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Lal Bahadur v. State Of U.P. And Others - WRIT - A No. 6425 of 2005  RD-AH 3532 (1 March 2007)
1.Civil Misc. Writ Petition No. 6425 of 2005
Lal Bahadur Versus State of U.P. and others
2.Civil Misc. Writ Petition No. 7923 of 2005
Amit Kumar Tripathi Versus State of U.P. and others
3.Civil Misc. Writ Petition No. 6504 of 2005
Ashok Singh Versus State of U.P. and others
4.Civil Misc. Writ Petition No. 7253 of 2005
Prem Narain Tripathi Versus State of U.P. and others
5.Civil Misc. Writ Petition No. 15546 of 2005
Santosh Giri Versus State of U.P. and others
6.Civil Misc. Writ Petition No. 5095 of 2005
Awadhesh Kumar Versus State of U.P. and others
7.Civil Misc. Writ Petition No. 5716 of 2005
Shashi Bhushan Shaka Versus State of U.P. and others
8.Civil Misc. Writ Petition No. 5717 of 2005
Km. Mala Kumari Versus State of U.P. and others
9.Civil Misc. Writ Petition No. 12683 of 2005
Raj Kumar Srivastava Versus State of U.P. and others
10.Civil Misc. Writ Petition No. 36523 of 2005
Ram Krishna Tripathi Versus State of U.P. and others
Hon'ble Sudhir Agarwal, J.
Heard Sri Ranjeet Saxena and Sri V.S. Gupta holding brief on behalf of Sri Ashok Khare, appearing for the petitioners.
All these writ petitions involve similar factual and legal issues and, therefore, as requested by learned counsel for the parties have been heard together and are being decided by this common judgment.
The writ petitions arising out of the order dated 8th January 2005 passed by the Consolidation Commissioner, U.P., Lucknow, cancelling the selection held for the post of Junior Clerk, Sarniyak and Stenographer in the office of Settlement Officer (Consolidation) (hereinafter referred to as the S.O.C.), Siddharth Nagar pursuant to the advertisement dated 18th August 2004. The facts as stated in the writ petitions are that the S.O.C. Siddharth Nagar got an advertisement published on 18th August 2004 seeking application for recruitment to the following posts:
Name of department
Post and pay scale
Other backward castes
The selection was to be made in accordance with the U.P. Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of the U.P. Public Service Commission) Rules 2002 (hereinafter referred to as 2002 Rules) as amended by U.P. Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of the U.P. Public Service Commission) (First Amendment) Rules 2003. All the petitioners being eligible applied pursuant to the aforesaid advertisement whereafter typing and stenography test was held between 20th to 24th September 2004 and candidates found successful therein were called for interview on 5th and 6th October 2004. A list of selected candidates was declared by SOC Siddharth Nagar, declaring 11 candidates successful as under:
Junior Clerk (Kanistha Lipik)
Name of selected candidate
Sri Ram Krishna (General Category)
Sri Raj Kumar Srivastava (General Category)
Sri Santosh Giri, (Other Backward class)
Sri Awadhesh Kumar (Scheduled Caste)
Km. Sushama (Scheduled Caste)
Sri Shashi Bhushan Shaka (Scheduled Caste)
Name of selected candidate
Sri Amit Kumar Tripathi (General Category)
Sri Prem Narain Tripathi (General Category)
Km. Mala Kumar (Other Backward class)
Sri Ashok Singh (Other Backward class)
Sri Lal Bahadur (Scheduled Caste)
It appears that some complaints were made regarding irregularities committed in the aforesaid selection which was also forwarded by one Sri Kamal Yusuf Mullick, Chairman, U.P. Waqf Vikas Limited whereupon the Consolidation Commissioner vide order dated 24.11.2004 directed the District Magistrate, Siddharth Nagar to conduct an inquiry whereupon the Additional District Magistrate (Finance and Revenue) Siddharth Nagar held inquiry and submitted a report dated 29.11.2004 pointing out various irregularities committed in the aforesaid selection. He recommended for cancellation of the entire selection. The District Magistrate, Siddharth Nagar agreeing with the said inquiry report forwarded the same vide letter dated 4.12.2004 to the Commissioner, Consolidation who thereafter passed the order dated 8.1.2005 cancelling the entire selection whereagainst the selected candidates have preferred this writ petition challenging the same inter alia on various grounds, namely, that Consolidation Commissioner has no authority to cancel the selection since the appointing authority of Class III was SOC, no opportunity was afforded to the petitioners before cancelling the entire selection though they were selected candidates and in violation of natural justice, the entire selection could not have been cancelled. It is also urged that the selection was held in accordance with the Rules and whatever irregularities pointed out by the authorities concerned were minor and could not have vitiated the entire selection but could have cured by the authorities concerned, hence the decision taken by the respondent no.2 in cancelling the entire selection is arbitrary and violative of Articles 14 and 16 of the Constitution of India.
A counter affidavit has been filed on behalf of respondents stating that the petitioners were merely selected candidates and have no indefeasible right of appointment and, therefore, against the order cancelling the entire selection, the writ petition is not maintainable; the selection was held by the SOC, Siddharth Nagar committing several irregularities which were inquired into on the directions of Consolidation Commissioner who is the head of the Department and on the basis of the report received from the District Magistrate, verifying those irregularities, the Consolidation Commissioner passed the order cancelling the entire selection. It is said that under the Rules, vacancies were required to be notified not only in daily newspapers but also to the employment exchange as well as notice board but the said mandatory provision was ignored by the SOC, Siddharth Nagar while holding the aforesaid selection. Further the provisions of Section 3(6) of U.P. Public Services (Reservation of Vacancies for Scheduled Castes and Scheduled Tribes and other Backward Classes) Act 1994 (hereinafter referred to as "the 1994 Act")has been violated and candidates belonging to reserved category securing higher marks have not been considered against unreserved vacancies though they have secured marks more than the general category candidates which was apparently inconsistent with the provisions contained in Section 3(6) of 1994 Act.
The petitioners have filed rejoinder affidavit denying the allegations contained in the counter affidavit and reiterated what they have said in the writ petition.
Learned counsel for the petitioners raised mainly three arguments:
(1)That the selection having been held and the petitioners declared successful, the selection could not have been cancelled and the respondents acted arbitrarily without giving notice or opportunity to the petitioners.
(2)The order of cancellation has been passed pursuant to a complaint made by a State Minister and, therefore, it is a decision based on political consideration.
(3)The impugned order is based on incorrect reasoning and therefore is arbitrary. The reasons assigned in the order impugned in the writ petitions are incorrect and shows misreading of the provisions considered by the authorities.
The learned Standing Counsel opposing the writ petitions has reiterated its stand taken in the counter affidavit.
I have heard learned counsel for the parties and perused the record. From the facts stated above, it is evident that no appointment letter has been issued to the petitioners and on the other hand, after declaration of the result the Consolidation Commissioner got an inquiry conducted and on the basis of the report submitted by the Inquiry Officer, passed the order impugned in the writ petitions, cancelling the entire selection in respect to district Siddharth Nagar but in other districts no irregularities having been found, appointment letters have been issued to the selected candidates. It is not disputed that in every district the selection is held separately and the impugned selection pertained to district Siddharth Nagar. As such there is no direct concern or relevance with the selection held in other districts of U.P. The question as to whether the petitioners being the best were the only selectees whose names find mention in the select list, can it be said that they have a cause of action to challenge the order of the authority cancelling the entire selection only for the reason as they have been selected. This leads to the issue as to what is the right of a selected candidate. The issue is no more res integra since the law is now well settled that a selected candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list since the employer is under no legal duty to fill up any of the vacancies and it can always decide to leave the vacancy unfulfilled or vacant for a valid reason.
In Shankarasan Dash V. Union of India, AIR 1991 SC 1612, a Constitution Bench of the Hon'ble Apex Court held "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied.".
The right of select list candidate whether enforceable by seeking a writ of mandamus, has also been considered in the case of State of U.P. and others Vs. Raj Kumar Sharma and others 2006(3) SCC 330 wherein it has been held " selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates' name in the list does not confer any right to be appointed, even if some of the vacancies remained unfilled and the concerned candidates cannot claim that they have been given a hostile discrimination.
At this stage learned counsel for the petitioners, however, relying on a judgment of the Hon'ble Apex Court in Jai Narain Ram Vs. State of U.P. and others, AIR 1996 SC 703, sought to argue that the petitioner has a right to seek appointment to a post and it is a constitutional right to equality. The aforesaid judgment has been considered by the Hon'ble Apex Court itself subsequently in Bihar State Electricity Board Vs. Suresh Prasad and others (supra) wherein also a similar argument was advanced relying on the aforesaid judgment and the Hon'ble Apex Court in para-8 of the judgment held as under:
"Before concluding, we may refer to two judgments cited on behalf of the respondents. In Jai Narain Ram V. State of U.P. and others reported in ((1996) 3 SCC 332) four out of fifteen posts were reserved for members of the scheduled castes. Four candidates were selected by the Public Service Commission. They did not join the service. As a consequence, four reserved posts fell vacant and they were required to be filled up by the reserved candidates alone. The PSC had recommended the names of four candidates who did not join. The appellant could not be recommended as there was no request by the Government for putting the appellant in the waiting list. Therefore, the appellant approached the High Court for a direction to the PSC to recommend his name of appointment in the Accounts Service. The High Court dismissed the writ petition on the ground that the appellant was not put in the select list and, therefore, no direction could be given to appoint him in the service. Being aggrieved, the appellant came before this Court by way of special leave petition, in which he alleged that since the selected candidates did not join, the four reserved posts fell vacant and they were required to be filled up by the reserved candidates and since he was a reserved category candidate duly selected, he was entitled to be appointed. In the counter affidavit, it was conceded by the respondent before this Court that the reserved posts can be filled up by the candidates of the reserved categories only. In the circumstances, this Court took the view that in view of the admission made on behalf of the respondent Government that reserved posts can be filled up by the candidates of reserved categories only, the Government was directed to issue an order of appointment to the appellant. A bare reading of the judgment shows that the matter was concerning filling of a reserved post. Further a concession was made in the counter affidavit filed on behalf of the respondent-Government that since the posts were reserved posts, they can only be filled up by the candidates of reserved categories. In the present case, we are not concerned with the appointment to reserved posts. Therefore, the judgment of this Court in Jai Narain Ram v. State of U.P. and others (supra) has no application to the facts of the present case. AIR 1996 SC 703:1995 AIR SCW 4725: 1996 Lab IC 577."
Thus, as observed by the Hon'ble Apex Court in Bihar State Electricity Board Vs. Suresh Prasad and others (supra), since the post in question was of reserved category and a concession was made in the counter affidavit filed on behalf of the Government, it was directed to be filled in but there is no general law laid down therein that a select list candidate has a right to seek appointment.
Earlier also the case of Jai Narain Ram Vs. State of U.P. and others (supra) came up for consideration in Ashwani Kumar Singh V. U.P.Public Service Commission and others, AIR 2003 SC 2661 and there also the Hon'ble Apex Court held that the said judgment was rendered in a different factual and legal background and relating to non-appointment of persons belonging to reserved category. As would be evident from the following " it shall be necessary to consider whether Jai Narain Ram (supra) has application to the facts of the case. A bare reading of the judgment shows that it was rendered in a different factual and legal background, and related to non-appointment of the persons belonging to reserved category. This is evident from even a cursory reading of paragraphs no. 6 and 7 of the judgment. It has not laid down as a rule of universal application that whenever vacancy exists persons who are in the merit list perforce have to be appointed."
That being so, it cannot be said that the authorities erred in law in cancelling the entire selection without affording any opportunity to the petitioners inasmuch as since the petitioners had no right to get appointment, in my view the principles of natural justice would not be attracted in such a case. Since the entire selection had been cancelled on account of various irregularities going to the root of the matter, it cannot be said that any individual right of the petitioners is affected attracting the principles of natural justice.
The next question as to whether the inquiry conducted by the people's representative is vitiated in law being a decision based on political consideration merely for the reason that the complaint was made or received from a people's representative. Here at this stage, it would be necessary to understand the position and status of people's representative like Member of Legislative Assembly or Member of parliament. In this case, the Consolidation Commissioner had not taken decision merely on the complaint received from Sri Kamal Yusuf Mullick, Chairman, U.P. Waqf Vikas Limited but he got the matter investigated into independently through the District Magistrate, Siddharth Nagar and pursuant to the inquiry report submitted by the District Magistrate, he (Consolidation Commissioner) has applied his own mind and passed a detailed and reasoned order cancelling the entire selection. Hence, it cannot be said that the decision of the Consolidation Commissioner is solely based merely on the complaint of the people's representative but that was only an information received by him whereupon he had got the matter probed into on his own having taken an independent decision. As such, the order impugned in the writ petitions cannot be said to be vitiated solely for the reason that the complaint was made by a people's representative.
The last submission as to whether the impugned order passed by the Consolidation Commissioner is vitiated in law since the reasoning contained therein are nonest or such which do not require the cancellation of entire selection but at the best the error, if any, could have been rectified by repreparation of the result.
The first ground taken by the Consolidation Commissioner is that the vacancies were not advertised in accordance with Rule 5(1) of 2002 Rules as amended in 2003 which reads as under:
"5. Procedure for direct recruitment.--(1) For making direct recruitment the vacancies shall be notified in the following manner:-
(i) by issuing advertisement in daily newspaper having
(ii)by pasting the notice on the notice board of the
office or by advertising through Radio/Television
and other Employment newspapers; and
(iii)by notifying vacancies to the Employment
A perusal of the aforesaid rule shows that besides advertising the vacancies in daily newspaper having wide circulation the authorities are also to advertise the same through radio, television and employment newspapers and also by notifying the vacancies to the employment exchange. The purpose of such advertisement in various ways is to give widest publicity to the vacancies so as to give an opportunity to all the eligible candidates and enable the maximum number of candidates to apply for such recruitment. The various modes and manners referred to under Rule 5(1) are not mutually exclusive but it provides that the vacancies shall be notified in all the aforesaid manners, therefore, advertisement of vacancies in the various manners prescribed under Rule 5(1) is mandatory. The notification of vacancies to employment exchange under Rule 5(1)(iii) is that the objective to satisfy the legal requirement of such compulsory notification of vacancies to the employment exchange pursuant to "Employment Exchanges (Compulsory Notification of Vacancies) Act 1959 (hereinafter referred to as "the 1959 Act"), which envisages such notification compulsory by virtue of Section 4 thereof which reads as under:
"4. Notification of vacancies to employment exchanges.--(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed.
(2) The appropriate Government may, by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class of category of establishments in private sector, shall before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.
(3) The manner in which the vacancies referred to in sub-section (1) or sub-section (2) shall be notified to the employment exchanges and the particulars of employments in which such vacancies have occurred or are about to occur shall be such as may be prescribed.
(4) Nothing in sub-section (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those sub-sections."
It is worthy to mention that non-compliance of Section 4 is penal in nature for which a penalty is prescribed under Section 7 of 1959 Act. Therefore, in view of Section 4 of the 1959 Act read with Rule 5(1) (3) of 2002 Rules as amended in 2003, in my view the notification of vacancies to the employment exchange is mandatory and non-compliance thereof would render the selection to be illegal and contrary to the provisions of the Rules. It is not disputed in the case in hand that the vacancies in this case were advertised only in newspapers and were not notified to the employment exchange at all. Therefore, it cannot be said that the decision of the Consolidation Commissioner cancelling the entire selection, treating non-compliance of Rule 5(1)(3) of 2002 Rules was contrary to the Rules.
Now coming to the second aspect of the matter that the candidates belonging to various categories, namely, general, scheduled castes and other backward classes have been selected separately without observing the provisions of Section 3(6) of the 1994 Act, it cannot be disputed that if such exercise had not been undertaken, it is always permissible and possible to reprepare the select list afresh observing the provisions of Section 3(6) of the 1994 Act, namely, where the reserved category candidate has secured more marks than the last selected general candidate such reserved category candidate has to be declared successful against unreserved seats and thereafter a fresh select list should have been prepared but here there is another irregularity noticed on bare perusal of the advertisement that against 6 posts of junior clerk, 4 were kept reserved, namely, 3 for scheduled caste and 1 for other backward classes and only two were left for general category candidates. Similarly, the sole post of Saranyiyak was reserved for scheduled caste candidate and against 7 posts of stenographers 3 were reserved for scheduled castes and 2 for other backward classes leaving only 2 posts unreserved, meaning thereby that the reservation applied to the vacancies was more than 50%. It is not the case of the respondents that the vacancies notified were backlog vacancies and, therefore, on the face of it from the advertisement, it cannot be said that the selection was notified by the respondents in valid and legal manner inasmuch as any recruitment not more than 50% can be reserved but in the impugned selection reservation exceeds 50% which is ex facie illegal being violative of Article 16 of the Constitution of India as held by the Apex Court in Indra Sawney Vs. Union of India and others-AIR 1993 SC 477=1992 Supple. (3) SCC 217.
Since the aforesaid irregularities are evident and apparent from a bare perusal of the advertisement though the same is not pointed out in the order impugned in the writ petitions, the said irregularities being so apparent, this Court cannot ignore the same and in these circumstances, it cannot be said that the respondent no.2 has erred in law in cancelling the selection impugned in the writ petitions and the order impugned in the do not warrant any interference.
The only submission of law required to be considered is whether the Consolidation Commissioner could have passed the order of cancellation of selection though the appointing authority for the posts in question is SOC, Siddharth Nagar. In my view, the aforesaid submission has to be noted for rejection for the reason that it is not the case where the petitioners were appointed and thereafter have been dismissed or removed attracting the provisions of Article 311(1) of the Constitution. The petitioners are merely the candidates who have been declared successful in the recruitment but yet to be appointed. The Consolidation Commissioner being head of the Consolidation Department and being the highest authority of the Department, if at any point of time, it comes to his notice that any authority subordinate to him has acted illegally or any action is not consistent with law, he is competent to pass appropriate order setting at naught such illegal action of the subordinate authority. Obviously, where some order is passed by the subordinate authority in exercise of statutory power in such matter, the higher authority may not interfere and nullify the statutory order except in accordance with the power conferred upon it, if any, under the statute itself but where the authority has not exercised any such statutory power, the higher authority can always scrutinize the correctness of the orders passed by the subordinate authority and can pass appropriate orders as required in the facts and circumstances of the case. Learned counsel for the petitioners could not show to the Court that the select list in the impugned selection is such which could not have been cancelled by the higher authority and the order passed by the Consolidation Commissioner is contrary to the statute. In this view of the matter, it cannot be said that the Consolidation Commissioner has acted illegally in passing the order impugned in the writ petitions cancelling the entire selection.
In the result, the writ petitions fail and are hereby dismissed. However, there shall be no order as to costs.
Dated: 1st March 2007
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