Allowed

Swati Raosaheb Bharud v. the State of Maharashtra and Others

Bombay HC24 Aug 2018WP/5135/2016

Case brief

AI extract

What is this about?

The High Court set aside the cancellation of the petitioner's appointment as Junior Research Assistant. The court held that an officer cannot supplement reasons for cancellation via affidavit and ruled that new promotion rules did not extinguish the petitioner's rights to a vacancy existing at the time of appointment.

What did the court decide?

The impugned order cancelling the appointment is quashed; the order of stay is set aside; the petitioner is allowed to resume duties within 15 days; appointment counted from 01.08.2012.

Swati Raosaheb Bharud Vs the State of Maharashtra and… — Service and Employment | Bombay HC (2018)

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(1) WP No.5135/2016

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

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WRIT PETITION NO.5135 OF 2016

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Swati Raosaheb Bharud Age : 28 years, occu.: service R/o Mithila, C-3, Mahatma Phule, Krushi Vidyapeeth, Rahuri, District Ahmednagar. Petitioner.

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Versus

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The State of Maharashtra Through Secretary, Agriculture Department, Mantralaya, Mumbai- 32.

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The Mahatma Phule Krishi Vidyapeeth, Rahuri. Through Vice Chancellor, Rahuri, Ahmednagar.

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The Registrar, Mahatma Phule Krishi Vidyapeeth, Rahuri, Ahmednagar.

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Maharashtra Council of Agricultural Research and Education, Maharashtra State, Pune. Respondents.

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Ms. Pradnya S. Talekar, Advocate for the petitioner. Mr. K.D. Mundhe, A.G.P. for the respondent-State. Mr. M.N. Navandar, Advocate for respondent Nos.2 & 3. Mr. S.K. Kadam, Advocate for respondent No.4.

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CORAM : S.V. GANGAPURWALA & SUNIL K. KOTWAL,JJ.

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(2) WP No.5135/2016 Reserved On : 21^st June 2018. Pronounced on : 24^th August 2018.

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ORDER (Per S.V. Gangapurwala, J) :-

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. The respondent-University invited the applications for the post of Junior Research Assistant. Pursuant to the advertisement, the petitioner applied for the post of Junior Research Assistant (Agronomy).

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The petitioner, after undergoing selection process, was selected and appointment order was issued in favour of the petitioner on 01.08.2012. On 02.08.2012, the appointment made in favour of the petitioner, was stayed. The petitioner has assailed the same in the present Writ Petition. During the pendency of the Writ Petition, the Vice-Chairman cancelled the appointment of the petitioner. By an amendment the same is also assailed.

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Ms. Talekar, learned Counsel for the petitioner strenuously contends that after legitimately having been issued the appointment order on 01.08.2012, the petitioner joined services as per the appointment order on 02.08.2012 and submitted joining report. The petitioner worked for a period of three days and it was informed to the petitioner that the appointment order is stayed. Learned Counsel submits that there were no irregularities in the selection process. Enquiry was directed. Enquiry was conducted by

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(3) WP No.5135/2016

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the Committee consisting of six persons of which the Chairman was Associate Dean.

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The learned Counsel further submits that the Committee, in its report, came to the conclusion that there was no favoritism. The petitioner is selected for the post of Junior Research Assistant (Agronomy) and father of the petitioner was concerned with the post of Botany. Father of the petitioner was not concerned with the selection process in which the petitioner had applied. The Enquiry Committee observed that the stay granted to the appointment of the petitioner desires to be lifted. The order of stay to the appointment should have been withdrawn. However, during the pendency of the Writ Petition, the respondent-Authority cancelled the appointment order in favour of the petitioner without assigning any reasons and even without issuing show-cause notice to the petitioner, thereby flouting the principles of natural justice and rules. Once the appointment order was issued and the petitioner had joined the duty, right is created in favour of the petitioner. The cancellation order, thereby cancelling appointment of the petitioner, is without complying with the rules and principles of natural justice. The same deserves to be set aside. Learned Counsel relied on the judgment of the Apex Court in the case of Shrawan Kumar Jha and others Vs. State of Bihar and others reported in 1991 Supp (1) SCC 330 and other judgments of the Apex Court in the cases of

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(4) WP No.5135/2016

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Jaswant Singh and others Vs. State of Madhya Pradesh and others reported in (2002) 9 SCC 700 and Nisha Devi Vs. State of H.P. Reported in (2014) 16 SCC 392 . Learned Counsel further submits that the order cancelling the appointment is without considering the relevant aspects and considerations. Such an order which is dehors the relevant considerations, deserves to be set aside. To substantiate the contentions learned Counsel relies on the judgment of the Apex Court in the case of R.K. Jain Vs. Union of India reported in (1993) 4 SCC 119 . Learned Counsel submits that the respondents now cannot be allowed to substitute the reasons by way of affidavit before this Court. The order cancelling the appointment cannot be justified by adding reasons in the affidavit and the same is not permissible. Learned Counsel relies on the judgment of the Apex Court in the case of Mohindar Singh Gill Vs Chief Election Commissioner reported in (1978) 1 SCC 405 .

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Mr. Navandar, learned Counsel for the respondents submits that number of complaints were received by the Agricultural Minister, Maharashtra State with regard to the selection process for filling in the post of Junior Research Assistant. In view of that, on 03.04.2012 Enquiry Committee of three members was formed by MCAER, Pune for holding detailed enquiry. The Enquiry Committee submitted its report on 12.06.2012. The same was forwarded to the Chief Secretary, Agricultural Department on 21.06.2012. In

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(5) WP No.5135/2016

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pursuance to the said enquiry report, respondent No.4 MCAER, Pune issued directions to the University not to fill in the posts of Junior Research Assistant. Three candidates, who were selected, were not given appointment orders. Learned Counsel submits that after receipt of the directions from MCAER, Pune on 02.08.2012, immediately an order was issued to the petitioner staying the appointment order.

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Learned Counsel submits that it is erroneous on the part of the petitioner to suggest that the petitioner had joined after issuance of appointment order. On the contrary, on 02.08.2012, an endorsement is made that the petitioner cannot be allowed to join. Learned Counsel submits that the petitioner has tried to mislead the Court by filing false affidavit that the petitioner had joined pursuant to the appointment order. Even the muster roll indicates that name of the petitioner was written on the muster roll, but the name was cancelled by stating “not allowed”.

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According to learned counsel, the Director General, MCAER, Pune vide letter dated 25.07.2013 intimated the then Vice Chancellor to act and initiate action on the basis of Enquiry Committee's report and submit his report to the State Government. In view of that, the then Vice Chancellor formulated a Committee for reviewing the action taken report on the enquiry report regarding recruitment to the post of Junior Research Assistant. The Committee

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(6) WP No.5135/2016

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of Dr. P.A. Turbatmath, Associate Dean, Dr. Annasaheb Shinde Agricultural College, Rahuri and four other persons was formed. They submitted report on 11.02.2014. Learned Counsel submits that in enquiry after show-cause notice to all the employees, father of the petitioner Mr. R.W. Bharud was given a warning as he has not informed the then Vice Chancellor that his daughter is also one of the candidates for the post of Junior Research Assistant. The learned Counsel further submits that the Vice Chancellor is a competent authority to take decision after considering the report of Enquiry Committee. The Vice Chancellor, considering the Statute 135 of the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes 1990, has taken a conscious decision to cancell the appointment order. Statute 135 states that any attempt on the part of the candidate or his relative or friend to enlist support by direct or indirect method for his application for appointment to any of the posts in the University services shall disqualify the candidate for being appointed to the post. Learned Counsel submits that considering the aforesaid aspect and considering the marks obtained by the petitioner in Viva-voce, the Vice Chancellor took conscious decision to cancell the appointment.

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The learned Counsel further submits that the Executive Council of the University, in its meeting on 04.08.2014, has passed Resolution No. 11 (19) and took a decision that there shall be 25%

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(7) WP No.5135/2016

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post of the total posts to be filled in by promotion from the seniority list and 75% posts are to be filled in by nomination. In view of that, scenario has undergone change. There are total 37 sanctioned posts for Junior Research Assistant (Agronomy). As per the ratio of 75:25%, 28 posts would be available for filling in by nomination and 9 posts by promotion. 28 posts of Junior Research Assistant are available. Out of that 25 % posts are filled in from nomination and 9 posts from promotion quota are vacant. The petitioner had applied from Scheduled Caste category. If the position as on date is considered, then there are total four posts from the Scheduled Caste category and all the four posts from the Scheduled Caste category are filled in. There is no vacancy available for the petitioner. Learned Counsel submits that the petitioner would not be covered under Rule 2 (9) of the Maharashtra Civil Services (Discipline and Appeal) Rules as the petitioner cannot be termed to be a 'Government servant'. The petitioner cannot be stated to be in the service of the University, as such, Maharashtra Civil Services Rules would not be applicable to the petitioner. The action of the respondents is legal and valid and in consonance with the report of the Enquiry Committee. The petition deserves to be dismissed.

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We have considered the submissions canvassed by the learned counsel for respective parties.

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(8) WP No.5135/2016

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It is an admitted fact that, after undergoing selection process, the petitioner was selected and appointment order was issued in favour of the petitioner on 01.08.2012 for the post of Junior Research Assistant (Agronomy) (for short “J. R. A.”) and on 02^nd August, 2012 the appointment made in favour of the petitioner was stayed. The appointment order of the petitioner was stayed primarily for the reason that some complaints were received with regard to irregularities in the selection process and enquiry was directed.

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An enquiry was conducted by the Committee consisting of six persons. The Chairman of the Committee was Associate Dean. The Committee came to the conclusion that there was no favoritism. The petitioner is selected for the post of J. R. A. (Agronomy) and the father of the petitioner is concerned with the subject and the post of anatomy.

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The Committee has concluded that the father of the petitioner was concerned with the selection process for the post of anatomy, had not interfered with the selection process for the post of J. R. A. (Agronomy) the post on which the petitioner was selected. The enquiry committee observed that the stay granted to the appointment of the petitioner deserves to be vacated/lifted. The enquiry committee submitted its report in regional language. The extract contained in the said report is reproduced below :

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varhe fu.kZ; xSjizdkjk fo"k;hP;k pkSd'khvarh ?ks.;kr ;kok	pkSd'kh vgokykps voyksdu djrk Jh- fHkdkth ikyoh ;kaps ekdkZae/;s pkSd'kh vgokykr lfoLrj fo'ys"k.k dsysizek.ks R;kr Jh- psru ikyoh ;kaph fuoM la'k;kLin vls uewn dsys vkgs- brj 2 mesnokjkaP;k fuoMhckcr v'kk izdkjps lfoLrj fo'ys"k.k dsysys ukgh- ijarq pkSd'kh vgokykrhy eqnnk dz-4-2 aMkW- Hkk:M ;kaph d`f"k ouLirh 'kkL=krhy fo"k; rK Eg.kwu dsysyh fuoM o Jh- ikyoh] mi dqylfpo ¼iz'kklu½ ;kapk fuoM izfdz;srhy lgHkkx ;keqGs ifjfu;e 135 e/khy rjrqnhaps mYya?ku >kysys vkgs vls ueqn dsys vkgs- rlsp eqnnk dz- 4-4-3 e/;s mijksDr frUgh mesnokjkaps fuoMhps vuq"kaxkus ifgY;k 5@10 mesnokjkauk feGkysY;k xq.kkapk o 'kS{kf.kd vgZrsckcrpk rDrk pkSd'kh vgokyke/;s ifjf'k"B&17 e/;s tksMysyk vkgs- lnjgw ekfgrh o:u mDr rhugh mesnokjkauk feGkysys xq.k o 'kS{kf.kd vgZrrk igkrk iz'uif=dk QqVysyh vlY;kps ukdkjrk ;sr ukgh- vlk fu"d"kZ uewn dsysyk vkgs- rlsp MkW- vkuan pobZ ;kapk fuoM izfdz;sr lgHkkx ulY;kps pkSd'kh vgokykr fnlwu ;sr ukgh vlsgh ueqn dsysys vkgs- rFkkfi] dfu"B la'ks/ku lgk¸;dkaP;k use.kwdk fu;fer djrkuk mijksDr 3 vf/kdk&;kaps ukrsokbZdkaps use.kwdk fu;fer dj.;kr vkysY;k ukghr- use.kwdk LFkfxr vkgsr- ;kckcr rdzkjhr rF; vk<GY;kl R;kaP;k fu;qDrhl LFkfxrh ns.;kr ;koh] ;k mesnokjkaP;k fu;qDrhP;k varhe fu.kZ; xSjizdkjk fo"k;hP;k pkSd'kh varh ?ks.;kr ;kok] vls pkSd'kh vgokykr uewn dsys vkgs- R;keqGs izLrqr izdj.kh pkSd'kh iw.kZ >kysuarj mijksDr mesnkokjkaP;k fu;qDrhckcr fu.kZ; ?ks.;kr ;sbZy-	¼d½ dq-Lokrh jkolkgsc Hkk:M MkW-jkolkgsc okeujko Hkk:M ,e-,l-lh- ¼d`f"k½ foHkkx izeq[k ¼ouLirh 'kkL=½<br>eqyxh<br>pkSd'kh vgokykP;k voyksdukuarj vls fnlwu ;srs dh]<br>1- Jherh iq"ik d`".kjko ckjaxs ;k MkW-vkuan ek:rh pobZ ;kap;k iRuh vkgsr- MkW- pobZ ;kapk fuoM izfdz;se/;s izR;{k lgHkkx ulY;kus R;kaP;k iRuhP;k fu;qDrhl fnysyh LFkxhrh mBfo.;kl gjdr ukgh vls okVrs- 2- MkW- Hkk:M ;kaP;k eqyhph fuoM d`f"kfo

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(10) WP No.5135/2016

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The enquiry committee concluded that the father of the petitioner was a part of selection process for anatomy subject and the petitioner is selected for the agronomy subject. As such the stay to the appointment order be vacated/lifted.

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It appears that upon conclusion of enquiry, the enquiry committee found that the father of the petitioner did not interfere with the selection process for the post of J. R. A. (Agronomy). As such the order of stay was directed to be vacated. Except the petitioner and other two candidates, other candidates were allowed to join and are in service.

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As the enquiry committee did not found any irregularity in the selection process of the petitioner and the petitioner was also issued with the appointment order, there was no reason for the Vice Chancellor to cancel the selection of the petitioner. The Vice Chancellor of the respondent/university under its order dated 07.12.2017 cancelled the appointment order of the petitioner referring to Statute No. 135 of the Statute 1990. Statute 135 reads thus :

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“Statute 135. Canvassing to disqualify candidates.—

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Any attempt on the part of a candidate or his relative or friend to enlist support by direct or indirect method for his application for appointment to any of the posts in the university services shall disqualify the candidate for being appointed to the post”.

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(11) WP No.5135/2016

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The enquiry committee has found that father of the petitioner has not interfered with the selection of the petitioner on the post of J. R. A. (Agronomy) and that father of the petitioner was concerned with selection process of anatomy subject, nor there is any evidence found that the father of the petitioner either directly or indirectly attempted to influence the selection process. There was no reason for the Vice Chancellor to disqualify the petitioner on the ground that the father of the petitioner ever made an attempt to support the petitioner for appointment. The order of the Vice Chancellor referring to Statute 135 would be against the report of enquiry committee.

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We need not dilate as to whether the petitioner on 02^nd August, 2012 had joined the post or not. Both the parties are making rival claims. The petitioner claims to have joined the service on 02.08.2012. The same is disputed by respondents, however, same would not have relevance in the present matter.

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The another contention of the respondents is that, now the petitioner cannot be accommodated, because the position of the posts has changed. The advertisement for the recruitment of Junior Research Assistant was issued on 07.12.2011. The posts of J. R. A. were to be 100% filled in by nomination. Subsequently, the Executive Council of the university in its meeting dated 04.08.2014 passed a resolution and it took a decision that 25% posts of the J. R.

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(12) WP No.5135/2016

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A. are to be filled in by promotion. There are total 37 sanctioned posts of J. R. A. in the discipline of Agronomy and as per ratio of 75 : 25, 28 posts are to be filled in by nomination and as on date out of total 28 posts, 25 posts from nomination quota are filled in and there is no clear vacancy for the petitioner from reserved category. The petitioner having been selected from the Scheduled Caste category.

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The Apex Court in a case of Y. V. Rangaiah : State of Andhra Pradesh Vs. J. Sreevivasa Rao, reported in (1983) 3 SCC 284 has observed as under :

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“The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of SubRegistrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules”.

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The petitioner was already appointed and appointment order was issued to the petitioner on 01^st August, 2012 on a clear vacant post after undergoing selection process. The enquiry committee did not find selection of the petitioner to be irregular or in violation of any statute. The Executive Council of the respondent, subsequently in the year 2014 had taken a decision to fill in 25% of the posts of J. R. A. by promotion and 75% posts by nomination.

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(13) WP No.5135/2016

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The said decision would not affect the right of the petitioner. The petitioner was already appointed on clear vacant post. The appointment was not cancelled, but was only stayed, when the new rule of filling in 25% of posts by promotion came into existence. In view of that, the petitioner will have to be considered on the basis of the post as admissible and available as on the date the vacancies had occurred on which the petitioner was appointed.

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The order cancelling the appointment of the petitioner as a J. R. A. (Agronomy) also does not state any reasons. Such an order bereft of any reasons cannot be sustained. The respondents have in affidavit suggested that the appointment order of the petitioner is cancelled pursuant to statute 135. The respondents are not entitled to support the reasons of the impugned order by way of affidavit. However, the said reasons furnished in the affidavit for cancelling the appointment of the petitioner as per Statute 135 of Statute 1990 are also erroneous and against the finding of the Enquiry Committee.

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In the light of the above, the impugned order cancelling the appointment of the petitioner is quashed and set aside so also the order of stay to the appointment order of the petitioner stands set aside. The petitioner shall be allowed to resume her duties on the post of Junior Research Assistant (Agronomy) as already appointment order was issued to the petitioner. The appointment of

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(14) WP No.5135/2016

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the petitioner shall be counted from the date of appointment that is 01.08.2012, however, we are not inclined to award back wages to the petitioner from 01.08.2012 till the date of joining. The respondents shall allow the petitioner to join duties within a period of fifteen days from today. The writ petition is accordingly allowed in above terms. No costs.

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( SUNIL K. KOTWAL) ( S.V. GANGAPURWALA) JUDGE JUDGE

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vdd/

Swati Raosaheb Bharud v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Swati Raosaheb Bharud v. the State of Maharashtra and Others

Case brief

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What did the court decide?

What the court decided

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