SUPREME COURT OF INDIA
State of Bihar and Others
Vs
Amrendra Kumar Mishra
Appeal (Civil) 4261 of 2006 (Arising Out of S.L.P. (Civil) No. 26370 of 2005)
(S. B. Sinha and Dalveer Bhandari, JJ)
26.09.2006
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 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 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 0, this
Court held:
"It 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 , 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"
Yet again in Surinder Singh and Others v. State of Punjab and Another 2, 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."
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 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
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.