1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7501 OF 2008 ... Rajendra s/o Raosaheb Tambhale age 37 yrs, occ. Service, R/o Aurad Shahajani, Tq. Nilanga, Dist. Latur. ...PETITIONER V E R S U S 1- The State of Maharashtra, Through Director of Marketing, Pune. 1-A Minister, Marketing and Co-operation, Textile, Mantralaya, Mumbai. 2- The Divisional Joint Registrar, Co-operative Society, Latur. 3- District Deputy Registrar, Co-operative Society, Latur. 4- The Administrator, Agriculture Produce Market Committee, Aurad Shahajani, Tq. Nilanga, Dist. Latur. 5- Vishwas s/o Mohanrao Thete, age 36 yrs, occ. Service, R/o c/o. A.P.M.C. Aurad Shahajani, Tq. Nilanga, Dist. Latur. ..RESPONDENTS. 2 Shri.Sachin Deshmukh, Advocate for the petitioner. Shri P.M.Shinde, Assistant Government Pleader for respondents No. 1 to 3. Mr. K.J. Suryawanshi, Advocate for respondent No.4. Mr. S.B.Gastgar, Advocate for respondent No.5. CORAM : B.R. GAVAI, J : DATE : 18 th JULY, 2009. JUDGMENT :- 1. By way of present petition, the petitioner takes an exception to the order passed by the respondent No.1 dated 5 th of February, 2008 thereby dismissing the appeal filed by the present petitioner. 2. Facts in brief giving rise to the present petition are as follows :- The petitioner was working with the respondent No.4, Agriculture Produce Market Committee, Aurad Shahajani, Tq. Nilanga, Dist. Latur. On 15.09.2005, since the post of Secretary of the respondent No.4 Agriculture Produce Market Committee became vacant, the petitioner was given the charge of the Secretary. The order of the administrator giving the charge to the present petitioner of the post of Secretary was confirmed by the Deputy Registrar vide order dated 19 th of April, 2006. Being aggrieved thereby, the respondent No.6 therein filed Writ Petition before this Court bearing W.P.No. 166/2007 by one Raibhan s/o Damodhar Narvade. This Court upheld the order of handing over the charge to the petitioner by observing that the present petitioner possess necessary qualification, vide its order dated 7 th of March, 2007. It appears that thereafter vide resolution dated 10.01.2008 the respondent No.4, Agriculture Produce Market Committee appointed respondent No.5 as a 3 Secretary. Said appointment was cancelled by the respondent No.1 (Director of Marketing) and it was directed that the charge of incharge secretary should be kept with the present petitioner. However, it appears that subsequently, the respondent No.1 (Director of Marketing) cancelled its earlier order dated 29 th of January, 2008 and on 5 th of February, 2008 restored the appointment of respondent No.5. It appears that the petitioner thereafter preferred an appeal before the respondent No.2. The orders in interlocutory proceedings in the said appeal were taken up before this Court. This Court vide order in Writ petition No.4746 of 2008 directed the appeal to be decided expeditiously. Accordingly, the respondent No.1 has dismissed the appeal. Hence, the present petition. 3. Shri Deshmukh, the learned counsel appearing on behalf of the petitioner submits that the appointment of respondent No.5 is totally illegal. He submits that in accordance with the Rules 8,9 it is necessary that a secretary must possess qualification of either B.Sc. (Agri), or B.Com, B.A. (Economics) or LL.B. He therefore submits that the appointment of the respondent No.5 is totally illegal. He further submits that the appointment has been done at the instance of politicians and under the influence of Honourable Minister and as such on the said ground also, the impugned order was unsustainable. 4. The learned counsel relying on the Judgment of Division Bench of this Court in the case of Pandurang Subrao Dhabugade and another vs. Agriculture Produce Market Committee and others reported in 2004 (4) Bom.C.R.172 submits that, “appointment to the post of Secretary is required to be made by giving promotion to the employees already in service with the Market Committee. He submits that any exception made thereto necessitates 4 recording of reasons. He submits that since special reasons are not given, the appointment of the respondent No.5 is not permissible in.” He submits that in accordance with the service Rules, the petitioner ought to have been appointed as Secretary by promotion. 5. Shri Salunke, the learned counsel appearing on behalf of respondent No.5 on the contrary submits that the petitioner has no locus standi to file present petition. He submits that the petitioner has no qualification in as much as he does not possess three years degree of Bachelor of Science (agriculture) or a degree of Bachelor of Law. He submits that the petitioner was not even entitled to be promoted as Assistant Secretary in as much as there was no approved post of Assistant Secretary. It is further submitted that the petitioner has not filed any proceedings challenging the appointment order of respondent no.5 and as such, the petition was without substance. 6. He further submits that since the respondent No.5 was appointed from the project affected category, it would not be necessary give an advertisement calling applications and he could have been directly appointed. 7. This Court vide its order dated 8 th of May, 2009 had directed the Director of Marketing Pune to file an affidavit as to which rules govern the recruitment of the Agriculture Produce Market Committee. Accordingly, an affidavit was filed by the Director of Marketing Pune, on 26 th of June, 2009 Since said affidavit was not found to comply with the directions issued by this Court, it had directed the Director of Marketing to remain present. Accordingly, Director of Marketing was present in the Court and has filed an affidavit explaining the position. In the said affidavit it has been stated that the consultation committee of the Marketing in the Maharashtra State has framed 5 model bye laws for the marketing committee and the same have been approved by the Director of Marketing on 9 th of September, 1967. These model bye laws have been adopted by the respondent No.4 Market Committee. The model bye law No.39 is in respect of framing recruitment rules and conditions of service. The bye law No.39 therefore, makes a provision for framing recruitment rules and prior approval thereto from the Director of Marketing. Rule 100 of the Agriculture Produce Market Committee Rules 1967 also provides for previous approval of the Director for making appointment. It is further stated that, the consultation committee of Marketing in the Maharashtra State has also prepared model service rules for the services in the market committees in the State and the same are approved by the Director of Marketing on 5 th of December, 1966. He has further stated that rule No.2 of the said rules provide for adoption of these rules by the Market Committee and it further provides that they would come into effect from the date of resolution adopting the rules passed by the concerned Market Committee. It has further been stated that market committee is yet to adopt model service rules. 8. It appears that earlier secretary of respondent No.4 namely Pandurang Naikwade had retired on 21.07.2003. Thereafter charge of the Secretary was handed over to the present petitioner vide resolution dated 15 th of September, 2005. As already stated herein above, the matter relating handing over of the charge to the present petitioner had come up for consideration before this Court vide writ petition No.166/2007. This Court found that decision of the District Deputy Registrar directing the handing over of the charge to the present petitioner warranted no interference. It appears that thereafter a letter came to be addressed by one Ashokrao Patil Nilangekar to the Minister of Marketing, 6 thereby recommending the name of respondent no.5 for appointing as Secretary. Vide letter dated 29.12.2007 proposal was sought by the Director of Marketing from respondents No.3 and 4 regarding the appointment of respondent No.5. Administrator of respondent No.4 vide letter dated 31.12.2007 forwarded the proposal of respondent No.5 to the respondent No.3. The respondent No.3. made his report to the Director of Marketing dated 04.01.2008 observing that the marketing committee had not approved the service regulation rules and that appointment made by the committee earlier were not made in accordance with the prescribed procedure. The Director of Marketing vide his communication dated 07.01.2008 addressed to the respondent No.4, directed that committee should get the service regulations approved and that the post of the secretary should be filled by following the instructions given from the said office and procedure prescribed. It was also directed that no appointment to any post should be made without prior approval. However, it appears that inspite of said specific direction, respondent No.4, on 10.01.2008 appointed present respondent No.5 to the post of the secretary. The Director of Marketing vide his communication dated 29.01.2008 cancelled the order passed by respondent No. 4 appointing respondent No.5 as secretary. It has been observed that, if new person is appointed as secretary, the expenditure would cross approved limit. It is further observed in the said order, that if the present petitioner is appointed as secretary, expenditure would not cross the limit. It was therefore, directed that since the powers to make appointment of secretary are with the Director of Marketing necessary proposal should be sent by respondent No.4 through respondent No.3. It is further directed that charge of the secretary should be retained with the present petitioner. However, it appears that immediately on 7 the next day i.e on 30.01.2008 said Ashokrao Patil Nilangekar addressed communication to the Honourable Minister for Marketing stating therein that the respondent No.5 was legally appointed and he should be permitted to continue as secretary. Immediately, on 5 th of February, 2008 the Director of Marketing cancelled his communication dated 29.01.2008 and granted permission to the respondent No.4 committee to make appointment to the post of secretary. 9. It appears that thereafter present petitioner challenged the said communication dated 5th of February, 2008 before this Court. This Court initially stayed the said order vide its order dated 11th of March, 2008. However when the petition was heard on 02.05.2008, this Court found that it would be appropriate that the petitioner takes recourse to the alternate remedy of appeal. Accordingly, the petitioner preferred an appeal before the respondent No.1. Said appeal is dismissed. The respondent No.1 in the order impugned has held that the respondent No.4 had not framed any rules. It is held that though there are recruitment rules concerning the Nilanga Market committee there are no rules concerning Aurad committee. It has been held that the respondent no.5 was directly appointed as secretary since he was from the category of project affected persons. It is further observed that it was not necessary to appoint him by giving advertisement or by following prescribed procedure. 10. At the outset, I have no hesitation to hold that appointment of respondent no.5 appears to be patently dehors the rules and on some extraneous consideration. It can be seen that though the Director of Marketing on 29.01.2008 had himself refused to grant approval to appointment of respondent No.5, as Secretary, on 05 of February, 2008 he had cancelled the said order. It could clearly be seen that during the period of these six days, a letter 8 was written by one Shri Ashokrao Patil Nilangekar, to the Honourable Minister for Marketing in this regard. It is apparently clear that only because of endorsement on the said letter by the Honourable Minister to the effect “_______________”, that Director of Marketing has changed his stand. Though the recruitment rules are not adopted by the Aurad Agriculture Produce Market Committee, it can clearly be seen that present Aurad Agriculture Produce Market Committee has been carved out from earlier Nilanga market committee. It can be seen from the notification vide which Nilanga Committee was bifurcated into Nilanga and Aurad market committee, that on bifurcation of the committee, the service condition of the employees allotted to Aurad Committee would be the same which were applicable to them earlier and they cannot be changed to the detriment of the employees without prior approval of Director of Marketing. It could thus be clearly seen that even if new committee has not adopted the model recruitment rules, model recruitment rules which was duly approved by Nilanga committee would be applicable to the employees allotted to the Aurad committee. 10. From the perusal of rules 26, which was duly approved by the Nilanga Committee and which in terms of notification, bifurcating Nilanga Agriculture Produce Market Committee, would govern service conditions of the employees allotted to Aurad Agriculture Produce Market Committee it can be seen that the post becoming vacant or newly created post in the Agriculture Produce Market Committee, in normal course are required to be filled by mode of promotion. If any exception is made thereto it can only be made by reasons to be recorded in writing. The Division Bench of this Court in the case of 9 Pandurang Subrao Dhabugade and another vs. Agriculture Produce Market Committee and others reported in 2004 (4) Bom.C.R.172 has observed thus :- “13. It is also necessary to consider the provisions of Rule 46 of Service Rules. Under that Rule, an appointment of employees on the posts falling vacant or newly created in the Market Committee should be made, as far as possible, by giving promotion to the employees already in service with the Market Committee. Only in exceptional cases and for reasons to be recorded, direct selection by nomination is permissible. It is asserted by the petitioner that such candidates are available who are in service with respondent No.1 Market Committee, and hence the post of Secretary of the Market Committee ought to have been made by promoting one of such employees and yet the said action has not been taken. No reasons have been recorded why without taking recourse to Rule 46, respondent No.5 was directly nominated and appointed as Secretary. Thus, even on that ground, the petition deserves to be allowed.” 14. “ The matter did not end there. Even with regard to educational qualifications, in our view, the contention raised on behalf of the petitioners is well-founded and must be upheld. To repeat, Service Rules provide for educational qualifications. As per Rule 11, a Secretary must be either B.Sc.(Agri.) or B.Com or B.A. (Economics) or LL.B. Though respondent No.5 is B.Sc admittedly he has not passed B.Sc. With agriculture. No doubt, he is Master of Business Administration (MBA) . It is also true that there is power of relaxation in the Service Rules. In our opinion, however, when eligible and qualified candidates are available, the said mode ought to have been adopted, By not taking into account and resorting to such mode prescribed in the Service Rules and by appointing respondent No.5, the respondents have 10 committed an illegality which cannot be said to be lawful or proper on the part of the authority which can be said to be “State” within the meaning of Article 12 of the Constitution. 11. It could thus be seen that Division Bench has clearly held that, an appointment of employee on the post becoming vacant or newly created in the marketing committee should be made as far as possible by giving promotion to the employees. Division Bench has further held that service rules provide that educational qualification for secretary is B.Sc.(Agri), B.A.(economics), B.Com or LL.B. It could thus clearly be seen that petitioner holds an LL.B degree which was the requisite qualification to hold the post of Secretary. In a normal course, he ought to have been appointed as Secretary. Not only this but the Director of Marketing vide his communication dated 29 th of January, 2008 had also observed that appointment of the present petitioner as secretary would be in the interest of the society as it would curtail the expenditure. It also appears that only due to intervention of Honourable Minister of Marketing on the letter of Ashokrao Patil Nilangekar, Director of Marketing has changed his stand. It could also be seen that the respondent No.6 is only B.A. As already discussed hereinabove requirement is at least B.A. (Economics). It is thus clear that respondent No.6 was not qualified to hold the post of Secretary. The Director of Marketing had rightly refused to grant approval to the appointment of respondent No.5. The Honourable Minister has rejected the appeal only on two grounds. First is that no service regulations in so far as Aurad A.P.M.C are framed and secondly since respondent No.6 is a project affected person, he can be appointed directly without publishing advertisement and following rules. I find that Honourable Minister has totally erred. As already observed hereinabove as Aurad APMC is bi-bifurcated from Nilanga APMC the rules 11 applicable to the Nilanga Agriculture Produce Market Committee are also applicable to the employees allotted to Aurad Agriculture Produce Market Committee unless and until they were substituted by new rules in accordance with the provisions. Admittedly, new rules are yet to be framed for the Aurad Agriculture Produce Market Committee and as such, the service conditions of the employees would be governed by model recruitment rules which are duly approved by the Nilanga Agriculture Produce Market Committee. 12. In so far as second contention on which appeal is rejected by the Honourable Minister, that respondent No.5 is a project affected person and as such, he can be directly appointed without issuing advertisement and following recruitment rules is concerned, the same is also without substance. Full bench of this Court in the case of Rajendra Pandurang Pagare and another versus The State of Maharashtra and others in Writ Petition No.5266 of 2008 has held that even in case of project affected persons, the appointment can not be made without advertising the posts and dehors the relevant recruitment rules. In that view of the matter, I find that order passed by the Honourable Minister is not justifiable in law. The Director of Marketing had rightly passed an order dated 29 th of January, 2008 and had erred in reversing the same on 5 th of February, 2009. 13. In the result, the petition deserves to be allowed. Rule is made absolute in terms of prayer clause “A”. ( B. R. GAVAI, J. ) aaa/7501.08wp .... 12 DATE : 18TH JULY, 2009 14. At this stage, Shri S.B.Gastgar, the learned counsel appearing on behalf of the respondent No.5 prays for stay to the judgment and order passed by this Court. In the light of the view that I have taken, which is in consonance with the law laid by the Division Bench of this Court in the case of Pandurang, (cited supra) I am not inclined to grant the prayer. Hence, prayer stands rejected. ( B.R.GAVAI, J. ) ... aaa/7501.08wp.odt “AUTHENTICATED COPY” (Mrs. Anuja A. Ankush) Personal Assistant to the Hon’ble Judge.