Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. Heard Mr. Sharad Kumar Srivastava, learned counsel for petitioner and learned counsel for opposite parties.
2. The petitioner has instituted this writ petition under Article 226 of the Constitution of India assailing the impugned order dated 17.1.2006 passed by respondent no. 1 on the recommendation of respondent no. 2, the punishment order of deduction of 25% amount from his pension has been passed against him.
3. It is pleaded by the petitioner that punishment imposed against him is most illegal, arbitrary, unreasonable and uncalled for. The petitioner joined as Member of U.P. Judicial Service on 9.11.1970 having been selected by U.P. Public Service Commission. He had discharged his duties with due diligence, sense of duty and to the satisfaction of his higher authorities. It is further submitted that service career of the petitioner has all along been unblemished. He was promoted on higher grades and position, whenever the same became due to him.
4. It is further pleaded that the petitioner was transferred in the month of August, 1988 as District Judge from district Etah to Ghazipur. While he was posted as District Judge Ghazipur, Hon'ble High Court directed to initiate recruitment proceedings for appointment of Class-III employees in Ghazipur Judgeship vide order dated 15.01.1999. He constituted a selection committee vide order dated 25.4.1999 for conducting the selection process after determination of the vacancies. The selection committee submitted a report on 01.05.1999 determining 21 vacancies which included 12 vacancies for Clerks, 2 for Personal Assistants and 7 vacancies for Stenographers.
5. It is mentioned that after determination of the vacancies by the selection committee, an advertisement inviting applications from eligible candidates for the post in question was published. The vacancies were duly and widely notified in the newspapers and through other means. The requisition for the vacancies was also sent to the Employment Exchange of the district. The date of examination as part of the recruitment process was fixed on 04.07.1999. This Court was also informed vide letter dated 05.05.1999 about the constitution of the aforesaid selection committee and about availability of vacancies, as also the date on which the examination was scheduled. The petitioner has also mentioned that selection committee comprised of Sri Ram Singh, Additional District Judge/Chairman and three other members, namely, Sri Shamshad Ahmad, Civil Judge (Sr. Div.), Sri Mahendra Singh, Civil Judge (Jr. Div.) and Sri Raghvendra Singh, Ist Additional Civil Judge (Jr. Div.).
6. It is further pleaded by the petitioner that he being appointing authority vide order dated 19.05.1999 directed the Chairman of selection committee to reserve the vacancies for Class IV employees in their promotee quota of Class-III posts and to conduct the examination for promotion of Class-IV employees as per rules. The examination for appointment to Class-III posts was held on 04.07.1999 under supervision of the selection committee and no complaint was received from any corner.
7. It is further submitted by the petitioner that the merit of the candidates, who appeared in the examination, was prepared and after evaluation of the answer scripts and coding and de-coding of the marks obtained by the candidates, the select list was prepared by the selection committee, which was thereafter approved by the petitioner. In the capacity of District Judge being the appointing authority on the recommendations made by the selection committee, the select list was immediately communicated to this Court on 11.08.1999 i.e. on the date itself, when merit list/select list was prepared and submitted by the selection committee. On the basis of select list, a roster was prepared and also appointment orders were issued by the petitioner in the capacity of appointing authority as District Judge. Thereafter the petitioner was transferred to Aligarh and he handed over charge of the office of District Judge, Ghazipur on 16.08.1999. He was succeeded by one Sri Vikram Jeet Singh.
8. The petitioner has further mentioned that Sri Vikram Jeet Singh amended the roster on 20.08.1999 and an examination was held for promotion from Class-IV to Class-III posts. Thereafter a combined roster was prepared on 04.11.1999 by Sri Vikram Jeet Singh the then District Judge. He sent letter to the Inspecting Judge on 11.11.1999 pointing out some alleged irregularities regarding conduct of examination for appointment on Class-III posts without inquiring anything either on his own or from the petitioner. There was no occasion for the successor of the petitioner Sri Vikrram Jeet Singh to have re-opened the selection, as selection process was over and select list was prepared and finalized. Its information was also sent to this Court and there was no direction on administrative side or from any other court of law for re-opening of the selection process.
9. It is further contended that the Inspecting Judge made observations on the conduct of said examination and an explanation was called for by this Court from the petitioner vide letter dated 13.01.2000. Sri Vikram Jeet Singh made some request for cancellation of the said examination and accordingly it was cancelled with certain observations. It has been mentioned that the petitioner came to know that Hon'ble Apex Court has allowed S.L.P. vide order dated 04.08.2006 (Virendra Kumar and others Vs. State of U.P. and others) filed by the selected candidates and the order of cancelling the examination has been set aside. The petitioner has further mentioned that the Inspecting Judge observed that inclusion of certain candidates of Yadav castes creates suspicion and list of selected candidates smacks of manipulation and there was no immediate need for additional staff.
10. The petitioner submitted his reply dated 13.03.2000 vide Annexure No. 3. It was pointed out that the observations made by the Inspecting Judge were based on the report dated 11.11.1999 of Sri Vikram Jeet Singh, successor of the petitioner, who did not have any jurisdiction to sit in judgment over the selection made by the petitioner. He also stated that no complaint was received from any corner till the declaration of the result and further that apprehensions are being raised on the examination after lapse of considerable time. It was also mentioned in the explanation by him that selection were made by the duly constituted selection committee as per rules. The selection of few Yadav candidates was merely incidental and beyond his control. The petitioner neither belong to Yadav caste nor he has any relation with any selected candidate. The petitioner has also stated that there was no basis of causing any aspersion in the selection of Yadav candidates. He categorically denied any manipulation in preparation of select list. It was also pointed out by the petitioner that for appointment of Stenographer, there does not exist any separate rules and the procedure for their appointment is same as that of Class-III employees. He prayed for expunging the observations made by the Inspecting Judge.
11. The petitioner has pleaded that after submission of explanation dated 13.03.2000, this Court was satisfied and no action was communicated to the petitioner and then Hon'ble the Chief Judge was pleased to pass order dated 07.04.2000 to the effect that observations made by the Inspecting Judge in regard to conduct of examination at District Ghazipur need not be entered in the character roll of the petitioner nor it be placed in his personal file. Therefore, the matter relating to conduct of examination for recruitment to Class-III posts in district Ghazipur was closed and the petitioner stood exonerated of the charges regarding conduct of examination. Sri Vikram Jeet Singh made frivolous complaint against the petitioner. Sri Padam Singh, Advocate Etah in regard to some judicial orders passed by the petitioner, in allowing three bail applications and rejecting two bail applications, the matter was enquired into by two Inspecting Judges, namely, Hon'ble Mr. Justice T.P. Garg and Hon'ble Mr. Justice A.S. Gill and both the Hon'ble Judges found no substance in the complaint made by Sri Padam Singh and the proceedings were dropped.
It is further pleaded that Hon'ble Mr. Justice Palok Basu, who was the then Inspecting Judge of District Ghazipur forwarded a note to reconstitute vigilance enquiry on the complaint of Sri Padam Singh, which was considered by the administrative committee of this Court on the complaint relating to petitioner's judicial functioning as District Judge Etah. The Hon'ble Committee in its meeting held on 14.07.2000 considered the said note and resolved that no action is required to be taken against the petitioner. The petitioner made a request in the grounds of this writ petition that record of minutes of meeting dated 14.07.2000 be summoned. The said matter regarding vigilance enquiry no. 18 of 1988 relating to Etah Judgeship for the year 1997-98 and 1998-99 and the same was dropped by the then Hon'ble Chief Justice vide order dated 31.03.2000. There was no occasion for the then Inspecting Judge to have put a note for its reconsideration, when the administrative committee as stated above, resolved that no action is required to be taken in the matter.
12. It is further submitted by the petitioner that Hon'ble Mr. Justice Palok Basu, the Inspecting Judge again forwarded another note regarding explanation submitted by the petitioner. On the basis of this note, the administrative committee of this Court in its meeting held on 27.04.2001 resolved to recall the decision of the Administrative Committee dated 14.07.2000 and to initiate departmental inquiry against the petitioner. It was further resolved that the petitioner be placed under suspension pending departmental enquiry by attaching him with the District Judge, Lucknow. The office memo dated 04.05.2001 was served upon the petitioner for suspension and initiation of departmental enquiry.
13. The petitioner has also submitted that on the basis of his representation dated 22.05.2001 and 01.12.2001, the order of suspension was recalled vide M.O. No. C-604/CF (A/201) dated 21.12.2001. The respondent no. 2 refused to allow representation dated 14.02.2002 made by the petitioner for grant of full salary allowance etc during the period of suspension from 04.05.2001 to 23.12.2001 observing that at this stage, this representation could not be considered as the inquiry was still pending. This Court vide letter dated 29.05.2006 rejected the claim of the petitioner for grant of full salary allowance whereas no punishment for withholding the salary for suspension was passed after conclusion of departmental inquiry.
14. It is further mentioned by the petitioner that he approached Hon'ble Apex Court by means of Writ Petition (Civil) No. 263 of 2001 under Article 32 of the Constitution of India and Hon'ble Apex Court vide judgment and order dated 23.11.2008 directed this Court to decide his other better representation and it was directed that this Court if decides to continue with the departmental inquiry, the same shall be expeditiously concluded. The petitioner has further mentioned that the names of certain recommended candidates did not figure in the select list prepared by the petitioner. On account of this, the petitioner was incurring the displeasure and wrath of the Hon'ble sitting Judge of this Court. Sri Vikram Jeet Singh was really acting under the dictates of other Hon'ble senior sitting judge, who was also nominated as member of collegium of this Court. It was pointed out by the petitioner that on 26.05.2000 and 27.02.2001 Hon'ble Mr. Justice Palok Basu was not the Inspecting Judge vis a vis of the petitioner and his Lordship forwarded the said notes quite out of way and only on account of his grudge against the petitioner. Out of these notes, note dated 26.05.2000 was not approved by the administrative committee held on 14.07.2000.
15. It is further pleaded by the petitioner that during pendency of the aforesaid writ petition before Hon'ble Apex Court a charge sheet was furnished to the petitioner on 08.10.2001. The petitioner, prior to submission of written statement of defence, made an application on 15.01.2001 to the then Inquiry Judge requesting therein that he be provided copies of certain documents, which are necessary for proper adjudication of the controversy involved in the matter.
It is further contended that the Inquiry Judge exonerated the petitioner in respect of charge no. 5 to 10 relating to complaint made by Sri Padam Singh, Advocate. The petitioner made submission in his explanation in regard to charge no. 1 to 4 to conduct of examination for appointment to Class-III posts in district Ghazipur. The petitioner had mentioned in his application dated 15.10.2001, that correspondence D.O. letters dated 05.11.1999, 15.12.1999 and 17.01.200 written by Sri Vikram Jeet Singh to this Court are relevant and are connecting with the subject matter of the inquiry. He requested that copies of these letters and other various documents referred by him in paragraph no. 7 of the said application be furnished to him. The petitioner was informed vide letter dated 07.11.2001 that Inquiry Judge had ordered that the petitioner may inspect the relevant documents and further he shall be made available copies of such documents, which can be legally handed over to him.
16. The petitioner was also informed that order of Hon'ble Mr. Justice T.P. Garg and Hon'ble Mr. Justice A.S. Gill the then Inspecting Judge, have not been proposed in evidence in support of charge no. 1 to 4, hence copies of these documents may not be supplied to the petitioner. The petitioner in paragraph no. 26 has mentioned details of the documents, which were required by him during the course of departmental inquiry.
17. The petitioner has further mentioned that initially Hon'ble Mr. Justice B.K. Roy was nominated as Inquiry Judge. The petitioner requested for expediting the inquiry for reason that the petitioner was in the zone of consideration for his elevation to be as Judge of this Court. He moved an application on 07.03.2002 in this regard. Hon'ble Mr. Justice B.K. Roy on his nomination as member of Administrative Committee had released the departmental inquiry. Thereafter no date was fixed after 16.02.2002. When the petitioner was posted as District Judge Shravasti, requested that any other Hon'ble Inquiry Judge of Lucknow Bench be nominated. Hon'ble Mr. Justice S.K. Agarwal was nominated on 08.03.2002 as Inquiry Judge, who fixed 5th and 6th of April, 2002 in the inquiry proceedings. Thereafter no date was fixed and the petitioner again moved application dated 10.05.2002 for expeditious conclusion of his departmental inquiry as the petitioner was reaching the age of superannuation in April, 2003. Thereafter 13th and 14th April, 2002 were fixed for recording the statements of four prosecution witnesses, who were not listed in the charge sheet. The presenting Officer produced these witnesses on 13th and 14th April, 2002. The petitioner's objection was ignored by the Inquiry Judge. His Lordship examined four witnesses, namely, Sarvashri Mahinder Singh, Shamshad Ahmed, Mukhtayar Ahmed and Kripa Shankar.
It is further mentioned that brother-in-law of Mahinder Singh appeared in the examination. As he was not selected, Shri Mahindra Singh also permitted as selected candidates to join even when the District Judge was in his office. He never made any complaint also that he increased marks in answer scripts P-4 and P-5 at the instance of the petitioner. The petitioner has mentioned statements of these witnesses in paragraph no. 29 and submitted that Presiding Officer closed the evidence on 03.09.2002 and thereafter six defence witnesses were examined and the petitioner also filed his affidavit as evidence. The inquiry was conducted on 11.01.2003 and the matter was kept reserved for findings. Hon'ble Mr. Justice S.K. Agarwal did not submit his report till he resigned in the year 2005.
It is further pleaded that Hon'ble Mr. Justice Ashok Bhushan was appointed as Inquiry Judge and heard the arguments on 01.05.2005. During the period from 11.01.2003 upto 01.05.2005 for period of about two years and four months, the inquiry did not proceed any further, inasmuch as no inquiry report was submitted. The petitioner has further submitted that in the meantime, the petitioner's chance of elevation as a Judge of this Court got scuttled and he even retired on attaining the age of superannuation on 30.4.2003. Hon'ble Inquiry Judge heard the arguments on 01.05.2005 and thereafter after a lapse of period of about four months, the inquiry report dated 04.05.2005 was served on the petitioner on 12.09.2005.
18. It is also pleaded by the petitioner that on 04.05.2005, the petitioner made an application for placing the same before Inquiry Judge praying therein that he be provided an opportunity of arguments with assistance of one Sri Amit Pal Singh, Civil Judge (Sr. Div.), who was earlier appointed as Defence Assitant. This application was sent by FAX on 04.05.2005. The Inquiry Judge without considering the said request appears to have submitted his report on 04.05.2005. It is further contended by the petitioner that he submitted his comments/representation to the enquiry report and requested that Hon'ble the Chief Justice vide order dated 07.04.2000 was pleased to fully exonerate the petitioner with regard to conduct of examination and thus the said matter having been considered by Hon'ble the Chief Justice, the petitioner stood fully exonerated and therefore, there was no occasion to enquire into the matter through departmental proceedings again.
19. It is further contended that he also stated in his representation that he had not evaluated even any single answer script and as such, there was no occasion or scope adding or excluding any name in the select list or for manipulation, cutting over-writing and interpolation in the answer scripts. It was also mentioned by him that none of the witnesses has stated in their statement that any interpolation, cutting, and overwriting, if any, in the answer scripts were made by the petitioner.
20. The petitioner has further pleaded in his reply that the evidence of Sri Vikram Jeet Singh is inconsistent, contradictory and is based on hearsay evidence. His statement is an opinion formed in haste without properly perusing the records pertaining to conduct of examination and has sent contradictory reports. There was no evidence on record direct or indirect that the petitioner had committed any misconduct and in fact the charge nos. 1 to 4 have not been proved. The petitioner has further pointed out that in his reply, he mentioned that Stenographers and Clerks form a single unit of ministerial establishment of a Judgeship and Stenographer can be recruited from regular source as per Rule-3 of the Rules governing the services conditions of ministerial staff. The combined examination can be conducted for recruitment of Clerks and Stenographers for the reason that there are no separate Rules for these two categories of posts. The petitioner had not issued appointment letter to appoint any candidate on the post of Stenographer. He had issued appointment orders of appointment of 21 Clerks. It is further pleaded that during the inquiry six of the selected candidates were examined as defence witnesses, who deposed that where-ever cutting and overwriting etc were found, they were in their own handwriting, which were made by the candidates concerned at the time of examination.
21. The petitioner has further pleaded that the evidence of Sri Ram Singh, who was the Chairman of the selection committee, was misread by Hon'ble Inquiry Judge. Hon'ble Inquiry Judge himself in the inquiry report has stated that the charge of illegal gratification was not proved. Hon'ble Inquiry Judge has recorded finding that interpolation in answer script of the candidates were done with improper motive, which is clearly a misconduct. In this regard, petitioner has submitted that he was not directly involved with evaluation of answer scripts as such, even if certain interpolation is found, same could not have been attributed to the petitioner, as such, it could not form basis of any misconduct against him.
22. It is further submitted that the impugned order of punishment of deduction of 25% amount from pension of the petitioner has been passed against the evidence on record. It is also not sustainable for simple reason that no motive was found proved by Hon'ble Enquiry Judge.
23. On the basis of above facts and circumstances of the case, following reliefs have been sought by the petitioner:-
(i) To issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 17.01.2006 passed by the respondent no. 1, as is contained in Annexure No. 1 to this writ petition.
(ii) To issue a writ, order or direction in the nature of Mandamus commanding the respondents not to give effect to the impugned order dated 17.01.2006 passed by the respondent no. 1 as is contained in Annexure No. 1 to this writ petition.
(iii) To issue a writ, order or direction in the nature of Mandamus commanding the respondents not to make any deduction from the pension of the petitioner pursuant to the impugned order of punishment dated 17.01.2006 passed by the respondent no. 1.
(iv) To issue a writ, order or direction in the nature of Mandamus commanding the respondents to make payment of full salary to the petitioner for the period of suspension w.e.f. 04.05.2001 to 22.12.2001 ending with the order No. C-604/C.F. (A) 2001 dated 22.12.2001 and not to deduct any amount of salary over and above the subsistence allowance pursuant to letter/order No. C.383/C.P. (A) 2006 dated 29.05.2006 of respondent no. 2 and not to give effect to said letter/order as is contained in Annexure No. 4 to this writ petition.
24. The Registrar General, High Court of Judicature at Allahabad has been arrayed as respondent no. 2. Counter affidavit has been filed on his behalf. It is pleaded in the counter affidavit that the petitioner was appointed as Munsif in U.P. Nyayik Sewa on 09.11.1970 and was promoted as Civil Judge on 22.01.1977 and in U.P.H.J.S. as Additional District & Sessions Judge on 30.05.1981. While the petitioner was posted as Additional Munsif, Ghaziabad, the Court has awarded him the following remarks in the year 1971-72, which reads as under:-
"Disposal below standar. He must improve his out-turn. No civil or criminal work seen. The District Judge has observed that his judgments are on the whole satisfactory. No reason to doubt his integrity."
25. Likewise when the petitioner was posted as Additional Munsif, Kanpur, this Court awarded him following remarks in the year 1975-76, which is mentioned in paragraph no. 7 of the counter affidavit:-
"Disposal slightly above standard (116.43%). The Chief Judicial Magistrate while describing him as a hard-working officer comments that his control over his subordinates is slack. According to the District Judge, Kanpur his judgments are good and expression and language satisfactory. The District Judge reports that his inspection notes are full and effective. He assesses him as a very good officer. No reason to doubt his integrity."
26. It is further pleaded by the respondents that the District Judge, Bijnor, has given him annual remarks for the year 1988-89. When the petitioner was posted as Additional District & Sessions Judge, Bijnor in 1988-89 and 1990-91. These remarks are brought on record as Annexure-CA-2 and CA-3. Likewise, the District Judge, Moradabad has given remarks to him for the year 1993-94 while the petitioner was posted as Additional District & Sessions Judge, Moradabad. These remarks have also been brought on record as Annexure No CA-4. In the year 1988-89 remarks was awarded that disposal was not upto the standard. In 94 working days, outturn of 81.3 days i.e. 86.5%. Reasons for short disposal given by the officer are enclosed. Figures of disposal before joining at Bijnor on 8.5.1988 were not available. In the year 1993-94, it was found that the petitioner did not dispose of any execution case.
27. This Court awarded following remarks for the year 1994-95 while the petitioner was posted as Additional District & Sessions Judge, Moradabad, which is reproduced as follows:-
"Disposal adequate bring 142%. The officer was not particular about disposing of old cases. No complaint was heard in regard to his behaviour with the Bar.
Integrity certified."
28. It is further pleaded by respondent no. 2 that Sri Padam Singh, President Collectorate Bar Association, Etah made a complaint dated 04.08.1998 against the petitioner regarding corrupt practice of the petitioner, while he was posted as District & Sessions Judge, Etah. Upon which, Hon'ble the Chief Justice had passed the orders on 17.08.1998 for inquiry into the allegations, by the Special Officer (Vigilance), High Court, Allahabad. On the basis of representation dated 13.3.2000 submitted by the petitioner, vigilance inquiry was dropped by Hon'ble the Chief Justice and order dated 31.03.2000 is reproduced in paragraph-13 of Counter affidavit, which reads as under:-
"The representation is allowed.
The vigilance enquiry be dropped."
29. It is further informed and pleaded that Hon'ble Mr. Justice Palok Basu, the then Inspecting Judge of District Ghazipur perused character roll of the petitioner for recording of 'Annual Confidential Remarks' for the year 1998-99 and made queries with regard to the vigilance inquiry initiated against the petitioner. Thereafter His Lordship wrote a note dated 26.05.2000 to Hon'ble the Acting Chief Justice. The letter dated 11.07.2000 written by His Lordship was placed before the Hon'ble Administrative Committee, which considered the same in its meeting held on 14.07.2000 and following resolution was passed, which is mentioned in paragraph no. 14 of counter affidavit:-
"Considered the note dated 26.05.2000 of Hon'ble Mr. Justice Palok Basu, Administrative Judge, Ghazipur for the year 1997-98 & 1998-99 regarding V.B. Enquiry No. 18/98 relating to Etah judgeship against Sri R.P. Singh, the then District Judge, Etah (later District Judge, Ghazipur), now District Judge, Aligarh which was dropped by the then Hon'ble the Chief Justice vide his Lordship's order dated 31.03.2000.
Resolved that no action need be taken in the matter."
30. It is informed and pleaded by respondents that the Private Secretary of Hon'ble Mr. Justice Palok Basu wrote a note to the learned Registrar General to the effect that the file of the then District Judge, Ghazipur Sri R.P. Singh had come for Annual remarks before Hon'ble Mr. Justice Palok Basu and the said file was sent back for about more than three or four months ago with a direction to send the same along with the file of the examination for Class-III & IV employees, which was conducted at Ghazipur under the supervision of said Sri R.P. Singh and the examination was later cancelled. On the basis of aforesaid direction of his Lordship, file pertaining to the examination of Class-III & Class IV employees of district Ghazipur conducted by the petitioner was submitted by the registry vide note dated 01.12.2000. His Lordship wrote a note to Hon'ble the Chief Justice on 27.02.2001, which is mentioned in paragraph no. 16 of the counter affidavit.
31. It is further submitted that this note was considered by the Administrative Committee in its meeting dated 27.04.2001 on the basis of order dated 12.03.2001 passed by Hon'ble the Chief Justice. The resolution passed by Hon'ble Administrative Committee has been brought on record as Annexure No. CA-5. It was resolved by Hon'ble the Administrative Committee that in view of other material placed on record, the previous decision of Administrative Committee dated 14.07.2000 is recalled and the departmental inquiry proceedings be initiated against the officer (petitioner). He was also placed under suspension pending the departmental inquiry.
32. It is further pleaded by respondent no. 2 that in pursuance to the resolution dated 27.04.2001, draft charge sheet contained 10 charges was prepared against the petitioner, which was approved by Hon'ble the Chief Justice on 24.09.2001. The charge sheet dated 26.09.2001 was served upon the petitioner on 08.10.2001. The petitioner has submitted his written statement dated 26.11.2001 against the charge sheet vide his letter dated 29.11.2001.
33. The petitioner had moved representations dated 22.05.2001 and 01.12.2001 for revocation of his order of suspension and to drop the inquiry. Hon'ble Administrative Committee in its meeting held on 18.12.2001 considered these representations and order of suspension passed against the petitioner was recalled vide Court's order dated 21.12.2001 and he was posted as District Judge, Shravasti.
It is further submitted that Hon'ble the Chief Justice nominated Hon'ble Mr. Justice S.K. Agarwal to conduct the inquiry against the petitioner vide order dated 05.03.2002. On account of transfer of Hon'ble Mr. Justice S.K. Agarwal, the said inquiry was nominated to Hon'ble Mr. Justice Ashok Bhushan vide order dated 18.02.2005 passed by Hon'ble the Chief Justice. The Inquiry Judge submitted his report dated 04.05.2005. Hon'ble the Chief Justice passed order dated 26.05.2005 to place the inquiry report before the Administrative Committee. The Inquiry Judge found charge no. 1 to 4 proved except the charge of illegal gratification against the petitioner. Therefore, under order dated 03.06.2005 of Hon'ble the Senior Vacation Judge, a copy of inquiry report dated 04.05.2005 was furnished to the petitioner vide Court's D.O. letter No. 443/CF (A)/2005 dated 14.07.2005 for his comments/representation.
34. It is mentioned that the petitioner submitted his comments/representation dated 01.10.2005 against the inquiry report dated 04.05.2005. Hon'ble the Administrative Judge in its meeting held on 29.11.2005 passed the following resolution, which is mentioned in paragraph no. 26 of the counter affidavit:-
"Considered the enquiry report dated 04.05.2005 submitted by Hon'ble Mr. Justice Ashok Bhushan, Enquiry Judge and comments dated 01.10.2005 of the officer concerned thereupon along with note dated 05.06.2005 of the Registrar General with office note dated 31.05.2005.
Resolved that the report be accepted. The matter be referred to Full Court for consideration of quantum of punishment."
35. Hon'ble Full Court in its meeting held on 17.12.2005 had considered inquiry report dated 04.05.2005 and comments/representation dated 01.10.2005 submitted by the petitioner and following resolution was passed by Hon'ble Full Court, which is mentioned in paragraph no. 27 of the counter affidavit:-
"Considered the enquiry report dated 04.05.2005 submitted by the Hon'ble Mr. Justice Ashok Bhushan, Enquiry Judge and comments dated 01.10.2005 of the officer concerned thereon in view of A.C. resolution dated 29.11.2005.
Resolved that the enquiry report be accepted. The retired officer be punished with curtailment of 25% of pensionary benefits with immediate effect.
Recommendation in this regard be immediately communicated to the government by the registry."
36. In pursuance of the aforesaid resolution dated 17.12.2005 of the Hon'ble Full Court, Government of U.P. was moved for issuance of necessary Government orders in this regard vide Court's D.O. letter No. C-969/CF (A)/2005 dated 20.12.2005. The Government of U.P. has issued Government Office Memorandum No. 6071/II-4-05-26/2 (26)/2005 dated 17.01.2006 for deduction of 25% of the pension of the petitioner, which was served on the petitioner.
37. It is further mentioned that the petitioner moved an application dated 15.10.2001 before Hon'ble Inquiry Judge to fix some date for inspection of records, files, necessary scripts and to furnish/supply of the copies of the certain orders, reports, notes, D.O., letters and for granted him suitable time to file the written statement to the charge sheet. Hon'ble Inquiry Judge considered this application and passed order dated 29.10.2001, which is mentioned in paragraph 30 of the counter affidavit.
38. Hon'ble Administrative Committee in its meeting held on 24.04.2002 considered representation dated 14.02.2002 submitted by the petitioner regarding grant of full salary, allowance etc. during the period of suspension i.e. from 04.05.2001 to 23.12.2001. This resolution has been brought on record as Annexure No. CA-7. The petitioner again moved an application dated 15.04.2002 before Hon'ble Inquiry Judge with request to bring on record some facts and circumstances and for review of order dated 05.04.2002. This application was rejected by Hon'ble Inquiry Judge vide order dated 04.05.2002 (Annexure No. CA-8).
39. It is further contended that the Presenting Officer moved an application dated 12.06.2002 before Inquiry Judge and for seeking permission to summon Mr. Mukhtar Ahmad, the then Additional District Judge, Ghazipur, Kripa Shankar, the then Civil Judge (Jr. Div.), Ghazipur and the committee members, Sri Shamshad Ahmad and Sri Mahendra Singh. The Inquiry Judge, passed the following orders on 14.06.2002, which is mentioned in paragraph no. 33 of the counter affidavit:-
"I have perused the application and the objections engrated by the officer under enquiry on the left hand side of this application.
In my opinion, in the interest of justice, it shall be expedient to summon Sri Shamshad Ahmad and Mahendra Singh, the two membersof the Committee and Sri Krip Shanker and Mukhtar Ahmad, who had corrected the copies, to unfold the truth.
The aforesaid officers may be summoned for 13th and 14th July 2002. The enquiry shall be conducted at Lucknow. This is done looking to the ailment of Sri R.P. Singh, the officer under enquiry. In calling him here at Allahabad he has to travel 200 kms. or more in comparison to Lucknow from Shravasti, where he is presently posted. In the circumstances, the enquiry shall be held in the High Court Guest House at Lucknow located in L.B. Shastri Marg on the above said dates. The officer concerned will also be informed accordingly."
40. The petitioner again moved an application dated 02.07.2002 for reconsideration of summoning of four witnesses and for recall of that order, Hon'ble Inquiry Judge passed the order dated 13.07.2002, in this regard mentioned in paragraph no. 34 of the counter affidavit.
41. It is further pleaded that the petitioner also moved an application dated 24.10.2002 with request that Sri Amit Pal Singh, Civil Judge (Sr. Div.), Baghpat might be nominated as a defence assistant in the inquiry, which was allowed by Hon'ble Inquiry Judge on 24.10.2002. The petitioner had sent FAX message requesting that the department might be directed to place complete records and thereafter, to provide him proper opportunity for arguments with the assistance of Sri Amit Pal Singh and also to fix a date for further arguments. The said application was rejected by Hon'ble Inquiry Judge vide order dated 04.05.2005 and the copy of the order is brought on record as Annexure No. CA-9. The Hon'ble Full Court in its meeting held on 20.05.2006 considered the representation dated 20.03.2006 regarding payment of salary etc. from 04.05.2001 to 22.12.2001 and for gratuity, which was considered and following resolution was passed by Full Court, which is mentioned in paragraph no. 37 of the counter affidavit.
"Considered the application dated 20.03.2006 of the officer concerned regarding payment of salary of suspension period i.e. from 04.05.2001 to 22.12.2001 along with office notes dated 02.05.2006.
Resolved that the application be rejected. For the suspension period with the order No. C-604/CF (A)/2001 dated 21.12.2001 no amount over and above the subsistence allowance, which has already been paid, shall be paid to Sri Raj Pal Singh. The period of suspension shall be treated as a period spent on duty for retiral benefits only.
Registry to take follow up action."
The Additional Director Treasuries, Camp Office, Allahabad was directed accordingly vide letter dated 29.05.2006.
43. The respondents have brought on record letter dated 12.10.1998 (Annexure CA-10) written by the petitioner for seeking permission to fill up the vacancies in the cadre of Stenographers and Clerical Cadre of Class-III establishment of the Judgeship. Letter dated 05.05.1999 (Annexure No. CA-12) has also been brought on record, by which, it was informed that a committee for holding examination for recruitment of Class-III employees was constituted and details of notified 21 vacancies was also provided to the Court in compliance of order dated 23.12.1998 passed by Hon'ble Inspecting Judge. Shri Ram Singh, Additional District & Sessions Judge-II, Ghazipur was appointed as Chairman of the Committee and Sri Shamshad Ahmad, Civil Judge (Senior Division), Ghazipur, Sri Mahendra Singh, Civil Judge (Junior Division), Ghazipur and Sri Raghvendra Ist Additional Civil Judge (Junior Division), Ghazipur were appointed as Member of the Committee.
44. The petitioner vide letter dated 11.08.1999 (Annexure No. CA-13) communicated to the Court result of examination conducted at Judgeship, Ghazipur. Sri Vikram Jeet Singh, District Judge Ghazipur, who was successor of the petitioner, requested the Court vide letter dated 11.11.1999 (Annexure No. CA-14) that the said examination and recruitment conducted on 04.07.1999 by the petitioner be cancelled on the basis of five reasons mentioned in his letter. Hon'ble the Chief Justice was pleased to direct the petitioner to submit his explanation in respect of the examination of recruitment of Class-III employee held on 04.07.1999. The then Registrar General Sri S.S. Kulshrestha (elevated as Judge of this Court) vide letter dated 13.01.2000 had informed the petitioner in this regard. The petitioner submitted his explanation vide letter dated 13.03.2000 (Annexure No. CA-16).
45. The respondents have contended that procedure for recruitment/appointment of Class III employees is laid down in the Uttar Pradesh Subordinate Civil Courts Ministerial Establishment Rules, 1947 and the Uttar Pradesh Rules for the Recruitment of the Ministerial Staff of the subordinate offices in Uttar Pradesh 1950. It is further submitted that Sir Vikram Jeet Singh, if found any illegalities or irregularities in the selection process conducted by the petitioner, he was well within his jurisdiction to report the matter to the Hon'ble High Court and it is immaterial that there were no complaints from any corner in this regard. It is also contended that on the basis of representation dated 13.03.2000 the vigilance inquiry initiated on the complaint of Advocate Sri Padam Singh of Etah was dropped by Hon'ble the Chief Justice.
46. The respondents have also mentioned that Hon'ble Mr. Justice Palok Basu the then Inspecting Judge, Ghazipur called for character roll of the petitioner for recording 'Annual Confidential Remark' for the year 1998-89 and made queries with regard to the vigilance inquiry initiated against the petitioner. His Lordship also wrote a note dated 26.05.2000 to Hon'ble the Acting Chief Justice, which was placed before the Administrative Committee after consideration of the note of Hon'ble Inspecting Judge, resolution dated 14.07.2000 was passed by the Administrative Committee pertaining to note dated 26.5.2000 and resolved that no action need to be taken in the matter.
It is further informed that the Private Secretary of Hon'ble Mr. Justice Palok Basu again wrote a letter dated 16.10.2000 to Registrar General and called for file pertaining to recruitment/examination of Class-III and IV employees, which was conducted by Judgeship Ghazipur under the supervision of petitioner Sri R.P. Singh, which was latter cancelled. Hon'ble the Chief Justice considered the note dated 27.02.2001 sent by Hon'ble Mr. Justice Palok Basu the then Inspecting Judge and vide order dated 12.03.2001, the matter was placed before the Administrative Committee and Hon'ble Administrative Committee considered the note prepared by Hon'ble Inspecting Judge and in pursuance of resolution dated 27.04.2001, the petitioner was placed under suspension vide court's O M dated 04.05.2001 and draft charge sheet containing ten charges was prepared against the petitioner, which was approved by Hon'ble the Chief Justice on 24.09.2001. The charge sheet dated 26.09.2001 was served upon the petitioner. On 26.11.2001 the petitoiner submitted his reply to the charge sheet vide his letter dated 29.11.2001.
47. The respondents have further contended that the complaint made by Sri Padam Singh has no relevance with the controversy in the present case. On perusal of the charge sheet it shows that the said charge sheet was issued to the petitioner in respect of irregularities committed relating to selection/examination conducted on 04.07.1999 for recruitment of 21 Class-III employees and Stenographers. The petitioner is deliberately trying to confuse the issue by referring to the complaint of Sri Padam Singh, Advocate Etah, because the charges against the petitioner have nothing to do with the complaint of Sri Padam Singh.
It is further submitted that Hon'ble Full Court in its meeting held on 20.05.2006 considered representation dated 20.3.2006 forwarded by the petitioner and it was resolved that the period of suspension be treated as period spent on duty for retiral benefits only. It is stated that the order dated 17.01.2006 is perfectly legal and valid.
It is further submitted that it is absolutely incorrect to say that the then Hon'ble Sitting Judge of Hon'ble High Court was in any manner prejudiced against the petitioner or the then District Judge Vikram Jeet Singh was acting under the dictates of the then sitting Judge of this Court. The petitioner is making wild and reckless allegations only to lend colour to the present writ petition.
48. It is further contended by the respondents that it is absolutely incorrect to say that the charge-sheet issued to the petitioner had nothing to do with the complaint of Sri Padam Singh, Advocate Etah. It is further mentioned that Hon'ble Inquiry Judge had considered application dated 15.10.2001 moved by the petitioner during departmental proceedings and passed following orders on 29.10.2001:-
"Received this envelop sent by registered post containing letter-dated 15.10.2001 today dated 29.10.2001 after I returned back today from my leave and Durga Puja vacations of the Court.
Perused the letter and came to know of the request made by the delinquent for inspection of records and made and supplies of copies of connected documents pertaining to Enquiry-S-7/2001.
In the interest of justice the prayer made by the delinquent officer is allowed to the extent that he shall be entitled to inspect the relevant documents and he shall be made available copies of such documents which can be legally handed over to him for the purposes of this enquiry within a fortnight.
Let O.S.D. (Enquiry) act accordingly intimating the delinquent for inspection of the records etc. fixing 29th November 2001 for submission of his written statement."
49. The O.S.D. (Enquiry) vide letter dated 07.11.2001 informed the aforesaid order to the petitioner and also informed that the correspondence made by the then Inspecting Judges, Hon'ble Mr. Justice T.P. Garg, Hon'ble Mr. Justice A.S. Gill, Hon'ble Mr. Justice Ikramul Bari, Hon'ble Mr. Justice Palok Basu and administrative correspondences made with the then District Judge Vikram Jeet Singh were the confidential documents. They have not been proposed as evidence in support of charges framed against the petitioner. Copies of letter dated 15.10.2001 of the petitioner and Court's D.O. letter dated 7.11.2001 have been brought on record as Annexure CA-17 and CA-18.
50. It is further mentioned that Sri Vikram Jeet Singh vide letter dated 11.11.1999 (Annexure No. CA-14), who was the then District Judge, Ghazipur informed the Inspecting Judge, Ghazipur that examination held on 04.07.1999 by the petitioner should be cancelled, because vacancies were not properly ascertained, the candidates found fit for the post of Clerks and Paid Apprentices only were empanelled against the posts of Stenographers also, the list of selected candidates smacked of manipulation, there was no immediate need for additional staff and there were serious allegations of manipulations and corruption against Sri R.P. Singh, the then District Judge, Ghazipur.
It was observed by Hon'ble Inspecting Judge that it was undesirable that the select list prepared was retained and appointment orders issued were honoured. Hon'ble the Inspecting Judge also observed that the District Judge was the appointing authority and might take his decision in the light of the above information. He was at liberty to cancel the select list and the appointment letters already issued and to terminate the services of those appointees from the select list, who had already joined, taking into consideration the urgency in the matter and also directed that the District Judge be advised accordingly, enclosing a copy of these notes promptly.
51. The respondents have further pleaded that under order dated 22.09.2000 of Hon'ble Administrative Judge, Ghazipur copies of complaint of Sri Kaulesh Agnihotri and others of Ghazipur and complaint of Sri Kuldeep Narain Rai, litigant of Ghazipur made against the petitioner, were sent to the District Judge, Ghazipur for his report in the matter vide Court's letter dated 29.09.2000. In response to the said Court's letter, Sri Vikram Jeet Singh sent his report vide his letter dated 3.11.2000. It is informed by the respondents that letters dated 20.12.1999, 16.10.1999 and 11.01.2000 written by Sri Vikram Jeet Singh the then District Judge Ghazipur are not traceable in the available record. Whereas D.O. letter dated 05.11.1999, 29.09.2000 and 03.11.2000 written by Sri Vikdram Jeet Singh has been brought on record as Annexure No. CA-21, CA-22 and CA-23.
It is further submitted that examination of Class-III employees conducted under supervision of the petitioner at Judgeship was cancelled by Sri Vikram Jeet Singh the then District Judge, Ghazipur vide order dated 17.01.2000. Sri Vikram Jeet Singh vide letter dated 05.08.2001 informed the Court with regard to certain facts relevant to the recruitment of Class III employees in Ghazipur Judgeship, which came to his notice, while complying with the order dated 02.05.2001 of this Hon'ble Court.
52. The respondents have also brought on record the copies of letters dated 08.05.2001, 03.07.2001, 1.8.2001 and 16.08.2001 (Annexure No. CA-27) written by Sri Vikram Jeet Singh. It is further contended that the petitioner moved three applications on 09.09.2002, which were considered by the Inquiry Judge and following orders were passed:-
"On 08.07.2002 I had directed Sri R.P. Singh, the then District Judge, Shravasti, to inspect the records other than the confidential. The communication in this connection by a fax massage was made to him. His claim presently is that it was not received by him since the fax machine there was not responding to the massage submitted. He has made a fresh application detailing the documents which he wants to examine before submitting a list of witnesses in defence. Some of these documents are on the record of the present enquiry. Some other records that he wants to inspect are in Ghazipur Judgeship. Except confidential records, the records mentioned in the list filed today may be made available to him for inspection other than confidential records. They are not open to inspection.
The presenting officer is directed to obtain photocopies of the papers, duly attested from the District Judge, Ghazipur for inspection of the charge officer expeditiously.
Sri R.P. Singh, charge officer, has filed photocopies of 37 sheets as defence documents which have been exhibited and placed on record.
Fix 21.09.2000 for inspection by the charged officer in the office of O.S.D. (Enquiry), High Court, Allahabad."
53. The applications dated 09.09.2002 moved by the petitioner has been brought on record as Annexure No. CA-28, CA-29 and CA-30.
54. It is further pleaded that the inquiry was further nominated to Hon'ble Mr. Justice S.K. Agarwal vide order dated 05.03.2002 passed by Hon'ble the Chief Justice. On account of transfer of Hon'ble Mr. Justice S.K. Agarwal, the said inquiry was nominated to Hon'ble Mr. Justice Ashok Bhushan (now elevated as Judge of Supreme Court of India) vide order dated 18.02.2005 passed by Hon'ble the Chief Justice. The inquiry report dated 04.05.2005 submitted by Inquiry Judge Hon'ble Mr. Justice Ashok Bhushan before Hon'ble Administrative Committee was placed under order dated 26.05.2005 passed by Hon'ble the Chief Justice. Hon'ble Inquiry Judge found charge nos. 1 to 4 proved against the petitioner. The inquiry report dated 04.05.2005 was furnished to the petitioner under orders of Hon'ble Senior Vacation Judge vide D.O. letter dated 14.07.2005 for his comments/representation.
55. The respondents have mentioned that the Presenting Officer/O.S.D. (Enquiry) moved application dated 12.06.2002 before the Enquiry Judge seeking permission to examine Sri Mukhtar Ahmad the then Additional District Judge, Ghazipur, Sri Kripa Shankar Civil Judge (Junior Division), Ghazipur and Committee Members Sri Shamshad Ahmad and Sri Mahendra Singh. The petitioner endorsed his objections on application moved by the Presenting Officer, which are as follows:-
"The Chairman of the Committee Sri Ram Singh, P.W.-4 has already been examined and the witnesses sought to be examined are not material for fair, just and proper decision of the enquiry and all these witnesses are not even cited in the charge sheet wherein the copy of the selection committee was already on record. The application will delay the disposal of the enquiry."
56. The order dated 14.06.2002 passed by Hon'ble Enquiry Judge has already been reproduced in para 39, which is here-in-above also mentioned by the respondents, in paragraph-70 of the counter affidavit.
57. The Enquiry Judge also passed order dated 13.7.2002 during the course of inquiry and the petitioner had not raised objection for the examination of the above mentioned officers. Sri Padam Singh was discharged on 03.09.2002.
58. The respondents have contended that on 11.01.2003 enquiry was concluded and reserved for preparation of inquiry report. In the meanwhile on account of transfer of Hon'ble Mr. Justice S.K. Agarwal, Enquiry Judge, Hon'ble Mr. Justice Ashok Bhushan was nominated as Enquiry Judge. The enquiry report dated 04.05.2005 submitted by Hon'ble Mr. Justice Ashok Bhushan was placed before the Administrative Committee under order dated 26.05.2005 passed by Hon'ble the Chief Justice. Hon'ble Enquiry Judge perused the enquiry file on 14.03.2005 and fixed 09.04.2005 for hearing arguments. The enquiry was held on 09.04.2005 and following orders were passed:-
"Present Sri Shashank Shekhar and Sri R.P. Singh, Sri Shashank Shekhar has opened the case on behalf of the Department. Enquiry is fixed for 30th April, 2005 at 2:00 p.m. for hearing.
Sri Shashank Shekhar shall make available the service record including the Character Roll of Sri R.P. Singh."
On 30.04.2005, following order was passed:-
"Due to Full Court meeting, the enquiry proceedings could not be held today.
Put up tomorrow at 10:00 a.m. in my Chambers."
59. Hon'ble Enquiry Judge heard arguments on 01.05.2005 of Presenting Officer and the petitioner. Both the parties concluded their submissions. The Presenting Officer had also produced the personal file of the petitioner for perusal of the Court. Enquiry proceedings thus concluded and enquiry report dated 04.05.2005 was submitted by the Enquiry Judge. The enquiry report dated 04.05.2005 was considered by the Administrative Committee in its meeting held on 29.11.2005 and resolved that the enquiry report be accepted and the matter be referred to Full Court for consideration of quantum of punishment. Hon'ble Full Court in its meeting held on 17.12.2005 passed the resolution that enquiry report be accepted and retired officer be punished with curtailment of 25% of pensionary benefits with immediate effect and recommendation in this regard be communicated to the Government through registry. In pursuance of the aforesaid resolution dated 17.12.2005 of Hon'ble Full Court, the Government of U.P. on the basis of recommendation made by the Court after due consideration issued the Government O.M. dated 17.01.2006 for deduction of 25% of the pension of the petitioner, which was served upon the petitioner vide D.O. letter dated 18.01.2006.
60. The respondents have contended that during the pendency of enquiry, the petitioner was granted provisional pension of Rs. 10,618/- along with other reliefs per month vide order dated 13.02.2004 passed by Hon'ble the Chief Justice.
61. By the order of Hon'ble the Chief Justice, the provisional pension of the petitioner was also revised with effect from 01.05.2003 i.e. at the rate of Rs. 12,048/- along with other reliefs per month. It is further submitted that the pension papers of the petitioner was sent to the Director, Directorate of Pension, U.P. Indira Bhawan, Lucknow for grant of pension and gratuity to the officer with the remark to deduct 25% from the amount of monthly pension admissible to the petitioner vide Court's letter dated 23.03.2006 in view of the Government orders and relevant Rules. The P.P.O. No. 10/Pa.Nee/M.I.-001/083/055586/C R.-9878 dated 25.05.2006 has been issued by the Directorate of Pension, U.P. Lucknow. For release of withheld gratuity of the petitioner was also recommended to the Directorate of Pension, U.P. Lucknow vide letter dated 03.10.2006.
62. On the basis of above mentioned facts and circumstances of the case, it is pleaded that the present writ petition is wholly misconceived and is liable to be dismissed.
63. The petitioner has filed rejoinder affidavit reiterating his earlier contentions and further submitted that the entire process of examination was conducted by the selection committee and the petitioner did not participate in the selection process, but only approved select list prepared by the selection committee, merely in discharge of his duties being appointing authority and it would be wholly conjectural to deem him to have influenced the members of the selection committee who are judicial officers and hence no misconduct could be attributed to the petitioner in the selection process.
It is further submitted on behalf of the petitioner that failure to discharge statutory duty by the members of the committee cannot adversely or prejudicially affect the interest of the petitioner. The members of the committee cannot be allowed to take undue advantage of their own default or failure to act in accordance with law. The petitioner refuted that any manipulation was made by him. It is also contended that a government servant who has retired and no longer in law in service, cannot be considered any more a government servant and as such the disciplinary proceedings against the petitioner could not have been continued after such retirement on superannuation without the approval of the appointing authority of the petitioner. The enquiry was initiated and concluded even before his retirement but inquiry report was not submitted by Hon'ble Inquiry Judge and no delay was caused on the part of the petitioner in conclusion of the disciplinary proceedings. The delay in conclusion of the departmental proceedings on the part of the department is not justified, has caused great prejudice to the petitioner. Therefore, on account of delay, inspite of the order dated 23.11.2001 passed by Hon'ble Supreme Court of India in Writ Petition (C) No. 263 of 2001, entire departmental proceedings became vitiated. The departmental enquiry has also been vitiated for non-observance of the principles of natural justice and the petitioner has been greatly prejudiced in his defence and the other averments of writ petition are reiterated by him.
64. The petitioner vide affidavit dated 19.04.2018 has provided statements of PW-1 to PW-8 and DW-1 to DW-7 recorded during the course of departmental proceedings initiated against him.
65. We have perused the record and considered the arguments put forth by learned counsel for parties. We have also perused the order dated 23.11.2001 passed by Hon'ble Apex Court in Writ Petition (C) No. 263 of 2001 (Raj Pal Singh (H.J.S.) Vs. High Court of Allahabad and others), which reads as under:-
"This petition under Article 32 of the Constitution was filed by the petitioner, who was a member of Higher Judicial Service, raising certain service disputes. During its pendency, it was brought to our notice that a charge sheet has been served on the petitioner and departmental enquiry proceedings have been initiated against him. The petitioner is willing to cooperate with the enquiry proceedings. However, he wishes the proceedings to be expeditiously concluded and his order of suspension to be re-considered sympathetically by the High Court for which he has already made a representation. In the facts and circumstances of this case, we are not inclined to entertain this petition under Article 32 of the Constitution. The petition be, therefore treated as disposed of without any adjudication on merits and subject to the following observations:
1. The representation made by the petitioner before the High Court for relief, on the Administrative side, specially, as other better representation which the petitioner may choose to make within 10 days from today, may be considered and disposed of by the High Court within a period of four weeks' from today.;
2. In the event of the High Court deciding to continue with the departmental enquiry proceedings, the same shall be expeditiously concluded;
3. In the event of any grievance surviving or arising to the petitioner, he shall be at liberty to seek an appropriate remedy before an appropriate forum as advised;
4. The disposal of the present petition does not amount to expression of any opinion on any of the issues involved in the petition and raised by either party."
66. We have also perused enquiry report submitted by the Enquiry Judge Hon'ble Mr. Justice Ashok Bhushan (now elevated as Judge of Supreme Court of India) and written statement submitted by the petitioner referring charge sheet served upon him.
67. The petitioner has brought on record, the statements of PW-5 to PW-7 and statement of the petitioner by means of affidavit dated 9.5.2018.
68. Supplementary counter affidavit has been filed in compliance of order dated 22.5.2018 by O.S.D. (Litigation), High Court, Lucknow Bench, Lucknow.
69. Order dated 4.8.2006 passed by Hon'ble Apex Court in Civil Appeal No. 3387 of 2006 (Arising out of SLP (C) No. 2693 of 2004 has been brought on record.
70. Order dated 4.8.2006 passed by Hon'ble Apex Court in Civil Appeal No. 3387 of 2006 is being reproduced as under:-
"Leave granted.
An advertisement for 21 posts of Clerks and Stenos in the Court of District Judge, Ghazipur was issued. Written examination was held and 21 persons were selected for the advertised posts and, consequently, appointment letters were issued. The said appointment letters have been terminated in terms of letter dated 17th January, 2002 issued to the selected candidates. The letter dated 17the January, 2000 states that 'The appointment letter No.5561 dated 13.8.99 which was issued by my predecessor. It is terminated today dated 17.01.2000.' Similar letter was issued to all the appointees. The appellants have challenged the termination by preferring writ petitions (CWP Nos. 16465/2000 & 3481/2000_ before the High Court. The writ petitions were dismissed by cryptic orders passed by a learned Single Judge. The order in W.P. No.16465/2000, filed by 12 selected candidates reads as under:-
'Out of the twelve petitioners, who claim to have been selected for appointment to the Civil Court, Ghazipur on Class III posts at least nine belongs to the yadav castes. In my opinion, this fact alone is sufficient to vitiate the selection."
In W.P. No.3481/2000 filed by other selected candidates, following the order passed in W.P. No. 16465/2000, the learned Single Judge passed the following orders:
"Earlier connected writ petition No.16465 of 2000 has been dismissed on the ground that at least out of the 12 petitioners selected at the particular selection for Class III posts in the Civil Court, Ghazipur nine belongs to the yadav community. After this fact no further argument is needed as favouritism is writ at large on the face of it. Even out of the three petitioners in this writ petition, at least first belongs to that (Yadav) community. Regarding the other two the picture is not clear. In my case, such a selection where 75 to 80 percent of the persons selected belong to the one single caste or community just cannot upheld by rational Court. Thus, it is not fit case interference with the cancellation of such a biased selection under the discretionary jurisdiction of this Court under Article 226 of the Constitution of India."
The orders passed by learned Single Judge on 13th August, 2004 dismissing the two writ petitions have been upheld by the Division Bench by dismissal of the Special Appeals by the impugned order.
At this stage, since we are remanding these two writ petitions for fresh decision of the High Court, we wish to say no more than only stating that the selections, if otherwise validly made, cannot be annulled or vitiated on the grounds mentioned in the orders of learned Single Judge. On this ground alone, the orders of learned Single Judge, affirmed by Division Bench by the impugned judgments, have been set aside and it is ordered accordingly.
The two writ petitions above noted are remanded for fresh decision by the High Court.
Learned counsel for the parties submit that since already considerable time has passed since selections were made, the two writ petitions may be directed to be heard by a Division Bench instead of Single Judge of the High Court. We agree. The two writ petitions would be placed for hearing before a Division Bench of the High Court and would be decided after hearing counsel for the parties, without being influenced by the observations made either in the orders of the learned Single Judge or in the impugned judgment of the Division Bench. Before the High Court, counter affidavit will be filed within four weeks' from today and rejoinder within two weeks thereafter.
"The High Court is requested to expeditiously decide the writ petitions, preferably within four months from the receipt of a copy of this order."
The appeals are allowed in the above terms and the impugned judgments set aside."
71. The respondents have also brought on record the copy of order dated 26.04.2007 passed in Civil Appeal No. 3481 of 2006 (arising out of S.L.P. (C) No. 26610 of 2004) Rajesh Kumar Yadav and others Vs. District Judge, Ghazipur, which is reproduced as under:-
"Learned counsel for the petitioners prays for and is permitted to withdraw the writ petition.
The writ petition is dismissed as withdrawn.
Interim order, if any, passed earlier stands vacated."
72.The O.S.D.(Litigation) has also brought on record the report dated21.5.2018 of Incharge/Administrative Officer of District Ghazipur.We have perused the said report whereby it is informed that select list/appointment of employees was cancelled by the then District Judge and none of the employees of the select list is working in the Judgeship Ghazipur. Sri Sanjeev Kumar Sinha, H.J.S.-Additional District Judge/Litigation In-charge, Ghazipur has informed O.S.D. Litigation, High Court, Lucknow Bench vide letter dated 08.05.2018 on the basis of report dated 21.5.2018 submitted by the Administrative Committee, District Court Ghazipur. He has informed that earlier letter no. 738/XV dated 17.05.2018 was also sent by Judgeship Ghazipur. It is reported in letter dated 8.5.2018 that none of the employees appointed by the petitioner is working in the Judgeship Ghazipur, after cancellation of the select list/ appointment dated 17.01.2002(Correct date 17.01.2000).
73. In support of his submission, learned counsel for petitioner has relied upon the decision of Hon'ble Apex Court in the case of Ram Ashray Yadav (Dr), Chairman, Bihar Public Service Commission, In R/o, reported in AIR 2000 SC 1448 the apex court observed in para 17-20 as follows-
"17. This charge relates to the allegation that the wife of the Personal Assistant to the Chief Minister was shown a special favour by suppressing the academic marks of a better candidate. The learned Attorney General as well as learned counsel appearing for Dr Yadav and BPSC addressed lengthy arguments on this charge, which is essentially based on some observations made in Urmila Kumari v. State of Bihar [(1993) 1 Pat LJR 226].
18. A perusal of the above judgment shows that in the said case one Smt Urmila Kumari challenged the appointment of Respondent 3, who was the wife of the then Personal Assistant to the Chief Minister as Parabhilekhpal/Research Assistant in the scale of Rs 880-1510, ignoring her claim to appointment against one of the posts reserved for backward category candidates.
The High Court has adversely commented upon the conduct of the Commission in recommending Respondent 3 in that case. The relevant portion of para 10 of the judgment read thus:
"We seriously condemn the manner in which the Bihar Public Service Commission has conducted itself in recommending Respondent 3. We hope and trust that the Commission shall hereafter adopt and establish some proper procedure of recording of such documents, which may be produced by the candidates, at the time of oral interview and a proper register should be maintained and/or any such method should be adopted as may be thought necessary in order to ensure fairness....... The present case is an example of arbitrariness and partiality in the way and the manner in which Respondent 3 has been favoured. If such is the behaviour of the Commission then the people of the State would start losing faith in such institution. The mistake, as pointed out, could have been corrected if hot haste in the recommendation of Respondent 3 on the very next day of the oral interview would not have been shown. "
19. Dr Dhawan, appearing for BPSC and Mr Sinha appearing for Dr Yadav asserted that action in the matter of selection of Respondent 3 in Urmila Kumari case [(1993) 1 Pat LJR 226] was of the Commission as a body wherein four members had participated to select Respondent 3 and that selection had not been made by the Chairman, Dr Yadav alone, who was not even present at the time of interview of the two candidates on 9-4-1991, when Respondent 3 was preferred to the writ petitioner for selection. It was pointed out that the Interview Board consisted of three experts, viz., (1) Director of Archives; (2) Dr S. Gopal, Professor of History; and (3) Dr R.B. Choudhary, besides four members of the Commission i.e.: (1) Dr R.S. Singh; (2) Shri Bindeshwari Singh; (3) Shri B. Ram; and (4) Dr S.J. Thakur. The selection of Respondent 3 took place as a result of the deliberations at that interview. A selection list was prepared by the Interview Board and indeed, Dr Yadav, also did sign the final selection list, being the Chairman of the Commission but admittedly he had not participated in the selection process, not being present at the time of the interview where Respondent 3 in that case was selected. The High Court on 11-4-1991 found that the selection had not been fair and proper and the manner in which selection was made by the Commission based on the manner of conducting interview was objectionable. The High Court, accordingly, set aside the appointment of Respondent 3 and directed BPSC to recommend the name of Mrs Urmila Kumari on the basis of substituted marksheet produced by her, subsequently on 11-4-1991. This direction of the High Court was duly complied with by the Commission.
20. A critical analysis of the judgment in Urmila Kumari case [(1993) 1 Pat LJR 226] shows that while the Commission, as a whole, was indicted, no adverse comment of any personal nature had been made by the High Court against the Chairman, Dr Yadav. There is no specific indictment of the Chairman, Dr Yadav, as such. There is no finding that Dr Yadav had in any manner influenced the selection of Respondent 3 in that case. It would be wholly conjectural to hold that merely because Dr Yadav had signed the final selection list as Chairman (which he was obliged to do in discharge of his official duties), he should be deemed to have influenced other members of the Selection Committee including the outside experts. The indictment, even otherwise was of the procedure which was followed by the Commission and not of any action of the Chairman. We are informed that after the judgment in Urmila Kumari case [(1993) 1 Pat LJR 226] the procedure for selection has been modified and corrected. In the absence of any indictment of Dr Yadav, in his personal, official or individual capacity or any other material to show that he had personally influenced the Interview Committee (where he was not even present) to act in a particular manner, it would be unfair to hold that Dr Yadav had committed any misbehaviour in that selection process. We agree with Dr Dhavan that no misfeasance on the part of Dr Yadav has even been remotely established insofar as this charge is concerned."
74. In the case of Kashinath Dikshita v. Union of India, reported in (1986) 3 SCC 229 the apex court observed in para 3,8,9, 10 and 11 as follows:-
3. As many as eight charges, charges of serious nature, were levelled against the appellant who was at the material time holding the post of Superintendent of Police. The appellant was exonerated of all the charges except and save Charges 1 and 2 and Charge 8 partly. The particulars of the charges were set out in the statement of allegations accompanying the charge-sheet [ Dated April 3, 1962] . The appellant challenged the impugned order of dismissal from service in the High Court on a number of grounds. The High Court repelled all the contentions and dismissed the writ petition. It is not necessary to advert to these contentions inasmuch as the controversy has now been narrowed down to one central issue viz. whether there has been violation of principles of natural justice by reason of:
(i) failure to supply copies of the statements of witnesses recorded ex parte at the pre-enquiry stage; and
(ii) the failure to supply copies of the documents on which reliance was placed by the Department to establish the charges before the enquiry commenced.
8. Was there refusal to supply copies?
An examination of the record clearly shows that even though the appellant had in terms demanded copies of the documents and statements in question the disciplinary authority had turned down the request. On December 3, 1963, the appellant had moved the Board for copies of documents and statements in question. In the application made by the appellant, he has made the request in this behalf in the following terms:
1. That he has not so far been supplied with copies of the documents cited in evidence and of the statements made by persons named as witnesses on the eight charges framed against me by the first party vide Annexures I and II to GO No. CR-70/II-A-1962, dated April 3, 1962 from Mukhya Sachiva, Uttar Pradesh.
2. That to prepare himself for cross-examination of the witnesses for rebuttal of prosecution evidence and for adduction of evidence in my defence, the applicant has to make a careful and detailed study of the said documents and statements.
3. That it is only after such a careful study of documents and statements that the applicant shall be able to decide on the names of the witnesses to be examined in my defence and on the nature of documentary evidence to be adduced in defence.
4. xxx Prayer (1) That true copies of all the documents cited in evidence on the eight charges against the applicant be kindly supplied to him as early as possible.
(2) That in the case of each statement the place, date and time of the recording of statement and the name, designation and capacity of the officer recording statement be kindly indicated.
(3) xxx
9. This application was unceremoniously rejected by the Board on December 20, 1963 [p. 139 of the SLP paper-book: Please refer to your Application No. KND/BI-2, dated December 3, 1963 regarding copies of documents and statement cited in evidence. The Board of Inquiry regrets that it is not possible for them to accede to your request since you have already been allowed by government an access to the relevant official records for the purpose of preparing your written statement as provided under sub-rule (4) of Rule 5 of the All India Services (Discipline and Appeal) Rules, 1955.]. It is thus clear that the appellant's request for supply of copies of relevant documents and statements of witnesses has been refused in no unclear terms. We do not consider it necessary to burden the records by quoting the extracts from the letters addressed by the appellant and the reply sent to him. The extracts quoted hereinabove leave no room for doubt that the disciplinary authority refused to furnish to the appellant copies of documents and copies of statements. When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it. It is not even the case of the respondent that there was involved any consideration of security of State or privilege. No doubt the disciplinary authority gave an opportunity to the appellant to inspect the documents and take notes as mentioned earlier. But even in this connection the reasonable request of the appellant to have the relevant portions of the documents extracted with the help of his stenographer was refused. He was told to himself make such notes as he could. This is evident from the following passage extracted from communication dated July 25, 1962 from the disciplinary authority to the appellant:
"The Government has been pleased to allow you to inspect all the documents mentioned in Annexure II to the charge-sheet given to you. While inspecting the documents, you are also allowed to take notes or even prepare copies, if you so like, but you will not be permitted to take a stenographer or any other person to assist you. In case you want copies of any specific documents, from out of those inspected by you, the request will be considered on merits in each case by the government. In case you want to inspect any document, other than those mentioned in Annexure II, you may make a request accordingly, briefly indicating its relevancy to the charge against you, so that orders of the government could be obtained for the same .... As pointed out above, if you wish to have copies of any specific documents, from those inspected by you, your should make a request in writing accordingly, mentioning their relevancy to the charge, so that orders of Government could be obtained.
Government, however, maintains that you are not entitled to ask for copies of documents as a condition precedent to your inspection of the same. I am further to add that in case you do not inspect the documents on the date fixed, you will do so at your own risk."
10. And such a stance was adopted in relation to an inquiry whereat as many as 38 witnesses were examined, and 112 documents running into hundreds of pages were produced to substantiate the charges. In the facts and circumstances of the case we find it impossible to hold that the appellant was afforded reasonable opportunity to meet the charges levelled against him. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental inquiry depends on the facts of each case. We are not prepared to accede to the submission urged on behalf of the respondents that there was no prejudice caused to the appellant, in the facts and circumstances of this case. The appellant in his affidavit [ P. 309 of SLP paper-book] has set out in a tabular form running into twelve pages as to how he has been prejudiced in regard to his defence on account of the non-supply of the copies of the documents. We do not consider it necessary to burden the record by reproducing the said statement. The respondents have not been able to satisfy us that no prejudice was occasioned to the appellant.
11. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for, whether or not there has been a denial to afford a reasonable opportunity in the backdrop of this case must substantially depend upon the facts pertaining to this matter.
75. In the case of State of U.P. v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 the apex court observed in para 27, 28 and 30 as follows-
27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
76. In the case of Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity reported in (2010) 3 SCC 732 the apex court observed in para 40 as follows-
"40. It is a settled legal proposition that not only an administrative but also a judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind." (Vide State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568 : (2008) 2 SCC (Cri) 49 : AIR 2004 SC 1794] and State of Rajasthanv. Sohan Lal [(2004) 5 SCC 573 : (2008) 2 SCC (Cri) 53] )"
77. In the case of E.S Reddi vs Chief secretary, Govt. of A.P. and anothers, reported in 1987 AIR 1550 the apex court has observed in para 6 as follows-
6. In the special leave petition, the only contention of the petitioner E.S. Reddi was that the action of the State Government in making selective suspension suffered from the vice of arbitrariness and offended against Article 14 of the Constitution inasmuch as persons like the applicant T.V. Choudhary who were equally culpable have merely been transferred while he has been singled out and placed under suspension under sub-rule (1) of Rule 13 of the Rules without any rational basis and that such arbitrary action of the State Government was tantamount to denial of equal treatment to persons similarly placed. In view of the subsequent order passed by the State Government on September 6, 1986 placing other officers including the applicant T.V. Choudhary under suspension under Rule 13(1) of the Rules pending their prosecution, the special leave petition has become infructuous. It is accordingly dismissed.
78. Learned counsel for petitioner has vehemently argued that the petitioner was transferred from Ghazipur to Aligarh and he handed over charge on 16.8.99 and was succeeded by Sri Vikram Jeet Singh, who conducted the examination for promotion from class IV employee to class III employee and the roster was amended to reserve the 7th and 14th position for promotion of class IV employees. For the first time on 11.11.1999 Sri Vikram Jeet Singh sent a letter to the then Hon'ble Inspecting Judge, Ghazipur pointing out certain irregularities regarding the conduct of examination of class III employees without enquiring anything. While cancelling the said examination on the request of Sri Vikram Jeet Singh certain observations were made by the Hon'ble Inspecting Judge. The petitioner submitted his explanation regarding the observations made by the Hon'ble Inspecting Judge and the then Hon'ble Chief Justice was pleased to order that the observations need not be entered in the character roll nor be placed in the personal file of the petitioner vide His Lordship's order dated 07.04.2000 and the petitioner was exonerated from the charges regarding the conduct of the examination of class III employees.
Further submission is that strangely on 26.5.2000 the then Inspecting Judge Hon'ble Mr. Justice Palok Basu forwarded a note questioning the order dated 31.3.2000 passed by the then Hon'ble Chief Justice dropping the enquiry on the complaint dated 4.8.98 of Sri Padam Singh Advocate, Etah. It is pertinent to mention here that this note was silent about the conduct of the examination of class-III employees at Ghazipur. The said note dated 26.5.2000 was not approved and the Hon'ble Administrative Committee resolved that no further action need be taken in the matter vide resolution dated 14.7.2000. The then Hon'ble Inspecting Judge i.e. Hon'ble Mr. Justice T.P. Garg and Hon'ble Mr. Justice A.S. Gill who enquired into the allegations of the complaint of Sri Padam Singh challenging the judicial proprietary in allowing three bail applictions and rejecting two bail applications and acquitting accused in one sessions trial and the allegations of the complaint were found unsubstantiated and false, which ultimately resulted in the then Hon'ble Chief Justice dropping the enquiry vide his Lordship's order dated 31.3.2000.
79. It is also argued that it is pertinent to mention here that the petitioner who was less than 58 years of age and question of elevation to the High Court arose and to scuttle this chance Hon'ble Mr. Justice Palok Basu, the then member of the collegium as well as the Hon'ble Administrative Committee of the Hon'ble High Court, again forwarded another note dated 27.2.2001 in which again questioned the proprietary of the then Hon'ble Chief Justice orders dated 31.3.2000 and 7.4.2000 dropping the enquiry and expunging the observations made by the Hon'ble Inspecting Judge, Ghazipur regarding the conduct of the examination.
80. Further submission is that vide resolution dated 27.4.2001 the Hon'ble Administrative Committee was pleased to recall its earlier resolution dated 14.7.2000 and straightway placed the petitioner under suspension and departmental enquiry was ordered even without holding a preliminary/formal enquiry and without any prima facie evidence.
81. Per contra, in support of his submissions, learned counsel for respondent have also relied upon the decision of Hon'ble Apex Court in the case of Bank of India v. Degala Suryanarayana, reported in (1999) 5 SCC 762 the apex court has observed in para 11 as follows-
11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel [AIR 1964 SC 364 : (1964) 4 SCR 718] the Constitution Bench has held:
"The High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."
82. In the case of Mihir Kumar Hazara Choudhury v. LIC, reported in (2017) 9 SCC 404 the apex court has observed in para 30 as follows-
30. As held supra, the departmental proceedings were conducted strictly in accordance with law by following the principle of natural justice in which the appellant duly participated. The appellant neither set up any defence nor denied the factum of charges, yet the respondent proved the charges with the aid of relevant evidence, which found acceptance with the Division Bench and this Court too. As an appellate court, neither we can sit over the findings of the enquiry officer and find fault in it nor can we reappreciate the evidence of witnesses examined in departmental enquiry.
83. In the case of ECIL v. B. Karunakar, reported in (1993) 4 SCC 727 the apex court has observed in para 30 (v) as follows-
30.(i) ......................
(ii) ........................
(iii) .........................
(iv) ..........................
(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
84. In the case of State Bank of Patiala v. S.K. Sharma, reported in (1996) 3 SCC 364 the apex court has observed in para 33 as follows-
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench inB. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] . The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it ''void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/ Tribunal/ Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
85. In the case of Haryana Financial Corpn. v. Kailash Chandra Ahuja, reported in (2008) 9 SCC 31 the apex court has observed in para 21 to 43 as follows-
21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.
22. In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of the inquiry officer was not supplied to the delinquent writ petitioner. While the contention of the writ petitioner is that since failure to supply the inquiry officer's report had resulted in violation of natural justice and the order was, therefore, liable to be quashed, the submission on behalf of the Corporation is that no material whatsoever has been placed nor is a finding recorded by the High Court that failure to supply the inquiry officer's report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed.
23. The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was "no whisper" in the writ petition showing any prejudice to the delinquent as required by B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is "writ large".
24. In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar[(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] that prejudice should be shown by the delinquent. To repeat, in B. Karunakar[(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , this Court stated: (SCC p. 757, para 30) "30. (v) ... Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case."
25. It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem (hear the other side). But it is equally well settled that the concept of "natural justice" is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the straitjacket of a rigid formula.
26. Before about six decades, in Russell v. Duke of Norfolk [(1949) 1 All ER 109 : 65 TLR 225 (CA)] , Tucker, L.J. stated: (All ER p. 118 D-E) "... There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."
27. In the oft quoted passage from Byrne v. Kinematograph Renters Society Ltd. [(1958) 1 WLR 762 : (1958) 2 All ER 579] , Lord Harman enunciated: (All ER p. 599 D-E) "What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."
(emphasis supplied)
28. This Court has also taken similar view. In Union of India v. P.K. Roy [AIR 1968 SC 850 : (1968) 2 SCR 186] , speaking for the Court, Ramaswami, J. observed: (AIR p. 858, para 11) "11. ... the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case."
29. In the leading case of A.K. Kraipak v. Union of India [(1969) 2 SCC 262] , Hegde, J. stated: (SCC pp. 272-73, para 20) "20. ... What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
30. Again, in R.S. Dass v. Union of India [1986 Supp SCC 617 : (1987) 2 ATC 628], this Court said: (SCC p. 635, para 25) "25. It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case."
31. At the same time, however, effect of violation of the rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalised, can it not be argued that "notice would have served no purpose" or "hearing could not have made difference" or "the person could not have offered any defence whatsoever". In this connection, it is interesting to note that under the English law, it was held few years before that non-compliance with principles of natural justice would make the order null and void and no further inquiry was necessary.
32. In the celebrated decision of Ridge v. Baldwin [1964 AC 40 : (1963) 2 WLR 935 : (1963) 2 All ER 66 (HL)] it was contended that an opportunity of hearing to the delinquent would have served no purpose. Negativing the contention, however, Lord Reid stated: (All ER p. 73 F-G) "It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse."
(emphasis supplied)
33. Wade and Forsyth in their classic work, Administrative Law, (9th Edn.) pp. 506-09 also stated that if such argument is upheld, the Judges may be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. "But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwisethe merits may be prejudiced unfairly."
(emphasis supplied)
34. This Court expressed the same opinion. In Board of High School & Intermediate Education v. Chitra Srivastava [(1970) 1 SCC 121] , the Board cancelled the examination of the petitioner who had actually appeared at the examination on the ground that there was shortage in attendance at lectures. Admittedly, no notice was given to her before taking the action. On behalf of the Board it was contended that the facts were not in dispute and therefore, "no useful purpose would have been served" by giving a show-cause notice to the petitioner. This Court, however, set aside the decision of the Board, holding that the Board was acting in a quasi-judicial capacity and, therefore, it ought to have observed the principles of natural justice.
35. In S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] , rejecting the argument that observance of natural justice would have made no difference, this Court said: (SCC p. 395, para 24) "24. ... The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
(emphasis supplied)
36. The recent trend, however, is of "prejudice". Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.
37. In Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , Lord Reid said: (All ER p. 1283a-b) "... it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer."
(emphasis supplied) Lord Guest agreed with the above statement, went further and stated: (All ER p. 1291b-c) "... A great many arguments might have been put forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant a hearing, nor can I see that he was prejudiced in any way.
(emphasis supplied)
38. In Jankinath Sarangi v. State of Orissa [(1969) 3 SCC 392] it was contended that natural justice was violated inasmuch as the petitioner was not allowed to lead evidence and the material gathered behind his back was used in determining his guilt. Dealing with the contention, the Court stated: (SCC p. 394, para 5) "5. ... We have to look to what actual prejudice has been causedto a person by the supposed denial to him of a particular right."
(emphasis supplied)
39. In B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] this Court considered several cases and held that it was only if the court/tribunal finds that the furnishing of the report "would have made a difference" to the result in the case that it should set aside the order of punishment. The law laid down in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] was reiterated and followed in subsequent cases also (vide State Bank of Patiala v.S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717], M.C. Mehta v.Union of India [(1999) 6 SCC 237] ).
40. In Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2000 SCC (L&S) 965] the relevant rule provided automatic termination of service of an employee on unauthorised absence for certain period. M remained absent for more than five years and, hence, the post was deemed to have been vacated by him. M challenged the order being violative of natural justice as no opportunity of hearing was afforded before taking the action. Though the Court held that the rules of natural justice were violated, it refused to set aside the order on the ground that no prejudice was caused to M. Referring to several cases, considering the theory of "useless" or "empty" formality and noting "admitted or undisputed" facts, the Court held that the only conclusion which could be drawn was that had M been given a notice, it "would not have made any difference" and, hence, no prejudice had been caused to M.
41. In Ajit Kumar Nag v. Indian Oil Corpn. Ltd. [(2005) 7 SCC 764 : 2005 SCC (L&S) 1020] , speaking for a three-Judge Bench, one of us (C.K. Thakker, J.) stated: (SCC pp. 785-86, para 44) "44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge [(1723) 1 Str 557 : 93 ER 698] .) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: '' "To do a great right" after all, it is permissible sometimes "to do a little wrong".' [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India [(1990) 1 SCC 613] (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than ''precedential'."
(emphasis supplied)
42. Recently, in P.D. Agrawal v. SBI [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43] this Court restated the principles of natural justice and indicated that they are flexible and in the recent times, they had undergone a "sea change". If there is no prejudice to the employee, an action cannot be set aside merely on the ground that no hearing was afforded before taking a decision by the authority.
43. In Ranjit Singh v. Union of India [(2006) 4 SCC 153 : 2006 SCC (L&S) 631] , referring to the relevant case law, this Court said: (SCC pp. 160-61, para 22) "22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the disciplinary authority. He was also required to apply his mind to the materials on record. The enquiry officer arrived at findings which were in favour of the appellant. Such findings were required (sic sought) to be overturned by the disciplinary authority. It is in that view of the matter, the power sought to be exercised by the disciplinary authority, although not as that of an appellate authority, but is akin thereto. The inquiry report was in favour of the appellant but the disciplinary authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in the absence of any show cause filed by the appellant, to analyse the materials on record afresh. It was all the more necessary because even CBI, after a thorough investigation in the matter, did not find any case against the appellant and thus, filed a closure report. It is, therefore, not a case where the appellant was exonerated by a criminal court after a full-fledged trial by giving benefit of doubt. It was also not a case where the appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial i.e. proof beyond all reasonable doubt. When a final form was filed in favour of the appellant, CBI even did not find a prima facie case against him. The disciplinary authority in the aforementioned peculiar situation was obligated to apply its mind on the materials brought on record by the parties in the light of the findings arrived at by the inquiry officer. It should not have relied only on the reasons disclosed by him in his show-cause notice which, it will bear repetition to state, was only tentative in nature. As the appellate authority in arriving at its finding, laid emphasis on the fact that the appellant has not filed any objection to the show-cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hand appears to be an exceptional one as the appellant was exonerated by the inquiry officer. He filed a show cause but, albeit after some time the said cause was available with the disciplinary authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show cause as he did not leave his office by then. The expression ''communication' in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. (See State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313] .)"
86. In the case of Kedar Shashikant Deshpande v. Bhor Municipal Council, reported in (2011) 2 SCC 654 the apex court has observed in para 23 and 29 as follows-
23. In the present case also Section 7 lays down that the Collector has to decide the question of disqualification on a reference made to him. The reference will have to be regarded as one of the modes of bringing the relevant information to the notice of the Collector. Sections 3(1)(a) and 3(1)(b) operate on their own force and the moment the conditions prescribed therein are satisfied, a corporator stands disqualified. The reference to be made to the competent authority is only for the purpose of bringing to the notice of the competent authority the relevant information about the disqualification. Section 7 of the Act does not contemplate a lis between the two private parties in a disqualification petition. It may be filed for a limited purpose of bringing relevant information to the notice of the Collector who is duty-bound to decide the petition in accordance with law.
29. It is well settled that if a person has submitted to the jurisdiction of the authority, he cannot challenge the proceedings, on the ground of lack of jurisdiction of the said authority in further appellate proceedings. Had this plea, been raised before the Additional Collector, the respondents would have got the opportunity to place on record notification issued under the provisions of the Maharashtra Land Revenue Code, 1966 to establish that the Additional Collector was delegated the powers of the Collector and was competent to decide the disqualification petition.
87. The Division Bench of this Court in the case of Ali Ahmad Samdani vs State Of U.P. and others, passed in W.P. No. 470 (S.B) of 2000 has observed as under:-
".......Before proceeding further, we would like to mention that in the writ petition, the petitioner had taken a plea that there was no occasion for the High Court to have withdrawn the inquiry proceedings through an administrative decision of the Administrative Committee and to entrust it to a new Inquiry Officer. In this regard, we would like to mention that the High Court took a decision to alter the Inquiry Officer under a resolution of the Administrative Committee taken in the year 1995 and the same was not assailed by the petitioner in any forum. It may be added that it is not only the petitioner whose inquiry was recalled and entrusted to another Officer but there were ten officers in all whose departmental inquiry was recalled from the Administrative Tribunal. Thus the petitioner had acquiesced and submitted to the jurisdiction of the High Court in the inquiry through a new Inquiry Officer. It is settled law that the plea which is not raised at the first instance cannot be raised at a belated stage and we are unable to accept the assertion treating the inquiry proceedings to have been vitiated. Our above view is fortified by the decision of the Apex Court rendered in the case of Kedar Shashikant Deshpande vs. Bhor Municipal Council; 2011(2) SCC 654, wherein it was held that if a person has submitted to the jurisdiction of the authority, he cannot challenge the proceedings, on the ground of lack of jurisdiction of the said authority in further proceedings."
88. In the case of C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, reported in (1995) 5 SCC 457 the apex court has observed in para 21 to 23 as follows-
Duty of the Judge to maintain high standard of conduct. Its judicial individualism -- Whether protection imperative?
21. Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society.
22. In Krishna Swami v. Union of India [(1992) 4 SCC 605] (SCC at pp. 650-51) one of us (K. Ramaswamy, J.) held that the holder of office of the Judge of the Supreme Court or the High Court should, therefore, be above the conduct of ordinary mortals in the society. The standards of judicial behaviour, both on and off the Bench, are normally high. There cannot, however, be any fixed or set principles, but an unwritten code of conduct of well-established traditions is the guidelines for judicial conduct. The conduct that tends to undermine the public confidence in the character, integrity or impartiality of the Judge must be eschewed. It is expected of him to voluntarily set forth wholesome standards of conduct reaffirming fitness to higher responsibilities.
23. To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.
89. In the case of Nawal Singh v. State of U.P., reported in (2003) 8 SCC 117 the apex court has observed in para 2 as follows-
2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority.
90. Learned counsel for respondents have argued that vigilance enquiry no. 18/1998 was initiated on the basis of complaint made by Sri Padam Singh, Advocate Etah where the petitioner was posted as District Judge. Therefore, there is relevancy of this vigilance inquiry having been dropped by the Hon'ble Chief Justice regarding this complaint only. The Enquiry Judge vide his report dated 04.05.2005 has found charge no. 1 to 4 proved against the petitioner, except the charge of illegal gratification. It is further submitted that Sri Padam Singh, Advocate Etah did not cooperate the Hon'ble Enquiry Judge and he did not appear during the course of departmental enquiry initiated against the petitioner.
91. Enquiry Judge has passed order dated 03.09.2002 in this regard, which is reproduced as under:-
"I had summoned Sri Padam Singh, former President of Bar, District Etah for his deposition, on his complaint, on 27.07.2002, for his appearance on 17.08.2002 before me. On that date, a fax message was received from his that he cannot come due to his in-disposition and some other date be given. Though it was not specifically mentioned in the fax message, but it was interpreted like that. Again on 19.08.2002 he was directed to appear before me on 03.09.2002. These notices were addressed to him at the High Court Madhyam Pradesh, Gwalior Bench, where he is presently posted as Additional Government Advocate. Presently no message has been received from him. It can safely be presumed that the notices must have been received by him, since the earlier notice at the above said address was received by him. From, the absence of any response from him for his appearance it can safely be presumed that he is not willing to turn up and depose.
In the circumstances, I find it in-expedient to summon him any further. It will dilate the enquiry further. The enquiry has already been dilated. There was an order from the Apex Court for its expeditious disposal.
In view of these facts and circumstances this witness is hereby discharged.
The enquiry shall again be taken up on 09.09.2002 at 4:00 p.m. for defence. The charged officer may; on that date file documentary evidence or may produce any of his witnesses. If he is inclined to produce any witness. He will provide a list of it to the Presenting Officer before hand."
92. Therefore, Enquiry Judge has summoned Sri Padam Singh, Former President of Bar Association, Etah for his deposition on his complaint made against the petitioner. He was discharged vide order dated 03.09.2002. Since Sri Padam Singh, Advocate Etah did not appear before the Enquiry Judge during the course of departmental proceedings, hence charge no. 5 to 10 could not be proved by the Presenting Officer and these charges were related to the work and conduct of the petitioner relating to the Judgeship, Etah. Therefore, it had no relevance to the charges nos. 1 to 4, which were framed against the petitioner regarding recruitment of Class III employees at Judgeship Ghazipur. There is no substance in the arguments of learned counsel for petitioner that previously vigilance enquiry no. 18/1998 was dropped by Hon'ble the Chief Justice vide order dated 31.3.2000 and note dated 26.5.2000 of Hon'ble Inspecting Judge Hon'ble Mr. Justice Palok Basu was considered by Hon'ble Acting Chief Justice and Hon'ble Administrative Committee resolved in its meeting held on 14.7.2000 that no action need to be taken in the matter.
93. It is pertinent to mention here that the Inspecting Judge Hon'ble Mr. Justice Palok Basu at the point of time of recording 'Annual Confidential Remark' of the petitioner called for the record of recruitment/appointment of Class-III and Class-IV employees of Judgeship Ghazipur and prepared note dated 27.2.2001 after perusal of record, which reads as under:-
"The earlier Vigilance enquiry was dropped by Hon'ble C.J. without the matter going to A.C.
In the instant matter regarding Hon'ble I.J's. strictures a representation in the nature of explanation was placed before the Hon'ble C.J. and that too has been allowed without the matter being taken to A.C.
The file of the officer concerned was not placed within a reasonable time before the undersigned. In spite of reminder of the undersigned through P.A.'s letter-dated 16.10.2000, the record has been forwarded only in Mid December, 2000.
The humble opinion of the undersigned is that both the matters should have one to the A.C.
The entire record is required to be placed before your lordship at the earliest convenience."
94. This note was considered by Hon'ble Administrative Committee in its meeting held on 27.4.2001. The petitioner was placed under suspension and charge sheet dated 26.09.2001 was served upon the petitioner on 8.10.2001.
95. Resolution dated 27.4.2001 was passed by Administrative Committee is reproduced as under:-
Agenda Resolution
10. Re: Sri R.P. Singh, the then District Judge, Ghazipur now Chairman, Administrative Tribunal-III and Member, Administrative Tribunal-I, Lucknow Consideration of note dated 27.2.2001 of Hon'ble Mr .Justice Palok Basu, the then Inspecting Judge, Ghazipur on the margin of the note dated 17.11.2000 of J. R. (I) regarding explanation/ representation against the observation dated 8.12.1999 passed by the then Hon'ble Inspecting Judge, Ghazipur in the matter of Recruitment of Class III Employees and Stenographers in Ghazipur Judgeship and Vigilance Enquiry dropped by Hon'ble the Chief Justice.
10. Regarding Sri R.P. Singh, the then District judge, Ghazipur now Chairman, Administrative Tribunal-III and Member, Administrative Tribunal-I, Lucknow, considered the note dated 27.2.2001 of Hon'ble Mr. Justice Palok Basu, the then Inspecting Judge, Ghazipur on the marging of the note dated 17.11.2000 of J.R. (I) regarding explanation/ representation against the observation dated 8.12.1999 passed by the then Hon'ble Inspecting judge, Ghazipur in the matter of Recruitment of Class III Employees and Stenographers in Ghazipur Judgeship and Vigilance Enquiry dropped by Hon'ble the Chief Justice.
Resolved that in view of other materials placed on record, the previous decision of the Administrative Committee dated 14.7.2000 is recalled and necessary departmental inquiry proceedings be initiated against the officer on the basis of the materials. Hon'ble Mr. Justice B.K. Roy is nominated for the purpose.
Further resolved that the officer be placed under suspension pending the departmental enquiry. He shall get the subsistence allowance admissible as per the rules. He be attached with the District Judge, Lucknow and during the period of suspension, he shall not leave the headquarter without permission of the District Judge.
96. Therefore, it cannot be said that the Inspecting Judge of Judgeship Ghazipur Hon'ble Mr. Justice Palok Basu was prejudiced or having malice against the petitioner being member of Administrative Committee and chance of elevation of the petitioner was scuttled. The vigilance enquiry in the matter of Etah Judgeship, was initiated against the petitioner on the basis of complaint made by Sri Padam Singh, Advocate Etah cannot be mingled with the matter of recruitment/appointment of Class-III of Judgeship Ghazipur. Hon'ble Administrative Committee considered the matter again and vide resolution dated 27.4.2001, departmental proceedings were initiated against the petitioner for the first time in matter of recruitment of Ghazipur Judgeship and the petitioner was placed under supsension after recalling earlier resolution dated 14.7.2000. There is no substance in the argument of learned counsel for the petitioner in this regard.
97. Learned counsel for petitioner has further argued that Sri Vikram Jeet Singh, successor of the petitioner was acting under dictates of the then Inspecting Judge Hon'ble Mr. Justice Palok Basu and Sri Vikram Jeet Singh sent several contradictory and inconsistent reports to O.S.D. (Enquiries and Litigation) for supplying the material for framing the charges. In the meantime Writ Petition (C) No. 263 of 2001 was instituted by the petitioner before the Hon'ble Supreme Court and during its pendency charge memo containing ten charges was served. The petitioner submitted his written statement within six days of disposal of the above writ petition on 29.11.2001 and on the representation of the petitioner the suspension was revoked. The enquiry was concluded on 17.12.2002 and enquiry report was served on 12.09.2005.
98. It is further argued that the Hon'ble Enquiry Judge categorically held in the enquiry report that the charge no. 5 to 10 regarding the complaint of Sri Padam Singh, Advocate Etah were not found proved. Hon'ble the enquiry Judge further held in his report on Charge nos. 1 to 4 that charge of illegal gratification was also not found proved against the petitioner. The said conclusion establishes the bonafide of the petitioner and in absence of any motive attributing misconduct to the petitioner in conducting the examination is highly improper and beyond comprehension.
99. It is also argued that the petitioner submitted his comments/representation on the aforesaid enquiry report to the Hon'ble High Court. The said comments made by the petitioner have been completely ignored by the respondents and the impugned order of the punishment has been passed. The said order is totally contrary to the facts and circumstances of the case. It is illegal, perverse, arbitrary and unreasonable. The impugned order is in violation of principles of natural justice as even the copies of the documents demanded by the petitioner were not supplied to him inspite of repeated requests and no opportunity was given to him to place his arguments with the assistance of defence assistant.
100. Learned counsel for petitioner has vehemently argued that it is pertinent to mention here that being satisfied by the explanation to the observations made by the then Inspecting Judge, Ghazipur in regard to the conduct of the examination it was decided by Hon'ble the Chief Justice that these observations need not be entered in the character roll of the petitioner nor be placed in his personal file and exonerated the petitioner in the matter relating to the conduct of the examination.
101. It is mentioned by learned counsel for petitioner that the enquiry proceedings were not concluded expeditiously as directed by the Hon'ble Apex Court and has greatly prejudiced the petitioner as his chance of elevation was scuttled. The impugned order of punishment has also caused great hardship to the petitioner and the same is liable to be quashed.
102. We have perused letter dated 13.1.2000 (Annexure No. CA-15) written by the then Registrar General Sri S.S. Kulshreshta pertainiing to recruitment in question. It is mentioned in this letter that result of examination dated 4.7.1999 held for the post of Class III employees at Judgeship Ghazipur, was placed before the then Inspecting Judge Hon'ble Mr. Justice Ikramul Bari and His Lordship was pleased to cancel the said examination making observation against the petitioner.
103. Sri Vikram Jeet Singh the then District Judge wrote letter dated 11.11.1999 to Inspecting Judge, Ghazipur Judgeship mentioning the reasons which are reproduced as under:-
"(i) There are numerous complaints against the said examination and proposed recruitment. Some complaints received here have already been handed over by me to your Lordship. The complaints are of very serious nature and some of them are not ignorable.
(ii) It appears that the things were done in a great hurry. Process continued by my learned predecessor despite the fact that he was under the orders of his transfer. Even most of the appointment letters were issued by him on the day he handed over charge on his transfer to Aligarh. Haste does not appear to be insignificant.
(iii) There have been large number of Writ Petition in the Hon'ble High Court against the said examination and the Judgeship has been dragged in uncalled for litigations involving wastage of time and energy.
(iv) It is most important to note that there are 28 courts, only 13 courts are functioning, whereas 15 Courts are lying vacant. The staff already available in the Judgeship is most sufficient for the purposes of all working courts including 3 Courts which are going to be presided over by the officers soon-after they complete their training in this very month. In such a circumstance if 21 persons are recruited in Class-III cadre, they will be surplus for the present and they will have to be given salary without any work even to the least. Presently the Government Policy is that unnecessary expenses should be cut off. The aforesaid recruitment if done, will be best example of unnecessary expenses on the exchequer and this can easily be avoided by cancelling the examination and the recruitment.
(v) There appears no hope of non-functional courts to become functional in the near future Submitted for your Lordship's consideration and necessary orders."
104. The petitioner was afforded opportunity to explain the observations made by Hon'ble Inspecting Judge, Ghazipur. Explanation dated 13.3.2000 was considered by this Court and the observations made by Hon'ble Inspecting Judge was not entered in the character roll of the petitioner and were not placed in his personal file. Therefore, proper opportunity was given to the petitioner regarding observations made by the then Inspecting Judge Hon'ble Mr. Justice Ikramul Bari. Afterwards Hon'ble Administrative Committee has considered note of Hon'ble Mr. Justice Palok Basu, the then Inspecting Judge, Ghazipur Judgeship and a departmental enquiry was initiated against the petitioner vide resolution dated 27.4.2001. Therefore, it cannot be inferred that Hon'ble Mr. Justice Ikramul Bari or Hon'ble Mr. Justice Palok Basu were having any malice against the petitioner or they were prejudiced for any reason.
105. It is also relevant to mention here that Sri Vikram Jeet Singh the then District Judge, Ghazipur wrote a letter dated 11.11.1999 after receiving numerous complaints regarding the said examination and recruitment. The result of the said examination held on 4.7.1999 was placed before the then Inspecting Judge and his Lordship cancelled this examination. Hon'ble Mr. Justice Palok Basu perused file of recruitment conducted at Judgeship Ghazipur at the point of time of recording 'Annual Confidential Remarks' of the petitioner and prepared note, which was considered by Hon'ble Administrative Committee and departmental proceedings was initiated against the petitioner. The letter dated 11.11.1999 was considered by the then Inspecting Judge, Ghazipur and the examination held on 4.7.1999 was cancelled by the then Inspecting Judge Hon'ble Mr. Justice Ikramul Bari vide order dated 8.12.1999.
106. The respondents in their counter affidavit have specifically mentioned in paragraph no. 62 that letters dated 20.12.1999, 16.10.1999 and 11.01.2000 written by Sri Vikram Jeet Singh are not traceable on the available record. The respondents have provided copies of order dated 17.01.2001 and letters dated 5.11.1999 and 3.11.2000 of Sri Vikram Jeet Singh as Annexure No. CA-21, CA-22 and CA-23. The respondents have also brought on record copies of letters dated 8.5.2001 and 16.8.2001 in compliance of Court's order dated 1.8.2001. These correspondences have been brought on record as Annexure Nos. CA-24, CA-25, CA26 and CA-27.
107. We have perused these letters. Sri Vikram Jeet Singh has furnished information called for by this Court vide letter dated 29.9.2000 and 1.8.2001. Sri Vikram Jeet Singh sent his report vide letter dated 3.11.2000 regarding complaint forwarded by Sri Kaulesh Agnihotri and others of Ghazipur and Sri Kuldeep Narain Rai, litigant of Ghazipur, which were made against the petitioner. Therefore, it cannot be said or termed that Sri Vikram Jeet Singh the then District Judge Ghazipur was taking action under dictates of the then Inspecting Judges.
It is pertinent to mention here that a reference of letter dated 5.11.1999 written by Sri Vikram Jeet Singh is mentioned in observation dated 8.12.1999 passed by the then Inspecting Judge Hon'ble Mr. Justice Ikramul Bari. It is mentioned that vide letter dated 5.11.1999 Sri Vikram Jeet Singh furnished information in response to queries made by this Court vide note dated 25.10.1999 of the Inspecting judge. A detailed note/observation has been recorded by the Inspecting Judge on 8.12.1999, excerpts of which reads as under:-
"As has been reported by the District Judge in his letter dated 11.11.1999 there is a large number of complaints alleging manipulations in the results by Sri R.P. Singh, the then District Judge Ghazipur and demand and receipt of consideration for selecting a particular candidate. It is true that many of such complaints were directly received by me and were endorsed to the Registrar.
It is also a fact that only 13 out of 28 Courts are presently functioning in the Ghazipur judgeship and therefore, the staff already available in the judgeship is sufficient to meet the exigencies, in case additional appointments are made, it would create surplus man power leading to complications and wastage of government money. The Judge be advised accordingly enclosing a copy of these notes with promptness.
Sri R.P. Singh, was under transfer when the result of the examination was announced on 11.8.1999 and appointment letters to ten of the candidates were issued. Out of whom, only three were allowed to join by him on 13.8.1999. He had prepared a second roster on 16.8.1999 and had issued appointment orders to eleven other candidates. He had handed over charge on 16.8.1999 to join at Aligarh.
The selection list reveals that at the second, third, fourth fifth, sixth, eight, tenth, twelve, theirteen, fourteen serial numbers, the candidates were Yadavs. Thereafter there is no Yadav candidate in the list till serial no. 38. At serial nos. 39 and 43, two more names indicating the caste as Yadav are listed. This casts suspicion.
Since the vacancies were not properly ascertained the candidates found fit for the post of Clerk and Paid Apprentices only were empanelled against the posts of stenographers also, the list of the selected candidates smacks of manipulation, there is no immediate need for additional staff and there are serious allegations of manipulations and corruption against Sri R.P. Singh the then District Judge, Ghazipur; it is undesirable that the select list prepared be retained and the appointment orders issued or honoured. The District Judge is the appointing authority and may take his decision in the light of the above information. He is at liberty to cancel the select list and the appointment letters already issued and to terminate the services of those appointees from the selected list who have already joined taking into consideration the urgency in the matter.
The District Judge be advised accordingly enclosing a copy of this note promptly."
108. It is found that there were serious allegations of manipulations and corruption against petitioner Sri R.P. Singh, the then District Judge, Ghazipur. Therefore, it was found that it is undesirable that the prepared select list is retained and the appointment orders issued or honoured. It was also observed by the Inspecting Judge that the District judge is the competent authority and may take his decision in the light of above information. He is at liberty to cancel the select list and the appointment letters already issued and to terminate the services of those appointees from the select list, who have already joined taking into consideration the urgency in the matter.
109. On the basis of observations made by Hon'ble Inspecting Judge, Ghazipur vide order dated 8.12.1999 Sri Vikram Jeet Singh cancelled the recruitment/examination vide his order dated 17.1.2000. Hence Sri Vikram Jeet Singh the then District Judge acted upon the complaints forwarded by Sri Kaulesh Agnihotri and others of Ghazipur and complaint of Sri Kuldeep Narain Rai, litigant of Ghazipur. Therefore, it cannot be inferred that Sri Vikram Jeet Singh the then District Judge, Ghazipur, who was successor of the petitioner, was also having any malice against the petitioner or he had acted upon the dictates of the then Inspecting Judges. There is no substance in the argument putforth by learned counsel for petitioner.
110. We have perused letter dated 5.11.1999 (Annexure No. CA-12) written by Sri Vikram Jeet Singh wherein information were furnished in compliance of D.O. No. NIL dated 5.11.1999, which was sent by fax at 12:56 p.m. The Registrar General vide letter dated 29.9.2000 called for comments of the then District Judge, Ghazipur Sri Vikram Jeet Singh regarding complaint of Sri Kaulesh Agnihotri and others and Sri Kuldeep Narain Rai. Annexure No. CA-23 letter dated 3.11.2000 was containing information regarding complaint made by Sri Kaulesh Agnihotri and others and Sri Kuldeep Narain Rai. It is specifically mentioned in this letter as under:-
"So far as the allegations that my learned predecessor indulged in corruption and took money through Amin and that the select list was the result of corruption, and that the relatives of Amin were unduly appointed etc. etc., and that there had been serious bungling in the examination are concerned, I have no personal knowledge about the same. Only an inquiry if thought fit by the Hon'ble Court, can reveal the facts and I am not in a position to make any comments regarding the same.
Sri R.P. Singh was my learned predecessor. I did not do any inquiry into the allegations against my predecessor District Judge nor I think that I can do so.
Submitted for kind perusal of the Hon'ble Court."
111. Sri Vikram Jeet Singh, the then District Judge, Ghazipur in his letter dated 8.5.2001 (Annexure No. CA-24) has furnished information as under:-
"That for convenience to understand the above, names, castes, role numbers and marks obtained by each of the candidates. The positions which the candidates ought to have been allotted according to marks obtained by them and the positions which have been wrongly given by my learned predecessor irrespective of the marks obtained also have been shown by me in the said Annexure-III.
That in this way the marks sheet was ignored and the select list was prepared by my learned predecessor in accordance with his own choice ignoring actual outcome of the examination and the marks sheet.
I felt bound to report this matter because it has come to light only after I had an occasion to peuse the marks sheet while complying with the above noted orders of the Hon'ble Hight Court and the matter has already been brought to he Hon'ble High Court in the said writ petition through a supplementary affidavit as desired by the Hon'ble High Court.
Submitted for kind perusal of the Hon'ble Court."
112. We have also perused Annexure No. CA-25 letter dated 30.7.2001 written by O.S.D. (Enquiry), High Court, Allahabad, which was complied with by Sri Vikram Jeet Singh vide letter dated 1.8.2001 (Annexure No. CA-26) whereby detailed information for preparation of draft charge sheet during the course of departmental enquiry initiated against the petitioner was furnished. Likewise letter dated 16.8.2001 (Annexure No. CA-27) was written by Sri Vikram Jeet Singh to O.S.D. (Enquiry) in compliance of his letter No. NIL dated 1.8.2001 and furnished detailed required information. Therefore, it cannot be said or inferred that Sri Vikram Jeet Singh on his own proceeded to cancel the recruitment/examination dated 4.7.1999. On the other hand, he acted upon the complaint received by him or information called for by this Court on the complaint received by this Court.
113. We have perused inquiry report dated 04.05.2005 submitted by Hon'ble Inquiry Judge.
114. During the course of inquiry following charges were framed against the petitioner:
"Charge No.01:
That you during the year 1999, while posted as District Judge Ghazipur, advertised 21 posts for the recruitment of Class III employees and Stenographers and got the examination conducted on 04.07.1999 and got select list prepared by the examination Committee constituted by you of 48 candidates and approved it on 11.8.99, arbitrarily and in flagrant violation of rule and regulations and G.O., such as departmental examination of class IV employees to be promoted in class III cadre was not done before the recruitment nor vacancies reserved for it, no person qualified for the post of Stenographers even then you made selection of 48 class III employees including 9 posts of Stenographers, issued appointment letters to all 21 candidates and most of the appointment letters were issued by you on 16.8.99, the date on which you handed-over charge of your office due to transfer to Aligarh, recruited the persons of O.B.C. category exceeding their quota not on merits, but with the help of cuttings, overwriting, and interpolation in Answer Scripts and without ascertaining the suitability of the candidates for extraneous considerations. And you thereby failed to maintain absolute integrity and complete devotion to duty and thus committed misconduct within the meaning of rule 3 of the U.P. Government Servants Conduct Rules 1956.
Charge No.02:
That you during the year 1999, while posted as District Judge, Ghazipur, got the examination conducted for recruitment of 21 class III employees and Stenographers on 4.7.99 which result was declared on 11.8.99 and select list of 48 candidates was approved by you as District Judge/Appointing Authority, District Court, Ghazipur on 11.8.99, arbitrarily and against rules, regulations and by cuttings, overwritings and interpolations in the answers scripts of written test of th candidates S/Sri Prabhakar Mishra roll no. 2357 (Code No. BD 28), Brajesh Kumar Singh, role no. 886 (Code no. GH 396), Mohd. Jalaluddin Akbar Siddiqui, role no. 1521 (Code no. PR 256), Neeraj Kumar Mishra, roll no. 2109 (Code no. OP 449), and Vijay Kumar Srivastava, role no. 4293 (Code no. GR 242), after accepting illegal gratification running from Rs. 2,00,000/- to 3,00,000/- from each candidate through Civil Court Ghazipur Amin S/Sri Rajendra Yadav and Ram Awautar Yadav. And you thereby failed to maintain absolute integrity and complete devotion to duty and thus committed misconduct within the meaning of rule 3 of the U.P.Government Servants Conduct Rules 1956.
Charge No.03:
That you during the year 1999, while posted as District Judge, Ghazipur, got the examination conducted for recruitment of 21 class III employees and Stenographers on 4.7.99 which result was declared on 11.8.99 and select list of 48 candidates was approved by you as District Judge/Appointing Authority, District Court, Ghazipur on 11.8.99, arbitrarily and against rules, regulations and G.O. of the State Government by cuttings, overwritings and interpolations in G.K. Answer scripts of S/Sri Arvind Singh Gautam, roll no. 746 (Code no. GH 281), Mohd. Jalaluddin Akbar Siddiqui, roll no. 1521 (Code no. PR 256), Raj Kumar, roll no. 2700 (Code no. CD 165), Govind Ram, roll no. 1305 (Code no. PR 76), Hari Shankar Singh Yadav, roll no. 1389 (Code No. PR 149), Amar Jeet Yadav, roll no. 477 (Code no. GH 71), Roll No. 4293 (Code no. GR 242), roll no. 4081 (Code no. GR 80), Rajesh Kumar Yadav, roll no. 2974 (Code no. CD 390), Rajesh Kumar, roll no. 2451 (Code no. BD 104), Sunil Kumar roll no.3278 (Code no. CD 632) and Dinesh Kumar roll no.1160 (Code no.GH 610) after accepting illegal gratification running from Rs. 2,00,000/- to 3,00,000/- from each candidate through Civil Court Ghazipur Amins S/Sri Rajendra Yadav and Ram Awatar Yadav And you thereby failed to maintain absolute integrity and complete devotion to duty and thus committed misconduct within the meaning of rule 3 of the U.P.Government Servants Conduct Rule 1956.
Charge No.4:
That you during the year 1999, while posted as District Judge, Ghazipur, got the examination conducted for recruitment of 21 class III employees and Stenographers on 4.7.99 which result was declared on 11.8.99 and select list of 48 candidates was approved by you as District Judge/Appointing Authority, District Court, Ghazipur on 11.8.99, arbitrarily and against rules, regulations and G.O. of the State Government and permitted the candidate Sri Dinesh Kumar with roll no. 1160 (Code no. GH 610) to adopt unfair means such as answer book of written test started in one hand writing and completed in another hand writing as a whole and his G.K. answer book (Code no. GH 610) also shows different hand writings for extraneous considerations. And you thereby failed to maintain absolute integrity and complete devotion to duty and thus committed misconduct within the meaning of rule 3 of the U.P. Government Servants Conduct Rules, 1956."
115. Learned Counsel for the petitioner has argued that only role of the petitioner in conducting the said examination was that under the orders of the High Court (15.01.1999) the recruitment proceedings were initiated by constituting a Selection Committee of four judicial officers, the Committee determined the vacancies and conducted the examination, evaluated the answer scripts after coding and decoding the answer scripts and submitted and recommended the Select List for approval to the petitioner. He being appointing authority approved the said select list and communicated the same to the Hon'ble High Court on the same date. His successor prepared the roster. The petitioner being the appointing authority issued the appointment letters to the successful candidates. The petitioner had no other role to play in the conduct of the examination. The petitioner did not himself evaluate any answer scripts and the preparation of the select list was beyond his control and had no hand in the preparation of the Select List. The petitioner could not have influenced the selection process and preparation of the select list.
It is further submitted that certain vested interest who approached the petitioner for Selection through recommendation by a senior sitting judge were disgruntled when the petitioner expressed his inability to maneuver the Select List as the Selection Committee was seized of the matter.
It is also argued that certain candidates who were relatives of the members of the Selection Committee specially of Sh. Mahendar Singh Civil Judge Sh. Mukhtyar Ahmad Adl. District Judge and other judicial officers, and Staff also participated in the examination for recruitment to the above posts of class III employees. These candidates could not be selected, therefore, these officers have adduced evidence against the petitioner.
116. It is further submitted that Inquiry Judge has examined witnesses, who were Chairman and Members of the Committee, whereas these judicial officers were not shown as witnesses in the charge-sheet. Therefore, these witnesses could not be examined by the presenting officer during the course of inquiry.
117. On the outset, it is relevant to mention here that the presenting officer moved application before the Inquiry Judge for examination of judicial officers, who were members of the Selection Committee constituted by the petitioner. This application was considered by Inquiry Judge. The petitioner did not raise any objection regarding examination of these judicial officers as witnesses. The order dated 13.07.2002 passed by Hon'ble Inquiry Judge in this regard is reproduced as follows:
"Enquiry taken up today in High Court Guest House at Lucknow.
The charged officer Sri R.P. Singh and Presenting Officer Sri Sabhapati Singh are present.
Sri R.P. Singh has asserted that if the Enquiry Judge finds the examination of these witnesses necessary in the interest of justice he will not object to the same from being taken. He has already submitted himself to this enquiry and will cooperate further to so.
In these circumstances no orders are passed on this application."
118. It is pertinent to mention here that Hon'ble Inquiry Judge vide order dated 04.05.2002 has observed against the petitioner as follows:
" The delinquent officer, Sri R.P.Singh, District Judge, Shravasti, has addressed this letter No. 23/P.A.-2002, Confidential dated 15.4.2002 directly to my Private Secretary. The conduct of this official is clearly an infringement of the rules and established procedure framed in this connection. The conduct, therefore, of this official amounts to gross indiscipline, indiscretion and show of disrespect.
I have perused this application sent to me directly by him. All the allegations made in this application are not only malicious but also frivolous. These allegations are false and a figment of imagination of this officer. There is nothing on the record to substantiate the same. As a matter of fact this application should have come to me through the Registrar General and not in the manner it had been addressed to me. However, in the interest of the enquiry, as advised by the Apex Court, I am not taking any note of whatever he has said in this application indirectly against me. This matter will be discussed in the report which I will submit after conclusion of the enquiry. Thus far my mind is clear and no malice is there, nor it was ever. Before the date of enquiry I have never met or seen this officer. On the date of enquiry, before the enquiry started, his request to meet me was turned down by me. He came before me during the enquiry for the first time on 5.4.2002. The conduct of the officer has already been detailed by me in my orders dated 5.4.2002 and 6.4.2002. The matter in which he had attempted to browbeat the enquiry can easily be gathered from the order dated 6.4.2002, scribed on the order-sheet. The preliminary objection was tentatively rejected. The option to raise it in the submissions to be made by the delinquent officer after the evidence is recorded was left unhurt.
This application of the officer dated 15.4.2002 is accordingly rejected."
119. Hon'ble Inquiry Judge has also vide order dated 04.05.2005 has observed against the petitioner as follows:
" While the inquiry report was being dictated today, Sri Shashank Shekhar, the Presenting Officer, brought into my notice at 4.40 P.M. a fax message dated 4th May, 2005 received from the Charged Officer praying that department be directed to place complete records and thereafter opportunity be provided for arguments with the assistance of Sri Amit Pal Singh and a date be fixed for further arguments.
The arguments were heard and completed on 1st of May, 2005 from 10.15 A.M. to 4.45 P.M. All the relevant files were produced by the Presenting Officer including the personal file of the Charged Officer as directed earlier. At the time of conclusion of hearing no such request was made by the Charged Officer seeking any further date for arguments or assistance of any other person.
In above view of the matter, there is no occasion to entertain any request for directing for placing any records or giving opportunity of further arguments with the assistant of one Amit Pal Singh as claimed in the application.
The application is rejected."
Therefore, the petitioner cannot raise this objection before this writ Court regarding examination of the aforementioned judicial officers during the course of inquiry on the basis of principles of estoppel and acquiescence.
120. We have perused statements of PW-1 Sri Vikramjeet Singh, the then District Judge, Ghazipur, PW-2 Sri Kuldeep Narain Rai,PW-3 Sri Satendra Prasad, Advocate, PW-4 Sri Ram Singh, Additional District Judge, Moradabad/Chairman of Selection Committee, PW-5 Sri Mahendra Singh, Civil Judge (Senior Division) Firozabad, PW-6 Sri Shamshad Ahmad, Additional District Judge, Allahabad and PW-7 Sri Mukhtar Ahmad Additional District Judge, Barabanki.
121. PW-1 Sri Vikramjeet Singh, the then District Judge, Ghazipur has perused select list, result and answer sheets of the selected candidates and he has stated that after perusal of these documents he forwarded his report to this Court. He has also clarified that this Court also sought report regarding complaints received at the High Court. On the basis of copies of these complaints he forwarded his factual report to Hon'ble Administrative Judge. He has stated that he had cancelled the examination by exercising his authority as appointing authority. He has further stated that he complied with orders of this Court and submitted his reports.
122. He has apprised the Hon'ble Inquiry Judge that his predecessor, the petitioner did not reserve posts according to prescribed quota for promotion of Class IV employees on the post of Class III employees. The petitioner conducted process of appointment and issued appointment letters for all the posts advertised by him. A select list of 48 candidates was prepared. None of the candidates was successful in the examination conducted for Stenographer. The Chairman of the Selection Committee Sri Ram Singh submitted his report dated 19.08.1999 to this effect.
123. PW-1 has also apprised that the petitioner issued appointment letters of 21 candidates, even some appointment letters were issued by him on the date when he handed over charge of District Judge, Ghazipur. He also filled up 09 posts of Stenographer, whereas none of the candidate passed examination of Shorthand/type for the post of Stenographers/ Personal Assistants. The examination was held for 21 posts collectively including 12 Class III employees, 07 Stenographers and 02 Personal Assistants.
124. PW-1 has proved order dated 25.04.1999 as Ext P-1, by which, the petitioner constituted Selection Committee and advertisement Ext P-2. PW-1 has also apprised Hon'ble the Inquiry Judge that in the Judgeship Ghazipur 14 Courts were vacant and employees were in surplus. There was no immediate or urgent need to fill up the vacant posts of employees. He has also apprised the Honble Inquiry Judge that on perusal of select list of 48 candidates, candidates of Backward Caste including particular caste 'Yadav' were included in the select list.
125. PW-1 has proved his order dated 17.01.2000 as Ext P-3, by which he cancelled the select list. He has stated that he has mentioned reasons in his order of cancellation of the select list. The post of Stenographer was filled up by the petitioner by appointing 21 candidates as Class III employees.
126. PW-1 has perused Answer Sheet of candidate Prabhakar Mishra son of Jata Shanker Mishra, Code No. BD 28, Role No. 2357 and stated that there was overwriting on marks 98 obtained by this candidate. There was interpolation in Part-A and marks 20 was converted to 30. In Part-B marks 24 were converted to 34 and in Part-C marks 14 were converted to 34. This candidate could not be successful in the examination, even then he was declared successful. He has stated that he perused answer sheet on the basis of directions given by this Court. Answer Sheet of Prabhaker Mishra was proved as Ext P-4.
127. PW-1 likewise has stated that in answer sheets of candidates Anesh Kumar singh, Mohd Jalaluddin Akbar, Neeraj Kumar Mishra and Vijay Kumar Srivastava marks have been enhanced by interpolation. He has specifically stated that Question No.05 was answered by Vijay Kumar Srivastava only in one incomplete sentence, even then 10 marks were awarded to him. These answer sheets were proved as Ext P-5 (say P-8). On bare perusal of these answer sheets, PW-1 has opined that these interpolation were not made by the person who evaluated these answer sheets, but afterwards these interpolations were made by enhancing the marks awarded to these candidates.
128. PW-1 has specifically pointed out that in answer sheet of General Knowledge of candidate Mohd Jalaluddin Akbar by interpolation 12 marks were converted to 32 marks, whereas in the inner part of answer sheet total marks awarded were 12 only. Likewise, Vijay Kumar Srivastava was awarded 28 marks in General Knowledge, whereas in the inner part of answer sheet total marks awarded were 18. These answer sheets have been proved by PW-1 as Ext P-9 and P-10 respectively.
129. PW-1 has also pointed out that in answer sheet of General Knowledge of candidate Raj Kumar 14 wrong answers were scored off and correct answers were written and more marks were awarded to this candidate. Answer Sheet was proved as Ext P-11. Sri Hari Shanker Singh Yadav and Govind Ram were awarded enhanced marks 49 and 48 respectively out of 50 in General Knowledge, only to declare them successful, even then they secured less marks in other written examination. These answer sheets were proved as Ext P-12 and P-13.
130. Another answer sheets of General Knowledge were proved by P.W.1 as Ext P-14 to Ext P-20. He has specifically pointed out that in Answer Sheets Ext P-12 and Ext P-13 wrong answers were converted to correct answers in different handwriting. Likewise, Ext P-21, Answer Sheet of candidate Dinesh Kumar was perused by PW-1 and stated that first page of this answer sheet was written by one person and remaining part of answer sheet was written by another person. PW-1 has proved his report dated 16.08.2001 Ext P-22, which was based on the above mentioned facts found by PW-1 on perusal of these answer sheets.
131. The petitioner has cross-examined PW-1. During his cross-examination PW-1 has clarified that he has forwarded his reports to this Court on the basis of facts and after perusal of documents. He has also opined that according to quota for promotion from the post of Class IV to Class III, posts should have been reserved. Examination for promotion can be conducted prior to the direct recruitment to the post of Class III employees or it can be held afterwards also.
132. Hon'ble Inquiry Judge also cross-examined PW-1 on the point of preservation of post for promotion from Class IV to Class III post, but this fact could not be substantiated by the petitioner during cross-examination that he preserved posts according to 15 % quota for promotion Class IV employees to Class III employees, before advertising 21 posts of Class III employees.
133. PW-1 has clarified during cross-examination by Hon'ble Inquiry Judge that on the point of time of impugned examination there was 16 vacancies of Class III employees and new Court of Additional District Judge, Sashtum (VIth) was created. Therefore, posts for Class III employees was also created. He has also clarified that on the basis of judicial order passed by this Court, he conducted examination for promotion from the post of Class IV employees to Class III employees and prepared roster accordingly. He has stated that roster could not be effective, because select list of Class III employees was cancelled by him due to irregularities and illegalities and because it was prepared by deceitful means. Therefore, list prepared for promotion could not be given effect to.
134. PW-1 has stated during cross-examination by the petitioner that he had not made any ad hoc appointments, because rules do not permit such appointments. He has clarified that he changed roaster on 04.11.1999 on the basis of Government Orders dated 31.08.1982 and 08.12.1995 and directions given by this Court in Writ Petition No. 35455 of 1999. He forwarded his report dated 05.11.1999 to this Court. He has clarified during his cross-examination that select list was sent to Hon'ble High Court on 11.08.1999 and the petitioner issued appointment letters during period of 05 days before handing over charge by him. Some appointment letters were also issued on this very day also. He has been cross-examined by the petitioner regarding the fact of complaints received regarding examination conducted by the petitioner, but no material fact was elicited during this cross-examination.
135. The petitioner has also cross-examined PW-1 on the basis of cancellation order dated 17.01.2000 and correspondence dated 01.08.2001 and 16.08.2001 made by PW-1. He has also cross-examined PW-1 regarding answer sheets proved by PW-1, but no material fact was elicited by the petitioner regarding the circumstances in which this interpolation was made in these answer sheets.
136. The examination dated 04.07.1999 was conducted under supervision of the petitioner and answer sheets of selected candidates were perused by PW-1 for sending his report in compliance of directions of this Court. Therefore, PW-1 Sri Vikramjeet Singh, the then District Judge, made correspondence and sent his reports on the basis of facts observed by him regarding examination conducted by the petitioner under his supervision. Therefore, Hon'ble Inquiry Judge has relied upon statement of PW-1 Sri Vikramjeet Singh in correct prospectives.
137. PW-2 Sri Kuldeep Narain Rai was examined by Hon'ble Inquiry Judge, who forwarded complaint to this Court regarding examination and recruitment of Class III employees at Judgeship Ghazipur. PW-2 was employed in Opium factory, Ghazipur and in the year 1999 he was superannuated. He recognized PW-1 Sri Vikramjeet Singh as the then District Judge, Ghazipur and his son appeared in the examination conducted by the petitioner under his supervision. Although, he has denied that he forwarded any compliant to this Court referred to him during his examination by the Presenting Officer, but he has apprised Hon'ble Inquiry Judge that irregularities in conducting this examination was talk of the town. He has stated that he forwarded a letter in English language regarding irregularities conducted for holding this examination to Hon'ble Chief Justice, but this letter was not available on the point of time of examination of PW-2.
138. P.W.2 has apprised Inquiry Judge that some unknown persons approached him to know answer of question of English language. He has clarified that three to four persons approached him in this regard before one week of holding of this examination. During cross-examination PW-2 stated that his son was not selected in this examination. Sri R.P.Singh was not recognized by this witness as the then District Judge of Judgeship, Ghazipur. He has informed to the Hon'ble Inquiry Judge that a Select Committee was constituted. He denied that he ever forwarded complaint Paper No. 18 to 20.
139. Hon'ble Inquiry Judge perhaps ignored evidence of PW-2 Sri Kuldeep Narain Rai, because he has denied to forward complaint received at this Court. His evidence comes in the category of hearsay evidence, but his evidence is material in respect of the fact that three to four persons approached him before one week of date of examination to get answer of question of English language. He also forwarded letter to Hon'ble Chief Justice regarding irregularities for conducting examination.
140. PW-3 Sri Satendra Prasad, Advocate was also examined before Hon'ble Inquiry Judge. PW-3 has proved his complaint dated 12.08.1999 Ext P-23, which was forwarded by him regarding irregularities conducted during cross-examination dated 04.07.1999. He has adduced hearsay evidence that amount of Rs. 2 to 2 1/2 lacs was received from selected candidates. He has also opined that after completion of selection process, the petitioner was transferred to Aligarh as an award.
141. PW-3 has accepted during his cross-examination that he has adduced his evidence on the basis of hearsay facts, which also includes that District Judge directed to Selection Committee that 90% marks should be awarded to candidates who paid the bribe and other candidates should be awarded less then 50%. This witness has accepted that in one case he is complainant and in another criminal case he is accused, which is pending in the Court of C.J.M. Ghazipur. He also forwarded complaints against judicial officers.
142. Hon'ble Inquiry Judge has also cross-examined PW-3 in which he has accepted that he moved application through D.G.C. for conducting process under Section 82-83 against the accused, which was rejected by Sri R.P.Singh-petitioner. He refuted this suggestion that due to this fact, he forwarded complaint to this Court and stated that he was disturbed due to corruption prevailed in Judgeship Ghazipur. He also forwarded complaint to Hon'ble Apex Court.
143. P.W.3 has clarified that none of the member of his family was the candidate of examination dated 04.07.1999. He has no knowledge where answer sheets were evaluated. He has no knowledge in which circumstances bribe was given by the candidates. During course of examination conducted by Inquiry Judge, he has clarified that he has no specific knowledge of the fact that District Judge directed to the Selection Committee that 90 % marks should be awarded to candidates who have given bribe and less than 50% marks should be given to other candidates.
144. In these circumstances, Hon'ble Inquiry Judge has ignored evidence of PW-3 because his evidence also comes under category of hearsay evidence.
145. Thus PW-2 and PW-3 who are complainants of complaints received at this Court were examined during the course of inquiry, although Inquiry Judge has ignored their evidence as it was hearsay and recoded finding that Charge Nos. 1 to 4 were proved against the petitioner, except charges of corruption. This finding has been recorded in correct prospectives. There is no substance in the arguments of learned Counsel for the petitioner that none of the complainants of so-called complaints received by District Judge Vikramjeet Singh or this Court were not examined during the course of inquiry.
146. We have also perused statements of PW-4, who was the Chairman of Selection Committee. The order of constitution of Select Committee Ext P-1 has been proved by him. He has informed that after transfer of Sri Raghvendra Singh, the petitioner nominated Sri Jai Shanker Mishra, Judicial Magistrate, Ghazipur as member of the Committee. He has also proved advertisement of posts of Class III employees as Ext P-2. He has stated that after evaluation of answer sheets of the candidates, a select list (Ext P-24) of 48 candidates was prepared, which was approved by the petitioner on 11.08.1999.
147. Approval of select list was proved by PW-4 as Ext P-25. He has apprised the Hon'ble Inquiry Judge that joint examination was conducted for the post of Stenographers and Class III employees. Shorthand and Type test was conducted of those candidates, who applied for post of Stenographer also. None of the candidate was successful in this examination for the post of Stenographer.
148. P.W.4 has also proved that the Select Committee submitted its report (Ext P-26) dated 19.08.1999 in compliance of order passed by Sri Vikramjeet Singh, the then District Judge Ghazipur after conclusion of examination and preparation of result. This report discloses that result was related to only 12 posts of Class III employees.
149. PW-4 has stated that Answer Sheet (Ext P-11) contained cuttings at various places, which was evaluated by Sri Shamshad Ahmad. Answer Sheet (Ext P-10 & Ext P-20) were evaluated by Sri Mukhtar Ahmad, ADJ, which were having cuttings in answers at various places in answers given by the candidate. Marks obtained by candidate was 18, which were converted to 28 by interpolation. He has also apprised the Inquiry Judge that Sri Kripa Shanker Sharma, Civil Judge (Junior Division) evaluated answer sheets (Ext P-9 & 18), which were having cuttings at various places given by the candidate. Total marks 12 were converted to 32, whereas in the internal part of answer sheet total of marks was 12 only. Answer Sheet (Ext P-12) was evaluated by Sri Jai Shankar Mishra. There was cuttings on various places of answers given by the candidate. Answer Sheets (Ext P-13, P-14, P-15 and P-16) were having cuttings in answers at various places. No marks were awarded against the answer. These answer sheets were evaluated by Sri Mahendra Singh.
150. PW-4 has accepted that he evaluated answer sheet Ext P-19, which was having cuttings in answers given by the candidate.
151. PW-4 has apprised Hon'ble Inquiry Judge that on the first page of answer sheet (Ext P-4), number 20 was converted to 30, number 24 was converted to 34 and number 14 was converted to 34. Total marks 58 were converted to 98. The answer sheet was evaluated by Sri Mahendra Singh. On the first page of answer sheet of (Ext P-5), marks 26 was converted to 36 and marks 13 was converted to 23. Total marks 63 was converted to 83. This answer sheet was also evaluated by Sri Mahendra Singh.
152. Likewise, He has apprised that on first page of answer sheet (Ext P-6) marks 16 was converted to 36, marks 13 was converted to 33 and marks 15 was converted to 35. There was overwriting on total marks. He has also stated that answer sheet (Ext P-7) was having overwriting and cuttings. Marks 16 was converted to 36, marks 14 was converted to 34 and marks 07 was converted to 37. There was overwriting and cutting on total marks also.
153. On perusal of answer sheet (Ext P-8), PW-4 has stated that this answer sheet was evaluated by Sri Mahendra Singh and total marks obtained by the candidate was 95.
154. He has also pointed out that on the first page of answer sheet (Ext P-21) available handwriting differs from handwriting available on another pages of answer sheet.
155. PW-4 has also stated that on direction of the petitioner Sri S.F.Ashraf, the then A.C.J.M. Ghazipur performed work of codification of answer sheets and answer sheets were evaluated by other judicial officers and members of the Committee in the retiring room of the petitioner. These answer sheets were evaluated in Bundals of 50-50 and after evaluation were kept in iron box.
156. PW-4 during his cross-examination has also clarified that on the basis of order dated 25.04.1999 passed by the petitioner advertisement of the post was issued in news paper. The Senior Administrative Officer submitted report before the Select Committee regarding vacant post of Class III employees and Stenographers and committee submitted its report on 01.05.1999, which was approved by the petitioner on the same day.
157. PW-4 has also informed that on the basis of order dated 05.05.1999 passed by the petitioner, he sent information to District Information Officer, Ghazipur and District Employment Officer, Ghazipur regarding posts advertised by the Judgeship Ghazipur.
158. The examination was conducted on 04.07.1999 at P.G.College Ghazipur. He has admitted that one complaint was received by him through District Judge Ghazipur, which was properly replied by him. Another complaint regarding conduct of examination was received by him regarding unfair means used by the candidates which was allegedly permitted by the Selection Committee.
159. The petitioner has cross-examined PW-4 on the point that select list (Ext P-24) was prepared by mentioning in it details of candidate and marks obtained by him. He has stated that select list included candidates of "Yadav" caste and "Muslims" also. Select List was prepared of 48 candidates and no recommendation was made separately for the post of Stenographers. The examination of Shorthand of Hindi and English language was conducted for the post of Stenographers. The petitioner has cross-examined PW-4 regarding answer sheets (Ext P-11, P12 and P-13), in which answers were written by cutting. PW-4 could not opined whether these answers were written by same ink or different ink. Likewise, PW-4 has stated that in Answer Sheet (Ext P-10), who converted marks 18 to 28, he do not know. He has no knowledge when marks of answer sheet (Ext P-09) were converted/enhanced or interpolated.
160. PW-4 in his cross-examination regarding Answer Sheet (P-12 and P-13) has stated in respect of the fact that there was no cutting on the first page. The fact elicited in cross-examination of PW-4 do not extend any benefit to the petitioner, because he has pointed out interpolations and cuttings in the answer sheets of selected candidates and marks have been enhanced in the answer sheets referred by him in his examination-in-chief. No material fact was elicited during the course of cross-examination of PW-4, which could help the petitioner.
161. PW-4 has corroborated statement of PW-1 on the factual aspects that marks obtained by selected candidates were enhanced by interpolation and there was also overwriting and cuttings in the answer sheets over the marks and answers given by the concerned candidates respectively.
162. We have also perused statement of PW-5, who was the member of Selection Committee and he has also evaluated the answer sheet referred by PW-1and PW-4.This witness has evaluated answer sheets P-13,P-14,P-15andP-16.He has accepted that answers given by the concerned candidates were scored off relating to various questions. He has not awarded marks in answer sheets P-13,P-14 and P-16 against the answers given by the concerned candidates. He only marked as right against right answers and cross mark against wrong answers. There were cutting in these answer sheets.
163. PW-5 has also accepted that in answer sheet Ext P-4 on the first page in part-A marks 20 were converted to 30, in part-B marks 24 were converted to 34 and in Part-C marks 14 were converted to 34 and total marks 58 were converted to 98. On the concerned internal page he also converted marks 10 to 20, marks 1 2 to 22 and marks 00 to 02.
164. Likewise, he accepted that in answer sheet P-5 in Part-B marks 26 were converted to 36 and in part C marks 13 were converted to 23. Total marks 63 were converted to 83. In the concerned internal pages he converted 13 marks to 23 and 00 to 10. Answer Sheet P-6 was not evaluated by this witness. He also enhanced marks of answer sheet Ext P-4 on the direction given by the petitioner.
165. PW-5 has also apprised the Inquiry Judge that the petitioner being District Judge apprised the Chairman Sri Ram Singh and other members of the Selection Committee that a particular candidate was recommended by Hon'ble Justice of Hon'ble Supreme Court. He gave oral directions that none of the candidates should be awarded marks more than 50%. Marks above 75 were to be given to the candidates on the direction of the petitioner. PW-5 has mentioned that he enhanced marks in Answer Sheet P-4 and P-5 considering the fact that Annual Entry was to be recorded by the petitioner being District Judge and his annual remark might have been adversely recorded by the petitioner. Therefore, he acted upon the directions given by the petitioner considering his future prospects of judicial career.
166. The petitioner has cross-examined PW-5 and tried to point out that there was no cutting or overwriting on the first page of answer sheets of General Knowledge i.e. P-13, P-14, P-15 and P-16 on marks awarded to the concerned candidates. During his cross-examination he has accepted that in Answer Sheet P-15 total marks 50 awarded was mentioned, whereas on the first page marks awarded were 18 and on 2nd page marks awarded were 28 i.e. total marks 46. Likewise, there was cutting in answers of question no. 6 and 8. Answer "Jaipur" was scored off and "Udiapur" was written and "Kannad" and "Alaknanda" was written after scoring off previous answer given by the candidate.
167. PW-5 has answered question put forth by the petitioner that the petitioner also gave instructions that if any candidate scored off previous answer in the answer sheet, then he should be awarded half marks to the question to this particular question. He has refuted the suggestion that PW-5 himself made cutting and overwriting in the answers given by the concerned candidates.
168. PW-5 has also mentioned that he did not inform this Court or Hon'ble Inquiry Judge, because other persons made complaints regarding examination/recruitment made at Judgeship Ghazipur. He has reiterated during his cross-examination that he enhanced marks of answer sheets P-4 and P-5 in presence and on direction of the petitioner. He has also apprised the Hon'ble Inquiry Judge that the petitioner called a meeting of Selection/Examination Committee and gave oral directions that in descriptive paper ordinarily marks more than 50% should not be awarded to any candidate. If any officer will violate his direction then matter shall be taken seriously.
169. PW-5 has stated in his cross-examination that the petitioner called meeting in his Chamber after preparation of result and asked him to sign the result. He told the District Judge that selected candidates were awarded marks more than 50 % and selected candidate belonged to "Yadav" caste in category of Backward Caste. He was not interested to sign the result sheet for two days, even after direction of the petitioner and Chairman Sri Ram Singh, but he was apprised that other members of the Committee had signed the result sheet. Therefore, on advice given by other judicial officers, he also appended his signatures on result sheet.
170. The petitioner during cross-examination of PW-5 has not given any suggestion to PW-5 that his brother-in-law was a candidate of examination dated 04.07.1999, as suggested to PW-6 Sri Shamshad Ahmad that son of Ram Singh, brother-in-law of Mahendra Singh and a candidate of Sri Mukhtar Ahmad were candidates of this examination.
171. Learned Counsel for the petitioner has tried to point out this fact that these candidates were not selected in the examination conducted under his supervision. Therefore, these judicial officers adduced their evidence against him. Moreover, the petitioner only was not responsible for the irregularities in conducting the examination, because he had not participated at any stage of these examination nor evaluated any answer sheet himself. Selection Committee prepared result after conducting the examination on 04.07.1999 and prepared select list, which was only approved by the petitioner being appointing authority as District Judge.
172. Learned Counsel for the petitioner has also argued that these judicial officers were also responsible for irregularities in conducting examination being Chairman and Member of the Selection Committee.
173. In light of evidence adduced by witnesses PW-1, PW-4 and PW-5 there is no substance in the arguments because the petitioner was the appointing authority of Class III employees and more than vacant post, he has appointed 21 Class III employees instead of 12 advertised posts and gave directions to judicial officers to enhance marks by interpolations.
174. We have perused statement of PW-6 Sri Shamshad Ahmad, who was member of the Selection Committee. He has mentioned that Selection Committee was constituted for selection of Class III employees and Stenographers on vacant posts. Answer Sheet P-11 was evaluated by him. He has accepted that on various answers, there was cutting. Chairman Sri Ram Singh and the petitioner being District Judge directed the members time to time prior and after conduct of examination. He has mentioned that the petitioner being District Judge remained present at the point of time of evaluation of answer sheets. The petitioner also called meeting in his Chamber and orally directed that in descriptive question papers marks more than 50 % should not be awarded to any candidate. Therefore, he has corroborated statement of PW-5 Sri Mahendra Singh in this regard. They were also warned by the petitioner that if any officer would violate his directions, then matter shall be seriously taken up.
175. He has also stated that the petitioner called him in his Chamber and asked him to sign the result sheet. He told the District Judge that selected candidate of Backward Caste belonging to a particular caste "Yadav" were selected and marks were awarded to selected candidates more than 50 %. He did not append his signatures on result sheets for two days. On the advise of other judicial officers, he appended his signatures on result sheet.
176. The petitioner during cross-examination has relied upon complaint forwarded against this witness, but he has stated that this complaint was moved by Ashok on the basis of civil litigation and no action was taken against him. During his cross-examination he has stated that son of Ram Singh, Chairman of the Committee and brother-in-law of Mahendra Singh and a candidate of Sri Mukhtar Ahmad appeared in the examination. None of the candidate was related to him.
177. During cross-examination of this witness, it was asked by the petitioner that Hon'ble Justice Sri D.K.Trivedi sealed documents of his Court of Railway Magistrate, NR, Lucknow. He has refuted this suggestion that being presiding officer he disposed of 500 files, but receipt were issued in 50 cases only. Cross-examination was also conducted on the basis of Answer Sheet (Ext P-11), but this witness has not given positive answer that cutting on answers was in same ink and handwriting. He has answered that it appear to so.
178. This witness has stated during the cross-examination that the petitioner along with him met with father-in-law of this witness, who was the Hon'ble Judge of this Court. Therefore, during cross-examination no material fact was elicited on behalf of the petitioner. This witness has proved that the petitioner directed the members of the Selection Committee and judicial officers, who evaluated the answer sheets that in descriptive paper more than50 % marks should not be awarded to any candidate and he raised objections on the selected candidates of Backward Class, who were of "Yadav" caste and he was reluctant to sign to result sheet for two days.
179. We have also perused statement of PW-7 Sri Mukhtar Ahmad, Additional District Judge. This witness has evaluated Answer Sheet (Ext P-10) of General Knowledge. He has accepted that he awarded 18 marks to the candidate. On the first page of answer sheet, he wrote 18/50, afterwards 18 was converted to 28. He did not enhance these marks. He has not appended his initials on overwriting. This witness also evaluated the Answer Sheet (Ext P-20). In this answer sheet previous answer was scored off by cutting and right answer was again written by the candidate. He has no knowledge, who has scored off previous answers and written correct answers. He has clarified that answer sheets were evaluated in Chamber of the petitioner. He has also stated that during evaluation the petitioner along with Sri Ram Singh, Chairman of the Selection Committee remained present and the petitioner gave oral directions that marks more than 50 % should not be awarded to any candidate.
180. During Cross-examination PW-7 has accepted that his brother was candidate of this examination and he appeared in this examination. He has also accepted that on 15.12.1998, he took charge on his first posting and remained on training from the month of January up to April. He has no knowledge that any examination of Shorthand in Hindi and English was conducted. He has clarified during cross-examination that Selection Committee prepared report Ext P-26 and it was mentioned in it that no candidate was successful for the post of Stenographers.
181. Witness PW-7 has also stated in his cross-examination that he did not apprise the petitioner that his brother was candidate of the said examination, because he was not member of the Selection Committee and any one could appear in the examination. He has also stated that the petitioner was having effective control over the conduct of examination. PW-7 has clarified that he evaluated the answer sheets for two to four days in Chamber of the petitioner.
182. Therefore, PW-7 has also corroborated statements of PW-4, PW-5 and PW-6 that the petitioner gave instructions to the judicial officers who evaluated the answer sheets that in descriptive paper more than 50 % marks should not be awarded. Therefore, it can be inferred that the petitioner was having effective control during conduct of examination and evaluation of answer sheets.
There is no substance in the argument of learned Counsel for the petitioner that he did not participate during course of conduct of examination and the Selection Committee only was responsible for irregularities during conduct of examination and evaluation of answer sheets.
183. It is pertinent to mention here that the petitioner gave oral directions to the judicial officers and members of the Selection Committee that more than 50 % marks should not be awarded and if any judicial officers would violate his direction, then matter shall be taken up seriously.
184. We have also perused statement of PW-8 Sri Kripa Shanker Sharma, Civil Judge (Junior Division), who has evaluated the answer sheets. He has perused Answer Sheet ( Ext P-9) and stated that on the first page of answer sheet marks 12/50 has been converted to 32/50. Marks 12 has been converted to 32. He has no knowledge that who made these interpolations. He has mentioned that the candidate attempted one question only, which was of 12 marks. He has also stated that the petitioner being District Judge called a meeting before evaluation of answer sheets and he has mentioned that the petitioner gave directions in Chamber in presence of Sri Mukhtar Ahmad, Sri Shamshad Ahmad, Sri Jai Shanker Mishra and Sri Mahendra Singh that in question paper of Hindi and English language maximum 50 % marks should be awarded.
185. During his cross-examination PW-8 has clarified that in Answer Sheet (Ext P-9) there was cutting in the answer. The candidate answered question no. 4Aa. He first wrote "Kannad" then " Aasam". "Aasam" was scored off. These both answers were wrong. Answer Sheet (Ext P-18) was also referred to.
186. During cross-examination of PW-8 the petitioner tried to point out that there was no cutting or overwriting on the total marks. Marks 43/50 was mentioned on the first page of answer sheet, which is not material on the basis of interpolation proved by this witness.
187. PW-8 has corroborated the statements of witnesses PW-4, PW-5, PW-6 and PW-7 regarding the fact that the petitioner was having effective control during evaluation of the answer sheets of the candidates and on the directions given by the petitioner answer sheets were evaluated by these witnesses.
188. Learned Counsel for the petitioner has brought on record cross-examination of DW-7 (the petitioner) only. He has not provided examination-in-chief of the petitioner. He has refuted during cross-examination that he gave any directions to the judicial officers, who evaluated the answer sheets that more than 50 % marks should not be awarded to any candidate. During cross examination by Hon'ble Inquiry Judge the petitioner has apprised that examination was conducted for direct recruitment of Class III employees and he directed the Selection Committee that post according to 15 % quota for promotion of Class IV employees on the post of Class III employees should be preserved. But he has not elicited any material regarding interpolation found in the above mentioned answer sheets of selected candidates.
189. On the other hand PW-1, PW-4, PW-5, PW-6, PW-7 and PW-8 witnesses has corroborated this fact that there was interpolation on marks awarded to the selected candidates and there was cutting and difference of handwriting in the answer sheets of the selected candidates. PW-5 has specifically stated that he enhanced marks of the selected candidates on the directions given by the petitioner.
190. Learned Counsel for the petitioner has relied upon the statements of DW-1 Arvind Singh Gautam, DW-2 Rajesh Kumar Yadav, DW-3 Govind Ram, DW-4 Raj Kumar, DW-5 Amarjeet Yadav and DW-6 Virendra Kumar.
191. It is relevant to mention here that these witnesses are selected candidates of the examination dated 04.07.1999. The presenting officer has suggested DW-1 that in answers of question no. 11, 14, 15 and 24 there was difference of handwriting and ink of corrected answers. This witness DW-1 refuted this suggestion and stated that there was no such difference.
192. DW-2 has also refuted suggestion of the presenting officer that he scored off answer of six questions and again wrote answers. Handwriting of answer of question no. 13 and 16 Ba were different. Likewise, Hon'ble Inquiry Judge has also cross-examined DW-2 and found that in question Nos. 5, 6 and 2 answers were written in different handwriting and ink. DW-2 has also refuted suggestion given by Ho'ble Inquiry Judge.
193. DW-3 witness has accepted that he scored off answers of seven questions. Answers of question nos. 08 and 11 were written in different ink and handwriting. He has also refuted this suggestion that amended answers were written after the examination.
194. DW-4 has accepted during his cross-examination that he scored off answers of 09 questions, but refuted this suggestion that there is difference of handwriting of answer of answer of 5Ba, 5Aa and 23.
195. DW-5 has also accepted that he scored off answers of 10 questions, but refuted this suggestion that answer of question no. 10Ba, 13 and 14 were written in different ink and handwriting.
196. DW-6 has accepted that during his cross-examination he has scored off answers of seven questions and he wrote amended answers afterwards.
197. Therefore, inference may be drawn that DW-1 to DW-6 adduced evidence in favour of the petitioner, because they were selected in the examination conducted under effective control and supervision of the petitioner.
198. We have perused Inquiry report dated 04.05.2005. Honble Inquiry Judge has considered evidence adduced by the presenting officer and the petitioner. Hon'ble Inquiry Judge has considered the reply submitted by the petitioner against the charges framed against him. The petitioner has participated in the course of departmental proceedings and witnesses PW-1 to PW-8 were examined in his presence. He has cross-examined these witnesses. Therefore, proper and adequate opportunity of hearing has been provided to the petitioner.
199. The Hon'ble Inquiry Judge has appreciated evidence of witnesses PW-1 to PW-8 and recorded detailed facts appeared in the evidence regarding answer scripts referred to the witnesses. The evidence of witnesses has been appreciated and evaluated by Hon'ble Inquiry Judge in correct prospectives. His Lordship has also evaluated and appreciated evidence of DW-1 to DW-6 and had rightly discarded their evidence being interested witnesses and being selected in the recruitment held on 04.07.1999 under supervision of the petitioner. A detailed observations has been mentioned by Hon'ble Inquiry Judge on page 08 to 14 of the inquiry report. It was found by the Inquiry Judge that there were interpolations for enhancing marks of the selected candidates. Regarding vacancies advertised in the Judgeship Ghazipur and recruitment of 21 candidates on the post of Class III employees following findings have been recorded by Hon'ble Inquiry Judge:
"xxxx Before proceeding to examine Charges No. 1 to 4, reply of the charged officer and the evidence on record, it is necessary to note the objection raised by the charged officer with regard to the report of the District Judge dated 16th August, 2001 which has been relied in support of Charges No.1 to 4. During oral submission, the charged officer submitted that the said report could not have been relied since the said report was not there in existence at the time when decision was taken to initiate the inquiry, i.e. 4th May, 2001. He submitted that in support of charges no material can be taken into consideration which was not there at the time when enquiry was decided to be initiated. He placed reliance on a judgment of the apex Court reported in AIR (1978) 1 SCC 405; Mohindra Singh Gill Vs. the Chief Election Commissioner, New Delhi and others. The objection raised by the charged officer has no substance. The report of the District Judge dated 16th August, 2001 was received before framing the charges and the said report is listed as evidence in support of Charges No. 1 to 4. Any material with the disciplinary proceeding in existence at the time of framing of charge can be included in the charge-sheet. There is no statutory prohibition or any rule that the materials existing only at the time of initiation of the disciplinary inquiry has to be relied even when new materials come into the notice of the disciplinary authority while disciplinary proceedings are continuing. There is no prohibition in issuing even an additional charge-sheet. The judgment of the apex Court in Mohindra Singh Gill's case (supra) does not support the contention which is raised by the charged officer. In the said case, the apex Court laid down that where a statutory functionary makes an order based on certain grounds its validity cannot be supported by fresh reasons in the shape of affidavit or otherwise. The grounds for testing the validity of an administrative order passed by statutory authority by writ Court is on different principle and basis. Present is not a case of testing the correctness of any administrative order. Reliance on any material available with the disciplinary authority at the time of framing of charge is fully justified and there is no error in relying on the report of the District Judge dated 16th August, 2001 for framing of the charges against the charged officer.
There is no dispute that 12 vacancies of clerk, 2 vacancies of personal assistant and 7 vacancies of stenographer were advertised. According to Rule 1947, the cadre of stenographer is a separate cadre which requires different qualification. It is also on the record that apart from written test, the test of stenography was also separately taken. There is a report of the selection committee on the record dated 19th August, 1999 that no candidate was declared successful in the examination of stenographer. The report of the selection committee dated 19th August, 1999 is specifically mentioned in support of the charges No.1 to 4 which is on the record. The result for the post of the stenographer is on the record which clearly shows that none of the candidates who were included in the select list of 48 persons were declared passed in the examination of the stenographer. The selection committee having specifically reported that no candidate could pass in stenography, there was no occasion for filling the seven posts of stenographer also and issuing appointment letter to 21 persons. The reply of the charged officer is that there is no rule for conduct of examination for stenography separately and there is no bar for recruitment of stenographer from regular line as ministerial service of the judgeship forms a unit. The charged officer further states that there was no whisper in the select list that none of the candidates have qualified as stenographer. The District Judge being appointing authority is fully responsible for recruitment. Without verifying that whether any candidate has passed stenography examination or not, the approval of the list of candidates and issuance of the appointment letter was a serious misconduct.
The allegation in Charge No.1 that candidates were selected not on merits but with the help of cutting, overwriting and manipulation in the answer sheets has also to be examined in the light of Charges No. 2,3 and 4. Charge No. 2 is a specific allegation that cutting,overwriting and manipulations in the answer scripts of the written test of the candidate......................."
Thus Hon'ble Inquiry Judge has found, from the material on record of the inquiry, charge Nos 1 to 4 proved, except the charge of illegal gratification.
200. Learned counsel for the petitioner has argued that Hon'ble Justice Palok Basu, Inspecting Judge of Judgeship, Ghazipur was the member of Administrative Committee also and to scuttle the chance of elevation of the petitioner, matter of recruitment/examination dated 04.07.1999 was re-opened by his Lordship. Moreover, allegations of gratification was not proved during the course of inquiry against the petitioner.
201. It is relevant to mention here that interpolation/overwriting for enhancing marks of selected candidates was found and proved during the course of inquiry. Why these interpolations were made, perhaps for extraneous, reasons for enhancing marks of the selected candidates, could best known to the petitioner. He was the appointing authority, therefore, it was his responsibility to make selections for the posts advertised by Judgeship Ghazipur under his supervision. If Selection Committee ignored to preserve/reserve post for promotion of Class IV employee to the post of Class III employees according to 15 % quota prescribed for them, then he could taken proper action immediately and the wrong committed by the Selection Committee could be corrected by him.
202. It is proved by the witnesses that he instructed the judicial officers and members of Selection Committee that marks more than 50% should not be awarded in descriptive question paper to any candidate and threatened the judicial officers, who evaluated the answer sheets/scripts that if any of them will violate his directions then he will take serious view against such officer.
203. PW-5 Sri Mahendra Singh, Civil Judge has adduced evidence that the petitioner directed him to enhance marks of the selected candidates of whom he evaluated the answer scripts. Other witnesses have also proved and corroborated statement of PW-5. PW-1 Sri Vikramjeet Singh, the then District Judge and other witnesses have proved the interpolations made in the answer scripts evaluated by them. PW-4 has adduced evidence on the fact that none of the candidates was successful for the examination of Shorthand of Hindi and English language. Therefore, appointments on the vacant post of Stenographers could not be made by the petitioner, he has issued 21 appointment letters for the post of Class III employees, whereas only 12 posts were available vacant for Class III employees. Two posts were vacant for Personal Assistant and 07 posts were vacant of Stenographers, which were advertised by the Selection Committee.
204. Therefore, examination dated 04.07.1999 was conducted under control and supervision of the petitioner with irregularities and embargo was put on the competent and suitable candidates, who might have been selected if fair examination and evaluation would have been conducted by the petitioner. The petitioner has scuttled the chance of such candidates. Thus he has denied equal opportunity of job to such candidates in violation of provisions of Article 16 of the Constitution of India, which provides as follows:
16. Equality of opportunity in matters of public employment.--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
[(4-A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.] [(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.] (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
The petitioner has issued appointment letters by preparing select list, who were otherwise unsuccessful. Their marks were enhanced by interpolations/overwriting. Thus, the petitioner being appointing authority is responsible for misconduct according to charge Nos. 1 to 4 framed against him.
There is no substance in the argument of learned Counsel for the petitioner that chance of elevation was scuttle by the inspecting Judges. It is possible that on the basis of misconduct of the petitioner, he was not elevated by this Court.
205. Learned Counsel for the petitioner has argued that the then District Judge Sri Vikramjeet Singh prepared roaster after holding examination for promotion of Class IV employees. Sri Vikramjeet Singh as PW-1 has proved this fact that he reported the matter to the Hon'ble Inspecting Judge Hon'ble Justice Ikramul Bari and on the basis of observations made by his Lordship, select list prepared by the petitioner of 21 candidates was cancelled by him on 17.01.2000. Therefore, roaster prepared by him, became redundant and lost its efficacy.
206. Moreover, it is relevant to mention here that this Court, in Civil Misc. Writ Petition No. 35455 of 1999: Anjuman Himayat Chapracian Vs. The District Judge Ghazipur, which was finally disposed vide its judgment passed in the year 1999, directed the District Judge Ghazipur that "he will ensure that before making any further appointment of the direct recruit, whose names appear in the select list, 15 % of the vacancies are filled from out of Class IV post of promotion after test as provided under the law. If no test has yet been taken for promotion of the Class IV employees, it shall be held within a period of two months from the date a certified copy of this order is produced before him."
207. Perhaps the District Judge Sri Vikramjeet Singh in compliance of order of this Court, prepared the roaster, which became ineffective due to the fact that select list dated 17.01.2000 prepared by the petitioner was cancelled.
208. Learned Counsel for the petitioner has further argued that Civil Appeal No. 3381 of 2006: Virendra Kumar and others Vs. State of U.P. and another was decided by Hon'ble Supreme Court on 14.08.2006 along with Civil Appeal No. 3387 of 2006 and Civil Writ Petition No. 16465 of 2000 and Civil Misc. Writ Petition No. 3481 of 2000 preferred by the selected candidates, whose appointment letter had been terminated on 17.01.2000, were remanded to this Court.
209. We have perused order passed by the Hon'ble Apex Court. Hon'ble Apex Court directed that petitions be decided afresh by mentioning that we wish to say no more than only stating that the selections, if otherwise validly made, cannot be annulled or vitiated on the grounds mentioned in the orders of learned Single Judge. On this ground alone, the orders of learned Single Judge, affirmed by Division Bench by the impugned judgments, have to be set aside and it is ordered accordingly. It was also directed by Hon'ble Supreme Court that these two writ petitions would be placed for hearing before a Division Bench of this Court.
210. In Civil Misc. Writ Petition No. 3481 of 2000: Rajesh Kumar Yadav and two others Vs. District Judge, Ghazipur, Hon'ble Supreme Court has observed that learned Single Judge of this Court recorded finding that in case such a selection, where 75 to 80 percent of the persons selected belong to the one single caste or community just cannot upheld by rational Court.
211. It was also observed by Hon'ble Supreme Court that learned Single Judge observed in Writ Petition No. 16465 of 2000 that out of the twelve petitioners, who claim to have been selected for appointment to the Civil Court, Ghazipur on Class III posts at least nine belongs to the Yadav castes. In my opinion, this fact alone is sufficient to vitiate the selection.
212. Learned counsel for the petitioner has further argued that all the 21 candidates selected by the petitioner had worked at Judgeship Ghazipur.
213. Learned Counsel for the respondents in pursuance to the order dated 22.05.20018 filed Supplementary Counter affidavit and it was apprised to the Court on affidavit of OSD (J) (Litigation), High Court, Lucknow Bench, Lucknow dated 23.05.2018 that Civil Misc. Writ Petition No. 3481 of 2000: Rajesh Kumar Yadav and two others Vs. District Judge, Ghazipur was withdrawn and dismissed by Division Bench of this Court vide order dated 26.04.2007.
214. Sri Sanjeev Kumar Sinha, Additional District Judge/Litigation Incharge, Ghazipur informed O.S.D. (J) (Litigation), High Court, Lucknow Bench, Lucknow that none of the candidates of select list prepared by the petitioner are working in the Judgeship at present, after cancellation of select list on 17.01.2002 (correct date is 17.01.2000). PW-1, the then District Judge Vikramjeet Singh has proved that he cancelled the select list on 17.01.2000.
Therefore, there is no substance in the argument of learned Counsel for the petitioner that all the candidates selected by the petitioner are working at present in the Judgeship Ghazipur.
215. Learned counsel for petitioner has argued that during the course of inquiry the petitioner sought copies of correspondence made by P.W.1-Shri Vikramjeet Singh, the then District Judge, who was the successor of the petitioner and correspondence and notes prepared by the Inspecting Judges. Likewise, on 04.05.2005 the petitioner sought time to place his additional arguments before the Hon'ble Inquiry Judge, but no opportunity was provided to him to place effectively his defence version. Inquiry report dated 04.05.2005 was furnished to the petitioner vide order dated 14.07.2005, therefore, it can be inferred that inquiry report was already prepared by the Hon'ble Inquiry Judge, while petitioner moved application on 04.05.2005 for placing his additional arguments.
216. It is relevant to mention here that Hon'ble Mr. Justice Ashok Bhushan (now elevated to Hon'ble Supreme Court) was nominated by Hon'ble The Chief Justice as Inquiry Judge vide order dated 18.02.2005 on transfer of Hon'ble Mr. Justice S. K. Agarwal when the inquiry was at the stage of arguments. Evidence of both the parties were recorded before Hon'ble Mr. Justice S. K. Agarwal and other nominated Judges. It is mentioned in the inquiry report dated 04.05.2005 that 09.04.2005, 30.04.2005 and 01.05.2005 were fixed for hearing arguments. On 01.05.2005, Charged Officer as well as Presenting Officer were heard at length, therefore, there was no occasion for the Inquiry Judge to adjourn the inquiry proceedings on the basis of application moved by the petitioner on 04.05.2005.
217. It is also relevant for consideration that inquiry report dated 04.05.2005 was provided to the petitioner on 12.09.2005. It is possible that the inquiry report dated 04.05.2005 submitted by the Hon'ble Inquiry Judge was processed at the Registry of this Court and the Registry after obtaining orders of Senior Vacation Judge served the inquiry report dated 04.05.2005 on the petitioner.
218. It is pertinent to mention here that in para-30 of the writ petition the petitioner has himself mentioned that inquiry was conducted by Hon'ble Mr. Justice S. K. Agarwal who resigned in the year 2005 and it is only thereafter Hon'ble Mr. Justice Ashok Bhushan was nominated as Inquiry Judge, who heard the arguments on 01.05.2005. Although he has also mentioned that in fact between the period 11.01.2003 and 01.05.2005 for a period of about two years and four months the inquiry, though was concluded, did not proceed any further in as much as that no inquiry report was submitted. In the meanwhile, the petitioner retired on attaining the age of superannuation on 30.04.2003.
219. As far as, learned counsel for petitioner has vehemently argued that the petitioner applied for supply of correspondences made by the District Judge (P.W.1) and the Inspecting Judges, Rule 12 of Chapter XL of the Allahabad High Court Rules, 1952 provides that copy of confidential papers could not be supplied by Hon'ble the Inquiry Judge. The said Rule 12 provides as follows:
"12. Confidential papers.-No copy of, or extract from any minute, letter or document on any administrative or confidential file of the Court shall be issued except under an order in writing of the Chief Justice countersigned by the Registrar. Every such order shall be kept in a file by the Registrar and he shall make a note thereof duly dated and signed by him on such minute, letter or document.
No copy of or extract from the minutes books of the Administrative committee shall be given except in accordance with any resolution passed at a meeting of the Committee.
220. The petitioner has not brought on record that he ever applied to Hon'ble the Chief Justice according to Rule 12 of this Chapter. The petitioner was permitted by Hon'ble Inquiry Judge to inspect the documents relied upon by the Presenting Officer in support of charges framed against the petitioner and relevant documents available in the Judgeship Ghazipur.
221. On the other hand, learned counsel for respondents has argued that the petitioner has to prove and show that what prejudice has been caused to him by non furnishing of the confidential correspondences made by P.W.1, the then District Judge and the Hon'ble Inspecting Judges of Judgeship Ghazipur. The then District Judge (P.W.1) has reported to this Court on the basis of facts observed by him after perusing the answer sheets of the selected candidates.
222. Likewise, the Hon'ble Inspecting Judges also took notice of the circumstances in which examination dated 04.07.1999 was conducted under the supervision of petitioner. The petitioner was unable to prove during the course of inquiry, what prejudice, was caused to him in this regard. On the other hand he participated in the departmental proceedings conducted by Hon'ble Inquiry Judge and cross-examined the witnesses produced by the Presenting Officer.
223. Learned counsel for the respondents has relied upon the above mentioned expositions of law propounded by Hon'ble Supreme Court and argued that it is well settled legal principle that the scope of judicial review by Courts in matters regarding disciplinary inquiry is very limited and the findings arrived at in a disciplinary inquiry can be interfered with only when there is no material for the said conclusion, or that on the said materials the conclusion cannot be that of a reasonable man.
224. It is further argued that violation of any and every procedural provision cannot be said to have automatically vitiated the inquiry held. The complaint of violation of procedural provision should be examined from the point of view of prejudice caused to the delinquent employee. It is also submitted that the petitioner participated in the inquiry proceedings and raised no objection for the examination of witnesses P.W.5 to P.W.8 and gave implied consent for their examination during the course of inquiry. Therefore, he would be deemed to have acquiesced to the Inquiry Judge in this regard. It is also argued by the learned counsel that confidential correspondences made by the then District Judge (P.W.1) and the Hon'ble Inspecting Judges was not mentioned in the charge sheet as evidence against the petitioner for proving charges-1 to 4. The Presenting Officer had not relied upon these confidential correspondences for proving the charges.
225. As far as charges No.5 to 10 could not be proved against the petitioner it has no relevance, because charges No. 5 to 10 were related to Judgeship Etah based on the complaint of complainant Shri Padam Singh Advocate, who had not cooperated with the Hon'ble Inquiry Judge during the course of inquiry.
226. It is also argued by the learned counsel for respondents that judicial officer is not an ordinary Government Servant and must be above suspicion as held by the Hon'ble Apex Court in the above mentioned expositions of law. As observed by us, sufficient material/ evidence was available against the petitioner for proving charges No.1 to 4 framed against him and Hon'ble Inquiry Judge recorded the findings on the basis of evidence adduced by the witnesses P.W.1 to P.W.8. It cannot be said that these findings recorded by the Hon'ble Inquiry Judge were perverse or against the evidence and material available on record. The case law relied upon by the learned counsel for petitioner is of no avail in the light of expositions of law relied upon by the learned counsel for petitioner.
227. On the basis of above mentioned discussions and exposition of law relied upon by learned Counsel for the respondents and material available on record, the impugned resolution passed by Full Court on the basis of inquiry report dated 04.05.1999 and in pursuance of such recommendations, order issued by Government of State of U.P. have been issued on the basis of proved misconduct of the petitioner and deduction of 25% pension of the petitioner, does not reflect any deficiency in decision making process.
228. This writ petition lacks and devoid of merits and is liable to be dismissed.
229. Accordingly dismissed.
Order Date:- 26.07.2018 Virendra/Arvind/Mustaqeem