Pradeep Jagannath Talekar Vs the Union of India and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.2769 OF 2003

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 Pradeep Jagannath Talekar. ...Petitioner.

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VS.

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 1.Union of India & others. ...Respondents

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 Mr.K.K.Malpathak, for Petitioner.

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 Mr.Vinod Joshi with N.R.Prajapati, for Respondents

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CORAM: D.K.DESHMUKH &
 V.M.KANADE, JJ.

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DATED: 20th February,2008.

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P.C.:

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 1. By this petition, the petitioner challenges
 the order passed by the Central Administrative
 Tribunal in Original application no.250 of 1996. The
 petitioner was working as Tax Assistant, he became
 eligible for promotion to the post of Inspector of

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 Central Excise. In the year 1994 selection was

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 held for the post of Inspector of Central Excise.
 The petitioner was allowed to appear in the written
 test, viva voce and physical test. After the
 selection process was over, a select panel was
 declared by order dt. 13.8.1994. Seventy one

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 candidates were selected and promoted to officiate in
 grade of Inspector of Central Excise. Name of the
 applicant was not included in the aforesaid select
 panel. Thereafter, a further selection was held in
 the year 1995 for the post of Inspector of Central
 Excise. The applicant was allowed to take the
 physical test, the written test. However, he was not
 called for viva voce. The reason given was that he
 being a physically handicapped person, he was not
 eligible for consideration for promotion to the post
 of Inspector as that post was identified for being
 exempted from the purview of the post which can be
 identified as suitable for physically handicapped
 persons. Being aggrieved by his non-selection in the
 year 1994 and the action of the respondents of not
 calling him for interview in the year 1995, the
 petitioner approached the Central Administrative
 Tribunal. Before the Central Administrative
 Tribunal, the petitioner so far as the year 1994 is
 concerned has sought an order for his promotion to

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 that post claiming that he was already selected in
 the selection held in the year 1994. So far as the
 year 1995 is concerned, he asked for direction to the
 respondents to call him for interview for the year
 1995 selection. The original application of the
 petitioner was registered as Original application
 no.250 of 1996. It has been decided by the Central
 Administrative Tribunal alongwith the other connected
 original applications by a common judgment dated
 21.2.2002. So far as the application filed by the
 petitioner is concerned, so far as the year 1994 is
 concerned, the tribunal has found that he was not
 selected, the tribunal has also found that he has not
 joined those seventy one persons who were promoted in
 the year 1994 as parties to the application, and
 therefore, no relief was granted to him. So far as
 the selection for the year 1995 is concerned, the
 tribunal has declined to grant any relief to the
 petitioner by holding that it will amount to unsettle
 the settled position brought about in the year 1995
 and also because the candidates who were selected in
 the year 1995 were not joined as parties.

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 2. So far as the year 1994 is concerned, the
 learned Counsel appearing for petitioner submits that
 it is true that there was clear statement made in the

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 affidavit in reply filed on behalf of the respondent
 that for the year 1994 the petitioner was not found
 fit still as the record of the DPC was called for,
 the tribunal should have verified from that record
 whether the statement is correct or not. As the
 Tribunal has not gone through the record, this
 Court should remand the matter back to the tribunal
 for fresh consideration and hearing after going
 through that record. So far as the year 1995 is
 concerned, he submits that once the tribunal found
 that the respondents were not justified in not
 calling the petitioner on the ground that he is
 handicapped person, because he had opted to be
 considered as open category person the tribunal
 should not have declined to grant relief on the
 ground that the selected candidates for the year 1995
 have not been joined as parties. Relying on the
 judgment of the Supreme Court in the case "Post
 Graduate Institute of Medical Education and Research
 Vs. A.P.Wasan & ors, 2003(5) SCC 321" he submits
 that he had challenged before the tribunal the
 principle on the basis of which the respondents have
 not called the petitioner for interview in the year
 1995 and once the tribunal found that the principle
 was not correct and the petitioner was entitled to be
 called for the interview, then the tribunal was not

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 justified in declining further relief.

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 3. We have heard the learned Counsel appearing
 for respondents whose principal submission was that
 subsequently in the year 2003 the petitioner has been
 promoted to that post.

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 4. Now first taking up the year 1994, in
 paragraph (4)(k) of the original application a clear
 statement was made by the petitioner that so far as
 the year 1994 is concerned, inspite of fulfilling the
 standards in the physical test and thereafter he has
 been called for interview and he faired quite well in
 the interview and his service record is very good, he
 has been denied a place on the select panel is not

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 justified. The respondents filed reply and in
 paragraph 4 of the reply the respondents made a
 categorical statement that "the applicant after his
 assessment in totality did not get his place in the
 merit list. Hence, he did not get selected." This
 reply has been filed on the basis of record. In our
 opinion, therefore, in view of this clear statement,
 the tribunal was justified in not issuing any
 direction in so far as the year 1994 is concerned.

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 5. However, so far as the year 1995 is

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 concerned, the tribunal in paragraph (19) of the
 order has clearly recorded the finding that so far as
 the year 1995 is concerned, the respondents were not
 justified in not calling the petitioner for interview
 on the ground that he is a handicapped candidate when
 he had opted to compete from the general category.
 Once that finding is recorded, in our opinion, the
 tribunal could not have declined to grant
 consequential relief to the petitioner on the ground
 that the selected candidates of the year 1995 were
 not made parties before the Central Administrative
 Tribunal. The Supreme Court has considered this
 issue in its judgment in the case "Post Graduate
 Institute of Medical Education and Research Vs.
 A.P.Wasan & ors., 2003(5) SCC 321" referred to above

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 and relying on the law laid down by the Supreme Court
 in the case "The General Manager South Central
 Railway, Secunderabad and another Vs.
 A.V.R.Siddhantti and others, (1974) 4 Supreme Court
 Cases 335" has held that when challenge is to the
 policy and when the author of that policy is before
 the Court then the persons who are beneficiaries are
 not necessary party. In our opinion, therefore, when
 the policy of the respondents, of not calling the
 persons for interview who are handicapped though they
 have to be called from the open category, has been

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 challenged, the author of the policy i.e. the
 Government and the head of the department are
 necessary parties. In our opinion, therefore the
 tribunal on finding that the petitioner was entitled
 to be called for interview should have directed the
 respondents to call the petitioner for interview by
 constituting necessary DPC to find out whether the
 petitioner was entitled to be promoted to the post of
 Inspector in the year 1995. In our opinion, the
 tribunal was not justified in declining to grant
 relief to the petitioner only on the ground that the
 other candidates who have been selected have not been
 joined as parties. In our opinion, really speaking,
 the fact that the petitioner has subsequently been
 actually promoted to the post of Inspector shows that
 there was no basic infirmity in the petitioner so far
 as the promotion to the post of Inspector, Central
 Excise is concerned. In our opinion, therefore, the
 following order would meet the ends of justice:-

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 . The order passed by the Central

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 Administrative Tribunal challenged in the petition in
 relation to the petitioner is modified to the
 following extent:

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 . So far as the year 1995 is concerned, the

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 respondents shall take immediate steps to have the
 case of the petitioner for promotion to the post of
 Inspector being considered in accordance with law,
 and in case on such consideration, the petitioner is
 found fit for promotion during the year 1995,

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 the respondent shall promote the petitioner with all
 consequential benefits from that year.

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 . Petition is disposed of.

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 . Rule is made absolute accordingly. No order
 as to costs.

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 (D.K.Deshmukh, J.)

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 (V.M. Kanade, J.)

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Pradeep Jagannath Talekar v. the Union of India and Ors.

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Pradeep Jagannath Talekar v. the Union of India and Ors.

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