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2003 DIGILAW 1219 (ALL)

ARVIND KUMAR PIPAL v. COMMISSIONER TRADE TAX

2003-05-20

RAKESH TIWARI

body2003
RAKESH TIWARI, J. Heard Counsel for the parties. 2. This petition arises out of an order of termination of the petitioner dated 3rd January, 2003 passed by the Deputy Commissioner (Administration), Trade Tax, Aligarh. 3. By advertisement dated 14th August, 2002 applications were invited for filling up backlog of vacancies of 7 posts of Class-IV employees in the Trade Tax Department District Aligarh from amongst Scheduled Caste candidates. Pursuant to the advertisement, petitioners applied for appointment and after selection and interview they were selected. Petitioner Nos. 1, 2 and 4 to 7 joined on 24th September, 2002 and petitioner No. 3 joined on 10th December, 2002 pursuant to the appointment letters issued in their favour dated 23rd September, 2002. 4. By an order dated 20th December, 2002 (Annexure-6 to the writ petition) the State Government cancelled the appointments, as a consequence of which the Deputy Commissioner (Administration) Trade Tax, Aligarh issued identical termination orders dated 3rd January, 2003, which have been impugned in the present petition alongwith the Government Order dated 20th December, 2002. 5. The bone of contention, and the legal question involved in the present writ petition, is whether the principles of natural justice are to be followed in cancelling the appointments of the petitioners. 6. A short counter-affidavit was filed on behalf of the respondents. In para 4 of the short counter- affidavit it has been stated that the merit list of the selected candidates was not prepared properly and after enquiry it was found that petitioner No. 6 Pravendra Kumar has manipulated his marks in connivance of certain responsible persons of the respondent office. It is also mentioned that out of 3559 applicants, interview letters were issued only to 2204 applicants, but the decision of the rejection of 1550 applications was never taken by the selection committee. It has been averred in paras 18 to 20 of the writ petition that the impugned orders have been passed in violation of principles of natural justice and without affording any opportunity of hearing to the petitioners. These averments have been rebutted in para 7 of the supplementary counter-affidavit of Sri A. N. Tripathi. The Counsel for the petitioner has urged that the present case is a case of cancellation and it is settled that cancellation can take place only after complying the principles of natural justice. These averments have been rebutted in para 7 of the supplementary counter-affidavit of Sri A. N. Tripathi. The Counsel for the petitioner has urged that the present case is a case of cancellation and it is settled that cancellation can take place only after complying the principles of natural justice. Reliance has been placed by learned Counsel for the petitioners on the following decisions reported in : (i) 1990 (1) UPLBEC 1 (SC), Sridhar v. Nagar Palika, Jaunpur; (ii) 1991 Suppl (1) SCC 330, Shrawan Kumar Jha and others v. State of Bihar and others; (iii) J. T. 1998 (6) SC 464, Basudev Tiwari v. Sido Kanhu University and others; (iv) 1998 (2) LBESR 190 (All) : 1998 (1) UPLBEC 23 , Vishwamitra Yadav v. U. P. State Public Service Tribunal; (v) 1998 (1) UPLBEC 1232, Mohd. Raish Ahmad v. State of U. P. and others; (vi) 1998 (2) LBESR 322 (All) : 1998 (1) ESC 320, Muneshwar Dayal v. Zila Karyakram Adhikari; (vii) 1999 ACJ 243, Jawed Ahmad v. State of U. P. and others; (viii) 1999 (1) AWC 853 , Sanjeev Kumar and others v. State of U. P. and others. 7. Learned Standing Counsel has urged on the strength of judgment rendered by the apex Court in the case of Ashwani Kumar and others v. State of Bihar, reported in JT 1997 (1) SC 243, in which it has been observed in para 14 that if the recruitment process is not completed by following the procedure prescribed under the rules, then the selection is illegal and appointments made pursuant thereto are also illegal and while cancelling the appointment principles of natural justice are not required to be followed. Opportunity of hearing is not required in case where examination has been cancelled and the larger number of persons appeared in the examination. He further submits that the departmental proceedings have been initiated against the officers, who were involved in the irregularities, but the proceedings have not been concluded as yet and as such no positive finding of mal-fission stands recorded till date. 8. The Standing Counsel has argued that since the cancellation of the appointment of the petitioners is not a punitive measure but the result was cancelled as the petitioners selected, de hors the rules and without following the procedure prescribed for appointment. 8. The Standing Counsel has argued that since the cancellation of the appointment of the petitioners is not a punitive measure but the result was cancelled as the petitioners selected, de hors the rules and without following the procedure prescribed for appointment. He further urged that since the petitioners were appointed on temporary basis, their services can be terminated at any point of time in terms of the appointment letter. Since the cancellation of their appointment was not as measure of punishment, dismissal or removal from service, no opportunity of hearing was required to be afforded to them in aforesaid circumstances. He submitted that it is well-settled principle of law, as annunciated in the case of Purshottam Lal Dhingra v. Union of India, AIR 1958 SC 36 , that except in case of punishment, dismissal or removal from service,the appointment to a post, permanent or temporary on probation or on officiating basis or a substantive appointment to a temporary post gives to the servant so appointed, no right to the post and his service may be terminated unless his service has ripened into a quasi permanent service. 9. The Standing Counsel has also brought to the notice of this Court the judgment rendered in the case of Union of India and others v. O. Chakradhar, 2002 (1) LBESR 827 (SC) : (2002)3 SCC 146 . In this case the apex Court has held that in case of selection of the candidate where procedure has not been followed and the merit list appears to be doubtful, it is not necessary to give individual notice of show-cause to the selected candidate while cancelling entire selection. 10. Lastly, it is submitted that while considering the case of the petitioners, the respondents had taken due care and all facts and circumstances into consideration. The cancellation of selection in toto is based on enquiry report, which show several manipulations have taken place during the recruitment procedure. Not only this, the merit list had not been prepared according to the procedure and was also not approved by the selection committee. He submitted that it was in the interest of the applicants, who had applied for the selection, that a fresh process of selection, in which petitioners should also be given opportunity to appear is held. Not only this, the merit list had not been prepared according to the procedure and was also not approved by the selection committee. He submitted that it was in the interest of the applicants, who had applied for the selection, that a fresh process of selection, in which petitioners should also be given opportunity to appear is held. In case they quality, they may be given preference otherwise the appointment of the petitioners by back door entry in the department would set a bad precedent. 11. Repelling the arguments made by the Counsel for the petitioners, it is submitted by the Standing Counsel that perusal of the order of the State Government dated 20th December, 2002 would demonstrate that the sole reason specified therein is a recital to the effect that the appointments have been made without finalizing the merit list and a perusal of the termination notice would demonstrate that various additional reasons mentioned therein are based upon a review of Selection Committee held on 2nd January, 2003. He submitted that such a procedure is wholly perverse. He further submitted that the objection raised in para 4 of the supplementary counter-affidavit to the effect that 1550 applications, which ought to have been included, had been rejected without scrutiny are more the reason for cancellation of illegal appointment. The two additional reasons mentioned in the supplementary counter-affidavit that the candidate Pravendra Kumar had originally been awarded 11 marks, which were altered in 18 marks is incorrect, inasmuch as marks had not been awarded by the Member of the Selection Committee in the form of numbers but had been awarded in coded alphabets for pre-determined value also show serious irregularities in the selection process. 12. It is not in dispute that a large number of candidates had applied against 7 posts and had appeared for selection. From the record it appears that there are serious irregularities in selection process and appointment to a few persons cannot be permitted to precipitate into permanent one as this would amount to give liberty and premium to such irregular and illegal selection. In the country like India where corruption is rampant in public life and endeavour should be made by every one to eradicate it. In the country like India where corruption is rampant in public life and endeavour should be made by every one to eradicate it. Honble President of India in addressing Advocates on role of Supreme Court called that there is attempt and chances of back door, the Court should be strict in not perpetuating these things. From the record there is no doubt that the Government has also initiated the proceedings against the erring officials, who had committed irregularity and manipulation in collusion with the candidates who have been selected. The apex Court in para 12 in the case of Union of India v. O. Chakradhar (supra) held that : "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-sheets 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 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 Boards decision to cancel the selection cannot be faulted with. The appeal, therefore, deserves to be allowed. " 13. In the present case it appears that all norms have been violated with impunity and, the illegality and irregularity in the process of selection are rampant, have been given go-bye and it is impossible to sort out right from wrong. Manipulations on a large number of case have been made in the selection and it cannot be said who is bona fide and who has been wronged. There may be some one who may have deserved selection, otherwise on merit. The decision of the State Government in cancelling the selection as a whole is justified. These circumstances appear to be justified and cannot be faulted with. 14. In the result, the writ petition fails and is dismissed with no order as to costs. The State Government may hold fresh selection directly according to the procedure prescribed, expeditiously preferably within a period of three months from the date of production of certified copy of this order. No fresh application is to be called and the selection be held from amongst the candidates who have already applied and were found eligible. Petition dismissed. .