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2001 DIGILAW 968 (RAJ)

K. S. Chauhan v. State of Rajasthan

2001-05-30

SHIV KUMAR SHARMA

body2001
Honble SHARMA, J.–Main grievance projected by the petitioner in the instant writ petition is that after he was substantively appointed through open selection as Registrar Engineering College Kota, the respondents at a later point of time unilaterally converted his appointment into a term appointment and issued order dated June 19, 1999. The petitioner seeks to quash the said order and prays that he may be allowed to continue on the post of Registrar till he attains the age of superannuation with all consequential benefits. (2). The petitioner averred in the writ petition that he was initially working in the Instrumentation Limited, Kota from 1975 to April, 1994 as Manager (Technical) and was thereafter appointed as Reader (Electronic, Instrumentation and Control. Engineering) vide order dated 1.8.1994. While the petitioner was holding the post of Reader in Engineering College Kota the respondents advertised the post of Registrar in pay scale of Rs. 1130-350-16200. The said advertisement was published in the daily Newspaper ``Rajasthan Patrika on April 29, 1998. In pursuance to the said advertisement the petitioner submitted application for consideration of his candidature to the post of Registrar. The respondent after examining the eligibility and qualifications of the petitioner called him for interview vide letter dated June 4, 1998. After the petitioners suitability being adjudged by the respondents he was found suitable and on the recommendations made by the selection committee duly approved by the Chairman of the Engineering College, the petitioner came to be appointed as Registrar, Engineering College Kota vide order dated June 24, 1998. Pursuant to it the petitioner joined as Registrar on June 24, 1998 and after his joining as Registrar his temporary appointment was terminated from the post of Reader vide order dated June 26, 1998. At the time of his appointment the pay of the petitioner was fixed provisionally in the pay scale of Rs. 11300-16000 which was prescribed for the post of Registrar and after the recommendations of the 5th Pay Commission his pay on the post of Reader in Engineering College Kota which he was holding on June 24, 1998 was protected. (3). At the time of his appointment the pay of the petitioner was fixed provisionally in the pay scale of Rs. 11300-16000 which was prescribed for the post of Registrar and after the recommendations of the 5th Pay Commission his pay on the post of Reader in Engineering College Kota which he was holding on June 24, 1998 was protected. (3). The petitioner further pleaded that he has been working after regular selection as Registrar in substantive capacity, the respondents issued an order on June 19, 1999 whereby unilaterally an amendment was made in the order of petitioners initial appointment dated June 24, 1998 treating his appointment to be a term appointment for three years and the order of earlier appointment stood modified accordingly. In the said order a note has been appended with the approval of the Chairman dated 4.07.1998 was in the knowledge of the petitioner as he signed the note sheet which was sent to the Chairman for approval. The petitioner immediately protested the said unilateral amendment made in the order dated June 24, 1998 by submitting representation on July 16, 1999. He further sent reminders on October 29, 1999, February 5, 2000 and April 20, 2000, but no action was taken by the respondent on the said representations. Thereafter further representation was submitted by the petitioner to the Chairman of the Society (respondent No.2) on June 26, 2000 with a request that unilateral amendment made in the appointment order was unjust and improper. (4). In the writ petition the petitioner further averred that the modification in the initial appointment order made vide order dated June 19, 2000 was arbitrary and violative of Article 14 of the Constitution. The condition of contract could not have been changed unilaterally. In respect of note appended in the order dated June 24, 1998 the petitioner pleaded that in administrative hierarchy all note sheets go through the Registrar, as such the note sheet was also sent to the petitioner but that knowledge of the petitioner in no manner will hold to be his consent. Immediately after the decision was taken in altering condition of his appointment unilaterally, the petitioner made a protest in the month of July, 2000 and sent reminders. (5). Immediately after the decision was taken in altering condition of his appointment unilaterally, the petitioner made a protest in the month of July, 2000 and sent reminders. (5). In the reply submitted by the respondents, it was pleaded that the petitioner had mislead the selection Board and he did not submit the marks sheet and only submitted the degree of the examination. In the application form submitted by the petitioner for appointment on the post of Registrar he has stated that he passed the M.Sc. (Physics) Examination with 55 per cent marks and secured second division. In fact the petitioner secured only 50.5 per cent marks and thus the petitioner gave a wrong declaration in the application form. The petitioner also submitted that he possessed the qualification of Management Trainee Courts but in fact the petitioner was appointed as Engineering Graduate Apprentice. It was further averred in the reply that the petitioner was holding the post of Registrar Engineering College Kota as a stop-gap arrangement at the time when the process of selection was initiated by issuing advertisement for inviting the application forms till the stage when the selection process was concluded and the appointment order was issued. The Registrar who performs the executive and secretarial work of the Engineering College looks after the work of initiating the selection process of all the posts. The petitioner deliberately in the advertisement did not get it mentioned that the incumbent must possess Higher Second Division in the Post Graduate Examination. In the advertisement itself the petitioner malafidely did not get it mentioned that the post of Registrar shall be filled in on contract basis for a period of three years. The petitioner took the benefit of his position as Registrar (temporary charge) in order to take benefit for himself. It was further averred in the reply that the Society in its meeting held on May 18, 1992 passed a resolution that (the post of Registrar shall be filled in on contract basis for a period of three years. The Chairman of the Society approved the above said resolution. In view of the resolution it was necessary to amend the intentional error made in the initial appointment order. The amendment in fact is not unilateral but an amendment to convey to the petitioner the terms of post in writing which was otherwise in knowledge of the petitioner. The Chairman of the Society approved the above said resolution. In view of the resolution it was necessary to amend the intentional error made in the initial appointment order. The amendment in fact is not unilateral but an amendment to convey to the petitioner the terms of post in writing which was otherwise in knowledge of the petitioner. Objection in respect of maintainability of the writ petitioner was also raised in the writ petition. (6). The petitioner submitted rejoinder to the reply reiterating the facts stated in the writ petition. (7). I have heard Mr. Ajay Rastogi, learned counsel appearing for the petitioner and Mr. R.N. Mathur, learned Additional Advocate General appearing for the respondents and carefully perused the material on record. (8). In support of his contention Mr. Ajay Rastogi, learned counsel appearing for the petitioner placed reliance on Karnataka State Coop. Apex Bank Ltd. vs. Y.S. Shetty and others (1), and Chandra Shakher vs. State of Rajasthan (2). Whereas Mr. R.N. Mathur, learned counsel appearing for the respondents cited University of Cochin vs. N.S. Kanjoonjamma and others (3), and Dharam Pal Singh vs. State of Rajasthan (4). (9). Following questions emerge for my consideration in the instant matter. (i) Whether the terms of appointment incorporated in the appointment order can be unilaterally modified at a later point of time? (ii) Whether misrepresentation made by a candidate at the time of his appointment can affect the appointment and whether in such a situation the candidate is not entitled to hearing? (10). A look at the appointment order of the petitioner dated June 24, 1998 demonstrates that he was appointed as Registrar Engineering College Kota and no such condition was incorporated in the said order that his appointment was on contract basis for a period of three years. In the office order dated June 26, 1998 which was issued by the Principal, Engineering College Kota, it was stated that consequent upon selection and joining of the petitioner on the regular post of Registrar on June 24, 1998 his services as urgent temporary Reader, Instrumentation and Control stood terminated with effect from June 24, 1998. It is thus evident that his services as Reader were termination when the petitioner was appointed as Registrar. It also appears from the record that before altering the conditions of appointment the petitioner was not provided opportunity of fair hearing. It is thus evident that his services as Reader were termination when the petitioner was appointed as Registrar. It also appears from the record that before altering the conditions of appointment the petitioner was not provided opportunity of fair hearing. It also appears that no explanation was ever called from the petitioner with regard to his eligibility in last three years of his working as Registrar. If at all the respondents were of this view that there was any concealment made in the application form by the petitioner it was always open for them to proceed against the petitioner after due compliance of principles of natural justice but no action was ever initiated in this regard. (11). It is contended by Mr. R.N. Mathur, learned Addl. Advocate General appearing for the respondents that post of Registrar was a term appointment for a period of three years as per resolution dated May 18, 1992 (Annexure R/4). I have closely scanned the document Annexure R/4 placed on record by the respondents. By this resolution a decision appears to have been taken that the appointment on the post of Registrar should be made for a period of three years and the matter after necessary action be placed before the Chairman. But what action was taken by the Chairman in pursuance to the said resolution has not been placed on recorded by the respondents. On behalf of the petitioner it is contended that after resolution dated May 18, 1992, advertisement for the post of Registrar was issued on August 29, 1992. Copy of the advertisement has been placed on record as Annexure 14 with the rejoinder. A look at the advertisement goes to show that there was no such condition mentioned in the said advertisement that appointment to the post of Registrar was a term appointment for three years. On behalf of the petitioner it is further averred that advertisement in 1998 was issued after seeking approval from the competent authority and the recommendations made was also accepted by the Chairman of the Society, who was the appointing authority as per the schedule of powers. It is also contended that even in the present scheme of the society there is no provision that appointment on the post of Registrar was contract post for three years. It is also contended that even in the present scheme of the society there is no provision that appointment on the post of Registrar was contract post for three years. On the contrary Rule 13 of the Rules of the Engineering College Society Kota (Raj.) provides that the Society shall appoint a Registrar of the College on such terms and conditions as it may lay down, the Registrar shall be whole time officer of the College, and he shall exercise such powers and perform such functions may be delegated or assigned to him by the Society or the Principal. (12). It is next contended by Mr. R.N. Mathur, learned Additional Advocate General appearing for the respondents that being officiating Registrar the petitioner was responsible for manipulation. A look at the interview memo dated June 4, 1998 Annexure-3 reveals that condition No.6 was incorporated in it thus- ``6. Appointment can be on a contract period of three (3) years. But in the appointment letter which was issued by the Principal no such condition was mentioned. The respondents have placed nothing on record to show that the petitioner misused his post and was responsible for manipulation. (13). The case of University of Cochin vs. N.S. Kanjoonjamma and others (supra) is distinguishable. In that case the advertisement was issued for Special Recruitment reserved for SC and ST candidates, General candidate also applied. Still it was made clear that no right was accrued in favour of any applicant. Under these circumstances it was held by their Lordships of the Supreme Court that omission in advertisement was of no consequence. The ratio of this case is not applicable in the instant matter. (14). Case of Dharampal Singh and others vs. State of Rajasthan (supra) is also distinguishable. The respondents in the instant matter have never initiated action against the petitioner in regard to concealment of any fact and the concealment of fact was not the subject matter of unilateral modification of the terms and conditions of the appointment order. (15). In Karnataka State Coop. Apex Bank Ltd. (supra), it was indicated by the Honble Supreme Court that since the documents clearly show that appointments to be temporary and NCDC III Project has come to an end, the respondents cannot claim any right to a permanent post in the appellant Bank. (16). (15). In Karnataka State Coop. Apex Bank Ltd. (supra), it was indicated by the Honble Supreme Court that since the documents clearly show that appointments to be temporary and NCDC III Project has come to an end, the respondents cannot claim any right to a permanent post in the appellant Bank. (16). Similarly in Chandra Shakher vs. State of Rajasthan (supra) it was indicated by the Division Bench of this Court that temporary service before regularation is to be governed by the conditions of appointment contained in the letters of appointment. (17). To my mind, the condition incorporated in the appointment letter cannot be changed unilaterally and if such change is required opportunity of hearing should be provided to the appointee. If any concealment is made by the candidate and appointment is sought on that basis, the candidate is entitled to be heard before any action is taken against him. (18). In the instant case the respondents vide letter June 19, 1999 (Annexure-7) unilaterally modified the conditions of appointment incorporated in the appointment order dated June 24, 1998 and this act of respondents is against the principles of natural justice and violative of Article 14 of the Constitution of India. (19). In view of the discussions made hereinabove, I allow this writ petition and set aside the order dated June 19, 1999 (Annexure-7) and direct the respondents to allow the petitioner to continue on the post of Registrar Engineering College Kota, Costs easy.