1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR MISC. CIVIL APPLICATION (REVIEW) NO. 793/05 AND WRIT PETITION NO. 1719/2005 (Ravindra Shriram Thengre & 21 ors vs. State of Maharashtra and others) WITH CIVIL APPLICATION NO. 9390/2007 WITH ;CIVIL APPLICATION NO. 7707/2006 WITH CIVIL APPLICATION NO. 5390/2006 AND MISC. CIVIL APPLICATION (REVIEW) NO. 181/2006 AND WRIT PETITION NO. 1724/2005 (The Zilla Parishad Kanishta Lipik Bharati Sangharsha Samiti and others vs. State of Maharashtra and others) WITH CIVIL APPLICATON NO. 2303/2007 -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Shri S.V.Sirpurkar, Adv. and Shri M.P.Khajanchi, Adv. for applicants/ petitioners. Smt. Bharti Dangre, Addl. G. P. for Respondents CORAM : A.M.KHANWILKAR AND S.R.DONGAONKAR, JJ DATED : 30 th JUNE, 2008. P.C. 1. By consent of all parties, we proceeded with the hearing of the main issue involved in the present proceedings and by this common order, propose to dispose of all the proceedings together. 2 2. Misc. Civil Application No. 1871/2006 arises out of the order passed in Writ Petition No. 1724/2005, dated 4th October, 2005, whereas Misc. Civil Application No. 793/2005 arises out of the order passed in Writ Petition No. 1719/2005, dated 4th October, 2005. The latter order is the leading order which was followed for disposing of Writ Petition No. 1724/2005. 3. During the pendency of the above said two applications, Civil Application No. 2303/2007 has been filed by one of the candidate who participated in the selection process in question, to be impleaded as petitioner along with other petitioners in Writ Petition No. 1724/2005 (and Misc. Civil Application No. 181/2006); whereas Civil Application Nos. 9390/07, 7707/2006 and 5390/06 have been filed by 12 candidates similarly placed who had participated in the selection process in question, to be impleaded as petitioners in Writ Petition No. 1719/2005 (and Misc. Civil Application No. 793/2005). 4. The original Writ petition No. 1719/2005 was filed by 18 petitioners, later on 4 more petitioners were added by way of amendment, making the total number to 22 petitioners before the order under review was passed. Thereafter, during the pendency of review application, 12 other persons named in the respective applications approached this Court for being added as petitioners, thereby taking the total number of petitioners to 34. Similarly, Writ Petition No. 1724/2005 was filed originally by 13 3 petitioners, on which the order under review came to be passed. The applicant in Civil Application No. 2303/07 has asked for impleading him as one of the petitioners in the said writ petition, as well Misc. Civil Application No. 181/2006, being similarly placed, thereby taking the total number of petitioners to 14. In other words, as of now, the aforesaid actions are pursued by in all 48 petitioners. 5. Ordinarily, we would have first proceeded to dispose of the applications for impleadment and only after the amendment to the pleadings was carried out, taken up the review petitions and thereafter writ petitions for hearing. However, in the peculiar facts of the present case, which will be referred to little later, we have, with the consent of all the parties, preferred to address the main issue. This course has been adopted with the consent of all parties appearing before us through counsel on clear understanding to dispense with all the technical formalities and instead assume that the same are fully complied with. This is so because the opinion already recorded in the orders passed on the review petitions, which in our view answers the issue as to whether the order under review deserves to be reviewed or otherwise. The opinion so recorded is in effect indicative of the fact that the orders in question need to be reviewed for the reasons mentioned therein. We will refer to the said orders little later. There is yet another reason for which we think it fit to hear the main issue forthwith, having regard to large number of posts to be filled-in in the District Court at Gadchiroli, which action 4 has remained pending since the year 2005 on account of pendency of the proceedings in this Court for appropriate decision. 6. We shall briefly indicate the broad facts necessary to answer the points in issue. Respondent No. 2 caused to issue advertisement to ignite the process of appointing 81 junior clerks in it's establishment. In response to the said advertisement, 2680 applications were received. Out of the said applications, only 285 applications were found to be valid. In the circumstances, the screening test was undertaken in respect of the said applications in which 237 candidates were selected. In further scrutiny, 12 candidates, out of the said 237 candidates, were found to be ineligible. In the process, 225 candidates were considered eligible for undergoing typing tests in Marathi and English. Out of 225 candidates, only 10 candidates were successful in Marathi Typewriting Test of minimum of 30 W.P.M. Later on 186 candidates passed the Marathi test with speed of over 10 W.P.M. The said candidates were given chance to improve the speed. At the end, it is only 134 candidates who could pass English typing with speed of 40 W.P.M. The said 134 candidates were asked to appear for personal interview on 9th & 10th October, 2004. After the performance in the interview, the marks secured by each of the candidates were considered by the Advisory Committee. The Advisory Committee then resolved to recommend only those candidates who have had secured more than 70 aggregate marks. That recommendation was forwarded 5 to the Respondent 1A – High Court, which in turn accepted the same. Thereafter the said 16 candidates were issued appointment letters with certain conditions. 7. The original petitioners filed writ petitions principally challenging the decision of the Advisory Committee to eliminate the candidates who have secured less than 70 aggregate marks, which was not the condition mentioned either in the advertisement or provided under any rule. The grievance of the petitioners was considered by this Court in both the writ petitions which came to be disposed of. In the leading petition being Writ Petition No. 1719/2005, the following order was passed on 4th October, 2005. “ Heard Mr. S.V.Sirpurkar, learned counsel for the petitioner and Mrs. B. Dangre, learned counsel for Respondent No.1. We have considered the contentions canvassed by the respective counsel. The learned AGP contended that on 19.8.2004 there was an advertisement calling applications to fill up the post of Junior Clerk. The total vacancies were 81 and the minimum qualification was S.S.C. and the preference was given to the graduate, post-graduate and degree in law. The other conditions were, the candidate must possess ability to type English 40 W.P.M., Marathi 30 W.P.M. and knowledge of computer. The total number of applications received were 2680. The Advisory Committee found 285 applications valid. The following marks were allotted to different categories:- 6 For Screening .. 40 marks For Marathi Typing .. 20 marks For English Typing .. 20 marks For Oral Interview .. 20 marks. It is further contended that the screening was done on 2.10.2004 and 237 candidates appeared, out of which 12 were not eligible. The list of 225 candidates was published. It is further contended by the learned AGP that, out of 225 candidates, so far as condition of Marathi typing is concerned, only 10 candidates could clear this condition i.e. 30 W.P.M. However, looking to the strength of the candidates those who have fulfilled the other conditions, a decision was taken to reconsider the issue and permitted the candidates who were successful in typing 10 W.P.M. in Marathi. The strength of such candidate was 186 and these candidates were given chance to fulfill the condition of English typing and out of 186 candidates, 134 candidates have fulfilled the condition of English typing i.e. 40 W.P.M. Then interviews were held on 9.10.2004 and 10.10.2004 and in the interview, 16 candidates were selected those who have secured 70% marks. Therefore, we are of the view that the procedure adopted by the respondents is just and proper and selection which is made appears to be consistent with the procedure applicable in this regard. In that view of the matter, the petition suffers from lack of merit, the same is dismissed accordingly”. 8. The petitioners in the respective petitions later on came to know that the remaining 65 posts of junior clerks were likely to be offered to the candidates who were already eliminated and not even similarly placed like the petitioners, 7 disregarding the claim of the petitioners (who were treated as eligible candidates but were not recommended due to having secured marks below the qualifying marks prescribed by the Advisory committee i.e. 70 aggregate marks). In the circumstances, the writ petitioners moved separate review applications before this Court being Misc. Civil Application (Review) Nos. 793/2005 and 181/2006. As mentioned earlier, during the pendency of the said review applications, separate applications have been filed by the other candidates who claim to be similarly placed along with the petitioners in the two writ petitions/review petitions. At this stage it is apposite to advert to the order passed by this Court in Review Petitions dated 31st August, 2006, which read thus:- “ Heard Mr.Sirpurkar, Adv. and Mr. M.P.Khajanchi, Adv. for the applicants and Mrs. Dangre, A.G.P. for the respondents. Mrs.Dangre, A.G.P. seeks time till 4.9.2006 to seek instructions as to whether the present review petitioners can be permitted to participate in the fresh process of selection of Junior clerks, which is initiated for filling up 65 vacancies. It is brought to the notice of this Court that the Screening Test is scheduled to be held on 3rd September, 2006. Be that as it may, in case the petitioners' succeed, in that event, appropriate direction can be given to the respondents to hold Screening Tests for the petitioners, if necessary. Mrs. Dangre, A.G.P. further states that, so far as the petitioners namely Sudhakar S/o. Babarao Bhise, 8 Pramod s/o. Pandurang Borsare and Ujwala Pitamber Bhoyar are concerned, all of them have scored more than 70% marks in the earlier interview process and therefore, she wants to seek instructions from the competent Authority regarding re-consideration of their candidature for appointments on the posts of junior clerks pursuant to the interview process already undertaken by them and on the basis of marks secured by them in the said process. S.O. to 4.9.2006” (emphasis supplied) The matter was then listed on 4th September, 2006, when further order was passed, which read thus:- “ Heard Mr.Sirpurkar, Adv. and Mr. M.P.Khajanchi, Adv. for the applicants and Mrs. Dangre, A.G.P. for the respondents. Mrs. Dangre, A.G.P. informs that, on 19.8.2004, there was an advertisement calling applications to fill up the posts of Junior Clerks. The total vacancies were 81. The minimum qualification required was S.S.C. and preference was given to the candidates who are Graduates, Post-Graduates and holding degree in law. The following marks were allotted to different categories:- 1) For Screening .. 40 marks 2) For Marathi Typing .. 20 marks 3) For English Typing .. 20 marks 4) For Oral Interview .. 20 marks. The Screening test was held on 2.10.2004 and 237 candidates had appeared, out of which 12 candidates were not eligible. List of 225 candidates was published. Out of 225 candidates, only 186 could clear the Marathi typing test and finally 134 candidates have fulfilled the 9 condition of English typing as well as Marathi typing. The interviews were held on 9.10.2004 and 10.10.2004 and those candidates who have secured more than 70% marks in the process of selection, were appointed as Junior Clerks. Such candidates were 16 in numbers. It is contended that the respondent no.2 has once again initiated the process of filling up 65 vacancies and the candidates who had submitted the applications pursuant to the advertisement dated 19.8.2004 – other than 285 applications which were found to be valid, are being called to participate in the fresh process of selection for the post of Junior Clerks initiated by the respondent No. 2 – Committee. It is submitted that the Screening Test of these candidates was held on 3.9.2006. The English Typing test is scheduled to be held on 8th September 2006, Marathi typing test is scheduled to be held on 10.9.2006 and personal-oral interview is scheduled to be held on 13th September, 2006, onwards. The learned A.G.P. states that on 3.9.2006, 325 candidates appeared for the Screening Test. In the review petitions, the grievance of the review petitioners, in nutshell, is that, many of them have secured more than 60% marks in the process of selection. However, because of the bench mark of 70% marks required to be secured by the candidates in the process of selection for being eligible for grant of appointment for the post of junior clerk, the claims of the review petitioners are given go-bye. It was not mentioned in the advertisement dt. 19.8.2004 that the candidate who shall secure 70% marks and above in the selection process alone shall be given order of appointment and in absence thereof, the criteria of bench mark of 70% marks evolved by the Selection Committee is arbitrary and unjust. In the backdrop of the above referred facts, it is 10 difficult for us to appreciate as to how the respondent no.2 can once again consider the applications other than 285 applications received pursuant to the advertisement dt. 19.8.2004 since the total number of applications received pursuant to the said advertisement were 2680, out of which the respondent no. 2 found only 285 applications valid. If that is so, then by necessary implications the other applications cannot be said to be valid and therefore, only 285 candidates, out of total number of applications received i.e. 2680, were permitted to participate in the process of selection on the earlier occasion. In the backdrop of these facts, it is not known as to how the applications, which were not found to be valid on the earlier occasion, are being once again being considered by the respondent no.2, and such candidates were also called for the Screening test. We are prima facie of the view that the entire procedure adopted by the respondent no.2 in regard to filling up 65 vacancies appears to be not just and proper and we are of the view that unless the issue is adjudicated on merits, the selection process undertaken by the respondent no.2 cannot be permitted to be continued. In the circumstances, place the matter for final disposal at the stage of admission after six weeks. In the meantime, the process of selection undertaken by the respondent no.2 is hereby stayed”. (emphasis supplied) There is one more order passed in the review petitions, which needs to be reproduced being order dated 20th December, 2007, which read thus:- “ Heard Mr. SV S;irpurkar and Mr. MP Khajanchi, learned counsel for the review petitioners and Mrs. Bharti 11 Dangre, learned Assistant Government Pleader for the respondents. Mr.Sirpurkar, learned counsel, brought to our notice order dated 04/9/2006 passed in review petition whereby this Court has observed in the last two paragraphs thus; “In the backdrop of the above referred facts, it is difficult for us to appreciate as to how the respondent no.2 can once again consider the applications other than 285 applications received pursuant to the advertisement dt. 19.8.2004 since the total number of applications received pursuant to the said advertisement were 2680, out of which the respondent no. 2 found only 285 applications valid. If that is so, then by necessary implications the other applications cannot be said to be valid and therefore, only 285 candidates, out of total number of applications received i.e. 2680, were permitted to participate in the process of selection on the earlier occasion. In the backdrop of these facts, it is not know as to how the applications, which were not found to be valid on the earlier occasion, are being once again being considered by the respondent no.2, and such candidates were also called for the Screening test. We are prima facie of the view that the entire procedure adopted by the respondent no.2 in regard to filling up 65 vacancies appears to be not just and proper and we are of the view that unless the issue is adjudicated on merits, the selection process undertaken by the respondent no.2 cannot be permitted to be continued. in the circumstances, place the matter for final disposal at the stage of admission after six weeks. In the meantime, the process of selection undertaken by the respondent no.2 is hereby stayed.” Mr.Sirpurkar, learned counsel states that in spite of 12 stay granted by the Court to the process of selection, respondent no. 2 issued advertisement dated 30/11/2007 for filling up 117 vacancies which includes these 65 vacancies, and therefore, the act of the respondent amounts to contempt since it is in violation of the interim order passed by this Court, and therefore, the said advertisement may kindly be stayed till review petitions are decided. Mrs. Dangre, learned AGP does not dispute the factual aspect of the matter, however, contended that the petitioners may participate in the process of selection pursuant to the said advertisement without prejudice to their right in the petition. Learned A.G.P. further states that there are innumerable vacancies required to be filled in and the advertisement has already been published, the same may not be stayed since there is no deliberate or purposeful disobedience of the order passed by this Court. However, the endeavor is only to fill up the posts. We have considered the contentions canvassed by the respective parties. At this stage, we do not want to express anything in respect of breach or violation of our order by respondent no.1. However, we permit the petitioners to participate in the process of selection pursuant to the advertisement dated 30/11/2007 without prejudice to their rights in the petition. We further direct respondent no. 2 not to issue appointment orders unless permission is obtained from this Court. To be heard along with M.C.A. (Review) No. 181 of 2006. ” 9. As is indicated in the earlier part of this order, the purport of the orders passed in both the review petitions leave no manner of doubt that the Court decided to review the order and consider the main issue in the writ petitions on its own 13 merits, which obviously was not addressed in the order dated 4th October, 2005. It is in this backdrop, the parties have agreed that all the proceedings be proceeded together and the court may pronounce on the merits of the issue arising in the writ petitions as well. In the larger interest of all concerned, we accepted that suggestion for the reason we have already recorded earlier, without going into the technicalities of first formally allowing the applications for amendment and then of review and then proceed with the hearing of the writ petition on the main issue. At the cost of repetition, we may observe that we are proceeding on the assumption that the applicants in the respective applications (preferred for impleadment as petitioners), will have to be treated as petitioners in the respective petitions being similarly placed along with the writ petitioners. 10. Be that as it may, we shall straight way consider the core issue raised in the writ petition. The principal grievance of the writ petitioners is that, the original advertisement in no way even remotely suggest that the Advisory Committee may consider of fixing minimum marks after the entire process including oral interviews was completed as criterion for elimination of some of the eligible candidates even if they were to secure qualifying marks as notified in the advertisement. Moreover, neither the respondents are in a position to point out any rules or administrative instructions which authorises the Advisory Committee to suo-motu fix such minimum marks for resorting to elimination of otherwise successful candidates on the 14 basis that they have secured less than the specified minimum marks fixed after the selection process has already began. This is the main controversy which needs to be addressed. 11. It is common ground that the advertisement does not provide for such mechanism, nor the counsel for the respondents has been able to invite our attention to any of the rules or administrative instructions which would authorize the Advisory Committee to adopt such a course suo-motu. 12. Counsel for the respondents was, however, at pains to point out that there was good reason for the Advisory Committee to take that decision, as is reflected from the resolutions passed on 3rd October, 2004, 4th October, 2004 and 15th October, 2004 respectively. We have no reason to doubt the intention of the Advisory Committee in forming that opinion; Nor, is it isnecessary for us to examine the appropriateness of justification pointed out by the Advisory Committee in the respective resolutions. The moot question is: whether the Advisory Committee could have resorted to such mechanism on its own after the selection process had already begun. The answer is an empathetic 'NO'. That action of Advisory Committee can be upheld only if the respondents were able to point out some statutory rules or administrative instructions authorizing the Advisory Committee to resort to such mechanism. This position is no more res-integra. It is well established position that the Selection Committee on its own cannot prescribe minimum 15 qualification marks after the selection process had already commenced. If at all the Appointing Authority or the Selection Committee wanted to provide for such minimum qualification marks, that intention ought to have reflected in the advertisement - which was issued for inviting applications from the interested candidates, subject however that it was permissible in law. By no standard such qualification can be introduced posterior to advertisement or commencement of the selection process. More so, it is not open to the Advisory Committee to impose any such condition on its own, particularly in absence of authority flowing from statutory rules or some administrative instructions issued by the appropriate authority. 13. The counsel for the petitioners have justly pressed into service the exposition of Apex Court in Paragraph No.11 in the case of P. Mohanan Pillai vs. State of Kerala & ors reported in AIR 2007 SC 2840, which read thus:- “ 11. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed. The principle underlying the said exposition will apply to the fact situation of the present case. 14. The learned counsel for the respondents on the other 16 hand placed reliance on the decision in the case of K.H.Siraj vs. High Court of Kerala and others reported in (2006) 6 SCC 395. The dictum in the said decision is of no avail to the fact situation of the present case. For, in the present case the advertisement does not provide for such minimum qualification marks or the criteria of elimination of candidate who would secure less than 70 aggregate marks. As a matter of fact, the said decision cited across the bar by the counsel for the respondents refers to the judgment in the case of Umesh Chandra Shukla vs. Union of India reported in (1985) 3 SCC 721, wherein it is held that, “the Selection Committee had no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix”. 15. It is not necessary to multiply the authorities on the point which is well established. Thus understood, the only course open for us is to hold that the procedure adopted by the Advisory Committee of eliminating the candidates who had secured marks lower than 70 aggregate marks is illegal and untenable. Instead, the Advisory Committee ought to have recommended the names