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2009 DIGILAW 568 (JK)

L. I. C. Of India v. Rehmat Ullah

2009-11-19

BARIN GHOSH, GH.HASNAIN MASSODI

body2009
1. In the writ petition, the petitioner contended that, in the matter of selection, having regard to what has been mentioned in the employment notice, marks obtained in the written examination can alone be looked at. The fact remains that, after the petitioner appeared in the written examination, he was invited to appear at the interview and he did appear at the interview and participated in the selection process through such interview. The aggregate marks obtained by the petitioner in written examination and interview was 50 out of 100. In the writ petition, the petitioner contended that he has obtained better marks in the written examination than the respondents 4 to 6 to the writ petition, but respondents 4 to 6 were selected, whereas he has not been selected. In order to show that interview is also a part of the selection process, the appellants before us brought to the notice of the learned Judge, who dealt with the writ petition, the circular of the appellants dated November 27, 1979. Looking at the said circular, the learned Judge noticed that, insofar as the post of peon is concerned, there is no mandate of taking written examination and, accordingly, the selection for the post of peon should be concluded on the basis of marks obtained in the interview. The learned Judge found as a fact, to which there appears to be no dispute that, whereas the petitioner received much less marks than the respondents 4, 5, and 6 in written examination, he got slightly more marks in the interview. There appears to be no dispute at this stage that, in aggregate, the petitioner obtained less marks than respondents 4, 5 and 6. Because the petitioner got more marks in interview and that was the mode of selection prescribed in the said circular of the appellants dated November 27, 1979, the learned Judge, while dealing with the writ petition, allowed the same by directing the appellants to appoint the petitioner also. In the meantime, as noted in the judgment and order under appeal, respondents 4, 5, and 6 were deleted from the array of parties to the writ petition, as the petitioner failed to take steps for effecting service upon them. 2. In the meantime, as noted in the judgment and order under appeal, respondents 4, 5, and 6 were deleted from the array of parties to the writ petition, as the petitioner failed to take steps for effecting service upon them. 2. In the present appeal, it is the contention of appellants that, inasmuch as the writ petitioner responded to the advertisement, which provided that writ petitioner would be required to sit in the written examination, and inasmuch as, after the petitioner appeared in the written examination, he was invited to appear before the Interview Board, and he having had participated therein, cannot turn around and contend that the advertisement was bad, for, the same held out that the selection process includes written examination in addition to interview. 3. We see much force in such contention. The petitioner having had taken a stand in the manner he has acted, as depicted above, he cannot be permitted in law, to turn around and contend that the very advertisement itself was bad. 4. While the appeal was pending, having had taken notice that the employment notice was issued for the purpose of preparing a panel, the Court directed the appellants to submit an affidavit to indicate until when the panel was kept alive and whether, during the validity of the panel, any further vacancy cropped up after respondent no. 5 was offered employment. In terms thereof, an affidavit has been filed, which suggests that the panel was prepared on December 12, 1991, which was to remain in operation for one year, but was extended for a further period of one year and, accordingly, the same was valid until December 12, 1993. It has been contended that during the validity of the panel, three vacancies cropped up, of which one was available for a general candidate. Whether this vacancy, which cropped up, was or was not supplied by a candidate in the panel was, however, not mentioned in the supplementary affidavit. A copy of the panel has been produced before us. The same is kept with the records. Sh. Purshotam Kumar is next to Sh. Dev Raj in the said panel. According to the panel, he had got 51 marks in aggregate. Learned counsel appearing on behalf of appellants stated that this Purshotam Kumar has supplied the same vacancy, which was available for general candidates. 5. The same is kept with the records. Sh. Purshotam Kumar is next to Sh. Dev Raj in the said panel. According to the panel, he had got 51 marks in aggregate. Learned counsel appearing on behalf of appellants stated that this Purshotam Kumar has supplied the same vacancy, which was available for general candidates. 5. Learned counsel for the respondent-writ petitioner has drawn our attention to the contentions raised by him in the reply filed by him to the supplementary affidavit, where it has been stated that, in the facts and circumstances of the case, two vacancies for Scheduled Caste could not be said to be available. One of them should be said to be available for general candidates as per the employment notice. This aspect of the matter had and has no connection whatsoever, with the contentions as were raised in the writ petition, decided by the judgment and order under appeal and assailed in the present appeal. Further, having regard to the panel and the posts supplied as well as in the absence of the 100 point roster, it would not be possible to hold that the contentions of the appellants has any substance. 6. In the circumstances, while we allow the appeal, set aside the judgment and order under appeal, and dismiss the writ petition, we permit the petitioner to take such recourse to law to establish his contention that there was one more vacancy available during the period, the panel was alive for being supplied by general candidates, including the petitioner. Let a copy of the panel kept with the records, be prepared and handed over to the learned counsel for the writ petitioner-respondent.