# VISHAL ASHOK THORAT AND ORS v. RAJESH SHRIRAMBAPU FATE & ORS

- **Citation:** [2019] 9 S.C.R. 628
- **Court:** Supreme Court of India
- **Decided:** 2019-07-19
- **Case number:** Civil Appeal No. 5444 of 2019
- **Bench:** Ashok Bhushan, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vishal-ashok-thorat-and-ors-v-rajesh-shrirambapu-fate-ors-34284
- **Pages:** 25

## Headnote

Service Law:
Assistant Inspector of Motor Vehicles, Group-C in Motor
Vehicles Department (Recruitment) Rules, 2016 - rr. 3(iii), (iv) and
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
 [2019] 9 S.C.R. 628
628
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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 categoric

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SUPREME COURT REPORTS
[2019] 9 S.C.R.
VISHAL ASHOK THORAT AND ORS.
v.
RAJESH SHRIRAMBAPU FATE & ORS.
(Civil Appeal No. 5444 of 2019)
JULY 19, 2019.
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Service Law:
Assistant Inspector of Motor Vehicles, Group-C in Motor
Vehicles Department (Recruitment) Rules, 2016 - rr. 3(iii), (iv) and
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
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628
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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
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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]
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631
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 petitionerrespondent 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
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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.
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Case Law Reference
[1963] Suppl. SCR 676
referred to
Para 33
[2010] 7 SCR 289
referred to
Para 34
[1983] 2 SCR 936
held inapplicable
Para 36
[2012] 10 SCR 994
referred to
Para 38
CIVIL APPELLATE JURISDICTION : Civil Appela No. 5444
of 2019.
From the Judgment and Order dated 28.09.2018 of the High Court
of Judicature at Bombay, Bench at Nagpur in Writ Petition No.1270 of
2018.
With
Civil Appeal Nos. 5445, 5446 of 2019.
Dr. Abhishek Manu Singvi, Paramjit Singh Patwalia, Jayant
Bhushan, Shekhar Naphade, P. S. Narasimha, Sr. Advs., Ravindra
Keshavrao Adsure, Sagar N. Pahune-Patil, Ms. Natasha Dalmia,
Ms. Harshikha Verma, Dhruv Sheoran, Prasenjit Keswani, Nishant
Ramakantrao Katneshwarkar, Arvind S. Avhad, Abhishek Krishna,
Yogesh Kumar, Sanjay Kharde, Samrat Shinde, Ms. S. Lakshmi Iyer,
R. L. Khapre, Rishi Jain, Upmanyu Tewari, Tushar Bhushan, Sandeep
Sudhakar Deshmukh, Vasim Siddiqui, Vishaal Jogdang, Debasis Misra,
K. Subbarao, H. Chandra Sekhar, Ms. Rekha Chandra Sekhar, Rahul G.
Tarwani, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. All these appeals have been filed against the common judgment
dated 28.09.2018 of the Bombay High Court, Bench at Nagpur in W.P.No.
1270 of 2018 filed by Rajesh Shrirambapu Fate, respondent no.1 in these
appeals by which judgment the High Court has partly allowed the writ
petition of respondent no.1.
2. We may first notice the facts and events leading to filing of
these appeals.
3. In transport Department of the State of Maharashtra there
were posts of Assistant Inspector of Motor Vehicles, Group-C. Under
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proviso to Article 309, Governor of Maharashtra by notification dated
23.12.2016 framed the Rules namely "Assistant Inspector of Motor
Vehicles, Group-C in Motor Vehicles Department (Recruitment) Rules
2016" (hereinafter referred to as "Rules, 2016").
4. The State government sent a requisition on 29.12.2016 to
Maharashtra Public Service Commission (hereinafter referred to as
MPSC) for conducting examinations. MPSC issued advertisement no. 2
of 2017 dated 30.01.2017 inviting online applications for 188 posts of
Assistant Motor Vehicles Inspector Group-C for which Preliminary
Examination was to take place on 30.04.2017 and Main Examination of
eligible candidate was likely to be held on 06.08.2017. The State
government had sent further requisition for additional 670 posts. MPSC
issued a declaration notifying 858 posts which subsequently reduced to
833 posts. Relevant examination was conducted on 30.04.2017 in which
more than 69,000 candidates participated.
5. On 30.06.2017, result of preliminary exam was declared in
which 9,870 candidates were declared qualified for the Mains
examination. On 01.07.2017, MPSC issued advertisement no.48 of 2017
for Main examination which was conducted on 06.08.2017. Writ Petition
No.7329 of 2017 was filed by respondent No.1 challenging only the
Rules, 2016 which petition was disposed of by the High Court on
13.11.2017 granting leave to writ petitioner to make appropriate
representation to the State Government. The State Government was
directed to take suitable decision in the next two months. The State
Government vide order dated 01.02.2018 rejected the representation of
respondent No.1. The MPSC declared the final result of examination
publishing a select list of 832 candidates on 31.03.2018. On 07.05.2018,
MPSC recommended 832 candidates to the State Government for
appointment State Government on 15.05.2018 directed Transport
Commissioner to take further steps for 832 selected candidates. On
05.06.2018, Transport Commissioner asked selected candidates to come
for verification of documents.
6. The respondent No.1 filed a second Writ Petition No. 1270 of
2018 challenging only Rules, 2016 in which writ petition, petitioner filed
an amendment application praying for quashing of the advertisements
dated 30.01.2017 and 01.07.2017 as well as list of selected candidates
which amendment application was allowed by the High Court on
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13.04.2018. The High Court on 12.06.2018 had passed an interim order
for maintaining status quo.
7. Apart from writ petition filed by the respondent no.1 challenging
the Rules and subsequently the advertisement, there had been several
challenges before the Maharashtra Administrative Tribunal as well as
the High Court pertaining to 2016 Rules and the Advertisement no. 2 of
2017 and 48 of 2017.
8. Before the Maharashtra Administrative Tribunal Rules, 2016
were challenged by Manoj Chavahan by filing O.A. No.615 of 2017,
which was dismissed on 06.12.2017 repelling the challenge to the Rules.
Several other O.As. filed before Maharashtra State Administrative
Tribunal were also dismissed on 06.12.2017. One O.A. No. 481 of 2018
filed by Ajitpalsingh Nirmalsingh Khalsa was also dismissed on 06.12.2017
against which Writ Petition No.8179 of 2017 filed by Ajitpalsingh
Nirmalsingh Khalsa which was also dismissed by the High Court on
18.01.2018 and SLP No. 3452 of 2018 challenging the judgment dated
18.01.2018 of the High Court was dismissed by this Court on 09.02.2018.
Writ Petition No.7685 of 2017, Dinesh Kisanrao Sawarkar versus State
of Maharashtra was also dismissed by the High Court on 17.01.2018
against which SLP No.13258 of 2018 was dismissed on 04.05.2018. In
Writ Petition filed by the respondent No.1, i.e., 1270 of 2018 both State
Government as well as MPSC filed counter affidavits. Respondent Nos.4
to 22 in Civil Appeal of Vishal Ashok Thorat had filed application for
impleadment in Writ Petition No.1270 of 2018 along with the counter
affidavit, which applications were allowed by the High Court. The High
Court vide its judgment dated 28.09.2018 partly allowed the writ petition.
The High Court although held that writ petitioner, i.e., respondent No.1
cannot be permitted to challenge the advertisements dated 30.01.2017
and 01.07.2017 but the High Court set aside the Proviso at the end of
Rule 3(iii) and Rule 3(iv) and also Rule 4 of Rules, 2016. The High Court
ultimately directed the respondent to choose and select only those persons,
who had participated in the selection process and who fulfilled the
requirement of practical experiences and driving licences as per the
qualifications prescribed by the Central Government, i.e., as per
substantive part of Rule 3(iii) and Rule 3(iv) of Rules, 2016.
9. Civil Appeal No.5444 of 2019 has been filed by Vishal Ashok
Thorat and 545 other candidates, whose names are included in the select
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list of 832 candidates. These selected candidates were not made parties
to the Writ Petition No.1270 of 2018 before the High Court.
10. Civil Appeal No.5446 of 2019 has been filed by the State of
Maharashtra aggrieved against the judgment of the High Court dated
28.09.2018. In the appeal, several grounds have been taken by the State
of Maharashtra challenging the judgment dated 28.09.2018.
11. Civil Appeal No.5445 of 2019, Abhijit Appasaheb Vasagade
and 11 other candidates are appellants, who were included in the select
list of 832 candidates and who got themselves impleaded in W.P. No.1270
of 2018 before the High Court. These appellants also aggrieved by the
judgment of the High Court dated 28.09.2018 have filed the appeal
challenging judgment on various grounds.
12. In these appeals, we have heard Dr. Abhishek Manu Singvi,
Shri Jayant Bhushan and Mr. Paramjit Singh Patwalia, Senior Advocates
for the appellant. Shri Shekhar Naphade, Senior Advocate has appeared
for respondent No.1. Shri P.S. Narasimha, learned senior Advocate has
been heard for the applicants, who had prayed for intervention. We have
also heard other learned counsel in support of the appeals.
13. Learned Counsel for the appellant in Civil Appeal of Vishal
Ashok Thorat has led the arguments. He submitted that the writ petition
filed by the respondent No.1 ought to have been dismissed on laches
and on conduct. It is submitted that the respondent No.1 has no locus to
challenge the recruitment of Assistant Motor Vehicles Inspector. The
respondent No.1 in his earlier writ petition being W.P.No.729 of 2017
having not challenged the advertisement Nos.2 of 2017 and 48 of 2017,
he cannot be allowed to challenge the same in W.P. No.1270 of 2018 by
allowing the amendment application.
14. It is submitted that the respondent No.1 in pursuance of
advertisements cannot be said to be aggrieved by the recruitment. It is
submitted that the amendment in W.P. No.1270 of 2018 was filed by the
respondent No.1 only when the result was declared on 31.03.2018. It is
submitted that one nephew of respondent No.1 had also applied in
pursuance of advertisement and could not be selected in the result dated
31.03.2018, hence the respondent No.1 thereafter sought to challenge
the advertisement, which challenge ought to have been rejected by the
High Court. It is submitted that High Court having returned the finding in
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paragraph 48 of the impugned judgment that writ petition cannot be
permitted to challenge the advertisements dated 30.01.2017 and
01.07.2017, it ought not to have issued direction in paragraph 51 which is
nothing but indirectly entertaining the challenge to the advertisement
which could not have been directly entertained.
15. It is submitted that Rule 3 of Rules, 2016 fully complies with
the notification of the Central government dated 12.06.1989 issued under
Section 213(4) of Motor Vehicles Act, 1988. The substantive part of
Rule 3 is fully in consonance with qualifications prescribed by notification
dated 12.06.1989. The State government by Proviso in Rule (iii) and
Rule 3(iv) has given only breathing time to those candidates who does
not fulfill qualification to obtain it during the probation period, which cannot
be said to be contrary to notification dated 12.06.1989.
16. It is further submitted that by subsequent notification dated
08.03.2019 of the Central Government, the notification dated 12.06.1989
has been substituted. Now the requirement of notification dated
12.06.1989 is no longer in continuance. The State is free to make
appointment of the selected candidates.
17. It is further submitted that six writ petitions were already
dismissed by the High Court, where the whole recruitment process was
under challenge. Three Special Leave Petitions were filed against the
judgment of the High Court which too were dismissed by this Court. It is
submitted that respondent No.1, who was writ petitioner in Writ Petition
No.1270 of 2018, had not impleaded any selected candidates, hence, no
direction could be issued by the High Court with regard to select list
dated 31.03.2018. It is further submitted that Section 213 of the Motor
Vehicles Act prohibits appointment of candidates, who do not fulfill the
qualifications as notified by the Central Government. None of the selected
candidates having been appointed and the notification dated 12.06.1989
being not in operation, there is no impediment in appointment of the
selected candidates who fulfill the qualifications, which are prescribed
as on date. It is submitted that proviso to Rule 3(iii) and Rule 3(iv) is not
contradictory to notification dated 12.06.1989 but is in harmony. The
High Court ought to have dismissed the writ petition denying relief to the
respondent No.1 who was writ petitioner in the facts of the present
case. In the facts and circumstances of the present case the respondent
No.1 has no locus to challenge the recruitment and selection.
VISHAL ASHOK THORAT v. RAJESH SHRIRAMBAPU FATE
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18. In support of the appeal filed by the State of Maharashtra,
learned senior counsel submits that respondent No.1 had no locus to file
a writ petition, he having not participated. It is submitted that provisos to
Rule 3(iii) and Rule 3(iv) of Rules, 2016 do not at all lower minimum
qualification prescribed by Central Government vide notification dated
12.06.1989, but it merely gives breathing period of two years (before
completion of probation period) to selected candidates to gain experience
of one year and driving licence. It is submitted that direction in paragraph
51 of the judgment cannot be complied as on date, in view of fact that
notification of the Central Government dated 12.06.1989, is no longer in
operation. Rules,2016 do not change the minimum qualification which is
same as provided in substantive provision of Rule 3 and proviso carves
out only an exception giving some time to acquire the qualification during
the probation period by which provision the zone of consideration has
been enlarged enabling the more meritorious candidates to apply for the
post. The High Court committed error in treating the writ petition filed
by the respondent as Public Interest Litigation whereas in the service
matters no Public Interest Litigation can be entertained.
19. It is further submitted that if only the qualification mentioned
in the notification dated 12.06.1989 is adhered to, there are only 25
candidates in the entire list of selected candidates who shall be available
for appointment leaving almost all the posts of Assistant Inspector of
Motor Vehicles vacant which is not in the interest of the State. The
Court should take into consideration the subsequent events. The
notification dated 08.03.2019 issued by the Central Government is
important subsequent event, which has knocked out the very basis of
the judgment of the High Court.
20. It is further contended that it is the State, which has legislative
competence with regard to the State Public Services Commission under
Entry 41 List II of the Seventh Schedule of the Constitution of India.
Thus, the State was fully empowered to make Rules providing for
recruitment to the post of Assistant Inspector of Motor Vehicles.
21. Learned senior counsel appearing for the appellants in the
appeal filed by Abhijit Appasaheb Vasagade and others has adopted the
submissions made in appeal filed by Vishal Ashok Thorat and others. It
is further submitted that respondent No.1 in his earlier Writ Petition
No.7239 of 2017 having not challenged the advertisement Nos. 2 of
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2017 and 48 of 2017 had given up the right to challenge these
advertisements, hence, he has no right to challenge these advertisements
in his second Writ Petition No.1270 of 2018. The appellants who are
included in the list of 832 selected candidates grinded for two years and
9 months and at the instance of respondent No.1 selection could not
have been interfered with by the High Court. Respondent No.1 is legally
estopped from challenging the selection process.
22. In Seventh Schedule, List III (concurrent list) Entry 35 provides
for "Mechanically propelled vehicles including the principles on which
taxes on such vehicles are to be levied" which Entry does not empower
the Central Government to prescribe minimum qualification for Assistant
Inspector of Motor Vehicles. The notification dated 12.06.1989 cannot
be benchmarked to test constitutional validity of provisos to Rule 3(iii),
Rule 3(iv) and Rule 4 of Rules, 2016.
23. Shri Shekhar Naphade, learned senior counsel appearing for
respondent No.1 refuting the submissions of the counsel for the appellants
submits that respondent No.1 is qualified for the post of Assistant
Inspector of Motor Vehicles and had jurisdiction to challenge the Rules,
2016. There is no delay on the part of the writ petitioner i.e. respondent
No.1 in challenging Rules, 2016. Rule 3(iii) and Rule 3(iv) of Rules, 2016
diluted the minimum qualification as prescribed by the Central
Government by its notification dated 12.06.1989. The State cannot appoint
a person who does not fulfil the minimum qualification. The appointment
of such person even on probation is neither in the public interest nor in
the interest of public exchequer. Disqualified person cannot be allowed
by the State to get salary even though when they are not discharging the
duty of Assistant Inspector of Motor Vehicles. The High Court could not
be a mute spectator in a situation where the State has framed Rules for
appointment of a person who does not fulfil the qualification. No error
has been committed by the High Court in setting aside Rule 3(iii), Rule
3(iv)and Rule 4 of the Rules, 2016. Many selected candidates were
added in the writ petition even though on their own instance and were
heard by the High Court hence it cannot be said that selected candidates
were not heard by the High Court. The notification dated 08.03.2019 by
which the Central Government has now substituted earlier notification
dated 12.06.1989 is not applicable in the present case. Since, the entire
process of recruitment has been completed during currency of notification
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dated 12.06.1989. The notification dated 01.08.2016 by the Government
of India as relied by the appellant has never been published in the Gazette.
24. We have heard the learned counsel for the parties and perused
the records.
25. We may first notice the Rule 3 and Rule 4 of Rules, 2016
framed by the State of Maharashtra which were subject matter of
consideration by the High Court. Rules, 2016 were framed in exercise
of power conferred by the proviso to Article 309 of the Constitution in
supersession of all existing Rules. Rule 3 and Rule 4 which are relevant
in the present case are as follows:
"3. Appointment to the post of Assistant Inspector of Motor
Vehicles Group 'C' in Motor Vehicle Department, shall be made
by nomination on the basis of the result of a competitive examination
held by the Commission from amongst the following candidates
who,-
(i)
...
...
...
...
(ii)
...
...
...
...
(iii)
possess practical experience of repairing and
maintenance of light motor vehicles, heavy goods vehicles
and heavy passenger vehicles, for a period of not less
than one year gained after acquiring the qualifications
mentioned in clause (ii), in workshop run by a Central or
State Government undertaking or Department or in a
institution recognized by Government from time to time.
The experience as trainee or apprentice shall be counted
towards requisite experience:
Provided that, if a person not possessing practical
experience of one year as above on the last date of
submission of application for admission to the competitive
examination held by Commission shall obtain such
experience before completion of the period of probation
in workshop run by a Government undertaking or
Department or in a institution recognized by Government,
from time to time; and
(iv)
Possess a valid driving license authorizing him to drive
motor cycle with gears, light motor vehicles and transport
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vehicles, (heavy good vehicles and heavy passenger
vehicles) issued by the Competent Authority on the last
date of submission of the application for the admission to
the competitive examination held by the Commission;
Provided that, if a person not holding a valid license for
heavy goods vehicles or heavy passenger vehicles, as
the case may be, or both heavy good vehicles and heavy
passenger vehicles on the last date of submission of
application for admission to the competitive examination
held by the Commission, shall obtain such driving license
before completion of the period of probation, failing which,
he shall be liable to be discharged from the service.
He shall renew the driving license from time to time,
without break; and
(v)
...
...
...
...
(vi)
...
...
...
...
(vii) ...
...
...
...
4. A person appointed to the post of Assistant Motor Vehicles
Inspector shall not perform the duty and responsibility of the said
post till he gains and acquires the prescribed experience and driving
license within probation period as mentioned in proviso to clause
(iii) and clause (iv) of Rule 3."
26. Section 213 sub-section (4) of Motor Vehicles Act, 1988
provides for:
"Section 213(4) The Central Government may, having regard to
the objects of the Act, by notification in the Official Gazette,
prescribe the minimum qualifications which the said officers or
any class thereof shall possess for being appointed as such."
27. Notification dated 12.06.1989 has been issued by the Central
Government in exercise of its power under Section 213(4) of Motor
Vehicles Act provides as follows:
"GOVERNMENT OF INDIA
NOTIFICATION
SO 443(E), dated 12.6.1989: In exercise of the powers conferred
by Sub-Section (4) of Section 213 of the Motor Vehicles Act,
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1988 (59 of 1988), the Central Government hereby prescribed
that the minimum qualification for the class of officers consisting
of the category of Inspector of Motor Vehicles or Assistant
Inspector of Motor Vehicles by whatever names called shall be
as under:-
(1)
Minimum general educational qualification of a pass in X
standard; and
(2)
A diploma in Automobile Engineering (3-year course of a
diploma in Mechanical Engineering awarded by the State
Board of Technical Education (3 years course); and
(3)
Working experience of at least one year in a reputed
automobile workshop which undertakes repairs of both light
motor vehicles, heavy goods vehicles and heavy passenger
motor vehicles fitted with petrol and diesel engine; and
(4)
Must hold a driving licence authorising him to drive motor
cycle, heavy goods vehicles and heavy passenger motor
vehicles.
2.
...
...
...
...
3.
...
...
...
..."
28. Reverting to the facts of the present case the MPSC issued
the Advertisement dated 30.01.2017 (Advertisement No. 2 of 2017) for
filling up the posts of Assistant Inspector of Motor Vehicles. In pursuance
of which preliminary examination was held on 30.04.2017, the result of
which was declared on 30.06.2017 and main examination was also held
on 06.08.2017. Much after holding of the above examinations, respondent
No.1 filed Writ Petition No.7239 of 2017 wherein there was no challenge
to the advertisement Nos.2 of 2017 and 48 of 2017 (for main examination).
Only challenge raised by respondent No.1 was to the Rules, 2016. The
writ petition was disposed of on 13.11.2017 giving liberty to make
representation in the matter to the State. The State rejected the
representation of respondent No.1 referring to order of Maharashtra
Administrative Tribunal where similar challenge to the Rules was rejected.
Writ Petition No.1270 of 2018 was filed by respondent No.1 on 27.02.2018
wherein he again only challenged the Recruitment Rules, 2016. The
result of main examination held on 06.08.2017 for 633 posts of Assistant
Inspector of Motor Vehicles was declared on 31.03.2018. It was
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thereafter when respondent No.1 filed application for amendment on
13.04.2018 which was allowed by the High Court. It is useful to refer to
the amended prayers which were added in Writ Petition No.1270 of
2018, which are to the following effect:
"iii-a) By way of appropriate writ, order or direction, hold and
declare that he preliminary advertisement dated 30.01.2017 and
main advertisement dated 01.07.2017 issued by Respondent No.2
in pursuance to the Notification issued by Respondent on
23.12.2016, as ultra-virus, arbitrary, unreasonable and illegal and
also direct that the entire recruitment process undertaken pursuant
to said Recruitment Rules, dated 23.12.2016 be quashed and set
aside.
iii-b) By way of appropriate writ, order or direction, hold and declare
that, the select list published on dated 31.03.2017 vide AnnexureXII in pursuance to the preliminary advertisement dated 30.01.2017
and main advertisement dated 01.07.2017 issued by M.P.S.C. in
pursuance to the Notification issued by Respondent on 23.12.2016,
as ultra-virus, arbitrary, unreasonable and illegal.
iii-c)By further order, direction, writ direct Respondent to issue
fresh advertisement in accordance with rules prescribed by the
Central Government in that behalf by Notification dated 12.06.1989
and to carry out fresh process of selection in pursuance to that
fresh advertisement be issued in accordance with the rules
prescribed by the Central Government in that behalf by Notification
dated 12.06.1989."
29. The High Court, thus, 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.
30. 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
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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. In paragraph 48 of
the judgment following was held:
"48. When petitioner has not challenged the advertisement in Writ
Petition No.7239 of 2017, this Writ Petition cannot be viewed
independent of order dated 13.11.2017 in earlier Writ Petition.
Preliminary advertisement and main advertisement were all issued
before Writ Petition No.7239/2017 was filed in High Court on
31.10.2017. We, therefore, do not find it necessary to delve into
various judgments mentioned supra. It follows that the petitioner
cannot be permitted to challenge the advertisements dated
30.01.2017 and 01.07.2017. However, that does not preclude him
from challenging the dilution in qualifications effected by the State
Government for recruitment as per 2016 Rules for the post of
Assistant Inspector of Motor Vehicles. He is a citizen and also
qualified, as per norms prescribed by the Central Government to
compete for it."
31. 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, we failed to appreciate 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 High Court in paragraph 51 of the judgment has issued following
direction:
"51. Consequently, we direct respondents to choose and select
from the aspirants who have participated in selection process,
only such candidates who fulfill the requirements of practical
experience and driving licence, as per the qualification prescribed
by the Central Government i.e. as per substantive part of Rule
3(iii) and Rule 3(iv) of 2016 Rules."
32. The direction in paragraph 51 of the impugned judgment clearly
directed the select list to be re-drawn by including only those candidates
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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 in paragraph 51 to modify the select list dated
31.03.2018.
33. One more submission raised by the learned counsel for the
appellant in civil appeal filed by Vishal Ashok Thorat needs to be noticed.
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.