The Maha. Public Service ... vs Prafulla S/O Vinayakrao ...
2022 Latest Caselaw 10276 Bom

                           1

                                         06-10-2022-wp-4649-2022.odt

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR
              Writ Petition No.4649 of 2022

The Maharashtra Public Service Commission,
through its Secretary,
Office at 5½th Floor,
Cooperage Telephone Nigam Building,
Maharshi Karve Road,
Mumbai 400021,
(Original respondent no.2)                              ... Petitioner

     Versus

1.   Prafulla S/o Vinayakrao Washimkar,
     Aged : Major,
     Occu.- Unemployed,
     R/o 462, Dr. Ambedkar Nagar,
     Nagpur.

2.   The State of Maharashtra,
     through its Secretary,
     Industry, Energy and Labour Department,
     Mantralaya, Mumbai-32.                             ... Respondents


Shri S.S. Ghate, Advocate for Petitioner.
Respondent No.1 in person.
Ms N.P. Mehta, Assistant Government Pleader for Respondent No.2.


        CORAM : SUNIL B. SHUKRE & G.A. SANAP, JJ.

DATE : 6th OCTOBER, 2022

ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :

1. Rule. Rule is made returnable forthwith. Heard finally by

consent of the learned counsel for the parties.

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2. The respondent No.1 having appeared at the written

examination held on 2-5-2018 for making an appointment to the post

of Assistant Commissioner of Labour was declared successful in the

examination and was placed at Serial No.12 of the wait-list, which is

called by the Maharashtra Public Service Commission Rules of

Procedure, 2014 ("the Rules of 2014", for short) as reserved list. The

petitioner was so selected from the category reserved for Scheduled

Caste candidates.

3. There were other two persons belonging to Scheduled Caste

category, who were placed above the respondent No.1 in terms of

merit and there being one post reserved for the Scheduled Caste

candidate, the candidature of the first person topping the list of

Scheduled Caste candidates was considered and appointment was

given to her. However, for some reason, she did not join the service

and, therefore, the appointment was offered to the next candidate in

line, who was one Shri Sandeep Mashilkar. Even said Shri Sandeep

Mashilkar did not join the service and, therefore, the appointment

should have naturally be given to the respondent No.1, but by the time

the turn of the respondent No.1 came, the validity of the reserved list,

as per the Rules of 2014 was already over and the list stood lapsed.

The effect was that the respondent No.1 lost his right to secure the

appointment as per the reserved list and as such no appointment to

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the post of Assistant Commissioner of Labour was offered to the

respondent No.1.

4. Sensing that the respondent No.1 would not be offered any

appointment by the petitioner- Maharashtra Public Service

Commission, even before the expiry of the reserved list on 25-5-2019,

the respondent No.1 approached the Maharashtra Administrative

Tribunal by filing an Original Application on 25-3-2019 seeking a

direction for being appointed to the post of Assistant Commissioner of

Labour.

5. This application was registered as Original Application No.239

of 2019 and it was decided by the order passed on 21-1-2020 by the

Maharashtra Administrative Tribunal. The Tribunal did not consider

the submission of the Presenting Officer made to it that by the time the

order was to be passed by the Tribunal, the reserved list had stood

lapsed and gave liberty to the respondent No.1 to make a

representation, initially to the State Government and later on, by way

of correction to the final order, to the Maharashtra Public Service

Commission, i.e. the petitioner herein, for consideration of his claim

regarding his appointment as Assistant Commissioner of Labour on the

strength of the reserved list prepared by the Maharashtra Public

Service Commission on 25-5-2018.

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6. Meanwhile, the State Government sent a recommendation to

the Maharashtra Public Service Commission to consider the claim of

the respondent No.1 as a special case for the reason that there were

several vacancies in the post of Assistant Commissioner of Labour and

the procedure followed for filling up those vacancies was

time-consuming. The recommendation, however, was not accepted by

the petitioner-Maharashtra Public Service Commission and it rejected

the representation of the respondent No.1. The petitioner found that

the Rules of 2014 were very clear in this regard and as per

Rule 10(8)(a) and (b) thereof, the claim of the respondent No.1 could

not be accepted by it.

7. The respondent No.1 then approached the Maharashtra

Administrative Tribunal by challenging the decision of the petitioner

dated 30-7-2020. The application was registered as Original

Application No.46 of 2021. This time, the Tribunal found that there

was not just recommendation made by the State Government to the

Maharashtra Public Service Commission for giving appointment to the

respondent No.1 to the post of Assistant Commissioner of Labour

against Rule 10(8) of the Rules of 2014 and as a special case, but

found that there was a decision taken by the State Government for

giving appointment to the respondent No.1 to the said post. The

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Maharashtra Public Service Commission being aggrieved by the

decision of the Tribunal dated 22-3-2022 has approached this Court.

8. We have heard Shri S.S. Ghate, learned counsel for the

petitioner- Maharashtra Public Service Commission; the respondent

No.1- Prafulla Vinayakrao Washimkar, the concerned candidate in

person; and also Ms N.P. Mehta, learned Assistant Government

Pleader for the respondent No.2- State.

9. According to the respondent No.1, his Original Application

filed before the Maharashtra Administrative Tribunal being before the

expiry of the reserved list on 25-5-2019, the Tribunal as well as the

State Government and the Maharashtra Public Service Commission

had power to consider the case of the respondent No.1 and grant him

an appointment to the post of Assistant Commissioner of Labour. He

relies upon the observations made in Para 32 of the judgment

delivered by High Court of Madhya Pradesh in Writ Petition No.4792

of 2020 decided on 9-9-2021.

10. In our view, this judgment has no application to the facts of

the present case for the reason that during the validity period of the

reserved list here, no vacancy to the post of Assistant Commissioner of

Labour reserved for Scheduled Caste category arose and this is clear

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from the communication of the State Government dated 6-7-2020. On

the contrary, this case would be governed by the view taken by the

Supreme Court in the case of Gujarat State Dy. Executive Vs. State of

Gujarat and Ors., reported in 1994 Supp (2) SCC 591, wherein in

Para 8 of the judgment, the Supreme Court has held that the right to

claim appointment on the basis of selection list or waiting list exists

only during the period in which the selection list or waiting list

remains operative. As stated earlier, the vacancy for the post of

Assistant Commissioner of Labour, reserved for Scheduled Caste

category candidates, did not arise before expiry of the reserved list on

25-5-2019, as indicated in the present case. Therefore, there was no

right existing in favour of the respondent No.1 to claim any

appointment to the post of Assistant Commissioner of Labour, as

attempted by him. Besides, Rule 10(8)(b) of the Rules of 2014 is very

clear and it does not leave any scope for making any exception to it. It

clearly lays down that the reserved list prepared for making direct

recruitment would lapsed on the expiry of one year from the date of

declaration of the result or on the publication of subsequent

advertisement for the recruitment to the concerned post, whichever is

earlier. This Rule was amended in the year 2016, but the position of

validity of such reserved list for a period of only one year has

remained unchanged even after the amendment. Therefore, no

benefit could have been given to the respondent No.1 by the petitioner

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nor by the Maharashtra Administrative Tribunal, as sought to be done

by the Tribunal in its impugned order. In fact, the Tribunal has

committed a serious error of fact and law by taking an erroneous view

that there is a decision of the State Government to give an

appointment to the respondent No.1 to the post of Assistant

Commissioner of Labour (Scheduled Caste). As stated earlier, there is

no such decision by the State Government, rather there is only a

recommendation made in this regard, and that too as a special case,

but, the Rules of 2014 do not make any provision for giving the benefit

as sought for by the respondent No.1 as a special case, after the expiry

of wait-list or reserved list.

11. We, therefore, find that the impugned order is contrary to the

well-settled position of law and also to Rule 10(8) of the Rules of 2014

and, therefore, it cannot stand to the scrutiny of law. Thus, the

petition deserves to be allowed.

12. The petition is allowed. The impugned order passed by the

Maharashtra Administrative Tribunal dated 22-3-2022 in Original

Application No.46 of 2021 is hereby quashed and set aside.

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13. Rule is made absolute in the aforesaid terms. No costs.

                                 (G.A. SANAP, J.)                     (SUNIL B. SHUKRE, J.)
          Lanjewar




Digitally Signed By :P D
LANJEWAR
Signing Date:07.10.2022
15:48