Bombay High Court
Shaikh Rafiq Mainoddin And Others vs The State Of Maharashtra And Others on 13 March, 2020
Bench: S. V. Gangapurwala, Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1663 OF 2019
Pramod Vasant Dhaware and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri Datta A. Madke, Advocate for Petitioners.
Shri P. G. Borade, A.G.P. for Respondent Nos. 1 and 2.
Shri D. S. Bagul, Advocate for the Respondent No. 3.
WITH
WRIT PETITION NO. 754 OF 2019
Shaikh Nisar Nashir and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri Nitin R. Bhavar, Advocate for Petitioners.
Shri P. G. Borade, A.G.P. for the Respondent No. 1.
The Respondent No. 2 is served.
Shri D. S. Bagul, Advocate for the Respondent No. 3.
WITH
WRIT PETITION NO. 1670 OF 2019
Yogesh Janardhan Borse and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri C. V. Dharurkar, Advocate for Petitioners.
Shri P. G. Borade, A.G.P. for Respondent Nos. 1 and 2.
Shri D. S. Bagul, Advocate for the Respondent No. 3.
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WITH
WRIT PETITION NO. 1748 OF 2019
Amol Rambhau Barvkar and another .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri Sharad S. Shinde, Advocate for Petitioners.
Shri P. G. Borade, A.G.P. for the Respondent No. 1.
The Respondent No. 2 is served.
Shri D. S. Bagul, Advocate for the Respondent No. 3.
WITH
WRIT PETITION NO. 2036 OF 2019
Pravin Ashok Patil and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri C. V. Dharurkar, Advocate for Petitioners.
Shri P. G. Borade, A.G.P. for the Respondent No. 1.
Shri D. S. Bagul, Advocate for Respondent Nos. 2 and 3.
WITH
WRIT PETITION NO. 2153 OF 2019
Shaikh Rafiq Mainoddin and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri Pradeep L. Shahane and Shri P. P. Shahane, Advocates for
Petitioners.
Shri P. G. Borade, A.G.P. for the Respondent No. 1.
Shri D. S. Bagul, Advocate for Respondent Nos. 2 and 3.
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WITH
WRIT PETITION NO. 3245 OF 2019
Mahadeo Mukund Kambale and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri Pradeep L. Shahane and Shri P. P. Shahane, Advocates for
Petitioners.
Shri P. G. Borade, A.G.P. for the Respondent No. 1.
Shri D. S. Bagul, Advocate for Respondent Nos. 2 to 5.
WITH
WRIT PETITION NO. 4904 OF 2019
Narendra Yuvraj Pawar and others .. Petitioners
Versus
The State of Maharashtra and others .. Respondents
Shri Lalitkumar S. Mahajan, Advocates for Petitioners.
Shri P. G. Borade, A.G.P. for the Respondent No. 1.
Shri D. S. Bagul, Advocate for Respondent Nos. 2 to 6.
CORAM : S. V. GANGAPURWALA AND
AVINASH G. GHAROTE, JJ.
Closed for Orders on : 13.12.2019
Order pronounced on : 13.03.2020
FINAL ORDER (Per S. V. Gangapurwala, J) :-
. The petitioners in these writ petitions seek
directions against the respondent/Maharashtra State Road
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Transport Corporation (for short "MSRTC") to issue
appointment orders in their favour.
2. The respondent/MSRTC issued advertisement for
filling in the posts of driver at various districts viz
Osmanabad, Ahmednagar, Aurangabad, Dhule, Latur and
Nandurbar. The petitioners in Writ Petition No. 1663 of 2019
and Writ Petition No. 1748 of 2019 had participated in the
selection process conducted at Osmanabad district. The
names of these petitioners were in the wait list/additional
select list. The petitioners in Writ Petition No. 754 of 2019
were in the wait list of the selection process for Ahmednagar
district. The petitioners in Writ Petition No. 1670 of 2019 had
participated and were placed in the wait list of the selection
process for Aurangabad district. The petitioners in Writ
Petition No. 2036 of 2019 were in the wait list of selection
process for Dhule district. The petitioners in Writ Petition No.
2153 of 2019 and Writ Petition No. 3245 of 2019 were in the
wait list for Nandurbar district.
3. The MSRTC did not issue appointment orders to
these persons in the wait list, as such present writ petitions
are filed by them seeking appointment orders on the ground
that, their names appear in the wait list/additional select list.
4. The learned counsel for respective petitioners
canvassed that, the respondent/MSRTC did not fill in all the
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posts advertised. The respondent/MSRTC is bound to fill in all
the posts advertised. The petitioners have undergone the
selection process. Once the select list and the wait list is
prepared and the appointments are made, same should be for
all the advertised posts. The respondent/MSRTC cannot act
arbitrarily. The respondent/MSRTC is an instrumentality of
the State. It has to act fairly. The learned counsel for
petitioners submit that, once a person is declared successful
according to merit list of the selected candidates, the
appointing authority has responsibility to appoint him. The
reliance is placed on the judgment of the Apex Curt in a case
of Prem Praksh Vs. Union of India and others reported in 1984 (Suppl.)
SCC 687. The leaned counsel further submit that, once the
names of the petitioners appear in the select/wait list, it is the
right of the said candidate to be considered for appointments,
more particularly as the posts are vacant. The learned counsel
rely on the judgment of the Apex Court in a case of N. T. Devin
Katti and others Vs. Karnataka P.S.C. and others reported in (1990) 3
SCC 157 and in a case of R. S. Mittal Vs. Union of India reported in
1995 (Suppl.) 2 SCC 230. The learned counsel further submit
that, unfettered power of selection and appointment does not
mean that same would be made available to an employer at
the cost of fair play, good conscience and equity. The
petitioners rely on the judgment of the Apex Court in a case of
Praveen Singh Vs. State of Punjab reported in (2000) 8 SCC 633. The
wait list allows room to the appointing authority to fill up
vacancy, which arose during its subsistence. Reliance is
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placed on the judgment of the Apex Court in a case of State of J.
& K. and others Vs. Sat Pal reported in 2013 (11) SCC 737 and in a
case of Rajabhau Shamrao Chavan and others Vs. State of
Maharashtra in Writ Petition No. 6902 of 2010 delivered by
the Bombay High Court at Aurangabad under judgment and
order dated 04.10.2010. The learned counsel rely on the
judgment of the Division Bench of this Court in Writ Petition
No. 10330 of 2017 to contend that the select list and wait list
ought to be operated when vacancy exists.
5. The learned counsel further submit that, some of
the candidates were directed to undergo medical examination.
This shows that, they were in the process of being considered
for issuance of appointment orders and abruptly the process is
stalled. On 09.07.2018 decision was also taken by the MSRTC
that those who are selected in the 2013 selection process and
the names are placed in the additional select list/wait list shall
be considered for appointment as and when need arises. The
respondent/MSRTC is not following its own circular/decision.
The same was pursuant to the resolution passed by the Board
on 02nd July, 2018. Once the petitioners have participated in the
selection process, they have legitimate expectation to be selected.
Some of the petitioners were called for document verification
also and in some districts subsequently advertisements were
issued in the year 2019 for filing in the posts. The learned
counsel for petitioners also rely on the judgment of the Apex
Court in a case of Union of India Vs. Pradeep Kumar Kedia and others
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reported in 2012(1) SCC 432 and another judgment of the Apex
Court in a case of Director SCTI for Medical Science and Technology
and another Vs. M. Pushkar reported in 2008(1) SCC 448.
6. Mr. Bagul, the learned advocate for the respondent/
MSRTC submits that, mere name in the select list does not
create right in favour of a candidate to seek appointment.
Reliance is placed by the learned advocate on the judgment of
the Apex Court in a case of Shankarsan Das Vs. Union of India
reported in 1991(3) SCC 47. The learned counsel further
submits that, the life of the wait list is only one year as per the
Maharashtra State Road Transport Corporation
(Appointment, Seniority and Promotion) Rules, so also circular
dated 01.12.2009.
7. Mr. Bagul the learned counsel further submits
that, each division of MSRTC operates as distinct unit and
divisional controller is head of the unit. Though
advertisement is issued from the Central level, the
appointment of the candidate is made at divisional level and
the vacancies of divisional level are filled in at the divisional
level. A candidate applying at a particular division cannot lay
claim on the vacancy of another division. The letter relied by
the petitioners dated 09.07.2018 may not be of much help.
Under the said letter, the Corporation had decided to call upon
these candidates for document verification, however, the said
decision was against the policy and contrary to the period of
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wait list. The corporation realized its mistake, the same was
immediately rectified by passing a resolution. The learned
counsel further relies on the judgment of the Division Bench of
this Court in a case of Apurba Kumar and others Vs. Institute of
Banking Personnel Selection and others reported in 2018 DGLS (Bom)
759 to contend that, the claim cannot be considered after the
lapse of select list/wait list beyond one year. The learned
counsel further submits that, in Ahmednagar division,
advertisement was issued for 262 posts. Initially 112
successful candidates were placed in the select list, out of that
99 candidates were appointed. There was short fall of 153
candidates. The seats were filled in of SC, N.T.C. and open
competition category candidates. The vacancy remained of
S.T. category 30 seats, S.B.C. 15 seats and O.B.C. 108 seats as
per the advertisement. The petitioner Nos. 1 and 2 in Writ
Petition No 754 of 2019 were in the additional list for open
category candidates at Sr. Nos. 10 and 7 respectively. The
petitioner Nos. 3, 4 and 5 were in the additional list of S.C.
candidates at Sr. No. 6, 7 and 8 respectively. The petitioner
No. 6 was in additional list of N.T.-C category at Sr. No. 2. As
there was no vacancy as per the advertised posts in S.C., N.T.-
C and open category, they were not selected and wait list
lapsed after one year.
8. In Osmanabad division, 128 posts were advertised.
A list of 41 successful candidates was published. There was
short fall of 87 candidates. Forty one candidates were
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appointed. The names of petitioner Nos. 1 and 2 in Writ
Petition No. 1748 of 2019 were rejected on technical ground
and their names were not included in the additional list. They
were not selected. The petitioner Nos. 1 and 2 in Writ Petition
No. 1663 of 2019 (Osmanabad Division) were at Sr. No. 3 and
4 in additional list of S.C. category and petitioner Nos. 3 and 4
were at Sr. No. 4 and 7 in the additional list of open category.
There was no vacancy for S.C. and open category candidates as
per the advertised posts, because fourteen candidates were
appointed from S.C. category and twelve candidates were
appointed from open category. The names of petitioner Nos. 5
to 22 were rejected and their names were not in additional list.
The wait list is valid only for one year as per the subsequent
rules.
9. The learned counsel further submits that, only
because some of the petitioners were called for document
verification or for medical examination, that would not create
any vested right in them.
10. We have considered the submissions canvassed by
the learned counsel for respective parties.
11. There cannot be any debate with the proposition
that mere name in the wait list/additional list would not give
the petitioners indefeasible right to seek appointment. As per
the recruitment rules of MSRTC, the life of wait list is for one
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year. Directions cannot be given to the MSRTC to fill in the
post, which may subsequently become vacant. The matters
will have to be considered about the claim of the petitioners to
be appointed as against the vacant posts qua the
advertisement of the year 2015 and no further. The MSRTC
cannot be compelled to fill more posts than advertised. So also
the MSRTC has to consider that the post earmarked for
reserved category is filled in according to the reservation
provided vis-a-vis the advertisement.
12. The MSRTC is an instrumentality of the State. It
is expected of MSRTC to act fairly. So also has to adhere to
the recruitment rules.
13. It appears that, appointment orders are not issued
to the petitioners during the period the additional select
list/wait list was valid, no doubt in cases of some of the
petitioners document verification was done and medical
examination was also held. However, subsequently
appointment orders are not issued to them as the period of
wait list stood lapsed. It appears from the affidavit filed that,
initially MSRTC was under belief that validity of wait list was
for two years. Subsequently it has been tried to be contended
that, the validity period of the wait list/additional list is only
one year. Though a letter was issued by the board that the
candidates who are in the additional select list or the wait list
should be considered and be called for document verification,
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but, immediately the corporation passed a resolution
purportedly on 02nd July, 2018 cancelling the earlier
resolution.
14. The person in the select list/wait list does not have
right for appointment, but certainly has right to be considered
for appointment. The instrumentality of the State is also
required to act fairly and the action of the instrumentality of
the State should not smack of arbitrariness.
15. The only reason, it appears for not considering the
petitioners for appointments is either the post of a particular
category in the said division was not available as per the
advertisement and/or the wait list had lapsed. It appears that,
after one year the MSRTC had called for document verification
to some of the candidates and also directed them for medical
examination i. e. further process was initiated. Some of the
petitioners were called for document verification and medical
examination. The MSRTC could have considered appointing
the persons who were eligible in case they had taken a policy
decision to operate the wait list even after lapse of period of
two years. Of course, it is sole discretion of the MSRTC.
16. Strictly speaking the wait list has lapsed, however, as
decision was taken to consider some of the candidates for
appointment even after lapse of wait list, we would only
observe that, MSRTC could have considered the candidates
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whose medical examination and document verification was
conducted for giving appointments, if eligible in their
respective divisions and in the category they had applied.
17. In the light of the above, we pass following order.
ORDER
I. The candidates whose candidature was rejected by the Maharashtra State Road Transport Corporation (MSRTC) as contended in the affidavit in reply need not be considered for appointments.
II. If the post of a particular category as per the advertisement are filled in and there are no vacancies of posts as per the advertisement, then the petitioners in the wait list or additional select list would not get a right of appointment.
III Though we are not issuing any directions to the respondent/MSRTC to consider the petitioners whose document verification and medical examination was conducted to be appointed, we leave it to the M.S.R.T.C. to consider their request and if the vacant posts as per the advertisement of the year 2015 are available from the category from which they had applied, the M.S.R.T.C. may take a policy decision to appoint those ::: Uploaded on - 18/03/2020 ::: Downloaded on - 09/06/2020 06:03:13 ::: 13 wp 1663.19 petitioners who had undergone medical examination and document verification, as the respondent/MSRTC may deem fit and as advised.
IV. The writ petitions accordingly are disposed of. No costs.
[AVINASH G. GHAROTE, J.] [S. V. GANGAPURWALA, J.] bsb/March 20 ::: Uploaded on - 18/03/2020 ::: Downloaded on - 09/06/2020 06:03:13 :::