Allahabad High Court
Bhanu Pratap Verma & Another vs State Of U.P. & Others on 24 January, 2019
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED ON 21.12.2918 DELIVERED ON 24.01.2019 1. Case :- SERVICE SINGLE No. - 331 of 1996 Petitioner :- Bhanu Pratap Verma & Another Respondent :- State Of U.P. & Others Counsel for Petitioner :- R.C.Singh,Amit Ranjan Mishra,Isha Mishra,Pushpila Bisht,Varun Vishal Pandey Counsel for Respondent :- C.S.C.,I.B. Singh AND 2. Case :- SERVICE SINGLE No. - 467 of 1996 Petitioner :- Rakesh Kumar Tewari Respondent :- State Of U.P. & Others Counsel for Petitioner :- A.K.Bhatnagar,Amit Ranjan Mishra,Ashwani Kr. Singh Rathore Counsel for Respondent :- C.S.C. AND 3. Case :- SERVICE SINGLE No. - 155 of 1996 Petitioner :- Bhaskar Pandey Respondent :- State Of U.P. & Others Counsel for Petitioner :- R.C.Bajpai,Ashwani Kr. Singh Rathore,S K Mehrotra Counsel for Respondent :- C.S.C.,Anand Shanker Asthana,I B Singh AND 4. Case :- SERVICE SINGLE No. - 844 of 1996 Petitioner :- Brijendra Pratap Singh & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- S.K. Mehrotra,Amit Ranjan Mishra,Ashwani Kumar Singh Ratho,D.K.Pandey,H G S Parihar,Isha Mishra,Karunesh Singh Pawar,P.K.Jaiswal,S.M.Waseem,U.N.Mishra Counsel for Respondent :- C.S.C. AND 5. Case :- SERVICE SINGLE No. - 5602 of 1995 Petitioner :- Rajaram Kushwaha & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- S.K.Mehrotra,Amit Ranjan Mishra,Ashwani Kumar Singh Ratho,Karunesh Singh Pawar,Pushpila Bist Counsel for Respondent :- C.S.C.,I.B.Singh ***** Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Amit Ranjan Mishra and Sri Anand Shanker Asthana, learned counsel for the petitioners and Sri Vivek Shukla, learned Additional Chief Standing Counsel for the State-respondents.
2. In the batch of these writ petitions, since the issue in question is based on identical facts and the question of law is also the same, therefore, all the aforesaid writ petitions are being decided by this common judgment.
3. The question to be considered in the batch of these writ petitions is as to whether the appointment, which has been made pursuant to the advertisement, thereafter interview held, posting letters issued and the incumbents submitted their respective joining, can be cancelled without affording an opportunity of hearing on the pretext that while making the aforesaid selections, the rules were not followed and anomalies took place in making the selection.
4. The facts of the writ petitions are similar/ identical but the facts of leading writ petition i.e. Writ Petition No.331 (S/S) of 1996; Bhanu Pratap Verma & another vs. State of U.P. & others are being dealt with, however, this order shall be applicable in all the aforesaid writ petitions.
5. By means of this writ petition, the petitioners have assailed the office memo dated 27.12.1995 passed by the Secretary, Department of Animal Husbandry, Government of U.P., Civil Secretariat, Lucknow cancelling the appointment so made by the Director, Animal Husbandry Department, Faizabad Region, Faizabad on 26.11.1995 on the pretext that the aforesaid appointment on Class-IV posts have not been made by following the rules and the said appointments were allegedly made fraudulently. The petitioners have also assailed the consequential order dated 29.12.1995 passed by the Chief Veterinary Officer, Sultanpur cancelling the appointment of the petitioners which was made on 26.11.1995 on vacant Class-IV posts.
6. The brief facts, which are necessary to adjudicate the issue in question, are that the Deputy Director, Department of Veterinary, Faizabad Region, Faizabad issued an advertisement No.5607/Estt. dated 15.11.1995 for filling up 43 posts of Peon (Class-IV post) in the pay-scale of Rs.750-940. The aforesaid advertisement categorically provides that the date of interview would be 26.11.1995 at the office of the Deputy Director.
7. Since all the petitioners were eligible according to the advertisement in question, therefore, they filled up the form and appeared before the Interview Board on 26.11.1995. Result of the aforesaid selection was declared on 28.11.1995 and the appointment letters issued accordingly. Thereafter, the posting letters issued on 02.12.1995 and the petitioners submitted their respective joining on 02.12.1995 and started functioning at the place of their posting.
8. All of sudden, the Chief Veterinary Officer, Sultanpur issued termination letter dated 29.12.1995 referring the letter dated 28.12.1995 issued by the Deputy Director Veterinary, Faizabad Region, Faizabad and the Government Order dated 27.12.1995. In the aforesaid termination order dated 29.12.1995 admittedly no reason was assigned. However, the persons came to know after substantial lapse of time about the office memo dated 27.12.1995 issued by the Secretary, Department of Veterinary, Government of U.P. saying that the selection dated 26.11.1995 was being cancelled for the reasons that the rules were not followed and the forgery was committed while making the aforesaid selection. The writ petitioners challenged the aforesaid office memo dated 27.12.1995 by way of amendment.
9. The submission of learned counsel for the petitioners is that in exercise of powers conferred by the proviso of Article 22 & 309 of the Constitution of India and in supersession of all existing rules and orders on the subject, the Governor had made Group 'D' Employees Service Rules, 1985 (here-in-after referred to as the "Rules, 1985"). Rule 2 of the Service Rules deals with the application of the rules and provides that the rules shall apply to all Group 'D' posts referred to in Rule 6 in all the subordinate officers as defined in Clause (h) of Rule 4. It has further been submitted that Rule 6 of the Rules,1985 provides the source of recruitment to the various categories of Group 'D' posts. According to Rule 6 (a) of the Rules, 1985 the source of recruitment for the post of Peon and other non-technical post is 'Direct Recruitment'. Rule 4 (h) of the Rules, 1985 defines subordinate offices as under:-
"Subordinate Offices' shall refer to all the offices under the control of the Government, excluding the Secretariat, Offices of State Legislature, Lok Ayukt, Public Service Commission, High Court, Subordinate Courts under the control and superintendence of the High Court, Advocate General and the establishments under the control of the Advocate General."
10. In view of the above, the learned counsel for the petitioners has submitted that Class-IV posts thus vacant under the Deputy Director (opposite party No.3), shall come within the purview of Rules, 1985, as the office of the opposite party No.3 comes within the meaning of subordinate offices in terms of Rule 4 (h) of Rules, 1985. It has further been submitted that Rules 8, 9 & 10 of the Rules, 1985 deals with eligibility of the person for appointment on Group 'D' post viz-a-viz the nationality, age and academic qualifications. The petitioners fulfilled the requisite eligibility criteria for appointment of Group 'D' post under the opposite party No.3. Rule 19 of the Rules, 1985 provides the procedure for selection. According to Rule 19 of the Rules, 1985, the Appointing Authority is required to determine the number of vacancies to be filled during the course of the year, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories. Rule 19 further provides that the vacancies shall be notified to the Employment Exchange and the Appointing Authority may also invite applications directly from the persons who have their names registered in the Employment Exchange and for this purpose the Appointing Authority is required to issue an advertisement in a local daily newspaper besides pasting the notice for the same on the notice Board. All such applications are required to be placed before the Selection Committee, the constitution of which is provided in Rule 16 of the Rules, 1985. The advertisement thus issued by the opposite party No.3 on 15.11.1995, as published in local daily newspaper on 16.11.1995, was in conformity with the provisions contained in Rule 19 of the Rules, 1985.
11. In view of the aforesaid submissions, learned counsel for the petitioners has submitted that the petitioners submitted an application to the opposite party No.3 for appointment on Group 'D' (Class-IV posts) in response to the advertisement dated 16.11.1995 and appeared before the Selection Committee on 26.11.1995. The Selection Committee was comprised of opposite party No.3, officers nominated by the District Magistrate, Faizabad and the Chief Veterinary Officer of the District. The petitioners were recommended for appointment on Group 'D' posts.
12. As noted above, on 28.11.1995 the result of the selection in question was declared, on 02.12.1995 posting letters/ orders were issued and on the same date i.e. 02.12.1995 the petitioners submitted their respective joining. As also noted earlier that on 29.12.1995 the petitioners received termination letter wherein no reasons were indicated for terminating their services, only reference of letter dated 29.12.1995 of the Deputy Director and 27.12.1995 of the State Government was given.
13. The submission of learned counsel for the petitioners is that since the complete procedure , as per rules, was followed while making selection in question and the petitioners had submitted their respective joining, therefore, such appointment may not be cancelled without affording an opportunity of hearing. Since no such opportunity has been afforded to the petitioners, therefore, the aforesaid impugned cancellation order/ letter is void-abnitio and nonest in the eyes of law being violative of principles of natural justice, therefore, the same may be quashed and the petitioners may be permitted to discharge their respective duties pursuant to their selection on the post in question.
14. Per contra, Sri Vivek Shukla, learned Additional Chief Standing Counsel has submitted that while making selection in question the Selection Committee was not constituted strictly as per rule 15 of the relevant rules and while awarding marks to the candidates overwriting / cutting was made, which indicates that forgery was committed while making selection in question. Therefore, Sri Shukla has submitted with vehemence that if any selection in question has been made fraudulently and the relevant rules were not followed, there is no need to afford an opportunity of hearing to the selected candidates while cancelling the selection in question.
15. Replying to the aforesaid submission of learned Additional Chief Standing Counsel, the learned counsel for the petitioners has submitted that the Selection Committee was duly constituted as per Rule 15, however, besides the requisite members of Selection Committee, the Chief Veterinary Officers were also made members in the said Committee and, therefore, the inclusion of the Chief Veterinary Officers does not vitiate the quorum of the Selection Committee inasmuch as inclusion of the Chief Veterinary Officers in the Selection Committee was not caused any prejudice to anybody. Learned counsel for the petitioners further submitted that the said Committee may be said to be irregular but that Selection Committee may be said to be illegal and, therefore, on the basis of alleged violation of Rule 15 regarding the quorum of Selection Committee, the selection cannot be cancelled.
16. On being confronted on the aforesaid submission of learned counsel for the petitioners, the learned Additional Chief Standing Counsel has submitted that there was no need to induct the Chief Veterinary Officer in the Selection Committee when the Selection Committee has been described.
17. I have considered the rival submissions of learned counsel for the respective parties and perused the material available on the record.
18. It is to be noted that vide interim order dated 16.01.1996 passed in Writ Petition No.331 (S/S) of 1996, this Court was pleased to provide that till the disposal of the writ petition the posts in question shall not be filled up.
19. On 05.02.2009, this Court finally heard the issue in question and allowed the same. While considering the rival submissions of learned counsel for the parties and after perusing the record, this Court was of the view that no material has been brought on record by filing the counter affidavit showing irregularity which has been committed by the officers concerned during the course of selection making appointment of the petitioners and other candidates. This Court further observed that merely by saying that the records were tempered shall not be sufficient to assail the appointment, which has been done by the duly constituted Selection Committee. It has further been observed that it was incumbent upon the opposite parties while filing the counter affidavit to brought on record the relevant material which has created the foundation of cancellation of order of appointment. In the absence of the material on record, it appears that the impugned orders have been passed on unfounded grounds. No substantial illegalities have been pointed out by the opposite parties in support of their submission. Therefore, this Court has observed that it appears that the selection/ appointment in question was done in accordance with rules. Therefore, this Court has held that since natural justice is the essence of fair adjudication, rooted in tradition and conscience to be ranked as fundamental, therefore, the purpose of following the principles of natural justice is the prevention of miscarriage of justice. Besides, natural justice is an inseparable ingredient of fairness and reasonableness. It is even said that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary.
20. This Court in the judgment and order dated 05.02.2009, followed the dictum of Hon'ble Apex Court in re: D. K. Yadav vs. J.M.A. Industries reported in (1993) 3 SCC 259, whereby the Hon'ble Apex Court has held that the orders affecting the civil rights or resulting eivil consequences would have to answer the requirement of Article 14 of the Constitution of India. In the aforesaid judgment, the Hon'ble Apex Court has emphasized for affording opportunity of hearing by the Authority which has the power to take punitive or damaging action.
21. Accordingly, this Court has allowed the writ petition and quashed the order dated 29.12.1995 with all consequential benefits, however, directing that the petitioners shall not be entitled for payment of any salary for the period on which they had not discharged their duties, but for other purposes petitioners shall deem to be in service with further direction that the petitioners be restored in service forthwith.
22. The State of U.P. filed the special appeal bearing Special Appeal No.778 of 2009. Since in the identical writ bearing Writ Petition No.155 (S/S) of 1996, this Court has passed the order dated 02.09.2009, therefore, the special appeal was filed challenging the order dated 02.08.2009 passed in Writ Petition No.155 (S/S) of 1996, the Special Appeal No.778 of 2009 was a leading special appeal in its identical matters and the said appeal was finally decided by the Division Bench of this Court on 02.03.2016 remanding the issue before the learned Single Judge to decide the matter afresh. The State-respondents were directed to file a detailed counter affidavit in all those writ petitions annexing therewith the copy of the enquiry report, which was not filed before the learned Single Judge.
23. In compliance of the aforesaid judgment of the Division Bench of this Court, the counter affidavit has been filed annexing therewith the enquiry report and the relevant rules. The learned Additional Chief Standing Counsel has submitted that Rule 14 of Uttar Praesh Animal Husbandry Department Group 'D' Rules, 1993 provides about the determination of vacancy and it has been found during the course of enquiry that the posts which have been advertised by the Deputy Director have not been advertised after determination of actual vacancies, therefore, Rule 14 of the aforesaid Rules have been violated. It has further been submitted in the counter affidavit that Rule 15 of the aforesaid Rules, 1993 provides about the procedure for direct recruitment clarifying the Selection Committee and quorum thereof. While making selection in question, however, quorum was complete but the Chief Veterinary Officers were included in the panel of Selection Committee, which was dehorse the rules and vitiates the Selection Committee. Besides while making the selection in question overwriting / cutting has been made in the chart showing the marks obtained by the respective candidates. The aforesaid anomaly is tentamount to the forgery, which vitiates the entire selection.
24. This Court vide order dated 20.12.2018 directed the learned Additional Chief Standing Counsel to produce the entire record in respect of the selection in question so that it can be ascertained as to whether the petitioners hereto have got any benefit out of overwriting/ cutting in the marks. The learned Additional Chief Standing Counsel was also directed to address the issue on the point that if the Selection Committee was irregular as submitted by the learned counsel for the petitioner, as to whether the selection in question can be cancelled. He was also directed to apprise the Court as to whether the vacancies in question are still available or not. The learned Additional Chief Standing Counsel produced the relevant record before this Court on 21.12.198 and perusal thereof has reflected that some overwriting/ cutting in the marks of some candidates has been made but it is not so clear as to how the petitioners have been benefited out of these anomalies. The learned Additional Chief Standing Counsel has also produced an exhaustive chart relating to all concerning districts of Ayodhya Division (erstwhile Faizabad Division) showing that 130 vacancies of Group 'D' post are lying vacant. The chart to that effect was prepared by the Additional Director, Grade-II, Veterinary Department, Ayodhya Division, Ayodhya on 20.12.2018.
25. After taking the issue in question in its entirety one thing is very clear that the posts in question were advertised by the Competent Authority, strictly in accordance with Rules, 1985 indicating the date of interview. Thereafter interview held on a particular date, final result was declared, appointment letters were issued, joining letters were also issued and the petitioners submitted their respective joining on the post in question and started functioning thereon. If there was any short comings or anomalies in the selection in question, the said selection could have been cancelled but this Court is unable to comprehend as to how such selection can be cancelled without following the principles of natural justice.
26. The learned Additional Chief Standing Counsel has further submitted that in the light of the dictum of Hon'ble Apex Court in re: Secretary, State of Karnataka vs. Uma Devi (3) and others reported in (2006) 4 SCC 1, in which, it has been held that if the process of selection is not adhered to and the same is by-passed, the selection in question can be cancelled even without affording an opportunity of hearing.
27. Further, leaned Additional Chief Standing Counsel has also cited the judgment of this Court in re: Upendra Nath vs. State of U.P. & others reported in (2002) 1 UPLBEC 298 submitting that this Court has held that if the order of appointment was void ab nitio for the reasons that the authority who has issued the appointment order had no power to issue such appointment order, no hearing was required to be given before its cancellation. He has further cited the judgment of this Court in re: Ram Dhani vs. State of U.P. & others reported in 2006 (2) ADJ 262 (All), wherein this Court has held that if an appointment is made against the provisions of Act, is void ab nitio, no notice or opportunity of hearing was required before cancelling the appointment in question. He has further cited the judgment of Hon'ble Apex Court in re: M.P. State Coop. Bank Ltd. Bhopal vs. Nanuram Yadav and others reported in (2007) 8 SCC 264 submitting that the Hon'ble Apex Court has held that if any mischief is played in making any selection affecting the result, so as to make it difficult pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee and only way out would be to cancel the whole selection.
28. As per learned Additional Chief Standing Counsel, the aforesaid principles is being followed by this Court and being considered by Hon'ble Apex Court in subsequent cases, therefore, the petitioners hereto may not claim that before cancelling their appointment an opportunity should be afforded to them.
29. Learned counsel for the petitioners has however cited certain judgments of Hon'ble Apex Court as well as of this Court submitting that before cancelling the selection/ appointment an opportunity of hearing should have been afforded to the incumbents. It has further been submitted by learned counsel for the petitioners that the cases so cited by the learned Additional Chief Standing Counsel shall not be applicable in the case in hand inasmuch as it is not a case where the vacancies were not advertised or pursuant to the advertisement interview was not held or the selection was made by any incompetent person/ panel or pursuant to the selection any petitioners had not submitted their respective joining, rather the petitioners hereto had started functioning for quite sometime. At the best, the Committee in question which selected the petitioners may be an irregular committee wherein besides all members as per Rule 15 of the Rules, 1993, Chief Veterinary Officers were the members and this fact does not vitiate the power of Selection Committee. Further, if marks so awarded to various candidates shown overwriting/ cutting, atleast the petitioners should have been afforded an opportunity to intimate that they have been benefited out of such overwriting / cutting and the petitioners should have been given an opportunity to defend their case but no exercise has been done before cancelling the selection of the petitioners. Therefore, the impugned action of the authorities concerned cancelling the appointment of the petitioners is illegal, arbitrary and violative of principles of natural justice.
30. The Hon'ble Apex Court in the case of Shrawan Kumar vs. State of Bihar & others reported in 1991 (supp) (1) SCC 330 has held that if the appointment of duly selection candidates have been cancelled the opportunity of hearing should have been provided to them.
31. The Hon'ble Apex Court in re: D. K. Yadav vs. M/s. J. M. A. Industries Ltd. reported in 1993 (3) SCC 259 has held in para-11 as under:-
"11. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. In D. 7. C. v. D. T.C. Mazdoor Congress and Ors. (supra) the constitution bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside."
32. The Hon'ble Apex Court in re: Mahipal Singh Tomar vs. State of U.P. and others reported in (2013) 16 SCC 771 has held in paras-15, 40 and 44 as under:-
"15. In administrative law, the "rules of natural justice" have traditionally been regarded as comprising audi alteram partem and nemo judex in sua causa. The first of these rules requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue. This has been used by the courts for nullifying administrative actions. The premise on which the courts extended their jurisdiction against the administrative action was that the duty to give every victim a fair hearing was as much a principle of good administration as of good legal procedure.
40. In the Interpreet Singh Kahlon vs. State of Punjab, a two Judge Bench of this Court considered the question whether the selection and/ or appointment to the Punjab Civil Service (Judicial Branch) could be cancelled on the allegations of favoritism and corruption without giving opportunity of hearing to the selected candidates. The appellants in that case had been selected for appointment to the Punjab Civil Service (Judicial Branch). On receipt of the complaints that there were large scale irregularities in the process of selection, the High Court recommended to the State Government that the entire selection may be cancelled. The State Government accepted the recommendations of the High Court and cancelled the selection. The affected candidates, some of whom had already been appointed against the vacant posts, challenged the decision of the High Court and the State Government. A three Judge Bench of the High Court dismissed the writ petitions. This Court reversed the order of the High Court and held that the selection could not have been cancelled without giving notice and opportunity of hearing to the affected candidates.
44. We shall now advert to the impugned orders. As analysis thereof shows that the High Court had mainly relied upon the fact-finding report prepared by the District Magistrate, referred to the provisions of the 1980 Act and held that the appellants' placement in the particular colleges was contrary to law and they were responsible for such placement. The High Court noted that some of the appellants had been placed in the colleges which were not even advertised by the Commission and other were placed against the vacancies notified in earlier years. In the opinion of the High Court, the placement of the appellants was per se illegal and void. However, the record produced before this Court does not show the appellants' direct involvement in their placement in the particular colleges. That apart, the questions whether the appellants' placement in the particular colleges was contrary to the statute and whether their placement was subsequently changed for extraneous considerations could not have been decided without supplying each one of them copy of the inquiry report and without giving him/ her an effective opportunity to controvert the findings recorded by the District Magistrate, who had prepared the report by looking at one side of the coin. He did not give opportunity to any of the appellants to represent his/ her cause or explain his /her position. Not only this, he did not confront any of the appellants with the adverse material produced before him. Therefore, the report of the District Magistrate could not have been relied upon by the State Government for directing cancellation of the placement of the appellants in the particular colleges and the Director committed grave illegality by mandating the termination of their services."
33. The Hon'ble Apex Court in re: State of M.P. vs. Lalit Kumar Verma reported in (2007) 1 SCC 575 has held in para-12 as under:-
"12. The question which, thus, arises for consideration, would be : Is there any distinction between 'irregular appointment' and 'illegal appointment'? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to."
34. The Hon'ble Apex Court in re: Joginder Pal vs. State of Punjab and others reported in (2014) 6 SCC 644 has held in paras-33, 36, 37, 39 & 40 as under:-
"33. The question that falls for consideration is as to whether the entire process could be labelled as vitiated because of purported manipulations, forgery and fraud? Or, to put it otherwise, once the non-tainted persons are segregated from tainted ones, would it still be justified to quash the entire selection, even when non-tainted made into the service because of their merit?
36. We have already narrated the background in which judgment in Inderpreet Singh Kahlon (supra) was rendered by this Court. Those were the appeals filed against the Full Bench judgment in Amarbir Singh (supra) where the Court had held that the action of the Government in cancelling the entire selection process was justified. This very conclusion of the Full Bench was challenged by the appellants in Inderpreet Singh Kahlon (supra) with specific plea that it was not a case for cancelling the entire selection process and, in the first instance, the Court should have attempted to find out as to whether cases of the candidates who were tainted could be segregated from those who were unblemished. The court was convinced with the submission. While setting aside the judgment and remanding the case back, the Court went to the extent of holding that by clubbing together tainted as well as non-tainted persons, two unequal classes were clubbed together and it amounted to violation of Articles 14 and 16 of the Constitution of India. It was also held that no attempt was made in this direction, namely, whether there was a possibility of segregating the two classes of persons. The Court found that as the relevant records were still available a fair investigation into the whole affair was possible.
37. We would like to reproduce hereunder some portions of the judgment of S.B. Sinha, J. in Inderpreet Singh Kahlon (supra) touching upon this aspect:
"43. Apart from inferences drawn on certain facts and in particular the circumstances enumerated by the High Court which have been repeated by the learned counsel for the State before us, it is difficult to accept that it was demonstrated by the State that it was absolutely impossible for it to separate the innocent people from the tainted ones.
45. If fraud in the selection process was established, the State should not have offered to hold a reselection. Seniority of those who were reselected ordinarily could not have been restored in their favour. Such an offer was evidently made as the State was not sure about the involvement of a large number of employees.
46. A distinction moreover exists between a proven case of mass cheating for a board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved.
50. In those cases also tainted cases were separated from the non-tainted cases. Only, thus, in the event it is found to be impossible or highly improbable, could en masse orders of termination have been issued.
51. Both the State Government as also the High Court in that view of the matter should have made all endeavours to segregate the tainted from the non-tainted candidates.
59. In a case of this nature, thus, the question which requires serious consideration is as to whether due to the misdeed of some candidates, honest and meritorious candidates should also suffer."
39. It becomes crystal clear that the concern of the Court was that for the misdeeds of some candidates, honest and meritorious candidates should not suffer. Therefore, endeavour should be made to segregate the tainted candidates from those who were without any stigma and had been selected because of their sheer merit and not on account of any illegal considerations. We would also like to reproduce some of the parts of the concurring judgment authored by Justice Dalveer Bhandari (as His Lordship then was) with the aforesaid message, eloquently and impeccably:
"118. Undoubtedly, in the selection process, there have been manipulations and irregularities at the behest of R.S. Sidhu, the then Chairman, Punjab Public Service Commission. On careful scrutiny of the facts and circumstances of the case, in my considered opinion, the High Court ought to have made a serious endeavour to segregate the tainted from the non-tainted candidates. Though the task was certainly difficult, but by no stretch of imagination, it was not an impossible task.
124. The High Court has not considered the case in the proper perspective. The consequences of en masse cancellation would carry a big stigma particularly on cancellation of the selections which took place because of serious charges of corruption. The question arises whether for the misdeeds of some candidates, honest and good candidates should also suffer on en masse cancellation leading to termination of their services? Should those honest candidates be compelled to suffer without there being any fault on their part just because the respondents find it difficult to segregate the cases of tainted candidates from the other candidates? The task may be difficult for the respondents, but in my considered view, in the interest of all concerned and particularly in the interest of honest candidates, the State must undertake this task. The unscrupulous candidates should not be allowed to damage the entire system in such a manner where innocent people also suffer great ignominy and stigma.
125. This Court had an occasion to examine a similar controversy in the case of Onkar Lal Bajaj's case (supra). In that case, there were serious allegations of political patronage in allotment of retail outlets of petroleum products, (LPG distributorships and SKO-LDO dealerships). This Court laid down that how could a large number of candidates against whom there was not even insinuation be clubbed with handful of those who were said to have been allotted dealerships/distributorships on account of political connection and patronage? This Court clearly stated that the two were clearly unequals. Equal treatment to unequals is nothing but inequality. This is the most important principle which has been laid down in this case by this Court. The Court further observed that to put both the categories, tainted and the rest, on par is wholly unjustified, arbitrary and unconstitutional, being violative of Article 14 of the Constitution. In somewhat similar circumstances, in this case, the Government, instead of discharging its obligation, unjustly resorted to the cancellation of all the allotments en masse by treating unequals as equals without even prima facie examining their cases. Those officers whose services were affected because of en masse cancellation have not been given an opportunity to represent before the concerned authorities. In the case of Onkar Lal Bajaj there were 413 cases and the task was indeed difficult to segregate the cases of political connection and patronage with other cases. But, even then, this Court while, setting aside the order of the Government cancelling the allotment, appointed a Committee of two retired Judges, one of this Court and another from the Delhi High Court, and they were requested to examine all 413 cases and decide the matter after getting the report from that Committee appointed by the Court."
40. In view of the above, the issue of entire selection process having been vitiated would have arisen only if the findings of the Committee were that it was not possible to distinguish the cases of tainted from the non-tainted ones and there was a possibility that all of them would have got the benefit of wrong doings of Mr. Sidhu and his accomplices. Fortunately for these appellants, it is not so as they have been found innocent. The appellants get ensconced, earning a safe place, once they are removed from the category of nefarious persons. Though the tainted candidates have rightly received their comeuppance, but the innocent persons cannot be punished with them. Thus, it is difficult to accept the fallibilistic conclusion of the High Court.
44. It would be apposite to quote the following portion of the said judgment in this behalf:
"26. It is not in dispute any more that the candidates were given fresh opportunity to appear for selection for the aforesaid post in the exams exclusively held for them in the year 2004. Out of 57 such candidates, 20 candidates were reslected and they were given benefit of original appointment. As many of these candidates are the respondents and have worked as judicial officers for some period and it has also not been proved or established completely against them that they had indulged in malpractice in examinations, we are of the view that they should also be given reappointment and posting orders to the existing vacancies in the State of Punjab and if no vacancy exists, Mr. Sharan has assured the court that the State will create supernumerary posts for them but they would not be entitled to get all the benefits as have been granted to them vide the impugned judgment.
27. However, it should not be construed that our judgment is giving seal of approval to the judgment of the Full Bench of the Punjab and Haryana High Court but with an intention to work out the equities and to do complete justice between the parties and in view of the earlier judgment of his Court in Kahlon case that tainted candidates be separated from untainted, meaning thereby that this Court did not accept the submission that it was not practically possible to do so; and further this Court had taken note of reselection held in 2004 in para 92 of the judgment, but held that the effect thereof would be subject to this case, this is the only via media, through which the respondents could also be granted relief as it could not be established that even otherwise, they would have been declared as unsuccessful candidates. Precisely, that is the reason we have moulded the reliefs granted to the respondents by the High Court as our order is not likely to affect seniority of any of the judicial officers, who had already been working prior to the respondents. We are conscious of the fact that by this procedure, there is no likelihood of any offshoots of the said order and hopefully the whole controversy triggered in the year 1998, would stand settled for all times to come."
35. Considering the facts and circumstances of the issue in question and also the settled proposition of law on the subject by the Hon'ble Apex Court, I am of the considered view that the petitioners of this batch of writ petitions have been selected, strictly in accordance with law, subject to some irregularities which could have been cured and that irregularity does not permit the authorities concerned to cancel the selection in question without providing an opportunity of hearing, therefore, the impugned order cancelling the appointment of the petitioners are liable to be quashed and according the same are quashed.
36. The writ in the nature of certiorari is issued quashing the office memorandum dated 27.12.1995 issued by the Secretary, Department of Animal Husbandry, Government of U.P., Lucknow cancelling the selection dated 26.11.1995 made by the Deputy Director, Department of Veterinary, Faizabad Region, Faizabad on the vacant posts of Class-IV and its consequential orders being passed by the Chief Veterinary Officers concerned.
37. The writ in the nature of mandamus is issued commanding the opposite parties to allow the petitioners to continue in service on the post on which they had joined on 02.12.1995. However, the petitioners shall not be entitled for payment of any salary for the period for which they had not discharged their respective duties but for other purposes the petitioners shall be deemed to be in service. The opposite parties are directed to restore the petitioners in service forthwith.
38. The opposite parties shall make compliance of this order with expedition, preferably say within a period of three months from the date of presentation of a certified copy of this order.
39. In view of the above, all the writ petitions are allowed.
40. No order as to cost.
Order Date :- January 24, 2019 Suresh/ [Rajesh Singh Chauhan,J.]