Bombay High Court
The State Of Maharashtra vs Ajay Bhimrao Pawar on 12 October, 2010
Bench: S.B. Deshmukh, Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 7767 OF 2009
01. The State of Maharashtra, through
its Dy. Secretary, Department of
Agriculture, Horticulture, Animal
Husbandry, Milk and Fishery,
Mantralaya, Mumbai.
02. The Agriculture Joint Director (Est).
Commissioner Office of Agriculture,
Shivaji Nagar, M.S. Pune.
03. The Asstt. Administrative Officer,
Commissioner Office of Agriculture,
Shivaji Nagar, M.S., Pune.
04. The Div. Jt.Director of Agriculture,
Nasik Road, Nasik.
05. The District Superintendent of
Agriculture Officer/President of
Selection Committee, Old Collector Petitioners/
Office Compound, Dhle. Original
Respondents
versus
01. Ajay Bhimrao Pawar,
age 32 years, occupation Nil.
r/of Krushi Nagar, Plot No.37,
Amalner, District Jalgaon.
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02. Pradeep Vijayrao Kapadne,
age 28 years, occupation Nil,
r/of Zende Nagar, Plot No.33,
Dhule.
03. Manoj Oman Kokani,
age 22 years, occupation Nil,
r/of 45/A, Navjeen Adivasi
Housing Society, Nakane Road,
Deopur, Dhule, District Dhule.
04.
Pankaj Ramesh nagare,
age 27 years, occupation Nil, Respondents/
r/of Nagre Nagar, Sakri, Plot Original
No.17, Tq. Sakri, Dist. Dhule. applicants.
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Shri R.P. Phatke, Asstt. Govt.Pleader for Petitioners.
Shri V.B. Patil, Advocate for the Respondents.
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Coram : S.B. Deshmukh, and
Shrihari P.Davare, JJ.
Judgment reserved on : 05.10.2010.
Judgment pronounced on : 12.10.2010
JUDGMENT (PER, SHRIHARI P. DAVARE, J.)
01. 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.
02. 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.
ig Factual Matrix
04. 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,
candidates appeared for the written examination and
14 candidates were called for oral interview for
aforesaid four vacancies.
05. 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. 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.
06. 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.
07. 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
08. 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
ig 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.
09. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15.
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
16. 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.
17. 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 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.
18. 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". 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.
19. 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.
20. 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.
21. 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.
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
pnd/wp7767.09
