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2015 DIGILAW 520 (JK)

United India Insurance Co. Ltd. v. Ab. Gani Bhat

2015-09-30

ALI MOHD.MAGREY, N.PAUL VASANTHA KUMAR

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. This Letters Patent Appeal has been preferred against the final order/Judgment dated 10.03.2015, rendered by the learned writ Court in SWP No. 1278/2008, titled Abdul Gani Bhat v. Oriental Insurance Co. & Ors., whereby the writ Court has allowed the writ petition filed by respondent No. 1 - petitioner and directed the Appellant Company-respondents 2 to 5 to take steps to appoint respondent No. 1 - petitioner as Sub-Staff (Class IV) or on equivalent post in accordance with Rules. The short facts of the case are noted hereunder:- 2. The respondent No. 1-petitioner started his carrier as a temporary employee with Oriental Insurance Company Limited. While working with the said Company, an opportunity came to his way to get employment on permanent basis, as the General Insurance Company invited applications from eligible candidates for Sub-Staff (Class IV) vacancies and conducted selection process to fill up such posts in different Insurance Companies. Needless to say that General Insurance Company is a Government Company and United Insurance Company and other Insurance Companies are its subsidiaries. Respondent No. 1 herein-Petitioner though selected for being appointed against the post of Sub-Staff (Class IV), but same could not be offered to him as in the writ petition bearing SWP No. 1357-59/1997, one post of Sub-Staff (Class IV) was ordered to be reserved by the Court. The said petition was dismissed vide order dated 06.06.2008 and in SWP No. 102/2007, filed by respondent No. 1 petitioner, aggrieved with failure on part of the Appellant United India Insurance Co. Ltd., to issue appointment order in his favour, was disposed of on 06.06.2008 with the following directions:- "The petitioner came to be engaged in Sub-Staff (Class IV). In the process of selection he has been selected but his appointment order could not be passed as according to the respondents the court had stopped to make any selection in view of the pendency of SWP No. 1357-59/97. Learned counsel for the respondents would submit that it is because of the pendency of writ petition No. 1357-59/97 that the respondents could not consider the case of the petitioner. The said petition has been dismissed by means of above Judgment as such the respondent can consider the case of the petitioner now. Learned counsel for the respondents would submit that it is because of the pendency of writ petition No. 1357-59/97 that the respondents could not consider the case of the petitioner. The said petition has been dismissed by means of above Judgment as such the respondent can consider the case of the petitioner now. In view of the submissions made the petition is disposed of with a direction to the respondents to proceed in the matter in accordance with the rules and pass appropriate orders within a period of four weeks from the date this order is served on the respondents." 3. The select list issued by General Insurance Company, would indicate that the vacancies in various Insurance Companies including United India Insurance Company, Oriental Insurance Company were to be supplied by the candidates figuring in select list. Respondent No. 1-petitioner came to be allotted to United India Insurance Company. While other candidates shown in the select list were appointed by their respective Insurance Companies, respondent No. 1-petitioner was singled out for hostile discrimination. 4. Respondents 2 to 5 in their reply, filed before the writ Court submitted that though the respondent No. 1-petitioner was selected but he was to be appointed in the Appellant Company. The respondents 2 to 5 more particularly appellant were thus duty bound to offer appointment to the respondent No. 1-petitioner in terms of aforementioned Court order. 5. The appellant United Insurance Company rejected the claim of respondent No. 1-petitioner for appointment as Sub-Staff (Class IV), though no formal order of rejecting the claim of respondent No. 1-petitioner was passed. 6. Respondent No. 1 - petitioner disappointed by the conduct of Appellant Company and respondents 2 to 5 has come up with the writ petition bearing SWP No. 1278/2008 and prayed for the following reliefs:- "(a) A writ, order or direction including one in the nature of mandamus commanding upon the respondents to allow the petitioner to continue in service and pay him the wages till implementation of the judgment dated 06.06.2008. (b) A writ, order or direction including one in the nature of mandamus commanding upon the respondents to implement the judgment of the Hon'ble Court dated 06.06.2008 in letter and spirit and appoint the petitioner based on his merit." 7. (b) A writ, order or direction including one in the nature of mandamus commanding upon the respondents to implement the judgment of the Hon'ble Court dated 06.06.2008 in letter and spirit and appoint the petitioner based on his merit." 7. Respondents 2 to 5 and appellant denied the respondent No. 1-petitioner right to be appointed on the basis of his selection made by General Insurance Company on the ground that by now the cadre of Sub-Staff has been declared run off cadre. Needless to mention that such a stand was not taken in earlier writ petition SWP No. 102/2007. On the date SWP No. 102/2007, was filed, the post was existing and appellant had therefore, not taken such a stand in opposition to the writ petition. Respondents 2 to 5 and appellant gave a walk over to the respondent No. 1-petitioner without disputing the averments made in the writ petition and persuaded writ Court to pass order dated 06.05.2008, whereby respondents 2 to 5 and appellant were asked to pass appropriate orders on the basis of merit/select list wherein respondent No. 1 - petitioner figured at Serial No. 2. 8. The Appellant United India Insurance Company and respondents 2 to 5, alive to the fact that respondent No. 1 - petitioner could not be denied right of appointment in view of stand taken in the earlier writ petition, sought repeated adjournments before the writ Court for creation of a post against which respondent No. 1-petitioner's appointment could be considered. This would make it clear that Appellant Company intended to take steps to appoint respondent No. 1 - petitioner against the post available or proposed to be created. Learned single Judge has made reference to the interim orders dated 19.05.2010, 20.12.2010, 31.01.2011, 23.11.2011 and 28.12.2011 with reference to approach of the Appellant-Company, seeking time for creation of post against which respondent No. 1-petitioner's appointment could be considered. Not only that but on one of such dates, Senior Divisional Manager appeared in person before the writ Court and submitted that the respondent No. 1 - petitioner would be appointed against the post proposed to be created. 9. Not only that but on one of such dates, Senior Divisional Manager appeared in person before the writ Court and submitted that the respondent No. 1 - petitioner would be appointed against the post proposed to be created. 9. Learned appearing counsel for the Appellant-Company before the writ Court, more than, once had volunteered to come up with notification in support of her claim that Sub-Staff (Class IV) cadre was declared as a run off cadre and no more available, has not produced such notification till date. Learned counsel for the Appellant-Company has also not produced such notification before us. 10. Respondent No. 1 - petitioner, admittedly, was a duly selected candidate. Respondent No. 1 - petitioner could not be offered appointment because of the orders passed by the Court in SWP No. 1357-59/1997, vide which the post of Sub-Staff (Class IV) was ordered to be reserved. The persons who were selected along with the respondent No. 1 - petitioner by different Companies have been appointed and are working. The Appellant Company and respondents 2 to 5 in the peculiar facts and circumstances of the case cannot take a Uturn and deny appointment to the respondent No. 1 - petitioner for following twin reasons: "(a) Petitioner was a duly selected candidate and was denied appointment on the relevant point of time on the ground that the Court had reserved a post of Sub-Staff in SWP No. 1357-59/97 which was subsequently dismissed. (b) In SWP No. 102/2007 direction was issued to the respondents to consider the claim of the petitioner and proceed in the matter in accordance with Rules and pass appropriate orders within four weeks." 11. Learned counsel for the Appellant-Company while strengthening her arguments in support of the grounds taken in the appeal has referred to and relied upon the judgments delivered in case Union of India v. K.V. Vijeesh reported in (1996) 3 Supreme Court Cases 139, Divakar v. Govt. of A.P. reported in (1982) 3 Supreme Court Cases 341 and Shankarsan Dash v. Union of India reported in AIR 1991 Supreme Court 1612. 12. Learned counsel for the Appellant Company submits that mere inclusion of respondent No. 1-petitioner's name in merit list/select list does not confer any right on him to be appointed. 13. There is no denial of the fact that inclusion of candidate's name in merit list does not confer any right to be selected/appointed. 12. Learned counsel for the Appellant Company submits that mere inclusion of respondent No. 1-petitioner's name in merit list/select list does not confer any right on him to be appointed. 13. There is no denial of the fact that inclusion of candidate's name in merit list does not confer any right to be selected/appointed. 14. In the context of the facts of the instant case the only question which falls for determination in this appeal is whether a candidate who is selected on the basis of selection process acquires a right of appointment in service against a vacancy. The above question has been answered by a Constitution Bench of the Hon'ble Supreme Court in case Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47 with the following words:- "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 denies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any rights 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. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." 15. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." 15. The submission of learned counsel for the appellant that there is no post available in the Company, therefore, respondent No. 1 - petitioner cannot be considered for appointment against non-existing post, has no substance as the post against which respondent No. 1 - petitioner has been selected was available at the time of initiation of selection process till its conclusion and thereafter when other selectees were appointed but for the stay order granted by the writ Court the post to be filled against which, respondent No. 1 - petitioner was required to be appointed, the appointment could not be offered to the respondent No. 1 - petitioner against the said post. The submission of learned counsel for the appellant, if accepted, shall result in injustice to the rights of respondent No. 1 - petitioner for none of his fault and he will be discriminated, which shall be in violation of Article 14 and 16 of the Constitution. 16. The Appellant Company in the facts and circumstances of the case would be required to take steps to appoint the respondent No. 1-petitioner as Sub-Staff (Class IV) or on equivalent post in accordance with rules. Viewed thus, we are of the considered view that the final order/Judgment passed by the writ Court does not warrant any interference. The appeal is, accordingly, dismissed, however without any order as to costs. The Appellant Company shall implement the order of writ Court within six weeks.