Ramesh Diwakarrao Moon vs Maharashtra Public Service ...
2022 Latest Caselaw 4643 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR

            WRIT PETITION No.7734 OF 2019

Ramesh Diwakarrao Moon,
Age 43 years, Occ. Service,
Indian inhabitant, Resident at,
403/C-17, Raunak City,
Adharwadi Jail Road,
Wadeghar Kalyan (W), Dist. Thane.
                                            ... PETITIONER

              ...VERSUS...


1.      Maharashtra Public Service Commission,
        through its Secretary, having its office at
        Bank of India bldg., 3rd Floor, M.G. Road,
        Fort, Mumbai.

2.      Deputy Secretary, having its office at
        Bank of India Bldg., 3rd Floor,
        M.G. Road, Fort, Mumbai.

3.      State of Maharashtra through Higher
        and Technical Department,
        Mantralaya, Mumbai.

4.      Pravin Pundlikram Karde
        Aged about major.
        Occ. Service, R/o. Karde Bhavan,
        Baccharaj Plot, Near Dhabebai Hospital,
        Cotton Market Road, Amravati

                                       ...RESPONDENTS
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---------------------------------------------------------------------------
Shri V.N. More, Advocate for Petitioner
Shri N.S. Rao, Assistant Government Pleader for respondent Nos. 1 to 3
Shri A.P. Kalmegh, Advocate for respondent No. 4
---------------------------------------------------------------------------

                  CORAM : SUNIL B. SHUKRE AND
                          SMT. M.S. JAWALKAR, JJ.

DATE : 2nd May, 2022.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

Heard. Rule. Rule made returnable forthwith.

Heard finally by consent of the parties.

2. Here is a case of the petitioner, an unfortunate

one, who fell short of experience criteria by only a few

months in order to be eligible for applying for the post of

Head of Department in Government Polytechnic Colleges in

response to the advertisement Nos. 63 and 68 of 2013.

3. The petitioner was desirous of applying to the

post of Head of Department of Government Polytechnic

Colleges in the department of Electronics. While the 9 wp 7734-2019.odt

petitioner fulfilled the criteria of educational qualification,

in the sense that, he possessed bachelor's and master's

degree in electronics with first class or equivalent either at

bachelor's or master's level, the petitioner fell short of 10

years of relevant experience in teaching/research and

industry.

4. The petitioner had earlier approached the

Maharashtra Administrative Tribunal for his being declared

as being eligible to take part in the selection process

initiated by the M.P.S.C. in pursuance of advertisement

Nos.63, 68 of 2013 and his original application was rejected

by Maharashtra Administrative Tribunal by it's order dated

10/03/2017. The petitioner then questioned the legality and

correctness of this order by filing a Writ Petition No.

292/2018.

5. Upon hearing the petitioner and the

respondents and considering the impugned order, this Court

found that the experience of a candidate was to be 9 wp 7734-2019.odt

calculated in a composite manner by taking into account,

not only his teaching experience but also his experience in

the field of research and also industry, if any, and in this

case the petitioner had a teaching experience and also

industrial experience. Since, these factors were not

considered appropriately by Maharashtra Administrative

Tribunal, this Court by its judgment delivered on

21/06/2019 quashed and set aside the order dated

10/03/2017 passed by the Tribunal and remanded the

matter back to the Tribunal for its fresh consideration and

decision, in accordance with law.

6. Thereafter, the issue was reconsidered and

decided afresh by the Maharashtra Administrative Tribunal

by its judgment and order dated 24/09/2019. Once again,

the result of the second round of litigation before the

Tribunal went against the petitioner and, therefore, the

petitioner is before this Court by filing this petition.

9 wp 7734-2019.odt

7. Learned Counsel for the petitioner submits that

again Maharashtra Administrative Tribunal has committed

the same mistake. While reconsidering the whole issue, the

Tribunal only considered teaching experience of the

petitioner and did not consider, in any manner, the

industrial experience of the petitioner and held that since

the petitioner did not have requisite 10 years' teaching

experience as per the advertisement, the petitioner was

rightly held by the M.P.S.C. not eligible for the post in

question. According to the learned Counsel for the

petitioner, this judgment is perverse as it does not consider

the relevant parameters of experience and, therefore, this

must be quashed and set aside. Learned Counsel also

submits that the matter be remanded back to the Tribunal as

the petitioner is very much hopeful of convincing the

Tribunal about his fulfilling the experience criteria. Shri

Rao, learned Assistant Government Pleader, however,

disagrees. He submits that even now it is clear that the

petitioner has not possessed the requisite experience and, 9 wp 7734-2019.odt

therefore, it would be a futile exercise to again remand the

matter back to M.A.T. Nagpur.

8. On going through the impugned judgment and

order passed by the Tribunal, we find that the learned

Counsel for the petitioner is right, to the extent of his

argument that the Tribunal has only considered the teaching

experience of the petitioner and has not considered, in any

manner, the industrial experience of the petitioner. The

Tribunal has held that the petitioner does not possess

requisite 10 years' of teaching experience as per the

advertisement. In fact, the petitioner also does not claim

that he possesses complete 10 years' of teaching experience

as required under the advertisement. His contention is that

he is possessing teaching experience of 9 years 9 months

and 12 days. But, his further contention is that the shortfall

in the 10 years' experience is filled up by the petitioner's

industrial experience of more than four years, and for this

purpose, learned Counsel for the petitioner has placed his

reliance upon certificate of experience dated 19/08/2017 9 wp 7734-2019.odt

issued by Chief Engineer (Technical) of Maharashtra State

Power Generation Company Limited, Mumbai (page No.37).

9. On going through the certificate dated

19/08/2017, one can very well see that the petitioner has

served in the industry in the different capacities such as

Junior Engineer for the period from 20/07/2006 to

12/01/2010 and as Assistant Engineer from 13/01/2010 to

18/11/2010. This certificate also states that the petitioner

has worked on the establishment of Maharashtra State

Power Generation Company Limited with active

participation in designing planning, executing, analysing

and purchasing power generation plant equipment.

According to the learned Counsel for the petitioner, this

certificate fulfills the experience criteria more than required

as per the advertisement insofar as case of the petitioner is

concerned. He also submits that the experience criteria has

to be taken in a composite manner for teaching and research

and industry.

9 wp 7734-2019.odt

10. In order to examine the correctness of the

certificate of experience relied upon by the learned Counsel

for the petitioner and also his arguments, it would be

necessary for us to consider the condition prescribed about

experience criteria. This condition is to be found in clause

4.3 of the advertisement in question. For the sake of

convenience it along with its notes, is reproduced as follows:

4-3    'kS{kf.kd vgZrk o vuqHko %&

       (A)    [i]     Bachelor's     and   Master's   degree         of

appropriate branch in Engineering/Technology with First Class or equivalent either at Bachelor's or Master's level.

[ii] Minimum of 10 years relevant experience in teaching/research/industry.

OR (B) [i] Bachelor's degree and Master's degree of appropriate branch in Engineering/Technology with First Class or equivalent either at Bachelor's or Master's level And Ph.D. or equivalent in appropriate discipline in Engineering/Technology.

[ii] Minimum of 5 years relevant experience in teaching/research/industry.

       Note
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              a.      Equivalence        of     Ph.D.     is     based       on

publication of 5 international journal papers, each journal having a cumulative impact index of not less than 2.0 with incumbent as the main Author and all 5 publications being in the authors area of specialization.

              b.      In case of research experience, good
       academic       record       and        books/research          paper

publications/IPR/patents record shall be required as deemed fit by the expert members of the Selection Committee.

c. If the experience in industry is considered, the same shall be at managerial level equivalent to head of the department with active participation record in designing, planning, executing, analyzing, quality control, innovating, training, technical books/research paper publications/ IPR/patents/etc. as deemed fit by the expert members of the Selection Committee.

[d] For the post of Head of department flair for management and leadership is essential as deemed fit by the expert members of the Selection Committee.

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11. For the purposes of this petition, the condition

No.4.3 A (ii) read with note (c) is relevant. It states that a

candidate must possess minimum 10 years of relevant

experience in teaching/research/Industry. Note (c) clarifies

the nature of industrial experience. It states that if the

experience in industry is to be considered, such experience

must be at a managerial level which is equivalent to Head of

Department. It further states that the managerial experience

should not only be equivalent to that of the post of Head of

Department but it should also be with active participation in

regard to designing, planning, executing, analysing,

maintaining quality control, innovation, training and also in

publication of technical books and/or research papers

and/or obtaining of proprietary rights and patents and so on

and so forth. So, the first requisite of industrial experience is

of experience at managerial level which is equivalent to the

level of the Head of the Department. The second requisite of 9 wp 7734-2019.odt

industrial experience is with regard to active participation in

designing, planning executing, analyzing, maintaining

quality control, innovation, training and publication of

technical books/research papers etc.

12. Now, in the light of the experience required as

per clause 4.3 A (ii) read with note (c), if we examine the

experience certificate dated 19/08/2017 (page 57), we

would find that the industrial experience which the

petitioner possessed was only in the capacity of Junior

Engineer and Assistant Engineer. The post of Engineer is an

entry level post and the post of Assistant Engineer is an

intermediate post and both these posts cannot be considered

to be equivalent to the post of the Head of the Department.

The learned Counsel for the petitioner submits that the

salary of the Junior Engineer is equivalent to the post of

Junior Engineer and the pay scale of Assistant Engineer may

be equivalent to the pay scale of a Head of the Department.

If pay scale is one of the criteria for considering equivalence,

the functions discharged by an incumbent of a particular 9 wp 7734-2019.odt

post also form another criteria for considering the

equivalence. It is nobody's case that functions discharged by

Junior Engineer or Assistant Engineer are equivalent to the

functions discharged by Head of the Department in

Maharashtra State Power Generation Company Limited.

That being the case, we do not think, and as rightly

submitted by the learned Assistant Government Pleader, that

any fruitful purpose would be served by remanding the

matter back to the Tribunal for reconsideration and fresh

decision, in accordance with law. The position of the

petitioner as being not eligible for applying to the post of the

Head of the Department in Government Polytechnic Colleges

in Electronics Department is very much clear even at this

stage. We, therefore, find no merit in the petition. The

petition stands dismissed.

Rule is discharged. No order as to costs.

(Smt. M.S. Jawalkar, J.) (Sunil B. Shukre, J.)

Signed By:JAYASHREE SHARAD SHINGNE Jayashree..

Signing Date:04.05.2022 13:11