Orissa High Court
Pradipta Kumar Samanta, Achyutananda ... vs State Of Orissa And Ors. on 12 December, 1996
Equivalent citations: 1997(I)OLR162
Author: S.N. Phukan
Bench: S.N. Phukan, A. Pasayat
JUDGMENT S.N. Phukan, C.J.
1. In all thase seven writ petitions filed under Arts. 226 and 227 of the Constitution of India, the facts and the point of law involved are the same and similar. Therefore, all of them are disposed of by this common judgment and order.
2. For the purpose of convenience, we state the facts of OJC No. 632 of 1996. The following facts are not disputed :
The Registrar (Judicial) of this Court issued notice dated 17-7-1991 inviting applications from candidates for filling up some posts of Junior Assistant in the Registry of this Court. The said notice is available at Anriexure-A/2 to' the. counter filed on behalf of the Registrar. Pursuant to the said notice, all the petitioners submitted applications and appeared in the written test as well as viva voce test. Thereafter a select list was prepared, a part of which has also been annexed as Annexure-B/2 to the aforesaid counter. The names of all the petitioners appear in the said select list. Considering the position of the petitioners in the select list, they were not offered appointment in the post of Junior Assistant. It may be stated that an undertaking was also taken from the petitioners that if all the posts of Junior Assistant were filled up according to the select list, then they will accept appointment, as Copyists. ¦ During that period, one writ petition was filed challenging the action of the opposite parties herein, which was registered as OJC No. 7958 of 1992, but the same was ultimately dismissed. The present petitioners have alleged that subsequently some persons were appointed as Copyists. From the counter we also find that two persons from general category and two persons from reserved category were appointed as such. Even then, the petitioners did, not come within the zone of consideration for appointment either as Junior Assistants or as Copyists. The select list prepared was directed to be kept valid for one year or till the next recruitment. Subsequently, more posts of Junior Assistant were sanctioned by the State Government in the Home Department and a proposal for holding recruitment was placed before the then Hon'ble Acting Chief Justice who by order dated 18- 1-1995 accepted the proposal and cancelled the select list on the ground that it had spent its life-span. The said order is annexed as Annexure-C/2 to the above counter, Thereafter a letter was issued to the Employment xchange for sponsoring candidates for the posts of Junior Assistant, which was challenged by filing a writ petition under Article 226 of the Constitution in this Court and the same was registered as OJC No. 8595 of 1995 (Susanta Kumar Kar v. Registrar (Judicial). Orissa High Court, Cuttack). A Division Bench of this Court examined this matter and by judgment dated 14-11-1996, keeping in view the law laid down by the apex Court in the . Excise Superintendent, Malkapatnam, Krishna District, Andhra Pradesh v. K. R. N. Visweshvyara Rao and Ors.: 1996 (7) Supreme 201, directed, inter alia, that the vacancies shall be notified in the notice-board of this Court and the notice-boards of all the District Courts of the State indicating the details relating to number of posts vacant, requisite qualification and the procedure for making the application.
3. The main grievance of the petitioners is that the earlier order was that the select list shal be valid for one year or till the next recruitment is held, the subsequent order of cancellation of the select list by the then Acting Chief Justice is illlegal and improper.
4. We have heard learned counsel for both the parties at length. The only question which requires our determination is whether on the basis of the select list prepared in December, 1992, appointments can be made in vacancies which occurred long after.
5. In Ashok Kumar and others v. The Chairman, Banking Service Recruitment Board and others: JT 1995 (8) SC 276, the apex Court considered the constitutional validity in selecting candidates for the State Bank of India and other Nationalised Banks for the Eastern Regiop of India. In that case, a requisition was given by the State Bank of India for recruitment of 960 vacancies and by other Nationalised Banks for recruitment of 1713 vacancies. The Recruitment Board prepared a list in excess of the requirement notified by the respective Banks. In paragraph 5 of the judgment, the Court held as follows :
"Art. 14 read with Article 16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional........."
6. In Di!ip Kumar Tripathy and others etc. v. State of Orissa and others : 1996 (6) SCALE 422, the question of appointment to the posts of Sepoy in the 6th Battalion came up for consideration. The Selection Committee prepared a list of 225 candidates on 31-10-1992. The list was exhausted inasmuch as except six candidates belonging to the reserved category, all the candidates were duly appointed. Thereafter, the Director-General of Police directed to Commandant to prepare a further list of 200 candidates from amongst the persons who had earlier appeared in the recruitment test. Accord-fngly, second list was prepared and direction was issued to fill up the vacancies from the said list. In view of the above facts, the apex Court held that there was absolutely no necessity to prepare the second list from amongst the candidates who had appeared at a test conducted earlier, particularly when at that point of time there was no vacancy available.
7. In Prem Singh and others v. Haryana State Electricity Board and others : 1995 SCC (L and S) 934, the apex Court took into consideration all the earlier decisions rendered by it in order to determine as to whether it was open to the Electricity Board to prepare a list of as many as 220 candidates and appoint as many as 137 out of the list when the number of posts advertised was only 62. it was held that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised even though it might have prepared a list of more candidates. it was further held that the State can deviate from the advertisement and make" appointments on posts falling vacant thereafter in exceptional circumstances only and in an emergent situation and that too by taking a policy decision in that behalf. ¦ According to the apex Court, even when filling up of more posts than advertised is challenged, the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner .as to strike a just balance between the interest of the State and the interest of persons seeking public employment.
8. In Hoshiar Singh v. State of Haryana: 1994 Supp. (4) SCC 377, a requisition was sent to select candidates for appointment of six posts of Inspector of Police by advertisement subsequent to the written examination, but prior to the physical test and interview, a revised request was mads for eight more posts. 1 he Board recommended 19 names out of which 18 persons were given appointment, which was challenged in the High Court, which held that the appointments beyond 8 posts were illegal. T..e Apex Court observed that since the requisition was for eight posts, the Board was required to send its recommendation for eight posts only. The apex Court held as follows :
"The appointment on the additional posts on the basis of such selection any recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. ..."
9. In State of Bihar v. Secretariat Asst. Successful Examinees' Union, 1986: (1994) 1 SCC 116, the Bihar State Subordinate Services Selection Board had issued an advertisement in the year 1985 inviting applications for the posts of Assistants falling vacant up to the year 1985-86. The number of vacancies was announced in August, 1987 and the examination was held in November, 1987, results of which were published in July, 1990. Immediately thereafter, out of the successful candidates, 309 were given appointment and the rest empanelled but made to wait for release of further vacancies. Since the vacancies available after 31-12-1988 were not disclosed or communicated to the Board, no further appointment could be made. Therefore, the empanelled candidates approached the Patna High Court and the High Court directed them to be appointed against the posts available on the date of publication of result as well as the vacancies which had arisen up to 1991. The apex Court quashed the judgment of the High Court directing filling up of vacancies for the years 1989, 1990 and 1991 from out of the list of the candidates who had appeared in the examination held in 1987.
10. Thus, the position of law is very clear that the number of posts which was in existence on the date of advertisement can only be filled up and subsequent posts which may be available due to fresh sanction or otherwise cannot be filled up from the select list prepared in pursuance of the advertisement unless there are excep-tional grounds and that too in public interest.
11. Coming to the cases in hand, from the counter-affidavit it is clear that at that time only 18 posts of Junior Assistant were vacant. Subsequently, the vacancies were raised to 31. All these posts were filled up. 28 posts were sanctioned subsequently on 9-5-1995. That apart, from the counter-affidavit we find that more posts have occurred due to retirement of employees or otherwise. Therefore, it would be against the law laid down by the apex Court if the persons whose names find place in the select list prepared in December, 1992' are appointed against the posts which have been subsequently created. It will also violate the provisions of Article 14 of the Constitution inasmuch as the candidates who have subsequently qualified will be deprived of the opportunity to appear in the written examination and viva voce test.
12. The allegation of the. petitioners that the salect list was arbitrarily cancelled by the then Acting Chief Justice has no force and we hold that it was rightly cancelled keeping in view to the law laid down by the apex Court.
For the reasons stated above, all the writ petitions are dismissed. No costs.
A.Pasayat, J.
13. I agree.