High Court
Legal Reasoning
945.WP.6579.23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.6579 OF 2023Avinash s/o Punjaram SalveAge : 46 years, Occu: Service asSenior Manager (Security),Office of the Chief Engineer, Bhusawal TPS, Deepnagar – 425307R/o; Bhusawal TPS, Bhusawal Dist. Jalgaon.… PETITIONER VERSUS 1.The Maharashtra State PowerGeneration Company Limited,through its Chairman and Managing Director,Address : Prakash Gadh, Anant Kanhekar Road,Bandra East, Mumbai – 400051.2.The Executive Director (HR),MAHAGENCO (Maharashtra State Power Generation Company Limited.),Address : Prakash Gadh Anant Kanhekar Road,Bandra East, Mumbai – 400051.3.Sandip s/o Ramkrushna WankarAge : 46 years, Occu: As Dy G.M. SecurityVidarbha Region, MAHAGENCO, Office of Chief Engineer, Koradi Thermal Power Station Koradi, Tq. Kamptee Dist. Nagpur Pin - 441111… RESPONDENTS ...Advocate for petitioner : Mr. Ajinkya S. ReddyAdvocate for respondent Nos.1 and 3 : Mr. Yuvraj S. Choudhari… CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ.Reserved on : 17.12.2024Pronounced on : 10.01.2025JUDGMENT (MANGESH S. PATIL, J.) :Heard. Rule. Rule is made returnable forthwith. Learnedadvocate Mr. Choudhari waives service for respondent Nos.1 and 3. At1/9 945.WP.6579.23.odtthe joint request of the parties, the matter is heard finally at the stage ofadmission.2.The petitioner is seeking a relief in the nature of quowarranto, questioning eligibility of respondent No.3 who has beenappointed on the post of Deputy General Manager (Security), pursuant toan Advertisement No.5/2022 dated 29.06.2022 of the respondent No.1 –the Maharashtra State Power Generation Company Limited (theCompany). He is also seeking writ of mandamus directing respondentNos.1 and 2 to appoint him on the post.3.Learned advocate Mr. Reddy for the petitioner submitted thatthe advertisement sought to recruit, on contractual basis for a period ofthree years, a post of Deputy General Manager (Security) and one of thepost was reserved for S.C. category to which the petitioner andrespondent No.3 applied for and the latter has been selected contrary tothe Rules and Regulations of the respondent – Company applicable to thepost. He submitted that a recruitment to the post could be through threedifferent categories of individuals viz. an ex-police Officer of the rank ofAdditional SP/DCP, an ex-serviceman of the rank of Subhedar Major andabove and a departmental candidate having suitable qualification withrequisite experience. He submitted that respondent No.3 who is not anemployee of the respondent – Company was not eligible for beingselected under any of these three categories and ought not to have beenselected and appointed.2/9 945.WP.6579.23.odt4. Mr. Reddy would further refer to the affidavit-in-rejoinderand submitted that by an administrative circular of the Company bearingNo.400 of 23.01.2018, even the word ‘Equivalent’ from the pre –requisites regarding eligibility of various posts of the company has beenexpressly resolved to be excluded and the stand of respondent Nos.1 and2 in their affidavit-in-reply that respondent No.3 was in the employmentof Central Reserve Police Force (C.R.P.F.) and was eligible, bydemonstrating similarity in the nature of the duties discharged by him asan Assistant Commandant in the C.R.P.F. with the post of an ex-officer ofIndian Army, Navy and Air force, is contrary to their own circular.5.Lastly, Mr. Reddy would submit that it is unbecoming of therespondent - Company and its Executive Director (HR) to contest thepetition joining hands with respondent No.3 when the writ questions hiseligibility. 6.Mr. Reddy would also submit that since the petitioner hasbeen in the employment of the respondent–Company posted at Bhusawal,District Jalgaon and where from he was called for the interview and hadraised objection about the eligibility of respondent No.3 from Bhusawal,this bench of the Bombay High Court at Aurangabad has the territorialjurisdiction to entertain the petition. He submits that constitutionaljurisdiction of the Court could not have been excluded by any statutemuch less by a condition in the advertisement. Learned advocate for thepetitioner would rely upon the following decisions :3/9 945.WP.6579.23.odti.Prem Dutt Vs. Kendriya Vidhyalaya Sanghathan, New Delhi;1998 LAB.I.C. 1676:: (1998) 2 LABLJ 231ii.Banashree Bharaddash Alias Banshree Bharadwaj Vs. State ofAssam and Ors.; 2015 LAB.I.C.4259:: (2015) 5 GAU LR 56iii.Ranajit Kumar Meher Vs. State of Orissa and Ors.;(2017) 4 Supreme Court Cases 568iv. Ashish Kumar Vs. The State of Uttar Pradesh and Ors.;(2018) 1 S.C.R. 695v.Dr. (Major) Meeta Sahai Vs. State of Bihar and Ors.;(2019) 20 Supreme Court Cases 17vi.Maharashtra Chess Association Vs. Union of India and Ors.;(2020) 13 Supreme Court Cases 285vii.Mukul Kumar Tyagi Vs. State of Uttar Pradesh and Ors.;(2020) 4 Supreme Court Cases 86viii.Suman Devi and Ors. Vs. State of Uttarakhand and Ors.;(2021) 6 Supreme Court Cases 163ix.The Employees’ State Insurance Corporation Vs. Union of Indiaand Ors.; 2022 LiveLaw (SC) 78x.Krishna Rai (Dead) Thr. LRs and Ors. Vs. Banaras HinduUniversity Thr. Registrar 7 and Ors.; 2022 LiveLaw (SC) 553xi.Abhimeet Sinha and Ors. Vs. High Court of Judicature at Patnaand Ors.; AIR Online 2024 SC 3267.Learned advocate Mr. Choudhari, referring to joint affidavit-in-reply of the respondents submitted that this Court being a bench of theBombay High Court at Aurangabad has no jurisdiction to entertain thepetition since there is a specific Clause No.21 in the Advertisementenjoining the prospective candidates to the jurisdictional courts atMumbai.8.On merits Mr. Choudhari would submit that Clause (a) of theeligibility pre- requisites/criteria merely expressed that a candidate mustbe serving or ex-Police Officer of the rank of Deputy Superintendent ofPolice and since it did not qualify it with any rider, respondent No.3 whowas serving as an Assistant Commandant in the Central Reserve Police4/9
Legal Reasoning
945.WP.6579.23.odtForce being in itself a police force, was eligible. He would also submitthat under Section 16 (1) of the Central Reserve Police Force Act, 1949 anotification has been issued by the Government of India, Ministry ofHuman Affairs dated 27.07.1976 which confers powers under the Code ofCriminal Procedure which are otherwise available only to a police officer,upon the officials of the C.R.P.F. and, therefore, no fault can be found withrespondent Nos.1 and 2 in considering his candidature from that categoryof police officers.9.Mr. Choudhari would further try to justify on the basis of thenature of duties performed by respondent No.3 in the C.R.P.F. which is aparamilitary force throughout India to combat insurgency in the North-East of the country, in Jammu and Kashmir and to counter Naxaliteactivities in several states, on the criteria of equivalence of pay scale ofthe post held by respondent No.3 with that of the post of Subedar Majorin Indian Army, Navy and Air force.10.Lastly, Mr. Choudhari would submit that petitioner havingparticipated in the recruitment process without demur cannot questionthe selection process and the challenge put up by the petitioner is an afterthought. He would rely upon the following decisions :i.Madan Lal and Ors. Vs. State of J & K and Ors.;(1995) 3 Supreme Court Cases 486ii.Anupal Singh and Ors. Vs. State of Uttar Pradesh Thr. PrincipalSecretary, Personnel Department and Ors.;(2020) 2 Supreme Court Cases 173iii.The State of Uttar Pradesh Vs. Karunesh Kumar and Ors.;2022 LiveLaw (SC) 1035 5/9 945.WP.6579.23.odt11.We have considered the rival submission and perused therecord.12.At the outset, it is necessary to emphasize that there is nodispute on facts. The whole issue revolves around the eligibility criteriaprovided for the post in question.13.Admittedly, the post in question could be filled in from threedifferent sources, as mentioned in the advertisement, namely :“a)Serving or Ex-Police Officer of the rank of Dy. SP and above withgood record at his credit; OR b) Serving or Ex-Service Officer from Indian Army/Navy/Air forcehaving held the rank of Subedar Major and above or equivalent;ORc)A departmental candidate having suitable qualifications for thehigher post. Should possess a minimum experience of 12 years(including Police/Military & other services) of which at least 8years of service in the post of Dy. Manager (Security) and above.”14.Admittedly, respondent No.3 was not in the employment ofthe respondent – Company and was not eligible under category (c) whichwas applicable only to the candidates like the petitioner beingdepartmental candidates.15.As can be gathered from the stand being taken in the jointaffidavit-in-reply filed by the respondents, they are justifying the decisionto select respondent No.3 holding him to be eligible under Clause ‘a’ andClause ‘b’ both.16.A plain reading of Clause ‘a’ would demonstrate that as hasbeen submitted by Mr. Choudhari it merely expects and makes eligible a6/9 945.WP.6579.23.odtperson who is either serving or is an ex-police Officer of the rank ofDeputy Superintendent of Police and does not restrict it to any specificpolice force. At the first blush, the submission appears to be impressive.However, bearing in mind the fact that as distinguished from Clause ‘b’,clause ‘a’ does not expressly enables consideration of equivalence, whenadmittedly respondent No.3 was not holding any post styled asAdditional SP/Deputy SP, the whole attempt of the respondents todemonstrate that he was holding a post equivalent to that of Deputy SPwould not be permissible in law. It is trite that any recruitment has to bestrictly in accordance with the Recruitment Rules and an advertisement.It is equally trite that even a condition in the advertisement which is notcompatible with the Recruitment Rules has to be ignored (Ranajit KumarMeher and the Employees’ State Insurance Corporation (supra)).17.It is further pertinent to note that the respondents have notput up a challenge to the stand of the petitioner in the affidavit-in-rejoinder, pointing Circular No.400 dated 23.01.2018 whereby, therespondent - company had expressly declared that in respect of everyrecruitment for any post, equivalence shall not be resorted to. Even forthis reason, the respondents are estopped from demonstrating thatrespondent No.3 was holding and served on a post which was equivalentto the rank of Deputy SP.18.Precisely for the same reason, once by Circular No.400 dated23.01.2018, equivalence was never supposed to be resorted to, to7/9 945.WP.6579.23.odtconsider eligibility of a candidate for the recruitment in the respondent -company, the condition in the Advertisement No.5/2022 in case ofcategory ‘b’ providing for the experience of serving in a post equivalent toSubedar Major from Indian Army/Navy/Air force, would be contrary toCircular No.400 and could not have been resorted to. Rather therespondents would now be estopped from justifying selection ofRespondent No.3 by demonstrating the nature of duties performed byhim as Assistant Commandant in the C.R.P.F. being at par with that of thepost of Subedar Major from Indian Army/Navy/Air force.19.The attempt of the respondents even to question the locus ofthe petitioner in questioning eligibility of respondent No.3 is fallacious. Itis not a matter of putting up a challenge to any clause of any recruitmentrule or the advertisement, in which cases the principle of estoppel wouldbe applicable. The petitioner is purely questioning eligibility ofrespondent No.3 in the light of the relevant rules and Circular No.400 ofthe respondent - Company. Any selection contrary to the rules andregulation going to the root of eligibility of a candidate could be a matterwhich can be raised at any stage and even a stranger would have a locusstandi to seek a writ of quo warranto in respect of a candidate selected inan employment to a public post.20.So far as the territorial jurisdiction of this bench isconcerned, though the advertisement contained Clause 21 and sought torestrict any dispute to the jurisdiction of the Courts in Mumbai, this Court8/9 945.WP.6579.23.odtbeing a constitutional Court, exercising the powers under Article 226 ofthe Constitution of India, its jurisdiction cannot be treated as having beenexcluded by the term in the advertisement.21.In light of above, respondent No.3 was not eligible to thepost of Deputy General Manager (Security) with the respondent -Company and ought not to have been selected and consequently, is notentitled to continue to hold the post.22.The writ petition is allowed. The selection and appointmentof respondent No.3 by the respondent Nos.1 and 2 on the post of DeputyGeneral Manager (Security) is quashed and set aside. The respondentNos.1 and 2 shall consider candidature of the petitioner to the postindependently. The decision shall be taken on its own merits, asexpeditiously as possible and in any case within four weeks.23.Rule is made absolute in above terms. [ PRAFULLA S. KHUBALKAR] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb9/9