IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 14530 of 2007 Date of Decision: 5.10.2010. Naveen --Petitioner Versus Gurgaon Gramin Bank & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Tejinder Joshi, Advocate for the petitioner. Mr. Vipin Mahajan, Advocate for respondents no.1 & 2. Mr. S.K. Tamak, Advocate for respondent no.3. *** PERMOD KOHLI.J (ORAL) The petitioner has called in question the selection/appointment of respondent no.3 to the post of Officer Scale-I in the respondent no.1-bank under the S.C category. Briefly stated the facts giving rise to the present petition are noticed hereunder:- Respondent no.1 advertised the posts of Officer Scale-I and Clerk-cum-Cashier cadre posts in the bank in the Employment News on 3.3.2007. As many as 22 posts were advertised for Officer Scale-I and out of 22 posts 4 posts were reserved under S.C category. The petitioner claiming to be eligible applied for the post. As per the criteria laid down, the selection was to be made on the basis of a written test followed by an interview. The notified criteria as reproduced in the writ petition is as under:- CWP. No. 14530 of 2007 -2- “SELECTION PROCEDURE: Post Code-1 The selection of the candidates shall be made on the basis of written test and interview. All the eligible candidates who apply with the requisite fee and whose applications are received in time will be called for a written test, which will be objective type comprising:- Sr. No. Papers No. of questions Maximum Marks Duration 1 Reasoning 50 50 120 minutes 2 Quantitative Aptitude 50 50 3 General Awareness 50 50 Total 150 150 4 English Language 50 50 30 minutes. (Test of reasoning, quantitative aptitude and General Awareness will be printed in Hindi and English). Note: a) The marks obtained in first three papers will be reduced to 60% for the purpose of preparing merit list after the written examination. f) The candidate must obtain minimum of 35% marks (30% for SC) in each test. g) The test of English language is only a qualifying exam and one has to obtain minimum of 35% marks (30% for SC). Marks obtained in the written test will be reckoned for merit ranking. Accordingly, candidates will be called for interview. Depending upon the number of vacancies. Only those candidates, who rank sufficiently high in the written test will be called for interview in the ratio of 1:4. Mere eligibility/pass in the written test shall not vest any right for being called for interview.” CWP. No. 14530 of 2007 -3- The petitioner participated in the written examination and was declared successful. He was accordingly called for interview. On completion of the process of selection respondent no.3 has been selected and appointed under the S.C category and the petitioner remained unsuccessful. Other S.C selectees/appointees have not been impleaded as party/respondents to the petition. Selection/appointment has been challenged primarily on two counts. (1) That higher percentage of marks i.e. 40% has been fixed for interview as against 60% for written test. (2) The petitioner has not been given the preference as per the laid down criteria for selection. It is admitted case of the parties that the selection criteria was duly notified and the petitioner had the knowledge of the selection criteria. Despite having the knowledge the petitioner never challenged the criteria before the interview was held rather he participated in the process of selection and it is only after being declared unsuccessful that the petitioner has challenged the selection criteria in the present writ petition. Hon'ble High Court of J&K in case of Madan Lal & Ors. v. The State of Jammu & Kashmir & Ors reported as JT 1995 (2) S.C. 291 has held as under:- “ The petitioners also appeared at the oral interview conducted by the concerned members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. 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, that they have filed this petition. It is now well settled that if CWP. No. 14530 of 2007 -4- 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 is vitiated or the Selection Committee is not properly constituted. In the case of Om Parkash v. Akhilesh Kumar Shukla and Ors. (AIR 1986 SC 1043), it has been clearly laid down by a Bench of three Hon'ble Judges of the Hon'ble Supreme 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.” The Hon'ble Supreme Court in case of Chandra Parkash Tiwari and others V. Shakuntala Shukla and others (2002) 6 SCC 127 has held as under:- “ 32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Parkash Shukla (Om Parkash Shukla v. Akhilesh Kumar Shukla and Ors.), a three- CWP. No. 14530 of 2007 -5- Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.” The aforesaid observations have been reiterated by the Hon'ble Supreme Court in the case of Union of India and others v. S. Vinod Kumar and Ors. Reported as AIR 2008 Supreme Court 5. The petitioner having participated in the process is estopped from challenging the selection criteria at this belated stage. Apart from the above, there is no thumb rule for fixing the marks for the interview. In the present case the petitioner has now made any allegations against any of the members of the selection body that the marks in the interview have been manipulated to suit the private respondent. In absence of their being any allegation of malafide or bias such a plea is not sustainable in law. In so far the question of giving preference to a candidate is concerned, it is claimed that the petitioner has Diploma in Management to his credit and thus he was required to be given preference in terms of Clause-B of the eligibility criteria laid down by the respondents. The rule of preference has been finalized by the Hon'ble Supreme Court in case of Secy. (Health) Deptt. Of Health & F.W and another Vs. Dr. Anita Puri and others reported as (1996) 6 SCC 282, wherein following observations have been made:- “ 7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. Is a higher qualification CWP. No. 14530 of 2007 -6- than the minimum qualification required for the post and Respondent no.1 was having that degree. The question then arises is whether a person holding a M.D.S qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed.” In the present case, under the criteria laid down preference has been given during the course of the interview. Respondents have produced the record of selection as directed by the court. From the S.C candidates two candidates securing higher marks i.e. 23 and 21 out of 40 has been selected . Petitioner is 3rd highest with 17 marks. No candidate having less marks than the petitioner has been selected. Out of the said two candidates only one has been impleaded as a party in this petition. Under the given circumstances, the challenge to the selection of the private respondent is not sustainable on any count. No merit, petition dismissed. The record of selection has been returned to Mr. Vipin Mahajan, Advocate for respondents no. 1 & 2. (PERMOD KOHLI) JUDGE 5.10.2010. lucky Whether to be reported? Yes.