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Rajasthan High Court · body

2018 DIGILAW 2025 (RAJ)

Narmada Devi v. State of Rajasthan

2018-10-03

DINESH MEHTA, SANGEET LODHA

body2018
JUDGMENT 1. This intra court appeal is directed against order dated 15.5.18 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellants questioning the selection process undertaken by the respondent-Municipal Board, Khudala Falna vide advertisement dated 25.5.12 for recruitment on the post of Safai Employees, has been disposed of with the observations and directions as under: "In such circumstances, this Court, without passing any order regarding legality or illegality of complete exercise of employment in light of the disputed questions of facts raised by the parties, deem it appropriate to dispose of this writ petition with a direction to the respondents to constitute a committee consisting of two persons viz. (1) Deputy Director (Regional), Jodhpur and (2) The Legal Officer for redressal of the disputes. These two persons holding the said posts have been suggested by Dr. Pratistha Dave, learned government counsel. The persons who have been already appointed shall also have a right to go before the authority envisaged to go into the details of the irregularities raised by the petitioners. The petitioners shall make a fresh representation consolidating all issues within a period of four weeks from today and the same shall be placed before the aforementioned authorities who shall require to pass reasoned order on each and every issue strictly in accordance with law within a period of eight weeks from receiving representation. Since the private respondents have already been appointed, therefore, at this stage of employment this Court do not wish to disturb their employment and direct that the committee constituted may consider all aspects of the matter but the employees already appointed shall not be ousted. However, in case the claim of the petitioners is found to be lawful and meritorious as they have already participated in the lottery, then they shall be considered for appointment on the posts already lying vacant or to be created by the respondents strictly in accordance with law. The rights of already selected candidates shall be protected in light of the fact that they have already completed their probation period and Safai Karamchari is a post which is at the last pedestal of public employment. The protection of this order shall be only for the 39 candidates who were selected in the lottery process and are in continuous service. The protection of this order shall be only for the 39 candidates who were selected in the lottery process and are in continuous service. All consequential benefits to the employees already serving shall be given by the respondents. The committee shall give its final outcome within a period of 12 weeks from today. The outcome of the committee constituted shall be utilized by the State Government to take action against the officers concerned who have conducted the recruitment process, if anything is found to be wrong in the process by the committee constituted by this Court. The committee shall also consider entitlement of the petitioners for appointment on the said post." 2. The relevant facts are that the State Government vide advertisement dated 25.5.12 notified 11376 vacancies of the post of Safai Employees in various Municipalities to be filled up in accordance with the procedure laid down under the Rajasthan Municipalities (Safai Employees Service) Rules, 2012 ("Rules of 2012"). The vacancies of the said post in the respondent Municipal Board, Khudala Falna were shown as 22. The appellants herein and Others applied for appointment on the said post. According to the appellants, 106 candidates were declared eligible for interview, out of them 22 persons were selected in the first phase of interview and 12 persons were declared successful in the second phase. After issuance of the select list, the Executive Officer of the Municipal Board, vide communication dated 12.9.13 informed the Director, Local Bodies, that the selection proceeding of recruitment on 34 posts of Safai Employees does not bear signature of the Chairman and Vice Chairman and accordingly sought guidance as to whether appointments should be accorded or not. Pursuant thereto, vide communication dated 4.7.14, the Director, Local Bodies informed that in absence of signatures of the Chairman and Vice Chairman, the select list is not valid and no appointment could be accorded on that basis. In these circumstances, the candidates selected were not accorded appointment. In the meantime, by way of amendment of the Rules of 2012, the lottery was included as one of the permissible modes of selection of Safai Employees. Pursuant to the directions issued by the Director, Local Bodies, vide communication dated 20.8.14, the Executive Officer, Municipal Board, Khudala Falna notified the programme for selection by lottery and 29.10.14 was notified as the date for conducting lottery. Pursuant to the directions issued by the Director, Local Bodies, vide communication dated 20.8.14, the Executive Officer, Municipal Board, Khudala Falna notified the programme for selection by lottery and 29.10.14 was notified as the date for conducting lottery. However, lottery was not conducted on the date notified and later vide communication dated 9.1.15, the candidates were informed that the lottery shall be conducted on 14.1.15 at 2.00 PM. On 5.2.15, select list of 39 candidates was issued, out of which, 22 persons were accorded appointment. 3. The appellants questioned the legality of the selection on various grounds, such as, the persons who even did not apply for appointment and had not appeared for interview in the first phase of selection process, were accorded appointment; the persons whose applications were rejected for want of experience certificate/marriage certificate, their names also appeared in the select list and the person who is habitual offender was also included in the select list and accorded appointment. 4. At this stage, pursuant to the letter dated 24.3.15 of the Deputy Director, Local Bodies, the respondent Municipal Board proceeded to take steps to make appointment on 12 posts of Safai Employees though not notified initially but were lying vacant as per the sanctioned strength. 5. On 9.9.15, the learned Single Judge of this Court while issuing notices, passed an interim order restraining the respondents from issuing any appointment orders on 12 posts lying vacant. 6. The respondents filed a reply to the petition taking the stand that the select list issued on 12.9.13 was not signed by the Chairman and Vice Chairman of the selection committee, and therefore, the same was not in accordance with the rules and subsequently, since the lottery was included as mode of selection by way of amendment in the Rules of 2012, the selection was made by way of lottery. According to the respondents, in the process of the lottery, list of 103 candidates was prepared, out of which, 58 candidates were found eligible for participation in lottery and out of these 58 eligible candidates, 39 candidates were selected in the lottery conducted by the respondent Municipal Board. The respondents in their reply attempted to justify the inclusion of the persons in the lottery conducted, who according to the appellants were included in the process of selection in illegal and arbitrary manner. The respondents in their reply attempted to justify the inclusion of the persons in the lottery conducted, who according to the appellants were included in the process of selection in illegal and arbitrary manner. Regarding the appointment of the 12 persons in addition to 22 persons already appointed, the respondents have taken the stand that there are 44 posts of Safai Employees sanctioned in the respondent Municipal Board, out of which 22 candidates were accorded appointment in addition to the persons already working. According to the respondents, 40 posts have been filled up and only 4 posts of Safai Employees are lying vacant. 7. The appellants by way of rejoinder to the reply have reiterated the allegations regarding the illegalities committed by the respondents in selecting the persons who did not apply for the appointment or whose applications were rejected on account of their ineligibility. 8. Learned counsel appearing for the appellants contended that there was no occasion for the learned Single Judge to constitute the committee to inquire into the allegations of illegalities and irregularities committed in the selection process. It is submitted that even if the order passed by the learned Single Judge directing inquiry in to the allegations is found to be justified, the learned Single Judge could not have passed an order protecting the appointments of the persons who had procured the appointment by adopting illegal means. Learned counsel submitted that the learned Single Judge has seriously erred in observing that the candidates appointed have completed their probation and they are entitled to all consequential benefits. Learned counsel would submit that a person who had obtained the appointment by adopting illegal means, cannot be confirmed and deserves to be ousted from service. Learned counsel submitted that if the appointments already accorded are protected, then, there is no purpose in conducting the inquiry into the allegations made inasmuch as, there will be no vacancy available against which the candidature of appellants and their likes could be considered for appointment and thus, the judgment passed by the learned Single Judge deserves to be set aside. 9. On the other hand, Dr. Pratishtha Dave, appearing for the official respondents, submitted that the inquiry shall be conducted as directed by the learned Single Judge and appropriate decision shall be taken on the basis of the findings arrived at. 9. On the other hand, Dr. Pratishtha Dave, appearing for the official respondents, submitted that the inquiry shall be conducted as directed by the learned Single Judge and appropriate decision shall be taken on the basis of the findings arrived at. It is submitted that the matter with regard to confirmation of the employees is required to be considered by the respondents in accordance with the rules and therefore, the same is required to be left to be decided by the authorities concerned. 10. Mr. M.A. Siddiqui, learned counsel appearing for the private respondents, submitted that the application forms received were scrutinized by the Municipal Authorities and the private respondents were offered appointment after following the due process of law, which has rightly been not interfered with by the learned Single Judge. It is submitted that the appellants who have participated in the selection process, cannot be permitted to question the same, once they are not selected for appointment to the post and thus, the writ petition was liable to be dismissed on this count alone. Learned counsel submitted that the persons appointed have already completed their period of probation and therefore, at this stage, they cannot be ousted from service without there being any fault on their part. 11. We have considered the rival submissions and perused the material on record. 12. Indisputably, in the first instance, the recruitment was sought to be made as per the procedure laid down under the Rules of 2012 by way of interview. According to the appellants, 103 candidates were interviewed in two phases; in the first phase, 22 candidates were selected and in the second phase, 12 candidates were selected. The stand taken by the appellants as afore said, is not denied by the respondents in their reply. The only variance in this regard which has come on record is that as per the communication dated 12.9.13 of the Executive Officer, Municipal Board, Khudala Falna, addressed to the Director, Local Bodies, in two phases of interviews conducted on 21.6.13 and 27.6.13, 108 candidates were interviewed and not 103 candidates as pleaded by the appellants and the respondents in their pleadings. It is not in dispute that pursuant to the select list prepared as aforesaid, no appointments were accorded to the selected candidates, inasmuch as, the selection proceedings were not signed by the Chairman and Vice Chairman and therefore, the same was not considered to be valid. 13. It is also a common ground between the parties that later, the respondents proceeded to make selections by way of lottery. According to the appellants, all the 103 candidates were included in the lottery conducted, but according to the respondents, out of 103 candidates, only 58 candidates found eligible were included in the lottery conducted. Further, it is not clarified by the respondents as to why the candidature of the candidates other than 58 candidates alleged to have been included in the lottery, was rejected. The list of 58 candidates alleged to have been prepared is also not placed on record. 14. The respondents in their reply have taken the stand that out of 58 eligible candidates 39 candidates were selected by way of lottery. As noticed above, by way of interview, 34 candidates were selected for appointment on the post of Safai Employees against the existing vacancies. But then, in the reply filed, the respondents have taken the stand that there are 44 posts of Safai Employees sanctioned in the Municipal Board, out of which 22 candidates were accorded appointment in addition to the persons already working. Further, according to the respondents, 40 posts have been filled up and only 4 posts of Safai Employees are lying vacant. 15. The respondents have not clarified the position of vacancies as on the date, the selection was sought to be made by way of interview as also when the process of lottery was adopted as mode of selection. 16. Thus, the position with regard to the actual number of the candidates who applied for the appointment on the post, the actual number of vacancies and the persons selected is not clear. That apart, it is not clear that if all the candidates who had applied were interviewed, why while conducting the selection by way of lottery, the candidates other than 58 candidates were found ineligible and not included in the process of lottery. 17. That apart, it is not clear that if all the candidates who had applied were interviewed, why while conducting the selection by way of lottery, the candidates other than 58 candidates were found ineligible and not included in the process of lottery. 17. A perusal of the order under appeal reveals that the learned Single Judge found that the allegations levelled by the appellants regarding illegalities committed involve adjudication of disputed question of facts and therefore, the scrutiny of the complete selection process is not feasible in writ jurisdiction. Accordingly, the learned Single Judge has constituted a committee of two persons i.e. Deputy Director (Regional) Local Bodies and the Legal Officer, to inquire into the irregularities pointed out by the appellants. The appellants are directed to make a fresh representation raising all issues before the committee who in its turn is directed to pass reasoned order on each and every issue strictly in accordance with law within a period of eight weeks. The directions are issued that the persons appointed shall also have right to go before the authorities appointed to inquire into the irregularities. 18. Taking into consideration the facts and circumstances of the case noticed above, where several disputed questions of facts were involved, in the considered opinion of this Court, the learned Single Judge has committed no error in constituting the committee and issuing directions to inquire into the allegations of illegalities and irregularities committed in the selection process. 19. But then, it is to be noticed that while directing inquiry into the allegations levelled regarding illegalities committed, the learned Single Judge has directed that if the appellants claim is found lawful and meritorious, they shall be considered for appointment on the posts already lying vacant or to be created by the respondents strictly in accordance with law. That apart, the learned Single Judge has protected the appointments already made and directed that the committee constituted may consider all aspects of the matter, but the employees already appointed shall not be ousted, as they have already completed their probation period. 20. In our considered opinion, once the learned Single Judge has arrived at the finding that the irregularities committed are required to be inquired into and an appropriate order is required to be passed while considering the issues raised by the appellants herein, the appointments accorded could not have been protected irrespective of the outcome of inquiry. 20. In our considered opinion, once the learned Single Judge has arrived at the finding that the irregularities committed are required to be inquired into and an appropriate order is required to be passed while considering the issues raised by the appellants herein, the appointments accorded could not have been protected irrespective of the outcome of inquiry. Obviously, the fate of the appointments accorded shall depend upon the outcome of the inquiry to be conducted by the committee constituted by the learned Single Judge and if any of the persons appointed is beneficiary of illegal appointment, there is no reason why he should be retained in service. 21. There is yet another aspect of the matter. The learned Single Judge has protected appointments accorded to the 39 candidates, whereas, according to the respondents only 22 candidates have been accorded appointment out of 39 candidates whose names were included in the select list after conducting lottery. Further, if there were only 22 vacancies at the relevant time as pleaded by the respondents and their appointments are protected as directed by the learned Single Judge, then, this exercise of the inquiry being conducted would not yield any result inasmuch as, even if the appointments accorded to any of the persons selected is found illegal, the candidature of the appellants herein and their likes cannot be considered for appointment for want of vacancies relating to the recruitment in question and they cannot have any claim over the vacancies which have come into existence after the selection process being initiated on account of creation of new posts or otherwise. 22. For the aforementioned reasons, we are not in agreement with the view taken by the learned Single Judge in protecting the appointments accorded to the selected candidates irrespective of the outcome of the inquiry to be conducted by the committee constituted as aforesaid and therefore, the directions issued by the learned Single Judge to the extent of protecting appointments accorded to the selected candidates irrespective of outcome of the inquiry, deserves to be set aside. Further, on the facts and in the circumstances of the case, we consider it appropriate that outcome of the inquiry should be placed before the Director, Local Bodies, who should take a decision after due consideration of the finding of the inquiry and giving an opportunity of hearing to the appellants and the persons already appointed pursuant to the selection made by the respondent Municipal Board by way of lottery. 23. Accordingly, we direct that the allegations regarding illegalities and irregularities alleged to have been committed in the selection process shall be inquired into by the committee constituted by the learned Single Judge. The committee constituted shall submit the report after due inquiry before the Director, Local Bodies, Rajasthan who in its turn shall take a decision regarding the appointments made, after due considerations of the findings recorded by the committee and after giving an opportunity of hearing to the appellants herein and the persons appointed pursuant to the selection in question. Needless to say that if the selection process conducted is found to be unfair, illegal and arbitrary, the same shall be set at naught and the candidature of the persons including the appellants, who had applied pursuant to the advertisement issued as aforesaid, shall be considered afresh by adopting the appropriate mode of selection envisaged under the Rules of 2012. If appointment of any of the persons appointed is found to be illegal, his services shall be brought to an end and against the vacancies which remained unfilled and the posts falling vacant on account of termination of the services of the persons appointed illegally, the candidature of the candidates eligible shall be considered for appointment in accordance with the Rules of 2012. It is made clear that the persons aggrieved by the decision to be taken by the Director, Local Bodies pursuant to this order, shall be at liberty to question the legality thereof by availing the appropriate remedy available under the law. The process of inquiry pursuant to this order and the decision thereon by the Director, Local Bodies shall be completed within a period of eight weeks from the date of receipt of certified copy of this order. The directions issued by the learned Single Judge shall stand modified accordingly. 24. The special appeal is disposed of. No order as to costs.