Jitendra Behera vs Registrar (Administration), Orissa High Court and Others

B.S. Chauhan, C.J.—This Writ Petition has been filed for quashing the impugned Order Dated 30.9.2004 by which the services of the Petitioner as a Class ''IV employee working in the Court of Judicial Magistrate, First Class, Kantamal in the judgeship of Phulbani had been brought to an end on the ground that he was illegally appointed.

The Petitioner claims that this Court vide its letter dated 4.5.2002 directed all the District Judges of the State to fill up all the vacancies which were existing in the respective judgeships and in pursuance thereof an advertisement was made pasting a notice on the Notice Board of the office of District Judge, Phulbani inviting applications from eligible candidates for different Class IV posts. According to the Petitioner, there was only one post of Night Watchman cum-Sweeper and there were large number of applications for the said post. The appointing authority conducted the interview and in the said interview he stood first in the merit list and therefore, was offered the appointment vide letter dated 24.8.2002. Subsequently the Petitioner was given a show cause notice dated 21.8.2004 to show cause why his services should not be terminated as he had been illegally appointed. The Petitioner submitted a reply to the said show cause notice stating that he had applied in pursuance of the notice dated 21.8.2004 pasted in the notice board. After considering the reply to the show cause notice, the impugned order was passed. Hence, this Writ Petition.

Learned Counsel for the Petitioner submitted that the appointment of the Petitioner was made in accordance with law and after terminating the services of the Petitioner, a Disciplinary Proceeding was initiated against Shri M.C. Ray, the then District Judge, Phulbani, who was the appointing authority on various charges including illegal appointments. However, the said proceeding was subsequently dropped vide letter dated 3.12.2004. Since the proceeding against the District Judge has been dropped, the impugned order is liable to be quashed.

The public employment wherever it is made involves public element and it becomes mandatory on the authorities to ensure compliance of the provisions of Articles 14 and 16 of the Constitution. Vide Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, . The question as to whether any appointment is to be made only after giving public notice was the requirement of Articles 14 and 16 and it was considered by the Courts from time to time and in State of Haryana and others Vs. Piara Singh and others etc. etc., , and in Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others, it was held that calling the names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment and appointment made on such basis does not meet the requirement of Articles 14 and 16 of the Constitution and every appointment should be made giving wide publicity indicating the number of vacancies, eligibility etc. However, taking note of the Judgment of the Hon''ble Supreme Court in Union of India (UOI) and Others Vs. N. Hargopal and Others, , the Apex Court held that for appointment to Class IV posts only by calling for the names from the Employment Exchange there is no kind of illegality, corruption or nepotism. In these two Judgments the Apex Court upheld the mode of appointment, particularly in Class IV posts by calling for the names from the Employment Exchange. The view taken in N. Hargopal''s case (supra) was doubted and the matter was referred to the larger Bench. It was held by the Apex Court that such advertisement is to be made in the newspapers having wide circulation and in addition thereof, the vacancy should also be advertised in radio and TV and any appointment made without making advertisement in the local newspapers would be void ab initio, It has also been held by the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, that any appointment made without following the requirement of Articles 14 and 16 and without making wide publicity would be void ab initio.

In Dr. (Mrs.) Meera Massey, Dr. Abha Malhotra and Dr. S.C. Bhadwal and Others Vs. Dr. S.R. Mehrotra and Others, , the Apex Court observed as under:

If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits...wrong channel adopted.... If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy.

The Supreme Court has taken the same view in Ram Chand and Others Vs. Union of India (UOI) and Others, , and held that "the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness.

In Purushottam Vs. Chairman, M.S.E.B. and Another, , the Hon''ble Supreme Court has held that appointment should be made strictly in accordance with the statutory provisions and a candidate who is entitled for appointment, should not be denied the same on any pretext whatsoever as usurpation of the post by somebody else in any circumstances is not possible.

A Constitution Bench of the Hon''ble Supreme Court in Ajit Singh and Others Vs. The State of Punjab and Others, held that any action being violative of Article 14 of the Constitution is arbitrary and if it is found to be de hors the statutory rules, the same cannot be enforced.

Similar view has been reiterated in Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P. and Others, ; National Fertilizers Ltd. and Others Vs. Somvir Singh, ; K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, ; Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., ; and Km. Rashmi Mishra v. M.P. Public Service Commission and Ors. (2006) 12 SCC 724.

The Hon''ble Supreme Court in State of U.P. and others Vs. U.P. State Law Officers Association and others, , has held that those who come by back door should go through that door.

Similar view has been reiterated in M.P. State Coop. Bank Ltd., Bhopal Vs. Nanuram Yadav and Others, .

It is settled legal proposition that appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.

In Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others, , the Hon''ble Apex Court held that calling the names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment.

In State of Haryana and others Vs. Piara Singh and others etc. etc., , the Hon''ble Supreme Court held as under:

Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

Any appointment made on temporary or ad hoc basis in violation of the mandate of Articles 14 and 16 of the Constitution of India is not permissible, and thus void as the appointment is to be given after considering the suitability and merit of all the eligible persons who apply in pursuance of the advertisement.

In Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, , the larger Bench of the Hon''ble Supreme Court reconsidered its earlier Judgment in Union of India (UOI) and Others Vs. N. Hargopal and Others, , wherein it had been held that insistence of requisition of names from employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari and Ors. v. Zila Manaswavi Shikshak Sangh and Ors. AIR 1998 SC 331; Kishore K. Pati v. District Inspector of Schools, Midnapur and Ors. (2000) 9 SCC 405 and Subhash Chand Dhrupta and Another Vs. State of Himachal Pradesh and Others, . Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.

A similar view has been reiterated in Pankaj Gupta and Others, etc. Vs. State of Jammu and Kashmir and Others, ; Binod Kumar Gupta and Ors. v. Ram Ashray Mahoto and Ors. : AIR2005SC2103 ; National Fertilizers Ltd. and Others Vs. Somvir Singh, ; R.S. Garg Vs. State of U.P. and Others, ; Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, ; and Commissioner Municipal Corporation Hyderabad and Ors. v. P. Mary Manoranjani AIR 2008 SC 704.

In Secretary, State of Karnataka and Others Vs. Umadevi and Others, , a Constitution Bench of the Hon''ble Supreme Court came to the conclusion that adherence to the provisions of Articles 14 and 16 of the Constitution of India is a must in the process of public employment and an employee who has been appointed without following the procedure prescribed by law, is not entitled for any relief, whatsoever, including the salary:

In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others, , the Hon''ble Supreme Court held that the appointment to any post under the State can only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made Without following the procedure, would be in violation of the mandate of Article 16 of the Constitution of India.

Therefore, it is evident that any appointment made without advertising the vacancy cannot be held to be in conformity with the mandate of Articles 14 and 16 of the Constitution of India and is a nullity.

In Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, , the larger Bench of the Hon''ble Supreme Court reconsidered its earlier Judgment in Union of India (UOI) and Others Vs. N. Hargopal and Others, , wherein it had been held that insistence of requirement through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari and Ors. v. Zila Manaswavi Shikshak Sangh and Ors. AIR 1998 SC 331; Kishore K. Pati v. District Inspector of Schools, Midnapur and Ors. (2000) 9 SCC 405 and Subhash Chand Dhrupta and Another Vs. State of Himachal Pradesh and Others, . Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.

In the instant case, the notice was only given in the Notice Board of the District Judge''s Office, but it was never advertised in the newspapers having wide publicity inviting applications from those who are eligible for the post so advertised. In such situation, the appointment of the Petitioner has been rightly terminated as the appointment was given without following the legal requirement.

22.In view of the above, this Court does not find any merit to entertain this petition which is accordingly dismissed.

B.N. Mahapatra, J.

I agree.