Laxmidhar Nayak vs Union Bank Of India

S. N. Prasad, J.

1.This writ petition under Article 226 and 227 of the Constitution of India for quashing the selection process initiated pursuant to Annexure-2 with a

further direction upon the opposite parties to consider the case of the petitioner.

The brief facts of the case of the petitioner is that he was allowed to work as Housekeeper-cum-Peon in sub-staff cadre on temporary basis in

Nayagrah Branch of Union Bank of India w.e.f. 28.3.2009. He being a Scheduled Caste candidate, has discharged his duty efficiently in different

Branches of the Bank. The Bank has entered into an agreement with the Association known as All India Union Bank Employees’ Association on

25.11.2013 as per which the cutoff date for recruitment to fill up 1165 vacancies all over India of Housekeeper-cum-Peon wherein the Odisha

sanction vacancy strength is 16, as such it was agreed by both the parties that the said temporary basis workmen or casual workmen belonging to

reserved categories who have worked for the last five years for a total period of at least 360 days including 30 days during the last one year, i.e.

01.12.2012 to 30.11.2013 in the Bank may apply.

Accordingly an advertisement was issued for filing the application for the post of Housekeeper-cum-Peon to fill up total vacancies of 16. In the said

notification, out of 16 vacancies SC, ST, OBC and UR category has been allocated with 1, 3, 2 and 10 seats respectively. The petitioner has submitted

an application along with others but he has not been selected. The petitioner has filed this writ petition against his non-selection on the ground that he

having more experience of work in temporary capacity, has wrongly not been selected. He has also taken a ground in his date chart that the

reservation policy has not been followed since out of 16 vacancies only one vacancy has been earmarked for the SC category which is contrary to the

reservation policy of the Bank.

The opposite party - Bank has appeared and filed counter affidavit inter alia stating therein that the Bank has come out with the notification to fill up

16 vacancies in terms of the memorandum of settlement dtd.25.11.2013 entered in between the association of the employees of the Bank and the

Bank under the provision of Sec.18(3) of the Industrial Dispute (Central) Rules 1947 wherein both the parties have agreed to provide an opportunity to

appear in the recruitment process to the casual / temporary workmen which is to be made strictly on the basis of merit and the petitioner was allowed

to participate in the selection process but has not found to be more meritorious in comparison to that of other candidates under the SC category hence

not selected. Learned counsel for the Bank submits that the contention of the petitioner that he having more length of service in the capacity of

temporary housekeeping employee, ought to have been engaged, but the said contention is not to be accepted and to strengthen his argument he has

relied upon condition no.5 of the memorandum of settlement dtd.25.11.2013 wherein it has been provided that preference will be given to the

candidates having experience of working as casual / temporary Housekeeper/Sweeper/Peon and relating to their length of service but the condition no

5 cannot be read in isolation with the other conditions rather the length of experience would only be considered while giving preference if more than

one candidate have got same marks as would be evident from condition no.19 which speaks that in cases where more than one candidates secured

equal marks, tie will be resolved by applying the following methods one after another, i.e. (i) candidates with higher experience; (ii) date of birth, i.e.

the candidates older in age gets preference; and (iii) candidate with higher educational qualification.

He submits that the conditions of the memorandum of settlement dtd.25.11.2013 are to be read harmoniously and not in isolation. He refuted the

argument of learned counsel for the petitioner regarding reservation policy earmarking one vacancy for Scheduled Caste candidate and submitted that

this is not a fit argument to be accepted by this court for the reason that there is no pleading to that effect in the writ petition and merely on the basis

of the synopsis-cum-date chart that cannot be said to be proper pleading that too when the opposite party - Bank has filed detail counter affidavit

stating the reason for non-selection of the petitioner.

He submits that the petitioner has got right to be considered in view of the memorandum of settlement dtd.25.11.2013 and accordingly he has been

considered and in course of comparative assessment of merit, one candidate who happens to be under the Scheduled Caste category having got more

marks in comparison to the petitioner, has been selected while another candidate belonging to Scheduled Caste category since got more marks in

comparison to that of unreserved categories hence selected under the unreserved quota, accordingly the petitioner, on assessment of his performance

has not found to be more meritorious in comparison to that of the other candidates belonging to Scheduled Caste category, hence not selected.

He further submits that so far as the contention of the petitioner that reservation policy has not been followed, the petitioner, after knowing the fact

very well, as has been reflected in the advertisement earmarking one vacancy for the Scheduled Caste category, has not questioned the same rather

he has participated in the selection process accepting the conditions as has been reflected in the advertisement and when he has not been selected, he

now is challenging the condition of the advertisement which he cannot be allowed to do so especially for the reason that the same has also not been

pleaded in the writ petition and in absence of any pleading the petitioner cannot get any advantage on this ground also.

This court having heard learned counsels for the parties and on appreciation of their rival submission, has come across the fact and the fact which is

not in dispute in this case is that the petitioner was working as Housekeeper-cum-Peon in different Branches of the Union Bank of India in the State

of Orissa. The Bank has entered into an agreement with the Association of its workmen on 25.11.2013 under the provision of Sec.18(3) of the

Industrial Dispute (Central) Rules, 1947 wherein the terms of the settlement has been made and the terms which are necessary for consideration in

the instant case is term Nos.4, 5, 7, 15 and 19 which are being reflected herein below:-

 “4. It is agreed that this relaxation as agreed to by both parties is to give an opportunity to appear in this recruitment process to the casual /

temporary workmen, if any, as listed below, whose services have been utilized intermittently in the Bank, but the selection will be based on merits only.

(i) Workmen performing Housekeeping / sweeping of Bank’s premises or performing Sub-staff duties,

(ii) Workmen for maintenance of electric installations in the Bank.

(iii) Workmen for maintenance of telephone installations in the bank,

(iv) Workmen for Executive canteen and general canteen, wherever provided,

(v) Caretakers of bank’s guesthouses (at Mumbai, Delhi and other places),

(vi) Personal drivers engaged by the Bank’s Executives.

It is agreed that as the vacancies of Housekeeper-cum-Peon to be filled-in in the Bank, preference will be given to candidates having experience of

working as casual / temporary Housekeeper / Sweeper / Peon and relating to their length of service.

It is agreed that except for the relaxation in age, educational qualification criteria for recruitment, the casual / temporary workmen will have to

satisfy all other stipulated criteria as fixed for other open category candidates.

It is agreed that the Recruitment Process will consist of a Personal Interview carrying a total of 20 marks. The minimum qualifying percentage of

marks for the candidates belonging to the Unreserved / General Categories will 40% and for candidates belonging to the Reserved (Scheduled Caste /

Scheduled Tribe / Other Backward Classes / Persons with disabilities / Ex-Servicemen) categories will be 35% in the interview. The interview panel

shall consist of three members, one of which shall be an officer in the rank of Scale-IV as Chairman of the Interview Panel and two other members

shall be officers of Scale-III/II. One of the Interview Panel members shall belong to Scheduled Caste / Scheduled Tribe / Other backward Classes

and a Women representative.

In cases where more than one candidate secure the equal aggregate marks, tie will be resolved by applying the following methods one after

another:-

i. Candidates with higher experience;

ii. Date of Birth, i.e. the candidate older in age gets preference; and

iii. Candidate with higher educational qualification.â€​

It is evident from term no.4 that relaxation is to be given to provide an opportunity to appear in the recruitment process to the casual / temporary

workmen but the selection is to be made strictly on merit. Term no.5 stipulates that as the vacancies of Housekeeper-cum-Peon to be filled-in in the

Bank, preference will be given to candidates having experience of working as casual / temporary Housekeeper / Sweeper / Peon and relating to their

length of service. Term no.15 relates to the process of recruitment consists of marks obtained in personal interview while term no.19 speaks regarding

the process to give preference in case of tie in marks.

It is evident from the memorandum of settlement that the selection is to be made strictly on the basis of marks. It is not in dispute that the settlement

arrived in between the parties under Section 18(3) of the Industrial Dispute (Central) Rules, 1947 is binding upon the parties and if there is any dispute,

the same is to be agitated before the concerned industrial tribunal. This court after accepting the settled legal position is of the view that the settlement

is binding upon the petitioner as well as the Bank, as such it is to be seen as to whether the recruitment has been done in accordance with the terms of

settlement or not.

It is evident from the counter affidavit that the petitioner has filed up his application form for consideration of his candidature and he has been allowed

to participate in the selection process, in course thereof he has been found to be less meritorious in comparison to that of a candidate namely, Satya

Narayan Behera, as such, Mr. Behera has been given appointment, one another candidate has also participated under the Scheduled Caste category,

namely, Karna Naik but he having secured higher marks in comparison to the candidates belonging to unreserved category, he has been selected

under Unreserved category. Accordingly one post advertised in the advertisement to be filled up from Scheduled Caste category has been filled up by

said Satyanarayan Behera, as such it is not the case of the petitioner that he has not been considered, rather he has been considered but in course of

comparative assessment of merit of one or the other candidate under his category, he has been found to be less meritorious.

So far as the contention of the petitioner that he is having more length of service as a temporary employee, as such he ought to have been given

preference but this argument is not tenable in the eye of law for the reason that the memorandum of settlement dtd.25.11.2013 stipulates that the

selection is to be made strictly on merit and so far as the condition related to preference is concerned, the same is to be given for consideration of one

or the other candidate as would be evident from clause 5 upon which the learned counsel for the petitioner has given much emphasis but the condition

no.5 if read along with condition no.19, it will be evident on joint reading of the conditions mentioned therein that preference is to be given on the basis

of long length of service in case of tie otherwise also the preference cannot be given over and above merit and that is the reason the condition no.4

specifically stipulates that the candidature of one or the other candidates will be considered strictly on merit. In view of such stipulation in the

memorandum of settlement dtd.25.11.2013 the contention raised by the learned counsel for the petitioner that on the basis of long length of service he

ought to have been given preference is not sustainable, hence rejected.

So far as the contention of the petitioner that under the advertisement less quota for Scheduled Caste category has been advertised since according

to the petitioner it is not in terms of the reservation policy applicable to the Bank, the opposite party herein. But this argument is also not sustainable in

the facts and circumstances of the case reason being that the petitioner has not pleaded anywhere in the writ petition taking the ground that the quota

earmarked for Scheduled Caste category is not in terms of the reservation police, rather he has stated the same in the synopsis-cum-date chart, as

such the same cannot be said to be part of pleading and it is settled that writ petition being the summary proceeding is to be decided on the basis of the

pleading and if there is no pleading with respect to any factual aspect, the same cannot be entertained merely on account of oral argument or even

stated in the synopsis-cum-date chart that too when the opposite party-Bank has already filed counter affidavit disputing the claim of the petitioner.

The other reason is that the petitioner, knowing the fact very well that one vacancy for Scheduled Caste category has been advertised, accepting the

said position as mentioned in the advertisement, has applied in terms of the advertisement and when not declared successful, has raised this argument

orally and it is settled that once a candidate applies and participates in the selection process, he cannot turn around and challenge the condition of the

advertisement. In view of such a settled position, the contention of the petitioner related in this sphere is also not sustainable in the eye of law

according the same is rejected.

In the entirety of facts and circumstances of the case as discussed herein above, according to the considered view of this court, the petitioner has

failed to make out a case for any positive direction in his favour. Accordingly the writ petition fails and it is dismissed.