[Cites 7, Cited by 0]
Bombay High Court
Asif Mustafa Dange And Others vs Yogesh Balkrishna Sarkate And Others on 17 March, 2026
2026:BHC-AUG:11520-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.15066 OF 2023
(WITH CIVIL APPLICATION NO.3601 OF 2025
IN WRIT PETITION NO.15066 OF 2023
CIVIL APPLICATION NO.11811 OF 2024
IN WRIT PETITION NO.15066 OF 2023
CIVIL APPLICATION NO.5415 OF 2024
IN WRIT PETITION NO.15066 OF 2023)
.....
1. Yogesh Balkrishna Sarkate
Age: 30 years, Occu: Unemployed,
R/o. S/o. Balkrisha Sarakate at post,
Talni Taluka, Mantha, Talni, Jalna
2. Pratisksha Ashok Narale
Age: 22 years, Occu: Unemployed,
R/o. D/o. Ashok Narale, Mukkm,
Laxminagar, Achadani, Solapur,
Achakdani-413306 ... Petitioners
Versus
1. The State of Maharashtra,
through its Principal Secretary,
Ministry of Energy, Mantralaya,
Madam Kama Road, Mumbai
2. Maharashtra State Power Generation
Company Ltd, Through its Chairman
& Managing Director, Head Office
Prakashgadh, Bandra East, Mumbai
3. Maharashtra State Power Generation
Company Ltd, Through its Executive
Director (HR), Head Office Prakashgadh,
Bandra East, Mumbai
4. Amit Ashok Chalak
5. Sonali Shahaji Patil
6. Asif Dange
7. Nikhil Rameshrao Wagh ... Respondents
.....
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Shri. P. P. Shahane, Advocate for the Petitioners.
Shri. A. V. Lavte, AGP for the Respondent NO.1
Shri. H. S. Adwant Advocate a/w. Shir. S. V. Adwant, Advocate for
Respondent Nos.2 and 3
Shri. A. M. Reddy, Advocate for Respondent No.5
Ms. Akshara S. Madake, Advocate for Respondent Nos.6 and 7
.....
CORAM : ARUN R. PEDNEKER AND
VAISHALI PATIL-JADHAV, JJ.
DATED : MARCH 17, 2026
JUDGMENT (Per VAISHALI PATIL-JADHAV, J.) :
-
. Rule. Rule made returnable forthwith and heard finally with
the consent of the parties.
2. By this Petition, the petitioners are seeking selection and
appointment on the basis of the terms and conditions of the
advertisement No.01/2023, issued by respondent No.2. The petitioners
further challenge the selection process under Advertisement No.01/2023
in view of change in the condition of Selection Process after the
Advertisement from selection on the basis of 'SCORE OBTAINED' to
'WEIGHTAGE', which in turn resulted in selection of those who scored
less than the petitioners, thus violating their right to seek appointment
under the advertisement.
Facts giving rise to the present writ petition can be briefly stated as
under : -
3. Respondent No.2 - Maharashtra State Power Generation
Company Ltd. published Advertisement No.01/2023 for the post of
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Junior Officer (Security) and Junior Officer (Security) (Departmental
"Watchman" candidates) in Pay Group III in February 2023. As per the
said advertisement, the selection process consisted of an Online Test
followed by Physical Efficiency Test and Psychometric Test. The entire
examination process was to be evaluated on a score basis wherein, 120
marks were allotted for Online examination and 40 marks were allotted
for Physical Efficiency Test and Psychometric Test. Three posts were
reserved for EWS Category and 14 posts were to be filled from the Open
category. Petitioner No.1 applied under EWS category and petitioner
No.2 applied under the open category for the advertised post.
4. Petitioner No.1 secured 96 marks in online examination and
37 marks in Physical Efficiency Test and Psychometric Test, thereby
securing a total of 133 marks, and appeared in merit list of the open
category. Petitioner No.2 secured 74 marks in Online examination and
34 marks in Physical Efficiency Test and Psychometric Test, thereby
securing a total of 108 marks, and appeared in merit list of the open
category. Petitioner No.1 was shortlisted at serial No.20 and petitioner
No.2 at Serial No.21 in the Open category.
5. Thereafter, Respondent Nos.2 and 3 published the select list
on the basis of weightage given to the scores obtained in online
examination by applying 50% weightage and 50% weightage was given
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to the Physical Efficiency Test and Psychometric Test. Thus, application
of 50% weightage to the two different tests created change in the merit
position and the petitioners were placed on the wait list, whereas,
Respondent Nos.4 to 7 were selected. The following comparative chart
would indicate the position.
Particulars Name Test PET Total 50 % 50 % Total
Out of Out of Score of A of B Out of
(120) (40) (160) 100%
A B A+B A+B
Petitioner Yogesh Balkrishna 96 37 133 40 46.25 86.25
No.1 Sarkate
Petitioner Pratiksha Ashok Narale 74 34 108 30.83 42.50 73.33
No.2 (Open Women Category)
Respondent Amit Ashok Chalak 92 40 132 38.33 50 88.33
No.4
Respondent Sonal Shahaji Patil 68 37 105 28.33 46.25 74.58
No.5 (Open Women Category)
Respondent Asif Dange 92 40 132 38.33 50 88.33
No.6
Respondent Nikhil Ramrao Wagh 88 40 128 36.67 50 86.67
No.7
6. Respondent Nos.4 to 7 are selected over the petitioners,
although they had scored less total marks than the petitioners. It is
stated that the petitioners made various representations to the
respondent Nos.2 and 3 to consider that their selection process is illegal
and against the conditions prescribed in the advertisement. However,
Respondent Nos.2 and 3 failed to correct the select list. As such, the
present writ petition is filed challenging the selection process and
seeking a direction to appoint the petitioners, as they have secured
higher marks and are more meritorious.
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7. Learned Counsel Shri. P. P. Shahane submitted that the
primary challenge in the petition is that the recruitment process ought to
have been completed strictly in accordance with the terms and
conditions as stipulated in the advertisement No.1/2023 and the
existing rules. It is also submitted that, once the process has
commenced, it cannot be altered as it was nowhere stated in the
advertisement that 50% weightage would be given to the Physical
Efficiency Test & 50% for the Online Examination.
8. Learned Counsel Mr. P. P. Shahane relied on the judgment of
Hon'ble Supreme Court in the case of Ramjit Singh Kardam vs. Sanjeev
Kumar and Ors, reported in [(2020) 20 SCC 209], wherein the Hon'ble
Supreme Court has observed that, 'the change in criteria of selection
process keeping the candidates in total dark till the results are published
is arbitrary' . The learned counsel has also relied upon the judgment in
the case of Tej Prakash Pathak Vs. Rajasthan High Court [AIR Online
2024 SC 747 ] to contend that eligibility criteria for being placed in the
select list notified at the commencement of the recruitment process
cannot be changed midway of the recruitment process. The learned
Counsel has also relied upon the order passed by the Hon'ble Supreme
Court in Civil Appeal No. 10932/2025 in the case of J and K Service
Selection Board and anr. Vs. Sudesh Kumar and others decided on
26/11/2025 wherein the Court relying on Tej Prakash Pathak (supra)
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held that there cannot be a change in selection criteria after completion
of selection process. Therein, the evaluation procedure was altered after
the interviews were over and candidates had completed their
participation in the selection process.
9. Per contra, Mr. H. S. Adwant, learned counsel for
Respondent Nos. 2 and 3 would submit that they have not changed the
selection process in the midway. The submissions are reproduced as
below :-
"1. It is required to be appreciated that the recruitment process
operates in two spheres, that are mutually co-extensive
with each other:
a. On one hand, conduct of examinations / tests, as
prescribed in the Advertisement, and the marking
system adopted therein;
b. On the other hand, the evaluation of the relative
fitness and merit of the candidates and the
selection of the candidates in accordance with such
evaluation.
2. The introduction of the 'weightage metric' has been
employed at the time of release of the Select List and Wait List only
after the marks obtained in the examinations / tests were available
to MSPGCL, in order to evaluate and assess the merit of the
candidates. It could not have been done at the stage of
Advertisement.
This is exactly why Clause 1, Page 20, Clause 3, Page 22 and Clause
17, Page 22 read with Clauses 20, 21, Page 23 have been inserted
in the Advertisement.
3. MSPGCL has set out all the requisite terms and conditions
in the Advertisement. There is no change in the rules of the game
after the initiation of the recruitment process. Any modification or
alteration of the conduct of the recruitment process, is within the
terms and conditions of the Advertisement and the vested
authority, power and jurisdiction to evaluate and assess the merit
of the candidates in the recruitment process and select the best
talent available from the pool of eligible candidates."
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10. From the above noted submissions, it appears that the
contention of the respondents is that, once the marks are obtained,
thereafter, weightage is applied at the time of releasing of the select list
and wait list in order to evaluate and assess the merit of the candidates
and it could not have been done at the stage of publication of
advertisement. It is submitted that the advertisement itself provides for
the same. It is further stated that there is no change in the rules of the
game after commencement of the recruitment process. Any modification
or alteration of the conduct of the recruitment process is within the
terms and conditions of the advertisement and within the vested
authority, power and jurisdiction of the recruiting body to evaluate and
assess the best talent available from the pool of eligible candidates.
In this regard, he has particularly placed reliance upon
Clauses 1, 3, 12, 15, 17 read with Clauses 20 and 21 of the
advertisement.
11. Having considered the rival submissions, issues that arise
for consideration are :-
(A) Whether, after the candidates have obtained their marks, the
respondents could have applied the weightage criteria upon the
candidates after clearance of the Online test and Physical
Efficiency Test and Psychometric Test ?
(B) Whether the advertisement specifically provides for such a right
(application of weightage after the entire test) to the respondents
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and, if such a right is provided, whether the same would be
arbitrary ?
12. For ready reference, the relevant clauses of the
Advertisement are noted as under :-
"MAHAGENCO
MAHARASHTRA STATE POWER GENERATION COMPANY LTD.
For the company with manpower strength more than 11000 and potential for
further growth, we are looking for high caliber individuals for the following position:
Post Name of Post Pay CATEGORYWISE RESERVATION
Code Gr.
SC ST VJ-A NT-C NT-D OBC EWS OPEN TOTAL
HR01 Jr. Officer III 02 04 02 02 01 01 03 14 29
(Security) (WR01) (WR01 (WR01) (WR01) (WR01 (WR04 (WR09
ES01) ) ES02 ES03
PAP01 PAP01
SP01) SP01)
HR01 Jr. Officer III - 01 - - - - - 04 05
(Security) (WR01 (WR01
Departmental ES01) ES01)
"Watchman"
Candidates
(15%)
.......
.......
Last date for Submission of application is 17.02.2023
Qualification and Experience as on 17.02.2023:
Post Qualification Experience
Code Name of post
HR01 Jr.Officer (Security) 1) Degree of a No experience required.
Pay Gr. - III recognized University.
Rs. 37340-1675-45715- 2) Knowledge of Remarks:- Candidates will be shortlisted
1740- Marathi is essential. subject to their performance in written
63115-1830-103375 and outdoor practical / physical
efficiency test & Psychometric Test (PET).
Must be physically fit as per "Accepted
Norms" of the Security Services as below:
Male
a. Height - Minimum 165 cms
without footwear
b. 'Chest-Normal- Minimum 81 cms &
expanded - minimum86 cms
c. Weight- Minimum 50 Kgs.
d. Vision-6/6 without warding glass or
without any aid.
Female
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a. Height - Minimum 157 cms.
without footwear.
b. Weight - Minimum 45 Kgs.
c. Vision- 6/6 without wearing glass
or without any aid.
Night or color blindness as well as any kind of physical disability /
deformity shall be disqualification.
...........
...........
Important Conditions about Selection Process
1. Prescribed qualification / experience are minimum criteria and mere possession of
the same, does not entitle the candidate to be called for Online Examination. The
candidates will be short listed for by applying suitable criteria.
2. The candidates who are apparently eligible as per age and educational criteria
shall be called for Online Exam / Physical efficiency Test & Psychometric Test without
verifying their other eligibility criteria.
3. The number of vacancies and reservation for backward classes indicated for
different categories is provisional and likely to change. Such change will not be
notified in Newspaper nor will be intimated to the candidates.
4. All the candidates registered successfully through online process will be called for
online test irrespective of eligibility criteria.
5. Candidates applying for the posts advertised should ensure that they fulfill all
eligibility criteria. Their admission at all stages of the recruitment process will be
purely provisional subject to satisfying the prescribed eligibility criteria mentioned in
this advertisement. Company will take up verification of eligibility conditions with
reference to original documents.
6. Those reserved category candidates who compete with the Open category
candidates will be treated as Open category candidate for the purpose of entire
process of recruitment.
7. The Online Examination will be tentatively conducted in the month of March-
2023.
8. The selection process for the above post will include the following: -
a) Online test with by Physical efficiency test & Pshychometric Test.
b) Candidates shortlisted as per performance in written test should be required
to undergo the Physical Efficiency test & Pshychometric Test.
c) Fitness certificate & Indemity Bond to be submitted by candidates shortlisted
through written test and appearing for Physical Efficiency test &
Pshychometric Test.
d) Candidates should undergo the Physical Efficiency test at their own risk.
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e) Shortlisted Candidates have to bring along fitness certificate from a medical
practitioner to undergo the Physical efficiency test.
f) Candidate must Pass all the tests mentioned in the Physical Efficiency
Test & Pshychometric Test and the score obtained by the candidates will be
considered along with Online score for preparing merit.
9. Online test may be conducted as per Exam center list depending upon the
number of candidates at each location. However, in case candidates appearing for the
online test at a particular place are not adequate, such candidates may be asked to
appear for the test at other center. The management reserves right to increase or
decrease the location for test.
10. If the number of applicants are large, then a suitable criteria will be fixed to
short list the applicants for online test.
11. If the number of candidates at any of the centers is more than the capacity of
the Centre for Online Test / Examination, the candidates may be shifted to any other
Center/s as per the decision of the Company.
12. The Backward Category candidate must secure at least 20% marks of total
marks & Open category candidates must secure at least 30% of marks of total marks
to consider for selection process.
13. The notification regarding recruitment process will be published on the
Company's website i.e. www.mahagenco.in from time to time.
14. The Company also reserves right to allot the candidates to any center other
than the one he / she has opted for, for any other reason.
15. Candidate will have to appear for Online Test at Examination Centre at his /
her own cost & risk and MAHAGENCO will not be held responsible for any injury or
losses, etc. of any nature.
16. The documents & records pertaining to the above selection process will be
kept only upto 3 months after completion of the selection process.
17. Taking into consideration the performance in the Online test, Physical
Efficiency Test & Psychometric Test the select list will be prepared.
18. Canvassing in any form will disqualify the candidate."
13. From the above-noted clauses of the advertisement, it is
seen that the candidates were to be shortlisted subject to their
performance in written and ongoing Practical/Physical Efficiency Test
and Psychometric Test.
Clause (1) of the important conditions about selection
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process provides that the prescribed qualification/ experience are
minimum criteria and mere possession of the same, does not entitle the
candidate to be called for online examination.
Clause (8) of the important conditions about selection
process provides that the selection process for the post will include
online test with Physical Efficiency Test and Psychometric Test. The
candidates shortlisted as per performance in written test should be
required to undergo Physical Efficiency Test and Psychometric Test. The
candidates must pass all the test mentioned in the Physical Efficiency
Test and Psychometric Test and the score obtained by the candidates will
be considered along with online score for preparing merit.
Clause (17) states that select list will be prepared taking
into consideration the performance in the Online test, Physical Efficiency
Test and Psychometric Test.
Online test consisted of 120 marks and Physical Efficiency
Test & Psychometric Test consisted of 40 marks, total 160 marks.
Clause 21 of the General Conditions provides that the
company reserves the right to modify or cancel the advertisement/
selection process, fully or partly on any grounds and such decision of the
company will not be notified or intimated to the candidates.
14. From perusal of the above clauses of the advertisement, it is
seen that there is no clause providing for 50 % weightage to the Online
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Test as well as 50 % weightage for the Physical Efficiency Test and
Psychometric test. The marks apportioned are 120 for Online Test and
40 for the Physical Efficiency Test . It is undisputed position that if the
"weightage" is not applied then the petitioners would automatically
stand selected, whereas respondent nos.5 and 7 having secured lesser
marks would be out of the select list.
The question before this Court is whether the respondents
could have applied weightage criteria of 50% from the available
candidates after having secured marks in Online examination and
Physical Efficiency Test when the advertisement does not indicate 50%
weightage criteria.
15. To our mind, the same is not available to the respondent
authorities as it clearly gives discretion in their hands to change the
selection criteria and thereby, applying different weightage points for the
different categories which can change the final outcome of the selection
list. Such a discretion cannot be vested in the respondent authorities
which is the State. The discretion becomes arbitrary. The marks system
allotted in the terms of the advertisement will have to be taken into
consideration while considering the selection list. The weightage criteria
adopted after the online examination would bring about a change in the
selection criteria. It cannot be accepted that such a discretion is available
with the respondent authorities.
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16. The Constitution Bench of Hon'ble Supreme Court in the
case of Tej Prakash Pathak (supra) has observed that recruitment process
begins from the issuance of the advertisement and ends with the filling
up of the notified vacancies. It consists of various steps like inviting
applications, scrutiny of applications, rejection of defective applications
or elimination of ineligible candidates, conducting examinations, calling
for interview or viva-voce and preparation of list of successful
candidates for appointment. The doctrine proscribing change of rules
midway through the game, or after the game is played, is predicated on
the rule against arbitrariness enshrined in Article 14 of the Constitution.
Article 16 is only an instance of the application of the concept of
equality enshrined in Article 14. In other words, Article 14 is the genus
while Article 16 is a species. Article 16 gives effect to the concept of
equality in all matters relating to public employment. These two articles
strike at arbitrariness in State action and ensure fairness and equality of
treatment. They require that State action must be based on valid
relevant principles alike to all similarly situate and not to be guided by
any extraneous or irrelevant considerations. In all its actions, the State is
bound to act fairly, in a transparent manner. This is an elementary
requirement of the guarantee against arbitrary State action which Article
14 of the Constitution adopts. A deprivation of the entitlement of private
citizens and private business must be proportional to a requirement
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grounded in public interest. Candidates participating in a recruitment
process have legitimate expectation that the process of selection will be
fair and non-arbitrary. The basis of doctrine of legitimate expectation in
public law is founded on the principles of fairness and non-arbitrariness
in government dealings with individuals.
17. The Hon'ble Supreme Court has specifically considered the
discernible ratio in K. Manjushree Vs. State of AP and others,
MANU/SC/0925/2008: (2008) 3 SCC 512, that the criterion for
selection is not to be changed after completion of the selection process,
though in absence of rules to the contrary the Selection Committee may
fix minimum marks either for written examination or for interview for
the purposes of selection. But if such minimum marks are fixed, it must
be done before commencement of selection process. Where the change
was made after the interviews were over, it was observed that the game
was played under the rule that there was no minimum marks for the
interview, therefore introduction of the requirement of minimum marks
for interview, after the entire selection process consisting of written
examination and interview was completed, would amount to changing
the rules of the game after the game was played.
18. Learned Counsel for respondent no.2 and 3 relied on the
judgment in the case of Chief Manager, Punjab National Bank and
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another Vs. Anit Kumar Das [(2021) 12 SCC 80] is of no help to
respondents as the facts in that case were totally different and not
applicable to case in hand. The learned Advocate further relies on the
decision in Writ Petition No.7267/2024 (Sharad Shriram Salunke and
others Vs. The State of Maharashtra and others) dated 07.02.2025. This
judgment is also of no help to the petitioner as in this case, the
minimum bench mark was introduced vide circular dated 17.04.2023
and circular was uploaded on 17.04.2023 and it was much before the
scheduled exam, which was on 04.05.2023. As such, the candidates
were having knowledge about the newly introduced minimum bench
mark, hence the Court held that rule of the game was not changed.
19. In the instant case, after reading of the advertisement, we
find that there is no clause, which grants discretion to the authorities
to apply the weightage, which would be a detriment to some of the
candidates. The marks allotted to the Online examination is 120 and for
Physical Efficiency Test is 40. By applying weightage after selection list
being published, giving 50% weightage to the Online Examination and
50% weightage to the Physical Efficiency Test, the final tally varies.
Those candidates who have secured higher marks in the Physical
Efficiency Test would gain an advantage over those who have obtained
higher marks in the Online examination. This is not the criteria fixed in
the advertisement nor any rule is shown to that effect. The
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advertisement clearly indicates that both online marks and Physical
Efficiency Test marks would be taken up. By applying the weightage,
the final outcome changes and such an application becomes
discretionary. It would not have been arbitrary, if such a weightage was
shown in the advertisement itself. If we permit the weightage to be
applied after the selection list is published, the respondent authorities
can completely change the final selection by applying 80% or 90%
weightage only to the Physical Efficiency Test. In the instant case, by
applying 50% also they are being able to change the final outcome at
least to the extent of the present petitioners.
20. Considering the same, we hold that,
(a) The advertisement did not provide for application of
unspecified weightage to different categories and only
the total marks were to be taken into consideration for
both the categories.
(b) No such weightage could have been applied by the
respondents authorities after the selection process
commenced.
21. Considering the same, the Petitioners be selected and
appointment orders be issued to them in terms of the advertisement as
they have secured total marks more than the respondents.
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22. Rule is made absolute in above terms. The writ petition
stands disposed of accordingly.
23. In view of disposal of writ petition, the pending Civil
Applications also stand disposed of.
(VAISHALI PATIL-JADHAV, J.) ( ARUN R. PEDNEKER, J. )
sga
