Dismissed

Dr. Koustubh Kamlakar Mench v. Maharashtra Public Service Commission, through Secretary and Ors.

Bombay HC22 Sept 2014WP/11390/2013

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging the appointment of Dr. Shivprasad Hiragade as Associate Professor. The Bench held that nominated lecturers could qualify for experience claims and declined to reappreciate evidence already examined by the Tribunal.

What did the court decide?

Writ petition dismissed; rule discharged; no order as to costs; interim relief rejected.

Dr. Koustubh Kamlakar Mench Vs Maharashtra… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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WRIT PETITION NO. 11390 OF 2013

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Dr. Koustubh Kamlakar Mench ... Petitioner V/s. Maharashtra Public Service Commission & others ... Respondents

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Mr. Y.S. Jahagirdar, Sr. Counsel i/b T.S. Ingale for the petitioner.

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Mr. Vishal Thadani, AGP for respondents 1, 2 and 4. Mr. N.P. Dalvi for respondent no.3.

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CORAM : NARESH H. PATIL AND B.P. COLABAWALLA, JJ .

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RESERVED ON: 4^th September , 2014. PRONOUNCED ON: 22^nd September , 2014.

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JUDGMENT (PER NARESH H. PATIL , J)

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Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

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The petitioner challenges selection and appointment of respondent no.3

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Dr. Shivprasad Tukaram Hiragade as Associate Professor. By an advertisement

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no.308/2012 dated 19th October, 2012 the Maharashtra State Public Service

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Commission (hereinafter referred to as 'MPSC' for short) issued an advertisement for filling in posts of Associate Professor, General Surgery. The educational qualification required for the said posts was M.S. (Surgery)/M.S. (General Surgery). Against the experience clause the condition mentioned in the advertisement reads as under:

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“ Experience of teaching as Assistant Professor/Lecturer in the subject concerned for five years in the recognised medical college/teaching institution.”

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During the course of hearing it was submitted that around 77 persons applied. The MPSC shortlisted 38 persons and a select list of 11 deserving candidates was prepared. The respondent no.3 was the topper in the select list. Admittedly, the petitioner did not find place in the select list. The respondent no.3 was accordingly selected/appointed as an Associate Professor.

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The petitioner filed Original Application No. 286/2013 challenging the selection and appointment of the respondent no.3 on the substantive grounds (a) the respondent no.3 did not possess experience required for selecting the candidate as Associate Professor, (b) The respondent no.3 was at the relevant time working as medical officer with the respondent no.2-Rajashri Chhatrapati Shahu Maharaj Government Medical College, Kolhapur. The medical officer's post is an administrative post, therefore, even if the respondent no.3 was allowed

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to discharge duties as lecturer, he could not be considered as Assistant Professor for participating in the selection process (c) the government resolution issued in the year 2003 is not applicable to the facts.

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The contesting respondents filed replies before the Tribunal. By judgment

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and order dated 28^th November, 2013 the Tribunal dismissed the Original Application no. 286/2013.

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The learned Senior Counsel appearing for the petitioner submitted that respondent no.3 was appointed as a medical officer with the respondent no.2. As respondent no.3 was holding administrative posts, he could not be considered as Assistant Professor for participating in the selection process. As a medical officer the respondent no.3 had no experience of teaching as an Assistant Professor. The respondent no.3 failed to establish by cogent and reliable evidence that he acted as an Assistant Professor and discharged his duties as such. In the facts of the case the Government Resolution dated 13th May, 2003 was not applicable to the facts. Considering these exigencies of the situation by way of stop gap arrangement the State had issued the said Government Resolution which would not entitle the respondent no.3 to participate in the selection process. In case the selection of respondent no.3 is allowed to be held to be valid then it would lay down a bad precedent which would not be in the

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interest of administration, according to learned Counsel. A medical officer cannot straightway be appointed as an Associate Professor. As regards the procedure adopted by the MPSC, the learned Senior Counsel submitted that the MPSC failed to verify from the State the certificates produced by respondent no.3. It was obligatory on the part of MPSC to verify from the State as to whether respondent no.3 had an experience of teaching as an Assistant Professor/Lecturer in the subject concerned for five years. The learned Counsel submitted that even if the petitioner was not shown to have been placed in the select list, he was entitled to challenge the selection and appointment of the respondent no.3. The learned Senior Counsel appearing for the petitioner submits that the certificate issued by the Dean in favour of respondent no.3 and the document showing alleged appointment and experience of respondent no.3 are doubtful and do not inspire confidence.

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The learned Senior Counsel appearing for the petitioner places reliance on the judgment in the case of State of Bihar & ors. v/s. Dr. Asis Kumar Mukherjee & others (1975) 3 SCC 602 . Paragraphs 15 and 19 of the judgment read as under:

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" 15. We agree that the bald expressions 'teaching experience' and 'teaching institutions' with blurred contours have been at the root of

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the controversy but, as Denning, L.J. in Seaford Court Estates Ltd. v Asher observed:

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When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it. they would have straightened it out? We must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

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We take the cue from these observations in the construction we have adopted above."

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"19. The simple question is whether a Registrar, like the petitioner, did or could acquire teaching experience. On the language of those documents there is some marginal doubt, in the sense that he is stated to have 'participated' or 'assisted' in teaching. The contention of the other side naturally is that 'assisting' or 'participating' is different from 'actual teaching' While we are hesitant to swallow such a contention it is not for us to finally pronounce on it, the matter being essentially a technical one. Indeed we have restrained ourselves from finally stating whether the institutions in which Dr. Mukherjee has worked are teaching institutions and whether the Registrar's post in which he worked gave him such teaching experience. These two matters have to be decided by the appointing authority. Courts cannot and do not appoint petitioners to posts they claim but lay down the legal criteria and give the correct directions, the Executive being the organ of State to exercise the power to appoint but in conformity with the legal

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directions. The State Government being that authority has to take the ultimate decision."

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Reliance is also placed on the judgment in the case of the Regional Institute of Medical Sciences & anr. v/s. S. Bhagyabati Devi {(2007) 10 SCC 504 . Paragraphs 21 and 22 of the judgment read as under:

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21. The Rules provide for creation of teaching posts as well as non-teaching posts. The Registrar Grade as defined in Rule 3(D) includes Medical Officer, both teaching and non-teaching. Before the High Court as also before us, RIMS has not produced any duty chart for the Medical Officers (SPM). From the documents whereupon reliance has been placed, it only appears that the Medical Officers (SPM) are required to take classes once in a while. Dr. Taruni was not, therefore, required to take classes on a regular basis. For the purpose of arriving at a conclusion as to what would be the nature of the post held by the incumbent, the duties attached to tWP830711594he post would be of seminal importance. The Rules do not provide for the nature of duty attached to the Medical Officer (SPM). No other document in

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that behalf has also been brought on record. Even whether preventive medicine is taught or not as a subject has not been disclosed. Performing a teaching job once in a while or working as a Demonstrator once in a while, could not render the non-teaching post to a teaching post. The RIMS might have thought that the post of Medical Officer (SPM) is a teaching post, but when a challenge was thrown by Dr. Bhagyabati, it was obligatory on its part to establish its

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contentions by placing cogent materials before the High Court. It has utterly failed to do so. The correspondences exchanged by and between the RIMS and Medical Council of India are also of no assistance. Clarification was asked for in that behalf only in 2004. The Medical Council even in its response to the said letter did not say that Medical Officer (SPM) would be a teaching post, it merely laid down the norms in regard to the strength of the cadre. Even the strength of the cadre was determined only in 2005.

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22. Which post would be a teaching post is a question of fact. In Rajasthan Public Service Commission v Kaila Kumar Paliwal this Court held (SCC p.267, para 23)

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"We are not oblivious of the fact that the question as to whether a person fulfils the criteria of teaching experience or not would depend upon the rules operating in the field. When the rules are clear and explicit, the same has to be given effect to. Only in a case where the rules are not clear, the candidate concerned must place adequate material to show that he fulfils the requisite qualification. {See State of Bihar and Another v Asis Kumar Mukherjee}

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The learned Counsel appearing for respondent no.3 submitted that petitioner has no locus standi to challenge his selection and appointment as an Assistant Professor. The petitioner does not find place in the select list of 11 persons. Instead the respondent no.3 is first amongst the select list of 11 candidates. The petitioner shall not be permitted to raise challenge to the

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appointment of respondent no.3. In the facts of the present case, the petitioner and respondent no.3 both were discharging duties in the same college i.e. respondent no.2 herein. The learned Counsel submitted that for the first time, the petitioner is raising doubt in respect of certificate issued by the Dean of respondent no.2 College (page-61). Before the Tribunal the petitioner did not raise any such ground regarding the genuineness and/or authenticity of the certificate issued by the Dean. On merits the learned Counsel submits that subject advertisement does not specifically require that the applicant should have been regularly appointed as an Assistant Professor in the strict terms of provisions of law. Under the Government Resolution dated 13^th May, 2003 (page 144) the State Government had permitted the appointment of deserving persons as Assistant Professor. The Dean was permitted to nominate such persons and in case such persons were not available then permission was granted to recruit such persons on contract basis. The respondent no.3 was notified as Assistant Professor/lecturer and was discharging his duties as such from the year 2001 to 2011 according to learned Counsel. It is submitted that the ground (k) raised in the memo of the petition has been raised for the first time before this Court. The said ground is baseless and cannot be countenanced in view of appropriate reasons recorded by the Tribunal. The learned Counsel submits that the petitioner has been selected and appointed as an Associate Professor. In the facts of the case, the appointment of the petitioner shall not be disturbed.

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The learned Counsel for the respondent places reliance on the judgment in the case of Archana Chouhan Pundhir v/s. State of M.P. {2011- LAWS(SC)-1-

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14} . In Paragraph 10 it is observed as under:

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A conjoint reading of the above reproduced rules makes it clear that only those candidates were eligible to apply for admission as "in-service candidates", who had completed 5 years service as Medical Officer in the Public Health and Family Welfare Department as on 30th April of the year of examination i.e. 2007. A Medical Officer serving on contract basis was not eligible to apply as an "inservice candidate", but if the services of such an appointee were regularised, then the experience gained by him/her by working on contractual basis was required to be taken into consideration for the purpose of selection."

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The respondents 1, 2 and 4 have filed separate affidavits-in-reply. Respondent no.1 MPSC contended in the reply that a shortlisting criteria was adopted requiring an experience of seven years and four months. The deponent further contends that at the time of interview the respondent no.3 produced appropriate experience certificate. He did well in the interview and, therefore, he was recommended for the said post by the Commission. According to the MPSC, State Government is the appropriate authority to verify the correctness and authenticity of the certificates submitted by the candidates.

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In the affidavit-in-reply filed by respondents 2 and 4, Mr. Dashrath Kothule, the deponent contends that the respondent no.3 was nominated as MPSC candidate on the post of Assistant Professor or Lecturer (surgery) in Government Medical College, Kolhapur from 25^th November, 2010. Accordingly, Dean Government Medical College, Kolhapur issued order. It was mentioned in the order that respondent no.3 was being relieved from the post of medical officer to join as an Assistant Professor or Lecturer at Rajashri Chattrapati Shahu Maharaj Government Medical College, Kolhapur. In the declaration form the respondent no.3 mentions his teaching experience. The deponent contends that if the respondent no.3 fulfills the required qualification for the post of Associate Professor as per the recruitment rules, then only the Government would issue appointment orders in favour of respondent no.3. The deponent further contended that respondent no.2 issued experience certificate from time to time stating therein that respondent no.3 was working as Lecturer at Government Medical College, Kolhapur from 1^st December, 2001.

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The respondent no.3 places reliance on the certificate issued by Dean (page-61 of the paper book) and the declaration form (pages 64-67), Dy. Registrar’s communication to the Dean, R.C.S.M. Government Medical College dated 24^th February, 2007 (page-87) wherein respondent no.3 is shown as Lecturer in General Surgery with effect from 1^st December, 2001 onwards.

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Before the Tribunal Mr. Madhukar Pundlik, Dean, Rajashri Chhatrapati Shahu Maharaj Government Medical College, Kolhapur filed affidavit (page-107).

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We have perused the impugned judgment and order and the judgments cited supra and considered the submissions advanced.

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We have noticed in number of matters while the MPSC proceeds to issue advertisement for a particular post, starts selection process and completes the same, the necessary policy decisions taken by the State in respect of the various issues concerning recruitment and filling up of the said posts are not placed with the MPSC. The candidates/persons applying must be informed fairly regarding the essential requirements for participating in the selection process. The MPSC ought to go through the relevant government resolutions issued in respect of the concerned subject matter. If necessary, the MPSC shall also refer to such government resolutions in the advertisement which ultimately would be considered while selecting a person and recommending for consequential appointment to the State. We have noticed that the communication gap between the MPSC and the State results into unnecessary litigation and at the expense of valuable time at various levels and forums, resultantly the administration suffers.

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On behalf of petitioner it was canvassed that certain documents on which

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respondent no.3 has placed reliance are not genuine and must have been fraudulently obtained, though on behalf of respondent no.3 it is strongly objected. The Government Resolution authorises the responsible authorities to nominate deserving persons to be an Associate Professor/Lecturer. During the course of hearing it was informed that State Government had started two medical colleges at Kolhapur and Nanded. There was shortage of teaching staff and considering the exigencies of situation the State Government had issued a GR dated 13^th May, 2003. The Respondent no.3 has placed reliance on certain documents/certificates to show that though he was appointed as a medical officer, he discharged duties as a lecturer for more than ten years under the permission granted by the responsible authorities including the Dean of the college. The certificate to the said effect was issued by the Dean. Reliance is placed on communication made by the Dy. Registrar and the list of the professors maintained by the college wherein respondent no.3 was shown as Lecturer.

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Reading the experience clause in the subject advertisement, it does not specifically mention that applying candidate must have been a regularly appointed Assistant Professor in the strict terms of the procedure laid down for selecting/appointing a candidate as an Associate Professor/lecturer in the college. In the facts of the case we are inclined to read the experience clause as mentioned in the advertisement. But the facts remains that the applying person must have

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teaching experience as an Assistant Professor/lecturer for minimum period of five years. The objection raised by the petitioner is that the respondent no.3 could not have been considered as an Assistant Professor or lecturer as he was discharging his duties as a medical officer. In other words, even if the State authorities, College authorities or the Dean had permitted the respondent no.3 to discharge duties as a lecturer, the same would not qualify respondent no.3 to claim that he was Assistant Professor or lecturer.

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In the facts of the case and in view of the Government Resolution dated 13th May, 2003 which is crucial for deciding as to whether the respondent no .3 in fact discharged his duties as an Assistant Professor/lecturer by nomination, certain documents were produced by the respondent no.3 in support of his contentions. The respondent-State had filed affidavit-in-reply making it clear that if the respondent no.3 fulfills the required experience to the posts of Assistant Professor as per the recruitment rules then only the State Government would issue appointment order. We find this stand of the State Government to be reasonable one in the facts of the present case.

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Considering the purport of Government Resolution dated 13^th May, 2003,

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the contentions raised by respondent no.3 are required to be favorably considered. He has placed on record sufficient documents to demonstrate that

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he had discharged his duties as a lecturer. The Tribunal had gone through the entire documentary evidence.

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The questions raised by the petitioner in respect of authenticity of these documents require investigation into disputed questions of facts. As the Tribunal had addressed these issues, we are not inclined to have a re-look and reappreciate the said evidence in exercise of writ jurisdiction.

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In the facts of the case, it would be a material circumstance to demonstrate that the petitioner did not find place in the select list of 11 persons prepared by the MPSC. We do not find any perversity in the view adopted by the Tribunal, neither any compelling reason to interfere into the impugned judgment and order passed by the Tribunal. For the reasons stated above, the writ petition is dismissed. Rule is discharged. There shall be no order as to costs.

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(B.P. COLABAWALLA, J.) (NARESH H. PATIL, J.)

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L.S. Panjwani, P.A.

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After pronouncement of the judgment, learned Counsel Mr. T.S. Ingale appearing for the petitioner submitted that interim-relief granted earlier be

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continued for two weeks. Learned Counsel appearing for respondents opposed the prayer.

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In the facts of the case, we are not inclined to continue the interim-relief.

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The prayer stands rejected.

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(B.P. COLABAWALLA, J.) (NARESH H. PATIL, J.)

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L.S. Panjwani, P.A.

Dr. Koustubh Kamlakar Mench v. Maharashtra Public Service Commission, through Secretary and Ors.

Case brief

What is this about?

What did the court decide?

Dr. Koustubh Kamlakar Mench v. Maharashtra Public Service Commission, through Secretary and Ors.

Case brief

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What did the court decide?

What the court decided

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