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Allahabad High Court · body

2017 DIGILAW 1235 (ALL)

Ishtiyaq Ahmad v. State of U. P.

2017-05-09

D.K.UPADHYAY

body2017
JUDGMENT D.K. Upadhyay, J. 1. These proceedings instituted under Article 226 of the Constitution of India seek to challenge the validity of an order dated 16.12.2015, passed by the State Government, whereby the written examination held on 05.07.2015 for one year training of Health Worker (Male) has been cancelled and re-examination for the said training course has been ordered. 2. Heard learned counsel for the petitioners and learned Standing Counsel appearing for the State-respondents. 3. On 19.11.2012 an advertisement was issued for selecting candidates for one year training of Health Worker (Male) and 540 vacancies were advertised for the said training. The written examination pursuant to the said advertisement was held on 05.07.2015, however, before the result of the said written examination could be declared, a complaint was received by Hon’ble Minister of the State Government in the department of Health relating to certain alleged irregularities and corruption in the said written examination from one Dr. Abdul Haq, who at the relevant point of time was the State Secretary of the Minority Cell of the then ruling party. On the said complaint, an order was passed by the then Hon’ble Minister on 08.07.2015 directing the Principal Secretary of the department concerned to get an enquiry conducted by the Director (Administration), Medical and Health, U.P., and it was further directed that appropriate decision be taken on the said enquiry and till then further proceedings relating to the said examination be deferred and that the result be also not declared. On the directions so issued, the State Government by means of its order dated 10.07.2015 directed an enquiry to be conducted and nominated Director (Administration), Medical and Health, U.P. as Enquiry Officer. The Enquiry Officer, namely, Director (Administration) by means of an order dated 31.07.2015 constituted a Three Member Committee for examination of record and submission of report. The said Committee comprised of (i) Dr. Arjun Singh, Joint Director (Administration), Lucknow (ii) Dr. Aruna Rani Chandra, Joint Director (Administration), Lucknow and (iii) Dr. S.H. Jaisi, Joint Director (Headquarters). The said Committee appears to have submitted its report on 10.11.2015 to the Director (Administration), who submitted his report to the State Government on 18.11.2015. The said Committee comprised of (i) Dr. Arjun Singh, Joint Director (Administration), Lucknow (ii) Dr. Aruna Rani Chandra, Joint Director (Administration), Lucknow and (iii) Dr. S.H. Jaisi, Joint Director (Headquarters). The said Committee appears to have submitted its report on 10.11.2015 to the Director (Administration), who submitted his report to the State Government on 18.11.2015. It is, on the basis of the said report dated 18.11.2015 submitted by the Enquiry Officer i.e. Director (Administration), that the State Government took the impugned decision cancelling the written examination held on 05.07.2015 by means of the impugned order dated 16.12.2015. 4. The State Government while passing the impugned order has observed that in the enquiry report submitted by the Enquiry Officer on 18.11.2015, it has come to notice that several candidates received their call letters belatedly and that certain call letters were dispatched after the date of written examination. The impugned order further recites that from a perusal of the report dated 07.12.2015 submitted by the Director, Family Welfare, it was revealed that as against 1,28,605 applications received, only 17,349 candidates appeared in the examination. Based on the aforesaid enquiry report, the one submitted by the Director (Administration) on 18.11.2015 and the other submitted by the Director General, Family Welfare on 07.12.2015, the State Government took the impugned decision cancelling the written examination held on 05.07.2015 and also directing that re-examination for one year training of Health Worker (Male) be conducted. It has further been directed by the impugned order that all the applications which were received pursuant to the advertisement published earlier be re-examined and the work relating to conduct of written examination be entrusted to some other agency as per rules. 5. Assailing the validity of the impugned order dated 16.12.2015, passed by the State Government, it has forcefully been contended by the learned counsel appearing for the petitioners that the reasons indicated in the impugned order are not germane and that there was no minimum number of applicants fixed, who were required to participate in the written examination. It has further been contended by the learned counsel for the petitioners that the report submitted by the Enquiry Officer on 18.11.2015 is not based on careful scrutiny of the records and, in fact, is contradictory in itself. It has further been contended by the learned counsel for the petitioners that the report submitted by the Enquiry Officer on 18.11.2015 is not based on careful scrutiny of the records and, in fact, is contradictory in itself. Further submission of learned counsel for the petitioners is that since the records relating to written examination were seized and as such scrutiny of the entire relevant record was not possible and, thus, the enquiry report submitted by the Enquiry Officer on 18.11.2015 is not based on appropriate examination and scrutiny of the entire material and record. 6. During the course of the proceedings of this writ petition, Three Members of the Enquiry Committee constituted by the Director (Administration) on 31.07.2015 were impleaded as respondents, who have filed their affidavits. It was also noticed by the Court during the proceedings of this writ petition that earlier an enquiry report was prepared, which was modified and finally submitted on 10.11.2015. On 23.05.2016 the Court passed the following order: “The affidavits filed today are taken on record. The affidavits filed in response to the order dated 27.04.2016 admit of an enquiry report other than enquiry report dated 06.11.2015 having been prepared, which was modified and finally submitted on 10.11.2015 i.e. the subsequent report dated 05.11.2015. The Court recollects that on 27.04.2016 all the officers who were present had categorically denied any such report other than one presented along with letter dated 10.11.2015. The statement of Sri Warsi in this regard was also recorded. The affidavit of Dr. Aruna Rani Chandra, Joint Director (Administration) dated 12.05.2016 which has been filed today and the letter annexed with it belie the statement made before this Court by Sri Warsi as also the other officers. Thus statement made on behalf of State, prima-facie, is found to be false. Let special Secretary, Medical and Health along with Director General, Family Welfare appear before this Court on 27.05.2016 to explain their conduct in the matter as also as to why an enquiry be not ordered in the matter. They shall place before the Court the enquiry report which is referred in para 4 of the affidavit of Dr. Aruna Rani Chandra.” 7. On 30.05.2016 an enquiry report other than the one submitted through letter dated 10.11.2015 surfaced before the Court which was placed before the Court by the learned Additional Chief Standing Counsel representing the State on 30.05.2016. They shall place before the Court the enquiry report which is referred in para 4 of the affidavit of Dr. Aruna Rani Chandra.” 7. On 30.05.2016 an enquiry report other than the one submitted through letter dated 10.11.2015 surfaced before the Court which was placed before the Court by the learned Additional Chief Standing Counsel representing the State on 30.05.2016. On 30.05.2016 this Court passed the following order: “Heard learned counsel for the parties. The first inquiry report submitted by a three member committee appointed by the Director Administration which was earlier not available inspite of repeated queries made by this Court, a photocopy thereof has suddenly surfaced before the Court today having place before the Court by Shri H.P. Srivastava, learned Additional Chief Standing Counsel. When asked as to from where it had come before the Court the learned counsel appearing for the State as also the Officials were completely at sea and were unable to give any satisfactory answer except to say that it was lying in the file. The Bench Secretary is ordered to get the report photocopied and kept on record of the writ petition thereafter return it to the learned Additional Chief Standing Counsel. List/put up tomorrow i.e. 31.05.2016 to enable the learned Additional Chief Standing Counsel Shri H.P. Srivastava to go through the relevant records, prepare the case, and assist the Court tomorrow. The officers who are present today shall appear before the Court again tomorrow at 3.30 p.m.” 8. Thus, there appears to be two reports, which were prepared by the Three Members Committee, the one submitted to the Director (Administration) through letter dated 18.11.2015 to the State Government and the other which is said to have been modified. All the Three Members of the Enquiry Committee constituted by the Director (Administration) in their affidavits have stated that after completion of the enquiry, report dated 26.10.2015 was furnished before the Director (Administration), who after its perusal made discussions with the Members of the Committee and upon deliberations certain modifications were felt to be embodied in the report and therefore after incorporating such necessary amendments, the Three Members Enquiry Committee finally submitted its enquiry report dated 10.11.2015 to the Director (Administration) and it is this report which was forwarded by the Director (Administration) to the State Government vide his letter dated 18.11.2015. 9. 9. A counter affidavit dated 11.07.2016 has been filed, which is duly sworn in by one Shri Manavendra Singh, the Special Secretary of the State Government in the department of Medical, Health and Family Welfare along with which a letter dated 07.12.2015 has been annexed, which is written by the Director General, Family Welfare to the State Government disclosing therein that on 05.07.2015 after examination was over, O.M.R. sheets/answer sheets and the attendance sheets were sealed and reports from 170 examination centers was also called for from the Center-in-Charges and further that on 05.07.2015 itself in the evening a center wise chart was prepared to ascertain the candidates who participated in the written examination. Through the said letter, the Director, Family Welfare also informed the State Government that against 1,28,605 candidates who had applied pursuant to the advertisement, the number of candidates, who appeared in the said examination held on 05.07.2015 was 17,349. 10. A short counter affidavit has been filed by the Director (Administration) which is duly sworn in on 11.07.2016 along with which a comparative chart has been enclosed as annexure No. SCA-5 which indicates the difference between the two reports dated 26.10.2015 and 10.11.2015. 11. The comparative chart annexed as SCA-5 to the short counter affidavit filed by the Director (Administration), Family Welfare, U.P. makes an interesting reading. In the report dated 26.10.2015 the procedure undertaken at the time of conducting the examination and procedure which preceded the examination have been justified whereas in the report dated 10.11.2015 several irregularities have been pointed out which are said to have occurred prior to conduct of the examination. Irregularities pointed out in the enquiry report dated 10.11.2015 primarily relate to belated receipt of the call letters by the candidates and dispatch of call letters after the examination. The report dated 10.11.2015 further contains a recital that in absence of relevant record being made available to the Committee, it is not possible to give any report relating to number of candidates who participated in the written examination. 12. What is noticeable in this case is that none of the candidates, who are said to have submitted their application forms pursuant to the advertisement, except one, has been made any complaint in respect of the alleged irregularities committed in dispatch or receipt of the call letters. 12. What is noticeable in this case is that none of the candidates, who are said to have submitted their application forms pursuant to the advertisement, except one, has been made any complaint in respect of the alleged irregularities committed in dispatch or receipt of the call letters. The complaint dated 08.07.2015 was made by the State Secretary of the Minority Cell of the then ruling party on which the Hon’ble Minister of the department has passed an order on the same day i.e. on 08.07.2015 requiring the Principal Secretary to get an enquiry conducted into various aspects of the written examination by the Director (Administration). The State Government vide its order dated 10.07.2015 nominated the Director (Administration), Medical and Health, U.P. as Enquiry Officer. The Director (Administration) on 31.07.2015 by issuing an Office Memorandum appointed a Three Members Committee to submit its report of examination of the records. 13. Though the State Government had required the Director (Administration) to conduct enquiry himself, however, the Director (Administration) appointed a Three Members Committee for submitting its report after scrutiny of the records. Considering the bulk of records pertaining to large number of candidates, there was nothing wrong if the Director (Administration), who was nominated as the Enquiry Officer, had constituted Three Members Committee for scrutiny of the records and for submitting its report. The said Committee by the Enquiry Officer was constituted for providing aid to the Enquiry Officer in the enquiry. The enquiry report to be submitted by the Three Members Committee was primarily for consumption of the Enquiry Officer, namely, the Director (Administration), who on the basis of such enquiry report submitted by the Three Member Committee ought to have forwarded his report containing his own comments and findings. The record of the case as also the affidavits filed before this Court by all the three Members Committee make it clear that the Enquiry Committee had prepared two reports. The first is dated 26.10.2015, which was furnished by the Enquiry Committee to the Director (Administration) i.e. the Enquiry Officer and the second enquiry report is dated 10.11.2015, which too, was submitted to the Director (Administration). It is the second enquiry report dated 10.11.2015, which has been forwarded to the State Government by the Enquiry Officer i.e. the Director (Administration) on the basis of which the impugned decision by the State Government has been taken. It is the second enquiry report dated 10.11.2015, which has been forwarded to the State Government by the Enquiry Officer i.e. the Director (Administration) on the basis of which the impugned decision by the State Government has been taken. Existence of these two reports, thus, are not denied. 14. The Enquiry Officer i.e. the Director (Administration) has submitted his report to the State Government vide his letter dated 11.11.2015 which inter alia recites that the Director, Medical, Health and Family Welfare has submitted his report on certain issues mentioned in the complaint and the agency which conducted the written examination has also submitted its report in respect of certain issues of the complaint stating that the necessary information cannot be furnished for the reason that the records relating to written examination are sealed. On certain issues, namely, issue Nos. 1, 4 and 9 of the complaint, the Director, Family Welfare had also not given his report. This fact has also been recited in the letter dated 18.11.2015. The letter dated 18.11.2015 further states that several points raised in the complaint have not been established, however, certain facts have been noticed which concerned fairness of the written examination and that the agency which conducted the examination could not give information as to how many candidates had participated in the written examination. The letter also states that certain candidates received the call letters belatedly and in certain cases the call letters were sent after the examination. 15. The letter dated 18.11.2015 sent by the Enquiry Officer to the State Government, however, does not make a mention of the earlier enquiry report submitted by the same committee, namely, the report dated 26.10.2015. The affidavits filed by the respondents also do not indicate as to what exactly prompted and what in fact was the reason for submitting another report dated 10.11.2015. The only reason, which has come forth in the affidavits filed by all the Three Members of the Enquiry Committee is that after furnishing the report dated 26.10.2015 to the Director (Administration), the same was perused by the Director (Administration), who discussed the report with the Three Members of the Enquiry Committee and on deliberations certain modifications were felt to be embodied. Such a course, in my considered opinion, was available to the Director (Administration). 16. Such a course, in my considered opinion, was available to the Director (Administration). 16. What is glaring in this matter is that the enquiry report dated 26.10.2015 and the report dated 10.11.2015, both submitted by the same Three Members Committee gave findings which are completely opposite to each other. The changes/amendments made in the earlier enquiry report dated 26.10.2015, which resulted in preparation of the second enquiry dated 10.11.2015 are not minor changes. In fact, the subsequent enquiry report dated 10.11.2015 and the findings recorded therein are a complete reversal of the earlier enquiry report dated 26.10.2015. In my considered opinion, in case the Director (Administration) on perusal of the enquiry report dated 26.10.2015 had found certain discrepancies in the said enquiry report, he ought to have given his opinion/comments on such discrepancies, which could be said to have been noticed by him while forwarding the report to the State Government. The report dated 26.10.2015 ought to have been submitted by the Enquiry Officer i.e. the Director (Administration) to the State Government along with his comments regarding discrepancies or flaws in the findings available on the enquiry report dated 26.10.2015. 17. It is true that the Three Members Enquiry Committee was not constituted by the State Government; rather it was constituted by the Enquiry Officer, namely, the Director (Administration) himself for the purposes of providing help and aid to him. However, in case the Director (Administration) was of the view that the enquiry report submitted by the Three Members Committee on 26.10.2015 was not appropriate or proper, he could have observed so while forwarding the said report to the State Government along with his own comments and findings. The State Government would, in its discretion, would have been free to draw its own conclusions based on the Three Members Enquiry report dated 26.10.2015 coupled with the comments of the Director (Administration), which would have accompanied the said enquiry report dated 26.10.2015. 18. As observed above, the circumstances in which two enquiry reports have been submitted by the Three Members Committee, are not at all satisfying. 18. As observed above, the circumstances in which two enquiry reports have been submitted by the Three Members Committee, are not at all satisfying. It is also worthwhile to observe that initially, existence of the former enquiry report dated 26.10.2015 was being denied by the State-respondents, however, as noticed by this Court in its order dated 30.05.2016, the former enquiry report had suddenly surfaced which was placed before the Court by none other than the learned counsel representing the State-respondents. 19. In the fact and circumstances noted herein above, I have no hesitation to hold that the entire course adopted by the respondents in getting the enquiry conducted cannot be said to be proper and any decision based on such an enquiry can also not be permitted to be sustained. 20. The writ petition, resultantly, is allowed. The impugned order passed by the State Government on 16.12.2015, as is contained in annexure No. 1 to the writ petition is hereby quashed. 21. However, looking to the seriousness of the allegations and also taking into account the entire facts and circumstances of the case, which have surfaced during these proceedings before this Court, it is further directed that a fresh enquiry shall be conducted by the respondents into the allegations relating to conduct of the examination and the procedure which preceded the written examination dated 05.07.2015 such as alleged belated receipt of the call letters and dispatch of the call letters to the candidates allegedly after the examination. 22. So far as the other directions contained in the impugned order dated 16.12.2015 are concerned, namely, that some other agency for conducting the examination be chosen/appointed and that all application forms received pursuant to the earlier advertisement be scrutinized; the Court is of the opinion that the same need not be interfered with and directs the State Government to act accordingly. The fresh enquiry into the allegations, as aforesaid, shall be conducted and concluded in a fair and transparent manner by the State-respondents within a period of three months from the date of production of certified copy of this order and further action shall be taken dependent on the outcome of the enquiry. The fresh enquiry into the allegations, as aforesaid, shall be conducted and concluded in a fair and transparent manner by the State-respondents within a period of three months from the date of production of certified copy of this order and further action shall be taken dependent on the outcome of the enquiry. It will also be borne in mind by the State Government that selection for one year training of Health Worker (Male) was initiated in the year 2007 and 2011 but these two processes have already been cancelled, hence there appears to be pressing need to hold and conclude the selection at the earliest. 23. There will be no order as to costs.