1 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. G.L.Shiriskar 4. 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 2 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 3 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 4 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 5 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 6 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.)