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2011 DIGILAW 1993 (PAT)

Chairman-cum-Managing Director v. Manoj Kumar

2011-09-15

BIRENDRA PRASAD VERMA, R.M.DOSHIT

body2011
ORDER : With the consent of the learned advocates, the Appeal is heard and decided today. 2. Feeling aggrieved by the JUDGMENT : and ORDER :dated 27th June 2011 passed by the learned single Judge in above C.W.J.C. No. 19886 of 2010, the respondent Allahabad Bank (hereinafter referred to as ‘the Bank’) has preferred the present Appeal under Clause 10 of the Letters Patent. 3. The matter at issue is the advertisement published by the Bank on 1st December 2009 for recruitment of the Probationary Officers. The advertisement stipulated the required educational qualification as under: “Probationary officer: Graduate in any discipline with minimum 55% marks (for SC/ST/PC-50%) in aggregate from a university recognized by government of India. Computer qualification like diploma in computer operation from NIIT, SSI, Aptech, CME, DOEACC course/certificate (O/A/B/C) level etc. essential.” 4. Pursuant to the said advertisement the writ petitioner, an Other Backward Class person, applied for selection and appointment as Probationary Officer. All applications were made on-line. Pursuant to his application the writ petitioner was called to take the competitive examination. After succeeding at the competitive examination the petitioner was called for interview. At the time of interview his credentials were examined. As the petitioner had secured 54% marks (less than the required 55% marks) his name was not included in the merit list. Feeling aggrieved the petitioner filed above C.W.J.C. No. 19886 of 2010 under Article 226 of the Constitution. 5. The petitioner prayed for declarations to the effect that the Honours and other degrees conferred by the Universities in India are not equal; that the requirement of minimum 55% marks at graduation is arbitrary and irrational; that the candidates passing Honours examination are not similarly situated as the other graduates, and; for a direction to the Bank to appoint the petitioner as Probationary Officer. 6. Admittedly, the petitioner possesses a B.Com degree from Magadh University. At the degree examination he had secured 54% marks (less than the required 55% marks). The only contention raised by the writ petitioner was that as he did B.Com.(Honours) the marks secured in the honours subjects only should be considered for calculation of the percentage. The argument did appeal to the learned single Judge. The learned single Judge has held, “It is common knowledge that student pursuing Honours course focuses on the honours subjects in ORDER :to secure higher marks putting him in higher division/class. The argument did appeal to the learned single Judge. The learned single Judge has held, “It is common knowledge that student pursuing Honours course focuses on the honours subjects in ORDER :to secure higher marks putting him in higher division/class. Such student is required to secure pass marks in subsidiary/pass course subjects.” The learned single Judge also noted that in spite of 54% marks obtained at the degree examination, the petitioner was allowed to take competitive examination and was also called for interview. He, therefore, cannot be non-suited merely because he had secured 0.1% less marks than the required marks. The learned single Judge was of the opnion, “If the terms/conditions of eligibility is pregnant with two possible or reasonable interpretation then the authority would not be justified in interpreting it to the detriment of the successful candidate who was allowed to take interview even after noticing that he had obtained 54% of marks in aggregate by computing all subjects i.e. honours and pass course.” 7. In view of the aforesaid reasoning the learned single Judge has allowed the writ petition and has directed the Bank to consider the case of the petitioner for appointment on the post of Probationary Officer treating him educationally qualified having obtained 55% marks. Feeling aggrieved, the Bank has preferred the present Appeal. 8. Learned advocate Mr. Ashok Kumar Choudhary has appeared for the appellant Bank. He has submitted that the learned single Judge has committed a grave error in reading the conditions of advertisement. He has submitted that there was no possibility of two interpretations in respect of required qualification. The Bank has not made any distinction in the honours degree and the other degree. In absence of any clarification the terms and conditions of the advertisement should be given its pure and simple meaning. If such a meaning is given, the candidate was required to have secured 55% marks in aggregate. That means the aggregate of marks obtained in all papers attempted by the candidate ought to be considered. He has further submitted that as the applications were made on-line it was at the interview, the Bank had occasion to consider the credentials of the candidates for the first time. The Bank’s action in not selecting the petitioner cannot be interfered with merely on the ground that the petitioner was allowed to take the competitive examination and was also called for interview. 9. The Bank’s action in not selecting the petitioner cannot be interfered with merely on the ground that the petitioner was allowed to take the competitive examination and was also called for interview. 9. The Appeal is contested by the writ petitioner. Learned advocate Dr. Binay Kumar Singh has appeared for the respondent-writ petitioner. He has submitted that in the recent advertisement the Bank has clarified the manner in which the marks would be calculated. In the advertisement in question, in absence of such clarification, only possible interpretation should be that only subjects in honours course shall be considered for calculation of the aggregate marks. He has submitted that the Bank has discriminated against the petitioner to ruin the career of the petitioner. 10. We see no substance in the arguments advanced by Dr. Binay Kumar Singh. As we have recorded, the relevant term and condition of the advertisement is simple and unambiguous. The said term cannot be given any meaning other than the simple meaning that for computation of percentage, the marks secured in all papers attempted by the candidate must be considered. It is for the employer to decide the required qualification. If the Bank, as an employer, has not made any distinction between the honours degree and the other degree, the same cannot be read in the advertisement. In our opinion, the learned single Judge has erred in holding that only marks obtained in the subjects which are offered in honours course should be considered for computation of percentage. The learned single Judge has also erred that the Bank having allowed the petitioner to take the competitive examination and having called the petitioner for interview, is estopped from declaring the petitioner ineligible for selection. Given the aforesaid pure and simple meaning to the terms of the advertisement, admittedly, the petitioner was not eligible for appointment as Probationary Officer. The Bank cannot be compelled to consider the petitioner as eligible or qualified. 11. For the aforesaid reasons, the Appeal is allowed. The impugned JUDGMENT : and ORDER :dated 27th June 2011 passed by the learned single Judge in above C.W.J.C. No. 19886 of 2010 is set aside. C.W.J.C. No. 19886 of 2010 is rejected. 12. Parties will bear their own cost.