Dr. Dhananjay Vithal Hange v. The State Of Maharashtra Through Secretary And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9117 OF 2016 Dr. Dhananjay Vithal Hange Age 44 years, residing at C/o Nalasopara Ayurvedic Medical College, Mumbai ......Petitioner

Versus

1 The State of Maharashtra Through the Secretary, Medical Education and Drugs Department, Mantralaya, Mumbai 400 032.

2 Maharashtra Public Service Commission through its Secretary Having office at Bank of India Building, M.G.Road, Fort, Mumbai 3 Dr. Santosh Gulabrao Chavan Age 37 years, Occupation Service Residing at Manas Sarovar Complex Building No.13-B, Room No.302, Sector 34, Kamothe, Navi Mumbai-410 209 .......Respondents WITH WRIT PETITION NO.467 OF 2017 Maharashtra Public Service Commission, Mumbai (Through the Secretary) Having office at 5 , 7 1⁄2 th & 8th Floor, Cooperage Telephone Nigam Building, M.K.Road, Cooperage, Mumbai-400 021.

...Petitioner.

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Versus

1 Shri Dr. Santosh Gulabrao Chavhan, Age: 38 years, Occupation: Service, Residing at Manas Sarovar Complex No.13-B, Room No.302, Sector 34, Kamothe, Navi Mumbai 410 209.

2 The State of Maharashtra Through the Secretary, Department of Medical Education and Drugs, Mantralaya, Mumbai-400 032.

3 Dr. Dhananjay Vitthal Hange, Matoshree Hospital, Ahead Satara Police Station, Behind Madhumangal Karyalaya, Aurangabad ....Respondents.

Mr. M.D.Lonkar i/by Ms. Leena Patil , Advocates for Petitioner in WP No.9117/2016.

Mr. N.C.Walimbe , APP for Respondent No.1-State. Mr. S.R.Ganbavale, Advocate for Petitioner in WP No.467/2017.

Mr. C.T.Chandratre, Advocate for R.No.3 in WP No.9117/2016.

CORAM :

CORAM : SMT. V.K. TAHILRAMANI, & SMT. V.K. TAHILRAMANI, & SANDEEP K. SHINDE, JJ.

SANDEEP K. SHINDE, JJ.

RESERVED ON :

RESERVED ON : July 24, 2017.

July 24, 2017.

PRONOUNCED ON : August 4,2017.

PRONOUNCED ON : August 4,2017.

JUDGMENT: [Per Shri Sandeep K. Shinde, J.] JUDGMENT: [Per Shri Sandeep K. Shinde, J.] Both these petitions are preferred against the order Both these petitions are preferred against the order dated 21.7.2016 passed by the Maharashtra Administrative dated 21.7.2016 passed by the Maharashtra Administrative

* 3/10 * Tribunal (In short '

Tribunal (In short 'MAT MAT') in the Original Application No.885 ') in the Original Application No.885 of 2015, which was preferred by the respondent no.3 in Writ of 2015, which was preferred by the respondent no.3 in Writ Petition No.9117 of 2016 as well as in Writ Petition No.467 of Petition No.9117 of 2016 as well as in Writ Petition No.467 of 2017 (Hereinafter referred to as '

2017 (Hereinafter referred to as 'Original Applicant Original Applicant').

').

Both the petitions are taken up for final hearing together and disposed of by this common judgment. The Maharashtra Public Service Commission (In short The Maharashtra Public Service Commission (In short 'MPSC MPSC') invited applications to fill in two posts of the Assistant ') invited applications to fill in two posts of the Assistant Professor, Nidan Panchak on the establishment of the Government Professor, Nidan Panchak on the establishment of the Government Ayurved Colleges. These posts are pertaining to the Maharashtra Ayurved Colleges. These posts are pertaining to the Maharashtra Ayurvedic Services, Group-B. Out of two posts, one post was Ayurvedic Services, Group-B. Out of two posts, one post was reserved for NT(B) and another for non-reserved class, i.e, open reserved for NT(B) and another for non-reserved class, i.e, open category. The original applicant, who is respondent no.3 herein category. The original applicant, who is respondent no.3 herein (hereinafter referred to as the '

(hereinafter referred to as the 'Original Applicant Original Applicant') belongs to DT ') belongs to DT (A) and submitted the application from that category. The original (A) and submitted the application from that category. The original applicant would claim that as per Section 4(3) of the Maharashtra applicant would claim that as per Section 4(3) of the Maharashtra State Public Services (Reservation for SC, ST, DT(VJ), NT, SBC and State Public Services (Reservation for SC, ST, DT(VJ), NT, SBC and OBC Classes) Act, 2001, the posts reserved for DT (A) and NT OBC Classes) Act, 2001, the posts reserved for DT (A) and NT (B,C,D) are inter transferable/changeable. Since fifty-seven (B,C,D) are inter transferable/changeable. Since fifty-seven applications were received by the MPSC, short-list of 5 candidates applications were received by the MPSC, short-list of 5 candidates was drawn. The original applicant and the petitioner herein were was drawn. The original applicant and the petitioner herein were

* 4/10 * amongst the candidates short-listed. The original applicant had amongst the candidates short-listed. The original applicant had secured highest marks amongst the short-listed candidates . He had secured highest marks amongst the short-listed candidates . He had secured 60 marks and the petitioner herein (Original Respondent secured 60 marks and the petitioner herein (Original Respondent No.3) had secured 57 marks. The MPSC did not recommend the No.3) had secured 57 marks. The MPSC did not recommend the original applicant for the subject post; however, name of the original applicant for the subject post; however, name of the original respondent no.3, i.e., the petitioner herein was original respondent no.3, i.e., the petitioner herein was recommended. It was the case of the original applicant that he has recommended.

It was the case of the original applicant that he has secured more marks than the petitioner herein and the MPSC ought secured more marks than the petitioner herein and the MPSC ought to have recommended his name. In the circumstances, he had to have recommended his name. In the circumstances, he had challenged the selection process and particularly, letter of challenged the selection process and particularly, letter of recommendation dated 17.10.2015 whereby petitioner's name was recommendation dated 17.10.2015 whereby petitioner's name was recommended for the subject post from open - category. recommended for the subject post from open - category.

The Tribunal after hearing the original applicant and The Tribunal after hearing the original applicant and the contesting respondents accepted the claim of the original the contesting respondents accepted the claim of the original applicant and by judgment and order dated 21.7.2016 quashed and applicant and by judgment and order dated 21.7.2016 quashed and set aside the recommendation dated 17.10.2015 which was in set aside the recommendation dated 17.10.2015 which was in favour of the petitioner herein and further directed the MPSC to favour of the petitioner herein and further directed the MPSC to recommend the name of the original applicant for the post in recommend the name of the original applicant for the post in question.

question.

That aggrieved by the judgment and order of the MAT That aggrieved by the judgment and order of the MAT

* 5/10 * as aforesaid, the MPSC as well as the original respondent no.3 as aforesaid, the MPSC as well as the original respondent no.3 before the MAT have preferred these petitions. before the MAT have preferred these petitions. Heard learned counsel appearing for the respective Heard learned counsel appearing for the respective parties.

parties.

Admittedly, out of two posts, one was reserved for Admittedly, out of two posts, one was reserved for NT(B) and another was for open category. The petitioner herein NT(B) and another was for open category. The petitioner herein belongs to NT(D) category and the original applicant belongs to belongs to NT(D) category and the original applicant belongs to DT(A) category. In the advertisement, it was provided that if DT(A) category. In the advertisement, it was provided that if suitable candidates in NT (B) category were not available then by suitable candidates in NT (B) category were not available then by interchangeability, the candidates from VJ(A), NT(C) and NT(D) interchangeability, the candidates from VJ(A), NT(C) and NT(D) could be considered.

could be considered.

The original applicant after passing his BAMS in 2000 The original applicant after passing his BAMS in 2000 did his post graduation (M.D. Nidan Panchak) in the year 2005. He did his post graduation (M.D. Nidan Panchak) in the year 2005. He worked as 'Assistant Professor' in Ayurvedic College at Sangamner, worked as 'Assistant Professor' in Ayurvedic College at Sangamner, Navi Mumbai and as such, he was answering required qualification Navi Mumbai and as such, he was answering required qualification in terms of advertisement for the subject post. His total experience in terms of advertisement for the subject post. His total experience was eight years.

was eight years.

It may also be stated that the petitioner herein belongs It may also be stated that the petitioner herein belongs to 'Vanjari' caste, who after passing 'BAMS' Degree in the year to 'Vanjari' caste, who after passing 'BAMS' Degree in the year 1999, completed his post graduation in Nidanpanchak in the year 1999, completed his post graduation in Nidanpanchak in the year

* 6/10 * 2003 and joined services as 'Assistant Professor' at Chhatrapati 2003 and joined services as 'Assistant Professor' at Chhatrapati Shahu Maharaj Shikshan Sanstha's Ayurved Mahavidyalaya, Shahu Maharaj Shikshan Sanstha's Ayurved Mahavidyalaya, Aurangabad in June, 2003. As on the date of advertisement, he was Aurangabad in June, 2003. As on the date of advertisement, he was working as 'Associate Professor' at N.K.Dubey Charitable Trust's working as 'Associate Professor' at N.K.Dubey Charitable Trust's Nalasopara Ayurved Medical College, Mumbai. His total experience Nalasopara Ayurved Medical College, Mumbai. His total experience was 10 years and 10 months.

was 10 years and 10 months.

That so far as the experience is concerned, That so far as the experience is concerned, advertisement would prescribe experience of 'not less than three advertisement would prescribe experience of 'not less than three years'. Neither the petitioner nor the original applicant was selected years'. Neither the petitioner nor the original applicant was selected from reserved category.

from reserved category.

That since large number of eligible candidates were That since large number of eligible candidates were available for the open category posts, the MPSC had short-listed 5 available for the open category posts, the MPSC had short-listed 5 candidates including the petitioner and the original applicant for candidates including the petitioner and the original applicant for interview. The performance details of those five candidates are as interview. The performance details of those five candidates are as under:

under:

Sr.

No.

Name Category Category for which called for interview Recommendation Marks scored in of the candidate interview CHAVAN SANTOSH GULABRAO DT(A) NT(B) No Post Available KALE SANDEEP DHANAJI NT(B) NT(B) NT(B)-1 HANGE DHANANJAY VITHAL NT(D) Open/ NT(B) Open-1

* 7/10 * LAHOTI VIJAYALAXMI Open Open No Post available KHANDARE SUNIL RAMCHANDRA Open Open No post available Short-listed criteria prescribes the experience of ' Short-listed criteria prescribes the experience of 'not not less than 10 years'

less than 10 years'. Admittedly, the experience of original . Admittedly, the experience of original applicant falls short of short-listed criteria though he had secured applicant falls short of short-listed criteria though he had secured 60 marks and topped merit list. That on the other hand, the 60 marks and topped merit list. That on the other hand, the petitioner herein though had secured 57 marks; his total petitioner herein though had secured 57 marks; his total experience was 10 years and 10 months on the date of experience was 10 years and 10 months on the date of advertisement which fulfills and meets the short-listing criteria advertisement which fulfills and meets the short-listing criteria prescribed by the MPSC. It is for this reason, the case of the original prescribed by the MPSC.

It is for this reason, the case of the original applicant was not considered from the open category though he had applicant was not considered from the open category though he had secured more marks than the petitioner herein. secured more marks than the petitioner herein. The question, therefore, falls for consideration as to The question, therefore, falls for consideration as to whether the Tribunal was justified in issuing the directions to the whether the Tribunal was justified in issuing the directions to the MPSC to recommend the name of the original applicant to the MPSC to recommend the name of the original applicant to the subject post though he was not meeting with the short-listing subject post though he was not meeting with the short-listing criteria of experience.

criteria of experience.

The learned counsel for the petitioner would contend The learned counsel for the petitioner would contend that one post was reserved for 'NT(B) where suitable candidate was that one post was reserved for 'NT(B) where suitable candidate was available and accordingly, Dr. Sandeep Kale came to be appointed. available and accordingly, Dr. Sandeep Kale came to be appointed. The learned counsel would further submit that once candidate The learned counsel would further submit that once candidate

* 8/10 * applies for given post from a particular category, which is NT-B, applies for given post from a particular category, which is NT-B, herein and even if such candidate is competing amongst candidates herein and even if such candidate is competing amongst candidates from the open category, a short-listed criteria adopted/prescribed from the open category, a short-listed criteria adopted/prescribed for the post from the open category cannot be applied to such for the post from the open category cannot be applied to such candidate and he would be governed by criteria applicable to candidate and he would be governed by criteria applicable to candidates from reserved category. The learned counsel would candidates from reserved category. The learned counsel would submit that the original applicant belongs to DT(A) category.

One submit that the original applicant belongs to DT(A) category. One post was reserved for candidate belonging to NT(B). The original post was reserved for candidate belonging to NT(B). The original applicant was not appointed on the reserved post since suitable applicant was not appointed on the reserved post since suitable candidate was available and, therefore, the MPSC ought to have candidate was available and, therefore, the MPSC ought to have selected the original applicant for a post from the open category selected the original applicant for a post from the open category even though his experience was falling short of 10 years. even though his experience was falling short of 10 years. We have considered the submissions. Perused the We have considered the submissions. Perused the judgment and order passed by the Tribunal.

Perused the petition judgment and order passed by the Tribunal. Perused the petition filed by the MPSC and the pleadings of the respective parties. We filed by the MPSC and the pleadings of the respective parties. We hold in this case, the MPSC, since had received more applications hold in this case, the MPSC, since had received more applications from eligible candidates for one post from the open category was from eligible candidates for one post from the open category was justified in applying short-listing criteria of experience of ' justified in applying short-listing criteria of experience of 'not less not less than 10 years than 10 years'. The original applicant though belongs to DT(A) '.

The original applicant though belongs to DT(A) category, was not eligible to claim a post from open category merely category, was not eligible to claim a post from open category merely because he had secured highest marks. That once a candidate from because he had secured highest marks.

* 9/10 * reserved category competes for a post from open category, he reserved category competes for a post from open category, he cannot assert privileges attached to his caste and claim he would be cannot assert privileges attached to his caste and claim he would be governed by experience as prescribed in advertisement. This claim governed by experience as prescribed in advertisement. This claim of original applicant is illogical and sounds absurd. That once of original applicant is illogical and sounds absurd.

That once candidate irrespective of category and caste competes and lays candidate irrespective of category and caste competes and lays claim from open category, he has to fulfill all required criteria claim from open category, he has to fulfill all required criteria either short-listed or otherwise, to qualify himself for the said post. either short-listed or otherwise, to qualify himself for the said post. In the case in hand, the original applicant was not In the case in hand, the original applicant was not possessing required experience. On the other hand, the petitioner possessing required experience. On the other hand, the petitioner herein had secured 57 marks and was possessing required herein had secured 57 marks and was possessing required experience as short-listed by the MPSC.

In the circumstances, the experience as short-listed by the MPSC. In the circumstances, the communication dated 17.10.2015 issued by the MPSC communication dated 17.10.2015 issued by the MPSC recommending the name of the petitioner for appointment cannot recommending the name of the petitioner for appointment cannot be faulted with. We do not find any reason to accept the contention be faulted with. We do not find any reason to accept the contention of the original applicant as canvassed. That in the fact situation and of the original applicant as canvassed.

That in the fact situation and in the circumstances, finding recorded by the MAT that the shortin the circumstances, finding recorded by the MAT that the shortlisting criteria was quite unnecessary and without there being any listing criteria was quite unnecessary and without there being any occasion for it subordinates merit to the lack of it and is occasion for it subordinates merit to the lack of it and is unreasonable is not correct and the same is, accordingly, set aside. unreasonable is not correct and the same is, accordingly, set aside. That even otherwise the original applicant had challenged the That even otherwise the original applicant had challenged the communication dated 17.10.2015, i.e., recommendation by the communication dated 17.10.2015, i.e., recommendation by the MPSC in favour of the petitioner herein.

The MAT, however, held MPSC in favour of the petitioner herein.

* 10/10 * finding that the short-listing criteria was invoked for no reason and finding that the short-listing criteria was invoked for no reason and it was unreasonable. We have perused the original application of the it was unreasonable. We have perused the original application of the respondent no.3 herein where he had not challenged the shortrespondent no.3 herein where he had not challenged the shortlisting criteria adopted by the MPSC for the subject post. More so, listing criteria adopted by the MPSC for the subject post. More so, we find that the MAT has not recorded any reason as to why and we find that the MAT has not recorded any reason as to why and how short-listing criteria subordinates merit and was unreasonable. how short-listing criteria subordinates merit and was unreasonable.

That in the circumstances, we are inclined to set aside the judgment That in the circumstances, we are inclined to set aside the judgment and order dated 21.7.2016 passed by the MAT in the Original and order dated 21.7.2016 passed by the MAT in the Original Application No.885 of 2015. Resultantly, the petitioner succeeds. Application No.885 of 2015. Resultantly, the petitioner succeeds. We uphold the communication of the MPSC dated 17.10.2015 interWe uphold the communication of the MPSC dated 17.10.2015 interalia recommending the name of the petitioner for his appointment alia recommending the name of the petitioner for his appointment to the subject post as a valid recommendation. The petitions are to the subject post as a valid recommendation. The petitions are allowed in terms of prayer clause (a).

allowed in terms of prayer clause (a).

(SANDEEP K. SHINDE, J) (SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J) (SMT. V.K. TAHILRAMANI, J)