Bombay High Court
The State Of Maharashtra Through ... vs The Civil Surgeon Cadre Group A ... on 12 January, 2018
Bench: Naresh H. Patil
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pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12059 OF 2017
Maharashtra Public Service Commission .. Petitioner
Vs.
1. Dr. Mohan Apparao Jadhav and ors. .. Respondents
WITH
WRIT PETITION NO. 202 OF 2017
Maharashtra Public Service Commission .. Petitioner
Vs.
1. The Civil Surgeon Cadre Group A (Doctor's)
Association and ors. .. Respondents
WITH
WRIT PETITION NO. 203 OF 2017
Maharashtra Public Service Commission .. Petitioner
Vs.
1. Dr. Ratna Dinkar Raokhande and ors. .. Respondents
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WITH
WRIT PETITION NO. 20 OF 2017
The State of Maharashtra .. Petitioner
Vs.
1. Dr. Mohan Apparao Jadhav and ors. .. Respondents
WITH
WRIT PETITION NO. 8278 OF 2017
The State of Maharashtra & anr. .. Petitioners
Vs.
1. Dr. Mohan Apparao Jadhav and anr. .. Respondents
WITH
WRIT PETITION NO. 7272 OF 2017
The State of Maharashtra & anr. .. Petitioners
Vs.
1. The Civil Surgeon Cadre Group A (Doctor's)
Association and anr. .. Respondents
Mr. N. P. Dalvi i/by Mr. Ashutosh M. Kulkarni for petitioner - MPSC in
WP Nos. 12059/17, 202/17 and 203/17.
Mr. A. B. Vaghyani, Govt. Pleader with Mr. P. P. More, AGP for State in
WP Nos.20/17, 7272/17 and 8278/17.
Mr. Yashodeep Deshmukh i/by Sharayu S. Shinde for respondent No.1 in
WP No. 12059/17.
Mr. Narendra D. Thombare for respondent no.1 in WP No. 203/17.
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CORAM: NARESH H. PATIL &
R. G. KETKAR, JJ.
RESERVED ON : DECEMBER 06, 2017
PRONOUNCED ON : JANUARY 12, 2018
JUDGMENT [ Per Naresh H. Patil, J.] :
1. Rule. Rule is made Returnable forthwith. Heard finally by
consent of the parties.
2. The petitioner - Maharashtra Public Service Commission has
filed Writ Petition Nos.12059 of 2017, 202 of 2017 and 203 of 2017
challenging the impugned Judgment and Order dated 23/11/2016 passed by
the Maharashtra Administrative Tribunal (for short MAT) in Original
Application Nos.800, 815 and 816 of 2016. The State of Maharashtra has
also preferred Writ Petition Nos.8278 of 2017 and 7272 of 2017 against the
same Judgment and Order passed by the MAT. The State of Maharashtra
has filed one more Writ Petition No. 20 of 2017 for quashing and setting
aside short-listing criteria and the list of shortlisted candidates prepared
pursuant to the Advertisement No. 6/16 dated 17/2/2016.
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3. This is the second round of litigation in respect of recruitment
to the post of Director of Health Services, Maharashtra Medical & Health
Services, Group - A. We find it necessary to give brief narration in respect
of the earlier round of litigation.
(a) The Original Application Nos.360/2012, 94/2013 and 95/2013
were filed respectively by Dr. Mohan Apparao Jadhav, Dr. Abhay
Shaligram Gajbhiye and Dr. Ratna Dinkar Raokhande. An Advertisement
bearing No. 184 of 2012 dated 20/1/2012 was issued for selecting suitable
persons to fill up post of Director, Health Services, Maharashtra State. The
Recruitment Rules for the post of Director, Health Services, Maharashtra
State were framed by the concerned department on 14/12/1971. The
appointment to the said post was to be made by nomination. A short-
listing method was applied, in which six candidates were shortlisted for
conducting interview. The said list of shortlisted candidates was got
reduced from 6 to 3. Two candidates, out of three, were related inter se as
husband and wife (i.e. Dr. Satish Dhanaji Pawar and Dr. Archana Vasant
Patil). The then original applicants challenged the procedure adopted by
the MPSC in short-listing candidates. On 27/1/2014, the MAT allowed
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the Original Applications and set aside short-listing criteria adopted by the
MPSC. Consequently, the selection of Dr. Satish Dhanaji Pawar (at present
holding charge as Director, Health Services, State of Maharashtra) was set
aside. The State and the MPSC was directed to initiate the recruitment
procedure afresh within one month from the date of the judgment and order
i.e. 27/1/2014 by the MAT.
(b) Against the said judgment and order dated 27/1/2014, Dr.
Satish Dhanaji Pawar and the MPSC preferred Writ Petition Nos.1936 of
2014 and 5951 of 2014 respectively.
(c) By a judgment and order dated 1/8/2014, the Division Bench
of this court, to which one of us (Naresh H. Patil,J.) was party, disposed of
the petitions finally by partly allowing the same. The short-listing method
adopted by the MPSC was held to be lacking rational basis and directions
issued by the Tribunal to issue a fresh process was upheld.
(d) Against the said judgment and order dated 1/8/2014 delivered
by this court, Dr. Satish Dhanaji Pawar preferred SLP before the Hon'ble
Supreme Court bearing Petition(s) for Special Leave to Appeal (C)
Nos.22792-22793 of 2014.
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(e) By an order dated 9/12/2015, the Apex Court disposed of the
SLP by passing following order :-
" Delay Condoned.
Heard Mr. K. V. Vishwanathan, learned senior counsel
for the petitioner, Mr. Anish R. Shah, learned counsel for the
respondent Nos.1 and 5, Mr. Kunal Cheema, learned counsel
for the State of Maharashtra and Mr. Satyajit A. Desai, learned
counsel for the Maharashtra Public Service Commission.
Having heard learned counsel for the parties, we are of
the considered opinion that there is no error in the order passed
by the High Court to interfere. Hence, we decline to interfere.
However, we direct that the directions issued by the High
Court shall be complied with within a period of four months
and till the selection process is complete, the petitioner shall
continue. Needless to say, if the petitioner comes within the
criteria, his case will be considered. Neither the order passed
by the High Court, nor our non-interference would weigh with
the authorities while proceeding with the selection process.
The special leave petitions are, accordingly, disposed of.
No order as to costs."
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4. Thereafter the fresh Advertisement No. 6 of 2016 was issued
on 17/2/2016 by the MPSC for initiating selection process to fill up the
post of Director, Health Services, Maharashtra State. The relevant
conditions as reflected in the Advertisement in clause 4.4 are as under :
4.4 Education Qualification :-
Candidate must possess :
4.4.1 Possess the M.B.B.S. Degree of a statutory
University or any other qualification specified in the
First or Second Schedule of the Indian Medical Council
Act, 1956:
4.4.2 Possess a post-graduate degree in any of the
clinical subjects or in Preventive and Social Medicine as
specified in the First or Second Schedule to the Indian
Medical Council Act, 1956 or any other qualification
recognized as equivalent by the Medical Council of
India.
4.4.3 Possess experience of Health Administration,
Medical Relief or Family Planning in Government, Zilla
Parishad or a Local Body of not less than ten years after
acquiring post-graduate qualification mentioned in
4.4.2.
4.4.4 Provided that in the case of candidates possessing
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a post graduate degree in any clinical subject, those
possessing a Diploma in Public Health or equivalent in
addition, will be given preference.
4.5 Selected candidate will have to sign an agreement
embodying the conditions of his service including the
condition to serve Government for a period of 5 years or to
penalty of Rs.500/- or such other sum as may be prescribed by
Govt.
4.6 Selected candidate will have to get himself / herself
registered under Maharashtra Medical Council Act, 1956,
before joining of his / her name should be borne in Indian
Medical Council Register.
4.7 Selected candidates will be debarred from doing any
private practice but will be paid compensatory allowance in
lieu according to the rules.
4.8 Period of probation two years.
5. In the meanwhile, the MPSC had framed MPSC Rules of
Procedure 2014, which came into force. For the purposes of convenience,
we may reproduce herein below the relevant Rule 9 of the MPSC Rules of
Procedure 2014 :
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9. Direct Recruitment -
(i) The number of the candidates to be shortlisted for the
interview shall be as follows:-
__________________________________________________
No. of post advertised No. of candidates to be called
for interview
__________________________________________________
3 and more 3 times
__________________________________________________
However, in cases of isolated posts at the State Level i.e.
Director of field department etc. which are equivalent to the
grade of Joint Secretary in Mantralaya or above the
commission may decide from time to time, the number of
candidates to be called for the interview. The number of the
candidates to be shortlisted for interview shall not exceed 10
times the number of such vacancies, in any case.
(ii)
(iii)
(iv)
(v) In case the response to the advertisement exceeds the
proportion laid down in Rule 9(i) above, the commission may
apply criteria for short-listing of the candidates for interview
as follows:-
(a) Whenever there is provision for a preferential academic
qualification or experience in the rules of recruitment of the
post it shall be accorded highest priority while short-listing the
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candidates for interview.
(b)
(c)
(d) For the posts prescribing minimum academic
qualifications together with minimum experience, the criteria
of higher experience than the minimum prescribed shall be
applied after the preferential qualification for short listing and
of the ratio is not reached, then only the criterion of higher
academic qualification as provided in clause (b) above shall be
invoked.
6. During the course of selection process, the MPSC adopted
short-listing criteria as according to MPSC it was found that number of
applications was large i.e. 45. According to MPSC short-listing criteria
was applied in terms of Rules of Procedure No. 9(v)(a) and (d) read with
advertisement clause No.4.4.4. The prescribed criteria for short-listing is
reproduced as below :
CRITERION - I
Those possessing M. B. B. S. Degree of a statutory
University or any other qualification specified in the
First or Second Schedule of the Indian Medical
Council Act, 1956; And
Possessing a post graduate degree in any clinical
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subject or in Preventive and Social Medicine, together
with a Diploma in Public Health or equivalent; And
Possessing experience of Health Administration,
Medical Relief or Family Planning in Government,
Zilla Parishad or a Local Body of not less than 14
years, 1 month, 22 days after acquiring post-graduate
qualification.
CRITERION - II
Those possessing M.B.B.S. Degree of a statutory
University or any other qualification specified in the
First or Second Schedule of the Indian Medical
Council Act, 1956; And
Possessing a post graduate degree in any clinical
subject or in Preventive and Social Medicine as
specified in the First or Second Schedule to the Indian
Medical Council Act, 1956 or any other qualification
recognized as equivalent by the Medical Council of
India; And
Possessing experience of Health Administration,
Medical Relief or Family Planning in Government,
Zilla Parishad or a Local Body of not less than 27
years, 2 months, 27 days after acquiring post-graduate
qualification.
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7. According to the MPSC only five candidates were available
after applying the short-listing criteria of preferential academic
qualification. Therefore, the MPSC applied criteria of higher experience in
accordance with Criteria - II. The MPSC short-listed additional five
candidates applying short-listing criteria of higher experience.
8. The original applicants challenged the said short-listing
criteria as due to short-listing criteria adopted by the MPSC, they were
excluded from the zone of consideration along with other candidates who
could have otherwise participated in the selection process.
9. The Tribunal by a reasoned Judgment and Order dated
23/11/2016 struck down the short-listing criteria adopted by the MPSC and
directed MPSC to commence the process in the light of the observations
and the law laid down by the courts in this regard. The MPSC was also
directed to consider the cases of original applicants Dr. Mohan Apparao
Jadhav and Dr. Ratna Dinkar Raokhande as well as others from amongst
those who had applied for the post. Para 35 of the impugned Judgment and
Order passed by the Tribunal reads as under :-
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"35. The short listing criteria adopted herein and the list of
short listed candidates prepared in accordance therewith are
both struck down, quashed and set aside. The Respondent -
MPSC shall commence the process from the stage such as it
was bearing in mind the observations herein which in turn are
based on the law laid down by the Hon'ble Constitutional
Courts. It is made clear that if short listing becomes absolutely
imperative on the facts and the candidates who are already on
the list, some of them or anyone of them are / is found
qualified for getting their names included again, there shall be
no embargo in that behalf. However, upon a proper
application of the principles herein enunciated, the
Respondents shall also consider the case of the Applicants Dr.
Jadhav and Dr. Raokhande as well as the others from amongst
those who have applied for the post. The Respondent - MPSC
shall act with due dispatch in deference to the mandate of the
Hon'ble Supreme Court in the earlier round of litigation and
expeditiously take the further steps in the matter. These
Original Applications are allowed in these terms with no order
as to costs."
10. The learned counsel appearing for the petitioner - MPSC
submitted that the Tribunal committed error in setting aside the short-
listing criteria applied by the MPSC. In accordance with the Rules of
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Procedure 2014, short-listing criteria, the MPSC had initiated the selection
process in a fair and transparent manner. The MPSC was entitled to apply
appropriate short-listing criteria for adopting a transparent procedure after
noticing that number of applicants were large. The learned counsel
submitted that the Tribunal failed to appreciate the term "clinical subject",
"Diploma in Public Health" or equivalent. The principle and purpose of
having criteria Nos. I and II were not appreciated by the Tribunal in its
proper spirit. The Original Applicants failed to establish any mala fide
attributable to MPSC. Short-listing criteria was adopted by applying
principle of preference. The Original Applicants failed to produce material
on record in respect of the work experience relating to clinical and non-
clinical post. The Tribunal ought not to have entered into the territory of
expertise which MPSC possesses in selecting candidates. In the absence of
any legal opinion of an expert body, the original applicants have no
authority to challenge the short-listing criteria relating to the subjects of
experience and qualification applied by the MPSC.
11. The learned Government Pleader, while answering issue of
locus to the State to challenge the impugned Judgment and Order passed by
the Tribunal, submitted that as mala fides were alleged by the applicants,
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the State Government decided to file petition. But on the same issue, no
finding was given by the Tribunal. The learned Govt. Pleader submitted
that consequent to the order passed by the Apex Court, the State had
addressed a communication on 1/12/2016 to the counsel for the State in the
Apex Court for seeking three months extension for compliance of the
order. Thereafter, by communication dated 29/4/2016, addressed to the
counsel for the State in the Apex Court, State requested to seek further
extension of two months for compliance of the order. However, the learned
Govt. Pleader could not place on record any order passed by the Apex
Court granting extension of time for compliance of the order passed by the
Supreme Court on an application filed by the State Government, if any, in
this regard. The learned Govt. Pleader submitted that in view of the order
passed by the High Court and the Apex Court, the selection process ought
to have been conducted in a time bound manner.
12. Mr. Deshmukh, the learned counsel, appearing for the
respondent no.1 - Dr. Mohan Apparao Jadhav submitted that the short-
listing criteria adopted by the MPSC was against the MPSC Rules of
Procedure 2014. Preventive Social Medicine (PSM) is a non-clinical
subject whereas according to the State it is clinical subject. The counsel
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submits that in fact official document would show that the PSM is a non-
clinical subject. The learned counsel referred to the conditions of
advertisement i.e. 4.4.4 and 5, the MPSC Rules of Procedure 2014 and the
short-listing criteria. A reference was also made to the earlier recruitment
criteria applied by the MPSC in respect of same post i.e. Director, Health
Services, State of Maharashtra. On having a comparative analysis of these
rules and criteria, the counsel submitted that this time the MPSC again
created confusion which would ultimately benefit the person holding
charge of such a important post of Director, Heath Services. Dr. Satish
Dhanaji Pawar is to retire after a year or so. The counsel submitted that
State and MPSC were successful in somehow delaying the process due to
which Dr. Pawar is successful in the office, though his appointment was set
aside by the Courts prior to five years. The counsel made reference to
criteria of higher experience and qualification (super speciality). The
learned counsel further submitted that Dr. Pawar, who is holding charge of
Director was suspended for a period between 13/4/2016 to 20/10/2016
during which period one of the applicants, namely, Dr. Jadhav, who is
second in the seniority was handed over the charge of Director of Health
Services, State of Maharashtra. The charges levelled against Dr. Pawar
were serious according to the learned counsel. In the submission of the
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learned counsel, in fact, the order passed by the Apex Court directing the
State and MPSC to complete the process within four months was violated
in letter and spirit. Instead of completing the process, the State allowed Dr.
Pawar to continue to hold the post which is in complete breach of the
judgment and order of the High Court and the Apex Court.
13. Mr. Thombare, the learned counsel appearing for respondent
no.1 - Dr.Ratna Raokhande submits that the respondents fulfill both the
criteria i.e. Criteria Nos.I and II. They are qualified having qualification as
PG (Clinical) and Diploma in Public Health Administration. It was pointed
out at this stage by the learned counsel appearing for the MPSC that one of
the candidates had mentioned in the application having qualification of
hospital administration. Mr. Thombare, the learned counsel, submits that
in accordance with the second criteria, the candidate has 30 years of
experience and on the date of application the candidate had 25 years of
experience. The original applicants are to retire somewhere in the next
year and inspite of the fact that the process to fill in the post of Director,
Health Services was started in the month of January 2012, it is near about
more than five years now, the process is still incomplete and the issue is
dragged on and on. The learned counsel submits that till the process is
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complete finally in the interest of justice and in the interest of
administration of the Health Department of the State, directions are
required to be issued to the State Government to hand over the charge of
post of Director, Health Services, State of Maharashtra to the next senior
person keeping in view the letter and spirit of the order passed by the Apex
Court.
14. We have perused the record placed before us, considered the
submissions advanced.
15. It is really disturbing to note that for selecting a suitable
person to an important post of Director, Heath Service, State of
Maharashtra, process is dragged on for near about six years. This is second
round of selection process which too has failed to convince the courts. The
Administrative Tribunal, expressing its displeasure, by a reasoned
judgment and order set aside the shortlisting criteria adopted by the MPSC.
In the earlier round of litigation too, this court had confirmed the view
adopted by the Tribunal. On both the occasions, respective applicants
established that they were excluded from participating in the selection
process.
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16. What is more heartening and surprising is that inspite of the
order passed by the Apex Court in SLP preferred by Dr. Satish Dhanaji
Pawar bearing Petition(s) for Special Leave to Appeal (C) Nos.22792-
22793 of 2014, wherein the Apex Court directed that the directions issued
by the High Court shall be complied with within a period of four months.
The State Government, for reasons best known to it, inspite of the order
passed by the Apex Court, continued Dr. Satish Dhanaji Pawar, holding
charge as Director, Health Services, State of Maharashtra. The State
Government has misinterpreted the letter and spirit of the order passed by
the Apex Court. In the facts, we find that continuation of Dr. Satish
Dhanaji Pawar, as holding charge of the important post, the State is in
breach of the order passed by the High Court and the Apex Court.
17. On behalf of the State, it was submitted that twice the State
communicated to its lawyer in Apex Court to get extension of the time for
compliance of the order passed by the Apex Court, but, it seems that no
steps were taken. At least nothing is placed on record to show that
applications were filed in the Apex Court seeking extension for the
compliance of the order. We find that even there was a delay by MPSC to
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start the selection process as directed by the courts. We are not satisfied
with the explanation provided by the learned counsel appearing for the
MPSC in this regard.
18. Returning to the merits, we find that the MPSC Rules of
Procedure 2014 prescribed that in case the candidate possessing post-
graduate degree in any clinical subject, those possessing a Diploma in
Public Health or equivalent in addition, will be given preference. In the
MPSC Rules of Procedure 2014 proviso to 3.3 sub clause 4 reads as
under :-
3.3 The Recruitment Rules lay down the essential
qualifications and experience as follows :-
(1) .......
(2) ......
(3) ......
(4) ......
Provided that in the case of candidates possessing a post
graduate degree in any of the clinical subjects those possessing
a diploma in Public Health or equivalent in addition will be
given preference.
In complete breach of the Rules of Procedure as stated above,
MPSC prescribed a condition that a candidate possessing a post-graduate
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degree in any clinical subject or in Preventive and Social Medicine,
together with a Diploma in Public Health or equivalent could be selected.
In Criteria - I, MPSC expected a candidate to have experience of 14 years,
1 month, 22 days. Criteria - II required a candidate having experience of
Health Administration, Medical Relief or Family Planning in Government,
Zilla Parishad or a Local Body of not less than 27 years, 2 months, 27 days
after acquiring post-graduate qualification. We are not satisfied with the
explanation tendered by the learned counsel appearing for the MPSC for
prescribing such criteria for shortlisting the candidates.
19. The basic thrust of the original applicants is that the
shortlisting criteria is contrary to MPSC Rules of Procedure 2014. The
MPSC committed a grave error in seeking requirement of Diploma in
Public Health or equivalent along with post-graduation in clinical subject
or PSM as one of the requirements in Criteria - I. It is contrary to the
conditions of advertisement and Rule 3.3 which requires a candidate
having Diploma in Public Health or equivalent to be considered as a
matter of preference. But while applying shortlisting criteria, the MPSC
made it mandatory to have PG in any clinical subject or in PSM, together
with a Diploma in Public Health or equivalent. Such a deviation is
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contrary to the conditions of advertisement and the Rules framed in that
behalf. The Tribunal, therefore, while relying on various authorities,
reached conclusion that the shortlisting criteria adopted by the MPSC was
in complete violation of the conditions of advertisement and the Rules due
to which the original applicants, Dr. Mohan Jadhav and Dr. Ratna
Raokhande were excluded from participating in the selection process. We
do not find any error in the view adopted by the Tribunal in this regard.
20. The Tribunal noticed in para 34 of the judgment that 7 out of
10 persons having post graduate qualification in PSM and 3 candidates
were holding degrees in clinical subjects.
21. In respect of the petitions filed by the State of Maharashtra, we
are of the view that there was no cause of action for the State to challenge
the impugned judgment and order passed by the Tribunal on merits as the
issue canvassed by the original applicants before the Tribunal was in
respect of shortlisting criteria adopted by the MPSC.
22. For the reasons stated above, we do not find any
unreasonableness or error in the view adopted by the Tribunal.
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23. In the facts of the case, we find that it would be highly
unreasonable to allow Dr. Satish Dhanaji Pawar to continue to hold charge
of the post of Director, Health Services, State of Maharashtra in the teeth
of the orders passed by the courts. We are convinced that the continuation
of Dr. Satish Dhanaji Pawar in the said post is in breach of letter and spirit
of the order passed by the Apex Court on 9/12/2015 in Petition(s) for
Special Leave to Appeal (C) Nos. 22792-22793 of 2014. The State has
failed to convince us in respect of the continuation of Dr. Satish Dhanaji
Pawar as Director, Health Service, State of Maharashtra. During the course
of hearing, it was submitted that for a considerable period Dr. Satish
Dhanaji Pawar was suspended by the State. We, therefore, find it
appropriate to issue directions tot he State to make alternate arrangement
till the final selection to the post of Director, Health Services, State of
Maharashtra is held successfully by the State / MPSC.
24. We direct the State of Maharashtra to issue necessary
directions for handing over charge of the post of Director, Heath Services,
State of Maharashtra from Dr. Satish Dhanaji Pawar to the next senior in
the service. We further direct that present Director, Health Services, State
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of Maharashtra shall not take any major, financial or administrative
decisions.
25. With the aforesaid directions, petitions stand dismissed with
costs. Rule is discharged.
26. Parties to act on an authenticated copy of this order.
(R. G. KETKAR,J.) (NARESH H. PATIL,J.)
