Bombay High Court
The Maharashtra Public Service ... vs Dr. Digambar Murlidhar Devang And ... on 24 December, 2014
Bench: S.V. Gangapurwala
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REPORTED
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7679 OF 2014
The Maharashtra Public Commission
Through its Secretary
3rd Floor, Bank of India Building,
Mahatma Gandhi road, Fort, Mumbai .. Petitioner
Versus
1) Dr. Digambar Murlidhar Devang,
Age : 51 Years, Occupation : Service,
Resident of : 17, Vivek Colony,
Sambhaji Nagar road, Jalgaon
2) The State of Maharashtra,
Through Secretary,
Education Department,
Mantralaya, Mumbai - 32 .. Respondents
Shri M. S. Kulkanri, Advocate for the Petitioner.
Shri R. S. Deshmukh, Advocate for Respondent No. 1
Shri U. S. Mote, A.G.P. for the Respondent No. 2
CORAM : S. V. GANGAPURWALA AND
V. K. JADHAV, JJ.
CLOSED FOR JUDGEMENT ON : 02ND DECEMBER, 2014
JUDGEMENT PRONOUNCED ON: 24TH DECEMBER,2014
JUDGEMENT (Per S. V. Gangapurwala, J.) :
1) The petitioner Commission published advertisement
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inviting application from the interested candidate for filing up
the post of Education Officer. Pursuant to the said
advertisement respondent No. 1 submitted his application. As
per clause 4 of the advertisement, it is stated that the age of the
candidate for reservation category should not be more than 45
year's. The respondent No. 1 on the date of submitting
application was 47 year's 6 month's and 14 day's. After
screening test, inquiry was conducted. The candidature of
respondent No. 1 is rejected on the ground that he is over age.
2) The respondent No. 1 aggrieved by the rejection of
his candidature on the ground of age, filed Original Application
bearing No. 775/2011 before the Maharashtra Administrative
Tribunal, Aurangabad. The tribunal allowed the Original
Application and directed the present petitioner to allow the
respondent No. 1 to participate in the selection process and to
give benefit of age relaxation to the respondent No. 1 as he
possesses exceptional qualification. The petitioner has assailed
the said judgement in the present writ petition.
3) Mr. Kulkarni the learned counsel for the petitioner
strenuously contends that, the upper age limit as laid down in
clause 4 of the advertisement, is 45 year's for the respondent No.
1 as he belongs to Special Backward Class Category. The
petitioner had received about 18,000/- applications and when
large number of applications are received the petitioner
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Commission is not required to relax the age. The learned counsel
for the said purpose relies on Rule 3 of the Maharashtra
Educational Services Class I ( Administrative Branch )
Recruitment Rules, 1978. According to the learned counsel it is
only if large number of applications are not received then only
the Commission can consider about the age relaxation.
According to the learned counsel all the persons who have
applied are allowed to appear for the screening test and it is only
thereafter the detail scrutiny is conducted of the candidates who
are successful in the screening test and in said scrutiny it was
found that the respondent No. 1 is over age. The clause of
relaxation of age in the advertisement is in a different context.
The tribunal has mis-read the same. According to the learned
counsel even otherwise the qualification of the respondent No. 1
cannot be said to be an exceptional qualification. The Court has
erroneously relied upon Clause 2 (B) of the Maharashtra
Educational Services Class I (Administrative Branch)
Recruitment Rules, 1978. The learned counsel relies on the
judgement of the Division Bench of this Court in a case of
Maharashtra Public Service Commission V/s Kisan
Tukaram More and Others reported in 2011 (Supp.)
Bom.C.R. 448.
4) Mr. Deshmukh the learned counsel for the
respondent vehemently submits that, Rule 2 of the Maharashtra
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Educational Services Class I (Administrative Branch)
Recruitment Rules, 1978 provides for relaxation in age in case
candidate possesses exceptional qualification. The same is made
clear vide proviso to Rule 2 (B) of the said Rues. The petitioner
possesses the qualification of degree in M.Com., B.Ed., M.Ed.,
Phd. and has also passed SET examination. No other candidate
who is selected has got Phd. Degree. The qualification of the
petitioner is an exceptional qualification which has been rightly
considered. According to the learned counsel the normal
function of the proviso is to except something out of the
enactment or to qualify something enacted therein which but for
the proviso would be within the perview of the enactment. The
learned counsel relies on the judgement of the Apex Court in a
case of Romesh Kumar Sharma V/s Union of India and
Others reported in 2006 (6) SCC 510. The learned counsel
further submits that, the tribunal has rightly considered that the
qualification of the petitioner is exceptional one and is entitled
for the benefit of Clause 4 (4) of the advertisement. The learned
counsel further submits that, the petitioner has got exceptional
experience as he is working on the establishment of Zilla
Parishad for 20 year's, initially as a teacher and thereafter as
Education extension Officer. The tribunal has rightly considered
the case of the present respondent No. 1 and has rightly passed
the order. The said order needs no interference.
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5) Before we advert to the submissions canvassed by the
learned counsel for respective parties it would be appropriate to
refer to the relevant Recruitment Rules.
"Rule 2 :-
Appointment to the post in Maharashtra
Educational Service Class I (Administrative
Branch) shall be made either -
(A) by promotion ofa suitable trained Graduate of
proved merit in Maharashtra Educational Service
Class II (Adminstrative Branch) or
(B) by nomination from amongst candidates
who -
(i) unless already in the service of Government
of Maharashtra be not more than 40 years of age :
Provided that the age-limit may be relaxed in
favour of candidates with exceptional
qualifications and / or experience; and
(ii) possess - (a) Bachelor's Degree in at least
Second Class or a Master's Degree of a recognized
University;
(b) B. Ed. Degree in at least the Second Class or
an equivalent qualification or M. Ed. Degree;
(c) experience of teaching, educational
administration and / or inspection for not less
than 7 year's, out of which , at least 5 years
(inclusive of at least 3 years teaching experience)
should be after obtaining the B.Ed. Degree; and
(d) possess adequate knowledge of Marathi:
Provided that for those who possess a Bachlor's
Degree in Ist Class the requirement regarding
experience may be relaxed to 5 years, out of which,
experience of theaching after obtaining B.Ed.
Degree should be of at least 3 years :
Provided further that preference may be given to
candidates who possess higher qualifications, such
as, Degree of M.Ed. Or a Doctorate in Education."
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"Rule 3 :-
The qualification regarding experience / higher
basic academic qualification is relaxable at the
discretion of the Maharashtra Public Service
Commission in the case of candidates belonging to
the Scheduled Castes and Scheduled Tribes and
Denotified Tribes / Nomedic Tribes, if at any stage
of selection, the Maharashtra Public Service
Commission is of the opinion that sufficient
number of candidates from these communities
possessing the requisite experience / higher basic
academic qualification are not likely to be
available to fill up the vacancies reserved for
them."
6) The undisputed factual matrix can be culled out as
under :-
[1] The respondent No. 1 on the date of application
was of 47 year's of age.
[2] The upper age limit for Special Backward Class
candidate to be eligible to make application is 45 year's,
however age relaxation can be granted in favour of a
candidate having exceptional qualification and / or
experience. The selection process is undertaken and the
persons are selected from Special Backward Class
Category having the necessary qualification. One Smt.
Suchita Ramesh Rodge has qualification of D.Ed., B.A.,
B.Ed., M.A., M.Ed. and one Mahesh Jagannath Chothe
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has qualification of D.Ed., B.Ed., M.A., M.Ed., M.Phil.
and SET.
7) The contention of the petitioner that as large number
of candidates were available for screening test / interview in
accordance with the prescribed age limit, the commission decided
not to relax the age limit under provision of exceptional
qualification / exceptional experience and for that purpose
reliance by the learned counsel for the petitioner on Clause 3 of
the Recruitment Rules is mis-placed. Rule 3 deals with
relaxation of experience / higher basic academic qualification at
the discretion of the petitioner Commission in case sufficient
number of candidates belonging to the Scheduled Caste and
Scheduled Tribe and / or De-notified Tribe / Nomedic Tribe are
not available to fill in the vacancies reserved for them. As such
Clause 3 would certainly not apply in the present factual context.
The age relaxation is permissible in respect of the
candidates possessing exceptional qualification / experience. The
aspect of age relaxation has no relevance with number of
candidates available for screening test / interview.
8) The case of the age relaxation would be governed by
Rule 2 of the Recruitment Rules. Rule 2 provides for the age
limit that is the age and the qualification. Further proviso to
said Rule 2 lays down that age limit may be relaxed in favour of
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candidates with exceptional qualification and / or experience.
Rule 2 would certainly be relevant in the present matter. The
same will have to be considered qua the particular post. The
word exceptional would in present context denote that which is
better than usual and better than common. A person would be
called exceptional if there was something supernormal about
him. Such person can sometimes be described as marvelous,
unparalleled. The word qualification would mean that which
makes any person fit to do a certain act or that on satisfaction of
which only the person in question could have been recruited.
Exceptional qualification would be such a qualification better
than required which a person seldom would possess as a
qualification which is not possessed generally by the persons
possessing the required qualification. It is only if a person
possesses exceptional qualification or experience proviso to Rule
2 of the Recruitment Rules can be invoked. Mere higher
qualification is not synonymous with the phraseology exceptional
qualification, they are distinct. These terms can not be used
interchangeably.
9) Whether a particular qualification is an exceptional
qualification, is to be considered by the authority considering the
candidature of the person. Further it is for the Commission to
consider whether the qualification of the candidate and / or the
experience gained by him is an exceptional one or not. It would
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not be within the province of the Court to hold the particular
qualification to be an exceptional qualification or otherwise. The
Courts can not be said to be a expert in academic matters. The
tribunal certainly exceeded its jurisdiction while construing the
qualification of the respondent No. 1 as an exceptional
qualification and there by directing the petitioner Commission to
give benefit of age relaxation to the respondent No. 1 and
consider his candidature for the selection of the said post.
10) As observed above it is for the authority to consider
the same. It should be best left to the authority to consider
whether the respondent No. 1 possesses the exceptional
qualification or not.
11) In light of that the judgement and order of the
tribunal can not be sustained and deserves to be set aside. The
same is hereby quashed and set aside.
12) The petitioner shall consider whether the respondent
No. 1 possesses the exceptional qualification for the post of
Education Officer that is the post for which applications are
invited and respondent No. 1 had applied. It is only if the
petitioner comes to the conclusion that respondent No. 1
possesses the exceptional qualification then only the petitioner
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may consider the candidature of respondent No. 1.
[ V. K. JADHAV, J. ] [ S. V. GANGAPURWALA, J. ]
