Bombay High Court
Union Of India And Another vs Praveen Ambadas Karalkar And ... on 21 July, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.3299 of 2005
1] Union of India,
through General Manager,
Central Railway, Mumbai 440 001.
2] Divisional Railway Manager,
Central Railway, Kingsway, Nagpur. .... Petitioners.
Versus
1] Praveen Ambadas Karalkar
Wireman Gr.I, under Senior Section Engineer
(Elect-Genl), Central Railway, Nagpur.
2] Makarand K. Dhapke,
C/o Senior Section Engineer (A&C),
Central Railway, Nagpur. .... Respondents.
Shri R.S. Sundaram, Advocate for petitioners.
Shri A.P. Wachasunder, Advocate for resp. no.2.
Nobody for respondent no.1.
Coram : B.P. Dharmadhikari &
Kum. Indira Jain, JJ.
st
Dated : 21
July, 2016.
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ORAL JUDGMENT [Per B.P. Dharmadhikari, J.]
Heard learned Advocate Shri Sundaram for the petitioners.
Nobody appears for respondent no.1- contesting respondent.
This Court has while issuing notice in the matter on 29-08-2005
granted stay to the judgment of the Central Administrative
Tribunal, Mumbai Bench, Mumbai, Camp Nagpur (hereinafter
referred to as "the CAT") and that has been confirmed while
issuing rule in the matter on 08-03-2006. After reading of
impugned judgment dated 27-10-2004, it is apparent that,
respondent no.1 was about to reach the age of 45 years in
1997 and, therefore, may have retired after attaining the age
of superannuation.
2] Learned Advocate Shri Sundaram for the petitioners
submits that the selection process initiated on 13-06-1996 for
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the post of Chargeman Grade-B was required to be given up
because all the eligible cadres were not included in the said
process. Hence, on 10-01-1997, while cancelling it, the fresh
selection process was initiated. Respondent no.1 participated
in it but failed in written examination. Respondent no.2 before
this Court succeeded in it. Being aggrieved by that failure,
Original Application No.1041 of 1999 was filed before the CAT
by respondent no.1. Learned Advocate Shri Sundaram for the
petitioners submits that as the respondent no.1 participated in
later selection process and taken a chance of his selection, the
CAT could not have permitted the respondent no.1 to fall back
upon cancelled selection process. He further submits that no
mala fides are alleged in the decision of the petitioners to
cancel the selection process and the CAT has avoided to record
any finding on it. He also attempts to distinguish the judgments
looked into by the CAT. In the facts of those cases, all
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candidates found eligible were excluded from the same
selection process which continued further.
3] With the assistance of learned Advocate Shri Sundaram
for the petitioners, we have looked into the impugned judgment.
Its perusal reveals that though there was a challenge to
cancellation of selection process initiated on 13-06-1996 and
the CAT has mentioned it, there is no specific finding upon the
correctness or otherwise of decision taken by the present
petitioners to give it up. Respondent no.1 had cleared the
written test conducted in pursuance of the old Notification
issued on 13-06-1996 and he also appeared for Viva Voce. It
is at that stage, the petitioner learnt about the error and
cancelled the entire selection process. If such a decision was
to be questioned, it was incumbent for respondent no.1 to
demonstrate some oblique motive or mala fides. The Original
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Application filed before the CAT by respondent no.1 does not
contain any such plea. The CAT has also not recorded any
finding about the correctness or otherwise of the decision to
cancell the selection process taken by the petitioners.
4]
The respondent no.1, thereafter, has participated in fresh
selection process. He failed in two subjects and after the result
was declared he has chosen to approach the CAT. The CAT
has found mere participation in later selection process by
respondent no.1 did not disqualify him from challenging it. It has
looked into his contention that he was about to reach the age of
45 years and therefore was about to become overage for
consideration. He also stated that he was under immense
mental pressure and therefore could not perform well in the
later examination. All these contentions could have been given
due weightage if the decision of the petitioners to cancel the
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earlier selection process is found to be vitiated. The CAT has
accepted that earlier selection process was vitiated. With the
result, it has upheld the later selection process and still
proceeded to make an exception in the case of respondent
no.1. Though the performance in second selection process is
looked into by the petitioners, it has directed that the
performance of respondent no.1 in earlier selection process
should be considered. Thus, this direction to revive the dead
selection process is unsustainable. In various judgments which
the CAT has looked into, the selection process was not given up
and amends were allowed by the employer in very same
selection process. Conclusion that entire selection process was
not vitiated is reached in those matters due to facts available
there. Here, it cannot be said that entire earlier selection
process was not vitiated. Thus, these judgments are not
precedents for the adjudication of this controversy.
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5] In this situation, we find the impugned direction issued by
the CAT unsustainable. In the result, its judgment dated
27-10-2004 is quashed and set aside. Original Application No.
1041 of 1999 is dismissed. Rule is made absolute accordingly.
No costs.
JUDGE JUDGE
Deshmukh
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on :
(Deshmukh) 26/07/2016
P.A. to the Hon'ble Judge.
