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2018 Supreme(Bom) 873
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, M.S. SONAK, JJ.
Maharashtra Public Service Commission - Petitioners
Versus
Pankajkumar C. Dabhire & Ors. - Respondents
Writ Petition No. 5621 of 2015 With Writ Petition No. 4555 OF 2016
Decided On : 03-07-2018
For the Petitioners: Mr. Ashutosh Kulkarni with S.S. Diwan, Mr. Avinash Kango
For the Respondent: Mr. Shrihari G. Aney, Mr. Pradeep Patil with Mr. Pravin Gole, Mr. Atul Damle, Mr. A.S. Pandire
For the State : Mr. A.I. Patel
Headnote:
Constitution of India, 1950 - Article 320 - Maharashtra Public Service Commission Rules - Rule 10 - Post of Assistant Executive Engineers - Advertisements - Counsel for parties agree that both these petitions need to be disposed of by common judgment and order since main issue involved is virtually identical - Counsel also agree that writ petition be taken as lead petition and fate of this petition will determine fate of connected writ petition - Accordingly Rule in both these petitions - With consent of and at request counsel for parties Rule is made returnable forthwith – Held, Secondly such contention finds no reference even in replies filed by respondents to these petitions - Thirdly such contentions nothing but challenge to Rules when in fact respondents had themselves insisted that there was an obligation upon MPSC to maintain wait list in terms of Rule which they now seek to assail - Respondents had challenged Amendment Rules by which requirement to maintain wait lists was sought to be done away with by MPSC inter alia on ground that such amendments could not have been given any retrospective effect - As noted earlier respondents to rely and benefit from Rule which according to them mandates maintenance of wait list - However respondents vide this last contention seek to challenge validity of this Rule to extent it provides for period during which such wait list is to operate - There are as noted earlier neither any pleadings nor any foundation laid in support of such belated challenge - In matter of this nature Honble Supreme Court has itself held that wait lists are not sources of recruitment and wait listed candidates cannot claim any indefeasible right to recruitment particularly where validity period wait list has lapsed in terms of Rules or where no such validity period is prescribed in Rules then within some reasonable period – Petition allowed
1. Heard the learned counsel for the parties.
2. The learned counsel for the parties agree that both these petitions need to be disposed of by a common judgment and order, since, the main issue involved, is virtually identical. The learned counsel also agree that writ petition no. 5621 of 2015 be taken as the lead petition and the fate of this petition will determine the fate of the connected writ petition no. 4555 of 2016.
3. Accordingly, Rule in both these petitions. With the consent of and at the request of the learned counsel for the parties, Rule is made returnable forthwith.
4. The challenge in these petitions is to the impugned judgments and orders dated 24th November 2014 and 27th February 2015 in Original Application Nos. 907 of 2013 and 1008 of 2013 made by the MAT directing the petitioners – Maharashtra Public Service Commission (MPSC) to recommend the names of the original applicants (respondents herein) for appointment to the post of Assistant Executive Engineers and Assistant Engineers respectively.
5. Mr. Ashutosh Kulkarni and Mr. Avinash Kango, the learned counsel for the petitioners submit that Rule 10(7) of the Maharashtra Public Service Commission Rules of Procedure 2005 (2005 MPCS Rules) nowhere obligates the MPSC to maintain a wait list in case of every selection process. They submit that the use of the expression 'may' in Rule 10(7), makes it clear that the provision is only enabling or discretionary. They submit that factually the MPSC had not maintained any wait list for the present selection and therefore, the MAT was not right in directing the MPSC to make recommendations on the basis of a non existing wait list.
6. The learned counsel for the petitioners further submit that even if some wait lists were to be maintained, the same, would lapse on 24th November 2011 since, on the said date, advertisements for similar examinations were already declared by the said date. They point out that Rule 10(7) upon which the respondents had placed reliance, itself provides that the wait list shall lapse on the declaration of the date of subsequent examination in the same category or after a period of two years from the date of preparation of the wait list whichever is earlier. They submit that the direction of the MAT is therefore, in breach of Rule 10(7) of the 2005 MPSC Rules.
7. The learned counsel for the petitioners submit that the reasoning in paragraph 7 of the judgment and order dated 24th November 2014 is quite flawed at least for two reasons. In the first place, in the absence of any ambiguity in Rule 10(7), the MAT, under the garb of interpretation, has virtually rewritten the Rule, which is impermissible. Secondly, the instances referred to by the MAT in the said paragraph were not at all comparable to the present situation. They submit that the view taken by the MAT runs counter to the settled legal position that wait list can never be made to operate beyond the period of its validity prescribed in the Rule and in any case wait lists do not furnish any source for recruitment. They point out that candidates on the wait list can claim no indefeasible right to appointment. In support of these propositions, they rely on Gujarat State Dy. Executive Engineer's Association vs. State of Gujarat & Ors. 1994 Supp (2) SCC 591, State of Orissa & Anr. vs. Rajkishore Nanda & Ors. (2010) 6 SCC 777, Vijoy Kumar Pandey vs. Arvind Kumar Rai & Ors. (2013) 11 SCC 611, Raj Rishi Mehra & Ors. vs. State of Punjab & Anr. (2013) 12 SCC 243, Secretary, A.P. Public Service Commission vs. B. Swapna & Ors. (2005) 4 SCC 154 and Secretary, Kerala Public Service Commission vs. Sheeja P.R. & Anr. (2013) 2 SCC 56.
8. Mr. Shrihari Aney and Mr. Atul Damle, learned Senior Advocates for the respondents who had instituted the Original Applications before the MAT refute the aforesaid contentions and submit that there is no case made out to warrant interference with the view taken by the MAT. They submit that the MPSC, had in fact placed
