By Adv. R. S. Agrawal 

 

 

THROUGH the judgement of the case – Sandip Suresh Mali and five others v. Maharashtra Public Service Commission (MPSC) and others, delivered on April 4, 2024, Justice Atul Chandurkar and Justice Jitendra Jain, at the Principal Seat of the Bombay High Court at Mumbai, have quite candidly stated that in the HC’s view, the prayers made by the petitioners as candidates for the post of Police Sub–Inspector, that they should be considered against the posts advertised in the subsequent years is concerned, the same is untenable because for each year there is a separate advertisement for separate number of posts and the criteria required for filling up the posts would keep on changing every year as per the prevailing situation in those years. If the prayer of the petitioners is to be accepted then it would affect the subsequent years candidates who have applied in subsequent years which would lead to a chaotic situation since for granting such relief all the candidates affected in subsequent years will have to be heard. In the Court’s view such a course of action cannot be permitted.

 

There is no dispute that powers under Article 226 of the Constitution of India are very wide, but that would not empower this Court to upset the requirement for the subsequent years for the stated reasons. Any such exercise of power under Article 226 by this Court would amount to this court exercising powers of recruitment, which is not permissible. The decisions cited and relied upon by the petitioners with respect to the powers of the Court under Article 226 of the Constitution of India would not be applicable to the facts of the present case before the Court and therefore, the same would not be any assistance to further the case of the petitioners. Through this petition, the petitioners challenged the order passed by the Maharashtra Administrative Tribunal (M.A.T.), whereby the Tribunal has rejected the prayer to remove the successful candidates belonging to open category - Respondents 7 to 19 in Original Application and directed, the case of the petitioner to be considered for the post of Police Sub-Inspector, if there are vacant posts on the date of the impugned order for the year for which the recruitment process was conducted. On April 26, 2017, the respondent-1.

 

MPSC issued an advertisement for recruitment of 650 candidates for the post of PSI. The petitioners applied for the said posts under the Other Backward Class (OBC) category and /or De-Notified Tribe (DT-A category). The applicants cleared their preliminary examination. Thereafter on November 5, 2017, the petitioners appeared for the main examination and cleared the same and thereafter, the physical test and interview was conducted. On March 8, 2019, the merit list was declared and the petitioners secured 231 marks, but did not find their names in the recommendation list as they secured less marks, than cut-off meant for their respective category. On January 3, 2020, after almost ten months, the petitioner made an application under the Right To Information Act, 2005, seeking information regarding procedure of selection of reserve category candidates from open category, who have secured marks above the cut-off marks, of the general category. This information was provided to the petitioners on February 3, 2020. The petitioner, thereafter filed Original Application (O.A.) on January 7, 2021. The petitioners made an Interim Application in the said O.A., which came to be rejected. The said rejection of prayer for interim relief was challenged in the HC and the Court remanded the matter to the Tribunal for fresh consideration.

 

On remand, on September 19, 2022, the Tribunal rejected the petitioners’ prayer to displace the respondent-candidates. However, the Tribunal directed that the petitioners be considered for the post of PSI, if any vacancy exists on the date of its order for the year for which the examination was conducted. It is against this backdrop that these petitioners were before the Court. At the outset, the petitioners submitted that they do not propose to displace respondents 7 to 19, who were already appointed after filing the O.A. The only serious submission, made by the petitioner is that they may be considered for the said post in subsequent year’s advertisements. The petitioners submitted this Court has wide powers under Article 226 to consider the said prayer and issue necessary directions to the respondents – State and its Departments. It was submitted by the respondent-State that there are no vacancies existing pursuant to the advertisement of April 26, 2017, since all the posts have been filled up. The State also further submitted that the prayers for petitioners for their consideration for the said post in subsequent advertisements also cannot be entertained since the recruitment process has been completed for the subsequent years or is at its advanced stage and if any such relief is granted, it would upset the right of the candidates who are selected and appointed in subsequent years or are in the zone of consideration for those respective years.

 

The respondent-State has supported paragraph- 15 of the Tribunal’s order wherein the Tribunal has stated that the petitioners did not exercise their remedy in time so as to seek any relief. Therefore, the State prayed for dismissal of the writ petition. Admittedly, the respondents have stated that as on the date of the impugned order of the Tribunal and also as of today, there are no vacancies in existence for the petitioners to be accommodated pursuant to the advertisement of April 26, 2017 for the post of PSI. The petitioners have also fairly submitted that they do not wish to displace respondents- 7 to 19 and seek appointment in their place. In the light of these facts, insofar as the petitioners’ grievance is to be considered for the vacancies advertised on April 26, 2017, would not survive. The petitioners participated in the selection process and having not been selected cannot challenge the MPSC Rules and the advertisement. Same ought to have been challenged at the first available instance. Therefore, even on this count, the HC did not find any infirmity in the Tribunal’s order. In view of this and looked “from any angle”, according to the High Court, there is no reason to interfere in the Tribunal’s order and no relief can be granted to the petitioners on the facts of the case and, therefore, the HC has dismissed the petition.