Bombay High Court
Rajesh S/O Shrirambapu Fate vs The State Of Maharashtra, Through Its ... on 28 September, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
Judgment wp1270.18
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1270 OF 2018.
Rajesh s/o Shrirambapu Fate,
Aged about 39 years, Occupation
Private, resident of A/p. Pohara,
Tah. Lakhni, District Bhandara. ... PETITIONER.
VERSUS
1. The State of Maharashtra
through its Secretary,
Ministry of Home, Transport
Department, Mantralaya,
Mumbai - 32.
2. Maharashtra Public Service
Commission, through its Chairman/
Secretary, Having its office at 5th, 7th and
8th floor Cooprej Telephone
Exchange Building, Maharshi
Karve Marg, Cooprej,
Mumbai - 400 021. ... RESPONDENTS
3. Abhijit Vasagade,
Malti Niwas, Lane No.19,
Jaysingpur 416101.
4. Zambre Jayadeep Tanaji,
Police Line, 50/12 Quarter,
Osmanabad.
5. Nandkumar Sawant,
A/P Bhose, Tal Pandharpur,
District Solapur 413315.
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6. Ganesh Patil,
56, Borole Nagar No.02,
Chopda,Tal-Chopda,
District Jalgaon 425107.
7. Suraj Kishorrao Kolhe,
At Post Dighi Kolhe,
Tal. Chandur Rly. District Amravati.
Pin 444904.
8. Satyajit Sarjerao Patil,
at Post Sakharle, Tal. Walwa
District Sangli 415414.
9. Nikita Kishor Jadha,
at post Nashik Road,
Tal. Nashik 422101.
10.Shri Sharikant s/o Arjun Patil,
aged about 38 years, Occ - Service,
resident of Central Bank colony,
Pimparala, Jalgaon, Tah. And
District Jalgaon.
11.Shri Sunil vishwanath Valgadde,
aged about 53 years, Occ - Retired,
resident of bahirewadi, Warnagar,
Panhala, Kolhapur.
12.Shri Narendrakumar Goverdhan Umale,
aged about 41 years, Occ - Retired,
resident of Flat No.303, Green Emrald-2
Wing N, Base, Shankarpur Road, Green
City, at Post Ghotad Panjari,
Nagpur.
13.Shri Kiran Anant Dhumal,
aged about 53 years, Occ - Retired,
resident of Near Warunji Grampanchayat,
Warunji, Karad, Satara.
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14.Shri Pramodkumar Govindrao Bandgar,
aged about 39 years, Occ - Retired,
resident of New Baijipura, Line No.22,
Aurangabad.
15.Shri Hanumant Popat Gele,
aged about 44 years, Occ - Retired,
resident of Paranda, Anala,
Osmanabad.
16.Shri Pradipkumar Ramchandra Birajdar,
aged about 41 years, Occ - Retired,
resident of Mangal Vedha,
Solapur.
17.Shri Bharat Tukaram Gorad,
aged about 40 years, Occ - Retired,
resident of Sangli, Miraj, Kupwad,
Sangli.
18.Shri Abhijit Shashikant Patil,
aged about 38 years, Occ - Retired,
resident of Ojhar, Niphad, Nashik.
19.Shri Malhar Ravsaheb Shinde,
aged about 48 years, Occ - Retired,
resident of Dighi, Pune.
20.Shri Nandan Uttam Raut,
aged about 38 years, Occ - Retired,
resident of Dehu Road, Pune.
21.Shri Andumbar Popat Gawali,
aged about 36 years, Occ - Retired,
resident of Vagholi, Pune. ... INTERVENORS
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Shri R.L. Khapre, Advocate for the Petitioner.
Shri A.M. Kadukar, AGP for Respondent No.1.
Shri C.S. Kaptan, Senior Advocate with
Shri K.P. Mahalle, Advocate for Intervenor / Respondent Nos.4 to 9.
Shri G.G. Bade, Advocate for Intervenor / Respondent Nos. 10 to 21.
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CORAM : B.P. DHARMADHIKARI
AND Z.A. HAQ, JJ.
CLOSED FOR JUDGMENT ON : 09.08.2018
DATE OF PRONOUNCEMENT : 28.09.2018
JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Looking to the fact that this is a second petition and the urgency shown by parties, the matter has been heard finally with consent by issuing Rule, and making the same returnable forthwith. This Court has on 12.06.2018, taken note of the contention of petitioner that respondents cannot relax minimum qualification prescribed by Central Government for appointment to the post of Assistant Inspector of Motor Vehicle and directed respondents to maintain status-quo. The recruitment process therefore, is held up.
2. Relevant legal provisions to be looked into are Section 213 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the 1988 Act" for short), and the Assistant Inspector of Motor Vehicles, Group 'C' in Motor Vehicle Department (Recruitment), Rules, 2016 (hereinafter referred to as "the 2016 Rules" for short). Question is
- Whether by 2016 Rules, the State Government has diluted ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 5 minimum qualifications prescribed by Central Government as per Section 213[4] of the 1988 Act ?
3. It is not in dispute that the petitioner had earlier filed Writ Petition No. 7239/2017, before this Court and after hearing the counsel for the petitioner and learned Government Pleader, in view of the fact that no advertisement for recruitment was then published, Court gave petitioner leave to file appropriate representation, and directed respondents to decide it in next two months. One of us (B.P. Dharmadhikari, J) is party to that order.
4. After this order, petitioner preferred representation and on 01.02.2018, respondents relied upon Article 309 of the Constitution of India, as also adjudication by the Maharashtra Administrative Tribunal in Original Application No. 615/2017 and rejected the representation. It is after this, that on 26.06.2018, present Writ Petition came to be filed. Petitioner challenges the advertisement dated 30.01.2017 and advertisement dated 01.07.2017, as contrary to legal provisions.
5. Shri Khapre, learned counsel appearing on behalf of the petitioner submits that in Writ Petition No. 7239/2017, decided on 13.11.2017, the later advertisement dated 01.07.2017 was not questioned and also was not pointed out. On the contrary, this ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 6 Court accepted statement made by the learned Government Pleader that there was no advertisement and hence, taking advantage of time becoming available, petitioner was asked to submit a representation. He contends that effort of this Court was to allow respondents to consider apparent illegality and to extend them an opportunity to correct the error. He has also taken us through the relevant provisions of Section 213[4] of the 1988 Act, to urge that said provisions requires Central Government to prescribe minimum qualification and accordingly those qualifications have been prescribed by the Central Government on 12.06.1989. As per it, the academic qualification as also working experience of one year mentioned in Clause [ii] and [iii] and requirement of holding a driving licence, authorizing holder to drive motor cycle, heavy goods vehicle and heavy passenger motor vehicles, is essential.
6. State Government has on 23.12.2016, framed Rules called as Assistant Inspector of Motor Vehicles, Group 'C' in Motor Vehicle Department (Recruitment), Rules, 2016, and in the process while adopting minimum qualification prescribed by the Central Government, also allowed certain exceptions by adding a proviso. He has invited our attention to facts pleaded in paragraph nos.6 to
11. He contends that respondents have diluted the minimum ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 7 eligibility norms thereby enabling the candidates disqualified under Central Rules to compete and get recruited. Forcing eligible candidates to compete with such favoured incumbents is itself against Article 14 of the Constitution of India.
7. He submits that such persons recruited without qualifications are paid salary but are not given duties till they obtain necessary qualifications/experience. This is nothing but, burden on public exchequer. He has for said purpose taken us through relevant grounds in the memo of Writ Petition.
8. He further adds that petitioner though qualified, and could have applied in response to the advertisement, was advised not to do so, as otherwise there could have been a defence of estoppel at threshold. He submits that earlier Writ petition filed by him and even later Writ Petition, show his intention to obtain recruitment with State Government and his conduct therefore, cannot be seen as prohibiting him from maintaining present Writ Petition. He contends that defence of respondent that as petitioner did not participate in selection process, he cannot maintain such a petition, is, therefore, unsustainable.
9. In so far as the defence of respondents based upon earlier Writ Petition or orders passed therein is concerned, he points ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 8 out that on 13.11.2017, when the Writ Petition No. 7239/2017, was disposed of, respondents themselves have pointed out that the petition was premature, as advertisement was not published and there was no step towards recruitment. He contends that this Court even in that situation found some substance in the challenge and hence, asked respondents to look into it. The said order therefore, does not and can not bar present Writ Petition.
10. The remedy of approaching the Maharashtra Administrative Tribunal has become redundant, because of findings of the Tribunal on the issue already reached in earlier round of litigation and hence, the correctness or otherwise of those findings needs to be examined in this petition only.
11. As the petitioner is not expected to compete with unqualified or ineligible persons, the earlier advertisement dated 01.07.2017, must be quashed and new advertisement needs to be issued. He states that even today petitioner is within age limit and can apply and his candidature, can be considered by respondents as per law. As persons not eligible and competent to occupy public post, are being recruited, this Writ Petition has got trapping of writ for quo-warranto, and it cannot be seen as merely as a writ challenging recruitment or a Public Interest Litigation in which a ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 9 service dispute falls for consideration. It is a question of ineligible persons being considered, appointed and spending of public money on them till they qualify. It is therefore, loss to State Exchequer.
12. Shri C.S. Kaptan, learned Senior Counsel with Shri Mahalle, learned Counsel for intervenors, strongly assails maintainability of the petition. He contends that petitioner lacs locus, since he did not participate in the selection process. He ought to have participated and then only he could have seen as an aggrieved person. Learned AGP for State and Shri G.G. Bade, learned Counsel for other intervenors, have adopted same line to oppose the petition.
13. They point out that first advertisement was published on 30.01.2017 and then second advertisement was issued on 01.07.2017. Petitioner filed Writ Petition No.7239/2017 on 31.10.2017, but, did not point out advertisement dated 01.07.2017. Main examination for recruitment was held on 06.08.2017, and as petition came to be filed about three months thereafter, there was suppression of material facts. The burden to point out second advertisement and written examination was upon petitioner, and he deliberately obtained an order of consideration of his representation. Shri Kaptan, learned Senior Counsel is relying on ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 10 the judgment reported at 2013 (4) SCC 465 (Ayaaubkhan Noorkhan Pathan .vrs. State of Maharashtra and others), to urge that such petition and such conduct of petitioner cannot be countenanced.
14. By placing reliance upon judgment reported at 1993 DGLS (SC) 459 (S.B. Noronah .vrs. Union of India), Shri Kaptan, learned Senior Counsel submits that in present Writ Petition, status quo has been obtained on 12.06.2018, through incomplete disclosure and that order therefore needs to be vacated forthwith. He is relying upon judgment reported at (2014) 15 SCC 308 (Madan Lal .vrs. High Court of Jammu and Kashmir and others), to urge that as there is no grievance against any particular candidate selected for recruitment, the hypothetical contentions raised by the petitioner cannot be looked into.
15. On merits, he submits that the proviso inserted by the State Government are at the end of main part of Rule 4 and it only takes care of exceptional situation when duly qualified candidates are not available or are less in numbers. He submits that while adding such a rider, the State Government has taken precaution to see that selected persons, not qualified as per Central Government specifications, do not function as Assistant Motor Vehicle Inspectors, ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 11 till they acquire that qualification. He has taken us through relevant clauses in the advertisement for this purpose.
16. Shri A.M. Kadukar, learned A.G.P. appearing for respondent State adds that he is relying upon reply-affidavit filed by respondent no.2. He points out that in competitive examination in 2001, only 2671 candidates applied and in 2013, there were only 4893 applications. Exercise by the State Government through notification dated 23.11.2016, is to increase competition and therefore, to enlarge the zone. This has been done only in public interest and the minimum qualifications prescribed by the Central Government are in no way compromised. He states that for preliminary examination in 2017, because of this exercise more than 69000 candidates applied in response to advertisement dated 30.01.2017, and 9870 out of them qualified for main competitive examination. This main or consequential exam was advertised on 01.07.2017. He therefore, submits that this manifold increase in number of aspirants justifies the need of proviso inserted by the State Government.
17. In reply arguments, Shri Khapre, learned counsel for petitioner submits that MPSC has in later advertisement published on 01.07.2017, indicated number of posts to be filled in as 833, ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 12 and as such the effort made by Government to relax the requirement of qualifications / experience is unwarranted. More than 5 candidates per post become available for consideration as per the Central Government qualifications.
18. He points out that after this Court granted interim relief in present matter on 13.04.2018, and petition was amended, second advertisement and so called select list has been brought on record on 12.06.2018. This Court has on 12.06.2018, restrained respondents from proceeding further. He has relied upon certain judgments again. He also submits that provisions of Section 213 of the 1988 Act, and similar controversy is looked into by the Hon'ble Supreme Court as also by the Karnataka High Court and defence like one raised by the present respondents is already rejected. He contends that similar view needs to be taken even in present matter.
19. Consideration here can begin with orders dated 13.11.2017 in earlier Writ Petition No.7239/2017 filed by this petitioner only. This Court has then taken note of contention of petitioner that when first advertisement was published, petitioner could not participate and that advertisement was after Rules allowing relaxation made by the State Government on 23.12.2016. This advertisement is issued on 30.01.2017. Petitioner then argued ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 13 that raising of a challenge (posed in Writ Petition No.7239/2017), after fresh advertisement would have adversely affected chances of the petitioner. The fact that such advertisement was already published at that juncture on 01.07.2017, was therefore, not disclosed to this court either by the petitioner or by respondents. Learned Government Pleader appearing for State Government then submitted that as there was no advertisement issued after first advertisement dated 30.01.2017, there was no occasion to maintain Writ Petition No. 7239/2017. This contention has been accepted by the Court. Considering the fact that advertisement was not issued and hence there was some time which would have been used to allow respondents to consider the grievance of petitioner, petitioner was given leave to make representation within two weeks and decision on that representation was to be taken in next two weeks. Petitioner accordingly also made representation and on 01.02.2018, that representation came to be rejected. The rejection is filed with the petitioner as Anneuxre-VII. State Government has submitted that it has not made any alteration in derogation of qualifications prescribed by the Central Government, and there was no violation of Section 7 of the 1988 Act. It has also pointed out that the Original Application No. 615/2017, was filed by one Manoj Chavan before the Maharashtra Administrative Tribunal at Nagpur and that it was ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 14 rejected on 06.12.2017. The advertisement issued was declared as per the Rules framed by the State Government under Article 309 of the Constitution of India. After this communication dated 01.02.2018, petitioner has approached this Court in present matter on 26.02.2018.
20. Petitioner has also placed on record copy of the representation sent by him and in it, he has pointed out by taking recourse to relaxation vide notification dated 23.12.2016, State Government was making effort to fill in 833 posts of Assistant Motor Vehicle Inspectors. Thus, this representation is on same day on which the Court has disposed of Writ Petition No. 7239/2017.
21. The advertisement published by MPSC on 30.01.2017, is for preliminary examination scheduled on 30.04.2017. Here total posts disclosed are 188. Later advertisement is for main examination. This advertisement is issued on 01.07.2017. It is consequential to earlier advertisement dated 30.01.2017, and preliminary examination conducted on 30.04.2017. This advertisement mentions that preliminary examination conducted on 30.04.2017 was for filling in 833 posts of Assistant Motor Vehicle Inspectors. This Advertisement or contents thereof are not in dispute.
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22. Thus, process which has begun on 30.01.2017, is continuing through this later advertisement issued on 01.07.2017. These two advertisements are therefore, complementary to each other and cannot be viewed independent of one another.
23. The communication sent by the respondents rejecting representation made by the petitioner expressly stipulates the judgment delivered by the Maharashtra Administrative Tribunal on 06.12.2017 in Original Application No.615/2017. In this connection, we may also point out that respondent no.2 MPSC has along with its reply affidavit, placed copy of order dated 24.10.2016, delivered at Bombay in Civil Writ Petition Nos. 10884/2015, 4049/2015 and other connected matters. There the Division Bench has accepted availability of an alternate remedy before the Maharashtra Administrative Tribunal and thus, refused to intervene directly in writ jurisdiction.
24. However, perusal of said order dated 24.10.2016, does not show that there the controversy presented to High Court was already looked into and decided by the Maharashtra Administrative Tribunal. Division Bench at Bombay, therefore, accepted the plea that grievance could have reached High Court only after Tribunal ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 16 decides the same. Here the Tribunal has already decided the same.
25. The order delivered by the Maharashtra Administrative Tribunal at Nagpur on 06.12.2017, in Original Application No.615/2017, is also produced before us by respondent no.1 State Government. There an identical issue, involving correctness or otherwise of relaxation while filling up posts of Assistant Motor Inspector and advertisement dated 30.01.2017, has been looked into. Preliminary objection to the tenability, as those petitioners had participated in selection process was raised by the State.
26. Maharashtra Administrative Tribunal has taken note of this preliminary objection in paragraph no.5 of its order/judgment dated 06.12.2017, and then looked into the provisions of Section 213 and the resolution of the State Government. In paragraph no.8, the Maharashtra Administrative Tribunal concludes that the State Government framed recruitment rules under Article 309 of the Constitution of India, advertisement was in consonance therewith and only those candidates who succeeded in the process conducted as per advertisement no.2/2017, were eligible to participate in subsequent process commenced as per the advertisement no.48/2017. The advertisement no. 2/2017 is dated 30.01.2017, while advertisement no.48/2017 is dated 01.07.2017. Because ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 17 applicants before the Maharashtra Administrative Tribunal participated in the process initiated as per the advertisement no.2/2017, the Maharashtra Administrative Tribunal has found that they had no locus to challenge the later advertisement.
27. This judgment of Maharashtra Administrative Tribunal is used by the State Government to take a decision on the representation of the petitioner on 01.02.2018. This decision is as per the directions dated 13.11.2017 in Writ Petition No.7239/2017. Reasons assigned by the Maharashtra Administrative Tribunal itself therefore stop respondents from challenging the locus of present petitioner, from urging that he ought to have participated in the recruitment process and then raised such challenge, or from pointing out alternate remedy. Respondents have assailed the locus of the applicants in Original Application No.615/2017 before Maharashtra Administrative Tribunal on the ground that they had participated in the selection process and it is accepted by Maharashtra Administrative Tribunal. Objection now that as petitioner Rajesh Fate in present matter did not participate in recruitment process and therefore he is estopped, is diagonally opposite and demonstrates a roving attitude. This somersault being taken by the model employer, therefore cannot be ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 18 countenanced.
28. Respondents also contend that there cannot be any public interest litigation in service matter. We have to therefore consider whether challenge before this Court can be looked into as a service matter or then it raises a larger issue. The advertisement published on 01.07.2017, vide advertisement no.48/2017, in Clause No.4.5, while prescribing qualifications, stipulates that if a candidate appointed, does not possess experience of one year as full time employee on last date prescribed in the advertisement, after his appointment and during probation, it would be obligatory for him to obtain such experience of one year in Department of State Government or in its Undertakings or in Institutes specified by the State Government. Clause 4.6 is on need of possessing licence. Clause 4.6.1 mandates such licence with candidate on last date prescribed in the advertisement. As per clause 4.6.2, selected candidate not possessing such valid licence is permitted to procure it within a period of two years after his selection i.e. during period of probation. Clause 4.6.3 mandates that in default, employee not securing such licence would be terminated. Clause 5 in the advertisement is about continuation after entry into the employment. Clause 5.1 lays down that the employee not ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 19 possessing experience or valid licence, will not be in a position to perform his duties and discharge the obligations of Assistant Motor Vehicle Inspector.
29. The contentions in advertisement mentioned supra therefore, show that a disqualified candidate can also join and hold the post and earn salary through public revenue, at least during period of probation of two years. This period of probation can also be extended by one more year. Hence, a candidate not fulfilling the requirement of Rules framed by the Central Government, is made eligible to earn full salary from public funds, that too without performing any work at least for two or three years. It is precisely this angle, which needs evaluation. We are here, satisfied that the loss being caused to public revenue cannot be ignored and challenge cannot be seen as a grievance pertaining to a service condition. Contention that it cannot therefore, be seen as public interest litigation, is misconceived. Its larger impact on Society due to hole in taxpayers money and omission to make requisite service available to the citizens, all necessitate cognizance by any writ court.
30. The facts giving rise to the controversy emerge from provisions of Section 213 [4] of the 1988 Act, Rules framed by the Central Government thereunder, and the 2016 Rules framed by the ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 20 State of Maharashtra. It is also not in dispute that the petitioner holds requisite qualification in terms of these provisions.
31. Minimum qualification for the post of Assistant Inspector of Motor Vehicle, is prescribed by the Central Government vide gazette notification dated 12.06.1989, which are as under :
"(1) Minimum general educational qualification of a pass in X standard; and (2) A diploma in Automobile Engineering [3 years course] or a diploma in Mechanical Engineering awarded by the State Board of Technical Education [3 years course]; and (3) Working experience of at least one year in a reputed automobile workshop which undertakes repairs of both light vehicles, heavy goods vehicles and heavy passenger motor vehicles fitted with petrol and diesel engines; and (4) Must hold a driving licence authorizing him to drive motor cycle, heavy goods vehicles and heavy passenger motor vehicles."
32. It is the contention of petitioner that the working experience of atleast one year and the requirement of possessing ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 21 driving licence cannot be waived or relaxed. State of Maharashtra, has on 23.12.2016 i.e. shortly before issuing advertisement No.2/2017, framed 2016 Rules. In those Rules, though the qualifications mentioned supra, are reiterated, by adding a proviso thereafter, the mandatory requirements are relaxed. Against the educational qualification prescribed, a proviso has been added which enables a candidate possessing such qualifications, as may be declared by the Central Government or State Government as "equivalent". In relation to practical experience of one year, the respondents have added a proviso which permits the candidate lacking experience to occupy a post of Assistant Motor Vehicle Inspector and to acquire the deficient experience before completion of the period of probation. The experience can be obtained in a workshop run by government undertaking or department or in a institution recognized by the government. Similarly, about possessing a licence on last day of submission of application, added proviso stipulates that candidate not possessing it, must obtain the same before completion of period of probation, failing which he is liable to be discharged from service. Rule 4 of the State Government Rules, 2016, prohibits such person from performing duties and accepting responsibilities as Assistant Motor Vehicle Inspector till he acquires the lacking experience or licence. ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 :::
Judgment wp1270.18 22 Pleadings of petitioner contained in paragraph no.6 of the Writ Petition in this respect are not in dispute.
33. Question before this Court is - Whether this relaxation of qualification norms under 2016 Rules, by the State of Maharashtra can prevail and permit candidates not otherwise eligible, as they do not hold experience or license stipulated by the Central Government Rules to participate in the process of selection ?
Petitioner submits that question is directly looked in to by the Hon'ble Supreme Court in a judgment reported at (1994) 4 SCC 391 (S.Satyapal Reddy and others .vrs. Government of A.P. and others). He also points out that this judgment of Hon'ble Supreme Court is considered by the Division Bench of Karnataka High Court on 23.09.2014, while deciding Writ Petition Nos. 6842- 6880 of 2010 (Mahesh A.C. s/o Chandregowda and others .vrs.The State of Karnataka and others), along with other connected matters. The judgment of Supreme Court is considered in paragraph no.21 of the Karnataka High Court. Paragraph no.7 of the judgment of Hon'ble Supreme Court is reproduced and finding of Hon'ble Supreme Court that the State Government may accept the qualifications prescribed by the Central Government or then ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 23 prescribe higher qualifications, but, in no case lesser/lower qualifications could be prescribed, has been taken note of. The Division Bench of Karnataka High Court, therefore, finds that the State Government cannot prescribe qualifications lower than one prescribed by the Central Government as per Section 213[4] of the 1988 Act. In facts before it, the Hon'ble Supreme Court has noted that the A.P. Transport Subordinate Service Rules were made by the Governor under Article 309 of the Constitution of India, and Rule 6 thereof prescribed a higher qualification. Hence, question of inconsistency or repugnancy under Article 254 of Constitution of India did not arise. The Karnataka High Court Division Bench in paragraph no.24 refused to accept the arguments that the appointees gained experience subsequent to their appointment. It found that the appointments were challenged before the Administrative Tribunal without any delay and appointments were set aside by the Administrative Tribunal. Karnataka High Court observes that the appointments cannot be sustained in law, as recruitment notification issued by the KPSC (Karnataka Public Service Commission), do not match even the minimum qualification required to be prescribed as per notification dated 19.06.1989 by the Central Government. The said Division Bench then relies upon the judgment of Hon'ble Supreme Court in case of (2010) 10 SCC ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 24 63 (M.S. Patil (DR.) .vrs. Gulbarga University), to note that appointments made illegally, cannot continue. The Karnataka High Court therefore, has set aside the appointment orders issued to all candidates who were not qualified. It has taken note of observations of Hon'ble Supreme Court in case of State of Haryana .vrs. Ramkumar Maan (1997) 3 SCC 321, to find that wrong action of government does not confer right upon any party to claim parity or equality. Judgment in case of Kuljeet Kaur .vrs. State of Punjab (2010) 11 SCC 455 is also used observing that Article 14 of the Constitution is not meant to perpetuate illegality.
34. Judgment of Hon'ble Supreme Court in case of S.Satyapal Reddy and others .vrs. Government of A.P. and others (supra), shows that the power of State Government under Sub- section [1] of Section 213 of the 1988 Act, allows it to prescribe a qualification higher than one prescribed by the Central Government under Section 213[4]. In the facts before it, the Hon'ble Supreme Court holds that the qualifications prescribed by Andhra Pradesh requiring Degree in Mechanical Engineering was a higher qualification than Diploma in Mechanical Engineering, prescribed by the Central Government. We have already taken note of this judgment of Hon'ble Supreme Court while appreciating the ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 25 judgment delivered by the Karnataka High Court on 23.09.2014, while deciding Writ Petition Nos. 6842-6880 of 2010,[supra].
35. The Central Government has prescribed the eligibility conditions on 12.06.1989, for class of officers consisting of category of Inspector for Motor Vehicles or Assistant Inspector on Motor Vehicles. This has been done in exercise of powers under Section 213 [4]. As per these eligibility conditions, minimum experience of at least one year in a reputed automobile workshop which undertakes repairs of both light vehicle, heavy goods vehicle and heavy passenger motor vehicle fitted with petrol and diesel engine, is essential. Similarly applicant must hold a driving licence authorizing him to drive motor cycle, heavy goods vehicle and heavy passenger motor vehicle. As against this, the State of Maharashtra has vide its notification dated 23.12.2016, notified the 2016 Rules. The qualifications or eligibility conditions is given in Rule 3 therein. In Rule 3[iii], while dealing with practical experience, a proviso has been added and it enables a person, not possessing such experience of one year, to acquire or complete the same before completion of period of probation in a workshop run by the government undertaking or department or any institution recognized by the government, from time to time. Thus, when working experience of ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 26 at least one year in a reputed automobile workshop is mandated by the Central Government as minimum qualification, this direction of State Government enables a person not possessing the experience to occupy the post and thereafter obtain experience.
36. A proviso has also been added at the end of Rule 3[iv], which dilutes requirement of possessing a valid driving licence. It similarly allows a candidate to obtain such driving licence before completion of period of probation.
37. Thus, by adding a proviso, persons not meeting the minimum qualification norms prescribed by the Central Government are made eligible to occupy a post of Assistant Motor Vehicle Inspector. Fact that in 2011, only 2671 candidates applied or then in 2013 only 4893 applications were received, when the number of Diploma holders in Automobile Engineering or Mechanical Engineer is larger, cannot be an excuse for this exercise. Submission that such qualification holders feel themselves superior, do not go to workshops or avoid such jobs in private employment, is again irrelevant. State Government could have pointed out its experience or practical difficulties to the Central Government and then requested it to prescribe suitable minimum qualification, so as to enable it to enact above mentioned exceptions ie two proviso, ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 27 permitting relaxation in norm regarding experience or licence.
38. Learned A.G.P. appearing for State Government, has pointed out that the persons selected and appointed as an exception due to above mentioned proviso, are restrained from performing the duties and shouldering the responsibility of the post of Assistant Motor Vehicle Inspector, till they gain the necessary experience or obtain driving licence. The stipulation to that effect in the advertisement vide Clause 5.1 is also taken note by this Court. This therefore, shows a direct loss to public revenue. It is to be noted that advertisement dated 30.01.2017 was for 188 posts, while later advertisement for completing remaining process in furtherance of said advertisement published on 01.07.2017, is for 833 posts. Respondents have not pointed that in State of Maharashtra it could not get suitable candidates as per qualifications prescribed by the Central Government even for 188 posts.
39. Several judgments have been cited before us. In (2018) 12 SCC 635 (Karnati Ravi and another .vrs. Commissioner, Survey Settlements and Land Records and others), the Hon'ble Supreme Court has held that participation in selection process operates as a bar to challenge it, when procedure followed for selection though not prescribed, is not contrary to ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 28 Rules. In (2016) 14 SCC 18 (Veerendra Kumar Gautam ..vrs. Karuna Nidan Upadhyay and others), plea of estoppel has not been accepted, as two earlier Writ Petitions were withdrawn since 17 other identical petitions were pending. It is in this backdrop, that other judgments cited by the parties need to be considered.
40. Petitioner has placed reliance upon judgment of Constitution Bench of Hon'ble Supreme Court reported at AIR 1959 SC 149 (Basheshar Nath .vrs. Commissioner of Income Tax and others) (paragraph no.14), to urge that the right to assail action of State Government in further diluting the qualification norms cannot be waived by a person either by participation in selection process or by non-participation therein. In view of the discussion supra, it is not necessary to discuss this judgment at more length in present matter. Loss to public exchequer by recruiting unqualified persons and paying them wages without any work is definitely a wrong which can be brought to notice of this Court by anybody including the present petitioner. (1987) 1 SCC 227 (Shivajirao Nilangekar Patil .vrs. Dr. Mahesh Madhav Gosavi and others), is the judgment which deals with the importance of such grievance in relation to public employment. Shri Khapre, learned counsel for the petitioner has placed reliance upon paragraph no.36 to urge that ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 29 when recruitment of an unqualified person is pointed out to this Court and such persons are given full salary without any work, the Court may intervene, is supported by the observations of the Hon'ble Supreme Court.
41. 2005 (1) BCR 893 (Maharashtra Regional Board of Education and Junior Colleges .vrs. Presiding Officer, Additional School Tribunal and others), is the judgment delivered by the Single Judge of this Court. There recruitment against a post becoming vacant on account of wrongful termination is found subject to adjudication of validity or otherwise of such termination. Again here, as interim orders are operating it is not necessary to dwell upon this ruling.
42. (1995) 6 SCC 326 (Hindustan Level Limited .vrs. Ashok Vishnu Kate and others), deals with provisions of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 and power of Labour or Industrial Court under it to grant preventive interim relief. It holds that an unfair labour practice about to take place can be prevented by appropriate interim relief, in view of the powers under Sections 28 and 30 of the said Act. We find the ruling not very relevant, however, the observations of the Hon'ble Supreme Court show that it is better to ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 30 prevent a malady, than to cure it.
43. Judgment reported in case of S.B. Noronah .vrs. Union of India (supra), shows that a person invoking the extra ordinary jurisdiction must approach the Court with clean hands. Judgment in case of Madan Lal .vrs. High Court of Jammu and Kashmir and others (supra), reveals that if there is no grievance against any of the selected candidates, the challenge could not have been looked into in Public Interest Litigation. Consideration in paragraph nos. 7 and 8 of the said judgment reveals that there grievance of appellant related to ascertainment of quota for direct recruit posts and the Hon'ble Supreme Court has found that as there was no challenge to the selection, its consideration could have been only in Public Interest. Such Public Interest Litigation, therefore, is held not maintainable.
44. Here we have already found that the petitioner Rajesh has not participated in selection process in response to the advertisement dated 30.01.2017, and he has given "personal reasons" for not appearing therein. Those reasons are not disclosed. After orders of this Court dated 13.11.2017 in Writ Petition No.7239/2017, and after his representation has been turned down, there is no fresh advertisement. The other advertisement dated ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 31 01.07.2017, cannot be seen as an independent advertisement and it is part of and further processing of recruitment which has commenced due to advertisement dated 30.01.2017. When petitioner does not prefer to respond to the advertisement dated 30.01.2017 for personal reasons, he could not have participated even in response to later advertisement dated 01.07.2017. In Writ Petition No. 7239/2017, disposed of by this Court on 13.11.2017, petitioner no where pleaded that he wanted to participate in the recruitment process. He did not blame wrong qualification norms, resorted to by respondents as the reason for his non-participation. He made a conscious decision and did not participate for personal reasons and not to avoid any technical plea of estoppel. In that Writ Petition, which was presented on 31.10.2017, he restricted challenge only to 2016 Rules and did not challenge the advertisement dated 30.01.2017 at all. In fact there is no mention of said advertisement in that Writ Petition.
45. In present Writ Petition in paragraph no.2, petitioner has stated that respondent through MPSC issued an advertisement for filling up 833 posts and petitioner did not participate in said recruitment process for "some personal reasons". He has then mentioned that because of said recruitment process, he learnt about ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 32 the 2016 Rules. Thus, his pleadings about "cause" or "injury" in this respect are not very consistent.
46. When he filed present Writ Petition on 26.02.2018, again prayers in this petition and earlier writ petition were identical. There was no prayer for quashing the preliminary advertisement dated 30.01.2017 or further advertisement dated 01.07.2017. Those prayers have been added by amendment on 13.04.2018. Thus, a person who on oath states that he did not apply for recruitment on personal grounds then, without any explanation attempts to challenge the preliminary advertisement and further advertisement.
47. In view of these facts, Shri Kaptan, learned Senior Counsel has contended that the petitioner is not an aggrieved person and lacks locus. He has relied upon judgment reported at (2013) 4 SCC 465 (Ayaaubkhan Noorkhan Pathan .vrs. State of Maharashtra and others), particularly paragraph nos. 9, 10, and 15 to 17. Shri Khapre, learned Counsel has relied upon judgment of Hon'ble Supreme Court reported at AIR 2014 SC 246 (Central Electricity Supply Utility of Odisha .vrs. Dhobei Sahoo and others), particularly paragraph no.18; AIR 1998 SC 1153 (Dr. Mrs. Meera Massey .vrs. Dr. S.R. Mehorotra and others), to ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 33 contend that petitioner possesses necessary locus. Shri Khapre, learned counsel in order to show defects in the advertisement has invited our attention to judgment reported at AIR 1990 SC 2023 (Dr. Suresh Chandra Verma and others .vrs. The Chancellor, Nagpur University and others), and to show that how the present petitioner need not approach the Maharashtra Administrative Tribunal, he has placed reliance upon judgment reported at AIR 1997 SC 3277 (K. Ajit Babu and others .vrs. Union of India and others). To urge that for considering the larger impact of the mischief played by the State Government, Court must intervene, he seeks support from Full Bench judgment of Nagpur High Court reported at AIR 1955 NAGPUR 49 (Kanglu Baula Kotwal and another .vrs. Chief Executive Officer, Janpad Sabha and others).
48. When petitioner has not challenged the advertisement in Writ Petition No. 7239/2017, this Writ Petition cannot be viewed independent of order dated 13.11.2017 in earlier Writ Petition. Preliminary advertisement and main advertisement were all issued before Writ Petition No. 7239/2017 was filed in High Court on 31.10.2017. We therefore, do not find it necessary to delve into various judgments mentioned supra. It follows that the petitioner cannot be permitted to challenge the advertisements dated ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 34 30.01.2017 and 01.07.2017. However, that does not preclude him from challenging the dilution in qualifications effected by the State Government for recruitment as per 2016 Rules for the post of Assistant Inspector of Motor Vehicle. He is a citizen and also qualified, as per norms prescribed by the Central Government to compete for it.
49. However, the impact pointed out to this Court on public revenue cannot be overlooked. The judgment of Hon'ble Supreme Court in case of S.Satyapal Reddy and others .vrs. Government of A.P. and others (supra) and judgment of Division Bench of Karnataka High Court in Writ Petition Nos. 6842-6880 of 2010 dated 23.09.2014, squarely bring on record the error committed by the State of Maharashtra in adding proviso to its Motor Vehicle Department (Recruitment) Rules, 2016, which in effect permit persons not possessing necessary experience or not possessing necessary licence, to hold a government post. This prejudices consideration and defeats rights of those who satisfy the norms laid down by the Central government. The proviso added at the end of Rule 3[iii] and [iv] in 2016 Rules, are therefore unsustainable. Not only this, Rule 4 of the 2016 Rules, which allows such person to receive full salary sitting idle without any responsibility and work ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:44:55 ::: Judgment wp1270.18 35 load, is also unsustainable.
50. Accordingly though the petitioner can not get any relief for himself, we quash and set aside the said proviso at the end of Rule 3[iii] and Rule 3[iv] and also Rule 4 of the 2016 Rules.
51. Consequently, we direct respondents to choose and select from the aspirants who have participated in selection process, only such candidates who fulfill the requirements of practical experience and driving licence, as per the qualification prescribed by the Central Government ie as per substantive part of Rule 3[iii] and Rule 3[iv] of 2016 Rules.
52. In view of above discussion and observations, Writ Petition is partially allowed. Rule is made absolute in aforesaid terms with no order as to costs.
50. Civil Application No. 1853/2018 moved by respondent no.1 State Government for vacating the status-quo order dated 12.06.2018, is accordingly rendered infructuous. The same is rejected.
JUDGE JUDGE
Rgd.
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