-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2152 OF 2001 Bankim Kapadia, residing at ) H/40, 14th Floor, Hyderabad Estate, ) Napeansea Road, Mumbai-400 036 )..Petitioner versus 1. Union of India by and through the Secretary, ) Ministry of Information and Broadcasting, ) Shastri Bhavan, New Delhi-110 001 through the Joint ) Secretary, Ministry of Law, Justice and Company Affairs, ) Aayakar Bhavan, New Marine Lines, ) Bombay-400 020 ) 2. The Secretary, Union Public Service Commission, ) Dholpur House, New Delhi-110 001 ) 3. Central Administrative Tribunal, Mumbai. ).Respondents Mr. K.R. Bulchandani with Ms. L.K. Bulchandani and Ms. Tulsi A. Zaveri, instructed by M/s. Kamal & Company, for the petitioner. Mr. S.M. Shah with Mr. H.K. Vardhan and Mr. .B.Tiwari for the respondents. CORAM: P.B. MAJMUDAR & R.M. SAVANT , JJ. DATE: JULY 14 , 2009 ORAL JUDGMENT (Per R.M. SAVANT, J.): This petition filed under Article 226 of the Constitution of India takes exception to the letters dated 15th January, 2001, 7th March, 2001 and 9th March, -2- 2001 and the purported oral order dated 19th June, 2001. The said letters and the said purported oral order are in respect of the communication to the petitioner that the petitioner’s request for treating him as a promotee in the post of Chief Producer was not acceded to by the respondents. 2. The petitioner at present is working as the Joint Chief Producer in the Ministry of Information and Broadcasting. The bone of contention in the petition is the post of Chief Producer. The said post, as the recruitment Rules disclose, is to be filled either by promotion, deputation/transfer, or by direct recruitment on contract basis. The qualifications for the said post are mentioned in the recruitment Rules which are appended to the petition. 3. The petitioner initially joined the Films Division in the year 1982 and was selected on 29th October, 1993 by the Union Public Service Commission (“UPSC”) for appointment as Joint Chief Producer. Since the petitioner did not receive any appointment letter pursuant to the said selection, the petitioner was constrained to approach the Central Administrative Tribunal, Bangalore by filing an Original Application. The said Original Application was disposed of by the Central Administrative Tribunal, Bangalore, by its order dated 29th June, 1995, directing the respondents herein to issue the appointment letter to the petitioner within a period of four months. The petitioner was accordingly issued the appointment letter on 23rd January, 1996 appointing him to the said -3- post of Joint Chief Producer on ad-hoc basis. The petitioner’s services were regularised as Joint Chief Producer on 30th June, 1998. It appears that the petitioner was asked to hold charge of the post of Chief Producer on certain occasions. It appears that on 13th September, 1996, the UPSC commenced the process of filling up the post of Chief Producer by issuing an advertisement in that behalf. The petitioner applied pursuant to the said advertisement. The petitioner was selected and by letter dated 26th June, 1998, the petitioner was called upon to enter into contract for three years from 30th June, 1998 to 30th June, 2001. The petitioner signed the said contract on 20th July, 1998 and was thereafter appointed to the post of Chief Producer by a notification dated 4th August, 1998. In terms of the said contract, the petitioner’s tenure as Chief Producer was to come to an end on 30th June, 2001. Prior thereto, correspondence ensued between the administration of the Films Division, the petitioner, Ministry of Information and Broadcasting and the UPSC in respect of the petitioner being treated as a promotee rather than a direct recruit by contract in terms of the Regulations. This resulted in the UPSC as well as the Ministry informing the petitioner’s Department as well as the petitioner that since the petitioner was not fulfilling the requirement of three years of service in the feeder post, the petitioner’s appointment could not be treated as one by promotion and, in terms of the contract which was entered into, it could only be treated as one by direct recruitment on contract basis. It appears that the respondents, in view of the fact that the petitioner’s tenure was coming to an end -4- in terms of the contract of 30th June, 2001, intended to start the selection procedure for filling up the said post of Chief Producer, the petitioner approached the Central Administrative Tribunal, Mumbai, for stay on the selection process. The sum and substance of the case of the petitioner in the application before the Tribunal at Mumbai was that he was entitled to continue on the basis that he was a promotee to the said post of Chief Producer and that he could not be treated as a candidate who has been appointed on contract basis. The Tribunal considered the case of the petitioner and did not find any merit in the said case. However, the Tribunal was of the view that the selection procedure should be completed by the respondents within a particular time frame. The Tribunal also directed that pending such selection, the petitioner be allowed to continue to hold the post of Chief Producer. 4. Aggrieved by the order passed by the Tribunal at Mumbai dated 19th June, 2001, the petitioner filed the present writ petition in this Court. The above writ petition came up for admission before a Division Bench of this Court on 24th September, 2001 when an ad-interim order came to be passed to the effect that the petitioner to continue as the officiating Chief Producer and the respondents to go through selection procedure but the results not to be declared. During the pendency of the above petition, it appears that a case was registered against the petitioner under the Prevention of Corruption Act, 1970 and which case admittedly is yet pending. On the case being registered, the petitioner was -5- put under suspension. The said suspension came to be revoked on 20th December, 2004 and the petitioner was asked to take over as Joint Chief Producer which was the post he was holding prior to his appointment as Chief Producer in the year 1998. 5. As indicated above, the dispute in question is as regards whether the petitioner was appointed as a promotee or by direct recruitment on contract basis to the said post of Chief Producer. It is an undisputed fact that the petitioner had entered into a contract under which the petitioner was to hold the said post of Chief Producer for a period of three years which period has come to an end on 30th June, 2001. 6. We have heard the learned counsel for the parties. Though Shri Bulchandani, learned counsel appearing for the petitioner, raised various contentions as regards the petitioner’s entitlement to continue on the basis that he was promoted to the post of Chief Producer from the post of Joint Chief Producer and was, therefore, entitled to continue as a Chief Producer. Shri Bulchandani, after taking instructions from his client who is present in Court, submitted that his client would be satisfied, if the respondents are directed to complete the selection process which had been directed to be completed by the Tribunal at Mumbai within a particular time frame, as also this Court at the interim stage. The learned counsel also drew our attention to the averments -6- made in the affidavit-in-reply filed on behalf of the respondents and especially the part of the affidavit wherein it has been stated that the said post of Chief Producer would be filled up by adhering to the recruitment Rules and that the petitioner’s case would also be considered along with others. Though the petitioner is being prosecuted under the Prevention of Corruption Act, the respondents have found him fit to be continued as a Joint Chief Producer and even his suspension was revoked, therefore, in our view, the said fact of the pendency of the criminal case should not come in the way of the petitioner from being considered for the post of Chief Producer. 7. In view of the said submission made on behalf of the petitioner by Shri Bulchandani and also in view of the averments made in the affidavit that the petitioner’s case would be considered, in our view, the interest of justice would be served, if the following directions are issued. (i) The respondents to intimate the UPSC to initiate the process of selection to the post of Chief Producer within four weeks from date; (ii) The respondents may also request the UPSC to complete the selection procedure in terms of the recruitment Rules within a period of three months thereafter. (iii) The respondents and the UPSC are directed to consider the case of the petitioner in terms of the recruitment Rules and without being influenced -7- by the pendency of the criminal case/proceedings against him, if he otherwise fulfils the requirements as regards the qualifications for the said post; (iv) In the event the petitioner is selected for the said post, the continuance of the petitioner in the said post would be contingent upon the result of the criminal prosecution which is pending against him in the Sessions Court at Mumbai. 8. We accordingly allow the petition by making the rule absolute to the aforesaid extent. P.B. MAJMUDAR, J. R.M. SAVANT, J.