Karnataka High Court
Neeraj Kumar Chadha vs Punjab National Bank on 8 August, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.16187 OF 2013 (S-RES)
Between:
Neeraj Kumar Chadha
S/o Sudesh Kumar Chadha
Age 35 years,
J-102, Vaishnavi Rathnam Apartments
S.M Road, Jalahalli Cross
T. Dasarahalli
Bangalore - 57
Party-in-person
...Petitioner
And:
1. Punjab National Bank
Human Resources Development Division
Head Office
7, Bhikaji Cama Place
New Delhi - 110 607
Represented by Deputy General Manager (HRD)
2. Chairman and Managing Director
Punjab National Bank
Head Office
7, Bhikaji Cama Place
New Delhi - 110 607
3. General Manager
Human Resources Development Division
2
Head Office
7, Bhikaji Cama Place
New Delhi - 110 607
...Respondents
(by Shri Abhilash Raju V, Advocate
for M/s. Sundaraswamy and Ramdass, Advocates)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to direct in the nature of a writ for
issuing the letter of appointment for the post of Manager (Credit)
to the petitioner as the petitioner has qualified both the written
exam as also interview on the basis of merit and also posses all
necessary qualification prescribed for selection to the post; and
etc.
This writ petition coming on for orders this day, the Court
made the following:
ORDER
With consent of the both the parties, the matter is taken up for final hearing and being disposed of by this order.
2. The petitioner is party-in-person. The prayer of the petitioner is for issue of writ of mandamus to the respondent- Bank for issuing letter of appointment for the post of Manager (Credit). The petitioner submits that the respondent-Punjab National Bank (hereinafter referred to as 'the Bank' for short) issued Notification on 1st August 2012 for online registration and the petitioner registered his application for the post of Manager 3 (Credit) and the petitioner got qualified for interview and appeared before the Bank for selection. He further submits that he was qualified and eligible to be selected to the said post. However, when the select list was published, his name was not found in the select list. In his application, the petitioner claimed his case for consideration by extending relaxation of five years since he was ordinarily domiciled in the State of Jammu and Kashmir during 1st January 1980 to 31st December 1989. He made a request to the Bank by submitting application under Right to Information Act, to furnish the reasons for non-selection of his candidature. The Bank, while issuing endorsement dated 21st March 2013, informed him that he was not found eligible, as he was over-aged as on cut-off date. It has been understood by the petitioner that the reasons assigned for rejection was not relying on the notification issued by the Government of India under Article 309 of the Constitution of India by its notification dated 10th April 1987. In the said Notification, the age relaxation was given to "all" persons who had ordinarily been domiciled in the State of Jammu and Kashmir during the period from 1st January 1980 to 31st December 1989. This Notification, 4 was marked to the Nationalised Banks and Department of Banking. Despite the same, the Bank has not considered his case just by relying upon the notification issued on 9th August 1995 in F.No.5/1/5/92-IR, in which relaxation was provided only to the persons domiciled the Kashmir in the State of Jammu and Kashmir. Hence, the impugned action of the Bank in not extending the relaxation is contrary to law and also to the Notification Annexure-G dated 10th April 1987. Accordingly, he prays for a direction to the Bank in the nature of writ of mandamus for consideration of his case. He further submits that this relaxation of five years has been extended in all the departments of Government, and under these circumstances, refusing to carry out the fiat issued by the Government under Article 309 of the Constitution of India is arbitrary and unconstitutional on the part of the Bank. The petitioner has produced the Official Memorandum issued by Department of Personnel and Training (hereinafter referred to as 'DoPT' for short) in No.15012/2/2010-ESTT(D) dated 10th April 1997. The Notification was with reference to consolidated orders of relaxation in upper age limit allowed to various categories of 5 government service in which at item No.15, the relaxation was extended to persons who have ordinarily been domiciled in the State of Jammu and Kashmir during the period referred in the Notification which was made applicable to Civil service and the posts made through Union Public Service Commission or Staff Selection Commission or otherwise. The age relaxation to all the persons of the State of Jammu and Kashmir is applicable to entire departments of Government and no exclusion or dispensation is made in favour of the Bank. Under these circumstances, the petitioner submits that the action on the part of the Bank is bad in law and unconstitutional; and hence the endorsement issued to that effect is to be set aside. He further seeks a direction to the Bank to issue appointment order. In support of his submission, the petitioner relies upon the judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS v. SH. SOMASUNDARAM VISHWANATH AND OTHERS reported in AIR 1988 SC 2255 and refers to paragraph 6 wherein it has been held that when a statute or the notification under Article 309 of the Constitution is issued and in case if it gets into conflict with the statute or any other executive 6 instructions, the earlier one, i.e. the law made by the appropriate Legislature, will prevail.
3. The respondent-Bank files Statement of Objections. The learned counsel appearing for the Bank submits to dismiss the petition on the following grounds. Firstly, he submits that in the Notification itself it has been specifically stated that the relaxation of age was applicable only to the persons domiciled the Kashmir and since the petitioner is not a domicile of Kashmir, he is not entitled. Secondly, he submits that it is also made clear in the notification that any dispute arising out of the advertisement notification is subject to the sole jurisdiction of the Courts situated at National Capital Territory, Delhi and hence the petitioner should have approached the Courts in Delhi. Having known the fact that the age relaxation was applicable only to the persons domiciled Kashmir, the petitioner has made a representation to the Bank to consider his case by referring notification issued by the Government of India. Under these circumstances, though the petitioner was having knowledge about disentitlement of his candidature but has made application 7 and his application was considered and he was allowed to appear for interview. The petitioner was not selected for reasons that he was over-aged. Nextly, he submits that the Notification relied upon by the petitioner, is not applicable to the Banking Division. Only the directions or orders issued by the Banking Division of the Finance Department are binding on it. The Bank is a nationalized Bank, having its own statute which does not permit for considering any age relaxation to the Jammu Division of the State of Jammu and Kashmir. Notification Annexure-R1 dated 28th June 1995, specifically restricts the relaxation only to the persons domiciled in Kashmir Division. Hence, the petitioner being the domicile resident other than Kashmir, rightly he was not considered. Notification dated 9th August 1995 issued by the Banking Division of Ministry of Finance has been followed for the purpose of appointment in all the Banks and the copy of the same Notification issued to Andhra Bank, Corporation Bank, Punjab and Sind Bank, Union Bank, etc. by Institute of Banking Personnel Selection is applicable to any written examination for recruitment in clerical cadre in Public Sector Banks. All the Banks have followed the Notification of 1995, in which age 8 relaxation is restricted only to the Domicile of Kashmir and hence the Bank has not committed any error, much less contravention of the notification issued to that effect and hence submits to dismiss the petition.
4. Heard both the petitioner and the learned counsel appearing for the respondent-Bank. The Notification dated 10th April 1997 issued by the Bank is extracted hereunder:
"(TO BE PUBLISHED IN PART II, SECTION 3, SUB-
SECTION (1) OF THE EXTRAORDINARY GAZETTE OF INDIA) NO.15012/7/91-ESTT.(D) GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS (DEPATMENT OF PERSONNEL AND TRAINING) ......
New Delhi, the 10th April, 1997 NOTIFICATION G.S.R. 208(E) In exercise of the powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution, and after consultation with the Comptroller and Auditor General of India in relation to the persons serving in the Indian Audit and Accounts Department, the President hereby makes the following rules regulating the relaxation of age limit in favour of the 9 residents of the State of Jammu and Kashmir for appointment to Central Civil Services and Posts, namely:-
1. Short title, commencement and duration:-
(1) These rules be called the Residents of the State of Jammu and Kashmir (Relaxation of Upper Age Limit for Recruitment to Central Civil Services and Posts) Rules, 1997.
(2) They shall come into force on the date of their publication in the Official Gazette.
(3) They shall remain in force till the 31st day of December, 1999.
2. Application:-
These rules shall apply to all Central Civil Services and Posts recruitment to which are made through the Union Public Service Commission or the Staff Selection Commission or otherwise by the Central Government.
3. Relaxation of upper age limit:-
Wherever any recruitment to the services and posts referred to in Rule 2 is made, a relaxation in the upper age limit of five years shall be admissible to all persons who had ordinarily been domiciled in the State of Jammu and Kashmir during the period from the 1st day of January 1980 to the 31st day of December, 1989:
Provided that the relaxation in the upper age limit for appearing at any examination shall be subject to the maximum number of chances permissible under the relevant rules.
4. Certificate regarding proof of residence:- 10
Any person intending to avail of the relaxation of age-limit admissible under Rule 3 shall submit a certificate from-
(a) the District Magistrate within whose jurisdiction he had ordinarily resided; or
(b) any other authority designated in this behalf by the Government of Jammu and Kashmir, to the effect that he had ordinarily been domiciled in the State of Jammu and Kashmir during the period from the 1st day of January, 1980 to the 31st day of December, 1989.
5. Interpretation:-
If any question arises as to the interpretation of these rules, the same shall be decided by the Central Government.
6. Amendment of recruitment rules:-
All rules regulating the recruitment of persons to Central Civil Services and posts including those in the Indian Audit and Accounts Department and the rules governing Competitive Examinations therefore shall be deemed to have been amended to the extent provided for in these rules.
Sd/-
(Harinder Singh) Joint Secretary to the Govt. of India. To 11 The Manager Government of India Press Mayapuri, Ring Road New Delhi.
Copy to:-
1. All Ministries/Departments of the Government of India
2. All State Governments/Union Territories
3. C & AG
4. UPSE
5. SCC
6. Lok Sabha Secretariat
7. Rajya Sabha Secretariat
8. Secretary, National Council (JCM)
9. All attached and sub-ordinate offices of DOP.
10. All Sections
11. 300 spare copies for Estt.(D)
12. Chief Secretary, Government of J&K
13. Principal Information Officer, Ministry of I&B
14. Secretary, Department of J&K
15. Ministry of Railways/Department of Banking/ Department of Public Enterprises/Department of Atomic Energy/Department of Space/Department of Electronics/Department of Non-Conventional Energy Sources to issue similar orders for appointment to posts under their control/Nationalised Banks/Public Sector Undertakings."
5. The petitioner's application has been considered by the Bank and his candidature for the post of Manager (Credit) has been rejected on the ground that he was over-aged as on the cut-off date and his claim for age relaxation was not allowed since he has not domiciled Kashmir in the State of Jammu and Kashmir. The submission of the Bank that despite noticing the 12 fact in the Advertisement Notification, wherein it has been specifically stated that persons like the petitioners are not eligible to make application, even then the petitioner made application; and since his candidature itself is in contravention of notification his case was not considered, cannot be accepted for the following reasons.
6. Before answering the said question what is to be gone into is whether the direction issued under Article 309 of the Constitution of India by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), Government of India vide Notification Annexure-G dated 10th April 1997, is followed by the respondent-Bank or not? This notification is statutory in nature issued under the Constitutional provisions which enables the persons to get benefit of age relaxation of five years for selection, if a person domiciled the State of Jammu and Kashmir during the period 1st January 1980 to 31st December 1989. Since the said Notification of DoPT is issued under the Constitutional provisions, it is applicable to all the Departments, Public Sector Undertakings 13 and to the Banking Division as also the Nationalised Banks, as copy of the same was marked to the Department of Banking Division and to Nationalised Banks as is referred to at item No.15 of the Notification in the "Copy to" list. This marking of the Notification by the DoPT to the effect that age relaxation has to be extended to all the persons who domiciled the State of Jammu and Kashmir during the period between 1st January 1980 and 31st December 1989 shows that the Notification issued is statutory in nature and it applies to all the Nationalised Banks, including the respondent-Bank. The 1995 notification which is referred to by the Bank is an earlier one in which relaxation was restricted only to persons domiciled the Kashmir Division. By virtue of issuance of notification in the year 1997, the earlier one i.e. the notification issued in the year 1995, automatically stands displaced or negated. When that being the position, the respondent-Bank following the earlier notification issued in 1995, which has been negated by virtue of issue of another notification in the year 1997, is bad in law. In the Notification issued in 1997, the purpose and object of extending relaxation to the State of Jammu and Kashmir is self-explanatory. Recruitment 14 and conditions of service of persons serving the Union or State, are being regulated by issuance of Notification under Article 309 of the Constitution of India. The Banking Division, though registered with specific provision, is under the control of Ministry of Finance, Banking Division. Statutorily enforceable Notifications under Article 309 of the Constitution of India are being issued by appropriate Ministry, viz. the Ministry of Personnel, Public Grievance and Pensions (DoPT), and as such it has issued direction to the concerned Departments by marking a copy to the Banking Division also. When such being the case the ground taken by the respondent-Bank that the said notification is applicable only to the Civil service, is to be rejected as one dissipating the entire object of Constitution. The aim and object in relaxing the age limit for the persons domiciled the State of Jammu and Kashmir, is to be taken into account. When that was the object of the Government of India in respect of recruitment to the Departments of Government, it cannot be assumed or presumed by the respondent-Bank that Banks are excluded from extending said relaxation. Under these circumstances, the action on the part of the respondent-Bank in 15 not giving effect to the Notification dated 10th April 1997 is bad in law.
7. Any Notification/s and the direction/s issued by the DoPT is/are applicable to all the Departments of Government including the Nationalised Banks. Age relaxation, whether minimum or maximum, service conditions, pensionary benefits, reservations for Scheduled Castes and Scheduled Tribes, Backward Classes, Minorities, etc. are to be necessarily followed by all the Departments of the Government. If the statement of the respondent-Bank that Notification of 1997 is applicable only to civil service is accepted, it would only result in allowing the respondent-Bank not to obey the directions of the Government of India, which is not permissible under law. The submission of the respondent-Bank that other Public Sector Banks that are referred to above, are not following age relaxation to the persons domiciled the State of Jammu and Kashmir is also bad in law and the same is held to be unconstitutional and arbitrary.
Though other Banks, referred to above, are not made parties 16 here, it is made clear that they have to rectify their mistake forthwith by following the Notification issued in 1997.
6. The next submission of the Bank that the dispute with regard to selection to be resolved only in the jurisdictional courts situated at National Capital Territory, Delhi also cannot be accepted as it would only restrict a person to approach the Court, which sometimes, may be far off from the place where the petitioner is residing and hence will take away the fundamental right to urge and resolve the issue in jurisdictional High Courts. Sub-section (2) of Article 226 of the Constitution of India contemplates that, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. Under these circumstances, the case of the petitioner for consideration of his case is to be accepted. The judgment in the case of SH. SOMASUNDARAM VISWANATH AND OTHERS 17 (supra) relied upon by the petitioner, wherein it has been held if there is a conflict between the executive instructions and the Rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India would prevail and the law made by the appropriate Legislature prevails, would squarely apply in all fours to the instant case. Accordingly it is to be held that the 1997 Notification issued under the provisions of Constitution of India is to be carried out in its letter and spirit by the respondent-Bank and all the Nationalised Banks. In the result, I pass the following:
ORDER
(i) Writ petition is allowed.
(ii) Endorsement dated 21st March 2013 issued informing that petitioner has not been selected because he is over-aged as on cut-off date is quashed. The petitioner shall be given the relaxation of five years as per 1997 Notification and issue appropriate orders within a period of eight weeks from today.18
7. Registry is directed to mark a copy of this order to the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), Government of India for further action at their end.
Sd/-
JUDGE lnn