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Recruitment Of Candidates In Excess Of Notified Vacancies Would Be Unconstitutional: SC

 

While dispelling all doubts on the moot question as to whether the recruitment of candidates in excess of notified vacancies would be unconstitutional or not, the Supreme Court in a latest, learned, laudable and landmark judgment titled Gajanan Babulal Bansode & Ors. Vs State of Maharashtra & Ors. in Civil Appeal No. 104 of 2021 delivered recently on February 5, 2021  has observed that the recruitment of candidates in excess of the notified vacancies, will be violative of Articles 14 and 16(1) of the Constitution or not. A three Judge Bench of the Apex Court comprising of Justices L Nageswara Rao, Indu Malhotra and Vineet Saran observed that an authority cannot fill up more than the notified number of vacancies advertised while setting aside an order passed by the Maharashtra Administrative Tribunal. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Indu Malhotra for herself, Justice L Nageswara Rao and Justice Vineet Saran wherein it is put forth that, “The Government of Maharashtra issued a requisition on 02.06.2016 to the Maharashtra Public Service Commission (“MPSC”) to conduct the Limited Departmental Competitive Examination(“LDCE”) for selection of candidates to the post of Police Sub Inspector.”

As we see, it is then unfolded in para 2 that, “The Home Department, Government of Maharashtra vide Government Circular dated 27.06.2016 notified 828 vacancies, out of which 642 were from the open category, and 186 were from various reserved categories, for promotion to the post of Police Sub-Inspector through the LDCE– 2016.”

As it turned out, the Bench then observes in para 4 that, “The MPSC recommended the names of 828 candidates, out of which 642 were from the open category, who had secured 253 marks and above; and 186 candidates were from the various reserved categories, who had secured 230 marks and above, on the basis of the corrected final result declared on 12.12.2017.”

Truth be told, it is then mentioned in para 5 that, “The Home Department, Government of Maharashtra vide a Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019 notified that the Cabinet had taken a policy decision to accommodate 636 additional candidates who had secured more than 230 marks in the LDCE – 2016 examination.”

Of course, it is then stated in para 6 that, “On 11.06.2019, the Directorate General of Police issued a direction for conducting the medical test and other formalities to send the additional 636 candidates for training to the Maharashtra Police Academy, Nasik, as a part of the process of their appointment to the post of Police Sub-Inspector.”

To put things in perspective, the Bench then envisages in para 7 that, “The Deputy Secretary of the MPSC addressed a letter dated 11.07.2019 to the Additional Chief Secretary (Appeal and Security) Government of Maharashtra wherein it was stated that as per Article 320 of the Constitution, the MPSC has the power to appoint candidates to various posts in the State. The post of Police Sub-Inspector being a Class III post, was required to be filled up in accordance with The Police Sub-Inspector (Recruitment) Rules, 1995. The list of 636 additional was notified by the Government on its official website, had been done without consulting the MPSC, which was a serious irregularity, and would hamper the functioning of the Commission.”

Quite remarkably, the Bench then points out in para 8 that, “In the above background, various Original Applications were filed by candidates to challenge the Policy decision contained in the G.R. dated 22.04.2019. In the present case O.A. No. 722 / 2019 was filed by a group of In-service candidates who were working as Police Constables, and were aggrieved by the impugned G.R., since it would adversely affect their promotional prospects. The Petitioners challenged the G.R. dated 22.04.2019 inter alia on the ground that the additional 636 candidates who were directed to be accommodated to the post of Police Sub-Inspector, was contrary to the Recruitment Rules, and would have the inevitable effect of distorting the ratio for recruitment through the Limited Departmental Examination. Rule 4 of the Police Sub-Inspector (Recruitment) Rules, 1995 provides a quota of 25% for promotion through the Local Departmental Examination. The appointment of 636 additional candidates would have the effect of distorting the quota of 25% prescribed by Rule 4, and curtail the future promotion opportunities of candidates who had either failed in the LDCE-2016, or who were not eligible on account of age, experience and educational qualification. The denial of promotional avenues to the Petitioners in the foreseeable future would be violative of Articles 14 and 16 of the Constitution of India. The Maharashtra Administrative Tribunal vide interim Order dated 18.10.2019 directed that Status Quo be maintained with respect to the 636 additional candidates whose list was appended to the Government Resolution. This Order was passed on the basis of an earlier Order dated 01.08.2019 passed by the Principal Bench of the Tribunal in O.A. No. 445 of 2019.”

Furthermore, it is then brought out in para 9 that, “Respondents No. 5 and 6 herein filed Misc. Application No.545 of 2019 to vacate the interim Order of status quo dated 18.10.2019, wherein it was prayed that a direction be given to the State to proceed with the implementation of G.R. dated 22.04.2019.”

Going ahead, the Bench then points out in para 10 that, “The Maharashtra Administrative Tribunal vide Order dated 30.11.2019 vacated the interim Order dated 18.10.2019 on the ground that two of the Petitioners had appeared in the LDCE exam, but failed to qualify in the said examination; whilst the other Petitioners had not participated in the exam. It was also held that the Petitioners had failed to implead the 636 additional candidates who were directed to be appointed under the impugned G.R., and were necessary parties to be impleaded in the O.A. Reliance was placed on the Order passed by the Bombay High Court in W.P. No. 3555/2019 Nivrathi Venkatrao Gitte v. State of Maharashtra, wherein the same G.R. dated 22.04.2019 had been challenged. The High Court had directed that the process of selection may proceed, but would be subject to the results of the Writ Petition.”

As a corollary, the Bench then states in para 11 that, “Aggrieved by the Order dated 30.11.2019, the Original Applicants / Petitioners herein filed W.P. No. 15045 of 2019 before the Bombay High Court, Aurangabad Bench. The Bombay High Court rejected the Writ Petition, and the prayer to maintain status quo with respect to the 636 additional candidates who were directed to be appointed. The High Court declined to determine whether the G.R. dated 22.04.2019 had been issued in extraordinary circumstances as provided by Rule 5, since the O.A. was pending adjudication before the Tribunal. The High Court however issued a direction to the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period, so that prior to the posting / appointment orders being issued in favour of the additional candidates, the O.A. would be decided.”

What’s more, the Bench then states in para 13 that, “Article 320(3)(a) of the Constitution of India provides that the Union Public Service Commission, or the State Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services, and for civil posts. In the present case, we find that the State of Maharashtra has issued the impugned G.R. dated 22.04.2019, without any consultation or prior approval by the MPSC, which is evident from the letter dated 11.07.2019 issued by the MPSC to the Government, expressing its disapproval of the decision taken by the Government unilaterally to make these appointments without any consultation.”

To be sure, it is then stated in para 14 that, “Rule 5 of the Police Sub-Inspector (Recruitment) Rules, 1995 provides that notwithstanding anything contained in these rules, if in the opinion of the Government, the exigencies of service require, the ratio prescribed for appointment by promotion, on the basis of Limited Departmental Examination or nomination, may be relaxed with the prior consultation of the Commission. The Government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power under Rule 5, which may be resorted to only in rare and exceptional circumstances.”

It is worth noting that it is then enunciated in para 15 that, “The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

What cannot be glossed over is that it is then stated in para 16 that, “The Tribunal has vacated the Order of status quo dated 18.10.2019, on the ground that two of the Applicants had participated in the examination, but failed to qualify. This could not be a justifiable ground to vacate the interim Order, since the promotional prospects of the Petitioners would be seriously prejudiced, since a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the Applicants.”

While continuing in a similar vein, the Bench then points out in para 17 that, “The other ground on which the Tribunal has vacated the Interim Order is stated in para 17 of the Order that the Applicants had not challenged the G.R. dated 22.4.2019. This is an erroneous observation which would be evident from the prayers in the O.A. which are set out hereunder for ready reference: –

“(A) Original Application may kindly be allowed by directing the Respondents to undertake recruitment strictly as per PSI Recruitment Rules, 1995, without any deviation therefrom.

(B) The recruitment by promotion of as many as 636 candidates sought to be made vide Govt. Resolution dated 22.4.2019, may kindly be quashed and set aside, the same being contrary to Recruitment Rules as well as binding precedent of the Hon’ble Apex Court.

€ Pending hearing and final disposal of this Application, the Respondents No.1 to 3 may kindly be directed not to take any further action in furtherance of the impugned Govt. Resolution dated 22.4.2019.

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

€ Any other suitable and equitable relief to which applicants are entitled to and this Hon’ble Tribunal deems appropriate, may kindly be granted in their favour.” (emphasis supplied)

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

Moving on, the Bench then points out in para 18 that, “The third ground on which the Tribunal has vacated the Interim Order was that in similar O.As challenging the same G.R. dated 22.4.2019, including O.A. No. 455 of 2019 filed before the Principal Bench, the Applicants in those cases had withdrawn their respective cases, since they were desirous of pursuing their representations with the State Government. This could also not be a justifiable ground for vacating the Order of status quo merely because other parties had chosen to withdraw their O.A. for their own reasons.”

Simply put, the Bench then observes in para 19 that, “We find that the High Court in the present Writ Petition has issued a direction to the State to send the additional list of 636 candidates for training of 9 months during the pendency of proceedings before the Tribunal. We are of the view that such a direction ought not to have been passed in the Writ Petition filed by the present Petitioners, who are aggrieved by the impugned Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge.”

More significantly, the Bench then holds in para 20 that, “In view of the discussion hereinabove, we allow the present Civil Appeal, and direct that Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.4.2019 will remain stayed during the pendency of proceedings before the Maharashtra Administrative Tribunal. We set aside the Order dated 30.11.2019 passed by the Maharashtra Administrative Tribunal which vacated the interim Order 18.10.2019, and the Order dated 06.03.2020 passed by the Bombay High Court in W.P. No. 15045 / 2019.”

Finally and no less significantly, it is then stated in the last para 21 that, “We direct the Maharashtra Administrative Tribunal, Nagpur Bench to decide the pending O.A. within a period of six months from the date of receipt of this Order. The Tribunal will ensure that the additional 636 candidates are given notice of the pending O.A. through the State, to enable them to appear and participate in the proceedings. The Tribunal is further directed to club all pending Original Applications challenging the impugned Government Resolution No. Police -1818/ File 355/Pol 5A, and pass a common Judgment in these cases. There will be no order as to costs. Pending applications, if any, are accordingly disposed of.”

In essence, the three Judge Apex Court Bench comprising of Justices L Nageswara Rao, Indu Malhotra and Vineet Saran minced no words in observing that the recruitment of candidates in excess of the notified vacancies, will be violative of Articles 14 and 16(1) of the Constitution or not. It was also made amply clear that an authority cannot fill up more than the notified number of vacancies advertised The order that was passed by the Maharashtra Administrative Tribunal was thus then set aside. Very rightly so!

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