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2020 DIGILAW 126 (HP)

Deepak Kumar v. Punjab National Bank

2020-01-10

JYOTSNA REWAL DUA, L.NARAYANA SWAMY

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JUDGMENT : L. Narayana Swamy, J. 1. The petitioner, by the medium of this petition challenges the selection and appointment of respondents No. 3 to 5 to the post of Part Time Sweeper in the Punjab National Bank in District Kangra, and Chamba, H.P. 2. The case of the petitioner is that the respondent-Punjab National Bank, hereinafter referred to as 'the Respondent-Bank' advertised post of Part Time Sweeper-cum-Peon at PNB Branch at 'Sadwan Khas, Tehsil Nurpur District Kangra, HP. The petitioner alongwith other candidates applied for the said post and was selected to the post of Part Time Sweeper on 16.3.2017 and worked on the said post till 27.3.2019. The selection was stated to be made from the candidates residing within 5 kilometers from Branch of PNB at Sadwan in Tehsil Nurpur (Kangra) HP. 3. It is further submitted that respondent No. 1 through proper channel advertised 12 posts of Part Time Sweepers on 13.7.2018 in different branches in District Kangra for which the petitioner also applied alongwith all documents, including the experience certificate of Branch Manager Sadwan Khas. The petitioner appeared for interview on 25.9.2018. On 18.12.2018 respondents declared the result for the post of Part Time Sweepers but to the utter surprise of petitioner, he was not selected despite the fact that he was working as Part Time Sweeper since 2017 with the respondent-Bank and was fully eligible. However, the petitioner was orally intimated not to report for duty w.e.f. 1.1.2019. It is further stated that the petitioner had filed CWP No. 3043/2019 which was withdrawn with liberty to challenge the new selection list filed with the reply by the PNB vide order dated 7.3.2019. Thereafter respondent No. 1 declared the result and offered the appointment to 10 numbers of Part Time Sweepers for District Kangra and 2 number of Part Time Sweepers for District Chamba. The petitioner further states that respondents No. 3 and 4 are not eligible to hold the post of Part Time Sweeper on account of their marks obtained in matriculation and 10+2 examinations as per the advertisement as well as reply filed by respondent No. 1 in CWP No. 3043/2018. Hence, the present writ petition has been filed seeking a writ of certiorari quashing appointment of respondents No. 3 to 5, being illegal, arbitrary, discriminatory and unconstitutional. 4. Hence, the present writ petition has been filed seeking a writ of certiorari quashing appointment of respondents No. 3 to 5, being illegal, arbitrary, discriminatory and unconstitutional. 4. Respondents No. 1 and 2-Bank have filed reply and have stated that the respondent-Bank was in need of Part Time Sweepers for two Districts i.e. Kangra and Chamba. Thus the advertisement was issued in the news papers. It is stated that inadvertently, in English news paper, there was no mention of District-wise reservation. Respondent-Bank prepared the result in view of the advertisement published in English News paper. It is stated that now respondent/Bank has prepared the fresh result on the basis of existing merit list District-wise which is in accordance with the Bank's Guidelines and as per said merit, the name of petitioner does not figure in the result sheet. It is stated that the services of petitioner was taken as and when required on leave gap arrangement for which he was duly compensated and he has no right to claim any continuation/regularization. It is further submitted that the candidature of one Shri Pawan Kumar was cancelled due to higher qualification. It is further submitted that the qualification for the post of Part Time Sweeper is less than 10th class/standard as per HRD Circular Litter No. 10/2016 dated 4.7.2016, including age criteria. It is submitted that as per qualification of the petitioner, which is admitted by him, that is matriculation, he is not even eligible for the post of Part Time Sweeper as the post is meant for those who had not passed 10th standard. It is further submitted that only three posts was for SC and petitioner figures at Sr. No. 8, therefore, he has no right to file and maintain the present writ petition. It is further submitted that respondent/Bank has written a letter for verification of the documents of respondents No. 3 to 5 and reply is still awaited as respondent was not knowing about the higher qualification of respondents No. 3 to 5. Hence, it is prayed that the petition may be dismissed. 5. We have heard learned counsel for the parties and have gone through the record. 6. The fact that the petitioner was working with the respondent/Bank w.e.f. 2017 to 2019 is not in dispute. Hence, it is prayed that the petition may be dismissed. 5. We have heard learned counsel for the parties and have gone through the record. 6. The fact that the petitioner was working with the respondent/Bank w.e.f. 2017 to 2019 is not in dispute. The stand of the petitioner is that since the petitioner is/was working with the respondent-Bank w.e.f. 2017 to 2019 he has a right to be considered for the post of Part Time Sweeper in view of his past experience in preference to the selected candidates. But in this regard, the petitioner has failed to produce any material to the effect that he has a preferential right over the private respondents. The second ground taken by the petitioner is with regard to qualifications. The petitioner has admitted that he has completed 10th standard and the private respondents have also completed 10+2 standard. As per HRD Circular issued on 4.7.2016, the requisite qualification for the post of Part Time Sweeper is minimum not passed 10th class/standard. There is no minimum qualification and even illiterates are eligible for appointment as Part Time Sweepers. 7. Whereas the stand of the respondent is that the petitioner was appointed on the post of Part Time Sweeper only on a leave gap arrangement, which does not confer any right on the petitioner for appointment to the post of Part Time Sweeper. Further, the petitioner himself is a matriculate. He is also not eligible to be considered for the post in question. It is further submitted that for the period, the petitioner has worked in the respondent/Bank he has been duly compensated and he has now no right to seek regularization/appointment. The learned counsel for the respondents-Bank submitted that the petitioner cannot challenge the selection process as he has participated in the selection process. It is only when the petitioner was not selected, he has knocked the door of this Court to challenge the selection process. He further submits that the petitioner is estopped from challenging the selection process in which he has participated in view of the various judgments rendered by the Hon'ble Supreme Court. 8. In this regard, the observations made by the Hon'ble Supreme Court in Anupal Singh and others vs. State of UP and others, AIR 2019 SC 5652 , are apposite and we quote: "50. 8. In this regard, the observations made by the Hon'ble Supreme Court in Anupal Singh and others vs. State of UP and others, AIR 2019 SC 5652 , are apposite and we quote: "50. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12.10.2014 and the selection. On behalf of the appellants, it was contended that after the revised notification dated 12.10.2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised notification dated 12.10.2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process. 51. Observing that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken the chance to get selected at the said interview and ultimately, finds himself to be unsuccessful, in Madan Lal and Others v. State of J & K and Others, 1995 3 SCC 486 , it was held as under:- "9. ..... The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled 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 the Selection Committee was not properly constituted......" 52. In K.H. Siraj v. High Court of Kerala and Others, 2006 6 SCC 395 , it was held as under:- "73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper......". 53. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper......". 53. In Union of India and Others v. S. Vinodh Kumar and Others, 2007 8 SCC 100 , it was held as under:- "19. In Chandra Prakash Tiwari v. Shakuntala Shukla, 2002 6 SCC 127 , it was further observed:- "34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, 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 there was some lacuna in the process." Same principle was reiterated in Sadananda Halo and Others v. Momtaz Ali Sheikh and Others, 2008 4 SCC 619 wherein, it was held as under:- "59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar, 2007 8 SCC 100 ......The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Suppl SCC 285, where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise......" 9. We may observe herein that with regard to the fixing of the minimum qualification with reference to a post advertised, it is for the respondent-Bank/employer to prescribe any qualification. The employer is competent to prescribed requisite qualification for a particular post. Here in the present case, the post for the Part Time Sweeper was advertised and the minimum qualification was fixed not passed 10th class/standard, by a Circular issued by the HRD dated 4.7.2016, which is not contrary to any statute and any provisions of the law. The employer is competent to prescribed requisite qualification for a particular post. Here in the present case, the post for the Part Time Sweeper was advertised and the minimum qualification was fixed not passed 10th class/standard, by a Circular issued by the HRD dated 4.7.2016, which is not contrary to any statute and any provisions of the law. For the prescription of such qualification of not passed 10th standard there is rationale behind it. The respondent-Bank in fact wanted to give employment to the persons belonging to the lower strata of the society. The respondent-Bank has shown concern on the lower strata of the society by giving employment to them in order to keep away the persons who are highly qualified. Under these circumstances, we may observe herein that the respondent-Bank has not committed any irregularity or illegality by prescribing such qualification for the post of Part Time Sweeper. Since the petitioner has himself participated in the selection process, he is estopped from challenging the selection process in view of the law laid down in the judgments referred to supra. Further, the petitioner while applying for the post in question had full knowledge about the minimum qualification prescribed for the same even though he had applied for the same being a matriculate. 10. It has been rightly said that a person who seeks equity must do equity. A person who, seeks equity must come with clean hands. He who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. No sympathy and equitable consideration can come to his rescue. The equity or compassion cannot be allowed to bend the arms of law in a case where an individual himself has not done equity. Reference in this regard is made to the judgment rendered by the Hon'ble Supreme Court in Chairman and Managing Director FCI and others v. Jagdish Balaram Bahira and others, AIR 2017 SC 3271 . 11. We also do wish to observe here that as far as the selection of private respondents is concerned, it is for the respondent-Bank to initiate action against the said respondents or to condone the same. 12. Therefore, having regard to aforesaid discussion, the petition fails and is accordingly dismissed, alongwith pending applications, if any.