High Court
Facts
14744.23wp etc(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.14744 OF 2023WITHCIVIL APPLICATION NO.12125 OF 2024IN WRIT PETITION NO.14744 OF 2023Akshay Rajendra Khomne PatilAge: 38 years, Occu: Service,R/o Shivaji Nagar, TPS Road, Parli,Tal- Parli Vaijnath, Dist. Beed ….PETITIONERVERSUS1.State of Maharashtra,Through its Secretary,Ministry of Energy,Govt. of Maharashtra,Mantralaya, Mumbai – 400 0322.Maharashtra State Power Generation Company Limited(MAHAGENCO),through its Chairman and Managing Director,Prakashgad, Plot No. G-9,Anant Kenekar Marg, Bandra (East.), Mumbai3.Executive Director (Human Resources),Maharashtra State Power Generation Company Limited (M.S.E.D.C.L.),Estrella Batteries, Extension Compound Building,Labour camp, Dharvi Road, Matunga, Mumbai ....RESPONDENTS 14744.23wp etc(2) ANDWRIT PETITION NO.14719 OF 2023Nashir Bashir Patel,Age: 42 years, Occu: Service,R/o at post Gulkhand, Tal. Palam,Tal- Palam, Dist. Parbhani ….PETITIONERVERSUS1.State of Maharashtra,Through its Secretary,Ministry of Energy,Govt. of Maharashtra,Mantralaya, Mumbai – 400 0322.Maharashtra State Power Generation Company Limited(MAHAGENCO),through its Chairman and Managing Director,Prakashgad, Plot No. G-9,Anant Kenekar Marg, Bandra (East.), Mumbai3.Executive Director (Human Resources),Maharashtra State Power Generation Company Limited (M.S.E.D.C.L.),Estrella Batteries, Extension Compound Building,Labour camp, Dharvi Road, Matunga, Mumbai ....RESPONDENTSAND 14744.23wp etc(3) WRIT PETITION NO.14720 OF 2023WITHCIVIL APPLICATION NO.12126 OF 2024IN WRIT PETITION NO.14720 OF 2023Shaikh Latif Shaikh Mahebub,Age: 37 years, Occu: Service,R/o Mamta Colony, Gangakhed,Tal- Gangakhed, Dist. Parbhani….PETITIONERVERSUS1.State of Maharashtra,Through its Secretary,Ministry of Energy,Govt. of Maharashtra,Mantralaya, Mumbai – 400 0322.Maharashtra State Power Generation Company Limited(MAHAGENCO),through its Chairman and Managing Director,Prakashgad, Plot No. G-9,Anant Kenekar Marg, Bandra (East.), Mumbai3.Executive Director (Human Resources),Maharashtra State Power Generation Company Limited (M.S.E.D.C.L.),Estrella Batteries, Extension Compound Building,Labour camp, Dharvi Road, Matunga, Mumbai ....RESPONDENTS ….Mr Sayyed Tauseef Yaseen, Advocate for petitioners in all petitions Ms Neha B. Kamble, A.G.P. for respondent No.1 in all petitionsMr Rahul A. Tambe, Advocate for respondent Nos.2 & 3 in all petitions 14744.23wp etc(4) CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. Reserved on : 21st November, 2024 Pronounced on : 17th January, 2025JUDGMENT (Per : Prafulla S. Khubalkar, J.)1.Rule. Rule made returnable forthwith. By consent of therespective parties, the petitions are taken up for final hearing.2.These petitions, under Article 226 of the Constitution ofIndia, deal with common grievance of the petitioners who haveimpugned the decision of respondent Nos.2/MAHAGENCO and3/MSEDCL, declaring each of them ineligible for the posts of‘Additional Executive Engineer’ and ‘Deputy Executive Engineer’, onaccount of absence of requisite experience of working at ‘IndependentPower Producer’ (IPP). Since the grievance of these petitioners isidentical raising similar challenge against respondent Nos.2 and 3, allthese three petitions are heard and decided together.3.The factual set up is succinctly put herewith. TheMaharashtra State Power Generation Company Limited(MAHAGENCO) the respondents no.2 published an advertisement 14744.23wp etc(5) No.09/2022, dated 09/10/2022 inviting applications for the posts of‘Executive Engineer’, ‘Additional Executive Engineer’ and ‘DeputyExecutive Engineer’. The advertisement contained details about theeligibility including the qualifications and experience required for therespective posts. In response to the advertisement, the petitionersapplied for the respective posts of ‘Additional Executive Engineer’ and‘Deputy Executive Engineer’ and submitted their experiencecertificates of having worked in ‘M/s Gangakhed Sugar and EnergyLimited’, which they claimed to be an IPP i.e. ‘Independent PowerProducer’. The petitioners appeared for the written examination andhaving stood qualified, their names were shortlisted for the stage ofDocuments Verification, as per the list published on 05/04/2023.4.On 28/10/2023, after the documents verification, a list ofineligible candidates was published which included the names of thepetitioners being held ineligible due to absence of experiencecertificate of IPP as required by the advertisement. On being declaredineligible, the petitioners submitted representations to the respondentspointing out that Gangakhed Sugar and Energy Ltd. is an IPP andtherefore, requested that their experience need to be counted fordeciding their eligibility. Since there was no decision on their 14744.23wp etc(6) representation and their grievance remained unredressed, they filed theinstant petitions challenging the decision declaring them ineligible andseeking a direction to consider them for appointment to the posts of‘Additional Executive Engineer’ and ‘Deputy Executive Engineer’ asper their applications.5.In response to the petitions, the respondent nos.2 and 3filed reply dated 27/03/2024 taking a specific stand that the petitionershave been declared as ineligible on the basis of assessment andscrutiny of documents by an Expert Committee of the respondents,comprising of two Executive Engineers (Technical Experts) andDGM-HR (HR-Experts), which was constituted for deciding theeligibility for both the posts. The respondents opposed the petition bycontending that the expert committee had scrutinized the documents ofthe petitioners in the light of pre-requisites as per the advertisementand since the petitioners do not have experience of working in IPP,they are rightly declared ineligible. The respondents havecategorically stated that the experience of Gangakhed Sugar andEnergy Ltd. cannot be considered as requisite experience as per theadvertisement since Gangakhed Sugar and Energy Ltd. is primarily asugar factory with major business of production of sugar from 14744.23wp etc(7) sugarcane and it is a Co-generation Power Producer which means theprimary reason for operating the power plant is to ensure that the heatand energy requirement for producing sugar. It is stated that, onlysurplus energy generated is sold to the grid and as such, GangakhedSugar and Energy Ltd. cannot be termed as an ‘Independent PowerProducer’ (IPP) as the power generation work is subsidiary in sugarproduction. It is also stated that the representations submitted by thepetitioners were considered by the Chairman and the ManagingDirector of the respondents and after considering the earlier opinionsof expert committee, the Chairman and the Managing Director hadmaintained the decision of the expert committee declaring thepetitioners ineligible.6.To controvert the stand of respondent Nos.2 and 3, thepetitioners submitted rejoinder affidavit dated 03/05/2024, statingtherein that the manner of production of electricity by the GangakhedSugar and Energy Ltd. through bagasse which is essentially a residueand is renewable source of energy. Amongst other contentions, it isstated that generation of electricity through coal or bagasse does notmake any difference for the purpose of categorizing the company as aproducer of electricity and therefore, it is submitted that Gangakhed
Legal Reasoning
14744.23wp etc(21) of the petitioners that ‘IPP’ as stated in the advertisement has to beunderstood to include Gangakhed Sugar and Energy Ltd., cannot thusbe accepted to nullify the decision of the expert committee of therespondents.29. A quick reference to the judgment in the matter of RituBhatia (supra) is necessary. While deciding the issue as to whetherthe appellants fulfilled the eligibility for the post of CompanySecretary, in view of the advertisement which provided that thecandidate must possess experience of five years as CompanySecretary, the Supreme Court has held that the respondent was theauthor of the advertisement and was the best person to consider whatwas meant by use of the word ‘as’ in the advertisement.30.The position of law is fairly clarified by the apex court inthe matter of Maharashtra Public Service Commission (supra) that,it is for the employer to decide the essential qualifications for aparticular post and that the employer may prescribe any additional ordesirable qualification including grant of preference. It is theemployer who is best suited to decide the requirements a candidatemust possess according to the needs of the employer and the nature ofwork. The Courts cannot delve into the issue with regard to desirable
Arguments
14744.23wp etc(8) Sugar and Energy Ltd. has to be categorized as an IPP for the purposeof deciding eligibility of the petitioners. Along with the rejoinder, thepetitioners have filed on record a Gazette copy of the MaharashtraElectricity Duty Act, 2016 (for short ‘the 2016 Act’) and EnergyPurchase Agreement (EPA) between the MSEDCL and M/sGangakhed Sugar and Energy Ltd. (GSEL), Gangakhed, Dist.Parbhani. 7.In response to this, respondent Nos.2 and 3 filed anaffidavit by way of a sur-rejoinder dated 10/06/2024 thereby pointingout that even after considering the contentions of the petitioners,Gangakhed Sugar and Energy Ltd. can be at the most considered to bea ‘Captive Power Plant’. Along with other contentions, therespondents pointed out the specific stipulation contained in theadvertisement which provided that experience certificate issued byprivate contractors, proprietors, Captive Power Plants, etc. shall not beincluded as ‘power generation experience’ and on this basis put forthits stand that the experience of the petitioners in Gangakhed Sugar andEnergy Ltd. cannot be considered for deciding their eligibility. 8.In the backdrop of these pleadings, the learned counselssubmitted their extensive arguments. We have considered the rivalcontentions and perused the record. 14744.23wp etc(9) 9. Advocate Sayyed Tauseef Yaseen, learned counsel for thepetitioners in all these petitions, strenuously argued that the decision ofthe respondents in declaring the petitioners ineligible is grossly illegalin view of the fact that Gangakhed Sugar and Energy Ltd. is IPP forall purposes and therefore, the experience of petitioners cannot bediscarded. He invited our attention to the advertisement and thedefinitions of the terms ‘Captive Generation’, ‘Co-generation’ and‘Independent Power Producer’ (IPP) as stated in the 2016 Act. Hevehemently argued that the parameters of determining an entity to bean IPP are exclusively governed by the statutory regime and thereforethe petitioners must be held to be eligible candidates. He also invitedour attention to the Energy Purchase Agreement between the MSEDCLand M/s Gangakhed Sugar and Energy Ltd. to point out thatGangakhed Sugar and Energy Ltd. is referred to as ‘GeneratorDeveloper’. Additionally, he invited our attention to the extract ofSTU Five year Transmission Plan for the year 2010-11 to 2014-15which contains a list of various plants under the caption, ‘ProposedYear wise Generation Addition by IPPs’/ Biogas/Bagasse/BiomassPlants, etc. for which PPA with various Distribution companies inState’, which contains name of M/s Gangakhed Sugar. Apart from 14744.23wp etc(10) these submissions, by pointing out that the respondents have earlieremployed one Dnyaneshwar Dhondiram Balwant, who had similarexperience in Gangakhed Sugar and Energy Ltd. and the same wastaken into consideration and on this basis petitioners are claimingsimilar benefit. 10.In support of their contentions, the petitioners filed onrecord written notes of arguments and have relied on followingjudgments :-(a)Dr. (Major) Meeta Sahai Vs. State of Bihar, [AIR OnLine2019 SC 1766];(b)Ankita Thakur Vs. H. P. Staff Selection Commission,[AIR OnLine 2023 SC 925];(c)Rakesh Kumar Vs. The State of Jharkhand and others,[Civil Appeal No.9217/2018(Supreme Court) arising out ofSpecial Leave Petition (Civ.) No.2316/2018];(d)Parvaiz Ahmad Parry Vs. State of Jammu and Kashmirand others, [(2015) 17 SCC 709];(e)Monnet Ispat & Energy Ltd. etc. Vs. Union of India andothers, [2017 SCC OnLine SC 2190]; and 14744.23wp etc(11) (f)Mayur Arun Tapase Vs. State of Maharashtra, Thr.Additional Chief Secretary, Home Department (Transport andPorts) and others, [2023 SCC OnLine Bom. 817].11.By referring to various extracts from the aforesaidjudgments, the learned counsel for the petitioners submitted that, sincethe advertisement did not contain any specification with respect to IPPand since there was an ambiguity in the advertisement, the petitionersshould be given the advantage while deciding their eligibility.12.Per contra, Advocate Rahul A. Tambe, learned counsel forrespondent Nos.2 and 3 made extensive submissions by placingreliance on the clauses of the advertisement, which categoricallymention the condition of experience in power generation company. Heinvited our attention to the specific stipulation in the advertisementwhich reads as under :-“The experience certificate issued by Private Contractors,Proprietors, Captive Power Plants etc shall not be included as aPower Generation experience’. The experience certificate inrespect of the company/organisation other than Central, StateGovt. Power Generation Utilities submitted by candidate shallbe self explanatory i.e. in the experience certificate area / natureof work shall clearly be mentioned so as to enable to decide his / 14744.23wp etc(12) her eligibility and there shall not be any ambiguity for decidingtheir eligibility”13.By inviting our attention to the documents on record, hewould submit that the decision to declare the petitioners as ineligiblewas taken by the expert committee which has scrutinized thedocuments submitted by the petitioners as well as considered the statusof Gangakhed Sugar and Energy Ltd. vis a vis the requirements of therespondents. He submitted that, since the decision is based upon andbacked by the opinion of the expert committee, interference of thisCourt under Article 226 of the Constitution of India is not warranted.14.He would further submit that the petitioners cannot claimany advantage on the basis of employment to DnyaneshwarDhondiram Balwant since he was selected through MSPGCL,Advertisement No.06/2014 and the criteria of experience as mentionedin that advertisement was entirely different. In support of theircontentions, respondent Nos.2 and 3 have also filed written notes ofarguments dated 19/09/2024. To highlight their contentions, therespondents have relied upon following judgments :-(a)Maharashtra Public Service Commission, thr. its SecretaryVs. Sandeep Shriram Warade and others, [(2019) 6 SCC 362]; 14744.23wp etc(13) (b)Tajvir Singh Sodhi and others Vs. State of Jammu andKashmir and others, [2023 SC OnLine 344]; and(c)Ritu Bhatia Vs. Ministry of Civil Supplies ConsumerAffairs & Public Distribution and others, [2019 (3) SCC 422].15.On the basis of these judgments relied upon by respondentnos.2 and 3, Advocate Tambe vehemently submitted that the finaldecision about eligibility based on experience has to be taken by theemployer and since the decision in these cases is based on the decisionof the expert committee, the petitioners’ challenge cannot sustain. 16.Advocate Ms. Neha Kamble, learned A.G.P. forrespondent No.1 supported the arguments made on behalf ofrespondent Nos.2 and 3.17.The rival contentions of the parties now fall for ourconsideration. The controversy revolves around the issue as towhether the experience of working at Gangakhed Sugar and EnergyLtd. can be considered as a requisite experience as per theadvertisement for the purpose of deciding eligibility for the post of‘Additional Executive Engineer’ and ‘Deputy Executive Engineer’.The advertisement specifically mentions that, for the post of 14744.23wp etc(14) ‘Additional Executive Engineer’, the requirement of experience is ofseven years in Power Generation Company ofCentral/State/Independent Power Producer (IPP) under principalemployer and for the post of ‘Deputy Executive Engineer’, similarrequirement of experience is of three years. 18.The petitioners have relied upon the experience certificateissued by Gangakhed Sugar and Energy Ltd. which document is notdisputed by respondents. However, crucial issue which falls forconsideration is as to whether Gangakhed Sugar and Energy Ltd. canbe categorized as IPP as per the requirement of the advertisement. 19.The terms ‘Captive generation’, ‘Co-generation’ and‘Independent Power Producer’ (IPP), are defined in the 2016 Act,which are reproduced below :-“(a)‘Captive generation’ means an energy generated from a‘Captive generating plant’ defined in clause (8) of section 2 ofthe Electricity Act, and the rules made thereunder by the CentralGovernment in this behalf;(b)“Co-generation” means an energy generated in a process,which simultaneously produces two or more forms of usefulenergy including electricity;……. 14744.23wp etc(15) (l)“Independent Power Producer (IPP) means a producer ofelectrical energy which is not a public utility but which makeselectrical energy available for sale to utilities or end users;20.It is pertinent to note that the advertisement does not statethat the term IPP would bear the meaning as defined in the statute.Therefore, the issue as to whether M/s Gangakhed Sugar factory fallsstrictly within the definition of the term contained in the 2016 Act isirrelevant, since the requirement of IPP has to be determined qua theperception of the employer. 21.Even if taking into consideration the above mentioneddefinitions, the further issue which falls for our consideration isregardless of categorisation of Gangakhed Sugar and Energy Ltd. as a‘Captive Power Generation Plant’ or ‘Independent Power Producer’(IPP), whether the respondents had the final authority to decide therequisite eligibility as per the advertisement. Another crucial issue isabout the scope of interference by this court under Article 226 of theConstitution of India. 22.Before we delve into this controversy, it is necessary totake note of the legal position as laid down by the judgment ofMaharashtra Public Service Commission, thr. its Secretary (supra), 14744.23wp etc(16) which deals with the issue about finality of the decision regardingeligibility as per the advertisement. Relevant paragraph No.9 from thejudgment is reproduced below :-“9. The essential qualifications for appointment to a post arefor the employer to decide. The employer may prescribeadditional or desirable qualifications, including any grant ofpreference. It is the employer who is best suited to decide therequirements a candidate must possess according to the needs ofthe employer and the nature of work. The court cannot lay downthe conditions of eligibility, much less can it delve into the issuewith regard to desirable qualifications being on a par with theessential eligibility by an Interpretive re-writing of theadvertisement. Questions of equivalence will also fall outsidethe domain of judicial review. If the language of theadvertisement and the rules are clear, the court cannot sit injudgment over the same. If there is an ambiguity in theadvertisement or it is contrary to any rules or law the matterhas to go back to the appointing authority after appropriateorders, to proceed in accordance with law. In no case can thecourt, in the garb of judicial review, sit in the chair of theappointing authority to decide what is best for the employer andInterpret the conditions of the advertisement contrary to theplain language of the same.”23.As regards the scope of interference by the Courts in theselection process for public employment, the following paragraphs ofthe judgment in Tajvir Singh Sodhi and others (supra) need to benoted :- 14744.23wp etc(17) 65. Before proceeding further, it is necessary to preface ourjudgment with the view that Courts in India generally avoidinterfering in the selection process of public employment,recognising the Importance of maintaining the autonomy andIntegrity of the selection process. The Courts recognise that theprocess of selection Involves a high degree of expertise anddiscretion and that it is not appropriate for Courts to substitutetheir judgment for that of a selection committee. It would beindeed, treading on thin ice for us if we were to venture intoreviewing the decision of experts who form a part of a selectionboard. ………………….66. Thus, the inexorable conclusion that can be drawn is thatit is not within the domain of the Courts, exercising the power ofjudicial review, to enter into the merits of a selection process, atask which is the prerogative of and is within the expert domainof a Selection Committee, subject of course to a caveat that ifthere are proven allegations of malfeasance or violations ofstatutory rules, only in such cases of inherent arbitrariness, canthe Courts intervene.”24.As regards the controversy involved in the matter, it ispertinent to note that the advertisement required possessing ofexperience of IPP and it also specifically stated that the experience of‘Captive Power Plant’ shall not be considered for the purpose ofeligibility. It is to be noted that Gangakhed Sugar and Energy Ltd. is a 14744.23wp etc(18) sugar factory with major business to produce sugar from sugarcane. Itis claimed by the petitioners that, since Gangakhed Sugar and EnergyLtd. is engaged in two different projects, one pertains to production ofsugar and other is electricity generation which is 30 Mega-Watt (MW),and therefore it has to be categorized as an ‘Independent PowerProducer’ of energy. The petitioners have also referred to theagreement to demonstrate that Gangakhed Sugar and Energy Ltd.provides 20.1 MW electricity in a season and in off-season it provides26.8 MW and that the electricity generation is done for 240 dayswhich includes seasonal period of 180 days and off-season period of60 days.25.It has to be noted that, for the purpose of deciding thestatus of Gangakhed Sugar and Energy Ltd. as an IPP, the details ofenergy production as submitted by the petitioners cannot be made thesole basis since the same is not recognised by the respondents.Requirement of the employer has to be understood according to theperception to meet the requisite experience. The existence ofexperience from an entity which is simultaneously involved in powergeneration, cannot be imposed upon the employer to mandatorilycategorise it as requisite experience. As such, irrespective of strict 14744.23wp etc(19) categorisation of M/s Gangakhed Sugar Ltd. as ‘Captive PowerGeneration Plant’ or ‘Independent Power Producer’ (IPP), the finaldecision for the purpose of deciding the requisite experience has to bewith the respondents.26.It also has to be noted that the recruitment advertisementdoes not specifically mention that the term IPP has to be understood inthe strict sense as per the statutory definition or guidelines. As such,the issue as to whether Gangakhed Sugar and Energy Ltd. falls in thedefinition of IPP as per the 2016 Act, would be redundant. It will haveto be decided by the perception of the expert committee of respondentNos.2 and 3. As regards the manner of production of electricity byGangakhed Sugar and Energy Ltd. by use of bagasse and resultantpower generation etc., will also have to be given due weightageaccording to the decision of expert committee which decided theeligibility qua the advertisement.27.Reliance placed by the learned counsel for the petitionersupon the judgment of the Supreme Court in Monnet Ispat & EnergyLtd. etc. (supra) to fortify his submission about parameters tocategorise a power generation company as ‘Captive Power Plant’based on the annual generation and consumption of electricity, has to 14744.23wp etc(20) be read in the context of facts of that case. In the instant cases, evenby considering power consumption of Gangakhed Sugar and EnergyLtd. being less than 51% of the aggregate electricity generated,whether it has to be considered as ‘Captive Power Generation Plant’,oran IPP, the decision of the expert committee of the respondents fromthe perspective of requirement per their advertisement will bedeterminative. 28.Reliance placed by the learned counsel for the petitionerson the judgments in the matters of Ankita Thakur Vs. H. P. StaffSelection Commission (supra); Rakesh Kumar Vs. The State ofJharkhand and others (supra) and Parvaiz Ahmad Parry Vs. Stateof Jammu and Kashmir (supra), to highlight his contention that, incase of ambiguity in the advertisement, the benefit must fall in favourof the candidate, cannot be of any assistance to the petitioners since noambiguity in the advertisement is pointed out. The advertisementrequires experience of IPP although no specifications of IPP arementioned. Therefore, the decision of expert committee becomes morecrucial. It is pertinent to note, no judgment is cited by either parties,holding specifically that Gangakhed Sugar and Energy ltd. is an IPPfor all purposes. In view of the overall circumstances, the contention
Decision
14744.23wp etc(22) qualifications being on par with the essential eligibility, by interpretivere-writing of the terms of advertisement and that the questions ofequivalence will fall outside the domain of judicial review. Theposition of law when applied to the instant case, it will have to be heldthat the Courts cannot sit over the decision of the expert committee ofthe employers which is conscious of the exigencies of the employer.The decision as to whether the experience of a particular entity isrequisite experience for a particular post falls within the domain of theemployer and any interference in that arena is uncalled for. 31.In the light of the factual and legal position as consideredherein above, we are of the considered view that indulgence underArticle 226 of the Constitution of India is not necessary. Hence, thesepetitions are liable to be dismissed. 32.The Writ petitions are dismissed with no order as to costs.Pending civil applications also stand disposed of.33.Rule is discharged. (PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.) 14744.23wp etc(23) 34.After pronouncement of the judgment, the learnedadvocate for the petitioners submits that ad interim relief has been inoperation till date and requests for its extension to enable thepetitioners to approach the Supreme Court.35.Learned advocates for the contesting respondents stronglyoppose the request on the ground that the ad interim relief was grantedex parte, which fact the learned advocate for the petitioners denies.36.In stead of extending the ad interim relief, we declare thatany appointment made hereafter within four weeks in respect of theseats, which were directed to be kept vacant, shall be subject to thefinal outcome of the matter to be preferred before the Supreme Court.(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk