Full Judgment Text
2024:BHC-AS:12561-DB
8547.21-wp+.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8547 OF 2021
WITH
INTERIM APPLICATION NO. 52 OF 2024
(FOR AMENDMENT)
Vinod Fakira Marathe & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 391 OF 2023
Sandhya Gaikwad & Ors. .. Petitioners
Versus
High Court of Judicature at Bombay
& Ors. .. Respondents
WITH
INTERIM APPLICATION NO. 50 OF 2024
IN
WRIT PETITION NO. 391 OF 2023
(FOR ADDING APPLICANT AS A PETITIONER)
Pallavi Gajanan Itware .. Applicant
In the matter between :
Sandhya Gaikwad & Ors. .. Petitioners
Versus
High Court of Judicature at Bombay
& Ors. .. Respondents
WITH
WRIT PETITION NO. 1219 OF 2023
Narendra Madhukar Mali .. Petitioner
Versus
High Court of Judicature at Bombay & Anr. .. Respondents
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WITH
WRIT PETITION NO. 1699 OF 2024
Dinesh Suryabhan Patil & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 1853 OF 2022
Adinath Kisan Waghmare & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 10512 OF 2022
Rahul Vaman Mate .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 10514 OF 2022
Pooja Munjeba Sakhare & Ors. .. Petitioners
Versus
The State of Maharashtra & Anr. .. Respondents
WITH
WRIT PETITION NO. 1700 OF 2024
Renuka Madhukar Kadam .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 14912 OF 2023
Rohidas Bhausaheb Naikwadi .. Petitioner
Versus
High Court of Judicature at Bombay & Anr... Respondents
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WITH
WRIT PETITION NO. 8495 OF 2021
Rajshri Milkiram Tembhare & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8517 OF 2021
Ganpat Uttam Gurav & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8519 OF 2021
Jagruti Sudhir Patil & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8513 OF 2021
Anantrao Ghanshyam Chandrashekhar
& Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8503 OF 2021
Swapnil Udaram Hadau & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8507 OF 2021
Praful Namdeo Kamdi & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
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WITH
WRIT PETTION NO. 8510 OF 2021
Trisharam Popat Kamble & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8546 OF 2021
Nitin Balkrishna Chinchore & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8500 OF 2021
Mohan Chandrakant Karande & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8501 OF 2021
Hemant Tanaji Jadhav & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8903 OF 2021
Chhatragun Anurath Kale & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8515 OF 2021
Omkar Dattatray Ukirde & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
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WITH
WRIT PETITION NO. 8509 OF 2021
Lakhan Dayaram Rathod & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8514 OF 2021
Sopan Vitthalrao Harkal & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8518 OF 2021
Shivaji Baban Dalvi & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8505 OF 2021
Vivek Sunil Jadhav & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8516 OF 2021
Gopal Vasanta Chavhan & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8511 OF 2021
Mahesh Apparao Choudhari & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
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WITH
WRIT PETITION NO. 8502 OF 2021
Reshma Arun Malshe & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8910 OF 2021
Jitendra Pramod Panaskar & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8908 OF 2021
WITH
INTERIM APPLICATION NO. 53 OF 2024
(I.A. FOR AMENDMENT)
Milind Manohar Vhatkar & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8911 OF 2021
Sourabh Vitthal Kaskar & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO. 8912 OF 2021
Satish Harsing Kakarwal & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
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Mr. J. P. Cama, Senior Advocate i/b. Ms. Sanskruti Yagnik with
Dr. Uday Warunjikar i/b. Mr. Siddhesh Pilankar for the petitioners
in Writ Petition Nos. 391/2023, 1219/2023 & 14912/2023 and
8518/2021.
Dr. Uday P. Warunjikar i/b. Mr. Sumit Kate for the petitioner in
WP/8503/2021 and IA/50/2024.
Mr. Mihir Desai, Senior Advocate with Ms. Sanskruti Yagnik and
Mr. S. B. Talekar with Mr. Shubham Gurav with Mr. Vaibhav Ugle
and Ms. Madhavi Ayyappan i/b. Talekar & Associates for the
petitioners in Writ Petition No.8547/2021 with IA/52/2024, and
Writ Petition Nos. 1699/2024, 1853/2022, 10512/2022,
10514/2022, 1700/2024, 8495/2021, 8517/2021, 8519/2021,
8513/2021, 8507/2021, 8510/2021, 8546/2021, 8500/2021,
8501/2021, 8903/2021, 8515/2021, 8509/2021, 8514/2021,
8505/2021, 8516/2021, 8511/2021, 8502/2021, 8910/2021,
8908/2021 a/w IA/53/2024, 8911/2021 and 8912/2021.
Dr. Milind Sathe, Senior Advocate with Mr. Rahul Nerlekar for
Respondent / High Court, Bombay in all Petitions.
Mr. P. P. Kakade Government Pleader and Mr. N. C. Walimbe,
Addl. Govt. Pleader with Mr. O. A. Chandurkar Addl. Government
Pleader with Ms. N. M. Mehra, AGP with Mr. V. M. Mali, AGP for
Respondent/State in all Petitions.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
th
RESERVED ON : 15 FEBRUARY, 2024
th
PRONOUNCED ON : 14 MARCH, 2024
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard learned Counsel for the parties and perused the
records available before us on these Writ Petitions.
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2. Since the common questions of law and facts arise in these
Petitions, this batch of Writ Petitions is being decided by the
common judgment and order which follows:
ISSUES
3. Life of wait list prepared by a selection body is the
question which has been raised in this batch of Writ Petitions for
our consideration. The Petitioners assert that the select/wait list
in this case shall be operative indefinitely and will breath its last
only once it is exhausted, that is to say, every single candidate
borne on such a list is to be offered appointment.
4. The issue raised is no more res-integra and stands settled
by Hon’ble Supreme Court way back in the year 1994 vide
judgment in the case of Gujarat State Dy. Executive
1
Engineers Association Vs. State of Gujarat & Ors. . In
paragraph 9 of the said report, the Hon’ble Supreme Court has
observed thus:
“9. A waiting list prepared in an examination
conducted by the Commission does not furnish a
source of recruitment. It is operative only for the
contingency that if any of the selected candidates
does not join then the person from the waiting list
1 1994 Supp (2) SCC 591
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may be pushed up and be appointed in the vacancy
so caused or if there is some extreme exigency the
Government may as a matter of policy decision pick
up persons in order of merit from the waiting list. But
the view taken by the High Court that since the
vacancies have not been worked out properly,
therefore, the candidates from the waiting list were
liable to be appointed does not appear to be sound.
This practice, may result in depriving those
candidates who become eligible for competing for the
vacancies available in future. 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.”
5. Accordingly, we find ourselves unable to agree with the
submissions made and contentions raised on behalf of the
Petitioners for the reasons to follow:
FACTS NARRATED AND SUBMISSIONS MADE BY THE
RESPECTIVE PARTIES:
6. For filling up various Group-C and Group-D posts on the
establishment of District Judiciary in State of Maharashtra, an
th
advertisement was issued on 28 March 2018 inviting on-line
Applications from eligible candidates. The posts for which the
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recruitment was to be made pursuant to the advertisement
th
dated 28 March 2018 included the posts of Junior Clerk and
Peon/Hamal. According to the advertisement, the total number
of vacancies advertised was 8921. The said advertisement
contains “Instructions to the Candidates” and according to clause
46 of the said Instructions, the select/wait list was to be valid for
such period as may be prescribed by the High Court. The
advertisement and the instructions attached thereto, thus, do
not provide for any life for the select/wait list for its operation; it
was rather provided that select/wait list shall be valid for a
period to be prescribed by the High Court. Pursuant to the
aforesaid advertisement, the Petitioners submitted their
Applications and accordingly, selection was held and a
select/wait list was also published. It is to be noticed that the
select/wait list was published by each District.
7. These Petitions concern themselves with the selection held
for the posts in question to be filled-in at establishments of
various Districts Courts, however, for the sake of convenience we
will narrate the facts pertaining to District Thane. On the basis
th
of selection held in pursuance of the advertisement dated 28
March 2018, the Registrar, District Thane published select/wait
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rd
list on 3 November 2018 which comprised of 244 candidates as
against 254 vacancies advertised for the post of Clerk. Another
st
list was published on 21 November 2024 which comprised of
141 candidates as against 147 vacancies advertised against the
rd
post of Peon. The select/wait lists published on 3 November
st
2018 and 21 November 2018 clearly stipulated that the life of
such lists shall be of two years and accordingly, as per this
th
prescription, these select/wait lists lasted on 18 November
st
2020 and 21 November 2020, respectively. Thereafter the
Chief Justice of this Court had granted an extension of further
period of one year to the select/wait list for the post of
Stenographer (Lower Grade), Junior Clerk and Peon/Hamal
prepared on the basis of recruitment process -2018 which was
communicated to all the Principal District and Sessions Judges
and all other Heads of Departments of the Districts by the
Registrar (Inspection-I) of this Court vide its communication
th
dated 10 September 2020. The Registrar General also by
th
means of a letter dated 17 September 2020 addressed to all
the Principal District Judges in the State of Maharashtra directed
to fill up the vacancies as per the select list prepared on the
basis of the recruitment process-2018.
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th
8. Vide a letter dated 15 September 2021, the District and
Sessions Judge, Thane wrote to the Registrar General of this
Court requesting therein that extension be granted to the
select/wait list prepared pursuant to the recruitment process-
2018. Such requests were also received by the Registrar
General from the other Districts as well. The Petitioners also
made various representations including the representations
th th
dated 20 March 2021 and 11 November 2021 requesting
therein to grant appointment to them pursuant to their order of
merit in the select/wait list prepared on the basis of recruitment
process-2018. The said request made by the Principal District
Judges and the Petitioners was considered by the Hon’ble
Administrative Judges Committee and the same was rejected
with a further decision that fresh process of recruitment be
started to fill-up vacant posts forthwith. This decision of the
Hon’ble Administrative Judges Committee was communicated to
all concerned by the Registrar (Inspection-I) by means of his
th
letter dated 25 November 2021. It is this decision of the
Hon’ble Administrative Judges Committee as communicated by
th
the Registrar (Inspection-I) by means of letter dated 25
November 2021, that is under challenge in these Writ Petitions.
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9. A fresh selection process was started by issuing a notice
th
dated 29 November 2023 issued by the Registrar General of
this Court informing that the central online recruitment process
be conducted for filling up the vacancies against the posts of
Stenographer-III, Junior Clerk and Peon/Hamal in various
District Judiciary in the State of Maharashtra. This notice dated
th
29 November 2023 has also been challenged by the Petitioners
on the ground that unless the select/wait list prepared on the
basis of recruitment process-2018 is exhausted and all the
candidates borne on the said list are appointed, no fresh
recruitment process can be legally permitted to be undertaken
by the High Court.
10. Impeaching the impugned decision rejecting the prayer for
extension of time for operation of the select/wait list prepared on
the basis of recruitment process-2018 and the decision to initiate
fresh process of selection, it has been argued vehemently by the
learned Counsel representing the Petitioners that as per Rule 7
of the Recruitment Rules, which is applicable for appointment
against Group-C and Group-D posts in the establishment of
Districts in the State of Maharashtra, the select/wait list shall
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operate till it is exhausted and in this view, the impugned
decisions are illegal. Our attention in this regard has been drawn
to paragraph 577 falling under Chapter XXXI of the Civil Manual
and has been thus argued that in terms of paragraph 577(iii),
rules for the recruitment of candidates to Group-C and Group-D
posts in District judiciary are contained in Appendix-A attached
to Government Resolution of the Home Department bearing
th
No.Misc.1055/62546-III, dated 26 December 1957, as
amended by Government Resolution of Law and Judiciary
nd
Department, No.DCE 5265/3643-J dated the 22 February 1971.
These Recruitment Rules are included in Appendix-A attached to
th
the said Government Resolution dated 26 December 1957.
Appendix-A bears a heading “Recruitment Rules for recruitment
of Group-C and Group-D Services in the Subordinate Judicial
Service”. The said Appendix-A contains Rules relating to the
process to be adopted for selection to Group-C and Group-D
posts in the District judiciary. According to Rule 7 a list of
candidates as provided in Rule 1 is to be prepared of each
selected candidate on the basis of merit and in case merit is
equal, on the basis of age. Such select list is to be signed and
dated by the members of the Recruitment Committee which shall
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continue to remain in force till it is exhausted. Rule 7 (a) and
(b) of the Rules available in Appendix-A appended to the
th
Government Resolution dated 26 December 1957 as amended
nd
by Government Resolution dated 22 February 1971 is extracted
hereunder:
“(a) The Committee shall fix the seniority of each
selected candidate on merit and merit being equal on
age and prepare a list of candidates in separate parts
as provided in Rule 1. Such list shall be signed and
dated by the members of the Recruitment Committee
and shall continue to remain in force till it is
exhausted.
(b) The seniority once assigned to a candidate in the list
shall be final and shall not be disturbed on any account.
While making additions to the list, the seniority fixed on
the previous occasion shall not be disturbed.”
11. Learned Counsel for the Petitioners have also drawn our
attention to Clause 46 of the ‘Common Instructions to all
th
candidates’ attached to the advertisement dated 28 March 2018
which provides that select/wait list will be valid for such period
as may be prescribed by the High Court. Clause 46 of the
instructions issued to the candidates is quoted hereunder:
“46. The Select List / Wait List will be valid for such
period as may be prescribed by the High Coiurt.”
12. Ordinarily, in service jurisprudence, the select list and wait
list prepared on the basis of selection held by the selection body
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connote two different lists conveying two different meanings and
purpose. The select list bears the names of selected candidates
which is normally prepared on the basis of merit attained by the
candidates who participate in the selection and is sent to the
appointing authority with recommendation to make
appointments of the candidates borne on such select list.
Simultaneously, sometimes, a wait list is also prepared by the
selection body which is utilized by the appointing authority for
making appointments against the vacancies which could not be
filled-in on account of refusal of the candidates to accept
appointment or in certain other exigencies such as a situation
which may arise in case the appointing authority does not accept
the recommendation in respect of any particular candidate.
Thus, the purpose of preparation of wait list after conclusion of
selection held by a selection body is to provide a list of
candidates to be considered for appointment if appointment
based on the select list for some reason is not made.
13. However, in the instant case, on the basis of recruitment
process 2018, two separate lists termed as select list and wait
rd
list were not prepared. The lists published on 3 November
st
2018 and 21 November 2018 in respect of District Thane are
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descried as select/wait list. The said lists also provide that the
same shall be valid for a period of two years. Thus, we have to
comprehend the facts of the case and the applicable law in the
light of the list which has been described as select list/wait list
which is a single list and not two separate lists, prepared on the
basis of the recruitment process 2018.
14. Learned Counsel representing the Petitioners have
emphasized that the provisions contained in Rule 7 are statutory
in nature which provides that the list of candidates prepared on
the basis of the recruitment process 2018 shall continue to
remain in force till it is exhausted and as such, unless and until
all the candidates borne on the said list are given/offered
appointment, such list has to remain in operation by virtue of the
provisions contained in Rule 7. It is further contended on behalf
of the Petitioners that the prescription available in Clause 46 of
the ‘instructions to candidates’ appended to the advertisement
th
dated 28 March 2018 thus, runs contrary to the statutory
prescription available in Rule 7 and hence, it cannot be given
effect to. We may reiterate that clause 46 provides that the
select/wait list will be valid for such period as may be prescribed
by the High Court.
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15. In the aforesaid view of the matter, learned Counsel
appearing for the Petitioners have emphatically argued that Rule
7 does not give any discretion to the High Court or any of its
authorities, including the Chief Justice to provide for anything
contrary to the prescription available in Rule 7 and hence the
decision of the Hon’ble Administrative Judges Committee
refusing extension to the said select/wait list till it is exhausted,
is completely unlawful being contrary to statutory provisions
contained in Rule 7. Further argument in support of the case
set-up by the Petitioners is that any decision to curtail the life of
select/wait list in the instant case could be taken only by the
Full-House of this Court and not by the Hon’ble Administrative
Judges Committee. Thus, it has been argued that the decision
not to extend the period of operation of the select/ wait list as
communicated by the Registrar (Judicial-1) of this Court, vide its
th
letter dated 25 November 2011, is without jurisdiction, hence,
it is liable to be quashed. It is also the case of the Petitioners as
set up in these Petitions that since the select/wait list prepared
on conclusion of the recruitment process 2018 is yet not
exhausted in the sense that every candidate borne on the said
list has not been offered/given appointment, the impugned
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decision by the Hon’ble Administrative Judges Committee to
initiate fresh process of selection to fill up vacant posts is also
erroneous being without jurisdiction.
16. On the strength of the aforesaid submissions, the learned
Counsel representing the Petitioners have urged that the
impugned decision be quashed and accordingly, a direction be
issued to issue appointment orders in favour of the Petitioners
for appointing them against the respective posts on the basis of
recruitment process 2018.
17. As opposed to the submissions made on behalf of the
Petitioners, Dr. Milind Sathe, learned Senior advocate
representing the High Court has argued, inter alia, that the Writ
Petitions are highly misconceived and the submissions made on
their behalf are highly erroneous on various counts. Dr. Sathe
has stated that clause 46 appended to the advertisement dated
th
28 March 2018 was all along known to the Petitioners, however,
since they did not raise any objection to the same, the
Petitioners are estopped from urging any such issue before this
Court. It has also been argued by Dr. Sathe that merely because
of inclusion of the Petitioners in the select/wait list does not
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confer any legally enforceable or indefeasible right in their
favour. It is also submitted by Dr. Sathe that decision not to
extend the validity of the list and to commence fresh recruitment
process was taken on the basis of consideration of totality of
circumstances and entire material on record and in public
interest which is bona fide.
18. Dr. Sathe, learned Senior Advocate has also stated that any
wait/select list cannot be permitted legally to operate indefinitely
for the reason that such operation of a list for indefinite period
will be hit by Article 16 of the Constitution of India, inasmuch as
it will curtail fundamental rights of fresh candidates of
participation in recruitment process and their consideration for
selection in public services/posts.
19. It is also the case as set-up by Dr. Sathe that the number
th
of posts advertised vide advertisement dated 28 March 2018
and the candidates included in the list captioned as “select list
/wait list” was not based on any uniform basis in all the Districts
but was based on the requisitions received from individual
districts and some districts had requisitioned the numbers twice
or four times the actual vacancy.
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20. Drawing our attention to Rule 4 as available in Appendix-A
th
of the Government Resolution dated 26 December 1957 as
nd
amended by subsequent Government Resolution dated 22
February 1997, it has been argued by Dr. Sathe that the manner
in which the said Rule provides for enlistment of candidates is
such that it does not reflect the actual vacancies available to be
filled-in. For convenience Rule 4 of Appendix-A is extracted
hereunder:
“4. The number of candidates to be enlisted
annually in such category specified in rule (1) shall be
such as to make the total number in each category
equal to (a) the average temporary vacancies which
occurred during the previous two years plus (b) the
expected permanent vacancies during the year for
which the enlistment is proposed to be made and (c)
an addition of 20 per cent of (a) and (b) to meet
unexpected contingencies and wastage.”
21. According to Dr. Sathe, Rule 4, thus, prescribes that the
number of candidates to be enlisted shall be such as to make the
total number of vacancies in each category equal to (a) the
average temporary vacancies which occurred during the previous
two years, plus (b) the expected permanent vacancies during the
year in which enlistment is proposed and (c) an addition of 20%
of the average temporary vacancies and the vacancies expected,
to meet unexpected contingencies and wastage. Thus, his
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submission is that the list prepared in accordance with the
provisions of Rule 4 will never reflect the actual vacancies and
hence in case any appointment is permitted to be made from
such select/wait list, which is prepared not keeping in mind the
actual vacancies, the same would be clearly hit by Article 16 of
the Constitution of India for the reason that such a course would
result in making the appointments against the vacancies which
were not available at the time of advertisement.
22. On behalf of the High Court, it is also the argument that
the Civil Manual is a collection of administrative instructions and
is not in the nature of statutory rules or delegated legislation. It
is also the case set up by Dr. Sathe that admittedly, Appendix-A
th
appended to the Government Resolution dated 26 December
1957 as amended vide subsequent Government Resolution dated
nd
22 February 1971 though contains certain prescriptions
described as Recruitment Rules, however, the same have been
issued by the State Government in exercise of its ordinary
executive functions and not in exercise of its statutory functions
under any enactment or for that matter under Article 309 of the
Constitution of India. In light of this, Dr. Sathe has argued that
since the Recruitment Rules available in Appendix-A to the above
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referred Government Resolution are not statutory in nature;
rather they, at the most, can be said to be executive
instructions, they are to be treated to be guidelines which can
always be superseded, amended or even annulled by High Court
by means of its decision which will be referable to Article 227
read with Article 235 of the Constitution of India.
23. It has also been argued by Dr. Sathe that the High Court
has every authority and power to deviate from the
administrative/executive instructions which in the instant case
are available in Appendix-A attached to the above referred
Government resolutions, though described as Rules and
accordingly, clause 46 was introduced in the advertisement. Our
attention has also been drawn to the resolution passed by Full-
nd
House of this Court on 2 May 1981 according to which the
decision in the matters relating to (a) promotion of Assistant
Judge as a District Judge if such promotion involves supersession
of any senior judge or judges, (b) appointment of a Civil Judge
as a Civil Judge, Senior Division, otherwise than in accordance
with the order of seniority (c) appointment of a Civil Judge as a
Metropolitan Magistrate or a Judge of the Court of Small Cause
(d) promotion of a Metropolitan Magistrate as an Additional Chief
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Metropolitan Magistrate or as the Chief Metropolitan Magistrate,
and (e) promotion of a Judge of Small Cause Court in Bombay as
an Additional Chief Judge or as the Chief Judge of that Court has
to be taken by the Full-House of the High Court.
nd
As per the said resolution dated 2 May 1981, in respect of
any other matter, the decision may be taken in accordance with
law and practice followed and in accordance with the directions
which the Chief Justice may issue from time to time. It has,
thus, been argued by Dr. Sathe that the decision to prescribe
clause 46 of the advertisement that the select/wait list shall be
valid for a period as may be prescribed by the High Court,
cannot be said to be without jurisdiction and similarly, the
decision taken by the Hon’ble Administrative Judges Committee
not to extend the life of the select/wait list is also not without
jurisdiction, as such subject does not fall within the subjects to
be taken up by the Full-House of this Court in terms of the
nd
resolution of the Full-House meeting of this Court dated 2 May
1981.
24. Lastly, it has been urged by Dr. Sathe that all the decisions
in the instant case have been taken by the High Court having
regard to the facts and circumstances of the case and in public
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interest keeping in view the legal principle that no appointment
against the vacancy not advertised can be made, otherwise it
will be clearly hit by Article 16 of the Constitution of India. He
has also stated that in absence of any mala fide on the part of
the authorities of this Court in taking the impugned decisions for
not extending the life of the select/wait list and further directing
to initiate a fresh process of recruitment, the Writ Petitions are
liable to be dismissed.
DISCUSSION AND ANALYSIS:
25. It is well settled principle of service jurisprudence
surrounding appointment in public services/posts that mere
participation or even selection does not confer any enforceable
or indefeasible right in a candidate to seek appointment. The
employer is not under any legal duty to fill-up all or any of the
vacancies, however, if any such decision not to fill-up vacancy is
to be taken, the same can be taken for bona fide and
appropriate reasons and if vacancies are filled-in, the employer
is bound to respect the comparative merit of the candidates on
the basis of the selection held for the purpose and no
discrimination can be permitted. Hon’ble Supreme Court in the
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2
case of Shankarsan Dash Vs. Union of India has held that
on notification of vacancies for appointment if adequate number
of candidates are found fit, they do not acquire any indefeasible
right to be appointed. The reason given for such proposition is
that an advertisement/notification for filling-up vacancies by way
of selection is merely an invitation to the qualified candidates to
apply for recruitment and on their selection they do not acquire
any right to be offered appointment against such posts.
Shankarsan Dash (supra) refers another judgment of Hon’ble
Supreme Court in the case of State of Haryana Vs. Subhash
3
Chander Marwaha , where Hon’ble Supreme Court has
expressly ruled that existence of vacancies does not give legal
right to a selected candidate.
26. It has been the consistent view of Hon’ble Supreme Court.
In this regard reference may be had to another judgment of
Hon’ble Supreme Court in the case of Kulwinder Pal Singh
4
and Anr. Vs. State of Punjab and Ors. Paragraphs 10, 11
and 12 of this report are extracted hereinbelow:
10. It is fairly well settled that merely because the name of
a candidate finds place in the select list, it would not give
2 (1991) 3 SCC 47
3 (1974) 3 SCC 220
4 (2016) 6 SCC 532
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him indefeasible right to get an appointment as well. The
name of a candidate may appear in the merit list but he
has no indefeasible right to an appointment (vide Food
Corporation of India v. Bhanu Lodh [Food Corporation of
India v. Bhanu Lodh, (2005) 3 SCC 618 : 2005 SCC (L&S)
433] , All India SC & ST Employees' Assn. v. A. Arthur Jeen
[All India SC & ST Employees' Assn. v. A. Arthur Jeen,
(2001) 6 SCC 380 : (2007) 2 SCC (L&S) 362] and UPSC v.
Gaurav Dwivedi [UPSC v. Gaurav Dwivedi, (1999) 5 SCC
180 : 1999 SCC (L&S) 982] .
11. This Court again in State of Orissa v. Rajkishore Nanda
[State of Orissa v. Rajkishore Nanda, (2010) 6 SCC 777 :
(2010) 2 SCC (L&S) 313] , held as under : (SCC p. 783,
paras 14 & 16)
“ 14. A person whose name appears in the select list does not
acquire any indefeasible right of appointment. Empanelment at
best is a condition of eligibility for the purpose of appointment
and by itself does not amount to selection or create a vested
right to be appointed. The vacancies have to be filled up as per
the statutory rules and in conformity with the constitutional
mandate.
16. A select 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.”
12. In Manoj Manu v. Union of India [Manoj Manu v. Union
of India, (2013) 12 SCC 171 : (2014) 2 SCC (L&S) 706] , it
was held that (SCC p. 176, para 10) merely because the
name of a candidate finds place in the select list, it would
not give the candidate an indefeasible right to get an
appointment as well. It is always open to the Government
not to fill up the vacancies, however such decision should
not be arbitrary or unreasonable. Once the decision is
found to be based on some valid reason, the Court would
not issue any mandamus to the Government to fill up the
vacancies. As noticed earlier, because twenty-two other
candidates were declared successful by the Supreme Court
pertaining to the selection of the years 1998, 1999, 2000
and 2001 as Civil Judges (Junior Division), they were to be
accommodated, as rightly resolved by the Administrative
Committee in the meeting dated 6-7-2011. The three
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resultant vacancies of the year 2007-2008 stood consumed
with the joining of the said seventeen candidates and the
same could not be filled up from the select list of that year.
The decision of the Administrative Committee observing
that the three resultant vacancies stood consumed is based
on factual situation arising there and cannot be said to be
arbitrary.
27. Thus, having regard to the aforesaid legal principles, we
are of the opinion that no candidate borne on select/wait list has
got any absolute right to be offered appointment and the
authority, whether to appoint or not a selected candidate, lies
with the appointing authority, though, for denying offer of
appointment in such a situation, action of an employer has to
conform to the principles of non-arbitrariness. Accordingly, in
the instant matter, unless the Court finds that reason for not
making appointment from select/wait list prepared on the basis
of recruitment process 2018 is found to suffer from an element
of arbitrariness, the prayer made in the Petitions cannot be
granted.
28. The central argument in support of the Writ Petitions as
advanced by learned Counsel representing the Petitioners
revolves around the provision of Rule 7 of the Rules available in
th
Appendix-A appended to Government Resolution dated 26
December 1957 as amended by subsequent Government
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th
Resolution dated 26 February 1971 which forms part of the Civil
Manual. The case set-up by the Petitioners that such rules are
statutory in nature, in our opinion is not tenable. As is apparent
from a perusal of paragraph 577 of the Civil Manual, the
Recruitment Rules are part of the Government Resolution dated
th
26 December 1957 as amended vide subsequent Government
th
Resolution dated 26 February 1971. The administrative or
executive functions of the State Government are exercised in
terms of the provisions contained in Article 166 of the
Constitution of India. Any Government Resolution or
Government order, thus, owes its existence to the general
executive/administrative powers exercised by the State and not
to any statute or legislation. In the hierarchy of laws the
provisions of the Constitution occupy the highest pedestal and
thereafter is placed the subordinate or delegated legislation
framed or notified by the authority concerned which is
empowered to frame such subordinate legislation under an
enactment of the Legislature concerned. The executive
instructions or circulars or orders or resolutions of the
Government occupy a place below such subordinate/delegated
legislation in the hierarchy of laws. It is needless to observe that
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any instruction or circular or order is always subject to
permissible variation and the repository of an executive power is
always empowered to vary or even annul such executive
instructions or circulars. The executive circulars or orders or
resolutions are generally understood as guidelines.
29. Our view that the provisions of Rule 7 of the Recruitment
Rules which are found in Appendix-A appended to the
th
Government Resolution dated 26 December 1957 as amended
nd
vide Government Resolution dated 22 February 1971 are
merely executive instructions and do not have any statutory
force, finds support from a Division Bench judgment of this Court
in the case of Kisanlal Bachharaj Vyas Vs. Mohanlal Lala
5
Chandmal . Paragraph No.7 of the said judgment is extracted
hereinbelow:
“7. It must further be remembered that the Civil
Manual merely embodies the rules and instructions
for the guidance of the Civil Courts and officers
subordinate to it and the same were issued in order
to ensure uniformity in the rules and practice in all
parts of the State. The argument of Mr. Shankar
Anand that all the instructions contained in the Civil
Manual must be deemed to be rules framed by the
High Court under s. 122 of the Code of Civil
Procedure is not, in our view, valid. Under s. 122,
High Court not being the Court of a Judicial
Commissioner, may, from time to time after previous
5 (1972) 74 Bom.LR 379
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publication, make rules regulating their own
procedure and the procedure of the Civil Courts
subject to their superintendence, and may by such
rules annul, alter or add to all or any of the rules in
the First Schedule. But every instruction contained in
the Civil Manual cannot obviously be regarded as
rules framed under this provision. There is a separate
printed booklet of rules made by the High Court of
Judicature at Bombay under s. 122 of the Code of
Civil Procedure. Those rules came into effect on
November 1, 1966, and one of those rules contains
an amendment to the provisions of O. IV, r. 1 of the
Code of Civil Procedure, with which we are not
concerned in this appeal. We have only referred to
those rules to point out that they are clearly distinct
and separate from the instructions contained in the
Civil Manual and the instructions contained in para. 7
in Chapter II of the Civil Manual cannot, in our view,
be regarded as a rule having the force of law.”
30. Accordingly, we conclude that the so called recruitment
rules which are part of the Government Resolutions, are only
guidelines and do not have any statutory force which can be
taken aid of only for guidance and can be varied or altered or
even annulled by appropriate decision which may be taken by
the High Court for exercising control and superintendence over
the Group-C and Group-D staff attached to the establishment of
District Courts.
31. Some discussion on the issue as to the authority or power
of the High Court vis-a-vis authority and power of the State
Government in respect of the recruitment and other related
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matters concerning the staff attached to establishment of District
judiciary is also relevant at this juncture.
32. In this regard we may refer to two Articles of the
Constitution of India viz. Article 227 and 235. Article 227 vests
in every High Court, superintendence of every courts or tribunals
throughout the territory in which the High Court exercises its
jurisdiction. Sub Article (2) and (3) of Article 227 vests certain
authority in the High Court, however, without prejudice to the
generality of the provisions contained in sub Article (1) of Article
227. In other words, the power of superintendence over all
Courts and Tribunals by the High Court throughout its territories
are not confined to only those available under sub Article (2) and
(3) of Article 227. The occurrence of the words “without
prejudice to the generality of the foregoing provisions” in sub
Article (2) of Article 227 makes it abundantly clear that so far as
the affairs of the Courts and Tribunals in respect of which the
High Court exercises jurisdiction, the High Court has all the
powers of superintendence.
33. Article 235 provides that the control over District Courts
including the posting and promotion of, and grant of leave to the
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persons belonging to judicial services shall be vested in the High
Court. Article 235 is worded in such a manner that control of
High Court over District Courts is not confined to certain service
related matters of a member of judicial service. The phrase,
“the posting and promotion of, and the grant of leave to persons
belonging to the judicial service” is preceded by the word
“including”. That clearly means that such control of the High
Court exists beyond the service related matters concerning
persons belonging to judicial services. The subject “posting and
promotion of, and the grant of leave to persons belonging to
judicial services” is not exhaustive, it is rather inclusive. As to
the extent of powers of High Court under Article 235 we may
refer to a full bench judgment of the Gujarat High Court in the
6
case of Y.P. Kumpavat & Ors. Vs. State of Gujarat & Ors. ,
wherein it has been held that the terminology used in Article 235
makes it clear that the said provision shall include within its folds
not only the presiding Judges of the District judiciary but other
functionaries and staff attached to such presiding Judges.
Paragraph 21 of the said judgment is relevant in this regard
which is extracted hereunder:
“21. According to Article 235, the control over the district
6 2013 SCC OnLine Guj 3279
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and subordinate Courts is vested in the High Court,
including the posting and promotion of, and the grant of
leave to, persons belonging to the State judicial service,
and holding a post inferior to that of a District Judge.
However, the High Court is not authorized to deal with any
such person otherwise than in accordance with the
conditions of service prescribed under the law. Article 235
is not to be construed as taking away from any such
person, any right of appeal, which he may have under the
law regulating his conditions of service. Article 235 is the
pivotal provision. The control vested in the High Court by
Article 235 over the subordinate judiciary is for the purpose
of preserving its independence and its protection from the
executive interference. The control vested in the High
Court by Article 235 of the Constitution of India over the
judiciary below it comprehends a wide variety of matters
and is “exclusive in nature, comprehensive in extent and
effective in operation”. The High Court is the sole custodian
of the control over the subordinate judiciary. The word
“control” in Article 235 is used in a comprehensive sense.
In includes general superintendence over the working of
the subordinate courts. The expression “control” in Article
235 also includes the disciplinary control. The terminology
used is “District Courts and the Courts subordinate
thereto”, and their control has been squarely vested in the
High Court. To our mind, this terminology has been used
compendious to include within it the Presiding Judge and
the functionaries and staff attached to him. If the intention
of the framers of the Constitution was to confine and
restrict the control of the High Court to the Presiding
Officers of the District Courts and the other subordinate
Courts, then such a wide ranging terminology would not
have been used. It is a settled law that no part of a statute
is to be interpreted as merely surplusage or to render
substantial portion thereof as otiose except for very
compelling reasons.”
34. The subject matter in Y.P. Kumpavat (supra) which was
considered by full bench of Gujarat High Court related to policy
framed by the High Court to have a centralized recruitment
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process for recruiting the staff attached to the Courts in the
District judiciary. After detail consideration of all the relevant
aspects the full bench expressed its conclusion in paragraph 57
of the judgment in the case of Y.P. Kumpavat (supra) which is
extracted hereunder:
“57. In view of the aforesaid discussion, our final
conclusions in these appeals are as under:-
1. The High Court in exercise of its power under
Article 235 of the Constitution of India, can control
the method, manner and the mode of recruitment of
candidates to Class III and Class IV services in the
District Courts and the Courts subordinate thereto,
despite the fact that the power to make Rules as to
the recruitment and conditions of service of the
employees of the subordinate courts vests in the
State Government;
2. The control vested in the High Court under
Article 235 of the Constitution is exercisable not only
over the members of the judicial services of the State
as defined in Article 236(b) of the Constitution of
India, but also over the ministerial officers and
servants on the establishment of the subordinate
courts in the matters of appointment, over and above
the disciplinary control;
3. The policy decision of the High Court to have a
Centralized Recruitment Cell for the purpose of
undertaking the centralized selection process for
recruitment of candidates to Class III and IV services
in the respective District Courts could not be said to
be in any manner illegal or in violation of the
executive instructions as contained in the
Government of Bombay, Home Department Resolution
th
dated 26 December, 1957;
4. The High Court was not obliged in law, before
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formulating a policy to have a centralized recruitment
process, to recommend the Government for making
necessary amendments in the administrative
instructions as contained in the Resolution of 1957, as
the High Court should not be asked to run to the
Government in all such matters as the Rules, if any,
framed with regard to the members of such
establishments, either administratively or under
Article 309 of the Constitution, must be so read as to
make them consistent with the administrative
superintendence or control jurisdiction of the High
Court under the Constitution;
5. The appellants, except the appellants of Letters
Patent Appeal No. 809 of 2013, have no indefeasible
right of remaining on the post, taking into
consideration the fact that their initial appointments
were ad hoc and on temporary basis.”
35. Regarding the scope of powers under Article 235, reference
may also be had to the judgment of the Hon’ble Supreme Court
in the case of Renu & Ors. Vs. District & Sessions Judge, Tis
7
Hazari Courts, Delhi & Anr. wherein the above view
expressed by the Hon’ble Gujarat High Court that Article 235
provides for power to High Court to exercise complete
administrative control over the District Courts to and all
functionaries attached to District Courts including the ministerial
staff and servants in the establishment of District judiciary, has
been affirmed. Paragraph 23 of the judgment Renu & Ors.
(supra) is extracted hereinbelow:
7 (2014) 14 SCC 50
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“ 23. Article 235 of the Constitution provides for power of the
High Court to exercise complete administrative control over the
subordinate courts. This control, undoubtedly, extends to all
functionaries attached to the subordinate courts including the
ministerial staff and servants in the establishment of the
subordinate courts. If the administrative control cannot be
exercised over the administrative and ministerial staff i.e. if the
High Court would be denuded of its powers of control over the
other administrative functionaries and ministerial staff of the
District Court and subordinate courts other than judicial officers,
then the purpose of superintendence provided therein would
stand frustrated and such an interpretation would be wholly
destructive to the harmonious, efficient and effective working of
the subordinate courts. The courts are institutions or an
organism where all the limbs complete the whole system of
courts and when the constitutional provision is of such wide
amplitude to cover both the courts and persons belonging to the
judicial office, there would be no reason to exclude the other
limbs of the courts, namely, administrative functionaries and
ministerial staff of its establishment from the scope of control.
Such control is exclusive in nature, comprehensive in extent and
effective in operation. (Vide State of W.B. v. Nripendra Nath
Bagchi [AIR 1966 SC 447] , Baradakanta Mishra v. High Court of
Orissa [(1974) 1 SCC 374 : 1974 SCC (Cri) 128] , Yoginath D.
Bagde v. State of Maharashtra [(1999) 7 SCC 739 : 1999 SCC
(L&S) 1385] , Subedar Singh v. District Judge, Mirzapur [(2001)
1 SCC 37 : 2001 SCC (L&S) 141] , High Court of Judicature of
Rajasthan v. P.P. Singh [(2003) 4 SCC 239 : 2003 SCC (L&S)
424] and High Court of Judicature of Madras v. R. Perachi
[(2011) 12 SCC 137 : (2011) 2 SCC (L&S) 643] .)”
36. Having regard to the relevant factors as discussed above,
we are in complete agreement with the view taken by the
Gujarat High Court in Y.P. Kumpavat (supra), where it has
clearly been held that High Court, in exercise of its powers under
Article 235, can control the method, manner and mode of
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recruitment of candidates to Group-C and Group-D posts of the
District Courts.
37. The next submission made by the learned Counsel for the
Petitioners that the prescription contained in Clause 46 of the
advertisement cannot be given effect to for the reason that it is
contrary to Rule 7 of the Recruitment Rules, in our opinion, is
not tenable. The prescription available in Clause 46 of the
advertisement owes its existence to the general power of control
and superintendence vested in the High Court over the District
judiciary which, as discussed above, includes control and
superintendence over the ministerial staff and servants attached
to the establishment of the District judiciary. Rule 7 not being
statutory as it was part of only a Government Resolution, is
always subject to any further prescription which may be made by
the High Court in respect of the process of recruitment and any
conditions of service of the employees working in the District
Courts. We, thus, hold that prescription in clause 46 of the
advertisement which provided that the select/wait list will be
valid for such period as may be prescribed by the High Court,
cannot be faulted with as it was well within the powers of the
High Court available under Article 235 to make such prescription
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even in deviation of Rule 7 of the Recruitment Rules, which as
observed above are not the rules in the traditional sense of the
th
word; rather part of Government Resolution dated 26
December 1957 as amended by subsequent Government
nd
Resolution dated 22 February 1971.
38. The ground urged on behalf of the Petitioners that decision
not to extend life of the select/wait list, as communicated by the
th
Registrar General of this Court vide his letter dated 25
November 2021, is without jurisdiction having been taken by the
Hon’ble Judges of the Administrative Committee though such
decision could be taken only by the Full House of the High Court,
is also absolutely erroneous. A reference in this regard may be
made to the decision taken in a Full-House meeting of this Court
nd
held on 2 May 1981, according to which except for certain
matters as already discussed in paragraph 23 above, decision on
any other matter can be taken by the High Court in accordance
with the practice followed or in accordance with the directions
which the Chief Justice may issue from time to time. It is, thus,
clear that in case any subject other than the exceptions as
already detailed above, is placed before a Committee of Hon’ble
Judges on the directions of the Chief Justice for taking decision
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in a matter, such Committee of Judges is legally competent to
take decision and any such decision will be termed to be the
decision of the High Court in view of the resolution of the Full
nd
House of this Court dated 2 May 1981. In this view of the
matter, the submission that the decision not to extend the term
of select/wait list is without jurisdiction, merits rejection.
39. There is yet another reason why we are unable to agree
with the submissions made on behalf of the Petitioners seeking
their appointment on the basis of select/wait list. It is also the
case put-forth by Dr. Sathe, learned Senior Advocate appearing
for the High Court that while requisitioning the vacancies on the
th
basis of which the advertisement dated 28 March 2018 was
issued the vacancies actually available immediately before
issuance of advertisement was not calculated correctly and that
the list to be prepared in terms of Rule 4 does not reflect the
actual vacancies for which selection ought to be held. In this
respect, what we find in Rule 4 of the Recruitment Rules provide
that the list of candidates shall be prepared which shall comprise
of total number of vacancies in each category equal to (a)
average temporary vacancies which occurred during the previous
two years, plus (b) expected permanent vacancies during the
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year for which enlistment is proposed to be made, and (c)
addition of 20% of (a) and (b), to meet the unexpected
contingencies and wastage. Thus, if the list of candidates is
prepared after selection in terms of Rule 4, in our considered
view, the same cannot be said to be actual reflection of the
number of vacancies available immediately before the
advertisement. In such circumstances, if appointments are
permitted to be offered on the basis of such list which does not
reflect the actual vacancies, the same may be violative of Article
16 of the Constitution of India for the reason that it may result in
the fresh candidates not getting an opportunity to participate in
the selection for appointment to public posts or service.
CONCLUSION:
40. In view of the aforesaid discussion, we conclude that the
decision rejecting the prayer for extension of life of the
select/wait list prepared on the basis of recruitment process
2018 does not suffer from any illegality so as to call for any
interference by this Court in these Writ Petitions. The decision to
commence fresh process of recruitment, thus, is also not liable
to be interfered with.
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We also conclude, for the aforesaid reasons, that the
th
Notification dated 29 November 2023 issued for commencing
fresh recruitment process for appointment to various posts in the
establishment of District Courts in the State of Maharashtra, also
does not suffer from any illegality.
41. The Writ Petitions, thus, do not carry any force which are
liable to be dismissed.
42. Resultantly, the Petitions are hereby dismissed.
43. There will, however, be no order as to costs.
44. Interim Applications, if any, stand disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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