MR. SANJAY DEVAPPA DEVAMANE vs. THE STATE OF MAHARASHTRA THROUGH THE SECRETARY, LAW AND JUDICIARY DEPT. AND ORS.

2016:BHC-AS:23007-DB
906-WP.8210.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8210 OF 2016
Vishnu Dattarao Gite } Petitioner
versus
The State of Maharashtra }
and Ors. } Respondents
WITH
WRIT PETITION NO. 8250 OF 2016
Shri. Pranand Pramod Joshi } Petitioner
versus
Maharashtra Public Service }
Commission and Anr. } Respondents
WITH
WRIT PETITION NO. 10576 OF 2016
Mr. Sanjay Devappa }
Devamane } Petitioner
versus
The State of Maharashtra }
and Ors. } Respondents
WRIT PETITION (ST.) NO. 22262 OF 2016
Anita Rajkumar Das } Petitioner
versus
The State of Maharashtra }
and Ors. } Respondents
Mr. Avinash B. Avhad for the petitioner in
WP/8210/2016 and WPST/22262/2016.
Mr. Yuvraj P. Narvankar with Mr. Vasant
R. Kadam for the petitioner in
WP/8250/2016.
Mr. Umesh Mankapure with Mr. Vinod
Sangvikar for the petitioner in
WP/10576/2016.
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Ms. Sushma Bhende – AGP for respondent
nos. 1 and 2 in all writ petitions.
Mr. Rahul Nerlekar for respondent no. 3
in WP/8210/2016, WPST/22262/2016
and WP/10576/2016.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
DATED :- SEPTEMBER 14/16, 2016
ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. Rule. Respondents waive service. By consent, Rule made
returnable forthwith.
2. By these petitions, the petitioners challenge the legality and
validity of Rule 10(8)(a) of the Maharashtra Public Service
Commission Procedural Rules/Rules of Procedure. The writ
petitions also seek quashing and setting aside of a letter dated
th
27 June, 2016 addressed by the Additional Secretary, Law and
Judiciary Department, Government of Maharashtra.
3. Alternatively, a declaration is claimed that the rules of
procedure, framed by the Maharashtra Public Service
Commission (hereinafter referred to as “the MPSC”) do not
override the Maharashtra Judicial Service Rules, 2008
(hereinafter referred to as “the Judicial Service Rules”)
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4. We would take the facts, which are more or less similar to
all petitions from Writ Petition No. 8210 of 2016.
5. The petitioner therein is an advocate by profession. He has
stated that he is permanent citizen of India. He has completed his
B. S. L. L. L. B. from Pune University in 2012. He came across an
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advertisement of the second respondent MPSC published on 3
March, 2015. That advertisement was inserted to seek
applications for appointment to the post of Civil Judge Junior
Division and Judicial Magistrate First Class (hereinafter referred
to as “CJJD and JMFC”). It is claimed that in all 227 posts were
to be filled in.
6. Annexure 'A' to the petition is a copy of this advertisement
and the petitioner states that the MPSC holds a preliminary
examination and those successful thereat are permitted to go
ahead and take the main examination. The petitioner claims that
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he appeared for the preliminary examination held on 31 May,
2015. He was successful at the same and thereafter appeared for
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the main examination on 4 October, 2015. He had also received
a call for appearing for the interview and he attended the same.
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The interview was held on 15 January, 2016. In para 4 of the
petition, the petitioner states that the second respondent
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commission declared the final result on 10 March, 2016. A
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merit list of 307 candidates was displayed. The petitioner
secured 131 marks out of 250. A perusal of the merit list reveals
that the candidates from serial number 220 to 230 have secured
same marks, namely 131. It is stated by the petitioner that the
candidates have been placed in the merit list as per their
seniority. The petitioner's name appears at serial number 228 in
the merit list of 307 candidates. The entire list is compiled and a
copy thereof is at Annexure 'C'.
7. The second respondent commission recommended the
names of 227 candidates for appointment. The recommendations
were duly forwarded to respondent no. 1, namely, the
Government of Maharashtra appearing before us through the
Secretary, Law and Judiciary Department. The third respondent
to the writ petition is the Registrar General of this court. The
petitioner's case is that the further process was to be carried out
after the receipt of this list by the Department of Law and
Judiciary. The claim of the petitioner is that the candidates
appearing at serial number 228 onwards are wait-listed
candidates. The list from that serial number up to 307 candidates
is taken as wait-list. The petitioner then complains that though
227 candidates were to be appointed, the names of exactly 227
candidates from serial number 1 to 227 were forwarded. The
names of 307 candidates were not forwarded.
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8. The petitioner states that all the candidates, out of the list of
recommended 227 candidates, were not likely to join. Some are
bound to drop out in the further process or even if they go
through, it is quite likely that they would indicate that they are
not keen to join. It is in these circumstances the petitioner,
relying upon the past experience and also from one of the
successful lady candidate came to know that though she was at
serial number 1 in the merit list, she was not desirous of
accepting the appointment. The petitioner then relies upon not
only her oral communication to him but also on the record of the
respondents. He states that Ms. Varsha Chandrakant Zende
candidate at serial number 1 provided the petitioner with a copy
th
of letter dated 28 April, 2016, by which, she informed
respondent no. 1 about her inability to accept the appointment.
Annexure 'D' is copy of this letter.
9. Then, the petitioner claims that the process of documents
verification and medical examination is still in progress. The
petitioner visited personally the offices of respondent nos. 1 and 2
for inquiring as to whether the wait-listed or the remaining
candidates would be issued any letter or invitation to join the
further process, namely of documents verification and medical
examination. The petitioner, even prior to receipt of a letter from
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Ms. Varsha Zende, forwarded his representation dated 19 April,
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2016. He also filed representations dated 11 May, 2016 and
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25 May, 2016. They are also compiled together as Annexure 'E'.
Thereafter, the petitioner also communicated with the second
respondent commission. The petitioner made a representation
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initially on 19 April, 2016 and followed it up by representation
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dated 23 May, 2016. Finally, the petitioner received the
impugned communication. The impugned communication states
that the representation addressed to respondent no. 2 was
forwarded by it to respondent no. 1. The State Government,
through its Law and Judiciary Department, communicated to the
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commission on 14 June, 2016 that in terms of Resolution No. 2
nd
of 2014 dated 22 January, 2014, the wait-list prepared for
competitive examination is in force for a period of one year from
the date of declaration of result or up to the publication of
subsequent advertisement for recruitment to the post, whichever
is earlier. The petitioner has also averred in para 12 of the
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petition that the commission published advertisement on 23
March, 2016 inviting applications from the eligible candidates for
appointment to the same post, namely of CJJD and JMFC. This
advertisement is for recruitment to 131 posts. The petitioner
states that the first respondent, therefore, communicated and
informed the petitioner that as far as the present recruitment
process is concerned, the petitioner's claim cannot be considered.
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10. It is in these circumstances that the petitioner invites this
court's attention to the Judicial Service Rules and the Procedural
Rules of the second respondent commission. Though initially no
challenge was raised to these rules, what has transpired is that on
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moving this writ petition filed on 10 July, 2016, a Division
Bench, of which one of us (S. C. Dharmadhikari, J.) was a party,
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on 10 August, 2016, was informed that in an identical petition
and of similarly placed candidate, the subject rules (procedural)
have been challenged. At that hearing, this court's attention was
invited to what is styled as contradictory provision or the
dichotomy between the Procedural Rules of the commission and
the Judicial Service Rules. This court's attention was also invited
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to Rule 20 of the Judicial Service Rules as amended up to 11
February, 2016 to submit that the MPSC Rules cannot override
the Judicial Service Rules. Even in cases of silence, what would
prevail are the Judicial Service Rules, is the submission.
Therefore, Writ Petition No. 8210 of 2016 was allowed to be
amended.
11. Now we would refer to affidavits placed on record by the
contesting respondents. Before that, we refer to an additional
affidavit of the petitioner, in which, the petitioner states that in
terms of Rule 6(3)(b) of the the Judicial Service Rules the
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recruiting authority shall prepare a wait-list equal to ten percent
of the number of vacancies notified for recruitment or one, which
ever is higher. Rule 6(4)(a) provides that the recruiting
authority shall recommend the names of selected candidates by
completing the selection process. It is in these circumstances, it
is urged that it was incumbent upon the second respondent to
forward the entire list of 307 candidates. There is no discretion
with the recommending authority or the recruiting authority,
namely the second respondent to keep back or not forward the
rest of the names.
12. Then, reliance is placed on the rules framed by respondent
no. 2 in the year 1981 and which were in force till 2010 in
respect of the merit list and wait-list. It is submitted that the
wait-list prepared by the second respondent was valid for one
year from the date of declaration of result or up to the publication
of subsequent advertisement for recruitment to the post,
whichever is earlier. In case no further advertisements are
issued, then, in that case, for a period of two years from the date
of publication of merit list. To the further affidavit of the
petitioner, relevant extract of the rules is annexed at Annexure
'A' In the year 2011, the commission amended the rules and
declared that no waiting list should be prepared for the
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competitive examination. Then, it is stated that the commission,
again amended the rules in 2014. Rule 10(8)(a) of the
Procedural Rules, with which we are concerned in this petition
reads as under:-
“10(8)(a) In case of recruitment by Competitive
Examination wherever multiple cadre posts are
involved, the reserve list shall not be maintained. The
posts fallen vacant due to non-acceptance of the offer of
appointment by the candidates recommended, shall be
filled in through subsequent Competitive Examination.
When only single cadre is involved for selection by
competitive examination the reserve list shall be
maintained for a period of one year from the date of
declaration of result or up to the publication of
subsequent advertisement for recruitment to the same
post “whichever” is earlier.”
13. It is submitted that the commission prepares what are
styled as Rules of Procedure. That regulates the internal
procedure. These are not rules framed or traceable to Article 234
of the Constitution of India. That is why they cannot override
these Judicial Service Rules. Apart from reiterating some of the
averments in the writ petition, what the petitioner has then
sought to explain is the statement in the reply affidavit of
respondent no. 1. That is that the wait-list prepared in respect of
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the current or ongoing process has been exhausted in view of the
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publication of the advertisement dated 23 March, 2016. The
petitioner submits that the second respondent commission had
published advertisement for the post of CJJD and JMFC in the
year 2014 and the result of the said examination was published
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on 31 May, 2014. However, the MPSC published a fresh
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advertisement for the said posts on 3 March, 2015 and had
prepared merit list, which was inclusive of 10% wait-list. It is
submitted that the MPSC had not followed Rule 10(8)(a) for the
year 2014-15. The fresh advertisement is published in just 14
days of the date of declaration of results. The results were
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declared on 10 March, 2016 for 2014-15 examination and the
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advertisement has been released on 23 March, 2016. Thus, this
inherent contradiction in the procedural rules or their
implementation by the commission is highlighted in this
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additional affidavit filed on 17 August, 2016.
14. Then we have before us the affidavits filed in reply to this
petition on behalf of the Registrar General of this court.
15. It is stated in this affidavit that the Judicial Service Rules
regulate the recruitment of the Maharashtra Judicial Service.
Reliance is placed upon Rule 2(i), which is definition of the term
“recruiting authority”. It is stated that in case of recruitment to
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the post of of CJJD and JMFC, the MPSC is the recruiting
authority. As per Rule 6(1)(a) in case of CJJD and JMFC, on or
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before 15 January every year, the recruiting authority is
required to be informed about the number of existing vacancies
that are likely to occur within one year. As per Rule 6(1)(b),
every year the recruiting authority shall, by advertisement,
invite applications from the intending candidates, who possess
the qualification for filling in the vacancies. The deponent of this
affidavit places reliance on the judgment/order of the Hon'ble
Supreme Court of India in the case of Malik Mazhar Sultan and
1
Anr. vs. U. P. Public Service Commission and Ors. . A time frame
has been provided for the appointment to the post of District
Judge, Civil Judge, Senior Division and Civil Judge Junior
st
Division and there are directions for submission of report on 31
January every year regarding the filling up of vacancies. That is
how the Judicial Service Rules prescribe for recruitment process
to be undertaken every year by the recruiting authority. In the
present matter, for the selection process of 2015, the vacancies
were informed to the Law and Judiciary Department with a
request to issue necessary instructions to the MPSC. Annexure
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'A' to this affidavit is a copy of the letter dated 13 January,
2015. That letter is relied upon together with Rule 6(3)(a) and
1 (2008) 17 SCC 703
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(b) to submit that it is the recruiting authority who prepares the
list of candidates eligible for appointment and also the wait-list.
Rule 6(4)(c) of the Judicial Service Rules is relied upon to submit
that on the publication of the list of candidates eligible for
appointment, within one month of the preparation or publication
in the official gazette, the same shall be operative for one year
from the date of such publication. It is claimed that the Judicial
Service Rules do not prescribe any period for the validity of the
wait-list prepared by the recruiting authority. This court does not
maintain any wait-list of the selection process of CJJD and JMFC.
Rule 6(7) of the Judicial Service Rules is then relied upon to
submit that the candidates, whose names are included in the wait-
list, can be considered for appointment only after the candidates,
whose names are included in the select list under Rule 6(3)(a)
have been appointed and have not joined or have not been
appointed for any reason. It is in these circumstances, Rule 20 is
relied upon to submit that insofar as any silence maintained in
the Judicial Service Rules, the provisions of the Maharashtra
Civil Service Rules shall apply mutatis mutandis. Thus, the
validity of the wait-list shall be governed by the provisions as
made applicable by the recruiting authority, namely the MPSC.
16. Thereafter, it is submitted that certain representations
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were received from the petitioner and they were forwarded to the
Commission for necessary action. It is in these circumstances
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that the petitioner came to be informed on 27 July, 2016 by the
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impugned letter that the advertisement is published on 23
March, 2016 and that is why the wait-list gets exhausted. Thus,
the affidavit of respondent no. 3 does not dispute the applicability
of the MPSC Procedural Rules and the stipulations therein.
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17. This affidavit was filed on 5 August, 2016, pursuant to
which, the petitioner filed an additional affidavit. The MPSC filed
an affidavit seeking to reply the statements made in the writ
petition. It highlights the role of the MPSC. It states that it has
power to frame its procedural rules and make amendments
thereto from time to time. That is because the commission
desires to achieve more transparency, impartiality, rationality
and reasonableness in its affairs. In the meeting of the
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commission held on 8 August, 2013, the issue of wait-list was
discussed. The commission states that various examinations are
conducted by the commission and names of the selected
candidates therein are recommended by the commission to the
concerned departments of the State Government. However,
sometimes, some of the selected candidates do not accept the
appointments and in such cases, since wait-list is not maintained,
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further names of the candidates from the merit list could not be
recommended to the State Government. This resulted in number
of vacancies occurring in the Government posts and for long time.
To fill up such vacant posts, fresh selection process was required
to be conducted, which causes financial and administrative
burden on the Government. That is how it was decided to
introduce the practice of using the merit-list and a waiting list.
Rule 10(8)(a) was incorporated pursuant to this decision taken
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in the meeting held on 8 August, 2013. Thereafter, a standing
order was issued. Since the Judicial Service Rules are silent
about the period of waiting list, the stipulations in the MPSC
Procedural Rules would apply. The petitioner being placed at
serial number 228 in the merit list, does not, therefore, have any
right much less vested to be appointed. The life of that wait-list
comes to an end on publication of the advertisement.
18. For all these reasons, it is submitted that the writ petition
be dismissed.
19. It is on this material that we have heard both writ petitions
and when they were pending, one more petition was moved by
Mr. Umesh Mankapure being Writ Petition No. 10576 of 2016
raising identical challenge, but at the instance of another
candidate. That candidate was also placed in the list, but after
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serial number 227. His name appears at serial number 231. In
para 13 of this petition, the petitioner relies upon a notification
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issued by the State on 25 July, 2016 confirming appointment of
only 213 candidates for the post of JMFC. Though 227 posts were
to be filled in, in terms of the advertisement, but 227
appointments have not been made. The reasons, according to this
petitioner, are best known only to the authorities. He also,
therefore, submits that this court should issue appropriate
declaration.
20. Mr. Avhad learned advocate appearing for the petitioner in
Writ Petition No. 8210 of 2016, after taking us through the
petition paper book including all annexures and the impugned
letter/communication submits that the petitioner is placed at
serial number 228 of the merit list. If that is reckoned to be a
composite list and comprising of names of both, those eligible in
order of merit and those eligible but could not be placed in the
number of vacancies notified, then, that should be construed as
the wait-list. In the present case, the candidate at serial number
1 does not accept the appointment. This would, therefor, cause a
vacancy. That vacancy has to be filled in by operating this
composite list. The petitioner is requesting to operate the list in
this manner. That has not been replied by the second respondent
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commission. The reply of the Law and Judiciary Department at
page 65 relying on the MPSC Procedural Rules and the factum of
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the fresh advertisement dated 23 March, 2016 being released
means that the Law and Judiciary Department has given a go by
or has completely frustrated the mandate of the Judicial Service
Rules. No Procedural Rules of the MPSC can override the
substantive rules like the Judicial Service Rules. Our attention
has been invited to Rule 6(3)(a) and (b), Rule 6(4)(a) to (c) and
Rule 6(7) of the Judicial Service Rules to urge that it is incorrect
to conclude that there is no wait-list contemplated by the Judicial
Service Rules. The candidates whose names are included in the
wait-list shall be considered for appointment after the candidates
whose names are included in the list published under sub-clause
(a) of sub-rule (3) of Rule 6 have been appointed and have not
joined or have not been appointed for any reason are the words
and expressions appearing in Rule 6(7). That has not been
perused at all. In complete ignorance of this sub-rule (7) of Rule
6, it is communicated that the fresh advertisement having been
inserted, the select list comes to an end. It cannot be that the
wait-list gets exhausted would mean that the petitioners are
ineligible. The wait-list and a composite list is contemplated by
Rule 6(3)(a). By Rule 6(4)(c), the words “the lists so prepared”
appear. Once this word is used in plural, then, it contemplates
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both, the select list and the wait-list to operate for a period of one
year from the date of publication. If that is the clear stipulation in
the Judicial Service Rules, then, anything contrary thereto
cannot be allowed to stand. No reliance can be placed on Rule 20
of the Judicial Service Rules. One Rule cannot be read in isolation
to defeat the mandate of another specific binding Rule and
direction therein. The Judicial Service Rules have to be read as a
whole and in the entirety. So read, Rule 20, which is a residuary
provision can in no circumstances be relied upon to deny the
request of the petitioners. It is in these circumstances that
Mr.Avhad would urge that at least in the case of composite list as
is subject of the present petition, this court must issue
declarations as prayed. Even if fresh advertisement is issued,
this court has ample power to interfere with that process and
direct that filling up vacancies shall be as per the list so published
and in pursuance of the earlier advertisement in the year 2015.
The period of one year has admittedly not expired from the date
of publication of that list. In the circumstances, Mr. Avhad would
submit that going by the mandate of Articles 233, 234 and 235, it
is permissible for us to issue such directions and grant reliefs.
21. In support of his submissions, Mr. Avhad has relied upon
the following decisions:-
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(i) Mr. Udaysing Jalamsing Valvi vs. The Secretary,
District Selection Committee and Anr., Writ Petition No.
4257 of 2013.
(ii) Sasidhar Reddy Sura vs. State of Andhra Pradesh and
Ors., AIR 2014 SC 444.
22. Thus, the emphasis of Mr. Avhad is that the composite
merit list of the MPSC includes recommended candidates and
wait-listed candidates. Even with regard to the recommended
candidates, it is not for the MPSC to take any further steps. It is
merely a recruiting authority. It is not a recruiting and
appointing authority. Therefore, it merely forwards the names
after it receives the requisitions from the Government. Once it
forwards the list, its task or job comes to an end. It has a very
limited role. It is not the authority contemplated by Article 233
of the Constitution of India. Therefore, any contradiction and
dichotomy between the MPSC Procedural Rules and Judicial
Service Rules should be resolved by upholding the Judicial
Service Rules and not defeating them. The difference in the two
Rules, therefore, cannot be lost sight of. In any event, the MPSC
Rules do not contemplate a composite list. Therefore, we must go
by the mandate of Rule 6(7) of the Judicial Service Rules. It does
not make any distinction between a merit list and wait-list.
23. While adopting these contentions of Mr. Avhad,
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Mr.Mankapure would submit that in the present case, injustice is
writ large. The proceedings and which have been placed on
record suffer from complete arbitrariness and total non
application of mind. In the present case, merit list was published
and within 10 days thereafter, a fresh advertisement has been
issued. Mr. Mankapure submits that somebody and sitting at the
State and the MPSC level is taking unilateral decisions. It is
completely defeating the constitutional mandate. The
constitutional mandate cannot be allowed to be defeated or
frustrated by the executive by interfering with the process of
appointment in the subordinate judiciary. If that is how the
constitutional mandate is carved out, then, none has an authority
to defeat it. Mr. Mankapure has, therefore, emphasized that the
juridical service is distinct from other services. The judicial
officer is not an employee of the Government. If he cannot be
treated as employee of the Government and his status is granted
and recognized in the Constitution, then, none can tinker or
interfere therewith. This court, therefore, must strike down the
MPSC Rule to the extent it overrides the Judicial Service Rules.
Mr.Mankapure has relied upon the following judgments:-
(i) S. D. Joshi and Ors. vs. High Court of Judicature at
Bombay and Ors., AIR 2011 SC 848.
(ii) Sanjay Singh and Anr. vs. U. P. Public Service
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Commission, Allahabad and Anr., AIR 2007 SC 950.
(iii) Neelima Shangla vs. State of Haryana and Ors., AIR
1987 SC 169.
(iv) Manoj Manu and Anr. vs. Union of India and Ors.,
(2013) 12 SCC 171.
24. The contesting respondents include the MPSC and the State.
Ms. Bhende appearing on behalf of them submits that there is
never any attempt made till date nor the MPSC has been ever
charged with trying to interfere with the work of the judiciary.
The MPSC is aware of its limited role. The MPSC is assisting the
judiciary in early completion of the recruitment process and in
proper, scientific and organized manner. The MPSC holds
examinations regularly for enabling the State to make
appointment to civil services or to civil posts. Therefore, for its
experience, it has been chosen to assist in recruitment to the
Judicial Service of the State. If that is how the term “recruiting
authority” is defined in the Judicial Service Rules, then, there is
no question of the Procedural Rules overriding the Judicial
Service Rules. It is only when there is a silence in the Judicial
Service Rules about some aspects that assistance is taken of the
Procedural Rules of the commission. This should not be
understood as interfering with the constitutional mandate noted
by us. She, therefore, invited our attention to Rule 20 of the
Judicial Service Rules and the MPSC Procedural Rules. She
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submits that there is a definite object and purpose as explained in
the affidavit of the MPSC for issuing Resolution No. 2 of 2014.
There is nothing contrary, much less contradictory, in the two
rules. The two rules should be read harmoniously. They can
stand together and therefore, the writ petition should be
dismissed. The writ petition should also be dismissed because
mere insertion of their name in the merit list does not create any
right in favour of the petitioners. Now that the fresh
advertisement has been issued and that too in March, 2016, this
court should not interfere in writ jurisdiction at the instance of
the present petitioners. More so when that jurisdiction is both,
equitable and discretionary. It is extraordinary as well. For
these reasons and when justice is not on the side of the
petitioners, the writ petition should be dismissed.
25. Mr. Nerlekar appearing for the High Court fairly invites our
attention to the affidavit filed by the Registrar (Legal). He
submits that the understanding of the High Court is bonafide,
inasmuch as it is of the view that Rule 20 of the Judicial Service
Rules can be relied upon to take care of the situation in the
present case. As far as the other arguments of Ms. Bhende, he
adopts them.
26. For properly appreciating the rival contentions, we must
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first outline the settled principles.
27. In a very recent decision in the case of Kulwinder Pal Singh
2
and Anr. vs. State of Punjab and Ors. a two Judge Bench of the
Hon’ble Supreme Court of India reiterated the settled position. It
referred to this settled legal position in paragraphs 11 to 14 of
this judgment, which read thus:-
“11. It is fairly well-settled that merely because the
name of a candidate finds place in the select list, it
would not give 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 and
Ors. v. Bhanu Lodh and Ors.,(2005) 3 SCC 618 (AIR
2005 SC 2775); All India SC & ST Employees'
Association & Anr. v. A. Arthur Jeen & Ors. (2001) 6
SCC 380 (AIR 2001 SC 1851) and Union of Public
Service Commission v. Gaurav Dwivedi and Ors. (1999)
5 SCC 180 : (AIR 1999 SC 2137).
12. This Court again in the case of State of Orissa & Anr.
v. Rajkishore Nanda and Ors. (2010) 6 SCC 777 (AIR
2010 SC 2100, paras 13, 15), held as under:
"14. A person whose name appears in the
select list does not acquire any indefeasible
right of appointment. Empanelment at the
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..."
2 AIR 2016 SC 2281
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13. In Manoj Manu and Anr. v. Union of India & Ors.
2013 (10) SCALE 204: (2013) 12 SCC 171 (AIR 2014
SC (Supp) 927), it was held that 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 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 06.07.2011. The three 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.
14. As noticed earlier, as against twenty seven posts of
general category advertised for the year 2007-2008,
thirty one general category candidates have joined and
are working. In Rakhi Ray And Ors. vs. High Court of
Delhi And Ors. (2010) 2 SCC 637 (AIR 2010 SC 932
paras 14, 15), observing that the vacancies cannot be
filled up over and above the number of vacancies
advertised, recruitment of the candidates in excess of
the notified vacancies would amount to denial of equal
opportunity to eligible candidates, this Court held as
under:-
"12. In view of above, the law can be
summarised to the effect that any
appointment made beyond the number of
vacancies advertised is without jurisdiction,
being violative of Articles 14 and 16(1) of the
Constitution of India, thus, a nullity,
inexecutable and unenforceable in law. In
case the vacancies notified stand filled up,
the process of selection comes to an end.
Waiting list, etc. cannot be used as a
reservoir, to fill up the vacancy which comes
into existence after the issuance of
notification/advertisement. The unexhausted
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select list/ waiting list becomes meaningless
and cannot be pressed in service any more.”
28. Thus, it is too well settled and hardly justifies multiplicity of
precedents, that merely because the name of a candidate finds
place in the select list, it would not give him indefeasible right to
get an appointment. The name of a candidate may appear in the
merit list, but he has no fundamental right to an appointment.
We, therefore, need not dwell upon this aspect any further, given
the above authoritative pronouncement. What we have to
emphasize and what is of paramount importance can be best done
by following the view of the Hon’ble Supreme Court of India in the
3
case of State of Bihar and Anr. vs. Bal Mukund Sah and Ors . A
Constitution Bench (Five Judge Bench) of the Hon’ble Supreme
Court of India had to consider the constitutional validity of the
Bihar Reservation of Vacancies in Posts and Services (for
Scheduled Castes, Scheduled Tribes and Other Backward Classes)
Act, 1991 and particularly section 4 thereof which sought to
impose reservation in direct recruitment to the posts in the
judiciary of the state subordinate to the High Court of Patna being
the post of District Judge as well as the posts in the lower
judiciary. These recruitments and appointments were governed
by Bihar Judicial Service Rules, 1955. The Majority Judgment
(3:2) concluded that as far as the appointments even in the
3 AIR 2000 SC 1296
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judicial posts subordinate to High Court, the State Government
cannot prescribe any reservation. The State’s power to prescribe
reservation in judicial posts is taken away by Article 309 of the
Constitution of India. That power of the State to make
appointments is circumscribed to the extent special provisions
are made regarding judicial service. In reiterating the
constitutional status and role of the judiciary, the Hon’ble
Supreme court concluded thus:-
19. It is pertinent to note that independently of general
provisions of Article 309, the Constitution has made
special provisions for certain Services. Even if they may
be part of public services, still separate Constitutional
schemes are envisaged for regulating recruitment and
conditions of services of officers governed by such
Services. Let us have a glance at such specially dealt
with Services.
20. Part VI of the Constitution dealing with the States,
separately deals with the executive in Chapter II, the
State Legislature under Chapter III and thereafter
Chapter IV dealing with the Legislative Powers of the
Governor and then follows Chapter V dealing with the
High Courts in the States and Chapter VI dealing with
the Subordinate Courts. It is in Chapter VI dealing with
the Subordinate Courts that we find the provision made
for appointment of District Judges under Article 233,
recruitment of persons other than the District Judges to
the Judicial Services under Article 234 and also Control
of the High Court over the Subordinate Courts as laid
down by Article 235. Article 236 deals with the topic of
Interpretation and amongst others, defines by sub-
article (b) the expression “judicial service” to mean a
service consisting exclusively of persons intended to fill
the post of District Judge and other civil judicial posts
inferior to the post of District Judge. It becomes,
therefore, obvious that the framers of the Constitution
separately dealt with Judicial Services of the State and
made exclusive provisions regarding recruitment to the
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posts of District Judges and other civil judicial posts
inferior to the posts of the District Judge. Thus these
provisions found entirely in a different part of the
Constitution stand on their own and quite independent
of part XIV dealing with Services in general under the
State. Therefore, Article 309, which, on its express
terms, is made subject to other provisions of the
Constitution, does get circumscribed to the extent to
which from its general field of operation is carved out a
separate and exclusive field for operation by the
relevant provisions of Articles dealing with Subordinate
Judiciary as found in Chapter VI of Part VI of the
Constitution to which we will make further reference at
an appropriate stage in the later part of this judgment.
21. We may also refer at this stage to Article 146
dealing with Services under the Supreme Court which
lays down the procedure for appointment of officers and
servants of the Supreme Court and provides under sub-
article (2) thereof that subject to the provisions of any
law made by Parliament, the conditions of service of
officers and servants of the Supreme Court shall be such
as may be prescribed by rules made by the Chief Justice
of India or by some other Judge or officer of the court
authorised by the Chief Justice of India to make rules for
the purpose. Similar provision is found in Article 229
dealing with recruitment of officers and servants and
the expenses of the High Courts. Sub-article (2) thereof
lays down the rule making power of the Chief Justice of
the Court concerned or by some other Judge or officer of
the Court authorised by the Chief Justice to make rules
for the purpose subject to the provisions of any law
made by any Legislature of the State. Article 148 deals
with Comptroller and Auditor-General of India. Sub-
article (5) thereof deals with rule making power of the
President regarding the conditions of service of persons
serving in the Indian Audit and Accounts Department
and the administrative powers of the Comptroller and
Auditor-General subject to any provisions of the
Constitution or any law made by the Parliament in this
connection. Article 98 deals with Secretariat of
Parliament. Sub- article (3) thereof provides until
provision is made by Parliament under clause (2), the
President may, after consultation with the Speaker of
the House of the People or the Chairman of the Council of
States, as the case may be, make rules regulating the
recruitment, and the conditions of service of persons
appointed, to the secretarial staff of the House of the
People or the Council of States, and any rules so made
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shall have effect subject to the provisions of any law
made under the said clause. Similarly, for Secretariat of
State Legislature, we find Article 187 which deals with
separate secretariat staff for the House or each House of
the Legislature of a State. Sub-article (3) thereof runs
parallel to sub-article (3) of Article 98 and provides that
until provision is made by the Legislature of the State
under clause (2), the Governor may, after consultation
with the Speaker of the Legislative Assembly or the
Chairman of the Legislative Council, as the case may be,
make rules regulating the recruitment, and the
conditions of service of persons appointed, to the
secretarial staff of the Assembly or the Council and any
rules so made shall have effect subject to the provisions
of any law made under the said clause. Article 324 is
found in Part XV which deals with Superintendence,
direction and control of elections to be vested in an
Election Commission. Sub-article (5) thereof provides
that subject to the provisions of any law made by
Parliament, the conditions of service and tenure of office
of the Election Commissioners and the Regional
Commissioners shall be such as the President may by
rule determine.
…..
25. We may also refer to Part XI of the constitution,
especially Chapter I dealing with Legislative Relations
laying down the Distribution of Legislative Powers.
Article 245 deals with Extent of Laws made by
Parliament and by the Legislatures of States. Sub-article
(1) thereof provides that Subject to the provisions of
this Constitution, Parliament may make laws for the
whole or any part of the territory of India, and the
Legislature of a State may make laws for the whole or
any part of the State. Thus, the legislative powers of
Parliament and the Legislature of the State are
expressly made subject to other provisions of the
Constitution. Similarly, Article 246 laying down the
category of subject-matter of laws made by Parliament
and by the Legislatures of States enumerated in Lists I,
II and III of the Seventh Schedule will also have to be
read subject to Article 245. Meaning thereby, if other
provisions of the Constitution cut down or exclude the
Legislative powers of Parliament or State Legislature
qua given topics, then those other provisions have to be
given their full play and effect.
26. So far as recruitment to District and Subordinate
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Judiciary is concerned, we have therefore, to turn to the
twin Articles found in Chapter VI of Part VI dealing with
Subordinate Courts. The relevant two Articles read as
under :
233. Appointment of Judges: (1) Appointment
of persons to be, and the posting and
promotion of, district judges in any State shall
be made by the Governor of the State in
consultation with the High Court exercising
jurisdiction in relation to such State.
(2) A person not already in the service of the
Union or of the State shall only be eligible to be
appointed a district judge if he has been for
not less than seven years an advocate or a
pleader and is recommended by the High
Court for appointment.
234. Recruitment of persons other than
district judges to the judicial service:
Appointments of persons other than district
judges to the judicial service of a State shall be
made by the Governor of the State in
accordance with rules made by him in that
behalf after consultation with the State Public
Service Commission and with the High Court
exercising jurisdiction in relation to such
State. (Emphasis supplied)
Article 233 dealing with appointment of District Judges,
on its own express terminology projects a complete
scheme regarding the appointment of persons to District
Judiciary as District Judges. In the present appeals, we
are concerned with direct recruitment to the cadre of
District Judges and hence sub-article (2) of Articles 233
becomes relevant. Apart from laying down the eligibility
criterion for candidates to be appointed from the Bar as
direct District Judges the said provision is further
hedged by the condition that only those recommended
by the High Court for such appointment could be
appointed by the Governor of the State. Similarly, for
recruitment of judicial officers other than District
Judges to the Judicial Service at lower level, complete
scheme is provided by Article 234 wherein the Governor
of the State can make such appointments in accordance
with the rules framed by him after consulting with the
State Public Service Commission and with the High
Court exercising jurisdiction in relation to such State. So
far as the Public Service Commission is concerned, as
seen from Article 320, the procedure for recruitment to
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the advertised posts to be followed by it is earmarked
therein. But the role of the Public Service Commission
springs into action after the posts in a cadre are
required to be filled in by direct recruitment and for that
purpose due intimation is given to the Commission by
the State authorities. They have obviously to act in
consultation with the High Court so far as recruitment to
posts in Subordinate Judiciary is concerned. Of course, it
will be for the High Court to decide how many vacancies
in the cadre of District Judges and Subordinate Judges
are required to be filled in by direct recruitment so far as
the District Judiciary is concerned and necessarily only
by direct recruitment so far as Subordinate Judiciary is
concerned. This prime role of the High Court becomes
clearly discernible from Art. 235 which deals with the
control of the High Court over the Subordinate Judiciary
and also of Subordinate Courts. The said Article provides
as under:
“235. Control over subordinate courts. The
control over district courts and courts
subordinate thereto including the posting
and promotion of, and the grant of leave to,
persons belonging to the judicial service of a
State and holding any post inferior to the
post of district judge shall be vested in the
High Court, but nothing in this article shall be
construed as taking away from any such
person any right of appeal which he may
have under the law regulating the conditions
of his service or as authorising the High
Court to deal with him otherwise than in
accordance with the conditions of his service
prescribed under such law.”
It is in the light of the aforesaid relevant scheme of
the Constitution that we now proceed to tackle the main
controversy posed for our consideration.
…..
28. Since it is held that Section 4 of the impugned Act,
on its express terms, covers direct recruitment to posts
in the cadre of District Judiciary as well as to
Subordinate Judiciary in the State of Bihar, moot
question arises as to whether Section 4 can be sustained
on the touchstone of the relevant Constitutional scheme
governing the recruitment and appointments to these
posts. For coming to the grip of this problem, we have to
keep in view the salient features of the Constitution
emanating from the Directive Principles of State Policy
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as laid down by Article 50 which underscores the felt
need of separation of the Judiciary from the Executive.
For achieving that purpose, the Constitution has made
separate provisions regarding the recruitment and
appointment to the cadre of District Judges as well as
the Subordinate Judiciary as found in Chapter VI of Part
VI of the Constitution and, as seen earlier, these
provisions are conspicuously not included in part XIV
dealing in general with Services under the Union and the
States. Article 309 itself, which is of general nature,
dealing with regulation of Recruitment and conditions of
Service of persons serving in the Union or a State is
expressly made subject to other provisions of the
Constitution.
29. The first part of Article 235 itself lays down that it
is for the High Court to control the District Courts and
Courts subordinate thereto and in exercise of that
control vesting in the High Court, regulation of posting
and promotions and granting of leave to persons
belonging to the Judicial Services has to be done by the
High Court. It is, of course, true that in the second part
of Article 235 judicial officers already appointed to the
Service have their statutory right of appeal and the
right to be dealt with regarding other service conditions
as laid down by any other law for the time being in force,
expressly protected. But these provisions of the second
part only enable the Governor under Article 309, in the
absence of any statutory enactment made by the
competent Legislature for regulating the conditions of
service of judicial officers who are already recruited and
have entered and become part and parcel of the State
service, to promulgate appropriate rules on the subject.
But so far as the entry points are concerned, namely,
recruitment and appointment to the posts of Presiding
Officers of the courts subordinate to the High Courts,
only Articles 233 and 234 would govern the field. Article
234 lays down the procedure and the method of
recruiting judicial officers at grass-root level being
Subordinate Judges and Munsiffs as laid down by the
1955 Rules. These Rules are also framed by the
Governor of Bihar in exercise of his powers under
Article 234 obviously after the consultation of the High
Court and the Public Service Commission. Rules
regarding the procedure of selection to be followed by
the State Public Service Commission as found in Rules 4
to 17 deal with the method to be adopted by the Public
Service Commission while selecting candidates who offer
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their candidature for the posts advertised to be filled in.
These Rules obviously require consultation with the
Commission on the procedural aspect of selection
process. But so far as the High Court is concerned, its
consultation becomes pivotal and relevant by the thrust
of Article 233 itself as it is the High Court which has to
control the candidates, who ultimately on getting
selected, have to act as Judges at the lowest level of the
Judiciary and whose posting, promotion and grant of
leave and other judicial control would vest only in the
High Court, as per Article 235 first part, once they enter
the judicial service at grass-root level. Thus consultation
of the Governor with the High Court under Article 234 is
entirely of a different type as compared to his
consultation with the Public Service Commission about
procedural aspect of selection. So far as direct
recruitment to the posts of District Judges is concerned,
Article 233 sub-article (2) leaves no room for doubt that
unless the candidate is recommended by the High Court,
the Governor cannot appoint him as a District Judge.
Thus Articles 233 and 234, amongst them, represent a
well-knit and complete scheme regulating the
appointments at the apex level of District Judiciary,
namely, District Judges on the one hand and
Subordinate Judges at the grass-root level of Judiciary
subordinate to the district court. Thus Subordinate
Judiciary represents a pyramidical structure. At base
level i.e. grass- root level are the Munsiffs and
Magistrates whose recruitment is governed by Article
234. That is the first level of the Judiciary. The second
level represents already recruited judicial officers at
grass-root level, whose working is controlled by the High
Court under Article 235 first part. At the top of this
pyramid are the posts of District Judges. Their
recruitment to these posts is governed by Article 233. It
is the third and the apex level of Subordinate Judiciary.
30. It has also to be kept in view that neither Article
233 nor Article 234 contains any provision of being
subject to any enactment by appropriate Legislature as
we find in Articles 98, 146, 148, 187, 229(2) and
324(5). These latter Articles contain provisions
regarding the rule making power of the concerned
authorities subject to the provisions of the law made by
the Parliament or Legislature. Such a provision is
conspicuously absent in Articles 233 and 234 of the
Constitution of India. Therefore, it is not possible to
agree with the contention of learned counsel for the
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appellant-State that these Articles only deal with the
rule making power of the Governor, but do not touch the
legislative power of the competent Legislature. It has to
be kept in view that once the Constitution provides a
complete Code for regulating recruitment and
appointment to District Judiciary and to Subordinate
Judiciary, it gets insulated from the interference of any
other outside agency. We have to keep in view the
scheme of the Constitution and its basic framework that
the Executive has to be separated from the Judiciary.
Hence, the general sweep of Article 309 has to be read
subject to this complete Code regarding appointment of
District Judges and Judges in the Subordinate
Judiciary.
31. In this connection, we have also to keep in view
Article 245 which, in its express terms, is made subject
to other provisions of the Constitution which would
include Articles 233 and 234. Consequently, as these
twin Articles cover the entire field regarding
recruitment and appointment of District Judges and
Judges of the Subordinate Judiciary at base level pro
tanto the otherwise paramount legislative power of the
State Legislature to operate on this field clearly gets
excluded by the Constitutional scheme itself. Thus both
Articles 309 and 245 will have to be read subject to
Articles 233 and 234 as provided in the former Articles
themselves.
…..
34. It has also to be kept in view that judicial
independence is the very essence and basic structure of
the Constitution. We may also usefully refer to the latest
decision of the Constitution Bench of this Court in
Registrar (Admn.), High Court of Orissa, Cuttack etc. vs.
Sisir Kanta Satapathy (Dead) by LRs., (1999) 7 SCC
725: (1999 AIR SCW 3246: AIR 1999 SC 3265: 1999
Lab IC 3243), wherein K.Venkataswami, J., speaking for
the Constitution Bench, made the following pertinent
observations in the very first two paras regarding
Articles 233 to 235 of the Constitution of India :
“An independent judiciary is one of the basic
features of the Constitution of the Republic.
Indian Constitution has zealously guarded
independence of judiciary. Independence of
judiciary is doubtless a basic structure of the
Constitution but the said concept of
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independence has to be confined within the
four corners of the Constitution and cannot go
beyond the Constitution.
The Constitution Bench in the aforesaid
decision also relied upon the observations of
this Court in All India Judges Association &
Ors.etc. (supra), wherein on the topic of
regulating the service conditions of Judiciary
as permitted by Art. 235 read with Art. 309,
it had been observed as under:
….. .the mere fact that Art. 309 gives power to
the executive and the legislature to prescribe
the service conditions of the judiciary does
not mean that the judiciary should have no
say in the matter. It would be against the
spirit of the Constitution to deny any role to
the judiciary in that behalf, for theoretically it
would not be impossible for the executive or
the legislature to turn and twist the tail of the
judiciary by using the said power. Such a
consequence would be against one of the
seminal mandates of the Constitution,
namely, to maintain the independence of the
judiciary.”
In view of this settled legal position, therefore,
even while operating in the permissible field of
regulating other conditions of service of already
recruited judicial officers by exercising power under
Art. 309, the concerned authorities have to keep in
view the opinion of the High Court of the concerned
State and the same cannot be whisked away.
35. In order to fructify this Constitutional intention
of preserving the independence of Judiciary and for
fructifying this basic requirement, the process of
recruitment and appointment to the District
Judiciary with which we are concerned in the
present case, is insulated from outside legislative
interference by the Constitutional makers by
enacting a complete Code for that purpose, as laid
down by Articles 233 and 234. Consultation with
the High Court is, therefore, an inevitable essential
feature of the exercise contemplated under these
two Articles. If any outside independent
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interference was envisaged by them, nothing
prevented the founding fathers from making
Articles 233 and 234 subject to the law enacted by
the Legislature of States or Parliament as was done
in the case of other Articles, as seen earlier. In the
case of State of Kerala vs. Smt.A.Lakshmikutty &
Ors ., (1986) 4 SCC 632: (AIR 1987 SC 331 : 1987
Lab IC 447), a two member Bench of this Court,
speaking through Sen,J., placing reliance on the
Constitution Bench judgment of this Court in
Chandra Mohan vs. State of U.P ., (1967) 1 SCR 77
(AIR 1966 SC 1987, made the following pertinent
observations in paras 22 to 25 at pages 647-648,
which read as under :
“22. The heart of the matter is that
consultation between the State Government
and the High Court in the matter of
appointment of District Judges under Art.
233(1) of the Constitution must be real, full
and effective. To make the consultation
effective, there has to be an interchange of
views between the High Court and the State
Government, so that any departure from the
advice of the High Court would be explained to
the High Court by the State Government. If
the State Government were simply to give lip
service to the principle of consultation and
depart from the advice of the High Court in
making judicial appointments without
referring back to the High Court the
difficulties which prevent the government
from accepting its advice, the consultation
would not be effective and any appointment of
a person as a District Judge by direct
recruitment from the bar or by promotion
from the judicial services under Art. 233(1)
would be invalid. Unless the State
Government were to convey to the High Court
the difficulties which prevent the government
from accepting its advice by referring back
the matter the consultation would not be
effective.
23. Indubitably, the power of appointment of
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persons to be District Judges conferred on the
Governor, meaning the State Government, under
Art. 233(1) in consultation with the High Court is
an executive function. It has been settled by a
long line of decisions of this Court starting from
Chandra Mohan v. State of U.P. to M.M.Gupta v.
State of J & K that the power of the State
Government is not absolute and unfettered but is
hedged in with conditions. The exercise of the
power of the Governor under Art. 233(1) in the
matter of appointment of District Judges is
conditioned by consultation with the exercise of
the power that the power can only be exercised in
consultation with the High Court.
24. Appointment of persons to be, and the posting
and promotion of, District Judges in any State,
shall be made by the Governor of the State under
Art. 233(1) in consultation with the High Court
exercising jurisdiction in relation to such State.
Sub-article (2) thereof provides that a person not
already in the service of the Union or of the State
shall only be eligible to be appointed as a District
Judge if he has been for not less than seven years
an advocate or a pleader and is recommended by
the High Court for appointment. It is therefore
obvious that eligibility of appointment of persons
to be District Judges by direct recruitment from
amongst the members of the bar depends entirely
on the recommendation of the High Court. The
State Government has no power to appoint any
person as a District Judge except from the panel
of names forwarded by the High Court. As stated,
the decisions starting from Chandra Mohan v.
State of U.P . have established the principle as a
rule of law, that consultation between the
Governor and the High Court in the matter of
appointment of District Judges under Article
233(1) must not be empty formality but real, full
and effective.
25. In Chandra Mohan v. State of U.P. Subba Rao,
C.J. speaking for a unanimous court observed :
The exercise of the power of appointment by the
Governor is conditioned by his consultation with
the High Court, that is to say, he can only appoint
a person to the post of District Judge in
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consultation with the High Court. The object of
consultation is apparent. The High Court is
expected to know better than the Governor in
regard to the suitability or otherwise of a person,
belonging either to the Judicial Service or to the
bar, to be appointed as a District Judge.
Therefore, a duty is enjoined on the Governor to
make the appointment in consultation with a body
which is the appropriate authority to give advice
to him. These provisions indicate that the duty to
consult is so integrated with the exercise of the
power that the power can be exercised only in
consultation with the person or persons
designated therein.
To the same effect are the decisions in
Chandramouleshwar Prasad v. Patna High Court,
(1969) 3 SCC 56 : (AIR 1970 SC 370), High Court of P &
H v. State of Haryana, (1975) 1 SCC 843 : (AIR 1975 Sc
613) : 1975 Cri LJ 375), A.Panduranga Rao v. State of
A.P ., (1975) 4 SCC 709 : (AIR 1975 SC 1922 : 1975 Lab
IC 1452) and M. M. Gupta v. State of J. & K. (1982) 3
SCC 412 : (AIR 1982 SC 1579 : 1982 Lab IC 1970).
36. It becomes, therefore, obvious that no recruitment
to the post of a District Judge can be made by the
Governor without recommendation from the High Court.
Similarly, appointments to Subordinate Judiciary at
grass-root level also cannot be made by the Governor
save and except according to the rules framed by him in
consultation with the High Court and the Public Service
Commission. Any statutory provision bypassing
consultation with the High Court and laying down a
statutory fiat as is tried to be done by enactment of
Section 4 by the Bihar Legislature has got to be held to
be in direct conflict with the complete Code regarding
recruitment and appointment to the posts of District
Judiciary and Subordinate Judiciary as permitted and
envisaged by Articles 233 and 234 of the Constitution.
Impugned Section 4, therefore, cannot operate in the
clearly earmarked and forbidden field for the State
Legislature so far as the topic of recruitment to District
Judiciary and Subordinate Judiciary is concerned. That
field is carved out and taken out from the operation of
the general sweep of Art. 309 .
37. It is, of course, true as laid down by a catena of
decisions of this Court, that topics of constitution of
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courts and services, laying down of rules regarding the
conditions of service other than those expressly placed
within the jurisdiction of the High Court by Articles 233
and 235, providing for age of superannuation or other
retirement benefits to judicial officers, fixing pay scales,
diversification of cadres may form part of general
recruitment and conditions of services falling within the
spheres of Governors rule making power under Art. 309
read with second part of Art. 235 or may even be made
subject matter of legislation by competent Legislature in
exercise of its legislative powers under entry 41 of List
II or for that matter entry 11A of List III of the Seventh
Schedule. But save and except this permitted field, the
State Legislature cannot enter upon the forbidden field
expressly reserved for consultation with the High Court
by the thrust of Articles 233 and 234 so far as the initial
entry point of recruitment to judicial service at grass
root level or at the apex level of the District Judiciary is
concerned. A three-Judge Bench of this Court in the case
of A.Panduranga Rao vs. State of Andhra Pradesh &
Ors ., AIR 1975 SC 1922, speaking through Untwalia, J.,
considered the question whether any one can be
appointed by the Governor as a District Judge without
being recommended by the High Court. Relying on the
Constitution Bench decision of this Court in Chandra
Mohans case (supra) in para 7 of the Report,
observations were made as under:
“There are two sources of recruitment, namely,
(i) service of the Union or the State, and (ii)
members of the Bar. The said Judges from the
first source are appointed in consultation with
the High Court and those from the second source
are appointed on the recommendation of the
High Court.”
And thereafter following pertinent observations were
made in para 8, which read as under:
“A candidate for direct recruitment from the Bar
does not become eligible for appointment without
the recommendation of the High Court. He
becomes eligible only on such recommendation
under clause (2) of Art. 233. The High Court in
the judgment under appeal felt some difficulty in
appreciating the meaning of the word
recommended. But the literal meaning given in
the Concise Oxford Dictionary is quite simple and
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apposite. It means suggest as fit for employment.
In case of appointment from the Bar it is not
open to the Government to choose a candidate
for appointment until and unless his name is
recommended by the High Court.”
It is, therefore, obvious that the State Legislature has no
role to play while controlling appointments of District
Judges under Art. 233 or appointment of Civil Judges to
Subordinate Judiciary at grass-root level under the
District Judiciary and it is only the Governor who is
entrusted with the said task which he has to undertake
after consultation with the High Court and by framing
appropriate rules for recruitment to Judiciary at grass-
root level as enjoined by Art. 234 and can only act on
recommendation by the High Court for direct
recruitment from the Bar for being appointed as District
Judges as laid down by Art. 233 sub-article (2). There is
no third method or third authority which can intervene
in the process or can have its say, whether legislative
authority or executive authority, as the case may be,
independently of the complete scheme of such
recruitment as envisaged by the aforesaid two Articles.
It is, therefore, difficult to appreciate the contention of
learned senior counsel for the appellant-State that
paramount legislative power of the State Legislature
stands untouched by the scheme of the aforesaid two
Articles of the Constitution.
29. Thus, in the main judgment delivered by His Lordship
Hon’ble Mr. Justice S. B. Majmudar and the views expressed in
the concurring orders and judgments by Hon’ble Mr. Justice G. B.
Pattanaik and U. C. Banerjee, it has been held that under Article
234, the rule making power of the Governor is hedged in by
consultation with the High Court and the Public Service
Commission. So far as the Public service Commission is
concerned, as per Article 320, sub-article (4), it is not required to
be consulted in respect of the manner in which any provision
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referred to in clause (4) of Article 16 may be made or as respects
the manner in which effect may be given to the provisions of
Article 335. Consultation with the High Court as envisaged by
Article 234 is for fructifying the constitutional mandate of
preserving the independence of judiciary, which is its basic
structure. The Public Service Commission has no such
constitutional imperative to be fulfilled. The scope of examining
body's consultation can never be equated with that of
consultation with the appointing body whose agent is the former.
30. Chapter VI of the Constitution of India is titled as
“Subordinate Courts” and opens with Article 233 dealing with
appointment of District Judge. Thereunder, appointment of
persons to be, and the posting and promotion of, district judges in
any State shall be made by the Governor of the State in
consultation with the High Court exercising jurisdiction in
relation to such State. Clause (2) of Article 233 is not relevant
for our purpose. Similarly, we would not refer to Article 233A.
Article 234 is the relevant Article for us. That deals with
recruitment of persons other than District Judge to the judicial
service. Appointments of persons other than District Judge to
the judicial service of a State shall be made by the Governor of the
State in accordance with rules made by him in that behalf after
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consultation of the State Public Commission and with the High
Court exercising jurisdiction in relation to such State. Article
235 clarifies that absolute control over subordinate courts shall
be that of the High Court. Article 236 entitled as “interpretation”
defines both expressions “District Judge” and “Judicial Service”.
The expression “judicial service” means a service consisting
exclusively of persons intended to fill the post of District Judge
and other judicial posts inferior to the post of District Judge.
31. The scheme is therefore that these Articles are not made
subordinate to or subject to any other provision of the
Constitution of India. In juxtaposition to this, Article 309 opens
with the words “subject to the provisions of the Constitution”.
Once these words “subject to the provisions of this Constitution”
are referred by the Hon’ble Supreme Court in the above
authoritative pronouncement, that is to conclude that Article 309
would be subject to Articles 233 to 235. This, therefore, does not
mean that insofar as judicial service is concerned, the State has
no power to deal in matters covered by the above referred
Articles as far as subordinate judiciary. The Governor’s power is
to be exercised after consultation with the Public Service
Commission and the High Court. However, the degree of this
consultation is distinct and separate. Therefore, it is not
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permissible to agree with the view and entertained generally that
the MPSC plays a prominent role. Reliance placed by Ms. Bhende
on the Judicial Service Rules and particularly the definitions set
out of the terms “commission” and “recruiting authority” is,
therefore, not proper and wholly sound in law. The term
“commission” has been defined. However, the term “recruiting
authority” means the High Court or the commission as the case
may be. Therefore, one cannot say that the High Court and the
MPSC play similar roles. The proviso to Article 309 and the
Article having been understood in the above perspective, it must
not dilute the mandate of Articles 233 to 235 of the Constitution
of India. It is, therefore, impermissible for the MPSC to take any
steps or measures, which would interfere with the independence
and the distinct superior authority of the High Court. It is merely
assisting the High Court and not seeking to replace it in the
matters of recruitment. Once Articles 233 to 236 are read in the
manner indicated by the Hon’ble Supreme Court of India, then, it
is apparent that in the recruitment of persons in judicial service,
the High Court has absolute authority in matters covered by
these Articles. Article 233 and 234 deal with appointment of
District Judge and persons other than District Judge. The High
Court's role and duty therein cannot be taken over or assumed by
any other authority. The Procedural Rules of the MPSC can never
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be said to be overriding the mandate contained in Judicial Service
Rules.
32. The Judicial Service Rules contains the definition of the
term “service” and it is defined to mean the Maharashtra Judicial
Service. It also has several Chapters. By chapter II, the
“Constitution of Service” is provided and spelt out. The entire
service comprises and consist of cadres specified in column (2) of
the Schedule appended to Rule 1(2)(3). By Chapter III,
recruitment is dealt with. The appointing authority, in rule 4, for
the cadre of District Judges and Civil Judge, Junior Division, shall
be the Governor and for promotion to the cadre of Senior Civil
Judges shall be the High Court. Rule 5 provides for method of
recruitment, qualification and age limit. Then, comes Rule 6,
which reads as under:-
“6. Recruitment by Nomination
(1)(a) On or before the 15th January of every year in
case of the Civil Judge, Junior Division and in case of
District Judges the 31st March of every year, the
Recruiting Authority shall be informed of the number of
existing vacancies and the vacancies that are likely to
occur within one year for the post of Civil Judge, Junior
Division and District Judge.
(b) Every year the Recruiting Authority shall, by
advertisement in the Official Gazette and in at least two
newspapers, invite applications in such form as it may
determine, for intending candidates, who possess the
qualifications for filling in the vacancies.
(c) For the purpose of shortlisting the candidates, the
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Recruiting Authority may, if necessary, hold
preliminary written examination comprising of multiple
choice objective type questions, which can be scrutinized
by computers and call upon the candidates obtaining the
cut-off marks, as may be fixed by the Recruiting
Authority, to appear for final written examination,
maintaining the ratio of 1:10 of the available vacancies
to the successful candidates:
Provided that if there are more than one candidates who
have secured identical cut-off marks as fixed by the
Recruiting Authority for maintaining ratio of 1:10, all
such candidates shall be called upon to appear for final
written examination.
(d) (i) (a) The Recruiting Authority shall hold
written examinations in Civil Law and Criminal Law,
carrying 100 marks each, having duration of 3 hours
each, respectively, for the post of Civil Judge, Junior
Division
(b) The Recruiting Authority shall hold
Written examination consisting of one or more papers
carrying total 200 marks for the post of District Judge
to be filled up by nomination.
(ii) The medium of written examination for the post
of Civil Judge, Junior Division shall be either Marathi or
English. The candidate shall specifically mention in his
application form about his choice of medium. Choice
once given shall not be allowed to be changed
subsequently in any case;
(iii) The medium of written examination for the
post of District Judge shall be English.
(e) (i) The candidate applying for being appointed
for the post of Civil Judge, Junior division who secures
not less than 50 marks in each paper shall be eligible for
viva-voce carrying 50 marks.
(ii) The candidate applying for being appointed
by nomination for the post of District Judge who secures
not les than 50% marks, provided if there is more than
one paper, then candidate who secures not less than
50% marks in each paper, shall be eligible for viva-voce
carrying 50 marks:
Provided that the candidates belonging to
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communities recognized as backward by the
Government for the purpose of recruitment who secure
not less than 45% marks as aforesaid shall be eligible for
the vica-voce.
Provided further that, the Recruiting Authority
shall call the candidates for viva-voce in the ratio of 1:3
of the available vacancies to the successful candidates:
Provided also that if there are more than one
candidates who have secured identical cut-off marks as
fixed by the Recruiting Authority for maintaining the
ratio of 1:3, all such candidates shall be called upon to
appear for viva-voce:
Provided also that only such candidates who
obtains at least 40% of marks in viva-voce test shall be
eligible for selection.
(f) The object of the viva-voce examination under
these Rules is to assess the suitability of the candidate
for the cadre by judging the mental alertness, knowledge
of law, clear and logical exposition, balance of judgment,
skills, attitude, ethics, power of assimilation, power of
communication, character, intellectual depth and the
like of the candidate.
(2) (a) 13 The mode of evaluating the performance
shall be specified in numerical marks obtained in
written and viva-voce examination. The scheme of
examination of the candidates including written and
viva-voce shall be framed by the High Court in
consultation with the Commission.
(b) (deleted)
(c) A candidate who has committed any copying or
misconduct during course of written examination, or has
been convicted in criminal case or is compulsorily
retired, removed or dismissed from judicial service or
could not successfully complete probation period of any
post in judicial service shall not be eligible to appear for
the Competitive Examination.
(3) (a) The Recruiting Authority, on the basis of
cumulative marks secured by a candidate, shall prepare
in the order of merit, a list of candidates eligible for
appointment. The number of candidates to be included in
the list shall be equal to the number of vacancies as on
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the date of examination.
(b) Besides the above list, the Recruiting Authority
shall prepare wait list, equal to ten percent of the
number of vacancies notified for recruitment or one,
whichever is higher.
(4) (a) The Recruiting Authority shall recommend the
names of selected candidates by completing the selection
process.
(b) The Government within two months of the
names of the selected candidates being forwarded to it
shall complete the process of verification of antecedents
and medical examination and issue appointment orders.
(c) The lists so prepared under clause (a) of sub-
rule (3) above shall be published within one month of
preparation in the Official Gazette and cease to be
operative on the expiry of one year from the date of such
publication.
(d) The High Court may issue the posting orders
after appointments are notified by the Government.
(5) Every candidate applying for appointment by
nomination shall furnish such certificates, from two
respectable persons unconnected with his College or
University and not related to him, testifying to his
character, on declarations as to educational
qualification, experience, age, caste, etc. as may be
required by the Recruiting Authority, besides
certificates.
(6) The decision of the Recruiting Authority as to the
eligibility or otherwise of a candidate for admission to
the written and viva-voce examination shall be final.
(7) Candidates whose names are included in the list
prepared under clause (a) of sub-rule (6) above shall be
considered for appointment in the order in which their
names appear in the list and subject to rule 8, they may
be appointed by the appointing authority in the
vacancies notified under clause (a) of sub-rule 1 above.
Candidates whose names are included in the wait list
shall be considered for appointment after the candidates
whose names are included in the list published under
sub-clause (a) of sub-rule (3) above have been appointed
and have not joined or have not been appointed for any
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reason. Inclusion of the name of a candidate in any list
prepared under clause (3) shall not confer any right of
appointment on such candidate.”
33. A bare perusal of Rule 6 would indicate that it is dealing
th
with recruitment by nomination. On or before every 15 January
every year in case of the Civil Judge, Junior Division and in case
st
of District Judges the 31 March of every year, the Recruiting
Authority shall be informed of the number of existing vacancies
and the vacancies that are likely to occur within one year for the
post of Civil Judge, Junior Division and District Judge. Every
year, the recruiting authority shall, by advertisement in the
official gazette and in at least two newspapers, invite applications
in such form as it may determine, for intending candidates, who
possess the qualification for filling in the vacancies. That is how
one must understand the definition of the term or word
“recruiting authority”. Wherever the commission and as the case
may be High Court has a role, it has been indicated with sufficient
clarity. It is also well settled that in the recruitment process, it is
not for the MPSC to conclude the matters. There is a role of an
expert and who is ordinarily a sitting Judge of this court.
Therefore, what the recruiting authority does in terms of these
rules is to act after obtaining the requirements. These
requirements are obtained and through the channels, namely,
High Court and the Government. It is the High Court which
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indicates and in terms of this rule the number of posts required to
be filled in. The further steps, therefore, and within the sub-rules
of Rule 6 are contemplated and that too not to the exclusion of the
High Court. There is no exclusive power vesting in the
commission and as is commonly understood.
34. By Rule 6(3) the recruiting authority, on the basis of
cumulative marks secured by a candidate, shall prepare in the
order of merit, a list of candidates eligible for appointment. The
number of candidates to be included in the list shall be equal to
the number of vacancies as on the date of examination. Clause
(b) of sub-rule (3) of Rule 6 speaks of wait-list equal to ten
percent of the number of vacancies notified for recruitment or
one whichever is higher. Then comes sub-rule (4) of Rule 6,
which states that the recruitment authority shall recommend the
names of selected candidates by completing the selection process.
Thereafter, the Government, on receipt of the names of selected
candidates after the process of verification of antecedents and
medical examination, issue appointment orders. Thereafter, by
clause (c) of sub-rule (4) of rule 6 and which is heavily relied
upon by both, Mr. Avhad and Mr. Mankapure, it is provided that
the lists so prepared under clause (a) of sub-rule (3) shall be
published within one month of preparation in the official gazette
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and cease to be operative on the expiry of one year from the date
of such publication. It may be that a composite list is made. In
this case, it is styled as merit list as labeled by the counsel for the
petitioners. That contains the names of candidates recommended
for appointment to the notified vacancies. The names appear in
the order of merit. Therefore, the assumption is Serial Nos.1 to
227 are the candidates recommended in order of merit for
appointment against 227 vacancies. The names from Serial
No.228, once again in order of merit, are wait-listed candidates as
if a single list is prepared, its life is limited. The controversy is
whether this list and so prepared under the above sub-rule and
clause is mandated to be in operation for a period of one year
from the date of publication. Sub-rule (7) of Rule 6 has been
relied upon to urge that it is only those candidates whose names
are included in the list prepared under clause (a) of sub-rule (6)
shall be considered for appointment in the order in which their
names appear in the list and subject to Rule 8, they may be
appointed by the appointing authority in the vacancies notified
under clause (a) of sub-rule (1). The candidates whose names are
included in the wait-list shall be considered for appointment after
the candidates whose names are included in the list published
under sub-clause (a) of sub-rule (3) have been appointed but they
have not joined or have not been appointed for any reason.
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35. However, Ms. Bhende would rely upon the MPSC Procedural
Rules. She would submit that these rules are also clear. They
deal with only such matters and seek to clarify those issues which
are not covered or dealt with in the Judicial Service Rules. For
appreciation of this argument, we would prefer to refer to the
MPSC Procedural Rules.
36. As has been set out in the preamble to these rules, these are
rules framed by the commission to regulate its internal
procedure. They were revised at the instance of the Union Public
Service Commission so as to have uniform pattern all over the
country and to accommodate the relevant judgments of the
various courts of law. These rules have been framed so as to
make the functioning of the commission more transparent,
impartial, rational, reasonable, fair and equitable. The
modifications have been carried out so as to fulfill the mandate of
Article 320 of the Constitution of India. Therefore, when these
rules contain the definitions and further procedural matters,
including the matters to be decided by the commission (see Rule
4) and mode of recruitment, what it clarifies is that the MPSC or
PSC enters the scene on receipt of requisitions from the
Government. The recruitment is based on competitive
examination. Various clauses of Rule 8 and which have been
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heavily relied upon cover the aspects of direct recruitment, the
mode of the same and till the stage of the interview. Rule 10 deals
with appointment of Interview Committee and declaration of
result. Various sub-rules of that rule would indicate as to how the
Interview Committee is appointed, how it should be assisted and
how the results have to be declared. The preparation of final
recommendation list for deciding the ranking of the candidates
securing equal marks is by following a criteria set out in Rule
10(7). We do not see any substance in the first complaint of
Mr.Avhad that number of candidates have been awarded same
marks. Moreover, we do not find any challenge to the order in
which these candidates securing equal marks have been listed in
the merit list. Once sub-rule (7) of Rule 10 sets out that
procedure and a broad guideline is given, then, in the given facts,
we do not fault the preparation of the merit list by the MPSC. It
could be for varied reasons, lot of candidates obtain the same
marks, but their ranking in the order of merit has to be by
definite guideline and following a proper regulation. That has
been indicated in sub-rule (7) of rule 10. Then comes sub-rule (8)
of Rule 10, which reads as under:-
“(8)(a) In case of recruitment by Competitive
Examination wherever multiple cadre posts are
involved, the reserve list shall not be maintained. The
posts fallen vacant due to non-acceptance of the offer of
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appointment by the candidates recommended, shall be
filled in through subsequent Competitive Examination.
When only single cadre is involved for selection by
competitive examination the reserve list shall be
maintained for a period of one year from the date of
declaration of result or up to the publication of
subsequent advertisement for recruitment to the same
post “whichever” is earlier.
(b) In case of direct recruitment, the reserve list shall
be maintained to the extent of 50% of the posts
advertised and shall lapse on the expiry of one year from
the date of declaration of the result or on the publication
of subsequent advertisement for recruitment to the
concerned post, whichever is earlier.”
37. A bare perusal thereof would indicate as to how the
commission holds the competitive examination wherever
multiple cadre posts and single cadre are involved. There is no
challenge to that part of the sub-rule and particularly clause (a)
thereof, where in case of multiple cadre posts, there is no reserve
list. We would understand the expression “reserve list” to be
equivalent to a wait-list for that deals with a list for filling up
those posts falling due to non acceptance of the offer of
appointment by candidate recommended. However, in multiple
cadre post, no such reserve list shall be maintained and such
posts falling vacant due to non acceptance of the offer by
candidate recommended shall be filled in through subsequent
competitive examination. When, only single cadre is involved for
selection by competitive examination, the reserve list shall be
maintained for a period of one year from the date of declaration of
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result or up to the publication of subsequent advertisement for
recruitment to the same post, whichever is earlier. The challenge
is to the extent that if such reserve list gets exhausted after
publication of the subsequent advertisement for recruitment to
the same post, that is earlier to the period of one year. The
argument is that this is contrary to the Judicial Service Rules.
38. We must at once notice that the challenge to the subject rule
is at the instance of those petitioners who are in the order of
merit but not amongst serial numbers 1 to 227. They are below
serial no.227. One of them is at serial number 228 and other at
serial number 307. Even those who are within or below serial
number 227 have no vested right. Therefore, the petitioners'
position is no better. The wait listed candidates all the more
cannot claim any right and that too higher than higher ranked
candidates. In the present case, as against 227 notified
candidates in the advertisement of 2015, 227 names have been
recommended and at best what we can term the balance names as
those of wait or reserved list candidates. That it is one or a single
list, therefore, makes no difference. Thus, this list contains the
names of both, the recommended and wait-listed candidates. In
terms of the Judicial Service Rules, this list remains in force for
one year from the date of its publication. However, we would
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clarify further that such reserve list would be operative for “one
year from the date of declaration of result” are the expressions to
be found in Rule 10(8) of the MPSC Rules but those commencing
after the word “or”, or separated by word “or” therein have to be
seen in the light of the Judicial Service Rules. The Judicial
Service Rules carve out the complete procedure and up to Rule 10
for appointment. Once recruitment and appointment are the
terms and expressions to be construed broadly in the backdrop of
Article 233 to 235, then, in matters which are covered by these
Articles and the Rules, namely, Judicial Service Rules, the Rules
of Procedure, framed by the MPSC, cannot be given an overriding
effect. Article 234 uses the words “appointment of persons other
than district judges to the judicial service”. Once Bal Mukund
Sah (supra) clarifies the constitutional status of the judiciary, the
role of the Governor and the limited assistance to be obtained
from the MPSC, then, we cannot agree with the argument and
which has been canvased with great vehemence that there is
silence in the Judicial Service Rules and that gap can be filled in
with the assistance of Rule 20 of the Judicial Services Rules and
the MPSC Procedural Rules. The argument of the respondents
and of the above nature overlooks Rule 6(3)(a)(b) and Rule 6(7)
of the Judicial Service Rules. True it is that on the basis of
cumulative marks secured by the candidates, the recruiting
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authority shall prepare a list of candidates eligible for
appointment in the order of merit, but at the same time, clause
(b) of Rule 6(3) cannot be ignored. That says that besides the
above list, the recruiting authority shall prepare wait-list equal to
10 percent of the number of vacancies notified for recruitment or
one whichever is higher. The recruitment authority shall
recommend names of selected candidates by completing the
selection process and thereafter what we have is the role of the
Government and that of the High Court. At the same time, it has
been clarified that such candidates, whose names are included in
the list prepared under clause (a) [wrongly printed as sub-rule
(6)] of sub-rule (3) of rule 6 shall be considered for appointment
in the order in which the names appear in the list and subject to
Rule 8, they may be appointed by the “appointing authority”,
which expression and term are those referred in Rule 4 of
Chapter III of the Judicial Service Rules. However, sub-rule (7)
does not stop here or rather does not end. It also refers to
candidates, whose names are included in the wait-list shall be
considered for appointment after the candidates, whose names
are included in the list published under clause (a) of sub-rule (3),
have been appointed and have not joined or have not been
appointed for any reason. This must be read with the period that
has been set out in Rule 6(4)(c). We have to resolve the issue in
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this case by referring to this clause (c) as well. Therefore,
nothing in the Judicial Service Rules can be read in isolation,
much less ignored or brushed aside. If these rules are read
together and harmoniously, then, it is clear that they specify all
the matters of recruitment. They also provide for preparation of
the list styled as merit-list and which can also include names over
and above the notified vacancies. Therefore, that is termed as a
wait-list. If that is how the Judicial Service Rules prescribe and
read, then, we cannot allow the MPSC to rely on its Procedural
Rules and the residuary provision, namely Rule 20 of the Judicial
Service Rules. The Judicial Service Rules hold their field and in
terms of the constitutional status of the judiciary. The judiciary
has been vested with a special duty and to render justice fairly,
impartially and independently. Its independence must be
preserved at all costs and can never be compromised. One can
not tinker with the working of the judiciary and interfere with its
functioning so as to defeat the mandate of Articles 233 to 235 of
the Constitution of India. The judicial service, as Bal Mukund Sah
(supra) states, has a distinct place in the scheme of constitution.
Its functioning and working should be independent and other
organs of the State cannot dictate to it anything regarding the
above functions, much less interfere therewith. Therefore, we do
not think that the Procedural Rules of the MPSC can be relied
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upon to take care of such a situation. If the Judicial Service Rules
says that the wait-list or the list, which is composite in this case
shall remain operative for a period of one year from the date of
publication, then, in the facts and circumstances of this case and
wherever a composite list is prepared, that must remain
operative in terms of Rule 6(4)(c). To that extent, the Procedural
Rules of the MPSC arenot consistent with the constitutional
scheme and the role of judiciary as enshrined therein. We need
not, therefore, say anything further.
39. However, insofar as the question of relief to be granted to
the present petitioners is concerned, we are of the opinion that in
the present case, a list has already been published. True it is that
it was not allowed to operate for a period of one year. True it is
that this period of one year was interjected by insertion of a fresh
rd
advertisement dated 23 March, 2016. Now that the said
advertisement is inserted and the process in furtherance thereof
has commenced, we do not think that any relief can be granted to
the petitioners. More so, considering their ranking and position
in merit list. They are not, in the order of merit, higher than
those who have not joined the judicial service. It is only when
they come to know that one of the candidate has not joined that
they thought of making a representation. It is only when these
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representations and successive did not meet any favourable
response that they deem it fit to approach this court. A lot of time
has been spent and after the issuance of fresh advertisement.
Now, steps may have also been taken in pursuance thereof. If we
interfere at this stage, it would completely disturb the process.
When none have acted malafide, but proceeded on a legal position
which is now found to be incorrect, we would not be justified in
interfering in our writ jurisdiction, that is extraordinary,
equitable and discretionary. It is on the understanding of both,
the High Court and the MPSC and in terms of the law laid down in
the case of Malik Mazhar Sultan (supra) that the process has
been commenced. That is to follow the entire schedule notified
and directed in terms of this judgment. Therefore, when the
appointment to the post of CJJD and JMFC by direct recruitment
has to be done going by the number of vacancies to be notified by
th
the High Court by 15 January every year and such vacancies to
be calculated including the existing vacancies and future as well
st
so also the advertisement must be issued by 1 February every
year, the further time frame also set out up to the date of
appointment, we would be acting in contravention of these
binding guidelines if we interfere with the advertisement dated
rd
23 March, 2016. We, therefore, do not interfere with it and at
the instance of the present petitioners, one of whom is much
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below in the order of merit. Therefore, we make the Rule partially
absolute.
40. Reliance on Rule 20 of the Judicial Service Rules, which
appears in Chapter V is entirely misplaced. Rule17 falling therein
speaks of age of superannuation. Rule 18 provides for addition of
certain service for purpose of pension. Rule 19 deals with
retirement in public interest and then appears Rule 20. Thereby,
the conditions of service of the members for which no express
provision is made in these Rules shall be determined by the Rules
and Orders for the time being applicable to officers of Indian
Administrative Service in the State and if those Rules are silent,
then, by the provisions of the Maharashtra Civil Services Rules
shall apply mutatis mutandis. The word member means a
member of the judicial service of the State. Post appointment and
when matters are not covered by other rules such as Rule 17 to
19, then, the Judicial Service Rules permit following and relying
on the conditions of service applicable to members of the above
services. These conditions and as indicated in the other rules
would apply. In the instant case, this rule could not have been
relied upon. The reliance placed thereon is therefore misplaced.
41. We also take note of the decisions, which have been cited
before us by the respective counsel appearing for the petitioners.
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42. Mr. Avhad has relied upon an order passed by a Division
Bench of this court in Writ Petition No. 4257 of 2013 decided on
nd
22 January, 2014 (Mr. Udaysing Jalamsing Valvi vs. The
Secretary, District Selection Committee and Anr.). There, the
petitioner sought appointment to the post of Senior Assistant
(Accounts) under Scheduled Tribe reserved category. His
nd
representation dated 2 November, 2012 was rejected. True it is
that this candidate was wait listed at serial no. 1 and the post was
vacant. The appointed candidate was unable to join the post, as
he did not furnish the caste certificate. The caste certificate, in
any event, of that candidate was invalidated. The order of
th
invalidation came on 8 August, 2012. That is how the petitioner
before this court made representation and demanded the
appointment. In November, 2012, the order was passed
communicating that the list styled as wait-list has exhausted
itself and therefore, the petitioner cannot be appointed. The
petitioner made subsequent representation, but without noticing
th
that, a fresh advertisement was issued on 11 April, 2013 for
filling up the post in question, a writ petition was filed in this
th
court on 29 April, 2013. On that date, the post was still vacant
rd
and an ad-interim order was passed on 3 September, 2013 by
this court directing that the appointment made, if any would be
subject to further orders which may be passed in the petition.
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This court, therefore, was not required to consider the issue and
of legality and validity of any rule much less concerning any wait-
list or reserve list. Secondly, the vacancy could not be filled in.
Given this peculiar fact situation that the court allowed the
petition and granted appointment to the petitioner. This order
cannot be seen as laying down any law. It must be, therefore,
considered in the facts and circumstances peculiar to that case.
No general principle of law and which would govern the subject
rules and issue before us, therefore, can be read into this order.
43. As far as Mr. Mankapure is concerned, he has essentially
relied upon the judgments of the Hon'ble Supreme Court of India,
which emphasise the role of the judiciary under the Constitution
of India. The position and status that it enjoys while making
recruitment to the post of District Judge and to the posts other
than the District Judge in the judicial service of a State. We have
no quarrel with that, inasmuch as we have followed that very
dictum. However, when Bal Mukund Sah (supra) has been
followed even in the case of Sanjay Singh and Anr. vs. U. P. Public
4
Service Commission, Allahabad and Anr. , then, we do not think
that the issue which we have considered fell for determination, in
any of these cases. Sanjay Singh case (supra) was dealing with a
4 AIR 2007 SC 950
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scaling down. The marks that were assigned and the entire
schedule and pattern suffered from the illegalities and
irregularities pointed out. In this context and backdrop the
Hon'ble Supreme Court of India decided the issue. We have also
seen the judgment of the Hon'ble Supreme Court of India in the
5
case of Neelima Shangla vs. State of Haryana and Ors. . There
also a relief was denied to the petitioner. The only relief insofar
as the petitioner was concerned was granted in terms of the
penultimate para. The court directed to include the name of the
petitioner in the list of candidates selected for appointment as
subordinate judges in the Haryana Civil Service (Judicial Branch)
and forward the same to the High Court of Punjab and Haryana.
That was because the net result was that the qualified candidates,
though available, were not selected and were not appointed.
Petitioner Neelima in that case was one of them. The present
petitioners' case cannot be equated with that of Neelima. We do
not think, therefore, that this judgment is of any assistance to the
present petitioners. Finally, Mr. Mankapure relies upon the
6
judgment in the case of Manoj Manu and Anr. vs. Union of India .
The facts in that case were never in dispute. The appellant Manoj
Manu and other were working as Assistants in the Central
Secretariat Service and appeared in limited departmental
5 AIR 1987 SC 169
6 (2013) 12 SCC 171
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competitive examination for the next promotion to the post of
Section Officer's grade in that service. The two channels of
promotion are set out in para 2 of this judgment and the Union
Public Service Commission recommended 184 candidates in two
lots. In the first lot 141 candidates were found suitable
candidates for the said post, whereas in the second lot 43
successful candidates were recommended for appointment. Out
of them, 6 candidates did not join. Importantly and crucially, the
th
Department of Personnel and Training, by its letter dated 20
November, 2009 requisitioned 6 general category candidates.
However, the UPSC recommended names of three candidates out
of the reserve list maintained by it. These two appellants, who
were next in the merit list had secured 305 marks, same as
secured by one Rajesh Kumar Yadav, who was recommended by
UPSC in the supplementary list candidates. They felt aggrieved by
their non-recommendation, thereby denying them the
appointment to the post of Section Officer's grade. It was their
case before the tribunal that the UPSC acted in an arbitrary and
discriminatory manner in contravention of Articles 14 and 16 of
the Constitution of India. Their right to get the appointment has
been arbitrarily denied. They are equally placed. In such
peculiar circumstances, the Hon'ble Supreme Court considered
the issues and which would be categoriesed in categories 'A' and
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'B'. It followed Neelima Shangla's case (supra). It held that any
person whose name is included in the select list, does not acquire
any right to be appointed. The Government may decide not to fill
up all the vacancies for valid reasons. Such a decision on the part
of the Government not to fill up the required/advertised
vacancies should not be arbitrary or unreasonable, but must be
based on sound, rational and conscious application of mind. The
UPSC sent, in that case 184 persons by recommending their
names for appointment. Six out of them did not join. This is not a
case where the Government decided not to fill up further
vacancies. On the contrary, it acted upon the requisition from the
Department and it desired to fill up all the notified vacancies.
When there were six persons who did not join, still the UPSC
chose to forward names of only three eligible candidates.
Therefore, the Hon'ble Supreme Court found that there were
vacancies still to be filled in, the Government wants them to be
filled in and the UPSC has not acted in terms of the said
requisition. The UPSC should have sent names of six candidates
instead of three. This is also a decision on facts.
44. We must also clarify that Manoj Manu (supra) was
considered in the case of Kulwinder Pal Singh (supra). After
referring to that and other decisions, the Hon'ble Supreme Court
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in Kulwinder Pal Singh's case (supra) found that there were
names up to certain serial number in the wait-list. They were
offered appointment, however, three candidates belonging to
general category placed at serial number 1, 5 and 32 did not join
service. Resultantly, 31 general category candidates accepted
the appointment and joined service. The appellants, including
Kulwinder Pal Singh belonged to general category. They
submitted a representation for appointment orders. Their names
were favourably considered and the Registry of the High Court,
because it concerned the Punjab Judicial Service, placed the
matter before Administrative Committee. The committee, in its
meeting resolved to recommend the names of the appellants
subject to approval of the Full Court. It is in a fresh consideration
by the Administrative Committee that the request of the
appellants before the Hon'ble Supreme Court was denied. That is
how they approached the High Court. The High Court rejected
their petition. They appealed to the Hon'ble Supreme Court of
India, but their appeal was also dismissed. After referring to all
the judgments in the field, the Hon'ble Supreme Court concluded
that vacancies cannot be filled in over and above the vacancies
advertised. Once the vacancies notified have been filled up, the
process of selection comes to an end. A wait-list cannot be used as
a reservoir to fill up the vacancy which comes into existence after
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the issuance of notification/advertisement. The unexhausted
select list/waiting list becomes meaningless and cannot be
pressed in service any more.
45. Here, we have found and categorically that 227 vacancies
were notified. 227 candidates were recommended. In addition to
them, some like the petitioners were also listed in their order of
merit. The process concluded by the declaration of result and the
scrutiny in terms of the Judicial Service Rules referred in detail
above. The petitioners desire continuance of the list even after
these events. That is how we would prefer to go by Kulwinder Pal
Singh's case (supra). We hold and in the facts and circumstances
of this case, that now that a fresh advertisement is issued and the
earlier list having been exhausted itself in the manner held by us
above, the relief to the petitioners' cannot be granted.
46. In the view that we have taken, we need not refer to the
judgment relied upon by Mr. Avhad rendered in the case of
7
Sasidhar Reddy Sura vs. State of Andhra Pradesh and Ors. .
Rather we have gone by the observations and what is held in para
19 of this judgment. These observations are heavily relied upon
before us by Mr. Avhad to hold that the MPSC does not play a
prominent role. We have followed this very dictum and not
deviated from it.
7 AIR 2014 SC 444
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47. As a result, in all the petitions, Rule is made partly absolute.
It is made absolute to the extent it is declared that the Rules of
Procedure framed by the MPSC would not override the
Maharashtra Judicial Service Rules, 2008, insofar as the matters
discussed and covered in the foregoing paragraphs of this
judgment. It shall be in terms of the principles of law enumerated
above. However, relief to the petitioners as prayed in the
petitions is denied. In the facts and circumstances, there would
be no order as to costs.
48. Before parting, we would highly appreciate that to avoid
present situations, which are avoidable, the MPSC and the
Department of Law and Judiciary of the Government of
Maharashtra should not take any unilateral decision. There is
some substance in the complaint that the petitioners and others
make and that is that these authorities have not understood till
date that they are bound by the views of the High Court in respect
of recruitments and appointments in district judiciary. The State
and the MPSC are dealing with peripheral and incidental issues.
Moreover, the vacancies are notified and in terms of Malik
Mazhar Sultan and Anr. (supra), the process commences ending
with selection and appointment after the recommendations reach
the Government. The least that is expected from the Department
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of Law and Judiciary is that it must direct the MPSC to issue
fresh advertisement only after seeking the views and opinions of
the High Court. In the event the High Court desires a fresh
advertisement to be issued including therein all unfilled
vacancies or such vacant posts which do not get filled in because
some candidates in the earlier process did not join or were found
ineligible, then, before the fresh advertisement is issued, such
views of the High Court should be obtained. Any deviation from
the same would be contrary to the constitutional mandate.
Therefore, we feel that hereinafter, before any steps are taken,
the MPSC should move the Government and the Government,
through its competent ministry, namely the Law and Judiciary,
should seek the views and opinion of the High Court before
allowing the MPSC to issue and insert a fresh advertisement.
That would obviate all the difficulties which eventually the High
Court faces including the challenges raised in litigation.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
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