1 wp5266.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 5266 OF 2008
WITH
CIVIL APPLICATION NO. 11970 OF 2008
01. Rajendra Pandurang Pagare,
age 38 years, occup. unemployed,
r/of 2532, Ramai Nagar,
New Bhokardan, Tq. Bhokardan,
District Jalna.
02. Sk. Anisoddhin Sk. Kamroddhin,
age 33 years, occup. unemployed,
r/of Millan STD, Opp. Panchayat
Samiti, New Bhokardan, Taluka
Bhokardan, District Jalna. Petitioners
versus
01. The State of Maharashtra,
through the Chief Secretary,
Mantralaya, Mumbai.
02. Superintending Engineer,
P.W.D., behind Old High Court
Building, Aurangabad.
03. Member Secretary,
Selection Committee and
Executive Engineer, PWD (West)
Division, Padampura, Aurangabad.
04. Vijaykumar Bhagvan Pole,
age 35 years, occup. service.
05. Subhash Ganpati Dhature,
age 33 years, occup. service,
both r/o c/o R-2. Respondents
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WITH
WRIT PETITION NO. 4102 OF 2009
01. Kavita Vashishtra Taware,
(Kavita d/o Shrimant Unvane)
age 33 years, occup. unemployed,
r/of C/of Dadarao Pakhare,
Bhakti Construction,
Eknath Nagar, Beed-431122.
02. Vilas s/o Ramrao Bahirwal,
age 24 years, occup. unemployed,
r/of Opp. Saraswati Vidyalaya,
Mauli Colony, Old Dhanora Road,
Beed- 431122.
(Petitioner No.2 deleted as per
Court's order dated 10.6.2011)
03. Deepak s/o Baburao Gavhane,
age 21 years, occup. unemployed,
r/of at post Pali, Taluka and Dist.
Beed.
04. Ranjit s/o Baburoa Gavhane,
age 24 years, occup. unemployed,
r/of at post Pali, Tq. & Dist.Beed.
05. Sachin s/o Shrimant Unvane,
age 24 years, occup. unemployed,
r/of c/of Dadarao Pakhare,
Bhakti Construction,
Eknath Nagar, Beed- 431122.
06. Sanjay s/o Ganpatrao Mahanwar,
age 37 years, occup. unemployed,
r/of at post Tq. and Dist. Beed,
(Trade Union Center, Shriram nagar
Beed).
07. Jagdish s/o Bhikan Giri,
age 40 years, occup. unemployed,
r/of 4-40-476, Ashtavinayak Colony,
Jai Bhavani Nagar, N-4, Cidco,
Aurangabad.
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3 wp5266.08
08. Parshuram s/o Dnyanoba Jadhav,
age 27 years, occupation: labour,
r/of Subash Colony, Nairandi Road,
Beed. Petitioners
versus
01. The State of Maharashtra
Through the Secretary,
P.W.D. Department,
Mantralaya, Mumbai-32.
02. Superintending Engineer,
P.W. Department,
Circle, Aurangabad.
03.
Executive Engineer,
P.W. Department,
Padampura, Aurangabad.
04. Girish S/o Shrikrishna Dhawale
05. Bhanudas S/o Ramchandra Nikalje
06. Manoj S/o Vinayakrao Chaudhary
07. Rajendra S/o Laxman Chaudhary
08. Sameer S/o Namdeo Nirukhe
09. Chandrakant S/o Shankarrao Sataw
10. Harish S/o Vishnu Garje
11. Rajesh S/o Madhukarrao Kankale
12. Sanjaykumar S/o Linguram Bhosale
13. Balasaheb S/o Deosing Rathod
14. Anju s/o Sambhajirao Kale
15. Narendra S/o Shriram Bhagat
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16. Sanjay S/o Vishnu Bhorde
17. Pravin S/o Shrikrushna Tawde
18. Sudhakar S/o Sulaji Patil
19. Babulal S/o Ramlal Choundiye
20. Mangesh S/o Anant Gosavi
21. Ashish S/o Shirish Waghchaure
22. Mahesh S/o Prabhakar Kharche
23. Dattatrya S/o Shiuram Munjal
24.
25.
Surkha Bhimrao Korke
Shilpa Chandrabhan Jadhav
26. Shradha Shivajirao Chavan
27. Geetanjali Ramrao Gawande
28. Smita Panditrao Shiradhonkar
29. Pradnyarani Prabhakar Bhuktar
30. Yogita Kalidas Gandale
31. Suvarna Vijay Sonawane
32. Ashvini Balajipant Kulkarni
33. Supriya Ravikiant Dhokar
34. Bahirji S/o Udhav Shinde
35. Satish S/o Tukaram Rathod
36. Devchand S/o Zamu Rathod
37. Praveen S/o Chindhu Jadhav
38. Sanjay S/o Nandusing Chavan
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39. Manoj S/o Tulshiram Rathod
40. Sunil S/o Mangilal Rathod
41. Mahesh S/o Malhari Khandagle
42. Purushottam S/o Uddhaotrao Meshram
43. Manoj S/o Laxman Jiwanwal
44. Mukesh S/o Ashok Tongire
45. Sandip S/o Ramdas Yadmarale
46. Saptnil S/o Laxmanrao Hande
47.
48.
Sanjay S/o Mainaji Bansode
Chandrashekhar S/o Ramesh Kundare
49. Dhanraj S/o Kisanrao Charthal
50. Vinayak S/o Pralhad Gawade
51. Ganesh S/o Narayanswami Dakur
52. Minketan S/o Bhanudasji Kale
53. Tukaram S/o Vitthalrao Pingale
54. Sunil S/o Shaligram Jumle
55. Krishna S/o Hiralal Sagar
56. Balika Madhukar Suryawanshi
57. Swati Sheshrao Ghodke
58. Dipali Ambadas Fiske
59. Karuna Baburao Zade
60. Pushpa Bhaskar Chavan
61. Priti Trimbak Sirsath
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62. Rahul S/o Prabhakar Satdive
63. Subhash S/o Ganpati Dhature
64. Harish S/o Bhagwan Jagale
65. Amit S/o Nasir Tadvi
66. Ganesh S/o Manik Ushire
67. Priya Ramesh Chilwar
68. Suresh S/o Prabhu Chaure
69. Mahesh Rajaram Gayakwad
70.
71.
Vitthal S/o Jagdaorao Shinde
Baburao S/o Ambadasrao Dhingane
72. Omprakash S/o Madhukarrao Khursade
73. Vijaykumar S/o Bhagwan Pole
74. Pramod S/o Rajaram Doiphode
75. Indu Shriram Damle
76. Ajay Rangnath Satpute
77. Yogesh S/o Tukaram Kangankar
78. Dhiraj S/o Purushottam Bansod
79. Sandip S/o Giridhar Bhalerao
80. Sumedh S/o Pritam Sapkale
81. Anant S/o Wasudeo Tayade
82. Sachin S/o Arjun Sapkale
83. Samit S/o Ashok Shinde
84. Ganesh S/o Dadarao Magare
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85. Shrikant S/o Pralhadrao Handare
86. Anil S/o Namdeorao Suroshe
87. Sanjay S/o Nishikant Bagate
88. Kiran S/o Shankar Tayade
89. Sudam S/o Kerba Ukande
90. Santosh S/o Vishnu Shirsath
91. Sachin S/o Gangadhar Kamble
92. Changdev S/o Bhimrao Bangar
93.
94.
Sachin S/o Sadashivrao Wagh
Shamsundar S/o Gahininath Kayande
95. Bramhchari S/o Shivram Ghadge
96. Purushottam S/o Keshaorao Chopkar
97. Tushar S/o Purshottam Ugale
98. Nilesh S/o Dattatraya Metkar
99. Dattatrya S/o Bhagwantrao Kapile
100. Prashant S/o Dhanyakumar Doke
101. Arun S/o Tryambakrao Dahake
102. Datta S/o Shamrao Taro
103. Dnyaneshwar S/o Gajanan Harne
104. Ramesh S/o Balkrushna Rudsamudra
105. Shashikant S/o Uttam Ingale
106. Shabana Gafursaheb Shaikh
107. Aswini Rajendra Gore
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108. Swati Prakash Jadhav
109. Shubhangi Santosh Patil
110. Bhagyashri Girdhar Sanse
111. Bharat S/o Sudam Chavan
112. Manoj S/o Shivaji Jadhav
113. Sandeep Tukaram Vikhe
114. Vijendra S/o Ashokrao Dekate
115. Sagar S/o Mohanrao Gewar
116. Rambhau Santaram Rashinkar
117. Diksha Sahebrao Pagare
118. Sanjay S/o Sheshrao Dhore
119. Sandeep S/o Shriram Bathe
120. Ajay S/o Ramkrishna Patil
121. Vijay Keshaorao Chopkar
122. Swati Venkatrao Birajdar
Age of all 30 to 35 years,
Occ. of all Civil Engineering
Assistants with Resp. no. 2. ..Respondents
----------
Shri R.R. Mantri, Advocate for Petitioners in both the petitions.
Shri N.B.Khandare, Govt. Pleader for Resp. Nos. 1 to 3 in both
petitions.
Shri Murli Karad Advocate, holding for Shri S.S. Thombre Advocate
for Respondent No.4 in WP 5266/08 and Respondent No. 73 in Writ
Petition no.4102 of 2009.
Shri Rajendra Deshmukh, Adv. for Respondent Nos. 5 in WP No.
5266/2008 and Respondent Nos. 30, 56, 58, 65, 71, 77, 84, 87 and
93 in WP No. 4102/2009.
Shri S.S. Halkude, Advocate for Respondent Nos. 5, 52, 53, 74, 85,
95, 106, 111, 119 and 121 in Writ Petition No.4102/2009.
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Coram : Smt. Nishita Mhatre & M.T. Joshi, JJ.
Judgment reserved on: 10th June 2011.
Judgment pronounced on: 04th July 2011.
Judgment (Per: Smt. Mhatre, J.)
01. Rule. Rule made returnable forthwith, with the consent of the
parties. Since the issues involved in both these petitions are the same,
they have been heard together, with the consent of the parties.
02.
The challenge in both these petitions is to the selection
private respondents (hereinafter referred to as the respondents) to the
of the
posts of Civil Engineering Assistants, pursuant to the advertisement No.
2/2008. The petitioners claim that these respondents did not possess the
qualifications required for being selected to the posts of the Civil
Engineering Assistants, in consonance with the recruitment rules. The
petitioners contend that each of them had undertaken a special course
expected to be completed by candidates aspiring to be Civil Engineering
Assistants, whereas the respondents had no such qualification. In
essence, therefore, what has been challenged in the present petition, is
the selection of the respondents to the posts of the Civil Engineering
Assistants.
03. Mr. Khandare, the learned Government Pleader appearing for the
State and its officers, who are arraigned as the respondents in the
petitions, and Mr. Deshmukh, the learned Counsel appearing for the
private respondents, raised a preliminary objection to the maintainability
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of the present petitions. They pointed out that the petitioners ought to
have approached the Maharashtra Administrative Tribunal, to have their
grievance redressed, rather than preferring writ petitions in this court,
under Articles 226 and 227 of the Constitution of India. They have relied
upon the judgement of the Supreme Court in the case of L. Chandra
Kumar vs Union of India and others reported in (1997) 3 SCC
261, wherein a bench of seven learned judges has held that the only
remedy available to employees challenging the recruitment rules for
posts in State Govt., or with respect to any service matter, is to file an
application before the Administrative Tribunal, under Section 15 of the
Administrative Tribunals Act. Counsel therefore, submitted that the writ
petitions ought to be dismissed in limine.
04. Mr. Mantri, the learned Counsel for the petitioners, contended that
the petitioners should not be driven to approach the Administrative
Tribunal at this stage, because all of them would soon be crossing the
age limit prescribed for being appointed as Civil Engineering Assistants.
He submitted that since there are no disputed facts, it would be pointless
to approach the Administrative Tribunal. According to him, the
petitioners had, in fact, chosen to curtail their right of approaching the
Administrative Tribunal and availing of the consequential remedy, in
case the Administrative Tribunal errs in its decision. He, pointed out that
a writ of quo warranto, which is sought in the present petitions against
the private respondents, cannot be issued by the Administrative Tribunal
and, therefore, the only course available to the petitioners, was to
approach this Court. He further submitted that although the petitions
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were filed in the year 2008/2009 and notices had been issued to the
respondents, the matters have seen the light of the day before us after
almost three years and, therefore, the petitioners are well within their
rights to insist on being heard by this Court in its extra-ordinary
jurisdiction. He then submitted that when these matters appeared before
successive Division Benches for admission, the respondents had raised
the same preliminary objection and the Division Benches were satisfied
that the petitioners had made out a case for being heard by this court in
its extra-ordinary jurisdiction. He relied upon several judgements in
support of his submission that the petitioners are entitled to invoke the
extraordinary writ jurisdiction of this Court although a statutory remedy
is available to them, as their fundamental rights have been affected. We
would presently advert to these judgements.
05. While considering whether Administrative Tribunals constituted
under the Administrative Tribunals Act, 1985 are empowered to
adjudicate on the vires of statutory provisions or consider whether there
is a breach of any fundamental rights guaranteed under the Constitution,
the Supreme Court in the case of L. Chandra (supra) has, in paras 93 and
99, opined thus:
“93. Before moving on to other aspects, we may summarise our
conclusions on the jurisdictional powers of these Tribunals. The
Tribunals are competent to hear matters where the vires of
statutory provisions are questioned. However, in discharging this
duty, they cannot act as substitutes for the High Courts and the
Supreme Court which have, under our constitutional set-up, been
specifically entrusted with such an obligation. Their function in::: Downloaded on – 09/06/2013 17:27:00 :::
12 wp5266.08this respect is only supplementary and all such decisions of the
Tribunals will be subject to scrutiny before a Division Bench of therespective High Courts. The Tribunals will consequently also have
the power to test the vires of subordinate legislations and rules.However, this power of the Tribunals will be subject to one
important exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes following thesettled principle that a Tribunal which is a creature of an Act
cannot declare that very Act to be unconstitutional. In such cases
alone, the High Court concerned may be approached directly. All
other decisions of these Tribunals, rendered in cases that they arespecifically empowered to adjudicate upon by virtue of their parent
statutes, will also be subject to scrutiny before a Division Bench oftheir respective High Courts. We may add that the Tribunals will,
however, continue to act as the only courts of first instance inrespect of the areas of law for which they have been constituted
By this, we mean that it will not be open for litigants to directly
approach the High Courts even in cases where they question the
vires of statutory legislations (except, as mentioned, where thelegislation which creates that particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal concerned.”
99. In view of the reasoning adopted by us, we hold that clause
2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent
they exclude the jurisdiction of the High Courts and the Supreme
Court under Articles 226/227 and 32 of the Constitution, are
unconstitutional. Section 28 of the Act and the “exclusion of
jurisdiction” clauses in all other legislations enacted under theaegis of Articles 323-A and 323-B would, to the same extent, be
unconstitutional . The jurisdiction conferred upon the High Courts
under Articles 226/227 and upon the Supreme Court under Article
32 of the Constitution is a part of the inviolable basic structure of
our Constitution. While this jurisdiction cannot be ousted, other
courts and Tribunals may perform a supplemental role in
discharging the powers conferred by Articles 226/227 and 32 of::: Downloaded on – 09/06/2013 17:27:00 :::
13 wp5266.08the Constitution. The Tribunals created under Article 323-A and
Article 323-B of the Constitution are possessed of the competenceto test the constitutional validity of statutory provisions and rules.
All decisions of these Tribunals will, however, be subject to scrutinybefore a Division Bench of the High Court within whose jurisdiction
the Tribunal concerned falls. The Tribunals will, nevertheless,
continue to act like courts of first instance in respect of the areasof law for which they have been constituted. It will not, therefore,
be open for litigants to directly approach the High Courts even in
cases where they question the vires of statutory legislations
(except where the legislation which creates the particular Tribunalis challenged) by overlooking the jurisdiction of the Tribunal
concerned. Section 5(6) of the Act is valid and constitutional andis to be interpreted in the manner we have indicated. ”
06. In our opinion, therefore, there can be no manner of doubt that the
only remedy available to the petitioners was to file an application before
the Maharashtra Administrative Tribunal under the aforesaid Act. The
petitioners had ample opportunity to approach the Tribunal, once the
respondents had raised the issue regarding maintainability of the writ
petitions. However, for approximately three years, the petitioners
neglected to remedy this lapse on their part. They have chosen to
continue to prosecute these writ petitions, knowing full well that an
appropriate alternative and efficacious remedy is available to them. It is
true that the existence of a statutory remedy need not always be a
hurdle in the way of the High Court in exercising its writ jurisdiction.
However, it is now well settled that although the constitutional remedy
under Article 226 and 227 of the Constitution of India is available, there
is a self imposed restraint observed by the High Court while exercising
this extraordinary discretionary jurisdiction. Mr. Mantri has relied upon
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14 wp5266.08the judgments of the Supreme Court in the cases of (i) L. Hirday
Narain vs. Income-Tax Officer, AIR 1971 SC 33, (ii) State of
H.P. vs. Gujarat Ambuja Cement Ltd. AIR 2005 SC 3936, (iii)
K. Ventatachalam vs. A. Swamickan (1999) 4 SCC 526, (iv)
Harbanslal Sahnia vs. Indian Oil Corp. Ltd AIR 2003 SC 2120,
and judgment of the Full Bench of the Andhra Pradesh High
Court in the case of Secretary, Badruka College of Commerce
& Arts. vs. State, AIR 1997 A.P. 179, in support of his
submission that the writ petitions are maintainable and can
be entertained by this Court in spite of the statutory remedy.
07. In State of H.P. vs. Gujarat Ambuja Cement Ltd. (supra),
the Supreme Court, after considering its earlier judgements on the issue
whether the High Court ought to exercise its writ jurisdiction when an
alternate remedy is available, has held as follows;
“25. Where, under a statute there is an allegation of infringement
of fundamental rights or when on the undisputed facts the taxingauthorities are shown to have assumed jurisdiction which they do
not possess can be the grounds on which the writ petitions can be
entertained. But, normally, the High Court should not entertain writ
petitions unless it is shown that there is something more in a case,
something going to the root of the jurisdiction of the officer,something which would show that it would be a case of palpable
injustice to the writ petitioner to force him to adopt the remedies
provided by the statute. It was noted by this Court in L. Hirday
Narain v. Income Tax Officer, Bareilly (AIR 1971 SC 33) that if the
High Court had entertained a petition despite availability of
alternative remedy and heard the parties on merits it would be
ordinarily unjustifiable for the High Court to dismiss the same on the::: Downloaded on – 09/06/2013 17:27:00 :::
15 wp5266.08ground of non exhaustion of statutory remedies; unless the High
Court finds that factual disputes are involved and it would not bedesirable to deal with them in a writ petition.”
08. Therefore, although “Article 226 of the Constitution is a store-
house or a reservoir or even a dam of justice, equity and good
conscience which are meant for exercising within the discretionary power
of the Court vested in that article to do full and complete justice” as
observed by the Full bench of the Andhra Pradesh High Court in the case
of Secretary, Badruka College of Commerce & Arts (supra), one
will have to reconcile these principles with the decision of the Apex Court
in L. Chandra’s case (supra). The Apex Court, as observed earlier, has
held in this judgement that the High Court should not entertain any
petitions pertaining to service matters, as envisaged under the
Administrative Tribunals Act, and the parties must be relegated to the
Tribunal. In our opinion, the petitioners ought to have, therefore,
approached the Administrative Tribunal in the first instance, rather than
invoking this court’s extra-ordinary jurisdiction.
09. We do not find any order on record in these proceedings indicating,
as Mr. Mantri wants us to believe, that successive Division Benches had
heard the preliminary objections raised by the respondents and had
opined that the petitions were maintainable. The record does not
support this contention of Mr. Mantri. His submissions that because
there are no disputed questions of facts, or because the petitioners are
on the verge of crossing the age limit for recruitment to the posts of Civil
Engineering Assistants, the petitioners need not have approached the
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16 wp5266.08Tribunal, are unacceptable. Mr. Mantri’s submission that the petitioners
have, in fact, by filing these petitions, curtailed one remedy available to
them and their right to challenge the order passed by the Administrative
Tribunal, if it decides against them, is stated only to be rejected. The
petitioners have done nobody any favour by choosing to approach this
court, although an efficacious alternate remedy is available to them. In
fact, as held in the case of L. Chandra (supra) by the Supreme Court,
the statutory remedy is the only remedy available to an employee
seeking any redressal of their grievances regarding service matters.
10.
We have no manner of doubt, therefore, that the Writ Petitions
ought to be dismissed in limine. However, since the petitions have been
adjourned time and again for one reason or the other for almost three
years, we have considered the merits of the petitioners’ case.
11. On merits, Mr. Mantri has argued that the petitioners had
completed a course which was tailor-made for the post of Civil
Engineering Assistants. He pointed out that none of the Respondents
had completed this course. According to him, the Respondents had
secured Diplomas or Degrees in Civil Engineering which would not, in
any way, indicate that they were qualified to be appointed as Civil
Engineering Assistants, which requires specific knowledge. He then
submitted that the rules for recruitment of Civil Engineering Assistants do
not admit of any departure from these qualifications and, therefore,
merely because the Respondents were qualified with degrees and
diplomas in engineering, it could not result in their appointments to the
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17 wp5266.08posts of Civil Engineering Assistants. The learned Advocate has relied on
the judgement of this Court in Machindra Namdeo Kanade and ors.
vs. The State of Maharashtra and ors. (Writ Petition No. 7195
of 2006 and connected matters, decided on 24.3.2009). He
pointed out that the Division Bench, while dealing with the same
recruitment rules, has, in para 13, observed thus;
“13. It is undisputed before us that once Recruitment
Rules under Article 309 of the Constitution of India had beenframed, the recruitment to the post for which the Rules have
been
withframed should be made strictly in accordance
the Recruitment Rules prescribed. No deviation is
contemplated nor any such deviation be countenanced.The Recruitment Rules particularly dealing with the
recruitment by nomination clearly spell out the educational
qualifications which a candidate must possess for beingappointed on the post of Civil Engineering Assistant. The
language of the Recruitment Rules is clear and explicitand does not even by implication lead to an inference
that the qualification which is prescribed is the minimum
qualification. We are informed that no instructions havebeen issued for equating the qualification possessed by
the selected candidates with the qualification which is
prescribed under the Rules. Since the language of the Rules
is explicit and clear and is not ambiguous, it is notnecessary to refer to the various Government Resolutions
as well as the recommendations of the Study Group to
determine if the qualification which is prescribed under the
Rules is the only qualification or whether it is the minimum
qualification. However, even if a reference is made to the
Govt. Resolution and the Report of the Study Group, it is
clear that the qualification for appointment by nomination::: Downloaded on – 09/06/2013 17:27:00 :::
18 wp5266.08to the post of Civil Engineering Assistant is concerned, the
qualification which is prescribed is “the only qualification”and not minimum qualification. The Government has not
granted equivalence to the qualification possessed by therespondents/selected candidates to the qualification which
is prescribed under the Rules. If that be so, then the
respondents obviously do not possess the requisiteeducational qualification. At this juncture a reference may
usefully be made to the educational qualifications
prescribed in the advertisement. The language of the
advertisement is clear and unambiguous and contemplatesonly the qualification which is prescribed under the Rules.
There is not even an oblique reference to invite applicationsfrom candidates possessing other equivalent qualification.
If that be so, the qualification which a candidate mustpossess for being appointed to the post of Civil Engineering
Assistant would be the educational qualification prescribed
under the Rules and no other qualification. ”Mr. Mantri also submitted that the recruitment rules do not envisage
equivalence being given to either a Degree or A Diploma in Engineering
by the government. By the amendment of 11.3.2008, according to him,
equivalence has been granted only to the courses for Architectural
Draughtsman and Construction Supervisor. He, therefore, submitted that
the government could not recruit any other person except the petitioners
to these posts, as they were suitably qualified.
12. Mr. Khandare, the learned Government Pleader drew our attention
to the notification indicating that the recruitment rules have amended,
on 7.3.2008. According to him, rule 3(b) (i) and (ii) of the 1998
recruitment rules, has been amended inasmuch as the government is
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19 wp5266.08empowered to appoint, not only those who have completed the course of
Civil Engineering Assistant within one year from a recognized institution,
but also those who have completed those courses which the government
has declared to be equivalent to the aforesaid course. He drew our
attention to the amended rule wherein the aforesaid qualifications are
prescribed as the “minimum” qualifications and not the “only”
qualification. He further submitted that the amended rules do not bar
the appointment of any person who has a higher qualification, as the
minimum qualification required has been prescribed in the rules. Mr.
Khandare then urged that, considering the hierarchy of the employees in
the Public Works Department, a person eligible to be appointed to the
post of Junior Engineer has the liberty to opt for the post of Civil
Engineering Assistant which is a subordinate post. That being so, the
government felt the need to recruit such persons to the posts of Civil
Engineering Assistants, who would be suitable and qualified to be
appointed as Junior Engineers at a later point of time. He
further submitted that the judgement of the Division Bench in
Machindra Namdeo Kanade (supra) has no application to the facts
of the present case, as the original rule was considered and interpreted
in that judgement and not the amended one. Mr. Khandare also
submitted that the advertisement, which was issued on 30.6.2008,
prescribed the minimum qualification for recruitment to the posts of Civil
Engineering Assistants, based on the amended rule. Besides, as
contended by the learned Government Pleader, the petitioners do not
possess the Civil Engineering Assistant Certificate, but only an equivalent
certificate i.e. the Certificate of Construction Supervisor. He submitted
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20 wp5266.08that though the petitioners were qualified with the Construction
Supervisor’s Certificate Course, they were not recruited, as that was only
the minimum qualification required after the amendment to the
recruitment rules. He further pointed out that on 26.5.2010, the
recruitment rules have been amended again, and the Construction
Supervisors’ qualification has been deleted, whereas the Diploma and
Degree in Engineering have been included. Mr. Khandare, therefore,
submitted that no case has been made out by the petitioners for
interference by this court in its extra-ordinary jurisdiction.
13.
Mr. Deshmukh, the learned Advocate appearing for the private
respondents, has submitted that after participating in the selection
process, the petitioners could not challenge the same, having failed to be
appointed. He fortified this argument by relying on the judgement of the
Supreme Court in the case of University of Cochin vs. V. N.S.
Kanjoonjamma and others, reported in AIR 1997 SC 2083, and the
judgment of this Court in Sonali Ramkrishna Bayani vs. State of
Maharashtra, reported in 2003 (5) Mh.L.J. 738. He submitted
further that the petitioners were well aware, when they applied pursuant
to the advertisement, that the recruitment rules had been amended and
the minimum qualification prescribed was the completion of one year
course for Civil Engineering Assistants, or equivalent courses viz. or the
Construction Supervisor’s Certificate, or Architectural Draughtsman’s
Certificate or Civil Draughtsman’s Certificate. He pointed out, therefore,
that the respondents, who had better qualifications, had applied, in view
of the amended rules and were selected.
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21 wp5266.08
14. Advertisement No. 2 of 2008, was issued on 30.6.2008, for
recruitment to the posts of Civil Engineering Assistants. It was clearly
issued after the amendment to the recruitment rules, on 7.3.2008. The
unamended recruitment rules dated 18.6.1998 applicable for the posts of
Civil Engineering Assistants, which had been framed under Article 309 of
the Constitution, prescribed certain qualifications for being appointed as
Civil Engineering Assistants. Rule 3(b) (i) and (ii) thereof stipulated as
follows:
“3.
Appointment to the post of Civil Engineering Assistant Group-
C, in the Public Works Department shall be made either:(a)………………………………………………………………………………….
(i) ………………………………………………………………………………….
(ii) …………………………………………………………………………………
3(b) by nomination from amongst the candidates who :-
(i) unless already in the service of Government are not
more than thirty years of age.(ii) Have passed the Secondary Certificate Examination
and have passed the Civil Engineering Assistant’s one year
Course examination conducted by the Government Technical
Institute of the Technical Education Department ofGovernment;
Provided that the age limit may be relaxed upto 40 years in favour
of the candidates, who have passed the Civil Engineering Assistant’s
one year Course examination conducted by the Government
Technical Institute of Technical Education Department ofGovernment during the year 1980-81 to 1986-87, subject to0
verification of their certificates by the Technical Education
Department.”
15. After the amendment to the rules on 7.3.2008, rule 3(b) (i) and (ii)
have been substituted and the eligibility criteria prescribed for being
recruited as Civil Engineering Assistants, reads as follows:
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22 wp5266.08
(i) are not more than thirty three years of age;
(ii) have passed the Secondary School Certificate Examination,
and
(iii) have completed Civil Engineering Assistants one year
course conducted by the Government or Government
recognized institutes as minimum qualification, or have
acquired any other qualification declared by the
Government equivalent thereto, from time to time.”
(emphasis supplied.)
16. By the Government Resolution dated 11.3.2008, the Courses for
the Architectural Draughtsman and the Construction Supervisors were
considered
equivalent to the Civil Engineering Assistant’s Certificate
Course of one year.
17. Both the Petitioners in Writ Petition No.5266 of 2008 are not
qualified with the Certificate course for Civil Engineering Assistants, but
the equivalent course i..e. of Building Construction Supervisor. Petitioner
No.2 claims to be a project affected person. Petitioner Nos. 1 and 5 in
Writ Petition No.4102 of 2009 claim that they belong to the Scheduled
Caste and are project affected persons. The other petitioners in the
same writ petition belong to the Nomadic Tribe and claim to be project
affected persons. All of them are qualified with the Construction
Supervisor’s Examination Certificate issued by the Maharashtra State
Board of Vocational Examinations. Thus, none of the petitioners in either
of the petitions, has completed the Civil Engineering Assistant’s Course,
but the equivalent course recognized under the Govt. Resolution dated
11.3.2008.
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18. The respondents, on the other hand, in both the petitions are not
qualified either as Civil Engineering Assistants, or Construction
Supervisors, or Architectural Draughtsman. Each of them, it appears, has
either a Diploma or Degree in engineering. These qualifications are
considered to be higher than the minimum required qualification for
recruitment to the post of Civil Engineering Assistants. The State in its
wisdom has chosen to appoint the respondents in accordance with the
amended recruitment rule. In our opinion, therefore, the contention of
the petitioners that the respondents were not qualified to be recruited to
the aforesaid posts, is untenable. As stated earlier, the judgment of the
Division Bench in the case of Machindra (supra) was in respect of the
unamended rule, which required that the persons to be recruited to the
posts of Civil Engineering Assistants, must be qualified with the
Certificate course for Civil Engineering Assistants, alone. The Division
Bench, while interpreting the unamended rule, had accepted the
arguments advanced on behalf of the petitioners in that case, that there
was no equivalence granted in respect of any other course, nor was it the
“minimum qualification”, but the “only requirement.”
19. In the case of Government of Andhra Pradesh vs. P. Dilip
Kumar and another (1993) 2 SCC 310, the Supreme Court has, in
paras 15 and 16, observed thus;
“15. The second decision to which our attention was invited is a
judgment of a learned Single Judge of the Gujarat High Court in
Gujarat State Sales Tax Non-Gazetted Employees’ Association vs.
State of Gujarat. In that case 120 posts of Sales Tax Inspectors
were required to be filled in by direct selection. An advertisement
was issued in the newspaper and as many as 15,000 candidates
applied in response thereto. This necessitated screening of the::: Downloaded on – 09/06/2013 17:27:00 :::
24 wp5266.08candidates at the threshold. It was found that more than 1000
applicants were holding first class degrees in different faculties of
recognised Universities; 580 of them were first class Commercegraduates, 101 first class Arts graduates and about 500 first class
Science graduates. Having regard to the number of vacancies the
field of choice was restricted to first class graduates only and itwas decided not to call for interview a second class or third class
graduate including graduates having Commerce degree with
Accountancy as a subject. It was this decision which was put in
issue before the learned Single Judge by candidates who were
eliminated at the threshold from consideration. The relevant ruleprovided that the appointment to the post of Sales Tax Inspectors
shall be made either (a) by direct selection or (b) by promotion.
Insofar as direct selection was concerned, the educational
qualification required was stated to be a degree of a recognised
University. The proviso laid down as under;
“Provided that preference shall be given to a candidate who
possesses the degree of B. Com. with Accountancy or
Chartered Accountants, or possesses a qualification
recognized to be equivalent to such examination by the
Government of Gujarat.”
In the context of this preference rule, it was observed in para 7 of
the judgment as under;
“To hold that the rule of preference was enacted to give to
Commerce graduates with Accountancy or to candidateshaving other prescribed qualifications an absolute preference
over the graduates of other faculties would be to denude the
substantive provision of much of its force and effect and to
covert the rule of preference into a rule of reservation thereby
obliterating altogether the right of other candidatespossessing degree of recognised Universities in various other
faculties to be considered for the post. ”
It is true that notwithstanding the preference rule it is always open
to the recruiting agency to prescribe a minimum eligibility
qualification with a view to demarcating and narrowing down the
field of choice with the ultimate objective of permitting candidates
with higher qualifications to enter the zone of consideration. It
was, therefore, held that screening a candidate out of
consideration at the threshold of the process of selection is neither
illegal nor unconstitutional if a legitimate field demarcating the
choice by reference to some rationale formula is carved out. Thus,
the challenge based on Articles 14/16 of the Constitution was
repelled. We are in agreement with the ration of this decision and
that is enough to negative the claim of candidate who had
preferred O.A. Nos. 1736 to 1739 of 1990 and who were not called
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for interview on their failing to secure the minimum qualifying
marks in the written test.
16. In the present case also the zone of consideration was
narrowed by eliminating candidates who did not succeed in the
qualifying test and out of those succeeded in the qualifying test
and secured the minimum marks after interview were considered
and thereafter in the process of selection the preference rule was
applied by first choosing the post-graduates and thereafter the
graduates. We have already pointed out above that classification
on the basis of higher educational qualification with a view to
achieving improvement in administrative performance is not
abhorrent to Articles 14/16 of the Constitution. We are, therefore,
of the opinion that the view taken by the learned Single Judge of
the High Court on a true interpretation of the relevant rule in the
context of the historical background was a plausible view and
should commend acceptance as it would advance the cause of
efficiency in a highly technical service. We, therefore, think that
even if two views were possible, the Tribunal ought not to have
unsettled the legal position settled earlier by the High Court with
which even this Court refused to interfere in SLP. For the foregoing
reasons we do not approve the view subsequently taken by the Tribunal. ”
20. Thus, the submission of Mr. Mantri that the fundamental rights of
the petitioners are violated because of the recruitments made on the
basis of minimum qualification, is unsustainable. It is always open for the
Government to prescribe the qualifications, whether they are minimum
qualifications as in the present case, or the only qualification as in
Machindra’s case.
21. In the case of S. Nagraj vs. State of Karnataka, 1993 Supp
(4) SCC 595, the Apex Court has observed that possessing the
minimum qualification prescribed under the recruitment rules does not
lead to an inference that an appointment to the post must be made. It
only provides for the eligibility. The Apex Court, in para 14, has further
observed thus;
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“14. ……………………………………………………………………………………..
Appointment of a graduate or a post-graduate to a post which
carries lower qualification by itself, does not amount to
exploitation nor it is violative of any constitutional guarantee or
principle.”
22. The learned Counsel for the respondents, as well as the learned
Govt. Pleader, are right in their submission that once the petitioners had
participated in the selection process held after the amendment to the
recruitment rules, they could not question the same, by contending that
their non recruitment amounted to an illegality. The procedure was
correctly followed. The reliance placed by the learned counsel
Respondents, on the judgment of the Supreme Court in University of
for the
Cochin vs. V. N.S. Kanjoonjamma and others, reported in AIR
1997 SC 2083, and the judgment of this Court in Sonali Ramkrishna
Bayani vs. State of Maharashtra, reported in 2003 (5) Mh.L.J.
738, is apt.
23. In support of his submission that the respondents lacked the basic
qualification for recruitment, Mr. Mantri, the learned Advocate for the
petitioners, has relied on the judgment of the Supreme Court in K.
Venkatachalam vs. A. Swamickan and another, reported in
(1999) 4 SCC 526. We have already found that what was prescribed
in the recruitment rules after the amendment to the Rules in 2008 was
the basic qualification, which was the “minimum qualification” and
not “the only qualification.” Therefore, the submission of the learned
Advocate for the petitioners in this behalf, is untenable.
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24. Clutching at the proverbial last straw, Mr. Mantri submitted that
since there were vacancies available with the government for the posts
of Civil Engineering Assistants, the petitioners should be appointed to the
posts. We are afraid, this procedure cannot be adopted for more than
one reason. There is no material on record to suggest that the
petitioners were the only persons who were qualified for being appointed
to the posts of Civil Engineering Assistants and that other candidates on
the wait list were less meritorious than the petitioners. Besides, as
submitted by the learned Govt. Pleader, the vacant posts would have to
be re-advertised as the waiting list lapses after two years.
25. In the circumstances, we find that there is no substance in both
these petitions and they are, therefore, dismissed. Rule discharged. No
order as to costs. Consequently, the Civil Application is also dismissed.
(M.T.JOSHI, J.) (SMT. NISHITA MHATRE, J.)
pnd/wp5266.08
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