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PETITIONER: DILIP KUMAR TRIPATHY & ORS. ETC.

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT:       10/09/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      Leave granted.      These appeals by special leave are directed against the order of  the  Orissa  Administrative  Tribunal  dated  21st September, 1995  in Original  Application  No.  2252/93  and batch.      The appellants  filed applications  before the Tribunal alleging therein  that though  they were  impanelled in  the list prepared  for appointment  to the  post of Sepoy in the 6th Battalion on 9th February, 1993 (hereinafter referred to as ‘the  Second List’) and even though vacancies existed but only 16  candidates out  of the said List were provisionally appointed on 30th March, 1993 and no further appointment was made. It  was the  case of  the appellants  that the List in question having  been duly  made and  vacancies in  rank  of Sepoys  being   there  the  decision  of  the  authority  to provisionally appoint  only 16  persons and not to others is arbitrary  and  there  has  been  a  hostile  discrimination between those who have favoured with provisional appointment and the  appellants. Be  it be stated that even prior to the preparation of  the Second  List an  advertisement had  been issued sometimes  in March,  1992 inviting  applications for recruitment to the post of Sepoy in the 6th Battalion and in accordance with  Police Order  No. 286 of 1989 the Selection Committee prepared a list of 225 candidates on 31st October, 1992 (hereinafter referred to as ‘the First List’). The said List was exhausted and excepting six candidates belonging to the  reserved   category  the   rest  were  duly  appointed. Immediately  after   the  First   List  got  exhausted,  the Commandant of  the Battalion  informed the  Deputy Inspector General of  Police, Special Armed Police, Orissa, Cuttack by letter dated  7th January,  1993 that action should be taken to prepare  a fresh  list and fill up the existing vacancies in the  cadre of  Sepoy. The  D.I.G. of Police by his letter dated 15th  January, 1993 directed the Commandant to prepare a further  list of approximately 200 candidates from amongst

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the persons  who had  earlier appeared  in  the  recruitment test, so  that, vacancies  could be  filled up.  Pursuant to this direction  a fresh  list was  prepared on 9th February, 1993.  The   Inspector  General   of  Police   directed  the Commandant by  letter dated  12th February,  1993 to fill up the vacancies  from the  Second List but notwithstanding the said  direction   the  Commandant  only  issued  provisional appointment letters  to 16  persons from the Second List and no  action   was  taken  to  recruit  others  including  the appellants.  The   appellants,  therefore,   approached  the Tribunal by  different applications  as already  stated. The Tribunal discussed the procedure relating to the appointment of Sepoys  and came  to hold  that even the First List which was prepared  was vitiated  since the selection committee in question had  not been  duly constituted.  The Tribunal also came to  the conclusion  that  there  was  no  necessity  to prepare a  Second  List  unless  the  Sepoys  from  the  6th Battalion were  transferred out and it further held that the Inspector General  of Armed  Police had  intimated that  the Second  List  has  been  irregularly  prepared  and  has  no validity  and   nobody  should   be   appointed   therefrom. Ultimately, Tribunal  did not  quash the  appointments  made pursuant to  the First  List as  well  as  the  appointments already  made  pursuant  to  the  Second  List  and  further directed that  taking into  account the vacancies which were available on  30th March,  1993 the  rest of  the candidates from the  Second List  be appointed. The aforesaid direction of the Tribunal is being impugned in these appeals.      At the outset, Mr. K. Madhava Reddy, the learned Senior counsel appearing  for the appellants urged that the present case is  a glaring example of an employment racket where the concerned  authorities   without  following  the  prescribed procedure prepare  lists after  lists for appointment to the post of  Sepoy and  then  giving  appointments  to  some  no further appointment  letter was  issued and  such  a  racket should be  discouraged by  issuance of appropriate direction by this  Court. Mr.  Madhava Reddy  also urged that both the lists should  be scrapped  and the  appropriate  authorities should  be   directed  for   filling  up  the  vacancies  in accordance with  the  prescribed  procedure  under  law  and appointments be  made strictly  according to  the merit. Mr. Jayant Das,  the learned  senior counsel  appearing for  the respondent -  State, on  the other hand submitted that there was no  infirmity with the preparation of the First List and the Tribunal  erroneously came  to the  conclusion about the illegality in  the constitution  of the committee not having taken note of the addendum issued by the Director General of Police, and therefore, the appointments made pursuant to the First List  does not require any interference by this Court. So far as the preparation of the Second List and appointment made thereunder,  Mr. Das, however, submitted that there has been certain  irregularity in  the preparation of the Second List and  this Court  could issue  appropriate direction  in this  regard.   He,  however,  submitted  that  appointments already made  need not  be interfered with since people have already served the State for quite some time.      When the  case was listed for admission on February 26, 1996, this  Court being satisfied with the contention of Mr. Madhava Reddy, the learned Senior counsel for the appellants and being  of the  view that  the concerned authorities have deliberately prepared  long list  contrary to  the procedure prescribed under  law obviously  by way of allurement to the hundreds of  aspirants, issued  notice to the respondents to indicate as  to why  stricture should  not be passed against all those  higher police  officials who  are misusing  their

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posts  for   making  appointment   contrary  to   their  own regulations. A counter-affidavit has been filed on behalf of respondent nos. 1 and 2 being sworn to by Sanjeev Malik, AIG of Police, Orissa State Police Headquarters, Cuttack, Orissa admitting therein  that there has been gross irregularity in preparing the  Second List  and instructions had been issued from the  State Police Headquarters and the Director General of Police  not to  make any appointment from the Second List in question.  It has  been further  stated that the Director General of  Police has already moved the State Government by his letter dated 14th February, 1996 to initiate appropriate action against the then Inspector General of Police, Special Armed  Force  and  D.I.G.  Special  Armed  Force  for  their irregular directions  issued to the Commandant 6th Battalion and the State Government (Home Department) is in the process of  taking   departmental  action   against  the  defaulting officers. Notwithstanding  the aforesaid  affidavit filed by respondent nos. 1 and 2 and notwithstanding the proposal for initiation of  appropriate disciplinary  proceeding  against the errant  officers, we  are in pain to find that such high ranking police  officers who  claim to  be a  member of  the disciplined   force,    have   taken   recourse   to   gross irregularities in  getting list prepared for appointments to the post  of Sepoys  contrary to  the prescribed  norms  and procedure and even though there did not exist the vacancies. Such course  has been  taken obviously  not  in  the  public interest but  for some  extraneous consideration  and as  an allurement to  hundreds of poor aspirants with some positive motive.  Such   conduct  of  the  errant  officers  must  be deprecated and  we hope  and trust  that the State of Orissa should take  appropriate disciplinary  measures against  the defaulting officers.  The Director  General of  Police would also curb  all  such  irregularities  in  future,  so  that, hundreds of  poor persons  in the  hope and  expectation  of getting a job will not ultimately suffer.      Though Mr. K. Madhava Reddy, the learned Senior counsel appearing for  the appellants  contended that both the lists should be  scrapped in  view of the irregularities committed by the  committee as  observed by  the Tribunal, but we find that the  appellants had  not challenged the legality of the preparation of  the First  List as  well as the appointments made pursuant  to the  same list.  Even in  this  Court  the legality of  the First  List had not been challenged and the only ground  of attack  was that  why the  direction of  the Tribunal to appoint people taking into account the vacancies existed as on 30th March, 1993 should not be interfered with as the  said date  is an arbitrary date having no nexus with the ultimate  direction. Since  the First List was not under challenge before the Tribunal and has not been challenged in this Court  also, we  are unable  to persuade  ourselves  to agree with  the submissions  of Mr.  K. Madhava  Reddy,  the learned Senior  counsel  that  both  the  lists  be  quashed notwithstanding the observations of the Tribunal with regard to the  irregularity in  the constitution  of the committee. That  apart  the  Tribunal  also  was  not  correct  in  its conclusion that  the committee  was required  to consist  of three members  whereas the  committee which  really made the selection consisted  of four members as the Tribunal did not notice the addendum issued by the Police Headquarter in this regard. It  is, however,  not necessary to further deal with the matter  since the  legality of  the preparation  of  the First List  and appointment  pursuant thereto  had not  been assailed before the Tribunal itself.      But so  far as  the Second List is concerned though the controversy between  the parties  is whether the respondents

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be directed  to fill  up the vacancies as it existed on 30th March, 1993  from out  of the persons included in the Second List or  it should  be on  the basis  on the vacancies as it existed on  the date  of the judgment of the Tribunal but in view of  the gross  illegality in  the  preparation  of  the Second list  itself as  has been  indicated in  the counter- affidavit. it  would be  in the interest of justice to scrap the Second  list altogether and to direct the authorities to make a  fresh selection  in accordance  with the  prescribed procedure and  then appoint  persons in  accordance with the merit. It  may be noted that appointments to any public post must be  absolutely transparent  and fair  and  must  be  in accordance with the prescribed procedure. this is the reason why  this   Court  has  been  indicating  that  even  ad-hoc appointments should not be encouraged as far as possible and should be adhered to only when public exigencies require and appointment in  accordance  with  the  prescribed  procedure would take  a fairly  long time  and non-filling  up of  the posts would be against the public interest. In the facts and circumstances of  the present  case there  was absolutely no necessity  to   prepare  a  Second  List  from  amongst  the candidates who  had appeared at the tests earlier conducted. particularly when  at  that  point  of  time  there  was  no vacancies available.  The arbitrary  decision of  the errant officers has brought the entire police administration in the State to  disrepute. A  list of candidates prepared contrary to the  prescribed procedure  has to  be scrapped altogether and in  fact as  has been indicated in the counter-affidavit the Director  General of  Police  has  already  issued  such direction. In  the aforesaid  premises, The  Second List  of candidates for appointment to the post of Sepoys prepared by the Commandant  O.S.A.P.,  6th  Battalion,  Cuttack  of  9th February, 1993  is hereby  quashed and any appointments made thereunder also  stand quashed. The respondents are directed to issue  advertisement indicating  the number  of vacancies available. and  to adjudge the suitability of the applicants in accordance  with the  prescribed procedure  and then take steps for filling up of the posts in question. By passage of time if  any of  the persons who were included in the Second List have  been age  barred in the meantime and if they make application for  the  posts  of  Sepoy  pursuance  to  fresh advertisement to be issued, then the competent authority may relax their  age and  consider their case in accordance with law. These appeals are allowed with the aforesaid directions and observations. There will be no order as to costs. A Copy of the  order may  be sent  to the  Chief Secretary  to  the Government of  Orissa, Cuttack  for necessary  action and to report the  result of  the action  taken to  the Registry of this Court.