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1995 DIGILAW 422 (CAL)

Ashoke Kumar Banerjee v. State of West Bengal

1995-11-29

Arun Kumar Dutta

body1995
JUDGMENT Arun Kumar Dutta, J.: The three Writ Petitioners (hereinafter referred to as petitioners) have prayed the Court for issue of "a writ of and/or in the nature of Mandamus commanding the Respondents Nos. 1 and 2 to cancel, rescind and/or withdraw the impugned Memo. dated 1st June, 1990 issued by the respondent No.2, being Annexure 'H' herein, and further directing the Respondents more specifically Respondent No.2, to consider the case of the Petitioners afresh and thereby re-publish the Gradation List by placing the petitioners after Respondent No.3, and further forbearing the Respondents Nos. 1 and 2 to take any steps or further steps pursuant to the Gradation List now in existence," along with other reliefs prayed for therein, for the reasons stated and on the grounds made out therein. 2. The Writ Application is resisted by the contending Respondents. 3. That the three Petitioners herein were duly appointed as Typists/Copyists and are presently working as such in the Criminal Court at Uluberia under the Judgeship at Howrah is not disputed. The State Government appears to have issued a Memorandum, being No. 7191-F dated 23.10.1975, marked Annexure 'A' to the Writ Application, directing that the piece-rated Typists and Copyists attached to the different Civil, Criminal, Police and Revenue Courts may be brought over to the regular Salaried Establishment on the terms and conditions indicated therein. In order to give effect thereto, a Panel had been prepared by the District Judge, Howrah, for promotion of Typists and Copyists of his Judgeship to the post of Lower Division Clerks on the basis of a Selection Test held on 13.8.1977. The Petitioners had duly appeared at the said Selection Test and were found suitable, and their names were included in the Panel, along with the Respondent No.3, Asim Kr. Banerjee, and others. Out of the said Panel, the said Respondent No.3 was duly appointed to work as a Lower Division Clerk on and from 1.9.1977, presumably on the basis of vacany then existing. Banerjee, and others. Out of the said Panel, the said Respondent No.3 was duly appointed to work as a Lower Division Clerk on and from 1.9.1977, presumably on the basis of vacany then existing. The State Government had thereafter issued a Circular, being No. 13587 (20) dated 30.9.1977, marked Annexure 'B' to the Writ Application, clearly stating therein that "it has since been decided that no Typist or Copyist should be appointed as L.D. Clerks until further Orders." The Petitioners and others in the aforesaid Panel could not be appointed as Lower Division Clerks in view of the ban so imposed by the aforesaid Circular dated 30.9.77. The said ban does not appear to have been lifted as yet. The aforesaid Panel prepared by the District Judge of Howrah in 1977 could not thus be said to be in existence and in force so long the said ban remains in force. The Petitioners could not conceivably, therefore, have been appointed/promoted as Lower Division Clerks on the basis of the said Panel in view of the aforesaid ban imposed by the State Government by the aforesaid Circular dated 30.9.1977. The Petitioners' Representations to the State Government and to the District Judge, Howrah, for being appointed/promoted as Lower Division Clerks further appear to have been rejected by them, as appearing from the Annexures 'C' & 'D' to the Writ Application. 4. On a Writ application filed thereafter by the Petitioners herein, being Civil Rule No. 8700(W) of 1979, disposed of by a learned Single Judge of this Court by Judgement and Order dated 12.3.1982, the Petitioners were given liberty to apply to the Appropriate Authorities 'for being considered for appointment to the post of Lower Division Clerk with the direction upon the latter to consider the same sympathetically according to law, clearly indicating therein that the Petitioners' Case may also be considered "whenever any vacancy may arise" appearing from Annexure 'B' to the Writ application. There is no indication whatsoever in the aforesaid Order that the Petitioners should be considered for appointment to the post of Lower Division Clerks on the basis of the previous Panel of 1977. There is no indication whatsoever in the aforesaid Order that the Petitioners should be considered for appointment to the post of Lower Division Clerks on the basis of the previous Panel of 1977. The Petitioners were merely given liberty thereunder to make fresh applications to the Authorities concerned in terms thereof, to be considered by the latter, depending upon availability of vacancy, as indicated with more than usual clarity therein by the expression "whenever any vacancy may arise". 5. In compliance with the aforesaid Order of this Court dated 12.3.1982, the District Judge, Howrah, by his Order No. 34/M dated 29.4.1982, being Annexure 'F' to the Writ application, had directed the filling up of the 12 existing vacancies (clearly implying the vacancies existing as on 29.4.1982, i.e. the date of the Order) in the manner indicated therein. Among the said 12 existing vacancies, 8 vacancies were directed to be filled up from among the 8 Typists/Copyists, including the 3 petitioners herein, "mentioned in the said Panel of 1977." There is nothing in the said Order to indicate that the 8 Typists/Copyists were to be appointed on the basis of the said Panel of 1977, which could not be said to be in force for the reasons hereinabove undrafted. 6. By his subsequent order on the following day, being Order No. 35/M dated 30.4.1982, marked Annexure 'F' to the Writ Application, the District Judge, Howrah had appointed the 8 Typists/Copyists, including the three Writ Petitioners herein, as temporary Lower Division Clerks in terms thereof with effect from 10.5.82, in view of the findings recorded in his aforesaid earlier Order dated 29.4.82, "on condition that the period of their service as Typists/Copyists shall not be counted towards seniority in the Clerical posts "in terms of the aforesaid direction of this Court. The aforesaid two Orders dated 29.4.1982 and 30.4.1982 of the District Judge, Howrah being, what they are, would at once seem to give the clearest and conclusive indication that the Petitioners had not been appointed as temporary Lower Division Clerks thereunder on the basis of the aforesaid Panel of 1977, to be effective from 1977 onwards, as sadly sought to be contended by them. The Petitioners having been appointed as Temporary Lower Division Clerks with effect from 10.5.1982 in terms of the aforesaid Order of the District Judge, Howrah, dated 30.4.1982 could not conceivably, therefore, claim seniority over those appointed before them alter the appointment of the Respondent No.3, the way claimed by them, when they were not even born as Lower Division Clerks, merely on the ground that they were empanelled in the aforesaid Panel of 1977, along with the Respondent No.3; more particularly when the said Panel could not be said to be in existence or in force after the ban imposed by the aforesaid Government Circular dated 30.9.1977. The decisions in Dr. Rashlall Yadav vs. State of Bihar and Others (1974) 5 SCC, Union of India and Others vs. Ishwar Singh Khatri and Others, 1992 SCC (L&S) 999, P. Mahendran and Others vs. State of Karnataka and Others, AIR 1990 SC 405 , and W.B. Schedule Cases and Scheduled Tribe Development Finance Corporation and Others vs. Asis Kr. Samanta and Another 96 CWN 1170, referred to by the learned Advocate for the Petitioners, seem to me to be of little avail to them as the said decisions do not appear to have any bearing, in the facts and circumstances of the instant matter. 7. Even assuming that there had been no ban in terms of the Annexure 'B' to the Writ application and that the Panel of 1977 was in existence and in force, the mere empanelment of the Petitioners in the Panel of 1977 did not create in them any right to be appointed as Lower Division Clerks, as vainly claimed by them. It would be pertinent in this context, to refer to the decision of the Supreme Court in State of Bihar and Others vs. The Secretariat Assistant S.E. Union and Others, AIR 1994 SC 736 where it has been held as follows: "A person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary." 8. Empanelment is at the best a condition of eligibility for purposes of appointment and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary." 8. The Supreme Court in Jatindra Kumar and others vs. State of Punjab and others, (1985) 1 SCC 122 had held that Selection/recommendation by the Selection Committee does not confer upon the persons selected/recommended any right to be appointed. So also held in Shankarsan Dash vs. Union of India, (1991)3 SCC 47 wherein it has further been observed that a candidate included in the merit list has no indefeasible right to appointment even if vacancy exists. But the State while filling up the vacancies has to act bona fide and not arbitrarily. It may be noted in this context that there is not the merest and faintest whisper by the petitioners herein that there was any such of bona fide or mala fide on the part of the District Judge, Howrah, in the matter of appointments made by him to the posts of Lower Division Clerks from time to time after the appointment of the Respondent No.3, prior to their (Petitioners') appointments with effect from 10-5-1982. 9. The Supreme Court in State of Haryana vs. Subash Chandra Marwaha and others, (1974)3 SCC 220 , while considering whether entry of name of a candidate in the list or existence of vacancies gives him right to be appointed, has, inter alia, held that there is no constraint that the Government shall make an appointment (to a post) either because there are vacancies or because a list of candidates has been prepared or is in existence. The list is merely to help the State in making appointments. The stage for selection and appointment comes thereafter. The existence of vacancies does neither give a legal right to a candidate to be selected for appointment. The examination/interview is for the purpose of showing that a particular candidate is eligible for consideration. The mere fact that a candidate's name appears in the list does not entitle him to a Mandamus that he be appointed. In order that Mandamus may issue to compel an Authority to do something, it must be shown that the Statute imposes a duty on that Authority and the aggrieved party has a legal right under the Statute to enforce its performance. In order that Mandamus may issue to compel an Authority to do something, it must be shown that the Statute imposes a duty on that Authority and the aggrieved party has a legal right under the Statute to enforce its performance. The Supreme Court has further held in the said decision that it may happen that the Government for financial or administrative reasons may not fill up any vacancy. In such a case the candidates, even the first in the list, will have no right to be appointed. It would seem worth bearing in mind that the State Government in the instant Case had decided (presumably for administrative reasons) that no Typist or Copyist should be appointed as L. D. Clerk until further orders, as intimated by their Circular dated 30/9/1977, being Annexure 'B' to the Writ application. That being so, the petitioners could not claim to have been appointed notionally after the appointment of the respondent No.3 on the basis of the aforesaid Panel of 1977. It would further pretty clearly appear from the Application of the 13 private Respondents, Rabindra Nath Basak and others, for vacation/modification of the interim order, read with the Gradation List, being Annexure 'B' thereto, that they had all been appointed as Lower Division Clerks in the Judgeship of Howrah from 239-77 to 18-4-1981, from time to time, prior to the appointment of the Petitioners as temporary Lower Division Clerks with effect from 10-5-1982, excepting the Private Respondent No.26 Adhir Chandra Ghosh, who was appointed as L.D.C. on 24-1-1983, after the appointment of the Writ petitioners herein. The Writ petitioners could not clearly claim seniority over the aforesaid private Respondents who had been appointed as L.D. Clerks prior to them for the reasons amply and apparingly made clear above. 10. In the premises above, the Writ petition should clearly fail, as it must; and be accordingly dismissed. The Rule be thus discharged. All interim orders passed in the matter stand vacated. The Application filed by the 13 private Respondents, Rabindra Nath Basak and others, be also accordingly disposed of. 11. In the facts and circumstances of the matter, I make no order as to costs. Application dismissed.