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SHAILENDRA KUMAR versus STATE OF U.P. THRU' SECY. ENERGY AND OTHERS

High Court of Judicature at Allahabad

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Shailendra Kumar v. State Of U.P. Thru' Secy. Energy And Others - WRIT - A No. 47875 of 2005 [2007] RD-AH 13686 (7 August 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                             Reserved

Civil Misc. Writ Petition No.  46362 of 2004

Manoj Kumar & others           Vs.          State of U.P. & others

A N D

Civil Misc. Writ Petition No.  49964 of 2004

 Pradeep Bhargava       Vs.            State of U.P. & others

A N D

Civil Misc. Writ Petition No.  54104 of 2004

Devendra Kumar & others Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  50599 of 2004

Naresh Pal & others Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  52960 of 2004

Devendra Kumar   Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  51370 of 2004

       Shou Singh      Vs.   U.P. State Power Corporation & others

A N D

Civil Misc. Writ Petition No.  31717 of 2005

Sonu Verma Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  26830 of 2005

Amar Deep Sonkar & others Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  6257 of 2005

Gulab Chand Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  47877 of 2005

Akhilesh Pratap Singh Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  47875 of 2005

Shailendra Kumar Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  51670 of 2005

Bharat Singh Vs.   State of U.P. & others

A N D

Civil Misc. Writ Petition No.  26216 of 2005

Gyan Prakash Tantiya & others Vs.   State of U.P. & others

Hon'ble Vineet Saran, J

All these writ petitions arise out of the same cause of action and hence they have been heard together and are being disposed of by a common judgment. Writ Petition No. 46362 of 2004, in which pleadings have been exchanged, is being treated as the leading case.

The brief background of these cases is that the Electricity Service Commission, Lucknow (for short ''the Commission') issued an Advertisement No. 2 of 2003 whereby applications were invited for appointment of 190 Office Assistants Grade-III in the respondent-U.P. Power Corporation Ltd. (for short ''the Corporation'). All the posts to be filled up were of backlog vacancies falling under the Scheduled Caste/Scheduled Tribes category. In response to the said advertisement, a large number of candidates had applied and after selection, the results were declared on 22.8.2003. A select list was declared in which all the petitioners were shown as selected for appointment as Office Assistant Grade-III.

Out of the selected candidates, only some could be issued appointment letters, of which just a few were permitted to join, when in the meantime a Government Order was issued on 29.8.2003 whereby the State Government imposed a ban on all further appointments to be made in the State Government Corporations. Pursuant to the aforesaid Government Order, the respondent-Corporation refused to issue further appointment letters and also directed not to even permit those selected candidates to join, in whose favour appointment letters had already been issued. Such selected candidates, who were not permitted to join service or had not been issued appointment letters, then filed several writ petitions with the prayer for a direction to the respondent-Corporation to permit such candidates who had been issued appointment letters, to join the post; and further to issue appointment letters in favour of such other selected candidates, and they be then permitted to join service. By judgment and order dated 23.3.2004 passed in Writ Petition No. 51448 of 2003, Chandra Shekhar Vs. State of U.P. & others, while allowing the writ petition, the order restraining the candidates from joining was quashed and keeping  in view that the Government Order dated 29.8.2003 (by which restraint on making fresh appointments had been imposed) had itself been withdrawn by the State Government on 15.1.2004, the Corporation was directed to issue appointment letters in favour of all the remaining selected candidates and allow them to join. Such orders were passed in other similar writ petitions also.

The Corporation then challenged the aforesaid judgments by filing separate Special Appeals before the Division Bench of this Court. While dismissing the Special Appeal No. 501 of 2004, vide its judgment and order dated 4.5.2004, the Division Bench observed that in the circumstances of the case "it is not open to the Power Corporation to withhold the issue of the appointment letters to the Petitioners. We fully agree with the views of the learned Judge and accordingly propose to dismiss the Special Appeal except with a slight modification that the appointment letters so issued under the directions of the learned Judge shall be subject to the decision to be taken in the inquiry and so would be the payment of salary." A few other Special Appeals filed against other identical orders passed in similar writ petitions were also dismissed in the same terms.

However, in another Special Appeal No. 694 of 2004, wherein a similar order of the writ Court was challenged, another Division Bench, vide its order dated 7.6.2004, did not agree with the judgment and order dated 4.5.2004 passed in Special Appeal No. 501 of 2004 and opined that the matter required to be considered by a larger Bench of this Court and referred it to the Hon'ble Chief Justice for constitution of a larger Bench. However, by the said order dated 7.6.2004, the Division Bench further directed that "till the decision of the larger Bench, we direct that if any persons have been appointed in pursuance of the aforesaid selection, they shall not be allowed to function till further orders. If persons selected have not been given appointment, they shall not be given appointment till the decision of the larger Bench." This order covered even those candidates who had been issued appointment letters and were permitted to join and were already working and had not even filed any writ petition.

Such candidates whose working had been stopped by the said order, and also the other selected candidates, challenged the aforesaid order dated 7.6.2004 by filing Special Leave Petition 19297 of 2004 (Naresh Pal and others Vs. U.P. Power Corporation and others) before the Apex Court. During the pendency of the said petition, an enquiry report had been submitted and consequently vide order dated 30.9.2004, the entire selection itself had been cancelled by the Corporation. The Supreme Court thus disposed of the Special Leave Petition No. 19297 of 2004 on 4.10.2004 by the following order:-

"The grievance of the petitioners in these special leave petitions is that although the issue relating to their appointments was not raised in the writ petition which was the subject matter of appeal before the Division Bench, the Division Bench, by the impugned order, has stayed their working in the post to which they had been appointed. The issue has now become academic in view of the fact that the Corporation has since passed an order on the basis of an enquiry report setting aside the entire selection. The SLPs are accordingly dismissed. This, however, will not prevent the petitioners from challenging the cancellation if they are otherwise so entitled."

Since by the aforesaid order, the Supreme Court had permitted the petitioners to challenge the cancellation order, these writ petitions have been filed praying for quashing the order dated 30.9.2004 passed by the Chairman/Managing Director of the Corporation and the consequential orders passed thereon in individual cases.

I have heard Sri Ashok Khare, learned Senior Counsel, assisted by Sri Sanjay Kumar Rai on behalf of the petitioners in the leading writ petition. S/sri Anil Kumar Rai, Aditya Kumar Singh, V.K.Jaiswal and J.S.Pandey  have also been heard on behalf of the petitioners in the connected writ petitions. Sri Ravi Kant, learned Senior Counsel assisted by Sri R.D.Khare, have been heard on behalf of the respondent-Corporation. Pleadings between the parties have been exchanged in the leading writ petition and with consent of learned counsel for the parties, all these writ petitions are being decided together at the admission stage itself.

The petitioners in this bunch of writ petitions can be placed in three categories, namely;

(i) those who were already given appointment in pursuance of the select list and had joined service and were working till the order dated 7.6.2004 was passed by the Division Bench in the Special Appeal no. 694 of 2004;

(ii) those who were issued appointment letters but no work was taken from them; and

(iii) those who were not issued appointment letters, even though their names found place in the select list.

The contention of the respondent-Corporation that merely because the name of a candidate appears in the select list, he would not become entitled to appointment, had been considered by this Court in Writ Petition No. 51448 of 2003 wherein it was held that "no doubt, merely on the declaration or issuance of the select list, the candidates included therein do not acquire an indefeasible right to appointment but as has been held by the Apex Court in the case of Asha Kaul (Mrs) and another Vs. State of J&K  (1993) 2 SCC 573 the same is only one aspect of the matter and "the other aspect is the obligation of the Government to act fairly." The Apex Court was of the view that once a requisition/request had been sent to the Commission to select a particular number of candidates for a particular category and in pursuance thereof the Commission issued a notification, held a written test, conducted interviews, prepared a select list and then communicated to the Government; the Government could not then quietly and without good and valid reasons nullify the whole exercise and tell the candidates, when they complaint, that they have no legal right to appointment. According to the Supreme Court, in such a case, the whole exercise could not be reduced to a farce and the Government could not adopt such a stand with any justification." However, in the aforesaid judgment it was noticed that during the course of argument the learned counsel for the Corporation had then mentioned about some enquiry being pending with regard to the selection process, but in view of the fact that no averment to that effect had been made in the pleadings in that writ petition, the writ Court did not rely on such statement made on behalf of the Corporation.

The stand of the Corporation now is that a preliminary (interim) enquiry report was submitted in the matter on 5.4.2004, and the revised (final) report was thereafter submitted on 11.6.2004. It was on the basis of such enquiry that the impugned order dated 30.9.2004 had been passed by the Corporation, whereby the entire selection had been cancelled, and consequently, it had been provided that those selected candidates who had not been given appointment, need not be given such appointment; and those in whose favour appointment letters had already been issued, the same be cancelled. By the said order, a further direction has been issued to the Electricity Service Commission to hold fresh selections from amongst the candidates who had applied in response to Advertisement No. 2 of 2003 and that such selection process be completed within three months.

In the present writ petition, after time had been granted to the Corporation to file counter affidavit and when the same had not been filed, this Court had passed a detailed interim order dated 2.12.2004, whereby it was provided that "the selection process in pursuance of the impugned order dated 30.9.2004 may go on but neither results of the same shall be declared nor appointments be made in pursuance thereof. It is further provided that the petitioners may appear in fresh selection, which shall not prejudice their right involved in the present writ petition." Learned counsel for the respondents has stated at the Bar that the tests for the fresh selection have been conducted, but the interviews have not been held and consequently no fresh select list has yet been prepared.

In the backdrop of the aforesaid history of these cases, the prayers made in these writ petitions are to be considered. The prayers mainly are for quashing the order dated 30.9.2004 passed by the Chairman-cum-Managing Director of the Corporation and the consequential orders passed by the appointing authorities, and to further permit the petitioners to join and work on the post of Office Assistant Grade III and pay them their regular monthly salary.

Briefly stated the point-wise reasons for cancellation of the selection, as per the impugned order dated 30.9.2004, which are based on the interim enquiry report dated 5.4.2004 and the revised (final) enquiry report dated 11.6.2004, are as follows:-

(1) As per the order of the Corporation dated 19.4.2003, the selection ought to have been made on the basis of the merit list prepared after calculating the marks obtained in the qualifying educational examination, typing test, knowledge of computer and interview; but after the corrigendum advertisement had been issued, the selection process did not take into account the marks obtained in the qualifying educational examination.

(2) The advertisement did not specify the norms for conducting the typing test.

(3) The computer floppy and the print out of the computer performance test of the candidates were not made available.

(4) The standard of computer test kept for selection was very low.

(5) In the Selection Committee, the representatives of Scheduled caste/Scheduled Tribes were from amongst the retired officers even when such serving officers were available.

(6) Select list was sent directly to the General Managers of the regions (appointing authorities) and not through the Chief Engineer or Head Office.

(7) The select list was declared by the Commission without taking the approval of the Corporation.

(8) The Commission did not work out region-wise vacancies properly and allotment of regions to the selected candidates was also not properly made.

(9) Objections were received from some General Managers with regard to the merit of the selected candidates.

(10) The Commission did not take effective steps for removing the objections of the Regional General Managers and instead forwarded papers relating to selection/appointment to other regions.

(11) Commission had indicated before the Supreme Court that rules relating to selection had been ignored.

(12) Selection was done hurriedly and in an impracticable manner and as such the selection was neither impartial nor transparent.

For the aforesaid reasons the Corporation directed that:

(a) The entire selection be cancelled and those candidates who had not joined should not be permitted to do so and their appointment letters be cancelled;

(b) No work should be taken from such candidates who had been permitted to join and they be not paid salary on the principle of no work no pay;

(c) Commission be directed to conduct fresh selection only from amongst the applicants of the earlier advertisement and such selection be completed within three months; and

(d) The role of officers/employees and outsider agencies responsible for the irregularities be identified and departmental/criminal proceedings be initiated against them.

Now what is to be first considered is as to whether the passing of the impugned order was justified on the basis of the enquiry reports that had been submitted.

Although along with the counter affidavit, the respondents claim to have filed the enquiry report as Annexure-C.A.4, but on perusal of the said annexure it is found that the same is not the enquiry report but some other document. When the same was noticed by the Court, Sri Ravi Kant, learned senior counsel made a statement that both the enquiry reports (Interim and Final) would be placed for perusal of the Court. Then some documents were placed under sealed cover, which the Corporation claimed to be the said reports and stated that they were confidential documents and could not be given to the petitioners. However, realising that when along with the counter affidavit they had themselves said to have filed the enquiry reports and as such claiming the same to be confidential documents was not possible or proper, the respondents prayed for time to file the said reports. The on 20.1.2006 a supplementary counter affidavit has been filed and the relevant paragraphs 2 and 3 of the same are quoted below:

"2. That due to inadvertence the enquiry report dated 11.6.2004 could not be filed along with the counter affidavit and, therefore, the necessity of filing the supplementary counter affidavit has arisen.

3. That the aforesaid enquiry report along with its Annexures and covering letter dated 11.6.2004 is being filed herewith and is marked as Annexure No. SCA-1 to this supplementary counter affidavit."

It is noteworthy that what has been filed is only the report dated 11.6.2004, which has been termed as punreekshit aakhya (revised report). The earlier report dated 5.4.2004, which is termed in the covering letter dated 11.6.2004 as the interim report, has not been filed.  The said report dated 11.6.2004 is contained in eight pages and there are 31 annexures said to be filed along with it, which run into 109 pages. Almost all the said annexures filed along with the report do not tally with the documents mentioned in the report. Further, most of the annexures are of dates subsequent to 11.6.2004 e.g. the first annexure filed along with the report is termed as Annexure-9, which is dated 11.10.2004; the second annexure is termed as Annexure-10, which is dated 27.10.2004; the third annexure is termed as Annexure-11, which is dated 29.10.2004; then Annexure-12 is dated 30.10.2004 and so on. The statements of witnesses which is said to form the basis of the report are also dated 30.10.2004, 1.11.2004, 6.11.2004 etc. It is not understood as to how the documents which are dated subsequent to the report, could form the basis of the enquiry report. Learned counsel appearing for the respondents could not justify this. He has, however, stated that these documents which have been filed as annexures to the enquiry report could be the documents relating to the ''action taken' on the basis of this report. It is quite surprising that the respondents are themselves not clear about the papers filed by them. From this, it is clear that they have not been fair to the Court, by firstly not producing the enquiry reports even when asked to do so, and then when they have filed the enquiry report, they have not filed the complete report. Further, till the end, they did not care to file the preliminary enquiry report said to have been submitted on 5.4.2004. This is when repeatedly time had been granted to the respondents to file such documents. It is not understood as to why the respondents are trying to keep away the said documents from the Court and what are they trying to hide. The enquiry reports are the very basis of the impugned order dated 30.9.2004, relying on which the entire selection has been cancelled by the Corporation.

Sri Ashok Khare, learned Senior Counsel appearing for the petitioners has challenged the action of the respondents in passing the order dated 30.9.2004 passed by the Chairman/Managing Director of the  Corporation as well as the consequential orders, on the ground that the same have been passed in violation of the principles of natural justice as no opportunity of hearing was afforded by the enquiry officer to the selected candidates, who were the affected parties. As regards the merits of the case, it has been submitted that all the grounds taken in the impugned order for cancelling the selection process are totally non-existent and cannot form basis for arriving at the conclusion that the selection was not fairly conducted. It has been submitted that no candidate who has not been selected has ever raised any grievance with regard to the fairness of the selection process and that it was only after the filing of Writ Petition No. 51448 of 2003  and at the stage of its hearing, that the Enquiry Committee was constituted on 19.2.2004. After the said writ petition was allowed on 23.3.2004, a preliminary (interim) report is said to have been submitted on 5.4.2004 and the final report on 11.6.2004. It has thus been urged that there existed no objection of any kind against the selection till the above writ petition was taken up for arguments. It was lastly urged that the Corporation has primarily cancelled the selection because of the change of Government in the State as the selections were held during the regime of one Government and the appointments were to be made by subsequent Government. Lastly it was submitted that no action has been taken against any of the officers who were involved in the process of selection and in case if there were any irregularities committed by the Electricity Service Commission in the selection process, the officers then in-charge of the Commission ought to have been punished, whereas on the contrary they have been rewarded by being given promotions from time to time. It has thus been urged that the impugned order dated 30.9.2004 be quashed as the same has been passed on total non-existent grounds and that the petitioners, who had been given appointment and were working be permitted to rejoin the services and paid their salary with back wages, and those who were issued appointment letters but no work was taken from them, be given appointment and those who were not issued appointment letters although their names found place in the select list, be issued appointment letters and be permitted to work and be paid salary.

Sri Ravi Kant, learned counsel appearing for the respondent-Corporation has, however, defended the passing of the order dated 30.9.2004. He has submitted that several irregularities were found by the Enquiry Committee in the process of selection because of which the said selection could not be taken as fair and hence the same had to be cancelled. He further submitted that even if the enquiry report was not to be relied upon, then too the selections were bad as the Electricity Service Commission neither followed the U.P. Electricity Board Ministerial Establishment (Office of Chief Engineer and Subordinate Offices) Regulations, 1970 (for short "Regulations of 1970") nor did they follow the procedure prescribed under the U.P. Procedure for Direct Recruitment For Group ''C' Posts (outside the purview of the U.P. Public Service Commission) Rules, 2002 (for short "Rules of 2002") and thus the selections made cannot be justified in law. It was submitted that the Rules of 2002 were to apply as per the resolution of the Board of Directors dated 19.4.2003, according to which the allocation of marks obtained in the qualifying educational examination had also to be considered which had not be done and hence also the process for selection adopted by the Commission was improper and thus the entire selection has rightly been set aside.

In support of their submissions learned counsel for the parties relied on certain decisions which shall be considered later.

Before coming to the question as to whether the selected candidates were required to be given opportunity by the Enquiry Committee or not, I would first like to deal with the point-wise reasons given by the Enquiry Committee for cancellation of the selection process.

The first ground relates to the direction given by the Corporation vide order dated 19.4.2003 whereby the merit list had to be prepared after calculating the marks obtained in the qualifying educational examination, typing test, knowledge of computer and interview, whereas the marks obtained in the qualifying educational examination were not taken into consideration. These are said to have been issued by the Director, (Personnel, Management and Administration). After the issuance of the said letter dated 19.4.2003 a corrigendum advertisement was issued in which in paragraph 3 it was mentioned that for the post of Office Assistant Grade III, marks obtained in the typing test, knowledge of computer and interview would be taken into consideration. On going through the letter dated 19.4.2003 it is clear that the intent was to dispense with the written examination as mentioned in the earlier advertisement. Before giving the corrigendum on 20.4.2003, the approval of the Director, (Personnel, Management and Administration) had been obtained by the Chairman of the Electricity Service Commission and then only it was advertised that the selection process would only include typing test, knowledge of computer and interview. Even otherwise, after the issuance of the corrigendum, no objection was taken by the Corporation with regard to the procedure specified in the said advertisement till the filing of the earlier writ petitions in 2003 and the submission of the enquiry reports. As such, it appears that the respondents have only subsequently taken this ground merely with the intent to find fault with the selection process. Rules of 2002 have been framed under Proviso to Article 309 of the Constitution of India. The said Rules would not ipso facto become applicable to the appointments made by the Corporation. The same could become applicable only if they were validly adopted by the Corporation. No such resolution of the Board of Directors adopting the said Rules of 2002 has been placed on record by the respondents. The process of selection for appointment in the Corporation is to be governed by the Regulations of 1970. Originally the post of Office Assistant Grade III was not included in the said Regulations. The same was included only by an amendment in the year 1998 which provided for 100% appointments on such posts by direct recruitment through competitive examinations. The qualification was also provided in Regulation 9 which was "graduation degree from a recognized University with typing test and knowledge of computer". For this reason the advertisement dated 20.4.2003 specified for typing test and knowledge of computer to be examined for the purpose of preparing the merit list. The marks obtained in the qualifying educational examination were not required to be considered by the said Regulations of 1970. It is noteworthy that the Rules of 2002 do not envisage any test regarding knowledge of computer, which, under the Regulations of 1970, was necessary for the selection for appointment of Office Assistant Grade III.  As such, the selections having been made on the basis of the statutory Regulations framed by the Corporation for the said purpose and there being no deviation from the said Regulations of 1970 even alleged by the respondents, the selection process cannot be faulted on this ground.

As regards the second ground which relates to the non-specification of norms for conducting the typing test, in my view, the Electricity Service Commission was fully competent to lay down the norms and in the absence of there being any irregularity or illegality found with regard to the typing test, such ground is absolutely vague and cannot form basis for cancellation of the entire selection process.  In any case Regulation 70 relating to "Residuary Matters" empowers the Commission to "deal in such manner as they deem fit with any matter not specifically provided for in these Regulations".

The selection process can also not be set aside on the third ground taken, which was for non-availability of the computer floppy and the print out of the computer performance test of the candidates. The impugned order does not specify any illegality in the awarding of marks and there is no positive finding of irregularity given either in the enquiry report or the impugned order.  On the contrary it has come on record that a report regarding the involvement of outside agencies in the selection process was submitted by the General Manager of the Corporation on 16.11.2004 (which was after the passing of the impugned order dated 30.9.2004) in which a specific finding has been recorded that no outside agencies had committed any irregularity whatsoever. The relevant extract as quoted in paragraph 5 of the Supplementary Rejoinder Affidavit is given below:

"Yeh ki prasnagat chayan me dono agencion se koi apradhik karya athwa aniamitita nahi ki."

The fourth ground relates to the standard of the computer test which, according to the Enquiry Committee, was very low. It was argued on behalf of the respondents that all that was required by the candidates was to type out their own bio-data on the computer and save the same on the computer, which was not sufficient to judge the appropriate computer knowledge of the candidates. What is important to be examined here is as to whether the appointment which was to be made was on the post of Computer Programmer or Stenographer who has to do regular work on computer, or merely an Office Assistant. In the present case the selection was to be made on the post of Office Assistant in which a basic knowledge of computer was to be judged. In requiring a candidate to type out his bio-data on the computer, the basic knowledge of computer comes into play as the candidate would be required to open the computer, reach the particular programme on which the bio-data was to be typed, open a new file in the said programme, type out his bio-data and save the file and then close the computer. Even otherwise it is for the Electricity Service Commission to decide the standard with regard to the knowledge of computer of the candidates. It is nobody's case that different standards had been applied for different sets of candidates in examining the knowledge of computer. Since the same standard had been applied for all the candidates, which was found to be appropriate by the Electricity Service Commission and there being no irregularity found in the said test, the selection process can also not be set aside on this ground.

The fifth ground relates to nomination of retired Scheduled Caste/Scheduled Tribe officers in the Selection Committee even when serving officers were available, which, according to the respondents, would raise a question mark on the integrity of the Selection Committee and the fairness of the selection process. Such nomination of officers on the Selection Committee is made by the Commission. It has been stated by the petitioners that in normal course retired officers have always been appointed as members of the Selection Committee and there was nothing unusual in such nominations having been made in the present case. In support thereof the petitioners have annexed copy of the order dated 18.11.2004 issued by the Chief General Manager and Chairman of the Electricity Service Commission whereby, while appointing three Selection Committees for selection of candidates on the post of T.G.-II (Electricity), in each of the four members Committee. at least one retired officer of the Corporation had been nominated. As such, unless there was any irregularity found in the fairness of the conduct of examination/selection process with retired officers being there in the Selection Committee, the selection process cannot be set aside merely on surmises that because of there being retired officers in the Selection Committee, selection may not have been fair.

The next (sixth) objection is with regard to the select list being sent directly to the General Managers of the Region (appointing authorities) and not through the Chief Engineer or Head Office. Regulation 55 of the Regulations of 1970 provides for the Commission to send results to the appointing authority after finalizing the same. Even otherwise, before forwarding the select list to the General Manager of the concerned region, the Commission had obtained the permission of the General Manager on 23.8.2003 which was as per the instructions of the Director, (Personnel, Management and Administration) dated 22.8.2003. In the said communication dated 23.8.2003 the Chief Engineer had specifically mentioned the vacancies that existed in the various regions, and as required by Regulations of 1970, the same were sent to the appointing authorities of the regions in accordance with vacancies available.

The next (seventh) ground relates to declaration of the select list by the Commission without taking the approval of the Corporation. In support of this ground, the respondent-Corporation has relied on the circular dated 18.10.2001 which relates to a case where the results for appointment on the post of Assistant Accountants had been forwarded by the Commission where sanction for such posts had not been granted by the State Government, and in such circumstances it was stated that the select list ought  not to have been sent without approval of the Corporation. Although in the end it was mentioned that in future no result of any selection be declared without the permission of the Corporation but the same has to be seen in the context in which the said circular had been issued. Even otherwise, on the instructions of the Director, (Personal, Management and Administration) dated 22.8.2003, the Chief Engineer of the Corporation had written to the Commission on 23.8.2003 intimating the Commission of the vacancies existing in each region. As such, there were vacancies available on sanctioned posts. With the aforesaid communications having been issued by the Corporation there was implied approval of the Corporation for the Commission to declare the select list.

The eighth ground relates to the Commission not working out the region-wise vacancies properly and also improperly allocating the regions to the selected candidates. It is not understood that once when the vacancies in each region had been notified to the Commission and the Commission was authorized to send the select list to the appointing authorities of each region, then how can the forwarding of the names of the selected candidates to the appointing authorities be said to be improper, especially when under Regulation 55 of the Regulations of 1970 the Commission so requires. Further, in case if wrong region had been allotted to any selected candidate, the same could be corrected by transferring such candidate from one region to another, but it cannot be made a ground for cancelling the selection process.

The next (ninth) ground relates to certain objections received from some General Managers with regard to the merit of the selected candidates. A perusal of the objections would show that the General Manager of the Varanasi Region had objected that out of thirteen, 6 declined to type out Hindi on the computer. The same cannot be said to be lack of knowledge of computer as the candidates had the option to work on the computer either in Hindi or English. Further the lack of merit of some of the candidates could not be a ground for cancelling entire selection.

The tenth ground relates to the Commission not taking effective steps for removing the objections of the General Manager of the Region. Once the Commission had declared the list and sent the names to the appointing authorities in accordance with the Regulations of 1970, the Commission had become functus officio and was not required to take any steps with regard to any objections. In any case the said ground is very vague.

The next objection is with regard to filing of the affidavit before the Supreme Court, which was done so for the purpose of that case. It does not reflect on the fairness of the selection process.      

The last ground relates to the selection process being carried out in hurry and in impractical manner, as it has been stated that the examination for selection was conducted by inviting 3,000 candidates who were appearing in one examination room, the record of which was not made available to the Commission. In this regard what has come on record is that the tests, though may have been conducted in one room, but were not done so in a single day. The typing and computer test were spread over for 18 days from 11.8.2003 to 28.8.2003, as such, the said ground also does not have much force.

From the aforesaid discussions, in my view, none of the grounds as have been mentioned in the impugned order could be the basis for cancellation of the selection process held by the Electricity Service Commission for the appointment of Office Assistants Grade III. Further it is pertinent to note that a uniform procedure was adopted for the examinations/tests of all the candidates who had appeared and no instance of any discrimination has been pointed out either in the enquiry report or in the impugned order dated 30.9.2004. It is also not the case that any candidate who had not been selected had raised any grievance with regard to the correctness or fairness of the selection process. On the other hand it appears that the Corporation itself had taken the decision to review the selections held for the appointment of Office Assistants Grade III and that too after having declared the select list, given appointments to some (who even started working) and having issued appointment letter to several others.

Although this Court would not be inclined to go into such suggestion of the learned counsel for the petitioner that the process of cancellation of the selection process had been initiated by the Corporation because of the change of the State Government after the declaration of the results of selection, but in the circumstances, the possibility of the same cannot be ruled out. Had it not been so then after the lifting of the ban on the appointments on 15.1.2004 the remaining selected candidates ought to have been appointed by the Corporation, especially when there was no direction at that time with regard to appointment of any Committee to enquire into the matter relating to the selection. The first order for making enquiry was issued on 19.2.2004, which was during the pendency of the Writ Petition No. 51448 of 2003 and other similar writ petitions. It is also not understood that when the interim report is said to have been submitted on 5.4.2004 (which was after the judgment in the writ petition of 2003 passed on 23.3.2004) then why the said interim enquiry report was not placed before the Division Bench when the Special Appeal No. 501 of 2004 had been filed and was decided on 4.5.2004. The said interim enquiry report has not even been placed before this Court by the Corporation despite several directions having been issued in this regard. As has already been dealt with in the preceding paragraphs of this judgment, the enquiry report which has been filed is said to be dated 11.6.2004 and described as ''punreekshit aakhya' and is contained in 8 pages and the annexures filed in support thereof are mostly of date after the submission of the report. This Court fails to understand as to how the documents filed or statements taken after the presentation of the report could be made basis of enquiry report. It seems that the enquiry was actually conducted in a hurried manner, with a pre-determined mind, as on merits also the grounds on which the enquiry report recommends the selection process to be cancelled are not in any way worthy of acceptance.

On a query having been made to the learned counsel for the respondents that in case if the selection was not fair then what action had been taken against the officers then in-charge of the selection process, what has merely been told to the Court is that enquiry against them was pending. The petitioners have brought on record, which is not denied by the respondents, that shortly after the submission of the enquiry report dated 5.4.2004 Sri N.R. Sonkar, who was the then Chairman of the Electricity Service Commission was, by order dated 31.5.2004 issued by the Chairman-cum-Managing Director of the Corporation, granted promotion as Chief General Manager (Electrical and Mechanical) and posted as Managing Director, Madhyanchal Vidyut Vitran Nigam Limited. Not only this, immediately after the passing of the order dated 30.9.2004, two officers who had been Secretary of the Electricity Service Commission at the relevant time during the course of the selection proceeding, namely, Sri Sudhir Kumar Sharma and Sri Gopal Ram were also granted promotions on 28.10.2004 as Chief General Manager (Electrical and Mechanical) and General Manager (Electrical and Mechanical) respectively. If this is what the respondents call is the ''action taken' against the officers responsible for any misdeed or any wrong committed by them in the selection process then this Court would very much doubt the fairness of the Corporation in dealing with its employees because in such a case the persons responsible for any such misconduct have actually been rewarded and the duly selected candidates punished by orders of termination or cancellation of their selection. Such double standards adopted by the Corporation cannot be justified by any standard.

In the background of the aforesaid facts this Court shall proceed to deal with the various decisions cited by the learned counsel for the parties.

In the case of P. Ramanjini Vs. State of Andhra Pradesh (2002) 5 SCC 533 which has been relied upon by the learned counsel for the respondents, the Supreme Court was dealing with a case where representations and complaints had been made by the candidates who were unsuccessful in the test (which is not so in the present case) and on an  enquiry ordered by the District Collector, the Superintendent of Police had submitted his report where it was found that serious irregularities were committed during the conduct of examinations, which included mass-copying; inexperienced staff was appointed for invigilation; the number of invigilators was insufficient; large number of Superintendents did not attend the duties on the examination day; several staff were appointed for examination duty only to assist their kith and kin; there was no proper sitting arrangement in the examination centre and the candidates had been permitted to sit in the examination halls as they liked; outsiders were permitted to enter inside the examination centre; photo copies of the question papers had reached the private coaching centers; and the key to the multiple choice questions had reached many of the candidates before the examination had started etc. etc. In such facts the Apex Court interfered with the examination. In the present case there is no allegation of any discrimination having been made inter se between the candidates and there is no complaint with regard to the fairness of the conduct of examination. It is only the procedure adopted by the Commission which is questioned, which also, as discussed above, has been fair and equal for all. As such, the ratio of the aforesaid judgment would not be apply to the present case.

The case of Union of India Vs. Tarun K. Singh (2003) 11 SCC 768 is also distinguishable on facts. In the said case the enquiry had revealed gross irregularities and illegalities and consequently the process of selection to a public office, which stood vitiated by adoption of large scale mall practice, was not sustainable. Such is not the case in the present petitions.

In the case of Union of India Vs. Rajesh P.U., Puthuvalnikathu (2003) 7 SCC 285 the Apex Court held that where it was possible to weed out the beneficiaries of irregularities or illegalities from amongst the selected candidates, there was no justification to deny appointment to those selected candidates whose selection was not vitiated in any manner. The Supreme Court further held in such a case that "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 decision to be irrational." Holding that the judgment of High Court which adopted a practical, pragmatic, rational and realistic solution to the problem, the appeals were dismissed with the direction that the appointments be given within sixty days.

In the facts of the case in hand as have been narrated in the preceding paragraphs, as well as after having come to the conclusion that the grounds for cancellation of the selection process are all totally non-existent and vague, in my view, the cancellation of the selection process and refusal to give appointment to the candidates on the basis of the selections held, was not justified. I am thus of the opinion that the cancellation of the selection process by the impugned order dated 30.9.2004 passed by the respondent-Corporation is unjustified and liable to be quashed.

In any case, if there was any irregularity with regard to the action of the Commission in forwarding the list of selected candidates directly to the various regions, then the Corporation could amend or correct the same by suitably transferring such candidates from one region to another. Further, it may be observed that the selected candidates to whom appointment letters have been issued are to be on adhoc basis, on probation for a fixed period. In such a case, if any selected candidate is found to be sub-standard or unsuitable, then on completion of his probation, for valid reasons, the Corporation has an option of not confirming him on the said post. This observation, of course, would not give a freehand to the Corporation to indiscriminately end the service of the selected candidates after completion of probation period. The same may be done so only for good and valid reasons.

For the foregoing reasons, these writ petitions stand allowed. The order dated 30.9.2004 passed by the Chairman-cum-Managing Director of the Corporation as well as the consequential orders passed in the individual cases, all are quashed. The candidates who had been given appointment in pursuance to the select list and had joined the service, would be permitted to rejoin the service and be given the benefit of continuity of service and also be paid arrears of salary; those who had been issued appointment letters but had not been permitted to join, be given regular appointments with all consequential benefits; and those candidates who had not been issued appointment letters but their names found place in the select list, would be issued appointments letters within sixty days and be also given all consequential benefits of service. However, there shall be no order as to costs.

Dt/-  August 7, 2007

PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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