WP(C) 1145/2011 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA B.K. Sharma, J All the three writ petitions pertain to the claim of the petitioners tha t they have been deprived of selection and appointment as Excise Constable becau se of the wrong action on the part of the respondents. While in WP(C) 763/2011, the petitioners did not participate in the selection process, the petitioners in the other two writ petitions i.e. WP(C) 1145/2011 and 1359/2011 did participate in the selection but could not qualify, which according to them is because of t he illegality committed in conducting the selection, more particularly, in the o ral interview. 2. Although in WP(C) 763/2011, the 8(eight) petitioners have also stated ab out some irregularities in conducting the selection but the learned counsel for the petitioners, during the course of hearing confined his argument only to one issue, which is as to whether the selection conducted without the posts being ad vertised in the newspaper is a valid one. Be it stated here that the selection w as conducted from amongst the candidates sponsored by the Employment Exchanges. In the second writ petition, the four petitioners who had participated in the se lection process upon failure to qualify in the selection, have questioned the se lection on the ground that some of the candidates who did not conform to the req uirement of physical fitness and also those who did not even undergo the physica l test including running test, had been called for viva-voce. These petitioners have also adopted the ground of attack in the first writ petition to question th e selection. 3. The respondents have filed their counter affidavit in WP(C) 763/2011 hig hlighting the procedure of selection conducted. It has been denied that the sele ction was conducted in a mechanical manner. It has also been highlighted that in absence of any malafide and colourable exercise of power in conducting the sele ction, the writ court will be reluctant to interfere with the selection. 4. In the said affidavit, it has been brought on record that the employment notice was notified in the newspapers. In this connection, they have brought on record the Annexure R/3 notice published in the issue of Assam Tribune, an Engl ish newspaper and Agradoot, an Assamese newspaper. The said notice was published in both the newspaper on 16.9.2010 and it reads as follows :- NOTICE Notification of vacancies to fill up of 98 posts of Excise Constables under Ex cise Department are circulated to all Employment Exchangess in the State to spon sore the name of candidates to the concerned authorities on or before 30-09-2010 positively. So, all intending candidates are hereby asked to contact concerned local Employm ent Exchangess to sponsore their names within the stipulated time. Sd/- Commissioner of Excise, Assam Housefed Complex, Dispur, Guwahati-6. 5. The respondents in their counter affidavit have also brought on record t he inter-departmental communications relating to filling up of 98 (ninety eight) posts of Excise Constables and as to how physical fitness and medical test were held in 3 (three) different Centers, which are, Guwahati, Silchar and Sivasagar , in the month of December, 2010, amongst the candidates whose names were sponso red by the Employment Exchanges. The said test was conducted by a panel of exper ts which consisted of one Sports Officer and one Medical Officer of the Governme nt. The required criteria for the said fitness test are as under :- Chest = 80- cm (Normal) = 85- cm (Expanded) Height = 162.56 cm(Gen), 160.62 (ST(H){male} = 154.94cm (Gen), 152.40 (ST(H) {Female} Running = 1600 meter in 6.5 minutes (Male) = 800 meter in 6.5 minutes (Female. 6. After the aforesaid tests were conducted, the qualified candidates were called for viva-voce test vide notification dated 29.12.2010, which was also pub lished in local dailies on 5.1.2011. Thereafter, the test was held during the pe riod from 8.1.2011 to 23.1.2011. The interview was conducted by a Selection Comm ittee which was duly constituted by the Government in the Excise Department vide notification dated 5.1.2011. 7. After the aforesaid process of selection, the select list was prepared i n order of merit and was published. Although, it is the claim of the respondents that the select list was so published on 11.2.2011 and appointment letters were also issued on 11.2.2011 and that most of the candidates submitted their joinin g reports on 14.2.2011 and some on 15.2.2011 but the petitioners have disputed t he same. 8. Mr. S.S. Dey, learned counsel arguing for the petitioners in WP(C) 763/2 011 placing reliance on the 3 (three) decisions of the Apex Court reported in 19 96(6) SCC 216 (Excise Superintendent Vs. K.B.N. Viseshwara Roa) ; 1996(7) SCC 57 7 (Ashwani Kumar Vs. State of Bihar) and 2007(8)SCC 264 (MP State Co-operative B ank Limited Vs. Nanuram Yadav), submitted that the vacancies having not been not ified in any newspaper and the selection having been confined only to the Employ ment Exchanges sponsored candidates, there has been violation of Article 14 and 16 of the Constitution of India and thus the selection is liable to be set aside and quashed with direction to hold a fresh selection with wide publication of t he Employment Notice. As regards the plea of non-joinder of necessary parties, t he selected candidates being not party to the writ petition, he submitted that t hose who tried to enter through back door, should also go out through back door and in case of glaring illegality in conducting the selection, the question rela ting to no notice , no reasonable opportunity of being heard etc. will have o application. 9. Mr. A. Choudhury, learned counsel appearing for the petitioner in WP(C) 1145/2011 and Mr. S.K. Talukdar, learned counsel appearing for the petitioners i n WP(C) 1359/2011 while adopting the aforesaid argument advanced by Mr. Dey, als o argued that in view of the illegalities committed in conducting the selection, same is liable to be set aside and quashed. 10. Countering the above argument, Mr. K.N. Choudhury, learned Addl. Advocat e General, Assam assisted by Mr. J. Patowary, learned counsel appearing for the respondents as well as Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate, sub mitted that all the writ petitions lack material, so as to call for an interfere nce exercising writ jurisdiction. As regards the plea of requirement of publicat ion of employment notice in the newspaper, they submitted that since the employm ent notice was published in the newspapers on 16.9.2010, all the petitioners wer e well aware about the selection being conducted. Dealing with the argument adva nced by Mr. Dey, learned counsel for the petitioners in WP(C) 763/2011, Mr. Chou dhury, learned Addl. AG, Assam submitted that there being no whisper in the writ petition that because of non-publication of the employment notice in the manner in which the petitioners wanted, resulted in deprivation of their participation in the selection process, they are not entitled to invoke the writ jurisdiction of this Court on that count. 11. I have considered the rival submissions made by the learned counsel for the parties as well as the materials on record. I have also consulted the record s pertaining to the selection which have been produced by the learned State Coun sel during the course of hearing. 12. Before dealing with the issue raised in WP(C) 763/2011, I shall first de al with the plea raised in the other two writ petitions, which is the purported illegality in conducting the selection. 13. The petitioners in both the writ petitions duly participated in the sele ction and it is only after publication of the select list and when they found th at their names are not included in the select list, they have approached this Co urt alleging malpractices in the selection. As in the first writ petition i.e. W P(C) 763/2011, the selected candidates are not party respondents in both the wri t petitions. Be that as it may, let us examine what is the ground on which the w rit petitions are structured. 14. According to the petitioners, they did well in the physical test and acc ordingly were also called for the interview. In paragraph 8 of the Writ Petition being WP(C) 1145/2011, it has been stated that the four candidates named therei n, have been illegally selected, inasmuch as, the first candidate out of the sai d four candidates did not conform to the requirement of physical fitness and the remaining 3(three) although did not appear in the physical test but they were c alled for the viva-voce test. The candidates named are Md. Babajul Haque, Md. Mo nsur Ali, Md. Sirajul Haque and Md. Abu Nasar Seikh. However, they have not been made party respondents in the writ petition. 15. The above plea raised in the WP(C) 1145/2011 has also been raised genera lly in WP(C) 1359/2011, without naming any one as to who are the candidates who have been selected illegally. Although the petitioners involved in both the writ petitions duly participated in the selection without raising any objection, the y have now come up with the other plea that in absence of publication of the emp loyment notice in the newspaper, the selection process is vitiated. 16. The respondents in their counter affidavit filed in WP(C) 763/2011 have denied any illegality in conducting the selection. Needless to say that in case of making any allegation against any person in a writ proceeding and for that ma tter in any proceeding, the said persons are always necessary party and in their absence, no adverse order can be passed. The plea of the petitioners that the s elected candidates being the product of back door entry, should also go through back door and they need not be heard, cannot be accepted for the simple reason t hat pursuant to the selection and inclusion of names in the select list, a right has accrued to them which cannot be interfered with condemning them unheard. It is also not a case of any back door entry. They have come through the particula r process of selection initiated by the respondents which has been called in que stion. 17. As to whether the particular process through which the selection was con ducted, is a valid one or not, is altogether a different issue but to condemn th e selected candidates who have come through the said process as back door entran ts, will be antithesis to the principles underlying fair play and equality. As has been held by the Apex Court in Probodh Verma Vs. State of UP (AIR 1985 SC 16 7), a High Court ought not to decide a writ petition under Article 226 of the Co nstitution of India without the presence of those who would be vitally affected by its judgement. It was observed that the High Court involved in that case ough t not to have proceeded to hear and dispose of the writ petition without insisti ng upon the teachers likely to be affected being made respondents to the writ pe tition. During the course of hearing when this aspect of the matter was pointed out, only submission made was that since the selected candidates are back door e ntrants, should also go through back door and they need not be heard. 18. It is in the aforesaid context, Mr. Dey, learned counsel for the petitio ner has placed reliance on the decision in Nanuram Yadav (Supra). In that case, the Apex Court was concerned with the question as to whether the appellant bank validly terminated the services of confirmed employees merely because report of Lakayukt mentioned irregularities in appointment. It was found that the allegati on that intimation was not given to Employment Exchanges was not borne out by th e records of the appellant bank. Interfering with the termination as invalid, t he Apex Court made certain observation in respect of illegal appointments. In pa ragraph 24, emphasizing on appointment through appropriate procedure so that the re is no breach of Article 14 and 16 of the Constitution of India, it was observ ed that any appointment made in violation of the mandatory provisions of the sta tute, the same would be vitiated. It was also observed that those who come by ba ck door should go through that door. 19. Above is not the case in hand. The respondents conducted the selection i nviting candidatures through the Employment Exchanges. As to whether the methodo logy adopted was a valid one or not, is altogether a separate issue but it canno t be said that the candidates selected on that basis are back door entrants requ iring them to go out through that door and condemning them unheard. 20. This now leads us to the main issue raised in WP(C) 763/2011, which is t hat because of non-publication of the advertisement in the newspaper and the sel ection being confined to only Employment Exchanges sponsored candidates, the sam e is vitiated. 21. In K.B.N. Viseswara Roa (Supra), the Apex Court held that restricting th e selection only to the candidates sponsored by Employment Exchanges was not pro per. It was further held that in case of requisitioning the names from Employmen t Exchangess, names should also be called for by publication in newspapers, havi ng wide circulation and display on Office Notice Boards or announcement on Radio , TV and Employment bulletin, conforming to the requirement of fair play and Art icle 14 & 16 of the Constitution of India. In that particular case, the admitted position was that the respondents were not sponsored through the Employment Exc hanges for selection to the posts sought to be filled up from the candidates spo nsored through the medium of Employment Exchanges. However, the respondents inde pendently applied for consideration of their claims but they were not considered . 22. Above is not the case on hand. Throughout the writ petition, there is no whisper that the petitioners were not sponsored by the Employment Exchanges. Th ere is also no whisper independent of such sponsorship, they had offered their c andidatures by submitting applications to the departmental authorities. In parag raph 2 of the writ petition, the petitioners have stated that they possess the b asic minimum qualification to be considered for the post of Excise Constables. T hereafter, they have discussed the development that took place towards conductin g the selection. However, nowhere, it has been contended that although their nam es were registered with the Employment Exchanges but the same were not forwarded or irrespective of such registration, they had offered their candidature direct ly. It is also not their case that they wanted to get their names registered wit h the Employment Exchanges but the same was denied. 23. In the instant case, apart from the fact that candidatures were invited through the Employment Exchanges, the notice dated 16.9.2010 was also published in local dailies clearly mentioning therein that 98 (ninety eight) posts of Exci se Constables under Excise Department would be filled up and that interested can didates could contact the concerned local Employment Exchangess to sponsor their names. It is not the case of the petitioners that in response to the said noti ce, they had contacted the Employment Exchangess to sponsor their names. In fact , the petitioners have also indicated about the said notice dated 16.9.2010 whil e making the statement in paragraph 5 that no public notice or advertisement, wa s ever issued in any manner. According to them, it was on enquiry they could com e to know about the issuance of the said notice dated 16.9.2010, however, there is no indication in the writ petition as to when they could come to know about t he said notice dated 16.9.2010. 24. Above being the position, the plea of the petitioners that the employmen t notice was not published in the newspaper is wholly incorrect. Having regard t o the fact that the notice dated 16.9.2010 was published in newspaper, the petit ioners ought to have responded to the same by taking necessary follow up action but they did not do anything in the matter and now after the entire process of s election is over with the publication of the select list, they have come to the Court taking the aforesaid plea. Had it been a case of offering candidatures ind ependent of the employment Exchanges sponsorship or denial of such sponsorship a nd / or registration with the Employment Exchanges for the purpose of sponsorshi p, things would have been different. However, this is not the case of the petiti oners. Situated thus, the plea of the petitioners cannot be accepted. 25. For all the aforesaid reasons, the writ petitions are devoid of any meri t and accordingly, they are dismissed. 26. Before parting with the case records, it would be appropriate to place o n record that as emphasized by the Apex Court in K.B.N. Viseshwara Roa(Supra), i t should be mandatory for the requisitioning authority /establishment to intimat e the Employment Exchanges and Employment Exchanges should sponsor the names of the candidates to the requisitioning Department for selection strictly according to the seniority and reservation, as per requisition. In addition, the appropri ate department or undertaking or establishment should call for the names by publ ication in newspapers having wider circulation and also display in their office notice boards or announcement in Radio, TV and Employment News Bulletin and than 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 matte r of employment would be available to all eligible candidates. 27. In the departmental communications towards filling up of 98 posts of Con stables, a direction was issued to conduct the selection taking note of the Apex Court decision report in 2006(4)SCC 1 (Secretary, State of Karnataka Vs. Umadev i (III) and others), some of the observations made in the said judgement are quo ted below :- 2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our con stitutional scheme envisages employment by the Government and its instrumentalit ies on the basis of a procedure established in that behalf. Equality of opportun ity is the hallmark, and the Constitution has provided also for affirmative acti on to ensure that unequals are not treated as equals. Thus, any public employmen t has to be in terms of the constitutional scheme. 6. The power of a State as an employer is more limited than that of a priva te employer inasmuch as it is subjected to constitutional limitations and canno t be exercised arbitrarily (See Basu’s Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the p urpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Un ion or any of the States. That Article contemplates the drawing up of a procedur e and rules to regulate the recruitment and regulate the service conditions of a ppointees appointed to public posts. It is well acknowledged that because of thi s, the entire process of recruitment for services is controlled by detailed proc edures which specify the necessary qualifications, the mode of appointment, etc. If rules have been made under Article 309 of the Constitution, then the Governm ent can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vac ancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers . Though this Act may not oblige an employer to employ only those persons who h ave been sponsored by employment exchanges, it places an obligation on the emplo yer to notify the vacancies that may arise in the various departments and for fi lling up of those vacancies, based on a procedure. Normally, statutory rules ar e framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statuto ry rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure a nd the right of equality conferred on civil servants under the Constitutional sc heme. It may even amount to negating the accepted service jurisprudence. Therefo re, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on th e rules so framed. 43. Thus, it is clear that adherence to the rule of equality in public emplo yment is a basic feature of our Constitution and since the rule of law is the co re of our Constitution, a Court would certainly be disabled from passing an orde r upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Const itution. Therefore, consistent with the scheme for public employment, this Cour t while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualifie d persons, the same would not confer any right on the appointee & & & & & &. 28. In Binod Kumar Gupta Vs. Ram Ashray Mahoto reported in AIR 2005 SC 2103, the Apex Court observed thus :- The \advertisement\ was no ’advertisement’ as required by the High Court. Witho ut adequate notice no fair opportunity was given to others who might have applie d. & & & & & & & & & &.. & & 29. In case of confining the selection and appointment only to the Employmen t Exchanges sponsored candidates, the same naturally deprive many eligible candi dates, whose names are either not registered with the Employment Exchanges or ar e not sponsored by the Employment Exchanges. This is the common knowledge that e ven if a candidate is registered with the Employment Exchanges, unless an extra effort is made, his name may not be sponsored. It is precisely the reason as to why in K.B.N. Viseshwara Roa (Supra), the Apex Court held thus :- 6. Having regard to the respective contentions, we are of the view that co ntention of the respondents is more acceptable which would be consistent wi th the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidates are unable to have the manes sponsored, thou gh their names are either registered or are waiting to be registered in the empl oyment Exchanges with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employmen t Exchanges. Under these circumstances, many a deserving candidate are 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 Department s for selection strictly according to seniority and reservation as per requisiti on. In addition the appropriate Department or undertaking or establishment shou ld call for the manes by publication in the newspapers having wider circulati on and also display on their office notice boards or announce on radio, te levision and employment news-bulletins: and then consider the cases of all th e 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 avai lable to all eligible candidates. 30. In the instant case, it being not a case