Hitesh Babbar vs Punjab National Bank
2014 Latest Caselaw 3978 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) 4733/2013

                                               Reserved on:       24.07.2014
                                             Date of decision:    28.08.2014

IN THE MATTER OF:
HITESH BABBAR                                             ..... Petitioner
                             Through: Mr. Sameer Jain and
                             Mr. Siddharth Jain, Advocates


                       versus


PUNJAB NATIONAL BANK                                      ..... Respondent
                             Through: Mr. Rajat Arora, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. The petitioner seeks directions to the respondent/Punjab National Bank

(hereinafter referred to as the 'Bank') for his appointment to the post of

Manager (Credit).

2. The facts of the case lie in a narrow compass. On 1.8.2012, the

respondent/Bank had issued an advertisement inviting online applications for

ten posts, including that of Manager (Credit). As per the aforesaid

advertisement, the applicants were to register online between 1.8.2012 to

17.8.2012. The tentative date of the written examination was fixed as

14.10.2012 and the written test was to be followed by a personal interview.

The educational qualification prescribed for the post of Manager (Credit) was

as follows :-

"Any of the following :-

a) CA/ICWA OR

b) MBA/PGDM with specialization in Finance only with minimum of 75% marks in aggregate and consistent 60% or above marks from Sr. Secondary onwards.

The MBA/PDGM course should be :-

 From the University recognized by Govt. of India/AICTE approved.

 Regular and not from Distance Education Mode.  With single specialization."

3. It is an undisputed position that the petitioner had qualified in the

written examination and was called by the respondent/Bank for a personal

interview on 5.12.2012. However, the respondent/Bank did not declare the

petitioner as one of the successful candidates. Adopting the RTI route, the

petitioner sought information from the respondent/Bank as to the total

number of marks scored by him in the written test, the marks obtained in

the personal interview and the reason for his disqualification.

4. Vide letter dated 28.5.2013, the respondent/Bank conveyed the marks

that were scored by the petitioner in the written test and the personal

interview, and stated that the reason for turning down his candidature for

the post of Manager (Credit) was that he was ineligible as he possessed a

Post Graduate Diploma in Management (PGDM) with dual specialization in

Finance and Marketing. In other words, as against the educational

qualification prescribed for a candidate applying for the post of Manager

(Credit), i.e., "MBA/PGDM with specialization in Finance only", the

petitioner's specialization was in "Finance and Marketing". Aggrieved by the

refusal on the part of the respondent/Bank to appoint him to the post of

Manager (Credit), the present petition has been filed.

5. Mr. Sameer Jain, learned counsel for the petitioner argued that refusal

on the part of the respondent/Bank to appoint the petitioner to the post of

Manager (Credit) is on account of gross non-application of mind inasmuch as

the Bank had failed to take into consideration the fact that when undertaking

the course of Post Graduate Diploma in Management, the petitioner had

studied more subjects of Finance than a person holding a single

specialization in Finance had studied. For purposes of comparison, he had

referred to the petitoner's mark sheet along with the Curriculum of the

subjects studied by him in the course of PGDM (Annexure-P-5 (colly), vis-à-

vis the sample marksheet of a student by the name of Atishay Jain, having a

single specialization in Finance from the very same Institute/University. He

also pointed out that despite the fact that a candidate by the name of Ms.

Meenu Gajrani, who had undertaken PGDM course from Punjab Technical

University, Jalandhar had a dual specialization in Finance and Marketing

just as the petitioner herein, she had been selected to the post of Manager

(Credit). It was thus contended that the respondent/Bank had willfully

discriminated against the petitioner and on 21.8.2013, a false statement had

been made in Court to the effect that no candidate having specialization in

both, Finance and Marketing, was selected, which is incorrect.

6. It was further argued by learned counsel for the petitioner that if the

respondent/Bank was of the opinion that the petitioner was ineligible on the

basis of his educational qualifications, then he ought not to have been

permitted to sit for the written test and subsequently, participate in the

personal interview, as it had raised false hopes. It was lastly asserted that

the petitioner possesses dual qualification in Finance and Marketing and the

respondent/Bank could not have rejected his candidature merely because of

his over qualification. In support of the said submission, learned counsel

had relied on the decision of the High Court of Karnataka in the case of

Prabhu vs. Life Insurance Corporation of India, reported as ILR 1995 Kar.

155.

7. On the other hand, Mr. Rajat Arora, learned counsel for the

respondent/Bank opposed the present petition and sought to justify the

decision of the Bank to turn down the candidature of the petitioner for the

post of Manager (Credit) on the ground that he did not possess the requisite

educational qualification in terms of the advertisement dated 1.8.2012. He

stated that as per the documents submitted by the petitioner, in the year

2010-12, he had undertaken a PGDM course at the Institute of Management

Technology, Nagpur, where his specialization was in Marketing and Finance

and while completing the said course, he had spent time in studying both

the subjects, i.e., Finance and Marketing and not Finance alone. Thus half of

his time was spent on studying the subject of Marketing and the remaining

time in studying Finance, whereas a candidate, who has a specialization in

Finance only, would have studied the subject of Finance exclusively during

the said period. He referred to the mark-sheet of one Atishay Jain enclosed

with the writ petition as a sample marksheet, to contend that the said

candidate had a total of 120 credits in the subject of Finance, vis-à-vis the

petitioner herein who has 120 credits in the subjects of Finance and

Marketing and this itself would bear a testimony to his submission that the

former had more specialization in subjects relating to Finance, which was the

qualification prescribed by the respondent/Bank for the subject post.

8. It was next submitted on behalf of the respondent/Bank that the

specialization certificate issued by the concerned University/Institute, that

mentions the field/specialization of a candidate, is a document that is

considered as authentic and is accepted by the respondent/Bank and on its

own, the Bank does not scrutinize the marksheet of each candidate to verify

as to whether his/her specialization is in a particular field or not. Nor does

the respondent/Bank question the certificate issued by the concerned

institute.

9. As for the reference made by the petitioner in his additional affidavit

dated 20.1.2014, to Ms. Meenu Gajrani, a candidate selected by the

respondent/Bank for appointment to the post of Manager (Credit), learned

counsel for the respondent/Bank pointed out that the said candidate had

completed her MBA with specialization in Finance and the said fact is duly

reflected from the certificate issued in her favour by the Punjab Technical

University, Jalandhar, which was duly accepted by the Bank. He argued that

the petitioner himself claims that in the last Trimesters of the PGDM course,

he had the option to choose fifteen specialization courses and when

exercising the said option, he had opted for ten courses in finance and five

courses in marketing, which would reinforce the respondent's stand that the

petitioner's specialization was not in Finance exclusively as claimed by him.

10. Great stress was laid by the learned counsel for the respondent/Bank

on the words used in the column of "educational qualification" in the

advertisement issued for inviting applications for the post of

Manager(Credit), where the requirement stated was of a candidate having

undergone "MBA/PGDM course with specialization in Finance only". He stated

that when the Bank had specifically mentioned that the educational

qualification required for the post of Manager (Credit) was "CA/ICWA or

MBA/PGDM with specialization in Finance only", the petitioner cannot claim

that he is "overqualified" for the job and instead, it is a case where he does

not meet the criteria laid down in the advertisement and therefore, his

candidature for the post in question was rightly rejected by the Bank.

11. In support of his submission that the Court cannot overlook the

requirements specified by the selecting authority and that such a matter

ought to be left to the employer, who would be the best judge to examine

the eligibility of a person to be appointed to a specialized post, learned

counsel for the respondent/Bank had cited a decision of the Supreme Court

in the case of Rajya Sabha Secretariat & Ors. Vs. Subhash Baloda & Ors.,

reported as 2013 LAB. I.C. 2612 (SC).

12. The Court has perused the records, heard learned counsels for the

parties and carefully considered the arguments advanced by them. The

limited issue raised in the present case is that when the educational

qualification prescribed by the selecting authority for the post of Manager

(Credit) is "MBA/PGDM with specialization in Finance only", whether a dual

specialization in Finance and Marketing, as possessed by the petitioner

herein, can be treated as a specialization in Finance for claiming entitlement

to be appointed to the subject post advertized by the respondent/Bank.

13. The ancillary issue is as to whether in exercise of its powers of judicial

review, the Court should accept the certification of the petitioner as awarded

by the concerned Institute/University or go behind the same to scrutinize the

details of the courses opted by him in all the six terms, for arriving at a

conclusion as to whether his qualification would meet the norms for the

subject post, as prescribed by the respondent/Bank.

14. It is an undisputed position that in the Institute of Management

Technology, Nagpur, from where the petitioner had studied, out of six

Trimesters in the MBA/PGDM course, the first three trimesters have a

common course content and it is only in the last three Trimesters that a

student is given an option to choose fifteen specialization courses. As per

the Curriculum of the subject course, in Term-IV, a student is required to

choose a total of seven elective courses from the options available, as per

the area of his specialization; in Term-V, a student is required to choose a

total of five elective courses from the options available, as per the area of

his specialization and in the last and final semester, i.e., in Term-VI, a total

of three elective courses are required to be chosen from the list, as per

specialization. Under the head of "Specialization Courses", the Curriculum

mentions that a student is required to specialize in any of the areas

mentioned under Terms IV, V and VI and he needs to take at least five full

credit courses in the respective chosen areas.

15. Learned counsel for the petitioner had also referred to the petitioner's

marksheet a perusal whereof reveals that in Term-IV, out of eight courses,

he had opted for five courses in Finance, two in Management and one in

Corporate Governance, in Term-V, out of seven courses, he had elected to

undergo four courses in Finance, two in Management and one in Corporate

Governance and in Term-VI, out of three courses, he had selected one

course in Finance, one in Management and one in Corporate Governance.

Thus, out of fifteen specialized courses (Term-VI=7, Term-V=5 and Term-

VI=3), the petitioner had opted for ten courses in Finance and five in

Marketing.

16. When the curriculum of the subject course is examined closely, it

transpires that in Term-IV, where a student had an option of choosing seven

elective courses from the subject of Finance, the petitioner had chosen five

courses in Finance; in Term-V, out of a total of five elective courses offered

in Finance, the petitioner had elected four courses in Finance and in Term-

VI, where a student could have opted for three elective courses in Finance,

the petitioner had opted for only one course in Finance. In other words,

when there were options available to the petitioner in Terms-IV, V and VI to

select fifteen courses in Finance, he had opted to select ten courses in

Finance and the remaining in the other subject specializations. Based on the

specializations opted for by the petitioner, the Institute had awarded him

dual specialization in Finance and Marketing. In direct contrast to the above,

the mark-sheet of Atishay Jain, who had undergone PGDMA from the very

same Institute, reveals that in Terms-IV, V and VI, the said student had

opted for eight courses in Finance, three in Operation and Management and

four in Marketing and yet the Institute had ranked his specialization as

Finance.

17. It has been consistently held by the Supreme Court and different High

Courts that it is the employer, who is entitled to specify the educational

qualifications or the qualifying standards for appointment or recruitment to

be made by it and the discretion exercised by the employer in stipulating

such norms and standards cannot be assailed. In the case of J. Ranga

Swamy vs. Government of Andhra Pradesh and Ors. reported as (1990) 1

SCC 288, the question that arose for consideration before the Supreme

Court was with regard to appointment to the post of Professor in Radiological

Physics. The appellant before the Supreme Court possessed a Diploma in

Radiological Physics from Bhabha Atomic Research Centre and claimed that

his was the better qualification than that of Doctorate in Nuclear Physics,

which was prescribed as the qualification for the said post by the appointing

authority. The Supreme Court had repelled the aforesaid contention of the

appellant and held that it is not for the Court to consider the relevance of

qualifications prescribed for various posts or to assess comparative merits of

such a doctorate and the BARC Diploma held by the appellant, for deciding

or directing as to what should be the qualifications to be prescribed for the

subject post. Rather, it was for the concerned authority to consider and take

a final decision in the matter. Resultantly, the claim of the appellant therein

was negated on the ground that he did not possess the requisite

qualifications.

18. In the case of Govt. of Orissa vs. Hanichal Roy and Ors. reported as

(1998) 6 SCC 626, the Recruitment Rules in question empowered the State

Government to relax the provisions of the said Rules. Instead of directing

the State Government to consider the matter of relaxation in terms of the

powers vested in it, the Orissa Administrative Tribunal had proceeded to

relax the provisions of law. While examining the decision of the Tribunal,

the Supreme Court held that the question of relaxation of the provisions of

law did not fall within the domain of the Tribunal and it was the State

Government, which was the competent authority to consider such a

relaxation. As a result, the order of the Tribunal was set aside and the State

Government was directed to consider the question of relaxation.

19. Thus, it would be seen that the settled legal position is that when the

qualifications are prescribed by the employer or the concerned Recruitment

Rules provide for a requisite qualification and a question arises as to whether

any other qualification is equivalent to the qualification prescribed or not,

then such a question has to be decided by the competent authority and the

Court cannot amend/modify the rules or the prescribed qualification for the

simple reason that the power of judicial review in such matters is very

limited.

20. In the present case, learned counsel for the petitioner had referred to

the Curriculum of the subject course and the petitioner's mark-sheet and

insisted that the subject specialization of Finance and Marketing as was

certified by the Institute, where he had undertaken PGDM course should be

recognized as equivalent to specialization in Finance. While advancing the

aforesaid arguments, learned counsel has overlooked a vital point which is

that showing equivalence by way of comparison is not enough. What is of

relevance, is being recognized as equivalent. In the case of Director of AIIMS

vs. Nikhil Tandon reported as (1996) 7 SCC 741, the Supreme Court had

emphasized that recognition of equivalence has to be by a general

order/proceeding published for the information of all concerned and it could

not be a matter to be decided in a given case, specifically for the purpose of

the said case. On the same analogy, simply because the petitioner herein

contends that he is a meritorious student and holds a double specialization

in Finance and Marketing, would not be sufficient for the Court to overlook

the certificate issued by the Institute, where he had undertaken the subject

course. The said certificate specifies that the specialization undertaken by

the petitioner was in the subjects of "Finance and Marketing" and not

"Finance exclusively", which happens to be the prescribed educational

qualification for the post of Manager (Credit).

21. The Court finds merit in the submission made by the counsel for the

respondent/Bank that the Bank does not undertake the process of

scrutinizing the mark-sheet of each and every candidate for verifying his

specialization in a particular field and instead, unqualifiedly accepts the

specialization certificate issued by the concerned University/Institute. In the

opinion of this Court, any other method adopted by the respondent/Bank to

satisfy itself with regard to the prescribed educational qualification of a

candidate would have given rise to illegalities as in such an eventuality, it

would be left to the subjective satisfaction of the respondent/Bank to

interpret the mark-sheet of each candidate or to compare the same with the

mark-sheet of other candidates, which would have its own perils and pitfalls.

22. In the opinion of this Court, the judgment in the case of Prabhu

(supra) relied upon by the learned counsel for the petitioner to urge that the

petitioner's over qualification cannot disentitle him for appointment to the

subject post, would not be of any assistance for the reason that in the

aforesaid case, the Court was examining a situation where if the applicant is

over qualified for the post for which he applies, would the employing agency

be justified in rejecting the said application on the ground that the

prescribed qualifications for the post were lower than those that the

applicant possessed. Unlike the facts of the aforesaid case, where the

respondent/employer claimed that the petitioner therein was over qualified

for the post of Sub-Staff, in the present case, it cannot be urged that the

petitioner is over qualified for the subject post. Rather, it is a case of non-

fulfillment of the prescribed qualifications. Here, the prescribed qualification

for the post of Manager (Credit) was "MBA/PGDM with specialization in

Finance only", whereas the petitioner herein holds dual specialization in

Finance and Marketing, which was not in conformity with the terms of the

advertisement. Therefore, the rejection of the petitioner's candidature was

not on account of his being over qualified, but because he did not possess a

specialization in Finance only.

23. Moreover, the petitioner has not been able to demonstrate that there

was any departure from the requirements advertised. The respondent/Bank

had adopted a uniform procedure for recruiting all the candidates.

Reference made by the learned counsel for the petitioner to the appointment

of Ms. Meenu Gajrani to the post of Manager (Credit) is misplaced for the

reason that the certification issued by the Punjab Technical University,

Jalandhar, from where the aforesaid candidate had undertaken the course of

PGDM, clearly mentions that her specialization was in the subject relating to

Finance, which was duly accepted by the respondent/Bank just as it had

accepted the certificate issued in the case of the petitioner herein. It is

settled law that when a uniform process has been adopted in respect of all

the candidates and based thereon, selections have been made, it is not

appropriate for the Court, in exercise of its powers of judicial review, to

examine the matter for further details by comparing equivalence as that

would tantamount to the Court imposing its own interpretation of the

requirements of the selection process on the respondent/employer, which is

impermissible. As was observed by the Supreme Court in the case of

Subhash Baloda (supra), it is not the job of the Court to substitute what it

thinks to be appropriate for that which the selecting authority has decided as

desirable and while taking care of the rights of the candidates, the Court

cannot lose sight of the requirements specified by the selecting authority.

24. The contention of the learned counsel for the petitioner that if the

respondent/Bank was of the opinion that the petitioner was ineligible to

apply on the basis of his educational qualifications, then he ought not to

have been permitted to sit for the written test, much less participate in the

interview, is found to be untenable. The advertisement inserted by the

respondent/Bank for inviting online applications for ten posts including that

of Manager (Credit) reflects that the candidates were required to submit

their online forms for registration between 01.08.2012 to 17.08.2012; the

tentative date of the written examination was 14.10.2012 and upon the

candidates clearing the written examination, were they to be called for the

interview. It was only if a candidate was called for the interview, was he

required to submit his mark-sheet and the provisional certificate/degree

issued from the concerned University. At the stage of submitting the online

application for registration, the respondent/Bank could not have had the

opportunity to scrutinize the certificates/degrees issued in favour of the

candidates. The stage for examining the said documents would arise only at

the time when the candidate would be called for the interview. Thus, it

cannot be urged that the petitioner was put to any disadvantage merely

because he was permitted to sit for the written test and was subsequently

called for the interview.

25. Another aspect that this Court must be cognizant of is that if any relief

is extended to the petitioner herein, then it would cause injustice to several

other faceless candidates, who are not before the Court and who did not

submit their applications for being appointed to the post of Manager (Credit)

on the bonafide belief that they did not possess the prescribed educational

qualifications of MBA/PDGM with specialization in Finance only. They would

thus be deprived of a chance of selection and appointment if the Court

chooses to interpret the educational qualification differently for the petitioner

alone. Merely because the petitioner herein has acquired dual specialization

in Finance and Marketing in the PGDM course would therefore not be enough

to hold that he qualifies as per requirement advertised by the selecting

authority, i.e., the respondent/ Bank. Nor would sympathy be a

determinative factor or a source of guidance for interpreting the law. As was

observed by the Supreme Court in the case of HUDA vs. Roochira Ceramics,

reported (1996) 6 SCC 584, personal justice is not a ground to give relief

under Article 226 of the Constitution of India and in the absence of any

procedural irregularity, the Court must abstain from exercising its powers of

judicial review. Admittedly, the petitioner does not possess a certification

from the Institute, where he has undergone the course of PGDM, for

categorizing his specialization as one in "Finance only" and the

respondent/Bank did not specify specialization in Finance and Marketing for

the subject post. On the prescribed qualifications as they stand, the

petitioner cannot be held to be eligible for appointment to the subject post

and cannot legitimately complain against his non-selection.

26. In view of the forgoing discussions, this Court is of the opinion that

when it comes to examining as to whether for the subject post, the source of

recruitment should be from the candidates with the prescribed qualification

of CA/ICWA or MBA/PGDM with specialization in Finance only, it being a

matter of recruitment policy, the same lies exclusively in the domain of the

Selecting Agency. It is not for this Court to assess the comparative merits of

the PDGM course with specialization in Finance vis-à-vis the specialization in

Finance and Marketing as possessed by the petitioner, or to consider the

relevance of the qualifications prescribed by the respondent/Bank for the

subject post to arrive at a different conclusion.

27. As a result, the present petition fails and the same is dismissed, while

leaving the parties to bear their own costs.

                                                          (HIMA KOHLI)
AUGUST      28 , 2014                                        JUDGE
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