- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2769 OF 2003 Pradeep Jagannath Talekar. ...Petitioner. VS. 1.Union of India & others. ...Respondents --- Mr.K.K.Malpathak, for Petitioner. Mr.Vinod Joshi with N.R.Prajapati, for Respondents CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. V.M.KANADE, JJ. V.M.KANADE, JJ. DATED: 20th February,2008. DATED: 20th February,2008. DATED: 20th February,2008. P.C. P.C. P.C.: 1. By this petition, the petitioner challenges the order passed by the Central Administrative Tribunal in Original application no.250 of 1996. The petitioner was working as Tax Assistant, he became eligible for promotion to the post of Inspector of - 2 - Central Excise. In the year 1994 selection was held for the post of Inspector of Central Excise. The petitioner was allowed to appear in the written test, viva voce and physical test. After the selection process was over, a select panel was declared by order dt. 13.8.1994. Seventy one candidates were selected and promoted to officiate in grade of Inspector of Central Excise. Name of the applicant was not included in the aforesaid select panel. Thereafter, a further selection was held in the year 1995 for the post of Inspector of Central Excise. The applicant was allowed to take the physical test, the written test. However, he was not called for viva voce. The reason given was that he being a physically handicapped person, he was not eligible for consideration for promotion to the post of Inspector as that post was identified for being exempted from the purview of the post which can be identified as suitable for physically handicapped persons. Being aggrieved by his non-selection in the year 1994 and the action of the respondents of not calling him for interview in the year 1995, the petitioner approached the Central Administrative Tribunal. Before the Central Administrative Tribunal, the petitioner so far as the year 1994 is concerned has sought an order for his promotion to - 3 - that post claiming that he was already selected in the selection held in the year 1994. So far as the year 1995 is concerned, he asked for direction to the respondents to call him for interview for the year 1995 selection. The original application of the petitioner was registered as Original application no.250 of 1996. It has been decided by the Central Administrative Tribunal alongwith the other connected original applications by a common judgment dated 21.2.2002. So far as the application filed by the petitioner is concerned, so far as the year 1994 is concerned, the tribunal has found that he was not selected, the tribunal has also found that he has not joined those seventy one persons who were promoted in the year 1994 as parties to the application, and therefore, no relief was granted to him. So far as the selection for the year 1995 is concerned, the tribunal has declined to grant any relief to the petitioner by holding that it will amount to unsettle the settled position brought about in the year 1995 and also because the candidates who were selected in the year 1995 were not joined as parties. 2. So far as the year 1994 is concerned, the learned Counsel appearing for petitioner submits that it is true that there was clear statement made in the - 4 - affidavit in reply filed on behalf of the respondent that for the year 1994 the petitioner was not found fit still as the record of the DPC was called for, the tribunal should have verified from that record whether the statement is correct or not. As the Tribunal has not gone through the record, this Court should remand the matter back to the tribunal for fresh consideration and hearing after going through that record. So far as the year 1995 is concerned, he submits that once the tribunal found that the respondents were not justified in not calling the petitioner on the ground that he is handicapped person, because he had opted to be considered as open category person the tribunal should not have declined to grant relief on the ground that the selected candidates for the year 1995 have not been joined as parties. Relying on the judgment of the Supreme Court in the case "Post Graduate Institute of Medical Education and Research Vs. A.P.Wasan & ors, 2003(5) SCC 321" he submits that he had challenged before the tribunal the principle on the basis of which the respondents have not called the petitioner for interview in the year 1995 and once the tribunal found that the principle was not correct and the petitioner was entitled to be called for the interview, then the tribunal was not - 5 - justified in declining further relief. 3. We have heard the learned Counsel appearing for respondents whose principal submission was that subsequently in the year 2003 the petitioner has been promoted to that post. 4. Now first taking up the year 1994, in paragraph (4)(k) of the original application a clear statement was made by the petitioner that so far as the year 1994 is concerned, inspite of fulfilling the standards in the physical test and thereafter he has been called for interview and he faired quite well in the interview and his service record is very good, he has been denied a place on the select panel is not justified. The respondents filed reply and in paragraph 4 of the reply the respondents made a categorical statement that "the applicant after his assessment in totality did not get his place in the merit list. Hence, he did not get selected." This reply has been filed on the basis of record. In our opinion, therefore, in view of this clear statement, the tribunal was justified in not issuing any direction in so far as the year 1994 is concerned. 5. However, so far as the year 1995 is - 6 - concerned, the tribunal in paragraph (19) of the order has clearly recorded the finding that so far as the year 1995 is concerned, the respondents were not justified in not calling the petitioner for interview on the ground that he is a handicapped candidate when he had opted to compete from the general category. Once that finding is recorded, in our opinion, the tribunal could not have declined to grant consequential relief to the petitioner on the ground that the selected candidates of the year 1995 were not made parties before the Central Administrative Tribunal. The Supreme Court has considered this issue in its judgment in the case "Post Graduate Institute of Medical Education and Research Vs. A.P.Wasan & ors., 2003(5) SCC 321" referred to above and relying on the law laid down by the Supreme Court in the case "The General Manager South Central Railway, Secunderabad and another Vs. A.V.R.Siddhantti and others, (1974) 4 Supreme Court Cases 335" has held that when challenge is to the policy and when the author of that policy is before the Court then the persons who are beneficiaries are not necessary party. In our opinion, therefore, when the policy of the respondents, of not calling the persons for interview who are handicapped though they have to be called from the open category, has been - 7 - challenged, the author of the policy i.e. the Government and the head of the department are necessary parties. In our opinion, therefore the tribunal on finding that the petitioner was entitled to be called for interview should have directed the respondents to call the petitioner for interview by constituting necessary DPC to find out whether the petitioner was entitled to be promoted to the post of Inspector in the year 1995. In our opinion, the tribunal was not justified in declining to grant relief to the petitioner only on the ground that the other candidates who have been selected have not been joined as parties. In our opinion, really speaking, the fact that the petitioner has subsequently been actually promoted to the post of Inspector shows that there was no basic infirmity in the petitioner so far as the promotion to the post of Inspector, Central Excise is concerned. In our opinion, therefore, the following order would meet the ends of justice:- . The order passed by the Central Administrative Tribunal challenged in the petition in relation to the petitioner is modified to the following extent: . So far as the year 1995 is concerned, the - 8 - respondents shall take immediate steps to have the case of the petitioner for promotion to the post of Inspector being considered in accordance with law, and in case on such consideration, the petitioner is found fit for promotion during the year 1995, the respondent shall promote the petitioner with all consequential benefits from that year. . Petition is disposed of. . Rule is made absolute accordingly. No order as to costs. (D.K.Deshmukh, J.) (V.M. Kanade, J.) ---