Prasanna Kumar Nayak and ors. Vs. National Insurance Co. and ors. - Court Judgment

B.L. Hansaria, C.J.

1.The petitioners, four in number, are before this Court invoking its writ jurisdiction which, being couched in comprehensive phraseology, confers wide powers on the High Court to reach injustice wherever it is found, as stated in Dwarkanath v. I.T.O., A.I.R. 1966 S.C 81. The language of this Article permits every High Court not only to issue writs of habeas-corpus, mandamus, prohibition, quo warranto and certiorari, which were being issued in England, but also to issue such directions or orders which the situation demands to meet the requirements of a case. In Basappa v. Nagappa, A.I.R. 1954 S.C. 440, it was stated that the language used in Article 226 was very wide and the powers of the High Court extended to issuing orders, writs or directions as may be considered necessary for enforcement of fundamental rights and for other purposes as well.

2. We have prefaced the judgment with these observations because Shri Nanda appearing for the opposite parties submitted, on Shri Dora placing before us a judgment of the Calcutta High Court in which in a similar matter the Court had granted relief 'as a special case and on humanitarian ground', that Courts cannot grant relief on humanitarian ground or being of the view that mercy demands the relief. We, therefore, desired Shri Nanda to know that writ power of this Court is very wide and it can reach injustice wherever it is found and pass such orders to remedy the injustice which the Court may think fit and proper. Justice has to be tempered with mercy; it cannot appear cruel, and even where an offender of law is sentenced to death, the judicial act is not an instance of cruelty, it is rather performed in larger public interest which has to prevail over individual interest. Such an act performed with heavy heart is a duty which has to be discharged for greater good of the society.

3. The above apart, a writ Court shall have to see the reasonableness of the action to protect violation of Article 14 of the Constitution. A particular action would seem unreasonable if justice of the case would satisfy the Court that the particular action was not called for on the facts and circumstances of the case. We thus see injustice and unreasonableness come very close and in some cases the dividing line may disappear. So, injustice done to a particular individual or class of persons may be regarded as unreasonable act by a writ Court permitting it to interfere with the same and pass appropriate order to take care of the injustice. If there be discrimination, interference by a writ Court can be claimed as a matter of right.

4. Let us now see what is the grievance of the petitioners. What had happened was that an advertisement was issued by National Insurance Company (opp. party No. 1) inviting applications for the posts of Assistant (Typist) for any or all of the subsidiary companies of General Insurance Corporation of India which includes New India Assistance Company (opp. party No. 2) also. The advertisement was published in the daily 'Samaj' of July 8, 1984. The advertisement was for eastern zone, namely, West Bengal, Bihar, Orissa and Assam. The petitioners applied for the posts and after tests were held, they were found qualified. A merit list was prepared on December 10, 1984 as at Annexure 2 in which the petitioners' names found place at Serial Nos. 82, 83, 87 and 88. The list was to remain valid for one year. But then, appointment to the aforesaid posts continued to be made till the end of December, 1987 by the subsidiary companies on the basis of the aforesaid list. By this process, the incumbent whose name was at Serial No. 81 also came to be appointed. As two of the petitioners were at Serial Nos. 82 and 83 and two others at Serial Nos. 87 and 89, they were looking forward to their appointments also. But then the opposite parties decided from January, 1986 onwards not to draw from the aforesaid panel of names. The petitioners have felt aggrieved at this as, according to them, the opposite parties having themselves appointed persons from out of the aforesaid selection list till December, 1987, though the validity of the list expired in December, 1985, there was no justification to deny appointments to them when their turn came on the ground that the validity of the list had expired in December, 1985. It is contended by Shri Dora that no reason has been assigned by the opposite parties in refusing to give effect to the select list after December, 1987, which action has, therefore, to be regarded as discriminatory, arbitrary and unreasonable.

5. Shri Nanda submits that the petitioners have no right to claim appointment on the basis of the list whose validity was to expire by December, 1985; and in any case the fact that a person's name finds place in the select list does not clothe him with the right to claim appointment, as staled in Shankarsan Das v. Union of India, 1992-II-LLJ-18 (S.C.).

6. We have duly considered the aforesaid submissions and in normal course we would not have entertained the grievance of the petitioners and exercised our writ power to come to their aid in view of the legal position expressed in the aforesaid Constitution Bench case that selection of a person does not give him any right to the post; but the facts of the present case do demand an order in favour of the petitioners. We have said so because the action of the opposite parties ,in drawing upon the select list till December, 1987 whose validity was to lapse by December, 1985, does not permit them to say that they would not act upon the list after December, 1987. No reason has been advanced before us to suddenly stop drawing upon the list after December, 1987. According to us, estoppel by conduct would prevent the opposite parties from taking the stand they have put forward to deny employment to the petitioners. In the absence of any reason having been advanced for stopping reliance on the list from December, 1987 onwards, we would regard this action as arbitrary and unreasonable. It is also discriminatory inasmuch as from the materials on record, we do not find any valid basis to deny that benefit to the petitioners which had been granted even to the person whose name was under Serial No. 81. The discriminatory treatment is almost writ large. We, therefore, feel duty bound to give relief to the petitioners not on 'humanitarian ground' which had weighed with the learned single Judge of the Calcutta High Court before whom also some of the persons whose names were in the list appertaining to Calcutta Zone were the petitioners, but because of the mandate of Article 14.

7. However, to take care of the submission of Shri Nanda that if the opposite parties would be directed to absorb the four petitioners in the posts of Assistant (Typist), it would be not permissible for them to deny appointment to other persons whose names found place in the aforesaid select list, because of which the opposite parties shall have to give appointment to all the persons who had been selected and whose names are in the list. In this connection, we would like to say that there would be no such compulsion on the part of the opposite parties and the present decision of ours would not clothe other persons with any right whose names are in the select list but who had slept over the matter for long. Law permits Courts to grant and confine relief to those who come before them and to observe that the same would not be available proprio vigore to those similarly situated but who had chosen to sleep over their rights. Vigilance is said to be the price of liberty. We, therefore, make it clear that this decision of ours would not ipso facto clothe other persons whose names found place in the aforesaid list to claim appointment on the basis of this decision.

8. In the result, the petition is allowed and the opposite parties are directed to appoint the four petitioners as Assistant (Typist) in the existing vacancies in order of their merit; and if there be no existing vacancies, to so absorb them against vacancies immediately occurring in the aforesaid post.