Research › Search › Judgment

Calcutta High Court · body

2020 DIGILAW 26 (CAL)

Naba Kumar Biswas v. Bangiya Gramin Vikash Bank

2020-01-07

SAUGATA BHATTACHARYYA, SOUMEN SEN

body2020
JUDGMENT 1. This appeal is arising out of an order dated 11th July, 2019 in a writ petition filed by the appellant challenging the procedure adopted by the respondent Bank for the promotion from the post of Office Attendant (Gr-C) to the post of Office Attendant (Gr-B). 2. A selection process was initiated by the respondent Bank to fill up the vacancies as on 31st March, 2013 in accordance with the Regional Rural Banks (Appointment and Promotion of Officers and Employees) Rules, 2010. As per the Rules, the selection was to be made on the basis of marks obtained on combined performance in the written test and the interview. Out of total 100 marks, 70 marks were allotted for the written test and 30 marks for the interview. 40% in aggregate was the minimum cut-off marks required for being eligible for promotion. The petitioner being fully conversant with the aforesaid rules and the promotion norms participated in the online test along with other candidates, which was held on 19th January, 2014. The said online test was conducted by the Institute of Banking Personnel & Selection. The petitioner was directed to appear before the Interview Board on 7th February, 2014. A final list of selected candidates was published wherein the name of the petitioner did not appear. The list contained the name of several candidates who were junior to the petitioner in the inter se seniority list published by the Bank. The petitioner being aggrieved by non- inclusion of his name in the merit list of candidates eligible for promotion challenged the promotion process by filing a writ petition. In the said writ petition (hereinafter the first writ petition), the petitioner challenged the awarding of marks. The learned Single Judge considered the grievance of the petitioner and did not found any merit in such contention and, accordingly, dismissed the said writ petition. The petitioner accepted the said order and had not preferred any appeal against the said order. 3. Undeterred by the said dismissal of the first writ petition after completion of the promotion process, the appellant filed the second writ petition in which he has challenged amongst others the allocation of marks, namely, the marks allotted in the written test as well as in the interview. 3. Undeterred by the said dismissal of the first writ petition after completion of the promotion process, the appellant filed the second writ petition in which he has challenged amongst others the allocation of marks, namely, the marks allotted in the written test as well as in the interview. The writ petitioner this time contends that his marks in the written test may have been deliberately depressed to artificially make the petitioner ineligible for promotion and the allotment of 30 marks out of 100 for an interview is arbitrary and leaves room for manipulation. Initially, the appellant was successful in obtaining an interim order on 19th February, 2015 by which the respondent bank was directed to ensure that at least one post of Office Assistant (multi-purpose) is left vacant till disposal of the writ petition since the petitioner may be entitled to the same if the petition succeeds. 4. The learned Trial Judge while passing the interim order had observed that it is now judicially recognized that allotment of more than 15% marks for an interview may result in nepotism or dubious practices being indulged in, prima facie, the rules for the selection process appear to be faulty. The learned Single Judge, however, did not consider at that time that similar issue had cropped up in the earlier writ petition and the co-ordinate Bench on consideration of similar objection has dismissed the writ petition and the said order has attained finality. We take it that the learned Single Judge at the relevant time was not informed of the earlier order which has since now been referred to in the final order dated 11th July, 2019 passed by Justice Amrita Sinha. The appellant has failed to demonstrate that the composition of the Interview Committee is in violation of any rules or that any member of the Committee had any bias towards the writ petitioner. The appellant has failed to establish mala fide on the part of the Committee members constituting the Interview Board or any act of nepotism in favour of any candidates who have acquired lesser marks in the written test but had acquired higher marks in the interview. It is not unnatural for a candidate that who may not had obtained high marks in the written examination but had performed well and obtained fairly higher marks in the interview. The sum total of the marks is what that matters. It is not unnatural for a candidate that who may not had obtained high marks in the written examination but had performed well and obtained fairly higher marks in the interview. The sum total of the marks is what that matters. 5. Although it may be true to some extent that higher percentage of marks for the interview may result in nepotism and/or manipulation but in absence of cogent material to show that in the instant case anything of that sort happened, we are not inclined to interfere with the impugned order. Moreover, the second writ petition would be barred by principles of constructive res judicata as it was open to the writ petitioner in the first writ petition to challenge the allocation of marks in the written test and in the viva- voce which was later argued to be arbitrary. In the first writ petition, the selection process was held to be valid and the grounds of challenge for the promotion was not interfered with. In the said writ petition, it was open for the appellant to urge the arbitrariness in the allocation of marks and having not raised so, the appellant is now estopped from challenging the same in the second writ petition by reason of constructive res judicata. 6. Apart from the fact, it appears that the writ petitioner has with his eyes wide open participated in the selection process and it is trite law that an unsuccessful candidate if the selection is over cannot turn around and question the modes and modalities of the process of selection and/or promotion. 7. Considering gamut of the facts and law involved in the appeal, we find it apposite to place reliance on the judgment of the Honble Supreme Court reported in (1995) 3 SCC 486 (Madan Lal & Ors. vs. State of J & K & Ors.) ; Paragraphs 9, 10 and 17 are quoted below:- ' 9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. Up to this stage there is no dispute between the parties. 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. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla ( AIR 1986 SC 1043 ) it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner 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. 10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee. 17. In the light of what is stated above, while dealing with Contention 1, this contention also must fail. The petitioners subjectively feel that as they had fared better in the written test and had got more marks therein as compared to the selected respondents concerned, they should have been given more marks also at the oral interview. But that is in the realm of assessment of relative merits of candidates concerned by the expert committee before whom these candidates appeared for the viva voce text. Merely on the basis of petitioners apprehension or suspicion that they were deliberately given less marks at the oral interview as compared to the rival candidates, it cannot be said that the process of assessment was vitiated. This contention is in the realm of mere suspicion having no factual basis. It has to be kept in view that there is not even a whisper in the petition about any personal bias of the Members of the Interview Committee against the petitioners. They have also not alleged any mala fides on the part of the Interview Committee in this connection. Consequently, the attack on assessment of the merits of the petitioners cannot be countenanced. It remains in the exclusive domain of the expert committee to decide whether more marks should be assigned to the petitioners or to the respondents concerned. It cannot be the subject-matter of an attack before us as we are not sitting as a court of appeal over the assessment made by the committee so far as the candidates interviewed by them are concerned. In the light of the affidavit-in-reply filed by Dr Girija Dhar to which we have made reference earlier, it cannot be said that the expert committee had given a deliberate unfavourable treatment to the petitioners. In the light of the affidavit-in-reply filed by Dr Girija Dhar to which we have made reference earlier, it cannot be said that the expert committee had given a deliberate unfavourable treatment to the petitioners. Consequently, this contention also is found to be devoid of any merit and is rejected. ' 8. Under such circumstances, we do not find any merit in the appeal. 9. The appeal and the application, accordingly, stand dismissed upon treating the same on days list. However, there shall be no order as to costs.