Bombay High Court
Akshay Rajendra Khomne Patil vs State Of Maharashtra Through Its ... on 17 January, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:1466-DB
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14744 OF 2023
WITH
CIVIL APPLICATION NO.12125 OF 2024
IN
WRIT PETITION NO.14744 OF 2023
Akshay Rajendra Khomne Patil
Age: 38 years, Occu: Service,
R/o Shivaji Nagar, TPS Road, Parli,
Tal- Parli Vaijnath, Dist. Beed ....PETITIONER
VERSUS
1. State of Maharashtra,
Through its Secretary,
Ministry of Energy,
Govt. of Maharashtra,
Mantralaya,
Mumbai - 400 032
2. Maharashtra State Power
Generation Company Limited
(MAHAGENCO),
through its Chairman and
Managing Director,
Prakashgad, Plot No. G-9,
Anant Kenekar Marg,
Bandra (East.), Mumbai
3. Executive Director (Human Resources),
Maharashtra State Power Generation
Company Limited (M.S.E.D.C.L.),
Estrella Batteries,
Extension Compound Building,
Labour camp, Dharvi Road,
Matunga, Mumbai ....RESPONDENTS
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(2)
AND
WRIT PETITION NO.14719 OF 2023
Nashir Bashir Patel,
Age: 42 years, Occu: Service,
R/o at post Gulkhand, Tal. Palam,
Tal- Palam, Dist. Parbhani ....PETITIONER
VERSUS
1. State of Maharashtra,
Through its Secretary,
Ministry of Energy,
Govt. of Maharashtra,
Mantralaya,
Mumbai - 400 032
2. Maharashtra State Power
Generation Company Limited
(MAHAGENCO),
through its Chairman and
Managing Director,
Prakashgad, Plot No. G-9,
Anant Kenekar Marg,
Bandra (East.), Mumbai
3. Executive Director (Human Resources),
Maharashtra State Power Generation
Company Limited (M.S.E.D.C.L.),
Estrella Batteries,
Extension Compound Building,
Labour camp, Dharvi Road,
Matunga, Mumbai ....RESPONDENTS
AND
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(3)
WRIT PETITION NO.14720 OF 2023
WITH
CIVIL APPLICATION NO.12126 OF 2024
IN
WRIT PETITION NO.14720 OF 2023
Shaikh Latif Shaikh Mahebub,
Age: 37 years, Occu: Service,
R/o Mamta Colony, Gangakhed,
Tal- Gangakhed, Dist. Parbhani ....PETITIONER
VERSUS
1. State of Maharashtra,
Through its Secretary,
Ministry of Energy,
Govt. of Maharashtra,
Mantralaya,
Mumbai - 400 032
2. Maharashtra State Power
Generation Company Limited
(MAHAGENCO),
through its Chairman and
Managing Director,
Prakashgad, Plot No. G-9,
Anant Kenekar Marg,
Bandra (East.), Mumbai
3. Executive Director (Human Resources),
Maharashtra State Power Generation
Company Limited (M.S.E.D.C.L.),
Estrella Batteries,
Extension Compound Building,
Labour camp, Dharvi Road,
Matunga, Mumbai ....RESPONDENTS
....
Mr Sayyed Tauseef Yaseen, Advocate for petitioners in all petitions
Ms Neha B. Kamble, A.G.P. for respondent No.1 in all petitions
Mr Rahul A. Tambe, Advocate for respondent Nos.2 & 3 in all
petitions
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(4)
CORAM : MANGESH S. PATIL
AND
PRAFULLA S. KHUBALKAR, JJ.
Reserved on : 21st November, 2024
Pronounced on : 17th January, 2025
JUDGMENT (Per : Prafulla S. Khubalkar, J.)
1. Rule. Rule made returnable forthwith. By consent of the
respective parties, the petitions are taken up for final hearing.
2. These petitions, under Article 226 of the Constitution of
India, deal with common grievance of the petitioners who have
impugned the decision of respondent Nos.2/MAHAGENCO and
3/MSEDCL, declaring each of them ineligible for the posts of
'Additional Executive Engineer' and 'Deputy Executive Engineer', on
account of absence of requisite experience of working at 'Independent
Power Producer' (IPP). Since the grievance of these petitioners is
identical raising similar challenge against respondent Nos.2 and 3, all
these three petitions are heard and decided together.
3. The factual set up is succinctly put herewith. The
Maharashtra State Power Generation Company Limited
(MAHAGENCO) the respondents no.2 published an advertisement
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No.09/2022, dated 09/10/2022 inviting applications for the posts of
'Executive Engineer', 'Additional Executive Engineer' and 'Deputy
Executive Engineer'. The advertisement contained details about the
eligibility including the qualifications and experience required for the
respective posts. In response to the advertisement, the petitioners
applied for the respective posts of 'Additional Executive Engineer' and
'Deputy Executive Engineer' and submitted their experience
certificates of having worked in 'M/s Gangakhed Sugar and Energy
Limited', which they claimed to be an IPP i.e. 'Independent Power
Producer'. The petitioners appeared for the written examination and
having stood qualified, their names were shortlisted for the stage of
Documents Verification, as per the list published on 05/04/2023.
4. On 28/10/2023, after the documents verification, a list of
ineligible candidates was published which included the names of the
petitioners being held ineligible due to absence of experience
certificate of IPP as required by the advertisement. On being declared
ineligible, the petitioners submitted representations to the respondents
pointing out that Gangakhed Sugar and Energy Ltd. is an IPP and
therefore, requested that their experience need to be counted for
deciding their eligibility. Since there was no decision on their
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representation and their grievance remained unredressed, they filed the
instant petitions challenging the decision declaring them ineligible and
seeking a direction to consider them for appointment to the posts of
'Additional Executive Engineer' and 'Deputy Executive Engineer' as
per their applications.
5. In response to the petitions, the respondent nos.2 and 3
filed reply dated 27/03/2024 taking a specific stand that the petitioners
have been declared as ineligible on the basis of assessment and
scrutiny of documents by an Expert Committee of the respondents,
comprising of two Executive Engineers (Technical Experts) and
DGM-HR (HR-Experts), which was constituted for deciding the
eligibility for both the posts. The respondents opposed the petition by
contending that the expert committee had scrutinized the documents of
the petitioners in the light of pre-requisites as per the advertisement
and since the petitioners do not have experience of working in IPP,
they are rightly declared ineligible. The respondents have
categorically stated that the experience of Gangakhed Sugar and
Energy Ltd. cannot be considered as requisite experience as per the
advertisement since Gangakhed Sugar and Energy Ltd. is primarily a
sugar factory with major business of production of sugar from
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sugarcane and it is a Co-generation Power Producer which means the
primary reason for operating the power plant is to ensure that the heat
and energy requirement for producing sugar. It is stated that, only
surplus energy generated is sold to the grid and as such, Gangakhed
Sugar and Energy Ltd. cannot be termed as an 'Independent Power
Producer' (IPP) as the power generation work is subsidiary in sugar
production. It is also stated that the representations submitted by the
petitioners were considered by the Chairman and the Managing
Director of the respondents and after considering the earlier opinions
of expert committee, the Chairman and the Managing Director had
maintained the decision of the expert committee declaring the
petitioners ineligible.
6. To controvert the stand of respondent Nos.2 and 3, the
petitioners submitted rejoinder affidavit dated 03/05/2024, stating
therein that the manner of production of electricity by the Gangakhed
Sugar and Energy Ltd. through bagasse which is essentially a residue
and is renewable source of energy. Amongst other contentions, it is
stated that generation of electricity through coal or bagasse does not
make any difference for the purpose of categorizing the company as a
producer of electricity and therefore, it is submitted that Gangakhed
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Sugar and Energy Ltd. has to be categorized as an IPP for the purpose
of deciding eligibility of the petitioners. Along with the rejoinder, the
petitioners have filed on record a Gazette copy of the Maharashtra
Electricity Duty Act, 2016 (for short 'the 2016 Act') and Energy
Purchase Agreement (EPA) between the MSEDCL and M/s
Gangakhed Sugar and Energy Ltd. (GSEL), Gangakhed, Dist.
Parbhani.
7. In response to this, respondent Nos.2 and 3 filed an
affidavit by way of a sur-rejoinder dated 10/06/2024 thereby pointing
out that even after considering the contentions of the petitioners,
Gangakhed Sugar and Energy Ltd. can be at the most considered to be
a 'Captive Power Plant'. Along with other contentions, the
respondents pointed out the specific stipulation contained in the
advertisement which provided that experience certificate issued by
private contractors, proprietors, Captive Power Plants, etc. shall not be
included as 'power generation experience' and on this basis put forth
its stand that the experience of the petitioners in Gangakhed Sugar and
Energy Ltd. cannot be considered for deciding their eligibility.
8. In the backdrop of these pleadings, the learned counsels
submitted their extensive arguments. We have considered the rival
contentions and perused the record.
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9. Advocate Sayyed Tauseef Yaseen, learned counsel for the
petitioners in all these petitions, strenuously argued that the decision of
the respondents in declaring the petitioners ineligible is grossly illegal
in view of the fact that Gangakhed Sugar and Energy Ltd. is IPP for
all purposes and therefore, the experience of petitioners cannot be
discarded. He invited our attention to the advertisement and the
definitions of the terms 'Captive Generation', 'Co-generation' and
'Independent Power Producer' (IPP) as stated in the 2016 Act. He
vehemently argued that the parameters of determining an entity to be
an IPP are exclusively governed by the statutory regime and therefore
the petitioners must be held to be eligible candidates. He also invited
our attention to the Energy Purchase Agreement between the MSEDCL
and M/s Gangakhed Sugar and Energy Ltd. to point out that
Gangakhed Sugar and Energy Ltd. is referred to as 'Generator
Developer'. Additionally, he invited our attention to the extract of
STU Five year Transmission Plan for the year 2010-11 to 2014-15
which contains a list of various plants under the caption, 'Proposed
Year wise Generation Addition by IPPs'/ Biogas/Bagasse/Biomass
Plants, etc. for which PPA with various Distribution companies in
State', which contains name of M/s Gangakhed Sugar. Apart from
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these submissions, by pointing out that the respondents have earlier
employed one Dnyaneshwar Dhondiram Balwant, who had similar
experience in Gangakhed Sugar and Energy Ltd. and the same was
taken into consideration and on this basis petitioners are claiming
similar benefit.
10. In support of their contentions, the petitioners filed on
record written notes of arguments and have relied on following
judgments :-
(a) Dr. (Major) Meeta Sahai Vs. State of Bihar, [AIR OnLine
2019 SC 1766];
(b) Ankita Thakur Vs. H. P. Staff Selection Commission,
[AIR OnLine 2023 SC 925];
(c) Rakesh Kumar Vs. The State of Jharkhand and others,
[Civil Appeal No.9217/2018(Supreme Court) arising out of
Special Leave Petition (Civ.) No.2316/2018];
(d) Parvaiz Ahmad Parry Vs. State of Jammu and Kashmir
and others, [(2015) 17 SCC 709];
(e) Monnet Ispat & Energy Ltd. etc. Vs. Union of India and
others, [2017 SCC OnLine SC 2190]; and
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(f) Mayur Arun Tapase Vs. State of Maharashtra, Thr.
Additional Chief Secretary, Home Department (Transport and
Ports) and others, [2023 SCC OnLine Bom. 817].
11. By referring to various extracts from the aforesaid
judgments, the learned counsel for the petitioners submitted that, since
the advertisement did not contain any specification with respect to IPP
and since there was an ambiguity in the advertisement, the petitioners
should be given the advantage while deciding their eligibility.
12. Per contra, Advocate Rahul A. Tambe, learned counsel for
respondent Nos.2 and 3 made extensive submissions by placing
reliance on the clauses of the advertisement, which categorically
mention the condition of experience in power generation company. He
invited our attention to the specific stipulation in the advertisement
which reads as under :-
"The experience certificate issued by Private Contractors,
Proprietors, Captive Power Plants etc shall not be included as a
Power Generation experience'. The experience certificate in
respect of the company/organisation other than Central, State
Govt. Power Generation Utilities submitted by candidate shall
be self explanatory i.e. in the experience certificate area / nature
of work shall clearly be mentioned so as to enable to decide his /
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her eligibility and there shall not be any ambiguity for deciding
their eligibility"
13. By inviting our attention to the documents on record, he
would submit that the decision to declare the petitioners as ineligible
was taken by the expert committee which has scrutinized the
documents submitted by the petitioners as well as considered the status
of Gangakhed Sugar and Energy Ltd. vis a vis the requirements of the
respondents. He submitted that, since the decision is based upon and
backed by the opinion of the expert committee, interference of this
Court under Article 226 of the Constitution of India is not warranted.
14. He would further submit that the petitioners cannot claim
any advantage on the basis of employment to Dnyaneshwar
Dhondiram Balwant since he was selected through MSPGCL,
Advertisement No.06/2014 and the criteria of experience as mentioned
in that advertisement was entirely different. In support of their
contentions, respondent Nos.2 and 3 have also filed written notes of
arguments dated 19/09/2024. To highlight their contentions, the
respondents have relied upon following judgments :-
(a) Maharashtra Public Service Commission, thr. its Secretary
Vs. Sandeep Shriram Warade and others, [(2019) 6 SCC 362];
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(b) Tajvir Singh Sodhi and others Vs. State of Jammu and
Kashmir and others, [2023 SC OnLine 344]; and
(c) Ritu Bhatia Vs. Ministry of Civil Supplies Consumer
Affairs & Public Distribution and others, [2019 (3) SCC 422].
15. On the basis of these judgments relied upon by respondent
nos.2 and 3, Advocate Tambe vehemently submitted that the final
decision about eligibility based on experience has to be taken by the
employer and since the decision in these cases is based on the decision
of the expert committee, the petitioners' challenge cannot sustain.
16. Advocate Ms. Neha Kamble, learned A.G.P. for
respondent No.1 supported the arguments made on behalf of
respondent Nos.2 and 3.
17. The rival contentions of the parties now fall for our
consideration. The controversy revolves around the issue as to
whether the experience of working at Gangakhed Sugar and Energy
Ltd. can be considered as a requisite experience as per the
advertisement for the purpose of deciding eligibility for the post of
'Additional Executive Engineer' and 'Deputy Executive Engineer'.
The advertisement specifically mentions that, for the post of
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'Additional Executive Engineer', the requirement of experience is of
seven years in Power Generation Company of
Central/State/Independent Power Producer (IPP) under principal
employer and for the post of 'Deputy Executive Engineer', similar
requirement of experience is of three years.
18. The petitioners have relied upon the experience certificate
issued by Gangakhed Sugar and Energy Ltd. which document is not
disputed by respondents. However, crucial issue which falls for
consideration is as to whether Gangakhed Sugar and Energy Ltd. can
be categorized as IPP as per the requirement of the advertisement.
19. The terms 'Captive generation', 'Co-generation' and
'Independent Power Producer' (IPP), are defined in the 2016 Act,
which are reproduced below :-
"(a) 'Captive generation' means an energy generated from a
'Captive generating plant' defined in clause (8) of section 2 of
the Electricity Act, and the rules made thereunder by the Central
Government in this behalf;
(b) "Co-generation" means an energy generated in a process,
which simultaneously produces two or more forms of useful
energy including electricity;
.......
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(l) "Independent Power Producer (IPP) means a producer of
electrical energy which is not a public utility but which makes
electrical energy available for sale to utilities or end users;
20. It is pertinent to note that the advertisement does not state
that the term IPP would bear the meaning as defined in the statute.
Therefore, the issue as to whether M/s Gangakhed Sugar factory falls
strictly within the definition of the term contained in the 2016 Act is
irrelevant, since the requirement of IPP has to be determined qua the
perception of the employer.
21. Even if taking into consideration the above mentioned
definitions, the further issue which falls for our consideration is
regardless of categorisation of Gangakhed Sugar and Energy Ltd. as a
'Captive Power Generation Plant' or 'Independent Power Producer'
(IPP), whether the respondents had the final authority to decide the
requisite eligibility as per the advertisement. Another crucial issue is
about the scope of interference by this court under Article 226 of the
Constitution of India.
22. Before we delve into this controversy, it is necessary to
take note of the legal position as laid down by the judgment of
Maharashtra Public Service Commission, thr. its Secretary (supra),
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which deals with the issue about finality of the decision regarding
eligibility as per the advertisement. Relevant paragraph No.9 from the
judgment is reproduced below :-
"9. The essential qualifications for appointment to a post are
for the employer to decide. The employer may prescribe
additional or desirable qualifications, including any grant of
preference. It is the employer who is best suited to decide the
requirements a candidate must possess according to the needs of
the employer and the nature of work. The court cannot lay down
the conditions of eligibility, much less can it delve into the issue
with regard to desirable qualifications being on a par with the
essential eligibility by an Interpretive re-writing of the
advertisement. Questions of equivalence will also fall outside
the domain of judicial review. If the language of the
advertisement and the rules are clear, the court cannot sit in
judgment over the same. If there is an ambiguity in the
advertisement or it is contrary to any rules or law the matter
has to go back to the appointing authority after appropriate
orders, to proceed in accordance with law. In no case can the
court, in the garb of judicial review, sit in the chair of the
appointing authority to decide what is best for the employer and
Interpret the conditions of the advertisement contrary to the
plain language of the same."
23. As regards the scope of interference by the Courts in the
selection process for public employment, the following paragraphs of
the judgment in Tajvir Singh Sodhi and others (supra) need to be
noted :-
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65. Before proceeding further, it is necessary to preface our
judgment with the view that Courts in India generally avoid
interfering in the selection process of public employment,
recognising the Importance of maintaining the autonomy and
Integrity of the selection process. The Courts recognise that the
process of selection Involves a high degree of expertise and
discretion and that it is not appropriate for Courts to substitute
their judgment for that of a selection committee. It would be
indeed, treading on thin ice for us if we were to venture into
reviewing the decision of experts who form a part of a selection
board. ......................
66. Thus, the inexorable conclusion that can be drawn is that
it is not within the domain of the Courts, exercising the power of
judicial review, to enter into the merits of a selection process, a
task which is the prerogative of and is within the expert domain
of a Selection Committee, subject of course to a caveat that if
there are proven allegations of malfeasance or violations of
statutory rules, only in such cases of inherent arbitrariness, can
the Courts intervene."
24. As regards the controversy involved in the matter, it is
pertinent to note that the advertisement required possessing of
experience of IPP and it also specifically stated that the experience of
'Captive Power Plant' shall not be considered for the purpose of
eligibility. It is to be noted that Gangakhed Sugar and Energy Ltd. is a
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sugar factory with major business to produce sugar from sugarcane. It
is claimed by the petitioners that, since Gangakhed Sugar and Energy
Ltd. is engaged in two different projects, one pertains to production of
sugar and other is electricity generation which is 30 Mega-Watt (MW),
and therefore it has to be categorized as an 'Independent Power
Producer' of energy. The petitioners have also referred to the
agreement to demonstrate that Gangakhed Sugar and Energy Ltd.
provides 20.1 MW electricity in a season and in off-season it provides
26.8 MW and that the electricity generation is done for 240 days
which includes seasonal period of 180 days and off-season period of
60 days.
25. It has to be noted that, for the purpose of deciding the
status of Gangakhed Sugar and Energy Ltd. as an IPP, the details of
energy production as submitted by the petitioners cannot be made the
sole basis since the same is not recognised by the respondents.
Requirement of the employer has to be understood according to the
perception to meet the requisite experience. The existence of
experience from an entity which is simultaneously involved in power
generation, cannot be imposed upon the employer to mandatorily
categorise it as requisite experience. As such, irrespective of strict
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categorisation of M/s Gangakhed Sugar Ltd. as 'Captive Power
Generation Plant' or 'Independent Power Producer' (IPP), the final
decision for the purpose of deciding the requisite experience has to be
with the respondents.
26. It also has to be noted that the recruitment advertisement
does not specifically mention that the term IPP has to be understood in
the strict sense as per the statutory definition or guidelines. As such,
the issue as to whether Gangakhed Sugar and Energy Ltd. falls in the
definition of IPP as per the 2016 Act, would be redundant. It will have
to be decided by the perception of the expert committee of respondent
Nos.2 and 3. As regards the manner of production of electricity by
Gangakhed Sugar and Energy Ltd. by use of bagasse and resultant
power generation etc., will also have to be given due weightage
according to the decision of expert committee which decided the
eligibility qua the advertisement.
27. Reliance placed by the learned counsel for the petitioners
upon the judgment of the Supreme Court in Monnet Ispat & Energy
Ltd. etc. (supra) to fortify his submission about parameters to
categorise a power generation company as 'Captive Power Plant'
based on the annual generation and consumption of electricity, has to
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be read in the context of facts of that case. In the instant cases, even
by considering power consumption of Gangakhed Sugar and Energy
Ltd. being less than 51% of the aggregate electricity generated,
whether it has to be considered as 'Captive Power Generation Plant',or
an IPP, the decision of the expert committee of the respondents from
the perspective of requirement per their advertisement will be
determinative.
28. Reliance placed by the learned counsel for the petitioners
on the judgments in the matters of Ankita Thakur Vs. H. P. Staff
Selection Commission (supra); Rakesh Kumar Vs. The State of
Jharkhand and others (supra) and Parvaiz Ahmad Parry Vs. State
of Jammu and Kashmir (supra), to highlight his contention that, in
case of ambiguity in the advertisement, the benefit must fall in favour
of the candidate, cannot be of any assistance to the petitioners since no
ambiguity in the advertisement is pointed out. The advertisement
requires experience of IPP although no specifications of IPP are
mentioned. Therefore, the decision of expert committee becomes more
crucial. It is pertinent to note, no judgment is cited by either parties,
holding specifically that Gangakhed Sugar and Energy ltd. is an IPP
for all purposes. In view of the overall circumstances, the contention
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of the petitioners that 'IPP' as stated in the advertisement has to be
understood to include Gangakhed Sugar and Energy Ltd., cannot thus
be accepted to nullify the decision of the expert committee of the
respondents.
29. A quick reference to the judgment in the matter of Ritu
Bhatia (supra) is necessary. While deciding the issue as to whether
the appellants fulfilled the eligibility for the post of Company
Secretary, in view of the advertisement which provided that the
candidate must possess experience of five years as Company
Secretary, the Supreme Court has held that the respondent was the
author of the advertisement and was the best person to consider what
was meant by use of the word 'as' in the advertisement.
30. The position of law is fairly clarified by the apex court in
the matter of Maharashtra Public Service Commission (supra) that,
it is for the employer to decide the essential qualifications for a
particular post and that the employer may prescribe any additional or
desirable qualification including grant of preference. It is the
employer who is best suited to decide the requirements a candidate
must possess according to the needs of the employer and the nature of
work. The Courts cannot delve into the issue with regard to desirable
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qualifications being on par with the essential eligibility, by interpretive
re-writing of the terms of advertisement and that the questions of
equivalence will fall outside the domain of judicial review. The
position of law when applied to the instant case, it will have to be held
that the Courts cannot sit over the decision of the expert committee of
the employers which is conscious of the exigencies of the employer.
The decision as to whether the experience of a particular entity is
requisite experience for a particular post falls within the domain of the
employer and any interference in that arena is uncalled for.
31. In the light of the factual and legal position as considered
herein above, we are of the considered view that indulgence under
Article 226 of the Constitution of India is not necessary. Hence, these
petitions are liable to be dismissed.
32. The Writ petitions are dismissed with no order as to costs.
Pending civil applications also stand disposed of.
33. Rule is discharged.
(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)
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34. After pronouncement of the judgment, the learned
advocate for the petitioners submits that ad interim relief has been in
operation till date and requests for its extension to enable the
petitioners to approach the Supreme Court.
35. Learned advocates for the contesting respondents strongly
oppose the request on the ground that the ad interim relief was granted
ex parte, which fact the learned advocate for the petitioners denies.
36. In stead of extending the ad interim relief, we declare that
any appointment made hereafter within four weeks in respect of the
seats, which were directed to be kept vacant, shall be subject to the
final outcome of the matter to be preferred before the Supreme Court.
(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)
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