Case Note & Summary
The petitioner, Nilesh Triyambak Pasarkar, applied for the post of Junior Clerk in response to an advertisement dated 8.7.2013 issued by the Bombay High Court for clerical positions in subordinate courts. He was placed at serial No.9 in the waitlist of 104 candidates for Clerk-Typist in the Bombay City Civil and Sessions Court, notified on 17.11.2014. The waitlist was initially valid for two years and was extended twice, lastly until 30.10.2018. On 5.10.2017, the petitioner was offered appointment subject to terms and conditions, including verification of antecedents. During verification, it was found that the petitioner had been arrested in a criminal case (C.R. No. 112/2012 under Sections 143, 147, 148, 149, 307, 326, 427, 504, 506 of IPC) but was released on bail and the case was pending. The petitioner had not disclosed this arrest in the attestation form. The In-Charge Principal Judge, City Civil Court, Bombay, by communication dated 3.3.2018, conveyed the High Court's decision not to allow the petitioner to join duty. The petitioner challenged this communication. The court held that the denial of appointment without communicating the adverse material (the arrest and pending case) to the petitioner violated principles of natural justice. Further, the non-disclosure of the arrest did not amount to suppression of material facts as the arrest was not relevant to the post and the petitioner had no intention to conceal. The court quashed the impugned communication and directed the respondents to consider the petitioner's appointment from the waitlist within four weeks.
Headnote
A) Service Law - Appointment from Waitlist - Right to be Considered - A candidate on a valid waitlist has a right to be considered for appointment as vacancies arise, and the employer cannot arbitrarily deny appointment without valid reasons. (Paras 1-3) B) Service Law - Selection Process - Non-Communication of Adverse Material - Principles of Natural Justice - Where the selection authority relies on adverse material (such as a pending criminal case or arrest) to deny appointment, such material must be communicated to the candidate to enable a response; failure to do so vitiates the decision. (Paras 4-6) C) Service Law - Suppression of Material Facts - Attestation Form - Non-disclosure of an arrest that did not lead to conviction and was not relevant to the post does not amount to suppression of material facts warranting denial of appointment. (Paras 7-9)
Issue of Consideration
Whether the denial of appointment to the petitioner based on non-disclosure of an arrest in the attestation form, without communicating the adverse material to him, is sustainable in law.
Final Decision
The impugned communication dated 3.3.2018 is quashed and set aside. The respondents are directed to consider the petitioner's appointment from the waitlist within four weeks from the date of the judgment.
Law Points
- Right to be considered for appointment from valid waitlist
- non-communication of adverse material in selection process
- distinction between suppression and non-disclosure of irrelevant information
- scope of judicial review in selection matters
