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Allahabad High Court · body

2009 DIGILAW 2711 (ALL)

AJAY KUMAR MISHRA v. STATE OF U. P.

2009-07-30

SUNIL AMBWANI

body2009
JUDGMENT Honble Sunil Ambwani, J.—Heard Shri Ashok Khare, Sr. Advocate assisted by Shri V.D. Shukla for the petitioner. Learned Standing Counsel appears for the respondents. 2. The petitioners applied for selections as ‘Safai Karmis’ in ‘general category’, in response to the advertisement dated 16.6.2008. They were subjected to cycle test/ safai test and interviews on different dates and were called to appear in a test on 4.10.2008 at Vibhuti Narain Government Inter College, Gyanpur. The selection process concluded on 4.10.2008. A final select list was prepared by the district authorities. On 5.11.2008 the State Government passed an order, on the recommendation of the District Magistrate, cancelling the entire selections on the complaints made against the selection process. The State Government directed fresh selection to be held, excluding the officers, included in the earlier selection committees. By this writ petition the petitioners have questioned the validity of the order dated 5.11.2008 of the State Government cancelling the entire selections and the notification dated 3.11.2008 issued by the District Panchayat Raj Adhikari, Sant Ravi Das Nagar readvertising 1264 posts of ‘Safai Karmis’ to be selected in accordance with the procedure provided in the Group-D Employees Service Rules, 1985 (the Rules), as amended from time to time. 3. Shri Ashok Khare, learned counsel for the petitioner submits that the State Government did not have authority under the Rules to cancel the selections held in accordance with the statutory Rules. The order has been passed without application of mind on the report of the District Magistrate, which was wholly motivated and based on surmises and conjectures. The committees constituted by the District Magistrate had maintained transparency and impartiality in selections. The material on the basis of which selection were cancelled was not sufficient to arrive at the conclusion to cancel the selection process. 4. In the counter affidavit of Shri K.P. Singh, District Panchayat Raj Officer, Sant Ravi Das Nagar, Bhadohi it is stated in the beginning, in para 3 (b) that the impugned advertisement is dated 3rd December, 2008, and not 3rd November, 2008. An advertisement was issued on 16.6.2008 inviting application for recruitment of 1264 posts of Safai Karmis in Distt. Sant Ravi Das Nagar, Bhadohi, followed by a corrigendum dated 9.7.2008. An advertisement was issued on 16.6.2008 inviting application for recruitment of 1264 posts of Safai Karmis in Distt. Sant Ravi Das Nagar, Bhadohi, followed by a corrigendum dated 9.7.2008. The posts were created by Government Orders dated 1.3.2008, 11.4.2008 and 6.6.2008, to be filled up in accordance with Group-’D’ Employees Service Rules, 1985, for sanitation and to maintain cleanliness for the health of general public in villages from amongst persons, who had knowledge and experience in cleaning of roads and drains etc., one of the basic eligibility for appointment. 5. The District Magistrate constituted two selection committees, consisting of three members each including Shri R.D. Ram, Distt. Employment Officer, Shri N.K. Singh, Distt. Panchayat Raj Officer as Chairmen of these selection committees. It is stated in para 3 (e) to (h) : “(e) That on 29.9.2008 the District Magistrate made a surprise inspection. At the time of inspection the Chairman as well as the members of Board No. 2 (selection committee No. 2) were present and the number sheets were in process of being sealed. During the course of inspection 10 slips and two note books containing roll numbers of candidates with description of certain amounts were recovered from the pocket of the Chairman of Board No. 2 i.e. Shri N.K. Singh, District Panchayat Raj Officer. Similarly a list was recovered from the member of the Board Shri P.C. Prasad which also contained various roll numbers. Statement of Shri N.K. Singh was recorded in presence of officers who admitted the slips etc., to be in his handwriting and also that the same have been recovered from his pocket. Consequently the District Magistrate appointed the District Development Officer as Enquiry Officer to enquire into the matter and to submit his report. The enquiry was conducted by the Enquiry Officer who submitted his report dated 3.10.2008 annexing therewith various documentary evidences which clearly revealed commission of serious illegalities at large scale in selection process and taking of money from selection etc. The Enquiry Officer also came to the conclusion that the entire selection process/interview was neither transparent nor impartial. He also noted the fact based on documentary evidences that marks awarded initially were changed by increasing the marks substantially so as to select particular candidates. The Enquiry Officer also came to the conclusion that the entire selection process/interview was neither transparent nor impartial. He also noted the fact based on documentary evidences that marks awarded initially were changed by increasing the marks substantially so as to select particular candidates. After receipt of the aforesaid Enquiry Report dated 3.10.2008 the District Magistrate considered the same and referred the matter to the State Government alongwith Enquiry Report vide D.O. Letter dated 7.10.2008. True copy of the statement on oath of Shri N.K. Singh, District Panchayat Raj Officer dated 29.9.2008 bearing acknowledgment/signature of certain other officers/members of the selection committee, true copy of the Enquiry Report dated 3.10.2008 along with its annexures and true copy of the letter of District Magistrate dated 7.10.2008 referring the matter to the State Government are annexed herewith and are marked as Annexure CA-3, CA-4 and CA-5 respectively to this Counter Affidavit. (f) That in view of the facts found as aforementioned, the District Magistrate changed the constitution of the selection committee vide orders dated 30.9.2008, 1.10.2008, 3.10.2008 and 4.10.2008 (collectively marked as Annexure 9 to the writ petition). (g) That since serious illegalities and irregularities at large scale in the selection process were evidence on record and as such the number sheets prepared by selection committees upto 4.10.2008 were sealed and kept in the double lock of treasury. The final list/merit list was neither prepared nor has been prepared so far as and as such the allegation of the petitioners that their names appear in the select list is wholly baseless. (h) That considering the serious illegalities and irregularities committed in the selection process of Safai Karmis, the State Government cancelled the entire selection process and directed the District Magistrate vide letter dated 5.11.2008 (Annexure 12 to the writ petition) to constitute fresh selection committee for selection in accordance with law. The State Government further directed that none of the officers who were either the Chairman or member of the selection committee should be kept in the new selection committee/Selection Board. Pursuant to the aforesaid direction the impugned Advertisement dated 3.12.2008 (Annexure 13 to the writ petition) has been issued which has been wrongly alleged to be the Advertisement dated 3.11.2008. It is further relevant to mention that the intimation of cancellation of selection process was pasted on the Notice Board of Collectorate and Vikas Bhawan.” 6. Pursuant to the aforesaid direction the impugned Advertisement dated 3.12.2008 (Annexure 13 to the writ petition) has been issued which has been wrongly alleged to be the Advertisement dated 3.11.2008. It is further relevant to mention that the intimation of cancellation of selection process was pasted on the Notice Board of Collectorate and Vikas Bhawan.” 6. Learned Standing Counsel submits that the District Magistrate had in her inspection, noticed gross irregularities in selections. The Chairman of Board No. 2 Shri N.K. Singh and the member Shri P.C. Prasad were found to have a number of slips in their handwriting and money in their possession. The report of the Committee constituted by the District Magistrate clearly established that the Chairman and the members were accepting money and recommendations for selections. The details of these slips have been annexed to the counter affidavit and the report of Shri R.P. Misra, Distt. Panchayat Raj Officer is enclosed. The enquiry report refers to 10 slips and two note books bearing 236 roll numbers with some mobile phone numbers and 3 doubtful numbers, written twice over. About 70 roll numbers were written twice. The Enquiry Officer examined 169 roll numbers out of which 6 were in SC and 47 in OBC category. Out of these 146 roll numbers written on slips and notebook did not mention any category. The Enquiry Officer examined all the roll numbers in all the categories in which they were mentioned, and examined 116 roll numbers in all categories and found that out of these 169 candidates, the marks of 109 candidates in the interviews upto 29.9.2008 were tampered and were increased. The marks of roll number 1611 was increased by three marks, but the original marks given by the Committee were not mentioned. Out of 169, 67 in SC and 65 in OBC (total 132) were given sufficient marks to get them selected and that marks of 53 OBC and 5 SC candidates were increased to such an extent that they should be selected. The enquiry officer found that in the first committee marks of 24 were changed by the first member, 17 by the second member and 33 by third member and in the second committee marks of 37 candidates were changed by first member, 13 by second member and 31 by the third member respectively in their lists. These marks were increased to ensure their selections. These marks were increased to ensure their selections. It was also found by the enquiry officer that the sheets of paper on which marks of interviews were recorded did not bear the signature of Chairman and the concerned member of the Committee. In most of these sheets only last pages were signed, and that all the pages did not bear the signature of the members, nor the cuttings or overwriting were signed. The validity of the list had thus become doubtful. 7. The enquiry officer also found that the names of the candidates, which were given higher marks were either ticked or underlined on the broad sheet to ensure that they were given sufficient marks to get selected. On these irregularities it was reported that large scale favouritism and corrupt practices were adopted in the interviews, on which the selections cannot be said to be transparent, impartial and just. The District Magistrate submitted a report of these irregularities and corrupt practice to the State Government on which the selections were cancelled. 8. Shri Ashok Khare, learned counsel appearing for the petitioners would submit that all the petitioners belong to general category. Out of 1264 posts of Safai Karmis 632 posts were in the general category and that against these posts there were only 315 applicants, and that 225 appeared in the selection process on 4.10.2008. There was no allegation against general category candidates nor any material was found to cancel their selections. The slips, the note book, and the tampering of the broad sheets in the marks were all related to scheduled castes and other backward class candidates. The petitioners were not at fault and were not affected by the allegations in the complaints and the material found in the enquiry. He submits that if selection process was found to be tainted, the District Magistrate was required to see the effect of the material collected and the findings of the enquiry officer in recommending to cancel the selections. The District Magistrate was required to consider whether the material found and the report of the enquiry officer could be related to the selection of general candidates and whether the selection of the general candidates could also be cancelled on the same grounds. 9. The selections were held for 1264 posts. Out of these 50% posts were reserved and the remaining 50% were to be filled up by general category candidates. 9. The selections were held for 1264 posts. Out of these 50% posts were reserved and the remaining 50% were to be filled up by general category candidates. A perusal of the counter affidavit and the material recovered from the Chairman and the members of the Selection Committee and the report of the District Development Officer appointed by the District Magistrate as Enquiry Officer would show, that on 29.9.2008 in a surprise inspection made by the District Magistrate, he found 10 slips and 2 note books in the possession of the Chairman of Committee No. 2, Shri N.K. Singh, Distt. Panchayat Raj Officer and a member of the Board. They admitted the slips to be in their own handwriting and its recovery from their pockets. The enquiry officer, confined the enquiry to the 239 roll numbers written on these slips and note books. Out of these 70 roll numbers were repeated on these slips and thus there were a total of 169 roll numbers. The 116 roll numbers did not indicate their categories, and thus the enquiry officer enlarged the area of his enquiry by examining the 116 roll number in all the categories and found that out of these 169 roll numbers there were 67 SC and 65 OBC, total 132 candidates, the marks were increased, so that they are selected and out of these 53 candidates belong to OBC or SC. The marks of 37 OBC and 5 SC candidates totalling 42 candidates were again increased to such an extent that they should get selected. The marks of a total number of 109 candidates were revised, the details of which is given in the enquiry report. 10. The submission that out of 632 posts in the general category, there were only 315 applicants and that 225 appeared in the selection process of 4.10.2008 is not founded upon the pleading in the writ petition. The petitioners have not stated in the writ petition, or in the rejoinder affidavit that there were only 315 applicants for 632 general category posts appeared for selections. 11. The enquiry report of the District Development Officer, Sant Ravi Das Nagar refers to 10 slips and two note books bearing 236 roll numbers. Out of 70 roll numbers were written twice over and that 146 roll numbers did not mention the category of the candidates. 11. The enquiry report of the District Development Officer, Sant Ravi Das Nagar refers to 10 slips and two note books bearing 236 roll numbers. Out of 70 roll numbers were written twice over and that 146 roll numbers did not mention the category of the candidates. The enquiry officer examined 116 roll numbers in all the categories. It was found that out of 169 candidates the marks of 109 candidates in the interviews were tampered and were increased. Out of 169, 67 in SC and 65 in OBC category were given sufficient marks to get them selected and that marks of 53 OBC and 5 SC candidates were increased. The enquiry officer has not mentioned anything about the general category candidates in his report, but his report does not show that only reserved category candidates were the beneficiaries of the irregularities. The irregularities committed in the selection process, do not point only towards the reserve category candidates. The irregularities were so mixed up that the selection of general category candidates may be separated and saved. 12. The District Magistrate in her report dated 7.10.2008 to the Commissioner, Vindhyachal Region, Mirzapur forwarded the opinion of the enquiry officer, along with her recommendations that interviews were not transparent and that money was exchanged in manipulating the marks of large number of candidates. The boards assembled, half a hour before the interviews every day, after 30.9.2008. She recommended the cancellation of the entire selections. 13. The irregularities in this case were practiced on such a large scale that it cannot be said that the general category candidates did not benefit or that they can be separated from the reserved category candidates, in declaring the results. The material on record does not support the submission that the tainted candidates can be separated from the candidates, who did not influence increase of marks for ensuring their selections. 14. The select list was not published and thus the petitioners have not acquired any rights to be selected. In State of M.P. v. Sanjay Kumar Pathak, (2008) 1 SCC 456 , the Supreme Court held that even though selection process was completed no appointment can be made in the absence of select list and that the State Government is not bound to appoint and select candidates. In State of M.P. v. Sanjay Kumar Pathak, (2008) 1 SCC 456 , the Supreme Court held that even though selection process was completed no appointment can be made in the absence of select list and that the State Government is not bound to appoint and select candidates. The judgment in Inder Preet Singh v. State of Punjab, (2006) 11 SCC 356 , cited by the petitioners is also not applicable to the facts of the case. Here the corrupt practices adopted by the selection committees were so mixed up that it is not possible to separate the tainted from those, who may be honest and good candidates. It will thus be in the interest of all concerned that the selections are held afresh. 15. The District Magistrate is the appointing authority of ‘Safai Karmis’ in the Rules of 1985. The State Government as employer of all the government servants has overall responsibility and accountability to maintain transparency and fairness in the selections, and thus it cannot be said that the State Government did not have the authority to cancel the selections. 16. The writ petition is dismissed. The interim order dated 18.12.2008 is discharged. ———