VISHWAS JAYAVANTRAO BHOSALE Vs. UNION OF INDIA

JUDGEMENT

(1.) IN O.A. 291/2004 (V. J. Bhosale), O.A. 308/2004 (G.B. Maware. M.K. Thombare and S.J. Koche), O.A. 335/2004 (V.R. Kale), O.A. 409/2004 (S.K. Kamble) and O.A. 486/2004 (F.V. Vesave) the relief claimed is the same and a number of arguments on both the sides are common and, therefore, they are taken up together for orders. For the sake of convenience, we shall refer to V.J. Bhosale (O.A. 291/2004) which will apply mutatis mutandis to other cases as well. Wherever in other cases separate arguments have been made, they will be mentioned accordingly.

(2.) In O.A. 291/2004 (V.J. Bhosale) the following relief has been sought:

(3.) MR. Girish Kulkarni along with MR. A.R. Joshi argued on behalf of MR. V.J. Bhosale (O.A. 291/2004) and reiterated the written pleadings. He explained that for the year 2002 the zone of consideration was 57 based on vacancy of 19 (page 37 of the Paper Book) and for the year 2003 the zone of consideration was 39 based on the vacancy of 13. As for the DPC of December, 2002 there are only two deviations from the seniority list and there is every reason to believe that the O.M. dated 08.02.2002 was followed. He vehemently argued that in 2002 there is deviation from the Regulations and in this regard he also cited 1986 (Supp) SCC 617 : 1987(2) SLJ 56 (SC) R.S. Dass v. Union of India and Ors., where it is accepted that merit is the sole basis for promotion. Counsel for G.B. Maware, M.K. Thombare, S.J. Koche (O.A. 308/2004) argued on the same lines. MR. R.R. Shetty along with MR. S.V. Marne, arguing in the case of S.K. Kamble (O.A. 409/2004) submitted that the applicant in this case is challenging the DPC held on 11.12.2003 based on which select list was notified on 29.03.2004. He argued that according to him for the year 2003 the vacancies were only 11. As the vacancies to be considered are only those which are there on the first date of January in the year the meeting is held as per Rule 5(1) of the Regulations, on 01.01.2003 there were only 11 vacancies. Shri B.S. Shinde expired in October, 2003. In the same way, the vacancy of B.D. Sanap could not have been added for 2003 selection. The names of both--B.S. Shinde and B.D. Sanap were already in the selection list published vide notification dated 25.04.2003. As per Regulation 7(iv) the select list remains in force till 31st December of the year in which the meeting of the Selection Committee was held or up to 60 days from the date of approval of the select list whichever is later. Thus, the select list published vide notification dated 25.04.2003 remains in force till 25.06.2003. Therefore, as on 01.01.2003 two vacancies againstB.S. Shinde andB.D. Sanap did not arise. If there are only 11 vacancies then the candidates in the zone of consideration at SI. No. 35, 36 and 37 (Page 34 of the paper book) in O.A. 409/2004) will not be in the zone of consideration who have been selected on the basis of outstanding merit and have jumped over others. There was bunching of vacancies of two years for the DPC which was held in December, 2003, which is not permissible under the Regulations. The Counsel wondered how ten officers i.e. respondent Nos. 4 to 13 in O.A. 409/2004 were in the grading of 'Outstanding' immediately in the next year after they were not recommended as such by the DPC for the year 2002. He has also cited acase of private respondent S.R. Daund (respondent No. 5) who was absent from duty from 26.07.2000 to 30.11.2002 (26 months) on the pretext of study leave and still he has been considered and selected. It is not understood as to how S.R. Daund was assessed as 'Outstanding' while assessing the applicant as 'Very Good' only. The Selection Committee was not apprised of the fact of respondent No. 5 absconding and a picture was painted by the State Government as if his ACRs for the said two years were not available so that the Selection Committee has to take into account the ACRs for the earlier years. 2003 'Outstanding' grading have to be interfered with and if three gentlemen at SI. No. 35,36 and 37 for the second selection are excluded, then the applicant would have been selected. Summing up, Shri Shetty stated that these three gentlemen have to be deleted on the ground of illegal extension of zone of consideration as well as illegal bunching of the vacancies.