1 SA08/96 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 08 OF 1996 CENTRAL BANK OF INDIA, A body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 and having its Head Office at ‘Chandramukhi’, Nariman Point, Bombay – 21 and its Regional Office, interalia at Ahmednagar, District Ahmednagar ....Appellant V E R S U S 1 Ramchandra Chandrakant Pawar, Age Major, Occ : Agriculture, 2 Jalinder Jagannath Kawane, Age 19 years, 3 Ashok Madhavrao Joshi, Aged 19 years, Respondent Nos. 1 to 3 are resident of Rahuri Factory, Rahuri, District Ahmednagar 4 Mandkuma Balkrishan Dighe, Age Major, Occ : Agriculture, Resident of Harijanwasti, Maliwada, Ahmednagar 5 Shrikant Dashrath Sathe, Age Major, Occ : Agriculture, Resident of as above 6 District Employment Officer, Ahmednagar, Bhutkarwadi, Ahmednagar 7 The State of Maharashtra ...Respondents Shri K.B. Deshpande, Advocate for the appellant Shri Shivkumar Mathpati, Advocate, holding for Shri S.B. Talekar, Advocate for respondent Nos. 3. Shri P.R. Patil, Advocate, instructed by Shri A.D. Shinde, Advocate for respondent Nos. 1, 2 & 4 CORAM : A.V. NIRGUDE, J. DATED : 18th August, 2011 ORAL JUDGMENT : 1. The Central Bank of India filed this appeal against the concurrent findings of the Courts below that they could not have 2 SA08/96 avoided interviewing for the post of peon the respondent Nos. 1 to 5. 2. It is common ground that in the year 1985 or so, the appellant- bank proposed to make list of suitable candidates for giving them employment as Peon. They requested the respondent No. 6 – District Employment Officer of Ahmednagar to send a list of suitable candidates. Accordingly, he sent them two lists, and in the said lists, the names of respondent Nos. 1 to 5 were mentioned. Accordingly, respondent Nos. 1 to 5 appeared initially for a written test. The recruitment procedure contemplated that after a candidate passed the written test, he would be called for oral interview. Respondent Nos. 1 to 5 learnt that they had cleared the written examination and were expecting calls for oral interview. They learnt further that the appellant-bank had decided not to call them for interview. Respondent Nos. 1 to 5 realizing their last chance of getting employment was in peril so they rushed to the Civil Court by filing Regular Civil Suit No. 315 of 1985, seeking mandatory direction to the appellant-bank that they should call them for oral interview. They also sought a temporary mandatory injunction for compelling the appellant- bank to call them for oral interview and succeeded in getting calls for oral interview. 3. It is common ground that respondent Nos. 1 to 5 then appeared for oral interview before the Selection Board of the appellant-bank, and the Selection Board of the appellant-bank found respondent Nos. 1 to 5 eligible and selected them for giving them employment. Their names then appeared in the select list of the candidates. 4. The appellant-bank opposed the suit on only one ground. They said that no doubt they had given calls to respondent Nos. 1 to 5 for 3 SA08/96 written-examination as per the recommendation of respondent No. 6, but they added that after the written-examination was held and the results were out, they received communication from respondent No. 6 that he ought not to have recommended the names of respondent Nos. 1 to 5 for the post of Peon and that it would be better if they were not given calls for interview. The appellant-bank therefore say that since the names of respondent Nos. 1 to 5 were de-recommended subsequently, they are not entitled to employment, and so, the suit should be dismissed. 5. The Courts below held that the appellant-bank could not prove that respondent Nos. 1 to 5 were not entitled to get jobs, because their names were de-recommended. 6. It is also necessary to add that after the decree was passed in favour of respondent Nos. 1 to 5 by the trial Court in 1990, the appellant-bank issued letters of employment in favour of respondent Nos. 1 to 5 and engaged them as Peons. However, they mentioned in the letters that such employment would be subject to outcome of this litigation. 7. In the second appeal, only substantial question of law that arises is as under : “Whether the appellant-bank could prove through a statutory provision that since the names of respondent Nos. 1 to 5 were de- recommended by respondent No. 6, they were not entitled to employment, and if the employment is given to them, they were not entitled to continue in such employment ?” I asked this question specifically to the learned Advocate appearing for the appellant, and he said that he is unable to lay his land on any statutory provision requiring the bank not to give employment or 4 SA08/96 prohibiting the appellant-bank from giving employment to such candidates, whose names were de-recommended by respondent No. 6 – District Employment Officer. 8. At the request of learned Advocate appearing for the respondents, I went through the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and the Employment Exchanges Compulsory Notification of Vacancies) Rules, 1960, but I could not find any provision to support the contention of the appellant-bank. It is indeed pertinent that if the provisions of the above mentioned Act have established Employment Exchange, and if the appellant-bank is an establishment in public sector, as defined under the Act, and if, as per the provisions of this Act, the appellant- bank had given intimation of vacancies to the Employment Exchange, the act on the part of respondent No. 6 – Employment Officer assumes significance. As per provisions of Section 4 of the Act, the officer of the Employment Exchange would recommend names of suitable candidates to the employer of establishment in employment sector or private sector. Sub-section (4) of Section 4 of the Act, reads as under : (4) Notification of vacancies to employment exchange.--- (1) After the commencement of this Act in any state or area thereof, the employer in every establishment in public sector in that state or area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed. (2) The appropriate Government may, by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition. (3) The manner in which the vacancies referred to sub-section (1) or sub- section (2) shall be notified to the employment exchanges and the 5 SA08/96 particulars of employment in which such vacancies have occurred or are about to occur shall be such as may be prescribed. (4) Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those sub-sections. It is clear from this section that an employer is not under obligation to recruit candidates only recommended by the Employment Exchange. However, the learned advocate appearing for the appellant Bank brought to my notice a document on record which is originated from the Ministry of Finance, directing the appellant Bank not to employ anyone in the post of Peon unless he is a candidate recommended by a local employment exchange. In view of this, it is clear that despite the provision of Section 4 quoted above, the appellant Bank was under obligation not to look for other source for inviting applications of suitable candidates. They were obliged to follow the directions of the Ministry and would employ from only the recommended candidates of the employment exchange. He also pointed out further that since the employment exchange subsequently withdrew the respondents No.1 to 5 for the employment because their names were wrongly recommended, even such such suggestion is binding on the Bank. I am afraid, there is no rule suggesting that if a recommendation is withdrawn before or after employment given to a candidate previously recommended by the employment exchange, such candidate would lose his employment. As said above, the learned judges of the Courts below rightly held that when the employment exchange withdrew the recommendation of respondents No.1 to 4, they were not informed about it and were not given an opportunity of being heard because they were about to be visited with 6 SA08/96 great hardship of loosing their employment. The learned judges of the lower Courts also gave importance to the fact that the appellant / defendant did not alleged and prove that respondents No.1 to 5 played fraud with the employment exchange and due to such fraud, their names were wrongly recommended etc.. The blame for recommending names of respondents No.1 to 5 out of turn, was put on certain officer of the employment exchange, who is not individually party to this litigation. Of course, the question as to whether he played a fraud and whether he was in connivance with respondents No. 1 to 5 was never a question before the Court. I am aware that the said officer was subjected to departmental inquiry for whatever he did in respect of the recommendation he sent in respect of respondents No. 1 to 5 and that he was even dismissed from service. Still it is not relevant factor for refusing respondents No.1 to 5 an opportunity of getting simply interviewed for the post they applied for, surprisingly and fortunately for the respondents No.1 to 5, the selection committee of the Bank found them suitable and this in fact really closed the door of this litigation for the appellant Bank. The appeal should therefore, fail. ORDER The appeal stands dismissed. (A.V. NIRGUDE, J.) ts k/2011/August11/sa8.96/ok 7 SA08/96