Bombay High Court
Niteen Navnath Waghmare And ... vs The State Of Maharashtra And ... on 18 November, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6943 OF 2021
Kishor Bhaskarrao Khedkar
and others .. Petitioners
Versus
1. The State of Maharashtra and others .. Respondents
Shri Suhail Farooquo Gulam, Advocate with Shri Zaker Siddiqui,
Advocate for the Petitioner.
Shri A. R. Kale, A.G.P. for Respondent Nos. 1 to 8.
Shri D. G. Nagode, Advocate for the Respondent No. 9.
WITH
WRIT PETITION NO. 7496 OF 2021
Gurulingappa Vasantappa Galge .. Petitioner
Versus
1. The State of Maharashtra and others .. Respondents
Shri Chandrakant D. Biradar, Advocate for the Petitioner.
Shri A. R. Kale, A.G.P. for Respondent Nos. 1 to 4.
WITH
WRIT PETITION NO. 11218 OF 2021
Niteen Navnath Waghmare
and another .. Petitioners
Versus
1. The State of Maharashtra and others .. Respondents
Shri Milind K. Kakde, Advocate for Petitioners.
Shri A. R. Kale, A.G.P. for Respondents/State.
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WITH
WRIT PETITION NO. 11276 OF 2021
Ganesh Chhaburao Karhad and others .. Petitioners
Versus
1. The State of Maharashtra and others .. Respondents
Shri Milind K. Kakde, Advocate for Petitioners.
Shri A. R. Kale, A.G.P. for Respondents/State.
CORAM : S. V. GANGAPURWALA AND
R. N. LADDHA, JJ.
CLOSED FOR ORDERS ON : 27.10.2021
ORDER PRONOUNCED ON : 18.11.2021
FINAL ORDER (Per S. V. Gangapurwala, J.) :-
. The petitioners seek directions against the respondents to
fill up the balance 50% vacant posts from the merit list declared
on 09th April, 2021.
2. On or about 22nd February, 2019, the State Government
published an advertisement for filling up the vacant posts in
Group - C (Class - III) category relating to the Health
Department. Though the advertisement was published, the
recruitment process was delayed purportedly because of the
State Assembly elections. Upon conduct of the examination,
merit list, it appears is published in April 2021. The respondents
issued a notification on 18.01.2021 informing that only 50% of
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the available vacant posts would be filled in. The merit list was
prepared only for the 50% of the vacant posts. In the
interregnum the Apex Court struck down S.E.B.C. reservation
introduced by the Maharashtra Reservation Act. Subsequently,
fresh advertisement is issued. In view of the
letter/communication dated 18.01.2021, 50% posts were filled in.
Subsequently, fresh advertisement is issued on 04 th August, 2021
for filling 2275 posts lying vacant with the Health Department.
3. Mr. Suhail Farooquo Gulam, Mr. Chandrakant D. Biradar,
Mr. Milind Kakde, the learned advocates for petitioners in
respective writ petitions canvassed the submissions. According
to the learned counsel for petitioners, under the communication
dated 12.12.2020 and 18.01.2021 only two reasons are given for
filling up of 50% of total posts viz (i) pending challenge to the
Maratha Reservation in the Supreme Court (ii) Covid - 19
pandemic situation in the State of Maharashtra. The learned
counsel submit that, the decision to fill up only 50% of the vacant
posts/advertised posts has resulted in depriving the right of the
petitioners who stand in the merit list/select list. The decision to
fill up only 50% of the advertised posts is arbitrary and violative
of Article 14 of the Constitution of India. The respondent No. 1
has not given any justifiable or rational explanation for not
taking up the process of filling up the vacant posts from the
candidates appearing in the select list and giving a fresh
advertisement. The Apex Court, subsequently, has also quashed
the S.E.B.C. reservation. Said posts could have been adjusted.
According to the learned counsel, total 5997 posts are vacant,
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still there are many vacant posts available. The petitioners
whose names appear in the select list can be accommodated as
against the said posts. The learned advocates for petitioners also
submit that, it is legitimate expectation of the persons whose
names appear in the merit/select list for being considered for the
post advertised. Abruptly taking a decision after the selection
process has undergone to fill up only 50% posts is irrational,
arbitrary and does not stand to any reason. According to the
learned advocates for petitioners, as no plausible reason is
coming forth, the action deserves to be set aside and the
respondents be directed to fill in all the posts advertised.
According to the learned counsel, the decision is not bonafide.
The learned advocates rely on the following judgments.
I. Shankarsan Dash Vs. Union of India reported in 1991 AIR
1612.
II. Pitta Naveen Kumar and others Vs. Raja Narsaiah Zangiti
and others reported in SLP (Civil) No. 6789 of 2006 dated
14.09.2006.
III. Dinesh Kumar Kashyap and others Vs. South East Central
Railway and others reported in (2019) 12 SCC 798.
IV. Gujrat State Dy. Executive Engineers Association Vs. State
of Gujrat and others reported in 1994 (Suppl.) (2) SCC 591.
V. The State of J & K and others Vs. Sat Pal reported in 2013
DGLS (SC) 96.
VI. Surinder Singh and others Vs. State of Punjab and another
reported in (1997) 8 SCC 488.
VII. A. P. Aggarwal Vs. Government of N. C. T. of Delhi and
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another reported in AIR 2000 SC 205.
VIII. Jain Narain Ram Vs. State of U. P. and others reported in
(1996) 1 SCC 332.
IX. Virender S. Hooda and others Vs. State of Haryana and
another reported in AIR 1999 SC 1701.
X. Maharashtra Public Service Commission Vs. Jeevan
Nivurttirao Wader dated 15.02.2019 in Writ Petition No.
12845 of 2018.
XI. Dnyaneshwar S/o Abimanyu Wakade and others Vs. The
State of Maharashtra and others 30.04.2020 in Writ
Petition No. 6368 of 2019.
XII. Rakhi Ray and others Vs. High Court of Delhi and others
dated 01.02.2010 in Civil Appeal No. 1133 of 2010.
XIII. Angad Dnyanoba Shitale and others Vs. The State of
Maharashtra and others dated 04.05.2021 in Writ Petition
No. 11843 of 2017.
XIV. Prem Prakas Vs. Union of India and others reported in
1984 (Supp.) SCC 687.
XV. R. S. Mittal Vs. Union of India reported in 1995 Supp. (2)
SCC 230.
4. The learned Assistant Government Pleader for respondents
submits that, though the advertisement was issued on 22 nd
February, 2019 for filling up Class III (Group - C) posts, the
Government had to take decision due to Covid-19 pandemic to fill
in 50% posts from the total advertised posts and letter to that
effect was issued on 18.01.2021. As per Clause Nos. 27 and 30 of
the advertisement dated 22nd February, 2021, powers vest with
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appointing authority to reduce the posts including the reserved
posts and also to increase the posts including the reserved posts.
The petitioners were well aware about the letter dated
18.01.2021, whereby the posts were reduced to 50%, still the
petitioners participated in the recruitment process and only after
petitioners failed to get an appointment, approached this Court
by filing writ petitions. Fresh advertisement is issued on
04.08.2021 for filling in total 2725 posts lying vacant with the
Health Department. The petitioners have not challenged the
communication and the decision dated 28.01.2021 thereby
deciding to fill in only 50% of the posts advertised in February
2019. The learned A. G. P. relies upon the following judgments.
I. State of U. P. and others Vs. U. P. Rajya Khanij Vikas
Nigam S. S. and others reported in (2008) 12 SCC 675.
II. Shankarsan Dash Vs. Union of Inida reported in (1991) 3
SCC 47.
5. We have considered the submissions canvased by the
learned counsel for respective parties.
6. From the facts on record, it appears that, advertisement
was issued on 22.02.2019 for filling up various vacant posts in
Class - III (Group - C) category under the Health Department by
nomination. On 23rd December, 2020, Government Resolution
was issued, whereby the General Administration Department of
Health Services Commissionerate resolved to fill in only 50% of
total capacity of vacant posts due to Covid - 19 pandemic
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situation in the State of Maharashtra and challenge to the
Maratha Reservation (S.E.B.C.) pending before the Apex Court.
It was also resolved to conduct the examination of the candidates
pursuant to the advertisement of February 2019 on 28.02.2021.
Subsequently to the said Government Resolution the exams were
conducted on 28.02.2021 of the candidates applying under the
advertisement of February 2019. The merit list was prepared
and as the decision was taken to fill in only 50% of the advertised
posts, the reservations also underwent change. Out of the 50%
seats, which the respondent No. 2 had resolved to fill in 25%
posts were to be filled in from general category and balance from
reserved category. Subsequently, circular was also issued on
20.01.2021 that the decision has been taken to fill in 50% of the
vacant posts keeping in mind challenge to the S. E. B. C.
reservation in the Supreme Court of India. On or about
05.05.2021, the Apex Court struck down Maharashtra
Reservation Act and held that reservation granted under S. E. B.
C. is unconstitutional. The process has been completed of filling
in 50% of those vacant posts advertised under advertisement
dated 22.02.2019. The petitioners seek a direction that they also
shall be considered for appointment on the posts which have not
been filled in by the respondents though were advertised.
7. It would be clear that the examinations pursuant to the
advertisement of February 2019 were held of the candidates on
or about 28.02.2021. Prior to the examination, decision was
already taken on 23rd December, 2020 that only 50% of the
advertised posts would be filled in. Under circular dated
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28.01.2021 it was also communicated that only 50% posts would
be filled in. The petitioners were made aware that only 50% of
the advertised posts would be filled in and thereafter they
appeared for the examination on 28.02.2021. Results were
declared in April 2021 and merit list was published accordingly.
Because of reduction in the vacant posts the reservation
underwent change.
8. It is not case that after the merit list was published, the
respondents have taken decision to only fill in only 50% of the
vacant posts. Much before the petitioners appeared in the
examination, the petitioners were made aware pursuant to the
G. R. dated 23rd December, 2020 and the circular dated
28.01.2021 that only 50% of the advertised posts are to be filled
in and thereafter exams were conducted. The petitioners
appeared for the examination and select list was prepared
accordingly.
9. The reasons have been given for filling in only 50% of the
posts viz challenge to the S. E. B. C. reservation pending before
the Apex Court and the Apex Court had granted stay to the
judgment of the Bombay High Court and further the pandemic
situation. The decision to fill in only 50% of the posts is not
without any reason.
10. The candidates finding place in the select list did not get
an indefeasible right to be appointed. The Apex Court in a case
of Shankarsan Dash Vs. Union of India (supra) relied by the
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learned counsel for petitioners have clarified that the
advertisement/notification merely amounts to an invitation to
qualified candidates to apply for recruitment and on their
selection they do not acquire any right to the post. The Apex
Court held that, even if vacancies are notified for appointment
and adequate number of candidates are found fit, the
unsuccessful candidates do not acquire an indefeasible right to
be appointed. Ordinarily, the notification merely amounts to an
invitation to qualified candidates to apply for recruitment and on
their selection they do not acquire any right to the post. Unless
the relevant recruitment rules so indicate, the State is under no
legal duty to fill up all or any of the vacancies. However, it does
not mean that, the State has the licence of acting in an arbitrary
manner. The decision not to fill up the vacancies has to be taken
bonafide for appropriate reasons.
11. In the present cases, before the petitioners appeared for
the examination, the petitioners were made aware that only 50%
of the posts advertised would be filled in and with said
knowledge the petitioners participated in the selection process,
had appeared in the examination held on 28.02.2021. It is not
that the State took a decision to fill in only 50% of the posts
advertised after preparing the select list. The decision was taken
much earlier. The reasons were also given for the said decision i.
e. the Apex Court had granted stay to the S.E.B.C. reservation.
The advertisement also included the posts reserved for S.E.B.C.
and secondly by Covid-19 pandemic situation. The reasons were
plausible reasons. We do not find any malafides in the decision
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of the State Government in filling up vacancies to the extent of
50% only. In a case of Prem Prakas Vs. Union of India and
others (supra), the Apex Court had observed that, persons
selected and included in merit list were unjustifiably denied
appointments by appointing against their vacancies persons who
were selected in previous year but could not be appointed. The
Apex Court in that case held the same to be erroneous. In a case
of R. S. Mittal Vs. Union of India (supra), the Apex Court held
that, where there is a vacancy, which can be offered to a selected
candidate on the basis of his merit position, denial of
appointment to him without a proper reason is unjustified. In
the present case, as observed above, the reasons were already
notified for filling up only 50% of the advertised posts. The said
decision was taken prior to the commencement of selection
process. Even the exam pursuant to the advertisement was
conducted after the decision was taken to fill in only 50% of the
advertised posts. The decision does not suffer from malafides,
nor can be said to be arbitrary. No relief can be granted to the
petitioners.
12. In view of the above, the writ petitions stand dismissed,
however, with no order as to costs.
[R. N. LADDHA, J.] [S. V. GANGAPURWALA, J.]
bsb/Nov. 21
