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2008 DIGILAW 725 (CAL)

Sadananda Chakraborty v. UNION OF INDIA

2008-07-22

P.S.NARAYANA

body2008
Judgment :- S.P. TALUKDAR, J. (1.) GRIEVANCES of the writ petitioner, as ventilated in the present application, relates to alleged illegal/arbitrary action on the part of the respondent-authorities in not appointing him in the post of Watch and Ward Staff. (2.) THE relevant facts of the present case may briefly be stated as follows: -The petitioner was born on 16th July, 1964. He joined the Indian Army in 1982 and retired from the same in 1999. He got his name enrolled before the zilla Sainik Board, Burdwan. On 8th September, 2000, the respondent/bank approached the Zilla Sainik Board to sponsor the names of eligible candidates for recruitment in the post of Watch and Ward Staff. The Board sponsored the names of eligible candidates on 29th of September, 2000. It was on 8th September, 2004 that the Finance Ministry laid down guidelines regarding eligibility criteria for recruitment in such post. On 13th December, 2004 the petitioner was appointed as temporary Lathi Guard in the respondent/bank. On 16th September, 2005 the respondent/bank again requested the Zilla Sainik board to sponsor the names of ex-servicemen for filling up the vacant posts. The panel was prepared on the basis of interview held on 23rd May, 2006. On 30th November, 2006 the Bank authority informed the Sainik Board about the absorption of 17 candidates. The petitioner and another candidate were left out. Respondents No. 9 and 10 being age-barred candidates, they should not have been appointed and in that event, the petitioner could come within the first 17 candidates. In response to this, the respondent/bank filed an affidavit-in-opposition, inter alia, denying all the material allegations made by the writ petitioner. It was specifically claimed that the appointment of respondent Nos. 9 and 10 is legal, valid and not liable to be questioned before any court of law. Respondent-authority denied that the petitioner was discriminated against. It was alleged that the termination of the service of the petitioner was also legal and valid. It was claimed that the Security Guard and Watch and Ward Staff belong to the subordinate cadre. They are guided by the Rules and Regulations and Circulars applicable to them. For the purpose of recruitment of Security Guards and watch and Ward Staff, applications are entertained only from Ex-servicemen who have been honorably discharged from armed services. It was claimed that the Security Guard and Watch and Ward Staff belong to the subordinate cadre. They are guided by the Rules and Regulations and Circulars applicable to them. For the purpose of recruitment of Security Guards and watch and Ward Staff, applications are entertained only from Ex-servicemen who have been honorably discharged from armed services. The concerned recruitment Rules of the respondent/bank provided for relaxation in upper age limit for the purpose of recruitment of Ex-servicemen. The concerned Rules of the respondent No. 4 also provide for relaxation of age in respect of temporary employees being considered for permanent absorption such as relaxation equivalent to the temporary service already rendered. If a temporary employee was within the prescribed age at the time of initial entry and is being considered for permanent absorption, he will be eligible for relaxation of age. The requirement and/or vacancy of the Security Guards and Watch and Ward Staff of the respondent No. 4 depends upon the cash retention capacity of the concerned branch Office and various other criteria which may change as per BPR initiative of the respondent No. 4. The temporary engagement does not create any right to be employed and it is terminable as and when the requirement is over. In November, 2000 following the interview held on 10th, 13th, and 14th November, 2000, the respondent No. 4 prepared a panel 57 candidates including the petitioner and the respondent Nos. 9 and 10 for recruitment of Security Guards and Watch and Ward Staff for Burdwan Region, Asansol and its Zonal Office at burdwan. The said empanelled candidates were offered temporary engagement in the bank service. In this process, out of the aforesaid 57 number of empanelled candidates, only 37 candidates were offered permanent appointment upto 19th August, 2004 leaving 20 number of empanelled candidates including the petitioner, respondent Nos. 9 and 10. On 30th October, 2002 the controlling office of respondent No. 4 asked the Zonal Office to follow the guidelines given by the hon"ble Supreme Court in the case of Madan Lal vs. State of J and K and Gujarat state Deputy Executive Engineers Association vs. State of Gujarat while recruiting in the posts of Sweepers/watchmen/guard (Staff Subordinate). (3.) FOLLOWING the interview held on 23rd May, a panel was prepared in November, 2006 containing the names of 19 persons wherein the names respondent Nos. (3.) FOLLOWING the interview held on 23rd May, a panel was prepared in November, 2006 containing the names of 19 persons wherein the names respondent Nos. 9 and 10 as well as that of the petitioner appeared as against serial Nos. 13, 14 and 19 respectively on the basis of the marks obtained in physical test and interview. Out of the said 19 persons, 17 candidates were given appointment in accordance with rank in the said panel and in accordance with the need of the respondent in phased manner. The petitioner was offered engagement on temporary basis on 29. 11. 2006. He was posted at Khoshbagan branch of the respondent No. 4. After 31st March, 2007, the cash retention value of the said branch was modified and it was brought within the Burdwan Branch. Thereby, the scope of engagement of the petitioner got extinguished and his temporary engagement was terminated. There were only 17 permanent posts and the same were filled from the panel. The petitioners name however, continues to remain in the panel which is valid for one year (November, 2007) and as such, the present writ application is premature. The respondent/bank categorically denied that there had been any illegality committed by the respondent/authority in selecting respondent Nos. 9 and 10. (4.) THE writ petitioner filed an affidavit-in-reply. It was specifically alleged that such authority cannot enhance the upper age limit of 45 years as laid down in the circulars at their sweet will only to give appointment to their favoured persons. It was further claimed that on the date of termination of the writ petitioner i.e., on 11th April, 2007, he was not posted as Khosebagan Branch as had been falsely claimed by the respondent-authority. Since the respondent-authority proposed to cancel the panel after giving appointment to the favoured candidates, the petitioner had to rush to this court for redressal of his grievances. (5.) THE crux of the controversy is how far the authority could justify its action in appointing private respondent Nos. 9 and 10, ignoring the claim of the writ petitioner. (6.) MR. Ganguly, appearing as learned Counsel for the writ petitioner, invited attention of the court to a communication dated 8th September, 2000. It relates to recruitment of Watch and Ward Staff. It contains the following clause: - "age. 9 and 10, ignoring the claim of the writ petitioner. (6.) MR. Ganguly, appearing as learned Counsel for the writ petitioner, invited attention of the court to a communication dated 8th September, 2000. It relates to recruitment of Watch and Ward Staff. It contains the following clause: - "age. Within the age limit 18-26 years with the relaxation permissible for ex-servicemen (number of years served in the Armed Forces) plus 3 years and for SC/ST candidates 5 years maximum age 45 years. " (7.) IT is not in dispute that the writ petitioner worked as temporary guard at the Khosebagan Branch of the State Bank of India from 16. 12. 2005 to 3. 7. 2006. Reference was made to Annexure P-6 at page 61 and 62. The said two pages contain the particulars of candidates sponsored for the post of Armed Guard in state Bank of India (Burdwan Region). The name of the writ petitioner is there as against Serial No. 8. The copy of the list of successful candidates, which is at page 68, reveals the names of private respondents, Sambhu Chakraborty and Sribas chowdhury as against Serial Nos. 12 and 14 respectively. The name of the writ petitioner is as against Serial No. 19. It was submitted by Mr. Ganguly that if the appointment of those two private respondents is cancelled, the writ petitioner in view of his vertical upward movement would be of Serial No. 17 in the list. Since the appointment was given to 17 candidates, the writ petitioner would, thus, find an entry. (8.) IT was then submitted that the date of birth of respondent No. 9 is 30. 9. 1959 and that of respondent No. 10 is 6. 1. 1959. It was alleged that the respondent No. 3, i.e. , Burdwan Zilla Sainik Board and respondent No. 11, i.e. , hooghly Zilla Sainik Board were thus not at all justified in sponsoring their names for consideration for recruitment along with other eligible candidates including the writ petitioner. Annexure P-5 at page 59 dated 16. 9. 2005 refers to the relevant correspondence in connection with recruitment of Watch and Ward staff. The respondent/bank while approaching the Secretary, Zilla Sainik Board, burdwan by the said letter dated 16. 9. 2005 sought the names and particulars of 20 Ex-servicemen who possess the eligibility criteria. Annexure P-5 at page 59 dated 16. 9. 2005 refers to the relevant correspondence in connection with recruitment of Watch and Ward staff. The respondent/bank while approaching the Secretary, Zilla Sainik Board, burdwan by the said letter dated 16. 9. 2005 sought the names and particulars of 20 Ex-servicemen who possess the eligibility criteria. It was indicated that "the age limit would be 18-26 years with a relaxation permissible for Ex-servicemen (number of years served in the Armed Forces plus 3 years and for SC/ST candidates 5 years) maximum age 45 years. " Mr. Ganguly emphatically submitted that there was no scope to enhance the maximum age limit of 45 years. Mr. Ganguly, as learned Counsel for the petitioner, referred to the decision in the case of Ramana Dayaram Shetty vs. The International Airport authority of India and Ors. , reported in AIR 1979 Supreme Court 1628. This was in the context of his submission regarding the role of Welfare State. There is, no doubt, that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found. In the said decision the Apex Court observed that the Government, in a welfare State is regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights etc. The government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. The Apex Court in the said decision referred to the article on "the New property" by Professor Reich wherein it was observed "that Government action be based on standards that are not arbitrary or unauthorized". It was held that the (9.) GOVERNMENT cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. There is no denial that a democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal. The activities of the Government have a public element and, therefore, there should be fairness and equality. There is no denial that a democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal. The activities of the Government have a public element and, therefore, there should be fairness and equality. The Apex Court in the said case further observed "the power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc must be confined and structured by rational, relevant and nondiscriminatory standard or norms and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory". Though much was submitted by Mr. Ganguly regarding role of the respondent/bank as an instrumentality of the State, I do not think any detailed discussion in this regard is relevant for adjudication of the dispute raised in the present case. (10.) IN the case of Joseph Antony Lazarus (DEAD) BY LRS. Vs. A. J. Francis., reported in (2006) 9scc 515, the Apex Court observed that the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. It was submitted by learned Counsel for the respondent/bank that the termination order of the writ petitioner had only been challenged by way of supplementary affidavit, though the writ petitioner had challenged appointment of the private respondents. It was contended that the writ petitioner used to work at Khosbagan Brach. According to learned Counsel, the candidates whose names appeared as against Serial Non. 1 to 17 were absorbed but the writ petitioners name was against Serial No. 19. It was further contended that there is no upper age limit for those in temporary service. Then again, it was submitted that termination of service can only be challenged before Tribunal. Learned Counsel for the State-respondent adopted the argument advanced on behalf of the respondent/bank. 1 to 17 were absorbed but the writ petitioners name was against Serial No. 19. It was further contended that there is no upper age limit for those in temporary service. Then again, it was submitted that termination of service can only be challenged before Tribunal. Learned Counsel for the State-respondent adopted the argument advanced on behalf of the respondent/bank. (11.) LEARNED Counsel for the respondent/bank relying upon the decision in the case of Dhananjay Malik and Ors. vs. State of Uttaranchal and Ors. , reported in 2008 (2) Supreme 328 submitted that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. If the rules are silent on any particular point, Government can very well fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. It was further contended that the writ petitioner having responded to the selection procedure without any demur is estopped and precluded from questioning the selection process on being unsuccessful. (Ref: Marripati Nagaraja and Ors. vs. The Government of Andhra pradesh and Ors., 2007 (7) Supreme 274 ). (12.) ON the behalf of the respondent/bank, it was contended that if a temporary employee was within the prescribed age at the time of initial entry in the Banks service and Bank is required to give him a chance for permanent absorption under the law, as provided, relaxation in upper age is permitted after examining the merits of each case with prior approval of Central Office. It is significant to mention that the respondent/bank in the affidavit-in opposition specifically claimed that the name of the petitioner is still in the panel which is valid for one year (November, 2007). It was submitted in that context that the instant petition is premature and speculative. (13.) IN course of submission, learned Counsel for the respondent/bank referred to the Circular dated 9th February, 1987 in support of his contention that there was scope for relaxation of upper age limit. For Ex-servicemen candidates, it was three years plus service in Armed Forces. It was submitted in that context that the instant petition is premature and speculative. (13.) IN course of submission, learned Counsel for the respondent/bank referred to the Circular dated 9th February, 1987 in support of his contention that there was scope for relaxation of upper age limit. For Ex-servicemen candidates, it was three years plus service in Armed Forces. It was further submitted that if a temporary employee was within the prescribed age at the time of initial entry in the Bank service and Bank is required to give him a chance for permanent absorption under the law, as provided, relaxation in upper age is permitted after examining the merits of each case with prior approval of Central Office. From the materials available on record, I thus find it difficult to brush aside the stand taken on behalf of the respondent/bank that in certain situations, it was within the competence of the authority to relax the upper age limit. It also cannot be denied that the writ petitioner after participating in the selection process now cannot raise his voice of protest. (14.) THERE is no such concrete or convincing material before this court so as to conclusively indicate that the respondent/bank has shown any undue favour to private respondent Nos. 9 and 10 or that the writ petitioner was a victim of any arbitrary discrimination. The attempt made by the writ petitioner in pushing himself upward in the selection list does not thus seem to have any rational basis. (15.) THE most significant aspect of the present case is that the respondent/bank categorically stated that the panel under reference is still alive and the anxiety of the writ petitioner is premature. For all the aforesaid reasons, this court does not find any merit in the grievance ventilated over engagement of private respondent Nos. 9 and 10. But in tune with the stand of the respondent/bank, as mentioned earlier, this court very well expects the said respondent to take concrete steps in appreciation of the claim of the writ petitioner. Accordingly, the present Writ Application No. 6744 (W) of 2007 is disposed of with a direction upon the respondent/bank to consider the grievances of the writ petitioner in its proper perspective and to proceed in accordance with the rules. Accordingly, the present Writ Application No. 6744 (W) of 2007 is disposed of with a direction upon the respondent/bank to consider the grievances of the writ petitioner in its proper perspective and to proceed in accordance with the rules. It is expected that the respondent/bank while doing so must show magnanimity and must stretch itself as far as permissible by the rules. The application being W. P. No. 6744 (W) of 2007 stands disposed of with the aforesaid observations. There is no order as to costs. Xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.