High Court · 2012

d Mr. I. Choudhury, learned counsel for the respondent Nos. 3 to 17.

2. The challenge made in this writ petition is the result for selection for the post of Officer Grade in the respondent Bank. Referring to Rule 25 (a) of t he Assam Co-Operative Apex Bank Ltd. (Staff) Rules, 1980 which is quoted below, it is the case of the petitioner that the Bank could not have relaxed the said qualifying marks, firstly to 40% and then to 30% so as to give promotion to the private respondent. 25. (a) The Department Examination will be held once in a year in the month of A pril regularly. The qualifying marks for passing the examination will be 50% of the total marks. An employee declared pass in the Departmental Examination will be subject to any other rules eligible for promotion to the next higher grade. H e is not required to appear in the same examination in future. For promotion a Board will be constituted by the Managing Director. The Board after considering their service record shall submit its recommendation for promotion of the employees. Promotion shall be given subject to availability of vacancy. Selection for promotion will be made from the list of employees declared pass in order of seniority in service and service record. An employee who passe s the departmental examination will thus gain temporary seniority over the one w ho has not passed the required examination. An employee who fails in the departm ental examination but subsequently passes the same will regain his original sen iority. The selection for promotion will be made from up-to-date seniority list and service record. The Board will recommend the panel of list to the extent of possible vacancies that may occur during the course of the year. The promotion l ist will lapse after one year when a fresh list will be made by holding the Boar d for promotion. (cid:29)

3. Be it stated that the petitioner was also aspirant for the post, but sh e could not qualify in the selection. Be it also stated that in the written exam ination comprising of two papers, the petitioner attempted the first paper and s he did not attempt the second paper. The petitioner having not secured the relax ed norms of 30%, she could not be selected and appointed.

4. Mr. Katakey, learned counsel for the petitioner referring to the above r ule and placing reliance on the decisions reported in (2009) 14 SCC 517 (Tamil N adu Computer Science B.E.D. Graduate Teachers Welfare Society (1) vs. Higher Sec ondary School Computer Teachers Association and ors.) and (2008) 3 SCC 512 (K. M anjusree vs. State of Andhra Pradesh and anr.), submits that the basic requireme nt of 50% of the total marks in the examination could not have been relaxed to 3 0%. According to him such relaxation vitiated the entire selection process and a ccordingly same is liable to be set aside and quashed.

5. Mr. D. Saikia, learned counsel for the respondent Bank on the other hand submits that the promotion was due for the last 10 years and there being stagn ation, the qualifying marks as envisaged in Rule 25 (a) of the aforesaid Rules h ad to be relaxed to 30%. He further submits that even after extending such relax ation, the petitioner could not qualify. According to him, the petitioner havin g not attempted the 2nd paper, she is estopped from making any challenge to the selection and appointment of the private respondents. He further submits that th e resolution of the Board of Directors to relax the qualifying marks to 30% from 50% having not been challenged, the writ petition is not maintainable.

6. To buttress the above argument, Mr. D. Saikia, learned counsel appearing for the respondent Bank has placed reliance on decisions reported in (1996) 5 S CC 167 (M. Venkateswarlu and ors. vs. Govt. of A.P. and ors.) and (2008) 10 SCC 84 (Union of India and ors. vs. Deo Narain and ors.). The decisions on which Mr. Katakey, learned counsel for the petitioner h 7. as placed reliance pertains to recruitment process in the matter of direct recru itment. In K. Manjushree (supra), the Apex Court was concerned with the recruitm ent rules in respect of direct recruitment. It was noticed that the ratio of 3:1 pertaining to written and oral interview was changed to the ratio of 4:1. The m arks for written examination therefore proportionally scaled down to maintain 3: 1 ratio. The marks were relaxed for appointment of A.P. State Higher Judicial S ervice and the Apex Court was concerned with the Statutory Rules, namely A.P. St ate Higher Judicial Service Rules, 1958.

8. In the other case, i.e. Tamil Nadu Computer Science BED Graduate Teacher s Welfare Society (supra), as against the prior decision that those who secured qualifying marks of 50% would be called for subsequent stages of the selection, but later on the persons who secured 35% marks were also called for verificatio n of services. It was held that aforesaid decision of the Govt. changing the qua lifying norms by reducing the same to 35% from 50% after holding the examination , was not sustainable.

9. Unlike the aforesaid two cases, in Deo Narain (supra), on which Mr. Saik ia, learned counsel for the respondent Bank has placed reliance, the Apex Court was concerned with the case of promotion. Referring to the relaxation clause of the Rules, it was held that in exercise of the said rule, the Central Govt. was empowered to relax the provision of rules.

10. In M. Venkateswarlu (supra), dealing with similar provision of relaxatio n, it was held that the authority was empowered to extend the relaxation in appr opriate cases. In that case, the particular incumbent was lacking in the minimum length of service, but the same was relaxed in exercise of the power of relaxat ion.

11. In (1997) 10 SCC 298 (Sandeep Kumar Sharma vs. State of Punjab and ors.) , the Apex Court observed that the power of relaxation even if generally include d in the service rules could either be for the purpose of mitigating hardships o r to meet special and deserving cases. It was further held that rules of relaxat ion must get a pragmatic construction so as to achieve effective implementation of a good policy of the Govt. 12. In the instant case, the Administrative Council of the Bank in its meeti ng held on 01.12.2009 resolved to extent the relaxation of marks to 30% from 50% considering the fact that there was large number of vacancies unfilled for long 10 years and candidates were available to fill up the posts. However, it was e xtremely difficult to get candidates seeking 50% marks. In such a situation, th e Bank decided to lower the qualifying marks from 50% to 30% and when the petiti oner did not secure the said qualifying marks, she could not be promoted. She di d not even try the second paper. However, learned counsel for the petitioner sub mits that when petitioner could realise that she would not secure the qualifying marks of 50%, she had abandoned the second paper.

13. So far as the power of relaxation of the Bank is concerned, learned coun sel for the respondents have referred to Rule 120 of the aforesaid Rules which r eads as follows: (cid:28)120. Where no specific provision has been made in these Rules in respect of any matter, the relevant rules of the State Govt. relating to such matter shall be followed as far as practicable. (cid:29)

14. Mr. D. Saikia, learned counsel for the respondent Bank submits that sinc e the Bank is an instrumentality to the State Govt., as per the aforesaid provis ion, the Bank is entitled to fall back on the Rules of the State Govt. relating to such matter when there is no specific provision. Referring to the rules of r elaxation of the said Rules, he submits that such power of relaxation is availab le with the Bank.

15. However, Mr. Katakey, learned counsel for the petitioner submits that th ere being specific provision, i.e. 50% prescription for qualifying marks, the sa id provision could not have been invoked. I am not inclined to accept the said s ubmission inasmuch as it is one thing to say that rule 25 (a) specifically provi des for 50% qualifying marks, but it is altogether a different thing to invoke s uch a relaxation. It is not the case of the petitioner that but for the promotion of the p 16. rivate respondents, her chance of promotion in any way has been affected. The fa ct of the matter is that the petitioner could not even secure the relaxed marks. Having regard to the fact that there was stagnation for the last 10 years for w hich the Bank was suffering, the Bank authority decided to relax the qualifying marks. I do not find any reason to interfere with the same.

17. rdingly it is dismissed. There shall be no order as to costs. In view of the above, I do not find any merit in the writ petition. Acco