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2019 DIGILAW 637 (ORI)

Sumanta Kumar Sahoo v. Reserve Bank of India

2019-11-20

B.R.SARANGI

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JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner has filed this application challenging the communication dated 17.01.2007 in Annexure-1 issued by the Asst. General Manager (Admn.), Reserve Bank of India (RBI) intimating him about non inclusion of his name in the select list drawn up for the post of Pharmacist. 2. The factual matrix of the case, in hand, is that the petitioner, who belonged to backward classes, after completion of Diploma in Pharmacy in the year 2001, registered his name in the Employment Exchange as well as Orissa State Pharmacy Council, Bhubaneswar. Pursuant to resolution passed by the RBI to fill up the post of pharmacist, the name of the petitioner and others were sponsored by the Employment Exchange, Bhubaneswar and they were advised to furnish particulars pertaining to their candidature before the Bank by 07.11.2006. Pursuant to letter dated 17.10.2006 in Annexure-7, the petitioner submitted his application before the Bank on 03.11.2006 and after due scrutiny, he was issued with a call letter on 05.11.2006 to attend the interview on 05.12.2006. The petitioner appeared before the selection board on 05.12.2006, along with all the documents in support of his qualification, experience etc., for the viva voice test as no written examination was provided for the candidates. But when the select list was published, his name did not find place in the same. Therefore, he has filed this application for inclusion of his name in the select list. 3. Mr. P.K. Rath, learned counsel for the petitioner contended that without conducting a written examination, the authority could not have done the viva Voce test and prepared the select list. As such, the petitioner, being a meritorious candidate, his name should have been included in the merit list taking into consideration the written examination and viva-voce test both. 4. Mr. K. Pattnaik, learned counsel for opposite parties No. 2 and 3 contended that the petitioner had participated in the process of selection with eyes wide open and knowing fully well, that there was no written test for pharmacy, appeared before the selection board for interview and having not come out successful, cannot challenge the same subsequently saying that selection was not done proper by not holding the written test, and cannot also claim inclusion of his name in the merit list, as prayed in the writ petition. It is further contended that the petitioner, along with others, had appeared before the selection board for the viva voce test conducted by opposite parties No. 1 to 3, and he having not come out successful, his name does not find place in the select list prepared by the authority. It is further contended that the petitioner has only impleaded one of the successful candidates as opposite party No. 4 and the other successful candidate has not been made party. Therefore, the writ petition suffers from non-joinder of proper party and should be dismissed. To substantiate his contention he has relied upon the judgments of this Court as well as apex Court in Smt. Usha Rani Agarwal v. State of Orissa (O.J.C. No. 14518 of 1999 disposed of on 19.04.2018) : 2018 (II) OLR 294 , and of the apex Court in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others, (2011) 1 SCC 150 . 5. This Court heard Mr. P.K. Rath, learned counsel for the petitioner, and Mr. K. Pattnaik, learned counsel for opposite parties No. 2 to 3; and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. Before delving into the core issue involved in this writ petition, it is worth-the-name to mentioned that the RBI is a body corporate constituted under Section 3 of the Reserve Bank of India Act, 1934 (hereinafter referred to the "Act, 1934") and has been constituted to regulate the issue of bank and currency notes and keeping of reserves for securing money stability in the country and generally to operate the currency and credit system of the country to Its advantage. The bank is the sole note issuing authority and the bank notes issued by the opposite party No. 1 is legal tender under Section 22 and 39 of the Act, 1934. The opposite party No. 1 regulates and controls the money supply in the country. The bank performs very vital sovereign functions. It manages the public debt of the nation. Apart from the above, the bank is the banker to Central Government as well as the State Government. The bank is also lender of last resort for the commercial banks, and it is also their banker. The bank performs very vital sovereign functions. It manages the public debt of the nation. Apart from the above, the bank is the banker to Central Government as well as the State Government. The bank is also lender of last resort for the commercial banks, and it is also their banker. Further, it performs very vital functions under Banking Regulation Act, 1949, Foreign Exchange Management Act, 2000 etc. and also other important functions under various other statutes. In order to carry out its functions effectively, the bank employs different classes of employees such as Class I (Officers), Class II (Personal Assistants), presently abolished, Class-III (Clerk/Typists) and Class-IV (Subordinate Staff). The Bank has framed well-defined policy and guidelines for the purpose of recruitment to different classes of employees. The cadre of pharmacists falls in the Class-III employees of the Bank and accordingly, for recruitment of Class-III employees, the bank has also framed its guidelines known as "Master Circular on Recruitment, Reservation in Recruitment/Promotion, compassionate appointment etc. for recruitment of Class III Staff". In order to recruit fresh employees, the Bank issues advertisement for recruitment from time to time but where the number of employees sought to be appointed is 5 or less, necessary requisition is made through the local employment exchange. 7. On 15.09.2006, the opposite party No. 1 made a requisition through the District Employment Exchange, Bhubaneswar, Special Employment Exchange, Bhubaneswar and Rajya Sainik Board, Bhubaneswar, thereby, inviting applications from aspiring candidates for recruitment to the two vacancies of Pharmacist in Reserve Bank of India, Bhubaneswar. In the said requisition, details of eligibility criteria and norms and other requirements were prescribed, namely, that the candidate should have passed matriculation or equivalent examination with Diploma in Pharmacy from a recognized Board or University in the State of Orissa. On receipt of the applications and on scrutiny of the eligibility conditions and other requirements prescribed for, a list of 45 candidates was finalized to be called for interview so that selection can be made from amongst the candidates as finalized. The candidates were advised to appear for the interview on the date fixed along with documents in support of the requisite qualifications. The petitioner was one of the candidates for the post of Pharmacist and based on his qualifications and other requirement, his name was included as one in the list of eligible candidates amongst 45 candidates. The candidates were advised to appear for the interview on the date fixed along with documents in support of the requisite qualifications. The petitioner was one of the candidates for the post of Pharmacist and based on his qualifications and other requirement, his name was included as one in the list of eligible candidates amongst 45 candidates. Accordingly, the petitioner was advised to appear in the interview to be conducted by the Bank. Pursuant to the guidelines regarding recruitment to Class-III employees of the Bank, an interview board comprising a Chairman and requisite number of members was constituted to assess the merit of the candidates appearing for recruitment for the post of Pharmacist in the Bank and also to prepare a select list of candidates on the basis of evaluation of their merit before the Board. Consequentially, the interview for the post was held on the dates and the venue mentioned in the letter issued to the candidates and out of 45 candidates called for to appear for the interview, only 44 candidates appeared. Basing on the performance before the interview board and the marks obtained by the candidates, a select was prepared. The petitioner, though succeeded in the interview, but depending upon his performance before the interview board, the mark given to him by each of the members of the interview board and the average arrived at on the basis of the same, his name was placed below in the list prepared in the order of merit and as such, he could not be selected for getting appointment. From out of the names which found place at the top of the list, since there were only two vacancies, two candidates were issued with appointment letter, for which one of the selected candidates has been impleaded as opposite party No. 4 but the other has not been made party to the present case. As the petitioner was not selected, he was duly communicated, vide letter dated 17.01.2007. 8. Challenging such selection, the petitioner filed a representation before the authority praying that the selection made by the RBI, Bhubaneswar should be properly reviewed, particularly when the selection committee has not given any reason for non-selection of candidate. 9. After selection process is completed, a merit list also known as select list has to be prepared. 8. Challenging such selection, the petitioner filed a representation before the authority praying that the selection made by the RBI, Bhubaneswar should be properly reviewed, particularly when the selection committee has not given any reason for non-selection of candidate. 9. After selection process is completed, a merit list also known as select list has to be prepared. The select list to be prepared on the basis of the procedure laid down in the rules governing the field. Publication of a select list presupposes completion of selection process. While the selection process itself is not complete, the applicants cannot claim any legal right to be appointed. Therefore, it is essential to prepare select lilt as per criteria fixed by the authority. In State of A.P. v. D. Dastagiri, (2003) 5 SCC 373 : AIR 2003 SC 2475 , the apex Court held that even if the selection process is complete and only the select list remains to be published but a policy decision is taken by the Government to cancel the recruitment process, the selected candidates do not get any vested right to appointment. In State of Bihar v. The Secretariat Assistant Successful Examinees' Union, (1994) 1 SCC 126 , the apex Court held that it is now well settled by a series of decisions of the Supreme Court that the empanelment of the candidate in the select list confers no right on the candidates to appointment on account of being so empanelled. At the best it is a condition of eligibility for the purpose of appointment and by itself does not amount to selection nor does it create a vested right to be appointed unless the service rules provide to the contrary. Similar view has also been taken in Syndicate Bank v. Shankar Paul, (1997) 6 SCC 584 : AIR 1997 SC 3091 , Vinodan v. University of Calicut, (2002) 4 SCC 726 : AIR 2002 SC 1885 , State of U.P. v. Om Prakash, (2006) 6 SCC 474 : AIR 2006 SC 3080 . Therefore, the candidates have right to be considered but will have no vested right for selection. 10. In J.P. Kulsrestha (Dr.) v. Chancellor, Allahabad University, AIR 1980 SC 2141 : 1980 (3) SCC 418 , the selection to the post of University Teacher by interview, the apex Court held that valid. Therefore, the candidates have right to be considered but will have no vested right for selection. 10. In J.P. Kulsrestha (Dr.) v. Chancellor, Allahabad University, AIR 1980 SC 2141 : 1980 (3) SCC 418 , the selection to the post of University Teacher by interview, the apex Court held that valid. The apex Court further clarified that any administrative or quasi-judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic, flexible and functionally viable processes of transacting business subject, of course to the basics of natural justice, fair-play in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping within the leading strings of the law. Therefore, finds no flaw in the methodology of interviews. In Harjinder Singh Sodhi v. State of Punjab, 1996 (6) SCC 322 , the apex Court held that in the instant case no written examination conducted for consideration of the claims of the parties. Accordingly, the Public Service Commission and the Government have applied the principle of keeping 50% marks for the record and 50% for the interview. Under those circumstances, there is no illegality in the procedure adopted for selection. In Kiran Gupta v. State of U.P., 2000 (7) SCC 719 , the apex Court held that selection based on interview is valid. 11. As such, the claim of the petitioner, that he should be selected, has no legs to stand. It is made clear that the petitioner submitted his application knowing very well that he had only to face interview. As such, no written examination had been prescribed and with eyes wide open, the petitioner participated in the interview and having not come out successful, he could not turn around and challenge the same by way of filing this application. As such, at his behest, the writ petition is not maintainable. 12. As such, no written examination had been prescribed and with eyes wide open, the petitioner participated in the interview and having not come out successful, he could not turn around and challenge the same by way of filing this application. As such, at his behest, the writ petition is not maintainable. 12. In the case of Smt. Usha Rani Agarwal (supra), on which reliance has been placed, this court has taken note of the judgment of the apex Court, as mentioned in paragraph-17, which reads as follows: "In Om Prakash Sukla v. Akhilesh Kumar Sukla, AIR 1986 SC 1043 , the apex Court has been pleased to hold that when the petitioner therein appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. In Madan Lal and others v. State of Jammu and Kashmir and others, AIR 1995 SC 1088 , the apex Court held that if a candidate takes a calculated chance and appears at the interview, then only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted." 13. Similarly, in Vijendra Kumar Verma (supra) in paragraphs, 25 to 28, the apex Court held as follows: 25. In this connection, we may refer to the decision of the Supreme Court in G. Sarana (Dr.) v. University of Lucknow [ (1976) 3 SCC 585 : 1976 SCC (L & S) 474] wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus: (SCC p. 591). "15. ... He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee." 26. Para 15 inter alia reads thus: (SCC p. 591). "15. ... He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee." 26. In P.S. Gopinathan v. State of Kerala [ (2008) 7 SCC 70 : (2008) 2 SCC (L & S) 225] this Court relying on the above principle held thus. (SCC p. 84, para 44) "44. ... Apart from the fact that the appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Governor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being G. Sarana (Dr.) v. University of Lucknow [ (1976) 3 SCC 585 : 1976 SCC (L & S) 474]...." 27. In Union of India v. S. Vinodh Kumar [ (2007) 8 SCC 100 : (2007) 2 SCC (L & S) 792] in SCC at para 18 it was held that: (SCC p. 107) "18. ... It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same." 28. Besides, in K.H. Siraj v. High Court of Kerala [ (2006) 6 SCC 395 : 2006 SCC (L & S) 1345] in SCC paras 72 and 74 it was held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel. 14. 14. In summing up the principles laid down by the apex Court, as well as this Court, as mentioned above, since the petitioner, appeared for interview before the selection board, without any protest and, when he found that he would not succeed in the examination, he filed this writ petition challenging the said examination, this Court cannot grant any relief to such petitioner, reason being if a candidate takes a calculated chance and appears at the interview then only because the result of the interview is not palatable to him he cannot turn around and subsequently contend that the process of interview was unfair or selection committee was not properly constituted. In view of such position, applying the above principle to the present context, this Court is of the considered view that the petitioner participated in the process of selection by appearing at the interview without any protest and took a calculated chance and having not come out successful, cannot turn around and say that the selection process was bad not being conducted written test and interview and, thereby, at his behest, the present writ petition is not maintainable in the eye of law. 15. As it reveals, out of two selected candidates those who have been appointed, the petitioner has only arrayed one of them as opposite party No. 4, excluding the other selected candidate. Therefore, the writ petition suffers from non-joinder of proper party and is thus liable to be, dismissed on that ground also. 16. In the conspectus of facts and law, as discussed hereinbefore, this Court is of the considered view that the relief sought by the petitioner is not admissible to him. Therefore, this Court does not find any merit in this writ petition, which is hereby dismissed. There shall be no order as to cost.