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PETITIONER: RANI LAXMIBAI  KSHETRIYA ,&  GRAMIN BANK CHAIRMAN.

       Vs.

RESPONDENT: CHAND BEHARI KAPOOR & ORS. & KANTYA NAOWANI & ORS.

DATE OF JUDGMENT:       09/09/1998

BENCH: SUJATA V. MANOHAR & G.B. PATTANAIK

JUDGMENT:

PATTANAlK, J.

     The  judgment  and order dated 22nd December, 1992  of the  Division  Bench of Allahabad High Court is the  subject matter  of challenge in these appeals.  By the said judgment the  High Court directed the appellant - bank to appoint the respondents  against the vacancies of Field Supervisors  and prohibited  the  appellant from filling up the vacancies  by making  appointments  to the post of Field Supervisors  from outside  the list prepared in May, 1984 in Civil Appeal Nos. 2650-55 of 1993.  By the said common judgment the High Court also  directed  the appellant to appoint the  respondent  in Civil A.ppeal No.  2649 of 1993 as Probationary Officer.

     The  respondents filed writ petitions contending inter alia   that  an  advertisement   had  been  issued  inviting applications  for 35 posts of Probationary Officers  (Branch Managers  ) and 35 posts of Field Supervisors on  18.7,1983. The  respondents  applied  for  one of the  posts  of  Field Supervisor/Probationary  Officer and appeared at the written test  conducted  by the appellant for selection.   On  being declared  successful  in  the written test  they  were  also called  for interview and finally were included in the  list of  selected  candidates  and  as such was  eligible  to  be appointed   as   Field    Supervisor/Probationary   Officer. Subsequent  to the said advertisement the appellant  decided to increase the number of posts of Field Supervisors from 35 to  55 but notwithstanding the respondents inclusion in  the list  of successful candidates only 26 Field Supervisors and 36  Probationary  Officers were appointed.  The life of  the panel of successful candidates which was to remain operative for  one year was extended for a period of six months by the Board  of the bank in its meeting dated 28.3.1985.  But  yet the  respondents  could not be appointed and on  account  of disgruntlement   amongst  the  respondents   there  was   an agitation  and  ultimately an agreement was reached  between the  officers  of the bank and the members of the union  and the  bank  agreed  to further extend the life of  the  panel until  all persons included in the list are absorbed.   This agreement  was  reached on 16.10.1985.  But in spite of  the aforesaid  agreement no appointments having been made,  they approached the High Court for aecessary direction.

     The bank in its counter-affidavit denied its liability to  appoint  all the persons who were in the panel as  Field Supervisors  or Probationary Officers.  The further stand of

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the  bank  was that inclusion of a candidate’s name  in  the panel  does not confer an indefeasible right to be  enforced by  way  of issuing a writ of mandamus.  The bank also  took the  stand  that  in accordance with the resolution  of  the Finance  Ministry conveyed to all banks the life of a  panel lapses  after  one year, and therefore,  respondents  cannot claim  any  nght  to be appointed as  Field  Supervisors  or Probationary  Officers.  Supplementary affidavits were  also filed on behalf of the bank indicating therein that no posts are  available,  and  therefore question of  appointment  of respondents does not arise.

     The  High  Court by the impugned judgment came to  the conclusion  that  it  cannot be believed that  there  is  no vacancy  in  the bank to the post of Field Supervisor.   The High  Court  also relying upon a notification issued by  the Ministry  of  Home  Affairs,  Department  of  Personnel  and Administrative  Reforms  came  to the conclusion  that  list prepared does not got exhausted after expiry of one year and it  remains  valid till all the candidates mentioned in  the list  are  appointed.  According to the High Court the  bank has an obligation to appoint candidates against the declared vacancies  and  that claim cannot be resisted.   With  these conclusions  the High Court directed the bank - appellant to appoint  the  respondents as Field Supervisor/Field  Officer and hence the present appeal.

     Mr.   Mehta,  the  learned counsel appearing  for  the appellant  contended  that an applicant has no  indefeasible right to be appointed even if he is selected and included in the  merit list and even if a vacancy exists in the post for which  the  application had been made.  But in the  case  in hand  there  did not exist any vacancy, and  therefore,  the High  Court committed serious error in issuing the  impugned direction  to  appoint the respondents against the  post  of Field Supervisor, Mr.  Mehta further submitted that the life of  the  panel  which  was  drawn  on  2.5.1984  expired  on 2.5.1985.   By virtue of the decision of the Board the  said life has been extended for six months and again by virtue of the  agreement between the parties dated 13.10.1985 it stood further  extended  by  six  months   and  panel  expired  on 30.4,1986.   in  this view of the matter no direction  could have  been  given  by the High Court  to  issue  appointment letters  to  the  respondents  by its  judgment  dated  22nd December,  1992.  Mr.  Mehta also urged that the High  Court committed  serious  error in relying upon  the  notification issued  by  the  Ministry  of Home  Affairs,  Department  of Personnel  and Administrative Reforms on the question of the period  for which a panel would remain alive inasmuch as the said  circular of the Home Department has no binding  effect so  far as the appellant bank is concerned and on the  other hand  it  is  a circular of the Finance  Ministry  which  is binding  and  under which the life of a panel remains  valid for  a period of one year from its preparation.  The  teamed counsel also submitted that the conclusion of the High Court that  vacancy  exists is erroneous and in arriving  at  that conclusion  the  High Court relied upon the decision of  the bank  to  open more branches and consequential  creation  of vacancies  but infact no such branch has been opened and  no vacancy  exists.  Mr.  Mehta lastly submitted that under the constitutional  scheme engrafted under Articles 14 and 16 of the   Constitution   a  court  can   at  the   most   direct consideration  of the case of an applicant if it finds  that he  has  been  denied of such consideration  but  the  court cannot direct appointment of an applicant against any post.

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     Mr.   Rakesh  Dwivedi,  the   learned  senior  counsel appearing for the respondents did not dispute with the legal proposition  that:  mere inclusion in the list of successful candidates  does  not  confer an indefeasible  right  to  be appointed.   He, however, contended that the employer  while filling up of the vacancies for which advertisement had been issued  has to act bona fide and not arbitrarily and in  the case  in  hand the High Court has granted the  relief  after coming  to the conclusion that there exist vacancies in  the cadre  and  no Justifiable reason had been advanced for  not fixing  up those vacancies and in such a situation the court would be amply justified in issuing mandamus to the employer to consider a case of appointment of the applicant who after undertaking the test got themselves selected and are waiting for  appointment.   On  the basis of assertion made  by  the appellant  in the special leave petition filed in this court to the effect "by 31.12.85 19 more branches were opened" Mr. Dwivedi submitted that the High Court was fully justified in coming  to  the  conclusion that there exist  vacancies  and non-filling  up of those vacancies has rightly been held  to be  arbitrary.   Mr.   Dwivedi, the learned  senior  counsel further  submitted that the bank not having controverted the contention  that  out of the Field Supervisors who had  been appointed,  six  of  them resigned, even  though  the  court specifically  directed  to give reply, the  conclusion  that there  exist vacancies in the cadre of Field Supervisors  is unassailable  and as such the right of the respondents to be appointed  against  those  vacancies cannot  be  arbitrarily taken  away.  The learned counsel ultimately submitted  that in  the facts and circumstances of the case in hand there is no  infirmity  in the judgment of the High  Court  requiring interference by this Court.

     In  view of rival submissions at the Bar the following questions arise for our consideration:

     1)  Is  the  High Court justified in arriving  at  the conclusion  that there exist vacancies in the post of  Field Supervisors in the bank?

     II)  Does  inclusion of name in the list  of  selected candidates  confer any right to be appointed which could  be enforced by issuance of a writ of mandamus?

     Ill) What is the period for which a list of successful pandidates remain alive and after expiry of its life can the court direct appointments to be made from the said list?

     IV)  Did  the agreement dated 13.10.1985  contain  any stipulation  that  the list of successful  candidates  would remain  alive  until those in the list are appointed in  the bank?

     Coming  to  the first question it transpires that  the appellant bank opened only two branches in the rural area in the  year 1982.  For extending its banks, it had applied  to the Reserve Bank of India for 30 new licenses for opening of new  branches.  Calculating the number of officers which may be  necessary  to man these new branches, advertisement  had been  issued on 18.7.1983 inviting applications for 35 posts of  Probationary Officers and 35 posts of Field Supervisors. The  appellant then applied to the Reserve Bank for licenses to  open  27 more branches in the year 1983 and during  1984 and  1985 similar applications had been made for licenses to

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open  20  branches in 1984 and 17branches in the year  1985. in  anticipation of grant of licenses by the Reserve Bank of India  and  consequential opening of branches  in  different rural areas the appellant had taken the decision to increase the  number  of posts of Probationary Officer’s as  well  as Filed  Supervisors.   But  as against  94  applications  for licenses  for opening new branches in fact only 46  branches had been opened and there could not be expansion of business activity  by  opening  new branches because  of  the  reused licensing  policy  of  the Reserve Bank of India  issued  in October,  1985.   The  appellant  had  categorical  asserted before  the  High Court that there exist no vacancy  in  the cadre  of  Fie/d Supervisor or Probationary Officer  and  in view  of such assertion it was for the respondents who claim the  right  of  being appointed to establish  that  in  fact vacancies  exist.  But we do not find any reliable materials produced by the respondents from which a conclusion could be arrived at that there exist vacancies in the bank.  The High Court, however, entered into the arena of calculation basing upon  the principle that there should be appointment of  one Field  Officer for 500 accounts as was decided by the  Board in  its  resolution and taking into account the 46  branches which  the  bank had the number of vacancies in the post  of Field  Supervisors  must  be much more than 55 and  only  26 Field  Supervisors  had  been   appointed  pursuant  to  the advertisement  dated 18.7.1983.  This process of  conclusion in  our  considered opinion is wholly erroneous and  is  not permissible  for  a  court in exercise of  its  jurisdiction under  Article 226 of the Constitution.  As has been  stated earlier  the process of selection to different posts in  the bank  being made in anticipation of opening of new  branches and  the requirement of officers for new branches.  But that does not mean that at the material point of time in fact any vacancy  exists  and  at any rate no materials  having  been produced  by the respondents, the court could not have  come to  the  conclusion  that vacancies exist.  It  is  in  this connection,  it  would  also be appropriate to  notice  that whether  six of the Field Supervisors appointed resigned and thus  consequential  vacancies  were   available.   We  have carefully  scrutinised  the  averments   made  in  the  writ petitions filed by the respondents in the High Court as well as the rejoinder affidavit filed in the said court and we do not  find any assertion has been made in that regard.   From the impugned judgment, however, it appears that in course of argument  a  contention in that regard had been advanced  by the  respondents  and the bank had been called upon to  give its  reply  but  no positive reply had been filed  the  High Court  jumped  to  the coclusion that in  fact  six  persons resigned  and  consequential  vacancies   were  there.   We, however, are unable to sustain this line of reasoning of the High  Court.   The  writ  petitioners not  having  made  any averments alleging resigning of six of the Field Supervisors after being appointed the bank had no obligation to give any reply,  in course of hearing if a contention had been raised and supporting material is produced then the bank might have been obliged to file the specific reply but no such material appears to have been produced by the writ petitioners before the  High Court and in such context absence of reply by  the bank  does not ipso facto establishes the contention raised. It  is too well’ settled that die petitioner who  approaches the  court  invoking the extra-ordinary jurisdiction of  the Court  under  Article 226 must fully aver and establish  his rights  flowing  from the bundle of facts thereby  requiring respondent  to  indicate  its stand either by denial  or  by positive assertions.  But in the absence of any averments in

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the  writ petition or even in the rejoinder affidavit it  is not  permissible for a court to arrive at a conclusion on  a factual  position merely on the basis of submissions made in course  of hearing.  The High Court, therefore, in our  view committed  serious  error in coming to the  conclusion  that there  existed vacancies in the post of Field Supervisor  on the  materials produced before it.  In fact the  respondents herein  who  were the petitioners in the High Court had  not produced  any  material  in  support  of  their  stand  that vacancies  existed and yet appointments have not been  made. We are of the considered opinion that conclusion of the High Court  that there existed vacancies is unsustainable in  law and is accordingly set aside.

     Coming to the second question, it requires no detailed scrutiny  and it is well establish that inclusion of name in the  list  of  successful  candidates  does  not  confer  an indefeasible  right to be appointed.  it has been so held in the Constitution Bench decision of this Court in the case of SHANKARSAN  DASH vs.  UNION OF INDIA, (1991) 3 SCC, 47.   in the said case the court has gone to the extent of following: ..........L.....T.......T.......T.......T.......T.......T..J

         "It  is  not  correct to say that if a  number  of           vacancies   are  notified   for  appointment   and           adequate  number of candidates are found fit,  the           successful  candidates  acquire   an  indefeasible           right to be appointed which cannot be legitimately           denied.    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.  " L.....I.........T.......T.......T.......T.......T.......T..J

     Mr.   Dwivedi,  the  learned senior  counsel  for  the respondents  also  did not join issue on this  principle  of law.  He, however, had raised the issue on the question that there   was  no  justifiable   reason  for  not   appointing respondents   in  the  vacancies   which  still  exist   and consequentially  the action of the appellant must be held to be arbitrary.  But this submission is devoid of any force in view  of our conclusion on the first question that there did not  exist  any vacancy in the post of Field  Supervisor  or Probationary  Officer.  In this view of the matter,  neither any  right  accrued to the respondents on being included  in the  list of successful candidates nor their non-appointment can be held to be arbitrary or discriminatory.

     So far as the third question is concerned, namely, for how  long a pane) prepared should be kept alive, it  appears that  the  Government of India in the Ministry  of  Finance, Department  of  Economic Affairs (Banking Division)  by  its letter  dated  30th September, 1980 had communicated to  the Chairman  of all regional rural banks that the panel  should normally be kept alive only for a period of one year and i’f any  deviation from the said guidelines becomes necessary in the  interest of the bank then it should be undertaken  with the  prior  permission of the Board of Directors  and  under intimation  to  the  Government  in  the  Banking  Division. Notwithstanding  the  aforesaid guidelines issued as it  was observed  that  several rural banks stiff took  recourse  to extending  the  validity  of  the  panel  for  long  periods

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stretching  over the 2/3 years on obtaining the approval  of the  Board, the Ministry of Finance by its letter dated 19th September,  1983  again communicated to the Chairman of  all regional rural banks that preparation of panels to cover the requirements  of regional rural banks for 2/3 years and then extend  the validity of the panel beyond one year cannot  be construed as merely a deviation and it is doubtful if it can be  considered even as being in the interest of the regional rural  bank from long term point of view.  Under Section  24 of  the Regional Rural Banks Act, 1976, a rural bank in  the discharge  of its functions is required to be guided by such directions  as the Central Government may after consultation with  the  reserve Bank give in regard to matters of  policy involving  public  interest.   In   view  of  the  aforesaid provisions  of the Act, the directions/guidelines issued  by the  Central Government indicating the periods for which the life of a panel would kept alive has a binding effect on the bank, and therefore, in our considered opinion so far as the life  of the panel prepared by the rural banks are concerned it  must  be  held that same remain alive ordinarily  for  a period  of one year.  The High Court committed serious error in  relying  upon  the  circular of  the  Ministry  of  Home Affairs,  Department of Personnel and Administrative Reforms to come to the conclusion that the panel remains alive until all  the  persons  in  the panel are  appointed.   The  said conclusion is wholly erroneous and cannot be sustained.

     Though the panel ordinarily remains alive for one year but  in accordance with the guidelines of the Government  of India,  Ministry  of Finance, it would be open to  Board  to extend the said period under intimation to the Government in the Banking Division.  in the case in hand the resolution of the  Board  dated 28.3.1985 indicates that the life  of  the panel  had  been  extended by for a further  period  of  six months,  and  therefore, after expiry of the said period  it was  not  open for the court to issue direction  to  appoint people from the said panel.

     Coming  to  the next question the answer to  the  same depends  upon  the  terms and conditions  of  the  agreement between  the  parties  dated  16.10.1985.   The  minutes  of discussion  as recorded no doubt indicates that some members of  the  Board did express their views that the life of  the panel  should  be  extended  till the  last:   candidate  is adsorbed  by  the  bank  as  it   is  the  moral  and  legal responsibility  of the bank.  If further appears that it was decided to have the concerted efforts for obtaining licenses for  opening new branches but the very agreement between the parties was to the effect that fist of successful candidates for  the  appointment of Field Supervisors and  Probationary Officers  declared  on 2.5.1984 will be valid for a  further period  of  six  months  after   31.10.1985  and  that   the management  of the bank will appoint as far as possible  the remaining  selected candidates in the aforesaid list as soon as  possible.   This  being  the   terms  of  agreement  the conclusion is inescapable that such agreement did not confer a right on the respondents to be appointed ^ to the posts of Field  Supervisors/Probationary Officers and the court would not be justified to make it enforceable by issuing a writ of mandamus.   The  High  Court, therefore, in  our  considered opinion  committed  serious  error  of Jaw  in  issuing  the impugned  directions  calling upon the appellant to  appoint the     respondents    to     the      posts    of     Field Supervisor/Probationary Officer.

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     In the premises aforesaid, the impugned judgment dated 22.12.1992  of the High Court is set aside and these appeals are  allowed,  the writ petitions by the  respondents  stand dismissed, however, there will be no order as to costs.