JUDGMENT M. Katju and S.N. Srivastava, JJ.
1. Heard Sri Ranjeet Saxena, learned counsel for the appellants and Sri Siddharth Pandey, learned counsel for the respondent.
2. It appears that an examination was held for 190 posts of office assistants grade III in the service of the U. P. Power Corporation Ltd. Some serious complaints were received regarding this selection held by the Electricity Service Commission, and particularly against its ex-President Sri N. R. Sonkar, against whom an enquiry has been ordered for playing fraud. These complaints inter alia alleged that persons who have been selected did not have the minimum requirement of work knowledge. There were irregularities in the examination for the Computer Operators and Typists. At Varanasi the General Manager (Distribution), U. P. Power Corporation Ltd., Varanasi asked the typists to type but they could not type and the Computer operators could not operate the Computers. It is alleged that the persons who were selected were not eligible nor competent to hold the posts but they were still selected for extraneous considerations.
3. The Chairman-cum-Managing Director of the U.P. P.C.L. by his order dated 19.2.2004 has constituted an enquiry committee to enquire into the alleged irregularities. True copy of this order is Annexure-5 to the affidavit filed in support of the stay application in this appeal. The enquiry is still going on and is shortly going to be completed.
4. The learned single Judge following the judgment in Writ Petition No. 51448 of 2003, Chandra Shekhar and Ors. v. State of U. P. and Ors., decided on March 23, 2004, allowed the writ petition and hence this special appeal.
5. We have been shown a judgment of a Division Bench of this Court in U. P. Power Corporation Ltd. v. Nagendra Kumar Gour, Special Appeal No. 501 of 2004, decided on May 4, 2004. By that judgment the Division Bench has dismissed the special appeal against the judgment of the learned single Judge and has directed that the appointments be given but subject to the inquiry.
6. We are of the opinion that since there were serious complaints regarding the selection in question, the inquiry on these complaints should first have been directed to be completed, and it is only if the allegations in the complaints were found baseless that appointment orders should have been directed to be issued. To direct that first appointment orders should be given and only thereafter the enquiry should be completed is really putting the cart before the horse.
7. The Division Bench has observed that the learned single Judge was of the view that the U.P. P.C.L. did not take the case before him in the counter-affidavit that an enquiry regarding the selection was pending. We have perused the counter-affidavit filed before the learned single Judge. In para 11 of the same it has been specifically pleaded that an enquiry is going on. Hence, the observation of the learned single Judge is not correct.
8. We are, therefore, in respectful disagreement with the judgment of the aforesaid Division Bench decision in Special Appeal No. 501 of 2004 and the Judgments of the learned single Judge, and we are of the opinion that no order for appointments should have been passed until the inquiry on the complaints had first been completed. It is well settled that fraud vitiates all proceedings vide Chief Engineer and Ors. v. Pancham Ram and Ors., 2004 (1) AWC 81 ; Virendra Kumar Gupta v. State of U. P. and Ors., 2004 (1) AWC 6 ; Ram Chandra Singh v. Savitri Devi, 2004 ALR 400 and Dr. R.P. Singh v. Director of Higher Education, 2003 (52) ALR 185, etc. Hence, if after enquiry, it is found that the allegations in the complaints are correct, the entire selection gets vitiated.
9. Moreover, it is well settled that mere selection does not give a right to get appointment, vide S. Renuka v. State of U. P., (2002) 5 SCC 195 ; State of A. P. v. D. Dastagiri, 2003 (2) UPLBEC 1697. Mere inclusion of the name of a candidate in the select list does not confer any right of appointment vide Shanker Sen Das v. Union of India and Ors., AIR 1991 SC 1612 ; Asha Kaul v. State of Jammu and Kashmir. (1993) 2 SCC 573 ; Union of India and other v. S.S. Uppai, AIR 1996 SC 2340 ; Hanuman Prasad v. Union of India and Ors., (1996) 10 SCC 742 ; Bihar Public Service Commission v. State of Bihar, AIR 1977 SC 309 and Vice Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra and Ors., (1997) 10 SCC 264.
10. As there is no enforceable right to appointment, mandamus cannot be issued to the U.P.P.C.L. to appoint the writ petitioners vide Punjab S.E.B. v. Seema, 1999 SCC (L & S) 629 and Ludhiana Central Co-operative Bank Ltd. v. Amrik Singh, 2003 (5) AWC 3664 (SC) : 2003 (98) FLR 1186, etc. It appears that the attention of the Division Bench which decided Special Appeal No. 501 of 2004 was not invited to the aforesaid decisions of the Supreme Court.
11. In view of the above, we are of the opinion that the matter requires to be considered by a larger Bench of this Court.
12. Let the papers of this case be placed before Hon'ble the Chief Justice for constituting a larger Bench to consider the correctness of the Division Bench decision in Special Appeal No. 501 of 2004 and the judgment of the learned single Judge in Writ Petition No. 51448 of 2003, Chandra Shekhar and Ors. v. State of U. P. and Ors.
13. 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.
14. The enquiry regarding the selection shall be completed as expeditiously as possible.