Nikhil Santosh Chaudhari vs The State Of Maharashtra And ...
2021 Latest Caselaw 12540 Bom

                                                                    908-CA-9675-19.odt


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                 CIVIL APPLICATION NO.9675 OF 2019
           WITH REVIEW APPLICATION (ST.) NO. 20517 OF 2019
                          IN WP/6064/2014

                     NIKHIL SANTOSH CHAUDHARI
                               VERSUS
              THE STATE OF MAHARASHTRA AND OTHERS
                                   ...
                Advocate for Applicant : Mr. Anil S. Bajaj
         AGP for Respondent Nos. 1 & 2 : Mrs. V. N. Patil Jadhav
          Advocate for Respondent No.3 : Mr. P. Katneshwarkar
                                   ...

                                    CORAM : S. V. GANGAPURWALA AND
                                            R. N. LADDHA, JJ.

DATE : 03rd SEPTEMBER, 2021

PER COURT :

Civil Application No.9675 of 2019 :-

1. Heard learned counsel for applicant, learned AGP and

the learned counsel for respondent No.3.

2. For the reasons stated in the application, application

for condonation of delay is allowed.

3. Civil Application is disposed of.

Review Application (St.) No.20517 of 2019 :-

4. The applicant claims review of the order dated 05-09-

2018 passed in Writ Petition No.6064 of 2014. The present

applicant had filed original application before the Maharashtra

Administrative Tribunal for operating the wait list. The tribunal

908-CA-9675-19.odt

dismissed the original application filed by the petitioner.

Aggrieved thereby, the petitioner filed writ petition bearing Writ

Petition No.6064 of 2014. Under order dated 05-09-2018, the

writ petition is allowed on the following terms :-

"I. The order passed by the tribunal is set aside.

II. Respondent Nos. 1 and 2 shall consider the petitioner and respondent No.3 for appointment to the post of Measurer from the OBC category as the persons from the OBC Ex-serviceman and OBC part time are not available, pursuant to the said advertisement. Same shall be considered within a period of four weeks.

III. The writ petition is, accordingly, allowed. No costs."

5. The present review application is filed on the premise

that respondent No.3 had not applied to the department for

considering his case from the wait list. The wait list can be

operated only for one year. The petitioner had approached the

Tribunal well within a period of one year and respondent No.3 had

not approached the Tribunal within a period of one year. His case

could not have been considered, as such the operative part of the

order whereby it is directed that respondent Nos. 1 and 2 shall

consider petitioner and respondent No.3 for the appointment to

the post of Measurer from the OBC category, as the persons form

the OBC Ex-serviceman and OBC part time are not available, be

908-CA-9675-19.odt

reviewed.

6. Mr. Bajaj, learned counsel, submits that this Court

would not have directed that respondent No.3 should be

considered, because respondent No.3 had not approached the

Court within a period of one year. The wait list lapses after one

year. The selection process is of the year 2012 and respondent

No.3 approached the Court in the year 2015. This aspect needs to

be considered. The learned counsel for petitioner relies upon the

judgment of the Allahabad High Court in case of Manoj Kumar

Pandey Vs. State of U.P. and another reported in (2007) 2 All.L.J.

692.

7. According to the learned counsel for respondent No.3,

respondent No.3 was a party to the original application before this

Court. Also, the original petitioner misrepresented the Court.

Respondent No.3 has not given no-objection for appointing the

original petitioner. However, the petitioner played a fraud upon

the Court and respondent No.3. Respondent No.3 has 109 marks

and the petitioner has only 108 marks. The matter was before the

Tribunal wherein the present respondent No.3 was also a party.

8. We have considered the submissions canvased by the

learned counsel for the parties.

9. On merits, respondent No.3 is more meritorious than

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the petitioner. The review cannot be dealt with as an appeal in

disguise. The scope of review is in narrow campus.

10. We have, under judgment and order dated

05-09-2018, decided the matter on merits, after the same was

remitted by the Hon'ble Apex Court. It is not disputed that

respondent No.3 is a party to the litigation since the inception.

Respondent No.3 is also entitled to put forth his case, being a

party in the original application and before this Court. The

petitioner is also a wait listed candidate. Under the order of which

review is sought, we have not directed to give appointment to the

candidates, but have given directions to respondent Nos. 1 and 2

to consider the petitioner and respondent No.3 for appointment.

The eligibility would be considered by respondent Nos. 1 and 2.

Admittedly, respondent No.3 is more meritorious than the

petitioner.

11. In the case of Manoj Kumar Pandey (supra) referred to

by the learned counsel for petitioner, the wait listed candidate had

approached the Court after the lapse of the operation of the wait

list and had sought directions for appointment. In the present

case, in the original application filed by the petitioner before the

Tribunal, respondent No.3 was already a party in the proceedings

and naturally the Tribunal would be required to consider the case

908-CA-9675-19.odt

put forth by the petitioner and respondent No.3 also. In view of

that the judgment relied upon by the learned counsel for

petitioner would not be applicable to the present case.

12. In the light of the above, review application is rejected

and disposed of.

(R. N. LADDHA, J.) (S. V. GANGAPURWALA, J.)

SVH