Sudhir Agarwal, J.
1. Heard Sri Ranjeet Saxena and Sri V.S. Gupta holding brief on behalf of Sri Ashok Khare, appearing for the petitioners and the learned Standing Counsel for the respondents.
2. 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.
3. The writ petitions arise out of the order dated 8 th January 2005 passed by the Consolidation Commissioner, UP., Lucknow, cancelling selection held for the posts 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 18 th August 2004.
4. The facts as stated in the writ petitions are that the S.O.C. Siddharth Nagar got an advertisement published on 18th August 2004 inviting applications for recruitment to the following posts:
---------------------------------------------------------------------Name of Name of Total Scheduled Other General department Post and pay posts Caste backward categoryscale castes ---------------------------------------------------------------------Consolidat- Junior Clerk 06 03 01 02ion 3050-4590---------------------------------------------------------------------Saraniyak 01 013050-4590---------------------------------------------------------------------Stenographer 07 03 02 024000-6000---------------------------------------------------------------------
5. The selection was to be made in accordance with the UP. Procedure for Direct Recruitment for Group 'C Posts (Outside the Purview of the UP. Public Service Commission) Rules 2002 (hereinafter referred to as 2002 Rules) as amended by UP. Procedure for Direct Recruitment for Group 'C Posts (Outside the Purview of the UP. 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 20 th 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)--------------------------------------------------------------------------------S.No. Roll No. Name of selected candidate--------------------------------------------------------------------------------1. G-23 Sri Ram Krishna (General Category)--------------------------------------------------------------------------------2. G-52 Sri Raj Kumar Srivastava (General Category)--------------------------------------------------------------------------------3. OBC-18 Sri Santosh Giri, (Other Backward class)--------------------------------------------------------------------------------4. S.C.60 Sri Awadhesh Kumar (Scheduled Caste)--------------------------------------------------------------------------------5. S.C.61 Km. Sushama (Scheduled Caste)--------------------------------------------------------------------------------6. S.C.72 Sri Shashi Bhushan Shaka (Scheduled Caste)--------------------------------------------------------------------------------Stenographer--------------------------------------------------------------------------------S.No. Roll No. Name of selected candidate--------------------------------------------------------------------------------1. G-10 Sri Amit Kumar Tripathi (General Category)--------------------------------------------------------------------------------2. G-11 Sri Prem Narain Tripathi (General Category)--------------------------------------------------------------------------------3. OBC-28 Km. Mala Kumar (Other Backward class)--------------------------------------------------------------------------------4. OBC-22 Sri Ashok Singh (Other Backward class)Saraniyak--------------------------------------------------------------------------------Saraniyak--------------------------------------------------------------------------------1. T Sri Lal Bahadur (Scheduled Caste)--------------------------------------------------------------------------------
6. 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, UP. Waqf Vikas Limited whereupon the Consolidation Commissioner vide order dated 24.11.2004 directed the District Magistrate, Siddharth Nagar to get an inquiry conducted. 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 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 order dated 8.1.2005 cancelling the entire selection whereagainst the selected candidates have preferred these writ petitions 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 it is in violation of natural justice. It is also urged that the selection was held in accordance with the Rules and whatever irregularities pointed out by the authorities concerned in the impugned order were minor and could not have vitiated the entire selection but could have been cured by the authorities concerned, hence the decision taken by the respondent No. 2 for cancelling the entire selection is arbitrary and violative of Articles 14 and 16 of the Constitution of India.
7. 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 enquired 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 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 in conducting the aforesaid selection. Further 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 selected general category candidates which was apparently inconsistent with the said provision.
8. The petitioners have filed rejoinder affidavit denying the allegations contained in the counter affidavit and reiterating what they have said in the writ petitions.
9. 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 show misreading of the provisions by the authorities.
10. The learned Standing Counsel opposing the writ petitions has reiterated its stand taken in the counter affidavit.
11. 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 where no irregularities were 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 UP. The question as to whether the petitioners being 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 that 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 vacany and it can always decide to leave the vacancy unfulfilled or vacant for a valid reason.
12. In Shankarasan Dash V. Union of India : (1992)IILLJ18SC , 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.'
13. The right of a select list candidate whether enforceable by seeking a writ of mandamus, has also been considered in State of U.P. and Ors. v. Raj Kumar Sharma and Ors. : (2006)3SCC330 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.'
14. At this stage learned Counsel for the petitioners, however, relying on a judgment of the Hon'ble Apex Court in Jai Narain Ram v. State of U.P. and Ors. : AIR1996SC703 , sought to argue that the petitioners have a right to seek appointment to the posts and it is a constitutional right to equality. I am unable to agree. The aforesaid judgment has been considered by the Hon'ble Apex Court itself subsequently in Bihar State Electricity Board v. Suresh Prasad and Ors. : AIR2004SC1724 (supra) wherein also a similar argument was advanced 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 Ors. reported in : (1996)IILLJ92SC 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 if 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 Ors. (supra) has no application to the facts of the present case. : AIR1996SC703 .
15. Thus, as observed by the Hon'ble Apex Court in Bihar State Electricity Board v. Suresh Prasad and Ors. (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.
16. Earlier also the case of Jai Narain Ram v. State of U.P. and Ors. (supra) came up for consideration in Ashwani Kumar Singh v. U.P. Public Service Commission and Ors. : AIR2003SC2661 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.'
17. 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.
18. The next question as to whether an inquiry conducted at the instance or complaint by people's representative would be 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 a people's representative like Member of Legislative Assembly or Member of parliament. This aspect has already been dealt with by a Division Bench in Narendra Kumar Rai v. State of U.P. and Ors. 2002(1) UPLBEC 369 and it has been observed:
We are clearly of the opinion that from the mere fact that in a Government servant is transferred on the basis of a complaint made by a MLA or MP or a leader of the political party, it cannot be held that the same is mala fide and the transfer order cannot be struck down on the said ground alone without there being anything more. A MLA or MP is the representative of the people and common public has access to him. Often it is very difficult for a common man to meet the higher officers and to bring to their notice the misdeeds or the wrong way of functioning of a Government servant at a lower level. It is not possible for a common man to go to the capital of the State namely, Lucknow, and then to meet the higher officers to lodge a complaint against the wrong manner of functioning of a Government servant. The MLA and MP visit their constituency frequently and meet the members of the public. It is far easier for the public to lodge a complaint against the improper functioning of a Government servant with their representative namely the MLA or MP of the area than with the higher officers. If in such circumstances, the MLA or MP takes up the matter and brings to the notice of the higher officers or the minister of the concerned department about the misdeeds of a Government servant, no exception can be taken to such a course of action. The representatives of the people (MLA and MP) hold responsible constitutional position and there is no presumption that whenever they drew attention to the misdeeds of a Government servant they do so with mala fide intention. A transfer order passed soon after a letter or complaint lodged by MLA or MP or a political person cannot be branded as having been done at the dictate of such a person. There is no presumption that the authority passing the transfer orders has not applied his independent mind. It is quite likely that the authority was not aware of the situation and after the full and correct facts were brought to his notice he decides to take appropriate action on objective consideration. We are, therefore, clearly of the opinion that without there being anything more, the mere fact that a transfer order has been passed soon after a complaint has been sent by MLA or MP or a political person to the minister or superior officers of the concerned department, it cannot be branded as having been passed without application of mind or on the dictate of a political person.
19. The position of a Minister or Minister of the Department stands on a much higher footing. In Shami Ahmad v. State of U.P. and Ors. (Special Appeal No. 138 of 2007) decided on 1.2.2007 a Division Bench of this Court (of which I was a Member) held as under:
The position of a Minister of the Department stands on a much higher footing The executive power of the state is exercised in the manner provided in the constitution and the various provisions made thereunder. The Governor runs the executive Government of State with the aid and advice of the Chief Minister and the counsel of Ministers which exercise powers and perform its duties by the individual Ministers as public officers with the assistance of the bureaucracy working in various departments and corporate sectors etc. Though the executive orders are required to be authenticated in the manner prescribed under Article 166(3) i.e. they are expressed in the name of the Governor but each Minister is individually and collectively responsible for the actions, acts and policies. They are accountable and answerable to the people. Their powers and duties are regulated by law and the rules. The legal and moral responsibility or the liability for the acts or omissions, duties performed and policy laid down rest solely on the Minister of the Department.
20. Similar issue came up for consideration before the Apex Court In Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors. : (1997)1SCC35 and in respect to the position of the Minister, the Apex Court held:
They are indictable for their conduct or omission, or misconduct or misappropriation. The Council of Ministers are jointly and severally responsible to the legislature. He/they is/are also publicly accountable for the acts or conducts in the performance of duties.
21. Therefore, merely for the reason that a complaint has been made or some information has been communicated by a people's representative or Minister, an action taken pursuant thereto would not be vitiated merely for the reason that the complaint has been made or the matter has been initiated at the instance of M.L.A., M.P. Or Minister. However, the position factually as available in the case in hand is different, inasmuch as, though the complaint appears to be made by Sri Kamal Yusuf Mullick, Chairman, U.P. Waqf Vikas Limited but the Consolidation Commissioner got the matter investigated independently through the District Magistrate, Siddharth Nagar and pursuant to the inquiry report submitted by the District Magistrate, (the 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 got the matter probed on his own and thereafter took 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.
22. The last submission which needs consideration is whether the impugned order passed by the Consolidation Commissioner is vitiated in law since the reasonings contained therein are honest or such which do not warrant the cancellation of entire selection and at the best, the error, if any, could have been rectified by repreparation of the result.
23. 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 wide circulation;
(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 Exchange.
24. A perusal of the aforesaid rule shows that besides advertising vacancies in daily newspaper having wide circulation, the authorities are also to advertise the same through radio, television and employment newspapers and also to notify vacancies to the employment exchange. The purpose of advertisement in so many ways is to give widest publicity to the vacancies to give opportunity to all the eligible candidates enabling 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 provide 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 consistent with and 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 us 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.
25. 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 selection 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 as mandatory, is erroneous.
26. The next reasoning is that the candidates belonging to various categories, namely, general, scheduled castes and other backward classes have been selected separately without observing the provision of Section 3(6) of the 1994 Act. It cannot be disputed that if such an exercise has not been undertaken, it is always permissible and possible to prepare the select list afresh applying Section 3(6) of the 1994 Act, namely, where a reserved category candidate has secured more marks than the last selected general candidate such reserved category candidate has to be declared successful against unreserved seat and thereafter a fresh select list could have been prepared. But there is another irregularity evident on a bare perusal of the advertisement that against 6 posts of junior clerk, 4 were kept reserved, i.e., 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 kept reserved for a 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 reservation applied to the vacancies is 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 is invalid and illegal inasmuch as in any recruitment, not more than 50% can be reserved but in the impugned selection reservation exceeds 50% which is ex facie illegal and violative of Article 16 of the Constitution of India as held by the Apex Court in Indra Sawney v. Union of India and Ors. : AIR1993SC477 .
27. 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 irregularity is so apparent that 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.
28. The last submission 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 order 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 any statutory provision. It, thus, cannot be said that the Consolidation Commissioner has acted illegally in passing the order impugned in the writ petitions cancelling the entire selection.
29. In the result, the writ petitions fail and are hereby dismissed. However, there shall be no order as to costs.