Vinod Dadasaheb Dhore And Anr vs The Secretary Maharashtra Public ...
2017 Latest Caselaw 9825 Bom

                                                              Civil WP 11970-17.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 11970 OF 2017

       Vinod Dadasaheb Dhore & anr.                         ..Petitioners

                        Vs.

       The Secretary Maharashtra Public
       Service Commission, Mumbai & ors.                    ..Respondents.

                                        ...........
       Mr.   Rajiv   Chavan,   Senior   Advocate   along   with   Ms.   Priyanka 
       Chavan   i/by  Ms.  Aarti A. Patil, Advocate for the petitioner in 
       W.P.No.11970/17.

       Mr. A.B. Vagyani - G.P. along with Mr. O.M. Kulkarni, AAGP for 
       the State/respondent Nos. 2 to 4.

       Mr. Gunratan Sadavarte along with Ms. Jayshree Patil, Advocate 
       for respondent Nos. 5 to 41.

       Mr. Nitin P. Dalvi, Advocate for respondent No.1/M.P.S.C.
                                     ...........


                        CORAM : SMT. V.K. TAHILRAMANI ACTING C.J.  
                                       AND M.S.KARNIK, J.

RESERVED ON : 5th DECEMBER, 2017.

PRONOUNCED ON : 20th DECEMBER, 2017.

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ORDER (PER : M.S. KARNIK, J.) :-

Rule. Rule heard forthwith by consent of parties.

2. By this petition filed under Article 226 and 227 of

the Constitution of India, the challenge of the petitioners is to an

order dated 2nd November, 2017 passed by the Maharashtra

Administrative Tribunal (hereinafter referred to as "the

Tribunal" for short) in O.A.No.524 of 2016 with O.A.No.841 of

2017.

3. The petitioners filed O.A.No.841 of 2017 before the

Tribunal. The petitioners are working on the post of Police

Constables in the Police Force of the Government of

Maharashtra. The respondent No.1 - The Maharashtra Public

Service Commission ("MPSC" for short) conducts the "Limited

Competitive Departmental Examination" (hereinafter referred to

as "the said examination") for the post of Police Sub-Inspector.

Through the channel of the said examination the petitioners are

seeking entry in the higher post i.e. Police Sub-Inspector.

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Having applied pursuant to the advertisement and upon passing

the written examination, the petitioners are included in the

select list of the Open merit category candidates. The grievance

of the petitioners is that the select list also includes those

candidates (viz. respondent Nos. 5 to 41) who have availed

concession in payment of examination fees and also applied with

the claim that their names would be considered only in the

category or seats reserved for concerned reserved class of

citizens and not Open merit category. It is the contention of the

petitioners that the respondent Nos. 5 to 41 had applied for the

seats reserved for the class of citizens to which they belong and

that they have availed concession in payment of examination

fees. They had declared that they intended to be considered only

against reserved seats. They also had knowledge of MPSC's

standing orders and uniform policy/practice which is duly

notified that they cannot be considered for appointment on open

merit competition category. The prayer of the petitioners in O.A.,

therefore, is that the respondent Nos.5 to 41 be de-listed from

Open merit category and should be listed in the category meant

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for reservation of class of citizens to which they belong.

4. The Tribunal by the impugned judgment and order

was pleased to dismiss the original application.

5. Learned Senior Counsel Shri Rajiv Chavan appearing

for the petitioners assailing the order of the Tribunal, invited our

attention to the policy of the MPSC in respect of the

consideration of Backward Class candidates availing concession

for migration to the Open merit category post. Learned Senior

Counsel further invited our attention to the communication

dated 13th August, 2013 whereby the UPSC had informed the

respondent No.1- MPSC that a reserved category of candidate

who avails the concession or relaxation in age, fee or any

eligibility criteria is not recommended against a general category

post. He also invited our attention to the Minutes of the Meeting

of the 16th National Conference of Chairpersons of State Public

Service Commissions wherein it was explained that if a reserved

category candidate avails any relaxation of age, number of

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attempts, etc., he may be considered only for the reserved post.

The Minutes further go to record that if the reserved category

candidate, who has not availed of any relaxation and also

qualifies as per general eligibility, in that case only he is

considered for the Open merit category post as meritorious

reserved category candidate.

6. Learned Senior Counsel also invited our attention to

the standing order dated 14th July, 2014 issued by the MPSC

thereby pointing out that it is clearly mentioned that those

reserved category candidates who have availed concession or

relaxation in respect of the age, examination fee or

qualifications prescribed, such candidates cannot be considered

for the Open category post as meritorious reserved candidates.

He also invited our attention to the portion in the standing order

which provides that in all examinations held after 14 th July,

2014, if the reserved category candidate has availed of the

concession of age relaxation or examination fee or any other

concession regarding eligibility criteria, such candidates will not

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be considered as against the Open merit category post.

7. Learned Senior Counsel placed much emphasis on

the Rules called as Maharashtra Public Service Commission

(Rules of Procedure) 2014 (hereinafter referred to as "the Rules

of 2014"). He contends that the MPSC made the said rules in

exercise of the functions as stipulated in Article 320 of the

Constitution of India and the said Rules of 2014 have been

adopted to regulate the internal procedure of work of MPSC.

The material portion of sub-rule 3 of Rule 4 reads thus :-

"4(3). Any case in which a decision is required to be taken regarding framing of Schemes for holding a Competitive Examination for Recruitment or Departmental Examinations or their modification."

8. Our attention is also invited to Rule 18 of the said

Rules which reads thus :-

"18. Matters not regulated. - In dealing with the matters for which no provision is made in these Rules, the Commission may regulate the proceeding in such a manner as they deem fit."

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9. The proclamation issued by the MPSC dated 19th and

25th September, 2014 reiterated this position.

10. The respondents-State of Maharashtra by

Government Resolution dated 27th June, 2016 initiated the

process for appointment of Police Sub-Inspectors/Police

Constables/Police Naik through the Limited Departmental

Competitive Examination-2016. Clause 7.10 and 9 of the said

Government Resolution are relevant in the submission of the

learned Senior Counsel. Relying on the said clauses learned

Senior Counsel reiterated his submissions and contended that

even this Government Resolution supports his contentions.

According to him, the general guidelines dated 17 th May, 2013

issued by the MPSC specifically clause 3.11.4 reiterates this

position. Learned Senior Counsel also relied upon the clauses

5.1.4 and 5.1.8 in support of his contentions.

11. In the submission of the learned Senior Counsel,

even the information obtained from the MPSC under the Right

to Information Act in respect of the said exams clearly mentions

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that in respect of those candidates who comply with all the

conditions mentioned in the examination notifications are

required to pay examination fee of Rs.523/- and only those

candidates are considered as against the Open category.

However, if reserved category candidate is not complying with

the age requirement or if is not complying with the other

eligibility criteria prescribed then he has to pay examination fee

of Rs.323/- and they would be considered only against the merit

list of reserved categories. It was also informed that those who

have paid fee Rs.323/- are not eligible for recommendation in

the Open category post. Learned Senior Counsel thus submits

that the Tribunal has committed an error in clearly overlooking

the mandate of the MPSC in support of the concessions availed

by the respondents.

12. In the submission of the learned Senior Counsel for

the petitioners, the decision of the respondents in allowing the

respondent Nos. 5 to 41 to migrate to the open category is

unreasonable and contrary to the rules and the policy of the

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respondent Nos. 1 to 4.

13. Learned Senior Counsel for the petitioners relied

upon the following decisions of the Apex Court in support of his

contentions :-

(a) R.K. Sabharwal & ors. Vs. State of Punjab & ors., (1995) 2 SCC 745 ;

(b) Gaurav Pradhan & Ors. Vs. State of Rajasthan & Ors., 2017 SCC OnLine SC 1099

(c) Deepa E.V. Vs. Union of India and Ors., 2017 SCC OnLine SC 384.

(d) Jitendra Kumar Singh & anr. Vs. State of Uttar Pradesh & ors., (2010) 3 SCC 119.

14. Per contra, learned Government Pleader appearing

on behalf of the State Government supported the order passed

by the Tribunal. By an affidavit filed in August, 2017, before the

Tribunal, a stand was taken by the State of Maharashtra that as

the MPSC had taken a decision to allow the respondents who

had availed of the concession in fees for recommendation

against any Open category post for selection to the post of Police

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Sub-Inspector, it is for the MPSC to support the decision taken.

15. Learned Government Pleader pointed out that

thereafter pursuant to the directions of the Tribunal to place an

unambiguous stand of the Government on record, the General

Administration Department (GAD) has filed an affidavit dated

10/10/2017 affirmed by one Shri Vikas Vilasrao Deshmukh of

GAD. Learned Government Pleader relied upon para 5, 6, 7 and

8 of the affidavit which though quoted in the order of the

Tribunal, are reproduced herein for the sake of convenience :-

"5. I say and submit that from time to time vide G.R. dtd. 09.04.1965, 25.0101991 and 18.10.1997, the Government of Maharashtra has issued a policy of appointment of members of backward class on the vacancies for open category, if they are otherwise considered suitable for such appointments on merits. Copies of G.Rs. Dated 09.04.1965, 25.01.1991 and 18.10.1997 are annexed hereto and marked as EXHIBIT 'R-1', EXHIBIT 'R-2' and EXHIBIT 'R-3' collectively.

6. I say and submit that the Government of Maharashtra in last para (1st page) of the G.R. Dtd. 09.04.1965 provides that -

"These percentages represent the minimum number of vacancies to be filled by the appointment of members of the Backward Class and Government desires to make it clear that it is open to the appointing authorities to recruit members of the Backward Class in excess of these percentage if they are otherwise considered

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suitable for such appointment vis-a-vis other candidates on merit."

7. I say and submit that clarification regarding the candidates belong to Backward Class and selected on merit should not be counted against reserved post earmarked for them, is issued vide G.R. dtd.25.01.1991. It is clarified in last 3 lines of para 2 (2nd page) of the said G.R. that besides the 6 reserved posts, if the members of backward class selected on merit then they should be considered on the 11 open category posts as per their order of merit.

8. I say and submit that in para 2(2) of the G.R. dtd. 18.10.1997, it is clearly prescribed that candidates belong to Backward Class and selected on merit should not be counted against reserved post earmarked for them and their appointments should not be shown on the roaster point. They should be counted against open/general category."

16. Learned Government Pleader relied upon various

Government resolutions and in support of his contentions relied

upon the following decisions of the Apex Court :-

(a) Indira Sawhney etc. Vs. Union of India & ors., AIR 1993 SC 477

(b) Union of India & ors. Vs. Virpal Singh Chauhan etc., Air 1996 SC 448

(c) R.K. Sabharwal & ors. Vs. State of Punjab & ors. (supra)

(d) Gaurav Pradhan & Ors. Vs. State of Rajasthan & Ors.(supra)

(e) Deepa E.V. Vs. Union of India and Ors.(supra)

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(f) Jitendra Kumar Singh & anr. Vs. State of Uttar Pradesh & ors.(supra).

17. Learned Government Pleader thus submitted that no

error can be found in the approach of the Tribunal upholding

the decision of the respondent Nos. 1 to 4 allowing migration.

18. Learned Counsel Shri Nitin Dalvi appearing for

MPSC has invited our attention to the affidavit-in-reply filed

before the Tribunal by one Shri Dilip Arjun Waghe, working as

Under Secretary, in the office of Secretary, MPSC. He has invited

our attention to para 2 to para 6 of the said affidavit which read

thus :-

"2. I say and submit that MPSC have already recommended the candidates in the month of May, 2017 by declaring the results and now the process of appointment is within the power of the State Government and therefore the relief claimed for by the Applicants in the present O.A. cannot be considered by the MPSC. The merit list cannot be reviewed now and therefore unless the affected persons are made parties to the Petition no relief can be granted.

3. I say and submit that the declaration dated 25.09.2014 is not applicable in the facts and circumstances of this case. The purported general instructions have not been taken into consideration by the MPSC e.g. the criteria of payment of fees by the Backward Class candidates. The MPSC while

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issuing the advertisement and making the recommendation strictly adhered to the conditions mentioned in the Government Circular dt. 27.06.2016 and the rules thereon. The general guidelines or instructions issued in other matter cannot be uniformly applicable as has been contended by the applicants in this Original Application.

4. I say and submit that the age for open category and backward class candidates were relaxed as per the Judgment and order passed by the Hon'ble Tribunal in O.A.No.856 of 2016 and 695 of 2016. Accordingly, the candidates who were between age of 35 to 38 years and become qualified in open category but, could not get chance to apply for open category, their cases were considered in that category. The relaxation of upper age limit was directed to be considered retrospectively by this Hon'ble Tribunal, which the MPSC has taken into consideration and complied the same.

5. I say and submit that the condition mentioned in paragraph No.7.10 of the Circular dt. 27.06.2016 with respect to consideration of backward class candidates for open category the provision of fee is not mentioned and therefore even though they have paid the fees for open category or not, they were considered in open category.

6. I say and submit that the MPSC has taken decision consciously by following the dictat of judgment of this Hon'ble Tribunal and the Hon'ble High Court and the general announcement dated 25.09.2014 is not applied in this case as this general announcement cannot override the rules and the Government Circular and therefore it is rightly not considered by the MPSC for the present examination. In view thereof, the factor of fees for backward class categories is not taken consideration by the MPSC."

19. Learned Counsel for respondent Nos. 4 to 51 Shri

Sadavarte supported the order passed by the Tribunal. He

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invited our attention to the provisions of the Police Sub-

Inspector Recruitment Rules, 1995 ('Rules of 1995' for short). In

his submission, as the recruitment to the said post is governed

by the provisions of the said Rules of 1995, the general circulars

of proclamation of MPSC regarding reservation category availing

the concession of examination fee and the consequence thereof

provided by the MPSC will not govern the recruitment made

under these Rules. In his submission, if the State Government

has taken a decision to permit the migration in respect of those

reserved category candidates who have availed only the

concession of examination fee, such decision cannot be faulted

only on account of some general proclamation issued by the

MPSC. In support of his contentions he relied upon the decision

of the Apex Court in the case of Inder Parkash Gupta Vs. State

of J&K and others, (2004)6 SCC 786 to contend that the Rules

of 1995 which are framed in the exercise of the powers

conferred by Clause (b) of Section 5 of the Bombay Police Act

would override the rules and the standing orders of the MPSC.

He relied upon para 28 of the decision of the Apex Court in

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support of his contention.

20. Learned Counsel also relied upon the decision of the

Apex Court in the case of Vikas Sankhala and others Vs. Vikas

Kumar Agarwal and others, (2017) 1 SCC 350 and relied

upon para 82 of the said decision. Learned Counsel Shri

Sadavarte also relied upon the decision of this Court in Sushant

Suresh Salvi Vs. The State of Maharashtra in Writ Petition

No.6631 of 2017 dated 28th September, 2017, the SLP against

which decision was also dismissed on 29/11/2017 by the Apex

Court. Learned Counsel Shri Sadavarte also relied upon the

decision of the Allahabad High Court in the case of U.P. Power

Corporation and another Vs. Nitin Kumar and others, 2015

(5) ADJ 417, in Special Appeal No. 310 of 2015 decided on 19 th

May, 2015.

21. ANALYSIS :-

We have considered the submissions made on behalf

of respective parties. We have also gone through the order

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passed by the Tribunal. The petitioners who are working as

Police Constables have appeared for the Limited Competitive

Departmental Exams for promotion as Police Sub-Inspectors.

The said exams are conducted by MPSC. The respondent Nos. 5

to 41 availed of concession in payment of examination fees and

also applied with the claim that their names would be

considered only in category or seats reserved for concerned class

of citizens, and not for Open merit category. The rules and the

standing orders of the MPSC provided that those reserved

category candidates who have availed of any concession or

relaxation in respect of age, examination fee or any eligibility

criteria will not be allowed to migrate in open category.

According to the MPSC though it is usual practice and policy of

the MPSC not to permit such migration, however, for this

selection they have deviated from the practice and allowed the

migration as the requisition from the State Government did not

explicitly contain the condition to that effect. The Government

of Maharashtra has issued a policy of appointment of members

of backward class on the vacancies for open category, if they are

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otherwise considered suitable for such appointments on merits.

Learned Government Pleader has taken a categoric stand that as

respondent Nos. 5 to 41 had only availed of the concession in

examination fees for appearing for the exams, the said

concession cannot deprive the respondents from consideration

in the Open category and accordingly, the migration has been

permitted.

22. The core issue in the present petition which we are

called upon to examine is whether the concession in

examination fee availed by the respondent Nos. 4 to 51 would

fall within definition of "reservation" so as to exclude the

reserved category candidates from open competition meant for

general category candidates. In the background that the

respondent Nos. 5 to 41 have availed of only the concession in

payment of examination fees and no other concession, we may

usefully refer to the decision of the Apex Court in the case of

Jitendra Kumar Singh & anr. Vs. State of Uttar Pradesh &

ors. (supra). Para 48, 49 and 75 of the Apex Court's decision

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reads thus :-

"48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the General Category Candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list.

49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with General Category candidates. It is only thereafter the merit of the candidates is to be

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determined without any further concessions in favour of the reserved category candidates.

75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16 (1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition."

23. As discussed earlier, the core issue before the

Tribunal was with regard to the filling of general category posts

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by candidates belonging to the reserved category despite the

reserved category candidates availing the concession in payment

of examination fees. The MPSC in the light of the rules framed

by them have a general practice of not allowing the reserved

category candidates who have availed of any concession to

migrate to Open Category. However, it is upon the requisition of

the State Government that the migration has been so permitted

in the present case. We find that the State has not treated the

relaxation in fee as relaxation of standard for selection based on

the merit of the candidates in the selection test. In our opinion,

therefore, as held by Their Lordships of the Apex Court in the

case of Jitendra Kumar Singh (supra), such concession of

examination fee cannot deprive the reserved category

candidates to be considered as against the general category

posts on the basis of the merit in the said examination. In our

opinion, the concession in fee does not in any manner upset the

"level playing field". It is not possible to accept the submission of

the learned Senior Counsel for the petitioners that the

concession in fee would in any manner be infringement of

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Article 16 (1) of the Constitution of India. At the time when the

concession is availed, the open competition had not commenced.

It commences when all the candidates who fulfill the eligibility

conditions are permitted to sit in the main written examination.

With the fee concession, the reserved candidates are merely

brought within the zone of consideration, so that they can

participate in the open competition on merit. Once the

candidate participates in the written examination, it is

immaterial as to which category the candidate belongs.

24. The MPSC on the basis of the circular issued by the

State Government on 27/6/2016 particularly para No.7.10 with

respect to consideration of backward class candidates for open

category, found the provision of concession in fee is not

mentioned. In our opinion, irrespective of whether the

respondent Nos. 4 to 51 have paid the fees for open category or

not, we do not find any error in the action of the MPSC

considering these respondents in the Open merit category. The

recruitment to the said post of Police Sub-Inspector is to be

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carried out in accordance with the Rules of 1995 and if the State

Government upon issuance of the circular dated 27/6/2016 has

now taken a stand in favour of backward class candidates who

have availed of concession in examination fees to be considered

for open category, the said stand cannot be said to be contrary to

law. We are of the opinion that by availing the concessions in

examination fee, the respondent Nos. 5 to 41 have not been

given any advantage in the selection process. Except availing

this concession in examination fees the petitioners as well as the

respondent Nos. 5 to 41 are otherwise at par had to appear in

the same written test and face the same selection process. The

concession in examination fees only enabled the respondents in

the reserved category to fall within the zone of consideration.

The concession in examination fees did not in any manner tilt

the balance in favour of the respondent Nos. 5 to 41, in the

preparation of final merit/select list.

25. In view of Articles 14, 15, 16 and 38 of the

Constitution of India, it is permissible for the State to make

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suitable provisions in law to eradicate the disadvantages of

candidates belonging to socially and educationally backward

classes. As held by the Apex Court, reservations are a mode to

achieve the equality of opportunity guaranteed under Article

16(1) of the Constitution of India. The concessions and

relaxations in examination fees or age provided to the reserved

category candidates are only to enable them to compete and

seek benefit of reservation which is merely an aid to reservation.

26. The concessions in fees placed the respondent Nos.5

to 41 on par with the petitioners. It is only thereafter the merit

of the petitioners and respondent Nos. 5 to 41 was determined

without any further concessions in favour of the reserved

category candidates. It is not in dispute before us that the

standard of selection in the present selection process was

common to all the candidates. In other words, the standard was

not lowered in case of candidates belonging to reserved category

viz. respondent Nos.5 to 41.

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27. In this view of the matter, we find no reason to

interfere with the order passed by the Tribunal. The petition is

accordingly dismissed. Rule is discharged with no order as to

costs.

(M.S.KARNIK, J.) (ACTING CHIEF JUSTICE)

After the order is pronounced, learned Senior

Counsel for the petitioners made request that the status-quo

granted on 03/11/2017 be continued for a further period of 6

weeks. This request is opposed by the learned Counsel for

respondents. We are however inclined to continue the order of

status-quo till 10/01/2018. We make it clear that this interim

arrangement would operate only as regards respondent No.5 to

respondents No. 41.

 (M.S.KARNIK, J.)                                  (ACTING CHIEF JUSTICE)