HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 11403 of 2009
Dr. Ashutosh Sharma
- V/s -
School of Planning and Architecture,
Bhopal and others.
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Ajay Mishra, Senior Advocate, with Shri
H.K. Upadhyay for the petitioner.
Shri R.N. Singh, Senior Advocate, with Shri Mrigendra
Singh and Shri Arpan Pawar for the respondents.
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Whether approved for reporting: Yes / No.
ORDER
06/10/2010
Challenging the orders – Annexure P/15 and P/17 issued by
respondent No.1 on 21.10.09 and 23.10.09 respectively, withdrawing the
offer of appointment issued to the petitioner on the post of Professor in
the School of Architecture, Bhopal, petitioner has filed this writ petition.
2- Petitioner claims to be a duly qualified person and working
as a Professor in the Department of Architecture and Planning, in
Maulana Azad National Institute of Technology, Bhopal (hereinafter
referred to as ‘MANIT’). It is stated that he has worked in this Institute
for the last twenty years. It is further the case of the petitioner that for
the purpose of setting up an Autonomous School of Higher Education in
the Faculty of Planning and Agriculture in the State of Madhya Pradesh,
Government of India established a School of Architecture – respondent
No.1, in the State of MP, with its Headquarter at Bhopal in the form of a
Society registered under the M.P. Societies Registrikaran Adhiniyam,
1973. That is how, respondent No.1 came into existence by virtue of the
Registration made vide Annexure P/1 on 7.10.08. It is stated that both –
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MANIT and the School of Architecture and Planning, Bhopal, are
managed and controlled by the Government of India. Vide order-dated
1.8.08 – Annexure P/2, Government of India approved creation of
various faculty and non-faculty posts in the School of Architecture,
Bhopal. One of the posts so created was a post of Professor in the pay
scale 16400-450-22400. The essential qualification and other conditions
were also prescribed and accordingly an advertisement – Annexure P/3
was issued on 3.3.09, calling for applications from deserving candidates
for appointment to the said post i.e… Professor of Architecture.
Petitioner, who was also qualified and was eligible for appointment
submitted his candidature, the same was accepted and vide
communication dated 29.6.09 – Annexure P/4 he was called to
participate in the process of selection and interview. Thereafter, vide
communication dated 2.7.09 – Annexure P/5, petitioner was informed by
the Director of the School – respondent No.1, that the Selection
Committee having recommended his appointment and after due approval
of the Chairman and the Board of Governors, the petitioner has been
selected for appointment on the post of Professor in Architecture in the
pre-revised pay scale of 16400-450-22400. Various other conditions
were stipulated in the said offer. According to the petitioner, he accepted
the offer and vide communication – Annexure P/6 on 2.7.09, informed
respondent No.1 that he will apply to the Director of his Institute,
namely MANIT, for relieving him for joining in the respondent No.1’s
school. Thereafter, vide Annexure P/7 on 3.7.09 petitioner applied to
MANIT for relieving him so that he can join on the post of Professor in
the School of Planning and Architecture, Bhopal. Thereafter, the
Incharge Registrar of MANIT, Bhopal sought various documents and
information from the petitioner, vide Annexure P/8, petitioner clarified
the position and ultimately when the petitioner was not given the
relieving order, it is stated that vide Annexure P/9 on 7.7.09 petitioner
sought for his relieving and in the alternative submitted his offer for
Voluntary Retirement in accordance to the provisions of Rule 48-A of
the Central Civil Services Pension Rules, 1972 (hereinafter referred to as
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‘Rules of 1972’), which is applicable to him and informed the MANIT
authorities that he would stand retired after completing a period of three
months i.e… on 7.10.09. It is stated that in the application petitioner also
sought for relaxing the statutory notice period of three months to enable
him to join the School of Planning and Architecture immediately by
virtue of the powers conferred on the competent authority under Rule 48
of the Rules of 1972. Annexure P/10 is another communication made by
the petitioner on 15.7.09 seeking his relieving. According to the
petitioner despite his best efforts and submitting application for
Voluntary Retirement, neither was the Management of MANIT relieving
the petitioner for joining duties nor were they accepting his offer for
Voluntary Retirement. In the meanwhile, the notice period for retirement
was to expire on 7.10.09, petitioner suffered dengue fever, and was
admitted to the Hospital from where he was discharged on 21.10.09. He
immediately approached the School of respondent No.1 on 21.10.09
alongwith his joining letter and Attestation Form – Annexure P/14.
Instead of permitting the petitioner to join in pursuance to the offer
submitted by him on 21.10.09, he was not permitted to join, instead
communication dated 21.10.09 was issued to him and it was intimated
that as he has not submitted a proper relieving from MANIT, he cannot
be permitted to join. Petitioner pleaded for extension and finally when he
was not receiving cooperation he submitted an application – Annexure
P/16 on 21.10.09 and in an arbitrary and illegal manner at 5.30 on
23.11.09, the impugned order-dated 23.10.09 – Annexure P/17 was
issued, which was received by the petitioner on 26.10.09. He submitted a
representation on 26.10.09 vide Annexure P/16 and sought for
reconsideration of the matter. Thereafter, various communications took
place and finally when nothing was done, petitioner filed this writ
petition.
3- Shri Ajay Mishra, learned Senior Advocate appearing for
the petitioner, taking me through the voluminous documents filed in the
writ petition so also the rejoinder and by taking me through the
provisions of section 48(1), 48-A and the proviso to sub-rule (2) of Rule
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48-A, argued that when the application for voluntary retirement
submitted by the petitioner was not accepted within the period of three
months, then by operation of law and by virtue of the statutory
provision, as is contained in the proviso to sub-rule (2) to Rule 48-A,
petitioner stood retired from the service of MANIT on 7.10.09 and after
7.10.09 it was not at all necessary for the petitioner to submit any
relieving or any further letter or NOC from the Management of MANIT.
It is stated that he is deemed to have retired from the service of MANIT
on 7.10.09 by operation of law and, therefore, the insistence by
respondent No.1 in seeking a proper relieving letter from the
Management of MANIT was totally uncalled for and not at all
necessary, after 7.10.2009.
4- It was emphasized by learned Senior Advocate that the
relieving and other documents of relinquishing service by the petitioner
from MANIT would be necessary only if he was an employee of
MANIT when he reported for joining. It is stated that on 21.10.09 when
the petitioner reported to respondent No.1 for joining and submitted his
joining vide Annexure P/14, he was no more an employee of MANIT
and, therefore, the action of the respondents in insisting upon submitting
a proper relieving letter is totally uncalled for. It was emphasized that by
virtue of operation of the statutory provision as contemplated in the
Rules of 1972, petitioner stood automatically relieved from the service
of MANIT with effect from 7.10.09 and, therefore, it was not necessary
for him to submit any relieving order on 21.10.09 when he appeared
alongwith his joining – Annexure P/14. Accordingly, it was the
contention of the petitioner that he is deemed to have retired from
services of MANIT on 7.10.09 and now the respondents cannot insist
upon submission of any document pertaining to his relieving. That apart,
Shri Ajay Mishra, learned Senior Advocate, took me through various
documents available on record and tried to emphasize that in this case
the petitioner is being refused permission to join on the selected post of
Professor of Architecture by the School of Planning and Architecture,
Bhopal only on the ground that while petitioner was in service of
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MANIT, Bhopal certain enquiries and criminal case were pending
against him. Taking me through the documents and material in this
regard filed by the petitioner alongwith the petition and the rejoinder,
Shri Ajay Mishra, learned Senior Advocate, tried to emphasize that the
allegations in this regard levelled against the petitioner are all false,
baseless and are unsustainable. It is argued by him that in the criminal
case registered prima facie finding recorded is that they are false and,
therefore, in a matter pending before this Court under section 482 CrPC,
the proceedings have been stayed. That apart, it is stated that the
allegations levelled against the petitioner in the return filed by
respondents 1 and 2 are incorrect, false and on the basis of the same
joining of the petitioner cannot be denied. Even though Shri Ajay
Mishra, learned Senior Advocate, during the course of hearing has
referred to various documents in this regard, the same will be considered
and referred to, if necessary in this order, as and when they are required.
5- In sum and substance, the contentions advanced by Shri
Ajay Mishra, learned Senior Advocate, is two folded:
(i) His first contention was to the effect that once the
retirement of the petitioner came into force with
effect from 7.10.09 and he stood retired from the
services of MANIT by virtue of the statutory
deeming provision contemplated under Rule 48-A of
the Rules of 1972, there was no necessity for
submitting any relieving letter from the Management
of MANIT, and the action of the respondents in
refusing joining to the petitioner only on the ground
that he has not been properly relieved, is
unsustainable.
(ii) His second limb of argument is that the petitioner
having retired from the services of MANIT on
7.10.09 without any enquiry being conducted against
him, without any punishment being imposed and
when the allegations put forth by respondents 1 and 2
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against the petitioner with regard to his services in
MANIT are false and fabricated and on the aforesaid
grounds the Management of MANIT cannot refuse
joining to the petitioner
6- In support of his contention, Shri Ajay Mishra, learned
Senior Advocate, has placed reliance on the following judgments: R.L.
Arora Vs. The State of UP and others, AIR 1962 SC 764; M/s
Hochtief Gammon Vs. State of Orissa and others, AIR 1975 SC
2226; Commissioner of Income-tax, Bombay and others Vs.
Mahindra and Mahindra Limited and others, AIR 1984 SC 1182;
Rajbir Singh Gill Vs. State of Punjab and another 1999 (7) SLR 422;
and, Tekchand Vs. Dile Ram, 2001(3) SCC 290.
7- Referring to the aforesaid judgments and the deemed
retirement of the petitioner after expiry of the period of three months and
the decision of the Board of Governors of respondent No.1’s Institute as
contained in Annexure R/7 dated 7.10.09, with regard to treating the
petitioner to be voluntarily retired, it is argued that now respondent No.1
cannot insist upon submission of any joining report. Further reference is
also made to the judgment: Mohinder Singh Gill and another Vs. The
Chief Election Commissioner, New Delhi and others, AIR 1978 SC
851, to contend that in the original communication made to the petitioner
vide Annexures P/15 and P/16, respondents have only stated that the
petitioner did not submit a proper relieving from the Management of
MANIT and, therefore, he cannot be permitted to join. Now, in this
petition respondent No.1 is substantiating its contention by giving
various other reasons with regard to conduct of the petitioner while
working in MANIT. It is argued that a bad order issued vide Annexures
P/15 and P/17 cannot be made good by substituting reasons now in this
petition, which is by way of an after thought. Accordingly, learned
Senior Advocate submits that the action of the respondents is
unsustainable and is, therefore, liable to be rejected.
8- Shri R.N. Singh, learned Senior Advocate, appearing for the
respondents, took me through the documents filed by the petitioner, the
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respondents, the pleadings of respondent No.1, particularly from
paragraphs 10 to 17 and by referring to the communications made by the
then Director of MANIT on 21.11.08, forwarding the application of the
petitioner, submitted that initially one Shri K.S. Pandey was the Director
of MANIT. When the advertisement was issued and the petitioner
submitted his application, the same was forwarded by the Management
of MANIT through this Director vide Annexure R/2, filed by respondent
No.1, on 21.11.08. In the said communication while forwarding the
application of the petitioner, the then Director Shri K.S. Pandey
intimated to the Director, School of Planning and Architecture that in
case the petitioner is selected, he will be relieved for joining the
respondent No.1’s Institute on deputation as per the Institute’s norms.
9- Shri R.N. Singh, learned Senior Advocate, referring to the
statutory provisions with regard to relieving and joining of an employee
from the service of MANIT i.e… Statute No.24 of the NITP – Annexure
R-3/1 and by referring to the proforma contained in Schedule D to
Statute 24(7), pertaining to forwarding of application for employment,
emphasized that the application of the petitioner apart from being
forwarded to be appointed on deputation did not meet the requirement of
the statutory provisions as indicated hereinabove, in as much as
comments with regard to conduct and working of the petitioner in
MANIT, which was required to be disclosed alongwith the application as
per the statutory Schedule D, was not intimated. Learned Senior
Advocate submitted that the forwarding itself was contrary to the
statutory provisions and illegal and various factors, which should have
been brought to the notice of respondent No.1 were not brought on
record. It was argued by Shri R.N. Singh, learned Senior Advocate, that
even if it is assumed that by operation of the provisions of Rule 43-A of
the Rules of 1972, the voluntary retirement of the petitioner is accepted,
even then if the past antecedents and the conduct of the petitioner with
his previous employer was not satisfactory, respondent No.1 can refuse
joining to the petitioner. It was emphasized by him that insistence on
submitting a joining or proper relieving letter from the previous
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employer was for the purpose of ascertaining the previous conduct of the
petitioner and to ensure that he had an unblemished service with the
previous employer and is fit to join duties with the new employer. By
taking me through the overwhelming documents available on record, a
report pertaining to enquiry conducted by one Mr. M.R. Buch, a retired
IAS Officer of the State, the allegations found proved against the
petitioner and various other factors with regard to registration of a
criminal case against the petitioner, conduct of enquiry, writ petition
filed by him challenging the action of MANIT, in finding him to be
illegally appointed and reverting him and the criminal cases pending
against him, argued that in the attestation form submitted by the
petitioner vide Annexure R/13, petitioner did not disclose all these
factors and, therefore, he was rightly denied joining by the Management
of the School of Planning and Architecture, Bhopal.
10- Shri R.N. Singh, learned Senior Advocate, referring to
various letters in this regard, available on record particularly the
communication made by the Director of MANIT to the School of
Planning and Architecture – respondent No.1, as contained in Annexure
R/6 dated 1.9.09, submitted that the then Director Dr. K.S. Pandey had
illegally forwarded the application of the petitioner vide Annexure R/2,
on 21.11.08, without disclosing the fact about pendency of large number
of cases against him and the particulars as are contained in Annexure
R/6, and pointed out that in two enquiries conducted into the matter –
one by Shri M.N. Buch and another on an enquiry headed by Shri S.M.
Shukla, various irregularities committed by the petitioner came into
light. Referring to the enquiry reports filed in this regard as contained in
Annexure R-3/15, Shri R.N. Singh, learned Senior Advocate, tried to
emphasize that due to the aforesaid serious allegations, the petitioner is
not entitled to seek appointment with respondent No.1 and respondent
No.1 can refuse appointment to the petitioner. In this regard, he referred
to the averments made by respondent No.1 in paragraphs 11, 12, 13 and
14 of the reply, which reads as under:
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“11. That on 21.10.2009, the petitioner in person appeared
before the Respondent No.2 and submitted letter dated
21.10.2009 alongwith the attestation form, informing that
the petitioner has applied for voluntary retirement in the
parent institute on 7.7.2009 and as per the rules he stood
retired w.e.f 7.10.2009. The petitioner also submitted that as
he was suffering from acute dengue fever, he could not
submit the attestation form on 9.10.2009. Copy of the letter
dated 21.10.2009 alongwith the attestation form submitted
by the petitioner is annexed herewith as Annexure R/9.
12. It is pertinent to mention here that it is vide letter
dated 21.10.2009, the answering respondent for the first
time were acknowledged by the petitioner that he is joining
the institute as permanent faculty member, however, the
forwarding letter of the Director, MANIT and further
communication with the petitioner before the letter dated
21.10.2009 written by the petitioner, clearly depicts a
picture that the petitioner was supposed to join the institute
on deputation after submitting a letter of relieving from the
parent institute as it has been done by the institute in case of
Dr. Manmohan Kapshe and various other employees.
Needless to emphasis, there was no reason with the
answering respondent to give a differential treatment to the
petitioner, particularly when the offer of appointment to the
petitioner itself elapsed. It is worthwhile to mention here
that the petitioner has submitted that he was suffering from
acute dengue fever and was discharged from the hospital on
22.10.2009, however, prior to his discharge the petitioner
appeared before the Respondent No.2 on 21.10.2009 itself,
thus the character of the petitioner is clearly ascertainable
from his misdeeds. Copy of the relieving letter dated
12.10.2009 and the appointment letter dated 20.10.2009 of
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Dr. Manmohan Kapshe are annexed herewith as Annexure
R/10 and R/11.
13. That before the answering respondent could have
scrutinized the application and the attestation form, the
petitioner again appeared in person before the Respondent
No.2 on 21.10.2009 itself in the evening hours and
requested in writing to withdraw and joining letter with a
request to treat them cancelled. Resultantly, the respondent
returned the application and other original documents of the
petitioner on 21.10.2009 itself. However, the aforesaid fact
has deliberately been suppressed by the petitioner for the
reasons best known to him. Copy of the letter dated
21.10.2009 written by the petitioner is annexed herewith as
Annexure R/12.
14. That, bare perusal of the attestation form submitted
by the petitioner (filed alongwith Annexure R/13) will
reveal that the petitioner has suppressed the material fact in
the attestation form that the petitioner is in litigation with
his parent institute and as such the appointment of the
petitioner as Assistant Professor and promotion as Professor
in the MANIT, Bhopal is subject matter of Writ Petition
No.7382/2008 and Writ Petition No.8573/2008 pending
adjudication before this Hon’ble Court and decision as such
in any petition will disqualify the petitioner from
appointment as Professor in the establishment of the
answering respondent. Copy of the attestation form
submitted by the petitioner is annexed herewith as
Annexure R/13.”
(Emphasis supplied)
11- It was further argued by Shri R.N. Singh, learned Senior
Advocate, that as far as respondent No.1 is concerned, before appointing
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a person, respondent No.1 is entitled to verify the antecedents of the
person to be appointed and when the overwhelming material that came
against the petitioner indicated his unsuitableness, respondents have
taken a decision to withdraw the offer of appointment. Referring to
Annexure P/16 itself filed by the petitioner, withdrawing his joining,
submitted on 21.10.09, learned Senior Advocate, argued that the
petitioner himself having withdrawn the original joining alongwith all
original documents, petitioner is now estopped from seeking permission
to join with respondent No.1 and challenge the action of respondent
No.1 in withdrawing the offer of appointment.
12- Referring to the order passed by this Court on 13.1.2009,
Shri R.N. Singh, learned Senior Advocate, submitted that initially when
this writ petition was filed, only respondent No.1 – The School of
Planning and Architecture, was impleaded as a party and the
Management of MANIT was not impleaded as a party. However, after
the hearing on 13.1.2010, this Court wanted to consider three aspects of
the matter, namely: the manner in which the application of the petitioner
was forwarded by MANIT to respondent No.1; the manner in which his
application for voluntary retirement was dealt with by MANIT; and, the
particulars with regard to cases, if any, pending against the petitioner
while he was working in MANIT. To get clarification about these three
questions, it is stated by Shri R.N. Singh, learned Senior Advocate, that
on 13.1.2010, this Court directed the petitioner to implead MANIT –
respondent No.2, as a party and that is how at the instance of this Court,
petitioner impleaded MANIT as a party and from the reply filed by
MANIT, it is seen that they have clearly pointed out that the application
of the petitioner – Annexure R/2 dated 21.11.08 was forwarded without
following the procedure contemplated under Statute 24 and Shri K.S.
Pandey having suppressed material facts to help the petitioner and the
petitioner also having suppressed these facts while submitting the
attestation form, it is stated that the petitioner cannot claim any benefit.
It is also pointed out by Shri R.N. Singh that alongwith the petition for
appointment to various other post, applications of certain other
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employees were also forwarded for appointment on deputation. By
bringing on record the forwarding memorandum with regard to one Dr.
Manohar Kapse and the relieving order issued in his case, permitting
him to join duties in the School of Planning and Architecture on
deputation vide Annexures R/10 and R/11, Shri R.N. Singh emphasized
that respondent No.1 are right in denying appointment to the petitioner
on the ground that his antecedents with the previous employer was not
satisfactory, he has suppressed material facts from the Management of
respondent No.1, while submitting his application, getting it forwarded
alongwith Shri Manohar Kapse, and finally while submitting the
attestation form as is evident from Annexure R/13. Referring to
Annexure R/13, the attestation form filed by the petitioner and the
warnings contained therein with regard to suppression of material facts,
arrest of the petitioner in a criminal case, pendency of the criminal case
and various other factors, Shri R.N. Singh emphasized that no relief can
be granted to the petitioner.
13- In support of his contention to the effect that without
producing a discharge certificate, an employee cannot be permitted to
join services, Shri R.N. Singh, learned Senior Advocate, invited my
attention to the principles laid down in the cases of: Kendriya
Vidyalaya Sangathan and others Vs. Ram Ratan Yadav, 2003(3)
SCC 432; A.P. Public Service Commission Vs. Koneti
Venkateswarulu and others, 2005(7) SCC 177. That apart, learned
Senior Advocate also invited my attention to a judgment of the Supreme
Court in the case of – Central Provident Fund Commissioner and
others Vs. Ashok Dubey and others, 1992 (2) SCC 196, to justify the
action of the respondents in not permitting the petitioner to join duties.
Accordingly, Shri R.N. Singh, learned Senior Advocate, tried to justify
the action of the respondents and submitted that the petition is liable to
be dismissed.
14- By way of a rejoinder and arguments Shri Ajay Mishra,
learned Senior Advocate, again referred to various documents available
on record, particularly the reports of the enquiry conducted, the manner
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in which the enquiries were conducted, the criminal case filed against
the petitioner, the facts that these are filed only to victimize and harass
the petitioner, they are not correct, tried to emphasize that the allegations
levelled against the petitioner and the material submitted by respondent
No.2 are not correct and on the basis of the same petitioner cannot be
denied joining.
15- It was further argued by Shri Ajay Mishra, learned Senior
Advocate, that the respondents while considering the matter after the
communication was made by the New Director – Shri R.P. Singh, with
regard to the antecedents of the petitioner, an agenda was prepared and
the entire matter was placed for considering the additional agenda –
Annexure R/7, in the meeting of Board of Directors of School of
Planning and Architecture, Bhopal, which was held on 17.7.09. In the
said meeting, even though the Board was aware of the complaints
against the petitioner, but did not take any action, instead extended the
time to submit the joining after following the provisions of the CCA
Rules. In view of the above, it was argued by learned Senior Advocate
that the Board of Directors in this meeting having already ignored and
condoned the earlier conduct of the petitioner, now on the same ground
appointment cannot be refused to the petitioner. That apart, he submitted
that the provisions of Statute 24(7) and Schedule D will not apply as it
was brought into force after the forwarding of petitioner’s application
was done, vide Annexure R/2 on 21.11.08. Accordingly, on the aforesaid
ground Shri Ajay Mishra, learned Senior Advocate, seeks for
interference into the matter.
16- I have heard learned counsel for the parties at length and
perused the records.
17- As far as the question with regard to the deemed retirement
of the petitioner from the services of MANIT with effect from 7.10.09
and the implication of the proviso to sub-rule (2) of Rule 43-A is
concerned, there is no dispute in accepting the proposition put forth by
Shri Ajay Mishra, learned Senior Advocate for the petitioner, to the
effect that the petitioner stood relieved on 7.10.09 and on that date he
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ceased to be an employee of MANIT. However, the question that
requires consideration by this Court is that even on such relinquishment
of appointment by the petitioner with his previous employer, can the
prospective employer still insist upon producing a relieving order; what
is the relevancy of such a relieving order; and, whether the act of
respondent No.1 in withdrawing the offer of appointment in the facts and
circumstances is warranted or not?
18- During the course of hearing of this writ petition, Shri Ajay
Mishra, learned Senior Advocate, took me through the documents
available on record and had tried to emphasize that the allegations
levelled against the petitioner are not correct and on the basis of the
same he cannot refuse permission to join. That being so, it is thought
appropriate at this stage to refer to these allegations as they may have
some bearing with regard to the act of respondent No.1.
19- It is an admitted fact that when the application of the
petitioner was forwarded by Dr. K.S. Pandey vide Annexure R/2, on
21.11.08, it was so mentioned by him in the forwarding memo “In case
he is selected, he will be relieved on deputation as per Institute’s norms”.
However, while forwarding the application in this manner, the
requirement of National Institute of Technology Act, 2007 and the
provisions of Statute 24(7), contained in Schedule D i.e… Annexure R-
3/1 is not followed. This Statutory provision contemplates that an
application of an employee whose conduct is under investigation may be
forwarded for employment. However, it has to be done with a brief
comment on the nature of allegations and with a ‘note’ that he would not
be relieved if he is placed under suspension or charge-sheeted. The
forwarding note – Annexure R/2 submitted in the case of the petitioner
was not in accordance to the statutory requirement. As far as
applicability of Statute 24(7) and non-communication of the past
antecedents of the petitioner by Shri K.S. Pandey is concerned, the
argument of the respondents in this regard cannot be accepted, for the
simple reason that the statutory provision came into force after the
application of the petitioner was forwarded by Shri K.S. Pandey on
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21.11.08 and, therefore, on the ground that Shri K.S. Pandey did not
follow the statutory provisions of Statute 24(7), no fault can be found in
the forwarding of the petitioner’s application by Shri K.S. Pandey.
However, as the forwarding was with regard to relieving the petitioner
on deputation in case of his appointment, Shri K.S. Pandey should have
informed the management of respondent No.1 about the pendency of the
various enquiries against the petitioner. However, records indicate that
against Shri K.S. Pandey also serious allegations were levelled as is
evident from Annexure R-3/2 onwards and finally the documents filed
by respondent No.2 indicates that the services of Shri K.S. Pandey have
been terminated.
20- After termination of service of Shri K.S. Pandey when a
new Director – Shri R.P. Singh took charge and when the petitioner was
informed about his offer of appointment, he applied to the Management
of MANIT to relieve him for joining on the offered post. When these
facts were brought on record, the Director concerned found that the
application of the petitioner for appointment on the post of Professor or
Architecture in respondent No.1’s Institute was forwarded by Shri K.S.
Pandey ignoring the norms as contained in Statute 24(7), Schedule D
and, therefore, the said Director vide Annexure R/6 on 1.9.09 informed
respondent No.1 about the enquiries being conducted against the
petitioner, the reports submitted by Shri M.N. Buch, Shri S.M. Shukla –
the allegations against the petitioner as are contained in this
communication. The allegation pertaining to the irregular appointment of
the petitioner himself contrary to the Rules and his reversion to the post
of Assistant Professor and the challenge made to the same and the writ
petitions in this regard, pending before this Court. Further irregularities
committed in the matter of revision of pay scale, misuse of the office of
the Administrative Dean by the petitioner, illegal benefits conferred to
his brother by appointing him in MANIT, registration of criminal case
against the petitioner, his arrest by the police authorities on 7.1.09,
registration of a case against him for offence under sections 507, 120,
420, 467, 469, 471/34 of the IPC read with various provisions of the
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Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989; his release on bail on 15.1.2009, filing of the challan and the
application filed by him for quashing of the proceedings. The Director
brought to the notice of respondent No.1 all these factors and after these
factors were brought to the notice on 9.9.09, the Management of
Respondent No.1 directed the petitioner that he should submit his joining
alongwith an appropriate relieving letter on or before 23.10.09 otherwise
the offer would be cancelled.
21- If the impugned orders – Annexures P/15 and P/17 are
taken note of, it would be seen that in Annexure P/15 dated 21.10.09,
petitioner was informed that he has not submitted his joining alongwith
the relieving letter from the present employer and in the board meeting
of the School of Planning and Architecture held on 17.7.09, it was
resolved that the joining can be permitted only if the CCA Rules are
violated. Even though respondents took note of the fact that the
petitioner is deemed to have retired, but on 21.10.09 and 23.10.09 they
were still insisting upon submitting a proper relieving from the previous
employer. Petitioner wants this Court to hold that the allegations levelled
against the petitioner by the Management of MANIT are incorrect and
false and as respondent No.1 has refused joining to the petitioner only
because he did not submit a proper joining and as the joining was not
necessary now, in view of the automatic deemed retirement of the
petitioner by operation of law with effect from 7.10.09, the action is
liable to be quashed. As far as the contentions canvassed by Shri Ajay
Mishra, learned Senior Advocate, with regard to condonation of the
conduct of the petitioner by the Board of Directors of the School of
Planning and Architecture, in its meeting held on 17.7.09 is concerned,
this Court is unable to accept the aforesaid contention of the learned
Senior Advocate. Even though the Board in its meeting, held on 17.7.09,
directed for extending the time for joining, the Board still insisted upon a
proper relieving of the petitioner from MANIT. This was because of two
reasons: the first being that the application of the petitioner was
forwarded with a condition that he shall join the appointed post on
17
deputation; and, the second was because of the reason that the petitioner
would be permitted to join only if he is properly relieved, meaning
thereby that the Management of School of Planning and Architecture
were willing to permit the petitioner to join duties provided he is
relieved by the Management of MANIT, by exonerating him of all the
charges levelled against him and issuing him a proper relieving letter, or
on deputation as is done in the case of Dr. Manmohan Kapshe. The
decision of the Board in its meeting held on 17.7.09 is to the effect that
petitioner should join alongwith a proper relieving letter meaning
thereby that the Management of School of Planning and Architecture has
no objection if the petitioner is relieved by the Management of MANIT,
if he is exonerated of the allegations levelled against him and is given a
clean chit or is sent on deputation. The insistence upon petitioner’s
joining alongwith a relieving letter is only to ensure that the MANIT
Management gives a clean chit to the petitioner, after exonerating him of
the charges pending against him in their Institute. Merely because the
Board of Directors in its meeting held on 17.7.09 did not cancel the
appointment of the petitioner or withdrew it after coming to know about
complaints against the petitioner, it cannot be construed that the Board
had condoned all the past acts of the petitioner while in employment
with MANIT. The Board seems to be of the view that they can permit
the petitioner and others to join, if they are properly relieved and come
with a properly relieving order or a NOC from the erstwhile employer.
Accordingly, the contention of Shri Ajay Mishra, learned Senior
Advocate, to the effect that the Board of Directors of the School of
Planning and Architecture, had exonerated the petitioner of his past
conduct cannot be accepted.
22- Under normal circumstances when an employment is
offered to a person, he is directed to submit a proper relieving from his
previous employer in order to ensure that his lien on the post held with
the previous employer is terminated and he is appointed after
relinquishing his previous employment or he is on deputation. That
apart, an employee who was already in service with one employer and
18
when he seeks appointment with a new employer, the new employer has
a right to ensure that the person being appointed has an unblemished
service record, his employment with the previous employer was clean
and he is a fit person to be appointed. An employer before appointing a
person to a post should have confidence in the employee and if this
confidence is not existing, the employer has a right to refuse
appointment to such a person, whose employment with the previous
employer is a tainted one. In this regard, it may be appropriate to take
note of certain observations and principles laid down by the Supreme
Court in the case of Dr. H.Mukherjee Vs. Union of India and others,
1994 (Supp) 1 SCC 250. In this case, a candidate selected for
appointment by UPSC and who was issued with an offer of appointment,
with a stipulation for joining within a particular period of time, was
refused joining when subsequently it came to the notice of the employer
that a CBI Enquiry was initiated against him. In this case also, the Union
of India, the employer, was not aware of the pendency of the enquiry
against Dr. H. Mukherjee, the person concerned, and when it came to
its knowledge, it withdrew the offer of appointment. After considering
the factual aspects of the matter, in paragraph 4, the question for
determination was laid down by the Supreme Court in the following
manner:
“4. In view of the above, the short question which arises
for consideration is whether the Tribunal was justified in
taking the view that events subsequent to the
recommendation made by the UPSC could not be taken into
consideration for deciding whether or not the candidate
recommended was suitable for appointment and whether the
omission on the part of the ACC to state the reason for
departing from the recommendations of the UPSC was fatal
and vitiated the decision.”
(Emphasis supplied)
Thereafter, various judgments of the Supreme Court were
considered and after taking note of the provisions of Article 323 of the
19Constitution and the powers of the UPSC for making a recommendation
and the effect of such recommendation being rejected by the
Government, it has been held by the Supreme Court that in view of the
fact that a recommendation of the UPSC is not binding and by taking
into consideration developments subsequent to the selection,
appointment can be refused or rejected. In paragraph 8, the matter has
been so dealt with by the Supreme Court:
“8. …. There is nothing in that article or in the
rules to suggest that the Government cannot take into
consideration the developments subsequent to the selection
made by the UPSC. Such a view would not be in public
interest and may lead to serious complications if the
Government is enjoined to make the appointment
notwithstanding certain serious matters having come to its
notice subsequent to the recommendation made by the
Commission. Counsel for Respondent 1, however,
submitted that a line of demarcation must be drawn
somewhere because the Government cannot be allowed to
delay its decision till adverse circumstances appear against
the candidate recommended for appointment. He submitted
that this demarcation must coincide with the date on which
the recommendation is made by the Commission and at any
rate must be confined to a reasonable period subsequent
thereto. We are afraid no hard and fast line can be drawn in
this connection. Besides, in the instance case we do not find
as a fact that the Government has deliberately delayed its
decision. …..” (Emphasis supplied)Thereafter, taking note of certain judgments of the Supreme
Court in paragraph 9, with regard to the binding effect of Article 323 of
the Constitution with regard to advice of the UPSC. It was held by the
Supreme Court in paragraph 9:
20
“9. …. This decision is not an authority for the
proposition that the Government must make an order
disapproving the list along with the reasons therefore and
convey the same to the High Court or the Commission. All
that it says is that the Government must record its reasons
for the disapproval on the file and if its action is questioned
in court it must disclose the same to the court if called upon
to do so. That requirement has been satisfied in the present
case. The Tribunal, however, wrongly thought that
subsequent events could not be taken into consideration and
that is why it directed the ACC to reconsider its decision
without noticing the adverse entry as well as the contents of
the CBI Report. In fact to satisfy ourselves we perused the
file and found that the reason for disapproval was stated on
the file. The subsequent decision turned on its own facts as
the Court came to the conclusion that the material placed
before the Court did not justify Government’s refusal to
make the appointment. Therefore, neither of the two
decisions on which reliance is placed come to the rescue of
respondent 1. It seems well settled that the function of the
Public Service Commission being advisory, the
Government may for valid reasons to be recorded on the
file, disapprove of the advice or recommendation tendered
by the Commission, which decision can, if at all, be tested
on the limited ground of it being thoroughly arbitrary, mala
fide or capricious.”
(Emphasis supplied)
If the aforesaid judgment is scanned, it would be seen that if
the subsequent material brought to the notice of the Government
indicates that the employee is unsuitable for appointment, the offer of
appointment can be withdrawn.
21
23- Again, in the case of Union of India Vs. Rati Pal Saroj
and another, 1998(2) SCC 574, the employee concerned was offered
appointment in the IAS Cadre, but before he could join as Probationer, a
CBI case was registered against him with regard to abuse of official
position in the previous employment. In view of the above, the offer of
appointment was withdrawn. The withdrawal was challenged on
somewhat similar grounds and also on the ground of violation of
principles of natural justice and various other aspects. The matter was
considered by the Supreme Court in paragraph 11:
“11. In the present case looking to the facts and
circumstances it was not necessary to give a hearing to the
respondent. It is argued that the withdrawal of appointment
was on account of the FIR filed against the respondent and,
therefore, the respondent should have been heard and given
an opportunity to present his case before withdrawing his
appointment. Or his appointment should be kept in
abeyance till he is found guilty or acquitted. The earlier
correspondence, however, shows that the respondent was
unable to join as a probationer on the due date because he
was not being relieved from his post. The Central
Government thereafter learnt why the respondent was not
being relieved from his post. If thereafter it came to a
conclusion that the respondent was not a suitable person, or
that it was not possible to wait for a long period for the
respondent to join, it would be entitled to withdraw the
appointment. Indian Administrative Service is a premier
administrative service of the Central Government. All those
who are members of the Indian Administrative Service are
called upon to discharge heavy responsibilities which
require on the part of an incumbent to the post the highest
degree of probity, rectitude and an impeccable character. If
in the facts and circumstance of the present case the Central
Government decided that the respondent was unsuitable to
22be given a post in the Indian Administrative Service, the
question cannot be faulted. The impugned letter merely
withdraws the offer of appointment. It casts no stigma. So
long as the decision is taken bona fide on relevant facts and
in the interests of the Service it cannot be faulted.”
(Emphasis supplied)
In the aforesaid case also, looking to the nature of
appointment and the conduct of the person to be appointed, the Supreme
Court has held that the offer of appointment can be withdrawn. In the
present case also, somewhat similar scenario exist.
24- In the present case, petitioner’s appointment with
respondent No.1 is cancelled and the offer of appointment withdrawn
due to various factors, which came to the knowledge of respondent No.1,
as is evident from the narration of facts made hereinabove.
25- Contention of the petitioner is that respondents have
cancelled the offer of appointment only because petitioner did not
produce an appropriate relieving order from his previous employer –
respondent No.2. It is the case of the petitioner that a relieving order
from the previous employer is not necessary by virtue of the fact that
petitioner had tendered his voluntary retirement from his previous
employer in accordance to Rule 48(2) on 7.7.2009 and by operation of
law i.e… the proviso to sub-clause (2) of Rule 42-A, the resignation is
deem to have come into effect with affect from 7.10.2009, and once the
petitioner’s retirement comes into effect with affect from 7.10.2009,
there is no necessity for submitting a relieving order from his previous
employer, as the lien on the post held by the petitioner with the previous
employer i.e.. respondent No.2 has come to an end due to retirement
having come into force with effect from 7.10.2009.
26- As far as retirement coming into affect with effect from
7.10.2009 and petitioner’s contention that the lien to the post of the
previous employer comes to an end on that day is concerned, there is no
dispute in accepting the aforesaid proposition canvassed by learned
Senior Counsel Shri Ajay Mishra. However, when the question pertains
23
to appointment of a person to a particular post, the requirement of
seeking a proper relieving order from the previous employer, the purpose
and the intention behind the same has to be appreciated. Petitioner may
be right in contending that normally once his employment with the
previous employer comes to an end by virtue of his retirement and,
therefore, there is no question of relieving, but in a particular case, when
an employment is offered to a person by the employer – respondent No.1
in the present case, the new employer is entitled to verify the previous
antecedents of the person, who is being appointed and after being
satisfied about his service record with the previous employer, can take a
decision regarding his appointment. If the previous record of service of
the person concerned with his erstwhile employer is found to be tainted
or not free from doubt, the new employer may have reservations in the
matter and may not have confidence in appointing such a person. Having
confidence in a person to be appointed is of paramount importance for
entering into a contract of service and if the employer feels that the
person to be appointed is not beyond reasonable doubt or his career with
the previous employer is covered by a cloud of suspicious activities, is
tainted and is not in accordance to the conduct expected of a prudent
employee, the employer has an option to reject the candidature for
appointment of such a person. It is in the backdrop of these
circumstances that the question of insisting upon relieving, is to be
considered.
27- Even though during the course of hearing Shri R.N. Singh,
learned Senior Advocate, had referred to the attestation form submitted
by the petitioner and by placing reliance on the judgment rendered in the
case of Kendriya Vidyalaya Sangathan (supra) had argued that
petitioner has suppressed material facts while submitting the attestation
form, Shri Ajay Mishra, learned Senior Advocate, had refuted the
aforesaid and by referring to Annexure to the attestation form, had
submitted that the facts were disclosed. Now, in the light of the findings
recorded hereinabove, the said question need not be gone into.
24
28- Keeping in view the aforesaid circumstances and the
principles laid down by the Supreme Court, in the cases of Dr. H.
Mukherjee (supra) and P. Saroj (supra) and the facts and circumstances
of the present case, this Court does not find any arbitrariness or illegality
in the action of the respondents, impugned in this writ petition
warranting interference. The respondents are well within their rights in
withdrawing the offer of appointment, when they are satisfied about the
past conduct of the petitioner and the subjective satisfaction of the
respondents in assessing the past conduct of the petitioner and holding it
to be such that it disentitles the petitioner to join the establishment of
respondent No.1 cannot be termed as an arbitrary or illegal decision
warranting interference by this Court in exercise of its limited
jurisdiction in a petition under Article 226 of the Constitution.
Respondent No.1 has given reasonable justification for their impugned
action and this Court cannot sit over the said decision as if it exercises
appellate jurisdiction. Respondent No.1 having refused to enter into a
contract of service with the petitioner for the reasons indicated
hereinabove, a writ of mandamus cannot compel respondent No.1 to
enter into a contract, contrary to their wishes.
29- Accordingly, finding no justification for interfering into the
matter, this petition is dismissed without any order so as to costs.
( RAJENDRA MENON )
JUDGE
Aks/-