WP 5314-24 (J).doc v. The Secretary,State of Maharashtra, Higher & Technical Education Department

WP 5314-24 (J).docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIRCUIT BENCH AT KOLHAPURCIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 5314 OF 20241)Pallavi Vijaykumar Shelke Patil,Age: 35 yrs, Occu: Lecturere,R/at: Advocate Vijaykumar Shelke, Bhagirathi Niwas, Thodga Road, Oppo. Ravindranath Tagore School, Ahmedpur, Dist. Latur.]]]]]]]2)Ganesh Chandrakant Falle,Age: 35 yrs, Occu: Executive MerchandisingR/at: Ganeshnagar, Post- Mallewadi, Tal. Miraj, Dist. Sangli]]]]3)Sunil Ramchandra Pakhandi,Age: 35 yrs, Occu: Service,R/at: Nandani Road, JaysingnagarJaysingpur, Tal. Shirol, Kolhapur-416101]]]]...PetitionersVersus1)The Secretary,State of Maharashtra, Higher & Technical Education Department,R/at: Dalan No. 441, 4th Floor, Mantralaya, Mumbai-32]]]]]2)The Secretary,Maharashtra Public service Commission,R/at: Karyasan no. 5th, 7th & 8th Floor,Cooperage, Mumbai-01]]]]3)The Director, Directorate of Technical Education,R/at: Maharashtra State, Mumbai-01,]]]4)The Chairman/ Member Secretary,All India Council for Technical Education,R/at: Nelson Mandela Marg, Vasant Kunj,]]]Patil-SR1 of 15 WP 5314-24 (J).doc New Delhi-110070]5)The Registrar, Shivaji university, Kolhapur.]]6)Textile and Engineering Institute, Dattajirao Kadam Technical EducationSociety, Ichalkaranji.]]]...Respondents——————Mr. Yuvraj Narvankar, Mr. Rahul Patil and Mr. Raufa Shaikh for the Petitioner.Mr. V. M. Mali, AGP for the Respondent-State.Mr. Digambar Jadhav i/b Mr. Ashwin Kapadnis for the Respondent No.4 (AICTE).—————— Coram : Sharmila U. Deshmukh & Neeraj P. Dhote, JJ. Reserved on : August 20, 2026. Pronounced on : August 28, 2026.JUDGMENT : ( Per Sharmila U Deshmukh J) : 1.Rule. Rule made returnable forthwith and taken up for finaldisposal. 2.The present Petition impugns the judgment and order dated 5thFebruary, 2024 passed by the Maharashtra Administrative Tribunal (forshort, “MAT”) rejecting Original Application No. 52 of 2019 (for short“O.A”). The O.A. was filed by the present petitioner challenging thedeclaration dated 5th July, 2018 issued by Maharashtra Public ServiceCommission (for short, “MPSC”) terminating the process of selectioninitiated vide advertisement No. 85 of 2013 for the post of Lecturer inDress Designing and Garment Manufacturing declaring that none of thecandidate was found to be eligible in view of GovernmentPatil-SR2 of 15 WP 5314-24 (J).doccommunication dated 8th December, 2017 received by MPSC. 3.In the year 2013, MPSC issued advertisement for the post oflecturers in the course of Dress and Designing and GarmentManufacturing. The prescribed qualification was Bachelor’s degree inengineering/ technology in the relevant branch with first class orequivalent degree. The advertisement was issued for filling up twentyone posts, out of which fifteen posts were advertised to fill the backlog,and out of remaining six posts, four posts were available for opencategory including one post of horizontal resolution for women. Theadvertisement specified that the equivalence would be considered inaccordance with the Government Resolution (for short “GR”) dated 6thMay, 2013. The Petitioners possess the degree of “Bachelor of TextileExamination in the Branch of Fashion Technology”. The degree coursecompleted by the Petitioners is approved by All India Council forTechnical Education (for short, “AICTE”). 4.On 7th January, 2015, MPSC published list of eligible candidates,and Petitioner No.1 was featured in the list of ineligible candidates. ThePetitioner No.1 filed OA No. 25 of 2015 and the response of theRespondents was that the disqualification of Petitioner No. 1 was dueto cut off marks, which in turn were based on the markings of ineligiblecandidates. MAT by its order dated 23rd January, 2015 directedRespondents to either restart the whole process or to considerPatil-SR3 of 15 WP 5314-24 (J).docPetitioner No.1 as eligible candidate. 5.The Director of Technical Education constituted a three membercommittee to verify the correctness of equivalence accorded by GRdated 6th May, 2013, which submitted a report on 16th August, 2017distinguishing the course completed by the Petitioners citing the issueof AICTE approval. The Director of Technical Education forwarded thereport dated 16th August, 2017 to MPSC, which led to declaration dated5th July, 2018 by MPSC expressing its inability to recommend anycandidate for the post of lecturer in the course of DDGM. 6.Being aggrieved by the declaration dated 5th July, 2018, thePetitioner filed OA No. 52 of 2019 in MAT, which passed the impugnedorder dated 5th February, 2024. An additional affidavit has been filed bythe Petitioners claiming that the vacancies existing on the date ofadvertisement is required to be considered and not the subsequentlychanged ratio by AICTE and accordingly, there are 18 vacancies. 7.The stand taken by the Respondent Nos. 1 and 3 in the replyaffidavit in so far as GR dated 6th May, 2013 is concerned, is that the GRdid not intend to grant automatic or blanket equivalence forrecruitment purposes without further verification of the specificsyllabus and course contents by subject experts. As there was requestfrom MPSC, by letter dated 19th January, 2016, after the publication ofadvertisement, to verify the candidates equivalence qualification, aPatil-SR4 of 15 WP 5314-24 (J).docthree-member committee was constituted which submitted its detailedreport on 16th August, 2017. The Committee observed that the degreecourses completed by the Petitioners was in Textile Technology,whereas the requirement under the advertisement was FashionTechnology, and that the degrees could not be treated as equivalent tothe prescribed qualification of Fashion Technology for the purpose ofrecruitment to the post of Lecturer in DDGM. The Affidavit furtherstates that the staffing pattern in Government Polytechnics isdetermined based on the student-faculty ratio, which is revisedperiodically, resulting in reduction of total number of sanctioned postsacross all disciplines. The Directorate of Technical Education re-evaluated the requirement and proposed that only twenty fourlecturer's posts be retained as adequate for the existing student intake,and presently all twenty four posts are filled, leaving no vacancy in thecadre of lecturer. The GR of 11th February, 2025 finalized the revisedstaffing pattern. 8.There is an additional affidavit filed by the Joint Director in theOffice of Technical Education, stating that as per AICTE notificationdated 5th March, 2010, the revised service conditions for a Lecturer inpolytechnic require persons with a B.E / B.Tech qualification in theappropriate branch / discipline. The Petitioner's degree, thoughmentions Fashion Technology, it is a bachelor's degree in Textile, andPatil-SR5 of 15 WP 5314-24 (J).doctherefore, the Petitioners are not eligible. It is stated that AICTE bycircular dated 10th November, 2020 has clarified that it does not provideequivalence for qualification, which is left to the employer to decide forconsidering suitability for a particular post. It is further stated that asper the faculty to student ratio, all posts are filled and there is novacancy to accommodate the Petitioners.9.Mr. Narvankar, learned counsel for the Petitioners would submitthat the advertisement issued in the year 2013 for the post of Lecturersfor DDGCM prescribed the qualification of bachelor’s degree inTechnology or equivalent as per the GR dated 6th May, 2013. Pointingout to the certificates of the Petitioners, he would submit that thedegree is Bachelor of Textiles in the branch of Fashion Technology, andtherefore, meets the prescribed qualification. He would submit thatthough, the advertisement made a reference to the GR dated 6th May,2013, the ineligibility of the Petitioners was considered on the basis of areport by a three-member committee dated 16th August, 2017, whichsought to override the GR dated 6th May, 2013. He submits that withoutany subjective assessment of the Petitioner's curriculum, the threemember committee has opined that the Petitioner's education is notsufficient for teaching DDGM course, and therefore, they are notqualified for appointment to the posts of lecturer in DDGM course. Hewould submit that the report is extremely cryptic and is not based onPatil-SR6 of 15 WP 5314-24 (J).docany comparative assessment of the Petitioner's curriculum. 10.He submits that novel method was invented by the Respondentsof constituting a committee to consider the equivalence. He wouldfurther submit that the Petitioners are teaching the same DDGM courseon a clock-hour basis and points out to the temporary appointmentorders. He would further submit that the notification dated 28th April,2017 by AICTE specifically states that the relevant qualifying degreesshould be notified at the time of the advertisement of the post. Hewould further point out that the notification provides for the majordiscipline of technology to the Textile Engineering with a correspondingcourse including Fashion Technology and the relevant nomenclature ofundergraduate degree engineering/technology. He would furthersubmit that as per the approval process by the AICTE, the approval isgranted for the program of Engineering and Technology with the courseof Fashion Technology. He draws support from the decision of theHon'ble Apex Court in the case of N. T. Devin Katti v. Karnataka PublicService Commission1, which directs that in event there is no vacancy,the State Government to create supernumerary post for appointmentagainst those post. He submits that assuming that there are novacancies, a direction can be given to create a supernumerary post forappointment of Petitioners, who are qualified to the said appointment.1 (1990) 3 SCC 157Patil-SR7 of 15 WP 5314-24 (J).doc11.Per contra, learned AGP would submit that the GR dated 6th May,2013 is part of the advertisement, and it provides that in the course ofDDGM, the equivalent degree is DDGM or Apparel Manufacturing, andDesign or Garment Manufacturing or Fashion Technology. He submitsthat the Petitioner is not possessing degree in Fashion Technology, butis holding Bachelor of Textile degree. He submits that considering thecourse required to be taught, the requirement was of a degree inFashion Technology. He would submit that even if the report of thecommittee is ignored, the Petitioners even otherwise, do not qualify asthey do not hold a degree in Fashion Technology. He would furthersubmit that the Hon'ble Apex Court in Civil Appeal No. 4597 of 2019 hasheld that the essential qualifications for appointment to a post are forthe employer to decide, and the Court cannot lay down conditions ofeligibility, much less can it delve into the issue with regard to desirablequalification being at par with the essential eligibility by interpretativerewriting of the advertisement. 12. He submits that the position that exists today is that there is novacancy to accommodate the Petitioners, and due to rearrangement ofposts, the sanctioned posts as per previous norms of AICTE havebecome excess, and the process to transfer the lecturers working on theexcess post is underway. He submits that the reliance on theadvertisement given by the principals of two Government PolytechnicsPatil-SR8 of 15 WP 5314-24 (J).docto teach on clock-hour basis is stopgap arrangement to carry outteaching work till the regular facilities are not transferred to thePolytechnic. He submits that no case has been made out forinterference.13.We have given our thoughtful consideration to the submissionscanvassed and have perused the record.14.The Petition raises a challenge to the order of MAT, whichscrutinised the GR dated 6th May, 2013, and in particular the equivalenceand agreed with the findings of the committee that the Petitioners donot possess the required equivalence. The advertisement was issued inthe year 2013 for filling up the post of Lecturers in the course of DressDesigning and Garment Manufacturing (DDGM) amongst others. Thetotal number of posts notified for DDGM were 21 in number out ofwhich 15 posts were advertised to fill the backlog and out of balance 6posts, 4 posts were available in open category including one horizontalreservation for woman.15.The advertisement came to be terminated by MPSC videdeclaration dated 5th July, 2018 on the ground that no qualifiedcandidate was available and hence no recommendation could be made.The reply Affidavit of Respondent Nos.1 and 3 assumes significance andstates about the position of vacancies having undergone a change withpassage of time. The Affidavit sets out the staffing pattern which isPatil-SR9 of 15 WP 5314-24 (J).docdetermined based on the student-faculty ratio prescribed by the AICTEfrom time to time. For the year 2016 onwards, the student-faculty ratiois determined at 1:25. Resultantly, for the DDGM course, only 24Lecturer’s posts are retained as adequate for the existing studentintake. It is stated that all posts are presently filled, leaving no vacancy.The affidavit sets out the comparative position in paragraph 5.5 asunder:Year/PatternStudentFaculty ratioSanctionedPostsPosts filledVacantPostsRemarks2004 Pattern1:15422418Earlier patternsuperseded20251:252424NilApproved by GR11.02.202516. By the advertisement of 2013, 21 posts were advertised out ofwhich 15 were to fill the backlog. By virtue of reduction in staffingpattern, the sanctioned posts of lecturers have been reduced to 24,which as per the earlier staffing pattern of 2004, were 42. To meet thereduction in sanctioned posts, Mr. Narvankar would contend that the hevacancies existing as on the date of advertisement are required to beconsidered. The position of law states that the vacancies must be filledup on the basis of law which exists as on the date consideration takesplace. In State of Odisha v. Sreepati Ranjan Dash2, the Hon’ble ApexCourt noted the decision of State of HP v. Raj Kumar3 which had held in2 2026 SCC OnLine SC 879.3 (2023) 3 SCC 773,Patil-SR10 of 15 WP 5314-24 (J).docparagraph 83 as under: “82. A review of the fifteen cases that havedistinguished Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC284 : 1983 SCC (L&S) 382] would demonstrate that this Court has beenconsistently carving out exceptions to the broad proposition formulatedin Rangaiah. The findings in these judgments, that have a direct bearingon the proposition formulated by Rangaiah are as under:82.1.There is no rule of universal application that vacancies must benecessarily filled on the basis of the law which existed on the date whenthey arose, Rangaiah case must be understood in the context of the rulesinvolved therein. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, para26; Union of India v. Krishna Kumar, (2019) 4 SCC 319, para 10].82.2.It is now a settled proposition of law that a candidate has a rightto be considered in the light of the existing rules, which implies the “rulein force” as on the date consideration takes place. The right to beconsidered for promotion occurs on the date of consideration of theeligible candidates. [Deepak Agarwal v. State of U.P., Union ofIndia v. Krishna Kumar].82.3.The Government is entitled to take a conscious policy decisionnot to fill up the vacancies arising prior to the amendment of the rules.The employee does not acquire any vested right to being considered forpromotion in accordance with the repealed rules in view of the policydecision taken by the Government. [K. Ramulu v. S. Suryaprakash Rao, (1997)3 SCC 59, paras 12 & 13; Shyama Charan Dash v. State of Orissa, (2003) 4SCC 218, para 9; State of Punjab v. Arun Kumar Aggarwal, (2007) 10 SCC402, para 38; Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, para28]. There is no obligation for the Government to make appointments asper the old Rules in the event of restructuring of the cadre is intended forefficient working of the unit. [G. Venkateshwara Rao v. Union ofIndia, (1999) 8 SCC 455, para 4]. The only requirement is that the policydecisions of the Government must be fair and reasonable and must bejustified on the touchstone of Article 14. [Rajasthan Public ServiceCommission v. Chanan Ram, (1998) 4 SCC 202, para 15; K. Ramulu v. S.Suryaprakash Rao, (1997) 3 SCC 59, para 15].82.4.The principle in Rangaiah need not be applied merely becauseposts were created, as it is not obligatory for the appointing authority tofill up the posts immediately. [Delhi Judicial Services Assn. v. Delhi HighCourt, (2001) 5 SCC 145, para 5].82.5.When there is no statutory duty cast upon the State to considerappointments to vacancies that existed prior to the amendment, theState cannot be directed to consider the cases [Deepak Agarwal v. State ofU.P., (2011) 6 SCC 725, para 25].83. The above-referred observations made in the fifteen decisionsPatil-SR11 of 15 WP 5314-24 (J).docthat have distinguished Rangaiah case demonstrate that the wideprinciple enunciated therein is substantially watered-down. Almost all thedecisions that distinguished Rangaiah hold that there is no rule ofuniversal application to the effect that vacancies must necessarily befilled on the basis of law that existed on the date when they arose. Thisonly implies that decision in Rangaiah is confined to the facts of that case.84. The decision in Deepak Agarwal v. State of U.P. is a completedeparture from the principle in Rangaiah inasmuch as the Court has heldthat a candidate has a right to be considered in the light of the existingrule. That is the rule in force on the date the consideration takes place.This enunciation is followed in many subsequent decisions including thatof Union of India v. Krishna Kumar [Union of India v. Krishna Kumar, (2019) 4SCC 319]. In fact, in Krishna Kumar Court held that there is only a “right tobe considered for promotion in accordance with rules which prevail on thedate on which consideration for promotion takes place”.85.The consistent findings in these fifteen decisions that Rangaiahcase must be seen in the context of its own facts, coupled with thedeclarations therein that there is no rule of universal application to theeffect that vacancies must necessarily be filled on the basis of rules whichexisted on the date on which they arose, compels us to conclude that thedecision in Rangaiah is impliedly overruled. However, as there is nodeclaration of law to this effect, it continues to be cited as a precedentand this Court has been distinguishing it on some ground or the other, aswe have indicated hereinabove. For clarity and certainty, it is, therefore,necessary for us to hold:85.1.The statement in Y.V. Rangaiah that, “the vacancies which occurredprior to the amended Rules would be governed by the old Rules and not bythe amended Rules”, does not reflect the correct proposition of lawgoverning services under the Union and the States under Part XIV ofthe Constitution. It is hereby overruled.85.2.The rights and obligations of persons serving the Union and theStates are to be sourced from the rules governing the services.17.Applying the principles analogous thereto, as the law whichexisted on the date of consideration is the governing factor, the vacancyposition that exists on the date of eligibility is to be considered. In thepresent case, the advertisement is of the year 2013 and for the posts oflecturers. Considering the lapse of almost thirteen years, thePatil-SR12 of 15 WP 5314-24 (J).docproposition that vacancies must be filled up by taking into considerationthe position on date of advertisement, must be necessarily negatived.18.After termination of the advertisement by MPSC, there was no re-advertisement and no filling of posts. The decision taken by theRespondents not to fill up the advertised posts cannot be questioned.The Hon’ble Apex Court in State of Odisha v. Sreepati Ranjan Dash(supra) has held in paragraph 15 as under:“15. This Court has observed that an employee does not havea vested right to be promoted nor does he possess alegitimate expectation to be promoted (See Haryana SEB vsGulshan Lal 2009 112 SCC 231). The limited right that anemployee can legitimately claim is for consideration of hiscandidature. However, should be government, being theappointing authority choose, in its wisdom, to not fill upvacancies by promotion, especially when there is change ofcadre and restructuring of posts, it cannot be compelled tocarry out the appointments.” 19.In Shankarsan Dash v. Union of India4, the Constitution Benchwas considering the issue whether a candidate whose name appears inmerit list acquires indefeasible right to appointment if vacancyexists.The Hon’ble Apex Court held in paragraph 7 as under:“7. It is not correct to say that if a number of vacanciesare notified for appointment and adequate number ofcandidates are found fit, the successful candidates acquire anindefeasible right to be appointed which cannot belegitimately denied. Ordinarily the notification merelyamounts to a invitation to qualified candidates to apply forrecruitment and on selection they do not acquire any right tothe post. Unless the relevant recruitment rules so indicate, theState is under no legal duty to fill up all or any of thevacancies. However, it does not mean that the State has thelicense to act in an arbitrary manner. Th decision not to fill up4 (1991) 3 SCC 47.Patil-SR13 of 15 WP 5314-24 (J).docthe vacancies has to be taken bona fide for appropriatereasons. And if the vacancies or any of them are filled up, theState is bound to respect the comparative merit of thecandidates, as reflected at the recruitment test, and nodiscrimination can be permitted. This correct position hasbeen consistently followed by this Court and we do not findany discordant note in the decisions in State of Haryana vsSubhash Chander Marwaha, Neelima Shangla v State of Haryanaor Jatendra Kumar vs State of Punjab.”20.It further noted in paragraph 8 the decision in State of Haryanavs Subash Chander Marwaha5, where the Hon’ble Apex Court hasexpressly ruled that existence of vacancies does not give a legal right toa selected candidate and that candidates did not acquire any rightmerely by applying for selection or even after selection.21.The enunciation of law by the Hon’ble Apex Court would negatethe vested right claimed by the Petitioners to be appointed on the postsadvertised. It is open for the Respondents not to fill up the vacancies forvalid reason and in the present case, the advertisement came to beterminated and there is no re-advertisement by Respondents for fillingup the posts. With the passage of time, there has been subsequentreduction of cadre strength by application of revised student-facultyratio and resultantly there is a bona fide decision not to fill up theadvertised post. The staffing pattern is determined on the basis of thestudent faculty ration which is prescribed by AICTE. There is nosubmission canvassed to dispute the determination as arbitrary. The5 (1974) 3 SCC 220.Patil-SR14 of 15 WP 5314-24 (J).docPetitioners cannot insist on vested right to the advertised post despitethe reduction of sanctioned posts of lecturers. 22.As there is bona fide reduction of cadre and no vacancy in theposts of sanctioned lecturers for DDGM course, the entire issue ofwhether the Petitioners’ qualification satisfies the equivalence testunder the GR of 6th May, 2013 has been rendered academic. In so far asthe appointment on supernumerary posts is concerned, the same is anexception rather than rule. Considering the reduction in cadre, we donot find any exceptional necessity to compel creation of supernumerarypost. The decision of N.T. Devin Katti (supra) does not assist the case ofthe Petitioners. 23.In light of the above discussion, we are not inclined to entertainthe present Petition. The issue as regards the equivalence qualificationis an issue left open to be decided in an appropriate case. Resultantly,Petition stands dismissed. Rule is discharged. [Neeraj P. Dhote, J.] [Sharmila U. Deshmukh, J.]Patil-SR15 of 15