1. Heard Learned Senior Counsel Mr. Purusuttam Roy Barman assisted by Learned Counsel Mr. Kawsik Nath appearing on behalf of the petitioner. Also heard Learned Senior Counsel, Mr. Sankar Kr. Deb assisted by Learned Counsel, Mr. Saugat Datta appearing on behalf of the respondent No.4 and Learned Addl. G.A., Mr. Mangal Debbarma appearing on behalf of the State-respondents.
2. Taking part in the hearing, Learned Senior Counsel for the petitioner, Mr. Roy Barman drawn the attention of this Court that the respondent-authority issued an advertisement bearing No.01/2023 dated 18.12.2023 for filling up of various posts including State Mission Manager(Financial Inclusion) under Tripura Rural Livelihood Mission and the petitioner applied for the said post under Tripura Rural Livelihood Mission and for personal interview, the petitioner and the respondent No.4 and another were shortlisted but inspite of having requisite qualifications and experience of the petitioner, the respondent No.4 who had no requisite experience was selected by the respondent-authority for the said post arbitrarily. Learned Senior Counsel further drawn the attention of the Court referring para No.3 of the writ petition wherein the required qualification and experience for the said post has been mentioned, which is enumerated herein below:
| Name of the post | Status of Engagement | No of post | Upper Age Limit (Yrs) | Required Educational Qualification | Experience |
| State Mission Manager (FinancialInclusion) | Contractual | 1 | 40 | MBA from a recognized University/I nstitution | Minimum 5 years of work experience in Public or Private Sector Bankincluding at least two years work experience in rural areas. Or Having worked in a registered NBFC/MFI for minimum 5 years |
4. The State-respondents have contested the writ petition by filing counter affidavit denying the assertions of the petitioner in the writ petition. In para No.4 of their counter affidavit, the State- respondents have specifically submitted that the selection was made observing 4 steps i.e. Common Aptitude Test (which is a written test), Group Discussion (GD), Personal Interview (PI) and Rural Attachment Test (RAT) and in all the tests, the respondent No.4 secured more marks than that of the petitioner and also the respondent No.4 had requisite experience for the said post. Thus, the State-respondents appointed her legally for the said post and prayed for dismissal of this writ petition.
5. The private respondent No.4 also denied the assertions of the petitioner and submitted that she had all the requisite qualifications and experience and she secured more marks than that of the petitioner in all the stages and as such, her recruitment for the said post was lawful and justified and prayed before the Court for dismissal of this writ petition.
6. I have heard the parties at length and perused the writ petition, counter affidavit and the documents annexed by the parties in the petition. Regarding educational qualification, there is no dispute on record in respect of the petitioner as well as the respondent No.4. The petitioner in this case only confined his argument in respect of experience of the respondent No.4 because as per advertisement two criteria were mentioned: “either minimum 5 years of work experience in public or private sector banks including at least two years working experience in rural areas or having worked in registered NBFC/MFI for minimum five years”. At the time of hearing, Learned Senior Counsel for the petitioner further drawn the attention of the Court that in para No.4 of the writ petition, the experience of the petitioner was mentioned and submitted that the respondent No.4 had only 5 years and 10 months experience and she had no working experience in registered NBFC/MFI for minimum 5 years and as such, her appointment was totally illegal. The said fact has been denied by the respondent No.4 along with other respondents. Learned Senior Counsel for the respondent No.4, Mr. Sankar Kr. Deb at the time of hearing drawn the attention of the Court that first of all the present petitioner had no locus standi to file this writ petition before this Court because without having any locus standi the petitioner had no right to seek relief for Mandamus without applying for writ of Certiorari.
7. In this regard, reliance was placed by Learned Senior Counsel for the respondent No.4 in Halsbury’s Laws of England wherein the conditions precedent to issue of Mandamus is mentioned as follows:
(iii) Conditions Precedent to Issue of Mandamus
120. Legal right or substantial interest. The applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought, or alternatively that he has a substantial personal interest in its performance. In order that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposes a legal duty; the duty may be to exercise a genuine discretion, or to exercise a discretionary power according to law. It has been said that the court will not enforce an equitable, as distinct from a legal, right by this remedy; but it would seem that an applicant may have a right enforceable by mandamus to secure compliance with a public duty to give effect to his equitable interests.”
Referring the same, Learned Senior Counsel has drawn the attention of the Court that here in the case at hand the petitioner failed to satisfy the Court that he had valid legal right to pray for Mandamus because according to Learned Senior Counsel, the petitioner in all the stages of recruitment secure lesser marks than that of the respondent No.4 and referring Annexure-R/2, Learned Senior Counsel drawn the attention of the Court that the petitioner only secured 73.33% marks whereas the respondent No.4 secured 77.41% which shows that the marks of the respondent No.4 was much more than that of the petitioner. So, the respondent-authority rightly appointed her for the said post.
Further, reliance was placed upon another judgment of the Hon’ble Supreme Court of India reported in AIR 1962 SC 1044 [titled as Calcutta Gas Company(Proprietary) Ltd. v. State of West Bengal and others] wherein in para No.5, Hon’ble the Apex Court observed as under:
“5. The first question that falls to be considered is whether the appellant has locus standi to file the petition under Art. 226 of the Constitution. The argument of learned counsel for the respondents is that the appellant was only managing the industry and it had no proprietary right therein and, therefore, it could not maintain the application. Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Madan Gopal 1952 SCR 28: (AIR 1952 SC 12) this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Art. 226 of the Constitution. In Charanjit Lal Chowdhuri v. Union of India, 1950 SCR 869: (AIR 1951 SC 41), it has been held by this Court that the legal right that can be enforced under Art. 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. We do not see any reason why a different principle should apply in the case of a petitioner under Art. 226 of the Constitution. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. The question, therefore, is whether in the present case the petitioner has a legal right and whether it has been infringed by the contesting respondents. The petitioner entered into an agreement dated July 24, 1918, with respondent No.5 in regard to the management of the Oriental Gas Company. Under the agreement, the appellant was appointed as Manager and the general management of the affairs of the Company was entrusted to it for a period of 20 years. The appellant would receive thereunder by way of remuneration for its services, (a) an office allowance of Rs. 3,000/- per mensem, (b) a commission of 10 per cent on the net yearly profit of the Company, subject to a minimum of Rs. 60,000 per year in the case of absence of or inadequacy of profits, and (c) a commission of Re.1 per ton of all coal purchased and negotiated by the Manager. In its capacity as manager, the appellant-Company was put in charge of the entire business and its assets in India and it was given all the incidental powers necessary for the said management. Under the agreement, therefore, the appellant had the right to manage the Oriental Gas Company for a period of 20 years and to receive the aforesaid amounts towards its remuneration for its services. Section 4 of the impugned Act reads:
“With effect from the appointed day and for a period of five years thereafter-
(a) the undertaking of the Company shall stand transferred to the State Government for the purpose of management and control;
(b) the Company and its agents, including managing agents, if any, and servants shall cease to exercise management or control in relation to the undertaking of the Company;
(c) all contracts, excluding any contract or contracts in respect of agency or managing agency, subsisting immediately before the appointed day and affecting the undertaking of the Company shall cease to have effect or to be enforceable against the Company, its agents or any person who was a surety thereto or had guaranteed the performance thereof and shall be of as full force and effect against or in favour of the State of West Bengal and shall be enforceable as fully and effectively as if instead of the Company the State of West Bengal had been named therein or had been a party thereto:”
Under the said section, with effect from the appointed day and for a period of five years thereafter, the management of the Company shall stand transferred to the State Government, and the Company, its agents and servants shall cease to exercise management or control of the same. Under Cl.(c) of the section, the contracts of agency or managing agency are not touched, but all the other contracts cease to have effect against the Company and are enforceable by or against the Company are are enforceable by or against the State. It is not necessary in this case to decide whether under the said agreement the appellant was constituted as agent or managing agent or a servant of the Oriental Gas Company. Whatever may be its character, by reason of S. 4 of the impugned Act, it was deprived of certain legal rights it possessed under the agreement. Under the agreement, the appellant had the right to manage the Oriental Gas Company for a period of 20 years and to receive remuneration for the same. But under S. 4 of the impugned Act, it was deprived of that right for a period of five years. There was certainly a legal right accruing to the appellant under the agreement and that was abridged, if not destroyed, by the impugned Act. It is, therefore, impossible to say that the legal right of the appellant was not infringed by the provisions of the impugned Act. In the circumstances, as the appellant’s personal right to manage the Company and to receive remuneration therefor had been infringed by the provisions of the statute, it had locus standi to file the petition under Art. 226 of the Constitution.”
Referring the same, Learned Senior Counsel submitted that the petitioner had no locus standi to seek redress for Mandamus in this case, as such, the same is liable to be rejected with costs.
Lastly, Learned Senior Counsel relied upon another judgment of the Hon’ble Supreme Court of India reported in AIR 1977 SC 276 [titled as Mani Subrat Jain etc. etc., v. State of Haryana and others] wherein para No.9 Hon’ble the Apex Court observed as under:
“9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something (See Halsbury’s Laws of England 4th Ed. Vol. I, paragraph 122); State of Haryana v. Subash Chander, (1974) 1 SCR 165=(AIR 1973 SC 2216); Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed,(1976) 3 SCR 58 =(AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198.”
Referring the same, Learned Senior Counsel has drawn the attention of the Court that since the present petitioner has failed to make out a case for issuing writ of Mandamus, as such, the present petition is liable to be dismissed.
8. Learned Senior Counsel, Mr. Deb again drawn the attention of the Court relying upon Annexure-A and Annexure-B of the reply to rejoinder affidavit filed by the respondent No.4 wherein it is crystal clear that the respondent No.4 had requisite experience of having worked in registered NBFC/MFI for minimum 5 years. So, the respondent-authority rightly appointed the respondent No.4 for the post of State Mission Manager (Financial Inclusion) and since form the aforesaid documents, it is clear that the respondent No.4 had the requisite experience, so, the plea taken by the petitioner in rejoinder affidavit in para No.6 cannot have any legal stand.
9. On the other hand, Learned Senior Counsel, Mr. P. Roy Barman referring the counter affidavit filed by the respondent No.4 submitted that the statement of respondent No.4 in para No.7 of the counter affidavit and her subsequent affidavit against the rejoinder appears to be contrary to each other. So, according to Learned Senior Counsel, the respondent No.4 had no valid requisite experience to be appointed for the said post. In para No.7 of the counter affidavit, the respondent No.4 made the following assertions:
“7. The statements made in paragraph 12 of the petition are strongly and vehemently denied and disputed. The contention of the petitioner that the respondent No.4 has not ever worked in rural areas in accordance with the criteria mentioned in the Advertisement No.01 of 2023 are strongly disputed. The respondent No.4 was appointed under No.UJJ/KOL/35951/ER-OFR/03/1361 dated 18.06.2016. The said Ujjivan is a registered NBFC and such appointment of the respondent No.1 continued till 1st March, 2022 which was registered as Ujjivan, a Micro Financial Institution subsequently declared as a Small Financial Banking Institution. As such the respondent No.4 satisfies the experience required under the Notification dated 08.12.2023 (Annexure 1 to the writ petition). It may however be stated that the petitioner himself worked to the said post prior to joining of the respondent No.4 under Ujjivan Financial Service Limited and he himself has claimed the experience of his working in the said Ujjavan Financial Service Limited as a valid experience earned by him. It is however stated that though the petitioner has stated he acquired the require experience but the statements made in the said petition do not satisfy as such in as much as the first part of the experience required Minimum 5 years of work experience in Public or Private Sector Bank including atleast two years work experience in rural areas. The experience schedule as stated by the petitioner in Paragraph 4 of the petition, never and nowhere demonostrates about the satisfaction of the requisite qualification in as much as he claims to have 5 years of work experience in banking sector which must invariably also include atleast 2 years work experience in rural areas. Nowhere the petitioner has stated and claimed that he satisfied the same experience as is required under the said advertisement while on the other hand the respondent No.4 satisfies the alternative to experience as required under the said advertisement (Annexure 1 to the writ petition).”
And also in para No.6 and 8 of the reply to the rejoinder affidavit filed by the respondent No.4, the said respondent also made the following assertions:
“6. With regard to the statements made in the Rejoinder Affidavit, I say that I have worked for more than 5 years in Ujjivan Financial Services Banks. Initially I joined the Ujjivan Financial Services Limited on 21.06.2016 and it was fully an NBFC/MFI to serve the underserved areas which includes rural areas too. Thereafter, the Ujjivan Financial Services Limited graduated to Small Finance Bank. It is to be mentioned here that all such SFBs when they become bank from NBFC. MFIs to SFBs when they become bank from NBFC. MFIs to SFBs they maintain the existing businesses and existing clients, area of operations etc. and alongwith that these SFBs they were allowed to add new businesses. So, there was no surrender of existing businesses and clients and just the new businesses added due to the change of status from NBFC/MFI to Small Finance Bank.
As per the RBI, press release-2014-2015/1090 dated 27.11.2024 it was clearly mentioned here that “The Small Finance Bank shall primarily undertake basic banking activities of acceptance of deposits and lending to unserved and underserved sections including small business units, small and marginal farmers, micro and small industries and other undergoing sector entities.” Also mentioned “there will not be any restriction in the area of operations of small finance banks”. May be seen at Annexure 1. Due to the technological advancements, service area concept was withdrawn by the RBI during 2014, the details have given at Annexure B.
Therefore, it is clearly evident that Ujjivan Financial Services or the Ujjivan Small Finance Bank has served in underserved including rural areas and simultaneously. The same experience is also counted by the Tripura Rural Livelihood Mission.
So, it is clearly evident that I have required experience of NBFC/MFI/Banks including the experience of rural segment which allowed the screening committee of TRLM to shortlist me to appear the recruitment process. I secured the top of the merit list through my performance during the recruitment process.
I have worked in Small Finance Bank for more than 5 years. And the mandate of Ujjivan Small Finance Bank is to serve in rural underserved areas, farmers, small and micro businesses, and more over as per RBI the businesses of Ujjivan Small Finance Bank is not limited to any urban area and the branches are also serving the rural areas. Moreover, the additional experience of mine in core MFI/NBFC makes me more strong candidate for TRLM.
As per the RBI branches having no service area limitation may kindly be seen at Annexure 2. Moreover, as per RBI SFBs are not limited to any urban/rural areas, therefore, working in any branch at Agartala does not define that I do not have experience for dealing in rural area. Now a days banking is not limited to brick and mortar branches, an urban branch is also serving in rural areas through various channels, and for SFBs it is the fact. The petitioner’s claim is absolutely full with pre- conceived notion about him. Here, it is also mentioned that, the petitioner worked in the private bank branch of HDFC, he claimed that he worked for Rural segment and sitting in urban branches. Even while earlier working in TRLM, the petitioner was posted at the State level office of TRLM not in the rural areas.”
10. So, after hearing both the sides and also after going through the relevant documents filed by the parties as well as the writ petition and the counter affidavit submitted by the respondents, it appears that in the process of selection, the present petitioner could not secure more marks than that of the respondent No.4 although he was shortlisted and called for personal interview and as such, the respondent-authority rightly appointed the respondent No.4 for the post of State Mission Manager (Financial Inclusion). Furthermore, the respondent No.4 also had the requisite experience to serve in NBFC/MFI for minimum 5 years which has been duly considered by the respondent No.3. Moreso, since the petitioner could not satisfy the Court that he had the legal right to file this writ petition challenging the appointment of respondent No.4, as such, this writ petition filed by the petitioner praying for issuing writ of Mandamus also does not appears to be valid in the eye of law. The petitioner has failed to make out any case for issuing Mandamus against the respondents for quashing the memo dated 10.12.2024 issued by the Chief Executive Officer, Tripura Rural Livelihood Mission.
11. In the result, the writ petition filed by the petitioner is found to be bereft of merit. Accordingly, the same stands dismissed. No order is passed as to costs.
Pending applications(s), if any, also stands disposed of.