Dilip vs State Of Maharashtra
2010 Latest Caselaw 58 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                    
                           NAGPUR BENCH, NAGPUR




                                                   
                         WRIT PETITION NO.4582 OF 2010




                                         
    Dilip s/o. Punjaji Kharat,
    Aged 34 yrs., Occ. Police Patil,
    r/o. Palaskheda, Tah. Risod,ig
    Distt. Washim.                              ........       PETITIONER
                              
          // VERSUS //


    1. State of Maharashtra,
             

       through its Secretary,
       Department of Home,
          



       Mantralaya, Mumbai-32.

    2. The Sub-Divisional Magistrate,
        Washim, Distt. Washim.





    3. Arun @ Namdeo Kundlik Kharat,
       Aged 35 yrs., Occ. Nil, r/o.
       Palaskheda, Tahsil Risod,
       Distt. Washim.                           ........     RESPONDENTS





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                 Mr. P. B. Patil, Adv. for petitioner.
      Mr. N.W.Sambre, Government Pleader for respondent nos. 1 and 2.
                 Mr. R. N. Ghuge, Adv. for respondent no.3.
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                                CORAM : S. A. Bobde and




                                                                           
                                        Mrs. Mridula Bhatkar, JJ.

                                DATE     : 19.10.2010.




                                                   
ORAL JUDGMENT        (Per S. A. Bobde, J) :




                                                  
                                        

1. Rule returnable forthwith. Heard finally by the consent of the

learned Counsel for the respective parties.

2. By this petition, the petitioner has challenged the order passed

by the Maharashtra Administrative Tribunal, Nagpur setting aside his

appointment as a Police Patil at the instance of respondent no.3. The

petitioner applied for appointment as a Police Patil in pursuance of an

advertisement. He claimed that, as per the Government Gazette

dt.20.5.2009, a candidate who is a legal heir of a Police Patil who either

retires or dies while in service, is entitled to get preference in the matter

of appointment to the said post. In the selection process, six marks were

reserved for such candidates. Respondent no.3 (herein) was an ordinary

person not being a legal heir of a Police Patil. He lodged an objection

before appearing in the selection process against grant of six marks to

the petitioner on the ground that he is not entitled to such marks since he

was not a legal heir of a Police Patil. The petitioner and the respondent

no.3 along with one more candidate appeared in the selection process

and the petitioner was selected only because he was granted six

additional marks by reason of his being a legal heir of a Police Patil.

3. The Respondent no.3 (herein) challenged the appointment of

the petitioner before the Maharashtra Administrative Tribunal, Nagpur.

The Maharashtra Administrative Tribunal came to a conclusion that it was

not permissible to give preference to the legal heirs of a Police Patil while

making appointment to the post of Police Patil and relied on the

judgments in the cases of Secretary, A.P. Public Service Commission vs.

Y.V.V.R. Shrinivasulu and Ors.1 and Bhibhudatta vs. Union of India and

Ors.2 which lay down that a rule which provides for preference can be

operated only where one or more of the candidates are equally

positioned, by using the additional qualification as a tilting factor. On

facts, the Tribunal observed that the Sub-Divisional Magistrate, Washim

1.(2003) 5 SC Cases 341

2.(2002) 4 SC Cases 16

had granted six additional preferential marks to the petitioner and that

was the only reason why the petitioner was selected. In the result, the

Tribunal directed the SDM to correct the final marks sheet by deducting

six additional marks which were granted to the petitioner and issue an

appointment order in favour of the candidate securing highest number of

marks. While doing so, the Tribunal rejected the contention of the

petitioner that respondent no.3 (herein) was not entitled to challenge his

selection since respondent no.3 has participated in the process of

selection and that he approached the Tribunal only because he was not

selected.

4. Mr.P.B.Patil, Adv. for the petitioner reiterated the submission

pertaining to alleged ineligibility of respondent no.3 to challenge the

appointment of petitioner on the ground that he has participated in the

selection process. Learned Counsel for the petitioner relied on the

decision of the Supreme Court in the case of G.N.Nayak .vs. Goa

University and Others3, and the Division Bench Judgment of this Court in

the case of Sonali Ramkrishna Bayani .vs. State of Maharashtra and

Others4. There is no doubt that the settled position of law is that a

candidate who participates in the selection process is not entitled to turn

3. (2002) 2 SCC 712

4. 2003 (5) Mh.L.J. 738

around and challenge the process only because he does not succeed in

getting selected. In the case of G. N. Nayak (supra), the Supreme Court

made the following observations :

" According to Respondent No.5, the amendment of the qualifications for the post of Professor of Marine Science was illegal. It was contended that under Statute 8,

it is the Executive Council which has to prescribe the qualifications after considering the recommendations of the

Academic Council. According to Respondent 5, the qualifications which were prescribed in the 1995

advertisement and handout issued to the applicants in connection therewith had not been prescribed by the Executive Council nor recommended by the Academic

Council. Whether this is so or not, this is not a grievance

which could have been raised by Respondent no.5. He knew that there was a change in the eligibility criteria for the post yet he applied for the post and appeared at the

interview without protest. He cannot be allowed to now contend that the eligibility criteria were wrongly framed. "

5. A Division Bench of this Court has also made observations to

same effect. Thus, it is clear that a candidate who participates in the

selection process is barred from challenging the same. However, the rider

is that the bar applies only in the case where the candidate has

participated in the selection process without protest. It is, therefore,

necessary to see whether respondent no.3 had participated in the

selection process without protest. Before appearing in the selection

process, respondent no.3 had addressed a letter dt.12.4.2010 to the SDM

informing him that, according to said respondent no.3, the petitioner was

not a legal heir of a Police Patil. Mr. P. B. Patil, learned Counsel for the

petitioner submitted that the protest was not lodged by respondent no.3

on the ground that such preferential treatment and allotment of six marks

to an heir of a Police Patil is not legal, but it was lodged on the ground

that the petitioner was not, in fact, an heir of a Police Patil. It is true that

the respondent did not raise an objection on the ground of illegality and

unconstitutionality of such preference. But, there is no doubt that

respondent no.3 had lodged protest and it cannot be said that he had

appeared in the selection process without protest.

6. Mr.N.W.Sambre, Government Pleader for the State relied on the

decision of the Supreme Court in the case of India Cements Ltd. vs.

Collector of Central Excise5, where, in the different circumstances, the

Supreme Court held that it was sufficient if the party had

refused to accept the liability of excise without protest and that

5. (1989) 2 SCC 676

where no particular form was prescribed for protest against the levy, the

protest lodged by the petitioner should be treated as a protest. The

observations of the Supreme Court are as follows :

" We gave our anxious considerations to the rival

submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing

material were raised. If this could not be said to be a protest one fails to understand what else it could be. It

does not require much time to analyse the contents of the letter. An ordinary reading with common sense will

reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. "

7. We find that an ordinary reading of the objections raised by

respondent no.3 show that respondent no.3 had not accepted

candidature of the petitioner and his entitlement for the preferential six

marks without protest and it cannot be said that the respondent

participated without protest. In such matters, we do not consider it

appropriate to expect that letters of protest should be drafted with

precision. We, thus, see no merit in the submission made on behalf of the

petitioner that the respondent shall not be entitled to question the

appointment of the petitioner.

8. As regards the merits on the point of appointment, it is clear

that preference to a candidate in the matter of appointment to a service

under the State constitutes violation of Article 16 of the Constitution of

India since it gives preference to a citizen on the ground of his descent

and thus, invidiously discriminates against other citizen because he does

not have such descent. In the case of Yogender Pal Singh and Others

.vs. Union of India and Others6, the Supreme Court held as follows :

"17.

While it may be permissible to appoint a person who

is the son of a police officer who dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right

to appointment on the children or wards or other relatives of the police officers either in service or retired merely

because they happen to be the children or wards or other relatives of such police officers would be contrary to Article

16 of the Constitution. Opportunity to get into public service should be extended to all the citizens equally and should not be confined to any extent to the descendants or relatives of a person already in the service of the State or

who has retired from the service. In Gazula Dasaratha Rama Rao v. State of A.P. {(1961) 2 SCR 931 : AIR 1961 SC

6. (1987) 1 SCC 631

564} the question relating to the constitutional validity of Section 6 (1) of the Madras Hereditary Village Offices Act,

1895 (3 of 1895) came up for consideration before this Court. That section provided that where two or more

villages or portions thereof were grouped together or amalgamated so as to form a single new village or where any village was divided into two or more villages all the

village officers of the class defined in Section 3, clause (1) of that Act in the villages or portions of the villages or village amalgamated or divided as aforesaid would cease to

exist and the new offices which were created for the new

village or village should be filled up by the Collector by selecting the persons whom he considered best qualified

from among the families of the last holders of the offices which had been abolished. This Court held that the said provision which required the Collector to fill up the said new

offices by selecting persons from among the families of the last holders of the offices was opposed to Article 16 of the

Constitution. The court observed in that connection at pages 940-941 and 946-947 thus :

Article 14 enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India. It is available to all,

irrespective of whether the person claiming it is a citizen or not. Article 15 prohibits discrimination on some special grounds - religion, race, caste, sex, place of birth or any of them. It is available to citizens only, but is not restricted to any employment or office under the State. Article 16 clause

(1), guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any

office under the State; and clause (2) prohibits discrimination on certain grounds in respect of any such

employment or appointment. It would thus appear that Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of

citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under

the State. It is also worthy of note that Article 15 does not

mention 'descent' as one of the prohibited grounds of discrimination, whereas Article 16 does. We do not see any

reason why the full ambit of the fundamental right guaranteed by Article 16 in the matter of employment or appointment to any office under the State should be cut

down by a reference to the provisions in Part XIV of the Constitution which relate to Services or to provisions in the

earlier Constitution Acts relating to the same subject .... (Pages 940-941).

There can be no doubt that Section 6 (1) of the Act does embody a principle of discrimination on the ground of descent only. It says that in choosing the persons to fill the new offices, the Collector shall select the persons

whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. This, in our opinion, is discrimination on the ground of descent only and is in contravention of Article 16 (2) of the Constitution (pages 946-947) (emphasis in

original).

18. We are of opinion that the claim made by the appellants for the relaxation of the Rules in their cases only

because they happen to be the wards or children or relatives of the police officers has got to be negatived since their claim is based on 'descent' only, and others will

thereby be discriminated against as they do not happen to be the sons of police officers. Any preference shown in the matter of public employment on the grounds of descent

only has to be declared as unconstitutional. The appellants

have not shown that they were otherwise eligible to be recruited as Constables in the absence of the order of

relaxation on which they relied. Hence, they cannot succeed. "

9. It was also contended by Mr.P.B.Patil, Adv. for the petitioner

that direction of the Tribunal that six marks allotted to the petitioner

should be deducted and thereupon, whoever has been found to have

secured highest marks should be appointed is illegal. According to the

learned Counsel, it was necessary for the Tribunal to scrap the entire

selection process and direct that all the candidates should go through the

selection process which involves written examination and interview

afresh. Mr.P.B.Patil, Adv. relied on the judgment of the Supreme Court in

the case of Raj Kumar and Others .vs. Shakti Raj and Others7, where the

Supreme Court observed in the circumstances of that case that

appropriate and better course would be that, the Service Selection Board,

who called the names of all the candidates who were successful in the

written examination conducted during certain period, shall interview the

candidates and select them in accordance with law. However, such a

direction was given by the Supreme Court in the facts and circumstances

of that case. In particular, it was found in that case that, in that case, the

High Court has held constitution of Selection Committee and selection of

appellants as ultra-vires the power of the Government. Thus, one of the

reasons why the selection was found to be illegal was the constitution of

the Selection Committee itself. It appears that, it is for this reason and

other reasons peculiar to that case that the Supreme Court directed that

the entire selection process be held afresh. We see no such reason in the

present case. No objection has been raised to any other part of the

selection process such as the marks awarded in the examination or at the

interview. The only question that has been raised is whether the

petitioner was entitled to grant of six preferential marks on the ground

that he was legal heir of a Police Patil. Since we have come to the

conclusion that the petitioner is not entitled to be given six preferential

7. (1997) 9 SCC 527

marks, it would serve the interest of justice if the said six marks are

removed and the successful candidate is appointed on the basis of the

marks obtained by him without any preferential marks. We, thus, see no

reason to interfere with the impugned judgment of the Maharashtra

Administrative Tribunal, Nagpur. The Writ Petition is liable to be

dismissed. Accordingly, it is dismissed. Rule is discharged.

10. Mr.P.B.Patil, Adv. for the petitioners prays for grant of stay to

the judgment. The request so made is rejected.

                    JUDGE                        JUDGE
            
         



jaiswal