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CASE NO.:

Appeal (civil) 2050-2052 of 1996

PETITIONER:

BAITARANI GRAMIYA BANK

RESPONDENT:

PALLAB KUMAR AND ORS.

DATE OF JUDGMENT: 10/09/2003

BENCH:

M.B. SHAH & DR. AR. LAKSHMANAN

JUDGMENT:

JUDGMENT

2003 Sjupp(3) SCR 571

The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. : 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.

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.

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.

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 18.11.1987 another revised indent was submitted, wherein the

requirements were as follows :

Officers Cadre ... 36

Field Supervisors ... 30

On 23.08.1988 a revised indent was submitted by the Bank to the BSRB under

which their requirements were as follows :

Officers ... 14

Field Supervisors ... 11

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 :

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(a) the Bank incurred loss of more than Rs. 7. crores;

(b) the target in the various anti-poverty programmer 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 come to Rs. 2. crores and

establishment expenditure increased by 150%.

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.

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 Baitarini 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.

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,

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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, AIR (1991) SC 1612, which was followed by a three Judge Bench

decision in Union of Chandigarh v. Dilbagh Singh, 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 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, 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."

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."

Aggrieved by the judgment and order dated 26.09.1994 of the Division Bench

of the High Court, the above three appeals were filed.

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

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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 a 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.

Referring to the Full Bench judgment of the High Court, Mr. Viswanathan,

learned counsel submitted that there was no material cither 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 intimated 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 India reported in [1991] 3 SCC 47.

2. Babita Prasad & Ors. v. State of Bihar & Ors., reported in [1993] Supp.

3 SCC 268.

3. State of Bihar & Ors. v. Secretariat Assistant Successful Examinees

Union (1986) & Ors. reported in [1994] 1 SCC 126.

4. Rani Laxmibai Kshetriya, Griming Bank v. Chand Behari Kapoor & Ors.,

reported in [1998] 7 SCC 489.

5. State of A.P. & Anr. v. V. Sadanandam & Ors. reported in AIR (1989) SC

2060.

6. Union Territory of Chandigarh v. Dilbagh Singh & Ors., reported in

[1993] 1 SCC 154.

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.

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, OJ.C. No. 1265 of 1991 (the one challenged in the special leave

petition mentioned above) and No. 6566 of 1991 (which was not challenged),

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have been implemented and the writ petitioners, Soya 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.

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.

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 Dass 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 appellant's case is entirely

dishonest. He would further urge that since the appellant-Bank did not

challenge that 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.

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 appointmetns 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."

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. 6506. 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

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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 man-power 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.

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

idefeasible 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

characterized to be mala fide or unreasonable.

We have given our anxious consideration to the points urged by both the

learned counsel with reference to the pleadings, documents and annexures.

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 03.3.1992. In this context, the respondents

has failed to notice that there were two other judgments on the issue one

of the 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 Sprang v. Secretary, BSRB

and Others, in O.J.C. No. 2902 of 1990 (page Nos. 81-89 of the paper-book.

Bikini 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).

The respondents, in our opinion, has 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 judgment-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 Shankarasan Dass v. Union of

India reported in AIR (1991) SC 1612 equivalent to [1991] 3 SCC 47 and

another judgment by a Bench of three-judges of this Court in Union

Territory of Chandigarh v. Dilbagh Singh reported in AIR (1993) SC 16

equivalent to [1993] 1 SCC 154. 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.

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The Full Bench overlooked the fact that the advertisement extract (page

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."

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.

Once the permise of the Full Bench is found to be erroneous, the judgment

of the Full Bench and the impugned order deserve to be set aside.

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 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-Rl). 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

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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., reported in

[2000] 6 SCC 359 (Three Judges).

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 apellant-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.

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 characterized to be mala fide or unreasonable. The law is well-

settled. This Court has taken the same view in the following judgments.

In State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. Etc. Etc. AIR

(1989) SC 2060, 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."

This Court, in a judgment rendered by a Constitution Bench in Shankarsan

Dash v. Union of India, [1991] 3 SCC 47, 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 of

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."

In Union Territory of Chandigarh v. Dilbagh Singh and Ors., [1993] 1 SCC

154, 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,

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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 of without bona fide and valid reasons."

In Babita Prasad and Ors. v State of Bihar and Ors., [1993] Supp. 3 SCC

268, 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."

In the case of the State of Haryana v. Subash Chander Marwaha & Ors.,

reported in [1974] 3 SCC 220, 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." In the case of U. P. Bhumi Sudhar Nigam Ltd. v. Shiv Narain

Gupta. reported in [1994] Supp. 2 SCC 541, 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 lilst 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 th learned Judge

failed to appreciate the binding ratio of the said judgment."

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 :

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"As regards candidate 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 RSRBs 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."

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.

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, pre-supposes

that there can be revision of indent even before declaration of results and

even after declaration of results and alternative machanism 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 salectee should be

appointed. No rule has been placed.

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. 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 appellent-Bank to accommodate

as directed by the 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

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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 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.

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 respondent cannot, therefore, be issued.

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.

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. 2981)

(c) Mr. Tridip Kumar Das (OJC No. 5052)

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.

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 he 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.

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.

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.