Delhi High Court
Govt Of Nct Of Dlehi & Anr. vs Priyanka on 22 September, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 02.02.2022
% Judgement pronounced on: 22.09.2022
+ W.P (C) 6526/2021 & CM APPL. 20512/2021
GOVT OF NCT OF DELHI & ANR. ..... Petitioners
Through: Mrs Avnish Ahlawat, SC, GNCTD
with Mr Neeraj Pal and Mrs Palak
Rohmetra, Advs.
versus
PRIYANKA ..... Respondent
Through: Mr Sahib Gurdeep Singh and Mr S.
Rai Sethi, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
TALWANT SINGH, J.:
1. By way of this writ petition, the Government of NCT of Delhi has
challenged an order dated 17.02.2021 passed by the Central Administrative
Tribunal (in short 'the Tribunal'), Principal Bench, New Delhi in O.A.
4228/2018.
2. The brief facts as narrated by the petitioners are that on 28.05.2010,
Department of Social Welfare, Government of NCT of Delhi had engaged
Welfare Officer/Protection Officers on contract basis from the list provided by
an outsourcing agency, namely Intelligent Communication Systems India
Limited (ICSIL) and these contractual engagements were made from time to
time. Later on when the relevant records were examined, discrepancies in initial
engagement order in respect of the present respondent were noticed and her case
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was not submitted for ex-post facto approval to be obtained from the Hon'ble Lt.
Governor.
2.1 As per the petitioners, the respondent's name did not figure in the
sponsored list but her engagement order was issued separately on 12.08.2010 and
renewed on 12.09.2011 onwards. Her order of engagement states that her
candidature was sponsored by ICSIL vide letter dated 25.05.2010; which resulted
in her being appointed as a Welfare Officer. However, in fact, name of one Ms
Priyanka, daughter of Shri Anil Kumar was sponsored by ICSIL and was shown
at serial no. 12 of the list forwarded by ICSIL and who had been working in the
Welfare Department since the date of her initial engagement.
2.2 It is submitted that, the present respondent was appointed fraudulently
against the name of the said Priyanka, although her name was not there in the list
of candidates sponsored by ICSIL. Sufficient opportunities were given to the
respondent vide letters dated 14.03.2018 and 02.05.2018 to prove and provide
documentary evidence to the effect that she was registered with the manpower
agency M/s ICSIL and that her name was sponsored for engagement to the post
of Welfare Officer by M/s ICSIL. The respondent failed to provide any such
document in proof.
2.3 The initial engagement of the respondent was not made as per the
procedure adopted by the Government, which was to offer contractual
employment to the candidates sponsored by ICSIL; no ex-post facto approval of
the Lt. Governor concerning her initial engagement and subsequent continuation
was sought. Consequently, vide order dated 23.10.2017 her contractual
engagement was discontinued.
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2.4 The respondent filed O.A bearing no. 3101/2018 before the Tribunal. Vide
order dated 17.08.2018, the Tribunal directed the present petitioners to decide the
representation submitted by the respondent by passing a speaking order. In
compliance thereto, a detailed speaking order dated 17.09.2018 was passed,
reiterating the above-mentioned facts and after stating that the respondent had
illegally taken advantage of having common first name with another person, who
was actually and originally sponsored by ICSIL and, who had joined the
department and has been continuously working.
2.5 Thereafter, the respondent filed O.A. no. 4228/2018 before the Tribunal
challenging the rejection order dated 17.09.2018 on the ground that she is fully
qualified and eligible for appointment as Welfare Officer on contractual basis and
she cannot be replaced with another contractual employee. Vide interim order
dated 15.11.2018 petitioners were directed to engage the services of respondent
on contract basis, provided work is available and in preference to her
juniors/freshers/outsourced employees. A detailed counter affidavit was filed by
the petitioners before the Tribunal, specifically taking the ground that the present
respondent was not sponsored by ICSIL, and therefore, the petitioners sought
dismissal of the O.A. filed in the Tribunal.
2.6 The respondent filed Contempt Petition no. 356/2019 seeking
implementation of interim order dated 15.11.2018. This contempt petition was
closed vide order dated 19.01.2021 on the ground that the direction was to avail
the services of respondent on contractual basis, provided there was any work and
since it was difficult to come to a conclusion as to existence of any work, it could
not be carried further. Consequently, O.A. was listed for hearing on 02.02.2021.
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2.7 Arguments were heard by the Tribunal and vide impugned order dated
17.02.2021, the O.A. was allowed; petitioners were directed to renew the contract
of the respondent within four weeks from the date of receipt of the certified copy
of the order. This order has been challenged by filing the present writ petition on
the grounds that the learned Tribunal did not appreciate that the respondent is not
the same candidate, who was sponsored by the outsourcing agency and she has
taken undue advantage of having common first name with another person, who
is still working with the petitioners; the respondent had misled the Tribunal by
posing as another Priyanka, whose name was sponsored by ICSIL vide letter
dated 25.05.2010 and the present respondent had never applied to the outsourcing
agency or to the petitioners for such contractual appointment; the respondent
obtained the job through deceitful means and her contract was ordered to be
renewed by the Tribunal only on the ground that although she could not furnish
any record but she had been engaged for the last seven years and her work had
been found to be satisfactory, so the matter of sponsorship no longer was to be
relevant; the Tribunal failed to appreciate that in compliance of earlier directions
in O.A. No. 3101/2018, a detailed speaking order was passed, mentioning the
reasons for discontinuance of the service of the respondent; it is settled position
of law that illegality makes an act or transaction null and void and an illegal
appointment made contrary to Article 14 of the Constitution is void ab-initio;
where appointment of the petitioner is ex facie illegal, the issuance of
appointment letter conferred no legal right; allowing an ineligible candidate to
continue amounts to giving premium to dishonesty and manipulation and nobody
can be allowed to continue in service merely because some time has been taken
in litigation or on the ground of misplaced sympathy.
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3. This writ petition was first taken up for hearing on 14.07.2021. Mrs.
Avnish Ahlawat, learned standing counsel for the petitioners, filed an additional
affidavit which came on record after 23.07.2021. The respondent was given
liberty to file affidavit in reply to the said additional affidavit. On 23.09.2021, it
was observed that the petitioners do not wish to file a rejoinder to the affidavit-
in-reply. Written submissions were also filed by the respondent. Both the parties
also filed copies of judgments in support of the respective stands. Arguments
were heard on 02.02.2022. No formal notice was issued in the present writ
petition but since the petition, additional affidavit and reply affidavit are on
record, we deem it proper to issue a formal notice and since the pleadings are
complete, we proceed further to decide the writ petition on merit. In response to
certain queries, another additional affidavit was filed by petitioners on
22.03.2022 clarifying the present status of three persons with the same first name
'Priyanka'.
4. In the counter reply on behalf of the respondent, it is mentioned that the
learned Tribunal has appreciated the facts that the respondent has provided seven
long years of satisfactory service, good performance reviews and the department
is attempting to shift blame on the respondent for not being able to trace her
service file. It has been denied that the respondent has taken any advantage for
having a similar name with that of any other candidate, who was sponsored by
ICSIL. Respondent has supported the decision of CAT and has prayed that the
petition be dismissed.
5. Learned counsel for the petitioners, during arguments, has reiterated the
stand of the department as enumerated above.
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6. On behalf of the respondent, it has been reiterated that the Tribunal
dismissed the contentions of the petitioner department on the ground that
respondent admittedly possessed all the requisite qualifications and she had been
working for seven years in the department as Welfare Officer. All original
documents of the respondent were lying with the department in her service file
and she cannot be asked to furnish fresh records only on the ground that the said
file has been misplaced.
6.1 Further, the ICSIL has admitted, in its own order dated 09.04.2018, that
the respondent was sponsored by ICSIL, on objective examination of the relevant
documents. The other Priyanka, daughter of Anil Kumar is an active employee
of the department, so there is no question of impersonating her by the respondent.
6.2 The question of identical names came into light in 2011, when the first
renewal of the employment was due and the name of the respondent was added
in the renewal list dated 25.05.2011. So, original appointment of the respondent
was ratified by Superintendent (Admin). Even if it is assumed that the name of
the respondent was not sponsored by ICSIL, it does not make the appointment of
the respondent illegal as the candidate should lack requisite qualification to make
her ineligible for the job. The department is under no obligation to only appoint
the candidates sponsored by the employment exchange. The Government
undertakings are under the mandate of Article 16 of the Constitution to call for
names of the candidates, not just from employment exchange but from the open
market also.
6.3 The allegation of fraud and misrepresentation has no speck of truth or logic
as the other Priyanka is still working with the petitioners and the department is
well aware since 2011 of the existence of two Priyankas on its employment rolls.
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The respondent has good service record for the last seven years and as per law,
where appointment was made long back, the selection should not be disturbed.
7. To appreciate the right context in which the events happened, it is
necessary to have the relevant communications/note sheets on record. The first
such instance was the forwarding of a list by ICSIL vide its letter dated
25.05.2010 to the petitioner Department. The said letter dated 25.05.2010 along
with Page 1 of Annexure R-1, which deals with Welfare Officers, is reproduced
here under:
"ICSIL/Manpower/Dept of Women & Child/2010
Sh. K.K Bhalla
Sr. Superintendent
Department of Women & Child Development
Govt, of N.C.T OF Delhi,
Canning Lane, K.G.Marg,
New Delhi-1 10001.
Sub: Recruitment of Child Welfare Officer, Protection Officer &
Counsellor on contract basis.
Dear Sir,
This is in reference to your letter No. F.No. 9(31)
WCD/Admn/10/42063, 42014 & F42(74)06/Estt/DWCD/10/539-541
dated 22.03.2010 & 12 April 2010.
We are enclosing herewith the list of selected candidates selected by the
interview committee, 17 Child Welfare Officers, 2 Protection Officer
& 13 Counsellor.
All the supporting documents related to the candidates selected have
already been submitted to your office for record. The record of other
candidates in waiting list is available in our office.
Thanking you,
Your Sincerely
For Intelligent Comm. Systems India Limited."
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S. NAME FATHER'S DOB ADDRESS CONTACT QUALIF-
No NAME NO. ICATION
.
1 ASHA RANI S.S. BALHARA 2-Aug
H.No.K-14A, 9210686497 M.S.W
AMAR 1979
COLONY, OPP.
RAJDHANI
PARK
NANGLOI -
DELHI-41
2 EVA KUSUM LATA 16-19- C-747, DELHI 9250239777 M.S.W
SEATANTRA 1985 ADMINISTR-
ATION FLATS
TIMAR PUR,
DELHI-54
3 HEMANGINI PANKAJ VERMA 21- 402, 3rd FLR, 9868023867 M.S.W
Dec- 1043-5, WARD
1981 No. 8,
MEHRAULI,
N.D.-30
4 JAYPRAKAS GOPALAKRISHN 17-Jan- WZ-170/C, 9560278424 M.S.W
HG AN NAIR 1984 NEW RANJIT
NGR, WEST
PATEL NGR,
DELHI
5 KAVITA ANAND GUPTA 19- 14/421 D.D.A. 9868010944 M.S.W
GUPTA Mar- FLAT,
1981 KALKAJI, N.D-
6 LATA RANI RAVI 17-Oct- H.No-A, BLK- 9278816406 M.S.W
SEHRAWAT 1978 41, V.NANGAL
DEWAT,
VASANT
KUNJ, NEAR
SPINAL
INJURIES
HOSPITAL
7 LOV KUMAR RAM KUMAR 20-Sep- F.No-811, 9990062649 M.S.W
DHAWAN DHAWAN 1986 REGENT BLK.
SUPERTECH
ESTATE,
VAISHALI,
SEC-9,
GHAZIABAD
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8 MOHASIM MD SHAFIQUE 2-Oct- MISTRY TOLA 8802439978 M.S.W
AKHTER ANSARI 1981 MADHUBANI
PURNEA,
BIHAR-854307
9 NEERA DHARAM 28-Sep- H.No-9, GALI 9868622914 M.S.W
CHAND 1979 No-1, SAKET
BLK,
MANDAWALI,
DELHI-92
10 POONAM DR. RP SINGH 27-Jul- RZ-52/3 9990076953 M.S.W
SINGH 1982 SOUTH
EXTENSION
PART-3 NEAR
ADARSH
MODEL
SCHOOL,
UTTAM
NAGAR NEW
DELHI-59
11 PRADEEP SURENDER 19-Jul- E-74, 9968061137 M.S.W
KUMAR KUMAR 1984 SIDDARTHA
NGR, NEAR
ASHRAM,
N.D.-14
12 PRIYANKA ANIL KUMAR 16-Jul- H.No-RB3/55, 9990393702 M.S.W
1986 LEKHU NGR
TRI NGR
DELHI-35
13 PUSHPLATA ASHOK 22-Feb- H.No-551 B, 9891428872 M.S.W
GHOKINDA SEHRAWAT 1979 VALMIKI
MOHALLA, V-
NANGLOI,
DELHI-41
14 RENU SH. HARI 10-Jul- GH/E/258, 9250831330 M.S.W
GUPTA SAWROOP 89 PASCHIM
VIHAR, NEW
DELHI 87
15 SHASHANK VIRENDRA 15-Oct- E-93, NEHRU 9450900013 M.S.W
SINGH SINGH 1982 VIHAR,
TOMAR TIMARPUR,
N.D.-54
16 SHWETA HARENDRA 19/07/ FLAT No-G2, 9971220803 M.S.W
SINGH PRATAP SINGH 1986 PLOT No-86,
RAMPRASTH
A GREEN,
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VAISHALI,
SEC-5,
GHAZIABAD
17 YOGESH A.L. SHARMA 17- F-32 9868925423 M.S.W
KUMAR Aug- ERSAROOP
SHARMA 1979 COLONY,
FATEHPURI
BERI, N.D. 74
7.1 It is pertinent to note that Item No. 12 in this list is a candidate named
Priyanka, daughter of Shri Anil Kumar, having Mobile No. 9990398702.
8. The second aspect to be noted here is a note sheet dated 05.08.2010, which
deals with resignation of one Priyanka and proposal was mooted to engage the
present respondent in her place. The said note sheet bearing Page No. 3/N is
reproduced here under:
"Contd-
the contractual welfare officer Smt. Priyanka posted as CHD-I has resigned
on03.08.2010 replacement may be given from panel pl.
Sr. Supdt. (Admn) 5/8/2010
In place of who has resigned, the dept. may hire contract a candidate who was
interviewed in ECSI by ULS. Her name is Priyanka and is M.A.(SW)and was by far
best candidate. She did not join as she couldn't be contacted earlier. If agreed she
may be called for an interview.
Ms. Priyanak has been telephonically informed (9811365575) to attend interview
on11/8/2010 at 12:00 afternoon.
Di (WCD)
She met me today. We may hire her on contract.
Please put up for further orders."
8.1 The above note sheet projects that this Priyanka/respondent did not join as
she could not be contacted earlier and she was later interviewed. The contact No.
on which she was telephonically informed to attend the interview is 9811365575,
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which is apparently a different telephone No. from the telephone No. of Priyanka,
who was selected in the panel of Welfare Officers forwarded by ICSIL.
9. The Director (WCD) had put a note that the respondent had met him and
he directed for hiring her on contract and accordingly, she was engaged on
contract and was posted as Welfare Officer vide order dated 12.08.2010. The
office order dated 12.08.2010 regarding appointment of the present respondent is
reproduced here under:
"DEPARTMENT OF WOMEN & CHILD DEVELOPMENT
GOVT. OF N.C.T. OF DELHI
1 CANNING LANE; K.G. MARG
NEW DELHI- 110001
F. No. 9 (40)/Admn/WCD/Misc/09 11134-139
OFFICE ORDER
Consequent upon her name sponsored for the post of Welfare Officer on contract
basis (on a fixed salary of Rs. 15000/- per month) by ICSIL vide their letter No.
ICSIL/Manpower/Dept of Women & Child Development/2010 dated 25.05.2010 and
after being reported for duty on 12.08.2010 in the Department, Ms. Priyanka is posted
in CHG-I, Nirmal Chhaya Complex, Jail Road, New Delhi-64.
The above placement is subject to the production/verification of original
certificates, residential proof, ID proof and medical fitness certificate from any
medical attendant.
This issues with the prior approval of Competent Authority."
9.1 It is to be noted here that this office order specifically refers to the name
of the present respondent being sponsored by ICSIL vide letter dated 25.05.2010,
whereas copy of the letter reproduced herein above in para 12 shows that it was
Ms Priyanka, daughter of Shri Anil Kumar, whose name was sponsored by letter
dated 25.05.2010 and it was not the present respondent being Priyanka, daughter
of Shri Sant Lal, whose name was sponsored. So, the basis of issuance of this
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initial appointment letter is wrong and misconceived as the name of the present
respondent was never sponsored by ICSIL.
10. The next important document is note sheet at Page 6/N, which was
generated on 01.09.2011, i.e., at the time of grant of extension to the present
respondent. The same is reproduced here under:
"May kindly see the application Welfare of Ms Priyanka Aggarwal, Welfare (on-
contract) vide) placed Opposite. vide which she has requested that she (Priyanka)
posted at Children Home for Girls-II, Jail Road has completed the duration of her
contract on 12.08.2011 and accordingly her contract may be renewed,
In this connection, it is submitted that vide Office order No.
F.9(40)/Admn./WCD/Misc./09/11134-139 dated 12.08.2010 {6/C}. Ms. Priyanka
was posted at CHG-I mentioning "consequent upon her sponsored for the post of
Welfare Officer on contract (on a fixed salary of Rs. 15000/- P.M.) by ICSIL vide
their letter No. ICSIL/Manpower/Deptt, of Women & Child Development
Department/2010 dated 25.05.2010 and after being reported for duty on 12.08.2010
in the Department Ms. Priyanka is posted in CHG-I subject to production/verification
of original certificate, residential proof, 1D proof and medical certificate from any
medical attendant"
On perusal of the aforesaid letter dated 25.05.2010 of ICSIL the name of one
Priyanka D/o Sh. Anil Kumar exists at Sr. No. 12 (Flag 'A') and the Priyanka in
question whose representation is under consideration is different from that Priyanka
because the father's names of both ore different as mentioned. In list of ICSIL as Anil
Kumar and 2 other is on agreement filed by one i.e. Shri Sant Lal
Ms. Priyanka whose name was sponsored by ICSIL resigned on 03-08-2010 as per
note 3/N ante and then Ms. Priyanka D/O Sh. Sant Lal was appointed as per the
approval of worthy Director, DWCD after having been got the interview in ECSIL
by the then Sr, Supdt. {Admn,} and Smt. Renu Love.
The Finance Department has concurred the extension of services of 17 Welfare
Officers for further one year for consolidated salary of Rs.15000/- on Contract basis
vide UO No.36 dated 13.05.2011 and out of these 17 posts, the services of 16 Welfare
Officers has been extended for a further period of one year vide this office letter NO,
F9(3 1)/DWCD/Misc./09/4774-813 dated 25.08.2011 and services of another
Welfare Officer is still to be extended.
Keeping in view of the above facts, if agreed, we may extend the services of Ms.
Priyanka, Welfare Officer (On Contract basis) by adding her name in the earlier letter
dated 25.05.2011.
Submitted please."
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10.1 Para No. 4 of this note is quite important in which it has been stated that
Ms Priyanka, whose name was sponsored by ICSIL, i.e., Ms Priyanka, daughter
of Shri Anil Kumar had resigned on 03.08.2010 and then Ms Priyanka, daughter
of Shri Sant Lal was appointed, after having been got interviewed in ICSIL by
the then Senior Superintendent (Admin) and Smt. Renu. This note is factually not
correct as Ms Priyanka, daughter of Shri Anil Kumar, whose name was sponsored
by ICSIL had not resigned and she is still working as contractual employee.
Rather, it was Priyanka Yadav, who was in service since 2008, who had resigned
on 03.08.2010 after being selected in regular employment as Welfare Officer
through DSSSB.
10.2 Another mischief played in this note sheet is in the last paragraph, is that
it was proposed to extend the services of the present respondent by adding her
name in the earlier letter dated 25.05.2011, which was issued in respect of the
candidates duly sponsored by ICSIL and who had completed one year's term.
Somehow, this note was approved and from that date onwards, the terms of both
the Priyankas were extended on year-to-year basis by the common orders, till it
came to the notice of the relevant authorities in the year 2017 that the present
respondent was not duly selected at the initial stage and vide letter dated
23.10.2017, her illegal service contract was discontinued.
11. Another interesting thing to be noted here is the appeal/representation
submitted by the present respondent, which is dated 13.12.2017. The first 5
numbered paragraphs of the said representation are reproduced here under:
"1. I came to know about this job in 2010. It was conducted as a walk in interview
by Department through ICSIL.
2. I was not provided any interview attendance slip by the selection committee/ICSIL,
I asked about the selection process after the interview. The committee advised me to
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accept a call from the department (Social Welfare Department Govt. of Delhi) if
successful in the interview.
3. As it was a walk in interview, I was never issued an interview letter. The interview
was conducted on 04.5.2010 at ICSIL.
4. The appointment letter/ engagement letter was issued by the department on
12.8.2010.
5. I joined my duty on 12thAug, 2010 and my service contact has been renewed each
year."
11.1 The claim of the respondent is that she was interviewed on 04.05.2010 at
ICSIL and she was selected through a walk-in interview by Department through
ICSIL. In Para No.2, she submits that she was not provided with any interview
attendance slip by ICSIL and when she asked about the selection process, she
was advised that she may expect a call from the petitioner Department, if she
would be successful in the interview.
11.2 Thereafter, in Para No. 4, she directly jumps to an appointment letter being
issued on 12.08.2010. The implied meaning of the above 5 paragraphs is that the
present respondent had attended for a walk-in interview at the office of ICSIL on
04.05.2010 and she was declared successful and her name was sponsored by
ICSIL to the petitioner department and when she was telephonically called, she
visited the department and she was issued the appointment letter.
12. The documents on record show that on 25.05.2010, ICSIL had forwarded
a list of 17 candidates for being appointed as Welfare Officers with the petitioner
Department. The said list did contain name of Priyanka, but father's name of the
said Priyanka is Shri Anil Kumar. There is no other Priyanka in the said list. It
means that even if it is presumed that the present respondent was interviewed at
ICSIL but her name was never sponsored for being appointed as Welfare Officer
with the petitioner department.
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13. The note sheet bearing No. 3/N generated on 11.08.2010 refers to the
present respondent being the best candidate and she was not able to join as she
could not be contacted earlier. The mischief played by the officials of the
petitioner department is clear from this note sheet itself, which implied that the
name of the present respondent was duly forwarded by ICSIL and when the
officials from the Department tried to contact her telephonically, she could not
be contacted at that time. So, in place of the Welfare Officer who had resigned,
permission was sought to call the present respondent. She was accordingly called
for interview on 11.08.2010 itself at 12 noon and was immediately offered
employment on 12.08.2010.
14. Again referring back to the selection list of 25.05.2010, the name of the
present respondent did not figure in the list forwarded by ICSIL on 25.05.2010.
15. The sum and substance of the above discussion is that initial employment
of the present respondent is through back-door and it is not on the basis of any
recommendation being made by ICSIL, after duly conducting interview of the
candidates, who had the requisite qualifications.
16. Learned counsel for the respondent has relied upon the following
judgments in support of his contentions:
(i) 'Buddhi Nath Chaudhary & Ors. Vs Abahi Kumar & Ors., AIR 2001 SC
1176'. Appointments made long back pursuant to a selection need not be
disturbed.
(ii) 'State of Gujarat & Ors. Vs Arvind Kumar T. Tiwari & Ors., AIR 2012 SC
3281'. A person who does not possess the requisite qualification cannot even
apply for recruitment for the reason that his appointment would be contrary to
the statutory rules is, and would therefore, be void in law. Lacking eligibility for
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the post cannot be cured at any stage and appointing such a person would amount
to serious illegibility and not mere irregularity.
(iii) 'Siraj Ahmed Vs State of U.P. & Ors., 2019 (17) SCALE 626'. Where the
appointment are not made or continued against sanctioned posts or where the
persons appointed do not possess the prescribed minimum qualifications, the
appointment will be considered to be illegal. However, when the person
employed possessed the prescribed qualifications and is working against the
sanctioned posts, but had been selected without undergoing the process of open
competitive selection, such appointments are considered to be irregular.
(iv) 'State of Orissa and Ors. Vs. Bhikari Charan Khuntia and Ors., AIR 2003
SC 4588'. Mere sending of name by the employment exchange could not have
and in fact has not conferred any right.
(v) 'UOI & Ors. Vs Pritilata Nanda, AIR 2010 SC 2821'. Even though the
employer is required to notify the vacancies to the employment exchanges, it is
not obliged to recruit only those who are sponsored by the employment
exchanges.
(vi) 'Excise Superintendent Malkapatnam Krishna District, A.P. Vs. K.B.N.
Visweshwara Rao and Ors., (1996) 6 SCC 216'. It is common knowledge that
many candidates are unable to have their names sponsored, though their names
are either registered or are waiting to be registered in the employment exchange,
with the result that the choice of selection is restricted to only such of the
candidates whose names come to be sponsored by the employment exchange.
Under these circumstances, many a deserving candidate are deprived of the right
to be considered for appointment to a post under the State. Better view appears
to be that it should be mandatory for the requisitioning authority/establishment
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to intimate the employment exchange, and employment exchange should sponsor
the names of the candidates to the requisitioning Departments for selection
strictly according to seniority and reservation, as per requisition. In addition, the
appropriate Department or undertaking or establishment, should call for the
names by publication in the newspapers having wider circulation and also display
on their office notice boards or announce on radio, television and employment
news-bulletins; and then consider the cases of all the candidates who have
applied. If this procedure is adopted, fair play would be subserved. The equality
of opportunity in the matter of employment would be available to all eligible
candidates.
17. In my view, none of the above judgments help the present respondent as
her employment with the petitioner department is the result of a fraud committed
upon the Department by few complicit officials, who had intentionally created
false and fabricated documents being Note sheet Nos. 3/N and 6/N and who tried
to help the present respondent through unlawful means for gaining employment
in the petitioner Department and none of these judgements deal with such a
situation, where officials of the employer itself had gone out of the way to appoint
a candidate, whose name was never sponsored by the recruitment agency, which
had conducted interview of all the eligible candidates, and thereafter, selected the
best candidates from amongst them.
18. The case of the respondent was given a colour as if she was duly selected
and her name was part of the selection list dated 25.05.2010, which was
forwarded by ICSIL, but she was not able to join because she could not be
contacted at the right time and hence, when the next vacancy arose, she was called
from the panel and she was appointed. These are not the true facts because name
of the present respondent never appeared in the list of short-listed candidates,
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which was forwarded by the ICSIL to the petitioner/Department and the claim of
the present respondent that her name was part of the said list is not substantiated.
Although the said list contained the name of Priyanka, but her father's name is
different from the present respondent and the said Priyanka is still working in the
department. Moreover, no panel was notified to fill future vacancies.
19. On the other hand, learned counsel for the petitioners has relied upon the
judgement in the matter of 'Renu & Ors. Vs. District and Sessions Judge, Tis
Hazari, (2014) 15 SCC 731', wherein Hon'ble the Supreme Court has held that
petitioners' appointment being ex facie illegal, the issuance of appointment letter
conferred no right on them. An aggrieved party must have an enforceable right
under a statute or rule for a mandamus to be issued.
19.1 Learned counsel for the petitioners has further relied upon a judgement of
this Court in the matter of 'Shiv Kumar Vyas Vs. IGNOU & Others' reported as
2000 (53) DRJ 781, where it was held that to permit to continuation in
employment of an ineligible candidate in the employment amounts to giving
premium to dishonesty and manipulation. It is the settled position of law that
persons who have been selected without having requisite qualification or
experience or through irregular process, cannot be allowed to continue merely
because some time has been taken in litigation or on the ground of misplaced
sympathy. Both these judgments squarely apply to the facts of the present case.
20. The respondent has been able to continue in employment for a long time,
although her selection was illegal and mere continuation in service for a long
time, where the basis of her selection is illegal, does not confer any right on her
to continue in service although she may be having the requisite qualifications.
This case calls for a detailed departmental enquiry as to the circumstances under
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which this fraud was played upon the Department, especially how the note sheets
bearing No. 3/N and 6/N were generated, which resulted in issuance of office
order dated 12.08.2010, based upon wrong facts, and thereafter, extension was
recommended on 01.09.2011 and it was carried on thereafter, on a year-to-year
basis. It is for the petitioner/Department to take a call on this aspect as to whether
any departmental enquiry is to be conducted or not.
21. In view of the above facts and circumstances, the writ petition is allowed
and the impugned order dated 17.02.2021 passed by the Central Administrative
Tribunal, Principal Bench, New Delhi in O.A. No. 4228/2018 is hereby quashed.
Pending applications are also closed.
TALWANT SINGH
(JUDGE)
RAJIV SHAKDHER
(JUDGE)
SEPTEMBER 22, 2022/pa
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