Hon'ble Manoj Misra,J.
(Delivered by Hon'ble Manoj Misra, J.)
1. The brief facts giving rise to the present petition are that a decision was taken by the Government of Uttar Pradesh to make appointments on contract basis for the year 2010-11 of Ayush doctors under National Rural Health Mission Scheme propounded by the Govt. of India. As per the decision, the Director General (Family Welfare Department) was required to publish advertisement by 23.06.2010 thereby inviting eligible candidates to apply for appointment. The candidates were required to submit application in the office of the concerned District Project Officer (Family Welfare) by 15.07.2010. Dates 26th and 27th of July 2010 were fixed for interviews. All these appointments were to be made district wise through District Health Committee under the control of the District Project Officer (Family Welfare). The posts of Ayush doctors were notified district-wise. Instant petition relates to selection of Ayush doctors for the district of Budaun.
2. In the district of Budaun two posts of lady doctors, and twenty five posts of Male Ayush doctors, were notified. As a result of the aforesaid decision of the Govt., the Director General (Family Welfare) U.P., Lucknow vide an advertisement dated 23.6.2010 invited applications from eligible candidates for contract appointments on the post of Ayush Doctors for the year 2010-2011. The petitioner being an eligible candidate applied for appointment on the post of Male Ayush doctor in the district of Budaun.
3. On 26.07.2010 interview was held by the Selection Committee. Consequently, a select list was declared wherein the name of the petitioner figured amongst the selected candidates.
4. However, before the selection process could materialise into appointments, on the oral telephonic instructions of the Director General (Family Welfare), given on 16/17th August, 2010, the files in the office of the District Project Officer, Budaun, pertaining to selection, were examined by the Additional Director, (Medical Health and Family Welfare) Bareilly Division, Bareilly, who vide his order dated 18.8.2010 rescinded the entire selection and got the papers sealed in the presence of the Chief Medical Superintendent and Acting Chief Medical Officer, Budaun. A letter disclosing the details of the action taken by him was sent to the Director General (Family Welfare), U.P. Lucknow.
5. Against the order dated 18.08.2010 of the Additional Director (Medical, Health and Family Welfare) Bareilly Division, Bareilly, the petitioner filed a Writ Petition No. 54262 of 2010, which was disposed of by an order dated 06.09.2010 thereby directing that an appropriate decision be taken in accordance with law within shortest possible time preferably within a period of six weeks' from the date of receipt of that order.
6. When no action was taken within the prescribed period, a Contempt Application (Civil) No. 526 of 2011 was filed by the petitioner. In this contempt petition, the Court, by its order dated 29.01.2011, granted one more opportunity to the opposite party, namely, Dr. D.C. Jain, the Additional Director, (Medical Health and Family Welfare) to comply with the order passed by the Writ Court.
7. In the aforesaid backgound, the Joint Secretary, Government of U.P, on the basis of the reports received by him from Additional Director (Medical Health and Family Welfare Services) Bareilly Division, Bareilly and the Director General (Family Welfare) U.P., Lucknow, passed an order dated 9.3.2011 thereby rescinding the entire selection process undertaken on 26/27.07.2010 and directing for fresh selection to the posts of Ayush doctors in the district of Badaun. It is this order dated 09th March, 2011 that has been impugned in the present petition.
8. The petitioner has challenged the order dated 9.3.2011 on the ground that neither any proper enquiry was conducted nor there was any cogent material justifying cancellation of the entire selection result, therefore, the order impugned is arbitrary and illegal. It has also been claimed that the order impugned was without jurisdiction, as it was passed by the Joint Secretary, who was not actively involved in the selection process.
9. Before adverting to the stand taken by the State-respondents it would be necessary to note that neither in the Government Notification dated 22.06.2010 nor in the advertisement that was published on 23.06.2010 any criteria was laid for award of marks or points for the purpose of preparation of merit list. The Government Notification dated 22.06.2010, as well as the advertisement, only provided that all appointments shall be made district wise through District Health Committee under the control of the District Project Officer, Family Welfare. Perplexed by the lack of disclosure of any criteria for selection of a suitable candidate, this Court by its order dated 22.09.2011 directed the State-respondents to file a detailed counter affidavit disclosing the criteria adopted for awarding the marks. The court further directed the state respondents to bring on record the enquiry report and other documents justifying its decision to annul the selection result. In addition to that, the court directed the State-respondents to inform the Court as to what action was taken against the members of the interview Board.
10. The State in compliance of the direction given by this Court filed a counter affidavit through Dr. R.R. Tyagi, Additional Director (Medical Health and Family Welfare), Bareilly Division, Bareilly. In paragraph 3 of the counter affidavit, it was mentioned as under:-
" That before giving parawise reply, it is most respectfully submitted that this Hon'ble Court vide its order dated 22.09.2010 has directed the Standing Counsel to file a counter affidavit stating therein as to what was the criteria for allotting marks. In this respect, it is most respectfully submitted that as per records available with the department, there is no written criteria for allotment of marks. However, from the perusal of the chart available with the department, it appears that 25 marks was allotted for the interview, 5 marks was to be allotted for experience (1 mark for each year)."
11. In paragraph 5 of the counter affidavit it has been stated that the selection process of Ayush doctors of district Budaun was earlier cancelled by the Additional Director (Medical, Health and Family Welfare), Bareilly Division, Bareilly vide his order dated 18.08.2010 and that he, after conducting enquiry, had submitted enquiry report vide his letter dated 18.01.2011 and had also sent a letter dated 23.12.2010 to the Principal Secretary, Family Welfare, Government of U.P., Lucknow. In addition to that, the Director General, Family Welfare, Government of U.P., Lucknow had also sent a letter dated 06.01.2011 to the Principal Secretary, Family Welfare, Government of U.P., Lucknow. Copies of these letters have been placed on record as Annexure-CA-1, Annexure-CA-2 and Annexure-CA-3 respectively.
12. We have gone through the letters dated 18.01.2011 and 23.12.2010 enclosed as Annexure-CA-1 and Annexure-CA-2 respectively to the counter affidavit. From a perusal of those two letters it appears that out of 197 general candidates that had applied for the post, only 130 had appeared for interview. Out of those 130 candidates who appeared in the interview, 110 candidates received identical marks from the PMHS Officers/Members of the Interviewing Board even though the member nominated by the district officer awarded different marks to those candidates. The remaining 20 candidates, amongst whom 12 candidates were declared successful, received different marks from the PMHS Officers/ members of the Interviewing Board. Since a very large number of candidates had received common marks from few members of the interview panel, and only those receiving different marks were ultimately selected, it was concluded that the interview process was stage managed and not impartial.
13. In paragraph 17 of the counter affidavit it has been stated that considering the conduct of the District Project Officer (Family Welfare), Budaun in the selection process he was placed under suspension by an order dated 21st August, 2010. In this paragraph it has also been stated that the selection process for Ayush doctors on contract basis was for the financial year 2010-11, and since that financial year was over and that in the Project Implementation Plan of the financial year 2011-12 for U.P there was no provision for Ayush doctors, therefore, there was no justification to provide appointment at this stage.
14. We have heard learned counsel for the petitioner and the Standing Counsel for the State-respondents at considerable length and have perused the record.
15. The learned counsel for the petitioner has assailed the order of cancellation of selection on the ground that it has been passed only on suspicion without there being any cogent material to justify cancellation of the entire selection result. He submits that there was no fact finding enquiry to pin-point the guilt and the irregularity in the selection process. He further submits that there is also no material to show that any of the candidates was in a position to influence the members of the Board who shortlisted them. To buttress his submissions he has placed reliance on the following decisions:-
"(A) 2009 (3) AWC 233 (Ram Prakash Singh and others v. State of U.P and others);
(B) 2009 (1) AWC 391 (Pawan Kumar Singh and others v. State of U.P and others); and (C) 2006 (11) SCC 356 (Indrajeet Singh Kahlon and others v. State of Punjab and others)."
16. We have gone through the judgments cited by the counsel for the petitioner. With great respect the judgments in the case of Pawan Kumar Singh (supra) and Indrajeet Singh Kahlon (supra) are not at all applicable to the facts of the present case inasmuch as in those cases the orders were passed after the candidates were duly appointed in service after undergoing detailed selection process prescribed by law. So far as the case of Ram Prakash Singh (supra) is concerned, there the selection process was held in pursuance to the procedure prescribed by the U.P. Procedure for Group C Posts (Outside the Purview of the U.P. Public Service Commission) Rules, 2002. In that case the candidates were short listed on the basis of quality point marks before being invited for interviews. After the interviews were over, the marks given to the candidates for their achievements and sports were verified to the criteria for award of marks provided in the Govt. order dated 20.7.2002. Whereas in the present case there was no written test. It was selection only by interview. The State in its reply has disclosed that the selection was to be made on the basis of marks secured by a candidate out of a total of 30 marks. It is noteworthy that out of 30 marks, 25 marks were allotted for interview whereas only 5 marks were to be awarded depending on the experience of the candidate i.e. 1 mark for each year of experience. Considering the fact that the marks allotted for interview were extremely high in proportion to the total marks that could be awarded, arbitrary marking in the interview was likely to seriously prejudice the entire selection result. In that background, once it was discovered that out of a total of 130 candidates, 110 candidates were awarded identical marks by few members of the Interviewing Panel, and the 12 selected candidates were from those remaining 20 candidates who got different marks from them, there was enough reason for the authorities to believe that the award of marks in the interview was a stage managed exercise and not impartial.
17. We are not required to test the validity of the criteria for selection adopted by the recruitment body, as the same is not subject matter of challenge in this petition. However, considering the fact that the entire selection was dependent on interview, and out of a total of 130 candidates, 110 candidates secured identical marks from few members of the Interviewing Panel, whereas they awarded different marks to only 20 candidates from whom 12 were shortlisted for selection, the decision of the Government in calling for a fresh selection to the post cannot be said to be arbitrary or illegal.
18. As regards the jurisdiction of the Joint Secretary, Govt. of U.P. to pass order of cancellation, suffice it to say that the ultimate employer is the Govt. Accordingly, the Govt. always has the jurisdiction to take suitable action when ever the situation so demands.
19. Considering the totality of facts and circumstances, as also the law that mere selection does not provide any indefeasible right to the candidate, we are of the view that this case is not a fit case for grant of any relief to the petitioner under Article 226 of the Constitution of India. In the result, the petition fails and is dismissed.
20. There shall be no order as to costs.
I agree.