# Ajay Kumar Mishra & others v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-30
- **Case number:** Civil Misc. Writ Petition No.65847 of 2008
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-mishra-others-v-state-of-u-p-and-others-41668
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.
226Cancellation of entire selection listSelection of Safai Karmi-large number of
irregularities, favoritism and corrupt
practices adopted in interview-being
satisfied with the report entire selection
cancelled-challenge made on ground
petitioner belong to general candidatewhile
bungling
done
under
reserve
category-select list not yet publishedgovernment is not bound to appoint such
candidate-overall
responsibility,
accountability to maintain fairness upon
the
Government-cancellation-held
proper.

Held: Para 14
The select list was not published and
thus the petitioners have not acquired
any rights to be selected. In State of M.P.
Vs. Sanjay Kumar Pathak, (2008) 1 SCC
456, the Supreme Court held that even
though selection process was completed
no appointment can be made in the
absence of select list and that the State
Government is not bound to appoint and
select candidates. The judgment in Inder
Preet Singh Vs. State of Punjab, (2006)
11 SCC 356, cited by the petitioners is
also not applicable to the facts of the
case. Here the corrupt practices adopted
by the selection committees were so
mixed up that it is not possible to
separate the tainted from those, who
may be honest and good candidates. It
will thus be in the interest of all
concerned that the selections are held
afresh.
Case law discussed:
(2008) 1 SCC 456, (2006) 11 SCC 356.

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
15. With the above observations,
writ petition is disposed of.

16. Office is directed to supply a
copy of this judgemnt free of cost to
learned Chief Standing Counsel for being
circulated to the Secretary concerned and
all the Collectors who shall in turn
circulate the same to all the Sub
Divisional Officers and Pradhans of Gaon
sabhas in their districts.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No.65847 of 2008

Ajay Kumar Mishra & others...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri V.D. Shukla

Counsel for the Respondents:
Sri s.P. Kesarwani, Addl. C.S.C.

Constitution
of
India,
Art.
226Cancellation of entire selection listSelection of Safai Karmi-large number of
irregularities, favoritism and corrupt
practices adopted in interview-being
satisfied with the report entire selection
cancelled-challenge made on ground
petitioner belong to general candidatewhile
bungling
done
under
reserve
category-select list not yet publishedgovernment is not bound to appoint such
candidate-overall
responsibility,
accountability to maintain fairness upon
the
Government-cancellation-held
proper.

Held: Para 14
The select list was not published and
thus the petitioners have not acquired
any rights to be selected. In State of M.P.
Vs. Sanjay Kumar Pathak, (2008) 1 SCC
456, the Supreme Court held that even
though selection process was completed
no appointment can be made in the
absence of select list and that the State
Government is not bound to appoint and
select candidates. The judgment in Inder
Preet Singh Vs. State of Punjab, (2006)
11 SCC 356, cited by the petitioners is
also not applicable to the facts of the
case. Here the corrupt practices adopted
by the selection committees were so
mixed up that it is not possible to
separate the tainted from those, who
may be honest and good candidates. It
will thus be in the interest of all
concerned that the selections are held
afresh.
Case law discussed:
(2008) 1 SCC 456, (2006) 11 SCC 356.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Shri Ashok Khare, Sr.
Advocate assisted by Shri V.D. Shukla for
the petitioner. Learned Standing Counsel
appears for the respondents.

2. The petitioners applied for
selections as 'Safai Karmis' in 'general
category', in response to the advertisement
dated 16.6.2008. They were subjected to
cycle test/ safai test and interviews on
different dates and were called to appear
in a test on 4.10.2008 at Vibhuti Narain
Government Inter College, Gyanpur. The
selection process concluded on 4.10.2008.
A final select list was prepared by the
district authorities. On 5.11.2008 the State
Government passed an order, on the
recommendation
of
the
District
Magistrate,
cancelling
the
entire
selections on the complaints made against
the
selection
process.
The
State
Government directed fresh selection to be
2 All] Ajai Kumar Mishra and others V. State of U.P. and others
633
held, excluding the officers, included in
the earlier selection committees. By this
writ
petition
the
petitioners
have
questioned the validity of the order dated
5.11.2008 of the State Government
cancelling the entire selections and the
notification dated 3.11.2008 issued by the
District Panchayat Raj Adhikari, Sant
Ravi Das Nagar readvertising 1264 posts
of 'Safai Karmis' to be selected in
accordance with the procedure provided
in the Group-D Employees Service Rules,
1985 (the Rules), as amended from time
to time.

3. Shri Ashok Khare, learned
counsel for the petitioner submits that the
State Government did not have authority
under the Rules to cancel the selections
held in accordance with the statutory
Rules. The order has been passed without
application of mind on the report of the
District Magistrate, which was wholly
motivated and based on surmises and
conjectures. The committees constituted
by the District Magistrate had maintained
transparency
and
impartiality
in
selections. The material on the basis of
which selection were cancelled was not
sufficient to arrive at the conclusion to
cancel the selection process.

4. In the counter affidavit of Shri
K.P. Singh, District Panchayat Raj
Officer, Sant Ravi Das Nagar, Bhadohi it
is stated in the beginning, in para 3 (b)
that the impugned advertisement is dated
3rd
December,
2008,
and
not
3rd
November, 2008. An advertisement was
issued on 16.6.2008 inviting application
for recruitment of 1264 posts of Safai
Karmis in Distt. Sant Ravi Das Nagar,
Bhadohi, followed by a corrigendum
dated 09.7.2008. The posts were created
by Government Orders dated 1.3.2008,
11.4.2008 and 6.6.2008, to be filled up in
accordance with Group-'D' Employees
Service Rules, 1985, for sanitation and to
maintain cleanliness for the health of
general public in villages from amongst
persons,
who
had
knowledge
and
experience in cleaning of roads and drains
etc., one of the basic eligibility for
appointment.

5.

The
District
Magistrate
constituted two selection committees,
consisting
of
three
members
each
including
Shri
R.D.
Ram,
Distt.
Employment Officer, Shri N.K. Singh,
Distt. Panchayat Raj Officer as Chairmen
of these selection committees. It is stated
in para 3 (e) to (h):-

"(e) That on 29.9.2008 the District
Magistrate made a surprise inspection. At
the time of inspection the Chairman as
well as the members of Board No.2
(selection committee No.2) were present
and the number sheets were in process of
being sealed. During the course of
inspection 10 slips and two note books
containing roll numbers of candidates
with description of certain amounts were
recovered
from
the
pocket
of
the
Chairman of Board No.2 i.e. Shri N.K.
Singh, District Panchayat Raj Officer.
Similarly a list was recovered from the
member of the Board Shri P.C. Prasad
which
also
contained
various
roll
numbers. Statement of Shri N.K. Singh
was recorded in presence of officers who
admitted the slips etc., to be in his
handwriting and also that the same have
been
recovered
from
his
pocket.
Consequently the District Magistrate
appointed
the
District
Development
Officer as Enquiry Officer to enquire into
the matter and to submit his report. The
enquiry was conducted by the Enquiry
634 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Officer who submitted his report dated
3.10.2008 annexing therewith various
documentary evidences which clearly
revealed
commission
of
serious
illegalities at large scale in selection
process and taking of money from
selection etc. The Enquiry Officer also
came to the conclusion that the entire
selection process/ interview was neither
transparent nor impartial. He also noted
the fact based on documentary evidences
that
marks
awarded
initially
were
changed
by
increasing
the
marks
substantially so as to select particular
candidates. After receipt of the aforesaid
Enquiry Report dated 3.10.2008 the
District Magistrate considered the same
and referred the matter to the State
Government alongwith Enquiry Report
vide D.O. Letter dated 7.10.2008. True
copy of the statement on oath of Shri N.K.
Singh, District Panchayat Raj Officer
dated
29.9.2008
bearing
acknowledgment/ signature of certain
other officers/ members of the selection
committee, true copy of the Enquiry
Report dated 3.10.2008 along with its
annexures and true copy of the letter of
District
magistrate
dated
7.10.2008
referring
the
matter
to
the
State
Government are annexed herewith and
are marked as Annexure No.CA-3, CA-4
and CA-5 respectively to this Counter
Affidavit.
(f) That in view of the facts found as
aforementioned, the District Magistrate
changed the constitution of the selection
committee vide orders dated 30.9.2008,
1.10.2008,
3.10.2008
and
4.10.2008
(collectively marked as Annexure No.9 to
the writ petition).
(g) That since serious illegalities and
irregularities at large scale in the
selection process were evidence on record
and as such the number sheets prepared
by selection committees upto 4.10.2008
were sealed and kept in the double lock of
treasury. The final list/ merit list was
neither prepared nor has been prepared
so far as and as such the allegation of the
petitioners that their names appear in the
select list is wholly baseless.
(h) That considering the serious
illegalities and irregularities committed in
the selection process of Safai Karmis, the
State Government cancelled the entire
selection process and directed the District
Magistrate vide letter dated 5.11.2008
(Annexure No.12 to the writ petition) to
constitute fresh selection committee for
selection in accordance with law. The
State Government further directed that
none of the officers who were either the
Chairman or member of the selection
committee should be kept in the new
selection committee/ Selection Board.
Pursuant to the aforesaid direction the
impugned Advertisement dated 3.12.2008
(Annexure No.13 to the writ petition) has
been issu3ed which has been wrongly
alleged to be the Advertisement dated
3.11.2008. It is further relevant to
mention
that
the
intimation
of
cancellation of selection process was
pasted
on
the
Notice
Board
of
Collectorate and Vikas Bhawan."

6. Learned Standing Counsel
submits that the District Magistrate had in
her inspection, noticed gross irregularities
in selections. The Chairman of Board
No.2 Shri N.K. Singh and the member
Shri P.C. Prasad were found to have a
number of slips in their hand writing and
money in their possession. The report of
the Committee constituted by the District
Magistrate clearly established that the
Chairman
and
the
members
were
accepting money and recommendations
for selections. The details of these slips
2 All] Ajai Kumar Mishra and others V. State of U.P. and others
635
have been annexed to the counter affidavit
and the report of Shri R.P. Misra, Distt.
Panchayat Raj Officer is enclosed. The
enquiry report refers to 10 slips and two
note books bearing 236 roll numbers with
some mobile phone numbers and 3
doubtful numbers, written twice over.
About 70 roll numbers were written
twice. The Enquiry Officer examined 169
roll numbers out of which 6 were in SC
and 47 in OBC category. Out of these 146
roll numbers written on slips and
notebook did not mention any category.
The Enquiry Officer examined all the roll
numbers in all the categories in which
they were mentioned, and examined 116
roll numbers in all categories and found
that out of these 169 candidates, the
marks of 109 candidates in the interviews
upto 29.9.2008 were tampered and were
increased. The marks of roll number 1611
was increased by three marks, but the
original marks given by the Committee
were not mentioned. Out of 169, 67 in SC
and 65 in OBC (total 132) were given
sufficient marks to get them selected and
that marks of 53 OBC and 5 SC
candidates were increased to such an
extent that they should be selected. The
enquiry officer found that in the first
committee marks of 24 were changed by
the first member, 17 by the second
member and 33 by third member and in
the second committee marks of 37
candidates were changed by first member,
13 by second member and 31 by the third
member respectively in their lists. These
marks were increased to ensure their
selections. It was also found by the enqiry
officer that the sheets of paper on which
marks of interviews were recorded did not
bear the signature of Chairman and the
concerned member of the Committee. In
most of these sheets only last pages were
signed, and that all the pages did not bear
the signature of the members, nor the
cuttings or overwriting were signed. The
validity of the list had thus become
doubtful.

7. The enquiry officer also found
that the names of the candidates, which
were given higher marks were either
ticked or underlined on the broad sheet to
ensure that they were given sufficient
marks
to
get
selected.
On
these
irregularities it was reported that large
scale favouritism and corrupt practices
were adopted in the interviews, on which
the selections cannot be said to be
transparent, impartial and just. The
District Magistrate submitted a report of
these irregularities and corrupt practice to
the State Government on which the
selections were cancelled.

8. Shri Ashok Khare, learned
counsel appearing for the petitioners
would submit that all the petitioners
belong to general category. Out of 1264
posts of Safai Karmis 632 posts were in
the general category and that against these
posts there were only 315 applicants, and
that 225 appeared in the selection process
on 4.10.2008. There was no allegation
against general category candidates nor
any material was found to cancel their
selections. The slips, the note book, and
the tampering of the broad sheets in the
marks were all related to scheduled castes
and other backward class candidates. The
petitioners were not at fault and were not
affected by the allegations in the
complaints and the material found in the
enquiry. He submits that if selection
process was found to be tainted, the
District Magistrate was required to see the
effect of the material collected and the
findings of the enquiry officer in
recommending to cancel the selections.
636 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
The District Magistrate was required to
consider whether the material found and
the report of the enquiry officer could be
related to the selection of general
candidates and whether the selection of
the general candidates could also be
cancelled on the same grounds.

9. The selections were held for 1264
posts. Out of these 50% posts were
reserved and the remaining 50% were to
be
filled
up
by
general
category
candidates. A perusal of the counter
affidavit and the material recovered from
the Chairman and the members of the
Selection Committee and the report of the
District Development Officer appointed
by the District Magistrate as Enquiry
Officer would show, that on 29.9.2008 in
a surprise inspection made by the District
Magistrate, he found 10 slips and 2 note
books in the possession of the Chairman
of Committee No.2, Shri N.K. Singh,
Distt. Panchayat Raj Officer and a
member of the Board. They admitted the
slips to be in their own hand writing and
its recovery from their pockets. The
enquiry officer, confined the enqiry to the
239 roll numbers written on these slips
and note books. Out of these 70 roll
numbers were repeated on these slips and
thus there were a total of 169 roll
numbers. The 116 roll numbers did not
indicate their categories, and thus the
enquiry officer enlarged the area of his
enquiry by examining the 116 roll number
in all the categories and found that out of
these 169 roll numbers there were 67 SC
and 65 OBC, total 132 candidates, the
marks were increased, so that they are
selected and out of these 53 candidates
belong to OBC or SC. The marks of 37
OBC and 5 SC candidates totalling 42
candidates were again increased to such
an extent that they should get selected.
The marks of a total number of 109
candidates were revised, the details of
which is given in the enquiry report.

10. The submission that out of 632
posts in the general category, there were
only 315 applicants and that 225 appeared
in the selection process of 4.10.2008 is
not founded upon the pleading in the writ
petition. The petitioners have not stated in
the writ petition, or in the rejoinder
affidavit that there were only 315
applicants for 632 general category posts
appeared for selections.

11. The enquiry report of the District
Development Officer, Sant Ravi Das
Nagar refers to 10 slips and two note
books bearing 236 roll numbers. Out of
70 roll numbers were written twice over
and that 146 roll numbers did not mention
the category of the candidates. The
enquiry
officer
examined
116
roll
numbers in all the categories. It was found
that out of 169 candidates the marks of
109 candidates in the interviews were
tampered and were increased. Out of 169,
67 in SC and 65 in OBC category were
given sufficient marks to get them
selected and that marks of 53 OBC and 5
SC candidates were increased. The
enquiry
officer
has
not
mentioned
anything about the general category
candidates in his report, but his report
does not show that only reserved category
candidates were the beneficiaries of the
irregularities.
The
irregularities
committed in the selection process, do not
point only towards the reserve category
candidates. The irregularities were so
mixed up that the selection of general
category candidates may be separated and
saved.
2 All] Shri Nand Kumar Agarwal and another V. State of U.P. and others
637
12. The District Magistrate in her
report
dated
7.10.2008
to
the
Commissioner,
Vindhyachal
Region,
Mirzapur forwarded the opinion of the
enquiry
officer,
along
with
her
recommendations that interviews were not
transparent
and
that
money
was
exchanged in manipulating the marks of
large number of candidates. The boards
assembled, half a hour before the
interviews every day, after 30.9.2008. She
recommended the cancellation of the
entire selections.

13. The irregularities in this case
were practiced on such a large scale that it
cannot be said that the general category
candidates did not benefit or that they can
be separated from the reserved category
candidates, in declaring the results. The
material on record does not support the
submission that the tainted candidates can
be separated from the candidates, who did
not influence increase of marks for
ensuring their selections.

14. The select list was not published
and thus the petitioners have not acquired
any rights to be selected. In State of M.P.
Vs. Sanjay Kumar Pathak, (2008) 1
SCC 456, the Supreme Court held that
even
though
selection
process
was
completed no appointment can be made in
the absence of select list and that the State
Government is not bound to appoint and
select candidates. The judgment in Inder
Preet Singh Vs. State of Punjab, (2006)
11 SCC 356, cited by the petitioners is
also not applicable to the facts of the case.
Here the corrupt practices adopted by the
selection committees were so mixed up
that it is not possible to separate the
tainted from those, who may be honest
and good candidates. It will thus be in the
interest
of
all
concerned
that
the
selections are held afresh.

15. The District Magistrate is the
appointing authority of 'Safai Karmis' in
the Rules of 1985. The State Government
as employer of all the government
servants has overall responsibility and
accountability to maintain transparency
and fairness in the selections, and thus it
cannot be said that the State Government
did not have the authority to cancel the
selections.

16. The writ petition is dismissed.
The interim order dated 18.12.2008 is
discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2009

BEFORE
THE HON'BLE PRAKASH KRISHNA, J

Civil Misc. Writ Petition No. 3118 of 1993

Shri Nand Kumar Agarwal and another

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel forthe Petitioner:
Sri R.P. Goyal
Sri Manish Goyal

Counsel forthe Opposite Party:
S.C.

Stamp Act-Section 35-B of Schedule 1-B-
read with Section 2(16)(c):Stamp dutylease deed executed for 10 years-annual
rent of Rs. 400/- per annum-stamp duty
of Rs. 90 paid-proceeding initiated for
additional amount on ground the plot
situated within market area of 1500 sq.
feet-held
stamp
duty
be
paid
in
accordance with real nature or substance