The challenge to direct recruitment of Executive Engineers alleged insufficient experience among selected candidates. The court accepted counting study leave towards qualifying experience under MSEDCL's applicable rules, found no ground for writ interference, and dismissed the petition without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Judgment-WP.857.2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 857 OF 2014
| Maheshkumar Chandrashekhar Dhage |
} } |
|---|---|
| Age 52 years, Occ. Service, | } |
| R/o. B1-303, Silver Oak Co. Hsg. | } |
| Society Ltd., East Avenue, | } |
| Near Bank of Maharashtra, | } |
| Kalyani Nagar, Pune, | } |
| District – Pune 411 014. versus |
} Petitioner |
| 1. The State of Maharashtra | } |
| through Secretary, Department | } |
| of Energy, Mantralaya, | } |
| Fort, Mumbai. | } } |
| 2. The Managing Director of MSEB Holding Company |
} } } |
| 3. The Managing Director MSEDCL |
} } |
| 4. The Director (Operation) MSEDCL |
} } } |
| 5. The Executive Director (H. R.) MSEDCL |
} } } |
| 6. The Chief General Manager (Tech.), MSEDCL |
} } } } |
| 7. The Chief General Manager (H. R.), MSEDCL |
} } } |
| The Respondent nos. 1 to 7 | } |
| having Corporate Office at | } |
| Prakashgad, Plot No. G-9, | } |
| Prof. Anant Kanekar Marg, | } |
| Bandra (E), Mumbai – 400 051 | } |
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| 8. The Director, Institute of Banking Personnel Selection, IBPS House, Plot No. 166, Behind Thakur Ploytechnic, Off. Western Express High Way, Kandivali (East), Mumbai – 400 010 |
} } } } } } } } |
|
|---|---|---|
| 9. Shubhangi Digambar Harmalkar, Age – Major, Occu. Service R/o. Commercial Intelligence Wing, Astralla batteries Building, Dharavi, Matunga, Mumbai |
} } } } } } } |
|
| 10. Sanjay s/o. Bapurao Wakade Age – major, Occu. Service, R/o. Office of Executive Engineer, MSEDCL, Deori Division, Pune, Dist. Pune |
} } } } } |
|
| 11. Kundan s/o. Pandurang Bhise Age – Major. Occu. Service, R/o. Office of Executive Engineer, MSEDCL, Yavatmal Division, Yavatmal, Dist. Yavatmal |
} } } } } } } |
|
| 12. Sukhdeo s/o. Narayan Sherkar |
} } |
|
| Age – Major, Occu. Service, R/o. Office of Executive Engineer, MSEDCL, Rastapeth Division, |
} } } |
|
| Pune, Dist. Pune | } | Respondents |
| Mr. Vishal Kanade with Mr. Satish R for the petitioner. |
aut | |
| Mr. Sukanta Karmakar – AGP respondent no. 1. |
for | |
| Mr. Prashant Chavan with Mr. Nir | av | |
| Shah i/b. M/s. Little and Co. |
for | |
| respondent nos. 2 to 7. |
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CORAM :- S. C. DHARMADHIKARI & B. P. COLABAWALLA, JJ.
Reserved on 18th November, 2016 Pronounced on 9th March, 2017
Judgment :- (Per S. C. Dharmadhikari, J.)
“b) The final selection list dt. 15/6/2013 for the post of Executive Engineer (Dist.) pursuant to the advertisement No. MSEDCL-10/2012 by Maharashtra State Electricity Distribution Company Ltd./Respondent No. 1 to 7 authorities may be pleased to quashed and set aside.
c) This Hon'ble court may be pleased to hold that Respondent no. 9 to 12 i.e. sr. no. 3 to 6 in select list and sr.no. 1 of the select list are ineligible for appoint to the post of Executive Engineer under advertisement No.MSEDCL-10/2012 by Maharashtra Electricity Distribution Company Ltd.
d) The Respondent No. 1 to 7 may pleased be directed to cancel selection of Respondent No. 9 to 12 and Sr. No. 1 of select list and declare the petitioner as selected by drawing next below list of four candidates those who are only complying prerequisite condition of advertisement for appointment of Executive Engineer (Dist.)”
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The petitioner was appointed as a Junior Engineer with the Maharashtra State Electricity Distribution Company Limited (MSEDCL) i.e. respondent No.3 to 7 authority from October 1986 to May 2004. The petitioner was working as Assistant Engineer with MSEDCL from May 2004 to September 2012. Thereafter, the petitioner is working as a Deputy Executive Engineer with MSEDCL since October, 2012 till this date and has gained experience of more than 27 years in the field of Power Distribution and more than 9 years in the post of Assistant Engineer and Deputy Executive Engineer. A copy of the Experience Certificate issued by the Chief General Manager (HRTech) MEDCL is annexed at Exhibit-A to the paper-book. In 2012, the respondent authorities issued one advertisement No.MSEDCL-10/2012 for about 09 posts under Direct Recruitment. A copy of the said advertisement is annexed as Exhibit-B to the paper-book. The petitioner being an eligible candidate for the post of Executive Engineer (Dist.) applied online as per the guidelines given in the advertisement. A copy of the online application form is marked as Exhibit-C to the paper-book. As per the advertisement for the post of Executive Engineer (Dist.) more than 200 candidates submitted their applications. A copy of the list of candidates who applied for Executive Engineer (Dist.) is annexed as Exhibit-D to the paper-book.
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vide letter dated 22 nd March, 2013, the respondent thereafter included the name of the petitioner along with other 10 candidates in the list of candidates who were called for interview at the last moment. A copy of the letter dated 22 nd March, 2013, addressed to respondent Nos.5 to 7 is marked as Exhibit-F to the paper-book and a copy of the second list of 11 candidates who were called for the interview is marked as Exhibit-G to the paperbook.
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respondent Nos.2 to 8. However, some of these candidates are also not eligible for the post of Executive Engineer (Dist.) as per advertisement and also not as per ratio provided in clause 6.1 of the advertisement.
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paper-book. The petitioner further states that inspite of the petitioner bringing to the notice of the respondent that Mr. Manish B. Thakare has been included in the final list which disturbs the preference merits list of selected candidates, the said fact was overlooked by the respondent authority and it displayed the wrong list for the post of Executive Engineer (Dist).
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marks dated 18 th October, 2013, respectively, are annexed as Exhibits – K, L and M to the paper-book.
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Sherekar S.N., Mr. Bhise K.P., Mr. Chitale S.N., Mr. Damse C.S. and Mr. Salunkhe have committed number of irregularities and hence facing/contemplating disciplinary action. As such in absence of the transparency in publishing merit list from time to time, the selection of these candidates is against the existing rules and hence be quashed and cancelled. The departmental regular promotion is not given to the candidates in MSEDCL if departmental action is in process. However, the candidates facing disciplinary action have been selected under direct recruitment. The various irregularities appearing in the select list were brought to the notice of the respondent Nos.1 to 3 on 25 th August, 2013, by the petitioner and also by other listed and not listed candidates. A copy of the representation of the petitioner dated 25 th August, 2013, along with the status report of disciplinary actions against the selected candidates is annexed as Exhibit-O to the paper-book.
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disciplinary action cases have been finalised; (1) state seniority posts; (2) ED (HR); (3) one functional member of the CSC. However, the petitioner submits that the said list of candidates who were selected inspite of the charges pending against them was not sent to the Review Committee as per the provisions prescribed above. The petitioner further submits that the respondent authority has urgently made appointment order and simultaneously asked to relieve the candidates on the same day. Copies of the Correction Slip and the order dated 4 th July, 2013, respectively are annexed as Exhibits – P and Q to the paper-book. 15. The petitioner submits that he raised his voice against these irregularities vide his application dated 25 th August, 2013, and thereafter the appointment order of some candidate has been cancelled and simultaneously kept in sealed cover vide Order No.319 dated 30 th September, 2013, which is self contradictory. The petitioner further submits that the act of the said cancellation of orders stating that the appointment of candidates are cancelled and on the other hand in the same order mentioning that the case has transferred to seal cover also shows patently irregularities/illegalities committed at the time of correcting the erroneous appointments. A copy of the order dated 30 th September, 2013, is annexed and marked as Exhibit-R to the paper-book.
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respect of the above candidate the certificate was not even produced at the time of interview, but produced thereafter. Inspite of the said facts, she was selected and appointed by the respondents for reasons best known to them. A copy of the said certificate obtained under the Right to Information Act is annexed as Exhibit-T to the paper-book. A copy of the service regulation of MSEDCL in respect of the study leave is annexed as Exhibit-U to the paper-book.
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A . Mr. S.M.Wakade has joined as Deputy Executive Engineer on 12 th September, 2011, did not complete two years as 15 th December, 2012.
B . He was Management Trainee for period of two years with effect from 1 st September, 2009 to 31 st August, 2011, which is not to be considered as work experience.
He was on study leave for a period of 15 months with effect from 14 th July, 2007 to 3 rd November, 2008 which also is not to be considered as work experience.
Actual experience in the post of Assistant Engineer with effect from 29 th July, 2006, to 13 th July, 2007, i.e. less than one year.
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declaration in final select list and still in progress. In spite of the above fact he was appointed as Executive Engineer (Distribution). After the petitioner brought this irregularity to the notice of the respondent, respondent Nos.3 to 7 cancelled the appointment and on the other hand in the same order mentioned that the case has been transferred to seal cover. This act also shows the patent illegalities or irregularities committed at the time of correcting the erroneous exercise. The petitioner further submits that thereafter the respondent Nos.3 to 7 should have given priority to the down below candidates, however, the same was not done by the respondent Nos.3 to 7.
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“3.1) I say that in October, 1986, the Petitioner joined the erstwhile Maharashtra State Electricity Board as a Junior Engineer. I say that in the year 2004, Petitioner was promoted to the post of Assistant Engineer. I say that pursuant to the Scheme framed in accordance with the proviso of Section 131 of the Electricity Act, 2003, the Distribution undertaking of erstwhile MSEB was taken over by MSEDCL. I say that the Petitioner's services continued with MSEDCL.
3.2) I say that in October, 2012, MSEDCL had published an advertisement for filling up various posts under direct recruitment including the post of Executive Engineer (Distribution). The Petitioner applied for the post of Executive Engineer (Distribution) under direct recruitment. I say that Twelve (12) posts were available for direct recruitment in respect of Executive Engineer (Distribution), out of which One (1) was reserved for SC Category, Four (4) post for ST Category, One (1) post for VJA Category, One (1) post for NTB Category, Four (4) post for OBC Category and One (1) post was available for Open Category. I say that the Petitioner applied under the OBC Category. I say that the Written Examination for the post of Executive Engineer (Distribution) was conducted on 13.01.2013.
3.3) I say that the selection was carried out by an independent agency namely IBPS. I say that the Petitioner was called for interview along with other qualified candidates after Written Examination. I say that after interview the list of selected candidates for the post of Executive Engineer (Distribution) as well as other post was published. I say that accordingly Twelve (12) candidates were selected for the post of Executive Engineer (Distribution) and Seven (7) candidates were kept on waiting list. The said Select List is annexed at Exhibit “J” to the above Petition.
3.4) I say that as per the procedure the Recruitment Agency had included names of all the selected candidates in the select list irrespective of any ongoing disciplinary action against any of the candidates. I say that verification of service details was to be carried out after receipt of Selection List.
3.5) I say that the Appointment Order was issued to various selected candidates. I say that the Appointment Order was issued on 04.06.2013 and the selected candidates were directed to relieve on or before 12.06.2013. I say that there is no merit in the contention of the Petitioner that the Respondents had made the appointment urgently and had simultaneously asked the selected candidates to be relieved on the same day.
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3.6) I say that the process of cancellation of Appointment Order and keeping them in the seal cover was not solely influenced by the Complaint of the Petitioner. I say that the process of verification of the service details was started before receipt of the Complaint of the Petitioner. I say that after verification of service details, the Appointment Orders of some of the selected candidates were cancelled as per the Rules and their cases were kept in the sealed cover for the purpose of following the sealed cover procedure as per Regulation 29 of the MSEDCL (Classification and Recruitment) Regulations, 2005. The said order of cancellation of appointment has been annexed at Exhibit “R” to the above Petition.
3.7) I say that in Paragraphs 20 to 23, the Petitioner has raised the question about eligibility of the Respondent nos.9 to 12 for the post of Executive Engineer (Distribution). I say that there are no merits in the said contentions and all the candidates were fulfilling the eligibility criteria for the post of Executive Engineer (Distribution). The table below details the eligibility criteria vis-a-vis the said four Respondents.
| Sr. No. |
Criteria as per Advt. |
Particulars of selected candidates |
Remarks |
|---|---|---|---|
| 1 | Qualification:- Bachelor's Degree in Electrical Engineering / Technology |
Smt. Shubhangi Harmarkar BE (Electronics) PGDBM Wakade Sanjay Manohar BE (Electronics) PGDBM |
All candidates are fulfilling the required criteria |
| Kundan Bhise BE (Electronics) M. Tech. MBA |
|||
| Sherkar Sukhdeo BE (electronics) MBA (Marketing) |
|||
| 2 | Experience:- 9 Years of Experience in Power Sector out of which at least 5 years in the area of Power distribution as Dy. EE & Asstt. Engineer or 2 |
Smt. Shubhangi Harmarkar Total Exp: 9 yrs. & 4 Months As Dy. EE 2 Yrs. & 9 Months Wakade Sanjay Manohar Total Exp: 15 yrs. & 4 Months As Dy. EE 1 Yrs. & 3 Months As AE – 5 Yrs & 2 Months |
All candidates are fulfilling the required criteria |
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| years as Dy. Ex. Engineer. |
Kundan Bhise Total Exp: 18 yrs. & 8 Months As Dy. EE 1 Yrs. & 2 Months As AE – 8 Yrs. & 0 MOnths |
||
|---|---|---|---|
| Sherkar Sukhdeo Total Exp: 13 yrs. & 4 Months As Dy. EE 6 Yrs. & 4 Months |
|||
| 3 | Age limit as on 15.12.2012:- 40 Years Age Limit relaxable |
Smt. Shubhangi Harmarkar(OBC Category) 34 Yrs. & 8 MOnths |
All candidates are fulfilling the required |
| by 5 years for candidates belonging to Backward Class Class. |
Wakade Sanjay Manohar (OBC Category) 42 Yrs. & 1 Months |
criteria | |
| Departmental candidates upper Age limit is 57 |
Kundan Bhise (OBC Category) 47 Yrs. & 11 Months |
||
| years. | Shekhar Sukhdeo (OBC Category) 38 Yrs. & 1 Months |
3.8) ….. It is submitted that none of the prevailing Rules/Regulations of MSEDCL expressly provide that study leave period would be excluded from the experience period to be considered for the purpose of eligibility. Hence, in absence of any such provisions the MSEDCL treats these period as continuous working period and included as work experience as per Rules. …..
3.9) I say that the Petitioner has raised objection to the appointment of the Respondent No. 10, Shri. Sanjay Manohar Wakade in Paragraph 21 of the Petition contending therein that he was Management Trainee for the period of 2 years and on study leave of period of 15 months. I say that as pointed out in preceding paragraph that none of the prevailing Rules/Regulations of MSEDCL expressly provides that study leave period would be excluded from the experience period to be considered for the purpose of eligibility. Hence, in absence of any such provisions the MSEDCL treats these period as continued working period and included as work experience as per Rules. Hence, Shri. Sanjay Wakade is eligible for appointment under direct
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recruitment as he has more than 2 years' experience as Deputy Executive Engineer.
3.10) I say that the Petitioner has raised objection to the appointment of the Respondent No. 11, Shri. Kundan Pandurang Bhise in Paragraph 22 of the Petition. I say that the appointment of Shri. Bhise has already been cancelled vide order dated 30.09.2013 and the selection is kept in seal cover and seal cover procedure will be followed as per Regulation 29 of MSEDCL (Classification and Recruitment) Regulations, 2005. The said order dated 30.09.2013 has been annexed at Exhibit “R” to the above Petition.
3.11) I say that the Petitioner has raised objection to the appointment of the Respondent No. 12, Shri. Sukhdeo Narayan Shekar in Paragraph 23 of the Petition contending therein that 3 Charge Sheets have been issued to him out of which he was punished in respect of 2 Charge Sheets. It is submitted that all the disciplinary action cases against Shri. Sherkar were finalised at the time of issuing the appointment order. Hence, as per Rules he was eligible for the appointment under direct recruitment.”
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experience denotes working experience and not a period of study leave. Mr.Kanade, appearing for the petitioner highlights this aspect of the matter regarding the two candidates. He has submitted that Wakade Sanjay was on study leave for 15 months with effect from 14th July, 2007 to 3rd November, 2008, which does not amount to work experience. Similarly, Shubhangi Harmalkar was on study leave for two years. Therefore, she completes less than 7 years experience in power sector.
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as Deputy Executive Engineer and prior to that, he was an Assistant Engineer. This experience, together with the period on
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which he was on study leave has been reckoned and as far as Ms. Harmalkar is concerned, the petitioner concedes that she completed 2 years experience in the post of Deputy Executive Engineer. She had joined the erstwhile MSEB on 7th October, 2002 as Junior Engineer. However, she was on study leave for two years, as such she completed less than 7 years experience in power sector. What is required is 9 years experience in power sector, out of which, at least 5 years in the area of power distribution as Deputy Executive Engineer and Assistant Engineer or 2 years as Deputy Executive Engineer. Whichever way we look at this stipulation, we do not think that the respondents were in error or they acted arbitrarily in selecting the two candidates. The explanation provided in the affidavit and particularly with regard to these candidates is not vitiated by any perversity or any error of law apparent on the face of the record. We do not see any justification for the complaint of the petitioner, inasmuch as in para 3.8 of the reply affidavit, the respondents have clarified that Ms. Harmalkar was deputed by the respondents themselves to undergo the 15 months' Executive Post Graduate Diploma in Business Management–Energy Management as a specialisation in power distribution at Management Development Institute Gurgaon after passing the qualifying examination. The applicable rules and regulations of
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the MSEDCL, do not contemplate exclusion of the study leave period for reckoning and computing the total experience. That is why that period spent on study leave so as to acquire higher training has been taken into consideration. We do not think that such an approach of the respondents can be faulted. It is a possible way of construing and interpreting the requirement of work experience as stipulated in the advertisement. Similarly, with regard to Mr. Wakade, it is pointed out by the respondents that his study leave period was also reckoned and taken into consideration while computing the work experience. The explanation in para 3.9 of the reply affidavit with regard to Mr. Wakade enables us to conclude that he was also eligible for appointment under direct recruitment as he has more than 2 years' experience as Deputy Executive Engineer.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
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1 issue framed by the court
Could study leave be counted towards the experience required for direct recruitment as Executive Engineer (Distribution) under MSEDCL's advertisement?
1 provisions across 1 enactments
Maheshkumar Chandrashekhar Dhage
The State of Maharashtra
Shubhangi Digambar Harmalkar
Sanjay s/o. Bapurao Wakade
Kundan s/o. Pandurang Bhise
Sukhdeo s/o. Narayan Sherkar
S. C. DHARMADHIKARI
B. P. COLABAWALLA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
