Asgar Ali vs State and Others

Petitioner came to be appointed as Accounts Clerk in the pay scale of Rs. 475850. The order by which petitioner came to be so selected has

been placed on record as annexurePl. For facility of reference, this order is being reproduced below:

Office of the Chairman, Divisional/District Recruitment Board, Kargil. Shri Asgar Ali, No: DRBK/Selec5/83. S/o Rustum, Dated: 24111983.

R/o Sh. Kharboo.

Sub:Selection of candidates for appointment of Accounts Clerk.

You have been selected as Accounts Clerk in the grade of Rs.475850 in the Education Department,Kargil. You should report to the concerned

Department alongwith the following certificates in original within 21 days of the date of the issue of this selection letter, failing which the selection

order shall stand cancelled.

Qualification certificate;

Age and health;

Character;

State Subject.

Sd/

(Mohammad Khalil) Chairman, Divisional/District

Recruitment Board, Kargil"".

The further fact is that after verifying the qualification certificate, age and health; character and status of the petitioner as State subject, further

order was issued by the District Education Officer, Kargil. The further fact is that another order was issued. Copy of this order is annexureP3. The

recital in the order was that minimum qualifications which were required for this post were not possessed by the petitioner .It was accordingly felt

that the petitioner could be given the job of Junior Assistant or a teacher. It is this order which came to be challenged in this court.

Ld. counsel appearing for the petitioner submits that the order (annexure p 3) is not based on proper appreciation of the factual position. It is

stated that the petitioner did possess the basic qualifications' is further submitted that the respondentState verified qualification certificate and other

qualifications. For this pointed, reference is being made to orders PI and P2 .It is accordingly urged that the State is estoppel from not taking a

stand to the effect that petitioner being not qualified, was not entitled to hold the post of Accounts clerk. The plea of equitable estoppel has thus

been pressed in service. So far as the claim of equitable estoppel is concerned, reference be made to one of the earliest decisions on the subject

reported as Registrar, University of Madras Vs. Sundara Shetti, AIR 1956 Mad 309. In this case the petitioner appeared for Secondary School

Leaving Certificate examination held by Government of Madras in March 1952. Certificate was given by the University that he is eligible for

admission in Madras University. While he was undergoing his course of study, he was informed by the Principal of the College that his admission is

liable to be cancelled as his name was not found mentioned in the list of candidates eligible for University course of study. This was challenged in

the High Court. While dealing with this aspect of the matter, Rajamannar, C.J. in para 15 observed:

It was not suggested by the University that the petitioner in this case knew that he had not been declared eligible and that his action was mala fide

in embarking on a course of University study. Nor was it suggested that he had procured endorsement of eligibility by fraud or improper means. In

these circumstances, we consider that a Mandamus should issue both to the University of Madras and to the Principal of the Thiagaraja College to

forbear from preventing the petitioner for the intermediate examination in due course.

This principle of equitable estoppel was made applicable by the Andhra Pradesh High Court in K.Jagannadham v. District Collector Kurnool.

AIR 1966 Andh Pra. 59. In this case a probationer was discharged on the ground that he was not competent to appear for competitive

examinations. There was no concealment of facts on the part of the petitioner. The order of Government cancelling the appointment of petitioner

was quashed. The learned Single Judge placed reliance on an unreported Division Bench decision of that court in writ petition No.332/ 57. This

was noticed in para9 and reads as under:

A more direct decision was rendered on 9121960 by a Division Bench of this court composed of Chandra Reddy, C.J. and Rama Chandra

Rao,J. in W.P. No 332 of 1957(Andh. Pra.) The facts of that case are very close to the facts of the present case. The petitioner applied to the

Service Commission for permission to sit for a competitive examination and it was granted. He passed the examination. Some time later, he was

informed that he was selected provisionally for appointment as Lower Division Clerk in the Office of the Director of Agriculture and Fisheries,

Andhra. In pursuance of this, he was duly appointed and was given training for three months from 571956 to 4101956 .But in April 1957, the

Public Service Commission sent a memorandum to him that he should have obtained 35 per cent of marks in the optional subject in his H.S.C.

examination, for admission to the Ministerial Service Examination held by them and that as he had secured only 30 per cent in the optional subject

in H.S.C. examination he did not possess the minimum general educational qualification and that he was therefore not eligible for appointment as a

Clerk by direct recruitment and his provisional selection as a Clerk was consequently cancelled. This order was impugned in a writ petition filed

under Article 226 .The Division Bench allowed this writ petition and quashed the aforesaid order passed by the Public Service Commission. The

learned Chief Justice stated:We do not think that this order can be allowed to stand. There can be little doubt that at the time when the petitioner

sent in his application he had also sent a certificate of marks obtained by him, which revealed that he has secured 30 per cent in the optional

subject .Notwithstanding this, the competition was permitted to sit for the competitive examination and he was declared to have passed the test

and it was only when he came out successful in the examination that he was appointment as a Clerk to serve in Department of Agriculture. There

after, he was working for a number of months in different places in Andhra Pradesh in that Department . That being the position, it is not open to

the Public Service Commission to cancel his selection and remove him from service.

Same view would be found expressed in the case reported as Arya Kumar V. State of Bihar 1973(1) SLR 741. In the above case, a teacher

was given the job. There was no concealment on his part .Patna High Court came to the conclusion that in such circumstances the

respondentauthorities cannot turn around and record finding that the concerned candidate was not possessing the requisite qualification at time of

entry into service.

The net result is that if there is no misrepresentation on the part of the person seeking appointment and he is given appointment then the State

cannot turn around and pass an order to his detriment by holding that his initial appointment was bad. The position in this case is similar. There was

no misrepresentation on his particle as a matter of fact, the respondent authority fully satisfied themselves with regard to the qualification of the

petitioner. It was after recording satisfaction in this regard order of appointment came to be issued. This ground alone is sufficient to set aside the

order, copy where of is annexure P/3. Learned counsel for the petitioner submits that the person similarly situated have been allowed to continue in

service. Name of such person is Surinder Kumar. In view of what has been Stated above, this aspect of the matter is not being dealt with. This

petition is allowed and order annexure P/3 is set aside.