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Judgment
A.H. Joshi, J.
1 Rule is made returnable forthwith and is heard finally by consent.
2 This is an application for review of Order dated 18th November, 2008 passed by this Court [Coram: D.K. Deshmukh & P.B. Varale, JJ] dismissing the Writ Petition No. 1927 of 2007.
Petitioner had preferred a Special Leave Petition[Civil]. Annexure-B to the Review Application indicates that the said SLP was withdrawn, stating that Petitioner would like to move High Court for review of its order which was impugned in Special Leave Petition, as the High Court has , failed to take into account certain vital facts.,
After this Review Application was filed, as the Petitioner believes to have discovered some new material, he has amended the Review Petition.
Heard learned Adv. Mr. P.D. Meghe for the Petitioner and learned Asstt. Govt. Pleader Mr. T.A. Mirzafor the Respondents at length.
The arguments, which are advanced in support of Review Application, are summarized and dealt with in each Para hereinafter.
SUBMISSION:
This Court has dismissed the Writ Petition on the ground that holding of HSC qualification was considered by this Court on the representations of the Respondents to be , a minimum qualification, which is totally erroneous proposition.
DISCUSSION AND CONCLUSION:
In so far as this aspect is concerned, foundation of Petitioner, s submission is totally erroneous. By no stretch, it can be held that this Court has considered that HSC is a minimum qualification. The observation of this Court is totally misread by the Petitioner. Sole conclusion, which emerges from first sentence of Order dated 18th November, 2008, is that the Petitioner has failed to point out that Service Rules do not authorize authorities from insisting on HSC qualification while selecting, the candidate for promotion to the post of Clerk.
We, therefore, reject in entirety Petitioner, submission, as it is based on total misreading of order passed by this Court.
SUBMISSIONS:
The Rules in vogue lay down SSC as a minimum qualification and, therefore, applying Draft Rules to consider that HSC is the minimum qualification is based totally on erroneous foundation.
A N D
It is evident from the letter written by the Registrar of Industrial Court indicating that HS Cist a necessary qualification for appointment/promotion to the clerical post.
DISCUSSION AND CONCLUSION:
[a] It is a matter of fact that the 1991 Govt. Resolution provides that SCC shall be a minimum qualification. High Court has proposed to amend it by making HSC as the minimum qualification.
[b] It is nowhere shown that candidates having passed SSC are not refused from consideration.
[c] What has been done is that candidates having HS Qualification are preferred and hence appointment of the candidates having SSC has been declined.
[d] The letter [Annex.K to the petition] says that the Petitioner cannot be , appointed, , and it does not say that Petitioner, s candidature cannot be considered.
[e] Petitioner, s thrust that the rule of having HSC is enforced in absence of amendment in the Recruitment Rules as an essential qualification is, thus, totally misconstruction of the Petitioner.
[f] While SSC is a minimum qualification, HSC could be desired, or candidates with HSC qualification can be preferred.
[g] Had it been a case that Petitioner, s candidature was not considered, it would have been a different matter.
[h] Documents on record suggest that Petitioner, candidature is declined for appointment, not from consideration.
SUBMISSION:
Candidate junior to Petitioner, namely one Shri V.D. Bhute, who holds SCC qualification, was promoted in 1998.
DISCUSSION & CONCLUSION:
Promotion of Shri V.D. Bhute dates back to 1998. Present Writ Petition is of the year 2007. Even in that petition, promotion of Shri Bhute was not challenged.
In the Review, the challenge to Mr. Bhute, promotion or citing it as a discrimination is a complete afterthought.
Admittedly, when Mr. Bhute was promoted, the need of insisting on HSC as a desired qualification or to be preferred was not at all in contemplation.
SUBMISSION:
Shri A.S. Sheikh Chand, though junior to Petitioner, was promoted in 1999 without having HS Qualification.
DISCUSSION AND CONCLUSION:
In so far as promotion of Mr. A.S. Sheikh Chand is concerned, it stands, more or less, on the same footing on which promotion of Mr. Bhute is done.
Moreover, admittedly Mr. A.S. Sheikh Chand is senior to the Petitioner and he cannot and does not have a grievance about it.
SUBMISSIONS:
As averred in Para 11 of Writ Petition, one Shri Nishitkar, who holds HSC qualification, was appointed to the post of Clerk in the nomination category.
AND
The Petitioner is discriminated, as other candidates having qualification of SSC are appointed and promoted.
DISCUSSION AND CONCLUSION:
Petitioner, s claim that Mr. Nishitkar is only SS Cis factually incorrect.
In the Affidavit-in-Reply of the State filed in the Writ Petition, it is stated on oath, and is not controverter by the Petitioner that Shri Nishitkar has passed B.A. [Second Year], possessed English Typing @ 40WPM and Marathi Typing @ 30 WPM, and passed MS CIT. Shri Nishitkar does not, in any manner, possess qualification less than HSC. Moreover, he belongs to Nomadic Tribe category. Even otherwise, his candidature is not comparable with the Petitioner.
In so far as other two candidates seen at page 12of the Review Petition, namely Shri D.S. Palande and Smt.
S.S. Vichare are concerned, admittedly, they possess the qualifications of B.A. and HSC respectively, and Petitioner cannot make a grievance about their appointment.
In the light of what we have discussed in this Judgment, the Petitioner has exerted to re-argue the Writ Petition in the guise of arguing the Review Application.
We have scrutinized the facts, as it was strenuously urged that the order passed by this Court suffers from the defect of error apparent on the face.
Upon dealing with all the points, we find that Petitioner is labouring under a feeling of injustice, which is completely misconceived and which does not, in any manner, satisfy the test of error apparent on the face of record.
In the circumstances, Review Application does not deserve indulgence, and is dismissed.
Rule is discharged with costs.