OSWP1319.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

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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. ]

2. Union of India, through their Mumbai ]

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Office located at: Aayakar Bhavan, ]
M.K. Road, Mumbai - 400 023. ] ... Respondents
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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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K.R. SHRIRAM, JJ.

FRIDAY, 25TH OCTOBER, 2013

JUDGMENT : [Per S.J. Vazifdar, J.]

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1. The petitioner has challenged the first respondent's decision

communicated by its letter dated 30th April, 2013, recalling /

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cancelling her selection to the post of Manager in MMG Scale II.

The petitioner has also sought a writ of mandamus directing

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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

India. The reference in this judgment to the respondent is, therefore,

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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

judgment of a Division Bench of this Court dated 1st April, 2013, in

Writ Petition (Lodg) No. 2825 of 2012 in the case of Sonali Pramod
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Dhawde & Ors. vs. the respondents to this petition. It is necessary,

therefore, to state the facts only briefly.

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4. Prior to the said judgment, the respondent filled up vacancies to

the different scales by way of internal promotions as per its promotion

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policy as amended from time to time and by way of direct recruitment

of officers as per the recruitment policy as amended from time to time.

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The filling up of vacancies, inter-alia, to the said post viz. Assistant

Manager, Scale II was done by promotions and by direct recruitment,

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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

dated 14th February, 2012, the International Institute of Professional

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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

respondent's reference in relation to campus recruitment drive. The

campus recruitment drive was conducted in various institutions all

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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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participate in the said drive.

The petitioner was a student of the said institution and

participated in the campus recruitment drive. The said institution, by

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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

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process of their joining the respondent-bank. The e-mail mentioned

the names of five such students, which included the petitioner.

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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

recruited five candidates of MBA programme from its institute at the

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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

2012. The petitioner therein had challenged the said recruitment

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policy dated 5th March, 2009, of permitting the filling of vacancies in

the officers cadre earmarked for direct recruits through campus

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interviews or campus recruitment process. By the said order and

judgment dated 1st April, 2013, a Division Bench of this Court

allowed the Writ Petition. Paragraph 58 of the judgment, which falls

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for consideration in the present case, reads as under :-

"58. For the aforesaid reasons, the petition ought to

succeed at least to the extent of declaring the stated

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recruitment policy of the respondent - Bank dated

5.3.2009 as also the Circular issued by the Government
of India dated 22.2.2005, which provides for recruitment

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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 :-

"Heard Mr. Mukul Rohatgi, learned senior counsel.

We see no reason to interfere. The special leave petition
is dismissed."
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7. The result, therefore, is that the recruitment policy of the first

respondent for recruitment of officers in public sector banks against

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permanent vacancies on regular basis by resorting to campus

recruitment / Interview method and not by inviting applications from

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public at large by issuing advertisement is illegal and unconstitutional.

8. The petitioner by her letter dated 7th April, 2013, inter-alia,

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stated that the said judgment restrained the first respondent from

making appointments in future and did not affect the appointments

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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,

addressed to the petitioner's institute, the respondent referred to the

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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."

10. Mr. Bukhari, the learned counsel appearing on behalf of the

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petitioner submitted that the said judgment and order did not affect the

selections made pursuant to the said campus recruitment drive. The

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judgment expressly directed the respondents to forbear from making

any such appointments by resorting to campus recruitment mechanism

in the future. We find Mr. Bukhari's submission on behalf of the

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petitioner to be well founded. It is clear to us on a reading of the

judgment of the Division Bench as a whole that it did not operate in

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respect of the 238 candidates, including the petitioner. This is clear

from the following facts.

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11. The respondents have issued letters of appointment to 99

candidates out of 238 candidates, who were selected pursuant to the

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campus recruitment drive. They have not issued letters of

appointment to the others including the petitioner on the ground that

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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

were recruited through an advertisement and by campus mode done by

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them from time to time. This is clear from paragraphs 39 and 41 of

the judgment which read as under :-

"39. On the basis of this approval to the amended

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recruitment policy, which was intended to be only one

time measure and to make those appointments on contract
basis, the appointment process through campus interview
to fill up the regular posts earmarked for direct recruits,
has been resorted to on year to year basis since 2009. That

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is in transgression of the limited approval given by the

board of Respondent Bank. The chart showing the
comparative position of recruitment of officers through

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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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MBAs/CAs through campus mode in view of the Court's

order.
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41. Notably, most of the Colleges / Institutions from

where campus recruitment has been done are private
colleges. This gives credence to the theory of possibility
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of pick and choose approach adopted in empanellment of

the stated colleges / institutions, albeit after scrutiny of
applications by a committee set up by the respondent
Bank. A grave element of arbitrariness is certainly
introduced in the empanellment procedure. Further, it is
evident that equal opportunity to all similarly placed
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candidates in the matter of public employment is far to

seek, no matter the insignificant number of appointments
made through the mode of campus interview, i.e., only
12.27% out of total intake of officers during the relevant
period."

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It is agreed that it is the two stars (**) that apply to the

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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

decision to appoint them and the issuance of the letters of appointment

was, in the facts and circumstances of the case, a mere formality

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pursuant to the decision already taken to appoint them. It is not even

the respondents' case that in respect of the 99 candidates who have

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been issued letters of appointment, anything further was done

thereafter. The 99 candidates were also issued letters of appointment

without anything more. The case of the remaining 139 candidates

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which includes the petitioner, therefore, stands on the same basis as

that of 99 candidates.

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13. This view is further supported by the correspondence referred to

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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.

An e-mail dated 13th September, 2012 stated that the Central

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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.

Even the impugned communication dated 23rd April, 2013

expressly 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

selection committee."
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It is important to note two things. Firstly, the impugned order

recalled / cancelled the selection. If the candidates had not been

appointed, there would have been no question of their selection being

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recalled or cancelled. Secondly, as the sentence itself indicates, the

said candidates had been selected.

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14. In the circumstances, the petitioner is also entitled to the benefit

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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 :-

"58. ................. The respondents are directed to forbear

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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

operate against the petitioner.

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15. In the circumstances, the respondents' Special Leave Petition

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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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sought to construe the judgment of the Division Bench of this court.

The order of the Supreme Court did not construe the judgment. It
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merely rejected the petition. It cannot therefore, be held that the

Supreme Court impliedly rejected the respondents' construction of the

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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

Court. The petitioner in addition to challenging the judgment of the

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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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XIX For that the Judgment of the Hon'ble High

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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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purview of the Judgment passed by the Hon'ble High

Court of Judicature at Bombay. Therefore, the action of
the bank is wholly arbitrary, illegal and contrary to the
direction of the Hon'ble High Court of Bombay."
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The Supreme Court, on 5th August, 2013, dismissed the Special

Leave Petition by the following order :

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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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purview of the judgment. The contention raised in the above grounds

is similar to the one raised before us. We are not concerned here with
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a challenge to the order of the Division Bench of this Court. Indeed, it

would not be open for us to consider a challenge to the judgment for

we are bound by it. The question before us is the interpretation of the

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judgment. The only question is whether the dismissal of the SLP filed

by Kumari Neha Singh must be construed as the Supreme Court

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having held that the action of the bank is not contrary to the order of

the Division Bench. In other words, whether in view of the dismissal

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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

petitioner relied upon the judgment of the Supreme Court in

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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 - it merely exercises its discretionary jurisdiction as to

whether or not to grant leave to appeal. The rejection of the SLP is an

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expression of opinion that a case for invoking the appellate

jurisdiction was not made out. It was further held that when a Special
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Leave Petition is dismissed, the Supreme Court does not comment

upon the correctness or otherwise of the order from which leave to

appeal is sought. The Supreme Court held as follows :-

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"Dismissal at stage of special leave without

reasons no res judicata, no merger

15. Having so analysed and defined the two stages of

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the jurisdiction conferred by Article 136, now we

proceed to deal with a number of decisions cited at the
Bar during the course of hearing and dealing with the

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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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and that a High Court could not refuse to entertain an

application under Article 226 of the Constitution on the
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ground that the aggrieved party could move the Supreme

Court under Article 136 of the Constitution. Their
Lordships observed that such a broad statement of law is
not quite accurate, although substantially it is correct.
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16. In Indian Oil Corpn. Ltd. v. State of Bihar

[(1986) 4 SCC 146] there was a labour dispute
adjudicated upon by an award made by the Labour
Court. The employer moved the Supreme Court by filing
a special leave petition against the award which was
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dismissed by a non-speaking order in the following

terms:
The special leave petition is dismissed.

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17. Thereafter the employer approached the High

Court by preferring a petition under Article 226 of the
Constitution seeking quashing of the award of the

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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)

The effect of a non-speaking order of dismissal of a

special leave petition without anything more indicating
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the grounds or reasons of its dismissal must, by

necessary implication, be taken to be that this Court had
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decided only that it was not a fit case where special

leave should be granted. This conclusion may have been
reached by this Court due to several reasons. When the
order passed by this Court was not a speaking one, it is
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not correct to assume that this Court had necessarily

decided implicitly all the questions in relation to the
merits of the award, which was under challenge before
this Court in the special leave petition. A writ
proceeding is a wholly different and distinct proceeding.
Questions which can be said to have been decided by
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this Court expressly, implicitly or even constructively

while dismissing the special leave petition cannot, of
course, be reopened in a subsequent writ proceeding
before the High Court. But neither on the principle of
res judicata nor on any principle of public policy

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analogous thereto, would the order of this Court

dismissing the special leave petition operate to bar the
trial of identical issues in a separate proceeding namely,

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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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been the practice of this Court to grant special leave in

cases where the party cannot claim effective relief by
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approaching the High Court concerned under Article

226 of the Constitution. In such cases also the special
leave petitions are quite often dismissed only by passing
a non-speaking order especially in view of the rulings
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already given by this Court in the two decisions

aforecited, that such dismissal of the special leave
petition will not preclude the party from moving the
High Court for seeking relief under Article 226 of the
Constitution. In such cases it would work extreme
hardship and injustice if the High Court were to close its
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doors to the petitioner and refuse him relief under

Article 226 of the Constitution on the sole ground of
dismissal of the special leave petition.

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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

said judgment or in the Special Leave Petition filed by Kumari Neha

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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

application, including a Writ Petition which involves the construction

of the judgment of this Court merely because an SLP against the

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judgment was rejected in limine.

19. Mr. Bukhari also relied upon paragraph 14 of the judgment of

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the Supreme Court in Saurashtra Oil Mills Association, Gujarat v.

State of Gujarat & Anr. (2002) 3 SCC 202, which reads as under:
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"14. Relying upon a judgment of the High Court of

Andhra Pradesh in Writ Appeals Nos. 1546 to 1549 of
1998 decided on 30-6-1999 (copy of which has been
placed on the record) wherein a similar action of the
Government of Andhra Pradesh relating to the similar

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provision was struck down and against which Special

Leave Petition (C) No. CC Nos. 3461-64 of 2000 was
dismissed by this Court, counsel appearing for the

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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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the conclusion in clause (iv) of para 44, it was held:

(SCC p. 384)
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44. (iv) An order refusing special leave to appeal

may be a non-speaking order or a speaking one. In
either case it does not attract the doctrine of
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merger. An order refusing special leave to appeal

does not stand substituted in place of the order
under challenge. All that it means is that the Court
was not inclined to exercise its discretion so as to
allow the appeal being filed.
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Thus, the dismissal of the special leave petition in limine

against the judgment of the High Court of Andhra
Pradesh would not operate as a binding precedent
taking away the jurisdiction of a coequal Bench to
adjudicate on the same point on merits in a case where

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the leave to file the appeal has been granted. Submission

that different laws would be prevalent in different States
because of the different views expressed by different

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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

by Kumari Neha Singh does not preclude us from doing so.

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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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K.R. SHRIRAM, J. S.J. VAZIFDAR, J.

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