W.P. (S) No. 7053 of 2005
With
W.P. (S) No. 294 of 2006
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In the matter of an application under Article 226 of the Constitution of India
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Amit Naresh Beck & anr. ... ... ... Petitioners [W.P.(S) No. 7053/05]
Tenughat Power Engineers Service Association ... Petitioner [W.P. (S) No. 294/06]
VERSUS
Tenughat Vidyut Nigam Ltd. & ors. ... ... Respondents (in both cases)
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For the Petitioners : M/s M. Sohail Anwar, Sr. Advocate
(in W.P.(S) No.7053/05) & Afaque Ahmad, Advocate
For the petitioner : M/s Indrajit Sinha & Rohit Roy, Advocates
(in W.P.(S) No. 294/06)
For the T.V.N.L. : Mr. Anoop Kr. Mehta, Advocate
(in both the writ petitions)
PRESENT
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE D.N.PATEL
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By Court: Heard learned counsel for the parties.
2. These two cases involve same question of law and fact and, therefore, they
are being disposed of together.
3. In one case, there is a panel of candidates, who appeared for selection
pursuant to the advertisement issued by the respondent-Tenughat Vidyut Nigam
Limited (in short “T.V.N.L.”) for recruitment. Such candidates, who appeared in
the selection were empanelled but not appointed. The grievance of the petitioners
is that they were validly selected pursuant to a valid advertisement and had
legitimate expectation to get appointed pursuant to the advertisement issued. The
panel was prepared in the year, 2005 and till date they have not been appointed,
though according to law, the panel expires within one year but the Courts have
power to extend the currency of the panel, if the writ petition is filed prior to
exhaustion of the panel and the writ petition was admittedly filed before the end
of one year and, therefore, the right of the petitioners to get appointed cannot be
said to have been extinguished.
4. In any case, the argument of the learned counsel is that if the petitioners
being only recommended for being appointed, no indefeasible right to get
appointed then the action of the respondents can be seen to be arbitrary and
legally malafide, because there was no power of absorption with the T.V.N.L. of
the employees of another institution. Now after filing of the writ petition, the
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appointments have been ordered to be cancelled and that aspect has also been
brought on record that such action is not bonafide as the cancellation has been
ordered after filing of the writ application.
5. In another writ petition, the petitioner has challenged the absorption of the
employees on the ground that there is no power of absorption with the T.V.N.L.
and, therefore, that absorption has resulted in denying the opportunity of
appointment of candidates.
6. Learned counsel for the respondents submitted that as far as the fresh
candidates are concerned, they are only selectees and a selected candidate has no
indefeasible right to get appointed. The selection was made in the year, 2005 and
now we are in the year, 2011 and the very advertisement for that appointment has
been cancelled. Therefore, the right cannot be said to be subsisting and more
particularly in the background that at the time when the decision was taken, there
was only one unit i.e. Bihar State Electricity Board and now after bifurcation, the
Bihar State Electricity Board got bifurcated into two units i.e. Bihar State
Electricity Board and Jharkhand State Electricity Board and the cadre division
took place in the year, 2005. While the cadre division was undertaken, the
absorbed employees were already working with the T.V.N.L. on deputation and
therefore, at that time a decision of the Board of Directors of T.V.N.L. to absorb
all those persons, who were working on deputation, was taken, because they were
better suited to get it operated and, therefore, after the decision of the Board of
Directors of T.V.N.L., the option was invited from those persons, who were on
deputation, for being absorbed. Thus, the absorption was with the approval of
highest body of the Company’s Executive i.e. the Board of Directors. Any
decision taken by the Board of Directors partakes the character of law, which
empowered them to absorb the employees.
7. We have heard learned counsel for the parties and have given our
thoughtful consideration. In our considered opinion, the selected candidates, if not
appointed for the exigency of the service and the situation, obtaining that Bihar
State Electricity Board came to be bifurcated and certain employees were already
working with the T.V.N.L. on deputation. Their option being invited under the
orders of the Board of Directors, it cannot be said that that action of the
respondents was in any way designed to defeat the rights of the petitioners, which
was the subject matter of direct selection and that can not be seen to be a
malafide action, because such employees were already working and they have
been absorbed by the orders of the Board of Directors. It cannot thus be said that
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there was no law or authority available with the T.V.N.L. to absorb such
employees. In that view of the matter, the absorption is not seen in any way illegal
as far as the selectee is concerned.
8. Mere figuring the names in the select list does not confer any indefeasible
right and the appointments, if any made in the background that there were already
existing workmen available with the T.V.N.L. on deputation, they were ordered to
be absorbed, it cannot be said that there were enough vacancies to offer
appointment to those selected candidates and in that view of the matter no relief
can be granted to the petitioners, more particularly when from 2005 six years have
elapsed. So, the time has also played against the petitioners. The writ petitions are
accordingly, dismissed.
(Bhagwati Prasad, C.J.)
( D.N. Patel, J. )
Jharkhand High Court, Ranchi
Dated 9th March, 2011
A.K.Verma/ Ajay N.A.F.R