Central Administrative Tribunal - Mumbai
Yojana Nitin Urankar vs M/O Defence on 24 March, 2023
13 GA S18 of 2OL9 Central Administrative Tribunal Mambai Beach, Mumbai Original Application No Sis/2019 o "hy oe Dated this & suiday the $.4 day of March, 2023 Coram: Shri Justice M.G. Sewlikar, Member (J) Dr. Bhagwan Sahai, Member (A) Mrs. Yojana Nitin Urankar, Age- 42 years, Chargeman (Mech-IT) Ordnance Factary, Dehtu Road, Pune -412 101. Byat Sr.No. 74, Plot No. 19/20, Adarshnagar, Kiwale, Dehu Road, Pune - 412 101 . Applicant (Mis. Annie Nadar, Advocate) Versus The Union of India, through The Secretary, Ministry of Defence, Department of Defence Praduction, South Block, New Delhi ~ 110 001. The Chairman and Director General, Ordnance Factories, Crrdnance Factory Board, Avudh Bhavan, 10-A, 8... Bose Road, Kolkata ~ 700 001. OASIS oF 20> 3. The General Manager, Crdnance Factory, Dehu Road, Pune 412 101. .. Respondents (Shri R.R. Shetty, Advocate) Order reserved on 103,03.2023 Order pronounced on + 24 Mlaackh 2673 et ORDER Per:- Shri Justice M.G. Sewlikar, Member (J)
By this application, the applicant is challenging the order dated 23° July, 2019 whereby services of the applicant stood terminated on expiry of the protection period of 7 days.
2. Fats giving rise to this application gre that respondent No.3, Ordnance Factory published an Advertisement m Employment News weekly dated 13-19" December, 2003, inviting applications for direct recruitment in Group °C" and "D' pasts. According to the Advertisement, there were 14 vacancies, out of which 7 vacancies were earmarked under General/unreserved category. The applicant made application to the past of Lower Division Clerk (LDC) under the general category on 16" December, 2603. Preliminary selection test was held on 25" September, 20S. After clearing preliminary selection a test, the main selection was held in two stages, namely, written tes OASIS af 2S test and skill test. Results of main selection test were declared on 39° January, 2006. However, the marks of the selected candidates were not indicated in the select list. The name of the applicant did not figure in the select list. The applicant Aled application under RTL en 21" February, 2005. She received reply to the application under RTI on 31° March, 2006 informing her that she had secured 92 marks in the main selection test held for the post af LDC. The last candidate selected for the post of LDC from General category had secured 93 marks. In the meantime, the applicant was appointed as Junior Clerk on 18"°March, 2006 in Shree Chanakya Education Society's Indira Group of Institutes, Pune.
Sabi :
It is firrther alleged by the applicant thet one Shri Sanieey Ambastha, a candidate selected under the general/unreserved category intimated the respondents in writing that he was not interested in joining the respondents as LDC. Thus, one vacancy was created because of non-joining of Shri. Sanjeev Ambastha and two vacancies were remained to be filled as two candidates under general/'unreserved category by the names of Shri Bined Romar and Ms. Lalitha Nagrajan did not jom. the post of LIC in the office of respondent No.3. Thus, there were three clear vacancies in the cadre of Lower Division Clerk in unreserved category due to the non-joining of fhree selected candidates. The applicant was placed in a waiting list.
A, Since the applicant was in the waitlist, she was considered for appointment against unreserved vacant post as per OA $18 of 2018 the wait list. She was offered an appointment on the post of Lower Division Clerk by letter dated 15" February, 2007. Later on, the office of respondent No.3 sent her Hank attestation forms as the same were required for statutory verification of the character and antecedents of the applicant before her appointment to the post of Lower Division Clerk.
5. Thereafter, the applicant tendered her resignation letter on 10" January, 2007 to the office of Shree Chanakya Education Society's Indira Group of Institutes, Pune giving one month's notice, Shree Chanakya Education Societys Indira Group of Instinves, Pune accepted her resignation and issued a certificate to that effect on 10° February, 2007.
& It is further alleged that respondent No.3 issued an appointnient lelier to her appointing her as Lower Division Clerk at Ordnance Factory, Dehu Road. The applicant accepted the omer of appointment dated 15° February, 2067 and joined the office of respandent No.3 as Lower Division Clerk on 21° February, 2007. After completion of probation, the respondents confirmed the applicant on the post of Lower Division Clerk on 21" Septernber, 2009. The apphcant was promoted to the post of Chargeman (Tech/Mech-IT} weet. 18" July, 2012.
Z, On 29" Jone, 2019, the respondents issued show eause notice dated 29° Tune, 2019 mentioning therein that her initial appointment to the post of Lower Division Clerk on 21"
", February, 2007 in the office of respondent No.3 was irregular and te Cathey hen, sy ae, ie in called upon the applicant to show cause as to why the appointment of the applicant to the post of Lower Division Clerk should not be cancelled and why her services should not be terminated with immediate effect. Against this shaw cause notice, the applicant preferred Original Application No492/2019. This Tribunal disposed of Original Application No.492/2019 on 18" July, 2019 with a direction te the respondents to decide the representation of the applicant as per law by a speaking and reasoned order within a period of four weeks. The respondents were further directed not to give effeot to the order in pursuance of the show cause note dated 29" June, 2019 for one week of the communication of such order fo the applicant.
&, The respondents decided the representation and rejected her representation on 23 July, 2019. The applicant has challenged this order dated 23° July, 2019 Le. the impugned order in this application.
g Aceording to the respondents, she was given appointment to the post of Lower Division Clerk erroneously ignoring two candidates who scored higher marks than the applicant. Therefore, her appointment was iregniar and, therefore, her services were terminated after protection period of 7 days from the date of receipt of this communication. According to the applicant, no inquiry was held before terminating her services. She was not given any opportunity to defend her case. Therefore, the order is bad in law.
i & OA $18 of 2019 ith The respondents have filed thelr written statement.
The respondents contended that in the impugned order, it is clearly explained that the applicant had secured 92 marks and, therefore, could not have been appointed being not in the general merit and had lower marks than two waillisted scheduled caste candidates Le Shri Sanjay Bedekar and Shri Milind Gajbhive, who had scored 93 marks. These persons were entitled to be appointed in the general category by virtue of their having met the general standard where t one Shri Sanjeev Ambastha was appointed and, thereafter, he quit service for better opportunity. Therefore, a vacancy had arisen and, accordingly, the applicant was appointed to the said post of Lower Division Clerk. It is further allezed that since there wer scheduisd Caste (SC) candidates available and who were much higher in the merit than the applicant, these persons deserved to be appointed as general category on the waitlist basis and ath ver SC candidates would have been appointed in the place of Shri Sanjay:
Bedekar and Shri Milind Gajbhiye. The respondents, therefore, contended that the appointment of the applicant is clearly illegal, dehors the rules and, accordingly, her services were terminated. Once the appointment itself is bad since its inception, { if cannot be sanctified at a later stage. Therefore, there was no question of holdune disciplinary proceedings, dd, The respondents Arther contended that afier condueting the maim test and interview, the merit/select Net was prepared consisting of 16 sames (13 selected candidates and 3 CA SIP oF ZO19 waltlisted candidates) for 7 UR Posts, 2SC Posts, 3 OBC posts and | PH post. The list is reproduced here:-
Name "TP Rell Marks | Remarks UN- Sanjeev io 186 SELECT RESERVED | Ambasiha Chandrashekhar | 250. 108 SELECT-1 Mihaske a Amut Kumar Pande 10 SELECTAY Ravi Remar. 10} ee PAV pinot eck] Raed.
eek ito BS tent Lao crs elk {pes ss elke eal c.. Satvanuravanan oo SELECT me a He iO oo Bined Kamar Reshay Urude LPs Cope 8 eet LG | 3 Lalitha Nagralan p 9° WATTLISTED _ 8c Joginder Singh (3198 89 SELECT-I Kalyani =e 'Kade Surwade 1567 | O4 SELECT Saniay Bedokar | 1772 9S WAITTLISTED CBC Najim Attar 1159 195 SELECT-{ Bavi Ranian Kumar {1938 | 92 SELECTAL Rahssh Das {897 92 SELECT-I Shyam Rathod 1962 | 92 WALTLISTED ~ PH Abhgit Valunj Fie 18h SELECT-] Permission was granted for provisional appointment of the 13 selected LDCs for G0 days without police verification reports (PVR). Initially 10 LDCs joined, One of the candidates Shn Binod Kumar did not join within the stipulated time. Since he did not join, his candidature was cancelled. Similarly, another waitlisted candidate, Ms. Lalitha Nageraian did not join the duties despite offering her appointment. Shri Sanjeev Ambastha had refused to. join. Therefore, as per merit list, the applicant was offered the post of Lower Division Clerk. The applicant joined the duties on < February, 2007 as Lower Division Clerk. According to OA STS of 2019 respondents, the name of the applicant did not find place in the select list/wartlist of candidates. The result sheet submitted by the committees comprising of Dr. AK. Bose, Shri Rundan Singh and Shri B, Rameshwar Rao, contains the remarks against her name as "ot Selected'. Therefore, investigation was ordered in the matter, i2. The matter was investigated by Diirector'Vigilance (West) who concinded that her appointment had been made ignoring the position/marks of atleast two other Scheduled Caste candidates by the names of Shri Sanjay Bedekar and Shri Milind Shaibhiye. Both af them had secured 93 marks each whereas the applicant had secured 92 marks. The name of Shri Sanjay Bedekar was there in the waitlist prepared for SC candidates whereas the name of the applicant did not find place in the select Avaitlisted candidates, The appointment of the applicant was, therefore, egal and veld ab initio, It is contended that appointment of the applicant was made ignoring the position/marks of two SC.
candidates namely Shri Sanjay Bedekar and Shri Milind Gajbhive, The applicant was ineligible te be appointed as Lower Division Merk, The order of termination snot by way of punishment but it is a termination simplicitor. Her application is not maintainable.
Therefore, they prayed for the dismissal of the application.
ig, The appucant fled rejoinder. In the rejoinder, the applicant has contended that the applicant had qualified for the prelumtinary selection test. She appeared Tor the main selection test and her name did not figure in the said select list. However, due to the non-joining of two selected candidates under the unreserved category, the applicant was considered by the respondents according to the merit list, after obtaining the approval of the competent authority Le. General Manager. The applicant was subsequently supplied with blank attestation form by the respondents for statutory verification of her character and antecedents prior to her appointment to the said past of Lower Division Clerk. Thereafter, she was appointed as Lower Division Clerk agaist sanctioned and vacant post. Lt is contended that the respondents had followed the appropriate procedure for recruiiment/selection and appointed the applicant as per the prevailing roles. If there is any irregularity, the applicant had no role to play in that irregularity. Therefore, the claim of the a respondents at the belated stage is illegal.
id, Tt is further contended that respondents themselves did not consider Shri Sanjay Bedekar, even though waillisted, for > OH Becotnt of nen-
eu % "?
= eek & 3 ie aod oS a fa Po oi Be pee et 73 oe gee eee tb "
ee] c+) g pow C2 Rat $3 hog pow he aS pak GG oo joining of selected candidates. The applicant neither misrepresented nor committed any fraud to obtain the appointment in the office of respondent No.3. As regards Mr. Milind Gajbhiye, he is not selected candidate as per respondents own record and thus cannat be considered for appointment to the post of LDC under the unreserved category. The respondents have themselves admitted in their letter dated 28" December, 2006 (Annex A-10) that the applicant was placed in the weaitlist according to merit. Tt is contended that the applicant has been appointed by the Competent Authority after having duly followed the process and Ww QA 518 of LOLS has completed the probationary period. The respondents are now estopped from contending that her appointment was illegal.
rs, We have heard learned counsel for the applicant Ms. Annie Wadar and Shri R.R. Shetty, learned counse! for the respondents at great length.
£6, Ms, Nadar submitted that the applicant had appeared in the examination and had secured 92 marks. Since she was not selected, she took up the employment as Junior Clerk in Shree Chanakya Education Society's Indira Group of Institutes, Pune.
The applicant was offered appointment to the post of Lower Division Clerk. She submitted that as per the contentions raised fn the reply, tf is evident that before offering the appointment to the applicant, proper procedure was followed and approval of General Manager was obtained for the appointment of the applicant. Only thereafter, letter of offer of appointment was sent to the applicant, She accepted that offer and accordingly she was appointed as Lower Division Clerk. She satisiactorily completed her probation period. She was made permanent and also promoted as Chargeman, After puttiag 12 years of service, on one fine morning, 1 dawned on the respondents that the appointment of the applicant was illegal as she was not selected candidate and her name did not figure in the waitlist. She submitted that in this entire process, the applicant was not at all involved. She is not guilty of misrepresentation. nor did she practice fraud on the respondents.
The applicant had joined as Junioer Clerk at Shree Chanakya re} OA S18 of 2019 Education Society's Indira Group of Institutes, Pune. Because of the offer of appointment given to ber by the respondents, she tendered resignation of the post of Junior Clerk in Shree Chanakya Education Society's Indira Group of Institutes, Pune and joined as Lower Division Clerk with respondent No.3, Therefore, the respondent No.3 is estopped from contending that her appoimtment was illegal. She contended that thres vacancies had been created on account af non-joining of Shri Sanjeev Ambastha, Ms. Lalitha Nagarajan and Shri Binod Kumar, The respondents could have appointed Shri Sanjay Bedekar in one of the vacant posts. So far Shri Milind Gaibhiye is concerned, he was not a waitlisted candidate and therefore, there is no question of giving offer of appointment to him. Since one more post was vacant, the same could have been filled by appointing Shri Sanjay Bedekar in unreserved category. She submitted that vigilance inquiry was sonducted behind her back, What are the findings of vigilance = inquiry, the applicant is not aware. Copy of vigilance report ought to have been provided ta her. The respondents did not provide her copy of the vigilance report. Therefore, the order of respondent No.3 terminating the services of the applicant is tlegal. She placed reliance on the followmy case lawse-
fijRuw Aristna Dubey Vs. State af Bihar and others, 2008 SCC Galine Patna 273 (Gi.dmarkant Rai Vs. State of Bihar and Ors, Civil Appeal Ne2s3ss af 2015 farising ort af ALP (Civil) No. 2028938239 ° Pers Aewisiage.
he: "es, te a foes Low CMA AES af Sa19 {iif} Sira} Ahmad Fs. State of Uttar Pradesh and Ors, Civil Appeal No.$di2 of 2t19 (Arising out of SLP(C) No. 3tuel of 2017) decided an 13.12.2019
(iv) Mohinder Singh Gil &Anr. Vs. The Chief Election Conunissioner, New Delhi &Ors, 1878 AIR 881 (i Nitin Vs. The Education Officer (Secandary) Nrit Petition Nod043 of 1999. Bombay High Court (Nagpur Bench} fel) Bharat Sanchar Nigam Lintited &Anr. Fs. Sandeep Choudhary & Ors, Civil Appeal No.8717 of 2013 (vil) Gor Kontulben Gajendrakumar Vs, District Primary Education Officer, Special Civil Application No.3389 of £993 (Gujaral High Court.
rf Shri Shetty, learned counsel for the respondents submitted that the name of the applicant never figured in the waitlist. The record of the respondents shows that the applicant was not sslected. He further submitted that there were two candidates belonging to reserved category whe had secured 93 marks and they were entitled io be appointed. However, ignoring these two candidates, the applicant oame to be appointed as Lower Division Clerk. Therefore, the appointment of applicant as Lower Division Clerk was illegal since inception. He submitted that therefore anything which is illegal carnot be sanctified dater, According to him, the illegality cannot be perpetuated. He placed reliance on the followin ¢ case laws:-
@) State of West Bengal and Others hs. Aghare Nath Dey and Offers (2993) 3 Supreme Caurt Cases 37] CET QA dS of 28 Gi) Chairman, All India Railway Recruitment Bourd and Anather Vs. K. Shyam Kumar and Others, (2010) 2 Supreme Cansrt Cases (L148) 293
(ii) Pramod Kumar Vs. UP. Secondary Education Services Commission ond Others, 2008) 7 Supreme Court Cases 133.
Ts We have carefully considered the submissions made by the learned. counsel on both the sides.
i% The applicant had made application for the past of Lower Division Clerk in response to the Advertisement published in Employment News weekly dated 13-19" December 2003. The application was made under seneral category on 16 December, 2003. She had correctly mentioned her educational and professional! snehieain Preliminary selection fest was conducted on 25" September, 2005. The applicant cleared the preliminary test and, thus, qualified for the main selection test, which was held on 27" November, 2005. The main selection test results were declared on 30" January, 2006. Marks of the selevied candidates were not communicated to the candidates. Her name did not figure in the selection list. She made an RTI application in response to which she was informed that she had secured 92 marks, In the meantime, the applicant was exploring other avenues of appointment, She was appointed as Junior Clerk in Shree Chanakya Education Society's Indira Group of Institut es, Pune. It is also not in dispute that respondent No.3 issued to her offer of appointment to the post of Lower Division Clerk at Ordnance Factory, Dehu Road dated 15" February, 2007. She accepted the OA S18 of 2019 offer of appointment and joined the office of respondent No.3 as Lower Division Clerk on 21° February, 2007, after tendering resignation of the post of Junior Clerk in Shree Chanakya Education Society's Indira Group of Institutes, Pune on 10"
January, 2007, It is also admitted that the applicant was promoted as Chargeman. Vigilance inquiry report was received by the respondents in which it was mentioned that the appointment of the applicant had been made ignoring two candidates i.e. Shri Sanjay Bedekar and Shri Milind Gajbhiye. Accordingly, shew cause notice was issued to her calling upon to explain as to why she should not be terminated,
20. From all these events, one thing that emerges is that the applicant hed no role to play in her appointment as Lower Division Clerk. Everything was done at the instance of respondent No.3. Later on, offer of appointment was given by respondent Nod which was accepted by the applicant and she came to be appointed as Lower Division Clerk on 21° February, 2007, The show cause notice was given to her on 23° July, 2019 whieh means after compiction of 12 years of service. In the show cause notice also, it is clearly mentioned that the applicant has not obtained appointment by misrepresentation or fraud. Her appointment was. questioned by respondent No.3 itself contending that Owo candidates who had scored more marks than her (Sari Sanjay Bedekar and Shri Milind Gajbhiye) were fenored. According to respandents, the applicant's appointment was against the extant Government instructions on the subject.18
OA STP OF ING oe. Tr will be apposite to find out as to how many vacancies were there at the time when offer of appointment was made to the applicant. [tis not in dispute that the respondent No.3 had selected 16 candidates Le. 12 selected and 3. waitlisted candidates. From the reply of the respondents, it appears that Shri Binod Rumar, Ms. Lalitha Nagrajan and Shr Sanjay Ambastha alse did net join the duties. Therefore, out of these [3 selected candidates, three candidates did not foin the duties. Thus, there were three vacancies which were of unreserved calegory. The applicant also belongs to unreserved category. These two nandidates je. Shri Sanjay Bedekar and Shri Milind Gaibhiye could have been adjusted 1 in these three vacancies created duc to non-joining of the above referred persons. Therefore, there is no justification in contending that the applicant's appointment was made ignoring those two candidates.
22. Mare over, in the provisional select list, the mame of Shn Milind Gajbhiye did not appear. Therefore, the contention of the respondents that her appointment was made by ignoring those iwa candidates ie. Shri Sanjay Bedekar and Shri Milind Gajbhiye, has no force. Even from the rep it dogs not appear that Shri Milind Gaibhive was ever selected, At page &4, a list consisting of 16 names (13 selected and 3 waitlisted candidates) was prepared in which the name of Shri Milind Gajbhive does not appear. When the name of Shri Milind Gaibhiye was not in the select Hist, the question of appointing the applicant by ignoring Shri Milind Gaibhive does not arise, 3& OA 318 of 2019 ad, >)
2) legal aan yet no a Now the question is whether her appointment was . In the case of ase of State of Bihar Ps Aird Narayan Prasad dated JUL 2018 and State of Orissa and Another Fs. Mamata Mohanty, 201 itself fU11(3) SCC 436, Apes Court has held that once an order of appointmen f is bad at the time of appointment, fi cannot be sanctified at a later stage and, therefore initial holding discip!i inary proceedings FAAS envisaged by Article 311 of the Constitution or under any other disciplinary rule shall not arise Fram the reply of the respondents, i appears that final merit list was prepared. In para 3 of the reply, final merit wise position is shown in tabular forra by 1 by the respondents. ft applicant's name shows that the figured at serial No.15 and she had scored 92 marks.
24, The applicant's appointment was made by the respondents after following due procedure A note was prepared by Joint General Manager, Ordnance Factory, Dehu Road, in which it was oad. in which j mentioned that appointment letiers had been issued to all the candidates on provisional basis after taking permission from CSQ/OFB. This note firrther mentioned that Shri Sanj Ambastha was appointed as Lower Division Clerk on Provisional basis Hoe under unreserved catevory.
Since his police verification port did not come within the stipulated time, iis service was erminsted. Later on, | ae duties. * intimated that he did not want to join the The note frther mentioned thet one VACANCY Wa in the UR calecory x ral SS aVAl ilal ble and can be Qlisd up by appointing a from. the waitlist according ¢ candidate & © to the merit. Accordinghy, a pplicant a:
BREET Seis ean % F, a vy (3A SLB OF A019 came to be appointed as Lower Division Clerk on vacant UR Canreserved) post. This note was approved by General Manager on 28.12.2006. The only objection. that. owas raised is that the applicant's name did not figure in the waitlist and, therefore, the appointment is Megal and this so-called iegal ity was noticed after receiving the Vigilance inquiry report. Learned counsel for the applicant places reliance on the case of Mowinder Singh Gil & Anr Fs. The Chlef Election Commissioner, New Delhi & Ors, AIR 1978 Supreme Court 831 in which i has been obscrved thus :
"The secand equally relevant matier is that when a stamgory anes makes an arder based an cera grounds, fs validity must be judged oy the FEGSURS SO mentioned and ecunnet be supplemented by fresh reasons iv the shape of affidavit or otherwise. Otherwise, an order bad te the beginning may, oy the nme if comes fo court on account oF @ challenge, get validated. by additional grounds later brought out, We map Here draw atlention t the observations af Bose Join Croratte undies Bharyi "Public arders, publicly made, la exercise af a statutory authoray we eanot he construed in the light of explanutions subsequently giver by the officer making the order of what he omeant, oF of w fat 9 aces in Ady mind or what} infendeéd tc, da, P whlico s :
are meant fo have pub hte g ¢ made by publ fs udhice and are Divert lead fe the actlags and conduct af thase to whom they are addressed and must be construed wR ? x reference fo the language used in the or der self td The principle laid down in Mohinder Singh Gill's case (supra) squarely applies to the facts of the case at hand. In the note, the respondents had stated that the svplea was on the waitlist. Order .
of yasive RSLS xs "Ss hee as) & OA SLS-of BOY af the respondents can be judged only on the basis of the reasons stated in the note and not on the basis of the investigation made by the Chief Vigilance Officer, OFB. Result of investigation by CVQ-
cannot be considered to decide the validity of the order passed by respondent No.3, The respondents have taken this action on. the basis of the CVO report. The respondents did not Initiate any action on their own but the action was initiated on the basis of the report of the CVO. The action of the respondents, therefore, carnmot be sustained.
Sng 25, Learmed counsel for the respondents Shri Shetty submitted that the decision of the Supreme Court in Mohinder Singh Gill's case (supra} has been distinguished in the case of Chairman, All India Railway Reeruitment Board and Another Vs. K. Shyam Kumar and Others (supra) in which Supreme Court has made following objections: | "dd We are also of the view that the High Court has commitied a grave error in taking the view that the order af the Board could be judged only on ihe basis of the reasons Stated in the impugned order based an the report Fa Mipilance and maton the subsequent materials fisished : CBI Possibly, the High Comet had in mind the omstinition Beneh Judgment of this Court in Afohinder Singh GUY. Chiel Mection Comnnr.
a3, Fe are af ihe view that the decixiav-maker can always rely upon subsequent materials o support the de elsion already | taken when larger public Court in Madhyamic Sitksha Mae Sivksha Prasar Samiti i found HO MP yEy reliance on a subsequent report to sustain the con ncéltttion OA JLB of BOTS af the exconination 'conducted where there were serious allegations of mass copying. The principle laid down in Mohinder Singh Gil case is not applicable where larger public interest is involved and in such sitvatons, additional grounds can be looked into to examine the validity ef an order. The finding recorded by the High Court that the repart of CBI cannot be loaked info fo examine the validity of the order dated 4-6-2004, carmat be sustained."
We fail to understand as to how this decision of the Supreme Court is applicable to the facts of the case in hand. In the case of K. Shyamkumar and others (supra), the facts were that writien test was held at various centres by Railway Recruitment Board. The candidates who qualified for physical efficiency test were called for verification of original certificates. During verification it was noticed that certain malpractices had taken place in the written examination and therefore it was decided to refer the matter to the State Vigilance Department. The Vigilance Department conducted the preliminary inquiry and submitted the report which revealed that there were allegations of leakage of question papers, mass copying and impersonation by candidates in the written test. The report also indicated the possibility of ignorance of some employees of the Railway, Therefore, the skill test was decided to be conducted. This devision was challenged. On this background, Supreme Court held that decision maker can always rely of subsequent material fo support the decision already taken when larger public interest is invalved. Supreme Court has also observed that Mohinder Singh Gill's case is riot applicable where larger public interest is Involved. In the case at hand, no larger ages tt eS OA S18 of BOL public interest is involved. There are no allegations of fraud, misrepresentation, forgery, ete, a against the applicant. It, therefore, carmot be said that Mohinder Singh GHIl's case has no application to the case at hand.
26. Shri Shetty placed reliance on the case of State of Nest Beneal and others Vs, Aghore Nath Dev ond Others {supra}, it has been held thus :
"_. Pe suey, therefore, first refer fo conclusion (4). It ts clear from conclusion (4) that fo enables seniority fo be counted from ithe date oft intial apgeininient and nel according fo the date of confirmation, the incuanibert oF the past hax to be initially appuinier ad 'according to rules'. The corollary set out in conclusion fd), then is, that yehere the Initial a pporninent is andy ad foe and not according to mules and pide as a slo pea arrangement, the o apie iation in such pe sis cannot be taken into acccunt ci ne the genic rity | Thus, the corollary In jor COR Tied rit d CON Maes Ine cutege ary oF eG EIES where the init tiad ap npointee ME gS only ad Rec and not sceording to rules, only as a sfapeap arrangenient The case Of the wril petitioners squarely falls withia this corollary ia coelusion (4), wie savs that the officiation ig such posts. cannot he token inta account Jor counting the seniority."
one
27. Learned counsel Shri Shetty placed reliance on Pranied Auger Fs. UP Secoadary Education Services Comunission. and.
Others (supra) in which it is held that an appointment which is contrary to the statue/statutery rides would be void in law. An illegality cannot be regularized, particularly when the statue m no mistaken term says so. Gniy an irregularity oan be. This decision az CWA STR oF BOLS coo does not apply to the facts of the case at hand. In the case of EP IE . .
is BS %\ Pramod Kumar (supra), the applicant was not possessing a degree granted by University recognized by the Commission . This is not the fact situation in the case at hand. The applicant did not have any role to play in her appointment as Lower Division Clerk. The applicant had joined Shree Chanakya Education Society's Indira Group of Institutes, Pune. Gn receiving the offer of appointment, she tendered the resignation of the post of Junior Clerk in Shree Chanakya Education Society's Indira Group of Institutes, Pune and joined the duties with respondent No.3. In the case af Pramod Kumar (supra), the candidate did not have the requisite qualification. In the case at hand, everything was done by the respondent Nod self, Appointment was offered by respondent No.3 to the applicant. She joined the duties. She was also promoted. Therefore, the respondents are now estopped . fram contending that her appointment was Ulegal. For this purpose, learned connsel Ms. Nadar placed reliance on the case of Gor Komaihen Gajendrakumar Fs District Pronary Education Officer (supra). Ip this case, facts were that Disirict Panchayai Education Committee issued a public advertisement advertising the vacant posts of Primary Teachers in the Primary Schools. Select Hst was prepared, orders of appointment were issued. In all, 442 candidates were selected based on said select-list. All the 442 candidates joined the duties within 10 months. 118 persons who joined as Teachers received the orders of terminating their services. Tt wag stated in the order of termination that Stale ok be OA 348 oF 2019 Selection Committes had allotted more marks. Large-scale complaints were received alleging irregularities and illegalities in recriltment. li was further slated In order of termination that the candidates were not entitled to additional marks which were given and allotment of additional marks was contrary to Government circular dated 07" August 1989. Gujarat High Court held thus--
"3d. The Doctrine af promixsory extappels was, for the first tine, applied by the Supreme Court in the case of Union of India v. inde Ajghon dgencias reported in MANUPSCO02 If 1 867: AIR 1268 SC 718. Subsequently, the doctrine was "pple in the case of Century Spinmung & Afanufecturing Cos, Lid Fo The Ulhasnagar Muni cipal & rt Council and Anr. reported in MANUSSCOOSH 1790 » AIR iQ?) SC 102) wherein the court observed that "Public bodies are as much bound ax private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered ihelr position fo their prefudice. he abligatian arising against an individual out oF fis pepresentation amourntoig fo & promise may be enforced ex contract by a person wit dels apon the promive, when the law requires fal a ontract enforceable at ime agaist a public body shall he in certain form or be executed In lie manner prescribed by the Statute, the abligatian may be enforced against if in apprapriate cases in equity. in the case ef ALP. Sugar Adis ow Stete of up _ reported in MANUESCIOS36T 978 > AIR O78 SC Dy wie hiv Shoes weve) Advseed ghe pongt Bhagwati fas His Lardship Men was} ni ed fie post wd oe he, tory eloquent expansion of the doc . eine ta the following words ¢ where one party fas by Ais words ar conduct ? : iy Sete z apes made Na tie OTHER @ ¢ slear and HNEGUTVOCR! PPOTRISS fond fat OA 318 of 2N19 which is intended to create les gal relations or afect a legal relationship to arise in the future, keowilig or Yay intending thar if would be acted upon by the other party to whom the promise is made and if ix in fact se acted upon by the other party, the promise would be binding on the party making if and he would not he entited to ga back upon i f it would be him fo do so having regard to the dealinas which have taken place between the ineyuitable to allow } parties, and this would be so irrespective wheiher there is any pre-existing relationship between the parties or not"
33, Jn the case af Bhim Singh & Ors. v. State af Harvana & Ors, reported in MANUYSC/OS3 1/1978 > AIR ty 1980 SC 768, once again the doctrine was invoked by the Supreme Court when the State Govt. holding out certain specific promises as inducement for Us employees to a move tate a newly created department. The employees x acted on the said repart and moved te mewly created department. Hawever, righty and benefits which were promised to them in the representation by the State Gove. were sought to be denied wherenpon the Supreme Cot intervened ond applied the dactrine of aramissory exsfappel.
36. Attention of this court is invited By the Ld. '= Advocate for petitioners to application of said doctrine in A case of master-servant relationsitip. The reliance was placed upon the decision of the ENvision Bench af Orissa High Court in the case of Ronehhanidhi Das vy. State oy Orissa reported in I972(2) SLE 429. in the said call the State Govt as well as Notified drea Counell granted exemption to the petifiener fram the requirement of my ape. of * SfS wee engi Pagers peed possessing specific qualifications. After granting such exemption petitioner was' promoted He thereafter continued in service for five decades and when he was about to superannuate he was sought to he demoted on the ground that he was lacking requixite qualification. in fe the afmresnid situation, the Dhdsion Benck apalied the oi r te Joctrine of promissory estoppels by referring to the wary ower aforesaid decision of te Suprema Court.
ei 3
40. in my omlnion, in wew of the aforesaid: decisions more particulariy the decision ef Supreme Court in the case of Matilal Padmapat Suger Avills (supra) lav on the subject ig very clear. The issuance of advertisement Jor ~! re ne ne the post af Promary Teachers, the action of the ttioners in applying jor the past of Primary Teachers in response thereto, the preparation af select ist by re Selection commitiee of the respordent-authorities and lastly isswance of order of appointment in favour of petitioners consiiiuie a promise on the statement of per ergs ea wore or tees ee cred ee ba oe ys bee af ox} } Ne assurance ta ihe pettioners that feshe she il be gppointed an the post of 'priniary fear her on Hisvher being a aeted for such post by ihe Selection Comanuttee. fo reinforce that assurance there is further stigndation in the order thet sueh teacher shall have to execute bond af Rs JOD00% to serve for a period of free years within ?
x davs. Thirdly, condition was stipulated th at thé & shall Aave to resign from the place of emp ayer uJ g Lestelee ta orbs é chet dares hefshe ix already employed and shall Aave 2 ' i. > Reet ee duty within 7 days alor eniificate Pras. tne em ao rete } ity SF he ope Pe sare Releoyx oy cr fe x PES, yey r & AADRE LE « PPE PILE Pen Paya Ss: Gy THES Rie Oke SORE LE £ ccyt cert Eeeiyacstfea ey by ran ee ccintoarh gyeanae spans ofeytanseey er stated hereinabove, acted upon such Statement anc resigned from seir employment they undoubtedly acted to t en? and allered their : R seo PS YD oHdered thepiwelves:
ee ett wy sg eae « Serene positian fo their disadvantage oy Jobless to secure new pod with the respondents. BH hen OA SL of BOS {ERR such petitioners are 30 aught fo be terminated Jrom the i SX s\ employment which was offered io them by the e rder of i eS z, 5) appoinmnent they having acts ed on the report of the Set' respondents fo their disadvantage and they having altered their position fo their prefudice are entitled 10 inveke principle of promissary estappe els so as te request the court to estop Me respondents from terminating ther service, When confronted with this factual background Afr. RA. Mishra, Ld Advocate for respondents very faintly submitted before the court that since suc dh feachers had conmitied irreeulariiies doctrine af pramissiory estoppels should ot be applied. Ax discussed hereinabove, irregularity, if ary, is committed by the Seetion Conunitiee andéor the of fficers of fhe. respondent gquiharities, The petitioners of category f set enue » hereinabove were not guilty of any irregularity mor bs any specific irregularity attributed To any of these petitioners having already resigned from the place af their employment with @ wiew lo joining the respondent 7 authorities in the prosary schoals being run by them, the of respondenis shall have to be est opped from termining i ; . cua }. : i eerare ee pS ES. rey fn " me Fe aaah oe Posh their services OF Qnponetg principle of EStOppel, Gnd ive resultant efeet would be ther the orders of terminatior issued against such petitioners by the voshondent-
authorities shall have tn be quashed and set aside,"
it ts further hela :
Even right af being considered por employment when denied by the conduct af respondents can be pre essed inte service by this. class of teachers to contend before the court thar they have acted to their detriment by accepting the en Np! lovment and by surrendering herr origind il certificates, It may be that sumber of suen teachers may heave become deebarred ff may he thar gies atten.
in future they may not be ot a position fo compete with 2 fresh candidates because of Rberal standaras applied in putting candidates for SSC8PIC examination. Number of factors may enter fate consideration, The ultimate result is that this class oF teachers have foregone the oppartunity of being eousidered for job because of their eniplovinent with fhe respec wdent-autharities, and seca ndiv because of the condition stipulated in the or der, 7 sevaely, that of retaining origina! certificates for three years. In ary omnion, faking aff factors inta consideration cumulatively and in tke peculiar facts and circumstances whiten He Hee "oF freud, arlpractice, ration are -- specifically _ an atvibuted to any of the petitioners and wren allegations of irregularities are attributable to the then Dist. Primary Education Officer or subordinate members of his staff i world be fust and proper to apply the doctrine of proniissory estappel In case of such teachers also so as fo estop the respondents from ey PY a ®.
fermtinating thelr services. * 28& This deeision of Gujarat High Court squarely applies to the a facts of the case im hand. In the case of Gor Romalben Gajendrakumar (supra), additional marks were given by the members of the selection committee though the candidates wers not entitled to get those additional marks. In the case at hand, the applicant applied far the post of Lower Division Clerk. Respondents offered her the appointment. In the note, if is stated that the applicant was in the wait list. This constitutes promise on . at Dt Ph rat i meas Pesky sa +b yg aga tas & 7 t the part of the respondents ip offer job to the applicant. The applicant accepted the offer and joined the duties. At that time, the applicant was working as a Junior Clerk in Shree Chanakya Edaeation Society's Indira Group of Institutes, Pune. She tendered 27 her resignation and joined the post of Lower Division Clerk. Her age is now 42, Being a person from unreserved category, her prospects of getting Government employment or for that matter, any other employment have been closed. This clearly shows that the applicant by accepting the offer changed her position to her detriment. There are no allegations of fraud or misrepresentation against the applicant. Therefore, principles of promissory estoppel can be invoked against the respondents. In addition to that, the respondents did not initiate the action on their own but they initiated the action on the report of Chief Vigilance Officer. Copy of the report of CVO was not provided by the respondents to the applicant. No inquiry was held. The respondents are, therefore, estopped from vontending that her appointment was illegal. She was entitled to know the findings of the Vigilance inquiry. It has to be held that principle of natural justice has been violated. Report of Vigilance inquiry need not be provided. in cases where large scale malpractices are noticed but in the case at hand, it was an individual ease. Therefore, she was entitled to the copy of the Vigilance inquiry report. In view of this, it cannot be said that the respondents' action in issuing show cause notice to the applicant terminating her service was justified.
OA S18 of 2019
29. In view of this, we allow the application, and quash and set aside the order dated 23° July, 2019 whereby the service ofthe applicant stood terminated. The applicant's service has been protected by interim relief. Therefore, the question of her reinstatement does not arise. All pending MAs, if any, stand closed. No costs.
(Dr. BHODWan Suhi) (Justice M.G. Sewlikar) Member (A) Member GD Fosnay f Shad