Bombay High Court
Kirankumar Dagadu Wanve vs Dr Babasaheb Ambedkar Marathwada ... on 20 September, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:22003-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.519 OF 2019
Kirankumar s/o. Dagadu Wanve ... PETITIONER
VERSUS
1. Dr. Babasaheb Ambedkar
Marathwada University Aurangabad,
through its Registrar
2. Shri B.A. Chopde,
Vice Chancellor,
Dr. Babasaheb Ambedkar Marathwada
University Aurangabad
3. His Excellency the Hon'ble Chancellor,
Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad Rajbhavan
Malbar Hill, Mumbai
4. The Principal Secretary,
Higher and Technical Education
Department, Mantralaya, Mumbai 400 032
5. Sanjay s/o Kishanrao Pawar ... RESPONDENTS
WITH
WRIT PETITION NO.9908 OF 2019
Sanjay s/o. Kishanrao Pawar ... PETITIONER
VERSUS
1. The State of Maharashtra
through Principal Secretary
Higher and Technical Education
Mantralaya, Mumbai - 400032
2. The Hon'ble Chancellor,
Dr. Babasaheb Ambedkar
Marathwada University Aurangabad,
Rajbhavan Malbar Hill, Mumbai
3. Dr. Babasaheb Ambedkar Marathwada,
University, Aurangabad through
it's Registrar
1/14
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4. Shri B.A. Chopde (deleted as per Court's order dated
Vice-Chancellor, 13.08.2019 and 27.09.2019)
Dr. Babasaheb Ambedkar
Marathwada, University, Aurangabad
5. Smt. Sadhana Pande, ( deleted as per Court's order dated
Incharge Registrar, 13.08.2019 and 27.09.2019)
Dr. Babasaheb Ambedkar
Marathwada, University, Aurangabad
6. Kirankumar s/o Dagadu Wanve ... RESPONDENTS
...
Advocate for petitioner in WP/519/2019
and for Respondent No.6 in WP/9908/2019: Mr. A.S. Deshpande
Advocate for petitioner in WP/9908/2019 : Mr. D.J. Choudhari
Advocate for Resp. Nos.1 & 2 in WP/519/2019
& for Resp. No.3 in WP/9908/2019 : Mr. S.S. Thombre
AGP for Resp. Nos.1 & 2 in WP/9908/2019: Mrs. Kalpalata Patil
Bharaswadkar
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
Reserved on : 30.07.2024
Pronounced on : 20.09.2024
JUDGMENT (PER : MANGESH S. PATIL, J.) :
Heard. Rule in both the matters. It is made returnable
forthwith. Mr. S.S. Thombre waives service for the respondent -
University. The learned advocates for the petitioner/s waive service of
notice to the respective petitioner who have been arrayed as respondent
in one another's proceeding, and Mrs. Bharaswadkar waives service for
respondent - State.
2. These are separate writ petitions by two candidates aspiring
to be selected to the post of Assistant Registrar in the selection process
undertaken by the respondent - University pursuant to the advertisement
dated 06.03.2012. Since the dispute arises out of the recruitment process
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and most of the facts are admitted, in order to avoid rigmarole both these
matters are being disposed of by this common judgment and order.
3. Obviating mention to the chequered history, it would suffice
to observe that the advertisement was published for recruitment of six
posts of Assistant Registrar and the post in question was expressly
reserved for VJ-A category, albeit, as per the advertisement so also
general instructions in clause 10.4 and even the provisions of Section
4(3) of the Maharashtra State Public Services (Reservation for Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jati), Nomadic
Tribes, Special Backward Category and Other Backward Classes) Act,
2001 (herein after the Reservation Act), though, as per the roster, the
post was reserved for VJ-A, it was interchangeable amongst the other
categories that is NT-B, NT-C and NT-D.
4. The eligibility criteria was prescribed inter alia of having
50% marks in the Post Graduate Degree of the statutory University and
five years experience in administrative cadre not below the rank of
Superintendent or Lecturer, with three years teaching experience.
Besides, few other criteria were also provided like proficiency in the
language, computer knowledge and administrative experience.
5. The selection was to be made on the basis of the marks
scored at the written examination of 70 marks, interviews of 20 marks
and experience which was of 10 marks. The benchmark was only
prescribed for the written exam of scoring 40% of 70 marks. No separate
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benchmark was fixed in respect of total score.
6. There is also no dispute about the scores. Petitioner Wanve
had scored 66.16 marks (Written Test 53/70, Experience 10/10 and Oral
3.16/20), whereas, petitioner Pawar had scored 49.83 marks (Written
Test 32/70, Experience 10/10 and Oral 7.83/20).
7. After some issues were raised by both these petitioners by
filing writ petitions, ultimately the interviews were conducted by the duly
constituted selection committee comprising of six members, on
20.08.2018 but it resolved that no candidate was suitable. Admittedly,
the Chancellor's nominee had recorded a dissent note in the minutes and
opined that these two petitioners could have been considered. Aggrieved
thereby, the petitioners are before this Court in separate writ petitions.
8. Mr. Wanve, as submitted by his learned advocate
Mr. Despande, is challenging the process inter alia attributing mala fides
on the part of the duly constituted selection committee except the
Chancellor's nominee who had put up a note of dissent. He would
categorically point out as to how except Chancellor's nominee, the other
five members had given him negligible marks out of 20 in the interview.
He would submit that still, he could score fairly well in aggregate having
scored 66.16 marks. There was no benchmark for the performance at the
interview though it was there for the written test at 40% out of 70 marks.
He would, therefore, submit that the selection committee ought not to
have but seems to have changed the rules of the game after it was played,
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as held in the matter of Durgacharan Misra Vs. State of Orissa and Ors.;
(1987) 4 Supreme Court Cases 646. He would submit that even though
petitioner - Pawar was from VJ-A category, since the post was
interchangeable, having scored highest marks amongst all the candidates
Mr. Wanve ought to have been selected and appointed.
9. Mr. Deshpande would, lastly, submit that in fact, there were
six posts of Assistant Registrar and a person appointed from open
category Mr. Nage had scored 65.2 marks and Mr. Wanve in spite of
having scored more, irrespective of the category ought to have been
selected and appointed.
10. Per contra, the learned advocate for the University would
justify the action of selection committee finding no suitable candidate
and resolving to that effect. He would submit that even if there was a
note of dissent, five out of six members were unanimous and had found
none of the candidate suitable for being selected. Since it is a matter of
selection process conducted by a duly constituted committee comprising
of six individuals, in the absence of strong evidence/material, to attribute
mala fides or procedural impropriety, this Court while exercising the
judicial review under Article 226 of the Constitution of India has
limitations. It was a conscious decision taken unanimously and cannot be
a subject matter of judicial review. He would rely upon decision in the
matter of Union of India and Ors. Vs. Kali Dass Batish and Anr.; AIR 2006
Supreme Court 789.
947.WP.519.2019 +.odt
11. Mr. Chaudhari learned advocate for the petitioner - Pawar
would submit that the petitioner belongs to VJ-A category. As per roster
the post in question was reserved for that category. Though it was
interchangeable amongst VJ-A, NT-B, NT-C and NT-D, it is only if a
suitable candidate was not available from VJ-A category that it could
have been offered to the other sub-categories that is NT-B, NT-C and NT-
D. He would submit that since petitioner - Pawar had scored maximum
marks from amongst the candidates from VJ-A category, there was no
reason for the selection committee to resolve that no candidate was
found suitable. As is the stand of petitioner - Wanve, Mr. Choudhari
would also point out that though the resolution was unanimous,
Chancellor's nominee had put up a note of dissent and petitioner - Pawar
could have been easily selected and appointed.
12. Mr. Chaudhari would submit that claim of petitioner Wanve
simply on the basis of interchangeability of the post amongst VJ-A, NT-B,
NT-C and NT-D is misplaced. As the post was reserved for VJ-A category,
it is only in the case of non-availability of any candidate from that
category that Mr. Wanve could have laid claim. Since the petitioner -
Pawar had, admittedly, scored more than 40% marks out of 70 in the
written examination, which alone was prescribed as the benchmark, there
was no reason for the selection committee to deny him the selection and
the post.
13. Mr. Choudhari would, additionally, submit that even in the
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earlier selection process for the same post conducted in the year 2006
petitioner - Pawar was selected by the duly constituted committee as the
first preference if the person selected Mr. Netke D.M. could not join. He
would submit that the whole action of the selection Committee to abort
the selection process is arbitrary.
14. We have considered the rival submissions and perused the
papers.
15. There is no dispute about the fact that in all six posts of
Assistant Registrar were advertised and the seat against which both these
petitioners are seeking to be selected and appointed, was reserved for
VJ-A category. There is also no dispute that not only in the advertisement
but the instructions contained a specific stipulation that that post was
interchangeable amongst VJ-A, NT-B, NT-C and NT-D. Even as per
Reservation Act, 2001, Section 4(3) such a seat would be
interchangeable.
16. There is also no dispute about the fact that the selection was
to be made on the basis of total 100 marks, wherein, Written
Examination was of 70 marks, Education Qualification and Experience
were to have 5 marks each and the remaining 20 marks were of
interview. The benchmark was provided only for the written examination,
of scoring minimum 40% which comes to 32 marks out of 70 marks.
There was no stipulation providing for any benchmark for the
performance at the interview.
947.WP.519.2019 +.odt
17. There is also no dispute about the fact that in aggregate
petitioner - Wanve had scored 66.16 whereas petitioner - Pawar had
scored 49.83. There is not even a dispute that both had crossed the
benchmark of scoring 40% in the written examination. Admittedly, the
petitioner - Wanve was not from VJ-A category but was from NT-D
category. Even it is not in dispute that the petitioner - Wanve had scored
3.16 and petitioner - Pawar had scored 7.83 at the interview.
18. Once having borne in mind the aforementioned facts and
circumstances, it is apparent that petitioner - Pawar who is belonging to
VJ-A category has been in the process and even staking a claim for being
selected and appointed against that post. Sub-Section 3 of Section 4 of
the Reservation Act, 2001 clearly mentions that the reservations specified
for categories mentioned at serial Nos.3 to 6 from Sub-Section 1 which
sequentially are, VJ-A, NT-B, NT-C and NT-D, shall be inter-transferable.
However, it further provides that if suitable candidates for the posts
reserved for any of the said categories are not available in the same
recruitment year, the post/s shall be filled by appointing suitable
candidate/s from any other of the said categories. It is thus abundantly
clear that percentage of reservation specified under Sub-Section 2 apart,
it is only when a suitable candidate/s for the post of the said category
is/are not available that it can be filled by a suitable candidate from the
other three categories. It cannot be interpreted to mean that irrespective
of percentage of reservation any seat reserved for any of these four
947.WP.519.2019 +.odt
categories can be filled in without any reference to the specific
reservation and roster point. Meaning thereby, it is only if according to
the roster when a post is to be filled in from a specific category out of
these four but there is no suitable candidate, that it can go back to the
other categories.
19. The advertisement as also the instructions to the aspiring
candidates expressly stipulated and described that one post of Assistant
Registrar was reserved for VJ-A. It is thereafter by a bracketed portion it
was notified that the post was inter-transferable amongst these four
categories. The fact that such inter-transferability was expressly notified
by putting a bracket was clearly in consonance with the provision
contained in Sub-Section 3 of Section 4 of the Reservation Act.
20. Once having reached this stage, when the petitioner - Pawar
is from VJ-A category for which the post in question was reserved, it is
only if either he or other candidates from that VJ-A category were found
not suitable that the post could have been filled by a candidate from the
other three categories that is NT-B, NT-C and NT-D. Petitioner - Wanve
being a NT-D category candidate would not have any vested right of
being considered for selection and appointment against that post unless
petitioner - Pawar was held to be not suitable. It is only to this extent
that petitioner - Wanve can place his foot to keep the door ajar.
21. This takes us to the decision of the selection committee to
hold both these petitioners as also the other candidates as not suitable.
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22. As per the service jurisprudence, and the inherent limitations
on the powers of this Court to undertake judicial review in the matter of
selection process, it would not suffice for the petitioners to contend and
point out some defects or errors and attribute some ill-intention. Suffice
for the purpose to observe that even if it is a matter of record that the
selection committee was comprising of six members including the Vice-
Chancellor and the impugned decision holding that no suitable candidate
was found was a majority decision, wherein, five members had
unanimously reached the conclusion, the dissenting note of the 6 th
member, who was the Chancellor's nominee, would not take the
petitioners case any further much less would not be sufficient to attribute
gross error or arbitrariness in undertaking the selection process. Since it
was decided by the Selection Committee that no candidate was suitable,
even there would not be any substance in alleging and attributing mala
fides on the part of the members of the selection committee. Being the
experts if they, by such a thumping majority, could unanimously reach a
conclusion, it would not be within the realm of the judicial review to
undertake any further scrutiny and substitute its inference in place of the
decision of the selection committee.
23. Merely pointing out that the other members had given very
less marks and only the Chancellor's nominee could give fair marks
would not ipso facto be sufficient to upset the majority decision of the
selection committee holding that no candidate was suitable for the post.
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24. Obviously, it is trite that rules of the game cannot be changed
after it was played, being the basic theme, as laid down in the matter of
Durgacharan Misra's case (supra), the submission of Mr. Deshpande to
resort to it is of no consequence for the simple reason that it is based on
hypothesis. There is absolutely no material to demonstrate that the
selection committee having applied some parameter without any
indication to the candidates before hand. Though no benchmark was
provided for the over all selection, and was prescribed only for, in all
probability, weeding out unsuitable candidates securing less than 40% of
marks in the written test, it cannot be said that any benchmark was
actually applied.
25. Assuming for the sake of arguments that the ultimate
decision of the selection committee to hold that no candidate was found
suitable is based on purely on the basis of the score at the interview, the
petitioner - Pawar who is VJ-A would get selected automatically having
scored better (7.83/20) than petitioner - Wanve (3.16/20). As has been
observed earlier since the post in question was specifically reserved for
VJ-A category, petitioner - Pawar could be preferred as opposed to
petitioner - Wanve who is from NT-D category. Therefore, there is no
substance in the submission of Mr. Deshpande in respect of non-
observance of the principle laid down in the matter of Durgacharan Misra
(supra). It is not the matter of changing the rules of the game.
26. The argument of Mr. Deshpande that an open candidate Mr.
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Nage, who had secured 65.2 marks, having been appointed against one of
the six posts, petitioner - Wanve having scored more than him at 66.16,
and ought to have been selected is indeed appealing. However, one
cannot lose sight of the fact that for whatever reasons, though there were
six posts of Assistant Registrar advertised providing for reservation
according to the roster, the selection process to the extent of the other
posts except the post in question was allowed to be concluded
independently. Pursuant to the disputes amongst these petitioners and
another candidate Mrs. Rathod, who all had preferred writ petitions and
even there was a petition of some association, only to the extent of the
post in question, the selection process lingered. This, in all probability,
has resulted in such dichotomy.
27. One need not delve to discuss as to how the reservation
policy is to be implemented. Irrespective of the category the selection has
to be on the basis of merit only across all the candidates. It is thereafter
that the reservations are to be applied. This would enable a meritorious
candidate of a reserved category to get selected against an unreserved
post purely on the basis of merit. This sequence ensures and avoids the
paradoxical situation as is now being pointed out by Mr. Deshpande,
wherein, Mr. Nage having scored less than petitioner - Wanve could be
selected against an unreserved post. Precisely for this reason, had all the
six posts of Assistant Registrar been filled in in the same selection process
everything could have fallen in place.
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28. When the selection process was disrupted and was allowed
to be proceeded without any demur, it would lead, as it is being
demonstrated in the present matter, to such incongruous effect.
29. It is not the case of the petitioner - Wanve about having ever
challenged such holding of selection process in a piecemeal manner and
he ever having even independently objected to selection of Mr. Nage who
had scored less than him. Consequently, petitioner - Wanve cannot derive
any benefit from such state of affairs.
30. This boils down to the fact that petitioner Pawar being a
VJ-A candidate for which the post in question was reserved was also in
the process and had scored more than petitioner - Wanve, at the
interview, but still neither of them was found suitable. Since it is a
matter of selection process conducted by a duly constituted committee
comprising of six individuals including the Vice-Chancellor of the
University, unless there is gross arbitrariness and serious mala fides
attributable to all the members of the selection committee, which
according to us cannot be made out on the basis of the facts
demonstrated, we are bound by the consistent view in catena of decisions
viz. R.S. Dass Vs. Union of India, (1987) 1 SCR 527, National Institute of
Mental Health and Neuro Sciences Vs. K. Kalyana Raman and Ors.;
MANU/SC/0342/1992, and M.V. Thimmaiah and Ors. Vs. Union Public
Service Commission and Ors.; (2008) 2 Supreme Court Cases 119. This
court cannot sit in appeal over the decision of the selection committee.
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Since none has been selected even bias cannot be attributed as also the
mala fides.
31. Resultantly, there is no merit in either of the petitions and
both are liable to be dismissed.
32. The writ petitions are dismissed. Rules are discharged.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
habeeb
