2004(2) ALL MR 648
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

H.L. GOKHALE AND F.I. REBELLO, JJ.

Bhai S. Patil & Ors.Vs.State Of Maharashtra & Anr.

Writ Petition No.2272 of 2003

13th February, 2004

Petitioner Counsel: Mr. N. V. BANDIWADEKAR
Respondent Counsel: Mr. R. D. RANE,Mr. NITIN PRADHAN

Education - Shikshan Sevaks as Primary Teachers - Recruitment - Petitioners called for interview - Also undertakings in specified format taken from them - Do not give them right to be appointed - D.Ed. Exam marks of all petitioners lesser than last candidate in waiting list - Since their names did not figure in select List or Waiting List, their claim for appointment could not be entertained.

The Government Resolution dated 10th March, 2000 read with the subsequent Government Resolution dated 21st October, 2002 require the selection body to call the names of the candidates from the Employment Exchange or various authorities mentioned in Clause 13(2) of the Annexure "A" to the Government Resolution dated 10th March, 2000. The names of candidates are to be called 5 times the figure that is required to be filled in. After these names are called 1 1/2 times of the seats to be filled is the figure concerning the candidates who were to be called for interviews. These persons are to be listed in descending order on the basis of the marks obtained by them in the D.Ed. Examination. Clause 7 of this Annexure states specifically that the persons concerned were to be called for a formal interview. This clause makes it abundantly clear that there will not be any specific marks for this formal interview and that the selection of the candidates will be only on the basis of the marks obtained by the candidate in the D.Ed. Examination. Clause 8 of the Annexure thereafter provides that the selection list will be prepared which will be corresponding to the number of posts to be filled. Over and above a list of 10% names is to be prepared by way of waiting list. The petitioners claimed that since they were invited for interview and undertaking in specified format was taken from them, they were entitled to be appointed. The marks of all the petitioners in D.Ed. Exam, were lesser than the last candidate in the wait list. In view of this factual position the petitioners cannot claim any right on any post. Here calling for interview and asking them to submit undertakings cannot give them any right in as much as the candidate concerned did not figure at all in the select list or in the wait list. [Para 8,12,13]

JUDGMENT

H. L. GOKHALE, J.:- All these three Writ Petitions are filed by candidates whose names were forwarded by the Employment Exchange for being considered by the respondent No.2-Thane Zilla Parishad for the posts of Shikshan Sevaks as Primary Teachers. This was as per Government Resolution dated 10th March, 2000. The case of all these petitioners is that they were selected for these posts since according to their information their names figured in the select list of August, 2000. The submission is made on the basis of an undertaking which was taken from them. This undertaking is as per the form given in Annexure "A" to this Government Resolution. These petitions, therefore, seek an order that appointment orders be issued to all the petitioners in these three Writ Petitions.

2. As far as Writ Petition No.2272 of 2003 is concerned, it came up for consideration before the Division Bench presided over by the Honourable Chief Justice and Justice Chandrachud on 24th March, 2003. The petitioners pressed for an interim order that no new appointments be made unless the select list prepared earlier is exhausted first. The court passed the order that the process of interviews may go on, but no final orders of appointment be made.

3. Writ Petition No.2272 of 2003 subsequently came up before the Bench presided over by Justice A. P. Shah and Justice Chandrachud on 17th July, 2003 when the Division Bench admitted the petition and directed that in view of the fact that the petitioners were already selected it would be appropriate that they be appointed subject to final outcome of the petition. This Writ Petition is filed by 20 candidates.

4. As far as Writ Petition No.3910 of 2003 is concerned, it came up for consideration before the Court presided over by the Honourable Chief Justice and Smt. Vijaya Tahilramani on 26th June, 2003 when the Division Bench admitted it and passed an order that it will be open to the Zilla Parishad to appoint other persons after the petitioners are given appointment orders. It is relevant to note that there are 10 petitioners in Writ Petition No.3910 of 2003.

5. As far as Writ Petition No.4851 of 2003 is concerned, this Writ Petition came up for consideration before the same Bench on 7th August, 2003 when the Division Bench directed by way of ad-interim relief that the process of selection and appointment of the candidates may go on, but no final appointments be given to the other candidates.

6. The effect of what is stated above is that the 10 petitioners in Writ Petition No.3910 of 2003 and 20 petitioners in Writ Petition No.2272 of 2003 could be considered for appointment pending the decision on these petitions. Mr. Pradhan, learned Counsel appearing for the Zilla Parishad informs that since the appointments of other candidates selected in August/September, 2000 on some 1194 posts were getting stuck up, the Zilla Parishad proceeded to appoint these 30 persons also though according to the Zilla Parishad they were not at all figuring in the list of selected candidates or even the wait listed candidates. He pointed out that some 1175 vacancies arising in the subsequent year are not filled in view of the pendency of these petitions. He has, therefore, moved Civil Application No.170 of 2004 in Writ Petition No.2272 of 2003 to vacate the interim relief granted as pointed out above. He prays that interim order passed in the other two petitions may as well be vacated.

7. Vacating of the interim order would make the petitions infructuous. On the other hand very large number of posts of primary teachers are not being filled due to the pendency of these petitions. Apart from the jobs of thousands of young persons, it is affecting the primary education in the rural areas. Therefore, by consent of the parties, we have heard the petitions finally. Replies filed by the Zilla Parishad and the government are already on record. We have heard all the petitions together and have permitted the parties to refer to documents and replies filed by them in one matter while dealing with the other. This is because the issues involved in all of them are the same. Mr. Bandivadekar appeared for the petitioners in all the matters. Mr. Pradhan for the Thane Zilla Parishad and Mr. Rane, Additional Government Pleader for the State Government.

8. The petitioners rely upon the Government Resolution dated 10th March, 2000 read with the subsequent Government Resolution dated 21st October, 2002. We have gone through these two resolutions. The resolutions require the selection body to call the names of the candidates from the Employment Exchange or various authorities mentioned in Clause 13(2) of the Annexure "A" to the Government Resolution dated 10th March, 2000. The names of candidates are to be called 5 times the figure that is required to be filled in. After these names are called 1 1/2 times of the seats to be filled is the figure concerning the candidates who were to be called for interviews. These persons are to be listed in descending order on the basis of the marks obtained by them in the D.Ed. Examination. Clause 7 of this Annexure states specifically that the persons concerned were to be called for a formal interview. This clause makes it abundantly clear that there will not be any specific marks for this formal interview and that the selection of the candidates will be only on the basis of the marks obtained by the candidate in the D.Ed. Examination. Clause 8 of the Annexure thereafter provides that the selection list will be prepared which will be corresponding to the number of posts to be filled. Over and above a list of 10% names is to be prepared by way of waiting list.

9. Mr. Bandivadekar, learned Counsel appearing for the petitioners submitted that the moment these candidates are called for interview they have a right of appointment and they have to be offered job in the subsequent round even if they are not selected on an earlier occasion. He submits that this process has to be continued until the first select list is exhausted. This submission is made on the basis of clause 1 and clause 3 of the subsequent Government Resolution dated 21st October, 2002. We have gone through these clauses and even these two clauses clearly state that it is the persons who are from the select list (and not all those called for interviews) who were to be first called for filling the vacant posts, if any. Clause 1 of the G.R. dated 21st October, 2002 when translated from Marathi reads as follows :-

"Those districts which have followed clause 13 of Annexure "A" of the Govt. decision dated 10th March, 2000 and have completed the process of preparing the select list as per the merit, by calling the names of the eligible candidates from the Officer of District Employment and self employment Office, District Social Welfare Office, Project Officer (Integrated Tribal Development Project) and Commissioner (Tribal Project), should first issue appointments on the vacant posts of primary teacher as per the select list."

10. A question may arise as to whether the persons who are kept on the waiting list can also be considered as those in the select list. Mr. Pradhan appearing for the Zilla Parishad and Mr. Rane, Additional Government Pleader both have opposed this construction and have submitted that the select list will have to be confined to the persons on the select list and the persons from the wait list cannot be considered as part of select list. However, we thought that before we examine this submission it would be better to examine the select list as well as the wait list. This is because the occasion to decide the question would arise only if the petitioners figured at least in the wait list.

11. The Zilla Parishad has filed an affidavit in reply of one Chandrakant Sitaram Kamble, Deputy Education Officer in Writ Petition No.3910 of 2003. In that affidavit it is stated in para 7 that in all 1194 posts were to be filled in the particular year in April, 2000. Out of these posts 1069 were the posts meant for Marathi, 72 for Urdu, 23 for Gujrathi, 20 for Hindi and 10 for Telgu. The affidavit thereafter indicates that as per requirement of the Government Resolution 1 1/2 times number of candidates were called for interview. Thus the number of candidates called for interview were 1606 for Marathi, for Urdu 37, for Gujrathi 37, 33 for Hindi and 10 for Telgu. The candidates for the other languages groups other than Marathi however depended on the availability of candidates. Mr. Pradhan has tendered to the Court the list of selected candidates for all the categories as also who were on the wait list.

12. Mr. Bandivadekar submitted that the petitioners were having another list which they had obtained earlier from the Zilla Parishad. Since the list given by Mr. Pradhan was an authentic one, there was no occasion to look into the one given by Mr. Bandivadekar. Yet we looked into the list tendered by Mr. Bandivadekar. We also looked into the authentic lists given by Mr. Pradhan. The marks obtained by all the candidates including the petitioners are same as per both the lists. Having gone through both the lists and the marks obtained by these candidates also it was clear that the marks of all the petitioners were lesser than the last candidate in the wait list. In view of this factual position infact there was no occasion to go into the controversy as to whether those who were in the wait list should be considered along with the selected candidates in as much as the petitioners could not figure even in the wait list.

13. In view of this factual position the petitioners in all these 3 petitions cannot claim any right on any post. All that had happened is that they were called for interview. The above referred affidavit in reply clearly states that it was a mistake on the part of the respondents to have called upon the candidates coming for interviews to first give the undertaking in the specified format. This led to their forming an impression that they were selected and, therefore, the undertaking was being taken from them. It is, however, submitted that mere asking the candidates that the undertakings be submitted cannot give any right in as much as the candidate concerned did not figure at all in the select list or in the wait list.

14. We make it clear that in view of the above factual position we are not going into the question as to whether the persons in the wait list can also be considered along with others in the select list under clause 1 of the subsequent Government Resolution of the State Government. As stated above the fact remains that the petitioners do not figure in either of these lists. That being the position they cannot claim any right for any appointment. The grievance made by the Zilla Parishad is legitimate that in view of the stay granted by this Court the appointment of the subsequent batches have been stuck up. In fact the reply states that there were 628 subsequent vacancies which were not filled on the date of filing of the affidavit, Mr Pradhan informs that now the figure has gone upto 1175.

15. In view of this factual position we do not find any merit in either of these three Writ Petitions. All the three Writ Petitions will, therefore, stand dismissed and interim order therein will stand vacated. The respondent No.2-Zilla Parishad will relieve the petitioners who have been appointed in view of the order passed by this Court. However, considering the fact that they have worked in the meanwhile no recovery will be made with respect to the salary which is paid to them. It will be open to the Zilla Parishad now to proceed to fill the posts in accordance with law and the Government Resolution. Rule discharged in all the three Writ Petitions. In view of this, no separate order is necessary in Civil Application No.170 of 2004. All the Civil Applications also stand disposed of.

16. Although all these petitions are dismissed, Mr. Bandivadekar points out that as far as petitioner No.8 i.e. one Namdeo Balu Bangar in Writ Petition No.4851 of 2003 is concerned, he is a physically handicapped person and belongs to O.B.C. Considered from that point of view he would be entitled to an appointment. Mr. Pradhan is fair enough to accept this submission. He further states that an appointment order will be issued to him by the end of February, 2004.

17. Mr. Bandivadekar, learned Advocate for the petitioners applies for continuation of the interim order. For the reasons which we have stated earlier, we can not entertain this request. Request is rejected.

All parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary of this Court.

Petition dismissed.