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2020 DIGILAW 419 (BOM)

Naresh Dadaji Borkar v. Gram Panchayat, Jankapur

2020-02-24

A.S.CHANDURKAR, VINAY JOSHI

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JUDGMENT : Vinay Joshi, J. In view of the notice issued by this Court on 1072019, the matter is taken up for final disposal at the stage of admission with consent of the learned Counsel appearing for the respective parties. 2. The petitioner, an aspiring candidate has challenged the appointment of respondent No. 3 as a Peon on Gram Panchayat, Jankapur, being arbitrary. The petitioner seeks to quash the appointment of respondent No. 3 and further seeks for direction to the Gram Panchayat to appoint him on the post of Peon. 3. Respondent No. 1 Gram Panchayat has floated a public advertisement dated 15-9-2016, inviting applications for appointment on the post of Peon. The petitioner as well as respondent No. 3, had applied for the said post along with several other candidates. The eligibility criteria for appointment on the post of Peon was that – the candidate shall be local resident; he should have passed H.S.C. examination; his age should not be less than 18 years and not above 28 years; and he should possess requisite knowledge of Marathi language. Besides, that candidate possessing knowledge of computer and electrician, would get preference. 4. It is the case of the petitioner that he was the only candidate possessing requisite qualification along with knowledge of computer and electrician. Since he possess both preferential criteria in terms of the advertisement, he is entitled for selection to the post of Peon. The petitioner submits that respondent No. 3 Shri Gaidhane does not possess preferential criteria of computer knowledge, therefore, his appointment is arbitrary and bad in law. 5. On the basis of said advertisement dated 15-9-2016, initially the Gram Panchayat had selected one Pravin Masram for the post of peon. The said appointment was challenged by this very petitioner in Writ Petition No. 7045/2017. Similar challenge was raised by the petitioner that he is possessing preferential qualification which Shri Masram does not possess. In said Writ Petition, this Court has held that the Gram Panchayat was not entitled to change the Rules after advertisement. Therefore, by setting aside the appointment of Shri Masram respondent No. 3 therein, directed Gram Panchayat to consider the case of petitioner along with other eligible candidates who may be entitled to seek preference on the basis of advertisement. In said Writ Petition, this Court has held that the Gram Panchayat was not entitled to change the Rules after advertisement. Therefore, by setting aside the appointment of Shri Masram respondent No. 3 therein, directed Gram Panchayat to consider the case of petitioner along with other eligible candidates who may be entitled to seek preference on the basis of advertisement. In such a background, the Gram Panchayat has considered the applications afresh, which they have already received and accordingly appointed present respondent No. 3 vide resolution dated 1562018, which is impugned herein. 6. Respondent Gram Panchayat resisted the petition vide reply-affidavit dated 13-2-2020. It is contended that respondent No. 3 has filed provisional certificate of computer knowledge i.e. MSCIT, which he completed in the month of November, 2016. Moreover, a comparative chart of additional and preferential qualification is given to substantiate the stand that respondent No. 3 was found to be a better candidate, hence, came to be selected. 7. We have heard the learned counsel for the parties and considered the issue involved. Undisputedly Gram Panchayat has issued a public advertisement on 15-9-2016 for filling the post of Peon. It is not in dispute that the petitioner as well as respondent No. 3 possess basic qualification and both were considered by Gram Panchayat at the time of selection. It is petitioner’s grievance that, though respondent No. 3 was not qualified as per the advertisement, still he was selected. According to the petitioner, he possesses preferential criteria of having knowledge of computer and electrician, which respondent No. 3 does not possess. The petitioner would contend that he being the only candidate possessing both preferential qualifications, he is entitled for appointment on the post of Peon. 8. Precisely, the petitioner is claiming a right of appointment on the basis of additional qualification to which precedence was to be given in terms of the advertisement. The entire controversy resolved around the eligibility and preferential criteria, as per the advertisement, which is reproduced herein below : Eligibility Criteria. 1. Candidate shall be local resident. 2. Candidate should have passed H.S.C. examination. 3. Candidate shall have completed the age of 18 years and not above 28 years on the cut off date i.e. 23-9-2016. 4. Candidate should possess knowledge of Marathi language. Preference. 1. Computer knowledge. 2. Electrician knowledge. 9. 1. Candidate shall be local resident. 2. Candidate should have passed H.S.C. examination. 3. Candidate shall have completed the age of 18 years and not above 28 years on the cut off date i.e. 23-9-2016. 4. Candidate should possess knowledge of Marathi language. Preference. 1. Computer knowledge. 2. Electrician knowledge. 9. It is the case of the petitioner that besides fulfilling eligibility criteria, he is additionally possessing preferential qualification of computer and electrician knowledge. Whilst, respondent No. 3 is not possessing preferential qualification. So far as the minimum eligibility criteria of petitioner and respondent No. 3 is concerned, the same is not in dispute. The quarrel is on the point of preferential criteria. Respondent No. 1 in reply-affidavit has given a comparative charge about essential and preferential qualification of petitioner and respondent No. 3, which is as under. Sr. No. Certificate Petitioner Respondent No. 3 1. S.S.C. March, 2004 March, 2004. 2. H.S.C. February, 2015 February, 2006. 3. Degree Bachelor of Physical Education, 2010. 4. Computer Course MCIT, Tally, DTP. MSCIT 2016 (Nov). 5. Electrician Course 2 months Electrician Course. 2 years I.T.I. Course, 2014. 10. True, on the date of advertisement, respondent No. 3 had not completed MSCIT Course which he completed in the month of November, 2016 i.e. after the advertisement. The law in this regard is fairly well settled that requisite qualification for eligibility must be on the date of advertisement or on the cut of date if given in the advertisement. For this purpose the petitioner has relied on the reported cases of Ashok Kumar Sharma vs. Chander Shekhar, (1997) 4 SCC 18 and Ms. Abidabanu Najirkhan Mulla vs. Jilla Parishad, Satara and others, = 2019(5) All MR 627. Therefore, a candidate who acquires requisite eligibility criteria after the date of advertisement or cut of date, cannot be considered. Herein the facts are some what different, as the basic eligibility criteria was possessed by both the candidates i.e. petitioner and respondent No. 3 on the date of advertisement. Therefore, the ratio of the above cases would not assist the petitioner to support his contention. 11. The real dispute is about preferential criteria and its importance in selection process. As per advertisement on account of computer knowledge and electrician knowledge, preference was to be given. The petitioner has passed MSCIT, as well as undergone two months electrician course on the date of the advertisement. 11. The real dispute is about preferential criteria and its importance in selection process. As per advertisement on account of computer knowledge and electrician knowledge, preference was to be given. The petitioner has passed MSCIT, as well as undergone two months electrician course on the date of the advertisement. As against this, respondent No. 3 has not passed MSCIT i.e. computer knowledge on the date of advertisement, but, had passed two years ITI course of electrician. This factual aspect has not been denied by the parties. 12. The petitioner would submit that since he possess both additional qualifications and perhaps being the only candidate possessing eligibility and preferential qualifications, he was bound to be selected. In the light of said submission, the real question to be answered is – Whether the preferential criteria can be termed as essential qualification or whether it gives absolute right of selection to the candidate. Respondent Gram Panchayat stated that on evaluation of the qualifications possessed by both the candidates, they found that respondent No. 3 is the better candidate then the petitioner, hence, unanimously they took decision to appoint him. Perhaps, it might have weighed to the Selection Committee that respondent No. 3 has undergone full fledged ITI 2 years course of electrician, as against the two months electrician course undergone by the petitioner. Moreover, respondent No. 3 was possessing a degree of Bachelor in Physical Education, whilst the petitioner was merely a HSC candidate. Though the resolution does not bears specific reason, however, the comparative chart discloses said factual aspect. 13. True, respondent No. 3 was not possessing computer knowledge on the date of advertisement. However, we may note that it was not an essential qualifying criteria for the post. The advertisement itself is crystal clear that preference will be given to candidates having computer and electrician knowledge. Always it is in the realm of discretion of the Selection Committee to weigh the preferential criteria in context with other qualifications and suitability of the candidate. Merely because a candidate possesses the preferential criteria, he does not ipso facto gets right of selection. It is the sole discretion of the Selection Committee, of course to be used in judicious manner. 14. The Court neither sits in appeal, nor in revision on the decision of the selection committee unless it is unconscionable or arbitrary. Merely because a candidate possesses the preferential criteria, he does not ipso facto gets right of selection. It is the sole discretion of the Selection Committee, of course to be used in judicious manner. 14. The Court neither sits in appeal, nor in revision on the decision of the selection committee unless it is unconscionable or arbitrary. Respondent No. 3 was very much possessing basic eligibility criteria as stated above. One of the additional preferential criteria of electrician knowledge was also possessed by respondent No. 3, in better manner then the petitioner. At the cost of repetition we may note that respondent No. 3 has passed two years ITI Course of electrician whilst the petitioner has merely undergone two months electrician course. It means that respondent No. 3 was having much better qualification in electrician course, which is one of the preferential criteria. It is not the case that both preferential criteria must be possessed by the candidate to get precedence. When selection is made on the basis of assessment of merit on basic criteria, preference to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be preferred. It does not mean en block preference irrespective of inter se merit and suitability. The preference criteria cannot work as a reservation or complete precedence on other things. We reiterate that the petitioner has no legal right to claim appointment on the basis of preferential criteria which he possess. We may add, that in pursuance of the directions issued in Writ Petition No. 7043/2017, Gram Panchayat has again considered the candidature of eligible candidates and vide impugned resolution has selected respondent No. 3 on the post of Peon. 15. Reverting to the controversy, respondent No. 3 was admittedly possessing basic eligibility criteria as well as he possess one of the preferential criteria in better way as compared with the petitioner. Therefore, the selection of respondent No. 3 appears to be sound, logical and within four corners of the advertisement. On the basis of preferential criteria, the petitioner would not acquire any right of selection. We do not find any illegality in the appointment of respondent No. 3 on the post of Peon, hence, Writ Petition deserves to be dismissed and we do so accordingly. In the circumstances, no order as to costs. Petition dismissed.