HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 17.10.2011
Judgment delivered on 25. 11.2011
SPECIAL APPEAL No. 993 of 2007
Anil Kumar and others Vs.. State of U.P. & ors
Connected with
SPECIAL APPEAL No. 992 of 2007
Ajit Kumar and others Vs.. State of U.P. & ors
AND
SPECIAL APPEAL No. 1091 of 2007
Sudhir Kumar Vs.. State of U.P. & ors
========
Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
1. These three Special Appeals under Chapter VIII, Rule 5 of the Allahabad High Court Rules 1952, arise out of common judgment dated 16.7.2007, of the learned Single Judge, by which he allowed the writ petition Nos. 1297 of 2006 (Bhupendra & others State of U.P. and others); 9351 of 2006 (Bare Lal Vs. The District Judge, Bhadohi & Ors) and 7105 of 2006 (Dhananjay Kr. Mishra Vs. State of U.P. and others), filed by Class III and Class IV employees working on ad hoc basis in the judgeship of Bhadohi (Sant Ravidas Nagar), challenging the selections of three stenographers and ten clerks in the separate select lists dated 13.1.2007, in pursuance to the advertisement dated 24.12.2003, in its entirety. He has thereafter issued directions to the District Judge to initiate steps for fresh selections (on the basis of earlier advertisement) for the posts in question. The directions have also been issued to the Registry of the High Court to provide all possible assistance - financial or otherwise, for making fresh appointments, and if some difficulty arises, the District Judge was permitted to engage such number of Class-III employees, as may be necessary, on daily wage basis for a fixed period only. Learned Single Judge refused the relief to the petitioners in the writ petitions working on ad-hoc basis to be continued, or for their reinstatement.
2. On 3.8.2007, while admitting the Special Appeals, this Court passed an order making it open to the District Judge to proceed with the selection process in terms of the directions given in the judgement; however, pursuant to the selection, the result was not to be declared, and was made subject to final decision of the Appeal.
3. By order dated 7.9.2011, the impleadment application of Sri Sanjay Mehrotra, who appeared in the re-examination on the post of Clerk held in pursuance of the direction of the learned Single Judge, filed in the Special Appeal No. 993 of 2007 was allowed.
4. On 20.9.2011, the interim order was modified to the effect that, looking into the delay, which has been caused, and the difficulties faced by the judicial officers in their working, the result of fresh selections held in pursuance to the directions issued by learned Single Judge was directed to be declared and appointments to be made in pursuance thereof, subject to the result of these special appeals.
5. We have heard Sri Ajay Bhanot assisted by Sri Vijendra Kumar Tripathi for the appellants in Special Appeal No. 992 of 2007; and Sri Rahul Sahai assisted by Sandeep Agarwal for the appellants in Special No. 993 of 2007. No one appears for the appellant in Special Appeal No. 1091 of 2007. Sri Ashish Misra, special counsel has appeared for the respondents.
6. Brief facts giving rise to the writ petitions, as detailed in the judgment of the learned Single Judge are given as follows:-
"In the judgeship of Bhadohi, sanctioned strength of clerical cadre posts is 96. In terms of the High Court Circular dated 26th May,1999, which adopts the Government Order dated 3rd September, 1995, 20% of the sanctioned Class-III posts are required to be filled by way of promotion from amongst permanent Class-IV employees of the judgeship. Calculated on the said basis 19 Class-III posts in all are required to be filled by way of promotion.
An advertisement was published on 24th December, 2003 by the District Judge, Bhadohi inviting applications from eligible candidates against 15 posts of Clerk and 3 posts of Stenographers, said to be vacant in the judgeship.
Bineet Kumar Mishra and another, who were working as Class-IV employees in the judgeship, filed Civil Misc. Writ Petition No. 164 of 2005, (which was connected with other writ petition nos. 16410 of 2004 and 38803 of 2004 filed by other Class-IV employees of the judgeship), challenging the advertisement, as published by the District Judge on the ground that direct recruitment could not be resorted to against vacancies, which were within the promotion quota of 20% referred to above. Under interim order of this Court dated 23rd July, 2004, the District Judge was permitted to hold the selections, in pursuance to the advertisement, however, it was provided that immediately after the examinations are held, the answer books should be sealed and forwarded to the Hon'ble High Court, which inturn were to be kept in the safe custody of the Registrar General.
The aforesaid writ petitions were finally decided vide judgement and order dated 21st October, 2005. The Hon'ble High Court held as follows:-
"From the assertions made in the supplementary counter affidavit extracted above, it is clear that there were 96 posts in the clerical cadre and the total number of vacancies available for promotion as per the total strength of the clerical cadre was 19. Out of these 19 posts, 9 persons had been promoted in 1997 and the total number of vacancies available for promotion in the year 1999 was 10. These 10 vacancies which were available for promotion quota continued to remain vacant till the select list of 39 class IV employees was prepared on 30.4.2003. The names of first 6 candidates were in the order of merit and was approved by the then District Judge and two candidates at sl. Nos. 1 and 2 were appointed and thereafter the list was kept in sealed cover which was opened on 30.10.2003 by the successor District Judge. The remaining 8 vacancies are yet to be filled by promotion as per the select list dated 30.4.2003. The order of District Judge dated 4.2.2005 by which representations have been decided was based on incorrect facts and he had tried to mislead this court. However, since Sri D.L. Sharma, the then District Judge, Bhadohi has since retired, I do not propose to say anything further.
From the aforesaid facts it is clear that the vacancies advertised by the then District Judge, Bhadohi on 24.12.2003 to fill 15 posts of clerks was incorrect as it also included the vacancies of promotional quota.
Learned counsel for the petitioners as well as respondents have agreed that the vacancies of promotional quota be filled according to the select list of 39 candidates prepared on 30.4.2003, in order of merit. The number of class III posts of clerks advertised on 24.12.2003 shall now stand reduced by the number of vacancies which will be filled from the promotional quota. District Judge, Bhadohi, who is also present in court, shall pass appropriate orders for promotion in accordance with law and promote class IV employees to class III posts in accordance with the select list dated 30.4.2003, Annexure-S.C.A. 2 to the Supplementary Counter Affidavit filled on 19.10.2005. He is further directed to get back the answer books of the written examination held on 25.7.2004 which are lying in safe custody of the Registrar General of this Court and shall get the answer books examined and declare the result after the appointments are made in promotional quota in pursuance of select list dated 30.4.2003. The Registrar General is directed to hand over the answer books lying in his custody in pursuance of orders of this court dated 23.7.2004 to District Judge, Bhadohi."
In view of the aforesaid judgement of the Hon'ble High Court the number of advertised vacancies, stood reduced to 7, so far as the posts of clerk are concerned.
After the answer sheets of the candidates was obtained by the District Judge, under order of this Court, the same were got evaluated and select list containing names of 20 persons, was published by the District Judge, Bhadohi on 21st December, 2005."
The select list included the names of 20 persons arranged in accordance with roster applying the rules of reservation.
It is admitted on record that as against the said select list, 10 persons in all namely, respondent nos. 4 to 13 to writ petition no. 1297 of 2006, have been offered appointment in the judgeship.
Civil Misc. Writ Petition No. 7105 of 2006 has been filed by Dhananjay Kumar Mishra for quashing the select list dated 13th January, 2006 pertaining to three posts of Stenographers, which contains the names of six persons as well as for quashing the consequential order of appointment issued in favour of selected candidates (respondent nos. 4 to 7 of the writ petition) with a further prayer in the nature of mandamus commanding the respondents to not to interfere in the working of the petitioners as ad-hoc stenographers.
On behalf of the petitioners in all these writ petitions, it is contended that the entire selection held for the post of Stenographers as well as Clerks is a farce and in violation of the Statutory Rules applicable and replete with favouritism and nepotism."
7. The selections were challenged on the ground of violation of statutory rules as well as irregularities committed during the process of selection. The petitioners in the writ petitions also challenged the selections on the ground of favouritism and nepotism.
8. Learned Single Judge summoned the records including the original answer sheets, and decided to examine the allegations himself. He also required the presence of Chairman of the Selection Committee. On 3.8.2006. The then District Judge, Bhadohi as well as Chairman of the Selection Committee had appeared before him, and made a statement that before evaluation of the answer sheets, they were transferred from the Bhadohi judgeship. The Court thus exempted their presence, and passed orders directing Sri Sudhir Kumar Srivastava, the District Judge to remain present in the Court on 10.8.2006. He was asked to file his own affidavit, stating as to how the appointments were offered on the post of stenographers without ascertaining that the selected candidates possessed of the required statutory minimum efficiency of speed of shorthand and typing.
9. On 18.8.2006, the Court examined the affidavit filed by the District Judge as well one Sri M.A. Ansari, Manager, Jai Bharat Typing Institute, Gyanpur, Bhadohi, who stated that he had examined the answer sheets of candidates pursuant to shorthand and typing test held for stenographers. He had recorded the mistakes noticed in the shorthand and typing tests on a rough sheet of paper and thereafter the speed was worked out. The Court found that he had not enclosed or preserved the rough sheet. The District Judge was asked to explain as to why mistakes of full stop, comma, paragraphing, spelling etc., were not noticed while examining the answer sheets, and to explain as to why a private agency was engaged to evaluate the answer sheets, and speed of the stenographers. The mode of payment made in respect of such evaluation was also required to be disclosed to the Court.
10. A supplementary affidavit was filed by the District Judge on 22.8.2006. After perusing the supplementary affidavit, the Court asked Sri M.A. Ansari, the Manager of Jai Bharat Typing and Shorthand Institute, Gyanpur, Bhadohi to be present in Court on 31.8.2006. On 31.8.2006, the statement of Sri M.A. Ansari was recorded. The orders dated 31.8.2006, 5.9.2006, 6.9.2006 and 12.9.2006, relevant to decide these Special Appeals quoted by the learned Single Judge in the impugned judgement are reproduced as follows:-
"31st August, 2006 "Mr. M.A.Ansari, Manager of Jai Bharat Typing and Shorthand Institute, Gyanpur, Bhadohi, is present in the Court. He has made a statement that along with the shorthand and typing answer sheets of the candidates, he was neither supplied the passage from which the dictation was given nor the time in which such dictation was read out, was disclosed. He further states that the time granted for writing of the shorthand dictation as well as in respect of Typing Test was also not disclosed to him. On his request, subsequently the passage from which the dictation was given, was handed over. After going through the passage, which was handed over to him, he calculated the speed on the presumption that the passage was read out in 5 minutes and the time given for transcribing the same was presumed as 10 minutes. He further stated :
"I had examined the answer sheets of shorthand and typing test, at the residence of District Judge, Bhadohi. The total number of answer sheets of shorthand and typing test, which were examined by him, were 390 that were examined in a span of 7 days only. I visited the residence of District Judge at 10:00 a.m. In morning, continued to examine the answer sheets till 1:00 p.m. (afternoon), then there was a break of one hour. I returned at 2:00 p.m. For examining the answer sheets again, which continued till 5:00 p.m.,"
"The rough sheets on which I calculated the speed of the candidates concerned was destroyed by me one the same day. Such rough sheets were never handed over to the District Judge, Bhadohi."
Lastly he stated that for transcribing the passage, in long hand by the students after shorthand dictation, no time limit prescribed by the District Judge was brought to his knowledge at any time.
On being asked as to what the figures recorded on the answer sheets of the shorthand and typing test i.e. 42 out of 100 and 44 out of 100 (total 86 out of 200) depicted. Mr. M.A.Ansari made statement that the said marks depicted the speed of the candidates concerned.
On further being asked as to what was the speed, according to the figures, recorded by him, he was unable to answer. Sufficient time was granted to him to explain the same, but no response could be received. After great hesitation, he finally admitted that the figures recorded on the first page of the answer sheet depict the marks awarded to the candidates concerned, and not their speed. He has further stated that the calculation, which has been done by him in the Court on two sheets (which have been kept on record), were only an attempt to somehow or other explain the alleged speed of the candidates.
It is further stated that he may be time till tomorrow i.e. 1st September, 2006 to file an affidavit seeking pardon for the mistaken facts stated in the calculation sheets today in the Court as well as in the earlier affidavit filed by him.
Put up tomorrow i.e. 1st September, 2006.
An affidavit filed by Mr. M.A.Ansari, Manager of Jai Bharat Typing and Shorthand Institute, Gyanpur, Bhadohi today may be taken on record."
On 1st September, 2006 affidavit was filed by Mr. M.A. Ansari, however, on the request of District Judge the case was adjourned to 5th September, 2006. On 5th September, 2006 and 6th September, 2006 following orders were passed:
5th September, 2006 "The District Judge, Bhadohi Sri Sudhir Kumar Srivastava is present in the Court. He has made a statement that he is not aware of the speed achieved in the shorthand and typing test by the selected candidates for the post of Stenographers. He further states that speed, if any, was worked out by the Manager of Jai Bharat Typing and Shorthand Institute. It is further categorically stated that he is not aware as to what was the typing and shorthand speed achieved by the candidates to whom he has offered appointment as Stenographer.
In the statutory rules pertaining to appointment on the post of Stenographer in the Establishment of the Subordinate Courts, specifically Rule 5(c) of the Subordinate Civil Courts Ministerial Establishment Rules, 1947, provides as follows:
"5(c). he possesses in the case of a candidate for the post of stenographer a diploma or certificate from a University or a recognized short hand and typewriting institution, showing that he possesses a speed of at least 100 words per minute in shorthand and 35 words per minute in typewriting."
It is surprising that the District Judge has no knowledge of the aforesaid statutory rules inasmuch as he is not able to inform the Court that the selected candidates have achieved the minimum speed as prescribed under Rule 5(c). Counsel for the District Judge Sri K.R. Sirohi states that having regard to the marks awarded by the examiner, who has examined the answer sheets of shorthand and typing test, a merit list was prepared and on the basis of the said merit list appointments were offered to the candidates on the posts of Stenographer. He is not able to establish as to how candidates, who secured highest marks in the merit list, have achieved requisite prescribed speed as required under Rule 5(c).
In view of the aforesaid, this Court has no hesitation to record at this stage that the District Judge as well as Counsel for the District Judge are not in a position to explain as to how requirement of Rule 5(c) has not been satisfied before offering appointment. Let the District Judge, Bhadohi shall file his personal affidavit by tomorrow categorically stating as to why he has offered appointment to the selected candidate without ensuring compliance of Rule 5(c).
Put up tomorrow i.e. 06.09.2006."
6th September, 2006 "The statement made by the District Judge in paragraph 3 of the counter affidavit hat he believed that the candidates had the required speed as per the provisions of Rule 5 (c) of U.P. Subordinate Civil Courts Ministerial Establishment Rules, 1947 is apparently a statement made without any basis.
Further the statement that on the basis of marks awarded in respect of shorthand and typing test, he had offered appointment as per the merit disclosed, is also based on complete non consideration and ignorance of the Division Bench Judge of this Court. This Court has specially held that mere filing of certificate qua the minimum speed prescribed in Rule 5 (c) of the aforesaid Rules, is not necessarily sufficient. If the Rules necessarily requires that the candidate must also achieve the required minimum speed in the test held before he can be offered appointment.
The aforesaid stand of the District Judge shall be dealt with further at the time of final disposal of the Writ Petition. Counsel for the respondent, Shri Neeraj Upadhyaya is directed to summon all the applications received in respect of the post of Stenographer, in respect of the selections in question and to produce the same before the court on 12.09.2006.
Put up on 12.09.2006.
Appearance of the District Judge, Shri Sudhir Kumar Srivastava is exempted unless directed otherwise.
It is open to the respondent as well as to the petitioner to apply for copies of the affidavit filed by the General Manager of the Jai hind typing Institute as well as that filed by the District Judge, Shri Sudhir Kumar Srivastava in the present writ petition, as well as to obtain copies of the orders which have been passed by this Court from time to time so that they may be aware of the facts which are on record."
Again on 12th September, 2006 following order was passed:
12th September, 2006 "The original forms of the selected candidates for the post of Stenographer produced today by Shri K.R.Sirohi, counsel for the High Court as well as District Judge concerned, have been examined by this Court. It is apparent that except for one Shri Indra Deo, certificates of all other selected candidates do not state that the candidates had minimum prescribed speed in shorthand.
In view of Rule 5 of the Establishment Rules, 1947, as well as in view of the conditions mentioned in the advertisement inviting applications, the applications filed by these candidates were liable to be rejected at the threshold as they were not accompanied by a certificate as required under the Rules/advertisement qua the minimum speed of the candidates concerned in shorthand.
Not only such applications have been processed, the candidates have been invited for selections and have ultimately been selected. Counsel for the District Judge as well as the selected candidates have been permitted to examine the applications in the Court itself. They have not been able to dispute the facts as recorded herein before.
Let an affidavit be filed by the District Judge as well as selected candidates categorically stating as to whether their candidature could have been entertained for the post of stenographer in view of the Rule 5 of the Establishment Rules, 1947/conditions mentioned in the advertisement or not.
Original applications of the selected candidates may be retained by the Bench Secretary, the other records may be returned.
Put up on 05.10.2006 for further hearing."
11. Learned Single Judge has observed that original answer sheets do not show the speed of shorthand and typing of the candidates so examined. He further found that the applications were not accompanied by a certificate from any recognized Institute or University to establish that the candidates have the required minimum speed of typing and shorthand as per Rule 5 (c) of the Subordinate Civil Courts Ministerial Establishment Rules, 1947. He observed and concluded that the marks recorded on the answer-sheets were based on mere calculation done by the Manager of the Private Typing and Shorthand Institute, who himself is possessed of a Diploma in Shorthand and Typing from another private institute. He was not qualified and could not have been engaged for examining and evaluating the answer sheets of stenographer examination. Although the word 'recognized', qualifying the words shorthand and typing institute has not been defined/explained in Subordinate Civil Courts Ministerial Establishment Rules 1947, nor it has been stated as to who has the competence to recognize such institute, yet some meaning has to be attached to the word 'recognized' and thus every institute, which imparts education in shorthand and typewriting cannot be said to be covered by the definition. The word 'recognized, must necessarily mean that such institute of shorthand and typing, which have either received recognition from any statutory body, or by the State Government or at least from the High Court on the administrative side. Sri M.A. Ansari, who himself was not possessed of any degree/certificate from any recognized institute, had no authority of law, to act as the examiner in respect of shorthand and typing test for appointment on the post of stenographers in the judgeship.
12. Learned Single Judge thereafter found that though in the advertisement dated 24.12.2003, itself it was provided that candidate must possess of minimum speed of 100 words per minute in Hindi shorthand; 35 words per minute in Hindi Typing and knowledge of English shorthand and typing as additional qualification, certificates filed by the candidates did not verify that they possess the required minimum speed of 100 words per minute in Hindi shorthand and 35 words per minute in Hindi typing. The District Judge was well aware of the statutory requirement of qualification; he however, violated the statutory rules, and offered appointment from the select list prepared of the candidates, who were neither eligible nor their answer books were evaluated by the competent person.
13. Learned Single Judge observed that mistakes in the answer sheets were not taken into account and that the basis of calculating the speed of shorthand and typing was not given. The person examining the answer sheets had not retained the rough sheets. He had not calculated the speed, and could not give any satisfactory answer to the manner in which he had come to such conclusion. Learned Single Judge has thus observed that entire selection for the post of stenographer in pursuance to the advertisement dated 24.12.2003, was a farce and a mere paper transaction.
14. So far as selection of clerks is concerned, learned Single Judge first referred to the rules applicable for selection viz., U.P. Subordinate Civil Courts Ministerial Establishment Rules 1947, as framed in exercise of powers under clause-B of sub sections (1) and (2) of Section 241 of the Government of India Act 1935, read with Rules for Recruitment of Ministerial Staff to the Subordinate Offices in Uttar Pradesh 1950, framed under Article 309 of the Constitution of India. He referred to the judgement of the Supreme Court in Om Prakash Shukla Vs. Ahilesh Kumar Shukla & others [AIR 1986 SC 1943], in which it was held that Rule 9 to 12 of Subordinate Civil Courts Ministerial Establishment Rules 1947, stand superseded by the Rules for Recruitment of ministerial Staff to the Subordinate Offices in Uttar Pradesh, 1950. A circular was issued by the Allahabad High Court on administrative side on 2.1.1987, directing all the subordinate courts to follow the Recruitment of Ministerial Staff to the Subordinate Offices in Uttar Pradesh, 1950, on Class-III posts. An amendment was made in Rule 6 (2) of Rules of 1950, which laid down procedure for appointment on the post of Clerk, as has been provided vide circular dated 1.11.1973. The amended Rule 6 of Rules of 1950 provides for a competitive examination, which includes written test as well as oral test. The amended Rule 6 of the Rules of 1950, is quoted hereunder:-
"6. Subject of the tests: - (1) The competitive tests shall comprise a written test as well as an oral test.
(2) The subjects of the tests and the maximum marks on each subject shall be as follows:
Subject Marks ORAL (i) Personality 25 (ii) General Knowledge and suitability for the 25 particular post. WRITTEN (i) Simple drafting (in Hindi) 50 (ii) Essay and precis writing (in Hindi) 50 (iii) Simple Drafting and precis writing (in English) 50 OPTIONAL (i) Typewriting in English and Hindi 50 (ii) Shorthand in Hindi and English 50 NOTES Candidates must take one of the abovementioned optional subjects, but may take both, if they so choose." 15. The circular issued by the High Court on 9.2.1995, for typing test on recruitment provides as follows:
"Hon'ble the Chief Justice and Judges have considered the matter of marks obtained by Candidates appearing in optional subjects in addition to the compulsory subjects, in recruitment tests held under the U.P. Subordinate Courts Ministerial Establishment Rules, 1947 as amended from time to time and it has been decided that the marks obtained by a candidate appearing in the optional subjects on his possessing the prescribed speed in shorthand and typewriting, may not be added to the marks obtained in the written test for the purposes of the merit list, which shall be prepared after conducting examination both in compulsory and optional papers, but while preparing the Register of selected candidates under Rule 14 (1) of the U.P. Subordinate Courts Ministerial Establishment Rules, 1947, an entry be made in remarks column against the name of the Candidate who has qualified also as a stenographer or as a typist.
I am, therefore, to ask you to kindly ensure strict compliance of the Court's decision in the matter in connection with all recruitment test held under the U.P. Subordinate Courts Ministerial Establishment Rules, 1947, as amended from time to time."
16. Learned Single Judge examined the original answer sheets of selected candidates. He has fairly observed that he is not an expert for evaluation of the answer sheets and is not making any such exercise, and has confined his examination only to such illegalities, which according to him, were so fundamental that no reasonable man could have ignored them. His observations regarding the answers given by candidates, who were selected in respect of writing answer to question No.5 - 'write a letter to your brother to go on a tour', and of wrong precie to question No. 6, would show that candidates with Roll Nos. 109, 4208, 4441 and 5793 had given identical answer on the question No.5, and from which he found that not only the letter written was in same language, it also bears same silly mistake. The answer to question No.5 - 'write a letter to your brother to go on a tour, is quoted below:
"I come to know that your college committee has made a programme per tour you should know that every tour provides severae knoweges and expences, which is very necessary for life. it you have dificiency of money then inform me. I shail provide all the expendatures. With all the love and best wishes.
Your brother.
...................."
17. Learned Single Judge again found, in respect of the same candidates, that they had written the precie of the passage quoted in the question paper with same title and with the same mistakes. He was of the opinion that all the four candidates could not have written the same precie with same mistakes. The precie of the passage, written by four candidates, is quoted as below:-
. "Title-(Ujjain the city of judgment) The place where the great peoples born becomes hystorical and remembered for ever. Ujjain is famous for the judgment of Vikramaditya and poet Kalidas. Vikramaditya was a greatest judge. His judgment is wise and satisfactory that robbers and thieves were gating shockat that Time, and peoples were happy.
It mean that in a place society where the judgment is transparent and happy and become developed."
18. Learned Single Judge thereafter found that selected candidates with Roll Nos. 198, 3204 and 3442 had also written similar answer to question No. 5 - 'write a letter to your brother to go on a tour' with same mistakes. Their precie writing was also identical. In respect of selected candidate with Roll No.3133, learned Single Judge found that answers given by him to question Nos. 5 and 6 make absolutely no sense, yet 12 marks each were awarded. In respect of selected candidate with Roll No. 4461, there was apparent overwriting in respect of the marks awarded to question No.6, and no title to the passage has been given, yet 18 marks were awarded. In respect of selected candidate with roll No. 3139, learned Single Judge found that instead of writing precie not more than 50 words, he had written it in 85 words, and that title given to the passage was incorrect and spelling of the title was also incorrect, yet he was awarded 9 marks. On answer to question No.5, there was apparent overwriting in respect of marks originally awarded as '8', to which figure '1' was added to read as '18'. The answer to question No. 1 (a) (b) (c) and (d) of Part-D was either wrong or not given, yet 1 1/2 (one and half) marks have been awarded. Answer to question No.2 of Part-D was wrong, yet one mark was awarded after scoring out '0' (zero), which was earlier awarded. The selected candidate with roll No. 2369 was originally awarded '2' marks to the answer in respect of question No.6, but figure '1' subsequently added so as to read '12', and the letter written in respect of question No.5, makes no sense yet 13 marks were awarded. Similarly the learned Single Judge found that there were overwriting or interpolation in the marks awarded to selected candidates with Roll No. 5650, 506, 1940, 2315, 5005. The answers given by them also made no sense yet they were awarded marks.
19. After noticing these mistakes, the learned Single Judge observed that he had no hesitation to record that selections held were far from being free and fair; ulterior considerations/outside pressures had weighed with the Selection Committee/District Judge and that in view of the principles of law laid down by the Supreme Court of India in Union of India and others Vs .Rajesh P.U. Puthuvainikathu and another [(2003) 7 SCC 285] and State of U.P. and others Vs. U.P. State Law Officers Association and others [AIR 1994 SC 1654] there was no public interest involved in saving such illegal appointment. He also noticed that appointments in judiciary must be made strictly in accordance with rules and observing fairness in the examination process. The High Court must clean its own house so that common man will continue to have faith in the higher judiciary. He noticed that writ petitions were filed in the past questioning the propriety and legality of selections made in various judgeships in the State, namely, judgeships of Bareilly, Mirzapur, J.P. Nagar, Hathras, Baghpat, Kaushambhi and Bhadohi, and requested Hon'ble the Chief Justice to consider the recommendations made by the Division Bench in District Judge, Baghpat and another Vs. Anuragh Kumar and others [2005 (2) E.S.C. 1509], for making necessary amendment in the rules at the earliest possible time, so that selections on Class-III Ministerial posts in various District Judgeships may be conducted by the High Court itself. In the end, the learned Single Judge imposed cost of Rs.10,000/- on Sri Sudhir Kumar the District Judge, Bhadohi, to be paid through bank draft in favour of Registrar General of the Court for being deposited in the fund of High Court, Legal Services Committee, Allahabad.
20. Sri Ajay Bhanot, learned counsel for the appellants in Special Appeal No. 992 of 2007 submits that the writ petition was not maintainable, as all the selected candidates had not been impleaded as parties. Learned Single Judge could not have written findings against the selected candidates, without giving them opportunity of hearing. Sri Bhanot has relied upon decision of the Supreme Court in Sadanand Halo and another Vs. Mumtaz Ali Sheikh and others [JT 2008 (3) SC 74] in support of his submission. He submits that candidates who had participated in the selection/recruitment process without any demur or protest were estopped from challenging the selection proceedings after they were declared unsuccessful vide Union of India Vs. S. Vinod Kumar and others [2007 (8) SCC 100].
21. Sri Ajay Bhanot submits that the writ petition was filed on the allegations that the selected candidates were relatives of the employees of the Judgeship. Except two candidates, who happened to be relatives and were selected on their own merit, no other candidate was found to be related to the employees of the Judgeship. It was denied in the counter affidavit that no one was related to the employees in the Judgeship, nor any finding to that effect had been recorded by the learned Single Judge.
22. Sri Ajay Bhanot submits that the learned Single Judge has exceeded in exercise of his jurisdiction by entering into the shoes of the experts, namely, the examiners. The opinion of the experts, should not be substituted with the findings and opinion of the Court, merely because two views are possible. Learned Single Judge could not have himself re-evaluated the answer sheets of the selected candidates. He has adopted yardsticks of his own in revaluating the answers. Learned Single Judge has not referred to any material nor given any reasons on the evaluations suggested by him. The findings were arbitrary, and based on conjectures. The procedure adopted by him was in gross violation of principles of natural justice. The selected candidates were not put to notice about the material adverse to them, nor were given any opportunity to look into the material, and to contest the same. No attempt was made to segregate the tainted candidates from the meritorious ones, even though segregation could not pose any problem.
23. Sri Ajay Bhanot submits that the findings of mass copying and use of unfair means were perverse, and were based on no evidence at all. It was tentative based on perusal of two questions of some answer sheets of one paper (English paper) only. Similarly the finding of ulterior consideration/outside pressure is not based on any pleadings or proof at all. All the findings are based on conjectures. There were more than 5,000 candidates, who had appeared in the examination. Even if for the sake argument there was similarity in the mistakes committed by three candidates (through it was not admitted), a conclusion of mass copying was not warranted. Such common mistakes could not lead to cancellation of a selection process.
24. Sri Ajay Bhanot submits that there was no pleading nor the examination was challenged on the ground that oral test was not conducted for stenographers and clerks. In almost all the district judgeships, where selections have been held in recent past including Farrukhabad, Kannoj, Bareilly, Unnao, Behraich, Basti, Meerut, Shahjahanpur, Mahoba, Muzafar Nagar, J.P. Nagar, Badaun, Etawh and Balrampur, no oral tests and typing tests were conducted. The typing test was not mandatory in respect of clerks and the marks of typing tests were not counted towards the merit of candidates applying for the post of clerks. This fact was admitted in the counter affidavit filed by the High Court on the administrative side.
25. In the end, Sri Ajay Bhanot submits that the High Court, on the administrative side, had defended the conduct of the examination. In respect of two candidates, namely, Roll No. 5883 Vinay Kumar Tripathi and Roll No. 942 Awadhesh Kumar Pal, no objection has been raised by the learned Single Judge in the judgement.
26. Sri Ashish Misra, learned Special Counsel appearing for the High Court and District Judge has defended the judgment of the learned Single Judge on the ground that once the learned Single Judge summoned the records; examined the answer sheets and has found that the mandatory rules for holding test were not followed, and that there was mass copying and irregularities, it was open to the learned Single Judge to cancel the result. The District Judge could not justify the procedure adopted for holding the examination in which ineligible candidates, who did not have requisite speed of Hindi shorthand and typing and did not produce the certificate from the accredited typing institute, were allowed to participate. It was found that method of evaluation of the speed of shorthand and typing had no basis in respect of stenographers, and further that mass copying with similar passage and mistakes in precie writing and letter writing were found, the learned Single Judge did not commit any error in exercise of his jurisdiction in cancelling the result. The learned Single Judge has observed that in respect of selected candidates there was overwriting in the marks and that many of the selected candidates were given marks for questions on which they had not given any answer, or had given reply in an absurd manner. He submits that the learned Single Judge did not commit any error of law in finding that the examination procedure followed by the District Judge violated the mandatory rule inasmuch as ineligible candidates were allowed to participate in the written test for stenographers, and the oral test as well as typing test were not conducted in respect of the clerks. Although there is no clear finding with regard to outside pressure, the circumstances were so clear, in arriving at such a conclusion.
27. In Inder Preet Singh Kahlon and others Vs. State of Punjab and others [2006 (11) SCC 356], the Supreme Court considered the question of violation of principles of natural justice in terminating the services of 28 persons in Executive Class I, and 63 persons in Executive Class-II, selected by the Punjab Public Service Commission in between 1996 to 2002 in various batches on a vigilance enquiry. A Full Bench of Punjab & Haryana High Court had dismissed the writ petition against the orders of the State Government, terminating the services of the petitioners. The judgement of the High Court was challenged in the Supreme Court on the grounds of (i) violation of provisions of Articles 14, 16, 21 and 315 of the Constitution of India; (ii) principles of natural justice were completely given a go-by by the State in passing the impugned orders of termination; (iii) some of the appellants having successfully completed three years of probation, they would be deemed to have been confirmed in terms of Rule 23 of 1976, and thus their services could not have been terminated without holding regular inquiry in terms of Punjab Civil Services (Punishment and Appeal) Rules 1970; (iv) Rule 23 of the 1970 Rules could not have been invoked for dispensing with the services of appellants as it had not been shown that their work, conduct and performance were unsatisfactory during the period of probation; and (v) no proper material by way of admissible evidence having been made available on the basis whereof the State could form a bona fide opinion that the entire selection processes were tainted, the impugned orders of termination must be held to be bad in law.
28. The Supreme Court held that the appointment made in violation of Articles 14 and 16 of the Constitution of India would not be void, nor could be treated to be a nullity. Since the services of the appellants were terminated not in terms of the rules but in view of the commission of illegality in the selection process involved, the applicability of the relevant provisions of the statutes as also the effect of the provisions of Articles 311 of the constitution was not required to be considered. The appointing authority, however, before arriving at a finding that the appointments were made in violation of Articles 14 and 16 of the Constitution of India must take into consideration the foundational facts. When the services of employees are terminated inter alia on the ground that they might have aided and abetted corruption and, thus either for the sake of probity in governance or in public interest their services should be terminated, the court must satisfy itself that conditions therefor exist. The Court while setting aside a selection may require the State to establish that the process was so tainted that the entire selection process is liable to cancelled. In such a case, the question which requires serious consideration is as to whether due to the misdeed of some candidates, honest and meritorious candidates should also suffer.
29. The Supreme Court observed in paras 46, 50 and 51 that a distinction exists between a proven case of mass cheating, for a board examination, and an unproven impugned charge of corruption where the appointment of a civil servant is involved. Only in the event it is found to be impossible or highly improbable that the tainted cases can be separated from the non-tainted cases, could en masse orders of termination be issued. Both the State Government as also the High Court in that view of the matter should have made all endeavours to segregate the tainted from the non-tainted candidates.
30. The Supreme Court further held that if the services of appointees who had put in a few yeas for services were terminated, compliance with three principles at the hands of the State was imperative viz.,:- (1) to establish in regard to the sufficiency of materials collected, so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) to determine the question that the illegalities committed went to the root of the matter, which vitiated the entire selection process. Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) whether such material enabled the State to arrive at a satisfaction that the officers in majority, had been found to be part of the fraudulent purpose, or the system itself was corrupt.
31. The Supreme Court did not agree with the inference drawn on certain facts and in particular the circumstances enumerated by the High Court, which were repeated by the State, and held that in that case it was difficult to accept that it was demonstrated by the State that it was absolutely impossible for it to separate the innocent people from the tainted ones. By appointing an independent Screening Committee, it is possible to infer that even according to the State, sifting of evidence by an independent body was possible.
32. The Supreme Court thereafter observed that the High Court has noticed that what is not available are the records relating to the procedure adopted in regard to the appointment of paper-setters. The records could be destroyed only after a period of five years but it was not pointed out by the State that as to how by reason of the non availability thereof, it became difficult for the authorities to arrive at the correct facts, and even after noticing all relevant information was available and submitted to the Court, fair investigation into the whole affairs was not an impossible tasks. It was not proved that despite availability of all such records a thorough investigation had been made so as to arrive at a satisfaction that the entire selection process suffered from a large scale fraud. It was also not found that all the appointments were made on extraneous considerations including monetary consideration. The High Court was therefore not right in applying the principle of mass cheating cases in the case. The Supreme Court thereafter gave directions in para 95, which are relevant for the purposes in the instant case is as follows:-
"95. We would, furthermore, request the High Court to consider the desirability of delineating the area which would fall for consideration by such Committees within a time frame. Copies of such reports of the Committees shall be supplied to the learned counsel for the petitioners and/or at least they should be given inspection thereof. The parties shall be given opportunity to inspect any document including the answer sheets etc. if an application, in that behalf is filed. Such inspection shall, however, be permitted to be made only in presence of an officer of the court. The Appellants shall be given two weeks time only for submitting their objections to such reports and their comments, if any, on any material whereupon the High Court places reliance from the date of supply of copies or inspection is given. Having regard to the fact that the appellants are out of job for a long time, we would request the High Court to consider the desirability disposing of the matter as expeditious as possible and preferably within the period of three months from the date of receipt of the copy of this order. Before parting with the case, however, we may observe that it is expected that the State having regard to the magnitude of the matter shall leave no stone unturned to bring the guilty to book. It is the duty of the State to unearth the scam and spare no officer howsoever high he may be. We expect the State to make a thorough investigation into the matter. These appeals are allowed to the aforementioned extent and with the directions and observations made hereinbefore."
33. In Basudeo Tiwari Vs. Sido Kanhu University and others [AIR 1998 SC 3261], the Vice Chancellor of the University decided to terminate the services of the petitioner on the ground that the appointment was made contrary to the provisions of the Act, Statute, Rule or Regulation etc. The decision taken by the Vice Chancellor was sought to be defended that where the appointment was in violation of the Act, Statutes, Rules or Regulations, it was not necessary to afford opportunity of hearing to the petitioner-appellant. The University relied upon Section 35 (3) Bihar Universities Act, which provided that any appointment or promotion made contrary to the provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorized manner shall be terminated at any time without notice.
34. The Supreme Court held that in order to arrive at a conclusion that an appointment is contrary to the provision of the Act Statutes, Rules or Regulations etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion, necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. It was further held by the Supreme Court in paras 12 and 13 of Basudeo Tiwari 's case (Supra) as follows:-
"12. ... ... ... To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry will the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case [AIR 1991 SC 101]. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc., and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read.
13. Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained."
35. In Jaswant Singh and others Vs. State of M.P. and others [(2002) 9 SCC 700], the order of the Collector annulling the appointments of the petitioner on the post of Lower Division Clerk (LDC) were quashed on the ground that such order could not be passed without affording opportunity of hearing to him.
36. In Jyotish Kaiborta and others Vs. State of Assam and others [(2009) 4 SCC 516] the Supreme Court did not appreciate the reasons assigned by the High Court for condemning the select list. It was observed that in case, in viva voce very higher marks were given to candidates who secured low or very low marks in the written test that might be a ground for suspicion. But if the candidates securing higher marks in the written test were able to secure equally higher marks in viva voice, there is no anomaly. There has to be some difference between the selected and the unselected candidates. The High Court has not made clear the 'distinct pattern' it was able to discern from scrutiny of the marks awarded to candidates. The approach of the High court is contrary to law. It was held that the selection could not have been cancelled on the ground of suspicion. The Supreme Court relied upon Sadananda Halo Vs. Momtaz Ali Sheikh [(2008) 4 SCC 619 in which it was held in paras 49, 58 and 65 as follows: -
"49. Learned Single Judge in his judgment has observed that as per the report of the amicus curiae the selected candidates got higher marks in viva voce ranging between 30 and 41 marks. In our opinion this has hardly any effect and merely because the selected candidates got the higher marks ranging between 30 to 41 marks that by itself could be no reason to reject the selection. We have extensively referred to the comments made by the learned Single Judge in the earlier part of the judgment where the learned Judge has in fact recorded his satisfaction for the printed charts and more particularly about their authenticity. The learned Judge has also expressed his satisfaction with the procedure adopted. There is hardly any reason given by the learned Single Judge excepting that the benchmark of 250 candidates had already been crossed."
"58. It is settled law that in such writ petitions a roving inquiry on the factual aspect is not permissible. The High Court not only engaged itself into a non-permitted fact-finding exercise but also went on to rely on the findings of the amicus curiae, or as the case may be, the scrutiny team, which in our opinion was inappropriate. While testing the fairness of the selection process wherein thousands of candidates were involved, the High Court should have been slow in relying upon such microscopic findings. It was not for the High Court to place itself into a position of a fact-finding commission, that too, more particularly at the instance of those petitioners who were unsuccessful candidates. The High Court should, therefore, have restricted itself for the Selection Committee and also in the process assumed the role of the respondents. Unfortunately, the High Court took it upon itself the task of substituting itself for the Selection Committee and also in the process assumed the role of an appellate tribunal which was, in our opinion, not proper. Thus, the High Court converted this writ petition into a public interest litigation without any justification."
"65. We also do not approve of the approach adopted by the learned Single Judge of the High Court as going all the way into the facts and the microscopic details not via the pleadings of the parties but on the basis of an unnecessary investigation. We also disapprove of the logic of relying on the findings arrived at only on the basis of sample survey. Such selection of large number of candidates could not have been set aside on the basis of same survey. No evidence was available before us as to the proportion of this so called "sample survey" "
37. In Union of India and others Vs. Rajesh P.U., Puthuvalnikathu and another [(2003) 7 SCC 285], the Supreme Court applied the principle of proportionality in cancelling the entire selection by the competent authority. It was held that in the absence of any specific or categorical findings of wide spread infirmities of an all-pervasive nature undermining selection process, the competent authority had misdirected itself in taking such an extreme unreasonable decision of cancelling the entire selections. It was found that the Special Committee has extensively scrutinized and reviewed the situation by re-evaluating the answer sheets of all the 134 successful as well as 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment; there wan no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee The Supreme Court held that even after applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than hat was strictly and reasonably to meet the situation. The competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections,
38. A judgement of the learned Single Judge in Sunil Kumar Vs. State of U.P. and others [writ petition No. 43201 of 2010, decided on 22.12.2010] relied upon by Sri Ajay Bhanot, also needs a mention to point out that on a complaint of applying different standards adopted for appointment of Forest Guards by the State Government on the ground of violation of rules and irregularities, the learned Single Judge in a bunch of cases quashed the order of the State Government dated 16.10.2009, cancelling the examination of various guards and drivers on the ground that before taking a decision to cancel the examination, the State Government had to be satisfied from the materials on record that the selection process was tainted, and to determine whether the illegalities pointed out go to the root of the matter and vitiate the entire selection process. Such satisfaction is to be gathered through investigation in a fair and transparent manner. Where opportunity was not given to the appointed candidates before terminating their services, appointment could not be cancelled on the ground of suspicion and fairness in the selection process. A distinction exists between a proven case of mere cheating in a Board Examination and unproven imputed charge where appointment of a Government servant is involved. Learned Single Judge observed that if the State had relied only on the report then, as noticed, things would have been different, but as reliance has been made on the averments in the supplementary counter affidavit and the records, it was necessary that adequate opportunity be given to the petitioners who have worked for a considerable period after appointment and the members of the committee who held the examination.
39. In the present case, it is not denied that the petitioners were appointed on 16.1.2006 and had worked upto to 16.7.2007, when the judgement was delivered. It is not denied that all the selected candidates were not made parties to the writ petition. It is also not denied that the learned Single Judge did not order for any enquiry by appointing any person or a committee to look into the irregularities in the examination, and examining the answer books.
40. The challenge in this case to the appointment of stenographers was not based on the ground on which the appointments have been cancelled by the learned Single Judge. The writ petition was filed by stenographers working on ad hoc basis on the allegations in paras 12 and 13 that that no written examination was conducted and only shorthand and typing tests were held, in which the petitioners had participated, performed very well, and did not commit any mistake. The petitioners at the time of their ad hoc appointment had also appeared in the test and were working regularly since July 2003. In para 16 of the writ petition it was alleged that bungling and irregularities at large scale have been committed in the selection. The person selected at Sl. No.2 Sri Rajani Kant is son of Sri Uma Shankar Tewari, who is working on the post of Munsarim in the Judgeship of Bhadohi at Gyanpur. The real elder brother of Rajani Kant, namely Sri Anant Ram Tewari is also working as stenographer in the same Judgeship and was himself deputed in the examination cell for examining the answer sheets of shorthand/typing. The candidate selected at Sl. No.3 Indra Deo Son of Sri Brij Lal is brother-in-law of one Amrit Lal Pal, working as Orderly to the District Judge Bhadohi. Sri Indra Deo had not even submitted his application form for the post of stenographer. He did not obtain bank draft to be submitted as examination fee. In para 20 of the writ petition, it was alleged that huge amount of money towards illegal gratification was being demanded through mediators from the candidates to be declared selected within top three candidates in the select list. It was stated in para 21 of the writ petition that the select list was prepared in utter violation of statutory rules. In para 25, it was stated that the answer sheets of the candidates including the petitioner were not examined fairly inasmuch as before evaluation/examination of the answer sheets by the examiner, no code numbers against the Roll Numbers were allotted and thus it was left open to pick and choose the candidates as per the wishes of the concerned examiners as well as the Selection Committee. Out of 300 candidates for the post of stenographer for filling up only three vacancies, two selected candidates were close relatives of the employees and were given higher marks.
41. Similarly in writ petition No. 1297 of 2006, the selection of Clerks was particularly challenged on the ground that selected candidates namely Ajit Kumar, Smt. Meenu Srivastava, Sri Sabir Ali, Sri Vinay Kumar Tripathi Sri Manish Kumar, Sri Ratan Lal Srivastava, Sri Pradeep Kumar Yadava, Sri Vishnu Pandey, Sri Awadhesh Kumar Pal, Sri Samar Jeet Singh, Sri Prem Sagar Pal, Sri Surendra Pal Singh, Sri Abhai Kumar Srivastava, Sri Pradeep Kumar Yadav, Sri Alok Dubey, Sri Surendra Kumar Jaiwal, Sri Vinod Kumar Vishwakarma, Sri Deepak Kumar Srivastava, Sri Asish Kumar Srivastava are close relatives of employees working in the judgeship. In the counter affidavit, the relationships of these persons with the employees working in the judgeship except for Smt. Meenu Srivastav, Sri Awadhesh Kumar Pal and Abhai Kumar Srivastava and Sri Alok Dubey, was denied.
42. The selection was also challenged on the ground that out of total 5800 (approximately) candidates had participated in the selection, out of whom no outsider candidate was selected and most of the selected candidates are family members or relatives of the regular employees/officers of the judgeship. The irregularities were made at a large scale in preparing select list, completely ignoring the merits of the candidates.
43. In paragraph 28 of the writ petition, it was stated that in case the answer books of petitioners and that of the selected candidates are compared, the favouritism and irregularities committed in the impugned selection can be brought on record; a bare perusal of the answer books of the selected candidates itself will demonstrate that their answer books have been recently changed and written again, just before declaration of the impugned select list.
44. On these allegations learned Single Judge adopted a curious procedure on examining the answer books of the selected candidates, all by himself after summoning them, and thereafter asking the District Judge to appear in person in the Court. The order sheet of the case, reproduced in the impugned judgement shows that initially the District Judge as well as the Chairman of the Selection Committee, who had advertised and held the examination were called and appeared. When it was disclosed by them that they were transferred before the evaluation work started, the District Judge, who had got the answer books evaluated and had declared the result was summoned. Sri Sudhir Kumar Srivastava, the then District Judge appeared on 10.8.2006, 18.8.2006 and 5.9.2006. The order sheet testifies that he was made to appear in the Court, as an accused in the proceedings, before the lawyers, petitioners and respondents. Inspite of the affidavits filed by him, he was asked to explain to the Court, the manner in which the answer sheets were examined, and was questioned to test his knowledge of the rules of selections.
45. We are unable to appreciate as to how the learned Single Judge could summon the District Judge, to the bar of the Court, and then proceeded to examine answer sheets of the candidates, who had appeared for the stenographers test and the answer sheets of the candidates who had appeared in test for selection on the posts of clerks. Learned Single Judge did not take the help of any counsel appearing for the High Court, the District Judge or any officer of the Court, in examining the answer sheets. It was not ordinarily possible to have examined so many answer books, to arrive at a conclusion in respect of few candidates and then to cancel the entire result on the ground that the result of stenographer did not show that their performance in shorthand and typing was not actually examined, or that some of the candidates appearing for clerical examination has answered common passages in writing letters and precie of the given passage with same mistakes.
46. We find substance in the contention of Sri Ajay Bhanot, learned counsel appearing for the appellants that whenever examinations are challenged on the ground of fairness, an independent agency, which has the expertise, and time to look into answer sheet should be appointed. The Court should not assume the role of the examiner and Judge to ascertain the conduct of the District Judge, and to find out the mistakes in answer sheets for cancelling a public examination held on such a large scale. The High Court in exercise of its powers under Article 226 of the Constitution of India adjudicates the dispute, reviews the administrative decision and in extraordinary circumstances may summon the records and look into it on a complaint of irregularities. The Court may also appoint committees, and scrutinize their reports to confirm the irregularities after giving opportunity to the persons to be affected by its observations and results. The assumption of the role of a Committee to look into records should not be ordinarily resorted to, unless the complaint is specific, and can be reviewed by production of concerned records, without undertaking the role of evaluator.
47. In the case of examination of stenographers, the Court found that the experience certificate as required under the rules and advertisement did not verify that the candidates have the requisite speed in shorthand and typing. A finding has been recorded that none of the candidates along with their application forms had enclosed, any certificate, which could depict that they had the speed of 100 words per minute in Hindi shorthand and 35 words per minute in Hindi typing, nor the records established that they had achieved the minimum speed of 100 words minute in Hindi shorthand and 35 words per minute in Hindi typing test in pursuance to the advertisement in question.
48. The finding has been challenged by Sri Rahul Sahai, learned counsel appearing for the appellant. He submits that certificates were annexed with their applications, and that not a single application was rejected on the ground that certificate did not verify the speed of shorthand and typing.
49. We further find that learned Single Judge questioned the competence of Sri M.A. Ansari, Manager of Jai Bharat Typing & Shorthand Institute, Gyanpur, Bhadohi, to examine the answer books. It was noticed that he had not examined the mistakes of full stop, comma, paragraphing, spelling etc., and could not satisfy the Court, the method with which he had calculated the speed. He could not produce any rough sheet to establish the mistakes noticed in the shorthand and typing test, and the method of calculation of speed. We are of the opinion that the learned Single Judge grossly erred in firstly calling Sri M.A. Ansari in the Court to explain the method of evaluation, and to point out the manner in which he had calculated speed, without the aid of any expert in such evaluation.
50. A Judge is not supposed to be an expert in examining the shorthand, which is a language understood mostly by persons who have learned the art of stenography, and to comment upon the manner in which speed was counted. The rules do not prescribe any agency. It thus leaves the choice of the person or the agency, to the District Judge as appointing authority. If learned Single Judge has any doubt, he could have appointed any expert, or any State Agency to examine the correctness of the result of examination of shorthand and typing prepared with the assistance of Sri M.A. Ansari.
51. About 5,000 candidates appeared in the clerks examination, out of which learned Single Judge concentrated examination of answer sheets only in respect of few persons who were selected. He picked up only question Nos. 5 and 6, which the candidates were required to write a letter, and to write a precie of a passage, and commented upon common mistakes. Though we do not agree with the argument of Sri Ajay Bhanot that common mistakes are possible, if there is a common teacher or common book, with the help of which the candidates have prepared for examination, these mistakes in respect of few candidates alone could not be a ground for cancelling entire examination. As held by the Supreme Court in Inder Preet Singh Kahlon (Supra) and Basudeo Tiwari (Supra), unless it is found that the tainted candidates cannot be segregated, the entire examination should not be cancelled.
52. We find that learned Single Judge erred in law in making distinction in cancellation of examination of any Board of Education on the ground of mass coying in which tainted and untainted cannot be segregated, with the case of termination of services of the selected candidates appointed on the basis of examination in public service on the complaint of irregularities in compliance with rules of examination and mass copying. In Inder Preet Singh Kahlon (Supra) the Supreme Court has clearly laid down the test that the examination for appointment in public service challenged on the ground of corruption, cannot be set aside on suspicion alone. In such cases, examination of few copies, and the mistakes pointed out therein are not sufficient to cancel the entire examination.
53. We find substance in the submission of Sri Ajay Bhanot that none of the selected candidates impleaded as respondents, or their counsels were given any opportunity to look into the answer books in respect of the mistakes, and to meet the allegations of mass copying, or copying from the each one's answer book. The observations regarding overwriting of the marks and of increase of marks where questions were not properly answered also suffer from lack of expertise in examining the answer book.
54. We also find merit in the argument of Sri Ajay Bhanot that wherever such an extraordinary method is adopted, adequate opportunity should be given to the candidates to look into the mistakes, which have been pointed out. The cancellation of their result or cancellation of entire examination would in such case be violative of principle of natural justice, which is the and bedrock of dispensing justice. The Court take into account the complaints made against examination in respect of successful candidates, who did not have opportunity to contest, and thereafter rely upon his own observations without giving opportunity to the successful candidates to meet such observations.
55. In the present case, even if the learned Single Judge found that some of the candidates did not deserve marks, for which learned Single observed that answers make no sense, the result of entire examination could not have been cancelled. He did not examine the possibility to segregate the tainted and untainted candidates. Even if the selected candidates had adopted unfair means, or did not deserve to be selected, the entire result of examination, in which thousands of candidates appeared, and who did not adopt any unfair means practice, and many of them may have done better in the examination, could not be cancelled. Since there is no such findings, that the entire selections were unfair or could not be protected for any inherent defect in the procedure, the cancellation of entire selections will result into injustice to them.
56. Ordinarily, High Court should not take upon itself the role of examiner, and cancel the result selections in which 300 candidates in stenographers and 5,000 candidates in clerks selections appeared, on observing that some of the selected candidates were not eligible or did not deserve the marks given to them.
57. On the above discussion, we find that the learned Single Judge exceeded in exercise of the jurisdiction vested in him under Article 226 of the Constitution of India in cancelling the result of the entire selections, and directing fresh selections to be held. It was open to him, to appoint a Committee to look into the records, and to submit its finding to be reviewed for deciding the case, after giving an opportunity to the affected candidates to submit their objections. In the present case there was no pleading that any such exceptional circumstances existed for the learned Single Judge to take up his pen and examine all the answer books of the selected stenographers and clerks, and to assume the role of an expert examiner, prosecutor and judge - all in one. The rights of the selected candidates to be heard, on the defects pointed out in the impugned judgement have been violated.
58. In the result, the Special Appeals are allowed. The impugned judgment dated 16.7.2007 of the learned Single Judge is set aside, and the matter is remanded to the learned Single Judge to proceed with the matter in accordance with law and the observations made in the judgment. We are not issuing any directions for restoration of the appointment of the appellants as in the meantime fresh examinations have been held and the selected candidates may have been given appointments. We expunge the observations made against the District Judge and set aside the order imposing costs on him.
Dt. 25.11.2011 nethra