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2011 DIGILAW 2847 (ALL)

BRIJESH KUMAR BHARTI v. STATE OF U. P.

2011-12-15

PANKAJ NAQVI, SHEO KUMAR SINGH

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JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel appearing for the petitioner and Shri Neeraj Upadhaya, learned Additional Chief Standing Counsel appearing for the respondents. 2. By means of the present petition the petitioner has challenged the order dated 13.9.2006 passed by respondent No. 3 whereby the said respondent has cancelled the selection proceedings of the approved candidates, pursuant to the report of the Secretary/Regional Ayurved and Unani Officer, Ballia dated 20.4.2006 and has further directed that in respect of District Ballia the vacant positions of medical officers in the Government Ayurvedic and Unani Hospitals be filled up on contract basis on the basis of latest Government Order. 3. As large number of posts of Medical Officer (Ayurvedic, Unani and Homeopathic) were substantively vacant in the State hence, to tied over the crisis being faced in various government hospitals on account of non-appointment against substantive vacancies, a Government Order dated 3.2.2005 was issued, which permitted appointment of Medical Officer on contract basis., Copy of the Government Order dated 3.2.2005 is Annexure 1 to the writ petition. 4. The aforesaid G.O. permitted filling up of 393 posts of Medical Officers (Community Health), 46 posts of Medical Officer (Ayurvedic), 29 posts of Medical Officer (Unani) and 23 posts of Medical Officer (Homeopathic) on contract basis. The said G.O. Provided an elaborate procedure for conducting the selection process to the recruitment of the aforesaid Medical Officer’s on contract basis. The selection committee was to be headed by the District Magistrate, as Chairman, and the Chief Medical Officer concerned, as Member, and Regional Ayurvedic and Unani Officer/District Homeopathic Officer, as Member Secretary. Apart from the said persons the District Magistrate was authorised to appoint two officers namely an officer representing the Scheduled Caste and Other Backward Class respectively in the selection committee. On the basis of recommendation of the selection committee contract appointment was to be offered. The said contract appointment was to remain valid for a period of one year, which was extendable for a total period of three years. 5. Pursuant to the aforesaid G.O. Dated 3.2.2005, the Regional Ayurvedic and Unani Officer, Ballia issued an advertisement dated 8.4.2005, which was published in the newspapers ‘Aaj’, ‘Desh ki Aan’ and ‘Anchalik Swar’ dated 9.4.2005. The said contract appointment was to remain valid for a period of one year, which was extendable for a total period of three years. 5. Pursuant to the aforesaid G.O. Dated 3.2.2005, the Regional Ayurvedic and Unani Officer, Ballia issued an advertisement dated 8.4.2005, which was published in the newspapers ‘Aaj’, ‘Desh ki Aan’ and ‘Anchalik Swar’ dated 9.4.2005. The said advertisements are on record of the writ petition as Annexure 2-A, 2-B and 2-C. In the aforesaid advertisement applications were invited for filling up five posts of Medical Officer (Community Health), four posts of Medical Officer (Ayurvedic) and one post of Medical Officer (Unani) in the District Ballia. 6. The petitioner, who claims himself to be a bachelor of Ayurvedic (Medicine and Surgery), and being otherwise fully eligible and qualified applied in pursuance of the said advertisement for the post of Medical Officer (Community Health). He faced the interview on 21.3.2005. The Regional Ayurvedic and Unani Officer, Ballia had also requested the District Magistrate, Ballia to be present on 23.4.2005 for conducting the interview or nominate his nominee for presiding the selection committee. Similarly, a letter dated 21.4.2005 was also sent to the District Magistrate, Ballia with a request to appoint his nominee belonging to Scheduled Caste and Other Backward Class for participating in the meeting of the selection committee and that on the letter dated 21.4.2005, the District Magistrate, Ballia on 22.4.2005 nominated Shri S.C. Chaudhary, as representative from Scheduled Caste candidate and Shri V.P. Gupta, as representative from Other Backward Class respectively, for participating in the selection committee. Even though the meeting of the selection committee took place on 23.4.2005 in which the petitioner is said to have participated, but for the reasons best known, the outcome of the selection process was not known to the petitioner and the matter remained pending. 7. Subsequently, it appears that a circular dated 1.3.2006 was issued by the Director, Ayurvedic and Unani Services U.P., Lucknow directing forthwith the completion of proceeding for filling up the vacant post of Medical Officers and pursuant thereto a select list and merit list was prepared in pursuance of the aforesaid selection, which is said to have been approved by the District Magistrate, Ballia on 20.7.2006. This select list, as approved by the District Magistrate, Ballia, was also published in the newspapers ‘Desh ki Aan’ and ‘Anchalik Swar’ on 21.7.2006. This select list, as approved by the District Magistrate, Ballia, was also published in the newspapers ‘Desh ki Aan’ and ‘Anchalik Swar’ on 21.7.2006. In the said select list name of the petitioner was shown at serial No. 6. Based upon the aforesaid result the Chief Medical Officer, Ballia issued an order of appointment dated 1.8.2006 granting appointment to the petitioner as Medical Officer (Community Health) on contract basis. The order of appointment is Annexure 10 to the writ petition. Accordingly, the petitioner joined his duties on 2.8.2006. On 13.9.2006, the District Magistrate, Ballia proceeded to pass the order cancelling the selection and appointment of Medical Officers in District Ballia. The petitioner preferred a representation dated 4.12.2006 before the District Magistrate, Ballia praying for revocation of the order of cancellation of selection and appointment. The aforesaid representation went unattended, hence the present writ petition. 8. A counter-affidavit has been filed on behalf of the respondents wherein it is stated that there is no evidence on record available with the respondents to suggest that the selection committee had made any recommendation in the selection proceeding; the publication in the newspapers dated 21.4.2006 is also manipulated one, as they are local newspapers and do not have wide circulation. 9. It is further alleged in the counter-affidavit that neither is there any approved select list on record nor is there any report of the selection committee and that all of sudden when the District Magistrate was not available in his office, the concerned file was placed before the officiating District Magistrate, who put his signature and thus, the entire selection process is shrouded with suspicion and mystery, hence it was in the fitness of things that the select list has rightly been cancelled. 10. The submission of Shri Ashok Khare, learned Senior Counsel is that as all due formalities, as contemplated in the aforesaid G.O. dated 3.2.2005, were duly complied with and the petitioner being fully qualified and eligible for grant of contract appointment on the post of Medical Officer (Community Health), hence the respondents could not have cancelled the select list of the approved candidates without adhering to the principles of natural justice. 11. 11. Per contra, the submission of Shri Neeraj Upadhaya, learned Additional Chief Standing Counsel is that the impugned order dated 13.9.2006 clearly records various illegalities, which are sufficient enough to vitiate the entire selection process, and, therefore, the respondents committed no illegality in cancelling the select list of the approved candidates, when the illegality was writ large on the face of record itself. 12. It is settled position in law that any selection process should satisfy the twin requirements of Articles 14 and 16 of the Constitution of India before the same may be held to be valid. A perusal of the impugned order dated 13.9.2006 highlights the following illegalities in the selection process, which ultimately led to cancellation of select list of the approved candidates : (i) From the impugned order dated 13.9.2006 and the averments made in the counter-affidavit it is clearly evident that there was no approval of the competent authority for initiating the aforesaid recruitment process and for inserting an advertisement for the same in the alleged newspapers and for constituting a selection committee. In fact, there is neither any note nor comment of the competent authority, which could even remotely suggest that the competent authority/District Magistrate had ever approved the initiation of the selection process. (ii) In terms of the G.O. dated 3.2.2005 the aforesaid vacancies had to be published in two prominent newspapers, whereas, in fact, the same was published, apart from ‘Dainik Aaj’, in two local newspapers i.e. ‘Desh ki Aan’ (Azamgarh) and ‘Anchalik Swar’ (Ballia). It is stated in the impugned order itself that ‘Desh ki Aan’ (Azamgarh) and ‘Anchalik Swar’ (Ballia) are only local papers, which do not have any wide circulation. The averment with regard to this fact has also been made in paragraph 13 of the counter-affidavit. The petitioner while controverting the averment made in paragraph 13 of the counter-affidavit has simply made a bald denial of the contents of para 13 of the counter-affidavit, but has not brought any material on record to indicate that the alleged local newspapers have wide circulation. The petitioner while controverting the averment made in paragraph 13 of the counter-affidavit has simply made a bald denial of the contents of para 13 of the counter-affidavit, but has not brought any material on record to indicate that the alleged local newspapers have wide circulation. In these circumstances, it was a case of flagrant violation of the provisions of Articles 14 and 16 of the Constitution of India, as it has been repeatedly held by the Hon’ble Apex Court that public posts have to be advertised in prominent newspapers so that public in general may respond to an advertisement for the vacancies published in the said newspapers. (iii) The selection process is also shrouded with mystery inasmuch as the letter of the Regional Ayurvedic/Unani Officer dated 22.4.2005, which is addressed to the members of the selection committee intimating therein that pursuant to the letter of the District Magistrate dated 23.4.2005, they have been nominated as members of the selection committee. This letter is Annexure 6 to the writ petition. It is intriguing that the letter dated 23.4.2005 of the Regional Officer makes reference of the letter dated 23.4.2005 of the District Magistrate when the interview itself was to be held on 23.4.2005. (iv) The impugned order also records that even though the interview was held on 23.4.2005, but the same was never approved by the members of the selection committee. In fact, after a period of almost one year and three months from the date of selection, when the regular incumbent/District Magistrate was on leave, the Regional Officer under his signature and without obtaining approval/report from the selection committee prepared his report and submitted the same to the In-charge District Magistrate requesting him that a merit list has been prepared as per G.O. dated 3.2.2005. Obtaining an approval from the officiating District Magistrate on 20.4.2006, in respect of the interviews held on 23.4.2005 and that too in respect of contract appointments for which there was an imminent urgency after a period of one year and three months, from the date of interview makes the entire selection process highly dubious and suspicious. Moreover, order dated 13.9.2006 itself states that on the facts of the present case the In-charge District Magistrate had no power for taking any final decision in such matters. Moreover, order dated 13.9.2006 itself states that on the facts of the present case the In-charge District Magistrate had no power for taking any final decision in such matters. A specific averment has been made with regard to these illegalities in paragraph 22 of the counter-affidavit, which have not been specifically denied in the rejoinder-affidavit. 13. Accordingly, in view of the large number of irregularities having been noticed in the aforesaid selection process, respondent No. 3 rightly cancelled the entire selection process and, therefore, the petitioner, on the facts of the present case, cannot claim denial of the principles of natural justice. 14. No sooner the regular incumbent i.e. District Magistrate assumed the charge and the aforesaid illegalities having been brought to his notice, he immediately proceeded to pass the impugned order on the basis of the report dated 20.4.2006. 15. From the aforesaid facts, it is clearly evident that the entire selection process was vitiated from the word ‘go’ and, therefore, respondent No. 3 committed no illegality in cancelling the entire select list and the petitioner cannot stake a claim on the basis of said selection. 16. We are not oblivious of the fact that the impugned order dated 13.9.2006 itself states that after the cancellation of the select list a fresh exercise be undertaken for making contract appointments on the post of Medical Officer in Government Ayurvedic and Unani Hospitals. 17. In the result, the writ petition fails and is accordingly dismissed. No order as to costs. —————