Central Administrative Tribunal - Mumbai
M/O Defence vs Ganesh Trambak Patole on 27 September, 2023
Central Administrative Tribunal Mumbai Bench, Mumbai MA No.736/2023 in OA No.247/2019 MA No.729/2023 in OA No.245/2019 MA No.731/2023 in OA No.248/2019 MA No.744/2023 in OA No.453/2019 MA No.742/2023 in OA No.451/2019 MA No.741/2023 in OA No.764/2018 MA No.737/2023 in OA No.437/2019 MA No.734/2023 in OA No.249/2019 MA No.727/2023 in OA No.436/2019 MA No.730/2023 in OA No.246/2019 MA No.735/2023 in OA No.452/2019 MA No.738/2023 in OA No.366/2019 MA No.739/2023 in OA No.439/2019 MA No.743/2023 in OA No.323/2019 MA No.740/2023 in OA No.438/2019 MA No.732/2023 in OA No.250/2019 MA No.728/2023 in OA No.449/2019 MA No.733/2023 in OA No.22/2019. Dated this Aslednesdas, The ax Day of September, 2023. Hon'ble Mr. Justice M.G. Sewlikar, Member (J) Hon'ble Dr. Bhagwan Sahai, Member (A) MA No.736/2023 In OA No.247/2019 Ganesh Trambak Patole ...Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.729/2023 In OA No.245/2019 Pandharinath Sukhdeo Gawande ..Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.731/2023 In OA No.248/2019 Shankar Bhagwan Palde . Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.744/2023 In OA No.453/2019 Bhausaheb Kacharu Jundre .. Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.742/2023 In OA No.451/2019 Dinkar Ashok Patole ... Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. ... Interveners/ Proposed Respondents MA No.741/2023 In OA No.764/2018 Punam Kumari ... Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.737/2023 In OA No.437/2019 Manoj Prabhakar Shinde .. Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. ... Interveners/ Proposed Respondents MA No.734/2023 In OA No.249/2019 Pravin Shivaji Gawali ... Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.727/2023 In OA No.436/2019 Rajesh Bhikari Pardhe . Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.730/2023 In OA No.246/2019 Santosh Digambar Kshirsagar ..Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.735/2023 In OA No.452/2019 Shubham Laxman Waghchoure . Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.738/2023 In OA No.366/2019 Yogesh Pandurang Chavanke . Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.739/2023 In OA No.439/2019 Sachin Chandrakant Satre . Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.743/2023 In OA No.323/2019 Sachin Govind Adke Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. ... Interveners/ Proposed Respondents MA No.740/2023 In OA No.438/2019 Suresh Dagadu Chaure ... Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. ... Interveners/ Proposed Respondents MA No.732/2023 In OA No.250/2019 Vinod Kumar ... Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. .. Interveners/ Proposed Respondents MA No.728/2023 In OA No.449/2019 Sagar Nana Borale .. Applicant Versus Union of India & Ors. .. Respondents AND Sagar Narayan Ahire & 11 Ors. ... Interveners/ Proposed Respondents MA No.733/2023 In OA No.22/2019 Sagar Narayan Patole .. Applicant Versus Union of India & Ors. ... Respondents AND Sagar Narayan Ahire & 11 Ors. ... nterveners/ Proposed Respondents Applicants' Advocates: Shri Shubham H. Misar, Shri Shubham H. Misar i/b Ms. Prachhiti Deshpande, Shri R.G. Walia and Shri Vishal Shirke. | Official Respondents Advocate: Shri R.R. Shetty alongwith Shri A.A. Garge, Shri P. Khosla. Interveners/Proposed Respondents Advocate: Shri Anant Vadgaonkar ORDERON INTERVENTION APPLICATIONS Per: Mr. Justice M.G. Sewlikar, Member (J)
All these MAs are filed by the intervenors for impleading themselves as respondents. All these MAs are being disposed of by a common order as the issue involved in all these MaAs is the same.
a7 Ad. Facts leading to these applications are that Indian Air Force had published an advertisement in Employment News to fill up various civilian posts in Group "C" at HQ Maintenance Command units through direct recruitment for Equipment Depot Air Force station Devlali (South), Nashik. The applicants in all these OAs applied for the post of Multi-Tasking Staff (MTS) and accordingly they were issued call letters for written test. Since all the applicants cleared written test, practical test and physical test, they were given appointments as Multi-Tasking Staff (MTS). They worked for almost 02 years. However, all of a sudden respondent no. 4 issued a show cause notice calling upon the applicants to explain as to why their services be not terminated. All the applicants replied to the show cause notice. Thereafter, the applicants had filed OA No. 695/2018. This OA was disposed of with directions to the respondent no.3 to pass a reasoned and speaking order, within 08 weeks from the date of receipt of certified copy of the order and not to terminate the services of the applicants before communicating to the applicants the reasoned and speaking order to be passed by respondent no. 03. However, the services of the applicants came to be terminated by the order dated 05% December, 2018 on the ground that malpractices were adopted in their selection process.
Hence, applicants have filed these OAs.
1.2. Respondents filed their reply contending therein that after completion of selection process and making appointments of all the successful candidates, a complaint was made by one Mr. Subash Ravish, an unsuccessful candidate alleging certain irregularities and corruption in the selection of Group "C" civilians in the direct recruitment at the Equipment Depot, Nashik against the said advertisement. A court of enquiry was ordered. It was found in the enquiry that (a) There were irregularities in scrutiny of application forms; (b) Non-adherence to standard operating procedure during evaluation of answer sheets; (c) Wrong Evaluation of Answer sheets; and (d) Wrongly adding of practical/skill test marks while preparing merit list. Since the entire procedure was not in conformity with the extant rules, the respondents were constrained to terminate the services of the applicants. Accordingly, the entire selection process was quashed by the competent authority by order dated 18 September, 2018. Thereafter another selection process was undertaken by the respondents. All the applicants failed in that examination.
1.3. The intervenors contend in their applications that after cancellation of the earlier selection process, new selection process was initiated by the respondents in which the intervenors have been selected. It is their contention that they are directly going to be affected by the order to be passed by this Tribunal in these OAs.
Hence, they be added as intervenors.
1.4 Applicants did not file reply to the application for intervention.
1.5. We have heard learned counsels for the intervenors, applicants and respondents.
1.6. Mr. Anant Vadgaonkar, learned counsel for the intervenors submitted that the intervenors cleared the selection process conducted afresh by the respondents. They passed written test/practical test. Their names have appeared in the select list. If the intervenors are not allowed to be impleaded, they would lose their right of being appointed. It is further contended that they have vested right to be appointed. If these OAs are allowed, the intervenors would lose their right to be appointed. They are going to be directly affected by the order passed in these OAs. Therefore, they are necessary parties.
1.7. Mr. R.R. Shetty, learned counsel for the respondent nos. 1 to 4 submitted that the intervenors would be affected by the order of this Tribunal. Therefore, they may be added in the array of parties. For this purpose, he placed reliance on following cases:
@ Udit Narayan Singh Malpaharia Vs. Additional Member Board of Revenue, Bihar and Another, 1963 Supp (1) SCR 676: AIR 1963 SC 786.
Qi) Ramrao and Others Vs. All India Backward Class Bank Employees Welfare Association and Others, (2004)
2 Supreme Court Cases 76.
Git) B. Ramanjini and Others Vs. State of A.P. and Others, (2002) 5 Supreme Court Cases 533.
(tv) State of Rajasthan Vs Ucchas Lal Chhanwal, (2014) 1 Supreme Court Cases 144.
(@) P. Lal Vs. Union of India and Others, (2003) 3 Supreme Court Cases 393.
(vi) State of Assam Vs. Union of India and Others, (2010) 10 Supreme Court Cases 408.
1.8. Learned counsels for the applicants submitted that the applicants for intervention do not have vested right to be appointed. A person whose name appears in the select list has no vested right to be appointed. Therefore, the intervenors are not necessary parties in these OAs. He placed reliance on following cases:
@ Punjab State Electricity Board and Others Vs. Matlkiat Singh, (2005) 9 Supreme Court Cases 22.10
@Qi) Commissioner of Police and Another Vs. Umesh Kumar, (2020) 10 Supreme Court Cases 448.
1.9. Mr. V.A. Nagrani, learned counsel for the applicants in OA No. 22/2019 submitted that any individual applying for any post does not get a right which can be enforced through a writ of mandamus unless and until he is selected and gets the letter of appointment. They do not have any vested right to be appointed only on the basis of their names appearing in select list and, therefore, they are not necessary parties to these OAs. He submitted that the issue involved is whether there were malpractices adopted and for the decision of it presence of the intervenors is not necessary. He placed reliance on the case of Union of India and Others Vs. Tarun K. Singh and Others, (2003) 11 Supreme Court Cases 768.
02. Mr. R.G. Walia, learned counsel for the applicants in OA Nos. 451, 437 & 366/2019 submitted that reliance placed by the intervenors on the case of Udit Naryan Singh Malpaharia (supra) is misplaced because the facts in that case were totally different. In that case licence of country liquor shop was cancelled.
It is not related to service matter and, therefore, this case has no application to the case at hand.
2.1, We have carefully considered the submissions made on by the learned counsels representing their respective parties.
2.2. Necessary party is the one without whose presence the controversy involved in the matter cannot be _ effectively adjudicated upon. Necessary party is the one without whose presence effective decree cannot be passed. Before adverting to the 11 main issue involved in these OAs, it would be appropriate to take into account the history of these OAs.
2.3. Advertisement was issued on 2"4 April, 2016 for various posts including 15 posts of Multi-Tasking Staff (MTS). The applicants and other successful candidates appeared for the written test/practical test. The applicants cleared the tests and were appointed as MTS. One unsuccessful candidate named Mr. Subash Ravish lodged a complaint alleging therein that malpractices were adopted in the selection process. A court of enquiry was ordered and court of enquiry found that; (i) There was non-compliance of various instructions, rules and guidelines and non-compliance of requirement of recruitment rules for various trades during scrutiny board and allowed a number of ineligible candidates to participate in written examination. The Scrutiny Board did not shift out candidate not possessing the essential qualifications prescribed in the advertisement. This led to selection of ineligible candidates; (ii) No instruction was issued in question paper cum answer sheet prepared for MTS trade by Selection Board regarding negative marking and accordingly no negative markings were given. Negative marking for MTS trade was prescribed in the policy; (iii) Another irregularity/illegality found was wrong evaluation of answer sheets. During the sample check of papers, it was found there were evaluation errors ranging from +24 marks to -12 marks in the answer papers of the candidates. Many of the question cum answer sheets did not have the signature of the evaluators; (iv) Another irregularity/illegality found was that the Selection Board had added marks obtained in practical test into the marks obtained in written test. The policy was to select the candidates based on their marks in written 12 examination subject to qualifying in the practical/skill test. The court of enquiry, therefore, recommended that the entire selection process be revisited afresh.
2.4. Recommendations of the court of enquiry were examined and the competent authority quashed the selection board and directed to revisit the selection process. Accordingly, show cause notices were issued to the applicants and other selected candidates. The applicants challenged the said show cause notices by filing OA No. 695/2018 in which directions were given to the respondents to pass a reasoned and speaking order within 08 weeks from the date of receipt of certified copy of the order. The respondents passed a speaking order and terminated the services of the applicants. Thereafter, the applicants filed the present OAs. These OAs were decided by this Tribunal by the order dated 7% November, 2019. This order was challenged in High Court of Bombay by preferring writ petition no. 485/2021 and 17 other petitions. These writ petitions were decided on 21%t March, 2023. The order of the Tribunal was set aside and this Tribunal was directed to decide these OAs afresh. Bombay High Court while deciding these petitions in para 14 made following observations:
"14. This court, on 6 October, 2021 had passed an interim order wherein respondent No. 3 was at liberty to carry forward the fresh selection process and to take the same to its logical conclusion; however; orders of appointment shall not be issued to the selected candidates without obtaining leave of this Court. Said interim order would continue till final decision of the Original Applications before the Tribunal"
2.5. This is how these matters have come up before us.
2.6 As per directions of the High Court of Bombay, fresh selection process was initiated in which the applicants could not 13 succeed but the intervenors succeeded in the selection process conducted afresh. During the course of the hearing, we made a query to the learned counsel for the intervenors and learned counsel for the respondents as to whether the intervenors had participated in the earlier selection process initiated vide advertisement dated o2"¢ April, 2016 and whether they were selected in the earlier selection process. Their answer was that the intervenors had participated in the earlier selection process but they were not selected. The applicants in OAs do not dispute this position.
2.7 As indicated hereinabove, court of inquiry was ordered upon the complaint of one of the candidates. We have set out the findings of the Court of Inquiry above.
2.8 The question which we are called upon to decide is whether the intervenors are the necessary parties. It is undisputed that the intervenors had appeared for the examination held pursuant to earlier advertisement but had failed. Naturally, they are the affected parties as because of the alleged irregularities, their selection was not made. Upon the complaint of one of the unsuccessful candidates, court of inquiry was ordered. Therefore, their presence is necessary for deciding the core issue whether irregularities were committed. They have right to be heard to show that malpractices/irregularities were committed during the selection process in question.
2.9. It is true that a selected candidate does not get vested right to be appointed. Hon'ble Supreme Court in para 4 in the case of Tarun K. Singh and Others (supra) held thus:
144. The question for consideration is whether the learned Single Judge of the Allahabad High Court was justified in interfering with an order of cancellation passed by the competent authority and directing that the process of selection should be completed. Needless to mention that subsequent to the order of cancellation, in view of the allegation of malpractice, the departmental authorities had held an enquiry into the maiter and the result of that enquiry revealed gross irregularities and illegalities as referred to in the judgment of the Division Bench of the Allahabad High Court. Consequently the process of selection to a public office, which stands vitiated by adoption of large-scale malpractice, cannot be permitted to be sustained by a court of law. That apart, an individual applicant for any particular post does not get a right to be enforced by a mandamus unless and until he is selected in the process of selection and gets the letter of appointment.
In the case in hand, much before the so-called list of selection was approved by the Railway Board, the order of cancellation had emanated on the basis of complaints received from so many quarters. In view of the subsequent findings of the Enquiry Committee which has gone into the matter, we have no hesitation in coming to the conclusion that the learned Single Judge of the Allahabad High Court was wholly in error in issuing the direction in question and therefore the Division Bench of the Allahabad High Court was fully justified in interfering with the said order of learned Single Judge of the Allahabad High Court. The Division Bench of the Calcutta High Court committed error in following the judgment of learned Single Judge of the Allahabad High Court. The judgment of the Division Bench of the Calcutta High Court is set aside and the judgment of the Division Bench of the Allahabad High Court is upheld. In the circumstances, we allow the Union's appeals and dismiss the appeals filed on behalf of the individual candidates. The appeals are disposed of accordingly. Any other question of law remains open.
0.3. From this decision of the Supreme Court, it is clear that no one gets a vested right for appointment by mere inclusion of name of a candidate in the select list.
3.1. In the case at hand, the question involved is whether intervenors are necessary parties. They do not get vested right to 15 be appointed simply because their names appear in the select list. However, this decision has no application to the facts of the case at hand. In the case at hand, the intervenors are going to be the affected parties, if these OAs are allowed.
3,2 In the case of Udit Narain Singh Malpaharia (supra), the Supreme Court held thus:
"g, The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it. Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, 1s a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainty be incompetent. A parly whose interests are directly affected 1s, therefore, a necessary party.
40. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order, but whose presence may facilitate the settling of all the questions that may be involved in the each case. Either one of the parties to the proceeding may apply for the impleading of such a parry or such a party may suo motu approach the court for being impleaded therein."16
3.3. Thus, the Supreme Court has ruled that the parties whose interest are directly affected are the necessary parties.
3.4. In the case at hand, the interest of the intervenors is going to be directly affected as if these OAs are allowed, they will not be given appointment. In addition to that as indicated above, these intervenors had appeared for the examination but they were unsuccessful. They have, therefore, right to participate in the proceedings to show that malpractices/irregularities were committed owing to which their selection was not made. Argument was advanced on behalf of the applicants in the OA that if these OAs are allowed, they can file another OA challenging the decision. This would amount to multiplicity of litigation.
3.5. In this view of the matter, for these two reasons the intervenors are necessary parties. We, therefore, allow all these MAs. Applicants in OA are directed to add the intervenors as respondents in their respective OAs and carry out the amendment.
(Dr. Bhafwan'Sahai) (J ustice M.G. Sewlikar) Member (A) Member (J) /ac/ lake man Law OY | an Oo is 2 |