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2019 DIGILAW 2780 (ALL)

Ram Shyam v. State of U. P.

2019-12-13

RAJESH SINGH CHAUHAN

body2019
JUDGMENT : Rajesh Singh Chauhan, J. 1. Heard Sri A.P. Singh, learned Senior Advocate, assisted by Sri Amarendra Pratap Singh, Sri D.R. Misra and Sri Waseeq Uddin Ahmed, learned counsel for the petitioners as well as Sri Ramesh Kumar Singh, learned Additional Advocate General of U.P. assisted by Sri Rakesh Vajpayee, learned Addl. Chief Standing Counsel and Sri Ashutosh Singh, learned Standing Counsel for the State-respondents. 2. Since the identical question of law and facts are involved in the bunch of writ petitions and the learned counsel for the parties are agreeable that these writ petitions may be decided by a common judgment, therefore, the aforesaid writ petition are being decided by a common judgment. 3. The writ petition bearing Service Single No. 17159 of 2019; Ram Shyam & others vs. State of U.P. & others being the leading writ petition of this bunch, therefore, the facts of this writ petition are being dealt with. 4. By means of this writ petition, the petitioners have initially assailed the order dated 06.06.2019 whereby the petitioners have been reverted to Class-IV post, which are contained as Annexure Nos. 1 and 12 to the writ petition. Thereafter, by means of amendment the petitioners have assailed various orders of reversion/ posting of the petitioners pursuant to the order dated 06.06.2019 and those orders have been annexed with the writ petition as Annexure Nos. 13 to 24. 5. Shearing off all the unnecessary details of the present issue, some relevant facts are being considered. 6. All the petitioners were working on Class-IV posts in the department in question i.e. in the Consolidation Department and were appointed between the period of 1983 to 1998. 7. The aforesaid department has decided to fill-up several vacancies of Group-C posts i.e. Junior Assistant in the department under promotional quota and for that purpose the Selection Committee of three members was constituted. Accordingly, for filling up 70 posts of Junior Assistant, Group-C posts, were earmarked and the aforesaid committee started requisite exercise of which the Additional Director of the Department was the Chairperson. 8. On 21.12.2018, a letter was issued from the office of the Consolidation Commissioner to the Assistant Director (Employment), Lucknow for appointing / nominating an expert for conducting the requisite typing test fixing date as 26.12.2018 and 27.12.2018. 9. 8. On 21.12.2018, a letter was issued from the office of the Consolidation Commissioner to the Assistant Director (Employment), Lucknow for appointing / nominating an expert for conducting the requisite typing test fixing date as 26.12.2018 and 27.12.2018. 9. Pursuant to the aforesaid letter dated 21.12.2018, a letter dated 24.12.2018 was issued by the Assistant Director (Employment), Lucknow to the Consolidation Commissioner nominating one Sri Ashok Kumar Yadav (Instructor Steno) as an expert for conducting the typing test. 10. All the petitioners appeared in the aforesaid typing test on 26.12.2018 and 27.12.2018 and qualified the said type test successfully. After qualifying the typing test, the petitioners were subjected to written test and interview and all the 70 persons have qualified the written test and the interview on 11.01.2019 and thereafter there were permitted to submit their respective joining on 16.01.2019 on the promotional post of Junior Assistant. The respective promotion orders dated 16.01.2019 itself reveals that the aforesaid promotion is an ad hoc promotion and they shall remain on probation for the period of two years. 11. It appears that various complaints have been made against the aforesaid selection in question regarding bungling in typing test. Therefore, the preliminary inquiry was conducted to verify the allegations, prima-facie, of the complaints and after having some satisfaction of those complaints the Joint Director of Consolidation issued an order dated 03.04.2019 directing all the Settlement Officers of Consolidation, U.P. for conducting the re-typing test of all the aforesaid 70 persons on 05.04.2019 at 10:00 A.M. in the Government Industrial Training Institute, Aliganj, Lucknow. 12. The aforesaid order dated 03.04.2019 was challenged by some persons by filing writ petition bearing Writ Petition No. 10079 (S/S) of 2019; Samay Singh and others vs. State of U.P. & others and this Court vide order dated 10.04.2019 did not grant any interim order and observed that if the petitioners appeared before re-typing test pursuant to the order dated 03.04.2019, the same shall be subject to further order of this Court. 13. It appears that the re-typing test was scheduled to be held on 10.04.2019 and information to that effect had been given to all the candidates except two candidates who had switched off their Mobile Phone and became absent from their office. Out of 68 candidates, only one candidate appeared for re-typing test on 05.04.2019 and the typing test was conducted. It appears that the re-typing test was scheduled to be held on 10.04.2019 and information to that effect had been given to all the candidates except two candidates who had switched off their Mobile Phone and became absent from their office. Out of 68 candidates, only one candidate appeared for re-typing test on 05.04.2019 and the typing test was conducted. Since the selected candidates were absent on the scheduled date, therefore, the decision was taken to fix another date for re-typing test for 11.04.2019 and the necessary information was again given to all the candidates. Thereafter, the retype test was conducted on 11.04.2019 in the Government Industrial Institute, Aliganj, Lucknow in which 48 candidates appeared and their re-type test was conducted. Thereafter, again re-type test was scheduled on 15.04.2019 for those candidates who had not appeared in re-typing test on 05.04.2019 and 11.04.2019. 14. The aforesaid typing test was conducted under the Videography so that no irregularities or bungling could take place. As per the result of the re-type test it was found that no candidates were having minimum eligibility of typing speed at the rate of 25 wards per minute. It was found that 40 candidates' typing speed was 'Zero' and accordingly all the 70 candidates could not pass the typing test who were earlier selected by the Selection Committee under the Chairmanship of one Sri Surendra Singh Yadav, against whom, the departmental inquiry was initiated and his services were dispensed with later on. 15. Pursuant to the result of re-typing test, the order dated 06.06.2019 has been passed on behalf of the Commissioner, Consolidation cancelling the promotional order of all 70 persons and those were reverted on Class-IV post vide order dated 07.06.2019, which are impugned herein vide Annexure Nos. 12 to 24 respectively. It is also noted that these orders dated 07.06.2019 are in respect of the petitioners of writ petition in re: Ram Shyam (supra). However, vide order dated 07.06.2019 all the 70 persons, who are petitioners in the bunch of writ petitions, have been reverted in compliance of order dated 06.06.2019. 16. The grounds to assail the aforesaid orders are mainly two folds, firstly, before passing the orders dated 06.06.2019 and 07.06.2019 no opportunity of hearing of any kind whatsoever has been provided to these 70 persons. 16. The grounds to assail the aforesaid orders are mainly two folds, firstly, before passing the orders dated 06.06.2019 and 07.06.2019 no opportunity of hearing of any kind whatsoever has been provided to these 70 persons. Secondly, there is no statutory prescription for promoting Class-IV employees on the post of Junior Assistant by conducting the typing test inasmuch as the typing test is not a mandatory qualification. Besides, when the earlier typing test was conducted and the petitioners were qualified then there was no occasion to conduct the re-type test within a short span of time i.e. within a period of three months and the impugned exercise of conducting the re-type test has been carried out to oust the petitioners from promotional post without any legal basis and cogent reasons to that effect. 17. The State-respondents has filed the counter affidavit indicating therein that since the complaints regarding serious irregularities and bungling in typing test conducted earlier on 26.12.2018 and 27.12.2018 were received and the detailed inquiry was conducted wherein the allegation of bribe and bungling have been verified, therefore, it was necessary to conduct the re-typing test so as to verify the allegations. 18. Learned Additional Advocate General has drawn attention of this Court towards para-10 of the findings of Inquiry Officer wherein a chart has been prepared, which reveals the marks awarded to all 70 persons earlier and in the subsequent type test. This Court is surprised to see that as many as 40 persons, who were earlier qualified having more than required typing speed i.e. 25 words per minutes have been awarded 'Zero' marks. Only 7 persons could achieve the speed more than 10 words per minutes. Therefore, learned Additional Advocate General has submitted that earlier type test was nothing but an eye wash and for monetary consideration those 70 persons were declared qualified. 19. Learned Additional Advocate General has further submitted that if someone has qualified any examination by adopting fraudulent tactics, the entire selection shall vitiate and no opportunity of hearing would be required in that case. However, learned Additional Advocate General has submitted that in the present case the petitioners were fully aware that their earlier type test has come within the cloud of suspicion, therefore, they will have to appear in the retyping test and their selection shall be subject to result of re-type test. However, learned Additional Advocate General has submitted that in the present case the petitioners were fully aware that their earlier type test has come within the cloud of suspicion, therefore, they will have to appear in the retyping test and their selection shall be subject to result of re-type test. Therefore, the petitioners were aware that they will have to give performance in the type test strictly as per the required speed and if they fail to achieve such required speed in typing their promotion can be cancelled. Pursuant to the aforesaid notice, the petitioners appeared before re-typing test and were disqualified. Therefore, there was no need to provide a separate notice to that effect when they have been informed that they could not achieve that much speed which was required as per the statutory prescription. Even otherwise, as per the learned Additional Advocate General the principles of natural justice cannot be applied in straight jacket formula and in a case where opportunity of hearing would have made no difference to the outcome, it may not be necessary to strike out the decision. 20. The learned Additional Advocate General has further submitted that the petitioners may not legally take the ground that the rules do not prescribe the type test if any promotion from Class-IV to Junior Assistant is made, for the simple reason that in earlier type test the petitioners appeared without any protest and without raising any objection to that effect and they qualified the said examination. Therefore, the petitioners were not aggrieved out of type test which was conducted earlier. However, when re-typing test was conducted and they were declared unsuccessful, they raised objection that the type test is not prescribed under the Rules. 21. Sri R.K. Singh, learned Additional Advocate General has submitted that in exercise of powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of all existing rules and orders on the subject, his Excellency the Hon'ble Governor has been pleased to make the rules in the name of the Uttar Pradesh Government Department Ministerial Cadre Service Rules, 2014 (here-in-after referred to as the "Rules, 2014") for regulating the recruitment and condition of service of persons appointed to the ministerial cadre of the State Government. Sri Singh has referred Rule 4 of the Rules, 2014, which provided 'Overriding' effect. Sri Singh has referred Rule 4 of the Rules, 2014, which provided 'Overriding' effect. Rule 4 of the Rules, 2014 reads as under:- "4. These rules shall have effect notwithstanding anything to the contrary contained in any other rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force." Therefore, after coming the aforesaid rule enforce all other statutory prescriptions contrary to this rule shall lose its effect. 22. Part-III of the aforesaid Rules, 2014 describes 'Recruitment'. Rule 7 (1) thereof prescribes the source of recruitment for the post of Junior Assistant, which is being reproduced here-in-below:- "7. Recruitment to the various categories of posts in the service shall be made from the following sources: (1) Junior Assistant (i) Eighty percent by direct recruitment. (ii) Fifteen percent by promotion from amongst substantively appointed Group 'D' employees who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto and who possess the knowledge of typewriting, in accordance with the Uttar Pradesh Subordinate Officers Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time. (iii) Five percent by promotion from amongst substantively appointed Group 'D' employees who have passed the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto and who possess the knowledge of typewriting, in accordance with the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time." Therefore, Rule 7(1) of the Rules, 2014 clearly provides that the promotion amongst the Group 'D' employees can be made from the candidates who have possessed High School Examination from U.P. Board or equivalent and possessed the knowledge of typewriting, in accordance with Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (here-in-after referred to as the "Rules, 2001"). 23. Rule 8 of the Rules, 2001 prescribes the appointment by way of promotion. Sub-rule 2 of rule 8 of the Rules, 2001 prescribes the modality for making selection on promotional post which consist written test, interview and assessment of Character Roll. 23. Rule 8 of the Rules, 2001 prescribes the appointment by way of promotion. Sub-rule 2 of rule 8 of the Rules, 2001 prescribes the modality for making selection on promotional post which consist written test, interview and assessment of Character Roll. The second proviso of Rule 8(2) of the Rules, 2001 categorically provides that if the type test is requisite qualification to be promoted on promotional post, the required typing speed would be 25 words per minutes in Hindi typing. Therefore, joint reading of Rule 7(1) of the Rules, 2014 and Rule 8(2) of the Rules, 2001 and its second proviso clause would categorically made it crystal clear that if any Group 'D' employee is to be promoted on the post of Junior Assistant he/ she must have possessed the High School Examination from U.P. Board or equivalent and shall possessed the knowledge of typewriting having speed of 25 words per minutes in Hindi typing. Therefore, in the present case the petitioners may not legally say that type test was conducted without having any rules to that effect but as a matter of fact the type test have been conducted strictly in accordance with law. 24. Heard learned counsel for the parties and perused the material available on records. 25. Firstly, I shall deal the first ground to challenge the impugned orders that the impugned orders dated 06.06.2019 and 07.06.2019 have been passed without affording any opportunity of hearing. On 03.04.2019, the Joint Director of Consolidation issued an order directing all the Settlement Officers of Consolidation, U.P. for conducting the retype test of all the aforesaid 70 persons fixing the date for 05.04.2019. The petitioners were made aware about the order dated 03.04.2019 and most of the petitioners have challenged that order by filing writ petition before this Court. One of the writ petition is bearing Writ Petition No. 10079 (S/S) of 2019; Samay Singh & others vs. State of U.P. & others, wherein this Court did not grant any interim order on 10.04.2019, however observed that if the petitioners appeared in the type test, he result thereof shall be subject to further order of this Court. Not only the above, all the petitioners appeared in type test on various dates i.e. 05.04.2019, 10.04.2019 and 11.04.2019. Not only the above, all the petitioners appeared in type test on various dates i.e. 05.04.2019, 10.04.2019 and 11.04.2019. It has been noted that all the petitioners were informed personally about the aforesaid type test and for convenience of the petitioners three dates i.e. 05.04.2019, 10.04.2019 and 11.04.2019 were fixed so that all the petitioners could appear in the type test. The aforesaid type test was duly video graphed so that the possibility of any bungling or irregularities could be ruled out. The full fledged inquiry was conducted against all the erring persons who were involved in earlier selection and appropriate orders have been passed against those persons but that is not the subject matter of this writ petition, therefore, no observation to that effect is being made herein. 26. An exhaustive chart has been prepared by the Inquiry Officer showing the earlier marks being obtained by the petitioners and the marks which have been obtained by them in re-type test. There is a drastic difference of the marks inasmuch as 40 candidates out of 70 persons know nothing about typing as they obtained 'Zero' marks. Few persons could obtain more than 10 marks but below 20 marks. Therefore, it is clear that since the petitioners do not want to appear in retyping test, therefore, they assailed the direct of re-typing test. But when they could not get success by not getting interim order from this Court, they had to appear in re-type test and declared unsuccessful for the reasons mentioned above. 27. In the given circumstances, apprising the petitioners that their earlier type test had not been conducted properly, therefore, they will have to appear again in retyping test is proper information in conformity with the principles of natural justice. The petitioners were aware that if they do not qualified the type test, their earlier promotion would not sustain. Knowing fully well about this fact the petitioners appeared in retyping test and have been declared unsuccessful. The final result of retyping test was the deciding factor for promotion and the final result of retyping test compelled the Competent Authority to cancel the promotion order of the petitioners vide order dated 06.06.2019 and also the order dated 07.06.2019 reverting the petitioners to Group 'D' posts. 28. The final result of retyping test was the deciding factor for promotion and the final result of retyping test compelled the Competent Authority to cancel the promotion order of the petitioners vide order dated 06.06.2019 and also the order dated 07.06.2019 reverting the petitioners to Group 'D' posts. 28. This is the trite law, as per the learned Additional Advocate General, that rule of natural justice cannot be applied in straight jacket formula and in case where an opportunity of hearing would have made no difference to the outcome, it would be unnecessary to strike down the decision. 29. In the present case, it would have been futile exercise had the prior notice before cancelling the promotion orders of the petitioners been given inasmuch as there was no scope to change the final outcome in the petitioners' matter. 30. The findings of the Inquiry Officer reveal that the earlier type test was conducted fraudulently and the marks so obtained by the petitioners in retype test testify such allegations inasmuch as had any candidate obtained 26, 27, 28 and 30 marks in earlier type test, he would not secure 'Zero' marks. Therefore, it appears that in the name of type test, the fraudulent tactic would have been adopted. In view of the aforesaid facts, if the foundation of any selection process is based on fraud or fraudulent tactic, the entire selection would vitiate and even the opportunity of hearing would not be required. 31. The Hon'ble Supreme Court in the s in re: A.V. Papayya Sastry and others vs. Govt. of A.P. & others reported in: (2007) 4 SCC 221 , S.P. Chengalvarayya Naidu (DEAD) By Lrs. vs. Jagannath (DEAD) By Lrs. and others reported in (1994) 1 SCC 1 and United India Insurance Co. Ltd. vs. Rajendra Singh and others reported in (2003) 3 SCC 581 has held that the fraud vitiates all judicial acts and proceedings. 32. of A.P. & others reported in: (2007) 4 SCC 221 , S.P. Chengalvarayya Naidu (DEAD) By Lrs. vs. Jagannath (DEAD) By Lrs. and others reported in (1994) 1 SCC 1 and United India Insurance Co. Ltd. vs. Rajendra Singh and others reported in (2003) 3 SCC 581 has held that the fraud vitiates all judicial acts and proceedings. 32. So far as the second ground to challenge the impugned orders is concerned that there is no statutory prescription for promoting Class-IV employees to the post of Junior Assistant by conducting type test, I shall refer Rule 7(1) of the Rules, 2014, which categorically provides that Group 'D' employee can be considered for promotion on the post of Junior Assistant if such employee has possessed High School Examination with U.P. Board or equivalent and possessed the knowledge of typewriting in accordance with Rules, 2001. Rule 8(2) of the Rules, 2001 prescribes the procedure of selection through promotion and the second proviso thereof clearly prescribes that if the knowledge of typewriting is requisite condition to be promoted at a particular post whether of Typist or other post, the candidate must have typing speed at the rate of 25 words per minutes in Hindi typing. The joint reading of Rule 7(1) of the Rules, 2014 and Rule 8(2) of the Rules, 2001 and its second proviso clause would categorically made it crystal clear that if any Group 'D' employee is to be promoted on the post of Junior Assistant he/ she must have possessed the High School Examination from U.P. Board or equivalent and shall possessed the knowledge of typewriting having speed of 25 words per minutes in Hindi typing. Therefore, in the present case the petitioners may not legally say that type test was conducted without having any rules to that effect but as a matter of fact the type test have been conducted strictly in accordance with law. 33. Besides, if the petitioners were very much sure that the type test is not a mandatory qualification to be promoted on the post of Junior Assistant from Group 'D' post, they should have not appeared in the type test which was conducted earlier on 26.12.2018 and 27.12.2018 and have qualified that examination. 33. Besides, if the petitioners were very much sure that the type test is not a mandatory qualification to be promoted on the post of Junior Assistant from Group 'D' post, they should have not appeared in the type test which was conducted earlier on 26.12.2018 and 27.12.2018 and have qualified that examination. The record reveals that the petitioners have not even raised any objection to that effect in earlier occasion nor protested for the same but were happily appeared in the type test. It appears that perhaps they might be knowing the result of type test in advance. 34. The case laws so cited by Sri A.P. Singh, learned Senior Advocate, Sri D.R. Mishra and Sri Waseeq Uddin Ahmed, learned counsel for the petitioners shall not come to rescue the petitioners for the reason that the facts and circumstances of the present case and the cases so cited by the learned counsel for the petitioners are different. 35. In the case of State of U.P. & others vs. Umesh Chandra Srivastava in Special Appeal (Defective) No. 477 of 2010, the Division Bench of this Court dismissing the special appeal of the State Government vide order dated 20.07.2010 has observed that the Rule 8(2) of the Rules, 2001 only provides for situation where in the event the recruitment is made for the post of typist or a post for which Hindi Typewriting is essential qualification but for the post of Lower Grade Clerk which was subject matter of that petition does not require the knowledge of typewriting. However, in the present case, the Rule 7(1) of the Rules, 2014 categorically provides that for the post of Junior Assistant the knowledge of typewriting is must. Likewise, the other cases so cited are not applicable in the issue in question. 36. Therefore, in view of the above, I am of the considered opinion that there is no illegality or infirmity in the orders dated 06.06.2019, passed by the Consolidation Commissioner, U.P., Lucknow and 07.06.2019, passed by the concerning Settlement Officer Consolidation of different districts of Uttar Pradesh. 37. Accordingly, the writ petitions fail and are hereby dismissed. 38. No order as to the costs.