Bombay High Court
Anil S/O Dnyaneshwar Kakde vs The State Of Mah. Thr. The Secy. ... on 13 September, 2022
Bench: S.B. Shukre, G. A. Sanap
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL WRIT PETITION NO. 831 OF 2010
Anil S/o. Dnyaneshwar Kakde
Aged 37 Years, Occ. Service,
R/o. Gaikwad Building, Saraswati Nagar,
Ward No. 10, Chikhli,
Dist. Buldhana .. PETITIONER
...VERSUS...
1. The State of Maharashtra,
through the Secretary, Health Department
Mantralaya, Mumbai- 400032
2. The District Collector and
the Chairman of the District
Selection Board, Akola
3. The Chief Executive Officer,
Zilla Parishad, Akola
4. Dilip S/o. Wasudeorao Lingot,
Aged 38 Yrs. Occ. Service,
Health Supervisor, Panchayat
Samiti, Akot, Dist. Akola .. RESPONDENTS
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Shri Rahul Tajne, counsel for the petitioner
Shri K. L. Dharmadhikari, AGP for respondent Nos.1 & 2
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CORAM : SUNIL B. SHUKRE AND G. A. SANAP, JJ.
DATE : 13/09/2022
ORAL JUDGMENT : (PER : SUNIL B. SHUKRE, J)
1. Heard Shri. Rahul Tajne, learned counsel for the
petitioner and Shri K. L Dharmadhikari, learned AGP for
respondent Nos. 1 and 2. Shri. K. S. Malokar, learned counsel for
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respondent No. 3 is absent. On the last date also he was absent and
the record shows that on the dates prior to last date Shri Malokar
was absent before this Court. The last date, when matter was called
out for final hearing, was dated 07.09.2022. On that date, the
message to the effect that Shri Malokar required in this Court was
also flashed on the digital notice board but to no avail.
2. Respondent No. 4 is absent and his learned counsel is
also absent. Needless to say all the respondents are duly served
with the notice. On previous date as well nobody was present for
respondent No.4. This petition is more than 11 years old and
therefore, it is overripe for final hearing. After having granted so
many opportunities to respondent Nos. 3 and 4 to present their
respective cases, now it is not possible for this Court to be more
indulgent to these respondents. That is why we have heard this
petition finally.
3. Shri Tajne, learned counsel for the petitioner submits
that in the selection process held for the post of Health Supervisor,
the petitioner and respondent No.4, alongwith other candidates
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had taken part and the petitioner was put in the waiting list at Sr.
No. 1 and respondent No. 4 was put in the selection list at Sr. No.1,
which was based upon their performance in the selection process.
He submits that the petitioner as well as respondent No.4 both
were already working as Health Workers and in the case of
respondent No.4 the appointment as Health Worker was secured on
the strength of 5 % concession obtained by him by virtue of his
getting experience as a part time graduate through the
employment, made available to him by the Employment Exchange.
According to him, the concession of 5 % of marks given to
respondent No. 4 was illegal and in violation of the norms laid
down in the Government Resolution dated 19.03.998 on two
counts.
4. Shri Tajne, learned counsel for the petitioner further
submits that respondent No. 4 was not entitled to receive any
concession of 5 % marks for securing the second appointment as
per Government Resolution dated 19.03.1998, he having already
availed of this benefit while securing the first appointment as
Health Worker and that this fact is confirmed by the reply of the
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Employment Exchange dated 21.01.2010 (page 57) given to the
queries raised in that regard by the petitioner. He also submits that
even a bare perusal of the Government Resolution dated
19.03.1998 would be sufficient to come to the conclusion that the
concession of 5 % additional marks is available only once and at
the time of securing first employment on full time basis. He also
submits that as per the certificate issued by the Employment
Exchange (Page 27) dated 03.05.2003, respondent No.4 had
obtained only 9 months working experience and therefore, as per
the Government Resolution dated 19.03.1998, respondent No.4
was entitled to receive concession of only 2 % and not 5 % of the
total marks obtained in the selection process, but the respondent
No. 4 was given concession of additional 5 % of the total marks
which he had obtained in the selection process.
5. Shri Tajane, learned counsel for the petitioner further
submits that the total marks obtained by respondent No. 4 in the
selection process were 159.28 which included 9 additional marks
given to him on account of the concession availed of by him as per
the Government Resolution dated 19.03.1998 and if 9 marks are
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deducted from the total marks the tally of marks would come down
to 150.28, which would be lesser than the total marks 153.07
obtained by the petitioner and thus, the petitioner would be placed
at Sr. No. 1 in the selection list dated 05.01.2010. This Court while
admitting the petition on 09.12.2010 had made it clear that
appointment of respondent No. 4 as 'Health Supervisor' would be
subject to the final result of this petition.
6. On the above stated grounds, learned counsel for the
petitioner prays for allowing of the petition in toto.
7. Shri K. L. Dharmadhikari, learned AGP for the State
submits that the criterion laid down in the Government Resolution
dated 19.03.1998 and also the facts brought on record through the
certificates issued by Employment Exchange in relation to the work
experience of respondent No. 4 are a matter of record and
therefore, he submits that appropriate order may be passed in the
present case.
8. We have gone through the selection list and also the list
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of wait listed candidates dated 05.01.2010. We have also gone
through the list of marks of the candidates dated 13.07.2009 (Page
28). We find that respondent No.4 had secured total 159.28 marks
which included 9 marks given to him on account of his work
experience as part time graduate in terms of the Government
Resolution dated 19.03.1998. We further find that petitioner had
obtained total 153.07 marks and had not availed of any benefit of
additional concession in terms of Government Resolution dated
19.03.1998 in the selection process. The question, therefore, would
be whether respondent No. 4 was rightly granted concession of
additional marks of 5 % i.e. 9 marks in the selection process, in
terms of Government Resolution dated 19.03.1998 ? However,
upon consideration of the criterion prescribed in the Government
Resolution dated 19.03.1998 and the certificate of work experience
issued by Employment Exchange and also the document showing
respondent No. 4 as having availed of this concession earlier, our
answer to the question is in the negative. The reasons for the
answer are stated in the ensuing paragraphs.
9. As rightly submitted by the learned counsel for the
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petitioner, bare perusal of Government Resolution dated
19.03.1998 discloses that its object is to give a fillip to the
unemployed candidates in their effort to secure full time
Government employment and therefore, at the time of their first
attempt, in getting Government employment, such candidates are
given concession of additional marks @ 2% for every year of their
experience as part time graduates subject to maximum of 5 % of
the total marks. In the present case, the information obtained by
the petitioner from Zilla Parishad Amravati vide its communication
dated 15.01.2010 (Page 38) shows that the petitioner had secured
his first Government employment as Health Worker and at that
time he had availed of the concession of additional marks in terms
of Government Resolution dated 19.03.1998. If such is the factual
position, the petitioner was not entitled to avail of the same benefit
while securing his second Government employment with a view to
improve his job prospects. But, the respondent No. 4 was given
such concession and it was in blatant violation of the Government
Resolution dated 19.03.1998. Giving of such benefit to respondent
No. 4 also frustrated the object sought to be achieved by
Government Resolution dated 19.03.1998. The Employment
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Exchange Amravati, vide its reply/communication dated
21.01.2010 (Page 57) to the query of the petitioner, raised under
the Right to Information Act, has also confirmed this fact. It was
categorically stated that such concession could not be availed of
and could not be granted while securing second Government
employment.
10. Even otherwise, the respondent No. 4, considering his
actual work experience as a part time graduate, which was only of
9 months, was not entitled to be given concession of additional
5 % marks of the total marks stipulated in the selection process and
was entitled to receive the concession of not more than 2 % of the
total marks. Therefore, on this count also, the calculation of the
total marks obtained by the respondent No. 4 was erroneous.
11. Thus, we find that the respondent No. 4 was never
entitled to receive any concession of 5 % additional marks and if
this was so, the respondent No.4's total tally of marks could not
have been more than 150.28 thereby pushing him down in his
merit performance and giving him a place at suitable position in the
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list of wait listed candidates resulting into upgrading of the position
of the petitioner in the list of selected candidates apparently to the
top in open category. We, therefore, find that this petition deserves
to be allowed.
12. The writ petition is allowed in terms of prayer clause
(A).
13. The appointment order shall be issued to the petitioner
with all consequential benefits within four weeks from the date of
the order accordingly.
14. Registrar (Judicial) is instructed to send the
authenticated copy of this order to respondent No. 3 for necessary
action and compliance in the matter.
15. Rule is made absolute in the above terms. No costs.
(G. A. SANAP, J.) (SUNIL B. SHUKRE, J.)
Namrata
Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:14.09.2022 12:28
