Full Judgment Text
2014:BHC-AS:1828-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 4257 OF 2013
Mr. Udaysing Jalamsing Valvi,
Age 37 years, Occu. Nil,
R/o. At Post Ghosale, Tal. Roha,
District Raigad. ….Petitioner
Vs.
1 The Secretary,
District Selection Committee,
Raigad Z.P., Alibagh,
District Raigad.
2 The Chief Executive Officer,
Raigad Z.P., Alibagh,
District Raigad. ….Respondents.
Ms. Vaishali K. Jagdale for the Petitioner.
Mr. C.G. Gavnekar for Respondent Nos. 1 and 2.
CORAM : ANOOP V. MOHTA AND
B.P. COLABAWALLA, JJ.
RESERVED ON : 08 JANUARY 2014.
PRONOUNCED ON : 22 JANUARY 2014.
ORAL JUDGMENT: (PER ANOOP V. MOHTA, J.)
Rule returnable forthwith.
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2 Heard finally, by consent of the parties.
3 The Petitioner's main prayer is to direct the Respondents to
appoint the Petitioner on the post of Senior Assistant (Accounts)
under Scheduled Tribe reserved category, as by communication dated
2 November 2012, the Respondents rejected the representation and
claim of the Petitioner, though being waiting list candidate No.1 and
as the post was vacant, as the appointed candidate unable to join the
post, as unable to furnish the caste certificate.
4 Respondent No.1 issued advertisement on 1 September
2011, for the post of Senior Assistant (Accounts) out of which one
post was reserved for Scheduled Tribe category (for short, ST
category). As two candidates appeared under the ST category, after
written and oral examination, in October 2011, a list was published,
in which the name of one Mr. Pritam Hiraji Surekar shown as selected
candidate. The Petitioner was shown in the waiting list at Serial No.1,
the remaining candidate.
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5 Mr. Surekar could not submit his caste validity certificate
despite of three months extension to submit the same. Therefore, the
Petitioner made a representation on 30 March 2012 to consider his
case being eligible and qualified and as also having caste validity
certificate, validated by the Caste Scrutiny Committee. The
Respondents, instead of appointing the Petitioner, issued another
advertisement on 15 April 2012, but not filled the post in question of
Senior Assistant (Accounts) under ST Category. The Petitioner,
therefore, submitted another representation on 22 May 2012, and
again demanded to appoint him being eligible for the vacant post.
Respondent No.2 could not take decision, as six months period was
not over, but without communicating anything adverse, representation
dated 22 May 2012 was kept pending. Another representation was
made by the Petitioner on 23 July 2012.
6 On 8 August 2012, the caste of Mr. Surekar was
invalidated by the Scrutiny Committee, Konkan Division, Thane.
Therefore, on 15 September 2012/ 12 October 2012, the Petitioner
demanded the appointment. Respondent No.2 by order dated 2
November 2012, for the first time communicated that the list was
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lapsed in November 2012 itself and therefore, he could not be
appointed.
7 The Petitioner made other representations on 5 December
2012 and 7 December 2013, but in vain. Respondent No.1, without
considering the above issue, published a fresh advertisement on 11
April 2013 for the post in question. The Petitioner, therefore, filed the
present Petition on 29 April 2013, as the post is still vacant. This
Court, on 3 September 2013, recorded that appointments made to the
post subject to further orders which may be passed in the Petition.
8 Respondent Nos. 1 and 2 filed their reply affidavit on 17
July 2013 and supported their decision. They relied Clause9 of the
Government Circular/Decision dated 19 October 2007. There is no
dispute that the candidate who was appointed/selected could not
submit the certificate inspite of opportunity/time given, apart from the
fact that he never joined the post. The period of six months, even if
any, for getting the caste certificate validated, in no way, in the present
facts and circumstances, assist the Respondents to deny the right of
the Petitioner, who was otherwise eligible in view of the fact that the
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post was vacant during the said period of one year. The Petitioner
made innumerable representations, mentioned above. The timely
decision within a period of one year if taken by the Respondents, the
Petitioner being eligible at serial No.1 waiting list candidate for the
post, could have been appointed. They failed to do so. The
advertisement in question therefore, for the next year for the same
post and/or after one year for the same post, in our view, is in no way
sufficient reason to deny the established right of the Petitioner in view
of above admitted facts on record.
9 The Government Circular in question so referred and read,
just cannot be read to mean and/or permit the Respondents to deny
the claim and/or deny the appointment, though post is vacant in that
period of one year. The Respondents themselves failed to take action
by not appointing the Petitioner and they kept the post vacant for
undisclosed reason and/or for the reason, which in our view is not
sufficient to deny the crystalized rights of the Petitioner for the post in
question, as the appointed candidate failed to join the post within the
prescribed period.
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10 Clause9, in our view, cannot be read to mean that the
person though appointed as per the list so prepared, if failed to
appear, no other person can be appointed on the post within that year.
In our view, the appointed candidate if failed to appear within
reasonable time and in the present case, never appeared for want of
caste certificate and as the Petitioner being the next eligible candidate
having validity certificate, ought to have been appointed in that year
itself. The communication therefore, so given and thereby rejected
the claim of the Petitioner shows nonapplication of mind to the facts,
as well as, to the Government Circular itself. The Respondents cannot
be permitted to deny the rights of the Petitioner, as in our view
crystalized as referred above, merely because the Respondents failed
to take action within the prescribed period of one year. We are
inclined to observe, in the present facts and circumstances, that the
Respondents ought to have appointed the Petitioner on the post of
Senior Assistant (Accounts) once Mr. Surekar's caste certificate itself
was invalidated. They themselves never rejected the case of the
Petitioner within one year, on the contrary asked to wait for some
more time. Their inability to take decision, as they were awaiting for
Mr. Surekar to join and submit the caste certificate, but once the caste
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certificate itself was invalidated of Mr. Surekar, there was no question
to keep the post vacant, as done by the Respondents. Therefore, the
Respondents' failure to appoint the Petitioner, within one year though
post was vacant, in our view, is unacceptable situation. The
Respondents cannot act arbitrarily, by not appointing the candidate by
not following their own Circular within the prescribed period of one
year. The submission of expiry of one year or lapse of waiting list is
also unacceptable. Once the Petitioner falls within the ambit of zone
of consideration and eligible even otherwise, the inaction cannot be
read against the Petitioner to deny his right to be appointed on the
vacant post.
11 Resultantly, the following order
ORDER
1) The Petition is allowed in terms of prayer clauses
(a) and (b), which read as under:
“(a) By a suitable order/direction, this Hon'ble
High Court may be pleased to quash and set
aside the impugned communication dated
2.11.2012 passed by the Respondent No.2,
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forthwith.
b) By a suitable order/direction, this Hon'ble
High Court may be pleased to direct the
Respondents to appoint the Petitioner on the
post of Senior Assistant (Accounts) under
Scheduled Tribe reserved category, forthwith,
with all other consequential service benefits.”
2) There shall be no order as to costs.
( B.P. COLABAWALLA, J.) (ANOOP V. MOHTA, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 4257 OF 2013
Mr. Udaysing Jalamsing Valvi,
Age 37 years, Occu. Nil,
R/o. At Post Ghosale, Tal. Roha,
District Raigad. ….Petitioner
Vs.
1 The Secretary,
District Selection Committee,
Raigad Z.P., Alibagh,
District Raigad.
2 The Chief Executive Officer,
Raigad Z.P., Alibagh,
District Raigad. ….Respondents.
Ms. Vaishali K. Jagdale for the Petitioner.
Mr. C.G. Gavnekar for Respondent Nos. 1 and 2.
CORAM : ANOOP V. MOHTA AND
B.P. COLABAWALLA, JJ.
RESERVED ON : 08 JANUARY 2014.
PRONOUNCED ON : 22 JANUARY 2014.
ORAL JUDGMENT: (PER ANOOP V. MOHTA, J.)
Rule returnable forthwith.
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2 Heard finally, by consent of the parties.
3 The Petitioner's main prayer is to direct the Respondents to
appoint the Petitioner on the post of Senior Assistant (Accounts)
under Scheduled Tribe reserved category, as by communication dated
2 November 2012, the Respondents rejected the representation and
claim of the Petitioner, though being waiting list candidate No.1 and
as the post was vacant, as the appointed candidate unable to join the
post, as unable to furnish the caste certificate.
4 Respondent No.1 issued advertisement on 1 September
2011, for the post of Senior Assistant (Accounts) out of which one
post was reserved for Scheduled Tribe category (for short, ST
category). As two candidates appeared under the ST category, after
written and oral examination, in October 2011, a list was published,
in which the name of one Mr. Pritam Hiraji Surekar shown as selected
candidate. The Petitioner was shown in the waiting list at Serial No.1,
the remaining candidate.
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5 Mr. Surekar could not submit his caste validity certificate
despite of three months extension to submit the same. Therefore, the
Petitioner made a representation on 30 March 2012 to consider his
case being eligible and qualified and as also having caste validity
certificate, validated by the Caste Scrutiny Committee. The
Respondents, instead of appointing the Petitioner, issued another
advertisement on 15 April 2012, but not filled the post in question of
Senior Assistant (Accounts) under ST Category. The Petitioner,
therefore, submitted another representation on 22 May 2012, and
again demanded to appoint him being eligible for the vacant post.
Respondent No.2 could not take decision, as six months period was
not over, but without communicating anything adverse, representation
dated 22 May 2012 was kept pending. Another representation was
made by the Petitioner on 23 July 2012.
6 On 8 August 2012, the caste of Mr. Surekar was
invalidated by the Scrutiny Committee, Konkan Division, Thane.
Therefore, on 15 September 2012/ 12 October 2012, the Petitioner
demanded the appointment. Respondent No.2 by order dated 2
November 2012, for the first time communicated that the list was
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lapsed in November 2012 itself and therefore, he could not be
appointed.
7 The Petitioner made other representations on 5 December
2012 and 7 December 2013, but in vain. Respondent No.1, without
considering the above issue, published a fresh advertisement on 11
April 2013 for the post in question. The Petitioner, therefore, filed the
present Petition on 29 April 2013, as the post is still vacant. This
Court, on 3 September 2013, recorded that appointments made to the
post subject to further orders which may be passed in the Petition.
8 Respondent Nos. 1 and 2 filed their reply affidavit on 17
July 2013 and supported their decision. They relied Clause9 of the
Government Circular/Decision dated 19 October 2007. There is no
dispute that the candidate who was appointed/selected could not
submit the certificate inspite of opportunity/time given, apart from the
fact that he never joined the post. The period of six months, even if
any, for getting the caste certificate validated, in no way, in the present
facts and circumstances, assist the Respondents to deny the right of
the Petitioner, who was otherwise eligible in view of the fact that the
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post was vacant during the said period of one year. The Petitioner
made innumerable representations, mentioned above. The timely
decision within a period of one year if taken by the Respondents, the
Petitioner being eligible at serial No.1 waiting list candidate for the
post, could have been appointed. They failed to do so. The
advertisement in question therefore, for the next year for the same
post and/or after one year for the same post, in our view, is in no way
sufficient reason to deny the established right of the Petitioner in view
of above admitted facts on record.
9 The Government Circular in question so referred and read,
just cannot be read to mean and/or permit the Respondents to deny
the claim and/or deny the appointment, though post is vacant in that
period of one year. The Respondents themselves failed to take action
by not appointing the Petitioner and they kept the post vacant for
undisclosed reason and/or for the reason, which in our view is not
sufficient to deny the crystalized rights of the Petitioner for the post in
question, as the appointed candidate failed to join the post within the
prescribed period.
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10 Clause9, in our view, cannot be read to mean that the
person though appointed as per the list so prepared, if failed to
appear, no other person can be appointed on the post within that year.
In our view, the appointed candidate if failed to appear within
reasonable time and in the present case, never appeared for want of
caste certificate and as the Petitioner being the next eligible candidate
having validity certificate, ought to have been appointed in that year
itself. The communication therefore, so given and thereby rejected
the claim of the Petitioner shows nonapplication of mind to the facts,
as well as, to the Government Circular itself. The Respondents cannot
be permitted to deny the rights of the Petitioner, as in our view
crystalized as referred above, merely because the Respondents failed
to take action within the prescribed period of one year. We are
inclined to observe, in the present facts and circumstances, that the
Respondents ought to have appointed the Petitioner on the post of
Senior Assistant (Accounts) once Mr. Surekar's caste certificate itself
was invalidated. They themselves never rejected the case of the
Petitioner within one year, on the contrary asked to wait for some
more time. Their inability to take decision, as they were awaiting for
Mr. Surekar to join and submit the caste certificate, but once the caste
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certificate itself was invalidated of Mr. Surekar, there was no question
to keep the post vacant, as done by the Respondents. Therefore, the
Respondents' failure to appoint the Petitioner, within one year though
post was vacant, in our view, is unacceptable situation. The
Respondents cannot act arbitrarily, by not appointing the candidate by
not following their own Circular within the prescribed period of one
year. The submission of expiry of one year or lapse of waiting list is
also unacceptable. Once the Petitioner falls within the ambit of zone
of consideration and eligible even otherwise, the inaction cannot be
read against the Petitioner to deny his right to be appointed on the
vacant post.
11 Resultantly, the following order
ORDER
1) The Petition is allowed in terms of prayer clauses
(a) and (b), which read as under:
“(a) By a suitable order/direction, this Hon'ble
High Court may be pleased to quash and set
aside the impugned communication dated
2.11.2012 passed by the Respondent No.2,
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forthwith.
b) By a suitable order/direction, this Hon'ble
High Court may be pleased to direct the
Respondents to appoint the Petitioner on the
post of Senior Assistant (Accounts) under
Scheduled Tribe reserved category, forthwith,
with all other consequential service benefits.”
2) There shall be no order as to costs.
( B.P. COLABAWALLA, J.) (ANOOP V. MOHTA, J.)
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