High Court
Legal Reasoning
947.WP.519.2019 +.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.519 OF 2019Kirankumar s/o. Dagadu Wanve … PETITIONER VERSUS 1.Dr. Babasaheb AmbedkarMarathwada University Aurangabad, through its Registrar2.Shri B.A. Chopde,Vice Chancellor,Dr. Babasaheb Ambedkar MarathwadaUniversity Aurangabad3.His Excellency the Hon’ble Chancellor,Dr. Babasaheb Ambedkar MarathwadaUniversity, Aurangabad RajbhavanMalbar Hill, Mumbai4.The Principal Secretary,Higher and Technical Education Department, Mantralaya, Mumbai 400 0325.Sanjay s/o Kishanrao Pawar … RESPONDENTSWITHWRIT PETITION NO.9908 OF 2019Sanjay s/o. Kishanrao Pawar… PETITIONER VERSUS 1.The State of Maharashtrathrough Principal SecretaryHigher and Technical Education Mantralaya, Mumbai – 4000322.The Hon’ble Chancellor,Dr. Babasaheb AmbedkarMarathwada University Aurangabad, Rajbhavan Malbar Hill, Mumbai 3.Dr. Babasaheb Ambedkar Marathwada,University, Aurangabad through it’s Registrar1/14
Legal Reasoning
947.WP.519.2019 +.odt4.Shri B.A. Chopde (deleted as per Court’s order dated Vice-Chancellor, 13.08.2019 and 27.09.2019)Dr. Babasaheb Ambedkar Marathwada, University, Aurangabad5.Smt. Sadhana Pande, ( deleted as per Court’s order dated Incharge Registrar, 13.08.2019 and 27.09.2019)Dr. Babasaheb Ambedkar Marathwada, University, Aurangabad6.Kirankumar s/o Dagadu Wanve … RESPONDENTS ...Advocate for petitioner in WP/519/2019 and for Respondent No.6 in WP/9908/2019: Mr. A.S. DeshpandeAdvocate for petitioner in WP/9908/2019 : Mr. D.J. ChoudhariAdvocate for Resp. Nos.1 & 2 in WP/519/2019 & for Resp. No.3 in WP/9908/2019 : Mr. S.S. ThombreAGP for Resp. Nos.1 & 2 in WP/9908/2019: Mrs. Kalpalata PatilBharaswadkar… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.Reserved on : 30.07.2024Pronounced on : 20.09.2024JUDGMENT (PER : MANGESH S. PATIL, J.) :Heard. Rule in both the matters. It is made returnableforthwith. Mr. S.S. Thombre waives service for the respondent –University. The learned advocates for the petitioner/s waive service ofnotice to the respective petitioner who have been arrayed as respondentin one another’s proceeding, and Mrs. Bharaswadkar waives service forrespondent – State.2.These are separate writ petitions by two candidates aspiringto be selected to the post of Assistant Registrar in the selection processundertaken by the respondent – University pursuant to the advertisementdated 06.03.2012. Since the dispute arises out of the recruitment process2/14
Decision
947.WP.519.2019 +.odtand most of the facts are admitted, in order to avoid rigmarole both thesematters are being disposed of by this common judgment and order.3.Obviating mention to the chequered history, it would sufficeto observe that the advertisement was published for recruitment of sixposts of Assistant Registrar and the post in question was expresslyreserved for VJ-A category, albeit, as per the advertisement so alsogeneral instructions in clause 10.4 and even the provisions of Section4(3) of the Maharashtra State Public Services (Reservation for ScheduledCastes, Scheduled Tribes, De-notified Tribes (Vimukta Jati), NomadicTribes, Special Backward Category and Other Backward Classes) Act,2001 (herein after the Reservation Act), though, as per the roster, thepost was reserved for VJ-A, it was interchangeable amongst the othercategories that is NT-B, NT-C and NT-D.4.The eligibility criteria was prescribed inter alia of having50% marks in the Post Graduate Degree of the statutory University andfive years experience in administrative cadre not below the rank ofSuperintendent or Lecturer, with three years teaching experience.Besides, few other criteria were also provided like proficiency in thelanguage, computer knowledge and administrative experience.5.The selection was to be made on the basis of the marksscored at the written examination of 70 marks, interviews of 20 marksand experience which was of 10 marks. The benchmark was onlyprescribed for the written exam of scoring 40% of 70 marks. No separate3/14 947.WP.519.2019 +.odtbenchmark was fixed in respect of total score. 6.There is also no dispute about the scores. Petitioner Wanvehad scored 66.16 marks (Written Test 53/70, Experience 10/10 and Oral3.16/20), whereas, petitioner Pawar had scored 49.83 marks (WrittenTest 32/70, Experience 10/10 and Oral 7.83/20).7.After some issues were raised by both these petitioners byfiling writ petitions, ultimately the interviews were conducted by the dulyconstituted selection committee comprising of six members, on20.08.2018 but it resolved that no candidate was suitable. Admittedly,the Chancellor’s nominee had recorded a dissent note in the minutes andopined that these two petitioners could have been considered. Aggrievedthereby, the petitioners are before this Court in separate writ petitions.8.Mr. Wanve, as submitted by his learned advocateMr. Despande, is challenging the process inter alia attributing mala fideson the part of the duly constituted selection committee except theChancellor’s nominee who had put up a note of dissent. He wouldcategorically point out as to how except Chancellor’s nominee, the otherfive members had given him negligible marks out of 20 in the interview.He would submit that still, he could score fairly well in aggregate havingscored 66.16 marks. There was no benchmark for the performance at theinterview though it was there for the written test at 40% out of 70 marks.He would, therefore, submit that the selection committee ought not tohave but seems to have changed the rules of the game after it was played,4/14 947.WP.519.2019 +.odtas held in the matter of Durgacharan Misra Vs. State of Orissa and Ors.;(1987) 4 Supreme Court Cases 646. He would submit that even thoughpetitioner - Pawar was from VJ-A category, since the post wasinterchangeable, having scored highest marks amongst all the candidatesMr. Wanve ought to have been selected and appointed. 9.Mr. Deshpande would, lastly, submit that in fact, there weresix posts of Assistant Registrar and a person appointed from opencategory Mr. Nage had scored 65.2 marks and Mr. Wanve in spite ofhaving scored more, irrespective of the category ought to have beenselected and appointed.10.Per contra, the learned advocate for the University wouldjustify the action of selection committee finding no suitable candidateand resolving to that effect. He would submit that even if there was anote of dissent, five out of six members were unanimous and had foundnone of the candidate suitable for being selected. Since it is a matter ofselection process conducted by a duly constituted committee comprisingof six individuals, in the absence of strong evidence/material, to attributemala fides or procedural impropriety, this Court while exercising thejudicial review under Article 226 of the Constitution of India haslimitations. It was a conscious decision taken unanimously and cannot bea subject matter of judicial review. He would rely upon decision in thematter of Union of India and Ors. Vs. Kali Dass Batish and Anr.; AIR 2006Supreme Court 789.5/14 947.WP.519.2019 +.odt11.Mr. Chaudhari learned advocate for the petitioner - Pawarwould submit that the petitioner belongs to VJ-A category. As per rosterthe post in question was reserved for that category. Though it wasinterchangeable amongst VJ-A, NT-B, NT-C and NT-D, it is only if asuitable candidate was not available from VJ-A category that it couldhave been offered to the other sub-categories that is NT-B, NT-C and NT-D. He would submit that since petitioner - Pawar had scored maximummarks from amongst the candidates from VJ-A category, there was noreason for the selection committee to resolve that no candidate wasfound suitable. As is the stand of petitioner - Wanve, Mr. Choudhariwould also point out that though the resolution was unanimous,Chancellor’s nominee had put up a note of dissent and petitioner - Pawarcould have been easily selected and appointed.12.Mr. Chaudhari would submit that claim of petitioner Wanvesimply on the basis of interchangeability of the post amongst VJ-A, NT-B,NT-C and NT-D is misplaced. As the post was reserved for VJ-A category,it is only in the case of non-availability of any candidate from thatcategory that Mr. Wanve could have laid claim. Since the petitioner -Pawar had, admittedly, scored more than 40% marks out of 70 in thewritten examination, which alone was prescribed as the benchmark, therewas no reason for the selection committee to deny him the selection andthe post.13.Mr. Choudhari would, additionally, submit that even in the6/14 947.WP.519.2019 +.odtearlier selection process for the same post conducted in the year 2006petitioner – Pawar was selected by the duly constituted committee as thefirst preference if the person selected Mr. Netke D.M. could not join. Hewould submit that the whole action of the selection Committee to abortthe selection process is arbitrary.14.We have considered the rival submissions and perused thepapers.15.There is no dispute about the fact that in all six posts ofAssistant Registrar were advertised and the seat against which both thesepetitioners are seeking to be selected and appointed, was reserved forVJ-A category. There is also no dispute that not only in the advertisementbut the instructions contained a specific stipulation that that post wasinterchangeable amongst VJ-A, NT-B, NT-C and NT-D. Even as perReservation Act, 2001, Section 4(3) such a seat would beinterchangeable.16.There is also no dispute about the fact that the selection wasto be made on the basis of total 100 marks, wherein, WrittenExamination was of 70 marks, Education Qualification and Experiencewere to have 5 marks each and the remaining 20 marks were ofinterview. The benchmark was provided only for the written examination,of scoring minimum 40% which comes to 32 marks out of 70 marks.There was no stipulation providing for any benchmark for theperformance at the interview.7/14 947.WP.519.2019 +.odt17.There is also no dispute about the fact that in aggregatepetitioner - Wanve had scored 66.16 whereas petitioner - Pawar hadscored 49.83. There is not even a dispute that both had crossed thebenchmark of scoring 40% in the written examination. Admittedly, thepetitioner - Wanve was not from VJ-A category but was from NT-Dcategory. Even it is not in dispute that the petitioner - Wanve had scored3.16 and petitioner - Pawar had scored 7.83 at the interview.18.Once having borne in mind the aforementioned facts andcircumstances, it is apparent that petitioner - Pawar who is belonging toVJ-A category has been in the process and even staking a claim for beingselected and appointed against that post. Sub-Section 3 of Section 4 ofthe Reservation Act, 2001 clearly mentions that the reservations specifiedfor categories mentioned at serial Nos.3 to 6 from Sub-Section 1 whichsequentially are, VJ-A, NT-B, NT-C and NT-D, shall be inter-transferable.However, it further provides that if suitable candidates for the postsreserved for any of the said categories are not available in the samerecruitment year, the post/s shall be filled by appointing suitablecandidate/s from any other of the said categories. It is thus abundantlyclear that percentage of reservation specified under Sub-Section 2 apart,it is only when a suitable candidate/s for the post of the said categoryis/are not available that it can be filled by a suitable candidate from theother three categories. It cannot be interpreted to mean that irrespectiveof percentage of reservation any seat reserved for any of these four8/14 947.WP.519.2019 +.odtcategories can be filled in without any reference to the specificreservation and roster point. Meaning thereby, it is only if according tothe roster when a post is to be filled in from a specific category out ofthese four but there is no suitable candidate, that it can go back to theother categories.19.The advertisement as also the instructions to the aspiringcandidates expressly stipulated and described that one post of AssistantRegistrar was reserved for VJ-A. It is thereafter by a bracketed portion itwas notified that the post was inter-transferable amongst these fourcategories. The fact that such inter-transferability was expressly notifiedby putting a bracket was clearly in consonance with the provisioncontained in Sub-Section 3 of Section 4 of the Reservation Act.20.Once having reached this stage, when the petitioner - Pawaris from VJ-A category for which the post in question was reserved, it isonly if either he or other candidates from that VJ-A category were foundnot suitable that the post could have been filled by a candidate from theother three categories that is NT-B, NT-C and NT-D. Petitioner - Wanvebeing a NT-D category candidate would not have any vested right ofbeing considered for selection and appointment against that post unlesspetitioner - Pawar was held to be not suitable. It is only to this extentthat petitioner - Wanve can place his foot to keep the door ajar. 21.This takes us to the decision of the selection committee tohold both these petitioners as also the other candidates as not suitable. 9/14 947.WP.519.2019 +.odt22.As per the service jurisprudence, and the inherent limitationson the powers of this Court to undertake judicial review in the matter ofselection process, it would not suffice for the petitioners to contend andpoint out some defects or errors and attribute some ill-intention. Sufficefor the purpose to observe that even if it is a matter of record that theselection committee was comprising of six members including the Vice-Chancellor and the impugned decision holding that no suitable candidatewas found was a majority decision, wherein, five members hadunanimously reached the conclusion, the dissenting note of the 6thmember, who was the Chancellor’s nominee, would not take thepetitioners case any further much less would not be sufficient to attributegross error or arbitrariness in undertaking the selection process. Since itwas decided by the Selection Committee that no candidate was suitable,even there would not be any substance in alleging and attributing malafides on the part of the members of the selection committee. Being theexperts if they, by such a thumping majority, could unanimously reach aconclusion, it would not be within the realm of the judicial review toundertake any further scrutiny and substitute its inference in place of thedecision of the selection committee.23.Merely pointing out that the other members had given veryless marks and only the Chancellor’s nominee could give fair markswould not ipso facto be sufficient to upset the majority decision of theselection committee holding that no candidate was suitable for the post.10/14 947.WP.519.2019 +.odt24.Obviously, it is trite that rules of the game cannot be changedafter it was played, being the basic theme, as laid down in the matter ofDurgacharan Misra’s case (supra), the submission of Mr. Deshpande toresort to it is of no consequence for the simple reason that it is based onhypothesis. There is absolutely no material to demonstrate that theselection committee having applied some parameter without anyindication to the candidates before hand. Though no benchmark wasprovided for the over all selection, and was prescribed only for, in allprobability, weeding out unsuitable candidates securing less than 40% ofmarks in the written test, it cannot be said that any benchmark wasactually applied.25.Assuming for the sake of arguments that the ultimatedecision of the selection committee to hold that no candidate was foundsuitable is based on purely on the basis of the score at the interview, thepetitioner - Pawar who is VJ-A would get selected automatically havingscored better (7.83/20) than petitioner - Wanve (3.16/20). As has beenobserved earlier since the post in question was specifically reserved forVJ-A category, petitioner - Pawar could be preferred as opposed topetitioner - Wanve who is from NT-D category. Therefore, there is nosubstance in the submission of Mr. Deshpande in respect of non-observance of the principle laid down in the matter of Durgacharan Misra(supra). It is not the matter of changing the rules of the game.26.The argument of Mr. Deshpande that an open candidate Mr.11/14 947.WP.519.2019 +.odtNage, who had secured 65.2 marks, having been appointed against one ofthe six posts, petitioner - Wanve having scored more than him at 66.16,and ought to have been selected is indeed appealing. However, onecannot lose sight of the fact that for whatever reasons, though there weresix posts of Assistant Registrar advertised providing for reservationaccording to the roster, the selection process to the extent of the otherposts except the post in question was allowed to be concludedindependently. Pursuant to the disputes amongst these petitioners andanother candidate Mrs. Rathod, who all had preferred writ petitions andeven there was a petition of some association, only to the extent of thepost in question, the selection process lingered. This, in all probability,has resulted in such dichotomy.27.One need not delve to discuss as to how the reservationpolicy is to be implemented. Irrespective of the category the selection hasto be on the basis of merit only across all the candidates. It is thereafterthat the reservations are to be applied. This would enable a meritoriouscandidate of a reserved category to get selected against an unreservedpost purely on the basis of merit. This sequence ensures and avoids theparadoxical situation as is now being pointed out by Mr. Deshpande,wherein, Mr. Nage having scored less than petitioner - Wanve could beselected against an unreserved post. Precisely for this reason, had all thesix posts of Assistant Registrar been filled in in the same selection processeverything could have fallen in place.12/14 947.WP.519.2019 +.odt28.When the selection process was disrupted and was allowedto be proceeded without any demur, it would lead, as it is beingdemonstrated in the present matter, to such incongruous effect.29.It is not the case of the petitioner - Wanve about having everchallenged such holding of selection process in a piecemeal manner andhe ever having even independently objected to selection of Mr. Nage whohad scored less than him. Consequently, petitioner - Wanve cannot deriveany benefit from such state of affairs.30.This boils down to the fact that petitioner Pawar being aVJ-A candidate for which the post in question was reserved was also inthe process and had scored more than petitioner – Wanve, at theinterview, but still neither of them was found suitable. Since it is amatter of selection process conducted by a duly constituted committeecomprising of six individuals including the Vice-Chancellor of theUniversity, unless there is gross arbitrariness and serious mala fidesattributable to all the members of the selection committee, whichaccording to us cannot be made out on the basis of the factsdemonstrated, we are bound by the consistent view in catena of decisionsviz. R.S. Dass Vs. Union of India, (1987) 1 SCR 527, National Institute ofMental Health and Neuro Sciences Vs. K. Kalyana Raman and Ors.;MANU/SC/0342/1992, and M.V. Thimmaiah and Ors. Vs. Union PublicService Commission and Ors.; (2008) 2 Supreme Court Cases 119. Thiscourt cannot sit in appeal over the decision of the selection committee.13/14 947.WP.519.2019 +.odtSince none has been selected even bias cannot be attributed as also themala fides.31.Resultantly, there is no merit in either of the petitions andboth are liable to be dismissed.32.The writ petitions are dismissed. Rules are discharged. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb14/14