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2012 DIGILAW 1081 (ALL)

Pushkar Mishra v. Union of India and Others

2012-05-07

RITU RAJ AWASTHI

body2012
Ritu Raj Awasthi, J.;— Heard Mr. Ramesh Pandey, learned counsel for petitioner as well as Mr. Sharad Kumar Srivastava, learned Central Government Counsel. Mr. Sharad Kumar Srivastava has produced the relevant records. The writ petition has been filed seeking direction to the opposite parties to consider the petitioner's candidature for appointment as Junior Commissioned Officer (Religious Teacher) in accordance with merit of RRT-49 Selection. The petitioner has also challenged the orders dated 23.11.2005 issued by Colonel/Presiding Officer, RRT-49 Course, Additional Directorate General of Recruiting 5(OR)(D), Adjutant General's Branch, Army Headquarters, West Block-III, R.K. Puram, New Delhi and consequential orders dated 28.12.2005, 6.12.2006 and 9.12.2006 of Director Recruiting, Recruiting Office, 236, Mahatama Gandhi Marg, Cantt. Lucknow to the extent that petitioner's candidature for recruitment of RRT-49 Course has been cancelled. The petitioner has also challenged the order dated 21.10.2005 of the Senior Records Officer for OIC Records Army Ordinance Corps Records, Secunderabad as well as the order dated 16.6.2008 of Director Recruiting, Recruiting Office (Headquarters) Mahatma Gandhi Marg, Lucknow. The controversy in short is that the candidature of the petitioner for the post of Junior Commissioned Officer (Religious Teacher) has been rejected on the ground that the petitioner had submitted a forged relationship certificate and as such petitioner is not entitled to be appointed on the post in question. Learned counsel for petitioner submitted that the impugned decision to reject the candidature of the petitioner is arbitrary, wrong and illegal and the same has been rejected on erroneous presumption that his date of birth is tempered in the relationship certificate. It is submitted that the allegations of tempering with relationship certificate is baseless and unfounded. The petitioner's date of birth is 25.12.1972 which stands verified by the enquiries made by the opposite parties. The opposite parties arbitrarily rejected the petitioner's case in view of doubt/confusion due to date of birth of his deceased brother (same name as that of petitioner i.e. Pushkar). The petitioner's late brother namely Pushkar Mishra expired on 21.12.1971. The enquiry report dated 23.9.2007, a copy of which is annexed as Annexure-11 to the writ petition, substantiates the case of petitioner. In fact an advertisement was issued in the month of May, 2005 by the Indian Army for recruitment on the posts of Junior Commissioned Officer (Religious Teacher). The petitioner in pursuance of the said advertisement had applied for the post in question. In fact an advertisement was issued in the month of May, 2005 by the Indian Army for recruitment on the posts of Junior Commissioned Officer (Religious Teacher). The petitioner in pursuance of the said advertisement had applied for the post in question. The petitioner being the son of ex-armyman had submitted the relationship certificate dated 21.4.2004 issued by the Record Officer from OIC Records Secunderabad. The petitioner had qualified the screening test and medical test and appeared in the written examination held on 7.8.2005. Thereafter he was called for interview to be held on 3.11.2005. It was in the month of December, 2005 that the petitioner came to know that the result of RRT-49 Course has been declared. Other candidates were informed about their final selection but the petitioner did not receive any communication. The petitioner submitted representation before Records Officer, Headquarters, Lucknow with request that he may be informed about his result of selection held for the post of Junior Commissioned Officer (Religious Teacher) RRT-49 Course. Thereafter petitioner filed Writ Petition No. 66936 of 2006 before this Court at Allahabad. After filing of the writ petition, petitioner received letter dated 6.12.2006 of Director Recruiting Headquarters, Recruiting Office, Lucknow along with letter dated 21.10.2005 of Senior Record Officer Army Ordinance Corps Records Secunderabad. The said letter dated 21.10.2005 is on record as Annexure-7 to the writ petition which indicates that by the said letter Record Officer, Headquarters, Lucknow was informed that some additions have been made in the relationship certificate of the petitioner after its issuance. It was also informed that the date of birth of the petitioner is 25.12.1970 as per records and not 25.12.1972, therefore, complaint may be lodged against the candidate in civil police to take necessary action for making alterations/additions in Government documents issued to an ex-serviceman. The petitioner after receiving the said letter through representation dated 15.1.2007 strongly disputed the aforesaid fact and informed the authorities that no manipulation was done by him and his correct date of birth is 25.12.1972. It was thereafter that Senior Record Officer Army Ordinance Corps Records by his letters dated 4.7.2007 and 3.9.2007 requested the Superintendent of Police Azamgarh to make an enquiry in respect of verification of petitioner's date of birth. The Superintendent of Police, Azamgarh made an enquiry in the matter and submitted his report dated 23.9.2007. It was thereafter that Senior Record Officer Army Ordinance Corps Records by his letters dated 4.7.2007 and 3.9.2007 requested the Superintendent of Police Azamgarh to make an enquiry in respect of verification of petitioner's date of birth. The Superintendent of Police, Azamgarh made an enquiry in the matter and submitted his report dated 23.9.2007. It is contended by the learned counsel for petitioner that by report dated 23.9.2007 the police has confirmed the place of birth of brother of petitioner as well as his own and as per the said report the correct date of birth of the petitioner is 25.12.1972. It was on the basis of the police report that by letter dated 10.4.2008 the mother of the petitioner was informed about the corrections made in the records relating to the date of birth of the petitioner and his brother who were the dependents of late (Subedar) Awadh Raj Mishra, a copy of letter dated 10.4.2008 is annexed as Annexure-12 to the writ petition. The contention of learned counsel for petitioner is that the opposite parties have themselves accepted the mistake in the records maintained by them with respect to the family and dependents of late (Subedar) Awadh Raj Mishra, who was the father of the petitioner and by letter dated 10.4.2008 the corrections made in the record was intimated to the mother of the petitioner. It is submitted that on one hand the opposite parties have themselves agreed that late (Subedar) Awadh Raj Mishra had two sons of the same name, however, on the other hand had rejected the candidature of the petitioner on the ground that his correct date of birth was not mentioned in the application and he had furnished the relationship certificate in which tempering was made. Submission is that after receiving of the police verification report and after the correction made in the relevant records and intimation to the mother of the petitioner by letter dated 20.4.2008, the opposite parties without assigning any reason have refused to re-consider the candidature of the petitioner in most arbitrary and illegal manner. Submission is that after receiving of the police verification report and after the correction made in the relevant records and intimation to the mother of the petitioner by letter dated 20.4.2008, the opposite parties without assigning any reason have refused to re-consider the candidature of the petitioner in most arbitrary and illegal manner. In this regard learned counsel for petitioner has drawn the attention of the Court towards letter dated 16.6.2008, a copy of which is annexed as Annexure-20 to the writ petition wherein the Director Recruiting, Recruiting Office, Lucknow has informed the petitioner that his candidature for recruitment for RRT-49 Course was cancelled for "Tempering the date of Birth" in the relationship certificate issued to him by AOC Records, which is illegal. The office has no concerned with publication of new Part-II Order of your date of birth. In support of his submission Mr. Ramesh Pandey has placed reliance on the judgment of Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigarh and others [2012 (4) Supreme Court Cases 407] wherein it has been held that it is a settled proposition of law that even in administrative matters, the reasons should be recorded as it was incumbent upon the authorities to pass a speaking and reasoned order. The main emphasis is on paragraphs 38-48 which are reproduced as under: " 38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. 39. In Kumari Shrilekha Vidyarthi v. State of U.P. & Ors., AIR 1991 SC 537 , this Court has observed as under:? "36............Every State action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you." This is what a man in power must remember always." 40. In LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811 , this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. In LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811 , this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority orthose under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India v. M.L. Capoor & Ors., AIR 1974 SC 87 ; and Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors., AIR 1993 SC 935 . 41. In State of West Bengal v. Atul Krishna Shaw & Anr., AIR 1990 SC 2205 , this Court observed that "7...........giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review." 42. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 , it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision. 43. In Krishna Swami v. Union of India & Ors., AIR 1993 SC 1407 , this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed: "47................Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21." 44. This Court while deciding the issue in Sant Lal Gupta & Ors. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21." 44. This Court while deciding the issue in Sant Lal Gupta & Ors. v. Modern Co-operative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336 , placing reliance on its various earlier judgments held as under: "27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice ? delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. "3............The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected." 45. In Institute of Chartered Accountants of India v. L.K. Ratna & Ors., AIR 1987 SC 71 , this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The person who is adversely affected must know why his application has been rejected." 45. In Institute of Chartered Accountants of India v. L.K. Ratna & Ors., AIR 1987 SC 71 , this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: "30.....................In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under S. 22 A of the Act. The exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a "finding". Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding". 46. The emphasis on recording reason is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. 47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. 47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. 48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 ; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394 ; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745 )." Mr. Sharad Kumar Srivastava, learned counsel for opposite parties on the other hand submitted that the petitioner had applied for recruitment claiming that he is dependent of ex-armyman late (Subedar) Awadh Raj Mishra and he had submitted the relationship certificate issued by the opposite parties, in this regard. The perusal of the said certificate shows that there is an addition in the said certificate to the extent "According to his high school certificate 1986 his date of birth is 25.12.1972". Moreover, in the said certificate at the bottom note was added to the extent that the date of birth recorded in the matriculation certificate will only be taken as valid proof of the candidates age. The contention is that as per the records of the opposite parties in the relationship certificate issued in this regard there is no mention of date of birth and the note which are the additions made in the said certificate. Mr. The contention is that as per the records of the opposite parties in the relationship certificate issued in this regard there is no mention of date of birth and the note which are the additions made in the said certificate. Mr. Sharad Kumar Srivastava, learned counsel for opposite parties vehemently submitted that the said additions were made by the petitioner in order to take benefit and there is strong presumption that the said additions were made after issuance of the said certificate. He has also submitted that even the authenticity of the certificate issued to the petitioner is doubtful. The contention is that since the petitioner was beneficiary of the said certificate, therefore, it was he who had done the manipulation in the said certificate. It is submitted that once the petitioner was found guilty of submitting forged certificate, his candidature was cancelled and as such he has no right to claim re-consideration on the basis of subsequent police report, the publication of Part-II Order regarding which letter dated 10.4.2008 was issued by the department. It is submitted that since the petitioner had made tempering in the record i.e. relationship certificate, the conduct of the petitioner does not make him suitable for enrollment in the armed forces which is a disciplined force and require persons of high value and integrity. In the last Mr. Sharad Kumar Srivastava, learned counsel for opposite parties submitted that the writ petition itself is not maintainable in view of Section 14 of the Armed Forces Tribunal Act, 2007 as after constitution of Armed Forces Tribunal the grievance of the petitioner, if any, is to be adjudicated before the Tribunal itself and the writ petition at the first stage is not maintainable. In support of his submissions Mr. Sharad Kumar Srivastava, learned counsel for opposite parties submitted that it is the constraint view of the Apex Court as propounded in various judgments that when a candidate suppresses material information, he shall not be allowed to seek employment. The said proposition of law has been held in the case of Delhi Administration vs. Sushil Kumar [1997 SCC (L&S) 492, Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav, [JT 2003 (2) SC 256, Sanjay Kumar Bajpai vs. Union of India, [ 1997 (1) SLR 803 . The said proposition of law has been held in the case of Delhi Administration vs. Sushil Kumar [1997 SCC (L&S) 492, Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav, [JT 2003 (2) SC 256, Sanjay Kumar Bajpai vs. Union of India, [ 1997 (1) SLR 803 . So far as the contention of learned counsel for opposite parties that the writ petition is not maintainable, suffice is to mention that the writ petition was transferred to Armed Forces Tribunal after its creation, however, there also objection regarding its maintainability was taken by the opposite parties themselves. Considering the said objections, the learned Tribunal by its order dated 19.5.2010 had held that the case is not maintainable before Armed Forces Tribunal and on the basis of the Judicial Order passed by the Tribunal, the paper book of the case was returned back to the High Court, as such, I am of the considered opinion that the petitioner cannot be rendered remediless. The objection regarding maintainability of the writ petition is as such misconceived. The order dated 19.5.2010 passed by the Tribunal is reproduced as under: _____________