Maharashtra Public Service Commission Through Its Secretary vs Jagdish Anandrao Bhalerao And Ors

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Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1208 OF 2025
Maharashtra Public Service Commission,
Through its Secretary,
having its office at, Trishul Gold Field, Plot
No. 34, Sector 11, Oppo Sarovar Vihar,
Belapur, CBD, Navi Mumbai – 400 614. …Petitioner
~ versus ~
1. Dr. Jagdish Anandrao Bhalerao,
Adult, Occu: Servcie, R/o Hutatma
Samrak Road, Hasyavadan Dental Clinic,
Opp. Civil Hopital, Nagar Parishad
Complex, Jintur, Parbhani
2. Shirish V. Ingley,
Adult, Occu:-Service,
R/at Sangaloodkar Nagar,
Dr. Mhala Hospital Lane, Daryapur,
Amravati 44803
SHEPHALI
SANJAY
MORMARE
3. The State of Maharashtra,
Through its Secretary,
th
Public Health Department, 10 Floor,
GT Hospital, New Mantralaya,
Mumbai 400 001. …Respondents
Digitally signed
by SHEPHALI
SANJAY
MORMARE
Date: 2026.07.10
17:01:36 +0530
WITH
WRIT PETITION NO. 1205 OF 2025
Maharashtra Public Service Commission,
Through its Secretary,
…Petitioners
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having its office at, Trishul Gold Field, Plot
No. 34, Sector 11, Oppo Sarovar Vihar,
Belapur, CBD, Navi Mumbai – 400 614.
~ versus ~
1. Dr Bharat Lad,
Age:41 years, Occu: Service,
R/o. Behind Maruti Mandir, Kalyan
Nagar, Wasmat Road, Parbhani 431 401
Mob. :-98230 84554
Email:- [email protected]
2. The State of Maharashtra,
Through its Secretary,
th
Public Health Department, 10 Floor,
GT Hospital, New Mantralaya,
Mumbai 400 001. …Respondents
WITH
WRIT PETITION NO. 15021 OF 2025
Dr Bharat Lad,
Age: 52 years, Occu: Service,
R/o. Behind Maruti Mandir, Kalyan Nagar,
Wasmat Road, Parbhani 431 401
Mob. :-98230 84554
Email:- [email protected] …Petitioner
~ versus ~
1. Maharashtra Public Service Commission,
Through its Secretary,
having its office at, Trishul Gold Field,
Plot No. 34, Sector 11, Oppo Sarovar
Vihar, Belapur, CBD,
Navi Mumbai – 400 614.
2. The State of Maharashtra,
Through its Secretary,
…Respondents
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th
Public Health Department, 10 Floor,
GT Hospital, New Mantralaya,
Mumbai 400 001.
A PPEARANCES
For the Petitioners in
WP/1208/2025 &
WP/1205/2025 and for
the Respondent in
WP/15021/2025
Mr Ashutosh M Kulkarni, with Mr Hrutik
Chavan & Mr Soham Salunke.
For the Petitioner in
WP/15021/2025 for
the Respondent No. 1 in
WP/1205/2025
Mr Kranti L. C., i/b Kaustubh Gidh.
For Respondent in
WP/1208/2025
Mr Abhijeet A. Desai, with Ms Mohini A
Desai (Rehpade), Mr Vijay Singh, Ms
Daksha Punghera & Mr Deepesh R, i/b
Desai Legal LLP.
For Respondents-State Ms Shruti D Vyas, Addl. GP, with Ms
Reena A Salunkhe, AGP.
CORAM : SUMAN SHYAM &
RANJITSINHA RAJA BHONSALE, JJ
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RESERVED ON : 18 JUNE 2026.
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PRONOUNCED ON : 9 JULY 2026.
JUDGMENT ( Per Suman Shyam, J) :-
1. These Writ Petitions arise out of common Judgment and
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Order dated 25 July 2024 passed by the learned Maharashtra
Administrative Tribunal (“MAT”). Writ Petition No. 1208 of 2025
pertains to the Judgment passed in connection with Original
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Application No. 1442 of 2023 filed by the two Original
Applicants/Respondents Nos. 1 and 2 in the Writ Petition, viz., (1)
Dr Jagdish Anandrao Bhalerao; and (2) Shri. Shrish V. Ingley. Writ
Petition No. 1205 of 2025 pertains to the Original Application No.
1368 of 2023 instituted by the Original Applicant/Respondent No.
1 viz. Dr. Bharat Lad. In both these Writ Petitions instituted by the
Maharashtra Public Service Commission (“MPSC”) as the Writ
th
Petitioner, the Judgment and Order dated 25 July 2024 passed by
the Learned MAT directing the MPSC to recommend the names of
the Original Applicants for appointment to the post(s) of Dental
Surgeon within a period of six weeks by relaxing their age limit as
per Rule 3(b) of the Directorate of Health Service Recruitment
Rules, 1990 (hereinafter referred to as “Rules of 1990”) has been
put under challenge. Although the operative part of the Judgment
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and Order dated 25 July 2024 is in favour of the Original
Applicant, viz. Dr Bharat Lad, yet, he is assailing the Judgment and
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Order dated 25 July 2024 by filing Writ Petition No. 15021 of
2025 on the ground that the learned Tribunal has not accepted his
plea that being already in the service of the Government, the age
restriction clause prescribed by the Rules of 1990 as well as Clause
4.2 of the advertisement notice was not at all applicable in his
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case. Since the issues involved in all these three Writ Petitions are
interconnected, hence, we propose to dispose of these Writ
Petitions by this common Judgment. For appreciating the issues
involved in the Writ Petitions, the facts of the case, shorn of
unnecessary details, are stated hereinbelow:-
2. On being requisitioned by the State Government of
st
Maharashtra, the MPSC had issued advertisement notice dated 31
July, 2015 inviting applications for filling up 189 posts of Dental
Surgeon (Group-B). The eligibility criteria prescribed in the
advertisement notice was Bachelors Degree in Dental Surgery
(BDS) with one year experience as Clinical Assistant or in any post,
which in the opinion of the Government, is equivalent or higher
than the post of Clinical Assistant. As per the advertisement notice,
the upper age limit of the Applicant was prescribed as 35 years for
the open category and 40 years for the reserved category. Such
st
upper limit was to be reckoned as on 1 November 2015. Clause
4.6 of the advertisement notice had also mentioned that preference
would be given to candidates possessing Post Graduate
qualification in Dental Science (MDS).
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3. The Original Applicants, i.e., the private Respondents in Writ
Petition No. 1208 of 2025 and Writ Petition No. 1205 of 2025 were
all serving as Dental Surgeons on contractual basis, their
appointments having been made under a centrally sponsored
scheme, viz., National Health Mission (“NHM”) adopted by the
State Government of Maharashtra. It appears from the projections
made in the Original Applications that the Respondent Nos. 1 and
2 in Writ Petition No. 1208 of 2025 were appointed on contractual
basis in the year 2008, initially for a period of 11 months and their
contractual appointments were later on extended from time to
time to such effect that these Respondents/Original Applicants are
continuing to serve as Dental Surgeons on contractual basis under
the different institutions of the Government of Maharashtra, till
date. Likewise, the Respondent No. 1 in Writ Petition No. 1205 of
2025, viz. Dr Bharat Lad was also appointed as Dental Surgeon on
st
contractual basis on 1 August 2012, initially for a period of 11
months and, thereafter, his contractual appointment was also
extended from time to time, as a result of which, he is also
rendering his service as a contractual appointee till date with
periodical extensions of his order of contractual appointment.
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4. Since the Original Applicants/private Respondents are all
BDS degree holders and had the requisite qualification and
experience as prescribed under the advertisement notice, hence, in
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response to the advertisement notice dated 31 July, 2015, they
had submitted their applications.
5. It further appears from the material available on record that
online applications were accepted by the MPSC. However, there
was some confusion as to whether candidates having experience in
st
private hospitals/clinics could also be considered. As such, on 1
October, 2015, the State Government had clarified that candidates
having experience in private hospitals/clinics could also be
considered. Accordingly, the MPSC had considered the candidates
having experience in private hospitals/clinics. That apart, by
invoking Clause 4.6, the MPSC had also extended preferential
treatment to the candidates possessing higher educational
qualification of MDS for short-listing of the candidates for
interview on the ground that the number of candidates, who had
applied, was quite large. In the result, the candidates possessing
BDS qualification, including the private respondents, who were
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already serving as contractual employees, were not called for
interview.
6. The decision of the MPSC to go for shortlisting of candidates
possessing higher educational qualification, viz., MDS was put
under challenge by a large number of Applicants possessing BDS
qualification, by filing series of Original Applications including
Original Application No 1119 of 2015 before the learned Tribunal.
Clause 4.6 of the advertisement notice was also put under
rd
challenge by the Original Applicants. By order dated 23 December
2015, the learned Tribunal had directed the MPSC to conduct
interview of the Original Applicants as well.
7. In the meantime, the MPSC had conducted interviews of the
short listed candidates and thereafter, published select list dated
th
18 November, 2016 recommending the names of 188 candidates
for being appointed as Dental Surgeons. Accordingly, the State
Government had also issued appointment orders in favour of such
candidates. However, only 122 out of the 188 selected candidates
eventually joined service, thus leaving 66 vacancies unfilled. It
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appears that by the interim order dated 1 March,2018, the MAT
had directed that the original applicants be continued in service.
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8. Original Application No 1091 of 2015 instituted by Dr.
Kshitij Digambar Lohite was treated as the lead case. The learned
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MAT, by order dated 8 May, 2019, passed in Original Application
No. 1091 of 2015 and the batch of connected Original
Applications, had held that shortlisting of candidates by the MPSC
based on higher education qualification would have the effect of
En-Bloc elimination of candidates holding the lower qualification
of Bachelor degree in Dental Surgery (BDS). The Tribunal had also
held that candidates having experience in private hospitals/clinics
could also be considered for the purpose of determining their
eligibility. On such basis, the Tribunal had directed the MPSC to
revise the list of selected candidates and send additional names by
including the names of those candidates who met the minimum
prescribed qualification.
9. Being aggrieved by such directions of the learned Tribunal,
the MPSC had approached this Court by filing a batch of Writ
Petitions including Writ Petition (St) No. 1153 of 2020. Although
th
the operative part of the order dated 8 May, 2019 was in their
favour, yet, some of the Original Applicants had challenged the
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order dated 8 May, 2019 passed by the learned MAT before this
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Court, assailing the findings of the learned Tribunal to the effect
that the candidates having experience in private hospitals/clinics
could also be considered eligible for selection.
th
10. By the Judgment and Order dated 20 March 2023 passed
by the Division Bench of this Court in Writ Petition (ST) No. 9195
of 2021 and the batch of connected Writ Petitions, the shortlisting
criteria adopted by the MPSC based on higher qualification was
held to be valid. Consequently, the Writ Petitions filed by the MPSC
were allowed. However, the directions issued by the learned
Tribunal pertaining to the eligibility of candidates who had gained
experience in private hospitals/clinics was interfered with.
th
Accordingly, by the Judgment and Order dated 20 March 2023,
the High Court had directed the MPSC to consider the names of
the Original Applicants, who were already interviewed in
pursuance to the interim order of the Tribunal. The operative part
th
of the order dated 20 March, 2023 as contained in paragraphs
53(iii) and (iv), are reproduced hereinbelow for ready reference:
“(iii) Writ Petition St. Nos. 9195/2021 and
Writ Petition No.7201/2019 filed by the Original
applicants are disposed of with a direction to MPSC
to consider the names of Original applicants who are
already interviewed in pursuance of interim order of
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the Tribunal for being recommended to the State
Government based on their performance in the
interview against 67 unfilled vacancies of Dental
Surgeon. This exercise be carried out by MPSC within
a period of six weeks from today. In the event of such
Original applicants being recommended by the
MPSC, the State Government shall consider their
names for being appointed against 67 unfilled posts
of Dental Surgeon prospectively. They shall not be
entitled to any benefits from an earlier date. The
State Government to complete this exercise within a
period of four weeks from the date of receipt of
recommendations from the MPSC.
(iv) Until the exercise in direction (iii) above is
completed, services of the Original applicants, who
are already in service, shall not be disturbed.”
th
11. Pursuant to the Judgment and Order dated 20 March 2023,
whereby, a direction was issued by the Division Bench of the High
Court to consider the names of the Original Applicants who had
already been interviewed, for filling up the 67 vacancies, the MPSC
had published a list of 51 candidates. However, the names of the
Original Applicants/Private Respondents herein were not included
th
therein. Rather, on 17 October 2023, the MPSC had notified that
the Original Applicants were not eligible on account of having
exceeded the upper age limit.
12. Aggrieved thereby, Dr Jagdish Anandrao Bhalerao and Shri.
Shrish V. Ingley had jointly instituted Original Application No.
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1442 of 2023 assailing the Order dated 17 October 2023 with a
prayer to issue a direction to the MPSC for recommending their
names for appointment as Dental Surgeon on regular basis.
Likewise, Dr Bharat Lad had also instituted Original Application
No. 1368 of 2023 with a similar prayer to set aside the order dated
th
17 October 2023 and for issuance of a similar direction to the
MPSC.
13. The stand of the MPSC as well as the State Government of
Maharashtra before the MAT was to the effect that the Original
Applicants, not being government servants, were not entitled for
age relaxation as per Rule 3(b) of the Rules of 1990 since, they
were over-aged candidates. Therefore, regardless of their merit
position, the names of those candidates could not be recommended
for appointment in the post of Dental Surgeon on regular basis.
14. After considering the submissions made by both the sides
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and by taking note of the Government Resolution (“GR”) dated 14
th
March 2024, as well as the order dated 20 March 2023 passed by
this Court, the learned Tribunal had allowed the Original
Applications by directing the MPSC to recommend the names of
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the Original Applicants for the posts of Dental Surgeon within a
period of six weeks.
th
15. Assailing the Judgment and Order dated 25 July 2025
passed by the learned MAT, the Writ Petitioner-MPSC has
contended that the learned MAT has failed to appreciate that the
st
Original Applicants were over-aged as on 1 November 2015,
which was the cut-off date as per Clause 4.1 of the Advertisement
Notice; that the learned Tribunal has failed to appreciate that the
Original Applicants were contractual employees under the NHM
Scheme and hence, were not employees of the State Government
of Maharashtra. Therefore they were not entitled to claim age
relaxation under the Rules; that granting age relaxation to the
Original Applicants will open floodgates as several other similarly
situated contractual employees would also claim the benefit of age
relaxation; that the learned Tribunal had failed to appreciate that
the provisions in the Rule 1990 for relaxation of age in exceptional
cases would not be applicable to the Original Applicants in the
facts of this case.
16. Mr Kulkarni, learned counsel appearing for the Petitioner(s)
(MPSC) has argued that the Original Applicants are not
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government servants and, therefore, in view of the age limit
prescribed by the statute, they are not entitled to be appointed as
per the Advertisement Notice. According to Mr. Kulkarni, the
private respondents were not eligible to participate in the selection
st
process under the Advertisement Notice dated 31 July 2015, in
view of the age limit prescribed by the Rules as well as the
Advertisement Notice. It is also his submission that the Petitioners
do not have the experience and qualification of exceptional nature,
so as to justify relaxation of age. Moreover, according to Mr
Kulkarni, the MPSC had called the candidates for interview by
applying the preferential qualification as approved by this Court by
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its Judgment and Order dated 20 March 2023. Therefore, the
Original Applicants did not have any right under the Rules, either
to participate in the selection process or to seek an order for their
appointment. In such view of the matter, the impugned Judgment
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and Order dated 25 July 2024 of the learned MAT, according to
Mr. Kulkarni, is unsustainable in law and, therefore, liable to be set
aside on such count.
17. Contesting such submission of Mr Kulkarni, Shri. Desai,
learned Counsel appearing for the private Respondents in Writ
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Petition No. 1208 of 2025 has argued that regardless of the nature
of appointment of the Respondents, it is an established fact that
they were serving under the establishment of the Government of
Maharashtra and, therefore, the age restriction imposed under
Rule 3(b)(i) as well Clause 4.2 of the Advertisement Notice would
not be applicable to them. In such view of the matter, the MPSC
has committed manifest illegality in declining recommendation of
his clients for appointment for the post of “Dental Surgeon” only
on the ground that they were over-aged by ignoring the high score
of the Respondent Nos. 1 and 2 in the interview process. By
referring to the decision of the Hon’ble Supreme Court in the case
1
of UPSC Vs. Dr. Jamuna Kurup & Ors. as well as another decision
rendered in the case Union of India & Ors. Vs. V. R. Nanukuttan
2
Nair. Mr Desai has argued that since Rule 3(b)(i) did not mandate
permanent employment as a government servant for waiver of age
restriction criteria, hence, the facts of the case would wholly justify
extending the benefit of waiver clause of upper age in favour of the
Respondent Nos. 1 and 2.
1
(2008) 11 SCC, 10.
2
(2019) 19 SCC 690.
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18. Moreover, submits Mr. Desai, having served the government
institutions for a continuous period in excess of 10 years, his
clients were entitled to absorption on permanent basis even under
th
the GR dated 14 March 2024 and, therefore, the learned Tribunal
had rightly passed the impugned Judgment and order which does
not call for any interference by this court.
19. Mr Kranti, learned counsel appearing for the Petitioner in
the Writ Petition No. 1205 of 2025 has, by and large, adopted the
abovenoted submissions advanced by Mr Desai but he has also
argued that the learned Tribunal had committed manifest illegality
in not recording a finding in favour of the Original Applicant to the
effect that his candidature was not hit by the age restriction
contemplated under Rule 3(b)(i) of the Rules of 1990. Therefore,
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although, the operative part of the impugned Judgment dated 25
July 2024 is in favour of his client, yet, since the above contention
of the Original Applicant was not expressly accepted by the learned
Tribunal, hence, by way of abundant caution, Writ Petition No.
15021 of 2025 has been filed by contending that even under Rule
3(b)(i), the candidature of the Original Applicant would not be hit
by the age bar.
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20. We have considered the submissions made at the Bar and
have also gone through the material available on record. Since the
core controversy involved in these proceedings has to be answered
on an interpretation of Rule 3 of the Rules of 1990, we deem it
appropriate to re- produce the said Rules as hereunder:
“3. Appointment to the post of Dental Surgeon in
the Directorate shall be made either,-
(a) … … …
(b) by nomination from amongst the candidates
who,
(i) unless already in the service of the
Government are not more than thirty-five years
of age;
(ii) possess a degree of Bachelor of Dental
Surgery as included in Part I or III of the
Schedule to the Dentists Act 1948 (16 of
1948); and
(iii) have experience for not less than two
years* as a Clinical Assistant in any post, which
in the opinion of the Government is equivalent
to or higher than, the post of Clinical Assistant,
gained after acquiring the qualification
mentioned in sub-clause (ii) above.”
Provided that the age limit may be relaxed by
the Government on the recommendation of the
Commission in favour of candidates possessing
exceptional qualification or experience or both.”
21. Clauses 4.1 and 4.2 of the Advertisement Notice are
reproduced hereinbelow:-
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“ ४ . १वयः - दि नांक१नोव्हेंबर , २०१५रोजीवय३५वर्षे  वमागास
वग वारीकरीता४०वर्षेापेक्षाजास्तनसावे .
st
4.1 Age: On 1 November 2015 , the age should not
exceed 35 years and for backward categories it should not
exceed 40 years.
. -
४ २महाराष्ट्रशासनाच्यासेवेतीलकम चा यांनाउच्चउच्च
.
वयोमया ालागूनाही
4.2 There shall be no upper age limit for employees in
the service of the Government of Maharashtra.”
22. What would be significant to note herein is that clause 4.1 of
the advertisement notice aims at giving effect to Rule 3(b)(i)
which prescribes the upper age limit of 35 years. However, Rule
3(b)(i) of the Rules of 1990 also provides that no upper age limit
will be applicable for the candidates who are already in the service
of Government. In view of the aforesaid provision of the Rules,
Clause 4.2 has been inserted in the Advertisement Notice dated
st
31 July 2015 clearly providing that the upper age limit will not be
applicable for those candidates who are in the service of the
Maharashtra Government.
23. It would be pertinent to note herein that neither Rule 3(b) of
the Rules of 1990 nor Clause 4.2 of the Advertisement Notice
st
dated 31 July 2015 require that the candidates, in order to get the
benefit of waiver of upper age limit, must be government servants
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nor does it prescribe that the appointment of the candidates
serving under the Government of Maharashtra must be permanent
and/or on regular basis. On the contrary, Rule 3(b)(i)
contemplates is that the person concerned must be in the service of
the Government of Maharashtra. The said position is also clearly
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reflected in Clause 4.2 of the Advertisement Notice dated 31 July
2015. The core questions that would therefore, arises for
consideration in this case is as to whether, by virtue of their
contractual services as Dental Surgeon pursuant to their
appointments in posts made available under the centrally
sponsored scheme, viz., National Health Mission, whether the
Original Applicants/private Respondents herein would be
automatically entitled to exemption of the upper age limit criteria
of 35 years as prescribed in Rule 3(b)(i) of the Rules of 1990 read
st
with Clauses 4.1 and 4.2 of the Advertisement Notice dated 31
July 2015. If not, whether their age would be liable to be relaxed
by the Government on the recommendation of the Petitioner
commission as per proviso to Rule 3(b) on the ground of
possessing exceptional qualification or experience or both. The
second question would arise for consideration of this court on
account of the fact that the two Original Applications, noted above,
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have been disposed of by the learned MAT with a direction upon
the MPSC (Writ Petitioner) to recommend the case of the Original
Applicants/Respondents for appointment upon relaxation of their
age by relying upon proviso to Rule 3(b).
24. In order to deny the claim of the Original Applicants, Mr
Kulkarni has argued that the contractual employees, such as
Original Applicants, cannot be treated to be persons, who are in
the service of the Government of Maharashtra. However, from a
scrutiny of the appointment orders as well as the certificates issued
to the Original Applicants, we find that those were issued by the
Medical Superintendent of the Government Hospitals. Not only
that the service of the Respondents were also availed in the
hospitals established by the Government of Maharashtra for the
benefit of the common public. Therefore, it is clear that
Respondents have been discharging their duties in the Government
establishment and, hence, were in the service of the Government.
If that be so, in our considered opinion, they be entitled for
exemption of upper age limit prescribed by Rule 3(b)(i).
25. It may be correct to contend that being in contractual
employment, the Original Applicants cannot claim to be
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“Government Servants” in the strict sense of the expression.
However, Rule 2(b) of the Maharashtra Civil Service (Conduct)
Rules, 1979 ( “Rules of 1979”) lays down a very wide definition of
Government servants which is as hereunder :-
“2 (b) – “Government servant” means any person appointed to
any civil service or post in connection with the affairs of the
State of Maharashtra, and includes a Government servant
whose services are placed at the disposal of a company,
corporation, organization, local authority or any other
Government, notwithstanding that his salary is drawn from
sources other than from the Consolidated Fund of the State.”
26. As has been noted above, the Original Applicants need not
be in permanent employment in any civil posts under the
Government of Maharashtra so as to get the benefit of Rule 3(b)(i)
of the Rules of 1990. In view of the language employed in Rule
2(b) of the Rules of 1979, in our opinion, if a candidate has been
serving in any Institutions under Government of Maharashtra even
as Contractual Employee, that would be sufficient for being
entitled for the waiver/ exemption of upper age limit as prescribed
in Rule 3(b)(i).
27. In the above context, it would be pertinent to note herein
that noticing the plight of the contractual employees working
under the National Health Mission (NHM) for a number of years,
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the State Cabinet had taken several significant decisions to
permanently absorb such contractual employees, if necessary, by
amending the service entry Rules and also by granting relaxation
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of their age. Pursuant to a Cabinet Decision taken on 13 March
2024, the Additional Chief Secretary, Public Health Department,
Government of Maharashtra, had issued Government Resolution
th
dated 14 March 2024, the English translation whereof, reads as
follows:-
“GOVERNMENT RESOLUTION :-
With reference to adjustment in services of contract
employees working under the National Health Mission the
following decision was taken in the meeting of the State
Cabinet held on 13/03/2024.
(1) Approval is being given for carrying out
amendments in the general service recruitment rules for
adjustment in services of contact employees working
under the National Health Mission by making
alterations to service recruitment rules to approved
equivalent posts in the Public Health Department and
recruitment therein of 70 percent by general service
recruitment and 30 percent every year by adjustment.
(2) Approval is being given for relaxation in age limit to
the extent of tenure of service of employees for
adjustment of contract employees who have put in 10
years and more of services under the National Health
Mission.
(3) After adjustment of contract employees who have
put in 10 years and more of services under the National
Health Mission as regards wages approval is being given
for fixing it in the next step of the regular pay scale to
the extent of honorarium drawn by them in the
immediately preceding month.
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(4) Approval for adjustment is being given subject to
strict compliance with the instructions / guidelines
regarding educational qualifications of contract
employees under the National Health Mission decided
by the Central Government from time to time.
(5) Approval is being given for making applicable
adjustment of services of contract employees working
under the National Health Mission with effect from the
date of decision taken by the Cabinet.
(6) Approval is being given for taking decision at the
Department level for technical problems arising during
implementation of decision of the Cabinet.
03. The said Government Resolution is being issued with
reference to minutes of meeting of the Hon'ble Cabinet held on
13/03/2024.
04. The Government Resolution is made available on
Government of Maharashtra website www.maharashtra.gov.in
and its code number is 202403051440390917. This
Government Resolution is issued by certifying under digital
signature.
Under the order and in the name of the
Governor of Maharashtra.
MILIND JAYANT MHAISKAR”
28. A careful reading of the aforementioned Government
Resolution unequivocally goes to show that although the primary
objective of the GR appear to be to absorb the contractual
appointees, if necessary by amending the recruitment rules, yet,
the different resolutions contained therein, in our view, would
operate in independent spheres. While Resolution No.1
contemplates amendment of the Service Entry Rule for adjustment
of contractual employees working under the National Health
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Mission so as to provide recruitment of 70% by direct recruitment
and 30% by way of adjustment, Resolution No. 2 conveys the
general approval of the State Government in according to
relaxation of age limit to the extent of the tenure of service period
of such employees for the purpose of adjustment of contractual
employees working in the State under the National Health Mission,
who have completed service of ten years or more.
29. The aforesaid Government Resolution, in our considered
opinion, not only notifies a clear policy decision on the part of the
State Government to permanently absorb/accommodate the
contractual employees working for more than ten years under the
National Health Mission, but also clarifies that the contractual
employees engaged under the NHM scheme were working under
the State, i.e., State Government. Not only that, there is also a
categorical decision of the State Government to grant relaxation of
upper age limit to the deserving candidates, who have served for
more than ten years under the National Health Mission. If that be
so, viewed from that angle also, it is apparent that there is already
a policy decision on the part of the Government of Maharashtra to
grant relaxation of upper age limit to the eligible contractual
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employees serving under the National Health Mission and to
permanently absorb them. It appears that it is precisely on such
count that the State Government of Maharashtra has not
challenged the Judgment of the learned MAT before this Court.
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30. In view of the Government Resolution dated 14 March
2024, which has also been relied upon the by Learned Tribunal, we
are of the un-hesitant opinion that the Original Applicants, having
served the State under the National Health Mission Scheme, were
entitled to age relaxation, at least for the period of service
rendered by them. If such a criteria is applied to the Original
Applicants/Private Respondents herein, each of the three Original
st
Applicants would undoubtedly meet the age criteria as on 1
November 2015. As such, their candidature could not have been
rejected by the MPSC on the ground that the Original Applicants
were over-aged.
31. It must also be noted herein that in the Judgment and Order
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dated 20 March 2023, as referred to above, a Division Bench of
this Court had issued categorical direction upon the Writ
Petitioner- MPSC to consider the names of Original Applicants who
had already been interviewed, for the 67 vacant posts. The Private
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Respondents/ Original Respondents are evidently, included in the
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list of the Original Applicants referred to the Judgment dated 20
March 2023 passed by this Court. The said Judgment has attained
finality in the eyes of law. The plain reading of the operative part
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of the Judgment dated 20 March 2023 leaves no room for doubt
that the question of eligibility of those Original Applicants were no
longer open for debate. Subject to their merit position, the MPSC
would be bound to recommend their names for appointment.
There is no controversy in this case that all the three Original
Applicants have scored marks which would be sufficient to justify
their selection on merit. Therefore, by rejecting the candidature of
the Original Applicants on the ground that they were not eligible
on account of being over-aged, the MPSC has, in our opinion,
clearly acted in violation of the letter and spirit of the directions of
this court.
32. Insofar as the direction of the MAT requiring the MPSC to
recommend the names of the Original Applicants for relaxation of
the age is concerned, we find force in the argument of Mr Kulkarni
that the relaxation under the proviso to Rule 3(b) can only be
granted by the Government, and therefore, the MAT was not
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correct in issuing a direction to the MPSC to recommend the
names of the Original Applicants, for appointment in the post of
Dental Surgeon by observing that it was a fit case for relaxing the
age limit under Rule 3(b). It appears that the relaxation of age was
granted by the learned Tribunal by observing that in view of the
specialized experience acquired by the Original Applicants they
were entitled to such relaxation. Under the Rules, such relaxation
could only be granted by the Government and therefore, the
learned MAT was not correct in issuing such a direction. However,
since we have already held that the candidature of the Original
Applicants could not have been rejected on the ground that they
were over-aged, it would not be necessary for this Court to go into
that aspect in the matter in any further details.
33. Mr Kulkarni has also addressed elaborate arguments to
convince us that since the learned Tribunal has not granted relief
to the Original Applicants on the ground that the age restriction
was not applicable to them by virtue of their status as contractual
employees serving under the National Health Mission, hence, such
a relief cannot be granted to the private Respondents in Writ
Petition No. 1208 of 2025, since they have not challenged the
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Judgment and Order of learned Tribunal by filing a separate Writ
Petition. We are unable to accept such submission of Mr Kulkarni
for the following reasons .
34. Under Article 226 of India, the High Court exercises plenary
jurisdiction to pass such orders or directions in furtherance of
interest of justice and to mould a relief. In the case of Dwarka Nath
3
Vs. Income Tax Officer, Special Circle, D-Ward, Kanpur & Anr. , the
Hon’ble Supreme Court has observed that the power of the High
court under Article 226 of the Constitution of India is wide enough
to reach injustice wherever it is found. The constitution has
designedly used a wide language in describing the nature of power,
the purpose for which and on the person or authority against
whom it can be exercised. The High Court can not only issue writs
in the nature of prerogative Writs as understood in England, but
the scope of those writs is widened by the use of the expression
“nature” for the said expression does not equate the writs that can
be issued in India with those in England, but only draws an
analogy from them. The High Courts can issue directions, orders or
writs, other than the prerogative writs which enables the High
3
(1965) 57 ITR 349: 1965 SCC OnLine SC 61.
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Courts to mould the relief to meet the peculiar and complicated
requirements of this country.
4
35. In Union of India & Anr. Vs. SB Vohra & Ors. , the Supreme
Court has made the following observations on the power of judicial
review in paragraph 30, which are reproduced hereinbelow:-
“30. Judicial review is a highly complex and developing
subject. It has its roots long back and its scope and extent
varies from case to case. It is considered to be the basic feature
of the Constitution. The Court in exercise of its power of
judicial review would jealously guard the human rights,
fundamental rights and the citizens' right of life and liberty as
also many non-statutory powers of governmental bodies as
regards their control over property and assets of various kinds
which could be expended on building hospitals, roads and the
like, or overseas aid, or compensating victims of crime (See for
example, r. V. Secy. OF State for the Home Deptt., EX P Fire
Brigades Union).”
36. In ABL International Ltd. & Anr. Vs. Export Credit Guarantee
5
Corporation Ltd. & Ors. , the Supreme Court has observed that the
plenary right of the High Court to issue a prerogative writ will not
normally be exercised to the exclusion of other available remedies
unless the impugned action of the State or its instrumentality is
found to be arbitrary and unreasonable, so as to violate the
mandate of Article 14.
4
(2004) 2 SCC 150.
5
(2004) 3 SCC 553.
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37. From a careful analysis of the aforementioned decisions, it is
thus, crystal clear that while entertaining a Writ Petition in exercise
of discretionary jurisdiction under Article 226 of the Constitution
of India, the High Court would have wide powers to issue writ,
directions and orders, so as to zealously guard the constitutional
and legal rights of the citizens against arbitrary exercise of power
by the State or its instrumentalities. The plenary jurisdiction of the
High Court under Article 226 is original, discretionary, extra-
ordinary and comprehensive and is a vital component of the basic
structure of the Constitution. While exercising jurisdiction under
Article 226, the High Court does not sit in appeal over the decision
but exercises supervisory jurisdiction so as to examine the decision
making process on the touch stone of fairness, reasonableness and
non-arbitrariness in State action. Therefore, exercise of such
plenary jurisdiction cannot be shackled under the rigid procedural
constraints.
38. In the present case, we have held that the Original
Applicants, who are standing on equal footing, seeking similar
reliefs, are all eligible candidates and, therefore, their candidature
could not have been rejected by raising the plea of upper age limit.
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Having held as above, it would be impermissible for this Court to
decline relief to one set of Applicants merely on a technical plea
that they have not challenged the Judgment and Order of the
learned Tribunal on a particular ground. As has been observed
above, a Writ Petition under Article 226 of the Constitution of
India is not an Appeal under a statute. Therefore, extending a
differential treatment to the Respondent Nos. 1 and 2 in Writ
Petition No. 1208 of 2025 on such a technical ground, in our view,
would not only be highly inequitable but the same would also lead
to serious miscarriage of justice. In that view of the matter, we are
not inclined to accept the plea raised by Mr Kulkarni to the effect
that in the absence of any challenge made to the impugned
Judgment and Order of the learned MAT, the Writ Petitioners in
Writ Petition No. 1208 of 2025 would not be entitled to any relief.
39. Although we differ from the reasons recorded by the learned
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Tribunal in the Judgment and Order dated 25 July 2024 , yet, we
are in agreement with the operative part of the impugned
Judgment of the MAT, whereby, a direction has been issued to the
MPSC-Writ Petitioner to recommend the names of the Original
Applicants for appointment in the post of Dental Surgeon.
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Therefore, the directions contained in paragraph 23(2) of the
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Judgment and Order dated 25 July, 2024 passed by the learned
MAT is hereby confirmed. During the course of hearing, on a query
made by the Court, Mr Kulkarni, in his usual fairness, has
submitted that vacancies are still available to accommodate the
Original Applicants. We, therefore, provide that the direction of the
learned MAT in paragraph 23(2), as noted above, shall be
implemented by the MPSC and the State Government of
Maharashtra within a period of 6 (six) weeks from the date of
uploading this order.
40. With the above observations and directions, Writ Petition No.
1208 of 2025 and Writ Petition No. 1205 of 2025, preferred by the
MPSC, are disposed of. Writ Petition No. 15021 of 2025 also stands
disposed of in the light of the observations made here-in-above.
41. There would be no order as to costs.
(RANJITSINHA RAJA BHONSALE, J.) (SUMAN SHYAM, J.)
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