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2017 DIGILAW 360 (GUJ)

Minaxiben Babulal Solanki v. Bank of Baroda

2017-02-13

G.R.UDHWANI

body2017
JUDGMENT : G.R. Udhwani, J. 1. The petition is filed to challenge the order dated 22/09/2015 withdrawing the order of appointment dated 01/05/2015 before the petitioner could resume on the post offered to her by respondent - Bank of Baroda. By the order dated 01/05/2015, the petitioner was offered an appointment in the post of Single Window Operator 'A' in clerical cadre of the respondent - Bank. The impugned order is couched thus: "Madam, 1. This has reference to your above letter submitted in reply to our letter advising you to show-cause as to why the offer of the appointment letter dated 25.05.2015 should not be withdrawn and cancelled for unsatisfactory antecedents. 2. The offer of employment, as conveyed to you is subject to the conditions stipulated in clause 7 thereof which includes production of experience certificate and relieving order from your erstwhile employer. Clause 6 of the order letter also stipulates that your confirmation in the Bank's service is subject to verification of your character and antecedents provided the same are found satisfactory. Clause 7 further stipulates that the information/documents referred to in the said paragraph shall be deemed to be material for the purpose of your appointment. 3. Your above reply in particular Annexure-A thereto reveals that your services were terminated by Saurashtra Gramin Bank by their Order dated 02/07.2014 for your having made false allegations of sexual harassment, and your being considered unfit for confirmation in their employment, besides several acts of omission/commission on your part such as absence without approval from the competent authority, bringing undue pressure on the Bank's officers by using political clout and conduct which adversely affects the functioning of the Bank. 4. In view of the above unsatisfactory antecedents that have come our notice, we are constrained to withdraw the offer of appointment as per our letter dated 25.05.2015 made to you." 2. The appointment of the petitioner was subject to various terms and conditions including the condition specified in the order of appointment being condition No. 6 that "Your confirmation in Bank's service is subject to verification of your character and antecedents provided the same are found satisfactory." 3. It appears that after releasing the order of appointment, but before the petitioner could resume, certain antecedents influenced the respondent -Bank to withdraw the order of appointment. It appears that after releasing the order of appointment, but before the petitioner could resume, certain antecedents influenced the respondent -Bank to withdraw the order of appointment. It is stated that respondent-Bank had come to know that the petitioner had certain antecedents which may render her unsuitable for the job in question and therefore, on inquiry the petitioner produced certain documents on the basis of which the further inquiry was made with her current employer- Saurashtra Gramin Bank which submitted a detailed report to the respondent pointing out the facts and circumstances under which the services of the petitioner were terminated by the said Bank. Broadly speaking, the report indicated two things (01) that even though she was only transferred from one branch to another, she repeatedly insisted for reasons for her transfer and (02) that she made serious bald allegations of sexual harassment against one colleague of hers to which she did not withstand by supporting the same by her statement when called upon. 4. Eventually, the said Bank terminated the services of the petitioner without holding inquiry; being a probationer which however seems to have been set aside by this Court in the petition filed by the petitioner as confirmed in the Letters Patent Appeal. This Court is not much concerned with the facts of the said proceedings and therefore, no elaborate discussion is necessary. 5. Learned Counsel for the petitioner submitted that the termination was set aside and the said Saurashtra Gamin Bank also lost in LPA and therefore, allegations made against her no more survive and were totally erased and therefore, it was not open for the respondent-Bank to rely upon the said allegations. It was argued that once found eligible on merits, the respondent could not disqualify her only on the basis of so-called allegations which were not proved to be right as she succeeded in petition and LPA. 6. Vehemently opposing the petition, learned Counsel for the respondent-Bank while relying upon the report of the Saurashtra Gramin Bank, as also the decision rendered by the Supreme Court in Delhi Administration through its Chief Secretary & Ors. 6. Vehemently opposing the petition, learned Counsel for the respondent-Bank while relying upon the report of the Saurashtra Gramin Bank, as also the decision rendered by the Supreme Court in Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar [ (1996) 11 SCC 605 ] would contend that even after selection of a person in public employment on merits, suitability is the most crucial requirement for appointment of the person and if the antecedents of a person are such as would discourage the recruiter to offer an appointment, the appointment can be declined on the such sole ground. It was argued that it was sufficient that the bona-fide allegations were made surrounding the conduct of the candidate; though such allegations may not have been eventually sustained under the rigor of law. It was argued that the recruiter would be more concerned with the suitability of the candidate and if has a bona-fide reason to question the suitability, the appointment may be declined. 7. Having considered the rival contentions, this is a case where undisputedly before the petitioner could accept the order of appointment and resume her duties, the order came to be withdrawn and thus employer-employee relation had not come into existence. Question is not of termination of service, but of discretion of the employer to take in the employment the candidate otherwise found to be eligible for the post in question and has been selected. For the purpose of making an appointment, after recruitment, number of factors including suitability may fall in the scope of consideration. The employer when looking for the appointee, would certainly expect the best of the appointee and if the 'suitability' is the term of appointment, there is no reason why the employer cannot deny the appointment on that ground for bona-fide reasons. 8. In Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar (supra), the candidate was charged with the offences punishable under Sections 304, 324 and 34 of the Indian Penal Code, but was eventually acquitted and was denied an appointment which denial was successfully challenged in Central Administrative Tribunal. The discharge/acquittal of the candidate weighed with the CAT to hold that the employee could not have been denied the right of appointment. The Apex Court examined the said issue and answered thus: "3..... The question is: whether the view taken by the Tribunal is correct in law? The discharge/acquittal of the candidate weighed with the CAT to hold that the employee could not have been denied the right of appointment. The Apex Court examined the said issue and answered thus: "3..... The question is: whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was physically found fit, Passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined forces The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found him not desirable to appoint him to the service." 9. Thus, above observations answer the submission of the learned Counsel for the petitioner. Even if the petitioner succeeded against her current employer, it cannot be said that the whole chapter gets closed even for the other recruiter which is entitled to look into the antecedents of a candidate. It is not for the Court to sit in appeal and substitute its own view on antecedents of a person on suitability or antecedents of a person if otherwise the material on record suggest that the denial of appointment is a bona-fide and not actuated by any malice or victimization etc. 10. The employer may look for such employee who may allow the administration of the bank smoothly and without any unnecessary or unwarranted obstructions. 10. The employer may look for such employee who may allow the administration of the bank smoothly and without any unnecessary or unwarranted obstructions. If the employer perceives certain conduct of the candidate as unsuitable, the Court under Article 226 of the Constitution of India cannot sit in appeal and substitute its own view. 11. In above view of the matter, in the opinion of this Court, the withdrawal of the order of appointment cannot be faulted with. The petition must therefore fail and is accordingly rejected. Rule is discharged with no order as to costs. Petition Dismissed.