Bombay High Court
Nilkanth Ashok Patil vs State Of Maharashtra And Others on 1 October, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2181 OF 2015
Nilkanth s/o. Ashok Patil,
Age 30 Years, Occu: Service,
R/o. A/P Madaj, Tq. Omerga,
District Osmanabad PETITIONER
VERSUS
1] The State of Maharashtra,
Through its Secretary,
Finance & Accounting,
Department Mantralaya,
Mumbai-32.
2] The Chief Executive Officer,
the Zilla Parishad, Osmanabad,
[Selection Committee],
Osmanabad, District Osmanabad
3] The District Collector,
Osmanabad [District Selection
Committee, Osmanabad],
District Osmanabad.
4] Sudhir s/o. Nivruti Jadhvar,
Age 30 Years, Occu: Service,
R/o. A/P Ratnapur, Tq. Kallam,
District Osmanabad RESPONDENTS
...
Mr. S.P.Urgunde, Advocate for the Petitioner
Mr. V.H.Dighe, AGP for the Respondent Nos. 1 & 3
Mr. S.B.Chaudhari, Advocate for the Respondent No.2
Mr. S.S.Jadhavar, Advocate for the Respondent No.4.
...
CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
Reserved on : 08.09.2015
Pronounced on: 01.10.2015
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JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith, and
heard with the consent of the parties.
The brief facts leading for filing the Writ Petition
as disclosed in the Memo of the Petition are as under:
3] The respondent No.2 published an
Advertisement bearing No.01/2014, inviting application to
fill in the Class-III & IV posts. According to the said
Advertisement, 3 posts of Junior Accounts Officer were to
be filled in from reserved category. One post each from
women and male [open category], and third one from
reserved category. As per the relevant condition of the said
advertisement, the candidate should possess graduation in
any faculty as mentioned in the advertisement, and his age
should not be more than 33 years. However, the candidate
is having 5 years working experience in Government office
or semi-Government offices or the candidate possessing
post-graduate in Commerce faculty with the special subject
of Accounting and Auditing shall be given preference for the
post of Junior Accounts Officer. It is the case of the
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petitioner that, as per the condition prescribed by the
respondent No.2 Authority, the petitioner is a qualified and
eligible candidate, therefore, he did file an application for
the post of Junior Accountant on 07.09.2014 from the
category of Male [open]. Thereafter, the respondent No.2
has issued Admit Card, and the written examination was
held on 22.11.2014.
4]
The petitioner appeared on 22.11.2014 for
written examination and result of the said Examination was
declared on 15.12.2014 on website of the respondent No.2
Authority, wherein it was found that, the petitioner secured
136 marks out of 200. The petitioner secured highest
marks in the examination conducted by the respondent
No.2 Zilla Parishad. After the result, the candidates were
called for verification of documents, submitted by the
candidates on 17.12.2014. As per the scheduled date, the
petitioner approached to the respondent Authority i.e. the
District Selection Committee, and submitted all the
documents required by the said Committee, and it was
informed that, the selection list will be published on
website. The respondent authority instead of publishing
the selection list on website, published said selection list on
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the notice board of Zilla Parishad on 18.02.2015. After
looking into the said selection list, the petitioner was
surprised as his name was not appearing in the said
selection list. Immediately, he approached to the President
of District Selection Committee and pointed out the mistake
committed by their Officer. The District Collector informed
the present petitioner that, the selection of the respondent
No.4 has been made only because he was having
experience of 5 years in service of Zilla Parishad,
Osmanabad. The petitioner has made detailed
representation dated 20.02.2015 to the respondent No.3,
and pointed out the relevant Rules, and clause of the
advertisement. However, there was no response.
5] The learned counsel appearing for the
petitioner submits that, the select list was not prepared in
accordance with the Maharashtra Zilla Parishad District
Services [Recruitment] Rules, 1967 [in short 'Rules of
1967']. It is submitted that, the petitioner has secured
highest marks in the examination conducted by the
respondent Zilla Parishad. It is submitted that, so far
preference is concerned, when both the candidates secure
equal marks, at that time the additional qualification of that
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candidate has to be considered. In the present case, the
petitioner has secured 136 marks out of 200, and the
respondent No.4 has secured 132 marks, in spite of that,
the respondent authority has appointed the respondent
No.4. The oral examination has not been conducted and all
the candidates were called on 17.12.2014 for verification of
documents submitted by them. The impugned select list is
without following due procedure of law and without giving
opportunity of hearing. The petitioner is also post-graduate
in Commerce faculty, and has completed post-graduation in
special subject of accounting and auditing, therefore, as per
the condition prescribed in advertisement, the preference
has to be given to the present petitioner considering his
educational qualification. Therefore, the learned counsel
appearing for the petitioner relying upon the Rules of 1967,
pleadings in the Petition, grounds taken therein, and
annexure thereto, submits that, the Petition deserves to be
allowed.
6] The learned counsel appearing for the
respondent No.2 invited our attention to the averments in
the affidavit-in-reply and submits that, an advertisement
was issued for the recruitment of three posts of Junior
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Accounts Officer, out of which, 1 post was for reserved
category, remaining two posts were for the candidates from
Open category, out of which one was for women. The
petitioner applied for the post of the Junior Accounts Officer
against the unreserved post. The procedure for calling
application online was handed over to the Zeltek Company.
The petitioner and other applicants applied through online
and no documents were attached to the application form.
The said Company without scrutinizing applications, issued
admit cards to the petitioner and other applicants. As the
admit card was issued, the petitioner appeared to the
written examination on 22.11.2014. The result was also
declared and the petitioner got highest marks i.e. 136
marks, and hence, his name appeared at serial No.1 in
merit list. It is submitted that, the petitioner and other
candidates who passed the written examination were called
for verification of all documents on 17.12.2014. The
scrutiny of the documents were conducted before the
District Selection Committee headed by the President i.e.
the Collector, Osmanabad. The petitioner applied for the
post of Junior Accounts Officer, but he was not qualified for
the post of Junior Accounts Officer and only due to the
online procedure adopted for the recruitment process, the
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form of the petitioner was accepted and he was permitted
to participate in the written examination. The petitioner is
not fulfilling the basic qualification for the selection for the
post of Junior Accounts Officer. The petitioner was not
fulfilling the basic criteria given by The Maharashtra Zilla
Parishads District Services [Recruitment] Rules, 1967. The
Appendix-XI of the said Rules lays down qualification of
candidates and method of appointment to the posts
included in District Service [Class-III] [Accounts]. After
perusing the relevant rules, it is crystal clear that, the
candidate who is being nominated for the said post unless
already in the service of Zilla Parishad, are not more than
30 years of age and possess a degree of a recognized
University and have practical experience in accounts and
auditing work in any Government Office or a business firm
or a local authority for a continuous period of at least 5
years and the preference is being given to those who hold a
degree in Commerce with Accountancy and Audit as Special
subjects or a 1st or 2nd Class degree. The petitioner is
admittedly not having any experience and hence he is not
qualified to be appointed as Junior Accounts Officer and
hence the District Selection Committee rightly rejected the
candidature of the petitioner and selected the respondent
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No.4, who secured 2nd highest marks in the merit list. It is
submitted that, the respondent No.2 has already issued
appointment order in favour of respondent No.4 on 18th
February, 2015 and hence there is no any violation of
interim order passed by the Hon'ble High Court. Therefore,
he prays that, Writ Petition may be rejected.
7] The
ig learned counsel appearing for the
respondent No.2, on written instructions, which are placed
on record submits that, at present there is no any vacant
post of the Junior Accounts Officer in the Establishment of
the respondent No.2.
8] The learned counsel appearing respondent No.4
submitted that, the issue raised in this Petition is no longer
res-integra and covered by the unreported Judgment of the
Bombay High Court, Bench at Aurangabad in the case of
Babasaheb Raghunath Mundhe Vs. The Regional
Selection Board & others in Writ Petition No.4211 of
1994 decided on 21st July, 2010. It is submitted that, the
appointment order of the respondent No.4 is issued, by
following due procedure of law. The advertisement for the
recruitment of three posts of Junior Accounts Officer, one
post was for reserved category, remaining two posts were
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from Open Category. The petitioner applied for the post of
Junior Accounts Officer against unreserved post. It is
submitted that, the Company which was given job to
scrutinize applications, inadvertently, issued admission card
to the petitioner and other applicants. After written
examination and the scrutiny of the documents were
conducted before the District Selection Committee headed
by the District Collector, Osmanabad, the respondent No.4
is appointed on the post of Junior Accounts Officer. It is
submitted that, the petitioner did not qualify for the post of
Junior Accounts Officer and only due to online procedure
adopted for the recruitment process, the form of the
petitioner was accepted and he was permitted to
participate in the written examination. The petitioner is not
fulfilling the basic qualification for the selection on the post
of Junior Accounts Officer. It is submitted that, the
Maharashtra Zilla Parishad District Services Recruitment
Rules, 1967, Appendix XI of the said Rules laid down
qualifications of the candidates and method of appointment
to the post included in the District Services Class-III
[Account]. It is submitted that, upon perusal of the said
Rules, it is crystal clear that, the candidate who is being
nominated for the said post unless already in the service of
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the Zilla Parishad, is not more than 30 years of age and
possess a degree of recognized University and have
practical experience in accounts and auditing in any
Government office or business firm or a local authority for a
continuous period of at least 5 years, he / she cannot be
appointed as an Account Officer. It is submitted that,
preference is being given to those who hold a degree in
Commerce with Accountancy, and Auditor as special
subjects or 1st or 2nd Class degree. Admittedly, the
petitioner is not having any experience and he is not
qualified to be appointed as Junior Accounts Officer and
hence the District Selection Committee has rightly selected
the respondent No.4, who secured 2nd highest marks in the
merit list. It is submitted that, the respondent No.4 has
sufficient experience of work in the Zilla Parishad, and
therefore, the Selection Committee, in the light of the
relevant Rules, rightly appointed respondent No.4. The
Division Bench of the Bombay High Court, Bench at
Aurangabad in similar facts situation in the case of
Babasaheb Raghunath Mundhe [supra], held that, the
candidate, having experience and requisite qualification as
per the conditions in advertisement, was eligible for the
appointment, however, in the facts of that case, respondent
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No.5 therein was not possessing requisite experience,
therefore, it was held that, respondent No.5 could not have
been considered for the post of Junior Accounts Officer.
Without prejudice to the submissions made
herein before, by way of alternate submission, the learned
counsel appearing for the respondent No.4 submits that, if
this Court comes to the conclusion that, the petitioner was
entitled for the appointment on the post of Junior Accounts
Officer instead of respondent No.4, in that case keeping in
view the observations of the Division Bench in the case of
Babasaheb Raghunath Mundhe [cited supra] in para No.
6, the appointment of the respondent No.4 deserves to be
protected.
9] We have given careful consideration to the
submissions of the learned counsel appearing for the
petitioner, learned AGP appearing for the Respondent -
State, and the learned counsel appearing for the
Respondent No. 2 and the respondent No.4. With their able
assistance, we have perused the pleadings and grounds
taken in the Petition, qualifications mentioned in the
advertisement for the appointment on the post of Junior
Accounts Officer, and also other documents placed on
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record, reply filed by the respondent No.2 and the
Judgment in the case of Babasaheb Raghunath Mundhe
[cited supra]. It is not in dispute that, the petitioner and
the respondent No.4 along with other candidates applied in
pursuant to the advertisement placed at Exhibit-A for the
post of Junior Accounts Officer in respondent No.2 Zilla
Parishad. It appears that, there were two posts advertised
from Open Category. Out of 2 posts, one was reserved for
women and another for male. The relevant portion of the
advertisement, for the purpose of proper adjudication and
for reaching to the correct decision in the Writ Petition,
reads thus:
in dz-&6 dfu"B ys[kkf/kdkjh% ¼osru lajpuk
9300&34800 xzsM osru 4200½ vf/kiklwup ft-i-
P;k lsosr ulwu T;kaps o; 33 o"kkZgwu vf/kd ulsy
vkf.k T;kauh ekU;rkizkIr fo+|kihBkph inoh /kkj.k
dsysyh vlsy o dks.krsgh ljdkjh dk;Zy;] O;ikjh
Hkkxhnkjh laLFkk vFkok LFkkfud izkf/kdj.k ;karhy
fdeku 5 o"kkZpk v[kaM lsospk T;kauk vuqHko vlsy
v'kk mesnokjkae/kwu ukefunsZ'kuk}kjs use.kwd
dj.;kr ;sbZy- ;kckcrhr ys[kk'kkL= vkf.k ys[kk ijh{kk
gs fo"k; ?ksowu okf.kT; 'kk[ksrhy inoh /kkj.k
dj.kk&;kauk vFkok izFke ok fOnrh; Js.khrhy
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inoh /kkj.k dj.kk&;kauk vf/kd ilarh fnyh tkbZy-
fdaok xf.kr vFkok lkaf[;dh vFkok ys[kk 'kkL= o
ys[kk ijh{kk gs izeq[k fo"k; ?ksowu inO;qRrj inoh /kkj.k
djhr vlrhy v'kk mesnokjke/kwu ukefunsZ'kukOnkjs
use.kqd dj.;kr ;sbZy- ;kckcrhr dks.kR;kgh ljdkjh
dk;kZy;] O;kikjh Hkkxhnkjh laLFkk vFkok LFkkfud
izkf/kdj.kkrhy ys[kk dk;kZpk vuqHko vl.kk&;kl
vf/kd ilarh fnyh tkbZy-
ig [Underlines added]
10] Upon perusal of the documents placed on
record, it appears that, the petitioner herein has completed
his Graduation in the Year 2007, from Dr. Babasaheb
Ambedkar Marathwada University, Aurangabad, and
secured 70% marks, and post graduation in Commerce
Faculty from University of Pune by securing 58% marks in
the Year 2009, with special subject of accounting and
auditing.
11] Upon careful perusal of the copy of an
application, which was filled in by the petitioner in pursuant
to the advertisement for the appointment on the post of
Junior Accounts Officer, the aforesaid qualifications are
mentioned in the said application. The relevant portion
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from the advertisement, which is reproduced herein above,
if carefully perused, in case of candidate who has passed
post-graduation examination with Mathematics or
Commerce, auditing and accounting, in that case such
candidate can be appointed directly [ukefunsZ'kuk}kjs].
Therefore, the petitioner, who has completed post-
graduation with commerce subject from the commerce
faculty, with special subject of accounting and auditing, the
experience of working in the Zilla Parishad or in other
establishments as mentioned in the advertisement was not
necessary. It is undisputed position that, the petitioner
stood first in the merit list by securing 136 marks, and the
respondent No.4 stood at serial No.2 by securing 132
marks. Therefore, on fulfilling requisite conditions /
qualifications as mentioned in the advertisement, which is
inconformity with the Rules of 1967, inevitable conclusion is
that, the petitioner should have been appointed on the post
of Junior Accounts Officer. It is true that, the respondent
No.4 has experience of working in the Zilla Parishad at his
credit. However, on fulfilling requisite qualifications and
after securing highest marks in the merit list, the petitioner
was entitled for the appointment and not the respondent
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No.4. The fact that the petitioner secured highest marks is
not disputed.
12] The reliance placed by the learned counsel
appearing for the respondent No.4 in the case of
Babasaheb Raghunath Mundhe [cited supra] to contend
that, on the count of equity the appointment of the
respondent No.4 may not be set aside, cannot be accepted
in the facts of the present case. In the facts of that case,
the respondent No.5 therein was working since 20th August,
1994 and Petition was decided on 21st July, 2010.
Therefore, keeping in view length of service and the fact
that, by the time Judgment was delivered the respondent
No.5 must have crossed upper age limit, the sympathetic
view was taken. However, in the present case, the facts
are quite distinguishable inasmuch as respondent No.4 was
already working in the respondent Zilla Parishad on some
other post, and selection process is conducted in the Year
2014, and final list of successful candidates was declared
on 18.02.2015, therefore, we are not inclined to accept the
prayer of the learned counsel appearing for the respondent
No.4 that, his appointment as Junior Accounts Officer may
not be set aside. However, we make it clear that, the post
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which was occupied by the respondent No.4, prior to his
appointment as Junior Accounts Officer, the respondent
No.4 shall be restored back to said position in the service
by the respondent No.2 Zilla Parishad.
13] The learned counsel appearing for the
respondent No.2 has informed this Court that, as on today
available.
there is no any vacant post of the Junior Accounts Officer is
The learned counsel appearing for the
respondent No.4 also made submission that, in case any
vacant post of Junior Accounts Officer is available or if
vacancy arises in future, respondent No.4 may be
accommodated on the said post. However, we leave the
said aspect for consideration of the respondent No.2, as
and when post becomes available.
14] If the respondent No.4 is paid salary of the post
of Junior Accounts Officer, from the date of his appointment
till date, the said payment of salary should not be
recovered from the respondent No.4. Though we are
inclined to give deemed date of appointment with effect
from 18th February, 2015 to the petitioner, however for the
purpose of salary for the period 18.02.2015 till the date of
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actual appointment of the petitioner, the same should be
paid notionally.
15] In the light of discussion and reasons recorded
in the foregoing paragraphs, the appointment of the
respondent No.4 deserves to be set aside, and accordingly,
the same is set aside, and the respondent No.2 is directed
to give appointment to the petitioner on the post of Junior
Accounts Officer i.e. on the post which was occupied by the
respondent No.4, by giving deemed date of seniority in the
cadre of Junior Accounts Officer from 18th February, 2015
within two weeks from today.
16] Rule is made absolute in the above terms. Writ
Petition stands disposed of.
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
DDC
