(1) WP234-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 234 OF 2009 1. Baban s/o Popat Sonawane, R/o at Dharagir, Tq. Erandol, District Jalgaon. 2. Ku. Mangalabai Prakash Pagare, R/o At Kalyane Shel, Tq. Dharangaon, Dist. Jalgaon. 3. Dinesh Vishwas Patil, R/o at Gangapuri, Tq. Dharangaon, District Jalgaon. 4. Yogesh Santosh Patil, R/o Kalyane Hol Tq. Dharangaon, District Jalgaon. PETITIONERS VERSUS 1. The State of Maharashtra through the Secretary, Ministry of Agriculture, Mantralaya, Mumbai. 2. The District Deputy Registrar, Jalgaon, District Jalgaon. 3. Agricultural Produce Market Committee, Dharangaon, Tq. Dharangaon, Dist. Jalgaon, through its Secretary. 4. Anil s/o Namdeo Patil, R/o Satkhede, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 5. Gorakh s/o Pratap Bansi, R/o Sant Rohidas Wada, Dharangaon, Tq. Dharangaon, District Jalgaon. 6. Milind s/o Narayan Dabhade, R/o Pardhiwada, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 7. Pravin s/o Kishor Kanraware, R/o Dhangar Galli, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. (2) WP234-09 8. Manohar s/o Supadu Patil, R/o At Post Bhate, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 9. Dnyaneshwar s/o Rava Mahajan, R/o Motha Maliwada, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 10. Sudhakar s/o Hansaraj Patil, R/o Sambhaji Nagar, Pachora, Tal. Pachora, Dist. Jalgaon. 11. Dhananjay s/o Ghyansham Khairnar, R/o Gandhipura, Erandol, Tq. Erandol, Dist. Jalgaon. 12. Vasudeo s/o Lotan Bhagwat, R/o Landge Galli, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 13. Girish s/o Suraji Borse, R/o Behind Rahdari Bangla, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 14. Rupesh s/o Jagannath Pawar, R/o Chintaman Colony, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. 15. Gulab s/o Gambhir Chaudhari, R/o Marathe Galli, Dharangaon, Tq. Dharangaon, Dist. Jalgaon. RESPONDENTS ..... Mr. A.P. Bhandari, advocate for the petitioners. Mr. S.V. Kurundkar, Additional Govt. Pleader for the Respondent-State. Mr. V.D. Hon, advocate for the respondent No. 3. Mr. A.D. Shinde, advocate for the respondent Nos. 4 to 15. ..... CORAM : SMT. NISHITA MHATRE & M.T. JOSHI, JJ. DATE OF JUDGEMENT RESERVED : 22nd JULY, 2011 DATE OF JUDGEMENT PRONOUNCED : 4th AUGUST, 2011 (3) WP234-09 JUDGEMENT (PER : M.T. JOSHI, J.) : 1. Rule. Rule made returnable forthwith by consent of learned counsel for the parties. 2. The present petitioners are challenging the selection process and consequential appointments of the respondent Nos. 4 to 15 made by the respondent No. 3 - Agriculture Produce Market Committee of Dharangaon on its establishment in the various posts of Clerk, Peon, Driver and Computer Operator. 3. The respondent No. 3 had issued an advertisement for the posts. The selection process consisted of only oral interview of 170 candidates conducted within two days only i.e. on 13th September, 2008 and 14th September, 2008. Since the complaints were made to the respondent No. 2 - District Deputy Registrar regarding the alleged arbitrariness in the entire selection process, an enquiry was initiated by the respondent No.2. In the complaints, the names of probable candidates to be selected were given. It is alleged that when the tenure of the existing Committee of the respondent No. 3 - Agriculture Produce Market Committee (for (4) WP234-09 short, "A.P.M.C.") was to come to an end, the entire process of recruitment was undertaken and the selection process was concluded within two days and though the enquiry was initiated, the concerned respondents were posted during the pendency of the petition subject to the approval from the respondent No. 2 and for a period of only six months. Various allegations that the persons being eligible even from the Social as well as Special reservations have been ignored and an impossible task of holding oral interviews in short span are made. It is further alleged that though the Committee constituted by the respondent No. 3 for the purposes of carrying the process had resolved to call the experts in the concerned field, yet, the same was ignored. Further, though the advertisement was issued for recruitment of ten posts, two candidates were selected beyond the number of posts advertised and that too merely by a resolution on certain extraneous grounds. It was thus a backdoor entry and in view of these facts, the petitioners, who had also applied for the appointment to the posts, have prayed that the selection process be quashed and set aside. (5) WP234-09 4. On behalf of the respondent No.3 - A.P.M.C., a preliminary objection was raised that the respondent No. 3 - A.P.M.C. is not a State and, therefore, the services on its establishment would not be a Public Employment. Further, there is no rule that the candidates cannot be selected solely on the basis of oral interview. It was further submitted that the posts of Clerk, Peon, Driver, except the Computer Operator can be filled in without the aid of an Expert and without any written test. It was further submitted that earlier, a writ petition was filed by one of the office bearers of the respondent No. 3 - A.P.M.C. who had also made a complaint to the respondent No. 2 - District Deputy Registrar. The said writ petition is dismissed. However, on the basis of the same complaint, sent to the respondent No. 2, the present petition is filed by the petitioners. Lastly, it was contended that all the petitioners have participated in the selection process and, therefore, they are estopped from challenging the said process. (6) WP234-09 5. In answer to the preliminary objection of maintainability of the petition, Mr. A.P. Bhandari, learned counsel for the petitioners, has relied on the provisions of Section 12 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (for short, "the APMC Act"). The provisions of sub-section (2) of section 12 of the APMC Act runs as under : "12. Incorporation of Market Committees. (1) **** (2) Notwithstanding anything contained in any law for the time being in force, every Market Committee shall, for all purposes, be deemed to be a local authority." It is thus clear that the respondent No. 3 - A.P.M.C. is a "Deemed Local Authority" for all the purposes and, therefore, any employment under it would be a Public Employment, recruitment to which would be amenable to the writ jurisdiction of this Court. 6. It was pointed out by the learned counsel for the petitioners that difference between the allocation of marks to the selected candidates and (7) WP234-09 the marks allocated to the unsuccessful candidates is more than twenty marks. 7. It is now well established principle of law that even mere higher allocation of marks for viva- voce in the selection process may attract the vice of arbitrariness and the selection process can be quashed being discriminatory. 8. In the case of "Ashok Kumar Yadav and others v. State of Haryana and others" AIR 1987 S.C. 454, the Supreme Court has found the allocation of 22.2% of the total marks for oral interview as quite high as it would consequently tend to become a determining factor in the process of selection. It was observed that it may tilt the scales in favour of one candidate or the other according to the marks awarded to him in the viva-voce test. In the circumstances, the act of allocation of 22.2% of marks for the viva- voce was found as arbitrary and discriminatory. 9. In the case of "Mohinder Sain Garg and others v. State of Punjab" 1991 (1) SCC 662, the Supreme Court found that 25% marks reserved for viva- (8) WP234-09 voce for the Excise and Taxation Inspectors' recruitment was arbitrary. It was further observed that for viva-voce, not more than 15% of marks should be reserved for Public Employment by direct recruitment. In the case of "Shri Ashok alias Somanna Gowda and another v. State of Karnataka and others" AIR 1992 S.C. 80, the allotment of 33.3% of total marks for interview for the posts of Assistant Engineer was declared to be unjustified. 10. As against the catena of case-law relied upon by the learned counsel for the petitioner, Mr. Hon, learned counsel for the respondent No. 3 - A.P.M.C. relied on "Mangal Shridhar Patil v. State of Maharashtra & others" 2004 (1) ALL MR 532. In that case, there was no issue of percentage of marks to be allotted for viva-voce but only question was as to whether the interview procedure going on beyond midnight can be called as suspicious or doubtful process. This Court in that case has held that this itself cannot be called as a suspicious circumstance. However, 100% allocation of marks solely for the interview cannot be justified merely because the (9) WP234-09 posts were of Clerk, Peon, Computer Operator or Driver. It cannot be gainsaid that allocation of such sweeping percentage of marks for oral interview can certainly have an effect of tilting the scale in favour of or against any of the candidates. The petitioners have filed a copy of the complaint made to the respondent No. 2 - District Deputy Registrar on 12-09-2008 i.e. before the select list was published. In the said complaint, it was alleged that the 25 candidates named therein are most likely to be selected being the candidates of the office bearers of the respondent No. 3 - A.P.M.C. It is worth noting that out of those 25 candidates, nine candidates (out of ten selected candidates) find their names in the published select list. 11. In this view of the matter, the exercise undertaken by the respondent No. 3 - A.P.M.C. to select the candidates solely by applying the criterion of oral interview cannot be upheld. Further, it is an admitted fact that though the Sub- Committee has resolved to call the experts for participation in the interview process, the said (10) WP234-09 resolution was not acted upon by the very same Sub- Committee i.e. the Committee constituted for selection process. 12. This takes us to deal with the issue of estoppel against the petitioners. The advertisement showed that the interviews of the candidates were to be held. Accordingly, the petitioners had participated in the said selection process and thereafter, they had filed the present writ petition. In the circumstances, Mr. Hon, learned counsel for the respondent No. 3 submitted that now it cannot lie in the mouth of the petitioners to state that the selection process was arbitrary or defective. He relied on "Dhananjay Mailk and others v. State of Uttaranchal and others" 2008 AIR SCW 2158 = AIR 2008 SC 1913. In that case, the petitioners had participated in the process fully knowing that the educational qualification for the post of Assistant Teacher (Physical Education) was required to be B.P.E. or Graduate with Diploma in Physical Education. They were unsuccessful in the process of selection and, therefore, it was held that they were (11) WP234-09 estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules. In that case, reliance was also placed on "Madan Lal vs.State of J and K" (1995) 3 SCC 486 wherein it was held that if a candidate appears at the oral interview, then, only because of the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair. 13. On the other hand, Mr. Bhandari, learned counsel for the petitioners, relied on the case of "Rajkumar and others v. Shakti Raj and others" AIR 1997 S.C. 2110 wherein the ratio in the case of "Madan Lal vs.State of J and K" (supra) was also pressed into service by the appellants. In the selection process impugned in that case, for the posts of Canal Patwaris under the Punjab Public Works Department (Irrigation Branch) Patwaris State Service Class III Rules, 1955, the selection process was undertaken in the year 1992. However, the examination was conducted as per earlier Rules of 1955. It (12) WP234-09 had an effect of entire process being against the Rules as were prevailing in the year 1992. In this set of facts, the Supreme Court made the following observations : "16. Yet another circumstance is that the Government had not taken out the post from the purview of the Board, but after the examinations were conducted under the 1955 Rule and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the post were taken out from the purview thereof. thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal vs. State of & K [(1995) 3 SCC 486] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the selection Board or the method of Selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, So also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case, thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action take by the Government are not correct in law. 17. The question then is: what would be the correct procedure under the law? Unfortunately, no outside candidate has (13) WP234-09 questioned the selection of the candidates in the interview, In the light of what we have stated in the facts and circumstances, the appropriate and better course would be that SSSB Should call the names of all the candidates who were successful in the written examinations conducted between April 25 and April 28, 1992, inter view the candidates and select them in accordance with law laid down above. Since the appellants came to be appointed by virtue of the selection made, they would continue in service till the proper selection is made and the candidates are appointed in accordance with the Rules." 14. In the present case, it is crystal clear that the entire selection process is contrary to the canons of fairness and transparency in selection to the Public Employment. Within a span of two days, total 170 candidates i.e. 85 candidates each day were made to enter the chamber of the Selection Committee only for oral interview and ten candidates were selected by this sole process. Out of ten posts to be filled in, the candidates for nine posts were selected from the very list of 25 doubtful cases about which prior complaint was already made to the respondent No. 2 - District Deputy Registrar. Besides this, two additional posts were filled in merely by a resolution on the ground that respondent No. 15 - Gulab Chaudhary was working on daily wages (14) WP234-09 for seven years and the father of respondent No. 14 - Rupesh Pawar had retired from the services of the respondent No. 3 - A.P.M.C. 15. In view of the discussion made hereinabove, the entire selection process undertaken by the respondent No. 3 - A.P.M.C. will have to be declared as arbitrary and will have to be quashed and set aside. 16. Though the respondent Nos. 4 to 15 are employed after completion of the said selection process during the pendency of the petition, it is to be borne in mind that the appointment letters issued to them clearly indicated that their appointment would be purely on temporary basis for a period of six months and subject to approval from respondent No. 2 - District Deputy Registrar, as per Rules. In view of these facts, they cannot claim any equity and continuation in the employment. 17. In the result, the writ petition is allowed. The Rule is made absolute in terms of prayer clauses (B), (C) and (D). The respondent No. 3 - A.P.M.C. is (15) WP234-09 further directed to start the selection process afresh as per the due procedure of law. Sd/- Sd/- [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] After pronouncement of the judgement, learned counsel appearing for the respondent Nos. 4 to 15 made an application and prayed for stay of the above order. Considering the circumstances, our order is stayed for a period of four weeks. Sd/- Sd/- [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] npj/wp234-09