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K. Jagannadham Vs. District Collector, Kurnool and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 477 of 1964
Judge
Reported inAIR1966AP59
ActsEvidence Act, 1872 - Sections 115
AppellantK. Jagannadham
RespondentDistrict Collector, Kurnool and anr.
Appellant AdvocateP.A. Chowdhary, Adv.
Respondent AdvocateG. Suryanarayana Murthy, Adv. for ;N.V.B. Shankar Rao, 2nd Govt. Pleader
DispositionPetition allowed
Excerpt:
.....evidence act, 1872 - petitioner being qualified duly permitted to sit in examination conducted by public service commission - his name was in approved list of candidates for appointment as he was declared selected - district collector after completion of probation period cancelled his selection for want of requisite qualification to sit in examination - petitioner sought to quash impugned order passed by district collector - no valid justification for depriving petitioner of his service - merely because authorities negligent in informing themselves correctly at appropriate time of a matter which related to period anterior to petitioner's appointment - no allegations of fraud, misrepresentation and suppression of facts against petitioner - principle of estoppel operated against..........of marks he had obtained in that subject. his s. s. l. c. register did not separately slate the marks obtained in typewriting. it treated 'secretarial course' as a single subject and showed that the petitioner had obtained 40 per cent in it. it was a true copy of this register that the petitioner furnished to the public service commission at the time of his application for admission to the competitive examination held by the service commission in march 1959. it was on the basis of this data that he was permitted by the service commission to sit for the competitive examination. he passed in that examination. thereafter his name was included in the list of 'approved candidates' and be was allotted for appointment as a typist to the region of the district collector of kuniool. now, the.....
Judgment:
ORDER

Gopalakrishnan Nair, J.

1. This is a petition under Article 220 of the Constitution asking for an appropriate Writ, order or direction to quash the order passed by the District Collector, Kuniool in his Ref. A. 6-24380/63 dated 4-2-1964. The brief facts lending up to this writ petition are as follows:

The petitioner passed his S. S. L. C. Examination in the year 1955 with 'Secretarial course' us his optional subject. 'Secretarial course' consists of drafting, Precis-writing and Typewriting. After having passed the S.S.L.C. examination, the petitioner applied to the Public Service Commission for being admitted to the competitive examination held by it for selection of clerks, etc. The petitioner was duly permitted to sit for the examination which was held by the Public Service Commission in March 1959. He was successful in that examination, and his name was in due course included by the Service Commission in the approved list of candidates for appointment in the Kurnool District. On 12-1-1962, the petitioner received a communication from the Collector of Kuniool informing him that he and 10 others were approved as candidates for appointment, and that the petitioner was appointed as a typist on probation in the office of the Revenue Divisional Officer, Nandyal. The petitioner joined duty on 25-1-1962 at Nandyal. The probation was for a period of two years. He completed that period and was continuing as typist. But on 4-2-1964, the District Collector, kuniool at the instance of the Service Commission, passed an order purporting to cancel the petitioner's selection as an approved candidate on the ground that he did not possess the requisite qualification in typewriting for being permitted to sit for the competitive examination held by the Public Service Commission in March 1959. On this ground the petitioner was discharged from service. It is this order that is now impugned by the petitioner.

2. The first respondent, who is the District Collector, Kurnool, has not filed any counter but the second respondent who is the Secretary, Public Service Commission, Andhra Pradesh, has filed a counter affidavit justifying the impugned order. He says that the petitioner was only provisionally permitted to sit for the competitive examination and that his selection as an approved candidate for appointment as a typist was also provisional. He clarifies this by stating that the petitioner's inclusion in the approved list was subject to his producing the original documents of which he had already furnished true copies. After the originals were produced by the petitioner, enquiries were made by the Secretary, Public Service Commission and it was ascertained from the Commissioner of Board of Secondary Education that the petitioner had obtained only 44 per cent in Typewriting in the S. S. L. C. Examination. Only a person who had secured 45 per cent of the marks in typewriting was eligible to sit for the competitive examination held by the Service Commission in March 1959. As the petitioner was eventually found not to have obtained this requisite number of marks, he was not entitled to be retained in service and the Collector was therefore justified in discharging him from service by the impugned order.

3. It is well to state at this stage that it in not the case of the respondents that the petitioner was guilty of any fraud, misrepresentation, suppression of facts, or lack of bona fides. He did not at any lime state or give the impression to the Collector or the Public Service Commission that he had obtained 45 per cent in the typewriting examination. Indeed, it appears that at the relevant time he himself was not aware of the number of marks he had obtained in that subject. His S. S. L. C. register did not separately slate the marks obtained in Typewriting. It treated 'Secretarial course' as a single subject and showed that the petitioner had obtained 40 per cent in it. It was a true copy of this register that the petitioner furnished to the Public Service Commission at the time of his application for admission to the competitive examination held by the Service Commission in March 1959. It was on the basis of this data that he was permitted by the Service Commission to sit for the competitive examination. He passed in that examination. Thereafter his name was included in the list of 'approved candidates' and be was allotted for appointment as a typist to the region of the District Collector of Kuniool. Now, the Secretary, Public Service Commission (second respondent) says that the petitiouer was only permitted provisionally to write the competitive examination. But the petitioner was admittedly not informed of the alleged provisional nature of the permission. On the other hand, he appears to nave been kept totally in the dark about it.

Furthermore, there does not appear to be any rule which authorises the Secretary, Public Service Commission to accord such provisional permission to appear for the competitive examination, and if the permission originally accorded was only provisional as the second respondent would have it, one would reasonably expect the petitioner's results to have been withheld and his name not to have been included in the list of successful candidates, until it was verified by the Public Service Commission as to whether be had obtained the requisite number of marks to render him eligible to sit for the examination. This obvious course was not adopted.

4. Then, we come to the stage of the alleged provisional inclusion of the petitioner's name in the list of 'approved candidates'. But this provisional inclusion is found to be nothing more than requiring him to produce the original documents of which true copies had already been furnished by him to the Public Service Commission at the time of his applying for permission to write the competitive examination. Therefore the provisional nature related only to the correctness of the true copies furnished by the petitioner. The correctness was to be verified by comparing the copies with the original documents. The inclusion of the petitioner's name in the approved list was provisional only in this limited sense.

The Collector also appears to have been informed only about the need to call for the original documents for the purpose of ascertaining whether the true copies furnished by the petitioner tallied with them or not. This was done by the Collector, and it is admitted that the copies furnished by the petitioner were true to the originals. The technical qualification, so far as the petitioner was concerned, was the passing of the 'secretarial course' which included an examination in typewriting also. In this respect also, the true copy of the S. S. L. C. register which was furnished by the petitioner was to be compared with the original S. S. L. C. register, it is not gainsaid that the copy furnished by the petitioner to the Public Service Commission at the time of his applying to appear for the examination was a true copy of the original S. S. L. C. register. Thus, the. petitioner had acquitted himself properly in this regard.

5. A somewhat strange feature however emerged later. In the original S. S. L. C. register as also in the copy which had originally been furnished by the petitioner, no separate mention was made of the marks obtained by the petitioner in the typewriting examination. This led to some correspondence late in 1903 with the Board of Secondary Education. The Secretary to that Board informed the Secretary, Public Service Commission that the petitioner had obtained 44 per cent of the marks in the S. S. L. C. type writing examination. This caused the Service Commission Secretary (2nd respondent) to write to the Collector that the petitioner's appointment be cancelled. The Collector acted on this communication by passing the impugned order. At no stage does it appear that the petitioner was in any manner guilty of any mala Fides. On the other hand, it was the Secretary, Public Service Commission and perhaps also the Collector who were to be blamed for the mistake, it any, and for the negligence and delay which led to that mistake. The Secretary could have, even when the petitioner applied for permission to git for the Service Commission examination, asked him to produce separate marks obtained by him in typewriting. That was not done.

On the other hand, the Service Commission was content with the true copy of the S. S. L. C. register furnished by the petitioner which showed that the petitioner got only 40 per cent of the marks in the 'Secretarial course' examination. The inclusion of the petitioner's name in the approved list he having passed the Service Commission examination and his subsequent appointment by the Collector as a regular probationer, were the result of the petitioner having passed the Public Service Commission examination. After he was appointed and after he served in that post for more than 2 years, he was sought to be discharged on a ground which it was easy and open to the respondents to discover much earlier. If the petitioner was told in 1959 or 1960 or even in 1961 that ho was not eligible, he could have explored other avenues of Government service before he became age barred. When the impugned order was passed he was 27 years old two years older than the maximum age prescribed for entering Government service. The petitioner entered service in the faith that he was regularly and validly appointed and that he could continue in service until tha age of superannuation. That faith and hope have now been rudely dashed to the ground. Here lies the injustice and hardship to the petitioner. The petitioner who is 27 years old would be barred from seeking fresh Government ministerial service, if he is now discharged. If he had been told in 1959 or 1960 that he was not eligible as a typist, he could have sought some equivalent post to be appointed or perhaps equipped himself to be eligible for the same post. Those avenues are now closed to him. This result has come about mainly because of the mistake and indifference on the part of the respondents. I do not think the petitioner can legitimately be penalised for any act of commission or omission of the respondents. It is well to remember that the Service Commission included the petitioner's name in the approved list only about a year and nine months after he appeared for the examination of March 1959. At least during this long Interval, if not earlier, it should have been possible for the Service Commission to look at the true copy of the S. S. L. C. register furnished by the petitioner to them and ascertain the marks obtained by the petitioner at the S. S. L. C. examination. That however was not done. If it had been ascertained earlier that the petitioner had obtained only 44 per cent in the S. S. L. C. typewriting examination and not the requisite 45 per cent the petitioner could have been informed about it and he could have resorted to other channels of Government employment.

6. This is a case where the petitioner had placed all the available material truthfully before the Public Service Commission, ana by their conduct, the Commission caused the petitioner to act on the faith of the existence of a state of affairs which, to his great detriment he was told, more than two years later, did not exist. In the name of alleged correction of a; mistake, the respondents cannot seek to do this amount of harm to a person like the petitioner, who I should think has been much more sinned against than sinning.

I may also state that there is not even a whisper against the quality of work of the petitioner or his efficiency as a typist. If the petitioner was found to be inefficient or unsuitable to hold the post, appropriate action could have been taken against him under the relevant service rules, for terminating his probation and discharging him from service. This course has not been adopted. This circumstance leads to the inference that the petitioner has been found to be satisfactory in his work. In such a case to go back some years before his appointment and trot out a circumstance which was missed by the respondents due to their own negligence and use it against the petitioner to his detriment does not appear to be permissible in law. The petitioner who was duly appointed as a probationer and has also completed the period of his probation can be discharged or removed from service only in accordance with the statutory service rules governing him.

There is no service rule which authorises the respondents to get rid of the petitioner from service in the manner sought to be done by the impugned order. No fraud, misrepresentation or anything mala fide has even indirectly been imputed to the petitioner. Any negligence, oversight or mistake of the respondents cannot be blamed (in the petitioner. I see no valid justification for depriving the petitioner of his service career merely because the respondents happened to be remiss or negligent in informing themselves correctly at the appropriate time of a matter which relate to a period anterior to the petitioner's appointment in Government service. The petitioner is entitled to the protection of the service rules under which he was appointed and which govern him. The respondents having brought about a situation on the faith of which the petitioner embarked upon a service career, cannot, at so late a stage and so much to the detriment to the petitioner, be heard in say that the situation of their making should be regarded as not have existed at all. The principle of fistoppel operates against the respondents in the circumstances of this case.

7. 1 should like to repeal that this is not a case where the petitioner even indirectly suppressed a fact which he was aware of and thereby gained an unfair advantage for himself. Nor is this a case in which the fact relied on by the respondents for their action took place after the petitioner's appointment as typist.

8. In Registrar University of Madras v. Sundara Shetti AIR 1950 Mad 309 an endorsement of eligibility for admission to the University was made by the Secretary, Secondary Education Board on the S.S.L.C. book of a particular student. On the faith of this endorsement, the University admitted the student to the two year Intermediate course. He completed his first year and did a good part of the second year also. By then, the University found out that the petitioner was not really eligible for admission to the University. Consequently, they took action to stop him from continuing his studies in the University. This led to a writ petition being filed by the student in the Madras High Court. A Division Bench of the Madras High Court consisting of Rajamannar, C.J. and Somasundaram, J. held that the student having expended time and money in pursuing a course of study on the strength of the endorsement, even though wrong, made by the Secretary, Secondary Education Board, it was case of legal or equitable estoppel which satisfied practically all the conditions embodied in Section 115 of the Evidence Act and the University was estopped from taking action against the student fay preventing him from continuing his University studies. The principle of this decision does apply to the instant ease.

9. A more direct decision was rendered on 9-12-1980 by a Division Bench of this Court composed of Chandra Reddy C. J. and Ramachandra Rao, J. in W. P. No. 332 of 1957 (Andh. Pra). The facts of that case are very close to the facts of the present case. The petitioner there applied to the Service Commission for permission to sit for a competitive examination and it was granted. He passed the examination. Sometime later, he was informed that he was selected provisionally for appointment as Lower Division Clerk in the Office of the Director of Agriculture and Fisheries, Andhra. In pursuance of this, he was duly appointed and was given training for three months from 5-7-1956 to 4-10-1956. But in April 1957, the Public Service Commission sent a memorandum to him that he should have obtained 35 per cent of marks in the optional subject in his H. S. C. examination, for admission to the Ministerial service examination held by them and that as he had secured only 30 per cent in the optional subject in the H. S. C. examination he did not possess the minimum general educational qualification and that he was therefore not eligible for appointment as a clerk by direct recruitment and his provisional selection as a clerk was consequently cancelled. This order was impugned in a writ petition tiled under Article 226. The Division Bunch allowed this writ petition and quashed the aforesaid order passed by the Public Service Commission. The learned Chief Justice stated:

'We do not think that this order can be allowed to stand. There can be little doubt that at the time when the petitioner sent in his application he had also sent a certificate of marks obtained by him, which revealed that he had secured only 30 per cent in the optional subject. Notwithstanding this, the petitioner was permitted to sit for the competitive examination and he was declared to have passed the test and it was only when he came out successful in the examination that he was appointed as a clerk to serve in the Department of Agriculture. Thereafter, he was working for a number of months in different places in Andhra Pradesh in that department. That being the position, it is not open to the Public Service Commission to cancel his selection and remove him from service.'

This decision applies on all fours to the present case.

10. In view of the foregoing, this writ petition has to be allowed and the impugned order quashed. In the circumstances of this case, I make no order as to costs.


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