2011(1) ALL MR 157
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.K. DESHMUKH AND N.D. DESHPANDE, JJ.

Dr. Jivba R. Keluskar Vs. The Municipal Corporation Of Gr. Bombay & Ors.

Writ Petition No.2013 of 1995

24th September, 2010

Petitioner Counsel: Mr. RAJEEV PATIL i/b Mr. DUSHYANT PUREKAR
Respondent Counsel: Mr. A. Y. SAKHARE,Ms. U. S. GHARAPKAR,Mr. B. V. BUKHARI

Constitution of India, Art.16 - Appointment - Post of Research Officer under Municipal Corporation - Corporation constituted committee of experts - Committee found that alternative qualification for said post is more appropriate than Doctorate - Alternative qualification is relevant and introduced without malafide intention - Appointment of respondent with alternative qualification is liable to be sustained. (Para 3)

JUDGMENT

D. K. DESHMUKH, J.:- By this petition, the petitioner takes exception to the appointment of respondent no.5 as Research Officer in the Education Department. The case of the petitioner is that at the relevant time he was working as an Administrative Officer under the Bombay Municipal Corporation. According to the petitioner, while filling in the post of Research Officer under the Corporation, Ph.D. was always the qualification. According to the petitioner, an advertisement was issued on 5th February, 1994 inviting applications for the post of Research Officer. That time also, possessing a Doctorate Degree in Education of a recognised university was insisted upon. After that advertisement was published, it appears that a representation was made by one of the employees working in the Corporation before the Additional Municipal Commissioner that Diploma in Educational Planning & Administration being conducted by the National Institute of Education Planning & Administration, New Delhi (NIEPA) be included as an alternative qualification to the Ph.D. in the advertisement to the post of Research Officer. This suggestion was accepted and the post was re-advertised on 15th February, 1995. At that time, as an alternative to Ph.D., Diploma of NIEPA in Research of the duration of not less than 6 months was prescribed as a qualification. The petitioner, it appears, applied but was not selected and instead respondent no.5 was selected and appointed. At that time, the petitioner approached this Court by challenging the said appointment. By an order dated 13th November, 1995, the Court admitted the petition for final hearing. In that order, the Court observed thus :

"However, in such cases the Corporation is normally required to call for a report of an academician before introducing a new educational qualification."

2. It appears that, therefore, the Corporation constituted a Committee consisting of two Additional Municipal Commissioners and Dr. M. N. Deshmukh, Principal, K.J. Somaiya College of Education as an expert from Bombay University. That committee submitted its report to the Corporation and after detailed discussions, the Committee made the following suggestions to the Corporation in relation to the qualification required for the post of Research Officer. Para 7 of the report reads as under :

"(1) The candidate should have the minimum qualification of Master's Degree in Education in second class, preferably including the subject of Statistical Methods.

(2) The candidate should also have a Diploma from NIEPA or a similar institution in the educational field. This Diploma should be preferably in educational research, planning and administration.

(3) The candidate must have experience of a minimum of 7 years after his securing the minimum qualification of post graduate degree and acquisition of the relevant diploma."

It appears that this report was placed before the Court. While considering this petition, the Court by an order dated 11th January, 1996 refused interim relief after referring to the report of the Committee.

3. We have heard the learned counsel appearing for both the sides. Perusal of the record shows that the principal challenge to the change in the qualification or in other words introduction of alternative qualification was that it has been done only to favour respondent no.5 and there is no justification for doing it. In our opinion, that challenge cannot be accepted in view of the report submitted by the Committee which was constituted by the Corporation. Perusal of that report shows that according to the Committee, the alternative qualification is more appropriate than Ph.D. for the post of Research Officer. In our opinion, the question as to what will be the appropriate qualification for appointment to a particular post is to be decided by the body in consultation with the experts in the field and unless prescription of the qualification by the employer is found to be either contrary to any statutory provision or is proved to be actuated by malice, this Court in its extraordinary jurisdiction under the Constitution is not justified in interfering with the same. In the present case, it is clear from the record that there was no malafide intention in introducing alternative qualification and that the alternative qualification that was introduced was also not irrelevant. On the contrary, the Committee which consisted of experts found that qualification to be more appropriate than the qualification of Doctorate in Education.

4. Taking an over all view of the matter and especially considering that respondent no.5 has officiated in the post of Research Officer and is now admittedly promoted to a higher post, in our opinion, it would not be in the interest of justice to interfere. In the result, the present petition fails. Rule is discharged.

Ordered accordingly.