GAJANAN BABULAL BANSODE & ORS. versus STATE OF MAHARASHTRA & ORS. on 5 February 2021

1. The Government of Maharashtra issued a requisition on02.06.2016 to the Maharashtra Public Service Commission (“MPSC”)to conduct the Limited Departmental Competitive Examination(“LDCE”)for selection of candidates to the post of Police Sub Inspector.

2. The Home Department, Government of Maharashtra videGovernment Circular dated 27.06.2016 notified 828 vacancies, out ofwhich 642 were from the open category, and 186 were from variousreserved categories, for promotion to the post of Police Sub-Inspectorthrough the LDCE– 2016.

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[2021] 1 S.C.R.

A3. The selection was governed by the provisions of the PoliceSub-Inspector (Recruitment) Rules, 1995. The relevant Rules areextracted hereunder:

“Rule 3: Appointment to the post of Sub-Inspector of Police inthe Police Force in the State of Maharashtra shall be made either:

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(a) by promotion of a suitable person on the basis of senioritysubject to fitness from amongst the persons holding the posts ofHavaldar and Assistant Police Sub-Inspector in the Police Forcewho have completed not less than five years continuous regularservice or seven years broken service and who qualify in theCdepartmental examination held by the Director General of Policein accordance with the rules laid down in paragraph 5 of theGovernment Resolution No. PSB. 0390/CR-408/POL-5-A, dated5[th] July 1995, 1994

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D(b) by selection of persons working in the Police Force on thebasis of the result of the limited departmental examination held bythe Maharashtra Public Service Commission for appointment tothe post of Sub-Inspector of Police for admission to which acandidate shall- E(i) not be more than 35 years of age :

Provided that, relaxation of age of five years may be granted tocandidates of Backward Classes and- ‘Provided also that, the candidates who were eligible to appearfor the limited departmental examination after 1[st] January, 1991,Fbut who were not allowed to appear for the limited departmentalexaminations held in 1998 and 2002 on account of the age limit,shall be given three chances to appear for next consecutiveexaminations.

(ii) have completed a minimum regular service as Police ConstableGwith educational qualifications as mentioned belowMinimum Regular Service Educational Qualification

(1) 4 years..Degree in any faculty.(2) 5 years..Passed the Higher Secondary SchoolHCertificate examination GAJANAN BABULAL BANSODE & ORS. v. STATE OFMAHARASHTRA & ORS. [INDU MALHOTRA, J.]

(3) 6 years..Passed the Secondary SchoolCertificate examination A

(c) by nomination on the basis of the result of a competitiveexamination held by the Commission in accordance with the rulesmade in this behalf from time to time, and for admission to whicha candidate shall :- B

(i) not be less than nineteen years of age and not more than(twenty-eight years) of age on the date specified by theCommission Provided that the maximum age limit may be relaxed upto (thirty-one years) in respect of candidates belonging to the BackwardClasses:

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Provided that an ex-serviceman who has served continuously inthe Armed Forces for a period of not less than 5 years may beallowed to deduct from his age, the period of 2 years over andabove the length of his continuous service in the Armed Forcesupto the date of release from service.

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(ii) Possess a degree or any other qualification declared by theGovernment to be equivalent thereto;

(iii) Possess thefollowing minimum physical measurements, namely:

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Rule 4: Appointment to the post of Police Sub- Inspector byGpromotion, selection on the basis of limited departmentalexamination and nomination shall be made in the ratio of 25:25:50.

Rule 5: Notwithstanding anything contained in these rules, if inthe opinion of Government, the exigencies of service, ‘so requires,Government may with prior consultation with MPSC make H

Aappointment to the post of Police Sub-Inspector in relaxation ofthe ratio prescribed for appointment by promotion selection onthe basis of limited departmental examination or nomination.”

4. The MPSC recommended the names of 828 candidates, out ofwhich 642 were from the open category, who had secured 253 marksBand above; and 186 candidates were from the various reserved categories,who had secured 230 marks and above, on the basis of the correctedfinal result declared on 12.12.2017.

5. The Home Department, Government of Maharashtra videaGovernment Resolution No. Police -1818/ File 355/Pol 5A datedC22.04.2019 notified that the Cabinet had taken a policy decisiontoaccommodate 636 additional candidates who had secured more than230 marks in the LDCE – 2016 examination.

6. On 11.06.2019, the Directorate General of Police issued adirection for conducting the medical test and other formalities to sendDthe additional 636 candidates for training to the Maharashtra PoliceAcademy, Nasik, as a part of the process of their appointment to thepost of Police Sub-Inspector.

7. The Deputy Secretary of the MPSC addressed a letter dated11.07.2019 to the Additional Chief Secretary (Appeal and Security)EGovernment of Maharashtra wherein it was stated that as per Article320 of the Constitution, the MPSC has the power to appoint candidatesto various posts in the State. The post of Police Sub-Inspector being aClass III post, was required to be filled up in accordance with The PoliceSub-Inspector (Recruitment) Rules, 1995. The list of 636 additional wasnotified by the Government on its official website, had been done withoutFconsulting the MPSC, which was a serious irregularity, and would hamperthe functioning of the Commission.

8. In the above background, various Original Applications werefiled by candidates to challenge the Policy decision contained in the G.R.dated 22.04.2019. In the present case O.A. No. 722 / 2019 was filed byGa group of In-service candidates who were working as Police Constables,and were aggrieved by the impugned G.R., since it would adverselyaffect their promotional prospects.

The Petitioners challenged the G.R. dated 22.04.2019 inter aliaon the ground that the additional 636 candidates who were directed toHbe accommodated to the post of Police Sub-Inspector, was contrary to the Recruitment Rules, and would have the inevitable effect of distortingthe ratio for recruitment through the Limited Departmental Examination.

Rule 4 of the Police Sub-Inspector (Recruitment) Rules, 1995provides a quota of 25% for promotion through the Local DepartmentalExamination. The appointment of 636 additional candidates would havethe effect of distorting the quota of 25% prescribed by Rule 4, and curtailthe future promotion opportunities of candidates who had either failed inthe LDCE-2016, or who were not eligible on account of age, experienceand educational qualification. The denial of promotional avenues to thePetitioners in the foreseeable future would be violative of Articles 14and 16 of the Constitution of India.

The Maharashtra Administrative Tribunal vide interim Order dated18.10.2019 directed that Status Quo be maintained with respect to the636 additional candidates whose list was appended to the GovernmentResolution. This Order was passed on the basis of an earlier Orderdated 01.08.2019 passed by the Principal Bench of the Tribunal in O.A.No. 445 of 2019.

9. Respondents No. 5 and 6 herein filed Misc. Application No.545of 2019 to vacate the interim Order of status quo dated 18.10.2019,wherein it was prayed that a direction be given to the State to proceedwith the implementation of G.R. dated 22.04.2019.

10. The Maharashtra Administrative Tribunal vide Order dated30.11.2019 vacated the interim Order dated 18.10.2019 on the groundthat two of the Petitioners had appeared in the LDCE exam, but failedto qualifyin the said examination; whilst the other Petitioners had notparticipated in the exam. It was also held that the Petitioners had failedto implead the 636 additional candidates who were directed to be appointedunder the impugned G.R., and were necessary parties to be impleaded inthe O.A. Reliance was placed on the Order passed by the BombayHigh Court in W.P. No. 3555/2019 Nivrathi Venkatrao Gitte v. State ofMaharashtra,wherein the same G.R. dated 22.04.2019 had beenchallenged. The High Court had directed that the process of selectionmay proceed, but would be subject to the results of the Writ Petition.

11. Aggrieved by the Order dated 30.11.2019, the OriginalApplicants / Petitioners herein filed W.P. No. 15045 of 2019 before theBombay High Court, Aurangabad Bench.

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AThe Bombay High Court rejected the Writ Petition, and the prayerto maintain status quo with respect to the 636 additional candidateswho were directed to be appointed.The High Court declined to determinewhether the G.R. dated 22.04.2019 had been issued in extraordinarycircumstances as provided by Rule 5, since the O.A. was pendingadjudication before the Tribunal. The High Court however issued aBdirection to the State Government to send the additional 636 candidatesfor the training of 9 months; and, requested the Tribunal to dispose of thepending O.A. within the same period,so that prior to the posting /appointment orders being issued in favour of the additional candidates,the O.A. would be decided.

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12. We have heard Mr. Vinay Navare, Senior Advocate for theAppellants, Mr. Sachin Patil, Advocate-on-record for the Respondent-State of Maharashtra, Mr. Ravindra Adsure for the Caveators, and Mr.R. Basant, Senior Advocate and Mr. M. N. Rao, Senior Advocate forthe Intervenors.With the consent of parties, we are disposing of theDAppeal at the admission stage.

13. Article 320(3)(a) of the Constitution of India provides that theUnion Public Service Commission, or the State Public ServiceCommission shall be consulted on all matters relating to methods ofrecruitment to civil services, and for civil posts.

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In the present case, we find that the State of Maharashtra hasissued the impugned G.R. dated 22.04.2019, without any consultation orprior approval by the MPSC, which is evident from the letter dated11.07.2019 issued by the MPSC to the Government, expressing itsdisapproval of the decision taken by the Government unilaterally to makeFthese appointments without any consultation.

14. Rule 5 of the Police Sub-Inspector (Recruitment) Rules, 1995provides that notwithstanding anything contained in these rules, if in theopinion of the Government, the exigencies of service require, the ratioprescribed for appointment by promotion, on the basis of LimitedGDepartmental Examination or nomination, may be relaxed with the priorconsultation of the Commission.

The Government would be required to establish before the Tribunalas to whether there were any extra-ordinary circumstances which havewarranted the exercise of power under Rule 5, which may be resortedto only in rare and exceptional circumstances.H

15. The impugned G.R. seeks to fill up double the number ofvacancies which were notified for the LCDE – 2016 by the Circulardated 27.06.2016. It is well-settled in service jurisprudence that theauthority cannot fill up more than the notified number of vacanciesadvertised, as the recruitment of candidates in excess of the notifiedvacancies, would be violative of Articles 14 and 16 (1) of the Constitutionof India.

16. The Tribunal has vacated the Order of status quo dated18.10.2019, on the ground that two of the Applicants had participated inthe examination, but failed to qualify.

This could not be a justifiable ground to vacate the interim Order,since the promotional prospects of the Petitioners would be seriouslyprejudiced, since a block of 636 additional candidates would be appointedas Police Sub-Inspectors over and above the Applicants.

17. The other ground on which the Tribunal has vacated the InterimOrder is stated in para 17 of the Order that the Applicants had notchallenged the G.R. dated 22.4.2019.

This is an erroneous observation which would be evident fromthe prayers in the O.A. which are set out hereunder for ready reference:- “(A) Original Application may kindly be allowed by directing theRespondents to undertake recruitment strictly as per PSIRecruitment Rules, 1995, without any deviation therefrom (B) The recruitment by promotion of as many as 636 candidatessought to be made vide Govt. Resolution dated 22.4.2019, maykindly be quashed and set aside, the same being contrary toRecruitment Rules as well as binding precedent of the Hon’bleApex Court.

€ Pending hearing and final disposal of this Application, theRespondents No.1 to 3 may kindly be directed not to take anyfurther action in furtherance of the impugned Govt. Resolutiondated 22.4.2019.

(D) Pending hearing and final disposal of this Application, theRespondents No.1 to may kindly be directed to maintain statusquo in respect of 636 candidates sought to be appointed bypromotion, under the Impugned Govt. Resolution dated 22.4.2019.

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A€ Any other suitable and equitable relief to which applicants areentitled to and this Hon’ble Tribunal deems appropriate, may kindlybe granted in their favour.”

(emphasis supplied)

In view thereof, the said observation cannot be a ground forBvacating the interim order of stay granted vide Order dated 18.10.2019.

18. The third ground on which the Tribunal has vacated the InterimOrder was that in similar O.As challenging the same G.R. dated22.4.2019, including O.A. No. 455 of 2019 filed before the PrincipalBench, the Applicants in those cases had withdrawn their respectiveCcases, since they were desirous of pursuing their representations withthe State Government.

This could also not be a justifiable ground for vacating the Orderof status quo merely because other parties had chosen to withdrawtheir O.A. for their own reasons.D

19. We find that the High Court in the present Writ Petition hasissued a direction to the State to send the additional list of 636 candidatesfor training of 9 months during the pendency of proceedings before theTribunal.

We are of the view that such a direction ought not to have beenEpassed in the Writ Petition filed by the present Petitioners, who areaggrieved by the impugned Government Resolution No. Police -1818/File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge.

20. In view of the discussion hereinabove, we allow the presentCivil Appeal, and direct that Government Resolution No. Police -1818/FFile 355/Pol 5A dated 22.4.2019 will remain stayed during the pendencyof proceedings before the Maharashtra Administrative Tribunal.

We set aside the Order dated 30.11.2019passed by theMaharashtra Administrative Tribunal which vacated the interim Order18.10.2019, and the Order dated 06.03.2020 passed by the Bombay HighGCourt in W.P. No. 15045 / 2019.

21. We direct the Maharashtra Administrative Tribunal, NagpurBench to decide the pending O.A. within a period of six months fromthe date of receipt of this Order. The Tribunal will ensure that theadditional 636 candidates are given notice of the pending O.A. throughH

the State, to enable them to appear and participate in the proceedings.The Tribunal is further directed to club all pending Original Applicationschallenging the impugned Government Resolution No. Police -1818/ File355/Pol 5A, and pass a common Judgment in these cases.

There will be no order as to costs.

Pending applications, if any, are accordingly disposed of.

Devika Gujral

Appeal allowed.

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