Authority cannot fill up more than advertised number of vacancies; such recruitment violative of Arts. 14 & 16(1): Supreme Court

Supreme Court: The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra* and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,

“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.”

On 02-06-2016, government of Maharashtra issued a requisition to the MPSC to conduct the Limited Departmental Competitive Examination (“LDCE”) for selection of candidates to the post of Police Sub Inspector. The Home Department had notified 828 vacancies, out of which 642 were from the open category and 186 were from various reserved categories for promotion to the post of Police Sub-Inspector. MPSC recommended the names of 828 candidates, out of which 642 were from the open category, who had secured 253 marks and above; and 186 candidates were from the various reserved categories, who had secured 230 marks and above in departmental examination.

Meanwhile, government vide G.R. dated 22-04-2019 took a policy decision to accommodate 636 additional candidates who had secured more than 230 marks in the LDCE – 2016 examination which was objected by MPSC, contending that,

“As per Article 320 of the Constitution, the MPSC has the power to appoint candidates to various posts in the State. The government had taken the decision without consulting MPSC, which was a serious irregularity, and would hamper the functioning of the Commission.”

Relevant rules governing promotion and recruitment were Rule 4 and 5 of Police Sub-Inspector (Recruitment) Rules, 1995:

Rule 4: 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: Notwithstanding anything contained in these rules, if in the opinion of Government, the exigencies of service, ‘so requires, Government may with prior consultation with MPSC 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.”  

In the above background, various Original Applications were filed by candidates to challenge the Policy decision dated 22.04.2019 on the ground that the additional 636 candidates who were directed to be accommodated to the post of Police Sub-Inspector, was contrary to the Recruitment Rules, and would have the inevitable effect of distorting the ratio for recruitment through the Limited Departmental Examination. The Tribunal vide interim Order directed that Status Quo be maintained with respect to the 636 additional candidates which was vacated by the Tribunal on the request of respondents.

Aggrieved by the order of the Tribunal, the appellants approached Bombay High Court in writ jurisdiction. The High Court, however rejected the petition and  issued a direction to the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period.

Observing Rule 5 of Recruitment Rules, 1995, the Bench stated that, 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, which may be resorted to only in rare and exceptional circumstances. The Bench further observed,

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 which is violative of Arts. 14 and 16 (1) of the Constitution. The Bench held,

“Promotional prospects of the appellants would be seriously prejudiced; if a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the appellants.”

Hence, the Court directed that G.R. dated 22-04-2019 would remain stayed during the pendency of proceedings before the Tribunal. The order of the Tribunal whereby it had vacated the interim Order 18-10-2019, and order of the High Court was set aside. The Tribunal was further directed to decide the pending O.A. within a period of six months at the same time to ensure that the additional 636 candidates were given notice of the pending O.A., to enable them to appear and participate in the proceedings.

[Gajanan Babulal Bansode v. State of Maharashtra, 2021 SCC OnLine SC 57, decided on 05-02-2021]

Kamini Sharma, Editorial Assistant has put this story together 

*Judgment by: Justice Indu Malhotra

Appearances before the Court by

For appellant: Senior Advocate Vinay Navare

For State: Advocate Sachin Patil