Dismissed

Manish Majumdar v. Cantonment Board Office and 8 Others

Allahabad HC19 Apr 2018SPLA/299/2018

Case brief

AI extract

What is this about?

This Special Appeal challenged the dismissal of a writ petition seeking to quash a discharge order. The High Court upheld the discharge, finding the entire recruitment process vitiated because a mandatory typing test was not conducted, despite the appellant's claims to the contrary.

What did the court decide?

Special Appeal dismissed; Impugned order dated 15 January 2018 upheld.

Manish Majumdar Vs Cantonment Board Office… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No.39

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Case :- SPECIAL APPEAL No. - 299 of 2018

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Appellant :- Manish Majumdar Respondent :- Cantonment Board Office And 8 Others Counsel for Appellant :- Veerendra Kumar Shukla,Anand Bhaskar Srivastava Counsel for Respondent :- A.S.G.I.,Mohd. Isa Khan,Munna Kumar Singh,Sharad Chandra Mishra

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Hon'ble Dilip Gupta, J. Hon'ble Neeraj Tiwari, J.

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The dismissal of the writ petition filed by the appellant for quashing the order dated 15 January 2018 passed by the Chief Executive Officer, Cantonment Board, Shahjahanpur has led to the filing of this Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules.

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The Chief Executive Officer by the order dated 15 January 2018 rejected the representation filed by the writ petitioner against the order dated 10 April 2017 by which the writ petitioner was discharged from service. The said order mentions that in regard to the recruitment to the post of Junior Clerk in the Cantonment Board, Shahjahanpur some complaints had been received regarding irregularities committed in the recruitment process and appointment of three Junior Clerks namely Shilpi Kumari, Manish Majumdar (writ petitioner) and Sumit Yadav.

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The Joint Director, Defence Estates Central Command, Lucknow was deputed to conduct an enquiry into the said complaints and the said officer found that the recruitment process

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2 suffered from irregularities noted in the order which vitiated the whole recruitment process. The irregularities that had been mentioned are as follows :

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“I. Condition(e)(iii)&(iv) of the advertisement was not follows.

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II. Typing test was not conducted as per advertisement/notification.

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III. Written test and interview were kept for 100 marks each which is against prevalent policy in State and Central Recruitment.

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IV. Time was not mentioned for written test. V. Interview assessment was not proper. VI. Km. Shilpi Keshari has submitted application in plain papers without date of birth and O.B.C. Certificate. VII. Km. Shilpi Keshari was favoured by giving extra time. Undue advantage given to her was proved. VIII. The interview committee was not properly constituted.

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IX. The process of selection of the candidates involves malpractices, visible manipulations and non adherence to the given terms of notification.

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X. There was sanction for filling up of only one permanent post of Junior Clerk and one temporary post of Junior Clerk, whereas, one more permanent clerk post had been filled by the Chief Executive Officer, without permission/sanction.

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XI. The recruitment conditions were not met. The typing test criteria, O.B.C. Criteria was not scrupulously followed.”

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The Chief Executive Officer considered the enquiry report and issued a show cause notice dated 5 March 2012 to the writ petitioner. A reply dated 2 April 2012 was filed to the show cause notice and on a consideration of the enquiry report, the show cause notice and the reply filed by the writ petitioner, the Chief Executive Officer by invoking Rule 8(1)(a) of the Cantonment

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Funds Services Rules, 1937¹ , discharged the writ petitioner from the post of Junior Clerk by order dated 10 April 2012.

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This order dated 10 April 2012 was assailed by the writ petitioner in Writ-A No.22458 of 2012. The writ petition was allowed by judgment and order dated 4 October 2017 with the following observations :

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“10. Since, the impugned orders imposing major penalty of discharge from service have been passed without consideration to the reply to the charges filed by the petitioners, therefore,on this ground alone and without expressing any opnion on the merits of the case, both the impugned orders dated 10.4.2012 in the aforesaid writ petitions are quashed, leaving it open to the concerned respondent to pass reasoned orders afresh in accordance with law after affording reasonable opportunity of hearing to the petitioners.

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In view of the aforesaid, both the writ petitions are allowed.The matter is remitted back to the Chief Executive Officer, Shahjahanpur, to pass speaking and reasoned orders in accordane with law, after affording reasonable opportunity of hearing to the petitioners, expeditiously, preferably within three months from the date of presentation of certified copy of this order, without being influenced by any of the observations made in the body of this order.

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It is made clear that this Court has not expressed any opinion on the merits of the case.”

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Thereafter, the Chief Executive Officer passed a fresh order dated 15 January 2018. After taking into consideration the reply furnished by the writ petitioner, the Chief Executive Officer concluded that no typing test was held as per the advertisement. The Chief Executive Officer also concluded that the process of

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1 the Rules

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selection/recruitment on the post of Junior Clerk pursuant to the advertisement dated 12 September 2009/23 October 2009 was not done properly as was also found by the Enquiry Officer in his report. Thus, the entire process of selection/recruitment was not in accordance with the Rules and Regulations and stood vitiated. The discharge order dated 10 April 2012 was, accordingly, found to be just and valid. It is this decision dated 15 January 2018 that was assailed in Writ-A No.7149 of 2018 out of which this Special Appeal arises.

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It would be appropriate to refer the findings recorded by the learned Judge for dismissing the writ petition and the same are as follows :

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“I have confined myself to the finding regarding typing test has not been held. The post is of Junior Clerk on which the selection and appointment of the petitioner has been made. Its recruitment has to be held according to provisions of Cantonment Fund Servants Rules 1937. Essential qualification for the aforesaid post as according to the Rules as advertised in the advertisement was Intermediate with minimum typing speed of 30 word per minute in English and Hindi. Thus typing with minimum speed of 30 word per minute was one of the essential qualification for the post of Junior Clerk. In writ petition, the petitioner has filed first letter dated 25.1.2010 fixing 15.2.2010 for written examination and second letter dated 3.4.2012 fixing 27.4.2010 for interview. It is admitted that in the written examination, there was no paper relating to typing test. However, it has been alleged that at the time of interview, typing test was taken and after typing test , the interview was held. This reply of the petitioner is not liable to be accepted inasmuch as in the information as supplied to the petitioner , the information has been given that on the date of interview the marks has been awarded for computer knowledge test as well for interview. Final select list

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has been filed by the petitioner as Annexure -6 to the writ petition in which also the marks of written test and interview has been given from which also it is provided that there was neither any mark for typing test nor it was separately conducted by the respondents. So far as computer knowledge test is concerned, it was not a typing test rater it was a computer operation test while typing with minimum speed of 30 words per minute was required. Thus reply of the petitioner in this respect is not liable to be accepted.

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Since the typing test was essential qualification for the post of Junior Clerk and no typing test was held, therefore, by the impugned order, it has been rightly held that selection was not done according to the proper procedure of the service Rules.

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No interference is required by this Court. The writ petition is dismissed.”

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Sri Ashok Khare, learned Senior Counsel appearing for the appellant assisted by Sri Veerendra Kumar Shukla submitted that in fact a typing test was held and the finding to the contrary recorded in the impugned order is not correct. Learned Senior Counsel further submitted that the requirement of English and Hindi typing with a speed of 30 words per minute was a desirable qualification and, therefore, even if such a test was not conducted, it cannot be said that the recruitment process vitiated.

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Mohd. Isa Khan, learned counsel appearing for the respondents has placed before the Court the advertisement as also the enquiry report and the order dated 15 January 2018 and has submitted that a finding has been recorded by the learned Judge that typing test was not held, is not vitiated. His submission is that apart from the other irregularities that had been committed, of which reference has been made in the order dated 15 January

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2018, the entire selection/recruitment process stood vitiated in the absence of a typing test.

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We have considered the submissions advanced by learned counsel for the parties.

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As noted above, the Joint Director, Defence Estates Central Command, Lucknow found as many as 11 irregularities of which reference has been made above. The Joint Director had examined all these 11 irregularities and in regard to the issue as to whether the typing test was conducted to assess the qualification criteria, categorically observed that the typing test was not conducted. This test should have been conducted in order to assess the suitability of the candidate to the post of Junior Clerk. Thus, that was a major violation of the qualifications/conditions. The reply submitted by the writ petitioner to the show cause notice has been elaborately considered by the Chief Executive Officer, Shahjahanpur in his order dated 15 January 2018. The writ petitioner could not substantiate that a typing test was held and on a perusal of the records, the Chief Executive Officer recorded the categorical finding that no typing test was held at all.

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The learned Judge has also examined the two letters placed by the writ petitioner; namely the letter dated 25 January 2010 fixing 15 January 2010 for the written examination and the letter dated 3 April 2012 fixing 27 April 2012 for the interview. The learned Judge noticed that only a written examination was conducted and no typing test was held. The contention that at the

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time of interview, the typing test was held, was repelled as even on the date of interview, only knowledge of computers was tested and not the speed. In fact the select list which was filed by the writ petitioner also indicates that only marks for the written test and interview was awarded. There is no mention about the typing test or any indication that the candidates are succeeded or not succeeded. Though, typing speed may have been a desirable requirement, but nonetheless it was obligatory on the part of the examining body to have conducted a typing test. The entire recruitment/section process stood vitiated. The discharge notice, accordingly, issued to the writ petitioner, therefore, cannot be said to be bad in law.

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The Special Appeal is, accordingly, dismissed.

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Order Date :- 19.04.2018 GS

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(Dilip Gupta, J.)

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(Neeraj Tiwari, J.)

Manish Majumdar v. Cantonment Board Office and 8 Others

Case brief

What is this about?

What did the court decide?

Manish Majumdar v. Cantonment Board Office and 8 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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