Failure to make rules for a post and reserving it for existing employees is in breach of constitutional provisions.

Barin Ghosh and Samarendra Pratap Singh JJ.

1. The appellant was engaged by the Respondent Board as a Correspondence Clerk. Subsequently he was shifted to the post of Reception Officer for six months. Though the post of Reception Officer appears to be a sanctioned post but no rules have been framed for supplying the vacancy to the said post. The appellant continued to serve on the said post even after expiry of the period of six months for which he had initially been brought on to the said post.

2. Subsequent thereto an employment notice dated 7.8.1998 was published. The said notice invited applications from existing employees of the Board to fill up the said post. The said advertisement prescribed such qualification, which the petitioner-appellant had. While prescribing the qualification, as it appears, an attempt was made so as to ensure that the appellant alone is selected ultimately to the said post.

3. This employment notice was responded by the appellant and two others. The applications were put before the Selection Committee, who scrutinised them in accordance with the criteria mentioned in the notice. Except the appellant no other applicant was found eligible to apply.

4. The appellant filed the writ petition seeking a direction for completion of selection pursuant to the said notice. In the counter affidavit the Board brought on record that it has cancelled the previous notice and has issued a further notice in order to broaden participation for selection by adding alternative qualifications also.

5. By the judgment and order impugned, the writ petition was dismissed and the learned Judge held that when there was only one eligible candidate in response to the employment notice, there is no malafide in the matter of broadening the scope of selection

6. Once an employment notice has been published, the same should be pursued unless the same had been issued erroneously or in violation of any rule governing the same. If the notice is responded by one, there is no just reason not to proceed with the selection pursuant to the notice, unless it is held that the others have been prevented from responding to the notice. Because others did not have the qualification fixed in the notice, that is no ground for cancellation of the notice.

7. However, as aforesaid, the Board has not made any rule pertaining to supply of vacancy to the said post and thereby reserving the same for its existing employees. The Board being an authority within the meaning of Article 12 of the Constitution of India was, therefore, required to make the said post open to all and sundry and could not keep the same confined to its existing employees in breach of the provisions contained in Articles 14 and 16 of the Constitution of India.

8. That having not been done, both the employment notices referred to above are bad. No recruitment pursuant to those notices can be affected by the State within the meaning of Article 12 of the Constitution of India.

9. In the circumstances, while allowing the appeal and setting aside the judgment and order under appeal, or the reasons, as stated above, we also dismiss the writ petition and quash both the employment notices referred to above. We leave it to the Board to take steps in accordance with law to fill up the post of Reception Officer, which has not yet been filled up.