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2016 DIGILAW 589 (CAL)

Minati Das v. State of West Bengal

2016-07-29

SAMBUDDHA CHAKRABARTI

body2016
JUDGMENT : Sambuddha Chakrabarti, J. The subject matter of challenge in this writ petition is an order of termination of the job of the petitioner who was once appointed as an Anganwadi Worker. 2. The Integrated Child Development Project Officer, Ratua-I, Malda, issued a notification dated February 17, 2006 inviting applications for the post of Anganwadi Workers. The qualification for the post was Madhyamik or its equivalent examination. It was specifically laid down therein that a graduate or persons holding higher qualifications would not be eligible for the said post. The eligibility condition contained a further rider, i.e. if a candidate suppressed her qualification and was selected, her candidature/appointment would be cancelled forthwith the moment proof with regard to the same would be obtained without assigning any reason. 3. The petitioner is a graduate but she was eventually selected for the said post in the year 2007. 4. On December 19, 2007, the respondent No. 5 herein issued a notice by which the petitioner was intimated that she had completed her graduation in the year 2004 and she was directed to show cause why legal action would not be taken against her as she had violated the stipulations contained in the advertisement. It was also mentioned that by suppressing her qualification, she had misled and played fraud upon the Selection Committee. The petitioner gave a reply which not having been found satisfactory, the respondent No. 5 by a letter dated January 4, 2008 had cancelled her appointment in terms of the relevant Government Order governing the field. 5. As mentioned before, the said order is under challenge in the present writ petition. 6. The writ petition is plainly not maintainable primarily for two reasons. First, the petitioner has approached the Court more than 7½ years after her service was terminated. Even if, there is no fixed time limit for filing a writ petition, the Court expects a litigant to be diligent in approaching the Court. There is no explanation for this unusual delay in filing the writ petition, except that she came across a news item in a newspaper. That can hardly by any explanation for the huge delay in approaching the Court. The worth of an explanation cannot be judged on the passing of an order in an uncertain future and its reporting by press. That can hardly by any explanation for the huge delay in approaching the Court. The worth of an explanation cannot be judged on the passing of an order in an uncertain future and its reporting by press. Even if the maximum permissible limit provided in the schedule to the Limitation Act for obtaining a relief in a civil Court is taken to be a guidance for determining the delay in filing the writ petition, the petitioner had approached this Court after a long expiry of the said period also. Thus, on the ground of delay alone the writ petition is not entertainable. 7. I could have set the matter at rest on the ground of delay only. But since the petitioner and Anganwadi workers whose services have been similarly terminated for identical reasons want to make out a case based on law, it is necessary to address the issue on the merit as well. 8. I have heard Mr. Dey, the learned advocate for the petitioner and did find nothing to justify the sustenance of the writ petition except some judgments of this Court which are easily distinguishable on facts. The petitioner very heavily relies on the Special Bench Judgment in the case of Rina Dutta & Ors. Vs. Anjali Mahato & Ors., reported in 2010 (2) CLJ (Cal.) 321 for a proposition that the higher qualification cannot operate as a bar to employment to a certain post and, therefore, the State action was bad in law. 9. Based on the Special Bench Judgment, a Division Bench of this Court delivered a judgment in the case of Madhuri Roy & Ors. Vs. State of West Bengal & Others., reported in 2013 (3) WBLR (Cal) 560. There also the same question cropped up for consideration and the Division Bench held that in view of the Special Bench Judgment and specifically in view of the subsequent modification of the guidelines whereby the restriction on employment of a candidate possessing a graduation degree had been lifted, no penal action could be taken against Anganwadi workers whose services have been terminated for nondisclosure of their qualifications in their application forms. 10. The alteration in the future guidelines by the State Government as an employer is not a relevant issue in the present case. The guidelines were modified with effect from April 1, 2012. 10. The alteration in the future guidelines by the State Government as an employer is not a relevant issue in the present case. The guidelines were modified with effect from April 1, 2012. The case of the present petitioner is to be governed by the rules and conditions extant on the date she applied and all the terms and conditions as laid down therein apply with all their rigours to all the candidates who had applied pursuant to the said advertisement. 11. There has undoubtedly been a suppression of the higher qualification that the petitioner possessed on the date of the issue of the advertisement, let alone the date on which she applied. Otherwise her candidature would not have been considered by the authority at all. The petitioner has not annexed the advertisement which contained the stipulation about the ineligibility of graduates. Only the call letter for the interview has been annexed to the writ petition. Even that letter had specifically altered that if any candidate suppressed any fact in respect of the educational qualification, age etc, her appointment would be liable to be cancelled and terminated forthwith. 12. In the case of Monoj Kumar Vs. govt. of NCT of Delhi & Ors., reported in (2010) 11 SCC 702 , the Supreme Court had specifically held that a candidate furnishing false or incomplete information or withholding or concealing any material information in the application can be debarred from securing employment. Even if such a candidate is appointed, his service will be legally terminated for furnishing false information. The application of the ratio laid down in this judgment leaves none to lull in any doubt that the service of the petitioner was rightly terminated by the respondents. 13. A close reading of the judgment in the case of Rina Dutta (supra), makes it thoroughly inapplicable to the facts of the present case. In that case, the scheme under which the advertisement was issued provided that if a candidate suppressed any material information or furnished false information with regard to age, educational qualification, residential address etc., her appointment might be terminated at any time. Even if this was contained in the relevant scheme, it was not so mentioned in the advertisement which was published pursuant thereto. On the contrary, what was mentioned was that merely matriculates were eligible to apply and the graduate women were not meant for that post. Even if this was contained in the relevant scheme, it was not so mentioned in the advertisement which was published pursuant thereto. On the contrary, what was mentioned was that merely matriculates were eligible to apply and the graduate women were not meant for that post. The Special Bench had held that this sentence could not be construed as a prohibition against graduate women from applying for the post nor could it be a disqualification for a graduate woman to hold the post of an Anganwadi worker after she had been appointed. The primary reason for rejection of the contention of the State was that the advertisement did not specifically debar or disqualify graduate women from applying to the post of Anganwadi worker and as such on the touchstone of the advertisement those appointments could not be held to be illegal. However, it has also to be borne in mind that the Special Bench clarified the right of the employer that it was open to them to make a provision for disqualification of candidates possessing higher qualification than the prescribed one. The Court gave liberty that in future the employer might specifically provide for the same in the rules and in the advertisement that persons with higher qualification would not be considered eligible. 14. And this is precisely what has happened in the present case. On this very major and crucial important factual aspect that Rina Dutta and all other judgments delivered following Rina Dutta, without considering the differences in fact situations, are distinguishable. Here there was a specific stipulation that candidates possessing graduate qualification would be ineligible. This was through various means repeatedly reminded to the candidates. There is no statement in the writ petition that the petitioner actually and rightly disclosed her qualification in the application form. The reasons for the same are not far too seek. So there was a positive suppression of material fact by the petitioner from the stage of filing of the application itself for securing the benefit of employment. 15. In view of the very specific stipulation in the advertisement pursuant to which the petitioner applied, I would not consider it to be a mere suppression. It amounted to making false declaration and playing fraud upon the employer inducing them to believe that the petitioner possessed merely Madhyamik qualification. 15. In view of the very specific stipulation in the advertisement pursuant to which the petitioner applied, I would not consider it to be a mere suppression. It amounted to making false declaration and playing fraud upon the employer inducing them to believe that the petitioner possessed merely Madhyamik qualification. Since the advertisement was silent to that effect in the case of Rina Dutta (supra) about the disqualification of possessing a higher qualification that was the real reason for not debarring a candidate from applying for the concerned post. But the ratio of Rina Dutta (supra) did not end at that. When the Special Bench gave liberty to the employer to provide for a stipulation for non-eligibility of graduate candidates the principle of law decided assumed a complexion completely different from the one for which the judgment is generally taken to be. A proper reading of the judgment leaves no manner of doubt that it is also a part of the ratio decided therein that once the State clarifies the provision in the advertisement disqualifying a graduate from applying for the post concerned the State as the employer can successfully maintain the subsequent action of terminating the employment of a candidate making wrongful suppression. This part of the contingent ratio of the case is allowed to be frequently glossed over making room for an application of the principle decided in Rina Dutta (supra) with reference to the facts of that case oblivious of the alternation in the conditions of employment introduced by the State in the advertisement itself. 16. Mr. Majumdar, the learned Assistant Additional Advocate General, has relied on a judgment in the case of Mithu Das Vs. the State of West Bengal & Ors., reported in 2013(3) CH N(Cal) 341. This is the first judgment taking a view contrary to the judgments favouring the terminated employees despite there being a restrictive clause specifically mentioned in the advertisement. 17. Subsequently, another learned Single Judge of this Court in Shampa Dey Vs. State of West Bengal & Ors., reported in 2014(3) CHN (Cal) 678 has taken the same view and held that the respondents were justified in issuing the order of termination without giving the petitioner an opportunity of being heard when the petitioner held a graduate degree. 17. Subsequently, another learned Single Judge of this Court in Shampa Dey Vs. State of West Bengal & Ors., reported in 2014(3) CHN (Cal) 678 has taken the same view and held that the respondents were justified in issuing the order of termination without giving the petitioner an opportunity of being heard when the petitioner held a graduate degree. Subsequently, an appeal (M.A.T. 932 of 2014) was taken from the judgment in the case of Shampa Das (Supra) before a Division Bench. The Division Bench by an order dated September 1, 2014 had specifically held that if the candidates were aggrieved by the restriction of qualification imposed, they ought to have challenged the same in the year 2006 when the advertisement was published. None of them did so. After applying for the post concealing their highest educational qualification and after getting selected for the post, they had approached the Court four years later. 18. The Division Bench approached it from a socio-economic angle as well. In a country plagued by the problems resulting from over population and huge unemployment if posts meant for lesser educational qualification are taken away by the candidates with higher qualification, it will be impossible for the persons with lesser educational qualification to enter into service with regular pay. Qualifications are prescribed according to the work that is required to be discharged. The Division Bench observed that undoubtedly a person holding a graduate degree can discharge the duties of an Anganwadi worker but not vice versa. In other words, persons possessing Madhyamik qualification cannot discharge the duties of a post which requires a graduate degree and in this context such employments made for candidates of lesser educational qualification should not be allowed to be grabbed by candidates with higher qualification. 19. The Division Bench also dealt with the judgment of other coordinate benches and held in the light of the law laid down by the Apex Court that a person who enters into the service or any job on the basis of a wrong declaration shall not be allowed to continue in such service. There is no obligation on the part of the employer to give reason for termination or to give opportunity before termination because the very obligation cast upon the candidate is violated by her. Therefore, they have no right to question the action of the employer in such a situation. 20. There is no obligation on the part of the employer to give reason for termination or to give opportunity before termination because the very obligation cast upon the candidate is violated by her. Therefore, they have no right to question the action of the employer in such a situation. 20. In case of Mithu Das (supra), a Single Judge had occasion to deal with the principles of natural justice and held that in a situation like this, there have no application as no purpose would be served by directing the respondents to give the petitioner an opportunity of being heard. In the case of S.L. Kapoor Vs. Jagmohan Das, reported in AIR 1981 SC 136 , the Supreme Court had held that where the admitted facts lead to one judgment and under the law only one penalty is permissible, the Court may refuse to compel observance of natural justice not because it is not necessary to observe natural justice but because the Courts do not issue futile writs. Lord Denning MR in the case of R Vs. the Secretary of State for Home Department, ex. Mughal, reported in (1973) 3 AllER 796 observed that the rules of natural justice must not be stretched too far, only too often people who have done wrong, seek to invoke the rules of natural justice so as to avoid the consequence. 21. Mr. Majumdar also relied upon a Division Bench judgments in the case of State of West Bengal Vs. Chaitali Das, reported in 2015 (5) CHN(Cal) 132 where also the advertisement specifically prohibited graduates from applying for the post and the Division Bench based on this very pre-eminent and unmistakable distinction of fact held that the judgement in the case of Rina Dutta (supra) is of no help to the petitioner when the advertisement was very specific. 22. Although after referring the different judgments on the point, it may not be strictly necessary to refer to what a learned Single Judge has stated but the judgment in the case of Kakan Dutta Vs. State of West Bengal & Ors., reported in 2015(2) CHN(Cal.) 303 may be referred to as the learned Single Judge had specifically held that the petitioner had no right to be absorbed when the relevant advertisement made her clearly ineligible for that. The case of Madhuri Roy (supra) also came up for consideration before the learned Single Judge. State of West Bengal & Ors., reported in 2015(2) CHN(Cal.) 303 may be referred to as the learned Single Judge had specifically held that the petitioner had no right to be absorbed when the relevant advertisement made her clearly ineligible for that. The case of Madhuri Roy (supra) also came up for consideration before the learned Single Judge. Sanjib Banerjee, J had observed that : “In such circumstances, if the dictum in Rina Dutta were to be applied to the facts in Madhuri Roy, the erroneous appointments ought to have been annulled as the relevant notification and the letters of appointment contained express provisions of overqualified candidates being ineligible for the post.” 23. We may conclude our discussion relying on the case of Prakash Chandra Minna Vs. State of Rajasthan, report in (2015) 8 SCC 484 . In case the candidates were aware of the advertisement and did not have the qualification. The Supreme Court had held that the process of recruitment was initiated through advertisement inviting applications which did not indicate that equivalent or higher qualification holders were eligible to apply nor were the equivalent qualifications reflected in the recruitment rules or the Government Orders of the relevant time. 24. Mr. Dey taking a clue from the judgment in the case of Rina Dutta (supra) wanted to build an argument that the authority of the employer to lay down the maximum qualification must be justified by the respondents and the respondents not having justified the same, their action in terminating the petitioner from her service was bad. 25. The question of justifying the eligibility criteria set out in the rules comes only when the same is under challenge. The petitioner did not challenge the eligibility as laid down in the relevant advertisement. She took full advantage of the advertisement, perhaps more advantage than what she was permitted inasmuch as she suppressed a very material fact. That apart, the reason for the justification has already been provided by the Division Bench in case of Shampa Das (supra). What the petitioner did was absolutely unbecoming of an honest candidate expected to lay bare the qualifications before the Selection Committee. What the respondents did was to act in terms of the relevant provisions of law. The Court does not find any fault with any action on the part of the respondents. 26. The last challenge of Mr. What the petitioner did was absolutely unbecoming of an honest candidate expected to lay bare the qualifications before the Selection Committee. What the respondents did was to act in terms of the relevant provisions of law. The Court does not find any fault with any action on the part of the respondents. 26. The last challenge of Mr. Dey is that many persons have been given appointment with graduate qualifications after 2012. Therefore, the State cannot terminate the petitioner from service because she is a graduate. 27. The 2012 Rules has lifted the ban on the appointment of graduates as Anganwadi workers. The two situations were so very different that, with due respect to the submission of the petitioner, I must frankly confess it to be a surprise to me. The petitioner having resorted to suppresio veri had acted in a manner that clearly established suggestio falsi. One can never gloss over the fact that the petitioner made false declaration to the employer and induced the Selection committee to select her for the post taking her to be a non-graduate. The situation obtaining after the 2012 Rules did not prevail when the petitioner applied. She also did not apply under those Rules and suppressed her highest qualification only because those Rules did not permit the graduates to apply. This was a suppression with a purpose to obtain an employment to which the petitioner is not entitled to. To strike down the State action under the circumstances would send a message loud and clear that dishonesty pays and pays handsomely. 28. Thus, the writ petition is thus entirely devoid of merits and the same is dismissed. 29. Considering the facts of the case particularly, the exercise undertaken by the petitioner to challenge the termination by suppressing the materials facts not only to the former employer but also in the present writ petition, I am of the view that the dismissal should be accompanied by costs which is assessed at Rs. 10,000/-. 30. The petitioner is directed to make the payment of the costs to the respondent No. 5 within a period of three weeks. In default, the respondent No. 5 shall be entitled to recover the same from the petitioner in accordance with law. Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date.