Full Text
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.8852 OF 2022
Mayur Arun Tapase, )
Age : 31 years, Occu. : Service, )
Self employed, )
R/o. 147, Malhar Peth, )
Behind Alishan furniture, )
Dhor Galli, Satara-415 002. )… Petitioner
Through Additional Chief Secretary, )
Home Department (Transport and Ports), )
Mantralaya, Mumbai-400 032. )
2. Maharashtra Public Service Commission, )
Through Secretary, Bank of India Bldg. )
3rd
Floor, Fort, Mumbai-400 001. )
3. The Director General of Police, )
Maharashtra State, Police Headquarter, )
Shahid Bhagat Singh Marg,Colaba, )
Mumbai-400 001. )
4. Additional Director General of Police )
(Establishment), )
Shahid Bhagat Singh Marg, Colaba, )
Mumbai-400 001. )... Respondents
Ramanand Moreshwar Kalaskar, )
Age : 34 years, Occu. : Service, )
R/o. Flat No.214, Vitthal Vihar, )
Opp. Shivsrushti Bramhan Gali, )
Saswad, Tal. - Purandar, )
District – Pune-412 301. )… Petitioner
Through Additional Chief Secretary, )
Home Department (Transport and Ports), )
Mantralaya, Mumbai-400 032. )
2. Maharashtra Public Service Commission, )
Through Secretary, Bank of India Bldg. )
3rd
Floor, Fort, Mumbai-400 001. )
3. The Director General of Police, )
Shahid Bhagat Singh Marg,Colaba, )
Mumbai-400 001. )
4. Additional Director General of Police )
(Establishment), )
Shahid Bhagat Singh Marg, Colaba, )
Mumbai-400 001. )... Respondents
Appearances
Dr. Uday Warunjikar, for Petitioner in WP/8852/2022.
Mr. Sanjay Kshirsagar, for Petitioner in WP/10276/2022.
Mr. M. M. Pabale, AGP for State.
JUDGMENT
1. Rule. Rule made returnable forthwith. With the consent of the parties, petitions are taken up for final hearing.
2. By these petitions petitioners challenge the common judgment and order dated 6th June 2022 passed by the Maharashtra Administrative Tribunal (Tribunal) dismissing the Original Application Nos. 173 of 2021 and 174 of 2021 filed by them, seeking appointment on the post of Deputy Superintendent of Police/ Assistant Commissioner of Police (Motor Transport). Communication dated 10th September 2020 and 8th October 2020 denying appointments were challenged before the Tribunal.
3. An advertisement was issued by the Maharashtra Public Service Commission (MPSC) on 16th February 2018 for filling up posts of Deputy Three posts were advertised. The eligibility criteria prescribed in the advertisement was possession of Decree or Diploma in Automobile or Mechanical Engineering and possession of experience of not less than 3 years in the field. The experience criteria also included ability to handle fleet of Government Vehicles and launches and to train the staff as well as knowledge of Motor Vehicle Act and Factories Act. Preference was to be given to candidates possessing Decree in Automobile/ Mechanical Engineering.
4. Petitioners applied in pursuance of the advertisement and participated in the selection process. After qualifying in the written examination held on 30th June 2018, they were invited for interview scheduled to be held on 18th January 2018. MPSC recommended three candidates, including the two petitioners for being appointed vide letter dated 28th September 2018. Communication dated 29th September 2018 was issued to petitioners by MPSC communicating them recommendations of their names for appointment. However, since appointment orders were not being issued, one of the petitioners made representations dated 2nd July 2020 and 14th August 2020.
5. In the meantime, a committee was constituted by the office of Director General of Police to verify fulfillment of eligibility criteria by petitioners. The committee comprised of Additional Director General of Police, Special- Inspector General of Police (Motor Transport) and Deputy Inspector General- (Motor Transport). The committee submitted its report which was forwarded by the office of Director General of Police to the State Government on 17th February 2020. The committee recommended that none of the three selected candidates possessed eligibility criteria. After considering the report, the State Government convened to the Director General of Police by letter dated 10th September 2020 that the three selected candidates do not possess the requisite experience and therefore they were declared ineligible. Accordingly, by communication dated 8th October 2020 all the three selected candidates (including petitioners) were communicated decision of the State Government not to appoint them on the post of Deputy Superintendent of Police/ Assistant Commissioner of Police (Motor Transport).
6. Petitioners approached the Tribunal by filing Original Application NO. 173 of 2021 (Mayur Arun Tapase) and Original Application No.174 of 2022 (Ramanand Moreshwar Kalaskar) challenging letters dated 10th September 2020 and 8th October 2020 and seeking appointment on the post of Deputy By the impugned judgment and order dated 6th June 2022, the Tribunal has proceeded to dismiss the Original Applications.
7. Appearing for petitioners in Writ Petition No.8852 of 2022, Dr. Warunjikar, the learned counsel would submit that the Tribunal erred in dismissing the Original Applications. That the eligibility of petitioners was process. That recommendation of names of petitioners by MPSC for appointment would imply possession of requisite eligibility by them. That the condition of ability to handle Government launches prescribed in the advertisement is absurd as the Government does not own fleet of launches. That petitioners possess necessary experience as well as the ability as reflected in the experience certificate. That the action of respondents is discriminatory as several other candidates possessing similar experience from private organizations have been appointed on the very same posts.
8. Mr. Kshirsagar would appear on behalf of Petitioner in Writ Petition No.10276 of 2022. While adopting the submissions made by Dr. Warunjikar, he would further submit that the liberty granted by MPSC to verify genuineness of certificates has been misused by the respondent-State Government by undertaking an exercise of going into issue of checking their eligibility. That the State Government was expected to merely verify genuineness of educational and experience certificates submitted by the recommended candidates. Once their names were recommended by MPSC, State Government was not expected to undertake an inquiry into possession of eligibility criteria by petitioners. That petitioner in Writ Petition No.10276 of 2022 possessed the requisite experience and ability as prescribed in the advertisement and the recruitment Rules. That the Tribunal has not properly appreciated the controversy raised before it and has dismissed the Original Applications by recording unsustainable findings.
9. Mr. Pabale, the learned Assistant Government Pleader would appear on behalf of State Government and oppose the petitions. He would submit that petitioners participated in the selection without raising any objection about eligibility criteria specified in the advertisement. That said criteria is required to be strictly followed, without any relaxation. That petitioners admittedly do not possess either ability or experience to handle Government launches as their certificates do not reflect experience of handling the same. That therefore the State Government cannot be faulted in expecting strict compliance with the eligibility criteria specified in the advertisement and the recruitment rules. That the Tribunal has not committed any error in upholding the decision of the State Government and that therefore no interference is warranted at the hands of this court in exercise of power of superintendence over the order passed by the Tribunal.
10. Rival contentions of the parties now fall for our consideration.
11. The post of Deputy Superintendent of Police/ Assistant Commissioner of Police (Motor Transport) is to be filled in accordance with recruitment Rules formulated vide Government Resolution dated 28th March 1872. The relevant portion of the recruitment Rules is reproduced thus: “Recruitment Rule for the post of Assistant Commissioner of Police/ Deputy Superintendent of Police, Motor Transport Section Maharashtra State. (A) By nomination of suitable officer from the lower ranks of the Motor Transport section, Maharashtra State: OR (B) By nomination for among candidate who:
(I) Unless already in the service of the government of
(II) Possess a degree of recognised University or diploma of recognised institute in Automobile or Mechanical Engineering.
(III) Have not less than three years practical experience in field; the experience acquired prior to obtaining the academic qualification may also be counted, it is appropriate type.
(IV) Are able to handle a fleet of Government vehicles and launches and to train the staff; and
(V) Have knowledge of the Motor Vehicle Act and the
Factories Act. Provided that preference may be given to candidate possessing a degree or exceptional qualification / or experience.
2. A candidate appointed by nomination shall be probation for two years.
3. A person appointed either by promotion or by nomination shall be required to pass the language examination in Marathi and Hindi according to the prescribed rules.”
12. Perusal of the recruitment Rules would indicate that a candidate is required to possess the Degree or Diploma in Automobile or Mechanical Engineering. There is no dispute about possession of this educational qualification by both petitioners. Recruitment Rules further provide for possession of three years practical experience in the field. Here again, there is no dispute that both the petitioners possess 3 years’ practical experience. The hotbed of controversy is about provisions in Clause (IV) which requires ability to handle the fleet of Government vehicles and launches and to train the staff.
13. The advertisement also prescribed same eligibility criteria as reflected in the Recruitment Rules. Paragraph No.4.[3] and 4.4. of the advertisement reads thus: 4-3 ‘kS{kf.kd vgZrk%& The candidate mustpossess a degree of a recognised University or diploma of a recognised institute in Automobile or Mechanical Engineering; and thereafter, 4-4 vuqHko%& 1- have not less than three years practical experience in field; the experience acquire prior to obtaining the academic qualification may also be counted, if it is of the appropriate type; 2- are able to handle a fleet of Government vehicles and launches and to train staff, and 3- have knowledge of the Motor Vehicles Act and Factories Act. Ikjarqd & Preference may be given to a candidate possessing a degree or equivalent qualification in Automobile or Mechanical Engineering.
14. Thus in the recruitment Rules, there are twin requirements of (i) ‘experience’ of not less than 3 years in the field and (ii) ‘ability’ to handle the fleet of Government vehicles and launches and to train staff. Though the requirement of ‘experience’ and ‘ability’ are specified in the two separate clauses Nos.
(III) and (IV) in the recruitment Rules, MPSC clubbed both the requirements under common heading of ‘experience’ in its advertisement. Even the committee which reexamined eligibility of Petitioners also clubbed ‘ability’ into as a part of ‘experience’. This is the first factor which would indicate that the ‘ability’ to handle fleet of Government vehicle / launches and to train the staff is required to be acquired from ‘experience’.
15. Apart from clubbing of requirement of ‘ability’ under column ‘experience’ by MPSC in the advertisement, we otherwise find the eligibility criteria relating to experience in the recruitment Rules to be vague and ambiguous. The condition of ‘not less than 3 years practical experience in field’’ is very vague. If the condition of experience is to be read in isolation, then candidate possessing clerical experience or experience as an industrial labour could also be considered eligible. Though the words ‘in field’ are used, the same do not take us anywhere. If field experience is to be read in conjunction with the educational qualification, the same would mean experience in organization dealing with automobiles or mechanical engineering. However the exact position on which such experience is expected is vague. As observed, a fitter or mechanic working in automobile garage for 3 years would then qualify if he possesses Diploma. Therefore to achieve greater clarity on the aspect of ‘experience’ one has to go ahead to clause (IV) and read the condition of ‘ability’. This is another reason why the condition of requirement of ‘ability’ will also have to be read in condition with the requirement of ‘experience’. Upon conjunctive reading of requirement of ‘experience’ and ‘ability’ laid down in clauses (III) and (IV) of the recruitment Rules, one can discern that the 3 years’ experience need to encompass handling of fleet of Government vehicles / launches and to train staff. Isolated reading of requirements of ‘experience’ and ‘ability’ would lead to absurdity as indicated above.
16. Furthermore, if the condition of ‘ability’ is to be read in isolation, it would become difficult to comprehend as to how ‘ability’ is to be determined. Whether ‘ability’ is to be decided by conducting a practical test or whether the same is required to be demonstrated by producing a certificate? There are no answers to these questions. Admittedly, no practical test is conducted to determine ‘ability’ of candidates. There is yet another reason why we are of the considered view that the condition related to ‘experience’ and ‘ability’ are required to be read together and not in isolation. The Tribunal however appears to have proceeded on a footing as if the condition of ‘ability’ is required to be independently satisfied.
17. Having held that condition of ‘experience’ and ‘ability’ are required to be read together, we now proceed to examine whether petitioners satisfy the twin conditions. Petitioner in Writ Petition No. 8852 of 2022 has relied upon experience certificate issued by R. M. Motor Garage. The certificate indicates that he functioned as Mechanic and Head Mechanic from 1st September 2014 to 31st December 2017. The nature of duties performed by him are certified as under: Nature of Duties “It is certified that Mr.
MAYUR ARUN TAPASE was working in this Garage/ Workshop. He has full time practical experience in Supervisory capacity of repairs and maintenance for a period from 01/09/2014 to 31/12/2017. It is certified that Mr.
MAYUR ARUN TAPASE has knowledge of the Motor vehicles Act and the Factories Act. He has handled a fleet of vehicles. He has trained the staff. He has experience of purchase activities of spare parts. He has acted as lead person for the work of the other mechanics and done other work as required. He has diagnosed the vehicles and provided estimation for repairs and replacements. It is also certified that Mr.
MAYUR ARUN TAPASE work sincerely, honestly during working period and performs given job at best level.” Thus, the certificate issued to Petitioner-Tapase would indicate that he possesses 3 years’ experience in the organization engaged in repairs and maintenance of vehicles. The certificate indicates that he has knowledge of Motor Vehicles Act and Factories Act and that he has ability to handle fleet of Government vehicles and launches. That he is also able to train staff.
18. So far as Petitioner-Kalaskar is concerned, he relied on certificate of experience issued by Saswad Nagar Parishad which reads thus: Certificate of Experience This is to certify that Shri Kalaskar Ramanand Moreshwar is working as water supply and sanitation supervisor for the water supply and sanitation department in this saswad municipal council for the pay scale of Rs.9300- 34800 and grade pay Rs.4200.
1. During this period his conduct is good and he is dedicated to work assigned to him.
2. He has been observed sincere, honest and hardworking and the best of my knowledge he bears good moral character.
3. His total experience in our institution is as follows.
4. Certified that no Disciplinary / Vigilance action or any other case is pending or contemplated against Shri. Kalaskar Ramanand Moreshwar and his integrity is beyond doubt.
5. No major/minor penalties have been imposed on him during his service.
6. It is also certified that no break(s) is given in his service.
7. The nature of his duties are attached separately. Nature of Duties This is to certify that Mr. Ramanand Moreshwar Kalaskar has performed following duties:
1) Regular Inspection of vehicle of all the departments of Saswad Municipal Council & enlisting any maintenance to be done if needed.
2) preparing Estimate for the necessary maintenance.
3) Sanctioning the proposed Estimated Expenditure from Chief Officer, General Body and other authorities.
4) Completing necessary repair and maintenance work of vehicles by mechanics/technician and supervising the same.
5) Inspecting the completed work whether it is done according to the necessity or not and making the remark for the same.
6) Maintaining register of maintenance for each vehicle and stock register of used part.
7) Carrying out vehicle purchase related work for all the departments of Saswad Municipal Council.
8) Machine Maintenance and purchase related work in Water Supply and Sanitation department.
9) Machine Maintenance and purchase work in solid waste management Department.
10) Other supervisory and administrative work under water supply and sanitation department.
19. The experience certificate issued to Petitioner-Kalaskar thus indicates that he worked as ‘Water Supply and Sanitation Supervisor’ from 2nd January 2015 to 26th February 2019. The exact nature of his duties are also certified by Saswad Nagar Parishad.
20. The Committee constituted by the Director General of Police raised following objections qua petitioners in respect of their experience: v) jkekuan eksjs’oj dGldj;kapsdMs tkfgjkrhr eq|k dz- uewn 4-4 (vuqHko) e/;s uewn dsY;kizek.ks ‘kkldh; ukSdk gkrkG.;kpk vuqHko ukghc) rlsp R;kauh lknj dsysY;k vuqHko izek.ki=ke/;s deZpk&;kauk izf’k{k.k ns.;kckcrpk vuqHko vlY;kps uewn dsys ukghe;qj v#.k rikls;kauh vkj-,e- eksVkj xWjst] t;flaxiwj] dksYgkiwj;kapsdMhy vuqHko izek.ki= lknj dsys vlwu R;kckcr lferhps fujh{k.k [kkyhyizek.ks vkgs%& v) e;qj v#.k rikls;kauh lknj dsysY;k vuqHko izek.ki=kr uewn dsysyh vkj-,eeksVkj xWjst] t;flaxiwj] dksYgkiwj gh vkLFkkiuk [kktxh Lo#ikph vlwu R;kapsdMs tkfgjkrhr eqn~nk dz- 4-4 (vuqHko) e/;s uewn dsY;kizek.ks ‘kkldh; okgu rkQk o ukSdk gkrkG.;kpk vuqHko ukghc) rlsp R;kauh lknj dsysY;k vuqHko izek.ki=ke/;s deZpk&;kauk izf’k{k.k ns.;kckcrpk vuqHko vlY;kps uewn dsys ukgh-
21. Thus, with regard to Petitioner-Tapase, the Committee has observed that the establishment where he worked is private and that he does not possess experience of handling Government fleet of vehicles and launches. We fail to comprehend why experience in private organization cannot be taken into consideration as the Recruitment Rules or advertisement do not specify that the experience must in a Government organization. Clause (III) relating to experience does not specify the exact organization where it must be gained. The word ‘Government’ however appears in clause (IV) relating to ‘ability’. The ability should be to handle fleet of government vehicles. The recruitment Rule is thus ambiguous as to whether such ‘ability’ must be acquired while working in a Government organization or the same can be acquired while handling Government vehicles while working in a private organization. It is not that all Government vehicles are repaired and maintained by Government alone. The certificate of experience issued to Petitioner-Tapase contains specific statement that he has handled Government vehicles. So far as the shortfall relating to ability to handle of launches is concerned, we would deal with that aspect separately as same objection is raised for other Petitioner as well.
22. In case of Petitioner-Kalaskar, the committee has objected to nonpossession of experience of handling Government launches. It is also observed that he does not possess experience to train staff. The experience certificate dated 26th February 2019 issued by Saswad Nagar Parishad specifically certifies that Petitioner-Kalaskar used to perform various nature of duties including repairs and maintenance of vehicles of the Nagar Parishad. One of the duties performed by him included ‘completing necessary repair and maintenance work of vehicles by mechanics/technician and supervising the same’. Thus, performance of supervisory duties over other staff by him was certified by Saswad Nagar Parishad. Here again, the condition of ‘ability to train staff’ appears to be quite ambiguous. The person acquiring experience of handling fleet of vehicles is most likely to acquire ability to impart training of skills acquired by him to other persons. The advertisement or recruitment Rule do not prescribe possession of work experience as a trainer. All it requires is mere ability to train staff. In peculiar facts and circumstances of the case, since experience of trainer is not required, we are of the considered view that performance of supervisory duties over other staff would necessarily imply ability to impart training to them as well.
23. Coming to the aspect of possession of ‘ability to handle Government launches’ we find this condition in the advertisement also to be quite vague and ambiguous. Petitioners have contended that Government does not own sufficient number of launches so as to acquire ability by candidates to handle fleet of government launches. It is also contended by them that an officer deputed to handle only government launches, is unlikely to acquire ability to handle fleet of Government vehicles also. We do not wish to delve deeper in this issue and would leave the same by making an observation that the word ‘or’ would have been ideal in place of ‘and’ in clause (IV).
24. Petitioners have placed on record experience certificates of some of the candidates who have been appointed on the very same post in the past. Experience certificate of one Shri. Tushar Babanrao Deshmukh is placed on record who possessed (i) experience in private organization (ii) certificate did not indicate ability to handle either Government vehicles / launches (iii) it did not certify ability to train staff. Similarly certificates of several other candidates viz. K. M. Nadaf, Nimba Khandu Patil and Pawar Gayatri Vitthal are placed on record, none of which certified ability to handle Government launches or ability to train staff. There is no denial on the part of State Government to the fact that these candidates have been appointed on the post to which petitioners vie for. Though right to equality is a positive concept and cannot be enforced in a negative manner, considering the peculiar facts and circumstances of the case, it is not possible to draw an inference that the appointment of those candidates are dehors the recruitment rules.
25. Petitioner’s eligibility to appear in the selection process was verified by MPSC. After being found qualified, they were permitted to participate in the selection process. They cleared the selection process consisting of written test and interview. Their names were recommended for being appointed for the post of Deputy Superintendent of Police / Assistant Commissioner of Police (Motor Transport). The State Government relied upon contents of paragraph No.3 of MPSC’s letter dated 29th September 2018 which reads thus: 3-;k laca/kkrhy iq<hy i=O;ogkj dkgh vlY;kl ‘kklukP;k mijksDr foHkkxkdMsp @ lnj izkf/kdk&;kadMsp dj.;kr;kok- rFkkfi];sFks Li”V dj.;kr;srs dh] fu;qDrh laca/kkr vko’;d okVysyh pkSd’kh dsY;koj vki.k lnj inkP;k fu;qDrhlkBh lokZFkkZus;ksX; vkgkr vkf.k ekufld o ‘kkjhfjd n`”V~;k pkaxys vlwu;k inkP;k tckcnk&;k @ drZO;s ikj ikMrkuk vkM;sm ‘kdsy v’kk dks.kR;kgh ‘kkjhfjd O;k/kh @ O;axkiklwu eqDr vkgkr v’kh fu;qDrh izkf/kdk&;kaph Lor%ph [kk=h iVY;koj vki.kkyk lnj inkP;k fu;qDrhpk nsdkj fnyk tkbZy- rlsp egkjk”Vª ‘kklukP;k vf/kiR;k[kkyh;s.kk&;k fu;qDR;kaP;k ckcrhr ykxw vl.kk&;k brj vVhaP;kgh v/khu jkgwu gh fu;qDrh dsyh tkbZy-
26. Perusal of above stipulation in MPSC’s letter would indicate that MPSC had expressed inability to verify genuineness of educational and experience certificates submitted by the recommended candidates. It left it to the State Government to verify genuineness of said certificates. This is essentially meant that the State Government was required to satisfy itself about genuineness of the certificates relied upon by the candidates. However, the State Government misread the caveat expressed by the MPSC and embarked upon an inquiry into possession of eligibility criteria by petitioners. We do not wish to lay down an absolute principle of law that the State Government did not possess power or authority to undertake such an inquiry. After all, State Government, being the employer, would possess the necessary power and authority to go into the issue of eligibility even in respect of recommended candidate. The principle of estoppel would not apply. However, in the peculiar facts and circumstances of the present case, we are of the considered view that the State Government ought not to have undertaken exercise of determining eligibility of selected candidates by misreading the caveat expressed by MPSC. Letter dated 18th February 2019 is placed on record by the State Government in support of its contention that inquiry was undertaken on account of complaints received against the selected candidates. Petitioners contend that the complaints are not placed on record. We however do not wish to go further in this issue. The MPSC had left the issue of verification of genuineness of certificates to the State Government and had not expressed any doubt about possession of eligibility criteria by them.
27. In the light of these peculiar facts and circumstances of the case, we are inclined to interfere in the order passed by the Tribunal. The Tribunal has not correctly appreciated the case put up before it and has erroneously proceeded to examine the difference between the concepts of ‘ability’ and ‘experience’.
28. Before parting, we would like to observe that the provisions of the Recruitment Rules relating to the post of Deputy Superintendent of Police/ Assistant Commissioner of Police (Motor Transport) are ambiguous and capable of multiple interpretations. It is on account of such an ambiguity in the recruitment Rules that the committee came to the conclusion that none of the 3 candidates possessed the requisite experience. This has led to a situation where all the three posts have remained unfilled, thereby resulting in wastage of time, energy and machinery of State Government and MPSC. On giving strict interpretation to the Recruitment Rules, the State Government will have to scout for a candidate who has 3 years’ experience of (i) handling fleet of government vehicles AND (ii) handling government launches AND (iii) to train staff. Thus, there needs to be an organization which has fleets of government vehicles and government launches and which also undertakes training activities. If such organizations indeed exist and sufficient candidates are likely to be available for holding competitive selection process, the state government may continue recruitment based on provisions of extant recruitment rules. However, if it opines that availability of candidates strictly conforming to all conditions of the recruitment rules is unlikely (as in the present case), a relook at the provisions of the recruitment rules may be necessary. Furthermore, inclusion of criteria of ’experience’ and ‘ability’ under two separate clauses also makes the recruitment rules ambiguous. It would be for the State Government to consider this aspect.
29. Writ Petitions accordingly succeed. The common judgment and order dated 6th June 2022 passed by the Tribunal in Original Application Nos. 173 of 2021 and 174 of 2021 is set aside. The State Government shall proceed to consider petitioners eligible for appointment on the post of Deputy Superintendent of Police/ Assistant Commissioner of Police (Motor Transport) as recommended by MPSC and process their cases for appointment within a period of 04 weeks from today. Writ Petitions are accordingly allowed. Rule is made absolute in above terms. There shall be no order as to costs.
SANDEEP V. MARNE, J. S. V. GANGAPURWALA, ACJ