Union of India v. 1.R

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:04.08.2009CORAMTHE HON'BLE MR.JUSTICE ELIPE DHARMA RAO&THE HON'BLE MR.JUSTICE T.S.SIVAGNANAMW.P.NOS.15725 & 15726 OF 2007 &M.P.Nos.1 & 2 of 20071.Union of India represented by The Chief Post Master General Tamil Nadu Circle, Chennai - 600 0022.The Superintendent of Post Offices Tiruvannamalai - 606 6013.The Inspector of Posts Tiruvannamalai Sub-Division Tiruvannamalai - 606 6014.Union of India represented by The Inspector of Posts Tiruvannamalai Sub-Division Tiruvannamalai - 606 601..Petitioners in both W.Ps.Vs.1.R.Gopu2.The Registrar Central Administrative Tribunal Chennai Bench, Chennai – 104 ..Respondents in both W.Ps.Prayer in W.P.No.15725/2007: Writ petition under Article 226 of theConstitution of India praying to issue a writ of certiorari callingfor the records relating to the order dated 19.10.2006 passed by theCentral Administrative Tribunal in O.A.No.720/2006 and to quash thesame.Prayer in W.P.No.15726/2007: Writ petition under Article 226 of theConstitution of India praying to issue a writ of certiorari callingfor the records relating to the order dated 19.10.2006 passed by theCentral Administrative Tribunal in O.A.No.734/2006 and to quash thesame. For Petitioners : Mr.B.Shanthakumar, CGSC For Respondent : Mr.M.Radhakrishnan for R1 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the court was made byJustice T.S.Sivagnanam)W.P.No.15725/2007 has been filed by the Postal Departmentchallenging the order passed in O.A.No.720/2006 dated 19.10.2006and W.P.No.15726/2007 has been filed challenging the order passed inO.A.No.734/2006 dated 19.10.2006. Since both the originalapplications came to be disposed of by a common order, we propose todispose of both the writ petitions by a common order. 2. The applicant was appointed as a Gamin Dak Sevak MailCarrier on stop gap arrangement by order dated 10.10.2002. Whilehe was working in the said post, he was orally terminated fromservice on 30.07.2004. This came to be challenged by the applicantbefore the Tribunal by filing O.A.No.117/2007, which was allowed on02.11.2005. The applicant filed a contempt petition inC.P.No.20/2006 to implement the said order and thereafter, theDepartment reinstated him as GDS MC on stop gap arrangement ontemporary basis with effect from 01.08.2006. By Notification dated11.08.2006 issued by the Inspector of Posts, Tiruvannamalai Sub-Division, applications were called for from eligible candidates forthe post of Gramin Dak Sevak Mail Carrier. The Notification alsostipulated the eligibility conditions and other details. Theapplicant applied for the said post under the Notification andsimultaneously challenged the Notification before the Tribunal byfiling O.A.No.734/2006. 3. It is the case of the applicant that pursuant to the interimorders granted by the Tribunal, he participated in the selectionprocess without prejudice to his rights and contentions inO.A.No.734/2006. Apprehending that the applicant is likely to beterminated consequent to the regular selection, he filedO.A.No.720/2006 before the Tribunal. The Department resisted boththe applications by primarily contending that the applicant wasposted as GDS MC on stop gap arrangement and on temporary basis on02.08.2006 in compliance of the order made in O.A.No.117/2005 andC.P.No.20/2006. It would further contend on, 11.08.2006, tenapplications were received from the open market and though nameswere called for from the employment exchange, they were belatedlyreceived on 18.09.2006. The first five meritorious candidates wereaddressed on 18.09.2006 to attend the certificate verification andall the five candidates attended the interview on 20.09.2006 andamong the five, one candidate by name T.Kabalamoorthy, who securedthe highest mark in the 10th Standard i.e., 344/500 in the firstattempt was selected. The Department would further contend thatthere is no error in the selection process and hence the originalapplications deserve to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

4. The Tribunal, after considering the facts and circumstancesof the case and taking note of the various judgments of the Hon'bleSupreme Court of India, held that the Notification, calling forapplications for public employment, should be given wide publicityand it should be published in vernacular newspapers circulated in theDistrict and the contention of the Department that it would be costprohibitive, cannot be accepted. On the other ground viz.,stipulation of higher qualification, the Tribunal held, after relyingupon the judgments of the Hon'ble Supreme Court of India, thatthough higher qualified candidates are not entitled to be consideredfor selection automatically, an additional weightage has to be givento them and the weightage has to be evaluated on the basis of themarks obtained in that higher qualification and it is for thecompetent authority to consider the same for assessment. TheTribunal further found that there is no error in the order dated01.08.2006 appointing the applicant on stop gap arrangement ontemporary basis pending regular appointment. The Tribunal also heldthat the applicant is entitled for service benefits from 30.07.2004to 01.08.2006 and the Department was directed to comply with the saidrequirement. Accordingly, the Tribunal set aside the Notificationdated 11.08.2006 and directed the Department to proceed with theselection process in accordance with law, in the light of theobservations made by the Tribunal.5. These orders are questioned in the above two writ petitions.Mr.B.Shanthakumar learned counsel appearing for the Department wouldcontend that the Tribunal has committed an error in holding that thestop gap appointment of the applicant pending regular recruitmentcannot be terminated at any time and it has to be compulsorilycontinued till regular recruitment. The appointment of theapplicant on stop gap arrangement cannot give a cause of action tohim and he cannot maintain the original applications. He furthercontended that the applicant having participated in the selection, heis estopped from questioning the selection process. He alsocontended that the applicant cannot take a ground that there was nowide publication of the recruitment Notification, after havingapplied for the post pursuant to the said Notification. He wouldfurther contend that the Tribunal ought to have taken intoconsideration the process adopted for filling up the post in questionand the procedure adopted by the Department by sending theemployment Notification to the District Employment Office, VillageAdministrative Officer, President of the local panchayat, Sub-Inspector of Police of the local police station and the Branch PostMaster and Sub-Postmaster, which, according to him, is sufficientcompliance of the publication requirement. He also relied upon aNotification issued by the Government of India stating that inrespect of such posts if wide publication is to be resorted to, itwould be cost prohibitive and therefore prayed for setting aside theorders passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

6. Per contra, Mr.M.Radhakrishnan learned counsel appearing forthe Respondent would contend that the orders of the Tribunal callsfor no interference. Admittedly, the Tribunal directed wide publicityby placing reliance on more than one judgment of the Hon'ble SupremeCourt of India and further contended that in the matter of publicemployment, it is all the more necessary that widest publicity shouldbe given. He also further contended that the applicant is entitledto continue in service, though he was appointed on stop gaparrangement. 7. We have carefully considered the submissions made by thelearned counsel on either side as well as the materials available onrecord. In our opinion, the Tribunal has rightly held that theprocedure adopted in publishing the employment Notification iscontrary to the law laid down by the Hon'ble Supreme Court of Indiain Excise Superintendent, Malkapatnam Vs. K.B.N.Visweshwara Rao andothers (1996 SCC L&S 1420) wherein it has been held in para 6 asfollows:" 6. Having regard to the respective contentions, weare of the view that contention of the respondents ismore acceptable which would be consistent with theprinciples of fair play, justice and equal opportunity.It is common knowledge that many a candidate is unable tohave the names sponsored, though their names are eitherregistered or are waiting to be registered in theemployment exchange, with the result that the choice ofselection is restricted to only such of the candidateswhose names come to be sponsored by the employmentexchange. Under these circumstances, many a deservingcandidates is deprived of the right to be considered forappointment to a post under the State. Better viewappears to be that it should be mandatory forrequisitioning/establishment to intimate the employmentexchange, and employment exchange should sponsor thenames of the candidates to the requisitioning departmentfor selection strictly according to seniority andreservation, as per requisition. In addition, theappropriate department or undertaking or establishmentshould call for the names by publication in thenewspapers having wider circulation and also display ontheir office notice boards or announce on radio,television and employment news bulletins; and thenconsider the cases of all the candidates who haveapplied. If this procedure is adopted, fair play wouldbe sub served. The equality of opportunity in the matterif Employment would be available to all eligiblecandidates." https://hcservices.ecourts.gov.in/hcservices/ Further the Hon'ble Supreme Court in UPSC vs. Girish Jayanti Vaghela& others (JT 2006 (2) SC 137), wherein the Hon'ble Supreme Court heldas follows:" 30.......The appointment to any post under the State canonly be made after a proper advertisement has been madeinviting applications from eligible candidates and holdingof selection by a body of experts or a speciallyconstituted committee whose members are fair and impartialthrough a written examination or interview or some otherrational criteria for judging the inter se merit ofcandidates who have applied in response to theadvertisement in the prescribed manner which may in somecases include inviting applications from the employmentexchange where eligible candidates get their namesregistered. Any regular appointment made on a post underState or Union without issuing advertisement, invitingapplications from eligible candidates and without holding aproper selection where all eligible candidtes get a fairchance to compete would violate the guarantee enshrinedunder Article 16 of the Constitution (See B.S.Minhas v.Indian Statistical Institute and others 1984 (1) SCR 395)."8. In the matter of public employment, every person shouldhave an equal opportunity to apply for the post called for. It doesnot matter as to the nature of the post. All eligible candidatesshould have the knowledge of such recruitment. Precisely, theHon'ble Supreme Court of India, on this issue, has held that Article16 of the Constitution of India has specifically provided forequality of opportunity in the matter of public employment andtherefore any attempt, which would defeat the very object, is to beheld illegal and the Union or a State has to ensure that alleligible candidates get a fair chance to compete for suchrecruitment. Therefore we find no ground to interfere with the orderof the Tribunal in OA 734/2006.9. On the other aspect viz., as to whether the applicant couldbe continued on stop gap arrangement until the Notification wasissued on 11.08.2006 and whether he is entitled for the servicebenefits from 30.07.2004 to 01.08.2006, we are of the view that theTribunal is justified in holding that there was no illegality incontinuing the applicant till the Notification was issued and alsothe order granting service benefits from 30.07.2004 to 01.08.2006,especially when the order of oral termination was set aside by theTribunal and came to be implemented only after the contempt petitionwas filed by the applicant. Therefore this finding of the Tribunalalso calls for no interference. 10.Accordingly, both the writ petitions are dismissed. ThePetitioner Department is directed to comply with the directions https://hcservices.ecourts.gov.in/hcservices/ issued by the Tribunal within a period of Eight weeks from the dateof receipt of this order and there will be no order as to costs.Consequently, connected Miscellaneous Petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVsl ToThe RegistrarCentral Administrative TribunalMadras BenchChennai - 600 1042 ccs To Mr.B.Shanthakumar, CGSC,SR.35972 W.P.NOS.15725 & 15726 OF 2007NG(CO)SRA(3/9/2009)