JUDGMENT A.K.Yog, J.
1. Present Special Appeal, by seven persons (namely,- Anil Kumar s/o Girsh Chandra, Adarsh Kumar s/o Raksha Ram Verma, Paras Nath s/o Chhedi Ram, Shiv Das s/o Ram Pyare, Dhirendra Kumar s/o Hardwar Lal, Ram Taul s/o Lahauri and Mateshwari Nandan Sinha s/o Balram Krishna Sinha ) under Chapter VIII Rule 5, Rules of Court arises from impugned judgment and order dated 1-10-2004 dismissing Civil Misc. Writ Petition No. 51020 of 1999 (Ganeshji Kushwaha and 9 Ors. v. State of U.P. and Ors.), which was filed to challenge order dated 2-11-1999 (Annexure-6 to W.P.) passed by State Government canceling entire selection proceedings and select list dated 9-3-1999 for making appointment on the post of Untrained Veterinary Pharmacist in Basti Division and also the consequential order dated 26-11-1999(Annexure-7 to W.P.) issued by the Deputy Director, Animal Husbandry, Basti Division, Basti rejecting representation (against above action) in pursuance to a direction issued by this Court in earlier Writ Petition No. 32719 of 1999-Ganeshji Kushwaha v. State of U.P.
2. Salient facts of the case are noted thus:
An advertisement was issued on 10-8-1988 for appointment over 17 posts of Untrained Veterinary Pharmacist in Basti Division; 4 four posts were shown as reserved for S.C./S.T. candidates while 6 posts reserved for OBC candidates (in the impugned judgment mentioned 5 post); copy filed as Annexure-1 to the affidavit filed in support of Stay Application in the present Special Appeal (called 'the affidavit'). Appellants, apart from other candidates, applied in pursuance to the said advertisement. District Magistrate, on being requested in writing, vide order dated 10-2-1999 (Annexure-4 to Rejoinder Affidavit in Writ Petition) appointed Dr. T.C. Sharma as his nominee as contemplated under Rule 6 of U.P. Procedure for Direct Recruitment for Group 'C' Posts (outside the purview of the U.P. Public Service Commission) Rules, 1998; copy filed as Annexure-2 to the Affidavit.
3. The said Selection Committee apart from Chairman/Appointing ' Authority comprised of the following-
1. Dr. R.R. Verma, Veterinary Medical Officer, Basti Sadar (OBC nomination by Chairman)..... .................... Member
2. Dr. Anwarul Haq, Veterinary Medical Officer.......................M ember Expert
3. Dr. R.N. Prasad, Veterinary Medical Officer, Babhnan Representative of SC/ST....................................Member
4. Dr. T.C. Sharma D.M. Nominee .......................................Member
4. Aforesaid facts are borne out from perusal of Annexure-4 to the Rejoinder Affidavit sworn by Paras Nath-one of the selected candidate and filed in writ petition.
5. Written examination took place on 27-2-1999 and Interview on 9-9-1999. Select List was prepared and declared on the basis of respective merit of the candidates. Respondents, however, did not proceed further inasmuch as no appointment letters were issued on the basis of the said Select List.
6. It appears that some complaint was made by one Manoj Kumar who was not successful to U.P. State Backward Commission, U.P. Lucknow (called 'the Commission'). The Commission vide order dated 16-6-1999 referred the matter to the Government pointing out that reservation in favour of SC/ST and OBC was not done in accordance with Act No. 4 of 1994/G.Os issued thereunder. According to the Commission, 5 posts should have been earmarked for OBC if quota for SC/ST and OBC was rightly calculated and said Manoj Kumar was entitled for selection. Report of the Commission was communicated to the, Secretary, Animal 'Husbandry and Fisheries Department, U.P. Lucknow vide letter dated 22-7-1999. Aforesaid report dated 16-6-1999 and letter dated 22-7-1999 arc Annexures-RA2 and RA3 to the Rejoinder Affidavit (sworn by Paras Nath) filed in the writ petition.
7. The Government took notice and initiated enquiry, as is evident from the averments made (on behalf of the Respondents) in para 5, 7 and 10 of the counter affidavit sworn by Dr. Ravindra Nath which was filed in the writ ' petition wherein it is averred that on receipt of complaint, enquiry was made and on being satisfied, the Governor, vide G.O. dated 2-11-1999, was pleased to cancel entire selection proceedings. It may be noted, along with counter affidavit, enquiry report was not filed. Subsequently, a supplementary counter affidavit (sworn by Dr. P.D. Bansal) was filed in the writ petition.
8. Annexure SCA 1 to the said supplementary Counter Affidavit is letter dated 4/6-9-1999 written by Director, Animal Husbandry Department, U.P. Lucknow to Secretary, Animal Husbandry and Fisheries, U.P. Government pointing out for irregularities committed in the selection process in question viz. - (i) Reservation of 15% posts to be filled up by promotion under Recruitment Rules was not followed. (ii) Government orders prescribing reserve quota for SC/ST and OBC have been ignored by allocating lesser posts. (iii) Selection Committee not constituted as per Rules since there was no nominee of District Magistrate and lastly (iv) All the five members of the Selection Committee awarded 9 marks out of 10 in interview to the 17 selected candidates. The Director, on that basis, also recommended that the officers involved in the selection process should be suspended and departmental enquiry be initiated. With the said letter, enquiry report submitted by Joint Director (Administration), was also enclosed.
9. In the said enquiry report, the Enquiry Officer has mentioned the constitution of the Selection Committee comprising of the following persons:
(1) U.P. Singh, Deputy Director.........Chairman (2) Dr. V.P.Verma.................Member (3) Dr. R.N.Prasad.......................Member (4) Dr. Anwarul Haq......................Member (5) Dr. T.C. Sharma.........................Member
10. At the outset we note that complaint and enquiry, report, referred to above, indicate 'no irregularity' being committed in conducting, the written examination as such. The complaint refer to 'interview' or 'improper. allocation of quota'.
11. At this stage itself, we may point out that in the enquiry report it has been wrongly mentioned that there was no representative/nominee of the District Magistrate. Members, in the Selection Committee, as shown in the enquiry report (noted above) includes the name of Dr. T.C. Sharma, Veterinary Medical Officer, Basti.
12. Observation in Enquiry report, regarding absence of. Nominee of District Magistrate is thus against record. As noted earlier in the judgment, Dr. T.C. Sharma was nominated by District Magistrate, vide his order dated 10-2-1999.
13. As far as other objections (in the enquiry report) are concerned, we would like to point out here itself that alleged irregularities regarding improper calculation of quota with respect to SC/ST & OBC and 15% quota for promote under relevant Rules, 1998 is also misplaced as far as process of selection is concerned. It is, if at all, relevant to determine number of posts for different categories which has no concern with the holding of examination and Interview in question. No one looked into these aspects.
14. On the basis of the aforesaid report, orders dated 2-11-1999 and 26-11-1999 were passed. Feeling aggrieved, 10 persons approached this court by filing aforementioned Writ Petition No. 51020 of 1999. Parties exchanged pleadings by filing counter and rejoinder affidavits. Learned Single Judge after hearing the parties, primarily relying on the said enquiry report and on the premise that there was no material to show that Respondents had acted malafide, held that there was no indefeasible right in the selected candidates. The learned Singh Judge held thus, the petitioner had no matured legal right vesting in them on the basis of the said Select List Writ petition was, consequently dismissed vide impugned judgment! and order dated 10-10-2004.
15. With respect we arc not in agreement with the approach and the view taken by learned Simile Judge.
16. No candidate whose name appears in the Select List, has vested right enforceable in law but it is subject to certain conditions, namely cancellation of Select List or refusal to appoint should not be arbitrary and such action should not suffer from bias or malafide. However, the question is as to whether State or its Authority under Article 12, Constitution of India, can be permitted to forestall mid way a process of selection arbitrarily, malafide or on its whirrs completely ignoring harassment to all concerned including candidates, wastage of public time and money and making entire process a mockery for no good ground. Candidates, in particular join selection process , in sanguine nope that they shall spend time, money and energy in the process which is intended to be completed till its logical end.
17. Ratio decidendi, laid down in the impugned judgment of the learned Single Judge, are not in dispute. What is in dispute is on the facts of the present case, as borne out from record, can it be said that Respondents had acted in good faith. There can be no dispute that once selection process had started; the candidates had, though no statutorily enforceable right, but some kind of right under process of maturisation and thus entitled to ensure that the Authorities did not act arbitrarily and stop selection process. Once clock was set and put in motion, the State and its Authorities are under statutory obligation to complete the process under statutory rules and they cannot be fallowed to stop for no rhyme or reason or by acting whimsically or on a ground which is not borne out from record. Once clock was set in motion, it must be allowed to complete the round as otherwise it will lead to other several anomalies and arbitrary results.
18. It is to be seen whether on the basis of record before us, respondents are justified in passing the impugned order. The challenge in the impugned order, as already pointed out above, is enquiry report raising four objections. We will deal one by one.
19. As already noted above, objection regarding quota for SC/ST and OBC and quota for promotee is concerned, we are unable, in spite of our best efforts, to find out as to how the same will touch the veracity and impartiality of selection process. Quota is based on calculation and if there is any error or mistake therein, the same can be rectified. It will, however confer no power or justification in the authority to cancel entire selection process.
20. As far the constitution of Selection Committee is concerned, finding of Enquiry Officer is against record (as noted above). The District Magistrate had nominated his representative, Dr. T.C. Sharma in the Selection Committee. His name find place in the composition of the Selection Committee as given in the enquiry report itself.
21. Other objection is that all the selected seventeen candidates in interview were awarded 9 marks out of 10.
22. List of 17 candidates, as per their merit in the selection process in question, is Annexure-4 to the affidavit in Special Appeal. Candidate at Sl. No. 15 has secured seven marks only and not 9 marks in interview as alleged. It is evident from perusal of tabulated marksheet/Annexure-SRA-1 to the Supplementary Rejoinder Affidavit sworn by Paras Nath in the writ petition.
22. Aforesaid facts go to show that apparently and prima facie Enquiry Officer is not correct and his report suffers from error apparent on the face of record.
23. Otherwise also, we find that even if candidates had secured 9 marks, the tabulated sheet (on record) show that many of them had secured distinctly high marks in written examination as also in U.P. Board Examination putting them high in order. One cannot ignore the fact, that even if all candidates selected have secured 9 marks (out of 10 marks in interview), it may only give rise to 'suspicion' which cannot be substituted for ' a concluded finding' based on record. There is also no finding that, by securing such marks, result has been materially affected. Mere fact that these candidates had secured 9 marks out of 10, cannot be a sufficient ground to cancel entire selection process. We note sometime truth is stranger than fichers.
24. This view has already been taken by this Court as well as Apex Court in the matter of unfair means wherein court had held that similarity of answers cannot be a ground for cancellation of examination because that is only a matter of suspicion.
25. We may further note that in para-4 of the above referred Supplementary Rejoinder Affidavit (sworn by Paras Nath) following averments have been made:
"4. That in reply to para 7 of the counter affidavit it is stated that a perusal of the communication of the Director, Animal Husbandry dated 6-9-1999 would demonstrate that it recommends cancellation of the entire selection. The said communication also forwarded a chargesheet for action being taken against Dr. U.P. Singh the then Deputy Director of Animal Husbandry, Basti Division, Basti as also other members of the selection committee. It is, however, necessary to state that till date no departmental action has been taken either against Dr. U.P. Singh or against any other member of the selection committee. None of the members including Dr. U.P. Singh has been placed under suspension. It is further relevant to state that Dr. U.P. Singh has been granted two promotions subsequent to 6-9-1999 firstly to the post of Joint Director and thereafter to the post of additional Director on which post he is presently working. In so far as the enquiry report enclosed to the communication dated 6-9-1999 is concerned it is necessary to state that the said report is totally ex-parte to the petitioner without any notice or opportunity having been afforded to the petitioner. The various recital contained in the said report are recital not based upon any material. The various objections contained in the enquiry report are dealt with in the succeeding paragraphs."
26. There is no material before us to indicate that any action has been taken against Dr. U.P. Singh and other Officers involved in the said selection process, as recommended by Director in his above referred letter dated 4/6-9-1999.
27. This against cast serious doubt about bonafide of the Respondents.
28. In view of the above, Special Appeal is allowed. Judgment and order dated 1-10-2004 is set aside. Consequently, writ petition is also allowed and impugned orders dated 2-11-1999 and 26-11-1999 are hereby quashed. We issue writ of mandamus directing Respondents to proceed further in accordance with relevant Rules on the basis of Select List in question after re-allocating post as per relevant G.Os. in the matter of SC/ST, OBC and promotional quota, if there is any calculation mistake. We make it clear that all selected 17 candidates on merit shall be entitled to the benefit of this judgment, notwithstanding whether any of them has approached the court or not for the relief in question.
29. Special Appeal allowed, subject to the above direction.
30. No order as to costs.