JUDGMENT B.K. Sharma, J. 1. All the three writ petitions pertain to the claim of the Petitioners that they have been deprived of selection and appointment as Excise Constable because 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 the illegality committed in conducting the selection, more particularly, in the oral interview. 2. Although in WP (C) 763/2011, the 8(eight) Petitioners have also stated about 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 advertised in the newspaper is a valid one. Be it stated here that the selection was conducted from amongst the candidates sponsored by the Employment Exchanges. In the second writ petition, the four Petitioners who had participated in the selection process upon failure to qualify in the selection, have questioned the selection on the ground that some of the candidates who did not conform to the requirement of physical fitness and also those who did not even undergo the physical 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 the selection. 3. The Respondents have filed their counter affidavit in WP (C) 763/2011 highlighting the procedure of selection conducted. It has been denied that the selection 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 selection, 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 English newspaper and Agradoot, an Assamese newspaper. 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 English 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 Excise Department are circulated to all Employment Exchangess in the State to sponsore 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 Employment 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 the 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 sponsored by the Employment Exchanges. The said test was conducted by a panel of experts which consisted of one Sports Officer and one Medical Officer of the Government. The required criteria for the said fitness test are as under: Chest = 80cm (Normal) = 85cm (Expanded) Height = 162.56cm (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 published in local dailies on 5.1.2011. Thereafter, the test was held during the period from 8.1.2011 to 23.1.2011. The interview was conducted by a Selection Committee 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 in 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 joining reports on 14.2.2011 and some on 15.2.2011 but the Petitioners have disputed the same. 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 joining reports on 14.2.2011 and some on 15.2.2011 but the Petitioners have disputed the same. 8. Mr. S.S. Dey, learned Counsel arguing for the Petitioners in WP (C) 763/2011 placing reliance on the 3 (three) decisions of the Apex Court reported in Excise Superintendent v. K.B.N. Viseshwara Roa 1996 (6) SCC 216 ; Ashwani Kumar v. State of Bihar 1996 (7) SCC 577 and MP State Co-operative Bank Limited v. Nanuram Yadav 2007 (8) SCC 264 , submitted that the vacancies having not been notified in any newspaper and the selection having been confined only to the Employment 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 the Employment Notice. As regards the plea of non-joinder of necessary parties, the selected candidates being not party to the writ petition, he submitted that those 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 relating to "no notice", "no reasonable opportunity of being heard" etc. will have no 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 in WP (C) 1359/2011 while adopting the aforesaid argument advanced by Mr. Dey, also 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. Advocate General, Assam assisted by Mr. J. Patowary, learned Counsel appearing for the Respondents as well as Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate, submitted that all the writ petitions lack material, so as to call for an interference exercising writ jurisdiction. As regards the plea of requirement of publication of employment notice in the newspaper, they submitted that since the employment notice was published in the newspapers on 16.9.2010, all the Petitioners were well aware about the selection being conducted. Dealing with the argument advanced by Mr. As regards the plea of requirement of publication of employment notice in the newspaper, they submitted that since the employment notice was published in the newspapers on 16.9.2010, all the Petitioners were well aware about the selection being conducted. Dealing with the argument advanced by Mr. Dey, learned Counsel for the Petitioners in WP (C) 763/2011, Mr. Choudhury, 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 records pertaining to the selection which have been produced by the learned State Counsel during the course of hearing. 12. Before dealing with the issue raised in WP (C) 763/2011, I shall first deal 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 selection and it is only after publication of the select list and when they found that their names are not included in the select list, they have approached this Court alleging malpractices in the selection. As in the first writ petition i.e. WP (C) 763/2011, the selected candidates are not party Respondents in both the writ petitions. Be that as it may, let us examine what is the ground on which the writ petitions are structured. 14. According to the Petitioners, they did well in the physical test and accordingly 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 therein, have been illegally selected, inasmuch as, the first candidate out of the said 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 called for the viva-voce test. The candidates named are Md. Babajul Haque, Md. Monsur Ali, Md. Sirajul Haque and Md. Abu Nasar Seikh. However, they have not been made party Respondents in the writ petition. 15. The candidates named are Md. Babajul Haque, Md. Monsur 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 generally 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, they have now come up with the other plea that in absence of publication of the employment 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 matter 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 selected 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 that 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 particular process of selection initiated by the Respondents which has been called in question. 17. As to whether the particular process through which the selection was conducted, is a valid one or not, is altogether a different issue but to condemn the selected candidates who have come through the said process as back door entrants, will be antithesis to the principles underlying fair play and equality. As has been held by the Apex Court in Probodh Verma v. State of UP AIR 1985 SC 167 , a High Court ought not to decide a writ petition under Article 226 of the Constitution of India without the presence of those who would be vitally affected by its Judgment. As has been held by the Apex Court in Probodh Verma v. State of UP AIR 1985 SC 167 , a High Court ought not to decide a writ petition under Article 226 of the Constitution of India without the presence of those who would be vitally affected by its Judgment. It was observed that the High Court involved in that case ought not to have proceeded to hear and dispose of the writ petition without insisting upon the teachers likely to be affected being made Respondents to the writ petition. 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 entrants, 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 Petitioner 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 allegation that intimation was not given to Employment Exchanges was not borne out by the records of the Appellant bank. Interfering with the termination as invalid, the Apex Court made certain observation in respect of illegal appointments. In paragraph 24, emphasizing on appointment through appropriate procedure so that there is no breach of Article 14 and 16 of the Constitution of India, it was observed that any appointment made in violation of the mandatory provisions of the statute, the same would be vitiated. It was also observed that those who come by back door should go through that door. 19. Above is not the case in hand. The Respondents conducted the selection inviting candidatures through the Employment Exchanges. As to whether the methodology adopted was a valid one or not, is altogether a separate issue but it cannot be said that the candidates selected on that basis are back door entrants requiring 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 that because of non-publication of the advertisement in the newspaper and the selection being confined to only Employment Exchanges sponsored candidates, the same is vitiated. 21. 20. This now leads us to the main issue raised in WP (C) 763/2011, which is that because of non-publication of the advertisement in the newspaper and the selection being confined to only Employment Exchanges sponsored candidates, the same is vitiated. 21. In K.B.N. Viseswara Roa (Supra), the Apex Court held that restricting the selection only to the candidates sponsored by Employment Exchanges was not proper. It was further held that in case of requisitioning the names from Employment Exchangess, names should also be called for by publication in newspapers, having wide circulation and display on Office Notice Boards or announcement on Radio, TV and Employment bulletin, conforming to the requirement of fair play and Article 14 & 16 of the Constitution of India. In that particular case, the admitted position was that the Respondents were not sponsored through the Employment Exchanges for selection to the posts sought to be filled up from the candidates sponsored through the medium of Employment Exchanges. However, the Respondents independently 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. There is also no whisper independent of such sponsorship, they had offered their candidatures by submitting applications to the departmental authorities. In paragraph 2 of the writ petition, the Petitioners have stated that they possess the basic minimum qualification to be considered for the post of Excise Constables. Thereafter, they have discussed the development that took place towards conducting the selection. However, nowhere, it has been contended that although their names were registered with the Employment Exchanges but the same were not forwarded or irrespective of such registration, they had offered their candidature directly. It is also not their case that they wanted to get their names registered with 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 Excise Constables under Excise Department would be filled up and that interested candidates could contact the concerned local Employment Exchangess to sponsor their names. 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 Excise Constables under Excise Department would be filled up and that interested candidates 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 notice, 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 while making the statement in paragraph 5 that no public notice or advertisement, was ever issued in any manner. According to them, it was on enquiry they could come 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 the said notice dated 16.9.2010. 24. Above being the position, the plea of the Petitioners that the employment notice was not published in the newspaper is wholly incorrect. Having regard to the fact that the notice dated 16.9.2010 was published in newspaper, the Petitioners 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 selection 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 independent of the employment Exchanges sponsorship or denial of such sponsorship and/or registration with the Employment Exchanges for the purpose of sponsorship, things would have been different. However, this is not the case of the Petitioners. Situated thus, the plea of the Petitioners cannot be accepted. 25. For all the aforesaid reasons, the writ petitions are devoid of any merit and accordingly, they are dismissed. 26. Before parting with the case records, it would be appropriate to place on record that as emphasized by the Apex Court in K.B.N. Viseshwara Roa (Supra), it should be mandatory for the requisitioning authority /establishment to intimate 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 appropriate department or undertaking or establishment should call for the names by publication 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 sub-served. The equality of opportunity in the matter of employment would be available to all eligible candidates. 27. In the departmental communications towards filling up of 98 posts of Constables, a direction was issued to conduct the selection taking note of the Apex Court decision report in Secretary, State of Karnataka v. Umadevi (III) and Ors. 2006 (4) SCC 1 , some of the observations made in the said judgment are quoted 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 constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment 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 private employer inasmuch as it is subjected to constitutional limitations and cannot 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 purpose 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 Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedures which specify the necessary qualifications, the mode of appointment, etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) 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 have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory 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 and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, 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 the rules so framed. 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order 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 Constitution. Therefore, consistent with the scheme for public employment, this Court 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 qualified persons, the same would not confer any right on the appointee.... 28. In Binod Kumar Gupta v. Ram Ashray Mahoto AIR 2005 SC 2103 , the Apex Court observed thus: The "advertisement" was no 'advertisement' as required by the High Court. Without adequate notice no fair opportunity was given to others who might have applied.... 29. 28. In Binod Kumar Gupta v. Ram Ashray Mahoto AIR 2005 SC 2103 , the Apex Court observed thus: The "advertisement" was no 'advertisement' as required by the High Court. Without adequate notice no fair opportunity was given to others who might have applied.... 29. In case of confining the selection and appointment only to the Employment Exchanges sponsored candidates, the same naturally deprive many eligible candidates, whose names are either not registered with the Employment Exchanges or are not sponsored by the Employment Exchanges. This is the common knowledge that even 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 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 candidates are unable to have the manes sponsored, though their names are either registered or are waiting to be registered in the employment 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 employment 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 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 manes by publication in the newspapers having wider 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 sub-served. The equality of opportunity in the matter of employment would be available to all eligible candidates. 30. If this procedure is adopted, fair play would be sub-served. The equality of opportunity in the matter of employment would be available to all eligible candidates. 30. In the instant case, it being not a case of deprivation to participate in the selection process because of non-issuance of the advertisement in the newspapers, while reiterating the requirement to mandate transparency and fair play in the matter of selection and appointment by giving wide publicity, without confining the selection only to the employment Exchanges sponsored candidates, the writ petitions are dismissed in the facts and circumstances projected by the Petitioners and as they do not lay the foundation that they were deprived of participation in the selection process because of the particular procedure adopted by the Respondents in conducting the selection. 31. Another aspect of the matter which needs mention is that at the time of entertaining the writ petition by order dated 15.2.2011, the learned Standing Counsel, Excise Department had submitted that no appointment order had been issued till the date of making the said order. It was on that basis, the interim order was passed not to make any appointment. However, in the counter affidavit filed by the Respondents, altogether a different plea has been taken, which is most unusual. It has been stated that the results were declared on 11.2.2011 and the list of successful candidates was hung in the notice board and that appointment letters had also been issued on 11.2.2011 to the selected candidates. As per the stand in the affidavit, the selected candidates had also submitted their joining reports on 14.2.2011 and 15.2.2011. Such plea of the Respondents is most unusual. If the select list was published on 11.2.2011 and the appointment orders had been sent to the respective candidates through out the State of Assam, it is most unusual that on receipt of the same they could join on 14.2.2011 and 15.2.2011, more particularly, when the selection pertains to the entire State and not to a particular centre. In this connection, paragraph 8 of the letter dated 21.6.2010 issued by the Government in the Excise Department to the Commissioner of Excise, Assam, by which approval was conveyed to fill up the posts subject to the conditions stipulated therein, is reproduced below: 8. In this connection, paragraph 8 of the letter dated 21.6.2010 issued by the Government in the Excise Department to the Commissioner of Excise, Assam, by which approval was conveyed to fill up the posts subject to the conditions stipulated therein, is reproduced below: 8. Before issue of appointment letter the Appointing Authority will obtain undertaking from the Selected candidates that they will abide by the New Pension Rules of Government. This stipulation will be specifically mentioned in the appointment letter as already advised/ordered vide Finance (Budget) Department's letter number BW.3/2003/Pt.I/1, dated 25-01-2005 for issue of instructions to Treasuries, for release of salaries intimating the Finance (SIU) approval number and the Treasury wise break up of posts alongwith names/lists of appointments, etc. This approval will remain valid upto 28-02-2011. (Emphasis added) 32. The particular plea of the Respondents that the candidates had already joined, perhaps has been made to frustrate the interim order passed by this Court. However, learned Additional Advocate General, Assam, during the course of hearing fairly admitted that the selected candidates have not been sent for training because of the interim order passed by this Court. Be that as it may, the Respondents in their endeavour to get the selection and appointment through, must not adopt a procedure which shakes the confidence of the Court. 33. Subject to the aforesaid observations, the writ petitions are dismissed, without however, any order as to costs. 34. Interim order passed on 15.2.2011 stands vacated. Petition dismissed.