Bombay High Court
Sunil S/O Nilkanth Washimkar vs The State Of Maharashtra, Thr. ... on 13 February, 2023
Bench: Sunil B. Shukre, Vrushali V. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITIO N N O. 1 3 8 3/20 2 2
Dr. Sunil s/o Nilkanth Washimkar,
Aged about 51 years,
Occ. Govt. Service,
R/o 35, Murari Apartments, Ashok
Colony, Khamla, Nagpur-440 025.
(Mob.No.9823065380)
(E-mail :sunil_ [email protected]) ...Petitioner
- Versus -
1) The State of Maharashtra,
through its Secretary, Medical
Education & Drugs Department,
Mantralaya, Mumbai-32.
2) The Director of Medical Education &
Research, Saint George Hospital,
Mumbai.
3) The Maharashtra Public Service
Commission through its Secretary
(Direct Recruitment), having Office
at 578th Floor, Kuprez Telephone
Exchange Building, Maharshi Karve
Road, Kuprez, Mumbai-400 021. ... Respondents
-----------------
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Mr. A.A. Naik Advocate for the Petitioner.
Mr. D.L.Dharmadhikari, Assistant Government Pleader for
Respondent Nos.1 to 3.
C O R AM : S U NIL B . S H U K RE
MRS . VR U S H ALI V. J O S HI , J J .
DATE : 1 3.0 2.2 0 2 3.
ORAL JUDGMENT (Per Sunil B. Shukre, J.)
1. Heard.
2. Leave to file on record a Pursis marked as
document-A along with three documents marked as
documents-A1, A2 and A3 is granted and copies of Pursis
and documents be furnished to learned AGP forthwith.
3. Rul e . Rule made returnable forthwith. Heard
finally by consent of learned counsel for the parties.
4. The petitioner is an Associate Professor
working with Superspeciality Hospital, Government
Medical College, Nagpur. The petitioner, in response to
the advertisement No.008/2021, inviting applications from
the eligible Associate Professors in Cardiology for their
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selection and appointment as Professor in Cardiology,
made an application for that post. Along with his
application, the petitioner had enclosed all the necessary
documents including copies of paper publications and
letters showing dates of acceptance of those research
papers which were sent by the petitioner for their
publication in the prescribed journal. During scrutiny of
the application, the petitioner, however, was found to be
ineligible to take part in the selection and appointment
process. The decision of the MPSC holding the petitioner
"ineligible" for the post of Professor in Cardiology by
E-mail dated 4.3.2022 was stated to be sent to him by
E-mail. This E-mail was, however, sent to the petitioner
on wrong E-mail ID and which was, "sunil-
[email protected]" although the correct E-mail ID of
the petitioner was, "[email protected]", and thus
was not received by the petitioner.
5. Sometime later, the petitioner came across
names of shortlisted candidates when he found his name
missing and realised that there was something amiss
about the selection process and, therefore, he questioned
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the action of the MPSC by filing an appropriate application
before the Maharashtra Administrative Tribunal, Nagpur.
During the course of hearing before the Tribunal, the
petitioner learnt about the communication of he being
ineligible to take part in the selection process. That was
the communication sent by the MPSC on his wrong Email
ID and when the petitioner pointed out this fact to the
Tribunal that the physical copy of the E-mail dated
4.3.2022 was handed over to the learned counsel for the
petitioner and it was then the petitioner really and
authentically learnt about he having been found ineligible
to take part in the selection process. The Tribunal did not,
however, take any notice of this lapse and, nevertheless,
dismissed the application of the petitioner upholding the
decision of the MPSC.
6. Being aggrieved by dismissal order passed by
the Maharashtra Administrative Tribunal, the petitioner has
approached this Court by filing this petition.
7. The learned counsel for the petitioner contends
that the dismissal order passed by the MPSC is bad in law
as it does not consider the most relevant aspects of the
matter, in particular, the fact that the research paper of
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the petitioner was accepted for publication by the
concerned International journal on 19.8.2021, much
before the last date of filing of the application, which was
26.8.2021.
8. The learned AGP appearing for the
respondents, opposes the petition. According to him, the
decision taken by the MPSC is based upon the decision of
the Experts Committee. He submits that the first decision
taken by the MPSC was based upon the earlier decision of
the Experts Committee and subsequently when this matter
was again directed to be referred to the Experts
Committee for fresh consideration, the Experts Committee
found that the fourth research paper on the subject
"Retrospective Study of Clinical & Epidemiological
Parameters of PCI PA" was published after due date of
the application i.e. 26.8.2021 and, therefore, the Experts
Committee found afresh that the petitioner could not be
said to be eligible for taking part in the selection process
and that this fresh opinion of the Experts Committee has
been relied upon by the MPSC. He submits that when the
Experts Committee has given its opinion, it is not open to
the MPSC to disagree with the opinion of the Experts
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Committee and, in fact, the opinion of Experts Committee
would also be binding upon this Court. Thus, he submits
that there is no substance in the petition.
9. The grievance of the petitioner is that even
though he is eligible to take part in the selection process
initiated vide advertisement No.008/2021 for appointment
to the post of Professor in Cardiology, he is being unjustly
found to be ineligible, has charted a chequered course of
litigation which has seen the dispute being tossed in
between the Tribunal and this Court and then this Court
and the Experts Committee. But, on the flip side of it, there
is a narrowing down of the controversy. Now, the issue of
ineligibility or otherwise of the petitioner is confined to
controversy enveloping publication of one research paper
out of four research papers submitted by the petitioner to
the prescribed journal, as per the Medical Council of India/
National Medical Council Rules.
10. It so happened that initially the Scrutiny
Committee had found that out of four research papers
publications, two research papers publications were not as
per the rules framed by the Medical Council of
India/National Medical Council Rules. The Scrutiny
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Committee, however, had also found that one research
paper was published as per the MCI/NMC Rules. Later
on, when the petitioner was served with physical copy of
the E-mail dated 4.3.2022, another reason was given
by the MPSC for finding the petitioner to be "ineligible". In
this E-mail, it was stated that the petitioner had not
produced copies of any publications as per the
advertisement of the Professor in Cardiology, Government
Medical College. However, it was further stated that the
reason for finding the petitioner to be "ineligible" earlier
was an inadvertent mistake. It was further stated that the
request of the petitioner for he being considered as,
"eligible" was being examined separately. Of course, on
the basis of this communication, the Administrative
Tribunal dismissed the application of the petitioner but, it
was only this communication, that weighed with this Court
in the present petition prompting it to issue a direction on
9.3.2022 to respondent no.3 i.e. the MPSC to examine
the request of the petitioner and decide the issue, with a
further direction to spell out the reasons, if the decision
was adverse to the petitioner.
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11. After the direction dated 9.3.2022, the MPSC,
through Experts Committee, was expected to have a fresh
look at the whole issue but, neither the Experts Committee
nor the MPSC embarked upon fresh consideration of the
issue and the MPSC, relying upon it's E-mail dated
4.3.2022, discussed earlier, rejected the claim of the
petitioner on the ground that out of four research papers
publications, only one research paper publication was as
per Rules and, therefore, reiterated its finding that the
petitioner was ineligible. This was no less than a case of
non-application of mind to the facts of the case and the
direction issued by this Court on 9.3.2022. When this folly
was brought to the notice of this Court, this Court took it's
cognizance, and passed another direction on 13.10.2022.
This Court directed respondent no.3 - the MPSC to
examine the claim of the petitioner regarding his being
eligible or otherwise by making fresh reference to the
Committee of Experts. Accordingly, the MPSC referred
the issue to the Committee of Experts for its fresh
consideration and now, by pursis filed on record bearing
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No.04/22, decision of the Committee of Experts is placed
on record.
12. We have gone through the fresh decision of the
Committee of Experts. As stated earlier, it discloses that
the controversy relating to publication of four research
papers as prescribed in the advertisement now has been
reduced to publication of only one research paper. It is
further seen that the Committee of Experts has now
accepted that the publication of three papers is as per
Rules and it has objection only in respect of publication of
one research paper having title, "Retrospective Study of
Clinical & Epidemiological Parameters of PCI PA".
13. The Committee of Experts, it is further seen,
has opined that the paper about which it has objection has
been published after due date i.e. 26.8.2021, which was
the last date of filing of the application and hence it found
that the petitioner was "ineligible". This opinion of the
Committee of Experts, in our view, is perverse as it does
not take into account the relevant facts and also the
guidelines issued by the Medical Council of India, as
submitted by Mr. Naik, learned counsel for the petitioner.
These guidelines are contained in document-A3. They
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show that the requirement of publication of a research
paper in the prescribed journal is fulfilled not only by its
actual publication in the journal but also by the fact that
the research paper is "accepted for publication", even
though research paper may not have been actually
published. There is no dispute about these guidelines.
These guidelines, in our opinion, clinch the issue in favour
of the petitioner here for the reason that the fourth
research paper of the petitioner objected to by Experts
Committee was accepted for publication by Editor of
International Journal of Scientific Research on 19.8.2021.
This is evident from the E-mail dated 19.8.2021 received
by the petitioner from the Editor of the journal. A copy of
this E-mail had also been undeniably submitted by the
petitioner along with his application, though it's a different
thing that it went unnoticed by the MPSC or the Experts
Committee. Of course, document, which is marked as
document-A1, as pointed out by learned AGP, does show
that it is an E-mail addressed to the co-author of the fourth
research paper, Mr. Atul Singh Rajput and not to the
petitioner. But, there is one more document, marked as
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document-A2, which shows that it is a communication
indicating acceptance of the said research paper and it
has been addressed to both the authors including the
petitioner. Even otherwise, addressing of a communication
to one of two authors in a case like this would not negate
the fact that the research paper in question has been
accepted for publication before the due date as the paper
is written by two authors, the petitioner being the first
author and Mr. Rajput the co-author. The respondent
no.3 - MPSC does not also have any dispute about the
fourth research paper having been written by the petitioner
and Atul Singh Rajput of which, the petitioner is the first
author. Such being authorship of the fourth research
paper, the E-mail vide document A1 having been
addressed to the second author loses its significance from
the view point of fulfillment of eligibility criteria by the
petitioner for the post for which he has made the
application. Even otherwise, there is one more E-mail
similarly received by the petitioner from the Editor of
International Journal of Scientific Research on 19.8.2021,
which is at page 50-A showing acceptance of
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the fourth research paper of the petitioner before the due
date, copy of which has been admittedly submitted by the
petitioner along with his application. This document at
page 50-A effectively meets the objection of the learned
AGP for the respondents in this regard and enables us to
reject the same.
14. Once it is established on record that the
Medical Council of India considers the research papers
accepted for publication as eligible for various posts and it
is found that the fourth research paper of the petitioner
was accepted for publication on 19.8.2021, much before
the due date of 26.8.2021, the Committee of Experts could
not have found the petitioner to be not eligible on the
ground that the publication of the research paper of the
petitioner was after the said due date. In fact, the
publication of any research paper in an international
journal is only a consequence of the decision to accept the
research paper for publication and this consequence may
ensue immediately after the acceptance of the research
paper for publication or may visit after a gap of several
days, months and even years. That apart publication of
any research paper, which is already accepted for
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publication depends various factors such as availability of
space in the journal, frequency of the journal and so on.
These things are not within the control of the researcher
and, in fact, should not matter for determining the eligibility
of a researcher for a particular post or qualification. What
should matter in such a case is the date on which a
research paper is accepted for publication as it is such
acceptance only which indicates the worth of research
paper for its publication. In our view, it is only the fitness
or worthiness of research paper for its publication, which
comes from a decision of it's acceptance for publication,
which should determine the issue of eligibility of the
researcher for a particular post or qualification. The
guidelines issued by the Medical Council of India,
(document-A3), in our view, make sense and they only
show that Medical Council of India accepts that it is only
the finding about worthiness of research paper for its
publication which matters and not it's actual publication.
The Committee of Experts, however, glossed over this
most important aspect of the matter and reached a
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patently wrong and perverse conclusion. It, therefore,
deserves to be interfered with.
15. In this view of the matter, we find that the
scrutiny Committee has committed serious error of fact
and law and has misdirected itself by taking into
consideration something which is really not relevant for
deciding the issue in the petition. It also appears to us
that the MPSC - respondent no.3 has only mechanically
followed decision of the Committee Experts, though it
ought to have rejected it. Opinion of any Experts
Committee would be binding on the MPSC, when it is not
vitiated by any perversity or ignorance of some relevant
fact or consideration of some irrelevant fact. By the same
principle, the opinion of the Experts Committee would also
not bind this Court and, therefore, we are of the view that
this is a fit case for making interference in the matter.
16. In the result, the petition is allowed. The
impugned order passed by the Maharashtra Administrative
Tribunal and also the impugned decision taken by the
MPSC are hereby quashed and set aside.
17. It is declared that the petitioner satisfies the
eligibility criteria for appointment to the post of Professor in
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Cardiology under the Maharashtra Medical Education &
Research Service, Group-A, as per Advertisement
No.008/2021 published on 6.8.2021.
18. We direct the MPSC to conduct the process of
selection and appointment to the post of Professor in
Cardiology under Maharashtra Medical Education &
Research Service, Group-A by allowing the petitioner to
take part in the selection process.
19. We further direct the MPSC to take it's final
decision in the matter in accordance with law and in the
light of the observations made hereinabove, at the
earliest, preferably within eight weeks of the receipt of the
writ of this Court.
20. Rule is made absolute in the above terms. No
costs.
JUDGE JUDGE
Ambulkar.
