Rafiqul Islam Vs the State of Assam and 3 Ors.

Seeking to invoke the extra-ordinary, discretionary and equitable jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has preferred the instant writ petition making an assail to an Order dated 30.08.2023 passed by the Principal-cum-Chief Superintendent, Tezpur Medical College & Hospital, Tezpur [the respondent no. 4] whereby the appointment of the petitioner in the post of Blacksmith has been cancelled with immediate effect.

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It is necessary to delineate, at first, the events leading to the appointment of the petitioner in the post of Blacksmith by the Director of Medical Education, Assam [the respondent no. 3] vide an Order dated 25.05.2023.

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The petitioner is in possession of a Trade Certificate for the trade of ‘Electrician’ as he completed the course of training for such trade at the Industrial Training Institute [ITI]. The petitioner has been issued the requisite Trade Certificate for the trade of Electrician by the State Council of Vocational Training, Assam at Guwahati.

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On 10.12.2021, an Advertisement was published by the respondent no. 3 inviting applications for filling in a nos. of vacancies in existing vacant posts and newly created posts in Grade-III [Technical and Non-Technical] under the Directorate of Medical Education, Assam and different Medical Colleges and Hospitals as well as Dental Colleges, Nursing Colleges, Paramedical Institutes, etc. of the State under the establishment of the Directorate of Medical Education, Assam. In the said Advertisement, posts for twenty-three categories were advertised and the post of Blacksmith was one of them. In the said Advertisement, the number of vacancies for which the recruitment process would be carried out were also mentioned. In so far as the post of Blacksmith was concerned, the Advertisement mentioned that there was one vacancy in the post of Blacksmith. The Advertisement also mentioned the requisite qualifications to be possessed by the candidates for filling up each category of post. For the post of Blacksmith, the requisite qualification was ITI Pass Certificate / NCVT Certificate in Black Smithy.

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It has been stated at the Bar that almost simultaneously three more Advertisements were also published by the Directorate of Health Services, Assam; the Directorate of Health Services [FW], Assam; and the Directorate of AYUSH, Assam; in the month of December, 2021. By the said three Advertisements, applications were invited from eligible candidates for filling up vacancies in a number of different categories of post. In the Advertisement published by the Directorate of Health Services, Assam; applications were invited for filling in ten posts of Electrician from candidates

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possessing qualification – High School Leaving Certificate [HSLC] Examination pass with Diploma in Electrical from Government ITI or from any Government recognized Institute.

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As all the Advertisements were under the Health & Family Welfare Department and the Directorate of Medical Education & Research Department, Government of Assam, a decision was undertaken to proceed with a combined selection process for all the categories of posts advertised vide the afore-mentioned four Advertisements.

¶30

The petitioner responded to the Advertisement dated 10.12.2021 published by the Directorate of Medical Education, Assam as well as to the Advertisement published by the Directorate of Health Services, Assam. The applications were to be submitted online. The petitioner’s online applications were accepted for the posts of Blacksmith and Museum Keeper under the establishment of the Directorate of Medical Education, Assam and also for the posts of Electrician and Basic Health Worker [BHW] under the establishment of the Directorate of Health Services, Assam as the same is evident from the uploaded application form of the petitioner, which is annexed as Annexure-C to the writ petition.

¶31

Subsequent to submission of his application, the petitioner was issued an Admit Card with Roll No. 10315308. In the Admit Card, the posts applied for by the petitioner were shown as Blacksmith and Electrician. By the Admit Card, the petitioner was directed to appear in a Written Test scheduled on 29.05.2022. The petitioner had appeared in the Written Test held on 29.05.2022. It was mentioned in the Admit Card that there would be a single question paper for all Grade-III [Technical] posts and separate post-wise merit list would be prepared as per the marks secured in the Written Test and Roll numbers of the short-listed candidates would be published for every

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post advertised for appearing in Skill Test and Documents Verification subsequently.

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It was on 18.04.2023, all the four Directorates jointly published a Notice indicating the Roll numbers of the candidates who had been short-listed on the basis of marks secured in the Written Test. It is the case of the petitioner that on the basis of his performance in the Written Test, he was short-listed for the next stage of the recruitment process for the post of Blacksmith. The Notice short-listed four nos. of candidates, in total, for the next stage of the recruitment process for the post of Blacksmith. The petitioner has, however, maintained silence as regards his short-listing for the post of Electrician for which he holds the Trade Certificate.

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By the Notice, the short-listed candidates were informed that they would be appearing for Skill Test and Document Verification on the dates and time shown in the Notice itself. The Notice mentioned that the Skill Test would be conducted on 25.04.2023 for the post of Blacksmith and the short-listed candidates were directed to bring all the relevant documents, mentioned therein, in original.

¶36

After completion of the Skill Test and Document Verification process, all the four Directorates involved in the recruitment process published a Notice on 10.05.2023, notifying the names of candidates who were selected for the Grade-III [Technical] posts under the Directorates. The petitioner's name was shown as the selected candidate for the lone post advertised for Blacksmith. It was thereafter, the Order of Appointment came to be issued on 25.05.2023 whereby the petitioner was offered apppointment to the Grade-III post of Blacksmith in the vacancy available at Tezpur Medical College & Hospital [TMCH] at Tezpur. On receipt of the Appointment Order dated 25.05.2023, the petitioner immediately joined in the post by

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submitting a joining letter. The petitioner was admitted to the National Pension System [NPS] and he continued to discharge duties in the post of Blacksmith in the TMCH till 30.08.2023 when the impugned Order came to be passed whereby the petitioner's appointment as a Blacksmith stood cancelled with immediate effect.

¶39

I have heard Mr. Y.S. Mannan, learned counsel for the petitioner and Mr. B. Gogoi, learned Additional Advocate General, Assam for all the respondents.

¶40

Mr. Mannan, learned counsel appearing for the petitioner has submitted that the petitioner had participated in the recruitment process by appearing in the Written Test held on 29.05.2022. On the basis of the marks secured in the Written Test by the petitioner, the petitioner was short-listed for the next stage, Skill Test for both the posts of Blacksmith and Electrician. The petitioner ultimately came to be selected for the post of Blacksmith by the Appointment Order dated 25.05.2023 and in response to the Appointment Order, he joined the service immediately. From the Advertisement itself, it is evident that the post where the petitioner joined was a sanctioned vacant post. Therefore, the petitioner's appointment could not have been cancelled without any prior notice. It is contended that the actions on the part of the respondent authorities are in clear violation of the constitutional provision contained in Article 311 of the Constitution of India and the principles of natural justice. As the case of petitioner's appointment is a case of no prior notice, the impugned Order dated 30.08.2023 is unsustainable in law. He has further pointed out that the Medical Superintendent of the TMCH has certified on 28.09.2023 in a Certificate of even date [Annexure-N] that as there was no Blacksmith activity in the TMCH, the petitioner had been allowed to work as Technician [Electrician] in the TMCH during the period from 15.06.2023 to 30.08.2023. Mr. Mannan has submitted that the same goes to indicate that the service of the petitioner was utilized by the

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authorities in the TMCH in terms of the skill and Trade for which the petitioner was eligible. In such view of the matter, the action on the part of the respondent authorities in cancelling the appointment of petitioner is clearly an arbitrary act which requires to be interfered with and the petitioner should be accommodated in a post of Electrician.

¶43

13.1. To buttress his submissions, Mr. Mannan has referred to the decisions in Kamal Nayan Mishra vs. State of Madhya Pradesh and others, [2010] 2 SCC 169; Vikash Pratap Singh and others vs. State of Chhattisgarh and others, [2013] 14 SCC 494; and Swati Priyadarshini vs. the State of Madhya Pradesh & others, 2024 INSC 620 .

¶44

Mr. Gogoi, learned Additional Advocate General, Assam appearing for the State respondents has submitted that it is an admitted position that the petitioner is in possession of a Trade Certificate for the trade, ‘Electrician’ and he is not in possession of a Trade Certificate for the trade, ‘Black Smithy’. The petitioner might have applied for four posts in response to the four Advertisements, but his credentials go to indicate that he is in possession of the requisite qualification only for the post of Electrician which was advertised by the Directorate of Health Services, Assam. The said Advertisement published by the Directorate of Health Services, Assam has not been made a part of the case. Placing a copy of the Advertisement [marked & kept as Document – ‘X’] published by the Directorate of Health Services, Assam wherein the post of Electrician was advertised, Mr. Gogoi has submitted that by the said Advertisement, applications were invited for filling up ten nos. of vacancies in the post of Electrician. Mr. Gogoi has further submitted, by pointing out to the Notice dated 10.05.2023 annexed to the affidavit-in-opposition of the respondent no. 3, that against ten nos. of vacancies sanctioned for the post of Electrician, ten nos. of candidates had already been selected and appointed, meaning thereby, the petitioner was

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not a selected person for the post of Electrician. He has fairly submitted that there might be certain mistakes at some stage of the recruitment process for which the petitioner, though not in possession of the requisite qualification to hold the post of Blacksmith, came to be selected for the lone post of Blacksmith. But, merely because the petitioner continued for a period of near about three months in the post of Blacksmith despite lacking the requisite qualification, the petitioner does not have any indefeasible right to continue in the said post because of his lack of credentials and requisite qualification for the post of Blacksmith. He has further submitted that the projection made on behalf of the appellant that had there been a prior notice, the petitioner could have responded to by representing his case in proper perspective to hold on the post of Blacksmith is misplaced.

¶47

14.1. Mr. Gogoi has referred to a decision of the Hon’ble Supreme Court in Ashok Kumar Sonkar vs. Union of India and others, [2007] 4 SSC 54 , to submit that any prior notice also would not have brought any change to the final conclusion.

¶48

I have given consideration to the submissions advanced by the learned counsel for the parties and have gone through the materials brought on record by the parties through their pleadings.

¶49

Admittedly, the petitioner is in possession of a Trade Certificate for the trade, ‘Electrician’ and does not possess any Trade Certificate for the trade, ‘Black Smithy’ which was the essential qualification for the post of Blacksmith. In the Advertisement, it was clearly mentioned that for the vacancy in the post of Blacksmith, the candidates must possess the essential qualification, that is, ITI Pass Certificate/NCVT Certificate in Black Smithy. It cannot be comprehended that the petitioner, at the time of submission of the

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application, was not aware of the fact that he did not have the essential qualification for filling up the post of Blacksmith.

¶52

In the Admit Card issued to him for appearing in the Written Test for the posts of Blacksmith and Electrician, it was clearly mentioned that the candidates who did not have the minimum educational qualification, need not appear in the Written Test and the candidatures of such candidate who appeared in the examination, would be rejected at any point of time after detection of his ineligibility. It was further mentioned that it was the responsibility of the candidates to furnish all the information correctly and any ineligibility criteria detected at any stage later on shall make him disqualified from the Written Test with all its associated consequences. At the stage of appearing in the Written Test which was common for both the posts of Electrician and Blacksmith, no fault could be attributed to the petitioner as he was also an aspirant for the post of Electrician.

¶53

By the Notice dated 10.05.2023, the petitioner was short-listed along with three other candidates to appear in the Skill Test for Black Smith on 25.04.2023. It is not open for the petitioner to contend that at that point of time, the petitioner was not aware about his ineligibility to fill up the post of Blacksmith and if his ineligibility criteria was going to be detected at a later point of time, then the associated consequences he was likely to be visited with. Yet, the petitioner appeared in the Skill Test for the post of Blacksmith. It might be that the petitioner had performed well in the Skill Test for the post of Blacksmith and also due to omissions or commissions committed by the authorities / persons entrusted with the task of Document Verification, the petitioner also crossed the stage of Document Verification without inviting invalidation of his candidature. It cannot be comprehended that at the said two stages, the petitioner was not aware that he was appearing for the post of Blacksmith without having the requisite qualification. The

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petitioner had kept silence about his short-listing / selection for the post of Electrician for which he stated to have been short-listed after the Written Test. Regarding his non-selection for the post of Electrician, there is no demur from the end of the petitioner till date.

¶56

It is a fact that the recruitment process was initiated and completed for filling up ten nos. of vacancies in the post of Electrician. By the Notice dated 10.05.2023, the names of ten nos. of selected candidates for ten nos. of posts of Electrician were notified. It is the stand of the respondent authorities in the additional affidavit, filed by the respondent no. 3, that all those ten selected candidates were appointed to the posts of Electrician. It is settled law that if a recruitment process is initiated with the publication of an Advertisement indicating the exact nos. of vacancies to be filled up by that recruitment process then it is not open for the recruiting authority to fill up any vacancy beyond the nos. of vacancies advertised. As ten nos. of vacancies in the post of Electrician advertised have been filled up at the end of the recruitment process by the ten nos. of selected candidates notified vide 10.05.2023, there is no leeway for the recruiting / appointing authority to fill up any other vacancy beyond ten. Thus, the contention of the petitioner that he could be accommodated in a post of Electrician for lacking the requisite qualification for the post of Blacksmith cannot be countenanced.

¶57

If a person appointed to a post lacks the qualification to hold the post still his appointment came about, either due to fault of the selection authority or due to any act of omission or commission on the part of the candidate, the appointment of the candidate can be cancelled subsequently. It is pertinent to mention that at the time of joining in the post of Blacksmith advertised in the Advertisement, mentioned above, there was a requirement for the selected candidates to submit an affidavit swearing that if anything is found contrary to the declaration and if the appointing authority is satisfied that

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such finding renders him unsuitable for the service, it will be open for the authority to discharge / remove or dismiss him from the service without arising any reason or divulging the findings. In the Appointment Order dated 25.05.2023, it has been made clear that the appointment would be made subject to the selected candidate’s affirmation and declaration that he satisfies all the qualifying criteria of the post to which he has been appointed. The petitioner has not been able to show that even if it is assumed that there was omission on the part of the appointing authority, he had at any point of time brought the fact of his intelligibility to hold the post of Blacksmith in terms of the Advertisement to the notice of the appointing authority and the appointing authority despite knowing about the petitioner’s ineligibility, had proceeded to appoint him and allowed him to continue.

¶60

In Kamal Nayan Mishra [supra], it has been held that a confirmed Government servant, who is a holder of a civil post, is entitled to the benefits of the safeguards provided by Article 311 of the Constitution of India and such safeguards provided to a Government servant under Article 311 of the Constitution cannot be taken away. The termination of the appellant therein was without any enquiry or hearing. In the given facts and circumstances of case, the Hon’ble Court has held that the information provided by the appellant therein in the attestation form was due to a bonafide impression.

¶61

In Vikash Pratap Singh [supra], irregularities in the selection process / procedure were detected. It has been held to be settled that if the irregularities in evaluation could be noticed and corrected specifically and undeserving selected candidates could be identified and in their place deserving candidates could be included in select list, then no illegality would be said to have crept in the process of re-evaluation. In the said case, the respondent Board identified the irregularities which had crept in the evaluation procedure and corrected the same by employing the method of

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re-evaluation in respect of eight questions, answers to which were incorrect and by deletion of the eight incorrect questions and allotment of their marks on pro-rata basis. It has been observed that such decision cannot be characterized as arbitrary. It has also been observed that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, the Hon’ble Supreme Court has taken a sympathetic view in light of various factors including bonafide of the candidate in such appointment and the length of services of the candidates after such appointment is one of the relevant factors to take such a sympathetic view. The appellants therein had rendered more than three years of service and the Hon’ble Supreme Court taking a view that their termination at that stage would not only impugned upon the economic security of the appellants and their dependents but also adversely affect their careers.

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A decision is an authority for what it decides and not what can logically be deduced therefrom and even a slight distinction in fact or an addition or different fact may make a lot of difference in the decision making process.

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It is true that a prior notice to the petitioner would have been an ideal situation to afford a reasonable opportunity of being heard so that the petitioner could have represented his case and a prior notice would have been in conformity with the principles of natural justice. It is also required to be examined whether in the event of no prior notice, a decision taken for cancellation of the appointment is always to be interfered with. It is not that in all situations non-issuance of a prior notice would entail interference with the impugned order of cancellation of appointment.

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Reverting back to the facts of the case, there might be omissions or commissions on the part of the recruiting authorities during the recruitment process but, the petitioner was well aware all throughout that he lacks the qualification for filling up the post of Blacksmith. Yet, he from the stage of Skill Test onwards unfairly continued his participation in the recruitment process not only till the issuance of the Appointment Order on 25.05.2023 but till the cancellation of his appointment on 30.08.2023. Thus, the case in hand is a case of omission or commission from one side but from both the sides. Fairness is not a one-way street.

¶68

In the given fact situation, it is apt to refer the following observations made in the decision in Ashok Kumar Sonkar [supra] :-

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16. Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible therefor.

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26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing

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27. It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.

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28. A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.

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35. We have noticed hereinbefore that in making appointment of the appellant, the provisions of Articles 14 and 16 of the Constitution and statutory rules were not complied with. The appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke our equity jurisdiction.

¶77

With the petitioner lacking the qualification to hold the post of Blacksmith and there being no vacancy in the post of Electrician beyond ten left to be filled up pursuant to the recruitment process initiated and completed by the afore-mentioned four Advertisements, any prior notice will only be a useless formality and as such, prolonging the matter unnecessarily is not going to serve any purpose as the petitioner is found to have rendered service only for a period of about three and half months in the post of Blacksmith. The petitioner lacked the essential qualification on the cut-off date to hold the post of Blacksmith. It is not the case of the petitioner that he has acquired the essential qualification laid down for the post of Blacksmith in the meantime.

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It is submitted that a part of the salary receivable by the petitioner during his tenure as Blacksmith was deposited in the National Pension System [NPS] Scheme. If the same is required to be withdrawn, the petitioner is at liberty to make application before the competent authority and in case the petitioner’s erstwhile appointing authority is required to render any assistance, the appointing authority shall extend such assistance.

¶80

In the light of the discussions made above and the reasons assigned therein, this Court is of the considered view that no interference is required to be made to the Order dated 30.08.2023. Consequently, the writ petition is found to be unmerited. Therefore, the same is dismissed. There shall, however, be no order as to cost.

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JUDGE

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Rafiqul Islam v. the State of Assam and 3 Ors.

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Rafiqul Islam v. the State of Assam and 3 Ors.

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