HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SERVICE BENCH No. - 1459 of 2011 Petitioner :- Vishwa Nath Lal Respondent :- State Of U.P.Through Prin. Secy. Niyojan Govt. Of U.P.Lko. Petitioner Counsel :- Vidhu Bhushan Kalia Respondent Counsel :- C.S.C. Hon'ble Pradeep Kant,J.
Hon'ble Surendra Vikram Singh Rathore,J.
By means of instant writ petition, the petitioner challenges the order of punishment dated 26.05.2011(Annexure No.1) passed by the respondent no.1 by means of which his gratuity has been withheld and a direction for deducting 20% from his pension has been issued.
Brief facts giving rise to the controversy are that the petitioner was working as Deputy Director in the department of Niyojan, Arth Evam Sankhya, Lucknow. An advertisement dated 28.07.2006 was issued by the State Government to fill up the vacancies of Peons and for that purpose a selection committee was constituted comprising of four members namely ; (i) Vishwa Nath Lal, petitioner (as Chairman and also a Scheduled Castes representative), (ii) A.K.Pandey, Deputy Director (Economics & Statistics), Gorakhpur Division, Gorakhpur, (iii) L.K.Singh (Economics & Statistics Officer in office of Deputy Director (Economics & Statistic), Lucknow Division,Lucknow and (iv) Akhileshwar Misra, District Khadi & Gramodyog Officer (nominee of District Magistrate,Lucknow). This selection committee was to make selection of Class IV employees namely; peon and sweeper in pursuance of advertisement dated 28.07.2006. The selection was to be made as per Samuh Gha Karmchari Sewa Niyamawali, 1995 as amended by Sewa Niyamawali (Third Amendment) Rules, 1999.The result of the selection was declared on 08.11.2006 and the appointment letters were dispatched on 09.11.2006. Two non-selected candidates being aggrieved by the result of selection, filed Writ Petition No.9988(S/S) of 2006 challenging the entire select list dated 09.11.2006 at Lucknow Bench of this Court. The petitioner made certain allegations against the selection which were defended by the State Government by filing a detailed counter affidavit.
The learned Single Judge however, after looking into the record of the selection passed an order on 18.12.2006 directing the Officer on Special Duty of this Court to scrutinize the entire original record of the selected candidates and submit his report. After scrutinizing the entire record, the Officer on Special Duty submitted his report on 27.01.2007 and this Court vide another order dated 09.02.2007 again directed the Officer on Special Duty to scrutinize the record of non-selected candidates also and submit an enquiry report to which a supplementary report was submitted by the Officer on Special Duty on 15.03.2007.The State Government again contested the matter and though it did not dispute that certain discrepancies in the tabulation chart had occurred but assured that the result of the selected candidates was not effected but for one or two candidates.
Learned Single Judge on the basis of the report of the Officer on Special Duty set aside the selection vide his order dated 02.07.2007 and on 26.03.2008 a charge sheet was issued to the petitioner levelling two charges and subsequently, a charge sheet was issued on 29.07.2009 levelling one additional charge. The Enquiry Officer has found charge no.1 not proved but charge no.2 was found proved and he gave a finding in respect of charge no.3 (additional charge) to the effect that it cannot be attributed to the Chairman of the Selection Committee i.e. the petitioner as other members of the Selection Committee are also equally responsible for the same.
Though, the first charge sheet was issued on 26.03.2008 containing two charges and a supplementary charge sheet was issued on 29.07.2009 containing one charge, but in the meantime, before the enquiry could be completed, against the judgment and order dated 2.7.2007 passed by the learned Single Judge, Special Appeal No.666 of 2007 was preferred by the selectees which was allowed by the Division Bench of this Court vide order dated 09.11.2009.
The State Government obviously and apparently did not take into account the finding recorded in the aforesaid special appeal, while concluding the disciplinary enquiry and awarding the punishment to the petitioner.
The Division Bench in special appeal came to the conclusion that the charge of malafide and political inference in the matter of selection was not found proved by the learned Single Judge nor any defect in the selection committee was found by him and, therefore, there was no occasion for the learned Single Judge ordering for scrutiny of record, the O.S.D. of this Court and hence, allowed the special appeal and set aside the order passed by learned Single Judge.
While allowing the special appeal, the Division Bench also took into consideration the case of non-selectees, who could have been selected for the irregularities said to have been committed in the matter of tabulation and also that of one Uma Shanker who was illegally and wrongly selected. The relevant observation made by the Division Bench in this regard is as follows :-
? The aforesaid chart of non-selected candidates shows that but for the candidature of Ram Shrati Singh, Sharda Devi, Hazari Prasad and Sandeep Kumar Gupta, the result of no other person was likely to be affected, if the irregularities were cured.
We take notice of the fact that though all the selected candidates were impleaded as party in the writ petition during the course of hearing but some of them even could not be served and the matter was decided.
We also take notice of the fact that by making this enquiry, with respect to non-selected candidates, the names of such persons have come before the Court in respect of whom in the matter of calculation of marks and in preparing the tabulation chart, some irregularities or discrepancies were pointed out, but these candidates had not chosen to file the writ petition or to challenge their non-selection. There were only two candidates namely, Manjul Kumar and Shailendra Kumar, who were unsuccessful and who had filed the writ petition.
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We thus, conclude that the learned Single Judge having come to the conclusion that the constitution of the selection committee was valid and that there was no violation of any rule in holding the selection, the mention of addresses of the residences of the Ministers and Chief Minister as their address by the candidates also did not affect the selection in any way and that because of some discrepancy being shown in the calculation of marks and putting them in the tabulation chart in respect of one or two selected candidates, on the basis of the report of the judicial officer, the selection could not have been quashed, particularly when no such enquiry could have been directed to be made by the judicial officer.?
A perusal of the charge sheet reveals that the main charge which is Charge no.2 was totally based upon the judgment of the learned Single Judge which judgment was not available at the time of passing of the impugned order . Once the selection has been upheld by the High Court considering the case of non-selectees also and the special leave to appeal filed by them has been dismissed by the Supreme Court, as informed by the parties counsel, there was no occasion for the State Government to proceed with the enquiry on a charge which was based on the judgment of the learned Single Judge. The very basis of the charge having been wiped of, there was no authority to proceed in the enquiry and award any punishment.
For the reasons aforesaid, we do not find any justification of the State Government to pass the impugned order of punishment which is liable to be set aside.
We accordingly, quash the impugned order dated 26.05.2011 (Annexure no.1) passed by the respondent no.1 . We further direct that the amount withheld under the aforesaid order shall be paid forthwith to the petitioner.
Accordingly, the writ petition is allowed.
Order Date :- 20.10.2011 RK/*