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. [ENTITY], age 38 years, occup. unemployed, r/of 25[SECTION], Ramai Nagar, New Bhokardan, Tq. Bhokardan, District Jalna. 02. [ENTITY], age 33 years, occup. unemployed, r/of Millan STD, Opp. Panchayat [ENTITY]i, New Bhokardan, Taluka Bhokardan, District Jalna. Petitioners versus 01. The [ENTITY], through the Chief Secretary, Mantralaya, Mumbai. 02. [ENTITY] behind Old High Court Building, Aurangabad. 03. Member Secretary, Selection Committee and Executive Engineer, PWD (West) Division, Padampura, Aurangabad. 04. [ENTITY], age 35 years, occup. service. 05. [ENTITY], age 33 years, occup. service, both r/o c/o R-2. Respondents Downloaded on - 09/06/2013 17:27:00 2 wp5266.08 WITH WRIT PETITION NO. 4102 OF 2009 01. [ENTITY], (Kavita d/o Shrimant Unvane) age 33 years, occup. unemployed, r/of C/of Dadarao Pakhare, Bhakti Construction, Eknath Nagar, Beed-431122. 02. [ENTITY] 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. [ENTITY] s/o Baburao Gavhane, age 21 years, occup. unemployed, r/of at post Pali, Taluka and Dist. Beed. 04. [ENTITY] s/o Baburoa Gavhane, age 24 years, occup. unemployed, r/of at post Pali, Tq. & Dist.Beed. 05. [ENTITY] s/o Shrimant Unvane, age 24 years, occup. unemployed, r/of c/of Dadarao Pakhare, Bhakti Construction, Eknath Nagar, Beed- 431122. 06. [ENTITY] s/o Ganpatrao Mahanwar, age 37 years, occup. unemployed, r/of at post Tq. and Dist. Beed, (Trade Union Center, Shriram nagar Beed). 07. [ENTITY] s/o Bhikan Giri, age 40 years, occup. unemployed, r/of 4-40-476, Ashtavinayak Colony, Jai Bhavani Nagar, N-4, Cidco, Aurangabad. Downloaded on - 09/06/2013 17:27:00 3 wp5266.08 08. [ENTITY] s/o Dnyanoba Jadhav, age 27 years, occupation: labour, r/of Subash Colony, Nairandi Road, Beed. Petitioners versus 01. The [ENTITY] Through the Secretary, P.W.D. Department, Mantralaya, Mumbai-[SECTION]. 02. [ENTITY]. 03. [ENTITY]. 04. [ENTITY] S/o Shrikrishna Dhawale 05. [ENTITY] S/o Ramchandra Nikalje 06. [ENTITY] S/o [ENTITY]rao Chaudhary 07. [ENTITY] S/o Laxman Chaudhary 08. [ENTITY] S/o Namdeo Nirukhe 09. [ENTITY] S/o Shankarrao Sataw 10. [ENTITY] S/o [ENTITY] 11. [ENTITY] S/o [ENTITY] 12. [ENTITY] S/o [ENTITY] 13. [ENTITY] S/o [ENTITY] 14. [ENTITY] s/o [ENTITY] 15. [ENTITY] S/o [ENTITY] Downloaded on - 09/06/2013 17:27:00 4 wp5266.08 16. [ENTITY] S/o [ENTITY] 17. [ENTITY] S/o [ENTITY] 18. [ENTITY] S/o [ENTITY] 19. [ENTITY] S/o [ENTITY] 20. [ENTITY] S/o [ENTITY] 21. [ENTITY] S/o [ENTITY] 22. [ENTITY] S/o [ENTITY] 23. [ENTITY] S/o [ENTITY] 24. 25. [ENTITY] 26. [ENTITY] 27. [ENTITY] 28. [ENTITY] 29. [ENTITY] 30. [ENTITY] 31. [ENTITY] [SECTION]. [ENTITY] 33. [ENTITY] 34. [ENTITY] S/o [ENTITY] 35. [ENTITY] S/o [ENTITY] 36. [ENTITY] S/o [ENTITY] 37. [ENTITY] S/o [ENTITY] 38. [ENTITY] S/o Nandusing Chavan Downloaded on - 09/06/2013 17:27:00 5 wp5266.08 39. [ENTITY] S/o [ENTITY] 40. [ENTITY] S/o [ENTITY] 41. [ENTITY] S/o [ENTITY] 42. [ENTITY] S/o [ENTITY] 43. [ENTITY] S/o [ENTITY] 44. [ENTITY] S/o [ENTITY] 45. [ENTITY] S/o [ENTITY] 46. [ENTITY] S/o [ENTITY] 47. 48. [ENTITY] S/o [ENTITY] S/o [ENTITY] 49. [ENTITY] S/o [ENTITY] 50. [ENTITY] S/o [ENTITY] 51. [ENTITY] S/o [ENTITY] 52. [ENTITY] S/o [ENTITY] 53. [ENTITY] S/o [ENTITY] 54. [ENTITY] S/o [ENTITY] 55. [ENTITY] S/o [ENTITY] 56. [ENTITY] 57. [ENTITY] 58. [ENTITY] 59. [ENTITY] 60. [ENTITY] 61. [ENTITY] Downloaded on - 09/06/2013 17:27:00 6 wp5266.08 62. [ENTITY] S/o [ENTITY] 63. [ENTITY] S/o [ENTITY] 64. [ENTITY] S/o [ENTITY] 65. [ENTITY] S/o [ENTITY] 66. [ENTITY] S/o [ENTITY] 67. [ENTITY] 68. [ENTITY] S/o [ENTITY] 69. [ENTITY] 70. 71. [ENTITY] S/o [ENTITY] S/o [ENTITY] 72. [ENTITY] S/o [ENTITY] 73. [ENTITY] S/o [ENTITY] 74. [ENTITY] S/o [ENTITY] 75. [ENTITY] 76. [ENTITY] 77. [ENTITY] S/o [ENTITY] 78. [ENTITY] S/o [ENTITY] 79. [ENTITY] S/o [ENTITY] 80. [ENTITY] S/o [ENTITY] 81. [ENTITY] S/o [ENTITY] 82. [ENTITY] S/o [ENTITY] 83. [ENTITY] S/o [ENTITY] 84. [ENTITY] S/o [ENTITY] Downloaded on - 09/06/2013 17:27:00 7 wp5266.08 85. [ENTITY] S/o [ENTITY] 86. [ENTITY] S/o [ENTITY] 87. [ENTITY] S/o [ENTITY] 88. [ENTITY] S/o [ENTITY] 89. [ENTITY] S/o [ENTITY] 90. [ENTITY] S/o [ENTITY] 91. [ENTITY] S/o [ENTITY] 92. [ENTITY] S/o [ENTITY] 93. 94. [ENTITY] S/o [ENTITY] S/o [ENTITY] 95. [ENTITY] S/o [ENTITY] 96. [ENTITY] S/o [ENTITY] 97. [ENTITY] S/o [ENTITY] 98. [ENTITY] S/o [ENTITY] 99. [ENTITY] S/o [ENTITY] 100. [ENTITY] S/o [ENTITY] 101. [ENTITY] S/o [ENTITY] 102. [ENTITY] S/o [ENTITY] 103. [ENTITY] S/o [ENTITY] 104. [ENTITY] S/o [ENTITY] 105. [ENTITY] S/o [ENTITY] 106. [ENTITY] 107. [ENTITY] Downloaded on - 09/06/2013 17:27:00 8 wp5266.08 108. [ENTITY] 109. [ENTITY] 110. [ENTITY] 111. [ENTITY] S/o [ENTITY] 112. [ENTITY] S/o [ENTITY] 113. [ENTITY] 114. [ENTITY] S/o [ENTITY] 115. [ENTITY] S/o [ENTITY] 116. [ENTITY] 117. [ENTITY] 118. [ENTITY] S/o [ENTITY] 119. [ENTITY] S/o [ENTITY] 120. [ENTITY] S/o [ENTITY] 121. [ENTITY] 122. [ENTITY] Age of all 30 to 35 years, Occ. of all Civil Engineering Assistants with Resp. no. 2. Respondents Shri [ENTITY], Advocate for Petitioners in both the petitions. Shri [ENTITY], Govt. Pleader for Resp. Nos. 1 to 3 in both petitions. Shri [ENTITY] Advocate, holding for Shri [ENTITY] Advocate for Respondent No.4 in [CASE NUMBER] and Respondent No. 73 in [CASE NUMBER]. Shri [ENTITY], Adv. for Respondent Nos. 5 in [CASE NUMBER] and Respondent Nos. 30, 56, 58, 65, 71, 77, 84, 87 and 93 in [CASE NUMBER]. Shri [ENTITY], Advocate for Respondent Nos. 5, 52, 53, 74, 85, 95, 106, 111, 119 and 121 in [CASE NUMBER]. Downloaded on - 09/06/2013 17:27:00 9 wp5266.08 Coram : Smt. [ENTITY] & [ENTITY], JJ.
Judgment reserved on: 10th June 2011.
Judgment pronounced on: 04th July 2011.
Judgment (Per: Smt. [ENTITY], 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. [ENTITY], the learned Government Pleader appearing for the State and its officers, who are arraigned as the respondents in the petitions, and Mr. [ENTITY], the learned Counsel appearing for the private respondents, raised a preliminary objection to the maintainability 10 wp5266.08 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 [SECTION] and [SECTION] of the [ACT]. They have relied upon the judgement of the Supreme Court in the case of [PRECEDENT], 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] of the [ACT]. Counsel therefore, submitted that the writ petitions ought to be dismissed in limine.
04. Mr. [ENTITY], 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 11 wp5266.08 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 [ACT] are empowered to adjudicate on the vires of statutory provisions or consider whether there is a breach of any fundamental rights guaranteed under the [ACT], the Supreme Court in the case of [PRECEDENT] (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 12 wp5266.08 this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective 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 the settled 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 are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect 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 the legislation 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 [SECTION] and [SECTION], to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under [SECTION] and [SECTION] of the [ACT], are unconstitutional. [SECTION] of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of [SECTION] and [SECTION] would, to the same extent, be unconstitutional . The jurisdiction conferred upon the High Courts under [SECTION] and upon the Supreme Court under [SECTION] of the [ACT] is a part of the inviolable basic structure of our [ACT]. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by [SECTION] and [SECTION] wp5266.08 the [ACT]. The Tribunals created under [SECTION] and [SECTION] of the [ACT] are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before 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 areas of 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 Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. [SECTION] of the Act is valid and constitutional and is 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 [SECTION] and [SECTION] of the [ACT] is available, there is a self imposed restraint observed by the High Court while exercising this extraordinary discretionary jurisdiction. Mr. [ENTITY] has relied upon
14 wp5266.08 the judgments of the Supreme Court in the cases of (i) [PRECEDENT], (ii) [PRECEDENT], (iii) [PRECEDENT], (iv) [PRECEDENT], and judgment of the Full Bench of the Andhra Pradesh High Court in the case of [PRECEDENT], 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 [PRECEDENT] (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 taxing authorities 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 [PRECEDENT] 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 15 wp5266.08 ground of non exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."
08. Therefore, although "[SECTION] of the [ACT] 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, [PRECEDENT] (supra), one will have to reconcile these principles with the decision of the Apex Court in [PRECEDENT]'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 [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. [ENTITY] 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. [ENTITY]. 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 16 wp5266.08 Tribunal, are unacceptable. Mr. [ENTITY]'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 [PRECEDENT] (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. [ENTITY] 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 17 wp5266.08 posts of Civil Engineering Assistants. The learned Advocate has relied on the judgement of this Court in [ENTITY] Namdeo Kanade and ors.
vs. The [ENTITY] and ors. ([CASE NUMBER] 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 [SECTION] of the [ACT] had been framed, the recruitment to the post for which the Rules have been with framed 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 being appointed on the post of Civil Engineering Assistant. The language of the Recruitment Rules is clear and explicit and 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 have been 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 not necessary 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
18 wp5266.08 to 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 the respondents/selected candidates to the qualification which is prescribed under the Rules. If that be so, then the respondents obviously do not possess the requisite educational 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 contemplates only the qualification which is prescribed under the Rules. There is not even an oblique reference to invite applications from candidates possessing other equivalent qualification. If that be so, the qualification which a candidate must possess for being appointed to the post of Civil Engineering Assistant would be the educational qualification prescribed under the Rules and no other qualification. "
Mr. [ENTITY] 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. [ENTITY], the learned Government Pleader drew our attention to the notification indicating that the recruitment rules have amended, on 7.3.2008. According to him, [SECTION] of the 1998 recruitment rules, has been amended inasmuch as the government is 19 wp5266.08 empowered 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. [ENTITY] 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 [ENTITY] 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. [ENTITY] 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 20 wp5266.08 that 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. [ENTITY], therefore, submitted that no case has been made out by the petitioners for interference by this court in its extra-ordinary jurisdiction.
13. Mr. [ENTITY], 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. [ENTITY], 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.
21 wp5266.08
14. [CASE NUMBER], 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 [SECTION] of the [ACT], prescribed certain qualifications for being appointed as Civil Engineering Assistants. Rule 3(b) (i) and (ii) thereof stipulated as follows:
Appointment to the post of Civil Engineering Assistant Group- C, in the Public Works Department shall be made either:
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 of Government;
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 of Government 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, [SECTION] have been substituted and the eligibility criteria prescribed for being recruited as Civil Engineering Assistants, reads as follows:
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 [CASE NUMBER] 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 [CASE NUMBER] 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.
23 wp5266.08
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 [ENTITY] (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 [PRECEDENT], 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 [PRECEDENT]. 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 24 wp5266.08 candidates 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 Commerce graduates, 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 it was 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 rule provided 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 candidates having 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 candidates possessing 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 [SECTION] of the [ACT] 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 [CASE NUMBER] and who were not called 25 wp5266.08 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 [SECTION] of the [ACT]. 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. [ENTITY] 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 [ENTITY]'s case.
21. In the case of [PRECEDENT], 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;
26 wp5266.08 "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 [PRECEDENT], and the judgment of this Court in Sonali Ramkrishna Bayani vs. [ENTITY], 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. [ENTITY], 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.
27 wp5266.08
24. Clutching at the proverbial last straw, Mr. [ENTITY] 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.
([ENTITY], J.) ([ENTITY], J.) pnd/wp5266.08