Beruflich Dokumente
Kultur Dokumente
13
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WRIT PETITION NO. 1319 OF 2013
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Shilpa Jain, being an adult of Indore, ]
Indian inhabitant, and having her residence ]
at : 1-B. Sector C, Scheme No.71, ]
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Near Nalanda School, Indore, ]
Madhya Pradesh - 452 001. ] ... Pe titioner
Versus
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1. Central Bank of India, having its ]
registered office at "Chandermukhi" ig ]
Nariman Point, Mumbai - 400 032. ]
Mr. A. Bukhari with Mr. Atul Daga, Mr. Suraj Iyer i/b Ganesh & Co.
for the Petitioner.
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Mr. Lancy D'Souza with Ms. Pragati Deodhar i/b U.M. Parkar for the
Respondent No.1.
CORAM : S.J. VAZIFDAR, &
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SRP 1/20
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respondent No.1 to absorb her in the post of Assistant Manager, Scale
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II.
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2. No reliefs are claimed against respondent No.2 - the Union of
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to the first respondent - Central Bank of India.
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3. The entire controversy centres around the interpretation of a
Writ Petition (Lodg) No. 2825 of 2012 in the case of Sonali Pramod
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including campus recruitment.
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5. In or about February, 2012, the respondent initiated the process
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for campus recruitment, inter-alia, to the said post. By an e-mail
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Studies (IIPS), a university teaching department of the Devi Ahilya
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University, Indore, forwarded to the respondent, a list of students of
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the final year MBA course who had finance specialization for the
over India. The said institution invited the respondent for the campus
recruitment drive and thanked it for the opportunity for its students to
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an e-mail dated 2nd June, 2012, furnished the respondent a list of its
students who were selected and requested the respondent to initiate the
SRP 3/20
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By a further e-mail dated 13th September, 2012, addressed to
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the respondent, the said institute stated that the respondent "had
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campus recruitment process held on 24th February, 2012." It was
further stated that the students were waiting to join the respondent.
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The institute addressed a reminder by its e-mail dated 12th April,
2013.
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6. This brings us to the said Writ Petition (Lodg.) No.2825 of
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of officers in the public sector banks against "permanent
vacancies" on "regular basis" by resorting to campus
recruitment / Interview method and not by inviting
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applications from public at large by issuing public
advertisement, being illegal and unconstitutional. The
respondents are directed to forbear from making any
appointment against the permanent vacancies on
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regular basis by resorting to campus recruitment /
Interview mechanism hereafter and if such appointment
is made, the same will be non-est in law."
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By an order dated 19th August, 2013, the first respondent's
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petition for special leave to appeal was dismissed by the following
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order :-
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stated that the said judgment restrained the first respondent from
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already made. The petitioner requested that orders for her posting be
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issued.
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9. By the impugned communication dated 23rd April, 2013,
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judgment and stated: "As a sequel to the aforesaid orders we hereby
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recall / cancel the selection of the aforesaid candidates made by our
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selection committee."
petitioner submitted that the said judgment and order did not affect the
SRP 6/20
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11. The respondents have issued letters of appointment to 99
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campus recruitment drive. They have not issued letters of
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before they could do so, the Division Bench delivered the said
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judgment dated 1st April, 2013. In our opinion however, there is no
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difference between the 99 candidates who were issued letters of
appointment and the remaining 139 candidates who were not issued
the letters of appointment. All the 238 candidates stand on the same
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footing. It was the respondents' case itself that all 238 candidates
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advertisement and by campus mode done by the
Respondent Bank from time to time on that basis, reads
thus:
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Comparative Chart Showing Recruitment of Officers
Through Advertisement and Campus Mode
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Year Intake of Officers Intake of Officers
Through Through Campus
Advertisement
2009-10 858 20
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2010-11 1155 82
2011-12 17 ig 98
1012-13 1538* 238*
Total 3567 438
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* Result of 1000 Probationary Officers are to be declared
shortly.
** Appointment letter not issued to 139 selected candidates
which comprises 50 Agriculture Finance Officers and 89
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recruitment for the period 2012-2013 and that single star (*) shown in
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the table is incorrect. This is obvious from the context as well. It is
also admitted that the petitioner also falls within 12.27% referred to in
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paragraph 41 of the judgment.
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12. The above paragraphs of the judgment indicate clearly that all
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238 candidates were recruited. In other words, they were not merely
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to be considered for appointment. The respondents had taken a
that of 99 candidates.
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earlier.
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An e-mail dated 2nd June, 2012 addressed to the respondents
stated that the said students / candidates had been "selected". The
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respondents did not refute the same.
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Bank i.e. the respondent "had recruited" the said candidates at the
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campus recruitment held on 24th February, 2013. The respondents did
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not refute the same either.
selection committee."
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of the last sentence in paragraph 58 of the said order and judgment of
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the Division Bench which reads as under :-
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from making any appointment against the permanent
vacancies on regular basis by resorting to campus
recruitment/Interview mechanism hereafter and if such
appointment is made, the same will be non-est in law."
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The petitioner's appointment cannot be said to have been made
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hereafter i.e. after the judgment. The judgment therefore, does not
having been dismissed, does not affect the petitioner's case. The
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respondents challenged the judgment and did not seek to construe it.
The petitioner before us has not challenged the judgment. She has
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The order of the Supreme Court did not construe the judgment. It
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judgment.
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16. Our attention was invited to the Special Leave Petition filed by
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one Kumari Neha Singh and the rejection thereof by the Supreme
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Division Bench of this Court also sought to construe it as is evident
from paragraph XVIII and XIX of the SLP which read as under :-
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"XVIII For that the action of the bank is contrary
to the order of the Hon'ble High Court of Judicature at
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Bombay wherein in paragraph 58 the Hon'ble High
Court has clearly had categorically have stated "the
respondents are directed to forbear from making any
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appointment against the permanent vacancy on regular
basis by resorting to campus recruitment/interview
mechanism hereinafter and if such appointment is made
the same will be non-est in law".
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Court was very clear that after the Judgment has been
pronounced i.e. 01.04.2013 no campus recruitment has
been made but the petitioner's recruitment was made on
28.02.2012 which therefore, does not come under the
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" ORDER
Heard.
Permission to file SLP is granted.
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Delay condoned.
The special leave petition is dismissed."
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The permission to file the SLP was obviously in view of the fact
that the petitioner was not a party to the proceedings in which the
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judgment was delivered by this Court. The Supreme Court, therefore,
granted permission to file the SLP. In other words, the Supreme Court
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did not grant leave in respect of the SLP. ig
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17. The said Kumari Neha Singh, in paragraphs XVIII and XIX,
had contended that the campus recruitment had been made prior to the
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judgment and, therefore, the recruitment did not come under the
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is similar to the one raised before us. We are not concerned here with
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judgment. The only question is whether the dismissal of the SLP filed
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having held that the action of the bank is not contrary to the order of
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of the SLP filed by Kumari Neha Singh we are precluded from
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construing the judgment of the Division Bench.
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18. Mr. Bukhari, the learned counsel appearing on behalf of the
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Kunhayammed & Ors. v. State of Kerala & Ors. 2000 (6) SCC 359.
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The Supreme Court held that while hearing the petition for Special
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Leave to Appeal, the Supreme Court does not exercise its appellate
jurisdiction was not made out. It was further held that when a Special
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legal tenor of an order of the Supreme Court dismissing
a special leave petition. In Workmen v. Board of Trustees
of the Cochin Port Trust [(1978) 3 SCC 119], a three-
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Judge Bench of this Court has held that dismissal of
special leave petition by the Supreme Court by a non-
speaking order of dismissal where no reasons were given
does not constitute res judicata. All that can be said to
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have been decided by the Court is that it was not a fit
case where special leave should be granted. That may be
due to various reasons. During the course of the
judgment, their Lordships have observed that dismissal
of a special leave petition under Article 136 against the
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order of a tribunal did not necessarily bar the
entertainment of a writ petition under Article 226
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against the order of the tribunal. The decision of the
Madras High Court in Western India Match Co. Ltd. v.
Industrial Tribunal [AIR 1958 Mad. 398] was cited
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before their Lordships. The High Court had taken the
view that the right to apply for leave to appeal to the
Supreme Court under Article 136, if it could be called a
right at all, cannot be equated to a right to appeal
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Labour Court. On behalf of the employee the principal
contention raised was that in view of the order of the
Supreme Court dismissing the special leave petition
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preferred against the award of the Labour Court it was
not legally open to the employer to approach the High
Court under Article 226 of the Constitution challenging
the very same award. The plea prevailed with the High
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Court forming an opinion that the doctrine of election
was applicable and the employer having chosen the
remedy of approaching a superior court and having
failed therein he could not thereafter resort to the
alternative remedy of approaching the High Court. This
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decision of the High Court was put in issue before the
Supreme Court. This Court held that the view taken by
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the High Court was not right and that the High Court
should have gone into the merits of the writ petition.
Referring to two earlier decisions of this Court, it was
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further held: (SCC pp. 148-50, paras 6 & 8)
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the writ proceeding before the High Court merely on the
basis of an uncertain assumption that the issues must
have been decided by this Court at least by implication.
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It is not correct or safe to extend the principle of res
judicata or constructive res judicata to such an extent so
as to found it on mere guesswork.
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It is not the policy of this Court to entertain special
leave petitions and grant leave under Article 136 of the
Constitution save in those cases where some substantial
question of law of general or public importance is
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involved or there is manifest injustice resulting from the
impugned order or judgment. The dismissal of a special
leave petition in limine by a non-speaking order does
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not therefore justify any inference that by necessary
implication the contentions raised in the special leave
petition on the merits of the case have been rejected by
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this Court. It may also be observed that having regard to
the very heavy backlog of work in this Court and the
necessity to restrict the intake of fresh cases by strictly
following the criteria aforementioned, it has very often
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The ratio of the judgment would apply even in cases such as the
one before us. In fact, in such cases it would apply with greater force.
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This is for the reason that the petitioner was not even a party to the
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Writ Petition in which the Division Bench of this Court passed the
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Singh who was herself also not a party to the Writ Petition in which
the Division Bench passed the said judgment. If a party who was
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before the Court is not barred from even filing a review before the
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High Court despite the fact that a Special Leave Petition was
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dismissed, it can hardly be suggested that a third party cannot file an
State of Gujarat & Anr. (2002) 3 SCC 202, which reads as under:
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appellants contended that to maintain consistency in the
orders passed by this Court these appeals should be
accepted and the impugned judgment of the Gujarat
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High Court be set aside otherwise different laws
declared by different High Courts in different States
would prevail leading to uncertainty and confusion. The
submission is misconceived. Repeatedly, it has been held
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that dismissal of special leave petition without a
speaking order would only mean that the Court was not
inclined to exercise its discretion in granting leave to file
the appeal. It does not attract the doctrine of merger and
the view expressed in the impugned order does not
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become the view of this Court. The dismissal of the
special leave petition by a non-speaking order would
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remain a dismissal simpliciter in which permission to file
the appeal to this Court is not granted. This may be
because of various reasons. It would not mean to be the
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declaration of law by this Court. In a recent judgment of
a three-Member Bench in Kunhayammed v. State of
Kerala after exhaustive consideration of the entire case
law this Court has reaffirmed this position. Summing up
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High Courts thus creating uncertainty and confusion
cannot be accepted as the law declared by this Court
would be the law prevalent in the country.
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20. We are of the opinion that it is open to us to construe the
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judgment of the Division Bench and that the dismissal of the SLP filed
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21. In the circumstances, Rule is made absolute in terms of prayer
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(a) and (b). There shall, however, be no order as to costs.
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This judgment and order is stayed upto and including 15th
December, 2013.
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