^ C/>'\s-f7 l^ IN THE fflGH COURT OF CHHATTISGARH AT BILASPUR W.P(S).N03^3 /09 PETITIONER ^•t /' v/s Dr. VIJAY KUMAR SAHU S/0 SI1RI PURAN LAL SAHU, AGE ABOUT 33, R/0 GRAM BASIN, P.0. BASW, TAH GURUR, DISTT. DURG (C.G.) RESPONDENTS (1) STATE OF CHHATTISGARH SECRETARY DEPARTMENT OF PANCHAYAT, D.K.S. BttA.WAN, RAIPUR(C.G.) (2) COLLECTOR, DURG (C.G.) (3) ZILA PANCHAYAT DURG, THROUGH ITS CfflEF EXECUTIVE OFFICER, DURG (C.G.) (4) JANPAD PANCHAYAT GUNDERDEHI, THROUGH ITS CmEF EXECUTIVE OFFICER, GUNDERDEm, DISTT. DURG (C.G.) (5) SHRI RAIE^P KUMAR SAHU, S/0 SHRI RAOlLAL SAHU, AGE ABOUT 26 YRS, R/0 ROAD N0 1- A-ZONE-1, BORSI ROAD, NEW ADARSHNAGAR, DURG (C.G.) (6) SHR[ SATYENDRA KUMAR SONI, R/0 SHRI SHAYAMLAL SONI, AGE ABOUT 30 YRS, R/0 WARD N0.10, DURGA CHOWK, SHANKAR NAGAR, DURG (C.G.) ^7) RAGHU LAL SAHU, S/0 NOT JCNOWN TO THE PETITIONER AGE NOT KNOWN TO THE PETITIONER, WOREJNG AS CLERK, JILA PANCHAYAT D^G, DISTT. DURG (C.G.) <^" WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF BSDIA FOR ISSUANCE OF WRIT BV THE NATURE OF MANDAMUS. CERTIORARI OR ANY OTHER SUITABLE WRIT J ff» '-^ .?-• ^ •^.• • w.i fiWWBrfBiWMeite! . O ) HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDR& MOHAN SHRTVASTAVA.J, Writ Petition (Sl No.3459/2009 PETITIONER RESPONDENTS Dr. Vijay Kuinar Sahu Versus State of CUiattisgarh & Ofhers ORDER POST ON ^ "JULY, 2010 »^ws^"t"° HIGH COURT OF CHHATTISGARH : BILASPUR SINGLB BBNCH : HON'BLB SHMMANINDR&^MOHAN SHRIVASTAVA.J. PETITIONBR RESPONDBNTS Writ Petition (81 No.3459/2009 Dr. Vijay Kuniar Sahu Versus State of Chbattisgarh & Ofhers Petition u/A^26 of_the Coastitutioa ofludia Appearance; Shri AIi Asgar, counsel for tbe petitioner. Smt. Smita Ghai, Paael Lawyer for the State/respondents No. 1 & 2. Shri M.P.S. Bhatia, counsel for respondents No. 3 8s 4. None for respondents No. 5 to 7, tiiough served. O R (Passed on V .07.2010) 1. Tbis petition has been filed bv the oetitioner claimiag foUowiuR reUefs;- "(A) To caU for fhe record for fhe perusal of fhis Hon'ble Court. (B) That tihis Hon'ble Court may kiadly issue a writ of certiorari quasliiag fhe impugiied order dated 28.5.2009 passed by respondent No.3 (Annexui-e P-8) aad also a writ of inandam.us directmg fhe respondentauthorities to appoiat the petitioner on fhe post of Assistaat Grade-3 at Janpad Pauchayat Gunderdehi, Distt. Dui^ or ia altemative, direction be issued to fhe respondent authorities to altot niarks ia an unbiased inanner as per the coinpaTative chart forwarded by Janpad Pauchayat which wffl be subject to this petition. ^" 'l*. v '•'. ^w^:. '3 iato^s. ;' That anv ofher reliefwhich fhis Coirrt thiaks fit in fiie iaterest ofiustice & eauitv" 2. Facts relevant and necessaiy for adjudication of controversy involved in this netition arc that Jaapad Paachavat. Gunderdehi issued an advertisement on 20th May, 2008 (AnnexiirR P-1) iavitiug appMcations for appoiatment to fhe post of Assistant Grade-III. According to the petitioner, ia all, 12 candidates iacluding fhe petitioaer applied for appoiatment by submittmg fheir applications. A Selection Committee was constituted ia accordance wifb. fhe dircctioa .issued bv fhe Stete Goverrunent on 14.3.2008, ia conipliaace ofrelevaat recruitment rulss nainely Chhattisgarh Paachayat Seva (Bharti Tatfaa Seva Ki Sainaaya Sharten) Niyam, 1999, and the mode aad mefhodology for allotinent of m.arks was also prescribed, as contaiaed in Auiiexure P-2. Upou scrutmy, as per the scheme ofappointment, a coiaparative chart ofaU fhe caudidates was prepared by Janpad Pancbayat, Guaderdehi aiid fonvarded to fhe Chief Executive Ofiicers, Jfla Paachayat, Durg vide covermg memo dated 30th Jiily, 2008 (Annexurc P-3). However.. later ori, fhe eatire process of selection was cancellcd, as disciosed iE iaformation given by Jiia Pauchayat, Duig to one Bhupat Singh Sahu vide letter dated 10.6.2009 (Aruiexure P-7), Upon enquiiy, ttie petitioner came to know fhat vide impugned order dated 28.5.2009 (Annexure P-8), the Chief Executive Officer, Jila Paachayat, Durg has canceUed the selection procedure and has directed to issue fresh advertiseiuent. 3. Assaiting the aforesaid action of non-appoiatment of the petitioner aad caaceBation of fhe entire process of selection vide impugned order. leamed coimsel for fhe petitioner subinits that fhe action of caiiceUing the process of selection is iilegal, arbitraiy. as also actuated by m.alafide. Subuussion of leanied counsel for fhe petitioner is fhat duruig fhe course of selectiou, aa attem.pt was inade to extend undue favour to respondent No.5 who happens to be son of a Clerk, working in Jfla Panchavat-Durg. However, later on, the said act of favoritisni was exposed. Finding that icspondent No.5 is not likely to be selected aad fhat petitioner is likely to succeed beiug m.ost ineritorious, fhe entire selection process was canceUed only to provide aaofh.er opportiuiity and roirud ofselection to respondent No.5. Learaed counsel for fhe petitioner argued that fhe reason assigned ia the impugned order dated 28.3.2009 (Annexure P-8) is clearly arbitrary and irrational and could not be inade a basis to caacel the process of selection. He contended tiiat the process of selectiou did not suffer from. aay such UTegularity or illegaMty so as to warrant cancellation of the eutire selection procedure. !n his subiaission, fhe selection procedure ought to be coiapleted and brought to its logical conclusion tov awanliag inarks to fhe petitioiier and other candidates who had applied, by applying the criteria of assessiaent, as laid down tn. Annexure P-2. He further submits that the reason assigned for caticeUation. of entire selection is contrarv to information supTiUed under Right to Infonnation Act and there.fore it has to be infen-ed that the inam operative reason. for canceUation of selectiou was that respondent No.5 could not succeed tn securing position, and therefore, fhe entire process was caaceUed wifh a view to re-start the fresh selection, ia fhe garto of reasons stated in the impugned order dated 28.5.2009. »AS.-ft -4-1 In support of his subniissions, leanied coiuisel for fhe petitioner rcUes upon the decision in the case of Munaa Roy Vs. Union of India & others, (2000J 9 SCC 283 . Per contra, submission of learned counsel for i^spondents No. 1 & 2/ State is fhat though the process of selection was iaitiated by issuius an advertiseinent dated 20th May, 2008, the process ofselection could uot be coiapleted for one year on account of application of 'inodel code of conduct' due to iatervenmg State Assembly & Lok Sabha Elections. Therefore, fhe process of selection was dropped and a decision was taken to mitiate fresh process of recruitment by invitta^ advertiseinent. It is furfher subinitted fhat fhe allotm.eat of inarks and fixation of criteria, as also preparation of aierit list was required to be done by fhe Selection Coinmittee of which fhe Chief Executive Officer, Jila Paachayat is fhe Chairmaa. It is further subiuitted that Jsnpad Panchayat, Gunderdehi did not prepare any m.erit tist and laerely forwarded a chart prepared by theia, in which, details of experience aud educational quali&cation of aU fhe 12 applicaats were raiidoiuly placed. The said chart was only intended to provide data based assistance to the Selection Conunittee. It is also submitted that fhe name of candidates placed in fhe chart prepared by Jaapad Paachavat. Giuiderdehi are not m order of merit aad it is nowhere stated fhat fhe same is select list based on assessment of merit by the dulv constituted Selection Coraimittee. Leamed couiisel for the respondents/Stete submitted that fhe petitioner had made baseless aUegation against respondent-officers without even impleaduig fhem in. fheir personal capacity. It is subiiiitted that the Selection ^\ Ai?i9&, :! ^-e^ -5- Committee comprised of several aufhorities wifh the Chief Executive Officer, Jila Panchayat as fhe Chairman of fhe Committee. The decision to cancel fhe selection procedure and restart the saiue has been taken bonafidely on vaUd, relevant and sufficient reason. It could not be said to be so arbitrary or irratioaal as to warrant inteiference by fhis Coiirt under Article 226 of fhe Constitutiou of India. Learaed counsel for fhe respondents/State further subautted that fhe allegation niade by the petitioner a.re h%hly iinprobable and inere f^ment of imagination, as it would be a farfetehed thing to presuiae that a Clerk of the Establishinent would be in a position to influence att fhe ruenibers of the Selection Conunittee and the Chief Executive OfScer so as to caacel the selectioa for the reason fhat fhe son of ftie Clerk is not likely to succeed. It is argued fhat there is no m.aterial basis to reach to such coaclusion aad the allegations are based on conjecture and sunnise. He further submitted fiiat sucli allegation could not be gone iato, nor aay enquiry could be inade uiiless the Chief Executive Officer and each aad eveiy nieiaber of the Selection Committee, on whom aUegatiou of malafide have been leveled are impleaded as party in personal capacity, wbich has not been done. 5. Leamed counsel for respondent No.3 subiaitted fhat the chart, which was prepared by the Janpad Panchayat, Gunderdehi, was not select ]ist. but onlv a data base for the assistance of the Selection Conunittee. It is subniitted fhat fhe Selection Coininittee coniprised of senior responsible State OfiSciats and fhe atlegation of malafide. is aa afterthought, based on no materiat whatsoever. It is subiaitted ftiat as more thaa one year had lapsed aad as the process of selection could not be completed due to operation of 'model code of conduct on '<•• \* -6- ^ A": ;<- account of Assembly and Lok Sabha Electiou, a bona&de decisioa was taken to drop fhe whole process of selection aad ioitiate fresh selection process for appoiatineat. It is further submitted fhat baseless aUegations have been leveled against fhe Chief Executive Officer aad the ineinber of Selection Conuiuttee, whicb have no basis. 6. Subniissioa of leanaed counsel for respondent No.4 is similar as subinitted by respondent No.3 addiag further that the Jaapad Paachayat, Gunderdehi was not aufhorized eifher to issue appoiatmeut orcler or even to preparc fhe select list. Only a chart was prepared for assistance of ttie Selection Coininittee aad forwarded to the Chief Executive Officer, Jfla Panchyat, Durg. It has been argued that fhe Janpad Panchayat did not prepare aay merit list, but simply prepared a chart contaming the naines of tiie candidates in a raadoia niaTiTier, and various allegation laade in the petition are oniy afterfhought. 7. From the pleadings made in fhe petition, it is fouad that the petitioner has assaUed fhe action ofJanpad Panchayat in preparmg chart on the assumption, though erroneous, that Jaupad Panchayat, Gunderdehi was entrusted with the function of preparation of inerit list after aUottuig marks as per prcscribed niode. Such aa assertion is contrar^' to petitioner's own pleadiug iii other part of the petition as also contraiy to tfae laid down procedure contamed in Aruiexure P-2 and the provision contamed in. Chhatdsgarh Panchayat Seva (Bharti Tatha Seva Ki Samanya Skarten) Niyam, 1999, as amended. The petitioner assailed fhat as fhe narae of respoadent No.5 was at the top of the chart prepared by Janpad Panchayat, it was aa attempt to provide undue favour to fhe said caadidate. A perusal of note sheet Annexure - 7 - ^(^ "\ P-6 shows fhat a select Ust was prepared by fhe Selection Coiniuittee ia which respondent No.5 was placed in fhe inerit Ust for the solitarv post ofAssistaut Grade-III mentioning fhat he obtamed 65.44 marks. In the said note sheet, fhe Chief Executive Officer, Janpad Panchayat, Gunderdehi recorded fhat - though he remained present on 11.9.2008 and also mei Chief Executive Officer, Jila Panchayat, Durg, but no meeting was orgcsnized and therefore he does not approve. This was foUowed by a detailed note by the Chief Executi.ve Officer, Janpad Panchayat, Guuderdehi. 8. From. the aforesaid niaterial placed on record what caa be reasonably iaferred is that though a select list was prepared in which icspondent No.5 was fouad fit for selectlon, the Chief Executive Officer, Gunderdebi did not approve sayiag fhat he did not participate aiid fhat n.0 aieeting was held aiid fhat thereafter. the said Ust was never published. There is no laaterial on record to show fhat auy publication ofthe selection list took place. 9. Even if fhe arguiaent of leamed couiisel for fhe petitiouer fhat fhe petitioner was entitled to inore inarks and that respondent No.5 was awarded niarks inore thait that which he was entifled as per fhe criteria, in. the absence of aay other cogent aad niaterisl circuiustances, this Court is not incluied to come to fhe conclusion that the said decision of the Selection Comiuittee was actuated by mala&de. Neifh.er the Chief Executive Officer nor ofher meiiibers of fhe Selection ComTnittee have been itnpleaded as party ia fheir personnel capacity. Much higher degree of proof is required to establish aa allegation of malice ia fact and it could not be readfly iaferred from fhe mere fact that on note-sheet, a select Ust was prepared by 4 persons ..f..r-"at / £.% / ; of the selection coiuiiuttee, placing respondent No.5 in fhe said list by awardiug raarks to which he was not entifled. The allegation of the petitioner fhat a Clerk working ia Jila Paachayat was controltuig fhe Chief Execiitive OfBcer, Durg aad other ineiabers of Selection Conunittee, as also fhe Chief Executive Oflicer of Janpad Panchyat, Gunderdehi and other staff of fhat Janpad Panchayat, who were insta-umeatal ia preparing the chart fonvarded to Jila Panchayat, apart froni being unprobable, is bereft of any cogent and reUable inaterial aad established circuinstance to lead to fhe oidy conclusion of favoritisin. In the opiaion of this Court, fhe petitioner has failed to prove fhe aUegation of mala&de, keepiag ia view the degree of proof required to establish such allegation. Moreover, in the absence of impleadinent of aU those of&cers aad einployees, as party, tliis Court is not inclined to accept the subiaission ia tbat regard. Tbe reason assigned ia the impugned order for cauceUing the process of selection appears to be bonafide. The same caiuiot be said to be irrational or not at afl gennane reason for droppiag the process of selection. Merely because it woiild be a boon to unsuccessful caadidates and give fheni aaofher roimd of opportunity to compete for fhe post, ia fhe considered opiniou of this Court, it is aot sufficieut to coiue to fhe conclusion of arbitrariaess or irrationalily. Petitioner has not disputed fhat fhe reason assigaed that process of selection could not be coinpleted due to operation of 'inodel code of conduct' on account of iatervening State Assemblv Election aud Lok Sabha Election is factually iacorrect. In the absence of aay speci&c dispute raised wifh regard to those factual situation and circuinstaaces prevailmg, decision of canceUiug the selection process on account of fhe fact that it has remaiaed penduif -»ff- •^, fi ^^' v^ ' ^^.'y '^•^•^ - 9 " for niore than one year, does not appear to be so arbitraiy or outrageous as to warrant interference by fhis Court and direct respondent to coiuplete fhe process of selection earlier iuitiated by issuaace of advertiseineut dated 20.5.2008. Petitioner has no right to be appoiated merely on fhe ground fhat had the selection been proceeded, he would have stood as most ineritorious caadidate for appoiatinent to fhe post. Itcoiild not be said that the reason wbich weighed with fhe aufhorities to cancel the process of selectiou are not germane, by applyiag the principles laid down by the Supreine Court ia fhe case of Munna Roy (supra). 10. In the aforesaid case, select Ust was published, but no appointment letter was issued. Thereafter, no decision was comiaurdcated statmg the grounds of cancellation of fhe process of selection. Before tfae Court, the ground stated for cancellation of fhe list was that fhoiigh the ininimum quaUfication required was inatriculate, fbe selected caadidate was a graduate and fherefore dubious inefhod has been adopted for selection. In such peculiar facts aad circunistaiices of fhat case, fhe Court cam.e to the conclusion fhat the reasons which weiehed with the authorities to quash the selection are not gennaae and held sacbitrary aad irratioual. The priaciple propounded ia the aforesaid decision by the Supreme Court was as under - "2. The High Court while iaterferinR with fhe order of the Tribuiial, has taken iato consideration fhe fact that inere inclusion of a person's nanie in the Ust does not confer any right and tiierefore inaiidamus caiuiot be issued. The aforesaid enunciation as a proposition of law caanot be disputed. However, if fhe adiuinistrative authority takes a decision and the reasons for such decision are erroneous then -10- —^,/' aiE"t."" ^^ LDTayeen such a decision can be interfered with by a court of law." However, ia fhe present case, respondent did issue aa order ou 28.5.2009 caaceUiag the process of selection on a speci&c ground. Secondly on facts, fhis Court is not inclnied to hold that the reason for caacellation is not geroiane for such decision. 11. Consequently, I do no find any merit in^ this petitiou. The same deserves to be dismissed and is accordingly disinissed, 12, No order as to costs. »'»Md""S glyivastava