WP/5038/2009 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5038 OF 2009 Sanjay Baburao Alavane ... Petitioner V/s. Dilip Tukaram Katkar & Ors. ... Respondents Mrs.Neeta Karnik for Petitioner Mr.V.P. Vaidya for Respondent No.1 Mr.M.M. Malvankar for MMC CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 6, 2010 P.C.: 1. The Petition challenges the order of the Industrial Court by which it has set aside the selection of the petitioner and held that the promotion order issued to the petitioner on 16.6.2005 has illegally been issued to him. The Industrial Court has concluded that 10 marks have been arbitrarily given to the petitioner and if those 10 marks are ignored, Respondent No.1 herein would have secured the highest marks. 2. An affidavit has been filed in reply to the petition by the Corporation. It has stated therein that initially that the petitioner and Respondent applied for the post of Welder. A trade test was fixed on 17.2.2005. The Petitioner, the Respondent No.1 and one Ravi Rawal appeared for test. A notice was personally communicated according to the affiant and the trade test was held on 17.2.2005. Since no marks WP/5038/2009 : 2 : were allotted for the trade test as required by the rules and instead a grade of pass or fail was mentioned, the promotion committee in its meeting dated 6.4.2005 cancelled the marking in the trade test. A fresh notice dated 13.4.2005 was issued to the three candidates informed them that the trade test would be held again on 28.4.2005. It appears that all three persons appeared and an oral interview was also held on the same day. However, the marks for the oral interview were not allotted under the three heads, namely, personality test – 5 marks, general knowledge – 5 marks and knowledge of the subject – 10 marks. It appears that the promotion committee directed that the oral interview should be held once again and marks should be allotted in the manner aforesaid. According to the affiant an interview was held for the third time on 9.6.2005 and it was found that the petitioner had secured higher marks than Respondent No.1 and Rawal. However, both the Respondent No.1 and Rawal have filed affidavits in this Court averring that they were not called for an oral interview for the third time on 9.6.2005. The Corporation has stated in its affidavit that oral intimation was given to all three candidates. This averment is not believable in view of the fact that on the earlier two occasions the candidates were informed the date of the test in writing, well in advance. 3. In these circumstances, in my opinion, the following order would meet the ends of justice: i)The Corporation shall hold an oral interview again for all three candidates by giving them notice in writing about the date of the interview on which it would be held. Marks will be allotted in accordance with the aforesaid criteria i.e. in three parts; personality test, general knowledge and knowledge of the subject, WP/5038/2009 : 3 : in accordance with the rules governing the promotions to the post of Welder. ii)The Selection Committee will then decide on the suitability of the candidate depending on the marks obtained in the oral interview and the trade test, etc. in consonance with the rules governing such promotion. iii)Till then, the petitioner who has been continuing to work as a Welder till today and even during the pendency of the complaint will not be disturbed. iv)Although Mr.Vaidya has criticised the trifurcation of the marks especially for the personality test for a welder this aspect has not been challenged in the complaint and therefore I need not go into the matter. 4. Writ petition is disposed of in the above terms.