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2010 DIGILAW 1513 (BOM)

The State of Maharashtra v. Ajay Bhimrao Pawar

2010-10-12

S.B.DESHMUKH, SHRIHARI P.DAVARE

body2010
JUDGMENT : SHRIHARI P. DAVARE, J. 1. Rule. Rule made returnable forth with, and with the consent of learned Counsel for the parties, petition is taken up for final hearing at the admission stage itself. 2. By the present petition filed under Articles 226 and 227 of the Constitution of India, the Petitioners-original respondents challenge the legality and validity of the impugned judgment and order dated 8.9.2009 passed by the learned Members, Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad ("MAT" for brevity), in Original Application No.383 of 2008. 3. Petitioner No.5 herein published an advertisement in local newspaper, inviting applications for appointments to the posts of Nursery Assistant. In all, there were four posts, out of which one each was reserved for candidates belonging to the Scheduled Tribe and Scheduled Caste categories, and remaining two posts were for open category candidates. Written test was conducted on 12.1.2008 and result thereof was declared on 15.1.2008. Thereafter, eligible candidates were called for oral interviews on 8.2.2008. The interview committee published the entire mark-list and respondent Nos.1 and 2 herein were declared to be the selected candidates for two posts for open category, whereas, Respondent Nos. 3 and 4 were declared as candidates selected for the posts reserved for scheduled caste and scheduled tribe categories respectively. It is reported that in all, there were 140 applicants out of which, 114 candidates appeared for the written examination and 14 candidates were called for oral interview for aforesaid four vacancies. 3. However, the entire selection process was challenged by one Sachinkumar Tumaram Shinde and Santosh Madan Mote, by application dated 14.2.2008 addressed to the Collector, Dhule, thereby expressing doubt about the entire selection process, on two counts. Firstly, in the advertisement, qualification required is indicated to be holder of Agricultural Diploma after passing of 10th standard, although according to the Rules, requisite qualification is passing of 7th standard and one year's training course of Mali. Secondly, one of the candidates in the written test have secured 73 and 75 marks out of total 75 marks, and suspicion was expressed that even the best expert in the field would not be in a position to secure such marks. Secondly, one of the candidates in the written test have secured 73 and 75 marks out of total 75 marks, and suspicion was expressed that even the best expert in the field would not be in a position to secure such marks. Moreover, it appears that some representatives of people had also made serious complaints about the selection process, to the Hon'ble Minister for Agriculture and, therefore, it was directed that the selected candidates may not be issued appointment orders for the time being, and an enquiry should be conducted regarding complaints of the representatives of the people and the report should be submitted to the Directorate. Consequently, the petitioners herein cancelled the selection process and the selection list of the present respondents for the post of Nursery Assistant. 5. Hence, the respondents herein filed Original Application No.383 of 2008 before the learned MAT, Aurangabad Bench, challenging the decision of the petitioners herein, cancelling selection process and selection list of the respondents for the posts of Nursery Assistant and sought directions for consideration of respondents for appointments to the said post, being qualified and selected. 6. Upon receipt of notice, the present petitioners appeared in the said Original Application before the learned MAT and filed reply and opposed the same. After hearing rival submissions advanced by both the parties, learned MAT allowed the said Original Application filed by the respondents herein, by judgment and order dated 8.9.2009 in terms of prayer clauses (A), (B) and (C) thereof, and expressed that the Tribunal expects the petitioners herein to issue orders of appointments to the original applicants-respondents herein at the earliest and in any case within the period of one month from the date of the said judgment. Being aggrieved and dissatisfied by the said judgment and order of learned MAT, Aurangabad Bench, original respondents-petitioners herein have filed present petition, challenging the same and praying for quashment thereof Submissions 7. Shri R.P. Phatke, learned A.G.P. for the petitioners canvassed that the learned MAT has not considered the contentions raised by the petitioners herein in respect of the very advertisement, wherein the requisite qualification was not properly mentioned as per the rules and the said aspect is a vital aspect in the selection process. Shri R.P. Phatke, learned A.G.P. for the petitioners canvassed that the learned MAT has not considered the contentions raised by the petitioners herein in respect of the very advertisement, wherein the requisite qualification was not properly mentioned as per the rules and the said aspect is a vital aspect in the selection process. It is also contended that as soon as the said mistakes were brought to the notice of the petitioners-authorities, necessary steps were taken by the authorities for rectification thereof, and therefore, there is no illegality committed by the petitioners-authorities, but in spite of the same, learned MAT allowed the said Original Application and directed present petitioners to issue appointment orders in favour of the present respondents. In the said context, learned A.G.P. for the petitioners herein enlightened us that the petitioners-authorities advertised the posts of Nursery Assistant and invited applications from eligible candidates for the said posts. However, in the said advertisement, petitioners-authorities did not mention the qualification for the said post as per the recruitment rules, i.e. "have successfully completed one year's training course of Mali which is recognized and conducted by the Agriculture Universities in the Maharashtra State.". But, in stead of this qualification prescribed under the rules, the petitioners-authorities wrongly mentioned qualification as "one year's training course of Nursery Assistant, and equivalent to Diploma or Degree, is also essential for the said post." The learned A.G.P. for the petitioners also pointed out that, the learned MAT has wrongly observed that objection by present petitioners to the said selection process is not proper and it is not unreasonable in expecting the candidates to have minimum qualification of 7th standard and further wrongly observed that the same is not objectionable and the candidates better qualified would be given preference and same does not vitiate the advertisement as not observing the Rules. The learned A.G.P., therefore, urged that the learned MAT has not considered this vital aspect in its proper perspective and hence, further urged that the impugned judgment and order dated 8.9.2009 deserves to be quashed and set aside. 8. Original applicants-respondents herein filed affidavit-in-reply, which is sworn in by present respondent 2 Pradeep Vijayrao Kapadane (Original Applicant No.2), and thereby opposed the present petition vehemently and also denied the averments and contentions in the petition, unless admitted specifically. 9. 8. Original applicants-respondents herein filed affidavit-in-reply, which is sworn in by present respondent 2 Pradeep Vijayrao Kapadane (Original Applicant No.2), and thereby opposed the present petition vehemently and also denied the averments and contentions in the petition, unless admitted specifically. 9. Shri V.B.Patil, learned counsel for the respondents canvassed that present petitioner No.5, after obtaining due permission from the competent authority, published the advertisement in local daily newspaper having wide circulation, for filling up the posts of Nursery Assistant. It is also submitted that the said advertisement was approved by the competent authority, and only thereafter, the selection process had been commenced. According to the learned counsel for the respondents, for the post of Nursery Assistant, respondents herein were fully qualified and eligible and, therefore, in view of the said advertisement, they applied therefor, with necessary documents. Accordingly, respondents herein were called for written test and after succeeding in the written test, they were further called for oral interview before the selection committee. It is also canvassed that the present respondents succeeded in the oral interviews also, and thereafter final list of selected candidates was published in the office of petitioner No.5 herein and accordingly, names of the present respondents figured in the said final select list since they had secured higher marks than others, and therefore, they were declared as selected candidates. 10. However, it is submitted by learned counsel for the respondents that although the said select list was published immediately after the oral interviews, the appointment orders were not issued to the respondents-original applicants and, therefore, they made repeated representations to the petitioners herein, therefor. It is submitted that present petitioner No.3, by letter dated 5.5.2008 addressed to present petitioner No.4, without any valid reason, cancelled the selection process, as well as select list of the respondents. Hence, being aggrieved by the said communication, the present respondents approached the learned MAT, by filing Original Application No.383 of 2008 to redress their grievance. Learned counsel for the respondents also submitted that the learned MAT considered all aspects of the matter including the legal position and allowed the said original application, by judgment and order dated 8.9.2009 and there is no perversity in the impugned judgment and, therefore, no interference therein is called for in the present petition. 11. Learned counsel for the respondents also submitted that the learned MAT considered all aspects of the matter including the legal position and allowed the said original application, by judgment and order dated 8.9.2009 and there is no perversity in the impugned judgment and, therefore, no interference therein is called for in the present petition. 11. Learned Counsel Shri V.B.Patil for the respondents-original applicants, also canvassed that in pursuance of the advertisement, about 140 candidates, who possessed qualification of one year's training course of Nursery Assistant as well as the candidates who possessed qualification of diploma / degree of agriculture course of two years, had applied for the said posts of Nursery Assistant. Learned counsel further canvassed that although in the advertisement, qualification was mentioned that the candidate must have successfully completed one year's training course of Mali and equivalent to degree or diploma of the agriculture, but it is important to note that all the candidates possessing qualification, either one year's training course as Mali or who possessed qualification of degree or diploma in agriculture, had applied for the said posts. It is further canvassed that it is not the case that only the candidates who possessed qualification of one year's training course of Mali and also those who possessed degree or diploma in agriculture, had applied and that present petitioner No.5 had accepted applications only of those candidates who possessed both the qualifications. Hence, it is submitted that the petitioners herein had also accepted all the applications of the candidates who possessed one of the requisition qualifications. 12. Accordingly, it is further submitted that after scrutiny of the said applications received by present petitioner No.5, 114 candidates were successful in the written test and out of them, 14 candidates were called for oral interviews. Learned counsel for the Respondents also pointed out that after written examination, for oral interviews, the candidates who possessed qualification of course of on year's training as Mali had also appeared. Thus, it is submitted that it is clear from the select list published by the petitioners that there was total transparency and there was no mistake or error in the selection process. 13. Thus, it is submitted that it is clear from the select list published by the petitioners that there was total transparency and there was no mistake or error in the selection process. 13. Besides that, Shri Patil, learned counsel for the respondents herein also canvassed that the respondents possessed more qualification than required for the aforesaid post and hence, possessing higher qualification does not prohibit them to be appointed for the aforesaid posts of Nursery Assistant. Hence, learned counsel for the respondents urged that the present respondents were rightly selected for the aforesaid posts, but the candidates who did not succeed in the written test and the disgruntled elements had filed the complaints perversely which deserve to be discarded. 14. In substance, the learned counsel for the respondents submitted that the learned MAT has considered each and every aspect of the matter and also perused the record and thereafter passed the reasoned order and allowed the Original Application preferred by the present respondents, rightly and directed the petitioners herein to issue appointment orders in favour of the respondents, which is based on sound footing and, therefore, no interference is called for therein and hence, submitted that the present petition deserves to be dismissed. CONSIDERATION 15. We have perused the contents of the present petition and its annexures, as well as perused the affidavit-in-reply filed on behalf of Respondent Nos. 1 to 4 herein and also perused the impugned judgment and order dated 8.9.2009 rendered by the learned MAT, Mumbai, Bench at Aurangabad, as well as heard the submissions advanced by learned counsel for the parties, anxiously and it appears that the learned MAT has scrutinized the record produced before it and considered the grievances put forth before it by the present respondents-original applicants, as well as by the petitioners herein-original respondents before MAT and dealt with the same in proper perspective and also analytically. 16. 16. As regards the two complaints filed by Sachinkumar Shinde and Santosh Mote, it is observed by the learned MAT that both the said complainants had applied in response to the advertisement and after unsuccessfully competing, made complaints about the Factual Matrix selection process and the select list, after a week since publication of the said select list, and further observed that the said complainants cannot be allowed to plead that entire selection process is vitiated, after they contested the selection process and failed, relying upon the observations of the Hon'ble Supreme Court in the case of K.H. Siraj vs. High Court of Kerala and ors, reported at 2006 AIR SCW 3136, which are as follows: "It has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner." Hence, learned MAT further held that the complaints by the said two complainants suffer from such a weakness and they appear to have taken their chance, by appearing in the examination and thereafter raised an objection to the entire selection process, on the basis of error in the advertisement, about the requisite qualification, which cannot be allowed, and we are of the view that the conclusion drawn by the learned MAT in that respect appears to be based upon sound footing and foundation. 17. As regards the fault found with the advertisement by the Reporting Officer, the learned MAT referred to the Recruitment Rules which state the requisite educational qualification as under: " In the said context, learned MAT observed that the Reporting Officer has recorded the underlined clause to be objectionable, because those words are not in the Rules. However, learned MAT held that the said observation is not sustainable, since there is printing error in that clause, as the word – should be ----- or ----- and further held that it is a common practice that the candidates possessing qualification as required by the Rules or equivalent are allowed to compete. Clause, as printed in the advertisement, reads as if qualification as required as per Rule and also equivalent qualification, is necessary. The word ---/---- means "or, but word '-- means "And". Clause, as printed in the advertisement, reads as if qualification as required as per Rule and also equivalent qualification, is necessary. The word ---/---- means "or, but word '-- means "And". It is further observed by learned MAT that when we read clause 2 as a whole, the error can be identified and no sensible man would read the advertisement, as if requiring both the qualifications i.e. one year training course as Mali and also equivalent Diploma or Degree. In the said context, learned MAT has further observed that, in fact, objection could have been raised regarding requirement of 7th standard or Clause 4 which says that the highest qualified will be given preference, because these clauses are not in the Rules. However, before appearing for the training course of Mali for one year which is conducted by Agriculture Universities in the State of Maharashtra, there must be some minimum qualification and it is not unreasonable in expecting a candidate to be employed with the Government, to have minimum qualification of 7th standard, and ultimately, learned MAT did not find anything objectionable about these additions in the advertisement, further indicating that the candidates better qualified being given preference, does not vitiate the advertisement, as not observing the rules, and we do not find any error in the said observations and conclusions drawn by the learned MAT in respect of the said grievance. 18. Further, as regards another grievance that although the rules require passing of 7th standard and one year training course prescribed for the post of Mali, the advertisement states the requirement of passing of 10th standard and Agriculture Diploma thereafter. In the said context, learned MAT observed that there is nothing wrong in employer electing better qualified person and the qualifications prescribed in the rules are always minimum requirement, and candidates qualified better than the required qualification cannot be denied opportunity to contest, although such contest may cause elimination of candidates qualified to the extent of minimum requirement. A qualification in excess of minimum prescribed, is neither a bar nor disqualification, and we do not find anything unusual in the said observations and findings of the learned MAT while dealing with the said grievance. 19. A qualification in excess of minimum prescribed, is neither a bar nor disqualification, and we do not find anything unusual in the said observations and findings of the learned MAT while dealing with the said grievance. 19. In the circumstances, we are of the considered view that there is no perversity in the impugned judgment and order dated 8.9.2009 passed by the learned MAT, Mumbai, Bench at Aurangabad, in Original Application No.383 of 2008, and this is not a fit case to exercise extra ordinary jurisdiction to interfere in the impugned judgment and order and hence, we are not inclined to accept the submissions advanced by the learned A.G.P. for the petitioners herein and, therefore, present petition, being devoid of any merits, deserves to be dismissed. 20. In the result, present petition being sans merits, stands dismissed. Interim relief stands vacated. In the facts and circumstances, there shall be no order as to costs. Rule stands discharged, accordingly.