Allahabad High Court
Satyendra Kumar Singh vs State Of U.P. Thru Secy. Medical Health & ... on 14 June, 2013
Author: Shabihul Hasnain
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Writ Petition No.1832 (S/S) of 2008. Satyendra Kumar Singh Vs. State of U.P. and others. With Writ Petition No.8100 (S/S) of 2009, Rakesh Mohan Dwivedi Vs. State of U.P. and others. Writ Petition No.4688 (S/S) of 2008 Shri Govind Verma and others Vs. State of U.P. and others. Writ Petition No.4788 (S/S) of 2008 Balram Shukla Vs. Union of India and others. Writ Petition No.6451 (S/S) of 2008 Rajendra Prasad and others Vs. State of U.P. and others. Writ Petition No.8048 (S/S) of 2010 Satya Prakash Maurya and another Vs. State of U.P. and Ors. Writ Petition No.7346 (S/S) of 2008 Irshad Ahmad and others Vs. State of U.P. and others Writ Petition No.7990 (S/S) 2007 Ram Adhar Yadav Vs. State of U.P. and others. Writ Petition No.3449 (S/S) of 2007 Shailendra Kumar and others Vs. State of U.P. and others Writ Petition No.1980 (S/S) of 2008 Mangroo Prasad and others Vs. State of U.P. and others and Writ Petition No.1909 (S/S) of 2008 Raj Mangal Singh Vs. State of U.P. and others. Hon'ble Shabihul Hasnain, J.
Heard Dr. L. P. Mishra, learned counsel for the petitioners and learned Standing counsel for the opposite parties. Valuable assistance has been provided by Ms. Twishi Srivastava, Law Trainee of this Court.
This is a bunch of writ petitions, the leading being the writ petition No.1832 (S/S) of 2008. These writ petitions have been filed against the order dated 10/6/2007 and inquiry report dated 8/6/2007 by which appointment of petitioners on class IV post has been declared void by opposite party no 2. To test the legality of impugned order it becomes necessary to narrate the facts of the case which are as follows:
The Director(Administration) Medical and Health Services,U.P., opposite party no 2vide letter dated 25/9/2006 communicated the permission granted by State Government for appointment on class IV post in Hospitals, District Hospitals and Regional Offices etc of Faizabad and Devipattan Divisions, this letter is annexed as Annexure no CA 1 to the counter affidavit. Immediately after issuance of this letter, Director(Administration) issued another letter dated 27/9/2006 directing officers concerned that while making appointments pursuant to the letter dated 25/9/2006, the Government Order, Rules as well as the Directions issued from time to time shall be strictly adhered to and the procedure of selection be adopted with specific care. It was further directed that the reservation criteria as prescribed under the rules shall also be strictly followed. In the letter dated 25/9/2006 a time table was prescribed for undertaking the exercise for making recruitment on class IV post, pursuant to this letter, the Additional Director, Medical Health and Family Welfare, Faizabad Division, Faizabad, opposite party no 4, circulated the same to all the Chief Medical Officers / Chief Medical Superintendents, District Hospitals and Medical Superintendents of District Women Hospital of Faizabad Division through an endorsement dated 30/10/2006 made in the said letter. In this endorsement it was specifically directed by the Additional Director that the entire exercise shall be done after lifting of the Election Code of Conduct.
It is interesting to note here that the then Chief Medical Officer of Ambedkar Nagar namely Dr. V. P. Pandey before receiving formal direction of recruitment on class IV post , on 9/10 /2006 i.e. prior to 30/10/2006 date on which letter was circulated for recruitment on class IV post, issued an advertisement for filling up the vacancies of class IV post. However after receiving formal directions of letter dated 25/9/2006, Dr. V.P.Pandey, opposite party no 5 cancelled the advertisement dated 9/10.2006. Subsequent advertisement was published in the newspaper on 9/11/2006,fixing thereby 24/11/2006 to be the date of interview.
In the meantime, a complaint was made by one Sri Ram Murti Verma before the then Minister, Medical,Health and Family Welfare against Dr. V.P.Pandey, on the ground that Dr. V.P.Pandey has accepted bribe from several candidates. On receiving the complaint, the then Minister of the Ministry concerned directed the Principal Secretary, Medical,Health and Family Welfare, U.P. to inquire into the matter. State Government opposite party no1 while taking cognizance of the said complaint, containing serious allegations of accepting bribe against the Chief Medical Superintendent of Ambedkar Nagar Dr. V.P.Pandey, vide an order dated 22/11/2006 stayed the proceedings of selection till further order of the State Government. Thereafter, Director General, Medical and Health Services U.P., opposite party no2, vide an order dated 23/11/2006 directed the Additional Director, Medical Health and Family Welfare, Faizabad Division, Faizabad, opposite party no 4, to conduct the inquiry into the matter. opposite party no 4 vide its report dated 25/11/2006 recorded a finding that the selection was being made by Dr. V. P.Pandey as per rules and copy of report was also sent to State Government.
Although this report stated that there was no irregularity in selection procedure, yet the selection process stayed by the State Government vide order dated 22/11/2006 remained stayed. This stay order dated 22/11/2006 was with respect to the district Ambedkar Nagar only, however the State Government by a general order dated 29/11/2006 stayed the selection process of class IV post in the entire State of U.P. Against the order dated 22/11/2006 one Smt Rajkumari along-with several other persons preferred a writ petition bearing no 9880(S/S) of 2006 in which this court vide its judgment dated 23/3/2007 directed that in case the inquiry regarding the selection stood concluded and a report had been submitted to the State Government and complaints have been found to be baseless, the respondent may proceed with the selection in accordance with law.
In the garb of report submitted by Additional Director opposite party no4 on 25/11/2006 and order of this court dated 23/3/2007, Dr. V.P.Pandey sought legal opinion from the District Government Council (Civil), Ambedkar Nagar, regarding stay of selection dated 22/11/2006, who in response opined vide letter dated 29/5/2007 that now the selection can be proceeded with.
In the mean time, Additional Director opposite party no4 vide letter dated 28/5/2007 advised Dr. V.P.Pandey that the purpose of filling of the backlog vacancies pertaining to the reserved categories of SC,ST and OBC and while making such selection the orders and directions issued by the State Government from time to time in the matter of said appointment be strictly adhered to. Inspite of these specific directions Dr. V.P.Pandey conducted selection proceedings in violation of these directions and interviewed 1817 candidates in a single day i.e. on 29/5/2007. After interviewing such a huge number of candidates in a single day, astonishingly, on the very next day i.e. on 30/5/2007, appointment letters of 62 selected candidates were also issued. These candidates were given joining on the same very day i.e. on 30/5/2007. Dr. V. P. Pandey went out of way to ensure payment of salary to the petitioners. He withdrew the salary of selected candidates for 2 days i.e. 30/5/2007 and 31/5/2007 through a bearer cheque from the State Bank Of India, branch Ambedkar Nagar on 8/6/2007 in violation of rules of State Government. Rules expressly prohibit the payment of salary in cash to employee. On the same date opposite party no4 by taking cognizance vide letter dated 8/6/2007,addressed to Chief Treasury Officer, Ambedkar Nagar, requested to stop the payment of the salary of 62 selected candidates, as annexed in Annexure no CA6.
In the light of aforesaid illegalities committed by Dr. V.P.Pandey and several other employees, an FIR was lodged against him as well a against 62 selected candidates on 9/6/2007 i.e. the next day. It was registered as case crime no 245/2007undr section 419/420/466/468/471 of Indian Penal Code 1860, police station kotwali Akbarpur, district Ambedkar Nagar. On 10/6/2007 the then Additional Director of Division concerned directed Dr. V.P.Pandey that the Director General, Medical and Health Services U.P.,opposite part no 2 has declared 62 appointments made by Dr. B.P. Pandey to be void and the said employee may be restrained from working and from signing the register. Letters dated 8.6.2007 and 10.6.2007 are annexed as Annexure nos. C.A. 11 & 12. On 8.6.2007 Additional Director Faizabad Division was directed by Principal Secretary, Department of Medical Health and Family Welfare, U.P. to inquire in to the matter and on the same day Additional Director submitted its report as annexed in C.A. 13 to the writ petition, containing categorical findings regarding the corruption in selection to State Government. By taking cognizance of the said report State Government and Director (Administration), Directorate of Medical and Health Services, U.P. vide order dted 9.6.2007 placed all the persons involved in said illegal selection under suspension. On 11.6.2007 District Magistrate, Ambedkar Nagar constituted a committee comprising of Chief Development Officer, Ambedkar Nagar, Additional District Magistrate ( F&R) Ambedkar Nagar and Soil Conservator, Ambedkar Nagar to conduct an inquiry in the matter regarding the said appointment. This committee submitted its report on 16.6.2007 as contained in C.A. 15 wherein it reveals a large scale illegalities and irregularity committed in selection proceedings.
Petitioners have taken a contention that action of opposite parties in not permitting the petitioners to discharge their duties is patently arbitrary and malafide, particularly when no reasons have been assigned by the opposite parties for restraining the petitioners from discharging their duties inspite of the fact that the petitioners have not only submitted their joining in terms of their appointment order but have also worked on the said post and received salary against it. Petitioners have further argued that since petitioners have joined duties and worked on their posts, a right has accrued in favour of petitioners, hence impugned action of the opposite parties in declaring the appointment of the petitioners is void as no opportunity of hearing was given to the petitioners and it amounts to violation of principles of natural justice.
In counter to these arguments, opposite parties have argued that since the whole selection in question was void, therefore, there was no requirement to give opportunity of hearing to the petitioners prior to declaring their services to be void. Opposite parties have placed their reliance on para no. 12 of the judgment reported in (2002) 3 Supreme Court Cases 146 ( Union of India and others vs. O. Chakradhar). Paragaraph no. 12 of the aforesaid judgment is being quoted herein below:
"12. As per the report of CBI the whole selection smacks of mala fides and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheet while in the custody of Chairman, in holding typing test, in interview and in the end while preparing the final result. In such circumstances it may not be possible to pick out or choose a few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could such selection be acted upon in the matter of public employment? We are therefore, of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale, widespread and all -pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise, but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishan Yadav applies to the facts of the present case. The Railway Board's decision to cancel the selection cannot be faulted with. The appeal therefore deserves to be allowed."
Opposite parties have further argued that a detailed inquiry was conducted to check the illegality of selection in question and inquiry report has established the fact of gross illegality committed in selection procedure. Since a speaking order has been passed by the opposite parties, the action of opposite parties is neither arbitrary nor malafide.
Opposite parties have also argued that interview of 1871 candidates in a single day is highly improbable and this fact itself prima facie establishes that selection procedure was farce and mockery. In support of his contentions, opposite parties have placed reliance upon para 19 of Lalit Kumar and others Vs. King George's Medical University, Lucknow and others, 2007 (25) LCD 460 which reads as under:-
"19. In Raj Kumar V. Shakti Raj, reported in (1997) 9 SCC 527, the Hon'ble Apex Court has held that it is not practically possible to interview so many candidates and if interview held it will be a fare and mockery. Thus the interview was mere a farce and mockery and humanly impossible to interview more than six hundred candidates in two days. In the instant case, as per the Rule 5(4) (a) it specifically provides that a number of candidates to be called against the number of vacancies but in the instant case, more than six hundred candidates appeared and had been interviewed on the aforesaid two days. Admittedly, no marks have been awarded for academic qualification as required under Rule 5(1) (I) to (iii) of Rules 2003 but cent per cent marks have been reserved for interview."
In counter to this petitioners have argued that interview was for class IV posts which need not much time to be spent for interview. Class IV post does not require immense knowledge hence within a short span of time, candidates for class IV posts can easily be interviewed. In support of this contention petitioners have relied upon para 6 of Sardara Singh Vs. State of Punjab and others, 1991 (4) SCC 555 and 619 which reads as under:-
"6. It is next contended that there was no proper opportunity given to the appellants in the interview. Only 15 hours were spent to interview 821 candidates and the selection, therefore, is a farce. This contention also was not raised before the High Court, but raised In these appeals for the first time. In the counter filed in this Court, it was refuted. It was stated that they had spent 35 hours in total at the rate of 7 hours per day. That means they spent 5 days in selecting the candidates. The selection is for the Patwaris in the Class III service. The ratio in Ashok Kumar Yadav V. State of Haryana has no application to the facts in this case. Therein the selection was to the Class I service of the State service and sufficient time was required to interview each candidate. In this case, on calculation, we found that on an average three minutes were spent for each candidate for selection. Rule 7 of the Rules provides the qualifications, namely, pass in the Matriculation or Higher Secondary Examination; knowledge in Hindi and Punjabi up to the Middle Standard and good knowledge of rural economy and culture. The educational qualifications are apparent from record and need no interview in this regard. It could be seen that candidates normally hailing from rural backgrounds had presumptively good knowledge of rural economy and culture. Therefore, there is no need for special emphasis to ascertain their knowledge of the rural economy or culture. Under those circumstances much time need not be spent on each candidate for selection except asking some questions on general knowledge and aptitude for work as Patwari etc."
The petitioners have further relied upon para 42 of the judgment of Hon'ble Supreme Court in the case of Sadanand Halo and others Vs. Momtaz Ali Sheikh and another, 2008 (4) SCC 619 which is quoted as under:-
"42. To sum up, these were the interviews for the post of constables and the minimum educational standard was prescribed as 7th Class pass. There were no requirements of testing the administrative or management capacity of the candidates and/or any other quality which is required for the higher posts. All that was necessary was firstly to see their physical fitness in terms of physical endurance, their smartness in appearance and further to test their intelligence level as required for the post of constable including their general knowledge. We cannot ignore that thousands of candidates had turned up and what we find from the guidelines was, firstly these candidates had to fulfill physical standards in terms of height, etc. as also the minimum educational qualification. Obviously all the candidates could not have had those physical standards."
The petitioners have taken another contention that even if it is presumed that whole selection was illegal petitioners are not at fault as petitioners are duly qualified for the post and they have been appointed after they have passed the interview. Petitioners have also argued that since liability of such illegality of selection in question has been fixed upon the Dr. V. P. Pandey and other employees by inquiry report, they should only suffer for their fault. Petitioners have participated in bonafide manner in selection procedure and they should not be allowed to suffer for the fault of another person.
Petitioners have further argued that since there has been no strict action against Dr. V. P. Pandey, who is solely responsible for illegal selection in question, his burden of liability can not be shifted at the petitioners. If Dr. V. P. Pandey has not been proceeded against, it clearly gives impression that opposite parties are admitting the legality of selection procedure.
In counter to these arguments opposite parties have stated that the moment cognizance about such illegal selection was taken, Dr. V. P. Pandey and other employees were suspended at that very moment. Opposite party has further stated that exoneration of delinquent does not absolve the illegality committed in selection procedure. To support this contention the opposite parties have placed reliance upon para 32 of Rakesh Kumar Kanaujia Vs. State of U.P., 2011 (1) ALJ 61 which reads as under:-
"32. The third issue relates to exoneration of Dr. P. N. Shukla in the disciplinary inquiry. The disciplinary inquiry was initiated against Dr. P. N. Shukla, the then Chief Medical Officer alleging irregularity and illegality in the selection. The State Government has exonerated the Chief Medical Officer from the charges. The exoneration of Dr. P. N. Shukla, Chief Medical Officer from the charges and holding that no misconduct was committed by the Chief Medical Officer (Dr. P. N. Shukla) cannot be treated to be affirmation of the process of selection and appointment made by Dr. P. N. Shukla. Dr. P. N. Shukla may not be found guilty of misconduct but mere exoneration from misconduct cannot be treated to be affirmation of the selection process undertaken by him."
In view of above stated facts and arguments of both the parties and after a keen observation of records Court is of the view that the selection in question is liable to be quashed on the grounds of various illegalities.
Firstly, inquiry report as contained in annexure No.CA-15 has itself established the illegality of selection procedure. Court has gone through inquiry report in an exhaustive manner and the Court is fully convinced that inquiry report has proved the illegality of selection in question.
Secondly, interview of 1817 candidates in a single day is beyond human imagination. This view of the Court gets support from ratio of Hon'ble Apex Court in the case of Raj Kumar V. Shakti Raj, reported in (1997) 9 SCC 527 in which, Hon'ble Apex Court has held that it is not practically possible to interview so many candidates and if interview held it will be a farce and mockery. Thus the interview was mere a farce and mockery and humanly impossible to interview more than six hundred candidates in two days. In the instant case, as per the Rule 5(4) (a) it specifically provides that a number of candidates to be called against the number of vacancies but in the instant case, more than six hundred candidates appeared and had been interviewed on the aforesaid two days. Admittedly, no marks have been awarded for academic qualification as required under Rule 5(1) (I) to (iii) of Rules 2003 but cent per cent marks have been reserved for interview.
Petitioners have supported their contention by relying on Sardara Singh and others (supra) and Sadananda Halo and others (supra) but ratio of both the cases finds no application in the instant case. In the case of Sardara Singh (supra) only 821 candidates were interviewed that too for five days spending seven hours per day, whereas in the instant case 1871 candidates, more than twice of 821 candidates were interviewed that too in a single day. Thus, this factual situation itself speaks non-application of ratio of Sardara Singh (supra) in present case.
Petitioners have further relied upon Sadanand Halo's case specifically upon para 42(supra).
The plain reading of this para suffices to establish that ratio is not applicable in the present case because in Sadanand Halo's case decisive factor for selection was physical endurance for which an exhaustive test was already conducted. There were not many candidates to be interviewed. Interview was merely for the purpose to check whether interviewee falls within prescribed physical fitness or not ? If he falls then only he was to be interviewed. Para 44 says that this case itself demonstrated the same.
Petitioners have also drawn the attention of this Court towards para 41 of this case which is quoted as under:-
"41. The question of large number of candidates appearing for the selection process again came up before this Court in Joginder Singh v. Roshan Lal. A complaint was made in this case that 323 candidates appeared for the test in two days and on that basis a select list was prepared by the Departmental Promotion Committee. The High Court called this selection process as a farce on the ground that fair chance was never given to the candidates to show their worth. The Court observed in para 5 as under:-
(SCC pp. 766-67) "5. On the facts on record we see no justification for the High Court to have come to this conclusion. The High Court in exercise of its jurisdiction under Article 226 of the Constitution is not supposed to act as an appellate authority over the decision of the Departmental Selection Committee. If the Committee has been properly constituted, as in this case, and the post is advertised and a selection process known to law which is fair to all, is followed, then the High Court could have no jurisdiction to go into a question whether the Departmental Selection Committee conducted the test properly or not when there is no allegation of mala fides or bias against any member of the Committee. Merely because there were a large number of candidates who appeared on two days, cannot ipso facto lead to the conclusion that the process of selection was a farce and fair chance was not given. Normally experienced persons are appointed as members of the Selection Committee and how much time should be spent with a candidate would vary from person to person. Merely because only two days were spent in conducting the interviews for the selection of Class IV posts cannot lead to the conclusion that the process of selection was not proper."
In this para Hon'ble Apex Court itself has stated that "if the committee has been properly constituted, as in this case, and the post is advertised and a selection process known to law which is fair to all, is followed, then the High Court could have no jurisdiction to go into a question whether the Departmental Selection Committee conducted the test properly or not when there is no allegation of mala fides or bias against any member of the Committee." Unlike this case, in the present case no advertisement was there, selection committee was not properly constituted, no fair selection process was adopted and also there was an element of bias and mala fide. These all factors were proved by inquiry report in detail.
Apex Court has also stated that "normally experienced persons are appointed as members of the Selection Committee and how much time should be spent with a candidate would vary from person to person. Merely because only two days were spent in conducting the interviews for the selection of Class IV posts cannot lead to the conclusion that the process of selection was not proper."
It becomes here important to show the figures of candidates in cited case and in the instant case. In the cited case, in the District of Dhubri, 3722 candidates were interviewed for nine days i.e. approx. 414 candidates per day. In the District of Barpeta 5540 candidates were interviewed i.e. approx. 616 candidates per day. In District Sonitpur approx 500 candidates were interviewed per day. In the present case 1817 candidates were interviewed in a single day which is almost thrice of figures stated above.
Even if it is presumed that the interview was conducted since morning to night, as stated by the petitioners, maximum 16 hours in a day can be spent. Even if 1817 candidates are interviewed, although this figure is too improbable, then too maximum approx. 31 seconds are spent on a single candidate. And astonishingly this time also includes period of preparing appointment letter on the basis of result of this interview. In nutshell, this single day include, interview of 1817 candidates, then result of this interview, then preparation of appointment letter.
This whole transaction is beyond human imagination and it is so preposterous that it becomes itself evidence against it for the glaring illegalities committed therein.
Ordinarily, Courts can not question the competency of selection committee or decide what time should be spent on a single candidate but in the event selection suffers from bias, mala fide, absence of duly constituted committee or the illegality committed in selection is apparent on the face of it, Courts are bound by law to check the legality.
Hence, in view of above facts, ratio of the case of Sadanand Halo's (Supra) is not applicable in the present case.
Thirdly, whole selection procedure suffers from mala fide. This mala fide can be established by conduct of Dr. V. P. Pandey. First of all, Dr. V. P. Pandey issued an advertisement dated 9.10.2006 for recruitment of class IV post which is much prior to the date of receiving of official letter for such selection in question i.e. dated 30.10.2006. Although this advertisement was withdrawn and a fresh advertisement was issued on 9.11.2006 but this factor can not deny the absence of mala fide.
After issue of advertisement showing his extraordinary human approach, which a person of ordinary prudence would never be able to do, Dr. V. P. Pandey interviewed 1871 candidates in a single day and issued appointment letter on the very next day.
Further showing his utter concern to selected employees, Dr. V. P. Pandey withdrew the salary of these employees for two days through a bearer cheque. Although there are specific rules of State Government that salary will not be paid to employees in cash. But Dr. V. P. Pandey preferred to violate the Rules of the State Government then to make suffer selected candidates for non-payment of salary for two days and he paid the salary to employees in cash.
This whole transaction is self-speaking about the mala fide contained in it.
The petitioners have taken contention that in the event selection is presumed to be illegal, Dr. V. P. Pandey should only suffer from it and if he is not being given any punishment even after fixing his sole liability it means selection procedure made by him is valid. This contention was rebutted in the case of Rajesh Kumar Kanaujia (supra). In view of this precedent the Court is of the view that fixing liability and quantum of punishment all two different facets. Facts which are taken into consideration for fixing liability, not necessarily are considered while imposing punishment and vice versa. Thus, 'minimum punishment or no punishment'. This factor can not lead to conclusion that there was no liability at all. No amount of punishment does not absolve the liability. Hence, even if Dr. V. P. Pandey is exonerated it will not change the nature of selection in question from illegal to legal. Although it has been informed to the Court by opposite parties that Dr. V. P. Pandey has been placed under suspension and proceedings against him are going on.
An important legal plea has been raised by the petitioners that the opposite parties have declared the selection void on 8.6.2007 but inquiry to test the alleged illegality in selection has been initiated subsequently i.e. on 10.6.2008. The petitioners have argued that when opposite parties declared the selection void, there was no inquiry and a subsequent inquiry can not validate the act of opposite parties.
Court is of the view that in this case inquiry is not validating act of opposite party but it is of corroborative value here. Due to such glaring illegalities the opposite parties have rightly acted in declaring the selection void. The decision taken by the opposite parties was not based on inquiry report but on series of circumstances which are self-speaking about its illegalities. Inquiry was conducted not to check illegalities but to fix the liabilities as who was responsible for such a large scale illegalities in selection. Since evidentiary value of inquiry report was corroborative and not substantive, plea of petitioners is not maintainable.
In view of what has been discussed hereinabove, the writ petitions are dismissed.
Dt.14.6.2013.
RKM.