JUDGMENT Sunit Ambwani, J.
1. Heard Sri Ashok Khare, senior advocate assisted by Sri V.D. Chauhan for petitioners in first two writ petitions, and Sri S.C. Misra for petitioner in Writ Petition No. 22340 of 2003 ; and Sri H.P. Upadhyay, Additional Chief Standing Counsel for respondents.
2. The matter relates to selections for Group 'C' posts for which advertisement was issued by District Magistrate, Jyotibaphule Nagar on 30.8.2001. The advertisement included 15 posts of Junior Clerks and 2 posts of Stenographers for appointment at Collectorate and the Offices of District Supply Officer. Jyotibaphule Nagar, All petitioners namely seven petitioners in Writ Petition No. 18789 of 2003 ; Petitioner Rajesh Kumar Verma in Writ Petition No. 21069 of 2003, and petitioner Sri Pankaj Dixit in Writ Petition No. 22340 of 2003 were eligible and applied. Whereas first six petitioners in first writ petition, belong to O.B.C. category, petitioner No. 7 belong to general category. The written examinations were held on 7.10.2001. All petitioners were declared successful in the written examination. Intimations were given to them to appear in the type test. All the petitioners appeared in type test held on 7.12.2001. The result of type test was published in newspaper 'Amar Ujala', dated 9.12.2001, in which petitioners were shown to have qualified. Subsequently by letters of communication dated 26.12.2001, petitioners were again required to appear in type test to be held on 3.1.2002. Thereafter, it appears that selections were kept in abeyance. A radiogram was issued by the State Government prohibiting appointments/promotions in the State. It was based upon interim order granted by Supreme Court in Writ Petition No. 488 of 2001, between Akhil Bhartiya Chhatra Yuwa Front v. Government of U.P. in which U.P. Ordinance No. 18 of 2001 was challenged. Thereafter State Government by Ordinance No. 2 of 2002, dated 6.6.2002 amended U.P. Act No. 21 of 2001. A number of writ petitions were filed in this Court with prayer that since Ordinance No. 2 of 2002 has removed the effect of amendments of U.P. Act No. 21 of 2001, the selection process should be completed. This Court vide judgment dated 4.10.2002 in Writ Petition No. 31852 of 2002. Ajit Kumar Singh and Ors. v. State of U.P. and Ors., allowed writ petitions and directed the State to complete selection process. Special leave petition against the said order was withdrawn from Supreme Court on 7.1.2002, and that a special appeal is pending in which no interim order has been passed.
3. A writ petition was filed by petitioners in which a prayer was made to complete the process of selection. The said Writ Petition No. 8913 of 2003, Sevendra Singh and Ors. v. State of U.P., is pending. A Contempt Petition was filed by some of the candidates namely Contempt Petition No. 502 of 2003, Ajit Kumar v. State of U.P. to enforce the direction issued in Ajit Kumar Singh's case (supra) in pursuance thereafter a radiogram dated 5.4.2003 was issued by Chief Secretary of U.P. to complete the selection process. In the aforesaid radiogram, after the State Government decided to complete the selection process. Inspite of proceeding to issue appointment letters in pursuance of selections which was already complete, and result declared, the District Magistrate has directed District Selection Committee and issued communication dated 24.4.2003, informing fresh type test to be held on 2.5.2003. At this stage petitioners challenged the communication dated 24.4.2003, (Annexure-18 to the writ petition) and have prayed that the result declared earlier, be implemented and petitioner may be given appointment letters in pursuance of their selection.
4. Counter-affidavit has been filed by Sri Ram Sevak Dwivedi, Tehslldar, Jyotibaphule Nagar, district Jyotibaphule Nagar admitting the averments. He has submitted in paragraph 9 that the result of written examination was received through the Institute of Management Development, U.P. a State Sector Undertaking, and as per merit list petitioners including other candidates were invited for appearing in the type test. After receiving the result of the written test, a merit list was prepared in accordance with reservation policy at that time as per merit list. Keeping in view the number of vacancies, 79 candidates were invited for typing/Hindi shorthand test. It was conducted on 23.11.2001, and only three candidates Sri Kapil son of Sri Ram Chandra Kashyap, Sri Dharmendra Singh son of Sri Charan Singh and Sri Ramesh Chander Upadhyay son of Sri J.P. Upadhyay were declared successful. Since the number of advertised vacancies could not be filled up, it was decided to hold another type test on 7.12.2001. In this test 71 candidates were invited for appearing in typing test and the list included the names of petitioner Nos. 2, 3 and 5 who could not attend previous test held on 23.11.2001 and were given permission to appear in the second test on 7.12.2001. On the basis of typing test held on 7.12.2001, the following candidates were found successful :
Roll No. Name of candidate S/Shri
1. 53000045 Rajesh Kumar Verma S/o Sri Krishna Kumar Verma
2. 53000516 Anlrudh Slngh S/o Sri Harpal Singh
3. 53000615 Rajlv Slngh S/o Sri Dharmveer Singh
4. 53001598 Vlshal Kumar S/o Virendra Kumar Gupta
5. 53002552 Sovinder Slngh S/o Sri Roop Slngh
6. 53002563 Ravi Raj S/o Sri Rajveer Singh
7. 53004684 Udal Manl Patel S/o Sri Masuradin Patel
8. 53005242 Sudhir Kumar Rat S/o Sri Brahmdev Rai
9. 53005259 Rajendra Prasad S/o Dr. Inderpal Singh
10. 53005596 Abhlshek Slngh S/o Sri TeJ Pa! Singh
11. 53005749 PankaJ Dlxlt S/o Sri Bq) Ram Sharma
12. 530002345 Rakesh Singh S/o Sri Raghuveer Singh
5. All petitioners in these three writ petitions, therefore, were found successful in the type test, which is a pro-efficiency test for appointment as clerks.
6. It is further stated in paragraph 10 of counter-affidavit, that complaints of serious allegations and mal-practices adopted in the test dated 7.12.2001 were received, and thus the then District Magistrate, Jyotibaphule Nagar, decided to hold another type test and directed Chairman of the Selection Committee (Additional District Magistrate (F and R), accordingly, by letter dated December 24, 2001 to hold fresh type test. In view of this decision the result was not published and no appointments was made. A third type test was held on 3.1.2002 but the result was not finalised in view of the radiogram dated 21st December, 2001, issued by the State Government which prohibited declaration of result. Thereafter, the State Government clarified by its order dated 12.4.2003 to issue appointment letters where the selection process was completed. It was directed that where the written tests have been completed, select list should be prepared on the basis of 'Samooh "Ga" Seedhi Bharti Chayan Prakriya Niyamawali, 2001' and reservation should be provided in accordance with Rule 4 (2) of the aforesaid rules, and in view of the directions, the Selection Committee decided to provide reservation to S.C., S.T. and O.B.C. classes as per existing rules and to invite suitable number of candidates for type test and accordingly a fresh type test was held on 2.5.2003. In the counter-affidavit at paragraph 19 it has been stated that in type test of 2.5.2003 candidates were called in the ratio of fifteen candidates against one post in accordance with communication issued by Sr. A.P. Verma, Chief Secretary, Government of U.P. on 13.12.2001, providing that where sufficient number of successful candidate are not available after shorthand/type test conducted by the District Selection Committee, the Committee may invite as many candidates for one post for shorthand/ type test, as considered necessary for declaration of final results at the earliest. The provisions for calling candidates thus, stood modified to that extent.
7. Sri Ashok Khare, senior advocate, appearing for petitioners submit, that petitioners were declared selected. The District Magistrate by order dated 24.12.2001, cancelled the type test purportedly on some complaints, but the respondents have not disclosed the nature of complaints and the allegations with regard to irregularities in the type test. The respondents have not disclosed any such material on the basis of which the District Magistrate had taken decision to cancel type tests. It appears that the District Magistrate directed the Chairman of the Selection Committee to produce type sheets of the successful candidates. The committee, however, produced only the type sheet of one Sri Nitish Pathak. The type sheet of complainant was not produced. The District Magistrate observed that to take care of the complaints and to maintain transparency and fairness, it will be proper to cancel the type test held on 7.12.2001, and that all the candidates should be required to appear in a fresh test, Sri Khare submits that this decision was grossly arbitrary, unfair and unreasonable. According to him the decision did not give any reasons in the absence of which an administrative order cannot be sustained. According to Sri Khare statutory rules provide for calling four candidates for one post for type test. The rules are specific clear and do not admit any ambiguity, and as such, the respondents could not have been directed fifteen persons to be called for type for one vacancy by way of an administrative order, According to Sri Khare in case the rules are not clear and there is any ambiguity, an administrative order can be made to fill the gap. In the present case, however, there is no such ambiguity. According to him calling fifteen persons for interview for type test for one vacancy, will permit gross arbitrariness as it will give a long hand of selection committee, to invite those, down below in the merit list, for subjecting them to type test, which is only a test to find out pro-efficiency of the person in typing, and is not the essential condition/eligibility to be appointed.
8. Sri H.P. Upadhyay, Additional Chief Standing Counsel on the other hand states that in order to take care of allegations in the complaints and to ensure transparency and fairness, earlier type test was cancelled. Petitioners were not prejudiced, as they were required to appear in the test again. There was no inter-se merit which was to be decided in the type test, and there was no allegations of any irregularity in the subsequent type test.
9. The advertisement dated 30.8.2001 invited applications to the post of clerks under the Rules applicable for selections. The minimum qualification as eligibility criteria was intermediate examination. The pro-efficiency in type is a condition of appointment. The rules provide for calling only four persons against one vacancy for type test. The reason given by District Magistrate are no reasons at all. He actually expressed his displeasure against the Chairman of the Selection Committee who was subordinate to him, in failing to furnish the answer sheets of the selected candidates. The said annoyance resulted into an order to cancel earlier type test and thereafter he gave a wholly illusory reason of maintaining transparency and fairness, and cancelled the selection. The nature of complaints and irregularities in the earlier type test are not disclosed in the impugned order, or in the counter-affidavit. An administrative must contain reasons to support its conclusion. An order made on the ground that the authority was not given incomplete information cannot be said to be reasonable. Whereas the District Magistrate refers to complaints and irregularities, he neither provided the details of such irregularities nor has given any indication of any such material existing on record which may have satisfied him to pass the order. In fact he passed the order on his annoyance shown for the reason that no records were furnished before him. The order, therefore, is unreasonable and cannot be sustained. Learned standing counsel was granted time to file supplementary counter-affidavit to establish before the Court and to produce any material which may have been the reason to cancel the result of first two type tests. The State could not produce any such material.
10. The further reason given by the learned standing counsel is that the list required change on account of reservation policy. It is also a lame excuse as it has been held in Ajit Kumar Singh's case that the reservation of most backward amongst the reserved category was given up and by Ordinance No. 2 of 2002 the percentage of reservation as obtained before 1st amendment in 2001 was restored. The reservation is provided in appointments by applying the roster, to be applied at the time when the appointments are given and not before. On the date when the result was declared, i.e., 3.10.2002, U.P. Act No. 21 of 2001 was in force. The selected candidates were not given appointments. In the meantime. Ordinance No. 2 of 2002 restored the position which preceded before U.P. Act No. 21 of 2001 with regard to reservation, and that the amendments were rescinded with retrospective effect. The appointments have to be given according to the roster existing on date, and thus, there is no difficulty in giving the selectees appointments in accordance with the roster under the U.P. Act No. 4 of 1994 as amended upto the time of giving appointments.
11. For the aforesaid reasons the writ petitions are allowed ; the order dated 24.12.2001 of District Magistrate cancelling the selections and for holding a fresh type test cannot be sustained and is set aside. The respondents are directed to give appointments to the selected candidates, from out of the select list in pursuance of type test held on 23.11.2001 and 7.12.2001. The test held on 2.5.2003 is declared to be illegal and is quashed. All the selectees as aforesaid including petitioners shall be given appointments within a period of one month. There shall be no order as to costs.