(Order of the court was made by Justice T.S.Sivagnanam) W.P.No.15725/2007 has been filed by the Postal Department challenging the order passed in O.A.No.720/2006 dated 19.10.2006 and W.P.No.15726/2007 has been filed challenging the order passed in O.A.No.734/2006 dated 19.10.2006. Since both the original applications came to be disposed of by a common order, we propose to dispose of both the writ petitions by a common order.
2. The applicant was appointed as a Gamin Dak Sevak Mail Carrier on stop gap arrangement by order dated 10.10.2002. While he was working in the said post, he was orally terminated from service on 30.07.2004. This came to be challenged by the applicant before the Tribunal by filing O.A.No.117/2007, which was allowed on 02.11.2005. The applicant filed a contempt petition in C.P.No.20/2006 to implement the said order and thereafter, the Department reinstated him as GDS MC on stop gap arrangement on temporary basis with effect from 01.08.2006. By Notification dated 11.08.2006 issued by the Inspector of Posts, Tiruvannamalai Sub-Division, applications were called for from eligible candidates for the post of Gramin Dak Sevak Mail Carrier. The Notification also stipulated the eligibility conditions and other details. The applicant applied for the said post under the Notification and simultaneously challenged the Notification before the Tribunal by filing O.A.No.734/2006.
3. It is the case of the applicant that pursuant to the interim orders granted by the Tribunal, he participated in the selection process without prejudice to his rights and contentions in O.A.No.734/2006. Apprehending that the applicant is likely to be terminated consequent to the regular selection, he filed O.A.No.720/2006 before the Tribunal. The Department resisted both the applications by primarily contending that the applicant was posted as GDS MC on stop gap arrangement and on temporary basis on 02.08.2006 in compliance of the order made in O.A.No.117/2005 and C.P.No.20/2006. It would further contend on, 11.08.2006, ten applications were received from the open market and though names were called for from the employment exchange, they were belatedly received on 18.09.2006. The first five meritorious candidates were addressed on 18.09.2006 to attend the certificate verification and all the five candidates attended the interview on 20.09.2006 and among the five, one candidate by name T.Kabalamoorthy, who secured the highest mark in the 10th Standard i.e., 344/500 in the first attempt was selected. The Department would further contend that there is no error in the selection process and hence the original applications deserve to be dismissed.
4. The Tribunal, after considering the facts and circumstances of the case and taking note of the various judgments of the Hon'ble Supreme Court of India, held that the Notification, calling for applications for public employment, should be given wide publicity and it should be published in vernacular newspapers circulated in the District and the contention of the Department that it would be cost prohibitive, cannot be accepted. On the other ground viz., stipulation of higher qualification, the Tribunal held, after relying upon the judgments of the Hon'ble Supreme Court of India, that though higher qualified candidates are not entitled to be considered for selection automatically, an additional weightage has to be given to them and the weightage has to be evaluated on the basis of the marks obtained in that higher qualification and it is for the competent authority to consider the same for assessment. The Tribunal further found that there is no error in the order dated 01.08.2006 appointing the applicant on stop gap arrangement on temporary basis pending regular appointment. The Tribunal also held that the applicant is entitled for service benefits from 30.07.2004 to 01.08.2006 and the Department was directed to comply with the said requirement. Accordingly, the Tribunal set aside the Notification dated 11.08.2006 and directed the Department to proceed with the selection process in accordance with law, in the light of the observations made by the Tribunal.
5. These orders are questioned in the above two writ petitions. Mr.B.Shanthakumar learned counsel appearing for the Department would contend that the Tribunal has committed an error in holding that the stop gap appointment of the applicant pending regular recruitment cannot be terminated at any time and it has to be compulsorily continued till regular recruitment. The appointment of the applicant on stop gap arrangement cannot give a cause of action to him and he cannot maintain the original applications. He further contended that the applicant having participated in the selection, he is estopped from questioning the selection process. He also contended that the applicant cannot take a ground that there was no wide publication of the recruitment Notification, after having applied for the post pursuant to the said Notification. He would further contend that the Tribunal ought to have taken into consideration the process adopted for filling up the post in question and the procedure adopted by the Department by sending the employment Notification to the District Employment Office, Village Administrative Officer, President of the local panchayat, Sub-Inspector of Police of the local police station and the Branch Post Master and Sub-Postmaster, which, according to him, is sufficient compliance of the publication requirement. He also relied upon a Notification issued by the Government of India stating that in respect of such posts if wide publication is to be resorted to, it would be cost prohibitive and therefore prayed for setting aside the orders passed by the Tribunal.
6. Per contra, Mr.M.Radhakrishnan learned counsel appearing for the Respondent would contend that the orders of the Tribunal calls for no interference. Admittedly, the Tribunal directed wide publicity by placing reliance on more than one judgment of the Hon'ble Supreme Court of India and further contended that in the matter of public employment, it is all the more necessary that widest publicity should be given. He also further contended that the applicant is entitled to continue in service, though he was appointed on stop gap arrangement.
7. We have carefully considered the submissions made by the learned counsel on either side as well as the materials available on record. In our opinion, the Tribunal has rightly held that the procedure adopted in publishing the employment Notification is contrary to the law laid down by the Hon'ble Supreme Court of India in Excise Superintendent, Malkapatnam Vs. K.B.N.Visweshwara Rao and others (1996 SCC L&S 1420) wherein it has been held in para 6 as follows:
" 6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidates is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for requisitioning/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning department for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be sub served. The equality of opportunity in the matter if Employment would be available to all eligible candidates."
Further the Hon'ble Supreme Court in UPSC vs. Girish Jayanti Vaghela & others (JT 2006 (2) SC 137), wherein the Hon'ble Supreme Court held as follows:
" 30.......The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under State or Union without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible candidtes get a fair chance to compete would violate the guarantee enshrined under
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 should have an equal opportunity to apply for the post called for. It does not matter as to the nature of the post. All eligible candidates should have the knowledge of such recruitment. Precisely, the Hon'ble Supreme Court of India, on this issue, has held that
Article 16 of the Constitution of India has specifically provided for equality of opportunity in the matter of public employment and therefore any attempt, which would defeat the very object, is to be held illegal and the Union or a State has to ensure that all eligible candidates get a fair chance to compete for such recruitment. Therefore we find no ground to interfere with the order of the Tribunal in OA 734/2006.
9. On the other aspect viz., as to whether the applicant could be continued on stop gap arrangement until the Notification was issued on 11.08.2006 and whether he is entitled for the service benefits from 30.07.2004 to 01.08.2006, we are of the view that the Tribunal is justified in holding that there was no illegality in continuing the applicant till the Notification was issued and also the order granting service benefits from 30.07.2004 to 01.08.2006, especially when the order of oral termination was set aside by the Tribunal and came to be implemented only after the contempt petition was filed by the applicant. Therefore this finding of the Tribunal also calls for no interference.
10. Accordingly, both the writ petitions are dismissed. The Petitioner Department is directed to comply with the directions issued by the Tribunal within a period of Eight weeks from the date of receipt of this order and there will be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
Vsl To The Registrar Central Administrative Tribunal Madras Bench Chennai - 600 104