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State Of Maharashtra And Others vs Vishal Apasing Pawara
2016 Latest Caselaw 6170 Bom

Citation : 2016 Latest Caselaw 6170 Bom
Judgement Date : 19 October, 2016

Bombay High Court
State Of Maharashtra And Others vs Vishal Apasing Pawara on 19 October, 2016
Bench: S.V. Gangapurwala
                                                                     WP 5824/15  
      
                                        - 1 -

                         




                                                                        
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD                                      




                                                
                                                  
                             
                       WRIT PETITION NO.5824/2015                             




                                               
    1] State of Maharashtra,
    Through its Secretary,
    Water Resources Department,
    M.S.Mantralaya, Mumbai-32.




                                       
    2] The Chief Engineer,
    (Water Resources),            
    North Maharashtra Region, Nasik.

    3] The Superintending Engineer,
                                 
    (GATE), Central Design
    Organization and Zonal Officer,
    Nasik Zone, Dindori Raod, Nasik.
                                                   ..Petitioners..
                    Versus
      
   



    Vishal S/o Apasing Pawara,
    Age:30 years, Occu.Nil,
    R/o: 52, Tirupati Nagar,
    Near GTP Stop, Deopur
    Dhule, Dist.Dhule.      





                                             ...Respondent.. 
                                                               
                              .....
    Smt.M.A. Deshpande, AGP for petitioners.
    Shri Avinash S. Deshmukh, Advocate for respondent. 





                              .....
      
                                CORAM: S.V. GANGAPURWALA &
                                        K.L. WADANE, JJ. 

DATE: 19.10.2016

ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :

WP 5824/15

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1] Heard learned counsel for the parties. Rule.

Rule made returnable forthwith and with the consent of

learned counsel for the parties, the petition is taken up

for final disposal at this stage.

2] The present petitioners issued an advertisement

bearing No.1/2013 for filling in posts from various

cadres. Fifteen posts were meant for ST category. The

respondent had applied for the post of Civil Engineering

Assistant from ST category. The respondent was selected

securing 100 out of 200 marks. After the present

respondent was selected, the petitioners issued a

communication directing the present respondent to produce

either degree or diploma certificate as prescribed in the

advertisement, failing which, he would be declared

ineligible for the post of Civil Engineering Assistant.

The petitioners did not issue appointment order on the

ground that the present respondent did not possess the

necessary qualification as laid down in the

advertisement. Aggrieved thereby, the present respondent

filed Original Application No.282/2014 before the

Maharashtra Administrative Tribunal, Aurangabad. The

Maharashtra Administrative Tribunal allowed the said

WP 5824/15

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application directing the present petitioners to hold the

present respondent eligible for the post of Civil

Engineering Assistant. The petitioners have assailed the

said judgment in the present writ petition.

3] The learned AGP submits that the Tribunal

misdirected itself while considering the eligibility of

the present respondent de hors the eligibility mentioned

in the advertisement. The advertisement specifically

required that a person applying for the post of Civil

Engineering Assistant should possess either diploma from

State Technical Institute or B.E. It was necessary for

the person applying to possess either degree or diploma

certificate. The respondent was possessing a certificate

of construction technology and not a diploma or degree as

was required. The said advertisement was in consonance

with the Government resolution issued by the State on

12.8.2013. The learned AGP further states that when the

Government resolution was holding the field and the terms

of the advertisement also were abundantly clear, the

respondent having participated in the selection process

pursuant to the advertisement could not thereafter turn

around and contend that the qualification required as per

WP 5824/15

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the advertisement is improper and not as per Rules. A

person who has participated in the selection process

cannot subsequently challenge the said advertisement.

The learned AGP relies on the judgment of the Apex Court

in the case of Ramana Dayaram Shetty v. International

Airport Authority of India reported in (1979) 3 SCC 489.

The learned AGP further submits that even the application

submitted by the respondent pursuant to the advertisement

was misleading. The respondent in the application

represented that he possesses the diploma when in fact he

does not possess. If he would have stated his real

qualification, the respondent would not have even been

held eligible to participate in the selection process.

4] Learned counsel for the respondent - original

applicant submits that the advertisement issued laying

down qualification as degree or diploma was not in

consonance with the Rules prevailing. As per Rules, the

certificate, which the respondent was possessing, was the

required qualification and if the advertisement

prescribed some other qualification than the one required

as per the Rules, then the qualification required as per

the Rules will have to be read into the said

WP 5824/15

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advertisement. The learned counsel relies on the

judgment of the Apex Court in the case of Indian

Institute of Technology & another v. Paras Nath Tiwari &

others reported in (2006) 9 SCC 670. The learned counsel

further submits that the State cannot issue resolution

contrary to the rules. For the said purpose, he relies

on the judgment of the Apex Court in the case of Punjab

Water Supply and Sewerage Board v. Ranjodh Singh & others

reported in AIR 2007 Supreme Court 1082. The learned

counsel further submits that after having participated in

the selection process, the respondent was selected.

5] Once having found that the respondent was

possessing necessary qualification as required by the

Rules, then there was no impediment to issue appointment

order to the present respondent. The Tribunal has not

committed any error in passing the impugned order.

6] With the assistance of the learned counsel for

the respective parties, we have gone through the judgment

delivered by the Tribunal so also have considered various

Government resolutions and the Rules.

7] There cannot be any dispute with the proposition

that the executive instructions issued in the shape of

WP 5824/15

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Government resolutions cannot override the Rules framed,

which have a statutory flavour. The Rules as existing on

the date when the advertisement was issued did not

mandate a candidate applying for the post of Civil

Engineering Assistant to possess a degree or diploma.

Even a person possessing a certificate of Construction

Supervisor was qualified on the said date to apply.

However, the advertisement prescribed a higher

qualification that of diploma or degree. No doubt, the

respondent had participated in the selection process

pursuant to the advertisement and did not challenge the

terms of the advertisement prior to participating in the

selection process. We have also gone through the

judgment of the Apex Court in the case of Indian

Institute of Technology, referred to supra, which states

that if the advertisement had prescribed for some

different criteria than the one laid down in the Rules,

the criteria laid down in the Rules will have to be read

down in the advertisement.

8] We would have considered the case of the

respondent in this regard, however, the learned AGP has

placed on record the application filed by the present

WP 5824/15

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respondent pursuant to the advertisement. In the said

application, the respondent had represented that he

possesses the diploma certificate and as per the

advertisement, he is qualified. It is fairly stated by

the learned counsel for the respondent that the

respondent does not possess the said qualification. In

case, the respondent had submitted the genuine

qualification, which he possessed in the application, he

would not have been called for participating in the

selection process. In the light of this fact, it would

not be possible to uphold the judgment of the Tribunal.

Naturally the other persons who were not possessing the

diploma or degree were precluded from participating in

the selection process for the post of Civil Engineering

Assistant in view of the terms laid down in the

advertisement and the respondent cannot take the

advantage of his own wrong i.e. of a wrong statement of

fact mentioned in the application suggesting that he is

possessing the diploma certificate.

9] In view of above, it would be appropriate to

adjust the equities as subsequently some changes must

have been undergone by executive instructions or the

WP 5824/15

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Rules. It would not now be proper to direct re-

advertisement of all the posts as other persons are

appointed pursuant to the said advertisement and only two

posts from ST category are vacant as per the instructions

of the learned AGP. To adjust the equities, it would be

appropriate to direct re-advertisement of these two posts

reserved for ST category.

10] In the result, we pass the following order.

ig O R D E R

a] The impugned judgment and order dated

3.12.2014 passed by the Maharashtra

Administrative Tribunal in Original Application

No.282/2014 is quashed and set aside to the

extent of directions contained in Clauses

(iii) and (iv) and also quashing the

communication dated 13.3.2014.

b] The petitioners shall re-advertise the two

posts from ST category of Civil Engineering

Assistant and shall call for the applications

from the persons possessing the qualification

as was required as per the Rules when the

earlier advertisement was issued. The said

WP 5824/15

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process be done expeditiously.

c] Rule is made absolute in above terms. No

costs.

(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)

ndk/c1910165.doc

 
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