Allowed

Shaikh Feroz Abdul Majid v. the State of Maharashtra and Others

Bombay HC17 Apr 2014WP/371/2014

Case brief

AI extract

What is this about?

A writ petition challenging the dismissal of a sportsman candidate's application for police constable posts. The High Court quashed the Tribunal's order, clarifying that direct recruitment includes nomination for selection, and directed the respondent to consider the petitioner under the open Sportsman category where eligible.

What did the court decide?

The Tribunal's order of 3.12.2013 was quashed. The Superintendent of Police was directed to consider and appoint the petitioner as a Police Constable (Shipoi) from the open Sportsman category if eligi

Shaikh Feroz Abdul Majid Vs the State of… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 371 OF 2014

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Shaikh Feroz Abdul Majid Age 25 years,Occ. Educated unemployed, R/o. Nargaon, Opp. Ganpati Mandir, Kaisar Colony, Tq. and Dist. Aurangabad ...Petitioner versus 1. The State of Maharashtra Through the Secretary Home department, Mantralaya, Mumbai (Copy to be served on the Govt. Pleader, High Court of Bombay Bench at Aurangabad) 2. The Superintendent of Police, Aurangabad (Rural), The Office of S.P.(Rural) CIDCO, Aurangabad 3. Amar s/o Pandit Alanchkar, Age major, Occ. Nil, R/o. Police Colony, Behind T.V. Centre, Aurangabad ...Respondents ..... Mr. S.D. Joshi, advocate for the petitioner Mr. S.K. Kadam, A.G.P. for respondents 1 and 2 Mr. P.C. Mayure, advocate for respondent No.3 .....

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CORAM : S. S. SHINDE AND V. K. JADHAV, JJ. Date of Reserving the Judgment : 02.04.2014 Date of pronouncing the Judgment :17.04.2014

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JUDGMENT (PER JADHAV, J.) :-

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Rule. Rule returnable forthwith. By consent, heard finally.

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By this petition, the petitioner has challenged the order dated 3.12.2013 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad in Original Application No. 342 of 2013. The petitioner is also seeking directions to respondent No.2 to consider the case of the petitioner from open Sports Man category and further to appoint him from the said category for the post of police constable (Shipoi).

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Brief facts, giving rise to present writ petition are as under:-

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a) Respondent No.2 has issued advertisement on 9.4.2013 for filling up 47 posts of police constable (Shipoi). In the said advertisement, one post was shown to have been reserved for Sportsman. The petitioner being a player of squash game, has filled up the form and subjected himself for selection from open category. The entire selection process was carried out in accordance with the Recruitment Rules dated 16.6.2011 issued by the Home Department, Government of Maharashtra. The Recruitment Rules stipulate the details in respect of Age, educational and physical qualification. In the Recruitment Rules, in para 8, under caption of reservation, (i) provides that,

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the terms and conditions governing the reservation shall be in consonance with G.R. dated 30.4.2005. The Recruitment Rules speak in respect of providing 5% reservation for Sportsman category. The said G.R. dated 30.4.2005 is issued by the School Education and Sports Department, for providing 5% reservation to the Sportsman for filing up the post of A, B, C and D cadres. The said reservation shall be applicable for direct recruitment only.

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b) The petitioner further submits that, pursuant to filling up application form, he has subjected himself for physical test held on 17.5.2013 and after physical test, the names of successful candidates were published on the Notice board, alongwith the marks obtained by them. The name of the petitioner has figured in the said list. Thereafter, suddenly the respondents have appraised the petitioner that he will be considered to be belonging to O.B.C. category and that, his case cannot be considered from open category. In response to this, by submitting application on the spot, the petitioner has claimed relaxation in age, as applicable to the Sportsman, under application dated 17.5.2013.

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30.4.2005 and in particular clause 3(c) therein stating that said clause is applicable in the matter of recruitment by nomination whereas the recruitment in progress is a “Direct Recruitment’ and thus, the petitioner is not entitle to claim any relaxation of his age to the extent of five years. It is further stated that the petitioner was allowed to participate in the selection process by giving relaxation, as applicable to O.B.C. category. This order was challenged by the petitioner by filing Original Application No. 342 of 2013 in Maharashtra Administrative Tribunal, Bench at Aurangabad. In the said application, the learned Tribunal was pleased to pass order in the vacation, directing the respondents to permit the petitioner to participate from open category subject to outcome of Original Application.

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(d) Accordingly, the petitioner was permitted to participate in the written examination. The petitioner has faired well in written examination and he was shown to have secured 165 marks, however, his name was included in the category waiting O.B.C. (male) despite the orders of the Tribunal and the fact that, he has subjected himself for appointment from Open Sportsman category. On going through the select list, the petitioner had immediately addressed a representation to respondent No.2 to treat him from Open Sportsman category on the basis of merit

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secured by him. Respondent No.2 has demanded original certificate belonging to sportsman category under communication dated 3.6.2013 and the petitioner has also replied the said representation on 5.6.2013.

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e) The petitioner further submits that original application was heard by the Tribunal on 2.12.2013 and the Tribunal has directed the Presiding Officer to justify its stand as to how the ‘Direct Recruitment’ and “selection by Nomination” has two different connotations. The original application thereafter heard finally on 3.12.2013. Respondent No.2 has produced original record before the Tribunal. While perusing the record, the Tribunal came across one printed form duly filled in by the respondents and signed by the applicant at the time of physical test. The applicant has recorded his caste as Teli/O.B.C. and further in response to column No.12, the petitioner has stated ‘No’. This was so taken by the Tribunal that the petitioner has not subjected himself from open sports category. In fact, while filling up on line application, the applicant has subjected himself from open sportsman category and therefore, he was permitted to participate in selection by giving relaxation in age limit as per the G.R. dated 30.4.2005. The Tribunal has dismissed the original application and the same is impugned in the present writ

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petition.

In the affidavit in reply filed on behalf of respondent No.2, it is contended that at the time of verification of documents by the authorities the information was submitted by the petitioner under his signature that his caste is Teli/O.B.C. and submitted the information in respect of column No.12 as ‘No’. It is thus clear that the petitioner has filled up form from O.B.C. category and and not from open sportsman category for selection process for the post of police constable. At the time of physical test, held on 17.5.2013 and after physical test, names of successful candidates were displayed on notice board with the marks obtained by them, respectively. At that time, the petitioner has claimed relaxation in age, as applicable to sportsman person under open category. The petitioner has already crossed age limit 25 years on 31.3.2013. As per the G.R. dated 30.4.2005, for the appointment form sports category is applicable in the matter of recruitment by nomination only. As per the interim order passed by the Tribunal, the authorities had permitted the petitioner for written examination from O.B.C. category viz-a-viz his form from open sportsman category. It is further contended that after hearing the parties, learned Tribunal has rightly dismissed original application by judgment and order dated 3.12.2013. It is further contended that the recruitment under challenge is direct recruitment and therefore, there is no question to appoint the

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petitioner considering the age relaxation from open category sports man person. As per clause 3(d) of said G.R. the age relaxation powers are vested with the Government in case selection by nomination. On plain reading of above mentioned G.R. Dated 30.4.2005, it reveals that principle of merit in open category applicable only to the unreserved seat. The petitioner can not claim that he should be taken as open sportsman candidate, as he was from O.B.C. category. According to the respondents, writ petition is devoid of merit and deserves to be dismissed.

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Respondent No.3 has filed affidavit in reply on the same line. It is contended that as per clause 3 in the advertisement, age limit is 25 years as of 31.3.2013, however, the age of petitioner is 25 years and 10 months as on date of advertisement and therefore, he is not entitle to consider from open category. It is necessary for the candidate to cancel his earlier application if he wish to apply for another place/post. The petitioner has not submitted his sportsman certificate and therefore, as per clause 16(4), the candidate, who has not submitted the original certificate, is not entitle for said relaxation. It has also contended that as per clause 3 of G.R. Dated 30.4.2005, the age relaxation is only available for the recruitment process by nomination. Respondent No.3 further submits that he has completed graduation and participated in Maharashtra State throw ball championship. The

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sportsman certificate produced by him in this regard verified by the competent authority, found to be correct. He is below 25 years of age at the time of advertisement. Accordingly, respondent No.3 prayed for dismissal of writ petition with costs.

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We have heard learned counsel appearing for the respective parties. We have perused the contents of writ petition, annexures thereto and the affidavit in reply filed by respective respondents.

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The petitioner herein has challenged the communication dated 18.5.2013 issued by respondent No.2 thereby refusing to consider the claim of the petitioner of subjecting his candidature from open category from sportsman before the Maharashtra Administrative Tribunal, by way of filing Original application No.342 of 2013. He had made followings prayers in the said application:-

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“B. By issue of an appropriate order or direction, the impugned order dated 18.5.2013, passed by the respondent no.2, thereby rejecting the representation of the applicant, may kindly be quashed and set aside.

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C. By issue of an appropriate order or directions, the respondent no.2 may kindly be directed to consider the claim of the applicant form Open (Sportsman) category and grant the relaxation applicable to the said category

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under the G.R. dated 30.4.2005.

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D. By issue of an appropriate order or directions, the provisional select list at Annexure ‘A-7’ above, published by the respondent No.2 may kindly be directed to be corrected to the extent of applicant and the respondent no. 3.”

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On this backdrop, we have carefully examined the impugned order dated 18.5.2013. Respondent No.2 has communicated to the petitioner that though the petitioner has filed an application from open category (sportsman), his age is 25 years and 10 months as on 31.3.2013 and thus, not entitle to file an application from open category sportsman, as the maximum age limit for the said category is 25 years. The petitioner was also informed by way of said communication that the petitioner is not entitle for extension of five years of age relaxation as a Sportsman and the said condition is applicable for recruitment by nomination and not for direct recruitment as provided in Government Resolution dated 30.4.2005. It thus appears that respondent No.2 has accepted that the petitioner has filed an application under open category sportsman. Even on perusal of copy of application submitted through on line, Exh. C at page 19, it is crystal clear that the petitioner has submitted an application under unreserved sports category.

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We have carefully perused the Maharashtra Police Constable (Recruitment) Rules 2011 at Exh.”D” page 22 of the compilation of writ petition. It appears that in Rule 8, reservations provided under Sports category and thereby 5% of total post available for recruitment of police constable shall be reserved for sports person. It is made clear in the said Rule the terms and conditions and governing this reservation shall be inconsonance with the Education and Sports department G.R. dated 30.4.2005 and any subsequent orders issued by the government from time to time. The G.R. dated 30.4.2005 as per clause 3, age relaxation of five years is provided for the candidate apply under sports man category. It has stated in the said G.R. Dated 30.4.2005 that the reservation is made applicable for the post filled up by nomination. In clause 7 which provided the general conditions and guidelines of the said G.R. Sub clause 8 states that 5% reservation has been provided in the sportsman selected by way of direct recruitment. It thus appears that respondent No.2 Superintendent of Police misinterpreted two terms i.e. “nomination” and “by direct recruitment”. The selection by nomination means selection by way of direct recruitment only. The same is also reflected from G.R. dated 30.4.2005 wherein sub clause 8 provides 5% reservation to the sports person appointed by way of direct recruitment. In fact, on completion

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of recruitment process, the concerned department nominates/recommends the candidate for being appointed for the post

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advertised specifying that category and accordingly it is said that the said candidate is appointed by way of direct recruitment. Even the Tribunal has accepted this interpretation and in para 12 of the impugned judgment and order has made the following observations:-

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“12. Thus, considering the above situation on record the rejection of relaxation of age or extension of age limit by the respondents is legal and proper, however, the other reason recorded in the disputed order namely the G.R. is applicable for direct recruitment and the advertisement is not for direct recruitment, for rejecting the claim of the applicant, is not legal and proper.” (emphasis supplied).

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The respondent No.2 had filed affidavit in reply before the Tribunal wherein it is stated that though the applicant has applied for the post from open category sportsman person, he has already crossed the age of 25 years on 31.3.2013 and in view of G.R. dated 30.4.2005 the powers of recruitment of such candidate is with the Government. In additional affidavit in reply filed by respondent No.2 before the Tribunal, in para 4, it has contended that the applicant filled up application form from O.B.C. category for the post of police constable. It has further contended in the said para that, physical test was held on 17.5.2013 at S.P. Office’s ground and after physical test the names of successful candidates were published on notice board with marks obtained by them. At that time, the applicant has claimed

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the relaxation in age as applicable to the Sportsman under open category. This contention raised by respondent No.2 is contrary to impugned communication dated 18.5.2013. Respondent No.2, for the first time, has taken a stand that the applicant has filled up form from O.B.C. category for the post of police constable. The same is also contrary to the record for the reason that the petitioner has filed an application on line under open category Sportsman and the same is also admitted by respondent No.2 in the impugned communication dated 18.5.2013. By the interim order dated 21.5.2013, the Tribunal, in Original Application, has permitted the applicant to appear for written examination on 22.5.2013. It is further observed that the applicant is permitted by the Tribunal by reserving his right to be considered from open category subject to outcome of original application. Thus, with this interim order, the applicant was allowed to participate in selection process.

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The learned Tribunal in para 8 of the impugned judgment has also admitted that as per on line application, the applicant has applied for open category with horizontal reservation for Sportsman category. It has also specifically observed that on perusal of said on line application, it can be said that contents of same are accordingly as claimed by the applicant. So far as reference to fill up form wherein the caste is mentioned by the petitioner as Teli/O.B.C. in one printed

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form is concerned, and as stated in the impugned communication dated 18.5.2013, by respondent No.2, the learned Tribunal has called original record and in para 9 of the judgment has made specific observations that he caste Teli/O.B.C. is not for the inference that, applicant has applied from OBC category.

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The learned Tribunal in the said para 9 of the judgment has further given reference to the information in column No.12 of the printed form, which reads as under:-

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“(१२) माजी सैििक, होमगाडड, खेळाडू यांचे पमाणपताची संबिित ििभागाचया पितिििी/ अििकायाािी पडताळणी करि पातते बाबतचे िििहत पमाणपत ििले आहे काय? िाही "

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The learned Tribunal on the basis of aforesaid information

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furnished in clause 12 has made observation that the petitioner is not possessing required certificate of sports category. It is rather pertinent to note that the department has never raised this issue at any given time that the petitioner does not belong to sportsman category. The aforesaid column 12 on the printed form as referred by the learned Tribunal if considered in its proper perspective, the only inference could be drawn that the candidate had not produced on record the verification of his sports certificate by the competent authority. In

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clause 7 sub-clause (3) of the G.R. dated 30.4.2005, it is specifically stated that the candidates who has been recommended for being appointed under sports man category, his sports certificate is required to be sent by the concerned Department of Director, Sports and Youth Services, State of Maharashtra Pune for verification. Respondent No. 2 even by the impugned communication dated 18.5.2013 neither stated anything about aforesaid column No.12 of the printed form nor in the affidavit filed before learned Tribunal. It has contended that the claim of the petitioner for being appointed under sportsman category was rejected on account of non submission of aforesaid verification, in column 12, as aforesaid. Even assuming that certain information is furnished in column No.12, as referred by the learned Tribunal in para 9 of the impugned judgment, it is rather erroneous to draw an inference that the petitioner is not possessing required certificate of sports category. In our considered opinion, the learned Tribunal has committed grave error by observing in para 12 of the impugned judgment, as aforesaid.

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The learned Tribunal has made observation in para 11 of the judgment, which reads as under:-

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“11. Thus, as per this clause relaxation of five years’ is permissible on the basis of merit and eligibility as a Sportsman. Thus, in order to get the benefit of this clause, it was necessary

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for the applicant to place on record the material showing that, he is possessing the requisite qualification and eligibility as a Sportsman. However, when the applicant while submitting information in writing in column no.12 before participation in the selection process referred herein above, he has recorded that he does not possess the said certificate and with this situation, the applicant is not entitled for the benefit of above clause of the GR for extension of age limit.

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The learned Tribunal has erroneously arrived at the said conclusion. The said information submitted in column 12 is about verification of Sports certificate by the concerned Officer of the department. However, neither the Officer of the department nor the respondent No.2, at any given time, raised the issue that the petitioner does not belong to Sportsman category. On the other hand, the petitioner's claim was considered in open category sportsman and by way of communication dated 18.5.2013, respondent No.2 has rejected his claim, by misinterpreting G.R. dated 30.4.2005. Respondent No.2, as it appears from communication dated 18.5.2013, refused to grant age relaxation to the petitioner by misinterpreting the G.R. dated 30.4.2005. Thus, the impugned judgment and order dated 3.12.2013 passed by learned Maharashtra Administrative Tribunal in Original Application No. 342 of 2013 is required to be quashed and set aside and it is accordingly quashed and set aside. Needles to say that the communication dated 18.5.2013 issued by respondent No.2

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Superintendent of Police, Aurangabad is also quashed and set aside.

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respondent No.2 has to consider the the case of the petitioner for open sportsman category only, if the petitioner found eligible in all respects, and further to appoint him from the said category to the post of police constable (Shipoi). Hence, the following order:-

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O R D E R

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I. The writ petition is hereby allowed.

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II. The judgment and order dated 3.12.2013 passed by the learned Maharashtra Administrative Tribunal, Bench at Aurangabad in Original Application No. 342 of 2013 is hereby quashed and set aside.

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III. Respondent No.2, the Superintendent of Police, Aurangabad is hereby directed to consider the petitioner’s case from open Sportsman category only and further to appoint him from the said category to the post of Police Constable (Shipoi), if he fulfills other criteria.

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IV. Rule made absolute in the above terms. Writ petition is disposed. No order as to costs.

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rlj/

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Shaikh Feroz Abdul Majid v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Shaikh Feroz Abdul Majid v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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