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2013 DIGILAW 304 (HP)

KAMAL THAPA v. STATE BANK OF PATIALA

2013-04-11

A.M.KHANWILKAR, R.B.MISRA

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JUDGEMENT A.M. KHANWILKAR, J. 1. HEARD learned counsel for the parties. Admitted. 2. COUNSEL for the respondents waive notice. By consent, taken up for final disposal forthwith. This appeal by original respondent-No.4/appellant herein takes exception to the decision of the learned Single Judge dated 13.12.2011 in CWP No.3777 of 2010-D. The said writ petition was filed by the respondent No.4, praying for the following relief:- "It is therefore, respectfully prayed that the present petition may kindly be allowed and the appointment letter and impugned joining report annexure P-8 vide which the respondent no.4 has been allowed to join in the respondents bank and the letter of rejection annexure P-13 dated 22.5.2010 may kindly be quashed and set aside keeping in view the facts and circumstances of the case and in the interest of justice, with the further direction to the respondents to issue appointment letter to the petitioner who is entitled and fully eligible in all respects to be appointed on the said post, keeping in view the submissions made herein above in the petition and in the interest of justice." 3. THE case of the writ petitioner was that the appellant herein came to be appointed pursuant to the selection process commenced on the basis of advertisement dated 27.5.2008. The first condition of eligibility in the advertisement was that the candidates must be enrolled with the Himachal Pradesh Employment Exchange. According to the writ petitioner, this condition was mandatory. Further, the appellant, admittedly, was not registered with the Employment Exchange. It is not necessary to emphasis or to refer to the other assertion made by the petitioner that the appellant could not have been registered, being a resident of Nepal. 4. THE question is: whether this condition can be construed as mandatory? It is not in dispute that the respondent-bank on affidavit stated that the Bank did not consider this condition as mandatory as the Bank had published public advertisement and could not have restricted the choice of the candidates, only to those registered with the Employment Exchange. The learned Single Judge, however, construed the said condition to be mandatory. It is not in dispute that the respondent-bank on affidavit stated that the Bank did not consider this condition as mandatory as the Bank had published public advertisement and could not have restricted the choice of the candidates, only to those registered with the Employment Exchange. The learned Single Judge, however, construed the said condition to be mandatory. In our opinion, the appellant is justified in relying on the decision of the Apex Court, which has taken the view that when the appointment such as permanent Part Time Sweeper post is to be made, the selection cannot be restricted only to the candidates sponsored by the Employment Exchange- as expounded in the case of Excise Suerintendent Malkapatnam, Krishna District, A.P. versus K.B.N. Visweshwara Rao & others, (1996) 6, SCC 216. Further, in the case of Union of India and other Vs. Pritilata Nanda, (2010) 11, SCC 674, the Court has held that the recruitment procedure of sponsorship by Employment Exchange is not mandatory. In other words, when the selection process is commenced on the basis of public advertisement for filling up the regular or permanent post, that cannot be limited to the candidates, who are registered with the Local Employment Exchange. Such condition would inevitably infringe the fundamental rights guaranteed to all other eligible candidates under Article 16 of the Constitution of India, of equal opportunity. Understood thus, the respondent Bank has justly taken a stand that the condition No.1, referred to above, in the public advertisement issued by the Bank, was not mandatory. Since this is the only reason which weighed with the learned Single Judge to allow the writ petition, the impugned judgment deserves to be set aside. Counsel for the petitioner, however, placed reliance on the decision of the Apex Court in the case of M. Purnachander Rao versus Nawab Mazaharuddin Khan (dead) through LRs and others, (2008) 12, SCC 433 to contend that the appellant has no locus to challenge the decision of the learned Single Judge, having allowed the writ petition proceeding to proceed against him exparte. We are not impressed by this submission. The decision, pressed into service, has no application to the fact situation of the present case. In that case, the Court found that the person was not a party to the original proceedings to claim interest in the subject matter of the original proceedings. We are not impressed by this submission. The decision, pressed into service, has no application to the fact situation of the present case. In that case, the Court found that the person was not a party to the original proceedings to claim interest in the subject matter of the original proceedings. In the present case, the appellant is, admittedly, impleaded as respondent No.4 and the relief claimed by the writ petitioner was to set aside the appointment. It is incomprehensible that a person, who is directly affected by the decision of this Court can have no locus to appeal against the said decision merely because the proceedings against him had proceeded exparte. In our opinion, the argument of locus of the appellant is completely misplaced. 5. ACCORDINGLY, this appeal succeeds. The impugned decision is set aside and the writ petition is dismissed with no order as to costs. 6. AT this stage, counsel for the original writ petitioner submits on instruction that there are large numbers of vacancies available in the respondent-bank against which he can be appointed as Part Time Sweeper. That is the matter which the Bank will have to consider, if permissible in law. We are not expressing any opinion in that behalf.