1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CONTEMPT PETITION NO.212 OF 2009 Date of decision: 2/3/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see Yes/No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? Yes/No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes/No. Civil Judges ? 6. Whether the case involves an important Yes/No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/212-09cp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CONTEMPT PETITION NO.212 OF 2009 Shri Bandu s/o Keshavrao Hiwale, Age 30 years, Occ. Nil, R/o. Shivaji Chowk, Galnib, Post Agarwadgaon, Tal.Gangapur, Dist. Aurangabad. ...PETITIONER VERSUS 1. The State of Maharashtra, Through its Secretary, School Education Department Mantralaya, Mumbai. 2. Shri Vijay Waghmare, Age Major, Occ. Service, Chief Executive Officer, Zilla Parishad, Aurangabad. 3. Shri Ashok Ramchandra Bhagwat, Age 55 years, Occ. Service, Education Officer (Primary), Zilla Parishad, Aurangabad. ...RESPONDENTS ... Mr. V.D.Sapkal, Adv., for the petitioner. Mr.V.D.Rakh, A.G.P., for respondent no.1. Mr.Deelip Bankar Patil, Adv., for respondent nos. 2 and 3. ... CORAM: K.U. CHANDIWAL, J. DATE :2-3-2010 *** 3 ORAL JUDGMENT: 1. Heard. Rule, Heard forthwith with the consent of Counsel for the parties. The petitioner has alleged, that the directions of the Division Bench of this Court, based on statement made before it in Writ Petition No.4905/2007 dt.25th Feb.,2009, to consider the proposal for appointment of the petitioner in the category of Project Affected Persons in accordance with law, within a period of two weeks from 25.2.2009, being not acted upon, there is contempt. The order dt.25.2.2009, in Writ Petition is as under: "3. Learned counsel for the respondents No.3 and 4 states on instructions that the proposal to appoint the petitioner in the category of project affected persons on a vacant seat of Assistant Teacher / Shikshan Sevak has been forwarded by the Education Officer to the Zilla Parishad. The Zilla Parishad would accordingly consider the proposal in accordance with law, within a period of two weeks from today and communicated the decision thereon to the petitioner. In the light of the aforesaid statement, Mr.V.D.Sapkal, learned counsel for the petitioner states that the petitioner does not press for any of the reliefs prayed for in the petition at this stage but reserves the 4 liberty to file appropriate proceedings, including petition for the said reliefs, in the event the proposal submitted by the Education Officer is not favourably considered by the respondent Zilla Parishad. 4. We accordingly allow this petition by making rule absolute in the terms of the statement of the respondents that the proposal pertaining to the petitioner submitted by the Education Officer would be considered by the Zilla Parishad in accordance with law within two weeks from today. We also grant liberty to the petitioner as prayed. Rule is thus made absolute on the terms indicated above with the and no order as to costs. " 2. Shri Ashok Ramchandra Bhagwat, Education Officer, has explained the delay in meeting the requisitions as under (a) the order dt.25.2.2009 was received in Inward of Zilla Parishad on 19.3.2009 (b) on 30.3.2009 petitioner was directed to remain present in the office of the Education Officer, Zilla Parishad, Aurangabad, on 6.4.2009, with a view to offer him an opportunity of hearing. Petitioner was heard on 6.4.2009, (c) A clarification was asked for from Commissioner, Aurangabad, about percentage of different quota. 3. The concerned authorities failed to 5 take decision within two weeks and then, there was change in Government policy, pursuant to directions of this Court in Writ Petition No. 7472/2007 dt.9th July, 2009, requiring the authorities to fill in the post by advertisement on inter se merit and not as per seniority/waiting list. 4. The Government decision dt.23.9.2009 about merits as a criteria was communicated to the petitioner on 12th Oct.,2009. The petitioner was not eligible and entitled for getting appointment order. This has been clarified in affidavit dt.8.12.2009 of the Chief Executive Officer Vijay Balkrishna Waghmare. 5. On analyzing these details, it is crystal clear, the petitioner could not stake for appointment being a Project Affected Person, without undergoing the required recruitment process. The direction of Division Bench was for considering the proposal as per Rules, does not translate warranting an appointment letter. The authorities have consumed time in taking decision and by that time Government policy has regression due to orders in W.P.No.7472/2007, which has indeed foreclosed an opportunity for petitioner to fulfill dream of a service. Promptness by officer could have been a virtue of luck for petitioner from distress. 6 6. The Supreme Court of India has, in Dalpat Abasaheb Solunke Vs. Dr.B.S.Mahajan and others ( (1990) SCC 305), observed, " It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasize that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertize. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved mala fides affecting the selection, etc. It is not disputed that in the present case the University had constituted the Committee with due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction." 7 This boils down the situation. There is no disobedience in the respondent not entertaining plea of petitioner, he was lacking the merit as per Rules. Contempt Petition disposed of. Respondents discharged. Rule discharged. [K.U. CHANDIWAL, J.] agp/212-09cp ...