WP 7189/14 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 7189/2014
Tushar s/o Sharangdhar Kawale,
Aged about 42 years, Occ.: Accountant,
R/o. 290, Near Ram Mandir,
Chandan Nagar, Nagpur. PETITIONER
.....VERSUS.....
1. Union of India,
Through its Secretary,
Ministry of Health and Family Welfare,
New Delhi.
2. The Directorate General of Health Services,
Through its Director,
Nirman Bhawan, New Delhi - 110 011.
3. The Joint Director of Health Services
(Leprosy and Tuberculosis),
Aarogya Bhawan, Infront of
Vishrantwadi Police Station,
Alandi Road, Vishrantwadi,
Yerwada, Pune.
4. Additiona Commissioner-cum-
President of City Tuberculosis
Control Society,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
5. City Tuberculosis Officer-cum-
Member Secretary of City
Tuberculosis Control Society,
Sadar Diagnostic Centre,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
6. Shri Pravin Wanjari,
Resident of Plot No.124-A,
Trust Layout, Pandhrabodi, Nagpur. RESPONDENTS
Shri A.S. Dhore, counsel for the petitioner.
Mrs. M.R. Chandurkar, counsel for the respondent no.1.
Shri S.M. Ukey, Additional Government Pleader for the respondent nos.2 and 3.
Mrs. S.S. Jachak, counsel for the respondent nos.4 and 5.
CORAM :SMT.VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATE : 27 TH APRIL, 2017.
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WP 7189/14 2 Judgment
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
By this writ petition, the petitioner seeks a direction against the respondent to absorb the petitioner on the post of full time accountant in the City Tuberculosis Control Society, Nagpur of the Municipal Corporation, Nagpur. The petitioner challenges the select list prepared by the Corporation on 11.12.2014 for appointment on the post of full time accountant on contract basis.
2. The respondent no.1-Union of India had sponsored a scheme for Tuberculosis control and the scheme is implemented through the Nagpur Municipal Corporation. As per the said scheme, certain posts were created for implementing the programme and one such post was the post of part time accountant on contract basis. The respondent no.1 decided to appoint a full time accountant on contract basis either by absorbing the accountant who is working on part time basis or by inviting applications from the candidates desirous for securing appointment on the said post. After securing the requisite permission, the Corporation issued an advertisement inviting the candidates for a Walk-In interview. The petitioner as well as several other candidates including the respondent no.6 applied for the said post. The petitioner was not selected and the Corporation selected the respondent no.6 by granting higher marks to the respondent no.6 on the basis of the marks secured by the respondent no.6 at the degree level, i.e. at the B.Com. examination. ::: Uploaded on - 03/05/2017 ::: Downloaded on - 03/05/2017 23:52:19 :::
WP 7189/14 3 Judgment According to the petitioner, the allotment of higher marks to the respondent no.6 on the basis of the marks secured by him at the degree examination is bad in law as the advertisement does not provide for any such weightage.
3. Shri Dhore, the learned counsel for the petitioner, submitted that it was necessary for the respondent-Corporation to have selected the petitioner on the post of full time accountant on contract basis. It is submitted that in pursuance of the direction of the Joint Director of Health Services, dated 06.03.2014, the petitioner was entitled to be absorbed. It is stated that the respondents, however, wrongfully issued an advertisement on 04.11.2014 inviting the applications from the persons desirous of seeking appointment on the post of full time accountant on contract basis and called them for Walk-In interview. It is submitted that the action on the part of the respondent of advertising the post is bad in law as the petitioner was entitled to be absorbed in the said post. It is further stated that the respondent-Corporation was not justified in selecting the respondent no.6 for the post of accountant only because the respondent no.6 had secured higher marks than the petitioner in the B.Com. examination. It is stated by referring to the advertisement that a candidate desirous of seeking appointment as full time accountant on contract basis was required to possess B.Com. degree, the requisite experience and the candidates with M.B.A. and P.G. Diploma qualification ::: Uploaded on - 03/05/2017 ::: Downloaded on - 03/05/2017 23:52:19 ::: WP 7189/14 4 Judgment were entitled to preference. It is submitted that the advertisement does not prescribe that the marks secured by the candidate at the degree level would be considered and weightage would be given to the candidates who had secured higher marks. It is submitted that the respondents have wrongfully earmarked 80% of the marks for the marks secured at the degree level, 10% marks for higher qualification, 5% marks for preferential qualification and the remaining 5% marks for the interview. The learned counsel states that since the petitioner had secured more marks than the respondent no.6 at the interview, the petitioner was entitled to be selected.
4. Mrs.Jachak, the learned counsel for the Corporation, has supported the action of the Corporation. It is submitted that as per the Central Tuberculosis Division Guidelines, the essential qualifications were mentioned in the advertisement. It is submitted that preference was required to be granted to the candidates who have familiarity with audit in a recognized society or institution or possessed M.B.A. or P.G. Diploma in financial management. It is admitted that 80% of the marks were allotted for the marks secured at the degree level, 10% marks for higher qualification, 5% marks for preferential qualification and the remaining 5% marks for the interview. It is stated that since the respondent no.6 secured more marks at the degree level, the respondent no.6 was selected.
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WP 7189/14 5 Judgment
5. We are not inclined to accept the submission made on behalf of the respondent-Corporation that the respondent no.6 was entitled to be selected as he secured more marks than the petitioner at the degree level. The advertisement stipulates that a candidate should possess a B.Com. degree. It is not stated in the advertisement that weightage as high as 80% would be given to the marks secured in the B.Com. examination. The advertisement provides that preference would be given only to such candidates who have familiarity with audit in a recognized society or institution or the candidates who possess M.B.A. or P.G. diploma in financial management. It was necessary for the respondent-Corporation to have considered whether each of the eligible candidate possessed a B.Com. degree and then after considering the experience of the candidates in accounting, preference could have been given by the Corporation to the candidates who had completed audit in recognized societies or institutions and/or the candidates that possessed M.B.A. or P.G. Diploma in financial management. All these aspects ought to have been considered by the respondent-Corporation while considering the merit of the candidate. There is nothing in the advertisement or in any policy of the respondent-Corporation or the policy of the Central Government, at least no such policy is pointed out to the Court, that provides that 80% of the marks could be allotted to the candidates on the basis of the marks secured by them at the degree level, i.e. in the ::: Uploaded on - 03/05/2017 ::: Downloaded on - 03/05/2017 23:52:19 ::: WP 7189/14 6 Judgment B.Com. examination. The petitioner has admittedly secured four marks in the interview as against two and three marks secured by the other candidates. It was necessary for the respondent-Corporation to have considered whether any of the candidates had completed the audit in a recognized society or institution or the candidates possessed M.B.A. or P.G. diploma in financial management. There is no basis for applying the aforesaid criteria of awarding 80% marks for the marks secured at the degree level. In the absence of any basis for awarding marks in the aforesaid fashion, we find that awarding marks to the candidates by granting weightage of 80% for the marks secured at the degree level appears to be extremely arbitrary and unreasonable. Also, the said criteria is also not mentioned in the advertisement or in any policy of the respondents.
6. Though we hold that the respondent-Corporation was not justified in selecting the respondent no.6 for appointment on the post of full time accountant on contract basis, we are not inclined to consider the submission made on behalf of the petitioner that the respondent-Corporation could not have issued an advertisement when the Joint Director of Health Services had asked the Corporation to absorb the part time accountant working in the Corporation on contract basis as a full time accountant on contract basis. It is well settled that it would be necessary for a party to challenge the advertisement ::: Uploaded on - 03/05/2017 ::: Downloaded on - 03/05/2017 23:52:19 ::: WP 7189/14 7 Judgment before participating in the selection process. Once the candidate participates in the selection process, he/she cannot be permitted to turn around and challenge the process at a subsequent stage when he or she is not selected or absorbed. The petitioner did not question the advertisement issued on 04.11.2014 and participated in the process by attending the Walk-In interview. The petitioner, therefore, cannot effectively challenge the advertisement issued by the respondent- Corporation and seek his absorption on the post of full time accountant on contract basis. It would be worthwhile to refer to the judgment of the Hon'ble Supreme Court, reported in (2009) 3 SCC 227 (Amlan Jyoti Borooah Versus State of Assam & Others), (1997) 4 SCC 426 (University of Cochin Versus N.S. Kanjoonjamma & Others) and (2010) 12 SCC 576 (Manish Kumar Shahi Versus State of Bihar & Others), in this regard.
7. Hence, for the reasons aforesaid, the writ petition is partly allowed. The select list prepared by the respondent-Corporation is hereby set aside. The respondent-Corporation is free to either reconsider the candidature of the four candidates that had participated in the selection process and whose names are included in the select list and/or issue a fresh advertisement for appointment on the post of full time accountant on contract basis.
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WP 7189/14 8 Judgment Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
APTE
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