Bombay High Court
Dhanraj Balaprasad Chitlangi vs The State Of Maharashtra And ... on 13 April, 2016
Bench: S.S. Shinde
(1) W.P. No. 10166 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 10166 of 2015
District : Aurangabad
Dhanraj s/o. Balaprasad Chitlangi,
Age : 30 years,
Occupation : Private Service,
R/o. Durgawadi, Taluka : Paithan,
District : Aurangabad. .. Petitioner.
versus
The State of Maharashtra,
Through Secretary,
Medical Education and Drugs
Department,
GT Hospital Compound,
New Gokuldas Tajpal Premises,
9th Floor, Mumbai. .. Respondent.
...........
Mr. Nitin B. Suryawanshi, Advocate, for the petitioner.
Mr. V.S. Badakh, Asst. Government Pleader, for the
respondent.
...........
CORAM : S.S. SHINDE &
SANGITRAO S.PATIL, JJ.
Date of reserving
the judgment : 6th April 2016
Date of pronouncing
the judgment : 13th April 2016
::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 22:11:02 :::
(2) W.P. No. 10166 of 2015
JUDGMENT (Per Sangitrao S. Patil, J.):
1. Heard the learned Counsel appearing for the
petitioner and the learned Asst. Government Pleader
appearing for the respondent - State.
2. Rule. Rule made returnable forthwith. With
consent of the parties, the Writ Petition is heard
finally.
3. The petitioner has challenged the vires of
the communication dated 06.11.2013 (Exhibit "J")
issued by the respondent, as well as the judgment and
order dated 14.09.2015, passed in Original
Application No. 756 of 2015, by the Maharashtra
Administrative Tribunal ["MAT" for short], Bombay,
Bench at Aurangabad, upholding the correctness of the
said communication.
4. In response to advertisement No. 129/2011
dated 06.09.2011, issued by the Maharashtra Public
Service Commission ["MPSC" for short], the petitioner
applied from the open category for the post of
Pharmacist (Group 'B'). After holding interview and
personality test, MPSC recommended the name of the
petitioner for being appointed to the said post vide
letter dated 04.01.2013. In response to the letter
dated 05.01.2013, the petitioner submitted necessary
documents along with the certificates of requisite
(3) W.P. No. 10166 of 2015
experience for verification to the respondent. The
respondent informed the petitioner vide letter dated
06.11.2013 that his experience certificates issued by
the private Medical Stores cannot be considered as
valid and therefore he cannot be appointed to the
post of Phamacist (Group 'B'). Being dissatisfied
with the said communication, the petitioner filed
Original Application No. 756/2015 before the MAT,
Bombay, Bench at Aurangabad. After hearing the
petitioner and the respondent, the learned Members of
the MAT dismissed the said Original Application as
per the impugned judgment and order dated 14.09.2015.
5. The learned Advocate for the petitioner
submits that the petitioner is possessing the
required educational qualification as well as
experience as mentioned in the advertisement dated
06.09.2011. The petitioner possesses Master's Degree
in Pharmacy which entitles him to get preference for
being appointed to above mentioned post. He submits
that as per Clause 4.5 of the advertisement as well
as Rule 2(d)(iii) of the Pharmacist General State
Service, Class-II in Government Medical Colleges and
Attached Teaching Hospitals Under The Directorate of
Medical and Research (Recruitment) Rules, 1990 ["the
Rules" for short], prescribing the eligibility criteria
for the above mentioned post, there was no mention at
all that the candidate should possess the experience
of not less than one year in maintenance and
(4) W.P. No. 10166 of 2015
supervision of Government Medical Stores and not that
of private Medical Stores. The learned Counsel for
the petitioner further submits that asking the
petitioner to submit experience certificate issued by
any Government Medical Stores was totally
unwarranted. The respondent wrongly rejected the
candidature of the petitioner for the above mentioned
post on the ground that he did not produce the
experience certificate issued by any Government
Medical Stores.
6.
He then submits that the respondent did not
reject the candidature of the petitioner on any other
ground including that of his having experience of
less than one year as disclosed from the experience
certificates produced by him or that the experience
certificates produced by him are not genuine.
However, the learned Members of the MAT wrongly
embarked on the question of genuineness of the
certificates produced by the petitioner. The learned
Members of the MAT exceeded their jurisdiction and
justified the decision of the respondent in refusing
to appoint the petitioner to the above mentioned post
on that additional ground which was not even taken by
the respondent. He submits that the learned Members
of the MAT wrongly doubted genuineness of the medical
certificate issued by M/s. Samarth Medical & General
Stores.
(5) W.P. No. 10166 of 2015
7. The learned Advocate for the petitioner
submits that the certificates of experience produced
by the petitioner clearly show that the petitioner
possesses the experience of maintaining and
supervising Medical Stores for a period of more than
one year as required under Clause 4.5 of the
advertisement. He submits that the impugned
communication dated 06.11.2013 issued by the
respondent, as well as the judgment and order passed
by the learned Members of the MAT are not at all
sustainable being not legal and proper. He,
therefore, prays that the said communication as well
as the impugned judgment and order of the MAT may be
quashed and set aside and the petitioner may be
ordered to be appointed to the post of Pharmacist
(Group 'B') which post has been kept vacant in
pursuance of the directions given by this Court.
8. The respondent filed reply and opposed the
petition. The learned Asst. Government Pleader
submits that the experience certificates produced by
the petitioner do not show that the petitioner was
maintaining and supervising the Medical Stores for a
continuous period of one year. Moreover, the said
certificates have not been issued by the Government
Medical Stores. Therefore, according to him, the
candidature of the petitioner was rightly rejected by
the respondent. He further supports the impugned
judgment and order passed by the MAT on the same
(6) W.P. No. 10166 of 2015
grounds and prays that the petition may be dismissed.
9. So far as the eligibility of the petitioner
in respect of educational qualification is concerned,
there is no dispute that he possesses the same. It
is also not in dispute that the petitioner is
possessing the Master's Degree in Pharmacy and as
such is entitled to get preference for being
considered for the above mentioned post. The only
dispute is in respect of the requisite experience of
the petitioner for the said post. As per clause 4.5
of the advertisement as well as Rule 2(d)(iii) of the
above mentioned Rules, for being appointed to the
above mentioned post, one of the requirements is that
the candidate should have experience of not less than
one year in maintenance and supervision of Medical
Stores.
10. The petitioner produced the certificates of
experience dated 21.09.2012 and 04.10.2012 issued by
Jagdish Medical & General Stores, Paithan, wherein it
is mentioned that the petitioner was working in the
said Medical Stores in a supervisory capacity during
the period from 25.07.2007 to 19.03.2008 i.e. for 7
months and 24 days. It is mentioned in the
certificate dated 04.10.2012 that the petitioner was
performing the following duties :-
(1) Maintenance and supervision of medical stores,
(7) W.P. No. 10166 of 2015
(2) Maintenance of records and book keeping,
(3) Purchasing of medicines.
It is further mentioned therein that the petitioner
had knowledge of the said establishment and was
having administrative control thereof for the above
mentioned period.
11. The petitioner further produced the
certificate dated 09.04.2008 issued by the Assistant
Commissioner, Food & Drugs Administration,
Maharashtra State, Aurangabad, whereby permission was
granted to one Mr. Yogesh Sheshrao Gadhe to run M/s.
Samarth Medical & General Stores at Paithan during
the period 09.04.2008 to 08.04.2013. The petitioner
is shown as the person in-charge of the said Medical
Stores. The owner of the said Medical Stores
informed the Assistant Commissioner of Food and Drugs
Administration, vide letter dated 07.11.2008 that he
stopped the said Medical Stores with effect from
November 2008. The petitioner has specifically
mentioned at page 2 of his application submitted to
the MPSC, that he was working as a Pharmacist in M/s.
Samarth Medical & General Stores from 09.04.2008 to
30.10.2008 i.e. for a period of 6 months and 21 days.
12. From the above two certificates, it is quite
clear that the petitioner had experience of one year,
two months and 14 days in maintaining and supervising
(8) W.P. No. 10166 of 2015
the Medical Stores.
13. The petitioner produced one more certificate
of experience issued by Encore Healthcare Private
Ltd., Mumbai, showing that he served with the said
Company as Junior Officer - R.& D., from 15.11.2010
to 10.05.2012. The learned Members of the MAT did
not accept this certificate as the basis for holding
that the petitioner had the experience of maintaining
and supervising Medical Stores during the period from
15.11.2010 to 10.05.2012. Even if this certificate
is discarded, from the above mentioned two
certificates, it is quite clear that the petitioner
was holding experience of maintaining and supervising
Medical Stores for a period of more than one year.
14. Clause 4.5 of the advertisement as well as
Rule 2(d)(iii) do not prescribe that the candidate
should have experience in maintaining and supervising
Medical Stores for a continuous period of one year.
Therefore, the contention of the learned Asst.
Government Pleader, that the certificates of
experience produced by the petitioner do not show
that he was maintaining and supervising the Medical
Stores for a continuous period of one year and
therefore he was not eligible for being appointed to
the above mentioned post, cannot be said to have any
substance. Moreover, the respondent has not rejected
the candidature of the petitioner on the ground that
(9) W.P. No. 10166 of 2015
he does not possess the experience of maintaining and
supervising any Medical Stores for a continuous
period of one year.
15. As stated above, Clause 4.5 of the
advertisement as well as Rule 2(d)(iii) of the above
mentioned Rules do not mandate that the candidate
should have experience of maintaining and supervising
Government Medical Stores for a period of one year or
more. If the respondent wanted that the candidate
should have experience of maintaining and supervising
any Government Medical Stores for a continuous period
of one year, it should have specifically mentioned to
that effect in Clause 4.5 of the advertisement. In
the circumstances, rejection of candidature of the
petitioner on the ground which was not mentioned in
the advertisement cannot be said to be legal and
proper.
16. The respondent did not reject the
candidature of the petitioner on the ground that one
of the certificates produced by him was not genuine.
In the circumstances, the finding of the learned
Members of the MAT, recorded in para 24 of the
judgment, that the certificate issued by M/s. Samarth
Medical & General Stores cannot be accepted as
genuine, would not stand to reason. The learned
Members of the MAT, at their own, assigned one more
reason for rejection of the candidature of the
(10) W.P. No. 10166 of 2015
petitioner though the respondent itself had not taken
such a ground while refusing appointment to the
petitioner for the above mentioned post.
17. In view of the above facts and circumstances
of the case, the impugned communication dated
06.11.2013 issued by the respondent, as well as the
impugned judgment and order dated 14.09.2015 passed
by the learned Members of the MAT cannot be held to
be legal, proper and correct. They are liable to be
quashed and set aside.
18.
As per the order dated 12-10-2015 passed by
this Court, one post of Pharmacist (Group 'B') was
ordered to be kept vacant. As stated above, the
petitioner possesses the requisite experience for the
said post. Therefore, the respondent was not
justified in refusing to appoint the petitioner to
the said post on the ground that he was not having
the requisite experience.
19. In the result, the Petition is allowed with
the following directions :-
(a) The impugned communication dated 06.11.2013
(Exhibit "J") issued by the respondent, and the
impugned judgment and order dated 14.09.2015, passed
by the learned Members of the MAT in Original
Application No. 756 of 2015, are quashed and set
(11) W.P. No. 10166 of 2015
aside.
(b) The respondent is directed to appoint the
petitioner to the post of Pharmacist (Group 'B"), as
recommended by the MPSC, within a period of four
weeks from today.
20. Rule is made absolute in the above terms. In
the circumstances of the case, we leave the parties
to bear their own costs.
(SANGITRAO S. PATIL) (S.S. SHINDE)
JUDGE JUDGE
...........
puranik / WP10166.15
