BEERENDRA KUMAR VERMA v. FOOD CORPORATION OF INDIA
2016-09-20
P.K.S.BAGHEL
body2016
DigiLaw.ai
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is a candidate for the appointment to the post of Assistant Grade-III (General). The Food Corporation of India, the first respondent issued an advertisement on 23rd January, 2015 calling applications from the candidates to a large number of posts mentioned in the advertisement. Total 4318 posts were advertised in the said advertisement. Pursuant to the advertisement, the petitioner made an application for appointment on the post of Assistant Grade III. 2. It is stated that essential qualification mentioned in the advertisement was Bachelor Degree in any discipline alongwith working experience in computer. The petitioner claims that he fulfills the eligibility criteria, he did his Bachelor of Science (Honours) in the year 2008 from Bundelkhand University. He claims that he has done a Computer Foundation Course from the same University and has a certificate of Course on Computer Concepts (CCC) issued by the National Institute of Electronics and Information Technology (NIELIT). The petitioner claims that he is under the Scheduled Caste category. 3. The petitioner qualified the written examination and he ranked 56 in the order of merit. It is stated in paragraph-8 of the writ petition that a call letter was issued to the petitioner on 31st December, 2015 and he appeared with his original documents on the scheduled date, time and place i.e. 20th January, 2016 at 01.00 p.m. in the office of the first respondent and placed all such documents, which he has brought on record as annexure-2 to the writ petition, before the authority. After perusing the same, the authority was fully satisfied, however, by an order dated 05th June, 2016 the petitioner came to know that the first respondent has declared the final result and the petitioner’s candidature has been cancelled by a cryptic order. 4. At the time of moving of this writ petition, on 27th June, 2016 the Court has directed to put up this case as fresh on 05th July, 2016. On 05th July, 2016 the first respondent filed a short counter-affidavit without adverting to the material facts averred in the writ petition. The stand taken in the short counter-affidavit is that the petitioner, at the time of verification, could not submit the caste certificate hence his candidature has been cancelled. 5.
On 05th July, 2016 the first respondent filed a short counter-affidavit without adverting to the material facts averred in the writ petition. The stand taken in the short counter-affidavit is that the petitioner, at the time of verification, could not submit the caste certificate hence his candidature has been cancelled. 5. A rejoinder-affidavit to the short counter-affidavit has been filed, wherein the said fact has been denied and the petitioner has brought on record the caste certificate issued by the competent authority i.e. the Tehsildar, Sadar, Kanpur Nagar dated 29th October, 2013 as annexure-2 to the rejoinder-affidavit. The same document has been appended by the petitioner alongwith the writ petition also. 6. It is contended on behalf of the petitioner that the impugned order has been passed in utter disregard to the principles of natural justice as no opportunity was afforded to the petitioner before cancelling his candidature and it does not contain any reason. Learned counsel for the petitioner has placed reliance on the judgements of the Supreme Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and another, Civil Appeal No. 1691 of 2016 and Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405 . 7. Learned counsel for the respondents Sri S.K. Mishra submits that there is no requirement to assign any reason while cancelling the candidature of a candidate. The reasons have been mentioned in the short counter-affidavit. He further submits that the Corporation has been authorized by the Parliament to frame statutory rules hence the statutory rules have been framed by the Food Corporation of India. It was further submitted that the condition mentioned in the advertisement is as sacrosanct as the law and it has statutory flavour. No other submission has been made. 8. The learned counsel for the respondent has drawn the attention of the Court to an order passed by this Court to implead the selected candidates. The learned counsel for the petitioner submits that since the grievance of the petitioner, at this stage, is that the authority may be directed to pass a speaking order after giving opportunity to the petitioner, as such, there is no need to issue notice to the candidates for whose impleadment, the application was filed by the petitioner. 9. I have heard learned counsel for the parties and considered the rival submissions.
9. I have heard learned counsel for the parties and considered the rival submissions. 10. The petitioner has demonstrated that he possesses the essential qualification mentioned in the advertisement. The advertisement for the post of Assistant Grade-III requires the following qualification. “Bachelor degree in any discipline alongwith the work experience in Computer.” 11. In regard to his qualification, the petitioner has brought on record a xerox copy of the Degree of B.Sc. (Honours) issued in 2008 by the Buldelkhand University and the CCC certificate which has been issued by the NIELIT. 12. Indisputably, the petitioner appeared in the written test and he has qualified it. The averment made by the petitioner in the writ petition that his rank is 56 out of 334 posts is unrebutted in the short counter-affidavit. It was submitted that even if the petitioner’s certificate is ignored, the petitioner has secured more marks than a candidate of General Category, therefore, he could have been treated as a General Category candidate. The final merit list has not been brought on the record by the first respondent, thus the averment made in the writ petition that the petitioner ranked 56 in the merit list stands uncontroverted. 13. The submission of learned counsel for the petitioner that the caste certificate was produced by him, which he has brought on record earlier, also merit acceptance. The said submission was made in paragraph-8 of the writ petition which has also not been denied in the short counter-affidavit. The next submission of the learned counsel for the petitioner that the order impugned does not contain any reason also merit acceptance. The impugned order is so cryptic and skeletal that entire order can be extracted below: “You are not found eligible for the post applied by you as you have not fulfilled the eligibility criteria/conditions laid down in the Advertisement No. 3/2015-FCI Category-III.” 14. A simple reading of the impugned order clearly indicates that no reason has been assigned while rejecting the candidature of the petitioner. It is not mentioned in the order that which criteria/condition is lacking. 15. Insofar as the minimum qualification mentioned in the advertisement is concerned, the petitioner appears to possess the essential qualification as he is graduate in Science and has also CCC certificate from a recognized institution. 16.
It is not mentioned in the order that which criteria/condition is lacking. 15. Insofar as the minimum qualification mentioned in the advertisement is concerned, the petitioner appears to possess the essential qualification as he is graduate in Science and has also CCC certificate from a recognized institution. 16. In regard to the submissions of learned counsel for the respondents that the reason has been mentioned in the short counter-affidavit that the petitioner failed to produce the document, cannot be accepted on two grounds: (i) the reason must be recorded in the impugned order as it cannot be supplemented by an affidavit. The Supreme Court in Mohinder Singh Gill (supra) has held that the reasons cannot be supplemented subsequently by filing affidavits. The relevant part of the judgement is extracted below: “8. ...when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out....” 17. The Supreme Court in a long line of decisions has settled that the necessity of recording reason of an executive action is a part of natural justice and in the present date set-up judicial review of administrative action is expanding day by day. The administrative, quasi judicial authorities have to justify its action in various fields of the public law. The reason should also be communicated to the affected party. 18. In the case of Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 , the Court has held as under: “27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. ... 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 the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making.
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 the 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.” 19. The Supreme Court in the case of Kranti Associates Private Limited and another v. Masood Ahmed Khan and others, (2010) 9 SCC 496, has culled out the following principles for the necessity of recording reasons by the administrative quasi judicial authorities: “47. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency.
All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor, (1987) 100 Harward Law Review 731-37. n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, (1994) 19 EHRR 553, EHRR, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.” 20. Applying the aforesaid principles of law laid down by the Supreme Court at the case in hand, I find the impugned order is completely bereft of the reasons, hence the impugned order is unsustainable. The respondents have tried to supplement the reasons by way of a short counter-affidavit. (ii) In addition to above, the petitioner has made a categorical averment in paragraph No. 8 of the writ petition that he had produced the caste certificate at the scheduled date i.e. 20.1.2016. This fact has not been denied in the short counter-affidavit.
The respondents have tried to supplement the reasons by way of a short counter-affidavit. (ii) In addition to above, the petitioner has made a categorical averment in paragraph No. 8 of the writ petition that he had produced the caste certificate at the scheduled date i.e. 20.1.2016. This fact has not been denied in the short counter-affidavit. In fact the present writ petition was entertained by this Court in the month of June, 2016 and more than three months have elapsed but no counter-affidavit giving reply to all the paragraphs has been filed by the respondents. Thus the statement made in paragraph No. 8 of the writ petition stands unrebutted. 21. Pertinently, the petitioner has brought on record his caste certificate which was issued on 29.10.2013, much before 20.1.2016. He has relied on a judgement of the Supreme Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board and another, Civil Appeal No. 1691 of 2016. In the said judgement, the Supreme Court referred a judgement of Delhi High Court in the case of Pushpa v. Government of NCT of Delhi and others, Writ Petition (C) No. 9112 of 2008 wherein the Delhi High Court followed the judgement in the case of Tej Pal Singh and others v. Government of NCT of Delhi, ILR 2001 Delhi 298. 22. The Delhi High Court in Pushpa (supra) has held that if a person is of reserved category he is so by birth and not by acquisition of this category because of any other event happening at a later stage. A certificate issued by the competent authority of a reserved candidate to this effect is only an affirmation of fact which is already in existence. The purpose of such certificate is to enable the authorities to believe in the assertion of the candidate that he belongs to ‘SC’ category and act thereon by giving the benefit to such candidate for his belonging to ‘SC’ category. The Court has further held that once the certificate is issued then it is clear that the candidate belongs to the said category and it cannot be said that he has acquired the status of SC only on the date of issuance of the certificate.
The Court has further held that once the certificate is issued then it is clear that the candidate belongs to the said category and it cannot be said that he has acquired the status of SC only on the date of issuance of the certificate. Thus the plea taken in the counter-affidavit that the caste certificate is of the latter point, cannot be accepted as the caste certificate has been brought on the record alongwith the writ petition and in short counter-affidavit it is not the stand of the respondent that on an enquiry, the said certificate has been found to be fabricated or forged. 23. As a sequel to the above, in my view the impugned order dated 5.6.2016 needs to be quashed for the reasons mentioned hereinabove, it is accordingly quashed. The matter is remitted to the authority concerned/respondent No. 1 to furnish opportunity to the petitioner and pass a speaking order expeditiously, preferably within four weeks from the date of communication of this order. 24. The writ petition is, accordingly, allowed. 25. No order as to costs.