Deb Kumar Banerjee vs Damodar Valley Corporation

Susanta Chatterji, J.—The matter is taken up for final hearing. It appears from the materials on record that the present writ petition has been filed by one Deb Kumar Banerjee praying inter alia for a writ of mandamus to restrain the Respondents from giving effect to the impugned advertisement dated April 5, 1991 copy of which is Annex. ''H'' to the writ petition and to command the Respondents to give appointment to the Petitioner according to the empanelled list of successful candidates which is annexed to the writ petition.

On July 9, 1991 an interim order was made after hearing learned Advocates for both sides that one post of Technician Grade II shall not be filled up till the disposal of the writ petition.

It is stated in detail that pursuant to an advertisement for the posts of Technician Grade II and Telecommunication Mechanic in D.V.C. published in The Statesman the Petitioner made an application offering his candidature and he was directed to appear in the written test and also in the interview-cum-practice test on February 5, 1988. It is placed, on record that the Petitioner was selected and his name was included in the panel. It is stated further that out of 29 empanelled candidates, SI. Nos. 1 to 19, 28 and 29 have already been appointed between December 29, 1988 and July 27, 1989. The Petitioner is alleged to have made a representation to the Chief Engineer regarding appointment. He has also made a representation to the Prime Minister. He also made a representation before the Secretary D.V.C. and Deputy Chief Engineer. He has also sent a demand "notice.

The grievance, of the Petitioner is that without exhausting the penal and without giving appointment to the Petitioner, fresh advertisement has been published to by-pass the candidature of the Petitioner.

The petition is contested by the Respondents D.V.C. by filing affidavit-in-opposition The Petitioner has filed affidavit-in-reply reiterating the point taken in the main writ petition and also denying the stand taken by the Respondents authorities. However, at the time of final hearing none appeared for the Respondents D.V.C. nor any affidavit has been filed.

Having heard Mrs. Bane.rjee, learned Advocate for the Petitioner at length this Court finds that the Petitioner duly appeared in the selection test and his name, appeared in the panel.

The only point taken by the Respondents authorities is that after expiry of one year the panel has died its natural death and there is no bar and/or impediment for the Respondents authorities to publish a fresh advertisement and to proceed with the matter in accordance with law. They have referred to a rule and/or instruction according to which the life of a panel is for one year. Mrs. Banerjee however, emphasised that such a rule and/or instruction is directory and not mandatory. Regard being had to the materials on record there is no prohibition to consider the case of the Petitioner and to deny him the appointment while he has fulfilled all the tests and his case has been kept in a cold storage for an indefinite period.

Attention of the Court has been drawn to a judgment in Nirmal Kumari and Anr. v. Delhi Administration and Anr. C.A.T. 1990 (1) 349 '' wherein it has been observed that empanelled candidate has a right to be appointed and he cannot be bypassed by resorting to direct appointment by inviting fresh application. Reliance was placed to a decision in Prem Prakash Vs. Union of India (UOI) and Others, Looking at the said decision it has been observed that once a person is declared successful according to the merit list, selected candidates, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.

Considering all the aspects of the matter this Court finds, notwithstanding the expiry of the panel in the manner as alleged by the Respondents, the Respondents authorities should have appointed the Petitioner in view of the panel prepared in terms of the earlier advertisement and while the name of the Petitioner was included in SI. No. 24. The Petitioner has alleged that the person in SI. No. 28 has been appointed even after the expiry of the panel.

It is not appreciated by this Court as to why the records have not been produced before this Court to meet the allegations of the Petitioner and to satisfy the conscience of the Court that the Respondents have acted fairly to fill up the vacancies in terms of the panel. Since the Respondent are found to have acted not bona fide and fairly, there is no bar and/or in Petitioner to command the Respondents to consider giving appointment to the Petitioner since one post has been kept vacant while the writ petition was entertained. Since in the present case the vacancy is existing and the name of the Petitioner appeared in the earlier panel, this Court finds sufficient: merit in the writ petition.

For the foregoing reasons let appropriate writ be issued commanding the Respondents authorities to consider issuing a letter of appointment to the Petitioner within a period of three months from the date of communication of the order.

The writ petition is thus allowed. There will be no order as to costs.

Let xerox copy of this order be handed over to the learned Advocate for the Petitioner on his application and undertaking to apply for and obtain certified copy of the same.