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CASE NO.: Appeal (civil)  4261 of 2006

PETITIONER: State of Bihar & Ors

RESPONDENT: Amrendra Kumar Mishra

DATE OF JUDGMENT: 26/09/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T  

[Arising out of S.L.P. (Civil) No. 26370 of 2005]

S.B. SINHA,  J :

       Leave granted.

       The Bihar State Subordinate Service Selection Board issued an  advertisement for appointment of 225 posts of Live Stock Assistants in the  Animal Husbandry Department.  Respondent herein pursuant to or in  furtherance of the said advertisement applied therefor.  He was declared  successful.  On or about 21.12.1992, Respondent herein along with other  successful candidates had been recommended by the Board.  Appointment  letters were issued to 195 successful candidates, out of the 200 candidates  recommended by the Commisson.  By a Memo. No. 323 dated 21.02.1992,   an appointment letter was sent to  Respondent asking him to join the  post  within fifteen days.  He failed to join. Allegedly, on 20.07.1994, he  requested Director, Department of Animal Husbandry, to issue an  appointment letter to him,  stating  :

       "I came to know that the Department had  appointed maximum candidates till date and the  appointment proceeding is going on for the remaining  advertised 225 posts.  My Serial Number is more above  in the recommended merit list and junior persons to me  have been appointed but I have not received any  appointment letter till date for my joining.  During the  period of enquiry, I have come to know that the  appointment letter of the selected candidates have been  forwarded, whereas I have not received appointment  letter till now.

       In the above facts and circumstances, I, therefore,  request you to kindly pass the appropriate order  immediately for giving me appointment letter."

       No reply thereto was allegedly given.  He did not take any steps in  regard thereto and only on 22.06.1995, he again requested the Director of  Animal Husbandry to issue him an appointment letter in order to enable him  to join the said post, stating :

       "With respect, it is to say with regard to earlier  application dispatched by me in the aforesaid subject  matter that in the light of the subject matter,  advertisement by the Bihar Public Service Commission, I

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had recommended for appointment.

       It comes to know that the department had  appointed maximum candidates but till date, I have not  received my appointment letter.  I have been reminding  to the Department for a very long period but I have not  received any appointment letter by the department till  date."

       A notice on similar terms was issued by him in the year 2000. As his  prayer was not  acceded to,  he filed a writ petition in the High Court of  Judicature at Patna, which was marked as CWJC No.801 of 2001.  The State  in its Counter Affidavit categorically raised a contention that the panel  remained valid only for one year.  It was contended that the purported  representations made by him in the years, 1994, 1995 and 2000 were not  available in the Department, stating :  

       "That it is further started that in the month of  December, 1999, the petitioner had submitted another  representation in this Department, the case of the  petitioner was referred to the Law Department,  Government of Bihar, for opinion and the opinion of the  learned Advocate General, Bihar was also sought and  tendered.  In the light of the opinion given by the Law  Department/learned Advocate General, the representation  of the petitioner was rejected vide Annexure-5 of the writ  application."

       The said writ petition was taken up for hearing in 2004.  The High  Court allowed the same, stating :  

       "While hearing the matter on 29.6.2004 I had  verbally asked learned G.P. 6 to find out as to whether  any post of Pashudhan Sahayak is vacant pursuant to  which a supplementary counter affidavit has been filed.   In paragraph 56 of the affidavit it is stated that some  posts of Pashudhan Sahayak are vacant in the office.   Since the petitioner was already selected for this post and  he could not report his joining due to some unavoidable  circumstances, in my opinion, his case should be  considered for the post of Pashudhan Sahayak which is  still vacant.

       In the given facts and circumstances of the case,  therefore, the authorities concerned are directed to accept  the joining of the petitioner on the post of Pashudhan  Sahayak pursuant to his selection vide order as contained  in Annexure 2 within a period of four weeks from the  date of receipt/production of a copy of this order."     

       A Letters Patent Appeal preferred by Appellants was summarily  dismissed by an order dated 03.03.2005.  

A notice was issued by this Court on 16.12.2005.  Despite pendency  of the Special Leave Petition,  Respondent was permitted to join his services  in July 2006 subject to the decision of this Court in this matter.   

The post was advertised in the year 1987.  The selection process was  completed in the year 1992.  It may or may not be that Respondent herein  had actually received his appointment letter.  It was, however, expected that  he would make enquiries thereabout;  particularly when on his own showing   those who were below him in the selection list had already been permitted to

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join. Admittedly, he came to know thereabout in 1994.  He allegedly filed a  representation and although no reply thereto was given, he did not take any  step soon thereafter. He filed another representation only in 1995.   He filed  the writ petition after a long period i.e.  in 2001 when his purported  representation filed in the year 1999 was rejected.   

In the aforementioned situation, in our opinion, he did not have any  legal right to be appointed.  Life of a panel, it is well known, remains valid  for a year.  Once it  lapses, unless an appropriate order is issued by the State,  no appointment can be made out of the said panel.   

In Madan Lal and Others v. State of Jammu & Kashmir and Others  [(1995) 3 SCC 486], this Court held :

"\005It is easy to visualise that if requisition is for 11  vacancies and that results in the initiation of recruitment  process by way of advertisement, whether the  advertisement mentions filling up of 11 vacancies or not,  the prospective candidates can easily find out from the  Office of the Commission that the requisition for the  proposed recruitment is for filling up 11 vacancies. In  such a case a given candidate may not like to compete for  diverse reasons but if requisition is for larger number of  vacancies for which recruitment is initiated, he may like  to compete. Consequently the actual appointments to the  posts have to be confined to the posts for recruitment to  which requisition is sent by the Government. In such an  eventuality, candidates in excess of 11 who are lower in  the merit list of candidates can only be treated as wait- listed candidates in order of merit to fill only the 11  vacancies for which recruitment has been made, in the  event of any higher candidate not being available to fill  the 11 vacancies, for any reason. Once the 11 vacancies  are filled by candidates taken in order of merit from the  select list that list will get exhausted, having served its  purpose."

       In State of U.P. and Others. v. Harish Chandra and Others [(1996) 9  SCC 309], this Court stated the law in the following terms :

"Coming to the merits of the matter, in view of the  Statutory Rules contained in Rule 26 of the Recruitment  Rules the conclusion is irresistible that a select list  prepared under the Recruitment Rules has its life only for  one year from the date of the preparation of the list and it  expires thereafter\005"

Yet again in Surinder Singh and Others v. State of Punjab and  Another [(1997) 8 SCC 488], this Court stated the law thus : "Prem Singh case was decided on the facts of that  case and those facts do not hold good in the present case.  In the case of Gujarat State Dy. Executive Engineers’  Assn. this Court has explained the scope and intent of a  waiting list and how it is to operate in service  jurisprudence. It cannot be used as a perennial source of  recruitment filling up the vacancies not advertised. The  Court also did not approve the view of the High Court  that since vacancies had not been worked out properly,  therefore, the candidates from the waiting list were liable  to be appointed. Candidates in the waiting list have no  vested right to be appointed except to the limited extent  that when a candidate selected against the existing  vacancy does not join for some reason and the waiting  list is still operative.

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The decisions noticed hereinbefore are authorities for the proposition  that even the waitlist must be acted upon having regard to the terms of the  advertisement and in any event cannot remain operative beyond the  prescribed period.  

It may be true that the appointment letter was sent by ordinary post;  but even in relation thereto a statutory presumption arises.  It is also well  known that postal delay by itself may not be a ground to take a sympathetic  view  In Maruti Udyod Ltd.  v. Ram Lal and Others  [(2005) 2 SCC 638], it  was observed  :

"While construing a statute, "sympathy" has no role  to play. This Court cannot interpret the provisions of the  said Act ignoring the binding decisions of the  Constitution Bench of this Court only by way of  sympathy to the workmen concerned.

In A. Umarani v. Registrar, Coop. Societies  this  Court rejected a similar contention upon noticing the  following judgments: (SCC pp.   131-32, paras 68-70)

"68. In a case of this nature this Court should not  even exercise its jurisdiction under Article 142 of the  Constitution of India on misplaced sympathy.

69. In Teri Oat Estates (P) Ltd. v. U.T.,  Chandigarh18 it is stated: (SCC p.      144, paras 36-37)

’36. We have no doubt in our mind that  sympathy or sentiment by itself cannot be a ground  for passing an order in relation whereto the  appellants miserably fail to establish a legal right.  It is further trite that despite an extraordinary  constitutional jurisdiction contained in Article 142  of the Constitution of India, this Court ordinarily  would not pass an order which would be in  contravention of a statutory provision.

37. As early as in 1911, Farewell, L.J. in  Latham v. Richard Johnson & Nephew Ltd.  observed: (All ER p. 123 E)

"We must be very careful not to allow our  sympathy with the infant plaintiff to affect our  judgment. Sentiment is a dangerous will o’ the  wisp to take as a guide in the search for legal  principles."  

70. Yet again, recently in Ramakrishna Kamat v. State  of Karnataka this Court rejected a similar plea for  regularisation of services stating: (SCC pp.    377-78, para  7) ’We repeatedly asked the learned counsel for the  appellants on what basis or foundation in law the  appellants made their claim for regularisation and  under what rules their recruitment was made so as to  govern their service conditions. They were not in a  position to answer except saying that the appellants  have been working for quite some time in various  schools started pursuant to resolutions passed by  Zila Parishads in view of the government orders and  that their cases need to be considered  sympathetically. It is clear from the order of the  learned Single Judge and looking to the very

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directions given, a very sympathetic view was taken.  We do not find it either just or proper to show any  further sympathy in the given facts and  circumstances of the case. While being sympathetic  to the persons who come before the court the courts  cannot at the same time be unsympathetic to the  large number of eligible persons waiting for a long  time in a long queue seeking employment.’ "

In the facts and circumstances of this case, in our opinion, the High  Court should not have allowed Respondent herein to join his services only  on the basis of sympathy.

It is now also well settled that in absence of any legal right, the Court  should not issue a writ of or in the nature of mandamus on the basis of  sympathy.

We, therefore, are of the opinion that the High Court committed a  manifest error in allowing the writ petition of Respondent.  It is set aside  accordingly.   The appeal is allowed.  However, no recovery shall be made  for the period he has actually worked.  No costs.