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2022 Supreme(Guj) 236
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Solanki Vipulkumar Virabhai - Appellant
Versus
Institute of Banking Personnel Section (IBPS) - Respondent
R/Special Civil Application No. 6403 of 2021 with R/Special Civil Application No. 15785 of 2021
Decided On : 18-02-2022
For the Petitioner: Mr. Pareshkumar B. Trivedi.
For the Respondents: Mr. Darshan M. Parikh, Ms. Nalini S. Lodha.
Headnote:
Constitution of India, 1950 - Article 12, 226 - Rights of Persons with Disability Act, 2016 - Persons with Disability (Equal Opportunity, Promotion of Rights and Full Participation) Act, 1995 - Sections 20, 33 and 34 – State – Quash – Power of High court to issue writs - Petitioner has prayed that communication issued by Saurashtra Gramin Bank be quashed and set aside and petitioner be allowed to join duty as Office Assistant (Multipurpose) as per allotment made by respondent No.1 - Institute of Banking Personnel Selection allotting petitioner in SC category in respondent No.2 – Bank – Held, It is case of present petitioner that he applied for same post under SC - VI category - His first preference was Baroda Gujarat Gramin Bank and Second preference was Saurashtra Gramin Bank - It is his prayer that he be appointed with respondent Bank under SC category - During course of argument, advocate for petitioner submitted that his case ought to be considered on SC vacancy with respondent No.1 – Bank - In addition to reasons assigned by this Court in SCA, case of petitioner should also fail here on two counts; (a) his first preference was Baroda Gujarat Gramin Bank whereas prayer is that he be appointed under SC category with Saurashtra Gramin Bank - There is no reason forthcoming as to why IBPS despite preference that he gave allotted him to respondent - Saurashtra Gramin Bank - If petitioner claims to be a VI candidate, then, on account of no vacancy being notified of VI category with respondent No.1 Bank, claim of petitioner would fail - (b) On account of his claim if any with Baroda Gujarat Gramin Bank, which was his first preference, not only have VI vacancies been filled in even otherwise his claim as SC candidate cannot be considered with Baroda Gramin Bank without a Bank being made a party to petition - Civil Application dismissed.
JUDGMENT :
1. Rule returnable forthwith. Learned advocates waive service of notice of Rule for the respective respondents.
2. With the consent of the learned advocates for the respective parties, the petitions were taken up for final hearing on 31.1.2022 and reserved for orders.
3. In this petition i.e. SCA No.6403 of 2021, under Article 226 of the Constitution of India, the petitioner has prayed that the communication dated 20.3.2021 issued by the Saurashtra Gramin Bank be quashed and set aside and the petitioner be allowed to join duty as Office Assistant (Multipurpose) as per the allotment made by the respondent No.1 - Institute of Banking Personnel Selection (for short 'IBPS') allotting the petitioner in SC category in the respondent No.2 - Bank.
4. The facts in brief are as under:
4.1. The petitioner applied for the post of Office Assistant (Multipurpose) in response to an advertisement issued by the respondent No.1 - IBPS.
It is the case of the petitioner that he was provisionally allotted by the respondent No.1 to the Saurashtra Gramin Bank - respondent No.2. The petitioner has received an email dated 20.3.2021 by which the respondent No.2 Bank has informed the petitioner that since there was no specific request by the Bank for a visually impaired candidate, his case has been referred to IBPS.
5. Mr. K.B. Pujara, learned counsel for the petitioner would submit that the advertisement issued by IBPS would show that as far as Gujarat is concerned, there were two Banks for which vacancies were notified namely; Baroda Gujarat Gramin Bank and Saurashtra Gramin Bank. For SC category, 14 and 7 vacancies were notified. Two visually impaired (VI) vacancies were notified for Baroda Gramin Bank whereas no vacancy for VI were notified for Saurashtra Gramin Bank. He would submit that merely because the petitioner belonged to VI category, his candidature could not have been rejected. He would submit that this objection of the Bank would be contrary to the protection granted to disabled people under the Rights of Person with Disability Act, 2016 and Persons with Disability (Equal Opportunity Protection of Rights and Full Participation) Act, 1995.
5.1. Mr. Pujara would submit that his first preference was Saurashtra Gramin Bank and the second for Baroda Gujarat Gramin Bank. The receipt received from IBPS would indicate that the petitioner applied for SC - VI - Blindness category. The allotment was provisionally made to the respondent No.2 - Bank against SC category. He would invite the attention of the Court to the scores of online main examination and submit that the petitioner secured 41.25 marks far above cut off.
6. Having therefore being provisionally allotted to the respondent No.2 - Bank, merely because he happened to be Visually Impaired (VI), the denial of allotment to the respondent No.2 - Bank was unfair. In the alternative, it was the case of the petitioner that he be accommodated with the respondent No.2 Baroda Gujarat Gramin Bank.
7. Mr. A.S. Vakil, learned advocate appearing for the respondent No.2 submitted that the Bank had not requested for any VI candidate. The IBPS was fully aware that a requisition was made only for SC candidates and not for any VI candidate.
7.1. Mr. Vakil would rely on various clauses in the advertisement to submit that by mere provisional allotment to the RRB, it would not imply that a candidate will necessarily be eligible for employment. Merely applying for CRP and being short listed does not imply that the candidate will necessarily be offered appointment.
7.2. Mr. Vakil would further submit that the petitioner has clearly stated that he is a person with benchmark disability of 40% and the disability is "VI." There was no question of considering the candidature of the petitioner in any category other than which the petitioner had applied. The petitioner is unnecessarily trying to capitalize on some erroneous statement based on the provisional allotment. The petitioner had asked for help of a scribe and, t
