Case: VISHAL ASHOK THORAT Vs. RAJESH SHRIRAMBAPU FATE

2. We may first notice the facts and events leading to filing of these appeals.3. In transport Department of the State of Maharashtra there were posts of Assistant Inspector of Motor Vehicles, Group-C. Under proviso to Article 309, Governor of Maharashtra by notification dated 23.12.2016 framed the Rules namely?Assistant Inspector of Motor Vehicles, Group-C in Motor Vehicles Department (Recruitment) Rules 2016?(hereinafter referred to as ?Rules, 2016?).4. The State government sent a requisition on 29.12.2016 to Maharashtra Public Service Commission (hereinafter referred to as MPSC) for conducting examinations. MPSC issued advertisement no. 2 of 2017 dated 30.01.2017 inviting online applications for 188 posts of Assistant Motor Vehicles Inspector Group-C for which Preliminary Examination was to take place on 30.04.2017 and Main Examination of eligible candidate was likely to be held on 06.08.2017. The State government had sent further requisition for additional 670 posts. MPSC issued a declaration notifying 858 posts which subsequently reduced to 833 posts. Relevant examination was conducted on 30.04.2017 in which more than 69,000 candidates participated.5. On 30.06.2017, result of preliminary exam was declared in which 9,870 candidates were declared qualified for the Mains examination. On 01.07.2017, MPSC issued advertisement no.48 of 2017 for Main examination which was conducted on 06.08.2017. Writ Petition No.7329 of 2017 was filed by respondent No.1 challenging only the Rules, 2016 which petition was disposed of by the High Court on 13.11.2017 granting leave to writ petitioner to make appropriate representation to the State Government. The State Government was directed to take suitable decision in the next two months. The State Government vide order dated 01.02.2018 rejected the representation of respondent No.1. The MPSC declared the final result of examination publishing a select list of 832 candidates on 31.03.2018. On 07.05.2018, MPSC recommended 832 candidates to the State Government for appointment State Government on 15.05.2018 directed Transport Commissioner to take further steps for 832 selected candidates. On 05.06.2018, Transport Commissioner asked selected candidates to come for verification of documents.6. The respondent No.1 filed a second Writ Petition No. 1270 of 2018 challenging only Rules, 2016 in which writ petition, petitioner filed an amendment application praying for quashing of the advertisements dated 30.01.2017 and 01.07.2017 as well as list of selected candidates which amendment application was allowed by the High Court on 13.04.2018. The High Court on 12.06.2018 had passed an interim order for maintaining status quo.7. Apart from writ petition filed by the respondent no.1 challenging the Rules and subsequently the advertisement, there had been several challenges before the Maharashtra Administrative Tribunal as well as the High Court pertaining to 2016 Rules and the Advertisement no. 2 of 2017 and 48 of 2017.8. Before the Maharashtra Administrative Tribunal Rules, 2016 were challenged by Manoj Chavahan by filing O.A. No.615 of 2017, which was dismissed on 06.12.2017 repelling the challenge to the Rules. Several other O.As. filed before Maharashtra State Administrative Tribunal were also dismissed on 06.12.2017. One O.A. No. 481 of 2018 filed by Ajitpalsingh Nirmalsingh Khalsa was also dismissed on 06.12.2017 against which Writ Petition No.8179 of 2017 filed by Ajitpalsingh Nirmalsingh Khalsa which was also dismissed by the High Court on 18.01.2018 and SLP No. 3452 of 2018 challenging the judgment dated 18.01.2018 of the High Court was dismissed by this Court on 09.02.2018. Writ Petition No.7685 of 2017, Dinesh Kisanrao Sawarkar versus State of Maharashtra was also dismissed by the High Court on 17.01.2018 against which SLP No.13258 of 2018 was dismissed on 04.05.2018. In Writ Petition filed by the respondent No.1, i.e., 1270 of 2018 both State Government as well as MPSC filed counter affidavits. Respondent Nos.4 to 22 in Civil Appeal of Vishal Ashok Thorat had filed application for impleadment in Writ Petition No.1270 of 2018 along with the counter affidavit, which applications were allowed by the High Court. The High Court vide its judgment dated 28.09.2018 partly allowed the writ petition. The High Court although held that writ petitioner, i.e., respondent No.1 cannot be permitted to challenge the advertisements dated 30.01.2017 and 01.07.2017 but the High Court set aside the Proviso at the end of Rule 3(iii) and Rule 3(iv) and also Rule 4 of Rules, 2016. The High Court ultimately directed the respondent to choose and select only those persons, who had participated in the selection process and who fulfilled the requirement of practical experiences and driving licences as per the qualifications prescribed by the Central Government, i.e., as per substantive part of Rule 3(iii) and Rule 3(iv) of Rules, 2016.9. Civil Appeal No.5444 of 2019 has been filed by Vishal Ashok Thorat and 545 other candidates, whose names are included in the select list of 832 candidates. These selected candidates were not made parties to the Writ Petition No.1270 of 2018 before the High Court.10. Civil Appeal No.5446 of 2019 has been filed by the State of Maharashtra aggrieved against the judgment of the High Court dated 28.09.2018. In the appeal, several grounds have been taken by the State of Maharashtra challenging the judgment dated 28.09.2018.11. Civil Appeal No.5445 of 2019, Abhijit Appasaheb Vasagade and 11 other candidates are appellants, who were included in the select list of 832 candidates and who got themselves impleaded in W.P. No.1270 of 2018 before the High Court. These appellants also aggrieved by the judgment of the High Court dated 28.09.2018 have filed the appeal challenging judgment on various grounds.

Reasoning:
32. The direction in paragraph 51 of the impugned judgment clearly directed the select list to be re-drawn by including only those candidates who fulfill the requirements of practical experience and driving licence as prescribed by the Central Government i.e. as substantive part of Rule 3(iii) and Rule 3(iv) of Rules, 2016, which the High Court could not do in view of its finding in paragraph 48 of the judgment. When a person is not permitted to challenge the advertisements and process of recruitment, the select list which is outcome of such recruitment process cannot be interfered at the instance of such person. The High Court, thus, clearly erred in issuing direction in paragraph 51 to modify the select list dated 31.03.2018.33. One more submission raised by the learned counsel for the appellant in civil appeal filed by Vishal Ashok Thorat needs to be noticed. The submission of the appellant is that respondent No.1 in his Writ Petition No.1270 of 2018 did not implead any of the selected candidates out of the list of 832. No selected candidate having been impleaded by respondent No.1, the High Court erred in issuing direction to modify and review the select list. The direction of the High Court in paragraph 51 is clearly against the interest of the appellants, who as per direction shall go out of the select list, the select list having been published on 31.03.2018, i.e., much before the date when respondent No.1 filed application for amendment in the writ petition for challenging the advertisement Nos.2 of 2017 and 48 of 2017, he ought to have impleaded the selected candidates whose names were already published by the MPSC. Respondent No.1 without bringing the selected candidates on record could not have obtained any order adverse to the selected candidates.This Court in Public Service Commission, Uttaranchal vs. Mamta Bisht and others, (2010) 12 SCC 204 , laid down that writ petition could not have been entertained against the selected candidate when he has not been a party in the writ petition. In the above case, Public Service Commission invited applications for the posts of Civil Judge (Junior Division. The respondent No.1 was not included in the select list. The respondent No.1 filed a writ petition claiming that she ought to have been selected in the reserved category being a woman of Uttaranchal. The claim of respondent No.1 that she was entitled to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women was accepted by the High Court. Challenging the said judgment of the High Court, the appeals were filed by the Public Service Commission, Uttaranchal as well as State of Uttaranchal. This Court set aside the judgment of the High court on the ground that the selected candidate in reserved category vacancy was a necessary party.The judgment of this Court in A. Janardhana relied by Shri Naphade is not applicable in the facts of the present case. In the above case, this Court was considering the challenge to the seniority list. This Court has noticed in paragraph 36 that the appellant had not claimed seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention was that criteria adopted by the Union Government in drawing up the seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing already drawn up valid list. Thus, the relief is claimed against the Union Government and not against any particular individual. This Court by making the above observation has repelled the submission that relief could not have been granted without impleading those who were affected in the seniority list. The claim pertaining to seniority may be laid on different grounds. There may be cases where seniority is claimed against individual person on specific facts, it might be necessary to implead those persons but there may be cases where non-impleadment of person in seniority dispute may not be fatal. The present is a case of recruitment and selection, where after participation in the selection process, 832 candidates were finally selected and were included in the select list. By inclusion in the select list, the selected candidate had acquired right of consideration for appointment, which could not have been taken away in the writ petition filed by respondent No.1, where he could not have challenged the advertisement Nos.2 of 2017 and 48 of 2017.37.Shri Naphade further submitted that by mere inclusion of the name in the select list, no right has accrued to the selected candidate for appointment.It may be true that by mere inclusion in the select list, there is no right of appointment but by inclusion in the select list the candidate is entitled for consideration for his appointment, which could not have been denied without there being any valid reason. Thus, we find force in the submission of the appellant that in the present case, the High Court could not have modified the select list without the selected candidates, whose interest was jeopardized by the High Court being impleaded in the writ petition. Thus, directions issued by the High Court in paragraph 51 are not sustainable also in view of the fact that respondent No.1 had not impleaded the selected candidates in his writ petition.38. Although, learned counsel for the parties have made elaborate submissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso and Rule 4 but in the facts of the present case, where writ petitioner, i.e., respondent No.1 was held by the High Court not competent to challenge the advertisement Nos.2 of 2017 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the Rules, 2016. The challenge to Rules, 2016 in the background of the present case ought not to have been allowed to be raised at the instance of the writ petitioner. The respondent No.1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No.1 to challenge the advertisement Nos.2 of 2017 and 48 of 2017, as held in paragraph 48 of the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be challenged directly by the respondent No.1. The High Court in the facts of the present case, where respondent No.1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the Rules, 2016 in so far as the selection in question was concerned. The writ petition filed by respondent No.1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained.A perusal of the impugned judgment indicates that the High Court was influenced by the submission of the appellant that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfill qualification as laid down in notification dated 12.06.1989, the High Court has virtually entertained the writ petition as PIL. Following observations made by the High Court in paragraph 29 clearly indicate that the High Court proceeded to treat the writ petition as PIL, although, it relates to condition of service of Assistant Inspector of Motor Vehicles.We, thus, are of the view that the High Court ought not to have entertained the writ petition, in which challenge was to the Rules, 2016, which were clearly in reference to recruitment under advertisement Nos.2 of 2017 and 48 of 2017. When the respondent No.1, i.e., writ petitioner was held not entitled to challenge the advertisement Nos.2 of 2017 and 48 of 2017 at his instance, proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list dated 31.03.2018 was clearly impermissible. The High Court, thus, fell in error in issuing directions in paragraph 51. We are also of the view that in the facts of the present case, it was not necessary for the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) and Rule 4 of the Rules, 2016. We having taken the view that directions issued by the High Court in paragraph No.51 are not sustainable, for the purpose of this case, it is not necessary for us to dwelve upon various submissions raised with regard to Rules, 2016, which according to us was not required to be gone into by the High Court in the background of the present case.