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2016 Supreme(SC) 1083
SUPREME COURT OF INDIA
J. CHELAMESWAR, ABHAY MANOHAR SAPRE, JJ.
State of Orissa - Appellant
Versus
Sasmita Pattnaik - Respondent
Civil Appeal No. 1676 of 2015 with C.A. No. 1678 of 2015, C.A. No. 1679 of 2015, C.A. No. 1680 of 2015, C.A. No. 1681 of 2015, C.A. No. 1682 of 2015, C.A. No. 1683 of 2015, C.A. No. 1684 of 2015, C.A. No. 1685 of 2015 and C.A. No. 1686 of 2015
Decided on : 28-07-2016.
For the Appellant :Mr. Vikas Singh, Sr. Advocate, Mr. Sibo Sankar Mishra, Advocate, Mr. Niranjan Sahu and Ms. Deepika Kalia, Advocates.
For the Respondent:Mr. Nilakanta Nayak, Advocate, Mr. Aniruddha P. Mayee, Advocate, Mr. Debal Kumar Banerji, Sr. Advocate, Mr. Manish Singhvi, Advocate, Mr. Merusagar Samantaray, Advocate, Mr. Lhingneivah, Advocate, Ms. Vidushi, Advocate, Mrs. Kirti Renu Mishra, Advocate, Mr. Rana Mukherjee, Sr. Advocate, Ms. Neha Sharma, Mr. D. Verma, Mr. Deeptakirti Verma, Mr. Bharat Sangal, Mr. Shuvodeep Roy, Mr. Soumyajit Pani and Mr. Vinodh Kanna B., Advocates.
For the Intervenor :Mr. Arvind Gupta and Mr. Harish Pandey, Advocates.
Headnote:
Requisition - Recruitment of Junior Assistants - The Orissa Ministerial Service (Method of Recruitment and Condition of Service of Junior Assistants in the Offices of Departments of Secretariat) Rules, 1951 - Rule 7, Rule 8, Rule 9, Rule 11 - The court discussed the recruitment process for Junior Assistants and the validity of the select list prepared by the Commission. It highlighted the inconsistency with Rule 9, the unsustainable nature of the select list, and the unconstitutional aspects of Rule 11. The court set aside the direction of the Administrative Tribunal and remitted the matters to the High Court to examine the appointment of candidates in accordance with the applicable rules.
Fact of the Case:
The State of Orissa initiated the recruitment process for Junior Assistants, resulting in the appointment of 361 candidates. The Administrative Tribunal directed the appointment of 671 candidates, leading to litigation. The High Court disposed of the writ petitions without discussion, and subsequent applications were dismissed by the Administrative Tribunal.
Finding of the Court:
The court set aside the direction of the Administrative Tribunal and remitted the matters to the High Court to examine the appointment of candidates in accordance with the applicable rules. It disapproved of the directions compelling the State to make appointments in excess of the notified vacancies without any basis in law.
Issues: Validity of the select list, appointment of candidates in excess of notified vacancies, and the authority to fill up vacancies after the exhaustion of the select list.
Ratio Decidendi: The select list prepared by the Commission was unsustainable and contrary to Rule 9. The court highlighted the unconstitutional aspects of Rule 11 and disapproved of directions compelling the State to make appointments in excess of the notified vacancies without any basis in law.
Final Decision: The court set aside the direction of the Administrative Tribunal and remitted the matters to the High Court to examine the appointment of candidates in accordance with the applicable rules. It allowed the applications for impleadment in the Civil Appeals.
ORDER :
On 15.3.1996, the appellant-State of Orissa (Department of Home) sent a requisition to the Orissa State Public Service Commission (Respondent No. 2 herein) to initiate the process for the recruitment of 100 Junior Assistants in the Ministerial Service in the Secretariat pertaining to the various departments under the Government of Orissa. Unfortunately no legal instrument either the Rules or some other document by which such posts are created are placed before us, whether such posts constitute a cadre as understood in the service law and if there is a cadre created, what is the strength of it is not very clear from the record. Nor any information in that regard placed before us.
2. Be that as it may, the fact remains that the appellant thought it fit to recruit 100 Junior Assistants and therefore initiated the process of making a requisition to the Respondent No.2.
3. A few months later (on 1.6.1996), another requisition went from the Home Department of the appellant to the Respondent No. 2 calling upon the Respondent No. 2 to initiate the process of recruitment of 200 more Junior Assistants.
4. On the receipt of above two requisitions, the Respondent No. 2 issued an advertisement dated 29.8.1996 inviting applications from the eligible candidates for filling up of a total of 300 posts of Junior Assistants. It appears from the record that (though the record is not very clear in this regard) some of these posts are meant to be filled only by candidates belonging to constitutionally protected categories, the details of which are not relevant for the present.
5. On 24.4.1997, the second respondent sent a list (calling it a 'Select List’) of 671 candidates to the appellant.
6. The procedure for recruitment in question (we are informed at the Bar) is regulated by the rules made by State of Orissa under Article 309 of the Constitution titled “The Orissa Ministerial Service (Method of Recruitment and Condition of Service of Junior Assistants in the Offices of Departments of Secretariat) Rules, 1951”. (hereinafter referred to as “1951 Rules”) Rule 7 of the 1951 Rules contemplates holding of examination for the purpose of recruitment. Rule 8 contemplates the preparation of list of successful candidates arranged in the order of merit though the rule is silent about the measure of success at such an examination. Rule 9 of 1951 Rules reads as follows:
“9. The list so prepared by the Commission shall be equal to the number of vacancies notified. The recommendation of the Commission shall remain valid for a period of one year from the date of its approval by Government. The Secretary to the Commission shall also send the application of the successful candidates to the Government in the Home Department.”
Two things are very clear from Rule 9. Firstly, the list of recruited candidates prepared under Rule 8 shall be equal to the number of vacancies notified. Secondly, such list shall remain only for one year.
7. Notwithstanding the stipulation contained in Rule 9 that the Commission shall prepare a list of successful candidates equal to the number of vacancies notified, the second respondent chose to send a list of 671 candidates on 24.4.1997. We do not find any basis for the preparation of such list either under the Rules nor any other material justifying the preparation of such a list is placed before us.
(1) However, initially the appellant chose to appoint 218 candidates out of the above mentioned 671 candidates. Admittedly, another 143 candidates out of the above mentioned 671 came to be appointed by the appellant by a subsequent proceeding dated 9.4.1999.
(2) We are informed that appointment in excess of the notified vacancies was recommended because the appellant noticed certain irregularities in the appointment of the first group of 218 candidates.
(3) In a purported bid to rectify the irregularities, 61 appointments in excess of the notified vacancies were made.
(4) Thus, in all 361 candidates out of the above mentioned 671 candidates came
