Khem Chand vs Govt Of Nct Of Delhi & Anr.
2014 Latest Caselaw 2567 Del

     $~50
     * IN THE HIGH COURT OF DELHI AT NEW DELHI

     +            W.P.(C) 2958/2014 & CM No.6149/2014

     %                             Date of decision: 20th May, 2014


      KHEM CHAND                                     ..... Petitioner
                          Through :     Mr. Raman Duggal,
                                        Mr. Sudhir Kumar and
                                        Mr. Anish Shresta, Advs.

                          versus


      GOVT OF NCT OF DELHI & ANR.        ..... Respondents
                   Through : Ms. Ruchi Sindhwani, ASC
                             with Ms. Bandana Shukla,
                             Adv. with R.P. Sharma,
                             GI/STA and Mr. Ram
                             Narain, GI STA.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. The petitioner assails the order dated 19th December, 2013

passed by the Central Administrative Tribunal rejecting his

application being O.A.No.2068/2012.

2. The facts giving rise to the instant petition are largely

undisputed and to the extent necessary are noticed hereafter.

WP(C) No.2958/2014 page 1 of 19

3. We have called for the original record of the respondents and

carefully perused the same.

4. A requisition was made by the Government of NCT of Delhi

- respondent no.1 herein to the Delhi Subordinate Services

Selection Board (DSSSB for brevity) - respondent no.2 herein

resulting in publication of an advertisement no.03/07 by the

respondent no.2 in the Employment News. The respondents

thereby notified vacancies of 14 posts (12 in the category of

unreserved and 2 in the category Scheduled Caste) of

Instructor/Mathematics in the Department of Training and

Technical Education of the respondent no.1. As per the

advertisement, the respondents had notified the following

eligibility conditions: -

7. Educational and : 1. Matriculation or equivalent other qualifications From a recognized required for direct University/Board.

          recruits:-                 2. Diploma in Mechanical
                                        Engineering      from      a
                                        recognized Institute.
                                     3. One     year‟s     practical
                                        experience       in       an
                                        Engineering Workshop of
                                        repute.
                                                    OR

WP(C) No.2958/2014                                     page 2 of 19
                                         One year training at the
                                        Central Training Institute.

5. The advertisement also informed all candidates of the

following:-

"The selection of the above 14 candidates (UR 12, SC -

02) shall further be subject to the fulfilment of all eligibility conditions as prescribed by the statutory RRs and the terms and conditions of the advertisement indicated in the advertisement inviting applications and also subject to thorough verification of their identity with reference to their photographs, signatures, handwriting and thumb impression etc., on the application forms, admit card, etc. The candidature of candidate is liable to be cancelled by the user Department also, in case the candidate is found not fulfilling the eligibility conditions or for any other genuine reasons. The competent authority of the user Department shall arrange to verify the correctness of information/documents as furnished in the application form after verification of the same from the original documents. Mere inclusion of name in the result notice does not confer any right upon the candidate over the post."

6. It is an admitted position that petitioner submitted an

application as Scheduled Caste candidate; successfully appeared in

the written examination and by the notice No.22 dated 6th April,

2011 was provisionally selected as one of the two scheduled caste

WP(C) No.2958/2014 page 3 of 19 category candidates for the post of Instructor/Mathematics apart

from 12 candidates in the unreserved candidates.

As a result, the respondent no.2 forwarded the dossier of the

petitioner along with the other selected candidates to the

respondent no.1 for issuing the offer of appointment to the selected

candidates after due verification.

7. The respondent no.1 had found the educational certificate

and the caste certificate of the petitioner as genuine. We, however,

are concerned with the verification effected of the experience

certificate submitted by the petitioner. To support his plea that he

possessed the requisite one year experience in an engineering

workshop of repute, the petitioner had submitted a certificate dated

8th June, 2006 issued to him by "TANDAN Diesel Service. As per

the letter head, the firm was located at 3778 Mori Gate, Delhi -

110006. The certificate dated 8th June, 2006 was in the following

terms:

"Certificate

To Whomsoever It May Concern

This is to certify that Mr. Khem Chand has been

WP(C) No.2958/2014 page 4 of 19 working in Tandan Diesel Service since 02nd May 2003 to 13th May, 2006 as a Assistant/helper (Mech.)

His performance in this period was good. He bears a good moral character. We hope for his prosperous future."

8. When the respondents attempted to verify the certificate at

the address on the letter head, no response was received from the

firm. As per the record, at this stage, the petitioner submitted a

letter dated 24th October, 2011 to the respondent no.1 informing

that the firm which had issued the experience certificate had

changed his address since the issuance of the certificate and that it

was at the following address:

TANDON Diesel Service, Shop No.3794/3, (3rd in the Gali), Mori Gate, (in front of Bholla Ram Market), Delhi - 110 006.

The petitioner informed the respondents that in case they

wanted to exchange correspondence with the firm, they should

communicate with the firm on this address.

9. Consequently, the respondent no.1 sent a letter dated 4th

November, 2011 to the proprietor of the firm at the address

WP(C) No.2958/2014 page 5 of 19 disclosed by the petitioner, enclosing the copy of the experience

certificate of the firm submitted by the respondent to the petitioner

requesting verification thereof.

10. The original record produced before us discloses that in

response to its letter dated 4th November, 2011, the proprietor of

the firm responded by a communicated dated 28 th November, 2011

which reads as follows:

      "Ref. No. TDS                             Dated : 28/11/11
      2/2011

      TO,
             DEPARTMENT OF TRAINING &
             TECHNICAL EDUCATION
             MUNI MAYA RAM MAR,
             PITAMPURA, DELHI - 110088

      REF: -         LETTER NO.F.21(12)/96/TRG. ADMN./
                     1239 / 6939 DATED 04.11.2011

                  TO WHOM IT MAY CONCERN

Certified that Sh. Khem Chand S/o Sh. Padam Singh has worked in this workshop as Assistant/Helper Mechanical from 02nd May 2003 to 13 May 2006.

He bears a good moral character.

We wish him all the best for his future career."

WP(C) No.2958/2014 page 6 of 19

11. It is important to note that the letter head on which the

certificate dated 28-11-11 was typed describes the name and

address of the firm as TONDON Diesel Service, 3793/3, Kucha

Ravi Das, Opp. Bhola Ram Market, Mori Gate, Delhi 110006.

12. This communication was also sent to the respondents by

registered speed post. The original envelope is also available in the

records wherein the address of the sender is scribed in hand writing

and reads as follows:-

TONDON Diesel Service 3793/3, Kucha Ravi Dass, Opp. Bhola Ram Market, Mori Gate, Delhi 110006.

13. The name and address of the firm as scripted on the envelope

in hand writing corroborates the certificate dated 8th June, 2006

which had been filed by the petitioner along with his application,

certifying that he had worked in the workshop as Assistant/Helper

Mechanical from 2nd May, 2003 to 13th May, 2006.

14. In fact, the issue of the petitioner‟s experience stood

conclusively settled and no doubt ought to have remained hereafter

so far as the experience of the petitioner is concerned. However,

WP(C) No.2958/2014 page 7 of 19 the matter did not end here. We find that inexplicably, yet another

communication dated 15th December, 2011 was issued by the

respondents, again addressed to the proprietor of „Tandan Diesel

Service, Shop No.3794/3, 3rd in the Street, Mori Gate, Opp. Bhola

Ram Market, Delhi - 110006‟referring to the verification dated 18th

November, 2011 of the experience certificate issued by the firm.

By this letter, verification was sought by the respondents from

proprietor of the firm as to the name of the company for the reason

that name on the letter heads was reflected as "TONDON DIESEL

SERVICE" while the rubber stamp affixed was mentioning the

firm‟s name as "TANDON DIESEL SERVICE" while on the

original certificate, the firm was referred to as "TANDAN DIESEL

SERVICE".

14. It is undisputed that this communication was sent by the

respondents by speed registered post. The firm responded

promptly by a certification sent by registered speed post to the

respondent no.1 on 16th December, 2011, again on a letter head

wherein the address of the firm was reflected as 3793/3, Kucha

Ravi Das, Opp. Bhola Ram Market, Mori Gate, Delhi 110006.

WP(C) No.2958/2014 page 8 of 19 Reference was made to the letter of respondent no.1 dated 13 th

December, 2011, and it was once again certified that Shri Khem

Chand, the present petitioner had worked in the workshop as

assistant/helper mechanical for the aforenoticed period. The firm

certified the good moral character of the petitioner as well.

We may note that this letter is erroneously dated 16th

November, 2011. It refers to the letter of the respondent no.1 dated

13th December, 2011. The original envelope available in the shows

that it has been posted on 16th December, 2011. There is thus an

error in mentioning „November‟ in the date which is actually

„December‟.

15. It may also be noted that the address on the envelope in

which the certificate was sent on 16th December, 2011, the

following name and address of the firm stands scribed in hand:

"Tandon Diesel Service Sh. No.3794/3, 3rd In the street, Mori Gate, Opp. B. Ram Market, Delhi 110006"

16. It is noteworthy that all letter heads of the firm on record

WP(C) No.2958/2014 page 9 of 19 contain the following two telephone numbers:-

2925217 2947828 PP

17. It would appear that the spelling of the surname „Tandon‟

has been varied on the letter head as is borne out from the

endorsement of the name of the firm on the various envelopes and

letter heads. There can be no dispute at all with regard to the

identity of the firm. The respondent no.1 had sent its letters

seeking verification by posts. The firm responded to the same

under registered covers by speed post. Therefore, irrespective of

the communication being sent to "TONDON Diesel Service" or

"TANDON DIESEL SERVICE" or to "TANDAN Diesel Service",

it was duly received and identical responses received. It is evident

that spelt in any manner as noted above, the reference is to one and

the same person and firm which has responded to the query made.

18. The original record also contains an official noting which

has been numbered as 291 dated 27th February, 2012 which records

that the firm‟s response stood received by post and that the

WP(C) No.2958/2014 page 10 of 19 experience certificate with regard to the petitioner was found

„okay‟. The noting notes that on a physical verification report was

not found genuine. It is because of this stand of the respondents

that it becomes necessary to also refer to the physical verification

which the respondent no.1 claims to have effected. This

verification reflects an extremely sordid state of affairs.

19. Mr.Tandon, the proprietor of the TANDON DIESEL

SERVICE sent a letter dated 19th March, 2012 to the Secretary of

the Department of Training and Technical Education, Government

of NCT of Delhi Muni Maya Ram Marg, Pitam Pura, Delhi -

110088 referring and enclosing the letters dated 4th November,

2011 and 13th December, 2011 sent by the respondents. He adverts

in detail as to what transpired when the inspector of the respondent

visited the firm to effect physical verification of the certificate

issued by the firm in respect of Khem Chand.

20. The letter dated 19th March 2013 also reiterates that Khem

Chand had worked in this workshop as Assistant/Helper

Mechanical from 2nd May, 2003 to 13th May, 2006. It confirmed

that the aforenoticed letters dated 28th June, 2006; 28th November,

WP(C) No.2958/2014 page 11 of 19 2011 and 16th December, 2011 had been sent by the firm to the

respondents.

The original record of the respondents again shows that the

letter dated 19th March, 2012 was sent by registered speed post by

TANDON Diesel Service and was received in the office of the

respondent no.1 on 23rd March, 2012.

21. Grave anxiety has been expressed by the proprietor in this

letter when he narrates the manner in which the firm was

pressurized by the Inspector under the pretext of the physical

verification. In the letter dated 19th March, 2012, the proprietor of

the firm has stated thus:

"It is further stated that after some time, one person, Mr.Malik came in person and enquired about the experience certificate of Sh. Khem Chand. He also shown the copy of the experience certificate issued by my Supervisor on 28.06.2006 to Shri Khem Chand.

Further, he told me to show his attendance register relating to the period during his tenure of service in my workshop and also demanded Sale Tax Number etc. It is submitted that the records of this period cannot available with me. Then he asked me to give in writing that the signature on the experience certificate is not mine. It admitted that the signature is not mine and the experience certificate was signed by my supervisor, who was authorized to issue such type of certificates. Actually, Mr. Malik cheated me

WP(C) No.2958/2014 page 12 of 19 and took my signature to use this certificate at their own, to prove as fake. The fact is that Shri. Khem Chand has worked in my workshop as Assistant/Helper Mechanical from 2nd May 2003 to 13th May, 2006. It is also a fact that earlier my workshop was situated at 3778, Mori Gate, Delhi - 110006, which I have shifted to new address at 3793/3, Kucha Ravi Das, Opp. Bhola Ram Market, New Delhi - 110006."

22. It is therefore, apparent that in the guise of physical

verification, the Inspector who was sent to verify the same has in

fact harassed the firm‟s proprietor for extraneous reasons, which

are not disclosed. The grievance of the sole proprietor reflected as

above shows how the inspector sent by respondents, pressurized

the firm to disown its pervious certificate.

23. It is noteworthy that even the physical verification by

Mr.Malik establishes the existence of TANDON DIESEL

SERVICE at the given address. This puts the issue of identity of

the firm beyond the pale of suspicion.

24. Our attention is drawn to the endorsement made on a

photocopy of the certificate dated 28th November, 2011 which is to

the effect that TANDON Diesel Service exists at the above

WP(C) No.2958/2014 page 13 of 19 mentioned address since 1986. "I never changed my address

during this period" Interestingly, even in this certificate there is

no denial to the fact that Khem Chand had worked with the firm as

Assistant/Helper Mechanical.

25. So far as change of address is concerned, the same has been

informed by the firm in its communication. No effort has been

made by the respondents to verify the address of the firm for the

year 2006 when the original certificate was issued.

26. Ms. Ruchi Sindhwani, learned counsel for respondent no.1

relies on the endorsement made on the certificate dated 8 th June,

2006 to the effect that "this experience certificate was not issued by

me - and signature not signed by me"

Here again the respondent no.1 has gravely erred in

construing the certificate. The proprietor of the firm has clearly

explained the circumstances in which he was compelled to sign the

letter by the inspector. The proprietor has also explained that the

certificate dated 28th June, 2006 was signed by his supervisor who

was authorised to issue such type of certificate and not signed by

him.

WP(C) No.2958/2014 page 14 of 19

27. Placing reliance on the above statement on the certificate

dated 8th June, 2006 a report has been submitted by one Shri Anil

Malik dated 13th January, 2012.

28. As per the communication dated 19th March, 2012, the

statement that the certificate of 2006 was not signed by him was

correct. However, the proprietor of the firm had clearly explained

that the experience certificate was signed by his supervisor who

was authorized and who had issued the certificate under various

authority.

29. We are further informed that so far as the verification which

the inspector claims to have procured is not in the hand writing of

the sole proprietor. The circumstances in which his signature was

obtained have been explained in the letter dated 19 th March, 2012

by the proprietor of the firm.

30. The proprietor of the firm has denied the correctness of the

endorsement dated 28th November, 2011, while reiterating the

contents of the earlier certificate on which it was endorsed. Yet the

respondent no.1 relied upon the endorsement to discredit the

certificate so as to deny the consideration for the appointment to

WP(C) No.2958/2014 page 15 of 19 the petitioner.

31. There was therefore, no reasons to doubt the correctness of

the authenticity of the certificate dated 8th June, 2006 (wrongly

referred as 28th June, 2006 in some places of the record).

32. We are informed by Ms. Ruchi Sindhwani, learned counsel

that the petitioner‟s dossier was returned to the respondent no.2 on

the 22nd March, 2012. The letter dated 19th March, 2012 is stated

to have been received by the respondent No.1 on the 23rd March,

2012 as per the diarization on the original in the record. The same

has been completely ignored by the respondents. Even if the letter

dated 19th March, 2012 had not been received, the above narration

would show that there is no reason to doubt the letter dated 28 th

November, 2011 and 16th December, 2011 (wrongly mentioned as

16th November, 2011) received by respondent No.1 in response to

its letters of 4th November, 2011 and 15th December, 2011.

33. A facade of suspicion has been created based on the

differential spelling of „Tandon‟ in the name of the firm. In fact

the firm itself has used different spellings for the surname „Tandon‟

as appears in the various communications. The doubt thus was

WP(C) No.2958/2014 page 16 of 19 completely without any basis, factually or legally.

34. It is not disputed before us that the educational qualifications

of the petitioner as well as his caste certificate as his belonging to

the scheduled caste stand duly verified. The petitioner had

successfully participated in the selection process and he was denied

in the favourable consideration and appointment by the respondents

on an erroneous and misconceived notion that he had submitted

false experience certificate.

35. Even though the dossier of the petitioner had been sent by

the respondents to the respondent No.2 on the 22nd March, 2012,

nothing prevented the respondent no.1 from recalling the same and

proceeding in the matter in the light of the statements made in the

letter of 19th March, 2012. The petitioner belongs to the Scheduled

Caste category and deserved the special treatment which law has

mandated qua him. There is no dispute also that the vacancy for

the post for which the petitioner had applied, still exists and there is

no legal prohibition to the appointment of the petitioner.

36. In view of the above discussion, the finding of the Tribunal

to the effect that the experience certificate issued to the petitioner

WP(C) No.2958/2014 page 17 of 19 by Tandon/Tondon submitted by the respondents was not genuine

is also contrary to the record as well as established facts.

Respondent no.1 was not justified in returning the dossier of the

applicant to respondent no.2 or denying appointment to the

petitioner for this reason.

It is accordingly directed as follows:-

(i) The order dated 19th December, 2013 is hereby set aside and

quashed.

(ii) A direction is issued to respondent no.1 to proceed in the

matter of appointment of the petitioner for the post of

mathematician/instructor pursuant to the selection process

initiated by the notice advertised No.03/2007 published by the

DSSSB.

(iii) The respondent shall pass appropriate orders in regard thereto

within a period of four weeks and communicate the same to

the petitioner forthwith. Given the fact that the petitioner was

wrongly denied consideration by the respondents, the

petitioner shall be entitled to consequential benefits of

protection of seniority, notional pay, etc.

WP(C) No.2958/2014 page 18 of 19

(iv) It is made clear that petitioner shall be placed in the seniority

list as per his merit in the selection process in question.

(v) The petitioner shall not be entitled to arrears of salary.

The writ petition and pending applications are allowed in the

above terms.

Dasti.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE MAY 20, 2014 mk

WP(C) No.2958/2014 page 19 of 19