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2023 DIGILAW 1011 (ALL)

Sushil Kumar v. Legislative Council U. P.

2023-04-12

DINESH KUMAR SINGH

body2023
JUDGMENT : (Dinesh Kumar Singh, J.) : The present petition under Article 226 of the Constitution of India has been filed by the petitioners, who were appointed on contractual basis as per the scheme contained in the Government Order No. A-2/234/10-98-24(6)97 dated 22.5.1998 issued by the Department of Finance, Government of Uttar Pradesh, providing that appointment to fill up vacancies in Legislative Council Secretariat arising in Class-III and Class-IV posts would be made on temporary/daily-wage-basis for a maximum period of six months at a time, and the said Government Order specifically mentioned that employees, appointed on temporary and daily-wage-basis, shall not have any claim for regularization. 2. The petitioner Nos. 1, 2 and 3 were given contractual appointments on the post of assistant review officer vide orders dated 20.11.2012, 11.1.2011 and 24.12.2014 respectively. 3. The service conditions of officers/employees of Legislative Council Secretariat are governed by the U.P. Legislative Council Secretariat (Recruitment and Condition of Service) Rules, 1976 (hereinafter referred to at the ''Rules, 1976'') framed under Article 187(B) of the Constitution of India. The Rules, 1976 have been amended vide 4th Amendment Rules, 2019 (hereinafter referred to as the ''Rules, 2019'') notified on 14.1.2020. One of the important and major changes in amended Rules is that the posts, which were earlier within the purview of U.P. Public Service Commission, have been taken out from the purview of the U.P. Public Service Commission, and the said posts have been brought within the purview of a selection committee to be constituted under the amended Rule-6 (i-D). 4. Vide Advertisement dated 17.9.2020 and supplementary advertisement dated 27.9.2020 Online applications were invited for holding recruitment for 99 vacancies of 11 cadres, including the posts of assistant review officer, review officer and additional private secretary. 5. The petitioners applied for 3 posts i.e. for the post of assistant review officer, review officer and additional private secretary. They were unsuccessful in the preliminary examination of the recruitment process. 6. In the present petition, the petitioners have sought quashing of the entire process of selection pursuant to the Advertisement No. 01 of 2020 dated 17.7.2020 and Supplementary Advertisement dated 27.9.2020. Further prayer has been made for issuance of a direction to the respondents to allow the petitioners to continue to work on their respective posts as per scheme of Government Order dated 22.5.1998. 7. Further prayer has been made for issuance of a direction to the respondents to allow the petitioners to continue to work on their respective posts as per scheme of Government Order dated 22.5.1998. 7. In support of their prayers, the petitioners have made allegations of nepotism, favoritism, mala fide and violation of rules in the selection process. It is further alleged that earlier it was the U.P. Public Service Commission, which was making selection for the posts advertised, however, amendment in the Rules, 1976 were made, and in a collusive manner, selection has been entrusted to a private agency. It is further alleged that the paper was leaked on the day of the examination at Gorakhpur Center. Though the examination at Gorakhpur Center was cancelled, but it is alleged that in the present era of technology, where semiconductors and electronic revolution has taken place, in a big way, leakage of paper at one center amounts to leakage of paper at all centers. 8. Learned counsel for the petitioners has also submitted that the conjoint reading of Rules, 21, 22 and 23 of Rule-6 (i-D) would establish that the Rule-22(2) is in derogation of the scheme of Rule-21 of Rule 6(i-D). Now, it is the selection committee, which is empowered, to hold written-examination and/or interview. 9. It is important to note here that Rule-22 (2) provides that the Chairman may authorize any external agency to conduct the whole selection process or part thereof, therefore, the submissions made on behalf of the petitioners that the entire selection from issuing advertisement to conducting written-examination and holding interview etc. is a job of selection committee referred to in Rule-6(i-D) does not appear to be correct in view of the scheme of the Rules. It has been submitted that in the present case only the written-examination has been conducted, and no interview was conducted by the selection committee before declaring the result of final selection. 10. Under Rule-21 written-examination and/or interview is prescribed and, therefore, the written-examination is to be mandatorily followed by the interview, and in case the selection is to take place only on the basis of interview, there will be no requirement of written-examination. However, since the written-examination was conducted, interview should have been conducted. 11. 10. Under Rule-21 written-examination and/or interview is prescribed and, therefore, the written-examination is to be mandatorily followed by the interview, and in case the selection is to take place only on the basis of interview, there will be no requirement of written-examination. However, since the written-examination was conducted, interview should have been conducted. 11. It may be said that the petitioners have lost sight of the Uttar Pradesh Direct Recruitment to Junior Level Posts (Discontinuation of Interview) Rules, 2017 whereby the interviews for appointment to the posts of Class-III and Class-IV posts have been discontinued, and the appointments are to be made only on the basis of written-examination. 12. It has been next submitted on behalf of the petitioners that without disclosing the marks obtained and publication of names of the successful candidates, the online forms were called for the main-examination. The selection comittee, however, relaxed the condition and uploaded the offline forms, which could have been downloaded, and filled at the time of main-examination. It is alleged that several candidates close to the present and the retired officers of Secretariat, were selected, and the candidates of personal choice of Principal Secretary of the Legislative Council Special Secretary, Legislative Council and Chairman, Legislative Council and its Members Secretary and other officers of the Legislative Council have been arrayed as respondents. It is alleged that the whole selection process was an eye-wash, and in violation of due process of law. 13. Further allegation of the petitioners is that two persons, namely, Manoj Kumar Sahani and Sunil Kumar Yadav, who were working on the contract basis, have been regularized/given substantive appointments prior to holding the selection against the statutory rules. 14. The main-examination was conducted and, result was declared on 8.1.2021 then the petitioners made allegation that one Pankaj Mishra, who was working as officer-on-special-duty with the Chairman, Legislative Assembly, who does not have the requisite eligibility got selected as officer-on-special-duty (publication) against the rules. 15. The petitioners have filed an application for interim direction on 19.1.2023 accompanied by an affidavit alleging that TSR Data Processing Private Limited agency was given the work for conducting the examination for selection on Class-III and Class-IV posts in Uttar Pradesh Legislative Council. The said agency was near and dear to the then Chairman of the Legislative Council. 15. The petitioners have filed an application for interim direction on 19.1.2023 accompanied by an affidavit alleging that TSR Data Processing Private Limited agency was given the work for conducting the examination for selection on Class-III and Class-IV posts in Uttar Pradesh Legislative Council. The said agency was near and dear to the then Chairman of the Legislative Council. One of the directors of the said agency, Smt. Bhavana Yadav has been selected and appointed through the impugned selection as review officer in the Legislative Council, and this fact would itself be sufficient to establish that the selection in question was nothing but a complete eye-wash, and a drawing-room-arrangement. A list of candidates has been drawn/mentioned in paragraph-4 of the affidavit filed in support of the application for interim direction to show that several candidates, who are relatives of the officers working in the Legislative Council, have been selected. It was alleged that one candidate, namely, Anirudh Yadav (Roll No. 145198), who answered only 8 questions, was declared successful in written-examination, however, his name did not find place in the final select list. 16. Mr. Shobhit Mohan Shukla, learned counsel for the petitioners, in view of the submissions, has prayed that the entire selection may be cancelled. 17. On the other hand, Mr. Gaurav Mehrotra, learned counsel for the respondents, has submitted that only after being declared unsuccessful in the preliminary-extermination, result whereof was declared on 11.12.2020, the instant writ petition was filed by the petitioners. The selection for different posts advertised had already been concluded, and most of the selected candidates had joined on their respective posts, and they have been confirmed. The petitioners had applied only against 3 posts, out of 99 vacancies of 11 cadres, and they cannot be allowed to assail the entire advertisement. The petitioners have not challenged the vires of the Rules, 2019, but they have sought relief in accordance with unamended Rules, 1976, and such a prayer is not maintainable in the eyes of law. The age relaxation of 2 years to the maximum age-limit was prescribed under the advertisement in addition to the age-relaxation available to the candidates of reserved category through reservation, and further, employees appointed on contractual/daily-wage-basis were given weightage of 2 marks in the preliminary-examination, and 5 marks in main-examination. The age relaxation of 2 years to the maximum age-limit was prescribed under the advertisement in addition to the age-relaxation available to the candidates of reserved category through reservation, and further, employees appointed on contractual/daily-wage-basis were given weightage of 2 marks in the preliminary-examination, and 5 marks in main-examination. The petitioners, despite availing the age-relaxation and weightage of marks, could not become successful in the preliminary-examination and, therefore, they did not feature in the list of candidates, who were called for the main-examination. The petitioners, who applied only against three posts, cannot be allowed to challenge the entire selection process, which has been free and fair. 18. Learned counsel for the respondents, Mr. Gaurav Mehrotra has further submitted that several requests were sent to the U.P. Public Service Commission by the Legislative Council to undertake recruitment exercise for vacancies, however, the Public Service Commission could not undertake the recruitment exercise for filling up the posts and, therefore, a conscious decision was taken in the year 2011 to make recruitment by the Council and Assembly themselves. In 2019, the Chairman of the Legislative Council promulgated (Fourth Amendment) Rules, 2019 by which the recruitment process for different secretariat staff of the Legislative Assembly and Council was taken out from the purview of the U.P. Public Service Commission, and this power is conferred under the Constitution itself. 19. On behalf of the respondents, learned counsel Mr. Gaurav Mehrotra has forcefully submitted that the list of candidates, who were said to be related to the officers and employees of the Legislative Council, is wholly incorrect, and the petitioners are trying to indulge into fishing and roving enquiry. No-one, who is in relation to the Secretary of the Legislative Council, has been selected. The allegations are completely vague. The burden of proving mala fide is on the person making allegations, and the burden is very heavy. There is every presumption in favour of administration that the power has been exercised bona fide and in good faith. Allegations of mala fide demand proof of high degree of credibility. 20. Mr. The allegations are completely vague. The burden of proving mala fide is on the person making allegations, and the burden is very heavy. There is every presumption in favour of administration that the power has been exercised bona fide and in good faith. Allegations of mala fide demand proof of high degree of credibility. 20. Mr. Gaurav Mehrotra, learned counsel for the respondents, has further submitted that similar challenge was made to the Advertisement No. 1 of 2020 dated 7.12.2020 issued by the Secretariat of U.P. Legislative Assembly for interview, inter alia, to the post of assistant review officer etc, and this Court has dismissed the writ petition, holding that the Court cannot direct a fishing and roving enquiry on the basis of which a person can set-out his case. 21. Mr. Shobhit Mohan Shukla, learned counsel for the petitioners, in rejoinder, has submitted that if this Court does not agree with the submission made by him on behalf of the petitioners for quashing the entire selection, the petitioners may be allowed to work on contractual basis as there are posts, which are lying vacant, till regularly selected candidates come and join the posts. 22. I have considered the submissions advanced by the learned counsel for the parties. 23. This Court, while considering similar issue in respect of the selection and appointment pursuant to the Advertisement No. 1 of 2020 dated 7.12.2020 issued by the Secretariat of Uttar Pradesh Legislative Assembly for recruitment, inter alia, to the post of assistant review officer, in paragraphs-24, 25 and 26 of the order dated 8.10.2021 passed in Writ Petition Service Single No. 11896 of 2021 has held as under : ''24. It is well-settled legal position that the Court should not hold a fishing and roving enquiry on the basis of which a person can set-out his case. In an appropriate case, if the material is necessary, the Court can order for production of relevant documents, but before that, it would be the duty of the party, asking production of documents, to make-out a case that it would be necessary that certain documents are to be produced. In an appropriate case, if the material is necessary, the Court can order for production of relevant documents, but before that, it would be the duty of the party, asking production of documents, to make-out a case that it would be necessary that certain documents are to be produced. The Supreme Court in the case of Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 Supp SCC 93, which was an election matter, held that in respect of allegations of corrupt practice, which are in the nature of criminal charge, there should be no vagueness in the allegations. Allegations should not be vague and general and particulars of corrupt practice must be stated specifically. The law is well-settled that the Court should avoid fishing and roving enquiry in the matter. 25. The Supreme Court in a recent judgment in the case of Charansingh v. State of Maharashtra and others, (2021) 5 469, has held that roving and fishing enquiry is not permissible under the law. Paragraph-19 of Charansingh v. State of Maharashtra and others' case (supra), which is relevant, is extracted hereunder : ''19. However, the next question posed for the consideration of this Court is, whether to what extent such an enquiry is permissible and what would be the scope and ambit of such an enquiry. By the impugned notice, impugned before the High Court, and during the course of the ''open enquiry'', the appellant has been called upon to give his statement and he has been called upon to carry alongwith the information on the points, which are referred to hereinabove for the purpose of recording his statement. The information sought on the aforesaid points is having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. However, such a notice, while conducting the ''open enquiry'', shall be restricted to facilitate the appellant to clarify regarding his assets and known sources of income. The same cannot be said to be a fishing or roving enquiry. Such a statement cannot be said to be a statement under Section 160 and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure. Such a statement even cannot be used against the appellant during the course of trial. The same cannot be said to be a fishing or roving enquiry. Such a statement cannot be said to be a statement under Section 160 and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure. Such a statement even cannot be used against the appellant during the course of trial. Statement of the appellant and the information so received during the course of discrete enquiry shall be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 is disclosed. Such a statement cannot be said to be confessional in character, and as and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law.'' 26. In view of the aforesaid discussions, I find that the petitioners have not been able to substantiate the allegations of corrupt practices, manipulations and illegal and arbitrary exercise of powers, while conducting the selection process for the post of ARO pursuant to the Advertisement and, therefore, this Court cannot permit the petitioners to open a fishing and roving inquiry of the selection held pursuant to the Advertisement when the petitioners could not secure marks above the cut-off-marks in their written examination.'' 24. The present case is identical one to the aforesaid case in respect of the recruitment to the Legislative Assembly and, therefore, it is squarely covered. However, it is required to note that appointments for a post in a public body must be in a fair and reasonable term. Fairness and reasonableness must be ensured in entire process of selection. The decision of recruiting body is amenable to judicial review, subject to settled principle that it should take the decision in accordance with law, and best suited to sanctity and integrity of the selection process. The selection process/exercise can stand vitiated itself where the irregularities in the process have taken place at systematic level. If the systematic irregularities or cross-over into the domain of fraud as a result of which the credibility and legitimacy of the process gets squarely affected then the entire selection requires to be quashed. The selection process/exercise can stand vitiated itself where the irregularities in the process have taken place at systematic level. If the systematic irregularities or cross-over into the domain of fraud as a result of which the credibility and legitimacy of the process gets squarely affected then the entire selection requires to be quashed. However, if some of the participants in the selection process, who appeared at the examination or selection, themselves are guilty of irregularities, and there is possibility to segregate such persons, who are guilty of wrong-doing from others, then the entire selection is not to be cancelled. Such persons, who had indulged in wrong-doing, their cases should be excluded from the selection process. 25. Recruitment to public services must command public confidence. Persons, who are recruited, are intended to perform public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few, who may not be specifically found to be involved in wrong-doing, however, to maintain public confidence in the selection process, to ensure its integrity, sanctity and credibility in the recruitment/selection process, in such a situation the entire selection process has to be cancelled. If there is a systematic failure to ensure the fairness, impartiality and sanctity of the examination then the examination is to be cancelled. The petitioners have not been able to point out such a systematic failure or irregularities in the selection process. 26. The Supreme Court, in the case in Sachin Kumar and others v. Delhi Subordinate Service Selection Board (DSSB) and others, (2021) 4 SCC 631 , has held that a fair and reasonable process of selection to posts, subject to the norm of equality of opportunity is mandate of Articles 14 and 16 of the Constitution of India. Recruitment for a public post must be in free and reasonable terms. Throughout the selection process it is duty of the public body to ensure fairness and reasonableness of the process. Paragraphs 65 and 66 of the said judgment, which would be apt to mention, are extracted herein below : ''65. Recruitment for a public post must be in free and reasonable terms. Throughout the selection process it is duty of the public body to ensure fairness and reasonableness of the process. Paragraphs 65 and 66 of the said judgment, which would be apt to mention, are extracted herein below : ''65. During the course of his submissions, Mr P.S. Patwalia has sought to provide explanations for each of the systemic irregularities pointed out by the first Committee, including the drastic reduction in the number of candidates who appeared for the Tier I examination, non-issuance of hard copies of admit cards, shortlisting of candidates belonging to a certain geographical area, lack of randomisation in the examination centres, among others. In response to this, the learned ASG has pointed out that while assessing whether the recruitment process has been compromised, the factors (or irregularities) must be looked at cumulatively to ascertain whether they are sufficiently grave to cancel the recruitment. We find ourselves in agreement with the learned ASG. So long as there is sufficient basis to contend that mass-scale irregularities have occurred, this Court need not indulge in a roving inquiry to rule out all possible explanations and alternative scenarios where such irregularities would be justified. 66. Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrongdoing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrongdoing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment. Both the High Court and the Tribunal have, in our view, erred in laying exclusive focus on the report of the second Committee which was confined to the issue of impersonation. The report of the second Committee is only one facet of the matter. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. In this view of the matter, both the judgments of the Tribunal and the High Court are unsustainable.'' 27. In view thereof, to maintain the public confidence in the recruitment process in the Legislative Assembly and Legislative Council in respect of Class-III posts, the recruitment should be in the hands of the specialized statutory recruitment body, and not in the hands of a selection committee or a private agency. Therefore, it is directed that in future all Class-III posts in Assembly and Council are to be filled up by the selection made by the Uttar Pradesh Subordinate Services Selection Commission. In this respect, necessary amendment in the recruitment rules are to be carried out within a period of three months from today. 28. The petitioners, who have been given appointment on contractual basis, should be allowed to work on contractual basis and paid remuneration accordingly, subject to their performing duties of the posts, if the posts are vacant on which they have been working, till regularly selected candidates come from Uttar Pradesh Subordinate Services Selection Commission and join the posts. 29. With the aforesaid observations/directions, this petition stands dismissed, so far as the prayer made for quashing of the selection pursuant to the impugned advertisement is concerned.