# Bharat Sanchar Nigam Ltd v. Brij Mohan Srivastava and another

- **Citation:** (2002) 2 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-06-17
- **Case number:** Civil Misc. Writ Petition No. 20440 of 2001
- **Bench:** M. Katju, Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-sanchar-nigam-ltd-v-brij-mohan-srivastava-and-another-40006
- **Pages:** 7

## Headnote

Constitution of India- Article 226- If the
appointment
is
cancelled
arbitrarily
without a valid reason and without
following principles of natural justice,
such an action is arbitrary and capricious
and
is
hit
by
Article
14
of
the
Constitution of India and has to be
struck down. (Held in para 24)
Case Law Referred:
1979 (1) SCC 168
1990 (3) SCC 655
1991 Supp. (2) SCC 421
AIR 2001 1176
2001 (6) SCC 292

If
the
appointment
is
cancelled
arbitrarily without a valid reason and
without following principles of natural
justice, such an action is arbitrary and
capricious and is hit by Article 14 of the
Constitution of India and has to be
struck down.

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
526
have been committed either by the trial
court or revisional court.

6. In this view of the matter, this
writ petition being devoid of any merit
deserves to be dismissed and is hereby
dismissed. The interim order, if any,
stands vacated. However, the parties shall
bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.06.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 20440 of 2001

Bharat Sanchar Nigam Ltd. ...Petitioner
Versus
Brij Mohan Srivastava and another

 ...Respondents

Counsel for the Petitioner:
Sri Umesh Narain Sharma
Sri Devi Shanker Shukla

Counsel for the Respondents:
Sri B.P. Srivastava
S.C.

Constitution of India- Article 226- If the
appointment
is
cancelled
arbitrarily
without a valid reason and without
following principles of natural justice,
such an action is arbitrary and capricious
and
is
hit
by
Article
14
of
the
Constitution of India and has to be
struck down. (Held in para 24)
Case Law Referred:
1979 (1) SCC 168
1990 (3) SCC 655
1991 Supp. (2) SCC 421
AIR 2001 1176
2001 (6) SCC 292

If
the
appointment
is
cancelled
arbitrarily without a valid reason and
without following principles of natural
justice, such an action is arbitrary and
capricious and is hit by Article 14 of the
Constitution of India and has to be
struck down.

(Delivered by Hon'ble M. Katju, J.)

1. This bunch of five writ petitions
is directed against the judgment dated
12.2.2001 (annexure 1 to the writ petition)
delivered by the Central Administrative
Tribunal, Allahabad, here-in-after called
as 'CAT' in five connected Original
Application Numbers (here-in-after called
as 'OA') 1038/98, 1012/98, 789/99,
802/99, 812/99 which were disposed of
by
the
common
judgment
dated
12.2.2001, aforesaid.

2. These five OA Nos., mentioned
above, were filed by the employees of
Bharat
Sanchar
Nigam,
which
had
cancelled their selection and appointment
to the post of Stenographer, Grade III, in
the Bharat Sanchar Nigam Ltd.. True
copy of the OA filed by the respondent
no. 1, is annexure no. 3 to the writ
petition.

3. The applicant employees prayed
before the Tribunal that the order of
cancellation
of
their
selections/appointments as Stenographers,
Grade III be quashed.

4. The relevant facts of the case are
that an advertisement no. 3/93 was
published in the newspapers by the Chief
General Manager, Telecommunications,
Lucknow calling for applications for the
said posts. About 4000-5000 candidates
applied, though the applications were not
invited
through
the
Employment
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527
Exchange, but a clause was incorporated
in the advertisement that only those
applicants will be considered who are
registered
with
the
Employment
Exchange.

5. The first test was held on
14th/15th
April,
1995.
Those
who
qualified in the test were directed to
appear in the short-hand test held on
20th/21st January, 1996. The result was
declared on 15th March. The successful
candidates, after Medical Examination
and
verification
were
offered
appointments and joined on various dates
in the month of June/July, 1996. The
applicants were successful candidates and
they continued to work for more than two
years, when a notice dated 12.9.98 (vide
Annexure A-12 to the OA filed before the
Tribunal, which is Annexure 3 to the
petition) was published in Hindi Daily
Newspaper, Kanpur edition, notifying that
the
Chief
General
Manager,
Telecommunications,
Lucknow
has
cancelled the appointments on the sole
ground that the selection was not done by
the Staff Selection Commission.

6. Subsequently, the services of all
the applicants were terminated by order
dated 30.6.1999 (vide Annexure 2 to the
writ petition) by one month's notice. This
impugned order was challenged by the
employees before the CAT by the
aforesaid five OAs. The CAT allowed all
the five OAs and set aside the impugned
order of termination. The Bharat Sanchar
Nigam Ltd., has filed this and four other
writ petitions before this Court. All these
five writ petitions have been heard and
are being decided by this court by this
common
judgement,
as
common
questions of facts and law are involved.

7. On behalf of the petitioners, it
was urged that the selection was against
the Rules and the appointments were
temporary in nature and hence the Bharat
Sanchar Nigam has a right to terminate
the services of the respondents without
giving
any
show-cause
notice
or
opportunity of hearing.

8. Heard learned counsel for both
the parties.

9. There is no dispute that the Bharat
Sanchar Nigam Ltd., has not framed
statutory Rules for recruitment for the
post of Stenographer, Grade III, and that
the recruitment for on the said post is
governed by executive instructions, issued
by the Government of India from time to
time. There is also no dispute that all the
applicants were qualified and there is no
allegation
of
any
fraud
or
misrepresentation in appointments of the
employees.

10. From the record, it appears that
Parliament by a resolution established the
Staff Selection Commission for selection
of staff of various departments including
the department of Tele-communications.
The Government of India, thereafter,
issued instructions for recruitment of
staff, which are annexed with Petition
Nos.
20440/2001,
20433/2001,
20460/2001,
20459/2001
and
20438/2001. 123 posts of Stenographers
were lying vacant in the Bharat Sanchar
Nigam Ltd., as is evident from the letter
dated 7.1.1993. Copy of the letter dated
7.1.1993 is Annexure A-3 to the OA filed
before the Tribunal (Annexure 3 to the
writ
petition).
The
department
of
Telecommunication informed the Staff
Selection
Commission
about
the
vacancies for making recruitment by
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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letters
dated
6.3.1991,
10.11.1991,
10.12.1991,
7.1.1992,
5.2.1992
and
7.1.1993
but
the
Staff
Selection
Commission
failed
to
make
any
recommendation for 33 posts, which were
to be filled up by any recommendation for
33 posts, which were to be filled up by
recruitment by outside candidates.

11. Sri N. Vittal, an Officer on
Special Duty visited the office of the
General Manager, Telecommunication,
Lucknow on 21st September, 1993, vide
para 6 of the Counter Affidavit of
respondent no. 1. He issued a note to the
D.D.G.(E)/D.D.G. (Personal), U.P. Circle,
Lucknow
directing
him
to
recruit
candidates from outside, by getting
names from the Employment Exchanges,
provided there was no ban existing on
filling up of the post of Stenographers at
the Circle level, vide Annexure C.A.-3.

12. Thereafter the Chief General
Manager requested the Staff Selection
Commission by letter, dated 26.10.1993
(vide Annexure C.A.-4) to recommend
names of suitable candidates for the posts
but no recommendation was received
from the Staff Selection Commission.
Hence he issued the advertisement no.
3/93 inviting applications from the open
market for appointments to the posts of
Stenographers, Grade III.

13. The Chief General Manager,
Telecom, Lucknow by his letter dated
19.1.1994
(vide
Annexure
C.A.-5)
informed the Heads of Telecom Circles
and Administrative Officers inter-alia as
under:

"SUBJECT: Filling up of vacant post of
Stenographer.

Sir,

Kindly refer to this office letter No.
27.1./87-TE-II dated 11.7.1991 for the
recruitment from the open market in any
of the existing of restructured cadres of
Group 'C' and 'D', except in the cadre of
JTO has been banned.

2.
In view of the request received from
the various field units seeking permission
for filling up of existing vacancies in the
cadre of Stenographers, the existing
instructions issued vide this office letter
referred to above have been received.
Accordingly, I am directed to convey the
approval of Telecom Commission for
relaxation of the ban order in the extent of
filling up of vacant posts of Stenographers
Grade III as a one time measure. Wide
publicity should be given amongst the
departmental employees for filling up the
existing posts of Stenographers. It may
also be ensured that direct recruitment
from the open market should be restored
to only if suitable persons are not
available within the department and that
this should be limited to the essential
minimum no of stenographers needed for
their work."

14. The above letter shows that the
ban order was relaxed provided wide
publicity for recruitment from open
market was given. After holding the
selection, the Assistant Director, Telecom
(Recruitment) informed the concerned
officers, that a departmental examination
has been organized on 19.8.1994 but only
two candidates appeared. He again sent a
letter dated 12.02.96, which reads as
under:

"SUBJECT: Filling up of vacant posts of
Stenographers.
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2 All] Bharat Sanchar Nigam Ltd. V. Brij Mohan Srivastava and another
529

Kindly refer to this office letter no.
even dated 19.1.1994 on the subject noted
above vide which the circles were given
permission to resort to direct recruitment
of Stenographers from the open market in
relaxation of the ban orders. The said
permission was given only as a one time
measure and to meet only the most
pressing requirements.

The departments have objected to the
direct
recruitment
of
Stenographers
instead of following the prescribed
procedure of recruitment through Staff
Selection Commission.

In view of the above, no further
recruitment from the open market should
be restored to. Only the prescribed
procedure for recruitment through Staff
Selection Commission may be followed.
The number of Stenographers recruited in
terms of this office letter dated 19.1.1994
may be intimated to this office letter dated
19.1.1994 may be intimated to this office.
The details of section taken to approach
the SSC before the recruitment from open
market was restored to may also kindly be
intimated alongwith the reply, if any,
received from the SSC.

The above information may please
be sent by FAX within 10 days positively.

Sd/-B.S. Verma

Director(TE)"

15. Copy of the letter is Annexure
C.A.-3 to the petitioner's counter affidavit
filed before the Tribunal. It appears that
copy of this letter dated 12.2.1996 is not
on the record of this petition, but it is on
the scerred of connected writ petition no.
20460/2001, where it is Annexure 4 to the
said writ petition No.20460/2001.

16. Another important letter dated
5.2.1998 was sent by the Chief General
Manager, which narrates the entire history
of this recruitment, is quoted below:

"SUBJECT: Filling up the vacant posts
of Stenographers Grade III.

REF: Dir(TE) DOT No: 2-4-/93 TE II da.
19.98 and D.O.No. 2-45/96-VM-II dt.
10.11.1997.

1.
This is in connection with the
regularization
case
of
examination/selection
of
Stenographer
Grade III from open market. The details
of the case has already been reported to
Shri P.S. Dhillon, Director (TE) through
the D.O. letter of Shri D.P. Mishra, Dy.
G.M.(A) of his office letter No. Rectt/M47/TA/92/5 dated 19.12.97. Now keeping
in view the Directorate instructions,
which have been communicated to me
(copy enclosed) through D.O. letter of
Shri Ashutosh Pandey, Director (VM)
referred above, the instant case has since
been examined and my observations on
the subject are given below:

2.
In this regard, I would like to
mention that there was acute shortage of
Stenographers in U.P. (E) Circle. Against
123 posts of Stenographers Grade III,
only 57 were working and 66 of acute
shortage of Stenographers in the circle.

3.
Shri N. Vittal, the then OSD
Telecom Commission during his visit to
Lucknow
could
guess
the
pathetic
situation and keeping in view the earnest
requirement of stenographers had kindly
granted the permission to recruit the
Stenographers in the interest of service.
The recruitment process was started on
specific instructions of Shri N. Vittal, the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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then OSD Telecom Commission. His
decision was conveyed to this office vide
his letter dated 24.9.93, which was later
on confirmed by DOT letter dated
19.1.1994. Accordingly, the examination
was conducted and result was declared
vide this office letter dated 19.3.96 and
total 29 candidates were selected through
the said letter dated 19.3.96 and amongst
them 12 candidates were allotted to
U.P.(W) Circle which was lower in the
merit and 07 out of them were appointed
as Stenographer Gr. III and they were still
working in U.P. (W) Circle while 12
candidates were allotted to this Circle but
none of them was given appointment in
view of complaints regarding using unfair
means
in
the
examination
by
the
Candidates.
The
complaint
was
investigated by vigilance section of DOT
and per enquiry report, it has been found
that amongst 29 selected candidates only
two candidates were found guilty by using
unfair means and none else. Among the
candidates who have not been given
appointments 15 candidates have filed
cases in CAT Lucknow/Allahabad and
High Court, Lucknow.

4.
It is agreed that Dtc. Vide letter
No.9-4/93-TE-II
dated
12.2.96
has
communicated that no further recruitment
should be resorted to from open market,
but the same could not be operated in this
examination as there was acute shortage
of Stenographers in this Circle and the
result of successful candidates was
declared and it was not possible to cancel
the whole process at this belated stage.
However, in the above mentioned letter of
dated 12.2.96 the Directorate has also
instructed
to
send
the
list
of
Stenographers already recruited in terms
of
their
letter
dated
19.1.94.
In
compliance with the directions of the
Dtc., conveyed through letter dated
12.2.96 a list of total 29 selected
candidates for the post of Stenographers
Grade III was sent to Shri B.S. Verma the
then Director (TE) through letter No.
Rectt/M-47/TA/92/5 dt. 30.4.96 and since
then the matter continuously being taken
up with the Directorate for regularization
of selection.

5.
In letter No. 9-4/93-TE-II dated
19.1.98 the Director (TE) Sri Dhillon has
termed this selection illegal. Here I would
like to mention very specifically that the
said 'illegal selection' was only started
when the then Chairman Shri Vittal has
intiated the same in the best interest of
service.

6.
Apparently, the existing so-called
legal procedures for recruitment of
Stenographers
centrally
for
a
large
country like ours is totally improper. That
is why inspite of so much of shortage,
much of unemployment we are failing to
get the recruitment done and suffering
from inefficiency. Therefore, there is
immediate need for intervention of
Telecom Commission as the power is
vested with the Telecom Commission,
Govt. of India to reverse and adopt the
procedure initiated by Shri Vittal, the then
Secretary, Telecommunications.

7.
I very strongly recommend that the
said selection must be regularized by
giving
special
one
time
relaxation,
keeping in view not only the earnest need
of Stenographers in our circle but also
probability of generation of several court
cases if the said selection would be
cancelled.

8.
Seeing the present need of the
Stenographer in the department and
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2 All] Bharat Sanchar Nigam Ltd. V. Brij Mohan Srivastava and another
531
further consequences of cancellation of
whole examination undersigned feels that
it would not be proper to cancel the
examination as a whole at this belated
stage, therefore, the examination as a
whole is not being cancelled. Only the
candidates who have been selected and
appointed because of using unfair means
in the examination, their candidature shall
be cancelled after observing required
departmental procedure.

(Sd./-Shabbir Ahmed)
Chief General Manager
Telecom Eastern U.P.
Telecom Circle, Lucknow"

17. Copy of this letter is Annexure
C.A.-XIII-B to the writ petition.

18. Thus it is clear that recruitment
through Staff Selection Commission was
relaxed
due
to
acute
shortage
of
Stenographers and urgent need of the
department due to inaction of the Staff
Selection Commission in recommending
names of candidates for the posts of
Stenographers
inspite
of
requisitions
made
repeatedly
from
6.3.1991
to
7.1.1973 and its utter failure to discharge
the its duties. Hence the Telecom
Department
rightly
carried
out
the
selections on the basis of one time
exception.

19. In these circumstances, we are of
the opinion that the selection made by the
department cannot be said to be illegal or
without authority, and the candidates who
were selected had been continuously
working. In our opinion, the selection is
not tainted by fraud or misrepresentation.

20. The jurisdiction under Article
226 of the Constitution of India is
tempered with equity. The Apex Court in
several cases has held that equitable
considerations should also be kept in
mind while deciding the cases, and
appointments
made
pursuant
to
a
selection
need
not
necessarily
be
disturbed
on
technical
grounds.
References can be made to the cases of:

1.
Ram Swarup Vs. State of Hayana,
1979 (1) SCC 168
2.
District Collector Vs. Vidanagam
Social Welfare Residential School Society
Versus Tripura Sudari Devi, 1990 (3)
SCC 655
3.
H.C. Putta Swamy versus Hon'ble
Chief Justice, Karnataka High Court 1991
Supp.(2) SCC 421.

These cases have been followed in a
recent judgment of the Apex Court in AIR
2001 1176 Buddhi Nath Chaudhary vs.
Abahi Kumar.

21. Learned counsel for the
petitioner
has
contended
that
the
appointments made in this case amounted
to back-door entries.

22. We do not agree. It was the
persistent inaction of the Staff Selection
Commission which led to this situation.
After all, the work of the Corporation had
to go on, and it could not be stopped due
to the lethargy of others.

23. Learned counsel for the
respondents has referred to the case of
K.A. Abdul Majeed Versus State of
Kerala 2001 (6) SCC 292 in which the
Apex Court has held that where the
appointment was made after selection
pursuant to an advertisement, though not
made
through
the
Public
Service
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
532
Commission, it would not be said to be an
appointment through back-door.

24. So far as the question of
termination on the ground of temporary
nature of appointment is concerned, we
are of the opinion that even a temporary
appointment
cannot
be
cancelled
arbitrarily at the whims of the authority
and without a valid reason. If the
appointment
is
cancelled
arbitrarily
without a valid reason and without
following principles of natural justice,
such an action is arbitrary and capricious
and is hit by Article 14 of the Constitution
of India and has to be struck down. It has
been held by the Supreme Court in
Maneka Gandhi vs. Union of India, AIR
1978 SC 597 that arbitrariness violates
Article 14 of the Constitution of India.

25. We see no reason to interfere
with the view taken by the CAT.
Accordingly, all the five writ petition nos.
20440/2001, 20433/2001, 20460/2001,
20459/2001
and
20438/2001
are
dismissed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.7.2002

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 26639 of 2002

Committee
of
Management,
Shiksha
Prasar Samiti and another ...Petitioners
Versus
Deputy Registrar, Firms Societies and
Chits and another
 ...Respondents

Counsel for the Petitioners:
Sri S.D. Shukla
Sri Ashok Khare

Counsel for the Respondents:
Sri Santosh Kumar Srivastava
Sri V.K. Shukla
S.C.

Societies Registration Act-Section 25(2)-
fraud vitiates most solemn proceeding
and as and when it is brought to the
notice of any authority, the benefit
derived by any party can be always
recalled. (Held in para 12).

As
respondent
no.
1
has
passed
impugned order after recording clear
finding that petitioner has succeeded in
obtaining
renewal
certificate
after
concealing the fact and by playing fraud
in the matter, this Court feels that
respondent no. 1 is well within his
jurisdiction in passing the impugned
order.
Case Law Referred:
AIR 1988 Alld. 236
1996 I UPLBEC, 413
1970 AWR 775
1993 ACJ 152
AIR 1991 SC 909

(Delivered by Hon'ble S.K. Singh, J.)

1. Challenge in this petition is the
order dated 27.6.2002 (Annexure-11 to
the writ petition) passed by the respondent
no. 1 in exercise of powers as conferred
under Section 25 (2) of the Societies
Registration Act for holding elections to
elect office bearers of the society.

2. Learned counsel for the parties
have been heard at admission stage.

3. There is a society known as
Shiksha Prasad Samiti registered under
the Societies Registration Act, 1860 at
Mhammadabad Gohna, District Mau. It
has its registered bye laws which govern
the management of the society. Under the
bye laws the terms of the committee of