Allahabad High Court
Smt. Fatma Parveen And Others vs State Of U.P. And Others on 25 May, 2000
Equivalent citations: 2000(3)AWC2377, (2000)3UPLBEC2075
Author: Bhagwan Din
Bench: Bhagwan Din
JUDGMENT Bhagwan Din, J.
1. The State Government (Respondent No. 1) took a policy decision to appoint in the year 1995-96 about 5.000 Urdu Assistant Teachers in the Primary/ Upgraded Primary Schools, established and managed by the U. P. Basic Shiksha Parlshad. In this regard, a Government order No. 2709/15.5.95-75/95, dated 21.7.1995 was issued, providing that such appointments shall be made under the provisions of U. P. Basic Shiksha Adhyapak (Sewa Niyamawall), 1981 in pursuant to the aforesaid policy decision. The District Basic Shiksha Adhlkarl Issued a notice, published on 6.8.1995 in dally newspaper Amar Ujala. Meerut. Inviting applications for appointment on the posts of Urdu Assistant Teacher. A number of candidates applied for. After scrutiny, those found suitable, were allowed to appear in the competitive examination held on 10.9.1995. After evaluation of the performance in the competitive examination, a list of successful candidates was published on 15.9.1995. But, the appointment letters were not issued to the selected candidates for quite a long time, therefore, by means of this petition under Article 226 of the Constitution of India, the petitioners sought for a writ in the nature of mandamus directing the District Magistrate, Saharanpur, the respondent No. 5 and the Basic Shiksha Adhlkarl, Saharanpur, respondent No. 6 to Issue appointment letters to the petitioners.
2. Initially, this petition was filed by four petitioners, but later on. 10 others Joined the suit. They have been impleaded as petitioner Nos. 5 to 14.
3. During the pendency of the petition, the petitioners could know.
that the District Magistrate, respondent No. 5 had already cancelled the selection list by order dated 11.10.1995 and fresh notice Inviting applications for appointment on the post of Urdu Assistant Teacher in the district has been Issued. Therefore, they sought, by amendment, to add in the prayer clause to the effect that :
"to Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11.10.1995 passed by the respondent No. 5 and the advertisement dated 13.9.1998 Issued by respondent No. 6."
4. Mohd. Aslam, the petitioner No. 2 filed a rejoinder-affidavit in the Court after serving a copy thereof on the Chief Standing Counsel. On receipt of the rejoinder-affidavit. It was believed that the counter-affidavit must have been filed by the respondents in the office. So a direction to the office was made for tracing out the counter-affidavit and placing the same on record. The office on 6.3.2000 reported that no counter-affidavit has been filed by the respondents. So much so, there is no entry of receipt in the progress register. It appears that the respondents after supplying a copy of the counter-affidavit to the petitioners' counsel, did not file the same in the Registry. Since no one was present on that date on behalf of the respondents, therefore, no orders could be passed and the petition was directed to be listed on next day. On the next day also, no one was present for the respondents, therefore, the matter was again directed to be listed on the next day. One Sri Fahim Ahmad, holding brief of Sri S. G. Hasnain, the counsel for respondent Nos. 4 and 6 appeared on 9.3.2000 and he was informed that on 13,3.2000 the case will be taken up for admission/hearing. On the said date, the lawyers were on strike, therefore, the matter was taken up on 30.3.2000. Learned standing counsel appeared for respondent Nos. 1, 2 and 5 but did not file even the copy of the counter-affidavit supposed to have had been filed by the respondents in the Registry. None was present representing the respondent Nos. 4 and 6. Thus, the petition has not been contested by the respondents.
5. The grievance in this petition is mainly against respondent Nos. 5 and 6. But none has come forward to oppose the petition. 1 heard the counsel for the petitioners. For want of Instructions and the counter-affidavit, on record, the learned standing counsel, was not in a position to controvert the assertions made in the petition and the submissions offered by the counsel for the petitioners.
6. The admitted facts, as it appears from the record, are :
(1) That the State Government took a policy decision to appoint Urdu Assistant Teachers in Primary Schools, established by the U. P. Basic Shiksha Parishad.
(2) That the Baste Shiksha Adhlkari, respondent No. 6 issued a notice in the daily newspaper Amar Ujala Inviting the applications for appointment on the post of Urdu Assistant Teacher in Primary Schools in District Saharanpur.
(3) That a number of candidates. Including the petitioners did appear in the competitive test held on 10.9.1995 and after evaluation of the performance of the candidates in the competitive test, a list of selected candidates, contained in Annexure-4 to the writ petition, was published on 15.9.1995, and (4) That the District Magistrate. Saharanpur, respondent No. 5 cancelled the selection list by order dated 11.1.1995.
7. The sole contention of the learned counsel appearing for the petitioner is that the act of the respondent No. 5, cancelling the selection list, is arbitrary and in violation of the settled norms and the standard. It is submitted by him that the Basic Shtksha Adhlkari was the member of the Committee constituted for selection of the Urdu Assistant Teacher for their appointment in the Primary Schools in the district, the District Magistrate on the sole ground that the Basic Shiksha Adhtkari orally Informed that some basic errors have been committed in the selection of the candidates for appointment as Urdu Assistant Teachers, cancelled the selection list, without holding enquiry that the selection has been vitiated on account of the violation of the Rules or for the reason that it smacks of corruption, favouritism, nepotism or the alike.
8. Hon'ble Supreme Court in Dr. Mukherjee v. Union of India and others. JT 1993 (5) SC 439, has held that :
"In the backdrop of these facts, this Court, while repelling the extreme submission that the Government as the appointing authority wields absolute power to approve or disapprove of the list at Its sweet-will, observed, that where the Government is satisfied after due enquiry that the selection has been vitiated on account of violation of Rules or for the reason that it smacks of corruption, favouritism, nepotism or the alike, it may refuse to approve the list in which case it must record the reasons for its action and produce the same in Court."
9. Similarly in the case of Bhag wan Parshu Ram College and another v. State of Haryana and others, JT 1999 (10) SC 29, the Hon'ble Supreme Court has held that :
"It is no doubt true that the position in law is that a selection process commenced for an appointment may be cancelled or stopped at any stage or not completed by appointment of the selected candidate but such action can be attacked as arbitrary or mala fide."
10. In the instant case, the petitioners appeared in the competitive test and the Committee found them suitable for appointment as Urdu Assistant Teacher in the Primary Schools and, therefore, declared them successful. The District Magistrate whimsically giving a lame reference to the conversation with the Basic Shiksha Adhikari, respondent No. 6, cancelled the selection list and refused to Issue appointment letter to the petitioners and other selected candidates shown in the select list, contained in Annexure-4 to the writ petition. The respondents have not produced any document or record demonstrating the bona fide of the respondent No. 5 that he enquired into the matter and found some Irregularity in the selection of the candidates and that there smacked some corruption or favouritism. The respondent Nos. 5 and 6 have not shown a good conduct in the Court also- They have not filed the counter-affidavit in the registry after supplying the copy of the same to the petitioners' counsel. I am unable to understand as to why they did not place the same in the Court for perusal. What transpires from the conduct of the respondents is that they have nothing on record to show the Court that the order of cancellation of the selection list of Urdu Assistant Teacher was based on sound reasons and that it was so done after enquiry and the respondent No. 5 was satisfied that some Irregularity has been committed or the Rules providing for selection has been violated. In such state of circumstances and having regard to the observations of the Hon'ble Supreme Court, quoted above, no other view, except that the respondent No. 5 has arbitrarily and with mala fide Intention cancelled the selection list by the impugned order dated 11.10.1995, can be taken. Therefore, it deserves to be quashed.
11. The writ petition is allowed. The Impugned order dated 11.10.1995 is hereby quashed. The respondent Nos, 5 and 6 are directed to Issue appointment letters to all the candidates whose names appear in the selection list, contained in Annexure-4 to the writ petition.