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2016 DIGILAW 461 (MP)

VIJAY SHANKAR UPADHYAY v. STATE OF M. P.

2016-06-16

S.C.SHARMA, VED PRAKASH SHARMA

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JUDGMENT : VED PRAKASH SHARMA, J. 1. Cr.R. No. 1335/2015, Cr.R. No. 1395/15, Cr.R. No. 1396/15, Cr.R. No. 1397/15, and Cr.R. No. 1398/15 have been heard together and are being disposed of by this common order as common questions of law based on identical facts are involved in all these matters. The main order is being passed in Criminal Revision No. 1335/15. 2. All these petitions are directed against order dated 8-9-2015 passed by Special Judge (under Prevention of Corruption Act, 1988), Indore, in Special Case No. 01/09, registered on the basis of charge-sheet filed by Special Police Establishment Lokayukt, Indore in Crime No. 15/07, whereby, rejecting the plea for discharge raised by the petitioners, charges for offences under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 ( for short ‘the Act’) and section 120-B and 201, Indian Penal Code have been framed against each of the petitioners. 3. The relevant facts, briefly stated, are that pursuant to an advertisement published in daily newspapers of Indore on 24-8-1994 for filling up 72 vacant posts of Harijan Baildars by direct appointment, 89 persons were appointed, vide order dated 22-8-1997 issued under the signatures of petitioner-Vijay Shankar Upadhyay, the then Deputy Commissioner, Municipal Corporation, Indore. In November 1997, one Kamal Sadhwani complained in writing to the Lokayukt that a number of persons not fulfilling the eligibility criteria have been appointed by concerned Authorities by indulging in serious acts of criminal misconduct. Pursuant to this, Crime No. 15/07 was registered by Special Police Estt. Lokayukt, Indore. The investigating agency found following serious irregularities in the aforesaid appointments : • 89 persons were appointed against 72 vacancies. • 23 appointees did not fulfill the criteria of minimum age i.e. 20 years (as on 1-1-1995) on the date of submitting application. • 39 appointees did not possess minimum educational qualification (i.e. 5th Standard). • 63 appointees out of 89, had no enrolment with Employment Exchange on the date of application. 4. During investigation it was found that the Selection Committee comprised of Chhotu Shukla (petitioner in Cr.R. No. 1395/15), Ramlal Yadav (petitioner in Cr.R. No. 1396/15), Anil Shukla (petitioner in Cr.R. No. 1398/15), Chhote Yadav, Suresh Minda and Umashankar Awasthi, all Corporators of the Municipal Corporation, including Arvind Kumar Puranik, the then Chief Health Officer, Municipal Corporation, Indore and Banshilal Joshi, the then Secretary of Municipal Corporation, Indore. The appointment order was issued under the signatures of Vijay Shankar Upadhyay, the then Deputy Commissioner, Municipal Corporation, Indore. It was found that the petitioners, in their capacity as members of the selection committee, were directly involved in the process of selection and appointment and that they along with other accused persons had entered in to a criminal conspiracy and by indulging in serious acts of criminal misconduct had caused wrongful loss to the Corporation and wrongful gain to themselves and as well as to the ineligible appointees. 5. Allegedly, one Megha Bhagwat, a Clerk in the Dept. of Town and Country Planning, Bhopal, was responsible for upkeep of the documents pertaining to the selection and appointment, however, the same were not made available by her during investigation; which indicated towards elimination of relevant evidence and her involvement in the aforesaid conspiracy. Accordingly, 10 accused persons, including the petitioners, have been charge-sheeted before the Court of Special Judge, Indore. 6. At the stage of framing charge, the petitioners prayed before the learned Court for discharge on various grounds, however, the learned Special Judge, after considering the pleas raised by them, vide the impugned order, rejected the plea of discharge and framed the charges against them as stated herein above. 7. Petitioners Vijay Shankar Upadhyay, Chhotu Shukla, Ramlal Yadav, and Anil Shukla, who are said to be a part of the Selection Committee in their capacity as Corporators, have challenged the impugned order on the ground that the scrutiny of the applications regarding the eligibility of the candidates on criterion of age, minimum qualification etc., was not part of their duty rather it was required to be done by the office of the Commissioner. The duty of the Selection Committee was simply to interview the candidates to evaluate their personality and competency for appointment. It is further submitted that application forms along with original testimonials of the candidates to be interviewed were never placed before the members of the Selection Committee, hence, there was no occasion to verify the same. Apart this, it is also submitted that the relevant Rules did not contemplate that a candidate for the post Harizan Baildar should possess qualification of 5th standard. Apart this, it is also submitted that the relevant Rules did not contemplate that a candidate for the post Harizan Baildar should possess qualification of 5th standard. Attention in this connection has been drawn to entry at Serial No. 50 of Schedule III of the relevant By-laws of 1992, pertaining to the post of Harijan Baildar wherein, no minimum qualification is mentioned. 8. Thus, the sum and substance of the arguments raised on behalf of petitioners Vijay Shankar Upadhyay, Chhotu Shukla, Ramlal Yadav and Anil Shukla is that they cannot be held liable for lapses committed by the Office in the scrutiny of the application forms, as regards eligibility criteria of the candidates and that they had interviewed and recommended for selection only those candidates, who, as per the list placed before the Selection Committee by the Office, were to be interviewed by the Committee. 9. As against this, the learned counsel for the State has submitted that being part of the Selection Committee, the aforesaid petitioners were obliged to examine whether the candidates, who were interviewed by the Committee, confirmed to the eligibility criteria for the post ; and that failure to look into this important and basic aspect with regard to large number of appointees clearly indicates towards there wilful involvement in the alleged criminal conspiracy and indulgence in acts of grave misconduct, whereby the officers of the Corporation and the Corporators appointed persons who were not fulfilling eligibility criteria regarding age, educational qualification and other important aspects. 10. The plea raised on behalf of petitioner Vijay Shankar Upadhyay, the then Deputy Commissioner, Municipal Corporation, Indore and Banshilal Joshi, Secretary of the Municipal Corporation, Indore, is that the appointment of the candidates to the aforesaid posts was made on the basis of the recommendation of the Selection Committee. The Selection Committee was required to ensure that every candidate recommended by it fulfilled the eligibility conditions regarding minimum age, and educational qualification that other relevent aspects on the basis of material placed before the Selection Committee. Failure on their part, cannot be made a ground to prosecute the petitioners, who are simply the employees of the Corporation. It is further submitted on behalf of Vijay Shankar Upadhyay that the appointing Authority in the instant matter was Commissioner of the Indore Municipal Corporation. Failure on their part, cannot be made a ground to prosecute the petitioners, who are simply the employees of the Corporation. It is further submitted on behalf of Vijay Shankar Upadhyay that the appointing Authority in the instant matter was Commissioner of the Indore Municipal Corporation. The candidates to be appointed were finalised by the Selection Committee and it was under the approval of the Commissioner that the appointment order was issued under his signature, therefore, his role was not that of a decision maker, hence, he is not responsible in the matter. The same line of arguments has been adopted on behalf of Shri Banshilal Joshi, the Secretary of Municipal Corporation, Indore. 11. Per contra, learned counsel for the S.P.E. has submitted that being officials of the Corporation, these two petitioners were required to ensure that the candidates who were short listed for interview by the Office did confirm to the eligibility criteria. Office had to play a significant role in this connection. The petitioners were senior officers, being the Deputy Commissioner and Secretary of the Municipal Corporation, therefore, they cannot escape their responsibility. The lapses are not of routine nature, rather, the same are of serious nature as more than 50% of the appointees were found not fulfilling the eligibility criteria, either as regards minimum age or as regards minimum qualification. This clearly indicates towards the involvement of the petitioners as officers of the Corporation in the criminal conspiracy to confer wrongful benefit to the appointees, who were otherwise unfit for the appointment. Apart this, appointment of 89 persons as against 72 vacancies was totally wrong for which the petitioners are very much responsible. Hence, there is no scope to interfere in the impugned order because undue advantage was extended by the Members of the Selection Committee and other officials by indulging in criminal misconduct. 12. Considered the rival submissions made by the learned counsel for the parties and perused the record. Direct recruitment to the post of ‘Harizan Baildar’ was to be made in accordance with ‘Indore Municipal Corporation Service Recruitment Bye-Laws, 1992’ (hereinafter called “the Bye-laws, 1992”), a copy of which is available in the record pertaining to Cr.R. No. 1395/2015. Rule 4 of the aforesaid Rules provides that recruitment to a post shall be made by direct recruitment or by promotion or by transfer on deputation. 13. Rule 4 of the aforesaid Rules provides that recruitment to a post shall be made by direct recruitment or by promotion or by transfer on deputation. 13. In the instant case, advertisement for direct appointment to the post of ‘Harizan Baildar’ against 72 vacancies was issued. “The Bye-laws 1992” are silent about constitution of Selection Committee. However, it transpires from the record that pursuant to the directions of Commissioner, a Selection Committee was constituted which included, Vijay Shankar Upadhyay (petitioner in Cr.R. No. 1335/2015), Chhotu Shukla (petitioner in Cr.R. No. 1395/15), Ramlal Yadav (petitioner in Cr.R. No. 1396/15), Anil Shukla (petitioner in Cr.R. No. 1398/15), Suresh Minda, Chhote Yadav and Umashankar Awasthi, (all Corporators of the Municipal Corporation), Arvind Kumar Puranik, the then Chief Health Officer, Municipal Corporation, Indore and Banshilal Joshi, the then Secretary of Municipal Corporation, Indore. The appointment order was issued under the signatures of Vijay Shankar Upadhyay, the then Deputy Commissioner. The overall supervision of the selection process was in the hands of Vijay Shankar Upadhyay, the then Deputy Commissioner of Municipal Corporation, Indore. 14. The plea raised on behalf of Chhotu Shukla, Ramlal Yadav, and Anil Shukla, who were members of the Selection Committee in the capacity of Corporator, that scrutiny of application forms to ascertain the eligibility criteria of the candidates was required to be carried out by the Office of the Commissioner and, in particular, by the Deputy Commissioner – Vijay Shankar Upadhyay who was looking after the process of selection, carries much weight. Indeed, in any recruitment process, the role of the Selection/Interview Committee is limited to evaluation of the personality of the person to be interviewed. The members of the Selection/Interview Committee are provided with the list of the candidates to be interviewed as per the schedule fixed by the Office in this behalf. Nothing has been brought before us to show that it was the duty of the members of the Selection Committee to carry out scrutiny of the application forms to ensure that they confirm to the eligibility conditions. Indeed, it was primarily for the officers associated with the process of selection to examine the application forms of the candidates and to ascertain that only those candidates are recommended for interview who confirm to the eligibility criteria. 15. Indeed, it was primarily for the officers associated with the process of selection to examine the application forms of the candidates and to ascertain that only those candidates are recommended for interview who confirm to the eligibility criteria. 15. Even if it is assumed for the sake of argument that the Selection Committee recommended, the name of certain persons not included in the List of candidates forwarded by the Office to the Selection Committee, it was the duty of the Office, and particularly, the person issuing the appointment order, to ensure that recommendations of the Selection Committee regarding only those persons are accepted who have duly applied for the post and who confirm to the eligibility criteria as regards minimum qualification, age and other aspects. 16. As the list forwarded by the office of the Municipal Commissioner to the Selection Committee has not been placed before us, therefore, it is difficult to believe that persons not included in the list were recommended for appointment. As pointed out above, even if such recommendation was there by the Selection Committee, it was the duty of the concerned officials not to issue appointment order regarding such persons who either have not formally applied to the post or were not fulfilling the eligibility. 17. Thus, granting appointment to persons not fulfilling eligibility criteria or who had not formally applied for the post indicates towards the culpability of the officials responsible for scrutiny of the forms and issuance of appointment order. The members of the Selection Committee, thus, cannot be held liable for their final appointment as the recommendation of the Selection Committee, qua persons not confirming to the eligibility criteria or who had not applied for the post, were not at all binding on the appointing authority. 18. Thus, culpable liability cannot be fastened against Chhotu Shukla (petitioner in Cr.R. No. 1395/15), Ramlal Yadav (petitioner in Cr.R. No. 1396/15), and Anil Shukla (petitioner in Cr.R. No. 1398/15), who were in the selection committee in the capacity of Corporator. 19. However, the case of Vijay Shankar Upadhyay, the then Deputy Commissioner and Banshilal Joshi, Secretary stands on a different footing. 19. However, the case of Vijay Shankar Upadhyay, the then Deputy Commissioner and Banshilal Joshi, Secretary stands on a different footing. They being the officials of Municipal Corporation, were under legal obligation to ensure that not name of only those persons are sent to the Selection Committee for interview, who fulfil the eligibility criteria, but also that only those persons are appointed who confirm to the eligibility conditions and have formally applied for the post. 20. Thus, prima facie it cannot be said that Vijay Shankar Upadhyay, the then Deputy Commissioner and Banshilal Joshi, Secretary are not liable for the serious irregularities committed by the Office of the Municipal Commissioner, Indore in the appointment of persons to the post of Harizan Baildars indicating towards criminal misconduct within the meaning of section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. 21. In view of the aforesaid, the charges framed for 10 offences under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and section 120-B and 201, Indian Penal Code against the petitioners - Chhotu Shukla (petitioner in Cr.R. No. 1395/15), Ramlal Yadav (petitioner in Cr.R. No. 1396/15), and Anil Shukla (petitioner in Cr.R. No. 1398/15), being not sustainable, on facts and law, are liable to be quashed. 22. Accordingly, Cr.R. No. 1395/1, Cr.R. No. 1396/15, and Cr.R. No. 1398/15, are hereby allowed and the trial proceedings being conducted against the petitioners in the said petitions, in Special Case No. 01/2009 along with the charges are hereby quashed. 23. In view of the above, Cr.R. No. 1335/15 and Cr.R. No. 1397/15 are hereby dismissed. Original order be kept in Cr.R. No. 1335/15 and a copy of this order be kept in the aforementioned connected petitions. CC as per Rules.