S.N. Pathak, J.:— Heard the parties.
2. Petitioner has approached this Court with a prayer for quashing the office order bearing memo No. 2103 dated 28.11.2018 (Annexure-18), issued by respondent No. 4, whereby the previous decision with respect to cancellation of the appointment of the petitioner to the post of Switch Board Operator has been re-affirmed without giving any justified reason and without following the principle of natural justice.
3. Petitioner has further prayed for a direction upon the respondents for restoration of appointment of the petitioner to the post of Switch Board Operator.
4. Petitioner has also prayed for a direction upon the respondents to consider his case for appointment to the post of Switch Board Operator in view of the fact that he has been given provisional appointment after being successful in the entire selection process and even prior to his regular appointment, the petitioner has worked for about 9 years on contractual basis on the same post with all sincerity and without any complaint from any corner.
5. The facts of the case lies in a narrow compass. The petitioner has completed two years ITI course in Electronics Mechanic in the year 2000 from ITI, Dhanbad and on the basis of said certificate, he applied for appointment to the post of Lineman pursuant to JSEB's Employment Notice No. 01/06 and after being declared successful, he was given appointment by the erstwhile Jharkhand Electricity Board on contractual basis to the post of Switch Board Operator vide letter No. 3210 dated 14.06.2007 and since then, he was continuously working on the said post. It is the further case of the petitioner that during his services as Switch Board Operator, the respondent Nigam came out with Employment Notice No. 2/2015 for filling-up various vacancies including the post of Switch Board Operator through regular appointment. The petitioner having vast experience of working as Switch Board Operator on contractual basis and also being eligible in all respect, applied for regular appointment in terms of the said advertisement to the post of Junior Lineman as first preference. In the said advertisement, the total number of vacancies for the post of Junior Lineman was 200 out of which 100 posts were for unreserved category. The petitioner appeared in the selection process and was declared successful in all respect and hence, he was recommended for appointment to the post of Switch Board Operator, Grade-II and accordingly, the respondents issued offer of provisional appointment vide letter dated 30.01.2016.
6. It is the further case of the petitioner that while issuing provisional appointment letter, the respondent at the foot note mentioned that the selection of the petitioner is provisional in absence of certificate from Department of Labour and Employment to the effect that qualification of the petitioner is similar to that of ITI Electrician. In compliance of the directives given by the respondent vide letter dated 30.01.2016, the petitioner approached the office of Director, Employment and Training, Govt. of Jharkhand and after verifying the records of the petitioner, the Director issued certificate vide letter dated 01.03.2016 to the effect that in the syllabus of Electronics Mechanic Trade, the syllabus of Electrician Trade is also included and those who have taken training in Electronics Trade are competent enough to perform the job of Electrician. Thereafter, the petitioner was sent for on job training under Dumka area and his name finds place at Sl. No. 01 in the office order dated 03.03.2016. The petitioner successfully completed the training and thereafter remained posted at the same place, however, to his utter surprise, the respondent No. 5 without issuing any show-cause and without giving any opportunity of hearing, all of a sudden issued office order bearing memo No. 2425 dated 23.08.2016, whereby the said authority has cancelled/quashed the letter dated 30.01.2016, through which provisional appointment was offered to the petitioner to the post of Switch Board Operator, Grade-II.
7. Being aggrieved by the arbitrary action of the respondents, the petitioner moved before this Court in W.P. (S) No. 7183/2016 and this Court after hearing the parties, disposed of the said writ application vide order dated 09.05.2017 by quashing the letter dated 23.08.2016 and directed the Deputy General Manager to consider the claim of the petitioner for appointment. Thereafter, the petitioner made several representations before the respondent No. 2 but no action was taken and hence, he filed Cont. Case (C). No. 621 of 2017 for non-compliance of the order dated 09.05.2017. During the pendency of the said Contempt Case, the respondents moved in appeal vide LPA No. 454 of 2017 against the order dated 09.05.2017. However, finding no flaw in the order dated 09.05.2017, the Division Bench of this Court vide order dated 20.08.2018, disposed of the said LPA. Upon disposal of the said appeal, the respondents vide memo dated 10.09.2018, invited the petitioner to present his case and in terms of direction dated 10.09.2018, the petitioner appeared before the concerned authority with a detailed representation dated 18.09.2018. However, the concerned authority instead of directing the petitioner to present his case, stated that they have already rejected his candidature as Hon'ble High Court has not passed any favourable order for his appointment.
8. Thereafter, on 13.12.2018, the petitioner received a letter bearing office order no. 2013 dated 28.11.2018, whereby order of rejection has been re-affirmed on the same ground on which the candidature of the petitioner was rejected earlier. Aggrieved by the order dated 28.11.2018, whereby the concerned authority has affirmed the order of cancellation the petitioner has knocked the door of this Court.
9. Mr. Dhananjay Kumar Pathak, learned counsel appearing for the petitioner, strenuously urges that the action of the respondents is wholly arbitrary, illegal and without jurisdiction. The respondents cannot be allowed to cancel the appointment of the petitioner which was made after being found successful in the entire selection process. Learned counsel further argues that the appointment of the petitioner cannot be cancelled without giving any justified reason and without issuing any show-cause or following the cardinal principles of natural justice. Learned counsel further argues that petitioner has a right for consideration of his case for appointment after being declared successful in selection process and the action of the respondent in cancelling his appointment, is violative of Articles 14 and 16 of the Constitution of India. Learned counsel further argues that just to appoint their own persons, the respondents have cancelled the appointment of the petitioner though he possess higher qualification and work experience and has been declared successful in the written test as well as in interview and thereafter provisional appointment letter was issued to the petitioner and he successfully completed his on job training. Learned counsel further argues that many posts are still vacant and as such, a direction be given to the respondents to consider the case of the petitioner for appointment to the post of Switch Board Operator as he has obtained more marks than the last selected candidate.
10. On the other hand, Mr. Mrinal Kanti Roy, learned counsel appearing for the respondent-JUVNL submits that petitioner admittedly was appointed earlier to the post of Switch Board Operator on contractual basis and continued for the same for 8 long years but may be at that time, his certificates were not examined and verified. When he was selected for regular appointment, respondents duly examined his certificates and it was found that petitioner does not fulfill the requisite eligibility criteria as laid down in the Advt. No. 2/2015 and as such, rightly the order of cancellation of his appointment was passed, which was later on affirmed by the higher authority of the respondent-JUVNL. As such, there is no merit in the instant writ application and the same is fit to be dismissed outrightly.
11. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:
(I) The issue involved in the present writ application has already been adjudicated upon by this Court in W.P. (S) No. 7183 of 2016 and the respondents have not come out with a new reasoning which requires interference by this Court.
(II) The appointment of the petitioner has been cancelled without assigning any cogent reasons, in most mechanical manner, which is not acceptable to this Court and is fit to be quashed and set.
(III) It was neither pleaded in the counter affidavit filed by the respondents in earlier writ petition that respondent-JUVNL under a bonafide mistake offered appointment as Switch Board Operator nor it has been argued that qualification of ITI Electrician under Employment No. 02 of 2015 is substantially different from the qualification sought for the said post under Advt. No. 01 of 2006.
(IV) The contention of learned counsel for the respondents that at relevant point of time, the certificates were not examined and verified, is totally misconceived as earlier it was the specific stand of the respondents and observed by the Court in para-7 and 8 of W.P. (S) No. 7183 of 2016 that,
“7. …………. after having verified the petitioner's trade certificate and on being satisfied that he possesses the requisite qualification, appointed him on 14.06.2007. At the time of making application pursuant to Employment Notification No. 02 of 2015, he had experience of 8 years and 2 months under respondent-JBVNL. Now, the respondents have taken a stand that the petitioner does not fulfill the prescribed qualification. In my opinion, once a candidate attains post-job one year's experience qualification and, that too, under the same employer, he must be held eligible for the said post in the subsequent selection exercise unless, it is pleaded that the prescribed qualification in the subsequent Employment Notification is substantially different. Insistence of the respondent-JUVNL on producing a certification of equivalence of trade certificate from Department of Labour, Employment Training and Skill Development was wholly unwarranted.
8. The Certificate dated 01.03.2016 produced by the petitioner records that persons holding Trade Certificate in Electronics are competent to perform the work of Electrician. Job profile of SBO does not require some special knowledge as Electrician which a person holding Trade Certificate in Electronics cannot possess.”
12. The said observation and opinion of learned Single Judge was affirmed by the Division Bench of this Court in LPA No. 454 of 2017.
13. This Court is in agreement with the opinion and observation of learned Single Judge in W.P. (S) No. 7183 of 2016, which was affirmed by the Division Bench and as such, different opinion cannot be formed at this juncture. This Court fails to understand that when on the same certificates, the petitioner was appointed earlier though on contract basis and continued for 8 long years and further emboldened himself by acquiring training certificate, it was not open to the respondents to cancel the appointment on frivolous grounds.
14. There are judicial precedence dealing with issue involved in this writ application. The Hon'ble Apex Court in case of Anand Yadav v. State of Uttar Pradesh (Civil Appeal No. 2850 of 2020) vide its judgment W.P. (S) No. 7183 of 2016, in para-31 has observed as under:
“31. We may also notice another important aspect, i.e., the employer ultimately being the best judge of who should be appointed. The choice was of respondent No. 2. who sought the assistance of an expert committee in view of the representation of some of the appellants. The eminence of the expert committee is apparent from its composition. That committee, after examination, opined in favour of the stand taken by the appellants, and respondent No. 2 as employer decided to concur with the same and accepted the committee's opinion. It is really not for the appellants or the contesting respondent to contend how and in what manner a degree should be obtained, which would make them eligible for appointment by respondent No. 2.”
15. Further, from perusal of the order passed by the Division Bench of this Court, it appears that though there was a specific direction to give opportunity of hearing to the petitioner but without issuance of any show-cause notice or without hearing the petitioner, the respondents have passed the impugned order, which is not sustainable in the eyes of law and is fit to be quashed and set aside.
16. The Hon'ble Apex Court in catena of decisions has held that any order visiting with civil or evil consequences, cannot be acted upon without affording an opportunity of hearing and without following the cardinal principles of natural justice and the same is fit to be quashed and set aside. In case of Canara Bank v. Debasis, reported in (2003) 4 SCC 557, the Hon'ble Supreme Court has observed thus:
“15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. …………. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time …………”
17. As a sequel to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the appointment of the petitioner being in consonance with the Rules and Guidelines is hereby upheld and the office order bearing memo No. 2103 dated 28.11.2018 (Annexure-18) being devoid of any merit is hereby quashed and set aside. The petitioner will continue on the post on which he was appointed.
18. Resultantly, the writ petition stands allowed.
19. No order as to costs.