Bombay High Court
Swapnil Kisan Patil vs The Municipal Corporation Of Greater ... on 13 March, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:12954-DB
J-WP-12074-23&connected.doc
manali/arati/rajshree/ashish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12074 OF 2023
Swapnil Kisan Patil ... Petitioner
Versus
The Municipal Corporation of
Greater Mumbai & Ors. ... Respondents.
WITH
INTERIM APPLICATION NO. 6897 OF 2024
IN
WRIT PETITION NO. 12074 OF 2023
The Municipal Corporation of
Greater Mumbai ... Applicant
Versus
Swapnil Kisan Patil & Ors. ... Respondents.
Mr.K.S. Bapat, Senior Advocate i/b Wasim Samlewale and
Ms.Priyanka Babar for Petitioner.
Mr. Pralhad Paranjape a/w Smt. Shilpa Redkar, Santosh Parad,
Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat, i/by
Komal Panjabi Adv for the Respondent /BMC.
Adv. B. V. Samant Addl. GP for the Respondent/ State.
Adv. Ashutosh Kulkarni a/w Adv. Siddharth Shitole for the
Respondent/MPSC .
Mr. Tejas Deshmukh a/w. Mr. Suhas Deokar, Adv for Respondent
No 4.
Mr. Pramod N. Patil a/w. Mr. Amit A. Karande, Mr. Ashish
Gaikwad, Mr. Anirudh Rote, Adv for Respondent No 5.
Adv. Gaurav Bandiwadekar for the Respondent No. 6.
Digitally signed
RAJSHREE by RAJSHREE
KISHOR MORE
KISHOR Date:
MORE 2025.03.20
14:02:20 +0530
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WITH
WRIT PETITION NO. 963 OF 2024
Anup Limbraj Dure. ... Petitioner
Versus
The State of Maharashtra & Ors. ... Respondents.
Mr. S. C.Naidu a/w. Mr. Vishal P.Shirke, Adv for Petitioner.
Mr. Pramod N. Patil a/w. Mr. Ashish Gaikwad, Mr. Anirudh Rote,
Ms. Prerana Agavekar, Ms. Anjali Kolapkar, Ms. Savita Gaikwad,
Ms. Bhavana Khichi, Ms. Sufiya B. Siddiqui for Respondent No 5.
Adv. M. M. Pable, AGP for the Respondent/ State.
Adv. Ashutosh Kulkarni a/w Adv. Siddharth Shitole for the
Respondent MPSC.
Mr. Pralhad Paranjape a/w Smt. Shilpa Redkar, Santosh Parad,
Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat, i/by
Komal Panjabi Adv for the Respondent /BMC.
Mr. Tejas Deshmukh a/w. Mr. Suhas Deokar, for Respondent No 4.
Adv. Gaurav Bandiwadekar for the Respondent No. 6.
Mr. Nikhil Wable a/w Parita Mashruwala i/by Jayakar and
Partners for Respondent No. 9.
WITH
WRIT PETITION NO. 3893 OF 2024
Rohit Shriram Phad. ... Petitioner
Versus
The Municipal Corporation of
Greater Mumbai & Ors. ... Respondents.
Mr. Abhijeet Desai a/w. Ms. Mohini Rehpade, Vijay Singh, Digvijay
Kachare, Karan Gajra, Sanchita Sontakke, Daksha Punghera,
Pratishtha Mandal i/b. Desai Legal LLP for Petitioner.
Mr. A. V. Bukhari, Sr. Counsel a/w Smt. Shilpa Redkar, Santosh
Parad, Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat,
Burhan Bukhari i/by Komal Punjabi, Adv for the Respondent
/BMC.
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Adv. V. M. Mali, AGP for the Respondent / State.
Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent MPSC.
WITH
WRIT PETITION NO. 6534 OF 2024
Priyanka Pralhad Tonge. ... Petitioner
Versus
The State of Maharashtra & Ors. ... Respondents.
Mr.Nikhil Wable a/w Ms.Praita Mashruwala i/b Jayakar &
Partners for Petitioner.
Mr. Pramod N. Patil a/w. Mr. Ashish Gaikwad, Mr. Anirudh Rote,
Ms. Prerana Agavekar, Ms. Anjali Kolapkar, Ms. Savita Gaikwad,
Ms. Bhavana Khichi, Ms. Sufiya B. Siddiqui for Respondent No.5.
Mr. A. V. Bukhari, Sr. Counsel a/w Smt. Shilpa Redkar, Santosh
Parad, Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat,
Burhan Bukhari i/by Komal Punjabi, Adv for the Respondent /
BMC.
Mr. Ashish Gaikwad with Mr. Anirudh Rote, Prerana Agavekar,
Anjali Kolapkar, Savita Gaikwad, for Respondent No. 5..
Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent MPSC.
WITH
WRIT PETITION NO. 12317 OF 2023
WITH
INTERIM APPLICATION ST. NO. 13074 OF 2024
Supriya Tapase. ... Petitioner
Versus
The Municipal Corporation of
Greater Mumbai & Ors. ... Respondents.
WITH
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INTERIM APPLICATION NO. 6895 OF 2024
IN
WRIT PETITION NO. 12317 OF 2023
The Municipal Corporation of
Greater Mumbai ... Applicant
Versus
Supriya Tapase. & Ors. ... Respondents.
Mr. Mihir Desai, Sr. Adv. a/w Ms. Devyani Kulkarni for Petitioner.
Mr. Pralhad Paranjape a/w Smt. Shilpa Redkar, Santosh Parad,
Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat, i/by
Komal Panjabi Adv for the Respondent / BMC.
Mr. Anil V. Anturkar Sr.Adv. a/w. Mr. Vaibhav P. Bajpai, Dhawal
Giri, Ms. Krati Sharma, i/b. Bajpai & Associates for Respondent
No. 3.
Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent MPSC.
WITH
WRIT PETITION NO. 12318 OF 2023
WITH
INTERIM APPLICATION NO. 8608 OF 2024
Ankush Jadhav. ... Petitioner
Versus
The State of Maharashtra & Ors. ... Respondents.
WITH
INTERIM APPLICATION NO. 6900 OF 2024
IN
WRIT PETITION NO. 12318 OF 2023
The Municipal Corporation of
Greater Mumbai ... Applicant
Versus
Ankush Jadhav. & Ors. ... Respondents.
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Mr. Mihir Desai, Sr. Adv. a/w Ms. Devyani Kulkarni for Petitioner.
Mr. A. V. Bukhari, Sr. Counsel a/w Smt. Shilpa Redkar, Santosh
Parad, Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat,
Burhan Bukhari i/by Komal Punjabi, Adv for the Respondent
/BMC.
Mr. Anil V. Anturkar Sr.Adv. a/w. Mr. Vaibhav Bajpai, Dhawal Giri,
Ms. Krati Sharma, i/b. Bajpai & Associates for Respondent No. 3.
Adv. Induparakash Tripathi a/w Adv. Bhagyashri Gawas and
Madhavan i/by C. K. Tripathi for the Respondent No. 4.
Mr. Abhijeet Desai a/w. Ms. Mohini Rehpade, Vijay Singh, Digvijay
Kachare, Karan Gajra, Sanchita Sontakke, Daksha Punghera,
Pratishtha Mandal i/b. Desai Legal LLP for Respondent No. 5..
Mr. Abhijeet Desai a/w. Mr. Mohini Rehpade, Vijay Singh, Digvijay
Kachare, Karan Gajra, Sanchita Sontakke, Daksha Punghera,
Pratishtha Mandal i/b. Desai Legal LLP for Respondent No 5.
Adv. P. M. Joshi-Deshpande, AGP for the Respondent/ State.
Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent MPSC.
WITH
WRIT PETITION NO. 15780 OF 2023
Rohini Vilas Dhumal. ... Petitioner
Versus
The Commissioner, Municipal
Corporation of Greater Mumbai & Ors. ... Respondents.
WITH
INTERIM APPLICATION NO. 6894 OF 2024
IN
WRIT PETITION NO. 15780 OF 2023
The Commissioner, Municipal
Corporation of Greater Mumbai ... Applicant
Versus
Rohini Vilas Dhumal & Ors. ... Respondents.
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Mr. Pralhad Paranjape a/w Smt. Shilpa Redkar, Santosh Parad,
Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat, i/by
Komal Panjabi Adv for the Respondent /BMC.
Ms. Vaishali Jagdale,Adv for the Petitioner.
Mr. Anil V. Anturkar Sr.Adv. a/w. Mr. Vaibhav P. Bajpai, Ms.Krati
Sharma, i/b. Bajpai & Associates for Respondent No. 3 & 4..
Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent MPSC..
WITH
WRIT PETITION NO. 16761 OF 2023
Anirudha s/o GopalKrishna Kulkarni. ... Petitioner
Versus
The State of Maharashtra & Ors. ... Respondents.
WITH
INTERIM APPLICATION NO. 6902 OF 2024
IN
WRIT PETITION NO. 16761 OF 2023
The Municipal Corporation of
Greater Mumbai ... Applicant
Versus
Anirudha s/o GopalKrishna Kulkarni & Ors. ... Respondents.
WITH
INTERIM APPLICATION (ST) NO. 36092 OF 2024
IN
WRIT PETITION NO. 16761 OF 2023
Anirudha s/o GopalKrishna Kulkarni & Ors. ... Applicant
vs.
The Municipal Corporation of
Greater Mumbai ... Respondent
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Mr. Abhijeet Desai a/w. Ms. Mohini Rehpade, Vijay Singh, Digvijay
Kachare, Karan Gajra, Sanchita Sontakke, Daksha Punghera,
Pratishtha Mandal i/b. Desai Legal LLP for Petitioner..
Mr. Pralhad Paranjape a/w Smt. Shilpa Redkar, Santosh Parad,
Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat, i/by
Komal Panjabi Adv for the Respondent / BMC.
Mr. Tejas Deshmukh a/w. Mr. Suhas Deokar, Adv for Respondent
No 4.
Mr. Pramod N. Patil a/w. Mr. Amit A. Karande, Mr. Ashish
Gaikwad, Mr. Anirudh Rote, Adv for Respondent No 5..
Adv. Gaurav Bandiwadekar for the Respondent No. 6..
Mr. K. S. Bapat, Sr. Adv. i/by Wasim Samlewale a/w Ms. Priyanka
Babar for Respondent No. 7.
Mr. S. C.Naidu a/w. Mr. Vishal P.Shirke, Adv for Respondent No 8.
Mr. Nikhil Wable a/w Parita Mashruwala i/by Jayakar and
Partners for Respondent No. 10.
Adv. Ashutosh Kulkarni a/w Adv. Siddharth Shitole for the
Respondent MPSC.
WITH
WRIT PETITION NO. 16764 OF 2023
Bhagwat Narayanrao Panzade. ... Petitioner
Versus
The Maharashtra Public Service
Commission. ... Respondents.
Mr. Abhijeet Desai a/w. Ms. Mohini Rehpade, Vijay Singh, Digvijay
Kachare, Karan Gajra, Sanchita Sontakke, Daksha Punghera,
Pratishtha Mandal i/b. Desai Legal LLP for Petitioner..
Mr. Pralhad Paranjape a/w Smt. Shilpa Redkar, Santosh Parad,
Shivprasad Borade, Anand Khairnar, Rushikesh Bhagwat, i/by
Komal Panjabi Adv for the Respondent /BMC.
Mr. Arshad Shaikh, Sr. Adv. a/w. V. S. Kapse, Freddy Bhadha, Adv
for Respondent No. 3.
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Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent MPSC.
WITH
WRIT PETITION NO. 14072 OF 2024
Vaishali Kashinath Thorat ... Petitioner
Versus
State of Maharashtra & Ors. ... Respondents.
Mr. Pramod N. Patil a/w. Mr. Ashish Gaikwad, Mr. Anirudh Rote,
Ms. Prerana Agavekar, Ms. Anjali Kolapkar, Ms. Savita Gaikwad,
Ms. Bhavana Khichi, Ms. Sufiya B. Siddiqui for Petitioner.
Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent / MPSC.
WITH
WRIT PETITION NO. 839 OF 2025
Aniruddha Kulkarni ... Petitioner
Versus
M.C.G.M. & Ors. ... Respondents.
Mr. Abhijeet Desai a/w. Mr. Mohini Rehpade, Vijay Singh, Digvijay
Kachare, Karan Gajra, Sanchita Sontakke, Daksha Punghera,
Pratishtha Mandal i/b. Desai Legal LLP for Petitioner.
Mr. Tejas Deshmukh a/w. Mr. Suhas Deokar, Adv for Respondent
No No. 3.
Smt. Shilpa Redkar, Santosh Parad, Shivprasad Borade, Anand
Khairnar, Rushikesh Bhagwat, Adv for the Respondent/ BMC in
WP 839/2025.
Adv. Ashutosh Kulkarni A/W Adv. Siddharth Shitole for the
Respondent/ MPSC.
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1488 OF 2024
Yogesh Annasaheb Kendre. ... Petitioner
Versus
Brihan Mumbai Municipal Corporation & Ors. ... Respondents.
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Mr.N.V. Bandiwadekar, Senior Counsel i/b Sarthak Diwan and
Snehal Jadhav for the Petitioner.
Mr.Himanshu Takke, AGP for State-Respondent No.1..
Mr.Ashutosh Kulkarni a/w Siddharth Shitole, for Respondent-
MPSC.
Ms.Shilpa Redkar a/w R.Y. Sirsikar i/b Shivprasad Borade for
Respondent/BMC.
CORAM : BHARATI DANGRE &
ASHWIN D. BHOBE, JJ
RESERVED ON : 21st JANUARY, 2025.
PRONOUNCED ON: 13th MARCH, 2025
JUDGMENT (PER BHARATI DANGRE, J) :
-
1. The Maharashtra Public Service Commission on
24/06/2021 issued an Advertisement inviting Applications for
filing up 16 posts of Assistant Commissioner (Group A) on the
establishment of the Municipal Corporation of Greater Bombay
("MCGM"). The Advertisement 004/2021 for the 16 posts
included 11 posts for general category, out of which 7 posts were
reserved for backward classes including SC/ST/NTD, OBC and
EWC, whereas one post was reserved for women.
The said Advertisement set out the eligibility criteria
including citizenship, minimum and maximum age limit,
education qualification etc.
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For being eligible, the following educational qualifications
were prescribed :-
3.3.1 : Candidate must possess a degree in Arts,
Science, Law, Commerce, Medicine or Engineering of
recognized University or an equivalent qualification.
3.3.2 : Sufficient knowledge of Marathi language.
The experience required for the said post was stipulated
in clause 3.4 as below
3.4 : Experience
3.4.1 : Have administrative, executive or
supervisory experience in a responsible capacity for not less
than five years in Government, Semi-Government or any big
industrial or commercial concern.
3.4.2 : The experience of ex-armed force officers will
be considered as supervisory experience for the duration
they served in armed forces as commissioned officers.
3.4.3 : Candidate should mention all details and
submit evidence regarding administrative experience,
supervisory experience or executive experience on
responsible post.
Clause 3.4.4 defined the term 'responsible capacity' as
below :-
(1) Responsible post means, a post in Government
Institute or Government Sector or Semi Government, in pay band
M-23 Rs.41800-132300 or the higher pay band and a Gazetted
Officer in grade pay.
In addition, if it is permissible to have equivalence in the
aforesaid pay band and grade pay of any post in other field shall
also deserve consideration.
2. The experience of Senior Managerial post in a private
institution would also be entitled to be counted as a 'responsible
post' and shall be considered eligible.
3. 'Big Industrial Institute' means such Private/Government
Institute where more than thousand people are working.
2. The Eleven Petitions before us pertains to the aforesaid
Advertisement and specifically involve Clause 3.4 and 3.4.4. and
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involve 8 vacant posts for which the MPSC has to recommend the
candidates, as on 7 posts advertised, the candidates on being
selected have already joined.
On the basis of challenge raised, to the recommendation of
the persons impleaded as Respondents to the post, the challenge
can be primarily divided into four categories ;
I) Whether the post of 'Sub Engineer' is a responsible post
as per clause 3.4.4 and whether it involves discharge of
administrative, supervisory or administrative functions.
II) Whether training/probationary period should be included
or excluded from the desired experience for the post;
III) Whether the Respondents who are recommended
by the MPSC are entitled to claim category of EWS
IV] Whether the Respondents possess five year
experience, since there was delay in their joining.
3. Since the Advertisement prescribed the procedure for
recruitment which involve conduct of interview of those
candidates who were found to be eligible on conduct of written
examination of 200 marks and upon securing 40% of the marks,
a person was held eligible for interview and minimum marks to be
acquired for interview was prescribed as 41%.
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The written examination was held on 31/10/2021 and list of
90 eligible candidates was published on 23/03/2022. The
candidates were, thereafter, required to submit the documents
online and out of the list of 90, 26 candidates were held to be
ineligible and the revised merit list was published on
11/08/2023. The candidates were thereafter called for interview
and on 08/09/2023 a provisional merit list was published .
4. The grievance of the Petitioners who claim themselves to be
qualified for being appointed on the post of Assistant
Commissioner (Ward Officer) in each of the Petition is about the
ineligibility of the candidates who have been recommended by
MPSC and in each Petition there are different set of Respondents
with different grounds for challenge being raised to their
recommendation.
MCGM and MPSC are the common Respondents in all the
Petitions.
5. We have heard the respective counsel for the contesting
parties which include the counsel for the petitioners who raise
challenge to the selection of the respondents to the post of
Assistant Commissioner. We have also heard respective counsel
for the MCGM and the MPSC.
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At the outset, we would like to consider the common stand
adopted by MCGM which is led by learned senior counsel
Mr.Bukhari, who raised an objection to the maintainability of the
Writ Petitions, based on a presumption that the private
respondents, who are either appointed or recommended by MPSC
for the post of Assistant Commissioner do not satisfy the eligibility
criteria. It is urged that in all the cases filed by the petitioners,
they have secured less marks as compared to the private
respondents in the selection process, as per the provisional
general merit list submitted by MPSC.
The second serious objection raised is about the settled
position of law laid down by the Apex Court that once the
candidate participate in the selection process and do not find
himself to be selected by the expert body, it is not open for the
candidates to turn back and challenge the process of selection.
Reliance is placed upon the decision in case of Madan Lal &
ors Vs. State of Jammu and Kashmir,1 which has pronounced
upon the locus standi to impugn the selection on the the ground of
unfairness of the interview process or defect in constitution of
select Committee by an unsuccessful candidate, who had taken a
1 (1995) 3 SCC 486
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chance to get themselves selected in the process.
Reliance is also placed upon the decision in case of Vijendra
Kumar Verma Vs. Public Service Commission, and the
observations in paragraph no.24 in specific:-
"24 When the list of successful candidates in the written
examination was published in such notification itself, it was
also made clear that the knowledge of the candidates with
regard to basic knowledge of computer operation would be
tested at the time of interview for which knowledge of
Microsoft Operation System and Microsoft Office operation
would be essential. In the call letter which was sent to the
appellant at the time of calling him for interview, the
aforesaid criteria was reiterated and spelt out. Therefore, no
minimum benchmark or a new procedure was ever
introduced during the midstream of the selection process. All
the candidates knew the requirements of the selection
process and were also fully aware that they must possess the
basic knowledge of computer operation meaning thereby
Microsoft Operation System and Microsoft Office operation.
Knowing the said criteria, the appellant also appeared in the
interview, faced the questions from the expert of computer
application and has taken a chance and opportunity therein
without any protest at any stage and now cannot turn back to
state that the aforesaid procedure adopted was wrong and
without jurisdiction."
In addition, for the very said proposition, the observations of
the Apex Court in Ramesh Chandra Shah and Ors Vs. Vaishali
Joshi and ors,2 holding that having participated in the process of
selection with full knowledge that recruitment was being made as
per prevailing Rules, respondent no.1 had waived their right to
question advertisement or methodology adopted in making the
selection.
2 (2013) 11 SCC 309
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It is also urged by Mr.Bhukari that unless and until glaring
or patent illegality is noticed in the selection process, the Court
exercising writ jurisdiction shall refrain itself from showing any
indulgence and in the wake of the settled principle that when a
candidate appears at an examination without objection and is
subsequently found to be not successful, a challenge to the
process is precluded and the question of entertaining a petition
challenging an examination would not arise where a candidate
has appeared and participated as h/she cannot subsequently turn
around and contend that the process was unfair or that there was
some lacunae therein, merely because the result is not palpitary.
Apart from the above stand, MCGM has also contested every
petition on merits by filing their affidavits.
6. As far as MPSC is concerned, Mr.Kulkarni representing the
body has filed distinct affidavits in each petition, by stating that
MPSC is the authority to recommend the candidate for being
appointed to the post specified in the requisition received by it
from the concerned Department of the State Government. It is
stated that MPSC conducts examination and interview for
selecting candidates and therefore, it has a well defined limited
role in the process of appointment. A categorical statement is also
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made in the affidavit that as far as the eligibility criteria for
recommendations to be made by MPSC is concerned, it strictly
follows the recruitment rules (RR) applicable to the concerned
post framed by the Department of the State Government.
While highlighting the process adopted by the MPSC, the
Under Secretary of MPSC has deposed that the entire selection
process has been conducted by MPSC strictly in compliance with
the recruitment rules and for scrutinizing and verifying the
correctness of the respective claims qua educational qualification
and experience by the candidates, MPSC had appointed panel of
two experts and every application was scrutinized and verified
by them which was also in accordance with the recruitment rules.
7. For the sake of convenience, we have divided the Petitions in
four categories, as indicated above, while we heard the learned
counsel for the Petitioners as well as the Respondents.
(A) CATEGORY I
Whether post of 'Sub Engineer' in BMC is a responsible post and
whether the incumbent working on this post has work experience
as per clause 3.4.1 of the advertisement.
Three Writ Petitions in the Group raise challenge to the
recommendation of the Respondents on the ground that they do
not hold the responsible post either because they are not holding a
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Gazetted Post or because the functions discharged by them is not
supervisory/administrative/executive.
i) ARGUMENTS ADVANCED in WP No.12317/2023
(Supriya Tapase vs. MCGM & Ors.), WP no.12318/2023 (Ankush
Jadhav vs. MCGM & Ors.) and WP No.15780/2023 (Rohini
Dhumal vs. MCGM & Ors.)
8. We have heard the senior Advocate Mr.Mihir Desai, in first
two petitions, whereas in the third petition filed by Smt.Rohini
Dhumal we have heard Adv. Vaishali Jagdale. MCGM, i.e.
Respondent No.1 is represented by Adv. Pralhad Paranjape, and
Senior Counsel Mr. Bukhari.
Respondent No.3 IN WP No.12317/2023 in first Petition as
well as Respondent No.3 in WP 12318 are represented by the
Senior Advocate Mr. Anturkar.
We have also heard Mr. C.K. Tripathi representing
Respondent No.4 in WP NO.12318/2023 and Mr.Abhijeet Desai
representing Respondent No.5 in WP 15780/2023.
9. Mr.Mihir Desai representing the Petitioners would urge
before us that the First Petition is concerned with the reservation
of 30% female (General) and the Petitioner Supriya Tapase is
working on the post of Director Business Excellence at Defence
Security Solutions Pvt. Ltd. and she has raised challenge to the
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appointment of Rupali Shinde, working as Sub Engineer in Class
II.
10. By placing reliance upon the Manual of Brihanmumbai
Mahanagarpalika for the Post of Assistant Engineer, Water Work
Department, Mr.Desai would submit that the Sub Engineer do not
possess any administrative or financial power and the duties of
the Sub Engineer as per the Manual are highlighted below :
1. To carry out fieldwork such as repairs, maintenance of water main
upto 300 mm dia.
2. Overall control on maintenance labour staff, to carry out the above
repair work.
3. To carry out work of making new connections upto 50 mm dia.
4. Execution of disconnection orders for nonpayment of water charges
and Sewerage charges bills, wastages etc.
5. To maintain various records of new water connections, meters,
preparation of O.T. of maintenance staff.
It is, therefore, his contention that the duties of the Sub
Engineer by no stretch of imagination can be described as
supervisory/ executive/administrative and moreover, a Sub
Engineer is not conferred with any financial powers.
11. Relying upon the common Affidavit of MPSC it is the
submission of Mr. Desai that MPSC received various complaints
from many candidates having experience on the post of Sub
Engineer and Assistant Engineer and therefore, a letter was
addressed to the Commissioner of MCGM on 13/09/2023 seeking
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clarification as to whether this experience should be considered
and MCGM had forwarded a reply on 03/01/2023 stating that as
per 7th Pay Commission, the candidates working on the post of
Assistant Engineer were in the pay scale of RS.56,100/- to
177500/- and the candidates working in the post of Sub Engineer
were in the pay scale of Rs.44900 to 141400/- and they had
administrative, executive or supervisory experience and
therefore, they were eligible as per clause 3.4 of the
Advertisement.
The MPSC has thus responded by stating that finding them
to be eligible, they were considered for appointment to the said
post. But according to him, MCGM has referred the matter to the
expert committees which were constituted at various levels for
verification of the candidature of the candidates and the scrutiny
committee-1 has held that Respondent No.3 is not eligible , but
Committee (C) found Respondent No.3 to be eligible and out of
four committees two committees i.e. Panel of Experts and
Committee (C) had declared her to be eligible.
Mr.Desai would submit that the Court should call for the
reports from these panel of Experts in a sealed envelope.
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Relying upon the Manual of the MCGM it is the submission
of Mr.Desai that the post of Sub Engineer do not prescribe any
supervisory duties and merely because they are in a particular
pay scale, which make them eligible as per clause 3.4.4. itself is
not sufficient to qualify Respondent No.3 Rupali Shinde for being
recommended for the said Post.
According to Mr. Desai, the Petitioner secured 136 marks as
per the Merit List, whereas, Respondent No.3 has secured 137
marks and since there is only one post for SC woman, if
Respondent no.3 is recommended and appointed, the Petitioner
looses her chance for an appointment.
12. Representing Respondent No.3 Rupali Shinde, the learned
senior counsel Mr. Anturkar has submitted before us that there
are many posts of Sub Engineer in the Corporation and reliance is
placed upon the duty list of Sub Engineers (Maintenance) (Water
works) is not applicable to the Petitioner, as according him, Rupali
Shinde is working as Sub Engineer (School Infrastructure Cell)
and the duty list of the Sub Engineer is placed by him before us,
which includes discharge of various functions which are in the
nature of supervisory duties/executive duties in addition to the
administrative functions.
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13. Mr.Anturkar has also placed before us the Experience
Certificate issued in favour of his client by the Deputy Engineer
(SIC), who happens to be her immediate superiors who has
certified that Rupali Ashok Shinde is working in the Organization
holding the post of Sub Engineer, in the executive cadre in the pay
scale of Rs.44,900 - Rs.1,42,400.
The experience gained by her is given in the certificate to be
executive in nature and it is certified that she was holding the
post of Sub Engineer from 04/05/2012 to 24/03/2022
Contesting the eligibility of the Petitioner Supriya, it is
urged by Mr. Anturkar that she is not qualified for being
recommended for the post of Ward Officer as she has produced
the certificate of experience of a Company Trimax IT
Infrastructure & Services Ltd., which is in fact wound up, being
placed under the IBC and, therefore,, the said certificate is a
fraudulent one.
Mr.Anturkar would submit that the Petitioner in the
Rejoinder filed has specifically admitted this lapse and made a
statement that the Petitioner can produce the said certificate
from the said Company , if required, at the documents scrutiny
stage.
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Alongwith the compilation of documents, the certificate
from the Ministry of Corporate Affairs is placed before us which is
dated 17/01/2022 which has certified that the name of the
Company Trimax IT Infrastructure & Services Ltd., is already
changed to EBIXCASH Mobility Software India Limited w.e.f. the
date of issuance of the certificate. It is, therefore, submitted that
the Petitioner has submitted a Certificate of an ineligible
Company, which was not authorized to issue the certificate.
14. Another Petition in the very same group where a cloud is
raised about the nature of duties of Sub Engineer is the Petition
filed by Ankush Jadhav, who had raised objection to the
recommendation of Respondent Nos.3, 4 and 5.
As far as Respondent No.3 is concerned, he is working as
Sub Engineer in the Corporation and is represented by
Mr.Anturkar. Respondent No.4 working as Programme Executive
in Prasar Bharati is represented by Adv. C.K. Tripathi, whereas,
Respondent No.5 Bhagwatrao Panzade working as
Assistant/Executive Engineer in Maharashtra Transmission
Company is represented by Abhijeet Desai.
Raising an objection about the eligibility of Respondent
No.3, Mr. Anturkar would adopt the same arguments advanced in
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the earlier case. However, while referring to the experience
certificate, he would submit that it is nowhere the requirement
that the Experience Certificate should be given by the Appointing
Authority and when we asked Mr.Desai whether this is the
specific requirement in the Advertisement, he do not answer in
the affirmative.
15. As far as Respondent No.4 is concerned, the objection raised
is, that he was working on non gazetted post which did not
involve any administrative or supervisory experience.
Mr.Tripathi has relied upon the Affidavit in Reply and has
submitted that the Petitioner has scored less marks than the
Respondent and, therefore, on merits he is found to be better
suited than the Petitioner. Reflecting upon Clause 3.4.4, it is the
specific stand adopted in the Affidavit that he has experience of
working as Programme Executive in All India Radio since
27/04/2015 and the copy of the duty performed by him in
the said capacity clearly reflect that he has requisite experience.
Fitting himself in Clause 3.4.4 by relying upon Exhibit D
which is Experience Certificate issued by the Senior
Administrative Officer of A.I.R., it is urged that he is in the pay
band 2 Level 7 (44900-142400) with grade pay of Rs.4600/-
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which correspond with the Maharashtra Government pay level of
M-25 at the time of filing of Application. Reliance is placed upon
the Certificate of Experience where he is certified to be working
on a non technical post in executive capacity and the nature of
post is described as 'Supervisory', with the basic pay of
Rs.53,600/-.
On behalf of Respondent No.5 represented by Advocate
Abhijeet Desai, working in Maharashtra Transmission Company,
our attention is invited to the Certificate of Experience issued by
Executive Engineer, 400 KV Receiving Station Division MSCTCL
on 20/03/2022 certifying that Shri Bhagwatrao Panzade was
working as Assistant Engineer (Trans) in supervisory capacity in
the pay scale of Rs.61830-2515-74405-2730-139925.
The objection raised is the pay band set out in the
Experience Certificate is the pay scale of Junior Engineer as per
the Administrative circular issued by the Chief Manager of
MSCTCL.
However, the contention is that Respondent No.5 working as
Assistant Engineer has experience of executive,administrative
as well as supervisory capacity working in Maha Transco. And in
any case it is the submission of the learned counsel that it is for
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the Appointing Authority to judge the eligibility and suitability of
the candidate.
16. In the first two Writ Petitions, Corporation is represented by
Mr.Bukhari, has relied upon the Affidavit filed by the Chief
Personal Officer in General Administration Department of BMC
where it is categorically stated that there are 24 administrative
wards in the limit of Municipal Corporation and each ward is
headed by Assistant Municipal Commissioner /Ward Officer, who
is administrative head of the Ward and play an important role on
day to day basis in the administration of Corporation and is
responsible for developing and maintaining civic infrastructure of
the city like water supply, road, drainage, taking action against
unauthorized constructions etc.
As per Section 80-B of the MMC Act, the appointment on
the said post is to be made after consultation with the MPSC and
since 16 posts of Assistant Commissioner were vacant, a
requisition was received from MCGM and an Advertisement was
published.
A very categorical statement is made in the Affidavit on
behalf of Municipal Corporation to the following effect :-
"a. The Respondent No. 1 is BMC, whereas respondent
No.2 is the MPSC. The BMC from time to time passed several
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resolution ranging from the Corporation Resolution no 183
dated 12th May 1964, Corporation Resolution no. 1475 dated
1st march 1965, Corporation Resolution no 368 dated 24th
June 1965 which prescribes the qualification/eligibility
criteria for appointment as assistant commissioner of BMC.
The said resolution is in force till date. These respondents
crave leave to refer to and rely upon the said resolutions with
the leave of the court. The Corporation Resolution No 47 dated
25th April 1997, Corporation Resolution No 398 dated 10th
August 2000, Corporation Resolution No 1079 dated 8th
January 2010, Corporation Resolution No 716 dated 28th
August 2012 & Corporation Resolution No 1272 dated 14th
December 2018 clearly show that from time to time several
officers serving on the post of sub engineers have been
considered to be eligible and have been selected and promoted
to assistant municipal commissioners by following the
required method under law from time to time."
The Corporation has offered a clarification that there are 50
departments working under its aegis where engineers are posted
and in all such Departments different duties are assigned and
the duty list annexed to the Petition is merely illustrative in
nature and not exhaustive, as Sub Engineers have to perform
various duties assigned to them from time to time by the
Respondent-Corporation and the duties vary from department to
department, may be in the nature of administrative, executive or
supervisory duties.
17. In the said group, one more Petition is filed by Rohini
Dhumal who is represented by Advocate Mr.Vaishali Jagdale and
she has raised objection to the recommendation of Respondent
No.3 Arti Golekar, working as Sub Engineer in the Corporation
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and Respondent No.4 Vrushali Ingule, working as Deputy
Manager in Maha Distribution Company. As far as the Sub
Engineer is concerned, she would adopt the arguments of Mr.
Desai in WP No.12317/2023.
She has produced before us a chart reflecting that
candidature of some of the candidates has been rejected, because
they are non gazetted, but it is her specific objection that Sub
Engineer, is a non gazetted post, and the persons working on the
said post are still selected and appointed.
She has contended before us that there are no recruitment
rules for the post of Ward Officer and in this regard she has placed
reliance upon the decision of learned Single Judge of this Court, in
Municipal Mazdoor Union vs. Municipal Commissioner & Ors.
1996 SCC OnLine Bombay 699, wherein, the Court pronounced
upon the position Ward Officer and observed thus :-
"The pay scale of the post of Ward Officer is Rs.3930-5730 and
the total initial emolument including allowance is around
Rs.9900/- . The appointment to the post of Ward Officer is
made for promotion from Assistant Engineer , Office
Superintendent, Assistant Medical Officer in BMC, which are
in the pay scale of minimum which is not less than Rs.2600/-."
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It was thus contended that BMC employees who intended to
apply for the post of Ward Officer, the requirement of promotion to
the post is taken as a guide line, for deciding the responsible post
in BMC and any Officer drawing the pay in the pay scale which is
below Rs.2600/- in BMC is considered not to possess the
prescribed experience.
18. We specifically raised a query to Ms.Jagdale, whether at
any point of time the Petitioner has raised challenge to the
Advertisement, which had fixed the criteria for selection by
prescribing clause 3.4.4 and her answer obviously is in the
negative.
We are also conscious of the fact that once the Petitioner had
participated in the process, it is not open for her to raise challenge
eligibility criteria. Her challenge to the recommendation of
Respondent No.4, Deputy Manager in Maha Distribution Company
is that she do not fall in the pay scale i.e. prescribed in the
Advertisement.
II ANALYSIS OF THE RIVAL CONTENTIONS
IN GROUP A PETITIONS : -
19. While appreciating the the contentions in the three
Petitions, we have noted that not only the Petitioners have
challenged the eligibility of the Respondents, but by filing Affidavit
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in Reply even the Respondents have raised a challenge to the
eligibility of the Petitioners themselves.
The question for consideration in the three Petitions is
whether the Respondents who were working as Sub Engineers,
were holding a responsible post and, therefore, satisfied the
stipulations in Clause 3.4.4 of the Advertisement.
20. As far as the Respondent in WP No.12317/2023 is
concerned, she is working as Sub Engineer (Civil) with BMC since
04/05/2012 and the details of her employment and duration of
work are mentioned in the extract provided by BMC, which is
annexed alongwith her Affidavit issued by her immediate
Superior from the City Engineer Department and this certificate
has been validly accepted as a proof of her qualifications.
The Corporation has filed an Affidavit, opposing the
contention raised in the Petitioner and categorically stated that it
has 56 departments, where engineers have been posted and they
are rotated, throughout their service and different duties are
assigned to them and relying upon the Chart annexed alongwith
the Affidavit enlisting the duty list, it is submitted that the duty
list is illustrative and not exhaustive, as the Sub Engineers
perform the duties assigned from department to department,
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which may be administrative, executive or supervisory. It is also
categorically stated in the Affidavit that from time to time, when
the advertisements were issued for filling the post of Assistant
Commissioner, Sub Engineers were found to be eligible and they
have been appointed and have served the post of Assistant
Municipal Commissioner and even promoted to higher post.
In the wake of above, we do not find substance in the
contention raised on behalf of the Petitioner since we also find
that a serious objection is raised to the eligibility of the Petitioner
too herself, but in any case we do not intend to indulge into this
exercise, as we find Respondent Smt.Rupali Shinde to be qualified
for being recommended for the post of Assistant Commissioner
(Ward Officer).
Since there is only one post reserved for women scheduled
caste, the Respondent NO.3 has rightly been recommended to fill
up the said post. In any case, Respondent Rupali Shinde has
secured 137 marks whereas the Petitioner has secured 136
marks. Writ Petition No. 12317 OF 2023 is dismissed.
21. The Petitioner Ankush Jadhav in Writ Petition No.12318 of
2023 is aggrieved by inclusion of name of Respondent Nos.3, 4
and 5 in the provisional general merit list and he allege that it is
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in violation of the eligibility criteria prescribed in the
Advertisement, in particular clause No.3.4.1.
At the outset, we must note that Ankush Jadhav, the
Petitioner, who claim the post as belong to ST category has scored
149 marks, whereas, Respondent Nos.3, 4 and 5 have scored
more marks than him. Their eligibility is called in question by the
Petitioner by submitting that the qualifications possessed by
them of having five years experience in a responsible category
including administrative, executive and supervisory capacity is
not fulfilled.
The stand of MCGM in WP No. 16764/2023 applies to him.
22. As far as Respondent No.4 is concerned, he is working as
Programme Executive with Prasar Bharati, which is is non
gazetted and technical post , which according to the Petitioner do
not include any administrative, executive or supervisory
functions and, therefore, it do not fall within the ambit of
"Responsible Capacity".
This stand is contested by Respondent No.4 by categorically
submitting that he was working in the pay band 2, Level 7
(44,900-142400) with grade pay of Rs.4600/- which is
corresponding to Maharashtra Government pay level of M-25. It
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is submitted that the definition of "Responsible Capacity" in
Clause 3.4.4 of the Advertisement clearly stipulated the service
rendered in government organization or public sector
undertaking or similar organization, wherein the Payband of M-
023 i.e. 41800-1,32,200 or above payband or any gazetted post in
pay grade shall be considered.
Since this Respondent was working as Programme
Executive , Grou B Officer in Prasar Bharati, which is a statutory
autonomous body set up under the Act of Parliament and he is
presently posted in All India Radio, Mumbai, apart from the fact
that he is placed in pay level which is equivalent to the
Maharashtra Government pay level of M-25, he is discharging the
functions which are administrative, executive and supervisory in
nature. He has been placed in the provisional general merit list
after passing of the written examination and personal interview.
Respondent No.4 has placed on record the Experience
Certificate issued by the Senior Administrative Officer of Prasar
Bharati, clearly describing his duties of supervisory level
involving planning, proposal supervision etc. In any case, we are
not inclined to go beyond the said certificate, which has
categorically described the nature of duties described by
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Respondent No.4 to be supervisory in nature and we find no fault
in the inclusion of his name in the select list and even the
Petitioner has scored less marks than him.
Respondent No.4 has also raised objection to the eligibility of
the Petitioner who has stated his experience to be of 5 years and 2
months and 24 days, but according to him, this include the
training period of two years, which should be excluded from the
total experience of the Petitioner, which would be thus 3 years, 2
months and 24 days, which we need not get into since we do not
find any illegality in inclusion of name of Respondent No.4 in the
provisional merit list.
23. As far as Respondent No.5 Bhagwat Narayanrao Panzade,
who is working as Assistant Engineer (Pay Group 2) in
Maharashtra State Electricity Transmission Company Limited, is
concerned, the objection of the Petitioner is that his post do not fit
into the criteria of "Responsible Capacity".
The Affidavit in Reply filed by Respondent No.5
categorically state that he was appointed to the post of Assistant
Engineer which has received a specific connotation in the
Advertisement itself. According to Respondent No.5 he was
drawing salary in the pay scale of 61,830-141925 and the post of
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Assistant Engineer in Class II is a class post and definitely would
fall within the scope of "Responsible Post". The nature of duties
discharged by him as Assistant Engineer include operation,
maintenance and testing of electrical installations and lines;
planning, designing and supervision over construction and
erection activities of electrical installations, ensuring safety of
men and material working under supervision and control of
Assistant Engineer, are clearly indicative of supervisory duties,
discharged by him.
Alongwith the Affidavit, a certificate issued under the
signature of Executive Engineer MSETCL dated 28/03/2022 is
placed on record, which certify that Bhagwat Panzade is working
in the organization as Assistant Engineer (Trans) technical post
in supervisory capacity in the pay scale of 61830-139925.
The Affidavit in Rejoinder filed by the Petitioner has
annexed an Administrative Circular No.411 dated 08/07/2014,
issued by the Chief Manager (HR) which has revised the pay
scale of various posts in the department and as far as Junior
Engineer is concerned, it is shown to be revised to the post of
Assistant Engineer.
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24. The contention advanced on behalf of Mr. Desai
representing the Petitioner that the pay scale given in the
Certificate dated 28/03/2022, is the pay scale of the Junior
Engineer, is not the submission worth consideration since the
post has now received a revised nomenclature as Assistant
Engineer and what is worth to note is that the Advertisement
clause 3.4.3 require administrative, supervisory or executive
experience on a responsible post and the responsible post is
defined as post in Government or Semi Government Institution or
any other body in the pay band of M-23 or more and a gazetted
post in grade pay. The pay scale of Assistant Engineer in
MSCTCL, after 2014 is in the pay band of 19110-46320, which is
definitely higher than the one prescribed in the pay band of the
State. Therefore, we are not at all satisfied with the said objection
as we have found that the MPSC as well as the Corporation has
acted on the Certificate of Experience issued by the Executive
engineer of Maha Trans Co admitting that Respondent No.5 has
the experience in supervisory capacity.
We do not, therefore, find any merit in the contention raised
on behalf of the Petitioner and finding no fault in inclusion of the
name of Respondent Nos.3, 4 and 5 in the provisional select list,
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Writ Petition No.12318/2023 is dismissed.
25. In Writ Petition No. 15780, the Petitioner, a candidate
belonging to open (woman) category is aggrieved by the inclusion
of name of Respondent No.3 Smt.Aarti Golekar and Smt.Vrushali
Ingule at Sr.No.10 and 17 in the merit list.
About the selection of Respondent No.3, the objection raised
is , she was working as Sub Engineer at Sea Bridge project,
whereas, Respondent No.4 is working as Deputy Manager (HR) at
Mahavitaran. Admittedly, the Petitioner has secured 151 marks ,
whereas Respondent Nos.3 and 4 have secured 157 and 152
marks respectively and they compete against the Petitioner for
the post reserved for SC female category.
Ms.Vaishali Jagdale insisted in submitting that when she
sought information under the RTI, she was informed that the post
of Sub-Engineer is a non gazetted post. She has also placed
reliance upon the duty chart to show that Sub Engineer do not
discharge supervisory duties. In absence of the recruitment
rules to the post of Ward Officer, she has placed reliance upon the
decision of the Bombay High Court in case of Municipal Mazdoor
Union vs. Municipal Commissioner & Others, wherein it is held
that employees who want to apply for the post of Ward Officer, the
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requirement of promotion to the post is taken as a guideline for
deciding the responsible post of BMC for calculating prescribed
experience by the Commission. We, however, are unable to agree
to as much water has flown after the decision was delivered on
20.09.1996 and thereafter various advertisements are published,
as per the Municipal Corporation when it has found the Sub
Engineers to be qualified to be appointed as Assistant
Commissioners and accordingly they have been selected and even
promoted further.
Arti Golekar, Respondent NO.5 who is holding the post of
Sub Engineer, therefore, cannot be said to be disqualified on that
count. As far Vrushali Ingule - Respondent No.4 is concerned, she
has produced Experience Certificate dated 17/08/2022 issued by
Mahavitaran which certify that she was holding an
administrative/supervisory post from 05/12/2012 and since we
cannot, in exercise of our power under Article 226, go beyond the
said certificate , which is issued by an Authorized Officer, the
eligibility of Respondent no.4 cannot be questioned.
26. In any case, since Respondent No.3 and 4 have secured
more marks in the selection process than the Petitioner, we do not
find substance in the contention raised by the Petitioner, once she
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has participated in the selection process and now finding that she
may not fill up the SC female category post, which will go either to
Respondent Nos.3 or 4 based upon their position in merit, Writ
Petition No. 15780/2023 being without any merit and substance
is dismissed.
B) CATEGORY II
Whether Probation Training should be included or excluded
from the required experience as per the advertisement.
i. WP NO.16764 OF 2023 Shri Bhagwat Panzade vs. MPSC.
27. This Writ Petition is filed by Bhagwat Panzde, who is
represented by Advocate Abhijeet Desai, where challenge is
raised to the recommendation of Respondent No.3, Sachin
Panzade for the post of Ward Officer, who is represented by the
senior advocate Mr. Arshad Shaikh a/w Ms.V.S. Tapase.
Mr. Desai the learned counsel for the Petitioner by inviting
our attention to the Advertisement issued for the said post
contemplating experience of not less than 5 years in the
Government, Semi Government or any big industrial or
commercial concern of administrative, executive or supervisory
capacity has urged that, as far as Respondent No.3 is concerned,
he is shown to have 5 years 2 months and 24 days of experience
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and in the merit list prepared, he is placed at Sr. No.18 whereas
the Petitioner with an experience of 6 years 5 months and 17
days is placed at Sr. No.20.
28. It is the contention of Mr. Desai that pursuant to the
recommendation of name of Respondent No.3 by MPSC for Group
A services, and on being issued a temporary appointment letter
on 13/04/2016, for the period mentioned in the order dated
04/08/2016, he has been placed at 2 years probationary training
period on the post of Deputy Chief Officer, Group A. It is his
contention that on placing him on the probationary training
period of 2 years from 02/05/2016, he had furnished a bond of
Rs.5,00,000/-.
According to him, he was placed in regular posting of Block
Development Officer, Panchayat Sammittee Nandura, District
Buldhana by an order issued by the Rural Department
Department on 16/08/2018.
Relying upon the curriculum of the combined probationary
training programme of 2 years, it is the submission of Mr. Desai
that the training involves the basic training of 8 weeks, technical
training of 8 weeks, the department-wise district affiliation of 7
weeks and a review training of 2 weeks.
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Out of this, according to him, only from 02/04/2018 to
30/04/2018 the Respondent actually worked with an independent
charge for 4 weeks, which might amount to gaining of experience.
He has also placed reliance upon the Government
Resolution dated 11/11/2014 placed on record alongwith his
Rejoinder, which contain general guidelines for the combined
probationary training period of 66 weeks issued by the General
Administration Department. He has also relied upon Government
Resolution of 24/04/2015, making it mandatory for such trainees
to furnish a bond and the objective in furnishing the bond. By
relying upon clause 2 of the Maharashtra Civil Services (General
Condition of Services) Rules, 1981, he has invited our attention to
the term 'duty' as he would submit that though the period of
training/probation would be considered as duty, it cannot be
counted as experience gained.
Contesting the said submission, the learned senior counsel
Mr. Arshad Shaikh has invited our attention to some important
facets of the appointment of Respondent No.3, as he would submit
that the date of appointment of Respondent No.3 is computed as
date of his initial appointment and from the very date of this
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appointment, he was conferred the pay scale applicable to group
A post.
It is his specific contention that probationary period is
included as duty period for all those candidates who are appointed
for the post of Ward Officer, then why should he be deprived of the
same, and in any case it is the submission of Mr. Shaikh that
Petitioner has not sought an appointment for himself, but has
prayed for a negative mandate for not selecting Respondent No.3
to be appointed to the post of Ward Officer.
He would placed reliance upon the decision of the Apex
Court in case of NTPC Ltd. vs. Piyush Kumar Singh 3 where a
distinction is drawn between the period of probation and training
period and it is contended that appointment of a candidate being
on probation, he is entitled to have it counted from the date of he
being placed on probation/training and unless and until the
Advertisement specifically provide for exclusion of this period, as
he has gained necessary experience by working on the said post
and, therefore, he cannot be kept away from the selection process.
Mr. Desai has placed reliance on the decision of Food
Corporation of India vs. Manoj Kumar4, a decision delivered by
3 2023 SCC Online SSC 1516
4 2016 SCC Online Del 5445
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Delhi High Court and another decision of Punjab and Haryana
High Court in Food Corporation of India vs. Babu Lal Yadav (LPA
NO.69/2017 (O&M) in CWP No.9649/2011.
29. The Petitioner Bhagwat Narayanrao Panzade, is placed at
Sr.No.20, whereas, Sachin Kerba Panzade, Respondent No.3 in
the Petition is placed at Sr.No.18, both are contenders for a post
reserved for scheduled caste (SC) category.
The Petitioner has passed his graduation in Electrical
Engineering in the year 2013 and was appointed as Assistant
Engineer in Maharashtra State Electricity Transmission Company
Ltd. (for short, "MSETCL") and, therefore, he claimed that he
fulfilled the criteria, as contained in the advertisement dated
24/06/2021 for being appointed to the post of Assistant
Commissioner.
30. The Petitioner through Mr.Abhijeet Desai, raised a challenge
to the inclusion of Respondent No.3 and his placement in the
seniority list, as it is his grievance that he is placed at Sr.No.20 in
order of merit and there are six candidates, who belong to
scheduled caste category. However, as far as candidates at
Sr.Nos.1 and 2 amongst scheduled caste category are concerned,
they having secured high ranking in order of merit, they deserve
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an appointment against the unreserved female posts on their own
merit. Therefore, the Petitioner, who is listed at Sr.No.6 in
scheduled caste category would shift to Sr.No.4 and the candidate
at Sr.No.3, who is Respondent No.3, do not possess the experience
qualification in terms of clause 3.4.1 in the advertisement, his
name should be deleted.
According to Mr.Desai, as far as Respondent No.3 is
concerned, he appeared for the General State Civil Services
Examination in the year 2015 and came to be appointed on
probation training for a period of two years under the office order
dated 04/08/2016 of the General Administration Department (for
short, "GAD"), on being selected to the post of Deputy CEO/BDO,
Group-A, he was placed at Sr.No.17 in the list of 21 successful
candidates. He underwent the probation training and came to be
regularly appointed on the post w.e.f. 16/08/2018.
It is, therefore, the submission of Mr.Desai that pursuant to
the Respondent No.3 being placed on probationary training w.e.f.
02/05/2016, for a period of two years, and his regular posting
w.e.f. 16/08/2018 do not make him eligible for appointment of the
post, which requires five years experience of administrative,
supervisory or executive in a responsible capacity in
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Government, Semi Government or any big industrial or
commercial concern.
Mr.Desai has placed before us the chart, which forms part of
the probation training curriculum, which has divided it into
distinct categories, including the basic training programme of
eight weeks, technical training of eight weeks, Departmental
District affiliation programme of seven weeks, Delhi tour of one
week, Maharashtra Darshan of one week, Review Programme of
two weeks and independent charge handling for four weeks from
02/04/2018 to 30/04/2018. It is the contention of Mr.Desai that
combined probationary training programme, which is conducted
at Yashwantrao Chavan Academy of Development Administration
(YASHADA), commenced from 02/05/2016.
We have perused the training programme placed on record,
which has spread over seven phases, covering foundation
training, compulsory attachment, technical training,
Departmental District Attachment, Delhi Exposure, Maharashtra
Exposure, De-Breifing Training and remaining District
Independent Charge. The Class training, consumed five months,
whereas field training has consumed nine months, which is only
to be undergone after the probationary training,
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The Respondent No.3 was appointed on regular post of Block
Development Officer and his actual service commenced from
06/09/2018 at Panchayat Samiti Nandura, District Buldana, and
therefore the actual experience gained by him, according to
Mr.Desai, is only of 2 years 10 months and 15 days.
31. This contention is opposed by the learned senior counsel
Mr.Shaikh, representing Respondent No.3, who has filed a
detailed affidavit alongwith the necessary documents. In
paragraphs 7 and 8 of the affidavit, a specific stand is adopted to
the following effect :-
"7) It is submitted that; as per the Maharashtra Development Service
rules it is the prerogative of the government either to direct the
selected candidates to undergo probationary training period or the
government may exempt from such a probationary training period.
That as per the standard practice and procedure, the candidates used
to be appointed on a two-year probation period and upon completion
combined probationary/training period the services are regularized
from the date of initial appointment i.e from the date of probationary
period term. That during the probationary period, the government has
sent the present respondent number three and all other candidates
who have been finally selected and recommended for the post of deputy
chief executive officer/Block development Officer as a compulsory
attachment to the different departments of the government as a part of
probation period and under the combined probationary training
program the probationers have also require to perform different tasks
like day officer, escort officer and hence it is administrative, executive
or supervisory in service experience. Furthermore, during the
probation period, the Respondent No. 3 was also holding as in charge
post and as well as independent posts of block development officer and
has acted and worked on the side post during the probation period.
Hereto annexed and marked as Exhibit R-3 collectively are the Copies
of documents depicting the post on which the present Respondent has
worked during the probation period.
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8) The present Respondent has duly discharged his duties and
responsibilities on the post during the probation period. It is also
pertinent to note that the responsible capacity as defined under clause
3.4.1 under the said advertisement requires that the candidate should
be Gazetted officer and must have worked on post having a pay band of
Rs.41,800 to 1,32,300 and as far as the present Respondent No. 3 is
concerned, his pay scale is more than the said pay Band prescribed
under the said advertisement and he's getting the salary under the
said pay band since the first date of appointment that is including the
period of probation. That the present Respondent has also got the
difference in pay for the services during probation period. Hereto
annexed and marked as Exhibit R-4 is the Copy of Documents
pertaining to payment of difference amount to the present Respondent
for the services rendered during probation period."
32. Reliance is placed upon the Maharashtra Development
Service Probation Rules, 1984 framed under Article 309 of the
Constitution of India, where the 'probationer' is defined to mean a
person appointed to the service on probation and, according to
Mr.Shaikh, a candidate appointed by nomination, as per the the
Rule, shall be appointed on probation for a period of two years,
which indicate that the probation period is post appointment of
the service and not pre- appointment. It is, therefore, submitted
that the probationer is appointed in service as Deputy Chief
Executive Officer from the date of his appointment as probationer
and,therefore, a candidate working on the said post from the
initial date of appointment is said to have been gained experience.
In addition, reliance is also placed upon the Maharashtra
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Civil Services (General Conditions of Services) Rules, 1981 and, in
particular, the clause which defines 'Duty' to include (a) service
as probationer, (b) joining time and (c) course of instructions or
training authorized by or under the orders of Government. In
addition, reliance is also placed upon Rule 9(43) Note 3 of the said
rules, which reads thus :-
"Note 3 : the status of probationer is to be considered as having the
attributes of a substantive status, except where the rules prescribe
otherwise".
In addition, reliance is also placed upon the Experience Certificate
annexed to the affidavit by the competent authority, which has
certified that Sachin Panzade is working as Administrative/
Executive from 02/05/2016 and the certificate annexed at Exhibit
R-8 issued by the Chief Executive Officer, Zilla Parishad,
Bhandara, has computed the total experience of the probationer
in the following manner :-
Sr. Period From -10 Post held Nature of Nature of Post Pay Scale Last Net pay
No. appointment drawn
th
1 02-05-2016 to Probationary Dy. CEO / Permanent Administrative/ 6 Pay (15600-
31-08-2018 BDO (Group-A) at Yashada Executive 39100) Grade
Yavatmal & Gondia Pay 5400
2 06-09-2018 to Block Development Officer Permanent Administrative/ 6th Pay (15600-
04-02-2020 (Group-A) Nandura Dist. Executive 39100) Grade
Buldhana Pay 5400
3 04-02-2020 to Officer on Special Duty of Permanent Administrative/ S-20 (56100-
16-09-2020 Hon'ble Speaker, Mah. Executive 177500)
Legislative Assembly,
Mumbai
4 16-09-2020 to Dy. Chief Executive Officer Permanent Administrative/ S-20 (56100- Approx.
till today (Gen.), (Group-A) Zilla Executive 177500) 72500/-
Parishad, Bhandara
33. Mr.Shaikh has placed the reliance upon the decision in the
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case of NTPC Ltd. Vs. Piyush Kumar Singh 5 and he has also placed
on record the Food Corporation of India (Staff) Regulations, 1971,
so as to appreciate the arguments of Mr.Desai.
Learned senior counsel Mr.Shaikh has also placed on record
the Government Resolution dated 23/09/2011 issued by GAD, on
the subject of "State Training Policy of Maharashtra".
34. The question that arises for consideration before us is,
whether the period spent by Respondent No.3 in "Combined
Probation Training Programme-3" (CPTP-3) from 02/05/2016
before he received regular appointment on 16/08/2018 is to be
computed as "experience in a responsible capacity for not less
than five years", as contemplated in clause 3.4.1 of the
advertisement.
Maharashtra Civil Services (General Conditions of
Services) Rules, 1981, which apply to all members of services and
holders of post whose conditions of service, the Government of
Maharashtra is competent to prescribe, has defined the following
terms:-
5 2024 SCC OnLine SC 1516
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"9(3). Apprentice means a person deputed for training in a trade or
business with a view to employment in Government service, who is
paid at monthly rates by Government during such training but is not
employed in or against a substantive vacancy in the cadre of a
department."
9(14). Duty - duty includes.-
(a) service as a probationer;
(b) joining time;
(c) a course of instructions or training authorised by or under the
orders of Government;
(d) course of instruction or training authorised by...."
9(18). First appointment means the appointment of a person under
the Government by recruitment process:
Provided that, if a person is holding a post previously in the
Government and he/she is selected by direct recruitment for another
post in the Government that new appointment is also a first
appointment.
Note.-"recruitment process" means as per the provisions of
Recruitment Rules, the selection by Maharashtra Public Service
Commission or Competent Selection Authority or appointed on
compassionate ground.)"
9(43). Probationer means a Government servant employed on
probation in or against a substantive or temporary vacancy in the
cadre of a department.
Note 1.- No person appointed substantively to a permanent post in a
cadre is a probationer, unless definite conditions of probation have
been attached to his appointment, such as the condition that he must
remain on probation pending the passing of certain examination.
Note 2.- A Government servant (other than one who holds
substantively a permanent post) appointed on promotion to a
temporary post will be treated for all purposes as a temporary
Government servant.
Note 3. The status of a probationer is to be considered as having the
attributes of a substantive status except where the rules prescribe
otherwise."
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35. There cannot be any quibble over the issue that a
'Probationer' is a Government servant employed on probation in
or against a substantive or temporary vacancy in the cadre of a
department and the status of the probationer is to be considered
as having the attributes of a substantive status. On completion of
satisfactory period of probation, a Government servant is
considered to be appointed on the said post from the date of his
first appointment. However, in the present scenario, we are called
upon to deal with 'Combined Probationary Training Programme'
and when we have perused the curriculum of CPTP-3, spread over
seven phases, we have noticed that except the district attachment
in the last phase, most of the phases are to be completed in
YASHADA, the training institute at Pune and this includes the
foundation training as regards the judicial work, legislature etc. It
also includes technical programme spread over a period of eight
weeks, both to be conducted in the institute. Then one week each
is assigned for Delhi visit and Maharashtra visit. It is only in the
last phase of four weeks, when there is independent charge, to be
handed over to a candidate.
36. When we have perused the curriculum of the probationer
training programme, a concept floated by the GAD by order dated
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04/08/2016, which include the name of the probationer, who is
enlisted in the class of Chief Executive Officer-A, it has stipulated
that the Combined Probationary Training Programme will be of a
period of two years. Condition No.4 of the same prescribe that it
will be necessary for a candidate to satisfactorily complete the
probationary training programme. It is also specified that for the
first fourteen weeks of the probation period, the candidate will be
paid Rs.30,000/- consolidated pay, but when he present himself
for technical training, he will be entitled for regular pay and also
the difference between the consolidated payment mode and the
payment which is due and payable to him.
37. One more stipulation prescribed is that during the
probationary training period, the candidate will have to clear
departmental examination and if he fails to do so, the period shall
be extended for maximum period of one year and even if in the
extended period, the departmental examination is not cleared,
his/her services shall be liable to be terminated. Any
misbehaviour or misdemeanor would entail putting an end to the
service. What is more relevant is clause 14 of the said Resolution,
which stipulate that as per the Government Resolution of the GDA
dated 22/04/2015, it will be imperative to conduct an examination
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of 200 marks of the curriculum that has undergone during the
probationary training, with the minimum passing marks. The
seniority of the candidate in the cadre would be determined based
upon the marks obtained in the said examination and in the main
examination (written and interview) and this would determine
his placement in the seniority list.
38. From reading of the clauses in the order dated 04/08/2016,
when the Respondent No3 was placed on probationary training
for a period of two years, with the stipulations stated above, it is
evident that it was not a normal period of probation, when an
employer evaluates the appointee's performance, suitability and
his fitness to be confirmed in the employment. It is a normal rule
in service jurisprudence that on satisfactory completion of the
probationary period, the employee is entitled to absorb on a
permanent post, by giving effect to his appointment from a date,
when he has resumed the post and that period is counted in his
length of services, which shall determine his pension, seniority
etc. In the present situation, it is not that the Respondent No.3
was placed under probation, but he was undergoing 'probationary
training' and undisputedly, on successful completion of the
probationary training, on clearing the examination conducted, he
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will be entitled to have his service counted from 02/05/2016, but
the issue before us is, whether while under probationary training
period, he has acquired administrative, executive or supervisory
experience in a responsible post and according to us, the clear
answer is in the negative.
39. As per the subject advertisement, the requirement is of
experience of five years in the administrative, executive or
supervisory capacity and not merely the length of service. The
government order dated 04/08/2016, in respect of 57 officers,
who were selected in Group A, for various posts reflect that they
were placed under probationary training for a period of two years.
The recitals of the order, which we have reproduced above, is
clearly indicative of the fact that whatever training is offered in
the two years, will be decided through examination to be
conducted at the end of the period and if this period is not
satisfactorily completed or the examination is not cleared, the
appointees are not entitled for being appointed. Not only this, the
marks secured in the examination would be computed for
determining the seniority of the candidate.
The curriculum of the "Combined Probation Training
Programme", which covered a period from 02/05/2016 to
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30/04/2018, which was offered in YASHADA, involved lectures
being delivered on various topics so as to make them acquainted
with various subjects like law, legislation, departments etc.
During this period, they are in the learning process and are not
discharging any duty except in the last phase, when some duties
are entrusted to them. Therefore, we do not find any substance in
the submission of Mr.Shaikh that the candidates actually gained
the administrative, executive, supervisory experience in the said
post, as despite the fact that they were the probationers, they
were not entrusted with any independent duty/responsibility, but
they continued to be under training, so as to make them equipped
to take up responsible post, once they cleared the examination
conducted at the end of the probationary training period.
40. The reliance by Mr.Shaikh on the decision of NTPC Ltd.
(supra) is of no succour to him, since we find that the
advertisement involved stipulated the experience required as
minimum three years post qualification/supervisory cadre in the
relevant area. It is in this background, what is held is that the
advertisement nowhere stipulated that the probationary period
or the training period is to be excluded for the purpose of
computing the total period of experience, for any candidate.
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Therefore, the Respondent No.3 according to us who was
placed under probationary training fails to meet the requirement
of the experience as per the advertisement.
41. Mr.Desai has relied upon the decision of Delhi High Court
in Food Corporation of India vs. Manoj Kumar Singh (supra),
where the question arose whether the essential qualifications for
the post of Assistant Railway Manager (Technical) through direct
recruitment requiring five years experience in the storage of
food grains and maintenance of stock or in the examination,
inspection and analysis of food grains in the Government or public
private limited undertaking, would include the experience
acquired as Junior/Senior research fellows while pursuing higher
studies.
The Respondents were working as Managers (Quality
Control) with the Appellant Corporation and they were inducted
Management Trainees in terms of the Scheme approved by the
Board of Directors of the Appellant Corporation.
The Training Programme indicated that it was broken into
four phases i.e. A, B, C and D with number of working days
earmarked in each phase being stipulated.
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The training envisaged visit to training locations in order to
enable the Trainees to familiarize themselves with different
aspects such as siding depot loading and unloading, goods shade
loading etc. The three different phases, provided therein in
different fields, when the trainees were attached to specific
operational centres for a prescribed period.
The practical training was to be conducted under the
supervision and control of Centre Training Institute, New Delhi
and the Scheme also envisaged evaluation of performance of
management training during and at the end of the course.
42. When the Advertisement was issued invitinig applications
for the post of Assistant General Manager (Technical), which
stipulated the necessary experience, the question that arose was,
whether the training or study period was or was not to be
included as work experience. In Para 12, the Division Bench of
Delhi High Court recorded thus :
"12. In these circumstances, we do not think that the practical or
on-the- job training included in the period of training as Management
Trainees undergone by the respondents can be treated as qualifying
experience under the advertisement. The experience stipulated was
specific and particular to storage of food-grains and maintenance of
stocks, or in the examination, inspection and analysis of food grains in
Government or Public/Private Ltd. Undertakings."
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The attention of the Court was invited to Sub Rule 6 (b),
Fundamental Rule 9 , which determined as to when government
servant shall be treated as on duty and the Rule prescrib as
below :
"F.R. 9. (6) (b) A Government servant may be treated as on duty-
(i) during a course of instruction or training in India, or
(ii) in the case of a student, stipendiary or otherwise,
who is entitled to be appointed to the service of the Government on
passing through a course of training at a University, College or School
in India, during the interval between the satisfactory completion of the
course and his T assumption of duties."
In the backdrop of the above Rule, a pertinent observation
reads thus :-
"Sub Rule (6) of Fundamental Rule 9, when it deems and treats a
trainee as on duty during the training or during the induction course,
has a different purpose and import than treating the period of training
as work experience. It ensures that candidates selected for
Government service undergoing training, adhere to and follow the
rules and regulations applicable to Government servants while on
duty. Obviously Fundamental Rule 9 would not apply for it relates to
and postulates a different and distinct situation. The mandate is
different. The trainee must adhere to, and follow rules applicable to the
Government servants on duty."
43. To saviour the aforesaid situation, the Respondent relied
upon the O.M. dated 08/03/1983, which by a deeming fiction
stated that service rendered by an employee before his regular
employment shall be counted as qualifying service for purposes of
eligibility for department examination , even if during the training
period, the Trainee is not given the scale of pay equivalent to that
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of the post and was paid only a nominal allowance. However, the
Court did not find favour in extending the benefit of O.M. to the
benefit of the Respondents as it held that the office memorandum
gave a limited and restricted concession to government employees
by treating the training period as qualifying service, solely for the
purpose of departmental examination and it would apply equally
to all government servants inducted to a post after the training
course and entitled to be considered for promotion on clearing of
qualifying in the departmental examination. But the eligibility or
relaxation granted by counting the training period as experience
would not as a equator, mandate that training or course period
would be counted as work experience for all purposes.
As a result, the Appeals filed by the Food Corporation of
India were allowed, by setting aside the decision of the learned
Single Judge.
44. We find the facts of the case involved before the Delhi High
Court somehow identical with the facts placed before us and since
training was construed as pre service training, despite the fact
that it would subsequently be counted as qualifying service,
definitely would not entail to the benefit of Respondent No.3.
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Another decision of High Court of Punjab and Haryana High
Court at Chandigarh, in case of Food Corporation of India and
Ors. vs. Babu Lal Yadav & Ors. (supra) which is upheld by the
Apex Court in the SLP preferred was dismissed, also is somehow
based on similar lines. The Petitions came to be filed before the
learned Single Judge by the Petitioners claiming that they are
eligible for the pose of Assistant General Manager, (Technical) as
they had qualified the written test and had 5 years experience in
storage of food grains and maintenance of stock or in the
examination, inspection and analysis of food grains in
Government or public/private limited undertaking. The learned
Single directed that the experience of the Petitioner as
management trainees be also counted towards experience in
storage of food grains.
When the order passed by the learned Single Judge was
impugned, it was canvassed that the training only
sessions/classes are held, but responsibilities are not assigned to
the person to work independently which is the experience
required.
Despite the fact that that Respondent No.3 has been
confirmed in the service from the date of appointment and on the
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same pay scale, since the question before us is whether the
Respondent had gained experience in administrative,
supervisory, executive capacity, we find that he did not, since he
was only undergoing training and not handled any duty of any
post independently and what was required as per the
Advertisement was the experience in executive, supervisory,
administrative nature for last five years.
Since we find that Respondent No.3 has failed to meet this
criteria, we allow the Writ Petition by declaring that inclusion of
name of Respondent NO.3 in the list at Exh.C and D is improper
as he failed to meet the criteria experience qualification as
prescribed in clause 3.4.1 of the Advertisement. In the wake of
the aforesaid discussion, name of Respondent No.3 shall be
deleted from the selection list/ recommendation list.
Writ Petition is made absolute in the aforesaid terms.
GROUP - C CATEGORY III
(Economically Weaker Section)
45. In this group, we find Petitions raising challenge to the
selection/ recommendation of private Respondents under
Economically Weaker Section (EWS) category.
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In the advertisement published by MPSC on 24/06/2021, to
fill up 16 posts of Assistant Commissioner, 5 posts are for open
category out of which 2 are reserved for women (30%) and 3 are
for general. Two posts are reserved for EWS of which one post
goes to female and one is for general.
For claiming benefit of reservation under EWS category,
parameters laid down in the Government Resolution dated
12/02/2019 are to be applied which stipulate that in order to be
qualified for reservation, the person applying shall have his
annual family income, within the limit of Rs.8,00,000/- in
previous financial year of the date of Application.
46. In the present case, the financial year 2020-2021 is
considered as the last date of Application as the post was
advertised on 26/07/2021.
The Government Resolution also defined the term "Family"
to include the Applicant/Applicant's mother, father and siblings
below 18 as well as the Applicant's children below 18 years and
his/her spouse. Thus, the total annual family income includes
income of all family members from all sources like salary,
agriculture, income, business income and income from any other
source for previous financial year prior to the date of Application
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and in no case it shall exceed more than Rs.8,00,000/-.
The Government Resolution also set out the mechanism for
issuance of the Eligibility Certificate and as per clause 2D,
Tahasildar is authorized as the competent Officer to give a
declaration of EWS and the manner in which the application shall
be made and it shall be processed, is specifically set out in the
Government Resolution.
The Government Resolution is appended with Annexure A,
which is format of "Eligibility Certificate for Economically Weaker
Section", which certify that the person is within the category of
Economically Weaker Section as his/her gross family annual
income from all source is less than Rs.8,00,000/-.
Appendix B to the said Government Resolution has enlisted
the list of documents to be submitted for obtaining the Certificate,
with a declaration that the information supplied is true and
correct and if it is found to be false, his application shall be liable
to be rejected and if any job is secured on the basis of the
certificate, a person shall be entitled to face adverse
consequences and or the admission gained is liable to be cancelled.
Appendix C has also enlisted the documents to be supplied
as a proof or identification/address, age and as a proof of income.
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A declaration in Appendix D make it imperative for the candidate
to give the details of the earnings from various sources.
47. It is in this background, we are called upon to decide the
challenge to the Respondent's candidature at the instance of the
Petitioners, a claim being raised that they are not eligible to be
considered from EWS category.
I) WRIT PETITION NO.16761 OF 2023
48. The Petitioner Anirudha s/o GopalKrishna Kulkarni applied
for the subject post and qualified himself to attend the interview
and thereafter general merit list of 63 candidates was published
and name of the Petitioner appeared as Sr.No.3.
Since the petitioner was working as Assistant Engineer
Grade II in Water Resources Department of Government of
Maharashtra and was placed in pay band of S-15, his gross
annual income from salary for the financial year 2020-2021
according to the Income Tax returns for the Assessment year
2021-2022 was Rs.8,35,617/-. Admittedly, the Petitioner do not
fall within the EWS category. The contention is that neither of
the Respondent Nos.4 to 9 are entitled to claim benefit of CWS
since their income is more than Rs.8,00,000/-.
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49. However, on publication of the General merit List on
08/09/2023 the Petitioner gained knowledge that Respondent
Nos.4 to 10 were included in General merit List under EWS
category and, therefore, he preferred a representation to
Respondent No.2 pointing out to their ineligibility, but there was
no consideration of his grievance which constrained him to seek
information under RTI as regards the income of the Respondents
and he has placed the entire material before us through the
Petition claiming that the Respondents are ineligible to claim the
general (EWS) seat.
Mr.Desai has placed on record a Chart giving description of
Respondent Nos. 5 to 10 and objection raised by him as regards
they being categorized as belonging to EWS.
Sr.No. Post Held Family Annual Family Actual Annual
Member Income for F.Y. Family Income
Income Source 2020-21 as per of Respondents
Information EWS Certificate
Respondent Assistant Director Her Husband Claims her As per RTI
No.5 Group A in works as family annual reply her gross
Maharashtra Tahsildar gross income salary is
Finance and Group A from all sources Rs.78,194/- per
Accounts for F.Y. 2020-21 month which
Department in to be less than translated
Payband Rs.56100- 8 lakh annually her
177500 annual gross
income for F.Y.
2020-21 is
Rs.9,38,328/-
Moreover her
husband's
income is not
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considered in
this. Exh."A-1"
Pg. No.260,261.
Respondent Assistant Engineer EWS Certificate His Form-16
No.6 Group A in shows his mention gross
Municipal family annual annual income
Corporation of gross income for F.Y. 2020-21
Greater Mumbai in from all sources is
Pay band Rs.56100 - for F.Y. 2020-21 Rs.12,27,176/-
177500 is Rs.49,987/- Exh.A-2
Exh "AR-5" PG Pg.No.262
No.118
Respondent Sub Engineer Group EWS Certificate His Form-16
No.7 B in Municipal shows his mention gross
Corporation of family annual annual income
Greater Mumbai in gross income for F.Y. 2020-21
Payband Rs.41800- from all sources is Rs.8,46,840/-
132300 for F.Y. 2020-21 Exh."A-3" Pg
is Rs.7,77,098/- No.265
Exh "AR-6" Pg
No.119
Respondent Chief Officer Group Suppressed EWS Certificate Copy of Satbara
NO.8 B in Urban information shows his (7/12) extract
Development regarding family annual in the name of
Department in Business gross income Mr.Limbaji
Payband Rs.41800- Income of his from all sources Vishwanath
132300 wife for F.Y. 2020-21 Dure
Mrs.Bhagyash Rs.6,30,000/- Exh."A-4"
ri Kamalakar Exh."AR-7" Pg.No.268,269
Pawar and Pg No.120
Agricultural
Income of his
Father
Mr.Lambaji
Vishwanath
Dure
Respondent Food Safety Officer Her Husband EWS Certificate As per RTI
No.9 Group B in Food and MR.Nandkum shows his reply her gross
Drugs ar Bhombe family annual salary is
Administration in works as Chief gross Income Rs.65,103/- per
Payband Rs.41800- Officer Group from all sources month which
132300 B for F.Y. 2020-21 translated
Rs.5,10,000/- annually her
Exh.AR-8 annual gross
Pg.No.121 income for F.Y.
2020-21 is
Rs.7,46,914/-
Moreover her
husband's
income is not
considered in
this
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Exh"A-6"
Pg.No.273-276
Respondent Chief Officer Group Her Father EWS Certificate Her EWS
No.10 B in Urban Mr.Prahlad shows his certificate is
Development Vishwanath family annual cancelled by
Department in Tonge is gross income SDM, Hingoli by
Payband Rs.41800- Registered from all sources order dated
132300 Government for F.Y. 2020-21 07.01.2025 on
Contractor Rs.6,60,900/- account of
registered Exh-AR-9 suppression of
with Public Pg.No.122 income
Works obtained by her
Department father.
50. As far as respondent no.4 Sayyad Samrin Salim is
concerned, it is argued by Mr.Desai that the eligibility certificate
issued in her favour has incorrectly described her gross family
annual income from all sources as Rs.7,14,118/- which is less than
Rs. Eight lakhs and therefore, she is awarded the EWS category.
The response of respondent no.4 in this regard is, that she had
applied for EWS Certificate on the basis of Form 16 which was last
updated on 23/6/2021 which is issued under Section 203 of the
Income Tax Act, and as per Part-B of the said Form, her gross
total annual income is mentioned as Rs.7,14,118/- for the A.Y.
2021-2022, and since the EWS Certificate was based upon Form
No.16, it cannot be faulted with.
51. We have perused Exhibit-C produced by respondent no.4
along with her affidavit. The certificate indicate the Assessment
Year 2021-2022 and the amount credited to her account is shown
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to be Rs.7,76,136/- and the amount of tax deducted is Rs.27,410/-.
52. Thus, the case of respondent no.4, the EWS Certificate is
based on Form No.16, and we fail to find any disparity.
53. The submission of Mr.Desai is contested by learned senior
counsel representing respondent nos. 5 to 9. Mr.Amit Karande
who represent respondent no.5 failed to mark his appearance.
However, we have perused the affidavit filed by respondent no.5
working as Chief Accountant, wherein she has adopted a stand
that she was armed with the eligibility certificate for economically
weaker section dated 3/12/2021 which was based on income of
previous final year which was valid for one year. She assumed
that the application could not have been submitted without filing
the column of date and number of EWS Certificate and she has an
objection to the fact that concept of non-creamy layer certificate is
not applicable to the EWS Category, and when on 11/1/2023,
when her candidature was rejected on the ground that the
eligibility certificate submitted by her was not to be considered
and she was declared ineligible, she filed a Writ Petition which was
dismissed on 9/2/2023.
There is no denial to the assertion by the petitioner that the
husband of respondent no.5 work as Tahsildar, which is group 'A'
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post. As per RTI, reply received by the petitioner, the respondent
no.5's gross salary per month is Rs.78,194/0 which gets
translated annually as her gross income for Financial Year 2020-
21 as Rs.9,38,328/-. The information obtained under RTI is
placed on record along with the affidavit rejoinder filed by the
petitioner on 8/12/2024. Admittedly, since gross salary of
respondent no.5 is above Rs.Eight Lakhs, she cannot belong to
EWS category.
54. As far as respondent no.6 Suresh Patil is concerned, the
objection raised is that he is working as Assistant Engineer Group
A in MCGM in the pay band of Rs.56,100 - Rs.1,77,400 and his
family annual gross income for F.Y.2020-21 is reflected as
Rs.49,987/-. The eligibility certificate produced by him is annexed
as Exhibit 'AR' issued by the Tahsildar which has certified as below:-
"His gross family annual income from all sources if 49,987/-
which is less than Rupees Eight lakhs. Therefore, it is certified
that he is within category of economically weaker section."
Along with the rejoinder filed by the petitioner, he has
placed on record Form No.16 which is a certificate under Section
203 of the Income Tax Act, 1961, for tax deducted source on
salary and in this certificate, the gross salary of respondent no.6
for the A.Y. 2021-22 is shown as Rs.12,27,176/-.
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55. Respondent no.7 Patil Swapnil Kisan is represented by
Mr.Bapat who would submit that the EWS Certificate has shown
his family annual gross income as Rs.7,77,098/- but admittedly,
the document collected by the petitioner and annexed in the
rejoinder i.e. Form No.18 is mentioned as 'Annual Income for F.Y
2020-21 as Rs.8,46,840/-. He has also filed WP No.12074/2023. In
addition, the objection raised by Mr.Desai that the application for
EWS is preferred by his mother is met with vehemence by
Mr.Bapat by submitting that in Covid times, his mother has filed
an application and we do not find that there is any legal flaw in the
application being preferred on his behalf by his mother as long as
the necessary information was supplied. However, since the gross
annual income for the Financial Year as per Form No.16 is shown
to be Rs.8,46,840/- which is more than Rs.Eight lakhs, he do not
become eligible to claim the benefit of EWS.
56. As far as respondent no.8 who is represented by Mr.Naidu,
the allegation faced by him is that he has suppressed information
regarding business income of his wife Mrs. Bhagyashree Pawar,
an agricultural income of his father. The EWS Certificate issued in
his favour has shown his family annual gross income from all
sources as Rs.6,30,000/-.
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By relying upon the affidavit filed, Mr.Naidu would submit
that the EWS Certificate issued in his favour was challenged by
the petitioner before the First Appellate Authority i.e. the Sub-
Divisional Authority, Chhatrapati Sambhaji Nagar and therefore,
it was cancelled by order dated 5/7/2024, but it was challenged by
his client before the Second Appellate Authority which has
quashed the order of the Sub-Divisional Magistrate and restored
the EWS Certificate. As far as this respondent is concerned,
merely annexing 7/12 extract of the agricultural land of his
father would not suffice, as what would have some relevance is the
income/earning from the said land. Though Mr.Naidu admit that
Respondent No.8 was married in the year 2022, in absence of any
evidence to show that his wife had some independent income,
which ought to be included in the annual income of the family and
since the petitioner had already challenged the EWS Certificate in
favour of respondent no.8, before the appropriate forum and now
the Collector has restored the certificate, we do not find any
reason to show any indulgence as against candidature of
respondent no.8 is concerned.
57. Respondent no.9 is a Food Safety Officer, Group B and his
EWS Certificate has shown his income as Rs.5,10,000/- but
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according to the petitioner, her husband Nandkumar Bombe is
working as Chief Officer, is working as Chief Officer, Group B, there
is no denial to the said assertion as respondent no.9 has not filed
any affidavit in reply.
The petitioner under the RTI Act sought information that
gross salary of respondent no.9 is Rs.65,103/- per month which is
translated to Rs.7,46,914/-. The necessary documents to that
effect are placed on record from page nos.273 to 276. There is no
denial that the husband of respondent no.9 is working as Chief
Officer and therefore, his income will have to be included in the
family income before the EWS Certificate is conferred. However, it
appear that the EWS Certificate has failed to consider her actual
income for F.Y 2020-21 as well as the income of her husband.
Respondent no.10 is also working as Chief Officer, Group B in
Urban Development Department and EWS Certificate has shown
the gross income from all sources for F.Y. 2020-21 as
Rs.6,60,900/-. However, her EWS certificate is cancelled on
7/1/2025 and as such, the grievance of the petitioner against
respondent no.10 do not survive.
58. On examining the case of respondent nos.4 to 9, we find that
as far as respondent no.4 is concerned, her certificate
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corresponds with Form No.16 and her income is less than
Rs.Eight lakhs, which make her eligible for being categorised in
economically weaker class. As far as respondent nos.5, 6, 7 and 9
are concerned, their EWS Certificate is based upon incorrect
reflection of the income which necessarily include the income of
the family as defined in the G.R dated 12/2/2019 and therefore,
the EWS Certificate is flawed one. We are conscious of the fact
that a remedy would lie against issuance of the said certificate in
form of an Appeal if a person is aggrieved, as Clause 2(d)
contemplate an Appeal if a certificate is refused or if the
certificate is wrongly granted to a competent authority
prescribed. However, since Form 16 is a statutory document
which is reflective of the annual income of an assessee and as the
G.R contemplate that while issuing the certificate for economically
weaker section, the total income of the entire family shall be taken
into consideration, we find the EWS Certificates to be incorrect.
59. Though it is vehemently urged before us by the learned
counsel for the respondents that this court shall not sit as an
Appellate Authority to examine the validity of the EWS Certificate
and unless and until it is cancelled, it shall remain in force, we do
not agree with the said submission. Prima facie, we find that EWS
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Certificates are procured by respondent nos.5, 6, 7 and 9, and
they have not furnished the appropriate information resulting
into issuance of the EWS Certificate in their favour without
considering the parameters prescribed in the Government
Resolution and therefore, we grant liberty to the Corporation to
treat their cases as 'doubtful' and advised to follow a further
procedure for scrutinizing its truthfulness and veracity. In any
case, at this stage, we must indicate that the candidature of
respondent nos.5, 6, 7 and 9 shall not be considered from EWS
Category.
The Writ Petition filed by the petitioner therefore is partly
allowed. However, as far as respondent no.4 and 8 are concerned,
they are held entitled to compete from EWS category by rejecting
the contention advanced by the petitioner in this behalf.
(II) Writ Petition NO. 839/2025
60. This Petition is also filed by Anirudh Kulkarni, a candidate
from open category raising a challenge to the inclusion of Sayyad
Samrin and Anil Dure, respondent nos.3 and 4 in the general
merit list dated 8/9/2023 published by MPSC on the ground that
they do not hold the valid experience as per advertisement.
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Since in the first Writ Petition No. 16761/2023 filed by him,
we have found Smt. Sayyad Samrin, the respondent no.4 and Shri
Anup Dure, Respondent No.8 to be eligible to hold EWS Certificate,
the prayer made by the petitioner, that in absence of the
availability of EWS candidate, the post should be converted into
open category as per clause 11 of G.R. and that he should be
considered for appointment, cannot be entertained. Writ Petition
is therefore, dismissed.
(III) Writ Petition No. 12074 of 2023.
61. The present Petition is filed by Swapnil Patil, the respondent
no.7 in Writ Petition No.16761 of 2023, who has raised an
objection to inclusion of 3 respondents; namely Sayed Samreen
Salim, Vaishali Thorat and Suresh Patil, in the selection list as
according to him, they are not qualified for selection and
appointment to the post of Assistant Commissioner.
We have heard Mr. Wasim Samlewale for the petitioner, Mr.
Suhas Deokar for respondent no.4 and Mr. Amit Karande for
Vaishali Thorat.
The objection of the petitioner is that, he stood at Serial No.4
in EWS category and over all 50th in General merit list, whereas
Respondent No.4 stood at Serial No.1 and Respondent No.5, stood
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at Serial No.2 and Respondent No.6, stood at Serial No.3 in the
EWS category. It is not disputed by the petitioner that he secured
137 marks, whereas respondent no.4, 5 and 6 secured 146, 138,
and 138 marks respectively. He is constrained to challenge their
inclusion in the list as according to him they cannot claim the
benefit of EWS category, a constitutional reservation, which has
resulted into reservation of 10% seats in the recruitment
procedure.
62. By relying upon the Government Resolution of 12/02/2019,
challenge is raised to the categorization of respondent no.4, as
Sayed Samreen along with a ground that she has experience of 3
years and 23 days on the date of advertisement as she was
serving as Assistant Regional Transport Officer (Group B), her
appointment on the post being made on 1/06/2018. It is thus
urged that, her period of two years as trainee would not be
counted in her total experience, and even if that period is included
she do not fulfill the experience qualification of 5 years.
It must be noted that, as far as Smt. Sayed Smareen is
concerned, we have tested the objection raised in respect of her
candidature that she do not belong to EWS category in the petition
filed by Shri Anirudh Kulkarni (WP ) 16761/2023, and we have
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repelled the contention.
63. Mr. Deokar, representing Respondent No.4 has invited our
attention to the Affidavit affirmed by her stating that she joined as
Assistant Regional Transport Officer on 2/05/2016, and
discharging functions and duties under the Motor Vehicles Act,
1988, and the Rules made thereunder. She has justified her
entitlement to claim EWS certificate. As far as the experience is
concerned, she submit that she had assumed her duties and the
duty include service as well as probation period since she was
appointed on substantive vacancy and the service rendered
during probation should be considered as experience.
We, therefore, find that Smt.Sayed Samreen possess the
requisite experience, as she continued to hold the post since 2016.
64. As far as Respondent No.5 Vaishali Thorat, is concerned, the
objection raised in the Petition is about her EWS certificate and
similar is the objection in respect of Respondent No.6, which we
have already dealt with in WP No.16761 of 2023 and have found
their eligibility for EWS to be doubtful based on basis of Form
No.16, which was procured by the Petitioner in the said writ
petition and perused by us.
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65. There being no substance in the petition objecting to the
inclusion of respondent no.4 to respondent no.6 in the list, it is
dismissed.
(IV) WRIT PETITION No.963 of 2024
66. This petition is filed by Anup Dure, the respondent no.8 in
WP No.16761 of 2023, a petition filed by Anirudha Kulkarni, who
has alleged that Anup Dure, the respondent no.8 is not eligible to
avail the benefit of EWS category.
67. We have heard learned counsel Mr. Naidu, for the petitioner
before us. According to him, there is no prayer for cancellation of
his EWS certificate in Mr. Desai's petition and it is urged by him
that he has gone through two tire of appeals, where his EWS
certificate has been upheld.
While deciding the petition filed by Anirudh Kulkarni, WP
No.16761 of 2023, above we have already recorded that the
certificate of EWS in favour of Anup Dure, which is restored by the
Collector, do not warrant any interference at the instance of the
candidate, who has secured less marks.
68. In the present Writ Petition a prayer is made to quash
selection of respondent nos.4 to 9 and hold them to be ineligible
for being appointed for the post of Assistant Commissioner and
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prepare the revised list after their exclusion.
As far as the petitioner is concerned, his EWS certificate has
been restored to him by the Additional Collector, when the order
of the SDM was set aside and this order is not challenged by
anyone. The petitioner is a contender of a post reserved for EWS.
In the petition Smt. Sayed Samreen, Smt. Vaishali Thorat, Shri.
Suresh Shivaji Patil, Shri. Swapnil Patil, Smt. Jyotsana Jadhav
and Smt. Priyanak Pralhad Tonge are impleaded as respondent
nos.4 to 9, and it is alleged that they have been wrongfully
selected, and as far as twofold challenge is raised to their
selection, firstly on the ground that they do not have
administrative, executive or supervisory experience as
contemplated in terms of Clause 3.4.4 of the advertisement and
their annual income is beyond Rupees Eight lakhs.
As far as the second part about their eligibility to hold EWS
certificate, we have pronounced upon the same in Writ Petition
No.16761 of 2023, in the petition filed by Anirudh Kulkarni, who
had also impleaded Vaishali Thorat, Suresh Patil, Swapnil Patil
and Jyotsana Jadhav as respondents. Anup Dure was impleaded
as respondent no.8 and we have found the issuance of EWS
certificate by the Tehsildar in favour of respondent no.5 Vaishali
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Thorat, respondent no.6 Suresh Patil, respondent no.7 Swapnil
Patil and respondent no.9 Jyotsana Jadhav to be not compliant
with the Government Resolution since the income reflected in the
certificate clearly contradicted the income of these candidates
shown in form no.16, a statutory form. Therefore, we need not
again delve into this challenge qua the respondent nos.4 to 8. As
far as Priyanka Tonge is concerned, her EWS certificate is already
cancelled and challenge against her is, that her annual income is
beyond Rs. 8 lakkhs, the challenge do not survive.
69. As far as the eligibility criteria based on Educational
qualification and experience is concerned, we shall deal with the
rival contentions qua each of the respondent.
As far as Samreen Sayed is concerned, it is alleged by the
petitioner that she was holding the post of ARTO, which is purely
a technical post and she do not satisfy the criteria of having
administrative/executive/supervisory experience.
The respondent no.4 has denied this contention by filing an
affidavit and she has placed on record a copy of her service book
indicating that she was selected and appointed in the pay-band of
Rs. 9300-34800, with grade pay of Rs.4600 and she joined the
said post on 2/05/2016. Except making a bald allegation that the
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post of ARTO is a technical post will not suffice for the petitioner
as the burden lies on the petitioner to establish that respondent
no.4 do not exercise administrative functions. In common
parlance an Assistant RTO, which is a significant post in the
Regional Transport Officer, which implements the provisions of
the Motor Vehicle Act, and the Rules thereunder, calling for
discharge of statutory functions and this includes a supervisory
duty in inspecting the vehicles, grant of its registration and
therefore it cannot be said to be a mere technical authority. We
are therefore not satisfied with the contention of the Petitioner
that the duty discharged by Samreen Sayed is purely technical.
70. In respect of Suresh Patil and Swapnil Patil, the objection
raised in the petition is that they were working as Sub-Engineer
on the establishment of MCGM, which is not a responsible post
with administrative, executive or supervisory duties and is
merely a technical post.
We have already dealt with the said issue with reference to
the specific stand adopted by the MCGM about the post of Sub-
Engineer and that in the previous past the candidates working as
Sub-Engineer have been held eligible for promotion to the post of
Assistant Commissioner, and therefore we find no merit in the
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said contention.
As far as Vaishali Thorat respondent no.5 is concerned,
objection is only raised in respect of her categorization as
belonging to economically weaker section and when on being
declared ineligible, when she approached this Court by filing WP
No.1245 of 2023, claiming that the advertisement issued was not
in consonance with the Government Resolution dated
12/02/2019, as EWS certificate may be valid upto 6 months from
the date of application pursuant to the advertisement and she
obtained EWS certificate on 3/12/2021, and there was no option
to upload the EWS certificate, her application was valid. An
argument was also canvassed that a distinction be made between
non-creamy layer certificate and EWS certificate. The petition was
heard and by recording that the petitioner has applied for a
responsible post should not fill up false information, her petition
was dismissed, by declaring that she must be armed with an EWS
certificate if she claims the seat falling within the said category.
71. As far as Jyotsana Jadhav is concerned, who is working as
Food Inspector in the Food and Drug Administration Department,
the objection raised is also about her income and though it is
pleaded that she do not satisfy educational qualification
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prescribed under clause 3.4.4 of the advertisement, no material is
brought on record by the petitioner to establish that she do not
possess the educational qualification and as far as the objection
about her eligibility to hold EWS certificate is concerned, we have
already rendered a finding in WP No.16761 of 2023.
72. In the wake of the aforesaid discussion, we do not find merit
in the submission of the petitioner, as regards the objection raised
in respect of respondent nos.4 to 8, on the ground that they do not
possess requisite administrative, supervisory or executive
experience for that they are not entitled to claim EWS category.
Hence, Writ Petition is dismissed.
IV) WRIT PETITION NO. 6531/2024
73. Challenging the communication dated 12/10/2022 issued by
MPSC, stating that Vaishali Thorat was recommended for the
post, Smt.Priyanka Tonge had filed the Petition alleging that she is
not eligible to be selected.
We have heard Advocate Ashish Gaikwad for the
petitioner who is aggrieved by the decision of the MPSC as regards
respondent no.5, who was initially declared ineligible, but
thereafter she was found to be eligible. The petitioner, compete
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herself from EWS category, but we are informed that her own
certificate is cancelled and there is no challenge to the
cancellation of the EWS Certificate, making her ineligible to
compete from EWS female category.
In the light of the above, we are not inclined to examine her
challenge raised to the candidature of respondent nos.4 and 5
who also claim to be in possession of EWS Certificate. Petition is
dismissed.
D) CATEGORY IV
Non completion of five years experience
I) Civil WP No.3893 of 2024 a/w (Ordinary Original Civil
Jurisdiction) WP No.1488 of 2024
74. The aforesaid two writ petitions filed by Rohit Shriram Phad
and Yogesh Annasaheb Kendre respectively, has called in question
the inclusion of respondent no.3 Vijay Trimbak Palve in the
General (Provisional list) published by MPSC.
Rohit Phad, petitioner in WP 3893 of 2024 is placed in
general merit list at serial no.12 and whereas the respondent no.3
has secured ranking no.4 in NT-D category. If Vijay Palve is not
found to be eligible, the petitioner Rohit Phad may take the seat
reserved for NT-D category. As far as the other petitioner, Yogesh
Kendre is concerned, he is placed at general merit list rank no. 5,
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represented by learned senior counsel Mr. Bandiwadekar, is also a
contender from NT-D category and he was declared as non-
eligible, but he filed a writ petition challenging the decision of
MPSC and by way of interim order passed in Writ Petition (L)
No.22847 of 2023, he was permitted to participate in the
interview process, but the result of interview is directed to be kept
in sealed cover.
As a consequence, the results were kept in sealed but
opened by MPSC, pursuant to the permission sought, but he was
not found to have secure qualifying marks to be included in the
categorywise merit list. The petitioner therefore now contend
that though his name was appearing at serial no.5, he is not likely
to be considered for the post, reserved for NT (D) category and
therefore, even he is aggrieved by inclusion of name of respondent
no.3 in the select list for a post reserved for NTD category.
75. The objection as regards respondent no.3 is to the effect that
he appeared for Indian Forest Service through UPSC in the year
2014, and on 28/12/2015, he joined as Indian Forest Service
Officer. He was sent to the Indira Gandhi National Forest Academy
for 16 months mandatory induction training program, which
according to the petitioner was a classroom training program at
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Dehradun, which information is collated by the petitioner through
RTI.
The counsel for petitioners Mr. Abhijeet Desai and Mr.
Bandiwadekar, representing the petitioners, have relied upon the
daywise training calender received from Indira Gandhi National
Forest Academy, Dehradun, which cover the following phases:-
(i) classroom coaching for various subjects,
(ii) study tours/hill tours,
(iii) academey games,
(iv) Ministerial Conferences,
(v) Examination
(vi) weapon training
(vii) Sports meet etc
76. As far as respondent no.3 is concerned, extension of joining
time was granted for 477 days as per the gazette published by
Government of Assam on 5/10/2022. The probation period was
completed by respondent no.3 on 27/12/2017, and he was
confirmed in IFS cadre on 28/12/2017.
It is thus contended that the total experience shown by
respondent no.3 as on 28/12/2015 to 26/07/2021 of 5 years 7
months and 29 days include the training period and also
extension of joining period.
77. In support of the contention raised on behalf of Rohit Phad,
Mr. Desai has placed reliance upon the Gazette of India dated
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23/11/2023, which has set out the nature of the training and the
curriculum of 20 months, which include 13 months curriculum of
teaching 4 months curriculum of internship/job training and
again 3 months academy training. A copy of the Gazette
notification published by the department of personnel and trainee
has categorically set out the training format content and
curriculum and this include 16 months of curriculum component
at academy and 4 months of internship/ on the job training in
cadre, States and Union Territory. The notification specifically set
out that the curriculum framework of training may comprise of
core elective courses as set out in the schedule and the details
syllabus, contents and inputs in the course shall be determined by
the director for each batch at the commencement of the training
program. What is most relevant to note is the following statement
in the said notification:-
"5. The training inputs and engagements shall consist of
theoretical and practical studies, exercises, hands on
learning, tours, excursions, internship or attachments
related to the prescribed areas and shall be dealt with in
the 4 course, elective course and project and courses of
independent studies or other similar academic or training
module as may be determined by the Director on the
recommendation of the Academic council".
78. The notification also contemplate that every probationer
shall be evaluated during training through written and practical
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examination, assignment and project work, qualifying test and
internal assessment, which shall be held at the academy. The final
evaluation of performance in terms of the marks is also
specifically set out with reference to core courses in the subject
area and the exercises, tours, and excursions as well as the
internal assessment of 250 marks awarded by the academy based
on general discipline and personality development during the
training in Phase- I A and II and evaluated as per the standards
determined by the academy. It is pertinent to note that
attendance in the training program is mandatory as it is
prescribed that every probationer shall attend and participate in
all components of training program and all assessment tests and
examinations for evaluation as specified and attend such non-
evaluated training items as may be decided by the Director. It is
imperative for every probationer to obtain a minimum 50% of
marks in assessment or written and practical examination in the
courses of studies, exercises and tours.
79. Relying upon the said notification, it is the contention
advanced on behalf of the petitioners, as against the common
respondent Mr. Vijay Trimbak Palve, that the period undergone by
him in the academy is not from 20/12/2015 to 27/12/2017, though
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described as probation period was infact a training period, which
could not be counted as an experience, which is contemplated for
the post which is advertised and for the petitioners and the
respondents are competing.
Our attention is also invited to the Indian Forest Service
(Probation) (Amendment), Rules, 2009, when sub-rule 3 is
substituted by prescribing as below:-
"(3) A Probationer referred to in sub-rule (3) of rule (3), shall,
within the period of probation or the extended period of probation, as
the case may be, undergo such training in the Academy or in the State
Training Institutions or in any other recognized training institution in
the country for such period as the Central Government may consider
necessary:
Provided that where a probationer does not undergo such
training within the period of probation or the extended period of
probation, as the case may be, he shall be reverted to his substantive
post in the State Forest Service"
80. The notification dated 22/06/2021, issued confirming the
appointment of 48 RR IFS Officers of 2015 batch in the Indian
Forest Service, 2015 batch in the Indian Forest Service, reflect
their confirmation from the date set out therein and as far as
Vijay Palve, who is placed at serial No.29, his date of joining in IFS
is reflected as 28/12/2015 and the date of completion of 2 years
probation is shown as 27/12/2017, and his date of confirmation is
reflected as 28/12/2015.
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81. As far as the requirement in the advertisement for the
experience criteria is concerned, it is expected that an incumbent
should have worked on the said post and discharge
administrative, executive/supervisory duties and training, where
the candidate was in learning process and not assigned with any
duties nonetheless executive, supervisory or administrative
duties definitely cannot be held to have gained experience.
We had already referred to the decision of Delhi High Court
in case of FSI vs. Manoj Kumar, as well as the decision of the
Chandigarh High Court, which has been upheld by the Apex
Court, where this very issued has been decided and in the earlier
Writ Petition No.16764 of 2023, filed by Bhagwat Panzade, we
have already deliberated upon this issue.
In the wake of the above, since we are satisfied that the
respondent no.3 Vijay Palve in both cases, do not satisfy the
criteria of experience as prescribed in clause no.3.4.1, since the
period of his training cannot be computed as experience gained
and falling short of the experience of 5 years, he do not deserve
consideration for recommendation for the post advertised, the
petitions are therefore, allowed.
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As far as Writ Petition Nos.3893/2024 and WP 1488/2024,
as the petitioner Rohit Phad and Yogesh Kendre are concerned,
who claim the post of NT-D category, obviously, while making the
choice, MPSC shall consider the candidature of the candidate,
who has secured higher mark, and we leave it to the best
discretion of the MPSC to consider their candidature.
82. This Petition is filed by Vaishali Thorat, where she has
raised a challenge to clause 2 (C) 2 of GR dated 12/02/2019, and
in the petition she has sought the following relief:-
"(i) To hold and declare the same is bad in law,
unconstitutional, ultra vires to extend of impugned clause
2(C) (2) G.R. dtd 12.02.2019 regarding EWS.
(ii) To direct the respondents to modify alter amend the
impugned clause 2 (C) (2) of the G.R. dtd 12.02.2019
regarding EWS and thereby make equal provisions for the
terms, conditions and definition of the "Family" and the
"Income Criteria" reserved for E.W.S. Women category as like
and treat to them at par the Women from category other
Backward Class such as OBC, VJ(NT), NT (D) and changes
made time to time as all women are socially, educationally and
economically backward."
83. In the wake of the aforesaid relief in the petition, since it will
have to be dealt with upon consideration of the stand of the
respondent nos.1 to 4 and in specific the resolution of EWS issued
J-WP-12074-23&connected.doc
by General Administration Department, we deem it appropriate to
segregate the petition from the group of petition and direct it to be
listed after 8 weeks.
84. In the wake of the aforesaid, we direct MPSC to finalise the
select list prepared by it and make the recommendation for
appointment to the post of Assistant Commissioner (Group A) on
the establishment of MCGM, within a period of four weeks from
uploading of this Judgment.
(ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)
