Hon'ble Pankaj Bhatia,J.
We have heard Sri R.K. Ojha, learned Senior Advocate, assisted by Sri Ashish Mishra, learned counsel for the appellants in Special Appeal Defective No.625 of 2019, Sri Anoop Trivedi, learned Senior Advocate, assisted by Sri Virendra Kumar Tiwari, learned counsel for the appellants in Special Appeal Defective No.626 of 2019, Sri Manish Goel, learned Additional Advocate General, assisted by Sri A.K. Goel, learned Additional Chief Standing Counsel and Ms. Akanksha Sharma, learned Standing Counsel representing the State-respondents in both the Special Appeals, Sri S.K. Pandey, learned counsel representing respondent-U.P. Jal Nigam and its Officers in both the Special Appeals, Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the private respondents, Sri Seemant Singh, Sri P.K. Upadhyay and Sri Abhishek Kumar Saroj, learned counsels appearing for the intervenors.
Both the intra-court appeals, filed under Chapter-VIII Rule-5 of the Rules of the Court, have assailed the correctness of the order dated 21.05.2019, passed by the learned Single Judge in Writ-A No.12222 of 2017, Amrish Kumar Pandey Vs. State of U.P. and 8 others, whereby after noting certain facts, the learned Single Judge, has issued the directions as contained in the last part of the said order which is reproduced below:-
"Consequently the following directions are issued: -
The Chief Standing Counsel for the State of U.P. is directed to file an Affidavit of the officer heading the S.I.T. detailing the status of the investigation. The progress report shall divulge complete details of the material gathered, the conclusions drawn and the action taken to identify all persons found complicit in the commission of the irregularities. The SIT is also permitted to place the progress of the investigation in sealed cover if so desired.
The Managing Director of the Jal Nigam shall appear in person and produce before this Court a decision taken by the Jal Nigam with respect to the issues flagged above as well as the time frame within which the steps contemplated and decided are proposed to be completed. In case the Jal Nigam decides to annul the selection process, the Managing Director who shall appear on that date shall also apprise this Court of the time frame within which the services of all the tainted candidates shall be terminated and a fresh process of selection initiated. It is again left open to the Jal Nigam in the alternative to undertake the requisite exercise of segregation if feasible and place the relevant facts on record.
List this petition peremptorily on 4 July 2019."
The grievance of the appellants is that the basis for issuing the directions is based upon incorrect facts, as placed before the Court on account of certain mis-representation and as such not only the basis for issuing the directions may be wiped out but also the order impugned be set-aside and the learned Single Judge be directed to proceed with the hearing of the writ petition along with other connected matters on the basis of correct facts which may be placed by the learned counsel for the parties and the learned Single Judge may not be influenced by the facts as recorded in the impugned order.
The dispute relates to selection and appointment of Junior Engineers (Civil) 727 posts and Junior Engineers (Electrical and Mechanical) 126 posts in the U.P. Jal Nigam for which the selection commenced in October, 2016. As such, the total posts covered in the said selection were 853 posts.
On 28th October, 2016, an advertisement was issued inviting applications for the said 853 posts. On 6th and 7th December, 2016, on-line Computer Based Tests were held in five shifts and on 17th December, 2016, the results of the written examination were declared in which 3961 candidates for Junior Engineer (Civil) posts and 669 candidates for the Junior Engineer (Electrical and Mechanical) posts were declared successful and called for interview. The interview was held from 19th December, 2016 to 24th December, 2016. The final select list was prepared and final results were declared on 1st January, 2017. The appointment letters were issued to the successful candidates on 3rd January, 2017 pursuant to which, joining took place between 4th January, 2017 to 16th January, 2017. Thereafter, on 14th February, 2017, U.P. Jal Nigam uploaded the question paper along with the answer key on the website and invited objections to the same. The objections were filed but their disposal was not displayed nor any revised merit list issued.
Some of the unsuccessful candidates who had qualified the written examination but were finally declared unsuccessful, filed writ petitions on the ground that certain questions and their answers were not correct and therefore the answers given by them which were not as per the answer key uploaded may be treated to be correct and accordingly marks be awarded and final merit list may be revised and they be given appointments, as according to them, the marks scored by them would be more than the marks of the last selected candidates in different categories.
During the pendency of the writ petitions, cerain orders were passed. Initially vide order dated 24th March, 2017 passed in Writ Court, in Writ-A No.12222 of 2017, the Court recorded the main submission of the petitioners and granted time to the represented respondents to file counter-affidavit and further recorded that issuance of notice to private respondents would be considered after counter affidavits are filed by the represented respondents. The writ petitions remained pending and on 19.11.2018, the Writ Court passed a detailed order in which it was incorporated, on the statement given by the learned counsel for the U.P. Jal Nigam, that 479 deserving candidates were not called for interview and 656 candidates who were undeserving were called for interview and have been selected. Such fact is recorded in paragraph-8 of the order dated 19.11.2018, which is reproduced below:-
"8. The Counsel for Jal Nigam has pointed that at least 479 candidates have been found by the S.I.T. in the enquiry to be eligible for interview after re-evaluation of their answer sheets/response sheets in pursuance of corrected answer key. Whereas some 656 selected candidates who have already joined and are working shall be ousted at the stage of C.B.T. (Computer Based Test) itself and shall not be found eligible even for participation in interview"
The matter was further directed to be listed on 13th December, 2018.
In the subsequent order dated 07.01.2019, the Writ Court recorded certain facts with regard to the litigation relating to the selection and appointment of Assitant Engineers by the U.P. Jal Nigam which took place during the same period as that of the Junior Engineers. The litigation relating to Assistant Engineers was carried up to the Supreme Court.
The impugned order came to be passed on 21.05.2019. This order takes into account, the order passed on 19th November, 2018 which has already been referred to above. The learned Single Judge noticing the fact (as recorded in earlier order dated 19.11.2018) recorded that out of 853 successful candidates who had been appointed and had joined, 656 selected candidates were undeserving, was of the view that either the U.P. Jal Nigam may proceed to cancel the entire selection or to undertake requisite exercise of segregation of the tainted and untainted candidates if it was feasible. Learned Single Judge also noticed the stand of the U.P. Jal Nigam that they had already constitued a Special Investigation Team (S.I.T.), which was still seized of the matter and had not concluded the investigation by submitting complete report and that certain material seized by the Special Investigation Team (S.I.T.) from the Office of the Examining Agency i.e. the APTECH Ltd. had sent the material to the Forensic Science Laboratory (FSL) for analysis which was also awaited. Learned Single Judge also recorded that if the entire selection process was to be annulled then that would necessarily entail the termination and discontinuance of the 656 candidates who had been wrongly called for the interview.
The Special Appeals have been filed by some of the selected candidates along with the applications seeking leave to file appeal as they were not parties before the Writ Court, as also an application praying for condonation of delay and also an application seeking exemption from filing certified copy of the order. Insofar as, these applications are concerned, we may record that certified copies of the orders have been subsequently filed before us, as such, the Exemption Application does not require any consideration and insofar as Leave to Appeal is concerned, the appellants who would be materially affected by the outcome in the writ petitions, are granted liberty and the application stands allowed. Insofar as delay condonation application is concerned, the delay is only of a few days and the explanation tendered for the same having been found satisfactory, the delay is also condoned and accordingly the Delay Condonation Application is allowed.
The main thrust of the arguments before us raised by the learned counsels for the appellants is that the fact recorded in the order dated 19th November, 2018 that 656 undeserving candidates who could not have been called for interview but were wrongly called have been selected is not correct. According to them, the case of the Jal Nigam was that as per the report of APTECH (the selection agency) after considering the objections to the answer key uploaded, 479 candidates would be benefitted and ought to have been called for interview and at the same time, 656 candidates would fall below the last cut-off marks and had been wrongly called for interview. It is also the case of the appellants that out of these 656 candidates who were not deserving to be called for interview but had been called for interview, only two had been selected and the remaining 654 have not been selected.
Contrary to the above, the learned Single Judge right from the order dated 19th November, 2018 proceeded on the assumption that 656 undeserving candidates had been selected and appointed and in case this fact was correctly placed before the learned Single Judge, the Court may not have proceeded to pass the order and continuance of such facts in the orders passed by the learned Single Judge may not have eventually influenced the learned Single Judge while taking a decision in the matter as was done by the impugned order, therefore, it has become necessary that this Court may interfere with the order passed by the learned Single Judge and correct the said mistake.
On the other hand, learned counsels for the respondents when confronted with the specific query as to whether 656 undeserving candidates who had been called for the interview have been selected and given appointment or only two out of 656 undeserving candidates, had been selected and given appointments, the answer is that only two candidates out of 656 undeserving candidates have been selected and not 656 as recorded in the orders dated 19th November, 2018 as also the order impugned in this appeal i.e. 21.05.2019. This is also admitted in the counter affidavit filed by the respondent-U.P. Jal Nigam and the names of the two undeserving candidates selected is also mentioned therein.
In view of the above, we clarify that out of 656 undeserving candidates called for interview only two have been selected viz. Ajay Kumar Srivastava, Junior Engineer (Civil) and Mohd. Tahseen Khan, Junior Engineer (Electrical and Mechanical). Thus, any influence on the mind of the learned Single Judge which may have weighed while passing the aforesaid orders will not influence the Writ Court now as the correct facts have been incorporated and recorded hereinabove.
Insofar as the submission of learned counsels for the appellants regarding setting-aside the directions is concerned, we are of the considered view that the direction is only to take a decision and not to take a 'particular decision'. The Jal Nigam being the appointing authority is competent and it is well within its domain to find out and assess whether the examinations had been held fairly and in a transparent manner and subject to the report of the Special Investigation Team (S.I.T.), the analysis of the Forensic Lab or any other material that may be placed before the Jal Nigam to take an appropriate decision. It goes without saying that such decision is to be taken in accordance with law. The Jal Nigam has also been given liberty by the learned Single Judge to undertake the requisite exercise of segregation, if feasible, of the tainted and untainted candidates, therefore, the entire matter is now with the Jal Nigam and the Jal Nigam is to take a conscious and a reasonable decision. The Jal Nigam is free to proceed to take any decision as it may deem fit as per the directions given by the learned Single. The decision so taken will be on the basis of the material that may be collected and placed before the Jal Nigam without being influenced by the observations of the Writ Court regarding its conscience being shocked as 656 undeserving candidates having been selected against total selection of 853 posts, which is not correct. Thus, we are not interfering with the directions issued by the learned Single Judge.
We had summoned the record of the 12 pending writ petitions. The record of all the writ petitions be returned to the Writ Court to be placed before the Writ Court on the date fixed.
We have been informed that the matter is fixed for 5th August, 2019 before the Writ Court. Request has been made by the learned counsels for all the parties i.e. the appellants as well as respondents and the intervenors that the Writ Court may be requested to decide the matter on merits within a fixed time frame.
We are afraid that we can fix a time frame for the Writ Court to decide the matter, however, we can only make a request to the learned Single Judge to make an endeavour to decide the writ petitions, at the earliest, considering that some undeserving candidates have been given appointments and are reaping the fruits whereas some deserving candidates are fighting for their rights to get appointments and are without employment for the last two and a half years.
With the aforesaid observations, the Special Appeal stands disposed of.
Order Date :- 31.7.2019 Ashutosh [Pankaj Bhatia, J.] [Vikram Nath, J.]