JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Adarsh Bhushan, Advocate holding brief on behalf of Sri Ashok Khare, learned Senior Advocate and Sri Sushil Kumar, Advocate for the petitioners and learned Standing Counsel for the respondents. 2. All these matters involve similar questions of facts and law, hence as requested and agreed by learned counsel for the parties, are being decided by this common judgment. 3. For the purpose of brevity the facts have been taken from the Writ Petition No. 15910 of 2006 (Mohammad Rafi and others v. State of U.P. and others). 4. The order dated 28.02.2006 passed by Engineer-in-Chief, Irrigation Department, U.P. is under challenge. By means of the impugned order the respondent No. 2 has cancelled the qualifying examination of 2005 observing that pursuant to certain complaints certain irregularities were found in the qualifying examination held for promotion to the post of Ziledar. 5. The facts, in brief, giving rise to the present dispute are that the departmental Ziledari examination was notified by respondent No. 2 vide office order dated 20.05.2005. The Superintending Engineer 7th Division (Irrigation) pursuant thereto invited applications from eligible candidates. All the petitioners who were working as Seench Paryavekshak applied. The written test was held on 6.4.2005 in the forenoon and thereafter in the afternoon interview was also held. The result of successful candidates was declared by office order dated 20.5.2005 (Annexure-4 to the writ petition). It is said that all the petitioners qualified in the said test and their names are mentioned at Serial Nos. 126, 182, 183, 184, 185, 186, 193, 194, 197, 338 and 514 respectively (Annexure-4 to the writ petition). While the petitioners were awaiting for their promotion to the post of Ziledar, the impugned order has been passed by respondent No. 2 cancelling the entire selection. It is said that the selection has been cancelled wholly arbitrarily and without application of mind and without giving any opportunity to petitioner. 6. The respondents have filed a counter-affidavit stating that recruitment and conditions of service of the cadre of Ziledar is governed by the Irrigation Department Zildars’ Service Rules, 1963 (hereinafter referred to as the “1963 Rules”). It is a non-gazetted subordinate service. A strange defence has been taken by respondents for justifying the decision of cancelling the selection as is evident from para 15, 19 and 22 of the counter-affidavit which reads as under: “15. It is a non-gazetted subordinate service. A strange defence has been taken by respondents for justifying the decision of cancelling the selection as is evident from para 15, 19 and 22 of the counter-affidavit which reads as under: “15. That it is relevant to mention here that while holding and conducting the process of qualifying examination 2005 pertaining to promotion to the post of Ziledar in question several candidates were declared successful in spite of having crossed 50 years of their age in contravention of provision contained under Rule 3(a) of Rules given under APPENDIX ‘B’ of Rules-1963. It is further submitted that when the said qualifying examination was held there were only 44 vacancies and against which there were 38 eligible candidates and in view of which the qualifying examination was to be held only for six remaining vacancies. However against said available 6 vacancies the list of 611 successful candidates was declared in contravention of Rule-8(2) of Rules-1963 which provides that approved list shall be equal to the number of substantive vacancies to be filled during the course of the year. It is relevant to mention here that in the Irrigation Department there are only 600 sanctioned post of Ziledar and in view of which it was found that if the said approved list pertaining to qualifying examination 2005 in question is maintained, the other Amins who are working and who have not completed 7 years of service will never get chance to qualify the qualifying examination in future pertaining to promotion to the post of Ziledar’s unless and until the said list of 611 candidates is exhausted. 19. That is reply to the contents of paragraphs No. 7 to 20 of the petition it is submitted that while holding and conducting the process of qualifying examination 2005 pertaining to promotion to the post of Ziledar in question several candidates were declared successful in spite of having crossed 50 years of their age in contravention of provision contained under Rule 3(a) of Rules given under APPENDIX ‘B’ of Rules-1963. It is further submitted that when the said qualifying examination was held there were only 44 vacancies and against which there were 38 eligible candidates and in view of which the qualifying examination was to be held only for 6 remaining vacancies. It is further submitted that when the said qualifying examination was held there were only 44 vacancies and against which there were 38 eligible candidates and in view of which the qualifying examination was to be held only for 6 remaining vacancies. However against said available 6 vacancies the list of 611 successful was declared in contravention of Rule-8(2) of Rules 1963 which provides that approved list shall be equal to the number of substantive vacancies to be filled during the course of the year. It is relevant to mention here that in the Irrigation Department there are only 600 sanctioned post of Ziledar and in view of which it was found that if the said approved list pertaining to qualifying examination 2005 in question is maintained, the other Amins who are working and who have not completed 7 years of service will never get chance to qualify the qualifying examination in future pertaining to promotion to the post of Ziledar’s unless and until the said list of 611 candidates is exhausted and in view of the said illegalities and irregularities committed by the concerned committees, the qualifying examination 2005 pertaining to promotion to the post Ziledar’s has been cancelled by order dated 24.2.2006 and 28.2.2006 respectively by the respondents No. 1 and 2 of the petition in accordance with law for maintaining transparency in selection process as well as for protecting the large number of other working Amins of the department whose chance for appearing in qualifying examination in future would be barred due to existence of approved list in question. 22. That the contents of paragraphs No. 23 to 29 of the petition are not admitted as stated being highly misconceived and incorrect hence are denied. In reply there to it is submitted that while holding and conducting the process of qualifying examination 2005 pertaining to promotion to the post of Ziledar in question several candidates were declared successful inspite of having crossed 50 years of their age in contravention of provision contained under Rule 3 (a) of Rules given under APPENDIX ‘B’ of Rules 1963. It is further submitted that when the said qualifying examination was held there were only 44 vacancies and against which there were 38 eligible candidates and in view of which the qualifying examination was to be held only for 6 remaining vacancies. It is further submitted that when the said qualifying examination was held there were only 44 vacancies and against which there were 38 eligible candidates and in view of which the qualifying examination was to be held only for 6 remaining vacancies. However against said available 6 vacancies the list of 611 successful candidates was declared in contravention of Rule-8(2) of Rules 1963 which provides that approved list shall be equal to the number of substantive vacancies to be filled during the course of the year. It is relevant to mention there that in the Irrigation Department there are only 600 sanctioned post of Ziledar and in view of which it was found that if the said approved list pertaining to qualifying examination 2005 in question is maintained, the other Amins who are working and who have not completed 7 years of service will never get chance to qualify the qualifying examination in future pertaining to promotion to the post of Ziledar’s unless and until the said list of 611 candidates is exhausted and in view of the said illegalities and irregularities committed by the concerned committees, the qualifying examination 2005 pertaining to promotion to the post Ziledar’s has been cancelled by order dated 20.2.2006 and 28.2.2006 respectively by the respondents No. 1 and 2 of the petition in accordance with law for maintaining transparency in selection process as well as for protecting the large number of other working Amins of the department whose chance for appearing in qualify examination in future would be barred due to existence of approved list in question.” 7. The matter is admittedly governed by 1963 Rules which has been published in U.P. Gazette dated 14.3.1964 and in view of Rule 1(ii) takes effect from the date of notification. Meaning thereby it would be effective from 14.3.1964. 8. The entire recruitment on the post of Ziledar is confined to promotion of the persons working as Amin as is evident from Rule 5 which reads as under: “5. Source of recruitment.—Recruitment to the Service shall be made by promotion from amongst Amins working in the Department, who fulfill the qualifications prescribed in Rule 6.” 9. Rule 6 talks of eligibility for promotion, i.e., qualifications for promotion and reads as under : “6. Source of recruitment.—Recruitment to the Service shall be made by promotion from amongst Amins working in the Department, who fulfill the qualifications prescribed in Rule 6.” 9. Rule 6 talks of eligibility for promotion, i.e., qualifications for promotion and reads as under : “6. Eligibility for promotion.—No Amin shall be considered for promotion to the Service unless— (a) he is confirmed as Amin; (b) he has passed the qualifying examination prescribed in Rule 15; and (c) he has continuously worked as Amin in the Department for not less than seven years.” 10. The qualifying examination referred to in Rule 6(b) is governed by Rule 15, which reads as under : “15. Qualifying Examination.—No Amin shall be eligible for promotion to the Service unless he has passed a qualifying examination in such subjects and in such manner as may be prescribed in this behalf by the Governor from time to time: Provided that an Amin who possesses a certificate of having passed the two years’ course of the Agriculture College, Kanpur, or the Agricultural School, Bulandshahr or Gorakhpur or the Agriculture and Extension Diploma awarded by an institution recognised for this purpose by the Governor, shall be exempt from passing such part or parts of the qualifying examination, as may be prescribed by the Governor in this behalf. Note 1.—The names of the institutions which have been recognised by the Governor for the award of the Agriculture and Extension Diploma are mentioned in Appendix ‘A’. Nore 2.—The syllabus and the Rules for the qualifying examination are given in Appendix ‘B’.” 11. In furtherance of Note 2, Rule 15 of 1963 Rules the Appendix ‘B’ contains provisions for qualifying examination which reads as under: “Appendix ‘B’ [See Note (2) below Rule 15] Rules for the qualifying examination (1) The Chief Engineer shall appoint an examination Committee consisting of one Superintending Engineer, who will be the Chairman, one Executive Engineer and one Deputy Revenue Officer as members, to be nominated by him, to conduct the qualifying examination. (2) The examination will ordinarily be held once in a year, between November 1 and 15 on a date and at a time and place to be fixed by the Chairman of the Examination Committee. (2) The examination will ordinarily be held once in a year, between November 1 and 15 on a date and at a time and place to be fixed by the Chairman of the Examination Committee. (3) No Amins shall be eligible to take the qualifying examination unless he— (a) is confirmed as an Amin; (b) is below 45 years of age on the first day of November of the year in which the examination to be held; and (c) has put in five years’ continuous service as Amin in the Department; (d) has obtained the certificate prescribed in Form ‘A’ mentioned in this Appendix. (4) Each of the Executive Engineers in a circle shall, one month before the date of the examination, forward to the Superintending Engineer of the Circle the lists of Amins who are eligible for, and wish to take, the examination, along with the certificate in Form ‘A’. Each of the Superintending Engineers shall thereupon send to the Chairman of the Examination Committee a consolidated list of the candidates from different divisions of their circles. (5) The examination shall be both written and oral. The candidates shall be tested in the knowledge of Sri Moreland’s book entitled “The Agriculture of the United Provinces” and in Chapter VII, Section I, paragraphs 152-153 (rules 1 to 53, 82 and 83) and Chapter VIII of the Manual of Orders, Irrigation Department, Volume II (4th Edition). (6) The Examination Committee shall communicate the result of the examination to the Chief Engineer who will announce the result. Note 1.—An Amin who possesses a certificate of having passed the two years’ course of Agriculture College, Kanpur, or Agriculture School Bulandshahr or Gorakhpur or the Agriculture and Extension Diploma awarded by an institution mentioned in Appendix (A) shall not be required to pass in Sri Moreland’s book. Note 2.—To ensure that the right type of Amins are recruited to the Service, the Examination Committee shall also award marks to the candidates for their physique and personality and knowledge in revenue work at the time of the oral examination.” 12. A perusal of Appendix ‘B’ shows that the qualifying examination shall be held once in a year and that too in the first fortnight of November. The exact date and time is to be fixed by the Chairman of examination committee which is to be appointed by Chief Engineer under para 1 of Appendix ‘B’. A perusal of Appendix ‘B’ shows that the qualifying examination shall be held once in a year and that too in the first fortnight of November. The exact date and time is to be fixed by the Chairman of examination committee which is to be appointed by Chief Engineer under para 1 of Appendix ‘B’. The examination committee consists of one Superintending Engineer as Chairman, one Executive Engineer and one Deputy Revenue Officer. The Amins who are entitled to participate in the qualifying examination must satisfy certain eligibility conditions as provided in para 3 Appendix ‘B’ which says that he should be a confirmed Amin below 45 years of age and have put in five years continuous service and had obtained certificate prescribed in Form ‘A’ in the said appendix. The certificate contained in Form ‘A’ is in the following manner: “Form ‘A’ I have carefully examined . . . . . . . . . . . . . . . . Amin, and certify that— (1) he can observe discharges of channels with fair accuracy; (2) he can observe the heads on outlets and calculate the discharges therefrom in cusecs and of daily volume in foot acres; (3) he can ride sufficiently well to carry out the duties of a Ziledar and has passed the test in horse riding in the following items: (a) Saddling and briddling; (b) Mounting and dismounting; (c) Trotting; (d) Cantering; (e) Trotting without reins; (f) Trotting without stirrups; (g) Elementary stable management, such as folding a blanket, grooming and how to water and feed etc. Executive Engineer Note.—At the time of granting the certificate, special regard shall be paid to the character and integrity of the Amin.” 13. The Rule quoted in para 11(3)(a) of the counter-affidavit says that an Amin must be below 50 years of age to appear in a qualifying examination but when asked the learned Standing Counsel could not tell whether 1963 Rules after their enactment were ever amended so as to modify the age prescribed in the Rules published in the gazette. This Court has got a copy of the gazette notification and, therefore, has to rely on the correctness thereof in place of a photocopy of the Rules said to be published in a departmental book which has also been placed before this Court which contains several otherwise mistakes. 14. This Court has got a copy of the gazette notification and, therefore, has to rely on the correctness thereof in place of a photocopy of the Rules said to be published in a departmental book which has also been placed before this Court which contains several otherwise mistakes. 14. Be that as it may, what is important to notice is that the qualifying examination is wholly unconnected with the number of vacancies available at a particular point of time on the post of Ziledar. The qualifying examination is to be held every year at a fix tenure so that the eligible Amins may get requisite qualification which is necessary and make them eligible to be considered for promotion to the post of Ziledar as and when occasion arises. The list of Amins who have passed qualifying examination is to be prepared in order of seniority. Since the criteria for promotion under Rule 8 of 1963 Rules is seniority subject to rejection of unfit, therefore, an Amin who is junior, would have his turn for consideration for promotion based on seniority on the post of Amin and it would be wholly irrelevant as to whether the gradation list of Amins who have passed qualifying examination contains hundred or two hundred names or more since it only satisfy one of the eligibility condition to enable an Amin to be considered for promotion on the post of Ziledar. Mere passing of qualifying examination does not ensure the concerned Amin that he would be promoted to the post of Ziledar. The examination held for the purpose of satisfying eligibility condition by itself does not partake or become necessary part of procedure for promotion which is separate as provided in Rule 8 and reads as under: “8. Procedure for promotion.—(1) For purposes of recruitment by promotion under Rule 5, a selection on the basis of seniority subject to the rejection of the unfit shall be made from amongst the candidates whose names are included in the list prepared under Rule 7. Procedure for promotion.—(1) For purposes of recruitment by promotion under Rule 5, a selection on the basis of seniority subject to the rejection of the unfit shall be made from amongst the candidates whose names are included in the list prepared under Rule 7. (2) The Committee shall consider the cases of candidates included in the list prepared under Rule 7, and, after examining their character roll, shall select, in accordance with the criterion prescribed in sub-rule (1) above, the candidates who are considered suitable for promotion and arrange their names in a list, to be called list of approved candidates, in the same order of seniority in which they are included in the list prepared under Rule 7. The number of names in this approved list shall be equal to the number of substantive vacancies to be filled during the course of the year. (3) The Committee shall also draw up in the manner prescribed in sub-rule (2), a supplementary list of candidates considered suitable for promotion in officiating or temporary vacancies. The number of names in this list shall, as approximately as possible, be equal to the probable number of temporary or officiating vacancies expected to occur during the course of the year and they shall be arranged in the same order of seniority in which they are mentioned in the list prepared under Rule 7. (4) (a) if in any year a Superintending Engineer considers that any particular Amin is exceptionally brilliant to deserve promotion out of turn although he may not be senior enough in the list prepared under Rule 7 for being considered for promotion, the Chief Engineer may refer the name of such candidates to the Committee for consideration. (b) The Committee shall consider the case of the candidiate so referred to them, along with the cases of all Amins senior to him in the gradation list prepared under Rule 7 and may, if considered necessary, interview him. (c) In selecting an exceptionally brilliant candiate, the Committee shall take into consideration his competence, initiative, straight-forwardness, dependability, integrity, missionary zeal, effective supervision and efforts to eliminate corruption. (d) If after considering the cases of all candidates, the committee is satisfied that any candidate is of exceptional brilliance, it may include his name in either of the lists prepared under sub-rule (2) or sub-rule (3), as it may consider fit. (d) If after considering the cases of all candidates, the committee is satisfied that any candidate is of exceptional brilliance, it may include his name in either of the lists prepared under sub-rule (2) or sub-rule (3), as it may consider fit. The name of such a candidate shall be placed at the end of the list concerned, provided that if there are two or more such candidates, their names inter se shall be arranged in accordance with their inter se seniority in the list prepared under Rule 7. (5) The Committee shall forward to the Chief Engineer the lists prepared by it.” 15. Rule 9 talks of appointment and it also says that appointment to the post of Ziledar shall be made only from the list prepared under Rule 8, sub-rule (2) or sub-rule (4)(d) and not from the list prepared under Rule 7 which talks of list of eligible candidates and reads as under: “7. List of eligible candidates.—The Chief Engineer shall maintain a gradation list of all Amins who fulfil the qualifications prescribed in Rule 6. This list shall be maintained in accordance with the total length of continuous service as Amin (both temporary and permanent). In case two or more Amins possess the same length of service, their names shall be arranged according to their age.” 16. Two reasons have been assigned by respondents in the counter-affidavit to justify cancellation of entire selection. (1) The Amins who were overage allowed to participate in the qualifying examination; and (2) the list of candidates who have passed in the qualifying examination contains several hundreds of names though the number of vacancies at the relevant time were only 44 and 38 eligible candidates were already available. Therefore, only six vacancies were to be filled in. It appears that respondent No. 2 has completely misdirected and has misconstrued the list of eligible candidates prepared under Rule 7 based on the result of qualifying examination which has nothing to do with the number of vacancies on the post of Ziledar. In fact the list of qualifying candidates has to be prepared every year since the examination has to be held every year, i.e., once in a year. In fact the list of qualifying candidates has to be prepared every year since the examination has to be held every year, i.e., once in a year. It also means that if in 2001 when qualifying examination was held, hundred candidates passed which included the persons who are in the seniority list at serial No. 150, 151 or 160, such Amins who are junior, if have passed the qualifying examination while some senior Amins have not passed qualifying examination, obviously in the list prepared, those senior Amins would not find mention their names and in the eligibility list, the junior Amins shall be placed at higher position, i.e., just below the senior Amins who have passed qualifying examination. 17. But suppose, in the next qualifying examination, some senior Amins who earlier failed in qualifying examination, pass it, the eligibility list will be updated since it has to be maintained in order of seniority and the senior Amins who succeed in the subsequent year of qualifying examination will get restored their position among the junior Amins. And this process will go on. 18. Every person whose name find mention in the eligibility list under Rule 7 is not ensured to get promotion even if he has qualified the examination referred to in Rule 15. This is only one of the three conditions provided in Rule 6 for promotion. For actual promotion as and when the vacancies of Ziledar are available, the eligible Amins who satisfy all the three requirements under Rule 6, shall be considered by selection committee on the criteria of “seniority subject to rejection of unfit” and thereafter promotions shall be made. 19. Therefore, one of the consideration prevailed in the mind of respondent No. 2 to cancel selection that number of vacancies was only six, therefore, a list of 611 candidates ought not to have been prepared, is absolutely a misconstruction of Rules and, therefore, cannot be sustained. 20. Similarly, what he says that other Amins who are working and have not completed seven years of service, will never get a chance to qualify in future, is also misconceived inasmuch as Rule 7 clearly says that the list shall be maintained in accordance with total length of continuous service as Amin. 20. Similarly, what he says that other Amins who are working and have not completed seven years of service, will never get a chance to qualify in future, is also misconceived inasmuch as Rule 7 clearly says that the list shall be maintained in accordance with total length of continuous service as Amin. Meaning thereby as soon as an Amin passes qualifying examination, by virtue of seniority he will retain his position in the said list, and thereafter will be considered for promotion in his own turn on the criteria of “seniority subject to rejection of unfit”. Hence even this assumption is wholly non-est, misconceived and has to be rejected. 21. Now the only reason remain is that some of the candidates who were over 50 years of age, allowed to participate in the above selection. If that be so, those candidates could easily be identified and excluded. This reason by itself would not justify cancellation of entire examination. Only in such cases where the nature of irregularity is such that tainted selectees may not be identified or the alleged irregularity applies to all the candidates equally, only in such cases, cancellation of entire selection has been permitted and not otherwise. Where the alleged irregularity is such that the irregular or tainted selectees can be identified, the Courts have been very categorical in directing that in such cases the entire selection cannot be cancelled and only those who have been allowed to be selected irregularly, their selection may be cancelled. 22. In the case in hand, if certain candidates who were overage and not eligible to participate in the qualifying examination under Rule 15 read with Appendix ‘B’, those candidates were identifiable and only their examination could have been cancelled. That by itself would not justify cancellation of entire selection. 23. In this regard, it would be useful to refer, the exposition of law by Apex Court in Union of India and others v. Rajesh P.U. Puthuvalnikathu and another, AIR 2003 SC 4222 , laid down in para 6 of the judgment: “There was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all pervasively nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to other, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.” 24. In Union of India v. O. Chakradhar, 2002(3) SCC 146 the Apex Court in para 8 of the judgment said: “In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all-pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection in such cases it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committee also has its relevance.” 25. The only way out would be to cancel the whole selection. Motive behind the irregularities committee also has its relevance.” 25. Similar view has been expressed in Inderpreet Singh Kahlon and another v. State of Punjab and others, AIR 2006 SC 2571 (para 71 to 73) where the Court has held that decision to cancel the entire selections should not be taken in undue haste. Sufficient material should be collected to be gathered through an investigation held in fair and impartial manner. The illegalities found must go to the route of the matter vitiating the entire selection. The appointees in majority must be found to be part of fraud or fraudulent activities so as to cancel the entire selection. For the misdeeds of some candidates, honest and good ones should not suffer enmass cancellation. To the extent it is possible, care must be taken by the authorities concerned to some such identifiable, good, honest and valid selectees. 26. This Court also has followed the same view in State of U.P. and others v. Pawan Kumar Singh and others, 2009(3) ADJ 166 (DB); Hare Ram and others v. State of U.P. and others, 2009(2) AWC 1594 ; Ram Abhilash Maurya and others v. State of U.P. and others, 2009(2) AWC 1672 ; and Ram Prakash Singh and others v. State of U.P. and others, 2009(3) AWC 2333. 27. In the case in hand no such attempt has been made by respondent No. 2. In a most abrupt and irrational manner, he has cancelled the entire qualifying examination wherein 611 candidates were declared successful. 28. In the result, all the writ petitions are allowed. The impugned order dated 28.2.2006 is hereby set aside. However, this judgment shall not preclude the respondents from taking appropriate decision in respect to such Amins who were ineligible to appear in qualifying examination, 2005, by passing a fresh order in accordance with law. On the vacancies of Ziledar the eligible petitioners who validly qualify qualifying examination 2005 shall be considered for promotion in accordance with 1963 Rules. The petitioners shall also be entitled to costs which is quantified to Rs. 5000/- for each set of petition. —————