IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19886 of 2010 Manoj Kumar, son of Rameshwar Singh, R/o Janta Road, Amrudi Bagicha, new Yarpur, near Uma Press, P.S. Gardanibagh, Patna. …Petitioner Versus 1. The Chairman -Cum- Managing Director, Allahabad Bank, Head Ofice-2, Netaji Shubash Road, Kolkatta-700 001. 2. The General Manager (HRD), Allahabad Bank, Head Office-2, Netaji Shubash Road, Kolkata-700 001. 3. The Deputy General Manager-cum-Zonal Manager, Allahabad Bank, Bihar Zone, Budh Marg(Opposite Kotwali P.S.), Patna-800 001. …Respondents For the petitioner :Dr. Binay Kumar Singh For the respondents Bank :Dr. Binod Kumar Jha & :Mr. Shjailendra Kr. Jha ----------- 06. 27.06.2011 Petitioner filed this writ application under Article 226 of the Constitution of India seeking, inter alia, the following reliefs: (ii) For quashing the criteria of 55% marks at graduation for Probationary Officer Examination on the ground of being arbitrary and irrational with no nexus with the object to be achieved and thus violative of article 14 of the Constitution of India. (v) For a direction to the respondents to appoint the petitioner to the post of Probationary Officer with retrospective effect on the ground that he got a total of 224 marks including 16 at the interview whereas those with only 207 marks in OBC category were selected. Relevant facts, in brief, are that the petitioner, being an unemployed commerce graduate having Master of Business Administration degree, applied on line for his appointment on the post of Probationary Officer in Allahabad Bank (for short „the Bank‟) for which advertisement was put up. Altogether 990 vacancies in 2 JMG Scale 1 were to be filled up out of which 880 posts of Probationary Officer were to be appointed. Rest of the posts were designated as Agricultural Field Officer(A.F.O.) The educational qualification required for the post as per the advertisement (Annexure-1) was graduate with minimum 55% marks in aggregate from a University recognized by Government of India. Other eligibility criteria were also notified, but they are not being noticed in view of the epicenter of dispute involved in the present case. Petitioner claiming appointment under OBC category, applied for the post of Probationary Officer as he had obtained more than 55% of marks in honours subject(s). Relevant mark sheets of the petitioner are annexures-2 series wherefrom it appears that he obtained 447 out of total 810 marks in honours paper(s). On making preliminary scrutiny, petitioner was found eligible/suitable and was issued a call letter to participate in the written test scheduled on 21.02.2010. The call letter is on record as annexure-3. Based on his performance at the written examination/test, the respondent-Bank empanelled him in the list of successful candidates who were to be called in for interview. Accordingly, he was interviewed. Final list of selected candidates did not contain his name which surprised him as he was genuinely hoping to come with flying colours at the examination. He, therefore, applied under Right to Information Act (RTI) on 30.07.2010 3 seeking relevant information about his status/result which was responded to by the respondent-Bank by letter dated 30.08.2010 (Annexure-4) wherefrom it appeared that he was awarded total of 224 marks (including the marks obtained in the interview) which entitled him for his appointment as Probationary Officer in OBC category since the last appointee under the said category had scored 207 marks. It was explained therein that he was not considered for appointment as he had not secured 55% of marks in aggregate in the examination. Petitioner thus moved this Court seeking aforesaid relief(s). Counter affidavit/supplementary counter affidavit have been filed which are on record. Heard learned counsel for the petitioner and the respondent-Bank. Learned counsel for the petitioner highlighting the terms and conditions of the advertisement, submits that the stand being taken by the respondent Bank is in the teeth of the eligibility condition and is thus arbitrary and unreasonable and this Court should, therefore, interfere in the matter and grant the relief(s). On the other hand, the respondent Bank has taken a stand that the claim of the petitioner was not considered as he had not obtained 55% marks in aggregate in the examination at the graduation level. According to the respondents, the entire subjects opted by the petitioner 4 at graduation level examination, although pursuing honours course, will have to be taken into account to compute the aggregate. Since the interpretation of the relevant educational eligibility clause is the bone of contention between the parties, it is apposite to quote in verbatim the eligibility conditions set out in the advertisement which is as under: “ Probationary Officer: Graduate in any discipline with minimum 55% marks(for SC/ST/PT-50%) in aggregate from a university recognized by government of India. Computer qualification like diploma in computer operation from NIIT,SSI, Aptec, CMC, DOEACC course/certificate(O/A/B/C) level etc. essential.” Learned counsel relying on a judgment of the Hon‟ble Apex Court in the case of K. Manjushree vs. State of Andhra Pradesh & Anr. [(2008) 3 S.C.C. 512], submits that the Bank would not be justified in altering/modifying/interpreting to the detriment of the petitioner the eligibility criteria. It is submitted that the law in this regard has been clarified by the Apex Court on several occasions. Referring to paragraphs no.27 and 32 of the said report, it has been emphatically argued that rules of the game cannot be altered or changed midstream by the employer. It is submitted that in identical/similar circumstance, this Court in CWJC No.8287 of 2010 by order dated 30.06.2010 (Annexure-5), took a view that if 5 the aggregate of honours and pass course are not specifically mentioned in the advertisement, then the authorities would not be justified in taking a view that aggregate of honours and pass course subjects/papers would be relevant for computing the aggregate. Paragraph 6 of the aforesaid judgment is relevant and thus extracted hereinbelow: “From perusal of the advertisement it appears that graduate with minimum 60 per cent marks were eligible to apply for the post advertised. Petitioner nos. 1 to 5 having appeared in the Honours examination and having secured 60 per cent marks in the Honours papers were eligible to appear in the Examination as the advertisement does not provide that the applicant should secure 60 per cent marks in aggregate of Honours and Pass course. Having verified the mark-sheet appended with the application form petitioner nos. 1 to 5 were allowed to appear in the written examination and having become successful in the written examination petitioner nos. 1 to 5 are being stopped from appearing in the interview with reference to the eligibility clause of the advertisement which does not require the candidate to secure 60 per cent marks in the pass course, as such, the action of the Bank not to permit petitioner Nos.1 to 5 to appear in the interview is wholly arbitrary and it is directed that the Bank should permit petitioner Nos. 1 to 5 to appear in the interview after fixing a fresh date for such purpose with due communication to petitioner nos.1 to 5 under registered post. Compliance of this order be made by the authorities of the Bank as early as possible, in any case within two months of its receipt by the Bank.” The eligibility condition for the post in question requires graduation in any discipline with minimum 55% 6 marks in aggregate from a University recognized by the government of India. It thus does not appear therefrom that the applicant must have secured 55% of marks in aggregate computing both Honours and Pass Course subjects. It is common knowledge that student pursuing Honours course focuses on the honours subjects in order to secure higher marks putting him in higher division/class. Such student is required to secure pass marks in subsidiary/pass course subjects. Learned counsel for the petitioner produced a recent employment notice issued by the respondent Bank to show that minimum educational qualification required for the post of Probationary Officer has been notified in the following terms: “Graduate in any discipline with minimum 55% marks (for SC/ST/PC-50%) in aggregate ** from a University recognized by Government of India.” The same has been further clarified/explained by a Note in the following manner: “Note: The percentage of marks shall be arrived at by dividing the aggregate/total marks obtained by the candidate in all the subjects irrespective of optional/additional subjects studied with the aggregate/total maximum marks of the examination passed (both for pass and/or Honours course) for all the years of the examination.” This clarification/explanation is not found in the advertisement (Annexure-1). If the terms/conditions of eligibility is pregnant with two possible or reasonable 7 interpretation then the authority would not be justified in interpreting it to the detriment of the successful candidate who was allowed to take interview even after noticing that he had obtained 54 % of marks in aggregate by computing all subjects i.e. honours and pass course. A perusal of the mark sheet provided by the University (annexure-2 series) shows that aggregate in honours papers and aggregate in subsidiary subjects/papers have been provided separately. A candidate pursuing honours course, therefore, may hold a bona fide view considering the terms of eligibility that he is educationally eligible having obtained more than 55% of marks in honours papers as he was pursuing honours course. The stand of the respondent Bank that 55% of marks in aggregate is to be computed taking into consideration all the subjects pursued by the candidate at the graduation level, in the facts of the present case, would tantamount to deviating from eligibility criteria set out in the advertisement (Annexure-1). At this stage, it may again be highlighted that the petitioner applying on line was permitted to take the written examination and on a consideration of relevant documents he was also allowed to be interviewed. The stand of the respondent Bank in the counter affidavit that the petitioner while taking the interview, himself declared in the bio data cum declaration form (annexure-2 to the supplementary counter affidavit) 8 that he had secured in aggregate 54% of the marks would not cut much ice. I simply fail to appreciate, in the given facts of the present case, the stand of the respondent Bank in interpreting the conditions of minimum educational qualification to the detriment of the successful candidate like the petitioner who was even allowed to appear at the interview after noticing the fact that as per their interpretation of eligibility criteria he had obtained 0.1% less marks. The stand of the respondents seems to be irrational and unreasonable. On 10.12.2010, this Court passed the following order: “In the meantime, if the appointment letter has not issued then the same shall not be issued to the last candidate under the O.B.C. category.” Shri Ravi Kumar whose name was set out as the last candidate in O.B.C. category having obtained 206 marks in total was thereafter permitted to be added as respondent no.4 and notices were directed to be issued. Respondent Bank, thereafter filed a supplementary counter affidavit stating therein that newly added respondent no.4 Ravi Kumar, the last selected candidate in O.B.C. category, had resigned from the post. Considering the said stand this Court, by order dated 31.03.2011, permitted the petitioner to delete aforesaid Ravi Kumar from the array of the party. It is thus, apparent that 9 petitioner can be accommodated without disturbing any successful applicant of the examination in question. For all these reasons, the writ application is allowed. The respondent Bank is directed to consider the case of the petitioner for appointment on the post of Probationary Officer treating him educationally qualified having obtained 55% of marks and pass appropriate orders in accordance with law within one month from the date of receipt/production of a copy of this order. Parties shall bear their own costs. hr ( Kishore K. Mandal )