Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 59 (ORI)

Rabi Nayak v. State of Orissa

2014-01-24

A.K.GOEL, A.K.RATH, C.R.DASH

body2014
JUDGMENT Dr. A.K.RATH, J. – Cleavage of decisions between two coordinate Benches, necessitated the latter Division Bench to refer the matter to the Full Bench. The reasons set forth in point of reference are culled out in paragraph 12. The same are reproduced below : "12. We may observe that there now exist two different views regarding the effect of a merit list prepared on the basis of a recruitment test held under Rule 6 of 1969 Rules. One view is that the merit list shall remain in force till the preparation of a fresh merit list of the next examination and, in the interim, all vacancies are to be filled up from the present list. The other view is that the list will be valid for the purpose of filling up the posts which were in existence on the date of advertisement. In other words, only those posts which were in existence on the date of advertisement can only be filled up and that the subsequent posts which may be available due to fresh sanction or otherwise, cannot be filled up from the select list prepared in pursuance of the advertisement except in exceptional circumstances and in public interest. Since there are conflicting views of the Division Benches of this Court, we are of the opinion that the matter needs to be reconsidered by a larger Bench so that the controversy in question is resolved." 2. Interpreting sub-rule (5) of Rule 6 of the Orissa District and Subordinate Courts' Ministerial Services (Method of Recruitment and Conditions of Service) Rules, 1969 (in short the "Rules"), a Division Bench of this Court in case of Himanshu Parida v. District Judge, Balasore (OJC No. 8007 of 1995 decided on 29.7.1996) reported in 1996 (II) OLR 372 : 82 (1996) CL T 585 came to hold that the merit list published remains valid till the publication of the result of the next examination. In case the vacancy occurs after the list of successful candidates in exhausted and before the announcement of the result of the next examination, such vacancy can be filled up by a successful candidate of the previous years provided his age had not exceeded the maximum limit as laid down in sub-rule (3) of Rule 6. 3. In case the vacancy occurs after the list of successful candidates in exhausted and before the announcement of the result of the next examination, such vacancy can be filled up by a successful candidate of the previous years provided his age had not exceeded the maximum limit as laid down in sub-rule (3) of Rule 6. 3. The same rule was the subject-matter of interpretation in the case of Pradipta Kumar Samanta v. State of Orissa and others (OJC No. 632 of 1996 decided on 12.12.1996). The Bench came to hold that the number of posts which was in existence on the date of advertisement can only be filled up and subsequent posts which may be available due to fresh sanction or otherwise cannot be filled up from the select list prepared in pursuance of the advertisement unless there are exceptional grounds and that too in public interest. 4. For better reference, Sub-rule (5) of Rule 6 of the Rules is quoted below : "6. Competitive Examination – (1) to 4 xxx xxx xxx (5) In case a vacancy occurs after the list of successful candidates is exhausted and before the announcement of the result of the next examination, such vacancy may be filled up by a successful candidate of the previous years; provided that his age does not exceed the maximum limit laid down in Sub-rule (3) and failing that by any candidate who possesses the requisite qualification and is within the prescribed age-limit laid down in Sub-rule (3). In the latter event, the appointment of a candidate shall be made temporarily and shall not continue beyond the date when result of the next year's examination is declared, unless he passes the said examination." 5. Law operating in the field is no longer res integra The same is set at rest by the Supreme Court in a plethora of the judgments. In Ashok Kumar and others, v. Chairman, Banking Service Recruitment Board and others, reported in AIR 1996 SC 976 the Supreme Court in para 5 of the report held as follows : "5. Article 14 read with Article 16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. Article 14 read with Article 16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional. However, since the appointments have already been made and none was impleaded, we are not inclined to interfere with these matters adversely affecting their appointments. However, hereafter the respective Boards should notify the existing and excepted vacancies and the Recruitment Board should get advertisement published and recruitment should strictly be made by the respective Boards in accordance with the procedure to the notified vacancies but not to any vacancies that may arise during the process of selection." 6. In Prem Singh and others v. Haryana State Electricity Board and others, reported in (1996) 4 SCC 319 , the Supreme Court held that if the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised. 7. In Union of India and others v. Ishwar Singh Khatri and others reported in 1992 Suppl. (3) SCC 84, it is held that selected candidates have right to appointment only against 'vacancies notified' and that too during the life of the select list as the panel of selected candidate cannot be valid for indefinite period. Empannelled candidates cannot have a right against future vacancies. 8. In Mukul Saikia and others v. State of Assam and others reported in (2009) 1 SCC 386 , it is held that appointment of posts cannot be made more than the number of posts advertised. 9. After having survey of all the earlier decisions, the Supreme Court, in the case of State of Orissa and another v. Rajkishore Nanda and others reported in 2010 (II) OLR (SC) 496 : (2010) SCC 777, in Paragraph-11 of the report held as under "11. 9. After having survey of all the earlier decisions, the Supreme Court, in the case of State of Orissa and another v. Rajkishore Nanda and others reported in 2010 (II) OLR (SC) 496 : (2010) SCC 777, in Paragraph-11 of the report held as under "11. It is settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstances and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law." 10. Thus the view expressed in Himanshu Parida (supra) that as per Sub-rule (5) of Rule 6 of the Rules, in case a vacancy occurs after the list of successful candidates is exhausted and before the announcement of the result of the next examination, such vacancy may be filled up by a successful candidate of the previous years, provided that his age does not exceed the maximum limit laid down in Sub-rule (3) of Rule 6 is not correct. The same is hedged by the subsequent sentence that "in the latter event, the appointment of a candidate shall be made temporarily and shall not continue beyond the date when result of the next year examination is declared, unless he passes the said examination." 11. The same is hedged by the subsequent sentence that "in the latter event, the appointment of a candidate shall be made temporarily and shall not continue beyond the date when result of the next year examination is declared, unless he passes the said examination." 11. In view of the authoritative pronouncement of the Supreme Court in the decisions cited supra, we hold that the vacancies cannot be filled up over and above the number of vacancies advertised, since recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right enshrined under Article 14 read with Article 16(1) of the Constitution of those persons who acquired eligibility to the posts subsequent of the date of notification of vacancies. If the advertisement is made for certain number of posts, no appointment can be made more than the number of posts advertised over and above the notified vacancies. Filling up of vacancies over and above the notified vacancies tantamount to filling up future vacancies, which are not permissible under law. 12. The reference is answered accordingly. The Registry is directed to place the matter before the assigned Bench. CHIEF JUSTICE I agree. C. R. DASH, J. I agree. Reference, answered.