Dinesh Kumar vs State of U.P.and Another

Devi Prasad Singh, J.—The controversy relates to appointment against the regular vacancies of Class III and Class IV posts in the Judgeship of district Barabanki. Petitioners have approached this Court under Article 226 of the Constitution of India with the grievance that vacancies have been filled up by learned District Judge, Barabanki for extraneous reasons and considerations. Certain persons have been selected and appointed who are close relatives of presiding officers or other employees working in the judgeship of Barabanki. While preferring the writ petition it has been also pleaded by the petitioners that entire selection has been done in violation of relevant Service Rules. However, when the records were summoned and perused by this Court it was found that in substantial number of the copies, overwriting and interpolation have been done. Marks (grade) have been granted by use of different colour of pencil while examining the copies of candidates for Class IV posts and large number of copies of Class IV candidates have been kept without evaluation. While approaching this Court under Article 226 of the Constitution of India, Writ Petition No.7017 (S/S) of 2004 has been filed agains the selection and recruitment of Class III posts and rest of the Writ Petitions have been filed challenging the validity of selection of Class IV posts.

Writ petition No.7021 (S/S) of 2004 shall be leading writ petition. In this petition counter affidavit has been filed by learned District Judge as well as Chairman of the Selection Committee covering controversy under these bunch of writ petitions.

The short matrix of the case is that the District Judge, Barabanki had, by advertisement dated 30th July, 2004 invited applications for recruitment on the post of Stenographer, Process Server, Clerk and Driver. While advertising the vacancy it was also provided that the candidates should personally deposit the application form in the office of District Judge, Barabanki and obtain the admission card. The date of examination as well as examination center were not disclosed in the advertisement. The advertisement also does not reveal the number of regular vacancies of various cadre, which the District Judge, Barabanki had proceeded to fill up through regular recruitment. All ad hoc employees working in the Judgeship of Barabanki were also permitted to submit their applications.

In response to advertisement dated 30th July, 2004, a copy of which has been filed as Annexure5 to the writ petition the petitioners have also applied for the posts in question but failed to get success. The examination was held on 29.8.2004 and the result was declared on 4.11.2004. However, when the petitioners have come to know that certain malpractices were adopted during the course of examination and marks were altered they have approached this Court challenging the entire selection process.

While arguing the case on merit on behalf of petitioner of Writ Petition No.7021 (S/S) of 2004, Shri Ramesh Chandra, learned counsel for the petitioner submitted that no reservation was provided for physically handicapped persons in pursuance to relevant Government Order. Petitioner of the said writ petition had applied for the post of Process Server. According to petitioner''s counsel, Shri Ramesh Chandra, as per instruction issued by District Judge, Barabanki himself relating to the examination in question, a copy of which has been annexed as Annexure RA2 to the rejoinder affidavit, only those candidates shall qualify for the post of Process Server and Driver who shall qualify the written test as well as interview both. Petitioner''s counsel submits that all the candidates in view of averments contained in para 10 of the counter affidavit filed by Syed Mazhar Abbas Abdi, were qualified for interview but no passing marks were provided to them. Accordingly, the submission is learned District Judge, Barabanki had acted in violation of Condition No.28 framed by himself. For success in written test it was incumbent upon the learned District Judge, Barabanki to prescribe qualifying marks. The submission is, learned District Judge had not done this for extraneous reasons to accommodate the persons with pick and choose method. It has been also submitted by Shri Ramesh Chandra, learned counsel for the petitioner that the advertisement provides the qualifying age of the candidates between 18 to 35 whereas Rule 8 of the U.P. Subordinate Civil Court Inferior Establishment Rule 1955, the qualifying age is between 1830. It has been also submitted that the select list by providing reservation was prepared in accordance to notification dated 29th March 1994 as evident from the select list, which has been filed as Annexure5 to the writ petition. Petitioner''s counsel submits that the notification dated 29th March 2004 has been repealed and superseded by subsequent notification dated 22.10.2001, a copy of which has been filed as Annexure RA1 to the rejoinder affidavit. The notification dated 22.10.2001 was issued in pursuance to power conferred by amending Act No.21 of 2001 by which HINDI (hereinafter referred as the 1994 Act) was amended. By the notification dated 22.10.2001 a roster system has been provided by the Government to enforce reservation. Accordingly, the submission is that the reservation has not been provided by the learned District Judge by applying the roster system provided by existing Government Order. Learned District Judge, Barabanki had acted relying upon a Government Order which was repealed long back. It has been also submitted by petitioner''s counsel, Shri Ramesh Chandra that interview was held for about 30 hours to fill up the Class IV vacancies in which 2,479 candidates were appeard. The interview of such a large number of candidates was completed in 1800 minutes. Less than one minute was provided to a candidate while holding the interview. According to petitioner''s counsel horizontal reservation has not been provided by the learned District Judge, Barabanki to the reserved category candidates keeping in view the Government Order dated 30th September 1997 for physically handicapped persons. The copy of Government Order dated 30.9.1997 has been filed as Annexure7 to the writ petition.

Learned counsel for the petitioner had relied upon the Apex Court judgments reported in 1995 (supp) 1 SCC 206, Satpal Biswa Ranjan Sahoo v. Sushanta Kumar Dinda. Petitioner''s counsel has also submitted that pencil was used in the matter of Class IV candidates with the purpose to alter the marks/grade for extraneous reasons and considerations. It has been also submitted that alteration of marks were done for extraneous considerations.

Shri Anil Kumar Tewari, while arguing the case on behalf of petitioner of Writ Petition No.6179 (S/S) of 2004 submitted that the petitioner No.1 and 3 had worked as Daftari since 1991 where as the petitioner No.2 has been working as Driver from the same year of 1999. Shri Ashok Kumar, respondent No.3, who has been selected for the post of driver has got driving licence since last seven months. Driving licence was issued to Shri Ashok Kumar by the Transport Department only on 21.10.2003. Vacancy was advertised on 30th July 2004. According to petitioner''s counsel under Rule 11 of HINDI (in short hereinafter referred as the 1993 Rules), a copy of which has been filed as Annexure1 to the rejoinder affidavit, three years experience is necessary for recruitment against the post of Driver. Learned counsel for the petitioner had relied upon Rule 11 of the 1993 Rules, for convenience it is reproduced as under:

Shri B.R. Singh who appeared and argued the case on behalf of petitioner of Writ Petition No.7017 (S/S) of 2004 which relates to recruitment in Class III cadre submitted that nondisclosure of number of posts in the advertisement is violative of Rule 10 of the The Subordinate Civil Courts Ministerial Establishment Rules, submitted by Shri B.R. Singh, learned counsel for the petitioner that once learned District Judge, Barabanki had constituted a Selection Committee consisting five officers of the judgeship of Barabanki headed by Shri Ashok Kumar, Additional District Judge, Barabanki as its Chairman then District Judge, Barabanki was having no right to interfere with the selection process. Rule 11 of the 1947 Rules authorize the learned District Judge, to constitute a Committee. Accordingly, the submission is that learned District Judge, Barabanki had acted ''functus officio'' by usurping the power of Selection Committee by rechecking 100 or more copies or changing the marks at his end. It has been submitted that Smt. Pushpa Saxena w/o Shri Vinod Khare is the D/o Shri Sant Lal, Additional Civil Judge, Senior Division, Shri Sant Lal was the member of Selection Committee. One Amit Kumar who has been selected for Class IV post is the son of Shri R.P. Awasthi, Senior Administrative Officer working in the judgeship of District Barabanki. Shri Sharad Chand Gupta who has been selected for Class IV post is the son of Shri Phool Chand Gupta working as Peshkar in the judgeship of Barabanki. Shri Soni Khatri who has been selected in Class III cadre has been working as domestic servant in the house of Additional District Judge Shri R.P. Pandey. Learned counsel for the petitioner, Shri B.R.Singh further submitted that the cutting or overwriting or interpolation done in the copies create reasonable doubt against the entire selwection process. He has relied upon Apex Court judgment reported in 1996 (5) SCC 365, Biswa Ranjan Sahoo v. Sushanta Kumar Dinda.

In response to argument advanced by petitioner''s counsel, Shri Vivek Raj Singh, representing the private respondents submitted that 1947 Rule shall deem to be repealed in view of Apex Court judgment reported in 1986 (Supp) SCC 285, Om Prakash Shukla v. Akhilesh Kumar Shukla and others. Learned counsel for the respondents has relied upon Para 20 of the Apex Court judgment of Om Prakash''s case (supra). He has further proceeded to submit that writ petitions are not maintainable as the petitioners had approached this Court when they failed to get selection in the examination in question. The submission is, since petitioner had appeared in the examination and they have not been selected in view of law laid down by Apex Court in the case of Om Prakash Shukla (supra) the writ petition is not maintainable.

Shri S.C. Yadav, learned Additional Chief Standing Counsel, thereafter, Shri Alok Sinha who appeared for State as well as District Judge, Barabanki had reiterated the argument advanced by Shri V.R. Singh, Advocate and further proceeded to submit that the entire selection of Class III and Class IV employees was held perfectly in accordance to Rule. Learned counsel for the respondents No.1 and 2 while relying upon the affidavits filed by Shri Syed Majhar Abbas Abidi, learned Additional District Judge, Barabanki who was also the Chairman of the Selection Committee submitted that so far as the reservation is concerned roster was applied in pursuance to notification dated 10.10.1994 (it relates to promotees not for the direct recruitment), a copy of which has been filed as Annexure CA7 to the Counter Affidavit. However, the select list (Annexure No.1 to the writ petition) of Class IV post shows the applicability of notification dated 29.3.1994 for the purpose of reservation and roster. Relying upon the averment contained in Para 7 and 10 of the counter affidavit filed by Shri Syed Mazhar Abbas Abidi, learned Additional District Judge it has been submitted that selection was done in pursuance to U.P. Subordinate Civil Court Inferior Establishment Rule 1955, (in short hereinafter referred as 1955 Rule) but the order dated 2.7.2004 (Annexure CA1) reveals that 1947 Rule and 1950 Rule were applied. For Class IV candidates, a dictation was given in Deo Nagri script to check the knowledge of Hindi. All the candidates were invited to face the interview as per schedule contained in Annexure1 to the Counter Affidavit. In para 10 of the counter affidavit filed by learned Additional District Judge, it has been submitted that no criteria was adopted to give any standard marks or any passing marks in the eligibility test to the candidates of Class IV posts since the examination was designed only to see whether the candidates applying for the posts in question were capable of writing Deo Nagri script fluently.

Supplementary affidavit dated 8.2.2005 has been filed by learned Additional District Judge which indicates that an examination Committee was constituted for holding the test of Class IV posts consisting Shri Mukhtar Ahmed, Additional District Judge, Barabanki, Shri Sant Ram, Additional Civil Judge, Senior Division, Barabanki, Shri Satyavir Singh Yadav, Additional Chief Judicial Magistrate Barabanki. According to respondent''s counsel Shri Mukhtar Ahmed was the Chairman of the Committee who supervised the examination of Class IV posts. Along with supplementary affidavit, a report dated 10.9.2004 has been attached, signed by learned District Judge Shri S.B. Vaish which indicates that the interview was held by himself. The report reveals that the interview was held by learned District Judge, Barabanki of all the candidates applied against the Class IV vacancies, duly assisted by the examination Committee. According to report the candidates were divided into A, B, C and D categories (v] c] l] n). Category A indicates the candidates who were slightly higher qualified hence their names were not considered. Only candidates who were graded as B, C and D were considered and eligible for appointment. Learned counsel for the opposite parties No.1 and 2 had invited attention towards the affidavit dated 13.7.2005 filed by Shri S.B. Vaish, learned District Judge Barabanki. It has been submitted by learned District Judge while filing the counter affidavit that though under Rule it is District Judge alone is the appointing authority but to maintain fairness a Committee was constituted consisting senior officers of the judgeship Barabanki namely Shri Ashok Kumar, Additional District Judge, Shri Luqmanul Haq, Additional District Judge, Shri R.P. Pandey, Additional District Judge, Shri S.P. Arvind, Chief Judicial Magistrate, and Shri Sant Ram, Additional Civil Judge. The order dated 2.7.2004 by which the Committee was constituted for the recruitment of Class III posts indicates that U.P. Civil Court Municipal Establishment Rule, 1947, as well as U.P. Rules for Recruitment of Municipal Staff of Subordinate Offices in Uttar Pradesh, 1950, were relied upon (in short hereinafter referred as the 1947 Rule and 1950 Rules respectively). For convenience the order dated 2nd July 2005 filed as Annexure CA1 to the affidavit of learned District Judge, is reproduced as under:

�ORDER No.234 OF 2004 (ADMINISTRATIVE)

A Committee consisting of following officers is constituted for holding of examination for recruitment of Stenographer and Class III employees under the Uttar Pradesh, Civil Court Ministerial Establishment Rules 1947, the Uttar Pradesh Rules for Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh 1950 and the existing Circular Letters of the Hon''ble High Court of Judicature at Allahabad, in this regard:

Sri Ashok Kumar, ADJ Chairman

Sri Luqmanul Haq, ADJ Member

Sri R.P. Pandey, ADJ Member

Sri S.P. Arvind, CJM Member

Sri Sant Ram, Add. Civil Judge (S.D) Member

Inform all concerned.

(S.B.Vaish)

District Judge,

Barabanki

2.7.2004"

Written test for Class III posts was held in three institutions namely, Pioneer Montessori Inter College, Lakhpera Bagh, Barabanki, Ram Segak Yadav Smarak Inter College, Lakhpera Bagh, Barabanki and Rajkiya Inter College Barabanki. Invigilation works was said to be performed by teachers of the respective college. However, examination was held under the supervision of judicial officers deployed for the purpose vide order dated 26.8.2004 (AnnexureCA3). According to counter affidavit, the copies of the examination were codified and later on they were decoded by Shri Laqmanul Haq, learned Additional District Judge who was the Chairman of examination Committee and learned District Judge himself. Copies were said to be examined by the teachers of colleges provided by Deputy Inspector of Schools, Barabanki. According to counter affidavit of learned District Judge, on 4.11.2004 Shri Laqmanul Haq had reported relating to completion of evaluation work and receipt of mark sheet and answer books from the examiner.

After receipt of answer book and mark sheet, the learned District Judge had directed the Chairman of selection Committee to prepare the list of candidates who had obtained more than 100 marks and also the entire merit list (para 4 (e) of the counter affidavit). The Committee had submitted the merit list to the learned District Judge on 4.11.2004. According to learned District Judge the select list was shown to the Administrative Judge of the District Barabanki on 4.11.2004 itself and which was orally approved by the Administrative Judge of Barabanki on same day. The select list was said to be exhibited on the Notice Board i.e. 4.11.2004. According to learned District Judge, High Court was informed by D.O. dated 27.11.2004 relating to the select list of Class III employees.

Learned District Judge while reiterating the averment of Syed Mazhar Abbas Abidi, learned Additional District Judge submitted that the Committee was constituted by his order dated 6.7.2004 in the manner referred hereinabove. It has been admitted by learned District Judge that he himself taken the interview of candidates who had applied for Class IV posts in the presence of members of Selection Committee. The select list was prepared and sent to High Court on 10.9.2004 (para 5 of the counter affidavit). Learned District Judge had also stated that on account of only 3% reservation candidates falling under the physically handicapped category could not be appointed. Virtually, he had reiterated the averment contained in para 10 of the counter affidavit filed by Syed Mazhar Abbas Abidi. It has been admitted by learned District Judge that the decoding of the copies were done by him alongwith Shri Laqmanul Haq, learned Additional District Judge (para 4 (d) of the counter affidavit dated 13.7.2005).

It has been further stated by learned District Judge that the copies of Class IV employees were not evaluated through marks rather grading was done as per performance and suitability of candidates. Interview was taken by learned District Judge personally with the assistance of examination Committee. It has been further submitted by learned District Judge that at one time of interview only one medium of writing was used i.e. either pencil or pen. Though medium of writing differed from period to period but only one medium has been used for a particular period of interview. It has been further submitted that during the course of interview learned District Judge had to stop the interview on account of call of nature or other important and urgent works.

It has been further stated that there is no cutting or overwriting on the answer book of 15 selected candidates of Class IV post done while providing grading. Accordingly it borne out from the averment contained in Para 10(c) of the counter affidavit filed by learned District Judge that gradings were done on the copies of Class IV employees and there exists no cutting or overwriting over the copies of 15 selected candidates.

While defending his right to hold interview it has been stated by learned District Judge that being appointing authority it was his duty to hold interview. It has been stated that grading was done at the time of interview, it was not possible for any other person to do the grading. It has been also stated by learned District Judge that he was at all not involved with the evaluation of answer book, rather it was done by the teachers of Government Colleges working under the control and supervision of District Inspector of Schools, Barabanki. It has been further stated that copies were examined by the examiners in accordance to practice adopted in the evaluation of copies by High School and Intermediate Board. Certain corrections and overwriting were done by random checking of the copies which was not avoidable. While, checking manually certain mistakes may occur, hence, the correction was a must. According to learned District Judge, the candidates of various categories who have been selected and secured marks as under:

Selected candidates under General candidates 127 to 140 marks

Selected candidates under Scheduled Caste candidates 117 to 120 marks

Selected candidates under Male O.B.C. candidates 117 to 122 marks

Selected candidates under Mahila O.B.C. candidates 95 marks

Learned District Judge had justified the correction done in the marks and stated that correction and overwriting has been done as per need at the time of evaluation in due course. It has been also submitted that corrections were also done to bring uniformity in evaluation to remove discrepancy. For convenience Para 10(h) and 10(i) are reproduced as under:

�10(h): Thus it is thus clear that there was no intention behind making corrections/cuttings, because by doing so it was not possible for the person making corrections either to throw away from the zone of eligibility or to bring within the zone of eligibility any persons.

10(i): that the perusal of records would show that the corrections/overwriting have been done as per need of evaluation in due course. In other words, the corrections/overwriting appears to have been done for removal of mistakes in calculation, for providing prescribed marks, to bring uniformity in evaluation and to remove the indiscrepancy. For the purposes of convenience of this Hon''ble Court a chart showing the positions of 34 answer books wherein there is some cutting/overwriting, is being annexed as Annexure No.C.A.14. A chart showing the marks of selected candidates of different categories is also being annexed as Annexure C.A.15.�

After exchange of affidavits learned District Judge had filed another affidavit titled as supplementary counter affidavit dated 3.9.2005. Though in the order passed by himself referred hereinabove it has been provided that 1947 Rule has been taken into consideration but while filing the affidavit dated 3.9.2005 learned District Judge had stated that 1947 Rule has been superseded by 1950 Rules in view of case of Om Prakash''s case (supra) (para 6 of the supplementary counter affidavit). It has been further stated in the supplementary counter affidavit that learned District Judge had not decoded the copies individually but he was assisted by Shri Luqmanul Haq, the Additional District Judge who was the Chairman of the examination Committee. It has been also stated that being appointing authority learned District Judge was well within the right to participate in the selection process even after constitution of selection Committee. The instruction given by him from time to time including the order dated 25.8.2004 does not mean to interfere with the selection process.

After perusal of records when it was found that records have been manipulated, cutting and overwriting have been done, keeping in view the bulk of examination record, Shri Anil Kumar Srivastava, Officer on special duty of High Court was directed to submit a report. Parties'' counsel were also permitted to present during the course of perusal of record by the enquiry officer. Shri Anil Kumar Srivastava, O.S.D. of this Court had submitted a report dated 6.12.2005. A copy of report was provided to the parties'' counsel inviting objection. No objection has been filed by the parties rather the finding recorded by enquiry officer has been admitted by counsel for the opposite parties during the course of hearing. During the course of hearing it has been submitted by Shri V.R. Singh, learned counsel for the private respondents that in the list II containing the name of 18 candidates selected for Class III posts on account of cutting or overwriting the result of only one Roll No.157 of the General Category has been materially affected and not of other candidates. Candidate under General Category possessing Roll No.157 had originally obtained 117 marks but on account of change in the marks through cutting and overwriting his marks has been enhanced to 127. The last selected candidate admitted under the General Category had received 127 marks, according to averment contained in Para 10(e) of the counter affidavit filed by learned District Judge Shri S.B. Vaish. Accordingly, the submission is, only one candidate has got success on account of change, cutting or overwriting done in the marks.

Enquiry officer had further filed a list containing the list of 46 copies, in which it has been found that in majority of the questions, marks were changed at later stage. The roll number of list VI are not in one sequence but it found place in the merit list from Roll No.19 to 2750. One starting feature which has come to light from the report submitted by Shri Anil Kumar Srivastava, O.S.D., High Court is that the large number of copies of Class IV employees were kept without evaluation. No grading was done by the examiner or the selection Committee on the copies of written test held for Class IV candidates. Though in all the copies of selected candidates grading have been done.

Keeping in view the enquiry report and argument advanced by the parties'' counsel the records were perused by this Court to some extent in the presence of parties'' counsel on 22.12.2005 and 23.12.2005. While perusing the record it was found by this Court that there is sharp reduction of marks in the copies of the candidates by cutting and overwriting. The reduction in marks in the questions have not been duly signed by the examiner though it was necessary even if the method or circular of the High School Board has been enforced for evaluation of copies. For convenience the order recorded by this Court on 22.12.2005 and 2.12.2005 are reproduced as under:

�(order sheet dated 22.12.2005) Sri Alok Sinha, learned Addl. Chief Standing counsel has concluded his arguments on behalf of the State as well as Judgeship of Barabanki. In the presence of parties'' counsel, copies of the examination of Class III employees were perused by this Court. On random inspection in 7 copies, it has been found that marks were changed having the following particulars:

1 2 3 4 5

Roll No. Code No. Marks Marks Remarks Originally obtained after change

given by cutting

and overwriting

1525 601 132 1/2 89 1/2 Q.No.120 marks 133 changed to 8

Q.No.218 marks

changed to 8

Q.No.313 marks

changed to 8

Q.No.414 marks

changed to 10

Q.No.518 marks

changed to 08

Q.No.621 marks

changed to 16

1526 602 123 68 Q.No.118 marks

changed to 8

Q.No.218 marks changed to 08

Q.No.314 marks changed to 04

Q.No.415 marks changed to 05

Q.No.515 marks changed to 05

Q.No.613 marks changed to 08

1527 603 136 80 Q.No.115 marks

changed to 5

Q.No.218 marks

changed to 8

Q.No.320 marks

changed to 8

Q.No.416 marks

changed to 6

Q.No.518 marks

changed to 8

Q.No.617 marks

changed to 13

1528 604 140 82 1/2 Q.No.118 marks

changed to 5

Q.No.220 marks

changed to 8

Q.No.322 marks

changed to 15

Q.No.418 marks

changed to 05

Q.No.515 marks

changed to 05

Q.No.614 marks

changed to 12

1529 605 136 77 Q.No.110 marks

changed to 03

Q.No.220 marks

changed to 05

Q.No.318 marks

changed to 08

Q.No.412 marks

changed to 5

Q.No.515 marks

changed to 5

Q.No.617 marks

changed to 12

1532 607 129 97 Q.No.318 marks

changed to 13

Q.No.112 marks

changed to 08

Q.No.218 marks

changed to 08

Q.No.510 marks

changed to 7

1535 609 119 92 Q.No.514 marks

changed to 6

Q.No.615 marks

changed to 11

Q.No.115 marks

changed to 06

Q.No.212 marks

changed to 6

Q.No.312 marks

changed to 8

1093 202 120 99 Q.No.14 marks

changed to 10

Q.No.315 marks

changed to 10

Q.No.415 marks

changed to 10

1594 662 115 110 Q.No.115 marks

changed to 10

1596 663 110 79 Q.No.114 marks

changed to 9

Q.No.210 marks

changed to 5

Q.No.316 marks

changed to 10

Q.No.511 marks

changed to 5

1597 664 128 99 Q.No.119 marks

changed to 10

Q.No.217 marks

changed to 10

Q.No.318 marks

changed to 15

Q.No.415 marks

changed to 5

Q.No.517 marks

changed to 8

The aforementioned change of marks has been noticed by this Court in the presence of parties'' counsel including Sri Alok Sinha, learned Addl. Chief Standing Counsel. Sri Anil Kumar Srivastava, OfficeronSpecial Duty of this Court has also provided the necessary assistance. The entire records could not be perused.

Put up tomorrow after lunch.

(order sheet dated 23.12.2005) Keeping in view the seriousness of the matter as well as on account of fact that examination prima facie seems to be affected by malpractices i.e. by cutting and overwriting over the copies. Petition has been again heard in Chamber w.e.f. 3.00 P.M. in the presence of parties'' counsel.

Five more copies of Class III employees has been taken up randomly and in those copies also marks have been found to be reduced by cutting/overwriting. They are as under:

Roll No. Code No. Marks Marks Remarks Originally obtained after change

given by cutting

and overwriting

1018 129 136 98 Q.No.118 marks changed to 8

Q.No.215 marks

changed to 10

Q.No.318 marks

changed to 10

Q.No.520 marks

changed to 5

1242 341 113 103 Q.No.315 marks changed to 13

correction signed

Q.No.512 marks

changed to 10

correction signed

Q.No.620 marks

changed to 15

correction signed

1534 608 99 89 Q.No.214 marks changed to 10

Q.No.315 marks

changed to 12

Q.No.413 marks

changed to 05

2201 1202 103 99 Part 3(a)18 marks changed to 5

1069 179 69 120 Q.No.313 marks changed to 18

Part3 (Kha)17

marks changed to 10

Part3 (Kha)4

marks changed to 10

Part2 (Kha)17

marks changed to 20

total changed

Q.No.10 marks changed to 14

Q.No.20

marks changed to 10

Q.No.414 marks

in answer sheet but

18 marks given in

tabulation chart No.

signature on cuttings.

The correction done in the totalling of marks in the front page of all the sixteen copies, perused by this Court in the presence of counsel on 22.12.2005 and today have not been signed only some copies seems to contain initial. In some copies at the face of record there appears to be different pen has been used on the front page while making correction. The marks of individual question either on the front page or in the copy where marks have been granted and reduction has been done, lacks signature or initial of the examiner. Reduction of marks has been done though prima facie it appears that examinees had solved the questions fairly well.

There are more copies in the trunk sent by the Judgeship, Barabanki to this Court containing the copies of examinees possess cutting and overwriting. The cutting and overwriting over the copies have been seen by the parties'' counsel as well as learned Additional Chief Standing Counsel. All these 16 copies of the examinees perused by the Court on 22.12.2005 and today, is directed to be kept in separate sealed cover.

Records of the Class IV employees have also been perused in the presence of counsel for the parties. It was found that in the copies/answersheet of selectees that granding has been done either through pencil or pen by the learned District Judge, a list of which has been filed as List VII by the enquiry officer, but in more than thousand of copies no grading has been done. The copies of Class IV employees which has been shown as List VIII by the enquiry officer has been perused in the presence of parties'' counsel. Those copies as well as hundred of other copies lacks granding. It appears that copies of majority of the nonselectees were neither seen nor perused at the time of interview and lack any grading either by use of pencil or pen though a defence has been taken that at the time of interview granding was done.

At the face of record, on the copies of selectees a grading by A, B and C has been endorsed but in the copies of nonselectees in majority of the cases no grading exists when the records are randomly checked and perused in the present of the parties'' counsel. The interview sheet contains column for grading of written examination as well as interview. It appears that without taking pain to evaluate the copies and to provide grande on the copies of written examination (containing written passage by dictation) of nonselectees grading has been done only over the interview sheet. There are cutting and overwriting by pen over the interviewsheet also. The interview sheet of Class IV employees contains the following column.

After perusal of records and hearing of learned counsel for the parties judgment reserved.

The entire record shall be retained and kept under seal of the Court till further order of this Court.

Thus, from the perusal of interview sheet it is evident that it was incumbent upon the examination Committee or learned District Judge to grant marks for written test and interview separately. Even if grading was done then there should have been separate granding for the written test and the interview, which seems to have not been done. So far as the candidates selected for Class IV posts are concerned, grading in written test should have been indicated by remark on the answer sheet. In the absence of any remark or granding done in the answer sheet or copies of the nonselectees candidates who had applied for Class IV posts leaves no room of doubt that their copies were not examined by the examiner.

Before the commencement of the Constitution, recruitment to the Ministerial Establishment in Subordinate Civil Court of United Provinces of regulated by Subordinate Civil Court Manual Establishment Rule 1947 (in short hereinafter referred as the 1947 Rule). The rule was promulgated by the Governor United Provinces on 1.8.1947 by virtue of Article 313 and of Article 372 of the Constitution, the 1947 Rule continued to be enforced even after the commencement of Constitution but on duly 1950 the Government of U.P. promulgated the rules for recruitment of Ministerial Staff of Subordinate Offices in the State of U.P. including the offices of Subordinate Civil Courts in exercise of power conferred by him by the proviso of Article 309 of the Constitution of India in supersession of all existing rules and orders of the subject. The rule was called �Rules for the recruitment of Ministerial Staff to the Subordinate Offices 1950� (in short hereinafter referred as 1950 Rules). As settled by Apex Court in the case of Om Prakash Shukla (supra) the 1947 Rules stood supersede by 1950 Rule as regarding subjects prescribed for the test and manner of examination to be held for the purpose of selecting candidates for Ministerial Staff in the Civil Court of U.P. Virtually as held by Apex Court the entire 1947 Rule has been not superseded but only Rule 9 to 12 and Apendix II of 1947 Rule were superseded (para 7, 11 and 20 of the judgment of Om Prakash Shukla�s case). In pursuance to power conferred by Article 309 of the Constitution of India the Governor had again promulgated another Rule namely the U.P. Subordinate Civil Court Inferior Establishment Rule 1955 (in short hereinafter referred as the 1955 Rule). Under Rule 3 inferior staff has been defined as Daftari, Bundle Lifter, Orderly, Peon, Process Server, Office Peon, Chowkidar, Mall etc. Under Rule 8 the age of recruitment has been provided between 18 to 30 years on the date of appointment.

Thereafter, again in exercise of power conferred by provision of Article 309 of the Constitution of India the Governor of State had promulgated the Subordinate Civil Courts Ministerial Establishment (Amendment) Rules 1969 on 20.9.1969 amending the 1947 Rules. The amending Rule of 1969 Rules was also circulated throughout the State of U.P. to all District Judges as apparent from the case of Om Prakash Shukla (supra). Then again another rule namely U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rule 1975 (in short 1975 Rule) was promulgated by the Governor in pursuance to proviso of Article 309 of Constitution of India. The 1975 Rule possess the qualification and pattern of competitive examination for the post of recruitment in substitution of what has been possessed by the 1950 Rule as observed by Hon''ble Supreme Court in Om Prakash''s case (supra). For convenience relevant portion from the judgment of Om Prakash''s case is reproduced as under:

�From Rule 2 of the 1975 Rules which is set out above, it is clear that the said Rules were not made applicable to the Secretariat, the offices of the State Legislature, Lokayukt, Public Service Commission, High Court, the subordinate Courts under the control and superintendence of the High Court and all the establishments under the control of the AdvocateGeneral. The 1975 Rules prescribed the qualifications and the pattern of a competitive examination for purposes of recruitment in substitution of what has been prescribed by the 1950 Rules in respect of subordinate offices to which the 1975 Rules expressly provided thus:

Repeal and validation (1) The Rules for the recruitment of ministerial staff in the subordinate offices published under Notification No.O1119/IU850, dated July 11, 1950 as amended from time to time, shall be, and be deemed to have repealed with effect from June 5, 1974.�

In view of discussion made hereinabove while coming to the present controversy from the Order No.234/04 dated 2.7.2004 reproduced hereinabove it is obvious that the examination Committee was directed to proceed in accordance to 1947 Rule and 1950 Rule. No direction was issued by learned District Judge to follow the provision contained in 1955, 1969 or 1975 Rules which have been held to be operative in Om Prakash Shukla''s case (supra). Though the learned District Judge while filing counter affidavit as discussed hereinabove submitted that only 1950 Rule shall be applicable and not 1947 in contrast to his own order dated 2.7.2004 but so far as the applicability of 1955, 1969 or 1975 Rules are concerned they have been given gobye and not followed during the course of entire selection process. The difference between the various rules referred hereinabove have been discussed by Hon''ble Supreme Court in Om Prakash''s case, hence called for no repetition.

Under the facts and circumstances and material on record discussed herein above it borne out that entire selection process was held in a highly arbitrary manner without sticking to norms and procedure notified by learned District Judge himself. While advertising the vacancy of Class IV posts the minimum and maximum age for the candidates have been indicated between 18 to 35 years, though under 1955 Rule the age of recruitment for the posts in question should have been 18 to 30 years. However, while arguing the case respondents'' counsel submitted that 1950 Rule shall be applicable instead of 1947 Rule in contrast to the pleading contained in counter affidavit filed by Syed Mazhar Abbas Abidi.

Neither any argument has been advanced nor it has been disputed or pleaded by the opposite parties'' counsel during the course of argument relating to the nonapplicability of Rule 11 of 1993 Rules reproduced hereinabove which indicates that only those candidates may be appointed on the post of Driver who possess three years experience before registration in the employment exchange. The letter and spirit of the Rule 11 of 1993 Rules is that the aspirants for the posts of driver not only should have pass Class VIII but should have got a driving license issued three years earlier to the date of recruitment. In the present case petitioner No.2 of writ petition No.6179 of 2004 admittedly has been working in the Judgeship Barabanki since 1999 on the post of driver. The opposite party No.3, who has been selected for the post of driver, is aged about 19 years and driving license was issued only on him 21.10.2003. The selection was done on 30.7.2004. Accordingly, the submission of Sri Anil Kumar Tiwari, Advocate, that respondent No.3 was not qualified for appointment on the post of driver, has got force. He has not completed three years of required period before the date of selection. Moreover, nothing has come on record as to why a person (petitioner No.2) who has been serving the Judgeship Barabanki since 1999 has not been selected for the post of driver and a person who does not qualify under Rules, has been selected. The selection of respondent No.3 not only seems to be done in violation of Rules but also seems to suffer from extraneous reasons. 1993 Rule was framed in pursuance to power conferred by Article 309 of the Constitution of India accordingly, it has got statutory force. The violation of Rule in any manner shall render the entire selection illegal and nullity so far as the selection for the post of driver is concerned.

One of the argument advanced by Shri Ramesh Chandra, learned counsel for the petitioner of writ petition No.7021 (S/S) of 2004 that learned District Judge had not followed the procedure chalked out by himself for holding the test of Class IV candidates seems to correct. Learned District Judge had provided the guidelines containing details of procedure being adopted for selection then it was incumbent upon him to follow the procedure strictly without any deviation at later stage. The condition No.28 relied upon by the petitioners'' counsel is reproduced as under:

The aforementioned condition at the face of record reflects that candidates must pass the written qualifying test. Accordingly, it was incumbent upon the learned District Judge or the examination Committee to prepare the merit list on the basis of written test and only thereafter the successful candidate could have been called for interview. Even if grading was to be provided then it should have been done by examining each and every copies of the written test of candidates applied for the Class IV posts, but as evident from the material discussed hereinabove it was not done.

It has been indicated in the select list as well as in Para 4 of the counter affidavit filed by Shri Syed Mazhar Abbas Abidi, the Chairman of the selection Committee that the reservation of physically handicapped persons as well as other persons has been provided by applying roster in compliance of notification dated 10.10.1994 by providing roster. However, the select list, a copy of which has been filed as Annexure No.1 to the writ petition, shows that the notification dated 29.3.1994 was applied for reservation with roster system. The notification dated 10.10.1994 which has been filed as Annexure7 to the counter affidavit filed by Shri Syed Mazhar Abbas Abidi, Chairman of the Selection Committee was superseded by subsequent notification dated 22.10.2001, copy of which has been filed as Annexure1 to the Rejoinder affidavit. The notification dated 22.10.2001 superseded earlier orders for the purpose of reservation and applicability of roster system. Thus, at the face of record roster system applied by learned District Judge to provide reservation was based on a Government Order which has already been repealed and is not in existence. Accordingly, entire process adopted by learned District Judge to provide reservation suffers from substantial illegality and is nullity in law. The notification dated 22.10.2001 has been issued in pursuance to power conferred by the Act No.21 of 2001 which has got statutory force.

Thus while proceeding to fill up the vacancies neither the relevant Government Order has been followed to apply roster system in the process of reservation nor the conditions circulated by learned District Judge or the 1993 Rules and other provisions referred hereinabove have been followed. It is settled law that when in case statute wants to do certain thing in certain way then that must be done in a same way or not at all vide; Nazir Ahmad v. King Emperor, AIR 1936 PC 253; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527; Patna Improvement Trust v. Smt. Lakshmi Devi and others, AIR 1963 SC 1077; State of U.P. v. Singhara Singh and others, AIR 1964 SC 358; Barium Chemical�..AIR 1967 (para 34A); Chandra Kishore Jha v. Mahavir Prasad and others, 1999 (8) SCC 266; Delhi Administration v. Gurdip Singh Uban and others, 2000(7) SCC 296; Dhanajay Reddy v. State of Karnataka, AIR 2001 SC 1512; Commissioner of Income Tax, Mumbai v. Anjum M. H. Ghaswala and others, 2002 (1) SCC 633; Prabha Shankar Dubey v. State of M.P., AIR 2004 SC 486 and Ramphal Kundu v. Kamal Sharma, AIR 2004 SC 1657.

Here the question does not relate only to noncompliance of statutory rules but also to the noncompliance of procedure notified by learned District Judge himself to conduct the examination. Even if the statutory rules are silent on certain points and the appointing authority proceeded to lay down certain provisions to conduct an examination for the purpose of recruitment then noncompliance of such provisions by the authorities concerned shall be an arbitrary act and will be hit by Article 14 of the Constitution of India. When the right to livelihood is a fundamental right guaranteed under Article 21 of the Constitution of India then recruitment process which provides livelihood to the citizens should be just and fair and authorities atleast adhere to procedure framed and notified by themselves to conduct an examination.

When we come to evaluation of copies of Class IV employees at the face of record it is obvious that copies of the majority of the candidates who had applied for Class IV posts were not examined, no grading was done. The enquiry officer as well as this Court while perusing the record on 23.12.2005 had noticed that the copies have been kept without providing grade or marks and no evaluation was done, though according to condition No.28 provided by learned District Judge himself a candidate should have obtain qualifying marks before he could have been called for interview. Even if all the candidates were called for interview as stated in counter affidavit by learned District Judge as well as Chairman of the Selection Committee it was incumbent to examine each and every copy and provide marks or grade in accordance to performance of respective candidates, but it has been not done. The evaluation of copies of only selected candidates or some other candidates keeping the majority of the copies in the record without evaluation is not only highly arbitrariness act on the part of learned District Judge or the examination Committee concerned but it suffers from malice as well extraneous reasons and considerations. Why the copies of all the Class IV examinees were not examined keeping in view their performance. Nonexamination of copies of all the examinees or candidates who had applied for Class IV posts shows that learned District Judge had not acted in such a manner which is being expected from the head of family of the judiciary of a district. Only inference which may be drawn is that the selection was held for extraneous reasons and considerations.

It appears that the selection against the Class IV post were done either to accommodate certain candidates of judicial officers working in the Judgeship at Barabanki or for some extraneous considerations. The selection of Smt. Pushpa Saxena, who is the daughter of Additional Civil Judge, the selection of Shri Amit Kumar, S/o. Shri R.P. Awasthi working as Senior Administration Officer of Judgeship Barabanki, the selection of Shri Sharad Gupta, S/o Phool Chand working as Peshkar in the Judgeship Barabanki, the selection of Shri Sone Khatri, working as domestic servant in the house of one Additional District Judge, Shri R.P. Pandey speaks in volume.

A person should not discharge duty as the member of the selection Committee in case he has got some keen interest to recruit his own relatives, friends or a person serving him in any manner. It shall amount to be judge for his own cause.

According to Legal Maxims �Nemo debet esse judex in propria sua causa� i.e. �no man can be judge in his own cause is a settled administrative law accepted by catena of judgments in our country by the Apex Court. According to Legal Maxims by Brooms (Tenth Edition, page 68) it is a fundamental rule in the administration of justice, that a person can not be judge in a cause wherein he is interested. This Rule has been observed in practice with strict compliance in all those cases where a person or a judge is interested in the result of cause.

Accordingly, it appears that the basic principles of the administrative law has not been followed by the learned District Judge while making selection for the post in question.

Apart from the fact that copies were not examined, correction and interpolation or cutting has been found by this Court there is one more reason why all the copies of Class IV employees should have been examined and marks or grading should have been provided on the basis of performance. The interview sheet of the Class IV employees contain separate column relating to marks granted in written examination and interview. In case no marks have been granted on the copies of Class IV employees it shall amount to violation of procedure provided by learned District Judge himself.

The justification given by learned District Judge relating to the use of pencil and pen at different time seems to be childish. A person holding such a high office is not expected to give such a reply. Why at one stage pen/ball pen has been used and at other span of time pencil has been used does not seem to be satisfactorily replied. Only one inference may be drawn is that pencil was used so that quality point marks or grading may be changed to meet out the extraneous requirement.

While advertising the vacancies the actual number of post was not notified by learned District Judge. Though Rule 10 of 1947 Rule shall deem to be superseded by subsequent rule as held by Apex Court in Om Prakash''s case (supra) but it shall always be incumbent upon the appointing authorities to notify the actual number of posts of various categories while inviting application by publication in newspapers. It is necessary to maintain transparency fairness and justness in system of recruitment.

More over the selection and appointment are done against the sanctioned strength and regular vacancy. Hon''ble Supreme Court in a case reported in JT 1995 (2) SC 351, R.K. Sabharwal and ors. v. State of Punjab and ors, held that the word post means an appointment, job, office or employment, a position to which a person is appointed. Vacancy means unoccupied post or office.

The relevant portion from the case of R.K. Sabharwal (supra) is reproduced as under:

�The expressions ''posts'' and ''vacancies'', often used in the executive instructions providing for reservations, are rather problematical. The word ''post'' means an appointment, job, office or employment. A position to which a person is appointed. ''Vacancy'' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a ''post'' in existence to enable the ''vacancy'' to occur. The cadrestrength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relating to the number of posts which form the cadrestrength. The concept of ''vacancy'' has no relevance in operating the percentage of reservation.�

In one another case reported in 1996 (5) JT (SC) 219, Prem Singh v. Haryana State Electricity Board, it has been held that the selection process could be started for clear vacancies and also for anticipated vacancies but not for future vacancies.

The relevant portion from the case of Prem Singh (supra) is reproduced as under:

�The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.�

In the same case (supra) the Apex Court further held as under:

�However, the appointments which were made against future vacancies in this case on the posts which were newly createdmust be regarded as invalid.�

Accordingly, nondisclosure of vacancies in advertisement shall be an arbitrary act and will be violative of Article 14 of the Constitution of India. Since the advertisement by which selection has been done does not disclose the vacancies for which it was made, the consequential selection done shall be an arbitrary act.

After perusal of the copies by the Court during the course of proceeding as evident from ordersheet dated 22.12.2005 followed by order sheet dated 23.12.2005 reproduced hereinabove, the marks were substantially reduced. The marks of candidates possessing 127 or more marks (marks received by last selectee of general category) were substantially reduced to disentitle them from selection, for example reduction of 133 marks to 89, 136 to 80, 140 to 82/82 � , 136 to 77, 139 to 97, 119 to 92, 128 to 99, 136 to 98 marks speaks volume. On account of absence of signature or initial of examiner at the place of reduction of marks only inference may be drawn is that it was deliberately and intentionally done to provide undue advantage to some of the person who have been selected against the Class III vacancies.

There is one more reason which creates reasonable doubt by which marks have been reduced. The reduction of marks have been done not only in one question but almost in every questions of the candidates who secured higher marks in order of merit, to place them below 127 (marks received by last selectee in general category) or lower than the last selected candidates of unreserved category. There can be situation when marks could have been reduced by examiner in one or two questions on finding any fault at the time of evaluation. But reduction of marks in substantial number of questions in the copies of candidates who obtained higher marks and virtually who could have called for appointment in order of merit, does not rule out foul play on the part of learned District Judge or the examination Committee.

It is said that truth always prevail in life. It can not be shadowed down for all time to come under the darkness. Learned District Judge while explaining his conduct or the conduct of examiners had stated that (para 10 (h) and 10(i) reproduced hereinabove) alteration in marks were done as per need of evaluation in due course. It has been further admitted that correction or overwriting were doen for removal of mistake in calculation for providing prescribed marks to bring uniformity in evaluation and to remove discrepancy.

Virtually the statement of fact contained in Para 10(h) and 10(i) of the counter affidavit filed by learned District Judge seems to be eruption of truth. Once Mahatma Gandhi said to quote:

�I can see that in the midst of death life persists, in the midst of untruth truth persists, in the midst of darkness light persists. Hence, I gather that God is Life, Truth and Light� (Young India, dated 11.10.1928, Page 340) (The Selected Works of Mahatma Gandhi, Vol. V page 89)

Whether after evaluation of copies on the basis of performance of candidate the appointing authority or the examination Committee or the examiner or evaluer can be permitted to change the marks to bring uniformity in evaluation or to remove certain discrepancy? It is horrible to think to do such thing by the appointing authority or the examination Committee or the examiner. Every candidate who appears in a written test shall always be entitled to get marks or grade in accordance to his own performance. Neither the examiner nor the appointing authority nor any other persons who are at the helm of affairs have got right under law to change or reduce the marks for the purpose of alleged uniformity or removal of any discrepancy. Whatsoever the marks were granted keeping in view the performance of a candidate can not be altered with downward trend to remove any discrepancy or for the purpose of any uniformity. In case it is permitted to be done then it shall amount to give a gobye to merit of a candidate in the matter of employment, which is a source of livelihood for the candidates. Such conduct on the part of learned District Judge or the persons who were at the helm of affairs is deprecated in strongest words.

It appears that when the records were perused by this Court and entire records were summoned and it was found that interpolation, cutting or correction has been done, marks have been reduced learned District Judge had created a defence to save himself by shifting the liability on other authorities. Once it has been admitted that the copies of all the candidates were, received and those were having more than 100 marks, were rechecked and the learned District Judge himself had conducted the interview with the alleged assistance of Chairman of the Selection Committee then no other person can be blamed for the correction and reduction of marks except the learned District Judge, Barabanki himself.

The selection Committee was constituted by learned District Judge himself to hold the examination of Class III and Class IV candidates then what prompted the learned District Judge to hold the interview himself having assessed with the copies and records. Once learned District Judge had delegated his power to the examination Committee then it was incumbent upon him to await the outcome of examination Committee. The interview should be held by examination Committee and on the basis of result submitted by the examination Committee he should have issued an appointment letter being appointing authority. Of course learned District Judge was very well within the power to cancel the entire result being the appointing authority in case he was not satisfied with the outcome of the examination or the manner in which the examination was conducted by the examination Committee. On the one hand, learned District Judge had tried to shift the burden, if any, on the examination Committee or the teachers who alleged to have evaluated the copies on the other hand, he had tried to interfere and usurp the power of the examination Committee by sitting as Chairman of the Committee to hold interview and in the process of decoding of the copies.

Hon''ble Supreme Court in the cases reported in AIR 1961 SC 276, T. Cagee v. Zormanik Slem; AIR 1967 SC 459, State of Assam v. Kripa Nath Sharma and 1976 (1) SCC 594, Om Prakash Gupta Swadheen v. Union of India, held that appointing authority should be understood in its plain and natural meaning namely the authority which appoint an incumbent in case it has been not defined under Rule. It has been further held by Hon''ble Supreme Court that where an appointment is done in pursuance to recommendation of a Committee, the power of appointing authority relating to issue an appointment letter or dismissal of an employee shall always be intact. It is the appointing authority who has got power to confirm the appointment. For convenience relevant portion from the case of Om Prakash Gupta Swadheen''s case (supra) is reproduced as under:

�In the absence of any definition of ''appointing authority'' in the Central Civil Services (Temporary Service) Rules, 1965 in relation to a temporary government servant not holding a specified post, as the appellant was, we think the term ''appointing authority'' must be understood in its plain and natural meaning, namely, the authority which appointed him.�

In the case of Biswa Ranjan Sahoo v. Sushanta Kumar Dinda (supra) after perusal of record it was found that the answer book of successful candidates was found with upward alteration of marks at several places. Some of the copies were found to be examined by different examiner who had noted the marks with pencil. Tabulation charts had shown downwards alteration of marks. Hon''ble Supreme Court treated it as malpractice adopted by the examiner and upheld the judgment of administrative tribunal Katak cancelling the entire examination. It has been held by Apex Court in Biswa Ranjan (supra) that when there is malpractice at large scale issuance of individual notice to the examinee shall not be necessary. Hon''ble Supreme Court had directed the General Manager of the Railway to conduct an enquiry and punished the responsible person who were indulge in malpractice by holding appropriate disciplinary action, the present case seems to be covered by Apex Court judgment in Biswa Ranjan''s case.

It has been submitted by learned State counsel that copies were reexamined of only those candidates who had obtained more than 100 marks relying upon the report dated 4.11.2004, a copy of which has been filed as Annexure CA9 to the counter affidavit dated 13.7.2005 by learned District Judge. Report dated 4.11.2004 contains a statement. Relevant portion from the said statement is reproduced as under:

The aforementioned statement of fact recorded in the report dated 4.11.2004 at the face of record seems to be not correct. List ''VI'' filed by the Enquiry officer which has not been disputed by the opposite parties by filing objection inspite of time granted by this Court, rather has been admitted, shows that marks have been increased of those candidates also who have secured less than 100 marks. List ''I'' also includes the reference of several candidates shows marks have been enhanced though they have been initially received less than 100 marks. Thus, at the face of record, defence taken by the learned District Judge to validate his action seems to be based on unfounded facts. Exercise done relating to the correction, interpolation, reduction or enhancement of marks seems to have been done to accommodate certain candidates for extraneous reasons and considerations.

Under the facts and circumstance of the case discussed hereinabove, the irresistible conclusion is ''fraud has reached its crescendo''. The deeds as rather inconceivable much less could be perpetrated. In the words of Shakespeare:

�Thus much of this, will make

Black, white; foul, fair;

Wrong, right; Base, noble;

Ha, you gods! Why this?�

(Timon of Athens, Act IV, Sc.3)

It shall not be too much to draw an emphasis that all these were motivated by extraneous considerations. Otherwise how in majority of the questions of candidates possessing more than 100 mark alteration have been done with downward trend. Why the candidates who otherwise were having qualifying marks on merit have been put to suffer by alteration of marks with downward trend. How one can support a selection done on the basis of tampered written test and final record with fabricating of documents and forgery. Virtually a criminal act has been committed while altering the marks with downward or upward trend. Story not ends here. Learned District Judge had tried to validate the selection result with an statement in the counter affidavit that the select list was approved by the then Administrative Judge of Barabanki orally. According to learned District Judge, it was shown to the Administrative Judge on 4.11.2004 and result was declared on the same day. Why learned District Judge had taken shelter to protect him for the wrongs done from the Administrative Judge? Once he claims to be appointing authority then entire burden rest on the shoulder of learned District Judge to maintain fairness and justness in the examination process.

While defining the word fraud, Hon''ble Supreme Court in a case reported in 1994 (1) SCC 1, S.P. Chengalvaraya Naidu v. Jagannath; held that �a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another''s loss. It is a cheating intended to get an advantage�.

In a recent judgment reported in 2005 (6) SCC 149, State of A.P. and another v. T. Suryachandra Rao, Apex Court held that fraud as is well known vitiates every solemn act. The fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes other persons or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if parties make representation which he knows to be falls, and injury ensures therefrom although the motive from which the representations proceeded may not have been bad.

A collusion or conspiracy or fraud committed with a view to deprive the rights of other would render the entire action void ab initio. Fraud and deception are synonymous. A relevant portion form the case of State of A.P. and another v. T. Suryachandra Rao (supra) is reproduced as under:

�Fraud'' and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is concept descriptive of human conduct. Michael Levi likens a fraudster to Milton''s scorcerer, Comus, who exulted in his ability to, ''wing me into the easyhearted man and trap him into snares''. It has been defined as an act of trickery or deceit. In Webster''s Third New International dictionary �fraud� is equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black''s Law Dictionary, �fraud� is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury''s Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact, Section 17 of the Contract Act, 1872 defines �fraud� as an act committed by a party to a contract with the intent to deceive another. From dictionary meaning or even otherwise fraud arises out of a deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with the knowledge that it was false. In a leading English case i.e. Derry v. Peek what constitutes �fraud� was described thus: (All ER p.22 BC)

�[F]raud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.�

But �fraud� in public law is not the same as �fraud� in private law. Nor can the ingredients, which establish �fraud� in commercial transaction, be of the assistance in determining fraud in administrative law. It has been aptly observed by Lord Bridge in Khawaja v. Secy. of State of Home Deptt. That it is dangerous to introduce maxims of common law as it effect of fraud while determining fraud in relation to statutory law, �Fraud� in relation to statute must be a colourable transaction to evade the provisions of a statute.

�If a statute has been passed for some one particular purpose a Court of law will not countenance any attempt which may be made to extent the operation of the Act to something else which is quite foreign to its object and beyond its scope. Presentday concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or nonexistence of which power can be exercised. But nondisclosure of a fact not required by a stature to be disclosed may not amount to fraud. Even in commercial transactions nondisclosure of every fact does not vitiate the agreement, ''In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain.'' In public law the duty is not to deceive� (See Shrisht Dhawan v. Shaw Bros, SCC p.554, para 20)�

In Concise Oxford Dictionary it has been defined as criminal deception, use of false representation to gain unjust advantage, dishonest artifice or trick in the cases reported in Roshan Deen v. Preeti Lal, (2002) 1 SCC 100: 2002 SCC (L&S) 97, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311, Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319; Ashok Leyland Ltd. v. State of T.N., (2004) 3 SCC 1).

Such offices meant for use, not for abuse. The whole examination and the interview turned out to be farcical exhibiting base character of those who have been responsible for this solipso. It shakes our conscious when we come across such a systematic fraud.

The conduct of a Judge is a 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. The judicial office is essentially a public trust. Hon''ble Supreme Court in a case reported in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and others, (1995) 5 Supreme Court Cases 457), while considering the importance of office occupied by a person in judiciary proceeded to discuss the standard which is expected from judicial officers in the following words:

�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 illafford to seek shelter from the fallen standard in the society.

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 fallings 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 officeholders 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.�

In one another case reported in (1997) 6 Supreme Court Cases 339, High Court of Judicature at Bombay through its Registrar, Appellants v. Shirish Kumar Rangrao Patil and another, Respondents again Hon''ble Supreme Court held that whether it is on judicial side or on administrative side or even in personal life the conduct of a Judge or judicial officer should be above the Board. It has been held by the Apex Court that it is the duty of High Court to keep strict vigilance over the subordinate judiciary to maintain the higher standard. Relevant portion from the case of High Court of Judicature at Bombay (supra) is reproduced as under:

�14. Therein also, it was further observed that what is required of a Judge is ''a form of life and conduct far more severe and restricted than that of ordinary people'' and though unwritten, it has been most strictly observed. The judicial officers are at once privileged and restricted; they have to present a continuous aspect of dignity and conduct. If the rule of law is to efficiently function under the aegis of our democratic society, Judges are expected to nurture an efficient, strong and enlightened judiciary. To have it that way, the nation has to pay the price, i.e., to keep them above wants, provide infrastructural facilities and services. There was a time when a Judge enjoyed a high status in society. A Government founded on anything except liberty and justice cannot stand and no nation founded on injustice can permanently stand. Therefore, dispensation of justice is an essential and inevitable feature in the civilized democratic society. Maintenance of law and order requires the presence of an efficient system of administration of criminal justice. A sense of confidence in the Court is essential to maintain the fabric of ordered liberty for free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control of subordinate judiciary and its own selfimposed judicial conduct, on and off the bench, to ensure it. If one forfeits the confidence in the judiciary of its people, it can never regain its lost respect and esteem. The conduct of every judicial officer, therefore, should be above reproach. He should be conscientious, studious, thorough, Courteous, patient, punctual, just, impartial, fearless of public clamour, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the prupose of advancing his personal ambitions or increasing his popularity. If he tips the scales of justice, its rippling effect would be disastrous and deleterious.�

The Division Bench of this Court in a recent judgment reported in (2005) 2 UPLBEC 1156, District and Sessions Judge, Baghpat v. Ratnesh Kumar Srivastava and another, had upheld the right of High Court on judicial side to interfere over the decisions of the subordinate Court on Administrative as well as judicial side in case it is found that the judicial officer had acted against the canons of justice or in an arbitrary manner or his action suffered from some extraneous reasons or considerations. While exercising supervisory power under Article 227 of the Constitution of India it is not necessary for this Court to dismiss the writ petition on the ground that petitioner had failed in the examination or they have got no locus standi in case during the course of proceedings it is found that some illegality or irregularity or fraud or misconduct has been committed by the presiding officer or learned District Judge of the subordinate Court either on administrative side or judicial side. It has been also held in the case of District and Sessions Judge, Baghpat (supra) that temporary Ad hoc employees has got no right to continue in service and a person may be held to acquire a lien on post only when he has been appointed in accordance to rule and his services were confirmed and made permanent and not earlier. For convenience relevant para from the judgment of District and Sessions Judge, Baghpat (supra) is reproduced as under:

�42. Article 235 of the Constitution of India provides for power of the High Court to exercise complete administrative control over the subordinate Courts. This, control, undoubtedly, extends to all functionaries attached to the Subordinate Civil Courts including the ministerial staff and servants in the establishment of the Subordinate Civil Courts. The view stands fortified by the judgments of various High Courts including Mohd. Ghouse v. State of Andhra Pradesh, AIR 1959 A.P. 497; and Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal, AIR 1961 Cal.1.

In State of West Bengal and another v. Nripendra Nath Bagchi, AIR 1966 SC 447, the Apex Court held that in view of the provisions of Article 235 of the Constitution, the administrative control of the High Courts is not limited only to the Judicial Officers but also to the functionaries of that Court and in a matter pertaining thereto. Similar view has been reiterated by the Hon''ble Apex Court in Baradakanta Misra v. Registrar of Orissa High Court and another, AIR 1974 SC 710.

Full Benches of the Punjab High Court in Amar Singh v. Chief Justice, Punjab and Haryana High Court, Chandigarh, AIR 1976 P & H 215; and Gujrat High Court in R.M. Gajjar v. State of Gujarat and others, AIR 1978 Guj. 102, after considering the entire legislative history of Article 235 of the Constitution and all earlier judgments on the point, came to the conclusion that if the administrative control cannot be exercised over the administrative and ministerial staff, the purpose of superintendence provided therein would stand frustrated and such an interpretation would be wholly destructive to the harmonious, efficient and effective working of the subordinate Courts, if the High Court would denude of power of control over the other administrative functionaries and ministerial staff of the district Court and Subordinate Courts other than Judicial Officers. The Courts are institutions or organism where all the limbs complete the whole Court and when the Constitutional provision is of such wide amplitude to cover both the Courts and persons belonging to the Judicial Office, there would be no reason to exclude the other limbs of the Courts, namely, administrative functionaries and ministerial staff of its establishment from the scope of control.

A similar issue was examined by this Court while deciding the Writ Petition No.17907 of 1996, Subedar Singh and others v. District Judge, Mirzapur, decided on 24.2.1997, in which one of us (B.S. Chauhan, J.) was a party and it was observed that administrative control over the subordinate Courts is complete and its extent to the employees of the establishment, including the ministerial and administrative staff. It was also observed that when any illegality comes to the notice of the Inspecting Judge, he cannot be supposed to be merely a silent spectator because the District Judge could have himself taken the action for removing the illegality.

While deciding the said case, reliance had been placed upon the judgment of the Hon''ble Supreme Court in Chief Justice of Andhra Pradesh and another v. L.V.A. Dikshitulu and others, AIR 1979 SC 193, herein it has been held:

�The Control over the subordinate judiciary, vested in the High Court under Article 235, is exclusive in nature, comprehensive in extent and effective in operation.�

The said judgment stood affirmed by the Hon''ble Apex Court observing that in infirmity could be found with the reasoning and conclusions given by the High Court. (Subedar Singh v. District Judge, Mirzapur and others, AIR 2001 SC 201).�

The power of general superintendence of High Court on the subordinate Court is complete as held by the Apex Court in a case reported in 2003 (4) SCC 239, High Court of Judicature for Rajasthan v. P.P. Singh.

The power of superintendence of the High Court envisaged by Article 227 read with Article 235 gives ample power of supervision and control over the subordinate Courts. The word superintendence used by framers of Constitution in Article 227 is almost analogous to provision contained in Article 324 of the Constitution. Article 324 of the Constitution empowers the Election Commission of India with ample power of superintendence, direction and control of election affairs. While interpreting Article 324 of the Constitution of India. The Division Bench of this Court in a case reported in AIR 2002 Allahabad 73, Lalji Shukla and another v. Election Commissioner of India and others, held as under:

�The word ''superintendence, direction and control'' and the words ''conduct of elections'' are very wide words and thus they give power to the Election Commissioner to do all that is necessary to ensure free and fair elections so that the will of the people can be expressed thereby. In our opinion the impugned directions of the election commission are well within the powers conferred to it by Article 324 (1) of the Constitution of India.�

While interpreting the provision contained in Article 324 of the Constitution of India in catena of judgments Hon''ble Supreme Court had interpreted the word �superintendence, direction and control� enshrined in Article 324 of the Constitution of India. In a judgment reported in 2000 (8) SCC 216, Election Commissioner of India v. Ashok Kumar, their Lordship of Apex Court had proceeded to held as under:

�Article 324 of the Constitution contemplates constitution of the Election Commission in which shall vest the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to parliament and to the legislature of every State and of elections to the offices of President and VicePresident held under the Constitution. The words ''superintendence, direction and control� have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion.�

Accordingly, while exercising supervisory jurisidiction this Court has got ample power to pass appropriate order to rectify the error or to reprimand the conduct of presiding officers of the subordinate Court or in some cases may direct to award appropriate punishment. However, order to award punishment shall always be subject to condition provided by Article 234 and 235 of the Constitution of India which provides that nothing shall be done which may take away from any such person any right to appeal which he may have under law regulating the condition of his services or as authorizing the High Court to deal with him otherwise then in accordance with the conditions of his services prescribed under such law. The condition of services of a presiding officer of the Court requires fairness in action and compliance of principle of natural justice. For any misconduct or unfair action a presiding officer may be punish subject to compliance of principle of natural justice.

Even if for the sake of argument it is assumed that petitioner have got no locus to challenge the impugned selection either on account of not being successful in the examination or for any other reason, on account of fraud committed during the course of examination in question and consequential resultdeclared thereafter resulting in appointment of candidates against the vacancies of Class III and Class IV coupled with power of superintendence vesting in the High Court under Article 227 of the Constitution of India, this Court possess jurisdiction to interfere with the impugned selection process. The writ petition can not be dismissed on the ground of maintainability when such malpractices have came into light during the course of hearing and after perusal of records.

Needless to say that the colour of fraud in public law or administrative law as developing is assuming different shades. It arises from a deception committed by disclosure of incorrect fact knowingly and deliberately to exercise of power and to achieve an object by the persons who is at the helms of affairs.

Shri Syed Mazhar Abbas Abidi, Chairman of the Selection Committee had stated that 1955 Rule have been followed for filling up the vacancies. The select list shows that 1947 Rule and 1950 Rule have been applied. Contrary to the averment made by the Chairman of the Selection Committee at later stage learned District Judge had stated in counter affidavit dated 3.9.2005 that 1950 Rule has been followed though in the case of Om Prakash Shukla (supra) Hon''ble Supreme Court held that 1975 Rule supersedes 1950 Rules. The select list shows that for the purpose of reservation the notification dated 29.3.1994 has been followed. Whereas in counter affidavit a reference has been made to Government Order dated 10.3.1994. At one stage correction and interpolation has been justified as natural course done by examiner on other stage it has been submitted rather admitted that it was done to remove discrimination in grant of marks and to create uniformity. A combined reading of affidavits filed by the Chairman of the Selection Committee as well as learned District Judge shows conflicting pleading on record.

According to Legal Maxims �Acta Exteriora indicant interiora secreta� i.e. act indicate the intention, applicable in the present case with full vigour. In Broom''s Legal Maxims (Tenth Edition; Page 200) it has been discussed as under:

�The law, in some cases, judges of a man''s previous intentions by his subsequent acts; and, on this principle, it was resolved in a wellknown case, that if a man abuse an authority given him by the law, he becomes a trespasser ab initio.�

Undoubtedly, learned District Judge Shri S.B. Vaish had abused his authority. It is evident also on account of fact that he had tried to defend himself by shifting the burden on the then Administrative Judge of district Barabanki. It has been stated in counter affidavit that on 4.11.2004 with the prior permission of Administrative Judge the select list was released. Though under Rule it was learned District Judge alone who was responsible to conduct the examination in a fair, just and proper manner.

Otherwise also as settled by Division Bench of this Court in a case reported in 2005 (23) LCD 548, Dr. K.K. Wadhwani v. Ms. Sumita Singh and others, while approving the judgment based on commission of fraud during the course of examination, it has been held that this Court is not powerless to exercise jurisdiction under Article 226/227 of the Constitution of India to interfere where a person holding high public office affecting peoples right had committed wrong by committing fraud, manipulation or interpolation of record to provide justice to the affected persons. Relevant portion from the judgment of Division Bench of this Court in a case of K.K. Wadhwani (supra) is reproduced as under:

�Reliance has also been palced upn the case of Basheshar Nath v. Commissioner of Income Tax and another, AIR 1959 SC 149; Dwarka Nath v. Income Tax Officer and another, AIR 1966 SC 81; Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 1789, wherein the Supreme Court had given emphasis to exercise power to preserve the constitutional rights of the people of the country; Devi Lal v. Sales Tax Officer, AIR 1956 SC 1150; Fertiliser Corporation Kamgar Union (Regd.) Sindri and others v. Union of India and others, AIR 1981 SC 344 and also on the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others, (1999) 6 SCC 464, wherein in para 59, the Court has observed as under:

�59����Every decision of the authority except the judicial decision is amenable to judicial review and reviewability of such a decision cannot now be questioned. However, a judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. On the principle of good governance reference was made to a decision of the Division Bench of the Bombay High Court in State of Bombay v. Laxmidas Ranchhoddas, (AIR Bom. at p.475, para 120). It was submitted that bad governance sets a bad precedent.�

Since relevant Rule as discussed hereinabove have not been followed while making recruitment the entire consequential appointment and selection shall be bad in law. Even if private respondents of the writ petitions have resumed duty in pursuance to impugned selection, will make no difference since selection was bad at its very inception. Hon''ble Supreme Court in a case reported in 2000(8) SCC 395, Badri Nath v. Government of Tamilnadu and others, held as under:

�This flows from the general principles applicable to �consequential orders�. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime like the recommendation of the State and by the UPSC and the action taken thereon would fall to the ground. This principle of consequential orders which is applicable to judicial and quasijudicial proceedings is equally applicable to administrative orders.�

FINDING

In view of discussion made hereinabove the outcome of present controversy may be summarized as under:

(A) Majority of the copies of unselected candidate for Class IV posts were not examined and neither grading was done nor marks were awarded on the basis of individual performance, though the copies of selectees have been examined and grades have been provided. At the face of record, the copies of nonselected candidates were dumped without their evaluation.

(B) Interviewsheet contains correction and alteration of gradings. The post of driver have been filled up by a person who does not fulfill required experience provided under 1993 Rule.

(C) The copies of Class III employees suffer from alteration of marks with downward as well as upward trends. The marks of substantial number of candidates who have received marks more than the last select candidates have been reduced by alteration with downward trend resulting into their non selection. Marks of certain selected candidates have been enhanced with upward trend.

(D) The marks in the majority of the questions have been interpolated or altered without any initial or signature of the examiner. It appears that in some copies alteration have been done by different ink. The alteration of marks with downward trend as noted by the enquiry officer (OSD of the High Court) after perusal of record and by this Court as referred in the Order sheet dated 22.12.2005 and 23.12.2005 shows that the candidates who were possessing very high marks have been put to loss resulting in their nonselection.

(E) The admission of learned District Judge Shri S.B. Vaish in his counter affidavit in Para 10(h) and 10(i) reproduced in para 13 of the present judgment seems to be a shocking defence pleaded by him. At no stretch of imagination it can be approved that reduction of marks ignoring the individual performance of a candidate may be done to bring uniformity in evaluation or to remove any discrepancy. It is the right of every candidate to obtain mark keeping in view his or her own individual performance.

(F) Though learned District Judge was the appointing authority but once he had delegated his power by constituting examination committee to conduct the examination then his involvement at any stage like coding or decoding or directing to recheck the copies of candidate possessing more than 100 marks or to interfere with the process of examination in other ways as discussed in the present judgment reflects that learned District Judge had taken undue advantage of his office for some extraneous reasons. Being appointing authority he was very well within his power to issue appointment letter or cancel the result submitted by examination Committee with intention to hold fresh examination. He was very well within his power to change the members of the examination Committee or make necessary arrangement to meet out the contingencies of services but the involvement of learned District Judge in decoding or passing an order for rechecking etc. speaks volume.

(G) The alteration in marks with downward trend, use of pencil at one stage and use of pen at other stage rechecking of some of the copies with intention to reduce marks of candidates who have achieved more than 100 marks, in violation of own procedure notified by learned District Judge amounts to commission of fraud as discussed in the present judgment.

(H) Roster in reservation has been provided relying upon the Government Order which has already been superseded by subsequent one. Relevant rules have not been followed while filing the vacancies of Class III and Class IV employees as discussed in the judgment.

The notification dated 29th March, 1994 has been superseded by the notification dated 22.10.2001 which provides applicability of roster in reservation but the same has been not followed. The notification dated 10.10.1004 relates to applicability of roster, while providing reservation, in promotional matters, it does not have got concern with the direct recruitment.

(I) Contradictory averments have been made by learned District Judge as well as Shri Syed Mazhar Abbas Abdi, Chairman of the Selection Committee relating to the applicability of rules and procedure adopted for recruitment. No qualifying marks were provided in written test for Class IV employees though the procedure or guidelines used by learned District Judge as well as interviewsheet reveals that qualifying marks should have been provided in written test for Class IV employees.

(J) It is unfortunate that the learned District Judge had tried to shift the burden of arbitrariness as well as illegalities on the Administrative Judge of the district. Being appointing authority responsibility to conduct the exam fairly and in accordance to rule was on the shoulder of learned District Judge, Shri S.B. Vaish and on no other person.

(K) The whole examination and interview seems to be farcical and sham affairs, suffer from extraneous reasons and considerations. The interpolation, cutting, overwriting and reduction of marks amount to commission of fraud and constitute a criminal offence.

In a recent judgment decided by Division Bench (Hon''ble Dr. B.S. Chauhan and Hon''ble Mr. Justice Shishir Kumar) of this Court on 25.11.2005 in Writ Petition No.31769 of 2000, Ramesh Chander (Singh) v. Hon''ble the High Court of Judicature at Allahabad and another, it has been reiterated that a judicial officer is not only sentinel of our democratic system but also the pillar of confidence against onslaughts of social injustice.

Relevant portion from the case of Ramesh Chander (supra) is reproduced as under:

�Once the conduct of the petitioner has been found to be thoroughly against all norms of judicial discipline, then such a case has to be dealt with keeping in view the observations of the Supreme Court in the case of Tarak Singh (supra) extracted herein above. A judicial officer enjoys an office which is an office of utmost public confidence. The matter in which the petitioner conducted himself in a manner would lead to the shattering of public confidence in persons holding such an office. It strikes at the root of the constitutional aspirations as expressed by our founding fathers for maintaining rule of law�����A Judicial Officer is not only sentinel of our democratic system but also the pillar of confidence against onslaughts of social injustice. The failure in duty by such an officer to carry it out with utmost devotion should be construed on the strict scrutiny principle. While dealing with such matters, not only the delinquent officer but also the public at large should be put to guard that this Court would not compromise in such matters where the conscience of the Court has been violently disturbed.�

As discussed hereinabove judiciary is the repository of the public faith. It is the trustee of the people and also its last hope and last resort. Inspite of moral devaluation in every field still it is the only temple worshipped by citizen, regardless of religion, caste, sex or place of birth. Because of power a judge exercise he/she is being judged with more strictness than the persons working in other field of Government. Integrity is the hallmark of judicial discipline. Whether it is on administrative side or on judicial side, honesty, integrity and fairness in action are always expected from a person discharging duty as the member of judiciary to maintain public faith as well as for survival of democracy. The members of judiciary have no right to claim defence even under garb of �personal life� also because they are expected to set the standard of life for the peoples. The District Judge is the head of the institution at district level. His conduct and manner of working should be beyond doubt and should give inspiration to subordinates for strengthening the people''s confidence.

It is very difficult to prove the abuse of power by the authorities whether discharging duty in the subordinate Court or on administrative side. While considering the fact that as to whether the authority had abused his power for extraneous reasons or considerations, the totality of circumstance should be taken into consideration, like, the manner in which an officer has acted, the compliance of relevant rules, integrity of persons involved in the decision making process, preponderance of probabilities on the basis of facts and circumstances on record, the final outcome of an action and so many other things which shall be depend on facts and circumstance of each case.

Even in England the abuse of power by judicial officer had noticed from time to time and appropriate actions were taken keeping in view the facts and circumstances of the case. It was noticed by Lord Denning while discussing such abuse in his treatise, �WHAT NEXT IN THE LAW�, page 314; that it was the members of Bar or lawyers who had brought on record the unethical influence of one Mr. Pulson for a favourable finding. To quote what Lord Denning has said in �WHAT NEXT IN THE LAW� (supra):

�Of all abuses of power this is the most difficult to discover or to suppress; because both briber and bribed are concerned to keep it secret. It takes place on an enormous scale, as has been shown in the last few years. It led to the notorious Poulson case. That was only brought to light by the diligence and persistence of the lawyers.�

Needless to say that it is one of the duty of members of Bar being officer of the Court to do all necessary things in a disciplined manner and within the forecorner of the law for the purity of system without being influenced by caste, creed and religion.

In case, there is fall in morality or there is abuse of power with the lust for money and prosperity, no one can be blamed except the persons holding offices or assisting the Court within the framework of our judicial system. Lord Denning in the same treatise �WHAT NEXT IN THE LAW� while appreciating the honesty and integrity of ICS Officers had reproduced with approval what Shakespeare had put in the scene in Brutus''s tent, to quote:

�It was a point of honour never to accept any gift in return for any favour. Perhaps they had read of the trial of Warren Hastings. So let us make it part of our code of practice. Shakespeare put it in the scene in Brutus''s tent:

�Let me tell you, Cassius, you yourself

Are much condemn''d to have an itching palm;

To sell and mart your offices for gold

To undeserves��..Shall we now

Contaminate our fingers with base bribes,

And sell the mighty space of our large honours

For so much trash as may be grasped thus?

I have rather be a dog, and bay the moon,

Than such a Roman.�

Needless to say that as discussed hereinabove the entire procedure and manner adopted by learned District Judge, Barabanki to fill up the vacancies seems to suffer from extraneous reasons and considerations.

The assistance provided by Shri Anil Kumar Srivastava, O.S.D. of this Court deserves for appreciation and commendation. The valuable assistance provided by him had made the things easier to appreciate the record/material relating to the examination in question.

The writ petitions not only deserve to be allowed but it should be allowed with exemplary costs keeping in view the gravity of misconduct committed by learned District Judge.

In view of above, these bunch of the writ petitions are allowed as under:

(1) The entire selection process including the select list dated 4.11.2004 as well as consequential appointment done in pursuance to said select list while filling the Class IV posts and the select list dated 5.11.2004 of Class III posts as contained in Annexure2 to the writ petition No.7017/SS/of 2004 and the consequential appointment done in pursuance to said select list, is hereby, quashed with natural consequence with costs. A writ in the nature of certiorari is issued accordingly.

The cost is quantified to Rs. One lakh (Rs.1,00,000/) which shall be payable by Shri S.B. Vaish, District Judge, Barabanki from his own resources within a period of one month from today. Out of Rs.1,00,000/, the seven candidates who have preferred these bunch of writ petitions shall be entitled to withdrawn an amount of Rs.5,000/ each from this Court. Rest of the amount shall be remitted to Legal Services Sub Committee, High Court, Lucknow Bench, Lucknow to assist the poor litigants. In case, the cost is not paid within a period of one month then the Registrar General of this Court is directed to recover the same from the salary or the post retiral dues of Shri S.B. Vaish, as the case may be, expeditiously.

(2) A writ in the nature of mandamus is further issued, commanding the opposite parties No.1 and 2 to restore the ad hoc appointees of the year 1999 who had preferred the writ petition No.6179/SS/of 2004 and to permit them to continue in service till fresh regular selection is not held in accordance to law. Opposite party No.2 is directed to hold fresh regular selection expeditiously. However, it shall be open to the opposite party No.2 to retain the services of few selectees on ad hoc basis or the erstwhile ad hoc employees of the Judgeship Barabanki with the prior permission of Administrative Judge of the district in case exigencies of services required to do so by issuing fresh appointment letters for specified period.

It shall be open to the ad hoc employees who were appointed in recent years whether they have preferred a writ petition or not to represent the opposite party No.2 for retention of their services in stop gap arrangement to meet out the exigencies of services, if any.

(3) Keeping in view the gravity of misconduct and the manner in which the selection process was held, it is a fit case where major penalty may be awarded to the District Judge, Barabanki. Though this Court may pass appropriate order recommending the Appointing Authority to award major penalty, however, it is left open for consideration by My Lord, Hon''ble the Chief Justice of the State.

Since, prima facie, a criminal offence is made out, Hon''ble the Chief Justice may also consider for referring the matter to Central Bureau of Investigation, if His Lordship pleases.

Registrar of this Court is directed to send the copy of present judgment to Hon''ble the Chief Justice as well as the Administrative Judge of district Barabanki within a period of three days from today.

(4) The entire records of the examination which was summoned by this Court shall not be released unless Hon''ble the Chief Justice or the Administrative Judge of district Barabanki requires them for perusal or for appropriate action, or it shall be kept in registry of this Court for the minimum period of one year so that in the event of filing of Special Appeal in this Court or Special Leave Petition in the Hon''ble Supreme Court the Division Bench of this Court or the Hon''ble Supreme Court may peruse the same, if necessary.

Writ petitions are allowed accordingly.

(Petitions allowed)