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2011 DIGILAW 977 (JHR)

State of Jharkhand v. Ravi Kumar Kujur

2011-11-08

JAYA ROY, PRAKASH TATIA

body2011
ORDER 1. These appeals have been preferred against the order dated 08.07.2011 passed by the learned Single Judge in W.P.(S) Nos. 5885, 4332, 6167 and 6672 of 2010 as those writ petitions preferred by the four writ petitioners have been allowed by the impugned order. 2. Learned counsel for the appellant-State submitted that on receipt of the complaint, Annexure-A submitted with the counter affidavit filed by the State in the writ petition, an enquiry was conducted wherein large number of illegalities and irregularities were found. Copy of the enquiry report has been placed on record along with Annexure-A, which is dated 26.5.2010, wherein it has been opined that in the process of selection and appointment, that too, for the post of Officers in the State, namely, Jharkhand State Police Service, Jharkhand State Finance Service, Jharkhand State Cooperative Service, Jharkhand State Administrative Service, large number of illegalities and irregularities as well as, in mark sheets etc., several interpolation and manipulation were made. Several candidates' number were reduced, and several candidates' numbers increased. 3. We perused the enquiry report and found the facts mentioned in the enquiry report to be a very glaring. The enquiry officer opined that it was a clear case of cheating, forgery, well planned criminal conspiracy and misuse of power and there was large scale corruption in the entire selection process. Not only this, but there is clear finding that it may be because of some illegal monetary benefits. Then, it was opined that a case under Sections 420, 423, 427, 467, 468, 469, 471, 477-A, 120-B, 109/201 I.P.C. read with Section 13(2) with Section 13(1)(d) (e) of Prevention of Corruption Act, 1988 is made out and permission may be granted for lodging the F.I.R. against the accused named in the report. Learned counsel for the State submits that thereafter F.I.R. has already been lodged. 4. From the facts, we found that after this report, appointment of only 19 candidates were cancelled, vide order dated 10.08.2010 and like orders. According to the learned counsel for the appellant-State, these orders are not stigmatic orders and therefore, could not have been set aside because those appointees were only on probation. Learned counsel for the appellant, on asking, submitted that except these 19 candidates, all are in service. 5. According to the learned counsel for the appellant-State, these orders are not stigmatic orders and therefore, could not have been set aside because those appointees were only on probation. Learned counsel for the appellant, on asking, submitted that except these 19 candidates, all are in service. 5. We want to know from the State that in case where the State found after inquiry that there were large number of manipulation, interpolation, wrong constitution of Committees and relevant records were, either not given to the Enquiry Officer or were never in existence and when the persons, who were members of the selection process, failed to submit their requisite declaration with respect to participation of their relatives-candidates in the selection process and it was found that in the process of selection relatives of candidates were Members and where there is allegation of taking money by the officers, abuse of their power with specific instance given in detail in the report, under what circumstances, State had not cancelled the entire selection and had passed order with respect to only 19 candidates. 6. It is also pertinent to mention here that the Enquiry Officer has also clearly stated in his enquiry report with respect to the conduct of the persons working in Jharkhand State Public Service Commission, who, on demand by the Enquiry Officer, tried to avoid submitting the record and on insistence, successfully avoided to submit the records by taking the plea of “official secret” even in the matter of such enquiry. As per the fact mentioned in the enquiry report, it was informed to the Enquiry Officer, vide letter dated 28.07.2010, that for constitution of the interview Board, no document is available with the Jharkhand State Public Service Commission. It appears that the Enquiry Officer could trace out the names of seven experts, for which he opined that all seven persons were appointed in violation to the Jharkhand Lok Seva Aayog Rules, 2002. Not only this, to conduct the examination, it was projected that one Dr. Gopal Singh was authorized and by his order, the experts were selected and appointed, whereas in respect to this fact, no record was available with Jharkhand State Public Service Commission. It appears from the enquiry report that sample test was conducted with respect to various answer books of various subjects. 7. Gopal Singh was authorized and by his order, the experts were selected and appointed, whereas in respect to this fact, no record was available with Jharkhand State Public Service Commission. It appears from the enquiry report that sample test was conducted with respect to various answer books of various subjects. 7. Be that as it may be, the enquiry was not with respect to the particular candidate and it appears that the enquiry was with respect to the entire process of selection and prima-facie, we are of the opinion that enquiry was against the entire selection process with allegation of corruption, mal-practice, favouritism, manipulation and forgery and we are of the considered opinion that in the process of selection, forgery, manipulation, interpolation and taking bribe is normally not from all the candidates and when large scale favoritism, illegal gratification or even substantial number of such activities are found, then in such circumstances the entire process should have been cancelled. 8. We are also having doubt, that the impugned order may have been passed so as to project that cases against certain individuals have been made out and, therefore, they only have been punished and the Government acted fairly to remove those persons who got appointment through illegal mode and manner but in our opinion, it may also be a case of protecting other persons for whom no order has been passed and no action has been taken and even if those 19 persons individually, (individually against whom no enquiry was conducted, nor they were heard), may be guilty and were, therefore, removed, that does not make the entire selection process clean and pure which was in the hands of such type of persons who can appoint persons in the State Administrative Service in all fields like State Administrative Service, State Police Service, State Cooperative Service, State Finance Service so as to permit them to eat out the entire State. 9. 9. We are of the considered opinion that it is a fit case for giving notice to the State Government as well as to all selected candidates as to why their selection, as a whole, may not be cancelled and therefore, issue notice to the State Government to show cause as to why the selection process started by issuing advertisement No. 07 of 2005, in pursuance of which appointments have been given by the State Government and have been continued in spite of the enquiry report referred to above and in spite of the fact that State itself has acted on that report and lodged F.I.R, be not cancelled. 10. Notices may also be issued to all the selected candidates who have been selected and given appointment in pursuance of the said advertisement. The State shall submit notices for all those candidates within two weeks from today with their latest address and notices be given dasti to learned counsel for the State and it will be the responsibility of the State Government to serve those selected candidates/officers through their own means to avoid any delay. 11. The above notice is also given to the writ petitioners so that all selected candidates including the writ petitioners may show cause. Learned counsel for the writ petitioners accept notice on behalf of the writ petitioners. Therefore, there is no need to issue notices to the writ petitioners. 12. The State is directed to also submit status report with respect to criminal case, whether investigation has been completed or not and if completed, whether charge sheet has been filed and if investigation has not been completed, why it has not been completed? 13. Heard learned counsel for the respondents-writ petitioners on the question of stay of the impugned order. Learned counsel for the respondents-writ petitioners submitted that no investigation was conducted but enquiry was conducted only by the officer and that report is already referred by us. 14. Be that as it may, according to the learned counsel for the writ petitioners, the order is clearly a stigmatic one which is apparent from the Annexure-22 of the writ petition and in that note, the decision was taken that the order may be issued in such a manner that it may not look a stigmatic order so that it may not be challenged in Court. Learned counsel for the respondents, relying upon decisions of the Supreme Court rendered in the case of Anoop Jaiswal Vrs. Government of India and Another reported in (1984) 2 S.C.C. 369 and in the case of Union of India and Others Vrs. Mahaveer C. Singhvi reported in (2010) 8 SCC 220, submitted that the Court can go behind the formal order of discharge to find out the real cause of action and simple order of discharge of probationer on the ground unsuitability passed before completion of his probation period may not be an order actually based upon report/recommendation of the concerned authority indicating commission of alleged misconduct by the probationer and in such a situation the order may be punitive in nature. In the case of Mahaveer C. Singhvi, discharge was of a probationer and was shown to be a discharge simplicitor and while considering the same issue, the Hon'ble Supreme Court found that it was not an order simplicitor. Learned counsel for the respondents writ petitioners also submits that the learned Single Judge has also found that the order is stigmatic and when out of 172 candidates, only 19 have been selected for passing such type of order of discharge from service which clearly indicates that there was application of mind on the allegation and recording of finding and expressly by writing order, camouflage was created. 15. We have considered the submissions of the learned counsel for the respondents-writ petitioners and perused the aforesaid decision also. We are of the considered opinion that we have already issued notices to the State Government as well as to all the selected candidates including the writ petitioners to show cause as to why the entire process of selection started by issuing advertisement No. 07 of 2005 may not be cancelled and the arguments of the learned counsel for the writ petitioners, apart from our order passed today, may have some, prima-facie, foundation but in the light of our observations made above and issuance of notice for show cause for cancellation of selection process in entirety, we are of the considered opinion that the impugned order is liable to be stayed. It will be worthwhile to mention here that the appointment if continued, the State cannot be reimbursed in any manner, even minimum the monetary loss which may be suffered by the State Government from the Public exchequer and apart from other harm, which may be in the facts and circumstances, to the public at large and administration as a whole. Because of this prima-facie opinion, we are of the considered opinion that the impugned order thus be stayed and is stayed. 16. Put-up these cases on 09.12.2011. 17. Copy of this order may be given to the learned counsel for the appellants and the respondents. Copy of this order may also be sent to all the selected candidates to whom the notices are required to be issued in pursuance of this order. 18. No notice need be issued to the respondents-writ petitioners as learned counsel appearing on their behalf accepts all the notices and he may file reply within two weeks from today. 19. Notice be issued only in L.P.A. No. 254 of 2011 and since all others are connected matters, no notice is required to be issued.