Pankaj vs Union Of India (Uoi)
2005 Latest Caselaw 1075 Del

JUDGMENT

Sanjiv Khanna, J.

1. The present Writ Petition is directed against the Order dated 13th April, 2005 passed by the Central Administrative Tribunal, Principal Bench, Delhi in Original Application No. 3066/2004 By the aforesaid Order, the learned Tribunal has dismissed the said Original Application and has upheld the Order dated 15th December, 2004 under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 (hereinafter referred to as the Rules for short) terminating the service of the petitioner on the round that the petitioner belongs to Jat community and therefore not entitled to appointment in Other Backward Classes category (hereinafter referred to as OBC , for short).

2. By advertisement published in Employment News dated 1-7th November, 2003, the respondent had called for applications for appointment on various posts under civilian category including one post of a Lower Division Clerk (hereinafter referred tos LDC, for short). The said post was reserved for OBC candidate. The advertisement was taken out by HQ Western Air Command (Unit), Air Force.

3. The petitioner who belongs to Jat community applied for the said post and submitted a certificate issued by the Deputy Commissioner (South West District) Delhi stating that the petitioner belongs to Jat community which is recognised as a backward class by the Government of National Capital Territory of Delhi vide Notification dated 20th January, 1995.

4. A letter of appointment dated 12th December, 2003 was issued by the respondent to the petitioner offering him appointment to a temporary post of LDC. It was stated in the letter that the appointment was temporary and the petitioner will be on probation for a period of two years. It was further stated in the appointment letter that appointment may be terminated at any time by a month' notice on either side without giving any reason.

5. Vide letter dated 15th December, 2004, the respondent terminated the appointment of the petitioner. In this letter, it is mentioned that the appointment of the petitioner was provisional and subject to verification of the OBC certificate given by him. The termination letter further states that on verification it was revealed that Jat community is not included in the Central List (Mandal List) of the OBCs and therefore the petitioner was not eligible for appointment as an OBC candidate. Accordingly, has services were terminated under Rule 5 of the Rules.

6. As already stated above, the termination Order was challenged before the Central Administrative Tribunal by filing an Original Application which stands dismissed by impugned Order dated 13th April, 2005.

7. Learned counsel for the petitioner submitted that there was no misrepresentation or concealment on the part of the petitioner and on the basis of the certificate dated 3rd November, 2003, issued by the Deputy Commissioner (South West Zone) Delhi, the petitioner was rightly appointed as a LDC, a post admittedly reserved for OBCs. He further stated that the respondent cannot be permitted and allowed to claim that the petitioner does not belong to OBC category and the principle of estoppel is applicable It is also contended that no show cause notice was issued to the petitioner before termination of his service and therefore there has been violation of principles of natural justice.

8. Learned counsel for the respondent, on the other hand, submitted that the petitioner was appointed as LDC on a post reserved for OBCs and on verification it was found that Jat community is not included in the Central List (Mandal List) of OBCs and therefore he could not have been appointed. The appointment of the petitioner was therefore void ab initio. Accordingly the petitioner's services were rightly terminated in accordance with letter of appointment dated 12th December, 2003 clearly specifying that the appointment of the petitioner can be terminated at any time by giving a monthG(tm)s notice on either side without assigning any reasons.

9. The first question which arises for consideration is whether the petitioner belongs to OBC category and was therefore entitled to appointment as an LDC in terms of the advertisement published in the Employment News for 1-7th November, 2003. It is admitted by learned counsel for the petitioner that Jat community is not included in the Central List (Mandal List) of OBCs. The said list has been prepared by the Central Government for purpose of appointment in reserved category posts meant for OBC.

Appointments to reserved posts for OBCs in the Central Government can only be given to candidates belonging to communities mentioned in the Central List (Mandal List). Candidates belonging to communities included in State Government lists are not eligible.

10. The appointment in the present case, as mentioned in the advertisement, was to be made by the HQ Western Air Command (Unit) Air Force which is a part of the Central Government. The Government of NCT of Delhi may have prepared its own list of communities falling in OBC category but that list is not relevant and material for appointment to a Central Government post for which a separate Central List (Mandal List) has been prepared. It is, therefore, apparent that the petitioner was not an OBC candidate and therefore not eligible for appointment to the post of LDC reserved for OBCs by the Central Government.

11. We also do not find merit in the contention that on the basis of principle of estoppel, the respondent could not have terminated the service of the petitioner vide letter dated 15th December, 2004 In support of his contention the petitioner had relied upon the judgment of the Supreme Court in the case of Sanatan Gauda versus Berhampur University and others reported at AIR 1990 SC 1075. The said judgment in our opinion is not applicable to the facts of the present case. In the said case, a student of a Law College had pursued his studies for two years and thereafter he was not being permitted and allowed to give his examination for Final year. In these circumstances, the Supreme Court applied the principle of estoppel and held that the petitioner therein was entitled to succeed. It may also be mentioned here that the Supreme Court has examined various rules and satisfied itself that the petitioner therein fulfillled the minimum qualification prescribed for admission to the law course.

12. It is a settled law that there cannot be an estoppel against law. A wrong appointment without proper verification cannot give any right to the petitioner who is a non-OBC to occupy a post reserved for an OBC category. An error or mistake of the nature, subject matter of the present petition, cannot be overlooked by applying principle of estoppel. Appointment of a non-OBC candidate to a post reserved for OBCs is not an irregularity but illegality which vitiates the appointment. The appointment itself as contrary to law and illegal. Principle of estoppel is therefore not applicable. It may also be relevant to state here that the appointment letter dated 12th December, 2003 gives right to the respondent to terminate the appointment of the petitioner by giving one month' notice. Therefore, the petitioner was aware that his appointment may be terminated.

13. During the course of arguments learned counsel for the petitioner referred to letter dated 29th July, 2004 written by Mr. M.P. Singh, Wing Commander to the Air Headquarter (VB) (PC-3), New Delhi-110011. He also drew our attention to the observations ade in the said letter. Learned counsel specifically referred to paragraph 'f' in the said letter and stated that in previous years, recruitment of OBC candidates was done on the basis of backward class certificates issued by different State Governments on the basis of notifications issued by them. Paragraph 'f' of the said letter is reproduced below:-

"Even in the previous years, recruitment's for OBC candidates was completed on the basis of backward class certificates issued by the different state Govt on the basis of notification issued by them. None indicated that whether it is for the state or for central Govt."

14. It was admitted by learned counsel for the petitioner that no such plea was raised before the learned Tribunal and the copy of the letter dated 29th July, 2004 was not part of the record before the Tribunal. Apart from that, we find that the letter dated 29th July, 2004 is merely an internal correspondence between an officer and the Air Headquarters. Mere recommendation for sympathetic consideration by an officer cannot override the legal position and what is relevant is the stand taken by the respondent. In paragraph 'f' of the said letter it is also not stated that the candidates appointed in the previous years to the posts reserved for OBCs did not belong to the Central (Mandal) Lists. Even in the Writ Petition, the petitioner has not stated and even details or names of the candidates so appointed, who did not belong to the Central (Mandal) List.

15. Moreover, a wrong appointment made contrary to law in previous years cannot give any legal right to the petitioner. Courts and Tribunals are meant to correct wrongs and illegal acts and not to put a stamp of approval on illegal acts by directing that illegality once done must be followed on the ground of equal treatment. Two wrongs never make a right. A mistake or an error made earlier cannot be given effect to for all times. The petitioner must base his case on merits and not on mistakes and error made earlier by the authorities. Reference in this regard may also be made to the decision of the Supreme Court in the case of State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. , wherein it has held as under:-

"30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favor of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favor of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. New Delhi Municipal Committee1 held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in a irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: (SCC p.465, para 9) "Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and erpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."

16. Learned counsel for the petitioner has also laid emphasis on the fact that no show cause notice was issued to the petitioner and, therefore, the termination letter dated 12th December, 2003 and the impugned Order dated 13th April, 2005 passed by the learned Tribunal are contrary to principles of natural justice and are liable to be set aside.

17. We do not find any merit in this contention. The principles of natural justice cannot be put into a straight jacket. In a given case, issue of show cause notice and personal hearing may be considered necessary for compliance of the principles of natural justice but the same principle may not be good and valid in other cases. In the present case, the facts are undisputed. It is admitted by learned counsel for the petitioner that Jat community is not included in the Central List (Mandal List) of the BCs and therefore we do not think that failure to give show cause notice has made any difference. Giving a show cause notice and considering reply is not for the sake of mere formality or a mechanical ritual.

18. In any case, the petitioner was heard and all his objections have been considered by the Central Administrative Tribunal against the Order of termination dated 15th December, 2004

19. The Supreme Court in its recent decisions has highlighted that to succeed in a writ petition under Article 226 of the Constitution of India the petitioner is required to plead and establish that some prejudice has been caused by failure to comply with the principles of natural justice. There is no such allegation or averment in the writ petition and neither any such contention was raised at the time of argument before us. No such argument it appears was also raised before the Central Administrative Tribunal. Reference in this regard may be made to the decision of the Supreme Court in the case of Divisional Manager versus Munnu Barrick and others reported at wherein it has been held that though compliance of the principles of natural justice is necessary but the same must be viewed with flexibility. Even in a case where the principles of natural justice have not been complied with, Court may insist upon proof of prejudice before setting aside the impugned Order. The Supreme Court referred to several other decisions in support of the above proposition. The petitioner has not been able to show what prejudice was caused to him by not giving him show cause notice and opportunity to reply and therefore in these circumstances we are of the opinion that the impugned Order dated 15th December, 2004 cannot be quahsed. Reference may also be made to the case of State of Uttar Pradesh and others versus Ramesh Chandra Manglik reported at .

20. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Shravan Kumar Jha and others versus State of Bihar and others reported at 1991 Supp.(1) SCC 330 and argued that the Supreme Court in the said case has held that where the appointment letter is cancelled without issue of show cause notice and compliance with the principles of natural justice, the same is liable to be set aside. As already stated above, the principles of natural justice cannot be putnto a straight jacket and depending upon the facts of each case, issue of show cause notice and hearing may be necessary before cancellation of an appointment letter. The present case we feel falls in the category of cases where issue of show cause notice or giving personal hearing has not caused any prejudice to the petitioner. Similarly, the petitioner has also relied upon two judgments of the Delhi High Court in the cases of N.K. Pawat versus Union of India and others reported at (2003) LIC 270 an Sudershana Devi versus Union of India reported at . In our considered opinion both these cases and the ratios laid down therein are not applicable to the facts of the present case. In the case of Sudershana Devi (supra) the employee therein had been working for 15 years and thereafter his services were abruptly terminated. Same is not the position in this case. In the case of N.K. Pawat (supra) this Court held that in view of the long passage of time, the employer cannot now be permitted and allowed to say that the appointment was not made after following a proper selection procedure. The present case is not one of selection procedure. The petitioner had admittedly applied for being appointed against an OBC reserved post but he is no an OBC and therefore he cannot be allowed and permitted to occupy a reserved post and deprive candidates belonging to OBC category from being appointed to the said post.

21. The judgment of the Supreme Court in the case of S.L. Kapoor versus Jagmohan reported at relied upon by the petitioner has been considered and explained in the case of Dr. J. Shashidhara Prasad v. Governor of Karnataka and Anr. reported at . In this case the Supreme Court held that Court will refuse to issue a writ which will be futile even if there was failure to observe the principles of natural justice. In the facts of the present case, it is undisputed an admitted that the petitioner does not belong to OBC community in the Central List (Mandal List). It is futile to set aside the Order dated 15th December, 2004 passed by the respondent only with the view to have a further round of litigation, when the en result is apparent and clear. It may also be noted that on the facts there is hardly any dispute which requires any clarification or comments from the petitioner for the Order dated 15th December, 2004 to be set aside and the matter be remanded back to the authorities.

22. In view of the above, we do not find any merit in the Writ Petition and the same is dismissed.

No costs.