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Judgment
Smt. R. S. Dalvi, J.—The essence of this Contempt Petition is that the appointment has been made despite an undertaking given not to make any appointment pursuant to an advertisement issued which has been challenged in this writ petition filed by the petitioner, bearing Writ Petition No. 388 of 2007. In the Writ Petition, the petitioner challenged the advertisement dated 20.04.2006. The advertisement showed 30 vacant posts which were to be filled in. The petitioner contended that as many as 120 appointments were sought to be made under the same advertisement. The petitioner contended that had this fact been known to the petitioner as also others, the applications by the candidates would have been differently made. In Writ Petition No. 388 of 2007, M.C.A. No. 753 of 2007 was taken out. On 27.11.2007, the learned Advocate General made a statement on instructions that the respondents were not making appointment pursuant to the advertisement dated 20.04.2006. It is the petitioner''s case that this undertaking has been breached. One Amar Naik has been offered temporary appointment to the post of Lower Division Clerk, which was prior to the filing of the Writ Petition NO.388 of 2007 on 02.08.2007 and prior to the statement being made, which is stated to have been breached.
Amar Naik filed Writ Petition No. 429 of 2008. In that Writ Petition on 01.09.2008, a statement came to be made by the learned Advocate General offering appointment to the said Amar Naik upon the ground that a candidate had not resumed which created a vacancy and hence the said Amar Naik would be appointed to the vacant post of Lower Division Clerk in Public Works Department. In the light of that statement, the Writ Petition filed by Amar Naik came to be disposed off.
Hence it is seen that whereas the statement was made by the learned Advocate General in the Writ Petition of the petitioner herein that they would not appoint pursuant to the advertisement dated 20.04.2006, in the Writ Petition No. 388 of 2007, a statement was made by the learned Advocate General that they would appoint Amar Naik to the vacancy in the post advertised in that advertisement. On 18.09.2008, the order of temporary appointment came to be issued.
Amar Naik has been shown 7th on the wait list. The respondents have explained how six other wait listed candidates have been considered, some of whom have not reported.
The statement dated 01.09.2008 shows the justification for appointing Amar Naik - that at that time the select list was in force. It is argued on behalf of the petitioner that the offer of appointment dated 17.04.2007 was made when no vacancy was shown. The appointment was sought to be made pursuant to that offer when only some vacancy was shown.
It is argued on behalf of the respondents that after the statement came to be made in the petitioner''s Writ petition, no offer of temporary appointment has been made by the respondents. Only temporary appointments have been made by them pursuant to the offers made before in the statement been made in the petitioner''s writ petition. Hence the respondents contend that there is no breach of the statement made by the learned Advocate General. The statement of the learned Advocate General was not in respect of making any further offers of appointment. The statement was not to act upon the advertisement which was published as far back as 20.04.2006. If the respondent was not to act on the advertisement, the acts would include offer of temporary appointment as also appointment thereof.
Hence strictly speaking, the statement made by the learned Advocate General upon the notice of the respondent''s officer has been breached. The petitioner demands punitive action.
After this writ petition was heard, the respondent has applied in the petition of Amar Naik bearing Writ Petition No. 429 of 2008 to modify the earlier order dated 01.09.2008 passed in that Writ Petition with the consent of the petitioner therein to bring it in conformity with the directions issued by this Court and the statement made in the petitioner''s Writ petition No. 388 of 2007. Hence on that application, upon the modification being allowed, the appointment of Amar Naik has been specifically made subject to the result of Writ petition No. 388 of 2007.
The modification to the order dated 01.09.2008 is sought and granted. The order dated 01.09.2008 is itself contended to be collusive by the petitioner''s advocate. It has been argued that based upon that order, the said Amar Naik who was 7th in the wait list was appointed pursuant to the advertisement dated 20.04.2006 and despite the statement made on 27.11.2007. The said Amar Naik was appointed ostensibly in view of the vacancy which then existed. That appointment is now made subject to the case of the petitioner in this Writ petition.
One must understand the impact of the statement made pursuant to which the appointment came to be made for the post of Amar Naik and the modification pursuant to which the appointment would be considered in that petition.
Upon the statement made on 01.03.2008 the appointment of Amar Naik would be absolute. Upon the modification it would be subject to the petitioner''s contentions in this Writ petition. Hence the temporary appointment of Amar Naik would be liable to be revoked and cancelled if the petitioner''s contentions in the Writ petition were upheld. This would be without the petitioner seeking to join Amar Naik as one of the respondents in his Writ petition and would make the appointment of Amar Naik amenable to the contention of the petitioner. The petitioner would therefore, not be prejudiced as he would have been if Amar Naik or one such other candidate came to be appointed under the Advertisement issued on 01.04.2006. In view of such amendment and modification, the punitive action against the respondent at least at this stage need not be taken. This petition can be disposed off upon specific directions passed by the Court itself which would go further then the statement made by the learned Advocate General so as to prevent any further action which would tantamount to breach of the said statement. Hence the following order:
ORDER
In view of the modification allowed and granted by the Division Bench of this Court under order dated 24.04.2009 in M.C.A. No. 379 of 2009 in Writ Petition No. 429 of 2008 filed by one Amar Vithal Naik making the appointment of the said Amar Vithal Naik subject to the result of Writ Petition no.388 of 2007 filed by the petitioner herein, no further punitive action upon the temporary appointment made of the said Amar Vithal Naik as Lower Division Clerk under order dated 18.09.2008 is taken. However, the respondent shall not issue any further letters of offer of appointment or issue any further orders of appointment, temporary or otherwise, to any other person in any post advertised under the advertisement dated 20.04.2006. Contempt petition is disposed of accordingly.