JUDGMENT M. Katju and Rakesh Tiwari, JJ.
1. This bunch of five writ petitions is directed against the judgment dated 12.2.2001 (Annexure-1 to the writ petition] delivered by the Central Administrative Tribunal, Allahabad, (hereinafter called as 'C.A.T.') in five connected original application numbers (hereinafter called as 'O.A.') 1038 of 1998. 1012 of 1998. 789 of 1999, 802 of 1999, 812 of 1999 which were disposed of by the common judgment dated 12.2.2001, aforesaid.
2. These five O.A. Nos, mentioned above, were filed by the employees of Bharat Sanchar Nigam, which had cancelled their selection and appointment to the post of Stenographer. Grade III, in the Bharat Sanchar Nigam Ltd. True copy of the O.A. filed by the respondent No. 1, is Annexure 3 to the writ petition.
3. The applicant employees prayed before the Tribunal that the order of cancellation of their selections/appointments as Stenographers. Grade III be quashed.
4. The relevant facts of the case are that an advertisement No. 3 of 1993 was published in the newspapers by the Chief General Manager, Telecommunications. Lucknow calling for applications for the said posts. About 4,000-5.000 candidates applied, though the applications were not invited through the Employment Exchange, but a clause was incorporated in the advertisement that only those applicants will be considered who are registered with the Employment Exchange.
5. The first test was held on 14th/15th April, 1995. Those who qualified in the test were directed to appear in the short-hand test held on 20th/21st January. 1996. The result was declared on 15th March. The successful candidates, after Medical Examination and verification, were offered appointments and joined on various dates in the month of June/July, 1996. The applicants were successful candidates and they continued to work for more than two years, when a notice dated 12.9.1998 (vide Annexure-A 12 to the O.A. filed before the Tribunal, which is Annexure-3 to the petition) was published in Hindi Daily Newspaper, Kanpur Edition, notifying that the Chief General Manager, Telecommunications. Lucknow, has cancelled the appointments on the sole ground that the selection was not done by the Staff Selection Commission.
6. Subsequently, the services of all the applicants were terminated by order dated 30.6.1999 (vide Annexure-2 to the writ petition) by one month's notice. This impugned order was challenged by the employees before the C.A.T. by the aforesaid five O.As. The C.A.T. allowed all the five O.As. and set aside the impugned order of termination. The Bharat Sanchar Nigam Ltd., has filed this and four other writ petitions before this Court. All these five writ petitions have been heard and are being decided by this Court by this common Judgment, as common questions of facts and law are involved.
7. On behalf of the petitioners, it was urged that the selection was against the Rules and the appointments were temporary in nature and hence the Bharat Sanchar Nigam has a right to terminate the services of the respondents without giving any show-cause notice or opportunity of hearing.
8. Heard learned counsel for both the parties.
9. There is no dispute that the Bharat Sanchar Nigam Ltd.. has not framed statutory Rules for recruitment for the post of Stenographer, Grade III, and that the recruitment on the said post is governed by executive instructions, issued by the Government of India from time to time. There is also no dispute that all the applicants were qualified and there is no allegation of any fraud or misrepresentation in appointments of the employees.
10. From the record, it appears that Parliament by a resolution established the Staff Selection Commission for selection of staff of various departments including the Department of Telecommunications. The Government of India, thereafter, issued instructions for recruitment of staff, which are annexed with petition Nos. 20440 of 2001, 20433 of 2001, 20460 of 2001. 20459 of 2001 and 20438 of 2001. 123 posts of Stenographers were lying vacant in the Bharat Sanchar Nigam Ltd., as is evident from the letter dated 7.1.1993. Copy of the letter dated 7.1.1993 is Annexure-A 3 to the O.A. filed before the Tribunal (Annexure-3 to the writ petition). The Department of Telecommunication informed the Staff Selection Commission about the vacancies for making recruitment by letters dated 6.3.1991, 10.11.1991, 10.12.1991. 7.1.1992. 5.2.1992 and 7.1.1993 but the Staff Selection Commission failed to make any recommendation for 33 posts, which were to be filled up by recruitment by outside candidates.
11. Sri N. Vittal, an officer on special duty visited the office of the General Manager. Telecommunication, Lucknow on 21st September. 1993, vide para 6 of the counter-affidavit of respondent No. 1. He issued a note to the D.D.G. (E)/D.D.G. (Personnel), U. P. Circle, Lucknow directing him. to recruit candidates from outside, by getting names from the Employment Exchanges, provided there was no ban existing on filling up of the posts of Stenographers at the circle level, vide Annexure-C.A. 3.
12. Thereafter the Chief General Manager requested the Staff Selection Commission by letter, dated 26.10.1993 (vide Annexure-C.A. 4) to recommend names of suitable candidates for the posts but no recommendation was received from the Staff Selection Commission. Hence, he issues the advertisement No. 3 of 93 inviting applications from the open market for appointments to the posts of Stenographers. Grade III.
13. The Chief General Manager. Telecom., Lucknow by his letter dated 19.1.1994 (vide Annexure-C.A. 5) informed the Heads of Telecom Circles and Administrative Officers, inter alia, as under :
"Subject : Filling up of vacant post of Stenographer.
Sir, Kindly refer to this office letter No. 27.1./87-T.E.-II dated 11.7.1991 for the recruitment from the open market in any of the existing or restructured cadres of Group 'C' and "D". except in the cadre of J.T.O. has been banned.
2. In view of the request received from the various field units seeking permission for filling up of existing vacancies in the cadre of Stenographers, the existing instructions issued vide this office letter referred to above have been received. Accordingly, 1 am directed to convey the approval of the Telecom Commission for relaxation of the ban order to the extent of filling up of vacant posts of Stenographers Grade III as a one time measure. Wide publicity should be given amongst the departmental employees for filling up the existing posts of Stenographers. It may also be ensured that direct recruitment from the open market should be resorted to only if suitable persons are not available within the department and that this should be limited to the essential minimum number of Stenographers needed for their work."
14. The above letter shows that the ban order was relaxed provided wide publicity for recruitment from open market was given. After holding the selection, the Assistant Director. Telecom (Recruitment) informed the concerned officers. that a departmental examination has been organised on 19.8.1994 but only two candidates appeared. He again sent a letter dated 12.2.1996, which reads as under :
"Subject : Filling up of vacant posts of Stenographers.
Kindly refer to this office letter number even dated 19.1.1994 on the subject noted above vide which the circles were given permission to resort to direct recruitment of Stenographers from the open market in relaxation of the ban orders. The said permission was given only as a one time measure and to meet only the most pressing requirements.
The departments have objected to the direct recruitment of Stenographers instead of following the prescribed procedure of recruitment through Staff Selection Commission.
In view of the above, no further recruitment from the open market should be resorted to. Only the prescribed procedure for recruitment through Staff Selection Commission may be followed. The number of Stenographers recruited in terms of this office letter dated 19.1.1994 may be intimated to this office. The details of selection taken to approach the Staff Selection Commission before the recruitment from open market was resorted to may also kindly be intimated along with the reply, if any, received from the Staff Selection Commission.
The above information may please be sent by FAX within 10 days positively.
Sd. B. S. Verma Director (T.E.)."
15. Copy of the letter is Annexure-
C.A. 3 to the petitioner's counter-affidavit filed before the Tribunal. It appears that copy of this letter dated 12.2.1996 is not on the record of this petition, but it is on the record of connected Writ Petition No. 20460 of 2001, where it is Annexure-4 to the said Writ Petition No. 20460 of 2001.
16. Another important letter dated 5.2.1998 was sent by the Chief General Manager, which narrates the entire history of this recruitment, is quoted below :
"SUBJECT : Filling up the vacant posts of Stenographers Grade III Ref. : Dir (T.E.) DOT No. 2-4-
/93 T.E. II da. 19.98 and D.O. No. 2-45/96-
VM-11 dated 10.11.1997.
1. This is in connection with the regularisation case of examination/selection of Stenographers Grade III from open market. The details of the case has already been reported to Shri P. S. Dhillon, Director (T.E.) through the D.O. letter of Shri D. P. Mlshra, Dy. G.M. (A) of his office letter No. Rectt/M-47/TA/92/5, dated 19.12.1997. Now keeping in view the Directorate instructions, which have been communicated to me (copy enclosed) through D.O. letter of Shri Ashutosh Pandey, Director (VM) referred above, the instant case has since been examined and my observations on the subject are given below.
2. in this regard, I would like to mention that there was acute shortage of Stenographers in U.P. (E) Circle. Against 123 posts of Stenographers Grade III, only 57 were working and 66 of acute shortage of Stenographers in the circle.
3. Shri N. Vittal, the then O. S. D . Telecom Commission during his visit to Lucknow could guess the pathetic situation and keeping in view the earnest requirement of Stenographers had kindly granted the permission to recruit the Stenographers in the interest of service.
The recruitment process was started on specific instructions of Shri N.
Vittal, the then O.S.D.
Telecom Commission. His decision was conveyed to this office vide his letter dated 24.9.1993, which was later on confirmed by DOT letter dated 19.1.1994. Accordingly, the examination was conducted and result was declared vide this office letter dated 19.3.1996 and total 29 candidates were selected through the said letter dated 19.3.1996 and amongst them 12 candidates were allotted to U.P. (W) Circle which was lower in the merit and 7 out of them were appointed as Stenographer Grade III and they were still working in U.P. (W) Circle while 12 candidates were allotted to this Circle but none of them was given appointment in view of complaints regarding using unfair means in the examination by the candidates. The complaint was investigated by vigilance section of DOT and as per enquiry report, it has been found that amongst 29 selected candidates only two candidates were found guilty by using unfair means and none else.
Among the candidates who have not been given appointments 15 candidates have filed cases in C.A.T., Lucknow/Allahabad and High Court, Lucknow.
4. it is agreed that Dtc. vide letter No. 9-4/93-TE-II, dated 12.2.1996 has communicated that no further recruitment should be resorted to from open market, but the same could not be operated in this examination as there was acute shortage of Stenographers in this circle and the result of successful candidates was declared and it was not possible to cancel the whole process at this belated stage. However, in the above mentioned letter of dated 12.2.1996 the Directorate has also instructed to send the list of Stenographers already recruited in terms of their letter dated 19.1.1994. In compliance with the directions of the Dtc., conveyed through letter dated 12.2.1996 a list of total 29 selected candidates for the post of Stenographers Grade III was sent to Shri B. S. Verma the then Director (TE) through letter No. Rectt/ M-47/ TA/ 92/ 5, dated 30.4.1996 and since then the matter continuously being taken up with the Directorate for regularisation of selection.
5. in letter No. 9-4/93-TE-II, dated 19.1.1998 the Director (TE) Sri Dhillon has termed this selection illegal. Here I would like to mention very specifically that the said 'illegal selection' was only started when the then Chairman Shri Vittal has initiated the same in the best interest of service.
6. Apparently, the existing so-called legal procedures for recruitment of Stenographers centrally for a large country like ours is totally improper. That is why inspite of so much of shortage, much of unemployment we are failing to get the recruitment done and suffering from inefficiency. Therefore, there is immediate need for intervention of Telecom Commission as the power is vested with the Telecom Commission, Government of India to reverse and adopt the procedure initiated by Shri Vittal. the then Secretary, Telecommunications.
7. I very strongly recommend that the said selection must be regularised by giving special one time relaxation, keeping in view not only the earnest need of Stenographers in our circle but also probability of generation of several court cases if the said selection would be cancelled.
8. Seeing the present need of the Stenographer in the department and further consequences of cancellation of whole examination undersigned feels that it would not be proper to cancel the examination as a whole at this belated stage, therefore, the examination as a whole is not being cancelled. Only the candidates who have been selected and appointed because of using unfair means in the examination. their candidature shall be cancelled after observing required departmental procedure.
(Sd. Shabbir Ahmed) Chief General Manager Telecom Eastern U. P.
Telecom Circle. Lucknow."
17. Copy of this letter is Annexure-C.A. XIII-B to the writ petition.
18. Thus, it is clear that recruitment through Staff Selection Commission was relaxed due to acute shortage of Stenographers and urgent need of the department due to inaction of the Staff Selection Commission in recommending names of candidates for the posts of Stenographers inspite of requisitions made repeatedly from 6.3.1991 to 7.1.1993 and its ulter failure to discharge its duties. Hence, the Telecom Department rightly carried out the selections on the basis of one time exception.
19. In these circumstances, we are of the opinion that the selection made by the department cannot be said to be Illegal or without authority. and the candidates who were selected had been continuously working. In our opinion, the selection is not tainted by fraud or misrepresentation.
20. The jurisdiction under Article 226 of the Constitution of India is tempered with equity. The Apex Court in several cases has held that equitable considerations should also be kept in mind while deciding the cases, and appointments made pursuant to .a Selection need not necessarily be disturbed on technical grounds. References can be made to the cases of :
1. Ram Swarup v. State of Haryana, 1979 (1) SCC 168.
2. District Collector v. Vidanagam Social Welfare Residential School Society v. Tripura Sudari Devi, 1990 (3) SCC 655.
3. H. C. Pu.Ua Swamy v. Hon'ble Chief Justice, Karnalaka High Court, 1991 Supp (2) SCC 421.
These cases have been followed in a recent Judgment of the Apex Court in Buddhi Nath Chaudhary v. Abahi Kumar, AIR 2001 SC 1176.
21. Learned counsel for the petitioner has contended that the appointments made in this case amounted to back-door entries.
22. We do not agree. It was the persistent inaction of the Staff Selection Commission which led to this situation. After all, the work of the Corporation had to go on, and it could not be stopped due to the lethargy of others.
23. Learned counsel for the respondents has referred to the case of K. A. Abdul Majeed v. State of Kerala, 2001 (6) SCC 292. In which the Apex Court had held that where the appointment was made after selection pursuant to an advertisement, though not made through the Public Service Commission, it would not be said to be an appointment through back-door.
24. So far as the question of termination on the ground of temporary nature of appointment is concerned, we are of the opinion that even a temporary appointment cannot be cancelled arbitrarily at the whims of the authority and without a valid reason. If the appointment is cancelled arbitrarily without a valid reason and without following principles of natural justice, such an action is arbitrary and capricious and is hit by Article 14 of the Constitution of India and has to be struck down. It has been held by the Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597, that arbitrariness violates Article 14 of the Constitution of India.
25. We see no reason to interfere with the view taken by the C.A.T. Accordingly, all the five Writ Petition Nos. 20440 of 2001, 20433 of 2001, 20460 of 2001, 20459 of 2001 and 20438 of 2001 are dismissed. No order as to costs.