Quashed

Prashant Shyam Sapkale v. the State of Maharashtra and Anr.

Bombay HC9 Mar 2018WP/5911/2012

Case brief

AI extract

What is this about?

Writ petition challenging Maharashtra Administrative Tribunal dismissal of petitioner's application for reinstatement as police constable. Court quashed Tribunal order on the technical ground that it failed to consider a subsequent 2011 amendment granting more chances, remitting the matter to Tribunal.

What did the court decide?

Quashed the impugned Judgment and order dated 11.6.2010 passed by the Maharashtra Administrative Tribunal. Granted liberty to file a fresh Original Application raising the ground of amendment to recru

Prashant Shyam Sapkale Vs the State of Maharashtra and… — Service and Employment | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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WRIT PETITION NO.5911 OF 2012

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Shri Prashant Shyam Sapkale,
Age-35 years, Occu:Nil,
R/o-Behind Bunglow No.1,
Gopalnagar, Dhule.

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...PETITIONER

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 VERSUS

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1) The State of Maharashtra,
 Through its Secretary,
 Home Department,
 Mantralaya, Mumbai-32,

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2) The Commandant,
 Stare Reserve Force,
 Group No.6, Dhule.

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...RESPONDENTS

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...

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 Mr.M.R. Wagh Advocate for Petitioner.
 Mrs. V.S. Chaudhari, A.G.P. for Respondent
 Nos. 1 and 2.

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...

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WITH

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 CIVIL APPLICATION NO.3569 OF 2015
 IN

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 WRIT PETITION NO.5911 OF 2012

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1) Mr. Wahab Masjid Shaikh, Age-26 years, Occu:Nil, Dhule,

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2) Mr. Kishor s. Karan,
 Age-43 years, Occu:Nil,
 At Post-Dhule,
3) Mr. Abdul Wahid Shaikh Mohammad,
 Age-45 years, Occu:Nil,
 Bhoi Galli, Devalgaon Raja,
 Ward No.12, Dist-Buldhana.
...APPLICANTS
 (Proposed Intervenors)
 VERSUS
1) The State of Maharashtra,
 Through: Secretary,
 Home Department,
 Mantralaya, Mumbai-32,
2) Shri Prashant Shyam Sapkale,
 Age-35 years, Occu:Nil,
 R/o-Dhule.
...RESPONDENTS
 ...
 Mr. Santosh B. Narwade Advocate for Applicants.
 Mrs. V.S. Chaudhari, A.G.P. for Respondent
 No.1.
 Mr.M.R. Wagh Advocate for Respondent No.2 -
 Original Petitioner.
 ...
CORAM: S.S. SHINDE AND
 S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 26TH FEBRUARY, 2018

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 DATE OF PRONOUNCING JUDGMENT: 9TH MARCH, 2018

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JUDGMENT [PER S.S. SHINDE, J.]:

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1.This Petition under Article 226 of the
Constitution of India is filed with following
substantive prayers:

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"(b) Quash and set aside the order dated
11.06.2010 passed by the Honourable MAT,
Aurangabad Bench in OA No.665/2001 and
also the discharge/ dismissal order passed
by the respondent dated 23.2.2001 and hold
and declare the same to be bad in law.

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(c) It be held and declared that the
Govt. orders No.RCT032000/CR 292/POL-5-A
dated 17.7.2000 is applicable to the
petitioner and he is entitled to get
additional chance to appear and pass the
examination. The petitioner be reinstated
in service till final disposal of this
Petition."

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2.The brief facts giving rise to this
Petition are as under:

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A) In November, 1997 after his due and proper

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selection depending upon qualification and
eligibility, the Petitioner was selected by

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Respondent No.2 as a police constable vide order
dated 24th November, 1997. In the appointment
order certain conditions are enumerated. It is
mentioned that his services could be terminated
without giving any notice and his appointment was

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subject to verification of his antecedents in
respect of character, conduct and verification of

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details mentioned in the attestation form. The
Petitioner joined the services with Respondent
No.2 in December, 1997 at Dhule. He underwent

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training of Advance Training Course along with
other similarly selected and appointed constables.
He was then sent to Daund for further training

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where he remained to complete the said training
till 20th January, 1999. After completion of
training the Petitioner was not allowed to appear
for the examination, and the Petitioner and other

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40 candidates were asked to go to Dhule and to
surrender his kit. After going to Dhule, all of a
sudden on 5th February, 1999, the Petitioner was

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served by termination order by Respondent No.2. No
notice was issued to the Petitioner nor hearing
was given to him before issuance of such
termination order.

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B)It is the case of the Petitioner that he
along with two others preferred O.A. No.191 of
1999 before the Maharashtra Administrative
Tribunal (in short "MAT"), Bench at Aurangabad. On
18th June, 1999 the Division Bench of the MAT
directed to reinstate the Petitioner and others,
admitting the Original Application. It is
submitted that the Principal Bench of MAT at
Mumbai also directed reinstatement of similarly
placed candidates, termination being violative of

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Explanation 4 to Rule 3(2) of Bombay Police
(Punishment & Appeal) Rules, 1956. Pursuant to the
order of the MAT, the Petitioner was reinstated.
It is submitted that again on 3rd October, 2000

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the Petitioner was served with another termination
order on the ground that his services were no more

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required. The Petitioner challenged the said

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termination order by filing O.A. St. No.2857 of
2000 before the MAT, Aurangabad Bench. On 5th

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January 2001, the order withdrawing Petitioner's
discharge order was placed before the MAT and a
statement was made on behalf of the Respondent
that Petitioner was reinstated in service. In view
of said facts the MAT was pleased to dispose of
the Original Application St. No.2857 of 2000,
filed by the Petitioner.

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C) The Respondent, on 23rd February, 2001 passed
order withdrawing order dated 18th December, 2000

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of reinstatement of the Petitioner and again
discharged the Petitioner. The ground for such
withdrawal was shown to be decision of the
Government to give one more chance being
restricted to the constables working in Police
Department, and same was not applicable to the
case of the Petitioner. It is submitted that the
Petitioner and one Mr. D.G. Sharma, a similarly
placed candidate were given one more chance to
appear for the examination by the Dy. Inspector

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General of Police, SRPF, Pune. However, the said
decision of giving third chance was withdrawn
subsequently. It is submitted that said Sharma is
still in service and the Petitioner is subjected
to discharge.

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D)It is submitted that the Petitioner was
again compelled to file Original Application
bearing No.665 of 2001 before the learned MAT,
Aurangabad Bench. Challenge to the action of
Respondent No.1 withdrawing the benefits was thus:

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(i) One months notice was not given to the
Petitioner,

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(ii) There was violation of principles of
natural justice,

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(iii) The action was illegal, arbitrary
and against equity and good conscience,

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(iv) The action was discriminatory. There
cannot be distinction amongst Police Force
and SRPF, bot being under administrative
control of one and the same department
i.e. Respondent No.1.

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E)It is submitted that the Division Bench

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of learned MAT was pleased to dismiss the Original
Application on 11th June, 2010 with a only reason
that benefit wrongly given by Government to one
other employee cannot be a basis to claim such
benefit. Hence this Petition is filed by the
Petitioner challenging the order passed by the
learned MAT in Original Application No.665 of
2001, dated 11th June, 2010.

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F)By way of amendment, it is submitted by

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the Petitioner that on 14th December, 2011, the
Special Inspector General of Police (State Reserve
Force), Nagpur has caused a communication to the
Commandant State Reserve Police Force, Group No.6,
Dhule, wherein it is specifically stated that as
per Government orders from Home Department No. RTR
3200/CR-147/Police-5 dated 12th April, 2001, in

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Rule 11 of the Recruitment of Police Constable
Rules 2000, instead of 'two chances', the words
'three chances' be inserted/incorporated. Further

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instructions are given that necessary action be

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taken on the application submitted by the
Petitioner on 20th September, 2011 as per the
orders of the Home Department dated 12th April,
2001. Thus it is clear that in the case of the
Petitioner, instead of three chances permissible
to him, only two chances are given and his
services came to be terminated illegally. The
above communication is dated 14th December, 2011
and the impugned order passed by the MAT is dated
11th June, 2010. It is submitted that, therefore,
the learned MAT had no occasion to consider the

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said communication which is very much in favour of
the Petitioner.

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G)It is further submitted that there is yet
another communication from the Government through

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the Home Department, addressed to the Additional
Director General of Police, SRPF, Mumbai dated 7th

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October, 2011 i.e. after the impugned order passed
by the learned MAT on 11th June, 2010. In this
communication, instructions are given to the

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addressee that no specific opinion/recommendations
be given as the Petitioner has filed the Court
case. The subject mentioned in this communication
is regarding grant of third chance to appear for
examination and also there is reference of name of
the Petitioner. Thus it is clear that Respondents
are acting with mala fide intention, and instead
of accepting the truth that Petitioner deserves to
be granted third chance to clear the examination,
the impugned order of termination cannot sustain
legally. It is further submitted that the decision
to terminate the services of the Petitioner was
taken at secretary level and hence it smells of
mala fide, as the secretary had no reason to take
interest in the termination of services of the
constable.

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3.Learned counsel appearing for the

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Petitioner, referring to the grounds taken in the
Petition, submitted that the order passed by the
learned MAT is unsustainable in law being
misconstrued and misconceived. Learned Members of

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the MAT failed to consider that once the benefit
of concession is given to employee, it cannot be
arbitrarily withdrawn by subsequent action unless
there are cogent and justifiable reasons. Learned
counsel further submitted that learned MAT failed
to give finding on the point that if two chances
are granted, why third chance is not granted to
the Petitioner as has been granted to similarly
placed person, namely Mr. Sharma. Learned counsel
invites our attention to the communication dated
14th December, 2011, whereby amendment is
introduced to Rule 11 of the Recruitment of Police
Constable Rules, 2000, and instead of 'two
chances' the words 'three chances' are
incorporated. Learned counsel submits that as this
amendment was introduced on 14th December, 2011
and the impugned order was passed by the learned
MAT on 11th June, 2010, the learned MAT had no
occasion to consider the said amendment to the
recruitment rules. He therefore, submits that the
Writ Petition deserves to be allowed.

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4.On the other hand, learned A.G.P. invites

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our attention to the reply filed on behalf of
Respondent No.2 and submits that after the
appointment the Petitioner was sent for training
but unauthorizedly the Petitioner remained absent

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from training on two occasions, firstly for the
period from 25th April, 1998 to 29th April, 1998
and again from 11th June, 1998 till 16th June,
1998. Considering overall conduct of the
Petitioner during the course of regular training,

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the final examination body did not allow him to
appear for final examination. As Petitioner had
remained absent from initial and basic training

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and thereby showed disinterest, therefore his
services were brought to an end vide order dated
5th February, 1999. As per order passed by learned

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MAT in Original Application No.191 of 1999, the
Petitioner was reinstated in service. Immediately
after the reinstatement, the Petitioner was sent

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at SRPF Gr. VI Daund for regular training where he
had undergone training during the period from 1st

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November, 1999 to 18th March, 2000. Petitioner was

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tested in outdoor and written examination on 18th

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March, 2000 under the Chairmanship of Deputy
Inspector General of Police, SRPF, Pune. The
Petitioner was declared as "Failed" vide letter
dated 19th March, 2000. Therefore, the Petitioner

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was further kept as repeater at the said training
center at Daund. The Petitioner had undergone
training during the period from 20th March, 2000
to 19th July, 2000 and during the course of second
attempt, the Petitioner secured 15.5 marks out of
100 and as such he was declared as "Failed" in the
written examination vide letter dated 23rd August,

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2000. Referring to the circular dated 4th March,
1994 issued by the Special Inspector General of
Police, SRPF, Mumbai, learned A.G.P. submits that

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since the Petitioner did not clear the examination
within two attempts and declared as failed, in
view of the provisions of the said circular, the
services of the Petitioner were brought to an end
by discharging him from services vide order dated

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3rd October, 2000. Further it is submitted that
Petitioner's discharge order dated 3rd October,

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2000 was withdrawn under wrong impression that the
Government decision dated 17th July, 2000, to give
third chance to the new recruits to appear in the
examination, was applicable to the member of SRP
Force. Therefore, Respondent No.2 again passed
order dated 23rd February, 2001 withdrawing order
of reinstatement of the Petitioner and again
discharged him from service. Hence it is prayed
that the Writ Petition may be dismissed.

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5.We have considered the submissions of the
learned counsel appearing for the Petitioner and
also learned A.G.P. appearing for the State. With
their able assistance, we have carefully perused

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the pleadings, grounds taken in the Petition,
annexures thereto, amended pleadings, the reply
filed on behalf of Respondent Nos.2, annexures
thereto.

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6.We have also perused the findings

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recorded by the Maharashtra Administrative
Tribunal in the impugned order. Though we are not

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convinced to cause interference in the Judgment
and order passed by the learned MAT, on merits,
however we find considerable force in the argument
of the learned counsel appearing for the
Petitioner that communication dated 14th December,
2011, whereby amendment is introduced to Rule 11
of the Recruitment of Police Constable Rules,
2000, and instead of 'two chances' the words
'three chances' are incorporated, and as the
impugned order was passed by the learned MAT on
11th June, 2010, the learned MAT had no occasion
to consider the said amendment to the recruitment
rules.

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7.On this technical ground alone, that the
amendment to the recruitment rules was not before
the learned MAT, we quash and set aside the
impugned Judgment and order dated 11th June, 2010
passed by the Maharashtra Administrative Tribunal

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in Original Application No.665 of 2001. We grant
liberty to the Petitioner to file fresh Original
Application before the Maharashtra Administrative

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Tribunal raising the ground of amendment to the
recruitment rules, which ground was not raised by
the Petitioner in the earlier Original
Application.

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8.Rule made absolute on the above terms.
The Writ Petition stands disposed of, accordingly.

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9.In view of the order passed in Writ

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Petition, the Civil Application for intervention
also stands disposed of.

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[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

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asb/MAR18

Prashant Shyam Sapkale v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Prashant Shyam Sapkale v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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