1.

I say that in the circumstances stated above, we are entitled to invoke the doctrine of
equity so as to protect our services. This is more so, when admittedly in terms of the
Recruitment Rules, educationally we are fully qualified together with the experience.
Copy of Recruitment Rules is here annexed and marked as Ref-1a and 1b. That apart we
have been successful in the entire selection process having fulfilled the shortlisting
criteria and having stood in the merit list. Copy of Advertisement No. 87/2015 is here
annexed and marked as Ref-2. Copy of recommendation list by Respondent No.2 for post
of Dental Surgeon dated 18.11.2016 is here annexed and marked as Ref-3. Copy of
complete merit list for post of Dental Surgeon published by Respondent No.2 dated
18.11.2016 is here annexed and marked as Ref-4. Copy of shortlisting criteria adopted by
Respondent No.2 is here annexed and marked as Ref -5.

2. That apart after we came to be appointed to the said post on merits, that we have left our
earlier private practice and service.

3. I say that it is a judicially acknowledged fact that the recruitment to the said post is not
undertaken periodically by the Respondent Nos.1 and 2 as a result of which, those who
are desirous to enter the Government service in the said post, become age barred. That
admittedly earlier recruitment to the said post was held in the year 2008, when the present
one is held 7 years there from. Thus, by the time the next recruitment to the said post is
undertaken by the Respondent No.1, that the possibility of we becoming age barred
cannot be ruled out. That in such circumstances, it would be also difficult for us to restart
our private practice or to join the private services with the private practitioners. Copy of
Advertisement No. 71/2008 dated 31.07.2008 by Respondent No.2 for 28 posts of Dental
Surgeon is here annexed and marked as Ref-6.

4. I say that in any case and during the pendency of the O.A., it has transpired from the
record maintained by the Respondent No.1 that out of total 188 recommended candidates,
that only 121 candidates had accepted their order of appointment and joined at respective
allotted hospitals. Thus, as the things stands today, that there are still 67 vacancies in
which most of the Petitioners in this group of matters can be absorbed provided that they
fulfil the eligibility/ requirement of absorption/ regularization as per the Recruitment
Rules and as per the existing law in the field and not otherwise.

5. I say that from the bare perusal of the W.P, it is clear that the pleading raised therein is
extremely vague and therefore, based thereon no effective relief can be claimed by the
Petitioner and as such no relief can be granted to the Petitioner by the Hon’ble Tribunal.
 I say that thus it is clear from page Nos. 63 to 80 of the O.A., that there are no specific
averments qua the party Respondents thereby challenging their eligibility in terms of their
private experience as Clinical Assistant

6. I say that according to us, it was open for the Petitioner in this W.P. and other similarly
placed applicants that without participating in the selection process, to challenge the
nature or mode or clause in the advertisement about authority and power of the
Respondent No.2 to apply the short-listing criteria or the actual decision to do so by
approaching this Hon’ble court. That, however, this has not been done by the Petitioner
either consciously or otherwise. That in such circumstances, subsequently it was not
open for the Petitioner to challenge the shortlisting criteria and based thereon the
consequent our recommendations made to the Respondent No.1 by the Respondent No.2
to the said post.

7. I say that in the circumstances stated above and after the Petitioner in this O.A. became
unsuccessful, that he is estopped in law and by his conduct to challenge the selection
process and that too after being found ineligible to compete for the said post based on the
shortlisting criteria. That the law on this point is well settled in the series of the decisions
rendered by the Hon’ble Tribunal, so also by the Hon’ble Bombay High Court and the
Hon’ble Supreme Court on which we intend to rely upon as and when produced.

8. I say that it is well settled that those candidates who have taken part in the selection
process from the stage of advertisement knowing fully well that as per the procedure laid
down therein, that they cannot be held to be entitled to question the same and that too
after they became unsuccessful in fulfilling the shortlisting criteria, that they are estopped
in law and be their conduct to do so.

9. I say that it appears that initially the Respondent No.1 took a stand to the effect that the
private experience as Clinical Assistant makes eligible such candidates to apply for the
said post in the Government service. That accordingly based on such written
commitment dated 01.10.2015 being given by the Respondent No.1 to the Respondent
No.2, that the Respondent No.2 processed further selection process and thus
recommended us to the Respondent No.1 for being appointed to the said post after
accepting as valid our private experience as Clinical Assistant. Copy of the letter by
Respondent No.2 to Respondent No.1 and other similarly attached letters dated
03.09.2015 is here annexed and marked as Ref 7. Copy of in-reply letter by Respondent
No.1 to Respondent No.2 dated 01.10.2015 is here annexed and marked as Ref 8.

10. I say that in the circumstances stated above, not only it is highly illegal but highly
improper and objectionable such subsequent approach of the Respondent No.1 to the said
 matter by informing the Respondent No.2 through letter dated 17.11.2016 that the private
experience as Clinical Assistant should not be accepted, thereby attempting to make all
such candidates as ineligible and bringing into doldrum the recommendation already
made in our favour by the Respondent No.2 to the Respondent No.1. Copy of letter by
Respondent No.1 to Respondent No.2 dated 17.11.2016 is here annexed and marked as
Ref-9.

11. I say that in the circumstances stated above, the Respondent No.1 is estopped in law and
by his conduct in changing their stand and that too after completion of entire procedure.

12.

a. As per to Advertisement No. 87/2015 (Ref-1), statement about experience

requirement is as under: - “have experience of not less than one year as a Clinical
Assistant or in any post which in the opinion of government is equivalent to or
higher than the post of Clinical Assistant gained after acquiring the qualification
mentioned in sub clause (i).”
b. It is very clear from the above point of advertisement itself that one-year
experience as a clinical assistant OR in any post which in the opinion of
government is equivalent to or higher than the post of Clinical Assistant was
required. So Respondent No.2 took opinion of the government; which in this case
is Public Health Department, i.e. Respondent No.1; regarding which experience is
to be considered. As the number of applications received for said advertisement
was in large number and some of applicants also have mentioned their private
practice experience in their application, then the Respondent No.2 sought
direction from Respondent No.1 whether to consider private practice experience
of applied candidates or not through letter dated 03.09.2015 (Ref-7). Along with
communication by Respondent No.2, Respondent No.2 also provided various
communications made with different authorities (Ref-7 ) during previous Dental
Surgeon Advertisement No.71/2008 as a reference to Respondent No.1.

c. In reply to that, the Respondent No.1 gone through the references provided by
Respondent No.2 and studied it. Respondent No.1 was well aware of the Clause
No.4 in Dean, Government Dental College and Hospital Mumbai letter dated
02.12.2002 (Ref 7 pg 7) that it would not be proper to consider experience from
private clinics. But based on the Clause No.1 of the same letter from Dean,
Government Dental College and Hospital Mumbai dated 02.12.2002 and other
references, Respondent No.1 reached to the conclusion that it would not be
possible for each and every candidate to have government service experience and
it would be injustice to them. It would like creating discrimination between
 candidates having government work experience and those having private practice
experience; thereby; Respondent No.1 permitted the Respondent No.2 to consider
private clinical experience of the candidates through letter dated 01.10.2015 (Ref
8).

d. This stand of Respondent No.1 gets it resonance from Article 16 of Constitution

of India which provide equality of opportunity in public employment. Though,
Dean, Government Dental College & Hospital Mumbai asked not to consider
private practice experience equivalent to Clinical Assistant in their respective
letters, but authority didn’t provide any rules/judgments/resolutions/regulations in
support of their claim for non-consideration private practice experience. It’s
clearly the Dean, Government Dental College & Hospital Mumbai beliefs of his
own that private practice experience should not be considered equivalent to post
of Clinical Assistant. This naturally violates Constitutional rights of equality.

e. Further, Clause No. 4.6 (ii) from Advertisement No.87/2015 about experience
states “in opinion of government”; as the appointments here in Advertisement
No.87/2015 are concerned with Public Health Department Government of
Maharashtra; Government here advertisement referring to is Public Health
Department and not the Dean Government Dental College and Hospital Mumbai
and Directorate of Medical Education and Research Mumbai. So, the opinions of
both the authorities here is not absolute and correct as both the authorities are not
even remotely concerned with Advertisement No.87/2015.

13.
a. Moreover, I further submit that it’s not the first time when private practice
experience was considered for selection of post of Dental Surgeon in Public
Health Department. Private practice experience of applied candidate was
considered for same post of Dental Surgeon in same Public Health Department
previously through MPSC Advertisement No. 71/2008 dated 31.07.2008 for 28
posts of Dental Surgeon (Ref - 6).

b. After shortlisting of candidates for the post of said advertisement; candidates who
mentioned private practice experience in their application but did not attached the
proof were asked to bring the Income Tax Return Certificates of their private
clinical practice which is here annexed and marked as Ref 10. Also some
candidates who produced their Income Tax Return Certificates of private clinical
practice were selected and recommended; viz. Sr.No. 4 – Richa Vaidya, Sr.No.6 –
Abdul Daimi and Sr.No. 12 – Avinash Gavhale which is here annexed and
marked as Ref 11. Government allowed candidates with private experience from
 previous MPSC of Dental Surgeons to work as permanent candidates and it did
not want candidates with private experience for this MPSC of Dental Surgeons.
So it would be absolute injustice on the candidates who mentioned private clinic
experience in the current advertisement if private clinic experience is not
considered as experience.

14. Further, in a Special Advertisement No. 54/2016; Vacancy No.16075402723 by Union

Public Service Commission for 13 posts of Assistant Divisional Dental Surgeon on
Indian Railways, Ministry of Railways, Department of Medical, clearly mentioned “3
years of experience of dental work in a hospital or in a private practice” as essential
experience criteria which is here annexed and marked as Ref-12. Result of UPSC Special
Advertisement No. 54/2016 is here annexed and marked as ref-13. There cannot be
different yard stick for consideration of experience for the post of dental surgeon in
Central government and state government

15. Furthermore, I refer to the Advertisement No. 45/2017 for the posts of Medical Officer
(Ear, Nose, Throat) Maharashtra Medical and Health Services, Group A which is here
annexed and marked as Ref-14. As per Clause No.4.5(2) of the advertisement, even
experience in private hospital is accepted. This also establishes that experience certificate
of private practice is accepted by the Government.

16. Therefore, in the present case there is nothing wrong or against the law that private
practice experience being considered by Respondent No.2.

17. At this juncture it is necessary to mention few facts pertaining to the post of Clinical
Assistant, from which it will be evident that a narrow interpretation of the Recruitment
Rules and to restrict the entry only to the candidates who have worked in Government
Service as Clinical Assistant will be unfair and arbitrary.

Facts about Clinical Assistantship: -

a. During 1990’s and before that when one-year compulsory internship program was not
there, students after passing their BDS have to do Clinical Assistant ship. At that
time, Clinical Assistant post was only available with government dental colleges or
government institutes.
b. Currently, there are only 3 government dental colleges and approximately 40-50
clinical assistant posts are being available all across Maharashtra.
However, all over Maharashtra, there are total 37 dental colleges (including
Government, Private and Deemed University Dental Colleges) with total intake
 capacity of 3360. It means almost 3360 dental students gets their graduation in dental
sciences completed every year. Copy of list and with respective intake capacity of
various Government, Private and Deemed University Dental Colleges all across the
Maharashtra is here annexed and marked as Ref-15.
While looking at scenario of discrepancy between the post of Clinical Assistant
available in government colleges and total students passing their final BDS every
year, it is next to impossible for every graduate in dental sciences to hold at-least one-
year experience of Clinical Assistant only from Government Dental Colleges and
Government institutions.
c. As per the advertisement given by Dean, Government Dental College and Hospital,
Mumbai to fill 25 posts of Clinical Assistant dated 28.02.2018 which is here annexed
and marked as Ref-16, Eligibility and Preference as mentioned in advertisement are
as follows: -
i. You can apply to the post of Clinical Assistant only within 1 year after
completion of internship.
ii. Those candidates will not be considered for post of Clinical Assistant whose
1-year internship completion was by any mean “Un-satisfactory”.
iii. Preferences for selection on Clinical Assistant post are in following order: -
 First preference: - for those having passed their final BDS from Parent
Government dental college.
 Second preference: - for those having passed their final BDS from
Government Dental Colleges other than Parent Government Dental
College.
 Third preference: - for those having passed their final BDS from Nair
Dental College & Hospital Mumbai and
 Fourth and last preference: - for those having passed their final BDS
from private dental colleges in Maharashtra.

While looking at terms and conditions mentioned in eligibility and preference

criteria in advertisement, it’s next to impossible for every BDS graduate to get at-least 1-
year of Clinical Assistant experience from government institutes only.

It is fact that, while looking at the total post of Clinical Assistant available with
Government Dental Colleges in Maharashtra and total number of students completing
their graduation in dental sciences every year; it’s not possible for each and every
graduate in dental sciences to have at least one year of clinical assistant experience at
government colleges.

Further, there is no difference in the nature work which the Clinical Assistants
render in government clinics and in the nature of work which a dental graduate render in
private practice.
18. I further submit that, Respondent No.1 took a “U-Turn” by saying that earlier
communication dated 01.10.2015 by Government/Respondent No.1 was inadvertently
issued to respondent No.2 and they immediately rectified it by their next communication
via letter dated 17.11.2016 Ref 9.
a. While the fact is that based on all references mentioned in communication by
Respondent No.2 to Respondent No.1 via letter dated 03.09.2015 (Ref 7),
Respondent No.1 gave direction to Respondent No.2 to consider private practice
experience of candidates equivalent to Clinical Assistant post via their
communication dated 01.10.2015 (Ref-8). At that time, Joint-secretary, Public
Health Department was well aware of various opinions of Dean, Government
Dental College. Based on direction from Respondent No.1, Respondent No.2
shortlisted the candidates for interview and published the list of shortlisted
candidates on 02.12.2015. Interviews of eligible candidates were conducted from
14.12.2015 to 30.12.2015.
b. Now, almost after a year from Respondent No.1 first communication dated
01.10.2015; Respondent No.1 again communicated to Respondent No.2 through
letter dated 17.11.2016 (Ref-9) “Not to consider private practice experiences of
candidates as it would be against provisions of recruitment rules.” Till that time,
candidates were shortlisted, interview list was published and interviews were
conducted and only merit list was not declared.

c. In the letter dated 17.11.2016, Respondent No.1 says “Not to consider private
practice experiences of candidates as it would be against provisions of recruitment
rules.” There are following provisions in recruitment rule (Exhibit C-1): -Rule
1,Rule 2 clause a,Rule 2 clause b,Rule 2 clause c,Rule 2 clause d,Rule 3 clause
a,Rule 3 clause b sub clause i,Rule 3 clause b sub clause ii,Rule 3 clause b sub
clause iii,Rule 3 clause b sub clause iv,Rule 4,Rule 5,Rule 6,Rule 7. Respondent
No.1 in its communication dated 17.11.2016 did not mention that according to
which provision from above or in which provision from above it is said that
private/individual clinic experience should not be considered. None of the
provision states that private/individual clinic experience should not be considered.
As recruitment rules have no such provision regarding not considering the
private/individual clinic experience. Hence, the Respondent No.1 communication
letter dated 17.11.2016 has no value.

d. At this juncture, it is necessary to mention few facts pertaining to the

circumstances under which second letter dated 17.11.2016 by Respondent No.1;
Under-Secretary, Public Health Department had been drafted: -
i. Even though the matter was sub judicial Respondent No.1 by pass the
court and gave direction to the Respondent No.2 directly. This stand of
 Respondent No.1 is highly suspicious and a judicial enquiry must be put
up on respondent No. 1 regarding bypassing the court when the matter was
sub judicial. If they want to change the stand they must have put it before
this Hon’ble Tribunal.
ii. Applicant in this O.A. and other similarly placed applicant’s role in letter
dated 17.11.2018: -

Dental Surgeon Action Committee which is petitioners themselves

through their political contact might have made Respondent No.1 to take such
stand. This committee through their political contacts submitted their demand
by letter dated 08.11.2016 and suddenly and surprisingly, Respondent No.1
came up with this letter within 10 days; however, Respondent No.1 was silent
for long duration of almost a year from their first communication dated
01.10.2015.

The applicant also bypassed the Hon’ble Tribunal and involved in the act
to influence outcome of this O.A. in MAT. Copy of letter dated 08.11.2016
for various demands of Dental Surgeon Action Committee is here annexed
and marked as Ref-17.

Both these circumstances show that the letter was definitely written to
influence the outcome of O.A. pending with this Hon’ble Tribunal.

e. Govt. letter dated 1/10/2015 was subsequent to enquiry by MPSC regarding

eligibility for post of dental surgeon, but second letter of Govt. dated 17/11/2016
was surprisingly come from Govt.

19. I say and submit that, according to the Article 20 of Constitution of India, letter issued
by Respondent No.1 dated 17.11.2016 is “Post-Facto”. The said letter has been issued
only after all procedure has been completed. Hence, Respondent No.1 letter dated
17.11.2016 has no value in this regard and should be kept aside.

20. I further say and submit that though, Directorate of Medical Education and Research
Mumbai asked not to consider private practice experience in his communication dated
09/10/2015 he didn’t give any reason or didn’t provide any rules/judgements/resolutions
in support of their claim not to consider private practice experience. When RTI was filed
asking for such rules/judgements/resolutions on Directorate of Medical Education and
Research Mumbai, they failed to provide information on the same. The answer given by
Directorate of Medical Education and Research Mumbai on RTI application was
shocking and surprising. Copy of RTI application and reply from Directorate of Medical
 Education and Research Mumbai dated 23.03.2018 is here collectively annexed and
marked as Ref 18 .
So, from above facts, it’s clear that the opinion which Directorate of Medical Education
and Research Mumbai gave was just beliefs of their own that private practice experience
should not be considered equivalent to post of Clinical Assistant. However, Respondent
No.1 is taking support of such letter which itself is baseless.

21. I say that in such circumstances, the Respondent No. 1 should be bold enough to take a
disciplinary action against the Director of Medical Education and Research Mumbai (Ref
19) and also on Dean Government Dental College and Hospital Mumbai (letter dated
13.10.2015 Ref-20) for their aforesaid interference in the selection process amounting to
dereliction in duty or to act in excess of authority, power and jurisdiction. This is more
so, when the minimum that was expected from the Directorate of Medical Education and
Research Mumbai and Dean Government Dental College and Hospital Mumbai was
either not to entertain any such request or correspondence (as they have done for RTI
application for the same issue) from Respondent No.2 or to inform the Respondent No.1
to make correspondence or to forward the said correspondence to the said department.
I say that instead of adopting to any of the aforesaid right course of action that the
Directorate of Medical Education and Research Mumbai and Dean, Government Dental
College and Hospital Mumbai has acted illegally and with bias and prejudice mind
against us by giving reply to the Respondent No.2, thereby suggesting not to accept
private experience of the candidates as Clinical Assistant. That in any case it is really
surprising the conduct of the Respondent No.2 which is the constitutional functionary to
miss direct itself by making correspondence with both of the unconcerned authorities.
I say that in such circumstances stated above, I have reason to believe that the
conduct of the Respondent No.2 officials, the Directorate of Medical Education and
Research Mumbai and Dean, Government Dental College and Hospital Mumbai are not
above board and as such the same requires a thorough enquiry therein at the hands of this
Hon’ble Tribunal or by the Respondent No.1.
I further say that the Respondent No. 2 must explain as to what prompted them to
make the correspondence with the Director of Medical Education and Research Mumbai
and Dean, Government Dental College and Hospital Mumbai thereby seeking some
guidance whether to accept or not the private experience of the candidates as Clinical
Assistant and also what prompted the Directorate of Medical Education and Research
Mumbai and Dean, Government Dental College and Hospital Mumbai to directly make
correspondence with the Respondent No.2. whereas in RTI reply, Directorate of Medical
Education and Research Mumbai informed that they are not concerned with it (Ref 18)
and thus to interfere illegally with the selection process and that too without any
authorization in that behalf by the Respondent No.1 and in fact by keeping in dark the
Respondent No.1.
22. I say and submit that Dr. Amruta Katare-Applicant No.2 (pg no 146-147 of ref 21), Dr.
Prakash Bhoje-Applicant No. 4(pg no 140-141 of ref 21) and Dr. Purva Mantri-Applicant
No. 6 (pg no. 137-139 of ref 21) in Original Application No. 1118/2015 have submitted
experience from private clinic while applying for Advertisement No. 87/2015 and now
claiming that as private clinic experience is considered as shortlisting criteria by
Respondent No.2, this selection needs to be quashed and set aside. Copy of Online
application of Dr. Amruta Katare, Dr. Prakash Bhoje and Dr. Purva Mantri is here
annexed and marked as Ref-21. These are few examples to quote. There are many such
candidates who mentioned the private clinic experience in the online application for the
post among the applicants. They wanted to consider this experience at time of applying
and as they are not shortlisted they are questioning the private clinic experience.

23. I would like to bring in notice of this Hon’ble Tribunal to the following facts: -

TABLE - POINTS IN FAVOUR OF CONSIDERATION OF PRIVATE PRACTICE EXPERINCE

S.N. Points in Favor Of Consideration Remark

Of Private Practice Experience

1 Respondent No.1 letter dated Letter was issued before

1.10.2015 allowing to consider commencement of selection
process

2 Right to equality in public Article 16 of Constitution of

employement India

3 In previous MPSC Advertisement If not considered in this MPSC

No.71/2008 private clinic Advertisement No. 87/2015, it
experience was considered will create discrimination

4 Special Advertisement No. 56/2016 There cannot be different yard

by UPSC for 13 post of Assistant stick for selection of dental
Divisional Dental Surgeon surgeon in Central government
considered private clinic experience and state government
 5 Equivalency between work done by Both perform similar work
Clinical Assistant and Dental
Surgeon in private practice

- POINTS NOT FAVOUR OF CONSIDERATION OF PRIVATE PRACTICE EXPERINCE

S.N. Points not in favor of considering Remark

private practice experience
1 Respondent No.1 letter dated
17.11.2016
1. Not in accordance with
recruitment rule.
2. Issued after the selection
process is over, so not
applicable as it becomes
post facto
3. Issued to influence the
outcome of this O.A.

2 If not considered based on above So private practice should be

letter Violates Article 16 of India
3 Dean, Government Dental College
and Hospital Mumbai & DMER
Mumbai Opinion
4 Objection by applicants in O.A.
considered
Both the authorities have no
right to give opinion in this
appointment.
Applicants themselves mention
the private clinic experience
while applying for post

24. I say that thus for all such mess committed by the Respondents,that we cannot be made to
suffer for no fault of ours. I say that in such circumstances, the Respondent No.2 was
right in ignoring such view of the unconcerned authority namely, the Director of Medical
Education and Research Mumbai and Dean Government Dental College and Hospital
Mumbai and thus to stick to the earlier stand of the Respondent No.1 contained in the
communication dated 01.10.2015.