Bund La vs State Of Chhattisgarh

This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking for the following reliefs:

“(i) That, the Honourable Court may kindly be pleased to issue notices to the respondents, returnable within early date of hearing.

(ii) That, the Honourable Court may kindly be pleased to set aside the impugned order dated 02.04.2014 (Annexure P/1) passed by respondent No.2.

(iii) That, the Honourable Court may kindly be pleased to issue a writ in the nature of mandamus directing the respondent to reinstate the petitioner back in service with all consequential benefits.

(iv) That, the Honourable Court may kindly be pleased to issue any other writ or writs/ order or orders/ direction or directions which deemed fit and proper in the interest of justice.

(v) Cost of the petition.

Brief facts of the case as projected by the petitioner are that, the petitioner was earlier working on the post of Assistant Grade-III in the Tahsil Office Udaipur, as per the appointment order dated 23.08.2012 issued by the Collector, Surguja and during the service, he participated in the selection for the post of Training Officer conducted by the respondent authorities as he was having all the requisite qualifications for appointment on the post of Training Officer.

That, in clause No.9 of advertisement, the process of selection has been prescribed and according to the same, a joint Merit-list (subject-wise) will be prepared on the basis of the percentage of marks obtained by the eligible candidates in their minimum qualification examination & technical education examination. The present petitioner was having the eligible qualification, hence he has applied for the post of Training Officer under the reserved category of Schedule Tribe candidate and the selection committee after verifying his eligibility, found him fit for the post of Training Officer and thus, called him in the interview vide letter dated 01.10.2012. Thereafter, the Selection Committee has found the petitioner fit for appointment on the post of Training Officer, therefore, vide its letter dated 10.01.2013 appointed the petitioner on the post of Training Officer under the Schedule Tribe Category in pay-scale of Rs.9300-34800+ Grade-pay 4200/- and posted at ITI, Ramanuj Nagar, District Surajpur.

In compliance of the aforesaid appointment order, after giving resignation from the post of Assistant Grade-III, the petitioner has submitted his joining report on the post of Training Officer in the office of respondent No.4. The petitioner was discharging his duty with all sincerities & devotions, but in the meantime all of a sudden, the respondent No.3 has issued a Show-Cause Notice to the petitioner alleging inter-alia that, while preparing the Merit-list, during the course of selection erroneous marks was given to him in the head of High School Examination by counting 349 marks out of total 500 marks in place of total 600 marks. The present petitioner thereafter submitted his reply to the Show-Cause Notice before the respondent No.3, but the respondent No.2 & 3 have not considered the same and has passed the impugned order vide Annexure P/1 on 02.04.2014, whereby removed the petitioner from the post of Training Officer, hence this petition.

Learned counsel for the petitioner submits that the impugned order passed by the respondent No.2 & 3 is violative of Article 311 of the Constitution of India, hence, the same is not sustainable in the eye of law. He submits that the Selection Committee after verifying the eligibility of the present petitioner, exercising the discretion vested in it selected the present petitioner, hence, the respondent No.2 is not empowered under the Law to overruled/set-aside the order of appointment passed in favour of the petitioner. The petitioner is a Scheduled Tribe candidate and there is no fault on his part, but the respondent authorities have wrongly cancelled his appointment after lapse of about one year & three months. He further submits that the respondent authorities have not conducted full-fledged departmental enquiry before terminating the service of the petitioner, hence the order impugned is violative of the principles of natural justice. He submits that the petitioner was removed from the post of Training Officer on the basis of allegations, hence an enquiry must be conducted before imposing major punishment i.e. removal from service, but the respondent authorities after giving a formal Show-Cause Notice directly removed the petitioner from the post of Training Officer, which is contrary to the service Law. The impugned order passed by the respondent authorities is violative of Rules 15 & 16 of the Chhattisgarh Civil Services (CCA) Rules, 1966.

Learned counsel for the petitioner further submits that the petitioner was appointed under the reserved category of Schedule Tribe candidate, hence, even if his marks is reduced, but the respondent authorities have not considered the same while passing the impugned order. The respondent authorities have not considered the reply to the Show-Cause Notice filed by the petitioner and has passed the impugned order in a most cryptic manner without application of mind. The petitioner has joined the post of Training Officer after giving resignation from his earlier post of Assistant Grade-III, but the respondent authorities have failed to consider the same, before terminating the petitioner. The punishment imposed upon the petitioner is disproportionate and not sustainable in the eye of Law, as such the counsel for the petitioner prays for quashment of the impugned order.

Learned counsel appearing for the respondents No. 1 to 4 submits that the petitioner and other candidates were called for interview vide letter dated 01/10/2012 (Annexure P/5) and after the interview, the Selection Committee has recommended the name of petitioner for appointment by calculating the marks awarded for educational and technical qualifications as total 67.75. After interview, a combine merit list of candidates for the Computer Operator and Programming Assistant Trade was prepared (Annexure R/1). In the said combined list, the name of petitioner appeared at serial No.155 and from a bare perusal of the said list, at column No.13 which asks for total marks in the educational examination, 500 marks have inadvertently and mistakenly been mentioned. Since the petitioner obtained much higher marks than other candidates, therefore, the petitioner has been placed at serial No.9 in the final select list (Annexure R/2). From bare perusal of the said final merit list, at column No.13 which asks for total marks in the educational examination, 500 marks have mistakenly been mentioned. The name of the petitioner has been recommended for appointment and on the recommendation of the Selection Committee, the petitioner has been appointed to the post of Training Officer for Dress Making Trade vide appointment order dated 10/01/2013 (Annexure P/6). On the appeal preferred under the Right to Information Act against the appointment of the petitioner, a meeting of the Selection Committee has been convened on 13/01/2014 in which after verification of the certificates of the petitioner and documents, it has been found that in the selection list, for educational qualification, 500 for total marks and 349 for marks obtained have been mentioned, whereas in the educational qualification of the petitioner, actual 600 total marks should be mentioned. Copy of the minutes of the meeting dated 13/01/2014 is Annexure R/3. After the meeting, a notice dated 21/04/2014 (Annexure P/8) has been issued to the petitioner and in turn, the petitioner has submitted his explanation dated 07/02/2014 (Annexure P/9) and after considering the reply submitted by the petitioner, the impugned order dated 02/04/2014 (Annexure P/1) has been passed by which the services of the petitioner have been terminated by cancelling the appointment order dated 10/01/2013. The erring officers, who have prepared the said wrong list of the candidates have also been issued notices on 27/01/2014 (Annexure R/4). In view of the above factual position, the appointment of the petitioner has been made on the basis of his wrong placement and after due verification, it has been found that the petitioner has been illegally appointed to the post of Computer Operator and Programming Assistant and therefore, after affording the opportunity of hearing to the petitioner, the impugned order dated 02/04/2014 (Annexure P/1) has been issued terminating the petitioner from service which is just, proper and legal. Thus, this petition is without any merit and liable to be dismissed.

I have heard the contentions put forth by learned counsel for the parties and perused the material available on the record.

It is not disputed in this case that the petitioner was appointed as per order dated 23.08.2012 (Annexure P/2). The petitioner joined the said post, thereafter, vide order dated 02.04.2014 (Annexure P./1) the petitioner was terminated from his post. Before passing the order of termination only one show cause notice was issued to the petitioner. It is also not disputed that no inquiry was conducted against the petitioner and only show cause notice (Annexure P/8) dated 24.01.2014 was issued to the petitioner. In this notice, the allegation made against the petitioner is as under:

It is clear from this notice that before issuance of this notice on 24.01.2014, the selection committee was decided for terminating the petitioner, as meeting was conducted on 13.01.2014 and on this meeting it was resolved that recommendation of selection of petitioner was cancelled. Thus, it is clear from the notice that this notice is a mere formality and no proper opportunity of hearing was given to the petitioner. The act of the respondents is against the principles of natural justice. It is also not disputed that the petitioner was working in other department and after selection he was resigned from his previous department and the joined the respondents' department and after serving for more than one year, he was terminated without any preliminary or departmental inquiry.

The Hon'ble Apex Court dealing with the similar issue in the matter of “Avtar Singh v. Union of India and Others” reported in (2016) 8 SCC 471, held in para 34, 35, 38.10 & 38.11 as under:

“34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.

Suppression of "material" information presupposes that what is suppressed that "matters" not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.”

Likewise, it is also relevant to take note of the conclusion part of the judgment in the case of “Avtar Singh” (supra), wherein the Hon’ble Apex Court in para No. 38.10 & 38.11 held as under:

“38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.”

Looking to the aforesaid facts and circumstances of the case and the principles laid down by the Hon'ble Apex Court, the impugned order dated 02.04.2014 (Annexure P/1) is set-aside. Consequently, the petitioner is reinstated with all consequential benefits. However, liberty is granted to the respondents to issue proper show cause notice to the petitioner and after affording proper opportunity of hearing pass order in accordance with law.

With the aforesaid observations and directions, the present writ petition allowed and stands disposed of.