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2019 DIGILAW 1401 (ALL)

Prakhar Shukla v. Union Bank of India

2019-05-22

YASHWANT VARMA

body2019
ORDER : Yashwant Varma, J. 1. Heard Sri Ashok Khare, learned Senior counsel appearing for the petitioner and Sri Vivek Ratan Agrawal, learned counsel appearing for the respondents. 2. This petition impugns an order dated 17 April, 2018 in terms of which the appointment of the petitioner under the respondent Bank has come to be terminated. 3. Briefly noticing the facts which have led to filing of the instant writ petition, the respondent Bank issued a recruitment notification in 2009 calling for applications for various posts including that of Probationary Officer. The petitioner applied pursuant to that recruitment notice. The essential qualification which was required for the post in question was an MBA degree. The advertisement prescribed 31 May, 2009 as the last date for possession of the requisite qualifications. Candidates were permitted to apply between 11 July to 18 July, 2009. Admittedly the petitioner cleared the written examination and was also called to participate in the interview. He was ultimately offered appointment by the respondent Bank on 12 July, 2010. Five years after having continued to discharge duties as an Officer under the Bank, a show-cause notice came to be issued calling upon him to explain why his appointment be not cancelled. The issue itself arose in the backdrop of the petitioner having completed his MBA programme in June, 2009 and having obtained a degree thereafter. It is pertinent to note that the requisite disclosure in this respect, namely, of having cleared the MBA examination in June, 2009 was disclosed in the application which was made. It is also not disputed that by 11 July, 2009, the petitioner held the degree in question. Reverting to the show-cause notice, the allegation against the petitioner was that he did not possess the MBA qualification on 31 May, 2009 which was the date stipulated in the advertisement. 4. Upon receipt of the response of the petitioner to the show-cause notice, final orders were passed terminating his services on 5 July, 2016. The Bank while passing that order took the view that the petitioner had suppressed material facts and was also guilty of misrepresentation. According to the Bank, the petitioner had committed serious misconduct and he was consequently liable to be terminated from service. 5. This order passed by the Bank was assailed by way of Writ-A No. 32956 of 2016. The Bank while passing that order took the view that the petitioner had suppressed material facts and was also guilty of misrepresentation. According to the Bank, the petitioner had committed serious misconduct and he was consequently liable to be terminated from service. 5. This order passed by the Bank was assailed by way of Writ-A No. 32956 of 2016. The Division Bench found that the Bank had clearly erred in holding the petitioner guilty of misrepresentation or suppression of material facts. It further found that the order impugned in that petition was stigmatic. It consequently proceeded to quash the order dated 5 July, 2016. It however, granted liberty to the Bank to pass a fresh order if necessary in accordance with law for terminating his services on the ground that he was not qualified on the date prescribed under the advertisement. This ultimate direction as contained in the judgment of the Division Bench was made in the context of the following observations which were entered:-- "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 : ( AIR 2000 SC 2011 ) 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 men 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." The aforesaid decision of the Supreme Court was followed with approval in Alka Ojha v. Rajasthan Public Service Commission' (2011) 9 SCC 438 : AIR 2011 SC 3547 ). 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. 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. It is also settled in law that the courts or the tribunals have no power to override the mandatory provisions of the rules laving 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 : (ATR Online 1998 SC 113). 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. It is also well settled and recognised that an appointment dehors 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. In State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574 : ( AIR 1998 SC 91 ) 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. In State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574 : ( AIR 1998 SC 91 ) 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. 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." (Emphasis supplied) 6. Aggrieved by the liberty that was accorded, the petitioner preferred a review application. The review application was dismissed on 27 April, 2008. In the interregnum and pursuant to the liberty granted by the Division Bench in its original judgment, the respondents proceeded to pass an order on 21 February, 2018 terminating the appointment of the petitioner as Manager (Credit) on the ground that he did not possess the required qualification on the date as prescribed in the advertisement. This order was independently challenged by the petitioner by way of Writ-A No. 6951 of 2018. That writ petition was allowed by the Division Bench on 27 February, 2018 on the short ground that the order of 21 February, 2018 had been passed in violation of the principles of natural justice. This order was independently challenged by the petitioner by way of Writ-A No. 6951 of 2018. That writ petition was allowed by the Division Bench on 27 February, 2018 on the short ground that the order of 21 February, 2018 had been passed in violation of the principles of natural justice. The review which had remained pending came to be dismissed on 27 April, 2018 with the following observations:- "The submission of Sri Ashok Khare, learned counsel for the petitioner is that since the enquiry was not held to have been vitiated for any reason and the order was set aside in full, there was no occasion to grant any liberty to the respondents for passing a fresh order. Even if we have not granted any liberty for passing a fresh order, it is always open for the employer to take action against the employee if necessary and to pass a fresh order. Thus any liberty so granted by us by means of the aforesaid order would not in any way affect the petitioner. The fresh order passed against the petitioner has already been challenged by him in an appropriate forum where he can take all relevant pleas which may be open to him including the one that but for the liberty granted by this Court no fresh order could have been passed. In view of the aforesaid facts and circumstances of the case, we do not consider it appropriate in any way review or modify the earlier order passed by us. Review application is rejected." It is in the above backdrop and pursuant to the final orders passed on Writ-A No. 6951 of 2018 that the impugned order of 17 April, 2018 has come to be made by the respondents. 7. Sri Khare, learned Senior Counsel, has urged that the initiation of disciplinary proceedings after inordinate delay and after a lapse of the years of service rendered by the petitioner was clearly unjustified and liable to be quashed by the Court. He referred to the judgment rendered by the Supreme Court in P.V. Mahadevan v. M.D., Tamil Nadu Housing Board, (2005) 6 SCC 636 : ( AIR 2006 SC 207 ) to contend that the entire proceedings were liable to be quashed on this short ground. He referred to the judgment rendered by the Supreme Court in P.V. Mahadevan v. M.D., Tamil Nadu Housing Board, (2005) 6 SCC 636 : ( AIR 2006 SC 207 ) to contend that the entire proceedings were liable to be quashed on this short ground. Sri Khare then referring to the provisions of the Union Bank of India (Officers) Service Regulations, 1979 ["1979 Regulations] has contended that the services of the petitioner in terms of Regulation 20 could have been terminated by the Chairman and the Managing Director only. On this ground Sri Khare submits that the impugned order which has been made by the Manager (HR) is clearly without jurisdiction and liable to be quashed. Sri Khare lastly contends that the Division Bench while passing orders on the review application had clearly observed that the employer always had the liberty to proceed against an employee and pass a fresh order once a challenge at the behest the employee is accepted by a competent Court. He further highlighted the fact that the Division Bench had taken note of the fresh challenge which had been instituted by the petitioner against the subsequent order of termination which had come to be passed. In light of the aforesaid, it was his submission that it was not open for the respondents to have exercised the powers of a termination simpliciter once orders passed after regular disciplinary proceedings having been initiated and the order passed in culmination thereof had been quashed. 8. Sri Agarwal learned counsel appearing for the respondents on the other hand has taken the Court through the advertisement and the various stipulations contained therein to submit that it was clearly provided that all requisite qualifications must be possessed by 31 May, 2009. According to Sri Agarwal even if there be no case of a material suppression or misstatement, on admitted facts itself it is manifest that the petitioner did not possess the MBA degree on the date as prescribed. According to Sri Agarwal the fact that the petitioner held that degree at the time when he filled in the application form is wholly irrelevant since the essential educational qualification was to be possessed by him on or before 31 May, 2009 in terms of the provisions made in the advertisement. According to Sri Agarwal the fact that the petitioner held that degree at the time when he filled in the application form is wholly irrelevant since the essential educational qualification was to be possessed by him on or before 31 May, 2009 in terms of the provisions made in the advertisement. Sri Agarwal further contended that the advertisement had clearly provided in unequivocal terms that in case it be detected at any stage of the recruitment exercise that a candidate does not fulfil the eligibility norms his candidature was liable to be cancelled. According to Sri Agarwal the action of the respondent Bank is even otherwise clearly saved by the liberty which was accorded by the Division Bench in its original judgment on 30 January, 2018. He also highlighted the legal principles which must govern situations like the one presently raised in this petition and which were elucidated by the Division Bench inter partes in the first round of litigation itself. 9. Having noticed the rival submissions, the Court firstly takes up the issue of the alleged violation of Regulation 20. As is evident from a plain reading of Regulation 20, it only applies to situations where the Bank proceeds or intends to terminate the services of an employee if his performance is found to be unsatisfactory or inadequate or where there is a bona fide suspicion about his integrity or in case it concludes that his continuance in service would be prejudicial to the interest of the Bank. It is in these situations alone that Regulation 20 stands attracted. Suffice it to note that the services of the petitioner here have not been terminated on any of the grounds which are contemplated and provisioned for in Regulation 20(1)(a). The sole ground which had led to the termination of the service of the petitioner is the issue of him not possessing the requisite qualification on the date as prescribed in the advertisement. 10. While Sri Khare may be correct in his submission that inordinate or a protracted delay in initiation of disciplinary measures may constitute a ground to quash disciplinary proceedings, the Court finds itself unable to tread down this path for the following reasons. 10. While Sri Khare may be correct in his submission that inordinate or a protracted delay in initiation of disciplinary measures may constitute a ground to quash disciplinary proceedings, the Court finds itself unable to tread down this path for the following reasons. Firstly, the Division Bench itself in the petition preferred by the petitioner accorded liberty to the respondent Bank to pass fresh orders, if necessary for termination of services of the petitioner on the ground that he was not qualified on the date prescribed. This liberty was accorded by the Division Bench in its decision rendered on 30 January, 2018. The fact that the petitioner had been appointed on 12 July, 2010 and that proceedings were initiated only in 2015 was a circumstance which was evident and borne out from the record as it existed before the Division Bench when it rendered its decision on 30 January, 2018. Despite this, the Court proceeded to grant liberty to the respondents to proceed against the petitioner if chosen. Secondly, it was also open to the petitioner himself to have raised this issue before the Court in his first writ petition. However no such submission appears to have been urged. In any case, once the Division Bench found it expedient to grant liberty to the Bank to terminate the services of the petitioner on the ground of lacking the essential qualification in accordance with the requirements placed in the advertisement, this submission does not merit acceptance. 11. Significantly and as is evident from the findings which came to be recorded inter partes in that decision, the Court laid emphasis on the requirement of a candidate possessing the essential qualification on the date as specified either in the rules or in the advertisement. It further observed that Courts have no power to override the mandatory provisions of the rules laying down the essential minimum eligibility qualifications or the stipulations contained in the advertisement. It then consequently proceeded to observe that compassion and sympathetic consideration cannot override the mandatory requirement solely on account of the person having continued on the post for a long period and having acquired experience or even if there be no inherent fault in seeking appointment. These findings rendered by the Division Bench inter partes clearly binds the Court. 12. It then consequently proceeded to observe that compassion and sympathetic consideration cannot override the mandatory requirement solely on account of the person having continued on the post for a long period and having acquired experience or even if there be no inherent fault in seeking appointment. These findings rendered by the Division Bench inter partes clearly binds the Court. 12. It is thus evident that the issue of delay pails into insignificance in light of the findings as recorded by the Division Bench in the judgment rendered on 30 January, 2018. The Court recorded that the provisions made in an advertisement with respect to possession of essential qualifications are mandatory and can neither be departed from nor diluted on sympathetic considerations. It further found that the mere continuance of an employee in such circumstances does not give rise to any equitable considerations operating in his favour. 13. The petitioner undisputedly did not possess the MBA qualification on the last date as prescribed under the advertisement. The mere fact that he was in possession of this qualification when he was appointed ultimately in the Bank does not convince this Court to accord any relief. More so in light of the observations entered by the Court itself in the earlier round of litigation which ensued between the parties. 14. On an overall conspectus of the aforesaid facts, the Court finds no ground to interfere with the order impugned. The writ petition fails and is dismissed.