Vishal Ashok Thorat Vs Rajesh Shrirambapu Fate

19 July 2019
Supreme Court
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VISHAL ASHOK THORAT Vs RAJESH SHRIRAMBAPU FATE

Bench: HON'BLE MR. JUSTICE ASHOK BHUSHAN, HON'BLE MR. JUSTICE NAVIN SINHA
Judgment by: HON'BLE MR. JUSTICE ASHOK BHUSHAN
Case number: C.A. No.-005444-005444 / 2019
Diary number: 41887 / 2018
Advocates: RAVINDRA KESHAVRAO ADSURE Vs

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5444 OF 2019

(ARISING OUT OF SLP(CIVIL) NO.31957 OF 2018)

Vishal Ashok Thorat and ors. ...APPELLANT(S)

VERSUS

Rajesh Shrirambapu Fate & ors. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 5446 OF 2019

(ARISING OUT OF SLP(CIVIL) NO.2658 OF 2019)

State of Maharashtra ...APPELLANT(S)

VERSUS

Rajesh Shrirambapu Fate and ors. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 5445 OF 2019

(ARISING OUT OF SLP(CIVIL) NO.31580 OF 2018)

Abhijit Appasahab Vasagade & ors. ...APPELLANT(S)

VERSUS

Rajesh Shrirambapu Fate and others. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

1. All these appeals have been filed against the common

judgment dated 28.09.2018 of the Bombay High Court, Bench

at Nagpur in W.P.No. 1270 of 2018 filed by Rajesh

Shrirambapu Fate, respondent no.1 in these appeals by which

judgment the High Court has partly allowed the writ

petition of respondent no.1.

2. We may first notice the facts and events leading to

filing of these appeals.

3. In transport Department of the State of Maharashtra

there were posts of Assistant Inspector of Motor Vehicles,

Group-C. Under proviso to Article 309, Governor of

Maharashtra by notification dated 23.12.2016 framed the

Rules namely “Assistant Inspector of Motor Vehicles,

Group-C in Motor Vehicles Department (Recruitment) Rules

2016” (hereinafter referred to as “Rules, 2016”).

4. The State government sent a requisition on 29.12.2016

to Maharashtra Public Service Commission (hereinafter

referred to as MPSC) for conducting examinations. MPSC

issued advertisement no. 2 of 2017 dated 30.01.2017

inviting online applications for 188 posts of Assistant

Motor Vehicles Inspector Group-C for which Preliminary

Examination was to take place on 30.04.2017 and Main

Examination of eligible candidate was likely to be held on

06.08.2017. The State government had sent further

requisition for additional 670 posts. MPSC issued a

declaration notifying 858 posts which subsequently reduced

to 833 posts. Relevant examination was conducted on

30.04.2017 in which more than 69,000 candidates

participated.

5. On 30.06.2017, result of preliminary exam was declared

in which 9,870 candidates were declared qualified for the

Mains examination. On 01.07.2017, MPSC issued

advertisement no.48 of 2017 for Main examination which was

conducted on 06.08.2017. Writ Petition No.7329 of 2017 was

filed by respondent No.1 challenging only the Rules, 2016

which petition was disposed of by the High Court on

13.11.2017 granting leave to writ petitioner to make

appropriate representation to the State Government. The

State Government was directed to take suitable decision in

the next two months. The State Government vide order dated

01.02.2018 rejected the representation of respondent No.1.

The MPSC declared the final result of examination

publishing a select list of 832 candidates on 31.03.2018.

On 07.05.2018, MPSC recommended 832 candidates to the State

Government for appointment State Government on 15.05.2018

directed Transport Commissioner to take further steps for

832 selected candidates. On 05.06.2018, Transport

Commissioner asked selected candidates to come for

verification of documents.

6. The respondent No.1 filed a second Writ Petition No.

1270 of 2018 challenging only Rules, 2016 in which writ

petition, petitioner filed an amendment application

praying for quashing of the advertisements dated 30.01.2017

and 01.07.2017 as well as list of selected candidates which

amendment application was allowed by the High Court on

13.04.2018. The High Court on 12.06.2018 had passed an

interim order for maintaining status quo.

7. Apart from writ petition filed by the respondent no.1

challenging the Rules and subsequently the advertisement,

there had been several challenges before the Maharashtra

Administrative Tribunal as well as the High Court

pertaining to 2016 Rules and the Advertisement no. 2 of

2017 and 48 of 2017.

8. Before the Maharashtra Administrative Tribunal Rules,

2016 were challenged by Manoj Chavahan by filing O.A.

No.615 of 2017, which was dismissed on 06.12.2017 repelling

the challenge to the Rules. Several other O.As. filed

before Maharashtra State Administrative Tribunal were also

dismissed on 06.12.2017. One O.A. No. 481 of 2018 filed by

Ajitpalsingh Nirmalsingh Khalsa was also dismissed on

06.12.2017 against which Writ Petition No.8179 of 2017

filed by Ajitpalsingh Nirmalsingh Khalsa which was also

dismissed by the High Court on 18.01.2018 and SLP No. 3452

of 2018 challenging the judgment dated 18.01.2018 of the

High Court was dismissed by this Court on 09.02.2018. Writ

Petition No.7685 of 2017, Dinesh Kisanrao Sawarkar versus

State of Maharashtra was also dismissed by the High Court

on 17.01.2018 against which SLP No.13258 of 2018 was

dismissed on 04.05.2018. In Writ Petition filed by the

respondent No.1, i.e., 1270 of 2018 both State Government

as well as MPSC filed counter affidavits. Respondent Nos.4

to 22 in Civil Appeal of Vishal Ashok Thorat had filed

application for impleadment in Writ Petition No.1270 of

2018 along with the counter affidavit, which applications

were allowed by the High Court. The High Court vide its

judgment dated 28.09.2018 partly allowed the writ petition.

The High Court although held that writ petitioner, i.e.,

respondent No.1 cannot be permitted to challenge the

advertisements dated 30.01.2017 and 01.07.2017 but the High

Court set aside the Proviso at the end of Rule 3(iii) and

Rule 3(iv) and also Rule 4 of Rules, 2016. The High Court

ultimately directed the respondent to choose and select

only those persons, who had participated in the selection

process and who fulfilled the requirement of practical

experiences and driving licences as per the qualifications

prescribed by the Central Government, i.e., as per

substantive part of Rule 3(iii) and Rule 3(iv) of Rules,

2016.

9. Civil Appeal No.5444 of 2019 has been filed by Vishal

Ashok Thorat and 545 other candidates, whose names are

included in the select list of 832 candidates. These

selected candidates were not made parties to the Writ

Petition No.1270 of 2018 before the High Court.

10. Civil Appeal No.5446 of 2019 has been filed by the

State of Maharashtra aggrieved against the judgment of the

High Court dated 28.09.2018. In the appeal, several grounds

have been taken by the State of Maharashtra challenging

the judgment dated 28.09.2018.

11. Civil Appeal No.5445 of 2019, Abhijit Appasaheb

Vasagade and 11 other candidates are appellants, who were

included in the select list of 832 candidates and who got

themselves impleaded in W.P. No.1270 of 2018 before the

High Court. These appellants also aggrieved by the judgment

of the High Court dated 28.09.2018 have filed the appeal

challenging judgment on various grounds.

12. In these appeals, we have heard Dr. Abhishek Manu

Singvi, Shri Jayant Bhushan and Mr. Paramjit Singh

Patwalia, Senior Advocates for the appellant. Shri Shekhar

Naphade, Senior Advocate has appeared for respondent No.1.

Shri P.S. Narasimha, learned senior Advocate has been heard

for the applicants, who had prayed for intervention. We

have also heard other learned counsel in support of the

appeals.

13. Learned Counsel for the appellant in Civil Appeal of

Vishal Ashok Thorat has led the arguments. He submitted

that the writ petition filed by the respondent No.1 ought

to have been dismissed on laches and on conduct. It is

submitted that the respondent No.1 has no locus to

challenge the recruitment of Assistant Motor Vehicles

Inspector. The respondent No.1 in his earlier writ petition

being W.P.No.729 of 2017 having not challenged the

advertisement Nos.2 of 2017 and 48 of 2017, he cannot be

allowed to challenge the same in W.P. No.1270 of 2018 by

allowing the amendment application.

14. It is submitted that the respondent No.1 in pursuance

of advertisements cannot be said to be aggrieved by the

recruitment. It is submitted that the amendment in W.P.

No.1270 of 2018 was filed by the respondent No.1 only when

the result was declared on 31.03.2018. It is submitted that

one nephew of respondent No.1 had also applied in pursuance

of advertisement and could not be selected in the result

dated 31.03.2018, hence the respondent No.1 thereafter

sought to challenge the advertisement, which challenge

ought to have been rejected by the High Court. It is

submitted that High Court having returned the finding in

paragraph 48 of the impugned judgment that writ petition

cannot be permitted to challenge the advertisements dated

30.01.2017 and 01.07.2017, it ought not to have issued

direction in paragraph 51 which is nothing but indirectly

entertaining the challenge to the advertisement which could

not have been directly entertained.

15. It is submitted that Rule 3 of Rules, 2016 fully

complies with the notification of the Central government

dated 12.06.1989 issued under Section 213(4) of Motor

Vehicles Act, 1988. The substantive part of Rule 3 is fully

in consonance with qualifications prescribed by

notification dated 12.06.1989. The State government by

Proviso in Rule (iii) and Rule 3(iv) has given only

breathing time to those candidates who does not fulfill

qualification to obtain it during the probation period,

which cannot be said to be contrary to notification dated

12.06.1989.

16. It is further submitted that by subsequent

notification dated 08.03.2019 of the Central Government,

the notification dated 12.06.1989 has been substituted.

Now the requirement of notification dated 12.06.1989 is no

longer in continuance. The State is free to make

appointment of the selected candidates.

17. It is further submitted that six writ petitions were

already dismissed by the High Court, where the whole

recruitment process was under challenge. Three Special

Leave Petitions were filed against the judgment of the High

Court which too were dismissed by this Court. It is

submitted that respondent No.1, who was writ petitioner in

Writ Petition No.1270 of 2018, had not impleaded any

selected candidates, hence, no direction could be issued

by the High Court with regard to select list dated

31.03.2018. It is further submitted that Section 213 of

the Motor Vehicles Act prohibits appointment of candidates,

who do not fulfill the qualifications as notified by the

Central Government. None of the selected candidates having

been appointed and the notification dated 12.06.1989 being

not in operation, there is no impediment in appointment of

the selected candidates who fulfill the qualifications,

which are prescribed as on date. It is submitted that

proviso to Rule 3(iii) and Rule 3(iv) is not contradictory

to notification dated 12.06.1989 but is in harmony. The

High Court ought to have dismissed the writ petition

denying relief to the respondent No.1 who was writ

petitioner in the facts of the present case. In the facts

and circumstances of the present case the respondent No.1

has no locus to challenge the recruitment and selection.

18. In support of the appeal filed by the State of

Maharashtra, learned senior counsel submits that

respondent No.1 had no locus to file a writ petition, he

having not participated. It is submitted that provisos to

Rule 3(iii) and Rule 3(iv) of Rules, 2016 do not at all

lower minimum qualification prescribed by Central

Government vide notification dated 12.06.1989, but it

merely gives breathing period of two years (before

completion of probation period) to selected candidates to

gain experience of one year and driving licence. It is

submitted that direction in paragraph 51 of the judgment

cannot be complied as on date, in view of fact that

notification of the Central Government dated 12.06.1989,

is no longer in operation. Rules,2016 do not change the

minimum qualification which is same as provided in

substantive provision of Rule 3 and proviso carves out only

an exception giving some time to acquire the qualification

during the probation period by which provision the zone of

consideration has been enlarged enabling the more

meritorious candidates to apply for the post. The High

Court committed error in treating the writ petition filed

by the respondent as Public Interest Litigation whereas in

the service matters no Public Interest Litigation can be

entertained.

19. It is further submitted that if only the qualification

mentioned in the notification dated 12.06.1989 is adhered

to, there are only 25 candidates in the entire list of

selected candidates who shall be available for appointment

leaving almost all the posts of Assistant Inspector of

Motor Vehicles vacant which is not in the interest of the

State. The Court should take into consideration the

subsequent events. The notification dated 08.03.2019

issued by the Central Government is important subsequent

event, which has knocked out the very basis of the judgment

of the High Court.

20. It is further contended that it is the State, which

has legislative competence with regard to the State Public

Services Commission under Entry 41 List II of the Seventh

Schedule of the Constitution of India. Thus, the State was

fully empowered to make Rules providing for recruitment to

the post of Assistant Inspector of Motor Vehicles.

21. Learned senior counsel appearing for the appellants in

the appeal filed by Abhijit Appasaheb Vasagade and others

has adopted the submissions made in appeal filed by Vishal

Ashok Thorat and others. It is further submitted that

respondent No.1 in his earlier Writ Petition No.7239 of

2017 having not challenged the advertisement Nos. 2 of 2017

and 48 of 2017 had given up the right to challenge these

advertisements, hence, he has no right to challenge these

advertisements in his second Writ Petition No.1270 of 2018.

The appellants who are included in the list of 832 selected

candidates grinded for two years and 9 months and at the

instance of respondent No.1 selection could not have been

interfered with by the High Court. Respondent No.1 is

legally estopped from challenging the selection process.

22. In Seventh Schedule, List III (concurrent list) Entry

35 provides for “Mechanically propelled vehicles including

the principles on which taxes on such vehicles are to be

levied” which Entry does not empower the Central Government

to prescribe minimum qualification for Assistant Inspector

of Motor Vehicles. The notification dated 12.06.1989 cannot

be benchmarked to test constitutional validity of provisos

to Rule 3(iii), Rule 3(iv) and Rule 4 of Rules, 2016.

23. Shri Shekhar Naphade, learned senior counsel appearing

for respondent No.1 refuting the submissions of the counsel

for the appellants submits that respondent No.1 is

qualified for the post of Assistant Inspector of Motor

Vehicles and had jurisdiction to challenge the Rules, 2016.

There is no delay on the part of the writ petitioner i.e.

respondent No.1 in challenging Rules, 2016. Rule 3(iii)

and Rule 3(iv) of Rules, 2016 diluted the minimum

qualification as prescribed by the Central Government by

its notification dated 12.06.1989. The State cannot appoint

a person who does not fulfil the minimum qualification.

The appointment of such person even on probation is neither

in the public interest nor in the interest of public

exchequer. Disqualified person cannot be allowed by the

State to get salary even though when they are not

discharging the duty of Assistant Inspector of Motor

Vehicles. The High Court could not be a mute spectator in

a situation where the State has framed Rules for

appointment of a person who does not fulfil the

qualification. No error has been committed by the High

Court in setting aside Rule 3(iii), Rule 3(iv)and Rule 4

of the Rules, 2016. Many selected candidates were added in

the writ petition even though on their own instance and

were heard by the High Court hence it cannot be said that

selected candidates were not heard by the High Court. The

notification dated 08.03.2019 by which the Central

Government has now substituted earlier notification dated

12.06.1989 is not applicable in the present case. Since,

the entire process of recruitment has been completed during

currency of notification dated 12.06.1989. The

notification dated 01.08.2016 by the Government of India

as relied by the appellant has never been published in the

Gazette.

24. We have heard the learned counsel for the parties and

perused the records.

25. We may first notice the Rule 3 and Rule 4 of Rules,

2016 framed by the State of Maharashtra which were subject

matter of consideration by the High Court. Rules, 2016 were

framed in exercise of power conferred by the proviso to

Article 309 of the Constitution in supersession of all

existing Rules. Rule 3 and Rule 4 which are relevant in

the present case are as follows:

“3. Appointment to the post of Assistant

Inspector of Motor Vehicles Group ‘C’ in Motor

Vehicle Department, shall be made by nomination

on the basis of the result of a competitive

examination held by the Commission from amongst

the following candidates who,--

(i) … … … … (ii) … … … … (iii) possess practical experience of

repairing and maintenance of light

motor vehicles, heavy goods vehicles

and heavy passenger vehicles, for a

period of not less than one year

gained after acquiring the

qualifications mentioned in clause

(ii), in workshop run by a Central or

State Government undertaking or

Department or in a institution

recognized by Government from time to

time. The experience as trainee or

apprentice shall be counted towards

requisite experience:

Provided that, if a person not

possessing practical experience of

one year as above on the last date

of submission of application for

admission to the competitive

examination held by Commission shall

obtain such experience before

completion of the period of

probation in workshop run by a

Government undertaking or Department

or in a institution recognized by

Government, from time to time; and

(iv) Possess a valid driving license authorizing him to drive motor cycle

with gears, light motor vehicles and

transport vehicles, (heavy good

vehicles and heavy passenger

vehicles) issued by the Competent

Authority on the last date of

submission of the application for the

admission to the competitive

examination held by the Commission;

Provided that, if a person not

holding a valid license for heavy

goods vehicles or heavy passenger

vehicles, as the case may be, or both

heavy good vehicles and heavy

passenger vehicles on the last date

of submission of application for

admission to the competitive

examination held by the Commission,

shall obtain such driving license

before completion of the period of

probation, failing which, he shall

be liable to be discharged from the

service.

He shall renew the driving license

from time to time, without break;

and

(v) … … … … (vi) … … … … (vii) … … … …

4. A person appointed to the post of

Assistant Motor Vehicles Inspector shall

not perform the duty and responsibility of

the said post till he gains and acquires

the prescribed experience and driving

license within probation period as

mentioned in proviso to clause (iii) and

clause (iv) of Rule 3.”

26. Section 213 sub-section (4) of Motor Vehicles Act,

1988 provides for:

“Section 213(4) The Central Government may,

having regard to the objects of the Act, by

notification in the Official Gazette,

prescribe the minimum qualifications which

the said officers or any class thereof shall

possess for being appointed as such.”

27. Notification dated 12.06.1989 has been issued by the

Central Government in exercise of its power under Section

213(4) of Motor Vehicles Act provides as follows:

“GOVERNMENT OF INDIA

NOTIFICATION

SO 443(E), dated 12.6.1989: In exercise of the

powers conferred by Sub-Section (4) of Section

213 of the Motor Vehicles Act, 1988 (59 of 1988),

the Central Government hereby prescribed that

the minimum qualification for the class of

officers consisting of the category of Inspector

of Motor Vehicles or Assistant Inspector of

Motor Vehicles by whatever names called shall be

as under:-

(1) Minimum general educational qualification of a pass in X standard; and

(2) A diploma in Automobile Engineering (3-year course of a diploma in Mechanical

Engineering awarded by the State Board of

Technical Education (3 years course); and

(3) Working experience of at least one year in a reputed automobile workshop which

undertakes repairs of both light motor

vehicles, heavy goods vehicles and heavy

passenger motor vehicles fitted with petrol

and diesel engine; and

(4) Must hold a driving licence authorising him to drive motor cycle, heavy goods vehicles

and heavy passenger motor vehicles.

2. … … … …

3. … … … …”

28. Reverting to the facts of the present case the MPSC

issued the Advertisement dated 30.01.2017 (Advertisement

No. 2 of 2017) for filling up the posts of Assistant

Inspector of Motor Vehicles. In pursuance of which

preliminary examination was held on 30.04.2017, the result

of which was declared on 30.06.2017 and main examination

was also held on 06.08.2017. Much after holding of the

above examinations, respondent No.1 filed Writ Petition

No.7239 of 2017 wherein there was no challenge to the

advertisement Nos.2 of 2017 and 48 of 2017 (for main

examination). Only challenge raised by respondent No.1 was

to the Rules, 2016. The writ petition was disposed of on

13.11.2017 giving liberty to make representation in the

matter to the State. The State rejected the representation

of respondent No.1 referring to order of Maharashtra

Administrative Tribunal where similar challenge to the

Rules was rejected. Writ Petition No.1270 of 2018 was filed

by respondent No.1 on 27.02.2018 wherein he again only

challenged the Recruitment Rules, 2016. The result of main

examination held on 06.08.2017 for 633 posts of Assistant

Inspector of Motor Vehicles was declared on 31.03.2018. It

was thereafter when respondent No.1 filed application for

amendment on 13.04.2018 which was allowed by the High

Court. It is useful to refer to the amended prayers which

were added in Writ Petition No.1270 of 2018, which are to

the following effect:

“iii-a) By way of appropriate writ, order or

direction, hold and declare that he preliminary

advertisement dated 30.01.2017 and main

advertisement dated 01.07.2017 issued by

Respondent No.2 in pursuance to the Notification

issued by Respondent on 23.12.2016, as ultra-

virus, arbitrary, unreasonable and illegal and

also direct that the entire recruitment process

undertaken pursuant to said Recruitment Rules,

dated 23.12.2016 be quashed and set aside.

iii-b) By way of appropriate writ, order or

direction, hold and declare that, the select

list published on dated 31.03.2017 vide

Annexure-XII in pursuance to the preliminary

advertisement dated 30.01.2017 and main

advertisement dated 01.07.2017 issued by

M.P.S.C. in pursuance to the Notification issued

by Respondent on 23.12.2016, as ultra-virus,

arbitrary, unreasonable and illegal.

iii-c)By further order, direction, writ direct

Respondent to issue fresh advertisement in

accordance with rules prescribed by the Central

Government in that behalf by Notification dated

12.06.1989 and to carry out fresh process of

selection in pursuance to that fresh

advertisement be issued in accordance with the

rules prescribed by the Central Government in

that behalf by Notification dated 12.06.1989.”

29. The High Court, thus, permitted the respondent No.1 to

challenge the advertisement Nos.2 of 2017 and 48 of 2017

and the entire recruitment process undertaken thereunder.

Respondent No.1 was also permitted to challenge the select

list dated 31.03.2018. Respondent No.1 in his writ petition

sought to challenge advertisements only on 13.04.2018

whereas advertisement for preliminary examination was

first issued on 30.01.2017. Admittedly, respondent No.1

never applied against the advertisement to participate in

the recruitment for the post of Assistant Inspector of

Motor Vehicles.

30. The High Court although has permitted respondent No.1

to amend the prayer in the writ petition by including

challenge to the advertisements as well as challenge to

the select list but in the impugned judgment the High Court

has categorically held that respondent No.1 cannot be

allowed to challenge the advertisements dated 30.01.2017

and 01.07.2017. The High Court in paragraph 48 of its

judgment has clearly held that writ petitioner cannot be

permitted to challenge the advertisements dated 30.01.2017

and 01.07.2017. In paragraph 48 of the judgment following

was held:

“48. When petitioner has not challenged the

advertisement in Writ Petition No.7239 of

2017, this Writ Petition cannot be viewed

independent of order dated 13.11.2017 in

earlier Writ Petition. Preliminary

advertisement and main advertisement were

all issued before Writ Petition No.7239/2017

was filed in High Court on 31.10.2017. We,

therefore, do not find it necessary to delve

into various judgments mentioned supra. It

follows that the petitioner cannot be

permitted to challenge the advertisements

dated 30.01.2017 and 01.07.2017. However,

that does not preclude him from challenging

the dilution in qualifications effected by

the State Government for recruitment as per

2016 Rules for the post of Assistant

Inspector of Motor Vehicles. He is a citizen

and also qualified, as per norms prescribed

by the Central Government to compete for it.”

31. When the High Court held that respondent No.1 could

not be permitted to challenge the advertisements dated

30.01.2017 and 01.07.2017, we failed to appreciate that

how the High Court could have interfered with the select

list of 832 candidates, which was prepared after

preliminary examination and main examination in pursuance

to the advertisements dated 30.01.2017 and 01.07.2017.

When respondent No.1 was not allowed to challenge the

advertisements, tinkering with the select list by the High

Court was impermissible and self-contradictory. The High

Court in paragraph 51 of the judgment has issued following

direction:

“51. Consequently, we direct respondents to

choose and select from the aspirants who have

participated in selection process, only such

candidates who fulfill the requirements of

practical experience and driving licence, as

per the qualification prescribed by the

Central Government i.e. as per substantive

part of Rule 3(iii) and Rule 3(iv) of 2016

Rules.”

32. The direction in paragraph 51 of the impugned judgment

clearly directed the select list to be re-drawn by

including only those candidates who fulfill the

requirements of practical experience and driving licence

as prescribed by the Central Government i.e. as substantive

part of Rule 3(iii) and Rule 3(iv) of Rules, 2016, which

the High Court could not do in view of its finding in

paragraph 48 of the judgment. When a person is not

permitted to challenge the advertisements and process of

recruitment, the select list which is outcome of such

recruitment process cannot be interfered at the instance

of such person. The High Court, thus, clearly erred in

issuing direction in paragraph 51 to modify the select list

dated 31.03.2018.

33. One more submission raised by the learned counsel for

the appellant in civil appeal filed by Vishal Ashok Thorat

needs to be noticed. The submission of the appellant is

that respondent No.1 in his Writ Petition No.1270 of 2018

did not implead any of the selected candidates out of the

list of 832. No selected candidate having been impleaded

by respondent No.1, the High Court erred in issuing

direction to modify and review the select list. The

direction of the High Court in paragraph 51 is clearly

against the interest of the appellants, who as per

direction shall go out of the select list, the select list

having been published on 31.03.2018, i.e., much before the

date when respondent No.1 filed application for amendment

in the writ petition for challenging the advertisement

Nos.2 of 2017 and 48 of 2017, he ought to have impleaded

the selected candidates whose names were already published

by the MPSC. Respondent No.1 without bringing the selected

candidates on record could not have obtained any order

adverse to the selected candidates. The appellants rightly

placed reliance on the Constitution Bench judgment of this

Court in Udit Narain Singh, Malpatharia vs. Additional

Member Board of Revenue, Bihar and another, AIR 1963 SC

786. The Constitution Bench in paragraphs 6, 7 and 9 laid

down following:

“6. The question is whether in a writ in the

nature of certiorari filed under Art. 226 of the

Constitution the party or parties in whose

favour a tribunal or authority had made an order,

which is sought to be quashed, is or are

necessary party or parties. While learned

Additional Solicitor General contends that in

such a writ the said tribunal or authority is

the only necessary party and the parties in whose

favour the said tribunal or authority made an

order or created rights are not necessary

parties but may at best be only proper parties

and that it is open to this Court, even at this

very late stage, to direct the impleading of the

said parties for a final adjudication of the

controversy, learned counsel for the respondents

contends that whether or not the authority

concerned is necessary party, the said parties

would certainly be necessary parties, for

otherwise the High Court would be deciding a case

behind the back of the parties that would be

affected by its decision.

7. To answer the question raised it would be

convenient at the outset to ascertain who are

necessary or proper parties in a proceeding. The

law on the subject is well settled: it is enough

if we state the principle. A necessary party is

one without whom no order can be made

effectively; a proper party is one in whose

absence an effective order can be made but whose

presence is necessary for a complete and final

decision on the question involved in the

proceeding.

9. The next question is whether the parties whose

rights are directly affected are the necessary

parties to a writ petition to quash the order of

a tribunal. As we have seen, a tribunal or

authority performs a judicial or quasi-judicial

act after hearing parties. Its order affects the

right or rights of one or the other of the

parties before it. In a writ of certiorari, the

defeated party seeks for the quashing of the

order issued by the tribunal in favour of the

successful party. How can the High Court vacate

the said order without the successful party

being before it? Without the presence of the

successful party the High Court cannot issue a

substantial order affecting his right. Any order

that may be issued behind the back of such a

party can be ignored by the said party, with the

result that the tribunal's order would be

quashed but the right vested in that party by

the wrong order of the tribunal would continue

to be effective. Such a party, therefore, is a

necessary party and a petition filed for the

issue of a writ of certiorari without making him

a party or without impleading him subsequently,

if allowed by the court, would certainly be

incompetent. A party whose interests are

directly affected is, therefore, a necessary

party.”

34. This Court in Public Service Commission, Uttaranchal

vs. Mamta Bisht and others, (2010) 12 SCC 204, laid down

that writ petition could not have been entertained against

the selected candidate when he has not been a party in the

writ petition. In the above case, Public Service Commission

invited applications for the posts of Civil Judge (Junior

Division. The respondent No.1 was not included in the

select list. The respondent No.1 filed a writ petition

claiming that she ought to have been selected in the

reserved category being a woman of Uttaranchal. The claim

of respondent No.1 that she was entitled to have been

offered the appointment giving her the benefit of

horizontal reservation for Uttaranchal women was accepted

by the High Court. Challenging the said judgment of the

High Court, the appeals were filed by the Public Service

Commission, Uttaranchal as well as State of Uttaranchal.

This Court set aside the judgment of the High court on the

ground that the selected candidate in reserved category

vacancy was a necessary party. In paragraph 9 of the

judgment following has been laid down:

“9. In case the respondent No. 1 wanted her

selection against the reserved category vacancy,

the last selected candidate in that category was

a necessary party and without impleading her,

the writ petition could not have been

entertained by the High Court in view of the law

laid down by nearly a Constitution Bench of this

Court in Udit Narain Singh Malpaharia v.

Additional Member, Board of Revenue, Bihar and

Anr., AIR 1963 SC 786, wherein the Court has

explained the distinction between necessary

party, proper party and proforma party and

further held that if a person who is likely to

suffer from the order of the Court and has not

been impleaded as a party has a right to ignore

the said order as it has been passed in violation

of the principles of natural justice. More so,

proviso to Order I, Rule IX of Code of Civil

Procedure, 1908 (hereinafter called “CPC”)

provide that non- joinder of necessary party be

fatal. Undoubtedly, provisions of CPC are not

applicable in writ jurisdiction by virtue of the

provision of Section 141 CPC but the principles

enshrined therein are applicable. (Vide

Gulabchand Chhotalal Parikh v. State of Gujarat,

AIR 1965 SC 1153; Babubhai Muljibhai Patel v.

Nandlal, Khodidas Barat and Ors., AIR 1974 SC

2105; and Sarguja Transport Service v. State

Transport Appellate Tribunal, Gwalior and Ors.,

AIR 1987 SC 88).”

35. Shri Shekhar Naphade refuting the above submission has

placed reliance on the judgment of this Court in A.

Janardhana vs. Union of India and others, (1983) 3 SCC 601.

This Court in the above case has rejected the submission

that those who had scored march over the appellant in the

seniority list having not been impleaded as respondents,

no relief could have been granted to the appellant. Shri

Naphade has relied on paragraph 36 of the judgment which

is to the following effect:

“36. It was contended that those members who

have scored a march over the appellant in

1974 seniority list having not been impleaded

as respondents, no relief can be given to the

appellants. In the writ petition filed in the

High Court, there were in all 418

respondents. Amongst them, first two were

Union of India and Engineer-in-Chief, Army

Headquarters, and the rest presumably must

be those shown senior to the appellant. By

an order made by the High Court, the names

of respondents 3 to 418 were deleted since

notices could not be served on them on

account of the difficulty in ascertaining

their present addresses on their transfers

subsequent to the filing of these petitions.

However, it clearly appears that some direct

recruits led by Mr. Chitkara appeared through

counsel Shri Murlidhar Rao and had made the

submissions on behalf of the direct. Further

any application was made to this Court by

nine direct recruits led by Shri T. Sudhakar

for being impleaded as parties, which

application was granted and Mr. P.R. Mridul,

learned senior counsel appeared for them.

Therefore, the case of direct recruits has

not gone unrepresented and the contention can

be negatived on the short ground. However,

there is a more cogent reason why we would

not countenance this contention. In this

case, appellant does not claim seniority over

particular individual in the background of

any particular fact controverted by that

person against whom the claim is made. The

contention is that criteria adopted by the

Union Government in drawing up the impugned

seniority list are invalid and illegal and

the relief is claimed against the Union

Government restraining it from upsetting or

quashing the already drawn up valid list and

for quashing the impugned seniority list.

Thus, the relief is claimed against the Union

Government and not against any particular

individual. In this background, we consider

it unnecessary to have all direct recruits

to be impleaded as respondents. We may in

this connection refer to General Manager,

South Central Railway, Secunderabad and Anr.

etc. v. A.V.R. Sidhanti and Ors. etc.,

(1974)4 SCC 335. Repelling a contention on

behalf of the appellant that the writ

petitioners did not implead about 120

employees who were likely to be affected by

the decision in this case, this Court

observed that the respondents (original

petitioners) are impeaching the validity of

those policy decisions on the ground of their

being violative of Articles 14 and 16 of the

Constitution. The proceedings are analogous

to those in which the constitutionality of a

statutory rule regulating the seniority of

government servants is assailed. In such

proceedings, the necessary parties to be

impleaded are those against whom the relief

is sought, and in whose absence no effective

decision can be rendered by the Court.

Approaching the matter from this angle, it

may be noticed that relief is sought only

against the Union of India and the concerned

Ministry and not against any individual nor

any seniority is claimed by anyone individual

against another particular individual and

therefore, even if technically the direct

recruits were not before the Court, the

petition is not likely to fail on that

ground. The contention of the respondents for

this additional reason must also be

negatived.”

36. The judgment of this Court in A. Janardhana relied by

Shri Naphade is not applicable in the facts of the present

case. In the above case, this Court was considering the

challenge to the seniority list. This Court has noticed in

paragraph 36 that the appellant had not claimed seniority

over any particular individual in the background of any

particular fact controverted by that person against whom

the claim is made. The contention was that criteria adopted

by the Union Government in drawing up the seniority list

are invalid and illegal and the relief is claimed against

the Union Government restraining it from upsetting or

quashing already drawn up valid list. Thus, the relief is

claimed against the Union Government and not against any

particular individual. This Court by making the above

observation has repelled the submission that relief could

not have been granted without impleading those who were

affected in the seniority list. The claim pertaining to

seniority may be laid on different grounds. There may be

cases where seniority is claimed against individual person

on specific facts, it might be necessary to implead those

persons but there may be cases where non-impleadment of

person in seniority dispute may not be fatal. The present

is a case of recruitment and selection, where after

participation in the selection process, 832 candidates were

finally selected and were included in the select list. By

inclusion in the select list, the selected candidate had

acquired right of consideration for appointment, which

could not have been taken away in the writ petition filed

by respondent No.1, where he could not have challenged the

advertisement Nos.2 of 2017 and 48 of 2017.

37. Shri Naphade further submitted that by mere inclusion

of the name in the select list, no right has accrued to

the selected candidate for appointment. It may be true that

by mere inclusion in the select list, there is no right of

appointment but by inclusion in the select list the

candidate is entitled for consideration for his

appointment, which could not have been denied without there

being any valid reason. Thus, we find force in the

submission of the appellant that in the present case, the

High Court could not have modified the select list without

the selected candidates, whose interest was jeopardized by

the High Court being impleaded in the writ petition. Thus,

directions issued by the High Court in paragraph 51 are

not sustainable also in view of the fact that respondent

No.1 had not impleaded the selected candidates in his writ

petition.

38. Although, learned counsel for the parties have made

elaborate submissions on the validity of Rule 3(iii)

proviso, Rule 3(iv) proviso and Rule 4 but in the facts of

the present case, where writ petitioner, i.e., respondent

No.1 was held by the High Court not competent to challenge

the advertisement Nos.2 of 2017 and 48 of 2017, the High

Court committed error in proceeding to examine the validity

of the Rules, 2016. The challenge to Rules, 2016 in the

background of the present case ought not to have been

allowed to be raised at the instance of the writ

petitioner. The respondent No.1, who did not participate

in the selection and the High Court had specifically

rejected the entitlement of the respondent No.1 to

challenge the advertisement Nos.2 of 2017 and 48 of 2017,

as held in paragraph 48 of the judgment, permitting him to

challenge the validity of the Rules in reference to the

same advertisements is nothing but indirectly challenging

something which could not be challenged directly by the

respondent No.1. The High Court in the facts of the present

case, where respondent No.1 was not allowed to challenge

the advertisements or the select list should not have been

allowed to challenge the Rules, 2016 in so far as the

selection in question was concerned. The writ petition

filed by respondent No.1 was not styled or framed as PIL.

It is well settled that with regard to service

jurisprudence, PIL are not entertained. In Ayaaubkhan

Noorkhan Pathan vs. State of Maharashtra and others, (2013)

4 SCC 465, this Court has reiterated that PIL should not

be entertained in service matter. In paragraph 15 following

has been laid down:

“13. Even as regards the filing of a Public

Interest Litigation, this Court has

consistently held that such a course of

action is not permissible so far as service

matters are concerned. (Vide: Dr. Duryodhan

Sahu and Ors. v. Jitendra Kumar Mishra and

Ors., AIR 1999 SC 114; Dattaraj Natthuji

Thaware v. State of Maharashtra, AIR 2005 SC

540; and Neetu v. State of Punjab and Ors.,

AIR 2007 SC 758)”

39. A perusal of the impugned judgment indicates that the

High Court was influenced by the submission of the

appellant that loss being caused to the public revenue by

appointment of Assistant Inspector of Motor Vehicles, who

did not fulfill qualification as laid down in notification

dated 12.06.1989, the High Court has virtually entertained

the writ petition as PIL. Following observations made by

the High Court in paragraph 29 clearly indicate that the

High Court proceeded to treat the writ petition as PIL,

although, it relates to condition of service of Assistant

Inspector of Motor Vehicles. In paragraph 29 following has

been observed by the High Court:

“We are here, satisfied that the loss being

caused to public revenue cannot be ignored and

challenge cannot be seen as a grievance

pertaining to a service condition. Contention

that it cannot, therefore, be seen as public

interest litigation, is misconceived. Its larger

impact on Society due to hole in taxpayer’s money

and omission to make requisite service available

to the citizens, all necessitate cognizance by

any writ petition.”

40. We, thus, are of the view that the High Court ought

not to have entertained the writ petition, in which

challenge was to the Rules, 2016, which were clearly in

reference to recruitment under advertisement Nos.2 of 2017

and 48 of 2017. When the respondent No.1, i.e., writ

petitioner was held not entitled to challenge the

advertisement Nos.2 of 2017 and 48 of 2017 at his instance,

proceeding to entertain the challenge to the validity of

the Rules and to strike down the Rules and modifying the

select list dated 31.03.2018 was clearly impermissible.

The High Court, thus, fell in error in issuing directions

in paragraph 51. We are also of the view that in the facts

of the present case, it was not necessary for the High

Court to enter into the validity of Rule 3(iii), Rule 3(iv)

and Rule 4 of the Rules, 2016. We having taken the view

that directions issued by the High Court in paragraph No.51

are not sustainable, for the purpose of this case, it is

not necessary for us to dwelve upon various submissions

raised with regard to Rules, 2016, which according to us

was not required to be gone into by the High Court in the

background of the present case.

41. For the purposes of the present case, we are of the

view that contention pertaining to validity of Rule 3(iii),

Rule 3(iv) and Rule 4 of the Rules, 2016 need not to be

gone into and the issues be left open to be decided in an

appropriate case.

42. In view of the forgoing discussions, we allow these

appeals, set aside the judgment of the Division Bench of

the High Court dated 28.09.2018 and dismiss the Writ

Petition No.1270 of 2018. Parties shall bear their own

costs.

......................J.

( ASHOK BHUSHAN )

......................J.

( NAVIN SINHA )

New Delhi,

July 19, 2019.