Bombay High Court
Suman Mondal vs The State Bank Of India Service ... on 19 April, 2023
Bench: Sandeep V. Marne
2023:BHC-OS:3197-DB
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TRUSHA IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TUSHAR ORDINARY ORIGINAL CIVIL JURISDICTION
MOHITE
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2023.04.20
18:15:20 +0530
WRIT PETITION NO.2964 OF 2022
Suman Mondal ..... Petitioner
Vs.
The State of Maharashtra and Ors. ..... Respondents
Ms.Kavisha Shah a/w Mr.Hamza Lakhani and Ms.Mehali
Mehta for the Petitioner
Mr.Abhijeet A. Joshi a/w Ms.Varsha Sawant for the
Respondents
CORAM: S.V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE,J.
DATED : APRIL 19, 2023
P.C.
1 The Petitioner was selected for the post of
Probationary Officer from OBC category. The Petitioner
was supposed to pass the confirmation test. The Petitioner
failed once. The Petitioner was given another opportunity
to pass the confirmation test. The Petitioner could not
secure minimum 50% marks in the second confirmation
test. The Petitioner is terminated from service. The
Petitioner assails the same.
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2 The learned Counsel for the Petitioner strenuously
contends that the Petitioner is appointed from OBC
category. The Respondents have nowhere suggested that
for the confirmation test, an OBC candidate should obtain
minimum 50% marks. The Circular was never brought to
the notice of the Petitioner at any material point of time. In
view thereof, the Respondents cannot rely upon the internal
circular to contend that the Petitioner ought to have
obtained minimum 50% marks. The learned counsel to
substantiate her contention relies upon the judgment of the
Apex Court in the case of P.V. Indiresan (2) vs. Union of
India and Others1. The learned counsel further contends
that the last candidate called for consideration pursuant to
the advertisement from OBC category had secured 44.43%
marks. As such, the same was required to be considered as
a bench mark. The Petitioner in the confirmation test has
secured 48.83% marks. In view thereof, it was an error on
the part of the Respondents in terminating the services of
the Petitioner only on the ground that the Petitioner failed
to secure 50% marks in the confirmation test.
3 Mr.Joshi the learned Counsel for the Respondents
1 (2011) 8 SCC 441
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relies upon the Circular to contend that for confirmation in
JMGS, qualifying marks in the written test should be 50%
and only for candidates from SC, ST and PWD, the bench
mark is relaxed to 45%.
4 We have considered the submissions. It is not
disputed that the Petitioner could not secure 50% marks in
the confirmation test conducted after completion of two
years of service. The Petitioner was provided with two
opportunities to clear the confirmation test. After the first
confirmation test was undertaken and the Petitioner did
not clear the same, she was given further opportunity to
clear the confirmation test within six months. In the second
confirmation test also she could not achieve 50% marks.
The contention of the learned Counsel for the Petitioner
that during the selection process pursuant to the
advertisement, the OBC candidate securing 44.43% marks
was also called for the test and / or the interview and as
such, the same could be considered as cut off marks to be
obtained in the confirmation test, does not stand to reason,
as the argument cannot be countenanced. The candidates
were called in the ratio 1:20. To maintain the said ratio, the
candidates were called. That would not mean that for the
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confirmation test, the same cut off marks have to be applied.
5 The Circular of the bank dated 09.06.2011 is
unambiguous. It states that the first confirmation test will
be conducted after 18 months of probation. For
confirmation in JMGS 1, qualifying marks in the written
test will be 50%. Relaxation is provided for the candidates
from SC, ST and PWD. They have to secure 45% marks. The
Petitioner belongs to OBC for which the qualifying marks
are 50%. Clause (iv) of the Circular further provides that a
candidate who fails in the first confirmation test, his
probation would be extended by six months and candidate
would be required to appear for the second test to be
conducted within six months of the first test.
6 Clause (v) of the circular further states that in case
the candidate fails in the second test, in respect of
Probationary Officers, their services will be terminated. The
Petitioner admittedly was Probationary Officer (PO). She
failed in the second confirmation test also. As such her
services were terminated.
7 Reliance placed by the learned Counsel for the
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Petitioner on the judgment of the Apex Court in the case of
P.V. Indiresan (2) (Supra) would not enure to the benefit of
the Petitioner inasmuch as the Apex Court in the said case,
was concerned with the admission of the candidates. The
Apex Court observed that if the total number of seats in a
course is 154 and the number of seats reserved for OBCs is
42, all the seats should be filled in by OBC students in the
order of merit from the merit list of OBC candidates
possessing the minimum eligibility marks prescribed for
admission. When an eligible OBC candidate is available,
converting an OBC reservation seat to general category is
not permissible. Thus, the consideration before the Apex
Court in the said case was completely different.
8 In the present case, the Petitioner could not secure
50% marks in the first confirmation test. It was brought to
the notice of the Petitioner that though she was given an
opportunity after six months to clear the second
confirmation test. The Petitioner appeared for the second
confirmation test and after taking the benefit of the second
confirmation test, the Petitioner is now agitating about the
bench mark having not brought to the notice of the
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Petitioner. The Petitioner would not be entitled to plead the
same as the Petitioner had already appeared for the
confirmation test and failed to secure the bench mark.
Though she was given one more opportunity and she failed
in the said opportunity as well.
9 In light of the above, no relief can be granted to the
Petitioner .
10 Writ Petition is disposed of. No costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
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