Bombay High Court
Vitthal Babarao Kapure vs Small Causes Court, Mubmai ... on 30 August, 2021
Bench: S.S. Jadhav, S. V. Kotwal
7.wp.9836.2019 FINAL.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9836 OF 2019
Vitthal Babarao Kapure ... Petitioner
V/s.
Small Causes Court, Mumbai through ... Respondents
Registrar and Anr.
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Mr. Rajeshwar Ganesh Panchal a/w. Mr. A.R. Kori for the Petitioner
Mr. Kiran Bapat I.by Ms. Leena Patil for the respondent nos. 1 and 2.
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CORAM : SMT. SADHANA S. JADHAV &
SARANG V. KOTWAL, JJ.
DATED : AUGUST 30, 2021.
P.C. :
. Heard the learned counsel for both the parties.
2. Rule. Rule made returnable forthwith with the consent of
the parties.
3. The petitioner herein pursuant to the advertisement dated
28th March 2018 issued by the Small Causes Court had applied for the
post of 'Hamal'.
4. The petitioner belongs to the reserved category i.e.
Scheduled Caste. The total 90 posts were reserved in the category of
'Hamal'. The petitioner had cleared the written examination. The
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petitioner also cleared screening test/ test of activeness. The petitioner
was called for the interview on 16th August 2018. The petitioner
secured 3 marks out of 10 and hence he was declared as 'Fail'.
5. The main contention of the petitioner is that the authority
i.e. Small Causes Court has not conducted the selection process as per
the rules and therefore grave injustice is done to the petitioner. It is
submitted that clause 39 of the advertisement reads thus ' the members
committee would fix the benchmark for the category of selection.
However, in the category in which the benchmark is not fixed for the
selection it shall be 35% of the marks and there would be relaxation of
5% to the candidates belonging to the reserved category'.
6. On 16th August 2018, the advisory committee had fixed the
benchmark of interview as 40% for open category and 35% for other
category. Thus for the interview, the benchmark was 3.5 out of 10. In
the interview, the petitioner has obtained 3 marks out of 10 marks and
hence he was declared as 'Fail'.
7. The learned counsel for the petitioner vehemently submits
that the resolution dated 16th August 2018 was passed after the
issuance of the advertisement. It was not brought to the notice of the
candidates appearing for the interview. If the benchmark for the
interview is not considered, then passing marks for open category
candidates would be 3.5 out of 10 marks and the petitioner could
claim 5% more relaxation for reserved category. Thus for him passing
marks would be 3 out of 10. He is thus entitled to be selected for the
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post of 'Hamal'.
8. The learned counsel for the respondent has submitted that
only those candidates who had successfully gone through the stages of
written examination and other stages were called for the interview.
However, he has not successfully passed through the stage of interview.
9. It is also submitted that the passing of the resolution was
not an after thought. It is submitted that before the interviews were
conducted the advisory committee has passed the resolution at 11.00
a.m. on 16th August 2018 and the benchmark was fixed.
10. The learned counsel for the petitioner had placed reliance
upon the judgment of the Apex Court in the case of 'K. Manjusree V/s.
State of Andhra Pradesh and Another'1. In the said case the benchmark
was fixed after the interview was conducted and therefore the Apex
Court had observed as follows:-
'.....introduction of the requirement of minimum marks for
interview, after the entire selection process (consisting of
written examination and interview) was completed, would
amount to changing the rules of the game after the game
was played which is clearly impermissible'.
11. In the facts of the case the said citation would be of no
relevance in the present case because the benchmark of interview was
fixed prior to conducting the interview. Out of 90 posts, the authority
has selected 86 persons and had given them appointment, whereas 4
posts are reserved for physically handicapped persons.
1 (2008) 3 SCC cases 512
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12. From the above discussion, the petition being sans merits,
deserves to be dismissed. However, the petitioner is at liberty to apply
for the same post as and when fresh advertisement is published.
(SARANG V. KOTWAL, J) (SMT. SADHANA S. JADHAV, J)
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