Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 589 (KAR)

L. G. GAUTHAM v. UNION OF INDIA

2005-09-12

C.R.KUMARASWAMY, S.R.NAYAK

body2005
S. R. NAYAK, J. ( 1 ) THE petitioner herein, before the. Central Administrative Tribunal, bangalore Bench, Bangalore (for short, 'the Tribunal'), assailed the action of the respondents in not selecting him to the post of Auditor, selection and appointment of the 5th respondent to the post of Auditor and selection and appointments of respondents 6 to 8 to the post of clerks. The Tribunal has dismissed the Original Application No. 571 of 2000 filed by the petitioner by its order dated 6th February, 2002 and the same is impugned in this writ petition. ( 2 ) THE Accountant General (Audit) I and II by issuing Employment notification published in the Employment News dated 28-12-1996 - 3-1- 1997 invited applications from Indian citizens of outstanding achievements in the field of sports for appointment to one post of clerk and four posts of auditors to serve in the office of the Accountant general (Audit) I and II. In pursuance of that notification the petitioner; 5th respondent and one B. M. Belliappa applied for the post of Auditor, whereas respondents 6 to 8 and three others applied for the post of clerk. While a graduate is eligible to be appointed as auditor, the minimum qualification for the post of clerk is a pass in sslc/matriculation. After subjecting the applicants to the tests the respondents appointed B. M. Belliappa and the 5th respondent herein, namely, Praveen G. Joshi to the post of auditor. Although, only one post of clerk was advertised, respondents appointed respondents 6 to 8 as clerks. ( 3 ) IT appears that on a previous occasion against the above appointments, the petitioner had preferred Writ Petition No. 35998 of 1998 under Articles 226 and 227 of the Constitution of India calling in question his non-selection and non-appointment to the post of auditor and appointment of the said B. M. Belliappa and the 5th respondent to the post of auditor and selection and appointment of respondents 6 to 8 as clerks. That writ petition was disposed of by a Division Bench of this court by its order dated 2nd June, 2000, marked as Annexure-J. A copy of the said order is produced at page 61 of the material papers. That writ petition was disposed of by a Division Bench of this court by its order dated 2nd June, 2000, marked as Annexure-J. A copy of the said order is produced at page 61 of the material papers. As could be seen from para 2 of the order, the petitioner gave up his challenge to the appointment of B. M. Belliappa and restricted his challenge to the selection and appointment of other respondents only. Writ Petition No. 35998 of 1998 was disposed of by this Court reserving liberty to the petitioner to challenge the appointment of respondents 5 to 8. ( 4 ) THE petitioner accordingly filed Original Application No. 571 of 2000 assailing the non-selection and non-appointment of the petitioner to the post of auditor and selection and appointment of 5th respondent to the post of auditor as well as selection and appointment of respondents 6 to 8 to the post of clerks. Various grounds were urged before the Tribunal in support of the application. It was contended that the respondents having advertised four posts of auditors ought to have made appointment to the advertised four posts of auditors and two of the advertised posts should not have been converted into posts of clerks and after such conversion, respondents 6 to 8 ought not to have been appointed as clerks and that in terms of the advertisement, only one appointment should have been made against the one advertised post of clerk. It was also contended that four auditors posts in terms of the advertisement were required to be filled only by sportsmen in the discipline of Hockey and one post of clerk is required to be filled by a person belonging to Table Tennis discipline; the 5th respondent, namely, shri Praveen G. Joshi does not belong to Hockey discipline, but, he belongs to Table Tennis discipline and therefore, though 5th respondent is a graduate, he ought not have been appointed to the post of auditor. ( 5 ) THE petition was contested by the respondents by filing reply statement. ( 5 ) THE petition was contested by the respondents by filing reply statement. The impugned action was supported by the respondents by contending that though four vacancies in the post of auditors and one post of clerk were advertised, the intendment was to select best sportsmen in the field of sports generally, and there was no inter se clarification between the sportsmen belonging to Hockey discipline and table Tennis discipline; the post of auditor and the post of clerk/typists are Group 'c' posts; in the test conducted by them, though the petitioner scored good marks in the field trial and interview, but he secured 10 out of 30 marks in the certificate category and when the assessment of the applicants for the post of auditors and clerks was done, the petitioner was found to occupy No. 5 position in the merit list and therefore, his non-selection to the post of auditor or for that matter to the post of clerk could not be faulted with. While claiming their power to make appointment in excess of what is advertised in any cadre, the respondents placed reliance on Rule 77 of the General Finance Rules. Out of the five best candidates, Mr. B. M. Belliappa and the 5th respondent were appointed to the post of auditor, because, they are graduates and the remaining 3 are appointed to the post of clerks, because, they are only SSLC pass. Respondents also relied upon the notification issxied by the office of the Comptroller and Auditor General of India, dated 31-8-1989 marked as Annexure-D with regard to the appointment of meritorious sports persons to Groups 'c' and 'd' posts and contended that the appointments are in accordance with the said notification. It was contended that as per the said circular, the appointment of meritorious persons could be made by direct recruitment to any post of Groups 'c' and 'd' and only restriction is that such appointment shall not exceed more than 5. It was also contended by the respondents that the assessment of the candidates for the post of auditors and clerks was done in accordance with the notification dated 9-7-1990 issued by the Comptroller and Auditor General of India by prescribing the maximum marks under different heads. It was also contended by the respondents that the assessment of the candidates for the post of auditors and clerks was done in accordance with the notification dated 9-7-1990 issued by the Comptroller and Auditor General of India by prescribing the maximum marks under different heads. ( 6 ) THE Tribunal having considered the rival contentions of the parties, though noticed that there was a deviation from the employment notification on the part of the respondents in making two appointments to the post of auditor and three appointments to the post of clerks in that since under the employment notification four vacancies for the post of auditors and only one post of clerk were notified, the Tribunal did not think it fit to interfere with the selection and appointment of the respondents 5 to 8 to the post of auditor and clerk in view of the notification Annexure-D, dated 31-8-1989 issued by the Comptroller and auditor General of India. The Tribunal is of the opinion that the above notification issued by the Comptroller and Auditor General of India confers discretion on the Appointing Authority to select meritorious persons as against the vacancies available in Group 'c' posts and since the post of auditor and the post of clerk form Group 'c' service, the appointment made to the post of auditor and to the post of clerk from among the applicants could not be faulted with. The Tribunal also has taken into account in the decision-making the relative superior merit of the respondents 5 to 8 in the field of sports. Resultantly, the Tribunal dismissed the application. Hence, this writ petition under Articles 226 and 227 by the aggrieved applicant. ( 7 ) WE have heard Sri T. R. Sridhar, learned Counsel for the petitioner and Sri Aravind Kumar, Additional Central Government Standing counsel for respondents 1 to 4. Respondents 5 to 8 though served with notice have remained unrepresented. ( 8 ) SRI Sridhar would reiterate the same contentions which were urged before the Tribunal. Defence arguments also were on similar lines as urged before the Tribunal. ( 9 ) HAVING heard the learned Counsels for the parties, we find one fatal flaw in the recruitment process which according to us vitiates the selection and appointment of respondents 6 to 8. Defence arguments also were on similar lines as urged before the Tribunal. ( 9 ) HAVING heard the learned Counsels for the parties, we find one fatal flaw in the recruitment process which according to us vitiates the selection and appointment of respondents 6 to 8. It is trite law that a recruiting agency can make appointments only to the advertised posts unless the statute concerned otherwise accords liberty to it to make appointments in excess of the advertised posts or in deviation of the number of vacancies notified. The notification issued by the office of the accountant General (Auditor) I and II does not leave any doubt in our mind that applications were called for from eligible candidates to fill up four posts of auditors and only one post of clerk. Right to apply and to be considered for appointment under the State is not an ordinary right but a constitutional right guaranteed under Articles 14 and 16 of the constitution of India. If the Recruiting Agency were to call for applications to fill up three vacancies in the posts of clerks and only two vacancies in the posts of auditors, the response from the eligible candidates would have been different. It is the right of the prospective applicant to apply for a post and it is equally his negative right not to apply for a post also depending upon number of vacancies available in various cadres. Secondly, it needs to be noticed that although the post of auditor and the post of clerk are Group 'c' posts, they are not equivalent posts by any stretch of imagination. The post of auditor undeniably is a superior post with a higher pay scale. The educational qualification, experience etc. , prescribed for the two posts are drastically and qualitatively different. The recruitment to the post of auditors and clerks is governed by Rules framed by the President of India by virtue of the power conferred on the President under Article 148 of the constitution of India. Therefore, we find a fatal flaw on the part of recruitment agency in the initial step itself to convert two advertised posts of auditor into two more posts of clerk in addition to one post of clerk advertised. Therefore, we find a fatal flaw on the part of recruitment agency in the initial step itself to convert two advertised posts of auditor into two more posts of clerk in addition to one post of clerk advertised. ( 10 ) HAVING said it, we should advert to the contention of the learned counsel for the petitioner tnat the four posts of auditors should have been filled only by sportsmen from the Hockey discipline. To sustain the above argument, we do not find any substantive material before us. The above contention is grounded on the admission made by the respondents in the reply statement filed by them in the O. A. earlier filed by the petitioner. A copy of the said reply statement is produced at pages 136 to 150 of the paper book. It is true that in para 3 of the said reply statement, it is stated that four posts of auditors are meant for Hockey discipline and one post of clerk meant for Table Tennis. This very document was produced before the Tribunal in the present O. A. No. 571 of 2000 also by the petitioner in support of his claim. But in the reply statement filed by the respondents in O. A. No. 571 of 2000, that claim is squarely denied and it was contended that as per the circular instructions, five posts are earmarked to the best sportsmen and there is no inter se distribution of posts among sportsmen belonging to various disciplines. What we find is factual assertion and factual denial and therefore, the safe thing for us is to go by the terms of employment notification in pursuance of which the appointments are made. ( 11 ) SRI Sridhar would submit that the Hockey and Table Tennis sports discipline are mentioned one after the other in the employment notification after mentioning temporary posts of auditors/clerks-typists in the office of the Accountant General (Auditor) I and II and therefore, it is reasonable to construe that four temporary posts of auditors are required to be filled by sportsmen in Hockey discipline and one post of clerk-cum-typist should be filled by sportsman from Table Tennis discipline. The suggested course is not acceptable to us. It could very well be said that the advertised posts are required to be filled by the sportsmen belonging to Hockey as well as Table Tennis disciplines. The suggested course is not acceptable to us. It could very well be said that the advertised posts are required to be filled by the sportsmen belonging to Hockey as well as Table Tennis disciplines. If such interpretation is plausible one, there is no good reason for us to think that as per the notification, four posts of auditors should be filled exclusively from sportsmen belonging to Hockey discipline and only one post of clerk is required to be filled by a sportsman belonging to Table tennis discipline. There is no need for us to dilate on this aspect, because, the notification dated 31-3-1989 issued by the Comptroller and auditor General of India, as well as the letter of the office of the comptroller and Auditor General of India dated 23rd February, 1993 cumulatively would go to show that the appointments have to be made out of the best sportsmen in both the disciplines. Therefore, the Tribunal is justified in rejecting the above contention urged on behalf of the petitioner. In that view of the matter, the appointment of the 5th respondent to the post of auditor is not vitiated simply because he is a sportsman belonging to Table Tennis discipline and not Hockey discipline. In terms of merit, it is pointed out by the respondents that in the test condticted by them, the 5th respondent has secured more marks in aggregate than the petitioner. Therefore, no ground is made out to disturb the appointment of the 5th respondent. ( 12 ) SINCE we have held that the action of the respondents in converting the two advertised posts of auditors is illegal and unauthorised, on that count itself, the selection and appointment of respondents 6 to 8 is vitiated. Nevertheless, since there is no challenge by any one else except by the petitioner to the selection and appointment of respondents 6 to 8 as clerks and since respondents 6 to 8, we are told, have been serving as clerks since 1997 onwards till date, there is no need for us to annul the appointment of all the three appointees-respondents 6 to 8. At the same time, we cannot sustain the selection and appointment of all the respondents 6 to 8, because, we cannot issue a direction to the respondents to appoint the petitioner to the post of auditor if there is no vacancy in the post of auditor. At the same time, we cannot sustain the selection and appointment of all the respondents 6 to 8, because, we cannot issue a direction to the respondents to appoint the petitioner to the post of auditor if there is no vacancy in the post of auditor. Since two posts of auditors have been converted into two posts of clerks and against those two posts respondents 6 and 7 have been appointed, it becomes imperative to annul the appointment of one of them and thereby make a provision for appointment of the petitioner to the post of auditor. ( 13 ) SRI Aravind Kumar, learned Standing Counsel, today, placed before us the marks list secured by respondents 6, 7 and 8 in the tests conducted by the respondents. Each candidate has been assessed under three heads, namely, Field trial, Certificate and Interview and in aggregate the 6th respondent has secured 59 marks, 7th respondent 57 marks and 8th respondent 64 marks. Among the three candidates, 7th respondent is the least meritorious and, therefore, he has to make way for appointment of the petitioner to the post of Auditor. ( 14 ) IN the result and for the foregoing reasons, we allow the writ petition in part and set aside the order of the Tribunal dated 6th february, 2002 passed in Original Application No. 571 of 2000 and set aside the selection and appointment of the 7th respondent, namely, Sri l. G. Milan to the post of clerk. We direct the respondents to appoint the petitioner to the post of auditor in pursuance of his application made in response to the employment notification issued by the Accountant general (Audit) I and II and published in the Employment News dated 28-12-1996/3-1-1997 within a period of one month from the date of receipt of the copy of this order. However, this order shall not come in the way of the respondents considering the case of the 7th respondent for appointment to the post of clerk, if there exists any vacancy in the post of clerks, under the sports quota, in accordance with law. No costs. --- *** --- .