1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1641 OF 2009 1. Hanumant S/o Laxman Sarvade, Age : 28 Years, Occu. : Service, R/o Chivadi, Tq. & Dist. Osmanabad. 2. Dharmaveer S/o Ghansham Jadhav, Age : 21 Years, Occu. : Service, R/o Ghatangri, Tq. & Dist. Osmanabad. 3. Netaji S/o Shivaji Dudhbhate, Age : 24 Years, Occu. : Service, R/o Yenegoor, Tq. Omerga, Dist. Osmanabad. .. .. PETITIONERS Versus 1. The State of Maharashtra 2. The Divisional Commissioner, Aurangabad Division, Aurangabad. 3. The Chief Executive Officer/ The President Selection Committee, Zilla Parishad, Osmanabad. 2 4. Maharashtra Knowledge Corporation Limited, Pune, through Its General Manager, Dr. Atul Vadegaonkar .. .. RESPONDENTS Shri S. A. Wakure, Advocate for the Petitioners. Shri S. K. Kadam, A.G.P. for the Respondents/State. Shri P. S. Patil, Advocate for the Respondent No. 2. Shri M. P. Tripathi, Advocate h/f Shri S. B. Ghute Patil, Advocate for the Respondent No. 3. WITH WRIT PETITION NO. 6502 OF 2008 01. Sajor D/o Madhukar Bhagwat, Age : 21 Years, Occu. : Service, R/o Bhoom, Dist. Osmanabad. 02. Chhya Vishnu Gosavi, Age : 28 Years, Occu. : Service, R/o Bhoom, Dist. Osmanabad. .. .. PETITIONERS Versus 1. The State of Maharashtra 2. The Secretary Rural Development Department, Mantralaya, Mumbai. 3. The Chief Executive Officer/ Zilla Parishad, Osmanabad. 3 4. General Manager, Maharashtra Knowledge Corporation Limited, Pune, 5. The Secretary, District Selection Committee, Osmanabad. .. .. RESPONDENTS Smt. M. A. Kulkarni, Advocate for the Petitioners. Shri K. B. Choudhari, Addl.G.P. for the Respondents/State. Shri M. P. Tripathi, Advocate h/f Shri S. B. Ghute Patil, Advocate for the Respondent No. 3 to 5. Shri P. C. Mayure, Advocate h/f Shri S. G. Chapalgaonkar, Advocate for the Respondent. WITH WRIT PETITION NO. 6655 OF 2008 1. Dayanand S/o Baburao Waghmare, Age : 32 Years, Occu. : Service, R/o At Post Teburni, Tq. Ahmedpur, Dist. Latur. 2. Balaji S/o Dnynoba Supnar, Age : 24 Years, Occu. : Service, R/o At Post Barul, Tq. Tuljapur, Dist. Osmanabad. 3. Sudhakar S/o Dnyandeo Patil, Age : 40 Years, Occu. : Service, R/o At post Lohara Tq. Lohara, District Osmanabad. 4 4. Gautam S/o Mahadeo Daware, Age : 37 Years, Occu. : Service, R/o At Post Wadgaonkati, Tq. Tuljapur, Dist. Osmanabad. 5. Sau. Shalan W/o Bharat Pawar, Age : 30 Years, Occu. : Service, R/o At post Kavaldara, Tq. & Dist. Osmanabad. 6. Sou. Sangita W/o Dhulappa Katake, Age : 30 Years, Occu. : Service, R/o At Post Kakramba, Tq. Tuljapur, 7. Jyotiram S/o Gorakh Jadhav, Age : 22 Years, Occu. : Service, R/o Takli (B), Tq. & Dist. Osmanabad. 8. Kalyan S/o Umrao Koli, Age : 27 Years, Occu. : Service, R/o C/o B. G. Balwande, Shikshak Colony, Osmanabad, Tq. & Dist. Osmanabad. 9. Tahesin Gulam Mohiddin Husaini, Age : 23 Years, Occu. : Service, R/o Taleem Galli, Rajabaugh, Osmanabad, Tq. & Dist. Osmanabad. 10. Rajendra S/o Manik Suryawanshi, Age : 45 Years, Occu. : Service, R/o At Post Lohara, Tq. Lohara, Dist. Osmanabad. 5 11. Laxman S/o Rajendra Kanthe, Age : 25 Years, Occu. : Service, R/o Shahu Nagar, Osmanabad, Tq. & Dist. Osmanabad. 12. Irshad Akbar Shaikh, Age : 29 Years, Occu. : Service, R/o Dhutta, Tq. & Dist. Osmanabad. 13. Pravin S/o Shivaji Patil, Age : 22 Years, Occu. : Service, R/o Wanewadi, At Post Kathi, Tq. Tuljapur, Dist. Osmanabad. 14. Anil S/o Digambarrao Kamble, Age : 32 Years, Occu. : Service, R/o Karadkhed, Tq. Degloor, Dist. Nanded. 15. Netaji S/o Sitaram Kumbhar, Age : 23 Years, Occu. : Service, R/o Sarola (Bk), Tq. & Dist. Osmanabad. 16. Mahesh S/o Ambadasrao Devanikar, Age : 28 Years, Occu. : Service, R/o Degloor, Tq. Degloor, Dist. Nanded. 17. Sau. Sandhya W/o Harishchandra Sonawane, R/o Sant Gorobakaka Nagar, Sanja Road, Osmanabad, Tq. & Dist. Osmanabad. .. .. PETITIONERS 6 Versus 1. The State of Maharashtra 2. The Divisional Commissioner, Aurangabad Division, Aurangabad. 3. The Chief Executive Officer Zilla Parishad, Osmanabad. 4. Maharashtra Dnyan Mandal Limited, Pune, through Its General Manager, Dr. Atul Vadegaonkar. 5. Gopal S/o Bhagwat Lawate, Age : 28 Years, Occu. : Nil, R/o Yedshi, Tq. & Dist. Osmanabad. 6. Gopal S/o Maruti Jadhav, Age : 29 Years, Occu. : Nil, R/o Yedshi, Tq. Osmanabad, Dist. Osmanabad. .. .. RESPONDENTS Shri S. P. Wakure, Advocate for the Petitioners. Shri S. V. Kurundkar, Addl.G.P. for the Respondent/State. Shri M. P. Tripathi, Advocate h/f Shri S. B. Ghute, Advocate for the Respondent No. 3. Shri P.C. Mayure, Advocate h/f Shri S. G. Chapalgaonkar, Advocate for the Respondent No. 4. Shri S. B. Bhosale, Advocate for the Respondents No. 5 and 6. 7 CORAM : A. P. DESHPANDE & N. D. DESHPANDE, JJ. DATE : 02ND FEBRUARY, 2010. J U D G M E N T [ PER N. D. DESHPANDE, J. ] : 1. Rule. Rule made returnable forthwith. Taken up for final hearing with consent of parties at the stage of admission. 2. All the three petitions involve common question of law and fact. The petitioners in these three petition question the legality of order dated 01.11.2008 of stay to their appointment orders passed by the respondent No. 3 and seek to challenge the recruitment process on the basis of additional/revised list. 03. Heard both the sides. 04. With a view to fill in vacancies in Class IV posts, the respondent No. 3/Zilla Parishad issued an advertisement inviting applications from eligible candidates. The selection process included written test, so also oral interviews. The written test was to be conducted by an expert agency viz respondent No. 4. The evaluation of answer papers was conducted by the expert agency by 8 adopting computerized marking system and a list of successful candidates in the written exam was forwarded to the Zilla Parishad. 05. Based on the said list, the Zilla Parishad issued interview calls to all concerned including the petitioners. The petitioners were selected and appointment orders were issued, in pursuance of which the petitioners joined. During the intervening period some complaints were received by some of the Zilla Parishads pointing out errors in the computerized marking of answer papers and hence the same were forwarded to respondent No. 4. Respondent No. 4 examined the answer sheets afresh. It also conducted manual checking and detected mistakes. Computer-Bug had resulted in errors in allocation of marks. Hence respondent No. 4, after rechecking the answer papers, prepared a correct list of successful candidates. 06. The candidates whose names figured in the corrected select list, but were omitted in the incorrect list published earlier, were also issued interview calls and were interviewed. A fresh select list/merit list was drawn, in which list the names of the petitioners does not find place. 07. The correctness of the process adopted by the respondent No. 9 4 in preparing final select list after correction of errors, rechecking answer sheets and preparing final merit list was considered by this court vide judgments rendered in W.P. No. 5535 of 2008, in identical set of facts. It is also confirmed by the Supreme Court in its order dated 17.07.2009 passed in S.L.P. No. 13639/2009. The Court found that the rechecking of answer sheets was inevitable as failure to do so would have eliminated meritorious candidates. 08. As the present petitioners were immediately issued appointment orders, even before the corrected select list was drawn, the petitioners had joined, hence the impugned stay order was issued. 09. Fact remains that petitioners name do not figure in the corrected select list which came to be published after consideration of the claim of candidates found eligible after the rechecking of answer papers of the written exam. 10. In the above factual background the merit of the petition needs to be considered. With these observations we proceed further to decide every petition on its merits. 11. In Writ Petition No. 1641 of 2009, the petitioner No. 1 and petitioner No. 2 are not included in the select list. Document at Exhibit R-5 filed by the respondent No. 3 paper book page 46, shows 10 considerable variations. In case of petitioner No. 1, there is difference of (minus -20) and in the case of petitioner No. 2 there is difference of (minus -28). As such, no case is made out for giving any protection to them. Their petition, therefore, deserves to be dismissed. Hence writ petition No. 1641 of 2009 stands dismissed with no order as to costs. 12. In Writ Petition No. 6502 of 2008 and Writ Petition NO. 6655 of 2008 all petitioners were protected by order dated 12th November, 2008 by this Court to which one of us ( N. D. Deshpande, J) is party. By granting ad-interim relief, it was directed to the respondents not to terminate the service of petitioners until further orders. In the light of order passed during the course of hearing of Writ Petition NO. 6655 of 2008, the petitioners in all these petitions were protected till today. 13. In Writ Petition No. 6502 of 2008 on perusal of record Exhibit R-5 paper book page No. 34, it is found that there is no change in the marks of petitioner NO. 1 Smt. Saroj Madhukar Bhagwat. As such, she needs to be protected. 14. However, no case is made out by the petitioner No. 2 Chaya Vishnu Gosavi, who failed to find place in the merit list as there is considerable variations noticed in Exhibit R-5, a statement of 11 marks. The difference shown is (minus -23) and there is reduction in marks. As such, her petition and claim therein deserves to be dismissed. 15. In the light of above observations, the claim in Writ Petition No. 6502/2008 of petitioner No. 1 Smt. Saroj Madhukar Bhawat is allowed in terms of prayer clause 'C' and claim of petitioner No. 2 Chhya Vishnu Gosavi is dismissed. 16. In Writ Petition No. 6655 of 2008, there are in all 17 petitioners, who filed this common petition. We have minutely scrutinized the record and examined documents Exhibit R-5 paper book page 47, the statement of marks as per the previous list received from Maharashtra Knowledge Corporation Limited and after manually checking at Zilla Parishad leval submitted by the respondent No. 3 refering to these petitioners and find no change in the marks of petitioner No. 5 Sau Shalan W/o Bharat Pawar, petitioner No. 6 Sau. Sangita W/o Dhulappa Katke and petitioner No. 12 Irshad Akbar Shaikh. Therefore, their petition needs to be allowed. 17. However, no case is made out by other petitioners. There is reduction in their marks after manually checking at the Zilla Parishad level. The difference can be shown with their marks as, 12 petitioner No. 1 (minus -20.75), petitioner No. 2 (minus -22), petitioner No. 3 (minus -7), petitioner No. 4 (minus -20), petitioner No. 7 (minus -27), petitioner No. 8 (minus -7), petitioner No. 9 (minus -33), petitioner No. 10 (minus -13), petitioner No. 11 (minus -26), petitioner No. 13 (minus -26), petitioner No. 14 (minus -19), petitioner No. 15 (minus -22), petitioner No. 16 (minus -22), petitioner No. 17 (minus -3.75). As such, their petition and claim therein deserves to be dismissed. 18. Therefore, the claim of petitioner No. 5 Shalan Bharat Pawar, Petitioner No. 6 Sangita Dhulappa Khatke and Petitioner No. 12 Irshad Akbar Shaikh is allowed in terms of prayer clause 'C' and claim of other petitioners stands dismissed. 19. Hence these three petitions are disposed of by this common judgment. However, there shall be no order as to costs. Needless to state that earlier interim order passed in favour of petitioners No. 2 in Writ Petition No. 6502 of 2008 and in favour of petitioners No. 1 to 4, 7 to 11 and 13 to 17 in Writ Petition No. 6655 of 2008 stand vacated. [ N. D. DESHPANDE, J.] [ A. P. DESHPANDE, J.] bsb/Feb. 2010 13 14 04. Pursuant to the advertisement published by Zilla Parishad in May 2008 for filling in the vacancies of the Class IV, the petitioners offered their candidature and came to be appointed to the post of attendant Class IV by order dated 14th August, 2008, after their written examination and interviews by following due procedure. Accordingly, they had taken charge of their respective posts immediately and complied with required conditions by submitting the relevant documents to the respondent No. 3. 05. The dispute arose on or about 18.09.2008 when respondent No. 3 obtained certain clarification and sought directions/instructions from respondents No. 1 and 2 in the matter of appointments given to the petitioners and the procedure adopted in the light of additional list submitted to the respondent No. 3 by the respondent No. 4/Corporation. The petitioners learnt that on the instructions of respondent No. 1, the answer papers of the candidates were rechecked by the respondent No. 4. A additional list was prepared after rechecking the answer papers of the candidates and fresh interview letters were sent to those candidates later on found eligible for the interview. On that basis of the additional list of respondent No. 4 earlier appointments were stayed by order dated 01.11.2008, without any notice to the petitioners who were working at the respective place of work since their appointment. It is the impugned order in these petitions. It was 15 communicated to the petitioners. Consequently, the concerned departments issued relieving orders to them dated 03.11.2008. 06. It is therefore, stated that the impugned order of stay to their appointments is arbitrary, inconsistent, illegal and contrary to the provisions of law and against the principles of natural justice, for their appointments are regular appointments followed by advertisement, written examination and interview conducted and on merits. 07. On behalf of respondent No. 3 a reply affidavit came to be filed. Perused the said affidavit. In the light of the submissions of the respondent No. 3, it is stated that there were some complaints at the instance of Solapur Zilla Parishad and the Maharashtra Knowledge Corporation Limited found some error in application of Rules in generating the results through scanning and computerizing process and, therefore, Maharashtra Knowledge Corporation Limited took a decision to reassess/re-verification of the results and the said decision was communicated to the Divisional Commissioner, Aurangabad regarding re-verification of the result. The office of the Divisional Commissioner also directed the Zilla Parishad to reassess the answer sheets and act upon the merit list prepared as per re-assessment. Accordingly, respondent No. 3 took necessary steps as per the directions of the Divisional 16 Commissioner, Aurangabad and the Rural Development Department of Maharashtra State and accordingly, revised list was accepted by the District Selection Committee. The respondent No. 3 relied on the relevant communication in the matter of instructions and the steps taken while preparing the revised list. 08. Mean while, Zilla Parishad also completed re-assessment of marks of all candidates and as per model answer sheet and found that the revised list is correct. Accordingly, the meritorious candidates left out earlier were called for interview. The revised list came to be prepared on the marks obtained in the written examination and the interview. In short, bone of contention of respondent No. 3 is that the petitioners were given appointment as per incorrect merit list and as such, they cannot claim the appointments as of rights. Their alleged claim in the petition is misconceived, since the appointment given to them were purely temporary and always subject to correction. For any irregularity or illegality committed or noticed on either side, in the process of selection. The respondents confirmed the revised list as true and correct after manually checking it and the newly added more meritorious candidates were called for oral interview. 09. It is pointed out and further made clear that there was reduction of marks of the petitioners in revaluation by Maharashtra 17 Knowledge Corporation Limited and, therefore, they are not eligible and, therefore, they are not allowed to continue in the service as more eligible and proper candidates are available and, thus, justified the impugned order and urged for dismissal of these petitions. 10. Upon consideration of record and the documents submitted by both the parties, it is found that there is no mala-fide in the action of the respondent authority for directing reassessment or re- verification of marks for preparation of correct merit list to do justice to more meritorious and eligible candidates in the selection process as observed by this Court in earlier such cases. It is found in conformity with such directions and observations made by this Court. Therefore, the case of the respondents needs to be accepted for giving effect to the revised merit list.