Bombay High Court
Avdhoot Gangaram Puri vs The State Of Maharashtra And ... on 6 June, 2017
Bench: S.V. Gangapurwala
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION
NO.
11901 OF 2015
Avdhoot S/o Gangaram Puri,
Age : 26 years, Occ.: Government Service,
R/o.: Plot No.58, Rajdhani Colony,
Satara Parisar, Aurangabad PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Industries, Energy and
Labour Department,
(Industries-4) Mantralaya,
Mumbai-32
2. The Maharashtra Public Service
Commission, Through Secretary,
Bank of India Building,
3rd Floor, Mahatma Gandhi Road,
Hutatma Chowk, Mumbai - 400001
3. Director,
Directorate of Government Printing and
Stationary,
Government Book Depot &
Publication House,
Netaji Subhash Chandra Bose Road,
Mumbai, Maharashtra 400004
4. Sachin S/o Haribhau Kedar,
Age : 35; Occu.: Service;
R/o.: Government Press,
Civil Lines, Nagpur RESPONDENTS
----
Ms. Pradnya S. Talekar, Advocate for the Petitioner
Mr. V.S. Badakh, A.G.P. for the respondent Nos.1 to 3
None appears for respondent No.4, though served
----
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CORAM : S.V. GANGAPURWALA AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 5th MAY, 2017
PRONOUNCED ON : 6th JUNE, 2017
JUDGMENT
(PER : SANGITRAO S. PATIL, J.)
:
Rule, returnable forthwith. With the consent of
the learned counsel for the petitioner and the learned
A.G.P., heard finally.
2. The petitioner has prayed for the following
substantive reliefs :-
A] To quash and set aside the judgment and
order dated 21.09.2015 in Original Application
No.612 of 2015 passed by the Hon'ble
Maharashtra Administrative Tribunal, Mumbai
(Exhibit "M") by issuing writ of certiorari or
any other appropriate writ, direction or
order;
B] To hold and declare that the action of the
MPSC in not allowing the petitioner to appear
for the interview, after being called for the
same is illegal;
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C] To direct the respondent No.2 to appoint
the petitioner as Asst. Manager from VJNT
Category with effect from 20-01-2013 and grant
all other consequential reliefs by issuing
writ mandamus or any other appropriate writ,
direction or order;
Amended
F] To hold and declare clause 2.2.3.4 of the
General Instructions 2010 issued by MPSC
ultra-vires Article 14 of the Constitution of
India, to the extent it requires NCL
Certificate of the financial year preceding to
the date of advertisement, by issuing writ of
certiorari or any other writ, or order or
direction as the case may be.
3. The admitted facts, in short, are that as per
the advertisement dated 23rd February, 2012, respondent
No.2 - Maharashtra Public Service Commission (MPSC)
called for online applications from the eligible
candidates for filling up four posts of Assistant
Manager in the Directorate of Printing, Stationary and
Publication, Government of Maharashtra, out of which one
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post was reserved for DT-A category. The reservation for
DT-A, NT-B, NT-C and NT-D was interchangeable, in the
sense, if a suitable candidate was not available from
DT-A category, then it could be filled up from the
candidates belonging to NT-B, NT-C or NT-D categories.
As per Clause No.7 of the advertisement, the candidates
were given to understand that they should read the
General Instructions published on the official website
of respondent No.2 and should follow those instructions.
The General Instructions, which were published in
September, 2010, were applicable to the present
advertisement amongst other advertisements published by
respondent No.2. As per Clause No.2.2.3.4 of the General
Instructions and Clause No.6 of the interview call
letter issued to the petitioner, the candidates
belonging to the reserved categories, excepting the
Scheduled Caste and Scheduled Tribe categories, should
produce Non-Creamy layer ("NCL", for short) certificate
at the time of the interview. As per Clause No.2.2.3.4
of the General Instructions, the NCL certificate, which
was required to be produced, should have been issued in
the financial year immediately preceding the financial
year in which the advertisement was published.
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4. The petitioner was not allowed to participate
in the interview on 28th June, 2012 on the ground that he
did not produce his caste certificate of NT-B category
and NCL certificate at the time of the interview.
5. The learned Counsel for the petitioner submits
that the caste certificate as well as NCL certificate
were actually produced by the petitioner at the time of
the interview, however, the Desk Officer Shri Jadhav,
who was scrutinizing the original documents of the
candidates, misguided the petitioner and got it written
from him that he was withdrawing his candidature. The
learned counsel submits that the petitioner has produced
on record NCL certificate dated 13th May, 2011 and caste
validity certificate dated 22nd March, 2011 with caste
certificate dated 19th May, 2000. The petitioner was well
aware that he was required to produce his original
certificates at the time of the interview. When the
petitioner was claiming benefit of reservation meant
from NT-B category and when he was having these original
documents with him, there was no reason for him for not
producing the said original certificates at the time of
the interview. The learned counsel submits that the Desk
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Officer of respondent No.2, with an ulterior motive and
malafide intention, created obstacles in the way of the
petitioner in appearing for the interview and by
prevailing over the petitioner, got it written from him
that he was withdrawing his candidature. She submits
that the NCL certificate produced by the petitioner was
valid one. However, he has been wrongly refused the
opportunity of participating in the selection process by
illegally denying him the chance to appear for the
interview.
6. The learned counsel further submits that the
NCL certificate produced by the petitioner was of the
financial year 2011-12. The advertisement was published
on 23rd February, 2012 i.e. in the financial year
2011-12. As per Clause No.2.2.3.4 of the General
Instructions, the NCL certificate of the financial year
immediately preceding the financial year of publication
of the advertisement was required to be produced.
However, according to her, there was no bar for
producing the NCL certificate of the same financial year
in which the advertisement was published. Relying on
the Government Resolution dated 25th March,2013,issued by
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the Social Justice and Special Assistance Department,
Government of Maharashtra, she submits that the last
date of filing the application or the last date given in
the advertisement would be the crucial date for
considering Non-Creamy layer status of the candidate.
According to her, if Clause No.2.2.3.4 of the General
Instructions of 2010 is taken to invalidate the NCL
certificate of the nearest date, it would lead to
absurdity in view of the judgment in the case of State
of Jharkhand V. Tata Steel Ltd. 2016 SCC OnLine SC 135.
According to her, this Clause is not only arbitrary but
is violative of Article 14 of the Constitution
of India. She submits that the Government Resolution
dated 25th March, 2013, prescribing the crucial
date for considering the Non-Creamy layer status
of the candidate, would prevail over Clause
No.2.2.3.4 of the General Instructions. The learned
counsel submits that the NCL certificate produced by the
petitioner may be treated as valid and selection of
respondent No.4 to the post of Assistant Manager (Grade-
B) from NT-D category may be set aside. Relying
on the judgment in the case of Kuldeep Singh Vs.
Central Bank of India 2016 SCC OnLine P&H 10574,
she submits that respondent No.2 may be
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directed to proceed with the selection process from the
stage of calling for interview the candidates eligible
for being considered from DT-A category.
7. Respondent No.2 filed replies and resisted the
petition. The learned A.G.P. for respondent No.2
mainly harped upon the necessity of compliance of
Clause No.2.2.3.4 of the General Instructions of 2010,
issued by respondent No.2 in respect of production
of NCL certificate. He submits that the petitioner, in
fact, did not produce NCL certificate at the time of
interview. Therefore, he was rightly refused an
opportunity of appearing for the interview. He
submits that the petitioner in his own handwriting
unequivocally withdrew his candidature on 28th June,
2012 since he realised that for want of NCL certificate,
he was not eligible for being considered from NT-B
category and for want of experience of 20 years, he was
not eligible for being considered for open seat.
He submits that even if it is accepted for a while
that the petitioner produced NCL certificate dated
13th May, 2011 which is issued in the financial year
2011-12, since the advertisement dated 23rd
February, 2012 also was published in the same
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financial year, as per Clause No.2.2.3.4 of the General
Instructions, the said NCL certificate being not of the
financial year immediately preceding the financial year
in which the advertisement was published, cannot be held
to be valid. He submits that since the petitioner
participated in the selection process, without
challenging Clause No.2.2.3.4 of the General
Instructions, now he cannot take a contrary stand to
challenge the validity of the said clause after finding
that as per that clause, he was not allowed for the
interview. He submits that the Maharashtra
Administrative Tribunal has rightly considered this
aspect and rightly rejected the claim of the petitioner
for being considered for the above-mentioned post.
According to him, the impugned judgment and order of
the Tribunal do not suffer from any infirmity or
perversity. He supports the said judgment and order and
prays that the writ petition may be dismissed.
8. We do not wish to go into the disputed fact
whether the petitioner actually produced NCL certificate
dated 13th may, 2011 at the time of the interview on 28 th
June, 2012 or not. We assume that it was produced by the
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petitioner. The only question would be whether the said
NCL certificate was in consonance with the requirements
of Clause No.2.2.3.4 of the General Instructions. As per
the said Clause, the petitioner was required to produce
the NCL certificate of the financial year immediately
preceding the financial year in which advertisement
dated 23rd February, 2012 was published. It is obvious
that the advertisement and the NCL certificate are from
the same financial year i.e. 2011-12. As per Clause
No.2.2.3.4 of the General Instructions, the NCL
certificate, which the petitioner was required to
produce, ought to have been of the year 2010-11. Thus,
the NCL certificate produced by the petitioner was not
as per the requirement of Clause No.2.2.3.4 of the
General Instructions.
9. Reliance is placed by the learned counsel for
the petitioner on the Government Resolution dated 25 th
March, 2013, wherein the crucial date for considering
the Non-Creamy layer status of the candidate has been
stated to be the last date of filing/receiving the
application or any other prescribed date in the
advertisement. This Government Resolution would be of no
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help to the petitioner since it has been issued after
about one year of publication of the advertisement and
it cannot be made applicable with retrospective effect.
10. The contention of the learned counsel for the
petitioner that there was no bar for producing NCL
certificate of the financial year in which the
advertisement was published, cannot be accepted for the
simple reason that all the candidates who were aspiring
for the above-mentioned posts were governed by the
General Instructions of 2010. Many of the candidates
might not have applied for the post for want of NCL
certificate of the financial year immediately preceding
the financial year of the advertisement. Allowing the
petitioner to produce NCL certificate of the financial
year which was not prescribed in Clause No.2.2.3.4 of
the General Instructions, would cause discrimination to
those who might not have applied for the said post
because of the specific instructions given in Clause
No.2.2.3.4. No exception can be made in respect of the
petitioner only so as to enable him to participate in
the selection process in the absence of the requisite
NCL certificate in terms of Clause No.2.2.3.4 of the
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General Instructions. In the circumstances, though the
arguments advanced by the learned counsel of the
petitioner in this regard appear to be attractive,
cannot be accepted.
11. Here, a reference may be made to the judgment
in the case of Madras Institute of Development Studies
and Another Vs. K. Sivasubramaniyan and others (2016) 1
SCC 454, wherein after referring to certain judgments of
the Hon'ble the Apex Court, it has been reiterated by
the Hon'ble the Apex Court that when the candidate
consciously takes part in the selection process, he
subsequently cannot turn around and question the very
same selection process. In the present case, the
petitioner participated in the selection process after
going through Clause No.2.2.3.4 of the General
Instructions. Accordingly, he claims to have produced
NCL certificate. However, he did not adhere to the
specific instructions given in Clause No.2.2.3.4
pertaining to the financial year of issuance of the NCL
certificate. When he was refused the opportunity to
appear for the interview on the ground that he did not
produce the requisite NCL certificate, he rushed to the
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Court challenging Clause No.2.2.3.4 of the General
Instructions. Such a course cannot be allowed to be
adopted after consciously participating in the selection
process. Consequently, the contention of the learned
counsel for the petitioner that Clause No.2.2.3.4 of the
General Instructions, should be declared as ultra-vires,
at this belated stage, cannot be considered.
12. The Tribunal has rightly considered the
controversy between the parties and rightly held that
the petitioner did not produce the requisite NCL
certificate and failed to comply with Clause No.2.2.3.4
of the General Instructions. The Tribunal has rightly
held that the NCL certificate dated 13 th May, 2011 was
not valid for the selection process in question. The
impugned judgment of the Tribunal is based on sound
reasoning. It does not suffer from perversity. We do
not find any reason to interfere with the said judgment.
In the circumstances, the judgment in the case of State
of Jharkhand V. Tata Steel Ltd. and Kuldeep Singh
(supra) would be of no assistance to the petitioner to
advance his case.
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13. The writ petition is devoid of any substance.
It is liable to be dismissed and accordingly dismissed.
Rule is accordingly discharged. No costs. The original
record be returned to respondent No.2.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.V. GANGAPURWALA]
JUDGE JUDGE
npj/wp11901-2015
