High Court · 2012

Learned counsel for the respondents seek last opportunity to make their submissions on the issue. List again on 10th December, 2012, as prayed. (cid:29) We have heard learned counsel for the parties. Learned counsel for the petitioner submits that if recruitment is done o nly out of candidates from the local Employment Exchange without advertisement, the same will not be permissible as laid down by the Hon’ble Supreme Court in Ma mata Mohanty (supra). Learned counsel for respondents submit that the appointmen t was as per rule and having regard to nature of the post there could be no requ irement of advertisement or selection. Thus, question is whether the rule can be read as excluding the requirem ent of advertisement and selection. The Rule in question is as under :- (cid:28)5. Recruitment shall be made in the manner prescribed hereinafter : & &.. (1) (2) For the post of Lecturer/Librarian appointment shall be made by direct r ecruitment with prescribed qualifications through open advertisement in two lead ing dailies atleast in two consecutive issues. In respect of Grade-III and Grade -IV posts the list of candidates shall be collected from the local employment ex change/Advertisement in newspaper. (cid:29) In State of Orissa and another -Vs.- Mamata Mohanty, (2011) 3 SCC 436, i t has been observed :- (cid:28) Appointment/employment without advertisement

35. At one time this Court had been of the view that calling the names from empl oyment exchange would curb to certain extent the menace of nepotism and corrupti on in public employment. But, later on, it came to the conclusion that some appr opriate method consistent with the requirements of Article 16 should be followed . In other words thee must be a notice published in the appropriate manner calli ng for applications and all those who apply in response thereto should be consid ered fairly. Even if the names of candidates are requisitioned from employment e xchange, in addition thereto it is mandatory on the part of the employer to invi te applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does no t meet the requirement of the said article of the Constitution (vide Delhi Devel opment Horticulture Employees’ Union V. Delhi Admn. (1992) 4 SCC 99, State of Ha ryana Vs. Piara Singh, (2992) 4 SCC 118, Excise Supdt. Vs. K.B.N. Visweshwara Ra o, (1996) 6 SCC 216, Arun Tewari v. Zila Mansavi Shikshak Sangh, (1998) 2 SCC 3 32, Binod Kumar Gupta v. Ram Ashray Mahoto, (2005) 4 SCC 209, National Fertili zers Ltd. v. Somvir Singh (2006) 5 SCC 493, Telecom District Manager v. Keshab D eb (2008) 8 SCC 402, State of Bihar v. Upendra Narayan Singh (2009) 5 SCC 65) an d State of M.P. v. Mohd. Abrahim (2009) 15 SCC 214.

36. Therefore, it is a settled legal proposition that no person can be appoi nted even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from th e employment exchange or putting a note on the noticeboard, etc. that will not m eet the requirement of Articles 14 and 16 of the Constitution of India. Such a c ourse violates the mandates of Articles 14 and 16 of the Constitution of India a s it deprives the candidates who are eligible for the post, from being considere d. A person employed in violation of these provisions is not entitled to any rel ief including salary. For a valid and legal appointment mandatory compliance wit h the said constitutional requirement is to be fulfilled. The equality clause en shrined in Article 16 requires that every such appointment be made by an open ad vertisement as to enable all eligible persons to compete on merit. (cid:29) In view of above, the Rule in question cannot be read as permitting the appointment to be made only out of list of candidates collected from the local e mployment exchange. The requirement of advertisement in newspaper mentioned unde r the Rule cannot be held to be optional, but has to be read as mandatory. There is nothing to show that any advertisement or any public notice in any proper form was issued. Thus, the averments that appointment has been made o nly out of list furnished by the employment exchange has to be accepted as a fac t, which does not meet the requirement of law. Accordingly, we quash the impugned appointment with liberty to the appoi nting authority to make appointment afresh in accordance with law.