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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2607 OF 2001
Union of India,
through Dy. Chief Mechanical Engineer,
Parel Workshop, Central Railway,
Parel, Mumbai - 400 012 .....Petitioner
V/s.
1. K. Pradeepan
2. M.P.Nasi
3.
4.
G.L.Shiriskar
B.B.Raut
5. M.Ramaswamy
6. T.M.Shivnandan
7. R.M.Kondvilkar
8. J.R.Chawan
9. M.D.Moraya
C/o G.S.Walia,
Advocate High Court,
16, Maharashtra Bhavan,
Bora Masjid Street, Fort,
Mumbai - 400 001. ..... Respondents
Mr.Suresh Kumar, for the petitioner.
Mr.Rahul Walia, for the respondents.
Mr.D.V.Gangal, Intervenor.
CORAM : P.B.MAJMUDAR &
R.M.SAVANT, JJ.
DATE : JULY 17, 2009
ORAL JUDGMENT : ( Per R.M.Savant, J. ) :
1. This petition filed under Article 226 of the Constitution of
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India takes exception to the judgment and order dated 20-04-2001 passed
by the Central Administrative Tribunal, Mumbai Bench, Mumbai. By the
said order, the Original Application No.1185 of 1996 filed by the
respondent Nos.1 to 9 herein, came to be allowed and the examination
conducted on 30-09-1996 for the post of Office Superintendent came to be
set aside, as also the consequential selection thereto. However, employees
who were appointed on the basis of the said selection were allowed to
work on an Ad-hoc basis till the fresh selection test is conducted and
selection made thereto.
2. The respondents herein are all employees of the Central
Railways and belonging to the ministerial cadre of the Parel workshop and
were at the relevant time, working as Head Clerks, which is the feeder
cadre for the promotion to the post of Office Superintendent Grade II.
3. The petitioner herein issued a Notification for the purposes
of holding selection to the post of Office Superintendent – Grade II in the
Grade of Rs.1600-2660. A written examination was conducted on
30-09-1996. On 18-10-1996, a supplementary examination was held.
The respondents herein appeared in the said examination. Results of the
said examination were declared on 27-11-1996. Out of 99 persons who
had appeared in the written examination, 59 qualified for the viva voce.
Accordingly, the said candidates were called for viva voce which was held
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on 9th and 10th December, 1996.
4. Pursuant to the said viva, 33 candidates were selected.
Aggrieved by their non-selection, the respondents herein had filed Original
Application No.1185 of 1996. The sum and substance of the case of the
respondents in the Original Application was that the selection made
pursuant to the said written test and viva voce, was vitiated on account of
the fact that the Circular dated 05-12-1984, on the basis of which marks
for seniority were granted to the selected candidates, could not have been
relied upon by the petitioner as the said Circular/letter had been quashed
and set aside by the Jabalpur Bench of the Central Administrative Tribunal
and which Judgment is reported in ATR 1990(1) CAT 458 in the matter of
Munshi Ram and Anr. V/s. Union of India and Ors.
5. The Tribunal considered the said Original Application. The
Tribunal principally relying on the said judgment of the Jabalpur Bench,
was of the view that since the Circular dated 05-12-1984 was quashed and
set aside, the petitioner herein could not carry out selection by assigning
marks for seniority. The Tribunal therefore, quashed and set aside the said
selection. However, granted limited protection to the candidates who had
been selected till fresh selection was carried out by the petitioner.
6. During the course of hearing of the above petition,
Mr.Suresh Kumar, the learned counsel for the petitioner, made available
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the concerned file for our perusal. The said file contained the result sheet
of the said examination. It would be relevant to note that in so far as the
qualifying marks for being called for viva voce was concerned, only the
candidates who had obtained 60 marks in the aggregate were called for
viva voce. Mr.Suresh Kumar drew our attention to the marks obtained by
the respondents herein in the written examination. A perusal of the said
result sheet, disclosed that all the candidates were given marks for
seniority including the respondents herein. Even taking the said marks
into consideration, the respondents did not get the qualifying marks i.e.
60. The said file and the result sheet was also shown to the learned
counsel Shri R.G.Walia, appearing for the respondent Nos.1 to 9, who on
reading the result sheet fairly accepted the said position. It is significant to
note that even if 15 marks were to be given to each of the respondents,
may not be on account of seniority, even then the respondents would not
have reached the qualifying figure of 60 marks. Out of the selected
candidates only three reached the qualifying figure of 60 marks on account
of marks given to them for seniority. In so far as the respondents are
concerned, the marks obtained by them in the written examination, were
such that as mentioned hereinabove, even if all the 15 marks were given
to them, they would have not reached the qualifying figure of 60.
Therefore, the marks given on account of seniority, in the facts of the
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present case, does not really have a bearing on the said selection.
7. It would also be significant to note that persons who were
selected on the basis of the said selection, were not joined as parties to the
Original Application. In our view, the same was a serious lacuna in the
proceedings filed by the respondent Nos.1 to 9 herein. However, the
Tribunal has just glossed over the said fact. It would also be pertinent to
note that the respondents herein, have been selected in the subsequent
selection which were held and are presently holding the post of Office
Superintendent Grade II. The grievance in the present petition raised by
the learned counsel for the respondents, was therefore, limited to the date
from which the respondents ought to have been appointed as Office
Superintendent Grade II.
8. In our view, considering the facts of the instant case,
though the said Circular dated 05-12-1984 was wrongly relied upon by
the petitioner, which fact has been fairly admitted by the learned counsel
for the petitioner, the same has no bearing on the selection made for the
reasons mentioned hereinabove. In that view of the matter, in the facts
and circumstances of the present case, the order passed by the Tribunal
relying only upon the Judgment of the Jabalpur Bench of the Central
Administrative Tribunal (Supra), cannot be sustained. In so far as the
subsequent selections are concerned, we are told that the said Circular
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dated 05-12-1984 has not been implemented. The petition is therefore,
allowed in terms of prayer clause (a). Rule is accordingly made absolute
to the above extent.
( R.M.SAVANT, J. ) (P.B.MAJMUDAR, J.)
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