# Dilip Kumar Shukla & Ors v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1391
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-20
- **Case number:** Writ-A No. 59355 of 2012
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-kumar-shukla-ors-v-state-of-u-p-ors-43331
- **Pages:** 10

## Headnote

Group 'D' Employees Service Rules 1985Rule 19 (2), (3) and (4)-Dismissal of class
4th employee-non payment of salary-on
ground select list bears signature of
chairman of committee-other two members
not
signed-held-in
absence
of
such
requirement in absence of corrupt practices
or selection made under influence of
money-entire
selection
can
not
be
canceled-the
other
ground
regarding
direction of High Court to absorb the
retrenched employee of State Cement
Corporation-not available as almost every
petitioner the petitions in that writ petition
have been already accommodate any where
else and getting salary-held-dismissal order
illegal-direction for salary given.
Held: Para-27
In the matter, the marks were awarded
by all the three members separately. The
respondents have not brought on record
to indicate or suggest that there is any
provision of signing final select list by all
the
members
of
the
Selection
Committee. Neither at the time of
enquiry nor in the counter affidavit any
irregularity
or
infirmity
has
been
indicated by the respondents to suggest
that
the
members
of
the
Selection
Committee had not awarded the marks
independently. The final list was prepared
by the Appointing Authority based upon the
marks awarded by the Selection Committee
and as such it does not contravene any
clause of the Rules of 1985. While passing
the impugned order, nothing has been
averred to indicate that while finalising the
select list by the Chairman, the marks
awarded by two other members, have been
manoeuvred or marks have been increased
or decreased and as per her own whims and
fancies the final select list had been
prepared.
Case Law discussed:
[2009 (3) ADJ 42]; AIR 1970 SC 1269; 1992
AIR SC 952; AIR 1994 SC 2166; AIR 2001 SC
2196; 2002 AIR SC, 1119; (2005) 6 SCC 149;
AIR 2006 SC 2571; AIR 2002 SC 1119

## Text

3 All] Dilip Kumar Shukla & Ors. Vs. State of U.P. & Ors.
1391
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Writ-A No. 59355 of 2012
connected with
Writ-A No. 60075 of 2012 and Writ-A No.
66199 of 2012
Dilip Kumar Shukla & Ors. ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Nisheeth Yadav
Counsel for the Respondents:
C.S.C.
Group 'D' Employees Service Rules 1985Rule 19 (2), (3) and (4)-Dismissal of class
4th employee-non payment of salary-on
ground select list bears signature of
chairman of committee-other two members
not
signed-held-in
absence
of
such
requirement in absence of corrupt practices
or selection made under influence of
money-entire
selection
can
not
be
canceled-the
other
ground
regarding
direction of High Court to absorb the
retrenched employee of State Cement
Corporation-not available as almost every
petitioner the petitions in that writ petition
have been already accommodate any where
else and getting salary-held-dismissal order
illegal-direction for salary given.
Held: Para-27
In the matter, the marks were awarded
by all the three members separately. The
respondents have not brought on record
to indicate or suggest that there is any
provision of signing final select list by all
the
members
of
the
Selection
Committee. Neither at the time of
enquiry nor in the counter affidavit any
irregularity
or
infirmity
has
been
indicated by the respondents to suggest
that
the
members
of
the
Selection
Committee had not awarded the marks
independently. The final list was prepared
by the Appointing Authority based upon the
marks awarded by the Selection Committee
and as such it does not contravene any
clause of the Rules of 1985. While passing
the impugned order, nothing has been
averred to indicate that while finalising the
select list by the Chairman, the marks
awarded by two other members, have been
manoeuvred or marks have been increased
or decreased and as per her own whims and
fancies the final select list had been
prepared.
Case Law discussed:
[2009 (3) ADJ 42]; AIR 1970 SC 1269; 1992
AIR SC 952; AIR 1994 SC 2166; AIR 2001 SC
2196; 2002 AIR SC, 1119; (2005) 6 SCC 149;
AIR 2006 SC 2571; AIR 2002 SC 1119
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard Shri Ashok Khare, learned
Senior Counsel assisted by Shri Siddharth
Khare and Shri Nisheeth Yadav, learned
counsel for the petitioners. Shri H.C.
Pathak, learned Standing Counsel appears
for the respondents.
2. As the controversy involved in all
the writ petitions are similar, they are
being decided by this common judgment.
3. The facts of Writ Petition
No.59355 of 2012 are being taken as
leading case for deciding the writ
petitions.
4. By means of present writ petition,
the petitioners have prayed for following
reliefs:-
"(a) a writ, order or direction in the
nature
of
certiorari
quashing
the
1392
 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order dated 12.10.2012 passed
by Director of Education (Secondary),
U.P., Lucknow (Annexure No.10) as also
the order dated 20.10.12 issued by the
District Inspector of Schools, Sonbhadra
(Annexure No.11);
(b) a writ, order or direction of a
suitable
nature
commanding
the
respondents not to cause any interference
in the working of the petitioners as ClassIV employees under them and to pay the
petitioners their regular monthly salary
on the said post regularly every month;
(c) a writ, order or direction of a
suitable
nature
commanding
the
respondents to disburse to the petitioners
the arrears of their salary from the date of
their appointment till date, within a
period to be specified by this Hon'ble
Court."
5.
It appears from the record that the
District Inspector of Schools, Sonbhadra
issued an advertisement, which was published
in the news paper 'Dainik Jagran' dated
27.05.2008 inviting applications for making
appointments of 23 Class-IV employees in the
district. The advertisement specified that the
selection proceedings would be conducted on
18.6.2008 in the office of the District
Inspector of Schools, Sonbhadra. All the
petitioners being fully qualified and eligible
had applied in pursuance to the aforesaid
advertisement. Even though the advertisement
had notified 18.6.2008 as the date of
interview, the said interview stood adjourned
and a notice to such effect was published by
the District Inspector of Schools, Sonbhadra
in the local newspaper. Thereafter, the
selection proceedings were scheduled on
10.09.2008 and intimation thereof was given
to the applicants by post.
6. All the petitioners participated in the
selection proceedings. In the select list
finalized by the District Inspector of Schools,
Sonbhadra, the petitioners were included
amongst
the
selected
candidates
for
appointment. Based upon the aforesaid
selection, appointment orders were issued to
each of the petitioners in different colleges.
The names of the petitioners were forwarded
by the District Inspector of Schools,
Sonbhadra
to
Principals
of
different
institutions for issuance of appointment
letters and ensuring joining of the selected
candidates. Thereafter, appointment orders
were issued to the petitioners either at the
level of District Inspector of Schools,
Sonbhadra himself or at the level of the
Principal of the concerned Government Inter
College in the year 2008. Pursuant to the
appointment orders so issued, each of the
petitioners joined at their respective place of
posting and since then they have been
continuously functioning and discharging
duties. It is averred that the work and conduct
of each of the petitioners has been fully
satisfactory. Even though the petitioners have
been appointed on the basis of regular
selection and have been continuously
working, no payment of salary has been
made to the petitioners due to erroneous and
misconceived objections.
7.
The appointment orders issued to
the petitioners by the District Inspector of
Schools were referred to in the Writ Petition
No.28398 of 2008 by the persons, who were
displaced employees of U.P. State Cement
Corporation and whose services stood
terminated on account of winding up of U.P.
State Cement Corporation. The writ petition
filed by them was with regard to claim of
their absorption. On 13.6.2008 an interim
order was passed in the aforesaid writ
petition, which reads as under:-
"Heard learned counsel for the
parties.
3 All] Dilip Kumar Shukla & Ors. Vs. State of U.P. & Ors.
1393
Let counter affidavit be filed by the
respondents within a period of six weeks.
Rejoinder affidavit, if any, may be filed
within two weeks, thereafter.
List in the 3rd week of August, 2008.
As per learned counsel for the
petitioners, the petitioners be accommodated
in government institutions. In District
Mrizapur as their services were terminated
in
institution
run
by
U.P.
Cement
Corporation because of winding up of U.P.
Cement Corporation. The posts have now
been advertised for taking up candidates
from open market by ignoring the cases of
existing Class-IV workers, who had lost their
jobs because of winding up of U.P. Cement
Corporation. It would not be appropriate to
recruit fresh hands after terminating the
services of existing personnel, who have put
in substantial period of service in the
institution.
Accordingly as an interim measure,
it is provided that the petitioners services
shall not be dispensed with and in direct
recruitment process the posts held by
them shall not be filled."
8.
Learned counsel for the petitioner
submits that there exist no prohibition under
the said stay order against the selection
proceedings being held with regard to vacant
post. It is specifically stated that the posts
against which the petitioners have been
appointed were never held by the petitioners
of the aforesaid writ petition. Even otherwise
the aforesaid controversy involved in writ
petition no.28398 of 2008 no longer survives
in view of the fact that all the eight
petitioners of the said writ petition have been
granted absorption against different Class-IV
posts and they are presently working and
drawing salary. The absorption of such
persons are made on the different posts other
than the posts held by the petitioners. There
exist no rational justification for not making
payment of salary to the petitioners. Such
inaction is despite repeated representations
having been filed by the petitioners.
9.
The payment of salary stood
withheld on the objections contained in
reference made by the Finance & Accounts
Officer, Office of District Inspector of
Schools, Sonbhadra by communication dated
9.6.2009 to the Director of Education
(Secondary) seeking guidance with regard to
releasing payment of salary to the petitioners.
When nothing has been done with regard to
release of salary of the petitioners, they were
compelled to file a writ petition before this
Court being Writ Petition No.23869 of 2011
(Dilip Kumar Shukla & Ors. v. State of U.P.
& Ors.), which was finally disposed of on
20.1.2012 with following observations:-
"1. The only relief sought in the writ
petition is that the responders be
restrained from causing any interference
in the functioning of petitioners as Class
IV employee and to ensure payment of
salary to them month to month.
2. Heard Sri Ashok Khare, Senior
Advocate assisted by Sri Siddharth Khare
for the petitioners and learned Standing
Counsel for the respondents.
3.
The petitioners' claim that an
advertisement was published on 27.5.2008
by the District Inspector of Schools,
Sonbhadra (hereinafter referred to as
"DIOS") advertising 23 vacancies in Class
IV. The last date of submission of application
form was 12.06.2008 and the date of
interview was notified as 18.06.2008. The
petitioners appeared in the aforesaid
selection and ultimately were appointed in
various Government colleges by the letter of
appointment issued by appointing authority.
The names of selected candidates were
recommended by DIOS to various Principals
of
Government
colleges
in
Distric
1394
 INDIAN LAW REPORTS ALLAHABAD SERIES
Sonbhadra for appointment whereafter the
Principals issues appointment letters. All the
petitioners were appointed in November,
2008 and pursuant thereto they have joined
and are working. There is no reason entitling
respondents not to pay salary to the
petitioners yet their salary has been withheld
pursuant to reference made by Finance and
Accounts Officer (in the office of DIOS) by
letter dated 9.6.2009 to the Director of
Education
(Secondary)
and
thereafter
nothing has been done.
4. A counter affidavit has been filed by
respondents stating that the then DIOS sought
permission of Joint Director of Education,
Vindhyachal Mandal, Mirzapur vide letter
dated 20.05.2008 for making 26 appointments
of Class IV posts under general quota. The
permission, as sought, was granted by Joint
Director of Education vide letter dated
22.5.2008. Thereafter advertisement was
issued and it is claimed that 3194 applications
were received by the last date i.e. 18.6.2008.
During this period 8 employees of Cement
Factory Inter College, Churk, Sonbhadra
preferred writ petition No.28398 of 2008
before this Court seeking their absorption as
Class IV employees in Government colleges in
which an interim order was passed by this
Court on 13.6.2008 directing that 8 posts out
of 23 shall not be filled up.
5. The selection thus proceeded, as
claimed by DIOS but departmental received
information that several malpractice and
illegality were committed whereupon an
enquiry was ordered to be conducted by
Joint Director of Education, Jhansi Region
Jhansi. It is said that enquiry officer has
submitted
report
regarding
selection
proceedings and the matter is pending for
final decision before Director of Secondary
Education/State level.
6.
Learned
Standing
Counsel
submitted that enquiry officer found
several irregularities and illegalities in
the selection and therefore, respondents
are not paying salary to the petitioners.
7. This Court has no reservation in
observing
that
if
there
is
any
apprehension
of
malpractice
in
a
selection, State is well within its right to
proceed to conduct an enquiry but in the
garb of such enquiry it cannot keep the
matter pending sine die without any
positive but quick decision. At least in a
reasonable time the enquiry and the
decision must have accomplished.
8. In the present case it is admitted
by respondents that enquiry officer has
submitted his report but final decision is
yet to be taken by Director of Education
(Secondary) and the State Government.
9. In view of the above, in my view, it
would be appropriate to dispose of the
writ petition in the following manner:
(i) The competent authority namely
Director of Education (Secondary) and/or
the State Government, as the case may be,
shall take final decision in the matter of
enquiry conducted in the selection and
appointments of petitioners expeditiously
but in any case not later than six weeks
from the date of production of a certified
copy of this order.
(ii) In case competent authority find
that there was no irregularity in the
selection and petitioners are entitled for
payment of salary, their salary shall be
released forthwith thereafter and entire
arrears of salary shall be paid to them
within a month from the date of taking
such a decision.
(iii). In case competent authority
takes decision otherwise, which is likely
to cause prejudice to the petitioners in the
matter
of
their
appointment
and
continuance on the post, it shall take
appropriate action in accordance with
law after giving due opportunity of
3 All] Dilip Kumar Shukla & Ors. Vs. State of U.P. & Ors.
1395
hearing to all the petitioners and other
similarly situated persons.
10. I order accordingly.
11. No order as to costs."
10.
In compliance of the aforesaid
order, an order dated 12.10.2012 has been
passed by the Director of Education
(Secondary) holding that there exist no
justification for payment of salary to the
petitioners after treating the appointments of
the petitioners to be irregular. The sole
reason was recorded in the aforesaid order
that after the conclusion of the selection
proceedings, the Chairman of the selection
committee prepared the final consolidated
select list under her own signature alone and
such final select list did not contain the
signatures of the remaining two members of
the
selection
committee.
The
orders
impugned further records that the aforesaid
amounts to a contravention of Group-D
Employees Service Rules, 1985 and the
Group-D Employees Service Rules, 2008. A
disciplinary action was also recommended
against Dr. Richa Gupta, the appointing
authority. Pursuant to the order dated
12.10.2012, the District Inspector of Schools,
Sonbhadra has proceeded to issue an order
dated 20.10.2012 whereby the appointments
of 26 persons mentioned therein have been
cancelled.
11. Learned counsel for the
petitioners
submits
that
the
orders
impugned have been passed in an
arbitrary and discriminatory manner and
also in violation of the principles of
natural justice. It is specifically stated that
in the hearing fixed for 23.4.2012, no
actual hearing took place apart from
recording the presence of the petitioners.
No hearing was accorded by the Director
of Education. The order impugned relies
upon the reports of the Joint Director of
Education and the District Inspector of
Schools and copies of enquiry reports
submitted by the different authorities.
Reliance so placed is totally exparte to the
petitioners as no copy thereof was
supplied
to
the
petitioners
with
opportunity to object the same.
12.
The impugned order refers to
Group-D Employees Service Rules, 1985 (in
short "the Rules of 1985"), which has been
annexed as Annexure No.12 to the writ
petition. The procedure for selection is
specified under Rule 19 of the Rules of 1985.
Rule 19 (4) of the Rules of 1985 provides
that the names in the select list shall be
arranged according to the marks awarded at
the interview. Under Rule 19 (2) and (3)
thereof it has been provided that the
members of the selection committee shall
award their marks. There exists nothing
under the Rules of 1985 either by way of
explicit requirement or even by way of
necessary intendment, which may require the
final select list to be prepared under the joint
signatures of all members of the selection
committee. The preparation of the final select
list by the appointing authority based upon
the marks awarded by the members of the
selection committee in no way contravenes
any clause of the Rules of 1985. The entire
selection has been conducted strictly in
accordance with law and there is no infirmity
in it.
13. Shri Ashok Khare, learned
Senior Counsel submits that in the present
matter the selection committee was
constituted strictly in accordance with the
Rules of 1985. The marks were awarded
by all the three members separately. It is
submitted that there is no provision of
signing final select list by all the members
of the Selection Committee. Neither at the
1396
 INDIAN LAW REPORTS ALLAHABAD SERIES
time of enquiry nor through the counter
affidavit any irregularity or infirmity has
been indicated by the respondents to
indicate that the members of the Selection
Committee had not awarded the marks
independently. Only infirmity has been
indicated in the selection process that the
final list-tabulation was signed only by
the Chairman of the Selection Committee.
Therefore, no inference can be drawn that
the entire selection was vitiated only on
this ground alone.
14. Learned counsel for the
petitioners, in support of his submissions,
has placed reliance in Ram Prakash Singh
& Ors. v. State of U.P. & Ors., [2009 (3)
ADJ 42, the relevant portion of the
judgment is reproduced as under:-
"On these facts the counsels appearing
for the petitioners contend that quality point
marks in descending order were given
strictly in accordance with Rule 5 (3) of the
Rules of 2002. The number of marks to be
awarded on sports are provided for in the
rules itself, and that there was no necessity to
advert to the Government orders in that
regard. Rule 5 (3) (c) provide for 5 marks, if
a candidate had participated in international
level sports : four marks for participating in
national level sports ; three marks in State
level sports and two marks in participating in
University/College/School level sports. The
selection committee was constituted strictly
in accordance with Rule 6, which does not
provide for signatures of all the members of
selection committee on the final results, and
for drawing category wise list for vertical
and horizontal reservation. They would
further submit that secrecy adopted by the
District Panchayat Raj Officer in preparing
the final select list and keeping it in safe
custody and in getting appointment letter
typed and dispatched could not be taken to
be irregularities, which may vitiate the
selection. The Rule 5 of the Rules of 2002
provides
for
complete
procedure
of
selections. There is no complaint that
advertisement was not carried out in daily
newspaper having wide circulation and that
vacancies were notified on the notice board
and was not notified to the employment
exchange.
The
marks
of
academic
qualifications were correctly added and that
wherever there was a mistake, the selection
committee immediately corrected it. The
marks for sports were awarded strictly in
accordance with the Rule 5(3)(c) of the Rules
of 2002, which provide for three marks for
sportsman of State level as against 4 by the
earlier Government order. Each member of
the selection committee and the appointing
authority was entitled to give the marks for
interviews. There is nothing on record to
show that any common basis or criteria was
adopted by the selection committee in
awarding minimum or maximum marks to
any candidates. There is no provision of
signing the final select list by all the
members of the selection committee and that
they had no grievance with regard to marks
awarded by them to the candidates. Learned
Counsel for the petitioner would further
submit and were supported by Shri Ashok
Khare, senior advocate appearing for Shri R.
B. Sahu, the then Panchayat Raj Officer
arrayed as respondent No. 6 that the
adherence to secrecy and the typing of the
appointment letters on the computer of the
Deputy Director of the same department and
their dispatch, which were entered in the
dispatch register was not a doubtful act at
all. The attempt to maintain secrecy and
transparency was wrongly taken to be an
attempt to vitiate the selections. The entire
approach of the enquiry committee as well as
the State Government was illegal. The arrest
of the respondent No. 6 and other two clerks
have been stayed by this Court in Writ
3 All] Dilip Kumar Shukla & Ors. Vs. State of U.P. & Ors.
1397
Petition No. 3303 of 2008. It is contended
that the completely ex parte mala fide and
baseless report was prepared on the dictate
of the Private Secretary of the Hon'ble
Minister, Director, Deputy Director and the
District Magistrate, who were interested in
selections of some persons. They could not
lay their hands on the final select list and
that the issuance of the appointment letters
before they could influence the selections
annoyed them."
15.
Per contra learned Standing
Counsel has defended the impugned orders
and stated that they had been passed strictly
in accordance with law and there is no
infirmity in them. He further submits that the
subject selection was conducted by the three
member committee nominated by the
District
Magistrate
by
order
dated
14.08.2008.
The
aforesaid
Selection
Committee had proceeded with the selection
proceedings from 8.9.2008 to 10.10.2008.
Each members awarded marks on separate
sheets and after keeping the sheets in
envelope, the envelope of each members was
kept in the safe custody of the then District
Inspector of Schools-Chairman of the
Selection Committee on each date and the
almirah was sealed with the signature of the
three members. The Chairman of the
Selection Committee behind the back of the
two members of the Selection Committee
has broken the seal of the almirah and
opened the envelope kept in the safe custody
and after perusing the marks awarded by
each members, she has prepared a final select
list, which bears only the signature of the
Chairman of the Selection Committee and
the final select list bears no signature of other
two members of the Selection Committee
nominated by the District Magistrate.
16. Learned Standing Counsel also
submits that the District Inspector of
Schools has not complied the order dated
13.6.2008 passed by this Hon'ble Court in
Writ Petition No.28398 of 2008 in which
the Court has directed that out of
advertised posts eight seats will not be
filled up by the recruiting authority,
which is held by the petitioners in the
aforesaid writ petition.
17. Heard rival submissions and
perused the record.
18. The District Inspector of Schools,
Sonbhadra had issued an advertisement,
which was published in Hindi newspaper
"Dainik Jagaran" on 27.5.2008 inviting
applications for making appointment of 23
Class-IV employees in the district. Even
though the advertisement notified 18.6.2008
as the date for interview, the said interview
stood adjourned and a notice to such effect
was published by the District Inspector of
Schools, Sonebhadra in the local newspaper.
Thereafter, the selection proceedings were
scheduled on 10.9.2008 and the intimation
thereof was given to the applicants by post.
Admittedly all the petitioners participated in
the selection process. The select list was
finalised by the District Inspector of Schools
and the names of petitioners were found in
the select list. Based upon the selection, the
appointment orders were issued to each of
the petitioners for different Colleges and
accordingly the name of the petitioners were
forwarded by the District Inspector of
Schools to the Principal of different
institutions for issuing appointment letters
and ensuring joining of the selected
candidates.
19. It has also been brought on
record to indicate that in pursuance of the
appointment orders so issued each of the
petitioners joined at their respective place
of posting and since then they have been
1398
 INDIAN LAW REPORTS ALLAHABAD SERIES
continuously functioning and discharging
their dues. In compliance of the order
passed by this Court in Writ Petition
No.23869 of 2011 (Dilip Kumar Shukla
& ors vs. State of UP & ors), the present
impugned order has been passed by the
Director
of
Education
(Secondary)
holding that there exists no justification
for payment of salary to the petitioners
after
treating
the
appointment
of
petitioners to be irregular.
20.
A bare perusal of the impugned
order as well as the record, it clearly gives an
impression to the Court that the sole reason
was recorded in the order dated 12.10.2012
that after the conclusion of selection process,
the Chairman of the Selection Committee
prepared the final consolidated select list
under her own signature alone and said final
select list did not contain the signature of
remaining two members of the Selection
Committee. The order impugned further
records that the same was in contravention of
Group 'D' Service Rules, 1985 and Group 'D'
Service Rules, 2008 and as such the
disciplinary proceedings were recommended
against Dr. Richa Gupta, the then District
Inspector
of
Schools,
Sonebhadra-the
appointing authority. Pursuant to the order
dated 12.10.2012 the District Inspector of
Schools, Sonebhadra had proceeded to issue
an order dated 20.10.2012 whereby the
appointments of 26 persons mentioned
therein have been cancelled.
21. The Court had examined the
records. Except the aforesaid allegation,
no other illegality, favourtism or nepotism
has been alleged by the respondents and
further no allegation has been levelled
that the recruitment was manoeuvred for
any extraneous consideration including
monetary consideration. This is not the
case that the recruitment were made
without following the due procedures
prescribed under the Rules, such as, the
recruitment have been made without the
mandatory
advertisement
or
by
overlooking the mandatory eligibility
requirement. In other words the illegality
to enable cancellation of the entire
recruitment was only to the extent that the
final select list was not prepared with the
signatures of two other members whereas
only the District Inspector of Schools,
Sonebhadra had signed the same.
22. In the present matter, there was an
open
invitation
through
advertisement.
Admittedly, the petitioners appeared in the
selection process and finally, they were
selected and accordingly appointment letters
had also been issued in their favour. No
plausible reasons were assigned by the
respondents except the aforesaid infirmity,
which has been alleged to suggest that at any
point of time any extraneous considerations
were there in the matter or the petitioners did
not have the minimum eligibility for giving
an appointment. Even no full fledged enquiry
has been initiated in the matter. It is not the
case of the respondents that the infirmities
were so widespread and interwoven that it
was impossible to segregate the tainted and
untainted despite of conscious and bonafide
efforts. A bare perusal of the record, it is
apparent that in the present matter, no sincere
efforts were made to find out whether the
entire selection process was unfair, not
transparent and was not held in accordance
with law. It is not the case of the respondents
that there were large scale and pervasive
irregularities and illegalities in the matter and
as such the respondents had decided as a
policy matter to cancel the entire selection
process. In pursuance of the advertisement,
large scale of candidates had participated and
finally the petitioners were selected, even in
such situation the individual notices were
3 All] Dilip Kumar Shukla & Ors. Vs. State of U.P. & Ors.
1399
also required to be issued to the petitioners
prior
to
the
cancellation
of
their
appointments.
23.
Learned Standing Counsel has
placed reliance on the judgements reported in
AIR
1970
SC
1269,
Bihar
School
Examination Board Vs. Subhas Chandra and
others, 1992 AIR SC 952, Karnataka Public
Services Commission Vs. B.M. Vijay
Shankar, AIR 1994 SC 2166, Krishana Yadav
Vs. State of U.P. and others, AIR 2001 SC
2196, Union of India Vs. Tarun Kumar Singh
& others, 2002 AIR SC, 1119, Union of India
Vs. O. Chakradhar, (2005) 6 SCC 149, State
of A.P. Vs. V.T. Sury Chandra Rao and AIR
2006 SC 2571 Inderpreet Singh Kahlon Vs.
State of Punjab and others.
24. A bare perusal of these judgements
reveal that in cases where the entire selection
was found to be vitiated/tainted and was
cancelled, in such cases, it was not necessary
to give individual notices. In cases where
majority of examinees had adopted unfair
means, the whole examination could be
cancelled, as the law laid down by Hon'ble
Supreme Court in Union of India v. O.
Chakradhar AIR 2002 SC 1119. Even in that
case no individual notice is required.
25. However, in the present case, the
Court is of the view that the respondents
could make every endeavour to scrutinize the
records and it was expected from the
respondents to provide an opportunity of
hearing to the affected persons. But in the
present matter, no detailed scrutiny has been
made and at no point of time any allegation
has been levelled against the petitioners that
they were found unfit, ineligible and
unsuitable for their appointment.
26. While passing the impugned
order, a reliance has been placed on the
judgment of this Court passed in Writ
Petition No.28398 of 2008, which no longer
survives. In view of the facts enumerated as
above in detail that all the eight petitioners of
the said writ petitions have been absorbed
against different Class-IV posts and the
absorption of such persons are made on
different posts other than the posts held by
the petitioners and as such, there was no
rational or justification for not making
payment of salary to the petitioners. It is also
apparent from the pleading that some
disciplinary action has been initiated against
Dr. Richa Gupta, the then District Inspector
of Schools, Sonebhadra but nothing has been
indicated either in the counter affidavit or by
learned Standing Counsel regarding the
outcome of the said disciplinary action
against the erring officer, whereas learned
counsel for the petitioner has vehemently
submitted that nothing has happened against
the said officer and at the cost of some
infirmity or illegality made by the then
District Inspector of Schools, Sonebhadra the
entire selection cannot be cancelled.
27.
In the matter, the marks were
awarded by all the three members separately.
The respondents have not brought on record
to indicate or suggest that there is any
provision of signing final select list by all the
members of the Selection Committee.
Neither at the time of enquiry nor in the
counter affidavit any irregularity or infirmity
has been indicated by the respondents to
suggest that the members of the Selection
Committee had not awarded the marks
independently. The final list was prepared by
the Appointing Authority based upon the
marks awarded by the Selection Committee
and as such it does not contravene any clause
of the Rules of 1985. While passing the
impugned order, nothing has been averred to
indicate that while finalising the select list by
the Chairman, the marks awarded by two
1400
 INDIAN LAW REPORTS ALLAHABAD SERIES
other members, have been manoeuvred or
marks have been increased or decreased and
as per her own whims and fancies the final
select list had been prepared.
28. In view of the above, the
impugned orders cannot sustain and are
hereby set aside. The writ petitions are
accordingly allowed. The petitioners are
entitled to be reinstated forthwith.
29. So far as Shri Dilip Kumar Shukla
(since deceased)-petitioner no.1 in Writ-A
No.59355 of 2012 is concerned, he has been
substituted by his wife Smt. Seema Devi by
order dated 6.10.2015 and at this stage there
is no occasion for reinstatement of
petitioner no.1, as such Smt. Seema Devi
wife of Shri Dilip Kumar Shukla will be
entitled for all the consequential benefits as
permissible in law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Writ-A No. 59582 of 2009
Moti Lal Nehru Medical College Teachers
Asso. Allahabad & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri G.K. Singh, Sri Chandreshwar Prasad,
Sri G.K. Malviya, Sri R.D. Tiwari, Sri V.K.
Singh.
Counsel for the Respondents:
C.S.C., Sri Ashok Khare, Sri C.S. Singh, Sri
Kapil Rathore, Sri R.K. Upadhya, Sri S.D.
Kautilya, Sri Siddharth Khare, Sri Vikas
Budhwar, Sri Yogesh Agarwal.
(A)Constitution of India, Art.-226-Writ
Petition-maintainability-petitioner
being
teacher governed by U.P. State Medical
College Teachers Service Rules 1990objecting induction of Doctors working on
deputation basis governed by Provincial
Medical Health Services Rules 2004-after
commencement
of
Central
Universitypetition by individual as well as on behalf
of
Association
(Registered)
during
pendency
of
writ
petition-whether
maintainable?-held-'Yes'.
Held: Para-12
So far as the issue of maintainability of the
present writ petition is concerned we may
record that the petitioner no.1 which was
an unregistered society has since been
registered during the pendency of writ
petition on 16.11.2009. The writ petition
as on date is on behalf of a registered
Association, and therefore, the objection of
Sri Khare is, therefore, more technical than
substantive in nature. We are further of
the opinion that both the Association as
well as the petitioner no.2 have every right
to see that persons who are not Members
of the Cadre of U.P. State Medical College
Teachers Rules, 1990 are not inducted
through back door into the said Cadre of
Teachers. They have locus to challenge the
action of the State Government which
leads to such illegal induction inasmuch as
every Member of the Cadre has a right to
ensure that the Cadre contains only those
persons who are legally appointed into the
Cadre and not strangers having no right to
enter the Cadre under the relevant service
rules. For all the said reasons, the first
objection raised on behalf of Sri Khare
stands rejected
(B) Constitution of India. Art.-226-Right of
Depunist-Explained Teacher working in
Swaroop
Rani
Medical
College
being
governed by Provincial Medical Serviceafter end of deputation period-could claim
their absorption as Associate Profession in
Central University Allahabad?-held-'No'-
reasons explained.
Held:Para-29