Writ Petition No. 4791 of 2012. Case: Tushar Babanrao Deshmukh, Aged 32 years, Occupation- Nil, R/o 'Chandra Mauli', Shahu Nagar, Ward No. 16, Chaitanyawadi, Buldhana, Taluq and District Buldhana Vs The State of Maharashtra, Through the Chairman, Maharashtra Public Service Commission, 3rd Floor, Bank of India Building, M.G. Road, East Mumbai and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 4791 of 2012 |
| Counsel | For Appellant: Shri C.S. Kaptan, Senior Advocate with Shri A.P. Kalmegh, Advocate and For Respondents: Shri P.D. Kothari, Assistant Government Pleader for Respondent Nos. 1 to 3 and Shri S.P. Palshikar, Advocate for Respondent No. 6 |
| Judges | B.R. Gavai and A.P. Bhangale, JJ. |
| Issue | Service Law |
| Citation | 2013 (2) AllMR 795, 2013 (3) MahLJ 673 |
| Judgement Date | December 21, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
B.R. Gavai, J., (Nagpur Bench)
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Rule. Rule made returnable forthwith. Heard finally with consent of the learned Counsel for the parties. The petitioner challenges the judgment and order dated 25/9/2012 passed by the learned Maharashtra Administrative Tribunal in Original Application No. 560/2011, thereby dismissing the original application filed by the petitioner.
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For appreciating the controversy, it will be necessary to refer to the factual background in the present matter, which is somewhat lengthy.
An advertisement came to be issued by the respondent Maharashtra Public Service Commission on 27/6/2008, thereby inviting applications for the posts of Deputy Superintendent of Police/Assistant Commissioner of Police (Motor Transport)-Group 'A'. The requisite qualification that was provided in the advertisement was a Degree of recognized University or Diploma of recognized Institute in Automobile or Mechanical Engineering. Insofar as experience requirement is concerned, it was provided that the candidate should have three years' practical experience in the field. It was also provided that experience acquired prior to obtaining academic qualification would also be counted in an appropriate case.
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Undisputedly, the petitioner so also respondent nos. 4 to 6 applied pursuant to the said advertisement. The respondent MPSC published a list of candidates, who were eligible to appear for the written examination, which was to be conducted on 24/10/2010. The petitioner's name appeared at serial no. 61 in the said list. After written examination was conducted, a list of candidates, who were eligible to be called for oral interview so also the list of candidates, who were found to be not eligible for oral interview were published. The petitioner's name did not appear in any list. As such, the petitioner approached the learned Maharashtra Administrative Tribunal seeking direction to the respondent MPSC to call the petitioner for interview. The learned Tribunal vide interim order dated 16/8/2011 directed the respondent MPSC to permit the petitioner to appear in interview. Accordingly, the petitioner was called for interview on 18/8/2011. After interview was conducted, an affidavit was filed on behalf of the respondent MPSC that the petitioner did not get the requisite minimum marks in the oral interview and as such, he was not entitled to be selected. Along with affidavit, Standing Order dated 20/3/2002 was also placed on record and it was contended that unless a candidate secures more than 40 marks in interview, he is not eligible to be selected.
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When matter was heard by the learned Maharashtra Administrative Tribunal, it was tried to be urged on behalf of the petitioner that the said Standing Order was not applicable to the present selection process. However, the learned Tribunal found that there was nothing in the Original Application about challenge to the applicability of the said Standing Order and, therefore, declined to go into that question. The learned Tribunal found that since the petitioner's candidature was rejected on the ground that he did not obtain more than 40 marks in the oral interview, the original application was liable to be rejected. However, the learned Tribunal left open the issue regarding applicability of the said Standing Order. Being aggrieved thereby, the petitioner has filed the present petition.
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Shri Kaptan, learned Senior Counsel appearing on behalf of the petitioner, submits that the respondent MPSC has been changing its stand time and again as it would suit its convenience. It is contended that earlier the stand taken by the respondent MPSC was that the petitioner's experience was not as required and, therefore, he was not called for the interview. It is submitted that as a matter of fact, the scrutiny was done even prior to calling the candidates for the written examination and from the scrutiny sheet itself, it is clear that the respondent MPSC, upon perusal of the documents submitted by the petitioner, had found that the experience certificate submitted by the petitioner was in conformity with the requirements and as such, he was found to be eligible. It is further submitted that subsequently an endorsement has been made mischievously that the petitioner's experience certificate was not in consonance with the requirements inasmuch as the petitioner's appointment was on a temporary basis.
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Learned Senior Counsel Shri Kaptan further submits that the Government Resolution on which reliance is placed by the respondent MPSC, does not exclude the experience gained by the candidate in employment, which is of temporary nature. It is contended that subsequently a stand has been taken by the respondent MPSC that the petitioner has not received more than 40 marks in the interview and as such, he was not eligible to be considered. It is further contended that the said Standing Order, which is relied on by the respondent MPSC, is not applicable to the present selection process inasmuch the present selection process is a composite selection process consisting of written examination and oral interview and the said Standing Order is applicable only if selection process is based on oral interview alone. The learned Senior Counsel further submits that in view of settled position of law, the respondent MPSC could not have altered the terms and conditions, which were provided in the advertisement. It is submitted that the advertisement specifically provided that the marks of both written examination and oral examination would be counted for considering as to whether a candidate is qualified or not. The learned Senior Counsel relying on the judgments of the Apex Court in the cases of Ashok Kumar Sharma and others vs. Chander Shekhar and another {(1997) 4 SCC 18}, Madan Mohan Sharma and another vs. State of Rajasthan and others {(2008) 3 SCC 724} and B. Ramakichenin @ Balagandhi vs. Union of India and others (2008 (1) ALL MR 480) as well as judgment of the Division Bench of this Court in the case of Sudhir s/o Sharadrao Hunge and another vs. State of Maharashtra and others (2010 (4) Mh. L.J. 572) submits that it is not permissible for the Authority to change the eligibility requirement and the law requires that the Authority must adhere to the requirements as prescribed in the advertisement inviting applications.
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Learned Senior Counsel Shri Kaptan further submits that the learned Maharashtra Administrative Tribunal ought to have permitted the petitioner to amend the original application so as to incorporate the challenge to applicability of the Standing Order dated 20/3/2002 and decided the said aspect.
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Shri Palshikar, learned Counsel appearing on behalf of respondent no. 6 and Shri Kothari, learned Assistant Government Pleader appearing on behalf of respondent nos. 1 to 3, submit that the petitioner having participated in the selection process is now estopped from challenging the same. It is contended that petitioner while appearing for interview was aware that unless he secures 40 marks in interview, he would not be qualified. It is, therefore, submitted that having knowledge of the said requirement, after participating in the selection process, the petitioner is now estopped from challenging the selection process. Learned Counsel Shri Palshikar relies on the judgments of the Apex Court in the cases of Madan Lal and others vs. State of J&K and others {(1995) 3 SCC 486} and Dhananjay Malik and others vs. State of Uttaranchal and others {(2008) 4 SCC 171} as well as judgment of the Division Bench of this Court in the case of Sonali Ramkrishna Bayani vs. State of Maharashtra and others (2003 (5) Mh. L.J. 738). Learned Counsel Shri Palshikar also relies on the judgment of the Division Bench of this Court in the case of Manoj s/o Arvindrao Sable and others vs. State of Maharashtra and others (2011 (1) Mh. L.J. 344) in support of the proposition that prescribing securing of minimum number of marks in oral interview is permissible in law and, therefore, cannot be faulted with.
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Shri Kothari, learned...
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