# Rajesh Kumar Yadav & others v. State of U.P. Dept of Irrigation and others

- **Citation:** (2009) 3 ILRA 945
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-09
- **Case number:** Civil Misc. Writ Petition No.14145 of 2008
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-yadav-others-v-state-of-u-p-dept-of-irrigation-and-others-41577
- **Pages:** 18

## Headnote

Sri M.C. Chaturvedi
Sri K.R. Singh
Sri Rajiv Sharma
Sri Govind Saxena
Sri M.C. Tripathi

Constitution
of
India-Article-226-
Cancellation of selection- selection for
the Post of Nalkoop Mistri finalized-
formal appointment letters was to be
issued-
superintending
engineer
by
impugned
order
cancelled
entire
selection without assigning any reason -
except recording the ward "inevitable
reason" in counter affidavit only reason
disclosed the complainant made by local
M.L.A.
As
well
as
unsuccessful
candidates- neither any enquiry held nor
any material produced before the court
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
justifying the cancellation held- wholly
erroneous,
arbitrary
without
justification-order quashed- direction for
appointment
of
selected
candidate
issued -within month.

Held: Para 20 & 40

Thus in view of aforesaid discussion,
there can be no scope for doubt to hold
that the impugned order dated 8.2.2008
passed
by
the
Respondent
No
4,
cancelling the selection and select list of
the
petitioners
dated
25.1.2008,
is
wholly erroneous, arbitrary and without
any justification. Except the complaint of
Member
of
Parliament
and
an
unsuccessful candidate upon which the
explanation from the Chairman/ Member
of Selection committee was asked for,
the Respondent No 4, or any other
authority had not held any imquiry in
respect of said complaint. No material
was collected to find out that the
allegations of complaint is correct and
true, so as to record its satisfaction that
selection in question was found to be so
tainted that entire selection is liable to
be cancelled. Therefore, in view of law
laid down by the Hon'ble Apex Court
referred herein before, in my considered
opinion
the
impugned
order
dated
8.2.2008 passed by the Respondent No 4
cannot be sustained, accordingly same is
hereby quashed.

In view of aforesaid discussion I am of
the considered opinion that the selection
in question is fair and proper and cannot
be held to be tainted by any malpractice
in the process of said selection so as to
enable the respondents to record his
satisfaction to cancel the said selection.
Accordingly, the respondents have no
justification to cancel the selection in
question and without the appointment of
selected candidate included in the select
list dated 25.01.2008. Since it is not in
dispute that the names of the petitioners
are
found
in
the
select
list
dated25.01.2008
as
approved
by
Superintending
Engineer,
Tube
Well,
Circle Basti contained in Annexure-3 to
the writ petion, and I have already
quashed the impugned order dated
08.02.2008 passed by respondent no.4
(Annexure-3
of
the
writ
petition),
therefore, the concerned respondent is
directed to offer appointments to the
petitioners on the post of Tube Well
Mistri within a period of one month from
the date of production of certified copy
of the order passed by this Court before
Superintending
Engineer,
Tube
Well,
Circle Basti.
Case law discussed:-
2009(2) ESC 1241, AIR 2001 SC.2196, (2001)
6 SCC 380, AIR 1984 SC 1271, AIR. 1989.SC.
1642, (1990) 2 UPLBEC 1174, AIR 2006
SC.2571, AIR 2001 SC 2196, (2001) 6 SCC

## Text

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3 All] Rajesh Kumar Yadav and others V. State of U.P. and another
945
the larger Bench for taking a decision on
two points alluded to herein-above.
Significantly in Hardeep Singh's case the
proceedings against Hardeep Singh were
not kept in abeyance till the consideration
of the matter by the larger Bench.

8. As I find a conflict of opinions
between two Judges' decisions, in my
view, the view preferred in Hardeep
Singh (supra) and in Rakesh and another
Vs. State of Haryana, SCC 248, wherein
it was observed that cross examination
was not material for summoning an
accused and all that was required to be
seen from the evidence was whether there
was sufficient material or evidence for the
Court to reach a conclusion that other
accused who was sought to be summoned,
was also involved in the commission of
the crime. Probability of conviction was
not required to be considered at this stage.

9. In my view, the later view is to be
preferred to the view taken in some
decisions
which
have
insisted
on
necessity
for
cross
examining
the
witnesses is for reaching a finding about
the probability of conviction before
summoning an accused.

10. In a Full Bench decision of this
Court in Ganga Saran Vs. Civil Judge
1991 (9) LCD 149, the Court held that
when there is a conflict of two co-equal
decisions of the Apex Court, which
cannot possibly be reconciled, then it is
not necessary to follow the later view, but
this Court is entitled to decide which of
the two views take the law more
accurately and elaborately.

11. In view of my preference to the
view taken in Hardeep Singh's case and
because even in the said decision the
proceedings against Vijay Preet Singh had
not been stayed until the larger Bench of
the Apex Court considered the matter, I
see no reason for issuing notice or
keeping the matter pending till the larger
Bench decides the issue in the Apex
Court.

12. I find no illegality in the
impugned
order,
the
revision
is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2009

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.14145 of 2008

Rajesh Kumar Yadav & others ...Petitioners
Versus
State of U.P. Dept of Irrigation and
others

...Respondents

Counsel for the Petitioners:
Sri D.S.P. Singh

Counsel for the Respondents:
Sri M.C. Chaturvedi
Sri K.R. Singh
Sri Rajiv Sharma
Sri Govind Saxena
Sri M.C. Tripathi

Constitution
of
India-Article-226-
Cancellation of selection- selection for
the Post of Nalkoop Mistri finalized-
formal appointment letters was to be
issued-
superintending
engineer
by
impugned
order
cancelled
entire
selection without assigning any reason -
except recording the ward "inevitable
reason" in counter affidavit only reason
disclosed the complainant made by local
M.L.A.
As
well
as
unsuccessful
candidates- neither any enquiry held nor
any material produced before the court
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
justifying the cancellation held- wholly
erroneous,
arbitrary
without
justification-order quashed- direction for
appointment
of
selected
candidate
issued -within month.

Held: Para 20 & 40

Thus in view of aforesaid discussion,
there can be no scope for doubt to hold
that the impugned order dated 8.2.2008
passed
by
the
Respondent
No
4,
cancelling the selection and select list of
the
petitioners
dated
25.1.2008,
is
wholly erroneous, arbitrary and without
any justification. Except the complaint of
Member
of
Parliament
and
an
unsuccessful candidate upon which the
explanation from the Chairman/ Member
of Selection committee was asked for,
the Respondent No 4, or any other
authority had not held any imquiry in
respect of said complaint. No material
was collected to find out that the
allegations of complaint is correct and
true, so as to record its satisfaction that
selection in question was found to be so
tainted that entire selection is liable to
be cancelled. Therefore, in view of law
laid down by the Hon'ble Apex Court
referred herein before, in my considered
opinion
the
impugned
order
dated
8.2.2008 passed by the Respondent No 4
cannot be sustained, accordingly same is
hereby quashed.

In view of aforesaid discussion I am of
the considered opinion that the selection
in question is fair and proper and cannot
be held to be tainted by any malpractice
in the process of said selection so as to
enable the respondents to record his
satisfaction to cancel the said selection.
Accordingly, the respondents have no
justification to cancel the selection in
question and without the appointment of
selected candidate included in the select
list dated 25.01.2008. Since it is not in
dispute that the names of the petitioners
are
found
in
the
select
list
dated25.01.2008
as
approved
by
Superintending
Engineer,
Tube
Well,
Circle Basti contained in Annexure-3 to
the writ petion, and I have already
quashed the impugned order dated
08.02.2008 passed by respondent no.4
(Annexure-3
of
the
writ
petition),
therefore, the concerned respondent is
directed to offer appointments to the
petitioners on the post of Tube Well
Mistri within a period of one month from
the date of production of certified copy
of the order passed by this Court before
Superintending
Engineer,
Tube
Well,
Circle Basti.
Case law discussed:-
2009(2) ESC 1241, AIR 2001 SC.2196, (2001)
6 SCC 380, AIR 1984 SC 1271, AIR. 1989.SC.
1642, (1990) 2 UPLBEC 1174, AIR 2006
SC.2571, AIR 2001 SC 2196, (2001) 6 SCC
380.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

By this petition, the petitioners have
challenged the order dated 8.2.2008
(Annexure-4 of the writ petition) passed
by Superintending Engineer, Nalkoop
Mandal Basti (respondent no.4), whereby
selection dated 25.1.2008 on the post of
Nalkoop Mistri against backlog vacancies
of Group C posts was cancelled.

2. The brief facts leading to the case
are that initially backlog vacancies of
Group C posts of Nalkoop Mistry of Basti
Tube well Circle were advertised on
13.8.2007. In pursuance of which the
Selection Committee had held interview
on 17.11.2007 and 18.11.2007 but the
aforesaid selection was cancelled on
20.11.2007
by
the
Superintending
Engineer Tube well Circle, Basti. On the
same day the aforesaid backlog vacancies
were again advertised and the petitioners
were
selected
by
the
Selection
Committee. The select list was approved
by competent authority respondent no.4
himself. Thereafter he had sent the said
select list vide office order dated
25.1.2008 for joining the petitioners on
3 All] Rajesh Kumar Yadav and others V. State of U.P. and another
947
the posts shown in the select list against
their names to the office of Executive
Engineer, Nalkoop Division, Basti. The
advertisement
dated
20.11.2007
and
office order dated 25.1.2008 containing
the names of the selected candidates sent
to the office of Executive Engineer,
Nalkoop Division, Basti are on record as
Annexures-2 and 3 of the writ petition.
However, before appointment letters were
issued by the respondent no.5 to the
petitioners in pursuance of direction of
Superintending
Engineer
dated
25th
January, 2008, he himself has cancelled
the said selection and select list dated
25.1.2008 without disclosing any reason
therefor merely stating therein that the
selection has been cancelled for inevitable
reasons. The order of respondent no.4
dated 8th February, 2008 is on record as
Annexure-4 of the writ petition. Feeling
aggrieved against which the petitioners
have filed the instant writ petition.

3. Heard Sri D.S.P. Singh, learned
counsel for the petitioners and Sri K.R.
Singh, learned standing counsel for the
respondents.

4.

Learned
counsel
for
the
petitioners has submitted that since the
impugned order passed by the respondent
no.4 does not disclose any reason
therefore, hence in given facts and
circumstances of the case the impugned
order is wholly arbitrary, illegal and is not
sustainable in the eye of law. Further
submission of the learned counsel for
petitioners is that once the selection of
Nalkoop Mistry was approved by the
Respondent No.4 himself vide office
order dated 25.1.2008 and he himself had
directed
the
Executive
Engineer
respondent no.5 to issue appointment
letters to the selected candidates/ the
petitioners,
in
that
eventutility
the
Respondent no.4 himself could not cancel
the said selection without any material on
record and with out any justification
therefor but from the perusal of counter
affidavits filed by the respondents it is
clear that there was no material before the
respondent no.4 on the basis of which he
could arrive at a such conclusion which
could justify the cancellation of said
selection. The mere complaint of Member
of Parliament and any unsuccessful
candidate that the selection was vitiated
on account of mal-practice in said
selection without any material in support
thereof and without any inquiry thereon to
substantiate the said complaints the
selection in question and pursuant select
list could not be cancelled.

5. Besides this, learned counsel for
the petitioners has further submitted that
the irregularity pointed out by the
respondents that the selection was held in
violation of certain rules of recruitment
cannot be held to be sufficient ground for
vitiating the entire selection unless on
account of violation of alleged rules of
recruitment the selection in question is
otherwise found to be tainted by any
malpractice. In support of his aforesaid
submissions he has placed reliance upon a
decision of this Court rendered in Ram
Prakash Singh and others Vs. State of
U.P. and others reported in 2009 (2)
ESC 1241 and other decisions of Hon'ble
Apex Court which would be referred
hereinafter.

6. In justification of impugned
action taken by the respondents against
the petitioners learned standing counsel
has placed reliance upon the assertions
made in three counter affidavits filed in
the writ petition. The details of which
948 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
shall given hereinafter at relevant places.
Besides this, learned standing counsel has
also placed reliance upon two decisions of
Hon'ble Apex Court rendered in Union of
India and others Vs. Tarun K. Singh and
others AIR 2001 SC 2196 and in All
India SC & ST Employees' Association
and another Vs. A Arthur Jeen and
others (2001) 6 SCC 380.

7. On the basis of rival submissions
of learned counsel for the parties, the first
question which requires consideration of
this Court is that as to whether the
impugned order dated 8.2.2008 passed by
Superintending Engineer respondent no.4
cancelling the selection in question is
arbitrary for want of reasons? From the
perusal of order dated 8.2.2008 (contained
in Annexure-4 of the writ petition) passed
by Superintending Engineer, Nalkoop
Mandal Basti, it is clear that the impugned
order does not disclose any reason
therefor. It has merely stated that the
approved select list dated 25.1.2008 is
cancelled with immediate effect for
inevitable reason. What was actual
reason, is not communicated or disclosed
in the impugned order.

8. In this connection, a reference can
be made to a decision of Hon'ble Apex
Court rendered in Liberty Oil Mills and
others Vs. Union of India and others,
AIR 1984 S.C. 1271, wherein while
dealing with the provision of Imports and
Exports (Control) Act and (Control)
Order, it has been held that where the
decision may be taken without assigning
any reason, it does not mean that reason
for decision is not necessary, it merely
implies that the decision has to be
communicated but the reasons for such
decision have not to be stated. The
expression 'without assigning any reason'
only means that there is no obligation to
formulate the reasons and nothing more.
Reason of course must exist for decision,
otherwise the decision would be arbitrary.
For
ready
reference
it
would
be
appropriate to extract the relevant portion
of the observation made by Hon'ble Apex
Court in para 22 of the decision as under:-

22. "The expression "without assigning
any reason" implies that the decision has
to be communicated, but reasons, for the
decision have not to be stated. Reasons of
course, must exist for the decision since
the decision may only be taken if the
authority is satisfied that the grant of
licence or allotment of imported goods
will not be in the public interest. We must
make it clear that 'without assigning
reasons' only means that there is no
obligation to formulate reasons and
nothing more. Formal reasons may lead
to complications when the matter is still
under investigation. So the authority may
not give formal reasons, but the skeletal
allegations must be mentioned in order to
provide an opportunity to the person
affected make his representation. Chapter
and verse need not be quoted. Details may
not mentioned and an outline of the
allegation should be sufficient."

9. In M/s. Dwarkadas Marfatia and
Sons Vs. Board of Trustees of the Port of
Bombay, AIR 1989 S.C. 1642, the
Hon'ble Apex Court observed that every
action of the executive authority must be
subject to rule of law and must be
informed by reason so whatever be the
activity of public authority, it should meet
the test of Article 14. Where there is
arbitrariness in State action, Article 14
springs in and judicial review strikes such
an action down. The pertinent observation
3 All] Rajesh Kumar Yadav and others V. State of U.P. and another
949
made in para 25 of the decision is
extracted as under:-

25. "Where there is arbitrariness in State
action, Article 14 springs in and judicial
review strikes such an action down. Every
action of the Executive authority must be
subject to rule of law and must be
informed by reason. So, whatever be the
activity of the public authority, it should
meet the test of Article 14."

10. The aforesaid decisions have
been reiterated and followed by Hon'ble
Apex
Court
in
Kumari
Shrilekha,
Vidyarthi etc. etc. Vs. State of U.P. And
others, (1990) 2 UPLBEC 1174. The
pertinent observation made in para 13 and
para 30 of the said decision are extracted
as under:-

"13.. . ...However, 'without assigning
any cause' is not to be equated with '
without existence of any cause'. It merely
means
that
the
reason
for
which
termination is made need not to be
assigned
or
communicated
to
the
appointee. It was held in Liberty Oil Mills
and others Vs. Union of India and
others, (1984) 3 SCC 464 that the
expression'
without
assigning
any
reason' implies that the decision has to
be communicated, but reasons for the
decision have not to be stated, but the
reasons
must
exist,
otherwise,
the
decision would be arbitrary."
30. In M/s Dwarkadas and Marfatia
Sons Vs. Board of Trustees of the Port of
Bombay, (1989) 3 SCC 293, the matter
was re-examined in relation to an
instrumentality
of
the
State
for
applicability of Article 14 to all its
actions. Referring to the earlier decisions
of this Court and examining the argument
for applicability of Article 14, even in
contractual
matters,
Sabyasachi
Mukherji,J.(as the learned Chief Justice
then was), speaking for himself and
Kania,J., reiterated that 'every action of
the State or an instrumentality of the State
must be informed by reason. . . . . actions
uninformed by reason may be questioned
as arbitrary in proceedings under Article
226 or Article 32 of the Constitution.' The
basic requirement of Article 14 is fairness
in action by the State and we find it
difficult to accept that the State can be
permitted to act otherwise in any field of
its activity, irrespective of the nature of its
function, when it has the uppermost duty
to be governed by the rule of law. Nonarbitrariness, in substance, is only fair
play in action. We have no doubt that this
obvious requirement must be satisfied by
every
action
of
the
State
or
its
instrumentality in order to satisfy the test
of validity."

11. From a close analysis of the
aforesaid decisions, it is clear that even if
the
authority
is
not
obliged
to
communicate the reasons for its decision
or the decision can be taken without
assigning any reason, it merely means that
there is no obligation to formulate the
reasons and nothing more, but the reasons
for decision must exist, otherwise, the
decision would be arbitrary. The basic
requirement of Article 14 is fairness in
action by State and State cannot be
permitted to act otherwise in any field of
its activity irrespective of the nature of its
function when it has the upper most duty
to be governed by the rule of law. The
non-arbitrariness in substance is only fair
play in action.

12. Now next question arises for
consideration is that as to whether there
exist sufficient material on the basis of
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
which the cancellation of aforesaid
selection can be justified. But before
probing such materials it necessary to
refer a decision of Hon'ble Apex Court,
rendered in Inderapreet Singh Kahlon
and others Vs State of Punjab and
others A.I.R. 2006 SC 2571, wherein en
mass cancellation of selection of Civil
Service Officers of Executive and Judicial
Branches on the ground of large scale
fraud in selection procedure at behest of
Chairman
of
State
Public
Service
Commission was under consideration. In
para 41 and 42 of the said decision
Hon'ble Apex Court held that before
termination of services of employees
whose
selection
was
tainted
the
compliance of three principles at the
hands of state was imperative. The pertain
observation made in para- 41 and 42 of
the decision are extracted as under:-

41."If the services of the appointees who
had put in few years of service were
terminated;
compliance
of
three
principles at the hands of the State was
imperative,
vis.,
to
establish
(1)
Satisfaction in regard to the sufficiency of
the materials collected so as to enable the
State to arrive at its satisfaction that the
selection
process
was
tainted;
(2)
determine the question that the illegalities
committed go to the root of the matter
which vitiate the entire selection process.
Such satisfaction as also the sufficiency of
materials were required to be gathered by
reason of a thorough investigation in a
fair and transparent manner; (3) Whether
the sufficient material present enabled the
State to arrive at satisfaction that officers
in mejority have been found to be part of
the fraudulent purpose or the system itself
was corrupt."

42."Once such findings were arrived
at,all appointments traceable to the
officers concerned could be cancelled."

13. In para 61 of the said decision,
the Hon'ble Apex Court, held that, when
the services of the employees are
terminated interalia on the ground that
they might have aided and abetted
corruption, and thus either for sake of
probity in governance or in public interest
there services should be terminated, the
court must satisfy itself that conditions
therefor exist. The court while setting
aside a selection may require the state to
establish that the process was so tainted
that entire selection process is liable to be
cancelled. The pertinent observations
made in this regard in para 61 of the
decision are as under:-

61.............But, when the services of the
employees are terminated interalia on the
ground that they might have aided and
abetted corruption and, thus, either for
the sake of probity in governance or in
public interest their services should be
terminated; the court must satisfy itself
that conditions therefor exist. The court
while setting aside a selection may
require the State to establish that the
process was so tainted that the entire
selection process is liable to be cancelled.

14. Now coming to the materials
placed by the respondents in justification
of the impugned action taken by the
respondent no. 4. Three counter affidavits
have been filed by the respondents in
pursuance of various directions given by
this Court. In the first counter affidavit
sworn on 24th April, 2008 filed by Rama
Shanker Gupta posted as Assistant
Engineer, Mechanical Tube well Division,
Basti the reasons for cancellation of the
3 All] Rajesh Kumar Yadav and others V. State of U.P. and another
951
aforesaid selection are given in paras 6, 7
and 10 of the counter affidavit as under:-

"6. That in reply to the contents of
paragraph nos. 4 & 5 of the writ petition
it is submitted that namely Sri Lal Mani
Prasad, Member of Parliament, District
Basti had made a complaint to the
Superintendent
Engineer,
Tube-well
Circle, Basti regarding serious malapractice in the selection process and
alleged that complete process was vitiated
on several accounts, thereafter Senior
Official has directed not to issue any
appointment letter in favour of the
selected candidates. Thereafter, due to
serious allegations the respondent no. 4
had cancelled the Selection Committee
and its selection process. Thereafter the
Chief
Engineer
vide
letter
dated
29.01.2008 had given clear cut direction
to the Superintendent Engineer not to
issue any appointment letter in favour of
the selected candidates. A photo copy of
the complaint dated 28.01.2008 made by
the Mr. Lal Mani Prasad, Member of
Parliament and letter dated 29.01.2008
issued by Chief Engineer are being filed
herewith and marked as Annexure No.
CA-1 & 2 to this affidavit.

7. That the contents of paragrah no. 6
of the writ petition are not admitted as
stated, hence vehemently denied. It is
further
submitted
that
the
serious
allegations had been leveled against the
said selection and its process. Thereafter
it had been found that namely Sri Angad
Prasad, Executive Engineer, Nalkoop
Division
Siddharth
Nagar
was
a
Chairman of the Selection Process and
other members namely Sri Sohan RamExecutive Engineer, Sri Virendra SinghExecutive Engineer and Sri Shiv Shankar
Gupta Sub Divisional Magistrate, Sadar
District Basti and Sri Vishwanath Gupta
Executive Engineer were other members
of the Selection Committee. The interview
were taken place on 17.11.2007 and
18.11.2007,
after
completing
the
interview it had been found that the
Chairman of the Selection Committee had
breached the secrecy and without any
approval from the Competent Authority
had declared the result on the notice
board. The result of the said selection was
declared without any approval from the
Superintending Engineer Nalkoop Circle
Basti, the conduct of the Chairman was
against the rules and regulations. It is
pertinent to mention here that the
Appointing Authority is Superintending
Engineer, in this regard the departmental
enquiry has already been commenced,
therefore, under these circumstances the
alleged selection was cancelled by the
Competent Authority.

10. That the contents of paragraph no. 9
of the writ petition are not admitted hence
vehemently denied. It is submitted that the
whole process of selection was vitiated
and tented on various grounds and also
serious allegations had been levelled
against the Chairman and its members,
thereafter departmental enquiry has also
been initiated under these circumstances
the whole selection was cancelled. Under
these circumstances individual notice to
the petitioners were not required and
there is no violation of natural justice."

15. From a close analysis of
averments made in the said counteraffidavit and enclosures appended thereto,
it appears that averments contained in
para-7 of the counter-affidavit pertain to
the earlier selection in respect of which
interview was held on 17.11.2007 and
18.11.2007 which was cancelled on
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
20.11.2007. The aforesaid selection is not
in dispute, but respondents have tried to
mixed up the facts of earlier selection,
with the present selection which is subject
matter of the dispute. In respect of instant
selection, only this much is stated that Sri
Lal Mani prasad Member of Parliament
had made a serious complaint about the
selection to the Superintending Engineer
Tube-well circle Basti on 28.1.2008, the
copies of which were also endorsed to the
Chief Engineer Tube-well and Engineer
in Chief of irrigation department. On
receipt of said complaint, the Chief
Engineer, Tube-well wrote a letter to the
Superintending Engineer Tube-well circle
Basti on 29.1.2008, directing him, that
Executive
Engineers
of
concerned
divisions may be, directed not to appoint
selected candidates nor they be given
charge of the work until further, orders.
The aforesaid complaint and letter of
Chief Engineer are on record as Annexure
- CA-1 and CA-2 to the counter-affidavit.
Except the aforesaid complaint and the
letter of the Chief Engineer, no other
materials are placed on record. Therefore
after going through the aforesaid counteraffidavit on 1.8. 2008 this Court has
directed the respondents to bring on
record those materials on the basis of
which the approved select list dated
25.1.2008
was
cancelled.
Thereafter
another counter-affidavit sworn by Sri
Rakesh Sharma posted as Superintending
Engineer in the office of Chief Engineer
at Lucknow has been filed.

16. In the para 3,4,5,6 and 7 of the
said counter-affidavit, it is stated that
three
posts
of
Tube-well
machines
(Nalkoop mistri) were advertised in
various Newspapers on 20.11.2007, in
pursuance of which interview of all
eligible candidates was held by selection
committee on 23.1.2008 and 24.1.2008.
The selection was based on the marks
obtained in qualifying examination as
well as interview. The petitioners were
selected by the selection committee and
their
selection
was
approved
by
Respondent No 4. vide his order dated
25.1.2008.
However
before
the
appointment letter could be issued to the
selected
candidates/
petitioners,
the
Respondent No 4 received very strong
complaint from Sri Lal Mani Prasad
Member of Parliament stating therein that
the
earlier
selection
(
which
was
cancelled) has been restored by the
Chairman/
Member
of
Selection
Committee by taking heavy amount of
gratification
consequently
the
Chief
Engineer vide his letter dated 29.1.2008
directed the Respondent No 4 not to issue
appointment letters to the petitioners and
not to permit them to join.

17. In Para 8 to11 of the said counter
affidavit it is further stated that apart from
complaint
made
by
Member
of
Parliament, there have been complaints
from many other candidates levelling the
same allegation against the selection in
question. A true copy of one such
complaint is enclosed as Annexure -1 of
the said affidavit. It is stated that the
Respondent No 4 immediately made an
inquiry to fortify the allegations levelled
in the letter of Member of Parliament by
writing a letter to him on 31.1.2008,
requesting him to submit the evidence in
support of allegations levelled against
Chairman and Member of Selection
Committee. A true copy of the said letter
dated 31.1.2008 has been filed as
Annexure-2 of the said affidavit. Not only
this but the Respondent No 4, has also
sought explanation from the Chairman of
the Selection committee namely Sri
3 All] Rajesh Kumar Yadav and others V. State of U.P. and another
953
Sohan Ram Executive Engineer vide his
letter dated 31.1.2008 in respect of
allegation levelled by the Member of
Parliament. A true copy of said letter
dated 31.1.2008 has been enclosed as
Annexure- 3 of the said counter- affidavit.
It is stated that when no explanation was
submitted by the Chairman of the
Selection committee, the Respondent No
4, wrote another letter on 5.2.2008 asking
him to submit his explanation by 7.2.2008
so that superior officers may be apprised
in this regard. A copy of said letter has
been enclosed as Annexure -CA 4 of the
said counter-affidavit.

18. In Para 12,13 and 14 of the said
counter-affidavit it is further sated that in
the inquiry the Respondent No.4, found
the
allegations
levelled
against
the
Chairman and Member of Selection
Committee to be prima facie correct, and
as such he had no option but to cancel the
said
selection.
It
is
stated
that
departmental
proceeding
have
been
initiated against the erring members of the
Selection committee to take appropriate
action against them. For ready reference
the averments made in para 12,13 and 14
of the said counter-affidavit are extracted
as under:-

12. That in the inquiry, the Respondent
No. 4 found the allegations leveled
against the Chairman/Members of the
Selection Committee to be prima-facie
correct and as such he had no option but
to
cancel
the
appointment
with
immediately affect the Respondent No. 4.
13. That the Respondent No. 4 has
cancelled the Selection in order to ensure
fair selection in future and to prevent
repetition of such activities.
14. That the Departmental Proceedings
have been initiated against the erring
Members/Chairman
of
the
Selection
Committee in order to take appropriate
action against them."

19. From the perusal of averments
contained in and materials placed through,
the aforesaid counter-affidavit, only this
much is clear that on receipt of the
complaint about the selection in question,
the Respondent No 4 had written letter to
the complainant Sri Lal Mani Prasad,
M.P. to adduce his evidence in support, of
the allegation levelled in the complaint
and
also
sought
explanation
from
Chairman of the Selection Committee
namely Sohan Ram Executive Engineer.
There
is
nothing
to
indicate
that
complainant Sri Lal Mani Prasad and/ or
any other such complainant has adduced
any evidence before Respondent No 4 or
before any other Inquiry Officer in
support of of the allegations contained in
the said complaint. Apart from it no
material has been brought on record to
show that Respondent No 4 and/ or any
other officer had held any inquiry in
respect of allegation levelled against said
selection. There is nothing on record to
show that allegations levelled against
Chariman and Member of Selection
committee, are found prima facie, correct.
No finding of any sort of inquiry is
brought on record through the aforesaid
counter-affidavit, so as to enable the
court, to know on the basis of which such
conclusion was drawn by the Respondent
No 4, therefore, in my considered opinion
mere allegation in the said affidavit
cannot take the place of proof. Further no
material has been brought on record to
show initiation of any departmental
proceeding against Chairman /Member of
Selection Committee
as such
mere
allegation in this regard cannot take the
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
place of proof as it is well settled
principle of law.

20. Thus in view of aforesaid
discussion, there can be no scope for
doubt to hold that the impugned order
dated 8.2.2008 passed by the Respondent
No 4, cancelling the selection and select
list of the petitioners dated 25.1.2008, is
wholly erroneous, arbitrary and without
any justification. Except the complaint of
Member
of
Parliament
and
an
unsuccessful candidate upon which the
explanation from the Chairman/ Member
of Selection Committee was asked for, the
Respondent No 4, or any other authority
had not held any inquiry in respect of said
complaint. No material was collected to
find out that the allegations of complaint
is correct and true, so as to record its
satisfaction that selection in question was
found to be so tainted that entire selection
is liable to be cancelled. Therefore, in
view of law laid down by the Hon'ble
Apex Court referred herein before, in my
considered opinion the impugned order
dated 8.2.2008 passed by the Respondent
No 4 cannot be sustained, accordingly
same is hereby quashed.

21. At this juncture, before further
proceeding with the case, it is necessary
point out that in aforestated situation after
quashing the impugned order ordinarily
this court does not issue writ of
mandamus or direction to the authorities
to offer appointment to the selected
candidates unless the selection is found to
be fair and proper, but instead of leaving
matter with the authorities to hold fresh
inquiry in a fair and transparent manner
that as to whether the selection is fair or is
tainted by any malpractice and take
appropriate decision thereon, in order to
avoid further litigation, and leaving the
selected candidates for running pillar to
post, this court has directed the authorities
to bring the materials on record, even if
such inquiry is held subsequently, after
cancelling the said selection, and file the
same on affidavit, by keeping the petition
pending
consequently
another
supplementary counter-affidavit sworn on
3.7.2009 has been filed, by Sri Rama
Shanker Gupta Assistant Engineer.

22. The averments made in para 2 to
6 of the said supplementary counter
affidavit are extracted as under:-
"2- ;g fd izkjfEHkd tkap esa uydwi feL=h p;u izfdz;k esa
fu;ekoyh dk mYya?ku gksuk ik;k x;k gS vr,o p;u
lfefr ,oa p;ulwph dk fujLrhdj.k mfpr gSA

3- ;g fd p;u izfdz;k ds nks"kiw.kZ ,oa fu;ekas ds mYya?ku
ds fy, nks"kh vf/kdkjh iz'kklfud Lrj 1⁄4xzqi&,1⁄2 ds gSa vr,o
vafre tkap 'kklu dks vuqeksnukFkZ Jh v:.k dqekj] eq[;
vfHk;Urk 1⁄4Lrj&11⁄2 fl0 1⁄4;kaf=d1⁄2 foHkkx }kjk izLrqr dh
tkuh gSA

4- ;g fd cSdykx ds vUrxZr uydwi [k.M&cLrh esa
uydwi feL=h in ij dh x;h HkrhZ izfdz;k esa vfu;ferrk ds
lEcU/k esa ofj''B LVkQ vf/kdkjh 1⁄4uydwi1⁄2 flapkbZ foHkkx]
m0iz0 ds v0 'kk0 i=kad 4753@ uydwi@ fukad 2506-2009 }kjk v/kh{k.k vfHk;Urk uydwi e.My] cLrh
dks oLrqfLFkfr Li"V djrs gq, izfr'kiFki= nkf[ky djus gsrq
funsZf'kr fd;k x;k gSA i= fnukad 25-06-2009 dh
Nk;kizfr ekuuh; U;k;ky; ds voyksdukFkZ bl vuqiwjd
izfr'kiFki= ds lkFk layXu ,l0lh0,0&1 ds :i esa layXu
dh tk jgh gSA

5- ;g fd lUnfHkZr izdj.k esa eq[; vfHk;Urk 1⁄4;akf=d1⁄2 Lrj
ij&1] flapkbZ foHkkx] m0iz0 y[kuÅ ds i=kad 3403@
uydwi@cSdykx@fnukad 01-05-2008 }kjk f'kdk;rdrkZ
Jh fot; dqekj 'kekZ 1⁄4vH;FkhZ1⁄2 ,oa Jh ykyef.k izlkn
lkaln ds f'kdk;rh i= ij vk[;k ekaxh x;h gSA i= fnukad
01-05-2008 dh Nk;kizfr ekuuh; U;k;ky; ds
voyksdukFkZ bl vuqiwjd izfr'kiFki= ds lkFk layXud
,l0lh0,0&2 ds :i esa layXu dh tk jgh gSA
3 All] Rajesh Kumar Yadav and others V. State of U.P. and another
955
6- ;g fd v/kh{k.k vfHk;Urk] uydwi e.My] cLrh ds
v0'kk0i=kad 4738@u0e0c0@ tkap fnukad 20-052009 }kjk foUnqokj lwpuk eq[; vfHk;Urk uydwi iwoZ
QStkckn ds ek/;e ls Hksth x;h gS ,oa izfrfyfi ofj''B
LVkQ vf/kdkjh 1⁄4uydwi1⁄2 dk;kZy; izeq[k vfHk;Urk flapkbZ
foHkkx m0iz0 y[kuÅ dks nh x;h gSA izdj.k esa fu.kZ;
v|ru fLFkfr esa visf{kr gSA i= fnukad 20-05-2009
dh Nk;kizfr ekuuh; U;k;ky; ds voyksdukFkZ bl vuqiwjd
izfr'kiFki= ds lkFk layXud ,l0lh0,0&3 ds :i es
layXu dh tk jgh gSA"

23. From the perusal of abovenoted
supplementary
counter-affidavit
and
enclosures attached therewith, it appears
that after cancellation of selection dated
25.1.2008 vide impugned order dated
8.2.2008, a preliminary inquiry was held
by the authorities wherein as transpires
from the records (Annexure-CA-2 to the
supplementary counter-affidavit) that Sri
D.C.
Agrawal
Chief
Engineer
(Mechanical) level -I poseted in the office
of
Engineer
in
Chief,
Irrigation
department vide his letter dated 1.5.2008
had directed the Chief Engineer (Tubewell) (East) Irrigation Department U.P.
Faizabad,
to
send
his
point-wise
comments, in respect of complaints of Sri
Vijai Kumar Sharma (candidate) and Sri
Lal mani Prasad Member of Parliament
regarding irregularities committed in
selection of Nalkoop Mistri, held by the
office of tube-well circle Basti. By the
aforesaid letter, point-wise comments/
reply of total six questions were sought
for. In compliance of the said direction,
the Superintending Engineer Tube-well
circle Basti, vide his report dated
20.5.2009 (as revealed from AnnexureCA-3 of the said supplementary counteraffidavit) has submitted his comments on
the aforesaid points to the Chief Engineer
tube-well (East) Irrigation Department
Faizabad which are dealt with herein
after.
24. While replying the question No
1, in respect of nomination of Chairman
and Members of the earlier selection
committee in new selection committee the
superintending Engineer Tube-well circle
Basti has stated that, in the earlier
selection committee. Sri Angad Prasad,
Executive Engineer, Tube-well Division,
Siddharth Nagar, was Chairman, and Sri
Sohan Ram, Executive Engineer (attached
with the Tube-well circle Basti), Sri
Virendra Singh, Executive Engineer,
Tube-well Division Basti, Sri Vishwanath
Gupta Executive Engineer Tube-well
Division Sant Kabir Nagar, and nominee
of the District Magistrate were Members.
Besides other things it is also stated that
Sri
Rakesh
Sharma,
the
then
Superintending Engineer, had written a
letter to the Chief Engineer on 22.11.2007
for fresh nomination of Chairman and
Member of new Selection Committee by
changing earlier Chairman and Members,
but finding no response, from, the Chief
Engineer, he himself, within his discretion
has nominated Chariman and Members of
Selection Committee by excluding Sri
Angad Prasad, Executive Engineer, Tubewell Division, Siddharth Nagar and Sri
Vishwanath Gupta, Executive Engineer.
Tube-well Division Sant Kabit Nagar.
who were nominated as Chairman and
Member in earlier Selection Committee.
In the new selection committee, Sri Sohan
Ram, Executive Engineer, who was
Member of earlier Selection Committee,
was nominated as Chairman and Sri
Virendra Singh who was member of
Earlier committee was again nominated as
Member of new Selection Committee
besides other new Members, It is also
stated that since no inquiry was pending
against
Sri
Sohan
Ram,
Executive
Engineer,
and
Sri
Virendra
Singh,
Executive Engineer, in respect of earlier
956 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
selection
which
was
cancelled
on
20.11.2007, therefore, aforesaid Chairman
and Member of the new Selection
Committee cannot be said to be tainted.

25. While making reply of question
No-2,
that
what
was
reason
for
cancellation of earlier selection held prior
to 23.1.2008 and 24.12008, it is stated
that earlier select list was published by Sri
Angad Prasad the then Chairman of the
Selection
Committee
without
prior
approval of the Superintending Engineer
Tube Well, Circle Basti and it was
cancelled on the ground that, it was found
tainted. Whereas in respect of reply of
question No-3 that as to whether the
money was demanded by the Selection
committee from the Selected candidates,
it is stated that there is no material on
record on the basis of which it can be held
that Selection Committee had demanded
any money from selected candidates.

26. However, while replying fourth
question that as to whether, selection
process was transparent, it is stated that
while interviewing the candidates the
provisions of Sub-Rule-4 (c) of Rule-5 of
Uttar Pradesh Procedure for Direct
Recruitment for Group-C Posts (Outside
the Purview of the Uttar Pradesh Public
Service Commission) (First Amendment)
Rules, 2003 notified and published on
21.6.2003 in extraordinary Gazette of
U.P. have been violated, therefore, Sri
Rakesh Sharma, the then Superintending
Engineer, has been found prima facie
guilty for violation of said rules. It is
stated that under aforesaid Rules, it is
provided that the marks secured by the
candidates under Sub-Rule-3 (a), (b) and (
c) of Rule-5 of rules in question shall not
be disclosed to the Chairman and
Members of the Selection Committee at
the time of interview, but from the perusal
of broad-sheet, prepared at the time of
interview, it appears that the marks
obtained by the candidates under the
aforesaid
provisions
of
rules
were
disclosed to the Chairman and Members
of the Selection Committee at the time of
interview, thus thereby the provisions of
the aforesaid rules were violated.

27.