Uttarakhand High Court
Union Of India And Others vs Ashish Kumar And Others on 20 September, 2016
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 337 of 2016
Union of India and others ........Petitioners
Versus
Ashish Kumar and others .......Respondents
With
Writ Petition (S/B) No. 338 of 2016
Union of India and others ........Petitioners
Versus
Sudhir Singh and others ......Respondents
With
Writ Petition (S/B) No. 340 of 2016
Union of India and others ........Petitioners
Versus
Hari Nandan Singh and others ......Respondents
With
Writ Petition (S/B) No. 345 of 2016
Union of India and another ........Petitioners
Versus
Km. Geetika Chalal and another ......Respondents
With
Writ Petition (S/B) No. 346 of 2016
Union of India and another ........Petitioners
Versus
Km. Swati Padiyar @ Swati Sharma
and another ......Respondents
With
Writ Petition (S/B) No. 362 of 2016
Union of India and another ........Petitioners
Versus
Mosham and others ......Respondents
2
With
Writ Petition (S/B) No. 365 of 2016
Union of India and another ........Petitioners
Versus
Babloo and another ......Respondents
Mr. Rakesh Thapliyal, Assistant Solicitor General of India, for the petitioners.
Mr. Manoj Tiwari, Senior Advocate assisted by Ms. Swati Verma, Advocate for
the respondents.
Dated: 20th September, 2016
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
K.M. Joseph, C.J. (Oral) Since common questions of law are involved in this bunch of writ petitions, we dispose of the same by this common judgment.
2. The writ petitioners call in question the orders passed by the Central Administrative Tribunal, Circuit Bench, Nainital allowing a bunch of Original Applications filed by the party respondents seeking to quash the order by which the result of the examination for direct recruitment of Postal Assistant/Sorting Assistant for the year 2013- 2014, in which the applicants/party respondents were declared successful, was cancelled. In the Original Applications, further order was sought to issue appointment letters and give joining to the applicants on their respective posts.
3. It appears that M/s CMC Ltd. (which is impleaded in these writ petitions as a proforma party and which was not a party before the Tribunal and to which we are not issuing notice having regard to the course we have adopted) was engaged by the petitioners for the purpose of conducting recruitment to various posts. It appears that there were complaints received in regard to the recruitment. We are concerned in this bunch of cases with the Uttarakhand Circle. We say so because recruitment was spread over a number of Circles. On the 3 basis of the complaints received, it appears that the matter was enquired by the Vigilance Team of the Postal Directorate. It is the case of the petitioners that there have been reasons to suspect serious malpractice on the part of some of the candidates and the officials of M/s CMC Ltd. It appears originally that these orders were issued holding in abeyance the further appointment in respect of all the Circles (22 Postal Circles), where the examination was conducted through the same outsourcing agency, namely, M/s. CMC Ltd. We are concerned with the Uttarakhand Circle only. The results were declared and in fact, some of the candidates were also appointed in the Uttarakhand Circle.
4. In the impugned orders, it is sufficient for us to notice that the Tribunal relied on the order passed by the Central Administrative Tribunal, Principal Bench, which we deem appropriate to extract as under:
"66. We observe that there are evidences to suggest that in respect of 34 candidates against whom complaints were received, mala practices have been resorted to in a planned manner. We also note that the report of the Vigilance Division discloses disturbing patterns. Incidents of unusual co-incidence indicate an unholy network at work also involving some representatives of M/s CMC Ltd.
67. The aforesaid discursive exercise prompts us to declare that the letter bearing No. A34013/05/2015-DE (Chapter -II) dated 11.12.2015 by which the Director General informed Chief Postmaster General Gujarat Circle that the competent authority has ordered to cancel the PA/SA Direct Recruitment Examination 2013-2014 is not sustainable in law. We further declare that the orders passed pursuant to the letter bearing No.A- 34013/05/2014-DE (Chapter -II) dated 11.12.2015 in so far as the same relates to Gujarat Circle are also not tenable in law. Consequently, we quash orders dated 23.12.2015 by which the result of examination for the direct recruitment of PA/SA for the year & 2014 have been cancelled and the impugned orders dated 23.12.2015 by which the services of the applicants were terminated both by the Senior Superintendent of Post Offices of different Divisions in Gujarat Postal Circle.
68. The select list shall be kept in abeyance. The respondents are directed to probe into the matter by 4 thorough investigation in a fair and transparent manner to be undertaken either by Vigilance Wing of the Department or by any suitable Investigating Agency. M/s CMC Ltd. At appropriate high level should also be involved in the process as they will be able to throw much needed light in the affair. Depending upon the outcome of the probe the respondents shall take appropriate decision relating to operation of the select list in the light of the decision of the Hon'ble Supreme Court in the case of Inderpreet Singh Kahlon v. State of Punjab (2006) 11 SCC 356 and Joginder Pal & Ors. Vs. State of Punjab & Ors. (2014) 6 SCC 644. Having regard to the fact that the applicants are out of job, we direct the respondents to complete the whole exercise as expeditiously as possible and preferably within a period of three months from the date of receipt of a copy of this order.
69. In view of our answer to point No. (i) and (ii), it may be argued that as a consequence of the same, the applicants are entitled to be reinstate into service, but we decline to grant the relief of reinstatement into service for the reason that there are specific allegations against 34 Cell on 09.4.2015. None of the selected / appointed candidates pleads guilty. As such it is difficult to ascertain who are the 34 amongst the selected / appointed. The possibility that all the 34 or some amongst them may have been already appointed cannot be overruled. Such tainted, unscrupulous candidates who are responsible for the present crisis deserve to be seriously dealt with in accordance with law. Hence, we hold that the applicants are not entitled for reinstatement into service till such time the respondents complete the exercise as ordered hereinbefore.
70. Before parting with the case, however, we may observe that it is expected that the Secretary, Department of Posts having regard to the magnitude of the matter shall leave no stone unturned to bring the guilty to book.
It is their duty to unearth the scan and spare none however high he/she may be. We expect the Department to make thorough investigation into the matter.
71. The OAs are allowed to the aforementioned extent and the directions and observations made hereinbefore.
72. In the circumstances, the parties shall bear their own respective costs."
5. Further the order recites that the aforesaid order of the Bench was followed by the Principal Bench of the Tribunal. Thereafter, it is recited that it was submitted by learned counsel for the applicants/party respondents that since similar and identical issues are 5 involved in the present O.A., hence this O.A may be decided in the same terms. Learned counsel for the petitioners also had no objection to the said course being followed. The OA's were accordingly allowed and the petitioners were directed to follow the directions, which we have extracted hereinbefore.
6. Mr. Rakesh Thapliyal, Assistant Solicitor General of India appearing on behalf of the petitioners would submit that the orders of the Tribunal cannot be sustained and he would contend that in fact the order of the Tribunal, which was relied on and made the sole basis for the direction issued by the Tribunal, has in-turn been set aside by the Gujarat High Court and the matter is no doubt pending before the Hon'ble Apex Court in the form of a Special Leave Petition. He would also submit that another matter is pending before the Delhi High Court. It is his contention that this is a case where the malpractices were detected in the Vigilance enquiry and the same warranted the cancellation of the entire selection process.
7. We also went through the order of the Gujarat High Court. The Gujarat High Court has proceeded to take a view that the Tribunal has proceeded on the basis that the impugned order could not be sustained as it occasioned the breach of principles of natural justice and, it is after alluding to the judgments of the Hon'ble Supreme Court, it was found that in the circumstances, the order of the Tribunal could not be sustained. We say nothing more in view of the course we adopt, namely, to remit the matter for reconsideration, a course, which is not objected to by the learned senior counsel for the respondents Mr. Manoj Tiwari, after getting instructions from his clients in all these cases. We also think that the order of the Tribunal does not deal with any of the issues, except placing reliance on the order of the Tribunal, which in turn stands set aside by the Judgment of the Gujarat High Court. No doubt, it appears that this is a course, which was agreed to by both the parties, namely, applicants/party respondents and the respondents/writ petitioners. We would think that it will be in the 6 interest of justice that the order of the Tribunal be set aside as the order of the Tribunal, which was relied on, stands set aside by the Gujarat High Court, as things stand (though an SLP is said to be pending). We also find that the Tribunal, de-hors reference to the order of the Principal Bench, has not dealt with any of the issues, which were being raised by the applicants or the writ petitioners.
8. In such circumstances, the writ petitions are allowed; the impugned orders will stand quashed; and the matter will stand remitted to the Tribunal for de novo consideration. We reserve the right of both the petitioners and party respondents to raise all their contentions before the Tribunal.
(Alok Singh, J.) (K.M. Joseph, C.J.)
20.09.2016
Rahul