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2011 DIGILAW 942 (PNJ)

Surender Singh Taxak v. Food Corporation Of India

2011-03-29

M.M.KUMAR, T.P.S.MANN

body2011
Judgment M.M.Kumar, J. 1. The unsuccessful appellant has filed the instant appeal under Clause X of the Letters Patent impugning the judgement dated 14.3.2011 rendered by the learned Single Judge holding that once vigilance enquiry is pending against the appellant then he cannot be granted no objection certificate and his application cannot be forwarded for consideration of his name for appointment to the post of Deputy General Manager which is to be filled by direct recruitment. The short question which has been raised in the instant appeal is whether the pendency of regular vigilance/departmental enquiry would be a bar for consideration of the name of a delinquent employee for appointment on a post by way of direct recruitment. Could it be laid down that the condition obliging the employer to sign the no objection certificate is against Articles 14 and 16(1) of the Constitution. 2. Brief facts of the case are that the appellant has been working as Assistant General Manager in the Food Corporation of India (for brevity the Corporation). For filling the post of Deputy General Manager an advertisement dated 8.1.2011 has been issued by the Corporation inviting applications for direct recruitment for in service candidates, like the appellant. The application forms require them to obtain certificate from the former employer certifying that there was no vigilance case pending against the applicant besides the grant of no objection certificate. The appellant filed a petition with a prayer for quashing the condition. The aforesaid condition is incorporated in the application form (P.2). The appellant filled up the application form and also tendered requisite fee. He forwarded the same to the Executive Director to issue no objection certificate and grant him a declaration that no vigilance enquiry was pending. The respondents decided to withhold the application of the appellant because a vigilance enquiry is pending. The learned Single Judge rejected the argument that requirement of submission of no objection certificate would be unjust and unfair by observing as under :- "Counsel for the petitioner submits that this condition would be in violation of Articles 14 and 16 of the Constitution of India, inasmuch as the petitioner is being denied equal opportunity of consideration for appointment. It is not understood as to how this requirement of obtaining no objection or intimation regarding pending vigilance enquiry would be unfair and unreasonable in any manner. It is not understood as to how this requirement of obtaining no objection or intimation regarding pending vigilance enquiry would be unfair and unreasonable in any manner. The petitioner is in the service of FCI and is facing vigilance enquiry. He even cannot be held eligible for promotion due to pendency of enquiry. Would it then be fair to allow him to seek direct appointment on a higher post while his conduct is under a clout. Purity of administration would require that a person facing vigilance enquiry is not permitted to advance in service till he clears his name. It is an accepted norm for serving employees to seek another appointment after obtaining no objection from the department where they are serving. Once a person is facing a disciplinary enquiry while serving in the same department, he certainly cannot seek to be equated with other person applying for the post. It is well understood that in all organizations in-service candidates have to submit their application forms through proper channel. Getting no objection in such like cases is meant for ensuring that a person making application is free from any infirmity, which may affect his right to seek appointment. Certainly, a person may not be able to seek consideration for appointment, if he is involved in a serious case of misconduct....." 3. Mr. Gunjan Mehta, learned counsel for the appellant has repeated the same submissions before this Court which he had urged before the learned Single Judge. According to the learned counsel the appellant may suffer great prejudice if he is exonerated in the vigilance enquiry which is still under process. According to the learned counsel he is entitled to be considered at this stage. 4. Having heard the learned counsel at some length we are of the considered view that no interference in the order passed by the learned Single Judge would be warranted because once the appellant is facing a vigilance departmental enquiry then no objection certificate could not be issued to him by the present employer nor it could be said that the condition laid down in the application form (P.2) certifying that there is no vigilance/disciplinary case pending against him. It would be apposite to set out the condition concerning issuance of no objection certificate and authentication that no vigilance/disciplinary case is pending against an aspirant of a direct quota post which reads thus :- "CERTIFICATE FROM THE PRESENT EMPLOYER (for candidates serving in Central/State Government, Public Sector Undertakings, and autonomous Bodies.) Certified that the above mentioned information furnished by the applicant is true and there is no Vigilance/Disciplinary Case pending against him/her. We have no objection to his/her applying for the above post in FCI and, if selected, he/she will be relieved as per this organizations norms subject to his/her compliance of all terms and conditions of the service rules. (Signature and seal of Employer)" 5. A perusal of the aforesaid condition would highlight that there is a requirement of issuance of an important certificate verifying that no vigilance/disciplinary case is pending against the aspirant for appointment to the post by way of direct recruitment. The department is also required to issue no objection certificate. Such a certificate would be a necessary condition of eligibility to enter any public employment particularly if an aspirant for a new post by way of direct recruitment is already employed in a public sector undertaking. It is not understood how such a condition would be violative of Articles 14 and 16(1) of the Constitution. The argument that right of the appellant would be prejudiced in case he is exonerated cannot be accepted because such a person would not be entitled to advance in his career till the time the doubts about his antecedents are cleared. Therefore, the condition of issuance of no objection certificate and verification of antecedents of the aspirant for a new post from the former employer cannot be regarded as arbitrary because it helps in assessment of suitability and fitness of the candidate for the post to be offered to him. Accordingly, we reject the aforesaid argument. 6. The sanctity of public service is required to be maintained by ensuring that persons with doubtful integrity do not enter the portals of public office. The condition incorporated in the application form requiring the appellant to submit no objection certificate alongwith a declaration from the present employer that the appellant is not involved in any vigilance/departmental enquiry are mandatory conditions in order to secure the basic object of allowing the persons with clean antecedents to enter service. The condition incorporated in the application form requiring the appellant to submit no objection certificate alongwith a declaration from the present employer that the appellant is not involved in any vigilance/departmental enquiry are mandatory conditions in order to secure the basic object of allowing the persons with clean antecedents to enter service. The pendency of a criminal case was considered sufficient for quashing appointment of Central Vigilance Commissioner in a recent judgement rendered in the case of Center for PIL and another v. Union of India and other, 2011(2) R.C.R.(Criminal) 491 : 2011(2) S.C.T. 590 : 2011(2) R.A.J. 261: Writ Petition (C) No. 348 of 2010 decided on 3.3.2011. Honbale the Supreme Court has set aside the appointment of Mr. P.J.Thomas as Chief Vigilance Commissioner because criminal prosecution under Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 120 B of the Indian Penal Code was pending against him in the Court of Special Judge, Thiruvanathapuram. Once a vigilance enquiry has been initiated against a government employee, as is the situation in the present case, then it is a far cry to expect that the name, of such a delinquent employee would be recommended for appointment by way of direct recruitment to a higher post. Therefore, we are of the view that there is no room for interference in the instant appeal. It does not merit admission. 7. As a sequel to the above discussion, the instant appeal fails and the same is dismissed. Appeal dismissed