JUDGMENT
Jasraj Chopra, J
1. These four writ petitions raise almost similar questions of facts and law and, therefore, they were heard together and are dealt with simultaneously and are being disposed of by a common order.
2. Briefly stated the facts of the case are: that the respondent Dungarpur Banswara Kshetriya Gramin Bank (hereinafter referred to as ‘the respondent Bank’) published an Advertisement in Rajasthan Patrika dated 16-11-1985 inviting applications for 30 posts of officers and other cadres. It was made clear in the advertisement that the panel will be effective upto March 1987 and the respondent Bank will convey appointment orders from this panel keeping in view its own requirements. It can add or reduce the vacancies. However, in pursuance of this advertisement, number of persons applied. A written test was taken and thereafter, interviews was held and a panel was prepared on 28-2-1987. As the selection process took long time, the life of the panel was extended from March 1987 to 29-2-1988. A panel of 33 persons was prepared because 10% of the number of vacancies were to be included in the panel on reserve list. As the estimated vacancies were 30, a panel for 33 persons was prepared. It is alleged that the petitioners Madanpuri, Dinesh Kumar, Mangalram Verma and Ummed Ujjawal stood in the merit list at serial Nos. 29, 25, 32 and 31 respectively. Copy of the panel prepared by the respondent Bank containing 33 names has been filed in the writ petition filed by petitioner Madanpuri marked as Annexure-R-1. This panel has been prepared on the basis of 100 point Roster sarving certain vacancies for Scheduled Castes and Scheduled Tribes. The circular providing 100 point roster applicable to such selection has been filed in the writ petition filed by petitioner Madanpuri marked as Annexure-R-2 and the actual points to be resevered in a 100 point roster for SC/ST in Rajasthan are contained at item No. 16 of the Annexure appended to this Circular Annexure-R-2. It is alleged that out of 33 persons, whose names are mentioned in Panel Annexure-R.1, 24 persons have been offered appointments and thereafter, no offer has been made to any other selected person from this panel. By resclution dated 19-2-1988 (Annexure-R-3, filed in the writ petition of petitioner Madanpuri) of the Board of Directors of the respondent Bank, the life of the panel was further extended for a period of six months from 1-3-1988. Thereafter, the life of the panel was not extended and instead, the Advertisement (Annexura-13 filed in the writ petition of petitioner Madanpuri) was issued for filling 18 posts of Officers in the respondent Bank. The advertisement Annexure-13 was issued for the expected and anticipated vacancies which may occur during the year 1989. When the petitioner were not given appointments, they made representations before the expiry of the Panel Annexure-Rule 1 and even thereafter and when they came to know that fresh advertisement Annexure-13 has been issued, they have filed these writ petitions.
3. Precisely, the grievance of the petitioners is that in spite of the inclusion of their names in the select- list, they have not been given appointments by the respondent Bank, although vacancies existed. It was further contended that no fresh advertisement could have been issued by the respondent Bank to make fresh selection till the panel Annexure-Rule 1 was exhausted. It has also been contended that the respondent Bank has offered appointments to 24 persons out of 33 persons mentioned in the Panel Annexure-Rule 1 but it has denied appointments to the petitioners, though vacancies existed, which is violative of Articles 14 and 16 of the Constitution. It was also submitted that a promise has been held out to the petitioners that if they are selected and included in the Panel, they will be given appointments and it was on the basis of this hope, which was raised by the respondent Bank that they prepared for the written examinations for two years, appeared and clear. The written examinations, and faced the interview and thereafter, they became successful and, therefore, now the respondents are estopped on the basis of the principle of Promisory estoppel to rufuse to grant appointments to them. An argument about estoppel by acquisance has also been raised.
4. It was submitted that the life of the panel could have been extended by the Board of Directors of the respondent Bank but the Chairman of the respondent Bank felt that for extending the life of the panel, sanction of the Govt. of India essential and, therefore, no appointments were accorded to the remaining persons from the Panel Annexure-Rule 1. It was further submitted that earlier, the Board of Directors of the respondent Bank extended the term of the panel for six months without obtaining sanction from the Govt. of India and that extention was acted upon and, therefore, the Board of Directors of the respondent Bank was fully competent to extend the life of the panel for another six months or till the new panel was prepared or became operative. It was also submitted that a hostile discrimination has been meted out to the petitioners as against those who were given appointment in the extended term of the panel for six months.
5. According to the petitioners, the National Bank for Agriculture and Rural Development (NABARD), is the sponsoring Bank and it helds 51% shares in the respondent Bank. It has already directed the respondent Bank to accord appointments to the remaining 9 persons but that recommendation has been disregarded. It was also submitted that the Reserve Bank of India has also sanctioned opening of New Branches of the respondent Bank but new Branches were not opened in time by the respondent Bank and, therefore, the petitioners cannot suffer for the in- action of the respondent Bank. Number of contentions have been raised in all these writ petitions as regards the existence of the vacancies. Certain affidavits, counter affidavits and additional affidavits have been filed to show as to how many vacancies existed in the respondent Bank and as to how the petitioners are entitled for appointments. However, it was prayed that a writ, order or direction be issued to the respondents not to proceed to appoint any Officer from the fresh panel till the persons of the earlier panel Annexure-Rule 1 are given appointments.
6. A return has been filed on behalf of the respondent in all these writ petitions. It was admitted that the respondent Bank has issued the advertisement dated 16-11-1985 in the Rajasthan Patrika for 30 vacancies of the Officers and it was beacuse of this that the panel (Annexure-Rule 1) 33 persons was prepared keeping 10% names for the reserve-list. It was also admitted that exminations and interviews were held and, thereafter, as per 100 point roster, the panel Annexure-Rule 1 was prepared. According to the respondents, 100 point roster was applicable where as it has been claimed by petitioner Shri Madanpuri that 40 point roster was applicable in such cases. It was also submitted that preparation of the panel is an exercise whereby those persons who are eligible and suitable for appointments are included in the panel and the inclusion of the names of the persons in the panal confers on them no right to appointment. It all depends upon the requirements of the respondent Bank whether to grant appointments to the persons included in the panel or not. According to the respondents, upto the extended life of the panel, only 13 vacancies exited and initially 20 persons were offered appointments but only 11 persons joined and thereafter, 4 more persons were offered appointment but only 2 persons joined. Thus, in all those 13 vacancies which existed were filled in by giving apointments to the persons included in the panal Annexure-Rule 1. Initially, the life of the panel Annexure-Rule 1 was kept only upto 29-2-1988 but later, it was extended for six months by resolution of the Board of Directors of the respondent Bank and, thereafter, no extention was granted and no appointments were accorded, it was submitted that no hostile discrimnation has been meted out to the petitioners nor they have been need out any unequal treatment. Nobody who is lower in rank than the petitioners has been appointed. Moreover, nobody has been appointed after the expiry of the period of panel. Till the expiry, of the panel, only 13 vacancies were there and the respondent Bank has issued appointment orders to the persons for the vacancies which did exist during the validity of the panel.
7. It was contended that the Govt. of India vide its letter Annexure-Rule 5 dated 19-9-1983 has issued directions to the Chairman of all Regional Rural Banks that normally, the life of the panel should be one year and, thereafter, if the life of the panel is to be extended then it can only be done with the prior permission of the Board of Directors and under intimation to the Govt. in the Banking Division. It was submitted that the NABARD has no power to issue any direction to the respondent Bank to appoint the remaining persons from the panel Annexure-Rule 1. Moreover, appointments to the petitioners out of turn from amongst the persons whose mans appear in the panel are not possible and, thereafore, the petitioners are not entitled to any relief. It was further submitted that a new panal has already been put into action and out of panel of 18 persons 14 persons have already been given appointments and the remaining four vacancies could not be filled on acount of the stay orders granted by this Court and, therefore, the petitioners have no right to get themselves appointed through these writ petitions.
8. A rejoinder has been filed on behalf of the petitioner Madanpuri, Dinesh Kumar and Ummed Ujjawal but no rejoinder has been filed on behalf of the petitioner Manglaram. Certain affidavits and counter affidavits have been filed as regards the vacancies. We shall consider them at the proper place.
9. We have heard Mr. M. Mridul, Mr. D.S. Shishodia, and Mr. M.S. Singhvi, the learned Counsel appearing for the petitioners and Mr. P.K. Bhansali, the learned Counsel for the respondents and have carefully gone through the record of the case.
10. It was contended by the learned Counsel appearing for the petitioners that by issusing advertisement dated 16-11-1985, cartain applications for the post of Officers were invited. The written examinations took place in the year 1987 and on account of holding out of this promise, the petitioners made preparations to appear in this written exmaination for two years. They did appear in this written exmination with full preparations, cleared that examination and faced the interviews and, thereafter, they were selected. According to them, by the Advertisement dated 16-11-1985, 30 posts of Officers were advertised and, therefore, they were sure that appointments will be accorded to them. On account of this hope, they changed their situation in the sense that they did not try for any other jobs and, therefore, the respondens are estopped by promissory estoppel and estoppel by acquisance to refuse any apointment to them. In support of this submission, reliance has been placed on Asstt. Commr., Commercial Taxes (Asst.) Dharwar and Ors. v. Dharmendra Trading Co. etc. ; Vij Resins Pvt. Ltd. v. State of J. & K. ; and Delhi Cloth & General Mills Ltd. v. Union of India . All these cases relate to the principle of promissory estoppel, where in it has been held that if somebody changes the situation on the basis of a representation made by the Govt., i.e. if alters his position may not be to his detrimental then the person holding out of the promise is estopped from backing out of that promise.
11. As regards the estoppel by acquisance, reliance has been placed on a decision of the Patna High Court in Subhash Misra v. State of Bihar 1989 LAB. I.C. 822, wherein it has been observed as follows:
It is the duty of the Public Service Commission to scrutinise the form filled up by the candidate to find out whether it is in order and all requirements are complied with before issuance of the Admission Card. Where after perusal of the application form and other relevant documents including Matriculation Certificate showing date of birth of the candidate, the Commission has issued an admission card and allowed the candidate to appear for written examination and viva voce. They are estopped from cancelling his candidature on the ground that he was over aged. Inaction on part of the commission will act as an estoppel by encouragement or acquiescence.
Now, this has to be seen whether in such matters, the principles of promissory estoppel and estoppel by acquiescence can at all hold the field. The crucial question to be determined is as to whether the inclusion of the names of the persons in the Panel (select-list) confers on them any right to appointment and if such persons conferred with a right to get an appointment, of course the principles of primissory estoppel and esfoppel by acquiescence can cartainly be claimed but if that does not give any right of appointment to them on the basis of the inclusion of their names in the Panel than neither the principle of promissory estoppel nor the principle of estoppel by acquiescence can help the cases of the petitioner.
12. Mr. P.K. Bhansali, the learned Counsel appearing for the respondents has contended that by advertising the posts and inviting persons to apply for the posts and to udnergo a written test and interview, only an invitation has been extended to the applicants for judging their suitability and eligibility for the job. According to him, if a person clears the written test and interview and his name is included in the Panel then he only becomes eligible for appointment, on the basis of the merit he holds in the panel. It confers on him no right to appointment. In support of his submission, he has placed reliance on a decision of their lordships of the Supreme Court in Jatinder Kumar v. State of Punjab : In that case, a contention was raised that once a man has undergone the written test and interview held by the P.S.C. and his name is included in the list of the select persons then the Govt. is bound to accept that recommendation under Article 320(3) of the Constitution. It was further contended that the inclusion of the names of the persons in the select-list prepared by the P.S.C. confers right of appointment on them. Although, this contention was repelled by the lordships of the Supreme Court but it was observed that the provisions of Article 320 of the Constitution are only directory in nature, and a person cannot claim as of right that the Govt. must accept the recommendation of the Commission. It is further observed:
that if, however, the vacancy is to be filled up, the Govt. had to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz., bad conduct or character. The Govt. also cannot appoint a person whose name does not appear in the list. But it is open to the Govt. to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus.
It was also observed that the selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Govt. The Govt. may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the Commission, the Constitution enjoins the Govt. to place on the table of the Legislative Assembly its reasons and report for doing so. Thus, the Govt. is made answerable to the House for any departure vide Article 323 of the Constitution. This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Govt. must accept the recommendation of the Commission.
13. Thus, it has been held by their lordships of the Supreme Court that inclusion of the name of a person in the select-list confers no right of appointment on him. It only decides the eligibility and suitability of that person for appointment and does not clothe him with a right of appointment.
14. In Jatinder Kumar’s case (supra), an argument of desperation was also advanced about promissory estoppel stopping the State Govt. from acting in the manner it old in not appointing the appellants through their names had been recommended. Their lordships of the Supreme Court have observed that the notification issued by the Board in the case was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts. It did not hold out any promise that the selection would be made or if it was made, the selected candidates would be appointed. The candidates did not acquire any right merely by applying for selection or for appointment after selection. It can, therefore safely be said that in such matters, where advertisement is issued for certain anticipate vacancies and it is made clear in the advertisement itself that number of posts can be increased or decreased by the appointing authority. If somebody after clearing the written examinations and interviews, finds his name in the panel of selected candidates, he can at best say that his suitability has been adjudged but it confers on him no right of appointment and in such matters, the principle of promissory estoppel cannot be applied against the State. Thus, the contention of the learned Counsel for the parties that in such matters, the principles of promissory estoppel or estoppel by acquiasncence arise is devoid of any force.
15. Mr. P.K. Bhansali, the learned Counsel appearing for the respondents has further placed reliance on a decision of their lordships of the Supreme Court in State of Maharashtra v. Association of Maharashtra Education Service Class II Officers , wherein it has been observed that is open to grave doubt whether the recommendations of a body like the University Grants Commission can give rise to rights and obligations enforceable in a court of law. On the strength of the aforesaid observations of their lordships of the Superme Court, it was argued by Mr. Bhansali that if the selection Board selects a person and includes his name in the panel and forwards his name to the Bank concerned for appointment, the Bank is obliged to appoint him only on the basis of the vacancy that may exist. It confers no right on the person concerned that he must be appointed. According to Mr. Bhansali, in this case, the patitioners have only been selected and their names have been included in the panel of selected candidates and that confers on them no right to be appointed. Their lordships of the Supreme Court in A.A. Ahuja v. Union of India 1987 (3)SCC-604 have observed that an officiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been promoted on an officiating basis. Thus, when an officiating appointment confers no status on an employee and he is clothed with no right to hold a post, how can a person who is selected for inclusion in the Panel can gat a right to appointment.
16. Reliance was also placed on a decision of their lordships of the Supreme Court in State of Haryana v. Subash Chander AIR 1973 SC 2215, wherein it has been observed as follows:
that the competitive examination is for the purpose of showing that a particular candidate is eligible for consideration. Selection for appointment comes later. It is open then to the Govt. to decide how many appointments shall be made. The mere fact that the candidate’s name appear in the list does not entitle him to be appointed.
The only restraint put on the power of the Govt. to make appointments of Subordinate Judges under Rule 10 is that the State Govt. shall not travel outside the list and that the Govt. shall not depart from ranking given in the list.
Thus, by appointing first seven persons out of 15 in the list as Subordinate Judges the Govt. does not infringe any requirements of the Rules and no legitimate grievance can be made by remaining persons in the list that there still are vacancies. The unfilled posts do not warrant issue of mandamus to an authority.
Thus, it has been conclusively held by their lordships of the Supreme Court that mere inclusion of the name in the panel confers no right of appointment and even the existence of vacancies also confers no right of appointment. The unfilled posts do not warrant issue of mandamus to an authority. In para 8 of the judgment in State of Haryana’s case (supra), it has been observed their lordships that one fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is or the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It was further observed as follows:
It is open then to the Govt. 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 Govt. 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 Govt. had departed from the rules in this respect.
It was also observed that inclusion of the name of a person in the panel shows that the eligible candidate holds minimum qualifications and he maybe considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lowar in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared will another. This is the ground on the basis of which, appointments are to be made in order of merit, which has been assigned to the candidates included in the Panel by the Selection Board. That a course cannot be departed but the person lower in rank cannot claim that they have been discriminated because the persons higher in rank to them have been appointed but they have not been appointed. This is what has been held by their lordships of the Supreme Court in State of Haryana’s case (supra).
17. Mr. Bhansali has further placed reliance on a decision of their lordships of the Supreme Court in Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, Bihar Sharif , wherein it was held:
that in order that mandamus may issue to compel the governing body of a College to do something it must be shown that the Statutes framed by the University under Section 20 of the University of Bihar Act impose a legal duty and the petitioner has a legal right under the Statutes to enforce its performance. According to the statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or damoted except in accordance with Rules but where the petitioner has not shown that he has any right entitling him to get an order for appointment or reinstatement, he cannot come to Court and ask for a writ to issue against the Governing body.
Mr. Bhansali has, therefore, argued that the petitioners have claimed a writ of mandamus to get themselves appointed and such a writ of mandamus cannot be issued because no right is conferred on them merely by inclusion of their names in the panel to get themselves appointment, and therefore, these writ petitions should be dismissed.
18. To controvert this argument, Mr. Mridul, Mr. Singhvi and Mr. Shishodia have contended that the scope of Article 226 of the Constitution is not confined to the issuance of five types of merits. The High Court can issue orders and directions as well, if it is found that the authority or the Tribunal is acting without or in excess of the jurisdiction. The object of Article 215 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any Govt. within the jurisdiction of the High Court, orders a writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive ramedy would be defeated. In support of this submission, reliance has been placed on a decision of their lordships of the Supreme Court in B.M. Patel v. N.K. Barot .
19. Mr. Singhvi has next palced reliance on a decision of this Court in Madangopal Jabra v. Union of India , wherein it has been held:
that under Article 226 of the Constitution of India power is conferred upon the High Court to issue not only writs in the nature of various categoiries specified in that article but those writs themselves as also directions and orders and they may be issued not only for the enforcement of fundamental rights but for any other purpose.
It was, therefore, contended by the learned Counsel appearing for the parties that may be that the High Court may not issue a writ of mandamus but still, it can issue orders or direction to mitigate the injustice meted out to the petitioners. According to them, when the posts have been advertised, written examinations and interviews have been held and a panel has been prepared then till that panel was not expusted no fresh advertisement should have been issued. That will be against the principles of fair play and will result in discrimination against the selected candidates.
20. It was further contended that as per Section 8 read with Section 17 of the Regional Rural Banks Act, 1976 (for short ‘the Act’), the Board of Directors have full power of general superintendence, direction and management on the affairs and business of the Regional Rural Bank and it has full power to make appointments of such number or Officers and other employess in the Bank as it may consider necessary. The Govt. of India has no business to issue any such directions and, therefore, the Circular that has been issued by the Govt. of India to all the Chairman of the Regional Rural Banks in only directory in nature and its compliance is not mandatory. There is no rational basis for making a fresh selection when the first of selected candidates is still in forces and the persons who have been selected after clearing written and interview are still to be appointed and absorbed in service. The Circular Annexura-Rule 5 dated 19-9-1983 which has been issued by the Govt. of India to Chairman of all Regional Rural Banks has invited their attention to the letter dated September 30,1980 issued by the Govt. of India whereby the Regional Rural Banks had been advised not to prepare panels for appoints to various grades, disproportionately long a compared to the number of posts that are immediately available and are likely to be available during 12 months succeeding the relevant recruitment and in addition, they can include another about 10 percent of their requirements to the panel to provide for contingencies such as selected candidates declining to accept the offers etc. The Regional Rural Banks were advised that the panels should normally, kept alive only for a period of one year. They were also advised that deviation from these guidelines, necessary in the interest of the banks, should be undertaken with the prior permission of Board of Directors and under intimation to Govt. in the Banking Division. It was further montioned that inspite of this advice, it has been observed that some Regional Rural Banks have drawn up unduly large panels in the years subsequent to the issue of the aforemention letter. It was further asserted that the advice contained in this office Circular of September 30, 1980 is based on sound considerations of enabling the Regional Rural Banks to get the best of the available candidates on their staff every year, of affording fresh seekers of employment a change to complete for job opportunities and ensuring that by following well established practices of a recruitment, the Regional Rural Banks’ management and to a void criticism of favouritism and nepotism in recruitment of candidates. The guidelines are explicit and the deviation contemplated therin are only meant to enable RRBs to tide over unforeseen difficulties such as a short delay in the completion of the recruitment process in the subsequrent year etc. and, therefore, they were asked to review their positions and to comply with the Circular of September 30, 1980 read with the aforesaid Circular of September 19, 1983. It was contended that as per Section 8. of the Act, the general superintendence, direction and management of the affairs and business of a Regional Rural Bank shall vest in a Board of Directors who may exercise all powers and discharge all the functions which may be exercised or discharge by the Regional Rural Bank. Thus, the Board of Directors have full control, over the general superintendence and management of the affairs and business of the Bank: Section 17 of the Act relates to the Staff of Regional Rural Banks and it provides that a Regional Rural Bank may appoint such number of Officers and other employees as it may consider necessary or desirable for the efficient perforance of its functions and may determine the terms and conditions of their appointment and service. It was, therefore, contended that it was within the powers of the Board of Directors to take a decision whether to keep the panel alvie till the list was exhausted. The Govt. of India does not come into picture. The NABARD has already directed the respondent Bank to give appointments to the remaining 9 persons from the panel Annexura-Rule 1. This fact has been asserted in the writ petition and it has not been denied on behalf of the respondent in reply to the writ petition but it has been contended that NABARD has no such authority to give such a direction. It was argued that no provision of law has been shown which may show that the NABARD has power to give any such directions as regards management and staffing pattern of the Regional Rural Banks.
21. However, It was contended by Mr. P.K. Bhansali, the learned Counsel appearing for the respondents that Section 24 of the Act confers certain powers on the Central Govt. to give such directions and it is obligatory on the part of the Regional Rural Banks to obey such directions because the entire funding is one either by the Govt. of India or by its Nationalised Banks i.e. NABARD or the Sponsoring Bank (Bank of Baroda). Section 24 of the Act provides that a Regional Rural Bank shall in the discharge of its functions, be guided by such directions in regard to matters of policy involving public interest as the Central Govt. may, after consultation with the Reserve Bank give. It further provides that if any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the Central Govt. thereon shall be final. Mr. Bhansali, the learned Counsel appearing for the respondents has contended that preparation of panel of recruitment is a policy matter, about which, direction has been issued by the Govt. of India vide Circulars Annexure-Rule 4 and Annexure-Rule 5. dated 30-9-1980 and 19-9-1983 respectively and therefore, the respondent Bank was obliged to follow these directions and hence, it cannot be said at the Govt. of India does not come into picture. It very much comes into picuture as per Section 24 of the Act and as the funding on the Regional Rural Banks flows from the Govt. of India and its Nationalised Banks, the respondent Bank has no option but to follow the directions issued by the Govt. of India We are inclined to agree with Mr. Bhansali that the respondent Bank is obliged to obey to directions issued by the Govt. of India as regards policy matters. How recruitments should be and what should be the life of panel are the policy matters. The rationale of these directions issued by the Govt. of India vide the Circulars Annexures R-4 and 5 (filed in Dinesh Kumar’s petition) are sound in view of the decision of their lordships of the Supreme Court in Nagar Mahapalika Kanpur v. Vinod Kumar Srivastava 1 (1987) ALLT 342, wherein it was held that the earlier instructions issued by the Govt. imposed two conditions: (1) that a waiting list would be effective only for period of one year and (2) that the list should not contain more than 25% surplus candidates against existing and anticipated vacancias. In that case the list of selected candidates was 59 as against the 23 vacancies. It was held that it was onnecessarily long. Only a list of anticipated vacancies with 25% surplus could have been prepared and that was not done. This of course, has no application to the present case where the anticipated vacancies have been calculated as 30 and as per the Govt. Circular Annexure-12, 10% extra persons were included in the panel to meet the contingencies and therefore, the panel of 33 persons was prepared. The second question, which was raised before their lordships of the Supreme Court was that the waiting list of the candidates would be effective for a period of one year from the date of preparation. This argument was upheld by their lordships of the Supreme Court. It has been observed by their lordships of the Supreme Court that the reasons underlying the limitation of the period of a list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the posts in the succeeding years and being selected for appointment. Thus, making a panel effective for a particular period of time is based on sound reasoning and it cannot be said that till the persons included in the list are appointed, no further advertisement can be issued and no further selection should take place. This argument advanced by the learned Counsel for the petitioners cannot be sustaind, inview of Circulars Annexures Rule 4 and Rule 5 as also on the basis of the decision of their lordships of the Supreme Court in Nagar Mahapalika’s case.
22. Confronted with this legal position, the learned Counsel for the petitioners have submitted that it may be true that the persons included in the panel may not have any legal right to be appointed by issuance of a writ of mandamus but the selection of the candidates and the inclusion of their names in the panel is not an empty for duty. The appointing authority cannot refuse the recommendations of the Selection Board on arbitrary grounds. They cannot refuse appointments by practising discrimination and inequality between the sets of persons i.e. those who are appointed and those who are still to be appointed, if the vacancies existed. In support of this submission, my attention was draw to Krishi Upaj Mandi Samiti, Jodhpur v. State of Rajasthan and Ors. (1982 RLR 262), wherein, it was observed:
that although it cannot be disputed that the selected candidates, meraly because their names were included by the selection committee in the list of selected candidates, were not conferred with any right of appointment to the post for which they are selected, yet it is well settled that the appointing authority could not refuse to accept the recommendations of the selection committee merely on arbitrary grounds. The appointing authority could not refuse to accept the recommendations of the selection committee simply on the ground that the persons recommended were not acceptable to the appointing authority or that a person rejected should have been recommended. If the recommendation of the selection Committee is arbitrarily refused by the appointing authority then the aggrieved person can certainly submit that his legal right has been in-frigged. If the recommendations of the selection committee are refused on valid grounds, which are not contrary to the provisions of law under which the selections have been made, then it may not be possible for the court to interfere with the refusal of the appointing authority to appoint a selected candidate.
Attention was also deawn to a decision of this Court in Smt. Kamla Pareek v. Rajasthan Agricultural Marketing Board, Jaipur 1982 (2) SLR 792, wherein a learned single Judge of this Court has held that the petitioner has been selected and recruited by the competent authority and his name has been conveyed for being appointed to the concerned markeing Committee by the competent authority. On those facts, it was held that after selection, the appointments must be given to the petitioners otherwise recruitment would be refused to superfluous formality. It was further held that although the High Court cannot issue appointment order but it can direct the authorities to perfrom their legal obligations. That was a case where not only the persons were selected but their names were allotted to the particular marketing committees with a direction to make appointments and, therefore Kamla Pareek’s case has no direct application to the facts of this case. The mere inclusion of the names of the persons in the Panel prepared by the Selection Board as per the aforesaid decision of their lordships of the Supreme Court in State of Haryana’s case (supra) and a Division Bench decision of this Court in, Krishi Upaj Mandi Samiti, Jodhpur case (supra) confers no right on the persons to get themselves appointed. However, it has to be held that these recommendations of the Selection Board cannot be refused on arbitrary grounds.
23. It is true that a fresh advertisement has been issued for 18 posts of the Officers vide Annexure-13 filed by the petitioner Madanpuri. It is alleged that these vacancies pertained to the year 1989. The selection in this respect was made and a panal was prepared on 18-5-1989 vide Annexure-Rule 6 filed by the petitioner Dinesh Kumar. Thus, this panel became effective from 19-5-1989. The earlier panel (Annexure Rule 1) was published on 28-2-87 and its life was kept for one year i.e. up to 29-2-88. The life of this panel was further extended for the period of six months vide resolution of the Board of Directors on the respondent Bank. The Circular Annexures Rule 4 and R-5 dated 30-9-1980 and 19-9-1983 respectively clearly show that the Regional Rural Banks have been advised by the Govt. of India that the panel should be kept alive only for a period of one year and if any deviation is necessary in the interest of the Banks then it should be undertaken with the prior permission of the Board of Directors of the concerned Banks and under intimation to the Govt. of India. Thus, for the purposes of extending the period of the panel, powers have been conferred on the Board of Directors and the Govt. of India in Banking Division has col to be intimated as regards deviation and, therefore, it is wrong on the part of the respondents to contend that further life of the penel could not have been extended boyond the period of six-months-without obtaining the concurrence of the Govt. of India. It is further true that the repondent Bank wrote to the NABARD for extention of the period of the panel and the NABARD has directed them to grant appointment to the remaining nine persons. It is further true that the respondent have taken the position that further perion of panel could not be extended because no concurrence was received about it from the Govt. of India, which means that permission of Govt. of India in the Banking Division was sought to extended the permission of the Panel (Annexure Rule 1). It was, therefore, contended by the learned Counsel appearing for the petitioners that the respondant Bank was very much willing up its own accord to extend the term of the Panel (Annexure Rule 1). No law has been shown that the NABARD has no power to issue such directions inspite of the fact that all policy matters of the Regional Rural Banks are governed by the Board of Directors of the NABARD.
24. Be that as it may, the Chairman of the respondent Bank took the view that the life of the Panel (Annexure-Rule 1) cannot be extended without obtaining concurrence of the Govt. of India but that proposition does not hold any water because the life of the Panel (Annexure-Rule 1) has already been extended by the Board of Directors of the respondent Bank for a period of six months and, thereafter also, under s.24 of the Act the Board of Directors could extend the term of the Panel (Annexure-Rule 1) with intimation to the Govt. of India in the Banking Division. Under the term of the Panel (Annexure-Rule 1) has been extended to accomodate certain persons for a period of six months, it could as well have been extended to cover the period before which new panel came into force. In this case, the advertisement (Annexure-13) was issued for the vacancies relating to the year 1989 and the Panel prepared in pursuance of that advertisement became effective from 18-5-1989 and, therefore, the list of the Panel could have been extended upto 17-5-1989 or at least upto 31-12-1988 but that has not been done in this case and that has resulted in discrimination. Once the relaxation has been made for a particular period of time in which certain persons have been accomodated who could not be appointed upto 28-2-1988 there on the same premises, the life of the Panel should have been extended. There cannot be any discrimination in granting relaxation. In this respect, our attention was drawn to a decision of their lordships of the Supreme Court in Principal, K.G. Medical College v. V.K. Agarwal 1984 (1) SCC 415, therein their lordships have observed that the rigour of a rule can be relaxed provided such relaxation is permissible under the rules or if the rule is directory and not mandatory. And even if it is permissible to relax a rule, such relaxation must be governed by defined guidelines or objective consideration. No public authority least of all a University Union is entrusted with the future of the student community can pick and choose persons for receiving the benefit of relaxation of the Rules.
25. It is true that the life of the Panel should normally be for a period of one years as directed by Govt. of India but even as per their own instructions, it can be extended in suitable cases. Thus, it is a rule which is directory in nature. The powers of relaxation are there and they have been exercised by the Board of Directors of the respondent Bank for a period of six months and, thereafter, the term of the panel was not extended till the new panel came into force. Thus, the relaxation so granted by the Board of Directors has resulted in discrimination against the persons who have been selected in a particular manner and have not been accommodated and therefore, such a refusal of relaxation amounts to discrimination.
26. Our attention was also invited to a decision of their lordships of the Supreme Court in Abdul Sattar v. State of M.P. , when in large number of persons who have complete only two years of service were promoted to the post of chargeman Gr. II and, thereafter, similarly situated persons were refused promotion on the ground that they have not complete three years of service. On those facts, it was held that other persons similarly situated should be similarly promoted after completing same period of service an the Govt. cannot insist that they cannot be considered for promotion unless they complete three years of service. It was further held that there is no justification for such differential treatment. It has been claimed by the learned Counsel appearing for the petitioners that when the life of the panel could be extended to accommodate some persons till August 1988, it could as we , have been extended upto the coming into force of the next panel i.e. upto 17-5-1989. If the advertisement Annexure-13 was issued to cover the vacancies for the year 1989 then the life of the panel Annexure Rule 1 could have been extended at least upto 31-12-1988 because no claim has been made that any panel was in force for filling up the vacancies which occurred between 1-9-1988 to 31-12-1988. No affidavit has been filed that no vacancy occurred during this period. The only gound which has been taken by the respondents for non-eixtension of the term of the Panel anexure-Rule 1 is that the Govt. of India did not concur. From the aforesaid discussion, it is clear that the respondent Bank was willing to extend the term of the Panel (Annexure-Rule 1) and it was because of this that it approached the NABARD and the Govt. of India in the Banking Division. It is absolutely clear that the Board of Directors of the respondent Bank have power to extend the term of the panel and, therefore, the argument that the term of the panel (Annexure-Rule 1) could not have been extended because the Govt. of India did not concur cannot be sustained.
27. In Mohinder Singh v. Chief Election Commissioner AIR 1970 SC 851, it has been observed by their lordships of the Supreme Court that when a statutory functionary makes an order based on certain grounds, its vaildity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The persons mentioned for the non-extension of the Panel (Annexure-Rule 1) in this case, under these cirumstances cannot be sustained and to this extend, the objection, raised to the learned Counsel for the respondent deserves to be sustained. The Board of Directors of the respondent Bank could have extended the life of the Panel Annexure-R-1 at least upto 31-12-1983.
28. It was next claimed that it is the admitted position taken by the respondents not only in their reply but also at the time of argumens that the respondent Bank has filled up all the vacancies which existed upto the life of the Panel i.e. 31-8-1988 and this is what has been contained in Para 10-D.(3) of the reply filed by the respondent Bank which reads as under:
that the respondent Bank has issued appointment orders to the persons for the vacancies which did exist during the validity of the panel.
Mr. Bhansali has candidly conceded at the time of his argument that the respondent Bank has made appointments on all the vacancies which existed or occurred during the life of the Panel by asking persons in the Panel to join the services on the basis of their placement in the Panel Annexure-Rule 1. This position is seriously contusted by the petitioners and in this regar, certain affidavits, counter affidavits and additional affidavits have been filed. However, it was claimed by the learned Counsel for the petitoners that relief can be granted to the petitioners even on the basis of this admission made by the respondents that they were ready to filled up and have filled up all the vacancies which existed upto 31-8-88.
29. In this respect, initially, the respondent Bank took the position in their reply to para 3(1) that only 13 vacancies existed till the expiry of the panel and that position was reiterated by mea in Para (1) also. Now, they have change this position and in the affidavit that has been filed by the Chairman of the respondent Bank on 11-12-1990, it has been claimed that upto the life of the Panel 14 vacancres existed. This dmission is challenged by the petitioners on the basis of Annexure-Rule 3 filed in Madanpuri is case. These are proceedings of which, 20 persons were offered appointments and out of the meeting of the Board of Directors held on 19-2-1988. At that time, the vacancy position was examined. It transpires from these proceeding that a panel of 33 persons was prepared and out of them only 11 persons reported for duty. As regards to strength of Officers, it has been recorded that three Officers are there on deputation from the Sponsoring Bank and 38 Officers of their own Bank were working. Thus, the total strength of Officer is 41. While passing this resolution, the Board of Directors of the respondent Bank not only extended the term of Panel for six months with effect from 1-3-88 but they further authorised its Chairman to issue appointment letters for four posts of Officers, two posts of Field Supervisors and four posts of Junior Clerks keeping in view the branch expansion programme. Thus, it is clear from the aforesaid proceedings of the meeting of the Board of Directors of the respondent Bank held on 19-2-1988 that by that time, only 11 Officers have reported on duty and the respondent Bank wanted to fill up four more posts of Officers and, therefore, it has been claimed on behalf of the petitioners that the total number of vacancies for appointments on the post of Officers upto 31-8-1988 should be calculated as 15 rather than 14 and this submission of the learned Counsel for the petitioners appears to be true in the light of the aforesaid resolution of the Board of Directors of the respondent Bank.
30. Now, it is alleged in para 5 of the affidavit of Shri Rohit Jagdhish Kumar Desai, the Chairman of the respondent Bank dated 11-10-1990 that the sponsoring Bank who has deputed three Officers to work in the respondent Bank has withdrawn its Officers viz. Shri S. Verma, Shri C.S. Mehta and Shri S.N. Sharma and has transferred back on deputation one Officer by the name of Shri R.K. Bandi and, therefore, two vacancies occurred on account of the withdrawal of Officers by the sponsoring Bank, and these two vancancies were not under consideration before the Board of Directors held their meeting on 19-2-1988. Even the Chairman of the respondent Bank has admitted in his afficavit that at that time, three offiers were working on deputation from the sponsoring Bank and the services of these three Officers were withdrawn by the sponsoring Bank and in their place, one R.K. Bandi was appointed and to fill up the remaining two vacancies caused on account of the transfer of the Officers of the Sponsoring Bank, Shri Rajendra Kumar Surana and Shri Banwarilal Mande were given appointments. These two vacancies have no concurn. Whatsoever with the vacancy position which has considred by the Board of Directors of the respondent Bank on 19-2-1988. Thus, the number of vacancies which were to be relied up by the respondent Bank during the pendency of the Panel Annexure-Rule 1 came to be 17 instead of 14 as is being claimed now. 11 Officers have already been given appointments upto 19-2-88. Keeping in view the Branch expansion programme and taking into consideration all other requirements of the respondent Bank, four Officers to be appointed under the orders of the Board of Directors by its Chairman and two vacancies occurred on account of the withdrawal of the Officers by the sponsoring Bank.
31. There is a dispute whether Shri R.K. Surana was appointed against the vacancy which was cause by withdrawal of three Officers by the Sponsoring Bank or whether he appointed against the vacancy caused by Shri Ranglal Bheel as has been claimed in Annexure-21, the Post Creation chart filed by the respondent Bank but that will hardly matter when we take into consideration overall vacancy Position upto the expiry of the Panel i.e. 31-8- 88. If Shri R.K. Surana’s appontment is taken to be against the vacancy of Shri Rangalal Bheel as has been claimed in Annexure-21 then his appointment will be adjusted against these 15 vacancies and if it is taken to be an appointment against the two vacancies which have been caused on accout of withdrawal of the officers by the Sponsoring Bank then he will be adjusted against that vacancy. However considered from whatever angle, he can only be adjusted against one vacancy out of the 17 vacancies, which were to be filled up upto 31-8-88. It is thus, clear that in all 17 appontments were to be made: 15 as per the directions of the Board of Directors of the respondent Bank and two on account of the withdrawal of Officers of the Sponsoring Bank. Now, we look at Annexure-21, which has been filed in Madanpuri’s case (supra). It is clear from Annexure-1 that only 13 persons have joined sofar against the vacancies including Shri R.K. Surana. The fourteenth man Shri S.L. Moondra had resigned in May 1988 before the expiry of the Panel Annexure Rule 1 on 31-8-1988 and, therefore, till the expiry of the Panel Annexure-Rule 1, from amongst these persons mentioned in Annexure R-1, only 13 persons have joined the service including ‘Shri R.K. Surana and Shri B.L. Manda, who have been adjusted against the vacancies caused on acount of the withdrawal of these Officers by the Sponsoring Bank and, therefore, four more Officers can safely be appointed the respondnet Bank keeping in view this vacancy position. It is true that the respondent Bank has claimed that no vacancy existed and the petitioners have claimed that still more than six vacancies existed out we will not like to travel in that controversy any more in the light of the admitted facts and the documents on record, which clearly show that even as per admission of the respondent Bank four vacancies did exist in the respondent Bank upto 31-8-1988. In doing so, I am not taking into consideration the vacancies union must have occurred between 1-9-1988 to 31-12-1988 and therefore, the petitioners can safely be appointed against these four vacancies.
32. It was contended on behalf of the respondent Bank that the petitioners cannot be appointed out of turn and no pick and choogse policy can be permitted. Learned Counsel appearing for the petitioners has drawn my attention to a decision of their lordships of Supreme Court in Neelima Shangla v. State of Haryana 1986 (4) SCC 261, wherein out of select list, several successful candidates were not appointed but only one of them filing the writ petition challenged the selection. The petitioner was found entitled to be appointed against the post kept vacant pursuant to court’s interim order. It was held that other successful candidates though similarly situated but in view of their failure to question the selection and lapse of two years, they cannot be held entitled to a general order for appointing all of them thereby upsetting subseqent selections and creating confusion. Consequently, the petitioner who knocked the doors of the Court alone was held to be entitled to the grant of relief. Thus, it is not a question of pick and choose. In this case a panel of 33 persons was prepared and out of that panel, only 9 persons were not granted appointments and only four persons have knocked the doors of the Court. The term of the Panel Annexure R-1 has already expired and a new Panel has come into force and appointments have been accorded from that Panel and, therefore, the entire process cannot be upset because that will result in confusion and, therefore, in the facts and circumstances of this case, it appears just and proper that these four petitioners also be given appointments because they have knocked the doors of the Court for relief.
33. An additional ground was raised on behalf of petitioner Shri Mangal Ram Verma. It was claimed that even if it is held that there were 14 vacancies then as per 100 point roster system, to fill up these 14 vacancies roster point No 1, 7 and 13 will go to Scheduled Caste and roster point No. 4 and 11 will go to Scheduled Tribes. Only two candidates belonging to Scheduled Caste mentioned at Serial No. 1 and 21 in Annexure-21 have joined. Shri Y.R. Naval, whose name stands at serial No 19 did not join and that vacancy was given to Shri M.L. Kansotiya, whose name stands at Serial No. 21. Shri Y.R. Naval was adjusted against the vacancy of Shri H.L. Khatik, who did not join. Thus, against 14 vacancies, only two persons Shri S.L. Selvi and Shri M.L. Kansotiya, who belong to Scheduled Caste were appointed and they have been adjusted against roster point No. 13. If the respondent Bank has choosen to appoint any person of general categary as against the vacancy of Scheduled Caste then it should thank itself. That vacancy cannot be transferred to general quota till selected candidates belonging to Schedule Caste were available in the Panel Annexure-Rule 1. Such a transfer of vacancy of Scheduled Caste to the general quota is not permissible as per the decision of their lordships of the Supreme Court in Prem Prakash v. Union of India , wherein it was observed that it maybe assumed that the administration is not bound to fill all the vacancies which are advertised and indeed if the number of candidates are qualify in the competitive examination is less than the number of vacancies which are advertised, it is obvious that the vacancies which can be filled will Be less than the vacancies which are advertised. But the availability of vacancies for the reserved categeries cannot be made to depend upon the accidental circumstances of how many candidates have qualified for general seats. Thus, the persons who are entitled to be appointed against the reserved quota have to be given appointment. It is unfortunate that the vacancy which was caused by refusal of Shri Ranglal Bheel has been filled up by a candidate from the general category whereas it should have been offered to Shri Laxmilal Meena. As Shri Laxmilal Meena has not come to the Court, I have no option but to observe that petitioner Mangal Ram Verma deserves appointment in his own rint even if the vacancy position was only 14 as claimed by the respondents because 13th point in the roster will go to Scheduled Caste.
34. In the result, these writ petitions are allowed and the respondents are directed to accord appointments to the petitioners on the posts of Officers forthwith effective from the date of their filing of these writ petitions. They will, cuavar, not be paid salary during the period they have not worked but that period will be counted for their seniority and pension purposes. Four vacancies have already been kept reserved for them and they must be given appointments within a period of one month from today. If the petitioners donot join the services of the respondent Bank with in the appointed period after issue of appointment orders the respondent Bank will be free to appoint anybody else from the panel which has now come in to force from 18-5-1989.
35. In the peculiar facts and circumstances of the case, the parties are left to bear their own costs.