Dr. B.S Chauhan, C.J:— This Writ Petition was filed on 3.4.2001 seeking a direction to the Opposite Parties to allow the Petitioner to continue as Candidate Peon and to consider his case for regular appointment on the post of Process Server whenever vacancy occurs in future.
2. The facts and circumstances giving rise to the case are that Petitioner applied for the post of Candidate Peon and in pursuance of the intimation dated 27.12.1993 issued by the Registrar, Civil Courts, Kalahandi-Nuapada, Opposite Party No. 2, the Petitioner appeared in the written test held for the said post. After having been duly selected, the Petitioner vide letter dated 2.2.1994 was directed to appear before the District Judge, Kalahandi, Nuapada, Opposite Party No. 1 on 11.2.1994 for interview (Annex. - 1). Petitioner also passed the medical test and submitted two character certificates for being enrolled as a Candidate Peon. Petitioner was enrolled as a Candidate Peon vide Order Dated 21.2.1994 and attached vide Order Dated 26.4.1994 (Annex.-3) to the office of Civil Judge (Sr. Division), Dharamgarh. Petitioner was relieved from Bhawanipatna and was directed to join at Dharamgarh on 1.5.1994 and he joined therein. Petitioner had not been permitted to work as his name has been removed from the list of candidate peons vide Order Dated 10.6.1994 He made several representations to continue as Candidate Peon, but in vein. Other similarly situated persons have been continuing as Candidate Peons. Hence this Writ Petition.
3. Sri D.K Misra, Learned Counsel for the Petitioner has submitted that Petitioner has been discriminated by removing his name from the list of Candidate Peons, while other similarly situated persons have been retained and subsequently some of them have been appointed as Process Server in substantive capacity. Petitioner made several representations but the same have not been decided by the Learned District Judge. Thus, he is entitled for the relief sought.
4. On the contrary, Sri Khuntia, Learned Addl. Government Advocate has opposed the petition contending that the name of the Petitioner has been removed the list of Candidate Peons in June 1994, but he filed the petition after expiry of seven years in 2001. Thus there has been inordinate delay on his part in filing the petition. The petition is liable to be dismissed on that ground alone.
5. However, taking into consideration the submissions made by Sri Misra that the Petitioner has been deprived from regularization as a Process Server as per the provisions of the General Rules and Circular Orders of the High Court of Judicature, Orissa (hereinafter called GR & CO.) (Civil), we have examined the Rules which confer certain right of appointment on a person who had been appointed without advertisement, without there being any vacancy in existence just to be considered against a future vacancy in substantive capacity as process server.
6. Rules 71, 73 and 75 applicable in the case read as under:—
“71. Candidate Peons - The Nazir shall keep a register of candidates for filling up leave and permanent vacancies. These candidates will be enrolled under orders of the Judge-in-charge of Nazarat and their number shall not exceed 15 per cent of the total strength of permanent peons employed at any station subject to the minimum of one candidate.
72. xxx xxx xxx
73. Appointment of process-servers - No process - server shall be appointed except from these candidates.
74. xxx xxx xxx
75. Vacancies have to be filled in - Vacancies occurring at any Judgeship shall ordinarily be filled up by promotion and appointment respectively of peons and enrolled candidates attached to that Judgeship.”
7. The aforesaid Rules did not provide that Candidate Peon shall be enrolled after facing regular selection after advertisement of the vacancies. However, once a person is enrolled as a Candidate Peon, he becomes entitled for being appointed as Process Server in substantive capacity. According to Rule 75 whenever vacancy on the post of Process Server occurs in future in the concerned District Judgeship, the same shall be filled up from the enrolled Candidate Peons attached to that Judgeship.
8. The question requires serious consideration. Though this petition could be dismissed only on the ground of delay and laches as the same has been filed after seven years of the cause of action from the date of removal of the name of the Petitioner from the list of Candidate Peons.
9. It is settled legal proposition that for every post, there has to be advertisement and the post should be filled up by following the procedure which is in conformity with the requirements of Article 14 and 16 of the Constitution. The Rules do not provide for any advertisement or any mode of selection for enrollment of Candidate Peons. However, the Rules make it mandatory that whenever any vacancy occurs on the post of Process server, the same shall be filled up from the list of Candidate Peons of the District concerned. Such procedure amounts to filling up of the future vacancy, i.e, which occurs subsequent to the enrolment of candidate peons.
10. It is settled legal proposition that appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.
11. In Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi, (1992) 4 SCC 99 : AIR 1992 SC 789, the Hon'ble Apex Court held that calling the names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment.
12. In State of Haryana v. Piara Singh, (1992) 4 SCC 118 : AIR 1992 SC 2130, the Hon'ble Supreme Court held as under:—
“Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.”
13. Any appointment made even on temporary or ad hoc basis in violation of the mandate of Articles 14 and 16 of the Constitution of India is not permissible, and thus void as the appointment is to be given after considering the suitability and merit of all the eligible persons who apply in pursuance of the advertisement.
14. In Excise Superintendent Malkapatnam, Krishna District, A.P v. K.B.N Visweshwara Rao, (1996) 6 SCC 216, the larger Bench of the Hon'ble Supreme Court reconsidered its earlier Judgment in Union of India v. N. Hargopal, (1987) 3 SCC 308 : AIR 1987 SC 1227, wherein it had been held that insistence of requisition of names from employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari v. Zila Manaswavi Shikshak Sangh, (1998) 2 SCC 332 : AIR 1998 SC 331; Kishore K. Pati v. District Inspector of schools, Midnapur, (2000) 9 SCC 405 and Subhas Chand Dhrupta v. State of H.P, (2000) 10 SCC 82. Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.
15. A similar view has been reiterated in Pankaj Gupta v. State of J & K, (2004) 8 SCC 353; Binod Kumar Gupta v. Ram Ashray Mahoto, (2005) 4 SCC 209 : AIR 2005 SC 2103; National Fertilizers Ltd. v. Somvir Singh, (2006) 5 SCC 493 : AIR 2006 SC 2319; R.S Garg v. State of U.P, (2006) 6 SCC 430; Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54; and Commissioner Municipal Corporation Hyderabad v. P. Mary Manoranjani, 2008 AIR SCW 704.
16. In Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1, a Constitution Bench of the Hon'ble Supreme Court came to the conclusion that adherence to the provisions of Articles 14 and 16 of the Constitution of India is a must in the process of public employment and an employee who has been appointed without following the procedure prescribed by law, is not entitled for any relief, whatsoever, including the salary.
17. In Union Public Service Commission v. Girish Jayantilal Vaghela, (2006) 2 SCC 482 : AIR 2006 SC 1165, the Hon'ble Supreme Court held that the appointment to any post under the State can only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made without following the procedure, would be in violation of the mandate of Article 16 of the Constitution of India.
18. Therefore, it is evident that any appointment made without advertising the vacancy cannot be held to be in conformity with the mandate of Articles 14 and 16 of the Constitution of India and is a nullity.
19. In a regular selection it is not permissible to fill up the vacancy over and above the number of vacancies for the simple reason that it would amount to filling up of the vacancies which came into existence subsequent to the advertisement.
20. In Ashok Kumar v. Chairman, Banking Service Recruitment Board, (1996) 1 SCC 283 : AIR 1996 SC 976, the Supreme Court held as under:—
“5. Article 14 read with Article 16(1) of the Constitution enshrines 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……… 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”.
(Emphasis added)
21. In Gujarat State Deputy Executive Engineers' Association v. State of Gujarat, 1994 Supp (2) SCC 591, the Hon'ble Supreme Court quashed the appointments made over and above the vacancies advertised holding that such an action was neither permissible nor desirable for the reason that it would amount to ‘improper exercise of power’ and only in a rare and exceptional circumstance and in emergent situation, this rule can be deviated from and it can be done only after adopting policy decision based on some rational as the authority cannot fill up more posts than advertised as a matter of course.
22. In Prem Singh v. Haryana State Electricity Board, (1996) 4 SCC 319, the Apex Court observed as under—
“…. The selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. 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 State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf.”
(Emphasis added).
23. The said Judgment in Prem Singh was followed with approval by the Hon'ble Supreme Court in Virender Singh Hooda v. State of Haryana, (1999) 3 SCC 696 : AIR 1999 SC 1701.
24. In Union of India v. Ishwar Singh Khatri, 1992 Supp (3) SCC 84, the Court held that selected candidate 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 of indefinite period. Moreover, empaneled candidates “In any event cannot have a right against future vacancies.” In State of Bihar v. The Secretariat, Assistant S.E Union, 1986, (1994) 1 SCC 126 : AIR 1994 SC 736, the Apex Court held that “a person who is selected does not, on account of being empaneled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rules say to the contrary.” In the said case as the selection process was completed in five years after the publication of the advertisement, the contention was raised that the empanelled candidates deserved to be appointed over and above the vacancies notified. The Hon'ble Supreme Court rejected the contention observing that keeping the selection process pending for long and not issuing any fresh advertisement in between, may not be justified but offering the posts in such a manner would adversely prejudice the cause of those candidates who achieved eligibility in the meantime.
25. In Surinder Singh v. State of Punjab, (1997) 8 SCC 488 : AIR 1998 SC 18, the Apex Court held as under:—
“A waiting list, prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the persons from the waiting list may be pushed UP and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who became eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as infinite stock for appointment, there is danger that the State may resort to the device of not holding the examination for years together and pick up candidates from the waiting list as and when required. The Constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetuating the waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service Exercise of such power has to be tested on the touchstone of reasonableness it is not a matter of course that the authority can fill up more posts than advertised.”
(Emphasis added).
26. In Kamlesh Kumar Sharma v. Yogesh Kumar Gupta, (1998) 3 SCC 45 : AIR 1998 SC 1021, the Apex Court similarly observed as under:—
“As per the scheme of the Act and the aforesaid provisions, for each academic year in question, the management has to intimate the existing vacancies and vacancies likely to be caused by the end of the ensuing academic year in question. Thereafter, the Director shall notify the same to the Commission and the Commission, in turn, will invite applications by giving wide publicity in the State of such vacancies. The vacancies cannot be filled except by following the procedure as contained therein. Sub-Section (1) of Section 12 has incorporated in strong words that any appointment made in contravention of the provisions of the Act shall be void. This was to ensure to back-door entry but selection only as provided under the said Sections.”
(Emphasis added).
27. Similar view has been reiterated by the Hon'ble Supreme Court in Srikant Tripathi v. State of U.P, (2001) 10 SCC 237; State of J & K v. Sanjeev Kumar, (2005) 4 SCC 148; State of U.P v. Raj Kumar Sharma, (2006) 3 SCC 330; and Ram Avtar Patwari v. State of Haryana, (2007) 10 SCC 94 : AIR 2007 SC 3242.
28. In State of Punjab v. Raghbir Chand Sharma, (2002) 1 SCC 113 : AIR 2001 SC 2900, the Apex Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that post can be filled up offering the appointment to the next candidate in the select list observing as under:—
“With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select list prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently.”
29. Any appointment made beyond the number of vacancies advertised, is without jurisdiction, therefore a nullity, inexecutable and unenforceable in law.
30. More so, the enrolment list prepared under these rules does not come to an end as no tenure has been fixed for its survival. However, the select list prepared for regular selection of clerks in the District Court has a life of one year. Under what circumstances, the enrolment list is being used as a reservoir to fill up the vacancies, on the post of Process Server, whenever it occurs in future. Thus, the list becomes immortal, i.e, it will have a life till it stands exhausted. More so, the question would arise as to whether on the date of occurrence of vacancy, whether enrolled candidate peons fulfil other eligibility criteria including that of maximum age for being appointed as process server.
31. More so, it is also shocking to learn that unless a candidate peon is appointed as a process server, he does not get any remuneration even if he works as it amounts to “beggar” prohibited under Article 23 of the Constitution.
32. In view of the above, we are of the prima facie view that the enrolment of candidate peons for being appointed for casual works and to fill up the vacancy on the post of process server, whenever it occurs in future is not in consonance with the mandate of the provisions of Articles 14 and 16 of the Constitution and thus validity of the aforesaid provisions, i.e, Rules 71, 73 and 75 contained in G.R & CO., Civil, Volume - 1 become doubtful.
33. In view of the above, we issue notice to the State of Orissa, through its Law Secretary and the High Court of Orissa through its Registrar General to show cause why the provisions contained in Rules 71, 73 and part of Rule-75 to fill up the post of process server from enrolled candidate peons be not declared as ultra vires. The reply may be filed within three weeks.
34. List this matter for further hearing on 10.2.2009 at 2.00 P.M
35. B.N Mahapatra, J.:— I agree.