Sachin Sahebrao Patil and Others vs State of Maharashtra and Others

These petitions have been filed by project affected persons whose services have been terminated pursuant to the directions passed by this Court in Writ Petition No. 7472/2007 Sunil Eknath Patil alias Chaudhar v. State of Maharashtra reported in 2008(4) Bom.C.R. 653. Ordinarily, we would have directed the petitioners, who admittedly are Government servants, to approach the Maharashtra Administrative Tribunal for redressal of their grievances. However, in the facts and circumstances of the present case, which we will presently advert to, we are of the view that these petitions would have to be entertained by this Court, despite an alternate efficacious remedy being available to the petitioners.

The petitioners applied for the posts of ''Clerk-typist'' and ''Talathi'' in the cadre of Class-III employees pursuant to an advertisement issued on 17/8/2007. The petitioners were invited to appear for the written examination as well as the oral interviews and were declared successful candidates. Thereafter, appointment orders were issued in their favour on 25/2/2008. It appears that while the recruitment procedure was in progress, one Sunil Eknath Patil, a project affected person, preferred Writ Petition No. 7472/2007 reported in 2008 (4) Bom.C.R. 653 before this Court challenging the recruitment procedure for the post of "Clerk-typist" and "Talathf in the Jalgaon District. The principal grounds of challenge in that petition were that project affected persons whose names were maintained in a seniority list by the Collector could not be compelled to compete between themselves for recruitment. It was contended that once a person is included in the list of project affected persons, he is entitled to appointment to a post reserved for project affected person depending only on his seniority in that list. The Division Bench of this Court issued certain directions due to which the petitioners'' services were terminated on 30/7/2008 and 31/7/2008.

3 The main grievance of the petitioners in this petition is that although the respondents herein were aware that the recruitment procedure was in progress and appointment orders had been issued prior to the decision of this Court in Writ Petition No. 7472/2007 reported in 2008(4) Bom.C.R. 653 this fact was not brought to the notice of the Division Bench. It is contended that neither the petitioner in that writ petition nor the respondents thought it fit to bring to the notice of this Court that the petitioners herein and others like them who had been issued appointment orders pursuant to the selection held after issuing advertisements on 17/8/2007, would be adversely affected. The petitioners have contended that since they were not heard by this Court, it is necessary for them to file the present petition rather than approaching the Administrative Tribunal as the Tribunal would be bound by the decision of the Division Bench.

The learned Counsel appearing for the petitioners has submitted before us that it is always open to the petitioners to file a Writ Petition bringing to the notice of this Court the aforesaid facts rather than filing a Review Petition. Reliance is placed on the judgment of this Court in the case of K. Ajit Babu and others Vs. Union of India and others, . The Supreme Court has observed thus:

...Often in service matters the judgments rendered either by the Tribunal or by the Court also affect other persons, who are not parties to the cases. It may help one class of employees and at the same time adversely affect another class of employees. In such circumstances the judgments of the courts or the Tribunals may not be strictly judgments in personam affecting only the parties to the cases, they would be judgments in rem. In such a situation, the question arises: What remedy is available to such affected persons who are not parties to a case, yet the decision in such a case adversely affects their rights in the matter of their seniority. In the present case, the view taken by the Tribunal is that the only remedy available to the affected persons is to file a review of the judgment which affects them and not to file a fresh application u/s 19 of the Act. Section 22(3)(f) of the Act empowers the Tribunal to review its decisions. Rule 17 of the Central Administrative Tribunal (Procedure) Rules (hereinafter referred to as "the Rules") provides that no application for review shall be entertained unless it is filed within 30 days from the date of receipt of the copy of the order sought to be reviewed. Ordinarily, right of review is available only to those who are party to a case. However, even if we give wider meaning to the expression "a person feeling aggrieved" occurring in Section 22 of the Act whether such person aggrieved can seek review by opening the whole case has to be decided by the Tribunal. The right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking Order 47 of the CPC may not be applicable to the Tribunals but the principles contained therein surely have to be extended. Otherwise there being no limitation on the power of review it would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of the party feeling adversely affected by the said decision. A party in whose favour a decision has been given cannot monitor the case for all times to come. Public policy demands that there should be an end to law suits and if the view of the Tribunal is accepted the proceedings in a case will never come to an end. We, therefore, find that a right of review is available to the aggrieved persons on restricted ground mentioned in Order 47 of the CPC if filed within the period of limitation.

The Apex Court further in the case of Pohla Singh @ Pohla Ram (d) by Lrs. and Others Vs. State of Punjab and Others, has observed thus:

18.1. In this petition Gurcharan Singh, son of Dhanna Singh was arrayed as respondent 4 and the judgment shows that the petition was contested only by the said respondent. If a decision rendered in a writ petition adversely affects the interest of a third person who was not impleaded as a party in the writ petition, it is always open to him to ask for recall of the judgment which has been rendered without affording any opportunity of hearing to him. An identical question has been examined by a Constitution Bench in Shivdeo Singh v. State of Punjab. Here in a writ petition filed by A for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of B, the High Court cancelled the order in favour of B though he was not a party to the writ proceedings. Subsequently, B filed a petition under Article 226 of the Constitution for impleading him as a party to A''s writ petition and rehearing the whole matter. The High Court allowed the writ petition. It was held by this Court that the second writ petition filed by B was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of B, who was not a party to the previous proceedings. It was further held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave or palpable errors committed by it. In entertaining B''s petition, the High Court thereby did what the principles of natural justice required it to do.

The recourse taken to the second writ petition by the allottees, therefore, cannot be said to be illegal as their basic grievance was that though they were in possession since 1962 i.e. for nearly 18 years/but the order declaring the land as surplus had been set aside in a writ petition, wherein they were not impleaded as parties. In these circumstances we are of the opinion that the writ petition filed by the allottees was rightly allowed by the learned Single Judge.

We are therefore, convinced that the present Writ Petition is maintainable.

While passing the order in Writ Petition No. 7472/07 reported in 2008(4) Bom.C.R. 653, the Division Bench of this Court has observed thus:

We, therefore, allow the Writ Petition although not strictly in terms of prayer clauses:

(1) We uphold the contention advanced on behalf of the petitioner that so far as appointments of PAPs to 5% priority quota, they are not required to apply, as if open market candidates; in response to an advertisement nor they are required to compete with open market candidates. They are also not required to compete between themselves and ordinarily they should be appointed in order of seniority. The only occasion for making an exception would be for observation of compartmentalized reservations e.g. if there are 10 posts in a Department for PAPs category and 5 posts are already filled in by open category and, therefore, there are vacancies only of reserved category, open category PAP in the wait list will have to make a room for candidate below him of reserved category.

(2) The recruitment, if any, carried out by the respondents pursuant to advertisement dated 17.8.2007, so far as it relates to PAPs category, must be held vitiated and quashed.

(3) In the light of view taken by us as above, it is desirable to direct learned A.G.P. to place a copy of this judgment before the Chief Secretary of the State for appropriate directions to all appointing authorities referred in Clauses (a) and (b) of Sub-section (6) of Section 10 of Act XI of 2001. They should be directed to:

(i) Take an assessment of total cadre strength in Class III and IV (Class ''C'' and ''D'' (non technical) of each Departments, find out how many seats are available to PAPs as ''priority quota'' and how many are vacant.

(ii) For vacancies identified, all the appointing authorities should ask for the names of PAP candidates registered with Collector/Resettlement Officer, who are eligible for appointment as per Rules (by giving due consideration to social reservations i.e. to vacancies of reserved category, the first candidate from that category in the seniority list should be sponsored) and issue appropriate appointment orders to such candidates sponsored from seniority list.

(iii) Now onwards there should be no need to advertise the vacancies available for PAPs and appointments of PAPs should be carried out strictly in accordance with the instructions so far as issued by the Government from time to time, i.e. strictly from the seniority list maintained by Collector/Resettlement Officer on verifying the eligibility according to rules for the post and without any competitive examination.

(iv) The exercise of identifying the vacancies and filling those, all over the State and with all appointing authorities, should be completed within a period of 18 months from today.

(4) Needless to say that benefit of observations and directions in this judgment should be available to all the PAPs irrespective of the fact that they are not party to present petition.

We are unable to agree with these directions and observations passed by Division Bench of this Court. In fact they are contrary to the observations of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, . These observations have been reiterated by the Supreme Court in the case of Principal, Mehar Chand Polytechnic, Jalandhar City and Another Vs. Anu Lumba and Others, . The Supreme Court in this decision while quoting from the decision in Umadevi''s case, has observed thus:

The Constitution Bench in Umadevi in regard to the temporary employees clearly opined:

There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore, overruled.

It was further observed:

The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore, not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the Court is approached for relief by way of a writ, the Court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant Rules or in adherence of Articles 14 and 16 of the Constitution.

[35] The respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. The Project undertaken by the Union of India although continued for some time was initially intended to be a time-bound one. It was not meant for generating employment. It was meant for providing technical education to the agriculturists. In the absence of any legal right in the respondents, the High Court thus, in our considered view, could not have issued a writ of or in the nature of mandamus.

[36] In Umadevi''s case it was stated:

There have been decisions which have taken the clue from Dharwad case and given directions for regularisation, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkunda Colliery of Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of Central Coalfields Ltd., though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularisation or re-engagement or making them permanent.

Thus, in our view the Supreme Court has in no uncertain terms observed that project affected persons can be appointed only after they are found to be meritorious and worthy of being appointed to a particular post. The mere fact that a person is "project affected", would not ipso facto give a right of appointment to a post, regardless of his merit. The minimum educational qualification cannot be ignored, while appointing persons from the project affected category. In fact, the Supreme Court has time and again in various judgments including that of A. Umrani v. Registrar, Co-operative Societies reported in 2004 DGLS (soft) 435 : AIR 2004 S.C. 4504 held that appointments made in violation of the mandatory provisions of a statute and in particular ignoring the minimum educational qualifications would be wholly illegal. The reservation available for project affected persons cannot be filled in without advertising the posts available in order to ensure transparency in public employment.

Thus in our opinion, the observations and directions passed by Division Bench of this Court are contrary to the decision in the case of Umadevi and other judgments of the Supreme Court. We are therefore, unable to agree with the decision of the Division Bench in Writ Petition No. 7472/07 reported in Sunil Vs. The State of Maharashtra, The District Collector and The District Selection Committee for Jalgaon and the Collector, .

We therefore, direct the Registry to place the papers and proceedings of this Writ Petition before the learned Chief Justice in order to constitute a Larger Bench to decide the issue as to whether project affected persons can be appointed without advertising the posts, ignoring their qualifications and merit.