# GAJANAN BABULAL BANSODE & ORS v. STATE OF MAHARASHTRA & ORS

- **Citation:** [2021] 1 S.C.R. 478
- **Court:** Supreme Court of India
- **Decided:** 2021-02-05
- **Case number:** Civil Appeal No. 104 of 2021
- **Bench:** L. Nageswara Rao, Indu Malhotra, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gajanan-babulal-bansode-ors-v-state-of-maharashtra-ors-34675
- **Pages:** 10

## Headnote

Service Law - Selection - To the post of Police Sub Inspector
- State of Maharashtra had issued the impugned G.R. without any
consultation or prior approval by Maharashtra Public Service
Commission (MPSC) - The impugned G.R. sought to fill up double
the number of vacancies notified for Limited Departmental
Competitive Examination (LCDE) - OAs filed challenging the policy
decision contained in the impugned G.R. - Maharashtra
Administrative Tribunal by interim order directed that status quo be
maintained with respect to 636 additional candidates whose list was
appended to the G.R. - Held: 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 Arts.14 and 16 (1) of
the Constitution - Tribunal vacated the order of status quo, on the
ground that two of the applicants had participated in the
examination, but failed to qualify - This could not be a justifiable
ground to vacate the interim order, since promotional prospects of
the applicants/petitioners would be seriously prejudiced, as a block
of 636 additional candidates would be appointed as Police SubInspectors over and above the applicants - The other ground on
which the Tribunal vacated the interim order was that the applicants
had not challenged the G.R. - This is an erroneous observation
which would be evident from the prayers in the O.A.- The third
ground on which the Tribunal vacated the interim order was that in
similar O.As challenging the same G.R, the applicants in those cases
had withdrawn their respective cases, since they were desirous of
pursuing their representations with the State Government - This
could also not be a justifiable ground for vacating the order of
status quo merely because other parties had chosen to withdraw
their O.A. for their own reasons - High Court in writ petition has
A
B
C
D
E
F
G
H
479
issued a direction to the State to send the additional list of 636
candidates for training of 9 months during the pendency of
proceedings before the Tribunal - Such a direction ought not to
have been passed in writ petition - Direction now passed by Supreme
Court that the impugned G.R. will remain stayed during pendency
of proceedings before the Tribunal - Tribunal to decide the pending
O.A. within six months while ensuring that the additional 636
candidates are given notice of the pending O.A. through the State,
to enable them to appear and participate in the proceedings -
Tribunal further directed to club all pending Original Applications
challenging the impugned G.R. and pass a common judgment in
these cases - Police Sub-Inspector (Recruitment) Rules, 1995 - r.5
- Constitution of India - Art.320(3)(a).

## Text

A
B
C
D
E
F
G
H
478
SUPREME COURT REPORTS
[2021] 1 S.C.R.
 [2021] 1 S.C.R. 478
478
GAJANAN BABULAL BANSODE & ORS.
v.
STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 104 of 2021)
FEBRUARY 05, 2021
[L. NAGESWARA RAO, INDU MALHOTRA AND
VINEET SARAN, JJ.]
Service Law - Selection - To the post of Police Sub Inspector
- State of Maharashtra had issued the impugned G.R. without any
consultation or prior approval by Maharashtra Public Service
Commission (MPSC) - The impugned G.R. sought to fill up double
the number of vacancies notified for Limited Departmental
Competitive Examination (LCDE) - OAs filed challenging the policy
decision contained in the impugned G.R. - Maharashtra
Administrative Tribunal by interim order directed that status quo be
maintained with respect to 636 additional candidates whose list was
appended to the G.R. - Held: 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 Arts.14 and 16 (1) of
the Constitution - Tribunal vacated the order of status quo, on the
ground that two of the applicants had participated in the
examination, but failed to qualify - This could not be a justifiable
ground to vacate the interim order, since promotional prospects of
the applicants/petitioners would be seriously prejudiced, as a block
of 636 additional candidates would be appointed as Police SubInspectors over and above the applicants - The other ground on
which the Tribunal vacated the interim order was that the applicants
had not challenged the G.R. - This is an erroneous observation
which would be evident from the prayers in the O.A.- The third
ground on which the Tribunal vacated the interim order was that in
similar O.As challenging the same G.R, the applicants in those cases
had withdrawn their respective cases, since they were desirous of
pursuing their representations with the State Government - This
could also not be a justifiable ground for vacating the order of
status quo merely because other parties had chosen to withdraw
their O.A. for their own reasons - High Court in writ petition has
A
B
C
D
E
F
G
H
479
issued a direction to the State to send the additional list of 636
candidates for training of 9 months during the pendency of
proceedings before the Tribunal - Such a direction ought not to
have been passed in writ petition - Direction now passed by Supreme
Court that the impugned G.R. will remain stayed during pendency
of proceedings before the Tribunal - Tribunal to decide the pending
O.A. within six months while ensuring that the additional 636
candidates are given notice of the pending O.A. through the State,
to enable them to appear and participate in the proceedings -
Tribunal further directed to club all pending Original Applications
challenging the impugned G.R. and pass a common judgment in
these cases - Police Sub-Inspector (Recruitment) Rules, 1995 - r.5
- Constitution of India - Art.320(3)(a).
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 104 of
2021.
From the Judgment and Order dated 06.03.2020 of the High Court
of Judicature at Bombay Bench at Aurangabad in Writ Petition No.
15045 of 2019.
Vinay Navare, M.N.Rao, R.Basant, Sr. Advs., Ajay Deshpande,
Vinod Sangavikar, Anand Dilip Landge, M. Y. Deshmukh, Ms. Aaina
Verma, Ravindra Keshavrao Adsure, Siddeshwar Namdev Biradar, Yash
Prashant Sonavane, Ms. Manjeet Kirpal, Manu Krishnan, Sachin Patil,
Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Advs. for the appearing
parties.
The Order of the Court was passed by
INDU MALHOTRA, J.
1. The Government of Maharashtra issued a requisition on
02.06.2016 to the Maharashtra Public Service Commission ("MPSC")
to conduct the Limited Departmental Competitive Examination("LDCE")
for selection of candidates to the post of Police Sub Inspector.
2. The Home Department, Government of Maharashtra vide
Government Circular dated 27.06.2016 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
through the LDCE- 2016.
GAJANAN BABULAL BANSODE & ORS. v. STATE OF
MAHARASHTRA & ORS.
A
B
C
D
E
F
G
H
480
SUPREME COURT REPORTS
[2021] 1 S.C.R.
3. The selection was governed by the provisions of the Police
Sub-Inspector (Recruitment) Rules, 1995. The relevant Rules are
extracted hereunder:
"Rule 3: 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 of a suitable person on the basis of seniority
subject to fitness from amongst the persons holding the posts of
Havaldar and Assistant Police Sub-Inspector in the Police Force
who have completed not less than five years continuous regular
service or seven years broken service and who qualify in the
departmental examination held by the Director General of Police
in accordance with the rules laid down in paragraph 5 of the
Government Resolution No. PSB. 0390/CR-408/POL-5-A, dated
5th July 1995, 1994
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 Maharashtra Public Service Commission for appointment to
the post of Sub-Inspector of Police for admission to which a
candidate shall-
(i) not be more than 35 years of age :
Provided that, relaxation of age of five years may be granted to
candidates of Backward Classes and-
'Provided also that, the candidates who were eligible to appear
for the limited departmental examination after 1st January, 1991,
but who were not allowed to appear for the limited departmental
examinations held in 1998 and 2002 on account of the age limit,
shall be given three chances to appear for next consecutive
examinations.
(ii) have completed a minimum regular service as Police Constable
with educational qualifications as mentioned below
Minimum Regular Service Educational Qualification
(1) 4 years
..
Degree in any faculty.
(2) 5 years
..
Passed the Higher Secondary School
Certificate examination
A
B
C
D
E
F
G
H
481
(3) 6 years
..
Passed the Secondary School
Certificate examination
(c) by nomination on the basis of the result of a competitive
examination held by the Commission in accordance with the rules
made in this behalf from time to time, and for admission to which
a candidate shall :-
(i) not be less than nineteen years of age and not more than
(twenty-eight years) of age on the date specified by the
Commission
Provided that the maximum age limit may be relaxed upto (thirtyone years) in respect of candidates belonging to the Backward
Classes:
Provided that an ex-serviceman who has served continuously in
the Armed Forces for a period of not less than 5 years may be
allowed to deduct from his age, the period of 2 years over and
above the length of his continuous service in the Armed Forces
upto the date of release from service.
(ii) Possess a degree or any other qualification declared by the
Government to be equivalent thereto;
(iii) Possess thefollowing minimum physical measurements, namely:
For Male
(i) Height
..
1165
Centimetres minimum.
(ii) Chest
..
79
Centimetres and above with
minimum expansion of
5 centimetres.
For Female
 Height
..
1157
Centimetres.
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
GAJANAN BABULAL BANSODE & ORS. v. STATE OF
MAHARASHTRA & ORS. [INDU MALHOTRA, J.]
A
B
C
D
E
F
G
H
482
SUPREME COURT REPORTS
[2021] 1 S.C.R.
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."
4. The 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, on the basis of the corrected
final result declared on 12.12.2017.
5. The Home Department, Government of Maharashtra videa
Government Resolution No. Police -1818/ File 355/Pol 5A dated
22.04.2019 notified that the Cabinet had taken a policy decisionto
accommodate 636 additional candidates who had secured more than
230 marks in the LDCE - 2016 examination.
6. On 11.06.2019, the Directorate General of Police issued a
direction for conducting the medical test and other formalities to send
the additional 636 candidates for training to the Maharashtra Police
Academy, Nasik, as a part of the process of their appointment to the
post of Police Sub-Inspector.
7. The Deputy Secretary of the MPSC addressed a letter dated
11.07.2019 to the Additional Chief Secretary (Appeal and Security)
Government of Maharashtra wherein it was stated that as per Article
320 of the Constitution, the MPSC has the power to appoint candidates
to various posts in the State. The post of Police Sub-Inspector being a
Class III post, was required to be filled up in accordance with The Police
Sub-Inspector (Recruitment) Rules, 1995. The list of 636 additional was
notified by the Government on its official website, had been done without
consulting the MPSC, which was a serious irregularity, and would hamper
the functioning of the Commission.
8. In the above background, various Original Applications were
filed by candidates to challenge the Policy decision contained in the G.R.
dated 22.04.2019. In the present case O.A. No. 722 / 2019 was filed by
a group of In-service candidates who were working as Police Constables,
and were aggrieved by the impugned G.R., since it would adversely
affect their promotional prospects.
The Petitioners challenged the G.R. dated 22.04.2019 inter alia
on the ground that the additional 636 candidates who were directed to
be accommodated to the post of Police Sub-Inspector, was contrary to
A
B
C
D
E
F
G
H
483
the Recruitment Rules, and would have the inevitable effect of distorting
the ratio for recruitment through the Limited Departmental Examination.
Rule 4 of the Police Sub-Inspector (Recruitment) Rules, 1995
provides a quota of 25% for promotion through the Local Departmental
Examination. The appointment of 636 additional candidates would have
the effect of distorting the quota of 25% prescribed by Rule 4, and curtail
the future promotion opportunities of candidates who had either failed in
the LDCE-2016, or who were not eligible on account of age, experience
and educational qualification. The denial of promotional avenues to the
Petitioners in the foreseeable future would be violative of Articles 14
and 16 of the Constitution of India.
The Maharashtra Administrative Tribunal vide interim Order dated
18.10.2019 directed that Status Quo be maintained with respect to the
636 additional candidates whose list was appended to the Government
Resolution. This Order was passed on the basis of an earlier Order
dated 01.08.2019 passed by the Principal Bench of the Tribunal in O.A.
No. 445 of 2019.
9. Respondents No. 5 and 6 herein filed Misc. Application No.545
of 2019 to vacate the interim Order of status quo dated 18.10.2019,
wherein it was prayed that a direction be given to the State to proceed
with the implementation of G.R. dated 22.04.2019.
10. The Maharashtra Administrative Tribunal vide Order dated
30.11.2019 vacated the interim Order dated 18.10.2019 on the ground
that two of the Petitioners had appeared in the LDCE exam, but failed
to qualifyin the said examination; whilst the other Petitioners had not
participated in the exam. It was also held that the Petitioners had failed
to implead the 636 additional candidates who were directed to be appointed
under the impugned G.R., and were necessary parties to be impleaded in
the O.A. Reliance was placed on the Order passed by the Bombay
High Court in W.P. No. 3555/2019 Nivrathi Venkatrao Gitte v. State of
Maharashtra,wherein the same G.R. dated 22.04.2019 had been
challenged. The High Court had directed that the process of selection
may proceed, but would be subject to the results of the Writ Petition.
11. Aggrieved by the Order dated 30.11.2019, the Original
Applicants / Petitioners herein filed W.P. No. 15045 of 2019 before the
Bombay High Court, Aurangabad Bench.
GAJANAN BABULAL BANSODE & ORS. v. STATE OF
MAHARASHTRA & ORS. [INDU MALHOTRA, J.]
A
B
C
D
E
F
G
H
484
SUPREME COURT REPORTS
[2021] 1 S.C.R.
The Bombay High Court rejected the Writ Petition, and the prayer
to maintain status quo with respect to the 636 additional candidates
who were directed to be appointed.The High Court declined to determine
whether the G.R. dated 22.04.2019 had been issued in extraordinary
circumstances as provided by Rule 5, since the O.A. was pending
adjudication before the Tribunal. The High Court however 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,so that prior to the posting /
appointment orders being issued in favour of the additional candidates,
the O.A. would be decided.
12. We have heard Mr. Vinay Navare, Senior Advocate for the
Appellants, Mr. Sachin Patil, Advocate-on-record for the RespondentState of Maharashtra, Mr. Ravindra Adsure for the Caveators, and Mr.
R. Basant, Senior Advocate and Mr. M. N. Rao, Senior Advocate for
the Intervenors.With the consent of parties, we are disposing of the
Appeal at the admission stage.
13. Article 320(3)(a) of the Constitution of India provides that the
Union Public Service Commission, or the State Public Service
Commission shall be consulted on all matters relating to methods of
recruitment to civil services, and for civil posts.
In the present case, we find that the State of Maharashtra has
issued the impugned G.R. dated 22.04.2019, without any consultation or
prior approval by the MPSC, which is evident from the letter dated
11.07.2019 issued by the MPSC to the Government, expressing its
disapproval of the decision taken by the Government unilaterally to make
these appointments without any consultation.
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
consultation 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 only in rare and exceptional circumstances.
A
B
C
D
E
F
G
H
485
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.
16. The Tribunal has vacated the Order of status quo dated
18.10.2019, on the ground that two of the Applicants had participated in
the examination, but failed to qualify.
This could not be a justifiable ground to vacate the interim Order,
since the promotional prospects of the Petitioners would be seriously
prejudiced, since a block of 636 additional candidates would be appointed
as Police Sub-Inspectors over and above the Applicants.
17. The other ground on which the Tribunal has vacated the Interim
Order is stated in para 17 of the Order that the Applicants had not
challenged the G.R. dated 22.4.2019.
This is an erroneous observation which would be evident from
the prayers in the O.A. which are set out hereunder for ready reference:-
"(A) Original Application may kindly be allowed by directing the
Respondents to undertake recruitment strictly as per PSI
Recruitment Rules, 1995, without any deviation therefrom
(B) The recruitment by promotion of as many as 636 candidates
sought to be made vide Govt. Resolution dated 22.4.2019, may
kindly be quashed and set aside, the same being contrary to
Recruitment Rules as well as binding precedent of the Hon'ble
Apex Court.
€ Pending hearing and final disposal of this Application, the
Respondents No.1 to 3 may kindly be directed not to take any
further action in furtherance of the impugned Govt. Resolution
dated 22.4.2019.
(D) Pending hearing and final disposal of this Application, the
Respondents No.1 to may kindly be directed to maintain status
quo in respect of 636 candidates sought to be appointed by
promotion, under the Impugned Govt. Resolution dated 22.4.2019.
GAJANAN BABULAL BANSODE & ORS. v. STATE OF
MAHARASHTRA & ORS. [INDU MALHOTRA, J.]
A
B
C
D
E
F
G
H
486
SUPREME COURT REPORTS
[2021] 1 S.C.R.
€ Any other suitable and equitable relief to which applicants are
entitled to and this Hon'ble Tribunal deems appropriate, may kindly
be granted in their favour."
(emphasis supplied)
In view thereof, the said observation cannot be a ground for
vacating the interim order of stay granted vide Order dated 18.10.2019.
18. The third ground on which the Tribunal has vacated the Interim
Order was that in similar O.As challenging the same G.R. dated
22.4.2019, including O.A. No. 455 of 2019 filed before the Principal
Bench, the Applicants in those cases had withdrawn their respective
cases, since they were desirous of pursuing their representations with
the State Government.
This could also not be a justifiable ground for vacating the Order
of status quo merely because other parties had chosen to withdraw
their O.A. for their own reasons.
19. We find that the High Court in the present Writ Petition has
issued a direction to the State to send the additional list of 636 candidates
for training of 9 months during the pendency of proceedings before the
Tribunal.
We are of the view that such a direction ought not to have been
passed in the Writ Petition filed by the present Petitioners, who are
aggrieved by the impugned Government Resolution No. Police -1818/
File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge.
20. In view of the discussion hereinabove, we allow the present
Civil Appeal, and direct that Government Resolution No. Police -1818/
File 355/Pol 5A dated 22.4.2019 will remain stayed during the pendency
of proceedings before the Maharashtra Administrative Tribunal.
We set aside the Order dated 30.11.2019passed by the
Maharashtra Administrative Tribunal which vacated the interim Order
18.10.2019, and the Order dated 06.03.2020 passed by the Bombay High
Court in W.P. No. 15045 / 2019.
21. We direct the Maharashtra Administrative Tribunal, Nagpur
Bench to decide the pending O.A. within a period of six months from
the date of receipt of this Order. The Tribunal will ensure that the
additional 636 candidates are given notice of the pending O.A. through
A
B
C
D
E
F
G
H
487
the State, to enable them to appear and participate in the proceedings.
The Tribunal is further directed to club all pending Original Applications
challenging the impugned Government Resolution No. Police -1818/ File
355/Pol 5A, and pass a common Judgment in these cases.
There will be no order as to costs.
Pending applications, if any, are accordingly disposed of.
Devika Gujral
Appeal allowed.
GAJANAN BABULAL BANSODE & ORS. v. STATE OF
MAHARASHTRA & ORS. [INDU MALHOTRA, J.]