Madhya Pradesh High Court
Secretary Madhya Pradesh Public ... vs Nilesh Lokhande on 20 May, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
(1) W.A. Nos. 1685/2022 & 1425/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 20th OF MAY, 2024
WRIT APPEAL No.1685 Of 2022
BETWEEN :-
RISHI PATHAK S/O SHRI RAMVILAS
PATHAK, AGE - 38 YEARS, OCCUPATION -
GOVERNMENT SERVICE, R/O MX-78, E-7,
EXTENSION, ARERA COLONY, BHOPAL
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRASHANT SHARMA - ADVOCATE )
AND
1. NILESH LOKHANDE, S/O SHRI
JANARDAN LOKHANDE, AGE - 40
YEARS, OCCUPATION - SERVICE,
R/O 14, PREM NAGAR, GWALIOR
(MADHYA PRADESH)
2. MADHYA PRADESH PUBLIC
SERVICE COMMISSION,
RESIDENCY AREA, INDORE
THROUGH SECRETARY MADHYA
PRADESH PUBLIC SERVICE
COMISSION RESIDENCY AREAY
INDORE (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH
THROUGH SECRETARY, CULTURE
DEPARTMENT, BHOPAL (MADHYA
PRADESH)
(2) W.A. Nos. 1685/2022 & 1425/2022
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI K.N.GUPTA, SENIOR
ADVOCATE WITH SHRI KAPIL SHARMA, PRAKASH
CHANDRA CHANDIL AND MS. SUHANI DHARIWAL-
ADVOCATES
RESPONDENT NO.2 BY SHRI RAVINDRA DIXIT - ADVOCATE
RESPONDENT NO.3 BY SHRI ANKUR MODY - ADDITIONAL
ADVOCATE GENERAL )
WRIT APPEAL No.1425 Of 2022
BETWEEN :-
SECRETARY MADHYA PRADESH PUBLIC
SERVICE COMMISSION, R/O - MPPSC
RESIDENCY, AREA INDORE, DISTRICT
INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAVINDRA DIXIT- ADVOCATE )
AND
1. NILESH LOKHANDE, S/O SHRI
JANARDAN LOKHANDE, AGE - 40
YEARS, OCCUPATION - SERVICE,
R/O 14, PREM NAGAR, GWALIOR
(MADHYA PRADESH) (PETITIONER)
2. STATE OF MADHYA PRADESH
THROUGH SECRETARY, R/O
CULTURE DEPARTMENT, BHOPAL
(MADHYA PRADESH)
3. RISHI PATHAK S/O SHRI RAVILAS
PATHAK R/O MX-78, E-7,
EXTENSION, ARERA COLONY,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(3) W.A. Nos. 1685/2022 & 1425/2022
(RESPONDENT NO.1 BY SHRI K.N.GUPTA, SENIOR
ADVOCATE WITH SHRI KAPIL SHARMA, PRAKASH
CHANDRA CHANDIL AND MS. SUHANI DHARIWAL-
ADVOCATES
RESPONDENT NO.2 BY SHRI ANKUR MODY - ADDITIONAL
ADVOCATE GENERAL
RESPONDENT NO.3 BY SHRI PRASHANT SHARMA -
ADVOCATE )
--------------------------------------------------------------------------
These appeals coming on for admission on this day,
Justice Vivek Rusia passed the following:
ORDER
1. These two appeals are filed challenging the order dated
26/09/2022 passed by the writ Court in W.P. No. 9782/2018,
whereby the appointment of appellant Rishi Pathak to the post
of Scientific Officer has been set aside and a cost of
Rs.50,000/- has been imposed upon the MPPSC.
2. Facts of the case in short are as under :-
(i) MPPSC issued an advertisement for appointment to the
post of Scientific Officer, Archaelolgist and Curator in the
Ministry of Culture, Bhopal. The controversy in this case is
related to the appointment of Scientific Officer for which
under the recruitment Rules, as well as, in advertisement two
(4) W.A. Nos. 1685/2022 & 1425/2022
sets of qualifications are prescribed namely (i) Essential
Qualification and (ii) Desired Qualification. Both are
reproduced below:-
2- oSKkfud vf/kdkjh gsrq
vfuok;Z vgrkZ
'kS{kf.kd
¼d½ jlk;u 'kkLrz esa n~forh; Js.kh esa
LukrdksRrj mikf/k ;k mlds lerqY; dksbZ vU; mikf/k
¼[k½ jk"Vz~h; vfHkys[kkxkj ;k ljdkj ls ekU;rk
izkIr laLFkk esa ls iqjkys[k laj{k.k esa izf'kf{kr
okaNuh; vgrkZ
vfHkys[kkxkj foHkkx esa vfHkys[kksa ds oSKkfud
laj{k.k esa 5 o"kZ dk vuqHko
okaNuh; vgrkZ ls rkRi;Z % izFker% okaNuh; vgZrk
j[kus okys vH;fFkZ;ksa dk p;u fd;k tk,xk A okaNuh;
vgZrk j[kus okys vH;fFkZ;ksa dh vuqiyC/krk gksus ij gh
okaNuh; vgrkZ u j[kus okys vH;fFkZ;ksa ds p;u ij
fopkj fd;k tk,xk A
(ii) In Clause 9 of the advertisement, it is specifically
provided that for one post of Scientific Officer, ten candidates
are to be invited for an interview , the list of which shall be
prepared on the basis of marks scored by the candidate in the
Post Graduate degree which is essential qualifications. It is
also provided that firstly the candidate with essential
qualifications and desirable qualifications will be included and
in the absence of those candidates, the candidate with essential
(5) W.A. Nos. 1685/2022 & 1425/2022
qualifications will be called for interview. The final selection
list will be prepared on the basis of marks scored by all the
candidates in the interview. Rishi Pathak and Nilesh Lokhande
both applied for the post of Scientific Officer on the basis of
their qualifications. Nilesh Lokhande has both essential as well
as desired qualifications and the experience certificate dated
4/9/2017. He was already working as a chemist in the office of
Dy. Director, Archaeology, Regional Office, Gwalior.
Admittedly, Rishi Pathak has only essential qualifications.
However, both were called for the interview scheduled on
20/3/2018. The MPPSC declared the result in which Nilesh
Lokhande secured 59 marks and Rishi Pathak scored 80 marks.
The final merit list was published in which the name of Rishi
Pathak was placed at S.No.1 and the name of Nilesh Pathak
was placed at S.No.1 of the waiting list. The final result was
communicated to the State Government vide correspondence
dated 24/3/2018.
(iii) Nilesh Lokhande filed a writ petition (W.P. No.
9782/2018) challenging his non-selection on the sole ground
that Rishi Pathak could not have been called for an interview
(6) W.A. Nos. 1685/2022 & 1425/2022
as he does not possess desirable qualifications.
(v) During the pendency of the petition, after due character
verification, physical fitness, and document verification, an
appointment letter dated 12/7/2018 was issued in the name of
Rishi Pathak. Notices were issued in the writ petition. Reply,
rejoinder, and additional returns were filed by the parties .
After hearing the parties, the learned Judge passed the
impugned order holding the appointment of Rishi Pathak to be
illegal and directed respondents to consider the case of Nilesh
Lokhande for appointment on the post of Scientific Officer.
The MPPSC has been saddled with the cost of Rs.50,000/- on
account of calling Rishi Pathak for an interview despite he was
not possessing the desirable qualifications.
3. Now, these two writ appeals are filed - one by Rishi
Pathak and another by MPPSC only challenging the cost part
of the order.
4. We have heard learned counsel for the parties.
5. Shri Sharma, learned counsel appearing for the appellant
submits that Rishi Pathak was possessing the essential
qualification and scored 80 marks; much higher than Nilesh
(7) W.A. Nos. 1685/2022 & 1425/2022
Lokhande. The MPPSC is a competent authority with experts
to consider the inter se merit to select a person having essential
qualifications. For the post in question, the essential
qualification ought to have been given weightage over and
above the desirable qualifications. It is further submitted by the
learned counsel that Nilesh Lokhande wrongly challenged the
selection of Rishi Pathak as he himself does not possess
experience for the post in question. He has been working on
the post of chemist and does not have 5 years of experience in
the scientific preservation of archives in the archives section.
Therefore, both the candidates were called on the basis of
essential qualifications not on the basis of desired
qualifications and since appellant Rishi Pathak secured much
higher marks than Nolesh Lokhande, therefore, his name was
rightly recommended for appointment and in fact appointed on
the post of Scientific Officer.
6. Learned counsel appearing for the MPPSC submits that
at the relevant point of time, as per the conditions of the
advertisement, as well as, recruitment rules, both the
candidates possessing essential qualifications, were called but
(8) W.A. Nos. 1685/2022 & 1425/2022
the selection was between only Rishi Pathak and Nilesh
Lokhande hence both were called for interview to assess the
inter se merit. However, later on the opinion of the
Commissioner from the Archaeological Department dated
1/10/2018 was sought clarifying that Rishi Pathak did not even
possess the essential qualification. His Masters Degree in
Engineering Materials cannot be treated as equivalent to the
Master's Degree in Chemistry. Even the writ Court has not
held that Nilesh Lokhande is liable to be appointed but rather
directed the Government to consider his qualifications before
appointing him. Therefore, the cost of Rs.50,000/- has wrongly
been imposed and the same may kindly be waived by allowing
W.A. No.1425/2022.
7. Shri K.N.Gupta, learned Senior Counsel appearing for
Nilesh Lokhande/writ petitioner urges that the language of the
advertisement is very clear and aligns with the recruitment
rules that candidates having essential as well as desirable
qualifications are liable to be appointed to the post of
Scientific Officer. Admittedly Rishi Pathak does not have the
desired qualifications, therefore, he ought not to have been
(9) W.A. Nos. 1685/2022 & 1425/2022
called for even interview for the post in question. Learned
senior counsel further submits that Rishi Pathak does not
possess the essential qualification which is Post Graduate in
Chemistry with minimum second division. He has a Bachelor
in Engineering (BE) and a Master in Technology (Mtech) in
Material and Chemical Science which cannot be equated with
a Post Graduate in Chemistry with a minimum second
division. He also does not have training certificate in chemical
conservation of ancient antiquities from Government-
recognized Institution. Therefore, not only the desired
qualification but Pathak lacks essential qualifications also.
Therefore, his appointment has rightly been annulled by the
writ Court with a cost of Rs.50,000- on the MPPSC, hence the
impugned order is not liable to be interfered with and both writ
appeals be dismissed. Shri Gupta learned senior counsel in
support of his submissions relied on the judgment passed by
Apex Court in the case of Mohd. Sohrab Khan Vs. Aligarh
Muslim University reported in (2009)4 SCC 555 in which
the Apex Court has held that the post of Lecturer in Chemistry
could not have been filled by a person belonging to the subject
(10) W.A. Nos. 1685/2022 & 1425/2022
of Industrial Chemistry when the same having been
specifically not mentioned in the advertisement that the master
degree holder in the said subject would be also suitable for
being considered. Question of equivalency of qualifications for
the post in question is liable to be examined by the selection
agency or the employer. Shri Gupta has also placed reliance on
a judgment passed in case of Maharashtra Public Service
Commission vs Sandeep Shriram Warade reported in
(2019)6 SCC 362 in which the Apex has held that essential
qualification for appointment to a post are for the employer to
decide. The Court cannot lay down the conditions of eligibility
much less can it delve into the issue with regard to desirable
qualification being at par with the essential qualification by an
interpretive re-writing of the advertisement. In case of Zonal
Manager, Bank of India, Zonal Office, Kochi and Others
Vs. Aarya K.Babu and another ((2019)8 SCC 587), the
Apex Court has held that it is not for the Court to read into or
assume and thereby include certain qualifications which have
not been included in the notification by the employer. In case
of Indresh Kumar Mishra and Others Vs. The State of
(11) W.A. Nos. 1685/2022 & 1425/2022
Jharkhand and others ((2022)12 SCC 42), the Apex Court
has the held that the Court of law cannot act as an expert
normally, therefore, whether or not a student/candidate is
possessing the requisite qualification should better be left to
the educational institutions, more particularly, when the Expert
Committee considers the same.
8. We have heard the learned counsel for the parties and
perused the record, as well as, the judgments cited by the
learned counsel for the parties. The qualifications prescribed in
the recruitment rules namely The Madhya Pradesh
Archaeology, Archives and Museums (Gazetted) Service
Recruitment Rules, 1998 and prescribed in the advertisement
for the post in question i.e. Scientific Officer are reproduced
below:
"Archives Section:
(2) Scientific Officer
Minimum age limit - 25 years,
Maximum age limit - 30 years
Compulsory:
(A) Master degree in second division in
Chemistry or its equivalent degree.
(B) Trained in archives conservation & from
any institution recognized by National Archives
of India or the Government
Desirable:
(12) W.A. Nos. 1685/2022 & 1425/2022
Five years experience of scientific
conservation of records in Archives
Department"
As per the advertisement, the candidates should be called first
who have essential as well as desirable qualifications. In the
absence of any candidate possessing desirable qualifications,
the candidates having essential qualifications are liable to be
called for the interview . At the time of submission of his form
admittedly Rishi Pathak declared his essential qualification
only and Nilesh Lokhande applied with both essential as well
as desirable qualification. However, the MPPSC thought it
proper to call both of them for an interview because sometimes
the candidature is liable to be cancelled at the time of
verification of documents. Therefore, nothing wrong has been
done by calling both candidates instead of selecting a sole
candidate on the basis of documents furnished along with the
application form.
9. According to appellant Rishi Pathak, Nilesh Lokhande
does not have the desired qualification i.e. Five years
experience of in scientific conservation of records in the
(13) W.A. Nos. 1685/2022 & 1425/2022
Archives Department. The writ petitioner Nilesh Lokhande an
existing employee of the Department of Archaeology,
submitted an experience certificate, therefore, his experience
certificate was also questionable as he was working as a
Chemist in the department. Therefore, the MPPSC rightly
called both Pathak and Lokhande for an interview, the cost has
wrongly been imposed by the writ court.
10. It is correct that both the candidates Rishi Pathak and
Nilesh Lokhande applied for the post of Scientific Officer.
Admittedly appellant Rishi Pathak possesses essential
qualifications only and Nilesh Lokhande submitted an
application form on the basis of essential qualifications and
desired qualifications. The writ Court has not held that Nilesh
Lokhande possesses both the qualifications and left it open to
the MPPSC or the State Government to examine his
qualifications and thereafter consider for appointment to the
post of Scientific Officer. Therefore, it is up to the respondents
to examine the possession of desired qualification i.e. 5 years
experience in Scientific Preservation before issuing an
appointment order. The MPPSC was not at fault for calling
(14) W.A. Nos. 1685/2022 & 1425/2022
both the candidates for interview .
11. Now, the second question is whether the appellant Rishi
Pathak was rightly appointed on the post of Scientific Officer
on the basis of marks obtained in the interview. For the post in
question, the essential qualification is Post Graduate in
Chemistry with a minimum second division. Admittedly, the
appellant is having a degree of Bachelor in Engineering (BE)
in Mechanical subject. Thereafter, he obtained Masters of
Technology (MTech) in Engineering Materials and Chemical
Science from MANIT, Bhopal and was appointed as Assistant
Professor in RGPV, Bhopal. However, the other equivalent
postgraduate degrees are also acceptable as an essential
qualification to the post in question but the degree of M.Tech
in which chemistry is only one subject cannot be equated with
Post Graduate in chemistry. There is no such certificate issued
by any competent Authority or body to treat M.Tech in
Engineering Material and Chemical Science as equivalent to
the Post Graduate(M.SC) in Chemistry.
12. Apart from that Rishi Pathak does not possess a training
certificate in Chemical Conservation of Ancient Antiquities
(15) W.A. Nos. 1685/2022 & 1425/2022
from Government recognized Institution as well. The
certificate which was produced by Rishi Pathak is issued by
AISECT University and cannot be treated as Government
recognized Institution. This certificate nowhere certifies that
Pathak got training in the chemical conservation of ancient
antiquities. Therefore, he does not possess even the essential
qualifications. Writ Court has not committed any error in
setting aside his appointment to the post of Scientific Officer.
13. So far the respondent Nilesh Lokhande is concerned, he
was already working in the Directorate of Archaeology,
Archive & Museum, MP Govt., Bhopal on the post of
Chemist. However, the writ Court has left it open to the
MPPSC & the State Government to consider his qualifications
and appoint him to the post of Scientific Officer thereafter .
However, it has been told that the appointment order has been
issued and he has been appointed to the post of Scientific
Officer, which has not been challenged by Rishi Pathak,
therefore, no interference is called for.
Writ appeal No.1685/2022 is, accordingly, dismissed.
W.A. No.1425/2022 is allowed. The cost of Rs.50,000/- is
(16) W.A. Nos. 1685/2022 & 1425/2022
hereby waived. If the MPPSC has deposited Rs.50,000/- with
the Registry, the same be returned.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
(and)
