J&K Bank is an instrumentality of state

HC allows J&K Bank to open link, proceed with selection process but not to publish final select list

30/06/2020

Srinagar, Jun 29: Justice Ali Mohammad Magrey of J&K High Court Srinagar Wing while hearing a petition of candidates aspiring for their consideration in the selection process commenced by the Jammu and Kashmir Bank Limited (the Bank) pursuant to notification no.HR-Rectt-2018-1564 dated 06.10.2018 for filling up the posts of Probationary Officers and Banking Associates, challenges the notice dated 15.04.2020 issued by the Bank whereby it has notified that the selection process conducted for the posts stands cancelled, and the fresh Recruitment Notice no.JKB/HR-Rectt-2020-27 & 28 dated 01.06.2020 issued by the Bank inviting applications for recruitment to 350 posts of Probationary Officers & 1500 Banking Associate, allowed the J&K Bank to open the link and proceed with the selection process. Court further ordered that the final select list of candidates shall not be drawn, issued or published by the Bank/respondents unless orders in that regard are sought from the Court if the matter is not finally decided till then and remains subjudice before the Court.
Today when the matter was listed, the respondents of the J&K Bank Ltd. filed their objections to the writ petition. They also filed CM no.2161/2020 for vacation of the direction dated 15.06.2020 under which the respondent Bank was directed to postpone the availability of the internet link for registration of candidature by the prospective candidates for the posts of Probationary Officers and Banking Associates.
When this case was taken up for consideration on 26.06.2020, Mr. D. C. Raina, Advocate General, appeared before the Court pursuant to the Court's request made vide order date 15.06.2020. He submitted that the issue whether the Jammu and Kashmir Bank Limited is a State within the meaning of Article 12 of the Constitution does not arise because the Bank has been declared as a public authority in terms of the erstwhile State Administrative Council (SAC) Decision no.148/20/2018 dated 22.11.2018. He further submitted that pursuant to the said SAC decision, the Jammu and Kashmir Right to Information Act, 2009 and CVC guidelines stand applied to the Bank and it was also made accountable to the State Legislature. The learned Advocate General in this regard produced photocopy of a communication purported to have addressed by the Principal Secretary to Government, Finance Department, to the Chairman/CEO of the Bank informing him about these decisions of the SAC. This communication does not bear any number and date. However, the Under Secretary to Government, Finance Department, has endorsed copies thereof to the Private Secretaries to the Governor, Advisor (S) and the Chief Secretary, under endorsement no.FD/BKG/2019/13 dated 12.02.2019 which indicates the round about date of the aforesaid communication. Mr. Sunil Sethi, Senior Advocate, representing respondents 1 and 2, did not contest this position.
Justice Ali Mohammad Magrey observed that having regard to the plea of the writ petitioners that the Bank was a State within the meaning of Article 12 of the Constitution, amenable to the writ jurisdiction of this Court, and the above facts brought to the notice of the Court by the Advocate General, admitting the plea of the writ petitioners, nothing more needs to be done on the issue. Consequently, the Full Bench decision of this Court in Firdous Ahmad Tanki v. the J&K Bank Ltd., 2006(1) S. L. J. 1, is no more attracted to the Bank. The issue is, therefore, deemed to be not arising any more and closed as such.
Sr. Adv DC Raina Advocate General simultaneously argued that now that the Central Administrative Tribunal Act, 1985 (CAT Act) is applicable to the Union Territory of Jammu and Kashmir, and the Bank having been declared as a Public Authority, this Court does not have the jurisdiction to entertain this writ petition. The learned Advocate General in this behalf referred to the Preamble and various provisions of the CAT Act, including Sections 2, 14 and 28 thereof. On this, the learned senior counsel for the petitioners sought time till today to argue the case on the point of jurisdiction of the Court to entertain the writ petition.
Sr. AdvJehangir Iqbal produced a copy of Government order no.377-F of 2019 dated 04.07.2019 on the subjects of "(i) Streamlining the procedure for procurement of Goods and Services and award of contracts by Public Sector Undertakings /Autonomous bodies /Societies; (ii) creation of posts and regulation of recruitment in Public Sector Undertakings/ Autonomous bodies/Societies." This Government order contains certain directions to be observed by the Public Sector Undertakings / Autonomous bodies /Societies. In the last para, the communication reads: "These directions shall come into effect immediately with respect to all Public Sector Undertakings/Autonomous Bodies/ Societies, including those listed in Annexure A". In the annexure 'A' to the said Government order, J&K Bank Ltd., figures at serial no.1 of the list of Public Sector Undertakings/Autonomous Bodies/ Societies. This all is referred to at this stage herein for the limited purpose to show that the J&K Bank Limited has been deemed to be a Public Sector Undertaking/Autonomous Body /Society and State within the meaning of Article 12 of the Constitution. This issue stands already concluded and settled on the statement made by the learned Advocate General on the previous date, narrated hereinabove. However, the above supporting fact brought to the notice of the Court today is recorded herein.
Justice Ali Mohammad Magrey observed that so far as the second issue raised by the Advocate General on the previous date of hearing, that since the CAT Act is applicable to the Union Territory of Jammu and Kashmir, and the Bank having been declared as a Public Authority, this Court does not have the jurisdiction to entertain this writ petition, this Court heard the arguments in this regard in some detail. The orders in that regard are reserved.
Justice Ali Mohammad Magrey observed that the argument raised on behalf of the Advocate General does not seem to be supported by Section 14 of the CAT Act. However, the issue would be dealt with in detail in the order.
Sr. Adv Sunil Sethi appearing for the J&K Bank has strenuously pressed for disposal of CM no.2161/2020 & 2160/2020. As mentioned earlier, these civil miscellaneous petitions have been filed by respondents 1 and 2 for vacation of the direction dated 15.06.2020 issued to the respondent Bank to postpone the availability of the internet link for registration of candidature by the prospective candidates for the posts of Probationary Officers and Banking Associates.
Justice Ali Mohammad Magrey observed that in the CM so filed by respondents 1 and 2, it is, inter alia, stated that the functioning of the respondent Bank is suffering for non-availability of sufficient staff on the advertised positions. It is further stated therein that in absence of such staff, the Bank is not able to provide adequate banking service to its customers, and that, resultantly, loss would be caused to the customer confidence and business of the Bank.
Justice Ali Mohammad Magrey observed that the direction dated 15.06.2020 was passed by this Court with a view to securing the interests of the petitioners as well as to avoid any future inconvenience to the prospective candidates. Now the interests of the respondent Bank itself have been placed before the Court for its consideration. This Court is of the view that interests of the Bank are of paramount importance and that delay in registration of candidature by the prospective candidates may prolong the selection process which may be injurious to the interests of the Bank. This Court would not wish the Bank to be put to any loss or injury by operation of any order of this Court. At the same time, the Court has to ensure that the writ petitioners are not non-suited.
However, there is no denying the fact that the petitioners have only participated in the selection process. The law being that mere participation in the recruitment process does not confer any right of appointment on a candidate, the Court is of the opinion that even if candidature of prospective candidates pursuant to the fresh notification dated 01.06.2020 is registered and the selection process is allowed to be completed upto a certain stage, it would not confer any right of appointment on such candidates. Whether the ultimate selection process should be completed pursuant to the earlier advertisement notification or the subsequent notification would naturally be dependent on the final decision in the writ petition.
Justice Ali Mohammad Magrey observed that at this stage, therefore, the Court is of the view that it would be appropriate to allow the Bank to open the link and proceed with the selection process. However, the final select list of candidates shall not be drawn, issued or published by the Bank/respondents unless orders in that regard are sought from the Court if the matter is not finally decided till then and remains subjudice before the Court.

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