Deepak Kumar v. Branch Manager, Bank of India, Piska More Branch, Ranchi

:Ms. M.M. Pal, Advocate Mr. Hemant Kumar Chakraborty, Advocate :Mr. Abdul Allam, Sr. Advocate Mr. Faisal Allam, Advocate 13/19.02.2024 Heard learned counsel for the parties. PRAYER Petitioner has approached this Court with a prayer for a direction upon the respondents to regularize his services in terms of Memorandum dated 12.07.2018 and to pass final order. Further prayer has been made for consideration of case of the petitioner for regularization in view of Notification dated 12.07.2018. FACTUAL MATRIX According to petitioner, he was appointed as a daily rated worker on 28.03.2011 and was posted as a Safai Karamchari in Bank of India, Piska More Branch, Ranchi and since then he is in continuous service and is getting regular wages. It is case of the petitioner that from the date of his initial appointment till date, his work has been found satisfactory and there was no complaint from any corner. It is specific case of the petitioner that vide memorandum dated 12.07.2018, the G.M./Head Office, Human Resources Department, Industrial Relations Division,

3. RC 2 informed the Zonal Manager, All Zones, H.B. Department, to fill up vacancies of full time Safai Karamchari – cum – Sepoy on terms as per Memorandum of Settlement dated 25.06.2013 between Management of the Bank and representatives of Federation of Indian Staff Unions before the Regional Labour Commissioner (Centre) in this regard. In terms of said Memorandum, applications were also invited from casual/ temporary workers who were working at various Branches of the Bank in terms of one time relaxation approved by the Bank’s Board on

01.03.2013 for the post of Safai Karamchari – cum – sepoy. Similarly, it was open for the other candidates also. Petitioner having requisite qualification, applied for consideration of his candidature for the post of Safai Karamchari – cum – Sepoy on 05.09.2018, through proper channel and submitted all the certificates which was duly forwarded to the Zonal Office by the registered post on 04.10.2019. Thereafter, petitioner waited for his call letter but when the same was not issued, Legal Notice dated

17.01.2018 was sent to the Zonal Manager for providing an opportunity before the Interview Board. Specific stand was taken in the Notice that he was engaged as a daily wager and performing the work of Safai Karamchari in Piska More Branch with effect from 28.03.2011 and without any break and completed 240 days of continuous service and fulfills all the criteria. The respondents fixed the date of interview from

21.01.2019 and 22.01.2019 for selection to the post of Safai Karamchari – cum – sepoy but no interview letter was ever served to him. Meanwhile, respondents proceeded with the recruitment process and call letters wer also dispatched to provisionally eligible. Since petitioner was fulfilling all the requisite criteria but has not been issued call letter and as such he has been constrained to knock door of this Court. SUBMISSION ON BEHALF OF PETITIONER

4. Ms. M.M. Pal, learned Sr. Counsel assisted by Mr. Hemant Kumar Chakrabarty, learned counsel appearing for the petitioner vehemently argues that since petitioner fulfills requisite qualification for appointment, he ought to have been considered for the same and interview letter as well as call letter would have been issued to him. Learned Sr. Counsel further argues that petitioner was continuing in RC 3 service since 28.04.2011 without any break and has completed 240 days which was the requirement as per terms of notice issued by the General Manager. Petitioner was entitled for getting an opportunity of selection to the post in question in terms of settlement dated 01.03.2013 and

25.06.2013. Learned Sr. Counsel further argues that petitioner has been discriminated by not sending the interview letter and in providing opportunity to be considered for appointment. Learned counsel further argues that the petitioner’s case ought to have been considered for regularization of his service. Learned Sr. Counsel further argues that during pendency of the instant writ petition, petitioner worked from March, 2011 to 21.01.2023 but has illegally been debarred from working further without any notice or show-cause and also without complying the mandatory provisions under Section 25-F of the Industrial Disputes Act. Non-consideration of case of the petitioner on the flimsy grounds is illegal, arbitrary and not tenable in the eyes of law. Learned Sr. Counsel places heavy reliance on the Judgment of Hon’ble Apex Court rendered in the case of Divisional Manager, New India Assurance Company Limited. Vs. A. Sankaralingam reported in (2008) 10 SCC 698. SUBMISSION ON BEHALF OF RESPONDENTS Per contra, counter-affidavit has been filed on behalf of respondents. Mr. Abdul Allam, learned Sr. Counsel appearing on behalf of the Bank vehemently opposes contention of learned counsel for the petitioner and further raises preliminary objection and submits that claiming regularization on the basis of Section 25-F of the Industrial Disputes Act on the ground that petitioner has worked for 240 days is not maintainable in the High Court rather alternative remedy lies before the Tribunal. Advertisement i.e. Annexure-1/A, Page-19 to the writ petition, was for regular appointment and not for regularization. A person who is not in the roll, cannot claim regularization. Petitioner working as a daily wager, casual worker, cannot claim regularization. Petitioner was an occasional worker engaged for a particular period, cannot claim to have been working regularly and parity with others were who selected for

7. RC 4 appointment. It has further been argued that Page-32, Annexure-5 to the writ petition, is not list of regularized employees rather it is the list of selected candidates and petitioner has misconstrued the same. Not a chit of paper has been brought on record to show that petitioner was ever appointed by the Management or was working regularly. The settlement was not for regularization rather it was a one-time measure for regular appointment. No case of discrimination has been made out. There is no merits in this writ petition and as such the same is fit to be dismissed. FINDINGS OF THE COURT

8. Having heard rival submission of the parties across the bar, this Court is of the considered view that no interference is warranted in the instant writ petition. Admittedly claim of the petitioner for regularization is not tenable in the eyes of law since he was never in the roll of the management. Petitioner cannot claim regularization and also any parity with the selected candidates. The Courts have held time and again that there is no duty vested in the respondent – management to give employment to the candidates who are already selected. It all depends on the facts and circumstances of the case. In the instant case petitioner was never selected neither any interview letter was issued. Petitioner has no vested right to claim regularization and appointment.

9. The Hon’ble Apex Court in the case of Shankarsan Dash Vs. Union of India reported in (1991) 3 SCC 47 has held in para-7 to 9 as under: “7. 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. 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 or 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. This correct position has been consistently followed by this RC 5 Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] , or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] . In State Haryana v. Subash

8. Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had “somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies”. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] , was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] , was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and the Commission had not appoint more candidates as recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill RC 6 to a up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant. 9. Mr Goswami appearing in support of the appeal has contended that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up all the vacancies until none remained vacant. Reference was made to Rule 4 of the Indian Police Service (Cadre) Rules, 1954, Rules 3, 4, 6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and Regulations 2(1)(a), 2(1)(c), 8 and 13 of the Indian Police Service (Appointment by Competitive Examination) Regulations, 1965. We do not think any of these rules comes to the aid of the appellant. Rule 3 of the Cadre Rules directs constitution of separate cadres for States or group of States, and Rule 4 empowers the Central Government to determine the strength in consultation with the State Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment Rules deals with the constitution of the Service, and Rule 4 the method of recruitment. Rules 6 and 7 give further details in this regard. The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position with respect to the Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes candidates would be considered for appointment to the available vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by mere inclusion of his name in the list. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules.”

10. In the instant case, petitioner’s name does not find place in the selection list, he cannot claim appointment only on the ground that he was looking as daily wager. One has to go through the selection process and depending upon his performance, the management may or may not consider their candidature. The petitioner is claiming appointment and RC 7 in alternative regularization, the same are not tenable in the eyes of law. The issue also fell for consideration before the Hon’ble Division Bench in L.P.A. No. 149 of 2017 [Dilip Kumar Sinha Vs. Jharkhand Graming Bank and others], and the Hon’ble Division Bench turned down claim of the appellant and the same view has been reiterated. The Judgment relied upon by the petitioner is of no help to him and the same is not applicable in the facts and circumstances of the instant case. No case is made out for regularization. As a sequitur to the aforesaid rules, guidelines, judicial pronouncement, no interference is warranted. However, petitioner is at liberty to move before appropriate forum, if so advised, in order to raise the dispute. The writ petition stands dismissed. As a sequel to the aforesaid, pending Interlocutory Application, if any, also stands disposed of.

12. 13. (Dr. S.N. Pathak, J.)