Full Judgment Text
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CASE NO.:
Appeal (civil) 4261 of 2006
PETITIONER:
State of Bihar & Ors
RESPONDENT:
Amrendra Kumar Mishra
DATE OF JUDGMENT: 26/09/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
[Arising out of S.L.P. (Civil) No. 26370 of 2005]
S.B. SINHA, J :
Leave granted.
The Bihar State Subordinate Service Selection Board issued an
advertisement for appointment of 225 posts of Live Stock Assistants in the
Animal Husbandry Department. Respondent herein pursuant to or in
furtherance of the said advertisement applied therefor. He was declared
successful. On or about 21.12.1992, Respondent herein along with other
successful candidates had been recommended by the Board. Appointment
letters were issued to 195 successful candidates, out of the 200 candidates
recommended by the Commisson. By a Memo. No. 323 dated 21.02.1992,
an appointment letter was sent to Respondent asking him to join the post
within fifteen days. He failed to join. Allegedly, on 20.07.1994, he
requested Director, Department of Animal Husbandry, to issue an
appointment letter to him, stating :
"I came to know that the Department had
appointed maximum candidates till date and the
appointment proceeding is going on for the remaining
advertised 225 posts. My Serial Number is more above
in the recommended merit list and junior persons to me
have been appointed but I have not received any
appointment letter till date for my joining. During the
period of enquiry, I have come to know that the
appointment letter of the selected candidates have been
forwarded, whereas I have not received appointment
letter till now.
In the above facts and circumstances, I, therefore,
request you to kindly pass the appropriate order
immediately for giving me appointment letter."
No reply thereto was allegedly given. He did not take any steps in
regard thereto and only on 22.06.1995, he again requested the Director of
Animal Husbandry to issue him an appointment letter in order to enable him
to join the said post, stating :
"With respect, it is to say with regard to earlier
application dispatched by me in the aforesaid subject
matter that in the light of the subject matter,
advertisement by the Bihar Public Service Commission, I
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had recommended for appointment.
It comes to know that the department had
appointed maximum candidates but till date, I have not
received my appointment letter. I have been reminding
to the Department for a very long period but I have not
received any appointment letter by the department till
date."
A notice on similar terms was issued by him in the year 2000. As his
prayer was not acceded to, he filed a writ petition in the High Court of
Judicature at Patna, which was marked as CWJC No.801 of 2001. The State
in its Counter Affidavit categorically raised a contention that the panel
remained valid only for one year. It was contended that the purported
representations made by him in the years, 1994, 1995 and 2000 were not
available in the Department, stating :
"That it is further started that in the month of
December, 1999, the petitioner had submitted another
representation in this Department, the case of the
petitioner was referred to the Law Department,
Government of Bihar, for opinion and the opinion of the
learned Advocate General, Bihar was also sought and
tendered. In the light of the opinion given by the Law
Department/learned Advocate General, the representation
of the petitioner was rejected vide Annexure-5 of the writ
application."
The said writ petition was taken up for hearing in 2004. The High
Court allowed the same, stating :
"While hearing the matter on 29.6.2004 I had
verbally asked learned G.P. 6 to find out as to whether
any post of Pashudhan Sahayak is vacant pursuant to
which a supplementary counter affidavit has been filed.
In paragraph 56 of the affidavit it is stated that some
posts of Pashudhan Sahayak are vacant in the office.
Since the petitioner was already selected for this post and
he could not report his joining due to some unavoidable
circumstances, in my opinion, his case should be
considered for the post of Pashudhan Sahayak which is
still vacant.
In the given facts and circumstances of the case,
therefore, the authorities concerned are directed to accept
the joining of the petitioner on the post of Pashudhan
Sahayak pursuant to his selection vide order as contained
in Annexure 2 within a period of four weeks from the
date of receipt/production of a copy of this order."
A Letters Patent Appeal preferred by Appellants was summarily
dismissed by an order dated 03.03.2005.
A notice was issued by this Court on 16.12.2005. Despite pendency
of the Special Leave Petition, Respondent was permitted to join his services
in July 2006 subject to the decision of this Court in this matter.
The post was advertised in the year 1987. The selection process was
completed in the year 1992. It may or may not be that Respondent herein
had actually received his appointment letter. It was, however, expected that
he would make enquiries thereabout; particularly when on his own showing
those who were below him in the selection list had already been permitted to
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join. Admittedly, he came to know thereabout in 1994. He allegedly filed a
representation and although no reply thereto was given, he did not take any
step soon thereafter. He filed another representation only in 1995. He filed
the writ petition after a long period i.e. in 2001 when his purported
representation filed in the year 1999 was rejected.
In the aforementioned situation, in our opinion, he did not have any
legal right to be appointed. Life of a panel, it is well known, remains valid
for a year. Once it lapses, unless an appropriate order is issued by the State,
no appointment can be made out of the said panel.
In Madan Lal and Others v. State of Jammu & Kashmir and Others
[(1995) 3 SCC 486], this Court held :
"\005It is easy to visualise that if requisition is for 11
vacancies and that results in the initiation of recruitment
process by way of advertisement, whether the
advertisement mentions filling up of 11 vacancies or not,
the prospective candidates can easily find out from the
Office of the Commission that the requisition for the
proposed recruitment is for filling up 11 vacancies. In
such a case a given candidate may not like to compete for
diverse reasons but if requisition is for larger number of
vacancies for which recruitment is initiated, he may like
to compete. Consequently the actual appointments to the
posts have to be confined to the posts for recruitment to
which requisition is sent by the Government. In such an
eventuality, candidates in excess of 11 who are lower in
the merit list of candidates can only be treated as wait-
listed candidates in order of merit to fill only the 11
vacancies for which recruitment has been made, in the
event of any higher candidate not being available to fill
the 11 vacancies, for any reason. Once the 11 vacancies
are filled by candidates taken in order of merit from the
select list that list will get exhausted, having served its
purpose."
In State of U.P. and Others. v. Harish Chandra and Others [(1996) 9
SCC 309], this Court stated the law in the following terms :
"Coming to the merits of the matter, in view of the
Statutory Rules contained in Rule 26 of the Recruitment
Rules the conclusion is irresistible that a select list
prepared under the Recruitment Rules has its life only for
one year from the date of the preparation of the list and it
expires thereafter\005"
Yet again in Surinder Singh and Others v. State of Punjab and
Another [(1997) 8 SCC 488], this Court stated the law thus :
"Prem Singh case was decided on the facts of that
case and those facts do not hold good in the present case.
In the case of Gujarat State Dy. Executive Engineers’
Assn. this Court has explained the scope and intent of a
waiting list and how it is to operate in service
jurisprudence. It cannot be used as a perennial source of
recruitment filling up the vacancies not advertised. The
Court also did not approve the view of the High Court
that since vacancies had not been worked out properly,
therefore, the candidates from the waiting list were liable
to be appointed. Candidates in the waiting list have no
vested right to be appointed except to the limited extent
that when a candidate selected against the existing
vacancy does not join for some reason and the waiting
list is still operative.
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The decisions noticed hereinbefore are authorities for the proposition
that even the waitlist must be acted upon having regard to the terms of the
advertisement and in any event cannot remain operative beyond the
prescribed period.
It may be true that the appointment letter was sent by ordinary post;
but even in relation thereto a statutory presumption arises. It is also well
known that postal delay by itself may not be a ground to take a sympathetic
view
In Maruti Udyod Ltd. v. Ram Lal and Others [(2005) 2 SCC 638], it
was observed :
"While construing a statute, "sympathy" has no role
to play. This Court cannot interpret the provisions of the
said Act ignoring the binding decisions of the
Constitution Bench of this Court only by way of
sympathy to the workmen concerned.
In A. Umarani v. Registrar, Coop. Societies this
Court rejected a similar contention upon noticing the
following judgments: (SCC pp. 131-32, paras 68-70)
"68. In a case of this nature this Court should not
even exercise its jurisdiction under Article 142 of the
Constitution of India on misplaced sympathy.
69. In Teri Oat Estates (P) Ltd. v. U.T.,
Chandigarh18 it is stated: (SCC p. 144, paras 36-37)
’36. We have no doubt in our mind that
sympathy or sentiment by itself cannot be a ground
for passing an order in relation whereto the
appellants miserably fail to establish a legal right.
It is further trite that despite an extraordinary
constitutional jurisdiction contained in Article 142
of the Constitution of India, this Court ordinarily
would not pass an order which would be in
contravention of a statutory provision.
37. As early as in 1911, Farewell, L.J. in
Latham v. Richard Johnson & Nephew Ltd.
observed: (All ER p. 123 E)
"We must be very careful not to allow our
sympathy with the infant plaintiff to affect our
judgment. Sentiment is a dangerous will o’ the
wisp to take as a guide in the search for legal
principles."
70. Yet again, recently in Ramakrishna Kamat v. State
of Karnataka this Court rejected a similar plea for
regularisation of services stating: (SCC pp. 377-78, para
7)
’We repeatedly asked the learned counsel for the
appellants on what basis or foundation in law the
appellants made their claim for regularisation and
under what rules their recruitment was made so as to
govern their service conditions. They were not in a
position to answer except saying that the appellants
have been working for quite some time in various
schools started pursuant to resolutions passed by
Zila Parishads in view of the government orders and
that their cases need to be considered
sympathetically. It is clear from the order of the
learned Single Judge and looking to the very
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directions given, a very sympathetic view was taken.
We do not find it either just or proper to show any
further sympathy in the given facts and
circumstances of the case. While being sympathetic
to the persons who come before the court the courts
cannot at the same time be unsympathetic to the
large number of eligible persons waiting for a long
time in a long queue seeking employment.’ "
In the facts and circumstances of this case, in our opinion, the High
Court should not have allowed Respondent herein to join his services only
on the basis of sympathy.
It is now also well settled that in absence of any legal right, the Court
should not issue a writ of or in the nature of mandamus on the basis of
sympathy.
We, therefore, are of the opinion that the High Court committed a
manifest error in allowing the writ petition of Respondent. It is set aside
accordingly. The appeal is allowed. However, no recovery shall be made
for the period he has actually worked. No costs.