IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** C.W.P. No.18181 of 2009 Date of Decision:18.05.2011 Kirti Singla and another .....Petitioners Vs. Union of India and another .....Respondents CORAM:- Hon'ble Mr. Justice Augustine George Masih Present:- Ms. Veena Kumari, Advocate for the petitioners. Mr. Kanwaljit Singh, Senior Advocate with Ms. Sukhwinder Kaur, Advocate for respondent No.2. **** Augustine George Masih, J. (Oral) The present writ petition has been filed by the petitioners who are visually impaired claiming appointment to the two posts of Clerks in the respondent – Oriental Bank of Commerce (for short, `the Bank') which were reserved for visually impaired candidates. The advertisement is dated 14.11.2008 Annexure P.1 in response to which the petitioner applied. The petitioners fulfilled the eligibility criteria for participating in the written test, they were allowed to take part, which was held on 18.1.2009 and as per the reply filed by the respondents, they obtained 78 marks out of 235. The petitioners were called for interview and had appeared before the Selection Committee on 11.4.2009. Out of 152 posts, which was to be filled from Punjab Circle, two posts which belonged to visually impaired persons were to be filled up. As there were no other candidates for the said posts, the petitioners claim their right to appointment on the said two posts. This claim has been asserted by C.W.P. No.18181 of 2009 -2- them on the ground that there were no minimum marks fixed by the Bank which was required to be obtained by the candidates for appointment to the said posts in the written test, interview or by adding up the marks for both. Notice of motion was issued to the respondents and the Bank filed a detailed reply to the claim made by the petitioners. First objection taken is that the selected candidates have not been impleaded as party respondents. It has been further stated that the petitioners have no vested/ legal right for selection. They have a right of consideration which has been given to them and on consideration of their candidature, they have not been offered appointment as they have secured very low marks in the written test even below the Scheduled Caste category candidates, last of which was 112 marks. In other words, the petitioners has not passed the written test. The Bank has further asserted that they do not fulfil the suitability for appointment to the post of clerks and, therefore, have rightly not been issued an appointment letters. The posts which were advertised and against which the petitioners had applied, have been put in the backlog for visually impaired persons and carried forward and same would be filled up in a subsequent selection to be held. Counsel for the respondents has placed on record order dated 26.3.2010 passed by the Chief Commissioner for Persons with Disabilities, New Delhi, wherein representation of petitioner No.2 - Ramandeep Singh dated 26.6.2009 in which he had made a grouse of non-selection of a visually handicapped candidate on the clerical posts in Oriental Bank of Commerce stands rejected on the ground that he did not obtain the minimum marks which were obtained by the Scheduled Castes Candidate, i.e., 112 marks. Counsel for the respondents has not been able to produce C.W.P. No.18181 of 2009 -3- any instructions/ rules which would indicate that there were minimum pass marks required to be obtained by the candidates in the written test to be eligible for issuance of an appointment letter. The primary thrust in supporting the decision of the Oriental Bank of Commerce is that the suitability has to be fixed by the bank and since the petitioners do not fulfil the requirement of the Bank, they have not been issued the appointment letter because of low merit. I have heard learned counsel for the parties and with their able assistance, have gone through the record of the case. The facts are not in dispute that out of 152 posts reserved for the Punjab circle, as per the advertisement dated 14.11.2008 (Annexure P.1) where two posts of Clerks were reserved for the visually impaired candidates. It is also not in dispute that the two petitioners before this Court were the only candidates who had applied for the said posts and fulfilled the eligibility criteria for being considered for appointment. They did participate in the test which was held on 18.1.2009 and thereafter, were interviewed by the Selection Committee on 11.4.2009. The only reason for not issuing appointment letters to the petitioners was that they had obtained 78 marks each and, therefore, were not entitled to the appointment primarily on the ground that they did not fulfil the suitability requirement of the bank and they also did not obtain at least the minimum marks which were obtained by last person in merit of Schedule Caste category, i.e. 112 marks. For determining the right of the petitioners for appointment in the absence of any rules or instructions governing the minimum marks which a person would obtain for being eligible for appointment to the post, advertisement dated 14.11.2008 would be the guiding force. Perusal of the C.W.P. No.18181 of 2009 -4- same would indicate that as per clause 3 which gives the selection procedure provides that the candidates have to pass in each of the objective and descriptive test separately and mere eligibility/ pass in the written test shall not vest any right on a candidate for being called for interview and the final selection will be on the basis of ranking accorded after adding the marks obtained in the objective tests and the interview. It is not in dispute that the petitioners were called for interview which would mean that they fulfiled the minimum pass marks in the written test which the Bank had fixed otherwise they would not have been called for interview at all. If that be the position, the respondent- Bank cannot now turn around and say that the petitioners had obtained only 78 marks and therefore, cannot be appointed. After having accepted the petitioners to have secured the minimum marks in the written test, the stand which has been taken by the Bank cannot hold the field. That apart, the minimum marks which the candidate had to obtain after the adding up the written test and interview marks has also not been spelt out. If that be so and keeping in view the fact that the petitioners were the only two candidates visually impaired candidates for the two posts which were advertised, the only conclusion which can be drawn is that the petitioners were entitled to the appointment to the said two posts and therefore, the action of the respondent- Bank in not issuing them the appointment letters is in violation of the advertisement which itself mandates that they would be appointed if they are only candidates in their particular category. The only condition which the Bank has now imposed is the suitability which according to the Bank, the petitioners do not fulfil. But there are again, no guidelines to determine the suitability has been laid C.W.P. No.18181 of 2009 -5- down and if it is left to the discretion of the Bank, it would totally be arbitrary, unjust and violative of the principles of natural justice. Respondent – Bank which is Government of India undertaking cannot on its whim and fancy, assess the suitability of a candidate without laying down the criteria or spelling that out under any instructions/ rules. Even in response to the writ petition filed by the petitioners, nothing has been pleaded or explained. It would be worth mentioning here that in the written statement, no criteria as such for assessing the suitability has been detailed. The rejection of the representation by the Chief Commissioner for Persons with Disabilities vide order dated 26.3.2010 can also not be held to be against the petitioners when they have a right to the appointment to the said posts as has been held above. In view of the above, the present writ petition is allowed. A direction is issued to the respondent- Bank to issue the appointment letters to the petitioners within a period of one month from the date of receipt of certified copy of this order. May 18, 2011 ( AUGUSTINE GEORGE MASIH ) renu JUDGE