1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No.6153 of 2006 ( R.R. Dhoke .vs. Shiksha Mandal and ors. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders ======================================= .......... CORAM : A.P. LAVANDE & P.D. KODE, JJ. DATED : MARCH 24, 2009 Heard Mr. P.D. Meghe, learned Advocate for the petitioner, Mr. A.C. Dharmadhikari, learned Advocate for respondents no.1 and 2 and Mr. Anand Parchure, learned Advocate for respondent no.4. None appears on behalf of respondent no.3 though served. The petitioner has been serving as Laboratory Attendant in respondent no.2 Institute run by respondent no.1. Respondents no.1 and 2 issued advertisement dated 9.8.2006 in daily Lokmat inviting applications for the post of Laboratory Assistant. Pursuant to the advertisement, interviews were held and respondent no.4 was selected and appointed as Laboratory Assistant. The petitioner who also appeared pursuant to the said advertisement, challenges the appointment of respondent no.4 on the ground that in the interview held, the Committee awarded 30 % marks for viva voce test. 2 According to the learned counsel for the petitioner this is contrary to the judgment of the Apex Court in Mohinder Sain Garg .vs. State of Punjab - (1991) 1 SCC 662 in which the Apex Court has held that the allotment of marks for viva voce test should not be more than 15 %. According to the learned counsel for the petitioner since 30 % marks were fixed for viva voce test, the selection of respondent no.4 as Laboratory Assistant is vitiated. Per contra Mr. Dharmadhikari and Mr. Parchure, learned counsel appearing on behalf of respondents No.1,2 and 4 have invited our attention to the Annexure which was submitted along with the application form laying down the eligibility criteria and more particularly Clause (6) thereof which prescribes the age limit of 33 years to be eligible to be appointed for the posts of Lecturer and Laboratory Assistant. According to the learned counsel on his own showing the petitioner was aged 36 years in the year 2006 as is evident from the cause title of the petition and, therefore, the petitioner himself was not eligible to be appointed to the said post. The learned counsel, therefore, submitted that the petition, therefore, deserved to be dismissed. In reply, Mr. Meghe, learned counsel for the petitioner submitted that since the petitioner was called for the interview, the respondents are not entitled to urge now that the petitioner could not have been considered for the post of Laboratory Assistant on account of age-bar. Having heard the learned counsel for the parties 3 and having perused the record, we are of the considered opinion that there is no merit in the present petition. No doubt the Apex Court in the case of Mohinder Sain Garg cited supra has held that for viva voce test the marks should not exceed 15 % but the fact remains that the petitioner himself was not eligible to be appointed to the post of Laboratory Assistant since he had already crossed the maximum age of 33 years prescribed for being eligible to the post of Laboratory Assistant. Merely because the petitioner was serving as Laboratory Attendant in respondent no.2 Institute, that by itself would not make him eligible to be appointed as Laboratory Assistant for which the maximum age is 33 years. Since the petitioner himself was not eligible to be appointed to the post of Laboratory Assistant, mere fact that he was called for the interview by respondents no.1 and 2 would not entitle the petitioner to get any relief from this Court. We are not inclined to quash the appointment of respondent no.4 at the instance of the petitioner who himself was not eligible to be appointed on the said post. In view of above, we find no merit in the present petition and hence the same is rejected with no order as to costs. JUDGE JUDGE halwai 4