second respondent and the
initial appointment itself was illegal or invalid.
10. We have considered the contentions in the light of the documents
produced before us.
11. Taking the last point first, it was obvious that the order impugned in
the writ petition withdrawing the approval was passed abruptly and it came as a
bott from the blue to the appellant. The said approval was granted on 17.3.2001
which clearly shows that the approval was granted for three persons, namely,
Shri S.S. Gangapurkar, who was promoted to the post of Chief Clerk w.e.f.
1.11.2000, Shri V.B. Patil who was promoted to the post of Junior Clerk w.e.f.
1.11.2000 and the appellant who was appointed on the post of Junior Clerk
w.e.f. 1.11.2001. The communication clearly suggests that the approval was
granted to all the three w.e.f. 1.11.2001.
On this basis it is not clear as to how the second respondent all of a
sudden chose to withdraw the approval by its communication dated 30.5.2002. It
is really strange that it should have dawned on the second respondent that the
approval granted earlier was wrongly given only after 17 months. It was not as
if the appointment was made keeping the second respondent in dark about it. The
second respondent was informed by the letter dated 7.2.2001 about the
advertisement given as also the appointment made. Along with this communication
dated 7.2.2001, the Managing Committee had sent the proposal in the proper form
and the other papers regarding the whole selection process starting from the
advertisement to the list of employees. This also included a copy of the roster
which would have given the complete idea to the second respondent about the
nature of the post as also the manner in which the appellant came to be
selected. In pursuance of the above communication the approval came to be
granted by the second respondent by its order dated 17.3.2000. Therefore, the
action taken after about 17 months on 30.5.2002 of withdrawing the approval
appears to be high handed. The only reason given in the communication dated
30.5.2002 is that the appointment made on 17.3.2001 is unlawful and is
completely against the settled position of law and, therefore, it stood
cancelled. In our opinion this is a totally incorrect action on the part of the
authorities. No reasons have been given in this order. Very strangely even the
subsequent letters sent on behalf of the appellant and the Managing Committee
of the school were also not replied to nor were the reasons informed. We
totally disapprove of this abrupt action and that too without hearing the
petitioner and further not giving the reasons for the same.
12. It is, for the first time, in the writ petition when the reply affidavit
was filed by one Rawan S/o Shenphadu Shirsath, Deputy Education Officer, Zila
Parishad, Jalgaon that the reasons came to be informed. In this counter
affidavit the said Deputy Education Officer, Zila Parishad, Jalgaon took the
position that the appointment initially made was in breach of the circular
dated 1.3.2002 and, therefore, the second respondent to the writ petition had
cancelled the said approval.
13. It is further reiterated in this counter affidavit that by the
subsequent Resolution dated 29.6.2000, the Government had relaxed the condition
for the recruitment of the vacant posts to the extent of the backlog and the
posts reserved for project affected persons and the appointment on
compassionate grounds. It was stated that the post of the appellant did not
fall under any of these categories. For this the reliance was placed on the
advertisement in which it was mentioned that the posts were meant for OBC/open.
14. There can be no doubt that by the circular dated 1.3.2000 a ban was
created for filling up any vacancy which is created after 1.3.2000 due to
retirement, voluntary retirement, resignation or death. It is further provided
in this circular that in case of urgency for filling up of the posts, a
proposal should be submitted before the Review Committee consisting of as many
as five officers for its decision. It is then provided that if the decision of
the Review Committee is not acceptable, then the further proposal should be
submitted before the Secretary Committee headed by the Chief
Secretary. However, the next Government Resolution dated 29.6.2000 which came
on the heels of the aforementioned circular dated 1.3.2000 very specifically
provides that the said circular dated 1.3.2000 would stand relaxed and would
not apply to the posts for reducing the backlog of the backward classes or if
they were to be filled up by the project affected persons or the persons whose
appointment could be made on compassionate grounds. The relevant paragraph 7 of
the circular dated 29.6.2000 is as under:
If the posts lies vacant due to the above mentioned reason from
1.3.2000 and if such posts are to be filled up by way of special recruitment
campaign undertaken to reduce the backlog of the backward classes or if it is
to be filled up on the principle of project affected or compassionate grounds
then in such case the order of 1.3.2000 would not be applicable. It
further goes on to say that:
..even if these posts lie vacant for the period of more than 6 months,
still it wont get lapsed. Even if these posts are to be filled up for
reducing the backlog of the backward classes on the principle of project
affected or compassionate ground, then also it wont get lapsed. A joint
reading of these circulars dated 1.3.2000 and 29.6.2000 leave us in no doubt
that if the posts were meant for the backward classes, it would not have been
covered by the circular dated 1.3.2000.
15. However, the contention of the respondent appears to be that the present
post was not meant for the backward classes as the advertisement itself
suggests that the persons belonging to OBC/open could have applied for the said
post. Learned counsel appearing for the Government invited our attention to the
advertisement. According to the learned counsel the advertisement does suggest
that the persons belonging to the other backward classes/open could apply. It
is obvious that there was something wrong with the advertisement particularly
because there could not have been a situation where both the persons belonging
to OBC as well as persons belonging to open category could apply
simultaneously.
We do not think that is the import of advertisement. The advertisement has
been published in the following form:
Junior clerks are required for Nandinibai Wamanrao Girls School
Jalgaon, middle school, managed by Leva Education Union (Leave Boarding), Zilla
Peth Jalgaon for academic year 2000-2001.
S.No.Post Education Qualification Category 1. Junior Clerk Graduate, English, Marathi Typing Essential should be computer
trained OBC (Open Category) Preference will be given to candidates registered
in Employment Exchange, Maharashtra Government and with Social Welfare Officer
Class-I. Therefore, willing candidates are to be present at 11.00 hrs.
on 30.12.2000 at the following address with original certificates of
educational qualification and certificate of experience. We do not think
that the plain reading of this advertisement would convey that both the open
category as well as the OBC candidates could have applied. In our opinion it is
clearly suggested that the post was meant for OBC category. The words in the
bracket under letters OBC being Open group appear to be
either an error or a printers devil. Be that as it may, the fact remains
that the status of the appellant belonging to the OBC is not, however, in
challenge.
16. However, when the matter came up before this Court, counter affidavit
was filed by respondents 1 and 2. We would choose to reproduce the following
portion of the counter affidavit which is from internal page 2 of the counter:
It is submitted that at the relevant time when appointment of
petitioner was made by the respondent society, there were two posts sanctioned
for the respondent school. For these two posts:
1. Pandit Budha Tayade SC
2. Rajendra Vitthal Nemade OBC (Petitioner) were working. This fact clearly
shows that 50% reservation was already filled by the respondent no.3 society by
appointing Shri Pandit Budha Tayade (from SC category).
Hence the remaining post is clearly for open category.
As the post is for open category there is total ban for recruitment by
Government Resolution dated 1.3.2000 and 29.6.2000. Hence this deponent had not
made any false or misleading statement before the Honble High Court.
To say the least, we fail to follow anything relevant in this stand. In the
first place this position was not shown before the High Court in the counter
affidavit filed on behalf of the Government and the Education Department where
the language of the advertisement alone was relied upon. The name of Pandit
Budha Tayade is nowhere to be found in the record. We have already pointed out
that the three approvals which were given were for Shri S.S. Gangapurkar, Chief
Clerk, Shri V.B. Patil, Junior clerk and Shri R.V. Nemade, Junior Clerk. We
fail to follow wherefrom this additional name of Pandit Budha Tayade has and
can come. When the learned counsel appearing on behalf of the Government was
specifically asked this question, no light could be thrown by her over this
issue. We have, therefore, no hesitation in rejecting that stand. This is apart
from the fact that if the post was not meant for the OBC category there was no
necessity on the part of the Managing Committee to advertise the post as meant
for OBC category. The respondents 1 and 2 have not filed any document before us
suggesting that this post was not meant in the roster for an OBC candidate. The
copy of the roster of the school was already submitted by the School Management
at the time of seeking of the approval and it was in the wake of that roster
that the approval was granted.
17. Again the stand taken is as if two posts were advertised and one post
having been given to a SC category, the second post would remain for the open
category. This is not the correct position as here only one post was to be
filled as per Roster Point. When any post is to be filled up, it is filled up
according to the roster which roster is already prepared and approved by the
Education Department. Therefore, every such post would go only by the roster
and not by the weird calculation shown on behalf of the Government. We have,
therefore, no hesitation in rejecting the arguments on the part of the first
and second respondent. We also disapprove the action taken by the second respondent
in abruptly canceling the approval even without hearing the appellant or, as
the case may be, the Managing Committee.
18. We, however, do not accept the arguments that this post had become
available because of the promotion and, therefore, was not covered by circular
dated 1.3.2000. It cannot be forgotten that the post became available basically
on account of retirement of Chief Clerk and, therefore, consequent promotions
were effected. Thus the post did not become available only because of the promotions.
However, since we have disapproved of the action of abrupt withdrawal, the
appeal must succeed.
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