Orissa High Court
State Of Odisha And Others vs Sri Sukanta Kumar Nanda And Others on 29 August, 2017
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C)Nos.1748, 1435,1746,1750,1840 and 1843 of 2017.
In the matter of the applications under Articles 226 and 227 of the
Constitution of India.
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State of Odisha and others (in all the cases) ...... Petitioners
- Versus-
Sri Sukanta Kumar Nanda and others (in W.P.(C) No.1748 of 2017)
Prasanta Kumar Sahoo and another (in W.P.(C) No.1435 of 2017)
Chittaranjan Sa and another (in W.P.(C) No.1746 of 2017)
Sri Subranshu Sekhar Rout and others (in W.P.(C) No.1750 of 2017)
Asish Kumar Patel and another (in W.P.(C) No.1840 of 2017))
Sri Kshetrabasi Naik and others (in W.P.(C) No.1843 of 2017)
...... Opposite Parties
For Petitioners : Mr. M.S.Sahoo, Addl. Government Advocate
For Opp. Parties : M/s. Jaganath Patnaik, Biplab Mohanty,
S.Patnaik, A.Patnaik, B.S.Rayaguru,
S.Mohapatra & T.K. Patnaik.
M/s. S.Das, R.P.Dalai, K.Mohanty, S.Jena,
S.K. Samal, S.P. Nath, S.D.Routray,
S.K. Sahu & R.P. Samal.
M/s. N.R.Rout, P.Rath, J.P.Behera,
Budhadev Routray & J.K. Rath.
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing: 10.08.2017 :: Date of judgment: 29.08.2017
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S.N.Prasad,J. As common questions are involved in all the writ petitions,
they are being heard together and disposed of by this common
judgment.
2. These writ petitions under Article 226 and 227 of the
Constitution of India have been filed by the State of Odisha through its
functionaries whereby and whereunder the order dated 28.9.2016
passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack
in batch of Original Applications being O.A. Nos.986(C), 987(C), 988(C),
998(C), 999(C) and 1000(C) of 2016 whereby and whereunder the
Tribunal has quashed the order dated 4.3.2016 whereby the
appointment made by the Collector, Balangir has been declared to be
null and void.
3. The facts leading to institution of Original Applications
before the Tribunal by the applicants/ opposite parties, who have been
appointed as Revenue Inspectors (R.Is.), Assistant Revenue Inspectors
(A.R.Is.) and Amins in the district of Balangir, in pursuant to an
advertisement published on 17.12.2011 and subsequent corrigendum
regarding enhancement of the vacancy position, but the State
Authorities have found mass irregularities committed in the matter of
fulfilling the posts and as such, an enquiry has been directed to be
conducted by the State Government. In pursuant thereto, the Revenue
Development Commissioner, Northern Division, Sambalpur has directed
its Secretary to conduct an enquiry and submit a report. In the inquiry,
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it has come that the mass irregularities have been committed by the
candidates with the connivance of the Government Authority of
the district of the Balangir and as such, the decision was taken to
institute F.I.R. before the Vigilance Department of the State and in the
light of the mass scale irregularities, the Government has taken a
decision on 4.3.2016 to declare the selection process as null and void
and accordingly, the appointment of the appointees has been cancelled.
4. The applicants/opposite parties, being aggrieved with the
decision of the authorities dated 4.3.2016, have approached to the
Tribunal by filing batch of Original Applications inter alia on the ground
that the decision taken by the authorities in declaring the selection
process as null and void is based upon a report which itself is
inconclusive, since the enquiry report itself reflects that the thorough
enquiry is required and as such, it was not incumbent upon the
authorities to take action in pursuant to the inconclusive enquiry
report.
In the enquiry report, allegation is only against the 15
candidates and as such, declaring the entire selection process as null
and void is absolutely an arbitrary exercise of the power of the State
Authorities, since there is no irregularities having been committed by
the other candidates and it is settled that if there is any scope to
segregate in between tainted and untainted candidates, the effort should
have been made by the authorities in segregating these two categories so
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that for the fault committed by some of the candidates, the genuine
candidates may not suffer.
The further ground has been taken regarding violation of
the principle of the provision as laid down under Article 311(2) of the
Constitution of India, since it has not been followed while issuing the
order dated 4.3.2016.
According to the petitioners, enquiry has been conducted
behind their back and even before issuance of the order dated 4.3.2016,
no opportunity of hearing has been given to them and as such, there is
gross violation of the principle of natural justice.
Learned Senior Counsels appearing for the applicants/
opposite parties have submitted that the Tribunal, after taking note of
all these facts, has allowed the Original Applications by quashing the
order dated 4.3.2016. Hence, there is no illegality in the same.
5. The State of Odisha, through its functionaries, have
approached this Court assailing the order passed by the Tribunal in
batch of the Original Applications inter alia on the ground that it is a
case where there is mass irregularities having been found apart from the
specific irregularities committed by the 15 candidates in connivance
with the authorities right from the very beginning. The submission has
been made that the advertisement was published on 17.12.2011 for
fulfilling different posts of Revenue Inspector, Assistant Revenue
Inspector and Amin numbering to 13, 17 and 24 respectively, and the
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last date of submission of application form provided in the
advertisement was 20.01.2012. The applications have been
submitted, but in the meanwhile, the corrigendum has been issued on
24.12.2011showing the enhanced vacancy position. Thereafter, on 20.12.2012 and 31.12.2012 and then the corrigendum has come on 4.6.2013, but even in spite of decision having been taken by the Collector, Balangir to enhance the vacancy position from the notified vacancies as per the advertisement dated 17.12.2011, but without allowing the other eligible participants to make their applications since the last date as has been fixed vide advertisement dated 17.12.2011, i.e., 20.01.2012 has never been extended, meaning thereby the candidates, who have participated for screening, their candidature in terms of the original advertisement dated 17.12.2011 have only been screened even in spite of the enhancement of the vacancies by virtue of the three corrigendums issued in this regard which itself suggest that right from the date of initiation of the selection process the irregularities have been committed, as such, it is in violation of the provision of Article 14 and 16 of the Constitution of India.
The further ground has been taken that it is a gross case of commission of violation of the settled proposition in fulfilling the post, since even after the selection process having been started pursuant to the advertisement dated 17.12.2011 by asking the candidates to appear in the physical test even thereafter the corrigendum has been issued 6 and the screening has been made from amongst the said candidates, who have participated in terms of the advertisement dated 17.12.2011.
The further ground has been taken that when the matter has come to the notice of the State Authorities at its headquarter, direction has been given by the competent authority of the State Government to the Revenue Development Commissioner, Northern Division, Sambalpur to conduct an enquiry and in terms thereof, the enquiry has been conducted by the Secretary, in which, the gross irregularities have been found in course of enquiry. Based upon the said enquiry, the Government has taken decision to cancel the entire selection process and as such, the order dated 4.3.2016 has been issued. He submits that this is such nature of case where there cannot be any segregation in between tainted and untainted, since from the day one the irregularities have been committed by issuing corrigendums enhancing the vacancies and not allowing the others to participate by virtue of the corrigendum issued, even after expiry of the last date for submission of the application in terms of the advertisement dated 17.12.2011. The vacancies have been enhanced and the candidature of the candidates, who have participated in terms of the advertisement dated 17.12.2011, has only been taken into consideration and as such, in such a situation, there cannot be any segregation for the reason that it is impossible to scrutinize that who are the candidates, who have been 7 appointed in terms of the vacancy position notified in the advertisement dated 17.12.2011. So far the segregation in between tainted and untainted is concerned, it is also difficult, since there is large scale irregularities as has been pointed out in the enquiry report and in pursuant thereto, the vigilance case is going on. In the light of the submission, the order passed by the Tribunal has been assailed by the State Authorities.
6. Learned counsels appearing for the applicants/opposite parties in rebuttal, has reiterated the ground which they have taken before the Tribunal, as has been stated hereinabove and on the strength of these arguments, the submission has been made that the order passed by the Tribunal needs no interference by this Court.
7. We have heard learned counsel for the parties and perused the documents available on record.
8. The issue involved in this case is with respect to fill up of the vacancies of the post of Revenue Inspectors, Assistant Revenue Inspectors and Amins. These posts are to be filled up in pursuance of the Orissa District Revenue Service (Method of Recruitment and Conditions of Service) Rules, 1983 (in short 'the Rules, 1983'). The rule provides the composition of Cadres under the provision of Rule-3 which speaks as follows:-
"3. Cadres in the District Revenue Service - The Service of each District shall comprise the following cadres, namely :8
(a) the cadre of Revenue Supervisors;
(b) the cadre of Revenue Inspectors;
(c) the cadre of Amins; and
(d) the cadre of [Assistant Revenue Inspector];
Provided that Government shall be competent to order inclusion in or exclusion from these cadres any category of posts as considered necessary."
Rule-4 of the Rules, 1983 provides for methods of recruitment of the service wherein under the provision of sub-rule(2) recruitment to the posts in the cadre of Revenue Inspectors has been provided to be followed :
"(a) by direct recruitment to the extent of 10 per cent of the vacancies arising in a year in accordance with Rules 6 and 7; and
(b) by absorption of job contract employees of the Settlement/Consolidation Organisation to the extent of 40% of vacancies arising in a year on the basis of seniority subject to elimination of unfit; and
(c) by promotion from the cadres of Amins and 1[Assistant Revenue Inspector] to the extent of 50% of the vacancies arising in a year in accordance with Rule 11 :
Provided that if adequate number of candidates suitable for job contract employees of the Settlement/Consolidation Organization and for promotion from the cadres of Amins and 1[Assistant Revenue Inspector] are not available in a particular year, the vacancies earmarked for absorption and promotion, as the case may be, shall be filled up by direct recruitment."
It is evident that method of recruitment to the post of Revenue Inspectors, Assistant Revenue Inspectors and Amins is provided in the provision of Rule-4(2) and only 10% of the vacancies is 9 to be filled up by way of direct recruitment and rest of the 40% and 50% by absorption of job contract employees and by way of promotion from the cadres of Amins and Assistant Revenue Inspectors to the extent of 40% and 50% respectively of the vacancies arising in the year in accordance with Rule-11 of the Rules, 1983 subject to the condition that if adequate number of candidates suitable for job contract employees of the Settlement/Consolidation Organization and for promotion from the cadres of Amins and Assistant Revenue Inspectors are not available in a particular year, the vacancies earmarked for absorption and promotion, as the case may be, shall be filled up by direct recruitment. Likewise, the provision under Rule-4(3) is meant for the cadres of Amins and Assistant Revenue Inspectors in the same manner of percentage of the vacancies.
9. The fact in the instant case is that an advertisement has been published on 17.12.2011 as contained in Advertisement No.2687/Estt. issued under the signature of Chairman, Board of Examination and Collector, Balangir inviting applications in prescribed form from the residents of the Balangir District for the competitive examination for recruitment of the post of Revenue Inspector, Assistant Revenue Inspector and Amin. The vacancies have been notified post- wise, i.e., Revenue Inspector, Assistant Revenue Inspector and Amin. Total vacancies reflected in the advertisement as 13, 17 and 24 10 respectively and the said vacancies have been shown to be approximate, which may undergo changes in the exigencies of circumstances.
10. It is evident from the advertisement that the applications complete in all respect must reach the undersigned through Registered/Speed Post on or before 20.01.2012. The applications have been submitted by other candidates, the State Authorities have come up with a corrigendum on 24.12.2011 as contained in letter No.2732/Estt. showing the enhancement of vacancies of the post of Revenue Inspector, Assistant Revenue Inspector and Amin, coming to the total inclusive of the vacancies notified in the advertisement dated 17.12.2011 as 15, 20 and 28 respectively. The other corrigendum has been issued on 24.12.2011 showing the enhancement of vacancies and then coming the corrigendum dated 31.12.2012, but the copy of the corrigendum dated 31.12.2012 has not been brought on record either by the State functionaries or by the applicants/opposite parties. However, the reference which has been made in the corrigendum dated 4.6.2013, by which, the total vacancies of the post of Revenue Inspector, Assistant Inspector and Amin has been enhanced inclusive of the vacancies notified in the advertisement dated 17.12.2011 and other two corrigendums, i.e., the corrigendum dated 24.12.2011 and 31.12.2012 as 67, 73 and 29 respectively.
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We, after going through these three corrigendums, have found that although the vacancies have been enhanced, but no date for submission of the applications have been extended asking the fresh candidates to submit their application form.
11. It is also evident from the record that in pursuant to the advertisement dated 17.12.2011, the selection process has been started by asking the candidates to appear in the physical test which was held on 11.12.2012 and 13.12.2012. It is also evident from the record that the written test was conducted on 9.6.2013, computer test was conducted on 12.6.2013 and the selection list was prepared on 22.6.2013, then the selected candidates have joined the respective posts in the period from 26.6.2013 to 2.7.2013.
It is very surprising that the selection committee has concluded the selection process by issuing different corrigendums on different dates enhancing the vacancy post but without asking for fresh application from the fresh candidates.
The explanation has been given by the learned counsel appearing for the applicants/opposite parties by referring to the conditions mentioned in the advertisement dated 17.12.2011 that the vacancies notified therein was approximate which may undergo changes in the exigencies of circumstances and after issuance of advertisement, the Government has sanctioned more posts as would be evident from the communication dated 6.3.2013 showing the enhanced vacancies 12 from the district of Bolangir of the different posts. Taking into consideration this aspect of the matter, the Collector, Bolangir has issued the corrigendum. Hence there is no illegality.
12. We are not in dispute that the vacancies notified in the advertisement may undergo changes depending upon the exigencies of circumstances, but here the fact of the case is quite different, since the selection process once begins by asking the candidates to participate in the physical examination test before issuance of the first corrigendum, i.e., 24.12.2011 and as such, the action of the selection committee cannot be approved that even on the ground of enhancement of the post it will not be included in the selection process which has already been commenced by virtue of the issuance of the advertisement.
It cannot also be endorsed in the light of provision of Rule-4 of the Rules, 1983 which speaks regarding fulfilling the post in a particular year and when the vacancies have been notified on 17.12.2011 and in no stretch of imagination the vacancies which have been notified by virtue of the post sanctioned as has been communicated through letter dated 6.3.2013 regarding enhancement of the post by the Government in Revenue & Disaster Department dated 20.12.2012, which is beyond the period of one year from the date of advertisement dated 17.12.2011 and as such, the vacancy which has been cropped up by virtue of enhancement of post cannot be filled up on 13 the basis of the advertisement already notified on 17.12.2011 otherwise the same will be contrary to the provision of Rule-4 of the Rules, 1983.
The provision of Rule-4 of the Rules, 1983 specifically provides that by fixing quota of recruitment through direct recruitment or by way of absorption from amongst the job contract employees or by way of promotion from the cadre of Amins and Assistant Revenue Inspectors.
13. We, after going through the entire record, have not found anything that the Collector, Balangir has taken any exercise in view of the proviso to sub-rule(2) or (3) to Rule-4 of the Rules, 1983 wherein it has been provided to fill up the post through direct recruitment, if the adequate number of candidates from amongst the job contract or from the Amins and the Assistant Revenue Inspectors to fill up the post of Revenue Inspectors by way of promotion and likewise the post of Amins and Assistant Revenue Inspectors to be filled up by way of direct recruitment to the extent of 10%, by way of absorption from amongst the job contract employees to the extent of 40% and by way of promotion from the Class-IV employees of the Collectorate and Subordinate Offices under the administrative control of the Collector to the extent of 50% of the vacancies arising in a year.
14. We have gone through the joint enquiry report conducted by the Secretary and Additional Secretary to the Revenue Divisional Commissioner, Northern Division, Sambalpur dated 17.02.2014 and 14 from its perusal, it is evident that the joint enquiry have been constituted by the order of Additional Chief Secretary to Government, Revenue & Disaster Management Department, Odisha, Bhubaneswar vide his letter dated 20.3.2014 and in terms thereof, the Revenue Divisional Commissioner, Northern Division, Sambalpur by requesting to make an enquiry into the allegation relating to the recruitment process adopted from the post of Revenue Inspectors, Assistant Revenue Inspectors and Amins in Balangir District for the year 2012, for which examination was conducted during the year 2013 and to submit a report in the matter to the Government.
Accordingly, a report on the above allegations was sent to the Government vide letter dated 17.12.2013 basing on the information submitted by the Collector, Balangir vide letter dated 19.9.2013. From perusal of the joint enquiry report, it is evident that the irregularities, from the day the advertisement was issued, has been taken note by taking into consideration the issuance of various corrigendum without changing the last date of submission of application form.
15. The selection process has been initiated contrary to the Calendar Programme for conducting recruitment for the District Cadre posts, the recruitment examination has been conducted in divulgence of the communicated Calendar Programme fixed by the Government as pre-arranged and as also the Recruitment Committee headed by the Collector, Balangir started recruitment process well in advance and 15 completed the same before the date of advertisement fixed by the Government, the Chairman-cum-Collector, Recruitment Committee was transferred and relieved from his post on 18.07.2013 and as such, the committee has came to conclusion that the selection committee was in hurry to complete the recruitment examination.
According to the report, the last date for receipt of application should have been extended after issuance of the corrigendum enhancing the vacancy position, but that has not been done. The Question-cum-Answer Booklets of the candidates have been examined and on its verification, it has been found as being referred herein below:-
"(i) Regarding preparation of Question Papers, the instructions issued by Govt. in R&DM Deptt. in their Letter No.25281R&DM, dt.01.07.2013 was not followed. The Recruitment Committee has prepared only one set question booklet instead of four sets. Further, the form of OMR (Optical mark Reader) with Carbon Copy was also not affixed along with the Answer Sheet.
(ii) It is seen from the Question-cum-Answer booklet that, no Coding has been made and the upper portion of the first-page, which was to be cut before the valuation has not been done.
(iii) It is seen from the Question-cum-Answer booklet of Sri Subash Chandra Nayak, Narottam Pradhan, Rajaram Putel, Rajesh Kumar Bagh and Sanjaya Mallick that, they have secured 100 Marks out of 100 Marks in Arithmetic and the Wrong Answer boxes have been scratched and tick mark (√) have been given in correct answer boxes. In case of Sri Jasobanta Singh, he has secured 100 Marks in Arithmetic, without doing the Rough work at all by using the rough passage provided therein.
Further, in case of Sri Siddhartha Kalsai, he has 16 secured 02 (two) marks in Arithmetic at first instant and then it appeared that all the cross-
mark were given in the correct answer boxes and thus it was made 93 (ninety-three) marks out of 100 Marks. In case of Sri Hrushikesh Sahu, he has secured 99 Marks in Arithmetic out of 100 Marks and the wrong answer boxes were scratched and tick mark (√) were given in correct answer boxes.
(iv) The Computer Practical Test was held in the Computer Cell of Rajendra (Auto) College, Bolangir and Govt. Women's College, Bolangir on 12th & 13th June under the supervision of Sri C.V.K. Maruti Rao, D.I.O., NIC, Bolangir for 50 Marks. It is seen from the answer sheet of the candidates that, all have secured within 20 to 28 Marks, but the answer sheet is not available in the Office.
(v) It is a fact that, Sri Jogeswar Bishi and Sri Sachidananda Deheree both belong to SEBC category, but their result have been published against the Scheduled Caste (SC) Category.
After detecting the defects, necessary correction was made and corrigendum was issued immediately. While Jogeswar Bishi has, accordingly, been appointed vide District office order No.1259/Estt. Dtd. 27.6.2013 under the SEBC category, Sri Sachidananda Deheree has secured marks below the cutoff marks for SEBC candidates against the R.I. post. Hence, the appointment of Sri Sachidananda Deheree was cancelled later on by Collector, Balangir vide order No.1261/Estt. Dtd.27.6.2013. Till date the said two SC posts have not yet been filed up and thus, the Committee has taken away the legitimate rights of two SC candidates from appointment in government job.
(vi) It is seen from the evaluation sheet of physical test for the post of ARI, Sri Ajit Kumar Swain, S/o.
Mohan Swain of SEBC Category, Sl.No.374, Regd. No.495 was absent on the day of physical text examination held on 13.12.2012. But as per the result sheet, he has been selected as Amin at Sl.No.40 and posted to Bangomunda Tahasil as per the Office Order No.1225/Esst., dt. 22.6.2013. 17
(vii) Sri Saroj Kumar Meher has been appointed as R.I. and posted to Loisingha Tahasil vide Balangir District Office No.1222/Estt. Dtd.
22.06.2013 and has joined there. Sri Ghanashyam Meher, Sri Sangram Keshari Meher and Sri Debraj Meher of S.T. Category, have been as appointed as ARI vide Order No.1225/Estt., dt.22.06.2013 and posted to Bangomunda, Muribahal and Patanagarh Tahasil respectively.
Sri Ghanashyam Meher has joined in Bangomunda Tahasil. The joining of Sri Debraj Meher has not yet been accepted by the Tahasildar, Patnagarh as he has not submitted the recent caste certificate. Sri Sangram Keshari Meher has not joined as ARI in Muribahal Tahsil. The genuineness of the caste certificates (ST) of above four candidates is still in doubt and needs further investigation.
(viii) After publication of the result of the recruitment for the post of RI/ARI/Amin on 22.06.2013, the answer sheets of the examination were kept in the District Treasury Strong Room on 13.08.2013 as per Letter No.1596/Estt., dt. 12.08.2013 of the Collector, Bolangir. Prior to this, the Question- cum-Answer Booklets were kept under the custody of the Chairman-cum-Collector of the Recruitment Committee himself in the Emergency Cell of Collector's Residential Office, Balangir."
16. In view of such circumstances, the committee has submitted a report with respect to irregularities/manipulation of documents and as such, it was opined that an Expert Investigating Agency of the State may be entrusted for further investigation in the matter.
It is further evident that the Special Secretary to Government, General Administration (Vigilance) Department, Cuttack has requested to the Principal Secretary to Government, Revenue & 18 Disaster Management Department, Odisha, Bhubaneswar to take appropriate action since the vigilance case has already been instituted for investigating the matter, but it will take time and as such, the immediate action is required to be taken for cancelling of the selection process. The Superintendent of Police, Vigilance, Sambalpur Division, Sambalpur has also submitted a report before the I.G. of Police, Vigilance, Odisha, Cuttack regarding irregularities. It is evident from the joint enquiry report and the report submitted by the Superintendent of Police, Vigilance, Sambalpur Division, Sambalpur that the malpractices have been committed in the matter of selection of Revenue Inspectors, Assistant Revenue Inspectors and Amins in the district of Bolangir and in that pretext, the Government has come out with the order dated 4.3.2016 declaring the selection process as null and void.
17. Learned Senior Counsels for the applicants/opposite parties have vehemently argued regarding the action of the Government in issuing the order dated 4.3.2016 declaring the selection as null and void by submitting that if there is any irregularities, the State Authorities should not have quashed the entire selection process to penalize the genuine candidates, who have been appointed and resume their duties and when they are discharging their duties, all of a sudden they have been stopped from discharging their duties. They submit that even assuming there are malpractices, the Government should have been 19 taken endeavour on their part to segregate in between tainted and untainted cases so that for the misdeed committed by some of the candidates, the genuine candidates may not suffer.
The appointees have already started discharging their duties and as such, declaring the selection process null and void without providing an opportunity of hearing would amount to violation of principle of natural justice and that is contrary to the provision laid down under Article 311(2) of the Constitution of India.
18. So far as the first argument advanced by the learned counsels for the applicants/opposite parties is concerned, the Government should have taken endeavour to segregate in between tainted and untainted candidates and to support their arguments, the judgments have been rendered by Hon'ble the Apex Court in the cases of Union of India and others v. O. Chakradhar, reported in (2002) 3 SCC 146; Mahipal Singh Tomar v. State of Uttar Pradesh and others, reported in (2013) 16 SCC 771; Chairman, All India Railway Recruitment Board and another v. K. Shyam Kumar and others, reported in (2010) 6 SCC 614; Inderpreet Singh Kahlon and others v. State of Punjab and others, reported in (2006) 11 SCC 356 and Joginder Pal and others v. State of Punjab and others, reported in (2014) 6 SCC 644.
There is no dispute in the settled proposition of law as has been laid down in these judgments that for the fault of some of the 20 candidates, the genuine candidates should not be made to suffer and to save the genuine candidates, the State Government should have made an endeavour to segregate in between tainted and untainted candidates, if it is practically possible.
19. We have examined the issue in the light of the factual aspect and the discussion made hereinabove with respect to the facts as to whether there can be any segregation in between tainted and untainted in the instant case.
It is settled that any recruitment process is to be followed and concluded in the light of the recruitment rule.
It is settled proposition of law that every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where the statute confers a wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision-making process remains bad. Reference in this regard has been made in the case of State of Orissa and Another v. Mamata Mohanty, reported in (2011) 3 SCC 436 at para-59. 21
Recruitment rule which governs to fill up the recruitment of the post is in question in the Rules, 1983, which prescribes provision under Rule-4 to make selection as quoted hereinabove.
20. In the light of settled position of law as indicated above and in the facts and circumstances of the instant case, there cannot be any segregation in between tainted and untainted candidates for at least two reasons:
(i) the literal meaning of taint is 'corrupt' and 'dirty'.
The selection in question ought to have been made in pursuant to the provision provided under Rule-4 of the Rules, 1983, but we after going through the record, are of the view that the authorities have not taken any endeavour to follow the statutory rule rather, it has been given go by since the sub-rule(2) or (3) to Rule-4 of the Rules, 1983 provides quota of the post which is to be filled up from amongst the job contract employees to the extent of 40% and by way of promotion from the cadre of Amins and Assistant Revenue Inspectors to the extent of 50% in the cadre of Revenue Inspectors, but by making direct recruitment of the entire available vacancies, the Collector, Balangir has filled up some the same by way of direct recruitment instead of fulfilling the 10% of the entire vacancies in terms of the provision 22 of rule. Likewise, so far as the post of Amins and Revenue Inspectors are concerned, 40% of the total vacancy is to be filled up from amongst the job contract employees and to the extent 50% from the amongst the Class-IV employees working in the Collectorate and Subordinate Offices and only 10% is to be filled up by way of direct recruitment. But instead of fulfilling 10% of vacancies of the post, the entire vacancy has been filled up by way of direct recruitment. However, the provision has been made under proviso to Rule-4 of the Rules, 1983 that in case of non-availability of employee under the job contract quota or the candidates, who are to be considered for the highest post by way of promotion, are not available, the post can be filled up through direct recruitment, but we have found nothing on record that the Collector, Bolangir or the selection committee has taken any endeavour before fulfilling the entire post by way of direct recruitment and thereby snatched away the quota of 40% and 50% respectively for the post in question depriving those categories of the employees, who are intending to be considered for appointment to the higher post under the provision of rule.
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We have examined the communication dated 6.3.2013 and have found that some relaxation is there, but that is with respect to conducting the examination not by the Subordinate Staff Selection Commission rather, by relaxing it, the district administration has been allowed to complete the recruitment till 31.3.2014.
As such, it is evident from the corrigendum issued from time to time that no endeavour has been made by the Collector, Balangir in terms of the proviso to sub- rule(2) and(3) to Rule-4 of the Rules, 1983.
It is settled that any appointment is to be made in pursuant to the recruitment rule, but admittedly, the recruitment rule in vogue has not been followed by the authorities, who were involved in the matter of fulfilling the post. There is no dispute about the fact that if the vacancies have been filled up by flouting the recruitment rule, the entire recruitment process will be said to be invalid and it is settled that on the basis of the invalid selection process, no person can claim their appointment to the post.
(ii) The second reason is that the advertisement was issued on 17.12.2011 notifying certain number of 24 vacancies along with last date to submit the application form, i.e., 20.01.2012, but by way of three corrigendums, i.e., 24.12.2011, 31.12.2012 and 4.6.2013, the vacancy position have been enhanced without enhancing the date of submission of the application form and as such, the fresh candidates have been deprived from participating the selection process. Hence, the same will be said to be in the teeth of Article 14 and 16 of Constitution of India.
In that view of the matter, there cannot be segregation in between tainted and untainted candidates as because it is very difficult rather, quite impossible to search out the candidature of such candidates, who have been appointed in pursuant to the vacancies notified in the original advertisement dated 17.12.2011.
These two reasons coupled with the other reasons, which has been reflected in the enquiry report regarding mass scale malpractices as also the irregularities having been committed in the matter of answer sheets, answering the question by making manipulation and keeping the answer sheets in the residential office of the Collector, Balangir instead of 25 keeping it in the strong room of the Treasury, are the sufficient reasons for not making the segregation in between tainted and untainted one.
Hence, according to our considered view, the selection process in question is tainted from the date when it has started, since is contrary to statute and depriving the fresh candidates to participate in the selection process. Accordingly, the process of the State Authorities will be said to be unfair, non-transparent, arbitrary and it attracts procedural unfairness and when there is procedural unfairness right from its inception, there is no question of making segregation in between tainted and untainted rather, it will be said to be tainted from its inception.
21. The second argument advanced by the learned Senior Counsels appearing for the applicants/opposite parties is that the provision of under Article 311(2) of the Constitution of India vis-à-vis the principle of natural justice has not been followed before passing the order dated 4.3.2016. In support of their arguments, the reliance has been placed on the judgment in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC 405.
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The judgment rendered in the case of Km. Neelima Misra v. Dr. Harinder Kaur Paintal and others, reported in AIR 1990 SC 1402, judgment rendered in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, reported in AIR 1991 SC
101. It is not in dispute that administrative action must follow the principle of natural justice and if the post is civil in nature, the provision laid down under Article 311(2) of the Constitution of India has to be followed, but simultaneously it is also to be seen that it may not lead to futile exercise and empty formality, even if after remitting the matter there is no likelihood of change in the decisions then merely for the sake of following the principle of natural justice it would not be appropriate in the interest of justice to remand the matter before the authority to pass a fresh order.
Reference in this regard may be made to the judgment rendered by Hon'ble the Apex Court in the case of Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015)8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below:
"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are 27 grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason- perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision- maker."
In the case of Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. & others, reported in (2004) 4 SCC 281 wherein Hon'ble the Apex Court has held at paragraph-64 which is being quoted herein below:
"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."
22. In the light of the propositions, we have examined the arguments.
It is not in dispute that the irregularities have been committed. It is also not in dispute that the procedure laid down under 28 Rule-4 of the Rules, 1983 has not been followed, a vigilance case is pending, joint enquiry report has been submitted and as such, even if the matter would be remitted for the want of following the principle of natural justice, the decision taken on 4.6.2013 cannot be said to be changed in the light of the fact that the provision of Rule-4 of the Rules, 1983 has not been followed. The issuance of corrigendum without extending the date of submission of application depriving the fresh candidates to participate in the process as per advertisement dated 17.12.2011 and as such, we are of the considered view that merely on the ground of following the principle of natural justice or Article 311(2) of the Constitution of India since no change would come in the decision in the light of the factual aspects involved herein in this case as discussed hereinabove. Hence, we are not in agreement with the arguments advanced in this regard on behalf of the applicants/opposite parties.
23. We have gone through the order passed by the Tribunal and after going through it, the Tribunal has taken note of the fact that the exercise have been made to segregate in between tainted and untainted. Since it has not been done, the order dated 4.3.2016 has been quashed. But as per the discussion made by us hereinabove, we are of the considered view that the Tribunal has not appreciated the issue in the light of non-observance of the provision of Rule-4 of the Rules, 1983 and the Articles 14 and 16 of the Constitution of India by not allowing the 29 fresh candidates to participate in the selection process and as such, the order passed by the Tribunal is not sustainable in the eye of law. The Tribunal has taken note of various judgments, but it is settled that the judgment cannot have its universal application rather, the judgment has to be seen on the basis of the facts and circumstances of each and every case.
24. The finding of the Tribunal is that since the investigation is going on in the criminal case and the enquiry conducted by the State Authorities is inclusive, hence the selection process cannot be said to be improper. We are not agreement with the said finding for the reason that the selection process, if initiated for fulfilling in the public office, is supposed to be filled up by adopting all fairness and transparency and to be done in accordance with the statutory rule. The authorities, in course of conducting an enquiry, has found that the selection process suffers from by means of unfairness and non-transparency as per the detailed discussion made hereinabove and as such, the matter has also been reported before the Vigilance Wing of the State to institute a criminal case to investigate the criminality part regarding involvement of one of the public servant in the matter, in which, the investigation is going on in the present case. It is settled that the consequence of criminal case is all together different to that of the selection process.
25. We have given our finding in the previous paragraphs that the selection process cannot be said to be in accordance with the statute 30 and suffers from unfairness and non-transparency and mainly on this ground, this Court has approved the action of the authorities whereby and whereunder the order for selection process has said to be null and void and as such, waiting for the investigation of the criminal case will not be proper where there is unfairness having been adopted right from the day one for fulfilling the public post. The criminal case is its own consequence while the authoriteis are well competent to deal with such type of situation when there is large scale unfairness that to the public office has been filled up without following the statutory provision. In that view of the matter, the said finding is not correct.
26. As we have already discussed hereinabove that it is not possible in the facts and circumstances of the instant case to segregate in between tainted and untainted candidates, hence we thought it proper to set aside the order passed by the Tribunal and accordingly, the same is set aside.
In the result, the writ petitions stand allowed.
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S.N.Prasad,J.
S.Panda,J. I agree.
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S.Panda,J.
Orissa High Court, Cuttack,
Dated the 29th August, 2017/D.Aech