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Judgment
S.M. Daud, J.—The short point for determination in this Writ Petition under Article 226 of the Constitution of India is the constitutionality of the criteria evolved by respondents Nos. 1 and 2 resulting in the exclusion of the petitioner from being interviewed for selection to the post of a Ward Officer as per the advertisement dated October 14, 1985.
The question formulated above requires consideration in the following background:--
Petitioner is in the Security Department of respondent No. 3 since before 1975. He is a B.A. (Hons.) from the Pune University and holds a Post Graduate Diploma in Local Self Government Administration. As from September 16, 1975 the petitioner was working as an Assistant Security Officer. The basic pay-scale attached to this post was Rs. 400/- to Rs. 700/- per month, but petitioner was appointed on a higher salary of Rs. 550/- per month. On December 9, 1982, the petitioner was promoted and appointed to the post of Security Officer which is the topmost post in the Security Department. This selection to a promotion post as also the one proceeding it, was done through the Maharashtra Public Service Commission. By Standing Committee Resolution No. 1312 of September 7, 1983, the Bombay Municipal Corporation, revised the basic pay-scales of various posts. Consequent to this revision, petitioner''s pay came to be revised with retrospective date as from January 1979, and, his basic pay was fixed at Rs. 1,245/- per month. At the date of this petition, the petitioner''s basic salary was Rs. 1,395/-. There were certain other posts in the B.M.C., three of them being those of Assistant Labour Officer, Office Superintendent and Sub-Engineer, the holders whereof initially, had a pay-scale of Rs. 400/- to Rs. 700/1 per month. In the 1983 revision, the pay-scales of these posts were raised upward and taken to Rs. 920/- to Rs. 1,450/-. As against this, pay-revision in the case of an Assistant Security Officer was from Rs. 795/- to Rs. 1,265/- per month. On October 14, 1985, the Maharashtra Public Service Commission issued an advertisement inviting applications to fill up 8 vacancies for the post of Ward Officers. The paragraph in the advertisement with which we are here concerned, read thus:
Candidate must-
(1) possess a degree in Arts, Science, Law, Commerce, Medicine or Engineering of a Tecognised University or any equivalent qualifications, and
(2) have administrative, executive or Supervisory experience in a responsible capacity for not less than 5 years in Government, Semi-Government or any big industrial or commercial concern.
Petitioner was one amongst the many who had applied. The copy of the application sent by him is at Exhibit ''B'' being an annexure to the petition. Some aspirants had received a call for being interviewed and petitioner had not. Therefore, on January 2, 1986 he wrote a letter to the Maharashtra Public Service Commission vide Exhibit ''C and to the extent relevant the same reads thus: -
On previous occasion I was called for the post of Ward Officer when I was working as Asst. Security Officer in Bombay Municipal Corporation in the grade of Rs. 400-700. I was appointed as Asstt. Security Officer on May 16, 1975 by M.P.S.C. selection, as such I put in more than 10 years of administrative experience.
I may however mention here that I was selected for the post of Security Officer by M.P.S.C. and was appointed with effect from December 9, 1982 and the revised pay scale is Rs. 1245-1930. I am working as Head of the Department as a Security Officer for the last about 2 years and 11 3/4 months.
The only reason for petitioner''s exclusion was that he did not comply with the following criteria:
Candidates working under the Municipal Corporation of Greater Bombay holding non-technical posts should have at least total 10 years administrative, executive or supervisory experience in a responsible capacity of which 5 years should be in a post carrying pay-scale in the minimum of which is Rs. 920/- or more.,
The petitioner contends that the requirement that he should have completed 5 years in a post carrying a pay-scale, the minimum of which is Rs. 920/-or more, to be eligible for being considered for the post of a Ward Officer, was arbitrary and irrational. These who were previously his equals had suddenly became eligible for consideration, whereas he, the more deserving than them, had become disqualified by the evolution of an irrational qualification. The reply is that the Maharashtra Public Service Commission has a right to evolve a rational method for short-listing, where the applications are disproportionately large qua the number of posts to be filled, and that the criterion where under petitioner came to be excluded is perfectly reasonable. There is no merit in the reply given by the Maharashtra Public Service Commission and the petition is allowed for the reasons given below:-
A somewhat similar qualification was the subject of an appeal brought by the Special Leave before the Supreme Court. The decision of that Court is reported in State of Orissa and Another Vs. N.N. Swamy and Others, . In the judgment, Goswami J. speaking for the Bench, had this to say (at p. para:-
It is thus clear that the condition of drawing of Rs. 600/- or more on the date of taking over, which has been laid down in the said circular as a particular qualification for eligibility for appointment as Reader and later for consideration of their suitability by the Public Service Commission for appointment as Reader, is arbitrary and discriminatory. This condition has no nexus, whatever, with the object underlying the qualification test in an educational institution having regard to the most essential condition of intrinsic quality and efficiency of the teachers.... It is one thing to lay down appropriate educational and intelligibly relevant qualifications for certain posts in a college and also teaching experience of a specified duration but complete ignoration, without experience of a lecturer in a private college, otherwise qualified, on the sole ground of drawing-a particular amount of salary on a particular date cannot be countenanced...This ground is most unreasonable differentiation in picking and choosing from amongst the employees similarly situated on an absolutely artificial and irrelevant consideration results in denial of equal opportunity to the respondents in the matter of employment under the Government under Article 16 of the Constitution.
[Underlined portion is shown in italics herein - Editors].
The words reproduced above apply with equal force to the situation here. The petitioner had held non-technical posts for the duration 10 years. These posts gave him administrative, executive and supervisory experience. There is no denial that the posts which he held were responsible in nature. At least since 1975, as the Assistant Security Officer, he was the holder of a responsible post and the work involved administrative, executive and supervisory duties. To lay down a further qualification that he should have been in a post carrying in pay-scale the minimum of Rs. 920/-, is totally unmeaning. There are posts which begin at a humble figure and go to astronomical heights. The rise is on account of an increase in responsibility, strain and skill. Yet if the criteria evolved by the Maharashtra Public Service Commission for short-listing is accepted, that would penalise, the holder of the responsible post, because that post be one which had a humble beginning at the start. Mr. Bora argues that fixing the minimum and maximum in a pay-scale for various posts in a matter for the Executive to decide and Courts should accept the classification made by them. In the instant case what is in question is the evolving of a totally unconnected incident of service to rule upon the eligibility of a candidate for consideration to a higher post.
There is another ground, and of equal importance, for striking down the criterion evolved. As a result of (sic) revision of 1983, Assistant Labour Officers, Office Superintendents (sic) became eligible for being considered for promotion to the (sic) ward Officer. Until the Revision, an Assistant Security Officer was in the pay scale of Rs. 400/- to Rs. 700/-. The pay revision dealt differently with the Assistant Security Officers on the one hand and the other three posts on the other hand. Because of the rule of retrospective operation, the holders of three posts become eligible for the post of a Ward Officer. The Assistant Security Officer had his salary raised, but the rise was not such as to place him on par with his erstwhile equals vis-a-vis aspirants for the higher post of a Ward Officer. Therefore, as artificial dividing line was created between equals and the basis for that division was nothing more weighty than the fall of the dice. For this reason also, the exclusion of the petitioner has to be quashed.
The result of the foregoing discussion is that the petition succeeds. Unless petitioner becomes ineligible for consideration for the post of a Ward Officer on a ground other than that put forth by the Maharashtra Public Service Commission, Respondent No. 2 is hereby directed to issue an interview call to him. It shall thereafter assess his suitability-cum-merit, vis-a-vis other candidates and if he be found suitable appoint petitioner to the post of a Ward Officer in the Bombay Municipal Corporation. Rule made absolute in the above terms. Petitioner to get his costs from respondent No. 4. All the respondents are left to bear their own costs. Operation of the judgment stayed for a period of one month at the request of the counsel representing respondents.