Bombay High Court
Shri. Suhas Sudhakarrao Lavhekar ... vs The Maharashtra Public Service ... on 4 May, 2017
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
(CIVIL APPELLATE JURISDICTION)
WRIT PETITION NO.6637 OF 2014
1 Shri Suhas Sudhakarrao Lavhekar,
Age: 34 years,
Residing at Building No.14,
Flat No.303, Vijay Park,
Kasarvadvli, Ghod Bunder Rd.,
Thane 400 615
2 Shri Pankaj Kisan Chatki
Age: 33 years,
R/o C/o Khushab Rao More,
Near Sukh Sagar Apartment,
Chuhan Colony, Sarkar Nagar,
Chandrapur 442 401
3 Shri Someshwar Dashrath Navhat
Age: 34 years,
R/o 7A Bhaktivinod Apartments
Vrindawan Colony,
General Vaidya Nagar,
Poornima Stop, Nashik 422 011
4 Shri Vijay Vitthalrao Chandankar
Age: 34 years,
R/o Bageshri, M-8-4, V.H. Society
Yawatmal Petitioners
Versus
1 The Maharashtra Public Service
Commission,
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through its Secretary, having office at
3rd Floor, Bank of India Building,
M.G. Road, Hutatma Chowk,
Mumbai 400 001.
2 The State of Maharashtra
through the Secretary
Medical Education & Drugs Department,
Mantralaya, Mumbai
3 The Commissioner,
Food & Drugs Administration,
Survey No.341, Bandra Kurla Complex
Bandra (E), Mumbai 51
4 Mrs. Lorna Dorothy Pinto
working as Drugs Inspector at Pune
R/o 7, Flaming C.H.S.
1 Domnic Colony, Orlem
Malad, Mumbai 400 064
5 Miss Ashwini Annasaheb Pawar
working as Analytical Chemist,
R/o B 297/2, Govt. Colony,
Bandra (E) Mumbai 400 051
6 Shri Rajendra L. Patil,
working as Drugs Inspector at Thane
R/o 11, Narmada Building,
Mukund Society, Anand Park,
Near Vrindavan, Thane (W) 400 601
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7 Shri Rajesh P Choudhari
working as Drugs Inspector at Thane
R/o 301, Tirupati Apt
Opp Oswal Park, Pokharan Rd No.2
Thane (W) 400 601
8 Mr. Mahesh Ashok Gadekar
9 Mr. Ashok Tukaram Barde
10 Mr. Milind Krushnarao Kaleshwarkar
11 Mr. Mahesh Vinayakrao Deshpande
12 Mr. Ganesh Ramchandra Rokade
13 Mr. Shyamsunder Vaijanath Pratappawar
14 Mr. Rohit Shankar Rathod
15 Mr. Umesh Bhaurao Gharote
(Addresses of these respondents are not
known, when the said is supplied by
MPSC, they will be served. ) Respondents
WITH
WRIT PETITION NO.6666 OF 2016
Shri Rohit Shankar Rathod Petitioner
versus
The Maharashtra Public Service Commission
through Secretary And Ors Respondents
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WITH
WRIT PETITION NO.277 OF 2015
Mahesh Ashok Gadekar Petitioner
versus
The Maharashtra Public Service Commission
through Secretary And Ors Respondents
WITH
WRIT PETITION NO.7034 OF 2016
Shri Kautik Dasharath Shirole Petitioners
versus
The Maharashtra Public Service Commission
through Secretary And Ors Respondents
-------------
Mr. P.V. Thorat with Ms. Pooja Thorat advocates for petitioner in W.P.
No.6637/2014
Mr. N.P. Dalvi advocate for respondent No.1
Mr. A.P.Shinde advocate for petitioner in W.P.No.7034/2016
Mr. C.P. Yadav, Assistant Government Pleader in all the matters.
_______________
CORAM : R.M. BORDE &
A.S. GADKARI, JJ
Reserved on : 28.2.2017.
Pronounced on :4th May 2017
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JUDGMENT
(Per: R.M. Borde, J)
1] Heard.
2] Rule. With the consent of the parties, petitions are taken
up for final disposal at admission stage.
3] The petitioners are objecting to the Judgment and order
passed by the Maharashtra Administrative Tribunal (herein after
referred to as 'MAT' for the sake of brevity) dated 1.4.2014 in
Original Application No.820/2013. The petitioners are also
seeking direction to respondent Nos.2 to issue letters of
appointment to them. During pendency of the petitions, process
for selection of the candidates was pursued by the Maharashtra
Public Service Commission ( herein after referred to as 'MPSC'
for short) afresh and a list of selected candidates is declared on
18.3.2016. The petitioners are praying for quashment of the said
selection list dated 18.3.2016 as a consequence of quashment of
the order passed by the MAT.
4] The petitioners are the candidates selected by MPSC and
their names have been recommended for appointment to the
post of Assistant Commissioner (Drugs). The petitioner No.1 and
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3 are selected as against unreserved vacancies, whereas
petitioner No.2 belongs to other backward class (OBC) category
and petitioner No.4 is selected from amongst Scheduled Caste
(SC) category.
5] An advertisement for selection of 12 candidates for the
post of Assistant Commissioner (Drugs) was issued by
respondent No.1 MPSC on 4.1.2012. Out of 12 posts, seven
posts are prescribed for open category and from amongst open
category candidates, two posts are prescribed for women and
one for sports category person. Thus there is horizontal
reservation for three posts from amongst open category. One
post is earmarked for SC category, whereas two posts were
reserved for scheduled tribe (ST) category. From amongst
aforesaid categories, one post is earmarked for ST (women)
category, one post is earmarked for VJ(A) category, whereas
another post is earmarked for OBC category. The State of
Maharashtra has published Rules framed in exercise of powers
conferred under Article 309 of the Constitution of India,
regulating recruitment to the posts of Joint Commissioner
(Drugs) Group A, Assistant Commissioner (Drugs) and Drugs
Inspector Group B in the Food & Drugs Administration under
Medical Education & Drugs Department of the Government of
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Maharashtra. These Rules are called 'Joint Commissioner(Drugs),
Assistant Commissioner (Drugs) & Drugs Inspector in the Food &
Drugs Administration, Maharashtra State (Recruitment) Rules,
2002'. Rule 4 prescribes procedure, qualification and experience
for appointment to the post of Assistant Commissioner (Drugs)
in the Food & Drugs administration Department which reads
thus:-
" 4. Appointment to the post of Assistant
Commissioner (Drugs) in the Food & Drugs
Administration, shall be made either:-
(A) by nomination of a suitable person, on the basis
of seniority-cum-merit from amongst the persons
holding the post of Drugs inspector in the Food and
Drugs administration, having not less than three
years regular service in that post; or
(B) by nomination from amongst the candidates
who, -
(a) unless already in the service of
Government, are not more than 40 years of age and
(b) possess qualification and experience
prescribed for as under:-
(i) degree in Pharmacy or Pharmaceutical
Chemistry or in Medicine with specialisation in
Clinical Pharmacology or Microbiology from a
University established in India by law; and
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(ii) experience gained after acquiring above
qualification in the manufacture or testing of drugs or
enforcement of the provisions of the act for a
minimum period of five years, and
(c) have adequate knowledge of Marathi so
as to be able to speak, read write Marathi with
facility:
Provided that, preference may be given to
candidates having a post graduate degree in any one
of the subjects mentioned in sub-clause (b)(i) of
clause (B) of this rule, or degree in law or research
experience in the synthesis and testing of drugs or
practical experience in the manufacture of drugs or
both:
Provided further that, the age limit may be
relaxed in the case of candidates who possess
exceptional qualification or experience or both. "
6] The MPSC has published Rules of Procedure 2005. Rule 7
relates to mode of recruitment, which provides that Commission
(MPSC), on receipt of requisition from the Government in respect
of posts to be filled-in by nomination, shall adopt any of the
following methods for recruitment viz. (i) competitive
examination (ii) direct recruitment and (iii) competitive
examination may also be held limited to the departmental
candidates only. So far as direct recruitment is concerned, sub-
rule (ii) of Rule 7 provides that it shall consists of any one of the
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followings:-
(i) By interviews only when the number of eligible
applicants is within the proportion prescribed under
the provision of Rule 9(i)(ii),First by shortlisting
candidates by applying criteria and thereafter by
interview of shortlisted candidates and
(iii) by holding screening test of eligible candidates
for shortlisting candidates based on their merit of
screening test and interview of such shortlisted
candidates.
Rule 9 provides that in case of direct recruitment,
proportion to be maintained for short listing eligible candidates
for interview and it prescribes that if posts advertised are 11 or
more, the proportion of candidates to be called for interview
shall be three times the number of posts to be filled-in. By virtue
of amendment enforced on 17.11.2011, clause (1) of Rule 9 of
the Rules has been substituted with following clause:-
" Number of candidate to be shortlisted for interview shall
be three times the number of vacancies in the respective cadres.
However, for the post having pay band (iv) and above, as per the
6th pay commission, the Commission may decide from time to
time the number of candidates to be called for interview."
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Sub-clause (iii) of Rule 9 provides that in case of response
exceeding the proportion laid down in rule 9(i), the Commission
may apply criteria for shortlisting of candidates. The criteria may
pertain to preferential academic qualification or preferential
experience as prescribed in the Notification issued by the
Commission in this Regard. If however, no such criteria is
prescribed in the Notification, the Commission may, depending
upon the response have to adopt any other suitable criteria for
shortlisting the candidates for interview. Rule 9(iii) provides, if
the response to the advertisement is disproportionately large
and where the application of such a criteria may not enable the
Commission to shortlist candidates for interview, the
Commission may decide to hold screening test, based on merit
of the performance in such test, the candidates will be
shortlisted, the proportion being the same as mentioned in Rule
9(i) above.
7] The MPSC, noticing that the response to the advertisement
issued for filling vacancies of Assistant Commissioner (Drugs)
was disproportionately large, decided to hold a screening test for
shortlisting the candidates on the basis of performance in the
screening test. In all 33 candidates were called for interview.
One more candidate was added at a later stage in view of the
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direction. Thus, there were 34 candidates interviewed for 12
posts. There are several objections raised by the unsuccessful
candidates in the original application presented to MAT. The
defects those were pointed in the process of selection by the
original applicants were thus:-
(i) MPSC did not verify the eligibility of the candidates before
allowing them to participate in the screening test. The
candidates who were shortlisted did not fulfill the eligibility
criteria.
(ii) Documents were verified only before conducting of
interview. It is claimed that out of 33 candidates, six candidates
were found ineligible and only 29 candidates were interviewed
for 12 posts. According to the petitioners, 36 candidates ought
to have been called for interview and should have been short
listed.
(iii) It is contended that MPSC declared initially that the marks
obtained at the written test would be counted, which was
contrary to the procedure, whereas later-on, the Commission
decided not to count such marks. Some of the candidates did
not fulfill eligibility requirements. The candidates who possessed
the experience in testing laboratories did not have the
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experience in manufacturing of products as required under the
Rules.
(iv) Candidate selected from amongst female SC category is
not eligible to be appointed as against female open category and
as such, the selection process is vitiated on account of the
defects.
In nutshell, it is the contention of the original applicants
that MPSC has violated its own rules and procedure in respect of
screening test and the proportion for number of candidates to be
called for interview. The provisions of the Government Resolution
dated 16.3.1999 regarding horizontal reservation have been
grossly violated while preparing select list. The list is also
objected on the ground that the selected candidates did not
possess requisite experience mandated under the Rules as well
as under the Advertisement issued by MPSC.
8] So far as fulfilling of criteria of experience is concerned, it
was the contention of the original applicants that the candidate
shall have experience gained after acquiring qualifications, in the
manufacturing or testing of drugs or enforcement of the
provisions of the Act for a minimum period of five years. It is
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contended that the term 'manufacture' is defined in section 3(f)
of the Drugs & Cosmetics Act, 1940 as below:-
" (f) "manufacture" in relation to any drugs (or
cosmetic) includes any process or part of a process
for making, altering, ornamenting, finishing,
packing, labeling, breaking up or otherwise treating
or adopting any drug or cosmetic with a view to its
sale or distribution but does not include the
compounding or dispensing of any drug or the
packing of any drop or cosmetic in the ordinary
course of retail business and to manufacture shall
be construed accordingly" (emphasis added). "
9] It is contended that the experience in respect of
manufacturing of drugs shall be within meaning of definition as
provided under section 3(f) of the Drugs & Cosmetics Act, 1940
and the experience in testing of the drugs also shall have a
nexus with the manufacturing process. The testing of the drugs
is for the purpose of manufacturing and merely the work
experience in the research laboratories where the process of
manufacturing is not carried-out would not be relevant. It is
contended that some of the selected candidates did not have
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experience in manufacturing and testing of the drugs and as
such were ineligible to participate in the process of selection. It
is contended that, the provision is made to ensure that the
testing of manufactured drugs is done by an unit, not part of the
manufacturing unit to ensure independence of testing unit so
that the said unit can ensure quality, purity and strength of the
manufactured products.
10 It is contended that the job of the Assistant Commissioner
(Drugs) includes enforcement of provisions of the Drugs and
Cosmetics Act and as such, a proper interpretation must be put
to the provisions, providing for qualification requirement which
shall have relevance to the functions required to be performed
by the Assistant Commissioner (Drugs). It is contended that the
experience gained by some of the candidates in Research &
Development Laboratories cannot be treated as relevant
experience. According to the original applicants, no product
manufactured for examination, test or analysis in an
establishment, having license in Form 29 can be sold or
distributed except at the place specified in the license only. It is
contended that license in Form No.29 is issued under Rule 89 of
the Drugs & Cosmetics Rules. The experience gained by some of
the selected candidates at laboratories cannot be considered
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because their experience relates to clinical tests and the license
to such Laboratories did not permit manufacturing of drugs. It is
contended that the scheme of the Drugs and Cosmetics Act 1960
and the Drugs & Cosmetics Rules, 1945 deal with manufacturing
of two types: (a) manufacturing for sale and distribution and (b)
manufacturing in small quantity for examination, test or
analysis. The relevant experience is the experience of
manufacture for sale or testing of drugs approved for general
use.
11 The Tribunal, while dealing with the issue has completely
lost sight of proviso to rule 4(B)(b)(ii) which reads thus:-
" experience gained after acquiring above
qualification in the manufacture or testing of drugs
or enforcement of the of the provisions of the Act
for a minimum period of five years, and . ."
Provided that preference may be given to the candidates
having post graduate degree in any one of the subjects
mentioned in sub-clause (b)(i) of clause B of these Rules or
degree in law or research experience in the synthesis and testing
of drugs or practical experience in the manufacture of drugs or
both. The original applicants have linked the research experience
with manufacturing of drugs.
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The whole argument is founded on misinterpretation of the
provisions of Rule 4. It is to be noted that sub-rule (ii) or Rule
4(B)(b) mandates experience gained after acquiring qualification
in the manufacturing or testing of drugs or enforcement of the
provisions of the Act for a minimum period of five years.
However, proviso mandates that a candidate having research
experience in the synthesis and testing of drugs or practical
experience in the manufacture of drugs deserve to be given
preference. To deny an opportunity to the candidate who does
possess a research experience in synthesis and testing of drugs
on the ground that such research experience in synthesis and
testing of drugs cannot be linked with manufacturing, would be
perverse interpretation. When a candidate having research
experience needs to be preferred in view of proviso, he cannot
be denied opportunity by misinterpreting sub-rule (ii) of Rule
4(B)(b) in isolation. Apart from this, it must be understood that
the research work carried out in well-reputed laboratories is for
the purpose of manufacturing drugs. It also must be noticed that
in order to assess the qualification requirement of the candidate
and more specifically as regards the experience in research
laboratories, a committee of four experts headed by the Joint
Commissioner (Vigilance) was constituted. The committee
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verified the certificates of the candidates and submitted its
report. Committee opined that one of the selected candidates
Smt. Pramila T. Shinde was working with M/s Cipla Limited as
well as M/s Vijay Medical Stores. She tried to mislead MPSC by
suppressing the fact and as such, the committee recommended
to take appropriate action against the candidate. The said
candidate Smt. Pramila Shinde was disqualified on account of
production of fake certificate during interview. The experts'
committee has scrutinized the certificates and considered the
aspect of experience. There is no reason for this Court to take
different view since the expert's committee has considered the
issue of qualification and since it is noticed that there does not
appear to be any deviation from the prescription of rules, there
is no reason for the Court to take a different view and cause
interference in the matter. The finding recorded by the Tribunal
in regard to experience gained by the candidates in research
laboratories being not within contemplation of the Rules, is
devoid of merit and the said finding does not deserve to be
upheld.
12 The MAT has recorded the finding that the MPSC has not
adhered to procedure prescribed under the Regulations. The
selection process was objected on the ground that the MPSC is
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not consistent in its stand as to whether the marks obtained at
the screening test shall be computed while making final list. It is
contended that under the Regulations, marks obtained at the
screening test are not liable to be considered for the purpose of
preparation of final list. However, contrary to such prescription,
the MPSC took decision on 12.6.2012 that the final merit list of
successful candidates would be prepared on the basis of
combined marks in the objective test and marks in interview.
This, according to the original applicants is in violation of Rule
9(iv) of the MPSC Rules of Procedure 2005.
13 On-line screening test was declared on 12.9.2012 by MPSC
and it was held on 4.11.2012. The result of the screening test
was declared on 28.3.2013 and 33 candidates were short-listed.
Candidates were interviewed during 17.6.2013 to 28.6.2013.
MPSC has clarified its stand and has contended that though it
was initially decided to compute the marks of screening test,
realizing the mistake, corrective steps were taken. It is stated
that while finalizing list of selected candidates, the marks
obtained by the candidates at the screening test were not at all
considered. There is no prejudice caused to anybody and as
such, the objection raised by the original applicants does not
deserve consideration.
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14] Yet another objection is raised in respect of non-
observance of the proportion of number of candidates to be
called for interview. It is contended that proportion provided
under the Rules of Procedure framed by MPSC in respect of
calling the candidates for interview in commensurate with the
posts advertised, has not been adhered to. It is contended that
there were 12 posts advertised, whereas only 28 candidates
were interviewed. It is also contended that it was responsibility
of MPSC to ensure that only eligible candidates participate in the
screening test. There ought to have been a scrutiny of
documents to ensure whether candidate is eligible or not before
he is permitted to appear for screening test. It is noticed that
though there were 34 candidates called for interview, six were
found to be ineligible and as such were not allowed to participate
in the oral test. It is the contention of MPSC that there were
large number of applications received in response to the
advertisement. The candidates were directed to tender the
applications and furnish information on-line. On scrutiny of the
on-line applications, the candidates were permitted to appear for
screening test and before conduct of interviews, the documents
of the candidates were verified. There was no opportunity to
examine the documents before personal appearance of the
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candidates. Even otherwise, there is no prejudice caused to
either the original applicants or anybody else since no ineligible
candidate is permitted to participate in the process of interview.
The objection raised by the original applicants that the
respondent No.1 did not observe the provisions of the Rules
which prescribes calling at least 3 candidates for each post is
devoid of substance. It must be noticed that for four open
general category posts, 13 candidates were interviewed and for
two female open category posts, six candidates were
interviewed, likewise for one open sports category post, three
candidates were interviewed. Similarly, for one SC category post,
three candidates had participated in the process, whereas for ST
category, two posts were available and two candidates appeared.
For physically handicapped persons category post, three
candidates were interviewed, and one candidate participated in
the process. It is also worthy to note that no candidate is
selected from the sports category and from physically
handicapped category. The sports category post was added to
open general category, whereas for physically handicapped
category, one post from amongst open category is kept vacant.
The list of selected candidates show that Smt. P.T. Shinde, Smt.
Swapna Kamble were selected against two female open category
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posts. Smt. P.T. Shinde was found to be disqualified later-on. For
two posts of ST category, only one candidate was recommended.
Thus, the MPSC has recommended only ten candidates for 12
posts and did not recommend any candidate for one ST category
post and one physically handicapped category post. One post
from open category is kept vacant whereas one post from ST
category remained to be filled in. Thus it is clear that for filling
ten posts, 34 candidates participated in the process of selection.
Even assuming that six candidates were found to be ineligible,
the number of candidates interviewed is 28 which meets the
requirement. MPSC does have discretion to vary the proportion
for calling the candidates for interview depending upon the
response from the candidates. In the instant matter, there does
not appear to be any deviation from the regulations,
necessitating quashment of the whole process. The general
requirement of calling the candidates for interview by
maintaining the proportion has been fulfilled and we do not find
any serious infirmity on that count in the process of selection
necessitating to cause interference by the Tribunal.
15] The Tribunal has also noticed fault in recommending name
of Smt. Pramila Shinde as a open female category candidate. It
is recorded that MPSC should have prepared a select list of seven
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persons from open category since no candidate from horizontal
reservation for sports category was available, the post was
returned back to open general category. It is further recorded
that since the list of seven candidates did not have two open
female category candidates, the name of candidate at Sr. No.6
ought to have been deleted as the candidate at Sr. No.7 was
open female category candidate and name of another open
female category candidate ought to have been added. The
Tribunal has also objected for recommending name of Smt.
Sapna Surendra Kamble for the post meant for open female
category. According to the Tribunal, she being from reserve
category, her name can be considered only against SC female
category. It is also recorded in the Judgment that if, for the said
post, no suitable open category candidate was available, the post
should have been filled in by open general category candidate. It
is contended that the selection of open female category
candidate belonging to vertical reservation is illegal. Reliance is
placed on the Judgment in the matter of Rajesh Kumar Daria
versus Rajasthan Public Service Commission and others
(2007 (8) SCC 785) to conclude that the post earmarked for
horizontal reservation i.e. woman open category cannot be filled
in by offering it to a candidate belonging to vertical reservation
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i.e. SC woman. The view adopted by the Tribunal is erroneous
and is based on misreading of the Judgment of the Honourable
Supreme Court in Daria's case. So far as the objection to
selection of Smt. Pramila T. Shinde is concerned, the same does
not deserve consideration since the experts committee has found
her ineligible and the said candidate has already withdrawn
candidature. So far as the objection for recommending name of
Mrs. Sapna Kamble for women open seat is concerned, the issue
is no longer res-integra and has been dealt with by the division
bench of this Court in its Judgment on 30.3.2016 in the matter
of Asha Ramesh Gholap versus The President & Collector,
District Selection Committee, Beed and others being Writ
Petition No.3929 of 2015. The Division bench in an identical case
has observed in paragraph Nos.25 to 28 of the Judgment as
quoted below:-
" 25) The apprehension which was
expressed by the learned Counsel appearing
for the respondents that if the candidates
belonging to reserved class are permitted to
compete even for the posts notified for
general category, the persons belonging to
open category may lose their chances forever
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or for a long time to get the employment, is
totally untenable and unsustainable. As has
been observed by the Hon'ble Apex court in
the aforesaid judgments, the whole idea is
to see that minimum number of seats as
provided for are filled in by vulnerable
sections of the Society. However, there can
never be any constitutional or legal
objection if more members from those weaker
sections of the society get selected to the
posts on their own merit from the seats
meant for the open category.
26) It was sought to be canvassed on
behalf of the respondents that the principle
which is applicable to vertical (social)
reservations which permit the candidates
belonging to backward class to compete for
unreserved posts and if they are appointed
to the non-reserved post on their own merit,
their number is not to be counted against
the quota reserved for the respective
backward class, will not apply to
horizontal(special) reservations. It was
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further canvassed that for the ten posts
notified to be filled in by the candidates
belonging to open category in vertical
reservation, three posts out of the said ten
posts, are reserved to be filled in by women
candidates and thus it was the
horizontal(special) reservation provided for
the women candidates and as such, the said
posts were liable to be filled in only by
the women candidates belonging to open
category.
27) We find the argument advanced as
above to be fallacious. Once it is held
that general category or open category takes
in its sweep all candidates belonging to all
categories irrespective of their caste,
class or community or tribe, it is
irrelevant whether the reservation provided
is vertical or horizontal. There cannot be
two interpretations of the words `open
category'; one applicable for vertical
reservation and other for horizontal
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reservation. Reservation prescribed may be
`vertical' or `horizontal' if it relates to
open category, the candidate belonging to
backward class cannot be precluded from
competing for the said posts on their own
merit with rest of the candidates.
28) We have noticed that the law laid
down by the Hon'ble Apex court in the case
of Rajeshkumar Daria and Anil Kumar Gupta
(cited supra) is being mis-interpreted by
the Administrative authorities. In Rajesh
Kumar Daria's case, the Hon'ble Apex court
has discussed about horizontal (special)
reservation provided for women within the
social reservation for scheduled caste and
by giving an illustration, a conclusion is
recorded that the women selected on merits
within the vertical reservation quota will
be counted against horizontal reservation
for women. In Anil Kumar Gupta's case, the
Hon'ble Apex court has ruled that the
requisite number of special reservation
candidates shall have to be taken and
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adjusted/accommodated against their
respective social reservation categories by
deleting the corresponding number of
candidates therefrom. "
16] The view adopted by the tribunal in respect of offering seat
prescribed for horizontal reservation to a candidate claiming
vertical reservation is erroneous and there is no error committed
by MPSC in recommending the name of Mrs. Sapna Kamble who
has filled in her application as candidate belonging to SC
category vertical reservation.
17] The MAT has also directed quashment of clause No.4.2.8 of
the general guidelines issued by MPSC and clause 2(c), 1 and 2
of the Government resolution No.82/2001 dated 25.5.2001 being
unconstitutional. It must be noticed that there was no prayer
made by any of the petitioners for granting such declaration.
There is absolutely no discussion in the Judgment in support of
declaration as unconstitutional the aforesaid clauses of the
Government resolution and the guidelines issued by MPSC. It
was unnecessary for the Tribunal to consider the aspect which
was not subjected to challenge before it.
{28}
wp 6637.15 Bombay.odt
18] For the reasons recorded above, the Judgment and order
passed by the MAT on 1.4.2014 in O.A.No.820/2013 deserves to
be quashed and set aside and the same is accordingly quashed
and set aside. The necessary consequence of quashment of
order passed by the MAT shall follow. The petitioners and the
selected candidates are eligible for appointment to the post of
Assistant Commissioner (Drugs) and the MPSC shall forward
their names to the State and the State shall issue consequential
orders. It is informed that as a result of quashment of selection
process by MAT, fresh process was pursued. Fresh process
undertaken and concluded by MPSC is also a matter of challenge
in certain original applications pending before the MAT. The
Tribunal may take up those original applications for consideration
and may pass appropriate orders in consonance with the orders
passed in the instant writ petition.
19] Rule is accordingly made absolute.
20] In the facts and circumstances, there shall be no order as
to costs.
(A.S. GADKARI, J) (R.M. BORDE, J)
vbd
