Bombay High Court
Rakesh Sopanrao Ilhe And Another vs The State Of Maharashtra And ... on 21 August, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1
993 WPs 4609 n 8488 of 2019.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
WRIT PETITION NO.4609 OF 2019
Shri. Balesh S/o Dashrath Bhendekar,
Age 31 years, Occ. Nil,
R/o Flat no.309, Madhav Nagar,
Gangakhed Road, Dist. Parbhani. ... PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai.
2. Maharashtra Public Service Commission,
Through its Secretary,
Bank of India Building,
3rd Floor, Fort, Mumbai.
3. The Additional Principal Chief
Conservator of Forests,
Maharashtra State, Nagpur. ... RESPONDENTS
...
Mr. S. S. Thombre, Advocate for Petitioner.
Mrs. M. A. Deshpande, AGP for Respondent Nos.1 & 3.
...
AND
WRIT PETITION NO.8488 OF 2019
1. Rakesh s/o Sopanrao Ilhe,
Age 36 years, Occ. Nil,
R/o Chincholi Gurao,
Tal. Sangamner, Dist. Ahmednagar.
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993 WPs 4609 n 8488 of 2019.odt
2. Vishal S/o Amarsing Rathod,
Age 35 years, Occ. Primary Teacher,
R/o Nirmal Sadan, Jadhav Vasti,
Chincholi Gurao, Tal. Sangamner,
District Ahmednagar. ... PETITIONERS
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai.
2. Maharashtra Public Service Commission,
Through its Secretary,
Bank of India Building,
3rd Floor, Fort, Mumbai.
3. The Additional Principal Chief
Conservator of Forests,
Maharashtra State, Nagpur. ... RESPONDENTS
...
Mr. S. S. Thombre, Advocate for Petitioners.
Mrs. M. A. Deshpande, AGP for Respondent Nos.1 & 3.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE : 21st August, 2021.
PER COURT:
. The facts are taken from Writ Petition No.4609 of 2019.
993 WPs 4609 n 8488 of 2019.odt
2 Pursuant to the advertisement dated 12th February, 2014
the petitioners applied for the post of Range Forest Officer purportedly
from NT-D category / SC category. The select list was published on
or about 12th February, 2016. On or about November 2016, the
appointment order was issued to three persons from NT-D category.
One person did not join. The cut-off marks were 190. The petitioner
secured 190 marks. The petitioner sought appointment on the post,
which was vacant on account of the person not joining the post
though the appointment order was issued to him. The respondents
did not consider the claim of the petitioner. The petitioners filed
original applications before the Maharashtra Administrative Tribunal
seeking appointment orders. The Tribunal dismissed the original
applications filed by the petitioners. Aggrieved thereby, the present
writ petitions.
3 Mr. Thombre, learned counsel for petitioners submits that
the advertisement was issued on 12th February, 2014. The Rules of
2014 came into force in August 2014. The Rules cannot have a
retrospective operation. The learned counsel further submits that the
2005 Rules provided for the wait list to be in operation for two years.
The petitioner was entitled for appointment on the vacant post. The
post on which the appointment was sought by the petitioner was not
993 WPs 4609 n 8488 of 2019.odt
an additional post, but the post advertised and vacant as the
candidate issued with the appointment order did not join. The
petitioner will be the next candidate.
4 The learned counsel in alternate submits that even
assuming that 2014 Rules apply, the advertisement was not issued for
the multi cadre post. The post of Range Forest Officer and Assistant
Conservator of Forest cannot be said to be multi cadre post and in
case of advertisement for the post other than multi cadre post, the
wait list is to be operated. According to the learned counsel, there
was no impediment to give appointment to the petitioner. The learned
counsel further submits that the amendment of 2011 was not referred
to by the Tribunal in its judgment nor the same was relied upon. The
2011 amendment came into force on 8th August, 2013. However, the
Tribunal has not at all considered the said Rules.
5 The learned Additional Government Pleader submits that
2011 Rules were pleaded in the affidavit in reply before the Tribunal.
The 2011 amendment Rules did not provide for the maintenance of
wait list either for single post or multi cadre post. The said Rules were
in force and in effect. The learned Additional Government Pleader
further submits that the 2014 Rules also provide that in case of
993 WPs 4609 n 8488 of 2019.odt
recruitment by competitive examination wherever multiple cadre posts
are involved, the reserve list shall not be maintained. In case of direct
recruitment, the reserve list shall be maintained to the extent of 50%
of the posts advertised and shall lapse on the expiry of one year from
the date of declaration of the result. The same has been adhered to.
The learned Additional Government Pleader for substantiating the
contentions that 2011 Rules also were in force, relied upon the
judgment in Writ Petition No.5621 of 2015 and Writ Petition No.4555
of 2016 dated 3rd July, 2018.
6 We have considered the submissions canvassed by the
learned counsel for parties.
7 It appears from the judgment delivered by the Tribunal
that the Tribunal did not consider the amendment Rules 2011.
Initially, the recruitment process, it appears, was governed by the
Rules of 2005, namely the Maharashtra Public Service Commission
Rules of Procedure, 2005. The same came to be amended in the
year 2011 under the title the Maharashtra Public Service Commission
Rules of Procedure (Amendment), 2011. All the earlier Rules were
considered and subsequently all these amendments were
consolidated and the Rules namely the Maharashtra Public Service
993 WPs 4609 n 8488 of 2019.odt
Commission Rules of Procedure, 2014 were enacted. The prelude to
the Rules itself state that the Rules of procedure are revised in the
year 2005 and after the revised Rules of procedure came into being
on 20th October 2005, several amendments were made to the said
Rules of Procedure over the period of time. In supersession of all the
modifications earlier made and all the previous Rules, the Rules 2014
were enacted. Clause 8(a) and (b) of the Rules 2014 reads thus:
"(8) (a) In case of recruitment by Competitive
Examination wherever multiple cadre posts are involved,
the reserve list shall not be maintained. The posts fallen
vacant due to non-acceptance of the offer of appointment
by the candidates recommended, shall be filled in through
subsequent Competitive Examination. When only single
cadre is involved for selection by competitive examination
the reserve list shall be maintained for a period of one year
from the date of declaration of the result or up to the
publication of subsequent advertisement for recruitment to
the same post "whichever" is earlier.
(b) In case of direct recruitment, the reserve list
shall be maintained to the extent of 50% of the posts
advertised and shall lapse on the expiry of one year from
the date of declaration of the result or on the publication of
subsequent advertisement for recruitment to the
concerned post, whichever is earlier."
993 WPs 4609 n 8488 of 2019.odt
8 Advertisement of the instant selection process was issued
on 12th February, 2014 and these Rules came into effect from 16 th day
of May, 2014. As on the date the advertisement was issued, the
amended Rules 2011 were in force. The amended Rules 2011 with
regard to the methodology of the post becoming vacant, provide as
under:
"Clause (7) of rule - 10 of the principal rule shall be
substituted by the following clauses :-
a) In case of recruitment by Competitive
Examination, the reserve list shall not be
maintained. The posts fallen vacant due to non-
acceptance of the offer of appointment by the
candidates recommended, shall be filled in through
subsequent Competitive Examination.
b) In case of direct recruitment, the reserve list
shall apse on the expiry of one year from the date of
declaration of the result or on the publication of
subsequent advertisement for recruitment to the
concerned post, whichever is earlier."
9 Under 2011 Amendment Rules, clause (7) of Rule 10
came to be substituted by the aforesaid clause. Prior to the
amendment of clause (7) of Rule 10 by Amendment Rules 2011,
clause (7) of Rule 10 of the 2005 Rules reads thus:
993 WPs 4609 n 8488 of 2019.odt
"10. Appointment of Interview Committee and
declaration of result. -
(1) ....
(7) Wait list.- Based on the merit of the Candidates
in their respective category, the Commission may maintain
a reserve list up to the 10% of the vacancies in each
category. Provided further that the candidates from the
reserve list may be recommended to the Government only
if the candidates recommended earlier are unable to
accept the offer of appointment for any reason. This
waiting list shall not be operative for any additional number
of posts, other than those advertised. Further this reserve
list and entire merit list shall be maintained confidentially
with the Secretary of the Commission only. This reserve
list shall lapse on the declaration of date of subsequent
examination for the same category or after a period of two
years from the date of preparation of this reserve list
whichever is earlier."
10 It would appear that in 2005 Rules, the provision was
made for wait list. The said provision was substituted in 2011
Amendment Rules. As per the said amendment, in case of
recruitment by competitive examination, the reserve list shall not be
maintained. The posts fallen vacant due to non-acceptance of the
offer of appointment by the candidates recommended, shall be filled in
993 WPs 4609 n 8488 of 2019.odt
through subsequent competitive examination and the reserve list was
maintained in case of direct recruitment only.
11 In the present matter, the recruitment was through the
competitive examination. The same does not appear to be a disputed
fact. According to Mr. Thombre, learned counsel, these 2011
Amendment Rules came into effect from 8th August, 2013. Even if
these Amendment Rules 2011 came into effect from 8th August, 2013,
the same would apply to the advertisement of 12th February, 2014.
12 As per this amended Rules, there is no provision made for
preparing wait/reserve list in case of recruitment by competitive
examination. The distinction between the competitive examination
and direct recruitment is also clarified in the Rules.
13 The Rules of 2011 were also subject matter of discussion
before the Division Bench of this Court at Principal Seat in Writ
Petition No.5621 of 2015 and Writ Petition No.4555 of 2016 decided
on 3rd July, 2018.
14 It would appear that the advertisement was for the post of
Assistant Conservator of Forest and also for the post of Range Forest
993 WPs 4609 n 8488 of 2019.odt
Officer and the recruitment was through the competitive examination.
It is only if single cadre is involved for selection by competitive
examination, reserve list is to be maintained for one year. The same
is as per the Rules of 2014 (come into effect from May 2014) i.e. after
issuance of the advertisement. As the advertisement was for multi
cadre post, the provision of reserve list / wait list also would not arise.
The Tribunal has considered the said aspect.
15 Considering the case either from the point of view of
Amendment Rules 2011 or subsequently fresh Rules of 2014, the
petitioners are not entitled for the relief.
16 In view of that, both the writ petitions stand disposed of.
No costs.
[ R. N. LADDHA, J. ] [ S. V. GANGAPURWALA, J. ]
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