Sima Debbarma vs Tripura Gramin Bank And Ors

[1] The petitioner is now working as the Officer Junior Management (Scale-I) under Tripura Gramin Bank and by means of this writ petition she has urged this court to grant her the benefit of promotion to the post of Assistant Manager, Officer Junior Management (Scale-I) w.e.f. 2005 and further to direct the respondents to release all service benefits including seniority.

[2] This writ petition has a chequered history. The petitioner, seeking the similar relief, had approached this court by filing two writ petitions, being WP(C) No.288 of 2009 and WP(C) No.67/2012.

[3] By the order dated 28.09.2011, the writ petition, being WP(C) No.288 of 2009, was disposed of with direction to the Chairman, Tripura Gramin Bank to consider the representation of the petitioner dated 17.08.2009 preferably within a period of 3 (three) months from the date of that order. By the order dated 20.08.2015, the writ petition being WP(C) No.67 of 2012 was dismissed as infructuous as the petitioner was promoted to the post of Officer Junior Management (Scale-I) w.e.f. 09.08.2014 by the order under No.TGB/HO/P.F.-637/911-913/2014 dated 12.08.2014, however, the petitioner was granted liberty to approach for redressal if any grievance arises on the representation. The said representation dated 17.08.2019 as referred in the order dated 28.09.2011 delivered in WP(C) No.288 of 2009 was disposed of having categorically held as follows:

"We have carefully examined the circular issued by the Bank vide No.TGB/HO/P&A/Promotion/Cir-61/11778/03 dated 15.11.2003 for promotion from clerical cadre (presently Office Assistant-Multipurpose) to Officer Scale-I where there was no provision for relaxation of marks of 5% for ST/SC candidates in the written examination which you were very much well aware of. You did not raise any objection at that time but appeared the written test held on 23.05.2004, you also did not raise any objection when the result of the said written test was declared and subsequently when the bank implemented the promotion on 23.03.2005 after completing all the process."

[4] The said decision was communicated to the petitioner by their letter under No.TGB/P&A/Vigil./F-232/C/Sect.529/2011 dated 15.11.2011 (Annexure-P/10 to the writ petition).

[5] Thereafter, the petitioner had filed a petition for review and reconsideration of the said decision of the respondents as communicated vide the letter dated 15.11.2011. In the said prayer for review, the petitioner had asserted that had there been extension of such benefit of relaxation of 5% minimum marks, certainly she would have got the promotion to the senior scale. She has also stated that in the year 2009, the benefit of relaxation of essential qualification in respect of SC/ST candidates had been provided but her name was not included in the list of the successful candidates. The petitioner had advanced a plea while passing the order dated 28.09.2011 that she had come to know that the bank authority was ready to consider her representation dated 17.08.2009, Annexure-6 to the writ petition. Thus, it would be proper if the entire writ petition was disposed of, with simple direction to the respondent No.2 to consider the said representation within a time frame. In the letter dated 15.11.2011, the respondent No.2 i.e. the Chairman, Tripura Gramin Bank has categorically stated that no such assurance was ever made to the petitioner. However, the said petition for review dated 07.12.2011, Annexure-P/11 to the writ petition, was also disposed of, with the observation as communicated by the letter No.TGB/HO/F-Misce/651/12 dated 09.01.2012 (Annexure-P/12 to the writ petition). The relevant part is reproduced hereunder:

"The said representation was placed before the Board in the Meeting of the Board of Director held on 23/12/2011 for their perusal and decision. The Board after thorough discussion deferred the matter with observation that the Board is not in a position to take any decision without specific guidelines from the appropriate Authority of the Govt. in respect of whether there was provision of relaxation of 5% marks in written examination for SC/ST candidates in the promotion from office Assistant to officer Scale-1 during that period."

[6] Thereafter, the petitioner was promoted to the post of Officer Junior Management (Scale-I) w.e.f. 09.08.2014 by the office order under No.TGB/HO/P&A/P.F.-637/911-913/2014 dated 12.08.2014 (Annexure-P/13) to the writ petition.

[7] Immediately thereafter, on 07.11.2014, the petitioner filed a representation (Annexure-P/14 to the writ petition) within the representation claiming that the petitioner's seniority should be counted with effect from the year, 2005 and she shall be given all service benefits including the seniority.

[8] The petitioner filed the second writ petition being WP(C) No.67 of 2012, as stated, claiming her promotion to the post of Officer Junior Management (Scale-I). Since, the petitioner was appointed on promotion by the order dated 12.08.2014 the said writ petition being WP(C) No.67 of 2012 stood disposed of as infructuous. Now the petitioner has filed the present writ petition claiming the reliefs as above.

[9] The basic ground on which the writ petition has been filed and structured is that the petitioner ought to have been given relaxation by 5% of marks in the selection test. There is no dispute that the selection test was carried out in terms of the circular dated 15.11.2003 (Annexure-P/4 to the writ petition). The said circular was concerned with the promotion from Clerical Cadre to the Officer Cadre (Scale-I). The provisions are made in detail in respect of the selection process in the following manner:

"The Selection shall be on the basis of performance in the written test, interview and three years performance appraisal reports as per the division of marks given below:-

a) Written Test - 70 Marks.

b) Interview - 20 Marks.

c) Performance appraisal reports - 10 Marks.

Total - 100 Marks.

a) Written Test (70 Marks) :- The Candidates shall be required to appear for written test comprising test in English and test in Banking law, Practice and Procedures including working procedures in the Bank.

70 Marks allotted to written test shall be further divided as under:-

i) English - 35 Marks

ii) Banking law, Practice And procedures - 35 Marks

Total - 70 Marks.

A list of only those candidates who secure a minimum of 40% marks each in English, Banking Law, Practice and Procedures shall be prepared.

The Bank, thereafter, shall prepare the list of selected candidates in the order of Seniority to the extent of two hundred percent of the vacancies for promotion for the purpose of calling for interview.

b) Interview (20 Marks) :- There shall be no minimum qualifying marks in the interview.

c) Assessment of performance appraisal Report:- The performance Appraisal Reports for the proceeding three years of the concerned employees, shall be considered."

[10] The position which is admitted is that petitioner could not come out successful in the selection exercise. At the same time, the petitioner has not controverted the fact that being fully aware of the said process vide the circular dated 05.11.2013 (Annexure-P/4 to the writ petition) she had participated in the written examination, but she was not called for interview as she did not get the minimum qualifying marks as reflected in the said circular dated 15.11.2003. It has been quite categorically provided in the said circular that a list of only those candidates who secured a minimum of 40% marks each in English and Banking Law (Practice & Procedures) shall be prepared. The petitioner's name admittedly did not figure on culmination of the selection process in the list of successful candidates as prepared by the respondent-Bank.

[11] Thereafter, the petitioner was pursuing to get relaxation of 5% of marks as, according to the petitioner, she is entitled to get such relaxation as the Government of India or other Governments are enabled to frame the guidelines providing the relaxation to the reserve category candidate. But the petitioner could not produce any such guidelines or policy providing the said relaxation. This has been the consistent stand of the bank-respondents that no such provision has been made. Even in the reply filed by the respondents No.1 and 2, they have categorically averred and asserted in Para-16 as follows:

"16. That what has been stated in paragraphs 1 to 9 of the writ petition these are all matters of record and so the answering respondent has nothing to reply in regard to these averments(except the relaxation of 5% benefit matter) since there was no relaxation of 5% benefit matter) since there was no relaxation of 5% benefit as S.T. Candidates there prior to 5.10.2007 which was fully aware by the petitioner."

[12] From the reply communicated to the petitioner by the letter dated 15.11.2011 it transpires that in the year 2005, no such policy did exist to relax 5% of marks for ST candidates. Such benefit was introduced w.e.f. 05.10.2007. Even after 05.10.2007, during the selection exercise carried out in the year 2009, the petitioner was not successful and as such it can safely be presumed that even after granting 5% relaxation she could not come out to be included in the list of successful candidates. However, later on she got the promotion in the due process.

[13] The respondents No.1 and 2 have in the reply categorically stated that prior to 05.10.2007 or in the circular dated 15.11.2003 there was no provision to relax the minimum qualifying marks.

[14] The petitioner has claimed a benefit which is not based on any policy having the force to govern the process of selection. The claim of the petitioner, according to the respondents No.1 and 2, is imaginary and not founded on any jurisprudential basis.

[15] The petitioner, however, even after receiving the said reply from the respondents No.1 and 2 has filed the rejoinder to explain the basis of her claim. In the rejoinder, it has been asserted stated for her being a member of schedule tribe, she was entitled to relaxation by 5% to the minimum marks as required to be obtained in the written test to be included in the list of the successful candidates. Even, there is no narrative in respect of what marks petitioner had secured in the written test during the selection exercise of the year 2005.

[16] Mr. Bhowmik, learned counsel has placed a few decision of the apex court in Dhananjay Malilk And Others Versus State of Uttaranchal And Others reported in (2008) 4 SCC 171 in respect that estoppel would not operate against the petitioner. Reference to B. V. Sivaiah And Others Versus K. Addanki Babu and Others reported in (1998) 6 SCC 720 has made in respect of how to prescribe the minimum cut off marks for purpose of selection based on seniority-cum-merit. The said decision, according to this court, is not at all relevant in the present context.

[17] However, Mr. Bhowmik, learned counsel has also referred the decision of the apex court in Asif Hameed and Ors. Vs. State of Jammu and Kashmir and Ors. reported in AIR 1989 SC 1899. The said decision has no relevance in the context as enumerated by the petitioner.

[18] Mr. Bhowmik, learned counsel for the petitioner has relied on the decision of the apex court in Sadananda Halo and Others Vs. Momtaz Ali Sheikh and Others reported in (2008) 4 SCC 619. The said decision again does not have any relevance in the controversy. As this court is not inclined to decide the writ petition on the ground of estoppel by conduct, even though this court is not discarding the objection raised by the respondents No.1 and 2 as regard estoppel, further discussion over that issue is considered not required.

[19] Let this case be decided on merit. This court does not find any policy or circular governing the selection process which provides that 5% relaxation could be made to the minimum qualifying mark earmarked for the written test, in favour of Scheduled Tribe candidate during the exercise undertaken in the year 2005.

[20] Hence, the writ petition is bound to fail, inasmuch as the entire relief is structured on the premise that the petitioner is entitled to get 5% relaxation in the minimum qualifying marks in the written test being a Scheduled Tribe candidate.

[21] Hence, this writ petition stands dismissed. There shall be no order as to costs.