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CASE NO.: Appeal (civil)  2262 of 2005

PETITIONER: Arun Kumar Nayak

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 20/09/2006

BENCH: H.K.SEMA & P.K.BALASUBRAMANYAN

JUDGMENT: J U D G M E N T

H.K.SEMA,J.

               This appeal is directed against the judgment and  order dated 13.02.2003 of the High Court of Orissa in OJC No.  6122 of 2000 whereby the order dated 6.8.1999 passed by the  Central Administrative Tribunal (hereinafter the Tribunal) in  O.A.No.606 of 1998 was set aside.          We have heard the parties at length.  The present  controversy relates to the appointment of Extra Departmental  Sub Post Master ( in short EDSPM ) at Ratnagiri, now  redesignated as, "Gramin Dak Sewak".  On 18.9.1997 a  requisition was made to the local Employment Exchange.  It  was stipulated that preference would be given to ST/SC  candidates.  Pursuant to the advertisement the Employment  Exchange sponsored a list of 40 candidates including the 4th  respondent herein Sri Chittaranjan Kar.  A corrigendum was  issued on 19.8.1998 requiring public Notification having wider  publicity along with the requisition to be made to the  Employment Exchange.  This corrigendum was issued in  terms of the directions issued by this Court in the case of  Excise Superintendent Malkapatnam, Krishna District,  A.P.  Vs.  K.B.N. Visweshwara Rao and others 1996(6) SCC  216.  On 9.9.1998, the public Notification was issued inviting  applications from intending candidates.  In the said  Notification, it was stipulated that if a minimum number of 3  eligible candidates belonging to ST community do not offer  their candidature, the vacancy in question shall be offered to  the candidates belonging to OBC and SC candidates  respectively, in order of deficiency in representation.  Pursuant  to Public Notification the appellant applied for the post as an  OBC candidate in the prescribed application format along with  the requisite documents.                     It may be mentioned here that out of 40 candidates  sponsored by the Employment Exchange, only 7 candidates  submitted their application forms when called upon to do so.   Thus, 33 were eliminated.  Out of the balance 7 candidates,  six candidates were again disqualified since they did not  produce all the necessary documents.   The candidature of  only the 4th respondent was considered and he was selected on  15.10.1998.  There was no element of selection.  The process  of selection was a mockery.  The candidates including the  appellant, who applied pursuant to the advertisement, were  eliminated by Respondent No.2 Supdt. of Post Offices,  Cuttack, North Division, on the ground that since the  recruitment process had already commenced pursuant to the  requisition made to the Employment Exchange on 18.9.1997,

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the public Notification issued on 9.9.98 inviting applications  was superfluous and unnecessary.  On this reasoning, the 2nd  Respondent was of the view that  the 4th respondent who is a  general category candidate was the only eligible candidate  amongst the applicants who applied pursuant to the  requisition made to the Employment Exchange.                     Aggrieved thereby, the present appellant challenged the  selection of 4th respondent by filing O.A.606/98 before the  Central Administrative Tribunal, praying inter alia for  quashing the selection process and directing the Department  to consider the petitioner’s application along with others on  merits.  The learned Tribunal passed an interim order that any  appointment made would be subject to the final result of the  O.A.   Pursuant to the aforesaid interim order, the department  issued a letter of appointment in favour of respondent No.4 on  15.1.1999, with a rider that appointment was subject to the  final result of O.A.  Thereafter, by an Order dated 6.8.1999,  the Tribunal allowed the O.A. and quashed the entire selection  process in question with a direction to the respondent  department to conduct a selection process afresh and consider  all the applications on merit, received both from the  Employment Exchange and the candidates who submitted  applications pursuant to the public Notification dated 9.9.98  including the application of the appellant.                  The Tribunal after hearing the parties has held that  after examining the records of the selection file in original, out  of seven candidates who were being considered, six candidates  did not submit all the necessary documents and they were  disqualified.  The Tribunal also found that the Selection  Committee considered only the case of 4th respondent whose  candidature according to the Committee was complete in all  respect and he was selected subsequently.  The reasoning of  the department was that issuing of public Notification was  wrong as the circular of the Director General, Posts, providing  for simultaneously calling for names from Employment  Exchange and for issuing public Notification was not  applicable in respect of the cases where selection procedure  had already been taken on hand and therefore six candidates  who applied pursuant to the public Notification were  disqualified.  The stand of the department was rejected by the  Tribunal and, in our view, correctly.  The Tribunal was of the  view that there was no element of choice before the  department since the only candidate remained to be  considered was the 4th Respondent.  On this reasoning, the  Tribunal set aside the selection and appointment of the 4th  respondent.  We fully subscribe to the views of the Tribunal.                         In compliance of the direction of the Tribunal the  appointment of the 4th respondent was terminated on  3.5.2000.  A fresh selection was held on 15.5.2000 in which  the total number of 13 candidates which included the  application made pursuant to the sponsored list prepared by  the Employment Exchange including that of 4th respondent  and the applications made in pursuance of the public  notification dated 9.9.98 were considered.   In that selection  the present appellant, Arun Kumar Nayak, was selected and  the 4th respondent was not selected.   This would show that  the 4th respondent was not eligible even at the time when his  case was first considered by the Selection Committee on  15.10.1998 and recommended for appointment. However, by  the impugned order in OJC No. 6122 of 2000 the High Court  has set aside the order dated 6.8.99 of the Tribunal   and  confirmed the appointment of the 4th respondent.                  This Court issued notice on 28.3.2003 and the  order of the High Court was stayed.  It is stated that in view of  the stay order granted by this Court the appellant is still

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continuing in the post.   The High Court upset the reasoning  of the Tribunal by relying on the decision of this Court in  Union of India   vs. N.Hargopal (1987) 3 SCC 308, where it  has been held that the Government instructions enjoying the  field of choice should in the first instance, be restricted to  candidates sponsored by the Employment Exchanges, and the  same was upheld as not offending Articles 14 and 16 of the  Constitution.  The High Court has also relied on the decision  of this Court in the case of Delhi Development Horticulture  Employees’ Union    vs.  Delhi Administration, Delhi (1992)  4  SCC 99, where this Court approved the recruitment through  Employment Exchanges as a method of preventing  malpractices.    Subsequent decisions of this Court rendered  in Excise Supdt. Malkapatnam   vs.  K.B.N.Visweshwara  Rao (1996) 6 SCC 216, wherein Hargopal (supra)  was  considered and distinguished, was placed before the Division  Bench of the High Court but the High Court brushed it aside  by observing that it was distinguishable on the basis of special  facts of that case.                  In Visweshwara Rao (supra) a three Judge Bench of  this Court after considering Hargopal (supra) held in  paragraph 6 as under:- "Having regard to the respective contentions, we  are of the view that contention of the  respondents is more acceptable which would be  consistent with the principles of fair play,  justice and equal opportunity.  It is common  knowledge that many a candidate is unable to  have the names sponsored, though their names  are either registered or are waiting to be  registered in the employment exchange, with the  result that the choice of selection is restricted to  only such of the candidates whose names come  to be sponsored by the employment exchange.   Under these circumstances, many a deserving  candidate is deprived of the right to be  considered for appointment to a post under the  State.  Better view appears to be that it should  be mandatory for the requisitioning  authority/establishment to intimate the  employment exchange, and employment  exchange should sponsor the names of the  candidates to the requisitioning departments for  selection strictly according to seniority and  reservation, as per requisition.  In addition, the  appropriate department or undertaking or  establishment should call for the names by  publication in the newspapers having wider  circulation and also display on their office notice  boards or announce on radio, television and  employment news bulletins, and then consider  the cases of all the candidates who have  applied.  If this procedure is adopted, fair play  would be subserved.  The equality of  opportunity in the matter of employment would  be available to all eligible candidates."    

               This Court in Visweshwara Rao (supra), therefore,  held that intimation to the Employment Exchange about the  vacancy and candidates sponsored from the Employment  Exchange is mandatory.  This Court also held that in addition  and consistent with the principle of fair play, justice and equal  opportunity, the appropriate department or establishment  should also call for the names by publication in the  newspapers having wider circulation, announcement on radio,

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television and employment news bulletins and consider all the  candidates who have applied.  This view was taken to afford  equal opportunity to all the eligible candidates in the matter of  employment.  The rationale behind such direction is also  consistent with the sound public policy that wider the  opportunity of the notice of vacancy by wider publication in  the newspapers, radio, television and employment news  bulletin, the better candidates with better qualifications are  attracted, so that adequate choices are made available and the  best candidates would be selected and appointed to subserve  the public interest better.                  In Arun Tewari   Vs.  Zila Mansavi Shikshak Sangh  (1998) 2 SCC 332, where to fill about 7000 posts of Assistant  Teachers under a time-bound scheme (Operation Blackboard),  statutory rules were amended and decision taken to fill up  vacancies district wise by calling candidates from district  employment exchanges, without involving the Selection Board,  the Two Judge Bench of this Court held that in view of the  exigency the method adopted in the given facts was not unfair.  Although a reference was made to Visweshwara Rao (supra)  but it was not even distinguished in Arun Tewari (supra).  The  decision of the two judge bench of this Court after considering  Hargopal (supra), Delhi Development Horticulture  Employees Union (supra) and Visweshwara Rao  (supra) held  in paragraph 20 as under:-

"The next contention relates to inviting  applications from employment exchanges  instead of by advertisement.  This procedure  has been resorted to looking to the  requirements of a time-bound scheme.  The  original applicants contended that if the posts  had been advertised, many others like them  could have applied.  The original applicants  who so complain, however, do not possess the  requisite qualifications for the post.  As far as  we can see from the record, nobody who had  the requisite qualifications has complained  that he was prevented from applying because  advertisement was not issued.  What is more  important, in the special circumstances  requiring a speedier process of selection and  appointment, applications were invited  through employment exchanges for 1993 only.   In this context, the special procedure adopted  is not unfair."  

Therefore, the decision by this Court in Arun Tewari (supra) is  based on the facts of that case, namely a time bound scheme  and exigency of service.   No law has been laid down  thereunder.  But in the case of Visweshwara Rao (supra) a  three Judge Bench of this Court has laid down the law and  that is still holding the field.                 There is yet another reason for which the order of  the High Court, cannot be sustained.  In the Notification dated  9.9.98 the applications were invited from the intending  candidates belonging to ST community for the posts.  It was  also stipulated in the advertisement that if a minimum of three  eligible candidates belonging to the ST community do not offer  their candidature, the vacancy in question will be treated as  unreserved and offered to the candidates belonging to the  other reserved communities in order of deficiency in  representation \026 OBC Community and SC community.  The  appellant belongs to OBC.  Admittedly, the 4th respondent  belongs to general category.  Even otherwise, he could not

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have been selected, notwithstanding the availability of  candidates from other reserved category like OBC and SC  community.                            For the aforestated reasons, the impugned order of  the High Court dated 13.02.2003 passed in OJC No.6122 of  2000 is hereby set aside.  The appeal is allowed.  Writ Petition      filed by the 4th respondent stands dismissed.  No costs.