Bombay High Court
Supriya Vinayak Gawande vs The State Of Maharashtra And ... on 2 August, 2022
Bench: Mangesh S. Patil, Sandeep Vishnupant Marne
.. 1 .. WP.5294.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5294 OF 2019
Supriya Vinayak Gawande
Age : 28 years, Occu : Service,
R/o. Petur, Post Sukanegaon,
Tal. Wani, Dist. Yevatmal .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Collector,
Nanded, Dist. Nanded
3. The Principal Secretary and
Residential Deputy Collector,
District Selection Committee,
Nanded, Tq. and Dist. Nanded
4. Priyanka Sandipan Bane
Age : 23 years, Occu : Nil,
R/o. Radhamohan Niwas,
Shree Colony, M.G. Road,
Ahmedpur, Dist. Latur .. Respondents
...
Mr. Balbhim R. Kedar, Advocate for Petitioner
Mrs. R.P. Gour, AGP for Respondent - State
Mr. K.G. Salunke and Mr. Anirudha A. Nimbalkar, Advocate for
Respondent No.4
...
WITH
CIVIL APPLICATION NO.9298 OF 2021
IN
WRIT PETITION NO.5294 OF 2019
...
::: Uploaded on - 02/08/2022 ::: Downloaded on - 04/08/2022 00:23:22 :::
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CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 27-07-2022
PRONOUNCED ON : 02-08-2022
JUDGMENT (PER SANDEEP V. MARNE, J.) :
1. Heard. Rule. It is made returnable forthwith. Learned
AGP Mrs. Gour and learned advocate Mr. Nimbalkar waive service.
At their joint request the matter is heard finally at the admission
stage.
2. The petitioner assails order dated 22.04.2019 passed by
the Maharashtra Administrative Tribunal, Bench at Aurangabad in
Original Application No.813 of 2015, which was instituted by
respondent no.4 herein challenging selection as well as appointment
of the petitioner to the post of Talathi and seeking her own
appointment in NT-C Female Category. By order dated 22.04.2019,
the learned Tribunal was pleased to allow the original application
and quashed and set aside selection and appointment of the
petitioner on the post of Talathi. The Tribunal further directed
appointment of respondent no.4 on the post of Talathi in the category
of NT-C Female.
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3. When the petition came up on 03.05.2019, this Court
passed order directing position as on the date to be maintained till
the next date. The interim protection has been continued from time
to time and due to interim protection the petitioner continues to
work on the post of Talathi till date.
4. Briefly stated, facts of the case are as follows:
. An advertisement was published by respondent no.2 on
23.06.2015 for filling up inter alia the post of Talathi. Total 40 posts
of Talathi were advertised divided into various categories and it
appears that one of the posts was reserved for NT-C Female category.
Both, petitioner and respondent no.4 applied in pursuance of the
advertisement.
5. It is the case of the petitioner that she belongs to NT-C
category and as per the requirement of the advertisement, she was in
possession of Non Creamy Layer status certificate bearing no.7586
issued on 26.06.2013, which was valid upto 31.03.2015 and
accordingly she stated the number of the certificate in the online
application form. Even though the certificate was valid upto
31.03.2015, the petitioner stated in her online application form that
it was valid upto 31.03.2016. Since the advertisement required Non
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Creamy Layer Certificate issued after 01.03.2015, it appears that the
petitioner procured a fresh Non Creamy Layer status Certificate dated
17.07.2015 which was valid upto 31.03.2018.
6. It is the case of the petitioner that she was not supposed
to upload any certificate along with her online application form and
that mere possession of the certificate was sufficient. The petitioner
further submits that as on the date of document verification she was
in possession of the fresh certificate issued on 17.07.2015, which she
produced during the process of document verification. In the select
list that was prepared, the petitioner was placed at serial no.1
amongst NT-C Female Category, whereas respondent no.4 was placed
at serial no.2. Accordingly, the petitioner was appointed on the post
of Talathi vide appointment order dated 01.12.2015 and she joined
the post on 02.12.2015.
7. The selection and appointment of the petitioner was
questioned by respondent no.4 by instituting Original Application
No.813 of 2015 contending that the petitioner gave incorrect
information in the online application form. Additionally, it was
contended that the petitioner did not possess Non Creamy Layer
status Certificate issued after 01.04.2015 as on the date of filling up
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of online form. Respondent no.4 questioned the action of the
respondents in entertaining the subsequent document in the form of
fresh Non Creamy Layer status certificate dated 17.07.2015 which
was never mentioned in the online application form of the petitioner.
8. The learned Tribunal passed order dated 22.04.2019
holding that the Non Creamy Layer Certificate relied upon /
furnished by the petitioner violated three mandatory conditions of
the advertisement. It, therefore, held that participation of the
petitioner and her selection in the process was illegal. Accordingly,
the learned Tribunal proceeded to set aside the selection and
appointment of the petitioner and directed appointment of
respondent no.4 in her place.
9. Appearing on behalf of the petitioner, Shri. Balbhim
Kedar, learned advocate submitted that the status of the petitioner as
Non Creamy Layer is not in dispute. He further contended that no
document was required to be uploaded along with the online
application form and therefore, the petitioner was justified in
procuring and submitting the fresh Non Creamy Layer status
Certificate dated 17.07.2015 during the course of document
verification. The learned advocate further submitted that the
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petitioner was already in possession of the earlier Non Creamy Layer
Certificate, which was valid upto 31.03.2015 and accordingly, she
rightly stated the number of the said certificate being 7586 in her
online application form. So far as the discrepancy in the date of
validity of the certificate no.7586 as stated in the online application
form is concerned, the learned advocate submitted that since the
petitioner was already in possession of the Certificate for three years,
valid upto 31.03.2016, she stated the date as "31.03.2016" in the
online application form under a bona fide belief that its validity was
bound to be extended upto 31.03.2016. The learned advocate,
therefore, submitted that the petitioner fulfilled the eligibility criteria
and was rightly selected and appointed on the post of Talathi.
10. In support of his contention that the petitioner's
eligibility could not be questioned on account of availability of the
earlier and subsequent Non Creamy Layer Certificate, Mr. Kedar has
relied upon following Orders / judgments :
(i) Order dated 29.07.2015 passed by this Court in Writ Petition
No.4954 of 2015, Sachin Narayan Sangle Vs. The State of
Maharashtra and another.
(ii) Judgement dated 19.09.2016 passed by this Court in Writ
Petition No.4894 of 2013, Rajnish Marotrao Andhe Vs. The
State of Maharashtra and others.
(iii) Judgment dated 24.03.2015 passed by this Court in Writ
Petition No.11722 of 2014, Arvind Motiram Chavan Vs. The
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State of Maharashtra and others.
11. In support of his contention that even if there is any minor
discrepancy in filling up the online application form, it is required to
be ignored, Mr. Kedar has relied upon following judgments :
(i) Commissioner of Police and others Vs. Sandeep Kumar,
(2011) 4 SCC 644.
(ii) Judgment dated 29.10.2014 passed by this Court in
Writ Petition No.1994 of 2002, the State of Maharashtra and
others Vs. Balu Gahininath Bahirwal.
12. Mr. Kedar also contended that there were at least four
cases in which the concerned candidates did not fill up full
information, but have been appointed without any objection and
therefore, the petitioner could not be discriminated. He further
contended that respondent no.4 is no longer jobless and has, in the
meantime, been appointed on the post of clerk in the police
department in the year 2015. Mr. Kedar has also relied upon salary
certificate dated 22.04.2019 which mentions the status of the
petitioner as a permanent / confirmed employee.
13. Per contra, Mr. A.A. Nimbalkar, learned Advocate
appearing for respondent no.4 laid stress on various stipulations of
the advertisement under which the candidates were warned that if
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any information filled in the online application form was found to be
incorrect, the selection of such candidate was to be nullified. He
particularly referred to the condition in the advertisement which
required all reserved category candidates, except SC / ST, to possess
Non Creamy Layer Certificate issued by the competent authority in
respect of the year 2015-16 issued after 01.04.2015. He contended
that under the stipulation of the advertisement, no document which
was not referred to in the online application form could have been
taken into consideration for determining eligibility of the candidates.
14. Referring to the date 31.03.2016 as the date of validity
of the Non Creamy Layer Certificate as stated by the petitioner in her
online application form, Mr. Nimbalkar submitted that the petitioner
had given false information in the application form. Having
mentioned certificate no.7586 in the online application form it was
not permissible for her to produce any other certificate in support of
her eligibility during the process of document verification.
15. In support of his contentions, Mr. Nimbalkar has relied
upon following decisions :
(i) Bedanga Talukdar Vs. Saifudaullah Khan & Ors, 2012 AIR (SC)
1803.
(ii) Ashok Kumar Sharma Vs. Chander Shekhar, 1997 (4) SCC 18.
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(iii) Order dated 13.01.2020 passed by this Court in Writ Petition
No.9974 of 2019, Rajendra Bapurao Hande Vs. Bharat
Petroleum Corporation Ltd and another.
(iv) Bharat Petroleum Corporation Ltd and Ors Vs. Swapnil Singh,
MANU/SC/1572/2015.
(v) Order dated 06.01.2020 passed by this Court in Writ Petition
No.4672 of 2019, Late Hariwanshrai Bacchan Bahu Uddeshiya
Sevabhavi Sanstha Paradh Bk. Vs. The State of Maharashtra
and Others.
(vi) Andhra Pradesh Public Service Commission Vs. Koneti
Venkateswarulu, 2005 AIR (SC) 4292.
16. We have carefully gone through the entire record of the
case. Since the entire controversy revolves around the eligibility of
the petitioner for being considered in the selection, it would be
necessary to reproduce some of the terms and conditions of the
advertisement:
"vtZnkjkus vtZ Hkjrkauk oLrqfu'B o vpwd ekfgrh
Hkjkoh rlsp vtkZlkscr dks.krsgh izek.ki=s o brj dkxni=s
tksMw u;sr- HkjysY;k ekfgrhP;k vk/kkjsp fuoM
dj.;kr ;sbZy rlsp fuoMhuarj ekfgrh pwd vk<GY;kl
R;kaph fuoM jn~n dj.;kr ;sbZy o iq<hy xq.kkuwdzes
vlysY;k mesnokjkl la/kh ns.;kr ;sbZy- rlsp vtZ djrkauk
vkiY;k loZ "kS{kf.kd o brj ckchaph iq.kZ ekfgrh ueqn
djkoh- HkjysY;k ekfgrh O;frfjDr brj xq.koRrk o
ekfgrhph izek.ki=s @ vfHkys[ks uarj lknj dsY;kl
fopkjkr ?ksrys tk.kkj ukghr-"
"vuqlwfpr tkrh @ vuqlwfpr tekrh @ [kqyk
izoxZ oxGwu vU; loZ ekxkloxhZ; mesnokjkalkBh lu
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2015&16 ;k o'kkZps Eg.kts fnukad 01-04-2015 uarj fuxZfer
dsysys mUur o izxr xVkr eksMr ulY;kckcrps l{ke
vf/kdkjh ;kaps izek.ki= vl.ks vko";d jkghy-"
"ekxkloxZ izoxkZrhy brj ekxkloxZ fotkv]
Hktc] Hktd o HktM ;k izoxkZrhy mUur vkf.k izxr
O;Drh vFkok xVkr eksMr ulysY;k efgyk lnL;kauh
efgYkkaP;k 30 VDds vkj{k.kklkBh fdzfeysvj e/;s eksMr
ulY;kps izek.ki=kph ekfgrh vtkZe/;s uewn djkoh o ewG
izek.ki= vafre fuoMhP;k osGh lknj dj.ks vko";d vkgs-"
"vtZnkjkus Online vtZ Hkjrkauk oLrqfu'B o vpwd
ekfgrh Hkjkoh rlsp vtkZlkscr dks.krsgh izek.ki=s o brj
dkxni=s tksMw u;sr fdaok viyksM d# u;sr- HkjysY;k
ekfgrhP;k vk/kkjsp fuoM dj.;kr ;sbZy rlsp fuoMhuarj
ekfgrh pwd vk<GY;kl R;kaph fuoM jn~n dj.;kr ;sbZy o
iq<hy xq.kkuwdzes vlysY;k mesnokjkl la/kh ns.;kr ;sbZy-
rlsp vtZ djrkauk vkiY;k loZ "kS{kf.kd o brj ckchaph
iq.kZ ekfgrh uewn djkoh- HkjysY;k ekfgrh O;frfjDr brj
xq.koRrk o ekfgrhph izek.ki=s @ vfHkys[ks uarj lknj
dsY;kl fopkjkr ?ksrys tk.kkj ukghr-"
"rykBh inkP;k ijh{kk fn-19-07-2015 jksth nqikjh
2-00 rs 4-00 ;k dkyko/khr ukansM ;sFks ?ks.;kr ;srhy-
mesnokjkus HkjysY;k ekfgrh vk/kkjs R;kl izos"ki= nsmu
ijh{ksl ik= dj.;kr ;sbZy- mesnokjkaph fuoM vafre
xq.koRrk ;knhr >kY;kl online vtkZizek.ks R;kph loZ eqG
izek.ki=s @ vfHkys[ks ;kaph lR;rk iMrkG.kh
dj.;kr ;sbZy- lR;rk iMrkG.khP;k osGsl mesnokjkus
online HkjysY;k vtkZr ueqn dsysY;k ekfgrhO;frfjDr lknj
dsysY;k brj dkxni=kapk fopkj dsyk tk.kkj ukgh- rlsp
iMrkG.kh djrkauk mesnokjkus online HkjysY;k vtkZr ueqn
dsysY;k ckchaps izek.ki= @ vfHkys[k rks lknj dj.;kl
vleFkZ BjY;kl R;kyk Hkjrh izfdz;srwu ckn
dj.;kr ;sbZy-"
17. The advertisement thus required the candidates to fill up
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correct information in the online application form and not to annex
or upload any documents or certificates. The advertisement also
required the candidates to possess Non Creamy Layer Certificate in
respect of the year 2015-16 issued after 01.04.2015. The
advertisement contained specific prohibition on consideration of any
document, details of which were not to be found in the online
application form. It is on account of these stipulations that the
learned Tribunal arrived at a conclusion that the Non Creamy Layer
Certificate relied upon / furnished by the petitioner violated three
mandatory conditions.
18. After perusal of specific condition in the advertisement
for possession of Non Creamy Layer Certificate of the year 2015-16
issued after 01.04.2015, the petitioner ought to have procured such
certificate before filling up the online application form and details of
such certificate ought to have been stated in the form. Admittedly,
the petitioner did not possess Non Creamy Layer Certificate issued
after 01.04.2015 as on the date of filling up and uploading the online
application form i.e. on 13.07.2015. Such certificate was issued to
the petitioner only on 17.07.2015 i.e. after filling up of the online
application form. Since the petitioner was not in possession of Non
Creamy Layer Certificate issued after 01.04.2015, perhaps, she chose
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to mention the number of Non Creamy Layer Certificate being "7586"
which was in her possession at the time of filling up of online
application form. However, the certificate was valid only upto
31.03.2015. Thus, as on the date of filling up of the form on
13.07.2015 there was no valid Non Creamy Layer Certificate in her
possession. To overcome this defect, the petitioner appears to have
stated that the validity of the Non Creamy Layer Certificate no.7586
was upto 31.03.2016. This statement was false to her knowledge.
Thus, the statement in the online application form that the certificate
no.7586 was valid upto 31.03.2016 appears to have been consciously
made by her with a view to circumvent the reality that as on the date
of filling up of the online application form i.e. 13.07.2015 she was
not in possession of any valid Non Creamy Layer Certificate. The
validity of certificate no.7586 had already expired on 13.03.2015.
The petitioner thus knowingly gave false information in her online
application form. This conduct of the petitioner does not commend
us.
19. Apart from deplorable conduct of the petitioner in
knowingly making false statement in her online application form,
there was specific prohibition in the advertisement for considering
any document or certificate, details of which were not mentioned in
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the online application form. Since Certificate No.7586 was mentioned
by her in online application form, the authorities could not have
taken into consideration an altogether different certificate, being
certificate dated 17.07.2015 for considering her eligibility. The
certificate dated 17.07.2015 was issued well after the petitioner
submitted her application on 13.07.2015. Therefore, the subsequent
certificate dated 17.07.2015 ought to have been ignored by the
concerned authorities. On the basis of Certificate No.7586, which was
valid only till 31.03.2015, the petitioner was not eligible to apply for
the post of Talathi in pursuance to the advertisement.
20. We, therefore, do not find any infirmity in the conclusion
reached by the learned Tribunal to the effect that the petitioner was
ineligible for participating in the selection process.
21. Various decisions cited by learned advocate Mr. Kedar in
support of his contentions are clearly distinguishable. Firstly, in none
of the judgments, the issue of giving false information in the
application form was involved. Secondly, stipulation of ignoring any
document not mentioned in the form was not involved in those cases.
Therefore, the judgments in the cases of Sachin Narayan Sangle,
Rajnish Marotrao Andhe (supra) and Arvind Motiram Chavan (supra)
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have no application to the peculiar facts and circumstances of the
present case.
22. Reliance of learned advocate Mr. Kedar on the decisions
of Commissioner of Police Vs. Sandeep Kumar (supra) and the
State of Maharashtra Vs. Balu Gahininath Bahirwal (supra) is also
misplaced. These decisions relate to disqualification of candidature
on the ground of involvement of candidates in criminal cases of
minor nature when they were relatively young. The issue involved in
the present case is altogether different wherein the petitioner has
knowingly given false information in her online application form for
the purpose of claiming eligibility in the selection process.
23. On the other hand, the decisions relied upon by
Shri. Nimbalkar, learned advocate appearing for respondent no.4 are
apposite:
(i) In Bedanga Talukdar Vs. Saifudaullah Khan & Ors
(supra) the Hon'ble Supreme Court has held in para nos.28 and 31 as
under :-
"28. We have considered the entire matter in detail. In our
opinion, it is too well settled to need any further reiteration that
all appointments to public office have to be made in conformity
with Article 14 of the Constitution of India. In other words,
there must be no arbitrariness resulting from any undue favour
being shown to any candidate. Therefore, the selection process
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has to be conducted strictly in accordance with the stipulated
selection procedure.
Consequently, when a particular schedule is mentioned in
an advertisement, the same has to be scrupulously maintained.
There can not be any relaxation in the terms and conditions of
the advertisement unless such a power is specifically reserved.
Such a power could be reserved in the relevant Statutory Rules.
Even if power of relaxation is provided in the rules, it must still
be mentioned in the advertisement. In the absence of such
power in the Rules, it could still be provided in the
advertisement. However, the power of relaxation, if exercised
has to be given due publicity. This would be necessary to ensure
that those candidates who become eligible due to the
relaxation, are afforded an equal opportunity to apply and
compete.
Relaxation of any condition in advertisement without due
publication would be contrary to the mandate of quality
contained in Articles 14 and 16 of the Constitution of India.
31. In the face of such conclusions, we have little hesitation in
concluding that the conclusion recorded by the High Court is
contrary to the facts and materials on the record. It is settled
law that there can be no relaxation in the terms and conditions
contained in the advertisement unless the power of relaxation is
duly reserved in the relevant rules and/or in the advertisement.
Even if there is a power of relaxation in the rules, the same
would still have to be specifically indicated in the
advertisement. In the present case, no such rule has been
brought to our notice.
In such circumstances, the High Court could not have
issued the impugned direction to consider the claim of
respondent No.1 on the basis of identity card submitted after
the selection process was over, with the publication of the select
list."
(ii) In Ashok Kumar Sharma Vs. Chander Shekhar (supra)
the Hon'ble Supreme Court has held in para no.6 as under :-
"6. The Review petitions came up for final hearing on
March 3, 1997. We heard the learned counsel for the review
petitioners, for the State of Jammu and Kashmir and for the
33 respondent. So far as the first issue referred to in our
order dated Ist September, 1995 is concerned, we are of the
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respectful opinion that majority judgment (rendered by the
Dr. T.K. Thommen and V. Ramaswami, JJ) is unsustainable in
law. the proposition that where applications are called for
prescribing a particular date as the last date for filing the
applications, the eligibility of the candidates shall have to be
judged with reference to that date and that date alone, is a
well-established one. A person who acquires the prescribed
qualification subsequent to such prescribed date cannot be
considered at all. An advertisement or notification
issued/published calling for applications constitutes a
representation to the public and the authority issuing it is
bound by such representation. It cannot act contrary to it. One
reason behind this proposition is that if it were known that
persons who obtained the qualifications after the prescribed
date but before the date of interview would be allowed to
appear for the interview would be allowed to appear for the
interview, other similarly placed persons could also have
applied. Just because some of the persons had applied
notwithstanding that they had not acquired the prescribed
qualifications by the prescribed date, they could not have been
treated on a preferential basis. Their application ought to have
been rejected at the inception itself. This proposition is
indisputable and in fact was not doubted or disputed in the
majority Judgment. This is also the proposition affirmed in
Rekha Chaturvedi (Smt.) v. University of Rajasthan and others
[1993 Suppl. (3) S.C.C 168]. The reasoning in majority
opinion that by allowing the 33 respondents to appear for the
interview, the Recruiting Authority was able to get the bests
talent available and that such course was in furtherance of
public interest is, with respect, an impermissible Justification.
It is, in our considered opinion, a clear error of low and an
error apparent on the face of the record. In our opinion, R.M.
Sahai, J. (and the Division Bench of the High Court) was right
in holding that the 33 respondents could not have allowed to
appear for interview."
(iii) In Bharat Petroleum Corporation Ltd and Ors Vs. Swapnil
Singh (supra), the Hon'ble Supreme Court has held in para no.7 as
under :-
"7. We have gone through the records of the case along with
the assistance of learned counsel for the parties and we find that
the brochure read with the application form is absolutely clear
in the sense that the applicant must be the owner of the
specified area of land or must have a registered lease deed of the
specified area of land on the date of application. The admitted
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position (which is also clear from the counter affidavit filed by
the respondent in this Court) is that on 13 th September, 2011
when the application for allotment was made, the respondent
was neither the owner of any land nor had any registered sale
deed/lease deed in her name. In fact, the lease deed came into
existence only on 20th December, 2012 and that was registered
on 21st December, 2012. Clearly, on the date of the application,
the respondent was not eligible in terms of the brochure and the
application form."
(iv) In Rajendra Bapurao Hande Vs. Bharat Petroleum Corporation
Ltd (supra) this Court has held in para 6 and 7 as under :-
"6. At the time of filling the application online, the petitioner
is not required to submit the documents. It is on the basis of the
information given by the petitioner in the application, the
respondent Corporation processes the papers. The petitioner, in
no uncertain words, represented that he is to be considered in
Group-1 and that he possesses Advocate's declaration to that
effect. If the petitioner would have represented as on the date
of filing of the application that the petitioner was not possessing
the Advocate's declaration/letter, the petitioner's application
could not have been considered from Group-1. However, the
petitioner represented that he possesses the Advocate's
letter and on the basis of that letter, the petitioner said his land
offered, be considered in Group-1. On the basis of such
representation, the petitioner was considered in Group-1. It is
not disputed that as on the date of the application filled in by
the petitioner viz. 25.12.2018, the petitioner was not possessing
the Advocate's declaration. The petitioner could get Advocate's
declaration on 24.06.2019.
7. The petitioner did not fill in the correct information in the
application. This Court cannot exercise the jurisdiction in favour
of a person who has filled in correct information and made
wrong representation."
(v) In Late Hariwanshrai Bacchan Bahu Uddeshiya Sevabhavi
Sanstha Paradh Bk. (supra) this Court has held in para no.7 as
under :-
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"5. According to the petitioner, the petitioner did not have
the fixed deposit amount in the Bank. The institute is required
to possess fixed deposit receipt of Rs.7,00,000/- in the Bank
account at the time of submitting the proposal. Respondent
no.5 had made a fixed deposit receipt of Rs.2,00,000/-
on 27.11.2015 and withdrew the said fixed deposit receipt on
13.04.2016. The proposal was recommended by the
University of the petitioner and respondent no. 5 in
November-2018. On the said date, respondent no.5 had not
deposited any amount as fixed deposit with the Bank.
Respondent no. 5 produced a forged receipt to show that an
amount of Rs.7,00,000/- is deposited in the fixed deposit
with the Bank of Maharashtra on 27.09.2018. The same is
forged receipt. The said fixed deposit was never created by
respondent no.5."
24. In Andhra Pradesh Public Service Commission Vs. Koneti
Venkateswarulu (supra), the Supreme Court has come heavily on the
respondent therein, who had indulged in the conduct of suppression
of information. Invoking the maxim of suppresso veri and suggestio
falsi, it has held in para no.10 of the judgment as under :-
"10. We are unable to accept the contention of the learned
counsel for the First Respondent. As to the purpose for which
the information is called, the employer is the ultimate judge. It is
not open to the candidate to sit in judgment about the relevance
of the information called for and decide to supply it or not.
There is no doubt that the application called for full employment
particulars vide Column 11. Similarly, Annexure III contained an
express declaration of not working in any public or private
employment. We are also unable to accept the contention that it
was inadvertence which led the First Respondent to leave the
particulars in Column 11 blank and make the declaration of
non-employment in Annexure III to the application. The
application was filled on 24.7.1999, the examination was held
on 24.10.1999, and the interview call was given on 31.1.2000.
At no point of time did the First Respondent inform the
appellant commission that there was a bonafide mistake by him
in filling up the application form, or that there was inadvertence
on his part in doing so. It is only when the appellant commission
discovered by itself that there was suppresso veri and suggestio
falsi on the part of the First Respondent in the application that
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the respondent came forward with an excuse that it was due to
inadvertence. That there has been suppresso veri and suggestio
falsi is incontrovertible. The explanation that it was irrelevant or
emanated from inadvertence, is unacceptable. In our view, the
appellant was justified in relying upon the ratio of Kendriya
Vidyalaya Sangathan (supra) and contending that a person who
indulges in such suppresso veri and suggestio falsi and obtains
employment by false pretence does not deserve any public
employment. We completely endorse this view."
25. We have already come to the conclusions that the
petitioner, far from being eligible to apply for selection, in fact
indulged in deplorable act of giving false information in the form.
Besides, inconsistent with the requirement of the advertisement she
was allowed to produce a certificate which was not mentioned in the
application form and which was also of a future date. Therefore, no
equities can be adjusted in her favour by reason of continuation of
service during pendency of the proceedings before the Tribunal and
this Court. Also, mere fact of appointment of Respondent No.4 in
another service cannot be a reason to condone the lapses committed
by the petitioner.
26. In the result, we do not find any infirmity in the view
taken by learned Tribunal in its order dated 22.04.2019. It is upheld
and the petition is dismissed. The interim protection granted in
favour of the petitioner is vacated. There shall be no order as to costs.
27. Rule is discharged.
.. 20 .. WP.5294.2019
28. Pending Civil Application stands disposed of.
( SANDEEP V. MARNE, J. ) ( MANGESH S. PATIL, J. )
GGP
