Oral Judgment: ( B.R. Gavai, J.)
1. Petitioners challenge common judgment and order dated 24.2.2010 passed by the Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur in Original Applications No. 261 of 2009 to 288 of 2009 dismissing the said original applications. The petitioners had challenged order dated 24.4.2009 issued by respondent Dean and Chairman, Selection committee, Ayhurvedic College and Hospital, Nagpur, thereby terminating their services with effect from 24.4.2009.
2. The facts, in brief, giving rise to the filing of these petitions are as under :
That, respondent no. 2, after approval of respondent no. 1, had advertised total 35 posts as under : Sr.No. Name of Post No. of Payscale Posts
| Sr.No. | Name of Post | No. of Posts | Pay-scale |
| 1. | Peon | 4 | 2550-55-2600-60-3200 |
| 2. | Ward Attendant | 25 | 2550-55-2600-60-3200 |
| 3. | Asst. Cook | 2 | 2550-55-2600-60-3200 |
| 4. | X-Ray Assistant | 1 | 2550-55-2600-60-3200 |
| 5. | Rasshala Sevak | 1 | 2550-55-2600-60-3200 |
| 6. | Washerman | 1 | 2610-60-2910-65-3300-70-4000 |
| 7. | Barber | 1 | 2610-60-2910-65-3300-70-4000 |
| Â | Total | 35 | Â |
3. Heard Mr N. R. Saboo, learned counsel for the petitioners and Ms Bharti Dangre, learned Additional Government Pleader for respondents in both the petitions.
4. Learned counsel for the petitioners submits that petitioners were appointed after following due selection process as prescribed by law. It is submitted that the petitioners had appeared in the written examination and after they had cleared the written examination, they were called for oral interview, and after they cleared oral interview, they came to be selected and subsequently appointed. Learned counsel, therefore, submits that cancelling the appointment orders which were issued in favour of the petitioners without even giving them an opportunity of being heard, is totally in contravention of the principles of natural justice. Learned counsel, therefore, submits that the impugned order passed by the learned Tribunal as also termination orders in question are liable to be quashed and set aside. Mr Saboo, in support of his contention, relies on the following judgments of the Apex Court :
(1) AIR 2003 SC 4222 - Union of India and ors v. Rajesh and anr
(2) AIR 2006 SC 2571 - InderpreetSingh Kahlon and ors State of Punjab and ors
(3) (2010) 10 SCC 197 - A.M. S. Sushanth and ors v. M. Sujatha and ors
(4) (2010) 10 SCC 707 - GirjeshShrivastava and ors v. State of MP and ors
5. Ms Bharti Dangre, learned Additional Government Pleader, on the contrary, submits that in the advertisement, the Authorities ought to have provided for postwise reservation. Learned Addl. GP submit that since the Constitutional reservations were not provided postwise, the entire selection process was not sustainable. She submits that since the entire selection process was tainted, there was no question of giving opportunity of being heard to the petitioners. Learned Additional Government Pleader submits that the selection process which was conducted earlier was in contravention of the provisions contained in the Government Resolution dated 5th November 2009 and as such, no error could be found with the order passed by the learned Tribunal.
6. There is no dispute regarding the factual position. The appointment of the petitioners was done after they had cleared in the selection process which consisted of written examination as well as the oral examination. Not only this, in the affidavit which was filed before the learned Tribunal by the Secretary, Medical Education and Drugs Department on 2nd April 2009, it was categorically stated thus :
â4. I say and submit that it is apparent from the records that a total of 2469 candidates applied in response to the Advertisement from various categories, 95 from Adivasi Prakalpa and 353 from Employment Exchange thus taking the final total to 2917 applications. Even if the initial advertisement had declared postwise reservation, the respondents feel that the total number of applicants would not have changed to a great extent. After the declaration of the result of Written Test, the selection Committee called candidates for interview. It is before the interview that the Committee gave an opportunity to the candidates to fill up a Preference Form for giving choices for various posts to be offered on merit. The procedure to a great extent reduced the chances of grievance that the candidates could not apply according to the reservation for a particular post. The Applicant opted for the Rasshala Sevak as a first choice and âSepoyâ as second choice. However despite this privilege of preference, the post of Rashsala Sevak having been reserved for S. T., the petitioner could not be considered for this post. Moreover not being in merit in his category of SC, he could not be offered any post of âSepoyâ reserved for S. C. category candidates. The Applicants major grievance is that a person with no experience of having worked as Rasshala Sevak has been selected. His contention that only he had the experience and must be selected to Rasshala Sevaks post does not make him eligible for a specific category (S. T.) post to which he does not belong.â
7. It can thus be clearly seen that it was a specific stand of the State Government in Original Application No. 353 of 2008 that in all 2469 candidates had applied in response to the advertisement from various categories and including 95 applicants from Adivasi Prakalpa and 353 from Employment Exchange, final total was taken to 2917 candidates. Not only this, it was categorically stated that the candidates were given opportunity to fill up Preference Form for giving choices for various posts. Perusal of paragraph 3 of the said affidavit would reveal that a corrigendum was also published mentioning postwise reservation. However, subsequently, within five days of the said affidavit, the Government had changed its stand and had filed additional affidavit dated 9.4.2009 thereby stating therein that since the selection process was irregular, the same was cancelled and it was decided to start the selection process de novo.
8. It is thus clear that the decision of the Government to cancel the earlier selection process and start selection process de novo, is only on the ground of an irregularity of not providing the post-wise reservation in the first advertisement. We have already reproduced hereinabove details of posts and number of vacancies to be filled in as per the advertisement. It could be seen that out of 35 posts, 33 posts are carrying one and the same payscale viz. Rs. 2550-55-2600-60-3200 and the pay-scale differs slightly in case of two posts only. Perusal of the advertisement would further reveal that it showed vertical and horizontal reservation for all categories. Not only this, but as many as 2917 applicants had responded to the said advertisement and none of them found any fault with the advertisement. It is further to be noted that in Original Application No. 353 of 2008 there was no ground regarding the advertisement being not proper. The said original application was filed only with a grievance that one person who was appointed as Rasshala Sevak was not having requisite experience. In that view of the matter, we are of the view that there was no irregularity in the advertisement.
9. The Government Circular dated 5th November 2009, in our view, also would not come to the help of the Government inasmuch as the said Circular no where provides that postwise reservation has to be provided and in the absence thereof, the selection process would stand vitiated. Perusal of the number of posts would reveal that it would have been rather difficult to provide for postwise reservation inasmuch as some of the posts were singular posts. In that view of the matter, providing reservation for the entire number of posts which were carrying more or less the same payscale, in our view, cannot be faulted with. In any case, we are of the considered view that even assuming for a moment that there was an irregularity, it was not of such a nature which would have vitiated the entire selection process.
10. The Apex Court in Union of India and ors v. Rajesh P. U. and anr (supra) had an occasion to consider similar issue. In the said case, there were allegations regarding malpractices. Inspite of that the entire selection process was quashed and set aside. The Apex Court set aside the decision by observing thus :
â6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions â which report itself seems to have been also produced for the perusal of the High Court, there appears to be no scope of any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of written examination-either by the candidates or by those who actually conducted them. If the Board itself decided to dictate the questions in loud speaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted dos not appear to have condemned that part of the selection process relating to conduct of written examination itself, except noticing only certain infirmities only in the matter of valuation of answer sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears the Special Committee has extensively scrutinized and reviewed situation by reevaluating the answer sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be also declared successful and selected for appointment. There was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or other of irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or other reasons. Applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a compete go bye to contextual considerations throwing to winds the principle of proportionality in going further than what was strictly and reasonable required to meet the situation. In short, the Competent Authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.â
In the said case, the Supreme Court has also referred to the doctrine of proportionality which has now been accepted by the Indian courts. In the said case, the Apex Court held that the action taken was not proportionate to the irregularity alleged. We find that the factual position in the present case is almost identical.
11. In the case of InderpreetSingh Kahloon and ors v. State of Punjab and ors (supra), inspite of the fact that there was an allegation of large-scale fraud being made in the selection process, the Apex Court had set aside the decision of the Government resorting to the cancellation of all the appointments en masse by treating unequals as equals. The Apex Court in the said case observed thus :
âUndoubtedly, in the selection process, there have been manipulations and irregularities at the behest of the then Chairman, Punjab Public Service Commission. But, on careful scrutiny of the facts and circumstances of the case, the High Court ought to have made a serious endeavour to segregate the tainted from the non-tainted candidates. Though the task was certainly difficult, but by no stretch of imagination, it was not an impossible task. The Government, instead of discharging its obligation, unjustly resorted to the cancellation of all the appointments en masse by treating unequals as equals without even prima facie examining their cases. This is clearly arbitrary and unconstitutional.â
It can thus be clearly seen that even in the case of selection process which was alleged to have been conducted with serious mal-practices, the Apex Court has held that en masse cancellation of appointments was not permissible and effort ought to have been made to weed out tainted from non-tainted candidates.
12. In the case of GirjeshShrivastava and ors v. State of MP and ors (supra), some relatives of the members of Selection Committee were permitted to take part in the selection process. It was also alleged that there were some illegal beneficiaries in the said illegal process. Even in that factual background, the Apex Court observed thus :
â26. From these facts it can be concluded that the alleged participation of near relatives in the selection process was not such a factor as to vitiate the entire selection process. Even if there were some illegal beneficiaries from the selection process, they should have been weeded out instead of striking down the entire selection process.
27. In Charanjit Sing v. Harinder Shara a similar situation had arisen. In that case, while not approving the interference of the High Court in the selection process, this Court held that merely because some of the candidates in the selection process happened to be relatives of the members of the Selection Committee, it did not mean that all the candidates were relatives of the members of the Selection Committee and had been illegally selected. It was also held that since the petition was not made by any of the candidates who had appeared in the selection process and was instead fled as a public interest litigation, it was improper for the High Court to interfere in the matter.â
13. In the present case, the second affidavit which is filed only refers to an irregularity in the selection process. As has already been discussed by us, the said irregularity is the one of not providing the postwise reservation. There is no allegation of either any malpractices or any candidate having been illegally selected and appointed with some ulterior motive. In that view of the matter, we find that the decision of the Government to cancel earlier selection process was not sustainable in law. The candidates who had gone through the process of written examination as well as the oral examination and who were validly appointed, could not have been terminated on account of alleged irregularity which, according to us, is not an irregularity and even if it is presumed to be an irregularity, it was not of such a nature which would vitiate the entire process of selection process.
14. In that view of the matter, petitions succeed. Rule is made absolute in terms of prayer clause (i) and (ii) of the petitions.
15. The respondents are directed to reinstate the petitioners within a period of fifteen days from today to the posts which were occupied by them prior to their termination. Petitioners will be entitled to continuity in service for all purposes. However, the petitioners would not be entitled to the backwages for the period during which they were out of employment.