Sidharth Maroti Gaikwad vs The State Of Maharashtra And ...
2016 Latest Caselaw 4766 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                           WRIT PETITION NO.3977 OF 2014

    Sidharth s/o. Maroti Gaikwad,




                                                                        
    Age 41 years, Occ. Teacher,
    r/o. Varma Nager, Policy Colony,




                                                
    Parbhani,                                             ..Petitioner  

                           Vs.

    1. The State of Maharashtra,




                                               
       The Secretary, Director of Education,
       Mantralaya, Mumbai - 32

    2. Dr.Babasaheb Ambedkar Marathwada




                                       
       University, Aurangabad,
       through its Vice Chancellor,
                                
    3. Dr.Babasaheb Ambedkar Marathwada
       University, Aurangabad,
                               
       Through its Chairman of Committee

    4. Yogesh Prakash Surwade,
       Quarter No.C-2, K.N.P. College
       of Veterinary Science, 
      


       Shirwal, Dist. Satara
       Junior Library Assistant, 
   



       Library Department,
       Dr.Babasaheb Ambedkar Marathwada
       University, Aurangabad                             ..Respondents





                               --
    Mr.R.O.Awsarmol, Advocate for petitioner

    Mr.S.D.Kaldate, AGP for respondent no.1





    Mr.S.G.Chapalgaonkar,   Advocate   for   respondent   nos.2 
    and 3

    Mr.B.S.Shinde,   Advocate   i/b.   Mr.V.P.Latange,   Advocate 
    for respondent no.4
                                  --
                              CORAM  : S.S. SHINDE AND
                                         SANGITRAO S.PATIL, JJ. 
                       RESERVED ON  :  AUGUST 08, 2016
                       PRONOUNCED ON:  AUGUST 22, 2016




       ::: Uploaded on - 22/08/2016             ::: Downloaded on - 23/08/2016 00:37:37 :::
                                          2                               wp3977-2014

    JUDGMENT (PER SANGITRAO S. PATIL, J) :

Heard.

2. Rule. Rule made returnable forthwith. Heard

finally with consent of the parties.

3. The petitioner has challenged selection of

respondent no.4 to the post of Junior Library Assistant

and further sought for a direction for his getting

appointed to the said post.

4.

In response to the advertisement issued by

respondent no.2 on 06.03.2012, the petitioner and

respondent no.4 applied for the post of Junior Library

Assistant reserved for the Scheduled Caste category.

According to the petitioner, he was qualified for the

said post since he was possessing educational

eligibility as well as experience of five years in the

library serving more than thousand members. The

petitioner passed written test and appeared for the

interview. However, he was not selected for the post of

Junior Library Assistant and on the contrary, respondent

no.4 came to be selected for the said post. According to

the petitioner, respondent no.4 is not possessing the

requisite experience of five years after obtaining the

3 wp3977-2014

decree in Library Science. Therefore, respondent no.4

was not eligible for being selected for the said post.

The petitioner, therefore, prayed that the selection of

respondent no.4 for the said post may be set aside and

he (the petitioner) may be ordered to be appointed to

the said post.

5. The learned Counsel for the petitioner, relying

on the averments in the petition and the rejoinder filed

by him, submits that the requisite experience of five

years in any library serving more than thousand members,

is required to be possessed by a candidate after

obtaining the basic qualification of Graduation in

Library Science. He submits that respondent no.4 passed

H.S.C. in the year 2003, completed graduation in Arts in

2008 and obtained the Degree in Library Science in 2009.

Respondent no.4 is shown to have served as Library

Assistant from 01.04.2004 to 31.10.2006 and from

14.11.2006 to 10.04.2012. According to him, respondent

no.4 should have gained the requisite experience of five

years after obtaining the Bachelor's Degree in Library

Science in the year 2009. On the other hand, the

petitioner obtained the Degree in Library Science in the

year 1997. He worked as a Librarian from 29.12.2003 to

4 wp3977-2014

04.08.2006 and then, as a Junior Lecturer in Library

Science from 22.06.2007 to 15.09.2009. The petitioner

was given additional charge of working in the College

Library. Thus, according to him, the petitioner was

possessing the requisite experience of five years after

obtaining the Degree in Library Science. According to

him, the candidature of the petitioner has been wrongly

rejected by respondent no.2 and respondent no.4 has been

wrongly selected and appointed to the post of Junior

Library Assistant. He, therefore, prays that the

appointment of respondent no.4 as Junior Library

Assistant may be cancelled and the petitioner may be

ordered to be appointed to the said post.

6. Respondent nos.2 and 3 as well as respondent

no.4 file affidavits-in-reply and strongly opposed the

petition. The sum and substance of the contentions

raised in their replies is that considering the

educational qualification, experience and the marks

obtained by the petitioner and respondent no.4 in the

written test as well as in the interview, respondent

no.4, having scored more marks than that of the

petitioner, came to be selected and appointed to the

post of the Junior Library Assistant.

5 wp3977-2014

7. The learned Counsel for respondent no.4 submits

that neither in the recruitment rules nor in the

advertisement, there was mention that the experience of

working in any library serving more than thousand

members, was required to be gained by the candidate

after possessing the requisite educational

qualification. Therefore, the contention of the

petitioner, that the experience gained by respondent

no.4 prior to obtaining the basic educational

qualification was not liable to be considered, cannot be

accepted.

8. The learned Counsel for respondent nos.2 and 3

also supports the above-stated contention of respondent

no.4. Furthermore, relying on the ratio laid down in the

case of Madras Institute of Development Studies and anr.

Vs. K.Sivasubramaniyan and ors., (2016)1 SCC 454, he

submits that since the petitioner participated in the

selection process without any demur as to the conditions

mentioned in the advertisement about having experience

of five years either prior to or after obtaining the

basic educational qualification, the petitioner cannot

challenge the selection of respondent no.4 on the ground

which is not mentioned in the said advertisement. The

6 wp3977-2014

learned Counsel for respondent nos.2 and 3 as well as

respondent no.4, therefore, submit that the Writ

Petition may be dismissed.

9. As seen from the documents produced on record,

respondent no.4 completed graduation in Arts with

English Subject in 2008, obtained the Degree of Bachelor

of Library Science in April, 2009, Master's degree in

Library Science in the year 2011 and also B.Ed. in 2011.

He worked as a Library Assistant in Dnyanvardhini

Sarvajanik Vachanalay, Deopur, Dhule from 01.04.2004 to

31.10.2006, i.e. for 31 months, and in K.N.P. College of

Veterinary Science, Shirval, Dist. Satara from

14.11.2006 to 10.04.2012, i.e. for 65 months. As against

this, the record shows that the petitioner obtained the

Degree of Bachelor in Science in 1995, Bachelor in

Library Science in 1997, Master's Degree in Arts in

Hindi in 1999 and the Degree of Master in Library

Science in 2002 and that of B.Ed. in 2010. He served as

a Librarian in Navgan Shikshan Sanstha Rajuri's Arts and

Commerce College from 29.12.2003 to 04.08.2006, i.e. for

41 months, and as a Lecturer in Bharat-Bharati High

School, Karegaon, Dist. Parbhani, from 22.06.2007 to

15.09.2009. The total marks obtained by the petitioner

7 wp3977-2014

in the written as well as oral tests out of 100 are

53.20, while that of respondent no.4 are 58.90.

Considering the experience at the credit of respondent

no.4 and the marks obtained by him, he being more

meritorious than the petitioner, came to be selected for

the above-mentioned post.

10. The advertisement produced on record shows that

besides the requisite educational qualification (i.e.

B.Lib.), the candidate must have five years experience

in any Library serving more than thousand members. There

is no mention that such experience has to be obtained by

a candidate after possessing the basic educational

qualification i.e. Graduation in Library Science. The

recruitment rules also do not contain the said

condition. In the absence of such condition, either in

the recruitment rules or in the advertisement, the

petitioner would not be justified in attaching such

condition at his own in respect of the requisite

experience and contend that the experience gained by

respondent no.4 prior to obtaining the requisite

educational qualification is liable to be ignored.

Moreover, he did not challenge the above-mentioned

condition of experience and participated the selection

8 wp3977-2014

process without demur. If he wanted that the experience

to be counted for the above-mentioned post ought to have

been gained after possessing the requisite educational

qualification, he should have challenged the

advertisement on that count. Since he did not challenge

the same, in view of the judgment in the case of Madras

Institute of Development Studies and anr. (supra), he

cannot challenge the said term of the advertisement

after finding himself unsuccessful in the selection

process.

11. In the above circumstances, we do not find any

force in the Writ Petition. It is liable to be

dismissed. In the result, we pass the following order:-

O R D E R

(i) The Writ Petition is dismissed.

            (ii)              Rule is discharged.





            (iii)             No costs.




             [SANGITRAO S. PATIL, J.]                    [S.S. SHINDE, J.]

    kbp/