VISHAL ASHOK THORAT AND ORS. versus RAJESH SHRIRAMBAPU FATE & ORS.
[2019] 9 S.C.R. 628, Supreme Court of India, 2019
Outcome: Case Allowed (Granted)
Segment: Ratio
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VISHAL ASHOK THORAT AND ORS.
v.
RAJESH SHRIRAMBAPU FATE & ORS.
(Civil Appeal No. 5444 of 2019)
JULY 19, 2019.
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Service Law:
Assistant Inspector of Motor Vehicles, Group-C in Motor
Vehicles Department (Recruitment) Rules, 2016 – rr. 3(iii), (iv) and
4 – Post of Assistant Inspector of Motor Vehicles, Group-C –
Advertisement Nos. 2 of 2017 and 48 of 2017 inviting applications
for the posts – Selection of 832 candidates and inclusion in the
selection list – Writ petition by respondent no. 1 challenging 2016,
Rules  – Disposed of, giving liberty to make representation to the
State, which was rejected – Filing of second writ petition by
respondent no.1 challenging only 2016 Rules in which respondent
filed amendment application seeking quashing of advertisements
as well as list of selected candidates which was allowed – High
Court though held that respondent No.1 cannot be permitted to
challenge the advertisements but set aside the proviso to r. 3(iii)
and 3(iv) and r. 4 and issued directions to choose and select only
those who had participated in the selection process and fulfilled
the requirement as per the Rules – On appeal, held: 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 – High
Court erred in issuing direction to modify the
select list –
Furthermore, the selected candidates whose names were already
published ought to have impleaded – In absence of the same, the
High Court erred in issuing direction to modify and review the select
list – By mere inclusion in the select list, there is no right of
appointment but the candidate is entitled for consideration of his
appointment, which could not have been denied without there being
any valid reason – Respondent No.1, who did not participate in the
selection and the High Court had specifically rejected the entitlement
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of the respondent No.1 to challenge the advertisement and select
list, permitting him to challenge the validity of the Rules in reference
to the same advertisements is indirectly challenging something which
could not be challenged directly by the respondent No.1 – Thus,
when the respondent no. 1 was held not entitled to challenge the
advertisement, the proceeding to entertain the challenge to the
validity of the Rules and to strike down the Rules and modifying the
select list was clearly impermissible – Thus, the High Court erred in
issuing the directions and the order passed by the High Court is set
aside.
Service Jurisprudence: Writ petition relating to condition of
service of Assistant Inspector of Motor Vehicles – High Court
entertained the writ petition as PIL – Correctness of – Held: With
regard to service jurisprudence, PIL are not entertained – Writ
petition filed by respondent No.1 was not styled or framed as PIL –
High Court being influenced by the submission 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, virtually entertained the writ petition as PIL – High
Court ought not to have entertained the writ petition.
Allowing the appeals, the Court
HELD: 1.1 The High Court permitted the respondent No.1
to challenge the advertisement Nos.2 of 2017 and 48 of 2017 and
the entire recruitment process undertaken thereunder.
Respondent No.1
was also permitted to challenge the select list
dated 31.03.2018. Respondent No.1 in his writ petition sought to
challenge advertisements only on 13.04.2018 whereas
advertisement for preliminary examination was first issued on
30.01.2017. Admittedly, respondent No.1 never applied against
the advertisement to participate in the recruitment for the post
of Assistant Inspector of Motor Vehicles. The High Court
although has permitted respondent No.1 to amend the prayer in
the writ petition by including challenge to the advertisements as
well as challenge to the select list but in the impugned judgment
the High Court has categorically held that respondent No.1 cannot
be allowed to challenge the advertisements dated 30.01.2017 and
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01.07.2017. The High Court in paragraph 48 of its judgment has
clearly held that writ petitioner cannot be permitted to challenge
the advertisements dated 30.01.2017 and 01.07.2017. When the
High Court held that respondent No.1 could not be permitted to
challenge the advertisements dated 30.01.2017 and 01.07.2017,
it cannot be appreciated that how the High Court could have
interfered with the select list of 832 candidates, which was
prepared after preliminary examination and main examination in
pursuance to the advertisements dated 30.01.2017 and
01.07.2017. When respondent No.1 was not allowed to challenge
the advertisements, tinkering with the select list by the High
Court was impermissible and self– contradictory. 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 to modify the select list. [Para 29-32]
[643-F-H; 644-A-B, E-F, H; 645-A-B]
1.2 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 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. [Para 33] [645-C-E]
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Udit Narain Singh, Malpatharia v. Additional Member
Board of Revenue, Bihar and another AIR 1963 SC
786 : [1963] Suppl. SCR 676 ; Public Service
Commission, Uttaranchal v. Mamta Bisht and others
(2010) 12 SCC 204 : [2010] 7 SCR 289 – referred to.
1.3 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. [Para 36] [649-G-H]
1.4 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, 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 are not sustainable
also in view of the fact that respondent No.1 had not impleaded
the selected candidates in his writ petition. [Para 37] [650-A-C]
1.5 In the facts of the instant case, where writ petitioner–
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 instant 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 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 instant
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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. [Para 38]
[650-D-G]
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra
and others (2013) 4 SCC 465 : [2012] 10 SCR 994
– referred to.
1.6 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 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. [Para 39] [651-B-C]
1.7 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-writ petitioner
was held not entitled to challenge the advertisement 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 the directions. Also, 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. The judgment of
the Division Bench of the High Court is set aside and the writ
petition is dismissed. [Paras 40 and 42] [651-D-G; 652-B-C]
A. Janardhana vs. Union of India and others (1983) 3
SCC 601 : [1983] 2 SCR 936 – held inapplicable.
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Case Law Reference
[1963] Suppl. SCR 676
referred to
Para 33
[2010] 7 SCR 289
referred to
Para 34
[1983] 2 SCR 936
held inapplicable
Para 36
[2012] 10 SCR 994
referred to
Para 38
CIVIL APPELLATE JURISDICTION : Civil Appela No. 5444
of 2019.
From the Judgment and Order dated 28.09.2018 of the High Court
of Judicature at Bombay, Bench at Nagpur in Writ Petition No.1270 of
2018.
With
Civil Appeal  Nos. 5445, 5446 of 2019.
Dr. Abhishek Manu Singvi, Paramjit Singh Patwalia, Jayant
Bhushan, Shekhar Naphade, P. S. Narasimha, Sr. Advs., Ravindra
Keshavrao Adsure, Sagar N. Pahune-Patil, Ms. Natasha Dalmia,
Ms. Harshikha Verma, Dhruv Sheoran, Prasenjit Keswani, Nishant
Ramakantrao Katneshwarkar, Arvind S. Avhad, Abhishek Krishna,
Yogesh Kumar, Sanjay Kharde, Samrat Shinde, Ms. S. Lakshmi Iyer,
R. L. Khapre, Rishi Jain, Upmanyu Tewari, Tushar Bhushan, Sandeep
Sudhakar Deshmukh, Vasim Siddiqui, Vishaal Jogdang, Debasis Misra,
K. Subbarao, H. Chandra Sekhar, Ms. Rekha Chandra Sekhar, Rahul G.
Tarwani, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. All these appeals have been filed against the common judgment
dated 28.09.2018 of the Bombay High Court, Bench at Nagpur in W.P.No.
1270 of 2018 filed by Rajesh Shrirambapu Fate, respondent no.1 in these
appeals by which judgment the High Court has partly allowed the writ
petition of respondent no.1.
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
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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
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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
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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.
12. In these appeals, we have heard Dr. Abhishek Manu Singvi,
Shri Jayant Bhushan and Mr. Paramjit Singh Patwalia, Senior Advocates
for the appellant. Shri Shekhar Naphade, Senior Advocate has appeared
for respondent No.1. Shri P.S. Narasimha, learned senior Advocate has
been heard for the applicants, who had prayed for intervention. We have
also heard other learned counsel in support of the appeals.
13. Learned Counsel for the appellant in Civil Appeal of Vishal
Ashok Thorat has led the arguments. He submitted that the writ petition
filed by the respondent No.1 ought to have been dismissed on laches
and on conduct. It is submitted that the respondent No.1
has no locus to
challenge the recruitment of Assistant Motor Vehicles Inspector. The
respondent No.1 in his earlier writ petition being W.P.No.729 of 2017
having not challenged the advertisement Nos.2 of 2017 and 48 of 2017,
he cannot be allowed to challenge the same in W.P. No.1270 of 2018 by
allowing the amendment application.
14. It is submitted that the respondent No.1 in pursuance of
advertisements cannot be said to be aggrieved by the recruitment. It is
submitted that the amendment in W.P. No.1270 of 2018 was filed by the
respondent No.1 only when the result was declared on 31.03.2018. It is
submitted that one nephew of respondent No.1 had also applied in
pursuance of advertisement and could not be selected in the result dated
31.03.2018, hence the respondent No.1 thereafter sought to challenge
the advertisement, which challenge ought to have been rejected by the
High Court. It is submitted that High Court having returned the finding in
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paragraph 48 of the impugned judgment that writ petition cannot be
permitted to challenge the advertisements dated 30.01.2017 and
01.07.2017, it ought not to have issued direction in paragraph 51 which is
nothing but indirectly entertaining the challenge to the advertisement
which could not have been directly entertained.
15. It is submitted that Rule 3 of Rules, 2016 fully complies with
the notification of the Central government dated 12.06.1989 issued under
Section 213(4) of Motor Vehicles Act, 1988. The substantive part of
Rule 3 is fully in consonance with qualifications prescribed by notification
dated 12.06.1989. The State government by Proviso in Rule (iii) and
Rule 3(iv) has given only breathing time to those candidates who does
not fulfill qualification to obtain it during the probation period, which cannot
be said to be contrary to notification dated 12.06.1989.
16. It is further submitted that by subsequent notification dated
08.03.2019 of the Central Government, the notification dated 12.06.1989
has been substituted. Now the requirement of notification dated
12.06.1989 is no longer in continuance. The State is free to make
appointment of the selected candidates.
17. It is further submitted that six writ petitions were already
dismissed by the High Court, where the whole recruitment process was
under challenge. Three Special Leave Petitions were filed against the
judgment of the High Court which too were dismissed by this Court. It is
submitted
that respondent No.1, who was writ petitioner in Writ Petition
No.1270 of 2018, had not impleaded any selected candidates, hence, no
direction could be issued by the High Court with regard to select list
dated 31.03.2018. It is further submitted that Section 213 of the Motor
Vehicles Act prohibits appointment of candidates, who do not fulfill the
qualifications as notified by the Central Government. None of the selected
candidates having been appointed and the notification dated 12.06.1989
being not in operation, there is no impediment in appointment of the
selected candidates who fulfill the qualifications, which are prescribed
as on date. It is submitted that proviso to Rule 3(iii) and  Rule 3(iv) is not
contradictory to notification dated 12.06.1989 but is in harmony. The
High Court ought to have dismissed the writ petition denying relief to the
respondent No.1 who was writ petitioner in the facts of the present
case. In the facts and circumstances of the present case the respondent
No.1 has no locus to challenge the recruitment and selection.
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18. In support of the appeal filed by the State of Maharashtra,
learned senior counsel submits that respondent No.1 had no locus to file
a writ petition, he having not participated. It is submitted that provisos to
Rule 3(iii) and Rule 3(iv) of Rules, 2016 do not at all lower minimum
qualification prescribed by Central Government vide notification dated
12.06.1989, but it merely gives breathing period of two years (before
completion of probation period) to selected candidates to gain experience
of one year and driving licence. It is submitted that direction in paragraph
51 of the judgment cannot be complied as on date, in view of fact that
notification of the Central Government dated 12.06.1989, is no longer in
operation. Rules,2016 do not change the minimum qualification which is
same as provided in substantive provision of Rule 3 and proviso carves
out only an exception giving some time to acquire the qualification during
the probation period by which provision the zone of consideration has
been enlarged enabling the more meritorious candidates to apply for the
post. The High Court committed error in treating the writ petition filed
by the respondent as Public Interest Litigation whereas in the service
matters no Public Interest Litigation can be entertained.
19. It is further submitted that if only the qualification mentioned
in the notification dated 12.06.1989 is adhered to, there are only 25
candidates in the
entire list of selected candidates who shall be available
for appointment leaving almost all the posts of Assistant Inspector of
Motor Vehicles vacant which is not in the interest of the State. The
Court should take into consideration the subsequent events. The
notification dated 08.03.2019 issued by the Central Government is
important subsequent event, which has knocked out the very basis of
the judgment of the High Court.
20. It is further contended that it is the State, which has legislative
competence with regard to the State Public Services Commission under
Entry 41 List II of the Seventh Schedule of the Constitution of India.
Thus, the State was fully empowered to make Rules providing for
recruitment to the post of Assistant Inspector of Motor Vehicles.
21. Learned senior counsel appearing for the appellants in the
appeal filed by Abhijit Appasaheb Vasagade and others has adopted the
submissions made in appeal filed by Vishal Ashok Thorat and others. It
is further submitted that respondent No.1 in his earlier Writ Petition
No.7239 of 2017 having not challenged the advertisement Nos. 2 of
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2017 and 48 of 2017 had given up the right to challenge these
advertisements, hence, he has no right to challenge these advertisements
in his second Writ Petition No.1270 of 2018. The appellants who are
included in the list of 832 selected candidates grinded for two years and
9 months and at the instance of respondent No.1 selection could not
have been interfered with by the High Court. Respondent No.1 is legally
estopped from challenging the selection process.
22. In Seventh Schedule, List III (concurrent list) Entry 35 provides
for “Mechanically propelled vehicles including the principles on which
taxes on such vehicles are to be levied” which Entry does not empower
the Central Government to prescribe minimum qualification for Assistant
Inspector of Motor Vehicles. The notification dated 12.06.1989 cannot
be benchmarked to test constitutional validity of provisos to Rule 3(iii),
Rule 3(iv) and Rule 4 of Rules, 2016.
23. Shri Shekhar Naphade, learned senior counsel appearing for
respondent No.1 refuting the submissions of the counsel for the appellants
submits that respondent No.1 is qualified for the post of Assistant
Inspector of Motor Vehicles and had jurisdiction to challenge the Rules,
2016. There is no delay on the part of the writ petitioner i.e. respondent
No.1 in challenging Rules, 2016. Rule 3(iii) and Rule 3(iv) of Rules, 2016
diluted the minimum qualification as prescribed by the Central
Government by its notification dated 12.06.1989. The
State cannot appoint
a person who does not fulfil the minimum qualification. The appointment
of such person even on probation is neither in the public interest nor in
the interest of public exchequer. Disqualified person cannot be allowed
by the State to get salary even though when they are not discharging the
duty of Assistant Inspector of Motor Vehicles. The High Court could not
be a mute spectator in a situation where the State has framed Rules for
appointment of a person who does not fulfil the qualification. No error
has been committed by the High Court in setting aside Rule 3(iii), Rule
3(iv)and Rule 4 of the Rules, 2016. Many selected candidates were
added in the writ petition even though on their own instance and were
heard by the High Court hence it cannot be said that selected candidates
were not heard by the High Court. The notification dated 08.03.2019 by
which the Central Government has now substituted earlier notification
dated 12.06.1989 is not applicable in the present case. Since, the entire
process of recruitment has been completed during currency of notification
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dated 12.06.1989. The notification dated 01.08.2016 by the Government
of India as relied by the appellant has never been published in the Gazette.
24. We have heard the learned counsel for the parties and perused
the records.
25. We may first notice the Rule 3 and Rule 4 of Rules, 2016
framed by the State of Maharashtra which were subject matter of
consideration by the High Court. Rules, 2016 were framed in exercise
of power conferred by the proviso to   Article 309 of the Constitution in
supersession of all existing Rules. Rule 3 and Rule 4 which are relevant
in the present case are as follows:
“3. Appointment to the post of Assistant Inspector of Motor
Vehicles Group ‘C’ in Motor Vehicle Department, shall be made
by nomination on the basis of the result of a competitive examination
held by the Commission from amongst the following candidates
who,—
(i)
…
…
…
…
(ii)
…
…
…
…
(iii)
possess practical experience of repairing and
maintenance of light motor vehicles, heavy goods vehicles
and heavy passenger vehicles, for a period of not less
than one year gained after acquiring the qualifications
mentioned in clause (ii), in workshop run by a Central or
State Government undertaking or Department or in a
institution recognized by Government from time to time.
The experience as trainee or apprentice shall be counted
towards requisite experience:
Provided that, if a person not possessing practical
experience of one year as
above on the last date of
submission of application for admission to the competitive
examination held by Commission shall obtain such
experience before completion of the period of probation
in workshop run by a Government undertaking or
Department or in a institution recognized by Government,
from time to time; and
(iv)
Possess a valid driving license authorizing him to drive
motor cycle with gears, light motor vehicles and transport
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vehicles, (heavy good vehicles and heavy passenger
vehicles) issued by the Competent Authority on the last
date of submission of the application for the admission to
the competitive examination held by the Commission;
Provided that, if a person not holding a valid license for
heavy goods vehicles or heavy passenger vehicles, as
the case may be, or both heavy good vehicles and heavy
passenger vehicles on the last date of submission of
application for admission to the competitive examination
held by the Commission, shall obtain such driving license
before completion of the period of probation, failing which,
he shall be liable to be discharged from the service.
He shall renew the driving license from time to time,
without break; and
(v)
…
…
…
…
(vi)
…
…
…
…
(vii) …
…
…
…
4. A person appointed to the post of Assistant Motor Vehicles
Inspector shall not perform the duty and responsibility of the said
post till he gains and acquires the prescribed experience and driving
license within probation period as mentioned in proviso to clause
(iii) and clause (iv) of Rule 3.”
26. Section 213 sub-section (4) of Motor Vehicles Act, 1988
provides for:
“Section 213(4) The Central Government may, having regard to
the objects of the Act, by notification in the Official Gazette,
prescribe the minimum qualifications which the said officers or
any class thereof shall possess for being appointed as such.”
27. Notification dated 12.06.1989 has been issued by the Central
Government in exercise of its power under Section 213(4) of Motor
Vehicles Act provides as follows:
“GOVERNMENT OF INDIA
NOTIFICATION
SO 443(E), dated 12.6.1989: In exercise of the powers conferred
by Sub-Section (4) of Section 213 of the Motor Vehicles Act,
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1988 (59 of 1988), the Central Government hereby prescribed
that the minimum qualification for the class of officers consisting
of the category of Inspector of Motor Vehicles or Assistant
Inspector of Motor Vehicles by whatever names called shall be
as under:-
(1)
Minimum general educational qualification of a pass in X
standard; and
(2)
A diploma in Automobile Engineering (3-year course of a
diploma in Mechanical Engineering awarded by the State
Board of Technical Education (3 years course); and
(3)
Working experience of at least one year in a reputed
automobile workshop which undertakes repairs of both light
motor vehicles, heavy goods vehicles and heavy passenger
motor vehicles fitted with petrol and diesel engine; and
(4)
Must hold a driving licence authorising him to drive motor
cycle, heavy goods vehicles and heavy passenger motor
vehicles.
2.
…
…
…
…
3.
…
…
…
…”
28. Reverting to the facts of the present case the MPSC issued
the Advertisement dated 30.01.2017 (Advertisement No. 2 of 2017) for
filling up the posts of Assistant Inspector of Motor Vehicles. In pursuance
of which preliminary examination was held on 30.04.2017, the result of
which was declared on 30.06.2017 and main examination was also held
on 06.08.2017. Much after holding of the above examinations, respondent
No.1 filed Writ Petition No.7239 of 2017 wherein there was no challenge
to the advertisement Nos.2 of 2017 and 48 of 2017 (for main
examination).
Only challenge raised by respondent No.1 was to the Rules, 2016. The
writ petition was disposed of on 13.11.2017 giving liberty to make
representation in the matter to the State. The State rejected the
representation of respondent No.1 referring to order of Maharashtra
Administrative Tribunal where similar challenge to the Rules was rejected.
Writ Petition No.1270 of 2018 was filed by respondent No.1 on 27.02.2018
wherein he again only challenged the Recruitment Rules, 2016. The
result of main examination held on 06.08.2017 for 633 posts of Assistant
Inspector of Motor Vehicles was declared on 31.03.2018. It was
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thereafter when respondent No.1 filed application for amendment on
13.04.2018 which was allowed by the High Court. It is useful to refer to
the amended prayers which were added in Writ Petition No.1270 of
2018, which are to the following effect:
“iii-a) By way of appropriate writ, order or direction, hold and
declare that he preliminary advertisement dated 30.01.2017 and
main advertisement dated 01.07.2017 issued by Respondent No.2
in pursuance to the Notification issued by Respondent on
23.12.2016, as ultra-virus, arbitrary, unreasonable and illegal and
also direct that the entire recruitment process undertaken pursuant
to said Recruitment Rules, dated 23.12.2016 be quashed and set
aside.
iii-b) By way of appropriate writ, order or direction, hold and declare
that, the select list published on dated 31.03.2017 vide Annexure-
XII in pursuance to the preliminary advertisement dated 30.01.2017
and main advertisement dated 01.07.2017 issued by M.P.S.C. in
pursuance to the Notification issued by Respondent on 23.12.2016,
as ultra-virus, arbitrary, unreasonable and illegal.
iii-c)By further order, direction, writ direct Respondent to issue
fresh advertisement in accordance with rules prescribed by the
Central Government in that behalf by Notification dated 12.06.1989
and to carry out fresh process of selection in pursuance to that
fresh advertisement be issued in accordance with the rules
prescribed by the Central Government in that behalf by Notification
dated 12.06.1989.”
29. The High Court, thus, permitted the respondent No.1 to
challenge the advertisement Nos.2 of 2017 and 48 of 2017 and the entire
recruitment process undertaken thereunder. Respondent No.1 was also
permitted to challenge the select list dated 31.03.2018. Respondent No.1
in his writ petition sought to challenge advertisements only on 13.04.2018
whereas advertisement for preliminary examination was first issued on
30.01.2017. Admittedly, respondent No.1 never applied against the
advertisement to participate in the recruitment for the post of Assistant
Inspector of Motor Vehicles.
30. The High Court although has permitted respondent No.1 to
amend the prayer in the writ petition by including challenge to the
advertisements as well as challenge to the select list but in the impugned
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judgment the High Court has categorically held that respondent No.1
cannot be allowed to challenge the advertisements dated 30.01.2017
and 01.07.2017. The High Court in paragraph 48 of its judgment has
clearly held that writ petitioner cannot be permitted to challenge the
advertisements dated 30.01.2017 and 01.07.2017. In paragraph 48 of
the judgment following was held:
“48. When petitioner has not challenged the advertisement in Writ
Petition No.7239 of 2017, this Writ Petition cannot be viewed
independent of order dated 13.11.2017 in earlier Writ Petition.
Preliminary advertisement and main advertisement were all issued
before Writ Petition No.7239/2017 was filed in High Court on
31.10.2017. We, therefore, do not find it necessary to delve into
various judgments mentioned supra. It follows that the petitioner
cannot be permitted to challenge the advertisements dated
30.01.2017 and 01.07.2017. However, that does not preclude him
from challenging the dilution in qualifications effected by the State
Government for recruitment as per 2016 Rules for the post of
Assistant Inspector of Motor Vehicles. He is a citizen and also
qualified, as per norms prescribed by the Central Government to
compete for it.”
31. When the High Court held that respondent No.1 could not be
permitted to challenge the advertisements dated 30.01.2017 and
01.07.2017, we failed to appreciate that how the High Court could have
interfered with the
select list of 832 candidates, which was prepared
after preliminary examination and main examination in pursuance to the
advertisements dated 30.01.2017 and 01.07.2017.  When respondent
No.1 was not allowed to challenge the advertisements, tinkering with
the select list by the High Court was impermissible and self-contradictory.
The High Court in paragraph 51 of the judgment has issued following
direction:
“51. Consequently, we direct respondents to choose and select
from the aspirants who have participated in selection process,
only such candidates who fulfill the requirements of practical
experience and driving licence, as per the qualification prescribed
by the Central Government i.e. as per substantive part of Rule
3(iii) and Rule 3(iv) of 2016 Rules.”
32. The direction in paragraph 51 of the impugned judgment clearly
directed the select list to be re-drawn by including only those candidates
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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.
The appellants rightly placed reliance on the Constitution Bench judgment
of this Court in Udit Narain Singh, Malpatharia vs. Additional
Member Board of Revenue, Bihar and another, AIR 1963 SC
786. The Constitution Bench in paragraphs 6, 7 and 9 laid down following:
“6. The question is whether in a writ in the nature of certiorari
filed under Art. 226 of the Constitution the party or parties in
whose favour a tribunal or authority had made an order, which is
sought to be quashed, is or are necessary party or parties. While
learned Additional Solicitor General contends that in such a writ
the said tribunal or authority is the only necessary party and the
parties in whose favour the said tribunal or authority made an
order or created rights are not necessary parties but may at best
be only proper parties and that it is open to this Court, even at this
very late stage, to direct the impleading of the said parties for a
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final adjudication of the controversy, learned counsel for the
respondents contends that whether or not the authority concerned
is necessary party, the said parties would certainly be necessary
parties, for otherwise the High Court would be deciding a case
behind the back of the parties that would be affected by its decision.
7. To answer the question raised it would be convenient at the
outset to ascertain who are necessary or proper parties in a
proceeding. The law on the subject is well settled: it is enough if
we state the principle. A necessary party is one without whom no
order can be made effectively; a proper party is one in whose
absence an effective order can be made but whose presence is
necessary for a complete and final decision on the question involved
in the proceeding.
9. The next question is whether the parties whose rights are directly
affected are the necessary parties to a writ petition to quash the
order of a tribunal. As we have seen, a tribunal or authority
performs a judicial or quasi-judicial act after hearing parties. Its
order affects the right or rights of one or the other of the parties
before it. In a writ of certiorari, the defeated party seeks for the
quashing of the order issued by the tribunal in favour of the
successful party. How can the High Court vacate the said order
without the successful party being before it? Without the presence
of the successful party the High Court cannot
issue a substantial
order affecting his right. Any order that may be issued behind the
back of such a party can be ignored by the said party, with the
result that the tribunal’s order would be quashed but the right
vested in that party by the wrong order of the tribunal would
continue to be effective. Such a party, therefore, is a necessary
party and a petition filed for the issue of a writ of certiorari without
making him a party or without impleading him subsequently, if
allowed by the court, would certainly be incompetent. A party
whose interests are directly affected is, therefore, a necessary
party.”
34. 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
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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. In paragraph 9 of the judgment following has been laid
down:
“9. In case the respondent No. 1 wanted her selection against
the reserved category vacancy, the last selected candidate in that
category was a necessary party and without impleading her, the
writ petition could not have been entertained by the High Court in
view of the law laid down by nearly a Constitution Bench of this
Court in Udit Narain Singh Malpaharia v. Additional Member,
Board of Revenue, Bihar and Anr., AIR 1963 SC 786, wherein
the Court has explained the distinction between necessary party,
proper party and proforma party and further held that if a person
who is likely to suffer from the order of the Court and has not
been impleaded as a party has a right to ignore the said order as it
has been passed in violation of the principles of natural justice.
More so, proviso to Order I, Rule IX of Code of Civil Procedure,
1908 (hereinafter called “CPC”) provide that non- joinder of
necessary party be fatal. Undoubtedly, provisions of CPC are not
applicable in writ jurisdiction by virtue of the provision of Section
141 CPC but the principles enshrined therein are applicable. (Vide
Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC
1153; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat and
Ors., AIR 1974 SC 2105; and Sarguja Transport Service v. State
Transport Appellate Tribunal, Gwalior and Ors., AIR 1987 SC
88).”
35. Shri Shekhar Naphade refuting the above submission has placed
reliance on the judgment of this Court in A. Janardhana vs. Union of
India and others, (1983) 3 SCC 601. This Court in the above case
has rejected the submission that those who had scored march over the
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appellant in the seniority list having not been impleaded as respondents,
no relief could have been granted to the appellant. Shri Naphade has
relied on paragraph 36 of the judgment which is to the following effect:
“36. It was contended that those members who have scored a
march over the appellant in 1974 seniority list having not been
impleaded as respondents, no relief can be given to the appellants.
In the writ petition filed in the High Court, there were in all 418
respondents. Amongst them, first two were Union of India and
Engineer-in-Chief, Army Headquarters, and the rest presumably
must be those shown senior to the appellant. By an order made
by the High Court, the names of respondents 3 to 418 were deleted
since notices could not be served on them on account of the
difficulty in ascertaining their present addresses on their transfers
subsequent to the filing of these petitions. However, it clearly
appears that some direct recruits led by Mr. Chitkara appeared
through counsel Shri Murlidhar Rao and had made the submissions
on behalf of the direct. Further any application was made to this
Court by nine direct recruits led by Shri T. Sudhakar for being
impleaded as parties, which application was granted and Mr. P.R.
Mridul, learned senior counsel appeared for them. Therefore, the
case of direct recruits has not gone unrepresented and the
contention can be negatived on the short ground. However, there
is a more
cogent reason why we would not countenance this
contention. In this case, appellant does not claim seniority over
particular individual in the background of any particular fact
controverted by that person against whom the claim is made. The
contention is that criteria adopted by the Union Government in
drawing up the impugned seniority list are invalid and illegal and
the relief is claimed against the Union Government restraining it
from upsetting or quashing the already drawn up valid list and for
quashing the impugned seniority list. Thus, the relief is claimed
against the Union Government and not against any particular
individual. In this background, we consider it unnecessary to have
all direct recruits to be impleaded as respondents. We may in this
connection refer to General Manager, South Central Railway,
Secunderabad and Anr. etc. v. A.V.R. Sidhanti and Ors. etc.,
(1974)4 SCC 335. Repelling a contention on behalf of the appellant
that the writ petitioners did not implead about 120 employees who
were likely to be affected by the decision in this case, this Court
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observed that the respondents (original petitioners) are impeaching
the validity of those policy decisions on the ground of their being
violative of Articles 14 and 16 of the Constitution. The proceedings
are analogous to those in which the constitutionality of a statutory
rule regulating the seniority of government servants is assailed. In
such proceedings, the necessary parties to be impleaded are those
against whom the relief is sought, and in whose absence no
effective decision can be rendered by the Court. Approaching the
matter from this angle, it may be noticed that relief is sought only
against the Union of India and the concerned Ministry and not
against any individual nor any seniority is claimed by anyone
individual against another particular individual and therefore, even
if technically the direct recruits were not before the Court, the
petition is not likely to fail on that ground. The contention of the
respondents for this additional reason must also be negatived.”
36. 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.
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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. In Ayaaubkhan Noorkhan Pathan vs. State
of Maharashtra and others, (2013) 4 SCC 465, this Court has
reiterated that PIL should not be entertained in service matter. In
paragraph 15 following has been laid down:
“13. Even as regards the filing of a Public Interest Litigation, this
Court has consistently held that such a course of action is not
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permissible so far as service matters are concerned. (Vide: Dr.
Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors.,
AIR 1999 SC 114; Dattaraj Natthuji Thaware v. State of
Maharashtra, AIR 2005 SC 540; and Neetu v. State of Punjab
and Ors., AIR 2007 SC 758)”
39. 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. In paragraph 29 following has been observed by the
High Court:
“We are here, satisfied that the loss being caused to public revenue
cannot be ignored and challenge cannot be seen as a grievance
pertaining to a service condition. Contention that it cannot, therefore,
be seen as public interest litigation, is misconceived. Its larger
impact on Society due to hole in taxpayer’s money and omission
to make requisite service available to the citizens, all necessitate
cognizance by any writ petition.”
40. 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
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was not required to be gone into by the High Court in the background of
the present case.
41. For the purposes of the present case, we are of the view that
contention pertaining to validity of Rule 3(iii), Rule 3(iv) and Rule 4 of
the Rules, 2016 need not to be gone into and the issues be left open to be
decided in an appropriate case.
42. In view of the forgoing discussions, we allow these appeals,
set aside the judgment of the Division Bench of the High Court dated
28.09.2018 and dismiss the Writ Petition No.1270 of 2018. Parties shall
bear their own costs.
Nidhi Jain
Appeals allowed.