Bombay High Court
Manoj Bhaskarao Karnik vs City Of Nagpur Corporation And Anr. on 18 December, 2002
Equivalent citations: 2003(4)MHLJ17
Author: A.P. Shah
Bench: A.P. Shah, R.K. Batta
JUDGMENT A.P. Shah, J.
1. Rule is issued on all the petitions. Respondents waive service. By consent, Rule is made returnable forthwith.
2. This group of writ petitions under Article 226 involve common questions of law and facts and can be disposed of by this common judgment. Briefly the facts giving rise to these petitions are that the 1st respondent - City of Nagpur Corporation advertised in "Daily Navbharat" vacancies in various posts under the Corporation on 1-9-1993. In pursuance of the said advertisement published by the Corporation several candidates applied for different posts and they were called for interview along with original testimonials. The advertisement was issued for 161 posts but it contemplated that there would be likely change in the number of posts. While selection process was in progress one Bhalchandra Joshi filed Writ Petition No. 3498 of 1993 before this Court challenging the process. By order dated 17-12-1993 this court restrained the Corporation from making any appointment pursuant to the said advertisement dated 1-9-1993. The interim order came to be vacated on 7-6-1996 but the appointments were made subject to the result of the petition. As a result of the interim order granted by this court, no appointment could be made during the period from 1993 to 1996 and during this period, further vacancies arose in respect of various posts. The selection committee constituted by the Corporation prepared Select List/ Waiting List. This Select List/Waiting List was approved by the Corporation in its General Body vide Resolution No. 77 which was to the effect that the vacancies upto the date of Resolution and which may arise in future, may be filled in from the said List. In all 252 candidates were appointed. The appointment letters issued to the candidates mentioned that their appointment was on temporary basis subject to the decision of this court. By order dated 7-3-2001 this court directed the Municipal Commissioner to examine appointments which are not made in regular manner, by calling applications through advertisements, conducting examinations, interviews and if he is prima facie satisfied, identify such appointments and take appropriate steps. It was further directed that the respondent Corporation shall not regularize any such appointments made illegally and through back door procedure. Accordingly enquiry was made by the Additional Municipal Commissioner and the report of the enquiry was submitted to this court. By order dated 30-1-2002 this court disposed of the writ petition observing that the grievances of the petitioners were sought to be remedied by directing an enquiry into the allegations by the Commissioner. The Court accepted the enquiry report and directed the Commissioner to take appropriate action as per the conclusions mentioned in the report within 3 months from the date of the order. On 4-2-2002 the Corporation terminated the services of 106 out of 252 candidates. The letters of termination where issued in identical terms stating that the appointment of the candidates were subject to the result of Writ Petition No. 3498 of 1993 and since the appointments were held to be illegal by this court the same were cancelled. Some candidates filed applications for review of the order dated 30-1-2002. The review applications were disposed of by a common order dated 14-3-2002. The court observed that inquiry was ordered in the correctness or otherwise in the matter of appointment and the allegations of corruption and the enquiry was conducted by the Municipal Corporation through its Additional Commissioner and based upon the said report order dated 30-1-2002 was passed. It was observed that the report was made by the Commissioner after due inquiry and diligent scrutiny of record and thereafter the Court has directed the Municipal Corporation to take appropriate action in accordance with the report. The court further observed that if any errors are committed in execution of that order or any errors are committed in implementation of report, it shall always be and can only be part of fresh cause of action and cannot be ground for review of an order made earlier on appreciation of facts and law on the point. The court made it clear that rejection of review applications does not in any manner take away the rights which the review petitioners may have as substantive cause of action so far, against the action taken for implementation of the report is concerned. Special Leave Petitions filed before the Supreme Court were allowed to be withdrawn to adopt appropriate remedy according to law. On this factual backgrounds the present writ petitions are filed seeking to challenge the enquiry in the matter of removal/dismissal of the petitioners from service and further seeking direction to the Corporation to reinstate them in service.
3. Before we advert to the submissions made at the Bar we would briefly refer to the report submitted by the Additional Municipal Commissioner. Out of 252 candidates, 16 candidates were found to be disqualified; 5 candidates were selected and appointed even though they neither applied nor were interviewed; 5 candidates who had applied, were selected even though they were not actually interviewed and 6 candidates whose applications were rejected, were interviewed, selected and appointed. Out of these 16 candidates, 2 are relations of the members of the Selection Committee. Around 88 candidates were held to be disqualified solely on the ground that the appointments made were in excess of the posts advertised and no justification for those appointments was given. We may mention that such excess appointments are 98, but 10 out of 98 candidates are found disqualified on other grounds as indicated above. The Additional Municipal Commissioner also noticed certain other irregularities in the process of selection but are not made basis of the present action as that would result in invalidation of the entire selection process and termination of all 252 candidates.
4. The learned counsel appearing for the petitioners strenuously contended that the order dated 30-1-2002 passed by this court did not in any manner direct dismissal/removal of petitioners from service. At any rate, this court did not direct the Corporation not to follow the provisions of law and principles of natural justice which, in fact were required to be followed before removing petitioners from service. This court directed the Municipal Commissioner to submit report after due scrutiny into the allegations of corruptions and after accepting the report, directed the Municipal Commissioner to take appropriate action in accordance with the report as per the conclusions mentioned in the report. However, this court did not direct the Commissioner to straightaway dismiss/remove the petitioners from service without observing due process of law. Learned counsel submitted that the petitioners were not merely appointed pursuant to their selection by the Selection Committee, but they worked nearly for 4 and half years in the Corporation pursuant to their appointment. Therefore, the action of the Corporation in terminating their services without giving them opportunity of hearing is per-se violative of the principles of natural justice.
5. Our attention was drawn to the decision of the Supreme Court in A.M.S. Sushanth and Ors. v. M. Sujata and Ors., . In that case, writ petition was filed in the High Court challenging the selection and various appointments made in the Kerala State Sericulture Co-operative Federation Limited. During the pendency of the writ petition the Registrar of Co-operative Societies ordered an inquiry under Section 65 of the Kerala Co-operative Societies Act, 1969. The Joint Secretary to the Government, Industries Department, Government of Kerala submitted a report. In that report it was inter alia stated that selection and appointments had been made in the said Federation in violation of statutory provisions and the rules. The High Court on the basis of said report allowed the writ petition, inter alia, setting aside not only the resolution of the Board and the notification, but it also declared all appointments made as illegal. The Supreme Court noted that none of the persons who were selected and whose appointments were set aside by the High Court had been impleaded as a party- respondent. It was also noted that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer and it was confined to that post alone. The court held that the principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. The court observed that the High Court ought to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not.
6. Our attention was also drawn to the Supreme Court decision in Benny T. D, and Ors. v. Registrar of Co-operative Societies and Anr., where the Court while holding that persons to be adversely affected ought to have been given opportunity of hearing observed :
"The Division Bench was conscious of the fact that the persons to be adversely affected by the impugned decision had not been given an opportunity inasmuch as the relevant documents had not been put to them nor even to the Bank who made recruitment but yet brushed aside the principle of natural justice and did not focus its attention to the same and on the other hand came to the conclusion that the process of selection got vitiated on account of alleged irregularity and illegality. In our considered opinion, the Division Bench patently committed an error in relying upon the report of the Commission and in recording a finding that irregularities have been committed in the selection notwithstanding the fact that the said report had not been made available to the Bank or to the affected parties. That apart, as stated earlier in the notice that was issued by the Registrar, there were no particulars given and on such vague assertions made, it was not permissible to record a conclusion that there has been any irregularity in the process of selection. The said conclusion of the Division Bench must accordingly be set aside".
7. In the instant case it is an admitted position that copy of the enquiry report was not furnished to the affected parties. No prior notice was given nor any opportunity of hearing was granted. The Corporation proceeded to terminate the services of the candidates solely on the basis of the order passed by this court. In our opinion the impugned action of the Corporation is clearly vitiated due to non observance of the principles of natural justice. The learned counsel for the Corporation, however, contended that the candidates who found place in the Select List do not acquire indefeasible right to be appointed to such posts. The learned counsel urged that since the appointments were made purely on temporary basis subject to the decision of this Court and since the report of the Additional Municipal Commissioner was accepted by this court, the Corporation was justified in terminating the services of the petitioners. In support of his submission the learned counsel relied upon the decision of the Supreme Court in Union Territory of Chandigarh v. Dilbagh Singh and Ors., . There cannot be any dispute that merely because the names of the candidates are included in the Select List they do not acquire vested right to be appointed in such posts. At the same time it does not mean that the authorities get licence to act in arbitrary manner. In Dilbagh Singh's case (supra) relied upon by the learned counsel, the Supreme Court specifically observed that such decision has to be taken bona fide for appropriate reasons and not arbitrarily. In the instant case, names of the candidates were not merely included in the Select List but the said candidates were appointed and had worked for nearly 4 and half years. In these circumstances, in our opinion it is not possible to sustain the impugned action of the Corporation.
8. We may mention that both sides argued extensively on the issue of excess appointments. The submission of the learned counsel for the Corporation was that the posts advertised were only 161 but appointments were made far in excess of the number of posts advertised. He submitted that any appointment made in excess of the posts advertised is patently illegal. He placed heavy reliance on the decisions of the Supreme Court in State of Bihar and Anr. v. Madan Mohan Singh and Ors., (1994) 3 SCC 308, Ashok Kumar and Ors v. Chairman, Banking Service Recruitment Board and Ors., and Surinder Singh and Ors. v. State of Haryana and Ors., (2001) HI CLR 225. This was countered by the learned counsel for the petitioners contending inter alia that the advertisement clearly laid down that number of posts were likely to be changed. It was also contended that the process of selection though started in 1993, appointments were made only in 1997 after the stay was vacated by this court and under the peculiar circumstances the decision of the Corporation to fill up all the vacancies till then could not faulted with. The learned counsel for the petitioners drew our attention to the decision of the Supreme Court in Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors., (2002) 4 SCALE 528, where the Court observed that clubbing of Select Lists of earlier years cannot be treated to be void and fatal, but it is curable. Our attention was also brought to the decision of the Supreme Court in All India SC and ST Employees Association and Anr. v. A. Arthur Jeen and Ors., where the Court held that the objection to non notification of the increase in the vacancies from 330 to 917 is untenable in view of the changed circumstances. In that case the process of selection was protracted for a long time and the candidates were made to appear for interview twice. The court held that the time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. It was observed that enormous money and man hours have been spent in completing the process of selection in preparing the panel of selected candidates. Therefore there was no justification for CAT to quash the entire panel of selected candidates. We do not wish to express any opinion on this aspect of excess appointments as it would be for the Municipal Commissioner to decide whether such excess appointments can be regularized in accordance with the rules and regulations. It is seen from the report of the Additional Municipal Commissioner that the issue of excess appointments has been dealt with in a cursory manner without taking into consideration the relevant material.
9. In our opinion, in the facts and circumstances of the case, petitioners deserve at least a right of hearing by the Municipal Commissioner. Therefore we quash and set aside the impugned orders of termination. We direct the Municipal Commissioner to grant opportunity of hearing to the petitioners and other similarly situated candidates. The petitioners and such other candidates are free to make written representation to the Municipal Commissioner, if so advised. The Municipal Commissioner shall consider the representations and submissions on their own merits and pass appropriate orders in accordance with law within a period of 3 months. It is made clear that till the enquiry is complete and final decision is taken by the Municipal Commissioner, petitioners need not be reinstated in service. In case the Commissioner decides to retain the services of the petitioners or any of them, they would be forthwith reinstated and would be entitled to continuity of service.
Rule is made absolute in terms of the order mentioned above.
Certified copy expedited.