1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.3644 OF 2009 Shankar s/o Dnyanoba Thombre and another .. Petitioners Versus The State of Maharashtra & Ors. .. Respondents Shri N.N.Chitlange, Advocate for petitioners Shri V.H. Dighe, AGP for respondents CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 1st September 2009 PER COURT : 1. This is a petition filed under Article 226 of the Constitution of India by which the petitioners pray for quashing and setting aside the eligibility criteria prescribed in the advertisement dated 13.5.2008 for the post of Instructor Electrician Pre S.S.C. which was prescribed on the basis of the draft notification. The petitioners also pray for declaration that the petitioners are eligible for the post of Instructor Electrician Pre S.S.C. as per the recruitment rules existing then. The petitioners also pray to direct the respondents to consider the claim of the petitioners for the post of Instructor Electrician Pre S.S.C. and to appoint the petitioners if found to be meritorious. 2 2. The present petition is an abuse of the process of Court. Upon issuance of the advertisement dated 13.5.2008, the petitioners had filed application before the Aurangabad Bench of the Maharashtra Administrative Tribunal apprehending that they would be considered by the respondents on the ground of experience and age as was specified in the said advertisement. The petitioners had not challenged the issuance of the advertisement, particularly that the eligibility criteria which was prescribed in the said advertisement was based on the draft rules and was not based on the rules existing then. Be that as it may, the original application filed by the present petitioners viz. Original Application No.353 of 2008 came to be dismissed. The petitioners being aggrieved by the orders passed by the Aurangabad Bench of the Maharashtra Administrative Tribunal, filed Writ Petition No.3936 of 2008 in this Court. The Division Bench of this Court by an interim order permitted the petitioners to appear for the written examination and by orders passed in Civil Application No.10218 of 2008 the petitioners were permitted to appear for the practical examination. It appears that the Division Bench ultimately dismissed the said petition and in the dismissed petition, a civil application came to be filed by the petitioners viz.Civil Application No.10218 of 2008 in which the petitioners had prayed for declaration of the result of the oral examination. However, the said application came to be dismissed 3 on the ground that a substantive petition after the dismissal of the writ petition would be required to be filed as no grievance could be entertained on the basis of a civil application. The petitioners accordingly filed writ petition No.687 of 2009 urging the Court that the result of their oral examination be declared. The Division Bench by its order dated 28.4.2009 dismissed the said writ petition. The Division Bench while dismissing the said writ petition has reproduced the observations made by the earlier Division Bench by which writ petition No.3936 of 2008 came to be dismissed. We may usefully reproduce those observations here which read as under : “ In so far as petitioner no.4 is concerned, the requirement is of a certificate of IT Wireman. The petitioner no.4 holds a certificate of IT Electrician. The petitioner no.4 would, therefore, be not eligible. In so far as petitioner no.6 is concerned, his only experience is on clock hour basis. The petitioner no.6 did not challenge the advertisement before the MAT on the ground of exclusive of clock hour experience and the same being arbitrary or violative of Article 14. The learned counsel sought to place reliance on the judgment of the Supreme Court in Ramkrishna Kamat versus State of Karnataka (AIR 2003 4 SC 1530). After perusal of the judgment, we do not find as to whether there was any provision whereby there was exclusion of service rendered on clock hour basis or like basis. In the absence of challenge to that condition, it will not be possible for us to consider the case of petitioner no.6.” At para 4 of the of the order of the Division Bench of this Court rendered in Writ Petition No.687 of 2009, the Division Bench came to the conclusion that the petitioners were held to be ineligible and, therefore, there was no question of granting any relief of declaration of their results. The Court also recorded a finding at paragraph 5 which we may reproduce as under : “In fact, the fact that petitioners applied for permission to appear for practical, interview inspite of declaration regarding their ineligibility by itself is sufficient to deny any assistance of this Court to the petitioners. In any case since petitioners are ineligible for the post, it is not necessary to declare their result, much less to declare them successful, and appoint them on the post.” The aforesaid judgment rendered by the Division Bench of this Court in Writ Petition No.687 of 2009 and the Judgment 5 rendered in Writ Petition No.3936 of 2008 holding the petitioners to be ineligible has not been challenged by the petitioners in the Supreme Court. 3. The petitioners by this petition, therefore, challenge the advertisement in prescribing eligibility criteria in respect of a post to which the petitioners have been held to be ineligible by the judgments of this Court. A candidate who is ineligible cannot file a petition questioning the issuance of the said advertisement. The petitioners have been held to be ineligible for the post by the Judgment of the Division Bench of this Court which judgment has attained finality as the findings therein had not been questioned. Even the Division Bench of this Court while considering the request of the petitioners that declaration of their result in Writ Petition No.687 of 2009 has also came to the conclusion as the petitioners held to be ineligible, no relief of declaration of result of the petitioners could be granted. In the Judgment in Writ Petition No.687 of 2009, the Division Bench at paragraph 6 has observed thus : “6. Adv. Mrs.Ghatge tried to argue that the eligibility criteria as in the draft rule is used by the Department not in the old rule. The petitioners ought to have relied upon the advertisement, raised these contentions when 6 this Court held them ineligible and these contentions can not be heard for the first time in this writ petition.” Upon perusal of the observations made by the Division Bench at paragraph 6 in the order dated 28.4.2009 in Writ Petition No.687 of 2009, it is apparent to us that a submission had been advanced before the Division Bench that the advertisement was bad as it has prescribed eligibility criteria on the basis of the draft rules. The Division Bench in no uncertain terms declined to examine the said challenge on the ground that the petitioners ought to have raised this challenge in the earlier round of litigation before this Court. 4. In the light of that this challenge no longer survives as the challenge stand concluded, we are inclined to dismiss this petition. Accordingly, this writ petition is summarily dismissed with no orders as to costs. ( A.V.POTDAR, J.) ( P.V.HARDAS, J.) vvr/3644.09wp 7