ARUN KUMAR NAYAKversusUNION OF INDIA AND ORS.

A                            ARUN KUMAR NA YAK
                                      v.
                           UNION OF INDIA AND ORS.

                              SEPTEMBER '.10, 2006

B             [H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.]


          Service Law:

          Selection-Requisition sent to employment exchange for filling up posts
C   -Employment exchange sponsoring list of candidates-Subsequenrly
    corrigendum issued for wiJ·~r publicity of posts by public notification -
    Candidates applied pursuant lo public notification blll not considered by
    Departme/1/--Candidature uf only one person from list sponsored by
    employmenl exchange found to be complete who was considered and selected-
D   Selection challenged -Held, there was no element of selection and the process
    of selection 11·as a mocke1:i· - Tribunal correct(!' quashing selection process
    and directing selection process afresh taking into consideration applications
    received fi'o1.i both Employment £rchange and candidates who applied pursua/1/
    to public notification.

E         On 18.9.1997 a requisition was made to the local Employment
    Exchange for the post of Extra Departmental Sub Post Master (EDSPM)
    stipulating that preference would be given to ST/SC Candidates.
    Employment Exchange sponsored a list of 40 candidates including name
    of respondent No.4 who belonged to General Category. Subsequently,
F   corrigendum was issued on 19.8.1998 requiring public Notification having
    wider publicity along with the requisition made to the Employment
    Exchange in terms of directions issued in the case of Excise Department
    Malkapatnam, Krishna Districl, A.P. v. K.B.N. Visweshwara Rao and Ors..
    1199616 SCC 216. On 9.9.1998 a public Notification inviting applications
    was issued stipulating that if number of 3 eligible candidates belonging to
G   ST Community did not offer candidature, the vacancy shall be offered to
    candidates belonging to OBC and SC candidates respectively, in order of
    deficiency in representation. Pursuant to public Notification appellant
    applied for the post as an OBC candidate. Candidates including appellant,
    who applied pursuant to advertisement were eliminated by respondent

H                                        404
                           ARUN KUMAR MAY AK r. U.0.1.                         405
      No.2, Supdt. of Post Offices, on the ground that since recruitment process      A
      had already commenced pursuant to requisition made to Employment
      Exchange on 18.9.1997, public Notification issued on 9.9.1998 inviting
      applications was superfluous. and unnecessary. Out of 40 candidates
      sponsored by Employment Exchange, only 7 candidates submitted
      applications when called upon to do so out of which 6 were disqualified         B
      as they failed to produce all necessary documents. The candidature of only
      respondent No.4 was considered who was selected on 15.10.1998.
                             •   .....
                                    . . '
                                            .

            App.ellant challe!lged selecti.on of respondent No.4 before Central
      Administrative Tribunal (CAT). Tribunal quashed entire selectiOn process
      and directed respondent department to conduct selection process afresh          C
      and to consider aH applications received from both Employment Exchange.
      and the candidates who submitted applications pursuant to public
      Notification dated 9.9.1998 on merit. However, High Court set aside the
      order of Tribunal and confirmed appointment of respondent No.4: Hence
      this appeal.
                                                                                      D
            Allowing the appeal, the Court

           HELD :I. The Selection Committee considered only the case of 4th
     respondent whose candidature according to the Committee was complete
     in all respects and he was selected subsequently. Six candidates who
     applied pursuant to the public Notification were disq.ualified. The stand E
     of the department was correctly rejected by the Tribunal. The Tribunal
     was of the view that there was no element of choice before the department
     since the only candidate remained to be conside.red was the 4th ·
     Respondent. There was no element of selection. The process of selection
     was a mockery. [408-D, E, Fl                                              F
             2. Intimation to the Employment Exchange about the vacancy and
       candidates sponsored from the Employment Exchange is mandatory. This
       Court has held that in addition and consistent with the principle offair
     . play, justice and equal opportunity, the appropriate department or
       establishment should also call for the names by publication in the             G
       newspapers having wider circulation, announcement on radio, television
-·     and employment news bulletins and consider all the candidates who have
      applied. Th is view was taken to afford equal opportunity to all th~ eligible
      candidates in the matter of employment. The rationale behind such
      direction is also consistent with the sound public policy that wider the
      opportunity of the notice of vacancy by wider publication .in the               H
    406                       St:PRL'.\IE COliRl REl'OI~ IS i2006J Sl'l'I' 6 S.CR.

A   newspapers. radio, television and employment nens bulletin. the better
    candidates with better qualifications are attracted, so that adequate choice~
    arc made available and the best candidates would be selected and
    appointed to subserve the public interest better. 1410-C, D, E, Fl

          t.~rdse S11peri11te11dem. • ,\lulkupatnum, Krishna District, A.P. v. K.B ..'1-.
B   I 1s•1e.1/111aru Rua and Ors.. 1199616 sec 216 followed.

         c·nion of India v. N.Hargopal. 119871 3 SCC 308 and Delhi
    Development Horticulture Employees' Union v. Delhi Administration. Delhi,
    1199214sec,99, referred to.

C         Arun Tewari v. Zila .\4ansuvi Shikshak Sangh, !19981 2 SCC 332,
    distinguished.

          3. In the Notification dated 9.9.98 the applications were invited from
    the intending candidates belonging to ST community for the posts. It was
D   also stipulated in the advertisement that if a minimum of three eligible
    candidates belonging to the ST community do not offer their candidature,
    the vacancy in question will be treated as unreserved and offered to the
    candidates belonging to the other reserved communities in order of
    deficiency in representation - OBC Community and SC community. The
    appellant belongs to OBC. Admittedly, the 4th respondent belongs to
E   general category. Even otherwise, he could not have been selected,
    notwithstanding the availability of candidates from other reserved
    category like OBC and SC community. 1411-D, E, Ff

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2262 of2005.

F         From the Judgment and Order dated 13.2.2003 of the High Court of
    Orissa at Cuttack in O.J.C. No. 6122.12000.

         M.N. Krishnamani. Soumyajit Pani, Chittaraajan Panda, Vipin K. Saxena
    and Ansar Ahmad Chaudhary for the Appellant.

G        K.P. Pathak. A.S.G. (N.P). Harish Chandra, Na\in Prakash. Shailender
    Shanna. V.K. Verma. Shreekant N. Terdal. Jamshed Bey and Parmanand
    Gaur for the Respondents.

          The Judgment of the Court was delivered by

H         H.K. SEMA, J. This appeal is directed against the judgment and order
             ARUN KUMAR MA YAK v U 0.1. [I IK.SEMA. J.]                   407
dated 13.02.2003 of the High Court of Orissa in OJC No. 6122 of 2000              A
whereby the order dated 6.8.1999 passed by the Central Administrative
Tribunal (hereinafter the Tribunal) in O.A.No.606 of 1998 was set aside.

       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             B
requisition was made to the local Employment Exchange. It was stipulated
that prefrrence would be given to ST/SC candidates. Pursuant to the
adve11isement 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    C
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 Superinlendenl Mafkapatnam, Krishna District. A.P. v. KB.N
Visll'eslrn·ara Rao and Ors., [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 thai if a minimum number of 3 eligible   D
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
iii the prescdbed application format along with the requisite documents.          E
       It may be mer<tioned 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 F
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 G
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.                                              H
     408                    SUPREME COURT REPOR rs [20061 Sl;pp 6 S.C.R.

A        Aggrieved thereby. the present appellant challenged the selection of -!th
  respondent by filing 0.A.606/98 before the Central Administrative Tribunal.
  praying inter ulia 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
B 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
C 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
D being considered, six candidates did not submit all the necessary docum.:nts
  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 respects and he was selected
  subsequently. The reasoning of the department was that issuing of public
E 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,
F correctly. The Tribunal was of the vkw that rhere was no element of choice
  before the department since the oniy candidate remained to be considered
  was the 4th Respondent. On this reasoning, the Tribunal st:t aside the selection
  and appointment of the 4th respondent. We fully subscribe to the views of
  the Tribunal.

G       In compliance of the direction of the Tribunal the appointment of the
  4th respondent \~as terminated on 3.5.2000. A fresh selection was held on
  15.5.2000 in which the total numbc; 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 mad.: in
H pursuance of the public notification dated 9.9.98 were considered. In rhat
                ARUN KUMAR M.AYAK v. U.0.1. [H.K. SEMA, J.)                     409
selection the present appellant, Arun Kumar Nayak, was selected and the 4th             A
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. t 0.1998 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            B
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 v.           C
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,
Developmenl Horlicullure Employees' Union v. Delhi Adminislralion, Delhi                D
[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 Supdl. Malkapatnam v. K.B.N.
Visweshwara Rao, [ t 996] 6 SCC 2 t 6, wherein Hargopal (supra) was
considered and distinguished, was placed before the Division Bench of the               E
High Court but the High Court brushed it aside by observing that it was
distinguishable on the basis of special facts of that case.

      In Visweshwara Rao (supra) a three Judge Bench of this Court after
considering Hargopal (supra) held in paragraph 6 as under:-
                                                                                        F
        "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                G
        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            H
    410                      SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A           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
B           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
C           candidates."

          This Court in Visweshwara Rao (supra), therefore, held that intimation
    to the Employment Exchange about the vacancy and candidates sponsored
    from the Employment Exchange is mandatory. This Court also held that in
    addition and consistent with the principle of fair play, justice and equal
D   opportunity, the appropriate department or establishment should also call for
    the names by publication in the newspapers having wider circulation.
    announcement on radio, television and employment news bulletins and
    consider all the candidates who have applied. This view was taken to afford
    equal opportunity to all the eligible candidates in the matter of employment.
E   The rationale behind such direction is also consistent with the sound public
    policy that wider the opportunity of the notice of vacancy by wider publication
    in the newspapers, radio, television and employment news bulletin, the better
    candidates with better qualifications are attracted, so that adequate choices
    are made available and the best candidates would be selected and appointed
    to subserve the public interest better.
F
         In Arun Tewari v. Zila Mansavi Shikshak Sangh, (1998] 2 SCC 332,
  where to fill about 7000 posts of Assistant Teachers under a time-bound
  scheme (Operation Blackboard). statutory rules were amended and decision
  taken to fill up vacancies district wise by calling candidates from district
G employment exchanges, without involving the Selection Board, the Two Judge
  Bench of this Court held that in view of the exigency the method adopted in
  the given facts was not unfair. Although a reference was made to Visweshwara
  Rao (supra) but it was not even distinguished in Arun Tewari (supra). The
  decision of the two judge bench of this Court after considering Hargopal
  (supra), Delhi Development Hortic11/111re Employees Union (supra) and
H Visweshwara Rao (supra) held in paragraph 20 as under:-
                 ARUN KUMAR MA YAK>. U.0.1. [11.K. SEMA.J.)                _411
                                                                             ·-..._

          ~The next contention relates to inviting applications from employment       A
            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     B
            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 be.::ause advertisement was not issued. What is more
            important, in the special circumstances requiring a speedier process
            of selection and appointment, applications were invited tfirough
            employment exchanges for 1993 only. In this context, the special          C
            procedure adopted is not unfair."

Therefore, the decision by this Court in Arun Tewari {supra) is based on the
facts of that case, namely a time bound scheme and exigency of service. No
law has been laid down thereunder. But in the case of Visweshwara Rao
(supra) a three Judge Bench of this Court has laid down the law and that is           D
still holding the field.

     There is yet another reason for which the order of the High Court,
cannot be sustained. In the Notification dated 9.9.98 the applications were
invited from the intending candidates belonging to ST community for the
posts. It was also stipulated in the advertisement that if a minimum of three         E
eligible candidates belonging to the ST community do not offer their
candidature, the vacancy in question will be treated as unreserved and offered
to the candidates beloflging to the other reserved communities in order of
deficiency in representation OBC Community and SC community. The
appellant belongs to OBC. Admittedly, the 4th respondent belongs to general           F
category. Even otherwise, he could not have been selected. notwithstanding
the availability of candidates from other reserved category like OBC and SC
community.

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

A.K.T.                                                         Appeal allowed.