Baitarani Gramiya Bank Vs. Pallab Kumar and Ors.
EmailAppeal: Civil Appeal Nos. 2050-2052 of 1996
(From the Judgment and Order dated 26.9.94 of the Orissa High Court in O.J.C. Nos. 1866, 2981 and 5052 of 1991)
(From the Judgment and Order dated 26.9.94 of the Orissa High Court in O.J.C. Nos. 1866, 2981 and 5052 of 1991)
Petitioner: Baitarani Gramiya Bank
Respondent: Pallab Kumar and Ors.
Apeal: Civil Appeal Nos. 2050-2052 of 1996
(From the Judgment and Order dated 26.9.94 of the Orissa High Court in O.J.C. Nos. 1866, 2981 and 5052 of 1991)
(From the Judgment and Order dated 26.9.94 of the Orissa High Court in O.J.C. Nos. 1866, 2981 and 5052 of 1991)
Judges: M.B. Shah & Dr. AR. Lakshmanan, JJ.
Date of Judgment: Sep 10, 2003
Appearances:
Mr. K.V. Viswanathan, Mr. K.A. Mohan Singh, Mr. B. Raghunath and Mr. K.V. Venkataraman, Advocates for the Appellant.
Mr. Vinoo Bhagat, Mr. Abhijit Sengupta, Advocate (NP)/Advocate for the Respondents
Mr. Vinoo Bhagat, Mr. Abhijit Sengupta, Advocate (NP)/Advocate for the Respondents
Head Note:
SERVICE LAWS
Regional Rural Banks Act, 1976
Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules 1988 – Constitution of India, 1950, Articles 14 and 15 – Banking services – Regional rural banks – Appointment of officers and employees – Whether a person selected has any indefeasible right to be appointed – Whether the bank has the right not to fill up the vacancies due to financial reasons – Appellant a rural bank sending an indent to the Banking Services Recruitment Board for certain number of posts – Board accordingly advertising the posts, conducting tests and interviews and selecting the persons – Before publication of the results of selection, appellant bank sending a revised reduced indent to the Board on account of the financial crisis – Board however going ahead and issuing letters of selection as per the original indent sent by the appellant – Owing to the bank not giving effect to the appointments, respondents being the persons selected by the Board, filing writ seeking directions for appointment – High Court directing the bank to issue appointment letters to the persons selected by the Board – Validity – Whether non issuance of appointment letters by the appellant bank amounted to discrimination vis-a-vis the persons who had been issued the appointment letters by certain other banks based on the common selection made by the Board – Whether the persons selected by the Board have any indefeasible right to demand order of appointment if they are higher up in merit list and others lower in the merit list are appointed in other banks . Setting aside the orders of the High Court held that the respondent writ petitioners had not acquired any indefeasible right to be appointed when the bank has taken a decision not to fill up all the vacancies which it based on sound bona fides and appropriate reasons. The bank is also under no obligation or legal duty to fill up any or all vacancies. Subsequent pruning of the indent cannot be characterized as mala fide or unreasonable.
Held:
Though the advertisement was published in the newspapers and the examinations were held thereafter on 20.03.1988, the bank had communicated the revised indent by 23.08.1988 well ahead of the intimation of selection and publication of results. The bank had bona fide and genuine reasons for pruning down the indent. If the banks are forced to accommodate officers and field supervisors more than their required indent, it will have a crippling effect on the bank and public interest will stand seriously prejudiced as several employees will have to be unnecessarily retained and public money will have to be expended on them. When public interest competes with private interest, the private interest will have to give way to public interest. In this case, asking the appellant – bank to accommodate as directed by the BSRB would cause loss to public revenue. It has been clearly stated in the counter affidavit filed by the bank before the High Court in the writ petition that on account of various factors including liquidity crisis, ban order for opening new branches and on account of financial burden incurred on account of Implementation of Agricultural Rural Debt Relief Scheme and the award given by the National Industrial Tribunal, the bank had decided not to fill up the posts though at the time of advertisement indents had been given. Thus, it is seen that the decision of the bank not to fill up the posts was due to financial crisis. Therefore, no direction can be given to issue appointment letters to the respondents/writ petitioners though they have come out successful in the selection process. (Para 44)
The aforesaid being the decision, we would hold that the respondents/writ petitioners had not acquired any indefeasible right and the decision not to fill up all the vacancies had been taken bona fide reasons and directions as sought for by the respondents cannot, therefore, be issued. (Para 45)
However, with a view to do justice between the parties and balance the equities, we issue the following directions :
(a) If, however, the business of the bank would require filling up of more vacancies and if the respondents/writ petitioners turn would come as per the merit list, we have no doubt that the concerned respondents/writ petitioners would be absorbed in service as per rules.
(b) The appointment shall be made on the basis of merit/select list if there are vacancies in any cadre.
(c) The select list would remain in force for two years from now.
(d) The appellant- bank, we hope, will consider the question of relaxation of age bar in suitable cases so as to minimize their hardship. (Para 48)
We are unable to subscribe to the opinion expressed by the full bench and the Division Bench of the Orissa High Court impugned in these appeals for the reasons stated in paragraphs supra. (Para 49)
Cases Reffered:
1. Kunhayammed & Ors. v. State of Kerala & Anr. (JT 2000 (9) SC 110) (Para 31)
2. Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor & Ors. (JT 1998 (6) SC 355) (Para 13)
3. U.P. Bhumi Sudhar Nigam Ltd. v. Shiv Narain Gupta (JT 1994 (4) SC 374) (Para 39)
4. Babita Prasad & Ors. v. State of Bihar
& Ors. (1993 Supp. (3) SCC 268) (Para 13)
5. State of Bihar & Ors. v. Secretariat Assistant Successful Examinees Union 1986 & Ors. (JT 1993 (6) SC 462) (Para 13)
6. Union Territory of Chandigarh v. Dilbagh Singh (JT 1993 (Suppl.) SC 712) (Para 13)
7. Union Territory of Chandigarh v. Dilbagh Singh and Others (JT 1992 Supp SC 712) (Para 36)
8. Surya Prasad Rath and Another v. Baitarani Gramiya Bank (O.J.C. No. 1265 of 1991) (Paras 22, 26)
9. Bipin Bihari Das and Others v. Baitarani Gramiya Bank and Others (O.J.C. No. 1125 of 1991) (Paras 22, 26)
10. Shankarsan Dash v. Union of India (JT 1991 (2) SC 380) (Para 13)
11. Ashok Kumar Sarangi v. Secretary, BSRB and Others (O.J.C. No. 2902 of 1990) (Paras 22, 26)
12. State of A.P. & Anr. v. V. Sadanandam & Ors. (JT 1989 (Suppl.) SC 232) (Para 13)
13. The State of Haryana v. Subash Chander Marwaha & Ors. ((1974) 3 SCC 220) (Para 38)
2. Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor & Ors. (JT 1998 (6) SC 355) (Para 13)
3. U.P. Bhumi Sudhar Nigam Ltd. v. Shiv Narain Gupta (JT 1994 (4) SC 374) (Para 39)
4. Babita Prasad & Ors. v. State of Bihar
& Ors. (1993 Supp. (3) SCC 268) (Para 13)
5. State of Bihar & Ors. v. Secretariat Assistant Successful Examinees Union 1986 & Ors. (JT 1993 (6) SC 462) (Para 13)
6. Union Territory of Chandigarh v. Dilbagh Singh (JT 1993 (Suppl.) SC 712) (Para 13)
7. Union Territory of Chandigarh v. Dilbagh Singh and Others (JT 1992 Supp SC 712) (Para 36)
8. Surya Prasad Rath and Another v. Baitarani Gramiya Bank (O.J.C. No. 1265 of 1991) (Paras 22, 26)
9. Bipin Bihari Das and Others v. Baitarani Gramiya Bank and Others (O.J.C. No. 1125 of 1991) (Paras 22, 26)
10. Shankarsan Dash v. Union of India (JT 1991 (2) SC 380) (Para 13)
11. Ashok Kumar Sarangi v. Secretary, BSRB and Others (O.J.C. No. 2902 of 1990) (Paras 22, 26)
12. State of A.P. & Anr. v. V. Sadanandam & Ors. (JT 1989 (Suppl.) SC 232) (Para 13)
13. The State of Haryana v. Subash Chander Marwaha & Ors. ((1974) 3 SCC 220) (Para 38)
JUDGEMENT:
Dr. AR. Lakshmanan, J.
1. These appeals are directed against the judgment and order of the Division Bench of the High Court of Orissa dated 26.09.1994 in O.J.C. nos. 1866, 2981 and 5052 of 1991.
2. The High Court, by the impugned judgment, has allowed the writ petitions filed by the respondents herein and has directed the appellant – bank to issue appointment orders to them for the post of officer/field supervisors.
3. For the purpose of recruitment, the Banking Service Recruitment Board (hereinafter referred to as “the BSRB”) issued an advertisement in the newspapers. The contention of the bank before the High Court was that in view of the financial crisis they had revised their indents submitted to the BSRB long before the publication of the results regarding intimation of selection and as such the BSRB ought not to have gone ahead and issued letters of selection based on the original indent submitted by the bank to the candidates and that merely by getting an intimation of selection, no right accrues to the candidates for appointment.
4. The selections to the category of officers in the bank is done by the BSRB. Indents are submitted by the bank to the BSRB. By letter dated 14.01.1987, an indent was placed by the bank to the BSRB. In the said indent for the category of officers, 36 posts were mentioned and for the category of field supervisors, 61 posts were mentioned. Thereafter, by letter dated 23.06.1987, the indent for field supervisors was revised from 61 to 30. By further letter of 18.11.1987 another revised indent was submitted, wherein the requirements were as follows :
Officers Cadre 36
Field Supervisors 30
5. On 28.08.1988 a revised indent was submitted by the bank to the BSRB under which their requirements were as follows :
Officers 14
Field Supervisors 11
6. This letter was replied to by the BSRB on 01.09.1988 whereunder they refused to accommodate the bank’s request. According to the bank, as stated in the grounds of special leave petition, the reasons which had pruned their indent well ahead of the publication of the results were :
a. the bank incurred loss of more than Rs. 7 crores;
b. the target in the various anti-poverty programmes could not be met on account of the loss;
c. the ban imposed by the State government, for the opening of further branches, in view of the loss;
d. due to poor recovery performances, the rural banks became ineligible for refinance from NABARD and
e. due to the award given by the National Industrial Tribunal on 30.04.1990, all staff of Gramiya Bank were equated with the corresponding staff of the sponsor bank as regards pay and allowances and all other benefits with retrospective effect from 1987. In view of this the arrears payable to the existing employees alone came to Rs. 2 crores and establishment expenditure increased by 150%.
7. According to the bank, they had bona fide and genuine reasons for pruning down the indent and the bank had communicated the revised indent by 23.08.1988, well ahead of the publication of the results and if the banks are forced to accommodate officers and field supervisors more than their required indent, it will have a crippling effect on the bank.
8. As already noticed, the bank had placed a revised indent in view of the changed circumstances. However, the BSRB expressed its unwillingness to accept the revised indent and they had stated that the matter will be considered by the Board. In the meeting of the Board held on 11.11.1988, it was decided that no reduction in the original indent was to be done. The BSRB expressed their unwillingness to accommodate the appellant-bank’s request and sent nomination letters to the respondents based on the original indent and also published the results and also intimated the selection on 28.11.1988. The respondents/ candidates aggrieved by the non-absorption filed writ petitions in the High Court seeking mandamus directing the appellant-bank to appoint them in the respective posts. The matter was placed before the Division Bench of the High Court. The Division Bench, observing that as a common merit list was drawn by the BSRB, there can be no dispute that the appointments have to be strictly in accordance with the merit list, in view of the conflicting views expressed in various decisions placed the writ applications before a larger bench to decide the question as to (a) when specific vacancies were intimated by the Gramiya Banks for appointment to the posts of field supervisors and officers and in pursuance of their indent , the BSRB conducted one common examination, and the petitioners were successful, whether they can be denied the orders of appointment by the concerned bank on the ground of financial crisis, (b) when BSRB after conducting examination in respect of all the posts prepared one merit list and because of individual choice, any/some successful candidates were allotted to a particular bank whether the bank, to which any successful candidate is allotted can refuse order of appointment even if the candidate is higher up in the select list. Particularly, in this case while other banks issued appointment orders to other successful candidates, non-issuance of appointment letters by Baitarani Gramiya Bank will be violative of Articles 14 and 16 of the Constitution, and (c) whether a person selected in pursuance of an advertisement for selection has a right to demand order of appointment, if he is higher up in merit list, and others lower in the merit list are appointed in other banks.
9. The full bench held as follows:
“Coming to the question referred to us, we may say that the ground given in the present case for slashing down is “financial crisis”. As to this reason, we would say, as admitted by Shri Dora that the entire finance for Gramiya Banks comes from outside sources; 35% from the sponsor bank, 15% from the concerned State government and the remaining 50% from the Central government. So, there is no financial contribution by the Gramiya Bank. We, therefore, do not understand as to what financial crisis was there or could have been there for the bank at hand to slash down the indent to 14, unless that was a self-created crisis. Shri Dora submits that the crisis was generated because the aforesaid authorised were not carrying out their obligations. That, however, was a matter to be taken up with the concerned authorities. The selected candidates cannot be allowed to suffer because of this, as the result of the same may be that a selectee would not get appointment even if he be higher in merit list whereas a candidate lower in ranking would get appointment, which could be totally against public interest and cannot be allowed to take place. This is our answer to question no. (a).
Question no. (b) answers itself in view of our answer to question no. (a). To reiterate, we say that once an allotment is made to a particular bank, it would not be open to it to refuse appointment which would even be violative of Article 16 of the Constitution.
As to question no. (c), We would state that though in law a selected candidate does not acquire an indefeasible right of appointment in view of what has been held by a constitution bench in Shankarsan Dash v. Union of India, JT 1991 (2) SC 380 = AIR 1991 SC 1612, which was followed by a three judge bench decision in Union Territory of Chandigarh v. Dilbagh Singh, JT 1993 (Suppl.) SC 712 = AIR 1993 SC 16, but the scheme of selection of the officers and other employees of the regional rural banks, to which we have referred, which requires examination of the matter by a centralised agency (the Board) and which permits giving of option and visualises preparation a select list as per descending order of merit, would clothe a selectee higher up in the merit list with a right to demand appointment if a person lower in the list has been appointed in any other bank; any other view would denude his fundamental right available by the force of Article 16 of the Constitution.
The aforesaid are our answers to the three questions. Let the cases be now placed before the bench which had made the reference for their disposal keeping in view the answers given.”
10. The Division Bench after remand by the full bench passed the following order :
“As noted earlier, while referring the cases to the full bench, we had discussed in detail the case of the parties and the contentions raised on their behalf. Therefore, we do not like to burden this order by repeating the same in the said order. For the present purpose, it is sufficient to state that the full bench has answered all the three questions formulated in favour of the petitioners. In that view of the matter, there is little scope for doubt that the petitioners are entitled to the reliefs claimed.
Accordingly, the writ petitions are allowed. The opposite party Baitarani Gramiya Bank is directed to issue appointment orders to the petitioners in the respective posts for which they have been selected forthwith. There will be no order for costs.”
11. Aggrieved by the judgment and order dated 26.09.1994 of the Division Bench of the High Court, the above three appeals were filed.
12. Mr. K.V. Viswanathan, learned counsel appearing for the appellant-bank, submitted that the impugned order has totally overlooked the prejudice that would be caused to public interest if the respondents are directed to be appointed in the appellant-bank. He also submitted that in the advertisement issued by the BSRB, based on their original indent, it was clearly mentioned that the vacancies are approximate and likely to be varied upward or downwards depending on the needs of the indenting banks and that this aspect of the matter has not been considered at all either by the full bench or by the Division Bench of the High Court. He would further submit that in the case of the appellant-bank, the revised indent was submitted on 23.08.1988, long before the publication of the result an intimation of selection was sent to the respondents and the BSRB ought to have sent the nominations on the basis of the revised indent and not on the basis of the original indent and that for the fault of the BSRB, the appellant-bank cannot be prejudiced. In any case, he submitted that the selection/nomination does not confer an indefeasible right on the respondents to seek appointments and the selection intimation was not an offer of appointment when in fact in the selection nomination itself it was mentioned that the offer of appointment was to be made by the bank. It is to be noted that no such offer was made. He further submitted that the bank had reduced the indent for bona fide reasons as stated in the grounds of special leave petition and that the bank had bona fide and genuine reasons for pruning down the indent.
13. Referring to the full bench judgment of the High Court, Mr. Viswanathan, learned counsel submitted that there was no material either before the full bench or before the Division Bench to prove that candidates with lesser merit had been favoured with letters of appointment and in the absence of any material particulars, the full bench could not have been proceeded on the basis that candidates with lesser merit were given offers of appointment and candidates with higher merits were denied. He would further argue that, in any case, it is for the BSRB to accommodate the unabsorbed candidates since it was their fault of having proceeded on the basis of the original indent and not on the basis of the revised indent in spite of their own advertisement clearly intimating the candidates that the vacancies notified were only approximate and are likely to vary upwards or downwards depending on the needs of the indenting bank. Mr. Viswanathan, in support of his contention, placed reliance on the following judgments :
1. Shankarsan Dash v. Union of India1
2. Babita Prasad & Ors. v. State of Bihar & Ors.2
3. State of Bihar & Ors. v. Secretariat Assistant Successful Examinees Union 1986 & Ors.3
4. Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor & Ors. 4
5. State of A.P. & Anr. v. V. Sadanandam & Ors.5
6. Union Territory of Chandigarh v. Dilbagh Singh & Ors.6
14. Concluding his arguments, Mr. Viswanathan submitted that the judgment of the Division Bench impugned in these appeals is liable to be set aside and interfered with.
15. Mr. Vinoo Bhagat, learned counsel appearing for the respondents, in reply to the arguments of Mr. Viswanathan raised a preliminary objection in regard to the maintainability of the present appeals. He said that this Court had already dismissed an earlier special leave petition of the bank being special leave petition (civil) no. 2505 of 1992 by order dated 03.03.1992 against another judgment of the High Court directing the bank to appoint the respondent therein who was placed at serial no. 4 in the same select list of field supervisors in which respondent no. 2 in the present matters (special leave petition no. 738 of 1995) is placed at serial no. 3 and that the respondent no. 2 is at a higher position in the same select list than the respondent in the earlier special leave petition, he cannot be denied appointment when the person below him has been appointed pursuant to the rejection of the earlier special leave petition. He would further submit that the writs issued by the High Court in two earlier writ petitions, O.J.C. no. 1265 of 1991 (the one challenged in the special leave petition mentioned above) and no. 6566 of 1991 (which was not challenged), have been implemented and the writ petitioners, Surya Prasad Rath and Anjan Kumar Mallik, have been appointed in their respective posts and, therefore, it is illegal and improper that the appellant-bank should thereafter challenge the High Court’s judgment in the remaining cases of the present respondents and, therefore, the plea in the present special leave petitions/appeals that the appellant-bank had to produce the indents due to subsequent events was negatived in the two judgments of the High Court also and became final in respect of the same dispute and, therefore, these special leave petitions are liable to be dismissed.
16. Arguing further, learned counsel for the respondents submitted that the appellant-bank was bound to disclose the dismissal of its previous special leave petitions in identical matter, as also the fact that it had implemented the High Court’s writs issued in other similar matters, but it has chosen to indulge in suppression instead and, therefore, the present matters are liable to be dismissed on account of such suppression. In regard to the reasons for reducing the indent given by the bank, learned counsel submitted that the reasons stated in the special leave petitions, namely, the financial constraints etc. find no place in the contemporaneous documentary records and, therefore, the said reasons have been invented subsequently in an attempt to mislead this Court and, therefore, the special leave petitions ought to be dismissed on this ground alone. According to Mr. Vinoo Bhagat, learned counsel for the respondents, the bank’s financial constraints were never cited as the reason before the litigation began and this reason has been dishonestly invented for the purposes of litigation and as correctly noticed by the High Court, the appellant is financed entirely by outside sources.
17. It is further argued that the appellant-bank has not even appointed the persons eligible under its pruned list and that two of the respondents, namely, Tridip Kumar Das at serial no. 4 in the select list of officers and Alekha Prasad Behera at serial no. 3 in the select list of field supervisors were entitled to appointment even if the indent stood reduced to 14 officers and 11 field supervisors and the fact that they have not been appointed makes it clear that the appellants’ case is entirely dishonest. He would further urge that since the appellant – bank did not challenge the judgment of the full bench of the High Court dated 14.09.1993 that judgment attained finality and it is the abuse of the process of the court to try and fault with the judgment in the present matters.
18. The appellant-bank filed rejoinder affidavit denying the allegations made in the counter affidavit. The Chairman of the bank has also filed an affidavit on 10.04.2002 pursuant to the order dated 12.01.1996 of this Court. The said order dated 12.01.1996 reads thus :
“Leave granted
Printing of appeals dispensed with. Appeals will be heard on the SLP paper books with liberty to file additional papers, if any, within ten weeks.
The petitioners will make appointments on the posts as indicated in their last indent on the basis of the merit list sent by the BSRB (respondent no. 4). In respect of the additional persons whose names have been recommended by respondent no. 4 for appointment with the petitioners, it will be open to the respondent no. 4 to proceed on the lines similar to the guidelines contained in the letter dated 31.3.1993, annexure O to the SLPs with regard to recruitment to the clerical cadre persons in regional rural banks.”
19. It was submitted that pursuant to the above order, appointment orders were issued to 9 field supervisors and 14 officers and 2 field supervisors had already been appointed pursuant to the judgment of the High Court dated 08.11.1991 and 18.11.1991 in O.J.C. no. 1265 and O.J.C. no 6566. It was further stated therein that the appellant – bank has also advised the BSRB, Bhubaneswar to take care of the candidates as per direction dated 12.01.1996 of this Court and as such the dossiers in respect of 11 officers and 19 field supervisors which were in excess of the bank’s last indent were returned. It was also submitted in the affidavit that out of 30 candidates, 23 appointment orders were issued by them, 5 officers/field supervisors have joined the appellant-bank on 10.04.1996. It was further submitted that at the relevant time, there is no vacancy in any cadre in the appellant-bank and as per the government of India’s revised guidelines, the appellant-bank is identified as having surplus manpower and that the accumulated loss of the bank as on 31.03.2001 was Rs. 39.69 crores and the bank is not in a position to absorb any more additional establishment cost.
20. This affidavit was verified on 10.04.2002 and signed by the Chairman of the bank. On the above pleadings, the following questions of law would emerge for consideration :
a. Whether the respondents/writ petitioners had acquired any indefeasible right to be appointed to the posts in question, when the decision taken by the appellant-bank not to fill up all the vacancies is based on bona fide and appropriate reasons;
b. Whether the appellant-bank is under any legal obligation or legal duty to fill up any or all of the vacancies :
c. Whether the appellant-bank is entitled to revise their indents submitted to the BSRB long before the publication of the results by the BSRB in view of financial crisis as stated in the grounds of special leave petition and
d. Whether the basis indicated by the appellant-bank can be characterised to be mala fide or unreasonable.
21. We have given our anxious consideration to the points urged by both the learned counsel with reference to the pleadings, documents and annexures.
22. The entire basis for the arguments advanced by counsel for the respondents appears to be the judgment of the High Court of Orissa at Cuttack in O.J.C. no. 1265 of 1991 in the case of Surya Prasad Rath and Another v. Baitarani Gramiya Bank dated 08.11.1991 and the subsequent dismissal of the special leave petition by this Court on 03.03. 1992. In this context, the respondents have failed to notice that there were two other judgments on the issue one of which was subsequent in point of time which accepted the contention of the bank and rejected the writ petition filed by the selected candidates. The said judgments are Ashok Kumar Sarangi v. Secretary, BSRB and Others in O.J.C. no. 2902 of 1990 dated 16.01.1992 (page nos. 81-89 of the paper-book), Bipin Bihari Das and Others v. Baitarani Gramiya Bank and Others in O.J.C. no. 1125 of 1991 dated 04.10.1991 (page nos. 90-93 of the paper-book).
23. The respondents, in our opinion, have failed to appreciate the fact that in view of the conflicting judgments, the Division Bench of the High Court of Orissa by its order dated 19.04.1993 made a reference in this very matter to the full bench, that the supervisors have joined the appellant-bank on 10.04.1996. It was further submitted that at the relevant time, there is no vacancy in any cadre in the appellant-bank and as per the government of India’s revised guidelines, the appellant-bank is identified as having surplus manpower and that the accumulated loss of the bank as on 31.03.2001 was Rs. 39.69 crores and the bank is not in a position to absorb any more additional establishment cost.
24. This affidavit was verified on 10.04.2002 and signed by the Chairman of the bank. On the above pleadings, the following questions of law would emerge for consideration :
a. Whether the respondents/writ petitioners had acquired any indefeasible right to be appointed to the posts in question, when the decision taken by the appellant-bank not to fill up all the vacancies is based on bona fide and appropriate reasons;
b. Whether the appellant-bank is under any legal obligation or legal duty to fill up any or all of the vacancies ;
c. Whether the appellant- bank is entitled to revise their indents submitted to the BSRB long before the publication of the results by the BSRB in view of financial crisis as stated in the grounds of special leave petition and
d. Whether the basis indicated by the appellant-bank can be characterised to be mala fide or unreasonable.
25. We have given our anxious consideration to the points urged by both the learned counsel with reference to the pleadings, documents and annexures.
26. The entire basis for the arguments advanced by counsel for the respondents appears to be the judgment of the High Court of Orissa at Cuttack in O.J.C. no. 1265 of 1991 in the case of Surya Prasad Rath and Another v. Baitarani Gramiya Bank dated 08.11.1991 and the subsequent dismissal of the special leave petition by this Court on 03.03.1992. In this context, the respondents have failed to notice that there were two other judgments on the issue one of which was subsequent in point of time which accepted the contention of the bank and rejected the writ petition filed by the selected candidates. The said judgments are Ashok Kumar Sarangi v. Secretary, BSRB and Others in O.J.C. no. 2902 of 1990 dated 16.01.1992 (page nos. 81-89 of the paper book), Bipin Bihari Dash and Others v. Baitarani Gramiya Bank and Others in O.J.C. no. 1125 of 1991 dated 04.10.1991 (page nos. 90-93 of the paper book).
27. The respondents, in our opinion, have failed to appreciate the fact that in view of the conflicting judgments, the Division Bench of the High Court of Orissa by its order dated 19.04.1993 made a reference in this very matter to the full bench of the Orissa High Court and the full bench of the High Court by its ~14~ dated 14.09.1993 answered the questions and relegated the matter to the Division Bench for disposal in accordance with the answers given. The full bench while answering the questions has categorically held that a selected candidate does not acquire indefeasible right of appointment. In holding so, the full bench has placed reliance on a constitution bench judgment of this Court in Shankarsan Dash v. Union of India (supra) and another judgment by a bench of three- judges of this Court in Union Territory of Chandigarh v. Dilbagh Singh (supra). The only exception made by the full bench (about which the present appellant-bank made a grievance in the present appeals) is that the full bench has held that a selectee higher up in the merit list will have a right to demand appointment if a person lower than in the list has been appointed in any other bank.
28. The full bench overlooked the fact that the advertisement extract (page nos. 38-39 of the paper book) and the paper clipping clearly mentioned the following :
a. ” Bank once opted for can not be changed later”.
b. In the notes under item one it was mentioned that “the above vacancies are approximate and likely to vary upwards or downwards depending on the need of the indenting banks.”
c. From the full advertisement, it is also clear in para (?) in the left-hand column under the head ‘Selection Procedure’ that the finally selected will be allotted to the regional rural bank for which the candidates originally opted.
d. Further in para 10(a), it says (right-hand column 1st line) “the choice will be restricted to one RRB only.”
e. Further in para 10(b) it says :
“10(b). The candidates for posts of officers and field supervisors (posts 1 and 2) should apply in separate applications along with requisite fee for the respective post. But for both the posts his choice will be restricted to a single regional rural bank.”
29. All these clearly go to show that the assumption of the full bench that a common merit list for all the banks is prepared and that a selectee higher in merit list would be overlooked is incorrect. Further, the assumption that the procedure/scheme visualises preparation of a select list as per descending order of merit, would clothe a selectee higher up in the merit list with a right to demand appointment if a person lower in the list has been appointed in any other bank, is also erroneous. No material or factual foundation was laid in the writ petition and nothing has been found regarding this by the full bench. On the contrary, one of the writ petitions annexed the paper publication of the final results and that showed that results were declared qua each bank.
30. Once the premise of the full bench is found to be erroneous, the judgment of the full bench and the impugned order deserve to be set aside.
31. It was argued by learned counsel for the respondents that the bank has stated the aspect of financial crisis/constraints for the first time in the special leave petitions as the reasons mentioned by them in pruning down the indent. This statement is factually incorrect. The Division Bench, by its common order, in O.J.C. nos. 1866, 2981 and 5052 of 1991 while referring to the counter affidavit filed by the bank has clearly stated that on account of various factors including liquidity crisis, ban order for opening new branches and on account of financial burden incurred on account of implementation of agricultural rural debt relief scheme and the award given by the National Industrial Tribunal, the authorities had decided not to fill up the posts though at the time of advertisement indent had been given. Thus, it is seen that in counter affidavit in all the writ petitions, the appellant-bank has raised the aspect of financial crisis. This submission of the respondents is, therefore, liable to be rejected. In regard to the submission made by learned counsel for the respondents though the appellant-bank was bound to disclose the dismissal of its previous special leave petitions in an identical matter, we are of the opinion that the same need not be disclosed in the present special leave petitions since the previous special leave petition was dismissed at the special leave petitions stage (annexure-R1). This Court in a catena of decisions has held that the dismissal of special leave petition by a non-speaking order which does not contain the reasons for dismissal does not amount to acceptance of the correctness of the decision sought to be appealed against. Such an order does not constitute the law laid down by the Supreme Court for the purpose of Article 141. In this context, we may refer to a recent decision of this Court in Kunhayammed & Ors. v. State of Kerala & Anr.1 (three judges)
32. In regard to the argument of learned counsel for the respondents that the full bench judgment of the Orissa High Court was not challenged and, therefore, that judgment has attained finality, learned counsel for the respondents is not correct in submitting so. The appellant-bank could not have challenged the full bench judgment because the full bench answered the questions and relegated the matter to the Division Bench for disposal and the cause of action for filing the present appeals arose only after the Division Bench of the High Court disposed of the matters.
33. In our view, the respondents/ writ petitioners had not acquired any indefeasible right to be appointed to the post in question when the bank has taken a decision not to fill up all the vacancies which is based on sound bona fides and appropriate reasons. The bank is also under no obligation or legal duty to fill up any or all of the vacancies and that the basis indicated by the appellant-bank for pruning the indents cannot at all be characterised to be mala fide or unreasonable. The law is well-settled. This Court has taken the same view in the following judgments.
34. In State of Andhra Pradesh and Another v. V. Sadanandam and Others etc. etc. (supra) this Court has observed as under :
“The mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive. the question of filling up of posts by persons belonging to other local categories or zones is a matter of administrative necessity and exigency. When the rules provide for such transfers being effected and when the transfers are not assailed on the ground of arbitrariness or discrimination, the policy of transfer adopted by the government cannot be struck down.”
35. This Court, in a judgment rendered by a constitution bench in Shankarsan Dash v. Union of India (supra), observed as under :
“Even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right 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.”
36. In Union Territory of Chandigarh v. Dilbagh Singh and Others1, this Court has observed as follows :
“A candidate who finds a place in the select list as a candidate selected for appointment to a civil post does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. He could be aggrieved by his non-appointment only when the administration does so either arbitrarily or for no bona fide reasons. Hence such candidate even if he has a legitimate expectation of being appointed due to his name finding a place in the select list of candidates cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily. In the instant case, when the Chandigarh administration accepted the complaints and cancelled the select list it cannot be said to have acted either arbitrarily or without bona fide and valid reasons.”
37. In Babita Prasad and Others v. State of Bihar and Others (supra), this Court held that a panel, as prepared in the said case, cannot be treated as conferring any vested or indefeasible right to the teachers to be appointed. This Court further held as follows :
“The mere fact that the candidates who had been brought on the panel had been sent for training at the government expense, would also not imply that any right had been created in their favour for appointment after they had completed their training because training was intended to confer eligibility on the candidates for being brought on the list.”
38. In the case of The State of Haryana v. Subash Chander Marwaha & Ors.2, this Court has observed as under :
“The existence of vacancies does not give a legal right to candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the government to decide how many appointments shall be made. The mere fact that a candidate’s name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State government had departed from the Rules in this respect.
In order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance.
Since there was no legal duty on the State government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition was clearly misconceived.”
39. In the case of U.P. Bhumi Sudhar Nigam Ltd. v. Shiv Narain Gupta1, this Court has observed as under :
“….. We are of the view that the High Court fell into patent error in issuing the mandamus in the facts and circumstances of this case. This Court has authoritatively laid down that even if a vacancy is available and the employer bona fide declines to make an appointment, the candidate on the select list has no right whatsoever to claim appointment. In the present case, the post was abolished by the Board of Director in the year 1991. Shiv Narain Gupta in fact challenged before the High Court the action of the Corporation in abolishing the post. Neither the facts of this case nor the law on the subject warranted any interference by the High Court in the writ petition filed by Shiv Narain Gupta. The constitution bench judgment in Shankarsan Dash case was cited before the learned single judge of the High Court. We are constrained to say that the learned judge failed to appreciate the binding ratio of the said judgment.”
40. Our attention was drawn to annexure-J issued by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) dated 31.03.1993 on the subject “Recruitment of Clerical Cadre Personnel in Regional Rural Banks”. In the said communication, course of action was advised to the Chairman of all Banking Services Recruitment Boards to resolve the problem. We are concerned only with regard to the course of action II which reads thus :
“As regards candidates who have already been selected for the posts of clerk of RRBs but have not yet absorbed/appointed, the BSRBs concerned may follow the following Board guidelines :
a. BSRBs may invite indents from all the RRBs in a State in order to make an assessment of their actual requirement.
b. If the number of unabsorbed candidates is more than the indents received from RRBs they may identify the candidates who fulfil the requirements in respect of age, qualification etc. for posting in the public sector banks.
c. They may get an option from such candidates found eligible as stated above, for their posting to the public sector banks.
d. Allegation of the candidates may be made to RRBs/public sector banks in order of merit list already drawn by the BSRBs and only those candidates who are coming in that merit list and are eligible for public sector banks will be allocated to these banks.
2. In addition to the above, BSRBs may also explore the possibility of absorbing the remaining unabsorbed candidates in the RRBs in the adjoining States through RSRBs of these States, after obtaining option from the unabsorbed candidates in this regard.”
41. The respondents in the counter affidavit filed by them has stated that the letter of 31.03.1993 has not been annexed to the special leave petitions. The statement is not correct. The other letter has been annexed as annexure – J and is at page 77 of the paper book. The letter of 31.03.1993 makes it very clear that the cause of action for the writ petitioners is against the BSRB and not against the appellant – bank.
42. The government of India circular dated 31.3.1993, which has been extended to the present case by order dated 12.1.1996 of this Court, presupposes that there can be revision of indent even before declaration of results and even after declaration of results and alternative mechanism has been laid down. Neither the Regional Rural Banks Act, 1976 nor the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988, restricts pruning and/ or mandates that of selectee should be appointed. No rule has been placed.
43. Learned counsel for the respondents did not dispute the legal position. His contention was based on the letter of the BSRB dated 28.11.1988 and he stated that Mr. Surya Prasad Rath has been appointed whereas those above him have not been appointed. The communication dated 28.11.1988 at page 130 has to be read with the reply of the bank (at page 109 of the paper book) where the bank’s query was about the merit list. Further one thing that is clear that selection is qua bank. No factual foundation was laid to show that within the bank a lower selectee was preferred.
44. We have already noticed though the advertisement was published in the newspapers and the examinations were held thereafter on 20.03.1988, the bank had communicated the revised indent by 23.08.1988 well ahead of the intimation of selection and publication of results. The bank had bona fide and genuine reasons for pruning down the indent. If the banks are forced to accommodate officers and field supervisors more than their required indent, it will have a crippling effect on the bank and public interest will stand seriously prejudiced as several employees will have to be unnecessarily retained and public money will have to be expended on them. When public interest competes with private interest, the private interest will have to give way to public interest. In this case, asking the appellant – bank to accommodate as directed by the BSRB would cause loss to public revenue. It has been clearly stated in the counter affidavit filed by the bank before the High Court in the writ petition that on account of various factors including liquidity crisis, ban order for opening new branches and on account of financial burden incurred on account of Implementation of Agricultural Rural Debt Relief Scheme and the award given by the National Industrial Tribunal, the bank had decided not to fill up the posts though at the time of advertisement indents had been given. Thus, it is seen that the decision of the bank not to fill up the posts was due to financial crisis. Therefore, no direction can be given to issue appointment letters to the respondents/writ petitioners though they have come out successful in the selection process.
45. The aforesaid being the decision, we would hold that the respondents/writ petitioners had not acquired any indefeasible right and the decision not to fill up all the vacancies had been taken bona fide reasons and directions as sought for by the respondents cannot, therefore, be issued.
46. Today the position is that the appellant – bank has filed an affidavit setting out how it has implemented the order of this Court dated 12.1.1996. As averred in para 4 therein, there is no vacancy in any cadre in the bank. In the government of India revised guidelines the appellant – bank has been identified as having surplus manpower. The accumulated loss today is in the range of 39.65 crores.
47. Pursuant to the order of this Court, three of the respondents have been admittedly appointed. They are :
(a) Mr. Pallab Kumar Das (OJC No. 1866)
(b) Mr. Alekha Prasad Behera (OJC No. 1866)
(c) Mr. Tridip Kumar Das (OJC No. 5652)
Today 15 years have passed after the advertisement and seven years after the order of this Court dated 12.1.1996. In view of the settled legal position, the respondents do not have any indefeasible right.
48. However, with a view to do justice between the parties and balance the equities, we issue the following directions :
(a) If, however, the business of the bank would require filling up of more vacancies and if the respondents/writ petitioners turn would come as per the merit list, we have no doubt that the concerned respondents/writ petitioners would be absorbed in service as per rules.
(b) The appointment shall be made on the basis of merit/select list if there are vacancies in any cadre.
(c) The select list would remain in force for two years from now.
(d) The appellant- bank, we hope, will consider the question of relaxation of age bar in suitable cases so as to minimize their hardship.
49. We are unable to subscribe to the opinion expressed by the full bench and the Division Bench of the Orissa High Court impugned in these appeals for the reasons stated in paragraphs supra.
50. The judgment dated 14.9.1993 of the full bench and of the judgment dated 26.9.1994 of the Division Bench of the High Court hereby are set aside and the appeals filed by the appellant – bank stand allowed. However, there will be no order as to costs.
1. These appeals are directed against the judgment and order of the Division Bench of the High Court of Orissa dated 26.09.1994 in O.J.C. nos. 1866, 2981 and 5052 of 1991.
2. The High Court, by the impugned judgment, has allowed the writ petitions filed by the respondents herein and has directed the appellant – bank to issue appointment orders to them for the post of officer/field supervisors.
3. For the purpose of recruitment, the Banking Service Recruitment Board (hereinafter referred to as “the BSRB”) issued an advertisement in the newspapers. The contention of the bank before the High Court was that in view of the financial crisis they had revised their indents submitted to the BSRB long before the publication of the results regarding intimation of selection and as such the BSRB ought not to have gone ahead and issued letters of selection based on the original indent submitted by the bank to the candidates and that merely by getting an intimation of selection, no right accrues to the candidates for appointment.
4. The selections to the category of officers in the bank is done by the BSRB. Indents are submitted by the bank to the BSRB. By letter dated 14.01.1987, an indent was placed by the bank to the BSRB. In the said indent for the category of officers, 36 posts were mentioned and for the category of field supervisors, 61 posts were mentioned. Thereafter, by letter dated 23.06.1987, the indent for field supervisors was revised from 61 to 30. By further letter of 18.11.1987 another revised indent was submitted, wherein the requirements were as follows :
Officers Cadre 36
Field Supervisors 30
5. On 28.08.1988 a revised indent was submitted by the bank to the BSRB under which their requirements were as follows :
Officers 14
Field Supervisors 11
6. This letter was replied to by the BSRB on 01.09.1988 whereunder they refused to accommodate the bank’s request. According to the bank, as stated in the grounds of special leave petition, the reasons which had pruned their indent well ahead of the publication of the results were :
a. the bank incurred loss of more than Rs. 7 crores;
b. the target in the various anti-poverty programmes could not be met on account of the loss;
c. the ban imposed by the State government, for the opening of further branches, in view of the loss;
d. due to poor recovery performances, the rural banks became ineligible for refinance from NABARD and
e. due to the award given by the National Industrial Tribunal on 30.04.1990, all staff of Gramiya Bank were equated with the corresponding staff of the sponsor bank as regards pay and allowances and all other benefits with retrospective effect from 1987. In view of this the arrears payable to the existing employees alone came to Rs. 2 crores and establishment expenditure increased by 150%.
7. According to the bank, they had bona fide and genuine reasons for pruning down the indent and the bank had communicated the revised indent by 23.08.1988, well ahead of the publication of the results and if the banks are forced to accommodate officers and field supervisors more than their required indent, it will have a crippling effect on the bank.
8. As already noticed, the bank had placed a revised indent in view of the changed circumstances. However, the BSRB expressed its unwillingness to accept the revised indent and they had stated that the matter will be considered by the Board. In the meeting of the Board held on 11.11.1988, it was decided that no reduction in the original indent was to be done. The BSRB expressed their unwillingness to accommodate the appellant-bank’s request and sent nomination letters to the respondents based on the original indent and also published the results and also intimated the selection on 28.11.1988. The respondents/ candidates aggrieved by the non-absorption filed writ petitions in the High Court seeking mandamus directing the appellant-bank to appoint them in the respective posts. The matter was placed before the Division Bench of the High Court. The Division Bench, observing that as a common merit list was drawn by the BSRB, there can be no dispute that the appointments have to be strictly in accordance with the merit list, in view of the conflicting views expressed in various decisions placed the writ applications before a larger bench to decide the question as to (a) when specific vacancies were intimated by the Gramiya Banks for appointment to the posts of field supervisors and officers and in pursuance of their indent , the BSRB conducted one common examination, and the petitioners were successful, whether they can be denied the orders of appointment by the concerned bank on the ground of financial crisis, (b) when BSRB after conducting examination in respect of all the posts prepared one merit list and because of individual choice, any/some successful candidates were allotted to a particular bank whether the bank, to which any successful candidate is allotted can refuse order of appointment even if the candidate is higher up in the select list. Particularly, in this case while other banks issued appointment orders to other successful candidates, non-issuance of appointment letters by Baitarani Gramiya Bank will be violative of Articles 14 and 16 of the Constitution, and (c) whether a person selected in pursuance of an advertisement for selection has a right to demand order of appointment, if he is higher up in merit list, and others lower in the merit list are appointed in other banks.
9. The full bench held as follows:
“Coming to the question referred to us, we may say that the ground given in the present case for slashing down is “financial crisis”. As to this reason, we would say, as admitted by Shri Dora that the entire finance for Gramiya Banks comes from outside sources; 35% from the sponsor bank, 15% from the concerned State government and the remaining 50% from the Central government. So, there is no financial contribution by the Gramiya Bank. We, therefore, do not understand as to what financial crisis was there or could have been there for the bank at hand to slash down the indent to 14, unless that was a self-created crisis. Shri Dora submits that the crisis was generated because the aforesaid authorised were not carrying out their obligations. That, however, was a matter to be taken up with the concerned authorities. The selected candidates cannot be allowed to suffer because of this, as the result of the same may be that a selectee would not get appointment even if he be higher in merit list whereas a candidate lower in ranking would get appointment, which could be totally against public interest and cannot be allowed to take place. This is our answer to question no. (a).
Question no. (b) answers itself in view of our answer to question no. (a). To reiterate, we say that once an allotment is made to a particular bank, it would not be open to it to refuse appointment which would even be violative of Article 16 of the Constitution.
As to question no. (c), We would state that though in law a selected candidate does not acquire an indefeasible right of appointment in view of what has been held by a constitution bench in Shankarsan Dash v. Union of India, JT 1991 (2) SC 380 = AIR 1991 SC 1612, which was followed by a three judge bench decision in Union Territory of Chandigarh v. Dilbagh Singh, JT 1993 (Suppl.) SC 712 = AIR 1993 SC 16, but the scheme of selection of the officers and other employees of the regional rural banks, to which we have referred, which requires examination of the matter by a centralised agency (the Board) and which permits giving of option and visualises preparation a select list as per descending order of merit, would clothe a selectee higher up in the merit list with a right to demand appointment if a person lower in the list has been appointed in any other bank; any other view would denude his fundamental right available by the force of Article 16 of the Constitution.
The aforesaid are our answers to the three questions. Let the cases be now placed before the bench which had made the reference for their disposal keeping in view the answers given.”
10. The Division Bench after remand by the full bench passed the following order :
“As noted earlier, while referring the cases to the full bench, we had discussed in detail the case of the parties and the contentions raised on their behalf. Therefore, we do not like to burden this order by repeating the same in the said order. For the present purpose, it is sufficient to state that the full bench has answered all the three questions formulated in favour of the petitioners. In that view of the matter, there is little scope for doubt that the petitioners are entitled to the reliefs claimed.
Accordingly, the writ petitions are allowed. The opposite party Baitarani Gramiya Bank is directed to issue appointment orders to the petitioners in the respective posts for which they have been selected forthwith. There will be no order for costs.”
11. Aggrieved by the judgment and order dated 26.09.1994 of the Division Bench of the High Court, the above three appeals were filed.
12. Mr. K.V. Viswanathan, learned counsel appearing for the appellant-bank, submitted that the impugned order has totally overlooked the prejudice that would be caused to public interest if the respondents are directed to be appointed in the appellant-bank. He also submitted that in the advertisement issued by the BSRB, based on their original indent, it was clearly mentioned that the vacancies are approximate and likely to be varied upward or downwards depending on the needs of the indenting banks and that this aspect of the matter has not been considered at all either by the full bench or by the Division Bench of the High Court. He would further submit that in the case of the appellant-bank, the revised indent was submitted on 23.08.1988, long before the publication of the result an intimation of selection was sent to the respondents and the BSRB ought to have sent the nominations on the basis of the revised indent and not on the basis of the original indent and that for the fault of the BSRB, the appellant-bank cannot be prejudiced. In any case, he submitted that the selection/nomination does not confer an indefeasible right on the respondents to seek appointments and the selection intimation was not an offer of appointment when in fact in the selection nomination itself it was mentioned that the offer of appointment was to be made by the bank. It is to be noted that no such offer was made. He further submitted that the bank had reduced the indent for bona fide reasons as stated in the grounds of special leave petition and that the bank had bona fide and genuine reasons for pruning down the indent.
13. Referring to the full bench judgment of the High Court, Mr. Viswanathan, learned counsel submitted that there was no material either before the full bench or before the Division Bench to prove that candidates with lesser merit had been favoured with letters of appointment and in the absence of any material particulars, the full bench could not have been proceeded on the basis that candidates with lesser merit were given offers of appointment and candidates with higher merits were denied. He would further argue that, in any case, it is for the BSRB to accommodate the unabsorbed candidates since it was their fault of having proceeded on the basis of the original indent and not on the basis of the revised indent in spite of their own advertisement clearly intimating the candidates that the vacancies notified were only approximate and are likely to vary upwards or downwards depending on the needs of the indenting bank. Mr. Viswanathan, in support of his contention, placed reliance on the following judgments :
1. Shankarsan Dash v. Union of India1
2. Babita Prasad & Ors. v. State of Bihar & Ors.2
3. State of Bihar & Ors. v. Secretariat Assistant Successful Examinees Union 1986 & Ors.3
4. Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor & Ors. 4
5. State of A.P. & Anr. v. V. Sadanandam & Ors.5
6. Union Territory of Chandigarh v. Dilbagh Singh & Ors.6
14. Concluding his arguments, Mr. Viswanathan submitted that the judgment of the Division Bench impugned in these appeals is liable to be set aside and interfered with.
15. Mr. Vinoo Bhagat, learned counsel appearing for the respondents, in reply to the arguments of Mr. Viswanathan raised a preliminary objection in regard to the maintainability of the present appeals. He said that this Court had already dismissed an earlier special leave petition of the bank being special leave petition (civil) no. 2505 of 1992 by order dated 03.03.1992 against another judgment of the High Court directing the bank to appoint the respondent therein who was placed at serial no. 4 in the same select list of field supervisors in which respondent no. 2 in the present matters (special leave petition no. 738 of 1995) is placed at serial no. 3 and that the respondent no. 2 is at a higher position in the same select list than the respondent in the earlier special leave petition, he cannot be denied appointment when the person below him has been appointed pursuant to the rejection of the earlier special leave petition. He would further submit that the writs issued by the High Court in two earlier writ petitions, O.J.C. no. 1265 of 1991 (the one challenged in the special leave petition mentioned above) and no. 6566 of 1991 (which was not challenged), have been implemented and the writ petitioners, Surya Prasad Rath and Anjan Kumar Mallik, have been appointed in their respective posts and, therefore, it is illegal and improper that the appellant-bank should thereafter challenge the High Court’s judgment in the remaining cases of the present respondents and, therefore, the plea in the present special leave petitions/appeals that the appellant-bank had to produce the indents due to subsequent events was negatived in the two judgments of the High Court also and became final in respect of the same dispute and, therefore, these special leave petitions are liable to be dismissed.
16. Arguing further, learned counsel for the respondents submitted that the appellant-bank was bound to disclose the dismissal of its previous special leave petitions in identical matter, as also the fact that it had implemented the High Court’s writs issued in other similar matters, but it has chosen to indulge in suppression instead and, therefore, the present matters are liable to be dismissed on account of such suppression. In regard to the reasons for reducing the indent given by the bank, learned counsel submitted that the reasons stated in the special leave petitions, namely, the financial constraints etc. find no place in the contemporaneous documentary records and, therefore, the said reasons have been invented subsequently in an attempt to mislead this Court and, therefore, the special leave petitions ought to be dismissed on this ground alone. According to Mr. Vinoo Bhagat, learned counsel for the respondents, the bank’s financial constraints were never cited as the reason before the litigation began and this reason has been dishonestly invented for the purposes of litigation and as correctly noticed by the High Court, the appellant is financed entirely by outside sources.
17. It is further argued that the appellant-bank has not even appointed the persons eligible under its pruned list and that two of the respondents, namely, Tridip Kumar Das at serial no. 4 in the select list of officers and Alekha Prasad Behera at serial no. 3 in the select list of field supervisors were entitled to appointment even if the indent stood reduced to 14 officers and 11 field supervisors and the fact that they have not been appointed makes it clear that the appellants’ case is entirely dishonest. He would further urge that since the appellant – bank did not challenge the judgment of the full bench of the High Court dated 14.09.1993 that judgment attained finality and it is the abuse of the process of the court to try and fault with the judgment in the present matters.
18. The appellant-bank filed rejoinder affidavit denying the allegations made in the counter affidavit. The Chairman of the bank has also filed an affidavit on 10.04.2002 pursuant to the order dated 12.01.1996 of this Court. The said order dated 12.01.1996 reads thus :
“Leave granted
Printing of appeals dispensed with. Appeals will be heard on the SLP paper books with liberty to file additional papers, if any, within ten weeks.
The petitioners will make appointments on the posts as indicated in their last indent on the basis of the merit list sent by the BSRB (respondent no. 4). In respect of the additional persons whose names have been recommended by respondent no. 4 for appointment with the petitioners, it will be open to the respondent no. 4 to proceed on the lines similar to the guidelines contained in the letter dated 31.3.1993, annexure O to the SLPs with regard to recruitment to the clerical cadre persons in regional rural banks.”
19. It was submitted that pursuant to the above order, appointment orders were issued to 9 field supervisors and 14 officers and 2 field supervisors had already been appointed pursuant to the judgment of the High Court dated 08.11.1991 and 18.11.1991 in O.J.C. no. 1265 and O.J.C. no 6566. It was further stated therein that the appellant – bank has also advised the BSRB, Bhubaneswar to take care of the candidates as per direction dated 12.01.1996 of this Court and as such the dossiers in respect of 11 officers and 19 field supervisors which were in excess of the bank’s last indent were returned. It was also submitted in the affidavit that out of 30 candidates, 23 appointment orders were issued by them, 5 officers/field supervisors have joined the appellant-bank on 10.04.1996. It was further submitted that at the relevant time, there is no vacancy in any cadre in the appellant-bank and as per the government of India’s revised guidelines, the appellant-bank is identified as having surplus manpower and that the accumulated loss of the bank as on 31.03.2001 was Rs. 39.69 crores and the bank is not in a position to absorb any more additional establishment cost.
20. This affidavit was verified on 10.04.2002 and signed by the Chairman of the bank. On the above pleadings, the following questions of law would emerge for consideration :
a. Whether the respondents/writ petitioners had acquired any indefeasible right to be appointed to the posts in question, when the decision taken by the appellant-bank not to fill up all the vacancies is based on bona fide and appropriate reasons;
b. Whether the appellant-bank is under any legal obligation or legal duty to fill up any or all of the vacancies :
c. Whether the appellant-bank is entitled to revise their indents submitted to the BSRB long before the publication of the results by the BSRB in view of financial crisis as stated in the grounds of special leave petition and
d. Whether the basis indicated by the appellant-bank can be characterised to be mala fide or unreasonable.
21. We have given our anxious consideration to the points urged by both the learned counsel with reference to the pleadings, documents and annexures.
22. The entire basis for the arguments advanced by counsel for the respondents appears to be the judgment of the High Court of Orissa at Cuttack in O.J.C. no. 1265 of 1991 in the case of Surya Prasad Rath and Another v. Baitarani Gramiya Bank dated 08.11.1991 and the subsequent dismissal of the special leave petition by this Court on 03.03. 1992. In this context, the respondents have failed to notice that there were two other judgments on the issue one of which was subsequent in point of time which accepted the contention of the bank and rejected the writ petition filed by the selected candidates. The said judgments are Ashok Kumar Sarangi v. Secretary, BSRB and Others in O.J.C. no. 2902 of 1990 dated 16.01.1992 (page nos. 81-89 of the paper-book), Bipin Bihari Das and Others v. Baitarani Gramiya Bank and Others in O.J.C. no. 1125 of 1991 dated 04.10.1991 (page nos. 90-93 of the paper-book).
23. The respondents, in our opinion, have failed to appreciate the fact that in view of the conflicting judgments, the Division Bench of the High Court of Orissa by its order dated 19.04.1993 made a reference in this very matter to the full bench, that the supervisors have joined the appellant-bank on 10.04.1996. It was further submitted that at the relevant time, there is no vacancy in any cadre in the appellant-bank and as per the government of India’s revised guidelines, the appellant-bank is identified as having surplus manpower and that the accumulated loss of the bank as on 31.03.2001 was Rs. 39.69 crores and the bank is not in a position to absorb any more additional establishment cost.
24. This affidavit was verified on 10.04.2002 and signed by the Chairman of the bank. On the above pleadings, the following questions of law would emerge for consideration :
a. Whether the respondents/writ petitioners had acquired any indefeasible right to be appointed to the posts in question, when the decision taken by the appellant-bank not to fill up all the vacancies is based on bona fide and appropriate reasons;
b. Whether the appellant-bank is under any legal obligation or legal duty to fill up any or all of the vacancies ;
c. Whether the appellant- bank is entitled to revise their indents submitted to the BSRB long before the publication of the results by the BSRB in view of financial crisis as stated in the grounds of special leave petition and
d. Whether the basis indicated by the appellant-bank can be characterised to be mala fide or unreasonable.
25. We have given our anxious consideration to the points urged by both the learned counsel with reference to the pleadings, documents and annexures.
26. The entire basis for the arguments advanced by counsel for the respondents appears to be the judgment of the High Court of Orissa at Cuttack in O.J.C. no. 1265 of 1991 in the case of Surya Prasad Rath and Another v. Baitarani Gramiya Bank dated 08.11.1991 and the subsequent dismissal of the special leave petition by this Court on 03.03.1992. In this context, the respondents have failed to notice that there were two other judgments on the issue one of which was subsequent in point of time which accepted the contention of the bank and rejected the writ petition filed by the selected candidates. The said judgments are Ashok Kumar Sarangi v. Secretary, BSRB and Others in O.J.C. no. 2902 of 1990 dated 16.01.1992 (page nos. 81-89 of the paper book), Bipin Bihari Dash and Others v. Baitarani Gramiya Bank and Others in O.J.C. no. 1125 of 1991 dated 04.10.1991 (page nos. 90-93 of the paper book).
27. The respondents, in our opinion, have failed to appreciate the fact that in view of the conflicting judgments, the Division Bench of the High Court of Orissa by its order dated 19.04.1993 made a reference in this very matter to the full bench of the Orissa High Court and the full bench of the High Court by its ~14~ dated 14.09.1993 answered the questions and relegated the matter to the Division Bench for disposal in accordance with the answers given. The full bench while answering the questions has categorically held that a selected candidate does not acquire indefeasible right of appointment. In holding so, the full bench has placed reliance on a constitution bench judgment of this Court in Shankarsan Dash v. Union of India (supra) and another judgment by a bench of three- judges of this Court in Union Territory of Chandigarh v. Dilbagh Singh (supra). The only exception made by the full bench (about which the present appellant-bank made a grievance in the present appeals) is that the full bench has held that a selectee higher up in the merit list will have a right to demand appointment if a person lower than in the list has been appointed in any other bank.
28. The full bench overlooked the fact that the advertisement extract (page nos. 38-39 of the paper book) and the paper clipping clearly mentioned the following :
a. ” Bank once opted for can not be changed later”.
b. In the notes under item one it was mentioned that “the above vacancies are approximate and likely to vary upwards or downwards depending on the need of the indenting banks.”
c. From the full advertisement, it is also clear in para (?) in the left-hand column under the head ‘Selection Procedure’ that the finally selected will be allotted to the regional rural bank for which the candidates originally opted.
d. Further in para 10(a), it says (right-hand column 1st line) “the choice will be restricted to one RRB only.”
e. Further in para 10(b) it says :
“10(b). The candidates for posts of officers and field supervisors (posts 1 and 2) should apply in separate applications along with requisite fee for the respective post. But for both the posts his choice will be restricted to a single regional rural bank.”
29. All these clearly go to show that the assumption of the full bench that a common merit list for all the banks is prepared and that a selectee higher in merit list would be overlooked is incorrect. Further, the assumption that the procedure/scheme visualises preparation of a select list as per descending order of merit, would clothe a selectee higher up in the merit list with a right to demand appointment if a person lower in the list has been appointed in any other bank, is also erroneous. No material or factual foundation was laid in the writ petition and nothing has been found regarding this by the full bench. On the contrary, one of the writ petitions annexed the paper publication of the final results and that showed that results were declared qua each bank.
30. Once the premise of the full bench is found to be erroneous, the judgment of the full bench and the impugned order deserve to be set aside.
31. It was argued by learned counsel for the respondents that the bank has stated the aspect of financial crisis/constraints for the first time in the special leave petitions as the reasons mentioned by them in pruning down the indent. This statement is factually incorrect. The Division Bench, by its common order, in O.J.C. nos. 1866, 2981 and 5052 of 1991 while referring to the counter affidavit filed by the bank has clearly stated that on account of various factors including liquidity crisis, ban order for opening new branches and on account of financial burden incurred on account of implementation of agricultural rural debt relief scheme and the award given by the National Industrial Tribunal, the authorities had decided not to fill up the posts though at the time of advertisement indent had been given. Thus, it is seen that in counter affidavit in all the writ petitions, the appellant-bank has raised the aspect of financial crisis. This submission of the respondents is, therefore, liable to be rejected. In regard to the submission made by learned counsel for the respondents though the appellant-bank was bound to disclose the dismissal of its previous special leave petitions in an identical matter, we are of the opinion that the same need not be disclosed in the present special leave petitions since the previous special leave petition was dismissed at the special leave petitions stage (annexure-R1). This Court in a catena of decisions has held that the dismissal of special leave petition by a non-speaking order which does not contain the reasons for dismissal does not amount to acceptance of the correctness of the decision sought to be appealed against. Such an order does not constitute the law laid down by the Supreme Court for the purpose of Article 141. In this context, we may refer to a recent decision of this Court in Kunhayammed & Ors. v. State of Kerala & Anr.1 (three judges)
32. In regard to the argument of learned counsel for the respondents that the full bench judgment of the Orissa High Court was not challenged and, therefore, that judgment has attained finality, learned counsel for the respondents is not correct in submitting so. The appellant-bank could not have challenged the full bench judgment because the full bench answered the questions and relegated the matter to the Division Bench for disposal and the cause of action for filing the present appeals arose only after the Division Bench of the High Court disposed of the matters.
33. In our view, the respondents/ writ petitioners had not acquired any indefeasible right to be appointed to the post in question when the bank has taken a decision not to fill up all the vacancies which is based on sound bona fides and appropriate reasons. The bank is also under no obligation or legal duty to fill up any or all of the vacancies and that the basis indicated by the appellant-bank for pruning the indents cannot at all be characterised to be mala fide or unreasonable. The law is well-settled. This Court has taken the same view in the following judgments.
34. In State of Andhra Pradesh and Another v. V. Sadanandam and Others etc. etc. (supra) this Court has observed as under :
“The mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive. the question of filling up of posts by persons belonging to other local categories or zones is a matter of administrative necessity and exigency. When the rules provide for such transfers being effected and when the transfers are not assailed on the ground of arbitrariness or discrimination, the policy of transfer adopted by the government cannot be struck down.”
35. This Court, in a judgment rendered by a constitution bench in Shankarsan Dash v. Union of India (supra), observed as under :
“Even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right 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.”
36. In Union Territory of Chandigarh v. Dilbagh Singh and Others1, this Court has observed as follows :
“A candidate who finds a place in the select list as a candidate selected for appointment to a civil post does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. He could be aggrieved by his non-appointment only when the administration does so either arbitrarily or for no bona fide reasons. Hence such candidate even if he has a legitimate expectation of being appointed due to his name finding a place in the select list of candidates cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily. In the instant case, when the Chandigarh administration accepted the complaints and cancelled the select list it cannot be said to have acted either arbitrarily or without bona fide and valid reasons.”
37. In Babita Prasad and Others v. State of Bihar and Others (supra), this Court held that a panel, as prepared in the said case, cannot be treated as conferring any vested or indefeasible right to the teachers to be appointed. This Court further held as follows :
“The mere fact that the candidates who had been brought on the panel had been sent for training at the government expense, would also not imply that any right had been created in their favour for appointment after they had completed their training because training was intended to confer eligibility on the candidates for being brought on the list.”
38. In the case of The State of Haryana v. Subash Chander Marwaha & Ors.2, this Court has observed as under :
“The existence of vacancies does not give a legal right to candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the government to decide how many appointments shall be made. The mere fact that a candidate’s name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State government had departed from the Rules in this respect.
In order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance.
Since there was no legal duty on the State government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition was clearly misconceived.”
39. In the case of U.P. Bhumi Sudhar Nigam Ltd. v. Shiv Narain Gupta1, this Court has observed as under :
“….. We are of the view that the High Court fell into patent error in issuing the mandamus in the facts and circumstances of this case. This Court has authoritatively laid down that even if a vacancy is available and the employer bona fide declines to make an appointment, the candidate on the select list has no right whatsoever to claim appointment. In the present case, the post was abolished by the Board of Director in the year 1991. Shiv Narain Gupta in fact challenged before the High Court the action of the Corporation in abolishing the post. Neither the facts of this case nor the law on the subject warranted any interference by the High Court in the writ petition filed by Shiv Narain Gupta. The constitution bench judgment in Shankarsan Dash case was cited before the learned single judge of the High Court. We are constrained to say that the learned judge failed to appreciate the binding ratio of the said judgment.”
40. Our attention was drawn to annexure-J issued by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) dated 31.03.1993 on the subject “Recruitment of Clerical Cadre Personnel in Regional Rural Banks”. In the said communication, course of action was advised to the Chairman of all Banking Services Recruitment Boards to resolve the problem. We are concerned only with regard to the course of action II which reads thus :
“As regards candidates who have already been selected for the posts of clerk of RRBs but have not yet absorbed/appointed, the BSRBs concerned may follow the following Board guidelines :
a. BSRBs may invite indents from all the RRBs in a State in order to make an assessment of their actual requirement.
b. If the number of unabsorbed candidates is more than the indents received from RRBs they may identify the candidates who fulfil the requirements in respect of age, qualification etc. for posting in the public sector banks.
c. They may get an option from such candidates found eligible as stated above, for their posting to the public sector banks.
d. Allegation of the candidates may be made to RRBs/public sector banks in order of merit list already drawn by the BSRBs and only those candidates who are coming in that merit list and are eligible for public sector banks will be allocated to these banks.
2. In addition to the above, BSRBs may also explore the possibility of absorbing the remaining unabsorbed candidates in the RRBs in the adjoining States through RSRBs of these States, after obtaining option from the unabsorbed candidates in this regard.”
41. The respondents in the counter affidavit filed by them has stated that the letter of 31.03.1993 has not been annexed to the special leave petitions. The statement is not correct. The other letter has been annexed as annexure – J and is at page 77 of the paper book. The letter of 31.03.1993 makes it very clear that the cause of action for the writ petitioners is against the BSRB and not against the appellant – bank.
42. The government of India circular dated 31.3.1993, which has been extended to the present case by order dated 12.1.1996 of this Court, presupposes that there can be revision of indent even before declaration of results and even after declaration of results and alternative mechanism has been laid down. Neither the Regional Rural Banks Act, 1976 nor the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988, restricts pruning and/ or mandates that of selectee should be appointed. No rule has been placed.
43. Learned counsel for the respondents did not dispute the legal position. His contention was based on the letter of the BSRB dated 28.11.1988 and he stated that Mr. Surya Prasad Rath has been appointed whereas those above him have not been appointed. The communication dated 28.11.1988 at page 130 has to be read with the reply of the bank (at page 109 of the paper book) where the bank’s query was about the merit list. Further one thing that is clear that selection is qua bank. No factual foundation was laid to show that within the bank a lower selectee was preferred.
44. We have already noticed though the advertisement was published in the newspapers and the examinations were held thereafter on 20.03.1988, the bank had communicated the revised indent by 23.08.1988 well ahead of the intimation of selection and publication of results. The bank had bona fide and genuine reasons for pruning down the indent. If the banks are forced to accommodate officers and field supervisors more than their required indent, it will have a crippling effect on the bank and public interest will stand seriously prejudiced as several employees will have to be unnecessarily retained and public money will have to be expended on them. When public interest competes with private interest, the private interest will have to give way to public interest. In this case, asking the appellant – bank to accommodate as directed by the BSRB would cause loss to public revenue. It has been clearly stated in the counter affidavit filed by the bank before the High Court in the writ petition that on account of various factors including liquidity crisis, ban order for opening new branches and on account of financial burden incurred on account of Implementation of Agricultural Rural Debt Relief Scheme and the award given by the National Industrial Tribunal, the bank had decided not to fill up the posts though at the time of advertisement indents had been given. Thus, it is seen that the decision of the bank not to fill up the posts was due to financial crisis. Therefore, no direction can be given to issue appointment letters to the respondents/writ petitioners though they have come out successful in the selection process.
45. The aforesaid being the decision, we would hold that the respondents/writ petitioners had not acquired any indefeasible right and the decision not to fill up all the vacancies had been taken bona fide reasons and directions as sought for by the respondents cannot, therefore, be issued.
46. Today the position is that the appellant – bank has filed an affidavit setting out how it has implemented the order of this Court dated 12.1.1996. As averred in para 4 therein, there is no vacancy in any cadre in the bank. In the government of India revised guidelines the appellant – bank has been identified as having surplus manpower. The accumulated loss today is in the range of 39.65 crores.
47. Pursuant to the order of this Court, three of the respondents have been admittedly appointed. They are :
(a) Mr. Pallab Kumar Das (OJC No. 1866)
(b) Mr. Alekha Prasad Behera (OJC No. 1866)
(c) Mr. Tridip Kumar Das (OJC No. 5652)
Today 15 years have passed after the advertisement and seven years after the order of this Court dated 12.1.1996. In view of the settled legal position, the respondents do not have any indefeasible right.
48. However, with a view to do justice between the parties and balance the equities, we issue the following directions :
(a) If, however, the business of the bank would require filling up of more vacancies and if the respondents/writ petitioners turn would come as per the merit list, we have no doubt that the concerned respondents/writ petitioners would be absorbed in service as per rules.
(b) The appointment shall be made on the basis of merit/select list if there are vacancies in any cadre.
(c) The select list would remain in force for two years from now.
(d) The appellant- bank, we hope, will consider the question of relaxation of age bar in suitable cases so as to minimize their hardship.
49. We are unable to subscribe to the opinion expressed by the full bench and the Division Bench of the Orissa High Court impugned in these appeals for the reasons stated in paragraphs supra.
50. The judgment dated 14.9.1993 of the full bench and of the judgment dated 26.9.1994 of the Division Bench of the High Court hereby are set aside and the appeals filed by the appellant – bank stand allowed. However, there will be no order as to costs.
