Tushar S/O Sharangdhar Kawale vs Union Of India Thr. Its Secty. And ...
2017 Latest Caselaw 2052 Bom

WP  7189/14                                           1                            Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                       WRIT PETITION No. 7189/2014
Tushar s/o Sharangdhar Kawale,
Aged about 42 years, Occ.: Accountant,
R/o. 290, Near Ram Mandir,
Chandan Nagar, Nagpur.                                                         PETITIONER


                                     .....VERSUS.....

1.    Union of India,
      Through its Secretary,
      Ministry of Health and Family Welfare,
      New Delhi.
2.    The Directorate General of Health Services,
      Through its Director, 
      Nirman Bhawan, New Delhi - 110 011.
3.    The Joint Director of Health Services
      (Leprosy and Tuberculosis),
      Aarogya Bhawan, Infront of 
      Vishrantwadi Police Station,
      Alandi Road, Vishrantwadi,
      Yerwada, Pune.
4.    Additiona Commissioner-cum-
      President of City Tuberculosis
      Control Society, 
      Nagpur Municipal Corporation,
      Civil Lines, Nagpur.
5.    City Tuberculosis Officer-cum-
      Member Secretary of City 
      Tuberculosis Control Society, 
      Sadar Diagnostic Centre,
      Nagpur Municipal Corporation,
      Civil Lines, Nagpur.
6.    Shri Pravin Wanjari,
      Resident of Plot No.124-A,
      Trust Layout, Pandhrabodi, Nagpur.                                         RESPONDENTS

                       Shri A.S. Dhore, counsel for the petitioner.
                Mrs. M.R. Chandurkar, counsel for the respondent no.1.
     Shri S.M. Ukey, Additional Government Pleader for the respondent nos.2 and 3.
                Mrs. S.S. Jachak, counsel for the respondent nos.4 and 5.

                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                  MRS. SWAPNA  JOSHI, JJ.    

                                       DATE    :            27  TH           APRIL,     2017.


 WP  7189/14                                          2                          Judgment

ORAL JUDGMENT (PER : SMT.VASANTI  A  NAIK, J.)

By this writ petition, the petitioner seeks a direction against

the respondent to absorb the petitioner on the post of full time accountant

in the City Tuberculosis Control Society, Nagpur of the Municipal

Corporation, Nagpur. The petitioner challenges the select list prepared by

the Corporation on 11.12.2014 for appointment on the post of full time

accountant on contract basis.

2. The respondent no.1-Union of India had sponsored a scheme

for Tuberculosis control and the scheme is implemented through the

Nagpur Municipal Corporation. As per the said scheme, certain posts

were created for implementing the programme and one such post was the

post of part time accountant on contract basis. The respondent no.1

decided to appoint a full time accountant on contract basis either by

absorbing the accountant who is working on part time basis or by inviting

applications from the candidates desirous for securing appointment on

the said post. After securing the requisite permission, the Corporation

issued an advertisement inviting the candidates for a Walk-In interview.

The petitioner as well as several other candidates including the

respondent no.6 applied for the said post. The petitioner was not selected

and the Corporation selected the respondent no.6 by granting higher

marks to the respondent no.6 on the basis of the marks secured by the

respondent no.6 at the degree level, i.e. at the B.Com. examination.

WP 7189/14 3 Judgment

According to the petitioner, the allotment of higher marks to the

respondent no.6 on the basis of the marks secured by him at the degree

examination is bad in law as the advertisement does not provide for any

such weightage.

3. Shri Dhore, the learned counsel for the petitioner, submitted

that it was necessary for the respondent-Corporation to have selected the

petitioner on the post of full time accountant on contract basis. It is

submitted that in pursuance of the direction of the Joint Director of

Health Services, dated 06.03.2014, the petitioner was entitled to be

absorbed. It is stated that the respondents, however, wrongfully issued

an advertisement on 04.11.2014 inviting the applications from the

persons desirous of seeking appointment on the post of full time

accountant on contract basis and called them for Walk-In interview. It is

submitted that the action on the part of the respondent of advertising the

post is bad in law as the petitioner was entitled to be absorbed in the said

post. It is further stated that the respondent-Corporation was not justified

in selecting the respondent no.6 for the post of accountant only because

the respondent no.6 had secured higher marks than the petitioner in the

B.Com. examination. It is stated by referring to the advertisement that a

candidate desirous of seeking appointment as full time accountant on

contract basis was required to possess B.Com. degree, the requisite

experience and the candidates with M.B.A. and P.G. Diploma qualification

WP 7189/14 4 Judgment

were entitled to preference. It is submitted that the advertisement does

not prescribe that the marks secured by the candidate at the degree level

would be considered and weightage would be given to the candidates

who had secured higher marks. It is submitted that the respondents have

wrongfully earmarked 80% of the marks for the marks secured at the

degree level, 10% marks for higher qualification, 5% marks for

preferential qualification and the remaining 5% marks for the interview.

The learned counsel states that since the petitioner had secured more

marks than the respondent no.6 at the interview, the petitioner was

entitled to be selected.

4. Mrs.Jachak, the learned counsel for the Corporation, has

supported the action of the Corporation. It is submitted that as per the

Central Tuberculosis Division Guidelines, the essential qualifications were

mentioned in the advertisement. It is submitted that preference was

required to be granted to the candidates who have familiarity with audit

in a recognized society or institution or possessed M.B.A. or P.G. Diploma

in financial management. It is admitted that 80% of the marks were

allotted for the marks secured at the degree level, 10% marks for higher

qualification, 5% marks for preferential qualification and the remaining

5% marks for the interview. It is stated that since the respondent no.6

secured more marks at the degree level, the respondent no.6 was

selected.

WP 7189/14 5 Judgment

5. We are not inclined to accept the submission made on

behalf of the respondent-Corporation that the respondent no.6 was

entitled to be selected as he secured more marks than the petitioner at

the degree level. The advertisement stipulates that a candidate

should possess a B.Com. degree. It is not stated in the advertisement

that weightage as high as 80% would be given to the marks secured

in the B.Com. examination. The advertisement provides that preference

would be given only to such candidates who have familiarity with

audit in a recognized society or institution or the candidates who

possess M.B.A. or P.G. diploma in financial management. It was

necessary for the respondent-Corporation to have considered whether

each of the eligible candidate possessed a B.Com. degree and then

after considering the experience of the candidates in accounting,

preference could have been given by the Corporation to the

candidates who had completed audit in recognized societies or

institutions and/or the candidates that possessed M.B.A. or P.G. Diploma

in financial management. All these aspects ought to have been

considered by the respondent-Corporation while considering the merit

of the candidate. There is nothing in the advertisement or in any

policy of the respondent-Corporation or the policy of the Central

Government, at least no such policy is pointed out to the Court, that

provides that 80% of the marks could be allotted to the candidates on

the basis of the marks secured by them at the degree level, i.e. in the

WP 7189/14 6 Judgment

B.Com. examination. The petitioner has admittedly secured four marks

in the interview as against two and three marks secured by the other

candidates. It was necessary for the respondent-Corporation to have

considered whether any of the candidates had completed the audit in a

recognized society or institution or the candidates possessed M.B.A. or

P.G. diploma in financial management. There is no basis for applying the

aforesaid criteria of awarding 80% marks for the marks secured at the

degree level. In the absence of any basis for awarding marks in the

aforesaid fashion, we find that awarding marks to the candidates by

granting weightage of 80% for the marks secured at the degree level

appears to be extremely arbitrary and unreasonable. Also, the said

criteria is also not mentioned in the advertisement or in any policy of the

respondents.

6. Though we hold that the respondent-Corporation was

not justified in selecting the respondent no.6 for appointment on the

post of full time accountant on contract basis, we are not inclined to

consider the submission made on behalf of the petitioner that the

respondent-Corporation could not have issued an advertisement when

the Joint Director of Health Services had asked the Corporation to

absorb the part time accountant working in the Corporation on contract

basis as a full time accountant on contract basis. It is well settled that

it would be necessary for a party to challenge the advertisement

WP 7189/14 7 Judgment

before participating in the selection process. Once the candidate

participates in the selection process, he/she cannot be permitted to

turn around and challenge the process at a subsequent stage when he or

she is not selected or absorbed. The petitioner did not question the

advertisement issued on 04.11.2014 and participated in the process by

attending the Walk-In interview. The petitioner, therefore, cannot

effectively challenge the advertisement issued by the respondent-

Corporation and seek his absorption on the post of full time

accountant on contract basis. It would be worthwhile to refer to the

judgment of the Hon'ble Supreme Court, reported in (2009) 3 SCC 227

(Amlan Jyoti Borooah Versus State of Assam & Others), (1997) 4 SCC

426 (University of Cochin Versus N.S. Kanjoonjamma & Others) and

(2010) 12 SCC 576 (Manish Kumar Shahi Versus State of Bihar &

Others), in this regard.

7. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The select list prepared by the respondent-Corporation is hereby

set aside. The respondent-Corporation is free to either reconsider the

candidature of the four candidates that had participated in the selection

process and whose names are included in the select list and/or issue a

fresh advertisement for appointment on the post of full time accountant

on contract basis.

WP 7189/14 8 Judgment

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                    JUDGE

APTE