1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO. 2413 OF 2008 Rajkumar Sahebrao Darade - - Petitioner versus The State of Maharashtra and others. - - - - - Respondents Shri D. R. Kale Patil, Advocate for petitioner. Shri S. K. Tambe, Asstt. Govt. Pleader for Respondents Nos.1 and 2. Shri Anoop Patil, Advocate holding for Shri R. L. Kute, Advocate for Respondents Nos.3, 4, 26 and 28. Shri D. R. Irale Patil, Advocate for Respondents Nos.5, 11, 13, 16 and 18. Shri Rajendra Deshmukh, Advocate for Respondents Nos.6,8, 9, 10, 12, 14, 17, 20 to 25, 27 and 30. CORAM : NARESH H. PATIL & N. D. DESHPANDE, JJ. Dated : 8th July 2009 ORAL ORDER [ Per NARESH H. PATIL, J. ] 1. The petitioner challenges the order dated 17-1-2008 passed by the Maharashtra Administrative Tribunal, Aurangabad in Original 2 Application No. 260 of 2006. After considering the scheme and the rules, the Tribunal observed in paragraphs 6 and 7 :- "6. We have given our thoughtful consideration to the eligibility of the applicant as far as the age limit is concerned. As per rule 3 (b)(i) and b(ii) for nominated candidates, the normal age limit is 30 years of age and it can be relaxed up to 35 years for the candidates mentioned above under the proviso Rule 3(2)(b). Admittedly, the applicant has not passed the one year course examination during the period 1980-81 and 1986-87. He was studying for three years programme during this period but that does not mean that he passed the one year's course. Also, the validity of the selection process cannot be challenged by him unless he is eligible to be selected as per the Recruitment Rules. We, therefore, do not intend to go into the selection process but we restrict our judgment on the preliminary issue of his eligibility as per the age limit 3 prescribed under the Rules. 7. In view of the position stated above we hold that the applicant is not eligible to participate in the selection process and get selected for the post he had applied for, because of age bar. He appears to have received the interview call by mistake on the part of the respondents. That cannot take away the fact that he does not hold basic eligibility. As a result, this original application is dismissed with no order as to costs." 2. The affidavit in reply is filed by the State Government. Paragraphs 3 and 4 of the said affidavit in reply are reproduced below : "3. I say and submit that, the Petitioner belongs to VJNT (D) category, during the course of interview the Petitioner has secured total 43 marks, where as if he is to be considered from the open category, the last candidates selected by committee from open category has 4 secured 68 marks and if the Petitioner is to be considered from VJNT (D) category, the last candidate from the said category has secured 56.5 marks. I say that, the Petitioner has not secured required marks during the course of interview, therefore, the Petitioner could not be selected for the post of Civil Engineer Assistant. So also when Petitioner has appeared in the selection process, he cannot assail the selection process, I say that the Petitioner was considered but did not found up to the mark and therefore, Petitioner is not selected for the of Civil Engineer Assistant. I say that, one Mr. Kathar K. S., is last candidate admitted from the open category has secured 68 marks. Though Mr. Kathar K. S., belongs to SC category but he has been considered/admitted from the open category. I say that, the Petitioner is not up to the mark, therefore, he has not been selected by the committee. 4. I say and submit that, the 5 Petitioner has annexed his marks sheet of 3rd year examination on page 17 of the petition, which shows that, Petitioner has passed higher degree i. e. 3 years Diploma and not one year course as required as per Rules of 1998 for the post of Civil Engineer Assistant, on this count also the Petitioner is not eligible for appointment on the post of Civil Engineer Assistant." 3. The State admitted that the selection process was conducted under the Rules dated 18-6-1998 namely; Civil Engineering Assistant Group - C, in the Public Works Department (Recruitment) Rules, 1998. The 28 candidates were appointed by nomination accordingly. 4. Two writ petitions bearing writ petition No. 7195/2006 and writ petition No. 7359/2006 came to be filed. In both the writ petitions, there were fifteen writ petitioners. They had also challenged the order passed by the Tribunal in their matters. The Division Bench of this Court 6 observed in paragraphs 22 and 23 of the judgment as under : "22. The selected candidates came to be appointed as Civil Engineering Assistants by virtue of the appointment orders dated 13.02.2006. More than three years have passed since their appointments and we are quite conscious of the fact that on account of passage of time the respondents have been rendered ineligible to apply for other posts pursuant to the advertisements, if issued. If their appointments are set aside, the respondents stand to lose their jobs with their future being jeopardized for no fault of theirs. The appointments have been made by the respondents- authorities in flagrant disregard of the Recruitment Rules, which cannot be countenanced. However, while balancing the hardships faced by the respondents and the injustice done to the 7 petitioners, we are of the considered view that since 17 posts are available in the cadre of Civil Engineering Assistants, the respondents need to be directed to appoint the petitioners who are 15 in number, to the said post with effect from 13.02.2006, without disturbing the appointment of the respondents, subject to the eligibility as prescribed in the advertisement dated 25.05.2005. 23. Accordingly, Writ Petition No. 7359 of 2006 is allowed and Writ Petition No. 7195 of 2006 is partly allowed and is dismissed with regard to prayer (F). The impugned orders in both the petitions are hereby quashed and set aside. The petitioners shall be appointed in the 17 vacant posts of Civil Engineering Assistant with effect from 13.02.2006, within a period of three months from today. The petitioners, however, shall not be entitled for any arrears of 8 salary. The petitioners shall, however, be placed higher in the seniority list than the selected candidates and their service from 13.02.2006 till today shall be reckoned for the purpose of pension and seniority only. We further direct the respondents to make appointments in future to the post of Civil Engineering Assistants strictly in accordance with the Recruitment Rules in force at the time of appointments." 5. The petitioner claims identical relief in this petition. Learned A. G. P. Shri Tambe submits that there is no vacancy now. The petitioner was not qualified and did not secure sufficient number of marks for getting the same relief, as was granted in the above writ petitions decided by the Division Bench of this Court on 24.03.2009. Learned A. G. P. submits that now separate recruitment Rules are framed under the Government Resolution dated 19.10.2007, under which the candidates will have 9 to appear for written examination and oral test. Learned A. G. P. has placed on record copy of the said Government Resolution dated 19.10.2007 for recruitment of Class III posts as petitioners were claiming recruitment to Class III posts. Recruitment would be in accordance with the guide lines set out in the Government Resolution, according to the learned A. G. P. We are informed by the learned A. G. P. that around 140 candidates appeared for the examination conducted in the year 2005-2006, out of which, eight candidates were appointed by the State. Under the orders passed by this Court in the above writ petitions, fifteen candidates came to be appointed and therefore, it is not the case that petitioner alone is left out. Apart from that, according to learned A. G. P., the petitioner lacks basic qualification and the eligibility criteria which were set down when earlier candidates were selected in the year 2005-2006. We, therefore, find that the recruitments exercise completed in the year 10 2005-2006 and considered by the Division Bench of this Court in the above referred two writ petitions need not now be reopened by this Court. Considering these aspects of the matter, we find that the petition is required to be dismissed. It is accordingly dismissed. ( N.D.DESHPANDE, J.) ( NARESH H. PATIL, J. ) pnk/wp241308