Sonia vs Oriental Insurance Co. Ltd. & Ors

3. A writ petition was filed by the appellant for a direction upon the respondent to consider the case of the appellant for promotion to the cadre of Assistant Administrative Officer (AAO) against the vacancy reserved for Scheduled Tribe candidates. A further direction was also prayed by the appellant to the extent that the respondents should keep one vacancy reserved for the appellant who had competed and was found successful as a candidate from Scheduled Caste reserved category and for other incidental reliefs.

4. The facts of the present case may briefly be stated as follows:

5. The appellant who is a Scheduled Caste by birth has been working as Assistant [T] in the Oriental Insurance Company on and from 2nd January, 1997. Applications were invited from eligible and desirous employees for appointment to the post of Assistant Administrative Officer in terms of the promotional policy of the respondents. There are two modes of appointment to the post of Assistant Administrative Officer, namely, (i) promotion from the departmental candidates; and (ii) by direct recruitment through competitive examination. In the said promotional policy, pre-examination training to Scheduled Caste/Scheduled Tribes/Other Backward Classes candidates who are eligible to appear in the aforesaid test has also been allowed. It is also evident from the policy that if no eligible candidate is available in a particular category, an exchange of vacancy between Scheduled Caste and Scheduled Tribes categories can be allowed to the extent of non-availability of eligible candidates in a particular category. Advertisement was published on 30th October, 2003 and accordingly the appellant applied on the basis of the said advertisement to the post of Assistant Administrative Officer. There were in all five vacancies out of which one was reserved for candidates belonging to the Scheduled Tribes category and both Scheduled Caste and Scheduled Tribes candidates were eligible to compete for this reserved vacancy. The appellant was permitted to undergo a pre-examination training between 1st December, 2003 to 19th December, 2003 which was imparted to Scheduled Caste and Scheduled Tribes employees in accordance with the aforesaid promotional policy. The appellant was permitted to appear for the competitive examination held on 21st December, 2003 against the vacancy reserved for candidates belonging to Scheduled Tribes category. The name of the appellant appeared at Sl.No.23 in the list of successful candidates. Since her name had appeared in the list of successful candidates, the appellant claimed that she was entitled to be called for interview and considered for selection. A notice dated 27th February, 2004 was issued by the respondents that no exchange of vacancies between Scheduled Caste and Scheduled Tribes categories could be allowed even if no eligible candidate was available under either of the two categories in view of OM No.36012/17/2002-Estt.(Res) dated 6th November, 2003, clarifying that it was not permissible to fill a post reserved for Scheduled Tribes by a Scheduled Caste candidate or vice versa by exchange of vacancies between the two. Feeling aggrieved by refusal of the authorities to empanel the appellant for the interview, the aforesaid writ petition was filed before the High Court which, as noted herein earlier, was dismissed with the observation that no legal right of the appellant had been infringed for not empanelling her as a successful candidate to appear before the Interview Board set up by the respondents.

6. Thereafter, correspondence was exchanged between the appellant and the respondent and the Letter of Credit was amended and payment "at sight" was substituted by the words "230 days from the shipment date". On the basis of the amended Letter of Credit, the payment was, thereafter, payable on or before 10th April, 2007. The amendment of the terms of Letter of Credit was informed to the bankers of the respondent which was accepted by the respondent as well. The issue regarding the quality of goods remained undecided although an inspection report was submitted by SGS India Pvt. Ltd. with the concurrence of the respondent. Inspite of various steps taken by the appellant and promises made by the respondent, no effective step was taken to resolve the dispute regarding quality of the goods and hence the application under Section 9 of the Act was filed by the appellant to stop release of payment under the Letter of Credit without first resolving the issue regarding the quality of goods of the second consignment supplied by the respondent to the appellant. Therefore, in the application for injunction, it was pleaded that the act of the respondent for not resolving the dispute on the quality of goods in the second consignment amounted to fraud as the respondent had dishonestly and with ulterior motive not resolved the dispute as raised by the appellant and in any event, an order of injunction should be granted, otherwise, it would not be possible for the appellant to recover the money released under the Letter of Credit as the respondent is a foreign company from Iran and has no assets in India.

8. As noted herein earlier, the order of status quo was passed by the learned Single Judge of the High Court on the application for injunction filed under Section 9 of the Act at the instance of the appellant on 9th April, 2007, and by the said order, the interim order of status quo was granted till 30th April, 2007 and the same was extended from time to time from 23rd April 2007 till 17th May, 2007. Thereafter the matter was directed to appear on 16th May, 2007 and heard by the learned Single Judge on 17th May, 2007 and interim order of status quo was extended till 25th June, 2007. As noted herein earlier, the learned Single Judge by order dated 5th June, 2007 vacated the interim order of status quo granted earlier against which an appeal was preferred by the appellant before a Division Bench of the High Court of Calcutta which dismissed the appeal and affirmed the order of the learned Single Judge vacating the interim order of status quo.

8. In view of the above, we are of the view that the High Court was not justified in dismissing the writ petition of the appellant only on the ground that in view of Office Memorandum dated 6th November, 2003, no legal right of the appellant was infringed. Since, we have already held that the Office Memorandum will not be applicable in the case of the appellant and to the pending process of selection, we are of the view that the appellant would be entitled to be empanelled to appear before the Interview Board for selection to the post of Assistant Administrative Officer.

9. For the above reasons, we set aside the Judgment of the High Court and allow this appeal. The respondents are directed to call the appellant for interview before the Interview Board for selection to the post of Assistant Administrative Officer and if she is selected by the Interview Board, she should be promoted or appointed to the post of Assistant Administrative Officer. There will, however, be no order as to costs.

18. Let us now consider the other exception, namely, case where allowing encashment of an unconditional Bank Guarantee or a Letter of Credit would result in an irretrievable harm or injustice to one of the parties concerned. In our view, irretrievable injury was not caused to the appellant by a refusal to grant an order of injunction restraining the encashment of the Letter of Credit for two reasons :-

19. For the reasons aforesaid, we do not find any merit in this appeal. The appeal is thus dismissed. We may, however, make it clear that whatever findings have been arrived at by us in this appeal or by the High Court while dealing with the prayer for grant of an interim order of injunction, shall not be taken to be final as to the disposal of the application for injunction by the High Court. There will be no order as to costs.