Vimal Pratap Singh Son of Kamal Singh Yadav and ors. Vs. State of U.P. Through Secretary, Niyay Govt. of U.P., - Court Judgment

Excerpt:
- - 11 candidates joined on 2.90.2004 and one on 3.9.2004. however, no complaint by any body, was moved during the period from 1.9.2004 to 3.9.2004. thus, the impugned order was not the result of complaint by any failed candidate. ' 6. in order to verify the reasons for which the results as well as the appointments were cancelled, i requested the registrar (canfidential), to place the original files before me. the district judge reported that on 27.7.2004 he had written to the high court seeking permission to cancel the examination for the reasons mentioned in his letter dated 27.7.2004. he was, however, granted permission by the then administrative judge on 14.8.204 to evaluate the answer books and states in paragraph 4 of the this letter that he was clearly directed that the results should not be declared until a clearance is given to him. on 21.8.2004 he was given direction by the administrative judge to maintain transparency in the evaluation of answer books and that the mark shells were required to be sent even to those persons, who had failed in the examinations. this clearly shows that the district judge had acquired the knowledge of the fact that the administrative judge by his order dated 28.8.2004 had restained him to declare the results and that before the orders could be served upon him, for which the reasons of delay are not explained on record, the district judge made appointments and thereafter promptly cancelled them on 3.9.2004. i am, therefore, constrained to hold that the district judge not only violated the orders of this court with impunity, but also tried to justify himself by making insinuation and attributing motives to the high court on the questions of giving opportunity of hearing to the candidates. the law with regard to applicability to the principles of natural, justice in such cases is fairly well settled. 97. though the two rules of natural justice, namely, nemo judex in causa sua and audi alleram partem, have now a definite meaning and connotation in law and their content and implications and well understood and firmly established, they are nonetheless not statutory rules. the anxiety of the administrative judge to issue the marks sheet to even those who had failed, fully demonstrated his desire to be absolutely fair in selections.sunil ambwani, j.1. heard shri ashok khare, senior advocate assisted by sri v.d. chauhan, learned counsel for the petitioner, and sri amit sthelkar for respondents. counter and rejoinder affidavits have been exchanged. with the consent of both the parties, this writ petition has been heard and is being finally decided at the admission stage.2. all the petitioners were candidates for direct recruitment on nine vacancies of class iii posts in the judgeship at etah. out of these six vacancies were on the post of apprentices, two on the posts of copyist and two, on the posts of stenographers, the advertisement was published in news paper 'zila times' dated 14.11.2003 and 'rojgar sangrah'. the petitioners 1 to 9, 11 and 12 applied for clerical posts while petitioner 10 applied for the post of stenographer. the stenography test was held on 13.12.2003. the written examination was held on. 14.12.2003 in which all the petitioners participated. the select list was approved and forwarded . by the chairman of the examination committee to district judge, etah on 1.9.2004. on the same day the district judge accepted the report and published the select list. petitioners 1, 9, 10, and 11 belong to o.b.c. category. petitioners 2, 3, 4, 8 and 12 belongs to general category, while petitioners 5, 6 & 7 belongs to. scheduled tribe category. all the petitioners were selected and that district judge, etah issued appointment letters to the petitioners on the same day on 1.9.2004. they submitted their joining on 2.9.2004,3. by the impugned order dated 3.9.2004 the district judge, etah has cancelled the appointments with immediate effect. the order canceling the appointments reads as under:'3.9.2004ordersince the examination results regarding recruitment of class iii employees conducted in the year 2003, have been cancelled, the appointment does subsequent thereto also stand cancelled with immediate effect.sd- 3.9.2004(vikrama jeet singh)district judge, etah3.9.2004'4. sri ashok khare, senior advocate submits that the order dated 3.9.2004 is arbitrary, discriminatory and is violative of article 14 & 16 of the constitution of india. the petitioners were not given any opportunity of hearing before their appointments were cancelled. the recital in the order to the effect that the selection proceedings have been cancelled is with reference to some orders issued by the high court on administrative side. the petitioners, however, have not been able to obtain a copy of the order. it is contended that the selection proceedings were conducted in conformity with the rules governing for the recruitment and also the administrative instructions issued by, the high court from time to time and does not suffer from any infirmily. on 18.9.2004, a statement was made that the advertisement was also published in 'dainik jagaran' and 'amar ujala' new papers. a supplementary affidavit was filed annexing therewith a copy of news paper 'dajnk jagaran' published from agra dated 24.10.2003, advertising the selections. it is contended that the orders canceling selections and the appointment letters deserve to be set aside by this court.5. a counter affidavit of sri laxmi narain, additional district judge, fast track courts no. 1, etah has been filed on behalf of respondent no. 3. paragraph 16 & 17 of the counter affidavit relevant for the purpose of this case are quoted as below;'16. that the facts stated in paras 17, 18, 19, 20, 21, 22 of the writ petition are incorrect and are denied. it is stated that the examination results were declared on 01.9.2004. people joined on 2.9.2004 and 3.9.2004. then, on telephone the district judge, etah was ordered by the hon'ble the administrative judge on 3.9.2004, at 01.45 p.m., that the result be cancelled. accordingly the district judge, etah canceled the results on 3.9.2004. the same day i.e. on 3.9.2004, a fax message was received at 03.45 p.m. indicating the orders of the hon'ble the administrative judge that the results be not declared. however, the results were already declared by then and people had joined too. as such the results and appointments were cancelled by the district judge, etah on telephonic order on 3.9.2004 was after 01.45 p.m. then a letter dated 08.9.2004 was received containing the orders of the hon'ble the administrative judge that the results be kept in abeyance; however, it was not possible to do so, because, as stated above, the results and appointments were already cancelled on 3.9.2004, after 01.45 p.m.17. that the facts stated in para 23 of the writ petition are incorrect and are denied. it is stated that the results were declared on 01.9.2004 and appointments were issued on the same day. 11 candidates joined on 2.90.2004 and one on 3.9.2004. however, no complaint by any body, was moved during the period from 1.9.2004 to 3.9.2004. thus, the impugned order was not the result of complaint by any failed candidate. no enquiry is being done regarding examination etc. it is further stated that the district judge is under direct subordination of the hon'ble the administrative judge, and, therefore in the circumstances, mentioned above, he cancelled the results in obedience of said oral orders of the han'ble the administrative judge. the cancellation of appointment was, therefore, a natural falls out of the said cancellation of the results.'6. in order to verify the reasons for which the results as well as the appointments were cancelled, i requested the registrar (canfidential), to place the original files before me. these records include the directions of the administrative judge, and the reports sent by sri vikrama jeet singh, district judge, etah to the court dated 8.9.2004, 14.9.2004 and 20.9.2004. i find that this correspondence unfolds a very unusual sequence of events in which the examinations were conducted and results were declared. inspite of clear directions of the court restraining the district judge to declare the results, for verifying the selection process. the examination committee prepared the results, which were accepted by the district judge and appointment letters were issued on the same day on 1.9.2004 and all but one of the candidates were given joining on the very next day.7. the advertisement for selections, was published on 14.11.2003. the test of short, hand was taken on 13.12.2003. the written examinations were held oh 14.12.2003. the results, however, were not declared as there was a restraint order passed on the administrative side of the high court on account of abolition of nine districts in the state of u.p. it appears from the letters of the district judge, etah dated 8.9.2004 sent to the registrar general with regard to the complaints on the fairness of the examinations, that the district judge was not interested in conducting the examination for the recruitment of class iii employees in the judgeship, as he was apprehensive of complaints against him and that he had twice refused to hold the examinations. the examinations, according to him, were, however, conducted on the orders of hon'ble the administrative judge. the district judge reported that on 27.7.2004 he had written to the high court seeking permission to cancel the examination for the reasons mentioned in his letter dated 27.7.2004. he was, however, granted permission by the then administrative judge on 14.8.204 to evaluate the answer books and states in paragraph 4 of the this letter that he was clearly directed that the results should not be declared until a clearance is given to him. on 21.8.2004 he was given direction by the administrative judge to maintain transparency in the evaluation of answer books and that the mark shells were required to be sent even to those persons, who had failed in the examinations. in para-9 he reported that the results were prepared by the examination committee and the same were declared on same day on 1.9.2004, and were sent to the high court on 2.9.2004 by special messenger and, were received by the administrative side on 3.9.2004. on the same day he was informed by the administrative judge on telephone to cancel the examination andconsequently the results and appointments were cancelled. in para-8 he states that on the same day on 3.9.2004 he received a fax message at 03.48 pm sent by the high court vide d.o. number c.v. 950/2004 dated 31.8.2004 by sri b.r. singh, registrar (confidential) which contained orders dated 28.8.2004 with directions that the results of examination be not declared until further orders. the district judge reports that these instructions were received by him after the results 'were declared on 1.9.2004. the district judge thereafter states that he received the same letter dated 31.8.2004 through special messenger on 8.9.2004 also by post. the district judge also admits in para-14 of his reply that he had met hon'ble judge on 14.8.2004 at his residence at allahabad but was not informed about any complaint against the examination.8. in his letter dated 20.9.2004 sri vikrama jeet singh, district judge, etah in his comments upon the complaints made against the examination which included the complaints of selection of large number of wards of the employees of the judgeship and exchange of illegal gratification for appointments, stated that the examinations were held on 13/14.12.2003 and that the complaints were made after about 11 months. in para-3 (b) of his reply, the district judge admitted that eight wards of civil courts staff found a place in the waiting list and that only 15 persons could be appointed from the list of 27 persons till 2005. with regard to some of the candidates, who were found below the age of 18 and were allowed to appear in the selections the district judge reports that the relevant age of the candidate was to be seen only at the time of their appointment and the applications of those persons were entertained who had completed 18 years of age. the admit cards were issued to only those candidates who had completed the maximum age.9. i have examined the complaints, the comments of the district judge and the copy of the roster annexed to the counter affidavit. the relationship of the eight selected persons with the employees of district, court is as follows;s.no. name (category)________relationship1. naresh chandra bharti (sc) son of retired reader.10. ajay pandey (general), son of shri ram sewak pandey, deputy nazir14. km. arshi noor (obc competed in general category) daughter of shri n. hasan, stenographer17. sanjay kumar singh (obc) son of shri nathu singh yadav, assistant reader.20. kr. mekhla mathur, daughter of shri d.v. mathur, stenographer23. dev raj singh (obc) son of shri bhagwan das pal, sessions' clerk25. sarda prasad singh, brother of clerk of legal service authority, and27. manoj rajpoot (obc) son of shri ram niwaj rajpoot (reader)10. from the reports submitted by the district judge and the admitted position that eight out of twenty seven selected candidates in the select list were directly related to the employees of the judgeship and the fact that the administrative judge had requested the district judge not to declare the as on 28.8.2004, i find that the district judge, etah acted in hot haste not only to declare the result in complete defiance of the order of the high court. he accepted the report of the committee on the same day on 1.9.2004, prepared the roster and issued the appointments letters on the same day and allowed all the petitioners to join on 2.09.2004. it is surprising to note as to how all this could be accomplished within 24 hours between 1.9.2004 and 2004.the circumstances in which the events have unfolded established that the district judge was fully aware of the orders passed by the administrative judge dated 28.8.2004, not to declare the results. the high court wanted to satisfy itself with the fairness and transparency in selections. there was no such urgency to complete the entire exercise of submission of results, acceptance, preparation of roster, issuance of appointment letters and joining to be made within 24 hours. this clearly shows that the district judge had acquired the knowledge of the fact that the administrative judge by his order dated 28.8.2004 had restained him to declare the results and that before the orders could be served upon him, for which the reasons of delay are not explained on record, the district judge made appointments and thereafter promptly cancelled them on 3.9.2004. i am, therefore, constrained to hold that the district judge not only violated the orders of this court with impunity, but also tried to justify himself by making insinuation and attributing motives to the high court on the questions of giving opportunity of hearing to the candidates. i find that the entire result and the appointments had to be cancelled on the ground of complaints of favouritism which are virtually established on record.the law with regard to applicability to the principles of natural, justice in such cases is fairly well settled. where the results of the examinations and the appointments are cancelled on account of large scale irregularities established on record and which are not attributable to any one or more candidates the principle of natural justice do not extend to give the opportunity of hearing to each individual.11. in state of m.p. v. shyama pardhi 1996 7 scc 118, the supreme court held that the principal of the natural justice were not attracted where the candidates did not hold qualifications for appointment and the appointments were in violation of statutory rules. in ashwani kumar v. state of bihar 1997 (2) scc 1, the review committee was required to scrutinise the data collected through the person hearing by the director-in-chief health services and on that basis the committee decided the question of legality and validity of their appointments. the supreme court held that basic principle of natural justice cannot be said to have been violated by the committee which ultimately took decision on the basis of personal hearing given to the employees concerned and after considering what they had to say regarding their appointments. in vinod kumar v. state of u.p. 1998 (1) esc 770, this court held that where selections were cancelled on grounds not attributable to any one or more candidates the principle of natural justice are not violated if no opportunity is given. in union of india v. tulsi ram patel (1985) 3 scc 379, the supreme court held in para 97 as follows:'97. though the two rules of natural justice, namely, nemo judex in causa sua and audi alleram partem, have now a definite meaning and connotation in law and their content and implications and well understood and firmly established, they are nonetheless not statutory rules. each of these rules yields to and changes with the exigencies of different situations. they do not apply in the same manner to situations which are not alike. these rules are not cast in a rigid mould nor can they be put in a legal straitjacket. they are not immutable but flexible. these rules can be adapted and modified by statutes and statutory rules and also by the constitution of the tribunal which has to decide a particular matter and the rules by which such tribunal is governed.'12. in biswa ranjan shahoo and ors. v. sushanta kr. dindu 1996 5 scc 365 the supreme court held that where the court finds enormity of mal-practices in the selection process the notice to each individual is not required to be given. the supreme court held that in such cases nothing would be become fruitful by issuance of notice. in this case fake selection process was adopted and it was found that tabulation seats were fabricated. such fabrication obviously would not have been known and no one would come forward to bear the brunt. the tribunal as such was not right in directing notices to be issued to the persons who were said to be selected and appointed. as the procedure itself was in flagrant breach of the rules, it offended article 14 and 16 of the constitution of india. in the present case i find that the report was accepted, roster applied, results were declared and appointments were given and persons were allowed to join all within 24 hours to avoid the orders of the high court, issued to hold the declaration of results, to ensure fairness and transparency of the proceeding. the applicants were uneasy for the delay in declaration of the result for about nine months. from the select list i have found that eight out of twenty seven candidates were relatives and wards of the employees of the judgeship which is not a coincidence, and that the district judge had himself desired not to declare the results almost one month before the result were actually declared. the object and purpose of the high court was to be fair to all the candidates. the anxiety of the administrative judge to issue the marks sheet to even those who had failed, fully demonstrated his desire to be absolutely fair in selections. the district judge, however, proceeded to frustrate this object and completed the entire proceeding in a hot haste, which was not warranted from the circumstances at all.13. i find that the appointment letters were issued to all the petitioners on the same date when the results were declared, and they joined on the next day on 2.9.2004. on the very next day of their joining the appointments have been cancelled, and thus they have worked only for one day.14. in the special facts and circumstances, the writ petition, against the orders dated 3.9.2004 passed by district judge, etah cancelling the results of the examination of class iii employees of the judgeship, and consequently the appointment letters, is dismissed with observations that the respondents will cause a detailed enquiry into the selections. the high court under article 235 of the constitution of india has been entrusted with the duties of general superintendence of the working of the subordinate courts. this includes not only judicial officers but also the employees of the subordinate courts and to ensure that the selections of the employees are held without any arbitrariness and favouritism. the registrar general will constitute a committee to examine the entire selection process, and to submit a report to the administrative judge. there shall be order as to costs.