Supreme Court: Recruiting Candidates Beyond Notified Vacancies Will Be Unconstitutional

Supreme Court: Recruiting Candidates Beyond Notified Vacancies Will Be Unconstitutional

The Supreme Court of India (SC) bench comprising Justices L. Nageswara Rao, Indu Malhotra, and Vineet Saran set aside an order passed by the Maharashtra Administrative Tribunal, Nagpur Bench (Tribunal) and stated that an authority cannot fill up more than the notified number of vacancies advertised

The SC bench in the case of Gajanan Babulal Bansode (Appellant) v. State of Maharashtra (Respondent) observed that recruitment of candidates above the notified vacancies will be violative of Articles 14 and 16 (1) of the Constitution of India.

The factual background of the case is that the Government of Maharashtra (respondent) through Circular dated 27 June 2016 notified 828 vacancies for promotion to the post of Police Sub-Inspector.

Later, the Government passed a resolution wherein it notified a policy decision to accommodate 636 additional candidates who had secured more than 230 marks in the LDCE – 2016 examination. The said resolution was challenged before the Administrative Tribunal.

The Tribunal passed an interim order wherein it directed that the Status Quo be maintained regarding 636 additional candidates whose list was appended to the Government Resolution. Later, the said order was vacated by the Tribunal.

A writ petition was filed before the High Court of Bombay (HC) wherein the Court rejected the Writ Petition, and the prayer to maintain status quo with respect to the 636 additional candidates who were directed to be appointed.

It declined to determine whether the G.R. dated 22 April 2019 had been issued in extraordinary circumstances as provided by Rule 5 since the O.A. was pending adjudication before the Tribunal. However, the HC directed the State Government to send the additional 636 candidates for the training of nine months.

The appellants approached the Apex Court and the bench observed, "The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India."

It was further noted by the Top Court that Article 320(3)(a) of the Constitution provides that the Union Public Service Commission or the State Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services, and for civil posts.

"In the present case, we find that the State of Maharashtra has issued the impugned G.R. dated 22.04.2019, without any consultation or prior approval by the MPSC, which is evident from the letter dated 11.07.2019 issued by the MPSC to the Government, expressing its disapproval of the decision taken by the Government unilaterally to make these appointments without any consultation," observed the Bench.

The Court further emphasized on Rule 5 of the Police Sub-Inspector (Recruitment) Rules, 1995 which provides that "Notwithstanding anything contained in these rules, if in the opinion of the Government, the exigencies of service requirements, the ratio prescribed for appointment by promotion, on the basis of Limited Departmental Examination or nomination, may be relaxed with the prior consultation of the Commission."

The SC stated while explaining Rule 5 that the respondent would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances that has warranted the exercise of power under Rule 5 and that can be considered as a rare and exceptional circumstance.

The Apex Court set aside the orders of the Tribunal and the HC. While setting aside the order of the HC, the SC stated, "We are of the view that such a direction ought not to have been passed in the Writ Petition filed by the present Petitioners, who are aggrieved by the impugned Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge."

It directed that the Government Resolution will remain stayed during the pendency of proceedings before the Maharashtra Administrative Tribunal.