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PETITIONER: SYNDICATE BANK AND ORS.

       Vs.

RESPONDENT: SHANKAR PAUL AND ORS.

DATE OF JUDGMENT:       01/08/1997

BENCH: S. C. AGRAWAL, G. T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      Leave granted.      Heard learned counsel for both the sides.      The Deputy  General Manager  in charge of Calcutta Zone of the  appellant bank  wrote to the Sub-Regional Employment Exchange, North  Calcutta, sometime in July, 1986, to send a list of  candidates for  selection and  empanelment for  the post of  attenders for some of its branches in Calcutta. The empanelled candidates  were to be appointed in the temporary vacancies which  were likely  to arise on account of absence of casual  leave taken  by the  regular attenders.  The nine respondents, whose  names were  sponsored by  the employment exchange,  were  selected  and  included  in  the  panel  of eligible candidates.  By its  letter dated  6/7.2.1987,  the Bank informed the respondents that their names were included in the panel and they could be considered for appointment as and when  temporary vacancies arose. They were also informed that the  validity of  the panel was one year from 7.2.1987. During that  year, the  respondent   were given appointments from time  to time  as ‘Badli’ attenders. Towards the end of 1987, when  they came  to know that a fresh panel was likely to be prepared by the Bank, they represented to the Bank not to cancel  the  said  panel  and  thereafter  filed  a  writ petition in  the Calcutta  High  Court  seeking  a  writ  of mandamus directing  the Bank  to absorb them as attenders on permanent basis.  It was dismissed by a learned single Judge of that  Court as  he was  of the  view that the panel being valid upto  6.2.1988 only  the writ petitioners had no right to claim  appointment on  its basis  after that date and the petition had thus become infructuous.      The respondents  challenged that order by filing appeal No. 973  of 1988.  The Division  Bench of the High Court did not find  any merit  in  the  appeal  and  dismissed  it  on 30.3.1933, with  a direction  to the  Bank to consider their cases for  empanelment and  consequent appointment, if there were vacancies  and they  were found eligible and within age limit.      On 19.4.1993, the respondents moved the High Court with a request to modify its order with respect to the age limit,

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in view  of  the  circular  dated  2.2.1991  issued  by  the Calcutta Zonal  Office, whereby  applications  were  invited from those  attenders, who had worked on temporary basis for 90 days  or more  on or after 1.1.1982, for future vacancies (temporary/permanent), if  they were  not more than 26 years of age as on the date of the first temporary appointment. In view of  this circular  the High  Court thought it proper to recall its  previous order  and rehear  the appeal.  It  was disposed of on 21.12.1993 by passing the following order:-           "Accordingly  considering  the      facts  and   circumstances  of  the      case, we  dispose of  the appeal by      directing  the   bank  that   while      making the  fresh panel the case of      the appellants should be taken into      consideration first. They should be      placed in the panel and while doing      that, the  question of age bar will      not disqualify them, and that their      case   may    be    sympathetically      considered  for  employment  and/or      appointment. We  also make it clear      that this  order passed  by us will      not affect the terms and conditions      of any  existing employees or their      future  chance   of  promotion,  if      there was  any ratio  reserved  for      promotional quota  for any  of  the      existing staffs.  While making  the      panel suitable  priority should  be      given    for     empanelment    and      consequential appointment  into the      post taking  into consideration  of      their past  services over  the  new      hands. Steps  should  be  taken  to      make empanelment  as  soon  as  the      vacancy arises."      It  was  contended  by  Mr.  Deepankar  Gupta,  learned counsel for  the Bank  that as the High Court had thought it fit to  recall its order and re-hear the appeal on the basis of the  circular dated  2.2.1991, it  was neither proper nor just to dispose of the appeal by giving directions which are inconsistent with  the said circular. He also submitted that as the  life of  the  panel,  on  the  basis  of  which  the respondents  had   claimed  the   right   to   be   absorbed permanently, had  come to an end on 6.2.1988, the High Court ought to  have dismissed  the appeal.  We find  considerable substance in both these contentions.      Till 1982,  the  branches  of  the  appellant  Bank  in Calcutta region  were recruiting  persons locally to work as temporary attenders  in leave  vacancies.  In  view  of  the revised procedure  prescribed by  the Government of India in respect  of   such  temporary   appointments,  the  Calcutta regional office  of the  appellant Bank issued a circular to all of  its  branches  on  14.8.1982,  instructing  all  the branches under  it to  discontinue  the  old  practice  from 1.6.1982  and   appoint  only   empanelled  candidates.  The regional  office   was  to   prepare  a  panel  of  eligible candidates, after  calling  names  from  the  local/district employment exchange,  and split it up branch-wise. Following that new  procedure yearly  panels were prepared thereafter. Names of the respondents were for the first time included in the panel  prepared for  the period 7.2.1987 to 6.2.1988. By its  letter   dated  7.2.1987  the  Bank  had  informed  the respondents that  the panel  was valid for one year only and

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that inclusion of their names in the panel was not to confer on them  any right  to seek  permanent  appointment  in  the service of  the bank.  Considering the object with which the panel was  prepared and the fact that it was an yearly panel expiring on  6.2.1988,  we  are  of  the  opinion  that  the respondents did  not get  any right, because of inclusion of their names  in the  said panel, for permanent absorption in the service of the Bank. Whatever conditional right they had came to  an end  with the  expiry of the panel. The claim of the respondents,  as contained in the writ petition was thus misconceived and  therefore the learned single Judge and the Division Bench, when it first decided the appeal, were right in dismissing the writ petition and the appeal respectively.      We will  now  refer  to  circular  dated  2.2.1991  and consider whether  the High Court was justified in giving the impugned direction  on its  basis. In  September, 1988,  the Government   of    India   formed   a   committee   of   the representatives of  banks to  consider and  suggest solution for the  problem of  industrial  disputes  being  raised  by temporary employees  in  the  banking  industry  for  seeing permanent absorption  in the  banks under  the provisions of Chapter 5A  of the  Industrial Disputes  Act. The  committee suggested a  particular approach to be adopted to solve that problem. That  Approach Paper  was circulated  to the public sector banks  by the  Government of  India  along  with  its letter dated  16.8.1990. The  ‘Approach Paper’  inter  alia, suggested that:-           "Banks will  provide one  time      opportunity to  all  the  temporary      employees by  taking 1.1.82  as cut      off date  i.e. all  those who  were      engaged as  temporary employees  by      the bank  on or after 1.1.82 may be      considered  for   re-employment  in      terms  of  Scheme  being  discussed      hereunder and herein above."      xxx         xxxx        xxxx           "Only     those      temporary      employees who  had put  in  minimum      temporary service  of  90  or  more      days after  the cut off date, i.e.,      1.1.82 will  only be  eligible  for      considering under the scheme."      xxxx        xxxx        xxxx           "All  banks   with   immediate      effect    will    stop    temporary      employment both in clerical as well      as in subordinate cadre."      Therefore, in  compliance with  the said direction, the Calcutta Zonal  Office of the appellant Bank issued a notice on 2.2.1991,  which is described by the parties and the High Court as circular dated 2.2.1991, declaring its intention to prepare a  panel/list of  eligible persons for absorption in future vacancies and inviting applications for that purpose. The relevant part of the notice reads:-      "The Bank  propose  to  draw  up  a      panel/list  of   persons  who  have      worked on temporary basis at any of      its   branches/offices    in   West      Bengal, Bihar,  Orissa,  Assam  and      Meghalaya as  clerk/typist/steno or      peon/attender, for  90 days or more      on or  after 1.1.1982,  for  future      vacancies (Temporary/permanent)  if      they are found suitable and subject

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    to the following conditions:-      (1)   Those    seeking   post    of      attender/peon  should  have  passed      VII  standard   of   Karnataka   or      equivalent, be  not  less  than  18      years and not more than 26 years as      on  the   date  of   1st  temporary      appointment.      (2) .......      (3) .......      (4) .......           Those who  satisfy  the  above      conditions   should    send   their      applications  to  the  Dy.  General      Manager,  Syndicate   Bank,   Zonal      Office  (Personnel   Section),  27,      Shakespeare Sarani, Calcutta 700017      in the  following format  within 15      days            of             this      advertisement.........."      Condition number  one  regarding  age  bar  being  more favourable than the direction given by the High Court by its order dated  30.3.1993, the  respondent applied  to the High Court to  modify its  order by  deleting the  age bar  limit mentioned therein.  That  application  was  opposed  by  the appellant on  the ground that in view of the policy decision to consider  all those  who had  worked as  attenders for 90 days or  more on  or after 1.1.1982, the entire order should be vacated because as a result of the direction given by the Court the  respondents would  get a more favorable treatment than the other empanelled candidates. In view of these rival submissions the  High Court thought it fit to reconsider its earlier order.  It,  therefore,  recalled  its  order  dated 30.3.1993 and fixed the appeal for re-hearing. Thereafter it disposed of  the appeal  by passing  the order which we have quoted above.      The directions  given by the High Court to consider the respondents  first   and  that   too   sympathetically   for employment/appointment and give them priority while doing so are clearly  inconsistent with  the policy/scheme  contained the Approach  Paper. The  scheme contemplates preparation of two panels  - one  consisting of  category  (i)  candidates, i.e., those  who have  worked for more than 240 days and the other of  those falling  in category  (ii), i.e.,  those who have worked  for 90  days and  above but less than 240 days. Category (i)  candidates are  to be  absorbed first. Persons included in  the panel of category (ii) candidates are to be absorbed  thereafter.  This  aspect  appears  to  have  been overlooked by  the High  Court. It has failed to notice that the directions given by it would adversely affect the rights of those  persons who  had worked  for more than 240 days as attenders and  are thus  entitled to be absorbed first. Even if the  order passed  by the  High  Court  is  construed  as referring to  the panel  of category  (ii)  candidates,  the directions have  to be  regarded as  inconsistent  with  the provision  made   in  the  scheme  as  regards  fixation  of seniority.  Under   the  scheme  those  candidates  who  had enrolled themselves earlier with the employment exchange are entitled to be considered senior to those enrolled later.      Realising this  infirmity in  the order  passed by  the High Court  Mr. Sankar Ghosh, learned senior counsel for the respondents, submitted  that the direction given by the High Court will  not have  that effect  as even  according to the scheme those  whose names  were sponsored  by the employment exchange are  to be  considered first for preparation of the

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two panels.  He also  submitted that  amongst the candidates sponsored by  the employment  exchange seniority  has to  be reckoned with  reference to  the date  of registration  with employment exchange.  In support  of this submission he drew our  attention   to  Government   of  India’s  letter  dated 16.8.1990 which  refers to  the Approach  Paper prepared  in consultation with  the Ministry  of Labour  in the matter of recruitment as  well as  temporary employment and the letter dated 14.12.1992  written by  the  General  Manager  of  the appellant  to   the  Government   of  India   for  according concurrence to the course of action which was proposed to be taken by  the Bank.  He pointedly  drew our attention to the following   proposal   contained   in   the   letter   dated 14.12.1992:-      "d)  In   respect   of   candidates           sponsored    by     Employment           Exchange  seniority   will  be           reckoned with reference to the           date  of   registration   with           Employment    Exchange.     In           respect  of   candidates   not           sponsored    by     Employment           Exchange,  seniority  will  be           reckoned  from   the  date  of           their first appointment in the           bank."      He  thereafter  drew  our  attention  to  letter  dated 9.2.1987 written by the appellant to the employment exchange at Calcutta whereby it informed the employment officer as to whose names  were included  in the  panel. The  said  letter mentions the  employment exchange number against the name of each of  those candidates.  From the  said numbers it can be inferred, as  contended by  Mr. Sankar  Ghosh, that probably most of  the respondents were registered with the employment exchange prior  to 1982.  We cannot accept the submission of Mr. Sankar  Ghosh as no such plea was raised before the High Court and  it  would  also  be  improper  to  draw  such  an inference. We  also find  that  the  appellant  has  already prepared a  fresh panel  of category (ii) candidates. If the grievance of  the  respondents  is  that  it  has  not  been prepared according  to the  scheme it  is open  to  them  to challenge it.  A grievance was also made by Mr. Sankar Ghosh that the  appellant has not operated the panel as it should. If that  is so, it being a fresh cause of action, it is open to  the   respondents  to   challenge  that   action  in  an appropriate forum.      We accordingly  allow this  appeal and  set  aside  the judgment and  order dated  21.12.1993 passed by the Calcutta High Court  in appeal  No. 973  of 1988. The order passed by the learned single Judge on 8.8.1988 is restored. In view of the fact  and circumstances  of the  case there  shall be no order as to costs.