IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8624 OF 2006 Sanjay Baliram Dhamal .. Petitioner V/s The State of Maharashtra & Ors. .. Respondents WITH WITH WITH WRIT PETITIONS NO. 6520/06, 6780/06, 6808/06, 7218/06, 7281/06, 7285/06, 7286/06, 7318/06, 7325/06, 7873/06, 7874/06, 7895/06, 7912/06, 7918/06, 7982/06, 7983/06, 8050/06, 8624/06, 114/07, 226/07, 233/07, 234/07, 359/07, 472/07, 473/07, 474/07, 496/07, 621/07, 1096/07, 1098/07, 1100/07, 1819/07, 1851/07, 1853/07, 2110/07, 2130/07, 2138/07, 2140/07, 2160/07, 2216/07, 2501/07, 2551/07, 2605/07, 2608/07, 2610/07, 2746/07, 2847/07, 2882/07, 2883/07, 2888/07, 2901/07, 2947/07, 2968/07, 2971/07, 2973/07, 3367/07, 4292/07, 4508/07, 4889/07, 5072/07, 5082/07, 5423/07, 5612/07, 5617/07, 5647/07, 5653/07, 5655/07, 5746/07, 6266/07, 8037/06, 8625/06, 8639,06, 8640/06, 8641/06, 8642/06, 8643/06, 8645/06, 8646/06, 8648/06, 8651/06, 8652/06, 8653/06, 8675/06, 8676/06, 8677/06, 8678/06, 8679/06, 8680/06, 8684/06 to 8687/06. --------- Mr.G.S. Godbole with Mr.S.M. Sahastrabudhe, Mr.S.S. Kanetkar, Mr.Nitin Mulye and Mr.Satyajeet Mirajkar for the petitioners in Writ Petition Nos.8624/06, 226/07, 233/07, 234/07, 359/07, 472/07, 473/07, 474/07, 496/07, 2501/07, 2551/07, 2605/07, 2608/07, 2610/07, 2883/07, 2888/07, 2901/07, 2947/07, 2968/07, 2971/07, 2973/07, 4508/07, 5647/07, 8037/06, 8625/06, 8639,06, 8640/06, 8641/06, 8642/06, 8643/06, 8645/06, 8646/06m 8648/06, 8651/06, 8652/06, 8653/06m 8675/06, 8676/06, 8677/06, 8678/06, 8679/06, 8680/06, 8684/06 to 8687/06. Mr.G.K. Masand, Senior Advocate with Mr.S.R. Atre i/b Ms.Leena Patil for the petitioners in Writ Petition Nos.114/07, 1096/07, 1098/07, 6520/06. Mr.V.M. Tayade for the petitioners in Writ Petition No.621/07, 3367/07. - 2 - Mr.J.G. Reddy and Mr.S.B. Talekar for the petitioners in Writ Petition No.1100/07, 6780/06 to 6808/06. Mr.V.A. Gangal, Senior Advocate with Mr.Ashok Gade for the petitioners in W.P. Nos.1819/07, 1851/07, 1853/07, 2110/07, 2130/07, 2138/07, 2140/07, 2160/07, 5072/07, 5612/07, 5617/07. Mr.Rahul Kate for the petitioners in W.P. Nos.2216/07, 2882/07, 4889/07, 5423/07, 5653/07 and 5655/07. Mr.K.K. Malphatak with Mr.Manoj Bhatt for the petitioners in Writ Petition Nos.2746/07, 2847/07, 4292/07, 5082/07, 5746/07 and 6266/06. Mr.N.V. Bandiwadekar for the petitioners in W.P. Nos.7218/06, 7281/06, 7285/06, 7286/06, 7318/06, 7325/06, 7873/06, 7874/06, 7895/06, 7912/06 to 7918/06, 7982/06, 7983/06 and 8050/06. Mr.A.A. Kumbhakoni, Associate Advocate General with Mr.S.R. Nargolkar, A.G.P. for the respondent no.1 State. Mr.P.M. Pradhan for respondent no.2. CORAM : S.B. MHASE & D.G. KARNIK, JJ. DATE OF RESERVING THE JUDGMENT : 21ST AUGUST 2007 DATE OF PRONOUNCING THE JUDGMENT: 26TH OCTOBER 2007 JUDGMENT JUDGMENT JUDGMENT : (Per D.G. Karnik, J.) 1. Rule, returnable forthwith. By consent, called for hearing. 2. By these writ petitions, the petitioners - 3 - challenge the common judgment and order dated 5th May 2006 passed by the Maharashtra Administrative Tribunal (for short "the MAT") in Original Application No.1061 of 2004 along with other applications. Before the MAT, the petitioners had sought a declaration that the computation of vacancies by the respondent no.1 of 300 posts for Police Sub-Inspectors (for short "the PSI") to be filled by Limited Departmental Examination - 1992 was illegal and wrong and further declaration that there existed additional vacancies to the extent of 1571 posts. They further sought a direction to the respondent no.1 fill up the said vacancies to the extent of 1571 posts of PSI by appointing the petitioners and others who were not recommended for appointment to the posts of PSI by limited departmental examination by the respondent no.2 - the Maharashtra Public Service Commission (for short "the M.P.S.C."). Before us, an oral prayer was made that a mandamus or a direction in the nature of mandamus be issued to the respondent no.1 State to appoint the petitioners as PSI and send them for training to the Police Academy, Nasik prior to their appointment as PSI. 3. The petitioners are serving as Police Havaldars, Constables, Police Head Constables, etc. (hereinafter referred to as "police constables") who are eligible for - 4 - promotion to the posts of PSI. As per the Police Sub-Inspector (Recruitment) Rules, 1995 (for short "the Recruitment Rules") appointments in the posts of Sub-Inspectors of Police (PSI) are to be made from three sources, namely (i) by promotion of suitable persons on the basis of seniority subject to fitness from amongst the persons holding the posts of Havaldars and Assistant Police Sub-Inspectors in the Police Force who have completed not less than 5 years of continuous regular service (for short "by regular promotion"), or (ii) by selection of persons working in the Police Force on the basis of Limited Departmental Examination to be held by the MPSC (for short "limited departmental examination"), or (iii) by nomination on the basis of result of a competitive examination to be held by the MPSC. in accordance with the Rules made in that behalf from time to time (for short "direct recruits"). The appointments to the posts of PSI from the aforesaid three sources, viz. by promotion, limited departmental examination, and direct recruits are to be made in the ratio of 25:25:50. 4. It appears that in the year 2002, the respondent no.1 took a decision to fill up vacancies and to appoint 300 PSI by limited departmental examination from amongst the eligible persons working in the Police Force. - 5 - Accordingly, a notification was issued on 24th February 2003 by the respondent no.1 requesting MPSC to hold an examination and recommend the names of 300 candidates. The notification stated the written examination would be of 300 marks and the 1200 candidates according to the order of merit in the written examination (forming zone of consideration) would be called for physical examination which would be of 100 marks and oral and personality tests of 50 marks. The first 300 candidates according to order of merit prepared on the basis of aggregate marks would be recommended by the MPSC for appointment. Accordingly, the limited departmental examination was held by the MPSC in the year 2003. The petitioners and other candidates, who had secured a place in the first 1200 candidates according to the number of marks in the written examination, were called for physical examination and the oral and personality test. The names of the candidates were then arranged in the order of merit on the basis of the aggregate number of marks secured by each candidate and the MPSC recommended the names of the first 300 candidates for appointment as PSI. The 300 candidates, whose names were so recommended by the MPSC were thereafter sent for mandatory training to the Police Academy, Nasik and have been appointed as PSI. The petitioners are police constables who had appeared for the limited departmental - 6 - examination held by the MPSC and were within the first 1200 candidates in the order of merit in the written examination but who were outside the first 300 candidates in the order of merit on the basis of aggregate marks in written, physical and oral examinations. Consequently, the petitioners were not recommended for appointment as PSI by the MPSC though they had been called for physical test and oral interview after the written examination. Aggrieved by non-recommendation of their names by the MPSC for appointment as PSI, each of the petitioners approached the MAT by filing applications individually. By a common judgment and order dated 5th May 2005, all the applications were dismissed. That order is challenged in these petitions. 5. It was the case of the petitioners before the MAT that the computation of vacancies for appointment to the posts of PSI by selection on the basis of the limited departmental examination was erroneous. The same stand is repeated in these petitions. The petitioners contended that though the vacancies were much more (even as per the chart annexed to the affidavit filed in this Court on behalf of the respondent no.1), the respondent no.1 erred in sending requisition to the MPSC to recommend names of only 300 - 7 - persons. As per the affidavit filed on behalf of the respondent no.1, the total number of sanctioned posts of PSI throughout the State of Maharashtra at the relevant time were 6817. As per Rule 3 of the Recruitment Rules, 50% of the posts were to be filled in by nomination, 25% were to be filled in by promotion and 25% were to be filled in by selection from amongst the police constables on the basis of limited departmental examination. Therefore, total number of posts to be filled in from the police constables by selection through limited departmental examination were 1704. The actual strength of PSIs appointed by limited departmental examination was 951 as on 30th June 2003 and 950 as on 30th December 2003. Therefore, even as per the affidavit of the respondent no.1, 753 posts of PSI were available to be filled in by limited departmental examination in the year 2003. Since there were at least 753 posts of PSI were available to be filled in through limited departmental examination, the decision of the respondent no.1 to send a requisition to MPSC to conduct examination for filling up only 300 posts was erroneous and was required to be set aside. The decision of the respondent no.1 to appoint only 300 persons being based on wrong computation, is required to be set aside. The petitioners have accordingly prayed for issuance of a direction to the MPSC to recommend the - 8 - names of candidates from 301 onwards of the merit list for being appointed as PSI to fill up all vacancies in the posts of PSI to be appointed by selection on the basis of limited departmental examination. 6. Learned counsel for the petitioners submitted that though the decision of the respondent no.1 to fill up posts of 300 PSI on the basis of limited departmental examination was administrative in nature, it was subject to judicial review, because the decision was based on wrong assumption that only 300 posts of PSI were available. He submitted that the actual text of the decision taken by the respondent no.1 to fill up only 300 posts of PSI by limited departmental examination and the relevant files on which the decision was noted were not produced by the respondent no.1 before the MAT nor before this Court. He therefore called upon us to pass an order directing production in the civil application made in that behalf by the petitioners. He submitted that if the file is directed to be produced, it would show that the decision taken by the government to fill up only 300 posts of PSI by selection on the basis of limited departmental examination was based on erroneous premises and on erroneous computation of the vacancies. If the vacancies were properly computed, the respondent no.1 would not have taken the decision to fill up only - 9 - 300 posts of PSI. He therefore submitted that not only the decision was erroneous and illegal but the decision making process itself was flawed as it was based on erroneous assumptions. 7. Counsel for the petitioners referred to and relied upon various decisions of the Supreme Court, namely (i) Nilima Sangla v. State of Haryana, reported in (1986) 4 SCC 268, (ii) Puranjit Singh v. Union Territory of Chandigarh, reported in AIR 1994 SC 2737, (iii) Sandeep Singh v. State of Haryana, reported in (2002) 10 SCC 549, (iv) Food Corporation of India v. Bhanu Lod & Ors., reported in (2005) 3 SCC 618, (v) Mohinder Singh Gill v. Chief Election Commissioner, reported in AIR 1978 SC 851, (vi) M/s Hochtief Gammon v. State of Orissa, reported in (1975) 2 SCC 649, (vii) Reliance Airport Developers Pvt. Ltd. v. Airport Authority of India & Ors., reported in JT 2006 (10) SC 424, (viii) S.N. Mukherjee v. Union of India, reported in (1990) 4 SCC 594, (ix) S.A. Ramanathan v. Union of India & Ors., reported in (2001) 2 SCC 118, (x) Virender S. Hooda & Ors. v. State of Harayana, reported in (1999) 3 SCC 696, (xi) Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai & Ors., reported in (2005) 7 SCC 627. - 10 - 8. Per contra, Mr.Kumbhakoni, learned Associate Advocate General appearing for the respondent no.1 State of Maharashtra, submitted that the government took a policy decision to fill up 300 posts of PSI out of the 25% quota of the limited departmental examination after examining the proposal received from the Director General of Police and taking into consideration various other factors mentioned in the affidavit filed before the MAT. Accordingly, a requisition for recommending names of 300 police constables was sent to MPSC in the year 2002. The MPSC issued an advertisement inviting applications to fill up only 300 posts of PSI by limited departmental examination from amongst the police constables. Written test was held by the MPSC on 29th June 2003 and results of the written test were declared on 6th March 2004. The first 1200 candidates in the order of merit of the marks obtained in the written examination were called for physical examination of 100 marks. After the physical examination, interviews were conducted from 11th May to 16th June 2004 and results were declared on 22nd July 2004 in the order of merit of aggregate marks. MPSC sent recommendation to the government of 300 candidates as per the requisition of the government. All the 300 candidates recommended by the MPSC for appointment of police sub-inspectors by nomination by limited departmental examination of the - 11 - persons working in the police force were sent for training to the Police Training Institute at Nasik and have been appointed as PSI. Mr.Kumbhakoni submitted that it is the prerogative of the government to decide how many vacancies should be filled in. The government had taken the decision to fill in only 300 vacancies by limited departmental examination by taking into consideration all relevant factors. He invited our attention to paragraph 5.5 of the affidavit in reply filed on behalf of the government before the MAT Therein, it was stated that the quota for appointment of PSI was only 752, out of which 406 vacancies were already filled up as directed by the High Court by its order dated 24th April 2002 passed in Writ Petition No.4625 of 2001. There were, thus, vacancies of only 347 posts of PSI to be filled up by limited departmental examination and the government took the decision of filling up 300 vacancies taking into consideration all the relevant factors including intake capacity of the Police Training Academy at Nasik and the need of filling up the vacancies in the cadre of PSI from other streams also, namely by nomination by direct examination by the MPSC and by regular departmental promotions. He submitted that the decision to fill up 300 posts was an administrative decision which did not suffer from any illegality, much less Wednesbury unreasonableness; - 12 - therefore, the decision was not open for judicial scrutiny. It was emphatically submitted that the government was not obliged to fill up all vacancies that exist in a cadre, but it may choose to fill up only some of the posts leaving others unfilled, taking into consideration various circumstances including the financial constraints of the State. Even if a candidate is successful and selected and his name is placed in the select list, he has no right for appointment to the post and the State even after preparing the select list is entitled to cancel it and/or not to appoint the person whose name appears in the select list. No mandamus can be issued directing the State to issue an appointment letter even if the name of the candidate appears in the select list and no candidate has right of appointment until the appointment is actually made. In support of his submissions, learned Associate Advocate General relied upon the decisions of the Supreme Court in State of Haryana v. Subhash Chander Marwah, reported in (1974) 3 SCC 220, Jammu & Kashmir Public Service Commission v. Dr. Narinder Mohan, reported in (1994) 2 SCC 630, T.N. Administrative Services Officers’ Association v. Union of India, reported in (2000) 5 SCC 728, Jatinder Kumar v. State of Punjab, reported in (1985) 1 SCC 128, Bihar State Electricity Board v. Suresh Prasad, reported in (2004) 2 SCC 685, State of - 13 - Haryana v. Naresh Kumar Bali, reported in (1994) 4 SCC 448, and Virender Singh Hooda v. State of Haryana, reported in (2004) 12 SCC 588. 9. Though a number of decisions were cited, many of them are on the same point and some of them do not appear to us to be relevant to the points for consideration before us. We would therefore refer only to those decisions which appear to us to be relevant and omit the repetitive decisions covering the same point. 10. In Nilima Sangla v. State of Haryana, reported Nilima Sangla v. State of Haryana, reported Nilima Sangla v. State of Haryana, reported in (1986) 4 SCC 268 in (1986) 4 SCC 268 in (1986) 4 SCC 268, the Supreme Court held that it was the duty of Public Service Commission to prepare select list of all successful candidates and to communicate the same to the government and that the Public Service Commission erred in withholding the names of several successful candidates. After referring to its earlier decision in the case of State of Haryana v. Subhash State of Haryana v. Subhash State of Haryana v. Subhash Chander Marwah, reported in (1974) 3 SCC 220 Chander Marwah, reported in (1974) 3 SCC 220 Chander Marwah, reported in (1974) 3 SCC 220, the Supreme Court held that the selection cannot be arbitrarily restricted to a few candidates, notwithstanding the number of vacancies and availability of qualified candidates. There must be conscious application of mind by the government and the High Court (which was to appoint judicial officers) before the - 14 - number of persons selected for appointment was restricted. In our view, the decision of the Supreme Court in State of Haryana v. Subhash Chander (supra) is clearly distinguishable as it was based on an interpretation of Rule 8 of the applicable Rules. There is no such rule similar to the Rule 8 in that case in the present case. The advertisement of the MPSC issued in the present case stipulated minimum number of marks to be obtained in the written and physical examinations and minimum number of marks to be obtained in the aggregate being considered by it. It did not mean that all the candidates, who obtained the minimum number of marks, were to be recommended for the appointment. The minimum prescribed marks were only the cut of marks below which the candidate was not eligible for being considered for appointment. If more than 300 candidates secured higher than the minimum prescribed marks, then recommendation was to be restricted to the first 300 candidates. The zone of consideration was four times the number of candidates subject to the condition they had obtained the minimum number of marks in the written and physical examinations and in the aggregate. In LIC LIC LIC of India v. E. Pravin Kumar, reported in 1990 Lab. of India v. E. Pravin Kumar, reported in 1990 Lab. of India v. E. Pravin Kumar, reported in 1990 Lab. I.C. 1422 I.C. 1422 I.C. 1422, the Supreme Court has clearly laid down that when a large number of candidates become eligible for selection to a few posts, it is permissible to have a - 15 - zone of consideration which is based on some rational criterion. A demarcation fixed with reference to marks obtained at a public examination and then selecting the more merited amongst them, cannot be said to be based on any irrational basis. In the present case, there were only 300 posts to be filled up as per the government decision. The zone of consideration was restricted to four times the posts to be filled in and accordingly the candidates who stood within that zone of first 1200 candidates in order of merit in the written examination were called for physical test and then to undergo oral interview. This does not mean that all 1200 candidates who were called for physical test stood selected. They were only included in the zone of consideration. but it was a method of fixing a zone of consideration. 11. Counsel appearing on behalf of the petitioners, took exception to the decision of the government to send requisition to MPSC for only 300 candidates when, according to the counsel, the total number of vacancies in the post of PSI to be filled up by limited departmental examination were much more and, in any event, were not less than 1592. Counsel, therefore, submitted that the decision of the government to call for recommendation of only 300 names is required to be quashed as illegal and irrational. Counsel half - 16 - heartedly submitted that the number of PSIs in the State of Maharashtra was inadequate and filling up of all the vacancies in the cadre of PSI was necessary for maintenance of law and order which is constitutional obligation of the State. The State must, therefore, appoint sufficient number of PSI and not to keep any vacancies in their cadre. We are not inclined to consider the larger issue of duty of the State to maintain law and order and to appoint sufficient number of police officers for that purpose. There are no sufficient pleadings for considering that issue. The main grievance of the petitioners in these petitions is that they have not been selected and have not been appointed though, according to them, they have passed the limited departmental examination by securing more than the minimum number of marks in the written examination, physical examination and in the aggregate as fixed by the MPSC. The petitioners have not approached this Court in the public interest requiring the State to perform its functions and duties. They are pursuing their private interest of securing appointment to the posts of PSI. In the circumstances, we decline to go into the larger issue of constitutional obligation of the State to maintain law and order and the adequacy or otherwise of the existing cadre of PSI for fulfilling that obligation and restrict our consideration to - 17 - whether the petitioners have a right to be appointed. It may also be noted that the advertisement issued by the MPSC on 24th February 2003 clearly stated that the limited departmental examination was to be held for appointment of PSI from amongst the police personnel to the extent of 300 posts. Applications were accordingly invited from the eligible police personnel to appear for the limited departmental examination. The petitioners applied in pursuance of the said advertisement and appeared for the examination. Having found that their names do not appear in the order of merit in the first 300 candidates, they are now making a grievance that advertisement ought to have been for 1592 posts and/or posts more than 300 and the government was not justified in restricting the advertisement for 300 posts. The petitioners took their chance and appeared for the limited departmental examination and were unsuccessful to find place in the first 300 candidates in the order of merit. Having taken part in the selection process, the petitioners cannot take exception to the advertisement and contend that the advertisement should have been for number of posts. Even otherwise, we are of the view that the decision of the government to fill up 300 posts only out of the posts of PSI by limited departmental examination being an administrative decision not suffering from any infirmity cannot be - 18 - subject to judicial scrutiny for the reasons indicated below. 12. In Shankarsan Dash v. Union of India, reported Shankarsan Dash v. Union of India, reported Shankarsan Dash v. Union of India, reported in AIR 1991 SC 1612 in AIR 1991 SC 1612 in AIR 1991 SC 1612, a Constitution Bench of the Supreme Court has held that unless relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, that does not mean that the State has a licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for