Allahabad High Court
Ajit Singh Patel And 10 Others vs State Of U.P. And 3 Others on 28 November, 2017
Bench: Pankaj Mithal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 26.10.2017 Delivered on 28.11.2017 Court No. - 3 Case :- WRIT - A No. - 37143 of 2017 Petitioner :- Ajit Singh Patel And 10 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 37588 of 2017 Petitioner :- Shivam Kumar Nayak And 13 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pradeep Kumar Upadhyay,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 39070 of 2017 Petitioner :- Praveen Kumar Gautam Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 39435 of 2017 Petitioner :- Anand Mishra And 8 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ayush Khanna Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 41415 of 2017 Petitioner :- Mohammad Shams Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pratik Chandra,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 41421 of 2017 Petitioner :- Syed Ahmad Ali Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pratik Chandra,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 41427 of 2017 Petitioner :- Kailash Vishwakarma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pratik Chandra,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 43802 of 2017 Petitioner :- Samrah Ahmad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 44805 of 2017 Petitioner :- Rajesh Kumar And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pradeep Kumar Upadhyay,Ashok Khare Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai With Case :- WRIT - A No. - 47444 of 2017 Petitioner :- Abhishek Kumar Singh And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Dhirendra Kumar Singh Rat Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai Hon'ble Pankaj Mithal,J.
Hon'ble Irshad Ali,J.
(Delivered by Irshad Ali,J.) Heard Sri Ashok Khare Senior Advocate assisted by Sri Siddharth Khare, learned Standing counsel appears for respondent no. 1 and Sri R.K. Ojha, Senior Advocate assisted by Sri Vimlesh Kumar Rai appeared on behalf of respondent nos. 2, 3 and 4.
The Bunch of the writ petitions are directed against an order dated 11.8.2017 passed by Chief Engineer (Establishment-2-1), U.P. Jal Nigam, Lucknow. The selection and appointment of Assistant Engineer (Civil); Assistant Engineer (Electrical / Mechanical) and Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics) have been cancelled.
The order dated 11.8.2017 has been preceded by a decision of Board of Directors taken in its 166th meeting on 26.7.2017 vide Item No. 166.19.02 pursuant to agenda dated 25.7.2017.
The selection proceedings for the selection and appointment in the aforesaid disciplines were initiated in pursuance to an advertisement dated 19.11.2016 issued by the Superintending Engineer (Establishment-2-1), U.P. Jal Nigam, Lucknow whereby applications had been invited for filing up 113 posts of Assistant Engineer (Civil); 5 posts of Assistant Engineer (Electrical / Mechanical) and 4 posts of Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics). In pursuance to the advertisement issued by the Superintending Engineer, the petitioners applied for and on the basis of comprised of computer based test followed by an interview selection proceeding stood concluded. The final select list was published on 3.1.2017 and on the same date the appointment orders have been issued to the petitioners and other similarly situated candidates. In the aforesaid selection proceedings, the petitioners have been selected and in pursuance thereof appointment letters were issued to them and after joining they started work in the department of the respondent. The selection and appointment of the petitioners stand cancelled under the order dated 11.8.2017 passed by the Chief Engineer (Establishment-2-1), U.P. Jal Nigam, Lucknow.
Writ-A No. 37143 of 2017 (Ajit Singh Patel & others Vs. State of U.P. & others); Writ-A No. 37588 of 2017 (Shivam Kumar Nayak & others Vs. State of U.P. & others); Writ-A No. 39435 of 2017 (Anand Mishra & others Vs. State of U.P. & others); Writ-A No. 47444 of 2017 (Abhishek Kumar Singh & others Vs. State of U.P. & others) have been filed by the Assistant Engineer (Civil).
Writ-A No. 39707 of 2017 (Praveen Kumar Gautam Vs. State of U.P. & others); Writ-A No. 41415 of 2017 (Mohd. Shams Vs. State of U.P. & others); Writ-A No. 41421 of 2017 (Syed Ahmad Ali Vs. State of U.P. & others); Writ-A No. 41427 of 2017 (Kailash Vishwakarma Vs. State of U.P. & others) and Writ-A No. 43802 of 2017 (Samrah Ahmad Vs. State of U.P. & others) have been filed by Assistant Engineer (Electrical / Mechanical).
Writ-A No. 44805 of 2017 (Rajesh Kumar and others Vs. State of U.P. & others) has been filed by Assistant Engineer (Computer Science / Electronics & Communication / Electrical & Electronics) The impugned order dated 11.8.2017 is a common order pertaining to all the three disciplines in which appointments have been made. The impugned order specifies the grounds of cancellation i.e. (a) 7 questions were defective; (b) The correct answer indicated in the answer key with regard to 20 questions were incorrect.
Moreover, it has been further taken note that the permission had been granted for filing up 122 posts of Assistant Engineer by the State Government vide Government Order dated 16.11.2016, a fresh permission was necessary to have been obtained from the Finance Department in pursuance to the Government Order dated 13.12.2016. It has also been taken note that the result of the selection was declared on 3.1.2017, appointment orders were issued on the same day. The selected candidates joined on the respective posts till 16.1.2017, even though the model code of conduct stood enforced from 4.1.2017 on account of declaration of the State Assembly elections.
The aforesaid three grounds of cancellation are common to the entire selection. Apart from the aforesaid a specific ground has been mentioned for cancellation of selection of Assistant Engineer (Electrical / Mechanical) i.e. 4 candidates, namely, Mohd. Shams, Syed Ahmad Ali, Kailash Vishwakarma and Samrah Ahmad had identical response sheets in which even the incorrect answers were identical as well as with regard to the post of Assistant Engineer (Computer Science / Electronics & Communication / Electrical & Electronics) objection was taken that there does not exist any post of Assistant Engineer (Computer Science / Electronics & Communication / Electrical & Electronics) sanctioned in U.P. Jal Nigam. The selection against 4 such posts were made merely on the permission of the Chairman, U.P. Jal Nigam in contemplation of sanction by the Board of Directors. The sanction of Board of Director was accorded in a meeting held on 16.3.2017 but till date no approval has been accorded at the level of the State Government.
Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare submits that -
(1) The order impugned has been passed in complete violation of principal of natural justice and without being preceded by any notice to show cause nor the petitioner has been confronted at any point of time with several objections mentioned in the order under challenged.
Reliance is placed upon judgements noted below :-
(i) 1991 Supp. SCC 330 (Shrawan Kumar Jha Vs. State of Bihar).
(ii) 2002 (9) SCC 700 (Jaswant Singh Vs. State of M.P.)
(iii) 2006 (11) SCC 356 (Inderpreet Singh Kahlon Vs. State of Punjab)
(iv) 2014 (16) SCC 392 (Nisha Devi Vs. State of Himanchal Pradesh & others).
(v) 2017 (5) SCC 660 (Indian Institute of Information Technology Vs. Anurika Vaish).
(2) In proceeding to cancel selection proceedings and appointments it is incumbent upon the State Government to ensure that it is only the tainted part of the selection which is cancelled without affecting the selection and appointment of the untainted part. It is only in a case where the alleged irregularity is so intrinsically mixed up with the complete selection that order cancelling the entire selection would be passed. Reliance is placed upon under noted decisions :
(i) 2003 (7) SCC 285 (Union of India Vs. Rajesh P.U. Puthuvainikathu)
(ii) 2006 (11) SCC 356 (Inderpreet Singh Kahlon Vs. State of Punjab and others)
(iii) 2014 (6) SCC 644 (Jogendra Pal & others Vs. State of Punjab and others.
(3) The view of the respondents is that since some of the question papers were found to be defective and the answers in the answer key were found to be incorrect, the entire selection was liable to be cancelled. In noticing the aforesaid facts notice may be taken by this Hon'ble Court that the aforesaid mistakes do not pertain to one particular examination. There were written examination in three different subjects, namely Civil Engineering, Electrical, Mechanical Engineering and Computer Science / Electronics & Communication / Electrical & Electronics. The number of mistakes so specified cover all the aforesaid three examinations and there exists no indication as to how many questions / answers ultimately found to be erroneous pertain to which selection. Attention is further drawn to the fact that even with regard to the same subject on account of the large number of candidates, examinations were held in two shifts i.e. morning shift and evening shift respectively. Even apart from the aforesaid such discrepancy merely requires reevaluation of the answer sheets and the decision to cancel the entire selection proceedings is wholly incommensurate with the allegation. Reliance is placed upon under noted judgements :
2013 (4) SCC 690 (Rajesh Kumar & others Vs. State of Bihar & others.
It is further necessary to state that the petitioners do not admit the claim of the respondents that 7 questions were defective or the answer key to 20 questions were incorrect. In filling the rejoinder affidavit the petitioners have given full details with reference to Text Book to demonstrate that the answers treated to be correct in the key answers originally adopted for evaluation are, in fact, correct answers.
It is further claim of the petitioners that whatever mistake exists either in question paper or the answer sheet, the same has nothing to do with the petitioners who are bonafide candidates appearing in the selection, getting selected and having been appointed. On such account even in case any additional candidate is liable to be included in the select list, there does not exist any justification for proceeding to cancel the appointment of the petitioners or terminating their service. Reliance is placed upon under noted judgements :
(i) 2013 (4) SCC 690 (Rajesh Kumar & others Vs. State of Bihar and others)
(ii) 2013 (14) SCC 494 (Vikas Pratap Singh Vs. State of Chhatisgarh).
(4) In so far as the objection with regard to code of conduct having been enforced, it is necessary to state that the entire selection stood concluded with appointment orders having been issued on 3.1.2017, while the code of conduct came into play on 4.1.2017. Even otherwise a copy of the code of conduct has been annexed as Annexure-9 to the writ petition and a bare perusal thereof would demonstrate that the same contains no prohibition against grant of appointment on the basis of regular selection proceedings. Whatever, prohibition exists therein is with regard to grant of ad-hoc appointment with object of influencing the elections.
(5) The objection contained in the order impugned that despite permission having been accorded for filling up 122 posts of Assistant Engineer by Government Order Dated 16.11.2016 and consequent advertisement, fresh permission was necessary from the Finance Department in terms of Government Order dated 13.12.2016. Suffice it to state that the said objection is wholly inappropriate. The selection proceedings were permitted to be held under Government order dated 16.11.2016 and the selection proceedings stood initiated by advertisement dated 19.11.2016 issued by the Superintending Engineer (Estt.-2-1), U.P. Jal Nigam, Lucknow. The Government Order dated 13.12.2016 is of prospective operation to be applicable to recruitment proceedings initiated thereafter. The said Government Order in no manner nullifies the selection proceedings already initiated vide advertisement dated 19.11.2016 in pursuance to permission granted by Government Order dated 16.11.2016.
It is settled law that selection proceedings once initiated are required to be concluded in accordance with law applicable at the time of advertisement. Subsequent policy decisions do not affect pending selection proceedings. Attention is drawn in this regard to the under noted decisions :-
(i) 1983 (3) SCC 33 (A.A. Calton Vs. Director of Education)
(ii) 1990 (1) SCC 411 (P. Mahendran Vs. State of Karnataka)
(iii) 1990 (3) SCC 157 (N.T. Devin Katti Vs. Karnataka Public Service Commission)
(iv) 2007 (10) SCC 627 (Sonia Vs. Oriental Insurance Co. Ltd.
The facts in the case of Sonia Vs. Oriental Insurance Co. Ltd. may be taken notice of as in the said case the selection proceedings commenced at a point of time when SC/ST post could be inter-changeably filled up. However, shortly after the advertisement a prohibition came into existence against such a conversion between SC/ST posts. Despite such prohibition the Supreme Court held that the proceedings having been initiated prior to the said prohibition against conversion of post, the selection had to be concluded in accordance with law originally existing.
(6) The objection with regard to Assistant Engineer (Electrical / Mechanical) is an objection pertaining to selection of 5 persons upon an allegation of response sheet of 4 persons being identically. Firstly, there exists no such allegation pertaining to Praveen Kumar Gautam, the petitioner in Writ-A No. 39707 of 2017. Further allegation of any fraud / unfair means with regard to the remaining 4 candidates stands ruled out, as 4 candidates had appeared in the written examination from examination centers in different districts. Out of the said 4, only 2 candidates appeared from examination center in the same district. In view of the said fact the identity of the response sheet of the 4 candidates is attributable to the course curriculum / books on the basis of which they had studied for appearing in the examination.
(7) The objection with regard to 4 appointments of Assistant Engineer (Computer Science / Electronics & Communication / Electrical & Electronics) is a misplaced objection. A perusal of the Government Order dated 16.11.2016 granted permission would demonstrate that permission was granted for filling up 113 posts of Assistant Engineer (Civil) and 9 posts of Assistant Engineer (Electrical / Mechanical) thereby totaling 122 posts. A perusal of the advertisement would demonstrate that the advertisement in no manner exists the aforesaid 122 posts for which permission was granted. However, the advertisement proceeded to bifurcate the 9 posts of Assistant Engineer (Electrical / Mechanical) into 5 posts of Assistant Engineer ((Electrical / Mechanical) and 4 posts of Assistant Engineer (Computer Science / Electronics & Communication / Electrical & Electronics). The order impugned dated 11.8.2017 also acknowledges the fact that the permission was granted for filling up 122 posts. The only thing which has been done in issuing the advertisement is that out of 9 posts of Assistant Engineer (Electrical / Mechanical) a decision was taken with the permission of the Chairman for filling up 4 posts by appointment of Assistant Engineer in the discipline of Computer Science / Electronics & Communication / Electrical & Electronics. The said decision has subsequently been ratified by the Board of Director. Such alternation is fully authorized in terms of the Uttar Pradesh Jal Nigam Engineers (Public Health Branch) Seva Viniyawali, 1978.
On the other hand Sri R.K. Ojha learned counsel for the respondents submits that under the directions issued by the Board of Directors U.P. Jal Nigam to take appropriate action in regard to the selection and appointment of the Engineers initiated in pursuance to the advertisement issued on 19.11.2016, the selection proceeding has been completed in a very hurried manner in collusion with the petitioners with malafide.
The answer key and response-sheet was neither published after declaration of result of C.B.T. neither prior to call the candidates for interview nor the final result of the same was published as such the entire selection proceedings was non-transparent and unfair.
Learned counsel for the respondent submits that the tenure of the respondent nos. 4, 3 and 2 came to an end on 31.01.2017, 28.2.2017 and in March 2017 respectively as such the authority could not have issued appointment letters to the selected candidates as such it is fraud committed in planned manner.
The next argument of learned counsel for the respondents is that a report was submitted by Aptech Ltd. Mumbai on 22.07.2017 and it was reported that in first shift of C.B.T of Assistant Engineer (Civil), 01 question was found incorrect and option of answers of 09 questions were found incorrect and in second shift 03 question were found incorrect and option of answers of 03 questions were found incorrect and on the basis of the said report a corrected list was prepared then 87 new candidates were found to be eligible for interview on the post of Assistant Engineer (Civil) and 130 candidates, who were earlier selected for interview were not found eligible and 26 candidates out of 113 candidates, who had finally been selected on the post of Assistant Engineer (Civil) are not being found eligible even for interview.
He further submitted that in C.B.T. of Assistant Engineer (Electrical and Mechanical) option of answer of 01 question was found incorrect and according to amended result against 5 posts of Assistant Engineer (Electrical and Mechanical), 6 new candidates are being found eligible for interview and 4 candidates, who had earlier been selected for interview are not being found eligible for interview. 02 candidates out of 05 candidates who had finally been selected are not being found eligible even for interview according to report dated 22.7.2017.
In regard to the C.B.T. of Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics), 03 questions were found incorrect and option of answer of 07 questions were found incorrect and according to amended list, 04 new candidates are being found for interview and 08 candidates who had earlier been selected for interview are not being found eligible for interview and 03 candidates out of 04 candidates, who had finally been selected are not being found eligible even for interview.
Last argument of learned counsel for the respondent Sri R.K. Ojha is that in the department of U.P. Jal Nigam, Lucknow no post of Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics) have been sanctioned by the State Government as such selection against the three posts of Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics) is wholly illegal and entire selection is vitiated in law due to unfair selection proceedings of the respondents. He has placed reliance upon the judgement which is being referred herein below :
2007 (8) SCC 264 (M.P. State Co-operative Bank Ltd. Bhopal Vs. Nanuram Yadav and others.
After concluding the arguments by the parties we made pointed quarry to the learned counsel for the respondents Sri R.K. Ojha that in the advertisement posts have been referred as 113 of the Assistant Engineer (Civil); 5 posts of Assistant Engineer (Electrical / Mechanical) and 4 posts Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics), if these are the temporary vacancies and have not been sanctioned by the State Government then on what basis the number of vacancies were determined and further quarry was made that whether in regard to the appointment against the temporary vacancies the reservation policy provided under the U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes And Other Backward Classes) Act, 1994 is applicable.
The argument advanced on the quarry so made Sri R.K. Ojha Senior Advocate submitted that the vacancies advertised vide advertisement dated 19.11.2016 are temporary vacancies and the reservation as provided under the Act, 1994 is applicable in regard to temporary vacancy also whether the posts are sanctioned or not and on the other point learned counsel for the respondents could not place material on what basis number of vacancies were determined and roster of the reservation was applied. On perusal of the advertisement on the face of it, it is evident that post of Assistant Engineer (Civil) has been shown to be 113 out of which 56 vacancies have been shown to be unreserved, 31 vacancies have been shown to be reserved for O.B.C., 24 vacancies for Scheduled caste and 2 vacancies for general category and out of 5 vacancies of the Assistant Engineer (Electrical / Mechanical) 3 posts were unreserved, 1 post for O.B.C. and 1 post for the scheduled caste and out of 4 vacancies of Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics) , 2 were unreserved, 1 for O.B.C. and 1 for scheduled caste. The aforesaid determination is not possible in case the details of sanctioned post are not available to the respondents. Further we have perused the record of the writ petition and on perusal of the records it is evident that vide Government Order dated 16.11.2016 the State Government accorded approval to fill up 122 vacant posts in Jal Nigam as such it can not be said that the posts against which selection proceedings have been initiated by issuing advertisement were not sanctioned. In regard to the other submission of applicability of roster of reservation as per Act, 1994 in regard to the temporary vacancy the law is very much settled that the provisions of U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 is not applicable. The policy of the reservation is applicable only to substantive vacancies as such while issuing advertisement the roster of reservation in accordance with Act No. 5 of 1994 has been made applicable treating the vacancies to be substantive in nature.
In view of the above we hold that the vacancies are duly sanctioned and permanent in nature as such roster of reservation was made applicable. In view of this the argument advanced by learned counsel for the respondent is not acceptable.
On the question of violation of principles of natural justice it is to be seen that after the initiation of selection proceedings and its finalization, appointment letters were issued to the petitioners in pursuance of which they have joined their services and continued to discharge their duties. In these circumstances, the question under consideration is whether without notice and without affording any opportunity of hearing to the petitioners, the selection and appointment can be cancelled.
In regard to the violation of principles of natural justice specific statement of fact has been made in paragraph 24 of the writ petition that the impugned order is ex-parte and in violation of principles of natural justice the reply of the aforesaid statement of fact has been made in para 10 of the counter affidavit and the recital in this regard is that the appointment of the petitioners were made against the temporary vacancies on temporary basis as such there was no requirement of giving notice or to afford opportunity of hearing to them.
The Supreme Court of India in the case of 2017 (5) SCC 660 (Indian Institute of Information Technology Vs. Anurika Vaish). Hon'ble Suprement Court has held as under :
"Consequently, the impugned cancellation orders on the basis of the impugned resolution of the 8th Board Meeting cannot be sustained and the same are hereby quashed. The writ petitions are accordingly allowed and the impugned cancellation orders in these petitions as well as the 16th Resolution of the 8th Board Meeting are hereby quashed. The resolutions passed in the 7th Board Meeting and 8th Board Meeting only in so far as they are adverse to the petitioners shall be open to consideration in the light of the observations made hereinabove.
In view of the findings recorded by us hereinabove, we leave it open to the Board to take a fresh decision as may be permissible in the light of the observations made hereinabove within three months after opportunity to the petitioners." The appellant-Institute, in purported implementation of the directions in the judgment dated 11.12.2015 again unilaterally took certain decisions in the Fourteenth and Fifteenth Meetings of the Board and subsequently issued show-cause notices to the teachers as to why their appointment should not be cancelled.
Since some of the teachers were not reinstated despite the declaration by the High Court that the termination was illegal, they filed contempt petitions. Since, show-cause notices were issued, some teachers challenged those show-cause notices and the High Court has stayed those show-cause notices. It is at that stage, the appellant has chosen to challenge the common final judgment and order dated 11.12.2015 passed by the High Court of Judicature at Allahabad in Writ-A No. 22558 of 2014, 21309 of 2014, 21319 of 2014, 21595 of 2014, 37213 of 2014 and 36461 of 2014; and against the Interim Order dated 16.03.2016 passed by the High Court of Judicature at Allahabad in Contempt Application (Civil) No. 645 of 2016 and 1033 of 2016; and against the Interim Order dated 04.04.2016 passed by the High Court of Judicature at Allahabad in Writ-A No. 14486 of 2016, 14488 of 2016 and 14490 of 2016; and against the Interim Order dated 13.04.2016 passed by the High Court of Judicature at Allahabad in Writ-A No. 16715 of 2016. Having extensively heard Shri Sunil Gupta, learned Senior Counsel for the appellant and Shri Rakesh Dwivedi and Shri V. Giri, learned Senior Counsel appearing for the affected teachers, other learned Counsel appearing for teachers and Dr. Ashutosh Kumar Singh, respondent-in-person, we are of the view that the whole ill-advised exercise undertaken by the appellant-Institute only led to unnecessary litigation. In the judgment dated 11.12.2015, the High Court has set aside Resolution at Item No.16 of the Eighth Board Meeting. It is seen from the discussion that the decision to cancel the appointments was based on a Status Report which was not furnished to the affected teachers. The High Court hence found that the decision taken by the appellant-Institute is in violation of the principles of natural justice. That is the quintessence of the judgment. And thereafter, the High Court gave liberty to the appellant to take a fresh decision in accordance with law, that is to say, after affording an opportunity of hearing to the affected teachers.
All that the appellants should have done is to make available a copy of the Status Report discussed in the Eighth Board Meeting which led to cancellation of their appointments and afford an opportunity of making a representation and hearing. Short of that, the appellant-Institute has taken several other steps. Maybe they have intended well but worked out poorly. The teachers could not have been issued the show-cause notices based on any decision taken subsequent to the judgment. Since we intend to remit the matters to the Institute with a direction to start the process from the stage of the judgment of the High Court dated 11.12.2015, we do not propose to make any further observations in this regard. Accordingly, these appeals are disposed of as follows:
The appellant-Institute shall serve a copy of the Status Report discussed in the Eighth Board Meeting to the affected teachers forthwith and also provide a further period of two weeks for making a fresh representation. On receipt of the representations, the affected teachers shall be given an opportunity of hearing on all the aspects referred to in the Status Report and on the reasons for termination as referred to in the Eighth Board Meeting. Thereafter, the Board shall take a fresh decision in the case of each individual in accordance with law. We make it clear that the only notice which the teachers could have been issued is on the basis of the consideration in the Eighth Board Meeting and not thereafter. The Status Report considered by the Eighth Board Meeting and the decision taken by the Eighth Board Meeting shall be treated as show-cause notice by the affected teachers."
In view of the settled proposition of law as held in the aforesaid decision on bare perusal of the impugned order and statement of fact made in the writ petition and counter affidavit, we have already held that the vacancies were substantive vacancies and the selection process was started after obtaining prior sanction of the State Government, the order impugned dated 11.8.2017 passed without giving notice and opportunity of hearing before cancellation of selection and appointment is wholly misconceived.
The selection and appointment of the petitioners have made by following the procedure prescribed under law by issuing an advertisement in the news paper, inviting applications from the open market and by constituting a selection committee as such the right which accrued after getting appointment cannot be taken away without issuing notice and without affording opportunity of hearing to the petitioners. The order of cancellation being passed in violation of principles of natural justice is not sustainable in the eyes of law.
The respondents on the ground that some of the questions were found to be defective and the answer key were found to be incorrect has cancelled the entire selection. In this regard it is to be noted that there were written examination in three different subjects, namely, Civil Engineering, Electrical / Mechanical and Computer Science / Electronics and Communication / Electrical and Electronics do not specify as to why the question / answer ultimately found to be erroneous pertaining to the aforesaid selection. It is further evident that the examination of the candidates were conducted in two shifts i.e. morning and evening and on the basis of report the respondents have not re-valuated the answer sheets and has cancelled the entire selection proceedings.
The next question for consideration is that in case there were some complaints in regard to the selection proceedings then it was incumbent upon the State Government upon coming to the conclusion in an inquiry and that part of the selection, who were found not suitable for the selection would have been cancelled and not the entire selection proceeding which have been completed pursuant thereof the appointment order have been issued. The allegations against the selection proceedings appears to be not sustainable on the ground that the State Government without examining that in case the questions were defective and on that score marks have been awarded to some of the candidates they would have been discarded in selection not the entire selection and appointment. Reference may be made in this regard upon the judgements of the Supreme Court in the case of Jogendra Pal & others Vs. State of Punjab and others reported in 2014 (6) SCC 644 wherein almost similar controversy in regard to the selection of Judicial Officers were involved and the Hon'ble Supreme Court after considering the some judgements has held as under :
"(30) We have also gone through the reasons given by the High Court in the impugned judgment, in support of the conclusion that the entire process is to be treated as vitiated. We find that reasons are the same which were placed earlier before the High Court by the Government in Amarbir Singh's case (supra) and they were very much before this Court as well when the judgment in Inderpreet Singh Kahlon (supra) was rendered. Without alluding to them in detail, we may say in nutshell that the reasons given pertain to the conduct and role of Mr. Sidhu and his accomplices who had taken money/bribes from some of the candidates or had given undue favour to some other candidates because of other influences. The material discussed is the allegations in various FIRs and statements of Mr. Jagman Singh, a confident and tout of Mr. Sidhu (who had become approver in the criminal case), and others recorded under Section 161 of the Code of Criminal Procedure, 1973 and the cases in the criminal trial. However, even after noticing these very reasons, this Court had held that those who are innocent cannot be punished because of the misdeeds of Mr. Sidhu in showing favour to other tainted candidates.
31) There is yet another reason to hold that these persons who have come up clean, meaning thereby, who have entered the service by passing the examination on their own merits, should be allowed to continue in the Government service. We have already mentioned in the earlier part of the judgment, while discussing the case of Inderpreet Singh Kahlon (supra), that the Court had not approved the recommendation of the High Court, on the basis of which the Government had acted, in respect of the judicial officers whose services were also terminated. It is not necessary to state in detail the reasons given by the Court while condemning the action of terminating the services of the judicial officers, which was taken in undue haste. The Court had also remarked that all these judicial officers were subjected to viva voce/interview test as well, which was conducted as per Rule 17(a)(iii) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, and no breach of the aid Rule had been pointed out. The Committee which interviewed these judicial officers included a Judge of the High Court as well. The Court categorically observed that there may be some cases where marks had been given for extraneous considerations, but only because there was such a possibility, the same by itself, without analysing more, may not be a ground for arriving at a conclusion that the entire selection process was vitiated. The direction was, accordingly, given to consider the entire matter afresh.
33) There is yet another crucial development which needs to be mentioned here. In the first instance, it is the State which had taken a decision to cancel the entire selection process. However, after the remand order passed in Inderpreet Singh Kahlon's case (supra), in the exercise done by the Committee screening out the tainted from non- tainted candidates, the State came forward and showed its willingness to take back these candidates who were non-tainted and were selected on the basis of their merit. A specific affidavit to this effect was filed in the High Court. To the same effect the affidavit has been filed before us also. We are of the opinion that once those untainted officers, who were appointed under the same environment, have been allowed to continue, there is no reason to deprive this benefit of such recourse to the PCS (Executive Branch) and Allied Services. We may note that the High Court has recorded in the impugned judgment that 66% cases were found to be of the persons given appointment who were tainted, which influenced the entire selection process. However, during the course of arguments, it was placed before us that the aforesaid percentage is worked out by taking the cases of direct recruits and nominated candidates together. If the figures are separately taken, out of 93 direct recruits, 76 have joined and only 10 are found to be tainted. In fact, the percentage of such tainted candidates in nominated category was much higher, i.e. 80%. It was, thus, argued that the cases of direct recruits cannot be taken along with those in nominated category, who influenced the decision in their matter as well. This is also a supportive and important fact which goes in favour of these appellants viz. the non-tainted direct recruits."
In the present case also the respondents have not recorded finding in the impugned order that it was not possible to distinguish the cases of tainted from un-tainted one and there was possibility of that all of them would have got the benefit of wrongs. The submission of learned counsel for the respondents on the point referred hereinabove that the selection proceeding was initiated in hurried manner with malicious intention only to complete the selection process to select the candidate of their choice is not acceptable as such we hold that in case there was some discrepancy in the question papers and answer key and after coming to know the discrepancy, the respondents could have re-valuated the answer-sheet before canceling the entire selection proceedings. This on the issue of discrepancy in the question papers and answer key the entire selection proceedings ought not have been cancelled for want of non consideration of the aforesaid aspect of the matter. The order of cancellation, therefore, is per se illegal and is not sustainable in law.
In regard to the objections of the respondents that code of conduct was enforced as such no proceedings of selection could have been done, on examination of the record of the writ petition, counter affidavit and rejoinder affidavit, the fact reveals that code of conduct came into play on 4.1.2017 and on perusal of the code of conduct, it is crystal clear that there is no prohibition imposed against grant of appointment on regular selection, the prohibition was imposed in regard to the grant of ad-hoc appointment as such the submission of respondents' counsel has no force and is hereby rejected.
While considering the submission of the parties in regard to the grant of permission to fill up the vacancies advertised under advertisement dated 19.11.2016. The law is very much settled that once a selection proceedings has been initiated after obtaining approval from the Government and thereafter some orders have been issued by making amendment under the Rules or by issuing notification, the selection proceedings will be governed under rules and guidelines applicable at the time of initiation of the selection proceedings. Law is also settled in this regard that the relevant date for consideration of initiation of selection proceedings is the date on which advertisement is issued. The State Government in terms of Government Order dated 13.12.2016 has imposed rider on selection which will not affect the selection proceedings already started.
In the case of Sonia Vs. Oriental Insurance Co. Ltd. reported in 2007 (10) SCC 627 wherein selection proceedings was commenced and after issuance of advertisement a prohibition came into existence. The Supreme Court held that the proceeding have been initiated prior to the said prohibition as such the same shall be concluded in accordance with law which was existing at the time of advertisement as such the objection of the respondents that under the Government Order dated 13.12.2016 the rider was imposed that without sanction of the State Government, selection proceedings vitiated is not acceptable.
In regard to the objection of Assistant Engineer (Electrical / Mechanical) that the selection has been made by adopting fraud and unfair means, on perusal of records it is evident on the face of it that out of 5, 4 candidates had appeared in the written examination from different examination centres in different districts and out of 4 only 2 candidates appeared in the same districts. The State Government by levelling general allegation and without examining the controversy in correct prospective has come to the conclusion that the selection has been made by adopting unfair means.
It is not acceptable that 4 posts of Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics) have not been sanctioned by the State Government as such the selection against the aforesaid 4 vacancies rendered the entire selection proceedings illegal. The perusal of the Government Order dated 16.11.2016 whereby the permission was accorded to fill up 113 posts, 9 posts of Assistant Engineer (Electrical / Mechanical) which was bifurcated in 5 posts of Assistant Engineer (Electrical / Mechanical) and 4 posts of Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics), the Court finds that the permission to advertise the 9 posts of Assistant Engineer permission was accorded by the Chairman to fill up 4 posts of Assistant Engineer in the discipline of (Computer Science / Electronics and Communication / Electrical and Electronics) which was ratified by the Board of Directors.
Learned counsel for the respondents in support of his arguments has referred certain judgements i.e. (i) (2006) 4 SCC 1 Secretary, State of Karnataka and others Vs. Umadevi and others. (ii) (1995) 1 SCC 638 M.P. Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain & others, (iii) 2003 (3) AWC 2219, Smt. Radha Tiwari Vs. State of U.P. & Ord. And (iv) (2007) 8 SCC 264 M.P. State Coop. Bank Ltd. Bhopal Vs. Nanuram Yadav and others.
We have gone through and perused the aforesaid judgments. On their perusal it is apparent that one of the judgements is in regard to the back door entries in the job and consideration of the regularization of the daily wagers, contractual, ad-hoc employee, causal labours. The next three cases are in regard to cancellation of selection and appointment which have no application in the facts and circumstances of the present case and is distinguishable on the facts of the case.
In view of the above, we are of the considered opinion that the impugned order dated 11.8.2017 has been passed in violation of principles of natural justice without issuing notice and without affording opportunity of hearing to the petitioners, no exercise was undertaken to distinguish the case of tainted and non-tainted candidates to arrive at the conclusion while passing the impugned order as such the impugned order dated 11.8.2017 is not sustainable and is liable to be set aside.
Accordingly, the impugned order dated 11.8.2017 passed by Chief Engineer Jal Nigam (Annexure-9 to the writ petition) is here by set aside.
The writ petitions succeed and are allowed with the further direction to permit the petitioners to work on the post of Assistant Engineer (Civil); Assistant Engineer (Electrical / Mechanical) and Assistant Engineer (Computer Science / Electronics and Communication / Electrical and Electronics) and to pay them regular salary month by month with the liberty to the respondents to pass a fresh, reasoned order after providing opportunity of hearing to the petitioners and other affected parties on the basis of observations made above.
No order as to costs.
Order Date :- 28.11.2017 Manoj