Rani Laxmibai
Kshetriya Vs. Chand Behari Kapoor & Ors [1998] INSC 469 (9 September 1998)
Sujata
V. Manohar & G.B. Pattanaik Pattanalk, J.
The
judgment and order dated 22nd
December, 1992 of the
Division Bench of Allahabad High Court is the subject matter of challenge in
these appeals. By the said judgment the High Court directed the appellant -
bank to appoint the respondents against the vacancies of Field Supervisors and
prohibited the appellant from filling up the vacancies by making appointments
to the post of Field Supervisors from outside the list prepared in May, 1984 in
Civil Appeal Nos.2650-55 of 1993. By the said common judgment the High Court
also directed the appellant to appoint the respondent in Civil A.ppeal No. 2649
of 1993 as Probationary Officer.
The
respondents filed writ petitions contending inter alia that an advertisement
had been issued inviting applications for 35 posts of Probationary Officers
(Branch Managers ) and 35 posts of Field Supervisors on 18.7,1983.
The
respondents applied for one of the posts of Field Supervisor/Probationary
Officer and appeared at the written test conducted by the appellant for
selection. On being declared successful in the written test they were also
called for interview and finally were included in the list of selected
candidates and as such was eligible to be appointed as Field
Supervisor/Probationary Officer.
Subsequent
to the said advertisement the appellant decided to increase the number of posts
of Field Supervisors from 35 to 55 but notwithstanding the respondents
inclusion in the list of successful candidates only 26 Field Supervisors and 36
Probationary Officers were appointed. The life of the panel of successful
candidates which was to remain operative for one year was extended for a period
of six months by the Board of the bank in its meeting dated 28.3.1985. But yet
the respondents could not be appointed and on account of disgruntlement amongst
the respondents there was an agitation and ultimately an agreement was reached
between the officers of the bank and the members of the union and the bank
agreed to further extend the life of the panel until all persons included in
the list are absorbed. This agreement was reached on 16.10.1985. But in spite
of the aforesaid agreement no appointments having been made, they approached
the High Court for aecessary direction.
The
bank in its counter-affidavit denied its liability to appoint all the persons
who were in the panel as Field Supervisors or Probationary Officers. The
further stand of the bank was that inclusion of a candidate's name in the panel
does not confer an indefeasible right to be enforced by way of issuing a writ
of mandamus. The bank also took the stand that in accordance with the
resolution of the Finance Ministry conveyed to all banks the life of a panel
lapses after one year, and therefore, respondents cannot claim any nght to be
appointed as Field Supervisors or Probationary Officers. Supplementary
affidavits were also filed on behalf of the bank indicating therein that no
posts are available, and therefore question of appointment of respondents does
not arise.
The
High Court by the impugned judgment came to the conclusion that it cannot be
believed that there is no vacancy in the bank to the post of Field Supervisor.
The High Court also relying upon a notification issued by the Ministry of Home
Affairs, Department of Personnel and Administrative Reforms came to the
conclusion that list prepared does not got exhausted after expiry of one year
and it remains valid till all the candidates mentioned in the list are
appointed. According to the High Court the bank has an obligation to appoint
candidates against the declared vacancies and that claim cannot be resisted.
With these conclusions the High Court directed the bank - appellant to appoint the
respondents as Field Supervisor/Field Officer and hence the present appeal.
Mr.
Mehta, the learned counsel appearing for the appellant contended that an
applicant has no indefeasible right to be appointed even if he is selected and
included in the merit list and even if a vacancy exists in the post for which
the application had been made. But in the case in hand there did not exist any
vacancy, and therefore, the High Court committed serious error in issuing the
impugned direction to appoint the respondents against the post of Field
Supervisor, Mr. Mehta further submitted that the life of the panel which was
drawn on 2.5.1984 expired on 2.5.1985. By virtue of the decision of the Board
the said life has been extended for six months and again by virtue of the
agreement between the parties dated 13.10.1985 it stood further extended by six
months and panel expired on 30.4,1986. in this view of the matter no direction
could have been given by the High Court to issue appointment letters to the
respondents by its judgment dated 22nd December, 1992. Mr. Mehta also urged that the High
Court committed serious error in relying upon the notification issued by the
Ministry of Home Affairs, Department of Personnel and Administrative Reforms on
the question of the period for which a panel would remain alive inasmuch as the
said circular of the Home Department has no binding effect so far as the
appellant bank is concerned and on the other hand it is a circular of the
Finance Ministry which is binding and under which the life of a panel remains
valid for a period of one year from its preparation. The teamed counsel also
submitted that the conclusion of the High Court that vacancy exists is
erroneous and in arriving at that conclusion the High Court relied upon the
decision of the bank to open more branches and consequential creation of
vacancies but infact no such branch has been opened and no vacancy exists. Mr.
Mehta lastly submitted that under the constitutional scheme engrafted under
Articles 14 and 16 of the Constitution a court can at the most direct
consideration of the case of an applicant if it finds that he has been denied
of such consideration but the court cannot direct appointment of an applicant
against any post.
Mr. Rakesh
Dwivedi, the learned senior counsel appearing for the respondents did not
dispute with the legal proposition that: mere inclusion in the list of
successful candidates does not confer an indefeasible right to be appointed.
He, however, contended that the employer while filling up of the vacancies for
which advertisement had been issued has to act bona fide and not arbitrarily
and in the case in hand the High Court has granted the relief after coming to
the conclusion that there exist vacancies in the cadre and no Justifiable
reason had been advanced for not fixing up those vacancies and in such a
situation the court would be amply justified in issuing mandamus to the
employer to consider a case of appointment of the applicant who after
undertaking the test got themselves selected and are waiting for appointment.
On the basis of assertion made by the appellant in the special leave petition
filed in this court to the effect "by 31.12.85 19 more branches were
opened" Mr. Dwivedi submitted that the High Court was fully justified in
coming to the conclusion that there exist vacancies and non-filling up of those
vacancies has rightly been held to be arbitrary. Mr. Dwivedi, the learned
senior counsel further submitted that the bank not having controverted the
contention that out of the Field Supervisors who had been appointed, six of
them resigned, even though the court specifically directed to give reply, the
conclusion that there exist vacancies in the cadre of Field Supervisors is
unassailable and as such the right of the respondents to be appointed against
those vacancies cannot be arbitrarily taken away. The learned counsel
ultimately submitted that in the facts and circumstances of the case in hand
there is no infirmity in the judgment of the High Court requiring interference
by this Court.
In
view of rival submissions at the Bar the following questions arise for our
consideration:
1) Is
the High Court justified in arriving at the conclusion that there exist
vacancies in the post of Field Supervisors in the bank?
II)
Does inclusion of name in the list of selected candidates confer any right to
be appointed which could be enforced by issuance of a writ of mandamus?
Ill) What
is the period for which a list of successful pandidates remain alive and after
expiry of its life can the court direct appointments to be made from the said
list?
IV)
Did the agreement dated 13.10.1985 contain any stipulation that the list of
successful candidates would remain alive until those in the list are appointed
in the bank?
Coming
to the first question it transpires that the appellant bank opened only two
branches in the rural area in the year 1982. For extending its banks, it had
applied to the Reserve Bank of India for 30
new licenses for opening of new branches. Calculating the number of officers
which may be necessary to man these new branches, advertisement had been issued
on 18.7.1983 inviting applications for 35 posts of Probationary Officers and 35
posts of Field Supervisors.
The
appellant then applied to the Reserve Bank for licenses to open 27 more
branches in the year 1983 and during 1984 and 1985 similar applications had
been made for licenses to open 20 branches in 1984 and 17branches in the year
1985.
In
anticipation of grant of licenses by the Reserve Bank of India and consequential opening of
branches in different rural areas the appellant had taken the decision to
increase the number of posts of Probationary Officer's as well as Filed
Supervisors. But as against 94 applications for licenses for opening new
branches in fact only 46 branches had been opened and there could not be
expansion of business activity by opening new branches because of the reused
licensing policy of the Reserve Bank of India issued in October, 1985. The
appellant had categorical asserted before the High Court that there exist no
vacancy in the cadre of Fie/d Supervisor or Probationary Officer and in view of
such assertion it was for the respondents who claim the right of being
appointed to establish that in fact vacancies exist. But we do not find any
reliable materials produced by the respondents from which a conclusion could be
arrived at that there exist vacancies in the bank. The High Court, however,
entered into the arena of calculation basing upon the principle that there
should be appointment of one Field Officer for 500 accounts as was decided by
the Board in its resolution and taking into account the 46 branches which the
bank had the number of vacancies in the post of Field Supervisors must be much
more than 55 and only 26 Field Supervisors had been appointed pursuant to the
advertisement dated 18.7.1983. This process of conclusion in our considered
opinion is wholly erroneous and is not permissible for a court in exercise of
its jurisdiction under Article 226 of the Constitution. As has been stated
earlier the process of selection to different posts in the bank being made in
anticipation of opening of new branches and the requirement of officers for new
branches. But that does not mean that at the material point of time in fact any
vacancy exists and at any rate no materials having been produced by the
respondents, the court could not have come to the conclusion that vacancies
exist. It is in this connection, it would also be appropriate to notice that
whether six of the Field Supervisors appointed resigned and thus consequential
vacancies were available. We have carefully scrutinised the averments made in
the writ petitions filed by the respondents in the High Court as well as the
rejoinder affidavit filed in the said court and we do not find any assertion
has been made in that regard. From the impugned judgment, however, it appears
that in course of argument a contention in that regard had been advanced by the
respondents and the bank had been called upon to give its reply but no positive
reply had been filed the High Court jumped to the coclusion that in fact six persons
resigned and consequential vacancies were there. We, however, are unable to
sustain this line of reasoning of the High Court. The writ petitioners not
having made any averments alleging resigning of six of the Field Supervisors
after being appointed the bank had no obligation to give any reply, in course
of hearing if a contention had been raised and supporting material is produced
then the bank might have been obliged to file the specific reply but no such
material appears to have been produced by the writ petitioners before the High
Court and in such context absence of reply by the bank does not ipso facto
establishes the contention raised.
It is
too well' settled that die petitioner who approaches the court invoking the
extra-ordinary jurisdiction of the Court under Article 226 must fully aver and
establish his rights flowing from the bundle of facts thereby requiring
respondent to indicate its stand either by denial or by positive assertions.
But in the absence of any averments in the writ petition or even in the
rejoinder affidavit it is not permissible for a court to arrive at a conclusion
on a factual position merely on the basis of submissions made in course of
hearing. The High Court, therefore, in our view committed serious error in
coming to the conclusion that there existed vacancies in the post of Field
Supervisor on the materials produced before it. In fact the respondents herein
who were the petitioners in the High Court had not produced any material in support
of their stand that vacancies existed and yet appointments have not been made.
We are
of the considered opinion that conclusion of the High Court that there existed
vacancies is unsustainable in law and is accordingly set aside.
Coming
to the second question, it requires no detailed scrutiny and it is well
establish that inclusion of name in the list of successful candidates does not
confer an indefeasible right to be appointed. it has been so held in the
Constitution Bench decision of this Court in the case of SHANKARSAN DASH vs.
UNION OF INDIA, (1991) 3 SCC, 47. in the said case the court has gone to the
extent of following:
..........L.....T.......T.......T.......T.......T.......T..J
"It
is not correct to say that if a number of vacancies are notified for
appointment and adequate number of candidates are found fit, the successful
candidates acquire an indefeasible right to be appointed which cannot be
legitimately denied. Ordinarily the notification merely amounts to an
invitation to qualified candidates to apply for recruitment and on their
selection they do not acquire any right to the post. Unless the relevant
recruitment rules so indicate, the State is under no legal duty to fill up all
or any of the vacancies. "
L.....I.........T.......T.......T.......T.......T.......T..J
Mr. Dwivedi, the learned senior counsel for the respondents also did not join
issue on this principle of law. He, however, had raised the issue on the
question that there was no justifiable reason for not appointing respondents in
the vacancies which still exist and consequentially the action of the appellant
must be held to be arbitrary. But this submission is devoid of any force in
view of our conclusion on the first question that there did not exist any
vacancy in the post of Field Supervisor or Probationary Officer. In this view
of the matter, neither any right accrued to the respondents on being included
in the list of successful candidates nor their non-appointment can be held to
be arbitrary or discriminatory.
So far
as the third question is concerned, namely, for how long a pane) prepared
should be kept alive, it appears that the Government of India in the Ministry
of Finance, Department of Economic Affairs (Banking Division) by its letter
dated 30th September, 1980 had communicated to the Chairman of all regional
rural banks that the panel should normally be kept alive only for a period of
one year and i'f any deviation from the said guidelines becomes necessary in
the interest of the bank then it should be undertaken with the prior permission
of the Board of Directors and under intimation to the Government in the Banking
Division.
Notwithstanding
the aforesaid guidelines issued as it was observed that several rural banks
stiff took recourse to extending the validity of the panel for long periods
stretching over the 2/3 years on obtaining the approval of the Board, the
Ministry of Finance by its letter dated 19th September, 1983 again communicated
to the Chairman of all regional rural banks that preparation of panels to cover
the requirements of regional rural banks for 2/3 years and then extend the
validity of the panel beyond one year cannot be construed as merely a deviation
and it is doubtful if it can be considered even as being in the interest of the
regional rural bank from long term point of view. Under Section 24 of the
Regional Rural Banks Act, 1976, a rural bank in the discharge of its functions
is required to be guided by such directions as the Central Government may after
consultation with the reserve Bank give in regard to matters of policy
involving public interest. In view of the aforesaid provisions of the Act, the
directions/guidelines issued by the Central Government indicating the periods
for which the life of a panel would kept alive has a binding effect on the
bank, and therefore, in our considered opinion so far as the life of the panel
prepared by the rural banks are concerned it must be held that same remain
alive ordinarily for a period of one year. The High Court committed serious
error in relying upon the circular of the Ministry of Home Affairs, Department
of Personnel and Administrative Reforms to come to the conclusion that the
panel remains alive until all the persons in the panel are appointed. The said
conclusion is wholly erroneous and cannot be sustained.
Though
the panel ordinarily remains alive for one year but in accordance with the
guidelines of the Government of India, Ministry of Finance, it would be open to
Board to extend the said period under intimation to the Government in the
Banking Division. in the case in hand the resolution of the Board dated
28.3.1985 indicates that the life of the panel had been extended by for a
further period of six months, and therefore, after expiry of the said period it
was not open for the court to issue direction to appoint people from the said
panel.
Coming
to the next question the answer to the same depends upon the terms and
conditions of the agreement between the parties dated 16.10.1985. The minutes
of discussion as recorded no doubt indicates that some members of the Board did
express their views that the life of the panel should be extended till the
last: candidate is adsorbed by the bank as it is the moral and legal
responsibility of the bank. If further appears that it was decided to have the
concerted efforts for obtaining licenses for opening new branches but the very
agreement between the parties was to the effect that fist of successful
candidates for the appointment of Field Supervisors and Probationary Officers
declared on 2.5.1984 will be valid for a further period of six months after
31.10.1985 and that the management of the bank will appoint as far as possible
the remaining selected candidates in the aforesaid list as soon as possible.
This being the terms of agreement the conclusion is inescapable that such
agreement did not confer a right on the respondents to be appointed ^ to the
posts of Field Supervisors/Probationary Officers and the court would not be
justified to make it enforceable by issuing a writ of mandamus. The High Court,
therefore, in our considered opinion committed serious error of Jaw in issuing
the impugned directions calling upon the appellant to appoint the respondents
to the posts of Field Supervisor/Probationary Officer.
In the
premises aforesaid, the impugned judgment dated 22.12.1992 of the High Court is
set aside and these appeals are allowed, the writ petitions by the respondents
stand dismissed, however, there will be no order as to costs.
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