1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PEITTION NO.4768 OF 2009 Durgadas s/o Vijaysingh Rajput and ten others .. PETITIONERS VERSUS The State of Maharashtra and others ..RESPONDENTS Mrs.S.D.Tambat (Dhumal), Advocate for petitioners Shri N.N.Jadhav, Assistant Govt.Pleader for respondent No.1 Shri H.T.Joshi, Advocate for respondent No.2 and 3 Shri P.M.Shah, Senior Counsel for respondents 4 and 5 Shri S.S.Choudhari, Advocate for intervenors -- WRIT PETITION NO.4992 OF 2009 Bapusaheb Dyanoba Gitte and another .. PETITIONERS VERSUS The State of Maharashtra and others .. RESPONDENTS Shri N.V.Gaware, Advocate for petitioners Shri N.N.Jadhav, Assistant Govt.Pleader for respondent No.1 Shri P.M.Shah, Senior Counsel with Shri G.K.Thigale, Advocate for respondents 2 to 4 -- 2 WRIT PETITION NO.5193 OF 2009 Pravin s/o Jaichandra Sawaji and five others .. PETITIONERS VERSUS The State of Maharashtra and others .. RESPONDENTS Shri V.D.Salunke, Advocate for petitioners Shri V.H.Dighe, Assistant Govt.Pleader for respondent No.1 Shri P.M.Shah Senior Counsel with Shri G.K.Thigale, Advocate for respondents 4 and 5 --- WRIT PETITION NO.5219 OF 2009 Deepak s/o Bhanudas Toge and anr. .. PETITIONERS VERSUS The State of Maharashtra and others .. RESPONDENTS Shri S.N.Pagare, Advocate for petitioners Shri N.N.Jadhav, Assistant Govt.Pleader for respondent No.1 Shri P.M.Shah, Senior Counsel with Shri G.K.Thigale, Advocate for respondents 3 and 4 AND WRIT PETITION NO.5040 OF 2009 Maharashtra Veej Shramik Kantrati Kamgar Sanghatana, through its Secretary Shri Santosh Sheshrao Rakh and another .. PETITIONERS VERSUS 3 The State of Maharashtra and others .. RESPONDENTS Shri N.N.Chitlange, Advocate holding for Shri M.D.Shinde, Advocate for petitioners Shri N.N.Jadhav, AGP for respondent No.1 Shri P.M.Shah, Senior Counsel with Shri G.K.Thigale, Advocate for respondent Nos.2 to 9 Shri H.T.Joshi, Advocate for respondent No.3 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 17th August 2009 ORDER ( Per P.V.Hardas, J.) 1. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for issuance of a writ of mandamus directing the respondents to modify, add, alter the Circular dated 15.7.2009 bearing No.157 and make the same applicable to the M.S.E.B. Company Ltd., Vide prayer clause (C), it is prayed for quashing and setting aside of the Circular bearing No.157 dated 15.7.2009. 2. In Writ Petition No.4992 of 2009, the petitioner have prayed for the following reliefs : (A) Call for record and proceedings of the case; (B) Hold and declare that the administrative circular No.157 dtd.15.7.2009 issued by the respondent No.2 and also the memorandum of understanding dtd. 12.6.2009 entered between the respondent No.5 and the management of MSETCL is illegal, arbitrary, violative of Art.14, 16 of the Constitution of India and hence liable to be quashed and set aside; 4 (C) Issue a writ of mandamus or any other appropriate writ, order or directions in the nature of writ of mandamus directing the respondent No.3 company to initiate and/or proceed with the process of recruitment to the posts of Asstt.Operators and Helpers (Jr.Technicians) on the basis of administrative circular No.99 dtd. 13.6.2008 issued by the respondent No.2 and for that purpose issue necessary orders; (D) Hold and declare that the entire process of recruitment to the posts of Asstt. Operators and Helpers (Jr.Technicians) undertaken by the respondent No.2 to 4 is illegal, arbitrary, violative of Art.14 and 16 of the Constitution of India, hence liable to be quashed and set aside and direct the respondent No.2 to 4 to denovo initiate the process of recruitment to the posts of Asstt. Operators and Helpers (Jr.Technicians) and for that purpose issue necessary orders. (E) Pending hearing and final disposal of this Writ Petition grant stay to the operation, execution and/or implementation of the administrative circular No.157 dtd. 15.7.2009 issued by the respondent No.2 and also to the memorandum of undertaking dtd. 12.6.2009 entered between the respondent No.5 and the management of MSETCL and for that purpose issue necessary orders; (F) Pending hearing and final disposal of this Writ Petition grant stay to the further process of recruitment to the posts of Asstt. Operators and Helpers (Jr.Technicians) undertaken by the respondent No.3 5 company and for that purpose issue necessary orders; (G) Grant ad-interim relief in terms of prayer clause “E” & “F”. (H) Pass such other further orders as this Hon’ble High Court may deem fit and proper in the peculiar facts and circumstances of the case. 3. In Writ Petition No.5193 of 2009, the petitioners have prayed for the following reliefs : (A) Record and proceedings of the case may kindly be called for; (B) To issue writ of certiorari or any other appropriate writ, order or directions in the like nature, the impugned administrative circular No.157 dated 15.7.2009 issued by the respondent No.2 may kindly be quashed and set aside; (C) To issue writ of mandamus or any other appropriate writ, order or directions in the like nature the respondent may kindly be directed to act upon the conditions of their own administrative circular No.79 dated 12.3.2008 and follow guidelines for recruitment; (D) Pending the hearing and final disposal of this writ petition effect, execution and operation of the administrative Circular No.157 dated 15.7.2009 issued by the respondent No.2 may kindly be stayed directing the respondents not to give benefits of 10% weightage for appointment of any employee in all 7 zones of the respondent No.3; 6 (E) Ad interim relief in terms of prayer clause “D” may please be granted; (F) Any other just and equitable relief to which the petitioner found entitled be granted. 4. In Writ Petition No.5219 of 2009, the petitioners have prayed for the following reliefs : (A) This writ petition may kindly be allowed; (B) By issuing writ of mandamus or any other writ, rder or directions in the like nature, the respondents be directed to modify, alter the circular dated 15.7.2009 bearing No.157 and made applicable to the M.S.E.D.Co.Ltd., (C) The direction to the respondents may kindly be issued to extend the benefit of administrative circular bearing No.157 dated 15.7.2009 to the petitioners and to the candidates who have completed apprenticeship with the respondents 2 and 3; (D) The Circular dated 15.7.2009 bearing No.157 may kindly be quashed and set aside; (E) Pending hearing and final disposal of this writ petition, the selection process in the matter of recruitment of Assistant of Assistant Operators and Helpers (Junior Technician) may kindly be stayed; 7 (F) Pending hearing and final disposal of this writ petition, if the selection process is started the same may kindly be subjected to the final decision of this writ petition; (G) Ad-interim orders in terms of prayer clauses “E” & “F” be kindly granted; (H) Costs of the petition be kindly granted to the petitioners; (I) Grant any other just and equitable relief as deemed fit and proper by this Hon’ble Court in the facts and circumstances of the case to the petitioner in the interest of justice. 5. On 6.5.2005, the Maharashtra State Electricity Board, hereinafter referred to as MSEB came to be reorganised and it came to be divided into four separate companies. The M.S.E.B. came to be reorganised in the following companies: (i) The Maharashtra State Electricity Holding Company Limited; (ii) The Maharashtra State Electricity Distribution Company Limited (MSEDCL); (iii) The Maharashtra State Power Generation Company Limited (MSPGCL); (iv) The Maharashtra State Electricity Transmission Company Limited (MSETCL); 6. It appears that the recruitment to the post of Assistant Operator and Helper was governed by a Circular No.79 dated 12.3.2008. 8 As per this Circular which had been issued in exercise of the powers delegated under the erstwhile M.S.E.B. Circule No.341 dated 8.2.2000 read with M.S.E.T.C.L. administrative Circular No.3 dated 24.11.2005, the Managing Director in consultation with the Director (Operations) and Executive Director (H.R.) had accorded approval. This Circular was in respect of revised prerequisite and method in filling-in the vacancies of the post of Assistant Operator in Technical cadre appearing in Schedule A-1 of the MSEB Classification & Recruitment Regulations at Sr.No.22 under Technical Pay Gr.III as under : SR NO DESIGNA - TION QUALIFI- CATION EXPERIE NCE AGE LIMIT METHOD OF FILLING VACANCY REMARKS Asstt.Oper ator National Trade Certificate i.e. ITI in Electrician Trade AND National Apprenticeship Certificate in Electrician Trade awarded by the National Council for Training in Vocational Trade (NCTVT). New Delhi on completion of National Apprenticeship under the Apprenticeship Act, 1961 in MSEB/MSETCL Completion of minimum 2 years Apprentice -ship after ITI in the MSEB/MSE TCL The upper age limit shall be 30 years. Relaxable by 5 years in case of backward class candidates. By open advertise- ment calling applications from apprentices. Selection Process The applications received will be scrutinized and arranged in order of merit of the marks obtained in the ITI course and in the examination conducted by the NCTVT after completion of apprenticeshi p under Apprenticeshi p Act, 1961. The marks obtained in ITI course and NCTVT examination will be aggregated 9 and the same will be converted into 90 marks. After arranging the list in desending order of merit, the candidates as per merit and taking into account reservation etc. will be called for personal interview before the C.S.C. as prescribed under the MSEB Employees’ Service Regulations. The personal interview will be of 50 marks and the same will be converted into 10 marks. The final list will be drawn by adding marks of ITI + NCTVT (converted into 90 marks) + 10 marks of personal interview. As per this Circular which we may for the sake of convenience referrred to as the first Circular which was in respect of appointment to the post of Assistant Operator provided the qualification of passing of the National trade certificate i.e. ITI in Electrician trade and National Apprenticeship certificate in Electrician trade awarded by the National Council for Training in Vocational Trade (NCTVT), hereinafter 10 referred to as “NCTVT” for the sake of brevity. The recruitment to the said post was restricted only to those apprentices who had done their apprenticeship under the Apprenticeship Act, 1961 in MSEB/MSETCL. 7. It appears that another Circular came to be issued i.e. Circular No.99 dated 13.6.2008 in respect of filling-in the vacancies of Pay Grade III and IV categories under direct recruitment. As per Annexure ”A” which was an accompaniment to the Circular No.99, hereinafter referred to as a “second Circular” for the sake of brevity which modified the first Circular to the extent which is indicated below : Annexure-’A’ Accompaniment to Adm.Circular No.99 Dt.13.6.2008 (5) In partial modification of instructions notified under Adm.Circular No.79 dt.12.3.08, the qualification for Asstt.Operator shall be National Trade Certirficate i.e. ITI in Electrician Trade Certificate i.e. ITI in Electrician Trade and National Apprenticeship Certificate in the Electrician Trade awarded by the National Council for Training in Vocational Trade (NCTVT), New Delhi on completion of apprenticeship under the Apprenticeship Act, 1961 (The condition of completion of apprenticeship in MSEB/MSETCL is deleted). (6) ...... (7) Likewise, for recruitment to the post of Helpers, the percentage of marks obtained in ITI examination will be calculated and in case of candidates who have passed examination conducted by the NCTVT after completion of apprenticeship under Apprenticeship Act, 1961, the 11 weightage of 10 marks in the percentage of ITI marks shall be added. After adding 10 marks in the percentage of ITI marks, a list of candidates shall be arranged in a descending order. The selection will be done on the basis of percentage of marks in ITI plus weightage of 10 marks given to apprentices keeping in view the reservation for backward classes etc. Other reservations like PAPs, PHPs, Women, etc. shall also be followed. No personal interview shall beheld. While drawing select list, the following principles shall be followed : (i) Where MSEB/MSETCL apprentice and outside apprentice obtained equal marks, the MSEB/MSETCL apprentice candidate shall have precedence over outside apprentice. (ii) Where other candidates obtained equal marks (equal percentage), the older shall precedence over the younger. Thus by virtue of Clause (5) of Annexure ”A”, the condition that the apprentices should have done their apprenticeship in MSEB/MSETCL came to be deleted. Thus, for the recruitment of the post of Assistant Operator doors were open wide and the restriction as was stated in the first Circular came to be removed. Likewise, for the recruitment of the post of Helpers, it was necessary that the candidate should have passed the ITI examination and the examination conducted by NCTVT plus completion of apprenticeship under the Apprenticeship Act, 1961. Clause (7) provided for grant of weightage of 10 marks in the 12 percentage of the ITI marks while drawing the merit list. Clause (7) further contemplates that in case the candidates who had done their apprenticeship in the MSEB/MSETCL and the outside apprentices have obtained equal marks the MSEB/MSETCL would be given preference. Clause (7) (ii) further stipulated that in case of candidates obtaining equal marks (equal percentage) the person older in age would be preferred over the candidate younger in age. It appears that the above modification impelled certain aggrieved to file Writ Petition No.5584 of 2008 in this Court. It appears that the Division Bench of this Court issued notices and while issuing the notices had permitted the respondents to proceed with the recruitment process but restrained the respondents from issuing any appointment orders. The reliefs which were sought for by the petitioners in the said petition were for issuance of directions to the respondents to give preference to the apprentices who had completed their apprenticeship with the respondent-company in the process of recruitment of Assistant Operator and Helper. The petitioners also prayed for directing the respondents to act on the basis of their Administrative Circular No.79 dated 12.3.2008 i.e. the first Circular. The petitioners therein also prayed for directing the respondents to condone the age gap which had occurred due to the ban on the process of recruitment issued by the Government and allow the candidates to apply for recruitment after the condonation of age gap. It appears that this is how petition remained pending for quite some time and thereafter a memorandum of understanding came to be submitted before the Court on 13 16.6.2009. We may at this juncture usefully reproduce the memorandum of understanding : MEMORANDUM OF UNDERSTANDING “The selection process of recruitment to the post of Assistant Operators and Helpers (Junior Technicians) has been challenged before the Hon.High Court, Mumbai, Bench Aurangabad by the Maharashtra Rajya Apprentice Kriti Samittee and the M.S.Electricity Workers Federation vide Writ Petition No.5584/08 & no. 212/09. Considering the importance of the issue and urgency of recruiting the technical personnel in this most vital service industry, the petitioners persistently requested the management to consider the realistic demand of the petitioner in the interest of organization and departmental apprentices. The management also reciprocated to the request and protracted discussions were held with the management and it is decided to make the efforts to resolve the issue by out of court settlement. Accordingly, issue involved has been resolved by bi-partiet discussions today i.e. on 12.06.2009 as follows : 1. To give weightage by way of 10% marks on the marks obtained by the candidates in the ITI examination to those candidates who have completed apprenticeship in MSEB/MSETCL for the post of Assistant Operator and Helper (Junior Technician). 14 2. To withdraw all the petitions before the Hon. High Court, Mumbai Bench Aurangabad. With the above MOU, the issue stands settled amicably” 8. By virtue of this memorandum of understanding, the respondents agreed to give weightage by way of 10% marks on the marks obtained by the candidates in the ITI examination in respect of those candidates who had completed apprenticeship in the MSEB/MSETCL for the post of Assistant Operator and Helper (Junior Technician). Incidentally, the petitioners agreed to withdraw the said petition. Accordingly, on 17.6.2009, the copy of the memorandum of understanding came to be produced before the Division Bench of this Court to which one of us, P.V. Hardas was a member. The Division Bench by its order dated 17.6.2009 took the memorandum of understanding on record at Exhibit “A” and permitted the petitioners to withdraw the writ petition as the petitioners did not wish to prosecute the petition any further. Consequent to the withdrawal of the said petition, Administrative Circular No.157 dated 15.7.2009, i.e. the third Circular came to be issued. The third Circular and its annexures incorporated the recitals of the memorandum of understanding. 15 9. Meanwhile, it appears that an advertisement had been issued inviting applications for the post of Assistant Operator/Helper. The aforesaid advertisement had been issued some time in August 2008. However, the process of recruitment had come to a standstill in the light of the filing of the petition and the interim order passed thereon. After issuance of the third Circular, the process of recruitment as per the advertisement commenced. Issuance of the third Circular has triggered the filing of these petitions. The principal ground which is urged by the petitioners before us is that the third Circular creates an unreasonable classification between those apprentices who had done their apprenticeship in MSEB/MSETCL and the other companies of MSEB. According to the petitioners, therefore, the aforesaid Circular i.e. the third Circular is liable to be struck down as the same is unreasonable and discriminatory. It is also urged before us by the learned Counsel for the petitioners that the Circular has been issued during the pendency of the recruitment process and, therefore, the respondents are attempting to change the rules of the game after the play has commenced. It is also urged before us that though the four companies are separate identities, yet they are managed by the MSEB holding company with a common Board and, therefore, an artificial discrimination is made between the MSEB/MSETCL and other companies of the MSEB. It is urged before us that the respondents are indulged in hostile discrimination and there is no nexus in modifying the second Circular by the issuance of third Circular.It 16 is also urged before us that the modifications max of arbitrariness and is unreasonable. 10. On notice of these petitions being issued to the respondents, respondent MSETCL has filed affidavit-in-reply. In the affidavit-in-reply, the respondents contend that the respondents have issued the Administrative Circular No.157 i.e. the third Circular with a view to give weightage/preference to the candidates who had completed apprenticeship in MSEB/MSETCL. The respondents further contend that after reconstructing of the erstwhile M.S.E.B. i.e. MSEDCL, MSPGCL and MSETCL came into existence and all the three companies are functioning independently and the recruitment rules and process of all the three companies is also separate and are working independently. It is also urged before us that MSPGCL has issued an advertisement in which they have given preference to the candidates who had done apprenticeship in their company. It is also urged before us that since the companies are different and are companies duly registered under the Companies Act and are the separate legal entities, the petitioners can not claim that they are discriminated as they do not stand on the same footing as the apprentices who have done their apprenticeship in MSEB/MSETCL. It is stated that the apprentices working in the other companies cannot claim that a writ of mandamus be issued to the respondent-company directing them to grant weightage of 10% to the apprentices of the other company on the ground that they are discriminated. There is no classification much less any unreasonable classification in the granting of the weightage of 17 10%. The MSETCL would be always be entitled to give preference to the apprentices who had completed their apprenticeship in their company. However, it is stated that by modifying the first Circular which in terms had restricted the recruitment to the post of Assistant Operator only to those apprentices who had done their apprenticeship in MSEB/MSETCL, by issuance of third Circular the apprentices of other companies also are given an opportunity of seeking employment. Thus, there is no denial of any opportunity much less any hostile treatment or discrimination being meted out to them. 11. The learned Counsel for the petitioners have placed reliance on the Judgment of the Division Bench of this Court in Dr.Archan Marian D’Mello Versus The Dean, Goa Central College, Bambolim & others, 1999(3) Bom.C.R.669. In this case, the Division Bench had struck down the giving of weightage of 1% to 5% marks which had been given to senior students who had passed from the institute prior to starting of M.D.S. course on the ground that there is no rational basis for this classification. By the order impugned in the reported Judgment, an artificial classification and unreasonable classification was done between the students of the same institute who had passed their course prior to starting of M.D.S. course and the students who had passed their course after the introduction of M.D.S. course. In that light of the fact, therefore, the Division Bench questioned the giving of weightage of 1% to 5% to the senior students. The aforesaid judgment, in our considered opinion, is 18 not applicable to the facts of the present case. Similarly, the learned Counsel for the petitioners have placed reliance on the judgment of Supreme Court in Madan Mohan Sharma & Anr. v. State of Rajasthan & Ors., 2008 AIR SCW 1850 to advance the proposition that once the advertisement for the appointment was issued change in the eligibility criteria during selection process was not permissible. Reliance is also placed on the judgment of the Division Bench of this Court in Dipti Dipak Kolapkar Versus Maharashtra Public Service Commission & anr. 2009 (4) Bom.C.R.59. 12. Reference in this behalf may also be made to the judgment of State of Himachal Pradesh and another vs. Anjana Devi and others, (2009) 5 SCC 108. In the said judgment, the Supreme Court has held that discrimination presupposes classification of similarly situated persons into different groups, without any reasonable basis, for extending dissimilar benefits or treatment. According to us, the ratio of this judgment squarely answers the issue raised in these petitions in respect of discrimination. 13. As pointed out by us above, the petitioners and the apprentices who have done their apprenticeship in MSEB/MSCTCL do not form one group. They are apprentices who have done their apprenticeship in different companies. The companies, registered under the Companies Act and are legal and separate entities. The petitioners 19 and the apprentices of the respondent-company are not similarly situated persons and have not been divided into different groups for the purposes of grant of 10% weightage. Therefore, the respondents by issuance of the Circular which is the third Circulare are not extending dissimilar benefits or treatment nor are they denying any similar treatment to the petitioners. As pointed out by us above, the petitioners do not constitute the same group as that of the apprentices of the respondent-company. Therefore, in our opinion, there is no discrimination much less any hostile discrimination in the grant of 10% weightage, to the apprentices who have done their apprenticeship in the respondent-company. Similarly, the ratio laid down in U.P. State Mineral Development Corporation Ltd., and another etc., v. Vijay Kumar Upadhyay and another etc., AIR 1997 SC 1778 would not apply to the facts of the present case. In the reported judgment, the retrentchment order of the ad-hoc appointees had been set aside and their regularisation was ordered. The aforesaid order had became final and, therefore, the persons senior to those who derived the benefit of the said order were also entitled to benefit of regularisation. As pointed out by us above, the ratio of the said judgment is inapplicable to the facts of the present case. 14. By the issuance of the third Circular the respondents have not altered any of the eligibility criteria to the disadvantage of the petitioners. Eligibility criteria remains unaltered so also the educational qualification prescribed in the advertisement. In fact, no terms of the 20 advertisement have been altered. All that the respondents have done by issuance of the Circular is to grant 10% weightage in the marks secured by the