-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2616 OF 2001 Smt. Jyoti Deepak Sankpal, ) working as Jr. Hindi Translator in the All India Institute of ) Physical Medicine and Rehabilitation, Mahalaxmi, Mumbai, ) residing at Moreshwar Co-op. Housing Society, 1st Floor, ) Room No. 16, Rabodi No.2, Shivaji Nagar, Thane (West) )..Petitioner versus 1. The Union of India, through the Secretary, ) Ministry of Health and Family Welfare, New Delhi. ) 2. The Director, All India Institute of Physical Medicine and ) Rehabilitation, Clerk Road, Haji Ali Park, Mahalaxmi, ) Mumbai-400 034. ).Respondents Mr. D.V. Gangal, instructed by Mr. Sandeep V. Marne, for the petitioner. Mr. Ravi Shetty with Mr. H.K. Vardhan for the Union of India. CORAM: P.B. MAJMUDAR & R.M. SAVANT , JJ. DATE: JULY 15 , 2009 ORAL JUDGMENT (Per R.M. SAVANT, J.): This petition filed under Article 226 of the Constitution of India seeks a writ of mandamus for directing the respondents to treat the letter of appointment of the petitioner dated 13th November, 2000 and office order dated 27th November, 2000, as legal and valid. The petitioner also seeks a writ of certiorari for quashing and setting aside the order of the Central Administrative -2- Tribunal, Mumbai Bench, dated 27th August, 2000 passed in Original Application No. 847 of 2000. The petitioner also seeks quashing of the proposed action of the respondents of replacing the petitioner by another candidate. The facts in brief are stated thus: 2. The petitioner was registered with the Employment Exchange and holds qualification of M.A. in Hindi Literature. It appears that the respondents sent a requisition to the Employment Exchange for sponsoring the names of the candidates for appointment to the post of Junior Hindi Translator. This was some time in the beginning of the year 1994. Since the petitioner was fulfilling the requisite qualifications, the concerned Employment Exchange sponsored the name of the petitioner. The petitioner was subjected to a written test which was held on 21st February, 1994. The petitioner competed with 50 other candidates in the said written test. Considering the petitioner’s performance in the written test, the petitioner was called for viva-voce test. The Selection Committee declared the petitioner as selected. The petitioner was thereafter appointed as Junior Hindi Translator on an ad-hoc basis by an order dated 31st January, 1994 initially for a period of 89 days in the pay scale of Rs. 1400-2300. The petitioner was continued on ad-hoc basis till 31st January, 1998 with artificial breaks of 2-3 days after each spell of employment of 89 days. The said state of affairs continued till 3rd November, 2000 on which day the petitioner submitted a representation for regularisation of her services. Pursuant to the said -3- representation, the respondents sent an offer of appointment dated 13th November, 2000 to the petitioner for regular appointment as Junior Hindi Translator. The said offer of appointment stated that the services of the petitioner would be on probation initially for a period of two years. The petitioner was thereafter by appointment order dated 22nd November, 2000 appointed on a regular basis as Junior Hindi Translator. Prior thereto, the requisite procedure in the matter of verification of the character, antecedents, etc. of the petitioner was carried out. 3. The petitioner on an apprehension that her services would be terminated in view of the fact that the respondents intended to appoint some other person in her place, filed Original Application No. 847 of 2000, inter alia, for the relief that the proposed action of the respondents in replacing her by some other person is illegal and void and for other incidental reliefs. The said Original Application was moved for interim reliefs on 8th December, 2000, when the Tribunal passed an interim order restraining the respondents from terminating the services of the petitioner till reply was filed by the respondents. The said interim order was continued from time to time and was in operation till 27th August, 2001 when the Tribunal dismissed the said original application filed by the petitioner. The Tribunal in its order has held against the petitioner on twin grounds viz. that the person who had issued the appointment letter dated 22nd November, 2000 to the petitioner was not competent to do so and also on -4- the ground that the appointment of the petitioner was not through proper channel viz. the Staff Selection Commission. We have heard the learned counsel for the parties. 4. Shri D.V. Gangal, learned counsel appearing for the petitioner, initially sought to submit that the selection through the Employment Exchange is proper selection and the same cannot be found fault with and the petitioner’s appointment on the said basis could not be termed as an irregular appointment or a back-door entry. 5. Shri Shetty, learned counsel for the respondents, on the other hand, contended that the appointment through the Employment Exchange could only be an appointment for a short-term which, in fact was in the instant case, the petitioner was initially appointed for short periods and was given artificial breaks. The learned counsel submitted that after the Staff Selection Commission was established in the year 1979, the Central Government issued a resolution and by the said resolution it was provided that appointment to Group-III and Group-IV posts could only be made through the Staff Selection Commission. The learned counsel submitted that since the petitioner has not subjected herself to the selection by the Staff Selection Commission, she could not claim to be regularly appointed. The learned counsel further submitted that even today as -5- and when Staff Selection Commission meets, the petitioner can present herself for such selection. 6. During the course of the arguments, learned counsel for the petitioner, on instructions of his client who is personally present in the court, submitted that the petitioner does not desire to press the issue as regards her selection through the Employment Exchange being a regular selection, but has no objection to subjecting herself to the selection by the Staff Selection Commission, if that is the impediment in her way for continuing in service. However, the learned counsel submitted that the fact that the petitioner has an unblemished service for the last 15 years should be given due consideration. On this submission being made by Shri Gangal, we enquired from Shri Shetty, learned counsel for the respondents, whether there are any complaints or whether any departmental proceeding is pending against the petitioner. Shri Shetty, on instructions of his instructing Officer who is present in Court, fairly submitted that there are no complaints and that the petitioner’s services have been unblemished so far. 7. In view of the statement of Shri Gangal that the petitioner would subject herself to the selection by the Staff Selection Commission, and considering the fact that the petitioner has been working with the respondents for the last fifteen years and her services were regularised by an order dated 22nd -6- November, 2000 (though the said regularisation has been disputed by the respondents), in our view, in the facts and circumstances of the present case the interest of justice would be served if , instead of subjecting the petitioner to the written test, a report of the Departmental Head be placed before the Staff Selection Commission as and when it sits to undertake the exercise of selecting candidates for the post of Junior Hindi Translator in the respondent No.2 organisation. We, therefore, dispose of this petition by issuing the following directions:- (i) The respondents to intimate to the Staff Selection Commission that they are desirous of filling up the post of Junior Hindi Translator in the respondent No.2 organization and, therefore, the Staff Selection Commission may initiate the necessary process for the same; (ii) The said process, as and when commenced by the Staff Selection Commission, to be completed by it within a period of six months from its commencement; (iii) It is clarified that the petitioner would not be subjected to a written test but a report of the Departmental Head of the petitioner as regards her services for the last fifteen years would be placed before the Staff Selection Commission. The Staff Selection Commission, whilst considering the petitioner’s case for selection, would have due regard to the said report. -7- (iv) In the event, the Staff Selection Commission clears the petitioner and selects the petitioner as Junior Hindi Translator, the respondents would take an appropriate decision as regards the date of regular appointment of the petitioner to the post of Junior Hindi Translator. This is in the context of the fact that the petitioner was appointed regularly by an order dated 22nd November, 2000. (v) It is clarified that pending the selection process, since there is an interim order operating in the above petition in favour of the petitioner, the petitioner would continue to serve as Junior Hindi Translator. 8. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. P.B. MAJMUDAR, J. R.M. SAVANT, J.