Dr. Satish Dhanaji Pawar Director of Public Health and Another Vs. Dr. Mohan Apparao Jadhav, Assistant Director of Health Services and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1175109
CourtMumbai High Court
Decided OnAug-01-2014
Case NumberWrit Petition Nos. 1936 of 2014 & 5951 of 2014
JudgeNARESH H. PATIL & RAVINDRA V. GHUGE
AppellantDr. Satish Dhanaji Pawar Director of Public Health and Another
RespondentDr. Mohan Apparao Jadhav, Assistant Director of Health Services and Others
Excerpt:
naresh h. patil, j. 1. rule. rule made returnable forthwith. heard finally by consent. 2. both these petitions challenge common judgment and order passed in original application no. 360/2012, original application no. 94/2013 and original application no. 95/2013 by maharashtra administrative tribunal dated 27th january, 2014. hence, both petitions are disposed of by common judgment. 3. the petitioner in writ petition no. 1936/2014 was one of the respondents in original applications filed before the tribunal. the applicants before tribunal questioned the shortlisting criteria adopted by the maharashtra public service commission (hereinafter referred to as 'mpsc' in short) for filling up post of director, health services, government of maharashtra. an advertisement was issued bearing no. 184/2012 on 20th january, 2012 for selecting suitable persons to fill up posts of director, health services, maharashtra state. the urban development, public health and housing department had framed recruitment rules for the post of director, health services, maharashtra state on 14th december, 1971. the appointment to the said posts under the rules is to be made by promotion from amongst the joint directors of the health services or transfer of officer from the concerned department of the government of maharashtra or by nomination. the present advertisement was issued for filling up posts by nomination. the recruitment rules lay down essential qualifications and experience. 4. against the subject advertisement, 65 applications were received for a single post. the mpsc applied shortlisting criteria which are reproduced in the impugned judgment in paragraph 17. clause-3 of the criteria no.1 reads as under: “possess experience of health administration, medical relief or family planning in government, zilla parishad or a local body for not less than 10 years out of which at least 1 year experience should be on the post of deputy director and above.” clause-4 of criteria no.2 reads as under: “after acquiring the post graduate qualification possess experience of health administration, medical relief or family planning in government, zilla parishad or a local body for not less than 10 years out of which at least one year experience to be on the post of deputy director or equivalent post (pay scale rs. 15600-39100, grade pay rs. 7600).” 5. by applying the shortlisting criteria, 6 persons were shortlisted. they are named in table-1 in para-30 of the impugned judgment. according to rules normally the ratio of candidates to be called for interview to the post should be 1:3. however, for the post having pay band 4 and above as per the 6th pay commission, the mpsc would decide from time to time the numbers of candidates to be called for the interview. the list of shortlisted candidates ultimately got reduced to 3 of which two candidates are related as husband and wife. the original applicants in substance challenged the procedure adopted by mpsc in shortlisting candidates. their contention was that the mpsc followed unreasonable method in shortlisting the candidates whereby deserving and eligible candidates were excluded from the zone of consideration. the shortlisting method was contrary to the prescribed rules. the conditions stipulated in the advertisement, ratio of 1:3 was given up. it was submitted that once the shortlisting method was prescribed under the advertisement, the mpsc had no authority to deviate from the same. 6. on behalf of respondent mpsc it was submitted that apart from conditions stipulated in the advertisement and method prescribed for shortlisting, the mpsc was entitled to apply additional criteria for shortlisting the candidates. considering the fact that 65 applications were received for filling up one post and looking to the nature of duties attached to the post of director, health services, appropriate additional shortlisting criteria was applied. there was no deviation from any rule. instead, the general rules for selecting candidates provided for such a authority with the mpsc for applying additional criteria. the candidates participating in the selection process were aware of this authority of mpsc, therefore, they are not entitled to contend that at the last moment additional criteria for shortlisting was applied for the purposes of excluding them from the zone of consideration. 7. the maharashtra administrative tribunal considered the record, replies filed and submissions advanced. the tribunal rejected the contentions of the respondent-mpsc and held that the shortlisting criteria were not applied in accordance with the rules and the ratio to be applied normally for the said purpose. the original applications were allowed. in the meantime the post of director, health services was allowed to be filled in. the petitioner herein was selected as director. his appointment was subject to the outcome of the original application. 8. learned counsel mr. amit borkar appearing for the petitioner submitted that successful candidate dr. satish dhanaji pawar filed writ petition no. 1936/2014 challenging the judgment of the tribunal. by an order dated 21st february, 2014 interim order passed by the maharashtra administrative tribunal was continued. the hearing of this petition commenced before us. on 25th june, 2013 the mpsc filed writ petition no. 5951/2014 challenging the same judgment of the tribunal. the said petition was circulated thereafter. notice was issued to the respondents. the respective learned counsel waived notice and adopted the arguments advanced in the proceedings of writ petition no. 1936/2014. the learned counsel appearing for the petitioner mr. dr. satish pawar in wp no. 1936/2014 submitted that the tribunal fell in error in directing to call other applicants for interview. such a direction would amount to rewriting rules, according to the learned counsel. the directions issued in the clause (b) and (g) of the impugned order were unsustainable. the learned counsel submitted that appropriate criteria were applied by mpsc for shortlisting the candidates. the method of shortlisting is widely accepted method. there was nothing wrong on the part of mpsc to apply appropriate criteria in shortlisting the candidates for selecting a suitable, eligible and deserving candidate to occupy important post of director, health services, government of maharashtra. the learned counsel submitted that the view of the tribunal that the shortlisting criteria would deprive others from participating in the selection process is contrary to the established procedure and the authority of the mpsc as prescribed under the general rules provided for application of criteria. the learned counsel submitted that the participating candidates were aware of the procedure and the powers of the mpsc. the learned counsel submitted that additional (jyaada)criteria applied were perfectly under the authority of mpsc. 9. in support of the submissions, the learned counsel for the petitioner placed reliance on the judgment in the case of b. ramakichenin alias balagandhi v/s. union of india and ors. {2008 i scc page 177}. the apex court in the facts of the said case observed in paragraph 16 and 17 as under: “16. even if there is no rule providing for shortlisting nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a shortlisting procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. for example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. in this situation, the procedure of shortlisting can be resorted to by the selection body, even though there is no mention of shortlisting in the rules or in the advertisement. 17. however, for valid shortlisting there have to be two requirements – (i) it has to be on some rational and objective basis. for instance, if selection has to be done on some post for which the minimum essential requirement is a bsc degree, and if there are a large number of eligible applicants, the selection body can resort to shortlisting by prescribing certain minimum marks in bsc and only those who have got such marks may be called for the interview. this can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. thus the procedure of shortlisting is only a practical via media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) if a prescribed method of shortlisting has been mentioned in the rule or advertisement then that method alone has to be followed.” 10. in the case of mukulika s. jawalkar and ors. v/s. state of maharashtra and anr. {2007 (6) mh.l.j. 368}, the division bench of this court in the facts of the said case observed in paragraph-17 as under: “the sole purpose of introducing such scrutiny criteria or interview is to search and select the best amongst the applicants. larger the number of applicants, greater are the difficulties in carrying out a fair selection. in the case of m.p. public service commission vs. navnit kumar potdar, 1994(6) scc 293, the supreme court did indicate that it may not be possible for the selection board to interview large number of candidates completely disproportionate to the number of vacancies. to maintain excellence and real purpose of holding written examination and then interview, it would be necessary to apply reasonable and fair test of shortlisting. more than 500 candidates were permitted to take the written examination for 21 vacancies which itself frustrates the plea of arbitrariness taken by the petitioners. the criteria of shortlisting was uniformly applied to all the candidates at the time of scrutiny of applications and as such the action of the respondents cannot be faulted with.” in the case of mpsc v/s. kisan tukaram more {2011 supp bom cr 448} the division bench in the facts of the case observed in para-20 as under: “the petitioner is, therefore, entitled to shortlist the candidates by applying the aforesaid procedure. the tribunal in the impugned judgment and order has also found fault with the petitioner on the ground that as per the rules of procedure the petitioner could have enhanced the requirement of experience or requirement of higher educational qualification but could not have adopted the criteria of an additional qualification for shortlisting. therefore, the question that also arises is, whether the degree of ll.b. for the purpose of short-listing can be said to be an additional educational qualification in the context of the aforesaid issue.” 11. the learned government pleader mr. s.k. shinde appearing for mpsc concurred with the submissions advanced with regard to principles of shortlisting methods and powers of mpsc by the learned counsel for the petitioner. the counsel submits that under the general rules of recruitment under rule 3.2 additional qualifications or additional experience could be one of the criteria for further shortlisting the candidates. accordingly after applying the initial criteria in accordance with the powers conferred by the general rules, mpsc had applied further shortlisting criteria for selecting the best suitable persons. in the submissions of the government pleader there may be many candidates who would be eligible to apply against an advertisement but by applying shortlisting criteria the recruitment agency is well within its powers to select a suitable candidate. in the facts of the case, the learned government pleader submitted that applying the shortlisting criteria like experience of ten years out of which one year experience on the post of dy. director was keeping in view the duties attached to the post of director, health services. the said shortlisting criteria was not applied to exclude particular applicants so as to cause prejudice to the interest of the original applicants. it was submitted that considering the law laid down in this behalf the mpsc was well within its powers to lay down such criteria. the general principle of selecting candidates, the conditions of advertisement and the duties attached to the post required application of such criteria. in the submissions there was nothing wrong, unreasonable or unwarranted on the part of mpsc to apply such rules and criteria. 12. the learned counsel mr. karnik appearing for the respondent no.5 in writ petition no. 1936/2014 submitted that once the condition was put in advertisement in respect of the shortlisting method, then the respondent cannot fall back on general conditions. the plea raised by the mpsc before the tribunal was based on prescribed rules and not on general conditions for selection of candidates more particularly rule no. 3.2 as is canvassed before this court now. the learned counsel submitted that method 1:3 ratio was given up when the mpsc shortlisted 6 candidates. the mpsc had no authority to further shortlist candidates by bringing down number of candidates from 6 to 3 out of which 2 were such candidates who were husband and wife inter se. the learned counsel had referred to the conditions of advertisement wherein under the caption 'experience' the criteria for candidates having ten years experience was mentioned. the learned counsel submitted that the tribunal after going through the entire record has rightly rejected the contentions of the petitioners and mpsc. the view of the tribunal is based on sound reasoning. in the facts of the case, the learned counsel urged that no interference is warranted in the view adopted by the tribunal. it was submitted that for selecting best of the talent the mpsc could have widened the zone of consideration. even the six candidates who were shortlisted were not called for interview for obvious reasons. the list was curtailed down to 3. it demonstrates that for extraneous purposes the mpsc adopted criteria which had excluded the contesting respondents and others from the zone of consideration. considering the vital and important duties attached to the post of directors, it was necessary that mpsc had adopted such criteria which provided them an opportunity to select best of the persons out of shortlisted candidates. the learned counsel made it clear that he is not objecting to the shortlisting criteria being adopted but in the facts of the case the methods and criteria applied and adopted were highly arbitrary and indicative of predetermined approach by the mpsc. 13. learned counsel mr. n.d. thombre adopted the arguments advanced by learned counsel mr. m.s. karnik in support of his submissions. 14. learned counsel appearing for respondent no.1 has placed reliance on following judgments:- 1) gaurav tripathi v/s. state of u.p. and ors. {2010(78) alr 525}. 2) maharashtra public service commission v/s. mr. bennishirur vasim ahmed and ors. in writ petition no. 532/2013. 15. we have perused the record placed before us, the general conditions of recruitment, more precisely rule 3.2 and the reasoning adopted by the tribunal. 16. the settled principle in respect of selection procedure is that the mpsc could adopt rational procedure to shortlist the candidates to be called for interview. 17. we have perused the views of kothari committee's report on “recruitment policy and selection methods for the civil services examination” as reproduced in paragraph 14 of the judgment of mukulika v/s. state of maharashtra (cited supra). the parties do not dispute the proposition for providing of shortlisting criteria as part of process of selection. the purpose of introducing scrutiny criteria or interview is to search and select the best of the talent. at the same time it is essential to apply reasonable and fair test of shortlisting. it is natural that shortlisting criteria and methods applied and adopted would give rise to various objections as in the process of sizeable section of applicants are excluded from zone of consideration but at the same time it has to be borne in mind that there is no indefeasible, legal much less the fundamental right vested in a applicant to claim appointment to a post. 18. in the subject advertisement the mpsc had prescribed the required qualification and experience of the applicants. it was also mentioned in clause-5 that additional qualification or experience would also be one of the criteria for calling applicants for interview and on the same criteria the number of candidates would be shortlisted. the question is whether these criteria were reasonably, rationally and fairly applied, keeping in view the duties and responsibilities attached to the office of the director of health services, government of maharashtra. the tribunal after considering the material placed before it, was of the view that the shortlisting criteria applied was not within the scope of recruitment rules and it should not militate against the candidature of number of medical and health professional in such a way that it serves only a select few. the tribunal further observed that experience of an applicant as a dy. director, having administrative experience, cannot override essential requirements as envisaged in the relevant rules framed for selecting a director. 19. the tribunal further observed in paragraph 28 of the judgment that if medical professionals working in hospital and medical colleges were not to be considered and only those with experience as dy. director are considered, it becomes almost like selecting a candidate on promotion rather than on nomination. it was observed that after applying the shortlisting criteria six persons were shortlisted. out of them two were not interviewed. one was interviewed and rejected meaning thereby that from six persons the mpsc further shortlisted and brought down the number of applicants to three. it appears to the tribunal that unreasonable shortlisting criteria was applied which was tailor-made to suit a few, at the expense of more deserving candidates. some of the candidates were having longer services and were belonging to backward class and some of them are in public health department. 20. from the record placed before us and submissions advanced, we find that the rules framed by the health department indicate that the subject post was to be filled by nomination and not by promotion this time. we also perused the rules called the maharashtra public service commission rules and procedures 2005. rule-9 refers to direct recruitment. we have perused the simple copy of rules produced on record during the course of hearing which are said to be instructions to the applicants. rule 3.2 refers to screening of applications and the shortlisting criteria. 21. the question is as to what was the rationale behind prescribing additional shortlisting criteria by the mpsc which was disclosed in the affidavit-in-reply filed by mpsc before the tribunal. in paragraph-17 of the judgment of the tribunal, these criteria are reproduced. one of the criteria of shortlisting was that the candidate should be possessing experience on the post of dy. director which post is two steps below the director. it is the view of mpsc that selecting a dy. director for the post of director would be more suitable as the candidate is aware of the duties attached to the said posts. his administrative experience would be of immense help to the state government. applying the criteria of having one year experience as a dy. director has further excluded eligible candidates from the zone of consideration in our view. the mpsc was to select a candidate by adopting method of nomination and not promotion. while adopting the method for nomination, it was necessary for mpsc to interview respondents and/or other deserving candidates who had qualifications to hold the said post. restricting the selection process by inviting dy. directors alone in our view was not a fair criteria adopted by mpsc. it is strange to notice that out of six candidates shortlisted by mpsc, two were not interviewed and one interviewed was rejected. many candidates having longer experience were not called in the process. it would have helped the mpsc if some more applicants were allowed to be interviewed in selecting best of the talent suitable for the post. 22. in the light of directions in clause (d) of the impugned order, we are of the view that directions issued in clause (b) of the order is not necessary. insofar as clause (g) of the impugned order of the tribunal is concerned, it refers to professionals in medical colleges and medical services. from the facts of the case and considering the rules, conditions stipulated in advertisement and the aforesaid discussion, we are of the view that clause (g) of the direction issued by the tribunal is excessive in nature. to that extent, we are inclined to modify the order passed by the tribunal. 23. we are of the view that the shortlisting method adopted by the mpsc was lacking rational basis. the tribunal has in detail considered the issues raised by the contesting parties after going through the relevant record and rules framed for the said purpose. the tribunal has adopted a sound and reasonable approach in our view. 24. the petition is partly allowed. the directions issued in clauses (b) and (g) of the impugned order of the tribunal are quashed and set aside. rule is made partly absolute in the above terms.
Judgment:

Naresh H. Patil, J.

1. Rule. Rule made returnable forthwith. Heard finally by consent.

2. Both these petitions challenge common judgment and order passed in original application no. 360/2012, original application no. 94/2013 and original application no. 95/2013 by Maharashtra Administrative Tribunal dated 27th January, 2014. Hence, both petitions are disposed of by common judgment.

3. The petitioner in Writ Petition No. 1936/2014 was one of the respondents in original applications filed before the Tribunal. The applicants before Tribunal questioned the shortlisting criteria adopted by the Maharashtra Public Service Commission (hereinafter referred to as 'MPSC' in short) for filling up post of Director, Health Services, Government of Maharashtra. An advertisement was issued bearing No. 184/2012 on 20th January, 2012 for selecting suitable persons to fill up posts of Director, Health Services, Maharashtra State. The Urban Development, Public Health and Housing Department had framed Recruitment Rules for the post of Director, Health Services, Maharashtra State on 14th December, 1971. The appointment to the said posts under the rules is to be made by promotion from amongst the joint Directors of the Health Services or transfer of officer from the concerned department of the Government of Maharashtra or by nomination. The present advertisement was issued for filling up posts by nomination. The Recruitment Rules lay down essential qualifications and experience.

4. Against the subject advertisement, 65 applications were received for a single post. The MPSC applied shortlisting criteria which are reproduced in the impugned judgment in paragraph 17. Clause-3 of the Criteria No.1 reads as under:

“Possess experience of Health Administration, Medical Relief or Family Planning in Government, Zilla Parishad or a local body for not less than 10 years out of which at least 1 year experience should be on the post of Deputy Director and above.”

Clause-4 of Criteria no.2 reads as under:

“After acquiring the post graduate qualification possess experience of Health Administration, Medical Relief or Family Planning in Government, Zilla Parishad or a local body for not less than 10 years out of which at least one year experience to be on the post of Deputy Director or equivalent post (Pay Scale Rs. 15600-39100, Grade Pay Rs. 7600).”

5. By applying the shortlisting criteria, 6 persons were shortlisted. They are named in Table-1 in para-30 of the impugned judgment. According to Rules normally the ratio of candidates to be called for interview to the post should be 1:3. However, for the post having Pay Band 4 and above as per the 6th Pay Commission, the MPSC would decide from time to time the numbers of candidates to be called for the interview. The list of shortlisted candidates ultimately got reduced to 3 of which two candidates are related as husband and wife. The original applicants in substance challenged the procedure adopted by MPSC in shortlisting candidates. Their contention was that the MPSC followed unreasonable method in shortlisting the candidates whereby deserving and eligible candidates were excluded from the zone of consideration. The shortlisting method was contrary to the prescribed rules. The conditions stipulated in the advertisement, ratio of 1:3 was given up. It was submitted that once the shortlisting method was prescribed under the advertisement, the MPSC had no authority to deviate from the same.

6. On behalf of respondent MPSC it was submitted that apart from conditions stipulated in the advertisement and method prescribed for shortlisting, the MPSC was entitled to apply additional criteria for shortlisting the candidates. Considering the fact that 65 applications were received for filling up one post and looking to the nature of duties attached to the post of Director, Health Services, appropriate additional shortlisting criteria was applied. There was no deviation from any rule. Instead, the general rules for selecting candidates provided for such a authority with the MPSC for applying additional criteria. The candidates participating in the selection process were aware of this authority of MPSC, therefore, they are not entitled to contend that at the last moment additional criteria for shortlisting was applied for the purposes of excluding them from the zone of consideration.

7. The Maharashtra Administrative Tribunal considered the record, replies filed and submissions advanced. The Tribunal rejected the contentions of the respondent-MPSC and held that the shortlisting criteria were not applied in accordance with the rules and the ratio to be applied normally for the said purpose. The original applications were allowed. In the meantime the post of Director, Health Services was allowed to be filled in. The petitioner herein was selected as Director. His appointment was subject to the outcome of the original application.

8. Learned Counsel Mr. Amit Borkar appearing for the petitioner submitted that successful candidate Dr. Satish Dhanaji Pawar filed Writ Petition No. 1936/2014 challenging the judgment of the Tribunal. By an order dated 21st February, 2014 interim order passed by the Maharashtra Administrative Tribunal was continued. The hearing of this petition commenced before us. On 25th June, 2013 the MPSC filed Writ Petition No. 5951/2014 challenging the same judgment of the Tribunal. The said petition was circulated thereafter. Notice was issued to the respondents. The respective learned Counsel waived notice and adopted the arguments advanced in the proceedings of Writ Petition no. 1936/2014. The learned Counsel appearing for the petitioner Mr. Dr. Satish Pawar in WP No. 1936/2014 submitted that the Tribunal fell in error in directing to call other applicants for interview. Such a direction would amount to rewriting rules, according to the learned Counsel. The directions issued in the clause (b) and (g) of the impugned order were unsustainable. The learned Counsel submitted that appropriate criteria were applied by MPSC for shortlisting the candidates. The method of shortlisting is widely accepted method. There was nothing wrong on the part of MPSC to apply appropriate criteria in shortlisting the candidates for selecting a suitable, eligible and deserving candidate to occupy important post of Director, Health Services, Government of Maharashtra. The learned Counsel submitted that the view of the Tribunal that the shortlisting criteria would deprive others from participating in the selection process is contrary to the established procedure and the authority of the MPSC as prescribed under the general rules provided for application of criteria. The learned Counsel submitted that the participating candidates were aware of the procedure and the powers of the MPSC. The learned Counsel submitted that additional (jyaada)criteria applied were perfectly under the authority of MPSC.

9. In support of the submissions, the learned Counsel for the petitioner placed reliance on the judgment in the case of B. Ramakichenin alias Balagandhi v/s. Union of India and ors. {2008 I SCC page 177}. The Apex Court in the facts of the said case observed in paragraph 16 and 17 as under:

“16. Even if there is no rule providing for shortlisting nor any mention of it in the advertisement calling for applications for the post, the selection body can resort to a shortlisting procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of shortlisting can be resorted to by the selection body, even though there is no mention of shortlisting in the rules or in the advertisement.

17. However, for valid shortlisting there have to be two requirements –

(i) it has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a Bsc degree, and if there are a large number of eligible applicants, the selection body can resort to shortlisting by prescribing certain minimum marks in BSc and only those who have got such marks may be called for the interview. This can be done even if the rule or advertisement does not mention that only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of shortlisting is only a practical via media which has been followed by the Courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; (ii) if a prescribed method of shortlisting has been mentioned in the rule or advertisement then that method alone has to be followed.”

10. In the case of Mukulika S. Jawalkar and ors. v/s. State of Maharashtra and anr. {2007 (6) Mh.L.J. 368}, the Division Bench of this Court in the facts of the said case observed in paragraph-17 as under:

“The sole purpose of introducing such scrutiny criteria or interview is to search and select the best amongst the applicants. Larger the number of applicants, greater are the difficulties in carrying out a fair selection. In the case of M.P. Public Service Commission vs. Navnit Kumar Potdar, 1994(6) SCC 293, the Supreme Court did indicate that it may not be possible for the Selection Board to interview large number of candidates completely disproportionate to the number of vacancies. To maintain excellence and real purpose of holding written examination and then interview, it would be necessary to apply reasonable and fair test of shortlisting. More than 500 candidates were permitted to take the written examination for 21 vacancies which itself frustrates the plea of arbitrariness taken by the petitioners. The criteria of shortlisting was uniformly applied to all the candidates at the time of scrutiny of applications and as such the action of the respondents cannot be faulted with.”

In the case of MPSC v/s. Kisan Tukaram More {2011 Supp Bom CR 448} the Division Bench in the facts of the case observed in para-20 as under:

“The petitioner is, therefore, entitled to shortlist the candidates by applying the aforesaid procedure. The Tribunal in the impugned judgment and order has also found fault with the Petitioner on the ground that as per the Rules of Procedure the petitioner could have enhanced the requirement of experience or requirement of higher educational qualification but could not have adopted the criteria of an additional qualification for shortlisting. Therefore, the question that also arises is, whether the degree of LL.B. for the purpose of short-listing can be said to be an additional educational qualification in the context of the aforesaid issue.”

11. The learned Government Pleader Mr. S.K. Shinde appearing for MPSC concurred with the submissions advanced with regard to principles of shortlisting methods and powers of MPSC by the learned Counsel for the petitioner. The Counsel submits that under the general rules of recruitment under rule 3.2 additional qualifications or additional experience could be one of the criteria for further shortlisting the candidates. Accordingly after applying the initial criteria in accordance with the powers conferred by the general rules, MPSC had applied further shortlisting criteria for selecting the best suitable persons. In the submissions of the Government Pleader there may be many candidates who would be eligible to apply against an advertisement but by applying shortlisting criteria the recruitment agency is well within its powers to select a suitable candidate. In the facts of the case, the learned Government Pleader submitted that applying the shortlisting criteria like experience of ten years out of which one year experience on the post of Dy. Director was keeping in view the duties attached to the post of Director, Health Services. The said shortlisting criteria was not applied to exclude particular applicants so as to cause prejudice to the interest of the original applicants. It was submitted that considering the law laid down in this behalf the MPSC was well within its powers to lay down such criteria. The general principle of selecting candidates, the conditions of advertisement and the duties attached to the post required application of such criteria. In the submissions there was nothing wrong, unreasonable or unwarranted on the part of MPSC to apply such rules and criteria.

12. The learned Counsel Mr. Karnik appearing for the respondent no.5 in Writ Petition No. 1936/2014 submitted that once the condition was put in advertisement in respect of the shortlisting method, then the respondent cannot fall back on general conditions. The plea raised by the MPSC before the Tribunal was based on prescribed rules and not on general conditions for selection of candidates more particularly rule no. 3.2 as is canvassed before this Court now. The learned Counsel submitted that method 1:3 ratio was given up when the MPSC shortlisted 6 candidates. The MPSC had no authority to further shortlist candidates by bringing down number of candidates from 6 to 3 out of which 2 were such candidates who were husband and wife inter se. The learned Counsel had referred to the conditions of advertisement wherein under the caption 'experience' the criteria for candidates having ten years experience was mentioned. The learned Counsel submitted that the Tribunal after going through the entire record has rightly rejected the contentions of the petitioners and MPSC. The view of the Tribunal is based on sound reasoning. In the facts of the case, the learned Counsel urged that no interference is warranted in the view adopted by the Tribunal. It was submitted that for selecting best of the talent the MPSC could have widened the zone of consideration. Even the six candidates who were shortlisted were not called for interview for obvious reasons. The list was curtailed down to 3. It demonstrates that for extraneous purposes the MPSC adopted criteria which had excluded the contesting respondents and others from the zone of consideration. Considering the vital and important duties attached to the post of Directors, it was necessary that MPSC had adopted such criteria which provided them an opportunity to select best of the persons out of shortlisted candidates. The learned Counsel made it clear that he is not objecting to the shortlisting criteria being adopted but in the facts of the case the methods and criteria applied and adopted were highly arbitrary and indicative of predetermined approach by the MPSC.

13. Learned Counsel Mr. N.D. Thombre adopted the arguments advanced by learned Counsel Mr. M.S. Karnik in support of his submissions.

14. Learned Counsel appearing for respondent no.1 has placed reliance on following judgments:-

1) Gaurav Tripathi v/s. State of U.P. and ors. {2010(78) ALR 525}.

2) Maharashtra Public Service Commission v/s. Mr. Bennishirur Vasim Ahmed and ors. in Writ Petition No. 532/2013.

15. We have perused the record placed before us, the general conditions of recruitment, more precisely Rule 3.2 and the reasoning adopted by the Tribunal.

16. The settled principle in respect of selection procedure is that the MPSC could adopt rational procedure to shortlist the candidates to be called for interview.

17. We have perused the views of Kothari Committee's report on “Recruitment Policy and Selection Methods for the Civil Services Examination” as reproduced in paragraph 14 of the judgment of Mukulika v/s. State of Maharashtra (cited supra). The parties do not dispute the proposition for providing of shortlisting criteria as part of process of selection. The purpose of introducing scrutiny criteria or interview is to search and select the best of the talent. At the same time it is essential to apply reasonable and fair test of shortlisting. It is natural that shortlisting criteria and methods applied and adopted would give rise to various objections as in the process of sizeable section of applicants are excluded from zone of consideration but at the same time it has to be borne in mind that there is no indefeasible, legal much less the fundamental right vested in a applicant to claim appointment to a post.

18. In the subject advertisement the MPSC had prescribed the required qualification and experience of the applicants. It was also mentioned in clause-5 that additional qualification or experience would also be one of the criteria for calling applicants for interview and on the same criteria the number of candidates would be shortlisted. The question is whether these criteria were reasonably, rationally and fairly applied, keeping in view the duties and responsibilities attached to the office of the Director of Health Services, Government of Maharashtra. The Tribunal after considering the material placed before it, was of the view that the shortlisting criteria applied was not within the scope of recruitment rules and it should not militate against the candidature of number of medical and health professional in such a way that it serves only a select few. The Tribunal further observed that experience of an applicant as a Dy. Director, having administrative experience, cannot override essential requirements as envisaged in the relevant rules framed for selecting a Director.

19. The Tribunal further observed in paragraph 28 of the judgment that if medical professionals working in hospital and medical colleges were not to be considered and only those with experience as Dy. Director are considered, it becomes almost like selecting a candidate on promotion rather than on nomination. It was observed that after applying the shortlisting criteria six persons were shortlisted. Out of them two were not interviewed. One was interviewed and rejected meaning thereby that from six persons the MPSC further shortlisted and brought down the number of applicants to three. It appears to the Tribunal that unreasonable shortlisting criteria was applied which was tailor-made to suit a few, at the expense of more deserving candidates. Some of the candidates were having longer services and were belonging to backward class and some of them are in public health department.

20. From the record placed before us and submissions advanced, we find that the rules framed by the Health Department indicate that the subject post was to be filled by nomination and not by promotion this time. We also perused the rules called the Maharashtra Public Service Commission Rules and Procedures 2005. Rule-9 refers to direct recruitment. We have perused the simple copy of rules produced on record during the course of hearing which are said to be instructions to the applicants. Rule 3.2 refers to screening of applications and the shortlisting criteria.

21. The question is as to what was the rationale behind prescribing additional shortlisting criteria by the MPSC which was disclosed in the affidavit-in-reply filed by MPSC before the Tribunal. In paragraph-17 of the judgment of the Tribunal, these criteria are reproduced. One of the criteria of shortlisting was that the candidate should be possessing experience on the post of Dy. Director which post is two steps below the Director. It is the view of MPSC that selecting a Dy. Director for the post of Director would be more suitable as the candidate is aware of the duties attached to the said posts. His administrative experience would be of immense help to the State Government. Applying the criteria of having one year experience as a Dy. Director has further excluded eligible candidates from the zone of consideration in our view. The MPSC was to select a candidate by adopting method of nomination and not promotion. While adopting the method for nomination, it was necessary for MPSC to interview respondents and/or other deserving candidates who had qualifications to hold the said post. Restricting the selection process by inviting Dy. Directors alone in our view was not a fair criteria adopted by MPSC. It is strange to notice that out of six candidates shortlisted by MPSC, two were not interviewed and one interviewed was rejected. Many candidates having longer experience were not called in the process. It would have helped the MPSC if some more applicants were allowed to be interviewed in selecting best of the talent suitable for the post.

22. In the light of directions in clause (d) of the impugned order, we are of the view that directions issued in clause (b) of the order is not necessary. Insofar as clause (g) of the impugned order of the Tribunal is concerned, it refers to professionals in medical colleges and medical services. From the facts of the case and considering the rules, conditions stipulated in advertisement and the aforesaid discussion, we are of the view that clause (g) of the direction issued by the Tribunal is excessive in nature. To that extent, we are inclined to modify the order passed by the Tribunal.

23. We are of the view that the shortlisting method adopted by the MPSC was lacking rational basis. The Tribunal has in detail considered the issues raised by the contesting parties after going through the relevant record and rules framed for the said purpose. The Tribunal has adopted a sound and reasonable approach in our view.

24. The petition is partly allowed. The directions issued in clauses (b) and (g) of the impugned order of the Tribunal are quashed and set aside. Rule is made partly absolute in the above terms.