Bombay High Court
Chandrashekhar S/O Shamraoji ... vs The Honble Principal District And ... on 28 August, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:9808-DB
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s IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 919 OF 2024
Chandrashekhar s/o Shamraoji Chouragade,
Age about 43 years, Occupation - Service,
R/o S/o Shamraoji Chouragade, Hudkeshwar
Road, Pipla Phata, Near Mangalam Lawn,
Pipla, Nagpur - 440034. .... PETITIONER
VERSUS
1) The Hon'ble Principal District and
Sessions Judge, Gondia, Tahsil and
District Gondia.
2) Shailesh s/o Shiwalal Pardhi,
Aged about 42 years,
Occupation - Bailiff (In the Court of
Civil Judge, Junior Division, Tirora),
Tahsil - Tirora, District - Gondia.
3) Ku. Padma d/o Homraj Kumbhare,
Aged about 34 years,
Occupation - Junior Clerk (In the
Court of District Court, Gondia),
Tahsil and District - Gondia.
4) Nitin s/o Ramesh Chindhalore,
Aged about 42 years,
Occupation - Bailiff (In the Court of
Civil Judge, Senior Division, Gondia)
Tahsil and District - Gondia.
5) Ramesh s/o Udaram Khedkar,
Aged about 47 years,
Occupation - Service / Peon (In the
Court of 5th Civil Judge, Junior Division,
Gondia), Tahsil District - Gondia.
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6) Mukesh s/o Hiraman Bondre,
Aged about 39 years,
Occupation - Junior Clerk (In the
Court of Civil Judge, Junior Division,
Deori), Tahsil - Deori, District - Gondia.
7) Mahadeo s/o Dudhram Kewat,
Aged about 44 years,
Occupation - Service / Peon (in the
Court of Chief Judicial Magistrate,
Gondia), Tahsil and District - Gondia.
8) Smt. Laxmi w/o Aniruddha Kanoje,
Aged about 36 years,
Occupation - Junior Clerk (In the Court
of 2nd Joint Civil Judge, Senior Division,
Gondia), Tahsil and District - Gondia.
9) Raisul s/o Ashok Maladhare,
Aged about 36 years,
Occupation - Bailiff (In the Court of
Joint Civil Judge, Junior Division,
Gondia), Tahsil and District - Gondia. .... RESPONDENTS
______________________________________________________________
Mr. A.N. Rangari, Counsel for the petitioner,
Mr. F.T. Mirza, Senior Counsel, assisted by Ms. S. Mirza, Counsel for
respondent No.1,
Mr. I.N. Chaudhari, Counsel for respondent Nos.2 to 9.
______________________________________________________________
CORAM : NITIN W. SAMBRE &
ABHAY J. MANTRI, JJ.
DATE OF RESERVING THE JUDGMENT : 01.08.2024
DATE OF PRONOUNCEMENT OF THE JUDGMENT : 28.08.2024
JUDGMENT :
(Per : Abhay J. Mantri, J.)
Rule. Rule made returnable forthwith. Heard finally with
consent of the learned Counsel for the parties.
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2. The petitioner has invoked the jurisdiction of this Court to
recall/review the judgment and order dated 07-11-2023 passed by this
Court (Coram: A.S. Chandurkar and Abhay J. Mantri, JJ.) in Writ
Petition No.8546/2019, to the extent of setting aside his selection and
appointment on the post of Bailiff.
3. The petitioner's case is that on 24-08-2010, he was
appointed as a 'Sweeper' in respondent No.1-District Court, Gondia. On
07-12-2019, a Memorandum/Notice was published for conducting the
written examination for the post of Bailiff. On 13-12-2019, the Advisory
Committee of District and Sessions Court, Gondia, held a meeting to
decide the criteria for grant of promotions for the post of Bailiff as per
Paragraph 580 of the Civil Manual. Accordingly, the minutes of the
Advisory Committee were prepared. In the said meeting, the
Committee had unanimously decided to fill the said post abide by the
judgment in the case of Rajendra Kumar Srivastava & Ors. vs. Samyut
Kshetriya Gramin Bank & Ors. reported in AIR 2010 SC 699 as per the
principle of 'seniority-cum-merit' basis. It was also unanimously
resolved that the benchmark should be fixed at 60 out of 100 with the
condition that the candidates must obtain a minimum of 8 marks in the
written examination, and those candidates will be considered for
promotion.
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4. Accordingly, on 13-12-2019, a written test was conducted,
and finally, vide meeting dated 20-12-2019, the Advisory Committee
prepared the chart of total marks obtained by the candidates, including
the marks of the written examination, and selected six candidates who
had secured the highest marks amongst the eligible candidates. In
pursuance of the said minutes, respondent No.1 issued the Office Order
and appointed six employees as a Bailiff. Being aggrieved by the said
order, respondents No.2 to 9, i.e. the petitioners in Writ Petition
No.8546/2019, have made representation to respondent No.1 for
reconsideration of the selection process/order of promotion to the
employees as per seniority-cum-merit basis and justice should be given
to them. However, respondent No.1 had not considered their
representation. Therefore, they have preferred a Writ Petition
challenging the said order of the promotion of respondent Nos.3 to 4
therein as Bailiff. In the said selection process, the petitioner was
promoted to Bailiff, and his name was reflected in the said selection list
at Serial Number 4.
5. Respondents Nos.2 to 9 have challenged the Bailiff's
selection list in Writ Petition No.8546/2019, wherein the petitioner was
not made as a party. After considering the material on record, this
Court vide order dated 07-11-2023 partly allowed the petition, the
operative part of which thus reads as under :
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"a) The writ petition is partly allowed.
b) Office orders dated 20-12-2019 and 31-12-2019
issued by respondent No.1-the then Principal District and
Sessions Judge, Gondia, are partly set aside to the extent of
selection and appointment of respondent Nos.2 to 4 and one C.S.
Chouragade to the post of Bailiff.
c) Respondent No.1 is directed to select and
appoint/promote the candidates who have achieved the
benchmark with a minimum of 8 marks in the written
examination as per their seniority in the said list to the post of
Bailiff."
6. Thus, it seems that by the said order, the petitioner's
selection and appointment to the post of Bailiff was set aside. Hence,
the petitioner has preferred this writ petition.
7. It is pertinent to note that respondent No.1-District Court
has chosen not to file a reply despite offering the opportunity. In such
an eventuality, it would be proper to draw an inference that they have
no grievance about the petitioner's claim.
8. Respondents Nos.2 to 9 have filed their reply and
contended that the petitioner had not sought any relief against them.
Therefore, they urged to dismiss the petition against them.
9. Mr. A.N. Rangari, learned Counsel for the petitioner, has
vehemently contended that the petitioner was not a party to the Writ
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Petition No. 8546/2019 and, without hearing him, passed the
judgment and order. Therefore, on the sole ground, the judgment and
order dated 07-11-2023 is liable to be set aside against the petitioner.
He further canvassed that there was no combined seniority list of Class
4 employees working on the establishment of the District Court;
Gondia was placed before the Court in the earlier Writ Petition
No.8546/2019. However, the list of the employees as per the gradation
in Class 4 was produced before the Court. Accordingly, in Class 4, the
employees' list was arranged as, firstly, the names of the Peons, after
that, Watchmen, and lastly, the Sweepers category. Consequently,
considering the same, the judgment and order dated 7-11-2023 was
delivered. He has also drawn our attention to the combined seniority
list of Class 4 employees at Annexure-F, which he obtained under the
Right to Information Act from the District Court establishment. Hence,
he submitted that as per the said seniority list, the petitioner is at Serial
Number 6 in the seniority of the Class 4 employees' category. While
delivering the judgment and order dated 07-11-2023, the combined
seniority list was not produced before the Court, and, therefore,
considering the gradation-wise list produced before the Court, the
Court has delivered the judgment. Hence, he has prayed to recall the
judgment and order to the extent of the petitioner.
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10. He invited our attention to paragraph 10 of the judgment
of the Constitution Bench of the Hon'ble Apex Court in the case of
Shivdev Singh & Others v. State of Punjab & Others reported in AIR 1963 SC
1909, and urged that this Court can review its own order to prevent the
miscarriage of justice or to correct the grave and palpable errors while
passing the order. Thus, he urged the petition to be allowed to the
extent of the petitioner.
11. Mr. F.T. Mirza, learned Senior Counsel for respondent No.1,
has not disputed the combined seniority list produced by the petitioner
at Annexure-F. Therefore, he submitted that an appropriate order may
be passed.
12. Mr. I.N. Chaudhari, learned Counsel for respondents Nos.2
to 9, has submitted that the petitioner has not sought any relief against
respondents Nos.2 to 9, and, therefore, he has urged to dismiss the
petition against them.
13. We have appreciated the submissions of the learned
Counsel, we have gone through the record and the authority relied
upon by the learned Counsel for the petitioner. Having considered the
same, before adverting to the merits of the case, it is relevant to
highlight the "Maxim"
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"Actus curiae neminem gravabit."
The meaning of the Maxim is that :-
"There is no higher principle for the guidance of the court
than the one that no act of Courts should harm a litigant,
and it is the bounden duty of Courts to see that if a person
is harmed by a mistake of the Court, he should be restored
to the position he would have occupied but for that
mistake."
14. At the outset, it appears that respondent Nos.2 to 9, while
challenging the minutes of the meeting of the Advisory Meeting dated
20-12-2019 and office order dated 31-12-2019, have not produced the
correct combined seniority list of Class 4 employees before the Court.
During the hearing, a query was made about the seniority list of the
Class 4 employees to the learned Counsel for both parties, but neither
party satisfactorily replied to the query nor produced the accurate
seniority list before the court. In fact, it was incumbent on the
petitioners therein, i.e. respondents Nos. 2 to 9 herein as well as
respondent No.1 in the said petition and this petition, to produce a
correct common seniority list of Class 4 employees before the Court
while determining the authenticity of selection and appointment order
for the post of Bailiff.
15. It is to be noted that in paragraph 8 of the said judgment,
we have observed that the petitioners have not assisted this Court
while ascertaining the exact facts in dispute. Therefore, as per the
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available record produced before the court, i.e. the list of employees by
arranging the names as per the gradation in Class 4 employees, we
have discussed the said fact in paragraphs Nos.15 to 19 and 21 of the
said judgment and held that the petitioner's name was shown at Serial
Number 19 in the said list of the employees and, therefore, he was held
not eligible to appear for the selection process. Since, as per paragraph
Nos. 577, 578 and 580(2)(a) of the Civil Manual, the vacancies are to
be filled by considering the trice number of employees according to
their seniority. As per the notice, the process was initiated to fill up five
posts for the bailiff instead of six, and later on, they selected six
employees. However, for the selection of six employees, the Advisory
Committee called nineteen employees for the said selection process,
and the petitioner's name was at Serial Number 19; therefore, his
selection and appointment were quashed and set aside. Since he was
not eligible as per the paragraphs referred to above. To fill up six Bailiff
posts, as per Clause 2(a) of paragraph 580 of the Civil Manual, a ratio
of 1:3 (1 each to 3) employees is required, i.e. for six posts, eighteen
employees were needed, and the name of the petitioner was at Serial
Number 19. Therefore, this Court held that the petitioner was not
eligible to appear for the selection process and quashed his selection
and appointment.
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16. However, by producing an accurate combined seniority list
of Class 4 employees at Annexure-F, which is not disputed by
respondent No.1-Establishment of District Court, Gondia or other
respondents, there is no reason to disbelieve the said seniority list. The
list clearly demonstrates that the petitioner is at serial number 6 in
seniority. Thus, it appears that the said judgment was delivered since
wrong information was provided by the petitioners therein or non-
supplying accurate information by the petitioners and respondent No.1
therein. In paragraph 8 of the said judgment, this Court has observed
the non-furnishing of correct information by the parties to the Court to
come to the proper conclusion. On that basis, if any judgment has been
delivered, then it can be reviewed.
17. As per the maxim referred to above, no act of the Court
should harm a litigant, and it is the bounden duty of the court to see
that if a person is harmed by a mistake of the court, he should be
restored to the position he would have occupied previously.
18. Thus, it reveals that based on the incorrect information
supplied by the petitioners in Writ Petition No.8546/2019, it appears
that this Court has delivered the judgment that caused prejudice to the
rights of the petitioner as factually, the said gradation list was incorrect.
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However, as per the accurate 'combined seniority list', the petitioner
was at serial number 6 in seniority. Therefore, he was eligible to appear
for the bailiff's selection process. He had secured 74 marks and stood
at Serial Number 4 in the said selection list. Thus it seems that he
achieved the required benchmark. Therefore, he was held eligible and
entitled to select and appoint to the post of Bailiff. As a result, it
reveals that on the basis of 'seniority-cum-merit' principle, the
petitioner was promoted on the post of bailiff. However, by virtue of
the judgment and order dated 07-11-2023 delivered in Writ Petition
No.8546/2019, the rights of the petitioner were affected by passing the
said order as no opportunity of hearing was given to him. Hence, it
would be proper to modify the judgment. It further appears that the
said judgment and order caused a miscarriage of justice and was
delivered without offering any opportunity for a hearing. As such, in
our view, the said judgment is liable to be modified to the extent of the
petitioner.
19. In view of the aforesaid discussions and for the reasons
recorded above, we have no hesitation in concluding that the judgment
and order dated 07-11-2023 passed in Writ Petition No.8546/2019 is
not binding on the petitioner. Therefore, we deem it appropriate to
pass the following order;
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(a) Writ Petition is partly allowed.
(b) The judgment and order dated 07-11-2023 delivered in
Writ Petition No.8546/2019 are hereby modified by
quashing and setting aside the same to the extent of the
petitioner's selection and appointment to the post of Bailiff.
The rest part of the judgment shall remain intact.
(c) As a sequel, the order dated 31-01-2024 passed by
respondent No.1 is hereby quashed and set aside to the
extent of the petitioner and restore him on the post of the
Bailiff as per the office orders dated 20-12-2019 and
31-12-2019 and pay all consequential benefits in
accordance with law.
20. Rule is made absolute in the above terms.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 31/08/2024 16:08:13
