State Bank Of India vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1190 Del

JUDGMENT

B.A. Khan, J.

1. This appeal is directed against writ court order dated 1.10.2002 dismissing appellant's writ petition CWP No. 4815/2000 which sought quashing of order dated 7.12.1999 passed by first respondent rejecting appellant's request for reference of the industrial dispute.

2. Second respondent conducted a test for promotion to the post of Record Keeper-cum-Cashier for vacancies that had arisen up to 1.8.1993. Out of 211 candidates who qualified the test, 184 were promoted from 1.8.1993. Waiting list of 27 candidates was also prepared for promotion against future vacancies which was valid for one year and was to expire on 3.12.1994.

3. Notwithstanding the fact that this waiting list was valid for one year, 8 more candidates figuring in this list were promoted strictly in order of merit against the identified vacancies for 1994-95 under the agreement with the State Bank of India Association leaving out 18 candidates of this list and cancelling the list.

4. These 18 candidates later formed an association called "State Bank of India Wait Listed Employees Association" (appellant herein). They made representations against the cancellation of this waiting list and thereafter sought remedy under the Industrial Disputes Act and on failure of reconciliation, first respondent rejected their request for reference of their disputes for adjudication by order dated 7.12.1999. This order said:-

"The matter is an administrative discretion on which no malafide has been alleged. In addition, absorption from panelist is dependent on occurrence of vacancies and strict maintenance of seniority of the approved panel."

5. Appellant challenged this order and sought its quashing on the ground that it was passed arbitrarily and illegally and that the first respondent had wrongly recorded that no malafide was alleged by them against the action of second respondent when it was specifically pleaded and that the wait list was prepared against future vacancies and was not restricted to one year.

6. It is now known whether first respondent filed any counter to this writ petition justifying its action of rejecting appellant's request for reference of dispute. But second respondent (SBI) justified this order on the plea that no industrial dispute had arisen for adjudication under Section 2-K of Industrial Disputes Act inasmuch as it was neither espoused by the trade union of the employees of the bank nor filed by sufficient number of workmen of the bank. On merits, it was pleaded that selection of a candidate and his empanelment does not confer a right of appointment on him.

7. The writ court dismissed this writ petition by order dated 2.10.2002 without determining the merits of appellant's claim and without testing the validity of first respondent's order declining the reference of dispute for adjudication under the Industrial Disputes Act.

8. This precisely is the appellant's grievance in the present appeal. Their case is that writ court had taken up on itself to adjudicate the dispute and to examine its merit when it was only called upon to test the validity of the first respondent's order declining reference to the Industrial Tribunal. Therefore, all that remained to be seen is whether writ court had bypassed the basic issue before it and had out-stepped to examine the merit of appellant's claim which was not the subject matter of the writ petition before it.

9. Written submissions have been filed by second respondent in a bid to justify the writ court order on the merit of the matter and also in view of the subsequent events which had led to the promotion of three more appellants in a subsequent test.

10. It is submitted on behalf of these respondent that Government (first respondent) had felt that there was no industrial dispute arising in its opinion and, therefore, there was no occasion for any reference to the Industrial Tribunal and a reference, even if made, would have been totally redundant.

11. Reliance in this regard is placed on a Supreme Court judgment in Union v. K.V. Vijesh laying down that a successful empaneled candidate does not get any indefensible right to be appointed to the post. It is also pointed out that the writ court had dismissed appellant's writ petition on considering the additional affidavit of second respondent and on reaching the conclusion that no purpose would be served by interfering in first respondent's order dated 7.12.1999 declining reference. More so, because the test was held subsequently for promotion to the post vide circular dated 14.6.2002 in which 1732 candidates including appellants had applied against 95 vacancies and as a result of which three of the appellants were also promoted. It is also submitted that first respondent (Government) was within its rights to decline the reference while it found inexpedient to do so and that it could not have decided on the expediency without making reference to the merit of appellant's claim.

12. We have gone through the writ court order which, in our view, side-tracks the basic issue i.e. whether declining of reference by first respondent was good or bad. The writ court, on the contrary, had embarked on adjudication of merit of appellant's claim which it ought to have avoided as it fell within the domain of the forums under the Industrial Disputes Act.

13. Adverting to the order of rejection passed by first respondent, it goes without saying that it had rejected appellant's request for reference on merit of their claim which it could not have done. It is well settled that the Government is not competent to go into the merits of the dispute sought to be referred. It can, however, decline a reference but without examination of the merit of the request which falls for adjudication in the concerned forums under the Industrial Disputes Act.

14. This is supported by Supreme Court judgment in M.P. Irrigation Karamchari Sangh v. State of M.P. :-

"7. There may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt an examination of the demand with a view to decline reference and and courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act nugatory."

15. A perusal of first respondent's order declining reference leaves no scope for doubt that it had rejected appellant's request on the merit of their claim by concluding that absorption from panelist was dependent upon the occurrence of vacancies and strict maintenance of seniority, which incidentally was not the nature of dispute for which reference was sought. On the contrary, the dispute for which reference was sought related to unfairness of the action of second respondent in picking up 8 candidates from the waiting list and leaving out 18 candidates which according to appellant was an arbitrary and malafide action. The first respondent had, therefore, misdirected itself in rejecting the appellant's request for reference. It is a different matter that it might have rejected it on some other relevant valid considerations.

16. Therefore, all things considered, both the rejection order passed by respondent No. 1 and the writ court judgment proceeds on a wrong premise. This leaves us with no option but to set aside the impugned writ court order which, in turn, would upset the first respondent's order dated 7.12.1999.

17. Resultantly, appellant's request for reference of the dispute shall revive and the competent authority of first respondent is directed to consider it afresh and to pass appropriate orders in the matter under law.

The appeal is disposed of.