Vishal Ashok Thorat and Ors. vs Rajesh Shrirambapu Fate & Ors.

4 – Post of Assistant Inspector of Motor Vehicles, Group-C – Advertisement Nos. 2 of 2017 and 48 of 2017 inviting applications for the posts – Selection of 832 candidates and inclusion in the selection list – Writ petition by respondent no. 1 challenging 2016, Rules – Disposed of, giving liberty to make representation to the State, which was rejected – Filing of second writ petition by respondent no.1 challenging only 2016 Rules in which respondent filed amendment application seeking quashing of advertisements as well as list of selected candidates which was allowed – High Court though held that respondent No.1 cannot be permitted to challenge the advertisements but set aside the proviso to r. 3(iii) and 3(iv) and r. 4 and issued directions to choose and select only those who had participated in the selection process and fulfilled the requirement as per the Rules – On appeal, held: When a person is not permitted to challenge the advertisements and process of recruitment, the select list which is outcome of such recruitment process cannot be interfered at the instance of such person – High Court erred in issuing direction to modify the select list – Furthermore, the selected candidates whose names were already published ought to have impleaded – In absence of the same, the High Court erred in issuing direction to modify and review the select list – By mere inclusion in the select list, there is no right of appointment but the candidate is entitled for consideration of his appointment, which could not have been denied without there being any valid reason – Respondent No.1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No.1 to challenge the advertisement and select list, permitting him to challenge the validity of the Rules in reference to the same advertisements is indirectly challenging something which could not be challenged directly by the respondent No.1 – Thus, when the respondent no. 1 was held not entitled to challenge the advertisement, the proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list was clearly impermissible – Thus, the High Court erred in issuing the directions and the order passed by the High Court is set aside.

Service Jurisprudence: Writ petition relating to condition of service of Assistant Inspector of Motor Vehicles – High Court entertained the writ petition as PIL – Correctness of – Held: With regard to service jurisprudence, PIL are not entertained – Writ petition filed by respondent No.1 was not styled or framed as PIL – High Court being influenced by the submission that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfill qualification as laid down in notification, virtually entertained the writ petition as PIL – High Court ought not to have entertained the writ petition.

Allowing the appeals, the Court

HELD: 1.1 The High Court permitted the respondent No.1 to challenge the advertisement Nos.2 of 2017 and 48 of 2017 and the entire recruitment process undertaken thereunder. Respondent No.1 was also permitted to challenge the select list dated 31.03.2018. Respondent No.1 in his writ petition sought to challenge advertisements only on 13.04.2018 whereas advertisement for preliminary examination was first issued on 30.01.2017. Admittedly, respondent No.1 never applied against the advertisement to participate in the recruitment for the post of Assistant Inspector of Motor Vehicles. The High Court although has permitted respondent No.1 to amend the prayer in the writ petition by including challenge to the advertisements as well as challenge to the select list but in the impugned judgment the High Court has categorically held that respondent No.1 cannot be allowed to challenge the advertisements dated 30.01.2017 and 01.07.2017. The High Court in paragraph 48 of its judgment has clearly held that writ petitioner cannot be permitted to challenge the advertisements dated 30.01.2017 and 01.07.2017. When the High Court held that respondent No.1 could not be permitted to challenge the advertisements dated 30.01.2017 and 01.07.2017, it cannot be appreciated that how the High Court could have interfered with the select list of 832 candidates, which was prepared after preliminary examination and main examination in pursuance to the advertisements dated 30.01.2017 and 01.07.2017. When respondent No.1 was not allowed to challenge the advertisements, tinkering with the select list by the High Court was impermissible and self– contradictory. The direction in paragraph 51 of the impugned judgment clearly directed the select list to be re– drawn by including only those candidates who fulfill the requirements of practical experience and driving licence as prescribed by the Central Government i.e. as substantive part of Rule 3(iii) and Rule 3(iv) of Rules, 2016, which the High Court could not do in view of its finding in paragraph 48 of the judgment. When a person is not permitted to challenge the advertisements and process of recruitment, the select list which is outcome of such recruitment process cannot be interfered at the instance of such person. The High Court, thus, clearly erred in issuing direction to modify the select list. [Para 29-32] [643-F-H; 644-A-B, E-F, H; 645-A-B]

1.2 The submission of the appellant is that respondent No.1 in his Writ Petition No.1270 of 2018 did not implead any of the selected candidates out of the list of 832. No selected candidate having been impleaded by respondent No.1, the High Court erred in issuing direction to modify and review the select list. The direction of the High Court is clearly against the interest of the appellants, who as per direction shall go out of the select list, the select list having been published on 31.03.2018, i.e., much before the date when respondent No.1 filed application for amendment in the writ petition for challenging the advertisement Nos.2 of 2017 and 48 of 2017, he ought to have impleaded the selected candidates whose names were already published by the MPSC. Respondent No.1 without bringing the selected candidates on record could not have obtained any order adverse to the selected candidates. [Para 33] [645-C-E]

Udit Narain Singh, Malpatharia v. Additional Member Board of Revenue, Bihar and another AIR 1963 SC

786 : [1963] Suppl. SCR 676 ; Public Service

Commission, Uttaranchal v. Mamta Bisht and others (2010) 12 SCC 204 : [2010] 7 SCR 289 – referred to.

1.3 The present is a case of recruitment and selection, where after participation in the selection process, 832 candidates were finally selected and were included in the select list. By inclusion in the select list, the selected candidate had acquired right of consideration for appointment, which could not have been taken away in the writ petition filed by respondent No.1, where he could not have challenged the advertisement. [Para 36] [649-G-H]

1.4 It may be true that by mere inclusion in the select list, there is no right of appointment but by inclusion in the select list the candidate is entitled for consideration for his appointment, which could not have been denied without there being any valid reason. Thus, the High Court could not have modified the select list without the selected candidates, whose interest was jeopardized by the High Court being impleaded in the writ petition. Thus, directions issued by the High Court are not sustainable also in view of the fact that respondent No.1 had not impleaded the selected candidates in his writ petition. [Para 37] [650-A-C]

1.5 In the facts of the instant case, where writ petitioner– respondent No.1 was held by the High Court not competent to challenge the advertisement Nos.2 of 2017 and 48 of 2017, the High Court committed error in proceeding to examine the validity of the Rules, 2016. The challenge to Rules, 2016 in the background of the instant case ought not to have been allowed to be raised at the instance of the writ petitioner. The respondent No.1, who did not participate in the selection and the High Court had specifically rejected the entitlement of the respondent No.1 to challenge the advertisement Nos.2 of 2017 and 48 of 2017, as held in the judgment, permitting him to challenge the validity of the Rules in reference to the same advertisements is nothing but indirectly challenging something which could not be challenged directly by the respondent No.1. The High Court in the facts of the instant case, where respondent No.1 was not allowed to challenge the advertisements or the select list should not have been allowed to challenge the Rules, 2016 in so far as the selection in question was concerned. The writ petition filed by respondent No.1 was not styled or framed as PIL. It is well settled that with regard to service jurisprudence, PIL are not entertained. [Para 38] [650-D-G]

Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others (2013) 4 SCC 465 : [2012] 10 SCR 994 – referred to.

1.6 A perusal of the impugned judgment indicates that the High Court was influenced by the submission of the appellant that loss being caused to the public revenue by appointment of Assistant Inspector of Motor Vehicles, who did not fulfill qualification as laid down in notification dated 12.06.1989, the High Court has virtually entertained the writ petition as PIL. Following observations made by the High Court clearly indicate that the High Court proceeded to treat the writ petition as PIL, although, it relates to condition of service of Assistant Inspector of Motor Vehicles. [Para 39] [651-B-C]

1.7 The High Court ought not to have entertained the writ petition, in which challenge was to the Rules, 2016, which were clearly in reference to recruitment under advertisement Nos.2 of 2017 and 48 of 2017. When the respondent No.1-writ petitioner was held not entitled to challenge the advertisement at his instance, proceeding to entertain the challenge to the validity of the Rules and to strike down the Rules and modifying the select list dated 31.03.2018 was clearly impermissible. The High Court, thus, fell in error in issuing the directions. Also, it was not necessary for the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) and Rule 4 of the Rules, 2016. The judgment of the Division Bench of the High Court is set aside and the writ petition is dismissed. [Paras 40 and 42] [651-D-G; 652-B-C] A. Janardhana vs. Union of India and others (1983) 3 SCC 601 : [1983] 2 SCR 936 – held inapplicable.