High Court of Bombay

Nagnath Devidasrao Padhye and Ors. Vs. The State of Maharashtra and Ors.

MANU/MH/3382/2017

20.12.2017

Service

Tribunals or Courts cannot direct employer to fill up posts ignoring prescribed procedure for selection and appointment

In facts of present case, the Petitioners were holding the certificates issued by the District Rehabilitation Officer, declaring that, they are project affected persons and are entitled to get benefit of the scheme for rehabilitation of the project affected persons in the form of concession in getting the Government service. Petitioners applied for being appointed to the post of Laboratory Assistant from the quota meant for project affected persons on 16th April, 1998 and July, 1997 respectively.

The Dean, Government Medical College, had opposed Original Applications mainly on the ground that, there were only 20 sanctioned posts of Laboratory Assistants, while the quota of 5% meant for the project affected persons was already exhausted and therefore, the above named petitioners were not liable to be appointed or confirmed in the service under the scheme of rehabilitation of the project affected persons. The Tribunal dismissed the Original Applications on the basis of the judgments in the cases of Secretary, State of Karnataka and others v. Umadevi and others and Rajendra pandurang Pagare and another v. State of Maharashtra and others respectively, holding that the petitioners have no right to seek appointment and confirmation in the service without following due procedure meant for recruitment even for the post reserved for the project affected persons.

In the present case, the quota meant for project affected persons was already exhausted since the candidate at serial No. 132 was appointed from the category of project affected persons on 1st July, 1997. His date of retirement is 30th September, 2036. If that be so, both the Petitioners were not entitled to seek appointment to the posts of Laboratory Assistants from the quota meant for the project affected persons. In view of the circular dated 3rd January, 1997, they were not entitled to claim appointment to the posts of Laboratory Assistant by directly making applications to the Appointing Authority and the Appointing Authority also was not legally authorised to appoint them by entertaining such applications. Both the Petitioners, though were not entitled to be appointed from the category of project affected persons, had secured appointments pursuant to the interim reliefs granted by the Tribunal. It cannot be said that, the Petitioners were appointed to the posts of Laboratory Assistants by following due procedure that was prescribed in the circular dated 3rd January, 1997.

When there was no post available for being filled up from the candidates from the category of project affected persons, the Dean of Government Medical College, Nanded had no authority to appoint the petitioners by entertaining their applications. Therefore, the appointments of the petitioners, which were made without following the due procedure, would be covered by the judgment in the case of Umadevi.

Only because the Dean of the Government Medical College appointed some other persons from the category of project affected persons without following due procedure, the Petitioners cannot claim parity seeking benefit of such irregular/illegal act. When the petitioners seek the assistance of the Court, it is necessary for them to establish their legal right to get appointed to the posts of Laboratory Assistants. They cannot get appointed to the said posts illegally by pointing out to some other illegal appointments.

Both the Petitioners were appointed by the Dean, Government Medical College, Nanded pursuant to the interim orders passed by the Tribunal. It is well settled that, the Tribunals or Courts cannot direct the employer to fill up the posts ignoring the prescribed procedure for selection and appointment. The Tribunal rightly dismissed the Original Applications.

Tags : Appointment Scheme Benefit

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