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2007 DIGILAW 185 (ORI)

Jyoti Prakash Nayak v. Union Bank of India

2007-03-15

P.K.TRIPATHY, PRADIP MOHANTY

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JUDGMENT PRADIP MOHANTY, J. — In view of the order No.7 dated 23.10.2006, this judgment is confined only to the maintainability of the writ petition in this Court. 2. In this writ petition, the petitioner challenges the appointment of opposite parties 2 to 12 as Manager (Law) in the middle management grade/scale-II in the Union Bank of India (opposite party No.1) and seeks for a direction to opposite party No.1 to appoint him as Manager (Law). The grievance of the peti¬tioner is that opposite parties 2 to 12 have been appointed ignoring his legitimate claim by awarding less marks to him and by allocating unreasonable percentage of marks in the viva voce test. 3. The case of the petitioner is that opposite party No.1 issued an advertisement inviting applications from eligible candidates for recruitment to the post of Manager (Law) in the Middle Management Grade/Scale-II cadre under the Union Bank Recruitment Project-2004. Pursuant to such advertisement, the petitioner submitted his application in the prescribed manner. Opposite party No.1 issued admit card in favour of the petitioner directing him to appear in the written test scheduled to be held on 30.05.2004 at the Utkal University campus, Bhubaneswar. Along with the admit card, opposite party No.1 also supplied the bro¬chure to the petitioner for getting himself acquainted with the recruitment test. The petitioner appeared in the written test and as his performance was highly satisfactory, opposite party No.1 issued intimation letter directing him to appear for personal interview on 04.11.1994 at Union Bank of India, Nodal Regional Office,Kolkata. Accordingly, the petitioner appeared in the personal interview. According to the petitioner, his performance in the interview was highly satisfactory and he was quite confi¬dent of being selected for appointment.His further case is that opposite party No.1 neither published the result of the interview nor did it communicate the result to the petitioner. However, from reliable sources, the petitioner learnt that opposite party No.1 has given appointment to some candidates. So he made an application to opposite party No.1 under the provisions of Right to Information Act in the prescribed manner seeking information about the result of the recruitment test. However, from reliable sources, the petitioner learnt that opposite party No.1 has given appointment to some candidates. So he made an application to opposite party No.1 under the provisions of Right to Information Act in the prescribed manner seeking information about the result of the recruitment test. Pursuant to such application, the Central Public Information Officer of opposite party No.1 supplied necessary information to the petitioner, from which he came to now that opposite party No.1 relaxed the quali¬fying marks in the written test for S.C., S.T. and O.B.C. candi¬dates and fixed different standard/qualifying marks for candi¬dates belonging to different categories. He also came to know that the personal interview carried 50 marks and the candidates had to secure minimum qualifying marks in the following order :- General — 50 marks S.C. — 22.5 marks S.T. — 22.5. marks O.B.C. — 22.5. marks It was also intimated to the petitioner that relaxation was done allegedly as per the Government guidelines and opposite par¬ties 2 to 12 were selected for appointment applying the said method. 4. Opposite party No.1 in its counter affidavit has stated that the writ petition is not maintainable in this Court since the advertisement itself ousted the jurisdiction of Courts other than those in Mumbai. Clause 8(1) of the advertisement stipulates that any resultant dispute arising out of this advertisement shall be subject to the sole jurisdiction of the Courts situated at Mumbai. Learned counsel for opposite party No.1 vehemently contended that since the advertisement itself contains such ouster clause and the petitioner had accepted the same while making his application under the Union of Bank Recruitment Project, 2004, he cannot be allowed to prosecute this case in this Court. In support of his contention, he placed reliance on Shree Subhlaxmi Fabrics Pvt. Ltd. v.Chand Mal Baradia and others, AIR 2005 SC 2161 ; and Rite Approach Group Ltd. v. Rosobo¬ronexport, (2006) 1 SCC 206 . 5. In reply, learned counsel for the petitioner submitted that the provision made in clause 8(1) of the advertisement cannot take away the jurisdiction of this Court under Article 226 of the Constitution. Nor can it be said that the petitioner having applied for recruitment expressly agreed to all the provi¬sions contained in the said advertisement. 5. In reply, learned counsel for the petitioner submitted that the provision made in clause 8(1) of the advertisement cannot take away the jurisdiction of this Court under Article 226 of the Constitution. Nor can it be said that the petitioner having applied for recruitment expressly agreed to all the provi¬sions contained in the said advertisement. In support of his submission, he relied on L. Chandra Kumar v. Union of India and others, AIR 1997 SC 1125 ; and M/s. P. R. Transport Agency v. Union of India, AIR 2006 Allahabad 23. 6. We have perused the advertisement (Annexure-1). Clause 8(1) of the advertisement reads as follows : “Any resultant dispute arising out of this advertisement shall be subject to the sole jurisdiction of the Courts situated at Mumbai.” Undoubtedly, the above, clause is a part of the advertise¬ment. However, in order to determine the territorial jurisdiction, it is to be seen whether any part of the cause of action has arisen within the State of Orissa. Cause of action has been defined in Mulla’s Code of Civil Procedure as : “The ‘cause of action’ means every fact, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court.” 7. Right to invoke jurisdiction under Article 226 of the Constitution of India to enforce fundamental rights and other legal rights against the State or authority or its agency is a constitutional right. Such right should not be made illusory or unenforceable upon narrow construction of the concept of cause of action. In the present case, the advertisement was published inviting applications for 9 categories of posts. The petitioner at the relevant time was residing at his permanent residence within the State of Orissa and he applied for the post of Manager (Law) from Orissa by giving his permanent address. The petitioner was called to attend written test at Bhubaneswar in the State of Orissa. The Union Bank of India is a nationalized bank having its head office at Mumbai with all India representation. In other words, the Bank has its network of offices and establishments at different places of India, which includes Orissa. The above fact is revealed from the advertisement itself. That means, there is possibility of a candidate to be posted in Orissa. In other words, the Bank has its network of offices and establishments at different places of India, which includes Orissa. The above fact is revealed from the advertisement itself. That means, there is possibility of a candidate to be posted in Orissa. Moreover, the petitioner having attended the written test at Bhubaneswar, it can safely be said that a part of cause of action has arisen in Orissa. According to Article 226(2) of the Constitution of India, which speaks of the territorial jurisdiction of the High Court, the power conferred by Clause (1) of Article 226 to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising juris¬diction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. That apart, the bank with its establishment and network of branches in Orissa is not likely to be prejudiced or to suffer irreparable loss in meeting the legal challenge of the petitioner in this Court. The decisions cited by the opposite parties have no application to this case since the facts involved in those cases are different and they arose out of arbitration case and civil suit. Even otherwise, no advertisement for employment can oust the jurisdiction of the High Court, which flows from Article 226 of the Constitution of India. 8. In view of the above, this Court is of the view that the present writ petition is maintainable. It may now be listed for hearing before the appropriate Bench. P. K. TRIPATHY, J. I agree. Petition disposed of.