Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a case filed by Swapnil Prakash Parab (‘petitioner’) challenging rejection to the representation made before Bhabha Atomic Research Centre/BARC (‘Respondent 2’) on the orders of the Supreme Court. The case relates to non-disclosure of pendency of criminal case in the candidate declaration form, a Division Bench of R N Laddha and S V Gangapurwala, JJ., upheld the rejection by respondent 2 in view of the sensitive nature of work conducted in BARC, a candidate interested in joining such a sensitive institution is expected to have a flawless character and integrity without blemishes. An individual with criminal antecedents will not fit in this category and hiding the same, questions his honesty and integrity that are the inherent requirements in public employment.

Counsel for petitioner submitted that the Petitioner had no intention to suppress any information from the Respondent authority and non-disclosure of pendency of criminal case was the bonafide mistake of the Petitioner. Mere involvement in some petty cases would not render a person unsuitable for the job and the Petitioner was acquitted by Judgment dated 8th June 2016.

Counsel for State submitted that it was not in dispute that on the date when the Petitioner filled the application form, a criminal case was pending against him. His later acquittal on its own would not be sufficient to wash away the suppression of material facts. Verifying character and antecedents is also part of the recruitment process.

In Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya, (2021) 10 SCC 136, the Court observed that,

The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and / or trustworthiness of such an employee who at the initial stage of the employment i.e., while submitting the declaration / verification and /or applying for a post made false declaration and / or not disclosing and / or suppressing material fact of having involved in a criminal case. If the correct facts had been disclosed, the employer might not have appointed him. Then the question is of TRUST.

The Court observed that by perusing the facts of the case and material present before the Court, it is clear that there is nothing on record even to suggest that the decision taken by the concerned Authority in rejecting the candidature of the Respondent was in any way actuated by malafides or suffered on any other count.

The Court however remarked regarding the criminal case pending against the candidate in the words: “The order records that there was a counter criminal case, and the parties had settled the disputes and requested to compound the offences. Both cases involve offences which were not compoundable. Therefore, the parties were asked to lead the evidence. The witness had turned hostile. The Petitioner was thereupon acquitted.

The Court further noted that BARC is the nation’s premier research center and is engaged in advanced research and development activities in nuclear science. He should be reliable and trustworthy. He was expected to state all the required information honestly as honesty and integrity are the inherent requirements in public employment.

The Court opined that the petitioner should have made a declaration and left it to the employer to determine the effect of the pendency of a criminal case on his upcoming job. His subsequent acquittal on its own would not be enough to erase the suppression of essential facts.

Thus, the Court held that looking at the sensitive nature of activities undertaken at Bhabha Atomic Research Centre, we cannot say that the employer’s decision to reject the Petitioner’s representation was unreasonable or arbitrary.

[Swapnil Prakash Parab v. State of Maharashtra, 2022 SCC OnLine Bom 2338, decided on 16-09-2022]


Advocates who appeared in this case:

Mr. Amit Dubey a/w Ashok M. Saraogi for the Petitioner;

Mr. M.A. Sayed, AGP for the State;

Mr. Neel G. Helekar a/w Mr. P.J. Khosla for Respondent 2.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Anoop Kumar Dhand and Pankaj Bharadwaj, JJ., disposed of the petition and directed the Department to appoint the respondent.

The facts of the case are that the North Western Railway Recruitment Cell issued an advertisement for recruitment on several posts of Group ‘D’ i.e. Track Man, Traffic Khallasi, Helper, Cleaner, Cook etc.  Pursuant to the said advertisement, the respondent submitted an application under the category of Other Backward Class (OBC). After participation in the process for selection, he qualified in the written examination, physical eligibility test and medical test but, subsequently his candidature was rejected as the Postal Order submitted by him was not within limitation. The respondent being aggrieved filed Original Application before the Tribunal pleading therein that the Postal Order submitted by him was well within the parameters and the amount of said Postal Order was received by the Railway Department and the same was also credited in its account but inadvertently, in the application form, the wrong year of Postal Order was mentioned. The Tribunal allowed the Original Application and directed the petitioners-Department to give appointment to him on the post of Group-D with all consequential benefits. Aggrieved by the same, instant petition was filed by the petitioner- Department.

Counsel for the petitioners submitted that the respondent is not entitled to get appointment in view of the provisions contained in Para No.8.11 of the Advertisement dated 16-12-2010. The respondent has mentioned the details of the Postal Order in his application form and as per Sub-para (XV) of Para 8.11 of the Advertisement, the application form of the respondent was liable to be rejected on the ground of furnishing incorrect information by him. Counsel argued that in para No.7.4 of the Advertisement, it is clearly mentioned that the Postal Order/Bank Drafts/Pay Order for payment of requisite fee issued prior to the date of advertisement or beyond the validity of six months, will not be accepted. Thus, in view of the conditions mentioned in Para Nos.7.4 and 8.11 of the Advertisement, the candidature of the respondent was rightly rejected and the Tribunal has committed an error in allowing the Original Application filed by the respondent.

Counsel for the respondent submitted that the mistake is an inadvertent human error and that the mistake committed by the respondent has not caused any prejudice to any third party. Thus, the Tribunal has not committed any illegality in allowing the application filed by the respondent.

The court relied on judgment Kavita Chaudhary v. Registrar (Examination), D.B. Civil Special Appeal (Writ) No.1700/2017 on 01-11-2017 in the case of “To err is human, to forgive is divine”, the mistake can be of two kinds. First kind of mistake would not be where nobody is affected by a mistake and the second mistake where a third party is affected by a mistake. The difference in two mistakes would be that whereas the rectification of the first mistake would cause no prejudice, rectification of the second would cause a prejudice.

The Court observed that this is not a case where fraud has been committed by the respondent. But the error/mistake was there on the part of the respondent in mentioning the incorrect date of the Postal Order in the application. Once the application was accepted by the petitioner-Department after getting the requisite fee amount of Postal Order, which was credited in its account and subsequently the respondent was allowed to participate in the recruitment process, the petitioner-Department cannot be permitted to reject the candidature of the respondent merely on hyper-technical ground. It is expected from the welfare state to act fairly. But in this case, the action of the petitioner-Department was totally unfair in rejecting the candidature of the respondent only on the ground that he mentioned the incorrect date of the postal order as 10-01-2010 in place of 10-01-2011. When once the requisite amount of fee was credited in the account of the petitioner department and after that the respondent was allowed to participate in the entire recruitment process, then the petitionerDepartment is stucked to change its stand.

The Court observed that it is the settled position of law that whenever there is a conflict between the substantial justice and hyper-technicality then the substantial justice should be preferred to avoid the defeat for the ends of justice. If the hypertechnical stand of the petitioner is allowed to stand as it is then it would amount to failure of justice. The judgments cited by the counsel for the petitioners are not applicable to the facts of the present case.

The Court held “The order passed by the Tribunal does not require any disturbance in the hands of this Court. Thus, the order dated 12.10.2021 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur in OA No. 291/683/2013 is confirmed.”

The Court directed the petitioner Department “to give appointment to the respondent on the post of Group-D with all consequential benefits, if he is otherwise found suitable for the said post, except monetary benefits. The said exercise shall be carried out by the petitioner within a period of three months from the date of receipt of a certified copy of this order.”[Union of India v. Harendra Gawaria, 2022 SCC OnLine Raj 463, decided on 04-02-2022]


For Petitioner(s): Mr. P.C. Sharma, Adv

For Respondent(s): Mr. Devendra Sharma, Adv and Mr. Balram Vashistha, Adv.


Arunima Bose, Editorial Assistant has reported this brief.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Manojit Bhuyan J., simplifying the applicability of Rule 3 and Rule 4 of Assam Public Service (Preferential Appointment) Rules, 1999, said, “It would not be open to the petitioners to ask for a blanket direction to the respondents for providing employment in the government service under the Rules of 1999.”

Background

The petitioners claim that they belong to a family, a member of which had been rendered physically disabled on account of participation in the Assam Movement on the issue of foreigners. It is stated that they also hold necessary certificates issued by the Deputy Commissioner of the concerned district. In the above regard, submission made is that they come within the definition of “Affected Candidate” in terms of Rule 2(a) of the Assam Public Service (Preferential Appointment) Rules, 1999. Case laid is that although they made application before the Deputy Commissioner, Dhemaji, claiming appointment to Government service on preferential basis and despite such application being forwarded to the Government of Assam in the Implementation of Assam Accord Department, no positive action came about, thus, compelling them to institute the present writ petition. Prayer made is for a direction to the respondents to expedite the process of granting employment to the petitioners in Government service as per the aforesaid Rules of 1999.

 Assam Public Service (Preferential Appointment) Rules, 1999

Rule 3 Application

These rules shall apply to all the services and posts under the Government of Assam, recruitment to which are made through the Assam Public Service Commission or otherwise than through the Assam Public Service Commission.

Rule 4 Preference for Appointment

  • Subject to the provisions of these rule wherever any recruitment to services and posts referred to in Rule 3 is made, one affected candidate who is otherwise eligible under the normal rules shall, ceteris paribus be given preference in making appointments;

Provided that such preference shall be subject to reservation in favour of candidates who are members of the Scheduled Castes, Scheduled Tribes (Plains & Hills), Other Backward Classes (including More Other Backward Classes), Ex-Servicemen and physically handicapped persons:

Provided further that appointment of any affected candidate who is also a candidate of the category mentioned in the preceding proviso shall be set off against the percentage reserved for the members of that particular category.

Explanation- For the purpose of this Rule the expression ‘who is otherwise eligible under the normal Rules” shall mean an affected candidate whose name is included within the range of 3 (three) times of the number of vacancies in the result sheet of the candidates arranged in order of merit.

  • If any affected candidate applies for any post claiming preference, he shall enclose a certificate from the Deputy Commissioner concerned to the effect that he is an affected person being a member of the family of a martyr or the family of a physically disabled person.

Observations

Applying strict rule of interpretation, the Court observed, “If the petitioners are keen to secure employment under the Government of Assam, they will have to strictly abide by the manner and procedure provided under the Rule 3 and 4 of the aforesaid Rules. It would not be open to the petitioners to ask for a blanket direction to the respondents for providing employment in the government service under the Rules of 1999. What would be required for making a valid claim for preferential appointment is that they must (i) possess a certificate issued by the Deputy Commissioner concerned showing that they are persons falling within the definition of ‘Affected Candidate’ under Rule 2(a) and (ii) while making application for recruitment to any service or post under the Government of Assam must enclose therewith the certificate issued by the Deputy Commissioner concerned. Further, they must otherwise be eligible under the normal Rules and their candidature, as per the Explanation appended to Rule 4, would only stand if their names are included within the range of three times the number of vacancies in the result sheet of the candidates arranged in order of merit.”

Decision

Making aforesaid observations, the Court reiterated the necessity of procedural compliance with respect to preferential appointments.[Narayan Borah v. State of Assam, 2020 SCC OnLine Gau 4644, decided on 01-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ, while upholding Allahabad High Court’s order dismissing the petition challenging the election of Prime Minister Narendra Modi to the 17th Lok Sabha from 77th Parliamentary Constituency (Varanasi), held in April – May 2019, explained the true import of the term “duly nominated”.

Section 81 of the Act provides that an Election Petition may be presented by (a) any elector or (b) any candidate at such election. The term ‘candidate’ is defined in Section 79 (b)4 of the Act. The first part of definition is intended to cover a person who has been duly nominated as a candidate. Inter-alia the second part covers a person who considers himself entitled to have been duly nominated as a candidate.

Considering the need to explain the true import of the term “duly nominated”, the Court noted that the requirement of Section 33(3) that a nomination of a dismissed officer must be accompanied by a certificate that he was not dismissed on the ground of corruption or disloyalty to the State must be read as obligatory. It is couched in a language which is imperative and provides for a certain consequence viz. that such a person shall not be deemed to be a duly nominated candidate.

“The word ‘deemed’ in this provision does not create a legal fiction. It clarifies any doubt anyone might entertain as to the legal character of a person who has not and states with definiteness that such a person shall not be deemed to be duly nominated.”

It was hence, held that it would be absurd to construe the legislative scheme as permitting a person who has not filed his nomination in accordance with Section 33 (3), as enabling him to claim that he is a duly nominated candidate even though the provision mandates that such a person shall not be deemed to be a duly nominated candidate.

The Court, hence, noticed that

“Any other construction of the scheme of the law in this regard would be startling as it would enable a person who was not an elector and not even entitled to be nominated as a candidate for an election to question the election of a returned candidate.”

Further, Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition.

[Tej Bahadur v. Narendra Modi, 2020 SCC OnLine SC 951, decided on 24.11.2020]


*Justice SA Bobde, CJI has penned this judgment 

For appellant: Advocate Pradeep Kumar Yadav

For Respondent: Senior Advocate Harish N. Salve

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ has upheld Allahabad High Court’s order dismissing the petition challenging the election of Prime Minister Narendra Modi to the 17th Lok Sabha from 77th Parliamentary Constituency (Varanasi), held in April – May 2019.


Facts leading to this order


  • The Election Petition was filed by ex-BSF Jawan Tej Bahadur challenging the rejection of his nomination papers and had also alleged that nomination of PM Modi was wrongly accepted for want of disclosure of certain facts.
  • Tej Bahadur, a former employee of the Border Security Force, was dismissed from service on 19.4.2017.
  • He filed two nominations, one on 24.4.2019 and another on 29.4.2019. The nominations were found to be invalid by the returning officer for want of a certificate to the effect that the appellant has not been dismissed for corruption or disloyalty to the State as required by Section 9(2)1 read with Section 33 (3)2 of the Representation of the People Act, 1951.
  • In the application for dismissal of the petition filed by PM Modi, it was contended that the petition does not disclose any cause of action and the appellant had no locus to file the petition in the absence of a certificate.
  • The Allahabad High Court after hearing parties, by a detailed order dismissed the Election Petition on the ground that Tej Bahadur had no locus to challenge the election of PM Modi from the Varanasi Parliamentary Constituency since he was neither an elector for such constituency nor was he a candidate.

What the Supreme Court said 


The Court heard and decided the question of the validity of the appellant’s nomination since that had a direct bearing on the question whether he is candidate and has a right to question the election.

On failure to produce certificate showing that the appellant was not dismissed on the basis of corruption or disloyalty to the State

The Court noticed that Clause (6) of Part IIIA of Form 2A of the nomination paper contains a query whether the candidate was dismissed for corruption or for disloyalty while holding office under the Government of India or Government of any State. In the first nomination form filed by the appellant on 24.4.2019, the appellant stated ‘Yes’ against this query and disclosed the date of his dismissal as 19.4.2017. In the reply to the same query in the second nomination form filed by him on 29.4.2019, he stated ‘No’. The Returning Officer issued two notices on 30.4.2019 referring to the different answers in the two nominations.

The notices further pointed out that the appellant had placed on record evidence that he was dismissed from the service of Government of India within five years before the date of the nomination. But that his nomination form was not accompanied by the requisite certificate. He was required to submit a certificate of the Election Commission to prove that he was not dismissed from service on the ground of corruption or disloyalty to the State as required under Section 9 (2) and Section 33 (3) of the Act. He was given time up to 11:00 am on the next day i.e. 01.05.2019 by both notices to furnish such a certificate from the Election Commission. This time was given in accordance with the provision of Sub-section (5) of Section 363 which allows a candidate to rebut any objection not later than the next day but one.

The Court, however, noticed that in spite of repeated query, the appellant failed to point out any evidence on record to show that the appellant had demanded time to produce the certificate not later than the next day but one following the date fixed for scrutiny.

On the date of filing the nomination the appellant did not possess the required certificate which was not produced along with the nomination paper. In the oath letter dated 30.04.2019 relied upon by the learned counsel for the appellant, he merely justifies the absence of requisite certificate on the ground that he was not notified earlier and that he has never been dismissed on the basis of corruption or disloyalty to the State. However, the appellant neither possessed the required certificate on the date of the filing the nomination, at the time of scrutiny, on the next day but one following the date fixed for scrutiny or even at the time of the filing the Election Petition.

On appellant’s locus standi

Section 81 of the Act provides that an Election Petition may be presented by (a) any elector or (b) any candidate at such election. Admittedly, the appellant is not an elector registered in the Varanasi constituency since he is enrolled as an elector of Bhiwani, Mahendragarh Parliamentary Constituency, Haryana.

The term ‘candidate’ is defined in Section 79 (b)4 of the Act. The first part of definition is intended to cover a person who has been duly nominated as a candidate. Inter-alia the second part covers a person who considers himself entitled to have been duly nominated as a candidate.

Considering the need to explain the true import of the term “duly nominated”, the Court noted that the requirement of Section 33(3) that a nomination of a dismissed officer must be accompanied by a certificate that he was not dismissed on the ground of corruption or disloyalty to the State must be read as obligatory. It is couched in a language which is imperative and provides for a certain consequence viz. that such a person shall not be deemed to be a duly nominated candidate.

“The word ‘deemed’ in this provision does not create a legal fiction. It clarifies any doubt anyone might entertain as to the legal character of a person who has not and states with definiteness that such a person shall not be deemed to be duly nominated.”

It was hence, held that it would be absurd to construe the legislative scheme as permitting a person who has not filed his nomination in accordance with Section 33 (3), as enabling him to claim that he is a duly nominated candidate even though the provision mandates that such a person shall not be deemed to be a duly nominated candidate.

The Court, hence, noticed that

“Any other construction of the scheme of the law in this regard would be startling as it would enable a person who was not an elector and not even entitled to be nominated as a candidate for an election to question the election of a returned candidate.”

Further, Section 83 of the Act allows only an elector or candidate to maintain an Election Petition. Impliedly, it bars any other person from filing an Election Petition.

Stating that the Election petition was rightly nipped in the bud, the Court said,

“We find that the averments in the petition do not disclose that the appellant has a cause of action which invest him with right to sue. It is settled that where a person has no interest at all, or no sufficient interest to support a legal claim or action he will have no locus standi to sue. The entitlement to sue or locus standi is an integral part of cause of action.”

[Tej Bahadur v. Narendra Modi, 2020 SCC OnLine SC 951, decided on 24.11.2020]


*Justice SA Bobde, CJI has penned this judgment 

For appellant: Advocate Pradeep Kumar Yadav

For Respondent: Senior Advocate Harish N. Salve

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. rejected an appeal filed by a candidate who had appeared for the Bihar Public Service Commission (BPSC) examination in 2015, but failed to qualify the same; holding that the decision of Commission could not be faulted on legal or any other ground.

The dispute herein was centered around marking of OMR sheet and marks obtained by the petitioner in examinations for the post of Assistant held by BPSC. The appellant herein, had filed a writ petition before this Court contending that he had obtained 132 marks, and since cut-off for the category to which he belonged was 130 marks, he was entitled to be selected. The respondent Public Service Commission’s case was that the appellant had erased six questions in the OMR sheet due to which six marks were deducted and he was awarded 126 marks instead of 132. The learned Single Judge dismissed the writ petition; aggrieved whereby the instant petition was filed.

Mr P.N. Shahi, learned counsel for the respondent, drew the attention of Court towards condition nos. 10 and 12 of instructions contained in the leaflet of Commission which clearly mentioned that ‘any eraser or change is not allowed’ and that ‘failure to comply with any of its instructions would render the candidate liable to such action or penalty as the Commission may decide at their discretion’. He placed reliance on the Division Bench’s judgment in Pushpa Kumari v. State of Bihar, 2016 SCC OnLine Pat 2668 where such a condition imposed by the Commission in another examination was held to be mandatory. Further, appellant’s OMR sheet was produced before the Court and it was pointed out that whitener had been used for erasing the answers already attempted by him for six questions.

The Court opined that Clause 10 of the respondent Commissions instructions clearly provided that any eraser or change is not allowed. The said condition was mandatory in view of the reasoning in Pushpa Kumari case. It was held that any attempt to answer a question a second time after erasing the first answer, results in disallowing the said answer, necessary consequence whereof is a deduction of marks for the said answer.

In view of the above, the appeal was rejected.[Abhishek Kumar v. State of Bihar, 2019 SCC OnLine Pat 479, Order dated 10-04-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Arun Bhansali, J. dismissed a plea against the grant of inadequate time to appear for the PET examination.

This writ petition was sought by the petitioner to direct the respondents to conduct fresh Physical Efficiency Test (PET) as he was not granted sufficient time to prepare for the same result of which he failed.

Referring to the facts, after passing the written examination for the post of Constable, the petitioner downloaded his admission card one day before the PET wherein he was to run for 5 km in 25 min and being well aware of such requirements he opted to fill the form, therefore the claim for lack of time was baseless as he had sufficient time and opportunity to participate in the said test.

Accordingly being devoid of merits, the writ petition was dismissed. [Tejpal Singh v. State of Rajasthan,2018 SCC OnLine Raj 2178, decided on 29-11-2018]