Lucky Thakur vs State Of Punjab & Ors.

Sandeep Moudgil, J

The jurisdiction of this Court has been invoked under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari quashing the order dated 18.01.2017, endorsed on 02.02.2017 (Annexure P-11) whereby the petitioner's appointment pursuant to the appointment order dated 30.12.2016 (Annexure P-9) was cancelled and his services were terminated. A further prayer has been made for issuance of a writ of mandamus directing the respondents to permit the petitioner to continue to perform his duties as Panchayat Secretary.

The petitioner possessed a B.Sc. degree in Information Technology from Karnataka State Open University, Mysore, obtained in the year 2012, and also held a one-year Diploma in Computer Programming and Applications. Copies of the certificates relied upon by the petitioner were placed on record as Annexures P-1 and P-2, respectively.

The Subordinate Services Selection Board, Punjab issued Advertisement No. 02 of 2016 dated 04.08.2016 (Annexure P-3) inviting applications for recruitment to 800 posts of Panchayat Secretaries in the Department of Rural Development and Panchayats. The advertisement prescribed the requisite educational qualifications and provided for selection on the basis of written examination, educational qualifications and qualifying typing tests.

Subsequently, the number of posts was revised from 800 to 668 by Public Notice dated 06.09.2016 (Annexure P-4) issued by the respondent-Board.

Pursuant to the aforesaid advertisement, the petitioner submitted his application in the General category, which is on record as Annexure P-5. He appeared in the written examination and secured 57.73 marks and was declared eligible; the relevant result is placed on record as Annexure P-6.

The petitioner thereafter qualified the computer typing test and participated in counselling. His name was included at Serial No. 179 in the final merit list uploaded by the respondent-Board on 10.12.2016, a copy of the relevant typing-test result and final merit list being placed on record as Annexures P-7 and P-8, respectively.

On the recommendation of the respondent-Board, the petitioner was appointed as Panchayat Secretary vide appointment order dated 30.12.2016 (Annexure P-9). After completing the requisite formalities, he joined duty in the office of the Block Development and Panchayat Officer, Batala, District Gurdaspur, on 04.01.2017, as evidenced by the joining report (Annexure P-10).

Thereafter, the petitioner continued to perform his duties. However, his appointment was cancelled and his services were terminated vide order dated 18.01.2017, endorsed on 02.02.2017 (Annexure P-11). The reason stated for the action was that the Subordinate Services Selection Board, vide its communication dated 16.01.2017, had informed the department that the petitioner's qualification had not been found correct and that the Board had withdrawn its recommendation.

The petitioner received the impugned order on 09.02.2017. He thereafter approached the concerned officials on 13.02.2017 to ascertain the precise defect in his qualification and was informed that his certificates had been sent for verification. According to the petitioner, despite his request and explanation, no relief was granted.

The petitioner consequently approached this Court by filing the present writ petition on 16.02.2017, challenging the order dated 18.01.2017, endorsed on 02.02.2017.

Learned counsel for the petitioner contends that the impugned order dated 18.01.2017, endorsed on 02.02.2017, is unsustainable in law as the petitioner's services were terminated without issuance of notice or affording him an opportunity of hearing.

It is submitted that the petitioner had participated in the prescribed selection process, had been declared eligible, had qualified the typing test, had been placed in the final merit list and had thereafter been appointed and permitted to join. According to learned counsel, the petitioner had disclosed his qualifications and documents to the authorities and there was neither fraud nor misrepresentation on his part.

Learned counsel further submits that the action of the respondents is contrary to Condition No. 5 of the appointment order, which required one month's notice or salary in lieu thereof in case of termination. It is argued that the respondents could not dispense with the contractual condition while terminating the petitioner's services.

It is also contended that the impugned action has civil consequences and could not have been taken without adherence to the principles of natural justice. Reliance has been placed upon the judgments referred to in the writ petition, including “State of Orissa v. Dr. (Miss) Binapani Dei,”; “S.N. Mukherjee v. Union of India” and “Rajesh Kumar Tripathi v. State of U.P.”

Learned counsel further argues that the action of the respondents is arbitrary and violative of Article 14 of the Constitution of India. Reliance is placed upon the principles laid down in “E.P. Royappa v. State of Tamil Nadu,”; “Maneka Gandhi v. Union of India” and “R.D. Shetty v. International Airport Authority of India”.

It is lastly contended that where the petitioner had furnished his documents before the competent authorities and had been selected and appointed after scrutiny, he ought not to be made to suffer for any alleged error on the part of the Selection Committee or the authorities. In support, reliance is placed upon “Dr. M.S. Mudhol and another v. S.D. Halegkar and others”.

Learned State counsel submits that the petitioner was found ineligible as his B.Sc. degree from Karnataka State Open University was obtained through an examination centre situated in Punjab, beyond the territorial jurisdiction of the University. It is contended that, in view of the UGC/Distance Education Council guidelines, such qualification could not be treated as valid for the recruitment. Consequently, the Board withdrew its earlier recommendation vide Memo dated 16.01.2017 (Annexure R-1), and the consequential cancellation of the petitioner's appointment was justified.

It is further submitted that the appointment of the petitioner was cancelled vide order dated 18.01.2017, endorsed on 02.02.2017 (Annexure P-11), on the basis of the subsequent withdrawal of the Board's recommendation, the Board having found the petitioner's requisite qualification to be invalid. It is contended that the petitioner could not claim a right to continue in service once the recruiting agency had withdrawn its recommendation on account of his failure to fulfil the prescribed educational qualification.

Learned counsel submits that respondent No. 5 had no role in cancellation of the petitioner's appointment, the impugned order having been passed by respondent No. 3 on the basis of the Board's recommendation. It is further contended that the advertisement prescribed non-fulfilment of educational qualifications as a ground of ineligibility and that the petitioner's appointment was in any event on probation for three years, during which his services could be terminated without notice. The petition, therefore, deserves dismissal qua respondent No. 5.

Having considered the pleadings of the parties and the material placed on record, the controversy, insofar as the present writ petition is concerned, primarily arises from the action of the respondents in cancelling the petitioner's appointment after his selection, issuance of appointment order dated 30.12.2016 and joining on 04.01.2017. It is not disputed that the petitioner had participated in the selection process, cleared the written examination and typing tests and was thereafter recommended for appointment. The respondents themselves admit that the subsequent action was founded upon the withdrawal of the recommendation by respondent No. 2.

The principal justification furnished by respondent No. 2 is that the petitioner's Bachelor's degree from Karnataka State Open University could not be treated as a valid qualification because the examination centre was situated at Dinanagar, District Gurdaspur, outside the territorial jurisdiction of the University. The Board relies upon the UGC and Distance Education Council communications in support of its stand. However, the material placed on record shows that the Board had itself scrutinised the petitioner's documents during the recruitment process, permitted him to participate in the selection, declared him successful and recommended his name for appointment. The respondents have not placed before the Court any material showing that, before cancelling the appointment, the petitioner was furnished the alleged adverse material or was called upon to explain the circumstances in which he had obtained the degree.

Significantly, the Board itself describes the earlier recommendation as an error which came to its notice subsequently and states that the same was withdrawn vide Memo dated 16.01.2017. Thus, the foundation of the impugned order was not any finding of fraud, misrepresentation or suppression of material facts on the part of the petitioner, but a subsequent conclusion arrived at by the authorities regarding the validity of his qualification. Such a conclusion, having the direct consequence of depriving the petitioner of an appointment already granted to him and pursuant to which he had joined service, could not, in the facts of the present case, have been arrived at behind his back.

The plea of the respondents that the petitioner was on probation for three years also does not, in the facts of the case, answer the fundamental objection raised by the petitioner. The impugned action was not founded upon an assessment of his work or conduct during probation; rather, his appointment was annulled on the ground that the qualification on which his eligibility had been assessed was subsequently found unacceptable. The question, therefore, was not merely one of termination simpliciter of a probationer but of withdrawal of an appointment on the basis of a disputed factual and legal premise. The respondents themselves state that the precise reasons for the withdrawal of the recommendation emerged between respondent Nos. 2 and 3.

There is yet another material circumstance which weighs in favour of the petitioner. The petitioner specifically pleaded that Condition No. 5 of the appointment order required one month's notice or salary in lieu thereof in case of termination. The impugned order was passed without notice, without affording an opportunity to the petitioner to explain his qualification and without complying with the aforesaid condition. The petitioner's specific case in this regard is supported by the pleadings on record, and the respondents have not demonstrated that any such opportunity was afforded to him before the adverse decision was taken.

The principle of natural justice assumes particular significance in the present case because the respondents' own stand is that the petitioner's qualification was initially accepted and his candidature was acted upon by the recruiting agency, whereas the subsequent decision was based upon material and communications which came to light later. Before an adverse conclusion having such serious civil consequences was recorded, fairness required that the petitioner be informed of the objection and given a reasonable opportunity to place his explanation and supporting material before the competent authority. The petitioner, in fact, approached the authorities immediately after receiving the termination order and was informed that his certificates had been sent for verification.

This Court is not required, in the present proceedings, to finally adjudicate upon the academic recognition of the degree merely on the basis of the competing assertions of the parties. The respondents may have been justified in examining the validity of the qualification when the issue came to their notice; however, the manner in which the consequential action was taken cannot be sustained. The issue concerning the petitioner's eligibility involved examination of the University's territorial jurisdiction, the circumstances in which the examination centre was established and the applicability of the UGC/Distance Education Council communications. Those matters could not fairly be treated as conclusively determined against the petitioner without giving him an opportunity to meet the case.

The contention that an erroneous recommendation cannot confer an indefeasible right upon the petitioner is, in the abstract, not in dispute. Nevertheless, the power to correct an administrative error is required to be exercised fairly and in accordance with law. Correction of an alleged error cannot dispense with procedural fairness where the correction visits an individual with adverse civil consequences, particularly after the authorities themselves had completed the selection process, issued the appointment order and permitted the petitioner to join. The respondents' own pleadings establish that the petitioner was selected and appointed before the alleged discrepancy was subsequently noticed.

Consequently, this Court is of the considered view that the impugned order dated 18.01.2017, endorsed on 02.02.2017 (Annexure P-11), cancelling the appointment order dated 30.12.2016 (Annexure P-9) and terminating the petitioner's services, cannot be sustained in its present form. The same having been passed without affording the petitioner an effective opportunity of hearing and without demonstrating compliance with the condition contained in the appointment order, the action of the respondents is violative of the principles of natural justice and cannot be allowed to stand.

In the light of above, the impugned order dated 18.01.2017, endorsed on 02.02.2017 (Annexure P-11), whereby the petitioner's appointment made vide order dated 30.12.2016 (Annexure P-9) was cancelled and his services were terminated, is quashed.

The respondents shall restore the petitioner to the position which he occupied pursuant to the appointment order dated 30.12.2016 and permit him to discharge his duties as Panchayat Secretary, with all consequential benefits in accordance with law. It is, however, clarified that this order shall not preclude the competent authority from examining the validity of the petitioner's educational qualification afresh, but any such action shall be taken only in accordance with law and after furnishing the petitioner the material relied upon against him and affording him a reasonable opportunity of hearing.

The writ petition stands allowed in the above terms.

Pending application(s), if any shall be disposed off.