Bombay High Court
Tushar Babanrao Deshmukh vs The State Of Maharashtra on 21 December, 2012
Author: B.R. Gavai
Bench: B.R. Gavai, A.P. Bhangale
1 wp4791.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4791 OF 2012
Tushar Babanrao Deshmukh,
aged 32 years, occupation :
nil, r/o "Chandra Mauli",
Shahu Nagar, Ward No.16,
Chaitanyawadi, Buldhana,
Taluq and District Buldhana. ... Petitioner
- Versus -
1) The State of Maharashtra,
through the Chairman,
Maharashtra Public Service
Commission, 3rd Floor,
Bank of India Building,
M.G. Road, East Mumbai.
2) The State of Maharashtra,
through the Secretary,
Maharashtra Public Service
Commission, 3rd Floor, Bank of
India Building, M.G. Road,
East Mumbai.
3) The State of Maharashtra,
through its Secretary,
Home Department, Mantralaya,
Mumbai.
4) Sachin Prabhakar Bade,
r/o "Ashirwad", Plot No.22,
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Behind Ras-Bihori International
School, Panchwati,
Nasik - 422 003.
5) Jitendra Mukundrao Patil,
r/o 18, "Yashada" Gayatri
Nagar, near Shubham Nagar,
Post Walwadi (Wadibokar),
Dhule, Taluq and District
Dhule - 424 004.
6) Mohan s/o Shrikrushna
Badukale, aged 38 years,
r/o in Kolhe House,
Rathi Nagar, Amravati. ... Respondents
-----------------
Shri C.S. Kaptan, Senior Advocate with
Shri A.P. Kalmegh, Advocate for petitioner.
Shri P.D. Kothari, Assistant Government Pleader for
respondent nos. 1 to 3.
Shri S.P. Palshikar, Advocate for respondent no.6.
----------------
CORAM : B.R. GAVAI AND
A.P. BHANGALE, JJ.
DATED : DECEMBER 21, 2012
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ORAL JUDGMENT (PER B.R. GAVAI, J.) :
Rule. Rule made returnable forthwith. Heard finally with consent of the learned Counsel for the parties.
2) 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.
3) 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'.
::: Downloaded on - 09/06/2013 19:31:32 :::4 wp4791.12 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.
ig It was also provided that
experience acquired prior to obtaining academic
qualification would also be counted in an appropriate case.
4) 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, ::: Downloaded on - 09/06/2013 19:31:32 ::: 5 wp4791.12 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 ig 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.
5) When matter was heard by the learned Maharashtra Administrative Tribunal, it was tried to be ::: Downloaded on - 09/06/2013 19:31:32 ::: 6 wp4791.12 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.
6) 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 ::: Downloaded on - 09/06/2013 19:31:32 ::: 7 wp4791.12 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.
7) Learned Senior Counsel Shri Kaptan further submits that the Government Resolution on which reliance is placed by the respondent MPSC, does not ::: Downloaded on - 09/06/2013 19:31:32 ::: 8 wp4791.12 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 ::: Downloaded on - 09/06/2013 19:31:32 ::: 9 wp4791.12 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.
8) 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 ::: Downloaded on - 09/06/2013 19:31:32 ::: 10 wp4791.12 challenge to applicability of the Standing Order dated 20/3/2002 and decided the said aspect.
9) 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 ::: Downloaded on - 09/06/2013 19:31:32 ::: 11 wp4791.12 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.
10) Shri Kothari, learned Assistant Government Pleader for respondent nos. 1 to 3, relies on the judgment of the Apex Court in the case of Vijendra Kumar Verma vs. Public Service Commission, Uttarakhand and others (2011 (1) SCC 150) in support of the aforesaid propositions. The learned Assistant Government Pleader submits that the petitioner did not possess the requisite experience and also did not obtain the minimum marks in the oral interview as ::: Downloaded on - 09/06/2013 19:31:32 ::: 12 wp4791.12 required and as such, his candidature has rightly been rejected by the respondent MPSC.
11) We will first deal with the preliminary objection raised on behalf of the respondents regarding tenability of the petition. By now, it is a settled position of law that if a candidate takes part in the selection process, he is estopped from challenging the selection process after he fails to succeed in it.
This is basically on the ground that a party cannot be permitted to take chances.
12) In the case of Madanlal and others (cited supra), the candidates had challenged the selection process after they were declared unsuccessful in the selection process. In the said case, one challenge, which was made by the candidates, was that the members of the Selection Committee ought to have recorded separate marks for each of the candidates.
However, the Apex Court found that there was nothing ::: Downloaded on - 09/06/2013 19:31:32 ::: 13 wp4791.12 in the Rules, which provided for separate assessment of marks for candidates at viva voce. The Apex Court found that the candidates were aware about the Rules and, therefore, cannot be permitted to argue that the Selection Committee ought to have awarded marks de hors the Rules.
13) Insofar as the case of Dhananjay Malik and others (cited supra) is concerned, in the said case, it was the contention of the petitioners therein that the advertisement, which was issued by the Authorities, was not in accordance with the Rules. However, on the basis of the said advertisement, the candidates had appeared. In this background, the Apex Court observed in para (9) of the judgment, which reads thus :
"9) In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance ::: Downloaded on - 09/06/2013 19:31:32 :::
14 wp4791.12 with the Rules, they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."
14) Insofar as judgment of the Division Bench of this Court in the case of Sonali Ramkrishna Bayani (cited supra) is concerned, in the said case, the petitioner after having participated in the entire selection process, had challenged that the selection process was not in accordance with law and it was held that once participated, the petitioner cannot challenge the selection process. A similar view has been taken by the Apex Court in the case of Vijendra Kumar Verma (cited supra) that once a candidate acquiesced to the selection process, it is not permissible for him to challenge the same.
15) It can clearly be seen that in all the aforesaid cases, the candidate had voluntarily participated in the selection process and subsequently challenged validity ::: Downloaded on - 09/06/2013 19:31:32 ::: 15 wp4791.12 thereof. In the present case. the petitioner was compelled to approach the learned Maharashtra Administrative Tribunal contending that though he was qualified, he was not called for interview. It was the contention of the petitioner that denial of an opportunity to appear for oral interview was de hors the selection process. In this factual background, the learned Tribunal, by an interim order, directed the respondent MPSC to conduct interview of the petitioner. In the present case, it is not the case of the petitioner that the selection process, as envisaged by the advertisement or rules, is illegal or ultra vires.
The contention of the petitioner is that though the selection procedure prescribes one mode, the respondent MPSC has taken recourse to some other mode, which is not permissible under advertisement and recruitment rules. In that view of the matter, we find that the aforesaid judgments would not be applicable to the facts of the present case.
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16) Insofar as contention of the respondents that the Authority is permitted in law to prescribe minimum marks in the oral interview is concerned, there can be no quarrel with the said proposition. In view of the law laid down by the Apex Court in the case of Vijendra Kumar Verma (cited supra) and Division Bench of this Court in the case of Manoj s/o Arvindrao Sable and others (cited supra), an Authority is always permitted to prescribe minimum marks for an oral interview.
However, the question would be - at what stage ? In the present case, we find that the respondent MPSC has been changing its stance from time to time so as to suit its convenience. We are sorry to say that the facts, as placed on record, do not support the stance as taken by the respondent MPSC.
17) It is the case of the respondent MPSC that the petitioner was not qualified since he did not posses the requisite experience. The petitioner had submitted his experience certificate along with application form. The ::: Downloaded on - 09/06/2013 19:31:32 ::: 17 wp4791.12 same is placed on record at page 72. The said certificate was issued certifying that the petitioner was working in a supervisory capacity. Though the certificate shows the nature of employment as temporary, it indicates that the petitioner had been working from 1/6/2000 to 31/5/2003. It is thus clear that the petitioner possessed the necessary experience of three years. The question is whether experience of temporary employment would be the requisite experience as required under Government Resolution.
However, we will deal with the said aspect at little later stage.
18) The respondent MPSC has taken a stand in its affidavit-in-reply submitted before the learned Tribunal on 8/11/2011 as under :
"In all 376 applications were received against 4 posts advertised for the Deputy Superintendent Police/ Assistant Commissioner Police (Motor Transport), Group-A, as such to shortlist the said large number of applications, the Commission conducted a written objective type screening ::: Downloaded on - 09/06/2013 19:31:32 :::
18 wp4791.12 test and allowed all the candidates including the applicant to appear for the said screening test without scrutinizing their documents and application forms. The Commission has declared the result of the written test and called all the qualified candidates including the applicant for the interview."
It is thus the case of the respondent MPSC that all the applicants were permitted to appear for the written examination without there being any screening and without scrutinizing their documents, which were submitted along with the application forms. The record of the respondent MPSC itself falsifies the claim.
The scrutiny sheet, which is available on the website of the respondent MPSC itself, shows that the respondent MPSC had scrutinized the application form of the petitioner. On right side, there is a column with heading "for Office Use only". Under that column, it is mentioned as "beko". The petitioner's qualification has been shown as B.E. (Mech.). The experience has been shown as of three years. The endorsement dated 3/9/2010 made by an Officer shows that the petitioner ::: Downloaded on - 09/06/2013 19:31:32 ::: 19 wp4791.12 possesses the requisite qualification and experience and, therefore, is eligible. The said endorsement was also endorsed by a superior Officer on 15/3/2011.
However, there is an endorsement of 26/4/2011, which for the first time states that "foghr inkojhy vuqHko ;ksX;
ukgh & vik=". However, to the naked eye, it would appear that the words "vuqHko ;ksX; ukgh & vik=" have been written subsequently. Not only this, the list, which has been published by the respondent MPSC itself, which is annexed as Annexure "C" to the petition, shows that scrutiny was done and a list of 69 candidates eligible to appear for written examination, which was to be conducted on 24/10/2010, was prepared. In the said list, undoubtedly the name of the petitioner is included. In that view of the matter, we find that the respondent MPSC has made a totally incorrect statement on the affidavit before the learned Maharashtra Administrative Tribunal that the scrutiny of documents of candidates was not done.
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19) Apart from that, we also find that the contention of the respondent MPSC that the petitioner's experience as a temporary employee cannot be taken into consideration in view of concerned Government Resolution is incorrect. It would be relevant to refer to Clauses 4.1.13.3 and 4.1.13.4 of the prospectus furnished by the respondent MPSC to the candidates, which read thus :
Þ4-1-13-3 'kklu ifji=d] lkekU; iz'kklu foHkkx] dzekad & ,lvkjOgh&2004@iz-dz-10@04@12] fnukad 3 tqyS] 2004 uqlkj 'kklu lsors hy fujfujkG;k inkaoj ljGlsosus@ukefunsZ'kukus lsokHkjrh dj.;kdfjrk lsok izos'k fu;ekuqlkj foghr vuqHkokP;k dkyko/khph x.kuk djrkuk jkstankjh] dk;ZO;;h] djkji/nrh] eku/ku] bR;knh Lo:ikr dsoG iw.kZoG s dke dsys vlY;klp vlk dkyko/kh vuqHkoklkBh xazkg; /kj.;kr ;sbZy-
4-1-13-4 rkfldk (On hourly basis)] fu;rdkfyd (Periodical)] va'kdkyhu (Part time)] fon;kosruh (On Stipend)] vH;kxr (Visiting)] va'knkukRed (Contributory)] foukosruh (Without pay) rRokoj dsysY;k va'kdkyhu lsospk dkyko/kh] izHkkjh (in-charge) Eg.kwu use.kqdhpk dkyko/kh] vfrfjDr dk;ZHkkjkpk (Additional Charge)] dkyko/kh] ekulsosP;k fu;qDrhPkk dkyko/kh vuqHkoklkBh xzkg; /kj.;kr ;s.kkj ukgh-ß ::: Downloaded on - 09/06/2013 19:31:32 ::: 21 wp4791.12 It can thus be seen from the document of the respondent MPSC itself that what is excluded from consideration as a qualifying experience is an employment on hourly basis, periodical employment, part time employment, employment on stipend, employment on visiting or contributory terms, employment without pay and employment, which is on the basis of In-charge or additional charge. It can also be seen that further exclusion is of employment, which is on daily wage basis, contract basis or honorarium basis. It can thus be clearly seen that what has to be excluded has been specifically provided in the aforesaid clauses. The said Clauses do not exclude employment, which is of temporary nature. In that view of the matter, we find that the contention of the respondent MPSC that the petitioner was not possessing the requisite experience is also not correct.
20) The next question is whether the respondent MPSC was justified in not considering the candidature ::: Downloaded on - 09/06/2013 19:31:32 ::: 22 wp4791.12 of the petitioner on the ground that he did not obtain minimum 40 marks in the oral interview. By now, it is a settled position of law that once an eligibility criteria is prescribed in an advertisement, it is not permissible for the Authority to change the same. The Apex Court in the case of Ashok Kumar Sharma and others (cited supra) has observed thus :
"Where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, an impermissible ::: Downloaded on - 09/06/2013 19:31:32 :::
23 wp4791.12 justification. The minority opinion in the 1993 decision in Ashok Kumar Sharma case that the 33 respondents, who were not qualified on the date of submission of the application but had acquired the requisite qualification before the date of interview, could not have been allowed to appear for interview, was right."
It can thus clearly be seen that an eligibility criteria will have to be considered as was existing on the last date of submitting an application.
21) The Apex Court had an occasion to consider somewhat similar issue in the case of B. Ramakichenin @ Balagandhi (cited supra) wherein the advertisement prescribed two years' experience. However, shortlisting was done by the UPSC by considering two years' experience only after a candidate passed M.Sc degree. Contending that there was no requirement that two years' experience should be after obtaining the Master degree in Agriculture, the candidate approached the High Court, which rejected the ::: Downloaded on - 09/06/2013 19:31:33 ::: 24 wp4791.12 petition. Being aggrieved thereby, the candidate went before the Apex Court. The Apex Court in para (23) of the judgment observed thus :
"23) Had paragraph 3.1 not been in the advertisement of the UPSC it is possible that we may have taken a view in favour of the respondents since in that case it was open to the UPSC to resort to any rational method of short-listing of its choosing (provided it was fair and objective). However, in the present case, a particular manner of short-listing has been prescribed in paragraph 3.1. Hence, it is not open to the UPSC to resort to any other method of short-listing even if such other method can be said to be fair and objective."
It can thus clearly be seen that in the present case, the advertisement mentions that the marks obtained in the written examination will be added to the marks obtained in the oral interview. However, it is nowhere stated that minimum 40 marks should be obtained by a candidate in the oral interview.
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22) It is not the situation in the case in hand that eligibility criteria has not been provided in the advertisement. In this connection, it would be relevant to refer to Clause 8.1 of the advertisement issued by the respondent MPSC, which reads thus :
"8.1 Written objective type test (multiple choice question) will be conducted and followed by interview for selection of candidates to the posts. Marks obtained in the written test will be added to the marks obtained in the interview. However, the Commission at its discretion may shortlist the applicants for interview based on reasonable criteria, i.e. higher qualification and/or experience in place of written test. In case of the written test, the syllabus and medium of question paper and other details for the test shall be displayed on the Commission's Website. Accordingly, the weightage of written tests and interview shall also be displayed."
It can thus clearly be seen that the said advertisement specifically provides that written objective type test (multiple choice questions) will be conducted and followed by interview for selection of candidates to the posts. It further provides that the marks obtained in the written test will be added to the marks obtained in the interview. Perusal of the entire advertisement ::: Downloaded on - 09/06/2013 19:31:33 ::: 26 wp4791.12 reveals that nowhere it is stated that the candidate must possess 40 marks or more in the oral interview for being considered eligible. In that view of the matter, we find that insistence on obtaining minimum 40 marks in the oral interview was not permissible.
23) It will also be relevant to refer to Rules of Procedure as prescribed by the respondent MPSC.
Clause (II) of Rule 7 of the Rules of Procedure, which deals with modes of recruitment, reads thus :
"(II) Direct Recruitment - Shall consist of any one of the following :
(i) By interviews only when the number of eligible applicants is within the proportion prescribed under the provision of Rule 9(i).
(ii) First by shortlisting candidates by applying criteria and thereafter by interview of the shortlisted candidates.
(iii) By holding the screening test of the eligible candidates for shortlisting candidates based on their merit of the screening test and interview of such shortlisted candidates."
It can thus be clearly seen that while making direct recruitment, the respondent MPSC can take recourse to ::: Downloaded on - 09/06/2013 19:31:33 ::: 27 wp4791.12 three modes, i.e. by interviews alone when the number of eligible applicants is within the proportion prescribed under the provisions of Rule 9(i), first by shortlisting candidates by applying criteria and thereafter, by interview of the shortlisted candidates, and by holding the screening test of the eligible candidates for shortlisting candidates based on their merit of the screening test and interview of such shortlisted candidates. It can thus be clearly seen that in the present case, the respondent MPSC has not resorted to the first mode of recruitment, i.e. by holding interviews only. The mode that was adopted was first shortlisting candidates on the basis as to whether they possessed the requisite qualification and experience or not and thereafter by holding a written test and thereafter calling the candidates, who had succeeded in the written test, for oral interviews. Perusal of the Standing Order dated 20/3/2002, which has been relied on by the respondent MPSC, clearly reveals that it is applicable only in case of recruitment by direct ::: Downloaded on - 09/06/2013 19:31:33 ::: 28 wp4791.12 interviews. As already discussed hereinabove, in the present case, the respondent MPSC has not resorted to mode of direct recruitment only on the basis of interviews and as such, reliance on the said Standing Order dated 20/3/2002, in our view, is without substance.
24) Insofar as reliance by the respondent MPSC on Clause 3.10.3, which is now a part of the General Guidelines to the candidates is concerned, no doubt, the said Clause requires that a candidate must secure more than 40% marks in the oral examination.
However, it is to be noted that the said guidelines were published in the month of September 2010 whereas the posts in question were advertised in the month of June 2008. In the case of Madan Mohan Sharma and another (cited supra), after the posts were advertised, the Rules were amended wherein criteria for selection was modified after the selection process began. The Apex Court in paragraphs (11) and (12) of the ::: Downloaded on - 09/06/2013 19:31:33 ::: 29 wp4791.12 judgment observed thus :
"11) We have heard learned Counsel for the parties and perused the records. Mr. M.R. Calla, learned Senior Counsel appearing for the appellants has strenuously urged that during the pendency of the selection process, the eligibility criteria were changed and the date for submission of the application in pursuance to the advertisement was extended and Rule 266 of the Rules of 1996 came into being on 30-12-1996 whereby it was provided that Higher Secondary Examination shall be the criteria for preparing the merit list. As such, as per the service rules, the selection should have been made on the basis of Higher Secondary Examination marks and not on the basis of Secondary Examination marks. We regret this cannot be accepted. Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has been made subsequently.
12) As per the circular which was obtaining at the time when the advertisement was issued ::: Downloaded on - 09/06/2013 19:31:33 :::
30 wp4791.12 dated 24-7-1995, the criteria for selection to the post of teacher Grade III was Secondary Examination though this was changed during the pendency of the advertisement. Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended. If this was to be done, then the only ig course open was to recall Advertisement No.1 of 1996 and to issue fresh advertisement according to the Rules, which had come into force. Secondly, this was not done and erroneously the authorities made the amended Rules applicable and proceeded with the selection, which resulted into litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and it was held that the selection should be made as per Secondary Examination marks, the criteria which was prevalent at the time when the advertisement was issued."
It can thus clearly be seen that the respondent MPSC is not justified in relying on the guidelines, which were issued in September 2010 whereas the posts in question were advertised in the month of June 2008 ::: Downloaded on - 09/06/2013 19:31:33 ::: 31 wp4791.12 and on the basis of the qualification prescribed in the advertisement, selection process had commenced much prior to September 2010. In view of the aforesaid judgment of the Apex Court, the stand taken by the respondent MPSC is totally without any merit.
25) In order to ascertain as to how much marks were obtained by the petitioner and respondent no.6, who were competing for the post reserved for candidates belonging to "Other Backward Class"
category, we had called for the original record indicating marks allotted by the respondent MPSC to the candidates. It would be relevant to note that the petitioner has secured 105 marks in the written examination whereas respondent no.6 has secured 76 marks. In the oral interview, the petitioner has been given 36 marks whereas respondent no.6 has been given 59 marks. The total of the petitioner's marks in the written examination and interview comes to 141 and that of respondent no.6 comes to 135. In spite of ::: Downloaded on - 09/06/2013 19:31:33 :::
32 wp4791.12 respondent no.6 being given 23 marks more than the petitioner in the oral interview, the respondent no.6 is having 6 marks less than that of the petitioner. We do not want to speak anything more about all this. The facts are so glaring that they speak for themselves.
26) We further find that the learned Maharashtra Administrative Tribunal has taken a hyper-technical view in the present matter. By now, it is a settled principle of law that Courts are required to be liberal in grant of amendments. In the present case, the matter was yet to be admitted and was at a preliminary stage.
The learned Tribunal instead of non-suiting the petitioner on a hyper-technical ground, could have allowed the petitioner to raise a ground regarding inapplicability of the Standing Order dated 20/3/2002 and decided the issue on merits. In any case, since the learned Tribunal has failed to do so, we were required to embark upon an enquiry in that regard.
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27) In the result, we are of the considered view that the impugned judgment and order dated 25/9/2012 passed by the learned Maharashtra Administrative Tribunal is not sustainable in law. The same is, therefore, quashed and set aside. The respondent MPSC is directed to consider the marks obtained by the petitioner and respondent no.6 in the written examination and oral interview both and declare the candidate, who has secured more marks, as selected against the post of Deputy Superintendent of Police/Assistant Commissioner of Police (Motor Transport) Group `A' reserved for "Other Backward Class" category candidates.
28) Rule is made absolute in the aforesaid terms.
No order as to costs.
29) The Registrar (Judicial) is directed to re-seal the envelope containing the mark-sheets and hand over the same to the learned Counsel for the ::: Downloaded on - 09/06/2013 19:31:33 ::: 34 wp4791.12 respondent MPSC, who shall hand it over to the competent Authority of the respondent MPSC.
30) At this stage, Shri Palshikar, learned Counsel for respondent no.6, seeks stay of this judgment for a period of eight weeks from today.
Taking into consideration the factual background, which we have resorted to at length, we do not find that this is a fit case for grant of stay. The request is rejected.
JUDGE JUDGE
khj
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