Allahabad High Court
Amit Kumar vs Union Of India And 2 Others on 5 August, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:126102 Reserved on 22.07.2024 Delivered on 05.08.2024 Court No. - 4 Case :- WRIT - A No. - 18038 of 2016 Petitioner :- Amit Kumar Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Bal Mukund Singh,J.S. Singh Counsel for Respondent :- A.S.G.I.,Mukteshwar Upadhyay,S.C.,Tarun Varma,Vishwa Pratap Singh and Case :- WRIT - A No. - 8283 of 2019 Petitioner :- Tej Narayan Tanti And Another Respondent :- The Union Of India New Delhi And 9 Others Counsel for Petitioner :- Bal Mukund Singh,Anil Bhushan (Sr. Advocate),Shri Prakash Mishra Counsel for Respondent :- A.S.G.I.,Tarun Varma,Vinay Kumar Pathak Hon'ble Ajit Kumar,J.
1. Both these petitions since arise out of the same advertisement and selection on group D posts in the same bank, these are being heard and decided together.
2. For the purpose of reference to the facts, writ petition being Writ - A No.- 18038 of 2016 is taken as a leading petition.
3. Heard Sri Anil Bhushan, learned Senior Advocate assisted by Sri Bal Mukund Singh and Sri Shri Prakash Mishra, learned counsel for the petitioners, Sri J.S. Pandey, learned counsel for the contesting respondent- bank, Sri Mukhteshwar Upadhyay, learned counsel for the Union of India and Sri Vishwa Pratap Singh, learned counsel for the private contesting respondent.
4. The oriental bank of commerce, a nationalized bank at Ghaziabad issued an advertisement for 10 posts of Assistant House Keeper - a group D post, inviting applications from the local candidates of Ghaziabad circle. Besides the eligibility criteria provided under the advertisement, the advertisement also required a candidate to disclose that he had not applied in any other circle of bank.
5. Petitioner applied pursuant to the advertisement by moving an application on 16th February, 2015, with an undertaking that he had not applied for any other region of bank and also made an undertaking that in the event any information given was found to be false then his candidature would be rejected. Petitioner received an admit card on 7th April, 2015 from the bank's regional office, Ghaziabad and pursuant to which he participated in the interaction on the scheduled date. On 30th June, 2015 the result was declared in respect of 6 posts only and petitioners' name did not find place in the list. Since result of remaining 4 posts were not declared which were of the category, petitioner's petition filed a writ petition before this Court which was disposed of on 14th August, 2015 with a direction that in the event petitioner made a representation, the same would be considered and disposed of in accordance with law indicating the reasons whether petitioner had violated any of the conditions for applying under the category advertised.
6. Petitioner made a representation on 22nd January, 2016. The said representation was disposed of by the competent authority of the bank vide order dated 1st March, 2016 holding that petitioner having made false statement to the effect that he had not applied in any other region of the bank, whereas it was found that he had applied in other region of the bank also. It is this order which is under challenge.
7. Two folds submissions have been advanced by learned counsel for the petitioner:
(a). The advertisement having been published in the newspaper without disclosing the name of the bank, the petitioner could not have guessed that he had applied for other region in Ghaziabad in respect of same bank and so his candidature ought not to have been cancelled as information published in the newspaper was vague and misleading and;
(b). The conditions laid in the advertisement was absolutely arbitrary inasmuch as there was neither any intelligible differentia, nor had any rationale as to the object sought to be achieved by filling up the vacancies. It is submitted that these were the group D employee vacancies and no candidate in these days of unemployment can be forced to apply in only one region of the bank.
8. Per contra, it is argued by Sri J.S. Pandey, learned counsel for the bank that petitioner having made a false declaration in the application form and having furnished an undertaking that if the information was found to be false subsequently, his candidature was liable to be rejected, now cannot be permitted to turn around to suggest that the condition was an arbitrary one and was having no rationale, nor having nexus with the object sought to be achieved by making appointments under the advertisement. He submits that petitioner had been issued with an admit card in which name of the bank was very much there and, therefore he could not have taken the plea that he was not aware of the bank. It was also submitted by learned counsel for the respondent bank that purpose for providing limitation for a candidate to apply for group D post in a circle or zone is to encourage local applicants and to offer more and more appointments, instead of candidates applying in various circles of the same bank. It is argued that these are the posts basically made for those class IV employees who did dusting etc. in the office and, therefore, the condition was provided to encourage the local applicants.
9. It is next argued by learned counsel for the respondent bank that petitioner having submitted an application along with undertaking pursuant to the advertisement issued and having participated in the selection, could not subsequently alleged that the advertisement to be arbitrary one in so far as the conditions prescribed was concerned.
10. Sri J.S. Pandey, learned counsel for the respondent bank has relied upon the authority of the Supreme Court in the case of Ashok Kumar and another v. State of Bihar and others, (2017) 4 SCC 357.
11. Having heard learned counsel for the respective parties and having perused the records, it transpires that when advertisement was issued by the bank in question, advertisement as published in the newspaper and has been brought on record, it did not disclose the name of bank for which application was invited. The address upon which the applications were sent was post box No.- 22, Head Post office, Navyug Market, Ghaziabad -201001.
12. It also transpires, therefore, that in the absence of the name of the bank in the advertisement it must have been difficult to disclose whether he had been an applicant in respect of such vacancies of the same bank in some other region. An application without disclosing the name of bank would certainly amount to rendering the demand of undertaking to be highly arbitrary one. Pleadings to this effect has been taken in paragraph 16 of the writ petition. Paragraph 16 of the writ petition is reproduced hereunder:
"16. That in the impugned advertisement, there is no name of any particular nationalized bank. Only advertisement is made on behalf of one un-named nationalized bank for one region. It is not the centralized advertisement for the all the vacant Class IV post created in Oriental Bank of Commerce in whole of India. Further it is not the centralized advertisement on behalf of all P.S.U. Banks of India. Once it is not the centralized process of recruitment on behalf of all the Public Sector Banks (P.S.B.), no unreasonable restriction can be imposed by the respondents. Hence such restriction imposed to apply only in one region is unreasonable, illegal, ultra vires and against the Article 14,16 and 19 of The Constitution of India."
13. In reply to the paragraph 16 of the writ petition, in paragraph 22 of the counter affidavit this fact has not been denied that advertisement did not contain the name of the bank. All that has been stated that restriction for a non-transferable inferior post of Peon-Cum-House Keeper is merely to narrow down the zone of consideration and it is stated to be consistent with the equality of the opportunity. Plea has also been taken that the post being a non-transferable, no fundamental rights of the candidate is violated in the event such restrictions are imposed as the restrictions are claimed to be reasonable one having nexus to the object sought to be achieved. The rationale behind this condition is stated to be achieved by encouraging local people as no educational qualification of a higher standard was required. Vide paragraph 22 of the counter affidavit it has been averred thus:
"22. That the contents of paragraphs 15, 16, 17 and 18 of the writ petition as stated are wrong and denied. The petitioner had applied for Class IV vacancies in other regions in the replying Bank. The applications are annexed as Annexure R-1 Colly. He has the audacity to depose falsely, on oath, before the Hon'ble Court, too. He is blowing hot and cold in the same breath. On one hand he alleges he did not apply for Class IV posts in other regions, whereas in the same breath he admits it. For one post in a region, there are thousands of applications received. Regionwise restriction for a non transferable menial post of peon cum Housekeeper is merely to narrow down the zone of consideration. It is consistent with the rule of equality of opportunity as it is calculated to correct the imbalance and permit equality in the larger sense. The class for the post is educationally handicapped. The post is non transferable. The restriction is geared so that they get employment within their region and their resources are not drained for menial employments. The restriction is to get over the educational handicap and unemployment in the region. The rationale of restriction is removal of regional or class inadequacy or like disadvantage. No fundamental rights are violated of the petitioner, by such restriction nor it devolves any right to him to give false statements in his application for applying for the post. The Bank, in its advertisement does not disclose its name so that no influence can be exercised on it. Having applied in other regions in the same Bank, having received the call letters from the replying Bank from all the regions applied, even before filing the writ petition no. 40840 of 2015, the petitioner cannot feign ignorance of the Bank applied for. The restriction is reasonable, legal and justified. The judgment cited is not attracted in the facts of the present case."
14. Having examined the pleadings of the banks as quoted above, I do not find any plausible explanation coming forth as to why bank failed to disclose its name if it wanted the local candidates to apply for. No candidate is supposed to guess the name of bank in the event its name not given in the advertisement inasmuch as the undertaking sought also did not disclose the region and zone of a particular bank.
15. In the circumstances, if a candidate has not disclosed about his application that has already been made in another zone of the same bank, it cannot be said that there was a deliberate attempt to give a false impression or give a false declaration. It is not averred anywhere in the counter affidavit that it was centralized selection for various banks and, therefore, declaration would have really carried weight.
16. Thus, in my considered view, if a candidate having not known the name of the bank did not disclose that he was a candidate of a particular bank in another zone, that can be taken to be a deliberate concealment of the material fact. In the case of Avtar Singh v. Union of India & others, 2016 (8) SCC 471 vide paragraph 30 (10) & (11) it has been held thus:
"30.(10) For determining suppression or false information attestation/ verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
(11). Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
17. Coming to the point raised by learned counsel for the bank that petitioner having submitted to the advertisement by making an application and giving an undertaking cannot subsequently turn around to suggest that conditions laid in the advertisement was arbitrary.
18. In my considered view, every advertisement has to have clear terms and conditions made therein and advertisement while providing the conditions, it should specifically state as to for which authority it is requiring the condition to be fulfilled. Merely because some undertaking has been invited, a subsequent challenge to that undertaking being made would not amount questioning the advertisement as such. It is not the case of the parties that petitioner was not eligible and that he could not have applied. All that was provided that a candidature of the petitioner was liable to be rejected on the ground of false undertaking given to the bank. So there is virtually no challenge to the advertisement. The challenge is for the restriction part only and that too being vague as the bank's name was not disclosed. As a matter of fact rejection of candidature has been questioned. Now restriction part even if not set aside, it was so vague that declaration made by the petitioner would have vitiated his application itself in the event he had applied for any other bank. In my considered view this must not have been intention as such a condition was definitely to be hit by Article 14 of the Constitution.
19. It is further noticeable that bank has not come up with the case that petitioner has got selected in some other zone before his selection was finalized in the present zone. So, the question of quashing the advertisement for quashing the restriction does not arise except to hold that in the absence of name of the bank in the advertisement, if the petitioner could not give information that he had applied in another zone of the same bank, such statement of fact cannot be said to be misleading one and on this score alone petitioner's candidature was not liable to be cancelled. Thus, the judgment of Supreme Court in the case of Ashok Kumar (supra) relied upon by the learned counsel for the respondent bank is distinguishable by the bank.
20. In view of the above, therefore, the writ petition succeeds and is allowed.
21. The order passed by the competent authority of the bank impugned herein this petition dated 1st March, 2016 filed as Annexure - 8 of the writ petition is hereby quashed.
22. Respondent bank is directed to declare the result of the petitioner and make selection in the order of merit in accordance with law and if other selected candidates do not appear, the petitioner's candidature shall be considered for offering appointment provided he fulfils all other prescribed eligibilities.
23. The above directions shall also apply in respect of the petitioners in the connected matter as far merit list is concerned and consequential selection and appointment.
24. There will be no order as to costs.
Order Date :- 5.8.2024 Atmesh