WP(C) 467/2010 BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI Heard Mr. A.M. Buzarbaruah, learned counsel for the petitioner, and Mr. S.S. Sha rma, learned Senior counsel, for the respondents. 2. The present writ petition is an offshoot of several round of litigations , which came to be crystallised by the judgment and order, dated 23/09/2009, pas sed in Writ Appeal Nos. 36(SH) /2007, 37(SH) /2007 and 38 (SH)/2007, which arose out of WP(C) Nos.157 (SH) /2006, 161(SH) /2006 and 160 (SH)/2006. 3. The facts, which are, necessary for disposal of this writ petition may, therefore, be extracted from the judgment and order aforementioned except pointi ng out further that the petitioner was discharged from Assam Rifles as Havildar, on voluntary retirement, in the year 1993 and, then, came to be appointed as Se curity Guard by the State Bank of India (in short, ’the respondent Bank’). How t he petitioner came to be appointed as Security Guard by the respondent Bank and what was his nature of employment with the respondent Bank has noted by the Divi sion Bench in the writ appeals aforementioned, which read as under:- After such discharge, he registered his name with the Employment Exchange, Shil long. On 28.10.1995, he was appointed as Guard in the particular Branch of the a ppellant bank. Although, no formal order of appointment was issued in favour of the petitioner-respondent but from the materials on record, it appears that the appellant bank utilised the services of the petitioner as temporary guard and th e same was uninterrupted. According to the respondent-petitioner, in spite of as surance for regularisation of his services, the bank did not do anything in this regard. Thereafter, by the impugned letter dated 6.3.2003, the decision of the bank to terminate the services of the petitioner was conveyed on the grounds ass igned in the letter itself. The grounds furnished was Overage (Date of birth-30 .06.1953), under qualified and not an ex-servicemen, you were in Assam Rifles . 4. Being aggrieved by the termination of his service by order, dated 06.03. 2002, aforementioned, the present petitioner along with two others, who were sim ilarly situated, filed a writ petition, under Article 226 of the Constitution of India, which gave rise to W.P(C) 73(SH)/2003 challenging the letter of terminat ion of his services. In the said writ petition, what were the stand of the prese nt petitioner and the respondent and what directions were passed by the Court, w hile disposing of the said writ petition, appear at para 8 to 11, which read as under: In the writ petitions, the stand of the appellant bank was that the petitioner s were appointed/engaged purely on temporary basis as Badli Guards to meet with the immediate administrative exigencies and that their induction in service was not upon any assessment of their suitability, on the basis of the existing guide lines of the bank relating to such appointment. It was further contended that th eir suitability for continuation in service was judged by way of selection condu cted on 16.11.2000 and it was found that none of them was eligible in terms of t he bank’s guidelines to be continued in service. It was further contended that t wo out of three petitioners, namely, Top Bahadur Chetri and Yem Bahadur Gurung w ere not ex-servicemen in terms of the notification dated 27.10.1986, issued by t he Government of India, in the Ministry of Personnel, P.G & Pension. So far as t he other petitioner, namely Shri Gopal Bahadur Thapa is concerned, it was conten ded that he was academically deficient. The bank, therefore, maintained that the petitioners i.e. respondents herein being not eligible to continue in their ser vices, the decision to terminate their services was legally valid. The guidelines dated 22.6.1998, on which the appellant bank placed reliance laid down the following requirements as the eligibility conditions for appointment a s Guard:- a) Educational Qualification :- minimum Class VIII passed upto under matriculate b) Character:- Good and above. c) Medical Standard:- Category’A’. The candidate should not be a permanent law medical category. d) The candidate should not be a physically handicapped. e) Experience/Rank :- Havildar or below f) Age :- 45 years or below on the date of interview. g) The candidate should be an Ex-servicemen. It was contended by the bank that the bank Guards are generally recruite d from the list of names forwarded by the Zila Sainik Board/ Employment Exchange . It was also contended that the names of the petitioners were forwarded without considering their trade/skill level, medical fitness and also without ascertain ing as to whether they were ex-servicemen. The writ petitions were disposed of by common judgment and order dated 2 2.9.2005 holding that the bank’s decision to terminate the petitioner’s services in the particular facts and circumstances of the case, required reconsideration . Referring to the aforesaid guidelines dated 22.6.1998, it was observed that th e petitioners having been recruited prior in point of time when the said guideli nes was not in force, it would be unfair to terminate the services of the petiti oners taking recourse to the said guidelines. However, it was also observed that the decision to regularise the services of the petitioner’s would finally rest with the bank and that no mandamus could be issued to that effect. The operative part of the said judgment and order is reproduced below. In the above view of the matter, I am of the opinion that the Bank’s d ecision to terminate the petitioners’ services on the aforementioned grounds in the particular facts and circumstance of the case requires reconsideration. The petitioners having been recruited at a point of time when prima facie the guidel ines embodied in the letter dated 22.6.1998 were not in force, the application t hereof to disqualify them at this distant point of time appears to be unfair. Th is is more so when it is not the Bank’s stand vis-a-v-s the petitioners that the ir retention in service would result in compromising with the level of performan ce required of its Security Guards. However, as the decision to regularise the s ervices of the petitioners would finally rest with the Bank, this Court is not i nclined to issue any writ of mandamus to the said effect. In the above view of the matter, the petition is closed with a direction to the respondent No.4, Dy. General Manager, Zonal Office, State Bank of India, Dhankheti, Shillong, to re-examine the issue in the light of the above observat ions and take a final decision in this regard. Needless to say that till the exe rcise as indicated hereinabove is complete, the petitioners’ services as on date would not be disturbed. No costs. 5. On being directed to re-consider the petitioner’s case for regularisatio n of his service, the respondent-bank, in its inter-departmental communication, dated 19.06.2006, conveyed to the effect that as per the instructions received f rom the Head office of the respondent bank, the service of the petitioner would stand terminated with effect from 30.06.2006. The inter-departmental communicati on aforementioned further stated that the competent authority would pass necessa ry orders. The petitioner, on coming to know about the decision of the responden t bank, once again, came to this Court with WP(C) 157(SH)/2006 challenging the s aid decision of the respondent bank. Two more persons, who were similarly situat ed as the present petitioner also filed a writ petition, which gave rise to WP(C ) No.160(SH)/2006. The grievances of these petitioners were that their cases ha d not been considered in terms of the directions, which had been issued by the j udgment and order, dated 22/9/2005, passed in W.P(C) No.73 (SH)/2003. In the sec ond writ petition, namely, WP(C) No.157(SH)/2006, what the stand of the responde nt bank was is clearly discernible from the observations, made at para 14, 15 an d 16 of the judgment and order, dated 23.09.2009, passed in WP(C) No.157(SH)/200 6, which read as under:- The appellant bank in their counter affidavit, while justifying their action t owards termination of services of the petitioners, has reiterated their stand in the earlier round of litigation. In the counter affidavit filed by the appellan t bank, it has been contended that the petitioners were appointed as Badli Guard , purely on temporary basis without judging their suitability etc. As regards th e service benefits conferred on the petitioners, it was contended that merely be cause certain benefits had been extended to the petitioners, that by itself will not entitle the petitioner to get regularisation of their services. According to the appellant bank, the petitioners failed to qualify in the select ion conducted in 2000 and they also did not fulfil the eligibility criteria as l aid down in the bank’s instruction vide letter dated 19.10.1987, based on the Go vernment of India, Ministry of Personnel, PG and Pension’s letter No.36035/5/ATS -ESTT(SCT) dated 27.10.1986. As regards the circular letter datedf 22.6.1998 ref erred to above is concerned, it was contended that the said letter was a mere re iteration of the earlier circulars. So far as the petitioners in W.P(C)No.157(SH)/2006 is concerned, it wasd contend ed that he was over aged at the time when he was considered for appointment. It was also contended that he was not an ex-servicemen. Referring to the particular selection conducted in the year 2000 it was stated that the petitioners in that case was not found suitable and that he was also ineligible for appointment as Bank Guard. In paragraph 12 and 17 of the counter affidavit, the appellant bank indicated various letters/guidelines covering the case of the petitioners with t he plea that the petitioners having failed to qualify themselves in the eligibil ity/suitability test, there was no question of regularisation of their services. 6. By the judgment and order, dated 29/8/2007, as the petitioner’s writ pet ition, namely, W.P(C) 157(SH)/2006, was disposed of by setting aside the order o f termination of service of the petitioner with further direction to the respond ent bank to regularise the petitioner’s service, the respondent bank preferred w rit appeal, which gave rise to Writ Appeal No. 36(SH)/2007. This writ appeal ca me to be subsequently registered as Writ Appeal No.67/2008. Similar writ appeals were filed by the other writ petitioners, which gave rise to Writ Appeal Nos.37 (SH)/2007 and 38(SH)/07, and these two writ appeals came to be, later on, regist ered as Writ Appeal Nos.66 and 64/2008 respectively. Examining as to what actual ly had been directed by the Court in the first round of litigation in WP(C) No.7 3(SH)/2006, the Division Bench, in its judgment and order, rendered in Writ Appe al Nos.36(SH)/2006, 37(SH)/2006 and 38(SH)/2007, observed as under: It appears that the learned Single Judge has issued the direction for regular isation primarily on the ground that in the earlier round of litigation, the pet itioners were held to be eligible for regularisation and that the appellant did not consider the case of the petitioners as per the direction of this court in t he said earlier round of litigation. On a careful reading of the judgment in the earlier round of litigation, what has transpired is that the learned Single Jud ge expressed some doubt regarding applicability of the guidelines dated 22.6.199 8. It was observed that since the said guidelines were not in existence when the petitioners were appointed in the temporary services of the bank, prima facie, the guidelines embodied in the letter dated 22.6.1998 would be inapplicable. While issuing direction to reconsider the case of the petitioners, it wa s particularly observed that the decision to regularise the services of the peti tioners would finally rest with the bank and that the court would be disinclined to issue any writ of mandamus to that effect. Thus, the learned Single Judge wh ile holding that the guidelines embodied in the letter dated 22.6.1998 being not in force when the petitioners were appointed to the bank’s service as Security Guard, same may not be applicable to their case but there was no conclusion as s uch to that effect. It is in the above context, the stand of the appellant bank in their cou nter affidavit that particular guidelines dated 22.6.1998 was the reiteration of the earlier guidelines issued way back in 1986, 1987, 1990 1991 etc. will have to be understood. The said letters/circulars had been annexed to the counter aff idavit filed by the respondents-appellants. The letter dated 19.10.1987 is on th e definition of the term Ex-servicemen and to ensure that thenceforth all cand idates satisfying the new definition be extended the benefit of reservation/conc ession available to the ex-servicemen. The said letter referred to the earlier l etter dated 29.7.1987, by which all the authorities of the bank were intimated a bout the Govt. of India’s notification dated 15.12.1979, 27.10.1986 and 27.3.198 7, relating to the definition of ex-servicemen. 7. Whether, in the facts and attending circumstances of the case, any direc tion to regularise the service of the present petitioner, who was appellant, and similar other persons could have been passed by the Court, in WP(C) No.157(SH)/ 2006 and 160(SH)/2006, the Division Bench held that no direction, as contained i n the judgment and order, dated 29.08.2007, could have been issued warranting th e respondent bank to regularise the service of the petitioners. The relevant obs ervations, made by the Division Bench, in its decision, dated 29.08.2007, read a s under :- From the materials on record, what has transpired is that the petitioners were appointed as Body Guards without any formal order of appointment. It is true th at they continued to serve the bank as such for fairly a long period. However, t hey failed to qualify in the test conducted by the bank in the year 2000. Even t hereafter also, they had been continuing in their services till the first decisi on to terminate their services was conveyed in the year 2003, when they filed th e aforementioned writ petitions. The writ petitions were disposed of by the afor ementioned judgment and order dated 22.9.2005 with the above quoted direction. T hereafter, the bank considered the case of the petitioners and took a decision n ot to continue their services. However, the reasons for their discontinuation is not discernible as the writ proceeding was initiated on the basis of a inter-de partmental communication. As per the said communication, the final order was to be issued by the higher authority. Possibly the said final order would have cont ained the detail reasons for termination of the services of the petitioners. The question which arises for consideration is as to whether in the give n facts and circumstances, it was justified to issue a direction to regularise t he service of the petitioners without ascertaining as to whether they fulfil the eligibility criteria and suitability. The learned Single Judge has issued the d irection on an interpretation of the earlier judgment and order to the effect th at in the said judgment and order, the petitioners were held to be eligible for appointment as Security Guards and that the appellant bank did not consider the case of the petitioners as per the said directions of this court dispassionately , but proceed with the matter with the design to terminate the services of the p etitioners at any cost. However, on a close scrutiny of the materials on record, such action on the part of the appellant bank is not discernible. Merely because the impugned communication did not reflect anything about the ma nner and method of consideration of the case of the petitioners in terms of the said judgment, in our considered view, it would not be justified to issue any di rection to regularise the services of the petitioners, de hors their eligibility and suitability, that too in a post like Security Guards. In fact, in the earli er round of litigation, the learned Single Judge made it clear that the ultimate decision would rest on the bank authority and that the writ court exercising it s power of judicial review under Article 226 of the Constitution of India would not issue any direction towards regularisation of the services of the petitioner s. As to how their cases was considered and methodology adopted by the bank towa rds such consideration is not available, in the absence of the final order which was yet to be passed by the higher authority. In view of the above, we are of the considered opinion that the directio n as contained in the impugned judgment and order dated 29.8.2007 could not have been issued directing the appellant bank to regularise the services of the peti tioners. 8. Referring to a large number of decisions, including Secretary, State of Karnataka and others Vs. Umadevi (3) reported in (2006) 4 SCC 1, the Division Be nch finally concluded and directed as under :- For all the aforesaid reasons, we are of the considered opinion that the impug ned common judgment and order dated 29.8.2007 passed by the learned Single Judge in W.P(C) No.157(SH)/2006, W.P(C) No.160(SH)/2006 and W.P(C)161(SH)/2006 is not sustainable in law and liable to be interfered with which we accordingly do. Th e matter shall now go back to the competent authority of the bank to take a fina l decision consistently, taking into account the order passed by the learned Sin gle Judge in the earlier round of litigation. The bank authority shall pass a sp eaking order so that no room is left for any controversy relating to the eligibi lity and suitability of the petitioners for appointment as Security Guards, In o ther words, the speaking order shall deal with all the aspects of the matter hig hlighted in the earlier round of litigation and in this judgment and order. Till the speaking order is passed by the competent authority of the bank consistently with the observations made above, the petitioners shall continue i n their services and their future employment and continuation in service will de pend upon the speaking order to be passed by the said authority of the bank. 9. From a bare reading of what has been observed and directed above, it bec omes clear that the respondent bank was directed to consider the case of the pre sent petitioner and those of others, who had preferred appeal for appointment as Security Guard. 10. After disposal of the writ appeal, the respondent bank has, now, passed the order, dated 5/1/2010, whereby it has terminated the temporary engagement of the petitioner with effect from 05/01/2010. The reasons, assigned for terminati on, are same as were recorded, at the initial stage, by respondent bank in its l etter, dated 06/03/2002, namely, (i) that the present petitioner is over-aged, ( ii) he is under-qualified and (iii) that he is not an ex-serviceman. The fact th at the petitioner is not an ex-serviceman in terms of the notification, dated 27 /10/86, issued under the Ex-servicemen (Redemption in Central Civil Service and Post) Amendment Rules, 1986, is not in dispute. As far as the petitioner is conc erned, he has asserted, in para 6 of the writ petition, that he has passed class VIII and this assertion of the petitioner has not been disputed by the responde nt bank. The prescribed qualification, according to the guidelines issued, on 01 .08.99, by the respondent bank is that the candidate must be fifth standard pass . When the petitioner has, admittedly, passed class VIII, he is, as far as the a cademic qualification is concerned. To be, however, eligible for consideration f or regular appointment, according to the guidelines, issued, in this regard, a c andidate must not exceed 45 years of age. 11. In the case at hand, though the petitioner was engaged as a Security Gua rd by the respondent bank in the year 1995, the fact remains that the petitioner ’s employment was inherently temporary in nature. The fact that the petitioner’s engagement was not against any permanent post was also clearly known to the pet itioner inasmuch as the petitioner had sought for, and had, indeed, received an order for regularisation of the petitioner’s service in WP(C) No.157(SH)/2006, t hough this direction as already indicated above has been interfered with. 12. It is, thus, clear that when the petitioner was considered for recruitme nt in the year 2000, it was a fresh recruitment so far as the petitioner was con cerned. In the recruitment process conducted in the year 2000, was the petition er qualified in terms of the criteria fixed by the guidelines issued on 01.08.99 ? As the petitioner’s date of birth is 30.06.1953, he was obviously older than 4 5 years, when the exercise of recruitment of Security Guard was undertaken by th e respondent bank in the year 2000. Thus, the petitioner was not eligible for ap pointment as Security Guard. In such circumstances, termination of the petitione r’s service, which was, otherwise, inherently temporary in nature, cannot be sai d to be arbitrary or contrary to law. Situated thus, this Court does not find th at the impugned order, dated 05/01/2010, passed by the respondent bank terminati ng petitioner’s temporary engagement as Security Guard with effect from 05/01/20 10 calls for interference by this Court in exercise of its powers under Article 226 of the Constitution of India. 13. From a careful and patient reading of the facts noted, observations made , and the directions given, by the Division Bench in the said writ appeals, what becomes abundantly clear is that the petitioner’s appointment, as Security Guar d, was without any formal order of appointment. There was no regular selection o r recruitment of the petitioner as Security Guard of the respondent bank. Though the petitioner continued to serve the respondent bank for a fairly long period of time, he failed to qualify in the test conducted by the respondent bank in th e year 2000. However, the petitioner was continued to be engaged by the responde nt bank till the respondent bank decided to terminate the petitioner’s service i n the year 2003 when the first writ petition, namely, WP(C) 157(SH)/2006, was fi led. Though the direction for regularisation of the petitioner’s service was giv en in the second writ petition, the same has been interfered with and set aside in the said writ appeal. The respondent bank was, therefore, required to conside r the petitioner’s case provided that the petitioner, otherwise, satisfied the p rescribed criteria, such as, age, qualification, etc. As the petitioner was over aged at the time of the said recruitment process, he could not have been appoint ed on regular basis. The termination of his engagement by the respondent bank ca nnot, therefore, be treated as illegal. 14. In the result and reasons discussed above, this writ petition is not adm itted and the same accordingly stand dismissed. 15. No order as to costs.