Shivam Chaturvedi vs Central University Of Gujarat
2021 Latest Caselaw 1093 Guj

         C/SCA/4705/2012                                         JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4705 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI              Sd/-
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1   Whether Reporters of Local Papers may be allowed to    No
    see the judgment ?

2     To be referred to the Reporter or not ?                              No

3     Whether their Lordships wish to see the fair copy of the             No
      judgment ?

4     Whether this case involves a substantial question of law             No
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                          SHIVAM CHATURVEDI
                                 Versus
                     CENTRAL UNIVERSITY OF GUJARAT
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Appearance:
MR TR MISHRA(483) for the Petitioner(s) No. 1
MR MITUL K SHELAT(2419) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                               Date : 25/01/2021

                               ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-

(A) Your Lordships may be pleased to issue a writ in nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent to immediately permit the petitioner to resume his duties as Hindi Officer pursuant to his selection as per appointment order.

(B) Your Lordships may be pleased to declare and hold the impugned action of not permitting the petitioner to resume duties as illegal, unjust, improper and violative of Articles 14 and 16 of the Constitution of India.

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(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to issue an order restraining the respondent, their agents and servants from filling up the post of Hindi Officer pursuant to advertisement placed at Annexure-A.

(D) ..............."

2. The case of the petitioner is that he made an application for the post of Hindi officer pursuant to the advertisement which was issued in 'Hindustan Job' dated 3rd/ 9th July 2011. The petitioner fulfills all requisite qualifications for the post in question, as such applied and after process of interview, it has been communicated to the petitioner on 25.2.2012 that he came to be selected for the post in question. For the purpose of resumption of duty, he approached the respondent authority on 9.3.2012, however was not allowed to resume the duty and instead was handed over a letter dated 12.3.2012. Immediately on next day, a clarification came to be issued by the petitioner pointing out as to why such discrepancy, as pointed out by the authority, occurred but nonetheless, he was not allowed to resume the duty. After coming back to hometown at Varanasi, he re-arranged all the papers and testimonials and again handed over in person on 22.3.2012 but, the respondent authority has not acceded to the request of the petitioner and the action has been taken disallowing the petitioner to resume the duty pursuant to the selection.

3. The petition appears to have been admitted with an interim protection that one post of Hindi officer be kept vacant and from time to time, the petition got adjourned, which has now come up for final hearing before this Court.

4. Upon request of learned advocates for the parties, the matter is taken up for hearing, wherein learned advocate Mr. T.R. Mishra, representing the petitioner has submitted that the action on the

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part of the respondent authority in not allowing the petitioner to resume the duty is absolutely unjust, arbitrary and tilted with malafides. It has been submitted that this action on the part of the respondent authority tantamounts to canceling the appointment of the petitioner which has been offered to the petitioner, and as such, same ought to have been done after due compliance of the principles of natural justice. On the contrary, Mr. Mishra has submitted that the petitioner was not lacking any eligibility criteria and the selection has been undertaken of the petitioner after due verification of all the relevant papers, including the original, and therefore, the subsequent action in the form of communication dated 12.3.2012 reflecting on page 17 is an afterthought and for the reasons best known to the respondent authority and as such, since this action is absolutely unjust and arbitrary, left with no alternate, the petitioner is constrained to approach this Court.

5. Learned advocate Mr. Mishra has taken the Court to various documents to justify that whatever experience which is needed for the post is already secured by the petitioner and on the basis of mere typographical error, if any mistake has occurred, same ought to have been unnoticed by the University, especially when proper selection has taken place of the petitioner. To strengthen the submission, Mr. Mishra has relied upon one decision delivered by the Apex Court in the case of State of Madhya Pradesh And Another Vs. Laxmishankar Mishra reported in (1979)2 SCC 270 and after pointing out the relevant extracts from para 9, 11 and 12, has submitted that such grammatical mistake or typographical mistake, even if has taken place, same may not be taken to such an extent that the petitioner is deprived of substantive appointment. Mr. Mishra has submitted that on account of this, at present present, the petitioner is working in Arunachal Pradesh Study Center and had he been appointed in this University, the pay scale would have been

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of good nature. It is only on account of this illegal action on the part of the respondent authority, the petitioner is deprived of such benefit. Hence, this arbitrary act on the part of the authority deserves to be deprecated and has requested to allow the petition by granting the reliefs as prayed for.

6. As against the above, learned advocate Mr. Mitul K. Shelat appearing on behalf of the contesting respondent University has vehemently contended that the action of the authority is perfectly justified in the eye of law, especially when it has been noticed that whatever experience and the eligibility criteria shown in his own writing by the petitioner, on proper scrutiny of the same, it was found to be completely incorrect and on the contrary, the petitioner has misled the authority and went through the selection process. It has been vehemently contended that the petitioner was not a regular lecturer nor even on a basis of contractual lecturer and what has been realized later on is that he was merely a visiting lecturer as stopgap manner and therefore, when different projection has been given by the petitioner, it has been revealed that the petitioner is not permitted to be employed in the University. By referring to various documents attached to the petition compilation, it has been canvased before the Court that at the time of interview, the petitioner had never produced original documents. Had he produced the same, probably, this offer of appointment would not have been offered by the authority and therefore, when this serious mistake has been noticed, same has not been allowed to be perpetuated from the initial stage itself. As such, there is no unjust and illegal action on the part of the respondent authority at any time. According to Mr. Shelat, this appointment letter does indicate a clause that same is subject to verification of the original documents and by referring to page 15, and some of the clauses of the said letter, a submission is reiterated that this offer of

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appointment was subject to the verification and that having been found misleading by the petitioner, the authority was left with no alternate but to take action and therefore, there is no illegality of any nature. Here, according to Mr. Shelat, there is no malafide intent alleged nor any malice is alleged against the respondent authority nor any pick and choose policy is agitated and as such, in absence of any of the circumstances, when the University has found that the petitioner is not eligible to be employed, the action is taken against the petitioner and he was not allowed to resume the duty. To strengthen his submissions, Mr. Shelat has referred to the decisions delivered by the Apex Court in the case of District Collector & Chairman, Vizianagaram School Welfare Residential School Society, Vizianagaram And Another Vs. M. Tripura, Sundari Devi reported in (1990)3 SCC 655 and in the case of Shakur Basti Shamshan Bhumi Sudhar Samiti Vs. Lt. Governor, National Capital Territory of Delhi and others reported in (2007)13 SCC 53 and by referring to this, a contention is reiterated that the action is completely within the four corners of law and it is always permissible for the authority not to perpetuate illegality once having been noticed and here in the instant case, from the initial stage itself, before allowing the petitioner to resume, this mistake has been found which is rectified and therefore, action cannot be said to be arbitrary in any form.

7. Having heard learned advocates for the parties and having gone through material on record, it appears that there is no malafide alleged against the respondent University by the petitioner and whatever found against the petitioner is that from the original document and on that count, he was found not an eligible person to be employed. The offer letter of appointment reflecting on page 15 is also empowering the University that if during the course of appointment, if it is found that there is any wrong declaration, in

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that case, the service can be put to an end without even notice. Whereas, in the instant case, even before that stage, i.e. before resumption of duty, it was detected by the respondent authority that petitioner is not fulfilling the eligibility criteria and upon due verification of the original record, action is initiated and as such, it appears that there is no mistake committed by the University. Apart from that, after issuance of the offer letter of appointment, a demand was made for original documents and adequate opportunity was given to the petitioner to justify and it is only after such opportunity having been given, the University has not allowed the petitioner to resume the duty and therefore, in this case, it is not possible to come to a definite conclusion that there is any violation of the principles of natural justice because after visiting the University in person in response to the offer letter of appointment, according to the petitioner, he himself went back to his native at Varanasi and arranged all papers and testimonials and thereafter, handed over and therefore, the action of the respondent authority cannot be said to be violative of principle of natural justice.

8. In addition to this, the affidavit-in-reply filed by the Central University of Gujarat at page 48, a specific stand is taken that the original certificates were not produced at all at the time of interview and evaluation which was undertaken on his application, and when that be so, production of documents, as stated by the petitioner, is seriously disputed and agitated by the University. Additionally, it also appears that at one point of time, the petitioner in his reply affidavit has taken a stand that there is a mistake and a clear typographical error without intention has taken place, as reflecting in para 3 on page 19, i.e. the communication of the petitioner dated 22.3.2012. But, then a perusal of his original application dated 5.4.2011, which has been filled in by the petitioner in his own handwriting, wherein he categorically mentioned in column No.14

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that he worked as Lecturer in previous organization on a contract basis and therefore, there is no question of any typographical error since he himself wrote in his own handwriting and as such, the defense which has been tried to be raised is not sounding any confidence. Apart from that, such contractual words have not been found to be correct by the authority when the original documents were presented before it pursuant to the request. Hence, the plea taken by the petitioner is not possible to be accepted. For that purpose, a reference is made by the Court to page 92 to 94 of the petition compilation. On the contrary, it is found other way that the petitioner appears to have taken a concocted defense.

9. In addition to this, on the issue of experience, as stated by the petitioner, it is a seriously disputed version and such disputed question of fact is not possible to be examined by this Court. Whether the status of the petitioner as a visiting lecturer or a contractual lecturer would be eligible to be considered is beyond the purview of this Court to compare since the University itself has to decide the same as the eligibility criteria is fixed by the said authority. It is not for this Court to compare and analyze the status of such experience just to make the petitioner eligible for employment and as such, on such a disputed version, this Court is not inclined to exercise the extraordinary jurisdiction.

10. Additionally, it has been categorically asserted by the University in its reply that despite the fact that the petitioner was informed that he was supposed to produce the original certificates, such certificates were not produced at the time of interview and evaluation. The stand of the University with regard to eligibility of the petitioner deserves to be quoted hereunder:-

"4. I state that the Answering Respondent issued a public advertisement inviting applications from eligible

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candidates to be considered for appointment to the post of Hindi Officer. I state that in terms of the advertisement the qualifications were prescribed as under:-

Hindi Officer Minimum Educational Qualifications and Experience: (1) A post Graduate with minimum of 55% marks from a recognized University in hindi with English as one of the subjects at Graduation Level). 2(Minimum 5 years of experience in translation from English to Hindi and vice- versa which includes technical/ Scientific literature work/ Hindi research work/ journalism in central/ state Govt./PSU/Reputed Institutions. (3) Good Knowledge og computers applications.

Age: Note more than 40 years.

I state that the Answering Respondent has framed ordinance prescribing the qualifications for appointment to the post of Hindi Officer. I state that in terms of the ordinance the qualifications prescribed are as under:-

Hindi Officer Minimum Educational Qualifications and Experience: (1) A post Graduate with minimum of 55% marks from a recognized University in hindi with English as one of the subjects at Graduation Level). (2) Minimum 5 years of experience in translation from English to Hindi and vice- versa which includes technical/ Scientific literature work/ Hindi research work/ journalism in central/ state Govt./PSU/Reputed Institutions. (3) Good Knowledge og computers applications.

Age: Note more than 40 years.

A copy of the advertisement published by the Central University inviting applications for the post of Hindi Officer is annexed herewith and marked Annexure R-2.

A copy of the ordinance no.13 is annexed herewith and marked Annexure R-3.

5. I state that the Petitioner applied in pursuance to the above advertisement. I state that by letter dated 15.09.2011 of the respondent university; the respondent university requested the petitioner to appear for the interview. I state that in pursuance of the letter the petitioner was informed that he was required to produce original certificates. The original certificates were not produced at the time of the interview and the evaluation

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was undertaken on the basis of the facts stated in the application.

A copy of the format of the Application of the Petitioner is annexed herewith and marked Annexure R-4.

10. I state that in fact the petitioner has deliberately misrepresented the respondent university and has played fraud upon the respondent university by asserting that he had a total of 11 years of experience, which in fact he had only3 years of experience as (Pravakta) even for which he could not produce original certificate. I state that action of the respondent university is bonafide and in accordance with law as an appointment which is obtained by fraud and misrepresentation is not sustainable in the eyes of law. I state that every applicant was put to notice that in the event of any statement in the application being found to be false/ incorrect, the applicants candidature or appointment will stand cancelled."

11. In the aforesaid factual details and the rival stand of these proceedings, this Court is not inclined to exercise the extraordinary jurisdiction, particularly when the authority has examined in detail and found the petitioner not eligible.

12. Considering aforesaid situation, the judgment which has been tried to be pressed into service by learned advocate Mr. Mishra for the petitioner, on going through the same in detail, same appear to be of no assistance to the petitioner since the said decision is having altogether different factual background and in context of that factual background, the Hon'ble Court propounded the proposition. Whereas in the instant case, the later judgment which has been relied upon by learned counsel for the respondent authority is more appropriate in the present controversy. Para 6 of the said decision in the case of District Collector & Chairman, Vizianagaram School Welfare Residential School Society, Vizianagaram And Another Vs. M. Tripura, Sundari Devi (supra) is quoted hereunder:-

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6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact.

13. Additionally, yet in another decision which has been relied upon in the case of Shakur Basti Shamshan Bhumi Sudhar Samiti (supra), it has been propounded that it is well-known that a Writ Court in exercise of its discretion under Article 226 of the Constitution of India need not quash an order if it gives rise to another illegal order or may quash both such orders and reference can be made of para 43 of the said judgment. Hence, here in the case on hand, the respondent authority has clearly found that what has been projected before it by the petitioner is far from truth and ground reality from close scrutiny of the documents and the certificate which have been produced by the petitioner and as such, not eligible to be allowed to resume the duty and in such a situation, this Court is of the considered opinion that no case is made out by the petitioner to call for any interference. The University being a statutory authority is acting on the basis of the Ordinance and strict compliance of the qualificatory criteria mentioned for the post in question. Such action of the University cannot be said to be irregular or illegal in any form. Hence, no case is made out by the petitioner. Accordingly, the petition stands DISMISSED. Interim relief, if any, stands vacated forthwith. Rule is discharged with no order as to costs.

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR