VISHAL ASHOK THORAT AND ORS. versus RAJESH SHRIRAMBAPU FATE & ORS.

[2019] 9 S.C.R. 628

[2019] 9 S.C.R.

VISHAL ASHOK THORAT AND ORS.

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 MotorCVehicles Department (Recruitment) Rules, 2016 – rr. 3(iii), (iv) and4 – Post of Assistant Inspector of Motor Vehicles, Group-C –Advertisement Nos. 2 of 2017 and 48 of 2017 inviting applicationsfor the posts – Selection of 832 candidates and inclusion in theselection list – Writ petition by respondent no. 1 challenging 2016,Rules – Disposed of, giving liberty to make representation to theDState, which was rejected – Filing of second writ petition byrespondent no.1 challenging only 2016 Rules in which respondentfiled amendment application seeking quashing of advertisementsas well as list of selected candidates which was allowed – HighCourt though held that respondent No.1 cannot be permitted toEchallenge the advertisements but set aside the proviso to r. 3(iii)and 3(iv) and r. 4 and issued directions to choose and select onlythose who had participated in the selection process and fulfilledthe requirement as per the Rules – On appeal, held: When personis not permitted to challenge the advertisements and process ofrecruitment, the select list which is outcome of such recruitmentFprocess cannot be interfered at the instance of such person – HighCourt erred in issuing direction to modify the select list –Furthermore, the selected candidates whose names were alreadypublished ought to have impleaded – In absence of the same, theHigh Court erred in issuing direction to modify and review the selectGlist – By mere inclusion in the select list, there is no right ofappointment but the candidate is entitled for consideration of hisappointment, which could not have been denied without there beingany valid reason – Respondent No.1, who did not participate in theselection and the High Court had specifically rejected the entitlement

of the respondent No.1 to challenge the advertisement and selectlist, permitting him to challenge the validity of the Rules in referenceto the same advertisements is indirectly challenging something whichcould not be challenged directly by the respondent No.1 – Thus,when the respondent no. 1 was held not entitled to challenge theadvertisement, the proceeding to entertain the challenge to thevalidity of the Rules and to strike down the Rules and modifying theselect list was clearly impermissible – Thus, the High Court erred inissuing the directions and the order passed by the High Court is setaside.

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

Allowing the appeals, the Court

HELD: 1.1 The High Court permitted the respondent No.1to challenge the advertisement Nos.2 of 2017 and 48 of 2017 andthe entire recruitment process undertaken thereunder.Respondent No.1 was also permitted to challenge the select listdated 31.03.2018. Respondent No.1 in his writ petition sought tochallenge advertisements only on 13.04.2018 whereasadvertisement for preliminary examination was first issued on30.01.2017. Admittedly, respondent No.1 never applied againstthe advertisement to participate in the recruitment for the postof Assistant Inspector of Motor Vehicles. The High Courtalthough has permitted respondent No.1 to amend the prayer inthe writ petition by including challenge to the advertisements aswell as challenge to the select list but in the impugned judgmentthe High Court has categorically held that respondent No.1 cannotbe allowed to challenge the advertisements dated 30.01.2017 and

A01.07.2017. The High Court in paragraph 48 of its judgment hasclearly held that writ petitioner cannot be permitted to challengethe advertisements dated 30.01.2017 and 01.07.2017. When theHigh Court held that respondent No.1 could not be permitted tochallenge the advertisements dated 30.01.2017 and 01.07.2017,it cannot be appreciated that how the High Court could haveBinterfered with the select list of 832 candidates, which wasprepared after preliminary examination and main examination inpursuance to the advertisements dated 30.01.2017 and01.07.2017. When respondent No.1 was not allowed to challengethe advertisements, tinkering with the select list by the HighCCourt was impermissible and self– contradictory. The directionin paragraph 51 of the impugned judgment clearly directed theselect list to be re– drawn by including only those candidateswho fulfill the requirements of practical experience and drivinglicence as prescribed by the Central Government i.e. assubstantive part of Rule 3(iii) and Rule 3(iv) of Rules, 2016, whichDthe High Court could not do in view of its finding in paragraph 48of the judgment. When person is not permitted to challengethe advertisements and process of recruitment, the select listwhich is outcome of such recruitment process cannot be interferedat the instance of such person. The High Court, thus, clearlyEerred 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.1in his Writ Petition No.1270 of 2018 did not implead any of theselected candidates out of the list of 832. No selected candidateFhaving been impleaded by respondent No.1, the High Court erredin issuing direction to modify and review the select list. Thedirection of the High Court is clearly against the interest of theappellants, who as per direction shall go out of the select list, theselect list having been published on 31.03.2018, i.e., much before

the date when respondent No.1 filed application for amendmentGin the writ petition for challenging the advertisement Nos.2 of2017 and 48 of 2017, he ought to have impleaded the selectedcandidates whose names were already published by the MPSC.Respondent No.1 without bringing the selected candidates onrecord could not have obtained any order adverse to the selectedHcandidates. [Para 33] [645-C-E]

Udit Narain Singh, Malpatharia v. Additional MemberBoard of Revenue, Bihar and another AIR 1963 SC786 : [1963] Suppl. SCR 676 ; Public ServiceCommission, Uttaranchal v. Mamta Bisht and others(2010) 12 SCC 204 : [2010] 7 SCR 289 – referred to.

1.3 The present is case of recruitment and selection, whereafter participation in the selection process, 832 candidates werefinally selected and were included in the select list. By inclusionin the select list, the selected candidate had acquired right ofconsideration for appointment, which could not have been takenaway in the writ petition filed by respondent No.1, where he couldnot 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 listthe candidate is entitled for consideration for his appointment,which could not have been denied without there being any validreason. Thus, the High Court could not have modified the selectlist without the selected candidates, whose interest wasjeopardized by the High Court being impleaded in the writ petition.Thus, directions issued by the High Court are not sustainablealso in view of the fact that respondent No.1 had not impleadedthe 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 tochallenge the advertisement Nos.2 of 2017 and 48 of 2017, theHigh Court committed error in proceeding to examine the validityof the Rules, 2016. The challenge to Rules, 2016 in the backgroundof the instant case ought not to have been allowed to be raised atthe instance of the writ petitioner. The respondent No.1, who didnot participate in the selection and the High Court had specificallyrejected the entitlement of the respondent No.1 to challenge theadvertisement Nos.2 of 2017 and 48 of 2017, as held in thejudgment, permitting him to challenge the validity of the Rulesin reference to the same advertisements is nothing but indirectlychallenging something which could not be challenged directly bythe respondent No.1. The High Court in the facts of the instant

Acase, where respondent No.1 was not allowed to challenge theadvertisements or the select list should not have been allowedto challenge the Rules, 2016 in so far as the selection in questionwas concerned. The writ petition filed by respondent No.1 wasnot styled or framed as PIL. It is well settled that with regard toservice jurisprudence, PIL are not entertained. [Para 38]B[650-D-G]

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

C1.6 perusal of the impugned judgment indicates that theHigh Court was influenced by the submission of the appellantthat loss being caused to the public revenue by appointment ofAssistant Inspector of Motor Vehicles, who did not fulfillqualification as laid down in notification dated 12.06.1989, theHigh Court has virtually entertained the writ petition as PIL.DFollowing observations made by the High Court clearly indicatethat the High Court proceeded to treat the writ petition as PIL,although, it relates to condition of service of Assistant Inspectorof Motor Vehicles. [Para 39] [651-B-C]

1.7 The High Court ought not to have entertained the writEpetition, in which challenge was to the Rules, 2016, which wereclearly in reference to recruitment under advertisement Nos.2of 2017 and 48 of 2017. When the respondent No.1-writ petitionerwas held not entitled to challenge the advertisement at hisinstance, proceeding to entertain the challenge to the validity ofFthe Rules and to strike down the Rules and modifying the selectlist dated 31.03.2018 was clearly impermissible. The High Court,thus, fell in error in issuing the directions. Also, it was notnecessary for the High Court to enter into the validity of Rule3(iii), Rule 3(iv) and Rule 4 of the Rules, 2016. The judgment ofthe Division Bench of the High Court is set aside and the writGpetition is dismissed. [Paras 40 and 42] [651-D-G; 652-B-C]

A. Janardhana vs. Union of India and others (1983) 3SCC 601 : [1983] 2 SCR 936 – held inapplicable.

CIVIL APPELLATE JURISDICTION : Civil Appela No. 5444of 2019.

From the Judgment and Order dated 28.09.2018 of the High Courtof Judicature at Bombay, Bench at Nagpur in Writ Petition No.1270 of2018.

With

Civil Appeal Nos. 5445, 5446 of 2019.

Dr. Abhishek Manu Singvi, Paramjit Singh Patwalia, JayantBhushan, Shekhar Naphade, P. S. Narasimha, Sr. Advs., RavindraKeshavrao Adsure, Sagar N. Pahune-Patil, Ms. Natasha Dalmia,Ms. Harshikha Verma, Dhruv Sheoran, Prasenjit Keswani, NishantRamakantrao 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, SandeepSudhakar 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 judgmentdated 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 theseappeals by which judgment the High Court has partly allowed the writpetition of respondent no.1.

2. We may first notice the facts and events leading to filing ofthese appeals.

3. In transport Department of the State of Maharashtra therewere posts of Assistant Inspector of Motor Vehicles, Group-C. Under

Aproviso to Article 309, Governor of Maharashtra by notification dated23.12.2016 framed the Rules namely “Assistant Inspector of MotorVehicles, Group-C in Motor Vehicles Department (Recruitment) Rules2016” (hereinafter referred to as “Rules, 2016”).

4. The State government sent requisition on 29.12.2016 toBMaharashtra Public Service Commission (hereinafter referred to asMPSC) for conducting examinations. MPSC issued advertisement no. 2of 2017 dated 30.01.2017 inviting online applications for 188 posts ofAssistant Motor Vehicles Inspector Group-C for which PreliminaryExamination was to take place on 30.04.2017 and Main Examination ofeligible candidate was likely to be held on 06.08.2017. The StateCgovernment had sent further requisition for additional 670 posts. MPSCissued declaration notifying 858 posts which subsequently reduced to833 posts. Relevant examination was conducted on 30.04.2017 in whichmore than 69,000 candidates participated.

5. On 30.06.2017, result of preliminary exam was declared inDwhich 9,870 candidates were declared qualified for the Mainsexamination. On 01.07.2017, MPSC issued advertisement no.48 of 2017for Main examination which was conducted on 06.08.2017. Writ PetitionNo.7329 of 2017 was filed by respondent No.1 challenging only theRules, 2016 which petition was disposed of by the High Court onE13.11.2017 granting leave to writ petitioner to make appropriaterepresentation to the State Government. The State Government wasdirected to take suitable decision in the next two months. The StateGovernment vide order dated 01.02.2018 rejected the representation ofrespondent No.1. The MPSC declared the final result of examinationpublishing select list of 832 candidates on 31.03.2018. On 07.05.2018,FMPSC recommended 832 candidates to the State Government forappointment State Government on 15.05.2018 directed TransportCommissioner to take further steps for 832 selected candidates. On05.06.2018, Transport Commissioner asked selected candidates to comefor verification of documents.G6. The respondent No.1 filed second Writ Petition No. 1270 of2018 challenging only Rules, 2016 in which writ petition, petitioner filedan amendment application praying for quashing of the advertisementsdated 30.01.2017 and 01.07.2017 as well as list of selected candidateswhich amendment application was allowed by the High Court on

13.04.2018. The High Court on 12.06.2018 had passed an interim orderfor maintaining status quo.

7. Apart from writ petition filed by the respondent no.1 challengingthe Rules and subsequently the advertisement, there had been severalchallenges before the Maharashtra Administrative Tribunal as well asthe High Court pertaining to 2016 Rules and the Advertisement no. 2 of2017 and 48 of 2017.

8. Before the Maharashtra Administrative Tribunal Rules, 2016were 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 AdministrativeTribunal were also dismissed on 06.12.2017. One O.A. No. 481 of 2018filed by Ajitpalsingh Nirmalsingh Khalsa was also dismissed on 06.12.2017against which Writ Petition No.8179 of 2017 filed by AjitpalsinghNirmalsingh Khalsa which was also dismissed by the High Court on18.01.2018 and SLP No. 3452 of 2018 challenging the judgment dated18.01.2018 of the High Court was dismissed by this Court on 09.02.2018.Writ Petition No.7685 of 2017, Dinesh Kisanrao Sawarkar versus Stateof Maharashtra was also dismissed by the High Court on 17.01.2018against which SLP No.13258 of 2018 was dismissed on 04.05.2018. InWrit Petition filed by the respondent No.1, i.e., 1270 of 2018 both StateGovernment as well as MPSC filed counter affidavits. Respondent Nos.4to 22 in Civil Appeal of Vishal Ashok Thorat had filed application forimpleadment in Writ Petition No.1270 of 2018 along with the counteraffidavit, which applications were allowed by the High Court. The HighCourt vide its judgment dated 28.09.2018 partly allowed the writ petition.The High Court although held that writ petitioner, i.e., respondent No.1cannot be permitted to challenge the advertisements dated 30.01.2017and 01.07.2017 but the High Court set aside the Proviso at the end ofRule 3(iii) and Rule 3(iv) and also Rule 4 of Rules, 2016. The High Courtultimately directed the respondent to choose and select only those persons,who had participated in the selection process and who fulfilled therequirement of practical experiences and driving licences as per thequalifications prescribed by the Central Government, i.e., as persubstantive part of Rule 3(iii) and Rule 3(iv) of Rules, 2016.

9. Civil Appeal No.5444 of 2019 has been filed by Vishal AshokThorat and 545 other candidates, whose names are included in the select

EFG

Alist of 832 candidates. These selected candidates were not made partiesto the Writ Petition No.1270 of 2018 before the High Court.

10. Civil Appeal No.5446 of 2019 has been filed by the State ofMaharashtra aggrieved against the judgment of the High Court dated28.09.2018. In the appeal, several grounds have been taken by the StateBof Maharashtra challenging the judgment dated 28.09.2018.

11. Civil Appeal No.5445 of 2019, Abhijit Appasaheb Vasagadeand 11 other candidates are appellants, who were included in the selectlist of 832 candidates and who got themselves impleaded in W.P. No.1270of 2018 before the High Court. These appellants also aggrieved by theCjudgment of the High Court dated 28.09.2018 have filed the appealchallenging judgment on various grounds.

12. In these appeals, we have heard Dr. Abhishek Manu Singvi,Shri Jayant Bhushan and Mr. Paramjit Singh Patwalia, Senior Advocatesfor the appellant. Shri Shekhar Naphade, Senior Advocate has appearedDfor respondent No.1. Shri P.S. Narasimha, learned senior Advocate hasbeen heard for the applicants, who had prayed for intervention. We havealso heard other learned counsel in support of the appeals.

13. Learned Counsel for the appellant in Civil Appeal of VishalAshok Thorat has led the arguments. He submitted that the writ petitionEfiled by the respondent No.1 ought to have been dismissed on lachesand on conduct. It is submitted that the respondent No.1 has no locus tochallenge the recruitment of Assistant Motor Vehicles Inspector. Therespondent No.1 in his earlier writ petition being W.P.No.729 of 2017having 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 byFallowing the amendment application.

14. It is submitted that the respondent No.1 in pursuance ofadvertisements cannot be said to be aggrieved by the recruitment. It issubmitted that the amendment in W.P. No.1270 of 2018 was filed by therespondent No.1 only when the result was declared on 31.03.2018. It isGsubmitted that one nephew of respondent No.1 had also applied inpursuance of advertisement and could not be selected in the result dated31.03.2018, hence the respondent No.1 thereafter sought to challengethe advertisement, which challenge ought to have been rejected by theHigh Court. It is submitted that High Court having returned the finding in

paragraph 48 of the impugned judgment that writ petition cannot bepermitted to challenge the advertisements dated 30.01.2017 and01.07.2017, it ought not to have issued direction in paragraph 51 which isnothing but indirectly entertaining the challenge to the advertisementwhich could not have been directly entertained.

15. It is submitted that Rule 3 of Rules, 2016 fully complies withthe notification of the Central government dated 12.06.1989 issued underSection 213(4) of Motor Vehicles Act, 1988. The substantive part ofRule 3 is fully in consonance with qualifications prescribed by notificationdated 12.06.1989. The State government by Proviso in Rule (iii) andRule 3(iv) has given only breathing time to those candidates who doesnot fulfill qualification to obtain it during the probation period, which cannotbe said to be contrary to notification dated 12.06.1989.

16. It is further submitted that by subsequent notification dated08.03.2019 of the Central Government, the notification dated 12.06.1989has been substituted. Now the requirement of notification dated12.06.1989 is no longer in continuance. The State is free to makeappointment of the selected candidates.

17. It is further submitted that six writ petitions were alreadydismissed by the High Court, where the whole recruitment process wasunder challenge. Three Special Leave Petitions were filed against thejudgment of the High Court which too were dismissed by this Court. It issubmitted that respondent No.1, who was writ petitioner in Writ PetitionNo.1270 of 2018, had not impleaded any selected candidates, hence, nodirection could be issued by the High Court with regard to select listdated 31.03.2018. It is further submitted that Section 213 of the MotorVehicles Act prohibits appointment of candidates, who do not fulfill thequalifications as notified by the Central Government. None of the selectedcandidates having been appointed and the notification dated 12.06.1989being not in operation, there is no impediment in appointment of theselected candidates who fulfill the qualifications, which are prescribedas on date. It is submitted that proviso to Rule 3(iii) and Rule 3(iv) is notcontradictory to notification dated 12.06.1989 but is in harmony. TheHigh Court ought to have dismissed the writ petition denying relief to therespondent No.1 who was writ petitioner in the facts of the presentcase. In the facts and circumstances of the present case the respondentNo.1 has no locus to challenge the recruitment and selection.

A18. In support of the appeal filed by the State of Maharashtra,learned senior counsel submits that respondent No.1 had no locus to filea writ petition, he having not participated. It is submitted that provisos toRule 3(iii) and Rule 3(iv) of Rules, 2016 do not at all lower minimumqualification prescribed by Central Government vide notification dated12.06.1989, but it merely gives breathing period of two years (beforeBcompletion of probation period) to selected candidates to gain experienceof one year and driving licence. It is submitted that direction in paragraph51 of the judgment cannot be complied as on date, in view of fact thatnotification of the Central Government dated 12.06.1989, is no longer inoperation. Rules,2016 do not change the minimum qualification which isCsame as provided in substantive provision of Rule 3 and proviso carvesout only an exception giving some time to acquire the qualification duringthe probation period by which provision the zone of consideration hasbeen enlarged enabling the more meritorious candidates to apply for thepost. The High Court committed error in treating the writ petition filedby the respondent as Public Interest Litigation whereas in the serviceDmatters no Public Interest Litigation can be entertained.

19. It is further submitted that if only the qualification mentionedin the notification dated 12.06.1989 is adhered to, there are only 25candidates in the entire list of selected candidates who shall be availablefor appointment leaving almost all the posts of Assistant Inspector ofEMotor Vehicles vacant which is not in the interest of the State. TheCourt should take into consideration the subsequent events. Thenotification dated 08.03.2019 issued by the Central Government isimportant subsequent event, which has knocked out the very basis ofthe judgment of the High Court.F

20. It is further contended that it is the State, which has legislativecompetence with regard to the State Public Services Commission underEntry 41 List II of the Seventh Schedule of the Constitution of India.Thus, the State was fully empowered to make Rules providing forrecruitment to the post of Assistant Inspector of Motor Vehicles.G

21. Learned senior counsel appearing for the appellants in theappeal filed by Abhijit Appasaheb Vasagade and others has adopted thesubmissions made in appeal filed by Vishal Ashok Thorat and others. Itis further submitted that respondent No.1 in his earlier Writ PetitionNo.7239 of 2017 having not challenged the advertisement Nos. 2 of

2017 and 48 of 2017 had given up the right to challenge theseadvertisements, hence, he has no right to challenge these advertisementsin his second Writ Petition No.1270 of 2018. The appellants who areincluded in the list of 832 selected candidates grinded for two years and9 months and at the instance of respondent No.1 selection could nothave been interfered with by the High Court. Respondent No.1 is legallyestopped from challenging the selection process.

22. In Seventh Schedule, List III (concurrent list) Entry 35 providesfor “Mechanically propelled vehicles including the principles on whichtaxes on such vehicles are to be levied” which Entry does not empowerthe Central Government to prescribe minimum qualification for AssistantInspector of Motor Vehicles. The notification dated 12.06.1989 cannotbe 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 forrespondent No.1 refuting the submissions of the counsel for the appellantssubmits that respondent No.1 is qualified for the post of AssistantInspector of Motor Vehicles and had jurisdiction to challenge the Rules,2016. There is no delay on the part of the writ petitioner i.e. respondentNo.1 in challenging Rules, 2016. Rule 3(iii) and Rule 3(iv) of Rules, 2016diluted the minimum qualification as prescribed by the CentralGovernment by its notification dated 12.06.1989. The State cannot appointa person who does not fulfil the minimum qualification. The appointmentof such person even on probation is neither in the public interest nor inthe interest of public exchequer. Disqualified person cannot be allowedby the State to get salary even though when they are not discharging theduty of Assistant Inspector of Motor Vehicles. The High Court could notbe mute spectator in situation where the State has framed Rules forappointment of person who does not fulfil the qualification. No errorhas been committed by the High Court in setting aside Rule 3(iii), Rule3(iv)and Rule 4 of the Rules, 2016. Many selected candidates wereadded in the writ petition even though on their own instance and wereheard by the High Court hence it cannot be said that selected candidateswere not heard by the High Court. The notification dated 08.03.2019 bywhich the Central Government has now substituted earlier notificationdated 12.06.1989 is not applicable in the present case. Since, the entireprocess of recruitment has been completed during currency of notification

Adated 12.06.1989. The notification dated 01.08.2016 by the Governmentof India as relied by the appellant has never been published in the Gazette.

24. We have heard the learned counsel for the parties and perusedthe records.

25. We may first notice the Rule 3 and Rule 4 of Rules, 2016Bframed by the State of Maharashtra which were subject matter ofconsideration by the High Court. Rules, 2016 were framed in exerciseof power conferred by the proviso to Article 309 of the Constitution insupersession of all existing Rules. Rule 3 and Rule 4 which are relevantin the present case are as follows:C

“3. Appointment to the post of Assistant Inspector of MotorVehicles Group ‘C’ in Motor Vehicle Department, shall be madeby nomination on the basis of the result of competitive examinationheld by the Commission from amongst the following candidateswho,—

D(i)…………(ii)…………

(iii)possess practical experience of repairing andmaintenance of light motor vehicles, heavy goods vehiclesand heavy passenger vehicles, for period of not lessEthan one year gained after acquiring the qualificationsmentioned in clause (ii), in workshop run by Central orState Government undertaking or Department or in ainstitution recognized by Government from time to time.The experience as trainee or apprentice shall be countedFtowards requisite experience:

Provided that, if person not possessing practicalexperience of one year as above on the last date ofsubmission of application for admission to the competitiveexamination held by Commission shall obtain suchGexperience before completion of the period of probationin workshop run by Government undertaking orDepartment or in institution recognized by Government,from time to time; and

(iv)Possess valid driving license authorizing him to driveHmotor cycle with gears, light motor vehicles and transport

vehicles, (heavy good vehicles and heavy passengervehicles) issued by the Competent Authority on the lastdate of submission of the application for the admission tothe competitive examination held by the Commission;

Provided that, if person not holding valid license forheavy goods vehicles or heavy passenger vehicles, asthe case may be, or both heavy good vehicles and heavypassenger vehicles on the last date of submission ofapplication for admission to the competitive examinationheld by the Commission, shall obtain such driving licensebefore 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

4. person appointed to the post of Assistant Motor VehiclesInspector shall not perform the duty and responsibility of the saidpost till he gains and acquires the prescribed experience and drivinglicense within probation period as mentioned in proviso to clauseE(iii) and clause (iv) of Rule 3.”

26. Section 213 sub-section (4) of Motor Vehicles Act, 1988provides for:

“Section 213(4) The Central Government may, having regard tothe objects of the Act, by notification in the Official Gazette,prescribe the minimum qualifications which the said officers orany class thereof shall possess for being appointed as such.”

27. Notification dated 12.06.1989 has been issued by the CentralGovernment in exercise of its power under Section 213(4) of MotorVehicles Act provides as follows:

“GOVERNMENT OF INDIA

NOTIFICATION

SO 443(E), dated 12.6.1989: In exercise of the powers conferredby Sub-Section (4) of Section 213 of the Motor Vehicles Act,

A1988 (59 of 1988), the Central Government hereby prescribedthat the minimum qualification for the class of officers consistingof the category of Inspector of Motor Vehicles or AssistantInspector of Motor Vehicles by whatever names called shall beas under:-

B(1)Minimum general educational qualification of pass in Xstandard; and

(2)A diploma in Automobile Engineering (3-year course of adiploma in Mechanical Engineering awarded by the StateBoard of Technical Education (3 years course); and

(3)Working experience of at least one year in reputedautomobile workshop which undertakes repairs of both lightmotor vehicles, heavy goods vehicles and heavy passengermotor vehicles fitted with petrol and diesel engine; and

(4)Must hold driving licence authorising him to drive motorDcycle, heavy goods vehicles and heavy passenger motorvehicles.

2.…………3.………

E28. Reverting to the facts of the present case the MPSC issuedthe Advertisement dated 30.01.2017 (Advertisement No. 2 of 2017) forfilling up the posts of Assistant Inspector of Motor Vehicles. In pursuanceof which preliminary examination was held on 30.04.2017, the result ofwhich was declared on 30.06.2017 and main examination was also heldon 06.08.2017. Much after holding of the above examinations, respondentFNo.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. Thewrit petition was disposed of on 13.11.2017 giving liberty to makerepresentation in the matter to the State. The State rejected theGrepresentation of respondent No.1 referring to order of MaharashtraAdministrative Tribunal where similar challenge to the Rules was rejected.Writ Petition No.1270 of 2018 was filed by respondent No.1 on 27.02.2018wherein he again only challenged the Recruitment Rules, 2016. Theresult of main examination held on 06.08.2017 for 633 posts of AssistantInspector of Motor Vehicles was declared on 31.03.2018. It wasH

thereafter when respondent No.1 filed application for amendment on13.04.2018 which was allowed by the High Court. It is useful to refer tothe amended prayers which were added in Writ Petition No.1270 of2018, which are to the following effect:

“iii-a) By way of appropriate writ, order or direction, hold anddeclare that he preliminary advertisement dated 30.01.2017 andmain advertisement dated 01.07.2017 issued by Respondent No.2in pursuance to the Notification issued by Respondent on23.12.2016, as ultra-virus, arbitrary, unreasonable and illegal andalso direct that the entire recruitment process undertaken pursuantto said Recruitment Rules, dated 23.12.2016 be quashed and setaside.

iii-b) By way of appropriate writ, order or direction, hold and declarethat, the select list published on dated 31.03.2017 vide Annexure-XII in pursuance to the preliminary advertisement dated 30.01.2017and main advertisement dated 01.07.2017 issued by M.P.S.C. inpursuance 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 issuefresh advertisement in accordance with rules prescribed by theCentral Government in that behalf by Notification dated 12.06.1989and to carry out fresh process of selection in pursuance to thatfresh advertisement be issued in accordance with the rulesprescribed by the Central Government in that behalf by Notificationdated 12.06.1989.”

29. The High Court, thus, permitted the respondent No.1 tochallenge the advertisement Nos.2 of 2017 and 48 of 2017 and the entirerecruitment process undertaken thereunder. Respondent No.1 was alsopermitted to challenge the select list dated 31.03.2018. Respondent No.1in his writ petition sought to challenge advertisements only on 13.04.2018whereas advertisement for preliminary examination was first issued on30.01.2017. Admittedly, respondent No.1 never applied against theadvertisement to participate in the recruitment for the post of AssistantInspector of Motor Vehicles.

30. The High Court although has permitted respondent No.1 toamend the prayer in the writ petition by including challenge to theadvertisements as well as challenge to the select list but in the impugned

Ajudgment the High Court has categorically held that respondent No.1cannot be allowed to challenge the advertisements dated 30.01.2017and 01.07.2017. The High Court in paragraph 48 of its judgment hasclearly held that writ petitioner cannot be permitted to challenge theadvertisements dated 30.01.2017 and 01.07.2017. In paragraph 48 ofthe judgment following was held:B

“48. When petitioner has not challenged the advertisement in WritPetition No.7239 of 2017, this Writ Petition cannot be viewedindependent of order dated 13.11.2017 in earlier Writ Petition.Preliminary advertisement and main advertisement were all issuedbefore Writ Petition No.7239/2017 was filed in High Court onC31.10.2017. We, therefore, do not find it necessary to delve intovarious judgments mentioned supra. It follows that the petitionercannot be permitted to challenge the advertisements dated30.01.2017 and 01.07.2017. However, that does not preclude himfrom challenging the dilution in qualifications effected by the StateDGovernment for recruitment as per 2016 Rules for the post ofAssistant Inspector of Motor Vehicles. He is citizen and alsoqualified, as per norms prescribed by the Central Government tocompete for it.”

31. When the High Court held that respondent No.1 could not beEpermitted to challenge the advertisements dated 30.01.2017 and01.07.2017, we failed to appreciate that how the High Court could haveinterfered with the select list of 832 candidates, which was preparedafter preliminary examination and main examination in pursuance to theadvertisements dated 30.01.2017 and 01.07.2017. When respondentNo.1 was not allowed to challenge the advertisements, tinkering withFthe select list by the High Court was impermissible and self-contradictory.The High Court in paragraph 51 of the judgment has issued followingdirection:

“51. Consequently, we direct respondents to choose and selectfrom the aspirants who have participated in selection process,Gonly such candidates who fulfill the requirements of practicalexperience and driving licence, as per the qualification prescribedby the Central Government i.e. as per substantive part of Rule3(iii) and Rule 3(iv) of 2016 Rules.”

32. The direction in paragraph 51 of the impugned judgment clearlyHdirected the select list to be re-drawn by including only those candidates

who fulfill the requirements of practical experience and driving licenceas prescribed by the Central Government i.e. as substantive part of Rule3(iii) and Rule 3(iv) of Rules, 2016, which the High Court could not doin view of its finding in paragraph 48 of the judgment. When person isnot permitted to challenge the advertisements and process of recruitment,the select list which is outcome of such recruitment process cannot beinterfered at the instance of such person. The High Court, thus, clearlyerred in issuing direction in paragraph 51 to modify the select list dated31.03.2018.

33. One more submission raised by the learned counsel for theappellant 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 PetitionNo.1270 of 2018 did not implead any of the selected candidates out ofthe list of 832. No selected candidate having been impleaded by respondentNo.1, the High Court erred in issuing direction to modify and review theselect list. The direction of the High Court in paragraph 51 is clearlyagainst the interest of the appellants, who as per direction shall go out ofthe select list, the select list having been published on 31.03.2018, i.e.,much before the date when respondent No.1 filed application foramendment in the writ petition for challenging the advertisement Nos.2of 2017 and 48 of 2017, he ought to have impleaded the selectedcandidates whose names were already published by the MPSC.Respondent No.1 without bringing the selected candidates on recordcould not have obtained any order adverse to the selected candidates.The appellants rightly placed reliance on the Constitution Bench judgmentof this Court in Udit Narain Singh, Malpatharia vs. AdditionalMember Board of Revenue, Bihar and another, AIR 1963 SC786. The Constitution Bench in paragraphs 6, 7 and 9 laid down following:

“6. The question is whether in writ in the nature of certiorarifiled under Art. 226 of the Constitution the party or parties inwhose favour tribunal or authority had made an order, which issought to be quashed, is or are necessary party or parties. Whilelearned Additional Solicitor General contends that in such writthe said tribunal or authority is the only necessary party and theparties in whose favour the said tribunal or authority made anorder or created rights are not necessary parties but may at bestbe only proper parties and that it is open to this Court, even at thisvery late stage, to direct the impleading of the said parties for

final adjudication of the controversy, learned counsel for therespondents contends that whether or not the authority concernedis necessary party, the said parties would certainly be necessaryparties, for otherwise the High Court would be deciding casebehind the back of the parties that would be affected by its decision.

7. To answer the question raised it would be convenient at theoutset to ascertain who are necessary or proper parties in aproceeding. The law on the subject is well settled: it is enough ifwe state the principle. necessary party is one without whom noorder can be made effectively; proper party is one in whoseabsence an effective order can be made but whose presence isnecessary for complete and final decision on the question involvedin the proceeding.

9. The next question is whether the parties whose rights are directlyaffected are the necessary parties to writ petition to quash theorder of tribunal. As we have seen, tribunal or authorityperforms judicial or quasi-judicial act after hearing parties. Itsorder affects the right or rights of one or the other of the partiesbefore it. In writ of certiorari, the defeated party seeks for thequashing of the order issued by the tribunal in favour of thesuccessful party. How can the High Court vacate the said orderwithout the successful party being before it? Without the presenceof the successful party the High Court cannot issue substantialorder affecting his right. Any order that may be issued behind theback of such party can be ignored by the said party, with theresult that the tribunal’s order would be quashed but the rightvested in that party by the wrong order of the tribunal wouldcontinue to be effective. Such party, therefore, is necessaryparty and petition filed for the issue of writ of certiorari withoutmaking him party or without impleading him subsequently, ifallowed by the court, would certainly be incompetent. partywhose interests are directly affected is, therefore, necessaryparty.”

34. This Court in Public Service Commission, Uttaranchalvs. Mamta Bisht and others, (2010) 12 SCC 204, laid down thatwrit petition could not have been entertained against the selected candidatewhen he has not been party in the writ petition. In the above case,Public Service Commission invited applications for the posts of Civil

Judge (Junior Division. The respondent No.1 was not included in theselect list. The respondent No.1 filed writ petition claiming that sheought to have been selected in the reserved category being woman ofUttaranchal. The claim of respondent No.1 that she was entitled to havebeen offered the appointment giving her the benefit of horizontalreservation for Uttaranchal women was accepted by the High Court.Challenging the said judgment of the High Court, the appeals were filedby the Public Service Commission, Uttaranchal as well as State ofUttaranchal. This Court set aside the judgment of the High court on theground that the selected candidate in reserved category vacancy was anecessary party. In paragraph 9 of the judgment following has been laiddown:“9. In case the respondent No. 1 wanted her selection againstthe reserved category vacancy, the last selected candidate in thatcategory was necessary party and without impleading her, thewrit petition could not have been entertained by the High Court inview of the law laid down by nearly Constitution Bench of thisCourt in Udit Narain Singh Malpaharia v. Additional Member,Board of Revenue, Bihar and Anr., AIR 1963 SC 786, whereinthe Court has explained the distinction between necessary party,proper party and proforma party and further held that if personwho is likely to suffer from the order of the Court and has notbeen impleaded as party has right to ignore the said order as ithas been passed in violation of the principles of natural justice.More so, proviso to Order I, Rule IX of Code of Civil Procedure,1908 (hereinafter called “CPC”) provide that non- joinder ofnecessary party be fatal. Undoubtedly, provisions of CPC are notapplicable in writ jurisdiction by virtue of the provision of Section141 CPC but the principles enshrined therein are applicable. (VideGulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC1153; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat andOrs., AIR 1974 SC 2105; and Sarguja Transport Service v. StateTransport Appellate Tribunal, Gwalior and Ors., AIR 1987 SC88).”

35. Shri Shekhar Naphade refuting the above submission has placedreliance on the judgment of this Court in A. Janardhana vs. Union ofIndia and others, (1983) 3 SCC 601. This Court in the above casehas rejected the submission that those who had scored march over the

Aappellant in the seniority list having not been impleaded as respondents,no relief could have been granted to the appellant. Shri Naphade hasrelied on paragraph 36 of the judgment which is to the following effect:

“36. It was contended that those members who have scored amarch over the appellant in 1974 seniority list having not beenimpleaded as respondents, no relief can be given to the appellants.In the writ petition filed in the High Court, there were in all 418respondents. Amongst them, first two were Union of India andEngineer-in-Chief, Army Headquarters, and the rest presumablymust be those shown senior to the appellant. By an order madeby the High Court, the names of respondents 3 to 418 were deletedsince notices could not be served on them on account of thedifficulty in ascertaining their present addresses on their transferssubsequent to the filing of these petitions. However, it clearlyappears that some direct recruits led by Mr. Chitkara appearedthrough counsel Shri Murlidhar Rao and had made the submissionson behalf of the direct. Further any application was made to thisCourt by nine direct recruits led by Shri T. Sudhakar for beingimpleaded as parties, which application was granted and Mr. P.R.Mridul, learned senior counsel appeared for them. Therefore, thecase of direct recruits has not gone unrepresented and thecontention can be negatived on the short ground. However, there

is more cogent reason why we would not countenance thiscontention. In this case, appellant does not claim seniority overparticular individual in the background of any particular factcontroverted by that person against whom the claim is made. Thecontention is that criteria adopted by the Union Government indrawing up the impugned seniority list are invalid and illegal andthe relief is claimed against the Union Government restraining itfrom upsetting or quashing the already drawn up valid list and forquashing the impugned seniority list. Thus, the relief is claimedagainst the Union Government and not against any particularindividual. In this background, we consider it unnecessary to haveall direct recruits to be impleaded as respondents. We may in thisconnection refer to General Manager, South Central Railway,Secunderabad and Anr. etc. v. A.V.R. Sidhanti and Ors. etc.,(1974)4 SCC 335. Repelling contention on behalf of the appellantthat the writ petitioners did not implead about 120 employees whowere likely to be affected by the decision in this case, this Court

observed that the respondents (original petitioners) are impeachingthe validity of those policy decisions on the ground of their beingviolative of Articles 14 and 16 of the Constitution. The proceedingsare analogous to those in which the constitutionality of statutoryrule regulating the seniority of government servants is assailed. Insuch proceedings, the necessary parties to be impleaded are thoseagainst whom the relief is sought, and in whose absence noeffective decision can be rendered by the Court. Approaching thematter from this angle, it may be noticed that relief is sought onlyagainst the Union of India and the concerned Ministry and notagainst any individual nor any seniority is claimed by anyoneindividual against another particular individual and therefore, evenif technically the direct recruits were not before the Court, thepetition is not likely to fail on that ground. The contention of therespondents for this additional reason must also be negatived.”

36. The judgment of this Court in A. Janardhana relied by ShriNaphade is not applicable in the facts of the present case. In the abovecase, this Court was considering the challenge to the seniority list. ThisCourt has noticed in paragraph 36 that the appellant had not claimedseniority over any particular individual in the background of any particularfact controverted by that person against whom the claim is made. Thecontention was that criteria adopted by the Union Government in drawingup the seniority list are invalid and illegal and the relief is claimed againstthe Union Government restraining it from upsetting or quashing alreadydrawn up valid list. Thus, the relief is claimed against the UnionGovernment and not against any particular individual. This Court bymaking the above observation has repelled the submission that reliefcould not have been granted without impleading those who were affectedin the seniority list. The claim pertaining to seniority may be laid ondifferent grounds. There may be cases where seniority is claimed againstindividual person on specific facts, it might be necessary to implead thosepersons but there may be cases where non-impleadment of person inseniority dispute may not be fatal. The present is case of recruitmentand selection, where after participation in the selection process, 832candidates were finally selected and were included in the select list. Byinclusion in the select list, the selected candidate had acquired right ofconsideration for appointment, which could not have been taken away inthe writ petition filed by respondent No.1, where he could not havechallenged the advertisement Nos.2 of 2017 and 48 of 2017.

A37. Shri Naphade further submitted that by mere inclusion of thename in the select list, no right has accrued to the selected candidate forappointment. It may be true that by mere inclusion in the select list, thereis no right of appointment but by inclusion in the select list the candidateis entitled for consideration for his appointment, which could not havebeen denied without there being any valid reason. Thus, we find force inBthe submission of the appellant that in the present case, the High Courtcould not have modified the select list without the selected candidates,whose interest was jeopardized by the High Court being impleaded inthe writ petition. Thus, directions issued by the High Court in paragraph51 are not sustainable also in view of the fact that respondent No.1 hadCnot impleaded the selected candidates in his writ petition.

38. Although, learned counsel for the parties have made elaboratesubmissions on the validity of Rule 3(iii) proviso, Rule 3(iv) proviso andRule 4 but in the facts of the present case, where writ petitioner, i.e.,respondent No.1 was held by the High Court not competent to challengeDthe advertisement Nos.2 of 2017 and 48 of 2017, the High Courtcommitted error in proceeding to examine the validity of the Rules, 2016.The challenge to Rules, 2016 in the background of the present caseought not to have been allowed to be raised at the instance of the writpetitioner. The respondent No.1, who did not participate in the selectionand the High Court had specifically rejected the entitlement of theErespondent No.1 to challenge the advertisement Nos.2 of 2017 and 48of 2017, as held in paragraph 48 of the judgment, permitting him tochallenge the validity of the Rules in reference to the same advertisementsis nothing but indirectly challenging something which could not bechallenged directly by the respondent No.1. The High Court in the factsFof the present case, where respondent No.1 was not allowed to challengethe advertisements or the select list should not have been allowed tochallenge the Rules, 2016 in so far as the selection in question wasconcerned. The writ petition filed by respondent No.1 was not styled orframed as PIL. It is well settled that with regard to service jurisprudence,PIL are not entertained. In Ayaaubkhan Noorkhan Pathan vs. StateGof Maharashtra and others, (2013) 4 SCC 465, this Court hasreiterated that PIL should not be entertained in service matter. Inparagraph 15 following has been laid down:

“13. Even as regards the filing of Public Interest Litigation, thisCourt has consistently held that such course of action is notH

permissible so far as service matters are concerned. (Vide: Dr.Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors.,AIR 1999 SC 114; Dattaraj Natthuji Thaware v. State ofMaharashtra, AIR 2005 SC 540; and Neetu v. State of Punjaband Ors., AIR 2007 SC 758)”

39. perusal of the impugned judgment indicates that the HighCourt was influenced by the submission of the appellant that loss beingcaused to the public revenue by appointment of Assistant Inspector ofMotor Vehicles, who did not fulfill qualification as laid down in notificationdated 12.06.1989, the High Court has virtually entertained the writ petitionas PIL. Following observations made by the High Court in paragraph 29clearly indicate that the High Court proceeded to treat the writ petitionas PIL, although, it relates to condition of service of Assistant Inspectorof Motor Vehicles. In paragraph 29 following has been observed by theHigh Court:

“We are here, satisfied that the loss being caused to public revenuecannot be ignored and challenge cannot be seen as grievancepertaining to service condition. Contention that it cannot, therefore,be seen as public interest litigation, is misconceived. Its largerimpact on Society due to hole in taxpayer’s money and omissionto make requisite service available to the citizens, all necessitatecognizance by any writ petition.”

40. We, thus, are of the view that the High Court ought not tohave entertained the writ petition, in which challenge was to the Rules,2016, which were clearly in reference to recruitment under advertisementNos.2 of 2017 and 48 of 2017. When the respondent No.1, i.e., writpetitioner was held not entitled to challenge the advertisement Nos.2 of2017 and 48 of 2017 at his instance, proceeding to entertain the challengeto the validity of the Rules and to strike down the Rules and modifyingthe select list dated 31.03.2018 was clearly impermissible. The HighCourt, thus, fell in error in issuing directions in paragraph 51. We arealso of the view that in the facts of the present case, it was not necessaryfor the High Court to enter into the validity of Rule 3(iii), Rule 3(iv) andRule 4 of the Rules, 2016. We having taken the view that directionsissued by the High Court in paragraph No.51 are not sustainable, for thepurpose of this case, it is not necessary for us to dwelve upon varioussubmissions raised with regard to Rules, 2016, which according to us

Awas not required to be gone into by the High Court in the background ofthe present case.

41. For the purposes of the present case, we are of the view thatcontention pertaining to validity of Rule 3(iii), Rule 3(iv) and Rule 4 ofthe Rules, 2016 need not to be gone into and the issues be left open to beBdecided in an appropriate case.

42. In view of the forgoing discussions, we allow these appeals,set aside the judgment of the Division Bench of the High Court dated28.09.2018 and dismiss the Writ Petition No.1270 of 2018. Parties shallbear their own costs.

Nidhi Jain

Appeals allowed.