Wasimuddin vs Uoi And Ors
2011 Latest Caselaw 2687 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 19th May, 2011

+                           W.P.(C) 13816/2009
%        WASIMUDDIN                                          ..... Petitioner
                            Through:      Mr. Haneef Mohd. Advocate.

                                     Versus
         UOI AND ORS                                       ..... Respondents
                            Through:      Mr. B.V. Niren, CGSC with Mr.
                                          Abhishek Goyal, Advocate for R-1.
                                          Mr. Sanjay Bhatt & Mr. Abhishek
                                          Anand, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner seeks a direction to the respondent no.2 IDBI Bank

Ltd. (IDBI) to appoint the petitioner to the post for which he had been

selected i.e. of Assistant Manager Grade-A.

2. Notice of the petition was issued. Counter affidavit has been filed.

The petitioner on 11th January, 2011 stated that he did not wish to file any

rejoinder thereto.

3. The case of the petitioner is that in pursuance to the advertisement

issued by the respondent no.2 IDBI inviting applications for various posts,

he had applied for the post of Assistant Manager Grade-A and had

appeared in the written test held for the said purpose and was vide e-mail

dated 27th April, 2009 of respondent no.2 IDBI directed to appear for

Personal Interview. It is further the case of the petitioner that post

interview, he was vide e-mail dated 21st July, 2009 of the respondent no.2

IDBI "advised" that he had been found "prima facie eligible" for the said

post based on his performance in the Written Test and Interview and that it

had been observed that he had not undergone the pre-recruitment medical

test; the petitioner was therefore advised to report to the designated offices

of the respondent No.2 IDBI for pre-recruitment medical test. Vide another

e-mail dated 22nd July, 2009 the place where the petitioner was to report

for pre-recruitment medical test was changed. It is further the case of the

petitioner that upon so approaching, he was issued a letter dated 23rd July,

2009 authorizing pre-recruitment medical test.

4. This petition was filed because the petitioner was vide another e-

mail also of 23rd July, 2009 informed to ignore the earlier e-mail regarding

medical examination and further informed not to undergo the medical test

and to return the authorization for pre-recruitment medical test to the

respondent no.2 IDBI. It was stated in the said letter that the e-mail asking

the petitioner to undergo medical test had been sent "due to some server

problem".

5. The petitioner in the petition has further pleaded that he had on 23 rd

July, 2009 itself also received call from the „Yes Bank‟ for interview on

23rd/24th July, 2009 and which interview he did not take for the reason of

having been selected in the respondent no.2 IDBI.

6. The respondent no.2 IDBI in its counter affidavit has inter alia

pleaded that the petitioner in the Written Test scored only 54/200 marks;

however, being eligible for Interview, was called for Interview; however,

in the Interview the petitioner scored 39/100 marks while the minimum

qualifying marks for interview were 45 and hence the petitioner was not

selected. It is further pleaded that those who had cleared the Interview

were furnished the letters for medical examination on the date of Interview

itself but the petitioner having not cleared the Interview, no such letter was

issued to him; however subsequently, on review of the short listed

candidates in the Interview it was observed that the medical reports of

some of them had not been received and hence reminder e-mail was sent

on 21st July, 2009 and which mistakenly, owing to error in data entry was

sent to the petitioner also. It is thus the case of the respondents that the

petitioner having not qualified for selection, cannot take advantage of the

e-mail mistakenly sent to him.

7. The counsel for the petitioner has argued that the respondent no.2

IDBI has not filed any documents whatsoever along with its counter

affidavit. It is contended that there is nothing to show that the qualifying

marks for the interview were 45/100. It is further contended that there can

be no qualifying marks for Interview but the counsel is unable to

immediately cite the judgment to the said effect. It is yet further contended

that the discrepancy in the e-mail sent on 23rd July, 2009 and in the counter

affidavit as to the reason for the alleged mistake in sending the e-mail

dated 21st July, 2009 itself shows that the reasons given are false. It is yet

further contended that no particulars of persons to whom the said e-mail(s)

was / were mistakenly sent have been given. It is yet further contended that

the e-mail could not be mistakenly sent owing to defect if any in the server.

The petitioner thus claims that he is entitled to undergo the medical test

and if clears the same, is entitled to the direction for appointment in the

respondent no.2 IDBI.

8. Per contra, the counsel for the respondent no.2 IDBI has urged that

the petitioner has not imputed any mala fides to the respondent no.2 IDBI

or to any of the officials of the respondent no.2 IDBI and in the absence

thereof cannot seek appointment without qualifying therefor.

9. The settled position in law is that even a selected candidate has no

right to insist upon appointment. The applicants in pursuance to such

advertisements inviting applications only have a right of consideration and

do not have any right of appointment. Reference in this regard can be made

to the Constitution Bench judgment of the Apex Court in Shankarsan

Dash Vs. UOI (1991) 3 SCC 47.

10. The writ petition was premised only on the e-mail which the

respondent no.2 IDBI even today has claimed to have been erroneously

sent to the petitioner. Else, the selection process of the respondent no.2

IDBI has not been challenged. Though arguments have been raised as to

the respondent no.2 IDBI having not supported its pleas in the counter

affidavit with any documents but the petitioner chose not to even rejoin to

the said counter affidavit. Without the same, the petitioner, especially in

the absence of any plea alleging mala fides and particulars thereof cannot

controvert the averments in the counter affidavit. There is no reason placed

before this Court for not to believe the said averments. It is not the case of

the petitioner that anyone with marks lower than scored by him or having

less than 45/100 marks in Interview has been selected. It may be noted

that even then, the petitioner would not have secured any right to

appointment as reiterated by the Apex Court in State of UP Vs. Rajkumar

Sharma (2006) 3 SCC 330 holding that even if in some cases

appointments have been made by mistake or wrongly that does not confer

any right on another person.

11. The petitioner cannot claim any right from the mistake of the

respondent in asking him to undergo the medical test. The petitioner as per

the selection criteria was / is not eligible for appointment. The Supreme

Court in Ashok Kumar Sonkar Vs. UOI (2007) 4 SCC 54 held that where

the selection is illegal for the reason of being ineligible to be considered

for appointment, the cancellation of appointment even without affording

any opportunity of hearing is proper inasmuch as in such cases the hearing

would be a futile exercise and a Court of law does not insist on compliance

with useless formalities. Reference may also be made to Central Airmen

Selection Board Vs. Surender Kumar Das (2003) 1 SCC 152 where the

question of whether the principle of promissory estoppel can be invoked or

not in the case of a candidate not eligible for appointment being selected

by mistake contrary to the terms of the advertisement and the rules was left

open, the finding having been returned of selection being illegal owing to

being attributable to the misrepresentation by the candidate.

12. As far as the contention of the counsel for the petitioner that there

can be no minimum eligibility marks for an interview is concerned, the

Supreme Court in Lila Dhar Vs. State of Rajasthan (1981) 4 SCC 159

has held that the observations made in certain judgments relating to

admissions in educational institutions as to the requirement of certain

minimum marks in interview cannot be said to apply to recruitments in

which the suitability of the person for the post and which can be judged in

interview only, is of vital significance. Thus no purpose would be served in

granting time also to the counsel for the petitioner, at this stage sought, for

producing the judgment.

13. There is no merit in the petition; the same is dismissed. No order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 19, 2011 pp