1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8883 OF 2009 Maharashtra Public Service Commission, ] Having office at 4 th floor, ] Bank of India Building, ] M. G. Road, Fort, ] Mumbai – 400 001. ] (Through its Secretary) ].... Petitioner versus 1 Shri Kisan Tukaram More ] Age, Adult, ] Drugs Inspector, ] R/o. B­202, Sarovar Darshan Tower ] Opp. T. M. C. Office, ] Thane (W) – 400 602. ] Applicant in O. A. No. 129/2009 ] ] 2 Rajkumar V. Zadbuke ] Drugs Inspector – Class II in the ] Office of Food & Drugs Administration, ] Bandra Kurla Complex, Mumbai and ] R/at. 12/404, Tulsi Dham Kalyani ] C. H. S. Off. Ghodbunder Road,] ] Thane (W), Thane. ] ] 3 Rajendra L. Patil ] Drugs Inspector – Class II in the ] Office of Food & Drugs Administration, ] Thane and R/at. Flat No.11, ] Narmada Building, Mukund Society, ] Anand Park, Thane (W), Thane. ] 2 ] 4 Mrs. Prerna P. Mhanvar, ] Drugs Inspector – Class II in the ] Office of Food & Drugs Administration, ] Thane and R/at. B­6, Varsha Society, ] Sangita Building, Naupada, ] Thane (W), Thane. ] Applicants in O. A. No. 140/09 ] ] 5 Mukund M. Dongilkar ] Drugs Inspector – Class II in the ] Office of Joint Commissioner, ] Konkan Division, Food & Drugs ] Administration, Thane and ] R/at. B­303, Om Shankutal C. H. S. ] Panchpakadi, Thane (W), ] Thane. ] ] 6 Nitin D. Deore, ] Drugs Inspector – Class II in the ] Office of Commissioner, ] Food & Drugs Administration, ] M. S. Mumbai and R/at. D­203, ] Eternity C. H. S., Tin Hath Naka, ] L. B. S. Marg, Thane (W), Thane. ] ] 7 Jayant V. Yadav, ] Drugs Inspector – Class II in the ] Office of Joint Commissioner, ] Konkan Division, Food & Drugs ] Administration, 341, Bandra Kurla ] Complex, Mumbai and R/at. ] Sneha, A­3, Dr. Annie Bezant Road, ] Opp. Poddar Hospital, Worli, ] Mumbai – 400 018. ] ] 3 8 Manjetsingh K. Rajpal, ] Drugs Inspector – Class II in the ] Office of Joint Commissioner, ] Konkan Division, Food & Drugs ] Administration, ESIS Hospital, ] Thane (W), and R/at. 401, ] Dhiraj Valley Tower, Saibaba ] Complex, Goregaon (E), ] Mumbai – 400 063. ] ] 9 Rajesh P. Chaudhari, ] Drugs Inspector – Class II in the ] Office of Joint Commissioner, ] Konkan Division, Food & Drugs ] Administration, 341, Bandra Kurla ] Complex, Mumbai and R/at. B­301, ] Tirupati Apartments, Opp. Oswal Park ] Pokharan Road – 2, Thane (W), ] Thane – 400 601. ] ] 10 Kondiba G. Gadewar, ] Drugs Inspector – Class II in the ] Office of Joint Commissioner, ] Konkan Division, Food & Drugs ] Administration, Bandra Kurla ] Complex, Mumbai – 51 and ] R/at. C­401, New Harvard Society, ] Greenland Complex, G. B. Road, ] Thane (W), Thane. ] ] 11 Pramod Madhukar Patil, ] R/o. 102, Plot No.20, ] Naiantara Co­op. Housing Soc., ] Sector – 07, Airoli, Navi Mumbai, ] Thane – 400 708. ] Applicants in O. A. No.152/09 ] ] 4 12 Kishorkumar G. Chandak, ] Drug Inspector, Latur and holding ] Additional charge of the post of ] Drug Inspector & Assistant ] Commissioner of FDA, Osmanabad ] And R/at. “Kasturi” Majge Nagar, ] Near Dr. Ganu Hospital, Latur, ] District : Latur. ] Applicant in O. A. No. 153/09 ] ] 13 Ravindra P. Thete, ] Drugs Inspector in the Office of ] Assistant Commissioner, FDA, ] Ahmednagar and R/at. 202, ] Parvati, Govt. Quarters, ] Opp. Govindpura Naka, Ahmednagar. ] ] 14 Dilip A. Joshi ] presently holding charge of post of ] Assistant Commissioner, FDA, ] Jalna and R/at. Pratap Nagar, ] R­1, Shrirangleela, Near Little Woods ] Nursery, Aurangabad. ] ] 15 Vilas B. Tashedkar, ] Presently on deputation in the office ] of Jt. Commissioner, FDA, ] Aurangabad C/o. Joint Commissioner ] FDA, 2 nd floor, Nath Super Market, ] Aurangpura, Aurangabad. ] ] 16 Rajgopal M. Bajaj, ] working in the office of Joint ] Commissioner, FDA, Aurangabad and ] R/at. 5, 6 Manak Nagar Society, ] Opp. Narendra English School, ] Gajanan Nagar, Gardheda, ] 5 Aurangabad. ] Applicants in O. A. No.177/09 ] ] 17 The Commissioner, ] Food & Drugs Administration, ] Bandra Kurla Complex, ] Bandra (E), Mumbai – 400 051. ] ] 18 The State of Maharashtra, ] by and through the Principal Secretary ] of Medical Education & Drugs Dept. ] Mantralaya, Mumbai – 32. ]... Respondents. Mr.A A Kumbhakoni with Mr. A M Kulkarni for the Petitioners. Mr. Y S Jahagirdar, Senior Advocate, with Mr. N V Bandiwadekar for Respondent Nos.1 to 16. Mr. S R Nargolkar, GP for Respondent Nos.17 and 18. CORAM : A M KHANWILKAR & R M SAVANT, JJ Judgment Reserved on : 29/03/2010 Judgment Delivered on : 21/04/2010 JUDGMENT :­ [PER R M SAVANT, J]. 1. Rule, with the consent of the parties made returnable forthwith and heard. 2. By the above Petition filed under Article 226 of the Constitution of India, the Petitioner i.e. Maharashtra Public Service Commission, takes exception to the Common Judgment and Order 6 dated 14 th July 2009 passed in Original Application Nos.129, 140, 152, 153 and 177 of 2009 by the Maharashtra Administrative Tribunal. (For short the Tribunal) 3. The said Original Applications were filed by the Respondents herein i.e. the original applicants who are all working as Drugs Inspector – Class II [The parties would be referred to as per their status in the Original Applications before the Tribunal, except the Maharashtra Public Service Commission, which would be referred to as the Petitioner]. The dispute concerns the appointment to 12 posts of Assistant Commissioner (Drug), General State Services, Group “A” in the Food Administration Department of the Government of Maharashtra. 4. The facts giving rise to the filing of the above Petition can be briefly summarised thus :­ The Applicant Nos.1 to 16 are working in the Food Administrative Department which comes under the Medical Education and Drugs Department, Government of Maharashtra. 7 As mentioned herein above, all the Applicants are working in the post of Drugs Inspector. Some of the Applicants are holding the Bachelors Degree in Pharmacy i.e. B.Pharm. while some are holding the Masters Degree in Pharmacy i.e. M.Pharm. It appears that in the beginning of the year 2008, the State Government through the Principal Secretary, Medical Education & Drugs Department, forwarded a requisition to the Chairman/Secretary of the Petitioner­MPSC for filling up 12 posts of Assistant Commissioner of Drugs. The break up of the said posts is as under:­ Open : 5 + 1 (Female) + 1(Sportsman) Schedule Caste : 1+ 1 (Female) Other Backward Class : 2+ 1 (Female) On the basis of the said requisition, an advertisement came to be issued by the Respondent No.1­MPSC in the local newspapers on 23 rd May 2008 inviting applications from the eligible candidates. It is relevant to reproduce the qualifications for the said posts; “5. QUALIFICATIONS : 5.1 Candidates must ­ 5.1.1 Possess a degree in Pharmacy or Pharmaceutical Chemistry or in Medicine with specialization in Clinical Pharmacology or 8 Microbiology from a university established in India by Law; And 5.1.2 Experience gained after acquiring qualification mentioned in clause 5.1.1. above, in the manufacture or testing of drugs or enforcement of the provisions of the Act for a minimum period of five years; and 5.1.3 Have adequate knowledge of Marathi so as to be able to speak, read, write Marathi with facility. 5.1.4. Preference may be given to candidates, having a post graduate degree in any one of the subject mentioned in sub­clause 5.1.1. above or degree in law or research experience in the synthesis and testing of drugs. 5. The Applicants applied for the said posts in open category pursuant to the said advertisement. The Petitioner­MPSC informed the Applicants that they are not eligible as per the criteria for direct recruitment to the post of Assistant Commissioner. The said letter inter­alia contains the reason which was mentioned as follows :­ “Not eligible as per criteria” On the back side of the said letter, it was mentioned as follows :­ “lgk;d vk;qDr (vkS”k/ks) – Assistant Commissioner (Drugs), sdfjrk fud”k :­ 9 1) v) vuqlqfpr tkrh (loZlk/kkj.k) oxZokjhdfjrk fud”k :­ Post Graduate Degree in Pharmacy or Pharmaceutical Chemistry or in Medicine with specialization in Clinical Pharmacology or Microbiology and thereafter 10 years full time experience on the post of Drug Inspector/Assistant Commissioner. 2) vekxkl (loZlk/kkj.k) oxZokjhdjhrk fud”k :­ c) Post Graduate Decree in Pharmacy or Pharmaceutical Chemistry or in Medicine with specialization in Clinical Pharmacology or Microbiology + Degree in Law and thereafter more than 10 years full time experience on the post of Drug Inspector/Assistant Commissioner. OR d) Post graduate degree in Pharmacy or Pharmaceutical Chemistry or in Medicine with Specialization in Clinical Pharmacology or Microbiology and thereafter more than 14 years, 6 months full time experience on the post of Drug Inspector/ Assistant Commissioner OR M) Degree in Pharmacy or Pharmaceutical Chemistry or in Medicine with Specialization in Clinical Pharmacology or Microbiology + Degree in Law and thereafter more than 15 years full time experience on the post of Drug Inspector/Assistant Commissioner. 10 6. Aggrieved by the said letter dated 7 th February 2009 of the Petitioner­MPSC of not calling the Applicants for interview, though according to them they were fulfilling the qualification prescribed by the Rules, the Applicants filed the Original Applications whose numbers have been mentioned in the earlier part of this Judgment. The sum and substance of the case of the Applicants in the said Original Applications was that the Applicants were fulfilling the qualification/eligibility criteria prescribed by the Rules and the advertisement and, therefore, the action of the Respondent No.1 of not calling them for interview was arbitrary and illegal. The Applicants, therefore, prayed in the said Original Applications that the said letter dated 7 th February 2009 issued by the Respondent No.1 should be quashed and set aside and the Applicants be directed to be called for interview. 7. The said Original Applications were opposed by the MPSC being the Respondent No.1 in the Tribunal i.e. the Petitioner herein by filing affidavit in reply of one Shri C. V. Pawar 11 – The Desk Officer working in the office of Petitioner. In the said affidavit it was stated that in all 6 posts were originally available for open category for which 92 candidates were found prima facie eligible. Similarly for S.C. (General) category, 17 candidates were found prima facie eligible. It was further stated in the said affidavit that in the terms of the Rules of Procedure of the Petitioner, in so far as seats meant for open category is concerned, the ratio of 3 candidates for one seat to be short­listed for interview and the ratio of 5 candidates for one seat for S.C (General) Category was required to be followed. It was further stated in the said affidavit that in so far as posts meant for S.C. (Female), O.B.C.(General) and Open (Female), since the number of candidates available from these categories were in proportion with the number of posts advertised for these categories, the Petitioner did not fix any criteria for the said categories. It was further stated that for maintaining the ratio between vacancies and number of candidates to be called for interview, the applicants were short­listed for interview on the basis of reasonable criteria which resulted into the disqualification of the applicants for 12 interview which was accordingly communicated to the Applicants vide the said letter dated 7 th February 2009. It was further stated that since the Applicants were not fulfilling the educational qualification and experience as mentioned in the criteria adopted for short­listing their names were dropped, for being called for interview in the said process of short­listing. It was also stated that the qualification prescribed in the advertisement indicated minimum eligibility criteria and that by itself did not confer any right on the candidates possessing minimum prescribed qualification for being called for interview. The criteria fixed for the said short­listing was based on the preferential qualification prescribed in the Recruitment Rules of the said post. It was therefore stated that the weightage was given to the candidates possessing preferential qualification i.e. M.Pharm or LL.B degree or both and since enough candidates possessing preferential qualification were available, the applicants were not called for interview. It was also stated that the said criteria for short­listing was not made applicable to the candidates from S.C. (Female), O.B.C. (General) and (Female), and Open (Female) as the 13 candidates from said categories were in proportion to the number of posts available. Therefore, there was no question of short­ listing. It was lastly contended that the Petitioner was entitled to prescribe a criteria for short­listing and such procedure is upheld by the Apex Court in the matter of M.P. Public Service Commission v/s. Navnit Kumar Potdar, reported in AIR 1995 SC 77. It was therefore the case of the Petitioner that there was no merit in the Applications and therefore prayed for its dismissal. 8. To the said affidavit in reply, a rejoinder came to be filed on behalf of the Applicants in Original Application No.140 of 2009 and the contentions sought to be raised by the Petitioner were sought to be disputed. 9. The Tribunal heard all the Original Applications together as they involved a common question and by the impugned judgment and order dated 14 th July 2009 disposed off the said Original Applications by directing the Petitioner­MPSC to interview the Applicants, if they are not already interviewed, 14 provided that they are fulfilling the preferential criteria laid down by Petitioner, except the criteria of law degree as an additional qualification and take steps according to law. 10. The gist of the reasoning given by the Tribunal was that in terms of the Recruitment Rules of 2002 for the said post of Assistant Commissioner (Drugs) as well as in the advertisement, the preferential criteria was laid down and it was post graduation or degree in law. However, the Petitioner, while laying down preferential criteria for short­listing in 2(b) and 2(d) mentioned post graduation plus degree in law. According to the Tribunal, the degree in law in the criteria for short­listing was not shown as an alternative, but it was shown as compulsory. This according to the Tribunal was not in accordance with the statutory Rules of Recruitment and the advertisement issued for the said post. The Tribunal further held that though in terms of the Rules of procedure for short­listing, the Petitioner could have enhanced the requirement of experience or requirement of higher 15 educational qualification. Instead of doing so, the Petitioner has laid down a criteria of an additional educational qualification as preferential criteria. The Tribunal was of the view that the same was in fact not in conformity with the statutory rules and in fact was violative of the statutory Rules of Recruitment which had the effect of depriving the applicants and others who were in fact possessing minimum educational qualification and having large experience and even fulfilling the preferential criteria of enhanced experience for being called for interview. The Tribunal was, therefore, of the view that the Applicants have been wrongly denied the call for interview, as they were not holding a law degree and, therefore, the Tribunal thought it fit to set aside the communication dated 7 th February 2009 addressed to each of the Applicants and directed the Petitioner to call the Applicants for interview. 11. As indicated above, it is the said judgment and order dated 14 th July 2009 of the Tribunal, which is impugned in the above Petition. 16 12. We have heard Shri A A Kumbhakoni, the learned counsel appearing for the Petitioner­MPSC and Shri Y S Jahagirdar, the learned senior counsel appearing for the Respondents­Original Applicants and Shri S R Nargolkar, the learned Government Pleader appearing for the State/Respondent Nos.17 and 18. 13. On behalf of the Petitioner, the thrust of the submissions was on the right of the Petitioner i.e. MPSC to adopt process of short­listing of the candidates, to be called for interview. The learned counsel submitted that the Tribunal, after having held that the Petitioner was within its right to short­list its candidates for interview, has thereafter misdirected itself by holding that the criteria adopted for short­listing was dehors the Rules of Recruitment and the advertisement. The learned counsel for the Petitioner on the aspect of short­listing, relied upon the judgment of the Apex Court reported in M.P. Public Service Commission v/s. Navnit Kumar Potdar, reported in AIR 1995 SC 77. The said case concerned recruitment of Presiding Officers of the Labour Courts constituted under the provisions of M.P. Industrial Relations 17 Act, 1960. The qualifications required for the said post are mentioned in Section 8(3)(c) of the Act which requires that the applicants should have practiced as an advocate or a pleader for a total period of not less than five years. An advertisement came to be issued for 9 posts of Presiding Officers to be filled up, out of which only 4 posts were available to the general category candidates. In pursuance to the said advertisement, several applications were received. In view of the fact that only 4 posts were available for general category, a decision was taken by the Public Service Commission to call for interview only 71 candidates, although 188 applicants were eligible, as per the requirement of the advertisement. Only those candidates were called for interview who had completed seven and half years of practice. The said process of short­listing was challenged by way of a writ petition in the High Court. The High Court allowed the writ petition taking the view that as the statutory qualifications in respect of the practice was only 5 years, raising the said period from five to seven and half years amounted to laying down a criteria in violation of the prescribed statutory criteria. A direction 18 was given either to call all the applicants for interview who had completed 5 years of practice as required by Section 8(3)(c) of the Act or to screen the applicants through some test and thereafter to call only such applicants for interview who qualify at the said screening test. The matter was carried in appeal to the Apex Court. The Apex Court set aside the judgment of the High Court by holding that the process of short­listing of the applicants by calling those applicants who had completed seven and half years practice cannot be said to be in conflict with the requirement of Section 8(3)(c) because such applicants having longer period of practice shall be presumed to have better experience. The Apex Court observed that if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violative nor in conflict with the requirement of Section 8(3)(c) of the Act. The rationale behind the short­listing of candidates finds place in Paragraphs 8 and 9 of the said Judgment which are reproduced herein­under :­ 8. The sole purpose of holding interview is to search and select the best among the 19 applicants. It is obvious that it would be impossible to carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview. It appears that Union Public Service Commission has also fixed a ratio for calling the candidates for interview with reference to number of available vacancies. 9. In Kothari Committee's Report on the "Recruitment Policy and Selection Methods for the Civil Services Examination" it has also been pointed out in respect of interview where a written test is also held as follows:­ "The number of candidates to be called for interview, in order of the total marks in written papers, should not exceed, we think, twice the number of vacancies to be filled ...... In this background, it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It 20 need not be pointed out that this decision regarding short­listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question. This process of short­listing shall not amount to altering or substituting the eligibility criteria given in statutory rules or prospectus. In substance and reality, this process of short­listing is part of the process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short­listed, the process of selection commences, If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and half years of practice are only called for interview because such applicants having longer period of practice, shall be presumed to have better experience. This process will not be in conflict with the requirement of Section 8(3)(c) which prescribes the eligibility for making an application for the post in question. In a sense Section 8(3)(c) places a bar that no person having less than five years of practice as an advocate or a pleader shall be entitled to be considered for appointment to the post of Presiding Officer of the Labour Court. But if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violative nor in 21 conflict with the requirement of Section 8(3)(c) of the Act.” By the said Judgment, the criteria of higher experience then the one prescribed by the Recruitment Rules was upheld by the Apex Court. The said judgment further lays down that short­listing can be done on some rationale and objective basis so that the personality and merit of the persons who are called for interview are properly assessed and evaluated. 14. The learned counsel for the Petitioner further submitted that the Petitioner was within its right to prune the number of candidates at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. For the said purpose the learned counsel for the Petitioner placed relied on the judgment of the Apex Court reported in (1997) 4 SCC 664 in the case of Union of India and anr. v/s. Sundararaman and others. Paragraph 4 of the said 22 judgment is material which is reproduced herein­under :­ “The Tribunal has clearly erred in doing so. Note 21 to the advertisement expressly provides that if a large number of applications are received the commission may shortlist candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission vs. Navnit Kumar Potdar & Anr. JT (1994)