Suresh Kumar Kurre vs State Of Chhattisgarh

Sanjay K. Agrawal, J

In these batch of writ appeals the common question of facts and law are involved, therefore, they have been clubbed together, heard together and are being disposed of by this common order.

These two writ appeals are directed against the impugned order dated 07.06.2021 passed by the learned Single Judge by which writ petitions filed by the appellants herein have been dismissed finding no merit.

In order to consider the challenge made in these writ appeals it would be appropriate to notice essential facts necessary for the disposal of the instant appeals which are as under:-

3.1. On 29.01.2014 an advertisement was issued by the Chief Medical and Health Officer, Dhamtari, respondent No.4 herein, for recruitment and appointment on 19 posts of Assistant Grade-III. It has been mentioned in the advertisement that selection would be based on marks obtained in skill test. Pursuant to the advertisement so issued total 1214 applications were received, wherein on scrutiny 1039 applications of candidates were found eligible to participate in the selection process and accordingly, from 02.06.2014 to 06.06.2014 the skill test was scheduled to be held (which was the main test for selection on the post of Assistant Grade-III), but any how the skill test could not be conducted on the said dates and the skill test was rescheduled to be held from 09.06.2014 to 13.06.2014 but with regard to the change of date, no sufficient information / proper intimation was given to the candidates / participants which resulted into only 347 candidates could appear in skill test out of 1039 candidates on rescheduled dates, who were found eligible to participate in selection process. Thereafter, on 02.08.2014 the Chief Medical and Health Officer, Dhamtari, issued order of appointment thereby appointing 19 candidates including some of appellants herein joined on the post of Assistant Grade-III but immediately thereafter, on 08.08.2014 several candidates made complaints before the District Collector alleging serious irregularities to which the Collector, Dhamtari, took cognizance in the matter and stayed the order of appointment vide order dated 08.08.2014. The Collector, Dhamtari, appointed Additional Collector, Dhamtari, to inquire into complaints so received and submit a report. Accordingly, inquiry report was submitted, wherein it has been reported that there were serious irregularities in the aforesaid selection process on account of which the entire selection process stands vitiated. The District Collector after consideration of the report, finding the selection process was not transparent and there is gross violation of reservation policy, by order date 12.09.2014 cancelled all the all appointments made on the post of AG-III and directed for initiation of fresh recruitment process on 19 post of Assistant Grade-III against which writ petitions i.e. WP(S) No.4947/2014 & WP(S) No.1316/2015 were filed challenging the appointment in which the learned Single Judge, after hearing the parties and after considering the submissions, dismissed the writ petitions by the impugned order against which these two appeals have been preferred.

Ms. Sharmila Singhai, learned Senior counsel for the appellants (in WA No.179/2021), would submit that the learned Single Judge is absolutely unjustified in dismissing the writ petition by recording a finding which is perverse to the record, whereas, it ought to have been seen that the petitioners / appellants herein were appointed by issuance of appointment order and some of the petitioners have already joined. Therefore, even without affording any opportunity of hearing before cancelling the appointment, their appointments could not have been cancelled by the Collector, Dhamtari, and, as such, the order of learned Single Judge and order dated 12.09.2014 passed by the Collector deserve to be set aside. She would rely upon the decisions of the Supreme Court in the matters of Shrawan Kumar Jha and Others v. State of Bihar and others 1991 Supp (1) SCC 330, Balmer Lawrie & Company Limited and others v. Partha Sarathi Sen Roy and others (2013) 8 SCC 345, Ashok Kumar and another v. State of Bihar and others (2017) 4 SCC 357, Indian Institute of Information Technology, Deoghat Jhalwa, Allahabad and another v. Dr. Anurika Vaish and others (2017) 5 SCC 660, Anupal Singh and others v. State of Uttar Pradhesh and others (2020) 2 SCC 173 & Srinivas K. Gouda v. Karnataka Institute of Medical Sciences and others (2022) 1 SCC 49 to buttress her submission.

Mr. Ashish Shrivastava, learned Senior counsel for the appellants (in WA No.196/2021), would submit that complainants who have made the complaint were the unsuccessful candidates who have participated in the examination process but they have failed in selection process and in order to halt the selection process, they have questioned their appointments which is an act of afterthought and, therefore, while conducting the inquiry the Additional Collector /Inquiry Officer did not afford any opportunity of hearing to the writ petitioners / appellants herein, otherwise, they could have explained the correct factual position, as such, the selection has been conducted in most fair and transparent manner and, therefore, the learned Single Judge, is absolutely unjustified in dismissing the writ petition by not setting aside the order dated 12.09.2014 and the writ appeal deserves to be allowed. In support of his submissions, he would rely upon the decisions of the Supreme Court in the matters of Mahipal Singh Tomar v. State of Uttar Pradesh and others (2013) 16 SCC 771 & Kamal Nayan Mishra v. State of Madhya Pradesh and others (2010) 2 SCC 169.

Learned State counsel would submit that while taking cognizance of the complaints received against the appointment on the 19 posts of Assistant Grade-III, the Collector, Dhamtari, has ordered for inquiry on 08.04.2014 by appointing the Additional Collector as Inquiry Officer and Inquiry Officer has submitted the report and in his report certain illegalities were found by the Inquiry Officer and he recommended for cancellation of the examination, on the basis of which the Collector cancelled the entire process and, as such, the impugned order passed by the learned Single Judge is absolutely in accordance with law and the instant appeals deserve to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

It would be appropriate to notice the inquiry report filed by the Additional Collector / Inquiry Officer, following finding were recorded:-

A careful perusal of the above stated findings of Inquiry Officer would show that despite availability of duly stamped postal envelope the candidates were not personally informed regarding change of date of skill test on account of which out of 1039 candidates only 347 candidates could appear in the examination on rescheduled date. In the advertisement, for skill test, there was mentioning of Hindi typing only and without there being prior notice along with the Hindi typing, 25 marks of English typing skill test was taken, which amounts to change of selection process in mid-way without any basis and that was detrimental to the interest of eligible candidates and amounts to deviating from the terms and conditions of the selection process. It was also held that after taking skill test, by publishing merit list, objections were not invited and in a haste manner, the appointment order was issued which culminated into several irregularities. It was also pointed out that as required under the Chhattisgarh Health and Family Welfare (Directorate of Health Services) Class III Ministerial Service Recruitment Rules, 1989, proper Selection Committee was not constituted and as required under Rule 6 and Schedule 2(a), 20% seats were reserved for Class IV employees of the Department, whereas, in the selection process, the Rules of recruitment were violated.

Taking into consideration the vast irregularities and illegalities which have been committed in the selection process, the Collector, being the Competent Authority, cancelled the entire appointment to the post of Assistant Grade-III vide order dated 12.09.2014 and directed for initiation of fresh selection process by issuing fresh advertisement and in the writ petitions the petitioners only questioned the order dated 12.09.2014 and they did not question the inquiry report filed along with the writ petition.

The Supreme Court in the matter of Union of India and others v. O. Chakradhar (2002) 3 SCC 146 has held that illegalities and irregularities committed in conducting the selection process, if cancelled, the same cannot be faulted on the ground of violation of principles of natural justice and held in paragraphs Nos. 6 & 8 as under:-

“6. Shri Mukul Rohatgi, learned Additional Solicitor-General appearing on behalf of the appellants has placed reliance on a decision reported in Krishan Yadav v. State of Haryana (1994) 4 SCC 165 and on the basis of the same it has been vehemently urged that in a case where irregularity committed in the process of selection is all-pervasive vitiating the whole selection, in that even it would not be required that each selectee be served with individual show-cause notices. In such circumstances it will be open to cancel the whole selection. Shri P.S. Misra, learned Senior Counsel appearing for the respondent has, however, urged that it was necessary to make known to the respondent appointee about the exact and precise nature of the irregularity committed as well as misconduct if any attributable to him so that it could be possible for him to have explained the position which has otherwise adversely affected the respondent. It is further submitted that the order of termination is in clear violation of Article 311 of the Constitution as on the basis of the show-cause notice as issued, it was incumbent upon the appellant to hold an enquiry and then alone pas an order of punishment, not otherwise. It is also submitted that according to the report of CBI the beneficiaries of the irregularities could be identified and the persons against whom action has been recommended are named therein. Name of the respondent appointee is not amongst those against whom action has been recommended. The submission is that only those who got benefit of the irregularities if any, committed by the Railway Recruitment Board, should have been issued notices and action could be taken against them. All others, including the respondent who had nothing to do with any kind of irregularity and who have been selected on their own merit, their services were not liable to be terminated.

In our view the nature and the extent of illegalities and irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all-pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committed also has its relevance.”

Similar proposition has been held in the matter of Sachin Kumar and others v. Delhi Subordinate Service Section Board (DSSSB) and others (2021) 4 SCC 631 in paragraph No. 56 which states as under:-

“56. The decisions in Railway Recruitment Board [All India Railway Recruitment Board v. K. Shyam Kumar (2010) 6 SCC 614], Gohil [Gohil Vishwaraj Hanubhai v. State of Gujarat (2017) 13 SCC 621] and Kalamani [State of T. N. v. A. Kalaimani (2021) 16 SCC 217] (supra) all go to emphasise that a recruiting authority is entitled to take a bona fide view, based on the material before it, that the entire process stands vitiated as a result of which a fresh selection process should be initiated. The integrity of the selection process cannot be lightly disregarded by the High Court substituting its own subjective opinion on the sufficiency of the material which has been taken into account by the decision making authority. Undoubtedly, fairness to candidates who participate in the process is an important consideration. There may be situations where candidates who have indulged in irregularities can be identified and it is then possible for the authority to segregate the tainted from the untainted candidates. On the other hand, there may be situations where the nature of the irregularities may be manifold and the number of candidates involved is of such a magnitude that it is impossible to precisely delineate or segregate the tainted from the untainted. A considered decision of the authority based on the material before it taken bona fide should not lightly be interfered in the exercise of the powers of judicial review unless it stands vitiated on grounds of unreasonableness or proportionality.”

Reverting to the facts of the case in light of principles of law laid down by their Lordships of the Supreme Court in the matters of O. Chakradhar (supra) and Sachin Kumar (supra), it is quite vivid that the Collector, finding that in the selection process, the change of date of skill test was not notified to all 1037 participants, therefore, most of them could not appear in the skill test; further finding is that the process of selection was changed and in addition to Hindi typing, English typing examination of 25 marks was also added in absence of any stipulation in advertisement which amounted to deviation from the terms and conditions of selection process; furthermore, merit list was published without inviting objection and the proper Selection Committee was not constituted in terms of the Rules of 1989 and 20% seats were reserved for departmental candidates, contrary to rules, revoked the entire selection process and appointment already made. In our considered opinion, since the entire selection process was tainted and it was not fair in accordance with the rules and suffers from serious illegalities, therefore, the learned Collector was absolutely justified in revoking the entire selection process in which the principles of natural justice would have no application and, as such, the learned Single Judge has rightly negatived the plea raised by the writ appellants and the judgments cited by the learned counsel for the appellants in the matters of Shrawan Kumar Jha (supra), Balmer Lawrie (supra), Ashok Kumar (supra), Indian Institute of Information Technology (supra), Anupal Singh (supra), Srinivas K. Gouda (supra), Mahipal Singh Tomar (supra) and Kamal Nayan Mishra would have no application in the facts of the present case and, as such, we are unable to interdict the order of learned Single Judge dismissing the writ petition while upholding the order of the Collector dated 12.09.2014 and consequently, we do not find any merit in the instant writ appeals, accordingly appeals are dismissed. However, the Competent Authority is directed to proceed with the fresh Selection of Assistant Grade-III expeditiously, in accordance with law.