1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO.4582 OF 2010 [ENTITY] s/o. [ENTITY], Aged 34 yrs., Occ. Police Patil, r/o. Palaskheda, Tah. Risod,ig Distt. Washim. PETITIONER VERSUS 1. State of Maharashtra, through its Secretary, Department of Home, Mantralaya, Mumbai-32. 2. The Sub-Divisional Magistrate, Washim, Distt. Washim. 3. Arun @ [ENTITY], Aged 35 yrs., Occ. Nil, r/o. Palaskheda, Tahsil Risod, Distt. Washim. RESPONDENTS -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. [ENTITY], Adv. for petitioner. Mr. [ENTITY], Government Pleader for respondent nos. 1 and 2. Mr. [ENTITY], Adv. for respondent no.3. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Downloaded on - 09/06/2013 [SECTION]:33:25 2 CORAM : [ENTITY] and Mrs. [ENTITY], JJ. DATE : 19.10.2010. [ENTITY] (Per [ENTITY], J) :
1. Rule returnable forthwith. Heard finally by the consent of the learned Counsel for the respective parties.
2. By this petition, the petitioner has challenged the order passed by the Maharashtra Administrative Tribunal, Nagpur setting aside his appointment as a Police Patil at the instance of respondent no.3. The petitioner applied for appointment as a Police Patil in pursuance of an advertisement. He claimed that, as per the Government Gazette dt.20.5.2009, a candidate who is a legal heir of a Police Patil who either retires or dies while in service, is entitled to get preference in the matter of appointment to the said post. In the selection process, six marks were reserved for such candidates. Respondent no.3 (herein) was an ordinary person not being a legal heir of a Police Patil. He lodged an objection before appearing in the selection process against grant of six marks to the petitioner on the ground that he is not entitled to such marks since he was not a legal heir of a Police Patil. The petitioner and the respondent no.3 along with one more candidate appeared in the selection process and the petitioner was selected only because he was granted six additional marks by reason of his being a legal heir of a Police Patil.
3. The Respondent no.3 (herein) challenged the appointment of the petitioner before the Maharashtra Administrative Tribunal, Nagpur.
The Maharashtra Administrative Tribunal came to a conclusion that it was not permissible to give preference to the legal heirs of a Police Patil while making appointment to the post of Police Patil and relied on the judgments in the cases of [PRECEDENT] and [PRECEDENT] which lay down that a rule which provides for preference can be operated only where one or more of the candidates are equally positioned, by using the additional qualification as a tilting factor. On facts, the Tribunal observed that the Sub-Divisional Magistrate, Washim
1.(2003) 5 SC Cases 341
2.(2002) 4 SC Cases [SECTION] had granted six additional preferential marks to the petitioner and that was the only reason why the petitioner was selected. In the result, the Tribunal directed the SDM to correct the final marks sheet by deducting six additional marks which were granted to the petitioner and issue an appointment order in favour of the candidate securing highest number of marks. While doing so, the Tribunal rejected the contention of the petitioner that respondent no.3 (herein) was not entitled to challenge his selection since respondent no.3 has participated in the process of selection and that he approached the Tribunal only because he was not selected.
4. Mr.[ENTITY], Adv. for the petitioner reiterated the submission pertaining to alleged ineligibility of respondent no.3 to challenge the appointment of petitioner on the ground that he has participated in the selection process. Learned Counsel for the petitioner relied on the decision of the Supreme Court in the case of [PRECEDENT], and the Division Bench Judgment of this Court in the case of [PRECEDENT]. There is no doubt that the settled position of law is that a candidate who participates in the selection process is not entitled to turn
3. (2002) 2 SCC 712
4. 2003 (5) Mh.L.J. 738 around and challenge the process only because he does not succeed in getting selected. In the case of [ENTITY] (supra), the Supreme Court made the following observations :
" According to Respondent No.5, the amendment of the qualifications for the post of Professor of Marine Science was illegal. It was contended that under [SECTION], it is the Executive Council which has to prescribe the qualifications after considering the recommendations of the Academic Council. According to Respondent 5, the qualifications which were prescribed in the 1995 advertisement and handout issued to the applicants in connection therewith had not been prescribed by the Executive Council nor recommended by the Academic Council. Whether this is so or not, this is not a grievance which could have been raised by Respondent no.5. He knew that there was a change in the eligibility criteria for the post yet he applied for the post and appeared at the interview without protest. He cannot be allowed to now contend that the eligibility criteria were wrongly framed. "
5. A Division Bench of this Court has also made observations to same effect. Thus, it is clear that a candidate who participates in the selection process is barred from challenging the same. However, the rider is that the bar applies only in the case where the candidate has participated in the selection process without protest. It is, therefore, necessary to see whether respondent no.3 had participated in the selection process without protest. Before appearing in the selection process, respondent no.3 had addressed a letter dt.12.4.2010 to the SDM informing him that, according to said respondent no.3, the petitioner was not a legal heir of a Police Patil. Mr. [ENTITY], learned Counsel for the petitioner submitted that the protest was not lodged by respondent no.3 on the ground that such preferential treatment and allotment of six marks to an heir of a Police Patil is not legal, but it was lodged on the ground that the petitioner was not, in fact, an heir of a Police Patil. It is true that the respondent did not raise an objection on the ground of illegality and unconstitutionality of such preference. But, there is no doubt that respondent no.3 had lodged protest and it cannot be said that he had appeared in the selection process without protest.
6. Mr.[ENTITY], Government Pleader for the State relied on the decision of the Supreme Court in the case of [PRECEDENT], where, in the different circumstances, the Supreme Court held that it was sufficient if the party had refused to accept the liability of excise without protest and that
5. (1989) 2 SCC 676 where no particular form was prescribed for protest against the levy, the protest lodged by the petitioner should be treated as a protest. The observations of the Supreme Court are as follows :
" We gave our anxious considerations to the rival submissions. A perusal of the letter dated June 11, 1974 clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised. If this could not be said to be a protest one fails to understand what else it could be. It does not require much time to analyse the contents of the letter. An ordinary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. "
7. We find that an ordinary reading of the objections raised by respondent no.3 show that respondent no.3 had not accepted candidature of the petitioner and his entitlement for the preferential six marks without protest and it cannot be said that the respondent participated without protest. In such matters, we do not consider it appropriate to expect that letters of protest should be drafted with precision. We, thus, see no merit in the submission made on behalf of the petitioner that the respondent shall not be entitled to question the appointment of the petitioner.
8. As regards the merits on the point of appointment, it is clear that preference to a candidate in the matter of appointment to a service under the State constitutes violation of [SECTION] of the [ACT] since it gives preference to a citizen on the ground of his descent and thus, invidiously discriminates against other citizen because he does not have such descent. In the case of [PRECEDENT], the Supreme Court held as follows :
While it may be permissible to appoint a person who is the son of a police officer who dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right to appointment on the children or wards or other relatives of the police officers either in service or retired merely because they happen to be the children or wards or other relatives of such police officers would be contrary to [SECTION] of the [ACT]. Opportunity to get into public service should be extended to all the citizens equally and should not be confined to any extent to the descendants or relatives of a person already in the service of the State or who has retired from the service. In Gazula Dasaratha Rama Rao v. State of A.P. {(1961) 2 SCR 931 : AIR 1961 SC
6. (1987) 1 SCC 631 564} the question relating to the constitutional validity of [SECTION] of the [ACT] came up for consideration before this Court. That section provided that where two or more villages or portions thereof were grouped together or amalgamated so as to form a single new village or where any village was divided into two or more villages all the village officers of the class defined in [SECTION], [SECTION] of that Act in the villages or portions of the villages or village amalgamated or divided as aforesaid would cease to exist and the new offices which were created for the new village or village should be filled up by the Collector by selecting the persons whom he considered best qualified from among the families of the last holders of the offices which had been abolished. This Court held that the said provision which required the Collector to fill up the said new offices by selecting persons from among the families of the last holders of the offices was opposed to [SECTION] of the [ACT]. The court observed in that connection at pages 940-941 and 946-947 thus :
[SECTION] enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of India. It is available to all, irrespective of whether the person claiming it is a citizen or not. [SECTION] prohibits discrimination on some special grounds - religion, race, caste, sex, place of birth or any of them. It is available to citizens only, but is not restricted to any employment or office under the State. [SECTION] [SECTION], guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State; and clause (2) prohibits discrimination on certain grounds in respect of any such employment or appointment. It would thus appear that [SECTION] guarantees the general right of equality; [SECTION] and [SECTION] are instances of the same right in favour of citizens in some special circumstances. [SECTION] is more general than [SECTION], the latter being confined to matters relating to employment or appointment to any office under the State. It is also worthy of note that [SECTION] does not mention 'descent' as one of the prohibited grounds of discrimination, whereas [SECTION] does. We do not see any reason why the full ambit of the fundamental right guaranteed by [SECTION] in the matter of employment or appointment to any office under the State should be cut down by a reference to the provisions in [SECTION] of the [ACT] which relate to Services or to provisions in the earlier [ACT] Acts relating to the same subject
(Pages 940-941).
There can be no doubt that [SECTION] of the Act does embody a principle of discrimination on the ground of descent only. It says that in choosing the persons to fill the new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. This, in our opinion, is discrimination on the ground of descent only and is in contravention of [SECTION] of the [ACT] (pages 946-947) (emphasis in original).
18. We are of opinion that the claim made by the appellants for the relaxation of the Rules in their cases only because they happen to be the wards or children or relatives of the police officers has got to be negatived since their claim is based on 'descent' only, and others will thereby be discriminated against as they do not happen to be the sons of police officers. Any preference shown in the matter of public employment on the grounds of descent only has to be declared as unconstitutional. The appellants have not shown that they were otherwise eligible to be recruited as Constables in the absence of the order of relaxation on which they relied. Hence, they cannot succeed. "
9. It was also contended by Mr.[ENTITY], Adv. for the petitioner that direction of the Tribunal that six marks allotted to the petitioner should be deducted and thereupon, whoever has been found to have secured highest marks should be appointed is illegal. According to the learned Counsel, it was necessary for the Tribunal to scrap the entire selection process and direct that all the candidates should go through the selection process which involves written examination and interview afresh. Mr.[ENTITY], Adv. relied on the judgment of the Supreme Court in the case of [PRECEDENT], where the Supreme Court observed in the circumstances of that case that appropriate and better course would be that, the Service Selection Board, who called the names of all the candidates who were successful in the written examination conducted during certain period, shall interview the candidates and select them in accordance with law. However, such a direction was given by the Supreme Court in the facts and circumstances of that case. In particular, it was found in that case that, in that case, the High Court has held constitution of Selection Committee and selection of appellants as ultra-vires the power of the Government. Thus, one of the reasons why the selection was found to be illegal was the constitution of the Selection Committee itself. It appears that, it is for this reason and other reasons peculiar to that case that the Supreme Court directed that the entire selection process be held afresh. We see no such reason in the present case. No objection has been raised to any other part of the selection process such as the marks awarded in the examination or at the interview. The only question that has been raised is whether the petitioner was entitled to grant of six preferential marks on the ground that he was legal heir of a Police Patil. Since we have come to the conclusion that the petitioner is not entitled to be given six preferential
7. [CASE NUMBER] marks, it would serve the interest of justice if the said six marks are removed and the successful candidate is appointed on the basis of the marks obtained by him without any preferential marks. We, thus, see no reason to interfere with the impugned judgment of the Maharashtra Administrative Tribunal, Nagpur. The Writ Petition is liable to be dismissed. Accordingly, it is dismissed. Rule is discharged.
10. Mr.[ENTITY], Adv. for the petitioners prays for grant of stay to the judgment. The request so made is rejected.
JUDGE JUDGE [ENTITY]