Full Judgment Text
2018:BHC-AS:17373-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5621 OF 2015
Maharashtra Public Service Commission ...Petitioners
Versus
Pankajkumar C. Dabhire & Ors. ...Respondents
WITH
WRIT PETITION NO. 4555 OF 2016
Maharashtra Public Service Commission ...Petitioners
Versus
Sandeep Bhaskar Varpe & Anr. ...Respondents
Mr. Ashutosh Kulkarni with S. S. Diwan for Petitioners in WP
5621 of 2015.
Mr. Avinash Kango for Petitioners in WP 4555 of 2016.
Mr. Shrihari G. Aney – Senior Advocate i/b. Mr. Pradeep Patil
with Mr. Pravin Gole for Respondent Nos. 1 and 2 in WP
5621 of 2015.
Mr. Atul Damle – Senior Advocate i/b. Mr. A. S. Pandire for
Respondent No. 1 in WP 4555 of 2016.
Mr. A. I. Patel – AGP for State in both Petitions.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
Date of Reserving the Judgment : 25 June 2018
Date of Pronouncing the Judgment : 03 July 2018
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COMMON JUDGMENT :
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
th th
judgments and orders dated 24 November 2014 and 27
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
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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
th
same, would lapse on 24 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
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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
th
24 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)
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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 reliance upon the
MPSC Rules of Procedure (Amendment) 2011 and its
th
decision dated 5 August 2011, which may obviate the
necessity of maintaining a wait list in case of recruitment by
competitive examinations. However, they point out that
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this amendment entered into force only on 5 August 2011,
by which time, the selection process which had commenced
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with the advertisement dated 23 December 2009 had also
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concluded with the declaration of results on 30 July 2011.
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They submit that the MAT has quite correctly held that the
Amendments of 2011 had no retrospective effect and on the
basis of the same, the MPSC was not at all justified in
refusing to maintain any wait list.
9] The learned Senior Advocates for the respondents
further submitted that factually, a wait list was in fact
maintained by the MPSC, though, the MPSC, did not choose
to call such list as a wait list. They submit that the MAT,
called for records, examined the files and has correctly held
the merit list containing the names of the recommended
candidates and the non recommended candidates , is in
fact, nothing but a merit list cum wait list prepared by the
MPSC. Since the names of the respondents on the basis of
their merit in the respective categories were indicated just
below the names of the recommended candidates , the MAT,
was quite justified in directing the MPSC to recommend the
names of the respondents for appointments since
admittedly, the recommended candidates , had failed to join
the posts within the prescribed period or even otherwise.
10] The learned counsel for the respondents defend the
reasoning of the MAT in paragraph 7 of the impugned
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judgment and order dated 24 November 2014. They
submit that Rule 10(7) has to be interpreted reasonably and
the MPSC cannot be permitted to adopt unequal standards
in dealing with the situations which are more or less similar.
They point out that the MPSC in the two instances referred
to by the MAT have in fact maintained and operated wait
list beyond the period expressed in Rule 10(7) of the 2005
MPSC Rules. They submit that the MAT has quite rightly
taken into consideration these instances for issuing the
impugned directions now being assailed by the MPSC.
11] Finally, Mr. Aney whilst admitting that such a
contention was never raised before the MAT, submits that
the functions of a public service commission as set out in
Article 320 of the Constitution of India do not extend to the
determination of validity period of a wait list. He submits
that the functions of a public service commission are only
recommendatory and thereafter, it is for the concerned
State to decide upon the further course of action. On these
basis, Mr. Aney contends that Rule 10(7) of the 2005 MPSC
Rules, to the extent, it purports to prescribe the period
during which a wait list is to operate, is in fact, ultra vires
the powers of MPSC. Mr. Aney submits that on this
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additional ground as well, this Court, may not interfere with
the impugned judgments and orders made by the MAT.
12] Rival contentions now fall for our determination.
13] In order to appreciate the rival contentions, a brief
reference to certain salient and mostly undisputed facts is
necessary.
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14] By advertisement dated 23 December 2009 (MES –
2009), the MPSC invited applications to fill up two posts of
Assistant Executive Engineers by competitive examinations
(one of the post was reserved for members of the OBC
category). The respondent nos. 1 and 2 applied along with
several others and took part in the competitive examination
and other selection procedures. The results were declared
th
on 30 July 2011, in form of the merit list containing the
names of the two topper candidates who were styled as
' recommended candidates '. The list continued further and
the names of the respondent nos. 1 and 2 find mention in
the respective merit list, soon after the names of the
recommended candidates under the caption of ' non
recommended candidates '. Mr. Aney and Mr. Damle, on the
basis of this list, submit that a wait list was in fact
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maintained by the MPSC though, the MPSC chose not to use
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the nomenclature of wait list or reserve list. On 24
November 2011, the MPSC published a fresh advertisement
for filling up posts of Assistant Executive Engineers by
competitive examinations (MES-2011). There is no dispute
that such advertisement amounts to the declaration of date
of subsequent examination in the same category.
th
15] On 13 February 2002, the State, acting on basis of
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the recommendations made on 30 July 2011 issued
appointment orders to the recommended candidates.
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However, since by 21 July 2012, the two recommended
candidates in respective categories failed to join the
appointed posts, the State, cancelled their appointments.
Thereafter, the State Government vide requisition dated
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30 July 2012, which was received by the MPSC on 6
September 2012 sought for recommendations from the
st
MPSC to fill in the vacancies which arose on 21 July 2012
on account of non joining of the recommended candidates.
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16] The MPSC, on 18 July 2013, resolved not to make any
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recommendations in pursuance of the requisition dated 30
July 2012 mainly on the ground that the MPSC had already
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proceeded with selections in terms of MES-2011. The results
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of MES-2011 had been declared on 11 September 2012
and even the interviews of the successful candidates were
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concluded on 26 /27 September 2012.
17] The respondents, aggrieved by the MPSC's decision
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dated 18 July 2013 in refusing to recommend their names
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for appointments against vacancies, which arose on 21 July
2012 on account of non joining of the recommended
candidates, instituted Original Application No. 907 of 2013
before the MAT. By the impugned judgment and order, the
said OA was allowed by the MAT, which directed the MPSC
to recommend the names of the respondents to the posts of
Assistant Executive Engineer and Assistant Engineer
respectively. Hence, the present petitions by the MPSC.
18] From the record, it does appear that the MPSC, had
contended before the MAT that it was not required to
th
maintain any wait list by relying upon its decision dated 5
August 2011 and the consequent amendment of 2011 to
the MPSC Rules. The MAT has perhaps rightly held that the
decision not to maintain any wait list was to apply
prospectively and therefore, the contention of the MPSC
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based upon the decision dated 5 August 2011 and the
amendment of 2011 may not be correct. The amendment
of 2011 very clearly states that the amended rules shall
come into force from the date on which the minutes of the
meeting of the MPSC to amend the respective provisions
were approved. This means that the amended were to
th
come into force from 5 August 2011. Such amended rules,
therefore, could not apply to the selection process which
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had commenced with the advertisement dated 23
December 2009 and had even concluded with the
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declaration of results on 30 July 2011. The selection
process for MES-2009, therefore, had to be governed by the
unamended 2005 MPSC Rules.
19] The most relevant Rule for the purposes of this matter
is Rule 10(7) of the 2005 MPSC Rules, which reads as
follows:
“10. Appointment of Interview Committee and
declaration of result .
(1) …
(2) ….
(3) ….
(4) ….
(5) …...
(6) …....
(7) Wait-list.-- Based on the merit of the
Candidates in their respective category, the
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Commission may maintain a reserve list up to
the 10% of the vacancies in each category.
Provided further that the candidates from the
reserve list may be recommended to the
Government only if the candidates recommended
earlier are unable to accept the offer of
appointment for any reason. This waiting list shall
not be operative for any additional number of posts,
other than those advertised. Further this reserve list
and entire merit list shall be maintained
confidentially with the Secretary of the Commission
only. This reserve list shall lapse on the
declaration of date of subsequent
examination for the same category or after a
period of two years from the date of
preparation of this reserve list whichever is
earlier .”
[Emphasis supplied]
20] Since Rule 10(7) states that 'the Commission may
maintain a reserve list.......', the issue as to whether the
MPSC is bound to maintain a wait list or not, is still
arguable. The use of the expression 'may' at least prima
facie indicates that this is an enabling provision or that
some discretion is vested in the Commission in the matter
of maintenance of wait list. However, in the present case, it
is not necessary to rule one way or the other on this issue.
This is because, in the present case, even if we proceed on
the basis that there was a mandate upon the MPSC to
maintain a wait list and further, in pursuance of such
mandate, the MPSC had in fact maintained a wait list, even
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then the moot question which arises for consideration is
whether such wait list stands lapsed upon the declaration
of the date of subsequent examination for the same
category or after a period of two years from the date of
preparation of the wait list, whichever is earlier?
21] Now Rule 10(7) quite clearly and unambiguously
provides that the wait list shall lapse on the declaration of
date of subsequent examination for the same category or
after a period of two years from the date of preparation of
wait list, whichever is earlier. There is no dispute in the
present case that the date for subsequent examination for
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the same category was declared by MPSC on 24 November
2011. This means that the so-called wait list prepared by
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MPSC on 30 July 2011 stood lapsed on 24 November
2011, which is admittedly the date of declaration of
subsequent examination for the same category (MES-2011).
th
The MAT's direction to operate the wait list beyond 24
November 2011 will virtually amount to extending the
period of validity of the wait list much beyond the period
prescribed clearly and unambiguously in Rule 10(7).
According to us, such a direction, which runs contrary to the
statutory rules cannot be sustained. Such a direction is
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also contrary to several rulings of the Hon'ble Supreme
Court on the subject of preparation and operation of wait
lists in relation to recruitment in public services. Therefore,
reference to some such rulings will be appropriate.
22] In Gujarat State Dy. Executive Engineers' Association
(supra), the Hon'ble Supreme Court has held that wait list
prepared in service matters by competent authority is the
list of eligible and qualified candidates, who in order of
merit, are placed below the selected candidates. How
such list should operate and what is its nature may be
governed by the Rules . Such lists are prepared either under
the Rules or even otherwise mainly to ensure that the
working in the office does not suffer if the selected
candidates do not want for one or the other reasons or the
next selection of the examination is not held soon. A
candidate in the waiting list, in the order of merit, has a
right to claim that he may be appointed if one or the other
selected candidates do not join. But once the selected
candidate joins and no vacancy arises due to resignation
etc. or for any other reason within the period the list is to
operate under the Rules or within reasonable period where
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no specific period is provided , then the candidate from the
wait list has no right to claim appointment to any future
vacancy which may arise unless selection is held for it.
Such candidate has no vested right, except to the limited
extent indicated above. The waiting list prepared in an
examination conducted by the commission does not furnish
source of recruitment . If the waiting list in one examination
was to operate as an infinite stock for appointments, there
is a danger that the State Government may resort to the
device of not holding an examination for years together and
pick up candidates from the waiting list as and when
required. The constitutional discipline requires that this
Court should not permit such improper exercise of power
which may result in creating a vested interest and
perpetrate waiting list for the candidates of one
examination at the cost of entire set of fresh candidates
either from the open or even from service .
23] In Rajkishore Nanda (supra), the relevant rules had
provided that the list prepared under sub-rule (1) of Rule 11
– wait list shall remain valid for a period of one year from
the date of publication of the same or till drawal of the next
year's list , whichever is earlier. In this context, the Hon'ble
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Supreme Court has held that the appearance name of the
candidate in the select list does not give him a right of
appointment. Mere inclusion of the candidate's name in the
select list does not confer any right to be selected, even if
some of the vacancies remain unfilled. The selected list
cannot be treated as a reservoir for the purpose of
appointments, that vacancy can be filled up taking the
names from that list as and when it is so required. It is the
settled “ legal proposition that no relief can be granted to
the candidate if he approaches the court after the expiry of
the select list ”. In the present case, the so-called wait list
th
lapsed on 24 November 2011 and the Original Applications
were instituted by the respondents in the year 2013. The
grant of relief by MAT, in such circumstances, is contrary to
the ruling in Rajkishore Nanda (supra).
24] In Raj Rishi Mehra (supra), the Hon'ble Supreme Court
has held that the question whether candidates whose
names are included in the waiting list are entitled to be
appointed against the unfilled posts as of right, is no longer
res integra and must be answered in the negative. In the
absence of any stipulation in the recruitment rules imposing
duty on the appointing authority to make appointments
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from the wait list, the decision of the appointing authority
rejecting the claim of wait listed candidates could not be
faulted. In this case, the Hon'ble Supreme Court took
cognizance of the fact that fresh recruitment process had
already commenced and in such circumstances, there was
no question of operating the wait list. In the present case
as well, the fresh recruitment process MES-2011 had
already reached at an advance stage when requisition for
recommendations against unfilled posts was received by
the MPSC.
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25] In fact, this court, in its judgment and order dated 1
February 2018 in Writ Petition No. 11014 of 2013 ( The
Chairman, Maharashtra Public Service Commission
vs. Mahendra R. Shinde and Anr.) in which, one of us
( Smt. V.K. Tahilramani, Acting Chief Justice ), was a party has
set aside the judgment and order made by the MAT, which
had the effect of operating the wait list beyond the period of
its validity as prescribed in the standing order of the MPSC.
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Relying upon the standing order dated 21 November 1989,
which was applicable to the selection under consideration,
the Division Bench of this court has held that when the
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standing order is unambiguous that the wait list would be
operative till the declaration of the result of the examination
to be held in the subsequent year or for a period of two
years, if holding of next examination is substantially
delayed, the MAT, was not at all right in directing that the
MPSC recommends candidatures of the wait listed
candidates, even though, the validity of the wait list had
long expired.
26] The MAT, in paragraph 7 of the impugned judgment
th
and order dated 24 November 2014, has stated broadly
two reasons for grant of relief to the respondents. The first
is that in a situation where the MPSC declares the result of
the earlier examination very late and declares the dates of
the next examination quite early, the wait list which the
MPSC is required to maintain, will not operate for much
time if Rule 10(7) is to be interpreted literally. Therefore,
the MAT commends 'reasonable interpretation' of Rule 10(7)
and on the basis of such interpretation, proceeds to extend
the validity period of the wait list. The second reason
stated by the MAT is that in at least in two instances, the
MPSC has itself operated the wait list beyond the period of
its validity as prescribed in Rule 10(7). According to us,
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neither of the reasons are sufficient to ignore the clear and
unambiguous provisions of Rule 10(7) as also the rulings of
the Hon'ble Supreme Court on the subject of maintenance
and operation of wait lists.
27] Since, wait lists are neither meant to be sources of
recruitment nor meant to be perpetrated for the benefit of
candidates of one examination at the cost of entire set of
fresh candidates, there is absolutely nothing unreasonable
in the MPSC, in its Rules providing that the wait list will
lapse on the declaration of date of subsequent examination
for the same category. Therefore, merely because the
results of the first competitive examination may have been
delayed and the second competitive examination for the
same category is announced early, there is no question of
any unreasonability, as such involved in the exercise. Such
an exercise neither takes away any vested right of the wait
listed candidates nor does it deny such candidates the right
or the opportunity to take part in the fresh selection process
or to compete at the second competitive examination
which may have been announced.
28] Further, if the Rule is clear and unambiguous, then,
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there is no question of resorting to interpretation or re-
writing the Rule in the guise of interpretation. The rule of
literal interpretation cannot be departed from, unless such
interpretation leads to some absurdity or unless there is
something in the context, or in the object of the statute to
suggest the contrary. The golden rule is that the words of
the statute must prima facie be given their ordinary
meaning unless it can be shown that the legal context
requires a different meaning. Again, such meaning cannot
be departed from by the Courts in the light of their own
views as to policy, although Courts can adopt a purposive
interpretation, if reference to policy is necessary on account
of some ambiguities in the statute or such other causes of
like nature. In Raghunath Rai Bareja vs. Punjab
National Bank (2007) 2 SCC 230 , the Hon'ble Supreme
Court has held that the departure from the rule of literal
interpretation should be only in very rare cases and
ordinarily there should be a judicial restraint in this
connection.
29] The second reason stated by the MAT by relying upon
the two instances in which MPSC is alleged to have
extended the validity of the wait list beyond the period
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specified in Rule 10(7) is also untenable. Mr. Kulkarni and
Mr. Kango, did attempt to demonstrate that the two
instances offer no comparison to the present instances. Mr.
Aney and Mr. Damle, on the other hand urged that there is
nothing wrong in the observation of the MAT that the
instances were similar or comparable instances. According
to us, there is no necessity to examine in some details
whether the two instances were comparable or not.
Because, even if we proceed on the basis that the two
instances were indeed comparable, the moot question is
whether any plea of right to equality can at all be invoked
by the respondents in the facts and circumstances of the
present case. The reasoning of the MAT virtually comes to
endorsing negative equality or enforcing equality of
illegalities. Assuming that in two comparable instances, the
MPSC, in breach of its own rules may have operated the
wait list beyond the prescribed period of its validity, that by
itself, does not entitle others, in the name of equality, to
insist upon perpetuation of the illegalities.
30] In Kulwinder Pal Singh and anr. vs. State of
Punjab & Ors. - (2016) 6 SCC 532 and State of U.P.
and Os. vs. Rajkumar Sharma and Ors. - (2006) 3
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SCC 330, the Hon'ble Supreme Court has held that the
object of Article 14 of the Constitution is not to perpetuate
illegality and the said Article does not envisage negative
equalities. Even if the appointments have been made by
mistake or wrongly, that by itself, does not confer any right
upon another person who insist upon perpetuation of such
illegality.
31] In Chandigarh Admn. v. Jagjit Singh [(1995) 1
SCC 745] , the Hon'ble Supreme Court has held that the
mere fact that the respondent-Authority had passed a
particular order in the case of another person similarly
situated, can never be the ground for issuing a writ in
favour of the petitioner on the plea of discrimination. The
order in favour of the other person might be legal and valid
or it might not be. That has to be investigated first before it
can be directed to be followed in the case of the petitioner.
If the order in favour of the other person is found to be
contrary to law or not warranted in the facts and
circumstances of his case, it is obvious that such illegal or
unwarranted order could not be made the basis of issuing a
writ compelling the respondent-Authority to repeat the
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illegality to cause another unwarranted order. The
extraordinary and discretionary power of the High Court
under Article 226 cannot be exercised for such a purpose.
32] For the aforesaid reasons, we are unable to endorse
the reasoning in paragraph 7 of the impugned judgment
th
and order dated 24 November 2014 or to sustain the relief
awarded by the MAT to the respondents.
33] The last contention of Mr. Aney dealing with the
functions and powers of MPSC need not detain us in these
petitions. In the first place, such contention was never
raised by the respondents in their Original Applications
before the MAT. Secondly, such a contention finds no
reference even in the replies filed by the respondents to
these petitions. Thirdly, such a contention, is nothing but a
challenge to Rule 10(7) of the 2005 MPSC Rules, when in
fact, the respondents had themselves insisted that there
was an obligation upon the MPSC to maintain wait list in
terms of Rule 10(7) which they now seek to assail.
34] The respondents had challenged the MPSC
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(Amendment) Rules of 2011 by which the requirement to
maintain wait lists was sought to be done away with by the
MPSC, inter alia on the ground that such amendments could
not have been given any retrospective effect. As noted
earlier, the respondents seek to rely and benefit from Rule
10(7), which according to them mandates the maintenance
of wait list. However, the respondents, vide this last
contention, seek to challenge the validity of this Rule to the
extent it provides for the 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 a
belated challenge. In a matter of this nature, the Hon'ble
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 the
validity period of the wait list has lapsed in terms of the
Rules or where no such validity period is prescribed in the
Rules, then, within some reasonable period. For all these
reasons, we are unable to entertain the last contention of
Mr. Aney, which in effect, seeks to question the validity of
Rule 10(7) of the 2005 MPSC Rules.
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35] For all the aforesaid reasons, we allow both these
petitions, set aside the impugned judgments and orders and
make the Rule absolute in terms of prayer clauses (b) in
both the petitions. There shall be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)
CHANDKA
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5621 OF 2015
Maharashtra Public Service Commission ...Petitioners
Versus
Pankajkumar C. Dabhire & Ors. ...Respondents
WITH
WRIT PETITION NO. 4555 OF 2016
Maharashtra Public Service Commission ...Petitioners
Versus
Sandeep Bhaskar Varpe & Anr. ...Respondents
Mr. Ashutosh Kulkarni with S. S. Diwan for Petitioners in WP
5621 of 2015.
Mr. Avinash Kango for Petitioners in WP 4555 of 2016.
Mr. Shrihari G. Aney – Senior Advocate i/b. Mr. Pradeep Patil
with Mr. Pravin Gole for Respondent Nos. 1 and 2 in WP
5621 of 2015.
Mr. Atul Damle – Senior Advocate i/b. Mr. A. S. Pandire for
Respondent No. 1 in WP 4555 of 2016.
Mr. A. I. Patel – AGP for State in both Petitions.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
Date of Reserving the Judgment : 25 June 2018
Date of Pronouncing the Judgment : 03 July 2018
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COMMON JUDGMENT :
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
th th
judgments and orders dated 24 November 2014 and 27
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
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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
th
same, would lapse on 24 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
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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
th
24 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)
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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 reliance upon the
MPSC Rules of Procedure (Amendment) 2011 and its
th
decision dated 5 August 2011, which may obviate the
necessity of maintaining a wait list in case of recruitment by
competitive examinations. However, they point out that
th
this amendment entered into force only on 5 August 2011,
by which time, the selection process which had commenced
rd
with the advertisement dated 23 December 2009 had also
th
concluded with the declaration of results on 30 July 2011.
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They submit that the MAT has quite correctly held that the
Amendments of 2011 had no retrospective effect and on the
basis of the same, the MPSC was not at all justified in
refusing to maintain any wait list.
9] The learned Senior Advocates for the respondents
further submitted that factually, a wait list was in fact
maintained by the MPSC, though, the MPSC, did not choose
to call such list as a wait list. They submit that the MAT,
called for records, examined the files and has correctly held
the merit list containing the names of the recommended
candidates and the non recommended candidates , is in
fact, nothing but a merit list cum wait list prepared by the
MPSC. Since the names of the respondents on the basis of
their merit in the respective categories were indicated just
below the names of the recommended candidates , the MAT,
was quite justified in directing the MPSC to recommend the
names of the respondents for appointments since
admittedly, the recommended candidates , had failed to join
the posts within the prescribed period or even otherwise.
10] The learned counsel for the respondents defend the
reasoning of the MAT in paragraph 7 of the impugned
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th
judgment and order dated 24 November 2014. They
submit that Rule 10(7) has to be interpreted reasonably and
the MPSC cannot be permitted to adopt unequal standards
in dealing with the situations which are more or less similar.
They point out that the MPSC in the two instances referred
to by the MAT have in fact maintained and operated wait
list beyond the period expressed in Rule 10(7) of the 2005
MPSC Rules. They submit that the MAT has quite rightly
taken into consideration these instances for issuing the
impugned directions now being assailed by the MPSC.
11] Finally, Mr. Aney whilst admitting that such a
contention was never raised before the MAT, submits that
the functions of a public service commission as set out in
Article 320 of the Constitution of India do not extend to the
determination of validity period of a wait list. He submits
that the functions of a public service commission are only
recommendatory and thereafter, it is for the concerned
State to decide upon the further course of action. On these
basis, Mr. Aney contends that Rule 10(7) of the 2005 MPSC
Rules, to the extent, it purports to prescribe the period
during which a wait list is to operate, is in fact, ultra vires
the powers of MPSC. Mr. Aney submits that on this
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additional ground as well, this Court, may not interfere with
the impugned judgments and orders made by the MAT.
12] Rival contentions now fall for our determination.
13] In order to appreciate the rival contentions, a brief
reference to certain salient and mostly undisputed facts is
necessary.
rd
14] By advertisement dated 23 December 2009 (MES –
2009), the MPSC invited applications to fill up two posts of
Assistant Executive Engineers by competitive examinations
(one of the post was reserved for members of the OBC
category). The respondent nos. 1 and 2 applied along with
several others and took part in the competitive examination
and other selection procedures. The results were declared
th
on 30 July 2011, in form of the merit list containing the
names of the two topper candidates who were styled as
' recommended candidates '. The list continued further and
the names of the respondent nos. 1 and 2 find mention in
the respective merit list, soon after the names of the
recommended candidates under the caption of ' non
recommended candidates '. Mr. Aney and Mr. Damle, on the
basis of this list, submit that a wait list was in fact
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maintained by the MPSC though, the MPSC chose not to use
th
the nomenclature of wait list or reserve list. On 24
November 2011, the MPSC published a fresh advertisement
for filling up posts of Assistant Executive Engineers by
competitive examinations (MES-2011). There is no dispute
that such advertisement amounts to the declaration of date
of subsequent examination in the same category.
th
15] On 13 February 2002, the State, acting on basis of
th
the recommendations made on 30 July 2011 issued
appointment orders to the recommended candidates.
st
However, since by 21 July 2012, the two recommended
candidates in respective categories failed to join the
appointed posts, the State, cancelled their appointments.
Thereafter, the State Government vide requisition dated
th th
30 July 2012, which was received by the MPSC on 6
September 2012 sought for recommendations from the
st
MPSC to fill in the vacancies which arose on 21 July 2012
on account of non joining of the recommended candidates.
th
16] The MPSC, on 18 July 2013, resolved not to make any
th
recommendations in pursuance of the requisition dated 30
July 2012 mainly on the ground that the MPSC had already
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proceeded with selections in terms of MES-2011. The results
th
of MES-2011 had been declared on 11 September 2012
and even the interviews of the successful candidates were
th th
concluded on 26 /27 September 2012.
17] The respondents, aggrieved by the MPSC's decision
th
dated 18 July 2013 in refusing to recommend their names
st
for appointments against vacancies, which arose on 21 July
2012 on account of non joining of the recommended
candidates, instituted Original Application No. 907 of 2013
before the MAT. By the impugned judgment and order, the
said OA was allowed by the MAT, which directed the MPSC
to recommend the names of the respondents to the posts of
Assistant Executive Engineer and Assistant Engineer
respectively. Hence, the present petitions by the MPSC.
18] From the record, it does appear that the MPSC, had
contended before the MAT that it was not required to
th
maintain any wait list by relying upon its decision dated 5
August 2011 and the consequent amendment of 2011 to
the MPSC Rules. The MAT has perhaps rightly held that the
decision not to maintain any wait list was to apply
prospectively and therefore, the contention of the MPSC
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th
based upon the decision dated 5 August 2011 and the
amendment of 2011 may not be correct. The amendment
of 2011 very clearly states that the amended rules shall
come into force from the date on which the minutes of the
meeting of the MPSC to amend the respective provisions
were approved. This means that the amended were to
th
come into force from 5 August 2011. Such amended rules,
therefore, could not apply to the selection process which
rd
had commenced with the advertisement dated 23
December 2009 and had even concluded with the
th
declaration of results on 30 July 2011. The selection
process for MES-2009, therefore, had to be governed by the
unamended 2005 MPSC Rules.
19] The most relevant Rule for the purposes of this matter
is Rule 10(7) of the 2005 MPSC Rules, which reads as
follows:
“10. Appointment of Interview Committee and
declaration of result .
(1) …
(2) ….
(3) ….
(4) ….
(5) …...
(6) …....
(7) Wait-list.-- Based on the merit of the
Candidates in their respective category, the
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Commission may maintain a reserve list up to
the 10% of the vacancies in each category.
Provided further that the candidates from the
reserve list may be recommended to the
Government only if the candidates recommended
earlier are unable to accept the offer of
appointment for any reason. This waiting list shall
not be operative for any additional number of posts,
other than those advertised. Further this reserve list
and entire merit list shall be maintained
confidentially with the Secretary of the Commission
only. This reserve list shall lapse on the
declaration of date of subsequent
examination for the same category or after a
period of two years from the date of
preparation of this reserve list whichever is
earlier .”
[Emphasis supplied]
20] Since Rule 10(7) states that 'the Commission may
maintain a reserve list.......', the issue as to whether the
MPSC is bound to maintain a wait list or not, is still
arguable. The use of the expression 'may' at least prima
facie indicates that this is an enabling provision or that
some discretion is vested in the Commission in the matter
of maintenance of wait list. However, in the present case, it
is not necessary to rule one way or the other on this issue.
This is because, in the present case, even if we proceed on
the basis that there was a mandate upon the MPSC to
maintain a wait list and further, in pursuance of such
mandate, the MPSC had in fact maintained a wait list, even
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then the moot question which arises for consideration is
whether such wait list stands lapsed upon the declaration
of the date of subsequent examination for the same
category or after a period of two years from the date of
preparation of the wait list, whichever is earlier?
21] Now Rule 10(7) quite clearly and unambiguously
provides that the wait list shall lapse on the declaration of
date of subsequent examination for the same category or
after a period of two years from the date of preparation of
wait list, whichever is earlier. There is no dispute in the
present case that the date for subsequent examination for
th
the same category was declared by MPSC on 24 November
2011. This means that the so-called wait list prepared by
th th
MPSC on 30 July 2011 stood lapsed on 24 November
2011, which is admittedly the date of declaration of
subsequent examination for the same category (MES-2011).
th
The MAT's direction to operate the wait list beyond 24
November 2011 will virtually amount to extending the
period of validity of the wait list much beyond the period
prescribed clearly and unambiguously in Rule 10(7).
According to us, such a direction, which runs contrary to the
statutory rules cannot be sustained. Such a direction is
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also contrary to several rulings of the Hon'ble Supreme
Court on the subject of preparation and operation of wait
lists in relation to recruitment in public services. Therefore,
reference to some such rulings will be appropriate.
22] In Gujarat State Dy. Executive Engineers' Association
(supra), the Hon'ble Supreme Court has held that wait list
prepared in service matters by competent authority is the
list of eligible and qualified candidates, who in order of
merit, are placed below the selected candidates. How
such list should operate and what is its nature may be
governed by the Rules . Such lists are prepared either under
the Rules or even otherwise mainly to ensure that the
working in the office does not suffer if the selected
candidates do not want for one or the other reasons or the
next selection of the examination is not held soon. A
candidate in the waiting list, in the order of merit, has a
right to claim that he may be appointed if one or the other
selected candidates do not join. But once the selected
candidate joins and no vacancy arises due to resignation
etc. or for any other reason within the period the list is to
operate under the Rules or within reasonable period where
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no specific period is provided , then the candidate from the
wait list has no right to claim appointment to any future
vacancy which may arise unless selection is held for it.
Such candidate has no vested right, except to the limited
extent indicated above. The waiting list prepared in an
examination conducted by the commission does not furnish
source of recruitment . If the waiting list in one examination
was to operate as an infinite stock for appointments, there
is a danger that the State Government may resort to the
device of not holding an examination for years together and
pick up candidates from the waiting list as and when
required. The constitutional discipline requires that this
Court should not permit such improper exercise of power
which may result in creating a vested interest and
perpetrate waiting list for the candidates of one
examination at the cost of entire set of fresh candidates
either from the open or even from service .
23] In Rajkishore Nanda (supra), the relevant rules had
provided that the list prepared under sub-rule (1) of Rule 11
– wait list shall remain valid for a period of one year from
the date of publication of the same or till drawal of the next
year's list , whichever is earlier. In this context, the Hon'ble
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Supreme Court has held that the appearance name of the
candidate in the select list does not give him a right of
appointment. Mere inclusion of the candidate's name in the
select list does not confer any right to be selected, even if
some of the vacancies remain unfilled. The selected list
cannot be treated as a reservoir for the purpose of
appointments, that vacancy can be filled up taking the
names from that list as and when it is so required. It is the
settled “ legal proposition that no relief can be granted to
the candidate if he approaches the court after the expiry of
the select list ”. In the present case, the so-called wait list
th
lapsed on 24 November 2011 and the Original Applications
were instituted by the respondents in the year 2013. The
grant of relief by MAT, in such circumstances, is contrary to
the ruling in Rajkishore Nanda (supra).
24] In Raj Rishi Mehra (supra), the Hon'ble Supreme Court
has held that the question whether candidates whose
names are included in the waiting list are entitled to be
appointed against the unfilled posts as of right, is no longer
res integra and must be answered in the negative. In the
absence of any stipulation in the recruitment rules imposing
duty on the appointing authority to make appointments
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from the wait list, the decision of the appointing authority
rejecting the claim of wait listed candidates could not be
faulted. In this case, the Hon'ble Supreme Court took
cognizance of the fact that fresh recruitment process had
already commenced and in such circumstances, there was
no question of operating the wait list. In the present case
as well, the fresh recruitment process MES-2011 had
already reached at an advance stage when requisition for
recommendations against unfilled posts was received by
the MPSC.
st
25] In fact, this court, in its judgment and order dated 1
February 2018 in Writ Petition No. 11014 of 2013 ( The
Chairman, Maharashtra Public Service Commission
vs. Mahendra R. Shinde and Anr.) in which, one of us
( Smt. V.K. Tahilramani, Acting Chief Justice ), was a party has
set aside the judgment and order made by the MAT, which
had the effect of operating the wait list beyond the period of
its validity as prescribed in the standing order of the MPSC.
st
Relying upon the standing order dated 21 November 1989,
which was applicable to the selection under consideration,
the Division Bench of this court has held that when the
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standing order is unambiguous that the wait list would be
operative till the declaration of the result of the examination
to be held in the subsequent year or for a period of two
years, if holding of next examination is substantially
delayed, the MAT, was not at all right in directing that the
MPSC recommends candidatures of the wait listed
candidates, even though, the validity of the wait list had
long expired.
26] The MAT, in paragraph 7 of the impugned judgment
th
and order dated 24 November 2014, has stated broadly
two reasons for grant of relief to the respondents. The first
is that in a situation where the MPSC declares the result of
the earlier examination very late and declares the dates of
the next examination quite early, the wait list which the
MPSC is required to maintain, will not operate for much
time if Rule 10(7) is to be interpreted literally. Therefore,
the MAT commends 'reasonable interpretation' of Rule 10(7)
and on the basis of such interpretation, proceeds to extend
the validity period of the wait list. The second reason
stated by the MAT is that in at least in two instances, the
MPSC has itself operated the wait list beyond the period of
its validity as prescribed in Rule 10(7). According to us,
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neither of the reasons are sufficient to ignore the clear and
unambiguous provisions of Rule 10(7) as also the rulings of
the Hon'ble Supreme Court on the subject of maintenance
and operation of wait lists.
27] Since, wait lists are neither meant to be sources of
recruitment nor meant to be perpetrated for the benefit of
candidates of one examination at the cost of entire set of
fresh candidates, there is absolutely nothing unreasonable
in the MPSC, in its Rules providing that the wait list will
lapse on the declaration of date of subsequent examination
for the same category. Therefore, merely because the
results of the first competitive examination may have been
delayed and the second competitive examination for the
same category is announced early, there is no question of
any unreasonability, as such involved in the exercise. Such
an exercise neither takes away any vested right of the wait
listed candidates nor does it deny such candidates the right
or the opportunity to take part in the fresh selection process
or to compete at the second competitive examination
which may have been announced.
28] Further, if the Rule is clear and unambiguous, then,
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there is no question of resorting to interpretation or re-
writing the Rule in the guise of interpretation. The rule of
literal interpretation cannot be departed from, unless such
interpretation leads to some absurdity or unless there is
something in the context, or in the object of the statute to
suggest the contrary. The golden rule is that the words of
the statute must prima facie be given their ordinary
meaning unless it can be shown that the legal context
requires a different meaning. Again, such meaning cannot
be departed from by the Courts in the light of their own
views as to policy, although Courts can adopt a purposive
interpretation, if reference to policy is necessary on account
of some ambiguities in the statute or such other causes of
like nature. In Raghunath Rai Bareja vs. Punjab
National Bank (2007) 2 SCC 230 , the Hon'ble Supreme
Court has held that the departure from the rule of literal
interpretation should be only in very rare cases and
ordinarily there should be a judicial restraint in this
connection.
29] The second reason stated by the MAT by relying upon
the two instances in which MPSC is alleged to have
extended the validity of the wait list beyond the period
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specified in Rule 10(7) is also untenable. Mr. Kulkarni and
Mr. Kango, did attempt to demonstrate that the two
instances offer no comparison to the present instances. Mr.
Aney and Mr. Damle, on the other hand urged that there is
nothing wrong in the observation of the MAT that the
instances were similar or comparable instances. According
to us, there is no necessity to examine in some details
whether the two instances were comparable or not.
Because, even if we proceed on the basis that the two
instances were indeed comparable, the moot question is
whether any plea of right to equality can at all be invoked
by the respondents in the facts and circumstances of the
present case. The reasoning of the MAT virtually comes to
endorsing negative equality or enforcing equality of
illegalities. Assuming that in two comparable instances, the
MPSC, in breach of its own rules may have operated the
wait list beyond the prescribed period of its validity, that by
itself, does not entitle others, in the name of equality, to
insist upon perpetuation of the illegalities.
30] In Kulwinder Pal Singh and anr. vs. State of
Punjab & Ors. - (2016) 6 SCC 532 and State of U.P.
and Os. vs. Rajkumar Sharma and Ors. - (2006) 3
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SCC 330, the Hon'ble Supreme Court has held that the
object of Article 14 of the Constitution is not to perpetuate
illegality and the said Article does not envisage negative
equalities. Even if the appointments have been made by
mistake or wrongly, that by itself, does not confer any right
upon another person who insist upon perpetuation of such
illegality.
31] In Chandigarh Admn. v. Jagjit Singh [(1995) 1
SCC 745] , the Hon'ble Supreme Court has held that the
mere fact that the respondent-Authority had passed a
particular order in the case of another person similarly
situated, can never be the ground for issuing a writ in
favour of the petitioner on the plea of discrimination. The
order in favour of the other person might be legal and valid
or it might not be. That has to be investigated first before it
can be directed to be followed in the case of the petitioner.
If the order in favour of the other person is found to be
contrary to law or not warranted in the facts and
circumstances of his case, it is obvious that such illegal or
unwarranted order could not be made the basis of issuing a
writ compelling the respondent-Authority to repeat the
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illegality to cause another unwarranted order. The
extraordinary and discretionary power of the High Court
under Article 226 cannot be exercised for such a purpose.
32] For the aforesaid reasons, we are unable to endorse
the reasoning in paragraph 7 of the impugned judgment
th
and order dated 24 November 2014 or to sustain the relief
awarded by the MAT to the respondents.
33] The last contention of Mr. Aney dealing with the
functions and powers of MPSC need not detain us in these
petitions. In the first place, such contention was never
raised by the respondents in their Original Applications
before the MAT. Secondly, such a contention finds no
reference even in the replies filed by the respondents to
these petitions. Thirdly, such a contention, is nothing but a
challenge to Rule 10(7) of the 2005 MPSC Rules, when in
fact, the respondents had themselves insisted that there
was an obligation upon the MPSC to maintain wait list in
terms of Rule 10(7) which they now seek to assail.
34] The respondents had challenged the MPSC
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(Amendment) Rules of 2011 by which the requirement to
maintain wait lists was sought to be done away with by the
MPSC, inter alia on the ground that such amendments could
not have been given any retrospective effect. As noted
earlier, the respondents seek to rely and benefit from Rule
10(7), which according to them mandates the maintenance
of wait list. However, the respondents, vide this last
contention, seek to challenge the validity of this Rule to the
extent it provides for the 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 a
belated challenge. In a matter of this nature, the Hon'ble
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 the
validity period of the wait list has lapsed in terms of the
Rules or where no such validity period is prescribed in the
Rules, then, within some reasonable period. For all these
reasons, we are unable to entertain the last contention of
Mr. Aney, which in effect, seeks to question the validity of
Rule 10(7) of the 2005 MPSC Rules.
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35] For all the aforesaid reasons, we allow both these
petitions, set aside the impugned judgments and orders and
make the Rule absolute in terms of prayer clauses (b) in
both the petitions. There shall be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)
CHANDKA
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