Dismissed

P.Rathnakar v. Institute of Banking Personnel Selection (Ibps)

Kerala HC6 Jun 2022WP(C)/4974/2021

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition by a law graduate with disability challenging the omission of a reserved vacancy in his provisional appointment list. The court held the petition lacked territorial jurisdiction and that indicative vacancies do not create legal rights. The petition is dismissed.

What did the court decide?

The writ petition was dismissed as not maintainable for want of territorial jurisdiction and due to the petitioner having no legitimate expectation regarding the vacant post.

P.Rathnakar Vs Institute of Banking Personnel… — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 6^TH DAY OF JUNE 2022 / 16TH JYAISHTA, 1944

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WP(C) NO. 4974 OF 2021

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PETITIONER/S:

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P.RATHNAKAR AGED 29 YEARS S/O. P.S.V.PRAKASH, PERMANENT ADDRESS-6153/3/1,SF-1,SAIKRISHNA RESIDENCY-1, BMPS ROAD, PRASADANPADU, VIJAYAWADA-521108, NOW RESIDING AT DOOR NO.455/141, THOUDAYIL HOUSE, THOUNDAYIL ROAD, PANAMPILLY NAGAR, KOCHI BY ADVS. S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA

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RESPONDENT/S:

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1 INSTITUTE OF BANKING PERSONNEL SELECTION (IBPS) REPRESENTED BY ITS CHAIRMAN, 90 FEET, D.P.ROAD, NEAR THAKUR POLYTECHNIC, OFF WESTERN EXPRESS HIGHWAY, P.B.NO.8587,KANDIVALI (E) MUMBAI-400 101

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2 BANK OF BARODA, REPRESENTED BY ITS CHAIRMAN,BARODA BHAVAN, 7TH FLOOR, RC DUTT ROAD, VADODARA, GUJARAT-390007

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3 BARODA U.P. GRAMIN BANK, REPRESENTED BY ITS CHAIRMAN, (HEAD OFFICE), BUDDH VIHAR COMMERCIAL SCHEME, NEW SHIVPURI COLONY, TARAMANDAL, GORAKHPUR-273 016

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4 UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI-110 011

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5 NATIONAL BANK FOR AGRICULTURE AND RURAL DEVELOPMENT (NABARD) REPRESENTED BY ITS CHIEF GENERAL MANAGER, 6TH FLOOR, 'A' WING C-24, 'G' BLOCK BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400 051, MAHARASHTRA

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6 RESERVE BANK OF INDIA (RBI), REPRESENTED BY ITS REGIONAL DIRECTOR, POST BAG NO.901, MAIN BUILDING, SHAHID BHAGAT SINGH

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W.P.(C) No.4974 of 2021

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MARG, MUMBAI-400 001 (*R5 AND R6 DELETED FROM PARTY ARRAY AS PER ORDER DATED 12/01/202 IN I.A 1/2022 OF WP(C)4974/2021) BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR R.REMA SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN MANU S., ASG OF INDIA SHRI.K.R.RAJKUMAR, C.G.C.

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OTHER PRESENT:

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SC FOR R1 M.GOPIKRISHNAN NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.02.2022, THE COURT ON 06.06.2022 DELIVERED THE FOLLOWING:

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W.P.(C) No.4974 of 2021

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JUDGMENT

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Dated this the 06^th day of June, 2022

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The petitioner is a Law Graduate with 50% Orthopedic disability. In response to Ext.P2 notification issued by the first respondent, the petitioner had applied for the post of Officer Scale-II (Law). Thereafter, he appeared for the Single Online Examination and interview and was qualified for being considered for appointment. The grievance of the petitioner is that, though in Ext.P2 notification one vacancy for Officer Gr.II (Law) was reserved in the third respondent Baroda UP Gramin Bank for the Orthopedically challenged, that vacancy is not shown in Ext.P8 notice for provisional allotment of Officers (Scale II and III). According to the petitioner, having notified the vacancy for the Orthopedically challenged and the petitioner having qualified, the respondents committed gross illegality by not including that vacancy in

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W.P.(C) No.4974 of 2021

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Ext.P8. The non-inclusion of the vacancy,

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militates against the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

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Adv.S.Sanal Kumar, learned Counsel for the petitioner, argued elaborately on the illegality in withdrawing a post identified, reserved and notified for the Orthopedically challenged. In support of his contentions, learned Counsel relied on the decisions in Union

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of India and another v. National Federation of the Blind and others [(2013) 10 SCC 772] and Rajeev Kumar and others v. Union of India and others [(2016) 13 SCC 153] .

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Learned Counsel for the first

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respondent challenged the maintainability of the writ petition contending that the first respondent is a public trust, registered under the Bombay Public Trust Act, 1950 and a Society

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registered under the Societies Registration Act,

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It is submitted that the first respondent

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is not a statutory, but an autonomous body, which provides services to participating banks and other organisations in conducting the

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test/selection process of personnel to fill the actual reported vacancies. The Apex Court in

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Rajbir Surajbhan Singh v. Institute of Banking

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Personnel Selection [(2019) 14 SCC 189] has clearly laid down that writ petition under Articles 32 or 226 of the Constitution of India

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are not maintainable against the first respondent. The above decision has been followed by the High Court of Kerala in writ petition Nos.18508 of 2019 and 10936 of 2020. Moreover, in Ext.P2 notification, it has been specifically

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stated that any dispute arising out of the advertisement, including the recruitment process, shall be subject to the sole jurisdiction of the

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courts situated at Mumbai. According to the

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learned Counsel, the writ petition is liable to be dismissed on merits also. This is for the

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reason that, from a reading of Ext.P2 advertisement itself, it is clear that the vacancies mentioned therein are indicative and anticipated, as communicated by the participating Regional Rural Banks (RRBs), while provisional allotments are done based on actual reported vacancies reported by the participating banks. Attention is hence drawn to the following statement in Ext.P2 notification;

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“Indicative post-wise and category-wise vacancies of each of the Regional Rural Banks are given vide Annexure-I. Recruitment in RRBs is a dynamic process which depends upon restriction imposed, business volume, business growth, health of the organisations, branch expansion, internal and external factors, structural changes etc. Vacancies mentioned here are indicative and anticipated as communicated by the RRBs. However, Provisional allotment will be made based on the actual vacancies reported by the RRBs.”

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It is contended that, having read the notification, the petitioner cannot feign

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ignorance of the fact that the vacancies mentioned in Ext.P2 were only indicative and not actual. Although the third respondent had reported one vacancy provisionally, no actual vacancy was in the post of Officer Scale-II (Law) was reported. As such, there was no question of provisionally allotting the petitioner to that post. However, the petitioner was considered for the reserve list, subject to further vacancies being provided by the participating RRBs during the validity period of the list. As the third respondent or other participating banks did not report any vacancy during the validity period of the reserve list, the petitioner could not be provisionally allotted from the reserve list also. After completing the allotment process on 31.12.2021, the first respondent had issued

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Annexure R1(a) notification on 01.01.2022, making provisional allotment of Officers (Scale II & III) including the post of Officer Scale-II

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W.P.(C) No.4974 of 2021

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(Law). Ext.R1(b) is pressed into service to contend that the claim of candidates included in the reserve list was dismissed by the Supreme Court finding them to be having no right to claim allotment/appointment.

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Adv.R.Rema, learned Counsel appearing

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for respondents 2 and 3, supported the contentions urged on behalf of the first respondent and further submitted that the third respondent Bank had opted out of the Common Recruitment Process, in view of the Bank's poor financial condition/steady decline in

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profitability and slippage into ‘RRB in focus’ category. Being so, the question of diluting the benefit of reservation available to the petitioner under Orthopaedically challenged category does not arise, as the third respondent Bank had not recruited any candidate to the exclusion of candidates with benchmark disability. Learned Counsel contended that the

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W.P.(C) No.4974 of 2021

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petitioner did not have the requisite experience of two years as an Advocate or having worked as Law Officer of financial institution for a period of not less than two years’. Admittedly, the petitioner has no experience as law officer of any institution and even as per the data available from the petitioner’s application, his legal practice in the High Court of Andhra Pradesh was only for 1 year 8 months and 17 days (08.09.2016 to 24.05.2018). Thereafter, the

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petitioner has been working as Research Assistant in the High Court of Kerala, which period cannot be reckoned for calculating his total period of experience as Advocate.

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petitioner contended that even though the prayer in the writ petition, as originally filed, was for a direction to the first respondent to

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provisionally allot/appoint the petitioner as Law Officer Scale-II in the third respondent Bank,

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W.P.(C) No.4974 of 2021

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the prayer was subsequently amended and

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substituted as under;

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“i. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 3^rd respondent to provisionally allot appointment to the petitioner as Law Officer (Scale-II) in the 3^rd respondent bank as per Annexure 1 of Ext.P2 notification in the vacancy earmarked for orthopedically challenged.”

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Therefore, the contention that the writ petition is not maintainable since the first respondent is an autonomous body, is no longer available. Indisputably, the third respondent is Regional Rural Bank incorporated under the provisions of the Regional Rural Banks Act, 1976 and the second respondent sponsor Bank is a public sector Bank. As such, the writ petition is

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maintainable.

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In reply to the contention based on

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Ext.R1(d) order of the Honourable Supreme Court, it is pointed out that the petitioner along with

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others had filed W.P.(C) No.305 of 2021 before

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the Supreme Court and the writ petition was later withdrawn with liberty to adopt appropriate remedies under Article 226 of the Constitution. A copy of the order dated 12.03.2021 is made available for perusal. It is contended that the Apex Court having permitted the petitioners to avail their remedies under Article 226, the maintainability of the writ petition cannot be questioned.

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Answering the contention regarding eligibility of the petitioner, it is submitted that a Law Graduate becomes an Advocate entitled to practice, on his enrollment on the rolls of the Bar Council of India. The requirement in notification is that the candidate should have

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been an Advocate and not of having actually practised as an Advocate for two years. The petitioner is an Advocate from the date of his enrollment and his present appointment as

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Research Assistant is also connected with the

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W.P.(C) No.4974 of 2021

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legal profession. Finally, it is submitted that

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the respondents cannot bypass the mandate of the PWD Act by contending that the third respondent had withdrawn from the recruitment process in view of its financial condition.

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On a perusal of Ext.P3 application, it

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can be seen that the petitioner's permanent address and address for correspondence is in Andhra Pradesh. This writ petition is filed before the High Court of Kerala on the premise that the petitioner had appeared for the online examination at a Centre in Aluva and had attended the interview at the Regional Office of the Kerala Gramin Bank at Malappuram. It is pertinent to note that the third respondent Bank is a Regional Rural Bank having its area of operation confined to the 31 Districts in Uttar Pradesh. As such, this Court has no jurisdiction to consider the petitioner's grievance regarding non-reporting of the actual vacancy and

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consequential failure to effect

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allotment/appointment by the third respondent. The writ petition is hence found to be not maintainable for want of territorial jurisdiction under Article 226(2) of the Constitution.

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I also find merit in the contention that, an anticipated vacancy indicated in the notification cannot give rise to any legitimate expectation of appointment, in view of the specific statement in Ext.P2 that the vacancies mentioned are indicative and provisional allotment will be made based on the actual vacancies reported by the RRBs. The decision of the third respondent Bank to withdraw from the recruitment process for the reason of its financial condition cannot also be faulted, since such liberty of the participating banks is reserved under the notification itself. I also take note of the settled legal position that, mere inclusion of name in the rank list will not confer legal right to a candidate to

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demand appointment. The mandate of the PWD Act cannot be pressed into service to demand appointment to a non-existent vacancy. In view of the above findings, question whether the petitioner had the requisite experience as Advocate is irrelevant.

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For the aforementioned reasons, the writ petition is dismissed.

Sd/-

V.G.ARUN JUDGE

Scl/

W.P.(C) No.4974 of 2021

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APPENDIX OF WP(C) 4974/2021

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PETITION	ER EXH	IBITS
EXHIBIT	P1	A TRUE CERTIFI TO THE	COPY OF THE CATE DTD 13. PETITIONER	DISABILITY 6.2007 PERTAINING
EXHIBIT	P2	A TRUE 1.7.202	COPY OF THE 0 ISSUED BY	NOTIFICATION DTD THE 1ST RESPONDENT
EXHIBIT	P3	A TRUE DTD 21. PETITIO OF LAW	COPY OF THE 7.2020 SUBMI NER FOR APPE OFFICER SCAL	APPLICATION FORM TTED BY THE ARANCE FOR THE POST E II
EXHIBIT	P4	A TRUE LETTER 1ST RES	COPY OF THE DTD 17.10.20 PONDENT	EXAMINATION CALL 20 ISSUED BY THE
EXHIBIT	P5	A TRUE ONLINE THE 1ST	COPY OF THE EXAMINATION RESPONDENT	RESULT OF SINGE DTD NIL ISSUED BY
EXHIBIT	P6	A TRUE LETTER RESPOND	COPY OF THE DTD NIL ISSU ENT	INTERVIEW CALL ED BY THE 1ST
EXHIBIT	P7	A TRUE DTD NIL	COPY OF THE ISSUED BY T	FINAL SCORE CARD HE 1ST RESPONDENT
EXHIBIT	P8	A TRUE ALLOTME III) DT RESPOND	COPY OF THE NT OF OFFICE D 3.2.2021 I ENT	PROVISIONAL RS (SCALE II AND SSUED BY THE 1ST
EXHIBIT	P9	A TRUE (REPLY) RESPOND	COPY OF THE DTD 15.2.20 ENT	EMAIL COMMUNICATION 21 FROM THE 1ST

P.Rathnakar v. Institute of Banking Personnel Selection (Ibps)

Case brief

What is this about?

What did the court decide?

P.Rathnakar v. Institute of Banking Personnel Selection (Ibps)

Case brief

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