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2017 DIGILAW 776 (ORI)

Kailash Chandra Nauri v. State of Orissa

2017-07-24

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. PRASAD, J. 1. This writ petition under Articles 226 and 227 of the Constitution of India wherein the order dated 30.3.1998 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A.No.2616(C) of 1996 is under challenge, whereby and where under direction has been passed by the Tribunal for quashing appointment of 14 persons which is in excess of the advertisement. 2. Brief facts of the case is that in pursuance of the advertisement published for recruitment to the posts of Reserve Police Constables in the Orissa Reserve Police Force, applicants had appeared in the test in which they were found suitable and selected for appointment. Merit list was prepared in which applicants were empanelled. Few candidates in the panel list were given appointment as Reserved Police Force but some of the applicants whose names were in the panel list were not given appointment. According to them, they had performed duties during the period from 20.4.1996 to 11.5.1996 in connection with the General Election in the year 1996. The Authority has sought approval of the Deputy Inspector General of Police(Admn.) and Deputy Inspector General of Police(OR) vide letter dated 12.9.1996 for giving appointment to 135 numbers of candidates against the vacancies occurred between 11.10.1995 and 31.8.1996 because these candidates were kept waitlisted for such appointment. According to them, the select list prepared by the Selection Committee on the basis of the interview and test held by them w.e.f. 9.10.1995 to 11.10.1995 has remained valid up to the date of filing of the case as no further interview was held by the authority. It is further case of the applicants before the Tribunal that since there were 80 vacancies in the rank of Constables at that time only, names of 80 candidates having secured highest marks both in physical test and interview were considered the selection committee for appointment and accordingly 80 candidates were appointed as Constables in Bhubaneswar district. It is the case of the applicants before the Tribunal that the advertisement only reflects vacancies to be filled up to the extent of 66 but recruitment was held for appointment of Constable against 80 vacancies as per the guideline given by Police Order No.295 of 1994 but even their names were in the waiting list, they have not been considered for engagement rather other 14 candidates have been appointed. According to them, if other 14 candidates would not have been appointed, they might have been appointed against the post but due to illegality committed on the part of the authority, their chances for being appointed, has been taken away by the authority. 3. The State has appeared before the Tribunal but not disputed the fact that the advertisement was only for filling of up the post of 66 Constables. The Tribunal, after taking note of the admitted position of the State regarding the notified vacancies in terms of the advertisement as settled the proposition of law that appointment cannot be made excess of the vacancies advertised, has passed the order quashing the appointment of 14 persons who were in excess of the advertisement. 4. The petitioners in the writ petition are being aggrieved with the order of the Tribunal whereby and where under direction for quashing appointment of 14 persons have been passed, is before this Court challenging the order on the ground that the order has been passed without hearing them since they have not been impleaded as party before the Tribunal. Learned counsel for the petitioners herein has submitted that even they would have been made party before the Tribunal, they would have brought the fact before the it for proper adjudication of the issue but depriving them from valuable right to be heard, the order has been passed by the Tribunal, hence on this ground alone the order of the Tribunal cannot be held to be sustainable in the eye of law. 5. The State has been represented by the learned Additional Government Advocate who has not disputed the fact that there are only 66 vacancies having been advertised for filling up the posts. He has also not disputed the legal settled position that excess of the vacancies notified should not have been filled up; taking note of this aspect of the matter, the Tribunal has passed well reasoned order. He has also not disputed the legal settled position that excess of the vacancies notified should not have been filled up; taking note of this aspect of the matter, the Tribunal has passed well reasoned order. He further submits, in response to the submission made by learned counsel for the petitioners, that since they have not been impleaded as party and as such, they have been prejudiced by the order impugned, replying to this argument, submission has been made that if the fact is not in dispute, merely on the ground of non-observation of principle of natural justice, the matter may not be remitted before the Tribunal for fresh adjudication as has been prayed by the petitioners. He submits that the Tribunal has quashed the said action although these petitioners have become beneficiaries but even if they would have been heard, the factual aspect regarding notified vacancies, as per the advertisement in question, is not being disputed. He further submits that since the State action has been quashed, as such the Tribunal has not committed illegality in passing the order which is impugned in the instant writ petition. 6. We have heard learned counsel for the parties and perused the documents available on record. 7. Admitted position in this case is that advertisement was published by the State authorities on 9.9.1995 for filling up of the posts of Constables under the Reserve Police. Selection process has commenced, penal was prepared on the basis of the performance of one or the other candidates who had participated in the selection process. The authorities have prepared a list of 135 candidates, the authorities have appointed 80 Constables although vacancies notified was 66. Justification for appointing 80 vacancies is contained in Police Order No.295 of 1994. Some of the candidates, whose names in the panel beyond the list falls after 80 onwards, have approached the Tribunal for issuance of direction upon the authorities to appoint them since their names appeared in the panel list and they had discharged their duties in the General Election of the year 1996. Some of the candidates, whose names in the panel beyond the list falls after 80 onwards, have approached the Tribunal for issuance of direction upon the authorities to appoint them since their names appeared in the panel list and they had discharged their duties in the General Election of the year 1996. The Tribunal have issued notices upon the parties and came to conclusion that the vacancies notified was only 66 and as such deprecated the action of the State since they have appointed candidates more than the notified vacancies and accordingly the Tribunal, after hearing the plea of the applicants, has quashed appointment of 14 candidates who have been found to be beyond 66 Constables. This writ petition has been filed by 14 candidates whose appointment has been cancelled by the Tribunal. These petitioners have taken sole ground that they were not parties before the Tribunal and as such, the order is exparte and they have been prejudiced, hence submission has been made that the matter be remitted before the Tribunal for fresh adjudication. 8. We, after appreciating the arguments advanced by the parties and considering the settled proposition that the posts cannot be filled up above the posts advertised, as would be evident from the judgments pronounced by the Hon’ble Supreme Court in the case of State of U.P. and others vs. Rajkumar Sharma and others, reported in 2006 SCC(L&S)565 at para-13 which is being reproduced herein below: “Filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights granted under Articles 14 and 16 of the constitution.(see Union of India v. Ishwar Singh Khatri,1992 Supp.(3) SCC 84; Gujarat State Dy.Executive Engineers’ Assn. v. State of Gujarat,1994 Supp(2) SCC 591; State of Bihar v. Secretariat Asstt.Successful Examinees Union,1986, (1994)1 SCC 126 ; Prem Singh v. Haryana SEB, (1996)4 SCC 319 ; Surinder Singh v. State of Punjab, (1997)8 SCC 488 ; Kamlesh Kumar Sharma v. Yogesh Kumar Gupta, (1998)3 SCC 45 .” In the case of Rakhi Ray and others vs. High Court of Delhi and others, etc., (2010)2 SCC 637 ; the Hon’ble Apex Court at para-7 of the judgment held which is being reproduced herein below: “It is a 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 circumstance and in emergent situation"., such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law". We, after going through the proposition laid down by the Hon’ble Apex Court regarding filling up of the vacancies, are of the considered view that the Tribunal has committed no error in passing the order of quashing of appointment of the candidates who are beyond 66 vacancies in the panel list. 9. So far as the contention of the petitioners that they are the necessary parties and they ought to have been made parties before the Tribunal and by not doing so, the order cannot be held to be justified. 9. So far as the contention of the petitioners that they are the necessary parties and they ought to have been made parties before the Tribunal and by not doing so, the order cannot be held to be justified. We, after examining this argument in the light of the factual aspect to the effect that the appointment beyond 66 candidates from the panel is not in dispute even if they would have been impleaded as parties, there would not be change in the factual aspect, submission of the learned counsel for the petitioners that the matter may be remitted before the Tribunal for fresh adjudication, this argument is not acceptable to us for the reason that even if it will be remitted before the Tribunal, the factual aspect would not be changed regarding notified vacancy. Moreover, it is the State action which has been said to be illegal by quashing appointments made after 66 candidates having in the panel. It is settled that remitting the matter before the Tribunal would amount to futile exercise. In this respect, reference may be made to the judgment rendered by the Hon’ble Apex Court in the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015)8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below: “39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason- perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing “would make no difference”- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker.” In the case of Escorts Farms Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P. & others, reported in (2004)4 SCC 281 wherein the Hon’ble Apex Court has held at paragraph-64 which is being quoted herein below: “64. Right of hearing to a necessary party is a valuable right. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.” Here in the instant writ petition, the petitioners are admitting the entire facts of the case and even if the matter is remitted before the Tribunal, no change in the fact will come; rather it will lead to futile exercise. 10. Taking into consideration the factual aspect as well as the settled proposition of law, we are of the considered view that the Tribunal has not committed any error in passing the order impugned. Accordingly, we are not inclined to interfere with the order impugned. 11. In the result, the writ petition, being devoid of merit, is dismissed.