Bombay High Court
The State Of Maharashtra Through ... vs Dharampal Murlidhar Barmase And ... on 27 September, 2017
Bench: V.K. Tahilramani
jdk 1 2.cwp.11750.16.j.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
W.P. NO. 11750 OF 2016
1) The State of Maharashtra ]
Through its Principal Secretary ]
(ADF) Agriculture, ]
Dairy Development and Fisheries ]
Department, Khan Abdul Gafar ]
Khan Road, Worli, Mumbai-400018 ]
]
2) The Commissioner, ]
Dairy Development, ]
Animal Husbandry and ]
Fisheries Deptt. ]
Khan Abdul Gafar Khan Road, ]
Worli, Mumbai-400 018 ].. Petitioners
Vs.
1) Dharampal Murlidhar Barmase ]
Age about 55 years, ]
Occ: Service, ]
As Technical Assistant in the ]
Office of Dairy Development ]
Commissioner, Khan Abdul Gafar ]
Khan Road, Worli-Seaface ]
Worli, Mumbai-18 ]
Residing at C-2, Dairy Staff ]
Quarters, Worli, Mumbai-18 ]
]
2) The Secretary, ]
Maharashtra Public Service ]
Commission, Address at ]
5½, 7 and 8 floor ]
Cooperage Telephone Corpn. ]
Building, Maharshi Karve Road, ]
Cooperage, Mumbai ]..Respondents
1 of 8
::: Uploaded on - 10/10/2017 ::: Downloaded on - 10/10/2017 23:38:14 :::
jdk 2 2.cwp.11750.16.j.doc
....
Mr. N.C. Walimbe AGP for Petitioners
Mr. Yashodeep Deshmukh Advocate i/b Sharayu Shinde for
Respondent No. 1
Mr. Shrikrishna Ganbavale Advocate for Respondent No.2
....
CORAM : SMT.V.K.TAHILRAMANI AND
DR.SHALINI PHANSALKAR-JOSHI, JJ.
DATED : SEPTEMBER 27, 2017
ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI, J.]:
1 Heard the learned AGP for the petitioners, the learned
counsel for respondent no.1 and the learned counsel for
respondent no.2 - M.P.S.C.. Rule. By consent, rule is made
returnable forthwith and the matter is finally heard.
2 The petitioners have preferred this petition against
the order dated 12.2.2015 passed by the Maharashtra
Administrative Tribunal, Mumbai (hereinafter referred to as the
"Tribunal") in Original Application No. 697 of 2012 preferred by
respondent no.1. The said Original Application had been
preferred by respondent no.1 claiming that his candidature as
General Manager from Scheduled Caste category in the Dairy
2 of 8
jdk 3 2.cwp.11750.16.j.doc
Development Department was wrongly rejected by respondent
no.2- M.P.S.C. on the ground that he did not have sufficient
experience.
3 The respondent no.2 - M.P.S.C. had issued an
advertisement dated 28.12.2004 to fill up 15 posts of General
Manager (Govt. Milk Scheme) in the Dairy Development
Department. Four posts were reserved for Scheduled Caste
candidates. The respondent no.1 had applied for the said post
from the Scheduled Caste category and he was interviewed for
the said post, however, as stated earlier, the respondent no.1's
candidature came to be rejected on the ground that he did not
have sufficient experience.
4 As per the advertisement, experience and
qualification for the post was as follows:
"B] After acquiring the qualification specified in
(A) above, not less than five years experience in a
dairy having processing capacity of not less than
50000 litres per day out of which three years
experience shall be in the post equivalent to Group -
B technical post in the Dairy Development
Department".
3 of 8
jdk 4 2.cwp.11750.16.j.doc
5 The learned AGP as well as learned counsel for the
respondent no.2 - M.P.S.C. submitted that as per the
advertisement, the respondent no.1 had to have not less than
five years experience in a Dairy having "processing" capacity of
not less than 50000 litres per day. As the respondent no.1 had
worked in Group-B post only in Nagpur District Nutan Milk
Producers Union, the said Unit had processing capacity of only
20000 litres per day. They submitted that even if 40%
relaxation is granted considering the fact that the respondent
no.1 is a candidate from Scheduled Caste category, that would
mean that the Unit where the respondent no.1 was working,
had to have processing capacity of 30000 litres of milk per day
and as the said Unit had the processing capacity of only 20000
litres of milk per day, the respondent no.1 would not be eligible
and hence, his candidature was rightly rejected.
6 The learned AGP as well as learned counsel for
Respondent no.2- M.P.S.C. submitted that the Tribunal was
wrong in considering that as Nagpur District Nutan Milk
Producers Union used to "collect" more than 50000 litres per
4 of 8
jdk 5 2.cwp.11750.16.j.doc
day, hence, respondent no.1 had experience of "handling" more
than 50000 litres of milk per day which would be sufficient to
hold that the respondent no.1 had the necessary experience.
They submitted that the advertisement clearly states that the
person should have experience in a Dairy having "processing
capacity" of not less than 50000 litres of milk per day.
7 The learned counsel for respondent no.1 candidly
admitted that as far as experience from Group-B is concerned,
the respondent no.1 had gained the said experience as Dairy
Manager in Nagpur District Nutan Milk Union and the earlier
posts held by the respondent no.1 were not in Group-B posts.
The learned counsel for the respondent no.1 pointed out that as
the respondent no.1 was a Scheduled Caste candidate, M.P.S.C.
could relax the requirement of the period of experience to the
extent of 40%. He submitted that this 40% relaxation would
also include the qualification of having experience in a Dairy
having "processing" capacity of not less than 50000 litres of
milk per day.
8 The issue is about the person working in such Union /
5 of 8
jdk 6 2.cwp.11750.16.j.doc
Unit which has sufficient "processing" capacity of 50000 litres
of milk per day and not "handling" capacity of 50000 litres of
milk per day. Mr. Walimbe the learned AGP submitted that a
candidate was required to have experience of 5 years of
working in a Unit having minimum processing capacity of 50000
litres of milk per day, out of which, a minimum of three years
experience should have been in a post equivalent to Group-B
post in Dairy Development Department. The respondent no.1
had experience as a Manager (Group-B post) only in Nagpur
District Nutan Milk Producers Union, which had a plant having
capacity of processing only 20000 litres of Milk per day. As the
respondent no.1 did not have the requisite experience even
after 40% relaxation in experience, his candidature was rightly
rejected. Further it is seen that even after the relaxation of
40% which would mean that the Dairy Unit should have
capacity of processing 30000 litres of milk per day which was
not the case as the Dairy in which the respondent no.1 was
working as Group-B officer had only processing capacity of
20000 litres of milk per day. The advertisement clearly
mentioned that experience should be in a Unit having
processing capacity of not less than 50000 litres of milk per
6 of 8
jdk 7 2.cwp.11750.16.j.doc
day. There is a vast distinction between "processing" and
"handling". "Processing" is entirely different from "handling"
and even if such Dairy Unit is collecting milk which is more than
50000 litres of milk per day, the fact that it did not have the
capacity to "process" the said milk in the Unit would not meet
the requirements of the advertisement. The dairy where the
Respondent no.1 was working did not have the capacity to
"process" 50000 litres of milk per day, hence, it would not meet
the requirements of advertisement and hence, candidature of
the respondent no.1 has been rightly rejected.
9 Thereafter the learned counsel for respondent no.1
submitted that in fact, the petitioner had obtained 59 marks
and three persons who had obtained less marks than him i.e.
Shri. Gadwe who had obtained 58 marks and Shri. Lalsingh
Rathod and Shri. Vitthal Rathod who had got 58 and 52 marks
respectively, were selected, even though they did not have the
necessary experience of working in a Unit which had processing
capacity of more than 50000 litres of milk per day. He
submitted that equal treatment should be given to all the
candidates. As far as this aspect is concerned, a wrong
7 of 8
jdk 8 2.cwp.11750.16.j.doc
appointment of a candidate would not entitle the other
candidate to get appointment. In any event, we would like to
mention here that the matter of appointment of such
candidates is being investigated by the A.C.B. hence, we need
not make any further comments on the said issue. As stated
earlier, wrong appointment of other candidates would not
entitle the respondent no.1 to be appointed.
10 Looking to the fact that respondent no.1 did not have
the requisite experience of working in a Dairy having processing
capacity of not less than 50000 litres of milk per day as stated
in the advertisement, the impugned order of the Tribunal is not
sustainable and the same is set aside. Rule is made absolute
in above terms.
[DR.SHALINI PHANSALKAR-JOSHI,J.] [ SMT.V.K.TAHILRAMANI, J. ]
kandarkar
8 of 8
