Arun Kumar Nayak vs Union Of India & Ors

We have heard the parties at length. The present controversy relates to the appointment of Extra Departmental Sub Post Master ( in short EDSPM ) at Ratnagiri, now redesignated as, "Gramin Dak Sewak". On 18.9.1997 a requisition was made to the local Employment Exchange. It was stipulated that preference would be given to ST/SC candidates. Pursuant to the advertisement the Employment Exchange sponsored a list of 40 candidates including the 4th respondent herein Sri Chittaranjan Kar. A corrigendum was issued on 19.8.1998 requiring public Notification having wider publicity along with the requisition to be made to the Employment Exchange. This corrigendum was issued in terms of the directions issued by this Court in the case of Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and others 1996(6) SCC

216. On 9.9.1998, the public Notification was issued inviting applications from intending candidates. In the said Notification, it was stipulated that if a minimum number of 3 eligible candidates belonging to ST community do not offer their candidature, the vacancy in question shall be offered to the candidates belonging to OBC and SC candidates respectively, in order of deficiency in representation. Pursuant to Public Notification the appellant applied for the post as an OBC candidate in the prescribed application format along with the requisite documents.

It may be mentioned here that out of 40 candidates sponsored by the Employment Exchange, only 7 candidates submitted their application forms when called upon to do so. Thus, 33 were eliminated. Out of the balance 7 candidates, six candidates were again disqualified since they did not produce all the necessary documents. The candidature of only the 4th respondent was considered and he was selected on 15.10.1998. There was no element of selection. The process of selection was a mockery. The candidates including the appellant, who applied pursuant to the advertisement, were eliminated by Respondent No.2 Supdt. of Post Offices, Cuttack, North Division, on the ground that since the recruitment process had already commenced pursuant to the requisition made to the Employment Exchange on 18.9.1997, the public Notification issued on 9.9.98 inviting applications was superfluous and unnecessary. On this reasoning, the 2nd Respondent was of the view that the 4th respondent who is a general category candidate was the only eligible candidate amongst the applicants who applied pursuant to the requisition made to the Employment Exchange. Aggrieved thereby, the present appellant challenged the selection of 4th respondent by filing O.A.606/98 before the Central Administrative Tribunal, praying inter alia for quashing the selection process and directing the Department to consider the petitioner's application along with others on merits. The learned Tribunal passed an interim order that any appointment made would be subject to the final result of the O.A. Pursuant to the aforesaid interim order, the department issued a letter of appointment in favour of respondent No.4 on 15.1.1999, with a rider that appointment was subject to the final result of O.A. Thereafter, by an Order dated 6.8.1999, the Tribunal allowed the O.A. and quashed the entire selection process in question with a direction to the respondent department to conduct a selection process afresh and consider all the applications on merit, received both from the Employment Exchange and the candidates who submitted applications pursuant to the public Notification dated 9.9.98 including the application of the appellant. The Tribunal after hearing the parties has held that after examining the records of the selection file in original, out of seven candidates who were being considered, six candidates did not submit all the necessary documents and they were disqualified. The Tribunal also found that the Selection Committee considered only the case of 4th respondent whose candidature according to the Committee was complete in all respect and he was selected subsequently. The reasoning of the department was that issuing of public Notification was wrong as the circular of the Director General, Posts, providing for simultaneously calling for names from Employment Exchange and for issuing public Notification was not applicable in respect of the cases where selection procedure had already been taken on hand and therefore six candidates who applied pursuant to the public Notification were disqualified. The stand of the department was rejected by the Tribunal and, in our view, correctly. The Tribunal was of the view that there was no element of choice before the department since the only candidate remained to be considered was the 4th Respondent. On this reasoning, the Tribunal set aside the selection and appointment of the 4th respondent. We fully subscribe to the views of the Tribunal. In compliance of the direction of the Tribunal the appointment of the 4th respondent was terminated on 3.5.2000. A fresh selection was held on 15.5.2000 in which the total number of 13 candidates which included the application made pursuant to the sponsored list prepared by the Employment Exchange including that of 4th respondent and the applications made in pursuance of the public notification dated 9.9.98 were considered. In that selection the present appellant, Arun Kumar Nayak, was selected and the 4th respondent was not selected. This would show that the 4th respondent was not eligible even at the time when his case was first considered by the Selection Committee on 15.10.1998 and recommended for appointment. However, by the impugned order in OJC No. 6122 of 2000 the High Court has set aside the order dated 6.8.99 of the Tribunal and confirmed the appointment of the 4th respondent. This Court issued notice on 28.3.2003 and the order of the High Court was stayed. It is stated that in view of the stay order granted by this Court the appellant is still continuing in the post. The High Court upset the reasoning of the Tribunal by relying on the decision of this Court in Union of India vs. N.Hargopal (1987) 3 SCC 308, where it has been held that the Government instructions enjoying the field of choice should in the first instance, be restricted to candidates sponsored by the Employment Exchanges, and the same was upheld as not offending Articles 14 and 16 of the Constitution. The High Court has also relied on the decision of this Court in the case of Delhi Development Horticulture Employees' Union vs. Delhi Administration, Delhi (1992) 4 SCC 99, where this Court approved the recruitment through Employment Exchanges as a method of preventing malpractices. Subsequent decisions of this Court rendered in Excise Supdt. Malkapatnam vs. K.B.N.Visweshwara Rao (1996) 6 SCC 216, wherein Hargopal (supra) was considered and distinguished, was placed before the Division Bench of the High Court but the High Court brushed it aside by observing that it was distinguishable on the basis of special facts of that case.

For the aforestated reasons, the impugned order of the High Court dated 13.02.2003 passed in OJC No.6122 of 2000 is hereby set aside. The appeal is allowed. Writ Petition filed by the 4th respondent stands dismissed. No costs.