Bank Of Baroda vs Susmita Saha
2019 Latest Caselaw 1774 Del

$~1
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Reserved on:        21.02.2019
                                        Pronounced on:      29.03.2019

+      W.P.(C) 2143/2018 & CM APPLN. 8876/2018
       BANK OF BARODA                                      ..... Petitioner
                   Through              Ms.Praveena Gautam, Adv. with
                                        Mr.Jitesh P. Gupta, Mr.Pawan Shukla
                                        & Mr.Raja Ram, Advs.

                          versus

       SUSMITA SAHA                                     ..... Respondent
                          Through       Mr.Shashank Khurana, Adv.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                   JUDGMENT

1. Vide the present petition, petitioner/Bank of Baroda seeks direction

thereby setting aside order dated 24.10.2017 passed in case no.

7776/1024/2017 by the learned Chief Commissioner for person with

Disabilities, Delhi.

2. The case of the petitioner is that the petitioner issued an advertisement

for the year 2014-2015 (13th Batch) for candidates seeking admission to one

year Post Graduate Diploma in Banking and Finance (PGDBF), through

Baroda Manipal School of Banking (BMSB), and subsequently,

appointment in the Bank‟s Service as Probationary Officer in JMG/S-I cadre

on successful completion of the said diploma and after fulfilment other

eligibility criteria. The aforesaid appointment was subject to completion of

course within one year from the date of admission (nine months classroom

training and three months internship) after regular period of twelve months

and by clearing all the back-papers, if any, within a maximum period of

three months or one additional attempt. Accordingly, the respondent applied

online for the aforesaid diploma course under the physically handicapped

category and was declared successful by the petitioner bank. The respondent

accepted the offer of admission on the terms and conditions containing

therein. However, the respondent failed to complete her diploma course

within the stipulated time i.e. in normal course a candidate is required to

complete by October, 2015. In order to clear backlog papers, the candidates

should have cleared all the papers latest by January, 2016. The respondent

completed her course much beyond the permissible three months time that

too after several attempts in September, 2016. Since the respondent could

not complete her course, therefore, she was not eligible to be appointed as

Probationary Officer with the petitioner. The respondent made

representation to the Board of Directors and the same was rejected. At last

the respondent filed a complaint under Section 75(1) of the Right of Persons

with Disabilities Act, 2016 before the Chief Commissioner for Persons with

Disabilities. The petitioner bank vide its reply dated 10/13.07.2017 stated

that the respondent is not fulfilling the eligibility criteria for the appointment

as Probationary Officer under the prescribed rules and regulations. But she

was trying to gain sympathy by raising the same issue again and again by

making representations before the various authorities. However, vide order

dated 24.10.2017, the Chief Commissioner for Persons with Disabilities

despite possession of aforesaid facts allowed the complaint and directed the

petitioner bank to provide the employment to the respondent.

3. Learned counsel appearing on behalf of the petitioner submitted that

learned Chief Commissioner failed to appreciate that though the respondent

completed the diploma course, however, she could not complete the same

within stipulated time making herself ineligible for appointment. If the

norms prescribed are relaxed for accommodating the respondent in the

petitioner‟s bank, the same will not only deprive the other deserving

candidates in the handicapped category but will also open the door for all

those candidates who were disqualified in past due to non completion of the

diploma course within the stipulated time. The respondent who got the

admission to the 13th batch of said diploma course for the year 2014-15 was

required to complete the said tri-semester PGDBF within nine months with a

further grace period of maximum three months or one additional attempt

whichever is earlier to clear all the backlog to enable her to be eligible for

appointment.

4. Learned counsel further submitted that learned Chief Commissioner

failed to appreciate that mere admission to the diploma course in BMSB

does not give right to a candidate for selection/appointment as Probationary

Officer in the petitioner‟s bank. The same is subject to certain terms and

conditions. However, learned Chief Commissioner failed to appreciate that

the advertisement dated 12.07.2014 inviting applications for admission

clearly stipulates the following conditions:

"FINAL PLACEMENT IN BANK OF BARODA 2.7.1 After successful completion of their course and fulfilling other terms and conditions, as may be specified in the offer letter, all the students will be awarded the POST GRADUATE DIPLOMA IN BANKING AND FINANCE, from Manipal University as a convocation ceremony where they shall also be handed over the final appointment letters from the Bank"

5. Learned counsel further submitted that the petitioner was never given

offer of appointment in terms of aforesaid clause 2.7.1. The respondent was

only offered admission for the diploma and her offer of appointment with

the petitioner‟s bank was subject to successful completion of said diploma,

which she admittedly failed to complete within the stipulated time frame. It

is further submitted that the respondent did not place the correct facts before

the learned Chief Commissioner that the diploma course in question was for

a period of one year and not for 24 months as alleged by her. Her offer letter

for admission to the course bearing no. BCC/HRM/106/B-45/9073-362

dated 16.10.2014 specifically mentioned the duration of the diploma course

as one year i.e. tri-semester of three months each and three months of

internship. Therefore, the allegation of the respondent that the said course

was of 24 months and unilaterally with vested interest reduced the same to

one year is completely incorrect. The relevant clause 19 of the said offer

letter for admission reads as under:

"19. Successful completion of the course- Successful completion of the course will have to be in terms of fulfilling all the academic requirements, passing of papers and attainment of credits, etc. as stipulated by the Manipal University and no exemptions, whatsoever, will be permissible in any case. Kindly note that all papers of all the 3 trimesters need to be necessarily passed within the duration of 1 year only. If you are unable to pass all the subjects/credits as stipulated above i.e. within the course duration of 1 year, all the back papers will have to be cleared within a maximum of further 3 months or 1 additional attempt whichever is earlier to be eligible for appointment in Bank's service. In all other cases, the offer of appointment in Bank of Baroda shall stand

withdrawn automatically. Any additional expenses required to be incurred in appearing for repeat attempts will have to be borne by you only."

6. It is further submitted that the petitioner‟s bank being a public sector

is bound by certain set of rules and regulations in collaboration with the

Manipal University Learning Pvt. Ltd., and duly governed by the policies of

the government. However, by implementing the recommendation passed by

learned Chief Commissioner would result in not only the violation of rules

and regulations depriving other eligible candidates. Moreover, learned Chief

Commissioner has no power to direct the petitioner to give employment to

the respondent. It is further submitted that once a candidate appear in the

process and could not get success, the said candidate cannot challenge the

selection process thereafter.

7. To strengthen aforesaid arguments, learned counsel for the petitioner

has relied upon the case of Bharat Sanchar Nigam Limited and another vs.

G. Sarvothaman: (2013) 10 SCC 489 whereby the Hon‟ble Supreme Court

has held that the Chief Commissioner has no power under Section 59 of the

1995 Act to direct any authority to include the person with disability in the

list of identified posts and then to order preparation of reservation register

for physically handicapped persons and to consider the claim of the

complainant for promotion under the reserved vacancies for the various

grades. The Chief Commissioner can only examine whether the persons

with disabilities have been deprived of any "rights" for which the

Commissioner has to first examine whether the complainant has any

"rights" under the laws. The commissioner cannot confer or create any right

for the same.

8. He has further relied upon the case of Bedanga Talukdar vs

Saifudaullah Khan and others: (2011) 12 SCC 85 whereby the Hon‟ble

Supreme Court has held that the selection process has to be conducted

strictly in accordance with the stipulated selection procedure. Any violation

thereto would violate the mandate of Articles 14 and 16 of the Constitution

of India.

9. He has also relied upon case of Union of India & Ors. vs. S. Vinodh

Kumar & Ors.: (2007) 8 SCC 100 whereby the Hon‟ble Supreme Court has

held that the candidates who take part in the selection process fully knowing

the procedure laid down therein are not entitled to question the same.

10. Learned counsel also relied upon the case of Md. Shah Afzal and

Ors. vs. Medical Council of India and Ors, decided by of this court on

06.07.2010 in W.P.(C) 1352/2008 and 6759/2008 & 8750/2009 wherein

held that once the Chief Commissioner takes a view on a particular

complaint and then takes up the matter with an appropriate authority, if such

view is permissible in law, then the appropriate authority would be obliged

to redress and remove the grievance of the complainant. In case the

concerned authority does not take any action whatsoever, it would then be

open to the aggrieved person to approach the High Court under Article 26

for an appropriate writ, direction or order, if he makes out a case of

deprivation of a right or non-implementation of laws, rules etc.

11. Learned counsel for the petitioner further submitted that in the facts

and circumstances of the case and legal proposition, the impugned order

dated 24.10.2017 deserves to be set aside by allowing the present petition.

12. On the other hand, learned counsel for the respondent submits that the

petitioner has deliberately not filed email dated 09.08.2016 from Baroda

Manipal School of Banking to the respondent wherein the 15 months

requirement was waived by stating as under:

"Please note that this will be the final chance for you to clear the subject and the course, as per university rules."

13. Thus, the petitioner has intentionally and deliberately not filed this

email and has obtained interim relief from this court. The Rights of Persons

with Disabilities Act, 2016 (hereinafter referred to as „the Act") replaced the

earlier Act of 1995 to give effect to the United Nations Convention on the

Rights of Persons with Disabilities and for matters connected therewith or

incidental thereto. The said convention lays down the following principles

for empowerment of persons with disabilities:-

"(a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities;"

14. It is further submitted that India is a signatory to the said Convention

and on 01.10.2007, the Convention was ratified by it. From the above, it is

apparent that the same were enacted to bring an end to discrimination

against physically disabled persons. Positive measures have been indicated

in the said enactment so as to provide education to physically disabled

children/persons not only in normal schools but also in specialized

institutions. There is also a requirement that physically disabled persons

should be given special consideration in the matter of employment so that

they are not left out of the social mainstream and are also made to contribute

to the social and economic development of the nation. In terms of the said

Act, it is the responsibility of the State towards the prevention of disabilities,

protection of rights, provision of medical care, education, training,

employment and rehabilitation of persons with disabilities as also to create a

barrier free environment for such persons. The special provisions should be

made for the integration of persons with disability into the social

mainstream. It is pertinent to refer Section 3 of the Act provides as under:

"3. Equality and Non-Discrimination (1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.

(2) The appropriate government shall take steps to utilize the capacity of persons with disabilities by providing appropriate environment.

(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.

(4) No person shall be deprived of his or her personal liberty only on the ground of disability.

(5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities."

15. Further, for the effective implementation of the Act and in order to

safeguard the rights of the Persons with Disabilities, Section 75 of the Act

provides for the functions of the Chief Commissioner and the same are as

under:

"75 (1) The Chief Commissioner shall -

(a) Identify, suo motu or otherwise, the provisions of any law or policy, programme and procedures, which are inconsistent with this Act and recommend necessary corrective steps;

(b) Inquire, suo motu or otherwise, deprivation of rights of persons with disabilities and safeguards available to them in respect of matters for which the Central Government is the appropriate Government and take up the matter with appropriate authorities for corrective action;

(c) Review the safeguards provided by or under this Act or any other law for the time being in force for the protection of rights of persons with disabilities and recommend measures for their effective implementation;

(d) Review the factors that inhibit the enjoyment of rights of persons with disabilities and recommend appropriate remedial measures;

(e) Study treaties and other international instruments on the rights of persons with disabilities and make recommendations for their effective implementation;

(f) Undertake and promote research in the field of the rights of persons with disabilities;

(g) Promote awareness of the rights of persons with disabilities and the safeguards available for their protection;

(h) Monitor implementation of the provisions of this Act and schemes, programmes meant for persons with disabilities;

(i) Monitor utilization of funds disbursed by the Central Government for the benefit of persons with disabilities; and

(j) Perform such other functions as the Central government may assign. (2) The chief Commissioner shall consult the Commissioners on any matter while discharging its functions under this Act."

16. In addition to above, Section 76 of the Act provides that whenever,

the Chief Commissioner makes a recommendation to an authority in

pursuance of clause (b) of Section 75, that authority shall take necessary

action on it, and inform the Chief Commissioner of the action taken within

three months from the date of receipt of the recommendation. However,

where an authority does not accept a recommendation, it shall convey

reasons for non-acceptance to the Chief Commissioner within a period of

three months, and shall also inform the aggrieved person.

17. Learned counsel for the respondent further submitted that the

respondent is a female handicapped with 50% locomotor disability. The

respondent had cleared the online examination for the Post Graduate

Diploma Course in Banking and Finance conducted by the petitioner‟s bank

in collaboration with Baroda Manipal School of Banking. The respondent

was selected as a Probationary Officer JMGS-1 scale after having cleared

the online test on 14.08.2014 as well as Group Discussion and Interview

held on 09.09.2014 from among 6 lakh candidates. The respondent was

selected under the 50% Physically Handicapped quota. It is further

submitted that on the instance of the petitioner, the respondent was forced to

take an Education Loan of ₹4,33,642/- from the petitioner bank and the

petitioner assured the respondent that once she signs the documents, she will

get the job after the training course in BMSB. Accordingly, the loan which

was advanced to the respondent was to be paid to the above school. Out of

twenty subjects, the respondent had cleared all the exams/papers within 12

months/15 months except few papers. The petitioner bank and aforesaid

school permitted the respondent to appear in the examination and complete

the same even beyond the aforesaid period vide email dated 09.08.2016

thereby waiving the condition of 12 months/15 months wherein it was stated

as follows:

"The test in Term II subject where you have a backlog, will be held on Friday, September 9, 2016 at 10.00 a.m. The notification issued by the University in this regard is attached.

Please note that this will be the final chance for you to clear the subject and Course, as per University

Rules...."

(emphasis added)

18. Learned counsel further submitted that the petitioner has most

importantly failed to file the email dated 09.08.2016 from the Baroda

Manipal School of Banking to the respondent wherein the 15 months

requirement was waived by the petitioner. The petitioner has further failed

to file mark-sheet, merit list as well as CGPA list of September, 2016. It is

further submitted that the respondent was seriously ill from 15.12.2015 to

25.12.2015 as she was suffering from acute lower respiratory tract infection

with respiratory distress since 15.12.2015 and had informed the authorities

about her illness and had requested them to change the date of examination

from 2015 to January, 2016 but the said request was declined.

19. I have heard learned counsel for the parties and perused the material

on record.

20. The Act was enacted to prevent any discrimination against the

physically disabled persons as well as to ensure that special considerations

are given to physically disabled persons in the matter of employment so that

they are not left out of the social mainstream and are also made to contribute

to the social and economic development of the nation. However, in the

present case, the petitioner failed to offer any facility to the physically

handicapped persons in respect of the time line for completion of the course.

However, right after admission, the petitioner had expectation that a person

with disability to compete with general category candidates, however, the

same is contrary to the intent and purpose of the Act. Because of the actions

of the Petitioner, the respondent has been left as unemployed and the Bank

is demanding the loan amount to be returned with an extra amount of

₹1,52,500/- as interest.

21. The time period of 15 months was never informed to the respondent at

the time of applying the same. No warning or intimation was provided

regarding Clause-19. (15 months requirement). Even the advertisement and

the notification issued by the Bank of Baroda did not mention about the 15

months period. Rather, BMSB itself waived the condition vide its email

dated 09.08.2016 referred above. If the respondent was intimated at that

point of time, she would have the option to leave the course instead of

paying additional tuition fee every semester. As per the said email, the

respondent was given a final opportunity to complete the course. Therefore,

the respondent had a legitimate expectation that in case she cleared the

exams, she would be given the job. Accordingly, respondent cleared the

exams and completed the course.

22. In case of Central Inland Water Transport Corporation Limited and

Another vs. Brojo Nath Ganguly & Anothers: (1986) 3 SCC 156 whereby

the Hon‟ble Supreme Court observed as under:

"Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that

contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction."

23. In case of Kunal Singh vs. Union of India and Another: (2003) 4

SCC 524, the Hon‟ble Supreme Court has observed as under:

"In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service."

24. In case of National Federation of the Blind Vs Union of India &

Ors: 156 DLT 446 (DB) passed by this court, has held that:

"The Disabilities Act was enacted for protection of the rights of the disabled in various spheres like education, training, employment and to remove any discrimination against them in the sharing of development benefits vis-a- vis non-disabled persons. In the light of the legislative aim it is necessary to give purposive interpretation of Section 33 with a view to achieve the legislative intendment of attaining equalization of opportunities for persons with disabilities."

25. In the case of Punjab Communications Ltd. vs. Union of India and

Ors: (1999) 4 SCC 727, the Hon‟ble Supreme Court has observed as under :

"27. The basic principles in this branch relating to "legitimate expectation" were enunciated by Lord Diplock in Council of Civil Service Unions vs. Minister of the Civil Service at pp. 408-409). It was observed in that case that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either

(i) he had in the past been permitted by the decision- maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment;

or

(ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."

26. At the time of giving admission letter, the students, who have no

bargaining power, are made to sign documents/admission forms which are

nothing but standard form of contracts containing unreasonable and unfair

terms and conditions adverse to the interest of the students. The freedom of

contract must be founded on equality of bargaining power between

contracting parties. The respondent had no choice or rather meaningful

choice but to give her consent and sign on the dotted line in the prescribed

form or standard form and to accept the rules, howsoever, unfair,

unreasonable and unconscionable the terms and conditions may be.

27. The respondent is academically meritorious. She has passed all exams

despite her disability. She also passed Group Discussion and Interview

securing 83 marks which is nearer to General Candidates‟ cut off marks of

89, Schedule Castes cut off was 72 and Physically Handicapped candidate‟s

cut off was 69. Thus, it shows that not only did the respondent secure

minimum level of academic qualification but also has adequate merit.

28. It is pertinent to mention here that even though the petitioner and the

banking school had already decided that the respondent was not to be given

employment, but they still allowed her to continue and continued to take

money for the 2nd and 3rd semester. The respondent had paid a fee of

₹4,22,614/- to the school after taking a loan from the petitioner and now she

has to repay the loan but she has no other means of source of income.

Moreover, the petitioner had forcibly and intentionally kept all her

certificates in their custody due to which respondent could not apply

anywhere for the last three years and her age has crossed over 33 years.

29. It is also pertinent to mention here that in advertisement in the

newspapers it was not mentioned in how many months to complete the

course. Moreover, the respondent has specifically completed the course,

irrespective of completing in marginal longer time. No extra time was given

in the exam which is clear violation of rules and statutory rights of persons

with disabilities Act, 2016.

30. A Chief Commissioner under the Act functions as a quasi-judicial

authority and has ample powers to decide the issues entrusted to it. The

orders passed by the Chief Commissioner are not to be ignored and must be

given serious and due consideration and weightage. It has to be kept in mind

that the Act is a beneficial legislation and, therefore, the provisions should

be interpreted and construed in a manner which advances the benefits given

under the said legislation. Consequently, the powers and functions of the

Commissioner would have to be given the widest amplitude possible within

the four corners of the provisions of the said Act itself. The Chief

Commissioner is certainly required to and is empowered to look into any

transgression of the rights of persons with disabilities as also to examine the

issue of non-implementation of laws etc., which are for the welfare and

protection of rights of persons with disabilities.

31. The respondent is a female handicapped with 50% locomotor

disability. She had cleared the online examination for the Post Graduate

Diploma Course in Banking and Finance conducted by the petitioner‟s bank

in collaboration with Baroda Manipal School of Banking. She was selected

as a Probationary Officer JMGS-1 scale after having cleared the online test

on 14.08.2014 as well as Group Discussion and Interview held on

09.09.2014 from among 6 lakh candidates. She was selected under the 50%

Physically Handicapped quota. She is academically meritorious. She has

passed all exams despite her disability. She also passed Group Discussion

and Interview securing 83 marks which is nearer to General Candidates‟ cut

off marks of 89, Schedule Castes cut off was 72 and Physically Handicapped

candidate‟s cut off was 69, despite that she is not given appointment on the

flimsy ground.

32. In view of above discussion and the settled legal position of law, there

is no merit in the present petition.

33. The writ petition is, accordingly, dismissed with no order as to costs.

34. Consequently, the petitioner is directed to comply order dated

24.10.2017 passed by the learned Chief Commissioner for Persons with

Disabilities, Delhi within four weeks with all consequential benefits.

CM APPLN. 8876/2018 In view of the order passed in the present writ petition, the application has been rendered infructuous and is accordingly, disposed of.

(SURESH KUMAR KAIT) JUDGE MARCH 29, 2019 @mit/ab