Navodaya Vidyalaya Samiti vs Afshan Khan and Others

Rajendra Menon, J.—1. Challenging an interlocutory order dated 2nd February, 2016 passed by the Central Administrative Tribunal, Jabalpur in (i) O.A. No. 200/00076/2016, (ii) O.A. No. 200/00079/2016 (iii) O.A. No. 200/00080/2016, (iv) O.A. No. 200/00081/2016, (v) O.A. No. 200/00151/2016, this petition has been filed invoking the Courts extraordinary jurisdiction under Article 227 of the Constitution.

By the interlocutory order passed, learned Tribunal having prima facie found, withdrawal of appointment granted to the respondents, in the manner done to be unsustainable and in violation to the principles of natural justice, has stayed the orders/action impugned, hence, this petition under Article 227 of the Constitution. It is seen from the record that the Deputy Commissioner, Navodaya Vidyalaya Sangthan, Bhopal and Lucknow conducted certain selection process for appointment to various posts of miscellaneous category teachers, after the process of selection was over, the respondents were appointed in the year 2013. Complaints were received with regard to the selection process, matter was enquired into and findings were recorded in the enquiry with regard to certain irregularities and illegalities, therefore, based on the same, matter was handed over for further investigation to the Central Bureau of Investigation and it seems that on advice received from the C.B.I, and on the basis of the enquiry report, the impugned action for withdrawal of appointment was undertaken. Be that as it may, at this stage, we are not required to go into various aspects of the matter on merit exercising our limited jurisdiction in this petition under Article 227 of the Constitution. We are only required to assess as to whether the findings recorded by the Tribunal at this stage granting interim protection to the respondents warrant consideration, whether the impugned order is perverse or illegal to such an extent that on the face of it, it is seen to be unsustainable. For doing so, we have heard learned counsel for the parties at length and we find that after analyzing the entire material that came on record, certain findings have been recorded by the Tribunal which are contained in para 6 and 7 of the impugned order and for the sake of convenience, we reproduce the same.

"6. It is found that the respondents have mentioned in their reply that the selection process contained 200 marks, out of which 140 marks were for written examination. This written examination was conducted by the Punjab University and the marks of examination were not made available to the Regional Office Bhopal, before completion of all the interviews. Thus, whatever irregularities could be done had to be limited for 60 marks for interview. The respondents have not mentioned any irregularities in the marks for written examination. The enquiry committee has mentioned the names of only 15 candidates, out of 658 candidates who were called for interview, in whose cases cuttings/overwriting and use of white fluids etc. was found. However, out of these 15 candidates, only three were finally selected, which means that manipulation if at all was just a blind game, in absence of marks of written examination which were not revealed till completion of all interviews. The respondents have not produced anything to demonstrate any co-relation between the marks in the written examination and marks in the interview of the selected candidates, establishing use of fraud/malpractices in grant of interview marks in case of all the selected candidates. Thus, there might be a large number of candidates who got selected on their own merit and not because of any alleged manipulation. If contention of the respondents, on changing of entire mark-sheets by the retired Deputy Commissioner Mohd. Kalim is accepted then it is difficult to understand as to why he did not change the pages containing cutting/overwriting and use of white fluid etc., as this would have made the detection of malpractices very difficult at the first place and thus made life easier for the perpetrators of malpractices. The enquiry report puts entire blame of this episode on Retired Deputy Director Mr. Mohd. Kalim, but have not mentioned anything in regard to any disciplinary action having been taken against him so far.

The respondents in the impugned orders dated 14.01.2016 have mentioned that they are withdrawing the offer of appointment which were issued in 2013. Since after their appointments the applicants had worked for over two years, the order for withdrawing of appointments now carries no meaning. At this stage, the respondents could have terminated their services as per relevant service rules but withdrawal of offers of appointment, after the appointees having joined and worked on the post for over two years, is prima facie strange and unimplementable."

(emphasis supplied)

The aforesaid findings clearly indicates that the entire selection process was conducted in two phases. A written examination was conducted by the Authorities of Punjab University carrying 140 marks and an interview by the Regional Office at Bhopal carrying 60 marks. It is the finding recorded by the Tribunal that according to the petitioners" own saying, there is no illegality in the written examination conducted, the illegality only pertains to the interview conducted for which 60 marks were reserved. That a-part, the enquiry report submitted by the petitioners themselves before the Tribunal indicates that the Enquiry Committee found irregularity only with regard to 15 candidates out of the total No. of 658 candidates who were called for interview. The enquiry report further indicates that only 3 candidates out of these 15 were selected, it is after evaluating this aspect of the matter that the Tribunal found that at this stage, interim protection should be granted. This according to us, is a reasonable finding based on due appreciation of the material available on record, cannot be termed as erroneous, perverse or illegal to such an extent that interference at this interlocutory stage in a petition under Article 227 of the Constitution is called for. Nothing is shown to us or demonstrated before us to say that this finding of fact recorded by the Tribunal for arriving at a prima facie conclusion is erroneous. That being so, it is not a fit case where exercise our extraordinary jurisdiction in a petition under Article 227 of the Constitution. At this stage, this Court is not required to go into all the aspect of the matter on merit as al these questions are sub-judice before the Administrative Tribunal. The Tribunal, having considered various aspect of the matter including the question of breach of natural justice while granting interim protection to the large number of respondents, has not committed any error, so grave in nature, that the same warrants re-consideration at this stage.

During the course of hearing Shri Rao, learned Senior counsel indicated that Hon''ble Supreme Court in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. & Others, reported in , AIR 1985 Supreme Court 330 has laid down a principle that no interlocutory orders should be passed which is in the nature of final relief and, therefore, it is stated that at this stage, the grant of interim relief which amounts to a final relief could not be granted. We are not convinced with the aforesaid submissions made by Shri Rao. In each and every case, the legal and factual implications have to be seen and a conscious decision has to be taken in the interest of justice for granting protection at the interlocutory stage. In this case, if out of 658 candidates who appeared in the interview process, irregularities is found in the case of only three selected candidates, that being so, we find that the decision taken by the Tribunal to be reasonable, in accordance with law and, therefore, the submissions made by Shri Rao based on the judgment rendered in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. & Others, reported in , AIR 1985 Supreme Court 330, we see no reason to interfere.

That a-part during the course of hearing, Shri Rao tried to indicate various other aspects of the matter on the merit. At this stage, we are not required to go into all these aspect of the matter when the dispute between the parties is sub-judice before the Tribunal. It is for the petitioners to raise all the grounds before the Tribunal. At this stage, we are only concerned with the tenability of the interlocutory order passed by the Tribunal and once we have come to a conclusion that the order passed by the Tribunal is reasonable and in accordance with law for the reasons indicated herein above, we see no reason to exercise our extraordinary jurisdiction at this interlocutory stage and interfere into the matter. Accordingly, finding no merit in the matter, we dismiss the petition in limine with liberty to the parties to canvass the matter by raising all the grounds as may be available to them before the Tribunal and the Tribunal is free to proceed in the matter in accordance with law without being influenced by the observation made in this order.

All interim orders granted earlier in this petition stands vacated and rejected.

Petition stands dismissed, no order as to costs.

C.C as per rules.