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2019 DIGILAW 515 (GAU)

Assam Gramin Vikash Bank v. Ravindra Nagar

2019-04-29

A.K.GOSWAMI, A.S.BOPANNA

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JUDGMENT : A.S. Bopanna, J. Heard Mr. AD Choudhury, learned counsel for the appellant and Mr. M Choudhury, learned counsel for respondent No.1 and Ms. B Chakraborty, learned counsel for respondent Nos.2 and 3 in all the appeals. 2. The appellant in all these appeals is the very same entity, namely, Assam Gramin Vikash Bank though the respondents are different. However, considering the fact that the issue in all these appeals relates to a common recruitment process in which the respondents herein are interested and the grievance has been raised by the appellant bank in respect of such recruitment process, we have taken up all these appeals together and disposed of through this order. 3. For the purpose of narration of the facts and consideration of the contentions, we have taken WA 7/2019 as the lead case. The reference made herein to WA 7/2019 arises out of WP(C) 7946/2017. As noticed, since a common issue was under consideration, the learned Single Judge has also passed a consolidated order in respect of the writ petitions from which these appeals arise. Having so considered, the writ petitions were disposed of through the order dated 12.9.2018 which is called in question in these appeals. 4. The respondents herein were before the learned Single Judge seeking a direction to the appellant Bank to issue them the appointment order pursuant to the recruitment process which had been conducted by the Institute of Banking Personnel Selection (IBPS for short) which relates to the appellant bank as also 55 other regional banks. The advertisement notice was issued on 9.9.2016 calling for applications. In the said process, the respondents herein had applied seeking employment as Scale-II Officers. In the said process, since 56 banks were listed in the process, the applicants were required to make their choice of the bank. In the said advertisement, the appellant bank was listed at Serial No.5. The respondents had indicated the appellant bank as also one of their choices in the selection process. Ultimately, on the basis of marks secured by the private respondents in the examination conducted by the IBPS, they were entitled to be employed in the appellant bank and to that extent, the IBPS had indicated their names and provisional allotment by the appellant bank was made. 5. Ultimately, on the basis of marks secured by the private respondents in the examination conducted by the IBPS, they were entitled to be employed in the appellant bank and to that extent, the IBPS had indicated their names and provisional allotment by the appellant bank was made. 5. However, since the appellant bank had not issued the order of appointment, the respondents herein were aggrieved and were before the learned Single Judge. The learned Single Judge having taken note of the rival contentions was of the opinion that in a circumstance where the respondents were made to participate in the recruitment process and they had successfully competed in the examination, the appellant bank would not be justified in rejecting their candidature and in that light, had allowed the writ petition and directed the appellant bank to issue the appointment orders. It is in that circumstance, the appellant bank claiming to be aggrieved is before this Court in these appeals. 6. Learned counsel for the appellant while assailing the order passed by the learned Single Judge would, at the outset, contend that in a matter of the present nature, a direction to issue the appointment orders would not be justified. It is pointed out that the vacancy as notified to the IBPS was only provisional and the very process initiated by the IBPS through their advertisement itself would indicate that the provisional allotment would be made based on the actual vacancy to be reported by the regional bank. In that view, it is contended that in such circumstance, the candidates were aware that the vacancies indicated were provisional and the right in respect of such indication of provisional process cannot be claimed by them. The learned counsel has referred to the said advertisement wherein it is also indicated that the issuance of the appointment order would be the sole decision of the regional bank and therefore, merely because the IBPS had indicated the names of the bank and the respondents had made their choice, they cannot be granted the benefit of the appointment. The learned counsel has referred to the said advertisement wherein it is also indicated that the issuance of the appointment order would be the sole decision of the regional bank and therefore, merely because the IBPS had indicated the names of the bank and the respondents had made their choice, they cannot be granted the benefit of the appointment. In that circumstance, it is contended that even in the affidavit-in-opposition filed in the writ petition this aspect was referred to and it was also stated in the affidavit that the vacancy position intimated to the IBPS was provisional being subject to approval by the Board and as the Board had not granted the approval, the same could not be taken as confirmed. In that light, it is contended that the order passed by the learned Single Judge is not justified and the same calls for interference. 7. Learned counsel for the respondents would, however, seek to sustain the order passed by the learned Single Judge. Learned counsel for the private respondents would point out that the respondents had offered their candidature pursuant to the advertisement and that they had participated in the recruitment process and had made their choice taking into consideration the nature of employment that they would secure. It is submitted that the private respondents by virtue of the marks obtained were entitled to employment and the provisional allotment was made by the IBPS which was required to be honoured by the appellant bank. In that light, it is contended that the entire process was initiated by the IBPS having obtained the vacancy position of the particular bank and where the private respondents had taken note of the list of the regional banks which was published and in that circumstance, had made their choice, at this juncture, the appellant bank cannot resile from the position, where the private respondents had been successful and provisional allotment had been made by the IBPS. Learned counsel would further contend that in a circumstance where 56 banks had participated and the private respondents had indicated the appellant bank as one of their choices, at this juncture, if the appellant bank denies them employment, the private respondents would stand to lose, inasmuch as, the option which was open to other regional banks for which vacancy position had been indicated is also not available to them at this stage. 8. 8. Learned counsel for the private respondents at the time of consideration of these appeals would bring to our notice that the other listed banks in the recruitment process have also accommodated the persons who were in the waiting list as some candidates who were selected had not joined. In that circumstance, it is pointed out that persons who secured much lesser marks than the selected candidates and were in the waiting list have also been accommodated. In such circumstance, if at earlier stage itself the appellant bank had indicated to the IBPS about the non-availability of the vacancy and if the name of the appellant bank had been removed from the list of participating banks, the respondents would have had the opportunity of opting for the banks which were otherwise available in the list and would have secured employment as they were more meritorious than some of the other selected candidates as also the wait-listed candidates, who were appointed. Hence, it is contended that if at this stage the appointment by the appellant bank is not granted, the private respondents would stand to lose as less meritorious candidates had already secured employment. 9. In the above background, a perusal of the order passed by the learned Single Judge would indicate that the learned Single Judge has made detail reference to the advertisement relating to appointment and has also referred to the fact that the provisional allotment was required to be made by the IBPS. However, taking note of the peculiar facts in which a direction was being sought by the private respondents, the learned Single Judge has arrived at the conclusion that the appellant bank having participated in the process and offering the names of the banks to be enlisted, cannot at this juncture prejudice the respondents by contending that the indication was only provisional and the selection made by the IBPS is also provisional. The learned Single Judge while arriving at the conclusion has also taken into consideration the decision of the Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 47 with particular reference to paragraph 7 thereof. 10. The learned Single Judge while arriving at the conclusion has also taken into consideration the decision of the Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 47 with particular reference to paragraph 7 thereof. 10. Learned counsel for the appellant while contending that such consideration made by the learned Single Judge is not justified, has referred to the said decision and referred to paragraph 8 to contend that the law as laid down by the Honble Supreme Court in the said decision as also in several other decisions is to the effect that there is no indefeasible right to the selected candidate to seek for issue of appointment letter. Even if the said position of law is kept in view, it requires consideration as to whether said position can be applied in the instant facts and in that light, a consideration is required to be made. 11. In the instance case, as already taken note the recruitment process was initiated pursuant to the advertisement notice dated 9.9.2016. In the said process, 56 banks were included in the list which also included the appellant bank. Prior to indication of the name of the appellant bank in the said list, IBPS had sought for details from the appellant bank. The appellant bank through its communication dated 21.1.2016 had indicated the vacancy position. In the said communication, the vacancy position in the Scale-II posts was also indicated and the vacancy shown therein was 58 posts in different categories. It is based on such communication that IBPS had indicated the name of the appellant bank in the advertisement. Subsequent thereto, the process was conducted and the private respondents had participated in the selection process. The selection letter was issued by the IBPS on 10.3.2017. We have referred to this aspect in details only to indicate that the vacancy position was indicated by the appellant bank on 21.6.2016. The advertisement was issued by the IBPS based on the same on 9.9.2016 and the selection letter was issued after consideration of the merit on 10.3.2017. In that circumstance, from the date on which the intimation was issued by the appellant bank till the date of advertisement, about 3 months had elapsed. As on date on which the selection letter was issued, further 6 months have elapsed. Despite the said position, the appellant bank had not made any intimation to the IBPS. 12. In that circumstance, from the date on which the intimation was issued by the appellant bank till the date of advertisement, about 3 months had elapsed. As on date on which the selection letter was issued, further 6 months have elapsed. Despite the said position, the appellant bank had not made any intimation to the IBPS. 12. While taking note of these aspects what is also to be kept in view is that in a circumstance where the vacancy position was initially intimated and the name of the appellant bank was indicated in the advertisement, the private respondents had made their option and at this stage if the appellant bank is allowed to put forth such contention, the right of the respondents would stand defeated. While taking note of these aspects what is also to be taken note is that the private respondent in WA 7/2019, who belongs to the ST category, had submitted his application seeking employment under the said category. Having participated in the entrance examination he had secured 51.95% in the examination. Since the cut off percentage of ST candidate was 51.85% and the private respondent herein had obtained more marks, he was considered under the unreserved category. 13. We have referred to these aspects only to indicate that in a circumstance where a candidate seeking employment under the reserved category, had obtained more marks than the cut-off marks of unreserved category and accordingly was offered appointment in that category, denial of employment to such candidate at this juncture, more particularly, when the wait listed candidates have been provided employment, would not be justified. Therefore, if this aspect of the matter is kept in view, the instant facts are to be looked at differently and more particularly, in a circumstance where as against the vacancy in Scale-II under the different categories, only 8 persons are before this Court claiming the right of such employment, this Court would not be justified in denying the relief to such persons who have participated in the selection process. Therefore, in the peculiar facts and circumstance of the instant case where consideration to that effect has been made by the learned Single Judge, it would not be appropriate for us to interfere with the order passed by the learned Single Judge. 14. Therefore, in the peculiar facts and circumstance of the instant case where consideration to that effect has been made by the learned Single Judge, it would not be appropriate for us to interfere with the order passed by the learned Single Judge. 14. However, we further make it clear that the benefit as accrued would be available to the private respondents herein who are the writ petitioners and had raised grievance. No other person who had participated in the selection process and had not raised grievance earlier by filing writ petition, would be entitled to take the benefit of this order by hereafter approaching this Court in this regard since the consideration as made herein is under the peculiar facts and circumstances of the case without making it a precedent. 15. In terms thereof, we are of the opinion that the writ appeals do not merit consideration. Accordingly, we agree with the order passed by the learned Single Judge. Accordingly, these appeals stand disposed of.