Interim order cannot be vacated without justifiable ground: SC

Gajalal Babulal Bansode v. State of Maharashtra.

Civil Appeal No. 104 of 2021.

5th February, 2020.

Counsel for the appellants- Learned Senior Advocate Shri Vinay Navare.

Counsel for the respondents- Learned Senior Advocate Shri Sachin Patil.

The Hon’ble Supreme Court consisting of judges Justice L.Nageswara Rao, Justice Malhotra and Justice Vineet Saran held in this case that the High Court shall not Pass an order on a matter which tilts in the favour of one of the parties, but still is pending to be determined by it or any other court of law. They also held that an interim order cannot be vacated unless a genuine and justifiable reason is there to vacate it.

The government of Maharashtra on 02.06.2016 issued a requisition to the Maharashtra public service commission (MPSC) to conduct the Limited Departmental Competitive Examination (“LDCE”) for recruitment of police sub-inspectors in the state of Maharashtra . This was done so as to create a fair way of recruiting police sub-inspectors, as this way entails selection on the basis of merit. In pursuance of this requisition, the home department, government of Maharashtra vide its government circular dated 27.06.2016 notified 828 vacancies, out of which 642 were from the open category, and 186 were from various reserved categories, for promotion to the post of Police Sub-Inspector through the LDCE– 2016. This order or the recruitment process was governed by the Police Sub Inspector (Recruitment) Rules, 1995.

The result of the LDCE examination was declared on 12.12.2017 according to which 642 were selected i.e. who scored more than 253 marks in the test and 186 candidates from the reserved categories were selected i.e. who scored more than 230 marks in the test.

But vide the Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019, the home department of government of Maharashtra initiated a process to accommodate 636 additional members for the post of police sub-inspector, which disturbed the ratio established by rule 4 of Police Sub Inspector (Recruitment) Rules, 1995 i.e. 25:25:50, which means on selection of every 25 members on the basis of promotion, there should be selection of 25 and 50 members on the basis of exam clearance and nomination respectively. This is the reason, this order was contentious.

Original applications were filed against the above government resolution dated 22.04.2019. The present case entails the original application no. 722/2019 by in-service police constables on the contention that the application of the above government resolution would hamper their promotional prospects.

The writ petition No. 15045 of 2019 of original appellants on this issue was made to High court, Aurangabad bench, the through its order dated, where it was directed that the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period.

Learned Senior Counsel for the appellant submitted that (i). The government resolution dated 22.02,.2019 violated the statutory provisions of police sub inspector (Recruitment) rules, 1995 as according to rule 5 of it, the government could not take the decision not in accordance with the statute without the consultation of MPSC (ii). This resolution of the government is a serious regularity and in turn has spoiled the functioning of the MPSC as has the power to appoint candidates to 4 various posts in the State. The post of Police Sub-Inspector being a Class III post, was required to be filled up in accordance with The Police Sub-Inspector (Recruitment) Rules, 1995.(iii). The effectuation of this resolution would distort the ratio enshrined in rule 4 of the Police Sub-Inspector (Recruitment) Rules, 1995. (iv)The enforcement of the resolution would deny the promotional avenues of the petitioners, as it would distort the 25% reservation of police personnel getting into the position of sub-inspector who have either failed in the LDCE 2016 or cannot be qualified because of age, experience and educational qualification. (v) The denial of promotion to police personnel is violative of article 14 and 16 of the Indian Constitution.

Learned Senior Counsel for the respondents submitted that (i)- Two of the said petitioners have failed to qualify the LDCE exam, 2016, so did not deserve the position of sub-inspector, therefore, the resolution of the government should be implemented (ii). The petitioners in their original application did not implead the 636 candidates and so their contention shall be negated, as these 636 parties were necessary parties and their non-impleadment would lead to quashing of original application under order 1 rule 10 of CPC or in [articulate, relief would not be given to the applicant. (iii). The same government resolution was challenged in the case “Nivrathi Venkatrao Gitte v. State of Maharashtra,”, wherein only it was decoded that these 636 parties are necessary parties and thus must be impleaded,, according to the Bombay High Court held attributable to W.P. No. 3555/2019 of the above case. (iv). The Bombay High court in ‘Nivrathi Venkatrao Gitte v. State of Maharashtra ‘which was a result of challenge of the same government resolution dated 22.02.2019 directed that the process of selection shall proceed and so shall accordingly be done. (v) Article 320(3)(a) of the Constitution of India provides that the Union Public Service Commission, or the State Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services, and for civil posts.

In the above regard, the court held that the government of Maharashtra would be required to prove that there were sufficient exceptional and unforeseeable circumstances, which are enough to invoke rule 5 of the Police Sub-Inspector (Recruitment) Rules, 1995.

Then the court held that

“The impugned G.R dated 22.02.2019 aims to fill double the number of seats notified by LCDE, 2016 through the circular dated 27.06.2016, but according to a well-settled in service jurisprudence, the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India” (Para 15).

Then the court held that the justification of Maharashtra administrative tribunal that in O.A. no 455 of 2019, some of the appellants withdrawn their cases is also not a sufficient justification for vacating the Order of status quo.

Concluding the Court held,

“In the result, we allow the present Civil Appeal, and direct that Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.4.2019 will remain stayed during the pendency of proceedings before the Maharashtra Administrative Tribunal. We set aside the Order dated 30.11.2019 passed by the Maharashtra Administrative Tribunal which vacated the interim Order 18.10.2019, and the Order dated 06.03.2020 passed by the Bombay High Court in W.P. No. 15045 / 2019” (Para 20).

“We direct the Maharashtra Administrative Tribunal, Nagpur Bench to decide the pending O.A. within a period of six months from the date of receipt of this Order. The Tribunal will ensure that the additional 636 candidates are given notice of the pending O.A. through the State, to enable them to appear and participate in the proceedings. The Tribunal is further directed to club all pending Original Applications challenging the impugned Government Resolution No. Police -1818/ File 355/Pol 5A, and pass a common Judgment in these cases”

Subsequently, all the remaining appeals would be accordingly disposed off.

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Yajush Tripathi