High Court
Legal Reasoning
18-WP-460-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 460 OF 2024Kanchan Deelip Mule@ Joshi Sukanchan Purushottam..PETITIONERVERSUSState of Maharashtra and Others..RESPONDENTS....Mr. U.S. Malte, Advocate for petitioner Ms. P.J. Bharad, A.G.P. for respondent nos.1 and 2Mr. P.P. Kothari, Advocate for respondent nos. 3 to 5Mr. Shrimant Mundhe, Advocate for respondent no.6.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJDATE : 30th JUNE, 2025PER COURT :1.With the consent of learned counsel for the parties, the petition isheard finally.2.The petitioner joined as ‘Asha worker’ way back in February 2009.She continued to work as such. During her continuance in service, process offilling-up the post of Group Facilitator was undertaken. It was admittedly theCentral Government sponsored scheme implemented by the StateGovernment in the Department of Health.3.A short question that fall for consideration in this writ petition isas to whether the petitioner, who has passed preparatory examination from1 / 8 18-WP-460-24.odtYashwantrao Chavan Maharashtra Open University (‘YCMOU’) and first yearof her graduation, is entitled for five marks equal to that of the candidate,who passed the HSC examination. Admittedly, on the date of her interview,the petitioner had completed graduation in Arts from YCMOU. As per theguidelines / communication dated 10th August, 2016, the marking criteria hasbeen prescribed, which reads thus :-v-dz-efgykmesnokjkpsuko10 ohmRrh.kZvlY;kl12 ohmRrh.kZvlY;klinoh/kjvlY;klinO;qRrjinoh/kjvlY;kl,e-,l-lh-vk;-Vh-dkslZizek.ki=vlY;klloksZRd`”V vk’kkLo;alsfodkiqjLdkj feGkykvlY;kl(dks.kR;kghLrjkojhy)vk’kkLo;alsfodkinkojdk;ZjrvlY;klLkkekU;Kku @nkSjk{kerk @{ks=h;dkekphvkoM,dw.kxq.k4.After the interviews were held, the petitioner was found to havesecured highest marks, and therefore, she was given appointment. She evenworked on the said post for three years. Respondent No.6 was also one ofthe candidates, who appeared for the interview for the said post. She made agrievance to the concerned authority complaining the petitioner to have notpassed HSC examination. Cognizance of her complaint was taken and thedecision was arrived at whereby five marks allotted to the petitioner onaccount of her having qualification equivalent to 12th standard, werewithdrawn. As a result, Respondent No.6 stood secured highest marks andwas given appointment order. Presently she has been working on that post.5.Learned counsel for the petitioner would submit that the StateGovernment in General Administrative Department (‘GAD’) issued a2 / 8 18-WP-460-24.odtGovernment Resolution dated 20th May, 2011 whereby equivalence has beengiven to the candidates completing preparatory course and first year ofgraduation from YCMOU, with the Secondary or Higher SecondaryExamination, as the case may be.Learned counsel would further submit that the petitioner hadapproached this Court in Writ Petition No. 6958 of 2021. The said writpetition was disposed of vide order dated 08th September, 2023 with theconsent of the parties. Vide the said order, communications dated 9th/15thMarch, 2021 and 28th May, 2021 were set aside. One of thosecommunications i.e. 9th/15th March, 2021 speaks about granting equivalenceand five marks therefor. According to learned counsel, since RespondentNo.2 withdrew those communications, now cannot be allowed to turn aroundand to rely on the same. He has also relied on the Full Bench Judgment ofthis Court passed in Writ Petition No. 6752 of 2021 (Vishnu RambhhajiHarishchandre Vs. Bar Council of India and Others), to ultimately urge forallowing the writ petition.6.Learned counsel for respondent – Zilla Parishad would submit thatworking as Asha worker or Group Facilitator cannot be termed as a servicewith government. He would submit that they were like volunteers and paidcertain amount towards service rendered by them. According to him, therecruitment would be in terms of either rules or the scheme prescribed3 / 8 18-WP-460-24.odttherefor. He relied on the scheme whereunder allocation of marks has beenspelt out. We have referred to same hereinabove. In support of hissubmission he relied on the the judgment of the Supreme Court in case ofShifana P.S. Vs. State of Kerala and Ors., AIR 2024 SC 3724.He would further submit that the government resolution issued byGAD has no application since under the scheme itself the marking pattern hasbeen given. He meant to say that the system is self-contained and nothingcould be searched outside thereof. He, therefore, urged for dismissal of thewrit petition.7.Learned counsel for Respondent No.6 would submit that thepetitioner cannot be allowed to be reinstated in the service. He has relied onthe judgment of Patna High Court in case of Rita Kumari Vs. State of Biharand Ors. in Civil Writ Jurisdiction Case No. 12764 of 2014 to submit that therecruitment took place in accordance with the guidelines.8.Learned counsel would further submit that the petitioner has noright to any post. She, therefore, cannot claim any vested right. He wouldfurther submit that although the writ petition was allowed with the consentof the parties, a window was kept open to decide the matter afresh. Meaningthereby a relook at the matter was expected and those communications werenot without having been given effect to.4 / 8 18-WP-460-24.odt9.We have considered the submissions advanced. Perused thedocuments on record.10.The post of Block Facilitator was to be filled-up from amongsteligible Asha workers. At the relevant time, both, the petitioner andRespondent No.3 since were working as Asha workers, applied for the post ofBlock Facilitator. Both of them alongwith others were interviewed. Thepetitioner secured highest marks and was, therefore, given appointmentorder. She even worked on the said post for little over three years. We arenot in agreement with learned counsel for the respondent that it is not aservice. True, it may not be a permanent service or employment. The fact,however remains that the candidate selected to work as Block Facilitator wasexpected to render certain job for which he is to be paid in terms of money.This is nothing short of service rendered by such a candidate.11.The petitioner, although not completed HSC examination, haspassed preparatory examination of YCMOU and first year of Arts stream. Shehas also completed graduation from the very stream, whereas RespondentNo.6 passed HSC first and then graduated from Arts stream. The governmentin GAD issued a government resolution. Clause (1) thereof reads as under :-“T;k inkaP;k lsokizos’k fu;ekr 10oh @ 12oh (ek/;fed @ mPp ek/;fed)ijh{kk mRrh.kZ vl.ks v’kh fdeku vgZrk fofgr dsysyh vlsy R;k ckcrhr]egkjk”V~ jkT; f’k{k.k eaMGkph ek/;fed o mPp ek/;fed ‘kkykar ijh{kk mRrh.kZ5 / 8 18-WP-460-24.odtulysyk ek=] ;’koarjko pOgk.k eqDr fo|kihBkph iwoZ ijh{kk mRrh.kZ gksmuinoh ijh{ksps izFke o”kZ mRrh.kZ >kysyk ok ;’koarjko pOgk.k eqDr fo|kihBkrwuinoh /kkj.k dsysyk mesnokj ik= let.;kr ;kok-”Close reading of the said clause would indicate that the candidatepassing preparatory examination and the first year of graduation would betreated equal to that of the candidate who has passed HSC examination. Inshort, passing of preparatory examination and first year of graduation fromthe Open University has been given equivalence of HSC. In the constabularyin the State of Maharashtra, the said equivalence was treated and thecandidates who have studied from the Open University were treated at parwith the candidates who passed 10th or 12th standard examination held by theSecondary or Higher Secondary School Board.12.In the case in hand, at first, the petitioner has been granted fivemarks for HSC since her qualification was at par with the same. It was onlyon the complaint made by Respondent No.6, the matter was reviewed andfive marks granted to her were withdrawn. A hearing took place wherein thepetitioner and the respondents participated and since five marks given to thepetitioner were withdrawn, her appointment was cancelled.13.In our considered view, when the State of Maharashtra itself treatsthe candidates, who passed preparatory examination and first yeargraduation from the Open University, as equal to clearing HSC examination,6 / 8 18-WP-460-24.odtthere ought not to have any discrimination in allotting the marks. A candidatepossessing HSC examination certificate and a candidate holding equivalencewould be entitled to equal marks. It is true that there may appear someanomaly because a candidate not from Open University, who has donegraduation, was required to give an undertaking to have completed threeyears course post 12th standard examination whereas a candidate from OpenUniversity gets equivalence to HSC on passing preparatory examination andfirst year of graduation. The very candidate, who completes graduation afterpassing next two years examination would again be entitled for five marks.We, however cannot say anything in that regard, since graduation from OpenUniversity and the same degree from any other university are at par, bothwould be entitled for equal marks.14.Since the petitioner had qualification equivalent to HSC, fivemarks granted to her ought not to have been withdrawn. Since the petitionercleared the examination equivalent to the HSC and then graduation, she wasentitled to five marks each on those counts. In view of the same, the orderimpugned herein terminating the petitioner’s services after withdrawing fivemarks on account of HSC, needs to be set aside.15.We have considered the facts in the case of Rita Kumari (supra)relied on by learned counsel for Respondent No.6. The petitioner therein had7 / 8
Decision
18-WP-460-24.odtsecured more marks. In view of the same, we find the said authority to haveno application to the facts and circumstance of this case.16.In view of above, the petition is allowed. The petitioner bereinstated in the service. However, we are not inclined to grant her backwages. Appointment of the petitioner was for a limited duration. She maybe appointed for the remainder thereof. Since Respondent No.6 has occupiedthe position, on her request, operation of this order stands stayed for nexteight weeks.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD8 / 8