Allahabad High Court
Maya vs State Of U.P. Thru Chief Secy. & 4 Ors. on 4 December, 2012
Author: Narayan Shukla
Bench: Narayan Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Writ Petition No. 3129 (S/S) of 2008
Maya Petitioner
Vs.
State of Uttar Pradesh through its Chief Secretary
Chief Secretariat, Lucknow and others........ Opp. Parties
&
Writ Petition No.3304(S/S) of 2008
Aditya Bhushan Petitioner
Vs.
State of Uttar Pradesh through its Chief Secretary,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.3305(S/S) of 2008
Dharam Dev Rem Petitioner
Vs.
State of Uttar Pradesh through its Chief Secretary,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.3357(S/S) of 2008
Satish Kumar Kanaujia Petitioner
Vs.
State of Uttar Pradesh through its Principal Secretary,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.3434(S/S) of 2008
Durgesh Kumar Petitioner
Vs.
State of Uttar Pradesh through its Chief Secretary,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.3655(S/S) of 2008
Sanjay Kumar Singh Petitioner
Vs.
State of Uttar Pradesh through its Chief Secretary,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.3656(S/S) of 2008
Arvind Kumar Yadav and others Petitioner
Vs.
State of Uttar Pradesh through its Chief Secretary,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.2019(S/S) of 2008
Pradeep Kumar Petitioner
Vs.
State of Uttar Pradesh through the Principal Secretary,
Department of Minor Irrigation and Ground Water,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.4049(S/S) of 2008
Shrichand and another Petitioner
Vs.
State of Uttar Pradesh through the Principal Secretary,
Department of Ground Water,Civil Secretariat,
Lucknow and others............ Opp. Parties
&
Writ Petition No.2061(S/S) of 2008
Km. Priyanka Singh and another Petitioner
Vs.
State of Uttar Pradesh through its Principal Secretary
of Minor Irrigation U.P.Civil Secretariat,
Lucknow and others............ Opp. Parties
&
Writ Petition No.2237(S/S) of 2008
Amar Singh Yadav Petitioner
Vs.
State of Uttar Pradesh through its Principal Secretary
of Minor Irrigation U.P.Civil Secretariat,
Lucknow and others............ Opp. Parties
&
Writ Petition No.6116(S/S) of 2008
Rajendra Singh Petitioner
Vs.
State of Uttar Pradesh through the Principal Secretary,
Department of Minor Irrigation and Ground Water,
Civil Secretariat, Lucknow and others............ Opp. Parties
&
Writ Petition No.3303(S/S) of 2008
Anand Kumar Petitioner
Vs.
State of Uttar Pradesh through its Chief Secretary,
Civil Secretariat, Lucknow and others............ Opp. Parties
Hon'ble Shri Narayan Shukla,J.
Heard Sri Rakesh Srivastava, learned counsel for the petitioner, Shri S.C. Yadav, learned counsel for opposite parties no. 6 to 14 and Mr. Rohit Verma, learned Standing Counsel.
In substance the petitioners are aggrieved with the constitution of the Selection Committee under the Chairmanship of Mr Arun Kumar Khare as well as against non implementation of the recommendations of the Selection Committee constituted under the chairmanship of Mr S.S. Singh Yadav.
Briefly stated, facts of the case are that the State Government took a decision to fill up the vacancies of different posts of the Scheduled Caste and Scheduled Tribes category under the back log quota.The advertisements were issued inviting applications. The Director, Ground Water Department, U.P., i.e. opposite party No. 3 constituted a selection committee on 19th September, 2007. One Sri C.S. Agarwal, Executive Engineer was nominated as Chairman of the said committee along with four other persons as members of the committee. The petitioners applied against the different posts.
Since Selection Committee constituted under the chairmanship of Mr Agrawal was not proceeding speedily, the O.P. 3 replaced Mr Agrawal by Sri S.S. Singh Yadav. This Selection Committee held written examination as well as interview for some post advertised through different advertisements.
The petitioners claim that they appeared in the examination and interview against the respective posts. The Selection Committee after holding written examination as well as interview forwarded its recommendations to the opposite party no. 3 for issuing appointment orders but instead of implementing the same, the opposite party no. 3 constituted a new Selection Committee in which he nominated to himself as Chairman by means of Office Memorandum dated 4th February, 2008. The petitioners claim that since opposite party no.3 was interested to select his favorite persons, he malafidely cancelled earlier Selection Committee headed by Shri S.S. Singh Yadav. It is further stated that the Opposite Party no. 3 issued a back dated order on 4th February, 2008, constituting a new Selection Committee, which was absolutely arbitrary, illegal and without jurisdiction and full of mala fide. However, by means of another order dated 8.2.2008, the opposite party no. 2, i.e, Principal Secretary of the Department, on the event of constitution of fresh selection committee, issued a notice to the opposite party no. 3 to show cause for committing delay in selection of the back log quota.
It is pertinent to mention here that meanwhile, the State Government issued directions on 11th and 23 rd January, 2008 to complete the selection process and if the process of interview has been completed, issue the appointment orders.
The petitioners submit that their names were recommended for appointment on the respective posts. On enquiry it revealed to the petitioners that vide order dated 7 th November, 2000, another Selection Committee was constituted who made selection of 20 posts of Regional Assistant and 9 posts of Data Processor as well as against other posts also, whereas, against the said selection several complaints were made. On the aforesaid back drop the petitioner based her claim of appointment on the respective post on the basis of recommendation of the Selection Committee, headed by Mr S.S. Yadav.
In reply learned Standing Counsel submitted that in order to fulfill the back log quota, the State Government initiated special drive to make selection, in pursuance thereto advertisements were issued. A Selection Committee was constituted under the chairmanship of Mr C.S. Agrawal but since the Committee was moving slow and also misbehaving and disobeying the directions issued by the State Government as well as opposite party no.3, a new Committee was constituted under the chairmanship of Mr S.S. Singh Yadav, who proceeded for selection under Rule 5(6) of U.P. Rules 2002. Under the aforesaid rule, it is provided that after completion of selection process, the select list would be provided to the appointing authority.
It is stated that the appointing authority is the respondent no. 3 whereas the Selection Committee sent the select list directly to the State Government without informing opposing party no.3, which exposed secrecy of the selection, therefore, respondent no. 3 cancelled the Selection Committee and constituted a fresh Selection Committee under the chairmanship of Mr M.M. Ansari by means of office memorandum dated 4th February, 2008. On the complaint, the State Government interfered with the matter and restrained the Committee to work. Therefore, respondent no. 3 again cancelled the Selection Committee constituted by the Office Memorandum dated 4.2.2008.
Respondent no. 3 also submitted reply to the State Government as he was asked to explain his conduct. Since the State Government had shown its satisfaction with the explanation of respondent no. 3, the respondent no. 3 constituted new Selection Committee under the Chairmanship of one Sri Arun Kumar Khare to proceed a fresh. In order to proceed a fresh selection again an advertisement was issued fixing the date of interview in which all the candidates, who had applied earlier pursuant to different advertisements were allowed to participate. This time Selection Committee completed the selection process on the basis of which the appointment letters have been issued.
The petitioners participated in interview. They did not raise any objection at that stage. This time the Committee recommended the candidates for selection. In pursuance of the said recommendations, respondent no. 3 issued appointment orders to the candidates on 11.6.2008. The petitioners, whose names were not recommended by the Committee, since they could not succeed in the selection, now at this stage they have filed writ petitions challenging the publication dated 23.5.2008. It is further stated that the petitioner cannot approbate and reprobate at the same time. The respondent has also categorically given the details of the recommendation of the erstwhile committees.
One fact that has also been pointed out by learned Standing counsel that since despite the fact that recommendation of the second committee was not binding, the then Director Mr M.M. Ansari made some appointments pursuant to the said recommendation for which he was put for departmental enquiry. Mr Ansari challenged the same before this Court through W.P.No. 35833 of 2010. The Inquiry Officer completed the enquiry and submitted a report to the disciplinary authority, i.e, the State Government, who issued show cause notice dated 16.3.2011 with proposed punishment and also took consent of the U.P. Public Service Commission, Allahabad. However, the decision on the final punishment is still pending consideration.
As per direction of this Court, the learned Standing Counsel produced relevant record of selection, which contains the recommendation of the Selection Committee headed by Mr S.S. Singh Yadav, Chairman of the Selection Committee, upon perusal of which I find that the said committee held interview from 16.2.2008 to 26.2.2008 for 8 posts of Data Processor, pursuant to the advertisement no. 5 reserved for Scheduled Castes and prepared a select list of 8 candidates and waiting list of 4 candidates. The petitioner of W.P. No. 3129(SS) of 2008 is placed at serial no. 1 in the select list. In the said record the select list of the candidates for the post of Filed Assistant is also available which contains the names of 18 candidates in the select list against 18 posts of Field Assistant and waiting list of 8 candidates. The selection was also completed under the Chairmanship of Mr S.S. Singh Yadav in which the petitioner is placed at serial no.1.
In addition to the above documents, the learned Standing Counsel also placed the record of final selection made by the Selection Committee under the Chairmanship of Mr Arun Kumar Khare. The committee under the chairmanship of Sri Arun Kumar Khare was constituted by the Director of Department on 1.5.2008. It held the interview of the candidates for the post of Data Processor and prepared a select list of 9 candidates for selection against the post of Data Processor, pursuant to the advertisement nos. 3 and 5 in which the petitioner's name does not find place.
The other petitioners also claim that their names were recommended for issuing appointment orders.
The petitioners claim the respondents' action as arbitrary with the submission that the recommendation of the selection committee for their appointments have been negated without any reason and submit that same warrants interference by this Court for cancellation of the subsequent selection made against the same very post by another Selection committee and they have also challenged the appointment of the selected candidates.
In support of the petitioners' claim, the learned counsel for the petitioners cited a decision of Hon'ble Supreme Court rendered in the case of A.P. Aggarwal Vs. Govt. of NCT of Delhi and another (2000) 1 Supreme Court Cases 600. In this case the Selection Committee recommended a panel of two names for consideration for appointment by the Central Government. The central Government appointed one person but instead of appointing the appellant, who was second person, chose to cause a fresh advertisement to be issued calling for fresh applications. Meanwhile, the appellant made representations and filed Original Application before the Central Administrative Tribunal. The Tribunal quashed the fresh advertisement and issued directions to appoint the appellant as a member. The respondent contested the application on the ground that the appellant did not get any right by inclusion of his name in the panel. The Tribunal opined that it was open to the Government to resort to fresh selection process and dismissed the appellant's application. The appellant field a writ petition before the High Court at Delhi which was dismissed in limine. Then he approached Hon'ble the Supreme Court. Hon'ble Supreme Court held as under;
"In our opinion, this is a case of conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. Even if it is to be said that the instructions contained in the office memorandum dated 14.5.1987 are discretionary and not mandatory, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also satisfy the mandatory requirement of the statute. It is not therefore open to the Government to ignore the panel which was already approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same. It is not the case of the Government at any state that the appellant is not fit to occupy the post. No attempt was made before the Tribunal or before this Court to place any valid reason for ignoring the appellant and launching a fresh process of selection."
With the aforesaid observation Hon'ble the Supreme Court allowed the appeal and directed the respondents to appoint the appellant as Member, Sales Tax Appellate Tribunal as he is the only other person in the panel of names selected by the Select Committee and as nothing has been brought out against him by the Government.
Learned counsel for the petitioner further relied upon another decision of Hon'ble the Supreme Court Union of India and others Vs. Rajesh P.U. Puthuvalnikathu and another (2003) 7 Supreme Court Cases 285. In this case a list of selected candidates was cancelled by the competent authority. Unsuccessful candidates filed an application before the Central Administrative Tribunal by making allegations of favoritism and nepotism on the part of the officers in conducting the Physical Efficiency Test. The Tribunal dismissed the application on the ground that there was no legitimate cause of action. Aggrieved applicants moved to the Kerala High Court. The High Court allowed the appeal and directed to correct the mistakes in the selection by rearranging the select list and completing the selection as per the re-evaluation found to be necessitated by the very Committee constituted for analyzing the position and in the light of its very report. The appellants filed an appeal before the Hon'ble Supreme Court. Hon'ble Supreme Court did not find any infirmity in the judgment of the High Court and dismissed the appeal.
On the other hand, learned Standing Counsel placed reliance upon the case of Dhananjay Malik and others Vs. State of Uttranchal and others (2008) 4 Supreme Court Cases 171. In this case Hon'ble the Supreme Court held that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission, who interviewed the petitioners , the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance, they cannot turn around and subsequently contend that the Selection Committee was not properly constituted and the process of interview was unfair.
Mr. Rohit Verma, learned Standing Counsel also placed some decisions of the Hon. Supreme Court, which are considered as under:-
(1) State of U.P. and another vs.Nidhi Khanna and another (2007) 5 Supreme Court Cases 572. In this case the vacancies of Lecturers in different Colleges were advertised. The respondent no. 1- Writ Petitioner applied for the post of Lecturer in Geography in August, 2000. A select list was prepared on 19.7.2001. Respondent no.1 was declared selected but her name was placed at serial no. 1 in the wait list of General category candidates. However, she was issued an appointment order but according to the appellants she did not join. Hence another candidate was appointed in her place. On 5.3.2003, another merit list was prepared pursuant to different advertisement. Respondent no. 1 claimed her right of appointment against the said vacancies. However, her request was rejected by the appellant on the ground that a new list was prepared under different advertisement. The select list in which respondent was placed was valid only till new list was prepared. Thus, it had lapsed on the event of preparation of a new list. Therefore, she could not be appointed after the new list was prepared. The High Court had issued directions to the authorities to give her appointment. The matter reached the Hon'ble Supreme Court. The Hon'ble Supreme Court relying upon its earlier decision of Kamlesh kumar Sharma Vs. Yogesh Kumar Gupta reported in ( 1998) 3 SCC 45 held that the appellant were right in their submissions that the respondent could be appointed in pursuance of Advertisement No. 32 since she was selected and empanelled pursuant to Advertisement No. 29.
In the case of Jai Singh Dalai and others Vs State of Haryana and another reported in 1993 Supp.(2) Supreme Court Cases 600 Hon'ble Supreme Court held that merely because the State Government had sent a requisition to the Haryana Public Service Commission to select candidates for appointment did not create any vested right in the candidates called for interview, regardless of the fact that the selection process had reached an advanced stage. It does not matter whether the selection process is arrested by cancelling the earlier notification by another notification or by mere communication addressed to the HPSC. Even if the Commission were to complete the process and select candidates, such selection by itself would not confer a right to appointment and the Government may refuse to make an appointment for valid reason. At best Government may be required to justify its action on the touchstone of Article 14 of the Constitution.
In the case of Madan Lal and others Vs. State of J & K. and others (1995) 3 Supreme Court Cases 486 the petitioners challenged the process of selection of Munsifs. Hon'ble Supreme Court held that validity of viva voce cannot be judged simply on the basis of the result thereof unless there is anything to show that the entire selection process was vitiated on account of mala fides or bias or that the Interview Committee Members had acted with an ulterior motive from the very beginning and the whole selection process was a camouflage .
In the case of Shankarsan Dash Vs. Union of India (1991) 3 Supreme Court Cases 47 a Constitution Bench of Hon'ble the Supreme Court examined the value of the select list deeply and elaborately as the Division Bench referred the matter before the Constitution Bench for examination of the question whether a candidate whose name appears in the merit list on the basis of competitive examination acquires indefeasible right to appointment as a Government servant if a vacancy exists on the announcement of appellant's name in the select list in IPS and he was offered appointment to the Delhi, Andaman and Nicobar Police Service. Subsequently 14 vacancies arose in IPS in which against the vacancy which was to be filled up by the candidates who had been earlier appointed, the appellant claimed his appointment but the request was turned down. Then the appellant moved Delhi High Court by a writ application which was dismissed in limine. Then he reached the Supreme Court. Hon'ble Supreme Court held that process of final selection had to be closed at some stage as was actually done. A decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed. It was expressly ruled by Hon'ble Supreme Court that existence of a vacancy does not give legal right to a selected candidate. Similarly the claim of some of the candidates selected for appointment was turned down holding that it was open to the Government to decide as to how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection.
The selection records provided by the Government discloses that the Selection Committee headed by Sri S.S. Singh Yadav prepared a select list of the candidates for appointment against the post of Data Processor and Technical Assistant and provided it to the Director Ground Water Department State Government for further action. Therefore, the contention of learned Standing Counsel that the recommendation was directly sent to the Government instead of sending it to the Director of the Department is unfounded.
So far as allegation of irregularity allegedly omitted in the selection process is concerned, I do not find any such irregularity reported in the selection. Therefore, the said ground also appears baseless. However,the fact remains that said recommendation was not implemented and a different selection committee was constituted which also issued an advertisement inviting applications in which the candidates, who had submitted the applications pursuant to the advertisement issued earlier as well as appeared in the interview had also been permitted to apply. They applied also, more so appeared in the Interview Board but could not succeed. Therefore, now at this stage they are called as unsuccessful candidates.
Therefore, at this stage there are two basic questions for consideration. Firstly, whether unsuccessful candidates can challenge the constitution of the selection committee as well as the process of selection adopted by. Secondly, whether the candidates being in the select list have any right to claim their appointments on the basis of their being placed in the select list.
In the matter following facts are undisputed;
Through various advertisements applications were invited for appointment of different posts. The petitioners applied against the different posts. The selection committee under the Chairmanship of Sri S.S. Singh Yadav prepared the select list and sent it to the State Government for issuing appointment orders. At some point of time the State Government had also shown its willingness to expedite the selection procedure and issue appointment orders but it could not be finalized and a fresh advertisement was issued by permitting the candidates including the petitioners who had already applied pursuant to the earlier advertisements, to apply in the same. The petitioners also applied . They appeared before the Interview Board but in this time the Selection Committee constituted under the different Chairmanships did not select them. Thus, they are definitely unsuccessful candidates of the same very selection which is under challenge.
Hon'ble the Supreme Court in the Dhananjay Malik's case (supra) has held that unsuccessful candidates cannot challenge the selection on the ground that the Selection Committee was not properly constituted or the process of selection was unfair.
The scope of rights of the candidates, who are empanelled in the select list but have not been given appointment has been discussed by Hon'ble the Supreme Court. The Constitution Bench of Hon'ble the Supreme Court in the case of Shankarsan Dash(supra) has held that the candidates empanelled in the merit list do not acquire indefeasible right of appointment. Only the exception has been carved out on the event of violation of Article 14 of the Constitution of India. In the instant case the whole selection was cancelled and none of the candidates empanalled in the select list prepared by the Committee under the Chairmanship of Sri S.S. Singh Yadav has been given appointment. Though the petitioner has adverted the mala fideness of the respondents but no substantive material has been brought on record to establish it. Only the decision for cancellation of selection and initiate fresh proceedings cannot be said to be mala fide.
In the light of the decisions discussed, herein above, I am of the considered opinion that even the petitioners being empanalled in the select list have no right to claim appointment save violation of Article 14 of the Constitution of India. In the instant case no element of discrimination exists.
Therefore, I am of the view that no interference is warranted in the selection, which has been given effect to, by issuing orders of appointment in favour of the private respondents.
The writ petitions stand dismissed.
Order Dated:4.12.2012 Tripathi