Bombay High Court
Prashant S/O Bhagwan Moon And ... vs Poonam Shridhar Naik on 25 October, 2016
Bench: V.A. Naik
wp1483.15.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1483/2015
PETITIONERS: 1. Prashant s/o Bhagwan Moon
Aged about 27 years, Occupation - Student,
R/o Ambika Nagar, Near School No.5,
Patipura, Yavatmal.
2. Suyog s/o Pramod Mhaiskar,
aged about 27 years, Occupation - Student,
ig r/o Tirupati Nagar, Duplex No.4,
Nalwadi, Wardha.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through
its Secretary, Ministry of Rural Development,
Mantralaya, Mumbai - 32.
2. The State of Maharashtra, through its
Director of Vocational Education and Technical
Training, through Director, Mantralaya,
Mumbai - 32.
3. Selection Committee, Zilla Parishad,
through its Chief Executive Officer,
Wardha.
4. Manoj Harichandra Zodape,
Age - Major, r/o Lasikari Baugh
Circle No.17/23 Post Ambedkar
Ward, Distt. Nagpur.
5. Krishnakant Devidas Thakre,
Age - Major, r/o Burade Layout Near
Deshmukh Ward No.1, Distt. Wardha.
6. Shubham Rameshrao Kohale,
Age Major, r/o Deshpande Layout,
Nalwadi, Distt. Wardha.
::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:45:35 :::
wp1483.15.odt
2
7. Komalkumar Dwarkadas Taksande,
Age - Major,r/o Sant Tukdoji Ward
Pradnya Nagar, Hinganghat, Dist. Wardha.
8. Vishal Shrawanji Thool,
Age - Major, r/o Pradnya Nagar Sant
Tukdoji Ward, Nandori Road, Hinganghat,
Distt. Wardha.
9. Ranjeet Ashok Nitnaware
Age Major, r/o At Post Dahegaon,
Tah. Kalmeshwar, Po. Fetri, Distt. Nagpur.
ig 10. Shradha Haribhau Chaudhary,
age - Major, R/o Vilas Nagar Chausla
Road, Yavatmal, Construction Department
Zilla Parishad, Wardha.
[Restored vide Court's Order Dt. 14.10.16.
Added as per Court's order dt. 14.10.16.]
11. Apoorva Haribhau Deotare,
Age - Major, r/o Ajit-11, Govt.
Accommodation, Kanta Nagar, Kamp Road,
Amravati.
12. Yogita Vilasrao Ughade,
Age - Major, R/o 83, Siddheshwar Nagar,
Chausla Road, Yavatmal.
[Added as per Court's order Dt. 14.10.16]
13. Poonam Shridhar Naik
Age - Major, R/o Nisarga Nagari New
Ebiya Colony, Nalsadi, Dist. Wardha.
14. Archana Sharadrao Chande,
Age - Major, r/o 21 Rajaswa Colony,
Jay Vijay Chowk, Badhapur Road,
Yavatmal, Zilla Parishad Deputy Engineer
Construction Department, Arvi, Distt. Wardha.
[Added as per Court's order Dt. 14.10.16]
::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:45:35 :::
wp1483.15.odt
3
-----------------------------------------------------------------------------------------------------
Shri C.V. Jagdale, Advocate for petitioners
Shri K.L. Dharmadhikari, AGP for respondent nos.1 and 2
Shri P.V. Thakare, Advocate for respondent no.3
Shri V.M. Gadkari, Advocate for respondent nos.5,7 to 14
-----------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK, AND
KUM. INDIRA JAIN, JJ.
DATE : 25.10.2016
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)
Rule. Rule made returnable forthwith. The petition is heard
finally at the stage of admission as the notice for final disposal was issued
to the respondents and all the respondents are duly served.
By this petition, the petitioners have sought a declaration
that the act on the part of the respondent - Zilla Parishad to grant
appointment to the candidates as per the select list, dated 3.2.2015 is
illegal and the selection and appointment of the candidates that are
ineligible should be quashed and set aside. A direction is sought by the
petitioners against the respondents to prepare a fresh select list that
includes the names of those candidates that possess the basic qualification
of ITI Course, Architectural Draftsmanship Certificate, Construction
Supervisor Course or a Draftsman Certificate.
The respondent - Zilla Parishad issued an advertisement on
22.8.2014 inviting applications for appointments on various posts
wp1483.15.odt
including the posts of Civil Engineering Assistants. By the said
advertisement, 18 posts of Civil Engineering Assistants were advertised
and four posts were earmarked for the Scheduled Castes. The petitioners
had applied for the posts that were earmarked for the Scheduled Castes.
As per the advertisement, the minimum basic educational qualification for
appointment on the post of Civil Engineering Assistant was a Secondary
School Certificate and a certificate either as an Agricultural Draftsman,
Construction Supervisor or a Draftsman. The petitioner no.1 possesses the
certificate as a Construction Supervisor and has also passed the
Secondary School Certificate Examination. We are not concerned with the
petitioner no.2 in this writ petition, as according to the Counsel for the
petitioners, the petitioner no.2 is not desirous of prosecuting the writ
petition and has given up his claim. Though the minimum qualification
prescribed by the said advertisement was Secondary School Certificate
and a certificate either in Agricultural Draftsmanship, Construction
Supervisor or a Draftsman, according to the petitioner, most of the
selected candidates do not possess this minimum qualification. According
to the petitioner, some of the candidates that are selected and appointed
as per the select list, dated 3.2.2015, only possess a Bachelor's Degree in
Engineering. Since the petitioner's candidature was not considered for
appointment despite his eligibility and since the Zilla Parishad has
wp1483.15.odt
considered the ineligible candidates that did not possess the minimum
required educational qualifications, the select list dated 3.2.2015 is
challenged.
Shri Jagdale, the learned Counsel for the petitioners
submitted that as per the advertisement, dated 22.8.2014, the minimum
qualification for appointment on the post of Civil Engineering Assistant is
a Secondary School Certificate and a certificate as an Agricultural
Draftsman or Construction Supervisor or a Draftsman. It is submitted that
several respondents that are selected and appointed on the posts of Civil
Engineering Assistants do not possess the minimum required educational
qualification and do not possess a certificate in Agricultural
Draftsmanship or Construction Supervisor or a draftsman. It is submitted
that merely because some of the respondents possess a Bachelor's Degree
in Engineering they could not have been considered, if they did not
possess the minimum qualifications, as stated in the advertisement. It is
submitted that the respondent - Zilla Parishad was not justified in
changing the rules of the game after the advertisement was issued. It is
stated that the entire select list is liable to be quashed and set aside and it
would be necessary to direct the Zilla Parishad to prepare a fresh select
list by including the names of only eligible candidates, who possess the
minimum qualifications, as mentioned in the advertisement.
wp1483.15.odt
Shri Thakare, the learned Counsel for the Zilla Parishad
does not dispute that the advertisement prescribes the minimum
educational qualifications to be a Secondary School Certificate and a
certificate course in Architectural Draftsmanship, Construction Supervisor
or a Draftsman. It is submitted that the State Government has by a
Government Resolution, dated 3.12.2015 permitted all the Zilla Parishads
to appoint the Engineering Degree Holders on the posts of Civil
Engineering Assistants. It is submitted that since some of the respondents
possess higher qualification than that was prescribed by the
advertisement, their names were included in the select list.
Shri Gadkari, the learned Counsel for most of the
respondents - appointed candidates has supported the action on the part
of the Zilla Parishad. It is stated that some of the respondents possess the
minimum educational qualification and though some of the respondents
do not possess the minimum educational qualifications as prescribed by
the advertisement, they possess a higher qualification, i.e., a Bachelor's
Degree in Engineering. It is stated that since some of the respondents are
highly qualified, their appointments need not be interfered with as they
are working on the posts for some time.
Shri Dharmadhikari, the learned Assistant Government
Pleader appearing for the State Government had nothing much to say in
wp1483.15.odt
the matter. It is stated that the Zilla Parishad is the contesting respondent
and it would be for the Zilla Parishad to support their action.
On hearing the learned Counsel for the parties and on a
perusal of the advertisement and the affidavit-in-reply filed on behalf of
the respondents, it appears that the Zilla Parishad was not justified in
permitting the candidates with a Bachelor's Degree in Engineering to
participate in the selection process for appointment on the posts of Civil
Engineering Assistants, though they did not possess the minimum
qualifications, i.e., a certificate in Architectural Draftsmanship or
Construction Supervisor or a Draftsman. The advertisement, dated
22.8.2014 clearly provides for the minimum qualifications that need to be
possessed by a candidate before applying for a post of Civil Engineering
Assistant. The minimum qualification is a Secondary School Certificate
and a certificate in either Architectural Draftsmanship, Construction
Supervisor or a Draftsman. The petitioner no.1 admittedly possesses a
certificate as a Construction Supervisor. Some of the respondents, that are
appointed by the respondent - Zilla Prishad on the posts of Civil
Engineering Assistants, do not possess the minimum required
qualifications, as they do not possess a certificate either as Architectural
Draftsman, Construction Supervisor or a Draftsman. If some of the
candidates did not possess the minimum required qualifications, the
wp1483.15.odt
respondent - Zilla Parishad could not have permitted those candidates to
participate in the selection process. The Zilla Parishad had not only
permitted the ineligible candidates to participate in the selection process,
but had also included their names in the select list and appointed them on
the posts of Civil Engineering Assistants only because they possessed the
higher qualification, i.e., a Bachelor's Degree in Engineering. A Bachelor's
Degree in Engineering was not a qualification prescribed by the
advertisement for the post of Civil Engineering Assistant. This
qualification was the basic or minimum qualification for the post of
Junior Engineer, as advertised by the respondent - Zilla Parishad. Though
the Zilla Parishad may be right in considering the Degree Holders with
higher qualifications for appointment on the posts of Civil Engineering
Assistants, but it was necessary for the Zilla Parishad to first ensure that
the Degree Holders also possessed the minimum qualification of passing a
certificate course in Agricultural Draftsman or Construction Supervisor or
a Draftsman. Since the select list, dated 3.2.2015 includes the names of
the candidates who do not possess the minimum required qualifications,
the select list is liable to be quashed and set aside. It would be necessary
in the circumstances of the case to direct the respondent - Zilla Parishad
to prepare a fresh select list and include the names of candidates that
possess the minimum required qualifications as prescribed by the
wp1483.15.odt
advertisement. Since we find that the preparation of the select list dated
3.2.2015 is bad in law and the same does not adhere to the requirements,
as per the advertisement dated 22.8.2014, the same is liable to be set
aside. While holding so, we are not inclined to accept the submission
made on behalf of the Zilla Parishad that since the Government has now
permitted the appointments of the Degree Holder Engineers on the posts
of Civil Engineering Assistants by the Government Resolution, dated
3.12.2015, the select list may not be set aside. The Resolution of the State
Government would be applicable for the advertisements that would be
issued by the Zilla Parishad in future, in consequence with the policy of
the State Government, as laid down in the said Government Resolution.
The Resolution would not apply to this case as it was issued after the
respondents were selected and appointed on the posts of Civil
Engineering Assistants. Also, we find that if the Zilla Parishad would have
mentioned in the advertisement that a candidate possessing a Bachelor's
Degree in Engineering could be considered even if he does not possess the
minimum qualifications, as prescribed in the advertisement, the case
would have been different. The judgment, dated 4.7.2011 in Writ Petition
No.5266/2008 and others and relied on by the Counsel for the
respondents cannot be made applicable to the facts of this case.
wp1483.15.odt
Hence, for the reasons aforesaid, the writ petition is partly
allowed. The select list, dated 3.2.2015 is quashed and set aside. The Zilla
Parishad is directed to prepare a fresh select list by including the names
of only such candidates that possess the minimum required qualifications,
as per the advertisement. While preparing the fresh select list it would not
be necessary for the Zilla Parishad to remove the eligible candidates that
have been appointed on the posts of Civil Engineering Assistants, as per
the select list, dated 3.2.2015, if they are otherwise entitled for
appointment. The entire exercise should be completed by the respondent
no.3 within two months.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
