Bombay High Court
Maheshkumar Chandrashekhar ... vs The State Of Maharashtra And 11 Ors on 9 March, 2017
Bench: S.C. Dharmadhikari
Judgment-WP.857.2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 857 OF 2014
Maheshkumar Chandrashekhar }
Dhage }
Age 52 years, Occ. Service, }
R/o. B1-303, Silver Oak Co. Hsg. }
Society Ltd., East Avenue, }
Near Bank of Maharashtra, }
Kalyani Nagar, Pune, }
District - Pune 411 014. } Petitioner
versus
1. The State of Maharashtra }
through Secretary, Department }
of Energy, Mantralaya, }
Fort, Mumbai. }
}
2. The Managing Director of }
MSEB Holding Company }
}
3. The Managing Director }
MSEDCL }
}
4. The Director (Operation) }
MSEDCL }
}
5. The Executive Director (H. R.) }
MSEDCL }
}
6. The Chief General Manager }
(Tech.), MSEDCL }
}
7. The Chief General Manager }
(H. R.), MSEDCL }
}
The Respondent nos. 1 to 7 }
having Corporate Office at }
Prakashgad, Plot No. G-9, }
Prof. Anant Kanekar Marg, }
Bandra (E), Mumbai - 400 051 }
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8. The Director, }
Institute of Banking Personnel }
Selection, IBPS House, Plot No. }
166, Behind Thakur Ploytechnic, }
Off. Western Express High Way, }
Kandivali (East), }
Mumbai - 400 010 }
}
9. Shubhangi Digambar }
Harmalkar, }
Age - Major, Occu. Service }
R/o. Commercial Intelligence }
Wing, Astralla batteries Building, }
Dharavi, Matunga, Mumbai }
}
10. Sanjay s/o. Bapurao Wakade }
Age - major, Occu. Service, }
R/o. Office of Executive Engineer, }
MSEDCL, Deori Division, }
Pune, Dist. Pune }
}
11. Kundan s/o. Pandurang Bhise }
Age - Major. Occu. Service, }
R/o. Office of Executive Engineer, }
MSEDCL, Yavatmal Division, }
Yavatmal, Dist. Yavatmal }
}
12. Sukhdeo s/o. Narayan }
Sherkar }
Age - Major, Occu. Service, }
R/o. Office of Executive Engineer, }
MSEDCL, Rastapeth Division, }
Pune, Dist. Pune } Respondents
Mr. Vishal Kanade with Mr. Satish Raut
for the petitioner.
Mr. Sukanta Karmakar - AGP for
respondent no. 1.
Mr. Prashant Chavan with Mr. Nirav
Shah i/b. M/s. Little and Co. for
respondent nos. 2 to 7.
Page 2 of 25
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Judgment-WP.857.2014.doc
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
Reserved on 18 th November, 2016
Pronounced on 9 th March, 2017
Judgment :- (Per S. C. Dharmadhikari, J.)
1. By this petition under Article 226 of the Constitution of
India, the petitioner seeks the following reliefs:-
"b) The final selection list dt. 15/6/2013 for the post of
Executive Engineer (Dist.) pursuant to the advertisement
No. MSEDCL-10/2012 by Maharashtra State Electricity
Distribution Company Ltd./Respondent No. 1 to 7
authorities may be pleased to quashed and set aside.
c) This Hon'ble court may be pleased to hold that
Respondent no. 9 to 12 i.e. sr. no. 3 to 6 in select list and
sr.no. 1 of the select list are ineligible for appoint to the
post of Executive Engineer under advertisement
No.MSEDCL-10/2012 by Maharashtra Electricity
Distribution Company Ltd.
d) The Respondent No. 1 to 7 may pleased be directed to
cancel selection of Respondent No. 9 to 12 and Sr. No. 1 of
select list and declare the petitioner as selected by drawing
next below list of four candidates those who are only
complying prerequisite condition of advertisement for
appointment of Executive Engineer (Dist.)"
2. The facts and circumstances in which these reliefs are
sought are briefly set out hereinbelow:
3. The petitioner states that he has completed his Graduation
in Bachelor of Engineering (Electrical) in the year 1983. He was
working as Lecturer from September 1983 to 3rd October, 1986
with different private as well as Government Engineering College.
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The petitioner was appointed as a Junior Engineer with the
Maharashtra State Electricity Distribution Company Limited
(MSEDCL) i.e. respondent No.3 to 7 authority from October 1986
to May 2004. The petitioner was working as Assistant Engineer
with MSEDCL from May 2004 to September 2012. Thereafter,
the petitioner is working as a Deputy Executive Engineer with
MSEDCL since October, 2012 till this date and has gained
experience of more than 27 years in the field of Power
Distribution and more than 9 years in the post of Assistant
Engineer and Deputy Executive Engineer. A copy of the
Experience Certificate issued by the Chief General Manager (HR-
Tech) MEDCL is annexed at Exhibit-A to the paper-book. In 2012,
the respondent authorities issued one advertisement
No.MSEDCL-10/2012 for about 09 posts under Direct
Recruitment. A copy of the said advertisement is annexed as
Exhibit-B to the paper-book. The petitioner being an eligible
candidate for the post of Executive Engineer (Dist.) applied online
as per the guidelines given in the advertisement. A copy of the
online application form is marked as Exhibit-C to the paper-book.
As per the advertisement for the post of Executive Engineer
(Dist.) more than 200 candidates submitted their applications. A
copy of the list of candidates who applied for Executive Engineer
(Dist.) is annexed as Exhibit-D to the paper-book.
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4. After scrutiny of the applications received on-line being
carried out by the respondent Nos.2 to 6, the petitioner qualified
for the written test. The written examination for the said post
was conducted on 13th January, 2013. After the written test was
conducted, the list of qualified candidates for the interview was
published without disclosing the marks obtained by the
candidates. A copy of the list of candidates who appeared for the
interview along with the schedule of all the candidates selected
for interview is annexed as Exhibit-E to the paper-book.
5. The petitioner states that he had applied for the post of
Executive Engineer in Distribution (Code : EED) against
vacancies reserved for Other Backward Class category. The
indicated vacancies in the advertisement for the post of
Executive Engineer (Dist.) are 12, considering the projected
vacancies upto September, 2013, out of which 4 vacancies are for
Other Backward Class category. The petitioner was surprised
because he was not called for the personal interview initially. The
petitioner was confident that he will be selected for interview.
Thereafter the petitioner came to know that the respondent
authority has selected some non-qualified candidates for
interview for the reasons best known to them. When the
petitioner pointed out the said facts to the respondent authority
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vide letter dated 22nd March, 2013, the respondent thereafter
included the name of the petitioner along with other 10
candidates in the list of candidates who were called for interview
at the last moment. A copy of the letter dated 22 nd March, 2013,
addressed to respondent Nos.5 to 7 is marked as Exhibit-F to the
paper-book and a copy of the second list of 11 candidates who
were called for the interview is marked as Exhibit-G to the paper-
book.
6. The petitioner further states that he was selected in the
written test and called for the interview on 6 th April, 2013, but
the marks obtained by the petitioner as well as the other
candidates were not disclosed / displayed. The respondent No.8
has also not published marks obtained by the petitioner and other
candidates in the interview. In fact, select list should consist of
total marks obtained by the candidates in the written
examination and the personal interview and also, the marks
obtained by the candidates in the interview shall also be
displayed on the Notice Board or on the official website of
MSEDCL on each day of the interview as per Appendix-P of
Classified and Recruitment Regulation 2005 correction slip by
Notification vide C.S. No. 271 dated 1 st April, 2000 to GSO 112
dated 12th February, 1962. A copy of the said Notification is
marked as Exhibit-H to the paper-book.
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7. The petitioner states that the advertisement as well as
Classification and Recruitment Regulations, 2005, lays down the
criteria for candidates to be called for the interview against the
number of candidates to be selected and that ratio is 1:3. Initially,
29 candidates were called for the interview for the post of
Executive Engineer (Dist.). This seems to be not as per the ratio.
8. The petitioner then states that the petitioner pointed out
vide Exhibit-F that the shortlisted candidates who were selected
for the interview were not eligible for the post of Executive
Engineer (Dist.) as per the advertisement clauses because as per
advertisement clause No.2 the applicant for the post of Executive
Engineer (Dist.) must possess "9 years experience in power
sector, out of which 5 years should be in the capacity of Assistant
Engineer or 2 years Deputy Executive Engineer". As per clause
6.8 of the advertisement, selection of departmental candidates
was subject to verification of disciplinary action and vigilance
enquiry, if any, in process / completed and other service record.
In response to the petitioner's letter dated 22 nd March, 2013, 11
candidates including the petitioner were called for the interview
for the post of Executive Engineer (Distribution) on 6 th April,
2013. As such respondent concealed the genuine merit to give
scope for appointment of unsuitable and desired candidate,
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respondent Nos.2 to 8. However, some of these candidates are
also not eligible for the post of Executive Engineer (Dist.) as per
advertisement and also not as per ratio provided in clause 6.1 of
the advertisement.
9. The petitioner states that he submitted a representation
dated 21st May, 2013, to respondent Nos.4 to 7 to exclude the
name of one shortlisted candidate for the interview, namely, Mr.
Manish Bapurao Thakare who was meanwhile promoted as
Executive Engineer (Dist.) in departmental promotion while
preparing select list of direct recruitment for the post of
Executive Engineer (Dist.) and requested to update the wait listed
candidate. A copy of the said letter dated 21st May, 2013, is
annexed as Exhibit-I to the paper-book.
10. The petitioner states that after the interviews were
conducted, the Final List of selected candidates for various posts
along with the post of Executive Engineer in Distribution was
published on 15th June, 2013, without marks obtained in written
test and personal interview of the selected candidates including
the name of Mr. Manish Bapurao Thakare after a lapse of two
months which is in contravention of rules provided in Appendix-
P. A copy of the final list of selected candidates for the post of
Executive Engineer in Distribution is annexed as Exhibit-J to the
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paper-book. The petitioner further states that inspite of the
petitioner bringing to the notice of the respondent that Mr.
Manish B. Thakare has been included in the final list which
disturbs the preference merits list of selected candidates, the
said fact was overlooked by the respondent authority and it
displayed the wrong list for the post of Executive Engineer (Dist).
11. The petitioner further states that the petitioner applied for
the marks obtained by the candidates vide application dated 23 rd
July, 2013, under clause 3 of The Right to Information Act, 2005.
However, the Public Information Officer (PIO), Assistant General
Manager (HR-Tech) of respondent Nos.2 to 7 has not supplied the
information. The petitioner preferred an appeal dated 27 th
August, 2013, against the decision of the PIO. As per the said
order of the appellate authority, it was held that the marks
obtained by the candidates in the written test and oral interview
are not confidential and hence be supplied as per order
No.93/2013 dated 27th September, 2013. However, the marks
given by the respondent's Public Information Officer are not as
per rules and demands. They were not forwarded within a
specific time and the document was received on 18 th October,
2013. The copies of the appeal dated 27 th August, 2013, order
dated 27th September, 2013 and the list along with the total
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marks dated 18th October, 2013, respectively, are annexed as
Exhibits - K, L and M to the paper-book.
12. The petitioner further submits that the candidates non-
confirming the pre requisites which have been pointed out earlier
due to which additional selection list was drawn for interview
contains the names of non-eligible candidates mainly respondent
Nos.9 to 12. They appear in the final list and are selected. The
application dated 20th June, 2013, indicating the complete details
of irregularities of the candidates those who are not fulfilling the
pre requisites was submitted by the petitioner to the respondent
Nos.3 to 7 before issuance of the appointment order to the
selected candidate. A copy of the representation of the petitioner
dated 20th June, 2013, is annexed as Exhibit-N to the paper-book.
The selection of the Executive Engineer (Dist.) after the short
listing, the written examination, to the final stage is not
transparent and respondents appear to be concealing the genuine
meritorious candidates.
13. The petitioner further states that condition No.6.8 of the
advertisement No.10/2012 expressly mentions that the selection
of departmental candidates shall be subject to verification of
disciplinary action , vigilance enquiries in process / completed
and other service records. However, candidates, namely, Mr.
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Sherekar S.N., Mr. Bhise K.P., Mr. Chitale S.N., Mr. Damse C.S.
and Mr. Salunkhe have committed number of irregularities and
hence facing/contemplating disciplinary action. As such in
absence of the transparency in publishing merit list from time to
time, the selection of these candidates is against the existing
rules and hence be quashed and cancelled. The departmental
regular promotion is not given to the candidates in MSEDCL if
departmental action is in process. However, the candidates
facing disciplinary action have been selected under direct
recruitment. The various irregularities appearing in the select
list were brought to the notice of the respondent Nos.1 to 3 on
25th August, 2013, by the petitioner and also by other listed and
not listed candidates. A copy of the representation of the
petitioner dated 25th August, 2013, along with the status report of
disciplinary actions against the selected candidates is annexed as
Exhibit-O to the paper-book.
14. The petitioner submits that he reproduced Correction Slip
41 dated 15th February, 2013, to Classified & Recruitment
Regulation to form selection committee for reviewing and
deciding the seal cover of cases of employees who have been
selected for promotion / under direct recruitment irrespective of
exoneration / punishment imposed on the employees whose
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disciplinary action cases have been finalised; (1) state seniority
posts; (2) ED (HR); (3) one functional member of the CSC.
However, the petitioner submits that the said list of candidates
who were selected inspite of the charges pending against them
was not sent to the Review Committee as per the provisions
prescribed above. The petitioner further submits that the
respondent authority has urgently made appointment order and
simultaneously asked to relieve the candidates on the same day.
Copies of the Correction Slip and the order dated 4 th July, 2013,
respectively are annexed as Exhibits - P and Q to the paper-book.
15. The petitioner submits that he raised his voice against these
irregularities vide his application dated 25th August, 2013, and
thereafter the appointment order of some candidate has been
cancelled and simultaneously kept in sealed cover vide Order
No.319 dated 30th September, 2013, which is self contradictory.
The petitioner further submits that the act of the said
cancellation of orders stating that the appointment of candidates
are cancelled and on the other hand in the same order mentioning
that the case has transferred to seal cover also shows patently
irregularities/illegalities committed at the time of correcting the
erroneous appointments. A copy of the order dated 30 th
September, 2013, is annexed and marked as Exhibit-R to the
paper-book.
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16. The petitioner submits that the respondent No.9 Mrs.
Subhangi Digamber Harmalkar is selected and appointed as
Executive Engineer (Dist.) under Horizontal Reservation of OBC
category, although not complying with the work experience as
declared in the advertisement 10/2012. She joined the MSEDCL
on 7th October, 2003, as a Junior Engineer. After that in the
direct recruitment of Deputy Executive Engineer she was
selected and appointed to MSEDCL on 15 th April, 2010 and
serving in the MSEDCL. The experience required as per the
advertisement 10/2012 is 9 years experience in power sector as
on 15th December, 2012. She was on study leave vide order
No.109 dated 15th June,2006, for 15 months. Considering her
study leave, her requisite experience for the advertised post is of
7 year 11 months 8 days. As such, she is ineligible for
appointment as Executive Engineer (Dist.). Inspite of the above,
she was selected and appointed for the post of Executive
Engineer. A copy of the study leave order dated 15 th June, 2006,
is annexed as Exhibit-S to the paper-book.
17. The petitioner further submits that in the advertisement it
is specifically mentioned that candidates should produce current
year's Non-Creamy Layer Certificate, if not attached with the
application, then, at least at the time of interview. However, in
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respect of the above candidate the certificate was not even
produced at the time of interview, but produced thereafter.
Inspite of the said facts, she was selected and appointed by the
respondents for reasons best known to them. A copy of the said
certificate obtained under the Right to Information Act is
annexed as Exhibit-T to the paper-book. A copy of the service
regulation of MSEDCL in respect of the study leave is annexed as
Exhibit-U to the paper-book.
18. The petitioner states that respondent No.10 Mr. Sanjay
Manohar Wakade is selected and appointed as Executive
Engineer (Dist.) under Vertical Reservation of OBC category,
although not fulfilling the prerequisite as declared in the
advertisement 10/2012. Respondent No.10 had joined MSEDCL
on 11th July, 2006, as an Assistant Engineer. He was on study
leave vide order No.HRD/MDI/PGDBM/2487 dated 8 th June,
2007, for 15 months. After that, he is selected as a Management
Trainee from 1st September, 2009 to 31st August, 2011 by
MSEDCL order No.306 dated 24th August, 2011. After completion
of the training, he was absorbed as a Deputy Executive Engineer
(Dist.) from 12th September, 2011, and placed in the seniority list.
Thus, his study leave period of 15 months and two years of
management training period needs to be discounted from his
work experience as below:
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A. Mr. S.M.Wakade has joined as Deputy Executive
Engineer on 12th September, 2011, did not complete
two years as 15th December, 2012.
B. He was Management Trainee for period of two
years with effect from 1st September, 2009 to 31st
August, 2011, which is not to be considered as work
experience.
He was on study leave for a period of 15 months with
effect from 14th July, 2007 to 3rd November, 2008
which also is not to be considered as work experience.
Actual experience in the post of Assistant Engineer
with effect from 29th July, 2006, to 13th July, 2007,
i.e. less than one year.
19. The petitioner states that as such, the respondent No.10 is
not having experience of 9 years as per prerequisites in the
advertisement but he was selected and appointed. Copies of the
study leave, order of management trainee and clarification of
management trainee scheme are annexed as Exhibit-V to the
paper-book.
20. The petitioner then submits that the respondent No.11
Mr.Kundan Pandurang Bhise, who does not satisfy condition
No.6.8 of the advertisement No.10/2012 is shortlisted and
appointed as Executive Engineer (Dist.). The departmental
disciplinary action was ongoing at the time of his name
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declaration in final select list and still in progress. In spite of the
above fact he was appointed as Executive Engineer
(Distribution). After the petitioner brought this irregularity to
the notice of the respondent, respondent Nos.3 to 7 cancelled the
appointment and on the other hand in the same order mentioned
that the case has been transferred to seal cover. This act also
shows the patent illegalities or irregularities committed at the
time of correcting the erroneous exercise. The petitioner further
submits that thereafter the respondent Nos.3 to 7 should have
given priority to the down below candidates, however, the same
was not done by the respondent Nos.3 to 7.
21. The petitioner further submits that the respondent No.12 is
having three charge-sheets issued by the authority and out of
which in two charge-sheets, he was punished. In spite of the said
fact, he was selected and appointed to the post of Executive
Engineer (Dist.) mentioned in Exhibit-Q.
22. It is on the above allegations and the grounds set out in
para 24 that the petitioner alleges gross illegalities and serious
irregularities in the selection process.
23. An affidavit in reply has been filed by the contesting
respondent-MSEDCL to this petition, in which, it is stated as
under:-
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"3.1) I say that in October, 1986, the Petitioner joined the
erstwhile Maharashtra State Electricity Board as a Junior
Engineer. I say that in the year 2004, Petitioner was
promoted to the post of Assistant Engineer. I say that
pursuant to the Scheme framed in accordance with the
proviso of Section 131 of the Electricity Act, 2003, the
Distribution undertaking of erstwhile MSEB was taken over
by MSEDCL. I say that the Petitioner's services continued
with MSEDCL.
3.2) I say that in October, 2012, MSEDCL had published an
advertisement for filling up various posts under direct
recruitment including the post of Executive Engineer
(Distribution). The Petitioner applied for the post of
Executive Engineer (Distribution) under direct recruitment.
I say that Twelve (12) posts were available for direct
recruitment in respect of Executive Engineer (Distribution),
out of which One (1) was reserved for SC Category, Four (4)
post for ST Category, One (1) post for VJA Category, One (1)
post for NTB Category, Four (4) post for OBC Category and
One (1) post was available for Open Category. I say that the
Petitioner applied under the OBC Category. I say that the
Written Examination for the post of Executive Engineer
(Distribution) was conducted on 13.01.2013.
3.3) I say that the selection was carried out by an
independent agency namely IBPS. I say that the Petitioner
was called for interview along with other qualified candidates
after Written Examination. I say that after interview the list
of selected candidates for the post of Executive Engineer
(Distribution) as well as other post was published. I say that
accordingly Twelve (12) candidates were selected for the
post of Executive Engineer (Distribution) and Seven (7)
candidates were kept on waiting list. The said Select List is
annexed at Exhibit "J" to the above Petition.
3.4) I say that as per the procedure the Recruitment Agency
had included names of all the selected candidates in the select
list irrespective of any ongoing disciplinary action against
any of the candidates. I say that verification of service
details was to be carried out after receipt of Selection List.
3.5) I say that the Appointment Order was issued to various
selected candidates. I say that the Appointment Order was
issued on 04.06.2013 and the selected candidates were
directed to relieve on or before 12.06.2013. I say that there
is no merit in the contention of the Petitioner that the
Respondents had made the appointment urgently and had
simultaneously asked the selected candidates to be relieved
on the same day.
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3.6) I say that the process of cancellation of Appointment
Order and keeping them in the seal cover was not solely
influenced by the Complaint of the Petitioner. I say that the
process of verification of the service details was started
before receipt of the Complaint of the Petitioner. I say that
after verification of service details, the Appointment Orders
of some of the selected candidates were cancelled as per the
Rules and their cases were kept in the sealed cover for the
purpose of following the sealed cover procedure as per
Regulation 29 of the MSEDCL (Classification and
Recruitment) Regulations, 2005. The said order of
cancellation of appointment has been annexed at Exhibit "R"
to the above Petition.
3.7) I say that in Paragraphs 20 to 23, the Petitioner has
raised the question about eligibility of the Respondent nos.9
to 12 for the post of Executive Engineer (Distribution). I say
that there are no merits in the said contentions and all the
candidates were fulfilling the eligibility criteria for the post of
Executive Engineer (Distribution). The table below details
the eligibility criteria vis-a-vis the said four Respondents.
Sr. Criteria as per Particulars of selected
Remarks
No. Advt. candidates
1 Qualification:- Smt. Shubhangi All
Bachelor's Degree Harmarkar candidates
in Electrical BE (Electronics) are fulfilling
Engineering / PGDBM the required
Technology criteria
Wakade Sanjay Manohar
BE (Electronics)
PGDBM
Kundan Bhise
BE (Electronics)
M. Tech.
MBA
Sherkar Sukhdeo
BE (electronics)
MBA (Marketing)
2 Experience:- Smt. Shubhangi All
9 Years of Harmarkar candidates
Experience in Total Exp: 9 yrs. & 4 Months are fulfilling
Power Sector out As Dy. EE 2 Yrs. & 9 Months the required
of which at least 5 criteria
Wakade Sanjay
years in the area
Manohar
of Power
distribution as Dy. Total Exp: 15 yrs. & 4
EE & Asstt. Months As Dy. EE 1 Yrs. &
Engineer or 2 3 Months
As AE - 5 Yrs & 2 Months
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years as Dy. Ex. Kundan Bhise
Engineer. Total Exp: 18 yrs. & 8
Months
As Dy. EE 1 Yrs. & 2
Months
As AE - 8 Yrs. & 0 MOnths
Sherkar Sukhdeo
Total Exp: 13 yrs. & 4
Months
As Dy. EE 6 Yrs. & 4
Months
3 Age limit as on Smt. Shubhangi All
15.12.2012:- Harmarkar(OBC candidates
40 Years Age Category) are fulfilling
Limit relaxable 34 Yrs. & 8 MOnths the required
by 5 years for Wakade Sanjay criteria
candidates Manohar
belonging to (OBC Category)
Backward Class 42 Yrs. & 1 Months
Class.
Departmental Kundan Bhise
candidates upper (OBC Category)
Age limit is 57 47 Yrs. & 11 Months
years. Shekhar Sukhdeo
(OBC Category)
38 Yrs. & 1 Months
3.8) ..... It is submitted that none of the prevailing
Rules/Regulations of MSEDCL expressly provide that study
leave period would be excluded from the experience period to
be considered for the purpose of eligibility. Hence, in absence
of any such provisions the MSEDCL treats these period as
continuous working period and included as work experience
as per Rules. .....
3.9) I say that the Petitioner has raised objection to the
appointment of the Respondent No. 10, Shri. Sanjay Manohar
Wakade in Paragraph 21 of the Petition contending therein
that he was Management Trainee for the period of 2 years
and on study leave of period of 15 months. I say that as
pointed out in preceding paragraph that none of the
prevailing Rules/Regulations of MSEDCL expressly provides
that study leave period would be excluded from the
experience period to be considered for the purpose of
eligibility. Hence, in absence of any such provisions the
MSEDCL treats these period as continued working period and
included as work experience as per Rules. Hence, Shri.
Sanjay Wakade is eligible for appointment under direct
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recruitment as he has more than 2 years' experience as
Deputy Executive Engineer.
3.10) I say that the Petitioner has raised objection to the
appointment of the Respondent No. 11, Shri. Kundan
Pandurang Bhise in Paragraph 22 of the Petition. I say that
the appointment of Shri. Bhise has already been cancelled
vide order dated 30.09.2013 and the selection is kept in seal
cover and seal cover procedure will be followed as per
Regulation 29 of MSEDCL (Classification and Recruitment)
Regulations, 2005. The said order dated 30.09.2013 has
been annexed at Exhibit "R" to the above Petition.
3.11) I say that the Petitioner has raised objection to the
appointment of the Respondent No. 12, Shri. Sukhdeo
Narayan Shekar in Paragraph 23 of the Petition contending
therein that 3 Charge Sheets have been issued to him out of
which he was punished in respect of 2 Charge Sheets. It is
submitted that all the disciplinary action cases against Shri.
Sherkar were finalised at the time of issuing the appointment
order. Hence, as per Rules he was eligible for the
appointment under direct recruitment."
24. The petitioner has purported to deal with this affidavit in
reply by filing a rejoinder. In the rejoinder, the petitioner more or
less repeats and reiterates the contents of and the averments in
the writ petition. In paragraph 4 of the affidavit in rejoinder, the
petitioner states that he has impleaded all necessary parties as
respondents to this petition. However, he maintains that since he
belongs to Other Backward Category (OBC), therefore, OBC
candidates are made parties to this writ petition. He submits that
the petition cannot be dismissed on any technical ground.
Secondly, he submits that respondent-MSEDCL has not adhered
to the rules and regulations while effecting the promotions.
J.V.Salunke,PA
Judgment-WP.857.2014.doc
25. A perusal of the rest of the sub-paras of para 4 would reveal
that the petitioner reiterates his allegations in the writ petition
and alleges gross irregularities and illegalities in the selection and
appointment process.
26. We have, with the assistance of Mr. Kanade and the counsel
appearing for the respective parties, carefully perused the writ
petition and its annexures and the affidavits. We have also
perused the representation by the petitioner dated 20 th June,
2013, copy of which is at Exbibit 'N' at page 64 of the paper book.
The petitioner has thanked the Managing Director of the
respondent for considering his earlier representation dated 22 nd
March, 2013. He also proceeds to allege that the candidates
Wakade Sanjay Manohar and Shubhangi Digambar Harmalkar
were not qualified as they do not possess the required work
experience. The non-qualifying candidates selected for the post of
Executive Engineer (Distribution) ranked as Sr. Nos. 5 and 6,
according to the petitioner, do not possess minimum 9 years
experience in power sector. Both Wakade Sanjay and Shubhangi
Harmalkar have to possess at least 5 years work experience in
the area of power distribution as Deputy Executive Engineer and
Assistant Engineer or 2 years experience as Deputy Executive
Engineer. Being a direct recruitment, according to the petitioner,
J.V.Salunke,PA
Judgment-WP.857.2014.doc
experience denotes working experience and not a period of study
leave. Mr.Kanade, appearing for the petitioner highlights this
aspect of the matter regarding the two candidates. He has
submitted that Wakade Sanjay was on study leave for 15 months
with effect from 14th July, 2007 to 3rd November, 2008, which
does not amount to work experience. Similarly, Shubhangi
Harmalkar was on study leave for two years. Therefore, she
completes less than 7 years experience in power sector.
27. On the other hand, inviting our attention to the affidavit in
reply, it is submitted by Mr. Chavan that the allegations with
regard to these two candidates are totally incorrect. It is
submitted that both are highly qualified as they hold Bachelors
Degree in Engineering (Electronics). The total experience of
Shubhangi Harmalkar is 9 years and 4 months and as Deputy
Executive Engineer 2 years and 9 months. The total experience
of Sanjay Wakade is 15 years and 4 months and as Deputy
Executive Engineer as 1 year and 3 months and as Assistant
Engineer it is 5 years and 2 months. The advertisement
stipulated the work experience and having found that there was
complete transparency in the process, the petitioner also
participating in the same, it is improper on his part to allege any
irregularities or illegalities.
J.V.Salunke,PA
Judgment-WP.857.2014.doc
28. We are concerned with a direct recruitment and not
promotion. We will focus only on the same. After perusal of the
relevant criteria as enumerated in the advertisement, copy of
which is at Exibit 'D' at page 26 of the paper book, what we have
noted is that Executive Engineer (Distribution) is the post, to
which the petitioner stakes his claim. He has enumerated in the
petition as to how he was one of the candidates and in the process.
The post is Executive Engineer (Distribution). The requirement
is Bachelors Degree in Electrical Engineering/Technology. The 9
years experience in power sector is the experience criteria. Out
of this, at least 5 years in the area of power distribution as Deputy
Executive Engineer and Assistant Engineer is required or 2 years
as Deputy Executive Engineer. As is apparent in the case of both,
Mr. Wakade and Ms. Harmalkar, Mr. Wakade had worked as
Deputy Executive Engineer. On 12 th September, 2009, he has
also an experience as Assistant Engineer from 29 th July, 2006 to
13th July, 2007. The petitioner does not dispute that 9 years
experience in power sector is the broad criteria for experience,
out of which, at lease 5 years in the area of power distribution as
Deputy Executive Engineer and Assistant Engineer. If what is
alleged by the petitioner is correct, then, Mr. Wakade has worked
as Deputy Executive Engineer and prior to that, he was an
Assistant Engineer. This experience, together with the period on
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Judgment-WP.857.2014.doc
which he was on study leave has been reckoned and as far as Ms.
Harmalkar is concerned, the petitioner concedes that she
completed 2 years experience in the post of Deputy Executive
Engineer. She had joined the erstwhile MSEB on 7 th October,
2002 as Junior Engineer. However, she was on study leave for
two years, as such she completed less than 7 years experience in
power sector. What is required is 9 years experience in power
sector, out of which, at least 5 years in the area of power
distribution as Deputy Executive Engineer and Assistant
Engineer or 2 years as Deputy Executive Engineer. Whichever
way we look at this stipulation, we do not think that the
respondents were in error or they acted arbitrarily in selecting
the two candidates. The explanation provided in the affidavit and
particularly with regard to these candidates is not vitiated by any
perversity or any error of law apparent on the face of the record.
We do not see any justification for the complaint of the petitioner,
inasmuch as in para 3.8 of the reply affidavit, the respondents
have clarified that Ms. Harmalkar was deputed by the
respondents themselves to undergo the 15 months' Executive
Post Graduate Diploma in Business Management-Energy
Management as a specialisation in power distribution at
Management Development Institute Gurgaon after passing the
qualifying examination. The applicable rules and regulations of
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Judgment-WP.857.2014.doc
the MSEDCL, do not contemplate exclusion of the study leave
period for reckoning and computing the total experience. That is
why that period spent on study leave so as to acquire higher
training has been taken into consideration. We do not think that
such an approach of the respondents can be faulted. It is a
possible way of construing and interpreting the requirement of
work experience as stipulated in the advertisement. Similarly,
with regard to Mr. Wakade, it is pointed out by the respondents
that his study leave period was also reckoned and taken into
consideration while computing the work experience. The
explanation in para 3.9 of the reply affidavit with regard to Mr.
Wakade enables us to conclude that he was also eligible for
appointment under direct recruitment as he has more than 2
years' experience as Deputy Executive Engineer.
29. The mistake with regard to another candidate Mr. Kundan
Pandurang Bhise has already been corrected by the respondents,
as pointed out in para 3.10 of the affidavit in reply.
30. Once the settled parameters for interfering in writ
jurisdiction are not attracted in the facts and circumstances of
the present case, then, we do not find any merit in the writ
petition. It is, accordingly, dismissed, but without any order as to
costs.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
