Madras High Court
S.Valaiyapathy vs )The Chairman & Managing Director on 26 March, 2019
Author: J.Nisha Banu
Bench: J.Nisha Banu
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.03.2019
(Reserved on 10.10.2018)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P(MD)No.8188 of 2012
and
M.P(MD)No.2 of 2012 and WMP(MD)No.3498 of 2017
S.Valaiyapathy ... Petitioner
vs.
1)The Chairman & Managing Director,
Indian Overseas Bank,
Central Office,
No.762, Annasalai,
Chennai-2.
2)The General Manager,
Industrial Relations Department/Personnel
Administration Department,
Indian Overseas Bank,
Central Office, Post Box No.3765,
No.762, Annasalai,
Chennai-2.
3)The Senior Regional Manager,
Indian Overseas Bank,
Regional Office,
East Car Street,
Tirunelveli. ... Respondents
http://www.judis.nic.in
2
Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorarified Mandamus, to call for the records
pertaining to the selection list of Special Clerk Assistants finalized by
the respondent No.3 for the year 2011 and quash the same as illegal
and consequently direct the respondent No.3 to appoint the
petitioner to the post of Specialized Clerk Assistant in one of the
identified branches within the time stipulated by this Hon'ble Court
with consequential benefits.
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.K.Srinivsa Moorthy for
Mr.N.G.R.Prasad
ORDER
The prayer in this writ petition is to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the selection list of Special Clerk Assistants finalized by Respondent No.3 for the year 2011 and quash the same as illegal and consequently direct the Respondent No.3 to appoint the petitioner to the post of Specialized Clerk Assistant in one of the identified branches with consequential benefits. http://www.judis.nic.in 3
1. The petitioner is a clerk at the Indian Overseas Bank selected through Banking Service Recruitment Board (hereinafter referred to as, ''BSRB'') in the year 1987. The petitioner holds a B.A degree and had completed 26 years of service with the Bank at the time of filing this Writ Petition. The petitioner is aggrieved at his non selection as Special Clerk Assistant during the vacancy year 2011. It is the grievance of the petitioner that the weightage points earned by him on account of educational qualification and length of service was overlooked in the selection process. The petitioner also alleges that even candidates with SSLC and HSC qualifications found their names in the said selection list. It was also averred that the candidates who got recruited as peons and sub staff, and later confirmed as Clerks, also found their names in the selection list.
2. The petitioner submits that the selection process is highly intrigued as persons with 13 and 15 weightage points could clear the interview while even with 25 weightage points, his name is not cleared in the interview. The petitioner submits that no other public sector http://www.judis.nic.in 4 banks follow the interview process for selecting Special Clerk Assistants. The petitioner alleges that the selection list of successful candidates is consciously notified through the Union Circular with a malafide intention to surpass judicial intervention. Therefore, it was averred that the selection process is arbitrary and without application of mind and Judicial intervention is a bare necessity for correcting the process of selection more transparent and fair.
3. The petitioner had relied on the decision of the Hon'ble Supreme Court in Ajay Hasia etc. vs Khalid Mujib Sehravardi and ors. etc reported in AIR 1981 SC 487 to drive the point that oral interview cannot be relied upon as an exclusive test in matters of college admission and public employment but only as an additional or supplementary test.
4. In contrast, the respondents would aver that Special Clerk Assistant is not a promotional post and is only assignment of duties for which a clerk is given special allowance of Rs.2,180/- per month. It was http://www.judis.nic.in 5 submitted that the selection of the Special Clerk Assistants was governed by the settlement dated 23.10.2002 arrived at by the Bank with the recognized Union and the selection was made strictly in accordance with the procedure agreed in the settlement. They had also elaborated the procedure agreed in the settlement for selection of Special Clerk Assistants in the counter affidavit filed by them.
5. The respondents submit that the candidates double the number of vacancies were shortlisted and called for the interview for the vacancy year 2011. The eligible candidates for attending interview were shortlisted on the basis of the awarding weightage points as agreed in the settlement. The petitioner was also given a weightage of 25 points (24 points for the 24 years of service and one point for graduation). From the eligible candidates short listed on the basis of weightage points, the final Selection was made purely on the basis of the performance in the interview. The petitioner scored 7 marks out of 20 and secured 12th rank in the interview. There were only 10 vacancies and the top 10 rankers in the interview with a score of 8.5 and above were selected for the Special Clerk Assistants for the year 2011. http://www.judis.nic.in 6
6. The respondents agreed that the performance in the interview is the sole determining factor for selection as Special Clerk Assistants. They submit that such a procedure was agreed with a recognized union vide settlement dated 23.10.2002 under the Industrial Disputes Act, 1947. They also submitted that the Selection Committee comprised of the Regional Manager and the Branch Manager of the Main Branch of the Region, who are highly placed officers of the Bank. It was pointed out that the weightage points scored by the candidates were also placed before them. The respondents argued that the petitioner having participated in the selection process cannot challenge the process upon non selection. The respondents denied the allegation of the petitioner that the Bank does not publish the list of selected candidates. The process followed after the interview, from approval of the selected candidates to the communications to the selected candidates were explained by the respondents. It was pointed out that the settlement dated 23.10.2002 is binding on both the bank and the petitioner and therefore, the petitioner cannot find fault with the respondent Bank for strictly following the settlement. They had relied http://www.judis.nic.in 7 on the decision of the Hon'ble Supreme Court in the case of LIC of India Vs DJ Bahadur and others reported in 1981 (1) LLJ 1 in support of the sanctity of settlement under the Industrial Disputes Act, 1947. It was also argued that the Writ Petition is not maintainable for not including the selected candidates as parties to the Writ Petition and reliance was placed on a decision of the Hon'ble Supreme Court in the case of K.K.Nagamani Vs Indian Airlines and others reported in 2009 (5) SCC
515. They had also distinguished the Ajay Hasia decision by relying on the case of Lila Dhar Vs State of Rajastan and others reported in 1981 (4) SCC 159.
7. Heard the counsels. Perused the records. The petitioner is a graduate recruited to the Indian Overseas Bank in the year 1987 through BSRB. The petitioner had since retired. While selecting Special Clerk Assistants pertaining to the vacancy year 2011, the petitioner's name was not cleared while persons who are his juniors in service and persons recruited as peons and sub staff and later confirmed as clerks, got cleared. The petitioner is aggrieved at not finding his name in the http://www.judis.nic.in 8 selection list, has preferred this Writ Petition. The petitioner had alleged bias against him. The petitioner had challenged the very process of selection of solely weighing on the performance in the interview relying on the Ajay Hasia Case. The file concerning the process of selection of Special Clerk Assistants was summoned from the respondents and perused. Perusal of the file indicated that candidates for interview were short listed on the basis of the weightage points of the clerks employed with them. Candidates, twice the number of vacancies were called to attend the interview. A Rank list on the basis of the marks obtained by the candidates in the interview was prepared and the top ten candidates in the rank list were selected and cleared for posting as Special Clerk Assistants. As such, the selection of Special Clerk Assistants was made strictly on the basis of the performance of the short listed candidates in the interview. The petitioner had scored 7 marks out of 20, whereas, the selected candidates scored 8.5 marks and above out of 20. As such, the process followed by the respondents for selecting the candidates for Special Clerk Assistants is found to be in accordance with the settlement dated 23.10.2002 agreed between the Bank and the Union under the http://www.judis.nic.in 9 Industrial Disputes Act, 1947. In the circumstances of the present case, the observations of the Hon'ble Supreme Court in the Lila Dhar Case with reference to the effect of settlement under the Industrial Disputes Act, 1947, the reliance of interview in matters of selections and the references to the decision of Ajay Hasia Case squarely apply to the petitioner's case. Similarly, the decisions relied by them in the case of LIC of India Vs DJ Bahadur and others reported in 1981 (1) LLJ 1 and K.K.Nagamani Vs Indian Airlines and others reported in 2009 (5) SCC 515, support the case of the respondents. There is no second opinion that the settlement dated 23.10.2002 is binding on the petitioner and the respondents. The sole contention of the petitioner regarding the settlement dated 23.10.2002 that the cut off marks or the total marks in interview is not part of the settlement, is neither reasonable nor tenable. Therefore, I have no hesitation to hold that there is no infirmity in the process followed for finalizing the selection list.
8. As for the allegation of bias made by the petitioner against the respondents, I find that the same is vague as no mens rea or mala http://www.judis.nic.in 10 fide is attributed on the part of the respondents. But the perception that how less qualified juniors with entries as peons and sub staff can score better in an interview over a graduate having recruited through competitive exams/interviews conducted by BSRB is reasonable. But that is not reason enough to allege bias and therefore the allegation is unsubstantiated. What transpired in the interview is not available on records. In the absence of the records of interview, the test of transparency and fairness is not possible. Therefore, this Court has no options but to trust the integrity of the selection committee. It is for the stake holders in the settlement to sit and address this issue of transparency in conducting the interviews by agreeing to constitute a bigger selection committee or video record interviews or making the interviews objective.
9. In view of the above discussions, there is no cause for interference by this Court and the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 26.03.2019
Internet : Yes / No
http://www.judis.nic.in
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To
1)The Chairman & Managing Director,
Indian Overseas Bank,
Central Office,
No.762, Annasalai,
Chennai-2.
2)The General Manager,
Industrial Relations Department/Personnel
Administration Department,
Indian Overseas Bank,
Central Office, Post Box No.3765,
No.762, Annasalai,
Chennai-2.
3)The Senior Regional Manager,
Indian Overseas Bank,
Regional Office,
East Car Street,
Tirunelveli.
http://www.judis.nic.in
12
J.NISHA BANU, J
bala
Pre-Delivery order made in
W.P(MD)No.8188 of 2012
26.03.2019
http://www.judis.nic.in