Bombay High Court
Maharashtra Public Service Commission ... vs Shri. Amol Parshuram Patil And Ors on 16 August, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:33480-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2881 OF 2021
Maharashtra Public Service Commission, ]
Through its Secretary ]
Having office at Cooperage Telephone ]
Nigam Building, M.K. Road, Cooperate, ]
Mumbai - 400 021. ] .. Petitioner
Versus
1. Amol Parshuram Patil, ]
R/of Post Dheku Khurd, Tal. Amalner, Dist. Jalna. ]
2. Kishor Laxman Gaikwad, ]
R/of Saidatta, Runwal Park, Dighi, Pune. ]
3. Reshma Pratap Kashid, ]
R/of Post Khubi, Tal. Karad, Dist. Satara. ]
4. Sachin Kalyanrao Ukirde, ]
R/of Post Shevga, Tal. & Dist. Aurangabad. ]
5. Shivanand Sudhakar Kokane, ]
R/of Post Kasar Balkunda, Tal. Nilanga, Dist. Latur ]
6. Sandip Shivajirao Jagtap, ]
R/of Post Palsingan, Tal. & Dist. Beed. ]
7. Satish Baban Lande, ]
R/of Post Manjri, Tal. Gangapur, Dist. Aurangabad. ]
8. Chandrashekhar D. Parulekar, ]
R/of Trimurti Colony, Kalamba Road, Kolhapur. ]
9. The State of Maharashtra, ]
Through Additional Chief Secretary, ]
Finance Department, Mantralaya, Mumbai. ]
10. The Commissioner, ]
Maharashtra State Sales Tax Department, ]
GST Bhavan, Mazgao, Mumbai. ] .. Respondents
Mr. Ashutosh Kulkarni with Mr. Siddharth Shitole, Advocates for the
Petitioner.
Mr. Sandeep Dere with Mrs. Arati Patil Dere and Ms. Sonali Pawar,
Advocates for Respondent Nos.1 to 8.
Mr. M.M. Pabale, Assistant Government Pleader for Respondent Nos.9 and
10.
1/10
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::: Uploaded on - 21/08/2024 ::: Downloaded on - 24/08/2024 03:50:42 :::
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
DATE : 16TH AUGUST, 2024.
ORAL JUDGMENT : { Per A.S. Chandurkar, J. }
1. Rule. Rule made returnable forthwith and heard learned counsel for
the parties.
2. The question that arises for consideration in this writ petition is the
weightage to be given to the steps taken by the Appointing Authority to fill
in vacancies by operating the wait-list prior to the expiry of its life vis-a-vis
the actual requisition being made by the Appointing Authority to the
Recruiting Agency shortly thereafter.
3. The facts lie in a narrow compass :
With a view to fill in about 450 posts of "Tax Assistant" with the
Sales Tax Department of the State of Maharashtra - respondent no.10,
Advertisement No.36 of 2016 was published on 5 th July 2016. The
examination in that regard was conducted by the petitioner - Maharashtra
Public Service Commission (MPSC) as the Recruiting Agency. The results
of the said examination were declared on 17 th February 2017 and the final
list of eligible candidates whose names were to be recommended to the
Appointing Authority was published on 8 th March 2017. Between 22nd
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March 2017 to 24th May 2017, the Sales Tax Department undertook the
exercise of verification of documents of the eligible candidates. Since
about 56 candidates remained absent, the Sales Tax Department issued
reminders to them on 26th May 2017. 12 candidates got their documents
verified. Yet another reminder was issued on 27 th October 2017 in which 2
candidates were present. A final reminder was issued on 14 th November
2017 in which no candidate was present. As a result, there remained 42
candidates from the list of eligible candidates who did not turn up for
verification of their documents. This resulted in there being 42 vacancies
on the said posts. On 14th December 2017, the Commissioner, Sales Tax
Department issued a communication to the respondent no.9 - Additional
Chief Secretary, Finance Department of the State Government stating
therein that in the recruitment process conducted for filling in the
aforesaid 450 vacancies, 41 candidates remained absent during the stage
of verification of documents while 1 candidate was found to be ineligible.
As a result there were 42 vacancies and hence a request was made to
demand equivalent number of candidates from the wait-list from the
MPSC. Ultimately on 17th March 2018, the Finance Department made a
request to the MPSC to make available names of 42 candidates from the
waiting list to enable it to complete the recruitment process. On 3 rd April
2018, the MPSC responded to the aforesaid communication by submitting
that the results of the written examination were declared on 8 th March
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2017 and the demand of the names of candidates from the waiting list was
made by the Finance Department on 17 th March 2018. Since this demand
was made beyond the period of one year, the wait list had lapsed. It
therefore declined to intimate the names of 42 candidates from the wait
list.
4. Being aggrieved by the aforesaid communication dated 3 rd April
2018, the respondent nos.1 to 8 - wait listed candidates approached the
Maharashtra Administrative Tribunal by filing Original Application No.792
of 2018. The Tribunal by its judgment dated 11 th December 2019 held that
since the requisition for names of candidates from the wait list had been
made and the Finance Department found it necessary to fill in the
vacancies on account of implementation of the Goods and Service Tax
regime, delay of nine days in addressing the communication dated 17 th
March 2018 was not very material. After noting that there were still 8
vacancies that had not been filled in besides the 42 candidates whose
names were called from the waiting list, the MPSC was directed to act on
the requisition dated 17th March 2018 and send the list of recommended
candidates from the Wait list. The Maharashtra Administrative Tribunal
however observed that its decision should not be treated as a precedent.
Being aggrieved by the direction to send the names from the Wait list, the
MPSC has challenged the same in the present writ petition.
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5. Mr. Ashutosh Kulkarni, learned counsel for the MPSC referred to the
Maharashtra Public Service Commission Rules of Procedure, 2014 (Rules
of Procedure) and especially Rule 10(8)(b) thereof to submit that the
reserve list that was required to be maintained while undertaking direct
recruitment would lapse on the expiry of one year from the date of
declaration of results or on the publication of a subsequent advertisement
for recruitment to the concerned post, whichever was earlier. In view of
this position it was submitted that the Tribunal had no jurisdiction
whatsoever to direct the MPSC to supply the names of candidates from the
reserve list after a lapse of one year from the date of declaration of results.
Once the period of one year had expired, the life of the reserve list came
to an end. Placing reliance on the judgment of the Division Bench in
Maharashtra Public Service Commission Vs. Pankajkumar C. Dabhire and
Ors. (Writ Petition No.5621 of 2015 with Writ Petition No.4555 of 2016)
decided on 3rd July 2018, it was submitted that by issuing such direction
the Tribunal had extended the period of validity of the reserve list beyond
its permissible life which it was not entitled to do. It was therefore
submitted that the direction issued by the Tribunal was beyond its
jurisdiction and this Court ought to interfere in exercise of writ
jurisdiction.
6. Per contra Mr. Sandeep Dere, learned counsel appearing for the wait
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listed candidates submitted that after declaration of the results on 8 th
March 2017, the Sales Tax Department undertook the exercise of
verification of documents. At the end of this exercise, it was found that 42
candidates had not turned up for document verification despite their
names being present in the final select list. According to him, the Sales Tax
Department on 14th December 2017 itself having made a requisition for
names of 42 candidates from the Wait list, the mere fact that the Finance
Department took some time to make the actual requisition on 17 th March
2018 could not be held against the wait listed candidates. Noticing these
facts, the Tribunal rightly issued the impugned direction. It was further
submitted that the Sales Tax Department was the Appointing Authority
and it had not raised any grievance in this regard since it was a need of
Tax Assistants for filling in the said posts. Once the vacancies had arisen
prior to the expiry of the period of one year from the date of declaration of
results, rights accrued in favour of the wait listed candidates. To
substantiate his contention, the learned counsel referred to the judgment
of the Supreme Court in State of Jammu and Kashmir and Ors. Vs. Sat Pal,
(2013) 11 SCC 737. He also relied upon the judgment of the Division
Bench in Vijay Chhagan Gadave Vs. Collector, District Thane and Anr.
(Writ Petition No.9439 of 2019), decided on 3 rd October 2019, as well as
the judgment of the Gujarat High Court in Patel Rakeshkumar Dharamdas
Vs. State of Gujarat and Ors. (Special Civil Application No.1282 of 2011)
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decided on 6th May 2011. He thus submitted that as the Tribunal did not
commit any error, its order did not deserve to be interfered with.
7. We have heard the learned counsel for the parties at length and we
have also perused the material placed on record. Having given due
consideration to the rival submissions, we do not find that this is a fit case
warranting interference under Article 226 of the Constitution of India.
Under the advertisement published by the MPSC on 5 th July 2016, 450
posts of "Tax Assistant" with the Sales Tax Department were sought to be
filled in. After the final list of eligible candidates was published on 8 th
March 2017, 42 candidates failed to satisfy their eligibility for being
recruited on the said posts. After noting this fact, steps were taken by the
Sales Tax Department on 14 th December 2017, which was prior to the
expiry of one year from the date of declaration of results, to make a
requisition for sending the names of 42 candidates from the Wait list.
When the matter was being considered by the Finance Department of the
State Government, the period of one year came to an end. Shortly
thereafter, a request was made to the MPSC on 17 th March 2018 to make
available names of 42 candidates from the Wait list.
8. The aforesaid facts indicate that since the Goods and Service Tax
regime had set in, the Sales Tax Department which was the Appointing
Authority intended to fill in the 42 vacancies that form part of the 450
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vacancies that had been advertised. The Appointing Authority by sending
a requisition to the MPSC on 14 th December 2017 has made its intention
clear of wanting to fill in the vacant posts. In our view, it is the primary
concern of the Appointing Authority to take a call as to whether it intends
to fill in the vacant posts by operating the Wait list. Once this intention is
made clear that for justifiable reasons the Appointing Authority has taken
a call to fill in the vacant posts, the role of the MPSC as the
Recommendatory Authority would be secondary in nature. When it has
been demonstrated that the Appointing Authority initiated the process of
filling in the vacancies much prior to expiry of the life of the waiting list,
said aspect ought to be given due importance. Merely because a short
period beyond the life of the Wait list had passed due to exchange of
departmental communications, the Recommendatory Authority would not
be justified in declining the request for supplying the names of wait list
candidates. As held in Sat Pal (supra), what is of relevance is the decision
of the Appointing Authority to fill in the vacancy which in the present case
is much prior to the life of the Wait list.
9. It is material to note that in the present case there is no grievance
raised by any candidate who had participated in the recruitment process
that the Wait list was being unjustly operated. Similarly, the Appointing
Authority has expressed the need for filling in the vacancies for reasons
indicated in its communication much prior to expiry of the life of the Wait
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list. It is only in view of Rule 10(8)(b)of the Rules of Procedure that the
Recommendatory Authority has sought to object to the supply of names of
wait listed candidates. In our view, the Tribunal after noting all these
relevant aspects was justified in directing the MPSC to supply the names of
the wait list candidates. In these facts, the ratio of the decision relied upon
by the learned counsel for the MPSC cannot apply to the case in hand.
10. Another relevant aspect that is required to be noted is that
upholding the stand of the MPSC of declining to send the names of the
wait listed candidates in the present facts would only result in a fresh
process of recruitment being required to be undertaken; thus resulting in
expenditure of public funds. This would against larger public interest. The
Appointing Authority being the principal authority to consider whether
vacancies are required to be filled in or not and it having decided so by
taking a conscious decision prior to expiry of the Wait list, we do not find
in expedient to interfere in exercise of writ jurisdiction especially in the
absence of any grievance being raised either by the Appointing Authority
or by any candidate claiming to be deprived of any opportunity
whatsoever. As held in Ramniklal N. Bhutta and Anr. Vs. State of
Maharashtra and Ors. (1997) 1 SCC 134 , discretionary power under
Article 226 has to be exercised only in furtherance of interests of justice
and not merely on the making out of a legal point.
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11. For aforesaid reasons, we are not inclined to exercise discretion
under Article 226 of the Constitution of India and interfere with the
impugned judgment of the Maharashtra Administrative Tribunal. The writ
petition is therefore dismissed. Rule stands discharged with no order as to
costs.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
Digitally
SNEHA
SNEHA ABHAY 20-WP-2881-2021-Judgment.doc
ABHAY DIXIT
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DIXIT Date:
2024.08.21
17:20:13
+0530
