Lok Pal Singh JUDGMENT
Lok Pal Singh, J.
1. Since the controversy involved in these writ petitions is same, therefore, for the sake of brevity and convenience, both these writ petitions are being disposed of by common judgment.
2. Petitioners have approached this Court seeking the following reliefs:-
i) declare cancellation of entire selection for the post of Forest Guard in the absence of any material for forming an opinion that the selection is tainted, as arbitrary and illegal.
ii) Issue a writ, order or direction in the nature of certiorari for quashing the order/notification issued by respondent no. 4 as published in Hindi daily newspaper Amar Ujala dated 18.10.2015 whereby entire selection has been cancelled without assigning any reason.
iii) Issue a writ, order or direction in the nature of mandamus declaring the impugned decision to cancel the entire selection, in the absence of any material for forming such an opinion, as arbitrary and illegal.
iv) Issue a writ, order or direction in the nature of mandamus commanding the respondents to take the selection in question to its logical end and give appointment to the successful candidates recommended by the selection committee.
v) Issue a writ, order or direction in the nature of mandamus commanding the respondents to forthwith appoint the petitioners to the post of Forest Guard pursuant to the recommendation of the selection committee, which was duly accepted by the appointing authority.
vi) Issue a writ, order or direction in the nature of mandamus commanding the respondents to give appointment to the petitioner from due date i.e. the date when he would have been appointed if the selection was not cancelled and also to pay him all consequential benefits.
3. Factual matrix of the case is that the respondent no. 4 issued an advertisement dated 1st November 2013, inviting applications from open market for direct recruitment on the 12 posts of Forest Guard. The selection process consisted of physical examination, written examination followed by physical endurance test. For holding the selection, a Selection Committee was constituted, comprising Dr. Koko Rose, D.F.O. Kalagarh, Tiger Reserve Division as Chairman, Shri S.P. Singh, S.P.O. Sona Nadi, Sub Division of Kalagarh Tiger Reserve Division, Shri L.R. Nag, S.D.O. Adnala Sub Division of Kalagarh Tiger Reserve Forest Division, Shri B.N. Nishad, S.D.O. Haldwani Forest Division, Haldwani and Sub Divisional Magistrate, Lansdowne, as members of the selection committee. Pursuant to the said advertisement, petitioners submitted their applications forms. They were allotted admit cards, they participated in the selection process and were declared successful in physical examination as well as written examination. Thereafter, the petitioners were called for physical endurance test which was scheduled to be held on 02.09.2015. Petitioners participated in the said test and were declared qualified. Meanwhile, a complaint was received by the respondents regarding unfair practice in the selection process. On the basis of said complaint dated 14.09.2015, after due inquiry, a notification was issued, cancelling the entire selection process for the post of Forest Guard. Said notification was published in Amar Ujala hindi daily newspaper on 18.10.2015. It was further stated in the Notification that the written examination shall again be conducted and intimation with regard to the date of the written examination will be given separately. Feeling aggrieved by the cancellation of selection process, petitioners have filed the present writ petitions.
4. Heard Shri Aditya Singh, learned counsel for the petitioners and Ms. Anjali Bhargava, Additional Chief Standing Counsel along with Shri Sushil Vashishtha, Standing Counsel for the State of Uttarakhand/respondents.
5. Learned counsel for the petitioners contended that there was no reason to cancel the entire selection. Cancellation of entire selection is an extreme step which can be ordered when there are cogent reasons therefore. Sufficiency of material for forming an opinion is a vital aspect which deserves consideration, but in the present case, there is no material whatsoever which may warrant such decision to cancel the selection. It is also contended that the cancellation of the selection has a serious consequence for the petitioners which may result in the denial of the petitioners of a public employment to them forever. It is also contended that neither the petitioners nor any other selected candidate were heard at any stage, before cancellation of the selection. To buttress his submissions, learned counsel for the petitioners has placed reliance on a Co-ordinate Bench's judgment dated 11.07.2012 rendered in Writ Petition No. 455 of 2012 (S/S).
6. Counter affidavit has been filed on behalf of respondent nos. 2, 3 and 4 stating therein that pursuant to the advertisement dated 01.11.2013 total 7554 application forms were received for the post of Forest Guard, out of which, only 2234 applications were found complete. These candidates were called for medical test, wherein only 927 candidates were found fit, who were called for written examination. The written examination was conducted and after evaluation of the answer sheets of the written exam, short-listed candidates were called for the physical endurance test, which was held on 02.09.2015. It is further stated that meanwhile a complaint was received on 14.09.2015 regarding the use of unfair means by candidates in the written exam. The complaint was handed over to Shri S.P. Singh, Assistant Conservator of Forest, SDO Sonanadi for enquiry. The enquiry office submitted the report dated 11.10.2015. The finding and recommendation of the enquiry officer were placed before the Committee in a meeting dated 16.0.2015 and the Committee after due consideration of the findings reached to the conclusion to cancel the written examination. It is further stated that the appointing authority and the selection committee have sufficient proof on the basis of which decision was taken to cancel the entire selection. It is further stated that there is sufficient material to form an opinion that the selection process was manipulated to the advantage of certain candidates. It is also stated that the department made their best efforts to conduct a fair and partial exam but after the enquiry it has been found that the process was cleverly manipulated by some unscrupulous persons. It is also stated that the selection process was carried out as per the Uttarakhand Lower Subordinate Forest Service Rules 1980 under which the respondents are not required to consult or take the candidates into confidence in taking any decision with regard to the selection process.
7. Pursuant to the court's order dated 03.10.2017, a supplementary counter affidavit has also been filed on behalf of the respondent no. 4, annexing the copy of the inquiry report dated 11.10.2015 and the minutes of meeting dated 16.10.2015.
8. A rejoinder affidavit and a supplementary rejoinder affidavit have also been filed by the petitioners denying the averments of the counter affidavit.
9. The reason shown by the respondents for cancelling the entire selection process is that a complaint was received in the department alleging favouritism, unfair means, irregularities and malpractice in the process of selection. Record reveals that in order to look into the genuineness of the complaint, enquiry was conducted by Shri S.P. Singh, Assistant Conservator of Forest, SDO Sonanadi, Kalagarh Tiger Reserve Division, who during the course of inquiry, carefully perused the answer sheets of the top candidates in the merit list and arrived to the conclusion that some candidates have adopted unfair means in the written examination and a recommendation was made to cancel the written examination. Said enquiry report was placed before the Committee which was duly considered and a decision was taken to cancel the written examination and to conduct written examination afresh.
10. A perusal of the record would reveal that out of total 7554 candidates, only 927 application forms were found complete in all respect. Out of these 927 candidates, only 21 candidates were found successful in the written examination, who were short-listed for physical endurance test. But, meanwhile, a complaint was received whereupon after conducting a thorough inquiry, it was decided by the Selection Committee to cancel the written examination as well as the physical endurance test. Under the orders of this Court, a supplementary counter affidavit was filed by respondent no. 4 disclosing the parentage and address of the 21 candidates who were short-listed for physical endurance test. From the perusal of the chart annexed with the affidavit, it transpires that out of the 21 candidates, only 18 candidates responded to the registered letter sent by the department and submitted the desired information; out of these 18 candidates, fathers of 10 candidates are working in Forest department. This being the position, foul play and unfair practice in the selection process cannot be ruled out and the cancellation of selection process cannot be said to unjustified or irrational.
11. Cancellation of the written examination by the Selection Committee is an administrative decision and the Court should not ordinarily interfere in the administrative decision. Furthermore, merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment. Law on this point is no longer res integra having been settled in a catena of decisions.
12. The Hon'ble Apex Court in the case of Rakhi Ray v. High Court of Delhi, reported in MANU/SC/0080/2010 : (2010) 2 SCC 637, has held as under:
"24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. ...."
13. In Punjab State Electricity Board and Others v. Malkiat Singh, reported in MANU/SC/0878/2004 : (2005) 9 SCC 22, Hon'ble Apex Court has held as under:
"4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India which reads: (SCC pp. 50-51)
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted. This correct position has been consistently followed by this Court and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab."
14. As regards the jurisdiction of this Court under Article 226 of The Constitution of India, it is well settled principle in law that while exercising its powers of judicial review of any administrative action, Courts could not interfere with the administrative decision unless it suffers from the vice of illegality, irrationality or procedural impropriety. A Three Judges Bench of Hon'ble Apex Court in the case of Municipal Council, Neemuch v. Mahadeo Real Estate and others MANU/SC/1278/2019 : (2019) 10 SCC 738 has observed as under:-
"13. ...Though, there are a catena of judgments of this Court on the said issue, the law laid down by this Court in the case of Tata Cellular Vs. Union of India reported in MANU/SC/0002/1996 : (1994) 6 SCC 651 lays down the basic principles which still hold the field. Paragraph 77 of the said judgment reads thus:
"77. The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, MANU/UKHL/0008/1991 : (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention'".
14. It could thus be sent that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion that the decision-maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision-makes is vitiated by irrationality and that too on the principle of "Wednesbury unreasonableness" or unless it is found that there has been a procedural impropriety in the decision-making process, it would not permissible for the High Court to interfere in the decision-making process. It is also equally well settled that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision-making process.
15. This Court recently in the case of West Bengal Central School Service Commission vs. Abdul Halim reported in MANU/SC/0960/2019 : (2019) 18 SCC 39 had again an occasion to consider the scope of interference under Article 226 in an administrative action.
"31. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in MANU/SC/0169/1959 : AIR 1960 SC 137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
32. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect.
16. It could thus be seen that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law i.e. when the error is apparent on the face of the record and is self-evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice."
15. Insofar as the judgment relied on by the learned counsel for the petitioners is concerned, I have carefully perused the said judgment. This judgment is distinguishable on facts. In the said judgment, on the basis of mere suspicion, selection process was cancelled by the Selection Committee. There was not any cogent proof for the Selection Committee to arrive at such a conclusion to cancel the selection. Here, the case is different. A detailed enquiry was conducted and the answer sheets of the candidates were analysed. On the basis of sufficient proof, decision was taken to cancel the written examination.
16. In the light of aforesaid discussion, no ground for interference is made out. The writ petitions, being devoid of merit, are hereby dismissed.
17. No order as to costs.
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