1  

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

11  

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

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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

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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

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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.

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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

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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

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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  

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(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

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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.

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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

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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

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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

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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

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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

25  

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

26  

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

27  

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

28  

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

29  

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

30  

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

31  

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

32  

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:

33  

“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

34  

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.  

35  

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.