Mr. Sachin Vishwas Kamble vs Maharashtra State Road Transport ...
2017 Latest Caselaw 10026 Bom

Ladda 
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              CIVIL  APPELLATE  JURISDICTION

                              WRIT PETITION No. 7365 of 2013.

             1        Sachin Vishwas Kamble,                            PETITIONER 
                      Plot No. 37, Ambedkar Nagar,
                      Nagaon, Tahsil Hathkangagle,
                      District Kolhapur-416 122. 
                                        VERSUS 
             1        Maharashtra   State   Road   Transport 
                      Corporation   Limited   having   its   head 
                      office   at   Mumbai   Central   Depot. 
                      Mumbai Central, Mumbai.                      RESPONDENTS

             2        Maharashtra   Knowledge   Corporation 
                      Limited, ICC Trade Tower, A Wing, 5 th 
                      Floor,
                      Senapati   Bapat   Marg,   Shivaji   Nagar, 
                      Pune. 

             3        Sunil Prakash Belekar, 
                      at Bele, Bhutache Post Kurukli, Taluka 
                      Karveer,   District   Kolhapur-416   001, 
                      Maharashtra.
             4        Amol Ramesh Mahabodhi,
                      Siddharth Nagar, at present Vadgaon, 
                      Taluka Hatkanangale, Dist. Kolhapur - 
                      416 112, Maharashtra. 
                      Appearance:-
                      Mr. Neel  G. Helekar, Advocate for the 
                      Petitioner.


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                  Mr.   Chandan   Salgaonkar   for 
                 Respondent No.2.

                 Mr. Gopal Krishna Shivaram Hegde for 
                 Respondent No.1. 

                         CORAM:-  S.C. DHARMADHIKARI  &
                                     SMT. BHARATI H. DANGRE, JJ.
                                                     th
                          RESERVED ON:-           27    November, 2017.
                                                                       
                                               nd  December, 2017.
                          PRONOUNCED ON:-  22                      


JUDGMENT (PER: SMT. BHARATI, H. DANGRE,J)

1 Rule. Respondents waive service. By consent, Rule is made

returnable forthwith and the petition is taken up for hearing and final

disposal. The petitioner has approached this Court with a grievance

that in a selection process conducted by respondent No.2 for filling up

the post on the establishment of respondent no.1, the name of the

petitioner was placed in the merit list prepared for the post of

Assistant Painter, but no appointment order was issued in his favour

and on the other hand respondent no. 3 and 4 came to be appointed to

the post of Assistant Painter in the category to which the petitioner

belonged namely the Scheduled Caste Category.

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2) The undisputed facts giving rise to the petition can be

simply stated as below:-

Respondent No.1 is the Maharashtra State Road Transport

Corporation (MSRTC for short) which initiated a process for filling up

the post of Assistant Painter through an advertisement issued for filling

up various technical posts like motor mechanic, wireman, electrician,

Painter etc. In the present petition, we are concerned with the post of

Assistant painter. The petitioner claims to be belonging to Scheduled

Caste and he submitted his on line application in pursuance of an

advertisement since he possessed the requisite educational

qualification for the said post. With regard to the details of the

educational qualification, since it is not in dispute that the petitioner

was educationally qualified for being considered for appointment to

the said post for which he applied. Respondent No.1 appointed

respondent No.2 Maharashtra Knowledge Corporation Ltd (MKCL for

short) to conduct the entire procedure of selection of candidates on

the posts advertised for its establishment. The petitioner was called

for written examination and the result-sheet reflected that the

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petitioner had secured 60 out of 100 marks and the petitioner has

placed on record the extract of the result sheet which was displayed on

the website of respondent No.2-Corporation declaring him to have

passed and securing 60 marks as against the post of Assistant Junior

Painter. According to the petitioner, there was no other Scheduled

Caste Candidate who has applied for the said post of Assistant Junior

Painter and the petitioner has placed on record a collective merit list

prepared by respondent No.2 to make such an assertion. It is the case

of the petitioner that he was also called for verification of documents

and his documents were verified. The petitioner's contention is that

he kept waiting for an order of appointment but he was shocked and

surprised when he came to know that respondent no.3 and 4 were

declared selected and when he collected the information it was

revealed by him that respondent No.3 had secured 53 marks and

respondent No.4 had secured 45 marks, which are undisputedly lesser

than the marks scored by the petitioner. The petitioner preferred

representations to respondent No. 1 and 2 agitating his grievance and

causing them to rectify the error committed by them in selecting

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respondent No. 3 and 4, which were according to the petitioner was

not attended and this constrained the petitioner to approach this Court

by filing the present writ petition.

3) In the writ petition, the petitioner makes representation

that there is serious lacuna in the selection process conducted by

respondent No. 1 and 2. He contends that when he was already

selected and passed the examination and stood first in the list of

Scheduled Caste, respondent No. 1 and 2 ought not to have selected

respondent No. 3 and 4 and there is no justification coming from

respondent No. 1 and 2 as to why the petitioner has been deprived of

his right of selection in-spite of his better performance in the written

examination as against respondent No. 3 and 4 in the Scheduled Caste

category. The petitioner has therefore prayed for quashing and setting

aside the appointment order of respondent No. 3 and 4 and has prayed

for direction to respondent no. 1 and 2 to consider the claim of the

petitioner on merit and appoint him on the post of Asstt. Painter.

4) In response to the writ petition, respondent No.1 so also

respondent No.2 have filed their affidavit responding to the

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contentions raised in the petition. As far as respondent No.1 is

concerned, in the affidavit filed by the Personal Officer of the

Corporation on 6/4/2015, it is stated that respondent No.1 had issued

an advertisement and in the advertisement 35 was set out as passing

grade. It is stated in the affidavit that 50% posts were reserved for

General Industrial Training Institute (ITI) candidates and 50% posts

are reserved for candidates who have completed job training in State

Transport Workshop and are holding ITI certificate for Trade

Apprentice i.e. who have completed one year training in MSRTC

Workshop and such candidates belong to 'Apprentice category'. The

affidavit further states that it had appointed respondent No.2 MKCL to

conduct the selection process. It is further stated that initially merit

list was issued by respondent No.2 including the name of the

petitioner, but it was realized by respondent No.1 much has not

considered the reservation of 50% of the posts in favour of ITI

candidates who have completed training as aforesaid in the MSRTC

Workshop i.e. Apprentice Category and, therefore, respondent No.1

made a request to respondent No.2 to revise the said merit list by

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taking into consideration said reservation of 50%. Respondent No.2

accordingly corrected the merit list.

5) Respondent No.2 has also placed on record an affidavit, in

which it is stated that as per policy of respondent no.1 as contained in

GR No. RP/EMPCL/Astha/UR/201-E/3739 dated 10/9/2009, 50% of

the posts are reserved for General ITI Trainee candidates and 50%

posts are reserved for candidates who have completed job training in

MSRTC Workshop and holding ITI certificate for Trainee Apprentice

Candidates. It is stated that the candidates who have completed

Apprenticeship would get benefit of 50% reservation in the same

Department. Two Groups namely ITI and R.P. candidates who have

completed job training in State Transport would be called called

independently in the ratio of 1:5 and after the reservation in 50%

posts, the candidates would be selected according to social and

horizontal reservation. It is stated further that pre reference is given to

the candidates who have completed one year training with the MSRTC

and who are included in the "Apprentice Category", versus the

candidates who have undergone training with ITI and worked

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elsewhere i.e. "non-apprentice category". A copy of Government

Circular dated 10/9/2009 is also placed on record along with the

affidavit.

6) We have heard learned Advocate appearing for the

petitioner and Shri Neel G. Helekar, Advocate for the Petitioner, Mr.

Gopal Krishna Shivaram Hegde for Respondent No.1 and Mr. Chandan

Salgaonkar for Respondent No.2.

7) With the assistance of the learned counsel, we have

perused the writ petition along with its annexures and also the

affidavits placed on record along with the annexures. The short

controversy revolves around the reservation criteria prescribed by

respondent No.1 and the reservation in favour of the "Apprentice

Category." Reliance is placed on Circular issued by Respondent No.1

Corporation on 10/9/2009 and it is gainful to refer to the same at this

stage.

Circular No. 18/2009 Subject : About keeping posts under

reservation while recurring Assistant (Junior) posts in

regular recruitment of I.T.I. Trained Workshop trainee

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candidates of R.P. Corporation.

The decision has been taken as per the Corporation Resolution No. 2009:02:

15 dated 17/2/2009 that for the post of Assistant (Junior) posts recruitment 50% posts of available posts should be reserved for the general I.T.I. Certificate holder candidates and 50% posts in the R.P.

Workshop for the candidates who have completed apprenticeship and holding I.T.I. Certificate. For the enforcement of this decision the following instructions have been given.

1) The 50% posts should be reserved from the available posts for the Assistant (Junior) category posts for the general I.T.I. Trained candidates and 50% posts should be kept reserved for the candidates who have completed training in the R.P.

Workshop and holding I.T.I. Certificate only for the Trade Apprentice candidates.

2) The provision of giving 3 extra marks in the interview for the recruitment of the candidates of Assistant (Junior) category posts.

3) It is necessary for the candidates to submit application according to the advertisement by the candidates who have completed trainee apprenticeship in which department he has completed training.

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That is in which department the candidate has completed apprenticeship will get benefit of 50% reservation in the same department.

4) 2 groups should be called for the interview in 1:5 ratio.

5. While calling for the interview of these two groups should be called independently. There ratio will be 1:5.

6) According to the prevailing provisions while calling candidates for the interview for deciding 1:5 ratio in two groups the basis should be observed on the merits of marks obtained in the I.T.I examination.

7) For calling the candidates for interview in 1:5 ratio if sufficient number of trained candidates are not available then in that ratio general I.T.I. Candidates can be called for interview.

8) As mentioned above after reservation of 50% posts while electing finally the candidates should be selected according to social and horizontal reservation.

9) While keeping reservation of 50% posts for the candidates who have completed apprenticeship if the sufficient candidates are not available then the said posts cannot be carry forward. Then such

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posts should be filed from the general I.T.I. Trained candidates in the said recruitment procedure. As well as if the more candidates were available for interview for the 50% reserve posts then firstly number of 50% reservation posts should be filed according to the merits of the candidates and remaining candidates from group 1 candidates from the general I.T.I.

Candidates according to their merits.

10) After interview while selecting the candidates as per the prevailing provisions 75% wait-age should be given to the marks obtained in the I.T.I. Examination and marks obtained in the interview should be given 25% wait-age for selection.

11) The independent list should be prepared of the candidates who have completed apprenticeship and general I.T.I. Category candidates should be selected for the interview.

Perusal of the said Circular reveals that 50% posts of

Assistant Painter (Junior) are to be reserved for General ITI Certificate

holder and 50% posts are reserved for those candidates who have

completed apprenticeship and holding ITI certificate. The Circular

reflects that while calling the candidates for interview of these two

groups, process would be independently carried out and the ratio

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prescribed is 1:5. The Circular also mentions that after reservation of

50% posts while electing finally the candidates should be selected by

applying social and horizontal reservation criteria. It is also imperative

that the independent list should be prepared of the candidates who

have completed the apprenticeship and General ITI category who are

to be selected.

Perusal of the affidavit and the procedure adopted by respondent

No.2 and 3 reveals that respondent No.3 and 4 belong to the

'apprentice category' and they have applied for assistant junior painter

post from Ratnagiri division from S.C. Apprentice Category whereas

the petitioner had applied for the said post of Assistant Painter from

Ratnagiri division from SC 'non-apprentice category'. Thus, the

petitioner and respondent 3 and 4 belong to two different categories

and are to be judged in separate categories. The petitioner is only

aware of the fact that he belongs to SC category and he states that he

had secured 60 marks in the written examination. He would further

contend that respondent 3 and 4 have secured 53 and 44 marks

respectively. This is not disputed by the respondents. However, there is

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sufficient force in the contention of respondents that the petitioner's

candidature was considered in 50% category of 'non-apprentice

category'. Whereas respondent no.3 and 4's candidature was

considered from the 'apprentice category' and therefore there is no

comparison of their merit and scores between the petitioner on one

hand and respondent no. 3 and 4 on the other hand. The respondents

have admitted in their affidavit that initially unmindful of the said

reservation prescribed as per the policy of respondent no.1 in its

Circular dated 10/9/2009, a common merit list was prepared and the

petitioner was placed above respondent No. 3 and 4 with 60 marks

him since then they had less marks than the petitioner. However, on

revising that merit list which was prepared without adhering to the

policy of respondent no.1 contained in Circular dated 10/9/2009

prescribing demarcation in "non-apprentice" and "apprenticeship

category" and preparing separate merit list for both categories and

keeping them distinct respondent no.2 again revised the merit list and

the petitioner came to be placed in a separate "non-apprenticeship

category." The petitioner being placed in a separate category of non-

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apprentice of could not qualify as there were other candidates who

had obtained more marks than him whereas respondent no. 3 and 4

who were placed in the 'apprentice category' could make up to the said

post as the performance of the candidates in the said category justified

their selection on the basis of marks obtained by the said candidates.

Perusal of the application form of respondent no. 3 and 4 which has

been placed on record by respondent no.2 along with their affidavit

reflect that respondent no.3 Sunil Belekar has work experience with

MSRTC, Kolhapur in the capacity of painter from 2/10/07 to 1/10/08

and respondent no.4 has work experience as apprentice from

15/10/99 to 14/10/2000. The petitioner admittedly lacks the said

experience and therefore was not considered for the 'apprentice

category'. We find sufficient force in the stand of the respondents in

not considering the petitioner to be selected for the post of Asstt.

Junior Painter and we do not find any fault in the selection of

respondent no. 3 and 4.

In the light of aforesaid discussion, we are of the opinion

that there is no merit in the contention of the petitioner and the

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selection and appointment of respondent no. 3 and 4 cannot be said to

be suffering from any illegality or arbitrariness.

The writ petition is dismissed. No order as to costs.

[SMT.BHARATI H. DANGRE,J.] [S.C. DHARMADHIKARI, J.]

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