Dismissed

Abhay Shaligram Gajbhiye v. State of Mah. Thr. Secy., Public Health Deptt. , Mantralaya, Mumbai

Bombay HC3 Sept 2012WP/5224/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition as non-maintainable. The petitioner, having secured a favorable order from the Administrative Tribunal quashing their initial ineligibility declaration, later filed a petition to challenge appointments of other candidates they had previously abandoned in that Tribunal proceeding. The Court held this was an abuse of process.

What did the court decide?

Petition dismissed with costs of Rs. 10,000/- imposed on the petitioner.

Abhay Shaligram Gajbhiye Vs State of Mah… — Pension and Retirement Benefits | Bombay HC (2012)

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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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W.P. NO.5224 of 2010

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(Abhay S. Gajbhiye VERSUS State of Maharashtra and others. )

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Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders

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Court's or Judge's orders

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- - - - Shri K.H. Deshpande, Senior Advocate with Shri M.V. Samarth Advocate for Petitioner.

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Smt. K.R. Deshpande, A.G.P. for Respondent no.1. Shri A.R. Sambre, Advocate for Respondent No.2. Shri A.B. Patil, Advocate for Respondent Nos. 3,5,7,10 and 12.

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CORAM : SMT. VASANTI A. NAIK AND SUNIL P. DESHMUKH, JJ. DATE : SEPTEMBER 03, 2012 .

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Heard.

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By this petition, the petitioner seeks a writ, order or direction to quash and set aside the entire process of recruitment adopted by the respondent no.2- Maharashtra Public Service Commission whereby the respondent nos.3 to 12 were appointed on the post of Deputy Director of Health Services with the Government of Maharashtra. A declaration is sought by the petitioner that the M.P.S.C. has no authority in law to prescribe additional qualifications. Initially, a prayer was made that in the meantime, the respondent no.2M.P.S.C. should be directed to implement the judgment dated 07.05.2010 passed by the Maharashtra Administrative Tribunal, Nagpur in Original Application No. 587 of 2004 and consider the claim of the petitioner for appointment to the post of Deputy Director of Health Services with the Government of Maharashtra. The prayer for seeking a

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direction to the M.P.S.C. to implement the judgment dated 07.05.2010 passed in Original Application No. 587 of 2004 was, however, deleted as per the leave granted by this Court on 15.11.2010.

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The learned counsel for the respondents have raised a preliminary objection to the tenability of the writ petition. It is pointed out that the petitioner was desirous of appointment to the post of Deputy Director of Health Services Grade -I and had applied in terms of the advertisement issued by the M.P.S.C. The M.P.S.C., however, by the communication dated 11.11.2004 held that the petitioner was not eligible for appointment on the said post. The petitioner challenged the said communication by filing an original application before the Maharashtra Administrative Tribunal. The application was registered as Original Application No. 587 of 2004. The petitioner had sought a direction to the M.P.S.C. to call the petitioner for interview and had also challenged the appointment orders issued in favour of the respondent no. 3 to 12. When the original application was heard, the counsel for the petitioner submitted that the petitioner does not press for quashing the selection and appointments of the respondent nos. 3 to 12. The said statement made on behalf of the petitioner was recorded by the Maharashtra Administrative Tribunal in the judgment dated 07.05.2010. In this background, according to the learned counsel for the respondents, the Tribunal did not deal with the contentions of the respondent nos. 3 to 12, the candidates appointed on the post of Deputy Director of Health Services Grade-I. The Maharashtra Administrative Tribunal allowed the original application in part by quashing

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and setting aside the communication issued by the M.P.S.C. on 11.11.2004 holding that the petitioner was ineligible. The respondent- M.P.S.C. was directed to call the petitioner for interview within two months from the date of issuance of the judgment dated 07.05.2010. The M.P.S.C. was aggrieved by the judgment of the Tribunal and, therefore, filed writ petition No.3354 of 2010. It appears that a statement was made by the counsel for the petitioner, who was the respondent in that case that till the matter was heard, the petitioner herein (respondent in that petition) would not seek the implementation of the order of the Maharashtra Administrative Tribunal. However, it appears from an order passed in Writ Petition No.3354 of 2010 on 18.10.2010 that the petitioner did not act as per the assurance given to the Court on the previous date of hearing and filed a contempt petition in the Tribunal. Hence, the judgment of the Tribunal dated 07.05.2010 and the contempt proceedings were stayed in Writ Petition No.3354 of 2010 till further orders. It appears that the stay granted in the other petition is still in operation.

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On the basis of the aforesaid facts, it is submitted on behalf of the respondents that the petitioner would not be entitled to file the present writ petition challenging the appointment of respondent nos. 3 to 12, specially when the petitioner had given up that claim before the Tribunal and the said fact is clearly recorded in the judgment of the Tribunal. It is submitted that since the petitioner had given up his claim against the respondents no.3 to 12, the Tribunal did not deal with the contentions of the respondent nos. 3 to 12 while deciding the original application by the judgment

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dated 07.05.2010. It is submitted that once having given up the challenge to the appointments of the respondent nos. 3 to 12, the petitioner cannot be permitted to challenge the appointments by filing the instant writ petition, specially when the original application is decided in favour of the petitioner without considering the contentions of the respondent nos. 3 to 12. It is submitted that an absolutely false affidavit has now been filed by the petitioner on 02.03.2012 stating therein that the concession of the counsel for the petitioner giving up the challenge to the appointments of the respondent nos. 3 to 12 was recorded in view of the fact that M.P.S.C. had agreed to the suggestion of the Tribunal that they would call the petitioner for interview in case the petitioner gave up his grievance against the respondent nos. 3 to 12. It is submitted on behalf of the respondents that it is falsely stated in the affidavit that though the M.P.S.C. did not give such an undertaking in writing and the counsel for the petitioner had not agreed to the suggestion of giving up the challenge against the respondent nos. 3 to 12, the Tribunal recorded the concession in paragraph 14 of the judgment. It is submitted that the statements of facts in the additional affidavit of the petitioner are not only an after thought but are totally false and baseless. It is submitted that the petitioner had neither filed an affidavit before the Tribunal stating that the concession was not given by the counsel for the petitioner at the time of hearing and the same is wrongly recorded by the Tribunal nor does the said explanation find place in the contempt petition filed by the petitioner. It is submitted that the present petition also does not make a reference to the wrongful

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recording of the concession by the Tribunal. It is submitted that the action of the petitioner in raising the said issue for the first time by the additional affidavit is mischievous and the petition needs to be dismissed with heavy costs.

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Shri K.H. Deshpande, the learned senior counsel appearing on behalf of the petitioner submitted by taking this Court through the additional affidavit filed by the petitioner on 02.03.2012 that the petitioner had not desired to give up the grievance against the respondent nos. 3 to 12 and the counsel for the petitioner also did not agree to give up the claim without a written undertaking from the M.P.S.C. that the petitioner would be called for interview if he gives up his claim against the other respondents. In this background, according to the learned senior counsel, the preliminary objection needs to be rejected.

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On hearing the learned counsel for the parties, it appears that the petitioner has abused the process of Court by filing the instant petition. It is necessary to note that the Tribunal had recorded the statement of the counsel for the petitioner in paragraph 14 of the judgment of the Tribunal dated 07.05.2010 that the petitioner had given up the challenge to the selection/appointment of the respondent nos. 3 to 12. After recording the statement of the counsel for the petitioner, the Tribunal has observed that there was no reason to deal with the contentions of the respondent nos. 3 to 12. It is in this background that the Tribunal has neither referred to the submissions of the respondent nos. 3 to 12 nor has the Tribunal considered them. After hearing the submissions of the petitioner and the M.P.S.C., the Tribunal partly allowed the original application and quashed the

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communication issued by the M.P.S.C. on 11.11.2004. The M.P.S.C. was directed to call the petitioner for interview. Actually the grievance of the petitioner stood fully redressed in view of the order passed by the Maharashtra Administrative Tribunal inasmuch as the order of the M.P.S.C. holding that the petitioner was ineligible was quashed and set aside and M.P.S.C. was also directed to call the petitioner for interview. The M.P.S.C. , however, challenged the said order in Writ Petition No. 3354 of 2010. Though a solemn statement was made on behalf of the petitioner (the respondent in that petition) that he would not seek the implementation of the order of the Tribunal till the matter was heard, the petitioner went to the Tribunal to file a contempt petition. When this fact was pointed out to the Court in Writ Petition No. 3354 of 2010, the Court recorded the statement made by the counsel for the petitioner on the previous date of hearing and since the petitioner was not abiding by the statement solemnly made before the Court, granted stay to the order of the Tribunal dated 07.05.2010 and also to the contempt proceedings filed by the petitioner in the Tribunal. After the petitioner was served in the other Writ Petition No. 3354 of 2010 and a statement was made in that petition by the counsel about not implementing the judgment of the Tribunal till that petition was heard, the present writ petition has been filed on 15.10.2010. It is really surprising that the petitioner who has secured a favourable order from the Maharashtra Administrative Tribunal has filed the instant writ petition challenging the entire procedure and process of recruitment as also the appointments of the respondent no. 3 to 12 on the post of Deputy Director of

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Health Services. We fail to understand why the petitioner with the best possible order in his pocket should file a writ petition seeking to quash the entire selection process and also the appointments of the respondent nos. 3 to 12, specially when the petitioner had given up his challenge to the appointments of the respondent nos. 3 to 12 before the Tribunal. The only course of action available to the petitioner was to defend the writ petition filed by the M.P.S.C. It is also surprising that by prayer clause (d) in the present petition, the petitioner had sought a direction to the respondent no.2- M.P.S.C. to implement the order dated 07.05.2010 and lateron with the leave of the Court had deleted the said prayer clause on 29.11.2010. We do not appreciate the submission made on behalf of the petitioner that the concession of the counsel for the petitioner was to be recorded by the Tribunal only if a written undertaking was given by the counsel for the M.P.S.C. We find that the statements in the additional affidavit are not only far from truth, but are mischievous and misleading. Had the statements been correct, the petitioner would have been the first person to inform the Tribunal on receipt of the copy of the judgment dated 07.05.2010 that the statement of the counsel for the petitioner was wrongly recorded in paragraph 14 of the judgment. So also the petitioner could have pointed out the mistake in regard to the incorrect recording of the statement of the petitioner’s counsel in the contempt proceedings filed by the petitioner before the Tribunal. Not only did the petitioner not state these facts before the Tribunal at any point of time, but the petitioner also did not make an averment in this regard in this writ petition. By

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mentioning the facts which are sought to be brought on record for the first time by the additional affidavit, the petitioner has sought a challenge to the appointment of the respondent nos. 3 to 12 on the post of Deputy Director of Health Services Grade-I. The filing of this petition is also an after thought and the petition has been mischievously filed when the order of the Tribunal was totally favourable to the petitioner and the petitioner had also filed a caveat in this Court apprehending that the M.P.S.C. would file a writ petition challenging the order of the Tribunal dated 07.05.2010 directing the M.P.S.C. to permit the petitioner to appear at the interview. Since this petition was taken up for hearing along with other W.P. No. 3354 of 2010, we have also noted the order dated 18.10.2010 in the said writ petition wherein this Court has recorded the conduct of the petitioner in not abiding by the statement made on the previous date of hearing and has, therefore, granted stay to the judgment of the Tribunal dated 07.05.2010 and the contempt proceedings initiated before the Tribunal. 7. We were really shocked and surprised with the manner in which the petitioner proceeded in filing the writ petition and the circumstances in which the petitioner filed the same. Considering our displeasure about the manner in which the petition is filed and the manner in which the petitioner has acted in spite of the solemn statement made before the Tribunal, at the request of the learned senior counsel, the matter was adjourned for today for making a statement about withdrawal of the petition. It is informed by the learned senior counsel on instructions, that the petitioner is desirous of pressing the prayers made in the writ petition

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and is not ready to withdraw the same.

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Hence, normally though this Court is not inclined to impose costs on the parties for petty irregularities or inactions on their part, in the facts and circumstances of this case, we desire to impose costs on the petitioner for abusing the process of law. We uphold the preliminary objection raised on behalf of the respondents and hold that the writ petition is not maintainable, on the facts narrated hereinabove. Hence, we dismiss the petition with costs of Rs. 10,000/- (Rs. Ten Thousand).

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JUDGE

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JUDGE

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HALWAI

Abhay Shaligram Gajbhiye v. State of Mah. Thr. Secy., Public Health Deptt. , Mantralaya, Mumbai

Case brief

What is this about?

What did the court decide?

Abhay Shaligram Gajbhiye v. State of Mah. Thr. Secy., Public Health Deptt. , Mantralaya, Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

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