Bahori lal & Ors. vs State of U.P. & Ors.

There is a bunch of writ petitions, relating to the selection of ''Safai Karmis'' in different districts in the State of U.P. This portion of the bunch relates to the District Bahraich and since common question of fact and law are involved in these writ petitions, they are decided together, the leading case being W.P. No. 8077(SS) 08 Bahori lal and others v. State of U.P. and others.

The petitioners have challenged the order of the Principal Secretary, Department of Panchayat Raj, Govt. of U.P. opposite party No. 1 dated September 22, 2008, cancelling the entire select list of Safai Karmi, on the basis of report of the Commissioner, Devi Patan Mandal, Gonda, submitted on the complaints received by the District Magistrate about irregularities in the selection.

The petitioners were selected in the selection held on the basis of advertisement issued by the District Panchayat Raj Officer, Bahraich. The opposite party No. 5 published the select/merit list of the candidates, in which the names of the petitioners were given according to their merit position. The result was published in the news paper as well as pasted on the notice board. The main argument in this matter is, that the selection held of thousands of candidates, was cancelled in one stroke without there being sufficient material before the authorities to take such a decision. The challenge has been made through these writ petitions to this cancellation on the ground of arbitrariness, mala fide, undue haste and non application of mind.

Sri Rakesh Kumar Chaudhari, who is the counsel in most of the writ petitions including the leading one, mentioned above, addressed this Court for the petitioners and the Addl. Advocate General Sri Jaideep Narain Mathur assisted by Sri Majive Shukla, learned standing counsel advanced his arguments on behalf of the opposite parties.

The grievance of the petitioners, relating to Bahraich District, can be seen at micro level and for understanding the whole situation, macro level overview will have to be undertaken to clinch the issue and decide these cases. Whatever has happened in the case of District Bahraich, although is an independent study but it cannot be seen or examined in isolation, because there is a clear connectivity of the case of Bahraich with other Districts like Gorakhpur, Mirzapur and Sultanpur etc. In nutshell, the exercise of appointing ''Safai Karmi'' was undertaken at the State level and since the execution was to be done at the District level, hence selection in different Districts were undertaken on different dates but cancellation has been done almost simultaneously. For understanding the whole situation, the facts of the case are being narrated as below :

The State Govt. by a Government Order dated 132008 issued by Chief Secretary, Govt. of U.P. decided to sanction one post each of ''Safai Karmi'' in every revenue village with the total number of 1,08,848 in the State in the pay scale of Rs.2550 552660603200 on temporary basis for maintaining cleanliness in the villages. The object for creating the post given in the Govt. Order is to provide facilities of development in the villages and to stop migration to the urban areas. It was found necessary to provide proper drainage and cleanliness of the villages, for which no appointments were made so far and which effect the public health, sanitation and for prevention of communicable diseases. The Govt. Order provided that these posts shall be created on temporary basis up to 2822009 unless they were cancelled earlier. The ''Safai Karmi'' was ordered to be treated to be the employee and to be appointed by the respective Gram Panchayat. The service rules providing for process of appointment and other service conditions were to be notified separately.

By the Second Govt. Order dated 1142008 the State Govt. provided with the consent of the Governor of U.P. that the ''Safai Karmi'' to be appointed vide sanction of the posts by G.O. Dated 13 2008, shall be full time employee, who shall work under the Panchayat Raj Department. Their appointment shall be made by the District Level Officer, District Panchayat Raj Officer and that the service rules for their appointment and service condition, will be separately notified. The G.O. dated 132008 was modified accordingly.

By a third Government Order dated 6th June, 2008 the State Government notified with the approval of the Governor of the State that the method of appointment of Safai Karmis, in continuation to the directions given in Government Orders dated 132008 and 1142008 shall be the same as it is prescribed in the GroupD Employees Service Rules, 1985, as amended from time to time.

The GroupD Employees Service Rules, 1985 did not provide the method of recruitment of Safai Karmi. The sources of recruitment in Rule 6 for Sewakar included in item (a) is by direct recruitment, whereas for Safai Jamadar in item (b) is to be appointed by promotion from permanent peons. The educational qualifications for the post other than peon, messenger and cyclostyle operator is prescribed in Rule 10, which provides that there is no educational qualification required for the post but that preference shall be given to the person, who is educated and is at least able to read and write in Hindi ''Devnagri Script'', The method of recruitment provided in Rule 16 includes constitution of selection committee, which includes (1) the Appointing Authority (2) if the appointing authority does not belong to Schedules Castes or Scheduled Tribe, an officer belonging to Scheduled Castes and Scheduled Tribe, nominated by the appointing authority and (3) if appointing authority does not belong to O.B.C an officer of O.B.C nominated by the appointing authority, with a proviso that if in the department or establishment no such appropriate officer of the categories is available, on the request of the appointing authority the District Magistrate shall nominate such officer and if no such officer is appointed then an officer, who may be nominated by the Commissioner. The process of recruitment under Rule 19 provides for determination of vacancies by the appointing authority. Under subrule (1) the said vacancies shall be sent to the employment office and the appointing authority directly call such of those, who are registered in the employment office; and rule further provided publication of such advertisement on the notice board and in at least one local news paper. All the applications shall be placed before the selection committee. When selection committee receives under subrule (2) applications for both general and reserved categories, it shall interview the candidates and make selection on various posts. Subrule (3) provides that selection committee shall for the purposes of giving weightage to the retrenched employees shall give 5 marks for one year of completed service and 5 more marks for every completed year of service of the other full years but these marks shall not be more than 15. The number of candidates, who are selected under subrule (4) shall not be more than 25% of the number of advertised vacancies and that selection list will be prepared in accordance with the marks secured in the interviews.

The GroupD Employees Service Rules, 1985 do not provide for any written examination. The selections after wide advertisement are based only on the marks obtained by the candidates in interviews to be awarded by the selection committee constituted under Rule 6 of the Rules.

The GroupD Employees Service Rules, 1985 were amended by Notification dated 18th July, 2008. The amended rule inserted a new subrule (6) and also added subrule (8). It also amended Rule 16 providing for the constitution of the Selection Committee. The new Rule 10(6) provided that no person shall be eligible for appointment to the post of Sweeper unless he is found to possess requisite knowledge pertaining to the work of Sweeper and has good experience in that work. The new subrule (6) is quoted as below:

"(6) No person shall be eligible for appointment to the post of Sweeper unless he is found to possess requisite knowledge pertaining to the work of Sweeper and has good experience of that work."

With regard to constitution of selection committee the new subrule (16) provides as follows :

"16. For the purpose of direct recruitment to any post, the concerned District Magistrate shall constitute a Selection Committee as follows :

(i) An officer nominated by the District Magistrate Chairman.

(ii) An officer belonging to the Scheduled Castes or Scheduled Tribes nominated by the District Magistrate, if the Chairman does not belong to Scheduled Castes or Scheduled Tribes. If the Chairman belongs to the Scheduled Castes or Scheduled Tribes, an officer other than belonging to the Scheduled Castes or Scheduled Tribes, or Other the Other Backward Classes, shall be nominated by the District Magistrate.........Member.

(iii) An officer belonging to the Other Backward Classes shall be nominated by the District Magistrate, if the Chairman, does not belong to the Other Backward Classes. If the Chairman belongs to the Other Backward Classes, an officer other than belonging to the Other Backward Classes or Scheduled Castes or Scheduled Tribes shall be nominated by the District MagistrateMember.

Note The District Magistrate may, for any special reason, constitute more than one selection Committee."

It has been vehemently urged by Sri Rakesh Chaudhary, learned counsel for the petitioners that although the selection of the petitioners is quite proper and legal and has been made strictly in accordance with the provisions of G.O. dated 11th April, 2008 but because of the issuance of the impugned letter dated 15th September, 2008 contained in Annexure No. 1, the opposite parties Nos. 5 and 6 are not issuing appointment letters to the petitioners and other selected candidates. On account of this, some selected candidates have made representations dated 1992008 to the District Panchayat Raj Officer, Bahraich with the prayer for issuing orders of appointment/joining of the petitioners on the post of Safai Karmi. Instead of issuing any appointment letters in pursuance of the Select List dated 1392008, the opposite parties have cancelled the entire selection on political considerations with a mala fide intention and are going to hold a fresh selection as is evident from the impugned orders dated 2292008. He says that the cancellation of the Select List: dated 1392008 and making fresh selection for the post of Safai Karmi would be nothing except wastage of money and time for no valid reason.

Sri Chaudhary urged that the District Panchayat Raj Officer, Bahraich issued advertisement inviting application for selection and appointment of 1387 posts of ''Safai Karmi'' in the aforesaid pay scale. The last date for submitting application was 2172008. Out of 1387 posts of ''Safai Karmi'', 376 posts (27%) were reserved for O.B.C. candidates, 291 posts (21%) were reserved for SC candidates and 27 (2%) were reserved for Schedule Tribes candidates. The petitioners applied and were called for interview held from 18th to 31st August, 2008.

In all 8075 applications were received, out of which 5295 candidates were found eligible and called for test and interview held on different dates. The test included Nala Safai, drainage cleaning and cycling. The case of the petitioner is that during this process of selection, no irregularity was pointed out by any one. Neither any candidate nor any representative of the candidates in particular or of the public in general made any complaint about the selection. It was only after the process of selection was over and the select list was published that the political leaders of the District belonging to ruling Bahujan Samaj Party, namely Pawan Kumar Gautam, Bamsef District Chairman Bahraich, Balram GautamPresident, District Bahraich, B.S.P., K.K. Ojha, M.L.A. (B.S.P.) Fakharpur, Padam Sen Chaudhary, Chairman Agro, Waris Ali, M.L.A. Nan Para B.S.P, lal Mani Prasad, M.P., B.S.P, Asharfi lal GautamMandal Coordinator, B.S.P. Bahraich, Ram Sagar Akela M.L.A. Ekauna, B.S.P. Gulam'' Mohammad M.L.A.Kaisarganj, B.S.P. made some complaints.

A perusal of the impugned letter dated 1592008 would show that there are mainly two allegations viz. (1) that the candidates placed at serial No. 1381, 1386 and 1387 i.e. Km. Seema Chaudhary, Km. Sudha Chaudhary and Km. Santa Chaudhary belong to the same family, and (2) that the name of Pramod Kumar son of Bhagauti Prasad has been placed twice in the select list i.e. at serial No.991 and 402 respectively and as such one candidate has been selected twice.

With regard to the allegation No.1 that the candidates placed at serial No. 1381, 1386 and 1387 in the select list i.e. Km. Seema Chaudhary, Km. Sudha Chaudhary and Km. Sarita Chaudhary belong to the same family, the counsel for the petitioners argued that there is no provision prohibiting more than one candidate of the same family from being selected for the post of Safai Karmi. Moreover, against 75 posts reserved for O.B.C. women candidates under 20% quota and only 51 applications were received and all having been found eligible were selected. There is no irregularity in selecting the candidates placed at serial No. 1381, 1386 and 1387 in the select list who belong to O.B.C. category in as much as the selection of Km. Seema Chaudhary, Km. Sudha Chaudhary and Km. Sarita Chaudhary does not infringe right of any other candidate of that category. It is submitted that no candidate has made any complaint against the selection of these candidates.

As far as the allegation of placing the name of Pramod Kumar son of Bhagauti Prasad at serial No.991 and 402 in the Select List, it is submitted that Pramod Kumar had submitted two applications on different dates and, as such, he was allotted two roll numbers and two letters for interview were issued to him. He appeared for interview twice on different dates and was placed at two places in the Select List i.e. at serial No.402 with 108 marks and at serial No.991 with 93 marks because this error could not be marked or pointed out during the course of selection among 8075 candidates. The aforesaid error cannot be said irregularities in the Selection and the entire selection cannot be cancelled on such a frivolous ground.

A counter affidavit has been filed by one Awadhesh Bahadur Singh, presently posted as District Development Officer, Bahraich, on behalf of the opposite parties. The main contention of the State is that the complaints made were genuine and the inquiry conducted was proper and complete. In paras13, 14, 15, 16 and 17 specific instances of irregularities have been shown by the opposite parties. It has been contended that on the basis of these irregularities the decision of cancellation of the selection was totally justified. It is not necessary, according to the opposite parties, that each and every case be scrutinized and only then selection may be cancelled. It is enough to see generally that irregularities were committed and the petitioners being only selected candidates, no right to challenge the cancellation vests in them. Authorities were shown of Hon''ble Apex Court and of various High Courts to demonstrate that the petitioners have no right to file these writ petitions. It was not maintainable and liable to be dismissed.

On the side of the petitioners, reliance was placed on a decision of Hon. Apex Court reported in 2001 AIR SCW 2329 Munna Roy v. Union of India, in which in para 2 of the judgment the Apex Court has held as under :

"The High Court while interfering with the order of the Tribunal has taken into consideration the fact that mere inclusion of a person''s name in the list does not confer any right and therefore, mandamus cannot be issued. The aforesaid enunciation as a proposition of law cannot be disputed. However, if the Administrative Authority takes a decision and the reasons for such decisions are erroneous then such a decision can be interfered with by Court of Law".

"...........................................We have no hesitation to come to a conclusion that the reasons which weighed with the authorities to quash the selection are not germane and must be held to be arbitrary and irrational."

In Union of India and others v. Rajesh P.U., Puthuvalnikathu and another reported in (2003) 7 SCC 285 : (AIR 2003 SC 4222), their Lordship''s of Hon''ble Supreme Court laid down as under :

"On a careful consideration of the contentions on either side in the light of the material or the materials brought on record, including the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions which report itself seems to have been also produced for the perusal of the High Court there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. 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 that. If the Board itself decided to dictate the questions on a loudspeaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of the written examination itself, except noticing only certain infirmities only in the matter of evaluation of answersheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears that the Special Committee has extensively scrutinized and reviewed the situation by reevaluating the answer sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment there was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an allpervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to" be carried away by irrelevancies, giving a complete goby to contextual considerations throwing to the winds the principle of proportionality in going further than what was strictly and reasonably to meet the situation, In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.

In Director, SCTI, for Medical Science and Technology and another v. M. Pushkaran (2008) 1 SCC 448 : (AIR 2008 SC 559) Hon''ble Apex Court has ruled as under:

"The law operating in the field in this behalf is neither in doubt nor in dispute. Only because the name of a person appears in the select list, the same by itself may not be a ground for offering him an appointment. A person in the select list does not have any legal right in this behalf. The selectees do not have any legal right of appointment subject, inter alia, to bona fide action on the part of the State. We may notice some of the precedents operating in the field.

Their Lordships, referring the decisions operating in the field, in the State of Haryana v. Subash Chander Marwaha and Ors. (1974) 3 SCC 220 : (AIR 1973 SC 2216) in which it has been held that unless the relevant recruitment rules so indicates, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reason, R.S. Mittal v. Union of India 1995 Supp.(2) SCC 230 : (1995 AIR SCW 2044), which lays down that"...............It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims" as well as in Food Corporation of India v. Bhanu Lodh (2005) 3 SCC 618 : (AIR 2005 SC 2775) in which in para14 of the report it has been provided that merely because vacancies are notified, the State is not obliged to fill up the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies has to be taken bona fide and must pass the test of reasonableness so as not fail on the touchstone of Article 14 of the Constitution, further held as under

"It is, therefore, evident that whereas the selectee as such has no legal right and the superior court in exercise of its power of judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on the part of the employer. Each case therefore, must be considered on its own merit".

"The application of law would, therefore, depend upon the facts situation obtaining in each case. The judgment of the High Court in view of the aforementioned authoritative pronouncements cannot be said to be perverse. The respondent was to be offered with the appointment at a point of time when no policy decision was taken. There was, thus, no reason not to offer any appointment in his favour. Why the select panel was ignored has not been explained. Even the purported policy decision was not in their contemplation. We, therefore, do not see any reason to interfere with the impugned judgment".

In Gadananda Halo and others v. Momtaz Ali Sheikh and others and other connected matters reported in (2008) 4 SCC 619: (2008 AIR SCW 7302) Hon''ble Apex Court laid down as under :

"We have already shown in the earlier part of our judgment that there were proper advertisements issued and reasonable procedure was chalked out in the earlier meetings held by the authorities, even the guidelines were defined and the interviews proceeded along those guidelines. A mere expression of doubt only on the ground of large number of candidates appearing and their not being objectively and properly tested without any further material, in our opinion, cannot by itself render the whole selection process illegal".

"We also do not approve of the approach adopted by the learned Single Judge of the High Court as going all the way into the facts and the microscopic details not via the pleadings of the parties but on the basis of an unnecessary investigation. We also disapprove of the logic of relying on the finding arrived at only on the basis of sample survey. Such selection of large number of candidates could not have been set aside on the basis of sample survey. No evidence was available before us as to the proportion of this so called "sample survey".

It is a matter of coincidence that almost a similar situation has cropped up in the case of cancellation of appointment of constables in theCivil Police Recruitment, which were being heard and were finally decided on 812 2008. The special appeal preferred against which was dismissed on 432009. On being approached in the contempt matter, Hon''ble Supreme Court directed the State Government to comply with the orders passed by this Court in Writ Petition No.45645 of 2007. In this case Hon''ble Single Judge of this Court has raised a few question while reaching to the conclusion in allowing the writ petition and quashing the Govt. Order cancelling the recruitment by various Recruitment Board, in paras 70,71,72 before reaching the conclusion in para 74 of the judgment, which are worth repeating here :

"70. There is another aspect to this issue. It is suspected that large number of the candidates had paid illegal gratification to the officers to secure their selection. Who is the greater sinner?"

"71. The hapless unemployed youth who is open to allurements or, the well established, secured with regular salary and highly educated officers, who are in a dominant position?"

"72. Law of nature and gravity, both have at least one principle in common. All things travel from above to the ground below. All reforms and cure for malady has also to percolate from above".

"74. Suspicion, however, strong, cannot replace proof. Suspicion is a slippery floor one must not tread it unless wiped clean by hard facts in the nature of proof. In such a enormous exercise, with time constraints, there are bound to be errors, basic and peripheral, human or otherwise. Till motive is correlated to errors, other than peripheral or human, it would not be safe to base any action which leads to civil consequences. Except for suspicion, there is no shred of evidence connecting any of the selectees to the errors".

The finding of the Commissioner is that three candidates having roll Nos. 3335, 3336 and 3334, who were real sisters, have been selected and so he arrived to the conclusion that malpractices have been adopted in the selection process at a very large scale. He also pointed out some discrepancies against few candidates regarding their placement in S.T. category in place of O.B.C. and submission of two forms by one candidate namely Pramod Kumar. In para16 it has been mentioned that from one particular Gram Panchayat excessive number of candidates have been selected and taking into account these findings recorded by the Commissioner, the State Government on 22.9.2008 directed for cancellation of entire selection process.

It appears that complaints were made by the political leaders belonging to Bahujan Samaj Party. Besides it, not a single complaint against the selection was made by any of the candidates who appeared in the interview. There does not appear to be any justification for cancelling the select list dated 1392008 in one stroke vide order dated 2292008, by the State Govt., the order of the Commissioner, itself dated 2292008 as also by the District Magistrate, the Chief Development Officer, Bahraich and the District Panchayat Raj Officer dated 2292008, in undue haste and making fresh selection, which clearly shows that the impugned order has been passed on the dictate of the State Government, without proper application of mind and wholly in arbitrary manner. In such a situation, it cannot be said that malpractices have been adopted in the entire selection process. There may be some defects in few cases and those cases can very well be scrutinized but there was no obvious reason before the State Government to cancel the entire selection. The entire result was finally prepared and signed by fifteen members of five selection boards. No complaint was made by any unsuccessful candidate. Even if there had been large scale malpractices and bungling, large numbers of complaints by the unsuccessful candidates would have come and they would have raised the grievance. No irregularities were ever pointed out during the selection process till preparation of select list. In these circumstances the reasons, which prompted the authorities to quash the entire selection, must be held to be arbitrary and irrational. The argument of the learned counsel for the State that the State Government is not duty bound to fill up the vacancies, has no force for the reason that the State has no license of acting in arbitrary manner as held by Hon''ble Apex Court in the case of Shankarsan Das v. Union of India (supra) in which it has been held that unless the relevant recruitment rules so indicates, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reason., R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230 : (1995 AIR SCW 2044) which lays down that "...........It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims " as well as in Food Corporation of India v. Bhanu Lodh (2005) 3 SCC 618: (AIR 2005 SC 2775) in which in para14 of the report it has been provided that merely because vacancies are notified, the State is not obliged to fill up the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution.

The result was declared on 1392008 and the complaints were made by different public representatives dated 1592008. The names of the complainants as mentioned in the inquiry reports are as follows :

Sri Ram Sagar Akela, M.L.A. Ikauna, Bahraich/Shrawasti, Sri Waris Ali, M.L.A., Nan Para, Bahraich, Sri Gulam Mohammad, M.L.A. Kaiserganj, Sri lal Mani, M.P., Sri Asharfi lal Gautam, Mandal Prabhari, Bahujan Samaj Party, Devi Patan Mandal, Sri Balram Gautam, District President, Bahujan Samaj Party, Sri Padam Sen Chaudhari, State Minister, U.P. Agro, U.P. These complaints have been annexed with the counter affidavit filed by the State, a perusal of which shows that two things are glaring and common amongst all these complaints; firstly that all the complaints are dated 1592008 and secondly they bear similar language and raise similar nature of grievance. The first five complainants have signed on one application while rest of them have signed individually. One more interesting thing is that all the complaints are addressed to the Chief Minister and on the same very day i.e. 1592008. Sri Ashok Kumar Verma, Special Secretary, U.P. Government, has written letter (C.A.2) to the Commissioner, Devi Patan Mandal, Gonda that the aforesaid complaints have been received and the Commissioner has been directed to make an inquiry and send the report immediately. It is not clear as to when the complaints made so by the complainants reached to the Chief Minister and how and when the Chief Minister directed the Special Secretary Sri Ashok Kumar Verma to get an inquiry done. The copies of the complaints do not show any endorsement to the Special Secretary and the Special Secretary does not indicate in his letter to the Commissioner that as to who has directed him to get this inquiry done. In any view of the matter, there appears to be an electrifying efficiency in ordering an inquiry and the inquiry report was submitted in a haste only on 1992008, which is annexed as annexure CA 3 to the counter affidavit. Dr. Sachita Nand Pathak, Inquiry Officer Commissioner Devi Patan Mandal, in his four pages report, at page 3 enumerated alleged irregularities, which can be simply stated as follows :

(a) There has been payment of illegal gratification and six to seven candidates from one Gram Sabha have been selected;

(b) The candidates from other districts have been absorbed;

(c) Three members of one family have been selected.

(d) One Ram Pratap Singh son of Awadh Ram has been shown as scheduled tribe candidate but actually belongs to Banjara caste.

(e) One Sri Pramod Kumar son of Bhagwati Prasad has been (sic) two roll numbers.

Lastly a chart has been shown mentioning eight persons, whose address is shown as village andpost Anihatnasi post Kaiserganj, to show that from this one village, eight members have been selected.

A perusal of further contents of the inquiry report reveals that so far illegal gratification is concerned, inquiry officer has not made any effort to identify as to who offered the bribe and who accepted the same. No one has been named either by post, designation or by name as having taken the bribe. Not a single person has been identified or examined who is said to have made payment of illegal gratification. The allegations in the complaints are equally vague and since the allegations did not carry any name, it was required that an inquiry be conducted. The very purpose of the inquiry remains unfulfilled, if the inquiry officer is unable to identify even a person out of merely five thousand candidates, as to having paid the amount. The inquiry officer has not even made attempt to contact any of the candidates who according to the complainants had made the payment. There is no finding of the inquiry officer to the effect that he invited general public or the candidates to give him information about the same. Under the circumstances, the complaints even if has some substance, remain only a lurking suspicion in the mind of all concerned and unless something is proved by the inquiry, it cannot be said that any amount of bribe had been paid to any member of the panel of selectors.

On page4 of the inquiry report, in 4th line of the second paragraph, the inquiry officer has indicated as under :

(Vernacular matter omitted... Ed)

This goes to show that so far charge No. 1 is concerned, neither there was any material before the inquiry officer nor he has been able to prove anything.

So far second charge is concerned, it is that three ladies of one family have been selected. The inquiry officer has further stated that this charge has been proved. One fails to understand that how selection of three ladies from one family can be termed as a charge unless there is corollary accusation of any manipulation for the same. It is, but natural that if three ladies were selected, their names will be in select list and merely by tallying both these figures, it cannot be said that the charge has been proved. It is interesting to note that in the first place a simple ''fact of record'' is termed as a charge and simultaneously saying that it is available on record hence it is proved, is as misconceived as it can be. The inquiry officer has not disclosed as to what wrong has been committed and where is the bar that three ladies cannot be selected from one family, in the absence of any charge of manipulation. The complainants have not said anywhere that these three ladies have been selected as a result of masscopying, cheating or other malpractice. Merely saying that since the names of these ladies appear in the select list, hence corruption is proved, is as good as saying that since white colour is white and it has been found as white in the ''colour card'' hence charge of being white is proved. Statue of logic will be made to stand on its head, if this preposition of the inquiry officer is allowed to be accepted.

Similarly, he mentions that one candidate Babu lal son of Sri Ram Adhin R/o village Lalohi Nanpara, Bahraich, whose serial number is 244 and roll number is 8491, and belongs to scheduled caste, has been selected at the age of 42. Inquiry Officer says that at the most, his age could have been relaxed by five years, making eligible till 40 years; but his selection at the age of 42 is bad. In this regard he further goes to state that his mark sheets of the primary school shows his date of birth as 1561965 while his date of birth recorded in the employment exchange has been shown as the year 1984. His argument is that selection committee ignored the mark sheets of the primary school and believed the entry in the employment exchange as true, which is a grave irregularity. Since the selection committee has not made any effort to make any inquiry in this regard, hence the appointment of Sri Babu lal was illegal. It is strange that the inquiry officer, who himself has not made any inquiry in this regard, has termed the selection of Babu lal as bad in the absence of any inquiry on this point, if there are two certificates regarding his date of birth, then it was incumbent upon the inquiry officer also to have taken the statement of Babu lal and the explanation of the employment exchange, but the inquiry officer has very hastely declared that out of these two documents, one is genuine and the other is bad. It can be very easily seen that the inquiry has been made with undue haste, as if with predetermined mind, not to reach the truth but he proved that the selection was bad. Such a motivated inquiry can neither be relied upon nor should be allowed to become an instrument of destruction for the future of the candidates selected in the examination.

36.Similarly a chart, which has been drawn and annexed, at page 3 and 4 shows eight names of the candidates of one village, Kaiserganj, have been selected. Without calling the statement of eight these candidates or without alleging that these eight persons were interviewed together or their roll numbers were in serial and without making proper inquiry, nothing can be proved against these candidates. Simply because eight persons have been selected from one village, will not render the selection bad, ipso facto.

37.The inquiry officer at page7 again made a contradictory statement to the effect that since there was no bar for the candidates of outside districts to apply, hence eightytwo candidates from outside districts have been selected. One would wonder, what wrong has been committed in it. On one hand, inquiry officer himself says that there was no restriction of the outside districts from applying for the post. On the other hand, he says that total 1318 selected candidates, 82 were from other districts. What norm has been flouted and what rule has been broken, is unclear by this report.

One Promod Kumar son of Bhagauti, has been selected at two places, who was given two roll numbers 402 and 991 and two roll numbers 215 and 4351 respectively. His selection has been shown at two places. His interview was taken by Board No. 4 and again Board No. 2. It has also been said that this person had made two applications, hence this error has crept in the select list. From the very nature of the accusation, it appears that this is an independent case of inadvertence error, mistake or oversight. It is, but natural that a person will be given appointment only on one post. If by mistake, he has been selected twice, it can never be the basis for cancellation of the entire selection. The inquiry officer while giving his finding has, himself, stated that two applications were made by Promod Kumar.

Again one Ram Pratap Singh son of Awadh Ram, who belongs to ''Banjara community'' has been shown as schedule tribe candidate. The serial number 574 and roll number is 3105. His form shows him to be belonging to backward class candidate but he has been accommodated as a scheduled tribe candidate. Once again, this was a solitary case and in a selection to the magnitude of this kind where more than eight thousand candidates applied, such instances of singular mistake is a routine affair. Unless the inquiry officer is able to point out some malpractice or design by the selection committee in accommodating this person for ulterior motive and extraneous consideration, this error cannot become a reason to malign the whole selection.

In the second last paragraph inquiry officer contends that different boards had applied different standard to select the candidate and there was no coordination amongst them. He mentions that all the marks obtained by the candidate would not be coordinated and without removing the irregularities, the result was declared. He further recommends that except to cancel the whole examination and the result thereof, there was no other way to have made the selection valid. Hence he has recommended to the State Government that the whole selection be cancelled and fresh selection should be held while exempting such candidates, who had qualified the practical examination, from applying again. This report is dated 199 2008 and the State Govt. on 2292008 directed back the Commissioner, Devi Patan Mandal, Gonda to get the selection cancelled. In pursuance of which, Zila Panchayat Raj Adhikari, Bahraich, issued the impugned cancellation order dated 2292008, which gave the petitioner cause of action.

Learned counsel for the petitioner Sri R.K. Chaudhary has filed rejoinder affidavit and who while refuting all the arguments in the counter affidavit, has also annexed annexure RAI to his rejoinderaffidavit, which makes a very interesting reading.

There is a bunch of letters/recommendations sent by different representatives including the complainants mentioned at page14 of the judgment as also in the inquiry report. At page 21 of RA1, list of thirtyeight candidates, has been forwarded by Sri Ghulam Mohd., M.L.A. B.S.P. to the Zila Panchayat Raj Adhikari, Bahraich. He has very humbly requested the said officer to appoint these thirtyeight candidates on the post of ''Safai Karmi'' in the aforementioned examination. Mr. Ghulam Mohd. M.L.A. is one of the complainants on whose behest the inquiry has been conducted.

On page26, one Balak Ram Saroj, President, B.S.P., Bahraich, has made recommendation in writing, of the name of Bajrangi son of Hardev. Again on page29 one more B.S.P. Zila Adhyaksh Sri Balram Gautam has recommended a list of 13 candidates to the Zila Panchayat Raj Adhikari for appointment. Sri Balram Gautam is also one of the complainants on whose request the inquiry has been conducted.

Another leader of B.S.P. Sri Ajai Kumar Gautam has written letter on page31 recommending the case of Madhav Ram Gautam son of Chhotey lal. At page 32 Sri Krishna Kumar Ojha, M.L.A., Fakharpur, Bahraich has sent a recommendation to the District Panchayat Raj Officer, Bahraich, recommending the case of Madhav Ram Gautam son of Chhotey lal. It is interesting to note that Madhav Ram Gautam has been able to get his name recommended by two M.L.A''s. From page34 to 38, list of 107 candidates, has been recommended for appointment to the Chief Development Officer, Bahraich, by Sri Balram Gautam, District President, B.S.P., Bahraich.

The aforesaid recommendations have been made along with roll numbers of the candidates and their parentage to the officers concerned in the selection process. The inquiry officer does not say anything about these recommendations.

It appears that there is nothing to distinguish between the persons who have made illegal recommendation and the persons who have made the complaints. To a certain extent, their names are available on both the sides. On one hand, these people tried to get their wards appointed illegally applying pressure tactics using the name of their party and their post; on the other hand, they dashed of the letters to the Chief Minister alleging malpractice and irregularities in the said selection. Any inquiry conducted on the behest of such Characters can only be termed as motivated. No credence can be given to these complaints and no reliance can be placed to the consequential inquiry. It appears that the complaints were made by the jilted agents of those who had undertaken task of getting their wards cleared in the selection and who, failing in their mission, had no option except to get the whole edifice destroyed on which they had built their castles in the air. The whole exercise of cancellation stings of mala fide and self interest as against clarity and public interest.

On the basis of the aforesaid discussions, it is manifestly clear that the inquiry conducted by the Commissioner is only an eyewash, motivated and on the behest of political and powerful public representatives. The persons, who have made the complaints did not want a fair inquiry instead wanted cancellation of the select list. The purpose of these political persons complainants was to get their wards/favourites appointed on the said post. For this reason, before cancellation of the select list, a sham inquiry was needed and an inquiry report was required by the State Govt. to be able to pass the order of cancellation. The time, which was taken by the Commissioner in conducting the inquiry was absurdly short. If one includes the date directing the inquiry i.e. 1592008 and date of submission of the inquiry report i.e. 1992008, is maximum four days. Otherwise, within three days inquiries have been completed. The inquiry, in which more than eight thousand candidates had applied, cannot be completed within a short span of three days by any stretch of imagination. The proper information to the public at large and the bare minimum time required for their response, has not been given in this inquiry. Therefore, it can safely be said that this inquiry is bad also because it is not humanly possible to conduct an inquiry of such magnitude. The sheer volume of queries would have bogged down any officer for months together if the inquiry on the allegations had to be checked impartially and emperically. It can safely be assumed that cogent and reliable material was not available with the State Govt. on 2292008 when the cancellation order at the highest level was taken by the State Government. The action was taken simultaneously by the State Government, the Commissioner and the Panchayat Raj Adhikari on the same day i.e. 2292009 for cancelling the selection of 1387 ''Safai Karmis'' of district Bahraich. These orders, in view of above were unreasonable, arbitrary and malafide, hence unsustainable in law.

Consequently all the writ petitions succeed and are allowed. The impugned orders of the State Govt. dated 1592008 and 2292008 contained in annexure 1 and 2 respectively and the order dated 2292008 passed by Zila Panchayat Raj Adhikari contained in annexure No. 3, to the writ petitions, are, hereby, quashed. The respondents are directed to give appointments in pursuance of the select list dated 1392008 of District Bahraich, within a period of one month from the date a certified copy of this order is placed before the authorities concerned.

There will be no order as to cost.