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2001 DIGILAW 42 (CAL)

Central Bank of India v. Achintya Kumar Roy

2001-01-31

ASHOK KUMAR MATHUR, GIRISH CHANDRA GUPTA

body2001
Judgment Gupta, J.: 1. This appeal is directed against the judgment and order dated 17.6.1994 by which the writ petition was allowed directing the Central Bank of India and Others who were the respondents thereto, to appoint persons from the panel of 1986, if at all the Bank chooses to give appointment, and that the writ petitioners would be appointed according to their position in the panel in their turn, and further in the event of appointments having had already been made from out of the subsequent panel, the writ petitioners were directed to be placed above the persons appointed from the subsequent panel. Being aggrieved by the order, the Bank has preferred this appeal. 2. The facts of the case briefly stated are as follows :- In the year 1985, the appellant-Bank requested the Employment Exchange to send names of candidates to be empanelled for recruitment of subordinate staff in the Bank. Names of candidates were sent by the Employment Exchange which included the writ petitioners. The writ petitioners appeared at the written test held on 9.2.1986. The writ petitioners were, thereafter, interviewed and a panel was prepared in which the names of the writ petitioners appeared. A copy of the panel is Annexure 'D' to the writ petition. 79 Candidates were appointed from out of the said panel. The panel was cancelled on 6.10.1988. Cancellation of the panel is under challenge in this writ petition on the following grounds :(a) No reason has been assigned for cancellation of the panel ; (b) The writ petitioners were not granted any opportunity to show-cause prior to cancellation of the panel; (c) The cancellation of the penal is discriminatory, illegal and contrary to the principles of natural Justice; (d) 16 empanelled candidates by two earlier writ petitions challenged the aforesaid cancellation of the panel. The said writ petitions were allowed. The order cancelling the panel was quashed and the Bank was directed to give appointment to all those 16 candidates by an order dated 22.11.1991. After the order dated 22.11.1991 was passed the writ petitioners requested the Bank authority to absorb them which remained unheeded; (e) The Hank after cancellation of the panel had requested the Employment Exchange to send further names since the Bank proposed to make a new panel of 125 candidates. After the order dated 22.11.1991 was passed the writ petitioners requested the Bank authority to absorb them which remained unheeded; (e) The Hank after cancellation of the panel had requested the Employment Exchange to send further names since the Bank proposed to make a new panel of 125 candidates. According to the writ petitioners, such move of the Bank was wrongful and illegal; (f) The writ petitioners have a legal entitlement for appointment by the Bank as sub-staff. On the aforesaid grounds, the writ petitioners prayed inter alia for a writ in the nature of mandamus commanding the respondents to act according to law and to appoint the writ petitioners as sub-staff. 3. The appellant- Bank in its affidavit in-opposition stated inter alia as follows : (i) The petitioners have no legal right nor any legal character of a right which may compel the Bank to give them appointment ; (ii) Mere entry in the selection list of the names of the candidates does not give any right to the petitioners to be appointed ; (iii) As per Clause 10 of the circular dated 14.7.1984, a panel is valid only for three years from the date of preparation. As such the panel expired in or about 1989 ; (iv) The Bank justified the cancellation of the panel on the ground that it transpired that out of 36 candidates who had been given appointment 13 had submitted forged and fake Employment Exchange Registration Cards and that on further enquiry it transpired that out of 32 lists which were received by the Bank from 19 Employment Exchanges, 5 lists containing 133 names were forged. In these circumstances, the Bank decided to cancel the panel and, ultimately, did that; (v) The petitioners are guilty of inordinate and unexplained delay; (vi) The Bank has started recruitment process by notifying the Employment Exchange and in doing so the Bank acted bona fide; (vii) The petitioners are not entitled to take the benefit of the judgment dated 22.11.1991 because they chose to remain dormant. 4. The writ petition was allowed by the learned Single Judge being greatly influenced by the judgment and order dated 22.11.1991, passed by another learned Single Judge allowing the writ petitions made by the said 16 empanelled candidates. 4. The writ petition was allowed by the learned Single Judge being greatly influenced by the judgment and order dated 22.11.1991, passed by another learned Single Judge allowing the writ petitions made by the said 16 empanelled candidates. As a matter of fact, the learned Single Judge has held at page 18 of his judgment "I find no reason to take a contrary view in the matter since the same question is involved here". The learned Single Judge has noticed the following findings to be found in the judgment dated 22.11.1991 ; (i) Cancellation of the panel without giving an opportunity to the petitioners who had been duly empanelled was arbitrary and contravened Articles 14 and 16 of the Constitution of India. The Bank has admitted that appointments were made from the panel even till 1.11.1988 ; (ii) On the basis of the aforesaid findings contained in the judgment dated 22.11.1991, the learned Single Judge at page 25 of his judgment held that "it is on record that the Bank prepared the panel.........and, ultimately, decided to cancel the panel which Altamas Kabir, J., found to be improper and invalid. In that view of the matter, the panel remains valid and it is for the Bank to appoint candidates from the panel. It is not open to the Bank to appoint any person from outside the panel.........." ; (iii) The learned Single Judge held that the principles decided in the case of (1) Sadasiba Swami v. State of Tamil Nadu reported in AIR 1974 SC 2271 , did not apply to the facts of the instant case ; (iv) The learned Single Judge on the point of delay held as follows : "The petitioners were under the impression that since the cancellation of the panel was set aside the appointment would be given from the panel. The petitioner in fact made representation, thereafter, which had, however, no effect. Accordingly, the petitioners moved the writ petition on 30th November, 1992. It cannot, therefore, be said that there is unusual delay in the instant writ petition or that the delay would bar relief in the instant case. Moreover, in the instant case, the delay has been explained fully on the ground that the petitioners appeared at the written test and were successful. The petitioners also appeared before the interviewing committee for viva voce and were also successful. Moreover, in the instant case, the delay has been explained fully on the ground that the petitioners appeared at the written test and were successful. The petitioners also appeared before the interviewing committee for viva voce and were also successful. The panel was prepared on 11th August, 1986. The panel was sought to be cancelled unilaterally on 6th October, 1988 without giving any information to the petitioners although they were expressly given assurance and promise of employment. The petitioners waited for their turn as and when vacancies would occur. They had the conviction that their hopes would be crowned with success. The Bank arbitrarily cancelled the panel and such arbitrariness has been struck down in the previous writ petition by Altamas Kabir, J. Thereafter, the petitioners repeatedly approached the Bank praying for Justice. Accordingly, the contention of the Bank on the question of delay fails and considering the facts and circumstances of the case, it cannot be said that the delay should bar relief to the petitioners." 5. Mr. Gupta, learned Counsel appearing in support of the appeal has advanced the following contentions : (a) The learned Single Judge took no notice of the fact that the panel was valid for three years and the same expired upon the stipulated life thereof as would appear from the Circular dated 14.7.1984, a copy whereof is annexed to the affidavit in-opposition filed by the appellant; (b) The writ petitioners chose to remain silent when the 16 empanelled candidates were litigating the propriety of the cancellation of the panel. During the pendency of the said two earlier writ petitions, an order dated 14.8.1986 was passed whereby the Bank was given liberty to prepare the next panel but were directed to keep six posts vacant for the petitioners. This order was passed in the C.O. No. 8281 (W) of 1989. Another interim order was passed on 2.11.1989 in C.O. No. 12979 (W) of 1989, whereby appointments made during the pendency of the writ applications were directed to abide by the result of the said writ petition. This order was passed in the C.O. No. 8281 (W) of 1989. Another interim order was passed on 2.11.1989 in C.O. No. 12979 (W) of 1989, whereby appointments made during the pendency of the writ applications were directed to abide by the result of the said writ petition. Both the said writ petitions were disposed of by directing the Bank authorities to give appointment to the writ petitioners in the two writ petitions and further directing that if a fresh panel has been prepared as per the requisition made on 14.2.1989 and appointments have been made therefrom the writ petitioners are to be placed above the persons appointed from the subsequent panel for the purpose of computing their seniority ; (c) Mr. Gupta contents that the judgment dated 22.11.1991 far from lending assistance to the case of the instant writ petitioners militates against their interest if any; (d) By the order dated 12.11.1991, the cancellation of the panel except for these 16 writ petitioners was upheld and the appointments made by the Bank from the fresh panel were given a seal of sanctity; (e) Mr. Gupta further contends that in any event by reason of the delay, the writ petitioners cannot be granted any relief. 6. Mr. Banerjee appearing on behalf of the writ petitioners/respondents contends that his clients have approached this Court immediately after the order cancelling the panel was quashed and, therefore, they are not guilty of any delay; the circular dated 14.7.1984 limiting life of the panel to three years was not disclosed in the earlier two writ petitions and that his clients are entitled to get the same relief as was obtained by the writ petitioners in the earlier two writ petitions as they are similarly situated and the identical facts and circumstances are involved. 7. After perusing the pleadings and hearing the parties on merits we are of the opinion that the following points arise for our determination :- A. Do the writ petitioners have any right to claim a writ in the nature of mandamus in the facts and circumstances of this case? B. Are the writ petitioners guilty of inordinate delay? C. Can the writ petitioners be granted any relief when the life of panel has expired? B. Are the writ petitioners guilty of inordinate delay? C. Can the writ petitioners be granted any relief when the life of panel has expired? D. Are the writ petitioners entitled to obtain the same relief as that of the said 16 empanelled candidates who were the writ petitioners in the earlier two writ applications on the basis of the reasoning given in the judgment dated 22.11.1991 ? 8. We propose to consider the points formulated above by us one after the other :- A. Admittedly, the names of the petitioners were there in the panel. The panel was cancelled consequent to detection of forgery. No one has disputed that the forgery was in fact detected. As a matter of fact some candidates who had been appointed were dismissed consequent to detection of forgery. In these facts and circumstances, one cannot say that the cancellation of the panel was lacking in bona fide. Then the question arises if the panel has been cancelled bona fide, what is the right left with the petitioners. In order to answer this question, one has to ask what is the right which the petitioners acquired upon being empanelled? In this regard the law stated by Their Lordships of the Apex Court in the case of (2) Shankarsan Dash v. Union of India reported in 1991 (3) SCC 47 , Paragraph 7 may be quoted :- "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. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. " 9. Once it is accepted that the candidates on their selection do not acquire any right to the post, can they apply for the same remedy by a writ of mandamus? In our view, the answer has to be in the negative. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. " 9. Once it is accepted that the candidates on their selection do not acquire any right to the post, can they apply for the same remedy by a writ of mandamus? In our view, the answer has to be in the negative. In this connection, we may refer to the case of (3) Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar reported in AIR 1962 SC 1210 , where Their Lordships stated the law as follows :- "In order that mandamus may issue to compel the respondents to do something it must be shown that the statutes impose a legal duty and the appellant has a legal right under the statutes to enforce its performance." B. In order to answer this question reference to the admitted dates is necessary. The panel was prepared on 11.9.1986. The panel was cancelled on 6.10.1988. On 14.2.1989, the appellant-Bank wrote to the Director, Directorate of Employment Exchange stating inter alia that it had been decided to prepare a panel of 125 persons in the Bank for appointment of sub-staff and a requisition for the list of candidates from the respondent No.3 was made. In the year 1989 two several writ petitions were moved, being C.O. No. 8281(W) of 1989 and C. O. No. 12979(W) of 1989 by which 16 empanelled candidates challenged the order of cancellation of the panel, which were disposed of by the judgment and order dated 22.11.1991. Each of the aforesaid events was known to the petitioners as would appear from the averments made in the petition from Paragraphs 1-24 which have been verified by the petitioner No. 1 as true to his knowledge. 10. The subject writ petition was, however, filed sometime in November 1992. It is not the case of the petitioners that they were under the impression that the writ petitions filed by the 16 empanelled candidates would enure to their benefit. There could not have been any such impression in the mind of the writ petitioners because in that event they would have intervened when the interim order dated 14.8.1989 was passed in C.O. No. 8281(W) of 1989 giving liberty to the appellant-Bank to prepare the next panel keeping 6 posts vacant. There could not have been any such impression in the mind of the writ petitioners because in that event they would have intervened when the interim order dated 14.8.1989 was passed in C.O. No. 8281(W) of 1989 giving liberty to the appellant-Bank to prepare the next panel keeping 6 posts vacant. They would have further intervened, had they carried such impression, on 2.11.1989 when an order was passed in C.O. No. 12979(W) of 1989 directing that appointments made during the pendency of the writ application would abide by the result of the same. Both these orders in fact granted liberty to the appellant-Bank to proceed with the preparation of the next panel and to make appointments in pursuance thereof subject to the right of the 16 empanelled candidates who were petitioners in those two writ petitions. 11. The present writ petition was moved almost 4 years after cancellation of the panel. The writ petitioners acquiesced in the events which took place before, after and during the pendency of the two earlier writ petitions. The present petition, in our view, was made merely by way of taking a chance after the order dated 22.11.1991 was passed allowing the two writ petitions made by the 16 empanelled candidates. We are also of the view that the petitioners by their inaction have allowed the appellant-Bank to proceed on the basis that except for these 16 candidates none other had any objection to the cancellation of the panel. In a case like this delay is certainly fatal and shall bar the remedy. In this respect, we may refer to the law laid down by Their Lordships of the Apex Court in the case of P. S. Sadasiba Swami v. State of Tamil Nadu reported in AIR 1974 SC 2271 , Paragraph 2 ;- "It is not that there is any period of limitation for the Courts to exercise their powers under Article 216 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But, it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. " 12. We may further add that the reasons assigned by the learned trial Judge for holding that the petitioners are not guilty of inordinate delay have not in the least impressed us. The learned trial Judge has not adverted at all as to what were the petitioners doing pri6t to 22.11.1991 :- C. The learned trial Judge has not adverted to this question at all although this was specifically put in defence by the appellant Bank in its affidavit in Paragraph 15 which reads as follows : "It is further stated that as per Clause 10 of the Circular No. CO : PRS: REC : 84 : 1213 dated 14th July, 1984 issued by the respondent No.1, a panel of successful candidates would be considered valid for 3 years from the preparation of the panel. It is stated that admittedly, the period of 3 years have expired in or around 1989 and, therefore, no mandamus can be issued against the Bank to give effect to the panel which is already dead long ago. A copy of the Circular No. CO : PRS : REC : 84 : 1213 dated 14th July, 1984 is annexed hereto and marked with the Letter 'A' . " 13. When the panel has come to an end by efflux of time whether the cancellation was bad or good is of no significance whatsoever. Without adverting to this aspect of the matter, the learned Single Judge has held that the panel is valid. We are, obviously, unable to endorse the view of the learned trial Judge. Reference may also be made to the case of (4) Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor reported in AIR 1998 SC 3104 , where it was held that upon expiry of the panel it was not open for the Court to issue direction to appoint people from the said panel. Reference may also be made to the case of (4) Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor reported in AIR 1998 SC 3104 , where it was held that upon expiry of the panel it was not open for the Court to issue direction to appoint people from the said panel. The relevant passage reads as follows:- "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 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." D. The learned Advocate appearing for the writ petitioners respondents has drawn our attention to the case of (5) Sub-Inspector Rooplal and Another v. Lt. Governor Through Chief Secretary, Delhi and Others reported in 2000(1) SCC 644 , and on the authority of the said judgment has contended that the relief granted to those 16 candidates should also be granted to the respondents herein. 14. The case referred to by the Counsel has no manner application to the facts of this case. In that case, the question involved was whether a Sub-Inspector who was appointed as such in the B.S.F. when transferred on his deputation to Delhi Police in the Cadre of Sub-Inspector (Executive) on being permanently absorbed in the transferred post, is entitled to count his substantive service as Sub-Inspector in B. S. F. for the purpose of his seniority in the Cadre of Sub-Inspector in the Delhi Police or not. The question which arose before the Apex Court had squarely arisen in the case of an earlier Sub-Inspector and it was held that the incumbent was entitled in law to count his seniority from the date of joining the B. S. F. and it is in these circumstances that Their Lordships held as follows :- "At the outset, we must express our serious dissatisfaction in regard to the manner in which a Co-ordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of another Co-ordinate Bench of the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Co-ordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Co-ordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but, knowingly, it proceeded to disagree with the judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of Justice under our system. This is a fundamental principle which every Presiding Officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A Co-ordinate Bench of a Court cannot pronounce judgment contrary to declaration of lay made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement......... " 15. But, the case in hand is not that short and simple. Here the question is not that of an application of law to the same facts and circumstances. Facts and circumstances are also different. The said 16 candidates were not guilty of delay and laches whereas the writ petitioners in the instant case in fact are. Those 16 candidates were not guilty of acquiescence but the present writ petitioners are. In the earlier case, the appellant-Bank did not produce the Circular which provides that the life of the panel is three years but in this case such a Circular was in fact produced. Last but not least is the fact that by the earlier judgment dated 22.11.1991, the appellant-Bank was in a sense granted liberty to prepare a fresh panel and to proceed with appointment of candidates there from reserving 16 posts vacant for the petitioners therein. Therefore, the question of granting any relief to the writ petitioners on the basis of the judgment dated 22.11.1991 does not arise. Therefore, the question of granting any relief to the writ petitioners on the basis of the judgment dated 22.11.1991 does not arise. For the reasons aforesaid, the appeal succeeds. The order passed by the learned trial Judge is set aside. The parties shall, however, bear their own costs. Mathur, C. J.: I agree.