of Bihar & Ors Vs. Amrendra Kumar Mishra
 Insc 620 (26
Sinha & Dalveer Bhandari
out of S.L.P. (Civil) No. 26370 of 2005] S.B. SINHA, J :
Bihar State Subordinate Service Selection Board issued an advertisement for
appointment of 225 posts of Live Stock Assistants in the Animal Husbandry
Department. Respondent herein pursuant to or in furtherance of the said
advertisement applied therefor. He was declared successful. On or about
21.12.1992, Respondent herein along with other successful candidates had been
recommended by the Board. Appointment letters were issued to 195 successful
candidates, out of the 200 candidates recommended by the Commisson. By a Memo.
No. 323 dated 21.02.1992, an appointment letter was sent to Respondent asking
him to join the post within fifteen days. He failed to join. Allegedly, on
20.07.1994, he requested Director, Department of Animal Husbandry, to issue an
appointment letter to him, stating :
came to know that the Department had appointed maximum candidates till date and
the appointment proceeding is going on for the remaining advertised 225 posts.
My Serial Number is more above in the recommended merit list and junior persons
to me have been appointed but I have not received any appointment letter till
date for my joining. During the period of enquiry, I have come to know that the
appointment letter of the selected candidates have been forwarded, whereas I
have not received appointment letter till now.
above facts and circumstances, I, therefore, request you to kindly pass the
appropriate order immediately for giving me appointment letter." No reply
thereto was allegedly given. He did not take any steps in regard thereto and
only on 22.06.1995, he again requested the Director of Animal Husbandry to
issue him an appointment letter in order to enable him to join the said post, stating
respect, it is to say with regard to earlier application dispatched by me in
the aforesaid subject matter that in the light of the subject matter,
advertisement by the Bihar Public Service Commission, I had recommended for
comes to know that the department had appointed maximum candidates but till
date, I have not received my appointment letter. I have been reminding to the
Department for a very long period but I have not received any appointment
letter by the department till date." A notice on similar terms was issued
by him in the year 2000. As his prayer was not acceded to, he filed a writ
petition in the High Court of Judicature at Patna, which was marked as CWJC No.801 of 2001. The State in its Counter
Affidavit categorically raised a contention that the panel remained valid only
for one year. It was contended that the purported representations made by him
in the years, 1994, 1995 and 2000 were not available in the Department, stating
it is further started that in the month of December, 1999, the petitioner had
submitted another representation in this Department, the case of the petitioner
was referred to the Law Department, Government of Bihar, for opinion and the
opinion of the learned Advocate General, Bihar was also sought and tendered. In
the light of the opinion given by the Law Department/learned Advocate General,
the representation of the petitioner was rejected vide Annexure-5 of the writ
application." The said writ petition was taken up for hearing in 2004. The
High Court allowed the same, stating :
hearing the matter on 29.6.2004 I had verbally asked learned G.P. 6 to find out
as to whether any post of Pashudhan Sahayak is vacant pursuant to which a
supplementary counter affidavit has been filed.
paragraph 56 of the affidavit it is stated that some posts of Pashudhan Sahayak
are vacant in the office.
the petitioner was already selected for this post and he could not report his
joining due to some unavoidable circumstances, in my opinion, his case should
be considered for the post of Pashudhan Sahayak which is still vacant.
given facts and circumstances of the case, therefore, the authorities concerned
are directed to accept the joining of the petitioner on the post of Pashudhan Sahayak
pursuant to his selection vide order as contained in Annexure 2 within a period
of four weeks from the date of receipt/production of a copy of this
order." A Letters Patent Appeal preferred by Appellants was summarily
dismissed by an order dated 03.03.2005.
notice was issued by this Court on 16.12.2005. Despite pendency of the Special
Leave Petition, Respondent was permitted to join his services in July 2006
subject to the decision of this Court in this matter.
post was advertised in the year 1987. The selection process was completed in
the year 1992. It may or may not be that Respondent herein had actually
received his appointment letter. It was, however, expected that he would make
enquiries thereabout; particularly when on his own showing those who were below
him in the selection list had already been permitted to join. Admittedly, he
came to know thereabout in 1994. He allegedly filed a representation and
although no reply thereto was given, he did not take any step soon thereafter.
He filed another representation only in 1995. He filed the writ petition after
a long period i.e. in 2001 when his purported representation filed in the year
1999 was rejected.
aforementioned situation, in our opinion, he did not have any legal right to be
appointed. Life of a panel, it is well known, remains valid for a year. Once it
lapses, unless an appropriate order is issued by the State, no appointment can
be made out of the said panel.
Lal and Others v. State of Jammu & Kashmir and Others [(1995) 3 SCC 486],
this Court held :
is easy to visualise that if requisition is for 11 vacancies and that results
in the initiation of recruitment process by way of advertisement, whether the
advertisement mentions filling up of 11 vacancies or not, the prospective
candidates can easily find out from the Office of the Commission that the
requisition for the proposed recruitment is for filling up 11 vacancies. In
such a case a given candidate may not like to compete for diverse reasons but
if requisition is for larger number of vacancies for which recruitment is
initiated, he may like to compete. Consequently the actual appointments to the
posts have to be confined to the posts for recruitment to which requisition is
sent by the Government. In such an eventuality, candidates in excess of 11 who
are lower in the merit list of candidates can only be treated as wait- listed
candidates in order of merit to fill only the 11 vacancies for which
recruitment has been made, in the event of any higher candidate not being
available to fill the 11 vacancies, for any reason. Once the 11 vacancies are
filled by candidates taken in order of merit from the select list that list
will get exhausted, having served its purpose." In State of U.P. and Others. v. Harish Chandra and Others [(1996) 9
SCC 309], this Court stated the law in the following terms :
to the merits of the matter, in view of the Statutory Rules contained in Rule
26 of the Recruitment Rules the conclusion is irresistible that a select list
prepared under the Recruitment Rules has its life only for one year from the
date of the preparation of the list and it expires thereafter" Yet again
in Surinder Singh and Others v. State of Punjab and Another [(1997) 8 SCC 488],
this Court stated the law thus :
Singh case was decided on the facts of that case and those facts do not hold
good in the present case.
case of Gujarat State Dy. Executive Engineers' Assn. this Court has explained
the scope and intent of a waiting list and how it is to operate in service
jurisprudence. It cannot be used as a perennial source of recruitment filling
up the vacancies not advertised. The Court also did not approve the view of the
High Court that since vacancies had not been worked out properly, therefore,
the candidates from the waiting list were liable to be appointed. Candidates in
the waiting list have no vested right to be appointed except to the limited
extent that when a candidate selected against the existing vacancy does not
join for some reason and the waiting list is still operative.
decisions noticed hereinbefore are authorities for the proposition that even
the waitlist must be acted upon having regard to the terms of the advertisement
and in any event cannot remain operative beyond the prescribed period.
be true that the appointment letter was sent by ordinary post;
even in relation thereto a statutory presumption arises. It is also well known
that postal delay by itself may not be a ground to take a sympathetic view In Maruti
Udyod Ltd. v. Ram Lal and Others [(2005) 2 SCC 638], it was observed :
construing a statute, "sympathy" has no role to play. This Court
cannot interpret the provisions of the said Act ignoring the binding decisions
of the Constitution Bench of this Court only by way of sympathy to the workmen
In A. Umarani
v. Registrar, Coop. Societies this Court rejected a similar contention upon
noticing the following judgments: (SCC pp. 131-32, paras 68-70)
"In a case
of this nature this Court should not even exercise its jurisdiction under
Article 142 of the Constitution of India on misplaced sympathy.
In Teri Oat
Estates (P) Ltd. v. U.T., Chandigarh18 it is stated: (SCC p. 144, paras 36-37)
We have no doubt
in our mind that sympathy or sentiment by itself cannot be a ground for passing
an order in relation whereto the appellants miserably fail to establish a legal
right. It is further trite that despite an extraordinary constitutional
jurisdiction contained in Article 142 of the Constitution of India, this Court
ordinarily would not pass an order which would be in contravention of a
As early as in
1911, Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd.
observed: (All ER p. 123 E) "We must be
very careful not to allow our sympathy with the infant plaintiff to affect our
judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the
search for legal principles."
recently in Ramakrishna Kamat v. State of Karnataka this Court rejected a
similar plea for regularisation of services stating: (SCC pp. 377-78, para 7)
'We repeatedly asked the learned counsel for the appellants on what basis or
foundation in law the appellants made their claim for regularisation and under
what rules their recruitment was made so as to govern their service conditions.
They were not in a position to answer except saying that the appellants have
been working for quite some time in various schools started pursuant to
resolutions passed by Zila Parishads in view of the government orders and that
their cases need to be considered sympathetically. It is clear from the order
of the learned Single Judge and looking to the very directions given, a very
sympathetic view was taken.
not find it either just or proper to show any further sympathy in the given
facts and circumstances of the case. While being sympathetic to the persons who
come before the court the courts cannot at the same time be unsympathetic to
the large number of eligible persons waiting for a long time in a long queue
seeking employment.' "In the facts and circumstances of this case, in our
opinion, the High Court should not have allowed Respondent herein to join his
services only on the basis of sympathy.
now also well settled that in absence of any legal right, the Court should not
issue a writ of or in the nature of mandamus on the basis of sympathy.
therefore, are of the opinion that the High Court committed a manifest error in
allowing the writ petition of Respondent. It is set aside accordingly. The
appeal is allowed. However, no recovery shall be made for the period he has
actually worked. No costs.