Devesh Kumar Payasi vs State of C.G. and Others

Satish K. Agnihotri, J.—The facts and question of law involved in this batch of petitions is the same and, as such, all the matters are being heard and disposed of by this common order. Facts, in brief, are that pursuant to the advertisement dated 24-9-2011 (Annexure-P/5) entitled as ''Interview Notice'' published on 29-9-2011 in ''Navabharat'' newspaper, the candidates were called to submit the application and to appear for counselling at 11.00 a.m. to 4.30 p.m. on 30-9-2011. Accordingly, the petitioners participated in the interview held in the office of the Chief Medical and Health Officer, Baikunthpur, District Koriya.

All the petitioners were appointed on the post of Multipurpose Health Worker (Male) {for short "MPHW"}, except petitioners in WP (S) Nos. 2728, 2730 and 2736 of 2012, who were appointed on the post of Lab Technician and the petitioner in WP (S) No. 3116 of 2012, who was appointed on the post of Auxiliary Nurse Midwife (for short "ANM"). MPHWs were appointed through defective public notice and the Lab Technician and ANM were appointed without any publication of notice for selection/appointment.

On discovery, it was found that there were certain irregularities in appointment of MPHWs, ANM and Lab Technician and, as such, the State Government by communication dated 4-4-2012 (Annexure-R/1) instructed the Collector, District Korea, to hold an enquiry in respect of aforesaid selection.

Pursuant thereto an enquiry in respect of the irregularities committed in appointment of the petitioners was conducted. After proper enquiry, a detailed enquiry report dated 31-5-2012 was submitted holding that the respondent No. 3 has violated the instructions dated 8-4-2008 as well as the rules prescribed for appointment of MPHWs, ANM and Lab Technicians, the roster system of reservation was not followed, proper advertisement was not issued and the ''Interview Notice'' was published in the newspaper on 29-9-2011 and the interview was conducted on 30-9-2011. 30 candidates, who were registered with the Employment Exchange were selected on the same day and different orders were issued on various dates i.e. 5th, 15th, 19th, 20th, 22nd, 29th and 31st December, 2011 and 17th January, 2012. There was no public notice calling upon all the eligible candidates to participate in the selection process except those who have been appointed on the basis of their registration with the Employment Exchange. It was also found that while calling the list from the Employment Exchange, a list of 64 persons only was requisitioned. When the list was not received by 29-4-2011, a reminder was sent to the Employment Exchange and thereafter, notice was published for interview, on 29-9-2011 to be held on 30-9-2011. As per the record, 109 candidates appeared for counseling. Only those candidates were selected, who were in the list submitted by the office of the Employment Exchange.

Under the provisions of Rules, the advertisement must be published in two newspapers whereas in the instant case, it was published only in one newspaper i.e. Navabharat. In the enquiry, even the records were examined and it was found that out of 30 candidates who were registered with the Employment Exchange only 27 candidates were appointed on the post of MPHW. There is no mention of any procedure adopted by the selection committee. During enquiry, it was also found that appointment on 8 posts of ANM and 5 posts of Lab Technician, without any public notice through the advertisement, was also done, without following the service rules.

A show-cause notice was issued to all the candidates, as is evident from the notice dated 16-5-2012 (Annexure-P/8). Thereafter, second show-cause notice was issued on 1-6-2012 (Annexure-P/9). The petitioners do not dispute the fact of issuing show-cause notice and affording opportunity of hearing. In view of the above-stated illegalities committed by the respondent No. 3, the decision was taken to cancel the entire selection as well as appointment made on the basis of illegal section, by order dated 8-6-2012 (Annexure-P/11). Hence, this petition.

Rakesh Pandey, Shri R.K. Gupta, Shri Sanjay Patel and Shri D.N. Prajapati, advocates appearing for the respective petitioners, submit that the enquiry is not proper, as the selection of the petitioners was done strictly on the basis of merit and on the basis of list submitted by the Employment Exchange.

On the other hand, Shri Thakur, learned Dy. Adv. General appearing for the State, submits that the appointment of the petitioners is governed by the rules namely; Madhya Pradesh Public Health and Family Welfare Department Non-Ministerial (related to the Directorate of Health Services) Class-III Service Recruitment Rules, 1989 (for short "the Rules, 1989"). The mode of appointment has been prescribed in Rule 11, but the same has not been followed. Thus, the appointment of the petitioners on the basis of illegal selection cannot be allowed to continue simply on the ground that they have been selected and thereafter, had joined the service. Learned counsel further submits that the advertisement was also defective, as no opportunity was given to the similarly situated candidates, as it was not possible for the candidates living outside the town or within town to apply and appear before the appointing authority for interview on the next date. The entire exercise was bogus, as is evident from the enquiry report. The petitioners have been given opportunity of hearing not once, but twice before the impugned orders were passed. Thus, the petitioners are not entitled to any relief and the petitions deserve to be dismissed.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto and I have also perused the original records and the statements of the petitioners produced by the learned counsel appearing for the State during the course of arguments.

It is evident that all the facts, as afore-stated, are indisputable. The advertisement, titled as ''Interview Notice'', cannot be held as proper notice. Notice for selection/appointment is the proper notice. Interview Notice is deceptive, when the mode of selection was through interview. Calling the candidates to appear before the appointing authority next date without expressing clear intention to invite application for selection/appointment is not sustainable in the eyes of law. The minimum reasonable time atleast 15 days under proper heading of advertisement ought to have been granted so that most eligible candidates could have appeared for interview to ensure proper selection on merit.

The enquiry report submitted in respect of ANM and Lab Technician was also examined and it was found that even the advertisement was not issued for selection of ANMs and Lab Technicians before the petitioners were selected and appointed. Though, in the instant case, all the petitioners were afforded full opportunity to put forward their cases before their appointments were cancelled. It is a trite law that if the mischief played is so widespread and all-pervasive, affecting the result the only way out would be to cancel the whole selection. (See Union of India and Others Vs. O. Chakradhar,

Sub-rule (2) Rule 11 of the Rules, 1989 does not provide that the candidates should be called only through Employment Exchange. Even otherwise, it is well settled principle of law that even if the names of the petitioners were called from the employment exchange, this does not suffice the requirement of provision of constitutional scheme of employment, as there should be an open invitation to all the concerned. Registration of name in the employment exchange may be one of the eligibility criteria, but drawing names from the employment exchange does not meet with the requirement of constitutional scheme of employment. Admittedly, the recruitment of the petitioners was not made in accordance with any rules. (See Darbar Singh Porte and Another Vs. State of C.G. and Another,

Sub-rule (3) Rule 11 provides for reservation, which has also not been followed in the selection process. Needless to mention that selection of MPHW, ANM and Lab Technician is by way of direct recruitment.

It is further well settled that if an appointment is illegal, which is not inconsonance with the constitutional scheme and also service rules have not been followed the appointment is non est in the eye of law, which renders the appointment to be a nullity. (See: Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, and Municipal Corporation, Jabalpur Vs. Om Prakash Dubey,

Having regard to the facts situation of the case, particularly considering the fact of method of selection and appointment thereon, which was illegal and was discovered subsequently in an enquiry after affording proper opportunity of hearing to the petitioners, interference with the impugned order is not warranted. As a sequel, all the writ petitions, sans substratum, are liable to be and are hereby dismissed, leaving the parties to bear their own costs.