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Himachal Pradesh High Court · body

2016 DIGILAW 708 (HP)

Babita Kumari v. Union of India

2016-05-06

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. The appointment of writ petitioner to the post of GDSBPM, (hereinafter referred to as the ‘post’), has been ordered to be quashed by the learned Central Administrative Tribunal (hereafter referred to as the ‘Tribunal’), constraining her to file the instant writ claiming therein the following substantive reliefs:- “(i) That the writ petition may kindly be allowed and the order of Ld. Tribunal in OA NO.56/HP/2009 dated 22.11.2010 contained in (Annexure P-5) may kindly be quashed and set aside. (ii) That a direction may kindly be issued to the respondent No.1 to 3 to allow the petitioner to work as GDSBPM, Bhuira with all consequential benefits.” 2. On 9.2.2002, the post in question fell vacant on account of death of its incumbent Rattan Singh, (father of respondent No.4 herein). The respondent No.4 sought appointment on compassionate grounds, but his case was rejected. In the meanwhile, the official respondents appointed writ petitioner to the post which was assailed by respondent No.4 before the Tribunal, on the ground that the post was neither advertised nor given wide publicity and moreover all the six candidates who participated in the selection process were related to the employees of the respondent department. 3. The official respondents in their reply had averred that the post in question was initially reserved for OBC candidate, but despite giving wide publicity only one application was received till last date, whereas in terms of the rules, a minimum of three applications from OBC candidates should have been received so as to consider the candidature of the applicant. In this eventuality, the post in question was declared to be unreserved and the Sub Employment Officer, Rajgarh was again requested vide letter dated 2.9.2008 to nominate eligible candidates for the said post. Simultaneously, an open notice was also issued to Pradhan, Gram Panchayat, Bhuira for giving wide publicity to the post. The last date for receiving applications was fixed as 1.10.2008 and by this time, six applications were received. However, Sub Employment Officer, Rajgarh did not supply any list of candidates. The official respondents, after considering the candidatures of all the six candidates, appointed one Sh. Sanjay Thakur who was having the highest marks in matriculation examination, but since he refused to join, the next candidate i.e. the writ petitioner was approved and offered the post of GDS BPM. However, Sub Employment Officer, Rajgarh did not supply any list of candidates. The official respondents, after considering the candidatures of all the six candidates, appointed one Sh. Sanjay Thakur who was having the highest marks in matriculation examination, but since he refused to join, the next candidate i.e. the writ petitioner was approved and offered the post of GDS BPM. It was further stated that respondent No.4 did not apply for the post in question, therefore, he has no locus standi to assail the appointment of writ petitioner herein. 4. Learned Tribunal set aside the appointment of the writ petitioner by concluding that the post reserved for the candidate of OBC category could not have been ordered to be de-reserved but was required to be carried forward for at least three successive years and it is only on expiry of the third year that the same could be filled up from the general category due to non availability of candidates belonging to OBC. Since this procedure had not been followed, therefore, appointment of writ petitioner was illegal and was accordingly quashed and set aside and the official respondents were further directed to fill up the post by a candidate of OBC category within a period of six months. We have heard the learned counsel for the parties and have gone through the material placed on record of the case. 5. At the outset, it may be observed that the equality clause enshrined in Article 16 of the Constitution of India mandates that every appointment to public post or office should be made by open advertisement so as to enable all eligible persons to compete for selection merit. Any regular appointment made to a post under the State/Union without issuing advertisement/ inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to complete, would violate the guarantee enshrined under Article 16 of the Constitution of India. 6. It is not in dispute that the post in question was a regular post and the same could have only been filled up after giving wide publicity. Even if the employment exchange had failed to sponsor the names, it was still incumbent upon the official respondents to have made an another endeavour to have the names sponsored, but could not have filled up the post that too in a hush-hush manner. Even if the employment exchange had failed to sponsor the names, it was still incumbent upon the official respondents to have made an another endeavour to have the names sponsored, but could not have filled up the post that too in a hush-hush manner. We say so on the basis of the material placed before us wherein it is established that only six candidates had applied for the post in question and these candidates were in, some or other way, related to the employees of the postal department. It is not at all to suggest that relatives of the employees working in the postal department cannot be considered or would be disqualified from consideration, but at the same time, it cannot be a mere coincidence that all the applicants just happened to be related to the employees serving the postal department. This clearly establishes that the vacancy position was kept a close guarded secret and was only known to the employees of the respondent department and, that is why, it is only their relatives who applied for the post. Therefore, no fault can be found with the order passed by the learned Tribunal, whereby it held that adequate and wide publicity had not been made by the official respondents before filling up the post in question. 7. Now, in case we advert to the notice sent to the Pradhan, Gram Panchayat by the official respondents for giving wide publicity for filling up the post, it would be noticed that there is practically no proof on the file to establish that the notice was in fact given wide publicity. If it was so, we see no reason why only six persons that too all related to the employees of the postal department would only have applied. 8. Once the post in question was reserved for OBC, then we see no reason or justification as to why the carried forward rule was not applied and in such circumstances also, no fault can be found with the order passed by the learned Tribunal. Consequently there is no merit in this petition, the same is accordingly dismissed, leaving the parties to bear the costs.