Sri Aswini Kumar Sarangi vs National Bank For Agricultural ...
2021 Latest Caselaw 3 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY, 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         WRIT PETITION NO.8456 OF 2019 (S-PRO)

BETWEEN :

SRI ASWINI KUMAR SARANGI
S/O. LATE BHASKAR SARANGI,
AGED ABOUT 57 YEARS
DEPUTY GENERAL MANAGER,
NATIONAL BANK OF AGRICULTURAL AND RURAL
DEVELOPMENT, BENGALURU
RESIDING AT FLAT NO.MF 28/9,
NABARD OFFICERS QUARTERS,
NANDINI LAYOUT,
NEAR NANDINI LAYOUT POLICE STATION,
BANGALORE-78.                       ...PETITIONER


(BY SRI P. P. HEGDE, ADVOCATE -VIDEO CONFERENCING)

AND :

1.      NATIONAL BANK FOR AGRICULTURAL
        AND RURAL DEVELOPMENT,
        REPRESENTED BY ITS CHAIRMAN,
        HEAD OFFICE, BANDRA-KURLA COMPLEX,
        MUMBAI-400051

2.      CHIEF GENERAL MANAGER
        HUMAN RESOURCES MANAGEMENT DEPARTMENT,
        NATIONAL BANK FOR AGRICULTURAL AND
        RURAL DEVELOPMENT,
        HEAD OFFICE,
        BANDRA-KURLA COMPLEX,
        MUMBAI-400051.
                             2




3.   UNION OF INDIA
     DEPARTMENT OF FINANCIAL SERVICES,
     MINISTRY OF FINANCE,
     REPRESENTED BY ITS CHIEF SECRETARY,
     3RD FLOOR, JEEVAN DEEP BUILDING,
     SANSAD MARG,
     NEW DELHI-110 001.               ...RESPONDENTS

(BY SRI   JITENDRA C.P. FOR SRI T. SURYANARAYANA,
ADVOCATE FOR R1 & R2 - PHYSICAL HEARING;
SRI RAJASHEKARAIAH, CENTRAL GOVERNMENT STANDING
COUNSEL FOR R3 - PHYSICAL HEARING)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
CLAUSE NO.2(E) OF 'POLICY OF RECRUITMENT, SUCCESSION
PLANNING AND CAREER PROGRESSION FOR OFFICERS' OF THE
CIRCULAR DATED 13.11.2014 ISSUED BY RESPONDENT NO.2
PRODUCED AT ANNEXURE-A INSOFAR AS IT PERTAINS TO
INTRODUCTION    OF   PERSONAL   INTERVIEW   AND    THE
WEIGHTAGE GIVEN FOR THE MARKS IN THE INTERVIEW FOR
PROMOTION IS CONCERNED - AS ARBITRARY, INVALID AND
UNCONSTITUTIONAL,, VIOLATING ARTICLES 14 AND 21 OF THE
CONSTITUTION OF INDIA AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING :
                          ORDER

The petitioner in this writ petition has sought for

the following prayers :

"WHEREFORE, the petitioner most respectfully prays that this Hon'ble Court be pleased to :

(i) Issue a writ in the nature of certiorari or any other appropriate writs or directions/orders, quashing Clause No.2(e) of 'Policy for Recruitment, Succession Planning and Career Progression for Officers' of the Circular No.219/HRMD PA- 11/2014 dated 13.11.2014 issued by respondent No.2 produced at Annexure-A insofar as it pertains to introduction of personal interview and the weightage given for the marks in the interview for promotion is concerned as arbitrary, invalid and unconstitutional, violating Articles 14 and 21 of the Constitution of India;

(ii) Issue a writ of mandamus, any other appropriate writ/directions/orders directing respondent No.1 to promote the petitioner to the post of General Manager (Grade 'E') with his original seniority with effect from 31.12.2014 with all consequential benefits thereof; "

In substance, the challenge of the petitioner is to

Policy for Promotion, Succession, Planning and Career

Progression as depicted in Circular dated 13.11.2014

- Annexure-A.

2. Heard Sri P.P. Hegde, learned counsel for

the petitioner; Sri Jitendra C.P. for Sri T.

Suryanarayana, learned counsel for respondents No.1

and 2 and Sri Rajashekaraiah, Central Government

Standing Counsel for respondent No.3; and perused

the material on record.

3. The brief facts leading to filing of writ

petition are the petitioner joined the services of

National Bank for Agricultural and Rural Development

(hereinafter referred to as 'NABARD' for short) in the

year 1985 and has been promoted to higher echelons

of office from time to time. NABARD by a Circular

No.219 dated 13.11.2014 notified a Policy for

Promotion, Succession Planning and Career

Progression (hereinafter referred to as 'Promotion

Policy' for short). The issue in the lis is with regard to

the selection from Grade 'D' to Grade 'E' i.e., Deputy

Manager to General Manager insofaras petitioner is

concerned.

4. Relevant clause in the policy is clause (e)

which reads as follows -

"(e) Selection from Grade 'D' to Grade 'E' (RDBS) Promotions from Grade 'D' to Grade 'E' shall be vacancy based and highly selective. The selection criteria will be stringent at this level. Selection will be made through assessment of performance appraisal reports and a personal interview. The zone of consideration shall comprise freshers to the extent of 1.75 times the number of vacancies in addition to repeaters. Officers in Grade 'D' with 3 years of 'qualifying service' as on 31

December of the year prior to the panel year shall be eligible for promotion to Grade 'E'. Officers in the zone of consideration having 'Above Standard' PAR marks as average of best 03 out of 05 available PARs immediately preceding the panel year will be eligible. Minimum qualifying marks for interview shall be 60%. The weightage of PAR marks and interview shall be in the proportion of 60:40. Selection shall be in descending order of merit.

The criteria at 2(e) above will also be applicable to promotions from Grade 'D' to Grade 'E', in other services, wherever Grade 'E' vacancies are available."

5. The afore-extracted Clause (e) clearly

indicated that minimum qualifying marks for

participation in the interview would be 60% making it

clear that remaining 40% would be assessed during

the interview. The policy for promotion as stated

herein above was on 13.11.2014. Promotion process

from Grade 'D' to Grade 'E' has taken place in terms

of this policy for the years 2015, 2016, 2017, 2018

and 2019. In all these years petitioner, in the teeth of

the afore-extracted clauses in the Circular participated

in the selection/promotion process for all the five

years. It is not a fact that the petitioner was taken by

surprise with regard to 40% marks assigned for

interview in the promotion policy. Petitioner knowing

this fact fully well participated in the promotion

process on five occasions and did not qualify to get

promotion to the post of General Manager, which is

Grade 'E'.

6. The participation of the petitioner in five

consecutive years of promotion process under the

Circular and not getting qualified even on one

occasion is not in dispute. Therefore, the petitioner

having participated in the promotion process/selection

process under the Circular cannot now turn around

and challenge 40% of marks earmarked for interview

as being arbitrary or otherwise, since the petitioner

has acquiesced himself by participating in the

promotion process under the impugned circular for

five terms.

7. It is also not in dispute that the petitioner for

the year 2019-20 again participated in the promotion

process under the same Circular and was promoted to

Grade 'E', since he was qualified for the first time to

be regularly promoted to Grade 'E' i.e., General

Manager and is functioning as General Manager on

such promotion with effect from 01.01.2020. On both

the counts the petitioner cannot raise a challenge to

the policy of promotion, first having participated in the

promotion process and now having been found eligible

and accepting promotion to the post of general

manager.

8. It is apposite to refer to the judgment of the

Apex Court on the issue of a candidate taking chance

of participation in a process of selection cannot turn

around and challenge the same, in the case of Madan

Lal v. State of J&K, (1995) 3 SCC 486, Contention

1 has held as follows:

6. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the

petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644 : AIR 1986 SC 1043] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he

found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the

candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.

Later, the Apex Court following the judgment in

the case of Madanlal suprain the case of Manish

Kumar Shahi v. State of Bihar, (2010) 12 SCC

576 has held as follows:

11. In State of U.P. v. Rafiquddin [1987 Supp SCC 401 : 1988 SCC (L&S) 183 : (1987) 5 ATC 257] the Court referring to the ratio of the judgment in Lila Dhar v. State of Rajasthan [(1981)

4 SCC 159 : 1981 SCC (L&S) 588] , refused to nullify the selection made for recruitment to the U.P. Civil Service (Judicial Branch) and observed:

(Rafiquddin case [1987 Supp SCC 401 : 1988 SCC (L&S) 183 : (1987) 5 ATC 257] , SCC pp. 417-18, para 11) "11. ... In Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417 : 1986 SCC (L&S) 88] a Constitution Bench of this Court approved the view expressed in Lila Dhar case [(1981) 4 SCC 159 : 1981 SCC (L&S) 588] . The Court observed there cannot be any hard- and-fast rule regarding the weight to be given as against the written examination. It must vary from service to service; according to the requirement of the service, the minimum qualification, prescribed age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other factors. It is a matter for

determination by experts. The court does not possess the necessary equipment and it would not be right for the court to pronounce upon it. In Lila Dhar case [(1981) 4 SCC 159 : 1981 SCC (L&S) 588] 25 per cent of marks fixed for viva voce test was upheld. In Ashok Kumar Yadav case [(1985) 4 SCC 417 : 1986 SCC (L&S) 88] selection made by the Haryana Public Service Commission for appointment to the post of Haryana Civil Service (Executive and other allied services) was under challenge. The Court held that allocation of 33.3 per cent for viva voce was high as it opened door for arbitrariness and in order to diminish it if not eliminate the same the percentage needs to be reduced. The Constitution Bench made observation that marks for viva voce test should not exceed 12.2 per cent. In spite of these observations the Constitution Bench did not interfere or strike down the selection instead it directed the Commission to give one more

opportunity to the aggrieved candidates to appear at the competitive examination. In the instant case there has been no allegation of mala fides or arbitrariness against the Commission which held the viva voce test."

12. In Mehmood Alam Tariq v. State of Rajasthan [(1988) 3 SCC 241 : 1988 SCC (L&S) 757 : (1988) 7 ATC 741] the Court distinguished the earlier judgments in Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S) 258] , Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417 : 1986 SCC (L&S) 88] , relied upon Lila Dhar v. State of Rajasthan [(1981) 4 SCC 159 : 1981 SCC (L&S) 588] and held that prescription of 33% marks for interview for recruitment to the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962, Rajasthan Administrative Service Rules,

1954, Rajasthan Police Service Rules, 1954, Rajasthan Forest Service Rules, 1962 and Rajasthan Forest Subordinate Service Rules, 1963 is not violative of Articles 14 and 16 of the Constitution.

13. Some of the observations made in that judgment are extracted below: (Mehmood Alam Tariq case [(1988) 3 SCC 241 : 1988 SCC (L&S) 757 : (1988) 7 ATC 741] , SCC pp. 251-52, para 20) "20. On a careful consideration of the matter, we are persuaded to the view that the prescription of minimum qualifying marks of 60 (33 per cent) out of the maximum marks of 180 set apart for the viva voce examination does not, by itself, incur any constitutional infirmity. The principles laid down in Ajay Hasia [(1981) 1 SCC 722 : 1981 SCC (L&S) 258] , Lila Dhar [(1981) 4 SCC 159 : 1981 SCC (L&S) 588] , Ashok Kumar Yadav [(1985) 4 SCC 417 : 1986 SCC (L&S) 88] , do not

militate against or render impermissible such a prescription. There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, expected to man increasingly responsible positions in the core services such as the Administrative Services and the Police Services should be men endowed with personality traits conducive to the levels of performance expected in such services. There are features that distinguish, for instance, Accounts Service from the Police Service--a distinction that draws upon and is accentuated by the personal qualities of the officer. Academic excellence is one thing. Ability to deal with the public with tact and imagination is another. Both are necessary for an officer. The dose that is demanded may vary according to the nature of the service. Administrative and Police Services constitute the cutting edge

of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation."

       14. The    same         view     has   been
reiterated    in Anzar    Ahmad v. State         of

Bihar [(1994) 1 SCC 150 : 1994 SCC (L&S) 278 : (1994) 26 ATC 504] , P. Mohanan Pillai v. State of Kerala [(2007) 9 SCC 497 : (2007) 2 SCC (L&S) 542] and K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] .

15. In view of the law laid down in the abovementioned judgments, it must be held that earmarking of 200 marks for viva voce test as against 850 marks for written examination does not violate the doctrine of equality embodied in Articles 14 and 16 of the Constitution.

16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K [(1995) 3 SCC 486 :

1995 SCC (L&S) 712 : (1995) 29 ATC 603] , MarripatiNagaraja v. Govt. of A.P. [(2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68] , Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005] , Amlan Jyoti Borooah v. State of Assam [(2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] .

(emphasis applied)

The afore extracted judgment is an answer to both

the contentions of the petitioner with regard to

assigning of 40% of the marks for interview being on

the higher side and the act of the petitioner

participating in the promotion process and turning

around and challenging the very same promotion

process under which he participated. Both the grounds

have been turned down by the Apex Court. The said

enunciation of law by the Apex Court covers the case

at hand on all fours.

9. The learned counsel for the petitioner refers

to a judgment of learned Division Bench of this Court

in the case of STATE OF KARNATAKA, REP., BY

CHIEF SECRETARY & OTHERS VS. SRI B.

MAHADEVAIAH & ANOTHER, reported in ILR 2014

KAR 1189, the judgment of the learned Division Bench

is distinguishable on the facts of the case at hand

without much ado as the facts before the learned

division bench was that the respondents therein had

appeared and passed the required test or examination

for the post of FOREST WATCHERS and even then had

been denied promotion, it is in that light the learned

Division Bench held that once having been qualified

participation in the selection process will not take

away the right of the petitioners therein to challenge

the selection process.

10. In the case at hand, the petitioners failed to

qualify for promotion in the promotion process for five

consecutive years and on the sixth occasion he has

been found fit and is promoted. Therefore, the law laid

down by the learned Division Bench is inapplicable to

the facts of the case at hand.

11. The petitioner contends that there can be no

estoppel against a fundamental right, and his non-

promotion has violated his fundamental right. The

submission is unacceptable as it is settled principle of

law that promotion is not a fundamental right but

consideration for promotion is. The petitioner was

considered for promotion for five consecutive years

i.e. 2015-2019 and for the sixth time for 2019-2020

he was found to be eligible. Therefore, fundamental

right of the petitioner for consideration of promotion

has been adequately complied by the respondent. It

does not lie with the petitioner to contend that his

fundamental rights are infringed by not granting

promotion.

For the aforesaid reasons, the writ petition lacks

merit and is dismissed.

Sd/-

JUDGE

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