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2010 DIGILAW 906 (GAU)

Ruby Sharma v. Union of India & Ors.

2010-12-02

B.K.SHARMA

body2010
B.K. Sharma, J.;- By means of this writ petition, the petitioner has put to challenge the Annexure-13 letter dated 8.8.2008 addressed to her by the respondent No. 3 cancelling the appointment order earlier issued to her pursuant to a selection conducted by the respondents for the post of TGT (Science/Bio/Bio-Chem). The petitioner was selected and was offered with the Annexure-11 offer of appointment dated 24.7.2008. In the appointment order, the post to which the petitioner was shown appointed was indicated as TGT (Science/ Bio) in BSF Senior Secondary School, Jalandhar, on the terms and conditions stipulated in the offer of appointment one of which was that she should join her duty by 18.8.2008. 2. On getting the offer of appointment, as per the averments made in the writ petition, the petitioner communicated her acceptance of the offer vide Annexure-12 letter dated 1.8.2008. According to the petitioner, she received a telephone call on 2.8.2008 from a lady requesting the petitioner to agree for mutual re-allocation of posting by stating that since she hails from Jalandhar and the petitioner from Shillong, there would be no difficulty in getting the posting exchanged. The petitioner has also identified the telephone number as 98880-78266. 3. The aforesaid telephone call was followed by another call on 8.8.2008 stated to be from the Principal, Senior Secondary School, Shillong to the effect that the said Principal had received a letter/fax from New Delhi Office of the BSF Education Cell conveying cancellation of the offer of appointment made to the petitioner as TGT (Bio/Science) in the Jalandhar School. Thereafter, the petitioner collected the aforesaid impugned Annexure-13 letter dated 8.8.2008 conveying the decision about cancellation of her appointment. The ground for such cancellation is stated to be "certain administrative reason". For a ready reference, the impugned Annexure-13 letter dated 8.8.2008 is extracted below:- "Office of the Central Committee BSF Education Society 10 CGO Complex. Lodhi Road. New Delhi-110003 31/26/Apptt./Adm.V/BSF/7421-23 Dated 8th Aug'08 Ms. Ruby Sharma C/o Mr. R. K. Sharma Type III/9 GPA Motinagar, Shillong Pin 793014 Cancellation of Appointment Order I have been directed to inform you that offer of appointment issued to you for the post of TGA (Science/Bio) at BSF Senior Secondary School, Jalandhar vide this HQ Letter No. 217 26(1)/08/Edn/Adm/BSF/7345-47 dated 24th July 2008 is hereby cancelled by the Competent Authority due to certain administrative reason. Hence this HQ Letter No. 21 /26(1)/08/Edn/Adm/ BSF/7345-47 dated 24th July 2008 be treated as cancelled. Sd/- (SAAlvi) DIG(Adm)" 4. In paragraph 9 of the writ petition, the petitioner has stated about relinquishment of her service as Post Graduate Teacher in the North Eastern Police Academy, Barapani in view of the aforesaid offer of appointment. Further statement made in the said paragraph is that she was contemplating and preparing to leave for Jalandhar but to her dismay she was communicated with the aforesaid impugned letter. Being aggrieved, she made Annexure-14 series representations to the authorities which were never attended to. In the meantime, the BSF authority issued the Annexure-15 advertisement published in the issue of the Telegraph dated 5.11.2008, by which applications were invited for a post of TGT (Bio/Science). The post was meant for Shillong. 5. Being aggrieved by the aforesaid action on the part of the respondents, the petitioner approached this Court by filing the instant writ petition. 6. While entertaining the writ petition, by order dated 5.12.2008 it was directed that the respondents would not proceed further for filling up the aforesaid post of TGT (Bio/ Science) at BSF Senior Secondary School, Umpling until further order from this Court. The respondents, both the official as well as the private, have filed their counter affidavits. According to the official respondents, the respondent No. 6 who has been appointed in lieu of the petitioner was wrongly included in the category of TGT (Science/Maths) instead of TGT (Science/Bio). It has been stated that although the respondent No. 6 had also applied for the post of TGT (Science/ Bio) but her name was wrongly included in the group of TGT (Science/Maths). The mistake was allegedly detected when the respondent No. 6 made an application to the BSF authority for change of her posting from Shillong to Jalandhar. Accordingly, a corrected combined list was drawn subsequently. 7. In the counter affidavit filed by the respondent No. 6, it has been stated that she did not apply for the post of TGT (Science/ Maths) but had applied for the post of TGT (Science/Bio). In her affidavit she has admitted about the fact of the contact being made with the petitioner by her cousin with the request for mutual re-allocation. According to her, the petitioner did not agree to the proposal and thus the matter came to an end. In her affidavit she has admitted about the fact of the contact being made with the petitioner by her cousin with the request for mutual re-allocation. According to her, the petitioner did not agree to the proposal and thus the matter came to an end. According to the respondent No. 6, when she carefully read her appointment order, to her surprise, she found that she was appointed as TGT (Science/Maths) although she had applied for the post of TGT (Science/Bio). According to her she did her B.Sc in Med Group from Punjab University, Patiala and that Mathematics was not her subject in B.Sc. 8. Everything went on fine till the respondent No. 6 made an application to the BSF authority with the request for her posting at Jalandhar instead of Shillong. Be it stated here that while the petitioner was appointed at Jalandhar, the respondent No. 6 who hails from Jalandhar was appointed at Shillong. It will also be pertinent to mention here that the petitioner belongs to Shillong. This is precisely the reason as to why the request was made by the respondent No. 6 for mutual re-allocation of the appointment. Not only she made the request to the petitioner but also approached the BSF authority with the request for her posting at Jalandhar. 9. The petitioner in her rejoinder affidavit has reiterated the contentions raised in the writ petition. In the rejoinder affidavit, she has stated that the plea of the respondents about drawal of a combined merit list subsequently is fallacious inasmuch as two different lists for two different places i.e. Jalandhar and Shillong were prepared and there could not have been any combined list. The plea of the petitioner is that the entire exercise has been carried out only to accommodate the respondent No. 6 and in the process the petitioner has been deprived of her appointment as TGT under the respondents. In paragraph 4 of the rejoinder affidavit, the petitioner has stated about relinquishment of her earlier assignment and the sufferings she had to face due to the aforesaid impugned Annexure-13 letter dated 8.8.2008. 10. I have heard Mr. B. N. Dutta, learned senior counsel appearing for the petitioner as well as Mr. R. Debnath, learned CGC appearing for the respondents. 11. Although the respondent No. 6 has filed her counter affidavit, but she has not engaged any counsel. While Mr. 10. I have heard Mr. B. N. Dutta, learned senior counsel appearing for the petitioner as well as Mr. R. Debnath, learned CGC appearing for the respondents. 11. Although the respondent No. 6 has filed her counter affidavit, but she has not engaged any counsel. While Mr. B. N. Dutta, learned senior counsel for the petitioner submits that the entire action on the part of the respondents is illegal and arbitrary, Mr. R. Debnath, learned CGC submits that the action on the part of the respondents was only in the direction of correcting the mistakes they had earlier committed and in the said action there was no illegality and/or arbitrariness. 12. Mr. R. Debnath, learned CGC was requested to produce the entire records pertaining to the selection. The matter was first heard on 1.11.2010 and again thereafter on 4.11.2010. It was specifically directed that the respondents would produce the entire records. The matter was again heard yesterday i.e. 1.12.2010 and Mr. Debnath was again requested to produce the records including the application submitted by the respondent No. 6 offering her candidature for the post of TGT. 13. In response to the aforesaid orders passed by this Court, Mr. R. Debnath, while producing the file entitled "BSF Senior Secondary School, Umpling, Shillong (Vol-II)" fairly submits that the records of the selection including the records pertaining to the redrawal of the Select List on detection of the purported mistakes have not been handed over to him. 14. I have considered the submissions made by the learned counsel for the parties and have also perused the entire materials on records including the aforesaid file produced by Mr. R. Debnath, learned CGC. 15. On perusal of the records, what is found is that both the petitioner and the respondent No. 6 did their B.Sc with the subjects Botany, Zoology and Chemistry. As in the case of the petitioner, the respondent No. 6 was also offered with the appointment order with posting at Shillong. The respondent No. 6 has enclosed the copy of the offer of appointment dated 24.7.2008 by which she was offered the post of TGT (Science/Maths) at Shillong. However, as in the case of the petitioner, her appointment was also cancelled due to certain administrative reason and the same was communicated by letter dated 8.8.2008. The respondent No. 6 has enclosed the copy of the offer of appointment dated 24.7.2008 by which she was offered the post of TGT (Science/Maths) at Shillong. However, as in the case of the petitioner, her appointment was also cancelled due to certain administrative reason and the same was communicated by letter dated 8.8.2008. Thereafter, she was offered the post of TGT (Science/Bio) at Jalandhar by order dated 8.8.2008 directing her to join the post on or before 31.8.2008. Pursuant to such fresh offer of appointment, the respondent No. 6 has joined the post of TGT (Science/Bio) at Jalandhar. On perusal of the file produced by Mr. R. Debnath, it is found that after the initial offer of appointment made to the respondent No. 6 appointing her as TGT (Science/Maths) at Shillong, she made an application dated Nil to the BSF authority, contents of which are reproduced below:- "To, The 1G (Adm) HQ DG BSF New Delhi To, Ftr HQ BSF Shillong (Sd)25/11/X (Ram Pal Singh DCC (EDN) Respected Sir, With due respect I state that I Manju Mehra is selected as TGT Science in BSF Senior Secondary School Shillong. There is some vacancy in Jalandhar also. Sir I am residing in Jalandhar, the candidate has been selected for Jalandhar belongs to Shillong. I had also worked as TGT Science in Jalandhar on Adhoc Basis for 4-5 months. My whole family is settled in Jalandhar. I have one daughter and my husband is also working in Jalandhar. Recently I am remarried in Jalandhar. I had lost my first husband in road accident Chandigarh. With very difficulty my daughter has set up with my new family so it is difficult for her and me to leave far from my husband. This is my last chance for this job. Kindly adjust me in BSF Senior Secondary School, Jalandhar. It's my heartiest request. Thanking you. Manju Mehra H. No. 160/8, PreetNagar Ladowali Road, Jalandhar" 16. In absence of any date in the aforesaid letter, it is not discernible as to when the request for posting the respondent No. 6 at Jalandhar was made. When the letter was shown to Mr. R. Debnath, learned CGC to point out the date, he has submitted that as per the endorsement, the letter was received on 26.11.2010. In absence of any date in the aforesaid letter, it is not discernible as to when the request for posting the respondent No. 6 at Jalandhar was made. When the letter was shown to Mr. R. Debnath, learned CGC to point out the date, he has submitted that as per the endorsement, the letter was received on 26.11.2010. However, on perusal of the said letter, what is found is that there is an endorsement dated 25.11.2010 made by one Shri Ram Pal Singh, Deputy DC (Education Cell), Delhi. If any request was to be made by the respondent No. 6 for her posting at Jalandhar, such request was to be made during August 2008 when the appointments were offered. 17. Be that as it may, things started moving adversely against the petitioner when the respondent No. 6 made the request for her posting at Jalandhar instead of Shillong. Not only the appointment of the petitioner was cancelled without putting her to any kind of notice and assigning the reason as "due to certain administrative reason", but the respondent No. 6 was appointed in place of the petitioner at Jalandhar. It was never made known to the petitioner that the Select List earlier prepared had to be redrawn on noticing the purported mistake but as is reflected in the impugned letter, the appointment of the petitioner was cancelled due to some administrative reason. Administrative reason cannot be equated with that of correction of any selection by the Selection Committee. This is precisely the reason as to why Mr. B. N. Dutta, learned senior counsel for the petitioner has submitted, that the purported administrative reason assigned in the impugned letter is the decision of the administration to accommodate the respondent No. 6 at the cost of the petitioner. 18. In the counter affidavit filed by the respondents, they have annexed the purported Merit List prepared by the Selection Board and Combined Merit List of TGT (Science/Bio) prepared subsequently. 18. In the counter affidavit filed by the respondents, they have annexed the purported Merit List prepared by the Selection Board and Combined Merit List of TGT (Science/Bio) prepared subsequently. On perusal of both the Merit Lists, what is found is that although the original Merit List was signed by the Presiding Officer and the Member of the Selection Board numbering 4 (four), but the Annexure-B combined Merit List subsequently prepared does not bear any signature of any of the Members, hi the same combined Merit List the petitioner has been shown to have occupied the merit position No. 7 while the respondent No. 6 has been shown to have occupied the merit position No. 1. While in the merit list, the petitioner has been shown to have secured 51, the respondent No. 6 has been shown to have secured 73. While the total marks said to have been secured by the petitioner, which is 51, is quite legible although over-written, but in the Court's copy there is no indication of marks said to be 73 secured by the respondent No. 6. When this was pointed out to Mr. R. Debnath, he by producing his copy of the counter affidavit and the Annexures therein submits that the respondent No. 6 in fact has secured 73. On perusal of his copy of the merit list the figure 73 is found to be there although not very legible and admittedly over-written. While the petitioner is shown to have been awarded marks under different columns, but so far as the respondent No. 6 is concerned, the copy of the merit list does not indicate the same in all the columns but yet in the copy possessed by Mr. R. Debnath she has been shown to have secured 73. 19. Another important aspect of the matter is that in Annexure-C document annexed to the counter affidavit under the head "TGT (Biology/Chemistry)", the petitioner has been shown at second position with posting at Shillong but under remark/choice column it has been written as Jalandhar. In the said Annexure-C list, the name of the respondent No. 6 is not found. However, her name appears in the subsequent page under the head "TGT (Science)". In the said list she occupies merit position No. 1 with posting at Jalandhar. In the said Annexure-C list, the name of the respondent No. 6 is not found. However, her name appears in the subsequent page under the head "TGT (Science)". In the said list she occupies merit position No. 1 with posting at Jalandhar. As noted above, the Annexure-D is the combined merit list prepared subsequently without any signature of any of the Members of the Selection Committee. 20. It is with the aforesaid procedure adopted by the respondents that the respondent No. 6 has been accommodated at Jalandhar and the petitioner has been deprived of her appointment on the ground of redrawal of the Select List. It is not understood as to how the Selection Committee of the BSF could place the respondent No. 6 in the category of Science/ Maths if she was an applicant for TGT (Science/Bio). 21. As per the advertisement (Annexure-9) one post of TGT (Science/Bio) was shown for Jalandhar (Punjab) and another post of TGT (Bio/Chem) was shown for Shillong, Meghalaya. While consulting the purported Merit List annexed to the counter affidavit filed by the respondents, what is found is that the name of the petitioner was included at serial No. 2 in the category of TGT (Bio/Chem) which was meant for Shillong, Meghalaya as per the advertisement. It is in this context the petitioner has prayed for her appointment against the post of TGT (Bio/Science) which has been advertised by Annexure-15 advertisement dated 5.11.2008. 22. In view of the above anomalies coupled with the fact that the respondents have refused to produce the original records, I am constrained to hold that injustice has been done to the petitioner. She was offered with the appointment as TGT (Science/Bio) at Jalandhar which made her to resign from her earlier assignment. Thus, as per the promise made out to her, she acted on that and in the process the respondents having resiled back from their promise, the petitioner finds herself in a disadvantageous position inasmuch as not only she has been deprived of the appointment but has also been deprived of her earlier assignment as Post Graduate Teacher in the North Eastern Police Academy. 23. Irrespective of non-production of the original records by the respondents, on perusal of the photocopies of the Merit List earlier drawn and later drawn on rectification of the purported mistake, it does not inspire the confidence of the Court. 23. Irrespective of non-production of the original records by the respondents, on perusal of the photocopies of the Merit List earlier drawn and later drawn on rectification of the purported mistake, it does not inspire the confidence of the Court. It is not discernible as to on what basis and in what manner the Merit List was redrawn. If at all the Merit List was to be redrawn, same should have been processed through the same Members of the Selection Committee which had earlier conducted the selection. It gives the impression that everything was done to accommodate the respondent No. 6 at Jalandhar who in fact had sought for help of the petitioner for mutual transfer. 24. For all the aforesaid reasons, while not interfering with the appointment of the respondent No. 6 as she was also offered the appointment, it is hereby directed that the respondents will seriously consider the case of the petitioner for appointment as TGT (Science/Bio/Bio-Chem). In this connection, they may take note of the fact that a post of TGT (Bio/Science) has been advertised for Shillong, process relating to which is under stay of this Court. Till the process to be initiated towards consideration of the case of the petitioner consistently with the observations made in this judgment and order is carried out, the respondents are restrained from filling up the said post of TGT (Bio/ Science) at Shillong. 25. Let the entire exercise be carried out as expeditiously as possible, but at any rate, not later than 31.1.2011. 26. Writ petition is allowed to the extent indicated above without, however, any order as to costs.