2010 Supreme(Bom) 1063

2010(5) ALL MR 383
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. M. KHANWILKAR & R. M. SAVANT, JJ.
Maharashtra Public Service Commission
Vs.
Rajendra C. Kadam & Ors.
Writ Petition No.2981 of 2010 WITH Writ Petition Nos.2525, 2837, 2845, 2586, 2708, 2546, 3457, 2605 of 2010 2nd August, 2010.

Headnote:Bombay Police Act, 1951 - Section 5(b) - Police Sub-Inspector (Recruitment) Rules, 1995, Rules 3(b) and 4 - Selection list - For post of Police Sub-Inspector - Petition challenging it rejected by MAT - Challenged - Contention, all recruitments in Government prescribe a reservation of 30% for women candidates and no such reservation provided in current selection process which violated said norm - Held - Present recruitment process was of selection on basis of Limited Department Examination, that cannot be equated with recruitment by nomination as provided in Rule 3(c) of Rules 1995. - The next ground agitated was that all the recruitments in Government prescribe a reservation of 30% for women candidates. No such reservation has been provided in the current selection process, which has violated the said norm. Even this plea has been negatived by the Tribunal. The Tribunal has noticed that the Government Resolution adverted to dated 25th May, 2001 issued by the Women and Child Welfare Department was in respect of reservation of 30% for women candidates. It clarifies that 30% is applicable only for direct recruitment. Since the present recruitment process was of selection on the basis of Limited Departmental Examination, that cannot be equated with the recruitment by nomination as provided in Rule 3(c). Court is in agreement with this opinion of the Tribunal. The present selection process is on the basis of Limited Departmental Examination to which the norms or reservation specified for direct recruitment will have no bearing. No statutory rule has been brought to Court’s notice which mandates that even in respect of the selection process, reservation to the extent of 30% for women ought to be observed. Accordingly, even this contention ought to fail.

       Bombay Police Act, 1951 - Section 5(b) - Police Sub-Inspector (Recruitment) Rules, 1995, Rules 3(b)(ii) and 4 - Select list - For post of Police Sub-Inspector - Petition challenging it rejected by MAT - Challenged - Contention, Recruitment Rules prescribing regular service implies that confirmed order must have been passed in favour of candidate so as to become eligible within meaning of Rule 3 of Rules 1995 - Held - Contention not tenable - Tribunal rightly taken view that even if confirmation order has remained to be issued, that by itself not mean that person is not in regular service as Police Constable unless established to contrary. - Court may now turn to Rule 3(b)(ii). It stipulates that the candidate must have completed a minimum regular service as Police Constable. The expression ’regular service’ as has been understood by the Tribunal would mean that the person is a regular appointee or regularly selected. The expression excludes only those persons who are working on ad hoc basis or fortuitous appointees on the post of Police Constable. Not even a single successful candidate is covered by the latter category. It would necessarily follow that all the successful candidates were eligible being in regular service as Police Constable. Court is in agreement with the view taken by the Tribunal that even if the confirmation order has remained to be issued for whatever administrative reasons, that by itself does not mean that a person is not in regular service as Police Constable unless established to the contrary. In the circumstances, Court finds no merits even in this challenge of the original applicants.

       Bombay Police Act, 1951 - Section 5(b) - Police Sub-Inspector (Recruitment) Rules, 1995, Rules 3 and 4 - Select list - For post of Police Sub-Inspector - Petition challenging it rejected by MAT - Challenged - Contention cut-off marks not announced beforehand by M.P.S.C. - Held - Principles of multiplier of number of vacancies of prune selection list at different levels applied by M.P.S.C. neither arbitrary nor illogical or absurd - M.P.S.C. followed process in complete conformity with extant Regulation - Attempted to select best candidates amongst available candidates at relevant time. - Court may now turn to the grievance of the original applicants that although they had raised the issue of cut-off marks not being announced beforehand by the M.P.S.C. It is argued that this plea has not been adverted to at all by the Tribunal. In the first place, going by the judgment of the Tribunal it does not appear that this plea was argued before the Tribunal. The Tribunal has noted all the grounds of challenge in the opening part of the judgment and dealt with the same in seriatim. In any case, it is well established by now that the M.P.S.C. is competent to evolve process of elimination so as to make the selection process meaningful. Court finds that the principle of multiples of the number of vacancies to prune the selection list at different levels applied by the M.P.S.C. is neither arbitrary, illogical or absurd. The fact that the selection list could have been finalised also by adopting some other method as suggested by the original applicants cannot be the basis to frown upon the selection list prepared by the M.P.S.C. It is not the case of the original applicants that the method adopted by the M.P.S.C. was to favour any section of candidates as such. Court finds that the process followed by the M.P.S.C. is in complete conformity with the extant Regulations and attempted to select the best candidates amongst the available candidates at the relevant time eligible for being appointed against the vacancies.

       Bombay Police Act, 1951 - Section 5(b) - Police Sub-Inspector (Recruitment) Rules, 1995, Rules 3 and 4 - Select list - For post of Police Sub-Inspector - Published on 12.11.2009 - Petition challenging it rejected by MAT - Challenged - Contention, cut-off date fixed as 1.1.2008 for examination of 2006 illegal, essential qualification to be sanctioned in context of date of vacancies against appointments to be made at relevant time - Held - State Government competent to provide for cut-off date of its choice so as to widen net to invite more candidates to compete inter-se - That facilitates selection of best amongst available lot - Cut-off date fixed justified. - Considering the arguments of both sides even if Court was to agree with the original applicants/contesting respondents that their case will have to be considered as covered within the excepted category, as they had no choice and also because the State and M.P.S.C. did not specifically plead or prove the factum of acquiescence by the original applicants. The question is, whether the cut-off date as arrived at by the State can be said to be illogical, mala fide or arbitrary? Admittedly, it is nobody’s case that the cut-off date was fixed as Ist January, 2008, so as to accommodate any particular candidate or to deprive the prospects of any of the original applicants. In the first place, Court is not dealing with the claim of the original applicants for promotion as such. If it were to be a case of promotion, certainly the date of vacancies would assume significance in following the process for appointment on promotion. However in the present case, admittedly, the claim is in relation to selection on the basis of Limited Departmental Competitive Examination. If it is so, the State Government was competent to provide for cut-off date of its choice so as to widen the net to invite more candidates to compete inter se. That would facilitate selection of best amongst the available lot as and when the examination to appoint by selection based on Limited Departmental Examination was to be held. Court finds that the cut-off date has been justly fixed as 1st January, 2008, considering the fact that the examination to be conducted for selecting the candidates as Sub-Inspector of Police was to be held in the year 2008- although pertaining to vacancies of year 2006. If any authority is required, we can usefully refer to the decision of the Apex Court in the case of J.&K. Public Service Commission and others v. Dr Narinder Mohan and others, 1993 DGLS (soft) 1038 : (1994) 2 SCC 630.

       Further, it is well-established that the Government need not immediately notify vacancies as soon as it would occur. If the cut-off date was to be pegged down to year 2006, it would deprive all the eligible candidates as on date of inviting applications for recruitment which action would be offending Articles 14 and 16 of the Constitution of India. Thus understood, the challenge to the selection process on the ground that incorrect cut-off date has been specified by the Government cannot be sustained.