Laxmikant Sambhaji Khade vs The State Of Maharashtra, Through ...
2023 Latest Caselaw 8005 Bom

                                    1                               WP-7009-2019.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR
                          Writ Petition No.7009 of 2019


 Laxmikant Sambhaji Khade,
 Aged about 38 years,
 Occ: Service,
 R/o Plot No.18, C/o Sudhakar Kawade,
 Shivshakti Nagar, Chikhali Road,
 Nagpur-34.                                                 ... Petitioner


 Versus


 1. The State of Maharashtra,
      through its department of Public Health,
      Mantralaya, Mumbai,
      through its Secretary.


 2. Maharashtra Public Service Commission,
      Cooprej Telephone Exchange Building,
      Maharashi Karve Marg, Cooprej,
      Mumbai-21.                                            ... Respondents


 Shri Mohan Sudame, Counsel for Petitioner.
 Shri A.A. Madiwale, Assistant Government Pleader for Respondents.


          CORAM : A.S. CHANDURKAR & MRS. VRUSHALI V. JOSHI, JJ.
          Date when arguments were heard              : 19th June, 2023.
          Date when the judgment was pronounced : 8th August, 2023.


 JUDGMENT (PER A.S. CHANDURKAR, J.) :

1. Rule. Rule made returnable forthwith and heard the learned

counsel for the parties.

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2. The challenge raised in the present writ petition is to the order

passed by the Maharashtra Administrative Tribunal in Original

Application No.274 of 2018 dated 26-6-2019 thereby dismissing the

said Original Application preferred by the petitioner. In the said

Original Application, the petitioner had challenged the decision of the

respondent No.2-Maharashtra Public Service Commission (for short,

'the MPSC') by which the petitioner was held ineligible for

appointment on the post of Chief Administrative Officer, Group-A.

3. The MPSC issued an advertisement dated 7-2-2014 calling for

applications for filling in the post of Chief Administrative Officer,

Group-A. Under the said advertisement, the educational qualification

required was having a degree or any other equivalent qualification

recognized by the State Government, possessing executive or

administrative experience or both for a period of not less than seven

years gained in a Government department, commercial concern, local

authority or a corporation. According to the petitioner, by virtue of

the Directorate of Health Services (Recruitment) Rules, 2002

(for short, 'the Rules of 2002'), the requirements for the post of Chief

Administrative Officer, Group-A and Administrative Officer, Group-B

have been prescribed. Despite possessing requisite qualification, the

petitioner was held ineligible for being considered for the post of Chief

Administrative Officer, Group-A. The grievance of the petitioner is

that in the light of the qualification prescribed by the Directorate of

Health Services, the petitioner has been held ineligible. The

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Maharashtra Administrative Tribunal held against the petitioner on

two counts, namely that the petitioner had furnished wrong

information while indicating his experience in service. It was stated

by the petitioner that he was in the office of the Taluka Inspector of

Land Records from 21-9-2006 to 7-7-2009. He had also stated that he

was serving at the Government Polytechnic from 9-6-2009 to

17-1-2012. Since the aforesaid period was overlapping, the finding

was recorded that the petitioner had furnished wrong information.

Another ground assigned by the Maharashtra Administrative Tribunal

is that since the post of Chief Administrative Officer, Group-A was a

promotional post in comparison to the post of Administrative Officer,

Group-B, the petitioner did not have the required experience. On

these counts, the Maharashtra Administrative Tribunal dismissed the

Original Application.

4. It is submitted by the learned counsel for the petitioner that

under the Rules of 2002, appointment to the post of Chief

Administrative Officer, Group-A could either be by promotion or by

nomination. The executive or administrative experience of a period

not less than seven years after obtaining the educational qualification

was required. The petitioner sought consideration of his candidature

by nomination since he was below the age of 40 years, but the

Maharashtra Administrative Tribunal proceeded to consider his

entitlement on the premise that he was seeking promotion to the said

post. Without considering the fact that the requirement for seeking

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appointment by nomination was distinct from the requirement while

seeking promotion, the petitioner had been held ineligible. It was

further submitted that though in the application form the petitioner

had mentioned that he was in the office of Taluka Inspector of Land

Records till 7-7-2009 and in the Government Polytechic from

9-6-2009, the latter date was inadvertently mentioned. Referring to

the experience certificate issued by the Education Officer (Secondary),

Zilla Parishad, Nagpur, it was pointed out that the petitioner was

serving with the Government Polytechnic from 9-7-2009 to 17-1-2012.

Hence there was no overlapping of service. Incorrect information had

not been supplied by the petitioner. It was then submitted that since

the advertisement was issued by the MPSC and it was undertaking

recruitment, it ought to have acted in accordance with the

Maharashtra Public Service Commission Rules of Procedure, 2014

(for short, 'the Rules of Procedure, 2014') and especially Rule 4(2)

thereof. As per that Rule, whenever decision is required to be taken

on the general principles to be adopted in the matter of promotion by

nomination, such decision had to be taken by the MPSC itself. There

was no justification on the part of the MPSC in issuing communication

dated 24-3-2017 and seeking the opinion of the Health Department of

the State of Maharashtra. Having found the candidature of the

petitioner eligible from the Other Backward Class category and having

called him for the screening test, it was not permissible to hold the

petitioner to be not eligible when the interviews were being

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conducted. The Maharashtra Administrative Tribunal failed to

consider these relevant aspects and held against the petitioner. In

support of the aforesaid contentions, the learned counsel for the

petitioner relied upon the decisions in P. Mahendran and others Versus

State of Karnataka and others [(1990) 1 SCC 411], Gopal Krushna

Rath Versus M.A.A. Baig (Dead) by LRs. and others

[(1999) 1 SCC 544] and Tushar Babanrao Deshmukh Versus State of

Maharashtra and others [2013(3) Mh.L.J. 673].

5. The learned Assistant Government Pleader appearing for the

respondents relied upon the affidavit-in-reply and supported the order

passed by the Maharashtra Administrative Tribunal. It was submitted

that since the petitioner lacked the requisite experience, he was rightly

not found eligible for being considered for appointment on the post of

Chief Administrative Officer Group-A. The information furnished by

the petitioner in his application form was taken into consideration and

since the service rendered by him was shown to be overlapping, the

Maharashtra Administrative Tribunal rightly held him ineligible for

consideration. The experience possessed by the petitioner was on

posts lower than the post of Superintendent or Head Clerk. He was

therefore not eligible even for the post of Administrative Officer,

Group-B. It was thus submitted that the Maharashtra Administrative

Tribunal considered all the relevant aspects and thereafter passed the

impugned order. There was no reason to interfere with the same.

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6. We have heard the learned counsel for the parties and we have

perused the documents on record. As stated above, the Maharashtra

Administrative Tribunal has found that the experience in service

indicated by the petitioner was by giving incorrect information. It was

found that the service rendered at the office of the Taluka Inspector of

Land Records was from 21-9-2006 to 7-7-2009 and at the Government

Polytechnic from 9-6-2009 to 17-1-2012. It is however seen from the

experience certificate dated 11-8-2014 issued by the Education Officer

(Secondary), Zilla Parishad, Nagpur that there is no overlapping of

services of the petitioner. The said certificate indicates that the

petitioner was in the office of Taluka Inspector of Land Records from

21-9-2006 to 7-7-2009 and in the Government Polytechnic from

9-7-2009 to 17-1-2012. It is urged by the learned counsel for the

petitioner that this experience certificate was uploaded alongwith all

other documents but the same has not been taken into consideration.

There is no specific denial to this aspect by the respondents. The

Maharashtra Administrative Tribunal has proceeded on the basis of the

information furnished in the petitioner's application form

dated 27-2-2014. It is true that the dates are shown to be overlapping

in the said application form. However with the issuance of the

experience certificate by the Education Officer (Secondary), Zilla

Parishad, Nagpur, the position becomes clear that there is no

overlapping of such services. The same has been issued after verifying

the petitioner's service book. The Maharashtra Administrative

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Tribunal in Paragraph 6 has referred to the application form submitted

by the petitioner and has held against him on this count.

7. The other reason assigned by the Maharashtra Administrative

Tribunal is that the post of Chief Administrative Officer, Group-A being

a promotional post, the requisite experience on the executive or

administrative side was necessary. In this regard, when the Rules of

2002 are perused, it becomes clear that under Rule 3, appointment to

the post of Chief Administrative Officer, Group-A can be made either

by promotion or by nomination. A person holding the post of

Administrative Officer, Group-B having not less than three years'

regular service is eligible to be considered for promotion on the post of

Chief Administrative Officer Group-A. Alternatively, appointment to

the said post can also be made by nomination. In that category, if a

candidate is already in service of the Government and is not more

than 40 years of age, he can seek such appointment subject to

fulfilling other requirements. The executive or administrative

experience or both ought to be for a period not less than seven years.

It is his specific case of the petitioner that he satisfies these

requirements for seeking appointment by nomination. It is however

seen that the Maharashtra Administrative Tribunal has proceeded to

consider the experience that is required to apply for the post of

Administrative Officer, Group-B. It thereafter proceeded to observe

that since the post of Chief Administrative Officer, Group-A was a

promotional post, the experience of the petitioner was not fulfilling

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the criteria. Since it was found that the petitioner was not eligible to

apply for the post of Administrative Officer, Group-B, he was not

eligible to seek appointment on the post of Chief Administrative

Officer, Group-A.

We find on reading of Rules 3 and 4 of the Rules of 2002 that

the appointment to the post of Chief Administrative Officer Group-A

can either be by promotion or by nomination. The avenue for seeking

appointment to this post by nomination is also available to a candidate

who is in the service of the Government and is not more than 40 years

of age. It was on this premise that the petitioner was seeking

consideration of his candidature. The Maharashtra Administrative

Tribunal however give importance to the requirements prescribed for

the post of Administrative Officer, Group-B. Those requirements

would be material when a candidate seeks appointment to the post of

Chief Administrative Officer Group-A by promotion. It is for the

reason that only a person holding the post of Administrative Officer,

Group-B can seek promotion to the higher post. The petitioner was

not seeking promotion but was seeking appointment by nomination to

the post of Chief Administrative Officer Group-A. It is thus clear that

the Maharashtra Administrative Tribunal misdirected itself when it

proceeded to hold that as the petitioner was not eligible to hold the

post of Administrative Officer, Group-B, his candidature for the post of

Chief Administrative Officer, Group-A was not liable to be considered.

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8. Yet another aspect that requires consideration is the effect of

Rule 4(2) of the Rules of Procedure, 2014. Thereunder, if any decision

is required to be taken on the general principles to be adopted in the

matter of appointment by promotion or nomination, the same has to

be decided by the MPSC itself. Without doing so, the MPSC on

24-3-2017 sought the opinion of the Public Health Department of the

State of Maharashtra and after receiving such opinion, proceeded to

go by the same. It would be necessary to consider whether this

exercise was permissible in the light of Rule 4(2) of the Rules of

Procedure, 2014. In addition, it is also necessary to consider the

aspect as to whether accepting the recommendations made by the

Public Health Department, the same would result in adopting a

change in the selection criteria after commencement of the selection

process.

9. We find that these material aspects go to the root of the matter.

On the aspect of requisite experience of the petitioner, we find that the

Maharashtra Administrative Tribunal has misdirected itself by

considering the experience required for the post of Administrative

Officer, Group-B for holding the petitioner ineligible to seek

appointment on the post of Chief Administrative Officer, Group-A. As

regards overlapping of service, the matter now stands clarified with

the issuance of the experience certificate dated 11-8-2014 issued by

the Education Officer (Secondary), Zilla Parishad, Nagpur. The third

aspect with regard to the effect of Rule 4(2) of the Rules of Procedure,

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2014 requires consideration. For all these reasons, we are inclined to

set aside the order passed by the Maharashtra Administrative Tribunal

and remit the proceedings to it for fresh consideration in the light of

the observations made hereinabove and after considering other

relevant aspects.

10. Accordingly, the following order is passed :

(i) The order dated 26-6-2019 passed by the Maharashtra Administrative Tribunal in Original Application No.274 of 2018 is set aside.

(ii) The proceedings are remitted to the Maharashtra Administrative Tribunal for fresh consideration in accordance with law.

(iii) It is clarified that all contentions of the parties are kept open for being raised and considered by the Maharashtra Administrative Tribunal.

(iv) We hope that the Original Application would be decided expeditiously and preferably by the end of December 2023.

11. Rule is made absolute in the aforesaid terms with no order as to

costs.

(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)

LANJEWAR