1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1953 OF 2009 Rajeshree R. Bhaye ........Petitioner versus State Bank of India & anr.........Respondents. Mr. H.R. Pawar adv. for the Petitioner. Mr. A.G. Damale adv. for the Respondent no.1. Mr. R.A. Rodriques for respondent/University Mr. Y.R. Mishra with N.R. Prajapati for Union of India CORAM: J. N. PATEL Acting. C.J. AND B. R. GAVAI, J. DATED : 9th February, 2010. JUDGMENT: (Per B.R. Gavai, J.) Rule. Rule made returnable forthwith. By consent of parties taken up for final hearing. 1. The petitioner has approached this court seeking a writ of mandamus or any other writ, or direction, to quash and set aside the impugned letter dated 18-5-2009 issued by the respondent no.1 and to direct the respondent no.1 to take the petitioner in their service as Probationary Officer on ad-hoc basis. 2. The respondent issued an advertisement dated 1st July 2008 for recruitment of Probationary officers. The requisite educational qualification as prescribed in the advertisement was 2 60% or more marks in class XII and 55% or more marks in graduation or post graduation. The petitioner applied for the post of Probationary Officer and was successful in the preliminary examination and main written examination. The petitioner accordingly was called for group discussion and interview. After participation of the petitioner in the group discussion and interview and finding her successful, a letter was issued by the respondent no.1 to the petitioner for medical examination. Subsequently vide communication dated 30-4-2009 appointment letter was issued to the petitioner. After receipt of the appointment order, the petitioner left the earlier job with Patni Computer System and joined the training of respondent no.1 at Hyderabad on 15-5-2009. On 18-5-2009 the respondent no.1 addressed a letter to the petitioner canceling her candidature on the ground that the percentage of the marks obtained by the petitioner in the decree course are less than 55 % of the marks stipulated in the advertisement. Being aggrieved thereby the petitioner has approached this court. 3. The learned counsel for the petitioner submits that the petitioner had secured 60% marks in XII class examination and secured 55% marks in graduation examination. He submits that though on the date of advertisement when she applied for the post, she was not post graduate but however subsequently she has passed her post graduation seeking more than 55% of marks. It is therefore submitted that on the date on which the petitioner had applied for the post, she was possessing the requisite qualification 3 and therefore the action of the respondent in canceling her candidature was not permissible in law. 4. Shri Damale the learned counsel appearing on behalf of the respondent no.1 submits that though the petitioner had secured 55% of the marks in third year of B.Com., the aggregate rate of marks obtained by the petitioner in the three years is not more than 55 %. He submits that what is taken into consideration by the respondent is the aggregate of marks obtained by the petitioner in three years, which is less than 55%. He therefore submits that her candidature is rightly being canceled. 5. The petitioner has passed her B.Com. Degree from Mumbai University and therefore the Mumbai University was joined as party respondent so as to find out as to whether the degree is granted on the basis of marks obtained in the third year alone or on the basis of aggregate marks obtained in all the three years. 6. Mr. Rodriques the learned standing counsel appearing on behalf of the respondent University submitted that in so far as the Mumbai University is concerned, the performance of the student or the class awarded to him is on the basis of the marks obtained in the third year alone. Perusal of the advertisement dated 1/7/2008 issued by the respondent no.1, it reveals that the educational qualification for general candidate is as under: “60% or more marks in class XII and 55% or more marks in graduation or post graduation.” 4 It is not in dispute that the petitioner has secured more than 60% marks in XII standard examination. Though the petitioner has secured more than 55% of marks in the post graduation examination, that is not relevant in as much as the the petitioner has not passed her post graduation at the time of making application. The only question relevant therefore is as to whether the petitioner has secured 55% or more marks in the graduation examination. 8. The learned counsel for the university has produced a copy of the relevant ordinance on record. The relevant regulation 1944 reads thus: “R.1944. Classes will be awarded as shown below on the performance of a student in the Final Year i.e. Third Year examination only, provided he has passed the Third Year examination of the decree at one and the same sitting. Class Subjects First class A minimum of 60 per cent marks on the aggregate of 6 papers (Commerce Paper II, Applied Component was Paper II. Special Group – Three papers and a Paper under the Act Group) prescribed for the Third Year Examination. Second Class A minimum of 45 percent marks on the 5 aggregate of 6 papers (Commerce paper II, Applied Component was Paper II, Special group- Three papers and a paper was the Ancillary group) prescribed for the third year examination. It can thus be clearly seen that in so far as Mumbai University is concerned, the classes are awarded on the performance of the student in the final year. The only rider is that he is required to pass the required examination at one and the same sitting. It is not disputed that the petitioner has passed her third year examination at one and the same sitting. As such in view of the regulation of the Mumbai University cited supra, in so far as judging the performance of the petitioner for her B.Com examination is concerned, what would be relevant is the marks obtained by the petitioner in the third year B.Com. Examination. The petitioner has secured 408 out of 700 marks in her final year B.Com examination. It thus clear that the petitioner has secured more than 55% of the marks in her third year B.Com examination, on the basis of which her performance in the graduation examination will have to be considered. We therefore find that the petitioner has complied with the conditions of securing 55% of the marks in the graduation examination. 8. We further find that the action of the respondent would also be vitiated in the ground of promissory estoppal. The 6 petitioner was working in Patni Computer System and was drawing a salary of Rs. 12000/-. It is pertinent to note that in the scrutiny she was found eligible and permitted to appear for preliminary as well as test examination. Not only that during the group discussion and interview, the original documents of the petitioner regarding educational qualification were fully scrutinized and after finding the petitioner eligible she was appointed on 30-4-2009. After her appointment the petitioner has resigned her earlier job and obtained no objection from her earlier employer before joining the service of respondent no.1. It thus clear that on the basis of the appointment issued in favour of the petitioner, she has acted to her detriment by resigning her earlier job. 9. In the result, we find that the action of the respondent in canceling the appointment of the petitioner and issuing the letter dated 18-5-2009 canceling her candidature is not sustainable in law. We therefore quash and set aside the impugned order dated 18-5-2009 and direct the respondent no.1 to permit the petitioner to continue in her service as per the letter of appointment dated 30-4-2009. 10, Rule is accordingly made absolute in the above terms with no order as to costs. (Acting. C. J.) (B.R. Gavai, J.)