Allowed

Shailesh Kumar Sharma v. the Nuclear Power Corpn. and Ors.

Rajasthan HC9 Aug 2018CW/4296/2015

Case brief

AI extract

What is this about?

Petitioner challenged cancellation of his appointment as Scientific Assistant after being selected on merit, arguing the delay in obtaining a No Objection Certificate was not his fault. The high court held the cancellation illegal and directed the respondent to appoint the petitioner with notional benefits.

What did the court decide?

Quashed the communication cancelling the appointment and directed the respondents to appoint the petitioner as Scientific Assistant-C and consider notional benefits.

Shailesh Kumar Sharma Vs the Nuclear Power… — Public Procurement and Tenders | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ No. 4296/2015

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Shailesh Kumar Sharma s/o Shri Om Prakash Sharma, aged about 27 years, R/o New Market, Plot No.16-A, Rawatbhata, District Chittorgarh, Rajasthan 323 305.

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----Petitioner

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Versus

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The Nuclear Power Corporation of India Limited, (A Government of India Enterprise) through its Chairman and Managing Director, 16^th Floor, Centre-1, World Trade Centre, Cuffe Parade, Colaba, Mumbai 400 005.

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The Director, Human Relation (HR), 16^th Floor, Cente-1, World Trade Centre, Cuffe Parade, Colaba, Mumbai – 400 005.

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The Manager, HRM, Nuclear Power Corporation of India Limited, Rawat Bhata, Rajasthan Site, Post Anushakti, Via Kota (Rajasthan) 323 003.

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Deputy Manager, H.R., Nuclear Power Corporation of India Limited, Rawat Bhata, Rajasthan Site, Post- Anushakti, Via Kota (Rajasthan) 323 303.

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----Respondents

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For Petitioner(s) : Mr. Manoj Bhandari For Respondent(s) : Mr. Sanjay Nahar

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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09/08/2018

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The petitioner has preferred this writ petition under Article 226 of the Constitution of India, claiming the following reliefs:

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“i) By an appropriate writ, order or direction, the Communication dated 4^th April, 2015 may kindly be declared illegal and be quashed and set aside and respondents be directed to appoint the petitioner as Scientific Assistant-C in Mechanical Engineering with all consequential benefits.

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ii) In the alternative without prejudice to above, by an appropriate writ, order or direction, the respondents be

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(2 of 7)

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[CW-4296/2015]

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directed to consider the documents submitted by the petitioner at the time of filling up of Special Security Questionnaire and grant him appointment to the post of Scientific Assistant-C in Mechanical Engineering.

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iii) Any other appropriate order or direction, which this Hon’ble Court may deem fit just and proper in the facts and circumstances of he case may kindly be passed in favour of the petitioner.

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iv) Costs of the writ petition may kindly be awarded to the petitioner.”

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Precisely, the facts of this case are that an advertisement No.01/2013 dated 15.5.2013 was issued by the respondent-Corporation, which is a public sector enterprise under the Department of Atomic Energy, Government of India. Vide the said advertisement, the applications were invited, amongst others, for appointment on the post of Scientific Assistant-C in Mechanical Engineering.

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The petitioner having the minimum qualification, applied for the aforesaid post and participated in the recruitment process.

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In the meanwhile, after filling up the application form, the petitioner changed his employment from the post of Technical Assistant in Chambal Fertilizers & Chemical Limited to Junior Engineering Assistant Grade-IV with the Indian Oil Corporation Limited (in short “IOCL”) in the month of June, 2013.

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The petitioner, while participating in the selection process for the post of Scientific Assistant-C in Mechanical Engineering, informed the IOCL vide letter dated 17.11.2014 (Annexure-5) that he required ‘No Objection Certificate’, as he was undergoing the selection process with NPCIL. The IOCL on such letter, permitted the petitioner to go ahead with the selection process for the post in question.

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(3 of 7)

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[CW-4296/2015]

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The petitioner, after being finally selected as Scientific Assistant-C in Mechanical Engineering, was given the offer of appointment therefor vide communication dated 05.12.2014 and the petitioner also submitted a letter to NPCIL on 15.12.2014 narrating the incidence of shifting from his previous Organization to IOCL alongwith the copy of the aforementioned application seeking ‘No Objection Certificate’. However, by a communication dated 04.04.2015, the appointment of the petitioner on the post in question was cancelled on the ground of concealment of fact and for want of a proper ‘No Objection Certificate’ from IOCL. Thereafter, the petitioner submitted a representation dated 15.04.2015 to the respondents, which is Annexure-9 of this writ petition and the same is reproduced as hereunder:

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“1. I have applied for the post of Scientific Assistant-C Mechanical in April 2013 against Advertisement No.RRSite/HRM/01/2013.

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I have applied for the above mentioned post on April, 2013 at that time I was working with CFCL, Gadepan Kota. This vacancy requires experience of 4 years (up to 01.01.2013) which I already completed July 2012. As mentioned in my experience certificate.

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I switched my job from CFCL, Gadepan Kota to IOCL. Mathur on 14 June 2013.

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I received my call letter for above recruitment exam and I cam to know that my exam is going to held on Nov. 23, 2014. At that time I was working with P.S.U. so I applied for the No Objection Certificate (NOC) from my current employer (on date 17 Nov. 2014) that is I.O.C.L. Mathur.

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Due to some rules and regulation and unavailability of issuing authority I did not get NOC up to my Exam date but I have intimated my department before the exam date and received the permission that I am going to appear for above exam, and I have received a forwarded copy of permission for the above exam.

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At the time of interview on Nov. 24, 2014 when my document verification was going on, I asked verifying authority about NOC issue, and produced forwarded copy of application for NOC from IOCL Mathur to them, they told me to verify the only documents which was attached with my application. And because of my whole experience was subjected to a private company (CFCL, Gadepan Kota). The VERIFYING AUTHORITY did not taken forwarded copy of application for NOC from IOCL and told me to attach the NOC with SSQ if I am selected. After verifying the

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(4 of 7)

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[CW-4296/2015]

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complete required experience of 4 years. They send me for interview.

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I have received NOC on Dec 5, 2014.

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I attached IOCL NOC with SSQ and ATTESTATION from. Because Current employer detail and present address was mandatory for verification Process.

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Now I got a letter RRSite/HRM/2015/S379 dated 04.04.2015 that NPCIL RR Site has cancelled my appointment due to submission of NOC from IOCl Mathura.”

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The petitioner therefore, explained the change in circumstances after filling the application form, which led to his becoming an employee of the IOCL, and with due permission of the IOCL, the petitioner participated in the interview for the post in question, while informing the interviewing committee that the ‘No Objection Certificate’ from the IOCL was yet to be issued. However, the petitioner was given ‘No Objection Certificate’ by the IOCL on 05.12.2014, which is on record.

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Learned counsel for the petitioner states that at the time of initiation of the recruitment process, the petitioner had taken permission from the requisite authority i.e. IOCL itself and had also informed the respondents that he was expecting the ‘No Objection Certificate’, which was under process to be issued by the IOCL, Mathura.

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Learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Apex Court in the case of Dolly Chhanda Vs. Chairman, JEE and Ors. reported in (2005) 9 Supreme Court Cases, 779 . The relevant portion of the judgment reads as under:

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“7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be

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(5 of 7)

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[CW-4296/2015]

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established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.

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9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.

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10. The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year.”

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On the other hand, learned counsel for the respondents has vehemently opposed the submissions made on behalf of the petitioner on the ground that the petitioner should have had a valid ‘No Objection Certificate’ issued by the IOCL before coming for the verification of his credentials, as for the purpose of verification of his credentials at the sensitive place, like the respondents, the petitioner should have had taken his ‘No Objection Certificate’ and submitted all the necessary details at the time of recruitment.

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(6 of 7)

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[CW-4296/2015]

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After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that the petitioner had applied for the post of Senior Scientist-C in pursuance of the advertisement dated 15.05.2013, and at that time, he was working as Technical Assistant in the Chambal Fertilizers & Chemicals Limited, which he switched over on being recruited on the post of Junior Engineering Assistant Grade-IV with the IOCL in June, 2013.

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Admittedly, the petitioner had sought permission of IOCL while processing his ‘No Objection Certificate’ from IOCL for participating in the recruitment process initiated by the NPCIL for the post in question. The said information given by the petitioner to IOCL is on record as Annexure-5. The ‘No Objection Certificate’ thereafter, was issued on 05.12.2014 by the IOCL, whereas the petitioner’s appointment was cancelled by the respondents vide communication dated 04.04.2015, even when he otherwise stood selected, on the ground of the petitioner not having the valid ‘No Objection Certificate’ from the IOCL at the time of verification of his documents.

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This Court finds that the petitioner is a meritorious candidate and duly selected by the NPCIL for the post of Scientific Assistant-C in Mechanical Engineering in pursuance of the advertisement dated 15.05.2013, as his name found place in the select list, after undergoing the selection process, on merit and issuance of the ‘No Objection Certificate’ was in process. Therefore, any belated grant of ‘No Objection Certificate’ by the IOCL would not deprive the petitioner from his right to be appointed on the post in question, particularly, in light of the fact

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(7 of 7)

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[CW-4296/2015]

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that the petitioner has narrated the complete facts in his representation, which has been reproduced hereinabove, while explaining in detail as to how he was pursuing his ‘No Objection Certificate’ with the IOCL well within the time during the recruitment, but while the same being under process, he was participating in the recruitment process in question with the due permission of the IOCL.

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This Court also finds that the NPCIL should have liberally considered this technicality, as it was not the petitioner’s fault that he could not obtain the ‘No Objection Certificate’ from the IOCL in time.

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For the aforesaid reasons, the present writ petition is allowed and while quashing and setting aside the communication dated 04.04.2015, the respondents are directed to appoint the petitioner on the post of Scientific Assistant-C in Mechanical Engineering. This Court, while noticing that one post of Scientific Assistant-C in Mechanical Engineering has been kept vacant on account of the interim order passed by this Hon’ble Court on an earlier occasion, also directs that the case of the petitioner for grant of notional benefits to be considered accordingly.

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(DR.PUSHPENDRA SINGH BHATI),J

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/zeeshan/

Shailesh Kumar Sharma v. the Nuclear Power Corpn. and Ors.

Case brief

What is this about?

What did the court decide?

Shailesh Kumar Sharma v. the Nuclear Power Corpn. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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