Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 908 (CAL)

Pradip Biswas v. UNION OF INDIA

2010-08-02

BHASKAR BHATTACHARYA, J.N.PATEL

body2010
Judgment : J. N. Patel, C.J. This appeal is directed against the judgment and order dated 19.7.1999 passed by the learned Single Judge dismissing the petition filed by the appellate writ petitioner assailing the memorandum being BNM 140/02.02.02/99-2000 dated May 25, 1999, that the appellant/petitioner had not fulfilled the minimum requisite qualification as the petitioner did not secure 50% marks in SSC Examination without considering that the authority has selected the petitioner on the basis of the marks obtained in his academic achievements as well as written test and viva voce organized by Institute of Banking Personal (Selection), Mumbai and without considering that the petitioner is a Scheduled Caste and as such his educational and economic interest is to be protected under Article 46 of the Constitution of India. The appellant/petitioner belongs to the category of Scheduled Caste applied for the post of Production Assistant Grade-1 in response to the advertisement for the required posts in Employment News dated 22nd November, 1996. The advertisement came to be published at the instance of Bharatiya Reserve Bank Note Mudran Limited which authorized the Institute of Banking Personal (Selection), Mumbai for selection of the posts of Industrial workmen Staff Grade I and III and that the essential qualification for Grade I posts was SSC Examination with 50% marks and certificate from any recognized ITI/NAC. The said advertisement also provided reservation for the Scheduled Caste, Scheduled Tribe and OBC candidates as per the Government guidelines. It further provided that reservation as per government policy is extended in favour of OBC category, however, no concession in the matter of age educational qualification, examination fees or qualifying standards will be available to the candidates who belong to OBC category. It is the case of the petitioner that he appeared for the written examination for the said post on 2nd February, 1997 and passed the written examination and was required to attend the interview at Shalboni under the District of Midnapore. It is the case of the petitioner that he appeared for the written examination for the said post on 2nd February, 1997 and passed the written examination and was required to attend the interview at Shalboni under the District of Midnapore. Thereafter, on the basis of written test and viva voce, the petitioner was duly selected by the Institute of Banking Personal (Selection), Mumbai which duly communicated to the petitioner vide letter No. BNM No. 2777/01.02.10.PH-II.98-99 dated 23rd July, 1998 have been included in the waiting list of candidates for the post of Grade-I on the basis of educational qualification and work experience and the said waiting list will be operative up to 16th July, 1999 and the petitioner was further advised that the petitioner would be offered appointment in accordance with the position in the waiting list as and when vacancies would arise. The appellant/petitioner was thereafter intimated to appear before the Medical Board for medical examination on 21st August, 1998. Thereafter, police verification of the petitioner was also completed. However, after medical test and police verification, the appellant/petitioner did not get any letter of appointment for a long time. Therefore, the petitioner went to the Office of Bharatiya Reserve Bank Note Mudran Limited at Shalboni and came to know that owing to shortage of marks in school final examination, the appointment could not be issued to him. Therefore, the petitioner made a representation to the Deputy General Manager of the respondent company praying for issuing an appointment letter as he was a Scheduled Caste candidate and the name of the petitioner was recommended by the Institute of Banking Personal (Selection), Mumbai on the basis of educational qualification and work experience declared by the appellant/petitioner. In response to the representation dated 26th April, 1999 and subsequent letter dated 29th May, 1999, the Deputy General Manager of Bharatiya Reserve Bank Note Mudran Limited intimated by letter that owing to non-fulfillment of minimum basic qualification, the candidature of the candidate was not considered further for appointment. Hence, the petitioner moved this Court filing a petition under Article 226 of the Constitution of India. Hence, the petitioner moved this Court filing a petition under Article 226 of the Constitution of India. It was the case of the petitioner that respondents were not justified in refusing to issue a letter of appointment to the petitioner in the post of Industrial Workman Grade-I (Production) as the petitioner was duly selected and his name was placed in the waiting list and further the petitioner being a member of the Scheduled Caste category, it was not proper on the part of the respondent to deny appointment to the petitioner on the basis that he has scored less mark in his school final examination which could have been relaxed as the petitioner has qualified in the written examination and viva voce test. Therefore, the respondents are estopped in not issuing letter of appointment although they promised to offer appointment to the petitioner. The learned Single Judge dismissed the petition observing that the Scheduled Caste and Scheduled Tribe candidates were not entitled to any concession in so far as the essential qualifications are concerned and as the petitioner was having 40.55% marks in the SSC Examination which was less than the basic criteria for selection as mentioned in the advertisement, his candidature is liable to be rejected. The learned counsel appearing on behalf of the petitioner submitted that the appellant/petitioner have not been recommended by the Institute of Banking Personal (Selection) on the basis of educational qualification and work experience pursuant to which the Deputy General Manager of Bharatiya Reserve Bank Note Mudran Limited issued a letter dated 23rd July, 1998 that the respondents were stopped by the principle of promissory estoppel in not offering the letter of appointment to the petitioner after completing the police verification. It is further contended that by the learned counsel for the petitioner that the Article 46 of the Constitution of India provides for relaxation of qualification in case of Scheduled Caste candidate and therefore, if at all the appellant/petitioner was not having the requisite educational qualification considering that he was a Scheduled Caste educational qualification should have been relaxed for such candidate and having not done so, the respondents have acted arbitrarily to the guidelines of Government of India in case of relaxation of qualification of the Scheduled Caste and Scheduled Tribe candidates and in violating Article 14 and 16 of the Constitution of India. The learned counsel appearing for the appellant/petitioner prays relaxation on the following two decisions of the Supreme Court, first being AIR 1976 SCC 376 [Shri Krishan vs. The Kurukshetra University] and the next being AIR 1987 SC 537 [The Comptroller & Auditor General vs. K. S. Jagannathan] On the other hand, the learned counsel for the respondent submitted that the petitioner was selected and recommended for appointment as Industrial Workman Grade-I. Appointment letter could not be issued to him as it was found that the petitioner did not have 50% marks in SSC Examination which was the essential qualification for Grade-I post in addition to certificate from any recognised IT. It is further submitted that the promissory estoppel would not be applicable to the case as the appellant/petitioner did not possess the necessary qualification which came to be noticed by the respondents subsequent to his selection by the Institute of Banking Personal (Selection). It is contended that Article 46 of the Constitution of India would not be attracted in the case of petitioner as this cannot be a case for social injustice. It is submitted that there was no relaxation in so far as educational qualification was concerned which was specifically mentioned in the advertisement and the rules and regulations governing the recruitment also do not provide for the same. It is further contended that the appellant/petitioner cannot claim as of right being appointed in the post mainly because he was selected for such appointment and therefore, in respect of two authorities cited by the learned counsel for the petitioner in support of his case it is submitted that the learned Single Judge has taken into consideration the ratio in the two cases and rightly came to the conclusion that the decision do not help the appellant/petitioner and the mandamus appeal deserves to be dismissed. It is well settled by the catena of decision that the court can only examine if the procedure of selection as adopted is by the rules and regulations governing the same or otherwise illegal or vitiated by arbitrariness and malafides. Further, a candidate included in the panel cannot obtain a mandamus to appoint him unless decision not to appoint him is arbitrary or is by way of discrimination. Further, a candidate included in the panel cannot obtain a mandamus to appoint him unless decision not to appoint him is arbitrary or is by way of discrimination. It is not in dispute that the petitioner is a Scheduled Caste candidate and he has scored 40.55% marks in SSC examination as against the specific essential requirement of the 50% marks in the said examination. The learned counsel for the appellant/petitioner has been unable to place before the court any statutory provisions or rules and regulations governing the said employment which permits relaxation of this essential educational qualification. Therefore, we find that as the appellant/petitioner was not eligible even to qualify for the written examination as he admittedly did not possess the minimum qualifying marks in the SSC examination and thereby was disqualified. It further appears that it was a mistake committed by the respondents in permitting the petitioner to appear for the written examination and thereafter, for interview and he was placed in the waiting list. It is only when the petitioner’s candidature matured for appointment, it was found that he did not possess the necessary qualification that the respondents refused to give him an appointment letter. We find nothing wrong in the respondents rectifying their mistakes which was apparent on the face of the record. Therefore, there is no question of promissory estoppel in so far as the case the appellant/petitioner is concerned and merely because the petitioner happens to be Scheduled Caste, the minimum educational qualification percentage required for the said post in SSC examination could not have been relaxed by the respondents as that would have been contrary to the rules and regulations. Therefore, we do not find that the decision taken by the respondents in not offering appointment to the appellant/petitioner was illegal or vitiated by arbitrariness and malafides. Therefore, the appeal is dismissed. No order as to costs. I agree.