ARUN KUMAR NAYAK v. UNION OF INDIA AND ORS

Citation: [2006] SUPP. 6 S.C.R. 404

Court: Supreme Court of India

Bench: H.K. SEMA, P.K. BALASUBRAMANYAN

Case summary

ARUN KUMAR NAYAK v. UNION OF INDIA AND ORS.pdf

Judgment text

ARUN KUMAR NAYAK v. UNION OF INDIA AND ORS. SEPTEMBER '. 10, 2006 [H. K. SEMA AND P. K. BALASUBRAMANYAN, JJ. ] Service Law: Selection-Requisition sent to employment exchange for filling up posts -Employment exchange sponsoring list of candidates-Subsequenrly corrigendum issued for wiJ·~r publicity of posts by public notification - Candidates applied pursuant lo public notification blll not considered by Departme/1/--Candidature uf only one person from list sponsored by employmenl exchangefound to be complete who was considered and selected- Selection challenged -Held, there was no element ofselection and the process of selection 11·as a mocke1:i· - Tribunal correct(! ' quashing selection process and directing selection process afresh taking into consideration applications receivedfi'o1. i both Employment £rchange and candidates who applied pursua/1/ to public notification. On 18. 9.

1997 a requisition was made to the local Employment Exchange for the post of Extra Departmental Sub Post Master (EDSPM) stipulating that preference would be given to ST/SC Candidates. Employment Exchange sponsored a list of 40 candidates including name of respondent No. 4 who belonged to General Category. Subsequently, corrigendum was issued on 19. 8. 1998 requiring public Notification having wider publicity along with the requisition made to the Employment Exchange in terms of directions issued in the case of Excise Department Malkapatnam, Krishna Districl, A. P. v. K. B. N. Visweshwara Rao and Ors.. 1199616 SCC 216. On 9. 9. 1998 a public Notification inviting applications was issued stipulating that if number of 3 eligible candidates belonging to ST Community did not offer candidature, the vacancy shall be offered to candidates belonging to OBC and SC candidates respectively, in order of deficiency in representation.

Pursuant to public Notification appellant applied for the post as an OBC candidate. Candidates including appellant, who applied pursuant to advertisement were eliminated by respondent ARUN KUMAR MAYAK r. U. 0. 1. 405 No. 2, Supdt. of Post Offices, on the ground that since recruitment process had already commenced pursuant to requisition made to Employment Exchange on 18. 9. 1997, public Notification issued on 9. 9. 1998 inviting applications was superfluous. and unnecessary. Out of 40 candidates sponsored by Employment Exchange, only 7 candidates submitted applications when called upon to do so out of which 6 were disqualified as they failed to produce all necessary documents. The candidature of only respondent No. 4 was considered who was selected on 15. 10. 1998. •...... . ' . App. ellant challe! lged selecti. on of respondent No. 4 before Central Administrative Tribunal (CAT).

Tribunal quashed entire selectiOn process and directed respondent department to conduct selection process afresh and to consider aH applications received from both Employment Exchange. and the candidates who submitted applications pursuant to public Notification dated 9. 9. 1998 on merit. However, High Court set aside the order of Tribunal and confirmed appointment of respondent No. 4: Hence this appeal. Allowing the appeal, the Court HELD :I. The Selection Committee considered only the case of 4th respondent whose candidature according to the Committee was complete in all respects and he was selected subsequently. Six candidates who applied pursuant to the public Notification were disq. ualified. The stand of the department was correctly rejected by the Tribunal. The Tribunal was of the view that there was no element of choice before the department since the only candidate remained to be conside. red was the 4th · Respondent. There was no element of selection.

The process of selection was a mockery. [408-D, E, Fl 2. Intimation to the Employment Exchange about the vacancy and candidates sponsored from the Employment Exchange is mandatory. This Court has held that in addition and consistent with the principle offair . play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television -· and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all th~ eligible candidates in the matter of employment. The rationale behind such direction is also consistent with the sound public policy that wider the opportunity of the notice of vacancy by wider publication . in the 406 St:PRL'. \IE COliRl REl'OI~ IS i2006J Sl'l'I' 6 S. CR. newspapers. radio, television and employment nens bulletin.

the better candidates with better qualifications are attracted, so that adequate choice~ arc made available and the best candidates would be selected and appointed to subserve the public interest better. 1410-C, D, E, Fl t. ~rdse S11peri11te11dem. • ,\lulkupatnum, Krishna District, A. P. v. K. B.. '1-. I 1s•1e. 1/111aru Rua and Ors.. 1199616 sec 216 followed. c·nion of India v. N. Hargopal. 119871 3 SCC 308 and Delhi Development Horticulture Employees' Union v. Delhi Administration. Delhi, 1199214sec,99, referred to. Arun Tewari v. Zila . \4ansuvi Shikshak Sangh, ! 19981 2 SCC 332, distinguished. 3. In the Notification dated 9. 9. 98 the applications were invited from the intending candidates belonging to ST community for the posts.

It was also stipulated in the advertisement that if a minimum of three eligible candidates belonging to the ST community do not offer their candidature, the vacancy in question will be treated as unreserved and offered to the candidates belonging to the other reserved communities in order of deficiency in representation - OBC Community and SC community. The appellant belongs to OBC. Admittedly, the 4th respondent belongs to general category. Even otherwise, he could not have been selected, notwithstanding the availability of candidates from other reserved category like OBC and SC community. 1411-D, E, Ff CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2262 of2005. From the Judgment and Order dated 13. 2. 2003 of the High Court of Orissa at Cuttack in O. J. C. No. 6122. 12000. M. N. Krishnamani. Soumyajit Pani, Chittaraajan Panda, Vipin K. Saxena and Ansar Ahmad Chaudhary for the Appellant. K. P. Pathak. A. S. G. (N. P). Harish Chandra, Na\in Prakash. Shailender Shanna. V. K. Verma.

Shreekant N. Terdal. Jamshed Bey and Parmanand Gaur for the Respondents. The Judgment of the Court was delivered by H. K. SEMA, J. This appeal is directed against the judgment and order ARUN KUMAR MAYAK v U 0. 1. [I IK. SEMA. J. ] 407 dated 13. 02. 2003 of the High Court of Orissa in OJC No. 6122 of 2000 whereby the order dated 6. 8. 1999 passed by the Central Administrative Tribunal (hereinafter the Tribunal) in O. A. No. 606 of 1998 was set aside. We have heard the parties at length. The present controversy relates to the appointment of Extra Departmental Sub Post Master ( in short EDSPM) at Ratnagiri, now redesignated as, "Gramin Dak Sewak". On 18. 9. 1997 a requisition was made to the local Employment Exchange. It was stipulated that prefrrence would be given to ST/SC candidates. Pursuant to the adve11isement the Employment Exchange sponsored a list of 40 candidates including the 4th respondent herein Sri Chittaranjan Kar. A corrigendum was issued on 19. 8.

1998 requiring public Notification having wider publicity along with the requisition to be made to the Employment Exchange. This corrigendum was issued in terms of the directions issued by this Court in the case of Excise Superinlendenl Mafkapatnam, Krishna District. A. P. v. KB. N Visll'eslrn·ara Rao and Ors. , [1996] 6 SCC 216. On 9. 9. 1998, the public Notification was issued inviting applications from intending candidates. In the said Notification, it was stipulated thai if a minimum number of 3 eligible candidates belonging to ST community do not offer their candidature.. the vacancy in question shall be offered to the candidates belonging to OBC and SC candidates respectively, in order of deficiency in representation. Pursuant to Public Notification the appellant applied for the post as an OBC candidate iii the prescdbed application format along with the requisite documents. It may be mer . U. 0. 1. [11. K. SEMA. J. ) _411 ·-...

_ ~The next contention relates to inviting applications from employment exchanges instead of by advertisement. This procedure has been resorted to looking to the requirements of a time-bound scheme. The original applicants contended that if the posts had been advertised• . ·many others like them could have applied. The original applicants who so complain. however, do not possess the requisite qualifications for the post. As far as we can see from the record, nobody who had the requisite qualifications has complained that he was prevented from applying be. ::ause advertisement was not issued. What is more important, in the special circumstances requiring a speedier process of selection and appointment, applications were invited tfirough employment exchanges for 1993 only. In this context, the special procedure adopted is not unfair. " Therefore, the decision by this Court in Arun Tewari {supra) is based on the facts of that case, namely a time bound scheme and exigency of service.

No law has been laid down thereunder. But in the case of Visweshwara Rao (supra) a three Judge Bench of this Court has laid down the law and that is still holding the field. There is yet another reason for which the order of the High Court, cannot be sustained. In the Notification dated 9. 9. 98 the applications were invited from the intending candidates belonging to ST community for the posts. It was also stipulated in the advertisement that if a minimum of three eligible candidates belonging to the ST community do not offer their candidature, the vacancy in question will be treated as unreserved and offered to the candidates beloflging to the other reserved communities in order of deficiency in representation OBC Community and SC community. The appellant belongs to OBC. Admittedly, the 4th respondent belongs to general category. Even otherwise, he could not have been selected. notwithstanding the availability of candidates from other reserved category like OBC and SC community.

For the aforestated reasons, the impugned order of the High Court dated 13. 02. 2003 passed in OJC No. 6122 of 2000 is ~ereby set aside. The appeal is allowed. Writ Petition filed by the 4th respondent stands dismissed. No costs. A. K. T. Appeal allowed.