1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4211 OF 1994. Babasaheb S/o Raghunath Mundhe, Age 30 years, Occ.Service, R/o Uplai, Taluka Kallamb, Dist. Osmanabad, at present residing at Osmanabad for the purporse of service. ... Petitioner. Versus 1. The Regional Selection Board, Aurangabad, Region Aurangabad, Safalya Building, Behind RTO Office, Padampura, Aurangabad. 2. The Zilla Parishad, Osmanabad, Taluka and Dist. Osmanabad, through it's Chief Executive Officer. 3. The Secretary, Chief Accountants and Finance Officer, Zilla Parishad, Osmanabad, Taluka and Dist. Osmanabad. 4. Dnyaneshwar Vasantrao Sool, Age major, Occ.R/o at & Post Ambejawalge, Tq. & and Dist. Osmanabad. 5. The State of Maharashtra. ... Respondents. 2 Mr.S.S.Jadhavar, advocate for the petitioner. Mr.V.D.Rakh, Asstt.Govt. Pleader for the State. Mr.K.J.Ghute Patil, advocate for the Respondent Nos.2 and 3. Mr.P.R.Patil, advocate for the Respondent No.4. ... CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 21.07.2010. ORAL JUDGMENT (Per B.R.Gavai,J.) 1. The petitioner challenges the selection of Respondent No.4 to the post of Junior Accounts Officer. The Respondent No.1 had advertised for various posts in Marathwada region. One of such post was Junior Accounts Officer in Zilla Parishad, Osmanabad. The preamble of the said advertisement provided that for the posts advertised, a candidate should possess requisite qualification on the last date of submitting application. The column regarding applications and specifically para 5 of the said column would undoubtedly provide that last date for submitting the application is 25th September 1992. The post in question is at Sr.No.99. The true translation 3 thereof is as under :- "99) Junior Accounts Officer (for Waiting List) Total Posts - 3, Scheduled Caste -1, Scheduled Tribe -1, V.J.N.T. -1, Pay Scale Rs.1400 -2600, Qualification - Degree of recognised University and must have five years' experience of continuous service in any Government Office, Trading Partnership Firm or Local Authority. Degree in Commerce having Accountancy and Auditing as special subjects or preference will be given to the degree holder having first class or second class or preference will be given to post graduates having main subjects of Mathematics or Statistics or Accountancy and Auditing or having working experience of accountancy in any Government Office or Trading firm or Local Authority. Age : 18 to 30 if not in Zilla Parishad Service." 4 It appears that in accordance with the said advertisement, both the petitioners as well as Respondent No.4 applied. The Respondent No.4 was selected. Being aggrieved thereby the present petition. While granting Rule, this Court had also granted liberty to the Respondent Zilla Parishad to consider claim of the petitioner as against vacancy if any available. It is not disputed that petitioner has accordingly been promoted with effect from 22.3.1999. The Respondent No.4 has been appointed as Junior Accounts Officer with effect from 20.8.1994. 2. Mr.Jadhavar, learned counsel appearing on behalf of the petitioner submits that though the Respondent No.4 was not qualified to be appointed on the post in question, the Respondents have illegally appointed him and as such the appointment of the Respondent NO.4 is liable to be quashed and set aside. It is submitted that as on the relevant date, the petitioner was qualified person, the petitioner ought to have been appointed instead of the Respondent No.4. 5 3. Mr.Ghute Patil, and Mr. P.R.Patil, learned counsels on the contrary submit that since the petitioner was possessing qualification on the date on which he was interviewed, he was entitled for preference over the petitioner. It is further submitted that reading of clause 99 which prescribes qualification would show that if a person holds qualification of M.Com, it is not necessary for him to have the experience of five (5) years. Mr.Patil, further submits that perusal of the Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967 would reveal that the Respondent No.4 is duly qualified for the said post. 4. Perusal of the advertisement and specifically clause 99 reproduced herein would reveal that for the person to be considered eligible for the post in question, it is mandatory that a person should have a degree of recognised University and an experience of minimum of five (5) years working in any Government Office, Commercial Office, Partnership establishment or any Local Authority. Only 6 preference is given to a person who has passed a B.Com. degree with specialisation in accounts and audit or a candidate who has passed a degree by specialisation in Mathematics or statistics or if a person has acquired a post graduate degree in Second Class in accounts and audit. 5. The said advertisement would thus clearly show that for being considered for the post in question, the mandatory requirement is that the candidate must have a bachelor degree of any recognised University and he must have five (5) years experience working in any Government Commercial Establishment, Partnership firm or the Local Authority. If person possesses the rest of the qualifications, he shall be given preference for appointment. However, to read that if a candidate who possesses any of the additional qualifications then the requirement of experience shall stand waived, would be doing complete violence to the plain language used in the said advertisement. We are of the considered view that the reading of advertisement would lead to no other conclusion but that an experience of 7 five (5) years working with the establishment is a mandatory condition for being considered for the said post. In that view of the matter let us examine as to whether the Respondent No.4 at the relevant time was qualified or not. The Respondent No.5 has passed the B.Com. examination in the year 1990. He has acquired the M.Com. degree in February 1993. Even according to the Respondent Zilla Parishad, he did not possess the requisite experience on the date of his application. The last date for filing application was 25.9.1990. The only point urged by Zilla Parishad is that since he has acquired M.Com. degree, the requirement of experience was not necessary. As already discussed hereinabove, the said contention is without substance. We are of the considered view that since the Respondent No.5 was not possessing requisite experience, he could not have been considered for the post. As such the appointment of the petitioner will have to be held as illegal. In so far as the petitioner is concerned, the petitioner was already in service right from 1985. He also possessed the qualification of B.Com. with 8 specialisation of audit and accounts. As such apart from the fact that he was eligible he was also entitled for preference. Even if the contention of the Respondents that the Respondent No.4 was eligible to be considered for the post since he possess the M.Com.degree is to be accepted, even then the Respondent NO.4 would not be qualified inasmuch as the last date of submitting the application is 25.9.1992, whereas the Respondent No.4 has acquired M.Com. qualification in 1993. 6. Though we hold that the appointment of Respondent No.4 was wholly illegal and dehorse the requirement in the advertisement, since the Respondent No.5 has already been working since 20.8.1994, if his appointment is set aside, he will come on road since by now he must have crossed upper age limit. In that view of the matter only on account of equity, we are not inclined to set aside the order of appointment. The petition is, therefore, allowed by directing the Respondents to give deemed date of seniority to the petitioner in the cadre of Junior Accounts 9 Officer from 20.8.1994. Needless to state that the petitioner would be shown senior to the Respondent No.4 in the seniority list and all consequential benefits would be given to him including future promotions. This exercise along with payment of all arrears to the petitioner shall be completed within a period of three months from today. 7. We are of the considered view that the Zilla Parishad had totally erred in considering the petitioner for the post in question and that the Respondent No.5 was not at all qualified to be appointed. We are, therefore, inclined to allow the petition with costs which are quantified at Rs.25,000/- (Rupees twenty five thousand) to be payable by the Respondent No.4 to the petitioner. 8. At this juncture, Mr.Jadhavar, learned counsel appearing on behalf of the petitioner graciously states that the costs instead of being paid to the petitioner be paid to the High Court Bar Library, Aurangabad. In that view of the 10 matter, the Respondent No.4 shall deposit the costs within a period of four (4) weeks from today with the Secretary, High Court Bar Association. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp421194