Dismissed

Swati D/O Vitthal Shelvane, v. State of Maharashtra and Ors.

Bombay HC19 Sept 2018WP/6632/2018

Case brief

AI extract

What is this about?

The petitioners challenged shortlisting of candidates for Junior Clerk and Peon/Hamal posts in various District Courts, contending that candidates with the minimum qualification were wrongly excluded and that the criteria were evolved after the advertisement. The High Court found the shortlisting rational, approved by a committee of judges and made known in the instructions, and dismissed the peti

What the court decided

AI extract

Swati D/O Vitthal Shelvane, Vs State of Maharashtra… — Service and Employment | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION (L) NO.2049 OF 2018 (OS)

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Vishnu Balaji Dhumal ] Age : 30 years, ] R/o. Balaji Nivas ] A/p. Mahalangi ] Tal. Chakur, Dist. Latur – 413529 ]..... Petitioner.

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Versus

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1]	Bombay High Court	]
	Through the Registrar General,	]
	High Court, Bombay	]
2]	The State of Maharashtra	] ]..... Respondents.

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WITH CIVIL APPELLATE JURISDICTION (AS)

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WRIT PETITION NO.6523 OF 2018

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1]	Ashish S/o Diwakar Namewar	]
	Aged about 32 years,	]
	Occ. Labour	]
	R/o. Indira Nagar, Ward No.11	]
	Mul, Dist. Chandrapur.	]
2]	Pradip S/o Vitthal Poyam	] ]
	Aged about 34, Occ. Labour	]
	R/o Krishna Nagar Chandrapur	]
	Dist. Chandrapur	] ]
3]	Rameshwar S/o Sudhakar	]
	Mankiwar, Aged about 34,	]
	Occ. Labour	]
	R/o. Malviya Ward, Warora	]
	Dist. Chandrapur	] ]
4]	Chandu S/o. Shankar	]

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	Bhurkunde, Aged about 43,	]
	Occ. Labour	]
	R/o Dhivarpuri Ward,	]
	Chandrapur, Dist. Chandrapur	] ]
5]	Ankush S/o Bhaurao	]
	Shivankar, Aged about adult	]
	Occ. Labour	]
	R/o Gondpipri,	]
	Dist. Chandrapur	]
		]
6]	Kalpana W/o Deepak Nimje	]
	Aged about 42,	]
	Occ. Labour	]
	R/o. Indira Nagar, Mul Road,	]
	Chandrapur, Dist. Chandrapur	]
		]
7]	Sandhya W/o Devidas	]
	Gatlewar, Aged about 38	]
	Occ. Labour	]
	R/o. Ravindra Nagar Ward	]
	Karwa Road, Ballarpur,	]
	Dist. Chandrapur	]
		]
8]	Shalu W/o Pandurang	]
	Kakode, Aged about 40,	]
	Occ. Labour,	]
	R/o Gandhi Chauk, Ballarpur	]
	Dist. Chandrapur.	]
		]
9]	Devidas S/o Kewalram	]
	Shejare, Aged about 43	]
	Occ : Labour	]
	R/o Kurkheda	]
	Dist. Gadchiroli	]
		]
10]	Praful S/o Lalaji Waghmare	]
	Aged about 32	]
	Occ. Labour	]
	R/o Dhivarpuri Ward,	]
	Chandrapur, Dist. Chandrapur	]
		]
11]	Rajendra S/o Gajanan	]
	Kolte, Aged about 37	]

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	Occ. Labour R/o Bhagatsing Road, Desaiganj – Wadsa, Dist. Gadchiroli	] ] ] ]
12]	Nilesh S/o Ganpatrao Chaudhari, Aged about 31,	] ] ]
	Occ. Labour	]
	R/o Gajanan Nagar Ward No.6, Pimpri (Meghe), Wardha, Dist. Wardha	] ] ]...	.. Petitioners.
	versus
1]	The Hon'ble High Court of Judicature at Bombay,	] ]
	Through the Registrar General, High Court of Judicature at Bombay	] ]
	Fort, Mumbai.	]
2]	The State of Maharashtra Through its Secretary	] ] ]
	Department of Law and Judiciary	]
	Mantralaya, Mumbai – 32.	]
		]
3]	The District and Sessions Court, Chandrapur,	] ]
	Through its Registrar	]
		]
4]	The District and Sessions Court, Gadchiroli,	] ]
	Through its Registrar	]
		]
5]	The District and Sessions Court, Wardha,	] ]
	Through its Registrar.	]...	.. Respondents.

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	WITH WRIT PETITION NO.6525	OF 2018
1]	Dhammanand S/o Laxman Jawade	]
	Aged about 37 years,	]
	Occupation : Labour	]

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	R/o. Chandapur, Post Talani	]
	Tah. Ghatanji, District Yavatmal.	]
		]
2]	Hitesh S/o Prakashsing Rathod Aged about 28 years,	] ]
	Occupation : Labour	]
	R/o. Datey College Road, Dahiwalkar Plot, Yavatmal,	] ]
	District Yavatmal	]..... Petitioners.
	Versus
1]	The Hon'ble High Court of Judicature at Bombay,	] ]
	Through the Registrar General, High Court of Judicature at Bombay	] ]
	Fort, Mumbai.	] ]
2]	The State of Maharashtra Through its Secretary Department of Law and Judiciary	] ] ]
	Mantralaya, Mumbai – 32.	] ]
3]	District and Sessions Court, Yavatmal, Through its Registrar, District – Yavatmal	] ] ]..... Respondents.

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WITH WRIT PETITION NO.6526 OF 2018

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Krunal S/o Rishikesh Suryawanshi	]
Aged about 32 years,	]
Occupation : Labour	]
R/o. 54, Durga Nagar, Tumsar, Tah. Tumsar, District Bhandara	] ]..... Petitioner.
Versus
1] The Hon'ble High Court of Judicature at Bombay, Through the Registrar General, High Court of Judicature at Bombay Fort, Mumbai.	] ] ] ] ] ]

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2]	The State of Maharashtra	]
	Through its Secretary Department of Law and Judiciary Mantralaya, Mumbai – 32.	] ] ] ]
3]	District and Sessions Court, Akola, Through its Registrar District Akola WITH WRIT PETITION NO.6631	] ] ]..... Respondents. OF 2018
1]	Kaduji Chokhaji Ingle, Age – 35 years, Occ – Student Present residing at Paravati Nivas New Pahadsingpura Aurangabad	] ] ] ] ] ]
2]	Siddharth Arjun Chumble Age – 32 years, Occ – Student Present residing at Paravati Nivas New Pahadsingpura, Aurangabad	] ] ] ] ] ]
3]	Kiran Subhash Kale, Age – 34 years, Occ – Student R/o – Datta Colony Road, Kannad Tq Kannad, Dist. Aurangabad	] ] ] ] ]
4]	Santosh Kundlik Jadhav Age – 34 years, Occ – Student R/o – At Digras-wani, Post – Sirsam, Dist. Hingoli	] ] ] ]
		]
5]	Rajendrakumar Vitthal Waman Age – 30 years, Occ – Student R/o – At Malselu, Post – Khandala, Dist. Hingoli	] ] ] ] ]
6]	Anil Kanuji Dipke Age 29 yrs. Occ – Student Dept. of Pali, DR. BAM University Aurangabad.	] ] ] ] ]

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7]	Sunil Sakharam Nagve,	]
	Age – 28 yrs. Occ – Student,	]
	R/o – At post – Somthana Tq. Badnapur, Dist. Jalna.	] ] ]
8]	Anil Shivcharan Chindale Age – 40 yrs. Occ – Nil Chinaliya Niwas, TPS Road,	] ] ]
	Shivaji Nagar, Parli Vaijanath,	]
	Tq. Parli, Dist. Beed	] ]
9]	Pralhad Sopanrao Thoke Aged 38 years, Occu. Student	] ]
	R/o. Parli Vaijanath, TQ. Parli, Dist. Beed.	] ]..... Petitioners.
	Versus
1]	The Hon'ble High Court of Judicature of Bombay Through its Registrar General	] ] ] ]
2]	The State of Maharashtra Through its Secretary	] ]
	Law & Judiciary Department Mantralaya, Mumbai – 20	] ]..... Respondents.

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	WITH WRIT PETITION NO.6632	OF 2018
Swat	i D/o Vitthal Shelvane	]
Age :	30 years, Occ : Student	]
R/o	House No.4/34/53, Lane No.2,	]
New	Hanuman Nagar, Aurangabad – 431003	]..... Petitioner.
	Versus
1]	The State of Maharashtra, Through its Secretary	] ]
	Department of Law and Judiciary Mantralaya, Mumbai – 32	] ] ]
2]	The Registrar (Inspection-I) High Court of Bombay, Mumbai – 32	] ]
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] 3] The Registrar, ] District and Sessions Court, Aurangabad ]..... Respondents.

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WITH

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WRIT PETITION NO.6633 OF 2018

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Rahul S/o Devidas Yadmal	]
Age – 26 years, Occ – Nil	]
R/o – Kanchanwadi, Paithan Road	]
Aurangabad, District – Aurangabad	]..... Petitioner.

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Versus

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1]	The Registrar (Inspection-I) High Court of Bombay	] ] ]
2]	The Registrar, District Court, Aurangabad	] ] ]
3]	The State of Maharashtra	]
	Through its Secretary of	]
	Law and Judiciary Department,	]
	Mantralaya, Mumbai.	]..... Respondents.

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WITH WRIT PETITION NO.6637 OF 2018

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1]	Ravikant s/o Vitthalrao Pawar,	]
	Age : 37 years Occu. Unemployed	]
	R/o. C/o. Ravi Typing Institute	]
	Old Pedgaon Road, Parbhani	]
	Tq. And Dist. Parbhani	] ]
2]	Rajabhau S/o Jaywantrao Londhe	]
	Age : 34 years Occu : Unemployed	]
	R/o. At : Parwa, Post : Jamb,	]
3]	Tq. And Dist. Parbhani Minakshi Gangadhar Turerao	] ] ]
	Age : 23 years Occu. Unemployed	]
	R/o. Satkar Colony, Dattadham	]
	Basmat Road, Parbhani,	]
	Tq. And Dist. Parbhani	]

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4]	Manik S/o Bhagwanrao Jukte, Age : 24 years, Occu. Unemployed	] ] ]
	R/o. At Post Lohagaon Tq. And Dist. Parbhani	] ]..... Petitioners.
	Versus
1]	The State of Maharashtra Through its Principal Secretary, Law and Judiciary Department Mantralaya, Mumbai.	] ] ] ] ]
2]	The Registrar (Administration) High Court of Judicature at Bombay	] ] ]
3]	The Registrar (Inspection) High Court of Judicature at Bombay 2^ndFloor, P.W.D. Building Fort, Mumbai	] ] ] ]..... Respondents.

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WITH WRIT PETITION NO.6670 OF 2018

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Jagd	ish s/o Arvind Rajput	]
Age	37 years, Occu : Service	]
R/o. Nan	Tamboli Galli, Near Telwadi durbar, Tq. & Dist. Nandurbar	] ]..... Petitioner.
	Versus
1]	The State of Maharashtra Through its Secretary,	] ]
	Law and Judiciary Department	]
	Mantralaya, Mumbai-32	] ]
2]	The Registrar (Administration) Hon'ble High Court of Judicature of Bombay at Bombay	] ] ] ]
	(Copy to be served on R. Nos. 1	]
	& 2 through Government Pleader, High Court of Judicature of	] ]
	Bombay, Bench at Aurangabad)	]..... Respondents.

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Mr. Laxman Deshmukh I/by Mr. S. U. Solanke for the Petitioner in Original Side Writ Petition (L) No.2049 of 2018.

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Mr. B. M. Dafle for the Petitioners in Writ Petition Nos.6523 of 2018, 6525 of 2018 and 6526 of 2018.

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Mr. M V Thorat for the Petitioners in Writ Petition No.6631 of 2018.

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Mr. Yuwraj D Patil I/by Mr. Manoj Shelke for the Petitioner in Writ Petition No.6632 of 2018.

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Mr. Yuwraj D Patil for the Petitioner in Writ Petition No.6633 of 2018.

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Mr. Ghatol Paril Shahaji B for the Petitioners in Writ Petition No.6637 of 2018.

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Mr. Vijay V Deshmukh for the Petitioner in Writ Petition No.6670 of 2018.

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Mr. S K Talsania, Senior Advocate a/w Mr. Rahul Nerlekar for the Respondent/Bombay High Court.

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Mr. Abhay Patki, Addl. Govt. Pleader for the Respondent/State.

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CORAM : R. M. SAVANT & K. K. SONAWANE, JJ. Reserved on : 23^rd AUGUST 2018 Pronounced on : 19^th SEPTEMBER 2018.

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JUDGMENT [PER R. M. SAVANT, J]

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1 Rule in all the above Writ Petitions with the consent of the learned

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counsel for the parties made returnable forthwith and heard.

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2 The above group of Writ Petitions raise a common challenge inasmuch as they challenge the short listing of the candidates for the posts of Junior Clerk and Peon/Hamal for appointment on the establishment of various

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District Courts including Bombay City Civil Court, the Court of the learned Chief Metropolitan Magistrate, Mumbai, the Court of the Small Causes Court, Mumbai.

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3 The factual matrix giving rise to the filing of the above Writ Petitions can in brief be stated thus :-

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An advertisement came to be published on 28/03/2018 on the official website of the High Court of Bombay inviting on-line applications for recruitment to the posts of Stenographers (L.G.), Junior Clerks and Peon/Hamal on the establishment of the various District Courts in the State of Maharashtra including Bombay City Civil Court, the Court of the learned Chief Metropolitan Magistrate, Mumbai, the Court of the Small Causes Court, Mumbai. As indicated above in so far as the above Writ Petitions are concerned they are restricted to the posts of Junior Clerks and Peon/Hamal and do not concern the posts of Stenographers (L.G.).

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4 By the consent of the learned counsel for the parties, the above Writ Petition (Lodging) No.2049 of 2018 filed on the Original Side of this Court is treated as the lead matter. The facts which have been adverted to in the instant judgment, would therefore be referrable to the said Writ Petition.

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5 The said advertisement dated 28/03/2018 inter-alia mentions the

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qualifications for the post of Junior Clerk as well as Peon/Hamal. It would be relevant to reproduce the eligibility criteria for the posts of Junior Clerk and Peon/Hamal which for the sake of ready reference is reproduced herein under :-

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Eligibility Criteria :- Junior Clerk

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Qualification :- A candidate for being eligible -

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(a) minimum passed S.S.C. Board Examination. Preference will, however, be given to Graduate and Law Graduates of any Recognized University in any faculty.

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(b) must have passed Government Commercial Certificate Examination, or examination conducted by Government Board or I.T.I. for English Typing with speed of 40 w.p.m. and Marathi Typing with speed of 30 w.p.m.

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a) DOEACC/NIELIT b) University c) C-DAC d) MS-CIT e) Vocational Course – State Government f) Vocational Course – Central Government g) ITI – Central Government h) ITI – State Government i) Technical Board

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d) Candidate should not have total number of living children more than 02 due to the children born after 28.03.2006.

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Eligibility Criteria :- Peon/Hamal

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Qualification :-

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(a) A candidate must have passed minimum 7^th Standard with good physique.

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(b) Candidate should not have total number of living children more than 02 due to the children born after 28.03.2006.”

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The said advertisement also contains Common Instructions to all candidates.

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In the context of the challenge raised in the above Writ Petitions, Clause Nos.14, 22, 24 and 25 are relevant, which for the sake of ready reference are reproduced herein under :-

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“14 Candidates shall note that they may apply for several posts in several Districts. However since the recruitment tests are going to be held on the same day and same time in all Districts, the candidates will be able to appear only at one place. Therefore, every candidate may assess his chances of selection according to his qualification and number of posts advertised in each establishment and give preference of establishments and posts for which he would like to be considered. He may give as many as 10 preferences. But once application is submitted it would be final, it cannot be modified in any respect.

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22 High Court has reserved the right of shortlisting the candidates on the basis of higher educational qualification and academic excellence.

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24 For the posts of Stenographers (L.G.), there will be no screening test. For the posts of Junior Clerks and Peons/Hamal, the shortlisted candidates would have to undergo screening test. After the screening test the candidates equal to seven times the number of post advertised shall be called for further tests like typing for Junior Clerks and cleanliness and activeness for Peons/Hamal. If there are more than one candidate, who have secured identical cut off marks in screening test, as may be fixed by the Recruitment Committee, for maintaining the ratio of 1:7, all such candidates shall be called upon to appear for Typing Test for Junior Clerks and cleanliness and activeness test for Peons/Hamal.

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Based on performance at such tests, candidates equal to three times the number of posts advertised would be asked to appear for interview. Lists so prepared shall be displayed in the Office of District Court, with time table of interview.

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25 The screening test for the post of Junior Clerk shall carry 40 marks comprising of 20 multiple choice objective type questions in local language, while screening test for the post of Peons shall carry 30 marks comprising of 15 multiple choice objective type questions, for testing General Knowledge including knowledge of History, Civics, Science, Geography, Sports, Literature, Grammar and current events. Questions on computer knowledge shall be also included in the screening for the Junior Clerks.

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Hence by Clause 22, the High Court had reserved its right to shortlist the candidates on the basis of the higher educational qualification and academic excellence.

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In so far as Junior Clerks are concerned, the instructions as contained in Clause Nos.29 to 34 are also relevant which for the sake of ready reference are reproduced herein under:-

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“29 Junior Clerks :- The local language typing test carrying 20 marks shall comprise of 300 words to be typed by the candidates within 10 minutes (30 wpm) on computers. The services of Stenographers in the District Court shall be used for the evaluation of the sheets typed by the candidates.

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30 Candidates who would obtain cut off marks in local language typing test as decided by the Recruitment Committee only would be eligible for appearing the English typing test.

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31 The list of such eligible candidates shall be displayed in the office of the District Court and on the official website of each District Court.

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32 The English typing test on Computer carrying 20 marks shall comprise of 400 words to be typed by the candidates within 10 minutes (40 wpm). The services of stenographers in the District Court shall be used for checking of the sheets typed by the candidates.

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33 While evaluating English and local language typing test Papers, 1 mark should be deducted for 5 mistakes. Omissions would be treated as mistakes. In spelling the same word many times, if errors are committed, then it would be treated as only one mistake.

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34 Candidates who would obtain cut off marks in English Typing, as decided by the Recruitment Committee only would be held eligible for interview. Candidates equal to 3 times of the number of posts advertised based on total number of marks obtained by him in English Typing test, local language Typing test and screening test shall be called for interview. If there are more than one candidate who have secured same marks as secured by the last candidate shortlisted for maintaining the ratio 1:3, all such candidates shall be called to appear for interview.”

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In so far as the post of Peon/Hamal is concerned, Clause Nos. 35 and 36 of the common instructions are relevant and for the sake of ready reference are reproduced herein under :-

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“35 Peon/Hamal :- Activeness test and cleaning test :- The test of activeness carrying 5 marks for the post of peons/Hamal shall be held on the date as may be declared in the advertisement. In this test the swiftness and promptness in the movements of the candidates shall be tested.

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36 The test of cleaning carrying 5 marks of the building and the premises of the Court building for the post of peons/Hamal shall be held on the same day on which the test of activeness is held. The skill and swiftness in the work of cleaning the Court building and premises by the candidates shall be examined by taking actual work through the candidates. Based on performance in screening test, activeness and cleanliness test, list of candidates eligible for interview with time table of interview, shall be displayed on the Notice of Boards of the district Court, on the same day. Such candidates shall not be more than 3 times of the number of posts advertised. If there are more than 1 candidate, who have secured same marks as secured by the last candidate so shortlisted for maintaining the ratio 1:3 all such candidates shall be called upon to appear for interview.”

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The last stage in the recruitment process was the interview and it is only the candidates who had got the cut off marks fixed for a particular District were called for interview for the posts of Junior Clerk and Peon/Hamal.

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6 In terms of Clause 22 of the Common Instructions the criteria for shortlisting the candidates was evolved and the same was approved by the Committee comprising of two Hon'ble Judges of this Court on 17/06/2017. As per the criteria, the shortlisting was to be carried out by taking the percentage of marks obtained by the candidates whilst passing the examination of minimum qualification as the base score and adding the marks in the scale as mentioned in Guideline No.36 for additional qualification. Preference was given to the candidates who are Law Graduates and to those who are having

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percentage in higher academic examination as mentioned in Guideline No.38. The shortlisting was done by using software and therefore no human intervention was involved. The shortlisting was on the basis that the candidates were to be ten times the number of posts available. It is on the basis of the shortlisting that the candidates were called for the written examination. The non-issuance of the hall tickets for the written examination on account of the shortlisting has triggered of the filing of the above Writ Petitions which as indicated above challenge the modality of the shortlisting carried out by the Respondent No.1.

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7 On behalf of the Respondent No.1 an Affidavit in Reply has been filed by the learned Registrar (Legal and Research). In the said reply a reference has been made to Paragraph 577(i) of the Civil Manual which provides that appointment to all posts in Group-C and Group-D of the Subordinate Judicial Service in the Civil Courts in each District shall be made by the District Judge from the lists of the candidates selected by the Recruitment Committee formed for the purpose in each District. Thereafter a reference has been made to Rule 8 which prescribes qualification for the post of Clerk and Peon. Thereafter a reference is made in respect of the Recruitment Rules for recruitment to Group-C and Group-D services in the Subordinate Judicial Service of the Civil Manual. Thereafter the information as regards the number of applications received pursuant to the advertisement

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dated 28/03/2018 has been mentioned. It is mentioned that the Respondent No.1 received 6,71,524 applications for all posts. It is further mentioned that in terms of Clause 22, the applications were shortlisted as per the criteria which was approved by the Committee. As against 1,013 posts of Stenographer (L.G.) 1808 were shortlisted. Hence in so far as post of Stenographer is concerned the High Court did not receive adequate number of applications to short-list the candidate in 1:10 ratio. In so far as the post of Junior Clerk is concerned, as against 4,738 posts of Junior Clerk 45,500 were shortlisted and as against 3,170 posts of Peon/Hamal 30,430 were shortlisted. The marks obtained by the Petitioners in the process of shortlisting have also been tabulated in the table as annexed at Exhibit-C to the Writ Petition. It is mentioned that the Petitioners did not score sufficient marks as per the shortlisting criteria and hence could not be shortlisted. Thereafter in paragraph 7 of the Affidavit in Reply how preference in respect of the Districts have been dealt with. It is mentioned that the cut-off marks for each District was fixed on the basis of the number of posts vis-a-vis the applications and the marks obtained by the candidates in that District. It is further mentioned that the concerned candidate has to exceed the cut off marks fixed for the District where he has given the 1^st preference for being shortlisted. It is further mentioned that in the first round the candidates who have given 1^st preference for a particular District have been shortlisted. In the event sufficient candidates giving 1^st preference for that District are not available only in that case 2^nd

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shortlist is prepared of candidates who have opted for that District as the 2^nd preference. It is further mentioned that the candidates who have given the said District as 3^rd preference are not considered unless there is short-fall of candidates giving 2^nd preference for that District. It is lastly mentioned that if there are sufficient candidates in any District who have secured the required cut-off marks in the 1^st round, the question of shortlisting on the basis of subsequent preferences would not arise. Thereafter it is mentioned how the case of the Petitioner Dhumal does not fit as per the shortlisting criteria. It is mentioned in paragraph 9 that the modality of shortlisting has been approved by the Division Bench of this Court in Writ Petition No.2729 of 2010 by order dated 08/04/2010 in the previous recruitment process. Thereafter how the case of multiple applications has been dealt with has been mentioned. It is lastly mentioned that the Petitioners have not made out any case on merits and therefore the Writ Petition may be dismissed.

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SUBMISSIONS OF THE LEARNED COUNSEL APPEARING ON BEHALF OF THE PETITIONERS SHRI LAXMAN DESHMUKH IN ORIGINAL SIDE WRIT PETITION (L) NO.2049 OF 2018:-

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A] That since the Petitioners have the basic minimum qualification, they ought to have been permitted to take part in the selection process and not ousted on the basis of short-listing.

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That the short-listing criteria having not been mentioned in the

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Common Instructions, the Respondents could not have short-listed the candidates by evolving the criteria later on and thereby ousting the Petitioners from the selection process.

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C] That the Common Instructions in so far as the post of Junior Clerk is concerned themselves have an inbuilt mechanism in the filtration of the candidates and therefore the modality of the shortlisting could not have been adopted.

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D] That the short-listing of the candidates on the basis of the criteria that has been evolved, cannot be sustained, since the Petitioners have the minimum qualification prescribed for the posts. Reliance is placed on the judgment of the Apex Court reported in (2013) 16 SCC 702 in the matter of Duddilla Srinivasa Sharma and others v/s. V Chrysolite .

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E] That the selection process for the posts of Junior Clerk and Peon/Hamal is vitiated on the aforesaid ground.

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SUBMISSIONS OF THE LEARNED COUNSEL APPEARING ON BEHALF OF THE PETITIONERS SHRI YUWRAJ PATIL IN WRIT PETITION NOS.6632 OF 2018 AND 6633 OF 2018 :-

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I] That apart from the submissions advanced by the learned counsel Shri Laxman Deshmukh, the learned counsel Shri Yuwraj Patil would contend that even as per the short-listing criteria the Petitioner in the aforesaid Writ Petition No.6633 of 2018 has not been given the correct marks as a result of which he has been wrongly shown as not having the cut off marks prescribed for a particular District.

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II] That the Petitioner in Writ Petition No.6632 of 2018 ought not to have been deprived of appearing at the written examination only on the ground that she had approached the District Court belatedly.

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10 The learned counsel appearing for the Petitioners in other Writ Petitions also adopted the submissions advanced by the learned counsel Shri Laxman Deshmukh.

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11 SUBMISSIONS OF THE LEARNED SENIOR COUNSEL APPEARING ON BEHALF OF THE RESPONDENTS-COURTS SHRI S K TALSANIA :-

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That the modality of short-listing candidates if the applications received are unwieldy is well settled position in service jurisprudence. In fact the judgment in Duddilla Srinivasa

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Sharma's case (supra) affirms the said modality.

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ii] That the short-listing was required to be carried out in the instant case in view of the fact that 6,71,524 applications were received for all posts and therefore it was decided that by the process of short-listing the candidates in the ratio of 1:10 should be called for the written examination.

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iii] That the said short-listing criteria has been approved by the Committee consisting of two Hon'ble Judges of this Court and that the short-listing criteria adopted is the same which was adopted for the recruitment drive in 2010.

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iv] That the cut off marks for a particular District have been fixed on the basis of the post available in the said District and maintaining ratio of 1:10.

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v] That the manner in which the weightage has been given to the preferences of the candidates has been succinctly mentioned in paragraph 7 of the Affidavit in Reply filed on behalf of the Respondent No.1. It is only if the adequate number of candidates are not available who have given their 1^st preference for a

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particular District, that the occasion to consider the candidates who had given the particular District as 2^nd preference would arise. The same procedure is followed in respect of the succeeding preferences.

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vi] That the judgment of the Apex Court in Duddilla Srinivasa Sharma's case (supra) revolves around the Rules involved therein and it is in the said circumstances the Apex Court held that the short-listing could not be carried out at the threshold. The said judgment would have no application in the facts of the present case.

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vii] That in the facts of the present case, the short-listing cannot be taken exception to as there is no rule akin to the rules in the case of Duddilla Srinivasa Sharma's (supra) in the instant case. The rationale for short-listing candidates has already been stated in the Affidavit in Reply filed on behalf of the Respondent No.1, and therefore, though the Common Instructions contained a mechanism for filtration, the same would not preclude the Respondent No.1 from short-listing the candidates at the threshold if the number of applications received are unwieldy.

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viii] That in so far as the Petitioner in Writ Petition No.6633 of 2018 is concerned, the submissions advanced by the learned counsel Shri Yuwraj Patil are based on a misconception. The statement-sheets as to how the marks have been assigned and calculated have been annexed to the Affidavit in Reply filed in the said Writ Petition and therefore the submission of the Petitioner in the said Writ Petition that the marks have not been correctly calculated is misconceived.

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ix] That the selection process being at the final stage where only interviews are to be held, no interference is called for with the said selection process.

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CONSIDERATION :-

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12 Having heard the Learned Counsel for the parties we have bestowed our anxious consideration to the rival contentions. As indicated above the fulcrum of the above Writ Petitions is the shortlisting of candidates by the Respondents for appearing at the screening test / written examination for the post of Clerks, Peon / Hamals. The question that therefore arises is whether the Respondents were entitled to adopt the modality of shortlisting or whether criteria adopted for shortlisting was arbitrary and unreasonable is

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sought to be contended on behalf of the Petitioners. In the said context a few facts would have to be revisited. As indicated above an advertisement was issued inviting online applications from eligible candidates who fulfill the criteria for the post of Stenographers (L.G.), Junior Clerks, Peon / Hamal. The said advertisement comprised the Time Table for the said recruitment process which was mentioned as a Recruitment Calendar. It is required to be noted that the date on which the shortlisted candidates would be published was mentioned in the Recruitment Calendar. The said date is at item No.4 of the Recruitment Calendar. The next item is the screening test of the shortlisted candidates for the post of Junior Clerks and Peon / Hamal. Hence the Time Table / Recruitment Calendar made it explicitly clear that there would be shortlisting of candidates which would take place prior to the screening test / written test for the post in question. The Common Instructions to the candidates contains clause (22) which provides that the High Court has reserved the right of shortlisting the candidates on the basis of higher educational qualifications and academic excellence. Hence the criteria for shortlisting the candidates was substantially made clear to the candidates at the out set namely that the shortlist would be on the basis of the higher educational qualification and academic excellence. It is required to be noted that the applications numbering 6,71,524 were received in respect of all the posts. It was decided to shortlist the candidates on the basis of 10 candidates to one post. In so far as the post of Junior clerk is concerned, as against 4,738

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posts 45,500 candidates were shortlisted and in so far as Peon / Hamal are concerned out of 3,170 post 30,430 were shortlisted. As indicated above the shortlisting criteria was evolved and approved by the Committee comprising of two Hon'ble Judges of this Court on 17/06/2017 and the said criteria laid emphasis on the higher qualifications for which marks were assigned in the said shortlisting criteria, for example a candidate who is Post Graduate was granted 25 marks, a candidate who is Law Graduate was assigned 50 marks and a candidate who is Graduate was assigned 25 marks. Similar marks were assigned for HSC, SSC, English Shorthand, Marathi Shorthand etc., For the sake of ready reference the qualifications and the marks assigned are reproduced hereinunder:

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Post Graduate - 25 marks Law Graduate 50 Marks Graduate 25 Marks H.S.C. 15 Marks S.S.C. 10 Marks English Shorthand 100 w.p.m. 10 marks (additional 10 marks per 10 w.p.m.) Marathi Shorthand 80 w.p.m. 10 marks (additional 10 marks per 10 w.p.m.) English Typing 40 w.p.m. 10 marks (additional 10 marks per 10 w.p.m.) Marathi Typing 30 w.p.m. 10 marks (additional 10 marks per 10 w.p.m.) Computer Knowledge 25 marks

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13 It is trite that shortlisting of the candidates can be on the basis of higher qualifications. The said proposition in fact has been accepted by the Apex Court in Duddilla Srinivasa Sharma's case (supra) in support of which the Apex Court in the said case referred to its judgment in S.B.Mathur Vs. Chief Justice of Delhi High Court , reported in 1989 Supp (1) SCC 34 . The Apex Court in fact in Duddilla Srinivasa Sharma's case (supra) found fault with the finding of the High Court that the Applicants could not be shortlisted on the basis of higher qualification. In Duddilla Srinivasa Sharma's case (supra) the judgments in S. Vinod Kumar Vs. Union of India reported in 1996 (6) SCC 580 , and A. P. Public Service Commission Vs. Baloji Badhavath reported in (2009) 5 SCC 1 , were also relied upon. The Apex Court crystallized the law laid down by it in the aforesaid judgments that whenever a particular criterion for shortlisting is adopted, the validity thereof is to be examined keeping in view whether the same is rational and having nexus with the objective sought to be achieved. It would depend on the facts and circumstances of each case as to whether a particular criteria is valid or not. The Apex Court has further observed that whenever there is a particular provision for shortlisting the candidates in the rules or instructions, then the shortlisting is to be resorted to in accordance with the criterion mentioned in those rules and instructions. It is in the context of the aforesaid perceptive of

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the Apex Court that the shortlisting in the instant case would have to be considered. In the instant case as indicated above 6,71,524 applications were

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received for all the posts and therefore it became imperative for the Respondents to shortlist the candidates so as to prune down the number of candidates so as to bring them in the ratio of 10 candidates for one post. The shortlisting was carried out by the criteria which has been referred to in the earlier part of this judgment. One of the basis on which the shortlisting was done was the candidates with higher qualifications and a degree in law, were entitled to more marks. The shortlisting on the basis of the higher qualifications has received the imprimatur of the Apex Court from time to time which has been referred to in the judgment in Duddilla Srinivasa Sharma's case (supra). Having regard to the said criteria and the object behind shortlisting, in our view the said shortlisting fulfills the criteria which has been mentioned by the Apex Court in Duddilla Srinivasa Sharma's case (supra) . It cannot be said that the said shortlisting was on the basis of unreasonable or arbitrary criteria. Since in the instant case the candidates were put to notice about the short-listing by way of mentioning in the Time Table as well as Common Instructions to the candidates in which clause (22) appears, the contention of the Learned Counsel for the Petitioners that all the candidates who had the basic minimum qualification should have been allowed to appear for the exam, cannot be accepted.

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14 In so far as the cut-off marks for a particular District are concerned, how the said marks have been fixed has been mentioned in the

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earlier part of this Judgment. At the cost of repetition, suffice it would be to state that candidates who had given 1^st preference to a particular District were shortlisted in the first round and only if there was short-fall of candidates, then requirement to go to the candidates who have given 2^nd preference for a particular District, was required to be gone through. Hence the candidates having more marks than the cut of marks for a District, was not shortlisted in view of the fact that the said District was not his 1^st preference and that the District in respect of which the candidate has given his 1^st preference, the cut of marks were higher than the marks which the candidate has got as per the shortlisting criteria. In our view therefore, the procedure followed by the Respondent No.1 was fair and therefore it cannot be said that the shortlisting was carried out in an arbitrary manner.

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15 In so far as the candidates who had not collected their hall tickets in time are concerned, it is required to be noted that the procedure was made clear by way of Common Instructions as also mentioning the same in the Time Table/Recruitment Calender. However in spite of the same, there were large number of such candidates i.e. about 15,000 who had not produced the print out of the form for collecting the hall tickets from the concerned District Court. This resulted in the second round being carried out for the issuance of the hall tickets. The Petitioner in Writ Petition No.6632 of 2018 would have availed of the hall tickets in the second round, if she had approached the District Court in

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time. That having not been done so, the Petitioner in the said Writ Petition now cannot have a grievance in respect of the non issuance of the hall tickets. It is required to be noted that the written test is long over and the recruitment process is at the final stage.

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16 In so far as the Petitioners in Writ Petition No.6332 of 2017 and Writ Petition No.6333 of 2017 are concerned, their grievance as urged by the Learned Counsel Mr. Yuwraj Patil is that their marks have not been computed as per the shortlisting criteria. The Learned Senior Counsel appearing for the Respondent No.1 Mr. S K Talsania drew our attention to the statement wherein the marks of the said Petitioners are computed and on such perusal we find that there is no mistake in the computation of the marks of the said Petitioners which fact was also accepted by the Learned Counsel for the Petitioners during the course of the hearing of the said Writ Petitions on the said aspect. In our view therefore the said Petitioners also cannot have a grievance in respect of the shortlisting that was carried out by the Respondent No.1.

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17 Now coming to the judgment of the Apex Court in Duddilla Srinivasa Sharma's case (supra) the said case concerned the recruitment to 17 posts of Junior Assistants in the District and Sessions Court. In so far as the said selection is concerned, the same was carried out under the Andhra Pradesh Judicial Ministerial Service Rules, 2003. The minimum qualification

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prescribed was intermediate examination. As per Guideline 7(a) of the Circular Instructions dated 1-7-1996 the selection process was to start with qualifying written examination for the purpose of shortlisting / screening of candidates whereby those who secured first class or 60% and above were to be preferred over others. The said Guideline 7(a) in the said case read thus :

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7(a) Ministerial service- For the purpose of screening/shortlisting of the applications for the posts in Ministerial Services, the Committee shall take into consideration the marks secured in the qualifying examination and those who secured first class or 60% and above in the qualifying examination may be preferred to others, subject however to the rider, that those having qualification in Typewriting (Higher Grade) or Shorthand and those possessing Law Degree are not denied consideration.

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However, in the said case, shortlisting was done on the basis that only those candidates having degree qualification were sent letters for participating in the selection process i.e. appearing for the qualifying examination. The said process of shortlisting was challenged on the ground that the rule contemplated shortlisting of the candidates only after the qualifying examination was held based on the marks that a candidate gets in the said examination and that the shortlisting could not be done at the threshold. The Apex Court found fault with the process of shortlisting and especially having regard to the said Guideline 7(a) which postulates shortlisting after the qualifying examination. The Apex Court accordingly set aside the selection and directed a denovo process being carried out. In our

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view the said judgment would not further the case of the Petitioners in the instant Petition as in the instant case by clause (22) of the common instructions the candidates have been put to notice that the shortlisting would be resorted to on the basis of higher qualifications and academic excellence. As indicated above the shortlisting criteria which has been evolved pursuant to the said clause (22) has been approved by a Committee of two Hon'ble Judges of this Court. Hence the factual basis in the instant case stands apart from the factual basis in the case of Duddilla Srinivasa Sharma's case (supra). In fact in so far as Duddilla Srinivasa Sharma's case (supra) is concerned, as indicated above the Apex Court has in fact approved the shortlisting on the basis of higher qualification as can be seen from a reading of paragraph 10 of the said judgment.

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18 For the reasons afore-stated, we do not find any merit in the above Writ Petitions. The same are accordingly dismissed. Rule in all the above Writ Petitions is discharged with no order as to costs.

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[K. K. SONAWANE, J]

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[R. M. SAVANT, J]

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Laxmikant Gopal Chandan

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Digitally signed by Laxmikant Gopal Chandan Date: 2018.09.19 17:35:18 +0530

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