Mohammad Qamar Khan vs Union Of India & Ors.

PRAMOD KUMAR DAS, MEMBER (A):

The applicant has filed this OA challenging the order dated 17.02.2025 [A/4] in which his selection and appointment to the post of CSSD Technician in AIIMS, Bhubaneswar, in Pay Level 6 of 7th CPC, was cancelled with prayer to quash the said order and direct the respondents to allow him to discharge the duties as CSSD Technician in AIIMS, Bhubaneswar from the date of cancellation with grant of all consequential service and financial benefits retrospectively INTER ALIA stating that, due to need of hands, the AIIMS, BBSR invited applications for the post of CSSD Technician vide notification dated 01.07.2023. He having applied and appeared at the selection conducted by the AIIMS, BBSR, and, thereafter, after verification of the documents got selected and appointed to the post in question vide order dated 30.10.2024 [A/2] and, pursuant to which order, he joined the post on 10.12.2024 [A/3]. After his joining, his name got registered in the biometric system of the AIIMS and he was issued the Id. Card. It is stated that without giving him any opportunity in compliance of principles of natural justice or without following due procedure of rule and law prescribing the manner of cancellation/termination of selection/appointment, all on a sudden, he was served with a letter dated 17.02.2025 cancelling his offer of appointment and candidature for the said post of CSSD Technician by stating the reason that (i) the experience certificate submitted by the applicant did not indicate the Bed capacity of the hospital although, as per the Notification, it is essential to have three years of work experience in hospital with a minimum of 200 beds; (ii) The documents produced by him reveal and overlap in the time period between his relieving date from King Abdullah Medical City, Saudi Arabia and his joining date with another raising potential concern regarding the accuracy of his employment history; and (iii) his previous employment was terminated by the competent authority of the AIIMS, Bhopal due to submission of misleading and fabricated documents that were used to secure employment, indicating a serious lapse in his professional integrity. Therefore, according to the applicant, gross miscarriage of justice was caused in the decision making process of the matter requiring judicial interference and intervention to safeguard his fundamental right to life enshrined under Article 21 so also the provisions enshrined in Articles 14 and 16 of the Constitution of India.

The Respondents did not dispute the very fact that the applicant was selected through a positive act of open selection conducted by the AIIMS, BBSR to the post of CSSD Technician and was issued the offer of appointment after verification of documents, pursuant to which he submitted joining report on 10.12.2024. It is stated that the applicant applied for the post, was issued an admit card, and qualified for appointment to the post of CSSD Technician in pay Levlel-6 [7th CPC], upon verification, it was found that he had submitted an experience certificate stating employment at King Abdullah Medical City Hospital, Saudi Arabia from 04.07.2015 to 01.10.2019 and subsequently at AIIMS Bhopal from 24.09.2019 to 05.10.2021. However, the relieving date from King Abdullah Medical City was after his joining date at AIIMS Bhopal. Passport records show he arrived in New Delhi on 24.09.2019, indicating overlapping employment in two different countries, which is highly improbable. Further, the experience certificate from King Abdullah Medical City did not specify the bed strength of the hospital, which is an essential criteria. Despite best efforts, verification of the hospital's bed efforts, verification of the hospital's bed capacity was not feasible. The applicant failed to satisfy the mandatory experience criteria of 4 years' CSSD experience in a 200 bed hospital as per the advertisement. Since his joining was never accepted, he was rightly not issued with show cause notice. He was never inducted in to the service. He was issued offer of appointment provisionally. He did not meet the essential experience criteria of having worked in a 200-bed hospital. There was a 9-days overlap between his relieving from King Abdullah Medical City Hospital, Saudi and the commencement of his service at AIIMS, Bhopal, which could not be verified during document verification stage. The applicant suppressed material information regarding his termination from the AIIMS, Bhopal on the ground of securing employment using fake and fabricated documents, raising finger about his credential. His representation dated 21.02.2025 was duly examined and disposed of on 22.07.2025. Accordingly, it is stated that the allegation of the applicant that miscarriage of justice was caused to him in the decision making process thereby requiring judicial interference in the matter is uncalled for and, this OA, being devoid of any merit is liable to be dismissed.

Heard. Perused the records.

Ld. Counsel for the applicant has submitted that after being successful in a positive act of selection and upon verification of his documents, he was issued with the offer of appointment dated 30.01.2024, pursuant to which he submitted joining report on 10.12.2024, after which, his name was entered into the biometric system of the AIIMS and was also issued Id. Card. While performing his duties, starting from his date of joining on 10.12.2024, suddenly and abruptly, he received letter dated 17.02.2025 [i.e. after two months], cancelling his candidature and offer of appointment on the grounds mentioned in the said letter without complying with the principles of natural justice and application of mind since it is a cardinal principle of law that candidature of a candidate can be rejected before one is selected and joined and once a candidate joins pursuant to offer of appointment, his/her candidature and offer gets extinguished and, candidate concerned can be dealt with under Service Rules of the Department and complying with the mandate enshrined n Article 311 of the Constitution of India. In this regard, Ld. Counsel for the applicant placed reliance on the decision of the Hon'ble Apex Court in the case of Jagdish Mitter Vs UOI, MANU/SC/0277/1963. Since, impugned orders passed without following due process and procedure of rules and law, the same are not sustainable in the eyes of law

Ld. Counsel for the applicant has placed reliance on the decision of the Hon'ble Apex Court in the case of Board of High School and Intermediate Education, U.P Vs. Kumari Chittra Srivastava, (1970) 1 SCC 121, to state that a duty to issue a show cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalized has no defence but on the nature of the order proposed to be passed. According to him, if cancellation of candidature, that too attaching stigma and/or making aspiration, has a serious consequence and, therefore, the same could not have been done without following due procedure of Rules and Law by way of causing enquiry and giving opportunity of hearing to the person concerned. Therefore, the authority concerned in compliance with the principles of natural justice/law, ought to have issued a notice prior to such adverse decision irrespective of the fact that as to whether or not the applicant had a defence for him to say and is not a matter of speculation by the authorities. Since, the impugned orders are in violation of principles of natural justice, are liable to be quashed and to bolster his submissions, he has also relied on the decisions in the cases of (i) Shridhar Vs. Nagar Palika, Jaunpur, AIR 1990 SC 307. (ii) Shrawan Kumar Jha Vs State of Bihar, AIR 1991 (Suppl) (1) SCC 330. (iii) Basudeo Tiwary Vs Sido Kanhu University and others, AIR 1998 Supreme Court 3261. (iv) Pancham Ram and others Vs. Chief Engineer, U.P.Jal Nigam and others, (1999) 1 UPLBEC 537, and (v) Sanjeev Kumar and others Vs State of U.P. and others, (1999) 1 UPLBEC 575.

Further, it is stated that concept of legitimate expectation in administrative law has now gained sufficient importance. "Legitimate Expectation" is the latest recruit to the long list of concepts fashioned by the Hon'ble Courts for the review of administrative actions, and this creation takes its place beside such principles as the rules of natural justice, unreasonableness, the judicious duty of the authorities. It was, in fact, for the purpose of restricting the right to be heard that 'legitimate expectation' was introduced into the law. No order can be passed without hearing a person if it entails civil consequences. Where even though a person has no enforceable right yet he is affected or likely to be affected by the order passed by a public authority, the doctrine of legitimate expectation come into play and the person may have a legitimate expectation of being treated in a certain way by an administrative authority. It is stated that it is not the case of the respondents that the applicant has played any fraud in the matter of selection. Hence, on scrutiny of the impugned orders on the above touchstone, it cannot be said that the orders are capable to stand.

Next limb of submission of the applicant's counsel is that the judiciary in India has emerged as a pivotal force in ensuring that the state remains responsible and accountable for the promises it makes. The application of the doctrine of promissory estoppel, the courts have played a crucial role in upholding the principle of fairness and justice in dealings involving the government. The doctrine acts as a shield for individuals, preventing the government from going back from its assurances and emphasizing the importance of trust and reliability in legal relationships. It ensures that the government is held to its word, particularly when individuals have acted in reliance on those promises. It is stated that the applicant is now overaged to get any Govt. employment for sustenance of life. After the applicant being selected through rigorous of selection and joined, cancellation of his candidature without giving him any opportunity is bad in law and thus is liable to be quashed.

Insofar as overlapping of 9 days is concerned, it was submitted by the Ld. Counsel for the applicant that the applicant while working at King Abdullah Medical City (KAMC) in Makkah, he was selected at AIIMS, Bhopal. The AIIMS, Bhopal intimated him to report early. Hence, he requested the KAMS authority to relieve him early by granting him 9 days leave at his credit. Accordingly, on being relieved, he joined at AIIMS, Bhopal on 24.09.2019. Although, the applicant did not work at KAMS from 24.09.2019 to 02.10.2019, the experience certificate was granted by the said authority taking into consideration the 9 days leave, which was applied and sanctioned to enable him to join at AIIMS, Bhopal. Therefore, there was no overlapping of the working period of 9 days. He also produced the copy of the document to substantiate that the KAMS was/is having total capacity of 500 beds. Had the respondents made proper inquiry from the KAMS, the truth to the above aspect would have been unveiled. But, the respondents in a closed mind, to do away with the appointment, unilaterally terminated the service of the applicant, which is bad in law.

On the other hand, by reiterating the stand taken in the reply, discussed above, Ld. Counsel for the respondents vociferously opposed the stand of the applicant and submitted that since the applicant does not fulfill the required conditions, cancellation of his candidature and appointment cannot be faulted with and the OA being devoid of merit is liable to be dismissed.

From the chain of events narrated above, it is established that after scrutinizing the application submitted by the applicant pursuant to the notification dated 01.07.2023, for the post of CSSD Technician, he was subjected to rigorous of the selection process along with others; and, upon verification of the documents, he was issued with the offer of appointment dated 30.10.2024. He submitted joining report on 10.12.2023 along with all other documents. According to applicant, after submission of the joining report, he was issued Id. Card and his name also was inducted in the biometric system but, according to the respondents, his joining report was not accepted and, therefore, his candidature after verification of the document due to discrepancies, his candidature so also offer of appointment were cancelled vide order dated 17.02.2025. The applicant did not produce any such documentary evidence to show that his joining report was duly accepted by the authorities; allowed to work; or was paid salary for the interregnum period between submission of joining report and termination. However, facts remain that the applicant produced evidence to substantiate that the place/hospital from where he got the experience certificate was having 500 beds, which document has not been questioned by the respondents by producing any contrary evidence. Hence, the said hospital was having 500 beds is accepted being unquestioned. Similarly, the applicant explained the overlapping of 9 days of experience shown in the experience certificate but the respondents did not questioned the same either in the order rejecting his representation nor even in the counter. They have also not produced any such document from the concerned hospital to establish that the stand taken by the applicant is in any manner not correct. In the said premises, we do not see any justification to sustain the said ground taken in the impugned order. Insofar as termination of the applicant from AIIMS, Bhopal is concerned, we find that the applicant has produced the copy of the order dated 05.10.2021 issued by the AIIMS, Bhubaneswar terminating his selection and appointment under rule 5 of CCS Temporary Service Rules, 1965 for production of fake experience certificate, which he had obtained from Indian Institute of Ophthalmology, New Delhi. Nowhere in the said order there is any mention that the said termination will bar him from employment in any Govt. organization of even in AIIMS. It is not the case of the respondents that the applicant applied for the post for which he has been selected on the strength of the said experience certificate. It is also not the case of the respondents that termination from any AIIMS would be a bar for consideration was mentioned as a condition in the Advertisement. In the said premises, we do not have any hesitation to hold that such termination from AIIMS, Bhopal can have any effect on the selection of the applicant in the AIIMS, Bhubaneswar, and, such condition ought not to have been taken as a ground to breach the fundamental right to earn livelihood after being successful in the positive act of selection. It is an admitted fact that the respondents issued the impugned order dated 17.02.2025 without giving any opportunity to the applicant to have his say although it is trite law that even an administrative order, which involves civil consequences, must be made consistently with the rules of natural justice after informing the affected party, the evidence in support thereof and after giving an opportunity of being heard and meeting or explaining the evidence.

According to the applicant, once the applicant submitted his joining report, in pursuance of the offer of appointment, the respondents do not loath any such power or authority to cancel his candidature or offer of appointment because cancellation of candidature would have been made before he is called upon to appear at the test or in worse before the offer of appointment. Once, the applicant submitted his joining report, cancellation of his selection must be in accordance with the service rules governing the field. It is also noted that the applicant in his representation specifically clarified the overlapping mentioned in the impugned order but the authority concerned rejected the representation without making any whisper on the same. Thus, there was a violation of principle of natural justice to the above effect, which is highly palpable. Ld. Counsel for the applicant has placed reliance on the decision of the Hon'ble Apex court in the case of Jagdish Mitter (supra) to state that in the said case the applicant was appointed as Temporary Second Division Clerk in the General Post Office, Lahore, for a period of six months. At the end of the initial period of six months, his appointment was continued from time to time until he was posted in the office of Postmaster-General at Ambala. While he was working in that post, the impugned order was passed by which his services were terminated, which he had challenged on the ground that his termination without inquiry and giving him opportunity was not sustainable and the Hon'ble Apex Court allowed the relief to him. He placed reliance on paragraph 21 of the decision, which is reproduced below:

We also find that subjecting a candidate with the rigorous of positive act of selection after scrutinizing the declaration made by him/her in the application form supported with documents and declaring him/her successful in the selection, denying the candidate appointment, on the ground that the candidate did not fulfill the conditions stipulated in the rules that too after sending him pre-requisite training and its successful completion whether such candidate got a right for appointment, finally received due consideration of the Hon'ble Apex Court in the case of Union of India Vs Uzair Imran & Ors, 2023 INSC 901, in which Their Lordships directed for giving appointment holding that it is entirely the prerogative of the employer, after applications are received from interested candidates or names of registered candidates are sponsored by the Employment Exchanges for public employment, to decide whether any such candidate intending to participate in the selection process is eligible in terms of the statutorily prescribed rules for appointment and also as to whether he ought to be allowed to enter the zone of consideration, i.e., to participate in the selection process. It is only when evidence of a sterling quality is produced before the court which, without much argument or deep scrutiny, tilts the balance in favour of one party that the court could decide either way based on acceptance of such evidence. it was not within the province of the department to scrutinize the certificate of the candidate with an approach of “one eye open, one eyed closed” and declare that his intermediate education was in a “vocational stream”, overlooking or ignoring that the self-same certificate bore the remark ‘Regular’. The determination of the department, undoubtedly hinged on its scarce knowledge of the nature of the candidate’s education, evincing that his exclusion was not on the basis of a valid and proper reason and was, decidedly, arbitrary. However, if the candidature is not rejected at the threshold and the candidate is allowed to participate in the selection process and ultimately his name figures in the merit list - though such candidate has no indefeasible right to claim appointment - he does have a limited right of being accorded fair and non- discriminatory treatment. Given the stages of the process that the candidate has successfully crossed, he may not have a vested right of appointment but a reasonable expectation of being appointed having regard to his position in the merit list could arise. The employer, if it is a State within the meaning of Article 12 of the Constitution, would have no authority to act in an arbitrary manner and throw the candidate out from the range of appointment, as distinguished from the zone of consideration, without rhyme or reason. The employer-State being bound by Article 14 of the Constitution, the law places an obligation, nay duty, on such an employer to provide some justification by way of reason. If plausible justification is provided, the courts would be loath to question the justification but the justification must be such that it is rational and justifiable, and not whimsical or capricious, warranting non-interference. The relevant portion of the decision of the Hon'ble Apex Court in the above case is quoted below:

In view of the discussions made above, we are of the considered view that judicial interference by this Bench on the cancellation of candidature and offer of appointment of the applicant, is irresistible. Accordingly, the orders impugned in this OA are hereby quashed and the respondents are directed to allow the applicant to join in the post, in question, in AIIMS, Bhubaneswar, within a period of 30 days from the date of receipt of a copy of this order. Insofar as his prayer to treat that he is deemed to be continuing in the post from the date of submission of his joining report thereby entitling him all consequential benefits is not acceded to in the peculiar facts and circumstances of the case narrated above.

In the result, the OA stands disposed of along with pending MA, if any, accordingly by leaving the parties to bear their own costs.