Mohd. Irshad vs Dena Bank & Ors.
2011 Latest Caselaw 364 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

              WRIT PETITION (CIVIL) NO.13822 of 2009

                                     Date of Pronouncement: 21-01-2011

MOHD. IRSHAD                                      .....Petitioner
         Through:          Mr. M.S.Bhatia, Advocate

                      Versus

DENA BANK & ORS.                .....Respondent
         Through: Mr. Rajat Arora, Advocate

CORAM:
  HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


1.     Whether Reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the Reporter or not?     Yes
3.     Whether the judgment should be reported in the Digest? Yes


SUDERSHAN KUMAR MISRA, J. (ORAL)

1. It is the case of the petitioner that pursuant to an

advertisement by respondent no. 1 for filling up of regular vacancies

for the post of "Probationary Officers" (JMG SCALE -I), the petitioner

applied for the same as an OBC candidate and was also invited to

appear for the pre-examination training for recruitment to the

aforesaid post. The selection process, admittedly, included a written

test (Descriptive and Objective) and an interview. The petitioner got a

call letter from the respondents stating that the written examination is

to be held on 21st September, 2008. In the "Acquaint Yourself" booklet

received by the petitioner along with the call letter, it is stated in the

last paragraph of page 11:

"Candidates have to pass in each of the objective and descriptive test separately. Those candidates who secure the minimum qualifying marks stipulated for the written test (descriptive test as well as objective) shall be called for interview in "order of merit in the ratio of up to 1:4 (1:5 in case of SC/ST/OBC/PWD candidates)"

2. The petitioner took the written examination. He claims to

have made repeated telephone calls to the respondents enquiring

about the examination results, but failed to get any positive response

from them. He states that on 10th August, 2009, he then filed an

application under the RTI Act seeking information about his position in

the merit list and the marks obtained by him as well as the list of

selected candidates and the marks obtained by them. In the reply to

the application, dated 14.09.2009, the petitioner was informed that he

had not figured in the merit list as he was absent for the interview. It

is the case of the petitioner that he was never informed about or called

for any interview.

3. In its counter affidavit, the respondent submits that the

relief sought for cannot be granted to the petitioner in view of the fact

that the petitioner was never appointed or recruited by the respondent

bank and therefore, the question of resumption of duties cannot arise.

The respondent further alleges that the petitioner is guilty of

suppression of the material fact that a letter dated 3 rd November, 2008

was sent to the petitioner, whereby, he was called for an interview on

21st November, 2008. Therefore, the contention raised in the petition

that the petitioner was unaware of the interview is without any

substance.

4. Counsel for the respondent also submits that there has

been an unusual delay on the part of the petitioner in approaching the

Court and therefore, the petition has become infructuous. Pursuant to

the written examination as well as the interview, the recruitment

process had already been carried out and completed by the respondent

bank and all the vacancies have been filled up. Therefore, the present

writ petition, filed after a year of the said recruitment process was

over, is barred by laches.

5. Counsel for the respondent further submits that the call

letter regarding the written examination had a clear noting at the

bottom which, inter alia, stated that the roll numbers of the candidates

who qualify for the interview would be notified on the website of the

respondent bank in due course. It was also mentioned therein that the

candidates who qualify for the interview would be intimated directly

also and that the bank was not responsible for any delay or loss in

transit of such communication. The petitioner was, thus, well aware

that he could check whether he was selected or not from the website

of the bank. It is also pointed that the list of successful candidates who

were to appear for the interview was put up on the website of the bank

on 4th November, 2008 and the same remained on display till 4 th

December, 2008. He further states that, in fact, besides putting up

the list of successful candidates who were called for the interview on

the website of the bank, individual call letters were also issued to the

successful candidates. The petitioner was individually informed about

the interview, to be held on 21st November, 2008, vide letter dated 3 rd

November, 2008. This interview letter was sent at the same address

under UPC where the initial call letter for the written examination was

sent.

6. In its rejoinder, the petitioner reiterated that the petitioner

was never informed about the scheduled date of the interview and also

denied the allegation that there has been an inordinate delay in filing

the writ petition. He explains the delay on the ground that when the

petitioner did not get any response from the respondent inspite of the

repeated telephone calls, he filed an application under the RTI Act,

which according to him, shows that he had been vigilant and had not

been sitting idle.

7. Admittedly, pursuant to an advertisement, the petitioner

applied for the post of Probationary Officer in the respondent bank and

got the call letter for the written examination scheduled to be held on

21st September, 2008. Consequently, the petitioner took the written

examination, and pursuant to that, and presumably because he was

successful in the same, a letter dated 3 rd November, 2008 was also

sent to him by the respondent calling him for the interview to be held

on 21st November, 2008. It is the petitioner's case that this call letter

for the interview never reached him. He also states that dispatch

through UPC is not a valid and prescribed mode of service, and the

prescribed mode of service should have been either by email or by

SMS. However, he has failed to show any such prescription. On the

other hand, counsel for the respondent states that this letter had been

dispatched through UPC to all the candidates, including the petitioner.

8. The footnote at the base of the call letter sent to all the

candidates selected for the written examination including the

petitioner, states as follows :

"Note: The Roll Numbers of candidates who qualify for interview will be notified on website www.denabank.com in due course. The candidates who qualify for interview will be intimated directly. Bank/IBPS will not entertain any correspondence in this regard. The bank is not responsible for any delay/ loss in transit of the communication."

A perusal of the above clearly shows that the respondent

bank was obliged to notify the result on its website which could be

accessed by any interested party. Furthermore, candidates were also

to be intimated directly by the respondent bank. There was no further

limitation on the mode of communication to be adopted by the

respondent. Under the circumstances, the respondent had adopted

UPC as the direct mode of communication. The respondent has also

annexed a copy of the receipt showing the dispatch by the UPC to 40

candidates in different States such as Uttar Pradesh, Bihar, Haryana,

Punjab, besides Delhi. The petitioner's name appears at Serial No. 21.

The receipt shows that it was dispatched on 7th November, 2008.

9. Counsel for the petitioner seems to think that the mode

and method of "service" as prescribed by statute and rules with regard

to the court's process, must automatically apply to the respondent

bank's obligation to intimate the petitioner of the date of interview.

Based on this premise, he submits that service through UPC is not a

valid service in law and that there is some additional obligation

imposed on the respondent to, "serve", the petitioner with the

intimation for the interview. According to him, the intimation in

question should have been given through email or by SMS. I do not

agree. This matter is not concerned with the service of court

processes. The obligation of the bank was limited to the note

appended at the bottom of the aforesaid call letter inviting the

petitioner to take the written examination. In terms thereof, two

modes were prescribed. By posting on the Bank's website and by,

"Direct" intimation. Apart from publishing it on its website, direct

intimation was sent by the Bank to all candidates, including the

petitioner, through UPC. Significantly, the intimation in question was

sent by the Bank at the same address, and by the same method, as

the initial communication inviting the petitioner for written

examination, which he admittedly received. The arrangements made

by the Bank in this regard were even otherwise reasonable and

rational and I can find no infirmity in this behalf.

10. Furthermore, the relevant interview was held on 21 st

November, 2008 and by 25th November, 2008 the recruitment process

had been completed. However, the petitioner filed this petition only in

December, 2009, i.e. more than a year later. In Chandra Sain v. The

Chairman, D.S.S.S. Board & Anr., Writ Petition (Civil) No.

1854/2008, decided on 10th March, 2008, the petition was dismissed

by this Court on the ground that the petitioner waited for more than a

year before approaching this Court , by which time all the vacant seats

had been filled up and the recruitment process was complete.

11. Under the circumstances, and keeping in mind the maxim,

Vigilantibus, et non dormientibus, jura subveniunt - the vigilant

and not the sleepy are assisted by the laws, it would not be

appropriate for this Court to entertain this petition at this stage, that

too when the relevant interview had already been held almost a year

ago and all the vacancies that were there have been filled up. The

allegation of having made repetitive phone calls to the Bank, or having

applied under the Right to Information Act in connection with his

candidature, do not improve the petitioner's case in this regard.

12. For the aforesaid reasons, besides being barred by laches,

I also do not find any merit in this petition. The relief sought cannot

be granted in the exercise of this Court's jurisdiction under Article 226

of the Constitution of India.

13. Dismissed.

CM No.15642/2009 (Stay)

14. Since the main petition has been dismissed, this

application does not survive and the same is also dismissed.

SUDERSHAN KUMAR MISRA, J.

JANUARY 21, 2011