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Andhra High Court · body

2011 DIGILAW 811 (AP)

Mahesh Gopalan v. Central Government of India

2011-09-27

L.NARASIMHA REDDY

body2011
Judgment : 1. The petitioner joined the service of the Central Industrial Security Force (CISF) as Constable on 01-06-1999 and worked at various places throughout the country. There exists a facility of Limited Departmental Competitive Examination (LDCE), which enables the departmental candidates to compete for the posts of Sub-Inspector. The LDCE notification was issued in the year 2010 by the respondents proposing to fill 576 vacancies of Sub-Inspectors. The petitioner appeared for the examination and was selected. An order of appointment was issued on 16-11-2010 by the Commandant, CISF, 5th Battalion, Ghaziabad, Uttarpradesh, 4th respondent herein, and he was required to report to the Principal of CISF training institute at Arakkonam for basic training. Accordingly, the petitioner reported duty. However, within two weeks, the 4th respondent issued proceedings, dated 30-11-2010, rejecting the candidature of the petitioner on the ground that he did not meet the eligibility criteria. The petitioner was required to return the order of appointment. The petitioner challenges the order, dated 30-11-2010. 2. The petitioner submits that he was selected and appointed as Sub-Inspector on the basis of his performance in the written examination and on valuation of the service record, and that there was absolutely no basis for the 4th respondent in withdrawing the order of appointment. He submits that the impugned order is violative of principles of natural justice since neither any show cause notice was issued to him nor any reasons are mentioned in it. 3. On behalf of the respondents, a counter – affidavit is filed. The fact that the petitioner was permitted to appear in the written test and he was selected on being found to have fulfilled the prescribed conditions, it is not disputed. It is, however, stated that a minor lapse occurred when the service record of the petitioner being evaluated. It is stated that a candidate must have good record for a period of four years preceding the selection, and that in the case of the petitioner, it emerged that in the year 2008 verbal counselling was given to him and on the basis of the same, his performance for the period between 01-03-2008 and 31-12-2008 was assessed as ‘average’. This, according to the respondents would disable the petitioner from being considered. This, according to the respondents would disable the petitioner from being considered. It is also their case that mere issuance of the order of appointment does not confer any right on the petitioner and withdrawal of the same on realizing the mistake cannot be treated as punishment. 4. Sri B. Shiva Kumar, learned counsel for the petitioner submits that the application submitted by the petitioner for appearing in the entrance examination was processed and on being issued the hall ticket, the petitioner appeared for the entrance test. He contends that the petitioner was selected on a thorough verification of the personal record and performance in the entrance test and once an order of appointment is issued, it can be withdrawn or terminated, if only any act of mis-conduct on the part of the petitioner was noticed, that too, by following the prescribed procedure. He submits that the reasons mentioned by the respondent in the counter – affidavit cannot be sustained in law. 5. Sri S. Rajasekhara Rao, learned Standing Counsel for the respondent, on the other hand, submits that an inadvertent mistake has crept into the assessment of the record of the petitioner and an order of appointment was issued. He submits that once a candidate is assessed as average, he does not fit into the parameters for LDCE. 6. The Union of India provided for an out of turn facility for the in-service candidates to seek appointment as Sub-Inspectors. A process, akin to that of direct recruitment, is provided under LCDE. The only difference that the participation is restricted to the in-service candidates. A written examination is conducted and candidates are selected on the basis of merit therein. It is only when the service of a candidate for a period of four years, preceding the recruitment, is found to be good and satisfactory, that candidate would be considered. 7. The petitioner was issued an order of appointment, dated 16-11-2010, and was directed to report to the training College at Arakkonam. About two weeks thereafter, the 4th respondent issued an order of withdrawal of appointment on 30-11-2011, which is as under: “2. Your candidature for the post of SI/Exe through LDCE-2010 is hereby rejected on the ground of not meeting the eligibility criteria. Accordingly appointment letter issued to you vide this office letter No. E-32018/Rectt/SI/Exe (LDCE)-2010/5th RB/10-87 dated 16-11-2010 is hereby withdrawn and rejection slips are enclosed herewith in duplicate. Your candidature for the post of SI/Exe through LDCE-2010 is hereby rejected on the ground of not meeting the eligibility criteria. Accordingly appointment letter issued to you vide this office letter No. E-32018/Rectt/SI/Exe (LDCE)-2010/5th RB/10-87 dated 16-11-2010 is hereby withdrawn and rejection slips are enclosed herewith in duplicate. Original may be retained by you and duplicate duly received/acknowledged by you may be returned to this office through your unit commander.” 8. The order is blissfully silent as to why the candidature of the petitioner was rejected, and what are the eligibility criteria, which he did not meet. It is no doubt true that no citizen has a right to insist on being appointed and even where a candidate is selected, he does not get an automatic right to get appointed. However, once an order of appointment is issued the uncertainty in this regard ceased to exist and valuable right accrues to the incumbent. In case, the order of appointment is found to be irregular in any manner, the candidate so appointed must be put on notice and he be given an opportunity to explain as to why the order of appointment be not cancelled or withdrawn. If the order is not preceded by any show cause notice, it becomes violative of principles of natural justice. It becomes illegal and arbitrary, if it is bereft of reasons. The order impugned in this writ petition suffers from both the vices. 9. It was not even alleged by the respondents that the petitioner suppressed any facts, pertaining to his service. No order of punishment or admonishing or censure was served upon him in the period of four (4) years, preceding the date of impugned order or for that matter, the selection process. No rule is cited in support of the contention of the respondents that if the assessment or evaluation of the performance of the candidate is ‘average’, it would disentitle him from being considered under the LDCE. The hard earned appointment of the petitioner to the post of Sub-Inspector with a dint of hard work cannot be permitted to be taken away on the basis of nonexistent reasons and in violation of principles of natural justice. 10. The Writ Petition is accordingly, allowed and the impugned order is set aside. The hard earned appointment of the petitioner to the post of Sub-Inspector with a dint of hard work cannot be permitted to be taken away on the basis of nonexistent reasons and in violation of principles of natural justice. 10. The Writ Petition is accordingly, allowed and the impugned order is set aside. The result would be the appointment of the petitioner as Sub-Inspector vide proceedings, dated 16-11-2010 shall hold good and he shall be imparted training with the next batch of candidates. However, his seniority shall be reckoned on the basis of the order of appointment only, irrespective of the date on which he has subjected to training or the date of commencement of probation in the post of Sub-Inspectors. There shall be no order as to costs.