Bombay High Court
Vishnu Gangadhar Giri vs Dattatray Maruti Bansude And Ors on 5 February, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:5766-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.158 OF 2024
IN
WRIT PETITION NO.16025 OF 2022
Dattatray Maruti Bansude and Ors. .. Applicants-Petitioners
Vs.
The State of Maharashtra,
Through the Chief Secretary and Ors. .. Respondents
ALONG WITH
INTERIM APPLICATION NO.929 OF 2024
IN
INTERIM APPLICATION NO.158 OF 2024
IN
WRIT PETITION NO.16025 OF 2022
Vishnu Gangadhar Giri .. Applicant
In the matter between
Dattatray Maruti Bansude and Ors. .. Petitioners
Vs.
The State of Maharashtra,
Through the Chief Secretary and Ors. .. Respondents
Mr. R.R. Shetty, with Mr. Sandeep Dere, Ms. Aarti Patil-Dere and Ms.
Sonali Pawar, for the Applicants in IA/158/2024 in WP/16025/2022 and
for the Petitioners in WP/16025/2022.
Mr. S.C. Naidu, with Mr. Mangal Bhandari, Mr. Mangesh Deshmukh and
Mr. Shailesh A. Sawant, for the Applicant in IA/929/2024 in IA/158/2024
in WP/16025/2022.
Mr. Akhilesh Dubey, with Mr. Sushant Walimbe, Ms. Priyanka K. and Mr.
Hrutik Chavan, i/by Ms. Aarti Nishad, for Respondent Nos.7 to 11 in
IA/158/2024 in WP/16025/2022.
Mr. P.P. Kakade, Government Pleader, with Mr. B.V. Samant, Additional
Government Pleader and Mr. A.R. Metkari, Assistant Government Pleader,
for the Respondent-State of Maharashtra.
CORAM : A.S. CHANDURKAR &
JITENDRA JAIN, JJ
DATE : 5TH FEBRUARY, 2024.
1-IA-158-2024 & IA-929-2024.doc
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P.C. :
1. Interim Application No.158 of 2024 has been preferred by the
petitioners seeking a direction that respondent no.2 - Secretary, Home
Department, Mantralaya be directed to verify and indicate as to whether
the petitioners are more meritorious than the last selected candidate as in
Writ Petition No.13227 of 2018 and further if the petitioners are found to
be similarly placed, their names be included in the training session for the
post of "Police Sub Inspector".
2. The basis for preferring this interim application is that according to
the petitioners, they are similarly situated as the candidates who pursuant
to the order dated 25th September 2023 passed in Writ Petition No.13227
of 2018 were directed to be sent for undergoing training subject to the
rider that the said order would not create any right or equity in favour of
the said petitioners. The petitioners contend that 828 vacancies had been
advertised on 27th June 2016 on the basis of which they participated in the
Limited Departmental Competitive Examination - 2016. In the results that
were declared on 12th December 2017, 642 candidates from the Open
Category who secured 253 marks and above as well as 186 candidates
from the Reserved Category who secured 230 marks and above came to be
selected. Since the Government Resolution dated 25 th May 2004 providing
for reservation in promotion came to be set aside by this Court in the case
of State of Maharashtra, through the Chief Secretary, Government of
1-IA-158-2024 & IA-929-2024.doc
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Maharashtra & Anr. Vs. Shri Vijay Ghogre & Ors., along with connected
matters, (Writ Petition No.2797 of 2015, along with connected petitions,
decided on 4th August 2017), the 186 candidates from the Reserved
Category were not entitled to such promotion and, therefore, they could
not have been sent for training. By Government Resolution dated 22 nd
April 2019, about 154 candidates having more than 230 marks but from
the Open Category were sent for training. 32 of the said 186 candidates
being meritorious were permitted to continue with the training. The
Government Resolution dated 22nd April 2019 was the subject matter of
challenge in various Original Applications before the Maharashtra
Administrative Tribunal. By the judgment dated 4 th March 2022, the
Maharashtra Administrative Tribunal set aside the Government Resolution
dated 22nd April 2019, by which 636 candidates who had secured 230 and
more marks came to be accommodated. That decision of the Tribunal is
the subject matter of challenge in Writ Petition No.16025 of 2022.
3. The petitioners contend that in Writ Petition No.13227 of 2018
(Santosh Bapurao Rathod & Ors. Vs. The State of Maharashtra & Ors.) , a
similar challenge is raised and by an interim order dated 25 th September
2023, a direction was issued to prepare a list of candidates who had
secured marks between 245 to 249 out of 400 and then to send such
candidates for training. By relying upon the decision in State of Uttar
Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors., (2015) 1 SCC
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347, it is submitted that the present petitioners are similarly situated and
they too be sent for training after verifying their merit viz-a-viz the last
selected candidate who has benefited from the order dated 25 th September
2023 passed in Writ Petition No.13227 of 2018. The petitioners state that
they do not intend to claim any equity and this direction be issued subject
to outcome of the writ petition.
4. On the other hand, according to the respondents as well as the
applicant in Interim Application No.929 of 2024, the petitioners are not
similarly situated and hence they are not entitled for such interim
direction. It is submitted that undertaking such exercise would result in
the number of candidates being sent for training to be in excess of the
advertised vacancies. Such course was not permissible. The applicants in
Interim Application No.16320 of 2023 in Writ Petition No.13227 of 2018
contend that the order dated 25th September 2023 passed in Writ Petition
No.13227 of 2018 deserves to be vacated in view of the fact that while the
advertisement dated 27th June 2016 was only for 828 posts, a total of 982
candidates had been selected and sent for training, which thus exceeded
the advertised vacancies. Reference was made to the decisions in Arup Das
and Ors. Vs. State of Assam and Ors., (2012) 5 SCC 559; R. Muthukumar
and Ors. Vs. Chairman and Managing Director, TANGEDCO and Ors., 2022
SCC OnLine SC 151; and Pankjeshwar Sharma and Ors. Vs. State of
Jammu and Kashmir and Ors., (2021) 2 SCC 188 in that regard.
1-IA-158-2024 & IA-929-2024.doc
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5. We have heard the learned counsel for the parties and we have
perused the documents on record. The grievance sought to be raised by
the petitioners in Interim Application No.158 of 2024 is that since the
petitioners are similarly situated in terms of merit with the candidates who
have got the benefit of the interim order dated 25 th September 2023
passed in Writ Petition No.13227 of 2018, a direction to ascertain as to
whether the petitioners are more meritorious than the last selected
candidate who has benefited from the interim order dated 25 th September
2023 deserves to be issued. On 16th January 2024 and 23rd January 2024,
time was granted to the learned Additional Government Pleader to file
affidavit-in-reply but the learned Additional Government Pleader was
unable to place the affidavit-in-reply on record. Further time is again
being sought today.
6. We find that the direction sought by the petitioners of ascertaining
whether they are more meritorious than the last selected candidate who
has benefited by the order dated 25th September 2023 passed in Writ
Petition No.13227 of 2018 can be issued subject to further consideration
of the matter. Presently, the petitioners by filing this Interim Application
No.158 of 2024 merely seek an exercise to be undertaken for determining
whether they too are entitled for the benefit of the order dated 25 th
September 2023. Since the entire record is available with the respondent
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no.2, this factual aspect can be ascertained by filing an affidavit. The
further course to be adopted after this factual aspect is ascertained and
placed on record can be considered thereafter. The question as to whether
the petitioners are entitled to be sent for such training is also a matter to
be thereafter adverted to in the light of the contention raised by the
respondents that the candidates sent for training would exceed the
number of vacancies advertised. For the present, the factual aspect with
regard to the inter se merit can be examined.
7. For aforesaid reasons, it is directed that the respondent no.2 shall
within a period of ten days file an affidavit indicating whether the
petitioners are more meritorious than the last selected candidate in Writ
Petition No.13227 of 2018 pursuant to the order dated 25 th September
2023. Dependent upon ascertainment of this aspect, the further claim of
the petitioners for including their names in the list of candidates to be sent
for training shall be considered in the writ petition. The contentions of the
parties in that regard are kept open.
8. Interim Application No.158 of 2024 and Interim Application No.929
of 2024 are disposed of in aforesaid terms.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J. ]
1-IA-158-2024 & IA-929-2024.doc
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