-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1193 OF 2010 Prakash Bapurao Hote, ) residing at B-202, Roopmaya Housing Society, ) Plot No. 7, Sector-6, Airoli Node, P.O. ) Navi Mumbai-400 708 )..Petitioner versus 1. The State of Maharashtra ) 2. The Maharashtra State Electricity Transmission ) Company Limited, Human Resources Department, ) through Chief General Manager, Airoli, ) P.O. Navi Mumbai-400 708 ) 3. The Managing Director, ) Maharashtra State Electricity Transmission ) Company Limited, Prakash Ganga, Mumbai. ) 4. Maharashtra State Electricity Board holding Company ) having its office at Prakashghad, Bandra (East), ) Mumbai. )..Respondents Mr. P.M. Pradhan, instructed by Smt. Leena Patil, for the petitioner. Smt. S.S. Bhende, AGP, for respondent No.1. Mr.Chirag Modi with Mr. Karthik Somsundaram, instructed by DSK Legal, for respondent Nos. 2 and 3. WITH WRIT PETITION NO. 2009 OF 2010 Dr. Sanjay Shrikrishna Kulkarni ) Indian Inhabitant, aged 50 years, Occ. Service, ) having address at MSEB Complex, “Krushna” Building, ) -2- Block No.8, Thane-Belapur Road, Airoli, ) Navi Mumbai-400 708 )..Petitioner versus 1. Maharashtra State Electricity Transmission ) Company Limited, “Prakashganga”, Plot No. C-19, ) E-Block, Bandra-Kurla Complex, Bandra (East) ) Mumbai-400 051. ) 2. The Managing Director, ) Maharashtra State Electricity Transmission Company ) Limited, “Prakashganga”, Plot No. C-19, ) E-Block, Bandra-Kurla Complex, Bandra (East) ) Mumbai-400 051. ) 3. The State of Maharashtra ) Through the Addl. Govt. Pleader, High Court, ) Appellate Side/Original Side, Bombay. )..Respondent. Mr. Ketan A. Chothani for the petitioner. Mr. Chirag Modi with Mr. Karthik Somsundaram, instructed by DSK Legal, for respondent Nos. 1 and 2. Smt. S.S. Bhende, AGP, for respondent No.3. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. DATE: APRIL 28, 2010. ORAL JUDGMENT: (Per P.B. Majmudar, J.) Rule. Learned counsel appearing for the respondents in both these petitions waive service of Rule. With the consent of the learned counsel appearing for the parties, both these petitions are taken up for hearing forthwith. -3- 2. Since the issue involved in both these petitions is common, these petitions are disposed of by this common judgment. 3. The prayers in Writ Petition No. 1193 of 2010 may be noticed. The petitioner has challenged the action of the Maharashtra State Electricity Transmission Company (hereinafter referred to as “respondent No.2”) by which respondent No.2 has cancelled the selection process initiated by it for the purpose of appointment to the post of Chief Engineer (Transmission). It is the case of the petitioner that the order passed by Respondent No.2 dated 2nd January, 2010 is published on the website by which information is given that the said selection process undertaken for the appointment to the post of Chief Engineer (Transmission) is cancelled. It is further prayed that respondent No.2 should be directed to consider the case of the petitioner for appointment to the said post. 3.1 The prayers in Writ Petition No. 2009 of 2010 may be noticed. The petitioner has challenged the cancellation of selection process undertaken by Respondent No.2 and has prayed that since he was already selected for the aforesaid post of Chief Engineer (Transmission), the action of Respondent No.2 in cancelling his selection should be set aside and respondent No.2 should give him appropriate appointment in view of his selection. -4- 4. The Respondent No.2 gave an advertisement, a copy of which is at Exhibit-A in Writ Petition No. 1193 of 2010) being Employment Advertisement No. 4/2009. By the said advertisement, applications were invited for the appointment to the post of Chief Engineer (Transmission) along with other posts. In the said advertisement, educational qualifications for the said post prescribed are Bachelor’s Degree in Electrical Engineering/Technology or its equivalent from a recognised Indian University/Institution of Technology, MIE of Institution of engineers India/equivalent degree from a recognized Foreign Institute. Regarding experience part, it is also provided in the advertisement that a candidate must possess post qualification experience on Transmission side of not less than 15 years. Out of which, 3 years should be in a senior managerial level. Respondent No.2 thereafter by way of short-listing prepared a list of three candidates in an alphabetical order which included the petitioners of each of these petitions and one Ramarao Suresh. Subsequently, the selection process was undertaken by way of taking presentation and interview. The Selection Committee found one Kulkarni Sanjay Shrikrishna suitable amongst the candidates for the appointment as per the performance in the interview. Accordingly the Selection Committee selected the said candidate. A copy of the said order is produced at page 35 at Annexure-E to Writ Petition No. 1193 of 2010. The petitioner of the said petition thereafter started making representations to respondent No.2 on the ground that the said selected -5- candidate is not having 15 years experience on Transmission side as prescribed by the advertisement and since he is having the requisite experience, the selection of the said candidate is required to be set aside and the petitioner of Writ Petition No. 1193 of 2010 is required to be selected as he is next in the merit list and he is having 15 years required experience on transmission side as per the said advertisement. In view of the said representation, respondent No.2 re-considered the matter. Ultimately, Respondent No.2 took a decision that in view of the difficulty/ambiguity in the interpretation of eligibility criterion prescribed in the advertisement regarding experience for the post of Chief Engineer (Transmission) issued on the basis of the advertisement in question, it was ultimately decided to give fresh advertisement and a decision was taken accordingly to cancel the selection process which was already undertaken. As pointed out earlier, the said decision was placed on the website and that is how the petitioner of Writ Petition No. 1193 of 2010 came to know about the same and has challenged the cancellation of the selection process by the aforesaid writ petition. 5. Mr. Pradhan, learned counsel appearing for the petitioner in Writ Petition No. 1193 of 2010, submitted that when the advertisement was issued, the petitioner was having the requirement of 15 years experience on Transmission side and, therefore, there was no reason to cancel the selection process. In order to substantiate his say that the petitioner was next in the -6- select list, he has relied upon the office note prepared by the General Manager dated 23rd December, 2009. In the said office note, the General Manager had given four proposals in his note i.e. (i) to notify /publish revised select list of Chief Engineer (Trans.) , (ii) to appoint Shri P.B. Hote to the post of Chief Engineer (Transmission) and and post him against the vacant post of Chief Engineer (special Project). There are other two proposals with which the Court is not concerned as that is not the subject matter in these proceedings. Relying upon the office note, it is argued by Mr. Pradhan that when the petitioner Mr. Hote who is next in the select list and when the petitioner of Writ Petition No. 2009 of 2010 has been held ineligible as selection was of only one candidate, the next person i.e. Petitioner (Mr. Hote) should have been appointed as the petitioner had legitimate expectation to get such appointment. Mr. Pradhan also submitted that as per the advertisement, Mr. Sanjay Kulkarni was not at all qualified as he was lacking 15 years experience on Transmission side and if his case was taken out of consideration, the only option available for respondent No.2 is to appoint the Petitioner on the aforesaid post. Mr. Pradhan has challenged the non-appointment solely on the ground that the petitioner had a reasonable expectation to get such appointment and by not appointing him on the said post, the respondent No.2 has acted in a discriminatory manner and the said section is in violation of Articles 14 and 16 of the Constitution of India. As pointed out earlier, this is the sole grievance of the petitioner of Writ Petition No. 1193 of 2010 . -7- 6. Mr. Chothani, learned counsel appearing for the petitioner in Writ Petition No. 2009 of 2010, has challenged the action of respondent No.2 of cancelling the selection process on the ground that when the petitioner Mr. Sanjay Kulkarni having been selected, his selection should not have been cancelled by Respondent No.2 as, according to him, the said selection is cancelled on irrelevant grounds. According to Mr. Chothani, 15 years experience in transmission side would include even experience on the distribution side. As transmission and distribution being a common cadre before the re-organisation of the Maharashtra State Electricity Board, the only logical way to interpret this experience is to include the experience gained both on transmission as well as on distribution side. He submitted that in that view of the matter, the cancellation of the petitioner’s selection is wrong. The second respondent should not have started fresh selection process in this behalf and by deciding to invite fresh advertisement by cancellation of the selection process, it has resulted into manifest injustice to the petitioner. 7. Mr. Chirag Modi, learned counsel appearing for respondent No.2- Transmission Company in both petitions, fairly submitted that since there was an ambiguity in the advertisement in the matter of prescribing experience criterion that after due application of mind, respondent no.2 now has decided to -8- cancel the selection process and to invite fresh applications on the basis of revised criterion which is going to be finalised by respondent No.2 within a short time. Mr. Modi has relied upon the office note prepared by the General Manager in this behalf dated 2nd January, 2010. As per the office note, prior to unbundling of the Maharashtra State Electricity Board, there was a common cadre called as “Transmission and Distribution (T & D) cadre. The transmission side was in existence separately upto the level of circle. However, the zones for transmission and distribution circle were common. Many functions like Testing etc. were common for the circles and testing work also carried out commonly for both the sides. It is also provided that there are difficulties in differentiating/segregating the transmission and distribution side experience. Ever since the formation of the Company in 2005, the experience on transmission side has become contentious issue for the Engineers. In the said note it is also provided that in view of the numerous representations received from the Engineers over the issue of counting transmission experience in selection to the post of Chief Engineer, non-inclusion of the person of the level of Director from Respondent No.2 in the selection process for such key/HOD post, to avoid the unrest of Engineers and also taking into consideration the fact that no waiting list was prepared, the following course of action was submitted for consideration i.e. to cancel entire recruitment process for the post of Chief Engineer and re-advertise vacancy and to revise the pre-requisite for the post of Chief Engineer (Transmission). Relying on the said note, Mr. Modi submitted -9- that since there was ambiguity in the advertisement in this behalf that ultimately it was decided to re-advertise the post. It is submitted by Mr. Modi that there is no allegation of mala fide in any manner in any of the writ petitions and since no appointment order was given to any of the candidates it was within the right of the Board to re-consider the issue and invite fresh application after framing appropriate policy in this behalf. 8. We have heard the learned counsel appearing for the parties at length. 9. In our view, none of the petitioners has any right to insist that they should be appointed to the post in question. It is no doubt true, as argued by Mr. Pradhan, that in the advertisement which was issued, experience criterion which was prescribed was 15 years on the Transmission side and that the petitioner of Writ Petition No. 1193 of 2010 may be the only qualified person so far as experience is concerned. However, it is not in dispute that the said petitioner was never placed in the select list. No waiting list was prepared by the Board and ultimately having realised certain difficulties, on the basis of the representation of the petitioners, respondent No.2 has ultimately decided to scrap the selection process and to re-advertise the same after framing appropriate policy in this behalf. It cannot be said that the second respondent has acted in any arbitrary manner. The law on the subject is well settled by a -10- catena of judgments of the Supreme Court to the effect that till a person gets appointment, he has no right to the post and it is always open to the employer to undertake fresh selection process. In this behalf reference is required to be made in the case of Shankarsan Dash vs. Union of India1 wherein it has been held by the Supreme Court that the candidate included in the merit list has no indefeasible right to appointment even if a vacancy exists. Reference is also required to be made to the decision of the Supreme Court in the case of Divisional Forest Officer and others vs. M. Ramalinga Reddy2 wherein it has been held that a selected candidate has no legal right to be appointed automatically. 10. So far as the facts of the present matters are concerned, it is not in dispute that none of the candidates was actually appointed but the petitioner of Writ Petition No. 2009 of 2010 was merely selected awaiting appointment order. Considering the factual aspect of the matter and considering the submission of Mr. Modi, in our view, it cannot be said that the action of respondent No.2 in cancelling the selection process and to undertake the same afresh can be said to be in any way discriminatory or arbitrary in any manner. 11. As pointed out earlier, Mr. Pradhan’s argument is based solely on the basis of legitimate expectation. In our view, the petitioner of Writ Petition No. 1193 of 2010 was not even selected and, as pointed out earlier, even no 1 (1991) 3 SCC 47 2 (2007) 9 SCC 286 -11- waiting list was prepared by the second respondent. The doctrine of legitimation expectation in such a case, therefore, cannot be made applicable as it is always open to the management to revise the criterion for appointment and such decision can always be taken by prescribing some additional qualifications in the Recruitment Rules, if any, or even in the notification or circulars in case no such statutory rules are framed. In our view, in the matter of appointment, the doctrine of legitimate expectation has hardly any place as the appointment is required to be made in accordance with the Rules and Regulations. It cannot be said that the employer has given any express promise to the petitioners by which the petitioners can have legitimate expectation. The contention of Mr. Pradhan that the petitioner has legitimate expectation to get employment, in our view, cannot be accepted. A person can be said to have legitimate expectation of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly. It can never be said that any promise was given to the petitioner in any manner by the employer that he will be appointed on the said post. Even otherwise, if a decision is taken by the Administration in the interest of all the employees and on reasonable ground such decision cannot be set aside by us by holding that the petitioner had legitimate expectation to get appointment on the post in question and, as pointed out earlier, the petitioner was not even placed on the select list. -12- 12. Considering the said aspect as well as considering the say of the second respondent that since there was a confusion about the experience part as the cadre of transmission and distribution was common and since it was not possible to find out the experience criterion even if a candidate might have served for few years on transmission side and few years on distribution side and in such eventuality ultimately it was decided to come out with a clear policy in this behalf, the selection process was cancelled. Mr. Modi submitted that once the cadre is common i.e. transmission and distribution, candidates were entitled to transfer from one department to another department and, therefore, the second respondent found it difficult to find out how the experience criterion is to be arrived at. Since it is not in dispute that the transmission and distribution was common cadre, the difficulty experienced by the second respondent cannot be ruled out. Even otherwise, this Court cannot sit in appeal over the wisdom of the Board. The Board may ultimately decide to frame a policy, but we can surely say that this is not a case in which it can be said that the cancellation of the selection process in any way is not justified. 13. So far as the facts of the case in Writ Petition No. 2009 of 2010 is concerned, we are not in a position to accept the submission of Mr. Chothani that once, rightly or wrongly, if the petitioner is selected and put on the select list, it is not open for respondent No.2 to cancel the selection process. He has fairly submitted that it is true that as per the advertisement the petitioner was -13- not possessing 15 years experience on transmission side but according to him since it is clear that the transmission and distribution was a common cadre and if his experience on distribution side is also to be considered, he was fulfilling 15 years experience and, therefore, he was rightly selected by the second respondent. This argument, no doubt, prima facie sounds attractive. It is required to be noted that if there is any ambiguity in the advertisement given by the Board where 15 years experience only on the transmission side is prescribed in the advertisement, a candidate who might have experience like the petitioner of Writ Petition No. 2009 of 2010, might not have applied on the ground that he is not having 15 years experience solely on the transmission side. Considering this difficulty, Mr. Modi has assured that this ambiguity and difficulty will be cleared in the next advertisement so that this dispute may not arise again. In our view, the grievance raised by Mr. Chothani is also not justified. In any case, considering the difficulties faced by the second respondent, if the Board has decided to re-advertise the post by giving proper advertisement regarding the qualification and the experience for the post in question, in our view, there is absolutely no justification in respect of the grievance raised by the petitioners in these petitions. Mr. Modi has assured that the second respondent will apply its mind properly before hurriedly giving any advertisement. The second respondent may act accordingly so far as the selection process to be undertaken henceforth for the post in question. -14- 14. In view of what is stated above, we do not find any merit in any of the petitions. Rule in both the writ petitions is discharged. Ad-interim relief stands vacated. No order as to costs. P. B. MAJMUDAR, J. R.G. KETKAR, J.