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Allahabad High Court · body

2018 DIGILAW 232 (ALL)

PRAKHAR SHUKLA v. UNION BANK OF INDIA

2018-01-30

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT By the Court.—A Nationalized Bank, Union of India notified recruitment of managerial posts under the Union Bank Recruitment Project - 2009. The notification as advertised, apart from other posts, included 100 posts of Manager (Credit). 2. According to the advertisement, the last date for receipt of applications was 11.7.2009 but for applicants from remote areas it was 18.7.2009. The tentative date for written examination was 6.9.2009. The basic minimum educational qualifications for the posts were notified as Graduate with 50% marks in the aggregate (45% for Reserved Category Candidates) from a UGC recognised/AICTE Accredited University/Institution and a degree in Masters in Business Administration (MBA)(Finance) or in Masters in Management Studies (MMS)(Finance) etc. 3. The advertisement further provided that the candidates must possess the minimum prescribed qualification as on 31.5.2009 and must attach proof thereof. In case it is detected at any stage that the candidate does not satisfy the conditions stipulated or does not fulfil any of the eligibility criteria and/or has furnished any incorrect information and/or has suppressed any material information his candidature will stand cancelled. In case he gets appointed, his services will be summarily terminated. 4. In short, the advertisement for the post of Manager (Credit), apart from other things, prescribed the minimum qualification of degree in Masters in Business Administration (MBA) (Finance) and that the candidate should possess that qualification as on 31.5.2009. 5. The petitioner applied in pursuance of the above advertisement within the prescribed time. In the application form he, inter alia, stated that he is MBA from Uttar Pradesh Technical University, Lucknow, specialised/stream/discipline in Management and had studied Marketing, Finance, Human Resource and Information Technology. He had passed MBA in the year 2007 - 2009 precisely in June, 2009 with 64% marks. 6. The application of the petitioner was entertained and he was allowed to participate in the selection procedure. He was duly selected and was appointed on 12.7.2010 as Manager (Credit). 7. After about 5 years of working a departmental inquiry was instituted against him and he was charge-sheeted on 3.10.2015. The charge against the petitioner was that he did not possess the required educational qualification of MBA (Finance) on the cut off date i.e. 31.5.2009 notified in the advertisement. He completed the said course subsequent to the said date. 7. After about 5 years of working a departmental inquiry was instituted against him and he was charge-sheeted on 3.10.2015. The charge against the petitioner was that he did not possess the required educational qualification of MBA (Finance) on the cut off date i.e. 31.5.2009 notified in the advertisement. He completed the said course subsequent to the said date. Thus, by the aforesaid act of omission and commission on his part, he has misconducted himself and has acted in contravention of Clause 13 of Union Bank Recruitment Project - 2009. This act on his part is unbecoming of a Bank Officer. 8. In the aforesaid departmental proceedings, an inquiry report was submitted on 31.12.2015 on the basis of which the services of the petitioner were terminated vide order dated 5.7.2016 holding that he was not eligible to apply for the post in question and that he had knowingly submitted incorrect and misleading information in his application with malicious intention to secure a job. 9. The aforesaid order of removal of the petitioner is impugned by means of this petition. 10. The petition was entertained vide order dated 20.7.2016 and the termination order was stayed with the result the petitioner continued in service and probably he has been considered for promotion also, the result of which has been kept in sealed cover. 11. We have heard Sri Ashok Khare, Senior Counsel appearing for the petitioner and Sri Vivek Ratan Agrawal, learned counsel for the respondents. 11. Both of them agreed for final disposal of the petition on the basis of the affidavits exchanged between the parties. 12. 11. We have heard Sri Ashok Khare, Senior Counsel appearing for the petitioner and Sri Vivek Ratan Agrawal, learned counsel for the respondents. 11. Both of them agreed for final disposal of the petition on the basis of the affidavits exchanged between the parties. 12. Sri Khare has argued that the respondents are estopped under law from terminating services of the petitioner on the ground that he was not qualified for the post in question on the cut off date notified; the petitioner had disclosed full and complete particulars regarding his qualification in the application form and nothing was concealed or suppressed; the respondents cannot terminate the services of the petitioner on the above ground after allowing him to function for five years; and in case there was any technical flaw with regard to the requisite qualification of the petitioner on the cut off date as he had obtained and completed it before the last date of submission of the application, the condition could be relaxed by the respondents as all terms and conditions contained in the advertisement are not mandatory. 13. In reply to the submission advanced by learned counsel for the petitioner, Sri Vivek Ratan Agrawal, learned counsel for the respondents relying upon various paragraphs of the counter-affidavit submitted that the appointment of the petitioner from the very inception is void for want of necessary minimum qualification on the cut off date notified; the appointment of the petitioner in defiance of the rules/conditions cannot be sustained and the petitioner is not entitled to any compassion for the reason that he has been allowed to function for five years or for the reason that the inquiry was instituted against him after five years. 14. It is admitted to the parties that under the statute no specific qualification for the post of Manager (Credit) or otherwise has been provided, rather the minimum qualifications are contained only in the advertisement. 15. The advertisement, apart from other things provided that the candidate should possess a decree in Master in Business Administration (MBA)(Finance) on the cut off date 31.5.2009. The result of the petitioner of MBA (Finance) was declared on 20.6.2009, after the cut off date and, as such, the allegation is that he was not possessing requisite qualification on the date notified. 16. The result of the petitioner of MBA (Finance) was declared on 20.6.2009, after the cut off date and, as such, the allegation is that he was not possessing requisite qualification on the date notified. 16. The question whether the candidate must have the prescribed qualification on a particular date specified in the rules or the advertisement is no longer res integra, inasmuch as, the Supreme Court in Bhupinderpal Singh v. State of Punjab, (2000) 5 SCC 262 , has approved the following proposition of law laid down by the Punjab and Haryana High Court: “...........that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority.” 17. The aforesaid decision of the Supreme Court was followed with approval in Alka Ojha v. Rajasthan Public Service Commission, (2011) 9 SCC 438 . 18. In view of the above decisions, it is settled in law that the cut off date provided for the eligibility in the advertisement must be satisfied by the candidate seeking a public appointment. 19. It is also settled in law that the Courts or the tribunals have no power to override the mandatory provisions of the rules laying down essential minimum eligibility qualification for the recruitment. No compassionate or sympathetic consideration would override such mandatory requirement either for the reason that the person has continued on the post for a long time and has acquired experience or that he is not at fault in seeking appointment. The aforesaid principal was reiterated by the Supreme Court in State of Madhya Pradesh and another v. Dharam Bir, JT 1998 (4) SC 363. 20. In Kishorilal Charmakar v. District Education Officer, (1998) 9 SCC 395 , a candidate was given appointment due to mistake in feeding the date in the computer, even though he was ineligible for appointment. The aforesaid principal was reiterated by the Supreme Court in State of Madhya Pradesh and another v. Dharam Bir, JT 1998 (4) SC 363. 20. In Kishorilal Charmakar v. District Education Officer, (1998) 9 SCC 395 , a candidate was given appointment due to mistake in feeding the date in the computer, even though he was ineligible for appointment. The Supreme Court held that even though the mistake was not attributable to appointee and he had continued for ten long years, as he was ineligible for appointment, the tribunal had rightly upheld the order of his termination. In other words, a person who is not eligible to hold the post even if appointed by mistake cannot be permitted to continue on the said post and his services are liable to be terminated. 21. It is also well-settled and recognised that an appointment de-horse the rules cannot be continued and that in such cases of illegal appointment the principle of natural justice would not be attracted and the continuity in service would not alter the legal position that the appointment is bad in law. Such appointees cannot complaint of the termination of their appointment. 22. In State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574 , it was held that an ineligible person called for interview and selected provisionally is not entitle to continue in service on compassionate grounds, inasmuch he had acquired the necessary qualification after the cut off date prescribed in the advertisement. Thus, a cut off date by which all the requirements relating to qualifications were to be met was held not liable to be ignored and the rules of relaxation in that regard would not be applicable as there may have been other persons who may have applied had they known that the date for acquiring qualification was flexible and may not have applied because on the cut off date they were not possessed of the requisite qualification. 23. In view of the above legal position, it is as clear as crystal that fulfilment of the conditions or the minimum qualification on the cut off date as prescribed in the advertisement is mandatory and that such condition is not relaxable in the case of one individual as it may work out to be detrimental to other prospective candidates. 23. In view of the above legal position, it is as clear as crystal that fulfilment of the conditions or the minimum qualification on the cut off date as prescribed in the advertisement is mandatory and that such condition is not relaxable in the case of one individual as it may work out to be detrimental to other prospective candidates. It is further clear that calling for interview by mistake; selecting the candidate and appointing him even though he is ineligible would not give him any right to continue and that no compassion or sympathy can be shown to him for the reason that he has worked for long time and that he is not to be blamed for such incorrect or illegal appointment. 24. In the case at hand, the services of the petitioner had been terminated as he was not having a decree of MBA (Finance) as on 31.5.2009, the cut off date which act of his was treated to be in breach of Clause 13 of Union Bank Recruitment Project - 2009 and unbecoming of a Bank Officer. Thus, his services were terminated by a stigmatic order and not for the reason that his appointment was liable to be cancelled. 25. The Union Bank Recruitment Project - 2009 in Clause 13 provides as under: “13: ACTION AGAINST CANDIDATES FOUND GUILTY OF MISCONDUCT: Candidates are advised in their own interest that they should not furnish any particulars/details/information or make statements that are false, incorrect, tampered, fabricated or should not conceal or suppress any material information while filling up the application form and submitting the attested copies of testimonials. In case it is detected at any time that the candidate has indulged in any of the above mentioned activities, he/she will not only be disqualified but he/she will be liable to be dismissed from the services of the bank at any time, even after being selected and after joining the Bank’s service. In case it is detected at any time that the candidate has indulged in any of the above mentioned activities, he/she will not only be disqualified but he/she will be liable to be dismissed from the services of the bank at any time, even after being selected and after joining the Bank’s service. At the time of Written Examination/Group Discussion/Interview, if a candidate is (or has been) found guilty of: i) using unfair means during the selection process, or ii) Impersonating or procuring impersonation by any person, or iii) Misbehaving in the Examination Hall &/or Group Discussion/Personal Interview Hall, or iv) Resorting to any irregular or improper means in connection with his/her candidature, including resorting to canvassing his candidature, or obtaining support for his/her candidature, by any means, such a candidate may, in addition to rendering himself/herself liable to criminal prosecution, shall also be liable: to be disqualified from the selection process for which he/she is a candidate; to be debarred, either permanently or for a specified period, from any examination or recruitment conducted by the Bank. NOTE: The Bank would be analyzing the responses of a candidate with other appeared candidates to detect patterns of similarity. On the basis of such analysis, if it is suspected that the responses have been shared and the scores obtained are not genuine/valid, then Bank reserves the right to cancel the candidature.” 26. A plain reading of the aforesaid Clause would reveal that in case the candidate furnishes any particulars and makes statements that are false, incorrect, tempered, fabricated or conceals or suppresses any material information while filling up the application form he shall not only be disqualified but will be liable to be dismissed from the service of the Bank. 27. The aforesaid Clause is applicable in the case of furnishing of wrong information or concealment or suppression of material fact or information. 28. The petitioner, as stated earlier, had clearly stated in his application form that he has passed MBA in the year 2007 - 2009 in June, 2009 with 64% marks. We do not find any material which would indicate that the petitioner had at any time reported or stated or informed that he had qualified MBA on or prior to 31.5.2009, the cut off date. Thus, apparently there is no suppression or concealment of material fact or any misstatement on the part of the petitioner. 29. We do not find any material which would indicate that the petitioner had at any time reported or stated or informed that he had qualified MBA on or prior to 31.5.2009, the cut off date. Thus, apparently there is no suppression or concealment of material fact or any misstatement on the part of the petitioner. 29. On the other hand, the records reveals that the Department of Personnel, Manpower Planning and Recruitment Division, Central Office of the Bank was well aware of the fact that the petitioner had passed MBA in July, 2009, after the cut off date 31.5.2009 but even then issued an Interview Letter to him by registered post. This is evident from the endorsement made which appears on the interview call letter of the petitioner dated 5th February, 2010. The endorsement reads as under” “MBA passed in July 2009 i.e. after cut off dt. 31.05.09.” 30. This document was supplied to the petitioner and was part of the exhibit before the inquiry. 31. In view of the above, there was no concealment or wrong statement on the part of the petitioner with regard to his passing MBA after the cut off date, as is also clear from his application form. Thus, the Inquiry Officer and the disciplinary authority were not justified in holding that as the petitioner obtained necessary qualification after the cut off date he obtained employment by misrepresentation of fact and since information furnished by him was incorrect he contravened Clause 13 of the Union Bank Recruitment Project, 2009. 32. The above finding is completely perverse and cannot be sustained in law. It is another thing that the petitioner was ineligible for appointment for want of MBA degree as on the cut off date 31.5.2009 but it does not mean that he is guilty of misrepresentation or for contravention or violation of Clause 13 of the Union Bank Recruitment Project 2009 and that his conduct is unbecoming of a bank officer. 33. Clause 13 of the Union Bank Recruitment Project 2009 has to be read with General Instructions contained in Clause 15 of the Union Bank Recruitment Project 2009. The relevant portion of which reads as under: “15: GENERAL INSTRUCTIONS: a)............. 33. Clause 13 of the Union Bank Recruitment Project 2009 has to be read with General Instructions contained in Clause 15 of the Union Bank Recruitment Project 2009. The relevant portion of which reads as under: “15: GENERAL INSTRUCTIONS: a)............. In case it is detected at any stage of recruitment that a candidate does not fulfill the eligibility norms and/or that she/he has furnished any incomplete/incorrect/false information or has suppressed any material fact(s), his/her candidature will stand cancelled. If any of these shortcomings is/are detected even after appointment, his/her services are liable to be terminated. b)....... .......... .......... s).......” 34. The aforesaid Clause 15 stipulates that if a candidate does not fulfil the eligibility norms or furnishes false or incorrect information or suppresses material facts his candidature will stand cancelled and, if any shortcoming is detected after appointment his services would be terminated. 35. Union Bank of India Officer Employees’ (Discipline and Appeal) Rules, 1976 which provides for the imposition of punishments and the manner of holding disciplinary inquiry, do not specifically provides for the action for which the major penalty that of determining the services can be taken. In other words, the grounds on which the major punishment can be imposed has not been specified in the Rules. Therefore, one has to fall back on the conditions contained in the Union Bank Recruitment Project - 2009. 36. The combined reading of the two clauses referred to above do provide that if any appointment is made overlooking the eligibility of the candidate, the same is liable to be cancelled/terminated. The factum that the petitioner is not possessed of the requisite qualification as on the relevant cut off date was deducted prior to the issuance of the interview call letter. Thus, his candidature was liable to be treated as cancelled on that very moment in terms of the above clauses. The respondents, however, failed in cancelling his candidature at that point of time. The respondents could have cancelled it even lateron despite appointment of the petitioner, on acquiring knowledge of the above defect. However, in such a case, the action open for the respondents was to terminate the services of the petitioner simplicitor on the ground that he was ineligible, rather terminating his services after holding him guilty for misrepresentation or suppression of material facts. However, in such a case, the action open for the respondents was to terminate the services of the petitioner simplicitor on the ground that he was ineligible, rather terminating his services after holding him guilty for misrepresentation or suppression of material facts. The order to the above effect is flawed for two reasons: first the finding of misstatement or suppression of materials facts is perverse and not borne out from the material on record; and secondly such a finding is stagmatic in nature and could have been avoided by simply terminating the services of the petitioner, holding him to be ineligible. 37. Attaching a stigma upon a person adversely affects his career having the effect upon his livelihood. A stigma of any kind, therefore, ought not to be attached unless the situation so warrants. This is not a case where such a stigma was necessary rather it could have been avoided if some care would have been taken in passing the impugned order. 38. In view of the aforesaid facts and circumstances, we are of the opinion that the order impugned cannot be sustained. 40. Accordingly, the impugned order dated 5.7.2016 is quashed with the liberty to the respondents to pass a fresh order, if necessary, in accordance with law, for termination of the services of the petitioner on the ground that he was not qualified on the date prescribed. The writ petition is allowed.