IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7299 of 1987 (O&M) Date of decision: 04.10.2011 Raj Kumar Sharma, Advocate, Civil Court, Karnal, r/o 240-R, Model Town, Karnal (Haryana) ....Petitioner versus The Chairman-cum-Managing Director, The Oriental Insurance Company Limited, Asaf Ali Road, New Delhi, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Shish Pal Laler, Advocate, for the petitioner. Mr. T.S. Gujral, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. The petitioner seeks for a mandamus against the respondents for appointment as Legal Officer in Assistant Administrative Officer cadre with the Oriental Insurance Company. The admitted case is that after the recruitment process, the petitioner had been issued with letter of provisional selection as having been made and he was to report for medical examination on 13.04.1987. However, the final appointment order had not been issued and the employer in the meanwhile had some information about the fact that Civil Writ Petition No.7299 of 1987 (O&M) - 2 - the petitioner had been involved in a criminal case. There was a letter of communication from one of the persons, who had given a reference about the petitioner's good conduct, that the petitioner was a fraudster and he was the brother of one Vijay Kumar Sharma, who was a thief against whom a FIR had been registered along with other persons. The person had also sounded a note of caution to the employer against taking him in their employment. Through the impugned telegram dated 22.07.1987, the petitioner was informed that the provisional selection had been cancelled. This communication is the subject of challenge in this writ petition. 2. The petitioner's contention is that one R.M. Jain, who was the proprietor of M/s Special Machines, Karnal, had a business rivalry with the petitioner's brother, who had established a new industry called M/s Sheela Industries. The said Jain had got a false case registered under Section 408/506 CPC against the petitioner, his brother and brother-in-law. The case was a foisted one. The petitioner was a respectable citizen being a practitioner at law and had no criminal antecedent. The action of the respondents which was a public authority in withdrawing the provisional order of employment was arbitrary and was liable to be quashed. The said decision having been taken unilaterally, without affording to the petitioner appropriate opportunity, was liable to be quashed. 3. The respondents would state that the first letter of provisional appointment did not give to the petitioner a right to be Civil Writ Petition No.7299 of 1987 (O&M) - 3 - recruited. The employer had a right to check on the antecedents of a prospective employee and they could act on the statement of persons, who had given the references. The respondents would disclose that they had sought for reports touching on conduct and antecedents through a Chief Vigilance Officer and the person against whom an adverse report was forthcoming could not be given any appointment. In this case, R.M. Jain whose reference of 'good conduct' had been submitted by the petitioner, had later reported that the petitioner was not a person of good conduct and character. The respondents had come by information that the petitioner had been involved in two criminal cases lodged against him in FIR Nos.621 of 1986 and 342 of 1987. While in one case, the petitioner had been bailed out and in yet another case, he was still arrayed as accused. 4. The learned counsel appearing on behalf of the petitioner argued that so long as there had been no criminal conviction rendered against the petitioner, the respondents could not have denied to him appointment. According to him, a mere registration of a complaint cannot be a ground for denying a person a right to public appointment. The respondents, on the other hand, have filed the copy of the application form submitted by the petitioner that showed that he had cited Shri R.M. Jain as one of the persons, who was to give a testimonial to his good conduct and also refers to the fact that the petitioner was making a declaration that the details contained in the petition were true but against the column B- Civil Writ Petition No.7299 of 1987 (O&M) - 4 - 8 seeking for details of whether he had been charged for any criminal offence, the petitioner had entered “N.A.” which was patently false. 5. The questions that would fall for consideration are whether (i) a person, who has only been served with the provisional appointment order, had a vested right to insist on appointment; (ii) whether lodging of a FIR against a prospective employee would itself be a justification to deny public appointment. As regards the first question, it hardly requires any long reasoning, for, by the very expression that the offer of appointment was provisional, it would enable the employer to withdraw such an offer. It would, therefore, not give to the offeree a vested right. But the action of a State functionary shall always be tested on the touchstone of Article 14 and, therefore, if the withdrawal of the offer was to be examined and found to be placed on some tenable ground, then it shall not become possible for a person to complain that there was any arbitrariness in the action. A mere lodging of FIR at all times may not be conclusive or disqualify a person from seeking appointment, provided that it is only a trifle of incident or the employer had himself reasons to discard as unworthy of taking serious reckoning. The learned counsel for the Corporation points out that the norms of recruitment as provided under the relevant rules specifically provided that there shall be a vigilance clearance before appointment order is issued. The verification of character and antecedents is a necessary input for Civil Writ Petition No.7299 of 1987 (O&M) - 5 - okaying a candidate. The verification report submitted by the Vigilance Section on 14.07.1987 gave details of the cases registered against the petitioner and that itself was sufficient basis for the respondents to deny the appointment. The requisite test of fairness in the conduct of a public authority could only be whether the action is in conformity with the relevant rules which were framed to secure the best talent in public appointment and whether the action is resultant to the application of such a rule. In cases where there is huge competition in market for securing appointment, it is only natural for an employer to scout for the best talent, with no taint of even a suspicion against the prospective employee. It is not as if the public authority had paraded or put to needless publicity an adverse report. Indeed the Rule itself requires the vigilance report to be kept confidential and the telegram of denial of appointment is simpliciter a cancellation of provisional offer that attaches no stigma to the petitioner. 6. The learned counsel for the respondents also refers me to a large volume of case law arising on the subject explaining as to how a provisional offer cannot be conclusive. In Shankarsan Dash Versus Union of India-AIR 1991 Supreme Court 1612, a Constitution Bench of the Hon'ble Supreme Court held that inclusion of candidate's name in the merit list alone does not confer any right to be selected. In Kendriya Vidyalaya Sangathan and others Versus Ram Ratan Yadav-Volume II (2003) Supreme Laws Civil Writ Petition No.7299 of 1987 (O&M) - 6 - Today 236, the suppression of factual information of pendency of a criminal case was found to be sufficient to deny an appointment and even terminate the appointment if already issued. The Hon'ble Supreme Court held that the purpose of seeking information was not to find out nature or gravity of offence or result of criminal case but to judge the character and antecedents to decide of whether to continue in service or not. In R. Radhakrishnan Versus The Director General of Police and others-2008(1) Services Law Reporter 655 the Hon'ble Supreme Court has held that the suppression of a material fact relating to antecedents was relevant to deny an order of appointment. I will not go as far as to suggest that there had been any deliberate suppression of fact on the part of the petitioner. The vigilance report on the antecedents of the petitioner was sufficient justification for the public authority to deny the appointment. 7. The only surviving question shall be whether the action of the respondents could be said to be unilateral. If only there had been a contract of appointment then it cannot be a one way process. So long as it was only at the stage of provisional appointment, a withdrawal of offer cannot be said to give rise to any cause of action for a person to complain that no notice had been given to show cause against such action. In U.P. Junior Doctors' Action Committee Versus Dr. B. Sheetal Nandwani and others-AIR 1991 Supreme Court 909, the Hon'ble Supreme Court held that a Civil Writ Petition No.7299 of 1987 (O&M) - 7 - selection secured to a postgraduate course by a practice of fraud could be cancelled without prior notice. The issue of opportunity of hearing did not arise. Here again, I will not say that there was any fraud practised by the petitioner but I would rest the decision only on the ground that the petitioner had not already secured a firm order of appointment and at that stage when the employer had decided to cancel the provisional offer, the action of the State authority was justified as per the recruitment rules and guidelines already extracted above. The petitioner's challenge cannot survive favourable consideration and the writ petition is, accordingly, dismissed. (K. KANNAN) JUDGE 04.10.2011 sanjeev