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2003 DIGILAW 2379 (ALL)

Ram Prasad v. Union of India (UOI)

2003-10-08

B.S.CHAUHAN, R.C.PANDEY

body2003
B. S. CHAUHAN, J. ( 1 ) THIS writ petition has been filed against the judgment and order dated 16th July, 2003, passed by the learned Central Administrative Tribunal setting-aside the appointment of the present petitioner and issuing direction to the respondents to reconsider the whole case including the candidature of the respondent No. 4 in this petition. ( 2 ) FACTS and circumstances, giving rise to this case are that one vacancy of EDDA-EDMC, shukulpur (Bharatganj), Allahabad became vacant on 5. 12. 1996. Three names were requisitioned from the Employment Exchange, Allahabad in 1997. However, the department considered it proper to invite the applications from the open market. For the same post advertisement was issued in the local newspapers having wide circulation in the area. In response thereto, large number of people had applied and there applications were considered. ( 3 ) CANDIDATURE of the present respondent No. 4 was not considered for the reason that he did not apply in pursuance of the. fresh advertisement in the local news papers and the candidature of candidates whose names had been sent by the Employment Exchange were not considered. The present petitioner had applied in pursuance of the advertisement in the local newspapers as well as his name had been sponsored by the Employment Exchange. After due selection, present petitioner stood appointed. Thus, being aggrieved, the present respondent No. 4 had challenged his appointment. The application has been allowed by the learned Tribunal. Hence, this petition. ( 4 ) SHRI A. S. Diwakar, learned Counsel for the petitioner has submitted that as the respondent No. 4 has not applied as fresh in pursuance of the advertisement in the local newspapers, his candidature has rightly been rejected by the authority concerned at the time of appointing the petitioner and there was no justification for the learned Tribunal to set-aside the appointment of the petitioner. ( 5 ) ON the contrary, Shri Ravi Prakash Srivastava, appearing for respondent Nos. 1 to 3 had submitted that it was the solemn duty of the department to consider also the candidature of the candidates who had applied in pursuance of the advertisement in the local newspapers along with those whose names had been sponsored by the Employment Exchange and therefore, no fault can be found with the judgment and order of the Tribunal and no interference is called for. ( 6 ) WE have considered the rival submissions made by the learned Counsel for the parties and perused the record. Article 16 of the Constitution provides for the guarantee of equality in case of public employment subject to the reservation policy. In State of Haryana v. Piaira Singh, AIR 1992 SC 2130 , the Apex Court held that even for ad-hoc or temporary vacancy, appointment should be made in consonance with the requirement of Article 16 of the Constitution. There must be a notice published in appropriate manner calling for applications and all those, who apply in response thereto, should be considered fairly. However, in the said case, employment by requisitioning the names from Employment Exchange was also suggested. ( 7 ) IN Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi, AIR 1992 SC 789 , the Honble Supreme Court approved the employment through Employment exchanges as it may curb the corruption and nepotism and prevent the malpractices. In Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors. , AIR 1996 sc 976 , the Honble Supreme Court observed, that "article 14 read with Article 16 (1) of the constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. " Therefore, no post under the State should be filled up in any manner which may not give chance to an eligible candidate to apply. Similar view had been reiterated in jai Narain Ram v. State of U. P. and Ors. , AIR 1966 SC 703. ( 8 ) IN Prabhat Kumar Sharma and Ors. v. State of U. P. and Ors. , (1996) 10 SCC 62 and J. A. S. Inter College v. State of UP. , (1996) 10 SCC 71 , the Honble Supreme Court, while interpreting the provisions of U. P. Secondary Education Service Commission (Removal of Difficulties)Order 1981, held that even if the short term vacancy is to be filled up on ad hoc basis, the post has to be advertised in two local newspapers to meet the requirement of Article 16 of the constitution. ( 9 ) IN Union of India and Ors. v. N. Har Gopal and Ors. ( 9 ) IN Union of India and Ors. v. N. Har Gopal and Ors. , AIR 1987 SC 1227 , the Honble supreme Court considered the issue of calling names from Employment Exchanges and observed as under : "it is evident that there is no provision in the Act which obliges an employer to make appointment through the agency of Employment Exchanges. Far from it, Section 4 (4) of the Act, on the other hand, makes it explicitly clear that employer is under no obligation to recruit any person through Employment Exchanges to fill in a vacancy merely because that vacancy has been notified under Section 4 (1) of Section 4 (2 ). . . . Insistence of recruitment through employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach every where applies equally to whatever advertising the vacancies is adopted. . . . Employment in Government departments should be through the medium of Employment Exchanges and it does not offend articles 14 and 16 of the Constitution. " ( 10 ) THE two Judges Benchs judgment in N. Har Gopal (supra) was reconsidered by a three judges Bench in Excise Superintendent, Malkapatnam v. K. B. N. Visweshwara Rao, (1996) 6 scc 216 and impliedly over-ruled the law laid down in N. Har Gopal. The Court observed as under :- "it is common knowledge that many a candidate is unable to have the name sponsored though their names are either registered or are waiting to be registered in the Employment Exchange, with the result that choice of selection is restricted to only such of candidates whose names come to be sponsored by the Employment Exchanges. 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 name of the candidate to the requisitioning department for selection strictly in accordance with the seniority and reservation, as per requisition. 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 name of the candidate to the requisitioning department for selection strictly in accordance with the 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 offices notice boards or announce on radio, television and employment news bulletin 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. " ( 11 ) THE issue came up again before the Honble Supreme Court in Arun Tiwari and Ors. v. Zila mansavi Shikshak Sangh, AIR 1998 SC 331, wherein the Apex Court considered the employment restricting the requisition of names through Employment Exchanges in a case of short-term project. The Court approved the method of employment "looking to the requirement of time bound scheme. " The Court held that in the special circumstances, requiring the speedier process of selection and appointment, applications through Employment Exchange may be permissible. In that case, the Honble Supreme Court, after considering the exigencies of the situation, held that filling up vacancies for a short term scheme, requisitioning the names from employment Exchange cannot be held to be unfair. ( 12 ) THE issue had again been considered in Arun Tiwari and Ors. v. Zila Mansavi Shikshak sangh, AIR 1998 SC 331, wherein the Honble Apex Court had held that if the authority does not have sufficient time to invite the applications from the open market, and appointment is required in grave urgency, in such a situation after recording the reasons for not inviting the applications from the open market, filling up the vacancy only by calling the names from the Employment exchange may be permissible. However, in Kishore K. Pati v. District Inspector of Schools, midnapore and Ors. , (2000) 9 SCC 405 and Subhash Chand Dhrupta and Anr. v. State of H. P. and Ors. , (2000) 10 SCC 82 , the Apex Court has held that the candidates whose names are sponsored by the Employment Exchange are entitled to be considered for the post. , (2000) 9 SCC 405 and Subhash Chand Dhrupta and Anr. v. State of H. P. and Ors. , (2000) 10 SCC 82 , the Apex Court has held that the candidates whose names are sponsored by the Employment Exchange are entitled to be considered for the post. ( 13 ) TO sum up, it is mandatory that every authority, whenever the vacancy occurs, should invite the applications from the Employment Exchange as well as from the open market and the candidature of all those who apply in pursuance of the said advertisement or whose names have been sent by the Employment Exchange. ( 14 ) IN the instant case, as the authority committed a mistake in not considering the candidature of the present respondent No. 4, the learned Tribunal has rightly set-aside the appointment of the present petitioner and has directed the authority to fill up the vacancy after considering the candidature as fresh. As the appointment of the petitioner itself had been in violation of the mandate enshrined in Articles 14 and 16 of the Constitution and as the authority failed to consider the candidature of the respondent No. 4, we do not see any ground to interfere with the impugned judgment and order passed by the learned Central Administrative Tribunal. Petition is devoid of merit and is accordingly dismissed. . .