Maharashtra Public Service Commission v. Amol Parshuram Patil & Ors.

1. Rule. Rule made returnable forthwith and heard learned counsel for the parties.

2. The question that arises for consideration in this writ petition is the weightage to be given to the steps taken by the Appointing Authority to fill in vacancies by operating the wait-list prior to the expiry of its life vis-a-vis the actual requisition being made by the Appointing Authority to the Recruiting Agency shortly thereafter.

3. The facts lie in a narrow compass: With a view to fill in about 450 posts of “Tax Assistant” with the Sales Tax Department of the State of Maharashtra – respondent no.10, Advertisement No.36 of 2016 was published on 5th July 2016. The examination in that regard was conducted by the petitioner – Maharashtra Public Service Commission (MPSC) as the Recruiting Agency. The results of the said examination were declared on 17th February 2017 and the final list of eligible candidates whose names were to be recommended to the Appointing Authority was published on 8th March 2017. Between 22nd March 2017 to 24th May 2017, the Sales Tax Department undertook the exercise of verification of documents of the eligible candidates. Since about 56 candidates remained absent, the Sales Tax Department issued reminders to them on 26th May 2017. 12 candidates got their documents verified. Yet another reminder was issued on 27th October 2017 in which 2 candidates were present. A final reminder was issued on 14th November 2017 in which no candidate was present. As a result, there remained 42 candidates from the list of eligible candidates who did not turn up for verification of their documents. This resulted in there being 42 vacancies on the said posts. On 14th December 2017, the Commissioner, Sales Tax Department issued a communication to the respondent no.9 – Additional Chief Secretary, Finance Department of the State Government stating therein that in the recruitment process conducted for filling in the aforesaid 450 vacancies, 41 candidates remained absent during the stage of verification of documents while 1 candidate was found to be ineligible. As a result there were 42 vacancies and hence a request was made to demand equivalent number of candidates from the wait-list from the MPSC. Ultimately on 17th March 2018, the Finance Department made a request to the MPSC to make available names of 42 candidates from the waiting list to enable it to complete the recruitment process. On 3rd April 2018, the MPSC responded to the aforesaid communication by submitting that the results of the written examination were declared on 8th March 2017 and the demand of the names of candidates from the waiting list was made by the Finance Department on 17th March 2018. Since this demand was made beyond the period of one year, the wait list had lapsed. It therefore declined to intimate the names of 42 candidates from the wait list.

4. Being aggrieved by the aforesaid communication dated 3rd April 2018, the respondent nos.[1] to 8 – wait listed candidates approached the Maharashtra Administrative Tribunal by filing Original Application No.792 of 2018. The Tribunal by its judgment dated 11th December 2019 held that since the requisition for names of candidates from the wait list had been made and the Finance Department found it necessary to fill in the vacancies on account of implementation of the Goods and Service Tax regime, delay of nine days in addressing the communication dated 17th March 2018 was not very material. After noting that there were still 8 vacancies that had not been filled in besides the 42 candidates whose names were called from the waiting list, the MPSC was directed to act on the requisition dated 17th March 2018 and send the list of recommended candidates from the Wait list. The Maharashtra Administrative Tribunal however observed that its decision should not be treated as a precedent. Being aggrieved by the direction to send the names from the Wait list, the MPSC has challenged the same in the present writ petition.

5. Mr. Ashutosh Kulkarni, learned counsel for the MPSC referred to the Maharashtra Public Service Commission Rules of Procedure, 2014 (Rules of Procedure) and especially Rule 10(8)(b) thereof to submit that the reserve list that was required to be maintained while undertaking direct recruitment would lapse on the expiry of one year from the date of declaration of results or on the publication of a subsequent advertisement for recruitment to the concerned post, whichever was earlier. In view of this position it was submitted that the Tribunal had no jurisdiction whatsoever to direct the MPSC to supply the names of candidates from the reserve list after a lapse of one year from the date of declaration of results. Once the period of one year had expired, the life of the reserve list came to an end. Placing reliance on the judgment of the Division Bench in Maharashtra Public Service Commission Vs. Pankajkumar C. Dabhire and Ors. (Writ Petition No.5621 of 2015 with Writ Petition No.4555 of 2016) decided on 3rd July 2018, it was submitted that by issuing such direction the Tribunal had extended the period of validity of the reserve list beyond its permissible life which it was not entitled to do. It was therefore submitted that the direction issued by the Tribunal was beyond its jurisdiction and this Court ought to interfere in exercise of writ jurisdiction.

6. Per contra Mr. Sandeep Dere, learned counsel appearing for the wait listed candidates submitted that after declaration of the results on 8th March 2017, the Sales Tax Department undertook the exercise of verification of documents. At the end of this exercise, it was found that 42 candidates had not turned up for document verification despite their names being present in the final select list. According to him, the Sales Tax Department on 14th December 2017 itself having made a requisition for names of 42 candidates from the Wait list, the mere fact that the Finance Department took some time to make the actual requisition on 17th March 2018 could not be held against the wait listed candidates. Noticing these facts, the Tribunal rightly issued the impugned direction. It was further submitted that the Sales Tax Department was the Appointing Authority and it had not raised any grievance in this regard since it was a need of Tax Assistants for filling in the said posts. Once the vacancies had arisen prior to the expiry of the period of one year from the date of declaration of results, rights accrued in favour of the wait listed candidates. To substantiate his contention, the learned counsel referred to the judgment of the Supreme Court in State of Jammu and Kashmir and Ors. Vs. Sat Pal, (2013) 11 SCC 737. He also relied upon the judgment of the Division Bench in Vijay Chhagan Gadave Vs. Collector, District Thane and Anr. (Writ Petition No.9439 of 2019), decided on 3rd October 2019, as well as the judgment of the Gujarat High Court in Patel Rakeshkumar Dharamdas Vs. State of Gujarat and Ors. (Special Civil Application No.1282 of 2011) decided on 6th May 2011. He thus submitted that as the Tribunal did not commit any error, its order did not deserve to be interfered with.

7. We have heard the learned counsel for the parties at length and we have also perused the material placed on record. Having given due consideration to the rival submissions, we do not find that this is a fit case warranting interference under Article 226 of the Constitution of India. Under the advertisement published by the MPSC on 5th July 2016, 450 posts of “Tax Assistant” with the Sales Tax Department were sought to be filled in. After the final list of eligible candidates was published on 8th March 2017, 42 candidates failed to satisfy their eligibility for being recruited on the said posts. After noting this fact, steps were taken by the Sales Tax Department on 14th December 2017, which was prior to the expiry of one year from the date of declaration of results, to make a requisition for sending the names of 42 candidates from the Wait list. When the matter was being considered by the Finance Department of the State Government, the period of one year came to an end. Shortly thereafter, a request was made to the MPSC on 17th March 2018 to make available names of 42 candidates from the Wait list.

8. The aforesaid facts indicate that since the Goods and Service Tax regime had set in, the Sales Tax Department which was the Appointing Authority intended to fill in the 42 vacancies that form part of the 450 vacancies that had been advertised. The Appointing Authority by sending a requisition to the MPSC on 14th December 2017 has made its intention clear of wanting to fill in the vacant posts. In our view, it is the primary concern of the Appointing Authority to take a call as to whether it intends to fill in the vacant posts by operating the Wait list. Once this intention is made clear that for justifiable reasons the Appointing Authority has taken a call to fill in the vacant posts, the role of the MPSC as the Recommendatory Authority would be secondary in nature. When it has been demonstrated that the Appointing Authority initiated the process of filling in the vacancies much prior to expiry of the life of the waiting list, said aspect ought to be given due importance. Merely because a short period beyond the life of the Wait list had passed due to exchange of departmental communications, the Recommendatory Authority would not be justified in declining the request for supplying the names of wait list candidates. As held in Sat Pal (supra), what is of relevance is the decision of the Appointing Authority to fill in the vacancy which in the present case is much prior to the life of the Wait list.

9. It is material to note that in the present case there is no grievance raised by any candidate who had participated in the recruitment process that the Wait list was being unjustly operated. Similarly, the Appointing Authority has expressed the need for filling in the vacancies for reasons indicated in its communication much prior to expiry of the life of the Wait list. It is only in view of Rule 10(8)(b)of the Rules of Procedure that the Recommendatory Authority has sought to object to the supply of names of wait listed candidates. In our view, the Tribunal after noting all these relevant aspects was justified in directing the MPSC to supply the names of the wait list candidates. In these facts, the ratio of the decision relied upon by the learned counsel for the MPSC cannot apply to the case in hand.

10. Another relevant aspect that is required to be noted is that upholding the stand of the MPSC of declining to send the names of the wait listed candidates in the present facts would only result in a fresh process of recruitment being required to be undertaken; thus resulting in expenditure of public funds. This would against larger public interest. The Appointing Authority being the principal authority to consider whether vacancies are required to be filled in or not and it having decided so by taking a conscious decision prior to expiry of the Wait list, we do not find in expedient to interfere in exercise of writ jurisdiction especially in the absence of any grievance being raised either by the Appointing Authority or by any candidate claiming to be deprived of any opportunity whatsoever. As held in Ramniklal N. Bhutta and Anr. Vs. State of Maharashtra and Ors. (1997) 1 SCC 134, discretionary power under Article 226 has to be exercised only in furtherance of interests of justice and not merely on the making out of a legal point.

11. For aforesaid reasons, we are not inclined to exercise discretion under Article 226 of the Constitution of India and interfere with the impugned judgment of the Maharashtra Administrative Tribunal. The writ petition is therefore dismissed. Rule stands discharged with no order as to costs. [ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]