Maharashtra Public Service ... vs Smt. Punam Balasaheb Madage And ...
2017 Latest Caselaw 7652 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                              CIVIL WRIT PETITION NO. 13933 OF 2016

Maharashtra Public Service Commission                                                          ]
(Through its Secretary)                                                                        ]
Having office at 5 1/2th, 7th & 8th floor,                                                     ]
Cooperage Telephone Nigam Building,                                                            ]
Maharshi Karve Road, Cooperage,                                                                ]
Mumbai - 400 021.                                                                              ]           ... Petitioner

                       V/s.

1.         Smt. Punam Balasaheb Madage                                                         ]
           Occupation : Service,                                                               ]
           Residing at Room No.13,                                                             ]
           Building No.3,                                                                      ]
           Gokhalenagar Police Line,                                                           ]
           Pune - 411 016                                                                      ]

2.         The Director General of Police                                                      ]
           Maharashtra State,                                                                  ]
           Shahid Bhagatsing Marg,                                                             ]
           Mumbai - 400 001                                                                    ]           ... Respondents

• Mr.Shrikrishna R. Ganbavale for the Petitioner. • Mr.Sanjay Kshirsagar for Respondent No.1.

• Mr.Vishal Thadani, A.G.P. for Respondent No.2.

CORAM : SMT. V.K. TAHILRAMANI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

RESERVED ON                                    :  26th SEPTEMBER, 2017.
PRONOUNCED ON                                  :  28th SEPTEMBER, 2017.




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JUDGMENT (PER : DR. SHALINI PHANSALKAR-JOSHI, J.) :-

1]                     Rule.  Rule made returnable forthwith. 


2]                     Heard finally with the consent of learned counsel for both

the parties. 


3]                     The   Petitioner,   Maharashtra   Public   Service   Commission

(MPSC), has filed this present petition under Article 226 of the

Constitution of India, being aggrieved by the judgment dated

14/07/2016 in Original Application No. 379 of 2015 passed by the

Maharashtra Administrative Tribunal, Mumbai (for short, "Tribunal").

4] By the said order, the Tribunal has directed the Petitioner

to interview the Respondent No.1 within a period of three months and

if found suitable, to recommend her name for the appointment to the

State Government to the post of Police Sub-Inspector from the

category that she would be found eligible.

5] Brief facts of the petition are as under :-

In response to the Advertisement for the post of Police Sub-

Inspector (Pre) Examination, issued on 01/04/2014, Respondent No.1,

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applied from OBC Female category. She cleared the (Pre)

Examination. Thereafter, Notification for (Main) Examination was

issued on 12/08/2014. She had also cleared the (Main) Examination

and by the letter dated 04/03/2015 she was called for physical test

and interview to be held on 16/03/2015. It was at this stage that, on

09/03/2015, she applied for "Non-Creamy Layer Certificate" (NCL

Certificate) from Tahsil Office. The physical test for the said post was

held on 16/03/2015 and she qualified therein. However, on that day,

she could not produce the NCL Certificate. As a result, she was not

interviewed. Subsequently, on 20/03/2015, she produced the said

NCL Certificate and requested the Petitioner to conduct her interview.

However, the said request was refused by the Petitioner. As a result,

though, Respondent No.1 has secured 159 marks, while cut-off for

OBC Female was 146 marks, her name could not be found in the

selection list. Being aggrieved by the placement of her name in the

non-eligible candidates list, she filed Original Application No.379 of

2015 before the Tribunal.

6] This Original Application came to be resisted by the

Petitioner herein contending inter-alia that the functioning of the

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MPSC is regulated by its Rules of Procedure framed by it in exercise of

its function as stipulated under Article 320 of the Constitution. The

Commission has to act in accordance with the provisions contained

therein. Hence, instructions given by the Petitioner, in its

Advertisement, were sacrosanct and could not have been lightly

interfered with, as it would disturb the examination schedule.

Secondly, it was submitted that, in the Advertisement issued for the

said post, it was clearly mentioned that all the original documents, on

which the candidates want to rely upon, should be produced at the

time of interview. Respondent No.1, however, did not produce the

original NCL Certificate in time or even till the interview process was

over. In such situation, she could not be interviewed. The requirement

of submission of NCL Certificate, according to the Petitioner, cannot be

relaxed arbitrarily in favour of Respondent No.1 when it was binding

on all the candidates.

7] The Tribunal, however, vide its impugned order allowed

the Original Application of Respondent No.1 holding that there was

delay of just one or two days in furnishing the NCL Certificate and

there was also sufficient cause for the delay, as stated in the letter

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written by Respondent No.1 to the Petitioner on 20/03/2015 and the

said cause was the strike in the Tahsil Office at the relevant time. This

cause was not controverted by the Petitioner. It was further held that

earlier also, the Petitioner has condoned such delay of one or two days

in submitting the documents in respect of other candidates appearing

for other exams. Hence, there was no reason to reject the claim of

Respondent No.1. Accordingly, her application was allowed and the

Petitioner was directed to conduct her interview within three months

and if she is found suitable, then recommend her for appointment to

the post of Police Sub-Inspector from the category she would be found

eligible.

8] This order of the Tribunal is challenged in the present Writ

Petition by Mr.Ganbavale, learned counsel for the Petitioner, by

submitting that in the Advertisement issued on 01/04/2014 for this

said post, it was clearly stated that, it was mandatory for all the

candidates to produce their original certificates and documents on the

date of interview and in any case, the extension for production of

documents will not be granted. It was further informed that on failure

of the candidate to produce the documents and certificates, the

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interview will not be taken. In the face of these clear instructions, it is

submitted that Respondent No.1 has no case to contend that her NCL

Certificate should have been accepted subsequently when admittedly

she has failed to produce the same on the date of interview. According

to learned counsel for the Petitioner, Respondent No.1 has produced

the NCL Certificate on 23/03/2015, whereas her physical test and

interview was on 16/03/2015 and in such situation, the Petitioner was

justified in not considering her for interview and declaring her as

ineligible for the post.

9] Per contra, Mr.Kshirsagar, learned counsel for Respondent

No.1, has supported the impugned order of the Tribunal by submitting

that when the delay is only of a day or two and it is also explained

with satisfactory reason and especially when the delay was on account

of the reasons beyond the control of Respondent No.1, as it was due to

the strike in the office of Tahsil from where NCL Certificate was to be

issued, Respondent No.1 should not be denied the opportunity of

promotion as she has got the qualifying marks. According to learned

counsel for Respondent No.1, therefore, the impugned order passed by

the Tribunal calling upon the Petitioner to conduct her interview

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being just, legal and correct; it need not be disturbed with.

10] In this case, as per admitted facts, the relevant

Advertisement for the post of Police Sub-Inspector was issued on

01/04/2014. In the "General Instructions to the Candidates", given on

the official website of the Petitioner - MPSC, it is clearly stated in

Clause 2.3.7 that, all the original documents were required to be

produced by the candidate on the date of interview and if the

candidate fails to produce the same, no further extension will be

granted and his interview will not be taken. It was further stated that,

for non production of the original documents, his candidature will be

cancelled immediately and the entire responsibility for the same will

lie on the concerned candidate.

11] Further, as per Clause No.2.3.8 of General Instructions to

the Candidates, it was informed and instructed that, if on account of

certain reason, production of original certificates was not possible at

the time of interview, then it was necessary for the candidate to inform

the same to the Petitioner at-least seven days in advance, in writing,

with sufficient reason mentioned therein. If the reason was found to be

proper, then such request will be considered on its own merits and if it

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is accepted, then only, the interview of such candidate will be taken.

12] Thus, the General Instructions to the Candidates issued

along with Advertisement, one year in advance, on 01/04/2014, were

more than clear and sufficient, to make all the candidates aware that

original documents were required to be produced, in any case, on the

date of interview; and if it was not possible, to inform about the same

in advance at-least seven days before the interview. It was also

clarified that, if such original documents were not produced at the

time of interview, the candidature will be cancelled and interview will

not be taken. It is pertinent to note that even in the letter issued to

Respondent No.1 on 04/03/2015 calling her for physical test and

interview, in Clause No.7, it was stated that, "all the documents of

eligibility will be verified and only if the candidate is found to be

eligible, his interview will be taken".

13] Thus, since beginning, Respondent No.1 was made aware

that she has to produce the original documents at the time of

interview. However, as per her case, she had applied for NCL

Certificate only on 09/03/2015 i.e. after the interview letter was

issued to her on 04/03/2015. If it is so, then, it goes without saying

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that it was total inaction and callous negligence on her part, as a result

of which, she could not produce the NCL Certificate at the time of

interview. Hence, now she cannot contend that, on account of the

alleged strike in the Tahsil Office, in respect of which no details are

given, as to since when the strike was started and when it ended, she

could not produce the NCL Certificate.

14] Further, it is pertinent to note that, as per her letter dated

20/03/2015, she has received the said NCL Certificate and hence, she

requested that her case may be considered for interview. However,

along with this letter dated 20/03/2015 she has not produced the NCL

Certificate. The Inward Stamp of the receipt of this letter in the office

of the Petitioner bears the date 23/03/2015, which is 3 days after

20/03/2015. It is a fact that, the letter which she has sent by fax is

also received in the office of the Petitioner on 20/03/2015 at 17.27

p.m.. The most pertinent aspect is that NCL Certificate which she has

produced in the case proves that, it was issued to her on 17/03/2015

itself; however, she has not produced the same either on that day itself

or on the next day or even till 23/03/2015 that is after the interview

process was over.

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15]                    In such circumstances, in our considered view, Respondent

No.1, who has shown utter callousness and negligence, does not

deserve the sympathetic consideration. On facts she has failed to show

her diligence in obtaining the NCL Certificate. Since 1 st April, 2014,

when the Advertisement was issued, she was aware about the necessity

of this Certificate but she has not applied for it, though, it was clearly

stated in the Advertisement that, the candidates will have to produce

all the original documents at the time of the interview and if they

failed to do so, their candidature will be cancelled and interview will

not be taken. Respondent No.1 has not even applied for this NCL

Certificate when the Notification of (Main) Examination was issued on

13/08/2014. She even did not apply for it, when the interview letter

was received by her on 04/03/2015, again making it clear that, she

will have to produce this original Certificate at the time of interview on

16/03/2015. Surprisingly, she has never informed the Petitioner in

advance that there would be delay in getting the NCL Certificate. She

has not made any written request to M.P.S.C. to that effect as per

Clause No.2.3.8 of General Instructions. Even after the receipt of the

NCL Certificate on 17/03/2015, she has not produced the same till

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23/03/2015.

16] In our considered opinion, therefore, such candidate, who

has utterly remained negligent throughout the selection process does

not deserve the relief which is granted by the Tribunal. No case is

made out at all by Respondent No.1 for direction to interview her,

when the entire selection process is over.

17] As regards the decision on which the Tribunal has placed

reliance that of M.P.S.C. vs. Mrs.Sunita Ashish Amritsagar, dated

24/02/2016, in Writ Petition No. 12517 of 2015, the facts of the said

case were totally different, as in that case, the candidate has produced

NCL Certificate of the year 2011-2012 at the time of interview on

07/01/2014. However it was not accepted by the M.P.S.C. on the

ground that it was not of relevant fiscal year. This Court, however,

found that it was of the relevant year and hence, it was held that

rejection of her candidature by M.P.S.C. was not proper. Hence, the

direction was given for conducting her interview. As against it, in the

instant case, Respondent No.1 has not produced such NCL Certificate

either at any time prior to interview or even at the time of interview

and, thereafter, also till 23/03/2015; though she has received the

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same on 17/03/2015. Not only that, she has not even applied for such

NCL Certificate till 09/03/2015 though she has received the interview

letter on 04/03/2015.

18] Thus, looked at it from any angle, in our considered

opinion, no indulgence can be shown to such candidate, who remain

negligent despite clear instructions. As rightly submitted by the

Petitioner, showing indulgence to such candidates and that too in writ

jurisdiction, which is extra-ordinary one and is normally to be

exercised keeping in mind the principle of equity would be as good as

acting arbitrarily against those candidates who have submitted the

documents in time and acted diligently. Merely because in some cases

which were found to be deserving, the Petitioner has granted some

time for production of Certificates on receipt of the written request to

that effect in advance, it cannot be said that the Petitioner should

every time grant such extension even if the cause shown for the delay

is not just; otherwise the very object of issuing the instructions and

conducting the entire selection process as per the schedule would be

disturbed. Such requirement of submission of Certificate, therefore,

cannot be relaxed arbitrarily in favour of Respondent No.1 when it was

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binding on all other candidates. The impugned order passed by the

Tribunal, therefore, needs to be quashed and set-aside.

19] Writ Petition is, accordingly, allowed. The impugned order,

passed by the Tribunal, is quashed and set-aside.

20]                    Rule is made absolute in above terms. 



(DR. SHALINI PHANSALKAR-JOSHI, J.)    (SMT. V.K. TAHILRAMANI, J.)