JUDGMENT
Sudhir Kumar Katriar, J.
1. 151 petitioners have joined this writ petition challenging the order bearing Memo No. K/Kara-v0fu0
5/98-1178/x`0l0Qks] Patna, dated 21.8.2000 (Annexure-20), passed by the Home Commissioner, Government of Bihar, whereby he has held that the selection process for appointment of Jail Wardens for the Bhagalpur Central Jail, Bhagalpur, is bad in law, thereby setting at naught their appointments including the present petitioners.
2. The basic facts needed for the disposal of this writ petition are not in controversy. The respondent authorities had published an advertisement which had appeared in the two leading daily newspapers, namely, Hindustan and Aaj on 5.10.1994 (Annexure-1), inviting applications for appointment to the posts of Jail Wardens to be posted in different jails in Bihar. The present writ petition relates to the appointments for the Central Jail, Bhagalpur, for which 157 appointments were to be made. The advertisement stated the various requirements and qualifications for eligibility, for example, height, weight, chest, age, etc. The appointment was to be done by the Superintendent of Jail under the supervision of the Inspector General of Prisons. A Selection Committee had to be comprised of the senior most Jail Superintendent of the circle, the senior-most Jail doctor, one Scheduled Caste/Scheduled Tribe Superintendent of Jail and a Psychologist, and the last two members were to be nominated by the Inspector General of Prisons. The physical verification was to be done at Bhagalpur between 27.12.1997 to 29.12.1997, but was later on decided to be held after 15.3.1998, on account of the Parliamentary Elections. The venue thereafter shifted at a short notice to the B.S.F. ground, Meru Camp, Hazaribagh, to be held from 23.3.1998 to 25.3.1998. After completion of the selection process, a select list of 198 candidates was prepared in order of merit. Appointment letters were issued to 157 candidates which included all the present petitioners who were directed to join within a period of fifteen days. Photo copies of some of the appointment letters by way of sample are marked Annexure-14 to the writ petition. The petitioners joined after medical examination and were posted at Central Jail, Bhagalpur, and received salary for one and half months (May and June 1998), whereafter their salaries were stopped in pursuance of the order of the Commissioner of Bhagalpur Division, Bhagalpur. This was followed by the order dated 16.2.1999 (Annexure-15), from the Inspector General of Prisons to the Superintendent of Bhagalpur Central Jail, that the appointments of all the 157 Wardens were cancelled because of non-observance of the rules in the selection process.
3. The same was challenged by the present petitioners by preferring CWJC No. 1956 of 1999 Anil Kumar Sharma v. The State of Bihar and Ors., which was allowed by order dated 10.4.2000 (Annexure-16), whereby the said order dated 16.2.1999 (Annexure- 15) was quashed and the matter was remitted back to the concerned Departmental Secretary (the Home Commissioner) to examine the matter and pass orders in accordance with law and the observations made therein. The petitioners were not allowed to join leading to MJC No. 1879 of 2000 Sri Shankar Prasad and Ors. v. The State of Bihar and Ors., which was disposed of by order dated 8.8.2000 Annexure-17, wherein it was observed that”….As a result of quashing of petitioners’ termination order by the judgment in the earlier writ application, the petitioners’ joining has to be accepted by the concerned respondents….” which had to be done within two weeks. Operation of the fresh advertisement was also stayed until the decision of the Home Commissioner. He enquired into the matter and passed the impugned order.
4. The petitioners had in the meantime preferred MJC No. 3454 of 2000 Shankar Prasad and Ors. v. The State of Bihar and Ors. for non-compliance of the order passed in the aforesaid writ petition, and the contempt application was disposed of by order dated 12.4.2001 with the direction that”. They are warned to be more careful in future and they are directed to accept the petitioners’ joining on their respective posts to which they were appointed earlier within one week from today. It goes without saying that joining of the petitioners and their continuance on the post in question will depend upon further orders that may be passed by this Court in the present CWJC No. 8629 of 2000.” The petitioners claim that they were allowed to join on 18.4.2001 and are continuing as such. It is further relevant to state that the following interim order was passed on 8.9.2000 in the present writ petition :
…Until further order, the respondents will not issue any individual order of termination with regard to petitioners in pursuance of the order dated 21st August, 2000 (Annexure-20), if not yet issued. They will also not fill up the posts against which the petitioners were appointed….
5. While assailing the validity of the impugned action, learned counsel for the petitioners submitted that the selection process was unblemished, and the prescribed procedure was followed/The posts were advertised incorporating the terms and conditions of selection, was given wide publicity, names were also called for from the Employment Exchange, physical test was held, and the specialist as per the procedure was on the Board. He next submits that the most of the findings of the enquiry report are tentative and are to the effect that laHkkouk izrhr gksrh gS A suspicion cannot take the place of proof. As to the large number of rejected applications, it is submitted, the enquiry officer has not examined any one of them to find out whether or not those were rightly rejected. He lastly submitted that the petitioners have worked for some time, have acquired experience and should not be asked to leave even if there are some infirmities in the selection process.
6. The respondents have placed on record their counter- affidavit and have opposed the writ petition. The learned Government Counsel submits that the enquiry report (Annexure-20) has considered all materials and explanations in depth, and has on exhaustive consideration of the mater found all the allegations to be true except one.
7. I have perused the materials on record and considered the submissions of learned counsel for the parties. After the order of the High Court of 10.4.2000 (Annexure-16), the Home Commissioner issued show cause notices to all the 157 persons. He formulated seventeen allegations with respect to the selection process, considered the cause shown, perused the other materials before him, and recorded his findings with respect to each allegations which are as follows :
(i) The first allegation was that the posts had to be advertised in two newspapers, whereas it was advertised in one newspaper only. The Home Commissioner has found that the posts were really advertised in two newspapers.
(ii) The second allegation is that the senior-most Doctor or any other Doctor of the Circle was not included in the Selection Committee. It has been found that the senior most physician had already superannuated, and the second senior most doctor had been transferred. Dr. Subodh Narain was the Senior most Doctor of the Mandal Kara, Dumka, who was included in the Selection Committee and had participated in the selection process at Meru Camp Hazaribagh. It has been concluded that the selection process clearly stipulated that the senior most Doctor of the Circle had to be included in the Selection Committee, not having been included, was an irregular act.
(iii) The substance of allegation No. 3 is that, for the purpose of reading and writing work, the Circle Superintendent had to be assisted by a Jail Superintendent or a person of the rank of Kakshpal, but this job was entrusted to a Clerk. The Superintendent of the Selection Committee had submitted his explanation before the enquiry officer that the Karapal (Rama Shankar Mishra) was going to superannuate soon, was also unable to write and had, therefore, expressed disinclination to be associated with the work. Therefore, a faithful Clerk (Anand Kumar Sinha) was entrusted with the work. The Home Commissioner has concluded that action should have been taken against Karapal (Rama Shankar Mishra) for having refused to be associated with the work. Kakshpal of an adjoining jail within the jurisdiction of the Circle could have been entrusted with the work. It, therefore, causes suspicion that the work was purposely entrusted to a hand picked Clerk with selfish motive and was an irregular act.
(iv) The fourth charge is to the effect that the applications had to be registered and the signature of all the members recorded within two days of the last date. The applications were registered but the signatures of the members towards the end of the last entry, showing closure of this part of the process, was not recorded. Later on (on 13.7.1997) only one Member had put his signature. The signature of only M.M. Hassan, Jail Superintendent, is to be found in the Register recording the entries of the categories of general category, whereas the name of one Vishwanath Prasad is to be found on the other registers, and the senior-most Member of the Committee (Vishwanath Prasad) has recorded his signature closing the entries. The Chairman of the Committee had submitted before the Home Commissioner that Bhagwan Prasad Gupta, his predecessor, was suffering from Parkinsons disease and was unable to record his signature. He had further submitted that all the applications have been received before he (the Chairman) had joined the Bhagalpur Central Jail, and he never received any complaint in this connection. He, therefore, did not consider it to be a ground to cancel the work so started, and the department was constantly putting pressure to complete the selection process quickly. The Home Commissioner has, inter alia, concluded that the signatures of the members of the Selection Committee had to be receded within two days of the last date of the receipt of the applications, whereas the same was recorded two years after the last date, giving full scope to remove applications.
(v) As to the fifth charge, certain registers do not record signatures of the Superintendent of Jail, whereas the two remaining registers disclose his signature. He has, therefore, concluded that the applications mentioned in these two registers were received after the last date.
(vi) As to the sixth allegation, the prescribed procedure stipulated that separate marks had to be allotted for age, height, chest, educational qualification, weight and additional qualification and merit list ought to have been prepared category wise, bearing the signatures of the members of the Selection Committee and ought to have been displayed on the notice boards of the Bhagalpur Central Jail, the office of the District Magistrate, and the Employment Exchange for the benefit of interested persons. The Home Commissioner has found that the same was not forwarded to the District Magistrate, Bhagalpur, nor to the Employment Exchange or the Inspector General of Prisons The merit list was never prepared nor displayed. He has, therefore, concluded that this shows complete lack of transparency, violation of the prescribed procedure, and speaks of irregularities in the selection process.
(vii) The seventh charge is to the effect that 14679 applications were received, but only 2243 applications were found to be in order. No record has been maintained showing the reasons for rejection of those applications. The Home Commissioner has concluded that rejection of such an abnormally large number of applications without any record showing the reasons for their rejection was unjustified and raises serious doubts.
(viii) The eighth charge is to the effect that the list of the said 2243 candidates had to be published for the benefit of the general public by affixing the same on the notice board of the offices of the District Magistrate, Employment Exchange, and the Central Jail, Bhagalpur. The Home Commissioner has concluded that this was not done resulting in non-observance of the procedure, and lack of transparency raising serious doubts.
(ix) The substance of charge No. 9 is that in so far as the 2243 applications are concerned, the same were not provided with serial numbers in the registers, and were provided only to the 559 applications called for the race test. The Home Commissioner has concluded that this shows complete absence of transparency and had given full scope for irregularities.
(x) Charge NO. 10 is to the effect that candidates to the extent of four times the vacancies had to be called for physical test, i.e., 628 candidates had to be called. According to the relevant register, only 559 candidates were informed by Post card to be present at Meru Camp, Hazaribagh. The post card did not mention the date of their appearance. The dates were later on changed to 23rd March to 25th March 1998. Only 259 candidates had appeared. The Home Commissioner has concluded that the procedure adopted to inform the 559 candidates was full of irregularities. The change of dates was not properly notified resulting in appearance of 259 candidates out of 559 candidates.
(xi) As to charge No. 11, the entire list of the candidates who were called for the physical test was not made over to the person in-charge of the same. The list made available to him shows the list of selected candidates only. The Home Commissioner has, therefore, concluded that the list of 259 candidates ought to have been made over to the persons conducting the physical test, the performance of each candidate ought to have been noted against their names, and the signatures of all the members ought to have been recorded. The list is only of the successful candidates. The list of unsuccessful candidates recording their performance was not maintained, e.g. who was able to run one mile in seven minutes or less or more. The Home Commissioner has, therefore, concluded that the selection process was irregular and unreliable.
(xii) As to charge No. 12, the roster system for reservation was erroneously followed. There were 572 vacant posts. The roster was prepared on the basis of 350 vacancies. The Home Commissioner has concluded that the roster was erroneously prepared, resulting in violation of the reservation policy.
(xiii) As per allegation No. 13, the Selection Committee ought to have been constituted before commencement of the selection process which was not done. The same was constituted after the last date of receipt of the applications. The Home Commissioner has concluded that this was essential because all the members of the Selection Committee had to sign the closure of the registers within two days of the last date of receipt of the applications. Failure to observe the same has resulted in a seriously defective selection process.
(xiv) As to allegation No. 14, the registers record that the minutes of the selection process was signed by Dr. Hardeo Ojha on 25.3.1998, and the remaining members on 26.3.1998. The Home Commissioner had found that the test had taken place on 23rd, 24th and 25th March, 1998, whereas the minutes had been written at at time and after conclusion of the tests. The Home Commissioner has concluded that this is a serious violation of the procedure giving scope to manipulations.
(xv) As to allegation No. 15, the Home Commissioner has concluded that the Superintendent of Bhagalpur Central Jail had shifted the venue for the race and physical test from Bhagalpur to Hazaribagh without obtaining prior permissions of the I.G. (Prisons), which was irregular.
(xvi) As to allegation No. 16, a number of cuttings and interpolations have been found in the proceedings. The Home Commissioner has concluded that the cuttings and the insertions are in different scripts and in different ink and some of which are not authenticated by any member, and a few others are authenticated by only one member. This has given scope to a lot of misuse and bunglings and has rendered the selection process unreliable.
(xvii) Charge No. 17 is to the effect that two successful candidates were related to the Jail Superintendent, and two other candidates were related to Anand Kumar Sinha, the Clerk. The Home Commissioner has concluded that the two functionaries did not inform the authorities that their relatives were also candidates, who should have on their own withdrawn from the selection process. This has also been adversely commented upon.
8. It appears to me that the Home Commissioner has gone into the depth of the matter, and has applied himself closely to the relevant materials. My own perception of the matter is as follows :
(i) The Home Commissioner has taken inconsistent view with respect to allegation Nos. 2 and 3. On the one hand, he has refused to uphold the inclusion of the Doctor of the Mandal Kara, Dumka, in a situation where the senior-most two Doctors of the Circle were not available, whereas he himself suggests with respect to allegation No. 3 that the work could have been taken from the Jail Superintendent or Karapal of an adjoining jail within the jurisdiction of the Circle. Secondly, it appears that the job expected to be done by the Jail Superintendent or Karapal did not involve any decision making and was to do the ministerial/clerical work of assisting the Chairman. Therefore, inclusion of a Clerk of an adjoining jail could not, in the given situation, Per se be irregular. However, inclusion of Anand Kumar Sinha became vulnerable for an altogether different reason which is the subject matter of allegation No. 17, an aspect of the matter separately dealt with. I would prefer to disagree with the conclusion with respect to charge No. 2. It was not a case that the senior most two doctors of the circle were available and one of them was not included in the Selection Committee. The correct position is that the physician of the adjoining Mandal Kara, Dumka (Subodh Narain), within the jurisdiction of the circle, was the senior most available physician within the jurisdiction of the Circle and was, therefore, rightly included in the Committee. In my view, this does not adversely affect the selection process.
(ii) I agree with the finding of the Home Commissioner in so far as his conclusion with respect to charge No. 4 is concerned. It is really shocking that the register showing receipt of the applications, which ought to have been closed within two days, was really closed after two years giving full scope to remove inconvenient applications, and include belated applications.
(iii) I agree with the finding of the Home Commissioner with respect to the 5th allegation. The combined effect of the fourth and the fifth charges is that applications could have been removed, or belated applications may have been included, obviously for extraneous considerations and ulterior motives.
(iv) I agree with the conclusion with respect to the sixth charge.
(v) I agree with the conclusion of the seventh charge.
(vi) I agree with the finding with respect to allegation No. 8. For the failure to publish the list of eligible candidates meant by necessary implication that ineligible candidates could not become aware of their elimination. Many of the applications must have been suffering from curable defects and reasonable time ought to have been granted to remove the defects, and could not have been rejected outright.
(vii) I agree with the findings with respect to charge No. 9.
(viii) I agree with the finding with respect to charge No. 10.
(ix) I agree with the conclusion with respect to charge No. 11. The performance of all the participating 259 candidates ought to have been recorded and preserved. This has in one sense rendered the task of the superior authorities in the Government, as well as this Court in so far judicial review is concerned, extremely difficult, may be impossible. How can performance of an aggrieved unsuccessful candidate be compared with those of successful candidates.
(x) I would disagree with the conclusion of the Home Commissioner with respect to allegation No. 12. It is doubtful whether or not there were 572 vacancies or 350 vacancies. Secondly, this by itself does not reflect on the reliability or validity of the selection process. The roster was clearly followed, may or may not be after keeping in view the exact number of vacancies. The Home Commissioner has not found that the roster was not properly followed as per 350 vacancies.
(xi) I agree with the conclusion of the Home Commissioner in so far as allegation No. 13 is concerned. He is right in his conclusion that Selection Committee had to be constituted prior to commencement of the selection process otherwise an important condition like closing the receipt of the applications within two days of the last date could not have been carried out, and in fact was carried out two years late giving rise to scope for all kinds of irregular acts.
(xii) I agree with the conclusion of the Home Commissioner with respect to allegation No. 14. The Minutes of he proceedings should have been recorded at every stage and simultaneously authenticated by the members of the Selection Committee. The same was instead done after conclusion of the selection process and together giving scope to diverse manipulations.
(xiii) I agree with the conclusion of the Home Commissioner with respect to allegation No. 15 that the candidates were not adequately and properly informed of the change of venue of place and dates as a result of which a large number of candidates could not appear. I must state in all fairness to the persons responsible for the decision that the campus at Meru (Hazaribagh) belongs to the Border Security Force and this by itself may have almost eliminated chances of hooliganism or the like by the candidates. Therefore, the decision to change the venue was not by itself irregular nor for the reason that prior permission of the superiors was not obtained which may be administratively incorrect, but does not per ser render the selection process bad in law. Change of dates and the venue, situate at a long distance from Bhagalpur, has rendered the selection process completely defenceless because of the failure to propagate and inform the candidates, resulting in non-appearance of a large number of candidates.
(xiv) I agree with the conclusion with respect to allegation No. 16. The manner in which the entries have been interfered with or altered or interpolations made, render the results apocryphal.
(xv) In so far as allegation No. 17 is concerned, I would agree with the finding of the Home Commissioner that the two functionaries ought to have informed their superiors that their relatives are also candidates, and ought to have withdrawn from the selection process unless directed otherwise by the Superiors.
9. The Home Commissioner has summarised his enquiry report in paragraphs 14 and 15 of the impugned order and are set out hereinbelow for the facility of quick reference :
14- mi;qZä rF;ksa ds vkyksd
esa vkjksi la[;k 1 dks NksM+dj ckdh lHkh vkjksi izekf.kr gq, gSa A izekf.kr
vkjksiksa ds vuqlkj d{kiky ds in ij fu;qfä gsrq p;u dh iwjh izfØ;k
nks”kiw.kZ] vfu;fer] nwf”kr ,oa i{kikr iw.kZ gS A bl izfØ;k esa lafo/kku
ds vuqPNsn 14 ,oa 16 dk mYya?ku gqvk gS A vr% d{kiky ds in ij dh x;ha fooknxzLr
fu;qfä;ka fcYdqy vfu;fer] nwf”kr i{kikriw.kZ ,oa HksnHkkoiw.kZ gS A vr% bu
fu;qfä;ksa dks jn~n djus dk fu.kZ; fy;k tkrk gS A
15- bl iwjh izfØ;k esa p;u lfefr
ds v/;{k ,oa lnL;ksa dk vkpj.k Hkz”V ,oa lnkpkjiw.kZ gS A ;s fu;qfä;ka
futh LokFkZ dh iwfrZ ds fy, ,oa vkfFkZd ykHk ds fy, dh xbZ gS A bu vfu;fer
fu;qfä ds fy, fu;qfä inkf/kdkjh ,oa v/;{k] p;u lfefr Jh ‘;ke eksgu feJ]
rRdkyhu v/kh{kd] fo’ks”k dsUnzh; dkjk] Hkkxyiqj rFkk p;u lfefr ds vU; nks
lnL; rFkk Jh fo’oukFk izlkn rRdkyhu v/kh{kd] midkjk] ckWdk iw.kZr% nks”kh
gS A vr% muds fo:) foHkkxh; dkjZokbZ pykus dh vuq’kalk dh tkrh gS A p;u lfefr ds
rhljs lnL; flQZ euksoSKkfud fo’ks”kK Fks A vr% muds laca/k esa Hkkxyiqj
fo’ofo|ky; dks leqfpr dkjZokbZ dk vuqjks/k fd;k tk; A
10. The net result of the enquiry report is that out of the seventeen allegations, one has been found to be incorrect, and has found sixteen of them to be proved which has rendered the entire selection process wholly unreliable, and tainted with gross favouritism, nepotism, manipulations, violation of the procedure and corruption. I have expressed my reservation with respect to the findings relating to allegation Nos. 2 and 12, and agree with the remaining findings. In my view, the net result is that even if the findings with respect to allegation Nos. 2 and 12 are eliminated, the rest are cumulatively adequate, nay so overwhelming, that they render the entire selection process fit to be rejected. It appears to me that the Members of the Selection Committee had violated the terms and conditions of appointment and the established procedure outrageously and fearlessly, engaged themselves in gross acts of favouritism and corruption and acted with ulterior motives. The petitioners are the obvious beneficiaries to the purposive exclusion of those who ought to have been included within the zone of consideration who have had the fundamental right to be considered in accordance with law, and was part of a grand design mastermined by the members of the Selection Committee. Public employment in the country is a national wealth and every citizen should have unrestricted access to the same which was clearly denied to them. It is impossible to uphold such a grossly tainted selection process. The irresistible conclusion is that the impugned action has to be upheld.
11. The writ petition is dismissed. It goes without saying that the interim orders passed by this Court automatically stand vacated.