Bombay High Court
Amjadkhan Mehmood Khan Pathan And Anr. vs The State Of Maharashtra And Ors. on 5 December, 2002
Equivalent citations: (2003)105BOMLR18
Author: B.H. Marlapalle
Bench: B.H. Marlapalle, N.H. Patil
JUDGMENT B.H. Marlapalle, J.
1. This Petition, filed under Articles 226 and 227 of the Constitution, impugns the decision of the Maharashtra Administrative Tribunal in Original Application No. 309 of 2002 rendered on 28th of October, 2002 whereby the appointment of the Petitioners made on 24th October, 2000 to the post of constable in Prohibition and Excise Department was set aside.
2. We have heard the learned Counsel for the respective parties as well as learned A.G.P., at length and we have also perused the record pertaining to the subject selection proceedings originally made in September/October, 2000 as well as the fresh selection pursuant to the impugned decision of the Tribunal.
3. Rule. Leave to amend.
4. Learned Counsel for the respective Respondents waive service.
5. Rule is taken up for final hearing forthwith.
6. Sometime in the month of July, 2000 the Respondent No. 1 initiated steps for recruitment of 7 constables by nomination against the vacant posts sanctioned by the Commissioner, State Excise, Maharashtra State and names of suitable candidates, meeting the educational and physical requirements, were invited from the recognised Government agencies. A Selection Committee consisting of Collector, Superintendent of Police, Deputy Collector and Superintendent of State Excise, was formed and more so because the Regional Selection Board did not exist at the relevant time. The Collector was Chairman of the said Local Selection Committee. On receipt of the names of candidates from the respective agencies the screening was done keeping in mind the minimum educational qualifications prescribed under "The Inspector, Sub-Inspector, Petty Officer, Driver-cum-Constable and Constable in the State Excise Department (Recruitment) Rules, 1992" [for short, the Recruitment Rules). Rule 7 of the Recruitment Rules pertains to the appointment of Excise Constable and it reads, thus :
7. Appointment, to the post, of Excise Constable shall be made by nomination from amongst the candidates who -
(a) possess the Secondary School Certificate Examination,
(b) possess the following minimum physical standards viz, height not less than 165 cms. and minimum deflated chest 79 cms. with expansion of 5 cms. between deflated and inflated chest measurements, In case of female candidates she should not be less than 160 cms. in height and 50 kgs. in weight.
Accordingly, 183 candidates were called for physical fitness test by sending interview calls and the physical test was conducted on 16th October, 2000. Only 67 candidates qualified in the said test and they were called for written examination which was held on 19th October, 2000. This examination was of 80 marks whereas for physical test the candidates were assessed for 100 marks and the same was in addition to the physical examination for determining the height and chest measurements. It consisted of the following parameters :
(a) 100 meters running 20 Marks (b) Long Jump 20 Marks (c) High Jump 20 Marks (d) Hurdle Jump 20 Marks (e) Sit ups 20 Marks
After the physical and written test was conducted, candidates were called for oral interview in the ratio of 1:3 and as there were 7 posts to be filled in 20 candidates were called for interview which was held on 23rd of October, 2000 and finally appointment orders to the selected 7 candidates were issued on the very next day i.e. on 24th of October, 2000. The selected 7 candidates were from the following categories :(a) Open 4
(b) O.B.C. (Project affected) 1 (c) Nomadic Tribes (B) 1 (d) Scheduled Castes 1
7. When the selection list was displayed the present Respondent Nos. 3 and 4 were wait listed at Serial Nos. 3 and 7 respectively whereas the added Respondent No. 5 was at Serial No. 2 in the said Wait List. The Respondent Nos. 3 and 4, therefore, approached the Tribunal by filing Original Application No. 871 of 2001 and prayed for the following reliefs :
(B) To direct the Respondents to declare the marks of the oral test of the applicants and other selected candidates which was conducted on 23rd September, 2000 by the Respondent No. 2.
(C) To direct the Respondents to produce the original record of the oral test which was conducted by the Respondent authorities on 23rd Sept., 2000 for the post of Constable and further direct the Respondents, to consider the claim of the applicants for the post of Constable on the basis of marks objected. In written, physical as well as oral tests.
8. There was no interim order issued in this application and the present Petitioners, who were selected and appointed by order dated 24th October, 2000 had already joined as Constable - State Excise Department, under Respondent No. 2. When the original application was taken up for hearing the State authorities placed before the Tribunal the proceedings of the selection process as well as the marks obtained by each of the 20 candidates in oral interview and the Tribunal disposed of Original Application No. 871 of 2001 by order dated 13th February, 2002, which reads thus :
Prayer made in the Petition has already been complied with and the marks are made aware to the applicant. Hence, the petition has become infructuous. The Petitioner is at liberty to make an appropriate petition for challenging the subsequent action, if any. Disposed of as infructuous.
9. The Respondent Nos. 3 and 4, after disposal of Original Application No. 871 of 2001 subsequently approached to the Tribunal by a fresh petition which came to be registered as Original Application No. 309 of 2002 which was filed on or about 14th of March, 2002. Admittedly, there as no separate application moved before the Tribunal for condonation of delay and it was specifically contended in the application itself that it was filed in time and did not suffer from any delays.
10. The present petitioners as well as the Respondent - State authorities opposed Original Application No. 309 of 2002 by filing reply on two counts viz. (a) that the application was barred by the provisions of Section 21 of the Administrative Tribunals Act, 1985 and more so because there was no separate application moved for delay condonation under Sub-section (3) of the said section and (b) the selection process which culminated in appointment orders issued on 24th of October, 2002 was not vitiated on any count. However, the Tribunal, in the impugned order, held that the Original Application No. 309 of 2002 was filed in time and the selection process was vitiated as the guidelines laid down in the circular dated 3rd October. 1998, issued by the Commissioner, State Excise Department, were not followed inasmuch as the Respondent - State authorities had committed errors in preparing the selection list on the basis of the marks of physical test, written test and oral test and they ought to have finalised the said selection list only on the basis of the marks of written test and oral test. While, allowing the application the Tribunal gave the following directions.
The Respondents are directed to prepare a fresh select list in accordance with the circular and in accordance with what was published in the advertisement for recruitment to the post of Constable in State Excise Department. The Applicants' claims shall be construed accordingly and appropriate list shall be published and appointments be made accordingly. Appointments given to Respondent Nos. 3 and 4 are hereby set aside with a direction to prepare fresh select list in accordance with what is stated in this order.
11. Pursuant to the directions given by the Tribunal the Respondent No. 2, during the pendency of this Petition, reassessed the marks of all the 20 candidates and on the basis of the marks scored in the written and oral tests published a fresh select list of 7 candidates and issued appointment orders on or about 30th of November, 2002. In the fresh list the present Petitioners did not find their place and they were issued written order of termination on 30th November, 2002. It is pertinent to note, at this stage itself, though one Shri Mohammad Rafique Abdul Wahab, who was selected and appointed on 24th December, 2000 alongwith the Petitioners and who was in service all along has also been displaced as his name is not in the select list prepared pursuant to the impugned directions. The said Shri Mohammed Rafique Abdul Wahab was not impleaded in the Original Application No. 309 of 2002 as a Respondent.
12. Shri Salunke, the learned Counsel appearing for the Petitioners reinforced his arguments on the point of limitations and contended that the Tribunal committed a gross error in entertaining the petition when it was not accompanied by a separate application for condonation of delay. The reasoning given by the Tribunal in holding that the application was not beyond limitation is not proper and factually incorrect. On the point of merits it has been submitted that the selection procedure which was adopted by the Local Selection Committee under the Chairmanship of the Collector had followed the guidelines issued by the Commissioner, State Excise Department, and the guidelines laid down in the circular dated 3rd October, 1998 were applicable only for filling in 122 posts of constables in the year 1998-99 and this circular did not. have a general applicability. Shri Sapkal, the learned Additional Government Pleader invited our attention to the reply filed on behalf of Respondent No. 2 in Original Application No. 2 and reiterated that the impugned order suffers from errors apparent on the face of the record on the point of limitation as well as merits. Though the Respondent No. 2 has not taken steps to challenge the impugned decision, the stand of the Government in opposing the impugned order is made clear before us.
13. Having considered the rival submissions advanced before us, at length, we have no doubt in our mind to hold that the impugned order suffers not only on the point of limitation and merits but indeed on the additional point of failure to implead the other five appointed constables on 24th October, 2000.
14. At the outset we must mention that when Original Application No. 309 of 2002 was moved before the Tribunal, not only the present Petitioners but five other Constables were in service for almost one year and 5 months and when the selection process was brought in question, it was necessary that all the selected and appointed candidates were impleaded as necessary parties. As we have observed in the earlier paragraphs, in addition to the present Petitioners, one more appointee by name Shri Mohammed Rafique Abdul Wahab has been displaced in the fresh selection process carried out pursuant to the orders passed by the Tribunal and he was not a party In Original Application No. 309 of 2002. After having waited for more than two years, he is displaced consequent to the directions by the Tribunal which did not have an occasion to hear him. This is impermissible in law.
15. Coming to the point of limitation, Section 21(1) and (3) are relevant for our considerations and they read as under :
21. Limitation.- (1) A Tribunal shall not admit, an application, -
(a) in a case where a final order such as is mentioned in Clause (a) of Sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in Clause (b) of Sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
2....
3. Notwithstanding anything contained in Sub-section (1) or Sub-section (2), an application may be admitted after the period of one year specified in clause, (a) and Clause (b) of Sub-section (1) or, as the case may be, the period of six months specified in Sub-section (2), if the applicant satisfies the Tribunal that he has sufficient cause for not making the application within such period.
While Sub-section (1) puts a bar on entertaining an application if not filed within the limitation prescribed therein, Sub-section (3) which opens with an non obstante clause empowers the Tribunal to entertain the belated application if sufficient cause for not approaching within the prescribed period is made out. If an application is filed beyond the period prescribed in Sub-section (1), the Tribunal is empowered to condone the delay if the applicant satisfies that he had sufficient cause for not making the application within such period failing which the application submitted would not be admitted. In the instant case, no application for condonation of delay was filed in Original Application No. 309 of 2002 and in the Limitation Clause it was stated that the original application was filed within the period of limitation, as prescribed under Section 21 of the Act. The Tribunal's reasoning to hold that the application was filed in time or it did not suffer from any delay, as contained in para No. 4 of the impugned order reads thus:
Though the selection was done on 23.10.2000 at that point of time applicants have already challenged the action of Respondents in not declaring marks of all the candidates. The said challenge of the applicants ended by disposal of Original Application No. 871/2001 on 13.2.2002. It was in February, 2002 that the applicant's request was complied by the Respondents by publishing the marks obtained by all the candidates. It is only at that point of time that the Applicants could come to know that they were aggrieved because even though they had obtained higher marks in written and oral tests taken together, they were excluded from the final selection. They have filed this Original Application within one year from the date when they became aware that they were aggrieved persons. According to us the original application is within time and cannot be thrown out by invoking Section 21 of the Administrative Tribunals Act.
16. The prayers made in Original Application No. 871 of 2001 have been reproduced by us in Para No. 7 above and as soon as the selection proceedings and the marks lists were placed before the Tribunal it disposed of the same as infructuous on 13th February, 2002. If regards be had to prayer Clause (C), it was clear that the applicants had sought directions to consider their claim for the post of constable on the basis of the marks obtained in written, physical as well as oral tests. It was possible for the original applicants (Present Respondent Nos. 3 and 4) to amend (he Original Application No. 817 of 2001 and implead all the selected/appointed 7 candidates as additional respondents and proceed further on the basis of the marks list and the contentions raised in support of the relief prayed for. This was not done and obviously the original Applicants were contended by the marks list which was placed before the Tribunal. The liberty granted by the Tribunal in its order dated 13th February, 2002. to make an appropriate petition for challenging the subsequent action, if any, cannot be interpreted to be a liberty to challenge the selection process which had resulted into the appointments made on 24th October, 2000 which was. in fact, the subject matter of challenge in Original Application No. 871 of 2001 itself. The appointments of the present. Petitioners and other five candidates could not be termed as fresh or subsequent action with reference to the order dated 13th February, 2002 passed by the Tribunal, otherwise the word "subsequent" would be rendered meaningless. There was no liberty granted by the Tribunal to challenge the appointment of the Petitioners as well as the other five constables. While disposing of Original Application No. 871 of 2001 as infructuous the term "infructuous" indicated that the prayers made in the application/petition were already met and nothing further survived to continue with the application.
17. Looking to the scheme of Section 21 of the Act it was necessary for the Respondent Nos. 3 and 4 to file a separate application for condonation of delay in Original Application No. 309 of 2002. May be that they had justifying reasons for the delay in challenging the selection for the post of constables but that justification was required to be demonstrated by a separate application as contemplated under Sub-section (3) of Section 21 of the Act and it was permissible for the Tribunal to condone the delay if it was so satisfied. The impugned order of the Tribunal, on the point of limitation, suffers on two counts, firstly, the application certainly suffered from delay and it could not have been held to have been filed within the limitation prescribed under Section 21(1) of the Act and secondly there was no application submitted for condonation of delay and in the absence of such an application it was not permissible to the Tribunal to entertain the Original Application No. 309 of 2002. In support of this view, we rely upon the following decisions of the Apex Court :
(i) Secretary to Government of India and Ors. v. Shivram Mahadu Gaikwad 1995 Supp 3 SCC 231 : 1995 (30) A.T.C. 635 : 1995 (6) S.L.R. 812.
(ii) State of Karnataka and Ors. v. S.M. Kotrayya and Ors. .
(iii) Ramesh Chand Sharma v. Udham Singh Kamal and Ors. .
18. Coming to the merits of the selection process completed in September/October, 2000 by the Respondent No. 2 it is pertinent to consider the stand taken by the said officer in his reply submitted before the Tribunal. It was made clear that the selection process was undertaken by following the guidelines contained in circular dated 14th February, 1994 issued by the Inspector General of Police, Mumbai and the Selection Committee had prepared a select list alongwith waiting list, containing 7 names against, the vacancies and another 7 names as wait listed.
It was, in fact, clarified that the entire selection was made on the basis of the guidelines contained in the said circular dated 14.2.1994. The Tribunal did not agree with these submissions and it held that the physical test which was followed by the Selection Committee was applicable for the police constables and not for the excise constables. The Tribunal referred to the guidelines contained in annexures to the circular dated 3rd October, 1998 and recorded a finding that the final select, list, was required to be made on the basis of the marks secured in the written and oral tests (out of 100 marks) and not. on the basis of the marks secured in physical test, written test and oral test (out of 200 marks). There is no dispute that the annexure to the circular dated 3rd of October, 1998 stated that the select list would be made on the basis of the marks secured in the written and oral tests. It appears that the Tribunal's reliance on this circular is totally misplaced. The circular stated that on 16th of October. 1993 the State Government had imposed ban on further recruitment and the same was lifted by Resolution dated 25th of March, 1998 and accordingly in all 122 vacant posts of constables were required to be filled in, in the year 1998-99. The Government granted approval for the said recruitment and further stated that for the said recruitment the guidelines attached in the annexures would be followed. It is, thus, obvious that the guidelines were set out for recruitment of 122 constables in the year 1998-99 and they were not of general nature. These guidelines could not be made applicable for the subsequent recruitments unless the Competent Authority had issued further circulars or communications to that effect. There is one more reason why these guidelines could not be applicable to the subject selection undertaken in September/October, 2000. The 1998 guidelines stated, inter alia, that in the written test passing marks would be 40 and the candidates who have passed shall be called for oral Interview in the ratio of 1:2. That means, to fill in the 7 posts of constable 14 candidates would be called for interview. Whereas, the Selection Committee headed by the Collector, in the impugned selection process, called the candidates for oral interview in the ratio of 1:3 and this has not been challenged in both the original applications moved by the Respondent Nos. 3 and 4.
19. Admittedly, the recruitment rules are silent on the procedure to be adopted for selection from amongst those candidates who were found to be eligible in terms of educational qualifications and physical examination. The term "physical examination" and "physical test" cannot be equated with each other. Physical examination was intended for checking the height and chest measurements so that the minimum requirements in this regard, as set out in the recruitment rules, are met. If a candidate did not meet this minimum requirements or the educational requirement, would be treated to be disqualified for the screening itself but those who had met these minimum qualifications were subjected for physical test which consisted of the parameters as per the guidelines set out in the circular dated 14th February, 1994. In the view of the Tribunal this circular could not have been made applicable for selection of excise constable, as it was applicable for the selection of police constable. There was no such bar or any specific rules or any guidelines or directions issued by the Competent. Authority. The nature of duties of the Excise Constables are similar, may not be the same, as are carried out by the police constable and both of them are uniformed. If the Selection Committee decided to follow the guidelines laid down in the circular dated 14th February. 1994 and finalise the selection list on the basis of the marks secured in the physical test, written test and oral test, there was no reason to hold that the selection process was vitiated.
When the Tribunal was called upon to examine the validity of the selection process conducted by the duly constituted Committee it could not have set aside such a selection unless it was held that it vitiated the recruitment rules or the guidelines or it suffers from extraneous considerations. The Tribunal committed an error in holding that the guidelines annexed to the circular dated 3rd October, 1998 were of general nature and they were applicable to all future selections.
20. We have also noted from the record that on 5th of September, 2000 the Superintendent of State Excise at Nanded in his communication to the District Superintendent of Police, had specifically stated that physical test would be conducted and it would be of 100 marks. The assessment has been done as per the parameters for the said physical test and the merit list was prepared on the basis of the marks secured in the physical test, written test and oral test of all these 20 candidates and the final selection was based on this merit list. It is an admitted position that the Respondent Nos. 3 and 4 did not secure more marks than any of the appointed 7 candidates as per the said merit list. There is no candidate, out of the 20, who were called for interview and had secured less than 50% marks in the physical test as well as the written test as is reflected from the record.
21. In the result, we hold that the view taken by the Tribunal suffers from errors apparent on the face of the record and, therefore, the impugned order cannot be sustained. The Petition is allowed and the impugned order dated 28th October, 2002 passed by the Maharashtra Administrative Tribunal in Original Application No. 309 of 2002 is hereby quashed and set aside. The order of termination dated 30th November, 2002 is hereby quashed and set aside. The Respondent Nos. 1 and 2 shall take further appropriate steps.
22. Rule made absolute in terms of the above order, however, with no order as to costs.
23. Shri Kulkarni, the learned Counsel appearing for Respondent Nos. 3, 4 and 5 presented Civil Application for stay. We have noted that the present petitioners were in service right, from 24th October, 2000 and they have been issued the order of termination on 30th November, 2002 i.e. after more than two years. The balance of convenience is, therefore, not in favour of the present Applicants. The Civil Application is rejected.