Central Administrative Tribunal - Allahabad
Ranvijay Narayan Singh vs Union Of India Through Secretary ... on 23 January, 2014
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH,
ALLAHABAD
Original Application No. 1760 of 2012
Allahabad this the, 23rd day of January, 2014
Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD
Honble Ms. B. Bhamathi, Member (A)
1. Ranvijay Narayan Singh, S/o Shri Uday Pratap Singh, R/o Village: Bangaon, P.O. Matinganj, District: Azamgarh.
Presently posted as Lower Division Clerk, 24 Equipment Depot, Air Force Station, Manauri, Allahabad.
2. Ramji Mishra, S/o Shri Vinod Kumar Mishra, R/o: 2nd C/15 Double Storey, Factory Estate, Ordnance Clothing Factory, Shahjahanpur.
At present posted as Fireman, in the office of 24 Equipment Depot, Air Force Station, Manauri, Allahabad.
3. Vinod Kumar, S/o Shri Mohan Lal, R/o: Village: Ismaelpur, Kotwa, P.O. Manauri, Allahabad.
At present posted as Fireman, in the office of 24 Equipment Depot, Air Force Station, Manauri, Allahabad.
4. Sushil Kumar, S/o Shri Chhangu Lal R/o: Village: Ismaelpur, Kotwa, P.O. Manauri, Allahabad.
At present posted as Cook, in the office of 24 Equipment Depot, Air Force Station, Manauri, Allahabad.
Applicants
By Advocate: Sri Satish Mandhyan
Versus
1. Union of India through Secretary (Defence), Ministry of Defence, North Block, New Delhi.
2. Maintenance Command, Air Force Station, Nagpur, Through Air Marshal.
3. 24 Equipment Depot, Air Force, Manauri, Allahabad, Through: Air Commodore, Air Office Commanding.
Respondents
By Advocates: Sri S.C. Mishra
Sri D.S. Shukla
Reserved on 11.12.2013
O R D E R
By Honble Mr. Justice S.S. Tiwari, Sr. J.M./HOD Instant O.A. has been filed by the applicant to issue a writ, order or direction in the nature of certiorari quashing the orders dated 17.12.2012 Annexure A-1 to Annexure A-4, issued by respondent No. 3 and, to issue a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the orders dated 17.12.2012, Annexure A-1 to Annexure A-4, issued by respondent No. 3.
2. The facts giving rise to this O.A., in brief, are as follows: -
The Indian Air Force made an advertisement in the Employment News of 22-28 September, 2010 declaring vacancies in different depots of which one was 24 Equipment Depot, Air Force Station, Manauri, Allahabad. The advertisement clearly depicted 04 posts of Lower Division Clerk, 01 each of Assistant Store Keeper, Electrician, Carpenter and 02 each of Motor Driver (MTD), Fireman and Cook. The applicants being eligible for the aforesaid posts applied for the posts of Lower Division Clerk, Fireman and Cook. Call letters were issued to them. They appeared in the written examination/ physical/practical and interview and they were found eligible and appropriate for the respective posts and an information was given to them dated 03.03.2011 regarding their provisional selection/short listing for appointment. Their original credentials and character certificate were got verified by the department. The list was published on 17.03.2011 and the selected candidates were required to undergo the medical examination and accordingly they were all medically examined and found fit. The appointment letters were issued to the applicants on 28.04.2011 with the probation period of two years. As per appointment letter, the applicants reported for duty at 07.00 a.m. on 10.05.2011 and joined 24 Equipment Depot Air Force Station, Manauri, Allahabad. Three out of four applicants were allotted Government accommodations and since then they are working on the respective posts.
3. To their utter surprise, when the applicants reported for duty on 17.12.2012, they were served with termination order without assigning any reason. After receiving the termination order, applicants came to know about some Court of Inquiry ( for short CoI) being held in the matter with which the applicants were not associated in any way nor any intimation was given to them about it. No charge sheet was submitted against any applicant nor was any unsatisfactory report submitted against them. Even no show cause notice was given to the applicants before termination order which is apparently against the rules and natural justice. The entire proceedings are void abinitio and cannot be sustained in the eye of law. Even no notice of misconduct on the part of applicants was given to them. Under the impugned order, the applicants are thrown on the road without there being any fault on their part and they would be bereft of only source of livelihood. They have no option except to file the present O.A. Accordingly this O.A. has been filed mainly on the grounds that the impugned orders are ex-facie illegal, arbitrary, whimsical and against the principle of natural justice, as such, liable to be set aside; because the applicants in pursuance of advertisement letter applied for the posts advertised by the Maintenance Command of the Air Force and after successfully completing the written examination/physical/interview, they were given appointment letters. They have already put in 19 months service and all of a sudden they cannot be thrown on the road. The termination of applicants from service is against the principle of natural justice, no charge of misconduct has been levelled against any applicant. No show cause notice was ever given to them nor they have been associated in any way with the alleged COI nor any opportunity of hearing was given to them. Since under the impugned orders, serious civil consequences follow, therefore, opportunity was mandatory and not providing any opportunity, vitiates the impugned orders. Accordingly, it has been prayed that the relief claimed by the applicants be granted in their favour.
4. The respondents have filed the Counter Affidavit denying the allegations made by the applicants in the O.A., admitting the factum of advertisement of 13 vacancies allotted under the Maintenance Command, Indian Air Force to 24 Equipment Depot. It is further contended that it is an admitted fact that a Board of Officers (in short BoO) was appointed by the Air Officer Commanding of 24 ED vide URO 06/11 on 21.01.2011 to carry out the selection process for selecting the suitable candidates for the abovementioned vacancies. The BoO after carrying out the selection process short-listed the candidates for the said posts and 13 candidates were selected for different posts. The proceedings of said BoO were approved by the AOC 24 ED, AF on 19.02.2011 and after completion of formalities including verification of character and antecedents and medical examination and also verification of the relevant supporting documents i.e. education qualification, age, experience etc., they were recommended for appointment. But, meanwhile few complaints were received alleging irregularities and mal- practice in the said selection process by the said BoO. To ascertain the veracity of the allegations made in the said complaints, the Headquarters, Maintenance Command, Indian Air Force directed 14 Provost and Security Unit, AF which is an independent investigating agency of IAF to inquire into the said complaints. After carrying out a discrete investigation, 14P&SU submitted a report dated 15.04.2011 in this regard which revealed that certain procedural irregularities and mal practice have taken place during the conduct of selection process. After considering the aforesaid report, the Air Officer Commanding-in-Chief, HQ, Maintenance Command, taking serious note of such irregularities committed during the selection process, ordered a CoI on 20.06.2011 and the same was intimated to the Presiding Officer vide MC/5901/1/24ED/PC dated 21.06.2011 to go into the lapses and fix the responsibilities for such lapses/irregularities. The 24 ED was also informed by the Headquarters, Maintenance Command to keep in abeyance the appointments to the candidates who were provisionally selected and found fit after completion of post selection formalities. However, since the appointment letters to 04 candidates (present applicants) were issued on 28.04.2011, they joined the duties on 10.05.2011.
5. After investigating the allegations in detail, the CoI finalized its deliberation and inter alia submitted its findings and recommendations on 15.02.2012 to quash the entire selection process and order a fresh Board. The CoI proceedings revealed that all norms had been violated at each stage viz. right from the stage of entertaining applications, preparation of question papers, conduct of written tests, conduct of interviews/trade tests etc. making it impossible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their service in pursuance thereof could be terminated. The nature and extent of illegalities and irregularities committed in conducting the selection were so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection.
6. After duly considering the CoI proceedings, the AOC-in-Chief, Maintenance Command, IAF decided to quash the proceedings of the said BoO and cancelled the selections/appointments made consequent to the recommendation of said BoO and re-ordering of fresh Board was referred to the Air Headquarters vide MC/C 5901/1/4/PC dated 28.02.2012 for their advice. The Air Headquarters vide their letter dated 28.08.2012 approved the recommendations of CoI and directed to take necessary action as per recommendations of the CoI i.e. redo the entire selection process in respect of all 13 posts. Accordingly, AOC, 24 ED was conveyed the recommendations of CoI to quash the entire BoO for direct recruitment of civilians and also directed to order a fresh BoO for recruitment. It was also ordered to terminate the services of four candidates (applicants). Accordingly their services were terminated by order dated 17.12.2012. The termination order was handed over to the applicants on 17.12.2012 itself and they received them on the same date. The termination of service of the applicants has taken effect on 17.12.2012 itself. Thereafter, the applicants approached this Tribunal. The services of applicants had already been terminated before grant of said stay order by this Tribunal. As regards service of show cause notice to the applicants, prior to termination order, it has been submitted that in a case where irregularities committed in the selection process are all pervasive vitiating the whole selection, in that event, it would not be required that each selectee or appointee be served with individual show cause notice. The applicants were not informed of such inquiry so as to ensure its confidentiality and secrecy about the various aspects needed to be investigated and examined. After due investigation, it was well established that all norms have been violated at each stage. The applicants do not deserve any sympathy and the O.A. should be dismissed.
7. The applicants have filed Rejoinder Affidavit stating that in fact with whatever little inputs and the materials at hand, the Board of Officers so constituted had done a commendable job in making correct selections from amongst large number of candidates. They have scientifically short listed the candidates and thereafter scrutinized the applicants and conducted the selection in accordance with law and, best candidates have been selected. Therefore, any opportunity by any independent body would not be proper in any circumstances. The selection proceeding was conducted in absolutely transparent manner. The alleged complaints are vague and without any specific particulars regarding any illegality or irregularity committed in the selection process. The bald rhetoric is of no consequence. The applicants are not in any knowledge about any preliminary inquiry being instituted through 14 Provost and Security Unit, Air Force. Mere suspicion on the ground of any relation of a candidate with some employee of the Air Force would not traverse in the realm of being irregularity. This type of allegation is mostly unfounded as the son and wards of the employees cannot be just taken to be sub-standard and not fit for selection. The recommendation was for keeping the selection in abeyance in report dated 15.04.2011. However, the respondents went ahead with the selection and offered appointments to the applicants vide order dated 28.04.2011 in pursuance of which the applicants joined at their respective posts on 10.05.2011. At no point of time, the applicants were ever involved in the said proceeding, as such, had no knowledge about the same. However, because of not following the principle of natural justice, the said CoI cannot withstand rigorous of law. There is no specific finding on any irregularity, but all irregularities so pointed out are general in character and all are based on surmises and conjectures rather than any specific irregularity justifying the cancellation of the selection. Minor abrasion in selection cannot be ruled out as there were large number of candidates but, point to be taken into consideration is that all were subjected to the same procedure without any discrimination. Apart from the SRO dated 21.01.2011, there was Signal from the Headquarters that the selection process should be completed at the earliest as the vacancies otherwise would lapse after 19.02.2011, therefore, at all steps the directions were such that there was urgent need to undergo entire process at a very short period of time. Therefore, no fault can be found on this account on early completion of the selection process for the simple reason that it was required to be done at an early date. No prejudice is caused by offering bilingual paper to 02 trades and not to other trade. Looking to the paucity of time and other constrains, the Board of Officers had decided subject to running of a distance of 1.6 km. in the physical endurance test, leaving other tests out of reckoning. There was no good ground available to the CoI to recommend cancellation of entire selection process. In other respects, the applicants have reiterated the earlier stands taken in the O.A. justifying the act done by the BoO. However, reiterating the fact that no opportunity was given to them before passing adverse order against them and principles of natural justice have been violated.
8. The respondents have also filed Supplementary Counter Affidavit mainly stating that on inquiry it was found that the BoO had not adhered to the guidelines and recruitment rules at the time of selection. A lot of irregularities and illegalities, as mentioned in annexure R-6 of the C.A., were found for which the complete selection process had been quashed. The candidates were short listed and selected only provisionally and they were appointed temporarily as mentioned in their appointment letters. The Board has not done the assigned tasks in a transparent manner. The complaints made against the aforesaid selection by the complainants including Secretary Staff Side JCM III level, Air Headquarters are of very serious nature for which the entire selection/ appointment has been quashed. The complaints and irregularities/illegalities were not against the applicants in the instant O.A. hence, they were not made party to the complaints nor any witness in CoI. The CoI inquired on the procedure followed by the BoO during selection process hence, there was no need to inform the same to applicants. If there existed laid down procedure for selection and the same has been compromised then the entire selection become illegal. The BoO for selection had no mandate to circumvent the procedure and vitiate the entire selection procedure. It was mandated to follow the procedure as well as guidelines and was obliged to follow the guidelines in letter and spirit. It is worth to mention that the BoO had circumvented the procedure and the guidelines for selection and were not abided by them. It was not open to the Board of Officers to bypass the laid down procedure for selection. The contention of applicants that due to paucity of time, the BoO have shortened the procedure is not correct. The guidelines were very much in the knowledge of BoO but, deliberately they have not properly adhered to the same during process of selection. The terms of reference of the BoO including the copies of guidelines, recruitment rules and the list of candidates called for interview/test were handed over to the BoO so constituted for the purpose of just and fair selection. The preparation of two sets of question papers instead of three sets is a clear violation of the guidelines of selection process. The erring members of the BoO have been suitably punished for lapses on their part which they have made in selection process. Requisite endurance test for various tradesman, which is a mandatory requirement, was ignored thereby making entire selection illegal. Similarly, it is evident that night driving test was not conducted for MTD tradesman. It is admitted that the driving test was conducted after 14.30 hours and lasted for approximately 04 hours. This approximation does not give an exact timing. There is a clear division between sunset and pitch-dark night. The twilight period cannot be construed as night period and Mechanical Transport Driver (for short MTD) is supposed to be proficient for both day and night driving. If the MTD tradesmen are not subjected to driving skill test for night driving then the driving test is incomplete and is a clear cut vindication of the findings of CoI which has ultimately recommended for the cancellation of proceedings in toto/ totality. Similarly, the BoO has committed a blatant wrong by not seeking permission from Command Headquarters in the case of not calling all the eligible candidates for interview. Should all candidates have been called for interview then the outcome in the form of result would have been different. Not calling all the candidates was nothing but a clear deprivation of opportunity to other deserving candidates which is a clear cut violation of Articles 14 and 16 of the Constitution of India. Similarly, as per the procedure candidates are to be skill tested first and those candidates who are successful in the skill test are to be called for the interview. But, in the present case this procedure has not been followed. Even though the post was reserved for Hearing Handicapped (OBC) candidates but a minimum performance criteria has to be laid out so that a reasonable candidate is selected in the Air Force for the prescribed post. Not stipulating a bare minimum criteria in the form of minimum marks was bad in law as far as selection is concerned. In other words, it is nothing but choosing and picking bad amongst the worst. Similarly, irregularities have been committed in not informing the Special Employment Exchange and Vocational Centers for sponsoring the candidates in the category of Carpenter trade reserved for HH (OBC) candidate. Irregularities have also been committed in the selection process by not following the necessary guidelines such as the measurement of chest, unexpanded and expanded to ascertain the physical fitness of the candidates for Fireman trade, endurance test of carrying weight of 63.5 kg for 183 meters within 96 seconds, clearing 2.7 meters wide ditch and landing on both feet (long jump) and climbing 3 meters vertical rope using hands and feet for selection of Fireman post. Similarly, it is revealed during investigation that the marks have been interpolated after deciding the relative merit of the candidates which is a wrong procedure hence the total selection was illegal. If these incidents, quoted above, are put together the total selection process will be marred by illegalities and irregularities. Adequate time was given for completion of selection process to the BoO. They could have followed the laid down procedure. Violation of guidelines and procedures has lead to quashing of entire selection process and the appointments made pursuant to this selection process. The applicants were not party to the alleged irregularity and illegality hence no opportunity was provided to them. On the other hand all those persons who have directly or indirectly concerned were afforded ample opportunity to put forth their view points. The termination order is neither arbitrary nor illegal.
9. In addition to pleadings, the applicants have placed reliance on documentary evidence filed by them as annexure A-1 to annexure A-12 on record.
10. On the other hand, the respondents have also placed reliance on documentary evidence filed by them in addition to pleadings which are annexure R-1 to annexure R-11 on record.
11. We have heard the learned counsel for the parties at length and perused the documents on record.
12. After hearing the learned counsel for the parties and after perusal of papers on record, following two points are evolved for disposal of the O.A.: -
(i) Whether quashing of selection process by respondent No. 3 is justified, as alleged by respondents?
(ii) Whether termination orders of the applicants passed by respondent No. 3 is not justified, as alleged by the applicants?
13. As regards the first point, it is contended by the respondents counsel that the Court of Inquiry (for short CoI) proceedings conducted by the officers, appointed by the competent authority, revealed that all norms had been violated by the Board of Officers (for short BoO) at each stage i.e. right from the stage of entertaining the applications, preparation of question papers, conduct of written tests, conduct of interviews and trade tests etc. The nature and extent of illegalities and irregularities committed in conducting the selection was so wide spread and all pervasively affecting the result so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection. Elaborating the arguments, it has further been submitted by the respondents that the BoO hurriedly completed the selection process by not following the prescribed procedure meant for selection of the candidates including the applicants. Irregularities have been committed in the selection of Cooks, Firemen, MT Drivers, L.D.C., A.S.K., Electrician and Carpenters. The respondents have placed reliance on the documents filed by them on record as annexure R-6 in support of their contentions. A perusal of annexure R-6 shows that it is finding of the CoI appointed by the competent authority who had investigated the entire matter relating to the selection in question and after completing the inquiry proceedings, this report was submitted which is as follows: -
LIST OF ANOMALIES/IRREGULARITIES IN SELECTION PROCEDURE RECRUITMENT OF CIVILIANS UNDER ADRP 2005-09 AT 24 ED
1. No admin instructions were issued by the Depot authorities prior to the commencing of the selection process. Laying down of guidelines may have ensured standardization of selection process and leaving minimal scope for occurrence of anomalies/irregularities.
2. Guidelines for civilian recruitment issued by HC MC vide MC/ 5901/1/1/PC dated 20 Oct 10 and 23 Apr 10 were not adhered to.
3. As per the ibid guidelines of HQ MC, three sets of question papers were required to be prepared for each Trade. However, only two sets were prepared.
4. After the written exam, the results were posted on Notice Boards at the Main Guard Room. The procedure of dispatching call letters to the candidates selected after written exam was not resorted to. This was done to save time and shorten the selection procedure. As per the Depot authorities and the BOO, several announcements were made prior to and during the conduct of the written examination that the results would be posted outside the Main Guard Room, therefore, this deviation from procedure may not have caused prejudice to any candidate. However, in the hurry to evaluate and post the results of the written exam, sufficient time was not given for evaluating the answer sheets. The evaluation continued to almost 0100 hr. No cross-checking of marking was done either. During random checking, the CoI found several anomalies in some of the answer sheets. Therefore, the CoIs opinion that prejudice may have been caused to several candidates due to the hurried evaluation appears to be correct.
5. While bilingual papers were prepared for Cook and Fireman trades, guidelines issued were to assess an individual in English language.
6. As per guidelines given in advertisement in the Employment News, the measurement of chest, unexpended and expended, to ascertain the physical fitness of the candidates for Fireman trade was not carried out. Further, the requisite endurance test of carrying weight of 63.5 Kg for 183 m within 96 seconds, clearing 2.7 m wide ditch landing on both feet (long jump) and climbing 3 m vertical rope using hands and feet too was not carried out. As a test of endurance, the candidates were only made to run a distance of 1.6 km.
7. The driving test for MTD tradesmen was conducted for only half a km. In the opinion of the CoI, this may not have been sufficient to ascertain the driving skills of the candidates. Further, as per the guidelines given in the Employment News, night driving test of the candidates was not carried out.
8. Typing test for LDC post was conducted, but the examiners were not given any guidelines to assess/evaluate the typing proficiency. Consequently, marking was not carried out uniformly.
9. After the written exam for the LDC posts, the top 10 candidates were called for the interview, out of which only 04 appeared. Of these the top three scorers got 124, 110 and 109 marks respectively. Without giving any reasons for rejecting these candidates, the BOO reduced the cut off marks to 40% and 38 more candidates were called for interview by telegram on 08 Feb with interview date as 11 Feb 11. During the enquiry it was clarified that the candidates in the first round of interview were found not suitable, that is why additional candidates were called. Incidentally, the candidate who scored the highest in the second round of interview got 132 marks. Further, for the second round of interview sufficient time was not given for out station candidates to report. Also, as required by the guidelines HQ MC was not informed of this deviation in procedure, that is reducing the cut off marks and calling additional set of candidates for the interview to the post of LDC.
10. While the selection process was on, 14 P & S U staff conducted an investigation of receipt of a complaint. It was noticed that Sh. Yogender, a candidate for the post of Electrician was unusually high and for the post of Civ MTD, there was a totaling error (lesser marks shown than what he actually got) as a result the candidate, Gaurav Mishra, who would otherwise have been the main candidate, became standby for the post of Civil MTD. On being pointed out by P & S Staff, a retest was conducted for Sh Yogender Singh, in which he failed miserably. Hence, his candidature was rejected. Also the error in case of Sh Gaurav Mishra was rectified. From these it appears that the selection process may not have been fair and square.
11. For the post of ASK, the candidates who had cleared the written exam, were shortlisted by carrying out interview first. Subsequently, the skill test of the short listed candidates was carried out. As per procedure the candidates are to be skill tested first and the candidates who are successful in the skill test only are to be called for the interview.
12. No re-check was carried off the application forms which were rejected during the initial scrutiny. This resulted in quite a few anomalies. (Para [e] of deliberations on pg 71).
13. Minimum marks were not stipulated for each trade, either by HQ MC or by the Unit. In Carpenter (HH OBC), the candidate who scored only 11% in the written test was called for interview/skill test and selected.
14. It appears that marks in viva and skill test were inflated in case of main candidates, for the purpose of ensuring their selection. For example a candidate for ASK who scored only 24% in written and 38% in skill, was given 98.7% in Viva. For the post of cook it appears that favouritism was shown in case of two local candidates. These candidates had scored 42% and 51% in written, but were given 84% and 80% respectively in the skill test. Moreover, both these candidates, who were employed as mess orderlies, were given experience certificates as cooks in the Messes.
15. In case of SC/ST candidates, notification of vacancies were not sent to the nearest welfare organizations/associations, which is stipulated in SOP (23 Apr 10). Similarly, in the case of Hearing Handicapped (HH) OBC vacancy in Carpenter trade, notification of vacancy was not sent to the nearest Spl Employment Exchange and vocational centres.
16. In many cases no notice has been taken for the qualification or experience of candidates even when marks were to be given for this. As per guidelines additional marks/weightage is to be given for the same.
17. In the case of one of the candidates appointed to the post of Fireman, the experience certificate shows that he had undergone training only for seven days, whereas some of the rejected candidates were having much better qualifications/experience.
18. During the selection of ASK, no marks were given while conduct of the practical test. The marks have been interpolated after deciding the relative merit of the candidates.
19. Ms. Nighat Bano had appeared for the written exam for LDC in the third batch. The third batch was given the second set of question paper. During the valuation of the answer sheets it was noticed that Ms Nighat Bano had got an unnaturally high score (85%). On scrutiny of her answer sheet, it was observed that the answers were for the first set of question paper, which was given to the 1st and 2nd batch of candidates for LDC exam. In view of the same her candidature was cancelled. The incident of Nighat Bano points out at the possibility of similar foul play in the selection procedure.
20. During the practical examination for Civ MTDs, the candidates driving experience certificates were not checked carefully and candidates giving incorrect information were not screened out. Sh. Avinash Sharma, who has been selected as the main candidate for Civ MTD (OBC) submitted an experience certificate of two years, whereas his driving license has been issued one and a half years back. On the strength of above report, it has been submitted that the BoO committed such irregularities and illegalities in the selection process which render the entire selection process illegal and there was no option except to quash the entire selection process.
14. On the other hand, learned counsel for the applicants has rebutted the above arguments by contending that the alleged irregularities and illegalities, pointed out by the respondents counsel, are minor abrasions and they are not worth to be considered for cancellation of entire selection process. It has also been submitted that the BoO has done a marvelous job by conducting the entire selection process within a short span of time. There was a direction to the BoO to conclude the entire selection process within a short period. It has also been submitted that the omissions alleged to have been committed by the BoO in the selection process, if any, was applicable to all the candidates who appeared in the examination and not only for the applicants, in question. Hence, it can be said that no prejudice has been caused to any candidate.
15. After hearing the learned counsel for the parties and their submissions made above, it is apparent from the record that for the selection of Fireman as per the guidelines given in the advertisement in the Employment News, measurement of chest unexpended and expended to ascertain the physical fitness of candidates was not carried out. The requisite endurance test of carrying weight of 63.5 kg for 183 meters within 96 seconds, clearing 2.7 meters wide ditch and landing on both feet (long jump) and climbing 3 meters vertical rope using hands and feet too was not carried out rather as endurance test the candidates were only meant to run a distance of 1.6 km. only. Thus, it is apparent that the actual fitness test which was required to test the endurance of Fireman was not carried out by the BoO. It goes to the very root of the test conducted by the BoO. Similarly, as regards the test of Mechanical Transport Driver Tradesman, it appears that the driving test was conducted for only half a km. however, as per the prescribed guidelines, it was not sufficient to ascertain the driving skills of the candidates. According to the guidelines given in the Employment News, night driving test of the candidates was not carried out, which was necessary. For typing test to L.D.C. post, though test was conducted but, the examiners were not given any guidelines to assess/evaluate the typing proficiency consequently marking was not carried out uniformly. Similarly for the post of L.D.C., it appears from the record that 11600 candidates appeared for the post of L.D.C. examination and after the written examination, top 10 candidates were called for the interview out of which only 04 appeared, and of this top 03 candidates had secured 124, 110 and 109 marks respectively but without giving any reason for rejecting the candidature of these candidates, the BoO reduced the cut off marks to 40% and 38 additional candidates were called for interview. The notable feature is that these candidates were called by telegram on 08.02.2011 with interview date as 11.02.2011. During the inquiry, it was also found that the candidates in the first round of interview were not found suitable, therefore, additional candidates were called. For the second round of interview, sufficient time was not given for out station candidates to report. As required by the guidelines, Headquarters, Maintenance Command was not informed of this deviation in procedure i.e. reducing the cut off marks and calling additional set of candidates for interview to the post of L.D.C. It was also found by the CoI during investigation that Shri Yogender- a candidate for the post of Electrician was unusually high and for the post of Civil MTD, there was a totaling error (lesser marks shown than what he actually got). As a result, the candidate Gaurav Mishra who would otherwise the main candidate became standby for the post of Civil MTD. Similarly for the post of ASK, the candidates who had cleared the written examination were short listed by carrying out interview first. Subsequently, the skill test of the short listed candidates was carried out whereas as per procedure the candidates were to be skill tested first and the candidates who are successful in the skill test only were to be called for the interview. Why this deviation has been made reason is best known to the BoO. It was also found by the CoI that no re-check was carried off the application forms which were rejected during the initial scrutiny. This was not proper as the forms should have been re-checked and it was possible that some other candidates would have got chance to appear in the test. Similarly, minimum marks were not stipulated for each trade, either by Headquarters Maintenance Command or by the Unit. In the test of Carpenter (HH OBC) the candidates who scored only 11% in the written test was called for interview/skill test and he was selected. Similarly, it was also found that marks in viva and skill test were inflated in case of main candidates, for the purpose of ensuring their selection. For example, a candidate for the post of ASK who secured only 24% marks in written examination and 38% in skill test was given 98.7% in viva. For the post of Cook, it appears that the favouritism was shown in case of two local candidates who had secured only 42% and 51% in written test but they were given 84% and 80% marks respectively in the skill test. Moreover, both these candidates, who were employed as Mess Orderlies, were given experience certificates as Cook in the Messes. It also transpired during the inquiry that in many cases no notice has been taken for the qualification or experience of candidates even when marks were to be given for this. As per guidelines, additional marks/weightage is to be given for the same. In the case of one of the candidates appointed to the post of Fireman, the experience certificate shows that he had undergone training only for seven days, whereas some of the rejected candidates were having much better qualifications/experience. During the selection of ASK, no marks were given while conducting the practical test. The marks have been interpolated after deciding the relative merit of the candidates. During investigation, it was also found that one Ms. Nighat Bano had appeared for the written examination for LDC in the third batch. The third batch was given the second set of question paper. During the valuation of the answer sheets it was noticed that Ms Nighat Bano had secured 85% marks. However, on scrutiny of her answer sheet, it was observed that the answers were for the first set of question paper, which was given to 1st and 2nd batch of candidates for the LDC examination. This incident of Nighat Bano points out at the possibility of similar foul play in the selection procedure with some other candidates also. Similarly during the practical examination for Civ MTDs, the candidates driving experience certificates were not checked carefully and candidates giving incorrect information were not screened out. For example, Shri Avinash Sharma, who has been selected as main candidate for Civ MTD (OBC) submitted an experience certificate of two years, whereas his driving license has been issued 1= years back.
16. The above discussions show that the discrepancies and irregularities pointed out by the CoI are factual and procedural apparently against the guidelines laid down for the conduct of selection process. The contention of applicants counsel that the officers of Board were under pressure of the higher authorities to complete the selection process in a short period, does not permit the BoO to forego the laid down procedure for selection of the candidates and to compromise with the merit of the candidates.
17. In view of the above facts and circumstances, it appears that the irregularities/illegalities committed by the BoO in the conduct of selection process goes to the very root of the selection process and in these circumstances it is concluded that the quashing of selection process is justified. Point No. 1 is decided accordingly.
18. As regards point No. 2, learned counsel for the applicants has vehemently argued that the applicants were issued appointment letters and in compliance of the same, they have joined their posts and they have worked on their posts for about 19 months. Hence, all of a sudden their services cannot be terminated by the respondents without giving them a show cause notice or proper opportunity of hearing. Apparently, no opportunity of hearing has been given to them which is clear cut violation of principles of natural justice and on this ground alone termination order of the applicants is liable to be set aside. In support of his contentions, he has placed reliance on the following case laws: -
(a) U.C. Mishra Vs. State of U.P. and another 2013 (2) ADJ 613 Allahabad High Court, Lucknow Bench;
(b) Pawan Kumar Singh Vs. State of U.P. and others 2008 (10) ADJ 321 Allahabad High Court;
(c) Ram Abhilash Maurya and others Vs. State of U.P. and others 2009 (2) ADJ 106;
(d) State Bank of India and others Vs. Palak Modi and another with State Bank of India and another Vs. Minshu Saxena and another 2013 (3) Supreme Court Cases 607;
(e) Inder Preet Singh Khalon Vs. State of Punjab and others (2006) 11 SCC 356;
(f) Union of India Vs. Rajesh P.U. Puthuvalnkathu and another (2003) 7 SCC 285;
(g) Smt. Maneka Gandhi Vs. Union of India and another;
We have respectfully gone through the aforesaid cases relied upon by learned counsel for the applicants.
As regards the case of U.C. Mishra (supra), it appears that it was a case of Land Acquisition Act in which certain observations were made against the petitioner by the Presiding Officer who had disposed of that case making certain allegations against him in which the Honble High Court has observed that as per principles of natural justice, no material should be utilised against a person unless he has been given proper opportunity to explain it. Apparently, facts and circumstances of this case are different from the facts of present O.A. Hence, applicants cannot get any benefit of this case.
As regards the case of Pawan Kumar Singh (supra), it appears that it was a case relating to termination of Police Constables who had filed Writ Petitions before the Honble High Court in which it was observed by the Honble High Court that two members of the Committee of four members constituted for an enquiry into the complaints of corruption were the officers who were part of selection process which shows that the Committee is lacking fair and just element. Even in enquiry only tentative findings on unfairness was recorded without proper application of mind. Thus, it appears that the facts and circumstances of the above case are quite different and of no use to the applicants.
As regards the case of Ram Abhilash Maurya and others (supra), it appears that it is relating to cancellation of selection and appointment for the post of Safai Karami and the selection was cancelled due to irregularity and mal-practice. No allegations of corrupt practice were made in any complaint nor Inquiry Committee found that any member of Selection Committee was interested and had taken money for selection of candidates nor acceptance of any bribes in selecting the candidates though the District Magistrate had ordered for holding fresh selection. In these circumstances, the Honble High Court held the Order of the District Magistrate unreasonable and violative of Rule 14 of the Constitution. The facts and circumstances of this case also are quite different and not applicable to the present case before us for consideration.
As regards the case of State Bank of India and another Vs. Palak Modi (supra), there was allegation of misconduct against the probationers in the examination for confirmation in which the examining body had sent a report to the Bank stating that some candidates including private respondents were suspected of using unfair means. After four days, respondent No. 3 issued letters dated 14.05.2011 extending the probation of the private respondents for three months by invoking Rule 16 (2) of the State Bank of India Officers Service Rules, 1992. However, even before the expiry of the extended period of probation, the services of the private respondents were terminated under Rule 16 (3) of the 1992 Rules. Accordingly, private respondents filed the Writ Petitions challenging the termination of their services in which the Honble Apex Court held that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if an allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice. Apparently, in that case there was allegation of misconduct against the candidates but in the present case it is not a case of misconduct against any applicants. Hence, the applicants cannot get any benefit of this case also.
As regards the case of Inderpreet Singh Kahlon and others (supra), learned counsel for the applicants had laid much emphasis on this case contending that the entire selection process cannot be cancelled. In that case, the Honble Supreme Court has held (per curiam) when services of employees are terminated for aiding and abetting corruption, Court must satisfy itself that conditions there for exist. The Court once set aside the selection may require the State to establish that process was so tainted that the entire selection process is liable to be cancelled. Only if it is found to be impossible or highly improbable to separate cases of tainted persons from those of non-tainted ones, can the cancellation of entire selection process/en masse termination be ordered. It has further been held If services of appointees who had put in a few years of service are to be terminated, compliance with following principles by State is imperative: (1) sufficient materials are to be collected, to be gathered by through investigation in fair and transparent manner; (2) illegalities committed must go to the root of the matter, vitiating entire selection process; and (3) the appointees/ officers in majority must be found to be part of the fraudulent purpose or the system itself must be found to be corrupt. In present case, above principles not having been adhered to and since it could not be said that a fair investigation into the suspected selection process to the Punjab PCS for the years 1998-2001 was an impossible task, or despite availability of a large part of the records a thorough investigation had been made so as to arrive at a satisfaction that the entire selection process suffered from a large-scale fraud, High Court did not rightly apply the principle of mass cheating cases in the instant case and approve the en masse termination of services of the appellants by the State. A perusal of the aforesaid observation of the Honble Supreme Court shows that as regards the facts of present O.A., we have already discussed above that the Court of Inquiry (CoI) has thoroughly investigated the entire matter in a fair and transparent manner and had come to the conclusion that at every stage of selection process irregularities and illegalities and favoritism have been committed. Thus, applicants cannot get any benefit of this case law also.
As regard the case of Union of India vs. Rajesh P.U. Puthuvalnkathu and another (supra), it appears that in that case as per committees report separation of tainted candidates with non-tainted candidates was possible as in all 31 specific number of candidates were noticed to be tainted. In that condition, it was held where from out of the selectees it was possible to weed out the beneficiaries of irregularities and illegalities, there was no justification to deny appointment to those selected candidates whose selection was not vitiated in any manner and accordingly on facts, the decision cancelling the selection in their entirety was rightly held to be irrational by the High Court and ultimately upheld by the Supreme Court. In the present case before us as it has already been discussed above separation of cases of tainted candidates with non tainted candidates is not possible and here the selection process itself appears to be tainted hence, the facts and circumstances of the above case do not apply to the present case.
As regards the case of Smt. Maneka Gandhi (supra), it was a case where the passport of petitioner was impounded in public interest by an order of the Government of India. Apparently, the facts and circumstances of this case is quite different from the facts of present O.A. Accordingly, this case law also is of no help to the applicants.
19. On the other hand learned counsel for the respondents has drawn our attention towards the observations made by the Honble Apex Court in the case of Union of India & Others Vs. O. Chakradhar, decided on 19.02.2002. In that case, as the facts revealed, the Railway Recruitment Board, Bangalore issued an advertisement notice 4 of 1995 for recruitment to the posts of Junior Clerk cum Typist. In pursuance of the selection held, the respondent was appointed as Junior Clerk cum Typist on 28.06.1996. After about three years of appointment, a communication dated 21.04.1999 was received by the respondent from the Railway administration that the Railway Recruitment Board, Bangalore has not subjected the candidates to typewriting test which was an essential requirement besides there being certain serious irregularities in the conduct of examination. The Railway Board ultimately cancelled the entire panel and terminated the services of all the candidates so appointed. The respondent preferred an O.A. before the Central Administrative Tribunal challenging the order of his termination. The Tribunal held the termination order bad as it was in violation of principles of natural justice as according to the Tribunal it was only a general allegation that the typewriting test was not conducted. A Writ Petition was preferred by the petitioner before the Honble High Court, which upheld the Order of the Tribunal mainly on the ground that there was violation of principles of natural justice. The Union of India approached the Honble Apex Court in which it was observed as follows: -
As per the report of the CBI whole selection smacks of mala fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so inter-mixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could such selection be acted upon in the matter of public employment? We are therefore of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishna Yadav (supra) applies to the facts of the present case. The Railway Boards decision to cancel the selection cannot be faulted with. On the strength of the observations made in this case by the Honble Apex Court, it has been submitted by learned counsel for the respondents that in the present O.A. the facts and circumstances are such which show that the Board of Officers have committed such irregularities and illegalities in selection of each trade which go the very root of the selection process and there was no need to issue show cause notice to any candidate as there was no allegation against any particular candidate. The entire selection was tainted hence no show cause notice was given to the applicants and there was no violation of principles of natural justice in this case.
20. In the case of Krishna Yadav Vs. State of Haryana 1994 (4) SCC 165 also it was held by the Honble Supreme Court in a case where irregularity committed in the process of selection is all pervasive vitiating the whole selection in that event it would not be required that each selectee be served with individual show cause notice. In such circumstances, it will be open to cancel the whole selection.
21. In view of the above discussions, it is clear from the record that as per the report of CoI, all norms appears to have been violated at each stage right from the stage of entertaining applications, conducting examination, taking interview and evaluation of answer sheets. In such circumstances, it may not be possible to pick out or choose any few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so inter-mixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. In these circumstances, there was no need to issue any notice of misconduct to any of the applicants/candidates for giving his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection. It is difficult to separate the cases of some of the candidates from the rest even if there may be some.
22. Accordingly, the O.A. is devoid of merit and it deserves to be dismissed. O.A. is hereby dismissed. No order as to costs.
23. Interim order granted earlier stands vacated forthwith.
(Ms. B. Bhamathi) {Justice S.S. Tiwari}
Member-A Member-J
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