Bombay High Court
Sambhaji Raje Sadashiv Dahatonde vs The State Of Maharashtra on 5 January, 2011
Author: S.S. Shinde
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.8769 OF 2010
1. Sambhaji Raje Sadashiv Dahatonde,
age 40 years, occu. Social Work,
r/o Chanda, Tq. Newasa,
District Ahmednagar.
2. Sayaram s/o Tukaram Bankar,
age 42 years, occu. Agril. & Business,
r/o Shani Shignapur, Tq. Newasa,
District Ahmednagar. ...PETITIONERS.
VERSUS
1. The State of Maharashtra.
Through Ministry of Law and
Judiciary, Mantralaya,
Mumbai-32.
2. The Charity Commissioner,
Maharashtra State,
Mumbai.
3. The Joint Charity Commissioner,
Pune Division, Pune.
4. The Assistant Charity Commissioner,
Ahmednagar.
5. Shri Shaneshwar Devsthan,
Shignapur, Tq. Newasa,
District Ahmednagar,
through its President.
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6. Shri Dadasaheb Dhondiram Darandale,
age 40 years, occu. Agri.,
7. Shri Bapusaheb Baliram Dane,
age 37 years, occu. Agri.,
8. Shri Babasaheb Natha Darandale,
age 42 years, occu. Agri.,
9. Bapusaheb Shankar Shete,
age 51 years, occu. Agri.,
10. Suresh Baburao Bankar,
age 47 years, occu. Agri.,
11. Shivaji Annasaheb Darandale,
age 45 years, occu. Agri.,
12. Dagadu Kisan Shete,
age 58 years, occu. Agri.,
13. Nanasaheb Vitthal Bankar,
age 54 years, occu. Agri.,
14. Nivrutti Chandrabhan Shete,
age 60 years, occu. Agri.,
15. Raosaheb @ Sahebrao Tukaram Darandale,
age 62 years, occu. Agri.,
Resp.Nos.6 to 15 r/o Shignapur,
Tq. Newasa,
District Ahmednagar. ...RESPONDENTS.
...
Shri A.P. Bhandari, Advocate holding for,
Shri R.M. Pardeshi, Advocate for petitioners.
Smt. V.A. Shinde, A.G.P. for R.Nos.1 to 4.
Shri V.D. Sapkal, Advocate for R.Nos.5 to 15.
...
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CORAM: S.S. SHINDE,J.
RESERVED ON: 23rd DECEMBER, 2010.
PRONOUNCED ON : 5th JANUARY, 2011.
JUDGMENT:
1. Heard learned Counsel for the parties.
2. Rule. ig Rule is made returnable forthwith and by consent of parties, taken up for hearing.
3. The petitioners herein challenge the advertisement dated 15th September, 2010 published in Daily Kesari by the respondent No.5 trust for recruitment of certain employees. The petitioners also pray for directions restraining respondents No.6 to 15 from taking any policy decision, including recruitment over the Respondent No.5 trust. They also seek directions to respondent No.4 to conclude the Inquiry No. 28/2010 expeditiously, as also directions to respondents No.3 and 4 to take over the management of the trust till next body of trustees is selected. Besides the aforesaid main ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 4 prayers, the petitioners have made other prayers also.
4. It is the case of the petitioners that the respondent No.5 trust is registered in the year, 1963 and the scheme of the trust has been prepared and the same has been approved in the year, 1990. ig As per the scheme of the trust, the trustees are selected by the Assistant Charity Commissioner, and the body of trustees has a term of five years. In the year, 2005, the process for selection of trustees was initiated and respondents 6 to 15 have been appointed as trustees of the trust. The tenure of respondents 6 to 15 is due to lapse in the month of December, 2010.
It is the case of the petitioners that during the tenure of respondents 6 to 15, various illegalities have been committed such as theft from donation box etc. Though several news items were published in the newspapers and even the matter had reached legislative assembly, yet the ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 5 said employee who was involved in theft has been retained by the respondents for the reasons best known to them. Several illegalities have been committed in last five years by the respondents 6 to 15 while working as trustees. During the tenure of respondents 6 to 15, recruitment process has been initiated and various relatives of the trustees have been appointed.
ig The process of establishment of accommodation at Newasa for the devotees has been initiated and no permission has been obtained from respondents 2 to 4, no steps have been taken for establishment of the same.
The petitioners have also averred in the petition that the respondents 6 to 15 are involved in various illegalities and funds of the trust are not being utilized for fulfillment of the objectives of the trust.
5. It is the case of the petitioners that though the directions were issued to complete the inquiry prior to 30th April, 2010 by the Assistant ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 6 Charity Commissioner, the inquiry has not been completed. It is further case of the petitioners that respondents 6 to 15 have published an advertisement in Daily Kesari dated 15th September, 2010 for recruitment on certain posts and as per the said advertisement, the last date for submission of applications for various posts was 22nd September, 2010.
ig It is the case of the petitioners that the petitioner No.1 immediately made an application to the Assistant Charity Commissioner, thereby bringing to the notice of the said authority that the recruitment process initiated by the respondents 6 to 15 should be stopped and respondents 6 to 15 may be restrained from taking any policy decision, pending inquiry.
It is further case of the petitioners that the Assistant Charity Commissioner, instead of restraining the respondents 6 to 15 from taking any policy decision, simply called explanation from the President of the trust by issuing communication dated 15th September, 2010.
8. Since the Assistant Charity Commissioner has ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 7 not passed appropriate order restraining the respondents 6 to 15 from taking policy decision including recruitment process, this writ petition is filed by the petitioners.
7. According to the petitioners, they are the persons having interest in the affairs of Shri Shaneshwar Devsthan trust as the petitioners are residents of the locality where the temple is situated and the petitioners use to offer prayers in the said temple. The petitioner No.2 is resident of Shani Shignapur. Both the petitioners are beneficiaries of the temple and, therefore, they are interested in clean governance of the affairs of the said trust.
8. The learned Counsel for the petitioners submitted that the inquiry initiated in pursuance to the complaints filed by the petitioners is still pending with the respondent No.4, yet, during the pendency of said inquiry, the respondents No.6 to 15 have initiated the process of recruitment and no steps are taken by the ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 8 respondent no.4 to restrain the said recruitment process. He submits that the term of respondents 6 to 15 is due to lapse in the month of December, 2010, yet, with obvious motives, the recruitment process has been initiated. The inquiry proceedings filed by the petitioners have been registered as Inquiry No.28/2010. Yet, during the ig pendency of inquiry, there is no prohibitory order passed. The learned Counsel for the petitioners submitted that considering the nature of allegations, respondent No.4 ought to have completed the inquiry expeditiously and it is therefore, necessary to issue appropriate directions for speedy disposal of the inquiry.
He further submitted that the desperation shown by the respondents 6 to 15 shows that there is obvious intentions to misuse the powers and therefore, he prays for directions to respondents 3 and 4 to take over the management of the said trust.
The learned Counsel for the petitioners has placed on record the Notes of Arguments on behalf ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 9 of the petitioners, stating therein the factual matrix of the case, legal submissions etc. He submitted that as per the provisions of Section 41A of the Bombay Public Trust Act, the Charity Commissioner can issue directions to ensure that the trust is properly administered. The directions can also be given for protection of the property of trust.
ig He also submitted that as per the scheme of the trust, the Assistant Charity Commissioner, is the appointing authority of the trustees and the said authority can also remove the trustees if the case for removal is made out in view of Clause 9(6) of the Constitution of the Trust. Apart from that the appointing authority has the authority to remove the trustees. The Assistant Charity Commissioner, has also issued publication for appointment of new trustees, as the tenure of the respondents No.6 to 15 has elapsed.
While arguing about the locus of the petitioners, he submitted that petitioner No.1 is the original complainant, who offers prayer in ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 10 the temple. Petitioner No.2 is resident of Shingnapur. Both the petitioners are persons having interest in the affairs of the trust, as per section 2(10) of the Bombay Public Trust Act.
He relied on the judgment in the case of Subhash Trambakrao Inamdar Vs. Pandurang Savner, reported in 2004(Supp) BCR 502 in support of his submissionig that petitioners are persons having interest in the affairs of the trust. Relying on the written submissions and the grounds raised in the petition, the learned Counsel for petitioners prayed that the petition may be allowed. He also tried to distinguish the judgments cited on behalf of the respondents in the light of facts of the case at hand.
9. On the other hand, the learned Counsel for the respondents 5 to 15 submitted that the writ petition is not maintainable against the Public Charitable Trust because it is neither State not its instrumentality. The trust is not created under Statute. It is not governed by any Rules.
It is registered under the Public Trust Act and ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 11 governed by the Scheme framed by the Charity Commissioner. He further submitted that the petitioners have no locus because they are not personally aggrieved. The person who is aggrieved can be only participant in the selection process. He further submitted that the petition is not a public interest litigation as the Division ig Bench has already passed order saying that the matter lies to Single Judge.
In case of Hari Bansh Lal Vs. Sahodar Prasad Mahto and others, reported in 2010(6) ALL MR 447 (S.C.), it has been held that except in a case for a writ of `Quo Warranto', PIL in a service matter is not maintainable.
It is further submitted on behalf of the respondents that no injunction can be granted against the trustees till they are found guilty.
The learned Counsel for respondents 5 to 15 submitted that the petitioners have not mentioned as to under what provisions they approached the Assistant Charity Commissioner seeking the ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 12 relief. In absence of this, there is no quasi judicial order passed by the authority to enable this Court to consider the matter whether order is correct or not. No such order is under challenge before this Court as required under Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules. The allegations made in respect of relatives of the trustees working in the trust cannot be considered because they are not made parties to the petition and no relief is sought against them challenging their appointment. The learned Counsel for respondents 5 to 15 further submitted that the writ petition is filed with malafide intention.
All the complaints made by the petitioners are published in newspapers and those are used as annexure to the petition. In such circumstances, the present petition is abuse of process of law.
He, therefore, prayed for dismissal of the writ petition with costs.
The learned Counsel for respondents 5 to 15 argued that the petitioners have no locus standi ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 13 to challenge the advertisement published by the respondent No.5. The petition can be filed by two categories of persons - (1) aggrieved party;
(2) public interest petition. In the present case, the petitioners are not aggrieved parties because only the non appointee can assail the legality of the appointment procedure in view of the decision in B.Srinivasa Reddy vs. Karnataka Urban Water Supply Drainage Board Employees Association, reported in 2006(11) SCC 731(II).
The other category of petition is a public interest petition. So far as this aspect is concerned, the issue is settled by the Apex Court in case of Dr. Duryodhan Sahu and others Vs. Jitendra Kumar Mishra and others reported in (1998)7 SCC 273, wherein the Supreme Court held that if public interest litigations at the instance of strangers are allowed to be entertained by the Administrative Tribunal, the very object of speedy disposal of service matters would get defeated. It is further case of the respondents that as per the Scheme Clause 8 ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 14 clearly provides that the person who can be appointed as a trustee should be from Shanisingnapur village. The petitioner No.1 is from village Chanda. He can never be appointed as a trustee. The petitioners' case that several relatives of the trustees are appointed at Respondent No.5 trust cannot be a ground to seek injunction because there is no challenge to their appointment in the present petition or in different proceedings before this Court, and therefore, such allegations cannot be entertained. According to the learned Counsel for respondents 5 to 15, the inquiry was conducted in respect of the allegations and the report is placed at page 68 of the compilation and said report clearly shows that there is no substance in the allegation of the petitioners and all allegations are found to be incorrect.
It is further submitted the petitioners have not stated as to under which provision they have applied to the Assistant Charity Commissioner for taking action against the respondents 5 to 15.
The advertisement has been issued by the Manager, ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 15 Executive Officer and the President of the trust.
The Manager and the Executive Officer are not trustees appointed by the Assistant Charity Commissioner According to the learned Counsel for respondents 5 to 15, the writ petition is not maintainable. In support of his contention, the learned Counsel for respondents placed reliance on the judgment of the Supreme Court in the case of Girjesh Shrivastava & Ors. Vs. State of M.P. & Ors., reported in 2010(6) ALL MR 930. Relying on the written arguments, the learned Counsel for the respondents 5 to 15 would submit that the writ petition is devoid of any merits and the same deserves to be dismissed.
10. The learned A.G.P. appearing for respondents No.1 to 4 submitted that the appropriate steps are being taken for completing the inquiry No. 28/2010.
11. I have given due consideration to the rival submissions advanced on behalf of the petitioners and respondents. The preliminary objection is ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 16 raised by the learned Counsel for the respondents 5 to 15 that in absence of any order passed by the quasi judicial authority, the learned Single Bench of this Court cannot entertain this writ petition. As per the provisions of Rule 18(3) of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 (for short, the said Rules), if any order ig is passed by the quasi judicial authority then only this Court can entertain the writ petition.
At this juncture, it would be appropriate to reproduce the Rule 18(3) of Chapter XVII of the said Rules:
"18. Single Judge's powers to finally dispose of applications under Article 226 or
227.- Notwithstanding anything contained in Rules 1, 4 and 17 of this Chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of --
::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 17 (1) .... (2) .... (3) the decrees or the orders passed by any
Subordinate Court or by any quasi Judicial Authority in any suit or proceeding (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court and orders passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the Administrative Tribunals Act, 1985; and the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002."
12. Upon perusal of the Sub Rule (3) of Rule 18 of Chapter XVII of the said Rules, it appears that the decrees or orders passed by any subordinate Courts or by any quasi judicial authority in any suit or proceedings with certain exclusions, can be the subject matter of challenge before the Single Bench of this Court.
This writ petition was placed for hearing before the learned Division Bench on 28th ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 18 September, 2010, when the learned Division Bench passed the following order:
"1) Though the petition is couched in terms that it seeks writ of mandamus, in effect, it would reveal that the petitioner challenges order dated 15/9/2010 passed by learned Assistant Charity Commissioner, Ahmednagar on an application filed by the present petitioner which is annexed at Exh.I. Perusal of the said application reveals that the directions which are in the nature of the powers of the Assistant Charity Commissioner referable to under Section 41-A of the Bombay Public Trust Act were sought for.
2) In that view of the matter, it would be clear that the jurisdiction which was exercised by learned Assistant Charity Commissioner was exercised in a quasi judicial capacity, as such, order impugned would be referable to Clause 3 Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960. Petition would therefore, lie before learned Single Judge of this Court."
13. The Division Bench has observed in its order dated 28th September, 2010 that the petitioners ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 19 challenge the order dated 15th September, 2010 passed by the learned Assistant Charity Commissioner, Ahmednagar on an application filed by the petitioners annexed at Exh.I and, therefore, the petition will lie before learned Single Judge of this Court. Therefore, in view of the order of the Division Bench dated 28th September, 2010, and being Single Bench of this Court and to maintain judicial discipline, there is no option but to adjudicate this matter on merits. The another reason to entertain this writ petition is that the Assistant Charity Commissioner, Ahmednagar has failed to exercise the jurisdiction vested in him.
Therefore, in the light of the order passed by the Division Bench dated 28th September, 2010, and in the light of what is stated herein above, the preliminary objection raised by the learned Counsel for the respondents 5 to 15 about the maintainability of this petition before the Single Bench is required to be rejected.
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14. The main reason for filing this petition appears to be that the petitioner No.1 herein addressed a letter to the Assistant Charity Commissioner, Ahmednagar (Exh.I to the petition), in which the petitioner No.1 has raised grievance that in spite of specific directions of re-
inquiry i.e. Inquiry No.28/2010, the said inquiry has not been completed, though the term of the trustees - respondents 6 to 15 will come to an end by December, 2010. The main grievance was raised in the said letter that respondents 6 to 15 are likely to take major policy decisions, which would likely to affect interest of respondent No.5 trust and the devotees.
Therefore, the petitioners should be provided complete information regarding the proceedings of meeting dated 30th September, 2010. The respondents 6 to 15 should be restrained from carrying on recruitment process for appointment on various posts as per the advertisement dated 15.9.2010. If at all, there is exigency of recruiting certain persons, in that case, unless specific prior permission is taken from the ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 21 Assistant Charity Commissioner and the State Government, respondents 6 to 15 should not be allowed to carry out recruitment process. The respondents 6 to 15 may be restrained from taking any policy decision without prior permission of the Assistant Charity Commissioner or State Government. If any work is to be carried out, estimated ig to Rs.50,000/- or above, the respondents 6 to 15 may be compelled to take prior permission from respondents No.1 to 4. The petitioners' contention is that the Assistant Charity Commissioner, without issuing directions restraining the respondents 6 to 15, only called upon the President of the trust to submit explanation by letter dated 15.9.2010. Hence, the petitioners have approached this Court with apprehension that the respondents 6 to 15 would continue to take policy decisions and will carry out recruitment process, which may be adverse to the interest of the trust and therefore, prayed to restrain the respondents 6 to 15 from taking any policy decision and making recruitments for various posts as advertised in the advertisement ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 22 dated 15.9.2010.
15. The apprehension of the petitioners is that the term of the respondents 6 to 15 comes to an end by December, 2010, therefore, they are in hurry to take major decisions which are likely to adversely affect interest of the trust as well as devotees. According to the petitioners, the term of respondents 6 to 15 is only till end of December, 2010.
Upon appreciating aforesaid contentions of the petitioners, I am of the opinion that since term of five years of the trustees has come to an end by now and by way of ad interim relief granted by this Court on 1.10.2010, the respondents- trustees were directed not to issue order of appointment in pursuance of the advertisement dated 15th September, 2010, there is no need to issue any further directions as prayed by the petitioners, restraining the Respondents No.5 to 15 from taking any policy decision.
Admittedly, the term of the Respondents No.6 to ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 23 15 was for five years.
16. So far as another contention of the petitioners about the completion of Inquiry No. 28/2010 is concerned, without entering into the merits of the matter, the Assistant Charity Commissioner, Ahmednagar can be directed to inquire into ig the matter and take appropriate decision to complete Inquiry No.28/2010 within a stipulated period. However, as stated earlier, the said direction can be given without expressing any opinion on the merits of the inquiry pending before concerned authority. The parties will have to put forth their case before the appropriate authority, which is appointed to conduct and complete Inquiry No.28/2010.
Even otherwise, the Assistant Charity Commissioner, suo motu can make inquiry of any trust. Therefore, by giving mere direction to complete Inquiry No.28/2010, no party can have grievance as long as the points are left open on merits to be agitated before the concerned ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 24 authority conducting the inquiry No.28/2010.
17. So far as the main grievance of the petitioners that the advertisement dated 15.9.2010 issued by the respondents - trustees for recruitment on certain posts is concerned, I am of the opinion that, this Court cannot grant any injunction or prohibit the ig respondents 6 to 15 from taking further action on the advertisement dated 15.9.2010. The petitioners have made endeavour to show that the relatives of the trustees are appointed as employees in past, and therefore, the respondents 6 to 15 are required to be restrained from carrying out the recruitment process. This point raised by the petitioners is squarely answered by the authoritative pronouncements of the Apex Court in case of Girjesh Shrivastava (supra). It is not in dispute that the earlier selection process is not subject matter of this writ petition or the same has not been challenged by the petitioners.
It is also not in dispute that both petitioners are not aggrieved parties by virtue of their non ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 25 selection as employee of the trust or they have filed applications in pursuant to the advertisement dated 15.9.2010 for appointment on any post mentioned in said advertisement.
It is relevant at this juncture to mention that this Court by order dated 1st October, 2010 directed the ig Assistant Charity Commissioner, Ahmednagar to ensure that no appointments are made by the Respondents No.6 to 15 - trustees.
By way of ad interim relief, respondents -
trustees were directed not to issue orders of appointment in pursuant to the advertisement issued on 15.9.2010 until next date. Therefore, by virtue of interim order, the respondents 6 to 15 were restrained from issuing any appointment orders.
The Hon'ble Apex Court in case of Dr. Duryodhan Sahu (supra), held that in order to bring the matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 26 pertaining to any matter within the jurisdiction of the Tribunal. A private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated.
Yet, in another case of B. Ramanjini and others vs State of A.P. And others, reported in (2002)5 SCC 533, the Supreme Court, in the facts of that case, held that there was no need for the High Court to give any direction for future merely on the basis of hypothetical situation as to how the selection had to be made and provide for the manner in which it should be given effect to.
In the instant case also, yet the respondents have to complete recruitment process and issue appointment orders in pursuant to the ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 27 advertisement dated 15.9.2010. If there is any illegality or if the petitioners feel that process has not been properly conducted, the petitioners if fall under the category of aggrieved persons, can challenge the said selection by specifically pointing out instances.
As on today, no such prohibitory order restraining ig the respondents No.6 to 15 from carrying out recruitment process can be passed by this Court only on hypothetical situation or merely with an apprehension that the respondents No.6 to 15 may appoint their relatives and none else.
In case of Charanjit Singh and others Vs. Harinder Sharma and others, reported in (2002)9 SCC 732, the Apex Court, in the facts of that case, observed in para 5, thus:
"5. The Government itself on the receipt of the report did not find it expedient to set aside the orders of appointments made pursuant to the selections. None of the candidates who had participated in the process of selection and were not selected ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 28 have filed the writ petition. The petition is filed by the respondents in the nature of public interest litigation and two of them being Municipal Councilors, are parties to the decision of approving the selections made. The public interest in such matters would be adequately protected if Rules are duly complied with. We do not think there was any reason for the High Court to have interfered with the selections made.
ig The
High Court on a perfunctory consideration
has upset the selections made without
examining the matter in depth. We,
therefore, set aside the order made by the High Court and allow this appeal. The writ petition filed by Respondents 1 to 3 stands dismissed. No costs."
In the case of Union of India Vs. Rajesh P.U., Puthuvalnikathu, reported in (2003) 7 SCC 285, wherein it is observed in paragraph 6, thus:
"6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the Report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 29 selection of candidates, filed on our directions - which Report itself seems to have been also produced for the perusal of the High Court, there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of written examination - either by the candidates ig or by those who actually conducted them. If the Board itself decided to dictate the questions in loud speaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of Invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of written examination itself, except noticing only certain infirmities only in the matter of valuation of answer sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 30 the Special Committee has extensively scrutinized and reviewed situation by reevaluating the answer sheets of all the 134 successful as well as the unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment. There was no infirmity ig whatsoever in the selection of the other successful candidates than the identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or other of irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or other reasons. Applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 31 to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go bye to contextual considerations throwing to winds the principle of proportionality in going farther than what was strictly and reasonably required to meet the situation. In short, the Competent Authority completely misdirected itself in taking such an extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational."
Yet, in another reported judgment in case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees' Assn. and others (2006) 11 SCC 731 (II), in paragraph 51, the Apex Court held that the Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment.
::: Downloaded on - 09/06/2013 16:44:25 :::wp8769.10 32 In case of Dattaraj Nathuji Thaware vs. State of Maharashtra and others, (2005) 1 SCC 590, the Apex Court held that a person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 33 petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
In case of Girjesh Shrivastava & Ors. Vs. State of M.P. & Ors., reported in 2010(6) ALL MR 930, the Apex Court, relying on various earlier judgments of the same Court, in para 24 held, thus:
"24. From these facts it can be concluded that the alleged participation of near relatives in the selection process was not such a factor as to vitiate the entire selection process. Even if there were some illegal beneficiaries from the selection process, they should have been weeded out instead of striking down the entire selection process. In Charanjit Singh and others vs. Harinder Sharma and others [(2002) 9 SCC 732] a similar situation had arisen. In that case, while not approving the interference of the High Court in the selection process, this Court held that merely because some of the candidates in the selection process happened to be relatives of the members of the selection committee, it did not mean that all the candidates were relatives of the members of the selection committee and had been illegally selected. It was also held that since the petition was not made by any of the candidates who had appeared in the selection process and was instead filed as a Public Interest Litigation, it was improper for the High Court to ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 34 interfere in the matter. "
18. Therefore, from all the above authoritative pronouncements of the Supreme Court, it is crystal clear that there cannot be a Public Interest Litigation in service matters. In the instant case, the petitioners are not personally aggrieved by way of issuance of advertisement for recruitment of certain employees. It is not in dispute that in pursuant to the advertisement dated 15.9.2010 the respondent No.5 trust has received certain applications from the desirous candidates for appointment on the posts which are advertised. However, due to interim order passed by this Court, the respondents are not able to carry out the recruitment process. As stated by the petitioners themselves in the petition, the term of the respondents 6 to 15 has come to an end by December, 2010, therefore, in my opinion, it is not necessary now to issue any directions to the Assistant Charity Commissioner, Ahmednagar to restrain the respondents 6 to 15 from carrying out recruitment process. As discussed herein above and as laid down by the Hon'ble ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 35 Supreme Court in various pronouncements referred above, no public interest litigation can be entertained in service matters and this Court cannot interfere merely on the ground, as stated by the petitioners, that in past some relatives of the trustees were appointed and, therefore, respondents 6 to 15 may be restrained from acting in pursuant to the advertisement dated 15.9.2010 from completing recruitment process. The advertisement dated 15.9.2010 is yet to be acted upon, interviews are to be held and appointments are yet to be given. Merely on the hypothetical basis or merely because the petitioners are seeking directions, the respondents cannot be prevented from recruiting the persons for various posts as advertised. I find considerable substance in the submission of the learned Counsel for respondents 5 to 15 that the Collector has directed the respondents 5 to 15 to take immediate steps for security of Devasthan. On perusal of the advertisement, it appears that 19 posts of security guards are required to be filled in. Therefore, in the ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 36 light of above, this petition seeking directions to the respondents / State authorities to restrain respondents 6 to 15 from completing recruitment process in pursuant to the advertisement dated 15.9.2010 has no force and said prayer stands rejected.
It will be open for the respondent No.5 to continue with the recruitment process and take further steps. The respondent No.5, if necessary, can issue fresh advertisement or can continue with advertisement dated 15.9.2010 subject to certain changes and modifications, as felt necessary, in the changed circumstances.
19. The perusal of cause title of the petition reveals that the petitioner No.2 is resident of Shanishingnapur and he is an interested person.
The Assistant Charity Commissioner has acted in pursuant to the application filed by the petitioners and therefore, once having been acted on the application filed by the petitioners, so far as other grievances raised by the petitioners ::: Downloaded on - 09/06/2013 16:44:25 ::: wp8769.10 37 than recruitment process are concerned, the authorities are required to complete the Inquiry No.28/2010, at the earliest. Therefore, the respondents No.1 to 4, and in particular, respondent No.4 is required to be directed to complete the Inquiry No.28/2010 within three months from today. It is needless to mention that sinceig the authority has to conduct the inquiry and such proceedings would be quasi judicial in nature, the parties will be at liberty to put forth their case. The concerned authority will have to complete Inquiry No. 28/2010 by giving reasonable opportunity to the parties, as contemplated under relevant law provisions, to put forth their case, as expeditiously as possible, and in any case, within three months from today. It is made clear that if the authorities fail to complete the inquiry within the stipulated period, the petitioners will have liberty to move this Court for initiating appropriate action against the concerned government authorities.
::: Downloaded on - 09/06/2013 16:44:25 :::wp8769.10 38 It is needless to mention that this Court has not expressed any opinion on merits of the matter, except on the point of recruitment process. The prayer of the petitioners for restraining the respondents from carrying out recruitment process is already rejected.
20. Taking ig overall view of the matter, the petition is partly allowed. The Assistant Charity Commissioner, Ahmednagar is directed to complete the Inquiry No.28/2010 within three months from today after giving the parties opportunity of being heard. The rest of the prayers of the petitioners stand rejected.
Needless to mention that the interim relief granted by this Court on 1st October, 2010 stands vacated. Rule made absolute partly in above terms with no order as to costs.
[ S.S. SHINDE, J ] Kadam.
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