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2017 DIGILAW 624 (ALL)

AMAN RIZVI v. STATE OF U. P.

2017-02-23

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard learned Counsel for the petitioners appearing in the afore-captioned writ petitions and the learned Standing Counsel for the respondents. 2. As in the aforesaid batch of writ petitions, common question of law and fact is involved, all the writ petitions were heard together and are being decided by a common judgment. 3. Ms. Aman Rizvi, petitioner in writ petition No. 8763 of 2016 (SS) has applied for the post of Staff Nurse, Blood Bank pursuance to the advertisement dated 3.3.2016 issued for appointment on various posts in district Shravasti under the National Health Scheme. After due process of selection, result dated 4.4.2016 was pasted on the notice Board in the office of the District Health Society, District Shravasti declaring the petitioner selected in the result declared after due approval of Chairman, District Health Society, Shravasti. Petitioners of writ petition No. 8765 of (SS) 2016, namely, Pankaj Kumar Sharma and Amit Kumar Chaudhary had applied for Senior Treatment Supervisor, Blood Storage Centre (Class-III) post and after due process of selection, petitioners were declared selected against the said post in the result declared on 4.4.2016. 4. Petitioners of Writ Petition No. 8772(SS) of 2016, namely, Sunil Kumar Maurya and Prateek Bhardwaj applied for the post of Data Entry Operator and after due process of selection, petitioners were declared to be selected in the result declared on 4.4.2016. 5. Petitioners of writ petition No. 9886(SS) of 2016, namely, Saurabh Yadav, Brajesh Kumar and Visveshwar applied for the post of Senior Treatment Supervisor and Lab Attendant respectively and after due process of selection, petitioners were declared selected against the said post in the result declared on 4.4.2016. 6. It is said that some complaints were made against the selection held on 31.3.2016 to the effect that one of the members of the selection committee, namely, Dr Ved Prakash Sharma, Chief Medical Superintendent participated in the meeting in which his son, namely, Dr Vaibhav Sharma also appeared for selection on the post of Medical Officer and was declared selected in the result dated 4.4.2016. Taking cognizance of the complaint, the Chairman, District Health Society Shravasti/District Magistrate cancelled the entire selection of the all the posts including that of the petitioners overlooking the fact that complaint was only against the post of the Medical Officer and as such there was no justification to cancel the selection en-bloc when the impact of irregularities which crept into evaluation of merit/qualification could be identified. To substantiate their assertions, petitioners have relied upon the judgments rendered by the Apex Court in Joginder Pal and others v. State of Punjab and others, (2014)6 SCC 644 and Union of India and others v. Rajesh P.U. Puthuvalnikathu and another, (2003) 7 SCC 285 . 7. In contrast, learned Standing Counsel has submitted that when it came to light that one Dr Vaibhav Sharma, who had applied for the post of Medical Officer, Blood Bank (Sl.No. 4) is the son of Dr Ved Prakash Sharma, Chief Medical Superintendent at Combined District Hospital, Shravasti. In these circumstances, one Dr Mukesh Mathenhelia, Dy. Chief Medical Officer was nominated as a member of the Interview Committee in place of Dr Ved Prakash Sharma.He has also pointed out that the complaint dated 7.4.2016 was not only against the selection held for the post of Medical Officer, but various other allegations were also made. 8. Elaborating his submission, learned Standing Counsel has submitted that fairness and transparency in any selection is of paramount importance and as there were irregularities, the entire selection process has been cancelled. In case, the petitioners are confident of their merit, they can very well participate in the fresh selection, as and when it takes place. 9. At the out set, it is relevant to mention that while entertaining the writ petition No. 8763 of 2016 (SS), this Court passed a restrained order against the respondents making any selection on the posts in question except the selection for the posts of Medical Officer, Blood Bank can be held afresh. 10. A perusal of the record reveals that an advertisement was issued on 5.3.2016 inviting applications for making appointments on various posts mentioned in the advertisement. In response to the advertisement, number of candidates applied and the interview was conducted by a selection committee duly approved by the respondent No. 4. 11. 10. A perusal of the record reveals that an advertisement was issued on 5.3.2016 inviting applications for making appointments on various posts mentioned in the advertisement. In response to the advertisement, number of candidates applied and the interview was conducted by a selection committee duly approved by the respondent No. 4. 11. In paragraph 4 of the counter-affidavit filed by the respondents, it has been stated that a Committee consisting of Chief Development Officer, Chief Medical Officer, Chief Medical Superintendent, Superintendent Community Health Centre [ minority member], Dr Jagdish Singh and Dr Mukesh Matenhelia was constituted. The said Interview Committee conducted interviews for all posts except the post of Medical Officer, Blood Bank as it was noticed that one Dr Vaibhav Sharma, who had applied for the post of Medical Officer, Blood Bank is the son of Dr Ved Prakash Sharma. It has also been clarified that for the post of Medical Officer, Blood Bank marks were awarded by only members of the Interview Committee. 12. Further, a perusal of the complaint annexed as Annexure CA-6 to the counter-affidavit shows that the allegations have been made against the post of Medical Officer (Blood Bank), Data Entry Operator (Blood Bank) and the post of STS. In respect of Medical Officer (Blood Bank) the allegations is that his father was the member of the selection committee which interviewed the candidates. For the post of ATC it has been alleged that preference has not been given to the candidates belonging to the district. As far as post of Data Entry Operator (Blood Bank) it has been alleged that the candidate selected, namely, Prateek Bhardwaj possess BA degree whereas requisite qualification is B.Com. The aforesaid allegations made in the compliant can easly be investigated and verified and only thereafter, a decision would have been taken with regard to issuance of appointment letter or cancellation of selection proceedings. In other words, the authorities ought to have made earnest endeavour to weed out the beneficiaries and in the event it was impracticable to weed out the beneficiaries then only, the entire selection process would have been cancelled. In other words, the authorities ought to have made earnest endeavour to weed out the beneficiaries and in the event it was impracticable to weed out the beneficiaries then only, the entire selection process would have been cancelled. The respondent No. 4 while passing the impugned order dated 8.4.2016 has failed to consider the law laid down by the Hon’ble Apex Court in the case of Union of India v. Rajesh P.U. Puthuvalnikathu and another, 2003(7) SCC 285 , wherein it has been laid down that it is not advisable to cancel the selection en bloc when it can be ascertained as to who were the beneficiaries of the irregularity (if any) and who were not. Relevant paragraphs of the judgment read as under: “In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly and justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual consideration throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situated. In short the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such Dickinson to be irrational.” 13. In Joginder Pal’s case (Supra), the Apex Court held that first an attempt should have been made to find out as to whether cases of the candidates, who were tainted could be segregated from those who were unblemished. In Joginder Pal’s case (Supra), the Apex Court held that first an attempt should have been made to find out as to whether cases of the candidates, who were tainted could be segregated from those who were unblemished. Clubbing together tainted as well as non-tainted persons remitted in clubbing together, two unequal classes and it amounted to violation of Articles 14 and 16 of the Constitution of India. 14. The issue of entire selection process having been vitiated would have arisen only, if the findings of the Committee were that it was not possible to distinguish the cases of tainted from the non-tainted ones. The innocent persons cannot be punished on the whims of the authorities. One must not forget that the selection and appointment in the State service is made in accordance with State Service Rules framed under Article 309 of the Constitution of India. It cannot be cancelled on the sweet will of an authority. An advertisement was made and selection Committee was constituted with the approval of the competent authority. The detail reasons for cancellation of entire selection should have been mentioned but the only ground taken in the impugned order dated 8.4.2016 is that Dr Ved Prakash Sharma, who was the member of the selection committee did not inform about participation of the his son in the interview, which has vitiated the entire selection process. The reason so assigned in the impugned order is contrary to the stand taken in the counter-affidavit wherein it has been mentioned that that a Committee consisting of Chief Development Officer, Chief Medical Officer, Chief Medical Superintendent, Superintendent Community Health Centre [ minority member], Dr Jagdish Singh and Dr Mukesh Matenhelia was constituted. The said Interview Committee conducted interviews for all other posts except the post of Medical Officer, Blood Bank as it was noticed that one Dr Vaibha Sharma, who had applied for the post of Medical Officer,Blood Bank is the son of Dr Ved Prakash Sharma. It has been clarified that for the post of Medical Officer, Blood Bank marks were awarded by only four members of the Interview Committee. 15. At this juncture, it would be useful to mention that the Apex Court in the case of Inderpreet Singh Kahlon v. State of Punjab, 2006 (11) SCC 356 , has held that it is imperative at the hands of the State to observe certain principles. 15. At this juncture, it would be useful to mention that the Apex Court in the case of Inderpreet Singh Kahlon v. State of Punjab, 2006 (11) SCC 356 , has held that it is imperative at the hands of the State to observe certain principles. These principles are (1) to establish satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) to determine the question that the illegalities committed go to the root of the matter which vitiate the entire selection process. Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) whether the sufficient material present enabled the State to arrive at a satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt. 16. Thus from the aforesaid legal proposition it is clear that where from out of selectees, it was possible to weed out the beneficiaries of the irregularities or illegalities, there was no justification in law to deny appointment to the selected candidates whose selection was not found to be, in any manner, vitiated for anyone or the other reasons. The en bloc cancellation is neither justified nor allowable. 17. In the instant case, from the material on record, it is abundantly clear that no such exercise was conducted by the opposite parties and by a single pen of stroke, entire selection process has been cancelled. In view of the discussions made above, impugned order dated 8.4.2016, which is also impugned in the connected writ petitions also, is liable to be quashed. Accordingly, all the writ petitions succeed and are allowed. Impugned order dated 8.4.2016 is hereby quashed. A writ of mandamus is issued commanding competent authority to pass appropriate fresh orders in accordance with law considering the findings recorded in this judgment.