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CASE NO.: Appeal (civil)  2091-2092 of 2008

PETITIONER: Rajendra

RESPONDENT: State of  Maharashtra & Ors.

DATE OF JUDGMENT: 25/03/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T (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 \021Management\022 in  Nandinibai Vamanrao Girls High School, Jalgaon w.e.f. 1.1.2001 vide letter  dated 30.12.2000.  The appellant belongs to the \021Other Backward Class\022  (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

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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,

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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

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Review Committee is not acceptable, then the further proposal should be  submitted before the \023Secretary Committee\024 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: \023If 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.\024

It further goes on to say that: \023..even if these posts lie vacant for the period of more than 6  months, still it won\022t 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 won\022t get lapsed.\024

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: \023Junior 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.\024

We do not think that the plain reading of this advertisement would convey

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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 \023OBC\024 being \023Open  group\024 appear to be either an error or a printer\022s 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: \023It 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 \026 SC 2.      Rajendra Vitthal Nemade \026 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 Hon\022ble High Court.\024

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. 19.     In the result the appeals are allowed. We set aside the order of the

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High Court and allow the writ petition.  The counsel fee is fixed at  Rs.10,000/-