Central Administrative Tribunal - Delhi
Subodh Gautam vs Lok Nayak Hospital on 19 May, 2023
1 OA No. 1825/2022
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.1825/2022
Order reserved on: 26.04.2023
Order pronounced on: 19.05.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Mr. Subodh Gautam,
S/o Sh. Suresh Gautam,
Aged about 30 years
Group-C,
R/o House No.206A, Block-D,
Extension-2, Nangloi, Delhi-110041.
....Applicant
(By Advocate: Mr. Chandra Shekhar Yadav)
Versus
1. Govt. of NCT of Delhi
Department of Health & Family Welfare,
Through Secretary,
Near Udyog Bhawan Metro Station,
Maulana Azad Road, New Delhi-110011.
2. Lok Nayak Hospital,
Through Medical Director,
Govt. of NCT of Delhi
Metro Station Central,
Jawahar Lal Nehru Marg,
Near Delhi Gate, New Delhi-110002.
... Respondents
(By Advocate: Mr. Amit Yadav)
2 OA No. 1825/2022
ORDER
By Hon'ble Manish Garg, Member (J) In the present OA, the applicant is seeking the following reliefs:
"a. Quash the Order dated 07.04.2022 issued under File No. PF/EV/LNH/2019/1259-67 & Order dated 28.01.2021 issued under F./Misc./PM/OFFER APPTT/E- V/LNH/PT.FILE/2012/3872-73 by the respondent No.2; b. Direct the respondents to extend all consequential benefits to the Applicant w.e.f. 02.12.2019 in pursuance to the Appointment Letter issued vide Memorandum bearing no.F.No.1/RECRUITMENT//E-V/MISC.LNH/2016-715579- 82 dated 25.11.2019 by Respondent No.2; and/or c. Pass any other order Order(s) as this Hon‟ble Tribunal may deem fit and proper in the interest of justice."
2. Brief facts of the case as presented by the learned counsel for the applicant are enumerated below:
2.1 In response to an advertisement issued by Delhi Subordinate Services Selection Board (DSSSB) the applicant applied for the post of Grade-IV (DASS)/Junior Assistant. 2.2 He appeared in the entrance examination under Post Code 61/2015 against the vacancies on the basis of one tier examination held on 17.09.2017 by respondent no.1. 2.3 His selection was confirmed by supplementary result notice no.811 dated 13.08.2019. The applicant received an offer letter from respondent no.2 vide Memorandum dated 3 OA No. 1825/2022 25.11.2019 whereby he was asked to indicate his acceptance within 30 days qua the terms and conditions mentioned therein.
2.4 Thereafter, he visited the office of respondent no.2 on 02.12.2019 and gave his written acceptance qua the offer letter for the post of Grade-IV (DASS)/Junior Assistant and also produced the original documents as required by respondent no.2. He was also given a dossier to fulfill the requisite requirement for appointment to the said post. 2.5 The applicant disclosed the details of the required information in the dossier forwarded to him by the respondents but since then he has not received any information regarding his joining in terms of offer letter dated 25.11.2019. He also visited the office of respondents and met the officials concerned and enquired about his joining but did not get any satisfactory response from them. 2.6 Aggrieved by the inaction on the part of the respondents the applicant filed a Writ Petition (Civil) No.6860/2021 before the Hon‟ble High Court of Delhi. The said Writ Petition was allowed to be withdrawn by the Hon‟ble High Court of Delhi vide order dated 22.07.2021 with liberty to file before this Tribunal.4 OA No. 1825/2022
2.7 In terms of the liberty granted by the Hon‟ble High Court of Delhi, the applicant filed OA No.3037/2021 before this Tribunal, which was disposed of vide order dated 17.01.2022, directing the respondents to consider the pending representations of the applicant and dispose them off by passing an appropriate reasoned and speaking order, as expeditiously as possible and preferably within six weeks of receipt of a copy of that order.
2.8 It has been submitted by the applicant that when the respondents failed to act in terms of the order dated 17.01.2022, he, vide his letter dated 04.04.2022, sent a copy of the order dated 17.01.2022 to the respondents and requested them to comply with the said order of the Tribunal. 2.9 In response to the above letter of the applicant dated 04.04.2022, respondent no.2 sent order dated 07.04.2022 wherein they have, for the first time, stated that the candidature of the applicant has been cancelled vide order dated 28.01.2021 as he was arrested and booked under case FIR no.1042/2014, under Section 420/120 B IPC dated 02.11.2014 at Police Station, Alipur, Delhi. It was further informed that the Controlling Authority was informed in this matter and the dossier of the applicant was returned to the Services Department on 08.02.2021.5 OA No. 1825/2022
2.10 At no point of time, either in response to the representations or during the hearing before the Hon‟ble High Court of Delhi or even before this Tribunal, the respondents never stated that the candidature of the applicant has been rejected, which shows that the respondents have acted malafidely, contemptuously and have thus prayed fraud upon him. The result of the above conduct of the respondents is that they have antedated the above order dated 28.01.2021 with a view to deprive the applicant of his legitimate and constitutional right to work and to cover up their misdeeds.
Hence the OA.
3. In support of the claim of the applicant, the learned counsel for the applicant has relied upon a decision of the Hon‟ble High Court of Punjab and Haryana at Chandigarh in Mandeep Kaur v. Canara Bank and Another, CWP No.1827/2019, decided on 31.10.2022, where, in similar circumstances, the Hon‟ble High Court was pleased to allow the writ petition by quashing the impugned order/action of the respondents therein. The respondents were directed to issue appointment letter to the petitioner, effective from the date the candidate immediately lower to her in the merit of selection was appointed with all consequential benefits. 3.1 The learned counsel has further relied upon another decision of Hon‟ble High Court of Kerala at Ernakulam in K. 6 OA No. 1825/2022 Harindran Nair v. The State of Kerala & Ors., WP (C) No.30661 of 2015 (R) decided on 25.10.2017, where the Hon‟ble High Court of Kerala held that mere pendency of an FIR against a person would not be sufficient reason to assert that he is disqualified for being considered for public appointments.
3.2 Concluding his arguments, the learned counsel submitted that the above decisions of the Hon‟ble High Court of Punjab and Haryana and Hon‟ble High Court of Kerala are squarely applicable to the facts of the instant case and as such the OA may be allowed in terms of the above orders of the Hon‟ble High Court of Punjab & Haryana as also Hon‟ble High Court of Kerala.
4. On the other hand, the respondents have filed their reply thereby vehemently opposing the contentions of the applicant.
4.1 It has been submitted that the applicant was nominated for appointment to the post of Grade-IV/DASS, Junior Assistant Post Code 61/15 by the Services Department vide letter dated 21.10.2019. The offer of appointment was accepted by him vide letter dated 02.12.2019 and he also filled up the attestation form. While going through the attestation form it was noticed that the applicant has ticked 7 OA No. 1825/2022 marked as „Yes‟ on 5th page point no.13(1), a,b,c, which states that he was arrested, prosecuted and detained by the police. 4.2 The case was sent to Secretary of H&FW Deptt. and Deputy Secretary, Services for proving suitable advice in the matter. Further, as per the direction given by the Deputy Secretary, Services, the report of investigation was sought from Police Station, Alipur vide letter dated 24.09.2020. 4.3 The investigation report in case FIR No.1042/2014, under Section 420/120B IPC dated 02.11.2011 in respect of applicant was received vide no.2512/SHO/Alipur, Delhi dated 16.10.2020, according to which the applicant was arrested on the basis of the investigation and later released on bail and further investigation in the matter is still pending. 4.4 In view of the above, and as per the direction given by the Competent Authority of Lok Nayak Hospital, the candidature of the applicant was cancelled vide letter dated 28.01.2021 and his dossier was returned to the Services Department of Govt. of NCT of Delhi vide letter dated 08.02.2021. The applicant was informed of the same by providing copy of speaking order issued by the respondents vide orders dated 07.04.2022 and 28.04.2022. 4.5 It has been submitted that the applicant, undisputedly, was involved in a criminal case. The offer of appointment 8 OA No. 1825/2022 issued to him was subject to the terms and conditions attached with it and it also specifically contained a stipulation that pendency of any criminal case or conviction etc. would be taken as adverse against him and he will not be entitled to be appointed to the post of Grade-IV (DASS)/Junior Assistant. Therefore, the respondents have rightly denied appointment to the applicant in view of the aforesaid clause in the offer letter.
4.6 Learned counsel has further submitted that mere selection does not confer any right upon a candidate to be appointed. In any case, the selection was subject to the satisfactory report regarding character and antecedents on the part of the applicant. Hence, the respondents have rightly cancelled the offer of appointment to the applicant and that the OA is liable to be dismissed.
4.7 In support of his contention, learned counsel for the respondents has relied upon a decision of the Hon‟ble Supreme Court in Union of India and Ors. v. Methu Meda, Civil Appeal No.6238 of 2021 (arising out of SLP (C) No.23856 of 2014), decided on 06.10.2021.
5. We have heard learned counsel for the parties and gone through pleadings on record, including the case-laws relied upon by the learned counsel for the respective parties. 9 OA No. 1825/2022
6. Analysis 6.1 In Civil Appeal No. 3116 of 2022 - State of Rajasthan & Ors. vs. Chetan Jeff decided on 11.05.2022, the Hon‟ble Apex Court has held as under:-
"6.10 After reproducing and/or reconsidering para 38.5 of the decision in Avtar Singh (supra), in Abhijit Singh Pawar (supra), in para 13, this Court observed and held as under:
"13. In Avtar Singh [Avtar Singh v. Union of India, (2016) 8 SCC 471, though this Court was principally concerned with the question as to nondisclosure or wrong disclosure of information, it was observed in para 38.5 that even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate." 6.11 Recently, in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya, (2021) 10 SCC 136, this Court had an occasion to consider the submission on behalf of an employee whose services were terminated on the ground of filing a false declaration to the effect that neither a criminal case is pending against him nor has he been convicted by any Court of law, that subsequently he has been granted the benefit of Section 12 of the Probation of Offenders Act and therefore his services ought not to have been terminated. This Court has observed in paras 13 & 14 as under:
"13. Even otherwise, subsequently getting the benefit of Section 12 of the 1958 Act shall not be helpful to the respondent inasmuch as the question is about filing a false declaration on 14- 42015 that neither any criminal case is pending against him nor has he been convicted by any court of law, which was much prior to the order passed by the learned Sessions Court granting the benefit of Section 12 of the 1958 Act. As observed hereinabove, even in case of subsequent acquittal, the employee once made a false declaration and/or suppressed the material fact of pending criminal case shall not be entitled to an appointment as a matter of right.10 OA No. 1825/2022
14. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment i.e. while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST.
Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."
7. Applying the law laid down by this Court in the aforesaid cases, it cannot be said that the authority committed any error in rejecting the candidature of the original writ petitioner for the post of constable in the instant case."
6.2 Mandeep Kaur's decision (supra) relied upon by the applicant is inapplicable in the facts of the present case in as much as in the said decision, the Court had observed as under:
"...... Undisputedly, there was no FIR or criminal case registered or pending against the petitioner when she applied for the post of Probationary Officer and when she participated in the process. It is only during the process of the selection that an FIR came into being. The registration of the FIR was also disclosed by the petitioner to the respondents on the first available opportunity. Therefore, it is not even the case of the respondents that the petitioner had 11 OA No. 1825/2022 concealed the registration of pendency of a criminal case against her. Moreover, the case already stands quashed by the order of this Court. Hence, there is absolutely no criminal case pending against the petitioner as on the date when the appointment is declined to the petitioner."
6.3 However, as admitted by the applicant in the pleadings himself in para 5.12 that "As a matter of fact, the applicant is not named in the FIR referred to by the respondents in the impugned Order dated 07.04.2022. Further, the applicant was arrested 12.11.2014 and produced before the Hon'ble Court at Rohini, Delhi on 15.11.2014 and was released on interim bail on 15.11.2014, on regular bail without any further arrest or being sent of jail. Therefore, prima facie no case was found against the applicant by the concerned court. However, till date, no charge sheet has been filed against the applicant in so much as the applicant has not received any summon from any court. Mere pendency of investigation is no ground to reject the candidature of the applicant and no rules mandate this." 6.4 Furthermore, the offer of appointment dated 25.11.2019, whereby the applicant was asked to indicate his acceptance within 30 days after going through the appointment letter in terms and conditions mentioned. Relevant para is reproduced hereunder:-
"His appointment is subject to the following terms and conditions:
1. The appointment will be made on probation for a period of two years subject to verification of candidates 12 OA No. 1825/2022 eligibility in all respect like educational qualification, category status and date of birth as furnished in the application. The appointment may be terminated at an time by one months‟ notice given by either side viz. the appointee or the Appointing Authority, without assigning any reason thereof.
2. The appointment will be subject to medical fitness and verification of character and antecedents and verification of caste certificates.
xxx xxx xxx
7. Other condition of the service will be governed by the relevant rules and regulation in force from time to time." 6.5 It is not disputed that the applicant was arrested and booked under case of FIR No.1042/2014, under Section 420/120 IPC dated 02.11.2014 at Police Station Alipur, Delhi. Further, while going through the attestation form, it was noticed that Sh. Subodh Gautam had ticked marked as "Yes" on 5th page point no.13 (1) a,b,c which states that he was arrested, prosecuted and detained by the police. The case was sent to Secretary of H&FW Deptt. and Deputy Secretary Services for providing the suitable advice/direction in the said matter. Further, as per the direction given by Deputy Secretary Services, the report of investigation was sought from Police Station, Alipur vide Office letter dated 24.09.2020. The investigation report in case of FIR No.1042/2014, under Section 420/120B IPC dated 02.11.2014 in respect of Shri Subodh Gautam was received vide no.2512/SHO/PS/Alipur, Delhi dated 16.10.2020 from Sh. Sandeep Kumar, PS Alipur, Delhi which states that 13 OA No. 1825/2022 Sh. Subodh Gautam was arrested on the basis of investigation and later released on bail, further investigation of the case is still pending.
7. Conclusion:
7.1 In view of the aforesaid discussions, it is clear that applicant was involved in a criminal case which he has concealed from the respondents. The offer of appointment issued to him was subject to the terms and conditions attached with it and it also specifically contained a stipulation that pendency of any criminal case or conviction etc. would be taken as adverse against him and he will not be entitled to be appointed to the post of Grade-IV (DASS)/Junior Assistant. Once he has concealed the relevant information as to his involvement in the criminal case, registration of FIR and released on bail, we are of the considered view that the respondents have rightly denied appointment to the applicant in view of the aforesaid clause in the offer letter.
Furthermore, mere selection does not confer any right upon a candidate to be appointed. In any case, the selection was subject to the satisfactory report regarding character and antecedents on the part of the applicant. We, therefore, do not find any fault in the impugned order dated 07.04.2022 whereby the candidature of the applicant has been cancelled 14 OA No. 1825/2022 in view of his involvement in criminal case and registration of FIR etc. 7.2 OA, therefore, fails and is accordingly dismissed.
8. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) „SD‟