Calcutta High Court (Appellete Side)
The State Of West Bengal And Others vs Chaitali Das on 7 August, 2015
Author: Nishita Mhatre
Bench: Nishita Mhatre
Form no. J(2)
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Asha Arora
F.M.A No. 1464 of 2015
The State of West Bengal and others
...Appellants
Versus
Chaitali Das
...Respondent
For the appellants/State: Mr. Joytosh Majumder
Mrs. Debjani Roy.
For the respondent: Mr. D.N. Roy
Mr. Shyamal Kumar Ghosh
Mr. Rajesh Kumar Shah.
Heard on: 27/7/2015.
Judgment on: 07th August 2015.
Asha Arora, J.:
1. The writ petitioner/respondent had applied for the post of Anganwadi Worker pursuant to an advertisement dated 5th July, 2006 which was published as per Memorandum dated 25th January, 2006. The aforesaid advertisement stipulated as follows:
"The candidate for the post of Anganwadi Worker should have a Madhyamik or equivalent pass certificate. SC, ST candidate can apply only if they have passed class VIII. Graduate and above cannot apply for the post. If the results of the graduation examination are not declared on the date of the publication of the notice, then the applicant can apply." The writ petitioner was duly selected and appointed as an Anganwadi Worker whereafter it was detected that she had completed her graduation before applying for the post and in suppression of the said fact, she had given a false declaration regarding her educational qualification. Her appointment was accordingly terminated by a letter dated 2/12/2009 the relevant portion of which reads thus:
"As reported by the concerned authority, she completed graduation before applying for the post of Anganwadi Worker and so, as per terms and conditions of the appointment, her service is hereby terminated from the post of Anganwadi Worker."
2. The aforesaid order of termination was challenged by the writ petitioner before the learned Single Judge in W.P. No. 19895 (W) of 2012.
3. After hearing the learned Counsels for the parties the learned Single Judge of this Court observed as follows:
"I find that the issue of suppression of over qualification for consideration of candidature for engagement to the post of Anganwadi Worker has already been decided by a Special Bench of this Court in the case of Rina Dutta and others versus Anjali Mahato and others reported in 2010 (2) CLJ (CAL) 321 and the relevant portions of the above decision are quoted below:
"21. When a particular qualification is laid down in an advertisement relating to a distinct class of candidates, the candidates possessing a qualification higher than that advertised can ordinarily not be debarred or disqualified, but it is open to the employer to make a rule providing for disqualification of candidates possessing qualification higher than the prescribed qualification, but the burden would be on the employer to justify such a rule."
4. By the order dated 12/9/2012 the learned Single Judge held that "in view of the above settled principles of law the impugned order of termination cannot be sustained in law and the same is quashed and set aside."
5. Aggrieved, the appellants assailed the said order in the present appeal.
6. Mr. Majumder, the learned Counsel for the appellants invited our attention to the Memorandum dated 25th January, 2006 for selection of Anganwadi Workers and Anganwadi Helpers which clearly provides that "Candidates who are graduates will not be eligible for the post of Anganwadi Worker. If a graduate candidate suppresses her academic qualification and if selected to a post of Anganwadi Worker her service will be terminated forthwith without assigning any reason." Mr. Majumder further pointed out that the advertisement dated 5th July, 2006 in response to which the writ petitioner Chaitali Das had applied also categorically mentioned that "graduates and above cannot apply for the post. If the results of the graduation examination are not declared on the date of the publication of the notice then the applicant can apply." Our attention has been drawn to the declaration dated 8/8/2007 of Chaitali Das the relevant portion of which reads thus:
"I, Chaitali Das hereby declare that I have not obtained any graduation degree from any recognised university and I am a permanent resident of Pandua Gram Panchayat under the Pandua Block area. If any of the above facts turn out to be false I shall be bound to consider my appointment to be immediately cancelled. I am joining as temporary Anganwadi Worker today 8/8/2007 accepting all above conditions."
7. It has been argued on behalf of the appellants that the writ petitioner/respondent secured the appointment by giving a false declaration regarding her academic qualification and she suppressed the fact that she had obtained graduation degree before applying for the post of Anganwadi Worker. Placing reliance on the judgment of the Special Bench of this Court in Rina Dutta and others versus Anjali Mahato and others reported in 2010 (2) CLJ (CAL) 321 the learned Counsel for the appellants submitted that the advertisement dated 5/7/2006 specifically bars graduates and above from applying for the post of Anganwadi Worker. Despite such prohibition the writ petitioner had applied for the post. Therefore the order of termination is justified. In support of his contention the learned Counsel for the appellants also referred to an unreported judgment dated 1/9/2014 of the Division Bench of this Court in M.A.T 932 of 2014 in the case of Shampa Dey versus State of West Bengal and others.
8. It is not in dispute that as per the advertisement dated 5/7/2006 a candidate for the post of Anganwadi Worker was required to have "a Madhyamik or equivalent pass certificate. SC, ST could apply only if they had passed Class VIII." It is also evident from the advertisement that graduates and above were specifically barred from applying for the post. Admittedly the writ petitioner had obtained her graduation degree before applying for the post of Anganwadi Worker. It is also an undisputed fact that she gave a false declaration in suppression of her graduation degree while joining as temporary Anganwadi Worker on 8/8/2007.
9. Palpably, as per the conditions of appointment the writ petitioner was bound to accept her termination since she had given false declaration by suppressing her qualification. In this context it is pertinent to refer to the judgment in Monoj Kumar versus Government of NCT of Delhi and others reported in (2010) 11 Supreme Court Cases 702 wherein the Apex Court observed that if any candidate furnishes false or incomplete information or withholds or conceals any material information in his application, he will be debarred from securing employment. It was further observed that even if such an applicant is already appointed, his services are liable to be terminated for furnishing false information.
10. Despite the specific stipulation in the aforesaid advertisement prohibiting graduates from applying for the post of Anganwadi Worker, the writ petitioner applied for the said post by suppressing her graduation degree. Further, she even gave a false declaration in this regard in her joining letter dated 8/8/2007. In the circumstances we are of the firm view that the order of termination issued vide letter dated 2/12/2009 was justified.
11. Assailing the order of termination the learned Counsel for the writ petitioner/respondent relied upon the case of T.S Vasudavan Nair versus Director of Vikram Sarabhai Space Centre and others reported in 1988 (Supp) Supreme Court Cases 795. Reference has also been made to the judgement in Commissioner of Police and others versus Sandeep Kumar reported in (2011) 4 Supreme Court Cases 644.
12. The aforesaid judgments are clearly distinguishable on facts from our present case. In T.S Vasudavan Nair's case the Apex Court observed that the appellant should not have been denied the employment on the sole ground that he had not disclosed that during emergency he had been convicted under the Defence of India Rules for having shouted slogans on one occasion. In Sandeep Kumar's case the respondent Sandeep Kumar's candidature for the post of Head Constable was cancelled on the ground that he had concealed his involvement in a criminal case under Section 325/34 I.P.C when he was aged about 20 years. It was held by the Apex Court in the said judgment that young people often commit indiscretions and approach should be to condone such indiscretions rather than branding them as criminals for the rest of their lives. It is evident that the two decisions referred on behalf of the writ petitioner/respondent are out of context and in no way applicable to our case in hand.
13. Laying much emphasis on paragraph 21 of the judgment of the Special Bench of this Court in Rina Dutta's case, learned Counsel for the respondent/writ petitioner submitted that a candidate cannot be debarred or disqualified on the ground of possessing a higher qualification than that advertised unless the employer makes a rule providing for such disqualification.
14. We have perused the judgment of the Special Bench including the paragraph relied upon which has to be read with reference to the entire facts and circumstances of the case and not in isolation. Furthermore, paragraph 21 has to be read in continuation of the preceding paragraph 20 of the judgment. The relevant paragraphs 20 and 21 are quoted thus:
"20. As regards the question referred by the Division Bench, we are of the view that the question can be answered only after examining the scheme for the concerned post and the nature of the duties required to be performed and the nature of the services to be rendered by the holder of a post and the qualifications prescribed. Nevertheless, the general answer would be as follows:
21. When a particular qualification is laid down in an advertisement relating to a distinct class of candidates, the candidates possessing a qualification higher than that advertised can ordinarily not be debarred or disqualified, but it is open to the employer to make a rule providing for disqualification of candidates possessing qualification higher than the prescribed qualification, but the burden would be on the employer to justify such a rule."
15. In the judgment referred it was held that "the advertisement did not specifically debar or disqualify graduate women from applying for the post of Anganwadi Workers and, therefore, the engagement of the appellants and the other private respondents in the writ petition as Anganwadi Workers could not be said to be illegal on the touchstone of the advertisement." The Special Bench was not inclined to disturb the appointment of the appellants and others "having regard to the fact that they were appointed way back in 1998 and they continued in employment for the last 12 years and the advertisement specifically did not disqualify or debar graduate women." In our case in hand, unlike Rina Dutta's case, the advertisement dated 5/7/2006 specifically prohibits graduates from applying for the post. Apart from this, in the aforesaid judgment the Court considered the fact that the appellants were appointed long back in the year 1998 and had continued in 'employment' for the last 12 years which is not so in our case in hand. Therefore we are of the view that the judgment referred is of no help to the writ petitioner/respondent.
16. For the reasons discussed we are unable to concur with the decision of the learned Single Judge. The impugned order dated 12/9/2012 passed in W.P No. 19895 (W) of 2012 is therefore not sustainable and is accordingly set aside.
17. Consequently, the appeal is allowed.
18. No order as to costs.
19. Urgent photostat certified copy of this judgment if applied for by the parties, shall be supplied subject to compliance of requisite formalities.
(Asha Arora, J.) (Nishita Mhatre, J.)