A.S. Doctor JUDGMENT
D.K. Upadhyaya, C.J.
1. It has been informed by the learned Counsel representing the Respondents that Respondent No.9 has died.
2. Learned Counsel representing the Petitioners states that considering the subject matter of this Writ Petition, no cause of action survives as against Respondent No.9 and accordingly, he may be permitted to delete Respondent No.9 from the array of Respondents.
3. We, thus, direct that Respondent No.9 shall be deleted from the array of Respondents.
4. Necessary amendment shall be carried out by learned Counsel representing the Petitioners during the course of the day. Reverification is dispensed with.
5. We, now, proceed to adjudicate the Writ Petition finally with the consent of the learned Counsel for the parties.
6. Heard Mr. R. R. Shetty, learned Counsel representing the Petitioners and Ms. Vaishnavi M. Gujarathi, learned Counsel appearing for the Respondents.
7. By instituting the present proceedings of this Writ Petition, the Petitioners have challenged the judgment and order dated 15th June 2009 passed by the Mumbai Bench of the Central Administrative Tribunal (hereinafter referred to as the "Tribunal") whereby the Original Application No.278 of 2008 filed by the Respondents has been allowed and a direction has been issued to the Petitioners to consider the Respondents for recruitment as unskilled labourers pursuant to the advertisement dated 19th November 2005 from the stage at which the recruitment process is said to have been cancelled on 11th February 2008.
8. It has been argued by the learned Counsel for the Petitioners that such a direction issued by the Tribunal is completely illegal for two reasons. Firstly, that merely because the Respondents were permitted to participate in the interview and physical efficiency tests, they will have no vested right to be appointed and secondly, it has been argued on behalf of the Petitioners that whether to fill-in or keep a vacancy in abeyance is the prerogative of the employer and by a judicial order the employer cannot be compelled to fill-in a vacancy. In this view, the argument is that the impugned direction issued by the Tribunal is not sustainable.
9. In addition to the aforesaid, it has also been submitted by learned Counsel for the Petitioners that there existed valid and reasonable grounds for the Petitioners to cancel the recruitment process and as a matter of fact the recruitment process initiated pursuant to the advertisement dated 19th November 2005 was cancelled with a view to give effect to the judgment passed by the Tribunal in Original Application No.684 of 2006 which was filed with a prayer for absorption of Group-D employees. It is, thus, argued that no exception can be taken by the Respondents to the cancellation of recruitment process.
10. Per-contra, it is submitted by learned Counsel representing the Respondents that the Tribunal, while deciding the Original Application No.684 of 2006, by means of impugned judgment and order dated 6th June 2007, has rightly allowed to continue the recruitment process initiated pursuant to the advertisement dated 19th November 2005 and that against the available vacancies if a direction has been issued by the Tribunal for completing recruitment process, no fault can be found with such a direction issued by the Tribunal.
11. We have given our anxious consideration to the competing submissions made by the learned Counsel for the respective parties and have also considered the records available before us on this Writ Petition.
12. By means of an advertisement dated 19th November 2005, 121 vacancies of unskilled labourers were advertised pursuant to which the Respondents submitted their Applications. Accordingly, the Respond........