Dattatray Maruti Bansude & Ors. v. State of Maharashtra & Ors.

2016 examination, as to whether the age relaxation issued by Government Resolution dated 25th April 2016 is applicable to the advertisement dated 27th June 2016 to fill up 828 posts of PSI. This Court in Writ Petition No.6631 of 2017 in the case of Sushant Salvi vs. State of Maharashtra pronounced an order on 28th September 2017 by holding that the Government Resolution dated 25th April 2016 relaxing age criteria is applicable only for direct recruitment at the initial fresh entry in the Government Service and not applicable to selection of “in-service” candidates by way of promotion and since LDCE 2016 recruitment was selection by promotion, the age relaxation would not be applicable.

(vi) In view of what was observed by this Court in the case of Sushant

Salvi, Respondent No.6-MPSC revised list of candidates selected who appeared for LDCE – 2016 by excluding those candidates who were overaged. Thereafter, 642 candidates from open category and 186 from reserved category were sent for training to Nasik.

(vii) On 5th March 2018, Respondent No.1-State sent additional 154

34 of 65 candidates for training in addition to 828 (642+186) candidates which were already sent for training resulting into an aggregate of 982 (642+186+154) candidates. The Respondent No.1-State realised that sending original 186 candidates from reserved category for training was contrary to the dictum of Vijay Ghogre’s decision. However out of original 186 candidates from Reserved Category, 32 qualified on merit so as to be treated under open category and therefore the State was left with 154 reserved candidates. To offset these 154 reserved category candidates, additional 154 candidates were sent from the merit list. However, the Respondent No.1-State did not call back the 154 reserved category candidates but they were absorbed. This resulted into 2 groups of 154 candidates, namely first group of 154 reserved candidates who were originally sent and second group of additional 154 open category candidates who were sent subsequently. An undertaking was taken from candidates of both these groups that their appointment was subject to the decision of the Supreme Court in the case of Vijay Ghogre. This resulted into 982 (828+154) candidates being selected for training under LDCE – 2016 against 828 post being advertised. These additional candidates were sent consequent to the decision of this Court in the case of Vijay Ghogre (supra). 35 of 65 (viii)Being aggrieved by the aforesaid decision of the State to send additional 154 candidates for training, Miscellaneous Application No.472 of 2018 in Original Application No.394 of 2018 was filed before the Tribunal at Mumbai by one Mr. Santosh Bapurao Rathod & Others. The Tribunal on 4th October 2018 passed an ex-parte adinterim order with notice to the Respondents therein to show-cause as to why the order should not be made absolute in following terms:- (a) 32 reserved category candidates out of 186 in open merit competition (out of 186 candidates), stand protected. (b) All such candidates who have been sent for training for Police Sub Inspector's post i.e. 154 (out of 186) in number who are amongst added respondents, who are chosen for promotion for filling in vacancies by promotion of candidates belonging to category for whom reservation is provided, shall not be given any benefits of training which they have undergone.

(c) Government shall be free to restore 154 candidates to the posts from which they were sent for training or at any posts, or keep them waiting at the choice of State and candidates however State shall not do anything, which shall amount to recurrent violation of the order of Hon'ble High Court Writ Petition No.2797/2015 shall be done.

(ix) On 6th November 2018, Original Application No.394 of 2018 alongwith Miscellaneous Application Nos.472 of 2018 and 586 of 2018 were disposed of. The Tribunal held that the judgment of the Bombay High Court in Writ Petition No.2729 of 2015 (Vijay Ghogre) stands completely overruled post the judgment in the case of Jarnail Singh. The Tribunal further held that post Jarnail Singh’s 36 of 65 judgment dated 26th September 2018, there is no ambiguity and, therefore, the fate of 154 candidates is no more hazy or in suspended animation. Further the Respondent No.1-State was directed to abide by the judgment of the Supreme Court in the case of Jarnail Singh. The Tribunal took the view that test of quantifiable data for reservation laid down by Vijay Ghogre’s decision is no more good law post para 21 of the decision in the case of Jarnail Singh which reads thus: “21. Thus, we conclude that the judgment in Nagaraj (supra) does not need to be referred to a seven-Judge Bench. However, the conclusion in Nagaraj (supra) that the State has to collect quantifiable data showing backwardness of the Schedule Castes and the Schedule Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) supra is held to be invalid to this extent.” However, the Tribunal observed that the Applicants were free to make a suitable representation to the Government if they were so advised and if such a representation was made, the Government was to consider it in due course and on its own merits.

(x) On 22nd April 2019, the Respondent No.1-State issued a

Government Resolution to send 636 additional candidates for training. Consequently, the total candidates sent for training pursuant to LDCE – 2016 advertisement increased to 1618 (642 Original Open Category + 186 Reserved Category = 828 + 154 (Vijay Ghogre) + 636 G.R. dated 22nd April 2019 = 1618). The 37 of 65 said Government Resolution came to be challenged before the Tribunal, Aurangabad Bench in O.A. No.722 of 2019. The stay of the said G. R. granted was vacated on 30th November 2019 and the candidate affected by the said order challenged the same before the High Court at Aurangabad in Writ Petition No.15045 of 2019 in the case of Gajanann Bapulal Bansode & Ors. Vs. State of Maharashtra.[2]

(xi) On 6th March 2020, the aforesaid Writ Petition No.15045 of 2019 was disposed of. The order reads thus:- ORDER [I] The respondents may send these 636 persons for training of nine (09) months. [II] We request the tribunal to decide the Original Application No. 722 of 2019, preferably within a period of nine (9) months so that before the posting/ appointment orders are issued the original application would be decided and all the issues would be finally adjudicated in the original application. [III] The parties shall co-operate in expeditious disposal of the proceedings. [IV] The applicants in the intervention application filed in the present writ petition shall be arrayed as party respondents by the petitioners. [V] The parties shall appear before the tribunal on 12.03.2020. [VI] As the date has been given, it is not necessary to issue separate notice to these intervenors who are added as parties.

(xii) The aforesaid order passed in Writ Petition No.15045 of 2019 was challenged before the Supreme Court and the Supreme Court on 5th February 2021 in Civil Appeal No.104 of 2021 (Gajanan Babulal Bansode & Ors. Vs. State of Maharashtra & Ors.) held that the Authority cannot fill up more than the notified number of vacancies advertised. The recruitment of candidates in excess of notified vacancies would be violative of Articles 14 and 16(1) of the Constitution of India. The Supreme Court allowed the Civil Appeal and set aside the order of the Tribunal dated 30th November 2019 and the order passed by this Court in Writ Petition No.15045 of 2019 dated 6th March 2020. It also stayed the Government April 2019 till the pendency of the proceedings before the Tribunal. The Supreme Court further directed the Aurangabad Bench of the Tribunal to decide the O.A. within a period of six months with a direction that 636 candidates be heard in the adjudication proceedings. Relevant paragraphs of the said order of the Supreme Court reads thus:- “14. Rule 5 of the Police Sub-Inspector (Recruitment) Rules, 1995 provides that notwithstanding anything contained in these rules, if in the opinion of the government, the exigencies of service require, the ratio prescribed for appointment by promotion, on the basis of Limited Departmental Examination or nomination, may be relaxed with the prior consultant of the Commission. The Government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power under Rule 5, which may be resorted to 39 of 65 only in rare and exceptional circumstances.

15. The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

6. Pursuant to above, the Aurangabad Bench of the Tribunal on 4th March 2022 passed a detailed order and quashed Government April 2019 by which 636 candidates were sought to be absorbed and consequently allowed the O.A. No.722 of 2019. This order of the Aurangabad Bench of the Tribunal was followed by the Mumbai Bench in O.A. No.733 of 2019 and allowed reliefs (a), (b) and

(c) which read as under:- “(a) to quash and set aside the G.R. dated 22.04.2019. (b) hold and declare that the action of Respondent filling the posts under GR dated 22/04/2019 is ultra vires of the Constitution and the prevalent legal position.

(c) Recall all the acts done by the Police department in furtherance of the implementation of the G.R dated 22.04.2019.”

7. It is on this backdrop that the Petitioners being aggrieved by the quashing of the Government Resolution dated 22nd April 2019 by which 636 candidates were sought to be absorbed by sending them for training are before us challenging the orders passed by the Aurangabad Bench of the Tribunal in O.A. No.722 of 2019 dated 4th March 2022 and Mumbai Bench of the Tribunal in O.A. No.733 of 2019 dated 25th March

2022. 40 of 65 Submissions of the Petitioners: -

8. The Petitioners submit that their rights under Articles 14 and 16 of the Constitution of India have been violated and the Respondent No.1-State has created class within class as per their own policy decision but the present Petitioners have been left out of consideration and therefore, they have challenged the said action in the present petition. The Petitioners further submit that the Respondent No.1-State has been taking contradictory stand with respect to 154 candidates who were sent for training by stating on oath that the LDCE selection is a direct recruitment and in the same breath stating that the selection by direct recruitment is not applicable to in-service candidates. The Petitioners submitted that the State cannot approbate and reprobate at the same time. The Petitioners relied upon various affidavits filed before the Tribunal by the Respondent No.1-State, advertisement for recruitment, Government communications and G.R. to contend that LDCE – 2016 is a selection by promotion of in-service candidates and not direct recruitment as now sought to be contended by the State. The Petitioners further submitted that the selection of original 154 candidates from reserved category was contrary to the decision of this Court in Vijay Ghogre’s case (supra) and therefore these 154 reserved candidates cannot be recruited. The Petitioners further submitted that to counter-balance the same, the Respondent No.1-State sent second 41 of 65 batch of 154 candidates and both these groups of 154 candidates each were subjected to an undertaking that their recruitment is dependent upon the outcome of the decision in the case of Vijay Ghogre’s. The Petitioners, therefore, submitted that it cannot be said that 154 candidates are selected from the merit list. The Petitioners submitted that the impugned Government Resolution dated 22nd April 2019 was adopted by the State as a corrective measure to select all the candidates who scored 230 or more than 230 marks to protect the rights of these candidates under Articles 14 and 16 of the Constitution of India. The Petitioners further submitted that concept of “transitional arrangement” by subjecting the two groups of 154 candidates to an undertaking is unknown to service jurisprudence. They further submitted that reservation in promotion is upheld by the Supreme Court in M. Nagaraj’s case.

9. The Petitioners also contended that 154 candidates selected on merits have been confirmed on 6th October 2018 and other 154 reserved candidates are confirmed on 20th November 2018 on the basis that it was not a promotional examination. The Petitioners have relied upon their written submissions and prayed that the writ petition be allowed by setting aside the impugned Tribunal orders. 42 of 65 Submissions of the Contesting Respondent No.1: -

10. The Respondent No.1 State raised a preliminary objection with respect to the maintainability of the writ petition on the ground that since these Petitioners are the candidates in excess of posts advertised, they cannot file the present petition because they cannot be considered at all. The Respondent No.1 -State further submitted that it is not open to the Petitioners to assert the rights on the basis of the Government Resolution dated 22nd April 2019 and at the same time to call in question the action of the Government. The Respondent No.1- State further submitted that de hors the Government Resolution dated 22nd April 2019, the Petitioners have no right whatsoever to promotion. The Respondent No.1-State has categorically stated that the Government has not challenged the order dated 4th March 2022 in Original Application No. 722 of 2019 by which the Government April 2019 has been set aside. The Respondent No.1-State, therefore, prayed for dismissal of the Writ Petition. Analysis and Conclusions: -

11. We have heard the learned counsel for the Petitioners, learned Advocate General for the Respondent No.1-State and learned counsel for the other Respondents. With their assistance we have perused the documents annexed to the petition, submissions filed and 43 of 65 compilation of documents and judgments tendered in the course of hearing.

12. The Petitioners before us are seeking revival of Government April 2019 by which they were sought to be recruited as Police Sub-Inspector. These Petitioners were the Respondents before the Tribunal. The Tribunal has quashed the Government Resolution of 22nd April 2019 and therefore, the Petitioners are aggrieved by the Tribunal’s order. Further, the Supreme Court in Gajanan Bansode’s case directed the Tribunal to ensure that notice is given to these 636 candidates so that they participate in the proceedings. Therefore, in our view, it can be said that the Petitioners have locus standi to file the present petition since they are beneficiaries of the Government Resolution which is under challenge. Therefore, we reject the contention of the Respondent No.1-State on this count.

13. The next issue which arises is whether LDCE-2016 is a promotion of in-service candidates or a direct recruitment. The advertisement dated 27th June 2016 issued was on the basis that it is a promotional position since the said advertisement provided for reservation at 33%. If the advertisement was for direct recruitment then higher reservation of 50% would have been provided and since only 33% was provided, LDCE-2016 is a selection by promotion of in-service 44 of 65 candidates and not the case of direct recruitment. The reserved category candidates did not object to the same at any stage of the proceedings and therefore, today in the present petition cannot contend that it is the case of the direct recruitment. Furthermore, the reserved category candidates also did not raise this issue before the Tribunal but on the contrary, they proceeded before the Tribunal on the correct premise that it is the case of the promotion by placing reliance on the decision in case of Vijay Ghogre (supra). Therefore, the conduct of the reserved category candidates clearly demonstrates and rightly so that LDCE-2016 is a selection by promotion of in-service candidates and not a direct recruitment. Reliance placed by the learned Advocate Dr. Mane on the decision of the Supreme Court in case of Pavnesh Kumar Vs. Union of India[3] supports the case of the respondent-State that LDCE-2016 is a mode of accelerated promotion though not normal mode of promotion. The Supreme Court in case of Akhilesh Prasad Vs. Jharkhand Public has also held that LDCE is a promotional exercise which gives an opportunity of accelerated promotion and it is not the case of a direct recruitment. This Court in the case of Sushant Salvi (supra) has also held that LDCE-2016 is selection by promotion of inservice persons. The Government Resolution of 27th June 2016 also states so. The requisition dated 2nd June 2016 by Respondent No.1-

45 of 65 State to Respondent No.6-MPSC and opinion of Law & Judiciary Department also reiterates that it is selection by promotion of in-service candidates. In our view, LDCE-2016 cannot be said to be process of direct recruitment but it is selection by promotion under Rule 3(b) of the aforesaid Recruitment Rules. Therefore, the LDCE-2016, in our view, is selection by promotion falling under Rule 3(b) of the Police Sub-Inspector Recruitment Rules, 1995.

14. The only issue which now arises for our consideration in this Writ Petition is whether the Respondent No.1-State was justified in issuing Government Resolution dated 22nd April 2019 to absorb additional 636 candidates in excess of original 828 candidates as per the advertisement dated 27th June 2016. If we come to a conclusion that the Respondent No.1-State was not justified in issuing such Government Resolution then 636 candidates who are proposed to be absorbed / sent for training under the said GR would not be eligible to participate for selection by promotion.

15. The brief facts leading to the present writ petition in chronological order are as under:- (a) On 27th June 2016, Respondent No.1-State in consultation with Respondent No.6-MPSC notified 828 vacancies for the post of PSI. Out of 828, 642 were to be related from open category and 46 of 65 balance 186 from reserved category. (b) Respondent No.1 realising the effect of Vijay Ghogre’s decision of this Court and against which appeal was pending before the Supreme Court decided to realign the 186 vacancies by treating 32 of them as open category because of their merit and balance 154 were subjected to an undertaking that their appointments would be subject to outcome of the decision of the Supreme Court in the case of Vijay Ghogre.

(c) To provide for contingency of above Supreme Court decision,

Respondent No.1-State decided to recruit 154 from open category with an undertaking from them that their recruitment would be subject to outcome of the Supreme Court decision in Vijay Ghogre.

(d) Consequent to above, 982 candidates were sent for recruitment –

[642+32+154(R)+154(0)]. (e) On 22nd April 2019, Respondent No.1-State issued a Government Resolution to send 636 candidates for reasons mentioned in the said Government Resolution. (f) Due to above, candidates sought to be sent for training/ recruitment under LDCE-2016 became 1618 (982+636). (g) On 25th September 2023, by an interim order of this Court in CWP/13227/2018 another 154 candidates were directed to be sent for training. 47 of 65 (h) Result of above was as against 828 notified vacancies 1772 candidates were sent for training of which fate of 1098 [(154(R) +154(0)+636(GR)+154(H.Ct.)] candidates was uncertain.

16. The impugned Government Resolution as translated dated 22nd April 2019 reads thus:- GOVERNMENT RESOLUTION HOME DEPARTMENT Government Resolution Number: Police-1818/M.No.355/Pole-5A Madam Cama Marg, Hutatma Rajguru Chowk, Date: 22nd April, 2019 PREFACE:- The Government had received a demand to absorb on the post of Police Sub-inspector, more candidates besides 828 candidates mentioned in the recommendation list of candidates prepared by the Maharashtra Public Service Commission on the basis of the final result of the Police Sub-Inspector Limited Departmental Examination, year 2016. The said Candidates had demanded that the Maharashtra Public Service Commission had recommended 828 candidates in the Police Sub-Inspector Limited Departmental Examination, year 2016 to the Government and while sending the concerned 828 candidates as per the said Recommendation List, for training for the post of Police Sub-Inspector, it was necessary to fill up the posts reserved for the Backward Class category on the basis of merits instead of filling up the said posts category-wise, by taking into consideration the decision given on the date 04.08.2017 by the Hon’ble Bombay High Court regarding the reservation for promotion in Government service. However, while sending these 828 candidates for the training for the post of Police Sub- Inspector, as the Office of the Director General of Police sent even 186 candidates belonging to the Backward class category, from out of these 828 candidates, the contempt of the order passed by the Hon’ble Bombay High Court, Mumbai was committed. The Government, after obtaining legal advice in Original Application No.13/2018 (Shri Rajendra Chavan) filed before the Hon’ble Maharashtra Administrative Tribunal, Mumbai in this connection, took a decision to send 186 more candidates from Serial number 643 onwards in the Recommendation List as per their Merit number on 186 posts reserved for the candidates belonging to backward class category, besides 828 candidates (which include the candidates on 642 posts in open category and the candidates on 186 posts reserved for backward class category) and accordingly, the Government gave instructions to the Director General of 48 of 65 Police to send remaining 154 candidates for the training for the post of Police Sub-Inspector who could have been included on both the basis i.e. backward class category and merit and who had already been sent for the said training for the posts actually reserved for backward class category, by excluding 32 candidates. In the Government Letter in this regard, it has also been clearly mentioned that the inclusion of the said candidates shall be subject to the final decision in Special Leave Petition number 28306/2017 filed before the Hon’ble Supreme Court of India, New Delhi. As mentioned hereinabove, 828 + 154 = 982 candidates of the Police Sub-Inspector Limited Departmental Examination, year 2016 were sent for training. Thereafter, objection were raised to the aforesaid action and requests had been received by the Government to fill up all these 982 posts as per the merit and also to send all the candidates who have scored 230 and more marks for the training for the post of Police Sub-inspector as the candidate belonging to backward class category who had scored 230 marks, was taking training of the post of Police Sub-Inspector. Moreover, Original Application No. 394/2018 (S.B.Rathod and others) had been filed in this regard, before the Hon’ble Maharashtra Administrative Tribunal, Mumbai. The Director General of Police, after taking into consideration the interim order of the Hon’ble Tribunal passed on the date 04.10.2018, instead of sending 154 candidates belonging to backward class category who had been selected on the posts reserved for backward class category and had completed 9 months’ training, for further basic training of the post of Police Sub-Inspector, directed them to resume duty on their original post, in their original Unit. Therefore, the Government, by taking into consideration, the representations received from various Peoples’ Representatives, candidates due to the said action and the final order passed on the date 06.11.2018 by the Hon’ble Maharashtra Administrative Tribunal in Original Application NO. 394/2018, has taken a decision to send the said 154 candidates belonging to the backward class category for further basic training for the post of Police Sub-Inspector and pursuant to the said decision, the Director General Of Police took action to send these candidates for further training. Thus, in the process of the Police Sub-Inspector Limited Departmental Examination, year 2016, instead of 828 posts mentioned in the original Requisition Letter, 982 candidates have been appointed to the post of Police Sub-Inspector. Thereafter, Government had received the representation from the concerned candidate mentioning therein that the candidate mentioned at Sr.No.1615 belonging to the backward class category from out of these 982 candidates, has scored 230 marks and that despite scoring marks more than him, he has not been appointed to the post of Police Sub-Inspector and that injustice has been caused to him as a result thereof and also from the several Peoples’ Representatives. In view thereof, the issue was under consideration of the Government to absorb 636 candidates who have scored 230 and more 49 of 65 than 230 marks, besides the candidates mentioned in the Recommendation List of the Maharashtra Public Service Commission in the process of the Police Sub-Inspector Limited Departmental Examination, year 2016 to the posts of Police Sub-Inspector. On this background, the Hon’ble Cabinet, in its Cabinet Meeting dated 20.02.2019, has taken a decision as follows: “Approval be granted to absorb 636 more candidates from the Merit List published by the Maharashtra Public Service Commission, besides the number of posts mentioned in the original Requisition Letter in respect of the Police Sub Inspector Limited Departmental Examination, Year 2016, in phasewise manner to the posts that would fall vacant from time to time in future in the quota that would be filled up through the Police Sub Inspector Limited Departmental Examination. However, this decision should be brought to the notice of the Maharashtra Administrative Tribunal, Mumbai and thereafter, further steps should be taken”. GOVERNMENT RESOLUTION:- Government approval is hereby granted to absorb 636 candidates, who have scored 230 and more than 230 marks (as per the List in Appendix- A appended herewith) from the Merit List published by the Maharashtra Public Service Commission, besides 828 candidates as per the Original Requisition Letter in respect of the Police Sub-Inspector Limited Departmental Examination, year 2016, on the posts falling vacant from time to time in future, in the quota to be filled up by way of the Police Sub- Inspector Limited Departmental Examination, in phase-wise manner.

2. Accordingly, the Director General of Police shall take further necessary steps in this direction. While taking the said steps, precaution should be taken to see that contempt of the order, if any, passed by the Hon’ble Supreme Court of India, New Delhi, Hon’ble Bombay High Court, Mumbai and its Benches at Aurangabad and Nagpur or by the Hon’ble Maharashtra Administrative Tribunal in this matter, is not committed.

3. The candidates named in Appendix-A annexed to the Government Resolution, shall fill up the attestation forms in the format prescribed by the Government and shall submit the same directly to the Director General of Police, Maharashtra State, Mumbai, within a period of 30 days.

4. ……. 50 of 65

17. The Petitioners have submitted that this Court cannot examine the policy decision of the State that has led to the issuance of the Government Resolution dated 22nd April 2019. We are afraid we cannot accept this submission. Firstly, the Tribunal has given reasons for quashing the impugned Government Resolution dated 22nd April 2019 and the same is under challenge before us. Secondly, the Supreme Court in various decisions which are referred to hereinafter and more particularly in the decision in the case of Gajanan Babulal Bansode (supra) wherein this very Government Resolution was under consideration has directed the Tribunal to consider if there are any exceptional circumstances for issuing the impugned Government Resolution. Therefore, even on this count, this Court is duty bound to examine the validity of the impugned Government Resolution based on the directions given by the Supreme Court and on the basis of which the Tribunal has quashed the impugned Government Resolution. Thirdly, whether the impugned Government Resolution passes the constitutional test or not, would certainly be within the scope of this Court in exercise of its powers of judicial review. Therefore, in our view, this Court is certainly within its jurisdiction to examine the basis of issuing the impugned Government Resolution.

18. The Supreme Court in the case of Gajanan Babulal Bansode (supra) that arose from the order of the Aurangabad Bench of this Court 51 of 65 in Writ Petition No.15045 of 2019 in paragraph 15 observed as under:- “15. The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

19. There is no dispute that as per the Government Resolution dated 27th June 2016, 828 vacancies were notified out of which 642 were under the “Open Category” and the balance 186 were from “various Reserved Category” for promotion to the post of PSI through LDCE – 2016. The Government Resolution of 22nd April 2019 seeks to enhance the said figure by additional 636. The Aurangabad Bench of the Tribunal came to a conclusion that the said Government Resolution of 22nd April 2019 does not pass the test of “extra-ordinary situation” for recruitment of posts more than what was notified on 27th June 2016. Therefore, we are required to examine the Government Resolution of 22nd April 2019 to ascertain where the State was faced with any extraordinary situation which compelled it to issue the said Government Resolution for recruitment of additional 636 candidates for promotion to PSI (in excess of what was notified on 27th June 2016).

20. The test of “extra-ordinary situation” would have to be assessed on the touch stone of what is stated in the Government April 2019. On a reading of the said Government 52 of 65 Resolution, it is stated that additional recruitment was sought based on the representation received by the Government. In the said representation it was stated that 186 candidates belonging to reserved category could not have been appointed because of the decision of the High Court in case of Vijay Ghogre (supra) whereby this Court had struck down the Government Resolution dated 25th April 2004 providing for reservation in promotion. Therefore, sending 186 reserved candidates for training amounted to contempt of the Court. Out of these 186 reserved category candidate 32 candidates were such who qualified under the “Open Category” because of their marks and therefore they were to be considered under the “Open Category” which resulted into balance 154 candidates from the reserved category and appointment of these 154 candidates was subject to the Supreme Court decision in the case of Vijay Ghogre in Civil Appeal No.28306 of 2017. Therefore, the State decided that all those candidates who scored 230 marks and above were required to be sent for training. The said Government Resolution further refers to OA No.394 of 2018 filed before the Principal Bench. It further states that 154 reserved category candidates were absorbed by giving appointment letters. Therefore those candidates who scored more than 230 marks and who were not sent would result into injustice as per the various representations received. Therefore the decision was taken to recruit 636 additional candidates 53 of 65 and a resolution to the said effect was passed.

21. In our view, on a perusal of the Government Resolution, it nowhere states the extra-ordinary situation for recruiting additional 636 candidates. What is stated in the said Resolution is narration of various proceedings before the Court and the Tribunal whereby on account of the striking down of Government Resolution permitting reservation in promotion, 154 reserved candidates who were notified in the 2016 advertisement were given appointment letter and same were subject to the Supreme Court decision in the case of Vijay Ghogre (supra). Therefore, as per the representations received, the said recruitment of 154 candidates would be contrary to the decision of the Bombay High Court in the case of Vijay Ghogre (supra) and therefore, candidates scoring more than 230 marks should be sent which figure was 636. In our view, other than reference to the various Court proceedings, there is no other statement on what was the extra-ordinary situation which compelled the State Government to recruit more than what was notified in the advertisement dated 27th June 2016. The reference to Tribunal and Court proceedings in the Government Resolution cannot in our view be treated as an extra-ordinary situation nor the same was the understanding of the State Government as evident from the said Government Resolution. 54 of 65

22. Therefore in our view, the Tribunal was justified in holding that in the absence of any extra-ordinary situation borne out from the Resolution, any recruitment above the number of vacancies notified/advertised would be bad in law. It is also important to note that the Respondent No.1-State has not challenged the quashing of Government Resolution dated 22nd April 2019. Whether an extraordinary situation exists for the State Government to recruit additional 636 candidates will have to be answered by the State Government. We are afraid that the State Government has not made any submissions on this count as to what was the extra-ordinary situation which compelled them to issue the Government Resolution of 22nd April 2019. If that be so, then the Petitioners cannot contend that there was an extra-ordinary situation for the Government to absorb additional 636 candidates. It is only the State Government that can answer this question and in the absence of any submission on that behalf by the State Government, it would be safe to conclude that there did not exist any extra-ordinary situation to issue such a Government Resolution for recruiting more than what was notified in the 2016 advertisement.

23. The Supreme Court in the case of Gajanan Babulal Bansode (supra) in paragraph 15 while dealing with this very issue with regard to LDCE – 2016 has observed that it is well settled in service jurisprudence that the authority cannot fill up more than the notified 55 of 65 number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies would be violative of Articles 14 and 16(1) of the Constitution of India. We have already observed that we have not been shown any extra-ordinary situation by the State Government which has issued the said Government Resolution and certainly the candidates who want to take the benefit of the said Government Resolution cannot contend that what is stated in the Government Resolution would be extra-ordinary situation. It is the authority that has issued the Government Resolution who has to indicate the existence of an extra-ordinary situation and if the State does not do so then in our view Government Resolution of 22nd 2019 will have to be held to be contrary to paragraph 15 of Gajanan Babulal Bansode (supra). The impugned Government Resolution is issued by Respondent No.1-State. The said Government Resolution was the subject matter of adjudication before the Tribunal. The Tribunal quashed the Government Resolution on the ground of absence of extraordinary/exigencies having been shown. The Respondent No.1-State has accepted this decision of the Tribunal. The sequitur which follows from this acceptance is that in fact no extra-ordinary situation exits to recruit more than what was notified in the advertisement. Today, the Petitioners cannot put words in the mouth of the Respondent No.1-State to make them speak of the existence of extra-ordinary situation when 56 of 65 the State has failed to address this issue. Since the State’s mouth is silent it can be inferred that it may have realised its mistake in issuing the impugned Government Resolution and therefore, it did not challenge the order of the Tribunal. Therefore, even on this count, the Petitioners cannot seek revival of the impugned Government Resolution. We may however, observe that the Petitioners were belied by the issuance of the impugned Government Resolution which does not stand legal scrutiny.

24. The Supreme Court in following decisions has consistently reiterated that in service law, there cannot be recruitment of more than the number of posts which is advertised and if more than the number notified is to be recruited, then same would have to be in an exceptional circumstances or in rare circumstances.

(i) Rakhi Ray & Ors. Vs. High Court of Delhi & Ors.5,

(ii) Arup Das & Ors. Vs. State of Assam & Ors.[6]

(iii) Amlan Jyoti Barooah Vs. State of Assam & Ors.[7]

(iv) Surinder Singh & Ors. Vs. State of Punjab & Anr.[8]

(v) Vivek Kaisth & Anr. Vs. State of HP & Ors.[9]

25. Certainly in the present case, we do not find any extra-

57 of 65 ordinary circumstances for the State Government to issue 22nd 2019 Government Resolution for the absorption of 636 candidates. The representations made by various individuals in which it is stated that the recruitment is contrary to the decision of the High Court in the case of Vijay Ghogre cannot certainly be treated as an extra-ordinary circumstance. Assuming that the recruitment is contrary to a particular judgment of the High Court, it may result into that decision being wrong but certainly cannot be treated as extra-ordinary situation for recruitment of more than the number notified.

26. We may note the decision of the Madras High Court, where the State had to recruit more than the number of vacancies advertised and the justification for the same was on account of medical emergency and same was upheld by the High Court in case of Dr. Sagaya Panimalar Vs. State of Tamil Nadu & Ors.10 The Madras High Court was posed with a situation, wherein it had to decide whether the circumstances were extra-ordinary circumstances for the State to recruit more than notified vacancies without issuing a fresh notification and without following the due recruitment process. In that case, there was outbreak of dengue fever all over the State of Tamil Nadu and many people started dying due to shortage of doctors to attend in primary health medical center. Judicial note of this situation was taken by National

58 of 65 Human Rights Commission and direction was issued by the said Commission to fill up vacancies of doctors. In these circumstances, the Madras High Court held that this would constitute an extra-ordinary situation to deviate from the notification to fill up vacancies for the post of doctors from the waiting list of selected candidates. Since if new notification had to be issued, it would only result into delay and larger purpose of saving individuals life would be defeated. The Court observed that public interest would suffer if the recruitment process had to be done by giving fresh notification and it was in these circumstances, that appointment of selected candidates for waiting list was upheld. In the present case before us, no such extra-ordinary situation has been pointed out which would pass the test of extraordinary situation to uphold the Government Resolution of 22nd

2019.

27. The recruitment of the Police Sub-Inspector is governed by the Police Sub-Inspector (Recruitment) Rules, 1995. Rule 2(a) defines “Commission” to mean the Maharashtra Public Service Commission. Rule 3 prescribes that Appointment to the post of Sub-Inspector of Police in the Police Force in the State of Maharashtra shall be made either (a) by promotion on the basis of seniority or (b) by selection of persons working in the Police Force on the basis of the result of the limited departmental examination held by the Commission for 59 of 65 appointment or (c) by nomination on the basis of the result of a competitive examination held by the Commission. Rule 4 prescribes that the appointment to the post of Police Sub-Inspector by promotion, selection on the basis of limited departmental examination and nomination shall be made in the ratio of 25:25:50. Rule 5 prescribes that notwithstanding anything contained in these rules, if in the opinion of the Government, the exigencies of service, so require, Government may with prior consultation with the Commission make appointment to the post of Police Sub-Inspector in relaxation of the ratio prescribed for appointment by promotion, selection on the basis of limited departmental examination or nomination.

28. In our view, aforesaid Rule 5 would apply to a case where the ratio of 25:25:50 is to be disturbed. In the instant case before us, we are not concerned with the action of the Respondent No.1-State in disturbing this ratio but we are concerned with whether the Respondent State can recruit more than what is advertised by promotion of inservice police constables. In the Government Resolution of 22nd 2019 also, the Respondent-State has not exercised its power under Rule 5. Therefore, one cannot rely upon Rule 5 to justify the action of recruiting 636 candidates under the impugned Government Resolution dated 22nd April 2019. Assuming that the Respondent-State has exercised its power under Rule 5 then the said power can be exercised 60 of 65 only with prior consultation with the Commission. Although Rule 5 prescribes that the Government “may” with prior consultation with the Commission exercise its power under Rule 5, in our view, the said phrase “may” should be construed as “shall.” This is so because Rule 5 has to be read along with Article 320 (3)(a) and (3)(b) of the Constitution of India which provides that the State Public Service Commission shall be consulted on all matters relating to the methods of recruitment to civil services and for civil posts and on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers. In this regard, it is relevant to refer to the decision in the case of Dinkar Anna Patil & Anr. Vs. State of Maharashtra & Ors.11 where while interpreting Maharashtra Sales Tax Officers Class I (Recruitment) Rules, 1982 which provided for consultation with Public Service Commission, Supreme Court held that the phrase “may” should be interpreted as “shall” so that requirement of consultation with the Commission is not rendered nugatory.

29. In the instant case, in the Government Resolution dated 22nd April 2019, we could not find any reference to the consultation with the Commission nor any document has been shown to us by the parties

61 of 65 which will indicate that consultation was made by the Respondent No.1-State with Respondent No.6-Commission. Therefore even on this count, the impugned Government Resolution dated 22nd inasmuch as it seeks to recruit 636 candidates without consultation with the Commission is bad-in-law.

30. Rule 5 further prescribes that the ratio can be disturbed if the “exigencies of service” so require. The phrase “exigencies of service” would mean extra-ordinary situation which arose which compels the Government to disturb the ratio. The word “exigencies” has to be read with “of service.” We have already observed above that there have been no extra-ordinary circumstances which have been shown to us which compelled the Respondent No.1-State to recruit more than what was advertised. Furthermore in our view, the Government Resolution dated 22nd April 2019 refers to various representations received from various quarters which led to issuance of the said Government Resolution for recruitment of additional 636 candidates. In our view, such receipt of representations from various quarters would not fall within the expression “exigencies of service” and therefore even on this count, the impugned Government Resolution dated 22nd April 2019 is contrary to Rule 5 of the Recruitment Rules.

31. The Government Resolution dated 22nd April 2019 reproduces 62 of 65 the decision taken by the Cabinet in its meeting dated 20th February

2019. In the said Cabinet meeting, the decision is taken that approval granted to absorb 636 more candidates, besides the number of posts mentioned in the original requisition letter in respect of LDCE 2016 is to fill up in a phase-wise manner the posts that would fall vacant from time to time in future in the quota that would be filled up in the LDCE. The said decision further states that same should be brought to the notice of the Tribunal and thereafter further steps should be taken. From this Cabinet meeting decision, it appears that the excess candidates are sought to be absorbed to fill up the vacant posts which would arise in future. In our view, this cannot fall within the “extraordinary circumstances” or “exigencies.” Similar issue had come up for consideration before the Supreme Court in case of Prem Singh and Ors. Vs. HSEB & Ors.12 wherein the Supreme Court held that excess recruitment to fill future vacancies was invalid. Similar view is reiterated by the Supreme Court in the case of State of Bihar & Anr. Vs. Mandan Mohan Singh & Ors.13 Therefore, the reason given in the decision of the Cabinet meeting to absorb 636 more candidates besides the original advertised posts is contrary to the Supreme Court’s decision and consequently, the Government Resolution dated 22nd cannot be sustained since same cannot be done to fill up future

32. The aforesaid cabinet decision also states that same should be brought to the notice of the Tribunal and thereafter further steps should be taken. In our view, the Cabinet appears to have taken this decision to absorb 636 more candidates subject to the approval of the same by the Tribunal and therefore, they have stated that further steps should be taken after bringing of the notice of the Tribunal the said cabinet decision. In the instant case, the Tribunal has not approved the said decision by quashing the Government Resolution of 22nd and, therefore, even on this count, the Petitioners cannot seek any relief. The absorption of 636 candidates over and above the number of vacancies advertised would deprive candidates who become eligible for promotion thereafter because if the said additional posts are advertised subsequently then those who become eligible for appointment would not be entitled to apply for the same.

33. The advertisement dated 27th June 2016 does not state that the number of vacancies notified would change in future as the process of recruitment progresses. Therefore, even on this count the impugned Government Resolution to absorb 636 candidates over and above 828 notified cannot stand legal scrutiny.

34. The decisions relied upon by the Petitioners in the 64 of 65 compilation of case laws are on general interpretation and are not applicable to the facts of the present case before us and therefore, we are not dealing with the same.

35. We may observe that in the present decision, we have not expressed any views on the fate of decision of this Court in the case of Vijay Ghogre (supra) post Jarnial Singh’s case but we have analysed the same in Writ Petition No.13227 of 2018.

36. We agree with the submission of Respondent No.1-State that 154 candidates from reserved category and open category are appointed on an undertaking by which they will abide by the outcome of the decision by the Supreme Court in the case of Vijay Ghogre (supra).

37. Looked at from any angle, in our view, the Tribunal in OA No.722 of 2019 and in O.A. No.733 of 2019 was justified in quashing the impugned Government Resolution dated 22nd April 2019. Therefore, the present Writ Petitions are required to be dismissed. Ordered accordingly. Rule is discharged. In view of dismissal of the writ petitions, Interim Applications do not survive and are disposed of accordingly. [JITENDRA JAIN, J.] [A. S. CHANDURKAR, J.]