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2016 DIGILAW 776 (ALL)

Santosh Kumar v. State of U. P.

2016-03-02

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT These special appeals have arisen from a judgment of the learned Single Judge dated 1 February 2016. 2. Two writ petitions were placed for hearing together before the learned Single Judge. The first writ petition was by Santosh Kumar whose appointment as a steno typist in the Public Works Department (1) was cancelled on 27 July 1999 by the Executive Engineer acting on the basis of a complaint filed by Km. Reena Kanaujia. Km. Reena Kanaujia had also participated in the process of selection for the filling up of six posts of steno typist in Hindi in which Santosh Kumar but not the complainant, was selected. Acting on the complaint, a preliminary inquiry was held in which the complainant was heard but not the persons who were selected. Eventually, the appointment was cancelled on the ground that Santosh Kumar had failed to attain the minimum typing speed of 25 words per minute in the typing test. Santosh Kumar challenged his termination in a writ petition before the learned Single Judge. Km. Reena Kanaujia in her writ petition sought the cancellation of the appointment of Santosh Kumar and for a mandamus to appoint her on the post of steno typist in Hindi. The learned Single Judge dismissed the writ petition filed by Santosh Kumar and allowed the writ petition filed by Km. Reena Kanaujia by directing the appointing authority to consider her claim for appointment on the post prospectively. (1) PWD 3. The Uttar Pradesh Procedure for Direct Recruitment on Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998 contain in Rule 5 the procedure for direct recruitment. Rule 5(4) provides that the test for selection shall carry 100 marks. Rule 5(4)(e) provides as follows: “(e) In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of typewriting or shorthand and typewriting, as the case may be. Twenty percent of the percentage of marks obtained in the said test shall be given only to those candidates who have attained minimum speed, prescribed for typewriting or shorthand and typewriting, as the case may be. The number of candidates to be called for typewriting test or shorthand and typewriting test, as the case may be, shall be four times the number of the vacancies. The number of candidates to be called for typewriting test or shorthand and typewriting test, as the case may be, shall be four times the number of the vacancies. For this purpose the merit list of candidates shall, having regard to the provisions of reservation referred to in Rule 4, be made separately on the basis of marks obtained by them under clauses (a), (b), (c) and (d).” 4. An advertisement was issued by the Principal Secretary (Personnel) by which the selection process was initiated for the appointment of steno typist in PWD. The selection process envisaged a written examination carrying 100 marks. Clause (8) contemplated a test in stenography and typing. The advertisement specified that only those candidates who qualify in the test for stenography and typing would be called for interview. The essential qualifications required were the holding of an intermediate certificate and fulfilment of a minimum speed of 18 words per minute in stenography and 25 words per minute in typing, both in Hindi. The appellant was appointed in pursuance of a regular process of selection under a memorandum dated 8 March 1999. The initial appointment stated that it would be on a temporary basis and was liable to be terminated. The complainant submitted a representation to the Chief Minister on 12 April 1999 complaining of irregularities in the appointment which had been made by the then Superintending Engineer. On the basis of the complaint, an inquiry was held and a report was submitted by the Additional Commissioner (Administration), Kanpur Division on 29 April 1999. The complainant was heard by the Additional Commissioner but not the appellant who was the selected candidate. The Additional Commissioner found substance in the complaint against the appellant following which the services of the appellant were terminated on 27 July 1999. Aggrieved by the termination, the appellant filed a writ petition. During the pendency of the writ petition, the order of termination was stayed by an interim order dated 19 August 1999. The appellant continued to work during the pendency of the writ proceedings. 5. By the judgment and order of the learned Single Judge dated 1 February 2016, the writ petition filed by the appellant was dismissed. During the pendency of the writ petition, the order of termination was stayed by an interim order dated 19 August 1999. The appellant continued to work during the pendency of the writ proceedings. 5. By the judgment and order of the learned Single Judge dated 1 February 2016, the writ petition filed by the appellant was dismissed. The writ petition which was filed by the complainant seeking to challenge the appointment of the appellant and for a mandamus for appointing her on the post of steno typist was allowed by directing the appointing authority to consider her claim for appointment prospectively. The learned Single Judge held that "it is undisputed" that in the examination conducted for the purpose, the appellant failed to qualify in terms of the eligibility criteria on the ground that he could type 20 words per minute in Hindi which was below the requirement of typing 25 words per minute. On the other hand, the complainant had succeeded in taking a dictation of 80 words per minute in Hindi shorthand but had typed 34 words per minute in Hindi. This finding in the inquiry report submitted by the Additional Commissioner (Administration) was, in the view of the learned Single Judge, borne out from the materials on the record and hence the appointments were legal. At the same time, the learned Single Judge held that invocation of the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 was not justified, since the appointment of the appellant was against a substantive vacancy pursuant to an advertisement. Yet the learned Single Judge held that even if the services of the appellant were dispensed with by applying the Rules applicable to temporary Government servants which were not applicable, this should not result in an illegality being restored, since the appointment of the appellant was held to be improper. 6. Two submissions have been urged in support of the appeal. The first submission is that the entire process was initiated at the behest of the complainant who submitted a representation to the Chief Minister. In the preliminary inquiry by the Additional Commissioner, the complainant was furnished an opportunity of being heard and her statement was recorded. Yet neither was the appellant heard nor was an opportunity furnished to him to controvert the case of the complainant that the applicant had not secured the minimum typing speed. In the preliminary inquiry by the Additional Commissioner, the complainant was furnished an opportunity of being heard and her statement was recorded. Yet neither was the appellant heard nor was an opportunity furnished to him to controvert the case of the complainant that the applicant had not secured the minimum typing speed. The entire inquiry was held ex parte. The learned Single Judge has come to the conclusion that the appointment of the appellant could not have been terminated under the Rules applicable to temporary Government servants, since the appointment was against a substantive vacancy after following a regular selection process. Once that be the position, the dispensation of the services of the appellant on the ground that the appointment was improper ought to have been preceded by adherence to the principles of natural justice and in the absence thereof, the order of termination would be unlawful. Secondly, it was urged that a disciplinary inquiry was held against the appointing authority who was the Superintending Engineer. The disciplinary authority found no fault in the appointment of the appellant in the inquiry report. On this ground, it was urged that, at the least, the appellant ought to have been associated with a fair inquiry if his appointment were to be terminated. 7. On the other hand, it has been urged on behalf of the complainant that once the appellant was found not to have achieved the minimum typing speed, the appointment was liable to be invalidated. Consequently, the judgment of the learned Single Judge has been supported by the complainant. 8. The basic facts which are not in dispute before this Court is that the appellant came to be selected for the post of steno typist in Hindi in PWD following a regular process of selection in pursuance of an advertisement. Under the terms of the advertisement, candidates were required to possess a minimum typing speed of 80 words per minute in taking Hindi shorthand and 25 words per minute in Hindi typing. The appellant qualified in the selection process and was duly appointed. Though, the appellant was placed in terms of the office memorandum, on a temporary basis, it is not in dispute that the appointment was against a substantive vacancy after a regular process of selection. The complainant sought to question the process of selection by levelling allegations of irregularities against the appointing authority to the Chief Minister. Though, the appellant was placed in terms of the office memorandum, on a temporary basis, it is not in dispute that the appointment was against a substantive vacancy after a regular process of selection. The complainant sought to question the process of selection by levelling allegations of irregularities against the appointing authority to the Chief Minister. Following this, an inquiry was held by the Additional Commissioner in which the complainant was called upon to participate. Significantly, the appellant whose appointment was being questioned was not associated with the inquiry. Based on the report of the Additional Commissioner, a conclusion was drawn that the appointment was improper and accordingly on 27 July 1999, the appointment was cancelled. 9. There is merit in the submission of the appellant that this has not been preceded by a recourse to the principles of natural justice. In the facts of the present case, as we shall indicate hereafter, the method in which the typing speed was to be calculated has itself been a bone of contention. Particularly in a situation where the complainant was heard, it was but appropriate and proper that the appellant should have been heard where the consequence of the report of the Additional Commissioner was to visit the appellant with an order of termination. Absent compliance with the basic principles of natural justice, there has been a patent unfairness in the process which has been adopted by the authorities. 10. The disciplinary inquiry which was concluded against the appointing authority resulted in an enquiry report dated 18 November 1999 of the Chief Engineer which exonerated the appointing authority. In fact, we may note that the evaluator who was examined during the course of the disciplinary inquiry, explained the basis on which the typing speed of the appellant had been computed. The appellant has relied upon this aspect of the disciplinary inquiry. The evaluator sought to explain the evaluation of the answer sheet by stating that the typing speed of the appellant has been computed as 31 words per minute (156 correct words divided by five minutes). We are indicating this aspect because particularly in a situation like this where there is no allegation of fraud against the selected candidates, it is but necessary and proper that a termination of the services post-appointment should have been preceded by compliance with at least the basic norms of fairness. We are indicating this aspect because particularly in a situation like this where there is no allegation of fraud against the selected candidates, it is but necessary and proper that a termination of the services post-appointment should have been preceded by compliance with at least the basic norms of fairness. The inquiry was held completely behind the back of the appellant and his services were terminated in consequence. The learned Single Judge has proceeded on the basis that it was an undisputed position that the appellant had failed to achieve the requisite typing speed. We are of the view that this proceeds purely on the basis of the preliminary inquiry report in which, as we have noted, the appellant was not permitted to participate and, as a matter of fact, the appellant has seriously disputed the conclusion that he had not achieved the minimum typing speed. 11. For these reasons, we are of the view that the special appeal should be allowed. We accordingly set aside the impugned judgment and order of the learned Single Judge dated 1 February 2016. However, we are of the view that it would be appropriate to grant to the competent authority liberty to conduct an inquiry afresh into the issue as to whether the appointment of the appellant had been improperly made specifically on the allegation that the appellant had not been able to achieve the requisite typing speed. 12. The appellant would be, it is needless to add, be associated in the inquiry that is convened and before a final decision is taken. The inquiry, if any, shall be concluded within a period of six months from the receipt of a certified copy of this order and the appointment of the appellant shall abide by the result of the inquiry. These special appeals shall accordingly stand disposed of in the aforesaid terms. In consequence, we set aside the order of termination dated 27 July 1999. There shall be no order as to costs. Appeal allowed.