Court No. - 38
Case :- WRIT - A No. - 21476 of 2007 Petitioner :- Ram Bahadur Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yogesh Kumar Saxena,Ram Sumer Chaudhary Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. A Class IV post was advertised on 28th July, 2003 in the Registration Department of the State of U.P. at Banda. Permission in that regard was granted by the competent authority on 4th July, 2003. Advertisement was duly published on 28th July, 2003, which permitted an applicant, who has passed Class Vth and otherwise knows to ride a bicycle, was eligible to apply. All persons who possess such qualification were permitted to appear alongwith their photographs and certificates for Interview on 8.8.2003. Petitioner alongwith thirty nine other candidates applied and a Selection Committee duly examined the candidature of such persons. Petitioner was placed at Serial No. 1 by the Selection Committee and an appointment letter was issued to him on 8.8.2003. This order mentions that a temporary appointment is being given to petitioner and he shall be placed on probation for a period of one year.
2. It is not in issue that petitioner continued to work pursuant to such appointment letter and was also drawing salary. A complaint apparently was made against him. This complaint is not on record but in substance it suggests that petitioner has manipulated Class Vth certificate and that the recruitment itself was not undertaken in a fair and transparent manner. Certain administrative enquiry is said to have been conducted whereupon a show cause notice was issued to the petitioner. Petitioner replied to the show cause notice denying the averments made therein. The appointing authority on 17th April, 2007, has proceeded to cancel petitioner's appointment by observing that the appointment itself was offered in an illegal manner by violating the law. It is this order dated 17th April, 2007, which is assailed in this writ petition.
3. Learned counsel for the petitioner submits that the petitioner was offered substantive appointment, inasmuch as, the vacancy was advertised and proceedings for selection were undertaken in accordance with the Subordinate Officers, Ministerial Staff (Direct Recruitment) Rules, 1985. It is then urged that eligibility, as was specified in the advertisement was possessed by the petitioner and he also completed the specified one year term during which the petitioner had to remain on probation. It is submitted that merely on certain unsubstantiated complaint the petitioner could not have been terminated from service, particularly, when no disciplinary enquiry was conducted against him.
4. A counter affidavit has been filed in which it is averred in paragraphs 14 and 21 that petitioner's Class Vth certificate was manipulated and that the proceedings for selection were otherwise not fair and transparent.
5. I have heard Sri Gulrej Khan, learned counsel for the petitioner, learned Standing Counsel for the State - respondents and perused the materials placed on record.
6. The appointment offered to the petitioner, essentially has been cancelled, on following two charges:-
“(i) The petitioner's appointment was contrary to law and lacked transparency;
(ii) The petitioner otherwise did not possess eligibility in terms of the advertisement.”
7. So far as the first issue is concerned, it is not in dispute that the District Registration Officer had initiated steps to fill up the backlog post on the basis of a permission granted by the competent authority on 4th July, 2003. The advertisement was also issued on 28th July, 2003. This advertisement is at page 54 of the writ petition. The advertisement specifies the qualification which has already been noticed above and the candidate had to appear for Interview on 8.8.2003. There is no cut-off date specified in the advertisement by when the candidate could apply. For all practical purposes, 8.8.2003 was the last date, by when the application itself could be made and the candidate had to participate in the Interview. One of the issues, which appears to have prevailed with the authorities is that on the date of issuance of advertisement i.e. 28.7.2003, the petitioner was not registered with the Employment Exchange and that he did so only on 6.8.2003. This fact in itself would not lead to an irresistible conclusion that petitioner's appointment lacked fairness and transparency. The registration with the Employment Exchange was one of the necessary conditions and the same was possessed by the petitioner. The last date of making application and for appearing in Interview was 8.8.2003. Admittedly prior to this date, the petitioner had been registered with the Employment Exchange. The advertisement was duly published. Apart from petitioner, thirty nine other persons had participated. The Selection Committee was duly constituted, which consisted of four persons and the merits of all candidates were examined. The selection proceedings are otherwise not doubted, nor its conclusion is questioned for any valid ground. Once the petitioner has been appointed pursuant to such selection proceedings, the appointment so offered could not have been questioned only on the ground that petitioner had secured registration with the Employment Exchange after the issuance of date of advertisement. This would be particularly so, as no last date for making of application was otherwise specified in the advertisement and any body could participate by appearing before the Committee on 8.8.2003. The eligibility had to be seen on 8.8.2003, which was clearly possessed by the petitioner.
8. The second reason, which appear to have been prevailed with the authorities to non-suit the petitioner is that his Class Vth certificate contain an interpolation. The marksheet has been issued on a format which is of the year 2001 and the year 2001 has been scored out and the year has been specified as 1984.
9. Learned Standing Counsel for the State submits on the basis of this document that petitioner's certificate of having passed Class Vth is a manipulated and forged document.
10. So far as the genuineness of certificate is concerned, the respondents themselves have got an enquiry conducted in the matter. The Headmaster of the Institution concerned was associated in the enquiry and his statement has also been recorded, copy of which is Annexure 7 to the writ petition. The Headmaster has certified that petitioner had passed Class Vth examination in 1984 and that a duplicate certificate was issued to the petitioner by him on 16.9.2002. He has categorically stated that the available format was of the year 2001 had been utilised for issuing the certificate of petitioner who had passed Class Vth examination in 1984. Not much can be inferred from the mere fact that certificate has been issued to petitioner on a format printed for a subsequent year. It is quite possible that on the date of issuance of such certificate in the year 2002, the available certificate was used. The Headmaster has clearly admitted that the cutting was done by him in his own handwriting and that the 1984 register was available on record and that duplicate certificate was issued after tallying petitioner's marks from it. The certificate of the Headmaster as also his statement is not shown to be unreliable for any valid reason. The fact that petitioner has passed Class Vth in 1984 is otherwise not doubted with reference to any cogent material. In that view of the matter, the authorities were clearly not justified in discarding petitioner's claim for appointment or doubting the fairness of appointment only due to the cutting in the Class Vth certificate.
11. The mere fact that names of all registered persons had to be sent by the Employment Exchange, would otherwise not be necessary before candidature of an applicant could be considered, inasmuch as, under the relevant enactment a person who is already registered could directly approach the employer and participate in the selection proceedings. Sub-section (4) of Section 4 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (Act 31 of 1959), clearly provides that it shall not be obligatory upon the employer to recruit any person merely because vacancy has been notified under any of those sub-sections. Section 4 of Act of 1959, is reproduced hereinafter:-
“4. Notification of vacancies in employment exchanges: 1. After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establishment notify that vacancy to such employment exchanges as may be prescribed.
2. The appropriate Government, may, by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment may be prescribed, exchanges as and the employer shall thereupon comply with such requisition.
3. The manner in which the vacancies referred to in sub- section (1) or sub-section (2) shall be notified the employment exchanges and the particulars or employments in which such vacancies have occurred about to occur shall be such as may be prescribed.
4. Nothing in sub-section (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those sub-sections.”
12. The import of the aforesaid provision has been examined by the Apex Court in Union of India and others Vs. Pritilata Nanda reported in (2010) 11 SCC 674. Paragraphs 17 to 21 would be relevant for the present purposes, and are extracted hereinafter:-
“17. The requirement of notifying the vacancies to the employment exchange is embodied in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short, `the 1959 Act'), but there is nothing in the Act which obligates the employer to appoint only those who are sponsored by the employment exchange. Section 4 of the 1959 Act, which provides for notification of vacancies to employment exchanges reads as under:
"4(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed.
(2) The appropriate government may, by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.
(3) The manner in which the vacancies referred to in sub- section (1) or sub-section (2) shall be notified of the employment exchanges and the particulars of employments in which such vacancies have occurred or are about to occur shall be such as may be prescribed.
(4) Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchanges to fill any vacancy merely because that vacancy has been notified under any of those sub- sections."
18. A reading of the plain language of Section 4 makes it clear that even though the employer is required to notify the vacancies to the employment exchanges, it is not obliged to recruit only those who are sponsored by the employment exchanges. In Union of India v. N. Hargopal (1987) 3 SCC 308, this Court examined the scheme of the 1959 Act and observed: (SCC pp. 313 & 315, paras 4 & 6) "4. It is evident that there is no provision in the Act which obliges an employer to make appointments through the agency of the Employment Exchanges. Far from it, Section 4(4) of the Act, on the other hand, makes it explicitly clear that the employer is under no obligation to recruit any person through the Employment Exchanges to fill in a vacancy merely because that vacancy has been notified under Section 4(1) or Section 4(2). In the face of Section 4(4), we consider it utterly futile for the learned Additional Solicitor General to argue that the Act imposes any obligation on the employers apart from notifying the vacancies to the Employment Exchanges...
* * * 6. It is, therefore, clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been sponsored by the Employment Exchanges."
(emphasis supplied)
19. In K.B.N. Visweshwara Rao's case, a three-Judge Bench of this Court considered a similar question, referred to an earlier judgment in Union of India v. N. Hargopal (supra) and observed: (K.B.N. Visweshwara Rao case, SCC pp. 217018, para 6) "6......It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/ establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
By applying the ratio of the above noted judgments to the case in hand, we hold that the concerned authorities of the South Eastern Railway committed grave illegality by denying appointment to the respondent only on the ground that she did not get her name sponsored by an employment exchange.
20. The issue deserves to be considered from another angle. It was neither the pleaded case of the appellants before the Tribunal and the High Court nor any evidence was produced by them to prove that notification/advertisement dated 31.1.1987 was sent to all the employment exchanges including the special employment exchanges in the State of Orissa. Before this Court also, no document has been produced to show that the advertisement was circulated to the employment exchanges in the State. In this backdrop, it is not possible to approve the stance of the appellants that the respondent was not appointed because she did not get her candidature sponsored by an employment exchange.
21. We also agree with the High Court that once the candidature of the respondent was accepted by the concerned authorities and she was allowed to participate in the process of selection i.e., written test and viva voce, it was not open to them to turn around and question her entitlement to be considered for appointment as per her placement in the merit list on the specious ground that her name had not been sponsored by the employment exchange. In our considered view, by denying appointment to the respondent despite her selection and placement in the merit list, the appellants violated her right to equality in the matter of employment guaranteed under Article 16 of the Constitution.”
13. Before concluding, it would also be worth noticing that petitioner was not only appointed but he had already completed more than four years service by the time the order impugned has been passed. Though an attempt is made to suggest that petitioner's appointment was temporary but such stand is not liable to be accepted in view of the settled legal proposition that an employee would be placed on probation, only if he has been substantively appointed. The appointment letter clearly records that petitioner would be on probation for a period of one year. As against this, the petitioner had completed more than four years service and there is no material to suggest that his working was not satisfactory. The petitioner's services, therefore, would have to be treated as that of a confirm employee. Law is settled that such permanent appointment could not have been cancelled without following the procedure required in law. No disciplinary enquiry was initiated or conducted in the matter. Mere fact that petitioner's name was not forwarded by the Employment Exchange, therefore, would not be fatal to his cause. In that view of the matter, the cancellation of petitioner's appointment for the reasons as set out in the order impugned cannot be sustained. The writ petition succeeds and is allowed. No order is passed as to costs.
Order Date :- 31.7.2019 Ranjeet Sahu