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2024 DIGILAW 433 (MP)

RISHI PATHAK v. NILESH LOKHANDE

2024-05-20

RAJENDRA KUMAR VANI, VIVEK RUSIA

body2024
ORDER : (Vivek Rusia, J.) : These two appeals are filed challenging the order dated 26-9-2022 passed by the writ Court in W. P. No. 9782/2018, whereby the appointment of appellant Rishi Pathak to the post of Scientific Officer has been set aside and a cost of Rs. 50,000/- has been imposed upon the MPPSC. 2. Facts of the case in short are as under :— (i) MPPSC issued an advertisement for appointment to the post of Scientific Officer, Archaelolgist and Curator in the Ministry of Culture, Bhopal. The controversy in this case is related to the appointment of Scientific Officer for which under the recruitment Rules, as well as, in advertisement two sets of qualifications are prescribed namely (i) Essential Qualification and (ii) Desired Qualification. Both are reproduced below :— 2- oSKkfud vf/kdkjh gsrq vfuok;Z vgrkZ 'kS{kf.kd ¼d½ jlk;u 'kkLrz esa n~forh; Js.kh esa LukrdksRrj mikf/k ;k mlds lerqY; dksbZ vU; mikf/k ¼[k½ jk"Vªh; vfHkys[kkxkj ;k ljdkj ls ekU;rk izkIr laLFkk esa ls iqjkys[k laj{k.k esa izf'kf{kr okaNuh; vgrkZ vfHkys[kkxkj foHkkx esa vfHkys[kksa ds oSKkfud laj{k.k esa 5 o"kZ dk vuqHko okaNuh; vgrkZ ls rkRi;Z % izFker% okaNuh; vgZrk j[kus okys vH;fFkZ;ksa dk p;u fd;k tk,xk A okaNuh; vgZrk j[kus okys vH;fFkZ;ksa dh vuqiyC/krk gksus ij gh okaNuh; vgrkZ u j[kus okys vH;fFkZ;ksa ds p;u ij fopkj fd;k tk,xk A (ii) In Clause 9 of the advertisement, it is specifically provided that for one post of Scientific Officer, ten candidates are to be invited for an interview, the list of which shall be prepared on the basis of marks scored by the candidate in the Post Graduate degree which is essential qualifications. It is also provided that firstly the candidate with essential qualifications and desirable qualifications will be included and in the absence of those candidates, the candidate with essential qualifications will be called for interview. The final selection list will be prepared on the basis of marks scored by all the candidates in the interview. Rishi Pathak and Nilesh Lokhande both applied for the post of Scientific Officer on the basis of their qualifications. Nilesh Lokhande has both essential as well as desired qualifications and the experience certificate dated 4-9-2017. He was already working as a chemist in the office of Dy. Director, Archaeology, Regional Office, Gwalior. Admittedly, Rishi Pathak has only essential qualifications. However, both were called for the interview scheduled on 20-3-2018. Nilesh Lokhande has both essential as well as desired qualifications and the experience certificate dated 4-9-2017. He was already working as a chemist in the office of Dy. Director, Archaeology, Regional Office, Gwalior. Admittedly, Rishi Pathak has only essential qualifications. However, both were called for the interview scheduled on 20-3-2018. The MPPSC declared the result in which Nilesh Lokhande secured 59 marks and Rishi Pathak scored 80 marks. The final merit list was published in which the name of Rishi Pathak was placed at S. No. 1 and the name of Nilesh Pathak was placed at S. No. 1 of the waiting list. The final result was communicated to the State Government vide correspondence dated 24-3-2018. (iii) Nilesh Lokhande filed a writ petition (W. P. No. 9782/2018) challenging his non-selection on the sole ground that Rishi Pathak could not have been called for an interview as he does not possess desirable qualifications. (v) During the pendency of the petition, after due character verification, physical fitness, and document verification, an appointment letter dated 12-7-2018 was issued in the name of Rishi Pathak. Notices were issued in the writ petition. Reply, rejoinder, and additional returns were filed by the parties. After hearing the parties, the learned Judge passed the impugned order holding the appointment of Rishi Pathak to be illegal and directed respondents to consider the case of Nilesh Lokhande for appointment on the post of Scientific Officer. The MPPSC has been saddled with the cost of Rs. 50,000/- on account of calling Rishi Pathak for an interview despite he was not possessing the desirable qualifications. 3. Now, these two writ appeals are filed – one by Rishi Pathak and another by MPPSC only challenging the cost part of the order. 4. We have heard learned counsel for the parties. 5. Shri Sharma, learned counsel appearing for the appellant submits that Rishi Pathak was possessing the essential qualification and scored 80 marks; much higher than Nilesh Lokhande. The MPPSC is a competent authority with experts to consider the inter se merit to select a person having essential qualifications. For the post in question, the essential qualification ought to have been given weightage over and above the desirable qualifications. It is further submitted by the learned counsel that Nilesh Lokhande wrongly challenged the selection of Rishi Pathak as he himself does not possess experience for the post in question. For the post in question, the essential qualification ought to have been given weightage over and above the desirable qualifications. It is further submitted by the learned counsel that Nilesh Lokhande wrongly challenged the selection of Rishi Pathak as he himself does not possess experience for the post in question. He has been working on the post of chemist and does not have 5 years of experience in the scientific preservation of archives in the archives section. Therefore, both the candidates were called on the basis of essential qualifications not on the basis of desired qualifications and since appellant Rishi Pathak secured much higher marks than Nolesh Lokhande, therefore, his name was rightly recommended for appointment and in fact appointed on the post of Scientific Officer. 6. Learned counsel appearing for the MPPSC submits that at the relevant point of time, as per the conditions of the advertisement, as well as, recruitment rules, both the candidates possessing essential qualifications, were called but the selection was between only Rishi Pathak and Nilesh Lokhande hence both were called for interview to assess the inter se merit. However, later on the opinion of the Commissioner from the Archaeological Department dated 1-10-2018 was sought clarifying that Rishi Pathak did not even possess the essential qualification. His Masters Degree in Engineering Materials cannot be treated as equivalent to the Master’s Degree in Chemistry. Even the writ Court has not held that Nilesh Lokhande is liable to be appointed but rather directed the Government to consider his qualifications before appointing him. Therefore, the cost of Rs. 50,000/- has wrongly been imposed and the same may kindly be waived by allowing W. A. No. 1425/2022. 7. Shri K. N. Gupta, learned Senior Counsel appearing for Nilesh Lokhande/writ petitioner urges that the language of the advertisement is very clear and aligns with the recruitment rules that candidates having essential as well as desirable qualifications are liable to be appointed to the post of Scientific Officer. Admittedly Rishi Pathak does not have the desired qualifications, therefore, he ought not to have been called for even interview for the post in question. Learned senior counsel further submits that Rishi Pathak does not possess the essential qualification which is Post Graduate in Chemistry with minimum second division. Admittedly Rishi Pathak does not have the desired qualifications, therefore, he ought not to have been called for even interview for the post in question. Learned senior counsel further submits that Rishi Pathak does not possess the essential qualification which is Post Graduate in Chemistry with minimum second division. He has a Bachelor in Engineering (BE) and a Master in Technology (Mtech) in Material and Chemical Science which cannot be equated with a Post Graduate in Chemistry with a minimum second division. He also does not have training certificate in chemical conservation of ancient antiquities from Government recognized Institution. Therefore, not only the desired qualification but Pathak lacks essential qualifications also. Therefore, his appointment has rightly been annulled by the writ Court with a cost of Rs. 50,000/- on the MPPSC, hence the impugned order is not liable to be interfered with and both writ appeals be dismissed. Shri Gupta learned senior counsel in support of his submissions relied on the judgment passed by Apex Court in the case of Mohd. Sohrab Khan vs. Aligarh Muslim University, reported in (2009) 4 SCC 555 in which the Apex Court has held that the post of Lecturer in Chemistry could not have been filled by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that the master degree holder in the said subject would be also suitable for being considered. Question of equivalency of qualifications for the post in question is liable to be examined by the selection agency or the employer. Shri Gupta has also placed reliance on a judgment passed in case of Maharashtra Public Service Commission vs. Sandeep Shriram Warade, reported in (2019) 6 SCC 362 in which the Apex has held that essential qualification for appointment to a post are for the employer to decide. The Court cannot lay down the conditions of eligibility much less can it delve into the issue with regard to desirable qualification being at par with the essential qualification by an interpretive re-writing of the advertisement. The Court cannot lay down the conditions of eligibility much less can it delve into the issue with regard to desirable qualification being at par with the essential qualification by an interpretive re-writing of the advertisement. In case of Zonal Manager, Bank of India, Zonal Office, Kochi and others vs. Aarya K. Babu and another, (2019) 8 SCC 587 , the Apex Court has held that it is not for the Court to read into or assume and thereby include certain qualifications which have not been included in the notification by the employer. In case of Indresh Kumar Mishra and others vs. State of Jharkhand and others, (2022) 12 SCC 42 , the Apex Court has the held that the Court of law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the same. 8. We have heard the learned counsel for the parties and perused the record, as well as, the judgments cited by the learned counsel for the parties. The qualifications prescribed in the recruitment rules namely The Madhya Pradesh Archaeology, Archives and Museums (Gazetted) Service Recruitment Rules, 1998 and prescribed in the advertisement for the post in question i.e. Scientific Officer are reproduced below : “Archives Section : (2) Scientific Officer Minimum age limit – 25 years, Maximum age limit – 30 years Compulsory : (A) Master degree in second division in Chemistry or its equivalent degree. (B) Trained in archives conservation and from any institution recognized by National Archives of India or the Government Desirable : Five years experience of scientific conservation of records in Archives Department” As per the advertisement, the candidates should be called first who have essential as well as desirable qualifications. In the absence of any candidate possessing desirable qualifications, the candidates having essential qualifications are liable to be called for the interview. At the time of submission of his form admittedly Rishi Pathak declared his essential qualification only and Nilesh Lokhande applied with both essential as well as desirable qualification. However, the MPPSC thought it proper to call both of them for an interview because sometimes the candidature is liable to be cancelled at the time of verification of documents. At the time of submission of his form admittedly Rishi Pathak declared his essential qualification only and Nilesh Lokhande applied with both essential as well as desirable qualification. However, the MPPSC thought it proper to call both of them for an interview because sometimes the candidature is liable to be cancelled at the time of verification of documents. Therefore, nothing wrong has been done by calling both candidates instead of selecting a sole candidate on the basis of documents furnished along with the application form. 9. According to appellant Rishi Pathak, Nilesh Lokhande does not have the desired qualification i.e. Five years experience in scientific conservation of records in the Archives Department. The writ petitioner Nilesh Lokhande an existing employee of the Department of Archaeology, submitted an experience certificate, therefore, his experience certificate was also questionable as he was working as a Chemist in the department. Therefore, the MPPSC rightly called both Pathak and Lokhande for an interview, the cost has wrongly been imposed by the writ Court. 10. It is correct that both the candidates Rishi Pathak and Nilesh Lokhande applied for the post of Scientific Officer. Admittedly appellant Rishi Pathak possesses essential qualifications only and Nilesh Lokhande submitted an application form on the basis of essential qualifications and desired qualifications. The writ Court has not held that Nilesh Lokhande possesses both the qualifications and left it open to the MPPSC or the State Government to examine his qualifications and thereafter consider for appointment to the post of Scientific Officer. Therefore, it is up to the respondents to examine the possession of desired qualification i.e. 5 years experience in Scientific Preservation before issuing an appointment order. The MPPSC was not at fault for calling both the candidates for interview. 11. Now, the second question is whether the appellant Rishi Pathak was rightly appointed on the post of Scientific Officer on the basis of marks obtained in the interview. For the post in question, the essential qualification is Post Graduate in Chemistry with a minimum second division. Admittedly, the appellant is having a degree of Bachelor in Engineering (BE) in Mechanical subject. Thereafter, he obtained Masters of Technology (M.Tech.) in Engineering Materials and Chemical Science from MANIT, Bhopal and was appointed as Assistant Professor in RGPV, Bhopal. However, the other equivalent postgraduate degrees are also acceptable as an essential qualification to the post in question but the degree of M.Tech. Thereafter, he obtained Masters of Technology (M.Tech.) in Engineering Materials and Chemical Science from MANIT, Bhopal and was appointed as Assistant Professor in RGPV, Bhopal. However, the other equivalent postgraduate degrees are also acceptable as an essential qualification to the post in question but the degree of M.Tech. in which chemistry is only one subject cannot be equated with Post Graduate in chemistry. There is no such certificate issued by any competent Authority or body to treat M.Tech. in Engineering Material and Chemical Science as equivalent to the Post Graduate (M.Sc.) in Chemistry. 12. Apart from that Rishi Pathak does not possess a training certificate in Chemical Conservation of Ancient Antiquities from Government recognized Institution as well. The certificate which was produced by Rishi Pathak is issued by AISECT University and cannot be treated as Government recognized Institution. This certificate nowhere certifies that Pathak got training in the chemical conservation of ancient antiquities. Therefore, he does not possess even the essential qualifications. Writ Court has not committed any error in setting aside his appointment to the post of Scientific Officer. 13. So far the respondent Nilesh Lokhande is concerned, he was already working in the Directorate of Archaeology, Archive and Museum, MP Government, Bhopal on the post of Chemist. However, the writ Court has left it open to the MPPSC and the State Government to consider his qualifications and appoint him to the post of Scientific Officer thereafter. However, it has been told that the appointment order has been issued and he has been appointed to the post of Scientific Officer, which has not been challenged by Rishi Pathak, therefore, no interference is called for. Writ appeal No. 1685/2022 is, accordingly, dismissed. W. A. No. 1425/2022 is allowed. The cost of Rs. 50,000/- is hereby waived. If the MPPSC has deposited Rs. 50,000/- with the Registry, the same be returned.