1- Challenging the orders Annexure P/15 and P/17 issued by respondent No.1 on 21.10.09 and 23.10.09 respectively, withdrawing the offer of appointment issued to the petitioner on the post of Professor in the School of Architecture, Bhopal, petitioner has filed this writ petition.
2- Petitioner claims to be a duly qualified person and working as a Professor in the Department of Architecture and Planning, in Maulana Azad National Institute of Technology, Bhopal (hereinafter referred to as 'MANIT'). It is stated that he has worked in this Institute for the last twenty years. It is further the case of the petitioner that for the purpose of setting up an Autonomous School of Higher Education in the Faculty of Planning and Agriculture in the State of Madhya Pradesh, Government of India established a School of Architecture respondent No.1, in the State of MP, with its Headquarter at Bhopal in the form of a Society registered under the M.P. Societies Registrikaran Adhiniyam, 1973. That is how, respondent No.1 came into existence by virtue of the Registration made vide Annexure P/1 on 7.10.08. It is stated that both MANIT and the School of Architecture and Planning, Bhopal, are managed and controlled by the Government of India. Vide order-dated 1.8.08 Annexure P/2, Government of India approved creation of various faculty and non-faculty posts in the School of Architecture, Bhopal. One of the posts so created was a post of Professor in the pay scale 16400-450-22400. The essential qualification and other conditions were also prescribed and accordingly an advertisement Annexure P/3 was issued on 3.3.09, calling for applications from deserving candidates for appointment to the said post i.e Professor of Architecture. Petitioner, who was also qualified and was eligible for appointment submitted his candidature, the same was accepted and vide communication dated 29.6.09 Annexure P/4 he was called to participate in the process of selection and interview. Thereafter, vide communication dated 2.7.09 Annexure P/5, petitioner was informed by the Director of the School respondent No.1, that the Selection Committee having recommended his appointment and after due approval of the Chairman and the Board of Governors, the petitioner has been selected for appointment on the post of Professor in Architecture in the pre-revised pay scale of 16400-450-22400. Various other conditions were stipulated in the said offer. According to the petitioner, he accepted the offer and vide communication Annexure P/6 on 2.7.09, informed respondent No.1 that he will apply to the Director of his Institute, namely MANIT, for relieving him for joining in the respondent No.1's school. Thereafter, vide Annexure P/7 on 3.7.09 petitioner applied to MANIT for relieving him so that he can join on the post of Professor in the School of Planning and Architecture, Bhopal. Thereafter, the Incharge Registrar of MANIT, Bhopal sought various documents and information from the petitioner, vide Annexure P/8, petitioner clarified the position and ultimately when the petitioner was not given the relieving order, it is stated that vide Annexure P/9 on 7.7.09 petitioner sought for his relieving and in the alternative submitted his offer for Voluntary Retirement in accordance to the provisions of Rule 48-A of the Central Civil Services Pension Rules, 1972 (hereinafter referred to as 'Rules of 1972'), which is applicable to him and informed the MANIT authorities that he would stand retired after completing a period of three months i.e on 7.10.09. It is stated that in the application petitioner also sought for relaxing the statutory notice period of three months to enable him to join the School of Planning and Architecture immediately by virtue of the powers conferred on the competent authority under Rule 48 of the Rules of 1972. Annexure P/10 is another communication made by the petitioner on 15.7.09 seeking his relieving. According to the petitioner despite his best efforts and submitting application for Voluntary Retirement, neither was the Management of MANIT relieving the petitioner for joining duties nor were they accepting his offer for Voluntary Retirement. In the meanwhile, the notice period for retirement was to expire on 7.10.09, petitioner suffered dengue fever, and was admitted to the Hospital from where he was discharged on 21.10.09. He immediately approached the School of respondent No.1 on 21.10.09 alongwith his joining letter and Attestation Form Annexure P/14. Instead of permitting the petitioner to join in pursuance to the offer submitted by him on 21.10.09, he was not permitted to join, instead communication dated 21.10.09 was issued to him and it was intimated that as he has not submitted a proper relieving from MANIT, he cannot be permitted to join. Petitioner pleaded for extension and finally when he was not receiving cooperation he submitted an application Annexure P/16 on 21.10.09 and in an arbitrary and illegal manner at 5.30 on 23.11.09, the impugned order-dated 23.10.09 Annexure P/17 was issued, which was received by the petitioner on 26.10.09. He submitted a representation on 26.10.09 vide Annexure P/16 and sought for reconsideration of the matter. Thereafter, various communications took place and finally when nothing was done, petitioner filed this writ petition.
3- Shri Ajay Mishra, learned Senior Advocate appearing for the petitioner, taking me through the voluminous documents filed in the writ petition so also the rejoinder and by taking me through the provisions of section 48(1), 48-A and the proviso to sub-rule (2) of Rule 48-A, argued that when the application for voluntary retirement submitted by the petitioner was not accepted within the period of three months, then by operation of law and by virtue of the statutory provision, as is contained in the proviso to sub-rule (2) to Rule 48-A, petitioner stood retired from the service of MANIT on 7.10.09 and after 7.10.09 it was not at all necessary for the petitioner to submit any relieving or any further letter or NOC from the Management of MANIT. It is stated that he is deemed to have retired from the service of MANIT on 7.10.09 by operation of law and, therefore, the insistence by respondent No.1 in seeking a proper relieving letter from the Management of MANIT was totally uncalled for and not at all necessary, after 7.10.2009.
4- It was emphasized by learned Senior Advocate that the relieving and other documents of relinquishing service by the petitioner from MANIT would be necessary only if he was an employee of MANIT when he reported for joining. It is stated that on 21.10.09 when the petitioner reported to respondent No.1 for joining and submitted his joining vide Annexure P/14, he was no more an employee of MANIT and, therefore, the action of the respondents in insisting upon submitting a proper relieving letter is totally uncalled for. It was emphasized that by virtue of operation of the statutory provision as contemplated in the Rules of 1972, petitioner stood automatically relieved from the service of MANIT with effect from 7.10.09 and, therefore, it was not necessary for him to submit any relieving order on 21.10.09 when he appeared alongwith his joining Annexure P/14. Accordingly, it was the contention of the petitioner that he is deemed to have retired from services of MANIT on 7.10.09 and now the respondents cannot insist upon submission of any document pertaining to his relieving. That apart, Shri Ajay Mishra, learned Senior Advocate, took me through various documents available on record and tried to emphasize that in this case the petitioner is being refused permission to join on the selected post of Professor of Architecture by the School of Planning and Architecture, Bhopal only on the ground that while petitioner was in service of MANIT, Bhopal certain enquiries and criminal case were pending against him. Taking me through the documents and material in this regard filed by the petitioner alongwith the petition and the rejoinder, Shri Ajay Mishra, learned Senior Advocate, tried to emphasize that the allegations in this regard levelled against the petitioner are all false, baseless and are unsustainable. It is argued by him that in the criminal case registered prima facie finding recorded is that they are false and, therefore, in a matter pending before this Court under section 482 CrPC, the proceedings have been stayed. That apart, it is stated that the allegations levelled against the petitioner in the return filed by respondents 1 and 2 are incorrect, false and on the basis of the same joining of the petitioner cannot be denied. Even though Shri Ajay Mishra, learned Senior Advocate, during the course of hearing has referred to various documents in this regard, the same will be considered and referred to, if necessary in this order, as and when they are required.
5- In sum and substance, the contentions advanced by Shri Ajay Mishra, learned Senior Advocate, is two folded:
(i) His first contention was to the effect that once the retirement of the petitioner came into force with effect from 7.10.09 and he stood retired from the services of MANIT by virtue of the statutory deeming provision contemplated under Rule 48-A of the Rules of 1972, there was no necessity for submitting any relieving letter from the Management of MANIT, and the action of the respondents in refusing joining to the petitioner only on the ground that he has not been properly relieved, is unsustainable.
(ii) His second limb of argument is that the petitioner having retired from the services of MANIT on 7.10.09 without any enquiry being conducted against him, without any punishment being imposed and when the allegations put forth by respondents 1 and 2 against the petitioner with regard to his services in MANIT are false and fabricated and on the aforesaid grounds the Management of MANIT cannot refuse joining to the petitioner
6- In support of his contention, Shri Ajay Mishra, learned Senior Advocate, has placed reliance on the following judgments: R.L. Arora v. The State of UP and others, AIR 1962 SC 764; M/s Hochtief Gammon v. State of Orissa and others, AIR 1975 SC 2226; Commissioner of Income-tax, Bombay and others v. Mahindra and Mahindra Limited and others, AIR 1984 SC 1182; Rajbir Singh Gill v. State of Punjab and another 1999 (7) SLR 422; and, Tekchand v. Dile Ram, 2001(3) SCC 290.
7- Referring to the aforesaid judgments and the deemed retirement of the petitioner after expiry of the period of three months and the decision of the Board of Governors of respondent No.1's Institute as contained in Annexure R/7 dated 7.10.09, with regard to treating the petitioner to be voluntarily retired, it is argued that now respondent No.1 cannot insist upon submission of any joining report. Further reference is also made to the judgment: Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, to contend that in the original communication made to the petitioner vide Annexures P/15 and P/16, respondents have only stated that the petitioner did not submit a proper relieving from the Management of MANIT and, therefore, he cannot be permitted to join. Now, in this petition respondent No.1 is substantiating its contention by giving various other reasons with regard to conduct of the petitioner while working in MANIT. It is argued that a bad order issued vide Annexures P/15 and P/17 cannot be made good by substituting reasons now in this petition, which is by way of an after thought. Accordingly, learned Senior Advocate submits that the action of the respondents is unsustainable and is, therefore, liable to be rejected.
8- Shri R.N. Singh, learned Senior Advocate, appearing for the respondents, took me through the documents filed by the petitioner, the respondents, the pleadings of respondent No.1, particularly from paragraphs 10 to 17 and by referring to the communications made by the then Director of MANIT on 21.11.08, forwarding the application of the petitioner, submitted that initially one Shri K.S. Pandey was the Director of MANIT. When the advertisement was issued and the petitioner submitted his application, the same was forwarded by the Management of MANIT through this Director vide Annexure R/2, filed by respondent No.1, on 21.11.08. In the said communication while forwarding the application of the petitioner, the then Director Shri K.S. Pandey intimated to the Director, School of Planning and Architecture that in case the petitioner is selected, he will be relieved for joining the respondent No.1's Institute on deputation as per the Institute's norms.
9- Shri R.N. Singh, learned Senior Advocate, referring to the statutory provisions with regard to relieving and joining of an employee from the service of MANIT i.e Statute No.24 of the NITP Annexure R-3/1 and by referring to the proforma contained in Schedule D to Statute 24(7), pertaining to forwarding of application for employment, emphasized that the application of the petitioner apart from being forwarded to be appointed on deputation did not meet the requirement of the statutory provisions as indicated hereinabove, in as much as comments with regard to conduct and working of the petitioner in MANIT, which was required to be disclosed alongwith the application as per the statutory Schedule D, was not intimated. Learned Senior Advocate submitted that the forwarding itself was contrary to the statutory provisions and illegal and various factors, which should have been brought to the notice of respondent No.1 were not brought on record. It was argued by Shri R.N. Singh, learned Senior Advocate, that even if it is assumed that by operation of the provisions of Rule 43-A of the Rules of 1972, the voluntary retirement of the petitioner is accepted, even then if the past antecedents and the conduct of the petitioner with his previous employer was not satisfactory, respondent No.1 can refuse joining to the petitioner. It was emphasized by him that insistence on submitting a joining or proper relieving letter from the previous employer was for the purpose of ascertaining the previous conduct of the petitioner and to ensure that he had an unblemished service with the previous employer and is fit to join duties with the new employer. By taking me through the overwhelming documents available on record, a report pertaining to enquiry conducted by one Mr. M.R. Buch, a retired IAS Officer of the State, the allegations found proved against the petitioner and various other factors with regard to registration of a criminal case against the petitioner, conduct of enquiry, writ petition filed by him challenging the action of MANIT, in finding him to be illegally appointed and reverting him and the criminal cases pending against him, argued that in the attestation form submitted by the petitioner vide Annexure R/13, petitioner did not disclose all these factors and, therefore, he was rightly denied joining by the Management of the School of Planning and Architecture, Bhopal.
10- Shri R.N. Singh, learned Senior Advocate, referring to various letters in this regard, available on record particularly the communication made by the Director of MANIT to the School of Planning and Architecture respondent No.1, as contained in Annexure R/6 dated 1.9.09, submitted that the then Director Dr. K.S. Pandey had illegally forwarded the application of the petitioner vide Annexure R/2, on 21.11.08, without disclosing the fact about pendency of large number of cases against him and the particulars as are contained in Annexure R/6, and pointed out that in two enquiries conducted into the matter one by Shri M.N. Buch and another on an enquiry headed by Shri S.M. Shukla, various irregularities committed by the petitioner came into light. Referring to the enquiry reports filed in this regard as contained in Annexure R-3/15, Shri R.N. Singh, learned Senior Advocate, tried to emphasize that due to the aforesaid serious allegations, the petitioner is not entitled to seek appointment with respondent No.1 and respondent No.1 can refuse appointment to the petitioner. In this regard, he referred to the averments made by respondent No.1 in paragraphs 11, 12, 13 and 14 of the reply, which reads as under:
"11. That on 21.10.2009, the petitioner in person appeared before the Respondent No.2 and submitted letter dated 21.10.2009 alongwith the attestation form, informing that the petitioner has applied for voluntary retirement in the parent institute on 7.7.2009 and as per the rules he stood retired w.e.f 7.10.2009. The petitioner also submitted that as he was suffering from acute dengue fever, he could not submit the attestation form on 9.10.2009. Copy of the letter dated 21.10.2009 alongwith the attestation form submitted by the petitioner is annexed herewith as Annexure R/9.
12. It is pertinent to mention here that it is vide letter dated 21.10.2009, the answering respondent for the first time were acknowledged by the petitioner that he is joining the institute as permanent faculty member, however, the forwarding letter of the Director, MANIT and further communication with the petitioner before the letter dated 21.10.2009 written by the petitioner, clearly depicts a picture that the petitioner was supposed to join the institute on deputation after submitting a letter of relieving from the parent institute as it has been done by the institute in case of Dr. Manmohan Kapshe and various other employees.
Needless to emphasis, there was no reason with the answering respondent to give a differential treatment to the petitioner, particularly when the offer of appointment to the petitioner itself elapsed. It is worthwhile to mention here that the petitioner has submitted that he was suffering from acute dengue fever and was discharged from the hospital on 22.10.2009, however, prior to his discharge the petitioner appeared before the Respondent No.2 on 21.10.2009 itself, thus the character of the petitioner is clearly ascertainable from his misdeeds. Copy of the relieving letter dated 12.10.2009 and the appointment letter dated 20.10.2009 of Dr. Manmohan Kapshe are annexed herewith as Annexure R/10 and R/11.
13. That before the answering respondent could have scrutinized the application and the attestation form, the petitioner again appeared in person before the Respondent No.2 on 21.10.2009 itself in the evening hours and requested in writing to withdraw and joining letter with a request to treat them cancelled. Resultantly, the respondent returned the application and other original documents of the petitioner on 21.10.2009 itself. However, the aforesaid fact has deliberately been suppressed by the petitioner for the reasons best known to him. Copy of the letter dated 21.10.2009 written by the petitioner is annexed herewith as Annexure R/12.
14. That, bare perusal of the attestation form submitted by the petitioner (filed alongwith Annexure R/13) will reveal that the petitioner has suppressed the material fact in the attestation form that the petitioner is in litigation with his parent institute and as such the appointment of the petitioner as Assistant Professor and promotion as Professor in the MANIT, Bhopal is subject matter of Writ Petition No.7382/2008 and Writ Petition No.8573/2008 pending adjudication before this Hon'ble Court and decision as such in any petition will disqualify the petitioner from appointment as Professor in the establishment of the answering respondent. Copy of the attestation form submitted by the petitioner is annexed herewith as Annexure R/13."
(Emphasis supplied)
11- It was further argued by Shri R.N. Singh, learned Senior Advocate, that as far as respondent No.1 is concerned, before appointinga person, respondent No.1 is entitled to verify the antecedents of the person to be appointed and when the overwhelming material that came against the petitioner indicated his unsuitableness, respondents have taken a decision to withdraw the offer of appointment. Referring to Annexure P/16 itself filed by the petitioner, withdrawing his joining, submitted on 21.10.09, learned Senior Advocate, argued that the petitioner himself having withdrawn the original joining alongwith all original documents, petitioner is now estopped from seeking permission to join with respondent No.1 and challenge the action of respondent No.1 in withdrawing the offer of appointment.
12- Referring to the order passed by this Court on 13.1.2009, Shri R.N. Singh, learned Senior Advocate, submitted that initially when this writ petition was filed, only respondent No.1 The School of Planning and Architecture, was impleaded as a party and the Management of MANIT was not impleaded as a party. However, after the hearing on 13.1.2010, this Court wanted to consider three aspects of the matter, namely: the manner in which the application of the petitioner was forwarded by MANIT to respondent No.1; the manner in which his application for voluntary retirement was dealt with by MANIT; and, the particulars with regard to cases, if any, pending against the petitioner while he was working in MANIT. To get clarification about these three questions, it is stated by Shri R.N. Singh, learned Senior Advocate, that on 13.1.2010, this Court directed the petitioner to implead MANIT respondent No.2, as a party and that is how at the instance of this Court, petitioner impleaded MANIT as a party and from the reply filed by MANIT, it is seen that they have clearly pointed out that the application of the petitioner Annexure R/2 dated 21.11.08 was forwarded without following the procedure contemplated under Statute 24 and Shri K.S. Pandey having suppressed material facts to help the petitioner and the petitioner also having suppressed these facts while submitting the attestation form, it is stated that the petitioner cannot claim any benefit. It is also pointed out by Shri R.N. Singh that alongwith the petition for appointment to various other post, applications of certain other employees were also forwarded for appointment on deputation. By bringing on record the forwarding memorandum with regard to one Dr. Manohar Kapse and the relieving order issued in his case, permitting him to join duties in the School of Planning and Architecture on deputation vide Annexures R/10 and R/11, Shri R.N. Singh emphasized that respondent No.1 are right in denying appointment to the petitioner on the ground that his antecedents with the previous employer was not satisfactory, he has suppressed material facts from the Management of respondent No.1, while submitting his application, getting it forwarded alongwith Shri Manohar Kapse, and finally while submitting the attestation form as is evident from Annexure R/13. Referring to Annexure R/13, the attestation form filed by the petitioner and the warnings contained therein with regard to suppression of material facts, arrest of the petitioner in a criminal case, pendency of the criminal case and various other factors, Shri R.N. Singh emphasized that no relief can be granted to the petitioner.
13- In support of his contention to the effect that without producing a discharge certificate, an employee cannot be permitted to join services, Shri R.N. Singh, learned Senior Advocate, invited my attention to the principles laid down in the cases of: Kendriya Vidyalaya Sangathan and others v. Ram Ratan Yadav, 2003(3) SCC 432; A.P. Public Service Commission v. Koneti Venkateswarulu and others, 2005(7) SCC 177. That apart, learned Senior Advocate also invited my attention to a judgment of the Supreme Court in the case of Central Provident Fund Commissioner and others v. Ashok Dubey and others, 1992 (2) SCC 196, to justify the action of the respondents in not permitting the petitioner to join duties. Accordingly, Shri R.N. Singh, learned Senior Advocate, tried to justify the action of the respondents and submitted that the petition is liable to be dismissed.
14- By way of a rejoinder and arguments Shri Ajay Mishra, learned Senior Advocate, again referred to various documents available on record, particularly the reports of the enquiry conducted, the manner in which the enquiries were conducted, the criminal case filed against the petitioner, the facts that these are filed only to victimize and harass the petitioner, they are not correct, tried to emphasize that the allegations levelled against the petitioner and the material submitted by respondent No.2 are not correct and on the basis of the same petitioner cannot be denied joining.
15- It was further argued by Shri Ajay Mishra, learned Senior Advocate, that the respondents while considering the matter after the communication was made by the New Director Shri R.P. Singh, with regard to the antecedents of the petitioner, an agenda was prepared and the entire matter was placed for considering the additional agenda Annexure R/7, in the meeting of Board of Directors of School of Planning and Architecture, Bhopal, which was held on 17.7.09. In the said meeting, even though the Board was aware of the complaints against the petitioner, but did not take any action, instead extended the time to submit the joining after following the provisions of the CCA Rules. In view of the above, it was argued by learned Senior Advocate that the Board of Directors in this meeting having already ignored and condoned the earlier conduct of the petitioner, now on the same ground appointment cannot be refused to the petitioner. That apart, he submitted that the provisions of Statute 24(7) and Schedule D will not apply as it was brought into force after the forwarding of petitioner's application was done, vide Annexure R/2 on 21.11.08. Accordingly, on the aforesaid ground Shri Ajay Mishra, learned Senior Advocate, seeks for interference into the matter.
16- I have heard learned counsel for the parties at length and perused the records.
17- As far as the question with regard to the deemed retirement of the petitioner from the services of MANIT with effect from 7.10.09 and the implication of the proviso to sub-rule (2) of Rule 43-A is concerned, there is no dispute in accepting the proposition put forth by Shri Ajay Mishra, learned Senior Advocate for the petitioner, to the effect that the petitioner stood relieved on 7.10.09 and on that date he ceased to be an employee of MANIT. However, the question that requires consideration by this Court is that even on such relinquishment of appointment by the petitioner with his previous employer, can the prospective employer still insist upon producing a relieving order; what is the relevancy of such a relieving order; and, whether the act of respondent No.1 in withdrawing the offer of appointment in the facts and circumstances is warranted or not?
18- During the course of hearing of this writ petition, Shri Ajay Mishra, learned Senior Advocate, took me through the documents available on record and had tried to emphasize that the allegations levelled against the petitioner are not correct and on the basis of the same he cannot refuse permission to join. That being so, it is thought appropriate at this stage to refer to these allegations as they may have some bearing with regard to the act of respondent No.1.
19- It is an admitted fact that when the application of the petitioner was forwarded by Dr. K.S. Pandey vide Annexure R/2, on 21.11.08, it was so mentioned by him in the forwarding memo "In case he is selected, he will be relieved on deputation as per Institute's norms". However, while forwarding the application in this manner, the requirement of National Institute of Technology Act, 2007 and the provisions of Statute 24(7), contained in Schedule D i.e Annexure R- 3/1 is not followed. This Statutory provision contemplates that an application of an employee whose conduct is under investigation may be forwarded for employment. However, it has to be done with a brief comment on the nature of allegations and with a 'note' that he would not be relieved if he is placed under suspension or charge-sheeted. The forwarding note Annexure R/2 submitted in the case of the petitioner was not in accordance to the statutory requirement. As far as applicability of Statute 24(7) and non-communication of the past antecedents of the petitioner by Shri K.S. Pandey is concerned, the argument of the respondents in this regard cannot be accepted, for the simple reason that the statutory provision came into force after the application of the petitioner was forwarded by Shri K.S. Pandey on 21.11.08 and, therefore, on the ground that Shri K.S. Pandey did not follow the statutory provisions of Statute 24(7), no fault can be found in the forwarding of the petitioner's application by Shri K.S. Pandey. However, as the forwarding was with regard to relieving the petitioner on deputation in case of his appointment, Shri K.S. Pandey should have informed the management of respondent No.1 about the pendency of the various enquiries against the petitioner. However, records indicate that against Shri K.S. Pandey also serious allegations were levelled as is evident from Annexure R-3/2 onwards and finally the documents filed by respondent No.2 indicates that the services of Shri K.S. Pandey have been terminated.
20- After termination of service of Shri K.S. Pandey when a new Director Shri R.P. Singh took charge and when the petitioner was informed about his offer of appointment, he applied to the Management of MANIT to relieve him for joining on the offered post. When these facts were brought on record, the Director concerned found that the application of the petitioner for appointment on the post of Professor or Architecture in respondent No.1's Institute was forwarded by Shri K.S. Pandey ignoring the norms as contained in Statute 24(7), Schedule D and, therefore, the said Director vide Annexure R/6 on 1.9.09 informed respondent No.1 about the enquiries being conducted against the petitioner, the reports submitted by Shri M.N. Buch, Shri S.M. Shukla - the allegations against the petitioner as are contained in this communication. The allegation pertaining to the irregular appointment of the petitioner himself contrary to the Rules and his reversion to the post of Assistant Professor and the challenge made to the same and the writ petitions in this regard, pending before this Court. Further irregularities committed in the matter of revision of pay scale, misuse of the office of the Administrative Dean by the petitioner, illegal benefits conferred to his brother by appointing him in MANIT, registration of criminal case against the petitioner, his arrest by the police authorities on 7.1.09, registration of a case against him for offence under sections 507, 120, 420, 467, 469, 471/34 of the IPC read with various provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989; his release on bail on 15.1.2009, filing of the challan and the application filed by him for quashing of the proceedings. The Director brought to the notice of respondent No.1 all these factors and after these factors were brought to the notice on 9.9.09, the Management of Respondent No.1 directed the petitioner that he should submit his joining alongwith an appropriate relieving letter on or before 23.10.09 otherwise the offer would be cancelled.
21- If the impugned orders Annexures P/15 and P/17 are taken note of, it would be seen that in Annexure P/15 dated 21.10.09, petitioner was informed that he has not submitted his joining alongwith the relieving letter from the present employer and in the board meeting of the School of Planning and Architecture held on 17.7.09, it was resolved that the joining can be permitted only if the CCA Rules are violated. Even though respondents took note of the fact that the petitioner is deemed to have retired, but on 21.10.09 and 23.10.09 they were still insisting upon submitting a proper relieving from the previous employer. Petitioner wants this Court to hold that the allegations levelled against the petitioner by the Management of MANIT are incorrect and false and as respondent No.1 has refused joining to the petitioner only because he did not submit a proper joining and as the joining was not necessary now, in view of the automatic deemed retirement of the petitioner by operation of law with effect from 7.10.09, the action is liable to be quashed. As far as the contentions canvassed by Shri Ajay Mishra, learned Senior Advocate, with regard to condonation of the conduct of the petitioner by the Board of Directors of the School of Planning and Architecture, in its meeting held on 17.7.09 is concerned, this Court is unable to accept the aforesaid contention of the learned Senior Advocate. Even though the Board in its meeting, held on 17.7.09, directed for extending the time for joining, the Board still insisted upon a proper relieving of the petitioner from MANIT. This was because of two reasons: the first being that the application of the petitioner was forwarded with a condition that he shall join the appointed post on deputation; and, the second was because of the reason that the petitioner would be permitted to join only if he is properly relieved, meaning thereby that the Management of School of Planning and Architecture were willing to permit the petitioner to join duties provided he is relieved by the Management of MANIT, by exonerating him of all the charges levelled against him and issuing him a proper relieving letter, or on deputation as is done in the case of Dr. Manmohan Kapshe. The decision of the Board in its meeting held on 17.7.09 is to the effect that petitioner should join alongwith a proper relieving letter meaning thereby that the Management of School of Planning and Architecture has no objection if the petitioner is relieved by the Management of MANIT, if he is exonerated of the allegations levelled against him and is given a clean chit or is sent on deputation. The insistence upon petitioner's joining alongwith a relieving letter is only to ensure that the MANIT Management gives a clean chit to the petitioner, after exonerating him of the charges pending against him in their Institute. Merely because the Board of Directors in its meeting held on 17.7.09 did not cancel the appointment of the petitioner or withdrew it after coming to know about complaints against the petitioner, it cannot be construed that the Board had condoned all the past acts of the petitioner while in employment with MANIT. The Board seems to be of the view that they can permit the petitioner and others to join, if they are properly relieved and come with a properly relieving order or a NOC from the erstwhile employer. Accordingly, the contention of Shri Ajay Mishra, learned Senior Advocate, to the effect that the Board of Directors of the School of Planning and Architecture, had exonerated the petitioner of his past conduct cannot be accepted.
22- Under normal circumstances when an employment is offered to a person, he is directed to submit a proper relieving from his previous employer in order to ensure that his lien on the post held with the previous employer is terminated and he is appointed after relinquishing his previous employment or he is on deputation. That apart, an employee who was already in service with one employer and when he seeks appointment with a new employer, the new employer has a right to ensure that the person being appointed has an unblemished service record, his employment with the previous employer was clean and he is a fit person to be appointed. An employer before appointing a person to a post should have confidence in the employee and if this confidence is not existing, the employer has a right to refuse appointment to such a person, whose employment with the previous employer is a tainted one. In this regard, it may be appropriate to take note of certain observations and principles laid down by the Supreme Court in the case of Dr. H.Mukherjee v. Union of India and others, 1994 (Supp) 1 SCC 250. In this case, a candidate selected for appointment by UPSC and who was issued with an offer of appointment, with a stipulation for joining within a particular period of time, was refused joining when subsequently it came to the notice of the employer that a CBI Enquiry was initiated against him. In this case also, the Union of India, the employer, was not aware of the pendency of the enquiry against Dr. H. Mukherjee, the person concerned, and when it came to its knowledge, it withdrew the offer of appointment. After considering the factual aspects of the matter, in paragraph 4, the question for determination was laid down by the Supreme Court in the following manner:
"4. In view of the above, the short question which arises for consideration is whether the Tribunal was justified in taking the view that events subsequent to the recommendation made by the UPSC could not be taken into consideration for deciding whether or not the candidate recommended was suitable for appointment and whether the omission on the part of the ACC to state the reason for departing from the recommendations of the UPSC was fatal and vitiated the decision."
(Emphasis supplied)
Thereafter, various judgments of the Supreme Court were considered and after taking note of the provisions of Article 323 of the Constitution and the powers of the UPSC for making a recommendation and the effect of such recommendation being rejected by the Government, it has been held by the Supreme Court that in view of the fact that a recommendation of the UPSC is not binding and by taking into consideration developments subsequent to the selection, appointment can be refused or rejected. In paragraph 8, the matter has been so dealt with by the Supreme Court:
"8. . There is nothing in that article or in the rules to suggest that the Government cannot take into consideration the developments subsequent to the selection made by the UPSC. Such a view would not be in public interest and may lead to serious complications if the Government is enjoined to make the appointment
notwithstanding certain serious matters having come to its notice subsequent to the recommendation made by the Commission. Counsel for Respondent 1, however, submitted that a line of demarcation must be drawn somewhere because the Government cannot be allowed to delay its decision till adverse circumstances appear against the candidate recommended for appointment. He submitted that this demarcation must coincide with the date on which the recommendation is made by the Commission and at any rate must be confined to a reasonable period subsequent thereto. We are afraid no hard and fast line can be drawn in this connection. Besides, in the instance case we do not find as a fact that the Government has deliberately delayed its decision. .." (Emphasis supplied)
Thereafter, taking note of certain judgments of the Supreme Court in paragraph 9, with regard to the binding effect of Article 323 of the Constitution with regard to advice of the UPSC. It was held by the Supreme Court in paragraph 9:
"9. . This decision is not an authority for the proposition that the Government must make an order disapproving the list along with the reasons therefore and convey the same to the High Court or the Commission. All that it says is that the Government must record its reasons for the disapproval on the file and if its action is questioned in court it must disclose the same to the court if called upon to do so. That requirement has been satisfied in the present case. The Tribunal, however, wrongly thought that subsequent events could not be taken into consideration and that is why it directed the ACC to reconsider its decision without noticing the adverse entry as well as the contents of the CBI Report. In fact to satisfy ourselves we perused the file and found that the reason for disapproval was stated on the file. The subsequent decision turned on its own facts as the Court came to the conclusion that the material placed before the Court did not justify Government's refusal to make the appointment. Therefore, neither of the two decisions on which reliance is placed come to the rescue of respondent 1. It seems well settled that the function of the Public Service Commission being advisory, the Government may for valid reasons to be recorded on the file, disapprove of the advice or recommendation tendered by the Commission, which decision can, if at all, be tested on the limited ground of it being thoroughly arbitrary, mala fide or capricious."
(Emphasis supplied)
If the aforesaid judgment is scanned, it would be seen that if the subsequent material brought to the notice of the Government indicates that the employee is unsuitable for appointment, the offer of appointment can be withdrawn.
23- Again, in the case of Union of India v. Rati Pal Saroj and another, 1998(2) SCC 574, the employee concerned was offered appointment in the IAS Cadre, but before he could join as Probationer, a CBI case was registered against him with regard to abuse of official position in the previous employment. In view of the above, the offer of appointment was withdrawn. The withdrawal was challenged on somewhat similar grounds and also on the ground of violation of principles of natural justice and various other aspects. The matter was considered by the Supreme Court in paragraph 11:
"11. In the present case looking to the facts and circumstances it was not necessary to give a hearing to the respondent. It is argued that the withdrawal of appointment was on account of the FIR filed against the respondent and, therefore, the respondent should have been heard and given an opportunity to present his case before withdrawing his appointment. Or his appointment should be kept in abeyance till he is found guilty or acquitted. The earlier correspondence, however, shows that the respondent was unable to join as a probationer on the due date because he was not being relieved from his post. The Central Government thereafter learnt why the respondent was not being relieved from his post. If thereafter it came to a conclusion that the respondent was not a suitable person, or that it was not possible to wait for a long period for the respondent to join, it would be entitled to withdraw the appointment. Indian Administrative Service is a premier administrative service of the Central Government. All those who are members of the Indian Administrative Service are called upon to discharge heavy responsibilities which require on the part of an incumbent to the post the highest degree of probity, rectitude and an impeccable character. If in the facts and circumstance of the present case the Central Government decided that the respondent was unsuitable to be given a post in the Indian Administrative Service, the question cannot be faulted. The impugned letter merely withdraws the offer of appointment. It casts no stigma. So long as the decision is taken bona fide on relevant facts and in the interests of the Service it cannot be faulted." (Emphasis supplied)
In the aforesaid case also, looking to the nature of appointment and the conduct of the person to be appointed, the Supreme Court has held that the offer of appointment can be withdrawn. In the present case also, somewhat similar scenario exist.
24- In the present case, petitioner's appointment with respondent No.1 is cancelled and the offer of appointment withdrawn due to various factors, which came to the knowledge of respondent No.1, as is evident from the narration of facts made hereinabove.
25- Contention of the petitioner is that respondents have cancelled the offer of appointment only because petitioner did not produce an appropriate relieving order from his previous employer respondent No.2. It is the case of the petitioner that a relieving order from the previous employer is not necessary by virtue of the fact that petitioner had tendered his voluntary retirement from his previous employer in accordance to Rule 48(2) on 7.7.2009 and by operation of law i.e the proviso to sub-clause (2) of Rule 42-A, the resignation is deem to have come into effect with affect from 7.10.2009, and once the petitioner's retirement comes into effect with affect from 7.10.2009, there is no necessity for submitting a relieving order from his previous employer, as the lien on the post held by the petitioner with the previous employer i.e.. respondent No.2 has come to an end due to retirement having come into force with effect from 7.10.2009.
26- As far as retirement coming into affect with effect from 7.10.2009 and petitioner's contention that the lien to the post of the previous employer comes to an end on that day is concerned, there is no dispute in accepting the aforesaid proposition canvassed by learned Senior Counsel Shri Ajay Mishra. However, when the question pertains to appointment of a person to a particular post, the requirement of seeking a proper relieving order from the previous employer, the purpose and the intention behind the same has to be appreciated. Petitioner may be right in contending that normally once his employment with the previous employer comes to an end by virtue of his retirement and, therefore, there is no question of relieving, but in a particular case, when an employment is offered to a person by the employer respondent No.1 in the present case, the new employer is entitled to verify the previous antecedents of the person, who is being appointed and after being satisfied about his service record with the previous employer, can take a decision regarding his appointment. If the previous record of service of the person concerned with his erstwhile employer is found to be tainted or not free from doubt, the new employer may have reservations in the matter and may not have confidence in appointing such a person. Having confidence in a person to be appointed is of paramount importance for entering into a contract of service and if the employer feels that the person to be appointed is not beyond reasonable doubt or his career with the previous employer is covered by a cloud of suspicious activities, is tainted and is not in accordance to the conduct expected of a prudent employee, the employer has an option to reject the candidature for appointment of such a person. It is in the backdrop of these circumstances that the question of insisting upon relieving, is to be considered.
27- Even though during the course of hearing Shri R.N. Singh, learned Senior Advocate, had referred to the attestation form submitted by the petitioner and by placing reliance on the judgment rendered in the case of Kendriya Vidyalaya Sangathan (supra) had argued that petitioner has suppressed material facts while submitting the attestation form, Shri Ajay Mishra, learned Senior Advocate, had refuted the aforesaid and by referring to Annexure to the attestation form, had submitted that the facts were disclosed. Now, in the light of the findings recorded hereinabove, the said question need not be gone into.
28- Keeping in view the aforesaid circumstances and the principles laid down by the Supreme Court, in the cases of Dr. H. Mukherjee (supra) and P. Saroj (supra) and the facts and circumstances of the present case, this Court does not find any arbitrariness or illegality in the action of the respondents, impugned in this writ petition warranting interference. The respondents are well within their rights in withdrawing the offer of appointment, when they are satisfied about the past conduct of the petitioner and the subjective satisfaction of the respondents in assessing the past conduct of the petitioner and holding it to be such that it disentitles the petitioner to join the establishment of respondent No.1 cannot be termed as an arbitrary or illegal decision warranting interference by this Court in exercise of its limited jurisdiction in a petition under Article 226 of the Constitution. Respondent No.1 has given reasonable justification for their impugned action and this Court cannot sit over the said decision as if it exercises appellate jurisdiction. Respondent No.1 having refused to enter into a contract of service with the petitioner for the reasons indicated hereinabove, a writ of mandamus cannot compel respondent No.1 to enter into a contract, contrary to their wishes.
29- Accordingly, finding no justification for interfering into the matter, this petition is dismissed without any order so as to costs.