Bombay High Court
The Maharashtra Public Service ... vs Dr. Digambar Murlidhar Devang And ... on 24 December, 2014
Author: S. V. Gangapurwala
Bench: S. V. Gangapurwala, V. K. Jadhav
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REPORTED
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7679 OF 2014
The Maharashtra Public Commission
Through its Secretary
3rd Floor, Bank of India Building,
Mahatma Gandhi road, Fort, Mumbai .. Petitioner
Versus
1) Dr. Digambar Murlidhar Devang,
Age : 51 Years, Occupation : Service,
Resident of : 17, Vivek Colony,
Sambhaji Nagar road, Jalgaon
2) The State of Maharashtra,
Through Secretary,
Education Department,
Mantralaya, Mumbai - 32 .. Respondents
Shri M. S. Kulkanri, Advocate for the Petitioner.
Shri R. S. Deshmukh, Advocate for Respondent No. 1
Shri U. S. Mote, A.G.P. for the Respondent No. 2
CORAM : S. V. GANGAPURWALA AND
V. K. JADHAV, JJ.
CLOSED FOR JUDGEMENT ON : 02ND DECEMBER, 2014
JUDGEMENT PRONOUNCED ON: 24TH DECEMBER,2014
JUDGEMENT (Per S. V. Gangapurwala, J.) :
1) The petitioner Commission published advertisement ::: Downloaded on - 24/12/2014 23:47:16 ::: 2 wp7679.14 inviting application from the interested candidate for filing up the post of Education Officer. Pursuant to the said advertisement respondent No. 1 submitted his application. As per clause 4 of the advertisement, it is stated that the age of the candidate for reservation category should not be more than 45 year's. The respondent No. 1 on the date of submitting application was 47 year's 6 month's and 14 day's. After screening test, inquiry was conducted. The candidature of respondent No. 1 is rejected on the ground that he is over age.
2) The respondent No. 1 aggrieved by the rejection of his candidature on the ground of age, filed Original Application bearing No. 775/2011 before the Maharashtra Administrative Tribunal, Aurangabad. The tribunal allowed the Original Application and directed the present petitioner to allow the respondent No. 1 to participate in the selection process and to give benefit of age relaxation to the respondent No. 1 as he possesses exceptional qualification. The petitioner has assailed the said judgement in the present writ petition.
3) Mr. Kulkarni the learned counsel for the petitioner strenuously contends that, the upper age limit as laid down in clause 4 of the advertisement, is 45 year's for the respondent No. 1 as he belongs to Special Backward Class Category. The petitioner had received about 18,000/- applications and when large number of applications are received the petitioner ::: Downloaded on - 24/12/2014 23:47:16 ::: 3 wp7679.14 Commission is not required to relax the age. The learned counsel for the said purpose relies on Rule 3 of the Maharashtra Educational Services Class I ( Administrative Branch ) Recruitment Rules, 1978. According to the learned counsel it is only if large number of applications are not received then only the Commission can consider about the age relaxation. According to the learned counsel all the persons who have applied are allowed to appear for the screening test and it is only thereafter the detail scrutiny is conducted of the candidates who are successful in the screening test and in said scrutiny it was found that the respondent No. 1 is over age. The clause of relaxation of age in the advertisement is in a different context. The tribunal has mis-read the same. According to the learned counsel even otherwise the qualification of the respondent No. 1 cannot be said to be an exceptional qualification. The Court has erroneously relied upon Clause 2 (B) of the Maharashtra Educational Services Class I (Administrative Branch) Recruitment Rules, 1978. The learned counsel relies on the judgement of the Division Bench of this Court in a case of Maharashtra Public Service Commission V/s Kisan Tukaram More and Others reported in 2011 (Supp.) Bom.C.R. 448.
4) Mr. Deshmukh the learned counsel for the respondent vehemently submits that, Rule 2 of the Maharashtra ::: Downloaded on - 24/12/2014 23:47:16 ::: 4 wp7679.14 Educational Services Class I (Administrative Branch) Recruitment Rules, 1978 provides for relaxation in age in case candidate possesses exceptional qualification. The same is made clear vide proviso to Rule 2 (B) of the said Rues. The petitioner possesses the qualification of degree in M.Com., B.Ed., M.Ed., Phd. and has also passed SET examination. No other candidate who is selected has got Phd. Degree. The qualification of the petitioner is an exceptional qualification which has been rightly considered. According to the learned counsel the normal function of the proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the perview of the enactment. The learned counsel relies on the judgement of the Apex Court in a case of Romesh Kumar Sharma V/s Union of India and Others reported in 2006 (6) SCC 510. The learned counsel further submits that, the tribunal has rightly considered that the qualification of the petitioner is exceptional one and is entitled for the benefit of Clause 4 (4) of the advertisement. The learned counsel further submits that, the petitioner has got exceptional experience as he is working on the establishment of Zilla Parishad for 20 year's, initially as a teacher and thereafter as Education extension Officer. The tribunal has rightly considered the case of the present respondent No. 1 and has rightly passed the order. The said order needs no interference.
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5) Before we advert to the submissions canvassed by the learned counsel for respective parties it would be appropriate to refer to the relevant Recruitment Rules.
"Rule 2 :-
Appointment to the post in Maharashtra Educational Service Class I (Administrative Branch) shall be made either -
(A) by promotion ofa suitable trained Graduate of proved merit in Maharashtra Educational Service Class II (Adminstrative Branch) or (B) by nomination from amongst candidates who -
(i) unless already in the service of Government of Maharashtra be not more than 40 years of age :
Provided that the age-limit may be relaxed in favour of candidates with exceptional qualifications and / or experience; and
(ii) possess - (a) Bachelor's Degree in at least Second Class or a Master's Degree of a recognized University;
(b) B. Ed. Degree in at least the Second Class or an equivalent qualification or M. Ed. Degree;
(c) experience of teaching, educational administration and / or inspection for not less than 7 year's, out of which , at least 5 years (inclusive of at least 3 years teaching experience) should be after obtaining the B.Ed. Degree; and
(d) possess adequate knowledge of Marathi:
Provided that for those who possess a Bachlor's Degree in Ist Class the requirement regarding experience may be relaxed to 5 years, out of which, experience of theaching after obtaining B.Ed. Degree should be of at least 3 years :
Provided further that preference may be given to candidates who possess higher qualifications, such as, Degree of M.Ed. Or a Doctorate in Education."::: Downloaded on - 24/12/2014 23:47:16 :::
6 wp7679.14 "Rule 3 :-
The qualification regarding experience / higher basic academic qualification is relaxable at the discretion of the Maharashtra Public Service Commission in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes and Denotified Tribes / Nomedic Tribes, if at any stage of selection, the Maharashtra Public Service Commission is of the opinion that sufficient number of candidates from these communities possessing the requisite experience / higher basic academic qualification are not likely to be available to fill up the vacancies reserved for them."
6) The undisputed factual matrix can be culled out as under :-
[1] The respondent No. 1 on the date of application was of 47 year's of age.
[2] The upper age limit for Special Backward Class candidate to be eligible to make application is 45 year's, however age relaxation can be granted in favour of a candidate having exceptional qualification and / or experience. The selection process is undertaken and the persons are selected from Special Backward Class Category having the necessary qualification. One Smt. Suchita Ramesh Rodge has qualification of D.Ed., B.A., B.Ed., M.A., M.Ed. and one Mahesh Jagannath Chothe ::: Downloaded on - 24/12/2014 23:47:16 :::
7 wp7679.14 has qualification of D.Ed., B.Ed., M.A., M.Ed., M.Phil. and SET.
7) The contention of the petitioner that as large number of candidates were available for screening test / interview in accordance with the prescribed age limit, the commission decided not to relax the age limit under provision of exceptional qualification / exceptional experience and for that purpose reliance by the learned counsel for the petitioner on Clause 3 of the Recruitment Rules is mis-placed. Rule 3 deals with relaxation of experience / higher basic academic qualification at the discretion of the petitioner Commission in case sufficient number of candidates belonging to the Scheduled Caste and Scheduled Tribe and / or De-notified Tribe / Nomedic Tribe are not available to fill in the vacancies reserved for them. As such Clause 3 would certainly not apply in the present factual context.
The age relaxation is permissible in respect of the candidates possessing exceptional qualification / experience. The aspect of age relaxation has no relevance with number of candidates available for screening test / interview.
8) The case of the age relaxation would be governed by Rule 2 of the Recruitment Rules. Rule 2 provides for the age limit that is the age and the qualification. Further proviso to said Rule 2 lays down that age limit may be relaxed in favour of ::: Downloaded on - 24/12/2014 23:47:17 ::: 8 wp7679.14 candidates with exceptional qualification and / or experience. Rule 2 would certainly be relevant in the present matter. The same will have to be considered qua the particular post. The word exceptional would in present context denote that which is better than usual and better than common. A person would be called exceptional if there was something supernormal about him. Such person can sometimes be described as marvelous, unparalleled. The word qualification would mean that which makes any person fit to do a certain act or that on satisfaction of which only the person in question could have been recruited.
Exceptional qualification would be such a qualification better than required which a person seldom would possess as a qualification which is not possessed generally by the persons possessing the required qualification. It is only if a person possesses exceptional qualification or experience proviso to Rule 2 of the Recruitment Rules can be invoked. Mere higher qualification is not synonymous with the phraseology exceptional qualification, they are distinct. These terms can not be used interchangeably.
9) Whether a particular qualification is an exceptional qualification, is to be considered by the authority considering the candidature of the person. Further it is for the Commission to consider whether the qualification of the candidate and / or the experience gained by him is an exceptional one or not. It would ::: Downloaded on - 24/12/2014 23:47:17 ::: 9 wp7679.14 not be within the province of the Court to hold the particular qualification to be an exceptional qualification or otherwise. The Courts can not be said to be a expert in academic matters. The tribunal certainly exceeded its jurisdiction while construing the qualification of the respondent No. 1 as an exceptional qualification and there by directing the petitioner Commission to give benefit of age relaxation to the respondent No. 1 and consider his candidature for the selection of the said post.
10) As observed above it is for the authority to consider the same. It should be best left to the authority to consider whether the respondent No. 1 possesses the exceptional qualification or not.
11) In light of that the judgement and order of the tribunal can not be sustained and deserves to be set aside. The same is hereby quashed and set aside.
12) The petitioner shall consider whether the respondent No. 1 possesses the exceptional qualification for the post of Education Officer that is the post for which applications are invited and respondent No. 1 had applied. It is only if the petitioner comes to the conclusion that respondent No. 1 possesses the exceptional qualification then only the petitioner ::: Downloaded on - 24/12/2014 23:47:17 ::: 10 wp7679.14 may consider the candidature of respondent No. 1.
[ V. K. JADHAV, J. ] [ S. V. GANGAPURWALA, J. ] ::: Downloaded on - 24/12/2014 23:47:17 :::