Bombay High Court
Tushar Babanrao Deshmukh vs The State Of Maharashtra on 21 December, 2012
Bench: B.R. Gavai, A.P. Bhangale
1 wp4791.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4791 OF 2012
Tushar Babanrao Deshmukh,
aged 32 years, occupation :
nil, r/o "Chandra Mauli",
Shahu Nagar, Ward No.16,
Chaitanyawadi, Buldhana,
Taluq and District Buldhana. ... Petitioner
- Versus -
1) The State of Maharashtra,
through the Chairman,
Maharashtra Public Service
Commission, 3rd Floor,
Bank of India Building,
M.G. Road, East Mumbai.
2) The State of Maharashtra,
through the Secretary,
Maharashtra Public Service
Commission, 3rd Floor, Bank of
India Building, M.G. Road,
East Mumbai.
3) The State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai.
4) Sachin Prabhakar Bade,
r/o "Ashirwad", Plot No.22,
::: Downloaded on - 09/06/2013 19:31:32 :::
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Behind Ras-Bihori International
School, Panchwati,
Nasik - 422 003.
5) Jitendra Mukundrao Patil,
r/o 18, "Yashada" Gayatri
Nagar, near Shubham Nagar,
Post Walwadi (Wadibokar),
Dhule, Taluq and District
Dhule - 424 004.
6) Mohan s/o Shrikrushna
Badukale, aged 38 years,
r/o in Kolhe House,
Rathi Nagar, Amravati. ... Respondents
-----------------
Shri C.S. Kaptan, Senior Advocate with
Shri A.P. Kalmegh, Advocate for petitioner.
Shri P.D. Kothari, Assistant Government Pleader for
respondent nos. 1 to 3.
Shri S.P. Palshikar, Advocate for respondent no.6.
----------------
CORAM : B.R. GAVAI AND
A.P. BHANGALE, JJ.
DATED : DECEMBER 21, 2012
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ORAL JUDGMENT (PER B.R. GAVAI, J.) :
Rule. Rule made returnable forthwith. Heard
finally with consent of the learned Counsel for the
parties.
2) The petitioner challenges the judgment and
order dated
25/9/2012 passed by the learned
Maharashtra Administrative Tribunal in Original
Application No.560/2011, thereby dismissing the
original application filed by the petitioner.
3) For appreciating the controversy, it will be
necessary to refer to the factual background in the
present matter, which is somewhat lengthy.
An advertisement came to be issued by the
respondent Maharashtra Public Service Commission on
27/6/2008, thereby inviting applications for the posts
of Deputy Superintendent of Police/Assistant
Commissioner of Police (Motor Transport) - Group `A'.
4 wp4791.12
The requisite qualification that was provided in the
advertisement was a Degree of recognized University
or Diploma of recognized Institute in Automobile or
Mechanical Engineering. Insofar as experience
requirement is concerned, it was provided that the
candidate should have three years' practical
experience in the field.
ig It was also provided that
experience acquired prior to obtaining academic
qualification would also be counted in an appropriate
case.
4) Undisputedly, the petitioner so also
respondent nos. 4 to 6 applied pursuant to the said
advertisement. The respondent MPSC published a list
of candidates, who were eligible to appear for the
written examination, which was to be conducted on
24/10/2010. The petitioner's name appeared at serial
no.61 in the said list. After written examination was
conducted, a list of candidates, who were eligible to be
called for oral interview so also the list of candidates,
5 wp4791.12
who were found to be not eligible for oral interview
were published. The petitioner's name did not appear
in any list. As such, the petitioner approached the
learned Maharashtra Administrative Tribunal seeking
direction to the respondent MPSC to call the petitioner
for interview. The learned Tribunal vide interim order
dated 16/8/2011 ig directed the respondent MPSC to
permit the petitioner to appear in interview.
Accordingly, the petitioner was called for interview on
18/8/2011. After interview was conducted, an affidavit
was filed on behalf of the respondent MPSC that the
petitioner did not get the requisite minimum marks in
the oral interview and as such, he was not entitled to
be selected. Along with affidavit, Standing Order dated
20/3/2002 was also placed on record and it was
contended that unless a candidate secures more than
40 marks in interview, he is not eligible to be selected.
5) When matter was heard by the learned
Maharashtra Administrative Tribunal, it was tried to be
6 wp4791.12
urged on behalf of the petitioner that the said Standing
Order was not applicable to the present selection
process. However, the learned Tribunal found that
there was nothing in the Original Application about
challenge to the applicability of the said Standing
Order and, therefore, declined to go into that question.
The learned Tribunal found that since the petitioner's
candidature was rejected on the ground that he did not
obtain more than 40 marks in the oral interview, the
original application was liable to be rejected. However,
the learned Tribunal left open the issue regarding
applicability of the said Standing Order. Being
aggrieved thereby, the petitioner has filed the present
petition.
6) Shri Kaptan, learned Senior Counsel appearing
on behalf of the petitioner, submits that the
respondent MPSC has been changing its stand time
and again as it would suit its convenience. It is
contended that earlier the stand taken by the
7 wp4791.12
respondent MPSC was that the petitioner's experience
was not as required and, therefore, he was not called
for the interview. It is submitted that as a matter of
fact, the scrutiny was done even prior to calling the
candidates for the written examination and from the
scrutiny sheet itself, it is clear that the respondent
MPSC, upon perusal of the documents submitted by
the petitioner, had found that the experience
certificate submitted by the petitioner was in
conformity with the requirements and as such, he was
found to be eligible. It is further submitted that
subsequently an endorsement has been made
mischievously that the petitioner's experience
certificate was not in consonance with the
requirements inasmuch as the petitioner's
appointment was on a temporary basis.
7) Learned Senior Counsel Shri Kaptan further
submits that the Government Resolution on which
reliance is placed by the respondent MPSC, does not
8 wp4791.12
exclude the experience gained by the candidate in
employment, which is of temporary nature. It is
contended that subsequently a stand has been taken
by the respondent MPSC that the petitioner has not
received more than 40 marks in the interview and as
such, he was not eligible to be considered. It is further
contended that the said Standing Order, which is relied
on by the respondent MPSC, is not applicable to the
present selection process inasmuch the present
selection process is a composite selection process
consisting of written examination and oral interview
and the said Standing Order is applicable only if
selection process is based on oral interview alone. The
learned Senior Counsel further submits that in view of
settled position of law, the respondent MPSC could not
have altered the terms and conditions, which were
provided in the advertisement. It is submitted that the
advertisement specifically provided that the marks of
both written examination and oral examination would
be counted for considering as to whether a candidate
9 wp4791.12
is qualified or not. The learned Senior Counsel relying
on the judgments of the Apex Court in the cases of
Ashok Kumar Sharma and others vs. Chander Shekhar
and another {(1997) 4 SCC 18}, Madan Mohan
Sharma and another vs. State of Rajasthan and others
{(2008) 3 SCC 724} and B. Ramakichenin @
Balagandhi vs. Union of India and others (2008 (1) ALL
MR 480) as well as judgment of the Division Bench of
this Court in the case of Sudhir s/o Sharadrao Hunge
and another vs. State of Maharashtra and others (2010
(4) Mh.L.J. 572) submits that it is not permissible for
the Authority to change the eligibility requirement and
the law requires that the Authority must adhere to the
requirements as prescribed in the advertisement
inviting applications.
8) Learned Senior Counsel Shri Kaptan further
submits that the learned Maharashtra Administrative
Tribunal ought to have permitted the petitioner to
amend the original application so as to incorporate the
10 wp4791.12
challenge to applicability of the Standing Order dated
20/3/2002 and decided the said aspect.
9) Shri Palshikar, learned Counsel appearing on
behalf of respondent no.6 and Shri Kothari, learned
Assistant Government Pleader appearing on behalf of
respondent nos. 1 to 3, submit that the petitioner
having participated in the selection process is now
estopped from challenging the same. It is contended
that petitioner while appearing for interview was aware
that unless he secures 40 marks in interview, he would
not be qualified. It is, therefore, submitted that having
knowledge of the said requirement, after participating
in the selection process, the petitioner is now estopped
from challenging the selection process. Learned
Counsel Shri Palshikar relies on the judgments of the
Apex Court in the cases of Madan Lal and others vs.
State of J&K and others {(1995) 3 SCC 486} and
Dhananjay Malik and others vs. State of Uttaranchal
and others {(2008) 4 SCC 171} as well as judgment of
11 wp4791.12
the Division Bench of this Court in the case of Sonali
Ramkrishna Bayani vs. State of Maharashtra and
others (2003 (5) Mh.L.J. 738). Learned Counsel
Shri Palshikar also relies on the judgment of the
Division Bench of this Court in the case of Manoj s/o
Arvindrao Sable and others vs. State of Maharashtra
and others (2011 (1) Mh.L.J. 344) in support of the
proposition that prescribing securing of minimum
number of marks in oral interview is permissible in law
and, therefore, cannot be faulted with.
10) Shri Kothari, learned Assistant Government
Pleader for respondent nos. 1 to 3, relies on the
judgment of the Apex Court in the case of Vijendra
Kumar Verma vs. Public Service Commission,
Uttarakhand and others (2011 (1) SCC 150) in support
of the aforesaid propositions. The learned Assistant
Government Pleader submits that the petitioner did
not possess the requisite experience and also did not
obtain the minimum marks in the oral interview as
12 wp4791.12
required and as such, his candidature has rightly been
rejected by the respondent MPSC.
11) We will first deal with the preliminary
objection raised on behalf of the respondents
regarding tenability of the petition. By now, it is a
settled position of law that if a candidate takes part in
the selection process, he is estopped from challenging
the selection process after he fails to succeed in it.
This is basically on the ground that a party cannot be
permitted to take chances.
12) In the case of Madanlal and others (cited
supra), the candidates had challenged the selection
process after they were declared unsuccessful in the
selection process. In the said case, one challenge,
which was made by the candidates, was that the
members of the Selection Committee ought to have
recorded separate marks for each of the candidates.
However, the Apex Court found that there was nothing
13 wp4791.12
in the Rules, which provided for separate assessment
of marks for candidates at viva voce. The Apex Court
found that the candidates were aware about the Rules
and, therefore, cannot be permitted to argue that the
Selection Committee ought to have awarded marks
de hors the Rules.
13)
Insofar as the case of Dhananjay Malik and
others (cited supra) is concerned, in the said case, it
was the contention of the petitioners therein that the
advertisement, which was issued by the Authorities,
was not in accordance with the Rules. However, on
the basis of the said advertisement, the candidates
had appeared. In this background, the Apex Court
observed in para (9) of the judgment, which reads
thus :
"9) In the present case, as already pointed
out, the respondent-writ petitioners herein
participated in the selection process without any
demur; they are estopped from complaining that
the selection process was not in accordance with
the Rules. If they think that the advertisement
and selection process were not in accordance
14 wp4791.12
with the Rules, they could have challenged the
advertisement and selection process without
participating in the selection process. This has
not been done."
14) Insofar as judgment of the Division Bench of
this Court in the case of Sonali Ramkrishna Bayani
(cited supra) is concerned, in the said case, the
petitioner after having participated in the entire
selection process, had challenged that the selection
process was not in accordance with law and it was held
that once participated, the petitioner cannot challenge
the selection process. A similar view has been taken
by the Apex Court in the case of Vijendra Kumar Verma
(cited supra) that once a candidate acquiesced to the
selection process, it is not permissible for him to
challenge the same.
15) It can clearly be seen that in all the aforesaid
cases, the candidate had voluntarily participated in the
selection process and subsequently challenged validity
15 wp4791.12
thereof. In the present case. the petitioner was
compelled to approach the learned Maharashtra
Administrative Tribunal contending that though he was
qualified, he was not called for interview. It was the
contention of the petitioner that denial of an
opportunity to appear for oral interview was de hors
the selection process. In this factual background, the
learned Tribunal, by an interim order, directed the
respondent MPSC to conduct interview of the
petitioner. In the present case, it is not the case of
the petitioner that the selection process, as envisaged
by the advertisement or rules, is illegal or ultra vires.
The contention of the petitioner is that though the
selection procedure prescribes one mode, the
respondent MPSC has taken recourse to some other
mode, which is not permissible under advertisement
and recruitment rules. In that view of the matter, we
find that the aforesaid judgments would not be
applicable to the facts of the present case.
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16) Insofar as contention of the respondents that
the Authority is permitted in law to prescribe minimum
marks in the oral interview is concerned, there can be
no quarrel with the said proposition. In view of the law
laid down by the Apex Court in the case of Vijendra
Kumar Verma (cited supra) and Division Bench of this
Court in the case of Manoj s/o Arvindrao Sable and
others (cited supra), an Authority is always permitted
to prescribe minimum marks for an oral interview.
However, the question would be - at what stage ? In
the present case, we find that the respondent MPSC
has been changing its stance from time to time so as
to suit its convenience. We are sorry to say that the
facts, as placed on record, do not support the stance
as taken by the respondent MPSC.
17) It is the case of the respondent MPSC that the
petitioner was not qualified since he did not posses the
requisite experience. The petitioner had submitted his
experience certificate along with application form. The
17 wp4791.12
same is placed on record at page 72. The said
certificate was issued certifying that the petitioner was
working in a supervisory capacity. Though the
certificate shows the nature of employment as
temporary, it indicates that the petitioner had been
working from 1/6/2000 to 31/5/2003. It is thus clear
that the petitioner possessed the necessary experience
of three years. The question is whether experience of
temporary employment would be the requisite
experience as required under Government Resolution.
However, we will deal with the said aspect at little
later stage.
18) The respondent MPSC has taken a stand in its
affidavit-in-reply submitted before the learned
Tribunal on 8/11/2011 as under :
"In all 376 applications were received against
4 posts advertised for the Deputy
Superintendent Police/ Assistant
Commissioner Police (Motor Transport),
Group-A, as such to shortlist the said large
number of applications, the Commission
conducted a written objective type screening
18 wp4791.12
test and allowed all the candidates including
the applicant to appear for the said screening
test without scrutinizing their documents and
application forms. The Commission has
declared the result of the written test and
called all the qualified candidates including
the applicant for the interview."
It is thus the case of the respondent MPSC that all the
applicants were permitted to appear for the written
examination without there being any screening and
without scrutinizing their documents, which were
submitted along with the application forms. The
record of the respondent MPSC itself falsifies the claim.
The scrutiny sheet, which is available on the website of
the respondent MPSC itself, shows that the respondent
MPSC had scrutinized the application form of the
petitioner. On right side, there is a column with
heading "for Office Use only". Under that column, it is
mentioned as "beko". The petitioner's qualification has
been shown as B.E. (Mech.). The experience has been
shown as of three years. The endorsement dated
3/9/2010 made by an Officer shows that the petitioner
19 wp4791.12
possesses the requisite qualification and experience
and, therefore, is eligible. The said endorsement was
also endorsed by a superior Officer on 15/3/2011.
However, there is an endorsement of 26/4/2011,
which for the first time states that "foghr inkojhy vuqHko ;ksX;
ukgh & vik=". However, to the naked eye, it would appear
that the words "vuqHko ;ksX; ukgh & vik=" have been written
subsequently. Not only this, the list, which has been
published by the respondent MPSC itself, which is
annexed as Annexure "C" to the petition, shows that
scrutiny was done and a list of 69 candidates eligible
to appear for written examination, which was to be
conducted on 24/10/2010, was prepared. In the said
list, undoubtedly the name of the petitioner is
included. In that view of the matter, we find that the
respondent MPSC has made a totally incorrect
statement on the affidavit before the learned
Maharashtra Administrative Tribunal that the scrutiny
of documents of candidates was not done.
20 wp4791.12
19) Apart from that, we also find that the
contention of the respondent MPSC that the
petitioner's experience as a temporary employee
cannot be taken into consideration in view of
concerned Government Resolution is incorrect. It
would be relevant to refer to Clauses 4.1.13.3 and
4.1.13.4 of the prospectus furnished by the respondent
MPSC to the candidates, which read thus :
Þ4-1-13-3 'kklu ifji=d] lkekU; iz'kklu foHkkx] dzekad &
,lvkjOgh&[email protected]@[email protected]] fnukad 3 tqyS] 2004 uqlkj 'kklu
lsors hy fujfujkG;k inkaoj [email protected]'kukus lsokHkjrh
dj.;kdfjrk lsok izos'k fu;ekuqlkj foghr vuqHkokP;k dkyko/khph x.kuk
djrkuk jkstankjh] dk;ZO;;h] djkji/nrh] eku/ku] bR;knh Lo:ikr dsoG
iw.kZoG
s dke dsys vlY;klp vlk dkyko/kh vuqHkoklkBh xazkg; /kj.;kr
;sbZy-
4-1-13-4 rkfldk (On hourly basis)] fu;rdkfyd
(Periodical)] va'kdkyhu (Part time)] fon;kosruh
(On Stipend)] vH;kxr (Visiting)] va'knkukRed
(Contributory)] foukosruh (Without pay) rRokoj
dsysY;k va'kdkyhu lsospk dkyko/kh] izHkkjh (in-charge) Eg.kwu
use.kqdhpk dkyko/kh] vfrfjDr dk;ZHkkjkpk (Additional
Charge)] dkyko/kh] ekulsosP;k fu;qDrhPkk dkyko/kh vuqHkoklkBh
xzkg; /kj.;kr ;s.kkj ukgh-ß
21 wp4791.12
It can thus be seen from the document of the
respondent MPSC itself that what is excluded from
consideration as a qualifying experience is an
employment on hourly basis, periodical employment,
part time employment, employment on stipend,
employment on visiting or contributory terms,
employment without pay and employment, which is on
the basis of In-charge or additional charge. It can also
be seen that further exclusion is of employment, which
is on daily wage basis, contract basis or honorarium
basis. It can thus be clearly seen that what has to be
excluded has been specifically provided in the
aforesaid clauses. The said Clauses do not exclude
employment, which is of temporary nature. In that
view of the matter, we find that the contention of the
respondent MPSC that the petitioner was not
possessing the requisite experience is also not correct.
20) The next question is whether the respondent
MPSC was justified in not considering the candidature
22 wp4791.12
of the petitioner on the ground that he did not obtain
minimum 40 marks in the oral interview. By now, it is
a settled position of law that once an eligibility criteria
is prescribed in an advertisement, it is not permissible
for the Authority to change the same. The Apex Court
in the case of Ashok Kumar Sharma and others (cited
supra) has observed thus :
"Where applications are called for prescribing a
particular date as the last date for filing the
applications, the eligibility of the candidates shall
have to be judged with reference to that date and
that date alone. A person who acquires the
prescribed qualification subsequent to such
prescribed date cannot be considered at all. An
advertisement or notification issued/published
calling for applications constitutes a
representation to the public and the authority
issuing it is bound by such representation. It
cannot act contrary to it. The reasoning in the
majority opinion that by allowing the 33
respondents to appear for the interview, the
recruiting authority was able to get the best
talent available and that such course was in
furtherance of public interest is, an impermissible
23 wp4791.12
justification. The minority opinion in the 1993
decision in Ashok Kumar Sharma case that the 33
respondents, who were not qualified on the date
of submission of the application but had acquired
the requisite qualification before the date of
interview, could not have been allowed to appear
for interview, was right."
It can thus clearly be seen that an eligibility criteria will
have to be considered as was existing on the last date
of submitting an application.
21) The Apex Court had an occasion to consider
somewhat similar issue in the case of B. Ramakichenin
@ Balagandhi (cited supra) wherein the advertisement
prescribed two years' experience. However,
shortlisting was done by the UPSC by considering two
years' experience only after a candidate passed M.Sc
degree. Contending that there was no requirement
that two years' experience should be after obtaining
the Master degree in Agriculture, the candidate
approached the High Court, which rejected the
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petition. Being aggrieved thereby, the candidate went
before the Apex Court. The Apex Court in para (23) of
the judgment observed thus :
"23) Had paragraph 3.1 not been in the
advertisement of the UPSC it is possible that we
may have taken a view in favour of the
respondents since in that case it was open to
the UPSC to resort to any rational method of
short-listing of its choosing (provided it was fair
and objective). However, in the present case, a
particular manner of short-listing has been
prescribed in paragraph 3.1. Hence, it is not
open to the UPSC to resort to any other method
of short-listing even if such other method can
be said to be fair and objective."
It can thus clearly be seen that in the present case,
the advertisement mentions that the marks obtained in
the written examination will be added to the marks
obtained in the oral interview. However, it is nowhere
stated that minimum 40 marks should be obtained by
a candidate in the oral interview.
25 wp4791.12
22) It is not the situation in the case in hand that
eligibility criteria has not been provided in the
advertisement. In this connection, it would be relevant
to refer to Clause 8.1 of the advertisement issued by
the respondent MPSC, which reads thus :
"8.1 Written objective type test (multiple
choice question) will be conducted and followed
by interview for selection of candidates to the
posts. Marks obtained in the written test will be
added to the marks obtained in the interview.
However, the Commission at its discretion may
shortlist the applicants for interview based on
reasonable criteria, i.e. higher qualification
and/or experience in place of written test. In
case of the written test, the syllabus and
medium of question paper and other details for
the test shall be displayed on the Commission's
Website. Accordingly, the weightage of written
tests and interview shall also be displayed."
It can thus clearly be seen that the said advertisement
specifically provides that written objective type test
(multiple choice questions) will be conducted and
followed by interview for selection of candidates to the
posts. It further provides that the marks obtained in
the written test will be added to the marks obtained in
the interview. Perusal of the entire advertisement
26 wp4791.12
reveals that nowhere it is stated that the candidate
must possess 40 marks or more in the oral interview
for being considered eligible. In that view of the
matter, we find that insistence on obtaining minimum
40 marks in the oral interview was not permissible.
23) It will also be relevant to refer to Rules of
Procedure as prescribed by the respondent MPSC.
Clause (II) of Rule 7 of the Rules of Procedure, which
deals with modes of recruitment, reads thus :
"(II) Direct Recruitment - Shall consist of any one
of the following :
(i) By interviews only when the number of eligible
applicants is within the proportion prescribed
under the provision of Rule 9(i).
(ii) First by shortlisting candidates by applying
criteria and thereafter by interview of the
shortlisted candidates.
(iii) By holding the screening test of the eligible
candidates for shortlisting candidates based on
their merit of the screening test and interview of
such shortlisted candidates."
It can thus be clearly seen that while making direct
recruitment, the respondent MPSC can take recourse to
27 wp4791.12
three modes, i.e. by interviews alone when the number
of eligible applicants is within the proportion prescribed
under the provisions of Rule 9(i), first by shortlisting
candidates by applying criteria and thereafter, by
interview of the shortlisted candidates, and by holding
the screening test of the eligible candidates for
shortlisting candidates based on their merit of the
screening test and interview of such shortlisted
candidates. It can thus be clearly seen that in the
present case, the respondent MPSC has not resorted to
the first mode of recruitment, i.e. by holding interviews
only. The mode that was adopted was first shortlisting
candidates on the basis as to whether they possessed
the requisite qualification and experience or not and
thereafter by holding a written test and thereafter
calling the candidates, who had succeeded in the
written test, for oral interviews. Perusal of the
Standing Order dated 20/3/2002, which has been relied
on by the respondent MPSC, clearly reveals that it is
applicable only in case of recruitment by direct
28 wp4791.12
interviews. As already discussed hereinabove, in the
present case, the respondent MPSC has not resorted to
mode of direct recruitment only on the basis of
interviews and as such, reliance on the said Standing
Order dated 20/3/2002, in our view, is without
substance.
24)
Insofar as reliance by the respondent MPSC on
Clause 3.10.3, which is now a part of the General
Guidelines to the candidates is concerned, no doubt,
the said Clause requires that a candidate must secure
more than 40% marks in the oral examination.
However, it is to be noted that the said guidelines were
published in the month of September 2010 whereas
the posts in question were advertised in the month of
June 2008. In the case of Madan Mohan Sharma and
another (cited supra), after the posts were advertised,
the Rules were amended wherein criteria for selection
was modified after the selection process began. The
Apex Court in paragraphs (11) and (12) of the
29 wp4791.12
judgment observed thus :
"11) We have heard learned Counsel for the
parties and perused the records. Mr. M.R. Calla,
learned Senior Counsel appearing for the
appellants has strenuously urged that during the
pendency of the selection process, the eligibility
criteria were changed and the date for submission
of the application in pursuance to the
advertisement was extended and Rule 266 of the
Rules of 1996 came into being on 30-12-1996
whereby it was provided that Higher Secondary
Examination shall be the criteria for preparing the
merit list. As such, as per the service rules, the
selection should have been made on the basis of
Higher Secondary Examination marks and not on
the basis of Secondary Examination marks. We
regret this cannot be accepted. Once the
advertisement had been issued on the basis of the
circular obtaining at that particular time, the
effect would be that the selection process should
continue on the basis of the criteria which were
laid down and it cannot be on the basis of the
criteria which has been made subsequently.
12) As per the circular which was obtaining at
the time when the advertisement was issued
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dated 24-7-1995, the criteria for selection to the
post of teacher Grade III was Secondary
Examination though this was changed during the
pendency of the advertisement. Subsequent
amendment of the Rules which was prospective
cannot be made retrospective so as to make the
selection on the basis of the Rules which were
subsequently amended. If this was to be done,
then the only
ig course open was to recall
Advertisement No.1 of 1996 and to issue fresh
advertisement according to the Rules, which had
come into force. Secondly, this was not done and
erroneously the authorities made the amended
Rules applicable and proceeded with the selection,
which resulted into litigation and ultimately
Radhey Shyam Sharma succeeded in that
litigation and it was held that the selection should
be made as per Secondary Examination marks,
the criteria which was prevalent at the time when
the advertisement was issued."
It can thus clearly be seen that the respondent MPSC is
not justified in relying on the guidelines, which were
issued in September 2010 whereas the posts in
question were advertised in the month of June 2008
31 wp4791.12
and on the basis of the qualification prescribed in the
advertisement, selection process had commenced
much prior to September 2010. In view of the
aforesaid judgment of the Apex Court, the stand taken
by the respondent MPSC is totally without any merit.
25) In order to ascertain as to how much marks
were obtained by the petitioner and respondent no.6,
who were competing for the post reserved for
candidates belonging to "Other Backward Class"
category, we had called for the original record
indicating marks allotted by the respondent MPSC to
the candidates. It would be relevant to note that the
petitioner has secured 105 marks in the written
examination whereas respondent no.6 has secured 76
marks. In the oral interview, the petitioner has been
given 36 marks whereas respondent no.6 has been
given 59 marks. The total of the petitioner's marks in
the written examination and interview comes to 141
and that of respondent no.6 comes to 135. In spite of
32 wp4791.12
respondent no.6 being given 23 marks more than the
petitioner in the oral interview, the respondent no.6 is
having 6 marks less than that of the petitioner. We do
not want to speak anything more about all this. The
facts are so glaring that they speak for themselves.
26) We further find that the learned Maharashtra
Administrative Tribunal has taken a hyper-technical
view in the present matter. By now, it is a settled
principle of law that Courts are required to be liberal in
grant of amendments. In the present case, the matter
was yet to be admitted and was at a preliminary stage.
The learned Tribunal instead of non-suiting the
petitioner on a hyper-technical ground, could have
allowed the petitioner to raise a ground regarding
inapplicability of the Standing Order dated 20/3/2002
and decided the issue on merits. In any case, since
the learned Tribunal has failed to do so, we were
required to embark upon an enquiry in that regard.
33 wp4791.12
27) In the result, we are of the considered view
that the impugned judgment and order dated
25/9/2012 passed by the learned Maharashtra
Administrative Tribunal is not sustainable in law. The
same is, therefore, quashed and set aside. The
respondent MPSC is directed to consider the marks
obtained by the petitioner and respondent no.6 in the
written examination and oral interview both and
declare the candidate, who has secured more marks,
as selected against the post of Deputy Superintendent
of Police/Assistant Commissioner of Police (Motor
Transport) Group `A' reserved for "Other Backward
Class" category candidates.
28) Rule is made absolute in the aforesaid terms.
No order as to costs.
29) The Registrar (Judicial) is directed to re-seal
the envelope containing the mark-sheets and hand
over the same to the learned Counsel for the
34 wp4791.12
respondent MPSC, who shall hand it over to the
competent Authority of the respondent MPSC.
30) At this stage, Shri Palshikar, learned Counsel
for respondent no.6, seeks stay of this judgment for a
period of eight weeks from today.
Taking into consideration the factual background,
which we have resorted to at length, we do not find
that this is a fit case for grant of stay. The request is
rejected.
JUDGE JUDGE
khj
