IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14500 of 2006 ------ 1. The Union of India through the Secretary-cum-D.G. Department of Posts, Dak Bhawan, New Delhi. 2. The Chief Post Master General, Bihar Circle, Patna. 3. The Director of Postal Services O/O the Chief Post Master General, Bihar Circle, Patna. 4. The Superintendent of post Offices, Sasaram Division Versus 1. Sri Manish Kumar son of Sri Vivekanand Das, Resident of Mohalla Gudari Bazar, Ward No. 10, District Supaul. 2. C.A.T. Patna Bench, Patna through its Registrar. ----------- For the Petitioners : Mr. Sanjay Kumar,C.G.C. For the Respondent no.1 : Mr. Jayant Kumar Karn. ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 11th November, 2008. There were four vacancies of Postal Assistant cadre in Rohtas Postal Division against outsider quota for the year 1996-97. Three seats were un-reserved and one seat was reserved for Scheduled Tribe candidate. Office of the Postmaster General, South Bihar Region, Ranchi, Department of Post, India invited applications for filling up these posts. Inter alia, it was provided that the applicant should have registered himself with Employment Exchange/Sub Employment Exchange with the revenue District of concerned Postal - 2 - Divisions. It was also provided that application on plain paper in the proforma should be submitted through the concerned employment exchange to the Postal Division concerned by 10th March, 1998. The Superintendent of Post Offices, Rohtas Division, Sasaram also sent a communication to the District Employment Exchange, Dalmia Nagar with a request to send the applications of intending candidates five times against the vacancies available in Rohtas Division, Sasaram. 2. The present respondent no. 1 submitted his application directly to the Office of the Superintendent of Post Offices, Rohtas Division, Sasaram for appointment to the post of Postal Assistant. His application was not accepted by the concerned authority. He filed Original Application (O.A. No. 948 of 2002) before the Central Administrative Tribunal, Patna Bench, Patna for a direction to the respondents therein (present petitioners) to accept his application and permit him to participate in the selection process. 3. The Tribunal allowed the original application and directed the respondents therein (present petitioners) to put the original applicant to the process of selection as required and accommodate him to the post of Postal Assistant if he is declared successful in the examination by order dated 21st April 2005. 4. The present petitioners filed a review application before the Central Administrative Tribunal seeking review of the order dated 21st April, 2005 but the same was dismissed vide order dated 15th December, 2005. - 3 - 5. Aggrieved by the orders dated 21st April, 2005 and 15th December, 2005 passed by the Central Administrative Tribunal, the present writ petition has been filed. 6. At the outset, we may notice the note appended to the advertisement which reads thus : “1. Applicant should have registered himself with Employment Exchange/Sub Employment Exchange with the revenue District of concerned Postal Divisions. 2. Application on plain paper in the proforma should be submitted through the concerned employment exchange, to the Postal Division concerned by 10.3.1998.” 7. That the respondent no. 1 did not submit his application in the concerned employment exchange is not in dispute. He does not seem to have been registered in the Employment Exchange/ Sub Employment Exchange with the revenue district of Rohtas Postal Division. The Tribunal held that the two conditions imposed vide Note as afore-noticed were not permissible being not in accordance with the law laid down by the Supreme Court in the case of Excise Superintendent Malkapatnam, Krishana District A.P. Vs. K. B. N. Visweshwara Rao and others, [(1996) 6 S.C.C., 216] and, accordingly, directed the present petitioners to put respondent no. 1 to the selection process and appoint him if was declared successful. 8. In the case of Union of India and others Vs. N. Hargopal and others [(1987) 3 SCC, 308], the Supreme Court considered the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. It was held that the object of the Act was not to restrict, but to enlarge the field of - 4 - choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. It was, thus, held that the Act does not oblige any employer to employ those persons only who have been sponsored by the employment exchange. While dealing with the instructions issued by the Government from time to time regarding recruitment of staff through the agency of the National Employment Service and the utilization of Employment Exchanges, the Supreme Court considered the matter thus : “7. The next question for consideration is whether the instructions issued by the government from time to time have the effect of compelling the employers to restrict their field of choice to candidates sponsored by the Employment Exchanges. We may straightway refer to some of the instructions on which reliance was placed by the learned Additional Solicitor General. In O.M. No. 14/11/64-Estt.(D) dated March 21, 1964, the Ministry of Home Affairs addressed all the Ministries regarding recruitment of staff through the agency of the National Employment Service and the utilization of Employment Exchanges by quasi- government institutions and statutory organizations. It is enough if we extract paragraphs 1, 4 and 5 of this communication which are as follows: 1. The undersigned is directed to say that in paragraph 6 of this Ministry‟s office Memorandum No.71/40-DGS (Apptts) dated December 11, 1949 (copy enclosed) it was laid down that all vacancies in Central Government establishments, other than those filled through the Union Public Service Commission should be notified to the nearest Employment Exchange and that no department or office should fill any vacancy by direct recruitment unless the Employment Exchanges certified that they were unable to supply suitable candidates. Subsequently in this Ministry‟s Office Memorandum Nos. 71/49-DGS (Apptts) dated - 5 - January 30, 1951 and 71/222/56-CS(C) dated December, 14, 1956 (copy enclosed), the Ministry of Finance etc. were requested to issue immediate instructions to all quasi-government institutions and statutory organizations with which they were concerned asking them to fall in line, as far as possible, with the Central Government establishments in the matter of recruitments, by suitably amending their recruitment rules or adopting resolutions to achieve this object if necessary. The Ministries were also requested to impress upon these institutions that it was in their own interest as well as in the interest of the country as a whole that recruitment should be made through the Employment Exchanges, as a large number of experienced and trained hands were available on their registers and the need for tapping other sources of recruitment should arise only if the Employment Exchange has certified that they were unable to nominate suitable recruits from their registers…… 4. Under the EE (CNV) Act, recruitment of staff through the Employment service is voluntary so far as the private sector is concerned. Even so, efforts are made by the Employment Service to persuade the private sector to accept candidates sponsored by the Employment Exchanges. The Directorate General of Employment and Training are placed in a very embarrassing situation when they have to approach the State Government and establishments in the private sector to utilise the Employment Service in filling up the vacancies, when some establishments in the public sector do not recognize the Employment Service as the normal channel of recruitment. 5. It is accordingly requested that the Ministry of Finance etc., may issue instructions to all quasi- government institutions and statutory organizations with which they are concerned requiring them to notify vacancies in the manner and form prescribed in Rule 4 of the EE (CNV) Rules, 1960 to the prescribed Employment Exchange and to fall in line with the Central Government departments in the recruitment of staff through the agency of the Employment Service. The need for issuing advertisements for inviting applications or tapping other sources of recruitment should be considered only if the Employment Exchanges issue non- availability certificates. A copy of the instructions issued by the Ministry of Finance etc., may kindly - 6 - be endorsed to the Ministry of Home Affairs and the Directorate General of Employment and Training. It will be noticed that in order to give effect to such instructions in the case of quasi-government institutions and statutory organizations, it would be necessary to suitably amend the recruitment rules or adopt resolutions to achieve that object. This is so mentioned in para 1. In office Memorandum No.14/22/65-Estt.(D) dated June 12, 1968, the Ministry of Home Affairs informed all the other Ministries: The undersigned is directed to say that in paragraph 6 of this Ministry‟s O.M. No.71/49/DGS(Apptt) dated December 11, 1949, it was laid down that all vacancies in Central Government establishments, other than those filled through the Union Public Service Commission, should be notified to the nearest Employment Exchange and that no department or office should fill any vacancy by direct recruitment unless the Employment Exchange certified that they were unable to supply candidates. In Office Memorandum No.14024/2/77-Estt (D) dated April 12, 1977, the Department of Personnel addressed all the Ministries/Departments and said: As the Ministry of Agriculture and Irrigation, etc. are aware, in accordance with the instructions issued by the Central Government (vide marginally-noted communications), all vacancies arising under Central Government offices/establishments (including quasi-government institutions and statutory organizations), irrespective of the nature and duration (other than those filled through the Union Public Service Commission), are not only to be notified to, but also to be filled through, the Employment Exchange alone and other permissible sources of recruitment can be tapped only if the Employment Exchange concerned issues a „non-availability‟ certificate. There can be no departure from this recruitment procedure unless a different arrangement in this regard has been previously agreed to in consultation with this department and the Ministry of Labour (Directorate General of Employment and Training). Similar instructions are also in force requiring vacancies against posts carrying a basic salary of less than Rs.500 p.m. in Central Public Employment Exchanges. - 7 - 8. It is clear that it is the desire of the Government of India that all government departments, government organizations and statutory bodies should adhere to the rule that not merely vacancies should be notified to the Employment Exchanges, but the vacancies should also be filled by candidates sponsored by the Employment Exchanges. It was only when no suitable candidates were available, that other sources of recruitment were to be considered. While the government is at perfect liberty to issue instructions to its own departments and organizations provided the instructions do not contravene any constitutional provision or any statute, these instructions cannot bind other bodies which are created by the statute and which function under the authority of statute. In the absence of any statutory prescription the statutory authority may however adopt and follow such instructions if it thinks fit. Otherwise, the government may not compel statutory bodies to make appointments of persons from among candidates sponsored by Employment Exchanges only. The question, of course, does not arise in the case of private employers which cannot be so compelled by any instructions issued by the government.” 9. The Supreme Court, thus, in N. Hargopal held that the Government was at liberty to issue instructions to its own department and organizations that the vacancies should not only be invited through the employment exchange but vacancies should also be filled up by the candidate sponsored by the employment exchange. N. Hargopal‟s case came up for consideration subsequently in the case of K. B. N. Visweshwara Rao (Supra). This is how the matter was considered by the Supreme Court: “3. These appeals by special leave arise from the order dated 21-4-1992 of the Andhra Pradesh Administrative Tribunal in OA No. 9501 of 1991 and batch. The admitted position is that the respondents were not - 8 - sponsored through the employment exchange for selection to the 723 posts sought to be filled up from the candidates sponsored through the medium of employment exchange. The respondents independently applied for consideration of their claims but they were not considered. Consequently, they approached the Tribunal and sought direction for their appointment. Interim directions were issued to consider their cases and to appoint them, if selected by the selecting authority. Though the Tribunal held that sponsorship of the candidates through the medium of employment exchange was valid and not violative of Articles 14 and 16 of the Constitution, since many of the candidates came to be selected in terms of the interim direction, orders were issued to appoint the selected candidates. There is a difference of opinion in this behalf. Whereas the majority of two members held that it is not violative of Articles 14 and 16 of the Constitution, the minority view was that it was violative. Thus, these appeals by special leave. 4. This Court in Union of India v.N. Hargopal, (1987) 3 SCC 308 : 1987 SCC (L&S)227 : (1987) 4 ATC 51, noted the contention of counsel appearing for respondents therein that excluding the candidates who were not sponsored through medium of employment exchange and restricting the choice of selection to the candidates sponsored through the medium of employment exchange, would offend the equality clause of Articles 14 and 16 and held that the contention was attractive and it was not open to the Government to impose restriction on the field of choice. But in view of the fact that even the paper publication would not reach many a handicapped who would be unable to have access to the newspaper, it was held that the sponsorship through the medium of employment exchange would not violate Articles 14 and 16. On the other hand, it would advance the rights to the handicapped. In that view, this Court upheld the restriction imposed by the State and Central Governments to consider the cases of the candidates through the medium of employment exchange, while holding that such a restriction was not intended to be applicable to the private employment as held in para 6 of the judgment. 5. Shri Ram Kumar, the learned counsel for the State, contended that in view of the above decision, the direction issued by the Tribunal is not in accordance - 9 - with law. On the other hand, S/Shri Shanti Swarup and L.R. Rao, the learned counsel appearing for the respondents, contended that the restriction of the field of choice to the selected candidates sponsored through the medium of employment exchange prohibits the right to be considered for employment to a post under the State and many people cannot reach the employment exchange to get their names sponsored and the employment exchanges are not adopting fair means and procedure to send the names strictly according to seniority in their record. So, the better course would be to adopt both the mediums, viz., of employment exchange and publication in the newspaper as that would subserve the public purpose better. 6. 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.” 10. In K. B. N. Visweshwara Rao it has, thus, been held - 10 - that in addition to requisitioning the names through employment exchange, the name should also be called for by publication in the newspapers having wide circulation and also display on their office notice boards or announce on radio, television and employment news bulletins. Such a procedure, it was observed, would sub-serve the fair play. The aforesaid decisions in the case of N. Hargopal (Supra) and K.B. N.Visweshwara Rao (Supra) have been considered by the Supreme Court in the case of Arun Tewari & Others Vs. Zila Mansavi Shikshak Sangh and others [(1998) 2 SCC 332]. 11. While dealing with the conditions with regard to inviting applications from the employment exchange, instead of advertisement, it has been held thus : “20. 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. The state has relied upon the case of Union of India v. N. Hargopal, (1987) 3 SCC 308: 1987 SCC (L&S) 227 where Government instruction enjoining that the field of choice should, in the first instance, be restricted to candidates sponsored by the employment exchanges, was upheld as not offending Articles 14 and 16 of the Constitution. In the case of Delhi Development Horticulture Employees‟ Union v. Delhi Admn., (1992) 4 SCC 99, (SCC at p.111), this court approved of recruitment through employment exchanges as a method of preventing - 11 - malpractices. But in the subsequent and more recent case of Excise Supdt. V. K.B.N. Visweshwara Rao, (1996) 6 SCC 216 this court has distinguished Union of India v. Hargopal on the basis of special facts of that case. It has observed that the better course for the State would be to invite applications from employment exchanges as well as to advertise and also give wide publicity through TV, Radio, etc. The Court had to consider whether persons who had applied directly and not through employment exchange should be considered. This Court upheld their claim for consideration. 21. There are different methods of inviting applications. The method adopted in the exigencies of the situation in the present case cannot be labelled as unfair, particularly when, at the relevant time, the two earlier decisions of this Court were in vogue. 22. We do not see any reason to fault the procedure prescribed or the qualifications prescribed or to set aside these selections and consequent appointments since none of the grounds on which the amendments, circulars and selections have been challenged, is sustainable in law. We have been informed that after the stay of the judgment of the Tribunal by this Court those who were selected/appointed under the prescribed procedure have been given appointments and they have been functioning as Assistant Teachers. In the cases of selected candidates not joining, the persons kept on the relevant waiting list in order to merit have been given appointments. There are no reasons to set aside these appointments.” 12. It would be, thus, seen that with regard to its decision in the case of K.B. N. Visweshwara Rao (Supra) it has been observed in Arun Tewary that N. Hargopal case was distinguished on the basis of the special facts of that case. It is true that the Note appended to the advertisement is not in consonance with the view expressed by the Supreme Court in the case of K.B.N. Visweshwara Rao. However, the question that falls for our consideration is whether the Central Administrative Tribunal was justified in directing the present petitioners to put respondent no. 1 (original applicant) to the process - 12 - of selection and if declared successful in the examination accommodate him to the post of Postal Assistant. In our considered view, the said direction is not justified for more than one reason. First, by the time the Tribunal passed its order on 21st April, 2005, the entire process of selection was already over and all the four vacancies of Postal Assistant in Rohtas Division stood filled up. There being no further vacancy, there could not have been any order of directing the present petitioners to put the present respondent no. 1 in the process of selection and accommodate him as Postal Assistant if declared successful. Secondly, and more importantly, the selected candidates were not impleaded as party respondents. Their selection in law could not have been set aside at their back. As a matter of fact, it has not been set aside. Once their selection has not been set aside, there was no scope for re-starting the process of selection which had already come to an end by filling all the four vacancies. 13. In our view, if the order of the Tribunal is allowed to stand, it would tantamount to creation of an additional post for respondent no. 1 which, we are afraid, is not legally permissible. Moreover, in Arun Tewary it has been observed that there may be different methods of inviting applications and the methods adopted has to be seen in the exigency of the situation. For want of any allegation of malafide or malpractice, at this distance of time, it is neither permissible nor possible to put the respondent no. 1 in the selection process as directed by the Tribunal. - 13 - 14. Consequently, the writ petition is allowed. The orders passed by the Central Administrative Tribunal on 21st April, 2005 and 15th December, 2005 are quashed and set aside. No order as to cost. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-