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THE PRINCIPAL ACCOUNTANAT GENERAL AUDIT

High Court of Judicature at Allahabad

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The Principal Accountanat General Audit-1 And Others v. Ahok Kumar Mourya And Others - WRIT - A No. 20676 of 2004 [2005] RD-AH 3117 (19 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

CIVIL MISC. WRIT PETITION NO. 20676 OF 2004

The Principal Accountant General, Audit-I, U.P. Allahabad and others

versus

Ashok Kumar Maurya and others

Connected with

Writ petitions no. 20689, 20685, 20688, 20683, 20670, & 20679 of 2004

HON. DR. B.S. CHAUHAN, J.

HON. SHISHIR KUMAR, J.

(By Hon. Shishir Kumar, J.)

The present writ petition has been filed for issuing a writ of certiorari quashing the order dated 11.2.2004 passed by Central Administrative Tribunal, Annexure-1 to the writ petition and a writ of mandamus directing the respondents to stay the operation of the order dated 11.2.2004 during pendency of the writ petition.

That the facts and circumstances giving rise to the present writ petition are that on the basis of the vacancies notified by the office of the respondent i.e. Accountant General, and others Central Government Offices, petitioners no. 2 and 3 issued an advertisement for the purpose of recruitment to the posts of clerks as Recruitment of Clerks 1996 Examination. The eligible candidates according to the qualifications mentioned in the advertisement submitted their applications and a written test was held on 22.9.1996. Respondent no.1 and other candidates appeared in the said written test examination after signing the attendance sheet in the Examination Hall. The applicant was declared successful in the written examination. Thereafter respondent no.1 appeared in the typing test and was finally selected. On the basis of the aforesaid selection the names of respondent no.1 and other similarly situated selected candidates on the basis of the vacancies, were sent to the office of respondent no.3. An appointment letter was issued in favour of the respondent no.1 on 10.7.1998 by the Senior Deputy Accountant General (Administration). In pursuance of the aforesaid appointment letter respondent no.1 joined his service. It appears that petitioners no.2 and 3 however, on the basis of some complaints or on the basis of some inquiry reopened the matter regarding the validity of the selection which was held on the basis of the Examination of 1996. It has been stated that on 13.12.1998, the Government Examiner of Question Documents, Bureau of Police Research and Development, Ministry of Home Affairs, Shimla gave its report that handwriting and signatures provided by respondent no.1 do not tally with the those available on the answer-sheets. Petitioner no.3 issued a show cause notice / memorandum on 7.1.1999 at the residential address in the registered cover, requiring respondent no.1 to show cause as to why the candidature for clerk grade examination of respondent no.1 may not be cancelled. Respondent no.1 did not submit any reply to the show cause notice, as such the petitioner has issued an order on 8.2.1999 canceling the candidature of respondent no.1 for Recruitment of Clerks Grade Examination 1996 held on 22.9.1996 and he was also debarred from appearing in all future examinations of the Commission for a period of three years w.e.f. 22.9.1996. It has also been alleged that a copy of the said order was sent to the office of the Accountant general respondent for initiating necessary action.

Petitioner no.3 received a letter dated 5.3.1999 from respondent no.1. Along with the said letter a copy was enclosed of his letter dated 22.1.1999 alleged to have been sent earlier in reply to the show cause notice dated 7.1.1999. In the said letter respondent no.1 has challenged the competence of the petitioners to issue show cause notice. It appears that on 27.3.2000 notices were issued to the respondent no.1 by respondent no.4 as to why his services may not be terminated in view of the cancellation of his candidature dated 8.2.1999 passed by petitioner no.3. Respondent no.1 submitted his reply but no action was taken against the respondent no.1 till 2/3.9.2002. On the said date the office of the Accountant General issued a charge sheet to respondent no.1 and by order dated 27.1.2003, the services of respondent no.1 were terminated on the basis of the recommendation of the Commission dated 8.2.1999. The appeal filed by respondent no.1 has been dismissed. The respondent no.1 filed Original Application before the Central Administrative Tribunal which was numbered as O.A. No. 702 of 2003 challenging the orders passed by the Staff Selection Commission and passed by the office of the Accountant General. The Claim petition filed by respondent no.1 was allowed vide its judgment and order dated 11.2.2004 and the order of termination has been quashed.

Sri Amit Sthalekar who appears for the petitioners has submitted that on the basis of the cancellation of the candidature by respondents no.3 and 4, the services of respondent no.1 has been terminated. The respondent no.1 was given a show cause notice and after affording full opportunity to the respondent no.1, the services of respondent no.1 were terminated. It has also been stated that the respondent no.1 was asked to show cause in writing within 7 days from the receipt of the memo as to why his services may not be terminated and why the disciplinary action be not taken. Respondent no.1 has submitted a reply and after consideration of the reply, the charge sheet was issued and then an order was passed after giving opportunity to respondent no.1. It has further been submitted that the finding recorded by the Tribunal to the effect that the total inquiry proceedings are vitiated by non-compliance of the principles of natural justice, is not correct as the sufficient time for engaging the defence assistant was given. The application filed by respondent no.1 was considered by the Inquiry Officer and the same was rejected after recording reasons. Respondent no.1 is not holding a civil post; therefore, he is not entitled to protection of Article 311 (1) of the Constitution of India.

We have heard the learned counsel for the petitioner and Sri Sudhir Agrawal who appears oh behalf of the respondent. Sri Sudhir Agrawal has submitted that the Staff Selection Commission, petitioner no.3 is a selecting body and on the basis of the vacancies in the various Central Government departments, the vacancies are sent to the office of respondent no.3 for making selections. Respondent no.3 after conducting the written examination and other requisite requirements select the persons and the list of the same is sent to the respective departments for making the appointment. The Staff Selection Commission is a body like State Public Service Commission or Union Public Service Commission. The said body has been made by the Ministry of Personnel and Training only for the purpose of recruitment to the posts which are outside the purview of the Union Public Service Commission. Immediately after the selection and appointment petitioner no.3 has got no right or jurisdiction to cancel the candidature of any candidate who have already been selected and appointed. It is only the appointing authority who can initiate any action against their employees. There is no relationship of Master and Servant between the petitioner and respondent no.1. Therefore, the order of cancellation of candidature of the respondent no.1 is without any jurisdiction.

It has also been submitted on behalf of respondent no.1 that the Tribunal has recorded a clear finding of fact that before waiting for the reply to the show cause notice issued by the petitioner, the candidature of the respondent has been cancelled. It has further been submitted that respondent no.1 as well as the other similarly situated candidates after completion of the probation period i.e. 2 years from the date of appointment has been confirmed and certain persons have been promoted to the post of auditor. As no opportunity has been given, therefore, the order terminating the services of the respondent no.1 itself is bad and the Tribunal has rightly set aside the said order and has given a liberty to the appointing authority to proceed in accordance with law.

It has further been argued by the learned counsel for the respondents that the order of termination is based upon the cancellation of the candidature of respondent no.1. If the order of cancellation is without jurisdiction and cannot be passed by respondents no. 3 and 4, the action is vitiated by the petitioners terminating the services, based on the cancellation of the candidature, is wholly illegal and bad in law. The tribunal has clearly recorded a finding that the opportunity which was necessary in law was not provided to the respondents. Sri Agrawal has also submitted that as the order of removal from the service has been passed by an authority other than the appointing authority, the Tribunal has clearly recorded a finding in view of the decision of the Apex Court in the case of Krishna Kumar Vs. Division Assistant, Electrical Engineer, Central Railway (AIR 1979 SC Page 1912). A clear finding has been recorded that as the Deputy Accountant General and Senior Accountant General enjoy the same and equal power as far as appointment of Group-C is concerned, the Tribunal has recorded a finding to this effect that the contention of the petitioners to this effect cannot be accepted and that it will not make any difference. The Tribunal has also given liberty to the appointing authority to proceed in accordance with law against the respondents.

The petitioners are not able to satisfy this Court that if the order has been passed by an authority other than the appointing authority can be treated to be held valid. From the record it is also clear that respondent no1 has not been accorded proper opportunity which is provided in law. The Tribunal has also recorded a finding that if the initial order passed by the disciplinary authority is illegal, the appellate order will not validate it even if the appeal has been decided by the competent authority.

The Tribunal while considering all the relevant factors has recorded a finding to this effect that the notices of show cause were not served on the applicants and on the basis of the exparte inquiry conducted by the Staff Selection Commission, the candidature was cancelled . A finding to this effect has also been recorded that a show cause notice on the basis of the cancellation of candidature by the Staff Selection Commission was issued by the Senior Deputy Accountant General regarding termination of service. The affected candidates have submitted their separate replies stating therein that they have never received any order of cancellation of their candidature by the Staff Selection Commission. It is also not in dispute that the applicants who were declared successful completed their period of probation and ultimately confirmed.

The Tribunal has recorded a clear finding to this effect that the order of cancellation of candidature cannot be sustained due to non -compliance of principles of nature justice. The petitioners have not denied this fact that before verifying this fact whether the show cause notice has been served or not, the candidature of the applicants before the Tribunal has been cancelled. A finding has also been recorded by the Tribunal that even the appointing authority has not afforded any opportunity to the respondent no.1 before passing the order terminating the services of respondent no.1. The counsel for the petitioner is not able to show any provision of law that he has nay jurisdiction to cancel the candidature of respondent no.1 after the appointment. The rules for examination relied upon by the petitioner will not help the petitioner as immediately after commencement of the examination and selection, the same has got no meaning as no action on that basis can be taken.

In view of the aforesaid fact as the Tribunal has clearly given liberty to the appointing authority for proceeding in the matter in accordance with law, therefore, we are of the considered opinion that the writ petition is devoid of merit and is hereby dismissed. No order as to costs. The interim order, if any, stands vacated.

19.9.2005

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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