1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3043 OF 2009 Sonali Chandrakant Navthar, age 20 years, Occu. Anganwadi Shevika, R/o Khirdi, Tq. Khultabad, District Aurangabad. ....Petitioner. Versus 1] Smt. Sangita Uttam Warkad, Age 20 years, Occu. Nil, R/o Khirdi, Tq. Khultabad, District Aurangabad. 2] The Child Development Project, Officer, Integral Child Development, Khultabad, Dist. Aurangabad. 3] The Block Development Officer, Panchayat Samiti, Khultabad, Tq. Khultabad, Dist. Aurangabad. 4] The Chief Executive Officer, Zilla Parishad, Aurangabad. 5] The Divisional Commissioner, Aurangabad Division, Aurangabad. ....Respondents. Shri. A.V. Patil Advocate for the Petitioner Shri A.B. Gaikwad, Advocate for respondent Nos. 2 ,3 & 4 Shri. D.R. Kale, A.G.P. for the respondent No. 5. 2 CORAM : R.K. DESHPANDE, J. DATE : 16th June 2010. ORAL JUDGEMENT: 1. The Divisional Commissioner, Aurangabad by his order dated 13/04/2009 passed in appeal preferred under Section 267-A by the respondent No. 1, has set aside the selection of the petitioner for the post of Anganwadi Assistant ( Anganwadi Karyakarti), and this is the subject matter in the instant Writ Petition. 2. The notices were issued in this matter on 08/05/2009 and an interim relief in terms of prayer clause 'D" of the petition regarding stay to the effect, operation and execution of the order dated 15/04/2009 passed by the Divisional Commissioner, in appeal No. 15 of 2009 was granted.. The parties are served. Shri S.T. Veer, the learned counsel appears for respondent No. 1, Shri A.B. Gaikwad, the learned counsel appears for respondent Nos. 2, 3 & 4. The learned Assistant Government Pleader appears for respondent No. 5. The learned counsel for the parties agree that the Writ Petition can be heard finally at the stage of admission. Hence, Rule returnable forthwith. The learned counsel for respondents waives of notice . The matter is heard at length by consent of parties. 3. By the impugned order, the Divisional Commissioner has 3 held that the criteria for selection of the candidates as was specified in the Government Resolution dated 12/03/2008 was not followed by the members of the Selection Committee and the marks awarded in oral interview to the respondent No.1, were less than those contemplated under the said Government Resolution. The finding is recorded that the respondent No.1 had passed the 12th standard examination and she should have been awarded 25 marks, as prescribed under the Government Resolution. It is further observed that the petitioner passed only 9th standard but was still awarded 30 marks by each of the members of the selection committee. 4. Shri Patil, learned counsel appearing for the petitioner has urged that there is no finding recorded by the Divisional Commissioner that the selection is vitiated either on count of mala-fides , bias and favoritism. The competent selection committee consisting of experts, has made assessment and awarded the marks to the candidates, which could not have been interfered with by the Divisional Commissioner. Two judgments are relied upon by the learned counsel for the petitioner. In the case of “ Dalpat Abasaheb Solunke V/s. Dr. B.S. Mahajan & others, reported in (990) 1 Supreme Court Cases 305” it has been held that it is not open for the High Court to assess relative merits of the candidates, which has been done by the competent selection committee and to interfere with the order of such selection. He further relies upon the decision of the Apex Court in the case of “M.V. Thimmaiah & others 4 V/s. Union Public Service Commissioner & others reported in 2008(2) SCC 119,” wherein it has been held that normally, the recommendations of the selection committee cannot be challenged, except on the ground of mala-fides, serious violation of statutory Rules. It has been further held that the courts cannot sit as an appellate authority, to examine recommendations of the selection committee only and the Courts rarely sit as a court of appeal, to examine the selection of candidates nor is it the business of the Court to examine each candidate and record its opinion. 5. As against the aforesaid submissions, the learned counsel appearing for the respondents have supported the order passed by the Divisional Commissioner impugned in the present petition. It is urged that the Divisional Commissioner found that the criteria prescribed under the Government Resolution dated 12/03/2008, has not been followed while allotting the marks to the candidates. The Selection of the petitioner has been set aside on the ground of breach of norms prescribed for allotment of marks by the competent selection committee. The findings of facts are recorded by the Divisional Commissioner in the order, which are not challenged and hence, no interference is required under Article 226 and 227 of the Constitution. 6. With the assistance of the learned counsel for the parties, I have gone through the impugned order, passed along with statement of 5 marks and the Government Resolution prescribing criteria for selection of candidates. It is not in dispute that the respondent No. 1 has passed 12th standard examination and according to the criteria prescribed for allotment of marks, she was required to be given 25 marks, on that count whereas the selection committee has awarded 20 marks. It is also not in dispute that the petitioner has passed 9th standard examination. The order passed by the Divisional Commissioner is thus based upon the finding of fact that the criteria prescribed under the Government Resolution for awarding marks, has not been followed by the members of the competent selection committee. The view taken by the Divisional Commissioner, is a possible view, based upon the relevant consideration and hence, in my opinion needs no interference. 7. Shri Patil, the learned counsel for the petitioner has urged that even if the respondent No. 1 was awarded 25 marks as contemplated by the criteria mentioned in the Government Resolution dated 21/03/2008, the same would not make any difference as the total marks awarded to the respondent No. 1 were 35.83 and adding of the marks would make it 40.83. According to him, the petitioner was awarded total 44 marks and therefore, the Divisional Commissioner should have taken this, into consideration and should not have set aside the selection. The position as pointed out by the learned counsel cannot be disputed. However, the order passed by the Divisional Commissioner setting aside the selection based upon violation of criteria prescribed 6 and if selection is vitiated on that count, persons becoming would become eligible in the mean time for fresh selection, will have an opportunity to compete. One does not know, as to what practice was allotted in awarding marks to other candidates who are not before Court, when the finding is that the norms are violated. Hence, the order setting aside the selection, cannot be faulted with. 8. So far as the decisions of the Apex Court cited supra, laid down, which are relied upon by the petitioner, the proposition cannot be disputed. The Divisional Commissioner has not judged the merits of the candidates, but has merely held that the criteria prescribed for allotment of marks, has not been followed by the members of the Selection Committee. Hence, the said decision in Dalpat’s case, is not applicable to the facts of the present case. The another judgment relied upon by the learned counsel for the petitioner in M.V. Thimmaiah’s case, is also not applicable to the facts of the present case, for the reason that the Divisional Commissioner has not judged the merits of the candidates as an appellate authority. He has merely found that criteria for allotment of marks has not been followed by the members of the Selection Committee. It is true that there is no finding recorded by the Divisional Commissioner, in respect of allegations of mala-fides or favoritism, but still if the mandatory provision is not followed, the selection can be set aside. At any rate, it is a possible view taken by the Divisional Commissioner, based upon the relevant criteria and it will be 7 open for the petitioner as well the respondent to compete for the said posts, afresh. 9. In the result, there is no merit / substance in the petition and same deserves to be dismissed. However, there shall be no order as to costs. 10. It is noted that in response to the order passed by this Court, Shri Kishore D. Venkeshwar – respondent No. 2 in the instant petition, is present before this Court, as informed by the learned counsel. 11. The learned counsel for the petitioner prays for continuation of interim order passed by this Court on 08/05/2009, for a period of four weeks to enable him to have recourse to further remedy. The prayer made by the learned counsel of the petitioner is vehemently opposed by the learned counsel for respondent No. 1. However, in view of the fact that, the petitioner is already working on the post, three weeks time is granted, and hence, the interim order shall continue for a period of three weeks, at the end of which, it shall automatically stand vacated, without reference to Court. [ R.K. DESHPANDE, J. ] SDM* WP3043.09WP(J)