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Mukhtiar Singh v/s Post Graduate Institute of Medical Education and Research, Chandigarh through its Director & Another


Company & Directors' Information:- M G INSTITUTE OF EDUCATION PRIVATE LIMITED [Active] CIN = U80301DL2002PTC118047

Company & Directors' Information:- E-GRADUATE INSTITUTE INDIA PRIVATE LIMITED [Strike Off] CIN = U80302TN2003PTC051577

Company & Directors' Information:- SINGH EDUCATION PRIVATE LIMITED [Strike Off] CIN = U74999BR2011PTC016448

Company & Directors' Information:- M. S. INSTITUTE OF EDUCATION PVT. LTD. [Active] CIN = U80301DL2006PTC152100

Company & Directors' Information:- INSTITUTE OF EDUCATION AND RESEARCH [Active] CIN = U80904UP2012NPL048973

Company & Directors' Information:- P R EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129195

Company & Directors' Information:- V C EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129201

Company & Directors' Information:- R V EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129311

    Original Application No. 1582/CH of 2013

    Decided On, 13 November 2014

    At, Central Administrative Tribunal Chandigarh Bench

    By, THE HONOURABLE MRS. RAJWANT SANDHU
    By, MEMBER (A) & THE HONOURABLE DR. BRAHM A. AGRAWAL
    By, MEMBER (J)

    For the Applicants: N.P. Mittal, Advocate. For the Respondents: Vikrant Sharma, Advocate.



Judgment Text

Rajwant Sandhu, Member (A).

1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:

'8(i) That the respondents be directed to produce the complete original records and noting of the case of the applicant where the case was dealt before the passing of impugned order (A-1) for kind perusal of this Tribunal in the interest of justice.

(ii) That the impugned order dated 29.11.2013 be quashed/set aside/invalidated qua the applicant in the interest of justice.

(iii) That respondents be directed to continue the applicant and allow him to perform the duties on the post of Store Keeper in PGIMER without any interruption.

(iv) That exemplary costs on the respondents be awarded as was granted by the Hon’ble Supreme Court in judgment (A-11) as the applicant has unnecessarily been harassed with the issuance of impugned order (A-1) which is patently not sustainable in law and put the applicant to present litigation without any fault on his part'.

2. Since interim order was also sought for staying operation of the impugned order dated 29.11.2013 (A-1) during the pendency of the OA, learned counsel for the applicant was heard on the issue of interim relief on 16.12.2013 and the same was declined as per order dated 20.12.2013 as per following:-

'3. Sh. N.P. Mittal, learned counsel for the applicant was heard on the issue of interim relief as sought in the OA. Learned counsel referred to the impugned order dated 29.11.2013 through which the services of the applicant who was working as Storekeeper, PGIMER, were terminated. He stated that although the office order dated 29.11.2013 was couched in a language which was not stigmatic, it amounted to punishment before imposing which it was necessary to conduct proper inquiry into the matter. As such, the applicant should be reinstated in service pending the conduct of the inquiry. To buttress his arguments in this regard, learned counsel cited V.P. Ahuja Vs. State of Punjab, 2000 AIR (SC) 1080 and Union of India Vs. Mahaveer C. Singhvi, 2010 AIR (SC) 3493. He also referred to Civil Appeal No. 9346 of 2013 titled Registrar General High Court of Gujarat and Anr. Vs. Jayshree Chamanlal Buddhbhatti decided on 22.10.2013 wherein the case involved the termination of the services of Ms. Jayshree after an inquiry in which she was not informed of the charges against her nor was she given an opportunity of being heard in respect of those charges which was the minimum requirement under Article 311(2) of the Constitution of India and the Apex Court had ordered the reinstatement in service of the applicant.

4. Learned counsel for the applicant also referred to Civil Appeal No. 452 titled Amar Kumar Vs. State of Bihar & Ors. decided on 15.1.2013 wherein it was held as under:-

'It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.'

Learned counsel asserted that termination of the services of the applicant without proper inquiry in which he would be allowed to defend herself, was violative of the constitutional provisions and since the respondents are bound to conduct such inquiry, the impugned order dated 29.11.2013 qua the applicant should be stayed and applicant should be allowed to continue in service in the meantime.

5. Short reply has been on behalf of the respondents in which it has been stated that the respondents issued advertisement dated 6.2.2013 (Annexure A-2) to fill up 8 posts of Storekeeper. As per the advertisement, the qualifications prescribed as per recruitment rules (Annexure A-2) are given as under:-

'Essential:

1. Bachelor degree in Economics/Commerce/Statistics

2. Postgraduate degree/diploma in material management from a recognized University/Institute or equivalent.

Desirable:

Experience in handling stores and record keeping in a store preferably medical or concern of repute in public or private sector.

OR

1. Degree of a recognized University or equivalent.

2. Postgraduate degree/diploma in material management of a recognized university/Institution.

3. Three years experience in handling store, stores preferably medical stores in Govt. Public/Private Sector.

The applicant claiming himself to be eligible for the said post as per the aforesaid qualifications applied for the said post by filling up the application form which is appended as Annexure A-4. This application was checked by the constituted Screening Committee and after clearing the written test, the applicant was provisionally allowed to appear in the interview on 9.9.2003 vide letter dated 26.8.2013 (Annexure A-6). He was selected and issued appointment letter on 21.8.2013 (Annexure A-8) as per terms and conditions as set in the said letter.

6. After the issuance of the appointment letter, it was found that a bonafide error occurred at the time of scrutiny of the application of the applicant. It was found that the applicant did not have qualification and experience as per the advertisement dated 6.2.2013 (Annexure A-2) and did not meet the requirement of Recruitment Rules. The applicant did not possess the required educational qualification and required experience of three years as per the advertisement. The applicant was possessing degree i.e. Bachelor of Pharmacy alongwith MBA (Pharmaceutical management) and also had experience of 2 years 5 months and 8 days, which was deficient by 6 months, 22 days as the requirement as per advertisement was of three years experience in handling stores, preferably medical stores in Government Public/Private Sector. The applicant was also deficient in educational qualifications as he did not possess PG degree/diploma in material management of a recognized university/institution. Instead he was having MBA in pharmaceutical management which did not meet the requirement of Recruitment Rules for the post of Storekeeper. As such, it was decided that his services be terminated by invoking the terms and conditions of his appointment letter vide letter dated 29.11.2013 and in the said letter, it was clearly mentioned that the applicant is given one month’s pay in lieu of notice period of one month. The order of termination is neither stigmatic nor punitive in nature as such there is no requirement of holding any inquiry. The termination is as per terms and conditions of appointment letter (Annexure A-8). The present case is a case of termination simplicitor and not a punishment. The judgments relied upon by the applicant in the OA are not applicable in the facts and circumstances of the present case.

7. To buttress his arguments, learned counsel for the respondents referred to decision dated 12.1.2010 in Civil Appeal No. 2786 of 2007 titled Chaitanya Prakash & Anr. Vs. H. Omkarappa wherein it had been held as under:-

'Termination-Probationer-BOD while deciding the suitability of the respondent not only considered the Performance Assessment Report but also considered all other records - Conscious decision thereafter taken that respondent was not suitable for confirmation and to terminate his service - The reason mentioned in the letter terminating the services of the respondent cannot be said to be stigmatic - The appellant had time and again specifically brought to the notice of the respondent his short comings and no misconduct as such is alleged against the respondent by the appellant - The case held to be a case of termination simplicitor due to unsuitability of the respondent and not a case of punishment for misconduct - The impugned order held not stigmatic and the decision of the High Court is erroneous and vitiated.'

Learned counsel for the respondents stated that since the respondents had committed a bonafide error in allowing the applicant to participate in the selection process although he did not fulfill the eligibility criteria for the post of Storekeeper and this error had been discovered after the applicant had joined, there was no irregularity in the termination of the services of the applicant after giving him one month’s pay in lieu of notice. Since the services of the applicant had been terminated invoking the clause regarding probationary period that was included in the appointment letter, there was no necessity of holding an inquiry into the matter as the applicant was clearly ineligible as he did not meet the educational qualifications and work experience criteria prescribed for the post. Learned counsel also stated that in view of this position, there was no necessity to reinstate the applicant in service and he vehemently opposed the grant of interim relief as sought by the applicant.

8. We have considered the matter carefully and are of the view that from the content of the short reply filed on behalf of the respondents, it is clear that the services of the applicant were terminated keeping in view the factual position regarding his educational qualifications and experience and the termination order is the subject of the OA. The termination order on first reading does not appear to be stigmatic and the issue as to whether departmental inquiry was necessarily to be held before terminating the services of the applicant, has to be adjudicated in the OA when the case law cited by the parties will be discussed in detail.

9. Pending adjudication of the case and since office order terminating the services of the applicant was issued on 29.11.2013 with immediate effect while giving the applicant one month’s basic pay in lieu of the notice period of one month, interim relief as sought by the applicant does not appear necessary at this stage.'

3. In the rejoinder filed on behalf of the applicant it has been stated that the applicant had obtained additional information through RTI Act, 2005 and he had found that ineligible persons had been called for the interview for the post of Store Keeper and had even been selected as such as per details stated in the rejoinder. It is further stated that the documents placed on record by the applicant showed that one Sh. Prabhjot Singh was not selected by the Expert Committee. The documents attached as Annexure A-12 with the rejoinder proved that the entire selection process for recruitment to the post of Store Keeper was a fraud and an unfair selection and hence on these scores the impugned order (A-1) qua the applicant be quashed otherwise the selection be quashed by this Tribunal. In the additional affidavit filed on behalf of the applicant on 21.5.2014 it has been stated that it is an admitted fact that Recruitment Cell had considered qualification of applicant and had found him ineligible, however, after the opinion of the expert, Prof. A.K. Gupta, Medical Superintendent-cum-Professor & Head (Hospital Administration), he was found duly eligible which is apparent from perusal of application form of the applicant. Documents to substantiate the same have already been annexed with the OA. Wherever there was any doubt, Scrutiny Committee had allowed particular candidate to appear provisionally for interview by declaring him provisionally eligible, whereas in respect of the applicant it was categorically and empathetically mentioned that he was duly eligible. As such, selection and appointment of answering respondent was valid. There was no mis-representation by the applicant in respect of his qualification. In similar circumstances, Hon’ble High Court in Sarabjit Kaur Dhaliwal Vs. Punjab Agriculture University, 2003 (4) SCT 132 had held that once there was no mis-representation or flaw by a candidate who is seeking appointment in respect of his certificates, qualifications etc. and committee appoints candidate, his services could not be dispensed with for want of qualification (Annexure A-15). As per qualification indicated for the post of store keeper in column 6 of the advertisement it was clear that PGI had considered degree from a recognized University or its equivalent to be valid. Further, Post-graduate Degree/Diploma in Material Management or its equivalent had also to be considered to be valid. The difference has been incorporated in experience by creating two different classes without any valid reasons. There seems to be non-application of mind by PGI while incorporating conditions regarding qualification alongwith experience. The same has no rationality or objective to be achieved and the same cannot withstand judicial scrutiny as it vitiates Article 14 and 16 of the Constitution of India. Reliance in this regard is placed on CWP No.16674 of 2006, Bahadur Singh and others Vs. State of Haryana and others, decided on 23.03.2008 wherein Hon’ble High Court held that there cannot be two different set of qualifications as this would be hit by vice of arbitrariness (Annexure A-16). The applicant has requisite qualification for post in question of Store Keeper. Reliance is also placed on Rajesh Kumar Vs. State of Haryana & others, 1995 (2) CLJ 387 DB wherein it was held that qualification which has equal value, then the candidate cannot be denied his right for consideration since the same would also tantamount to denial of equal opportunity to persons possessing equivalent qualification which can never be intention of the employer. Action of respondent Institute is contrary to law laid down in CWP No.10307 of 1993, Dhan Raj Singh vs. State of Haryana & others, decided on 25.11.1993, which is annexed as Annexure A-17, since it was held that qualifications which are equivalent, same cannot be refused for purposes of appointment, promotion etc. even if the rules do not prescribe eligibility as per equivalence and as such action of the Institute is factually and legally untenable. The applicant was working on probation after being selected and appointed on a regular post. However, his service was terminated without complying with the provisions of the Industrial Disputes Act and as such order dated 29.11.2013 (A-1) cannot withstand judicial scrutiny. Reliance in this regard is placed on Management of Karnataka State Road Transport Corporation, Banglore Vs. M. Boraiah, 1983, AIR SC 1320.

4. In the sur-rejoinder filed on behalf of the respondents it has been stated that the answering respondent places reliance on a recent judgment of this Court reported as 2014 (3) SCT 268 (Annexure R-1). It is further submitted that it is again well settled that an ineligible candidate has got no right to the post. Reliance is placed on the judgment appended as Annexure R-2.

5. Arguments advanced by learned counsel for the parties were heard. Learned counsel for the applicant asserted that since the applicant possessed a Bachelors Degree in Pharmacy and also had degree of MBA in which the subject of Material Management was included, the applicant has to be treated as qualified for the post of store keeper as per the advertisement issued in this regard by the respondent Institute. He stated that the applicant had been declared successful in the written test, he had necessary experience of working as store keeper in privately managed bodies and hence the order terminating the services of the applicant is patently illegal. Learned counsel also relied on the following judgments:-

i. V.P. Ahuja v. State of Punjab, reported as 2000 (2) SCT 327, wherein Apex Court has held as follows:

'Constitution of India, Article 14 and 16 - Natural Justice-Probation-Termination during probation-Stigmatic termination during probation without inquiry and without affording any opportunity, is illegal-Probation like temporary employee is also entitled to certain protections from arbitrary termination of his services-Chief Executive terminated alleging 'he failed in the performance of his duties administratively and technically' - Such a stigmatic order of termination cannot be resorted to under the garb of conditions of probation for removal on the ground of unsatisfactory performance during probation before expiry of probation period.

ii. In Union of India and Ors. Vs. Mahaveer C. Singhvi, reported as 2010 (4) LLJ 821, wherein it has been as follows:

'A. Constitution of India, 1950, Article 311-Stigmatic Order-Discharge on ground of misconduct-If a discharge is based upon misconduct or if there is a live connection between the allegations of misconduct and discharge, then the same, even if couched in language which is not stigmatic, would amount to a punishment for which a departmental enquiry was imperative.'

Learned counsel stated that services of the applicant had been terminated without opportunity to clarify his position. There was no allegation of misconduct on the part of the applicant. Moreover, in the meantime, the applicant had obtained Diploma in Material Management and hence was now fully qualified for the post of Store Keeper. He stated that the applicant had been issued appointment letter on 21.9.2013 and his services had been terminated two months later on 29.11.2013 and hence he had been left high and dry as he could not seek employment elsewhere. He also stated that in the communication issued to the applicant regarding being called for interview, and in appointment letter, there was no mention of the word 'Provisional' and hence his appointment is to be treated as regular one and his services could not be terminated without first holding inquiry proceedings to establish that the applicant was indeed not qualified to be appointed as Store Keeper. The stigmatic order has been issued against the applicant by PGIMER without carrying out due process of inquiry, hence impugned order should be quashed.

6. Learned counsel for the respondents stated that it was very clear from the OA itself that the applicant did not have necessary qualification of Degree/Diploma in Material Management and hence his appointment as Store Keeper in PGIMER was irregular. He stated that the respondents had committed bonafide mistake and after realizing the same, services of the applicant has been terminated through non-stigmatic order and one month’s salary has been paid to him in lieu of the notice period. Learned counsel stated that the judgments cited by learned counsel for the applicant were not material to the case of the applicant as he

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did not fulfill the eligibility criteria for being appointed as Store Keeper. His appointment was ab-initio defective and there was no option but to terminate the same. 7. We have heard learned counsel for the parties at length and perused material on record. Although much case law has been cited by learned counsel for the applicant that the services of the applicant could not have been terminated without affording him an opportunity to defend himself in the course of inquiry proceedings but the material on record shows that the applicant did not possess essential qualification of Degree/Diploma in Material Management. Hence it is clear that since the applicant did not fulfill the essential eligibility criteria for appointment as Store Keeper, even if an inquiry had been conducted in the matter, the conclusion could not have been any different. Hence there is no illegality in the termination order dated 29.11.2013 that has been impugned through this OA. The applicant being an ineligible candidate could not be allowed to continue in service as Store Keeper with PGIMER. His services had been terminated as per condition under the heading 'Probationary Period' that reads as follows: 'Your appointment will be temporary & you will be on two years of probation. Your appointment during the probationary period may be terminated at any time with one month’s notice either side viz., the appointing authority, or the appointee, without assigning any reason whatsoever. It will be open to the Institute to pay, in lieu of notice, for the period by which the notice falls short of one month. Similarly, if you wish to resign, you may do so by depositing with the Institute your salary & allowance in lieu of the notice in respect of the period by which it falls short of one month.' Admittedly, the applicant has been allowed salary in lieu of the notice period and the termination order is in accordance with the conditions of appointment letter. Hence we are of the view that there is no ground for judicial interference in this matter. The OA is rejected.
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