1 WP+1630 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 1630 OF 2010 Dr. RAMESH NAMDEO BHARMAL .. .. PETITIONERS Vs. THANE MUNICIPAL CORPORATION & ORS.- RESPONDENTS Mr. P. M. Pradhan i/. Mr. Sanjay Patil, Advocate for the Petitioner. Mr. R. S. Apte i/b. Mr. A. R. Pitale, Advocate for the Respondents. CORAM: SMT. RANJANA DESAI & R. V. MORE, JJ. DATED: 2/9/2010 P.C. The petitioner is working as Professor and Head of Department of Microbiology in Rajiv Gandhi Medical College-respondent 2 herein which is run by the Thane Municipal Corporation-respondent 1 herein (“TMC” for short). In this petition, the petitioner has prayed that the selection process commenced by advertisement dated 23/5/2007 for the post of Dean of Rajiv Gandhi Medical College be quashed and set-aside with a direction to consider the petitioner for appointment to the said vacant post. The 2 WP+1630 petitioner has also prayed that respondent 1 be restrained from proceeding with the selection process to the post of Dean of Rajiv Gandhi Medical College. 2. Admittedly, the advertisement was issued by the 1st Respondent on 23/5/2007. The select list was prepared on 3/9/2007. In the select list, the petitioner was placed at No.2 and one Dr. Shilotri was placed at No.1. On 12/9/2007, the said select list was approved by the General Body of the TMC. Appointment order was issued to Dr. Shilotri on 8/10/2007. It appears that on 2/11/2007, a representation was made by Dr. Shilotri that he may be permitted to go on deputation to Rajiv Gandhi Medical College from T. N. Medical College where he was working as a Professor and from 1/7/2008 to 30/9/08 he should be repatriated to his parent department in TMC till the date of his superannuation i.e. 30/9/08. He requested that from 1/10/08 he may be permitted to join the post of Dean in the TMC where he was selected. 3. Dr. Shilotri was appointed to the post of Dean on deputation in Rajiv Gandhi Medical College on 14/1/08. He worked on deputation till 30/6/08. On 1/7/08 he was repatriated to his parent department in T. N. Medical College. He retired on superannuation in his parent department on 30/9/08. On 18/11/08 he rejoined the substantive post of Dean in Rajiv Gandhi 3 WP+1630 Medical College of the TMC. On 4/9/09, Dr. Shilotri was removed from the said post pursuant to the order dated 29/4/09 passed by this Court to the effect that superannuated person cannot be appointed to substantive post. Admittedly, on 7/2/2010, a fresh advertisement has been issued and the petitioner has once again applied for the post of Dean. 4. The grievance of the petitioner as voiced by his Counsel Mr. Pradhan is that Dr. Shilotri’s appointment was bad in law, inasmuch as, it was contrary to section 53 of the Bombay Provincial Municipal Corporations Act, 1949. Dr. Shilotri was appointed on deputation on a substantive post. No permission of General Body was taken. Mr. Pradhan, contended that, therefore, substantive vacancy still exists and select list is still in operation. He submitted that the petitioner must, therefore, be appointed to the post of Dean, he being second on the select list. Mr. Pradhan relied on the Supreme Court judgment in Dr. Uma Kant v. Dr. Bhikalal Jain & Ors. (1992) 1 SCC 105. 5. We have also heard Mr. Apte, learned Senior Counsel for Respondents 1 and 2 and learned AGP. 6. The contention of the petitioner that Dr. Shilotri’s appointment was bad in law because there was no sanction of the General Body does not 4 WP+1630 appear to be correct. The select list was placed before the General Body Meeting held on 12/9/07 and it was approved by the General Body. In any case it is not possible for us to entertain this petition because it suffers from gross laches. Dr. Shilotri was appointed on deputation from 14/1/08. The petitioner did not challenge this appointment. Dr. Shilotri retired on superannuation on 30/9/08 in his parent department. The petitioner did not challenge the appointment of Dr. Shilotri as Dean in Rajiv Gandhi Medical College made on 18/11/08. He has filed this petition belatedly on 23/2/2010. 7. The question is whether after such a gross delay the petitioner can fall back on the select list. In this connection, we may refer to the judgment of the Supreme Court in Rakhi Ray & Ors. Vs. High Court of Delhi & Ors. 2010 ALL SCR 542 where the Supreme Court was considering whether after the notified vacancies are filled up, the vacancies which subsequently arise can be filled up by taking recourse to the same select list. The Supreme Court observed that since 13 vacancies of the General Category had been advertised and filled up, the selection process so far as the General Category candidates are concerned, stood exhausted and the unexhausted select list is meant only to be consigned to record room. The Supreme Court clarified that a person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself it 5 WP+1630 does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. The Supreme Court further observed that the waiting list cannot be used as a reservoir and unexhausted select list becomes meaningless and cannot be pressed in service. 8. In view of the above settled legal position it is not open for the petitioner to contend that the earlier select list still exists and he must be appointed to the post of Dean in Rajiv Gandhi Medical College on the basis thereof particularly when a fresh advertisement has been issued and the petitioner has once again applied for the post of Dean. 9. Reliance placed by Mr. Pradhan on the judgment of the Supreme Court on Dr. Uma Kant’s case is misplaced. In that case initially the reserve list was to remain valid upto six months but later the Syndicate of the Rajasthan University by its resolution passed in its special meeting extended the period of the validity of the list to one year. Before the expiry of the extended period of operation of the reserve list, N retired from service and thereupon the appellant who was already in the reserve list was appointed to the post of Professor of Botany. When this was challenged the Supreme Court considered Section 5 with Section 6(4) of the Rajasthan University Teachers and Officers (Selection for Appointment) Act, 1974 and 6 WP+1630 observed that it is clear from the reading of these provisions that the Selection Committee shall recommend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50 per cent of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment, if any vacancy is caused during the validity period of the reserve list. Such are not the facts here. Here the select list was not extended. Facts of Uma Kant materially differ from the facts of the present case, hence Uma Kant has no application to it. 10. In view of the above, the petition is dismissed. (SMT. RANJANA DESAI, J.) (R. V. MORE, J.)