GAJANAN BABULAL BANSODE & ORS.versusSTATE OF MAHARASHTRA & ORS.

478                       [2021]
               SUPREME COURT     1 S.C.R. 478
                              REPORTS                        [2021] 1 S.C.R.


A                 GAJANAN BABULAL BANSODE & ORS.
                                         v.
                     STATE OF MAHARASHTRA & ORS.
                          (Civil Appeal No. 104 of 2021)
B                             FEBRUARY 05, 2021
             [L. NAGESWARA RAO, INDU MALHOTRA AND
                             VINEET SARAN, JJ.]
             Service Law – Selection – To the post of Police Sub Inspector
      – State of Maharashtra had issued the impugned G.R. without any
C     consultation or prior approval by Maharashtra Public Service
      Commission (MPSC) – The impugned G.R. sought to fill up double
      the number of vacancies notified for Limited Departmental
      Competitive Examination (LCDE) – OAs filed challenging the policy
      decision contained in the impugned G.R. – Maharashtra
D     Administrative Tribunal by interim order directed that status quo be
      maintained with respect to 636 additional candidates whose list was
      appended to the G.R. – Held: 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 Arts.14 and 16 (1) of
E     the Constitution – Tribunal vacated the order of status quo, 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 promotional prospects of
      the applicants/petitioners would be seriously prejudiced, as a block
F     of 636 additional candidates would be appointed as Police Sub-
      Inspectors over and above the applicants – The other ground on
      which the Tribunal vacated the interim order was that the applicants
      had not challenged the G.R. – This is an erroneous observation
      which would be evident from the prayers in the O.A.– The third
      ground on which the Tribunal vacated the interim order was that in
G     similar O.As challenging the same G.R, 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      had withdrawn their respective cases, since they were desirous of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 – High Court in writ petition has
H
                                        478
    GAJANAN BABULAL BANSODE & ORS. v. STATE OF                           479
              MAHARASHTRA & ORS.

issued a direction to the State to send the additional list of 636       A
candidates for training of 9 months during the pendency of
proceedings before the Tribunal – Such a direction ought not to
have been passed in writ petition – Direction now passed by Supreme
Court that the impugned G.R. will remain stayed during pendency
of proceedings before the Tribunal – Tribunal to decide the pending
                                                                         B
O.A. within six months while ensuring 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 –
Tribunal further directed to club all pending Original Applications
challenging the impugned G.R. and pass a common judgment in
these cases – Police Sub-Inspector (Recruitment) Rules, 1995 – r.5       C
– Constitution of India – Art.320(3)(a).
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 104 of
2021.
      From the Judgment and Order dated 06.03.2020 of the High Court
                                                                         D
of Judicature at Bombay Bench at Aurangabad in Writ Petition No.
15045 of 2019.
       Vinay Navare, M.N.Rao, R.Basant, Sr. Advs., Ajay Deshpande,
Vinod Sangavikar, Anand Dilip Landge, M. Y. Deshmukh, Ms. Aaina
Verma, Ravindra Keshavrao Adsure, Siddeshwar Namdev Biradar, Yash
Prashant Sonavane, Ms. Manjeet Kirpal, Manu Krishnan, Sachin Patil,      E
Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Advs. for the appearing
parties.
        The Order of the Court was passed by
        INDU MALHOTRA, J.                                                F
       1. 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.
      2. The Home Department, Government of Maharashtra vide             G
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.
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480            SUPREME COURT REPORTS                         [2021] 1 S.C.R.


A           3. The selection was governed by the provisions of the Police
      Sub-Inspector (Recruitment) Rules, 1995. The relevant Rules are
      extracted hereunder:
            “Rule 3: Appointment to the post of Sub-Inspector of Police in
            the Police Force in the State of Maharashtra shall be made either:
B           (a) by promotion of a suitable person on the basis of seniority
            subject to fitness from amongst the persons holding the posts of
            Havaldar and Assistant Police Sub-Inspector in the Police Force
            who have completed not less than five years continuous regular
            service or seven years broken service and who qualify in the
C           departmental examination held by the Director General of Police
            in accordance with the rules laid down in paragraph 5 of the
            Government Resolution No. PSB. 0390/CR-408/POL-5-A, dated
            5th July 1995, 1994
                                        Or
D           (b) by selection of persons working in the Police Force on the
            basis of the result of the limited departmental examination held by
            the Maharashtra Public Service Commission for appointment to
            the post of Sub-Inspector of Police for admission to which a
            candidate shall-
E           (i) not be more than 35 years of age :
            Provided that, relaxation of age of five years may be granted to
            candidates of Backward Classes and-
            ‘Provided also that, the candidates who were eligible to appear
            for the limited departmental examination after 1st January, 1991,
F
            but who were not allowed to appear for the limited departmental
            examinations held in 1998 and 2002 on account of the age limit,
            shall be given three chances to appear for next consecutive
            examinations.
            (ii) have completed a minimum regular service as Police Constable
G           with educational qualifications as mentioned below
            Minimum Regular Service Educational Qualification
            (1) 4 years         ..     Degree in any faculty.
            (2) 5 years         ..     Passed the Higher Secondary School
H                                      Certificate examination
GAJANAN BABULAL BANSODE & ORS. v. STATE OF                             481
 MAHARASHTRA & ORS. [INDU MALHOTRA, J.]

 (3) 6 years         ..        Passed the Secondary School             A
                               Certificate examination
 (c) by nomination on the basis of the result of a competitive
 examination held by the Commission in accordance with the rules
 made in this behalf from time to time, and for admission to which
 a candidate shall :-                                                  B

 (i) not be less than nineteen years of age and not more than
 (twenty-eight years) of age on the date specified by the
 Commission
 Provided that the maximum age limit may be relaxed upto (thirty-      C
 one years) in respect of candidates belonging to the Backward
 Classes:
 Provided that an ex-serviceman who has served continuously in
 the Armed Forces for a period of not less than 5 years may be
 allowed to deduct from his age, the period of 2 years over and        D
 above the length of his continuous service in the Armed Forces
 upto the date of release from service.
 (ii) Possess a degree or any other qualification declared by the
 Government to be equivalent thereto;
 (iii) Possess thefollowing minimum physical measurements, namely:     E
                                    For Male
 (i) Height     ..        1165      Centimetres minimum.
 (ii) Chest     ..        79        Centimetres and above with
                                    minimum expansion of               F
                                    5 centimetres.
                                    For Female
 Height         ..        1157      Centimetres.
 Rule 4: Appointment to the post of Police Sub- Inspector by           G
 promotion, selection on the basis of limited departmental
 examination and nomination shall be made in the ratio of 25:25:50.
 Rule 5: Notwithstanding anything contained in these rules, if in
 the opinion of Government, the exigencies of service, ‘so requires,
 Government may with prior consultation with MPSC make                 H
482            SUPREME COURT REPORTS                          [2021] 1 S.C.R.


A           appointment to the post of Police Sub-Inspector in relaxation of
            the ratio prescribed for appointment by promotion selection on
            the basis of limited departmental examination or nomination.”
             4. The MPSC recommended the names of 828 candidates, out of
      which 642 were from the open category, who had secured 253 marks
B     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.
            5. The Home Department, Government of Maharashtra videa
      Government Resolution No. Police -1818/ File 355/Pol 5A dated
C     22.04.2019 notified that the Cabinet had taken a policy decisionto
      accommodate 636 additional candidates who had secured more than
      230 marks in the LDCE – 2016 examination.
             6. On 11.06.2019, the Directorate General of Police issued a
      direction for conducting the medical test and other formalities to send
D     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.
             7. The Deputy Secretary of the MPSC addressed a letter dated
      11.07.2019 to the Additional Chief Secretary (Appeal and Security)
E     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
F     consulting the MPSC, which was a serious irregularity, and would hamper
      the functioning of the Commission.
             8. 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
G     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
H     be accommodated to the post of Police Sub-Inspector, was contrary to
     GAJANAN BABULAL BANSODE & ORS. v. STATE OF                               483
      MAHARASHTRA & ORS. [INDU MALHOTRA, J.]

the Recruitment Rules, and would have the inevitable effect of distorting     A
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   B
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.
                                                                              C
      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.                                                              D

       9. 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.
                                                                              E
       10. 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 qualifyin 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    F
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         G
may proceed, but would be subject to the results of the Writ Petition.
      11. 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.
                                                                              H
484            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A            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
B
      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.
C            12. We have heard Mr. Vinay Navare, Senior Advocate for the
      Appellants, Mr. Sachin Patil, Advocate-on-record for the Respondent-
      State of Maharashtra, Mr. Ravindra Adsure for the Caveators, and Mr.
      R. Basant, Senior Advocate and Mr. M. N. Rao, Senior Advocate for
      the Intervenors.With the consent of parties, we are disposing of the
D     Appeal at the admission stage.
             13. 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.
E            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
F     these appointments without any consultation.
            14. 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
G     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.
H
     GAJANAN BABULAL BANSODE & ORS. v. STATE OF                               485
      MAHARASHTRA & ORS. [INDU MALHOTRA, J.]

       15. The impugned G.R. seeks to fill up double the number of            A
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
                                                                              B
of India.
       16. 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,    C
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.
      17. 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           D
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                E
      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           F
      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.                                                        G
      (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.
                                                                              H
486             SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A           € 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
B     vacating the interim order of stay granted vide Order dated 18.10.2019.
             18. 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
C     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.
D
             19. 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
E
      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.
             20. In view of the discussion hereinabove, we allow the present
      Civil Appeal, and direct that Government Resolution No. Police -1818/
F
      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 30.11.2019passed 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
G     Court in W.P. No. 15045 / 2019.
             21. 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
H
     GAJANAN BABULAL BANSODE & ORS. v. STATE OF                                487
      MAHARASHTRA & ORS. [INDU MALHOTRA, J.]

the State, to enable them to appear and participate in the proceedings.        A
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.              B

Devika Gujral                                                Appeal allowed.




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