Letters Patent Appeal No.788 OF 2005 ----- In the matter of an appeal under Clause 10 of the Letters Patent Appeal of the High Court of Judicature at Patna. ------ 1. SUSHIL SHARAN SINHA, SON OF SRI SHAMBHU SHARAN SINHA, R/O MOHALLA-TATMA TOLI SHANKAR CHOWK POLICE STATION KHAZANCHI HAT DISTRICT-PURNIA. 2. SAGAR KUMAR SAHA, SON OFSRI DAYA LAL SAHA, R/O MAIN ROAD KASBA POLICE STATION KASBA DISTRICT- PURNIA. 3. UTPAL KUMAR SON OF LATE RABINDRA KUMAR GHOSH, R/O NAYA TOLA, LINE BAZAR POLICE STATION KHAZANCHI HAT DISTRICT-PURNIA. 4. BASANT KUMAR SINHA, SON OF SRI MUNESHWAR PRASAD SINAH, R/O GANDHI NAGAR ARBIND SOCIETY POLICE STATION KHAZANCHI HAT DISTRICT PURNIA. 5. BISHWESHWAR BANERJEE, SON OF SRI NARAYAN BANERJEE R/O RAUTARA POLICE STATION RAUTARA DISTRICT KATIHAR. 6. SANJAY KUMAR SINHA SON OF LATE SHIVA NATH PRASAD R/O PAKKIGALI NEAR CHAITI DURGA ASTHAN BATWAN BAZAR POLICE STATION KASHIM BAZAR DISTRICT MUNGER. ….Appellants Versus 1. THE LIFE INSURANCE CORPN.OF INDIA THROUGH ITS CHAIRMAN, LIC OF INDIA YOGASHEMA, JEEVAN BIMA MARG, P.B.NO.19953, MUMBAI-400021. 2. THE CHAIRMAN, LIC OF INDIA GOGASHEMA, JEEVAN BIMA MARG, P.B. NO.19953, MUMBAI 400021. 3. THE ZONAL MANAGER, LIC OF INDIA, EASTERN ZONE HINDUSTAN BUILDING, 4, CHITRANJAN AVENUE KOLKATA- 700072. 4. THE SENIOR DIVISIONAL MANAGER LIC OF INDIA BHAGALPUR DIVISION PRIYADARSHNI, SAKHICHAND GHAT ROAD, NAYA BAZAR BHAGALPUR …..Respondents For the Appellants : Mr. Rajiv Kumar Verma, Sr.Advocate & : Mr. Bindhyachal Singh, Advocate For the Respondents: Mr.Umesh Prasad Singh, Sr. Advcoate, : Mr. Rajiv Ranjan Prasad, :Mr.Prakash Chandra Jha & : Mr. Anjani Kumar Singh ----- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ----- S. K. Katriar & K.K.Mandal,JJ This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the - 2 - petitioners of CWJC 2014 of 2004 (Sushil Sharan Sinha & Ors. Vs. Life Insurance Corporation of India & Ors.), which has been dismissed by order dated 21.04.2005, along with an analogous writ petition(with which we are not concerned), whereby the learned Single Judge has refused to issue a writ of mandamus to appoint the appellants herein to a class III post. 2. A brief statement of facts essential for disposal of the appeal may be indicated. The facts shall be drawn from the writ petition, unless by specific reference to a different proceedings. The respondent-Corporation had issued an advertisement published in a local daily on 15.11.1993 (Annexure- 1), inviting applications for appointment to class III post. The appellants herein were also applicants. After completion of the selection process, the panel was prepared and published on 29.02.1996 (Annexure-2). The appellants are candidates for the general category. In view of the vacancies then assessed at 71 or 72 in the general category, the authorities published a list of 143 candidates of the general category in order of merit. Appellant no.1 was at serial no.134, appellant no.2 was at serial no.123, appellant no.3 was at serial no.136, appellant no.4 was at serial no.125, appellant no.5 was at serial no.112, whereas appellant no.6 was at serial no.110. Candidates of this category have been appointed upto serial no.89 of the merit list. The appellants failed to receive call for appointments leading to the two writ petitions in this Court which have been disposed of by a common order. We are concerned with CWJC No.2014 of 2004 - 3 - alone. The learned Single Judge has held that no candidate below the appellants in the merit list has been appointed. He has also held that there are separate rules in the Corporation to fill up the posts by promotion from amongst its existing employees which are not in conflict with the cases of direct recruitment which are governed by separate rules. Promotion from amongst the existing employees after the present selection process had commenced does not improve the case of the appellants because both belong to two different streams. 3. Learned counsel for the appellants raises a grievance before this Court that once the appellants have found their way to the merit list, it gave rise to legitimate expectation of appointment. The respondent authorities cannot act arbitrarily and are answerable to the Court if such vacancies are not filled up. We have been taken through the relevant rules in an effort to establish that all the persons who figured in the merit list will have to be appointed after taking into account the vacancies which have occurred till the date the merit list is exhausted. He relies on the judgment of the Supreme Court in the case of Shankarsan Dash Vs. Union of India, reported in AIR 1991 SC 1612. He also submits that the appellants have become over-age and, therefore, cannot be considered elsewhere. 4. Learned counsel for the Corporation has supported the impugned action. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The - 4 - admitted position is that the panel was published on 29.02.1996, and a list of general category candidates comprising of 143 names has doubled the number of vacancies. The further admitted position is that altogether 89 persons of this category have been appointed from that panel and nobody junior to the appellants in the merit list has been appointed. The best amongst the appellants is at serial no.110. This is enough to conclude the matter. Law is well-settled by a long line of cases which has been noticed by the learned Single Judge, including Shankarsan Dash’s case (Supra) that no candidate has an indefeasible right to be appointed. The Court can step in if a person junior to the appellants has been appointed. The admitted position is, as has been found by the learned Single Judge, that no person junior to anyone of the appellants has been appointed. There is further justification for this position in law. Determination of the workforce, and the right to fill up the posts, is exclusively an administrative and managerial function. An employer is always entitled to fill up or not to fill up the posts in the case of government and governmental agencies so long a person junior to the aggrieved person has not been appointed. Determination of the workforce depends on the workload of the employer. This Court has always shown reluctance to direct the employers to fill up the posts because it would otherwise amount to interference with their budgets also unless constitutional norms are violated. 6. There is yet another aspect of the matter. 13 years have lapsed since the panel was prepared. It has out-lived its - 5 - utility for various reasons. Requisite number of posts have been filled up and many younger persons must have qualified in the meanwhile. 7. In the result, we do not find any merit in this appeal and is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. ( S. K. Katriar ) ( Kishore K. Mandal ) Patna High Court Dated the 8th December, 2009 HR/NAFR