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2013 DIGILAW 146 (PAT)

Sachindra Kumar v. State Of Bihar

2013-01-31

SAMARENDRA PRATAP SINGH

body2013
ORDER Heard counsel for the petitioner, the State, the Respondent no.4 as well as learned counsel appearing on behalf of Respondent no.2, Indira Gandhi Institute of Medical Sciences. 2. The petitioner seeks a direction to the respondents to withdraw the office order dated 25.8.2012 contained in memo no.3859/Adm. cancelling appointment of the petitioner. 3. The facts of the case are as follows; Indira Gandhi Institute of Medical Sciences (hereinafter referred to as "the IGIMS") published an advertisement bearing advertisement no.10 IGIMS (Estt) 2010 in a daily local newspaper inviting applications for various posts including five posts of Technician (Radiology) Grade II. Three of such posts of Technician were earmarked for general category, whereas one post each was reserved for Scheduled Caste and Backward Caste category. We are concerned with the sole post reserved for Backward category. A copy of the advertisement is contained in Annexure-1. 4. The petitioner applied under B.C. Category. He was called for an interview vide letter dated 29.8.2010. The petitioner appeared in the interview on 16.9.2011. On the recommendation of the Selection Committee, the petitioner was appointed against the sanctioned post of Technician (Radiology) under B.C. Category vide appointment letter dated 18.10.2011. In view of the appointment letter, the petitioner resigned his earlier job at Curie Abdur Razzaque Ansari Cancer Institute, Ranchi (hereinafter referred to as “the Cancer Institute?) where he was working as R.T. Technician. The petitioner joined his new assignment at IGIMS on 25.10.2011. 5. Respondent no.4 who too belonged to BC category, challenged the appointment of the petitioner vide C.W.J.C. No. 11391 of 2012 on the ground of having more marks than the latter in the selection test. She stated that her plea was that she was wrongly considered under general category in place of BC Category, merely because she had filled up the form stating that she belongs to B.C. (Female). This Court vide order dated 6.7.2012 disposed of the writ application with the following observations: “The petitioner appears to have represented pointing out the aforesaid facts in her representation at Annexure-3. Prima facie, the Court finds substance in the submission that the respondents cannot give an interpretation to reservation policies in a manner which completely deprives the petitioner the benefit of reservation and the benefit of having qualified on merit also simultaneously. Prima facie, the Court finds substance in the submission that the respondents cannot give an interpretation to reservation policies in a manner which completely deprives the petitioner the benefit of reservation and the benefit of having qualified on merit also simultaneously. Let the respondents dispose off the representation by a reasoned and speaking order within a maximum period of six weeks from the date of receipt/production of a copy of this order”. 6. On consideration of representation of respondent no.4, the IGIMS vide memo no.3859 (Administration) dated 25.8.2012 (Annexure-7) withdrew/cancelled the appointment of the petitioner which is impugned in this writ application. The petitioner has challenged the impugned order on the ground that no notice was issued to him before cancelling his appointment. He next submits that he had to pay a sum of Rs.50,000/- to the Cancer Institute towards liquidated damage to cover up training expenses as he left his job within two years of joining. 7. The petitioner submits that there was a condition in the bond that if he leaves the job within two years, he had to pay a sum of Rs.50,000/- to make up for the expenditure incurred on his training. He further submits that there was no category as B.C.(Female) and as such the respondent no.4 was rightly considered under general category. Mr. Lalit Kishore, learned Senior Counsel appearing on behalf of the IGIMS states that the petitioner applied under B.C. Category and respondent no.4 applied under B.C.(Female) category. 8. The Selection Committee of the IGIMS assessed the merit of the candidate on the basis of performance in the interview on the scale of 25 including knowledge of the subject, working experience, clinical knowledge and personality of the candidate along with writing skill as well as educational qualification. Referring to paragraph 5 of the counter affidavit, learned counsel submits that the Selection Committee recommended the following names in order of merit for the post of Technician (Radiology) Grade II. The relevant extract is quoted herein below: Under Unreserved Category Sl.no. Name of Selected candidate Marks obtained 1. Soni Kumari 20 2. Amarjit Kumar Singh 19 3. Chandra Mohan Kumar 17 4. Miss Kiranwala 16 Under Scheduled Caste Category 5. Guddu Kumar 16 6 Nilambuj Kumar Bhanti 15 Under BC Category 07 Sachindra Kumar 14 9. The relevant extract is quoted herein below: Under Unreserved Category Sl.no. Name of Selected candidate Marks obtained 1. Soni Kumari 20 2. Amarjit Kumar Singh 19 3. Chandra Mohan Kumar 17 4. Miss Kiranwala 16 Under Scheduled Caste Category 5. Guddu Kumar 16 6 Nilambuj Kumar Bhanti 15 Under BC Category 07 Sachindra Kumar 14 9. Learned counsel for the IGIMIS submits that as respondent no.4 had applied under B.C. (Female) category and no post was advertised under that category, she was considered under unreserved category, though she had secured the highest marks in B.C. Category. Accordingly, the petitioner who had the next higher marks in B.C. Category, was appointed on contract basis for 11 months. Respondent no.4 filed a writ application wherein respondent (IGIMS) was directed vide order dated 6.7.2012 to dispose of her representation. The IGIMS considered the matter afresh in view of observation of this Court. 10. Learned counsel for IGIMS submitted that the Institution under bonafide confusion had earlier considered the case of respondent no.4 under general category in place of B.C. category which was an error. The error was corrected by the impugned order dated 25.8.2012. 11. Respondent no.4 adopted the argument of learned senior counsel appearing for the IGIMS. 12. I would broadly agree with the submission of the petitioner that if any order administrative or otherwise visits an incumbent holding a post with civil consequences, he ought to be provided a prior opportunity of hearing before taking any such action particularly if it purports to deprive one, his job. However, if a subsequent order seeks to correct or modify an error apparent on face of record or if providing an opportunity of show cause would be an empty formality and an exercise in futility, the adherence to principle of natural justice can be dispensed with in appropriate case. Notwithstanding the category in which the case would fall, in the facts of the case, I decided to hear the parties in detail on merit so that no prejudice may be caused to the petitioner who was pre-empted of hearing before issuance of the impugned order. 13. It is not in dispute that respondent no.4 belongs to BC Category. Merely because against column of class/category she filled the form as B.C.(Female), she should not have been treated under general category as no category of B.C. (Female) was prescribed in the advertisement. 13. It is not in dispute that respondent no.4 belongs to BC Category. Merely because against column of class/category she filled the form as B.C.(Female), she should not have been treated under general category as no category of B.C. (Female) was prescribed in the advertisement. The mistake was a mere an irregularity which cannot deprive a candidate the benefit of reservation to which one is entitled. It is not the case of the petitioner that respondent no.4 did not belong to B.C. Category or filled her application under category other than B.C. Category. On the other hand respondent no.4 filled up her application form stating that she belongs to B.C.(Female). She presumably wrote female in bracket after indicating her category, as she was a female. The substantive right of a candidate cannot be defeated on ground which is superficial and does not offend the conditions of the advertisement in any manner. Treating respondent no.4 under general category, where ever the advertisement did not prescribed any category as B.C. (Female) was an error as she did belong B.C. Category and a female too. The writing of gender after mentioning the category could not bring a ground for considering her under general category. There was no category like B.C. (Female) or any post reserved for B.C. (Female). Any one belonging to B.C. Category whether one was male or female would only figure under B.C. Category and cannot be placed under general category merely because the gender of the candidate was also mentioned after category. The respondent no.4 did not make any misrepresentation. Thus, the respondent IGIMS did not commit any illegality in recalling the appointment of petitioner in favour of respondent no.4. 14. The petitioner next contends that on account of mistake and fault on part of the IGIMIS, he not only lost his earlier job but also had to cough up Rs.50,000/- in order to liquidate the damage to make for the expenditure incurred in his training by the Cancer Institute as he resigned from the job within two years of his joining. As per the terms of bond, the petitioner would have to pay Rs.50,000/- to the Cancer Institute, Ranchi if he left the job within two years of his joining. 15. As per the terms of bond, the petitioner would have to pay Rs.50,000/- to the Cancer Institute, Ranchi if he left the job within two years of his joining. 15. The respondent IGIMS would argue that the petitioner was provided not only residential accommodation but also received handsome salary which would more than off set the loss he may have incurred in repaying Rs.50,000/- to the Cancer Institute, Ranchi. 16. I find it difficult to accept the submissions of IGIMS that the petitioner was not a loser by even repaying Rs.50,000/- to his former employer, as he was handsomely paid at Patna. 17. The petitioner is definitely a loser as he left his earlier job at Cancer Institute at Ranchi to join IGIMS in view of appointment offer. The impugned order nullifies the appointment. The petitioner cannot get back his earlier job, as he has already withdrawn from there. Loss of job directly affects ones living, and a right to meaningful existence. The petitioner as such is entitled to compensation which is quantified at Rs.25,000/- to meet the immediate need which must by paid by the IGIMS to the petitioner within three months from the date of receipt/production of a copy of this order, failing which the respondents would be liable to pay interest. If petitioner is not satisfied with the amount, it would be open for him to take resort to remedy available under the common law. The petitioner would be at liberty to apply afresh against any future vacancy which would be considered on its own merit without any prejudice. 18. With the aforesaid observations and directions, this writ application stands disposed of.