IMPORTANT POINT
In absence of legal right, Court should not issue a writ of or in the nature of mandamus on the basis of sympathy.

Headnote:SERVICE LAW—Appointment for posts of Live Stock Assistants in the Animal Husbandry—Respondent was selected and appointment letter was issued and sent to respondent on 21-02-1992 asking him to join the post within fifteen days—He failed to join—Respondent then made representations in July 1994 and in 1995 and again in 1999 and finally filed writ petition in 2001—High Court allowed writ directing appellant to appoint respondent—Division Bench upheld order in appeal —Appeal—Waitlist must be acted upon having regard to terms of advertisements and in any event cannot remain operative beyond prescribed period—Even if appointment letter was sent by ordinary post, still statutory presumption arose—Postal delay by itself might not be a ground to take a sympathetic view—In absence of legal right, Court should not have issued a writ on basis of sympathy—Impugned order was liable to be set aside.
       Held : The post was advertised in the year 1987. The selection process was completed in the year 1992. It may or may not be that Respondent herein had actually received his appointment letter. It was, however, expected that he would make enquiries thereabout; particularly when on his own showing those who were below him in the selection list had already been permitted to join. Admittedly, he came to know thereabout in 1994. He allegedly filed a representation and although no reply thereto was given, he did not take any step soon thereafter. He filed another representation only in 1995. He filed the writ petition after a long period i.e. in 2001 when his purported representation filed in the year 1999 was rejected. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel.(Paras 8 and 9)
       The decisions noticed hereinbefore are authorities for the proposition that even the waitlist must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period. It may be true that the appointment letter was sent by ordinary post; but even in relation thereto a statutory presumption arises. It is also well known that postal delay by itself may not be a ground to take a sympathetic view. (Paras 13 and 14)
       In the facts and circumstances of this case, in our opinion, the High Court should not have allowed Respondent herein to join his services only on the basis of sympathy. It is now also well settled that in absence of any legal right, the Court should not issue a writ of or in the nature of mandamus on the basis of sympathy. We, therefore, are of the opinion that the High Court committed a manifest error in allowing the writ petition of Respondent. It is set aside accordingly.(Paras 16 to 18)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The Bihar State Subordinate Service Selection Board issued an advertisement for appointment of 225 posts of Live Stock Assistants in the Animal Husbandry Department. Respondent herein pursuant to or in furtherance of the said advertisement applied therefor. He was declared successful. On or about 21.12.1992, Respondent herein along with other successful candidates had been recommended by the Board. Appointment letters were issued to 195 successful candidates, out of the 200 candidates recommended by the Commission. By a Memo. No. 323 dated 21.02.1992, an appointment letter was sent to Respondent asking him to join the post within fifteen days. He failed to join. Allegedly, on 20.07.1994, he requested Director, Department of Animal Husbandry, to issue an appointment letter to him, stating:

"I came to know that the Department had appointed maximum candidates till date and the appointment proceeding is going on for the remaining advertised 225 posts. My Serial Number is more above in the recommended merit list and junior persons to me have been appointed but I have not received any appointment letter till date for my joining. During the period of enquiry, I have come to know that the appointment letter of the selected candidates have been forwarded, whereas I have not received appointment letter till now.

In the above facts and circumstances, I, therefore, request you to kindly pass the appropriate order immediately for giving me appointment letter."

3. No reply thereto was allegedly given. He did not take any steps in regard thereto and only on 22.06.1995, he again requested the Director of Animal Husbandry to issue him an appointment letter in order to enable him to join the said post, stating :

"With respect, it is to say with regard to earlier application dispatched by me in the aforesaid subject matter that in the light of the subject matter, advertisement by the Bihar Public Service Commission, I had recommended for appointment.

It comes to know that the department had appointed maximum candidates but till date, I have not received my appointment letter. I have been reminding to the Department for a very long period but I have not received any appointment letter by the department till date."

4. A notice on similar terms was issued by him in the year 2000. As his prayer was not acceded to, he filed a writ petition in the High Court of Judicature at Patna, which was marked as CWJC No. 801 of 2001. The State in its Counter Affidavit categorically raised a contention that the panel remained valid only for one year. It was contended that the purported representations made by him in the years, 1994, 1995 and 2000 were not available in the Department, stating:

"That it is further started that in the month of December, 1999, the petitioner had submitted another representation in this Department, the case of the petitioner was referred to the Law Department, Government of Bihar, for opinion and the opinion of the learned Advocate General, Bihar was also sought and tendered. In the light of the opinion given by the Law Department/learned Advocate General, the representation of the petitioner was rejected vide Annexure-5 of the writ application."

5. The said writ petition was taken up for hearing in 2004. The High Court allowed the same, stating :

"While hearing the matter on 29.6.2004 I had verbally asked learned G.P. 6 to find out as to whether any post of Pashudhan Sahayak is vacant pursuant to which a supplementary counter affidavit has been filed. In paragraph 56 of the affidavit it is stated that some posts of Pashudhan Sahayak are vacant in the office. Since the petitioner was already selected for this post and he could not report his joining due to some unavoidable circumstances, in my opinion, his case should be considered for the post of Pashudhan Sahayak which is still vacant.

In the given facts and circumstances of the case, therefore, the authorities concerned are directed to accept the j

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2006 Supreme(SC) 901

IMPORTANT POINTIn absence of legal right, Court should not issue a writ of or in the nature of mandamus on the basis of sympathy.

Cases Referred (4)

IMPORTANT POINT
In absence of legal right, Court should not issue a writ of or in the nature of mandamus on the basis of sympathy.