Dileep Kumar Chaudhary ... vs State Of U.P.Through ...
2014 Latest Caselaw 9471 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 27
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 683 of 2014
 

 
Appellant :- Dileep Kumar Chaudhary 2517(S/S)2014,3807(S/S)2012,2357(S/S)
 
Respondent :- State Of U.P.Through Prin.Secy.Medical Health Service & Ors.
 
Counsel for Appellant :- Asok Pande,Onkar Pandey
 
Counsel for Respondent :- C.S.C.,Sandeep Dixit,V.K.Dubey
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Arvind Kumar Tripathi (II),J.

This appeal has been filed only by one Dileep Kumar Chaudhary, one of the three petitioners in Writ Petition No. 2357 of 2012. The said writ petition has been decided alongwith Writ Petition No. 3807 of 2012, Chanchal Mishra and another Vs. State of U.P.

The third petition is Writ Petition No. 2517 of 2014 Vinay Kant Yadav and others Vs. State of U.P. And another.

When the appeal was heard on the earlier occasion, the following order was passed on 17.11.2014:-

"Heard learned counsel for the appellant, learned Standing Counsel for the respondent no.1 and 2, Sri Sandeep Dixit for the respondents no.3 to 5 and Sri V.K. Dubey for the respondents no.6 and 7.

After the matter was heard at length, Sri Sandeep Dixit, learned counsel for the respondents no.3 to 5, submits that if there is no adjudication on the order passed by the State Government dated 16.7.2012 then the same may be considered and finally disposed of by this Court in this appeal as this appeal is a continuation of the writ petition. He, therefore, submits that it will serve no purpose if the matter is heard without hearing on the issue of 16.7.2012. He further submits that the learned Single Judge can be called upon to decide the same alternatively and the matter can be remitted back for the said purpose.

Learned Standing Counsel represents the State Government and it is the order of the State Government which is under challenge, he prays that he may be permitted to seek instructions on the position so emerging in respect of the procedure to be adopted by this Court for the said purpose.

Put up tomorrow as fresh along with records of all the three writ petitions."

It may be noted that since there was a slight delay in the filing of the appeal, the appeal was entertained after condoning the delay by a separate order on the delay condonation application on the same date.

The matter was again heard on 19.11.2014 on which date the learned Additional Advocate General sought time, and the following order was passed:-

"After the matter was heard, learned Additional Advocate General, Ms. Bulbul Godiyal has made a request that the matter be adjourned for Friday to enable her to obtain specific instructions in relation to the controversy arising out of the cancellation proceedings dated 16th July, 2012.

Put up on Friday."

In compliance thereof an application alongwith an affidavit of Dr. Asha Pandey captioned as a short counter affidavit on behalf of the State has been filed stating facts with regard to the material in support of the proceedings undertaken for cancellation of the selection which is subject matter of the present dispute.

The appeal was heard alongwith the records of the writ petitions that have been disposed of giving rise to a common judgment presently under challenge.

We have heard Sri Ashok Pandey, learned counsel for the appellant, the learned Additional Advocate General for the respondent nos. 1 and 2, Sri Sandeep Dixit Advocate for the respondent no. 3. The respondent nos. 4 and 5 are co-petitioners alongwith the appellant in Writ Petition No. 2517 of 2012. We have heard Sri V.K. Dubey for the respondent nos. 6 and 7 who are the petitioners in Writ Petition No. 3807 of 2012.

At the very outset it may be observed that the respondent nos. 6 and 7 have not filed any appeal against the judgment of the learned Single Judge even though they were petitioners before the learned Single Judge in Writ Petition No. 3807 of 2012. The same is the position of respondents no.4 and 5 as well.

Common questions of law and fact are involved and learned counsel for the parties agree that the matter can be disposed of finally at this stage itself. It is for this reason that the matter proceeded with as recorded in the order dated 17.11.2014.

Sri Ashok Pandey, firstly contends that the learned Single Judge proceeded to decide the writ petition filed by the appellant, namely Writ Petition No. 2357 of 2012 without hearing Sri Pandey who was already engaged as a counsel in the writ petition right from the stage of the challenge raised to the order dated 16.7.2012. Thus the first ground urged by Sri Pandey is that the judgment was ex-parte for which a recall application has been filed before the learned Single Judge and that remains pending, but on account of the urgency that has arisen on the facts of the present case that the present appeal has been filed as the respondents are now proceeding to hold fresh interviews in response to the fresh advertisement that would directly affect the earlier selections under which the appellant is claiming his rights.

Sri Pandey has then proceeded on the merits of the claim, and in order to understand the controversy and the issue raised, it would be necessary to narrate the facts in short to appreciate the arguments advanced. Two advertisements were issued on 10.9.2010 and 23.2.2011 in relation to selections and appointment on the post of Lab Technicians in the Health Department of the State which are Group C Posts, the selections whereof, are to be held in terms of the Uttar Pradesh Procedure for Direct Recruitment for Group C Post (outside the purview of the U.P. Public Service Commission) Rules, 2002 as amended in 2003. A copy of the rules is available on record of Writ Petition No. 2357 of 2012.

The aforesaid selections were to be held in respect of the 208 posts that were advertised. The examinations were held and the interview proceeded between 19.12.2011 to 23.12.2011 in which the appellant alongwith the other petitioners in the two writ petitions had applied and appeared.

The Director General, Medical and Health on 5th of January, 2012 requested the Principal Secretary, Government of Uttar Pradesh, informing him about the process of selections held and completed, but on account of the promulgation of the model code of conduct of elections the appointments could not be formalized. Consequently, a request was made to the Government for allowing the department to proceed to declare the results of the selections and make formal appointments.

The respondents in their short counter affidavit have alleged that a complaint had been made against the said Director levelling allegations of corruption in the selection process on 14.7.2010, which is a date even prior to the advertisement, and then on 1.6.2011. Two other complaints were received allegedly on 29.12.2011 and 2.1.2012.

It is also on record that vide a general order dated 16.3.2012 a ban was imposed under orders of the then Chief Minister restraining all appointments in future in all departments. This ban dated 16th March, 2012 became subject matter of challenge in Writ Petition No. 2357 of 2012 filed by the appellant praying for quashing of the same and for a mandamus to declare the results and proceed with the appointments on the basis of the selections held as noted above.

The respondents allege that on 19th April, 2012, a Member of the U.P. Legislative Council, Smt. Prabhawati Pal, raised a question in the House about the allegations of corruption and irregularities in the disputed selections. Another complaint of one Sri B.K. Singh Advocate is stated to have been received on 19.6.2012. The Special Secretary of the Medical and Health Department, vide his letter dated 1st of June 2012, called upon the Special Secretary, Medical and Health, Government of Uttar Pradesh to inquire into the complaint and submit a report.

According to the short counter affidavit, the Inquiry Officer changed and no inquiry report appears to have been submitted. This situation continues even till today after two other Inquiry Officers have been altered but not inquiry has either been held or concluded. Thus the short counter affidavit clearly indicates that even though complaints were allegedly received, and an inquiry directed, yet neither any inquiry has been held nor any material on such inquiry has been filed to indicate any adverse material with regard to the selections that were held between 19.12.2011 to 23.12.2011 in response to the advertisements indicated above for the 208 posts.

The appellant in this background contested the matter in the writ petition which appears to have been filed on 14th May, 2012.

In between the respondent Chanchal Mishra and three others filed writ petition no. 3141 of 2012 on 6th June, 2012 stating therein that the Director General, Medical and Health vide his letter dated 11th May, 2012 had made a request to the Principal Secretary referring to his earlier letter dated 22.3.2012 and 13.4.2012 and having failed to get any response, made three proposals, namely, to proceed to declare the results and appoint the selected candidates against the 208 posts; to allow the balance of 242 posts to be advertised and proceed with the same or in the alternative to cancel the advertisement and selections against the 208 posts and combine both the vacancies and issue a fresh advertisement for 450 posts.

This writ petition was disposed of on 6th June, 2012 with a direction to the State Government to take appropriate decision in accordance with law on the said letter dated 11.5.2012. The order passed therein is extracted hereinunder:-

"Hon'ble Ritu Raj Awasthi,J.

Notice on behalf of opposite parties no. 1 and 2 has been accepted by the learned Chief Standing Counsel.

The writ petition has been filed seeking direction for declaration of result of the selection held for the post of Lab Technician in pursuance of the advertisements dated 10.9.2010 and 23.2.2011 by the Directorate of Medical & Health Services, Government of U.P. The petitioners have also challenged the Government Order dated 16.3.2012 by which the ban has been imposed on all appointments in the Government Departments.

Learned counsel for petitioners submits that in pursuance of the advertisements aforesaid, selection was held for the post of Lab Technician and all the formalities were completed, however, before the result could be declared due to general assembly elections Model Code of Conduct was enforced and therefore, the result could not be declared.

It is further submitted that after formation of new government, vide Government Order dated 16.3.2012, all appointments in the government departments (outside the purview of Public Service Commission) have been banned, as such, the result of the selection held for the post of Lab Technician has not been declared till date.

Learned counsel for petitioners has drawn attention of this Court towards the letter dated 11.5.2012 by which the Director General, Medical & Health Services, Uttar Pradesh has requested opposite party no. 1, Principal Secretary, Medical & Health Services, Government of U.P. to grant permission to declare result of the selection held for 208 posts of Lab Technician and make appointments.

It is further submitted that the State Government has not yet taken any decision on the aforesaid letter of opposite party no. 1.

This Court is of the view that the State Government has to take decision on the request made in this regard by letter dated 11.5.2012 of the opposite party no. 1.

In this view of the matter, with the consent of parties counsel, writ petition is finally disposed of at the admission stage with direction to opposite party no. 1 to take appropriate decision in accordance with law on the letter dated 11.5.2012 of the opposite party no. 2, say within a period of six weeks' from the date a certified copy of this order is produced before him."

The State Government then passed the order dated 16th July, 2012 cancelling the selections on the ground that since the selection proceedings were not fair and transparent, and since additional vacancies were available in respect of Lab Technicians and X-Ray Technicians, therefore, in order to attract more number of candidates, fresh selections should be held and an age relaxation of five years was given under the said order dated 16th July, 2012.

The appellant Dileep Kumar Chaudhary at this stage filed an amendment application praying for quashing of the order dated 16th July, 2012 and the said amendment application was allowed on 18th February, 2013.

The respondent Chanchal Mishra and Manoj Kumar also filed their writ petition no. 3807 of 2012 praying for quashing of the order dated 16th July, 2012 and for issuing directions to conclude the selection process and issue letters of appointment.

On 14th August, 2012, the following interim order was passed in Writ Petition No. 3807 of 2012:-

"Hon'ble Ritu Raj Awasthi,J.

Learned Standing Counsel, on the basis of record, submits that there was procedural irregularity in the selection held for the post of Laboratory Technician and X-Ray Technician as no Selection Committee was constituted.

It is also submitted that for the irregularity committed in the said selection an enquiry has been instituted against the Director General, Medical & Health Services.

Let counter affidavit be filed by the opposite parties within four weeks. In case counter affidavit is filed, the petitioners may file rejoinder affidavit within two weeks thereafter.

List thereafter.

Till the next date of listing no fresh selection shall be held for the post of Laboratory Technician and X-Ray Technician."

From the ordersheet of the said writ petition dated 6.8.2012, it appears that a query was raised by the court in relation to any inquiry being held in respect of the cancellation of the selections.

A counter affidavit appears to have been filed on 19th July, 2013 in the said writ petition and the learned Additional Advocate General has invited the attention of the court to the said counter affidavit to contend that several irregularities were entailed and indicated therein which demonstrates the facilitation of the selections as a result whereof a decision was taken to cancel the selections and initiate a fresh selection process. The issue of ban dated 16th March, 2012 and the cancellation dated 16th July, 2012 was sought to be justified. However, the said counter affidavit does not bring on record any material to substantiate this stand and it is for this reason that we had called upon the learned Additional Advocate General to file any material before us so as to justify such action.

As noted above only a short counter affidavit has been filed by Dr. Asha Pandey with no material appended thereto except for the fact that an administrative inquiry was instituted but due to change of Inquiry Officers no report is forthcoming nor any inquiry has been held.

The stand of the respondent-State on the legal position that was taken in the said writ petition was that mere selection does not give any right of appointment and therefore the petitioners cannot be granted any relief.

Other writ petitions were also filed in relation to the said selections in a bunch alongwith writ petition no. 3807 of 2012 that came to be heard by a learned Single Judge who noted the interim order dated 14.8.2012 quoted hereinabove and also another interim order dated 17.9.2012 that was passed in writ petition no. 4716 of 2012. The occasion to file the said writ petition had arisen when appointments were sought to be made on contract basis at the district level on the said posts.

A learned Single Judge thereafter proceeded to pass an order again at the interim stage in the said writ petition where writ petition no. 2357 of 2012 had not been tagged. The said order dated 17.12.2012 is quoted herein under:-

Hon'ble Ritu Raj Awasthi, J.

Heard S/Sri Sandeep Dixit, O.P. Srivastava, R.C.Tewari and Amrendra Nath Tripathi, learned counsel for the petitioners as well as Mr. Abhinav N. Trivedi, learned Additional Chief Standing Counsel, Mr. Saurabh Lavania, Mr. Ghaus Beg and Mr. Sandeep Sharma, learned counsel for the respondents and perused the record.

This is a bunch of writ petitions relating to regular appointment on the post of X-Ray Technicians and Laboratory Technicians on the regular sanctioned posts created by the State Government as well as appointment/renewal of the petitioners working as Laboratory Technicians and X-Ray Technicians under the N.R.H.M. scheme.

The Writ Petition No. 3807 (SS) of 2012 was filed challenging the order dated 16.7.2012 whereby the earlier selection initiated in the year 2010 was cancelled and a decision was taken to hold a fresh selection to fill up 450 regular posts of Laboratory Technicians and 287 posts of X-Ray Technicians. The Court vide order dated 14.8.2012 had granted interim order to the effect that till the next date of listing, no fresh selection shall be held for the post of Laboratory Technician and X-Ray Technician.

Mr. Abhinav N. Trivedi, learned Additional Chief Standing Counsel, on the basis of instructions, submits that in the earlier selection interview were not completed with respect to X-Ray Technicians and the process for selection was not finalized. There were serious complaints against the then Director General, Medical & Health Services regarding irregularities committed by him and an enquiry was instituted against him. The State Government as such vide order dated 16.7.2012 had taken a decision to cancel the earlier selection and hold fresh selection. It is further submitted that the petitioners have no right to claim appointment on the posts in question as they were not selected at any point of time.

In Writ Petition No. 4716 (S/S) of 2012, the petitioners have challenged the advertisement issued by the opposite parties to fill up 185 posts of X-Ray Technicians and 358 posts of Laboratory Technicians at the district level for appointment on contract basis under the N.R.H.M. scheme. This Court by interim order dated 17.9.2012 had observed that regular sanctioned post of Laboratory Technicians and X-Ray Technicians can not be filled up on the basis of impugned order dated 24.7.2012. However, it was provided that opposite parties shall make regular appointments on the aforesaid posts under the relevant service rules. The relevant observation of the Court on reproduction reads as under:

"Prima facie, it appears that regular sanctioned 185 posts of X-Ray Technicians and 358 posts of Laboratory Technicians are going to be filled up on contract basis at district level under the NRHM scheme. The service conditions of regular sanctioned posts of X-Ray Technicians and Laboratory Technicians are governed under the provisions of U.P. X-Ray Technicians Service Rules, 1986 and U.P. Laboratory Technician (Medical/Health & Family Welfare Department) Service Rules, 1994 and respectively. These regular posts can not be filled up at District level on contract basis under the NRHM scheme which is altogether different scheme financed by the Central Government.

Let counter affidavit be filed by the opposite parties within four weeks. In case counter affidavit is filed, the petitioners may file rejoinder affidavit within two weeks thereafter.

List thereafter.

Till the next date of listing, as an interim measure, it is hereby provided that 185 regular sanctioned posts of X-Ray Technicians and 358 regular sanctioned posts of Laboratory Technicians shall not be filled up on the basis of impugned order dated 24.7.2012. However, the opposite parties may make appointment on the aforesaid posts under the relevant service rules."

The Writ Petition Nos. 5387 (S/S) of 2012, 4770 (S/S) of 2012 and 7222 (S/S) of 2012 relate to appointment/renewal on the posts of X-Ray and Laboratory Technicians under the N.R.H.M. scheme. These writ petitions have been filed on the ground that under the contract of service there is provision for renewal of service. The scheme under which they were engaged is still continuing. The work and post have been made available as such the petitioners are entitled to be given renewal on the posts on which they were working.

Mr. Saurabh Lavania, learned counsel appearing for Mission Director, N.R.H.M. and State Health Society, which has been impleaded as opposite party in most of the cases, submitted that 185 posts of X-Ray Technicians and 358 posts of Laboratory Technicians were included in the N.R.H.M. programme and for that Programme Implementation Plan (PIP) in this regard was sanctioned by the Central Government and required funds were provided for that purpose. It is further submitted that the persons appointed under the N.R.H.M. scheme are required to perform the work which is meant for regular posts.

Mr. Abhinav N. Trivedi, learned Additional Chief Standing Counsel, on the basis of instructions also submits that efforts have been made to fill up regular posts under the relevant rules. He further submits that due to interim order dated 14.8.2012 passed in Writ Petition No. 3807 (S/S) of 2012, no regular appointment could be made and in case the Court permits regular appointments on the sanctioned posts would be made after completing due process under the existing relevant rules.

Mr. O.P. Srivastava, learned counsel for the petitioners in Writ Petition No. 3807 (S/S) of 2012, submits that opposite parties do not have unfettered power to cancel the entire selection held earlier and the petitioners have a right to be appointed on the post in question on the basis of earlier selection.

Be that as it may, this Court is of the view that looking into the entire facts and circumstances of these writ petitions, it would be expedient in the interest of justice that the opposite parties are permitted to fill up the regular existing sanctioned posts of Laboratory Technicians as well as X-Ray Technicians under the relevant rules at the earliest so that the work in the Government hospitals may not suffer.

As such the State Government through the Principal Secretary, Medical & Health Services, Government of U.P. as well as the Director General of Medical & Health Services, are hereby directed to initiate and complete process of selection for regular appointment on the aforesaid posts and fill up these posts at the earliest, may be within a period of three months from the date a certified copy of this order is produced before them.

So far as the petitioners who were working under the N.R.H.M. scheme are concerned, in case the posts of Laboratory Technicians and X-Ray Technicians on which they were working are made available for the current year and the work of the petitioners has been found satisfactory, the petitioners shall be considered for renewal on the posts on which they were working and appropriate orders in this regard shall be passed by the authority concerned within a period of one month from the date a certified copy of this order is produced before it. The advertisement, if any, issued with regard to the posts on which the petitioners under the N.R.H.M. were working shall be acted upon only after consideration of the renewal of appointment of the petitioners. The interim order dated 14.8.2012 passed in Writ Petition No. 3807 (S/S) of 2012 and the interim order dated 17.9.2012 passed in Writ Petition No. 4716 (S/S) of 2012 are modified to that extent.

It is, however, made clear that the selection/appointment made in pursuance of the above directions shall be subject to further orders of the Court.

List these cases in the month of March, 2013."

Consequently, the two interim orders dated 14.8.2012 passed in Writ Petition No. 3807 of 2012 and the interim order dated 17.9.2012 passed in Writ Petition No. 4716 were modified with a direction to complete the process of selection within a period of three months.

The aforesaid order directly affected the appellant who filed Special Appeal No. 53 of 2014 challenging the said interim order dated 17.12.2012. The special appellate bench disposed of the said appeal by the following order:-

"Hon'ble Uma Nath Singh,J.

Hon'ble Zaki Ullah Khan,J.

Order (Oral)

We have heard learned counsel for parties and perused the pleadings of special appeal.

Learned counsel for appellant states that the writ petition filed by appellant is still pending. However, as a result of opening of selection process under the impugned order his claim might be defeated. It is also a submission of learned counsel that learned Single Judge instead of deciding the matter finally, has made the selection subject to outcome of the writ petition which may lead to further complication because there is no allegation of any mala fide in the earlier selection process. Simply because there was change of establishment, the earlier selection would not become invalid. That being so, it would be open for the petitioner to rake up this point during the course of argument in pending writ petition or alternatively, he can file review with application for permission in the connected matter before learned Single Judge.

With the aforesaid observations, the special appeal is disposed of.

The entire exercise shall be done within a period of one week from the date of issuance of certified copy. During the said period, there shall be stay of operation of the impugned order."

Another development had taken place after the order dated 17.12.2012 passed by the learned Single Judge quoted hereinabove, namely a fresh advertisement dated 15.10.2013 had been issued for all the 450 posts including the 208 posts of the previous selections.

Learned counsel for the respondent have urged that the appellant alongwith other writ petitioners have applied against the fresh advertisement and therefore this should also be taken a ground to non-suit the appellant and other similarly situate candidates, moreso when the other petitioners of the connected writ petitions have not filed any appeal.

In the wake of the aforesaid developments and the direction given by the learned Single Judge dated 17.12.2012 as well as the order of the division bench dated 30.1.2014, a contempt application had been filed alleging non compliance of the direction of the High Court for holding of fresh selections, and then the order staying the operation of the order of the learned Single Judge on 30.1.2014.

In this background faced with the order of the division bench dated 30.1.2014 the Director issued an order on 3rd February, 2014 staying the selection process and consequently, the contempt application was dismissed as infructuous on 6.2.2014.

Vinay Kant Yadav and two others filed writ petition no. 2517 of 2014 and the prayer made in this petition was to quash the stay of the selection process of the Director vide order dated 3.2.2014, and to complete the selection process of the undisputed 242 posts that had been subsequently advertised on 15.10.2013 on the ground that these posts had no concern with the dispute of 208 posts.

Sri Sandeep Dixit who appears for Vinay Kant Yadav and others has urged that whatever be the fate of 208 posts, so far as these additional 242 posts are concerned, the Director had no authority to stay the selection process under the threat of contempt in respect of these posts, and therefore, the prayer made in writ petition no. 2517 of 2014 deserved to be allowed.

All the three writ petitions, namely Writ Petition No. 2357 of 2012 filed by Dileep Kumar Chaudhary, Writ Petition No. 3807 of 2012 filed by the respondent Chanchal Mishra and another in respect of earlier selections and Writ Petition no. 2517 filed by Vinay Kant Yadav to complete the subsequent selections, came to be heard together by the learned Single Judge, who vide impugned judgment dated 1.8.2014, came to the conclusion that the cancellation of the selection process in respect of 208 posts is not invalid, and there being no hurdle for the respondents to proceed with the selection under the fresh advertisement dated 15.10.2013, the order dated 3.2.2014 passed by the Director General staying the selection process was quashed with a direction to the State and its respondent authorities to proceed and complete the fresh selection process in respect of all 450 posts.

Pursuant to the aforesaid judgment of the learned Single Judge, the learned Additional Advocate General informs that now the interviews have been undertaken in order to complete the selection process by 16th December, 2014. The present appeal has therefore been preferred only by Dileep Kumar Chaudhary assailing the judgment of the learned Single Judge and Sri Ashok Pandey has advanced his submissions.

The first question that has to be addressed to is the status of the order dated 16th July, 2012 as that would decide the fate of the appellant in the earlier selections that were completed in December, 2011. It is to be noted that it is only Dileep Kumar Chaudhary who now is the surviving contestant and who has filed this appeal challenging the order of the learned Single Judge. A perusal of the judgment impugned would indicate that the learned Single Judge in so far as the order dated 16th July, 2012 is concerned has given two findings. The first is that a selected candidate does not have any right of appointment in view of the decision in the case of Shankarsan Das Vs. Union of India (1991) 3 SCC 47 (Paragraph 7) and the second recital in the order is only to the effect "it is also held that cancellation of selection process prior to appointment is not invalid".

So far as the issue relating to the principle of law is concerned, not only the decision in the case of Shankarsan Das (supra) but even subsequent thereto the Apex Court in several decisions has followed the said ratio indicating that mere selection does not give any right of appointment. The said judgments have been relied upon by the State and are noted hereinunder:-

1. Jai Singh Dalal and others Vs. State of Haryana and another; 1993 Supp (2) SCC Pg. 600 (Paragraph 7).

2. Prafulla Kumar Swain Vs. Prakash Chandra Misra and others; 1993 Supp (3) SCC Pg. 181 (Paragraphs 29 & 30).

3. All India SC & ST Employees' Association and another Vs. A. Arthur Jeen and others; (2001) 6 SCC Pg. 380 (Paragraph 10).

4. State of M.P. and others Vs. Sanjay Kumar Pathak and others; (2008) 1 SCC Pg. 456 (Paragraphs 20 to 24).

But in the instant case what happened was that the State Government did not proceed to make appointments on account of the promulgation of the model code of conduct of elections which is admitted in the letter of the Director dated 5th January, 2012. Inspite of repeated requests the selections having been completed, the final results were not declared nor appointments made as the State Government was sitting over the matter. The plea taken in the counter affidavit was to the effect that certain complaints indicating irregularities were reported, but as would be evident from the affidavits filed, except for bald allegations, that have been denied in the rejoinder filed in the writ petition, no material was placed to substantiate such allegations.

In between a general order of ban was imposed on 16th March, 2012. This ban would not automatically dissolve earlier selections held that were waiting formal appointments nor was there any recital or any order of cancellation of the selections already held. This stalemate was sought to be clarified by the Director who on 11th May, 2012 wrote a letter indicating the option of either declaring the results, or holding selections in respect of the additional posts as well, or in the alternative to cancel all selections and issue a fresh advertisement. It is in this background that the High Court issued a direction on 6.6.2012 in Writ Petition No. 3141 to the State Government to take a decision in respect thereof.

It is a consequence of the aforesaid direction that the State Government without giving any substantial reason proceeded to cancel the selections on 16th July, 2012. The said order which is impugned in the writ petitions vaguely indicates that the selections were not fair and transparent. The same reason has been repeated with a view instances of complaints in the counter affidavit, levelling allegations against the Director and the method of selection. It is settled law that reasons cannot be supplemented to substantiate or fill in the lacunae of an otherwise deficient order. Yet even taking the stand taken by the respondent in their counter affidavit before the learned Single Judge to be of some worth, the respondents did not bring on record any material to substantiate such allegations after they had been denied in the rejoinder. In our opinion, it was the duty of the State to have indicated material to substantiate any irregularity in the selection process or any other material that would have otherwise vitiated the selection process. In the absence of any such material on record, the allegations made in the counter affidavit filed before the learned Single Judge therefore do not stand substantiated at all.

Realizing this difficulty, it appears, the State Government had even set up an inquiry, and this fact of getting an inquiry held to find out material for the purpose of establishing that the selections were not free and fair and there were irregularities, has now been categorically admitted in the counter affidavit filed in this appeal by Dr. Asha Pandey. The said affidavit leaves no room for doubt that except for appointing successive inquiry officers, no further action has been taken nor any material has been unearthed to substantiate the allegations of unfairness or irregularities in the earlier selections of 2011.

To our mind, a knee jerk reaction appears to have resulted in the passing of the order dated 16.7.2012 which did not have any material to support the conclusion that the selections were either unfair or irregular. In the absence of any such material the order dated 16th July, 2012 is rendered arbitrary.

Having said so and having perused the records, the conclusion drawn by the learned Single Judge that the cancellation of the selection prior to appointment is not invalid, is not sustainable on any logical reason. The learned Single Judge has not given any reason for arriving at such a conclusion, and rather to the contrary, the facts as unfolded hereinabove and for the reasons recorded by us it is clear that the order dated 16.7.2012 cannot be sustained. We accordingly quash the order dated 16th July, 2012 as being arbitrary.

The next question is as to whether the selections that were held in December, 2011 should be declared to be rational and fair and bereft of any infirmity. It is here that the State Government has failed to discharge its duty in proceeding to get the inquiry concluded that was desirable in case any complaints had been received. To our mind, it would have been appropriate for the State Government to have got the inquiry concluded and should not have allowed more than two years to have slipped by with alteration of inquiry officers being appointed one after the other with no inquiry proceeding at all.

We therefore direct the Principal Secretary, Medical and Health Services, Government of Uttar Pradesh that the inquiry deserves to be held on the allegation and the complaints made and be concluded which shall be done within a period not later than two months from today.

Coming to the selections that have proceeded it is obvious that the 208 posts that were earlier subject matter of the order dated 16.7.2012 have again been advertised alongwith the 242 posts in the advertisement dated 15.10.2013. Thus as a natural corollary the outcome of the selections of the year 2011 will have a direct bearing on the selections of 208 posts pursuant to the advertisement dated 15.10.2013. The learned Single Judge who passed the order dated 17.12.2012 at the interim stage came to be stayed by the Division Bench on 30.1.2014. In the circumstances, the Director was justified in withholding the selection process thereafter. In our opinion, the learned Single Judge has proceeded to justify further progress in selections on the ground, that the present petitioner and the other petitioners who had challenged the order dated 16.7.2012, had themselves applied against the fresh advertisement dated 15.10.2013 and they would be getting a chance of selection and on this ground has gone to non-suit the said petitioners.

We cannot subscribe to the aforesaid view of the learned Single Judge, inasmuch as, the subsequent advertisement dated 15.10.2013 is in relation to a fresh proceeding without there being any decision on the cancellation of the earlier proceedings of selection. The learned Single Judge who passed the interim order on 17.12.2012 also did not proceed to decide the outcome of the decision dated 16.7.2012. To our mind the learned Single Judges could not have proceeded to do so either at the interim stage or finally without adjudicating the controversy relating to the cancellation of selections under the order dated 16.7.2012. The conclusion therefore drawn by the learned Single Judge is not justified in the background aforesaid. The learned Single Judge therefore ought not to have allowed the selection process to commence without adjudicating the status of the earlier selections of December, 2011.

As we have found that the inquiry deserves to be concluded in order to arrive at a firm conclusion about the selections of 2011, it would be appropriate that the final selections that are going on should be given the shape of formal selection by any appointment only pursuant thereto and after the aforesaid issue is finalized by the State Government.

However, there is yet another aspect which deserves to be considered, namely that the selections of Lab Technicians has been held up for the past two years in the entire State. What is also to be noted is that the State Government has given a relaxation of five years in age for all those candidates who had appeared in 2011, so that they may not loose their chance to appear again against the fresh advertisement dated 15.10.2013. It is also not disputed that not only the appellant but all such similarly situate petitioners have applied and have appeared in the exams against the advertisement dated 15.10.2013. Thus they have also taken chances subsequently and apart from this it is only one person, namely Dileep Kumar Chaudhary who has filed the present special appeal.

Consequently, in this scenario the selection process which has been initiated and the interviews whereof are going on pursuant to the advertisement dated 15.10.2013 shall continue and it shall be completed with the declaration of results that shall be subject to the outcome of the inquiry by the State Government as directed hereinabove.

Since no other person has challenged the advertisement dated 15.10.2013 nor has any other petitioner taken up the matter in appeal except Dileep Kumar Chaudhary, we direct that one post shall be reserved and not filled up keeping in view the chances of success or otherwise of the appellant in relation to the earlier selections of 2011.

The appeal is allowed to the aforesaid extent and the judgment of the learned Single Judge dated 1st August, 2014 is partially set aside to the extent of the findings recorded hereinabove and subject to the directions given hereinunder.

Order date: 03.12.2014

Sahu