1 10041.10 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10041 OF 2010 Ms.Surekha Ragho Patil, A-1/6, B.J.Cooperative Housing Society Ltd., Samantwadi, Uthalsar, Thane (W) ...Petitioner Versus 1.State of Maharashtra, Home Department. 2.The Commissioner of Police, Thane Police Commissionerate, Thane. 3.Shilpa Vinod Bondre, 501, `C’ Wing, Sarovar Darshan, Opp.TMC, Chandanwadi, Thane. ...Respondents ...... Mr.A.V.Bukhari with Ms.Seema Chopda and Ms.N.P.Chahal and Ms.K.B.Shelke for petitioner. Mr.Nitin Deshpande, A.G.P. for Respondent Nos.1 and 2. Mr.Sandesh Patil for Respondent No.3. ...... CORAM:- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR, JJ. JUDGMENT RESERVED ON :- MAY 4, 2011. JUDGMENT PRONOUNCED ON :- JUNE 8, 2011. 2 10041.10 JUDGMENT (Per A.M.Khanwilkar, J.) : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Nitin Deshpande, A.G.P. waives notice for Respondent Nos.1 and 2. Mr.Sandesh Patil waives notice for Respondent No.3. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Petition under Article 226 of the Constitution of India is for issuance of writ of mandamus to direct the respondents 1 and 2 to forthwith withdraw, rescind and revoke the appointment order dated 22nd October, 2010 to the extent it relates to the appointment of respondent No.3 as Law Officer Group B and that of the petitioner. It is thus prayed that the appointment of the respondent No.3 as Law Officer Group B be quashed and set-aside and to issue appropriate direction to the said respondents to appoint the petitioner on the post of Law Officer Group B. 3 10041.10 5. Briefly stated, the Government by Resolution dated 21st August, 2006 created and sanctioned 471 posts of Law Officers and Law Officers Group B (Divisions and Zones) to be attached to various Commissionerates with a view to provide legal guidance and assistance to Police authorities. The designation of the said 471 posts under the said Resolution is as follows: Designation No. of posts 1. Legal Advisor 4 2. Law Officer Group A 30 3. Law Officer Group B 55 4. Law Officer 283 5. Legal Inspector 99 6. In furtherance of the abovesaid decision, the respondent No.2 issued advertisement on 2nd April, 2007 inviting Advocates for being appointed as Law Officers. The petitioner was one of the applicant pursuant to the said advertisement. After following the selection process, the petitioner was appointed as Law Officer for 11 months in the Office of the Assistant Commissioner of Police, Ambernath. Upon completion of the said period, she was posted as Law Officer with the office of the Deputy Commissioner 4 10041.10 of Police, Kalyan for 11 months. On completion of the said term, she was appointed for 11 more months. As per the Scheme, the candidate if selected may be appointed on contract basis initially for a period of 11 months and reappointed for two successive terms of 11 months. 7. The respondent No.2 issued advertisement on 24th June, 2009 inviting applications for the post of Law Officer and Law Officer Group B. Since the petitioner was originally working as Law Officer, and later on discharging the duties of Law Officer Group B, she applied for the post of “Law Officer Group B” pursuant to the said advertisement. The application form as was required to be filled by the candidates clearly prescribed that the candidate should fill in the blanks and strike off the inapplicable details/information. This condition in the application form has some bearing in the present case. 8. As per the selection process, the petitioner was interviewed by the Committee. On the basis of her performance, she scored 46 marks and secured second position in the candidates interviewed for the post of Law Officer Group B. As per the advertisement, two posts of Law Officers Group B were to be filled in. The petitioner had legitimate expectation of 5 10041.10 being appointed on one of the said posts having secured second position amongst the candidates who participated in the selection process for the post of Law Officer Group B. However, the petitioner was appointed as Law Officer. The pay scale for the post of Law Officer is in the range of Rs. 12,000/- to Rs.15,000/- + travelling allowance of Rs.3,000/- per month. Whereas, the pay scale for the post of Law Officer group B is in the range of 15,000/- to Rs.20,000/- + travelling allowance of Rs.5,000/- per month. According to the petitioner, although the respondent No.3, who had participated in the same selection process for the post of “Law Officer” only, came to be appointed on the post of Law Officer Group B, disregarding the claim of the petitioner. It appears that the respondent No.3 was preferred by the Department on the specious reasoning that she had secured first position by securing total 46 marks amongst the candidates who had participated in the selection process for the post of Law Officer. It is the case of the petitioner that she was totally unaware about the illegalities committed by the Department in appointing the respondent No. 3. 9. After that appointment, very shortly, the petitioner received notice in Writ Petition No.4044 of 2010 filed by one Ms.Vineeta Nadkar who had 6 10041.10 earlier worked as Law Officer. The said Nadkar challenged the appointment of respondent No.3 as well as of the petitioner. In the said proceedings some time in April, 2010, the petitioner came to know that the appointment of respondent No.3 was done in illegal manner. The petitioner also came to know that Ms.Deepa V.Deshpande and Mr.Suvidh G.Mhatre had made an application under the Right to Information Act regarding the said appointments. When the petitioner got necessary information about the illegalities in the appointment of respondent No.3, she immediately filed Writ Petition No.4392 of 2010 on 3rd May, 2010 challenging the appointment of Respondent No.3 as Law Officer Group B being illegal, capricious and arbitrary and prayed that instead, she should be appointed on the said post. The said Writ Petition, however, came up for hearing on 30th July, 2010. As the tenure of appointment in terms of appointment order dated 29th August, 2009 was to expire on completion of 11 months in July, 2010, coupled with the fact that the Government passed order dated 28th July, 2010 terminating the contractual appointment of the petitioner, respondent No.3 and other candidates after 1st August, 2010, the petitioner took leave of the Court to withdraw the said Writ Petition by keeping the issues raised by the petitioner open. The order dated 30th July, 2010 passed by the Division Bench of this Court reads thus: 7 10041.10 “1. The learned counsel for the petitioners seek permission to withdraw the present writ petitions and prayed that the issues raised in the present writ petitions may kindly be kept open. 2. In the circumstances, writ petitions are disposed of as withdrawn by keeping the issues open.” 10. After the Writ Petition filed by the petitioner was disposed of, by Office order dated 22nd October, 2010, the respondent No.3 came to be reappointed on the post of Law Officer Group B. By the same order, the petitioner was once again appointed as Law Officer. The petitioner was informed about this order on 26th October, 2010. The petitioner recorded her protest and also refused to accept the appointment. The respondent No.3 resumed on the post of Law Officer Group B in furtherance of order dated 22nd October 2010 which order is the subject matter of challenge in this Petition. 11. It is the case of the petitioner that the termination order issued on 28th July, 2010 was a pretence. Because of the said order, the petitioner was misled to withdraw her Writ Petition with liberty. Whereas, taking advantage of disposal of the Writ Petition, instead of considering the petitioner’s claim for appointment on the post, or at best, re-advertising the 8 10041.10 post of Law Officer Group B which had become vacant after termination order dated 28th July, 2010, the respondent No.3 once again came to be appointed as Law Officer Group B vide impugned order dated 22nd October, 2010. It is the case of the petitioner that the order of termination was dishonest and an eyewash with a view to coax the petitioner to withdraw the earlier Writ Petition and then soon issue fresh appointment order in favour of the respondent No.3 for reasons best known to the concerned officers of the Department. It is in this backdrop, the petitioner has filed the present Writ Petition challenging the reappointment of respondent No.3 on the post of Law Officer Group B, which indisputably, is on the basis of the selection process commenced pursuant to advertisement dated 24th June, 2009. 12. The respondents have resisted this Writ Petition. Preliminary objection has been raised about the maintainability of the Petition on the argument that the earlier Writ Petition filed by the petitioner on same basis was withdrawn on 30th July, 2010 without liberty to file a fresh Petition. Insofar as merits is concerned, the reply affidavit filed by the Assistant Commissioner of Police dated 21st March, 2011 states that pursuant to the advertisement, the application preferred by the petitioner as well as 9 10041.10 respondent No.3 along with other candidates was processed and the candidates were interviewed by the Selection Committee on the basis of performance of the candidates. The respondent No.3 came to be appointed as Law Officer Group B. It is the case of the respondents 1 and 2 that petitioner secured 46 marks whereas, the respondent No.3 had secured 47 marks and for which reason, the respondent No.3 was selected and appointed as Law Officer Group B. It is the case of the said respondents that respondent No.3 had apparently applied for both the posts, namely, Law Officer as well as Law Officer Group B. She had kept both options in her application open. It is further stated that the petitioner had applied specifically for the post of Law Officer Group B. She came to be appointed as Law Officer which itself was an indulgence shown to her. Insofar as the second post of Law Officer Group B, it is stated that one Swapnil Ovalekar had secured first position by obtaining 58 marks. Accordingly, he was appointed against one of the two posts of the Law Officer Group B. After he left the job, the said post has been readvertised. However, the petitioner did not submit her application pursuant to the said advertisement. Therefore, the said post cannot be now offered to the petitioner. The respondent No.3 has also filed detailed reply asserting that she was rightly appointed on the post of Law Officer Group B. 10 10041.10 13. We may place on record that considering the controversy raised during the arguments, we had called upon the Counsel appearing for respondents 1 and 2 to produce the original record for our perusal. From the original record, it appears that the application which was required to be filled by the candidates aspiring to be appointed against the concerned post, unambiguously prescribed that the candidate should fill in the blanks and strike off the inapplicable details/information. Inspite of the said condition clearly mentioned in the application form, the respondent No.3 did not either score off or put tick mark against any one of the post. In the petitioner's form, however, it is noticed that the petitioner has struck off the post of Law Officer, meaning thereby that the petitioner had applied only for the post of Law Officer Group B. The other candidate Swapnil Ovalekar had put tick mark against the post of Law Officer Group B, which means he had submitted his application only for the said post. We shall revert to this aspect a little later. 14. Before we proceed to examine the rival submissions on merits, we would dispose of the preliminary objection regarding maintainability of the present Petition raised by the respondents. In our opinion, however, the said 11 10041.10 objection is devoid of merits. Inasmuch as, even though the earlier Writ Petition No.4392 of 2010 was filed by the petitioner concerning the appointment of respondent No.3 in particular, in disregard of the petitioner's claim on the post of Law Officer Group B, the same was allowed to be withdrawn leaving all questions open as is evident from the said order itself. Indeed, the order does not specifically record that the petitioner has been given liberty to file a fresh Petition for the same relief. However, the spirit of the order, in our opinion, does not preclude the petitioner to file the present Petition. We are persuaded to take this view also for the reason that the substantive relief claimed in the earlier Petition was in the context of appointment order dated 29th August, 2009 which came to end with the termination order dated 28th July, 2010. Whereas, the present Petition is necessitated on account of the subsequent (reappointment) order dated 22nd October, 2010 issued by the Department. As aforesaid, the spirit of order dated 30th July, 2010 will have to be borne in mind to answer the preliminary objection. It would be hyper technical view to hold that remedy of fresh Writ Petition is unavailable on account of the said order. Accordingly, the preliminary objection deserves to be stated to be rejected. 12 10041.10 15. Reverting to the merits as is noted earlier, even though there is no specific mention in the advertisement inviting separate applications for the posts of “Law Officer” and “Law Officer Group B”, the application form expressly mentions that the candidate must fill in the blanks and strike off the details which are not applicable. In view of the said condition, the candidates were expected to strike off the inapplicable clause or details including relating to post applied. The format of the application indicates that the candidate may either apply for the post of “Law Officer” or the post of “Law Officer Group B”. There was no option provided in the application to apply for both the posts. Thus the candidate had to clearly disclose as to which post he/she was applying for. Insofar as Swapnil Ovalekar who came to be appointed against one amongst the two posts of Law Officers Group B having scored highest marks amongst the participating candidates for the said post, had put tick mark against the post of Law Officer Group B which is indicative of the fact that he was applying for the post of Law Officer Group B. Insofar as the petitioner is concerned, she had struck off the words Law Officer which means that she was applying for the post of Law Officer Group B. However, in the application of respondent No.3, neither tick mark was put against the concerned post nor the inapplicable post has been struck off. Notably, neither the advertisement nor the application 13 10041.10 states that a candidate is entitled to apply for more than one post. At the same time, the express condition has been stated in the application form that the candidates must strike off the inapplicable details. As a necessary consequence, it would follow that failure to comply with the said condition would render the application of the respondent No.3 defective and could be rejected on that count. 16. Be that as it may, the application made by the respondent No.3 was processed by the Department. It is noticed from the original record produced before us that the Department processed the application of respondent No.3 on the assumption that she had applied for the post of “Law Officer” only and not “Law Officer Group B”, or for that matter, both the posts as such. This fact is reinforced from the chart of candidates and marks obtained by them which is prepared by the Department in relation to the notified post of Law Officer and Law Officer Group B respectively. It is not possible to countenance the argument advanced by the Department that inclusion of the name of respondent No.3 in the list of candidates who had applied for the post of “Law Officer”, was a clerical mistake. That is an afterthought plea. 14 10041.10 17. Indeed, the Selection Committee who interviewed the candidates for both these categories was common. Nevertheless, the Committee was conscious of the fact as to which candidate had applied for one amongst the posts notified by way of common advertisement. The merit list was prepared by the Department on the basis of the recommendation made by the Selection Committee with reference to the respective posts. As is noticed earlier, the nature of duties of Law Officer and Law Officer Group B are more or less similar but their pay scale is different. Besides, the post of Law Officer Group B is treated on higher pedestal than the post of Law Officer. In the hierarchy of post, above the post of Law Officer is the post of Law Officer Group B. Then the Law Officer Group A and Legal Advisor in that order. 18. Suffice it to observe that the Department having processed the application of respondent No.3 for the post of “Law Officer” right until the preparation of the merit list of the candidates and having shown the name of respondent No.3 in the merit list of candidates for the post of “Law Officer”, it is incomprehensible as to how the appointment of respondent No.3 came to be made on the post of “Law Officer Group B”. The justification now offered before the Court that respondent No.3 had scored 15 10041.10 relatively better marks than the petitioner is unacceptable. Firstly, because the Department cannot be permitted to argue contrary to their own record. From the record as stated earlier, the name of respondent No.3 all throughout appears in merit list of candidates for the post of “Law Officer”. In addition, no explanation whatsoever is offered as to why in the past, the Department had adopted a different approach inasmuch as pursuant to the advertisement issued by the Department on 19th December, 2009, the merit list of candidates on the basis of concerned post was prepared. From that, it was noticed that Mrs.Suvarna Avinash Kulkarni had scored 63 marks, Mrs.Bane had scored 57 marks, whereas, Mrs.Kalpana Sudhir Anjali had scored 57 marks. As against that Kadambini Manish Khandagade who had applied for the post of “Law Officer Group B” had scored only 52 marks. Nevertheless, the Department appointed Kadambini Manish Khandagale to the post of Law Officer Group B. This belies the claim of the respondents now taken in the present Petition that the respondent No.3 was preferred because she had scored more marks than the petitioner. Once the claim of respondent No.3 was processed for a particular category of post, it was not open to the Department to alter that position. Instead, the said selection process ought to be taken to its logical end on that basis alone. Such 16 10041.10 approach alone can ensure doctrine of fairness and transparency in the selection process. 19. Insofar as the justification now given that the respondent No.3 had kept both options open at least the Department cannot be allowed to contend contrary to their own record. As aforesaid, the Department ought to have rejected the application of respondent No.3 being defective having failed to strike off the inapplicable details or for that matter to tick mark the applicable one. Notably, after the display of the merit list of candidates prepared by the Department post wise, no grievance whatsoever was made by the respondent No.3 about wrongful inclusion of her name in the list of “Law Officer”. The respondent No.3 had made no grievance at any point of time during the selection process although her application was being processed for the post of Law Officer only. In one sense, she had acquiesced in the steps taken by the Department on the basis of their understanding that her application was for the post of “Law Officer” only. The Department presumably processed the defective application of respondent No.3 on the assumption that by default, she had applied for the post of Law Officer. Certainly not for Law Officer Group B. We are conscious of the fact that the petitioner has not made out any case of 17 10041.10 malafide or bias against a particular Officer who must have acted to favour the respondent No.3. However, it is enough for the petitioner to point out that the impugned order of appointment was in respect of post for which the respondent No.3 had neither expressly applied for, nor the Department had ever processed her claim for that post but for the post of Law Officer only. On accepting this grievance of the petitioner, it would necessarily follow that the impugned action of the Department to appoint the respondent No.3 on the post of “Law Officer Group B” is not only unfair but also arbitrary. On this finding, the action would be violative of Article 14 of the Constitution. It is well established position that the Judicial review ought to be limited to the decision making process and not the decision itself. But when the decision making process is found to be infirm, illegal, arbitrary or unfair, the final decision would obviously be vitiated as in this case. 20. Be that as it may, from the record which is produced before us, there is nothing to indicate that a conscious decision was taken in consultation with the Selection Committee by the authorised Officer that, although, the name of respondent No.3 appears in the merit list of candidates for the post of Law Officer, she could be still considered for appointment to the post of Law Officer Group B having secured more marks than the petitioner. It is 18 10041.10 vaguely suggested in the reply affidavit filed by the Assistant Commissioner of Police that the decision to appoint respondent No.3 was keeping in mind the past performance of the petitioner. Assuming that it is open to take this plea, this justification is unsubstantiated from the record and in any case cannot be countenanced for the reasons already alluded to above. 21. That takes us to the argument canvassed by the petitioner that in advertisement dated 24th June, 2009, applications were invited from the prospective candidates for two posts of Law Officer Group B. After following selection process, on one post Swapnil Ovalekar was appointed, however, he subsequently quit his job. As a result of which, the said post had become vacant. It is contended by the petitioner that since she was second in the merit list of Law Officer Group B, after quitting job by Swapnil Ovalekar, she ought to have been appointed against the said vacancy instead of re-advertising the post. This argument is devoid of merits. It is well established that the candidate till he is actually appointed, will have no right in the post. It was open to the Department inspite of the results of the selection process not to fill the post or allow it to be lapsed. Suffice it to observe that the candidate does not get any right on the post till 19 10041.10 he is actually appointed. The only right of the candidate is for being considered for appointment on the post as per the procedure prescribed by law. The petitioner could have been considered for being appointed against the said vacant post. The Department in the reply affidavit, however, has stated that the vacant post has been readvertised and that the petitioner did not apply for being considered in furtherance of that advertisement. The fact that the said vacant post was readvertised is not disputed. If so, the argument of the petitioner that she can be considered against the said vacant post cannot be taken forward. 22. From the above, we have no hesitation in taking the view that the respondent No.3 has been illegally appointed on the post of Law Officer Group B. Instead, she was qualified to be appointed only on the post of “Law Officer”, having participated in the selection process along with the other candidates for that