Chetan Gulabrao Pawar vs State Of Maharashtra And Ors
2024 Latest Caselaw 26122 Bom

Bombay High Court

Chetan Gulabrao Pawar vs State Of Maharashtra And Ors on 3 October, 2024

Author: A.S. Chandurkar

Bench: A.S. Chandurkar

2024:BHC-AS:39147-DB



                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION


                                     WRIT PETITION NO.7369 OF 2023
            Chetan Gulabrao Pawar and Ors.                                   .. Petitioners
                       Versus
            The Secretary to the Hon'ble Governor
            of Maharashtra and Ors.                                          .. Respondents


            Mr. Mihir Desai, Senior Advocate, with Mr. Ashish S. Gaikwad, Ms. Savita
            Gaikwad and Mr. Anirudh R. Rote, Advocates for the Petitioners.
            Mr. Anil Sakhare, Senior Advocate, with Mr. N.C. Walimbe, Additional
            Government Pleader and Smt. P.J. Gavhane, Assistant Government Pleader
            for the Respondent-State of Maharashtra.
            Mr. Ashutosh Kulkarni with Mr. Siddharth Shitole, Advocates for the
            Respondent-MPSC.
            Mr. Balasaheb S. Yewale, Advocate for Respondent No.5.
            Mr. Milan Topkar with Ms. Pavitra Manesh and Ms. Kadambari Patil,
            Advocates for Respondent No.6.
            Mr. Anoop Patil with Mr. Mahesh Navandar and Mr. Shashank Shubham,
            Advocates for Respondent No.7-University.
            Mr. Abhishek Karnik, i/by Ms. Leena Patil, Advocates for Respondent No.8.
            Mr. Sameer K. Sawant, Advocate for Respondent No.9.
            Mr. A.A. Kumbhakoni, Senior Advocate, with Mr. Ketan Joshi and Mr. V.V.
            Mohite, Advocates for Respondent Nos.10 to 95.


                       CORAM : A.S. CHANDURKAR & RAJESH S. PATIL, JJ
                 The date on which the arguments were heard : 26TH SEPTEMBER, 2024.

                 The date on which the Judgment is pronounced : 03RD OCTOBER, 2024.



            JUDGMENT :

[ Per A.S. Chandurkar, J. ]

1. This writ petition, under Article 226 of the Constitution of India, has

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been preferred by fifty-three petitioners seeking to raise a challenge to the

advertisements dated 18th February 2022 and 30th September 2022 issued

by the Maharashtra Public Service Commission - "MPSC" for various posts

under the Maharashtra Agricultural Services.

2. At the outset, the learned counsel for the respondents have raised

an objection to the maintainability of the writ petition on the ground that

the advertisements issued by the MPSC seek to undertake recruitment

with the State Government. In view of the provisions of Section 15 of the

Administrative Tribunals Act, 1985 - "Act of 1985", an alternate efficacious

remedy of approaching the Maharashtra Administrative Tribunal is

available for being invoked. Without approaching the Tribunal, the

petitioners have directly approached this Court and hence the writ petition

as filed is not maintainable.

3. Mr. A.A. Kumbhakoni, the learned Senior Advocate for respondent

nos.10 to 95 - candidates duly selected, has relied upon the order dated

4th March 2022 passed in Writ Petition No.2270 of 2021 (Gaurav Ganesh

Das Daga & Ors. Vs. Maharashtra Public Service Commission & Anr.), with

connected writ petitions, to submit that entertaining the writ petition on

merits would be an exercise in nullity on the ground that the statutory

remedy has not been invoked. Reliance is also placed on the judgment

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dated 27th September 2023 in Writ Petition No.3854 of 2023 (Samajik

Vikas Prabhodini Vs. State of Maharashtra & Anr.), with connected writ

petitions, decided at the Principal Seat. Further, relying upon the

judgment in Writ Petition No.12297 of 2021 (M/s. Mestra A.G.

Switzerland Vs. The State of Maharashtra & Ors.) decided on 16th February

2022 by Aurangabad Bench, it was urged that this Court may not exercise

any discretion under Article 226 of the Constitution of India.

4. Mr. Mihir Desai, the learned Senior Advocate for the petitioners

does not dispute the fact that the remedy of approaching the Tribunal is

available to the petitioners. He however submits that since Writ Petition

No.9878 of 2023 (Varsha Prakash Mandale, Student Vs. State of

Maharashtra, through General Administration Department and Ors.)

raising a challenge to the advertisement dated 18 th February 2022 arising

from the order passed by the Tribunal is being considered, this writ

petition also deserves to be entertained. According to him, the Tribunal

having already examined the challenge and thereafter having rejected the

same, no useful purpose would be served by approaching it. In such

situation, it was submitted that the writ petition be entertained on merits.

5. Having considered the preliminary objection as raised by the

respondents, we are of the view that no exceptional case has been made

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out by the petitioners to permit them to by-pass the statutory remedy

available under the provisions of Section 14 of the Act of 1985 and to

entertain the writ petition. A similar contention as raised by the

petitioners of a view already taken by the Tribunal as a reason for not

approaching it was considered by the Coordinate Bench at Aurangabad in

M/s. Mestra A.G. Switzerland (supra) , in particular paragraph 22 thereof,

as under :-

"22. We do not find any law having been declared in the

aforesaid three decisions that whenever a situation of

like nature arises i.e. a dispute having been decided

either by a High Court or by a Tribunal/Appellate

Authority taking a particular view of the matter and

such decision is binding on the lower authority in the

hierarchy, in cases which are similar in nature, the writ

jurisdiction of the High Court or the jurisdiction of the

Supreme Court under Article 136 of the Constitution

could be invoked by the aggrieved party straightaway

without exhausting the procedure of redressal of

grievances provided by the statute and such

jurisdiction must invariably be exercised. The courts

have not laid down such a proposition of law for

reasons, which need not fall for discussion here;

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suffice it to note, in all the cited decisions, the

Supreme Court had exercised its discretion having

regard to the demands of each particular case. After

all, the remedy that Article 226 offers is discretionary

too although there can be no gainsaying that the

discretion has to be exercised on sound principles of

law and not whimsically."

6. The issue of maintainability and entertainability of a writ petition

has been considered by the Supreme Court in M/s. Godrej Sara Lee Ltd.

Vs. The Excise and Taxation Officer-cum-Assessing Authority and Ors.,

2023 INSC 92. It has been held that even if a writ petition under Article

226 of the Constitution of India is maintainable, the Court can refuse to

entertain the same for various reasons and not exercise discretion.

Paragraph 4 thereof being relevant is reproduced hereunder :-

"4. ............ In a long line of decisions, this Court has

made it clear that availability of an alternative remedy

does not operate as an absolute bar to the

"maintainability" of a writ petition and that the rule,

which requires a party to pursue the alternative

remedy provided by a statute, is a rule of policy,

convenience and discretion rather than a rule of law.

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Though elementary, it needs to be restated that

"entertainability" and "maintainability" of a writ

petition are distinct concepts. The fine but real

distinction between the two ought not to be lost sight

of. The objection as to "maintainability" goes to the

root of the matter and if such objection were found to

be of substance, the courts would be rendered

incapable of even receiving the lis for adjudication. On

the other hand, the question of "entertainability" is

entirely within the realm of discretion of the high

courts, writ remedy being discretionary. A writ petition

despite being maintainable may not be entertained by

a high court for very many reasons or relief could even

be refused to the petitioner, despite setting up a sound

legal point, if grant of the claimed relief would not

further public interest. ..........."

7. Hence, though the writ petition is maintainable, we are not inclined

to entertain the writ petition firstly on the ground that the petitioners have

failed to invoke the statutory remedy of approaching the Tribunal at the

first instance. Secondly, the delay in raising a challenge to the order dated

11th February 2022 as well as advertisements dated 18 th February 2022

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and 30th September 2022 has not been satisfactorily explained in the writ

which has been filed only on 3 rd May 2023. In the interregnum, the

process of recruitment has progressed and the Select Lists have been

published. There is no exceptional ground to invoke extra-ordinary

jurisdiction and in these facts, the petitioners ought to approach the

Tribunal of first instance.

8. In that view of the matter, the writ petition is dismissed as not

entertained. Needless to state that if the petitioners seek to invoke the

jurisdiction of the Tribunal, the points raised in this writ petition can be

raised in such proceedings since we have not considered the same on

merits in this writ petition. Ordered accordingly.

                           [ RAJESH S. PATIL, J. ]              [ A.S. CHANDURKAR, J. ]




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