Judgment :- Sunil P. Deshmukh, J. 1. Rule. Rule made returnable forthwith. By consent heard finally. 2. The petitioner, was a candidate for driver's post and had participated in the selection process pursuant to the advertisement dated 01.10.2011 issued by respondent No. 2 for recruitment, to various posts, inter alia, from reserved category of scheduled caste. 3. The advertisement dated 1.10.2011 stipulated various conditions. The conditions crucial and relevant to the challenge are:- (a) Eligibility criteria referred to for the post of driver is SSC pass and driving licence of heavy motor vehicles. (b) The candidate should apply on or before 15.10.2011 along with all necessary documents. (c) The applications not conforming to the requirements were liable to be rejected by the Municipal Corporation under their authority. (d) Subsequently, corrigendum dated 04.10.2011 has been issued amending minimum educational qualification to passing of 7th standard, apart from having heavy motor vehicles driving licence. 4. In response to the application of petitioner, respondent no. 2 in January, 2012 asked him to appear at written test. After getting success in the written test, petitioner was interviewed in February, 2012. 5. The petitioner states a remour spread that Municipal Commissioner wanted to select the candidates of his choice from his district. With a view to verify the position, the petitioner sought information through an application, under Right to Information Act. Information, however, was declined on the ground that selection process was in progress, assuring that the same would be supplied after process is over. 6. Respondent no. 2 published select as well as waiting lists on 22.02.2012 showing respondent no. 3, namely, Ganesh S/o Shrirang Dalvi, in the select list whereas the petitioner was placed at serial no. 1 in the waiting list from scheduled caste category. Life of waiting list, according to petitioner, was for a period of 12 months. 7. The petitioner contends that the selection of respondent no. 3 is illegal, malafide and there is malice in law acting against the petitioner. Respondent no. 3 has been unduly favoured by the Municipal Commissioner. He alleges that on one hand he was not provided information sought by him under Right to Information Act, and on the other, respondent no. 2 favoured Respondent No. 3 by selecting him who is candidate of his choice from his district. 8. Respondent no. 3 has been unduly favoured by the Municipal Commissioner. He alleges that on one hand he was not provided information sought by him under Right to Information Act, and on the other, respondent no. 2 favoured Respondent No. 3 by selecting him who is candidate of his choice from his district. 8. The petitioner, thereafter, filed an appeal under Right to Information Act and pursuant to the same, particulars of selection process were provided to him. From the information and documents supplied to the petitioner it became evident that manipulation and illegality in respect of selection process had occurred. 9. It was discovered that the application of respondent no. 3 clearly reveals that he possessed only "light motor vehicles driving licence", on the date when respondent no. 3 had submitted the application in response to advertisement. 10. Petitioner averred that on the date of submission of application i.e on 05.10.2010, respondent no. 3 did not possess heavy motor vehicle driving licence, which he has received only subsequently i.e. on 14.11.2011. The petitioner, as such, contends that respondent no. 3 was not eligible and qualified even to apply on the date of his application, and he was much less, eligible for appointment. 11. It is also seen that initially the qualification, pursuant to the advertisement, for the post of driver, was 'SSC pass' with heavy motor vehicle driving licence, however, by corrigendum referred to hereinabove, qualification was brought down to 7th Standard. 12. It is evident that corrigendum relaxing educational qualification was engineered in order to relax the eligibility criteria sheerly to ensure that respondent no. 3, who does not hold the qualification of passing SSC is brought within the eligibility clause. 13. Petition has been fervently opposed by respondent no. 3, contending that:- (a) The petition suffers laches, respondent no. 3 was appointed in March 2012, whereas petition has been filed in November, 2012. (b) Petitioner is estopped from challenging the selection process as he participated in the same. (c) The petition raises disputed questions of fact. (d) It was not necessary to submit the documents required, namely, School Leaving Certificate, Certificates of Educational Qualification, Caste Certificate, Experience Certificate along with the application. (e) Though qualification referred to under advertisement was SSC pass, subsequently corrigendum was issued by the Corporation relaxing the qualification for the post of driver, to 7th Standard pass while other conditions had remained unchanged. (e) Though qualification referred to under advertisement was SSC pass, subsequently corrigendum was issued by the Corporation relaxing the qualification for the post of driver, to 7th Standard pass while other conditions had remained unchanged. (f) Respondent no. 3 had applied pursuant to the advertisement for appointment to the post of driver as Scheduled Caste candidate, since he possessed necessary qualifications. (g) Along with application, respondent no. 3 had submitted School Leaving Certificate indicating his failure in 10th standard, Caste Certificate and Residence Certificate, and driving licence of Light Motor Vehicles, Experience Certificate issued by the Chief Officer Municipal Council, Shrirampur where he had served for about four years as Driver and Assistant Fireman. He, thus, claims that he had adequate experience as Driver and Assistant Fireman. (h) The Regional Transport Authority, Shrirampur issued in favour of respondent no. 3 the learner's Heavy Motor Vehicles Driving Licence and the copy of the same was submitted to the Corporation, on a day prior to the last date of making application pursuant to the advertisement. Concerned Authority had issued permanent Heavy Motor Vehicles Driving Licence to respondent no. 3 on 14.11.2011 and the same was submitted to respondent Municipal Corporation on 15.11.2011 and submission was duly accepted by the Corporation. (i) The Municipal Corporation did not find fault with application of the respondent no. 3 on its scrutiny, and as such issued communication in January 2012, to remain present for written test on 28.01.2012. (j) Respondent no. 3 appeared at the examination. He was successful in the same. Thereafter, practical examination and interview were conducted by the duly constituted Committee. (k) It was only upon satisfaction by the duly constituted Selection Committee, his character verification had taken place and consequently order dated 14.03.2012 was issued appointing him as driver. (l) Respondent no. 3 had joined service on 19.03.2012 and since then he is discharging said duty, and he is rendering the service in firefighting department. (m) Petition is filed with oblique and ulterior motive coupled with petitioner being politically influential person, having assistance of some Corporators, and that the petitioner has no vested right in appointment. The petitioner was set up by some of the local Corporators and the petitioner is not eligible. (m) Petition is filed with oblique and ulterior motive coupled with petitioner being politically influential person, having assistance of some Corporators, and that the petitioner has no vested right in appointment. The petitioner was set up by some of the local Corporators and the petitioner is not eligible. (n) The allegation that, the Commissioner wanted to appoint the persons from his district and found favour with them and claim that subsequent communication about his qualification, was rectified is false. (o) No foul play can be attributed to him and allegations are baseless. 14. Respondent No. 2 Municipal Corporation has not submitted affidavit-in-reply, however, purported to rely on communication dated 16.08.2012 under outward no. 530 made to the Additional Secretary, Urban Development Department, Mumbai, referring to that respondent no. 3 had not submitted driving licence of Heavy Motor Vehicles at the time of making application. It is further submitted that it appears, he had subsequently submitted the same with Commissioner, as such, he was selected. 15. Learned Advocate for petitioner submits that, according to legal position, suitability and eligibility of the candidate has to be considered with reference to the last date for receiving applications unless the date is otherwise prescribed in the notification. He put forth the said proposition, relying on the decision rendered by the three Judges' Bench of the Hon'ble Apex Court in the case of M.V. Nair Vs. Union of India, reported in 1993 (2) SCC 429 (1993 DGLS(Soft)68). He submits that factual position in the present case is unassailable and it is clear that respondent no. 3 did not possess permanent Heavy Motor Vehicles Driving Licence on the last date of making application as the same was admittedly subsequently issued to him. He, therefore, submits that on the last date of submission of application, since no other date was prescribed, respondent no. 3 did not qualify the suitability and eligibility requirements and as such was ineligible even to apply, much less to be considered, for post of driver pursuant to advertisement. 16. Learned Advocate for petitioner also relied on the decision rendered by the Division Bench of the Apex Court in the case of Secretary A.P.Public commission Vs. 3 did not qualify the suitability and eligibility requirements and as such was ineligible even to apply, much less to be considered, for post of driver pursuant to advertisement. 16. Learned Advocate for petitioner also relied on the decision rendered by the Division Bench of the Apex Court in the case of Secretary A.P.Public commission Vs. B. Swapna, reported in 2005(4)SCC 154 (2005 DGLS(Soft)765), and submitted that, norms of selection cannot be altered after selection process is started and the Court cannot abdicate its function of ushering in a society based on rule of law. 17. According to the petitioner, the educational qualification originally referred to in advertisement was deliberately relaxed with a view to accommodate the candidate like respondent no. 3, who has been unduly favoured. There were sufficient number of candidates available having educational qualification SSC pass. There was no reason to bring down or relax the qualification for the post of driver. 18. It is submitted that the application by respondent no. 3 was liable to be rejected at the threshold as it was not accompanied by certificate of required qualification of possessing permanent driving licence of HMV. Alteration subsequent to advertisement in educational qualification and acceptance of the driving licence of respondent no. 3 by respondent no. 2, after the last date of submission of the application given under advertisement was deliberately done, and as such selection of the respondent no. 3 is manipulated. 19. Petitioner submitted representations to respondent no.2 pointing out irregularity and illegalities in the selection and appointment of respondent no. 3. Petitioner had also further filed application to respondent no. 2. He also enquired what should be procedure adopted for cancellation of selection of respondent no. 3. 20. It is only in August 2008, the Deputy Commissioner, Municipal Corporation had intimated the petitioner that the Municipal Corporation has sought guidance from the Government in respect of respondent no. 3. A copy of communication/letter dated 16.08.2012 referred to hereinabove was supplied subsequently to petitioner. The petitioner has approached this Court soon thereafter, as expeditiously as possible, after waiting for an action against selection and appointment of respondent no. 3, looking at that, validity of waiting list is nearing its last date. 21. Position indisputably emerges that, up to last date of making application for post of driver on 15.10.2011, respondent no. The petitioner has approached this Court soon thereafter, as expeditiously as possible, after waiting for an action against selection and appointment of respondent no. 3, looking at that, validity of waiting list is nearing its last date. 21. Position indisputably emerges that, up to last date of making application for post of driver on 15.10.2011, respondent no. 3 did not possess heavy motor vehicles driving licence as is required under the conditions of the advertisement. 22. There is no substance in the contention of respondent no. 3 that only documents which were required to be filed along with application were educational qualification, school leaving certificate, caste certificate, experience certificate for accompaniment of driving licence along with application for selection to the post of driver would be a necessary requirement which forms basic suitability and eligibility to the post applied for. 23. The contention of respondent no. 3 that no other document was required to be filed along with application, is devoid of any substance and rationale. As a matter of fact, the documents referred are only illustrative, suffixed by term 'etc.' taking within its fold documents of basic eligibility which is a sine-qua-non for the post applied for. 24. In the present case, it is duly proved being admitted fact that respondent no. 3 in his application had initially written SSC pass, subsequently, that came to be corrected as SSC only. It further appears that while there were number of candidates for the concerned post having required educational qualification SSC, yet qualification had been brought down to 7th Standard. It is also evident that driving licence of HMV was subsequently obtained by respondent no.3 and he was allowed to furnish it much after submission of application. 25. The selection process for recruitment of respondent no. 3, indulged in by respondent no. 2 has seriously prejudicially affected the petitioner who otherwise in normal course would have been appointed to the post of driver. Whole selection process thus gets vitiated for letting Respondent No. 3 remove deficiencies in incompetent claim on relevant last date pursuant to the advertisement. 26. The action of appointing respondent no. 3 being not proper and violates the prevailing legal position. In the facts as are appearing, the appointment made by such process cannot be sustained and deserves to be set aside. 27. 26. The action of appointing respondent no. 3 being not proper and violates the prevailing legal position. In the facts as are appearing, the appointment made by such process cannot be sustained and deserves to be set aside. 27. Had selection process been conducted pursuant to the terms and conditions under advertisement and even after corrigendum, it was petitioner, who would have been legitimately selected but instead appeared at serial no. 1 in the waiting list which consequently detained his appointment. 28. We, therefore, quash and set aside appointment order issued by respondent no. 2 in favour of respondent no. 3 (Annexue J) to the writ petition and direct respondent– Municipal Corporation to appoint present petitioner on the post of driver pursuant to the advertisement dated 01.10.2011, him being eligible and appears at serial No. 1 of waiting list, untrammelled by fact that validity period of waiting list has expired, for the same all along was subject to decision in the present writ petition, Rule is made absolute in terms of prayer clauses (A) and (B). 29. At this stage, respondents make request to defer operation of this order for a period of three weeks. However, looking at the background, we do not deem it appropriate to give any further indulgence. As such, we do not accede to the request of the respondents.