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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: SHRI RATI PAL SAROJ & ANR.

DATE OF JUDGMENT:       04/02/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      The respondent  Rati Pal  Saroj was,  at  the  material time, Under  Secretary, Union Public Service Commission as a Grade -  I Officer  of the  Central Secretariat  Service. He appeared for  the Civil  Service Examination  1985.  On  the basis of  the results declared the respondent was offered an appointment to the Indian Administrative Service by a letter dated  31st   July,  1986.   The  respondent  was  offer  of appointment by his telegram of 5th August, 1986.      Under the letter of appointment respondent was required to  join   the  Lal   Bahadur  Shastri   Nation  Academy  of Administration, Mussoorie  as a  probationer on 24th August, 1986. A  copy of joining instructions was also enclosed with the letter  of appointment. The respondent was, however, not relieved from  the post  of Under  Secretary,  Union  Public Service Commission’s  letter to  the respondent  dated  22nd August, 1986 directed the respondent not to hand-over charge of his  office or  get relieved  as Under  Secretary,  Union Public Service  Commission until  he got  specific orders in this regard.  Since he  was not  relieved from  his post the respondent could  not join the Indian Administrative Service as a  probationer at the National Academy of Administration, Mussoorie.  In  7th  September,  1986  C.B.I.  registered  a complaint against the respondent and certain other person to the effect that the respondent and these persons had entered into a  criminal conspiracy  where by the originally written answer-papers  of  the  respondent  in  the  Civil  Services Examination were  clandestinely removed  and substituted  by other answer-papers.  The respondent had abused his official position as  a public  servant and  an official of the Union Public Service  Commission in  doing so.  The appellant,  by letter dated  9th September,  1986  withdrew  its  offer  of appointment to the Indian Administrative Service made to the respondent by  the letter of 31st July, 1986 and stated that the same  should be treated as cancelled. The respondent was detained  in   custody  on  10th  September,  1986.  He  was suspended from  Central Secretariat Service with effect from 10th September,  1986 and a departmental inquiry was also st arted. The respondent was served with a charge-sheet on 21st

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November,  1986.   However,  on   the  application   of  the respondent, the  departmental inquiry has been ordered to be kept  in   abeyance  because   of   the   pending   criminal proceedings.      The respondent  filed an application before the Central Administrative   Tribunal    challenging   the   withdrawal/ cancellation of his appointment to the Indian Administrative Service by  the letter  of 9th September, 1986. The Tribunal held that  the offer  could not  have been  withdrawn  after acceptance; if  such a  step became necessary the principles of natural  justice would  warrant giving  a hearing  to the respondent. So  long as the respondent was not relieved from his previous post the offer of appointment should be treated as if it were in abeyance. The offer could not be withdrawn. The tribunal,  therefore, allowed  the application  of the r espondent. Hence the present appeal by the appellant.      The above  facts show  that  the  respondent  had  been offered an  appointment to the Indian Administrative Service which he  had accepted.  The respondent,  however, could not join Indian  Administrative Service  as a probationer within the prescribed  period because  he was not relieved from his previous post.  Before the  respondent could join the Indian Administrative Service  as a probationer, the appointment is withdrawn or  cancelled. Therefore,  one thing  at least  is clear -  the respondent  was not a probationer in the Indian Administrative Service  on the date when his appointment was withdrawn or  cancelled. He  held the  post of  a  Grade  -I Officer in  the Central Secretariat Service on the date when the appointment  was withdrawn and he continues to hold that post.      What  is  the  position  of  the  respondent?  Once  an appointment order is issued, is it open to the Government to withdrawn that  appointment on  bona fide  ground before the prospective employee  actually  joins  service;  or  is  the Government required to hold a departmental inquiry or give a hearing to the prospective employee? Obviously, the employer will have  no right  to hold  a departmental inquiry because the employee  has not  joined service and is, therefore, not amenable to  the Service  Rules of  the employer.  The  only question, therefore,  is whether a hearing necessarily needs to  be   given  to   the  prospective  employee  before  the appointment letter  can be  withdrawn, or  whether this will depend on the facts and circumstances of each case.      Our attention  was drawn  to The  Indian Administrative Service    (Appointment    by    Competitive    Examination) Regulations, 1955,  framed under  the Indian  Administrative Service (Recruitment)  Rules, 1954.  The regulations provide for holding  of examination by the Public Service Commission and the  manner in  which this  examination is  to be  held. Regulation 11  deals with  Disciplinary action.  Under  this regulation a  candidate for  the examination  who  has  been declared by  the Commission  to be  guilty of,  inter  alia, using unfair  means during  the examination may, in addition to rendering  himself liable  to  criminal  prosecution,  be labile, inter  alia, if  he is  already in service under the Government, to  disciplinary action  under  the  appropriate rules. Regulation 13 provides as follows :-      "13. Inclusion in  List Confers  no      Right   to    Appointment   -   The      inclusion of  a candidate’s name in      the  list   confers  no   right  to      appointment  unless   the   Central      Government is satisfied, after such      enquiry  as   may   be   considered      necessary,   that   the   candidate

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    having regard  to his character and      antecedents  is   suitable  in  all      respects  for  appointment  to  the      Service."      Therefore ,  even though  a  candidate’s  name  may  be included in  the select list, he has no right to appointment and the  Central Government  is entitled  to satisfy  itself about the  character and antecedents of the candidate before offering him  an appointment.  Therefore, it  is open to the Central Government  not to  offer appointment to a candidate although he  is on the select list if the Central Government is not  satisfied about  his character or antecedents. There is no  question of  any enquiry  or hearing  at  this  stage because no  right is  created in favour of a candidate whose name is  on the  select list.  If the  candidate is  offered appointment  and   joins,  he  is  governed  by  the  Indian Administrative Service (Probation) Rules of 1954. Under Rule 12 of  these Rules,  a probationer  shall be  liable  to  be discharged from service or, as the case may be, reverted tot he permanent post on which he holds a lien if, inter alia, t he Central Government is satisfied that he is unsuitable for being a  member of  the Service  or he  is found  lacking in qualities of  mind and character needed for the Service. The proviso to  this Rule  requires that except in the case of a probationer’s services  being terminated for failure to pass the  re-examination,   in  all   other  cases   the  Central Government shall  hold a  summary enquiry  before passing an order.      The respondent,  in the  present case,  in  the  strict sense,   governed   by   Regulation   13   of   The   Indian Administrative   Service    (Appointment   by    Competitive Examination) Regulations,  1955, since  the appointment  has been withdrawn  after the  appointment order  was issued  an not before.  The Indian  Administrative Service  (Probation) Rules of 1955 also do not apply to the respondent because he does not  belong to  the Indian  Administrative Service as a probationer. He is in the intermediate stage of a person who has accepted  the appointment  offer but  has not joined the new service. What are his rights?      His position  appears more  akin to  the position  of a selected rather than a probationer because he has not joined the new  service  when  the  appointment  is  cancelled.  He continues to  belong to  the Service which he had joined and to which  he belonged  prior to  his present  selection. One thing at  least is clear - he cannot have higher rights than a probationer.  It is  well  settled  that  a  probationer’s service can  be terminated during the period of probation if he is  found unsuitable.  No enquiry  is necessary  for such termination of the services of a probationer. In the case of Samsher Singh  v. State  of Punjab & Anr. [1974 (2) SCC Page 831], a  Bench of  this court  consisting of  seven  Judges, inter alia,  held that  the services of a probationer can be terminated when  the authorities are satisfied regarding his inadequacy for  the job,  or unsuitability for temperamental or other  reasons not involving moral turpitude, of when his conduct may  result in  dismissal or  removal but  without a formal enquiry.  An  enquiry  is  necessary  only  when  the termination is by way of a punishment, and to determine this the substance of the order and not the from is decisive. The same position  has been  re-affirmed  in  Anoop  Jaiswal  v. Government of  India &  Anr. [1984  (2) SCC  369] where  the decision on  Samsher Singh  v. State  of Punjab  (supra) has been quoted  extensively. Before a probationer is confirmed, the authority  concerned is  under an obligation to consider whether the  work of  the  probationer  is  satisfactory  or

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whether he  is suitable  for the  post. If  it comes  to the conclusion that  the  probationer  is  not  suitable  he  is liable to  the discharged.  he cannot,  in  this  situation, claim the benefit of Article 311(2).      There  is no reason why the same right to terminate the offer of  appointment  on  the  ground  of  the  prospective employee’s unsuitability  should be  denied to  the  Central Government. An  employee who  has not yet joined the Central Government Service cannot be put on a higher pedestal that a probationer. If  an employee  who has been offered a post by the Central  Government is  not in a position to join on the date fixed  under the  appointment letter  and there  is  no prospect of  his joining  for several  years  to  come,  the Central  Government  would  be  entitled  to  terminate  the appointment as  the person appointed is not available to the Central  Government   within  a   reasonable  time   of  the appointment and hence he is not suitable. This does not cast any stigma  nor is  it  a  punishment  for  the  prospective employee. If  the employee  has a  right to  be appointed by virtue of  his acceptance  of the  offer of  appointment hat right has  to be  exercised within  a reasonable tome. It is not a  right which remains for an indefinite period of time. In the same way, if the Government discovers after the offer of appointment,  circumstance relating  to  the  prospective employee  which  make  him  unsuitable  for  the  post,  the appointment can  be cancelled.  If the circumstances raise a doubt about  the suitability  of the candidates for the post or the  Service in  question, the  doubt should be dispelled within a reasonable time. Otherwise the employer is entitled to  cancel  the  appointment.  This  is  not  by  way  of  a punishment nor  does it  case a  stigma on  the  prospective employee.      Learned  counsel  for  the  respondent  relied  upon  a decision of  this Court in Sharwan Kumar Jha & Ors. v. State of  Bihar  &  Ors.  [1991  supp.  (1)  SCC  330]  where  the appellants were  appointed as  Assistant Teachers  and  were required to  join the schools by a specified date. There was a dispute  whether they  had joined the s chools or not when an order  was passed  cancelling  their  appointments.  This Court said  that in  the facts  and circumstance of the case the appellants  should have  been  given  a  hearing  before cancelling their  appointments. This  decision turns  on the facts and  circumstances of  the case, especially when there was a dispute as to whether the teachers had actually joined or not joined. This decision will have no application to the present case where it is quite clear that the respondent was not even  a Probationer at the time when his appointment was withdrawn.      In  the   present  case   looking  to   the  facts  and circumstances it  was not necessary to give a hearing to the respondent. It  is urged  that the withdrawal of appointment was on  account of  the F.I.R.  filed against the respondent and, therefore,  the respondent  should have  been hard  and given a  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

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service of the Central Government. All those who are members of the Indian Administrative Service are called upon to disc harge 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 circumstances of  the present  case the  Central  Government decided that  the respondent  was unsuitable  to be  given a post in  the Indian  Administrative  Service,  the  decision cannot be  faulted. The impugned letter merely withdraws the e offer  of appointment. It casts no stigma. So  long as the decision is  taken bona  fide on  relevant facts  and in the interest of the service it cannot be faulted.      The appeal  is  allowed,  the  impugned  order  of  the Tribunal is  set aside  and the  application  filed  by  the respondent before  the Central  Administrative  Tribunal  is dismissed with costs.