Allahabad High Court
Neeraj Kumar vs State Of U.P. Thru Prin.Secy.Deptt.Of ... on 25 July, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 20 Case :- SERVICE SINGLE No. - 7426 of 2014 Petitioner :- Neeraj Kumar Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Medical & Health & Anr. Counsel for Petitioner :- Kshemendra Shukla,Pranshu Agrawal,Somesh Tripathi Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and Sri D.C.Pathak, learned Additional Chief Standing counsel appearing for the State-respondents.
2. Under challenge is the order dated 21.10.2014 passed by the respondent no. 1 i.e Principal Secretary, Department of Medical and Health, Government of U.P, Civil Secretariat, Lucknow, a copy of which is annexure 1 to the petition by which the selection for the post of X-ray Technician initiated through advertisement dated 15.10.2013 has been cancelled on the grounds as indicated in the said order. A further prayer is for a Mandamus commanding the respondents to complete the formalities of the selection process for the aforesaid post and for declaration of the result.
3. The case set forth by the petitioner is that an advertisement dated 10.09.2010 was issued by the respondent no. 2 for filling up 13 posts of X-ray Technician. Again an advertisement dated 23.02.2011 was issued by the respondent no. 2 for filling up 102 posts of X-ray Technician. In pursuance thereof, the selection process started and in February, 2012 an interview had been fixed. Subsequently after the selection had taken place, a new Government was formed in July, 2012 which cancelled the entire selection process vide order dated 17.07.2012 for the post of X-ray Technician. The said decision was challenged before this Court by various persons in Writ petition No. 3807 (SS) of 2012 Inre; Chanchal Mishra and Ors Vs. State of U.P and Ors. This Court vide order dated 18.08.2012 passed an interim order restraining the respondents from holding a fresh selection for the post of X-ray Technician. Subsequently, this Court vide order dated 17.12.2012, a copy of which is annexure 6 to the petition modified the earlier order and directed the respondents to initiate and complete the process of selection for regular appointment on the post of X-ray Technician within a period of three months. In pursuance thereof, the respondents issued an advertisement dated 15.10.2013 for filling in 287 posts of X-ray Technician. The petitioner applied in pursuance thereof. A complaint was made against the said selection and an inquiry was constituted on the basis of the said complaint. The inquiry report was submitted and thereafter the impugned order dated 21.10.2014 was passed by the respondents cancelling the entire selection process. Being aggrieved with the said order, the present petition has been filed.
4. Learned counsel for the petitioner contends that four grounds have been indicated while cancelling the selection process as initiated in pursuance to the advertisement dated 15.10.2013 i.e (a) there was no transparency in the selection process adopted by the private agency which was conducting the selection (b) there was complaint against one officer, who was a member of the selection committee, of having indulged in corruption and being partisan (c) there was difference in the ink of the marks awarded to the candidates and even the handwriting was different whereby the selection process became suspect and (d) complaints have been received pertaining to corrupt practices having been adopted in the selection.
5. Learned counsel for the petitioner contends that the entire selection could not have been cancelled by the respondents on the aforesaid grounds rather the selection was cancelled in order to accommodate certain persons who are unhappy with the selection. It is also contended that once the selection process had commenced the respondents were precluded from cancelling the same as the petitioner acquired a vested right for appointment. It is not the case of the petitioner that he was ever selected.
6. In this regard, learned counsel for the petitioner has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Inderpreet Singh Kahlon and ors Vs. State of Punjab and Ors reported in (2006) 11 SCC 356 and Joginder Pal and Ors Vs. State of Punjab and Ors reported in (2014) 6 SCC 644.
7. On the other hand, Sri. D.C. Pathak, learned Additional Standing counsel on the basis of averments contained in the counter affidavit argues that the order dated 21.10.2014 is as a result of the findings of the inquiry committee that had been constituted to inquire into the allegations that had been levelled against the said selection in pursuance to the advertisement dated 15.10.2013 for filling in the posts of X-ray Technician. The said findings were given by two member inquiry committee which had been constituted comprising of the Special Secretary, Medical and Director (Administration), Medical and Health which submitted its report on 08.08.2014 indicating the irregularities and illegalities committed during the course of interview as have been detailed in the impugned order. It is further contended that the petitioner had only applied in terms of the advertisement issued with respect to the post of X-ray Technician and neither he was selected nor any appointment order was issued and thus he did not acquire any vested or indefeasible right for being appointed in pursuance to the said selection. Even otherwise, in terms of the report submitted by the inquiry committee, irregularities were writ large in the said selection and consequently in order to adopt a transparent procedure, the selection has been cancelled. In this regard, reliance has been placed upon the judgment of the Hon'ble Supreme Court in the case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47, State of Haryana Vs. Shubhas Chandra reported in (1974) 3 SCC 220, All India SC and ST Association Vs. A. Arthana reported in (2001) 6 SCC 380 as well as recent judgment of the Apex Court in the case of Kerala State Road Transport Corporation and Another Vs. Akhilesh V. in Civil Appeal No. 3346 of 2019 decided on 01.04.2019.
8. Heard the learned counsels for the contesting parties and perused the records.
9. From a perusal of records and the arguments as raised by the learned counsels, it clearly comes out that the petitioner had applied for appointment in pursuance to the advertisement dated 15.10.2013 for the post of X-Ray Technician. Even before the said selection could be finalized, the respondents cancelled the entire selection in pursuance to an inquiry being conducted with respect to complaints being received of illegalities having been committed during the course of selection. After a two member inquiry committee report, the selection, as initiated through the advertisement dated 15.10.2013, has been cancelled by means of the impugned order dated 21.10.2014 on the following grounds namely (a) there was no transparency in the selection process adopted by the private agency which was conducting the selection (b) there was complaint against one officer who was the member of the selection committee of having indulged in corruption and being partisan (c) there was difference in the ink of the marks awarded to the candidates and even the handwriting was different whereby the selection process became suspect and (d) complaints have been received pertaining to corrupt practices having been adopted in the selection. The question in issue would be as to whether a candidate has got an indefeasible right for appointment.
10. The case Inderpreet Singh Kahlon (supra) over which reliance has been placed by the learned counsel for the petitioner, was a case whereby the selection process was cancelled on account of being vitiated by corruption after the selected persons had put in a few years of service. In the instant case, the petitioner was not even selected when the selection process was cancelled and thus the said judgment is distinguishable on its own facts.
11. In the case of Joginder Pal (supra), the selection process was cancelled on the ground of purported manipulation, forgery and fraud having been committed in the selection process. In the said case, various persons had been appointed in pursuance to the selection process conducted by the Punjab Public Service Commission. Even before the selected candidates could complete their probation period, their service was terminated on the aforesaid ground of forgery, manipulation and fraud. The Apex Court held that where it is possible to segregate the tainted candidates from the untainted ones, cancellation of entire selection process would not be justified. Again, in the present case, no selection had taken place rather prior to completion of selection process, the selection has been cancelled.
12. On the other hand, the Apex Court in the case of Shankarsan Dash (supra) has held as under:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha (1973)IILLJ266SC, Neelima Shangla vs. State of Haryana [1986]3SCR785 or Jatendra Kumar vs. State of Punjab AIR1984SC1850 ."
13. Likewise, the Apex Court in the case of Shubhas Chandra (supra) has held as under:-
10. One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.
14. The Hon'ble Supreme Court in the case of All India SC and ST Association (supra) has held as under:-
"10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash Vs. Union of India Para 7 of the said judgment reads thus :-
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha (1973)IILLJ266SC, Neelima Shangla vs. State of Haryana [1986]3SCR785 or Jatendra Kumar vs. State of Punjab AIR1984SC1850 ."
15. Likewise, the Hon'ble Supreme Court in the case of Akhilesh V. (supra) has held as under:-
"4. The short question arising for consideration in these appeals is whether mere empanelment can justify a mandamus to make appointments because vacancies may exist. Additionally, whether mandamus can be issued to make appointments from the panel on vacancies which may have arisen subsequently due to superannuation etc. during the life of the rank list. The question assumes significance in view of the stand of the Appellant that it did not wish to make any further appointments due to a financial crunch and a skewed bus to passenger ratio, and for which purpose it had also appointed a committee to recommend remedial measures.
5. We have heard the counsel for the parties and opine that the order of the High Court is unsustainable. The cadre strength has rightly been held not to be a relevant consideration. The High Court has erred in issuance of mandamus to fill up a total of 97 vacancies, including those arising subsequently but during the life of the rank list. Vacancies which may have arisen subsequently could not be clubbed with the earlier requisition and necessarily had to be part of another selection process. The law stands settled that mere existence of vacancies or empanelment does not create any indefeasible right to appointment. The employer also has the discretion not to fill up all requisitioned vacancies, but which has to be for valid and germane reasons not afflicted by arbitrariness. The Appellant contends a financial crunch along with a skewed staff/bus ratio which are definitely valid and genuine grounds for not making further appointments. The court cannot substitute its views over that of the Appellant, much less issue a mandamus imposing obligations on the Appellant corporation which it is unable to meet.
6. Suffice to observe from Kulwinder Pal Singh v. State of Punjab, (2016) 6 SCC 532:
12. In Manoj Manu v. Union of India, (2013) 12 SCC 171, it was held that (para 10) merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies...."
16. A Division Bench of this Court in case of Tribhuwan Nath Singh Vs. Union of India and Ors passed in Civil Misc. Writ Petition No. 48732 of 2005 decided on 08.05.2007 in a matter pertaining to cancellation of selection by the Railway Board where large scale irregularities had been alleged, has held as under:-
"In the matter of selection, where the authorities have decided to cancel and examination on account of wide spread malpractice, the scope of judicial review is very limited and unless material available on record is so evident which may demonstrate arbitrariness and perversity in the decision of the authorities, the Court would not interfere ordinarily. In Madhyamik Shiksha Mandal Vs. Abhilash Shiksha Prasar Samiti, 1998 (9) SCC 236, the Apex Court deprecating interference by the High Court on sheer technicalities in the matter of malpractice in the examination, held as under :
"We feel a little distressed that in matter like this the High Court should have interfered with the decision taken by the Board. The contention was that the examination was cancelled on the report of a Naib Tehsildar dated 18.03.1996 who was not authorized by the Board to visit the examination center. It is irrelevant whether the Naib Tehsildar was authorized by the Board to visit the centre or not but what is of importance is the fact that he did visit the centre and found the students copying even before the question papers were distributed. This clearly implies that the students were aware of the questions indicative of the leakage of the question paper. The Naib Tehsildar even complained that the teachers did not object to the students entering the examination hall with books and copying material. That would mean that either they were hand in glove with the students or they were for some reason not able to stop the students from copying. This is also evident from the report of the Superintendent of the Centre. The Naib Tehsildar States that neither the Superintendent of the centre nor the invigilators were prepared to interfere and were not able to explain how the students could enter the hall with books, etc. and copy therefrom with impunity. The Superintendent of the Centre states that he had requested the Naib Tehsildar to stay for three hours but the Naib Tehsildar did not stay. The report of the valuers at p. 81 also goes to show that there was mass copying. The High Court brushed it aside as subsequent material. But it supports the Board's decision and it was improper in a sensitive matter like this to ignore it on such a technical ground. In the face of this material, we do not see any justification in the High Court having interfered with the decision taken by the Board to treat the examination as cancelled. It is unfortunate that the student community resorts to such methods to succeed in examinations and then some of them come forward to contend that innocent students become victims of such misbehaviour of their companions. That cannot be helped. In such a situation the Board is left with no alternative but to cancel the examination it is extremely difficult for the Board to identify the innocent students from those indulging in malpractices. One may feel sorry for the innocent students but one has to appreciate the situation in which the Board was place and the alternatives that were available to it so far as this examination was concerned. It had no alternative but to cancel the result and we think, in the circumstances they were justified in doing so. This should serve as a lesson to the students that such malpractices will not help them succeed in the examination and they may have to go through the drill once again. We also think that those in charge of the examinations should also take action against their Supervisors/ Invigilators etc who either permit such activity or become silent spectators thereto. If they feel insecure because of the strong-arm tactics of those who indulge in malpractices, the remedy is to secure the services of the Uniformed Personnel, if need be, and ensure that students do not indulge in such malpractices."
Where purity and sanctity of public selection/examination is at stake, technicalities shall not prevail and take front seat in all such matters. The scope of judicial review would be only as to whether the decision taken by the authorities is such which a reasonable person of ordinary prudence in the facts and circumstances and material available on record would have taken. In Union of India Vs. O. Chakradhar, 2002 (3) SCC 146, it was held where mischief in conducting selection was so widespread and all pervasive, affecting the result, and, it was difficult to identify the persons unlawfully benefited or wrongfully deprived of selection then in that event whole selection should be cancelled and in that view a decision of cancelling the selection cannot be said to be unreasonable or arbitrary. In para-8 of the judgment, the Court held as under :
" In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is 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 in such cases it will neither be possible nor necessary to issue individual show cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committee also has its relevance."
In Union of India & others Vs. Rajesh P.U. (supra), a similar view was reiterated and para-6 of the judgment though relied by the counsel for the petitioner is reproduced as under :
"6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions- which report itself seems to have been also produced for the perusal of the High Court- there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of the written examination- either by the candidates or by those who actually conducted them. If the Board itself decided to dictate the questions on a loudspeaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of the written examination itself, except noticing only certain infirmities only in the matter of evaluation of answer sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears that the Special Committee has extensively scrutinized and reviewed the situation by re-evaluating the answer sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment there was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all pervasively nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to other, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational."
The common thread running in all the aforesaid legal propositions is clear that examination on the whole can be cancelled only when there is material leading to inference that there are widespread infirmities of all pervasive nature, affecting the result and it was difficult to identify the persons unlawfully benefited or wrongfully deprived of selection, i.e., difficult to separate grain from chaff. Attempt can also be made where possible, whether the complaint is localized one liable to be identified or is large scale and widespread one or the illegality and irregularity is so intermingled that it would be difficult to separate good from bad and vice versa. The Railway Board has considered the matter and found that various discrepancies were noted at the time of document verification, therefore, in its wisdom and in the light of the condition of the advertisement decided to hold second stage examination instead of cancelling the entire selection wherein more than two lacs candidates are said to have appeared at the preliminary examination stage. The decision, ex facie, in our view cannot be said to be perverse or arbitrary.
At this stage, it would be appropriate to consider that judicial review of an administrative decision is not an appeal from the decision but is a review of the manner in which the decision was made, i.e., decision making process. Judicial review is entirely different from an ordinary appeal. Lord Scarman in Nottinghamshire Country Council Vs. Secretary of State for the Environment, 1986 A.C. 240 put a note of caution for exercise of power of judicial review in following words :
"Judicial review is a great weapon in the Hands of the Judges; but the Judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficent power."
The grounds on which an administrative decision can be brought within the purview of judicial review may be classified in the following three categories :
1.Illegality.
2.Irrationality, namely, Wednesbury unreasonableness.
3.Procedural impropriety.
Something is "illegal" when it is contrary to the statute or set principle of law. The "irrational" means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standard that no sensible person who had applied his mind to the question on the given facts and circumstances would come to such conclusion. In other words, it can be said to be another facet of perversity. The Court, while applying the doctrine of "Wednesbury unreasonableness" would not go into the correctness of the decision and would not substitute the decision of the administrative authority. In State of Rajasthan & another Vs. Mohammed Ayub Naz, AIR 2006 SC 856, the Court held that the common thread running in all these decisions is that the Court should not interfere with the Administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the consciousness of the Court in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case, the Court would not go into the correctness of the choice made by the Administrator open to him and the Court should not substitute its decision for that of Administrator. The scope of judicial review is limited to the deficiency in the decision making process and not a decision.
Testing with the principles of unreasonableness in the light of reasons referred to by the Railway Board based on the report of Chairman, RRB, in our view, the decision cannot be said to be so which a reasonable man could not have arisen. It is unfortunate that of late this Court is flooded by the cases involving wide spread malpractice and the decision taken by the authorities to cancel selection challenging such decision. The candidates, who have either got selected or managed to get selected and sometimes even a few bona fide honest candidates who have suffered on account of large scale malpractice of other raise such dispute. The situation has arrived at on account of general deterioration in the society. We are at pain to observe that it is so wide spread that now the people do not feel shame or repentance in taking recourse of such activities and, therefore, in making all out efforts to retain the fruits. Corruption, favoritism and nepotism, unfortunately, has become order of day and is affecting the whole society like cancer and AIDS. Corrupt people have taken place of pride in the society. They are supported by the hypocrites committed in broad day light and as a result, the society is affected. The graph of crime and corruption has reached such a height that unless a consolidated effort by right minded people would not come forward to counter it, it may lead to disorder social and political. We are not unmindful that the Court has a vital role to play in such matters as and when it come to its notice. It is not the case of the petitioners that the decision has been taken by the respondents on account of some mala fide or for some extraneous reasons. None has been impleaded co-nominee to sustain and contest the plea of mala fide. Once a decision has been taken on the basis of material on record, which by itself cannot be said to be flimsy or non est. and the decision has been taken in good faith and bona fide, we do not find that in such a matter, the Court would be justified to interfere."
17. Taking into consideration the aforesaid judgments in the case of Shankarsan Dash, All India SC and ST Association, Shubhas Chandra, Akhilesh V. and Tribhuwan Nath Singh (supra) what clearly comes out is that even a selected candidate has got no indefeasible right for appointment. In the instant case, the petitioner was not even selected rather prior to declaration of the result itself, the selection process was cancelled. It also clearly comes out on record that various irregularities and illegalities had been indicated by a two members inquiry committee against the selection process of X-Ray Technician. Once such illegalities have clearly come out, there appears to be no scope for any legitimate grievance against the said decision. Testing the principles of unreasonableness in the light of the reasons as referred to in the impugned order based on the report of the two members committee, in the view of the Court the decision cannot be said to be so which a reasonable man could not have taken. It is not the case of the petitioner that the decision has been taken by the respondents on account of some malafide or for some extraneous reasons. None has been impleaded as a respondent to sustain and contest the plea of malafide. Once a decision has been taken on the basis of material on record which by itself cannot be said to be flimsy or non-est and the decision has been taken in good faith and bonafide and sufficient reasons also exist with the respondents, this Court would not like to interfere with the impugned order.
18. Taking into consideration the aforesaid discussion, no ground for interference is made out. The writ petition is dismissed Order Date :- 25.7.2019 Pachhere/-
(Abdul Moin, J)