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2014 Supreme(Bom) 54
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.P. BHANGALE, JJ.
Tikeshkumar
Versus
District Selection Committee & Others
Misc. Civil Application No. 645 of 2012 & Writ Petition No. 5897 of 2011
Decided on: 10-01-2014
For the Applicant:A.Y. Kapgate, Advocate.
For the Respondents:R1 & R6, M.N. Hiwase, AGP, R3 & R4, Anoop Parihar, Learned Counsel, R5, S.K. Pardhy, Advocate.
Headnote:Constitution of India - Article 16 - Appointment. - Where respondent had requisite qualification in English as well as Hindi Literature whereas petitioner had only in Hindi therefore appointment of respondent to post of Shikshan Sevak on ground of better suitability, justified. - The Selection proceedings placed on record as Annexure II with review petition are disputed only because the same are not signed by Smt. Jha. In review petition, it is nowhere stated that Smt. Jha was not present during said proceedings. It is also not stated that the proceedings have been written subsequently. The reasons given by respondent No. 6 (present incumbent) for absence of signature of Smt. Jha, are also not challenged. By the time the minutes of selection proceedings dated 13.9.2010 were received by the office of respondent No. 6, Smt. Jha had retired. The Collector, who is the Chairman of the District Selection Committee, the Chief Officer of Municipal Council, who acted as the Secretary of the said Committee, have placed their signatures without mentioning any date. At the top of the proceedings, it is mentioned that the interviews were conducted on 13.9.2010 and 14.9.2010. Against Subject No. 4, a communication dated 18.9.2010 on the aspect of strength of students is also mentioned. The review applicant is relying upon the signature of Special District Social Welfare Officer, Gondia. The said signature is placed by him on 18.7.2011. These facts, therefore, show that there was some delay in writing proceedings, however, the said delay by itself is not fatal in the absence of any allegations of mala fides or interpolation. The review petitioner nowhere submits that Smt. Jha was not present in the meeting of selection committee.
Constitution of India - Article 16 - Selection proceedings for appointment. - In absence of any allegations of mala fides against appointing authority, mere delay in putting signature on selection proceedings document, cannot vitiate selection proceedings. - The perusal of the advertisement shows that the Shikshan Sewak to be selected against the post at Sr. No. 3 with which this Court is concerned, was to teach Social Sciences/Hindi/English to class VIII to X in Hindi medium. The important provision about selection procedure given in clause (xii) of the advertisement needs to be viewed in this background. It stipulates that the Merit list of the applicants shall be prepared as per written marks obtained in B.Ed. examination by them and a select list of candidates securing more marks at B.Ed. shall then be prepared. It also states that interview process shall not carry any marks. Thus, this clause itself contemplates two types of lists viz. merit list and-select list. The requirement was of a Teacher having qualification either in Social Sciences or Hindi or English. The facts above clearly show that neither the petitioner nor respondent No. 5 possess the qualification in Social Sciences. Respondent No. 5 possess necessary qualifications in Hindi Literature as also in English Literature and is, therefore, eligible to teach Hindi and English to the concerned standards. This Court, on 20.4.2012, in writ petition did note qualifications prescribed in the advertisement and also observed the same to be rather confusing as advertisement stated that for mediums, English and Hindi Literature both was essential. Nobody took care to explain the same and petitioner also did not seek any amendment in writ petition to assail that stipulation. Even, in review there is no such effort. Thus, when post at serial number 3 in the advertisement was for a Shikshan Sevak to teach in Hindi Medium, the advertisement expected aspirant like Review-petitioner to posses qualification in both the literature i.e. Hindi as also English Literature. The petitioner does not possess qualification in English Literature. The petitioner and respondent No. 5 are, therefore, not similarly situated and an occasion to find out one who scored more marks in written part of B.Ed. examination between the two, did not arise. The affidavit filed by the Municipal Council on 27.4.2012 in writ petition disclosed that the District Selection Committee found respondent No. 5 a better candidate as she, in addition to English Literature & Hindi Literature is also having Sociology as one of the subjects during B.A. degree course. Time Table on record does not show that respondent No. 5 is engaging any Social Science class & hence, the dispute about better competency or eligibility to teach said subject being raised by the Review petitioner is not decisive here.
B.P. Dharmadhikari, J.
Heard Shri Kapgate, learned counsel for the review applicant/ petitioner, Mrs. Hiwase, learned AGP for respondents No. 1 & 6, Shri Parihar, learned counsel for respondents No. 3 & 4 and Shri Pardhy, learned counsel for respondent No.5.
2. The original petitioner has sought the review of the order dated 30th April 2012, disposing of Writ Petition No. 5897 of 2011. In the said Writ Petition, he challenged the selection and appointment of Respondent No. 5 on the post of Shikshan Sevak on the ground that she has secured less marks in B.Ed. Examination. He sought an appointment order in his favour in terms of advertisement dated 30th July 2010. Respondent No. 4 before this Court is employer – Municipal Council while respondent No. 3 is the School. Respondents No. 1, 2 & 6 are the members of District Selection Committee, who completed selection process.
3. The review is sought on the ground that the review petitioner has obtained 61.67% marks in B.Ed. Examination while Respondent No. 5 secure only 61.17% marks. The other ground for review is, the statement that the petitioner has not studied Social Sciences at B.A. level is incorrect inasmuch as his mark sheet shows that he has studied History and Political Science at Graduation level. The third ground is the reason that Respondent No. 5 has studied Sociology for graduation is not relevant because not passing B.A. with Social Science as one of the subjects is not the reason given by the District Selection Committee for not selecting the petitioner and its affidavit in Writ Petition filed on 25.04.2012 was, therefore, unsustainable. It is submitted that the rejection of the petitioner was on the ground that he did not study Sociology. The forth reason given is alleged instructions by Respondent No. 6 that candidate to be selected should hold qualification of Literature in Hindi as also English. It is contended that if this reason is accepted and advertisement is read accordingly, absurd results follow. It is further pointed out that Respondent No. 6 has not signed proceedings of District Selection Committee. It is also stated that Special District Social Welfare Officer, Gondia, has placed signature on 18.05.2011 i.e. almost eight months after the selection proceedings.
4. In this background, Shri Kapgate, learned counsel for the petitioner has invited our attention to advertisement dated 30th July 2010 to urge that as disclosed therein, selection needed to be only on the basis of marks obtained in written examination held for B.Ed. degree. The petitioner/ review applicant is Graduate with Hindi Literature and, therefore, fulfilled the requirements and as he has more marks than Respondent No. 5, he needed to be selected. Our attention has also been drawn to various orders passed by this Court in Writ Petition, from time to time till the impugned order dated 30th April 2012, of which review is sought. Even the orders passed in present proceedings and affidavits filed are pressed into service with contention that there is change in the stand of the Education Officer.
5. Mrs. Hiwase, learned AGP appearing for respondents No. 1 & 6 has relied upon the reply affidavit. On its basis, she points that Respondent No. 6 had suggested giving importance to Literature as per advertisement dated 30th July 2010. It is further pointed out that by the time the minutes of District Selection Committee were received by the office of Respondent No. 6 for signature, incumbent Smt. Jha had already retired and hence her signature could not be obtained. It is further pointed out that in High School, subject Sociology is not taught. A candidate with qualification of B.A. in English or Hindi or Social Sciences was entitled to be considered for the post & Review Applicant, being more meritorious, should have been appointed.
6. Shri Pardhy, learned counsel appearing for respondent No. 5 is strongly opposing the prayer for review. He states that after appreciating all relevant facts
