Aher Sanjay Bajirao v. The State of Maharashtra

10. The Hon’ble Supreme Court in the case of Tej Prakash Pathak and Ors. Vs. Rajasthan High Court and Ors. (Civil Appeal No.2634 of 2013), while dealing with a matter pertaining to recruitment process, has observed that: “The ideal in recruitment is to do away with unfairness”.

11. Perusal of the advertisement i.e. the document which is annexed to the petition at page No.18 along with the typed copy at page No.18(A), would indicate that: a) Details of the newspaper on which the advertisement (purportedly dated 19.05.2015) was published, are absent. Apparently the cut out of the advertisement does not mention the date of the said advertisement. The name of the newspaper publication and the date of the publication/advertisement can be gathered, from the handwritten endorsement made by the Petitioner, which reads as “ दैनि क पुण्य गरी निद ांक १९ मे २०१५". b) The advertisement though makes a reference to various categories i.e. ST, OBC, SBC, and Open Category, however details as to whether the post advertised being a post reserved or whether the same is in the open category is not referred to in the advertisement. Pertinently, though the post advertised is one post, however the advertisement refers to production of Caste Validity Certificate. c) The qualifications referred in the said advertisement are HSC (D.Ed). No reference to the standard in which the candidate/applicant is required to teach. d) The said advertisement indicates that it had the nature of a walk in interview. Candidates were called upon to attend the interview on 01.06.2015 at 10.30 a.m.

12. This Court in the case of Smt. Pooja Yogesh Singh and Anr. Vs. The State of Maharashtra and Ors. (Writ Petition No.16128 of 2024), relying on the decisions of this Court in the case of Prakash Daulat Patil Vs. State of Maharashtra and Ors. (Writ Petition No.12826 of 2023) and in the case of Pravin Bodhu Kasbe Vs. the State of Maharashtra and Ors. (Writ Petition No.3142 of 2020) has observed in paragraph No.17 as follows: “ Employment of teachers in aided private schools in the State of Maharashtra are governed by the State Legislation i.e. MEPS Act, 1977 and MEPS Rules, 1981. Burden of payment of salary of such teachers is borne by the State Exchequer. Accordingly, such employment lies in the realm of the public employment. This Court time and again has held that the recruitment/selection/appointment of such teachers in private aided school has to be necessarily in conformity with the fundamental rights enshrined under Article 16 of the Constitution of India.”

13. An important requirement of public employment is that of transparency. Therefore, advertisement for such post must specify the required details like the qualifications and other eligibility criteria for such post, the schedule of recruitment process should be published with certainty and clarity. Such advertisement must be in a local newspaper having wide circulation in the region. The said requirements are necessary to prevent arbitrariness and further to ensure that the meritorious candidates alone will be appointed. Absence of compliance with such mandatory requirement i.e. wide publicity by way of advertisement in a local newspaper having wide circulation gives rise to backdoor appointments or appointment de-hors the rules.

14. From the records of the present case, and a perusal of the advertisement purportedly dated 19.05.2015 indicates that the said advertisement, published by the Respondent No.4 is an eye wash for the following reasons: a) No material or data is placed on record by the Petitioner to indicate the nature or circulation of the said newspaper, “दैनि क ” पुण्य गरी. Advertisement appended to the petition as Exh. C. is at page No. 18. Memo of petition is silent in the context of the name of the newspaper, or the nature of circulation of the said newspaper. Petitioner having in paragraph no.4 of the petition made reference to his appointment being under Rule 9 of the MEPS Act, the least that was expected from the Petitioner was to make averments with regard to the newspaper, its circulation and further to produce the copy of the entire newspaper and/or the entire page of the newspaper containing the said advertisement. Production of the entire newspaper in which the said advertisement was published, along with the petition was necessary. Omission in that regard appears to be willful. Name of the newspaper and the date of the publication of the advertisement is gathered from the hand written endorsement made by the Petitioner on the document at page No.18 of the petition. b) Advertisement dated 19.05.2015 is vague in the context of the eligibility criteria of the candidate. In view of such vagueness in the advertisement, the possibility of the interested/eligible candidate from the categories not applying and/or not participating in the interview is probable. c) Advertisement though makes reference to the applications being invited from various reserved categories as also from the open category, the said advertisement does not indicate whether the post advertised is for a Reserved Category or for an Open Category. Law mandates that all the post advertised should mention the category of such post. d) Advertisement dated 19.05.2015 makes a reference to requirement of Caste Validity Certificate. If the said advertisement is taken literally by a candidate, then confusion in the mind of such a candidate is bound to occur, as the said advertisement would mean that a candidate from an Open/General Candidate would be required to produce a Caste Validity Certificate. This itself in a given situation may deter a candidate from Open Category applying and participating in the selection process. The Petitioner in paragraph No.9 of the petition has stated that on the date of interview there were no candidates from the category as notified in the advertisement dated 19.05.2019 and, therefore, the Petitioner belonging to NT category came to be selected.

15. The Hon’ble Supreme Court in the case of Renu & Ors Vs District & Sessions Judge, Tis Hazari Courts and Anr. (2014) 14 SCC 50 in paragraph No.16 and 17 has observed as follows:- “ 16. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.

17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by this Court and again is “back-door appointments or appointment dehors the rules”.”

16. The Hon’ble Supreme Court in the case of State of Orissa & Anr. Vs. Mamta Mohanty (2011) 3 SCC 436 has observed in paragraph Nos. 35 and 36 as under:- “ 35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees’ Union Vs. Delhi Admn. (1992) 4 SCC 99, State of Haryana vs. Piara Singh (1992) 4 SCC 118, Excise Supdt. vs. K. B. N. Vishweshwara Rao, (1996) 6 SCC 216, Arun Tewara vs. Zila Mansavi Shikshak Sangh (1998) 2 SCC 332, Binod Kumar Gupta vs. Ram Ashray Mahoto (2005) 4 SCC 209, National Fertilizers Ltd. v. Somvir Singh (2006) 5 SCC 493, Telecom District Manager vs. Keshab Deb (2008) 8 SCC 402, State of Bihar v. Upendra Narayan Singh (2009) 5 SCC 65, and State of M.P. vs. Mohd. Abrahim (2009) 15 SCC 214.)

36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Article 14 and 16 of the Constitutions of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.”

17. The Hon’ble Supreme Court in the case of State of Bihar Vs. Upendra Narayan Singh and Ors. (2009) 5 SCC 65 dealing with the concept of “Spoils System” has observed in paragraph No.32 as under:

18. Hon’ble Supreme Court in the case of The Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K. B. N. Vishweshwara Rao and Ors. (1996) 6 SCC 216 in paragraph No.6 observed as under: “6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidate to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter employment would be available to all eligible candidates.”

19. We find that the advertisement dated 19.05.2015 was issued as an eyewash and was an attempt to give a backdoor appointment, thereby unjustly benefiting someone at the cost of others. This act of the Respondent No. 4 has denied opportunity to eligible candidate to participate in public employment and therefore, the appointment of the Petitioner being made to a vacancy which was not widely advertised has violated Article 16 of the Constitution. Respondent No.4 has systematically avoided competition in matters of public employment. This Court in the case of Smt. Pooja Yogesh Singh and Anr. Vs. The State of Maharashtra and Ors. (supra), in the case of Prakash Daulat Patil Vs. State of Maharashtra and Ors. (supra) and in the case of Pravin Bodhu Kasbe Vs. the State of Maharashtra and Ors. (supra), has frowned on the practice of managements publishing advertisement in unknown local dailies and / or dailies having no circulation. The said act of the Respondent No.4 is, therefore, required to be held as arbitrary and unfair.

20. Another aspect which requires a mention is the document at page No.19 (Exh.D) makes a reference to the roster/reservations of vacancy. The said document is dated 16.01.2016, whereas, the advertisement is dated 19.05.2015. This is yet another ground which creates doubt in the procedure adopted by the Respondent No.4 in the recruitment process.

21. Respondent Nos. 1, 2 and 3 have raised an issued with regard to the delay of six years in submission of the proposal for approval of appointment of the Petitioner. The Respondents in their affidavit in reply have raised the issue of the conduct of the Petitioner in the context of the false statements made by the Petitioner. The Respondent No.2 in para 4(A) of the affidavit-in-reply has stated that though the proposal for approval of the Petitioner bears outward No.126/2015-16 dated 01.08.2015, the same was received by the Office of the Respondent No.2 on 22.02.2021. Respondent No.2, therefore, contends that the Petitioner has indulged in backdating the outward number of the proposal. This again creates a doubt about the fairness/transparency that would be expected in selection process of public employment. The Respondent No. 4 in the present case has systematically avoided competition, in matters pertaining to public employment. All these factors according to us has resulted in unfairness.

22. Having held that the selection process as undertaken by the Respondent Nos. 4 Management is unfair, the predicament before us, is whether the Petitioner who has put in service for almost ten years, since his appointment w.e.f. 15.06.2015, should be displaced from service, for the reasons solely attributable to the Respondent No.4. Lapses as observed hereinabove are by the Respondent No.4, which lapses are in the nature of irregularities. It is not the case of the Respondent No.2 that the Petitioner was ineligible for being appointed as an Assistant Teacher. Similarly, the Petitioner had the requisite qualifications as were prescribed in the aforesaid advertisement.

23. The issue thus is whether for the lapse and irregularities committed by the Respondent No.4, it would be proper to uproot the Petitioner from service, at this stage. This would obviously cause prejudice not only to the Petitioner but would have a cascading effect on the life of the Petitioner as well as family of the Petitioner.

24. This is a Court of equity and while passing orders, this Court has to balance the equities. Endeavor of this Court has always been with the said view in mind.

25. In the case of Areeb Hasan Ansari Najeeb Hasan Ansari Vs. State of Maharashtra, Secretary Medical Education and Drugs Department and Anr. in Writ Petition No.1771 of 2023 and a batch of other matters, the Division Bench of this Court of which one of us was a member (Ravindra V. Ghuge J.), was dealing with the cancellation of admissions of students to the graduation courses of BHMS/BAMS/BUMS/BPTH/B.Sc., & Nursing. In the said case this Court found the admissions of the students were made in an irregular manner de-hors the rules, reasons being attributable to the Managements. This Court after realizing the plight of the students in the said case, instead of canceling the admissions, in the interest of justice as a one time measure regularized the admissions of the students, by penalizing the Managements of the colleges.

26. Considering the Petitioner before us is in service as on date, since 15.06.2015, that the Petitioner had no role in the manner/conduct of the selection process and further the Petitioner being qualified in terms of the criteria as referred to in advertisement issued by the Respondent No.4, in the facts and circumstances of the present case, we are inclined to follow the same course as was adopted in Areeb Hasan Ansari Najeeb Hasan Ansari Vs. State of Maharashtra, (supra).

27. The Respondent No.4 being entirely responsible for the irregularities committed in the selection process, which in the facts and circumstances can be termed to be mischievous, we find that, disturbing the employment of the Petitioner who is in service for the last about 10 years, would not be justified and the same would result in prejudice being caused to the Petitioner. The above said factors are sufficient reasons to impose heavy cost on the Respondent No.4 for the irregularities. Taking into account the said facts and circumstances, by way of cost, Respondent No.4 is directed to deposit an amount of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand Only) within 30 days in this Court.

28. Upon such deposit, the Registry of this Court shall transmit the said amount in equal proportion i.e. Rs. 50,000/- (Rupees Fifty Thousand Only), each to the following institutions/organizations:a) Children Aid Society, Mumbai Bank Name:UCO BANK Branch – Matunga IFSC: UCBA0000237 b) In Defense of Animals Bank Name:Bank of Baroda Branch – Chandavarkar Road Branch, Matunga IFSC: BARB0CHANDA (‘0’ is a digit not alphabet) MICR No.: 400012046 c) Girija Welfare Association Bank Name:RBL BANK Branch – Kharghar IFSC: RATN0000078 d) K.E.M. Hospital Bank Account of Hospital: K.E.M. Hospital, Poor Box Charity Fund Bank Account Number of Hospital: 99350100000877 (S.B.) Bank and Branch: Bank of Baroda, Parel Branch Address, Tel. No., Fax No. and e-mail of the concerned Bank: Bank of Baroda, Madina Manzil, 88, Ambedkar Road, Mumbai – 400 012, Maharashtra, 022-24131112/24135820, dbpare@bankofbaroda.com MICR Code Number: 400012246 IFSC Number: BARB0DBPARE (5TH Letter is Zero) PAN: AAATK3087D Type of Account: Saving A/C e) Bar Council of Maharashtra and Goa Bank Name: State Bank of India Branch – Mumbai Main Branch IFSC: SBIN0000300

29. We caution the Respondent No.4 that the Respondent No.4 shall not recover the said amount from the Petitioner.

30. For the reasons herein above, this Writ Petition is allowed. We set aside the impugned order dated 24.11.2023 and direct the Respondent No. 2 to grant approval to the appointment of the Petitioner as Shikshan Sevak w.e.f. 15.06.2015 till 14.06.2018 and thereafter as Assistant Teacher, in accordance with law, within a period of 30 days from today.

31. The Petitioner has stated that the Petitioner is TET passed, however the same is not verified. We therefore, direct the Competent Authority to verify the TET certificate of the Petitioner within 30 days from today.

32. The Respondent No. 2 is hereby directed to enter the name of the Petitioner in the Shalarth system and issue Shalarth Identity to the Petitioner, by strictly complying with law.

33. The Respondent No.4 is directed to deposit the amount of Rs.2,50,000/- within 30 days, failing which the Respondent No. 2 to take steps to recover the said amount from the Respondent No. 4 as arrears of land revenue. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)