Full Judgment Text
2017:BHC-AS:4341-DB
Judgment-WP.6762.2015+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6762 OF 2015
Mrs. Manisha Umaraosing }
Chavhan } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6772 OF 2015
Mehetre Ravindra Bapu } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6773 OF 2015
Chalak Utreshwar Sakhari } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6776 OF 2015
Misal Dattatray Pilaji } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6777 OF 2015
Mache Ashok Babusaheb } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6778 OF 2015
Mane Devanand Dnyandev } Petitioner
versus
State of Maharashtra and Ors. } Respondents
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WITH
WRIT PETITION NO. 7751 OF 2015
Gaikwad Samrudhi Dilip } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 9161 OF 2015
Khedkar Kishor Bhujang } Petitioner
versus
The Municipal Corporation of }
Pimpari Chinchwad and Ors. } Respondents
Mr. Sandeep Marne i/b. Mr. R. N.
Gambhire for the petitioners in Writ
Petition Nos. 6762/2015, 6772/2015,
6773/2015, 6776/2015, 6777/2015,
6778/2015, 7751/2015 and 9161/2015.
Mr. P. G. Sawant – AGP for respondent
no.1 (State).
Mr. Prathamesh B. Bhargude for
respondent no. 4 in WP/6762/2015 and
6772/2015.
Mr. K. S. Bapat with Mr. G. H. Keluskar
for respondent nos. 1 and 2 in
WP/9161.2015.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
DATED :- FEBRUARY 9, 2017
ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. Heard. Rule in all the petitions. Respondents waive service.
By consent, Rule is made returnable forthwith.
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2. By these petitions under Article 226 of the Constitution of
India, the petitioners claim to be successful in their educational
career, duly qualified and yet not selected for a post of Assistant
Civil Engineer in the Municipal Corporation of Pimpri Chinchwad.
3. That Municipal Corporation, through its Commissioner, has
selected candidates for appointment, but according to the
petitioners, all such selected candidates do not fulfill the
eligibility criteria.
4. Both sides state that the facts and circumstances in all
these matters and the issue involved is common and therefore,
each one of them can be disposed of by this judgment.
5. We proceed on the above lines and take the facts from one of
the petitions, which was argued by Mr. Marne.
6. The petitioner in Writ Petition No. 6762 of 2015 is one
Mrs.Manisha Umaraosing Chavhan. She has filed this petition
aggrieved and dissatisfied with her non-selection to the post of
Assistant Civil Engineer, on the establishment of the Pimpri
Chinchwad Municipal Corporation. The petitioner states that she
has applied pursuant to an advertisement. That advertisement
was for various posts, including Assistant Civil Engineer. The
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st
circular/advertisement no. 473 of 2015 dated 31 January, 2015
sets out the rules so also the criteria, particularly in relation to
the education qualification and experience, copy of which is
annexed as Annexure 'A' to the petition.
7. The petitioner in this writ petition states that there was a
category and carved out for ladies. That is how she made an
application for appointment to the post of Assistant Civil
Engineer (Ladies). She claims to be belonging to “Vimukta Jati
(A)”, which is styled as such by the State of Maharashtra
pursuant to a Government Resolution issued in that regard. The
petitioner annexed certain documents with her application, such
as certificates passing of the S. C. C. (Xth Standard) and H. S. C.
(XIIth Standard) examination, certificate of Construction
th
Supervisor of June, 2013, experience letter dated 19 May,
2015, caste certificate and caste validity certificate etc.
8. It is common ground that the second respondent conducted
th
a written examination on 29 March, 2015. The results of the
th
same were displayed on 20 April, 2015. The petitioner relies
upon this list styled as merit list. She says that her name
nd
appeared at Sr. No. 9. Her documents were verified on 22 May,
2015. Thereafter, the select list and waiting list was displayed.
th
That is dated 29 June, 2015. The petitioner states that she duly
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qualified in the written examination having obtained 136 marks,
but she was not appointed. It is her grievance that she is very
experienced and respondent no. 2 failed to appreciate the same
and selected another candidate having lesser marks of the same
category.
9. The petitioner states that a letter was written by her
requesting for explanation and seeking a hearing as to how a
candidate securing 128 marks has been appointed and not the
petitioner, who has secured 136 marks. The application under
the Right to Information Act, 2005 was also made seeking some
information in relation to the selection process.
10. The argument is that the respondent-municipal corporation
did not respond to this application. The petitioner has, therefore,
not only arrayed the public body, but has added as party even a
selected candidate by virtue of an amendment.
11. An affidavit in reply has been filed on notice being
issued. The writ petition is opposed by pointing out that the
petitioner in this petition and other petitioners are trying to stall
the recruitment process. That recruitment process was
commenced because this court was seized of a public interest
litigation being PIL No. 207 of 2010. The issue of illegal and
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unauthorised constructions in the municipal limits was
th
highlighted. This court passed a detailed order on 6 February,
2015 directing demolition of illegal constructions within a time
bound frame. At that stage, the municipal corporation expressed
its difficulty of not having the requisite manpower. The State
Government was, therefore, directed to sanction additional posts
and the current exercise is a result of that sanction of the State
Government. That is how Assistant Civil Engineers are required
to be recruited emergently. Today, a grievance is made that this
process is stalled and because of an ad-interim order passed by
this court.
12. The principal contention in the affidavit in reply is that the
written examination was not the only mode of judging the merit
of the candidate, but the advertisement required the candidate to
fulfill a criteria of experience. Thus, the candidate must possess
an additional qualification and as mentioned in Condition No. 1.3
of the advertisement. The applications were received on-line.
The candidates were allowed to appear at the written
examination without scrutiny of their documents of qualification
and experience. These posts are responsible posts. The work
experience is contemplated for the purpose of effective working
because Pimpri Chinchwad Municipal Corporation is spread over
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a huge area, within the limits of which, every construction
activity and undertaken on a large scale is to be monitored and
illegalities have to be checked. Therefore, there should be a real
experience, which would enable the municipal corporation to
recruit skilled engineers. The petitioner’s documents were
verified and the authority came to a conclusion that she does not
have the work experience of two years. The experience that is
claimed is holding of a post or employment purportedly as
supervisor, but held prior to the passing of the qualifying
examination. This has, therefore, not been taken into
consideration. Apart therefrom, the petitioner claims to have
worked with one M/s. Sanskruti Construction Company for a
th th
period of nearly three years, that is from 15 June, 2012 to 19
May, 2015. The petitioner completed the course of Construction
Supervisor (course of one year duration), for which, the
examination was conducted in June, 2013. The examination
rules of the Maharashtra State Board of Vocational Education
contemplates the attendance of minimum 75% of the total
lectures/periods, including, theory, practical, term work,
tutorials and project work, separately in each and every subject
as per the teaching scheme of the Board. When the petitioner
th th
claims that she worked continuously from 15 June, 2012 to 19
May, 2015, then, it is doubtful as to whether she has undertaken
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the required course of study and fulfilled the requirement of
minimum attendance and project work etc. It is this aspect of the
matter, which, according to the respondents, disqualifies the
petitioner from holding the post. The petitioner is accused of
having approached this court with unclean hands.
13. A rejoinder affidavit has been filed by the petitioner and in
which, what is being urged is that a perusal of the advertisement
st
dated 31 January, 2015 shows that under the columns
“Education Qualification” and “Experience”, the candidate ought
to have cleared the S. S. C., Civil Engineering Assistant course
from Government recognized industrial training centre or
institute and two years work experience. The condition of two
years’ experience is independent of the educational qualification.
That is how reliance is placed on the judgment of the Hon’ble
Supreme Court of India, which, according to the petitioner, lays
down a principle that there is no difference between experience
before acquisition of qualification and after acquisition. When
there is no connection between experience and qualification,
experience earned prior to acquisition of the qualification is also
required to taken into consideration. Absent such a provision or
stipulation, the experience gained in the present case cannot be
discarded.
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14. That is how the petitioner claims to be qualified and fully
eligible to hold the post. The rest of the statements in the
affidavit in rejoinder contain denials.
15. Mr. Marne learned counsel appearing for the petitioners
would submit that there is a common theme and underlying the
decision of the municipal corporation impugned in this case. He
would submit that the municipal corporation has proceeded on an
erroneous footing and its understanding of the advertisement and
conditions incorporated therein is contrary to law. He would
submit that now as an afterthought the credentials of the
petitioners are doubted. Those selected also do not pass the test
and as is projected by the respondents. The advertisement
simply stated that there should be a certain course of one year
duration, which should be undergone by a candidate. Secondly,
he/she must possess work experience. The advertisement does
not say and expressly that such experience has to be gained after
the educational qualification. Therefore, it is erroneous and an
after thought to now rely on the above stipulation. In any event,
that runs counter to the settled principle and that is to be found
in the three Judge Bench judgment in the case of Anil Kumar
1
Gupta and Ors. vs. Municipal corporation of Delhi and Ors. and in
2
the case of B. Ramakichenin Alias Balagandhi vs. Union of India .
1 (2008) 1 SCC 128
2 (2008) 1 SCC 362
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16. On the other hand Mr. Bapat learned advocate appearing
for the municipal corporation and the Municipal Commissioner
would submit that this court is exercising its jurisdiction under
Article 226 of the Constitution of India. This jurisdiction is
equitable and discretionary. None can claim as of right a relief in
such jurisdiction. In this case, there is a genuine doubt about the
fulfillment of the eligibility criteria. The petitioners in these
petitions are not found to have undergone the courses and their
certificates do not evidence that they attended any classes,
submitted any projects and fulfilled the other criteria, which is
evolved by the Maharashtra State Board of Technical Education
or the Maharashtra State Board for Vocational Training and
Examinations. Once there is a statutory board and which
prescribes the requirement for such a course, then, none of these
petitioners have produced the relevant and germane material
evidencing completion of such course. Secondly, even the
certificates that have been produced and some of which are not
available with the candidates at the time of verification and
scrutiny make an interesting reading. Some of the candidates
have worked, according to them, as a part of the management
team before completion of the course, supervised a site, where
some work was going on. The projects and as highlighted in the
appointment orders or the experience certificates do not indicate
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that they were undertaken or in pursuance of which, there was
an appointment made. There is a serious doubt as to how such
certificates were issued without even the educational
qualification being set out therein or taking note of the
requirement of the job. There is, thus, a genuine and bonafide
dispute raised by the municipal corporation. It is in these
circumstances, he would submit that in writ jurisdiction,
particularly in the absence of any arbitrariness, discrimination or
malafides, this court should not interfere with the discretion of
the administrator. It is the administrator's choice and right not
to appoint such persons and on a public post. There is no vested
right and merely because somebody is successful in the written
examination it does not mean that he should straightaway be
placed in the select list. He would submit that for the aforesaid
reasons the writ petitions be dismissed.
17. If we take the facts from Writ Petition No. 6762 of 2015,
what we have is a copy of the advertisement on the record of that
writ petition at page 14. That says that the post is Assistant Civil
Engineer. The pay scale is notified. The candidate must be S. S. C.
(Xth standard) passed. The candidate must possess a civil
engineering course clearance certificate from a Government
recognised industrial training institute or a Government
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industrial training institute itself. The certificate must evidence
that such a course has been cleared. Then, two years' work
experience is required.
18. The other stipulations are pertaining to the age etc. It is
nd
common ground that the applications were to be received from 2
th
February, 2015 to 16 February, 2015. All the applications were
to be received on-line. The testimonials and certificates were to
be annexed. There is no age bar for in-service candidates.
Pursuant to such an advertisement and which contains other
conditions to be found at page 16. That the same sets out
guidelines as to how the application forms have to be filled in. It
also states that there would be a written test. A reference to the
written test is to be found at clause 3.1. It is to judge and test the
education qualification, the nature of working experience and
common general knowledge, knowledge of language and that
examination will carry 200 marks. Then, the selection process is
set out in clause 4. Clause 4.1 says that there would be a display
of merit list and which would indicate the marks obtained. The
candidates would be listed in the order of merit. It is thereafter,
the scrutiny of papers and documents would be undertaken only
of those candidates whose names are set out in the merit list.
Then, what has been set out are the general conditions. What has
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then been placed on record is a copy of the on-line application.
Petitioner Chavhan Manisha Umaraosing, in the application,
th
states that she is born on 15 September, 1986. She belongs to
Banjara Vimukta Jati. She has been residing in Osmanabad
District. Her address and for contacting and other purpose,
including correspondence is that of Government ITI, Pardi Road,
Bhoom, Taluka Bhoom in the State of Maharashtra. The other
details need not concern us save and except what she says is that
she has cleared her Maharashtra State Board Secondary School
th
Certificate examination in the year 2002. She has cleared 12
Standard examination in 2004 and she has cleared the
examination conducted by the Maharashtra State Board of
Vocational Education, Mumbai in 2013. She has also a certificate
evidencing her familiarity with computers. She states that she
th
has worked, as far as work experience is concerned, from 15
th
June, 2012 to 15 February, 2015 with M/s. Sanskruti
Construction Company, Bhoom. Then, what we have is the S. S. C.
th
certificate, copy of which is at page 25 of the paper book. The 12
Standard clearance certificate is at page 26. At page 27, what we
have is a certificate issued by the Maharashtra State Board of
Vocational Examination in respect of the one year course,
namely, Construction Supervisor. The training for the certificate
course in Construction Supervisor of one year is supposed to have
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been undergone by this petitioner and the examination was held
in 2013. Pertinently, the certificate is silent with regard to the
educational institution from which this one year course was
completed. Then, we have a certificate issued by the
Maharashtra State Board of Vocational Examinations and in
some cases, including this, what we find is that though the
certificate says that the petitioner has successfully completed the
certificate course in Construction Supervisor, the course is of one
year duration and she has passed the examination in first class in
2013. The Chairman has signed the certificate, there is a number
attached to this certificate, but the date of issue of such certificate
is not mentioned. Then, what we have is the certificate issued on
th
19 May, 2015 by M/s. Sanskruti Construction Company. That
says that the petitioner was working with their organisation for 2
years and 11 months as site supervisor and drawing the salary of
Rs.55,000/- per month. What we have, therefore, to see is
whether this is a document which could be relied upon to grant an
opportunity to the petitioner to serve the Pimpri Chinchwad
Municipal Corporation as an Assistant Civil Engineer. The
advertisement for the recruitment to that post was published on
st nd
31 January, 2015. The applications could be submitted from 2
th
February, 2015 to 16 February, 2015. The petitioner submitted
th
her application and on-line dated 15 February, 2015. She states
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th th
that from 15 June, 2012 to 15 February, 2015, she was
serving this company as a site supervisor. She does not mention
her residential address, but mentions the address of Government
ITI, Bhoom in the State of Maharashtra. The petitioner is
supposed to have already completed this certificate course in
2013. She is supposed to have been working, during the period
while undertaking this course, with this Sanskruti Construction
Company. This Sanskruti Construction Company issues a
th
certificate on 19 May, 2015. This certificate may have been
issued later on, but when its scrutiny was undertaken, the
administrators have scrutinised this document and
contemporaneously with other record. While there is no dispute
that the petitioner may have cleared her S.S.C. and H. S. C.
examinations, there is nothing pointed out in the writ petition,
which would enable us to conclude that the petitioner attended
either Government recognised industrial institute or a
Government training institute itself. If what the petitioner states
in her application is correct and she has, for the purpose of
correspondence, set out this address, then, what we have before
us is a very curious fact and that is evident from the cause title of
the petition, that the petitioner is serving and her address is
Government ITI, Pardi Road, Bhoom, Taluka Bhoom, District
Osmanabad. If we take this as a residential address, then, what
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the petitioner says and on oath is that the petition is affirmed at
Pune. The petitioner is supposed to be a resident of District
Osmanabad. Which institute she attended, how, therefore, she
was eligible to appear for examination for the certificate course
and passed it with flying colours has not been set out.
Pertinently, Mr. Bapat relies upon the Rules for Admission to
Examination, Passing Condition, Issue of Statement of Marks,
Certificates and Duplicate Certificate, which rules are styled as
Maharashtra State Board of Vocational Education Rules
applicable for certain courses. The rules regarding admission to
an examination/ eligibility for appearing in examination are
Rules 5 and 6. These Rules read thus:-
“Rule–5. Admission to an Examination/Eligibility for
appearing in examination:-
No candidate will be admitted to any examination unless, he
took admission in the institute recognized by the Directorate
of Vocational Education, Maharashtra State or affiliated to
the Board of Vocational Examination and he has filled in
examination form along with prescribed examination fees
and it is certified by DVETO/Head of Institute that he had
fulfilled following conditions. Except direct examination
candidates who are already bonafide students of Pre. S. S. C.,
bifocal or H. S. C. (Voc.) scheme or passed it.
The Candidate has given satisfactory attendance of at least
75% of the total Lecture/Periods including each
Theory/Practical/Term work/Tutorials/Project work
separately in each and every subjects as per the Teaching
scheme of the Board.
Rule-6. Condoning deficiency in attendance
In case the attendance of a candidate falls short by not more
than 10% due to the circumstances beyond his control, the
head of the institute may condone such deficiency at his
discretion and permit the candidate to appear for
examination, if he is otherwise eligible.”
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19. Then, what we have is the requirement, which has to be
fulfilled. That is a very important requirement, namely,
Assessment of Term Work/Sessional/Practical/Project
Work/Oral/any other head. Once the institute and which has to be
attended must be recognised by the Government or must be the
Government institute itself, then, in the absence of this very
relevant and germane material, we do not think that the
Municipal Commissioner was obliged to select or appoint a
candidate like the petitioners. That everybody who is selected
and is likely to be appointed has gone through a similar process is
no answer. One wrong or one error committed by the authority or
an administrator does not mean that on that basis the petitioners
can claim a vested right. We do not think that the writ
jurisdiction permits perpetuation of a wrong or an error. There
cannot be equality in illegality. In the facts and circumstances of
the case, we do not think that this argument has any merit.
In the rejoinder affidavit, what is urged regarding the
20.
specific stand taken by the municipal corporation expressing
doubt about the genuineness of the documents relied upon, that
the experience of a candidate has to be after acquisition of the
educational qualification, is a plea raised as an afterthought.
Beyond this, nothing has been stated in the rejoinder affidavit,
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which would evidence that the petitioners have cleared the
certificate course from recognised institute/Government ITI with
the criteria and rules for examination being complied with.
21. Equally, we do not find any merit in the contention that
because such petitioners are toppers, they deserve to be
appointed by condoning any lapses and particularly in fulfilling
the criteria of experience. If the requirement is as above, then,
the argument that such toppers should not be overlooked does
not deserve any acceptance. Which merit the petitioners speak
about and highlight is unclear to us. A merit in their case is only
of attaining good marks in the written examination conducted by
the Pimpri Chinchwad Municipal Corporation. They may have
obtained very good marks in the written examination and as
highlighted by Mr. Marne, but that does not mean that they are
toppers. They can be termed as toppers only when they show us
certificates of completion of vocational training or industrial
training from recognised institute. The certificate and which is
highlighted and which shows that they have passed the course
with flying colours does not denote that they attended any
recognised institute by fulfilling the eligibility criteria of
attending theory, practical, term work etc. In these
circumstances, the administrators cannot be faulted for
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overlooking and not appointing candidates like the petitioners.
There is a discretion, which vests in them and they have chosen
not to appoint candidates whose claims are doubtful. Some of the
claims can be termed as bogus and dubious. Now a days, we see
that every attempt is made to highlight such achievements and to
gain public employment. Such inflated claims are made by
relying on dubious documents. At such a young age if this act is
mastered, then, we do not think that candidates producing and
relying on documents, whose contents are questionable or
disputable should be appointed on a public post. Such candidates,
who are frequently obtaining certificates from all corners of the
State do not deserve to be appointed. The writ jurisdiction is not
meant to overturn the decisions of the statutory authorities and
which are taken during the course of administration for they
have to select eligible candidates. They are responsible for such
decisions as they are discharging public functions and performing
a public duty. They cannot be directed to appoint candidates
whose claims are suspicious. We do not think that given the
above facts and circumstances, we would be required to go into
any larger issue. We do not think that our discretion should be
exercised. In favour of the petitioners herein.
22. Our attention was invited to a decision of the Hon'ble
Supreme Court of India in the case of Anil Kumar Gupta (supra).
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What has been stated and observed in that case is that the
Municipal Corporation of Delhi invited applications for filling up
posts of Assistant Engineer (Civil). The essential qualifications
for appointment were degree in Civil Engineering and two years'
professional experience. Pertinently, that was a degree course.
The norms were prescribed for awarding marks. The list of 60
candidates was prepared and 44 were placed in the waiting list.
The unselected candidates filed a writ petition in Delhi High
Court, which was dismissed by a learned Single Judge. The
Letters Patent Appeals were preferred and some fresh petitions.
The Division Bench of the Delhi High Court found that this is a fit
case where a retired Judge should be appointed so as to verify
whether the allocation of marks by the municipal corporation to
the various candidates was in accordance with the norms fixed.
The retired Judge was appointed, who once again went through
the record and heard the candidates. Based on his report, the
court scrutinised the select list. The Division Bench, then came to
the conclusion that the candidates who were found to be eligible
and appointed by the Municipal Corporation of Delhi and later on
found by the retired Judge to be ineligible for appointment may be
allowed to continue in service. The candidates, who were found
ineligible by the Municipal Corporation of Delhi and later on found
by the retired Judge to be eligible for appointment and who have
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approached the High Court within reasonable time should be
accommodated by giving them employment against existing
vacancies. The candidates, who were found by the retired Judge
to be ineligible for appointment on the ground that they had
obtained employment by producing false/fictitious certificates,
should be cashiered.
23. It is in these circumstances that the cases were taken up in
this order for scrutiny by the High Court and those aggrieved by
the outcome of this process preferred the appeals. Anil Kumar
was one of them. The argument before the Hon'ble Supreme
Court was that there was some irregularity and therefore, the list
of the municipal corporation cannot be termed as dubious. We do
not go into that aspect. The background facts, therefore, cannot
be ignored. While deciding the issue of fulfillment of the
experience criteria, whether that experience, gained while
holding diplomas, could also be counted in addition to the
experience gained after obtaining the degree, was the issue. We
cannot gloss over it and allow the petitioners before us to rely
upon this decision. Therefore, a certain experience was gained
while holding diploma and whether that can be counted in
addition to the experience gained after obtaining the degree was
the issue before the Hon'ble Supreme Court of India. Naturally,
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therefore, given the condition in the advertisement with regard to
the work experience that the Hon'ble Supreme Court went into
the entire record and laid down a principle by relying upon its
earlier decisions.
24. We cannot read paras 20, 21 and 23 of this judgment in
isolation. Equally, para 24 thereof cannot be seen dehors the
factual backdrop. Therefore, the discussion on Point No. 2
centers around matters where the Hon'ble Supreme Court was
concerned with not an issue as raised before us. In absence of any
doubt about the genuineness and bonafides of the claims of the
candidates that the argument was canvassed and considered by
the Hon'ble Supreme Court.
25. Having dealt with all the submissions of the petitioners'
counsel and finding that each one of them are identical to all
matters, we dismiss all these petitions. Rule is discharged in each
of them. The ad-interim orders are vacated forthwith.
26. At this stage, it is prayed by Mr. Marne that the ad-interim
orders passed by this court, restraining the municipal
corporation from filling up the posts be continued for a period of
two months from today so as to enable the petitioners to approach
the higher court.
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27. This request is seriously opposed by the learned counsel
appearing for the respondents, contending that the municipal
corporation has a job at hand. It has not been able to finalise the
process.
28. Having noted the argument on this point, we are of the view
that in the light of our findings and conclusions, this is not a fit
case to continue the ad-interim order. The request in that behalf
is refused.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6762 OF 2015
Mrs. Manisha Umaraosing }
Chavhan } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6772 OF 2015
Mehetre Ravindra Bapu } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6773 OF 2015
Chalak Utreshwar Sakhari } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6776 OF 2015
Misal Dattatray Pilaji } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6777 OF 2015
Mache Ashok Babusaheb } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 6778 OF 2015
Mane Devanand Dnyandev } Petitioner
versus
State of Maharashtra and Ors. } Respondents
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WITH
WRIT PETITION NO. 7751 OF 2015
Gaikwad Samrudhi Dilip } Petitioner
versus
State of Maharashtra and Ors. } Respondents
WITH
WRIT PETITION NO. 9161 OF 2015
Khedkar Kishor Bhujang } Petitioner
versus
The Municipal Corporation of }
Pimpari Chinchwad and Ors. } Respondents
Mr. Sandeep Marne i/b. Mr. R. N.
Gambhire for the petitioners in Writ
Petition Nos. 6762/2015, 6772/2015,
6773/2015, 6776/2015, 6777/2015,
6778/2015, 7751/2015 and 9161/2015.
Mr. P. G. Sawant – AGP for respondent
no.1 (State).
Mr. Prathamesh B. Bhargude for
respondent no. 4 in WP/6762/2015 and
6772/2015.
Mr. K. S. Bapat with Mr. G. H. Keluskar
for respondent nos. 1 and 2 in
WP/9161.2015.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
DATED :- FEBRUARY 9, 2017
ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. Heard. Rule in all the petitions. Respondents waive service.
By consent, Rule is made returnable forthwith.
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2. By these petitions under Article 226 of the Constitution of
India, the petitioners claim to be successful in their educational
career, duly qualified and yet not selected for a post of Assistant
Civil Engineer in the Municipal Corporation of Pimpri Chinchwad.
3. That Municipal Corporation, through its Commissioner, has
selected candidates for appointment, but according to the
petitioners, all such selected candidates do not fulfill the
eligibility criteria.
4. Both sides state that the facts and circumstances in all
these matters and the issue involved is common and therefore,
each one of them can be disposed of by this judgment.
5. We proceed on the above lines and take the facts from one of
the petitions, which was argued by Mr. Marne.
6. The petitioner in Writ Petition No. 6762 of 2015 is one
Mrs.Manisha Umaraosing Chavhan. She has filed this petition
aggrieved and dissatisfied with her non-selection to the post of
Assistant Civil Engineer, on the establishment of the Pimpri
Chinchwad Municipal Corporation. The petitioner states that she
has applied pursuant to an advertisement. That advertisement
was for various posts, including Assistant Civil Engineer. The
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st
circular/advertisement no. 473 of 2015 dated 31 January, 2015
sets out the rules so also the criteria, particularly in relation to
the education qualification and experience, copy of which is
annexed as Annexure 'A' to the petition.
7. The petitioner in this writ petition states that there was a
category and carved out for ladies. That is how she made an
application for appointment to the post of Assistant Civil
Engineer (Ladies). She claims to be belonging to “Vimukta Jati
(A)”, which is styled as such by the State of Maharashtra
pursuant to a Government Resolution issued in that regard. The
petitioner annexed certain documents with her application, such
as certificates passing of the S. C. C. (Xth Standard) and H. S. C.
(XIIth Standard) examination, certificate of Construction
th
Supervisor of June, 2013, experience letter dated 19 May,
2015, caste certificate and caste validity certificate etc.
8. It is common ground that the second respondent conducted
th
a written examination on 29 March, 2015. The results of the
th
same were displayed on 20 April, 2015. The petitioner relies
upon this list styled as merit list. She says that her name
nd
appeared at Sr. No. 9. Her documents were verified on 22 May,
2015. Thereafter, the select list and waiting list was displayed.
th
That is dated 29 June, 2015. The petitioner states that she duly
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qualified in the written examination having obtained 136 marks,
but she was not appointed. It is her grievance that she is very
experienced and respondent no. 2 failed to appreciate the same
and selected another candidate having lesser marks of the same
category.
9. The petitioner states that a letter was written by her
requesting for explanation and seeking a hearing as to how a
candidate securing 128 marks has been appointed and not the
petitioner, who has secured 136 marks. The application under
the Right to Information Act, 2005 was also made seeking some
information in relation to the selection process.
10. The argument is that the respondent-municipal corporation
did not respond to this application. The petitioner has, therefore,
not only arrayed the public body, but has added as party even a
selected candidate by virtue of an amendment.
11. An affidavit in reply has been filed on notice being
issued. The writ petition is opposed by pointing out that the
petitioner in this petition and other petitioners are trying to stall
the recruitment process. That recruitment process was
commenced because this court was seized of a public interest
litigation being PIL No. 207 of 2010. The issue of illegal and
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unauthorised constructions in the municipal limits was
th
highlighted. This court passed a detailed order on 6 February,
2015 directing demolition of illegal constructions within a time
bound frame. At that stage, the municipal corporation expressed
its difficulty of not having the requisite manpower. The State
Government was, therefore, directed to sanction additional posts
and the current exercise is a result of that sanction of the State
Government. That is how Assistant Civil Engineers are required
to be recruited emergently. Today, a grievance is made that this
process is stalled and because of an ad-interim order passed by
this court.
12. The principal contention in the affidavit in reply is that the
written examination was not the only mode of judging the merit
of the candidate, but the advertisement required the candidate to
fulfill a criteria of experience. Thus, the candidate must possess
an additional qualification and as mentioned in Condition No. 1.3
of the advertisement. The applications were received on-line.
The candidates were allowed to appear at the written
examination without scrutiny of their documents of qualification
and experience. These posts are responsible posts. The work
experience is contemplated for the purpose of effective working
because Pimpri Chinchwad Municipal Corporation is spread over
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a huge area, within the limits of which, every construction
activity and undertaken on a large scale is to be monitored and
illegalities have to be checked. Therefore, there should be a real
experience, which would enable the municipal corporation to
recruit skilled engineers. The petitioner’s documents were
verified and the authority came to a conclusion that she does not
have the work experience of two years. The experience that is
claimed is holding of a post or employment purportedly as
supervisor, but held prior to the passing of the qualifying
examination. This has, therefore, not been taken into
consideration. Apart therefrom, the petitioner claims to have
worked with one M/s. Sanskruti Construction Company for a
th th
period of nearly three years, that is from 15 June, 2012 to 19
May, 2015. The petitioner completed the course of Construction
Supervisor (course of one year duration), for which, the
examination was conducted in June, 2013. The examination
rules of the Maharashtra State Board of Vocational Education
contemplates the attendance of minimum 75% of the total
lectures/periods, including, theory, practical, term work,
tutorials and project work, separately in each and every subject
as per the teaching scheme of the Board. When the petitioner
th th
claims that she worked continuously from 15 June, 2012 to 19
May, 2015, then, it is doubtful as to whether she has undertaken
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the required course of study and fulfilled the requirement of
minimum attendance and project work etc. It is this aspect of the
matter, which, according to the respondents, disqualifies the
petitioner from holding the post. The petitioner is accused of
having approached this court with unclean hands.
13. A rejoinder affidavit has been filed by the petitioner and in
which, what is being urged is that a perusal of the advertisement
st
dated 31 January, 2015 shows that under the columns
“Education Qualification” and “Experience”, the candidate ought
to have cleared the S. S. C., Civil Engineering Assistant course
from Government recognized industrial training centre or
institute and two years work experience. The condition of two
years’ experience is independent of the educational qualification.
That is how reliance is placed on the judgment of the Hon’ble
Supreme Court of India, which, according to the petitioner, lays
down a principle that there is no difference between experience
before acquisition of qualification and after acquisition. When
there is no connection between experience and qualification,
experience earned prior to acquisition of the qualification is also
required to taken into consideration. Absent such a provision or
stipulation, the experience gained in the present case cannot be
discarded.
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14. That is how the petitioner claims to be qualified and fully
eligible to hold the post. The rest of the statements in the
affidavit in rejoinder contain denials.
15. Mr. Marne learned counsel appearing for the petitioners
would submit that there is a common theme and underlying the
decision of the municipal corporation impugned in this case. He
would submit that the municipal corporation has proceeded on an
erroneous footing and its understanding of the advertisement and
conditions incorporated therein is contrary to law. He would
submit that now as an afterthought the credentials of the
petitioners are doubted. Those selected also do not pass the test
and as is projected by the respondents. The advertisement
simply stated that there should be a certain course of one year
duration, which should be undergone by a candidate. Secondly,
he/she must possess work experience. The advertisement does
not say and expressly that such experience has to be gained after
the educational qualification. Therefore, it is erroneous and an
after thought to now rely on the above stipulation. In any event,
that runs counter to the settled principle and that is to be found
in the three Judge Bench judgment in the case of Anil Kumar
1
Gupta and Ors. vs. Municipal corporation of Delhi and Ors. and in
2
the case of B. Ramakichenin Alias Balagandhi vs. Union of India .
1 (2008) 1 SCC 128
2 (2008) 1 SCC 362
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16. On the other hand Mr. Bapat learned advocate appearing
for the municipal corporation and the Municipal Commissioner
would submit that this court is exercising its jurisdiction under
Article 226 of the Constitution of India. This jurisdiction is
equitable and discretionary. None can claim as of right a relief in
such jurisdiction. In this case, there is a genuine doubt about the
fulfillment of the eligibility criteria. The petitioners in these
petitions are not found to have undergone the courses and their
certificates do not evidence that they attended any classes,
submitted any projects and fulfilled the other criteria, which is
evolved by the Maharashtra State Board of Technical Education
or the Maharashtra State Board for Vocational Training and
Examinations. Once there is a statutory board and which
prescribes the requirement for such a course, then, none of these
petitioners have produced the relevant and germane material
evidencing completion of such course. Secondly, even the
certificates that have been produced and some of which are not
available with the candidates at the time of verification and
scrutiny make an interesting reading. Some of the candidates
have worked, according to them, as a part of the management
team before completion of the course, supervised a site, where
some work was going on. The projects and as highlighted in the
appointment orders or the experience certificates do not indicate
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that they were undertaken or in pursuance of which, there was
an appointment made. There is a serious doubt as to how such
certificates were issued without even the educational
qualification being set out therein or taking note of the
requirement of the job. There is, thus, a genuine and bonafide
dispute raised by the municipal corporation. It is in these
circumstances, he would submit that in writ jurisdiction,
particularly in the absence of any arbitrariness, discrimination or
malafides, this court should not interfere with the discretion of
the administrator. It is the administrator's choice and right not
to appoint such persons and on a public post. There is no vested
right and merely because somebody is successful in the written
examination it does not mean that he should straightaway be
placed in the select list. He would submit that for the aforesaid
reasons the writ petitions be dismissed.
17. If we take the facts from Writ Petition No. 6762 of 2015,
what we have is a copy of the advertisement on the record of that
writ petition at page 14. That says that the post is Assistant Civil
Engineer. The pay scale is notified. The candidate must be S. S. C.
(Xth standard) passed. The candidate must possess a civil
engineering course clearance certificate from a Government
recognised industrial training institute or a Government
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industrial training institute itself. The certificate must evidence
that such a course has been cleared. Then, two years' work
experience is required.
18. The other stipulations are pertaining to the age etc. It is
nd
common ground that the applications were to be received from 2
th
February, 2015 to 16 February, 2015. All the applications were
to be received on-line. The testimonials and certificates were to
be annexed. There is no age bar for in-service candidates.
Pursuant to such an advertisement and which contains other
conditions to be found at page 16. That the same sets out
guidelines as to how the application forms have to be filled in. It
also states that there would be a written test. A reference to the
written test is to be found at clause 3.1. It is to judge and test the
education qualification, the nature of working experience and
common general knowledge, knowledge of language and that
examination will carry 200 marks. Then, the selection process is
set out in clause 4. Clause 4.1 says that there would be a display
of merit list and which would indicate the marks obtained. The
candidates would be listed in the order of merit. It is thereafter,
the scrutiny of papers and documents would be undertaken only
of those candidates whose names are set out in the merit list.
Then, what has been set out are the general conditions. What has
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then been placed on record is a copy of the on-line application.
Petitioner Chavhan Manisha Umaraosing, in the application,
th
states that she is born on 15 September, 1986. She belongs to
Banjara Vimukta Jati. She has been residing in Osmanabad
District. Her address and for contacting and other purpose,
including correspondence is that of Government ITI, Pardi Road,
Bhoom, Taluka Bhoom in the State of Maharashtra. The other
details need not concern us save and except what she says is that
she has cleared her Maharashtra State Board Secondary School
th
Certificate examination in the year 2002. She has cleared 12
Standard examination in 2004 and she has cleared the
examination conducted by the Maharashtra State Board of
Vocational Education, Mumbai in 2013. She has also a certificate
evidencing her familiarity with computers. She states that she
th
has worked, as far as work experience is concerned, from 15
th
June, 2012 to 15 February, 2015 with M/s. Sanskruti
Construction Company, Bhoom. Then, what we have is the S. S. C.
th
certificate, copy of which is at page 25 of the paper book. The 12
Standard clearance certificate is at page 26. At page 27, what we
have is a certificate issued by the Maharashtra State Board of
Vocational Examination in respect of the one year course,
namely, Construction Supervisor. The training for the certificate
course in Construction Supervisor of one year is supposed to have
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been undergone by this petitioner and the examination was held
in 2013. Pertinently, the certificate is silent with regard to the
educational institution from which this one year course was
completed. Then, we have a certificate issued by the
Maharashtra State Board of Vocational Examinations and in
some cases, including this, what we find is that though the
certificate says that the petitioner has successfully completed the
certificate course in Construction Supervisor, the course is of one
year duration and she has passed the examination in first class in
2013. The Chairman has signed the certificate, there is a number
attached to this certificate, but the date of issue of such certificate
is not mentioned. Then, what we have is the certificate issued on
th
19 May, 2015 by M/s. Sanskruti Construction Company. That
says that the petitioner was working with their organisation for 2
years and 11 months as site supervisor and drawing the salary of
Rs.55,000/- per month. What we have, therefore, to see is
whether this is a document which could be relied upon to grant an
opportunity to the petitioner to serve the Pimpri Chinchwad
Municipal Corporation as an Assistant Civil Engineer. The
advertisement for the recruitment to that post was published on
st nd
31 January, 2015. The applications could be submitted from 2
th
February, 2015 to 16 February, 2015. The petitioner submitted
th
her application and on-line dated 15 February, 2015. She states
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th th
that from 15 June, 2012 to 15 February, 2015, she was
serving this company as a site supervisor. She does not mention
her residential address, but mentions the address of Government
ITI, Bhoom in the State of Maharashtra. The petitioner is
supposed to have already completed this certificate course in
2013. She is supposed to have been working, during the period
while undertaking this course, with this Sanskruti Construction
Company. This Sanskruti Construction Company issues a
th
certificate on 19 May, 2015. This certificate may have been
issued later on, but when its scrutiny was undertaken, the
administrators have scrutinised this document and
contemporaneously with other record. While there is no dispute
that the petitioner may have cleared her S.S.C. and H. S. C.
examinations, there is nothing pointed out in the writ petition,
which would enable us to conclude that the petitioner attended
either Government recognised industrial institute or a
Government training institute itself. If what the petitioner states
in her application is correct and she has, for the purpose of
correspondence, set out this address, then, what we have before
us is a very curious fact and that is evident from the cause title of
the petition, that the petitioner is serving and her address is
Government ITI, Pardi Road, Bhoom, Taluka Bhoom, District
Osmanabad. If we take this as a residential address, then, what
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the petitioner says and on oath is that the petition is affirmed at
Pune. The petitioner is supposed to be a resident of District
Osmanabad. Which institute she attended, how, therefore, she
was eligible to appear for examination for the certificate course
and passed it with flying colours has not been set out.
Pertinently, Mr. Bapat relies upon the Rules for Admission to
Examination, Passing Condition, Issue of Statement of Marks,
Certificates and Duplicate Certificate, which rules are styled as
Maharashtra State Board of Vocational Education Rules
applicable for certain courses. The rules regarding admission to
an examination/ eligibility for appearing in examination are
Rules 5 and 6. These Rules read thus:-
“Rule–5. Admission to an Examination/Eligibility for
appearing in examination:-
No candidate will be admitted to any examination unless, he
took admission in the institute recognized by the Directorate
of Vocational Education, Maharashtra State or affiliated to
the Board of Vocational Examination and he has filled in
examination form along with prescribed examination fees
and it is certified by DVETO/Head of Institute that he had
fulfilled following conditions. Except direct examination
candidates who are already bonafide students of Pre. S. S. C.,
bifocal or H. S. C. (Voc.) scheme or passed it.
The Candidate has given satisfactory attendance of at least
75% of the total Lecture/Periods including each
Theory/Practical/Term work/Tutorials/Project work
separately in each and every subjects as per the Teaching
scheme of the Board.
Rule-6. Condoning deficiency in attendance
In case the attendance of a candidate falls short by not more
than 10% due to the circumstances beyond his control, the
head of the institute may condone such deficiency at his
discretion and permit the candidate to appear for
examination, if he is otherwise eligible.”
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19. Then, what we have is the requirement, which has to be
fulfilled. That is a very important requirement, namely,
Assessment of Term Work/Sessional/Practical/Project
Work/Oral/any other head. Once the institute and which has to be
attended must be recognised by the Government or must be the
Government institute itself, then, in the absence of this very
relevant and germane material, we do not think that the
Municipal Commissioner was obliged to select or appoint a
candidate like the petitioners. That everybody who is selected
and is likely to be appointed has gone through a similar process is
no answer. One wrong or one error committed by the authority or
an administrator does not mean that on that basis the petitioners
can claim a vested right. We do not think that the writ
jurisdiction permits perpetuation of a wrong or an error. There
cannot be equality in illegality. In the facts and circumstances of
the case, we do not think that this argument has any merit.
In the rejoinder affidavit, what is urged regarding the
20.
specific stand taken by the municipal corporation expressing
doubt about the genuineness of the documents relied upon, that
the experience of a candidate has to be after acquisition of the
educational qualification, is a plea raised as an afterthought.
Beyond this, nothing has been stated in the rejoinder affidavit,
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which would evidence that the petitioners have cleared the
certificate course from recognised institute/Government ITI with
the criteria and rules for examination being complied with.
21. Equally, we do not find any merit in the contention that
because such petitioners are toppers, they deserve to be
appointed by condoning any lapses and particularly in fulfilling
the criteria of experience. If the requirement is as above, then,
the argument that such toppers should not be overlooked does
not deserve any acceptance. Which merit the petitioners speak
about and highlight is unclear to us. A merit in their case is only
of attaining good marks in the written examination conducted by
the Pimpri Chinchwad Municipal Corporation. They may have
obtained very good marks in the written examination and as
highlighted by Mr. Marne, but that does not mean that they are
toppers. They can be termed as toppers only when they show us
certificates of completion of vocational training or industrial
training from recognised institute. The certificate and which is
highlighted and which shows that they have passed the course
with flying colours does not denote that they attended any
recognised institute by fulfilling the eligibility criteria of
attending theory, practical, term work etc. In these
circumstances, the administrators cannot be faulted for
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overlooking and not appointing candidates like the petitioners.
There is a discretion, which vests in them and they have chosen
not to appoint candidates whose claims are doubtful. Some of the
claims can be termed as bogus and dubious. Now a days, we see
that every attempt is made to highlight such achievements and to
gain public employment. Such inflated claims are made by
relying on dubious documents. At such a young age if this act is
mastered, then, we do not think that candidates producing and
relying on documents, whose contents are questionable or
disputable should be appointed on a public post. Such candidates,
who are frequently obtaining certificates from all corners of the
State do not deserve to be appointed. The writ jurisdiction is not
meant to overturn the decisions of the statutory authorities and
which are taken during the course of administration for they
have to select eligible candidates. They are responsible for such
decisions as they are discharging public functions and performing
a public duty. They cannot be directed to appoint candidates
whose claims are suspicious. We do not think that given the
above facts and circumstances, we would be required to go into
any larger issue. We do not think that our discretion should be
exercised. In favour of the petitioners herein.
22. Our attention was invited to a decision of the Hon'ble
Supreme Court of India in the case of Anil Kumar Gupta (supra).
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What has been stated and observed in that case is that the
Municipal Corporation of Delhi invited applications for filling up
posts of Assistant Engineer (Civil). The essential qualifications
for appointment were degree in Civil Engineering and two years'
professional experience. Pertinently, that was a degree course.
The norms were prescribed for awarding marks. The list of 60
candidates was prepared and 44 were placed in the waiting list.
The unselected candidates filed a writ petition in Delhi High
Court, which was dismissed by a learned Single Judge. The
Letters Patent Appeals were preferred and some fresh petitions.
The Division Bench of the Delhi High Court found that this is a fit
case where a retired Judge should be appointed so as to verify
whether the allocation of marks by the municipal corporation to
the various candidates was in accordance with the norms fixed.
The retired Judge was appointed, who once again went through
the record and heard the candidates. Based on his report, the
court scrutinised the select list. The Division Bench, then came to
the conclusion that the candidates who were found to be eligible
and appointed by the Municipal Corporation of Delhi and later on
found by the retired Judge to be ineligible for appointment may be
allowed to continue in service. The candidates, who were found
ineligible by the Municipal Corporation of Delhi and later on found
by the retired Judge to be eligible for appointment and who have
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approached the High Court within reasonable time should be
accommodated by giving them employment against existing
vacancies. The candidates, who were found by the retired Judge
to be ineligible for appointment on the ground that they had
obtained employment by producing false/fictitious certificates,
should be cashiered.
23. It is in these circumstances that the cases were taken up in
this order for scrutiny by the High Court and those aggrieved by
the outcome of this process preferred the appeals. Anil Kumar
was one of them. The argument before the Hon'ble Supreme
Court was that there was some irregularity and therefore, the list
of the municipal corporation cannot be termed as dubious. We do
not go into that aspect. The background facts, therefore, cannot
be ignored. While deciding the issue of fulfillment of the
experience criteria, whether that experience, gained while
holding diplomas, could also be counted in addition to the
experience gained after obtaining the degree, was the issue. We
cannot gloss over it and allow the petitioners before us to rely
upon this decision. Therefore, a certain experience was gained
while holding diploma and whether that can be counted in
addition to the experience gained after obtaining the degree was
the issue before the Hon'ble Supreme Court of India. Naturally,
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therefore, given the condition in the advertisement with regard to
the work experience that the Hon'ble Supreme Court went into
the entire record and laid down a principle by relying upon its
earlier decisions.
24. We cannot read paras 20, 21 and 23 of this judgment in
isolation. Equally, para 24 thereof cannot be seen dehors the
factual backdrop. Therefore, the discussion on Point No. 2
centers around matters where the Hon'ble Supreme Court was
concerned with not an issue as raised before us. In absence of any
doubt about the genuineness and bonafides of the claims of the
candidates that the argument was canvassed and considered by
the Hon'ble Supreme Court.
25. Having dealt with all the submissions of the petitioners'
counsel and finding that each one of them are identical to all
matters, we dismiss all these petitions. Rule is discharged in each
of them. The ad-interim orders are vacated forthwith.
26. At this stage, it is prayed by Mr. Marne that the ad-interim
orders passed by this court, restraining the municipal
corporation from filling up the posts be continued for a period of
two months from today so as to enable the petitioners to approach
the higher court.
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27. This request is seriously opposed by the learned counsel
appearing for the respondents, contending that the municipal
corporation has a job at hand. It has not been able to finalise the
process.
28. Having noted the argument on this point, we are of the view
that in the light of our findings and conclusions, this is not a fit
case to continue the ad-interim order. The request in that behalf
is refused.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
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