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Judgment
D. Raju, J.—The above writ appeal has been filed against the order of a learned single Judge of this Court dated 27.3.1996 in
W.P.No.6334 of 1986. whereunder the learned Judge rejected the writ petition filed seeking for the issue or a writ of mandamus, directing the
respondent to post the appellant as a clerk with effect from 26.12.1985 and award exemplary costs came to be dismissed. The facts which need
our reference in this order for considering the question raised before us are beyond controversy. The appellant, a member of the Scheduled Caste
Community, claims to have passed Pre-University Course Examination from Madurak-Kamaraj University and thereafter undergone Turner
Course in I.T.I. Due to economic constraints he look up employment in Rane (Madras) Ltd.. during the year 1975 and while in such service he
became an active member of the Rane (Madras) Ltd., Employees Union and claims to have taken part in various struggles of the workers for
improving their conditions of Service. This, it is said, irked the Management and as a process of victimisation, he and about 23 persons were sent
out of service on various charges. So far as the appellant is concerned, he was dismissed on 27.7.1982. on being found guilty of charges such as
(a) indulging in acts subversive of efficiency and (c) refusal to accept service of notice when served by messenger or in the factory premises or by
registered post. The appellant''s claim for reference for adjudication of the non-employment appears to have been turned down and he has also
challenged the same before the Court.
While matters stood thus, the appellant participated in the call for recruitment for clerical cadre of posts in the nationalized banks and he was
provisionally selected and allotted for the respondent-bank, viz.. Central Bank of India for appointment as Clerk. Thereupon, the respondent
issued a notice and called upon the appellant to produce the various certificates and also produce proper relieving certificate from his employer, if
already employed, at the time of joining on appointment.. The appellant, as a consequence, by his letter dated 26.12.1986 to the respondent,
explaining his difficulties and seeking for the order of appointment expeditiously. On the request made by the respondent, a further reference about
a person known to him was also given and disappointed with the delay in being appointed caused the issuance of a notice dated 19.5.1986
through his counsel. This evoked response in the form of reply from the counsel for the respondent-bank, that having regard to his past history of
dismissal by the previous employer, the respondent has decided not to appoint the appellant. It is at this stage that the appellant filed the writ
petition for the relief noticed supra. The respondent filed a counter affidavit opposing the claim.
Before the learned single Judge. While relying upon the decision of the Andhra Pradesh High Court reported in A. Manik Rao Vs. Director,
Defence Mettalurgical Research Laboratory, Hyderabad and Others, wherein it was held that before cancelling a provisional appointment, the
Government is bound follow the principles of natural justice and failure to do so is a serious vitiating factor the action of the respondent was
attacked as illegal and of unwarranted. The learned Single Judge was unable to agree with the stand taken for the appellant on the ground that
there is difference between a case of provisional appointment and provisional selection and the case of the appellant being merely one of the
provisional selection subject to fulfilment of certain obligations, the same does not confer any right as such. Consequently, the writ petition was
dismissed by the learned Single Judge.
Aggrieved, the above appeal has been filed and Mr. K. Chandru learned counsel for the appellant, vehemently contended before us that the
distinction attempted by the teamed Single Judge was not warranted and in as much as the action of the respondent in denying appointment
resulted in civil consequences, observance with principles of natural justice is a must and a condition precedent. Argued the learned counsel further,
the dismissal for union activities by the previous employer cannot be held as a stigma for any future employment and in as much as the appellant has
not suppressed am information about the past employment and the orders passed against him by the previous employer, there is nothing which
rendered him unfit for public employment and consequently the writ petition should have been allowed is prayed for. The learned Counsel also
invited our attention to some more case law oil the subject. The learned Counsel also invited our attention to some more case law on the subject.
The learned Counsel for the respondent-bank, while adopting the reason assigned by the learned single Judge, submitted that the selection of the
appellant was only provisional and it was always open to the Bank to make enquiries and verify the facts before issuing the actual order of
appointment and the decision taken to refuse appointment to a person who was dismissed from service by his previous employer for proved
misconduct cannot be said to be either arbitrary or unreasonable and none of the appellants legally protected rights could be said to have been
violated thereby warranted the interference of this Court.
We have carefully considered the submissions of the learned counsel appearing on either side. The decision reported in Premakumar Vs.
General Manager, Telecommunications, is that of a learned single judge of the Kerala High Court wherein it has been held that the Government
cannot refuse employment to anyone on the ground of his political views or convictions or affiliation to a particular political party and it is only on
proper materials, the Government could come to the conclusion that a person is not fit for appointment to a particular post. The learned Judge, at
the same time, observed that it is open to the State to take into account the character and antecedents of the person for appointment in service and
in our view this is what has actually happened in this case. In the decision reported in 1975 S.L.J. 321 (A. Rama Rao v. The Post Master General,
Andhra Circle and others), a learned single Judge of the Andhra Pradesh High Court had an occasion to deal with a case of a person who was
discharged from training on the basis of police verification report which disclosed that the said person was an active member of Student Federation
and also attended the meeting Yuva Janasaugh organised by C.P.M. The discharge was held to be bad in that case, because there was no
allegation therein that the person concerned ever participated in any illegal or subversive activity. In our view, the same could not be said of a
person dismissed from service by previous employer on proved misconduct and in any event, the learned Judge was also concerned in that case
with the discharge of a person who was given orders for undergoing training and that too in the midst of training. Even the decision reported in A.
Manik Rao Vs. Director, Defence Mettalurgical Research Laboratory, Hyderabad and Others, which was relied upon for the appellant before the
learned Single Judge, dealt with the case of a person denied of appointment after provisional selection, on the ground of a conviction during
declaration of emergency. The learned Judge in this context also noticed the Government of India Circular Orders on 10.5.1977 wherein even
employees dismissed during Emergency for reasons connected with emergency must be reinstated in service without break in service. As a matter
of fact, the learned Judge was not also prepared to subscribe to the wide propositions laid down in Rama Rao''s case (supra) of the very same
High Court. In the decision reported in State of Madhya Pradesh Vs. Ramashanker Raghuvanshi and Another, the Supreme Court was dealing
with a case of termination of services of a teacher on the basis of a police report that he had once taken part in R.S.S. and Jan Sangh activities.
Apart from the act that it concerned the case of a person in service, after appointment, being terminated the learned Judge noticed the fact that
there was no allegations of the person concerned being allegedly engaged in any subversive or others illegal activities, nor was there any law of
those organisations the meetings of which the person concerned was said to have attended. This decision has no relevance whatsoever to nature of
case before us who is yet to gain entry into service.
Per Contra, it could be seen that a Constitution Bench of the Supreme Court in the decision reported in Shankarsan Dash Vs. Union of India,
categorically held that the mere inclusion of a person''s name in merit list does not confer any right in him to be selected and appointed, though
some vacancies notified may be remaining unfilled after completion of selection process. The same view has been reiterated by the Apex Court in
the decision reported in N. Mohanan Vs. State of Kerala and Others, by holding that mere inclusion of name in the list of selected candidates does
not confer any right on the said candidate to be appointed to service.
As pointed out earlier, the case before us is one of a person provisionally selected and allotted for further verification about credentials and to be
thereafter appointed into service. During the course or verification of the credentials and also in the process of consideration of the materials
produced by the appellant himself it came to light that he was earlier dismissed from service for proved misconduct by his previous employer and
the order of dismissal still remains undisturbed and became final. Can there be any right in the appellant to compel the respondent - bank to have
him appointed against its Will when the respondent-Bank has decided, not to appoint him. on account of his previous conduct and blemish
culminating in an order of dismissal passed by the previous employer which is still in force? There can be only one answer and that too in the
negative and against the appellant. The principles noticed by us supra, which are well settled will go to show that the appellant had no indefeasible
or legally protected right to gel him. appointed into the service of their respondent merely on account of his provisional selection and consequently,
there is no scope for seeking or issuing any writ of mandamus, as prayed for by him. For all reasons stated above, we see no merits whatsoever in
the above writ: appeal. The writ appeal consequently fails and shall stand dismissed. No Costs.