Bombay High Court
The Maharashtra Public Service ... vs Shri. Abhay Dattatray Mangrulkar on 13 June, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3377/2015
PETITIONER : The Maharashtra Public Service
Commission, Bank of India,
Building, 3rd Floor, Mahatma Gandhi Road,
Hutatma Chowk, Mumbai, through
its Secretary.
...VERSUS...
RESPONDENTS : 1. Shri Abhay Dattatray Mangrulkar,
R/o 44, Ujwal Hsc. Society, Narendra
Nagar, Nagpur - 15.
2. The State of Maharashtra, In the
Ministry of water supply and
Development Agency, Bhujal
Bhavan, Shivaji Nagar, Pune - 5.
3. The Director, Ground Water Survey
and Development Agency, Bhujal
Bhavan, Shivaji Nagar, Pune - 5.
(Deleted R. No.3 as per Court's
order dt. 1.7.15)
4. Nitin Purushottam Dahikar
Aged Major.
5. Abhijit Prakashrao Dharshivkar,
Aged Major.
Amended as per
Court's order dt. 6. Mustaq Ahmad Jabir Shaikh,
01/07/2015. Aged Major.
7. Sachin Suresh Khode, Aged Major.
8. Ravindra Vishwanathrao Manjaramkar
Aged Major.
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9. Kiran Sharad Kumbhare,
Aged Major.
10. Ishadaya Pandurang Ghodeswar,
Aged Major.
11. Madhavi Suresh Dubey,
Aged Major.
Amended as per
Registrar's Order Madhavi Suresh Dubey
dt. 18/1/17.
R/o C/o Ashish Dongre,
Flat No.B-4 Building Vishal Tower,
Apartment P-1 Sector, Behind
Reliance Petrol Pump, N-7 CIDCO,
Aurangabad - 431 003.
12. Sujit Suresh Shimpi,
Aged Major.
13. Sunil Sahebrao Kadu,
Aged Major.
Amended as
per Registrar's Sunil Sahebrao Kadu
order Dt. R/o Plot No.7 Swanand Navjivan Colony,
18/1/17 Rangoli Lawn, Kathora Road, Amravati.
14. Deepali Dnyaneshwar Thakre,
Aged Major.
15. Suresh Shriram Naitam,
Aged Major.
16. Suvarna Makkan Gangurde,
Aged Major.
17. Shashikant Navnath Nimbalkar,
Aged Major.
18. Prashant Laxmanrao Golange,
Aged Major.
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19. Tukaram Purnachandra Sayam,
Aged Major.
Amended as Tukaram Purnachandra Sayam
per Registrar's
R/o At Ranwahi, Post - Malawad,
Order dt. Tahsil Kurkheda, Distt. Gadchiroli.
18/1/17
R.Nos.4 to 19, through the Secretary,
Maharashtra Public Service Commission,
Bank of India Building, Hutatma Chowk,
Mumbai - 400001. (Address as shown in
Original Application No.318/2014)
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Shri Abhay Sambre, Advocate for petitioner
Shri V.S. Kukday, Advocate for respondent no.1
Shri K.L. Dharmadhikari, AGP for respondent nos.2 and 3
Shri S.S. Ghate, Advocate, for respondent nos.4, 10 and 12
--------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 13.06.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned Counsel for the parties.
The short point involved in this writ petition is whether the
Maharashtra Administrative Tribunal was justified in holding that both
the selection lists prepared by the petitioner - Maharashtra Public Service
Commission were bad in law and a fresh selection list should be prepared
in accordance with law.
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Few facts giving rise to the writ petition are stated thus :-
The petitioner - M.P.S.C. issued an advertisement on
21.1.2013 inviting applications for appointment on 17 posts of Assistant
Geologists. In all, 379 candidates applied for the said posts. A written test
was conducted and a select list of 50 candidates was prepared for
appearing at the interview. As per the advertisement, specially clause 6
thereof the screening of the candidates was to be made in terms of the
marks secured by them at the written examination. It was further
mentioned in clause 6 of the advertisement that the syllabus for the
written examination, the medium of instructions for the examination and
the other aspects pertaining to the selection process would be published
on the website of the M.P.S.C. It is not in dispute that the M.P.S.C. had
uploaded the syllabus with a special note on its website. It was provided
in the syllabus that there would be two stages of the examination, the
written examination would carry 200 marks and the oral interview would
carry 50 marks. It was stated in the syllabus that in all 100 questions
would be posed and the time for answering them would be one hour. In
the syllabus that was published in pursuance of the advertisement, it was
provided that the candidates would be selected on the marks secured by
them in the written examination, which carried 200 marks and the oral
interview which carried 50 marks. The respondent no.1 was one of the
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candidates that had applied for the post of Assistant Geologist. The
respondent no.1 had passed in the screening test (written test) and was
called for interview along with others. The respondent no.1 was aware
about the syllabus and the special note that the candidates would be
selected on the basis of the marks secured by them at the written test
(200 marks) and oral interview (50 marks). The petitioner - Public
Commission prepared a select list of the candidates solely on the basis of
the marks secured by the candidates at the interview. On the basis of the
marks secured only at the interview the name of the respondent no.1 was
included in the select list. However, when the M.P.S.C. received certain
complaints, the select list that was prepared solely on the basis of the
marks secured at the interview was scrapped and a fresh select list was
published on 29.3.2014. The name of the respondent no.1 did not find
place in the second select list prepared by the M.P.S.C. Being aggrieved by
the action on the part of the petitioner - M.P.S.C. of publishing a second
select list, the respondent no.1 had challenged the same before the
Maharashtra Administrative Tribunal. The respondent no.1 had placed
the guidelines - syllabus that was published by the petitioner - M.P.S.C.
on the website along with the original application on record. The
Maharashtra Administrative Tribunal, on an appreciation of the material
on record partly allowed the original application filed by the respondent
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no.1 and set aside the second select list prepared by the M.P.S.C. on
29.3.2014. The Maharashtra Administrative Tribunal held that the
petitioner - M.P.S.C. had not prepared either the first or the second select
list in accordance with law. The Tribunal held that as per clause 3.3.3 of
the General Instructions of the M.P.S.C., the marks secured by the
candidates at the screening test would not be considered while selecting
the candidates for appointment. The Tribunal held that the petitioner -
M.P.S.C. was liable to follow the General Instructions, specially clause
3.3.3 of the General Instructions while selecting the candidates. The
Tribunal quashed both the select lists and directed the petitioner -
M.P.S.C. to prepare a fresh list for selecting the candidates. The order of
the Tribunal is challenged by the petitioner - M.P.S.C. in the instant
petition.
Shri Sambre, the learned Counsel for the petitioner -
M.P.S.C. submitted that the Tribunal was not justified in quashing the
second select list prepared by the M.P.S.C. It is submitted that in the
advertisement, specially clause 6 thereof it was clearly mentioned that a
screening test would be conducted and the syllabus and the other aspects
concerning the selection and appointment would be published on the
website of the M.P.S.C. It is submitted that as per the syllabus, which
contains the other instructions also, the selection list was to be prepared
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on the basis of the marks secured by the candidates in the written
examination and the interview. It is stated that the respondent no.1
participated in the selection process with open eyes. It is submitted that
the respondent no.1 did not challenge the special note in the syllabus that
was published along with the advertisement, in any Court of law, as being
contrary to clause 3.3.3 of the General Instructions of the M.P.S.C. It is
submitted that the respondent no.1 was very well aware of the said
condition as the said document was annexed by the respondent no.1 to
the original application filed by him before the Tribunal. It is submitted
that if the special note appended to the syllabus - instructions was
contrary to the General Instructions, specially clause 3.3.3 thereof, the
respondent no.1 should not have participated in the selection process
without challenging the special note. It is submitted that it is well settled
that a candidate participating in the selection process cannot turn around
and challenge the selection process at a subsequent stage. It is stated that
the M.P.S.C. has prepared the second select list solely on the basis of the
syllabus - instructions that was published in pursuance of the
advertisement about which the respondent no.1 was clearly aware and
hence the respondent no.1 could not have effectively challenged the
second select list before the Maharashtra Administrative Tribunal. It is
submitted that the second select list is prepared by the M.P.S.C. in
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accordance with the advertisement and the syllabus published along with
it, of which a clear notice was given to all the candidates. It is submitted
that the Tribunal committed a serious error in quashing the second select
list and directing the M.P.S.C. to prepare a fresh select list in accordance
with clause 3.3.3 of the General Instructions.
Shri Kukday, the learned Counsel for the respondent no.1
has supported the order of the Tribunal. It is submitted that the Tribunal
was justified in quashing the second select list as the second select list was
not prepared in consonance with clause 3.3.3 of the General Instructions
of the M.P.S.C. pertaining to all selection processes. It is submitted that
on a reading of clause 6 of the advertisement, it is clear that the written
examination was conducted only for screening the candidates. It is
submitted that since the selection of the candidates in the second list was
not in consonance with clause 3.3.3 of the General Instructions, the
Tribunal has rightly quashed the second select list prepared by the
M.P.S.C. It is stated that the Rules were subsequently amended in the
year 2014 and as per the amended Rules, the second select list was
published.
Shri Ghate, the learned Counsel for the respondent nos.4,
10 and 12 adopted the submissions made on behalf of the petitioner -
M.P.S.C. and submitted that the Tribunal was not justified in quashing
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and setting aside the second select list.
On hearing the learned Counsel for the parties and on a
perusal of the order of the Tribunal, it appears that the Tribunal was not
justified in allowing the original application filed by the respondent no.1,
challenging the second select list on the ground that it was not in
conformity with clause 3.3.3 of the General Instructions that applied to all
the selection processes conducted by the M.P.S.C. The respondent no.1 as
well as the other candidates had applied in pursuance of the
advertisement dated 21.1.2013. Clause 6 of the advertisement clearly
provided that there would be a screening test and only a percentage of
candidates would be called for the interview according to their merit in
the written examination. Admittedly, in clause 6 of the advertisement, it
was further mentioned that the syllabus for the written examination
mentioning the topics and the other aspects pertaining to the selection
process was published on the website of the M.P.S.C. The respondent no.1
was clearly aware that the M.P.S.C. had published the syllabus and the
other instructions on the website and as per the said note appended to the
syllabus and other instructions, the selection of the candidates could have
been made by the M.P.S.C. only on the basis of the marks secured by the
candidates at the written examination and the interview. The respondent
no.1 as well as the other candidates were aware of this position. This
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document was annexed by the respondent no.1 to the original application
filed by him before the Maharashtra Administrative Tribunal. After having
participated in the selection process, the respondent no.1 could not have
been turned around to challenge the special note that was published on
the website of the M.P.S.C. along with the syllabus and other instructions
in pursuance of the advertisement. If according to the respondent no.1
the special note was not in consonance with the Rules framed by the
M.P.S.C. or General Instructions of the M.P.S.C. that governed all the
selection processes, the respondent no.1 should have challenged the said
special note at the outset, before participating in the selection process.
The Hon'ble Supreme Court has laid down time and again that a
candidate participating in the selection process cannot be permitted to
canvass at a later stage that a particular condition in the advertisement or
the Annexures appended thereto is not in consonance with the Rules
pertaining to the selection process or the Rules pertaining to qualification,
age criterion or any other conditions etc. It would be necessary to refer to
the judgments of the Hon'ble Supreme Court, reported in 2009 (3) SCC
227, 1997 (4) SCC 426, 2008 (4) SCC 171, 2010 (12) SCC 576 and
2011 (1) SCC 150 in this regard. Even assuming that there was some
discrepancy between the General Instructions of the Rules of the M.P.S.C.
and the advertisement, it was necessary for the candidates to challenge
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the advertisement and the instructions or the Annexures appended
thereto before participating in the selection process. We have perused the
General Instructions - syllabus published along with the advertisement of
the M.P.S.C. The instructions - syllabus clearly mention that the written
examination would carry 200 marks and the interview would carry 50
marks. The special note further provides that the marks secured at the
written examination and the interview would be considered while
selecting the candidates. We do not find that the selection process was
conducted by the M.P.S.C. in pursuance of the Rules framed by them. The
Rules framed by the M.P.S.C. as are pointed out to us, for the relevant
year 2013, clearly provide that there would be three tests, one test would
be the screening test, the second test would be a written test and the third
would be an interview. In this case only a written test and interview were
conducted and the screening of the candidates was done on the basis of
the marks secured by them at the written test. The screening and written
tests were not conducted separately as provided in the Rules. The
advertisement did not provide so. It is possible that this Court may have
quashed the special note in the syllabus on the basis of which the second
select list was prepared had the respondent no.1 or any other candidate
challenged the same before participating in the selection process as being
contrary to the Rules or General Instructions of the M.P.S.C. However,
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none of the candidates including the respondent no.1 challenged the
special condition in the syllabus - instructions published in pursuance of
the advertisement. The selection process was not conducted strictly in
pursuance of the Rules but was conducted in pursuance of the criteria
mentioned in the advertisement and the syllabus - instructions published
along with it. We find that the second select list is prepared by the
petitioner - M.P.S.C. strictly in accordance with the conditions laid down
in the advertisement and the syllabus - instructions that are published
along with advertisement. There is no fault in the action on the part of
the M.P.S.C. in preparing the second select list on the basis of the marks
secured by the candidates at the written examination and the oral
examination (interview). The M.P.S.C. probably had desired to select
more meritorious candidates and had therefore appended a special note
to the syllabus - instructions that was published along with the
advertisement. We are not dealing with the correctness or otherwise of
the action of the M.P.S.C. in publishing the syllabus and/or the
instructions along with the syllabus, which comprises of the special note,
being contrary to law as that challenge cannot be raised after all the
candidates participated in the selection process and had not challenged
the same. The judgment reported in AIR 1990 SC 405 and relied on by
the Counsel for the respondent no.1 would not advance the case of the
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respondent no.1 any further. In the said decision, the Hon'ble Supreme
Court has held that the selection process is to be completed in accordance
with the Rules, as they stood at the time of the commencement of the
process and the amended Rules would not invalidate the selection already
made. The Hon'ble Supreme Court has laid down that the rules of the
game cannot be changed after the selection process commences. In the
instant case, before the selection process commenced all the candidates
were made aware by the special note appended to the instructions -
syllabus that the marks secured at the written examination and the oral
interview would be considered for selecting the candidates. The second
select list was prepared in pursuance of the conditions in the
advertisement and syllabus - instructions published by the M.P.S.C. at the
time of the advertisement. The Rules of the game are not changed as all
the candidates were aware that the marks secured by them at the oral
interview and the written examination would be considered for their
selection and appointment.
Hence, for the reasons aforesaid, the writ petition is
allowed. The order of the Tribunal is hereby quashed and set aside. The
second select list prepared by the Maharashtra Public Service Commission
cannot be interfered with insofar as the selection of the candidates is
based on the marks secured by them at the interview and the written test.
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The original application filed by the respondent no.1 shall stand
dismissed.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
