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2022 DIGILAW 137 (ALL)

Sachin Singh v. State of U. P.

2022-02-02

RAJESH BINDAL, VIVEK VARMA

body2022
JUDGMENT : Vivek Varma, J. 1. Heard learned counsel for the appellants and learned Standing Counsel for the State-respondents. 2. This intra Court appeal arises from the judgment and order of learned Single Judge dated December 8, 2021 passed in Service Single No. 14021 of 2018 (Sachin Singh and Others vs. State of U.P. through Principal Secretary and Another) connected with two other petitions. The operative portion of the order of the learned Single Judge is reproduced hereunder: ''9. The only question which is involved in the writ petition is that what are the directions, which were given by this Court in its order dated 9.5.2017 passed in Writ Petition No. 7117(SS) of 2016? 10. Operative portion of the judgment dated 9.5.2017, has already been extracted hereinabove. From perusal of the judgment and order dated 9.5.2017, it is evident that this Court directed for holding a fresh enquiry into the allegations of malpractices in the examination and this Court also upheld the decision of the State Government to hold a fresh selection by appointing a new Agency. If the petitioners had any grievance against the said judgment, they should have challenged the said judgment or file a review. Principal Secretary has strictly acted in accordance with the order dated 9.5.2017 passed in Writ Petition No. 7117(SS) of 2016 and, therefore, this Court does not find any ground to interfere with the impugned order. 11. These writ petitions, being devoid of merit and substance, are hereby dismissed. 12. It is relevant to note that in the order dated 2.5.2018 age relaxation of three years was given. Since three years have gone by, therefore, the Government may consider for giving the age relaxation of 6 years to the candidates who had applied in pursuance to the advertisement for which the examination was held on 5.7.2015, which was cancelled vide order dated 16.12.2015. 13. Interim order, if any, stands vacated. 14. On the basis of enquiry report submitted by Director General of Medical Health Services, the responsibility must be fixed on the persons responsible for conducting earlier examination.'' 3. Brief facts of the case are that an advertisement was published by the Director General, Family Welfare, U.P. Lucknow/respondent No. 2 on November 19, 2012 inviting applications from the eligible candidates against 540 vacancies for selection of one year's training of Health Workers (Male). Brief facts of the case are that an advertisement was published by the Director General, Family Welfare, U.P. Lucknow/respondent No. 2 on November 19, 2012 inviting applications from the eligible candidates against 540 vacancies for selection of one year's training of Health Workers (Male). Pursuant to the said advertisement, the appellants also applied and appeared in the written examination held on July 5, 2015. Before declaration of result, a complaint was made by Sri Abdul Haq on July 8, 2015 to the Minister of Medical, Health and Family Welfare, U.P. alleging certain irregularities in the examination. On the said complaint, the concerned Minister directed the respondent No. 1 on July 8, 2015 to get an enquiry conducted by Director (Administration) Medical and Health Services, U.P. It was further directed that appropriate decision be taken on the basis of said enquiry report and till the appropriate decision is taken, the entire process of selection be deferred and the result be also not declared. 4. In compliance of the order dated July 8, 2015, Smt. Ritu Maheshwari, Director (Administration), Medical and Health Services, U.P. was appointed as Enquiry Officer for conducting the enquiry in the matter. The Enquiry Officer vide her order dated July 31, 2015 constituted a Three-Member Committee for examining the records and submission of report. The said Committee appears to have submitted a report on November 6/10, 2015 to the Director (Administration) who submitted her report to the State Government on November 18, 2015. On the basis of said report, the State Government passed an order dated December 16, 2015 whereby a decision was taken to cancel the written examination held on July 5, 2015 and to hold a fresh examination for the same. It was also directed 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 the relevant rules. 5. The order dated December 16, 2015 was challenged by means of Writ Petition No. 7117 (S/S) of 2016 (Ishtiyaq Ahmad and Others vs. State of U.P. through Principal Secretary, Department of Medical and Health and Others). During the course of proceedings, it was noticed by the writ Court that earlier also an enquiry report was prepared, which was modified and finally submitted on November 10, 2015. During the course of proceedings, it was noticed by the writ Court that earlier also an enquiry report was prepared, which was modified and finally submitted on November 10, 2015. Thus, there were two reports which were prepared by the Three-Member Committee. Taking into consideration, the entire facts of the case, the writ Court vide judgment and order dated May 9, 2017 quashed the order dated December 16, 2015 and allowed the writ petition with the following direction: ''The writ petition, resultantly, is allowed. The impugned order passed by the State Government on 16.12.2015, as is contained in Annexure 1 to the writ petition is hereby quashed. 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 5.7.2015 such as alleged belated receipt of the call letters and dispatch of the call letters to the candidates allegedly after the examination. 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. 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. There will be no order as to costs.'' 6. There will be no order as to costs.'' 6. In compliance of the aforesaid judgment dated May 9, 2017, the State Government instituted a fresh enquiry and after conducting the enquiry, the Enquiry Officer submitted its report dated February 8, 2018 to the respondent No. 1, which is annexed as Annexure SCA-4 to the supplementary counter-affidavit filed before the writ Court. Based on the said enquiry report, the State Government, after noticing the fact that out of 1,28,605 eligible candidates, only 17,394, i.e., 13.49% candidates have appeared in the examination, reiterated its decision to cancel the examination held on July 5, 2015 and decided to conduct a fresh examination. The State Government further granted age relaxation of three years, considering the facts that more than three years have been elapsed from the date of examination. 7. Learned counsel for the appellants submits that although the Enquiry Officer vide report dated February 8, 2018 noticed that time gap between dispatch of admit cards and holding of examination was not sufficient, however, taking into account the fact that vide publicity of the examination was done through newspapers and duplicate admit cards were distributed through special camps fixed for that purpose and since the facility of downloading the admit cards through official website of the department was also made available, the Enquiry Officer did not recommend for cancellation of the examination and as such, the respondent No. 1 exceeded his jurisdiction in passing an order for cancelling the examination and for conducting re-examination. 8. On the other hand, learned Standing Counsel submitted that most of the candidates appearing in the written examination belonged to the rural areas of the State of U.P., who had no information regarding the conduct of the examination and due to this reason the participation of the candidates in the written examination was very less in comparison to the total candidates, who were found to be eligible to appear in the examination, therefore, the decision taken by the State Government to cancel the examination is in the interest of large number of candidates, who have been deprived from participating in the written examination. The learned Single Judge has rightly dismissed the writ petition and the judgment does not require any interference by this Court. 9. The learned Single Judge has rightly dismissed the writ petition and the judgment does not require any interference by this Court. 9. Having heard learned counsel for the parties and perused the record, we find that it is not in dispute that out of 1,28,605 eligible candidates only 17,394 i.e. 13.49% candidates appeared in the examination. It has been averred in paragraph 9 of the counter-affidavit that most of the candidates appearing in the written examination belonged to the rural areas of the State of U.P. and the said fact has not been disputed in the rejoinder-affidavit. Now, once it is an admitted situation that most of the candidates belonged to the rural areas then the report of the Enquiry Officer, that wide publicity was made in the newspapers and facility of downloading admit cards through the official website of the department, cannot be said to be an effective mode of reaching all the candidates, particularly in the year 2015, when there were poor connectivity of internet in the rural areas in most of the villages. 10. The fact, that admit card was issued to one candidate Sunil Kumar Yadav after the date of examination, establishes the fact that the whole process preceding the examination cannot be said to be fair and proper. 11. The advertisement was issued in the year 2012. The admit cards for holding the examination in the year 2015 were admittedly issued in a hurried manner and thus, the whole process preceding the examination smacks of unfair practice. It needs to be noticed that when the credibility of the process adopted for holding the examination stands vitiated by irregularities, then the worthy candidates are denied appointment. A large number of candidates belonged to rural areas and they could not be said to have an easy access to internet facility as well as the advantage of publicity in newspapers. When credibility of the whole process leading to the examination itself is under cloud, the decision of the State Government to cancel the entire examination cannot be said to be irrational or arbitrary. It is well-settled law that recruitment to public services must command public confidence. In such a situation, where a decision is taken by the Government to cancel the entire examination, this Court need not indulge in a roving enquiry to Rule out all possible explanations and alternative scenarios, where such irregularities would be justified. It is well-settled law that recruitment to public services must command public confidence. In such a situation, where a decision is taken by the Government to cancel the entire examination, this Court need not indulge in a roving enquiry to Rule out all possible explanations and alternative scenarios, where such irregularities would be justified. Where the entire process of conducting examination is found to be flawed upon, then the appellants, whose result are still awaited, cannot complain of unfairness as no rights have been created in their favour by appearing in the examination. The age relaxation had only been granted to the appellants, if they intend to appear in the subsequent examination. 12. In Union of India vs. O. Chakradhar, (2002) 3 SCC 146 , it was held that where mischief in conducting selection was so widespread and all pervasive, affecting the result, and, it was difficult to identify the persons unlawfully benefited or wrongfully deprived of selection then in that event whole selection should be cancelled and in that view a decision of cancelling the selection cannot be said to be unreasonable or arbitrary. In para-8 of the judgment, the Court held as under: ''In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all-pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection in such cases it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committee also has its relevance.'' 13. In the aforesaid facts and circumstances, we do not find any error in the judgment of the learned Single Judge. The special appeal is devoid of merits and it is, accordingly, dismissed.