Hon'ble Anil Kumar,J.
(Delivered by Hon'ble Anil Kumar, J.) Heard Sri Sourabh Lavania, learned Standing Counsel and Sri R.C. Saxena, learned counsel on behalf of respondents and perused the record.
By means of present special appeal, appellants have challenged the order dated 19.03.2010 passed in Writ Petition No. 2435 (SS) of 2000 (Sunil Kumar Soni and another Vs. State of U.P. and others).
In brief, the facts of the present case are that respondents/writ petitioners, Sri Sunil Kumar Soni and Rakesh Kumar approached this Court by filing Writ Petition No. 2435 (SS) of 2000, Sunil Kumar Soni and another Vs. State of U.P. and others, on the fact that Dy. Director, Animal Husbandry, Circle, District Faizabad published advertizement dated 10.08.1998 thereby calling applications for appointment on the post of Veternary Pharmacists in the pay scale of Rs. 2610-3540, and also 20 posts in Devi Patan Circle. Qualification for the appointment on the said post was Intermediate with Biology or with Agriculture.
The case of the writ petitioners/respondents was that they belong to backward class, they fulfilled all the relevant and essential qualifications, and accordingly they submitted their candidature in response to the advertizement dated 10.08.1998 for appointment on the post of Veternary Pharmacists, on 13.12.1998 appeared in the written test with Roll No. 000042 and 000222 respectively.
On 18.02.1999, in daily Newspaper "Dainik Jagran" result was published by the official respondents and writ petitioners/respondents were declared successful. Accordingly, call letters were issued to them to appear for viva Voce Test on 25.02.1999 by Dy. Director, Animal Husbandry, Circle, District Faizabad, appeared in the said test and on 27.02.1999 final selection of backward caste candidate for appointment on the post in question has been notified and names of the petitioners find place in the said list at serial Nos. 3 and 6.
However, in spite of the said facts, the appointment orders were not issued to them, hence for redressal of their grievances they approached this Court (before Hon'ble the Single Judge) by filing Writ Petition No. 2435 (SS) of 2000.
In the said writ petition, on behalf of appellants who were respondents therein counter affidavit was filed. The stand taken is to the effect that in the selection in question a complaint has been made, accordingly, an inquiry was initiated by the Commissioner, Faizabad Division, Faizabad and on the basis of the inquiry report vide order dated 29.11.1999, the said authority had taken a decision that not to cancel the entire process of selection rather only the interview shall be cancelled, since the commission of irregularities were found to be proved in the said interview and accordingly it was requested to the State Government to fix some other date for holding interview with a view to make fair, proper and impartial selection without any favoritism/nepotism.
Further, the said writ petition along with other matters, namely, Writ Petition No. 2843 (SS) of 2000, Writ Petition No. 3182 (SS) of 2001, Writ Petition No. 172 (SS) of 2003, Writ Petition No. 5754 (SS) of 1999 and Writ Petition No. 562 (SS) of 2005, in which controversy involved are identical in nature were connected together, heard by learned Single Judge and by a common judgment dated 19.03.2010, the order dated 29.11.1999 passed by Commissioner, Faizabad Division, Faizabad has been quashed. And above noted writ petitions are allowed except Writ Petition No. 562 (SS) of 2005 (Mahesh Babu Vs. State of U.P.). The finding given by learned Single Judge while allowing the said writ petitions is reproduced hereinbelow:-
"It is not disputed that the selection/interview held on 25.2.1999 was cancelled by the Commissioner, Faizabad Division, Faizabad, on the basis of enquiry held by him in pursuance of the directions of the State Government. It is also not disputed that in the said enquiry, it was found that one Indrajeet, one of the candidates, had attached forged sports certificate alongwith his application form. The case of the petitioners is that neither he participated in the examination nor in the interview and as such cancellation on this ground alone is not tenable in the eyes of law. The respondents have failed to show that apart from Indrajeet, forged certificates were found of the candidates, who were selected and their name find place in the select list. There is also no specific denial that name of said Indrajeet was included in the merit list of successful candidates.
It is true that the State is under no legal duty to fill up all or any of the vacancies. It is also true that the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not fill up the vacancies has to be taken bona fide for appropriate reasons. In the case of Asha Kaul (Mrs) and another vs. State of Jammu & Kashmir and others; 1993 SCC (L&S) 637 the Apex Court held that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce.
In Jai Narain Ram vs. State of U.P. and others; AIR 1996 SC 703, the Hon'ble Supreme Court has held that right to seek appointment to a post under Article 14 read with Article 16(1) and (4) is a constitutional right to equality. In another decision rendered in the case of R.S.Mittal v. Union of India 1995 Supp(2)SCC page 230, the Hon'ble Supreme Court pointed out that it is" no doubt correct that a person on the select panel has not vested right to be appointed to the post for which he has been selected. He has right to be considered for appointment. But at the same time, the appointment authority cannot ignore the select panel or decline to make the appointment on its whims."
On a careful considerations of the contentions on either side in the light of the material brought on record including the enquiry report constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, there seems to be no serious grievance of any malpractices as such in the process of the written examination-either by the candidates or by those who actually conducted them. There is no justifiable reason for cancellation of the selection of the petitioners, which has already been finalised on 26.2.1999 and the final select list of the candidates having been notified on 27.2.1999 after. Only irregularity, which has been found by the Inquiry Officer is that one Inderjeet attached forged games certificate. No other irregularity of any kind in respect of any selected candidate was found in the inquiry.
It is significant to mention that the State Government while passing the impugned order of cancelling the examination has also failed to consider the law laid down by the Hon'ble Apex Court in the case of Union of India and others v. Rajesh P. U. Puthuvalnikathu and another [(2003) 7 Supreme Court Cases 285] wherein it has been observed that where from out of selectees, it was possible to read out the beneficiaries of the irregularities or illegalities there was no justification in law to deny appointment to the selected candidates whose selection was not found to be, in any manner, vitiated for anyone or the other reasons. The en bloc cancellation is not permissible.
What transpires from the conduct of the respondents is that they have nothing on record to show the Court that the order of cancellation of selection list of the post in question was based on sound reasons and it was so done after enquiry. The competent authority must be satisfied after due enquiry that the selection has been vitiated on account of violation of rules or for the reason that it smacks of corruption, favourtism, nepotism or the alike but for doing this it must record the reasons. In the impugned order, no reasons have been assigned for cancellation of the selection and in view of the aforesaid discussion, it is not legally tenable.
For the reasons aforesaid, all the aforementioned writ petitions except writ petition no. 562[SS]2005; Mahesh Babu vs. State of U.P. and others are hereby allowed and the impugned order dated 29.11.1999, passed by the Commissioner, Faizabad Division, Faizabad. The writ petition no. 562[SS of 2005 stands disposed of for the reasons indicated hereinabove. "
Sri Sourabh Lavania, learned State Counsel while assailing the order dated 29.11.2011 submits that Hon'ble Single Judge while observing that the competent authority must be satisfied after due enquiry that the selection has been vitiated on account of violation of rules or for the reason that it smacks of corruption, favoritism, nepotism of the alike, completely failed to appreciate that there were serious complaints regarding the irregularities in the process of selection and on the basis of the complaints, due appropriate enquiry was got conducted through Deputy Development Commissioner, and on the basis of the findings given in the enquiry report with detailed reasons, the order dated 29.11.1999 was issued to cancelled the interview only and not the entire selection process, as such the learned Single Judge while quashing the order dated 29.11.1999, has committed manifest error of both fact and law.
He further submits that Hon'ble Single Judge has not given any reason for quashing of the order dated 29.11.1999, and further he failed to appreciate that the said order was issued on the basis of the illegalities reported and found to be established in the Enquiry Report of the Deputy Development Commissioner and to assign reasons in the order dated 29.11.1999 for cancellation of interview was not at all necessary. Further any selectee who has not been issued the appointment order, merely on the basis that his name has been included in the select list, cannot claim his appointment. In support of his argument, he placed reliance on the judgment of Hon'ble the Apex Court in the case of East Coast Railway and another Vs. Mahadev Appa Rao and others (2010) 7 SCC 678. Accordingly submitted by the Standing Counsel that present appeal be allowed.
Sri R.C. Saxena, learned counsel appearing on behalf of writ petitioners/respondents defend the order dated 19.03.2010 submits that both the petitioners who belong to Backward caste and being fully eligible and qualified, have been duly selected for the post of Veternary Pharmacist and their roll numbers also appear in the final select list of Backward caste candidates at serial no. 3 and 6, further the schedule which has taken place as well as the merit list published on the basis of the same does not suffer with any illegality, so justification on the part of official respondents/appellants to cancel the selection or the select list, the said action is in contravention of the law as laid down by Hon'ble the Apex Court in the case of R.S. Mittal Versus Union of India, reported in 1995 SCC (L & S) page 791 para 10 wherein it has been clearly held that it is no doubt that a person on the select panel has no vested right to be appointed to the post for which he has been selected but at the same time the appointing authority cannot ignore the select panel or decline to make the appointment on its whims and Hon'ble Supreme Court further held that when a person has been selected by the selection board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel, so, present special appeal is liable to be dismissed.
Selection has always been considered as an administrative function and the administrative authority is regarded as the best judge for it. It is the administrative authority that carries out the policy of the State. Public appointments are made to suit the administrator's purpose by appointing those he considers the best among the available candidates. As long as the function of such authority is within the law, courts will be slow to interfere; rather it has no business to interfere. Court also does not function as an appellate forum in selection matters.
It is settled law that by such selection, an empanelled candidate does not acquire any right of appointment to a post. The administration is free either to accept or reject the recommendations of Service Commissions. A select-list does not, thus, give right to selectees to appointment. It is, in fact, a list of candidates who could be immediately appointed. Selection, therefore, does not ensure appointment as there may be unpredictable happenings, one such is imposition of an economic ban in recruitments, other is abolition of a vacancy, another is return of a deputationist, and so on.
Although mere inclusion of a person's name in the select list does not confer any right on him to get appointment and therefore no mandamus would lie in his favor, but still a candidate have the right to challenge administrative orders and, if administrative authority takes a decision and the reasons for such decision are erroneous then such a decision can be interfered with by a court of law and if any State action was not above broad, the Courts did not hesitate to interfere and placed the administration on the right keel.
In the case of Jatinder Kumar Vs. State of Punjab, AIR 1984 SC 1850 Hon'ble the Supreme Court held as under:-
"Government must except recommendation of the Commission. If, however, the vacancy is to be filled in, the Government has to make appointment strictly according to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet-will except for other good reasons, viz., bad conduct or character. The Government cannot appoint a person whose name does not appear in the list. However, it is open to the Government to decide how many appointments will be made. The process for selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a Mandamus."
In Union Territory of Chandigarh Vs. Dilbag Singh, 1993 (1) SCC 1 "when a select list is cancelled the selectees are not entitled to an opportunity of hearing before cancellation. The Court though accepted that the selected candidates have a "legitimate expectation", it held that they have no idefeasible right to be appointed in absence of any rule to that effect. But, the decision/action by executives must be non-arbitrary and bona fide. The cancellation of the select list by the administration, on finding the list to be dubious, having been prepared in unfair and injudicous manner, was held bona fide and made for valid reasons".
Hon'ble the Supreme Court in the case of Munna Roy Vs. Union of India, 2000 SCC (L&S) 1098, denied administration the power to cancel the panel and ordered appointment of the applicant. In that case, the appellant applied for the advertised post as she had the requisite qualification. She became successful in the written test as well as in viva voce. The list of successful candidates included her name. However, the select list was cancelled without even informing the appellant on the ground that though the minimum qualification required was matriculate, she was a graduate; and thus dubious method was adopted for being selected. The cancellation was challenged before the Tribunal which allowed the petition. The High Court however held in favor of the appellant Union of India. When the matter reached the Supreme Court, the Apex Court observed :
"We really fail to understand that if a candidate possess a qualification higher than the required qualification and the advertisement itself had prescribed the same then how can the authority came to the conclusion that selection has been made by adopting a dubious method."
The Apex Court held that the reasons for cancellation of the select panel was not germane and ordered, that the Tribunal order granting the benefit be implemented.
In the case of East Coast Railway and another Vs. Mahadev Appa Rao and others (2010) 7 SCC 678, Hon'ble the Supreme Court in respect to cancellation of recruitment process and the power of judicial review on the ground of arbitrariness after taking into various judgments as rendered by Ho'ble the Apex Court earlier held as under (relevant portion reproduced):-
Para No. 26 - If a test is cancelled just because some complaints against the same have been made howsoever frivolous, it may lead to a situation where no selection process can be finalized as those who fail to qualify can always make a grievance against the test or its fairness. What is important is that once a complaint or representation is received the competent authority applies its mind to the same and records reasons why in its opinion it is necessary to cancel the examination in the interest of purity of the selection process or with a view to preventing injustice or prejudice to those who have appeared in the same. That is precisely what had happened in Dilbagh Singh's case (supra). The examination was cancelled upon an inquiry into the allegations of unjust, arbitrary and dubious selection list prepared by the Selection Board in which the allegations were found to be correct.
Para No. 28 - That is not, however, the position in the instant case. The order of cancellation passed by the competent authority was not preceded even by a prima facie satisfaction about the correctness of the allegations made by the unsuccessful candidates leave alone an inquiry into the same. The minimum that was expected of the authority was a due and proper application of mind to the allegations made before it and formulation and recording of reasons in support of the view that the competent authority was taking.
Para No. 29 - There may be cases where an enquiry may be called for into the allegations, but there may also be cases, where even on admitted facts or facts verified from record or an enquiry howsoever summary the same maybe, it is possible for the competent authority to take a decision, that there are good reasons for making the order which the authority eventually makes. But we find it difficult to sustain an order that is neither based on an enquiry nor even a prima facie view taken upon a due and proper application of mind to the relevant facts. Judged by that standard the order of cancellation passed by the competent authority falls short of the legal requirements and was rightly quashed by the High Court.
Para No. 30 - We may hasten to add that while application of mind to the material available to the competent authority is an essential pre-requisite for the making of a valid order, that requirement should not be confused with the sufficiency of such material to support any such order. Whether or not the material placed before the competent authority was in the instant case sufficient to justify the decision taken by it, is not in issue before us. That aspect may have assumed importance only if the competent authority was shown to have applied its mind to whatever material was available to it before cancelling the examination. Since application of mind as a thresh-hold requirement for a valid order is conspicuous by its absence the question whether the decision was reasonable having regard to the material before the authority is rendered academic. Sufficiency or otherwise of the material and so also its admissibility to support a decision the validity whereof is being judicially reviewed may even otherwise depend upon the facts and circumstances of each case. No hard and fast rule can be formulated in that regard nor do we propose to do so in this case."
In the instant case, from the material on record, it clearly established that Dy. Director Animal Husbandry, Circle Faizabad, District Faizabad without waiting for the outcome of the enquiry report, passed the order dated 29.11.1999 in utter haste without ascertaining whether the irregularities regarding submission of forged game certificates were identifiable or not. Further, the impugned order is of a prior dated i.e. 29.11.1999 whereas the enquiry report is of subsequent date i.e. 4.12.1999. In the inquiry also, the Inquiry Officer did not find any irregularity or any favoritism etc. and he could only point out that one candidate Inderjeet had attached some forged certificate regarding sports. However, the facts still remain that the above Inderjeet neither appeared in the written test nor in the interview and he has also not been selected. The above alleged irregularity in any way cannot be held to be a valid ground for cancelling of the selection in question that too from the stage of interview and directing to hold a fresh interview.
Further, from the perusal of the order dated 29.11.1999 passed by Commissioner, Faizabad Division, Faizabad which is annexed as Annexure No. 4 to the special appeal reveals that the same is a non-speaking order, no reason whatsoever has been assigned by the said authority to cancel the interview which has been already held and directed for holding a fresh interview for the purpose of appointment on the post in question is anorder which is arbitrary in nature, thus violative of Article 14 of the Constitution of India as well as to the principle of Natural Justice in Breen Vs. Amalgamated Engg. Union, reported in 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd.Vs. Crabtress, reported in 1974(4) IRC 120 (NIRC) it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at".
Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the later before the Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other worlds, a speaking out, the inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance.
For the foregoing reasons, we are of the considered opinion that there is neither illegality nor infirmity in the impugned order dated 19.03.2010 passed by learned Single Judge.
Thus, present appeal lacks merit and is dismissed.
Order Date :- 16.9.2011 Ravi/ Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 770 of 2010 Petitioner :- State Of U.P. Thru Secretary Animal Husbandry & Ors.
Respondent :- Sunil Kumar Soni S/O Chhotey Lal & Anr. ( S/S 2435/2010 ) Petitioner Counsel :- Standing Counsel Respondent Counsel :- R.C. Saxena,Mahesh Chandra Hon'ble Uma Nath Singh,J.
Hon'ble Anil Kumar,J.
(C.M. Application No. 109159 of 2010) As there is no objection to the application for condonation of delay in filling the special appeal being allowed, it is hereby allowed and thus the delay as pointed out by the Registry is condoned.
Order Date :- 16.9.2011 Ravi/