JUDGMENT
S.M. Daud, J.
1 Article 226 is invoked to quash to quash the selection of candidates for filling up eight posts of Ward Officers in the respondent Bombay Municipal Corporation (B.M.C.) and to direct a fresh selection by following the ratio of 50-50 between nominees and promotees, allegedly enjoined by the existing Rules.
2. The B.M.C., like any other administrative organisation, works through small Units under the direct supervision of departmental heads. The Units in most of the cases are ward or Branch Offices. At the head of these Offices are Ward Officers. In this class of Officers are two categories: ( i) Senior Ward Officers numbering 16 and (ii) Ward Officers numbering 32. The posts being ones attracting section 80-B of the B.M.C. Act, Rules (Ex. 3 to the return of the B.M.C.) prescribing the qualifications which framed way back in 1965. Thereunder, the following were the qualifications prescribed for an aspirant to the afore-mentioned post :-
“(i) hold a degree in Arts, Science, Law, Commerce, Medicine or Engineering of a recognised University or an equivalent qualification;
(ii) have administrative, executive or supervisory experience in a responsible capacity for not less than 5 years in Government, Semi-Government or any big Industrial or Commercial concern;
(iii) be not more than 40 years of age, unless already in the service of the Bombay Municipal Corporation, the age-limit being relaxable in favour of candidates with exceptional qualifications and/or experience.
Provided that when the post is to be filled by promotion candidates must have worked under the Bombay Municipal Corporation for a period of not less than 5 years and held a post not below the rank of an office Superintendent, Assistant Engineer, Assistant Medical Officer or Medical Inspector for a period of not less than one year.”
By a resolution of the B.M.C., it was further laid down that appointments by promotion would be restricted to 50% of the vacancies.
3. In the year 1985, the B.M.C. felt the need to fill up eight posts of Ward Officers, and therefore, had made a request to the third respondent (M.P.S.C.) to take steps for the selection of the candidates to fill up the said posts. The M.P.S.C. issued an advertisement in terms of Ex. A on 14 -10 -1985, inviting applications to fill up eight posts of Ward Officers. All the posts were to be filled up by nomination and the applications were required to be in the prescribed form. The form contained additional information and instructions to candidates as to how to fill up the forms. One instruction – hereinafter to be referred to as “I. No. 7” -was phrased : –
“Where the number of applications from candidates who are eligible to be called for interview is disproportionately large in comparison with the number of advertised posts, the Commission at their discretion, may select candidates for interview by applying any criteria which may be decided by them or by holding a screening test.Candidates not selected for interview will be informed of their non-selection, but the reasons for the non selection will not be communicated.”
A large number of applications was received by the M.P.S.C. in response to Ex. A. These included the applications of petitioners 1, 3 and respondents 4 to 8. The M.P.S.C. called a certain number of persons for the interview and petitioners 1 and 3 were amongst those interviewed. Respondents 4 to 8 were called and attended the interview and were fortunate enough to be selected. The disappointed petitioners Nos. 1 and 3 have joined petitioner No. 2 in impugning the whole process culminating in the selection of fortunate ones.
4. The case of the petitioners is that the Rules envisage the filling up of the posts of Ward Officers two sources i.e. the open market and by promotion. The ratio of the two sources had to be equal as provided by the Rules. This ratio was followed in the appointment of Ward Officers from 1965 till as late as 1973 or thereabouts. In 1973, the M.P.S.C. took exception to the clause in the Rules providing for appointment by promotion. It suggested a revision in the Rules and though this had been pressed by the B.M.C., the Government did not accept the proposal, and therefore, the Rules continue unamended. Despite the refusal of the Government to amend the Rules, there had been no appointment of ward officers by way of promotion since 1973. This departure from the Rules had gravely affected the prospects of aspirants from the Municipal services. Petitioners in common with these servants were eligible to be considered for promotion to the posts of Ward Officers. The position today was that out of 48 posts of Ward Officers as many as 47 were nominees. The beneficiaries of the departure from the Rules viz. respondents 4 to 8 and the others selected, could not be appointed having regard to the contravention of the Rules . Next the criteria evolved by the M.P.S.C. for interviewing applicants was far different from that as set out as the eligibility qualifications in the advertisement as the eligibility qualifications in the advertisement at Ex. A. In the name of evolving a criteria, the M.P.S.C. had no power to deviate from the eligibility qualifications. Thirdly, having laid down a certain procedure, the M.P.S.C. had deviated there from and selected respondents 4 to 8 who did not have the require “administrative, executive or supervisory experience” as laid down in the criteria. For this reason also, the selections were bad. Hence the petition to quash the selections made and to enjoin the B.M.C. to fill in the vacancies of eight Ward Officers in the ratio of 50-50 as between nominees and promotees, having regard to the need to make up the backlog in the vacancies in favour of promotees.
5. The petition is opposed by the respondents originally impleaded as else respondents 5 to 8 who have intervened to protect their position. Shortly stated, the common defence by these respondents is that petitioners are mis-construing the Rules when they say ask that these require the maintenance of any ration, much less 50-50, between nominees and promotees in appointment to the posts of Ward Officers. No such ratio or any other, is laid down by the Rules. In fact, the limitation laid down is that if appointments are to be made by promotion, the promotees shall not exceed 50%. The M.P.S.C. found the provision in regard to the filling up of posts by promotion unworkable. This is because the eligibles were far too disparate to permit the consideration of any particular group as source material for applying a workable norm to select the deserving. For this reasons, since 1973 Ward Officers had been selected by open competition. Municipal employees were not barred from competing for the posts. In fact, if they wanted to compete, the rules provided for relaxation of the age limit. So for as I. No. 7 was concerned, it was something universally accepted by the M.P.S.C., for the selection of candidates wherever the number of person competing was disproportionately large to the vacancies to be filed in. It was a permissible device in selecting best amongst the aspirants. It was not correct to say that there had been any deviation from the criteria laid down. Due regard had been given to the qualifications and experience of all the applicants. After applying rational considerations, a limited number of persons had been called for the interview, and therefrom, the selection of eight persons had been made. These included respondents 4 to 8 and they fulfilled all the requirements of the rules and criteria evolved .Respondents 4 and 6 to 8, additionally took the stand that they were in any case, qualified for the selection and whatever the deficiencies in relation to the selection of the others, that could not vitiate their selection for the posts of Ward Officers.
6. Having regard to the foregoing, the points arising for determination are:
1. Do the Rules stipulate appointment to the posts of Ward Officers in the ratio of 50-50 as between nominees and promotees?
2. (a) Is the post of a Ward Officer a promotional post?
(b) If not, to petitioners have a justiciable grievance ?
3. Whether the use of I. No. 7 vitiated the selection ?
4. Was there a deviation from I. No. 7 and dose this departure vitiate the selection ?
For reasons given below, I answer these as under :-
1. No.
2. (a) Not in the sense canvassed by petitioners.
(b) No; not so,
3. No.
4. Not established.
7. The rules together with the resolution governing the appointments to the posts of Ward Officers have been cited above. The first question that one addresses to himself is whether these provided for any compulsion in the following of a ratio as between the promotees and the nominees in the filling up the posts of Ward Officers, Qualifications make eligible a fairly mature degree of personnel for the post of a Ward Officer. He has to be a graduate, must have administrative, executive or supervisory experience, and that, in a responsible capacity for not less then five years and this in Government, Semi-Government or in a big Industrial or Commercial concern. The maximum age is 40 years, but relaxable for those in the employ of the B.M.C. provided these candidates have exceptional qualifications and/or experience. Then comes the proviso which deals with promotees. The words are that, “if the post is to be filled in by promotion, the aspirant must have worked under the B.M.C. in a post not below the rank of an Office Superintendent. Assistant Engineer, Assistant Medical Officer or Medical Inspector for a period or not less than one year.” The total service put in with the B.M.C. by the would-be-promotee is not less than five years. The ordinary rule of construction is well known. If is that words used in a statue must be given their plain and ordinary meaning and that any interpretation which puts an undue strain upon the words used should be avoided. Now here, the rules do not prescribe any ratio. While they do not exclude promotees, their number is not to exceed 50%. But there is no requirement that the vacancies must be filled in by any particular ratio as between the nominees and the promotees. Laying down an outer limit upon the percentage of promotees, is not the same thing as prescribing that 50% of the vacancies must be filled in by promotion. Reasonably construed, the rules do not prescribe any particular ratio between the promotees and the nominees. All that is required, is that promotees shall in no case exceed 50%. It was urged that the refusal of the Government to accord section to the deletion from the rules of the eligibility of promotees to fill up the posts, indicated an intention on the part of the rule makers that promotees would fill up the posts. Until 1973, no difficulty was experienced in filling up the posts from amongst promotees. Loath as I am to comment upon the principle underlying the qualifications prescribed, I cannot but express my agreement with M.P.S.C. which found that clause of the rule dealing with promotees, as being strange and unworkable. From amongst the promotees the eligibles cannot be below the ranks of four different categories viz. Office Superintendent, Assistant Engineer, Assistant Medical Officer or Medical Inspector. Disparate as these posts are, one can well imagine the disparity in the posts of a rank equal to the one specified and those above them. Seniority is a factor of importance governing promotions. It is impossible to think of any rational way in which the seniority of these different and disparate posts can be worked out. Of course, the rules continue unamended and if a promotee from amongst the eligible categories is appointed as a Ward Officer, the appointment would not be illegal. But to select the most deserving from amongst so many different categories, will be a different task and beset with the risks of potential litigation. The rules as they exist do not exclude municipal employees from competing for the post. In fact, weightage is given to the experience gained by them in the service of the B.M.C. and the maximum age requirement is relaxed in the case of such employees.
8. Turn now to the operation of I. No. 7 in the shortlisting of candidates called for interview. The advertisement at Ex. A reproduced the qualifications laid down by the rules, made a reference to the number of posts reserved and also indicated that more information was to be found in a separate sheet supplied along with the prescribed application from. The petition goes on to refer to the return submitted by the M.P.S.C. in Writ Petition No. 69 of 1986 instituted by one Vinayak Tarachand Devare in response to Ex. A. In that return, the M.P.S.C. admitted that it had evolved a criteria over and above the qualifications provided by the rules for preparing a list of persons fit to be interviewed. The petition quotes the words from the M.P.S.C. return and as they have a bearing upon an important submission of Mr. Sawant I reproduce them below :-
“The Commission laid down the criteria for selection of the candidates for interview after taking into account the general nature of the applications received, and the pay structure in vogue in the Bombay Municipal Corporation, Government of Maharashtra and the Private Sector. The Commission laid down the following criteria for selection of candidates for interview :
(1) Candidates working under the Municipal Corporation of Greater Bombay holding non technical posts should have at least 10 years administrative, executive or supervisory experience in a responsible capacity of which 5 years should be in a post carrying in pay scale the minimum of which is Rs. 920/- or more;
(2) Candidates working under the Municipal Corporation holding technical posts (such as Medical, Engineering) with at least 10 years experience as specified above of which 5 years should be in a post carrying the pay scale of which the minimum is Rs. 1000/- or more;
(3) Candidates in Government service with at least 10 years experience as specified above of which at least 3 years should be in a gazetted post having at least Rs. 600/- as the minimum of the pay scale;
(4) Any other candidates (outside Municipal and Government service) having experience of at least 10 years as specified above of which 3 years should be in a position the minimum of the pay scale of which is Rs. 1000/- or more.”
According to petitioners, in applying the above criteria the M.P.S.C. acted unconstitutionally as these were violative of Article 14 of the Constitution. The classification made was not reasonable. There was no rational basis for differentiating between technical and non-technical posts in the B.M.C. itself. The intrusion of the factory of pay-scales further vitiated the irrational pattern of classification. The different pay-scales with reference to employer was totally meaningless and arbitrary. That I. No. 7 has been followed is not disputed by the respondents. Mr. Sawant submits that applying criteria not set out in the advertisement and the rules, by itself vitiates the selection. In support of this submission, learned Counsel relies upon Jayant Jairam Rohee v. Maharashtra Public Service Commission and another, reported in 1988 Lab.I.C. 429. That is a Division Bench judgement of this Court’s Nagpur Bench in relation to the selection of Civil Judges (Junior Division) and Judicial Magistrates (First Class) in the judicial service of the State of Maharashtra, class I. Amongst the other qualification prescribed for aspirants to the service, was practices as an Advocate for not less than three years as on May 5, 1983. In response to the advertisement issued by the M.P.S.C. a large number of applications were received. The M.P.S.C. applied I. No. 7 and one criteria evolved by it was to exclude from the interview, persons who had a standing of less than five years at the Bar. Three of the aspirants, who were thus excluded because they had a standing of less than five years at the Bar, moved the High Court under Article 226 of the Constitution. They contended that departure from the advertisement qualification was impermissible. The M.P.S.C. contended that having regard to the large number of application received, it was necessary to apply some reasonable method of short listing. The Division Bench which heard the case, unheld the right of the Commission to utilise I. No. 7 in appropriate cases. However it was not able to sustain the assumption behind the criterion of weeding out applicants with a standing of less than five years at the Bar. To quote from the judgement :-
“…the assumption of the Commission in this regard is entirely without any basis. It is not a secret that some competent Advocates who had practised for a period of three years are far better suited that an Advocate who had merely put in practice of five years. In case the object of the Commission is to select the best candidate and as the statutory rules prescribe that the minimum requirement for appointment to the post is practice for a duration of three years, it is not permissible for the Commission to totally eliminate all candidates who had practised between three years and five years at the Bar.”
Therefore, is not as if short-listing by resort to I. No. 7 has not been up held. All that the Division Bench frowned upon, was utilisation of an assumption, which according to it was incorrect. If any authority were necessary to sustain general use of I. No. 7, one such will be found in The State of Haryana v. Subhash Chander Marwaha and others, . Mr. Sawant argues that the assumption in relation of the M.P.S.C.’s mode of Short-listing in the present case, is as baseless as it was in Jayant’s case (supra). It is not possible to accept this submission. The Constitution in ordaining public service commissions was not only creating an independent body to select persons for manning the civil service. In course of time, these commissions have developed a certain expertise in what should be the appropriate mix for various services, offices, and posts. While their prescriptions are not immune from judicial scrutiny, courts will be slow to strike these down. What constitute technical and non-technical posts or why experience in one should be rated higher than the other, are matter, best felt to a body which has considerable experience in selecting administrators at different levels, Jayant Rohee’s case (supra) may perhaps be distinguishable on the ground of the Judges adjudicating, being as good-if not better-appraisers of the length of practice being a measure of ability, as the M.P.S.C. in other words, the criterion evolved could be rated objectively by the Bench deciding the case. In this case, the petitioners have not placed any credible material to fault the classification made by the M.P.S.C. general criticism is not sufficient to establish the charge of irrationally or arbitrariness.
9. Last, there is the contention that the M.P.S.C. having evolved a criteria, did not adhere thereto in the selection of respondents 4 to 8. It is argued that respondent 4 to 8 did not have the requisite “administrative, executive and supervisory” experience spoken of by the criteria mentioned above. This submission is refuted by the respondents who point out that their antecedents are unimpeachable and that in any case, have been so accepted by the M.P.S.C. which acceptance is beyond judicial review. Without subscribing to a rather claim to immunity from judicial review, I find some substance in the contention. Words like ‘administrative, executive and supervisory’ prefacing the expression ‘experience’, may have discernible frontiers in service terminology. But as administration becomes more varied, the complexity grows. The requirement of a modern administration encompass far more than a hidebound hierarchy. What was once a pen-pusher and no more, may today signify a qualified surveyor or investigator. Mr. Kapadia defending of respondent No. 4 relies upon (Dr. Soman’s case), , to support the eligibility of his client to be chosen as a Ward Officer. Jahagirdar, J., in that case approved the following cited before him to explain what administration implied in the modern times :
“..art of administration is the direction, co-ordination and control of many persons to achieve some purpose or objective.”
(Chapter I in “Introduction To the study of Public Administration” by Learned D. White).
“.. management or conduct of an office or employment; the performance of the executive duties of an institution, business, or the like.”
(definition of “administration” in Black’s Law Dictionary, Fifth Edition)
Viewed in the above context, it cannot be said that respondents 4 to 8 lacked the necessary qualification to be considered for the post. In any case, the M.P.S.C. has found them qualified and in the absence of proof of favouritism, it would not be proper to reverse them.
The result of the foregoing discussion is that petition fails. Rule discharged with parties being left to bear their own costs.