Raj Kumar vs Food Corporation of India and Another

We have heard Shri G.K. Singh, learned Counsel for the petitioner-appellant. Shri Prakash Padia appears for the Food Corporation of India.

This Special Appeal arises out of judgment of learned Single Judge dated March 7, 2006, by which he has dismissed the writ petition filed by Shri Raj Kumar-the petitioner-appellant for his appointment as Assistant Grade III (Depot) in UP Region in pursuance to the advertisement issued for filling up 175 vacancies in the year 1986. The petitioner appeared in the selections and was empanneled at serial No. 56 in the select list of general category candidates. In the earlier Writ Petition No. 10225 of 1987 filed by the petitioner along with Shri Prem Prakash Sharma; Shri Pravin Kumar Sharma and Shri Ram Narain; this Court, by its judgment dated 12.9.1997, found that the Corporation has not given sufficient reasons to fill up all the vacancies worked out for open market, from the departmental candidates. The Court also found that the administrative instructions issued subsequently will not prevail over the regulations already in existence; if the selection process had started and written test and interviews were held, the change of policy in the aforesaid manner, was not permissible. A writ of mandamus was issued to complete the selection process and to pass appropriate orders for appointments.

The Corporation gave appointment to only two of the petitioners. It is alleged that since the petitioner had filed a Contempt Petition, the Corporation did not give appointment to the petitioner on which he filed the Writ Petition No. 19126 of 1999. The writ petition was dismissed, giving rise to this Special Appeal.

Learned Single Judge has held that in the earlier judgment dated 12.9.1997 the learned Judge had wrongly interpreted the settled principles of law. The judgment was not in consonance of the judgments of Supreme Court in which it has been held that the persons applying for selection do not get indefeasible rights to be appointed. The employer can, for justifiable reasons, cancel the select list or refuse to appoint the selectees.

Learned Single Judge thereafter also considered the petitioner''s case on its own merit and found that the petitioner was empanneled at serial No. 56. The Corporation was required to fill up 61 vacancies from open market. It, however, decided to fill up only 51 vacancies, and two more were given appointments in pursuance to the directions issued earlier by this Court. In this manner, 53 persons were appointed and since the petitioner was at serial No. 56, he was not offered appointment.

Shri G.K. Singh submits that there was 61 vacancies to be filled up from the open market. The petitioner was diligently pursuing his remedies in the High Court. If learned Single Judge wanted to disagree with the earlier judgment on the principles of law, it was open to him to refer the matter to a larger bench. It was not permissible for him to disagree with the reasons given in the earlier judgment and hold them to be per-incuriam and thereafter decide the case. The judgment inter-se between the petitioner and the Corporation was binding upon the Corporation.

Shri G.K. Singh submits that the petitioner was empanneled at serial No. 56, and thus he has a right to be appointed, unless the Corporation come out with any valid and justifiable reasons. In the earlier judgment learned Single Judge specifically held that the departmental instructions to fill up all the vacancies from the departmental candidates could not have overridden the statutory regulations, and that once the process had started, the change of policy was not permissible.

We do not find ourselves in agreement with the argument advanced by Shri G.K. Singh. Even if we do not agree the findings recorded by learned Single Judge declaring the earlier judgment to be per-incuriam, on the findings recorded by learned Single Judge on perusal of the original record, the petitioner was not entitled for appointment. The petitioner''s representation was rejected on the ground that he was not found fit for appointment on the findings recorded by the Deputy Manager (Personnel) for Senior Regional Manager, Food Corporation of India by order dated 28.2.1998. He was found unfit for appointment on the said post as he was not selected in the written test and interviews held in 1986.

Learned Single Judge found that 87 vacancies were notified on 31.7.1995 as general class candidates and 88 were notified for reserved category candidates. The Corporation subsequently decided to appoint only 51 candidates in the general category and 19 candidates in the reserved category. Only 51 candidates were given appointment letters. Two more candidates were given appointment after the result was declared by the Corporation as they were within the purview of initial 51 candidates. The Corporation thus decided to take candidates upto serial No. 53, from the select list. The petitioner was placed at serial No. 56 and was therefore not entitled for appointment. Learned Single further found that the life of the select list was only one year and had expired long ago.

Even if the petitioner is held to be entitled to the benefit of the earlier judgment inter-se between the parties, learned Single Judge has given sufficient reasons to justify the decision of the Corporation to appoint only 53 candidates from the open market, and that the life of the select list had long expired. We are further of the opinion that it is not appropriate for the court to issue a writ of mandamus to give appointment, to a person after 24 years of the selections.

In the aforesaid facts and circumstances without going into the legal issue involved in the matter as to whether the earlier judgment was per-incuriam, we do not find any good ground to interfere with the judgment of learned Single Judge.

The Special Appeal is dismissed.